Released for Publication May 8, 2014.
ON APPEAL FROM MONROE CIRCUIT COURT. HONORABLE EDDIE C. LOVELACE, JUDGE. NO. 10-CR-00109-002.
FOR APPELLANT: V. Gene Lewter, Department of Public Advocacy, Frankfort, Kentucky.
FOR APPELLEE: Jack Conway, Attorney General, Jeffrey Allan Cross, Assistant Attorney General, Office of Criminal Appeals, Attorney General's Office, Frankfort, Kentucky.
Appellant, Jonathan Young, was convicted of murder by complicity, first-degree robbery by complicity, and second-degree arson by complicity. On appeal, he alleges three errors: (1) that he was entitled to a directed verdict of acquittal on the charge of murder; (2) that he was entitled to a directed verdict of acquittal on the charge of robbery; and (3) that the trial court committed palpable error by failing to require the jury to find any state of mind on the complicity counts. For the reasons set forth herein, we reverse Appellant's convictions and sentence.
During the early morning hours of August 26, 2010, fire and rescue workers responded to a report of a house fire at the home of Thomas Max Martin. The responders found the home totally engulfed in flames and discovered Martin dead inside the home. Although his body was badly burned, there were two suspicious round holes in his skull. An autopsy of Martin's body confirmed that his cause of death had been two gunshot wounds to the head, not the fire at his residence.
Police soon learned that on the evening of the fire, a neighbor had visited Martin at his home at approximately 10:00 p.m. on August 25, and that at the time he had visited, two other men had been with Martin. The neighbor stated that one of the men went by the name " Jess." This information led police to focus their investigation on Jesse Parke and his eventual co-indictee, the Appellant.
Appellant spoke with police numerous times during the murder investigation. During his first interview, he stated that he and Parke had gone to the victim's house on the day of the fire between 6:30 p.m. and 7:00 p.m., but claimed they had left " right at dark." He stated he had seen Martin's shotgun at the home but no other guns, which was contrary to several other witnesses' statements that Martin always kept a handgun in his pocket or on the table next to his recliner. He further stated that when he left Martin's home, Martin was alive and sitting in his recliner, and that he had gone outside first and Parke soon joined him.
During his second interview, police confronted Appellant with the neighbor's statement that Appellant and Parke had been at Martin's home much later than he originally stated. Although he initially remained adamant that he left Martin's around nightfall, he eventually admitted he could have left as late as 9:30 p.m. or 10:00 p.m. He stated that after he left Martin's home, he went to Parke's house for a time,
and then to his own home to go to bed. He claimed that Parke had called him before daylight and advised " some business" was going to be " taken care of" and then Parke had later told him " the deed was done." Appellant indicated that he understood this conversation to mean that a particular third-party had killed Martin and he denied having anything to do with the victim's death.
Police investigated Appellant's claim of third-party involvement in Martin's death, determined it was not credible, and interviewed him a third time. In this interview, he claimed that Parke had contacted him between 2:00 a.m. and 3:00 a.m. and told him not to be around Martin's home because " bad shit" was going to happen--namely, that a third-party was going to kill Martin. Parke then contacted him a second time and told him Martin's house was on fire. Appellant stated he drove to Martin's house to see that it was on fire and later met with Parke so they could keep their stories straight because they thought it looked suspicious that they had both been at Martin's house the night of the fire. Appellant continued to maintain that a third-party killed Martin and that neither he nor Parke had killed him. After a short break in this interview, Appellant changed his story again, claiming he left Martin's house first, Parke exited behind him, and that they drove by the house later at Parke's suggestion and saw that it was on fire.
A fourth interview was conducted at Appellant's request. During this interview, he stated that Parke shot Martin with Martin's own handgun because Martin had offered Parke money to have sex with Parke's girlfriend. According to Appellant, when the murder occurred Martin had been sitting in his recliner when Parke shot him in the head from behind, and that he had been sitting in a chair next to Martin. Parke had then poured an accelerant throughout the house and set it on fire. He stated that Parke had taken the handgun with him when they left Martin's house at approximately 2:30 a.m., and that he and Parke had later returned to the home and Parke reignited the fire after he discovered it had not continued to burn. During this interview, Appellant tried to distance himself from the murder, claiming that Parke had signaled to him an intention to kill Martin, and that he had declined to participate. He also stated that in response to a text from Parke stating his intention to kill Martin, he responded indifferently.
During his final interview, Appellant initiated a recorded phone call to Jesse Parke to help police gather more information about the murder, diagrammed the location of Martin's wounds, and provided police with a four-page written statement detailing the night of the murder.
During this interview, Appellant also provided details about robbing Martin after he had been murdered. In his written statement, Appellant claimed that Parke had taken Xanax tablets from the victim's house, as well as the victim's wallet containing $280, and that the pair had split the proceeds later that night. He also acknowledged that prior to the night of the murder, he and Parke had discussed Martin owning a metal box containing thousands of dollars, but he denied going to the house to rob the victim.
Appellant was charged with murder, first-degree robbery, and second-degree arson. After a jury trial, Appellant was convicted of murder by complicity, first-degree robbery by complicity, and second-degree arson by complicity. He was sentenced to sixty-five years' imprisonment and now appeals his conviction and sentence as a matter of right. See Ky. Const. § 110(2)(b).
A. Directed Verdict for Murder
Appellant argues the trial court erred by denying his motion for a directed verdict on the charge of murder because there was insufficient evidence that he had acted in complicity with Parke in the murder of Martin. The issue was preserved for appeal.
A trial court presented with a motion for a directed verdict " must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth" and " [i]f the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given." Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). On appellate review, a directed-verdict decision will be reversed only " if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt." Id.
Appellant was convicted of murder by complicity under KRS 502.020, which has been recognized as containing " two separate and distinct theories under which a person can be found guilty by complicity." Smith v. Commonwealth, 370 S.W.3d 871, 876 (Ky. 2012). KRS 502.020(1) concerns " complicity to the act" and applies when the principal actor's conduct constitutes the criminal offense. Id. KRS 502.020(2), on the other hand, recognizes liability for " complicity to the result" and is appropriate where the result of the principal's conduct constitutes the criminal offense. Id. On appeal, Appellant argues there was insufficient evidence to convict him of murder by complicity under either KRS 502.020(1) or (2).
The " general rule" of accomplice liability is that it reaches only crimes that defendants intend or had a conscious objective to commit. George G. Seelig, Kentucky Criminal Law § 3-3(c)(1) at 111 (2d. ed. 2008). This notion is embodied in KRS 502.020(1). KRS 502.020(2), however, expands upon the general rule and imposes accomplice liability on those persons who participate in conduct causing ...