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Clark v. Commonwealth

Supreme Court of Kentucky

February 14, 2019

JOHN DANIEL CLARK APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

          ON APPEAL FROM GREENUP CIRCUIT COURT HONORABLE ROBERT B. CONLEY, JUDGE NO. 16-CR-00003

          COUNSEL FOR APPELLANT: Emily Holt Rhorer Assistant Public Defender

          COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky Jeffery Allan Cross Assistant Attorney General

          OPINION

          MINTON, CHIEF JUSTICE

         A circuit court jury found John Daniel Clark (" JD") guilty of murder and two counts of tampering with physical evidence. The jury recommended a sentence of 35 years' imprisonment, which the trial court adopted, entering judgment accordingly. JD now appeals the judgment as a matter of right, [1]raising several issues for review. Finding no reversible error, we affirm the judgment.

         I. BACKGROUND.

         Various individuals gathered at the residence of Johnny Bill Clark ("JB"). Among them were JB, appellant JD (JB's son), Todd Anthony Rowe (the deceased victim), Samantha Clare (JD's sister and Rowe's girlfriend), and Darrell Travis Goble.

         Earlier that same day, Samantha Clare and Goble were talking inside Goble's residence when JD arrived and asked Samantha Clare to step outside to speak with him. Goble testified that as they returned, he heard JD say, "I'm going to kill him," but Goble did not know to whom JD was referring when he said this.

         Later, Rowe invited Goble to JB's residence. While there listening to music with Samantha Clare, Goble looked up and saw JB straddling Rowe's back, apparently choking him. JD then approached JB and Rowe and shot Rowe.

         Goble called 911 as he ran out of the residence. As he fled, he saw JD slide another shell into the shotgun. He then heard two more shots.

         Samantha Clare confirmed that she heard JD say he was going to hurt "somebody," telling police that JD told her that if Rowe laid another hand on her, he was going to hurt Rowe. While at JB's residence, Samantha Clare remembered hearing a thud that caused her to turn and see JB and Rowe fighting on the floor and JB had Rowe in a headlock.

         As Samantha Clare attempted to pull JB off Rowe, she saw JD coming down the hall with a shotgun. She testified that JD was frantic and screaming at them to stop because they were hurting Samantha Clare. JD then aimed the shotgun and told Samantha Clare to get out of the way. JD then shot Rowe twice, first in his left side and then in the head.

         Samantha Clare escaped the house and called 911, stating, "They killed my boyfriend. . . . Please help me before they shoot me." She also said, "They're trying to bury him and they're trying to burn him. Please help me. . . . They've been trying to get him outside the house."

         Another witness, Rhonda Prince, testified that before the incident she had a conversation with JD and two other individuals about Rowe and Samantha Clare coming into town. One of the individuals commented that he was dreading it, to which JD stated, "It's O.K. We'll get him."

         Law enforcement responding to the incident found Id. at Prince's house. Upon detaining and interviewing JD, he initially denied any involvement in the crime. JD then changed his story, admitting that "there were a few things he was not completely honest about," but he never confessed to having pulled the trigger.

         JD and JB were both charged with Rowe's murder and two counts of tampering with physical evidence. The jury found JD guilty of murder and two counts of tampering with physical evidence, recommending a total sentence of 35 years' imprisonment, which the trial court accepted, entering judgment accordingly.

          II. ANALYSIS.

         A. The trial court did not err when it denied JD's motions for directed verdict on the charges of tampering with physical evidence.

         JD claims the trial court erred by denying his motions for directed verdict on the two tampering-with-physical-evidence charges. This issue is indisputably preserved for appellate review.

         "On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for the jury to find guilt, only then is the defendant entitled to a directed verdict of acquittal."[2]

         "A person is guilty of tampering with physical evidence when, believing that an official proceeding is pending or may be instituted, he . . . [d]estroys, mutilates, conceals, removes or alters physical evidence which he believes is about to be produced or used in the official proceeding with intent to impair its verity or availability in the official proceeding[]"[3]

         JD's first charge of tampering with physical evidence stemmed from his alleged handling of Rowe's body after the shooting. When authorities arrived, they found Rowe's body outside the residence. Testimony from the examining coroner revealed that the body appeared to have been dragged over the threshold of the residence, as supported by scrape marks appearing on the back and buttocks of the body. Testimony from the doctor performing the autopsy revealed abrasions on the back that "could be" consistent with the dragging of the body across a surface. An investigating detective testified that it appeared Rowe's body had been dragged through patches of blood to the front door of the residence. Samantha Clare testified that she told the 911 dispatcher, "They're trying to bury [Rowe] and they're trying to burn [Rowe]. Please help me. . . . They've been trying to get [Rowe] outside the house."

         Application of our "generally-applied, fundamental principle that a jury verdict may properly be based upon reasonable inferences drawn from the evidence"[4] requires upholding the trial court's denial of JD's motion for directed verdict. "A jury is entitled to draw all reasonable inferences from the evidence[.]"[5] "The jury is instructed to reach its verdict from the evidence;' and if there [is] competent and relevant evidence affording a reasonable and logical inference or conclusion of a definite fact, this court will not invade the jury's province to weigh conflicting evidence, judge the credibility of witnesses and draw the ultimate conclusion."[6]

         We reject JD's argument that insufficient evidence existed to convict him of tampering with physical evidence by moving Rowe's body. Testimony from Goble and Samantha Clare established that JD shot Rowe inside the residence and that JD remained inside the residence for a period after Goble and Samantha Clare ran outside. Two lab reports proved the presence of blood on JD's clothing, shoes, and hands. Testimony from three individuals established the dragging of Rowe's body from inside the residence to outside the residence. Finally, in the minutes after the shooting, Samantha Clare told 911 dispatchers that "they" were attempting to burn and bury Rowe.

         Putting all this testimony together, the jury could logically conclude that JD, the individual who shot Rowe, intended to remove Rowe's body from the scene to avoid criminal liability. And, possessing this intent, JD altered the state of Rowe's body by changing its condition and removing it from its original location-dragging the body from inside the residence to the outside, producing the abrasions and scrapes found on the body. The trial court did not err in denying JD's motion for a directed verdict on this charge.

         JD's second evidence-tampering charge stemmed from the apparent attempted cleanup of Rowe's blood from surfaces inside the residence. An investigating detective testified to seeing bloody smears on the countertop and floor and rags and a white towel soaked in blood, all evidence of an attempt to wipe traces of Rowe's blood. The detective testified that he found a jug of bleach on the kitchen countertop, although he admitted that he could not detect any odor of bleach inside the residence. Finally, Prince testified that, upon arrival at her house, JD asked her if he could wash his hands, which she noticed had blood on them.

         Considering this testimony and the other evidence presented, the jury could have reasonably believed that JD intended to wipe away traces of blood from the residence to avoid criminal liability. In effectuating this intent, the removal of some of the blood from the floor with rags and a towel altered the condition of the crime scene. The trial court did not err in denying JD's motion for a directed verdict on this evidence-tampering charge.

         B. No reversible error occurred from the trial court's jury instructions on protection of another.

         JD argues that the trial court committed reversible error by improperly instructing the jury on his protection of another defense. The Commonwealth disputes the preservation of this issue, but the Commonwealth's preservation argument does not require fuller analysis here because the trial court's error is harmless nonetheless.

         The trial court agreed that the jury should be instructed on the full range of homicide crimes, including both perfect and the so-called imperfect protection of another defense. The evidentiary basis for the giving of perfect and imperfect protection of another instructions was JD's defense theory that he shot Rowe amid an affray between JB and Rowe to protect JB from being harmed by Rowe.

         JD makes two arguments on this issue. First, he argues that the trial court misstated the law in its second-degree manslaughter and reckless homicide instructions. Second, he argues that the trial court's instructions did not allow the jury to consider fully the imperfect protection of another defense because the instructions did not comply with this Court's stated model instructions as embraced in Commonwealth v. Hager.[7]

         The Commonwealth concedes error in the trial court's jury instructions as to the second-degree manslaughter and reckless homicide instructions but insists that the trial court's error did not prejudice JD. We agree that the trial court's instructions on second-degree manslaughter and reckless homicide were erroneous, but we hold this error is harmless because it had no impact on the jury's verdict. We also hold that any purported error arising from the instruction's nonconformance with Hager is harmless.

         To instruct the jury on the protection of another defense, JD tendered for the trial court's consideration a single jury instruction that contained both perfect and imperfect protection of another theories. He also tendered a murder instruction that incorporated the protection of another defense by requiring the jury, among the other requisite elements of the offense, to find that JD was not privileged to act in protection of another if the jury believed JD shot Rowe.

         The instructions given by the trial court defined perfect protection of another followed by a murder instruction that mirrored the one tendered by JD. But the trial court incorporated imperfect protection of another into the ...


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