Commonwealth of Kentucky v. Iris Jennings ( 2016 )


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  •                                                       RENDERED: JUNE 16, 2016
    TO BE PUBLISHED
    ("a
    $uprrmr (Court 7ariatanitt
    2014-SC-000419-DG   u
    2015-SC-000171-DG         DAT       ,,
    COMMONWEALTH OF KENTUCKY                                          APPELLANT/
    CROSS APPELLEE
    ON REVIEW FROM COURT OF APPEALS
    V.                     CASE NO. 2012-CA-001621-DG
    KENTON CIRCUIT COURT NO. 11-CR-00678-002
    IRIS JENNINGS                                                   APPELLEE/
    CROSS APPELLANT
    OPINION OF THE COURT BY JUSTICE VENTERS
    AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
    Appellee/Cross Appellant, Iris Jennings (Appellee), was with her
    boyfriend, Alvin McDaniel, when he shot Boysie Washington. 1 For her conduct
    immediately before the shooting, Appellee was convicted of one count of
    criminal facilitation of first degree assault; she was sentenced to one year
    imprisonment, probated for three years. She appealed the conviction to the
    Court of Appeals.
    1 McDaniel was convicted of two counts of first degree assault and of being a
    second-degree persistent felony offender for shooting Boysie Washington and Tarsha
    Henderson. McDaniel v. Commonwealth, 
    415 S.W.3d 643
    (Ky. 2013).
    The Court of Appeals reversed Appellee's conviction on two separate
    grounds-and remanded the case for a new trial. First, the Court of Appeals
    concluded that the jury instructions were prejudicially flawed. Second, the
    Court of Appeals concluded that the trial court had not adequately addressed
    Appellee's alleged Miranda violation. The Commonwealth sought discretionary
    review only of the instructional error issue, leaving intact the Court of Appeals'
    reversal of the Miranda issue. We granted the Commonwealth's motion for
    discretionary review. We reverse the Court of Appeals' conclusion that the jury
    instructions were flawed. The trial court did not err by not including a jury
    instruction based upon KRS 506.100(1).
    In a cross motion for discretionary review, which was also granted,
    Appellee challenged the Court of Appeals' conclusions that the trial court
    properly overruled her motions for a directed verdict and that the trial court
    had properly denied Appellee's motion to suppress evidence obtained as a
    result of the seizure and search of Appellee's cell phone. We affirm the Court of
    Appeals with respect to the issues raised by Appellee in in her cross motion for
    discretionary review. The trial court did not err when it overruled her motions
    for a directed verdict and when it denied her motion to suppress the evidence
    obtained from her cell phone.
    Because of the remand of the case by the Court of Appeals for reasons
    not brought before this Court on discretionary review, and because our
    disposition of the issues before us does not negate the purpose of the remand,
    2
    we remand the case to the Kenton Circuit Court for further proceedings as
    directed by the Court of Appeals and consistent with this opinion.
    I. FACTUAL AND PROCEDURAL BACKGROUND
    Appellee's teenage daughter got into a physical fight with a schoolmate
    whose parents are Boysie Washington and Tarsha Henderson. Although the
    facts are disputed, Appellee apparently believed that Boysie, unhappy with the
    outcome of the first fight between the two girls, instigated a second fight under
    his oversight to keep others from interfering. The police responded to the scene
    and broke up the fight.
    Angered by what he perceived as Boysie's role in getting the girls to fight
    for a second time, McDaniel, armed with a handgun, went in search of Boysie.
    Appellee got into McDaniel's car and went with him. McDaniel did not know
    Boysie and would not be able to recognize him by sight; but Appellee did. As
    the pair drove through the neighborhood, they passed Boysie and Appellee
    called out Boysie's name, thus alerting McDaniel to the location of his victim.
    McDaniel then got out of the car and shot Boysie four times, hitting him it the
    arm, ribs, thigh, and hip. McDaniel returned to the car and drove away with
    Appellee.
    Appellee was indicted for criminal facilitation in connection with the
    assault. She was tried, convicted, and sentenced as set forth above. The Court
    of Appeals reversed the conviction, in part because it found that the trial court
    had improperly instructed the jury. We address that issue first.
    3
    II. ANALYSIS
    A. Appellee was not entitled to a jury instruction-based upon KRS
    506.100(1).
    As an issue of first impression in this Court, the Commonwealth
    contends that the Court of Appeals erred when it determined that the jury
    instruction on criminal facilitation should have incorporated the language of
    KRS 506.100(1), which provides that "[a] person is not guilty of criminal
    facilitation when: (1) The crime facilitated is so defined that his conduct is
    inevitably incident to its commission."
    Citing Martin v. Commonwealth, 
    409 S.W.3d 340
    (Ky. 2013), Thornton v.
    Commonwealth, 
    421 S.W.3d 372
    (Ky. 2013), and Webster v. Commonwealth,
    
    438 S.W.3d 321
    (Ky. 2014), the Commonwealth first argues that any error in
    the failure to instruct the jury on the KRS 506.100(1) exemption was waived as
    invited error. During five discussions of jury instructions with the trial court
    noted in the record, Appellee never requested that KRS 506.100(1) language be
    included in a jury instruction; nor did she ever voice an objection to the trial
    court's instructions, which were comparable but not identical to her own
    proposed instructions. 2 Like the trial court's instructions, the proposed jury
    2 The trial court instructed the jury that Appellee could be found guilty of
    facilitation of first degree assault if it found:
    A.     That . . . [Appellee] provided Alvin McDaniel with the physical
    identification of Boysie Washington;
    B.     That Alvin McDaniel intended to use such identification for the purpose
    of committing First Degree Assault upon Boysie Washington;
    C.     That when [Appellee] provided the physical identification of Boysie
    Washington to Alvin McDaniel, she knew Alvin McDaniel intended to commit a First
    4
    instructions tendered by Appellee omitted the exemption theory set forth in
    KRS 506.100(1).
    It is fundamental that the trial judge must instruct the jury on the whole
    law of the case, RCr 9.54(1), but that duty is tempered by the parties'
    obligation to inform the court of its instructional preferences. RCr 9.54(2);
    
    Martin, 409 S.W.3d at 345
    . We are not persuaded Appellee's failure to
    specifically request an instruction on the KRS 506.100(1) exemption qualifies
    as either invited or induced error. Appellee failed to object to the trial court's
    omission of the exemption theory, but she did not affirmatively urge or
    encourage the omission of the instruction as was the case in Mullins v.
    Commonwealth, 
    350 S.W.3d 434
    , 439 (Ky. 2011). Nevertheless, we need not
    determine whether Appellee is estopped by a waiver or invitation of the alleged
    error because we conclude the omission of the KRS 506.100(1) exemption was
    not error at all.
    The Court of Appeals concluded that the failure of the trial court to
    include an instruction on KRS 506.100(1) was palpable error. Although
    Appellee's argument, as well as the rationale employed by the Court of Appeals,
    Degree Assault upon Boysie Washington and that the physical identification would
    provide him with a means to do so;
    D.    That Alvin McDaniel thereafter did commit a First Degree Assault upon
    Boysie Washington;
    AND
    E.    That after providing Alvin McDaniel with the physical identification of
    Boysie Washington, [Appellee] did not make a substantial effort to prevent the First
    Degree Assault of Boysie Washington.
    5
    is somewhat obscure and self-contradictory, we are persuaded they have
    misconceived the fundamental nature of the statute.
    Appellee contends that an instruction based upon KRS 506.100(1) was
    essential because the jury heard evidence from which it might reasonably
    conclude that Appellee's participation in the shooting of Boysie was "inevitably
    incident" to that crime because McDaniel could not have shot Boysie if Appellee
    had not identified him. Whether the principal offender would have "inevitably"
    committed the crime without the facilitator's participation is not material to the
    application of KRS 506.100(1). The exemption provided in the statute relates
    to the essential elements of the crime being facilitated as that crime is defined
    by the legislature. It has nothing to do with the particular conduct of the
    parties involved in a particular criminal event and whether the particular crime
    would have "inevitably" occurred without the facilitator's help.
    We have not heretofore had the occasion to address the purpose and
    meaning of KRS 506.100(1). Substantially similar language is also used in two
    other statutes. KRS 506.050(4) provides an analogous exemption for criminal
    conspiracy. It states: "No person may be convicted of conspiracy to commit a
    crime when . . . that crime is so defined that his conduct is inevitably incident to
    its commission." (Emphasis added). KRS 502.040(1) provides the same
    exemption for accomplice liability: "A person is not guilty [as an accomplice] for
    an offense committed by another person when: (1) The offense is so defined that
    6
    his conduct is inevitably incident to its commission . . . ." (Emphasis added.).
    See also KRS 509.050. 3
    Like KRS 506.100(1), the exemptions found in KRS 506.050(4) and KRS
    502.040(1) have also remained under the radar of judicial interpretation. The
    .1974 Kentucky Crime Commission/ LRC Commentary accompanying KRS
    502.040 ("Complicity") and KRS 506.040 ("Criminal Conspiracy") provides
    useful insight which informs our understanding of the application of KRS
    506.100(1).
    The Commentary for KRS 502.040 ("Complicity") explains:
    [KRS 502.040(1)] provides for two exemptions to the general
    doctrine of imputed liability for conduct which aids in the
    perpetration of crime. The first is for individuals whose protection
    is the very purpose of a criminal prohibition. As a consequence of
    this exemption, for example, the female party to a statutory rape
    cannot be convicted as an accomplice. The second is for a person
    who joins another in a two-party transaction that constitutes a
    crime for which criminal sanctions are imposed only on the other
    party. As a consequence of this exemption, the purchaser of an
    alcoholic drink cannot be convicted as an accomplice under a
    statute which provides a penalty only for the seller. In each of
    these examples, the offense is so defined that the conduct of the
    so-called accomplice is "inevitably incident to its commission.
    The Commentary for KRS 506.040 ("Criminal Conspiracy") states:
    3 "A person may not be convicted of unlawful imprisonment in the first degree,
    unlawful imprisonment in the second degree, or kidnapping when his criminal
    purpose is the commission of an offense defined outside this chapter and his
    interference with the victim's liberty occurs immediately with and incidental to the
    commission of that offense, unless the interference exceeds that which is ordinarily
    incident to commission of the offense which is the objective of his criminal purpose. . .
    ." (Emphasis added).
    7
    For non-inchoate offenses which are defined in such a way as to
    require concerted conduct . . . KRS 506.050(4) provides an
    exemption from the conspiracy offense for conduct of this type. It
    applies to two types of offenses, the first of which is a crime having
    as its principal element an agreement between two people, such as
    bribery. The person who gives the bribe cannot be held to have
    conspired with the person who receives the bribe. The second type
    of offense to which the exemption applies is one which is so defined
    that an offender's co party is necessarily involved in commission of
    the offense; An example is statutory rape. Because of KRS
    506.050(4), a defendant cannot be held to have conspired with his
    victim to commit this offense.
    (Emphasis added).
    Upon review and thoughtful consideration, it becomes apparent KRS
    506.050(4) is simply a codification of the well-established common law doctrine
    known as "Wharton's Rule" which has been incorporated into the modern penal
    codes of many states, 4 including Kentucky, and which the drafters of our penal
    code extended to the crime of criminal facilitation under KRS 506.080 and to
    accomplice liability (complicity) under KRS 502.020.
    The widely recognized rule of construction known as Wharton's
    Rule states that when a substantive offense necessarily requires
    the participation of two persons, and where no more than two
    4        See Commonwealth v. Fisher, 
    627 A.2d 732
    , 733 (Pa. Super. 1993) ("[A]
    person cannot be convicted as an accomplice to a crime if 'the offense is so
    defined that his conduct is inevitably incident to its commission.' 18 Pa.C.S.A. §
    306(f)(2)."); Robinson v. State, 
    815 S.W.2d 361
    , 363 (Tex. App., 1991) (quoting 2
    W. LaFave & A. Scott, Substantive Criminal Law § 6.8(e) at 165-66 (1986))
    ("Another exception is where the crime is so defined that participation by another
    is inevitably incident to its commission. It is justified on the ground that the
    legislature, by specifying the kind of individual who was guilty when involved in
    a transaction necessarily involving two or more parties, must have intended to
    leave the participation by the others unpunished . . . . Thus, under this
    exception one having intercourse with a prostitute is not liable as a party to the
    crime of prostitution, a purchaser is not a party to the crime of illegal sale.).
    8
    persons are alleged to have been involved in the agreement to
    commit the offense, the charge of conspiracy will not lie. 1 R.
    Anderson, Wharton's Criminal Law 85 Procedure s 89 at p. 191
    (1957).
    State v. Langworthy, 
    594 P.2d 908
    , 910 (Wash. 1979).
    As generally stated, [Wharton's] Rule prohibits prosecution of a
    conspiracy to commit a particular crime when the commission of
    that crime requires the participation of more than one person.
    The crimes of dueling, bigamy, adultery, and incest are the classic
    Wharton's Rule offenses. Commentators have added to that list
    the crimes of pandering, gambling, the buying and selling of
    contraband goods, and the giving and receiving of bribes.
    People v. Laws, 
    613 N.E.2d 747
    , 748-50 (Ill. 1993) (citations omitted).
    As a vestige of Wharton's Rule, KRS 506.100(1) simply provides
    that one cannot be guilty of criminal facilitation for participation in a
    crime that by its very definition requires the mutual participation of two
    or more persons. For example, the crime of sports bribery under KRS
    518.040(2) 5 is a Class D felony so defined as to require the participation
    of a sports official and a person conferring (or offering to confer) a benefit
    upon that sports official. KRS 506.100(1) precludes the state from
    charging the sports official with criminal facilitation for providing the
    briber with the means or opportunity to commit sports bribery, conduct
    that would otherwise constitute the crime of criminal facilitation. For the
    same reason, pursuant to KRS 506.050(4), the sports official could not
    KRS 518.040 (1): "A person is guilty of sports bribery when he: . . . (b) Offers,
    confers or agrees to confer any benefit upon a sports official with intent to influence
    him to perform his duties improperly."
    9
    be charged with conspiracy to commit sports bribery, and under KRS
    502.040(1), he could not be charged with sports bribery as an accomplice
    of the briber. To be clear, a culpable sports official might be guilty of
    some other offense, but under our statutory adaptations of Wharton's
    Rule, he cannot be charged with criminal facilitation of sports bribery,
    conspiracy to commit sports bribery, or sports bribery by complicity with
    the briber.
    With that background, we turn our attention back to the case at hand.
    .
    Appellee was charged with facilitating the crime of first degree assault by
    providing McDaniels with the means to commit the crime; she gave him the
    knowledge he needed to identify his intended victim. The crime facilitated was
    first degree assault, which as defined in KRS 508.010(1) does not require the
    participation of two persons; it does not as defined require one person to
    identify the victim and another to strike the blow. As a matter of law,
    Appellee's participation was not "inevitably incident" to the crime of assault.
    KRS 506.100(1) is inapplicable and stands as no barrier to Appellee's
    prosecution.
    Because the application of KRS 506.110(1) addresses itself exclusively to
    the nature of the crime and is independent of any factual particulars of the
    specific case, we cannot conceive that it would ever be an appropriate issue for
    a jury's consideration such that it would be included in jury instructions. The
    United States Supreme Court noted that "[t]he classic formulation of Wharton's
    Rule requires that the conspiracy indictment be dismissed before trial.
    10
    Wharton's description of the Rule indicates that, where it is applicable, an
    indictment for conspiracy 'cannot be maintained."' Iannelli v. U. S., 
    420 U.S. 770
    , 774 (1975). Thus, the exemption is intended to preclude prosecution as a
    matter of law; it is not a factual issue to be decided by the jury.
    For the foregoing reasons, we conclude that the trial court correctly
    omitted a jury instruction based upon KRS 506.100(1). We therefore reverse
    that aspect of the Court of Appeals' opinion.
    B. Appellee was not entitled to a directed verdict.
    The trial court denied Appellee's motions for a directed verdict and the
    Court of Appeals affirmed that decision. "On appellate review, the test of a
    directed verdict is, if under the evidence as a whole, it would be clearly
    unreasonable for a jury to find guilt, only then the defendant is entitled to a
    directed verdict of acquittal."   Commonwealth v. Benham, 
    816 S.W.2d 186
    , 187
    (Ky. 1991).
    KRS 506.080(1) provides that one is guilty of criminal facilitation to first
    degree assault "when, acting with knowledge that another person is committing
    or intends to commit [first degree assault], he engages in conduct which
    knowingly provides such person with means or opportunity for the commission
    of [first degree assault] and which in fact aids such person to commit [first
    degree assault]."
    Appellee argues that the Commonwealth's case was based entirely upon
    circumstantial evidence that does not support a reasonable inference that she
    knew McDaniel intended to shoot Boysie when she called out Boysie's name,
    11
    and that the evidence does not support the reasonable inference that her
    conduct provided McDaniel with a means to shoot Boysie. We disagree. Upon
    review of the evidence we are satisfied that the evidence easily satisfied the
    Benham standard and that the trial court properly denied her motion for a
    directed verdict. We agree that Appellee presented a plausible case in support
    of her innocence, but her evidence is not so compelling as to negate the
    contrary inferences that may reasonably be drawn. We affirm that aspect of
    the Court of Appeals' opinion.
    C. The trial court properly denied Appellee's motion to suppress the
    evidence found on her cell phone.
    After the trial court denied Appellee's motion to suppress, the
    Commonwealth introduced into evidence at trial four text messages which
    police had discovered when they examined Appellee's cell phone. Appellee
    contends that the initial seizure of her phone by police was unlawful and that
    the subsequent search of her phone, which led to the discovery of the
    incriminating evidence, exceeded the scope of the consent provided by Appellee,
    and was therefore, illegal.
    The Court of Appeals concluded that Appellee's argument with respect to
    the initial seizure of her phone was unpreserved and it declined to address that
    argument. We agree with the Commonwealth that Appellee's suppression
    motion did not challenge the seizure of her phone, and so that issue was never
    addressed by the trial court and remains unpreserved. Appellee's contention
    .
    that the police officers searched the contents of her phone beyond the limited
    12
    consent she gave them was preserved, and so we proceed to consider that
    argument.
    Soon after the shooting, police identified Appellee as a "person of
    interest" with whom they wished to speak. Appellee went to the police station
    to discuss the incident. After being asked to leave her cell phone on a
    detective's desk, she was ushered into to an interview room. According to the
    detective, police interviewers routinely take cell phones away from the
    interviewee to avoid distractions during the interview. Shortly after the start of
    the interview, Appellee was advised of her Miranda rights.
    During the interview, Appellee told the police that she and McDaniel
    exchanged text messages, and that his phone number was stored in her cell
    phone under a pet name she used for him. When the detective asked to
    examine her phone to find McDaniel's phone number, Appellee consented to
    the officer's search of her phone for that purpose. The trial court concluded
    that the officer had not improperly examined the contents of the phone in
    excess of Appellee's consent and so it denied the motion to suppress. The
    Court of Appeals affirmed that ruling.
    When reviewing a ruling on a suppression motion, we defer to the trial
    court's findings of fact if they are not clearly erroneous. Findings of fact are
    not clearly erroneous if they are supported by substantial evidence.     Simpson v.
    Commonwealth, 
    474 S.W.3d 544
    , 546-547 (Ky. 2015). Substantial evidence is
    "evidence of substance and relevant consequence having the fitness to induce
    conviction in the minds of reasonable men." Owens-Coming Fiberglas
    13
    Corporation v. Golightly, 
    976 S.W.2d 409
    , 414 (Ky. 1998) (citations omitted).
    We review the trial court's application of the law to the facts de novo.     
    Id. From the
    evidence presented at the suppression hearing, the trial court
    found that the Appellee's consent to search the cell phone for McDaniel's phone
    number was not limited to specific designated files, such as her "contacts"
    directory or her text messages. The trial court found that Appellee authorized
    the officer to look for McDaniel's number and that the detective did not extend
    his search beyond the places one might reasonably expect to find a phone
    number. After examining the phone, the officer used information gleaned from
    it to obtain a search warrant authorizing a broader examination of the phone.
    Upon review of the record, we find that the trial court's factual findings
    were supported by substantial evidence. Consequently, the trial court's
    findings are binding on our analysis whether the detective's search exceeded
    the scope of Appellant's consent.
    "Objective reasonableness" is the standard used to the measure the
    scope of a person's consent to search under the Fourth Amendment.          Florida v.
    Jimeno, 
    500 U.S. 248
    , 251 (1991) (citations omitted). We assess the scope of
    the search by asking "what would the typical reasonable person have
    understood by the exchange between the [detective] and [Appellee]?"        
    Id. Appellee's consent
    did not expressly limit the search to the phone's
    "contact" directory listings. It was objectively reasonable for the detective to
    look for McDaniels' phone number in places other than Appellee's "contacts."
    Contact information, including phone numbers, are routinely exchanged by
    14
    text messages so it is objectively reasonable to look there for a phone number.
    Furthermore, the detective testified that, although he looked at text messages
    on Appellee's phone, he did not see the particular messages at issue in this
    case until after securing the warrant. We agree with the trial court and the
    Court of Appeals that the text messages introduced into evidence were not
    subject to exclusion based upon the Appellee's premise that the search
    exceeded the consent.
    We might agree with Appellee that the detective exceeded his authority
    when he looked at photos stored on the phone. He testified that he only
    "clicked" on the photo that appeared in Jennings' contacts beside the entry
    identified as "my man." Any overreach in that aspect of his investigation did
    not produce the evidence that Appellee seeks to suppress. We therefore affirm
    the Court of Appeals' conclusion that the trial court properly declined to
    suppress the incriminating text messages.
    III. CONCLUSION
    For the foregoing reasons, we reverse the Court of Appeals' opinion insofar
    as it concluded that the jury instructions were erroneous; we otherwise affirm
    the Court of Appeals. Accordingly, we remand the case to the trial court for
    further proceedings consistent with this opinion and those portions of the
    Court of Appeals' opinion affirmed by this Court or not brought before us on
    discretionary review.
    All sitting. All concur.
    15
    COUNSEL FOR APPELLANT/CROSS APPELLEE:
    Andy Beshear
    Attorney General of Kentucky
    Courtney J. Hightower
    Assistant Attorney General
    COUNSEL FOR APPELLEE/CROSS APPELLANT:
    Kathleen Kallaher Schmidt
    Assistant Public Advocate
    16