Opinion
NO. 2013-CA-000546-MR
06-13-2014
ROBERT KYLE NORRIS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Cicely J. Lambert Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky James C. Shackelford Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE AUDRA J. ECKERLE, JUDGE
ACTION NO. 11-CR-001499
OPINION
AFFIRMING
BEFORE: JONES, LAMBERT, AND STUMBO, JUDGES. LAMBERT, JUDGE: Robert Norris appeals from the Jefferson Circuit Court's judgment imposing a five-year sentence upon a conviction of reckless homicide. After careful review, we affirm the judgment of the trial court.
A Jefferson County grand jury indicted Norris for the murder of Frank Garrett Coleman and for tampering with physical evidence. Norris claimed self- defense and moved to invoke the pretrial immunity provisions of Kentucky Revised Statutes (KRS) 503.085. The Commonwealth objected, and the trial court denied the motion. During the trial, the Commonwealth agreed to withdraw the tampering with physical evidence charge. The trial court instructed the jury on murder and lesser included offenses including reckless homicide based upon "imperfect" self-defense. The jury convicted Norris of reckless homicide, and the trial court sentenced him to five years' imprisonment.
Most of the underlying facts are not in dispute. There was a history of bad blood between Coleman and Norris—Norris had heard that Coleman had stabbed another individual in the past and believed Coleman had set him up in an armed robbery at the home Norris shared with his girlfriend and baby. The night of that robbery, Coleman brought an acquaintance to Norris's residence to purchase marijuana from Norris. Instead, the man pulled out a gun, ordered everyone present to empty their pockets, and took items belonging to Norris. When the man walked out the door, he fired a shot into Norris's home. Norris, Coleman, and Ray Baker, who was also present, drove around looking for the robber but could not find him. Norris became convinced that Coleman was part of the robbery and that Coleman and the acquaintance had set him up.
On May 4, 2011, (the night before the fatal shooting), Norris was at home with Ray and Dylan Baker, who were brothers, and another friend identified as Aaron. Norris's girlfriend and child were in the bedroom. Coleman showed up at the house around 2:00 a.m. Norris was surprised to see Coleman and became concerned that something might happen. Norris told Coleman to leave and Coleman went outside. Norris followed Coleman outside and punched him. The two fought with Norris "getting the best of Coleman." Norris had Coleman down on the ground and said he would let Coleman up if he did not have a gun. Norris patted Coleman down and then let him up. Norris admitted to the jury that he threatened to kill Coleman if he came back to his house. Norris said he was concerned Coleman would hurt him or his family.
The versions of the story differ somewhat about the short interim before Norris followed Coleman outside. Dylan Baker testified that as Coleman got up to leave, Norris walked through the kitchen and into his bedroom. Baker testified that Norris retrieved his pistol and put it on his bed and set his shoes beside the bed. Norris then sat on the bed, and Baker picked up the gun and told Norris, "You're not getting this." Norris replied, "All right, fuck you," and walked outside. Baker gave the gun to Norris's girlfriend and told her not to let Norris have the gun.
Norris told the jury he did not initially find his gun and did not plan on shooting Coleman unless he had to do so. However, Norris also admitted telling the police he was going to shoot Coleman that night but Coleman left the house. Norris said he came back inside after punching Coleman and went to his bedroom. Dylan Baker then appeared and handed Norris his gun. Norris did not go back outside.
The next day, May 5, 2011, Norris and two friends, Madeline Meredith and her stepbrother, Devlin Young, headed toward the zoo with Norris driving them in his car. Another car pulled up beside them on Third Street. There were a total of four people in that car, including Coleman.
LaDerrick Watson was driving the other car (a black Malibu). He testified that he, Coleman, Eric Ligon, and Dominique Robinson were on the way to pick up a transmission at a store nearby. Ligon had earlier told police he thought they were going to take Coleman over to Norris's house so Coleman could fight him.
Whatever the reason the four were together, their car pulled up alongside Norris's car. The front passenger window rolled down and Norris heard the driver ask if Norris had been in a fight with his buddy. Then the rear passenger window rolled down and Coleman yelled something that Norris did not understand clearly. Other witnesses said Coleman yelled that he wanted to fight Norris "one on one." Norris held up his arm with a brace on it and then drove away, turning from Third Street onto Woodlawn. The other car also turned onto Woodlawn behind Norris's car. Norris proceeded through two intersections with stop signs and then stopped at the intersection with Almond where a couple of cars were stopped at the traffic signal in front of Norris's vehicle.
There was some conflicting testimony about how the cars were driving. Meredith, riding in Norris's car, testified that Norris exceeded the speed limit. She initially told the jury they did not really even slow down at the two stop signs but then testified they rolled through the stop signs. Those in the vehicle with Coleman testified to the contrary. Norris claimed he was driving 50 to 55 mph and the speed limit was 35 mph.
Norris testified that as he approached the stoplight at Woodlawn and Almond, he asked Meredith to retrieve a .45 caliber pistol he had brought with him in the car that day. When the cars stopped, Norris saw out of the corner of his eye that Coleman was quickly approaching. Norris said he thought all the occupants were running up to the car. He admitted that he opened the door and "got one foot out." Norris claimed Coleman stepped into the area of his door and, "I got scared and I shot." However, he also testified that Coleman was "no farther than two feet" from his car. Norris admitted that Coleman never touched his car door, and he did not see whether Coleman had a weapon. He did not see anybody in the car with a weapon. After he shot Coleman, Norris pulled over into the left lane of the two-lane road and left.
Meredith, who was riding in the front seat of the car with Norris, testified on direct examination that she did not see anyone else get out of the car behind them other than the man Norris shot. She testified that Coleman came up beside the car, that Norris opened the door and shot Coleman. Meredith said she did not really remember if anyone else got out of the car but told police she thought all the occupants in the other car got out because she heard car doors slamming.
Devlin Young, riding in the back of Norris's car, testified on direct examination that he only saw Coleman get out of the car. On cross examination, he said he told the police there were a few people coming up to the car door. He explained that the discrepancy was due to his state of mind in seeing someone get shot.
Two disinterested witnesses also testified. Loretta Rodin was driving to the post office after getting off work at a nearby elementary school. She was in the third car back at the stoplight at Woodlawn and Almond. She heard a boom and looked in her side rear view mirror and saw a man who appeared to be getting back into a white car right behind her. A man who was bleeding badly came right beside her car and collapsed on her car door. As she attempted to get out to render assistance, the white car came around her "flying." She did not see anybody else outside of the white car.
Kenneth Smith, a local businessman, stopped his car behind a line of cars at the stoplight. As he got out of his car, one of the cars in the line in front of him pulled out and left. Smith testified he did not remember seeing anyone get out of their cars until everyone in the line did.
LaDerrick Watson (riding in the black Malibu) testified he did not see anybody else get out of the Malibu. The driver, Dominique Robinson, testified that nobody other than Coleman got out of the car until after the shot was fired. He also testified that Coleman never touched Norris's car. Norris opened the door himself, shot Coleman, and drove away. Nobody in the black Malibu had a weapon. James Ligon initially told the jury he did not get out of the Malibu, but then said he did so in order to try to stop a fight but then ran back to the Malibu when he saw Coleman shot. Ligon testified that Coleman never had a chance to open Norris's car door and that Norris opened it himself and shot Coleman.
Norris testified that before the shooting, he had heard Coleman had stabbed Justin Gregory. Gregory testified that Coleman had stabbed him four years before the trial.
At the conclusion of the trial, the jury was instructed on murder, self-defense, and all the lesser included offenses included in the murder charge. The jury found Norris guilty of reckless homicide and sentenced him to five years' imprisonment. This appeal now follows.
On appeal, Norris first argues that the trial court erred in failing to dismiss the murder charge against him due to justification and immunity from prosecution pursuant to KRS Chapter 503. Prior to trial, defense counsel filed a written motion arguing that Norris was immune from a murder prosecution under KRS 503.085 because he was acting in self-defense when he shot Coleman.
Under the proceedings established in Rodgers v. Commonwealth, 285 S.W.3d 740, 752-57 (Ky. 2009), the trial court held a hearing on Norris's motion. At the conclusion of the hearing, the trial court denied the motion, finding that immunity from prosecution for the use of deadly force is available in very limited circumstances. The trial court concluded that Norris's argument for immunity rested on the allegation that Coleman was attempting to forcibly enter Norris's vehicle or remove Norris from the vehicle. However, the trial court concluded that the proof at the hearing established that when he was shot, Coleman was still in the process of approaching the vehicle and had not touched Norris or his vehicle. Therefore, Coleman was neither removing Norris from the vehicle nor forcibly entering the vehicle. The court held that the act of running toward a vehicle cannot always and automatically be construed as attempting to assault Norris in his vehicle; however Norris's preemptive actions precluded the situation from potentially progressing to that stage. The court held that Norris's belief that he would have been removed from his vehicle does not meet the narrow statutory provisions for immunity from prosecution, and factual issues remained for the jury to decide.
Norris urges this Court to review the trial court's findings of fact in the pretrial opinion and order under a substantial evidence standard and to review the conclusions of law de novo. Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. App. 2002). When a defendant moves for application of the immunity statute, the trial court must determine if, based on the totality of the circumstances, there is probable cause which legally justifies the use of force under the controlling provisions of law. Rodgers, supra. The Court stated, "Just as judges consider the totality of the circumstances in determining whether probable cause exists to issue a search warrant, they must consider all of the circumstances then known to determine whether probable cause exists to conclude that a defendant's use of force was unlawful." Id. at 754.
A review of the record indicates that in the instant case, with the facts known to the trial court at the time of the motion, the court considered the totality of the circumstances to determine whether probable cause existed to conclude that Norris's use of force was unlawful. The trial court held, as it did throughout the trial, that this was ultimately a factual and credibility determination to be made by the jury. We find no error in the trial court's holding that Norris was not entitled to immunity from prosecution under KRS 503.085, and the trial court's findings of fact and conclusions of law are supported by the record.
As his second assignment of error on appeal, Norris argues that the trial court erred by failing to direct a verdict of acquittal on self-defense. In support of this argument, Norris argues that the testimony of the witnesses confirmed that he acted in self-defense when he shot and killed Coleman. The Commonwealth argues that Norris was not entitled to a directed verdict because he invited error by representing to the trial court that there was sufficient evidence to submit the charge of reckless homicide to the jury. Alternatively, the Commonwealth argues that there was sufficient evidence to support the conviction.
At the close of the Commonwealth's case-in-chief, Norris moved for a directed verdict on the charge of murder, arguing there was not sufficient evidence to support a verdict of either intentional murder or wanton murder. Norris specifically agreed there was sufficient evidence to submit the case to a jury on manslaughter and reckless homicide based on what is commonly called imperfect self-defense. The trial court denied the motion. At the end of all the proof, Norris again renewed his motion for directed verdict and said the argument was the same as the last time, except that there was now additional evidence from Norris regarding his genuine belief in the need for self-defense.
The Commonwealth argues that Norris's representation that there was sufficient evidence to submit the case to the jury on either a manslaughter or reckless homicide theory waived any claim of error under the invited error doctrine. The Kentucky Supreme Court stated in Quisenberry v. Commonwealth, 336 S.W.3d 19, 38 (Ky. 2011), "Quisenberry's express representation to the trial court that the evidence of facilitation was sufficient, waived his right to claim on appeal that it was not. Quisenberry is not entitled to relief from his facilitation convictions, therefore."
A review of the motion and renewed motion for directed verdict does in fact indicate that defense counsel stated to the trial court that there was arguably enough evidence to submit the case on manslaughter and reckless homicide theories. Thus, we agree with the Commonwealth the invited error doctrine does likely apply under Quisenberry. However, we also agree that there was sufficient evidence to support the ultimate conviction for reckless homicide.
In Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983), the Kentucky Supreme Court adopted the standard for sufficiency of the evidence enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). As summarized later by the Court in Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991), "If 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." In assessing the weight of the evidence, courts are required to draw "all fair and reasonable inferences from the evidence in favor of the Commonwealth." Id. Courts must be mindful that the "credibility and the weight to be given the testimony are questions for the jury exclusively." Sawhill, 660 S.W.2d at 5.
With these principles in mind, the scope of appellate review is limited. "On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly erroneous for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal." Benham, 816 S.W.2d at 187.
In the instant case, Norris was charged with murder and claimed self-defense. The trial court instructed on this theory of the case and included instructions on lesser included defenses. Ultimately, the jury's decision was a credibility question—whether they believed the testimony of the witnesses and the defendant himself. In this context, because of the history between Norris and Coleman, and because there was no physical contact between the two the day Coleman was killed, we agree with the trial court that the issue was in fact one for the jury. Thus, it was not error for the trial court to deny Norris's motion for a directed verdict, and we affirm that ruling on appeal.
Finding no reversible error, we affirm the judgment of conviction and sentence entered by the Jefferson Circuit Court on February 18, 2013, sentencing Norris to five years' imprisonment for reckless homicide.
ALL CONCUR. BRIEF FOR APPELLANT: Cicely J. Lambert
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky