BRIEF FOR APPELLANT: Cicely J. Lambert Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Wm. Robert Long, Jr. Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE SUSAN SCHULTZ GIBSON, JUDGE
ACTION NOS. 16-CR-000335 AND 17-CR-003831 OPINION
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BEFORE: ACREE, LAMBERT, AND SPALDING, JUDGES. SPALDING, JUDGE: Appellant B. J. Starlight ("Starlight") was convicted of a single charge of second-degree escape. Starlight asserts the trial court erred in refusing to instruct the jury as to the "choice of evils" defense. Further, he asserts the trial court erred by excluding as hearsay his testimony concerning statements made to him by his medical providers. After a careful review of the record, we affirm.
In early 2016, Starlight was incarcerated at the Community Corrections Center ("CCC"), part of the Louisville Metro Detention Center. On January 19, 2016, Starlight obtained a pharmacy release which permitted him two hours, plus a four-hour grace period, to walk five to ten minutes to the University of Louisville ("U of L") pharmacy. Starlight asserts that his pass was a medical, not pharmacy, pass, and that instead of walking to the U of L pharmacy, he traveled to the Lion's Eye Center, where he was scheduled to have eye surgery.
The Lion's Eye Center apparently declined to perform surgery on Starlight. Starlight testified that a physician from the Lion's Eye Center telephoned CCC, and CCC refused to consent to Starlight's admission to U of L Hospital. Starlight did not return to CCC. Instead, the following day, he had an acquaintance drive him to a hospital emergency room in Lexington, Kentucky. While at the Lexington hospital, Starlight became aware that hospital security was "getting information over the fax machine and officer's radio that the police were looking for him." Appellant's Brief, at p. 3. It is undisputed that Starlight then "unplugged himself" and left the hospital. Id.
The officer on duty at CCC testified that no such telephone call was received by CCC.
On or about January 27, 2016, Starlight presented at Baptist Health Hospital in Richmond, Kentucky. Baptist Health Hospital discharged Starlight that day. Starlight then waited for the city bus on the hospital's property, intending to travel back to Lexington, Kentucky for treatment of a heart condition, excess fluid, and high blood sugar. Starlight was arrested by the Richmond Police Department on an outstanding warrant while on the hospital premises. He was returned to Jefferson County, where he was released on his own recognizance and obtained surgery.
Starlight testified concerning his state of mind, explaining he felt a "fear factor" and felt that CCC would not help him. He testified that he believed that if he stayed in CCC he would die. He testified he did not phone the CCC because he only had one phone number and had lost it, but that he planned on returning to CCC once he had his surgery. Starlight testified that a medical provider at the Lion's Eye Center told him he was a "walking dead man." The Commonwealth objected, and the trial judge admonished the jury.
During the penalty phase, the Commonwealth presented evidence that Starlight was a first-degree persistent felony offender ("PFO I"). The jury recommended three years' imprisonment for the escape charge and fifteen years for PFO I. The trial court elected to give Starlight a lesser sentence than the jury's recommendation and sentenced him to ten years' imprisonment. This appeal followed.
A. The trial court did not abuse its discretion in refusing to instruct on a choice of evils defense.
"In a criminal case, it is the duty of the trial judge to prepare and give instructions on the whole law of the case, and this rule requires instructions applicable to every state of the case deducible or supported to any extent by the testimony." Taylor v. Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999) (citing Kentucky Rule of Criminal Procedure (RCr) 9.54(1) and Kelly v. Commonwealth, 267 S.W.2d 536, 539 (Ky. 1954)). "However, the trial court has no duty to instruct on theories of the case that are not supported by the evidence." Hunt v. Commonwealth, 304 S.W.3d 15, 30 (Ky. 2009) (citing Payne v. Commonwealth, 656 S.W.2d 719, 721 (Ky. 1983)). "The trial court's decision not to give a jury instruction is reviewed for abuse of discretion." Id. at 31; Sargent v. Shaffer, 467 S.W.3d 198, 204 (Ky. 2015). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
In the case sub judice, the trial court found the facts did not warrant an instruction on the choice of evils defense. We hold the trial court did not abuse its discretion.
Pursuant to KRS 503.030(1), illegal conduct may be justifiable where an offender "believes it to be necessary to avoid an imminent public or private injury greater than the injury which is sought to be prevented by the statute defining the offense charged[.]" As noted by a panel of this Court in Beasley v. Commonwealth, 618 S.W.2d 179 (Ky. App. 1981), overruled on other grounds in LaPradd v. Commonwealth, 334 S.W.3d 88 (Ky. 2011), a choice of evils instruction is only proper if the following contingencies are met:
Kentucky Revised Statues.
Relying on Commonwealth v. Hager, 41 S.W.3d 828, 833 (Ky. 2001), the Court in LaPradd held that once a defendant produces evidence to justify a choice of evils instruction, the burden is on the Commonwealth to disprove the defense. Beasley was overruled to the extent it held otherwise.
(1) that the person believes the necessity of his action is mandated by his subjective value judgment (this must be weighed by the reasonableness standard);Id. at 180 (citation omitted).
(2) that such action must be contemporaneous with the danger of injury sought to be avoided.
(3) that the injury is imminent, requiring an immediate choice if to be avoided; and
(4) that the danger or injury sought to be avoided must be greater than the penalty or offending charge occasioned by the action chosen by the party.
Therefore, to obtain an instruction on the choice of evils defense, "it must be shown that defendant's conduct was necessitated by a specific and imminent threat of injury to his person under circumstances which left him no reasonable and viable alternative, other than the violation of the law for which he stands charged." Senay v. Commonwealth, 650 S.W.2d 259, 260 (Ky. 1983). The term imminent is defined in KRS 503.010(3) as "impending danger."
In Senay, the defendant was convicted of possession of a handgun by a convicted felon. In upholding the trial court's rejection of the choice of evils instruction, the Kentucky Supreme Court held:
[T]he danger presented to the defendant must be compelling and imminent, constituting a set of circumstances which affords him little or no alternative other than the commission of the act which otherwise would be unlawful.650 S.W.2d at 260.
In Bates v. Commonwealth, 145 S.W.3d 845 (Ky. App. 2004), the defendant was charged with second-degree escape. Bates requested instructions on duress and choice of evils. Id. at 846. In holding the trial court did not err in refusing to give the instructions, this Court noted that there was a "lack of imminent threat" because Bates remained in Washington State "long after the alleged threat had passed" and "for five months before being apprehended." Id. at 847-48. This Court adopted the standard set forth in U.S. v. Bailey, 444 U.S. 394, 412-13, 100 S. Ct. 624, 635-36, 62 L. Ed. 2d 575, 592 (1980), which provides:
[I]n order to be entitled to an instruction on duress or necessity as a defense to the crime charged, an escapee must first offer evidence justifying his continued absence from custody as well as his initial departure and that an indispensable element of such an offer is testimony of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force.(Footnote omitted.)
In Burke v. Commonwealth, 322 S.W.3d 71 (Ky. 2010), the trial court rejected the defendant's request for a choice of evils instruction after he fled a halfway house, believing he would be robbed or killed by other residents. The Kentucky Supreme Court explained:
In this case, the danger of Appellant being seriously injured or killed was not "imminent." Appellant testified that after his attackers initially threatened him, they left him alone. Hours later, Appellant undertook his escape without ever reporting the alleged attacks or the threat to the halfway house authorities or to the police. Had Appellant reported the attack to the proper authorities, they could have prevented the harm he feared. Thus, a jury could not reasonably conclude that Appellant's conduct was "necessary to avoid an imminent public or private injury."Id. at 74 (emphasis original).
In Damron v. Commonwealth, 687 S.W.2d 138 (Ky. 1985), the defendant was charged with first-degree escape and sought a choice of evils instruction. He testified he escaped from jail because it was a "matter of life or death." Id. at 139. He further testified he "was ill while in jail, lost weight, and suffered severe chest pains." Id. Finally, the defendant asserted he was "denied medical attention" and "felt that 'it was serious enough that [his] life was in jeopardy.'" Id. The Court upheld the trial court's denial of the choice of evils instruction, holding there was insufficient evidence of "a specific and imminent threat to his person . . . to justify the giving of the instruction." Id. (citing Senay, 650 S.W.2d 259).
Having reviewed the record and considered the case law, we hold that Starlight failed to demonstrate imminent injury as a matter of law. Moreover, his subjective belief in the necessity of his action was not reasonable. Finally, his actions were not contemporaneous with the danger of injury sought to be avoided. Beasley, 618 S.W.2d at 180.
First, the imminency requirement was simply not met sufficient to justify the requested instruction, as a matter of law, because of the lapses in time between Starlight's escape from CCC and the seeking of medical help. Starlight did not seek treatment at the Lexington hospital until approximately twenty-four hours after he failed to return to CCC. Then, once he fled the Lexington hospital, he did not appear at the Richmond hospital until several days later. He was absent from the CCC for at least seven days without contacting the CCC. There was no testimony or evidence at trial as to Starlight's whereabouts, activities, or medical condition during the intervening days other than his treatment in Lexington, Kentucky on January 20 and Richmond, Kentucky on January 28. In Burke, 322 S.W.3d at 74, the Court held that a choice of evils instruction was unwarranted because the defendant escaped "hours" after the threat of injury. Under the facts and circumstances of the instant case, and considering the time discrepancies noted above, we hold the trial court did not abuse its discretion in refusing the choice of evils instruction based on Starlight's failure to show an "imminent" harm.
Second, we hold Starlight did not show a reasonable subjective belief in the necessity of his action. Although he testified that CCC was derelict in issuing medical passes and would not consent to his treatment at U of L, Starlight made his way to a hospital in Lexington, Kentucky. If Starlight had a reasonable belief that he was in danger of dying, he would not have "unhooked" himself and voluntarily left that hospital.
Third, the Richmond hospital discharged Starlight. This, like Starlight's action in leaving the Lexington hospital, weighs against a finding of a "contemporaneous" imminent injury. Finally, under Bates, supra, and Bailey, supra, Starlight did not make a "bona fide effort to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force" given the undisputed fact that he remained at large for a period of approximately seven days from the date he left the Lexington hospital until he appeared at the Richmond hospital. There was no accounting of his whereabouts during the interim period. These facts demonstrate that Starlight's beliefs were not reasonable; that there was no "contemporaneous" imminent injury; and that Starlight's testimony is undermined by his undisputed voluntary actions.
The trial court's decision as to the instructing of the jury is reviewed on an abuse of discretion standard. Based on the evidence introduced at the trial, the trial court did not abuse its discretion to not grant the proposed choice of evils instruction for the jury's consideration.
B. The trial court did not abuse its discretion in holding the statements made by medical providers to Starlight were inadmissible.
Generally, we review a trial court's evidentiary determinations for an abuse of discretion. Mason v. Commonwealth, 559 S.W.3d 337, 339 (Ky. 2018).
At the trial, Starlight attempted to testify to numerous statements made by his medical providers to him, including a purported statement by a physician at the Lion's Eye Center that he was a "walking dead man." The Commonwealth objected on the basis that the statements were hearsay. Starlight's counsel argued the statements were not being offered for the truth of the matter asserted, but rather, as probative of Starlight's state of mind. The trial court sustained the objections and admonished the jury.
In ruling on the evidentiary issue and sustaining the objection, the trial court explained: "He's not testifying as to his state of mind, he's testifying as to whole conversations that he's had." Essentially, the trial court found the disputed testimony went beyond state of mind testimony and therefore did not constitute non-hearsay under KRE 801(c).
Kentucky Rules of Evidence.
KRE 801(c) provides: "'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."
A related, but separate, rule is that hearsay is not excluded where it is offered to prove the defendant's state of mind. KRE 803(3) provides:
Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health)[.](Emphasis added.)
KRE 803(3) will not avail Starlight because the physicians are the declarants of the statements at issue, not Starlight. See Moseley v. Commonwealth, 960 S.W.2d 460, 462 (Ky. 1997) (rejecting defendant's argument under KRE 803(3) because "the statements were offered to prove Appellant's [defendant's] state of mind and KRE 803(3), by its very language, only applies to prove the state of mind of the declarant, i.e., the victim in this case"); St. Clair v. Commonwealth, 319 S.W.3d 300, 318-19 (Ky. 2010), as modified on denial of reh'g (Sept. 23, 2010) ("[T]he state-of-mind exception to the hearsay rule is only applicable when the declarant makes a statement about his or her own state of mind.").
Finally, as previously noted, the requirements of imminency, reasonable belief, and contemporaneousness must be satisfied to justify an instruction on choice of evils. Beasley, 618 S.W.2d at 180. Even if the statements of medical personnel had been introduced as nonhearsay or under KRE 803(3), Starlight failed to satisfy the Beasley factors sufficient to warrant an instruction. This is so because of the lapses of time noted above, as well as Starlight's own voluntary actions as detailed herein. We cannot discern an abuse of discretion by the trial court given the facts and circumstances of this case. See Commonwealth v. English, supra.
For the foregoing reasons, we affirm the Jefferson Circuit Court's judgment upon jury verdict entered March 1, 2018.
ALL CONCUR. BRIEF FOR APPELLANT: Cicely J. Lambert
Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Wm. Robert Long, Jr.
Assistant Attorney General