Supreme Court of Kentucky
Muse v. Commonwealth
551 S.W.2d 564 (Ky. 1977)
Decided Jul 1, 1977
April 1, 1977. Rehearing Denied July 1, 1977. the door of the laundry room pointing the gun at
Elsie's head. Linda screamed and knocked the gun
Appeal from the Fleming Circuit Court, John H.
away just as it was fired. Muse immediately fled
565 Clarke, Jr., Special Judge. *565
to the yard. In the ensuing hours he proceeded to
Jack Emory Farley, Public Defender, Timothy T. shoot through the window; shoot a hole in the gas
Riddell, Asst. Public Defender, Frankfort, for tank of the car; slash the tires on the car and truck;
appellant. and to break out numerous windows in the house.
566 During *566 all of this time Linda and Elsie, after
Robert F. Stephens, Atty. Gen., Mark F.
turning off the lights, hid in the bathroom with the
Armstrong, Asst. Atty. Gen., Frankfort, for
door closed. Muse had cut the telephone line so
appellee.
they could not call the police.
PER CURIAM. Shortly before midnight, Muse knocked the glass
out of the door and came into the living room.
Kenneth Wayne Muse appeals from a judgment
Austin arrived home from work at about 12:10
entered on a jury verdict finding him guilty of
a.m. Elsie and Linda ran down the hall toward the
willful murder and fixing his punishment at life
living room to warn him of the presence of Muse.
imprisonment. Muse claims that the court
Muse turned the living room light on, and just as
committed reversible error in that it failed to
Austin entered the house he shot him once in the
instruct the jury on assault in the first degree.
stomach. Although disarmed by Elsie and Linda,
Secondly, he asserts that the court erred to his
he continued to threaten the family with a knife
substantial prejudice when it failed to conduct a
until around 3 a.m. Austin was then removed to
hearing to determine his capacity to stand trial.
the hospital and from there to a Lexington hospital
Muse, age 24, had been keeping steady company for surgery and treatment of the gunshot wound.
with Austin Saunders' daughter, Linda, age 16, for He remained in the hospital until Thursday, May
a period of some sixteen months. After Linda 8, when he was taken home. On Sunday, May 11,
obtained a driver's license, she lost further interest he experienced some chest pains and was taken to
in Muse and terminated their affair. the hospital in Flemingsburg where he died on
Wednesday, May 14, of a pulmonary embolism.
In the early evening of April 28, 1975, Muse went
to the Saunders' home "to get even" with Linda for The Kentucky Penal Code, KRS 508.010,
breaking up the love affair and to seek redress for provides in part as follows:
some rather harsh words said about him by her
" Assault in the first degree —
mother, Elsie. He arrived at the home about 9:25
p.m., carrying a single shot .22 rifle. The first (1) A person is guilty of assault in the first
inkling Linda and Elsie had of his presence was degree when:
when Linda looked up and saw him standing in
1
Muse v. Commonwealth 551 S.W.2d 564 (Ky. 1977)
(a) He intentionally causes serious (d) It differs from the offense charged only
physical injury to another person by means in the respect that a less serious injury or
of a deadly weapon or a dangerous risk of injury to the same person, property
instrument; * * *." or public interest suffices to establish its
commission."
Muse was indicted on a charge of willful murder,
KRS 507.020. Therefore, an instruction on assault This section of the Penal Code appeared in the
in the first degree is proper only if it is a lesser final draft of the Kentucky Penal Code, published
included offense of the crime charged in the by the Kentucky Crime Commission and
indictment. Prior to the adoption of the Penal Kentucky Legislative Research Commission. The
Code, assault in the first degree was categorized accompanying commentary, in discussing
under the general designation of "assault and subsection (d), uses as an example of a lesser
battery." As such, the use of an instruction on this included offense the following:
issue in murder prosecutions has been consistently
"* * * There are other illustrations of this
approved but with diverse reasoning for its
provision that are not quite so obvious.
inclusion or exclusion. The Kentucky Penal Code,
One that is mentioned by the drafters of
KRS 505.020, provides for conviction of a lesser
the Model Penal Code is this: D inflicts an
included offense under the following conditions:
injury upon V. After living for a substantial
" Prosecution for multiple offenses — period of time and still not completely
recovered from the injury inflicted by D, V
(1) When a single course of conduct of a
dies. D is charged with intentional
defendant may establish the commission of
homicide. There arises doubt as to whether
more than one offense, he may be
D's act was the cause of death. Subsection
prosecuted for each such offense. He may
(d) would allow a conviction of intentional
not, however, be convicted of more than
assault following a charge of intentional
one offense when:
homicide. The assault offense, differing
(a) One offense is included in the other, as from the homicide offense only as to the
defined in subsection (2); * * *. degree of injury to person, would be an
'included' offense."
(2) A defendant may be convicted of an
567 offense that is included in any offense with *567
which he formally charged. An offense is
Cf. KRS 500.100; Kennedy and McGreal v.
so included when:
Commonwealth, Ky., 544 S.W.2d 219 (1976).
(a) It is established by proof of the same or
As assault in the first degree is an included offense
less than all the facts required to establish
of the crime of murder, an instruction on this issue
the commission of the offense charged; or
is required when the circumstances of the case
(b) It consists of an attempt to commit the meet the preceding conditions. It is not one to be
offense charged or to commit an offense given indiscriminately in all murder prosecutions
otherwise included therein; or simply because it is an included offense of the
crime charged. When the evidence is such that
(c) It differs from the offense charged only
there can be no doubt that if the accused is guilty
in the respect that a lesser kind of
at all he is guilty of homicide, then there should be
culpability suffices to establish its
no instruction on a lesser included offense. The
commission; or
evidence must leave room for some doubt as to
2
Muse v. Commonwealth 551 S.W.2d 564 (Ky. 1977)
whether the act of the accused was the cause of The pathologist testified categorically that the
death. Yet, there must at the same time be present gunshot wound caused the death. He admitted on
all elements necessary to prove an assault in the cross-examination only the possibility of another
first degree. cause, which in itself does not remove the issue
from the realm of speculation. Also, it is
Muse asserts that he was entitled to the assault
significant that the pathologist testified that the
instruction because there was some question
"greatest incidents of the occurrence of pulmonary
concerning the causal relationship between the
embolism is in the tenth to twentieth day after the
gunshot wound and Saunders' death, or, in other
surgery. It may occur as early as seven days or so
words, it is his view that the evidence left room
late as three weeks, but usually ten to fourteen
for some doubt as to whether his shooting was the
days or more." Here, it occurred the fourteenth
cause of Saunders' death.
day. Finally, the testimony concerning other
Muse relies upon evidence given by the trauma is even more illusory. Here again, the
pathologist, Dr. Lamar Meigs, who performed an pathologist admitted to a possibility of other
autopsy on Saunders subsequent to his death. trauma. However, he testified that "there was no
Meigs testified that the immediate cause of sign of any other injury." The "possibility" aspect
Saunders' death was a pulmonary embolism which of his testimony is illustrative of a speculative
had resulted from Saunders' wounding and the rather than a factual area.
surgery that followed. However, Muse asserts that
Muse was not required to introduce positive
the positive aspect of Meigs' testimony is
evidence that the embolus was a result of trauma
weakened by the following questions and answers:
or some other incident rather than his shooting
"Q. And some fourteen days later he Saunders. The burden was on the Commonwealth
suffered from this embolism, now how is it to prove beyond a reasonable doubt that the death
you can arrive at the conclusion that this of Saunders was the direct result of the gunshot
gunshot wound is the initiating event, wound inflicted by Muse.
could it have been something else?
An instruction on assault in the first degree should
A. It could have been, it's not very likely." not be given in all instances. The propriety of such
an instruction must rest upon a case-by-case
******
examination of the totality of the evidence
"Q. Could there have been some other introduced. If the state of the evidence is such that
traumatic event that could have caused the it could justify a reasonable doubt that Saunders
embolism? died as a result of the gunshot wound, then the
question is one for the jury.
A. There could have been but I'm now aware of it.
This court is of the opinion that the evidence in
Q. You're basing your opinion on the fact this proceeding does not attain this criterion;
that you were informed that he received a therefore, an instruction on assault in the first
gun shot wound some fifteen days before 568 degree was not required. *568
and the fact that there was an embolism?
Muse next claims that the court should have
A. That is correct and there was no sign of stopped the trial and conducted a hearing to
any other injuries." determine whether he had mental capacity to stand
trial. Muse's misconduct in the course of this trial
was nothing other than what is usually expected of
one who suddenly finds himself caught in the toils
3
Muse v. Commonwealth 551 S.W.2d 564 (Ky. 1977)
of the law. From the record, we do not think that "Q. And some fourteen days later he
there existed reasonable grounds to believe that suffered from this embolism, now how is it
Muse was not competent to stand trial. Cf. Via v. you can arrive at the conclusion that this
Commonwealth, Ky., 522 S.W.2d 848 (1975). gunshot wound is the initiating event,
could it have been something else?
The judgment is affirmed.
A. It could have been, it's not very likely."
REED, C. J., and CLAYTON, LUKOWSKY,
STEPHENSON and STERNBERG, JJ., concur. ******
JONES and PALMORE, JJ., dissent. "Q. Could there have been some other
traumatic event that could have caused the
JONES, Justice, dissenting. embolism?
From time immemorial it has been the duty of trial A. There could have been but I'm not aware of it."
courts in criminal prosecutions to instruct on the
If there is any evidence that indicates a doubt, as
"whole law of the case." Of course that duty is
long as that doubt is reasonable, that Saunders
conditioned on the principle that the slightest
died as a result of a gunshot wound, then an
evidence supporting a defense or the commission
instruction on the lesser included offense should
of a lesser included offense required an instruction
have been submitted to the jury.
on the issue. The trial court refused to instruct on
assault in the first degree, a lesser included The evidence in this case reveals that the first item
offense. In my view the majority opinion is wrong. that supports a doubt is that Saunders died 14 days
Therefore I dissent. after he was shot. He was admitted to a hospital
and underwent surgery. Although his recovery was
I deem the rights of Muse to have been impinged
incomplete, he was released from the hospital.
upon by the majority's view. The following
Another fact that creates doubt is the manner in
demonstrates the fallacy in their line of reasoning:
which Saunders died. His death was the result of a
an assault in the first degree is an included offense
blood clot (embolus) which had formed in his leg,
of the crime of murder.1 When the evidence leaves
broke loose and coursed through his circulatory
room for some doubt as to whether the act of the system to his lungs. The embolus cut off the blood
accused was the cause of death, the trial court supply and caused Saunders' death. Another item
should instruct on the lesser degree of assault in that creates doubt is the wavering testimony of the
the first degree. pathologist. His testimony that the event causing
1 KRS 505.020(2)(d). the blood clot could have been something other
than the gunshot wound, and that it could have
Dr. Lamar Meigs, a pathologist, performed an been caused by trauma other than that of the
autopsy on Saunders subsequent to his death. He wounding and surgery which followed, certainly
testified that the immediate cause of Saunders' would leave room for doubt.
death was a pulmonary embolism which resulted
from Saunders' wounding and the surgery that The evidence regarding the death of Saunders as a
followed. The positive effect of Meigs' testimony result of a pulmonary embolism creates
is weakened by the following questions and circumstances sufficient to raise the issue of the
answers: cause of death. Was the pulmonary embolism that
killed Saunders the result of the gunshot wound
569 and ensuing surgery, or was the embolus the *569
result of trauma or another incident not related to
4
Muse v. Commonwealth 551 S.W.2d 564 (Ky. 1977)
the gunshot wound and surgery? I say that these charged. See Harris v. Commonwealth, 218 Ky.
questions, supported by the evidence, create some 798, 292 S.W. 467 (1927); and other cases cited
doubt as to the cause of death.2 herein.
2 See the commentary discussing KRS It is ironic that the trial court instructed on lesser
505.020(2)(d), in which an example of a degrees of homicide and yet failed to instruct on
lesser included offense is set out. Majority assault in the first degree. I am of the opinion that
Opinion pp. 566-567. it was error on the part of the trial court to refuse
an instruction on assault in the first degree. I
The majority's view does violence to the "whole
believe that the judgment should be reversed for
law of the case" rule. It in effect overrules a
the reasons set out herein.
number of cases which stand for the principle that
where the evidence authorizes it is error on the For all of the reasons enumerated above, I register
part of the trial court to fail to instruct on any of this, my dissent.
the lesser degrees of offense charged in the
indictment or in any offense included within that I am authorized to say that PALMORE, J., joins in
this dissent.
