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Commonwealth v. Harrell9/23/1999
TO BE PUBLISHED
REVERSING
This Court granted discretionary review (CR 76.20) to consider whether a defendant may, for a single act involving multiple victims, be convicted of multiple crimes requiring different culpable mental states.
On December 23, 1994, Appellee, Jimmy Harrell, was driving in excess of 50 miles per hour in a 25 mile per hour speed zone when he drove through a stop sign at an intersection. His car collided with a car driven by Kelly Brown. Mr. Brown was seriously injured, and the passenger in the car, Nella Brown, was killed. About one and one-half hours after the collision, Harrell's blood alcohol level was determined to be .0763. Evidence was presented as to elimination of alcohol from the body and Harrell's blood alcohol level at the time of the accident was estimated to have been .091.
Harrell was convicted of reckless homicide for the death of Ms. Brown and second degree assault for the injuries caused to Mr. Brown. Harrell was sentenced to five years for each conviction with the sentences ordered to run consecutively for a total of ten years.
On appeal, the Court of Appeals reversed and remanded the case for a new trial. The court recognized existing authority holding that a defendant cannot act recklessly with regard to some victims and wantonly with regard to others when the victims' injuries occurred simultaneously. Pace v. Commonwealth, Ky., 636 S.W.2d 887 (1982). Upon this authority, the Court held that Harrell could not be convicted of both reckless homicide and second degree assault because the offenses require inconsistent culpable mental states, recklessness and wantonness, respectively.
Upon review of the Court of Appeals' Conclusion, two issues must be considered. First, it must be determined whether the mental states required for the verdicts are indeed logically inconsistent and if this inconsistency violates Harrell's due process rights. Second, it must be determined whether this Court should take a new approach to the problem based not on consistency of the mental states but on whether the evidence is sufficient to support both verdicts.
Pursuant to KRS 507.050, a "person is guilty of reckless homicide when, with recklessness he causes the death of another person." The culpable mental state "recklessly" is defined as follows:
A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such a nature and degree that failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.
KRS 501.020(4)(emphasis added). Pursuant to KRS 508.020(1)(c), a "person is guilty of assault in the second degree when . . . e wantonly causes serious physical injury to another person by means of a deadly weapon or dangerous instrument." The culpable mental state "wantonly" is defined as follows:
A person acts wantonly with respect to a result or a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such a nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of involuntary intoxication also acts wantonly with respect thereto.
KRS 501.020(3)(emphasi
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