Commonwealth v. Harrell9/23/1999
s added). Harrell argues that the mental states are logically inconsistent because reckless behavior involves a failure to perceive a substantial and unjustifiable risk while wanton behavior entails being aware of but consciously disregarding such a risk.
In Pace v. Commonwealth, Ky., 636 S.W.2d 887 (1982), the defendant drove his car into three pedestrians, killing one and injuring the others. He was convicted of second degree manslaughter and second degree assault, which both required a wanton state of mind, and third degree assault, which required either a reckless or a wanton state of mind based upon the instructions given the jury. This Court held that if the third degree assault conviction was based on a reckless state of mind, then the verdicts were inconsistent because the injury to all three victims occurred simultaneously. Id. at 890; see Commonwealth v. Runion, Ky. App., 873 S.W.2d 583, 587 (1993)(describing the Pace holding as "where injury simultaneously occurs to more than one victim; it is logically inconsistent for the jury to convict the defendant of crimes requiring different criminal culpabilities as to those parties"); Skinner v. Commonwealth, Ky., 864 S.W.2d 290, 295 (distinguishing Pace as treating "the question of inconsistencies among multiple verdicts against a single defendant" when victims are harmed simultaneously). In Pace, the judgment was reversed upon other grounds. In doing so, this Court directed that, upon retrial of the case, the jury instructions be given to avoid such inconsistency of culpable mental states.
We now view our decision in Pace to have focused erroneously on the concept of consistency rather than upon the concept of sufficiency of evidence to sustain each conviction. A defendant may fail to perceive that death to a victim may result from his conduct; however, the defendant may be aware but consciously disregard the risk that severe injury to another victim may result. In other words, a defendant may have a reckless state of mind with respect to one result and a wanton state of mind with respect to another result arising simultaneously from the same conduct.
Furthermore, rigid adherence to a prohibition against inconsistent verdicts may interfere with the proper function of a jury, particularly with regard to lenity. See Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356, 359 (1932); United States v. Powell, 469 U.S. 57, 61, 105 S.Ct. 471, 474, 83 L.Ed.2d 461, 466 (1984). Such an approach would unduly restrict the right of the jury to consider the evidence broadly and convict or acquit based upon its view of the evidence pertaining to each charge. Moreover, that approach requires analytical precision that would inevitably lead to confusion and needless appellate reversals.
The better approach would be to examine the sufficiency of the evidence to support each verdict. This approach is consistent with the United State Supreme Court's holding that each count of an indictment should be regarded as a separate indictment, and thus consistency in a verdict is not necessary. Dunn v. United States, 284 U.S. at 393, 52 S.Ct. at 190, 76 L.Ed. at 358 (1932); United States v. Powell, 469 U.S. at 67, 105 S.Ct. at 475, 83 L.Ed.2d at 467 (1984). In this case, there was sufficient evidence to support each of the verdicts. Pace v. Commonwealth, supra, is overruled to the extent it differs from the holding in this case.
For the foregoing reasons, the opinion of the Court of Appeals is reversed, and the judgment of the Simpson Circuit Court is hereby reinstated.
Cooper, Graves, Keller, Johnstone, Stumbo, and Wintersheimer, JJ., concur.
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