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Milburn v. Commonwealth of Kentucky12/21/1989
Opinion OF THE COURT BY JUSTICE LAMBERT
Appellant Charles C. Milburn was convicted in the Jefferson Circuit Court of wanton murder and two counts of first degree assault. Sentenced to a total of twenty years imprisonment, Milburn received twenty years as to wanton murder and ten years on each of the assault charges, to run concurrently. Appellant appeals his conviction to this Court as a matter of right.
The events from which the charges against appellant arose followed an afternoon and evening of excessive drinking. The evidence showed that the episode began on Saturday afternoon when appellant shared a fifth of vodka and several beers with a friend. Meeting up with another friend, one J. J. Jones, appellant and Jones consumed their first of many pints of gin and then departed for a local combination liquor store and pool hall. There appellant drank more gin and an undetermined amount of beer. He also shot several games of pool with one of the soon-to-be victims, Kenneth Finch, to whom he lost.
Finch testified that appellant owed him $2.00 from their bet on the outcome of the pool match. Appellant gave a $20 bill to Jones to get change. However, appellant apparently never paid his debt to Finch, as he left the pool room at the barkeep's request after scuffling with Jones over the whereabouts of the change. Realizing that he was too drunk to drive, appellant decided to sleep it off in his truck which was parked close by on the street.
Appellant was awakened awhile later by someone grabbing him through the open truck window. Appellant testified that he heard several people nearby discussing a plan to take his money. Unsuccessful in his attempts to push away the unidentified individual who appellant testified continued to attack him, appellant eventually picked up a gun, alighted from the truck and began firing. Three individuals were shot, including Kenneth Finch, and a passerby. The third victim, the alleged attacker, died from a bullet wound to the head.
Appellant fled the shooting scene in his truck. Near the Louisville airport, appellant struck a guardrail at a high rate of speed, flew down an embankment, hit a fence and, finally, bounced back onto the road. Police officers investigating the accident questioned appellant and placed him under arrest in connection with the earlier shootings before he was taken to the hospital.
The Commonwealth charged appellant with murder and sought to prove that he intentionally shot the victims. Milburn asserted the defenses of self-protection and extreme emotional disturbance. He testified that he only intended to scare his attackers away by firing at the ground. The jury evidently did not fully accept either theory, as appellant was convicted of wanton murder, rather than intentional murder. The jury also found appellant guilty of wanton first degree assault on the two assault counts.
Appellant presents eight allegations of error. In his first argument, appellant contends the circuit court erred by allowing William McBrayer, an expert witness for the Commonwealth, to testify outside the confines of his report. Firearms examiner McBrayer filed a brief report which was made available to appellant prior to trial. The report listed four items under the heading "Examination Requested." One of the requests was to " etermine if there are lead residues present on Exhibit 7." Exhibit 7 was a hair sample from the head wound of the deceased victim. The section of the report entitled "Results of Examination" contained five concise findings, one of which was
"A light reaction to lead residue noted on Exhibit 7."
McBrayer's testimony concerning t
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