Jamal S. Mounts v. Commonwealth of Kentucky ( 2021 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
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PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
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RENDERED: JUNE 17, 2021
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2019-SC-0682-MR
JAMAL S. MOUNTS APPELLANT
ON APPEAL FROM CHRISTIAN CIRCUIT COURT
V. HONORABLE ANDREW SELF, JUDGE
NO. 14-CR-00137
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Jamal S. Mounts was convicted following a jury trial in Christian Circuit
Court on charges of murder, attempted murder, and burglary in the first
degree. On motion of the Commonwealth, charges of assault in the fourth
degree and resisting arrest were dismissed after the verdict was rendered but
prior to the sentencing phase. Mounts received a sentence of life imprisonment
for the murder and twenty years on each of the other two counts, with the
sentences to be served concurrently. He now appeals as a matter of right1
raising two allegations of error. We affirm.
On March 1, 2014, Mounts viciously attacked his mother, Roxie Mounts,
at her apartment. Roxie suffered blunt force trauma to the head which
1 Ky. Const. §110(2)(b).
collapsed her face, orbital socket, jaw, and nose. Mounts inserted wood into
her mouth, lacerating her throat. Roxie sustained injuries to her anus and
colon after Mounts shoved wood into her rectum. She had bruising on her
back and left arm, as well as abrasions on her chest and right arm. Roxie
ultimately suffocated to death because her facial injuries constricted her
airway.
Prior to her death, Roxie was able to contact 911 and three officers from
the Hopkinsville Police Department responded to the scene. Upon their arrival,
officers found Roxie lying in the breezeway and observed one apartment door
ajar. One officer tended to Roxie while another entered the open door to clear
the apartment. At about the same time, screams were heard from a
neighboring apartment and blood was observed on that doorway. Upon
making entry, the third officer saw Mounts, naked and covered in blood, on top
of Marvelyn Spray with his hand shoved into her mouth. The officer wrestled
Mounts off of Spray. After two Taser attempts and multiple hand strikes failed
to subdue Mounts, the officer struck him several times with his baton, finally
bringing the horrific attacks to an end. Although Mounts did not converse with
officers, they believed his behavior was consistent with someone who was “on
drugs.”
Mounts was transported to the hospital. During the drive, Mounts
talked about his sister who had died in a car wreck. He also said his mother
was dead and admitted he had killed her. Mounts was subsequently indicted
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by a Christian County grand jury for murder, attempted murder, burglary,
assault, and resisting arrest.
Prior to trial, Mounts was ordered to undergo a psychiatric evaluation at
the Kentucky Correctional Psychiatric Center (KCPC) to assess any mental
illnesses and to determine competency and criminal responsibility.2 During
the evaluation with Dr. Daniel Hackman, Mounts discussed a 2012 head injury
and denied visual or auditory hallucinations although he had previously told
others he heard the word “kill” around the time he killed his mother and told
Dr. Hackman he heard lions roaring. Mounts admitted lying to jail staff about
being suicidal to get out of the “hole.” He also stated he exaggerated symptoms
in an effort to be found incompetent to stand trial.
Dr. Hackman believed any psychosis Mounts suffered near the time of
the murder was caused by illicit drug use based on admissions of Mounts
being a chronic marijuana user and his using “spice” and Ecstasy in the days
leading up to the offenses. At a subsequent competency hearing, Dr. Hackman
testified to his findings and stated he did not believe Mounts qualified for a
verdict of Not Guilty by Reason of Insanity nor did he believe Mounts suffered
from mental illness at the time of the offenses or the subsequent evaluation.
Mounts was determined to be competent to stand trial.
2 Mounts had previously been admitted to KCPC shortly after the murder. After
determining he was malingering, Mounts was returned to jail. For reasons unclear
from the record, nearly four and a half years passed before Mounts was ordered to
return to KCPC for a second evaluation.
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Following a jury trial, Mounts was found guilty on all counts of the
indictment. As previously stated, the Commonwealth dismissed the assault
and resisting arrest charges prior to the sentencing phase. In accordance with
the jury’s recommendation, Mounts was sentenced to an aggregate term of life
imprisonment. This appeal followed.
Mounts raises two allegations of error in seeking reversal. First, he
asserts he was denied due process because the Commonwealth misstated the
burden of proof relative to an insanity defense during its closing summation.
Second, Mounts contends the trial court erred in failing to instruct the jury on
voluntary and involuntary intoxication. We disagree with his allegations and
affirm.
During closing arguments, the Commonwealth noted it had the burden
of proving Mounts intentionally or wantonly caused Roxie’s death. In further
discussing the instructions, the Commonwealth noted subsection C of the
murder instruction required the jury to find Mounts was not insane at the time
of the killing, insanity was defined elsewhere in the instructions, and “that
burden is not on me.” Defense counsel objected, arguing the Commonwealth
had misstated the law. At an ensuing bench conference, defense counsel
claimed the initial burden was on the defense to show by a preponderance of
the evidence that Mounts was insane, and after doing so, the burden shifted to
the Commonwealth to prove beyond a reasonable doubt Mounts was not
insane. The trial court opined the instructions were correct as written and
both parties agreed. The trial court went on to conclude the Commonwealth’s
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statement was not inaccurate, but it was incomplete. An admonishment was
offered but the Commonwealth requested it be permitted to clarify the burden
of proof and defense counsel agreed. Back before the jury, the Commonwealth
explained when a defendant alleges insanity as a defense, the initial burden
rests on the accused and the Commonwealth must respond to the proof offered
regarding insanity. No further objections were raised.
Later in its summation, the Commonwealth stated the jury had to find
Mounts suffered from a mental disease or defect to conclude his actions should
be excused on the basis of insanity. Based on Dr. Hackman’s testimony no
such mental disease or defect existed, the Commonwealth argued for the jury
to find Mounts was insane, it would have to conclude beyond a reasonable
doubt Dr. Hackman was “just flat wrong, 100 percent.” Defense counsel
objected, arguing the burden of proof for insanity was preponderance of the
evidence rather than beyond a reasonable doubt as the Commonwealth had
asserted. An admonition was requested but defense counsel subsequently
agreed to permit the Commonwealth to correct the misstatement. The
Commonwealth then informed the jury, “I stand corrected. You must believe
by a preponderance of the evidence that [Dr. Hackman] is wrong.” Mounts
raised no more objections and did not request an admonition.
Mounts now asserts the Commonwealth twice misstated the law in its
closing summation resulting in a fundamentally unfair trial. More specifically,
Mounts argues once he established his insanity by a preponderance of the
evidence, the burden shifted to the Commonwealth to disprove insanity beyond
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a reasonable doubt and any statements to the contrary during summation
prejudiced the jury against him. At trial, all parties and the trial court
incorrectly agreed this was the appropriate standard to be applied. That is not
the law of this Commonwealth.
Where one chooses to rely upon insanity as a defense, the burden
rests upon him to prove to the satisfaction of the jury that at the
time the offense was committed, as a result of a mental disease or
defect, he lacked substantial capacity either to appreciate the
criminality of his conduct or to conform his conduct to the
requirements of law.
Edwards v. Commonwealth, 554 S.W.2d 380, 383 (Ky. 1977) (citing KRS
504.020).
The burden of proof as to the question of a defendant’s sanity at
the time of a homicide never shifts from the defendant. Wainscott
v. Commonwealth, 562 S.W.2d 628 (Ky. 1978). See also Edwards,
554 S.W.2d at 383 (“[T]he introduction of proof of insanity by a
defendant does not place a burden on the Commonwealth to prove
him sane; rather, it entitles the defendant to an instruction to the
jury that they may find him not guilty by reason of insanity, and
thus properly makes the issue of insanity a matter for the jury’s
determination.”).
Star v. Commonwealth, 313 S.W.3d 30, 35 (Ky. 2010).
Even more recently, in Biyad v. Commonwealth, 392 S.W.3d 380 (Ky.
2013), this Court reiterated our earlier holdings and again expressly held the
model of burden shifting, as advanced by Mounts, has no applicability relative
to insanity defenses. Rather, the question is whether it would be clearly
unreasonable for the fact-finder to find against a defendant on the issue of
insanity when viewing the evidence adduced at trial as a whole. Id. at 383
(citing Port v. Commonwealth, 906 S.W.2d 327, 330 (Ky. 1995)). Having
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reviewed the record, we cannot say the jury’s rejection of Mounts’ insanity
defense was clearly unreasonable.
The jury was presented testimony about his conduct and demeanor
around the time of the crimes from Mounts’ brother and sister who each
described him as “acting crazy;” the arresting officers who believed Mounts
exhibited signs of someone on drugs; the transporting officer who relayed a
rational conversation he had with Mounts shortly following the crimes; and Dr.
Hackman who opined Mounts suffered from no mental illness or defect when
he committed the crimes nor at subsequent times when he was evaluated prior
to trial. Notably, no testimony was adduced that Mounts was unable to
appreciate the criminality of his conduct or resist the impulse to commit the
illegal acts. Thus, we conclude there was sufficient evidence presented to
support the decision of the jury to reject Mounts’ assertion of insanity.
As we have previously stated, the burden of proving insanity never shifts
from the defendant. Although the parties were confused as to the law, and the
flawed view was put to the jury during summation, we discern no prejudice to
Mounts as the misstatement of the law substantially lessened his burden.
Further, although the jury was not properly instructed on the burden of proof
regarding insanity as a defense to the crimes charged, the error acceded to
Mounts’ benefit as the instructions required the jury to “believe from the
evidence beyond a reasonable doubt” that he was not insane at the time the
crimes were committed, thereby shifting the entirety of the burden to the
Commonwealth. Although the instructions were erroneous, and the
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Commonwealth espoused an incorrect statement of the law, these errors
benefitted Mounts and were harmless at best. Reversal is not required.
Finally, Mounts contends the trial court erred in failing to instruct the
jury on voluntary and involuntary intoxication as he believes the evidence
adduced at trial required the trial court to include them in its instructions.
Mounts’ assertions to the contrary, his allegation of error was not properly
preserved for appellate review. No request for a voluntary or involuntary
intoxication instruction was made during trial and no such instruction was
tendered by defense counsel. The sole mention of intoxication instructions
occurred during a bench conference following a competency hearing held prior
to trial. Defense counsel twice mentioned the potential for needing such
instructions “maybe” and “depending on the proof, obviously.” No formal
request was made for intoxication instructions, no such instructions were
tendered to the trial court, the matter was not brought to the trial court’s
attention during the trial, and no objection was raised prior to the trial court’s
reading of the instructions to the jury.
While unpreserved errors are normally subject to palpable error review
under RCr3 10.26, Mounts has made no such request. Had he done so, such
review is unavailable in cases where the unpreserved error concerns the failure
of a trial court to give a particular instruction. Martin v. Commonwealth, 409
3 Kentucky Rules of Criminal Procedure.
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S.W.3d 340, 345 (Ky. 2013) (holding palpable error review barred by RCr
9.54(2)4 for unpreserved claim trial court erroneously gave or failed to give
specific instruction).
It is, of course, the duty of the trial judge in a criminal case to
instruct the jury “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.” Swan v.
Commonwealth, 384 S.W.3d 77, 99 (Ky. 2012) (quoting Taylor v.
Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999)); see also RCr
9.54(1). A criminal defendant is entitled to “have every issue of
fact raised by the evidence and material to the defense submitted
to the jury on proper instructions.” Thomas v. Commonwealth, 170
S.W.3d 343, 349 (Ky. 2005) (citing Hayes v. Commonwealth, 870
S.W.2d 786, 788 (Ky. 1993)). However, RCr 9.54(2) puts the
burden on the parties to make their instructional preferences
known to the trial judge.
Id. Here, we cannot say Mounts fairly and adequately presented the trial court
his preference for “the giving or failing to give” a specific jury instruction.
Whether by choice or omission, Mounts failed to apprise the trial court of his
desire for the instructions he now claims were required to be given. Thus,
consideration of his allegation of instructional error is barred by operation of
RCr 9.54 and further review, palpable or otherwise, is foreclosed.
For the foregoing reasons, the judgment of the Christian Circuit Court is
AFFIRMED.
4 RCr 9.54(2) states:
(2) No party may assign as error the giving or the failure to give an
instruction unless the party’s position has been fairly and
adequately presented to the trial judge by an offered instruction
or by motion, or unless the party makes objection before the court
instructs the jury, stating specifically the matter to which the
party objects and the ground or grounds of the objection.
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All sitting. All concur.
COUNSEL FOR APPELLANT:
Julia Karol Pearson
Assistant Public Advocate
COUNSEL FOR APPELLEE:
Daniel J. Cameron
Attorney General of Kentucky
Kristin Leigh Conder
Assistant Attorney General
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