Christopher Gribbins v. Commonwealth of Kentucky ( 2016 )

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CHRISTOPHER GRIBBINS APPELLANT
ON APPEAL FROM MARION CIRCUIT COURT
V. HONORABLE DAN KELLY, JUDGE
NO. 12-CR-00128
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE HUGHES
AFFIRMING
Christopher Gribbins appeals as a matter of right from a judgment of the
Marion Circuit Court sentencing him to twenty years' imprisonment for
murder. Ky. Const. § 110(2)(b). Gribbins alleges that the jury instructions
inaccurately presented the law of self-protection and that the combination
instruction for intentional and wanton murder resulted in a non-unanimous
verdict. Additionally, Gribbins alleges that the trial court erred in denying his
motion for directed verdict. Finding no error, we affirm the judgment and
sentence of the Marion Circuit Court.
FACTS AND PROCEDURAL HISTORY
During the evening of November 8, 2012, David Litsey was out with
friends visiting the Raywick Bar and Grill. Litsey was accompanied that
evening by his cousin, Marcus Gerton, and his friends Marquis Douglas,
Deshawn Douglas, and Joseph Moore. At the end of the evening, the group
rendezvoused at their vehicle, but Moore was not present. Subsequently,
Marquis Douglas walked back to the bar to look for Moore, and Litsey drove
their vehicle to the entrance to the bar where a crowd had gathered.
Litsey exited his vehicle and entered the crowd to look for Moore.
However, the mood of the crowd was hostile, with multiple fights taking place.
While still in the crowd, Litsey was shot and, despite quick transport to the
hospital by his friends, died shortly thereafter. After the shooting, police
arrived at the bar to secure the crime scene and begin an investigation. Early
in their investigation, Christopher Gribbins, the owner of the Raywick Bar and
Grill, emerged as a suspect. When interviewed after the shooting, Gribbins
initially lied to investigators claiming that he did not know anything about
Litsey's death.
On November 19, 2012, Gribbins was indicted for Litsey's murder under
both the intentional and wanton provisions of Kentucky Revised Statute (KRS)
507.020. During the resulting trial, the jury heard testimony from a number of
eyewitnesses to the shooting. Gerton testified that while Litsey was trying to
stop the fighting in the crowd he was pushed into Gribbins. Gribbins then
attempted to pistol whip Litsey and the gun went off. Another witness, Katie
Edelen, testified that after the two men had a brief exchange Gribbins began
pistol whipping Litsey. During that assault, the gun discharged killing Litsey.
Gribbins's assault on Litsey prior to the shooting was also supported by
the testimony of Sabrina Newton. Newton witnessed Gribbins repeatedly strike
Litsey in the shoulder with the pistol, prior to the gun's discharge. Another
witness, Jonathan Colvin, recalled that Litsey and Gribbins had initially faced
off from each other, with both men exhibiting a confrontational stance. Colvin
recalled that Gribbins was whipping Litsey with the handgun when the gun
discharged
The jury also heard from William Cochran, who testified that he heard
Gribbins say "they're surrounding me." In response, Gribbins pointed his
handgun in Litsey's direction and it discharged. Similarly, Nicholas Keeling
testified that he overheard Gribbins admit to intentionally shooting Litsey.
Marquis Douglas also testified as to the intentional nature of the shooting,
recalling that he watched a man walk towards Litsey, brandish a gun, and
shoot him.
In his defense, Gribbins testified as to his version of that evening's
events. Gribbins alleged that after being confronted outside the bar in an
aggressive manner by Litsey he drew his handgun to protect himself.
Additionally, Gribbins admitted that while the handgun was in his right hand,
he had placed his right hand on Litsey's chest. While the handgun was aimed
at Litsey it discharged, killing him.
After weighing all the testimony and physical evidence, the jury found
Gribbins guilty of wanton murder. The jury recommended a penalty of twenty
years' imprisonment which was adopted by the trial court in its final judgment.
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ANALYSIS
I. The Trial Court Properly Instructed the Jury
Gribbins argues that the trial court erred by failing to accurately instruct
the jury on self-protection. In particular, he alleges that the trial court's
instructions permitted the jury to return a murder conviction, prior to
considering whether to convict him of a lesser included offense due to imperfect
self-defense. However, the trial court's instructions were proper as they were
in accord with prior decisions of this Court.
It is well established that the trial court is required 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."
Taylor v. Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999) (citing Kentucky
Rule of Criminal Procedure (RCr) 9.54(1); Kelly v. Commonwealth, 267 S.W.2d
536, 539 (Ky. 1954)). Additionally, the trial court is required to "instruct the
jury on all lesser-included offenses which are supported by the evidence."
Yarnell v. Commonwealth, 833 S.W.2d 834, 837 (Ky. 1992) (citing Cannon v.
Commonthealth, 777 S.W.2d 591 (1989)); McClellan v. Commonwealth, 715
S.W.2d 464 (Ky. 1986). While we evaluate the trial court's decision to instruct
on a specific claim for an abuse of discretion, the substantive content of the
jury instructions will be reviewed de novo. Sargent v. Schaffer, 467 S.W.3d
198, 204 (Ky. 2015).
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Gribbins begins by arguing that the trial court's instructions failed to
accurately address the elements of self-protection as required under KRS
503.120 and our prior decisions in Elliott v. Commonwealth, 976 S.W.2d 416
(Ky. 1998) and Commonwealth v. Hager, 41 S.W.3d 828 (Ky. 2001).
In Elliott, this Court departed from a line of authority that had precluded
the assertion of a self-protection defense to the charges of wanton murder,
second-degree manslaughter, and reckless homicide. 976 S.W.2d at 422. The
Elliott Court determined that when there is evidence to support self-protection
as a defense to an offense whose culpable mental state is wanton or reckless,
the trial court is required to instruct the jury on self-protection. Id. However,
Elliott stressed that the subjective belief of a defendant in his assertion of self-
protection is not absolute. Id. at 419. Rather, Elliott recognized that the
application of imperfect self-defense was circumscribed and qualified by KRS
503.120. Id.
Under KRS 503.120, a defendant cannot shield himself from prosecution
if he was unreasonable in his belief or if an innocent third party was harmed.
Id. at 419-420. However, if a defendant was wanton or reckless in his belief
that force was necessary for self-defense, he would be entitled to an instruction
on a lesser-included offense under a theory of imperfect self-defense. Id. at
420. Accordingly, lip' the charged offense is intentional murder or first-degree
manslaughter, a wantonly held belief in the need for self-protection reduces the
offense to second-degree manslaughter and a recklessly held belief reduces the
offense to reckless homicide." Id. n.3.
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 This Court further clarified the law concerning imperfect self-protection
in Hager. In Hager, Justice Cooper, writing for the Court, addressed how the
application of KRS 503.120 affected the defense of self-protection when
asserted to an offense with a wanton or reckless mental state. 41 S.W.3d at
842. Additionally, Hager provided specimen recommended instructions for
imperfect self-protection under the various degrees of homicide. Id. at 844-
847.
In the case at bar, the trial court's instructions are nearly identical to the
exemplars contained in William S. Cooper and Donald P. Cetrulo's, Kentucky
Instructions to Juries, Criminal § 11.07 (5th ed. 2007) [hereinafter Cooper's
Instructions]. 1 While Cooper's Instructions are not binding on this Court, we
have previously noted their persuasive value. Gonclaves v. Commonwealth,
404 S.W.3d 180, 193 n.5 (Ky. 2013), as corrected (Mar. 14, 2013). Gribbins
acknowledges the persuasive value of Cooper's Instructions, but he mistakenly
concludes that the imperfect self-protection instruction contained in the fifth
edition of Cooper's Instructions does not substantially comport with our
decision in Hager. In fact, the trial court's instructions, and the exemplars
from Cooper's Instructions on which they were modeled, have only two minor
There are minor differences between the trial court's instructions and the
exemplars from Cooper's Instructions. In particular, the trial court properly omitted
portions of Cooper's Instructions, where the facts of the case did not support giving a
portion of an instruction (e.g., no language was included in trial court's instructions
concerning extreme emotional disturbance). Additionally, the trial court's instructions
include the instructions for intentional and wanton murder under a single instruction
titled "intentional murder." This differs from Cooper's Instructions, which properly
titles the instruction "murder." While the trial court's instruction should have been
titled "murder" (as the instruction addressed both intentional and wanton murder) the
title of instruction did not cause reversible error, nor is it raised as such by Gribbins.
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organizational and stylistic differences from the example promulgated by
Hager.
The first organizational difference between the trial court's instructions
and the example from Hager concerns the placement of the self-protection
instruction. The trial court's instructions address self-protection before moving
on to the various degrees of homicide; whereas the instructions outlined in
Hager do not address the law regarding self-protection until after all of the
substantive offenses are outlined. 41 S.W.3d at 847. The trial court's
placement of the self-protection instruction earlier in the trial court's
instructions was appropriate and inured to Gribbins's benefit because it
introduced the jury to the legal concept of self-protection before addressing the
various degrees of homicide.
As Hager explained, where sufficient evidence has been presented by a
defendant to justify an instruction on self-protection, the Commonwealth is
required to disprove that defense beyond a reasonable doubt, and its absence
becomes an element of the offense. Id. at 833, n.1 (citations omitted). Because
the law of self-protection was presented early on in the instructions, the jury
was aware of the self-protection defense before they were informed of the
elements of each of the substantive homicide offenses. Thus, as the jury
encountered the murder, manslaughter, and reckless homicide instructions
(Instructions 4-7), the last element of each, i.e., "he was not privileged to act in
self-protection," already had meaning because self-protection as recognized in
Kentucky was explained in Instruction No. 3 immediately after the initial
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instructions regarding the presumption of innocence and definitions. The
placement of the self-protection instruction earlier in the trial court's
instructions did not run afoul of our decision in Hager and, in fact, provided
the jury with a more logical approach to this often-complicated area of the law.
The second organizational difference concerns how the trial court's
instructions and the example from Hager differ in presenting the law of
imperfect self-protection. The example from Hager includes all information
concerning self-protection and imperfect self-protection together in one
freestanding instruction. That instruction explains how a defendant's wanton
or reckless exercise of self-protection would affect each previously discussed
substantive offense. In contrast, the trial court's instructions, mirroring those
found in Cooper's Instructions, address the impact of imperfect self-protection
within each section of the instructions where it applies, i.e., second-degree
manslaughter and reckless homicide.
As noted, in each of the trial court's instructions for the various degrees
of homicide, the jury was required to find that Gribbins was not privileged to
act in self-protection. Additionally, in the instructions for second-degree
manslaughter and reckless homicide the jury was provided with the law of
imperfect self-protection because if the jury believed Gribbins had a wanton or
reckless belief in the need for self-protection or the degree of force needed those
two offenses were the ones pertinent to their verdict. By including this
imperfect self-protection language within the relevant substantive offenses, the
trial court made evident to the jury what the proper result should be, if the jury
were to conclude that Gribbins's exercise of self-protection was reckless or
wanton.
Contrary to Gribbins's assertions, the trial court's instructions and the
exemplars from Cooper's Instructions on which they were modeled are in accord
with Hager. The trial court's instructions permitted the jury to fully consider
theories of self-protection and imperfect self-protection in determining whether
he was guilty and the appropriate degree of homicide. Gribbins's argument
that the jury could have found him guilty of murder prior to considering
imperfect self-protection simply has no merit. Jury instructions are not
considered in a vacuum, rather "instructions must be considered as a whole,
taking into account the evidence and closing argument of counsel." Epperson
v. Commonwealth, 197 S.W.3d 46, 60 (Ky. 2006). Through the trial court's jury
instructions, which were read to the jury in their entirety, and the arguments
of counsel during closing argument, the jury was fully informed of the law of
the case and the different verdicts that they could return before they even left
the courtroom to deliberate. There was no error.
II. The Combination Murder Instruction Did Not Violate Gribbins's Right
to a Unanimous Verdict
Gribbins next argues that the trial court erred by giving the jury a
combination instruction which permitted Gribbins to be convicted of either
intentional or wanton murder. While most appellants attack the absence of
proof supporting one of the two theories, Gribbins alleges that there was
insufficient evidence to support the jury being instructed on either intentional
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or wanton murder. 2 This is essentially a directed verdict argument but
because he raises a unanimous verdict claim we will address the relevant law.
Gribbins was entitled to a unanimous jury verdict under Section 7 of the
Kentucky Constitution. Hayes v. Commonwealth, 625 S.W.2d 583, 584 (Ky.
1981); Wells v. Commonwealth, 561 S.W.2d 85, 87 (Ky. 1978). The right to a
unanimous verdict is not violated by a combination instruction so long as there
is sufficient evidence to convict under both theories of culpability and the
jurors are satisfied beyond a reasonable doubt that the defendant is guilty
under one of the theories. Travis v. Commonwealth, 327 S.W.3d 456, 459-60
(Ky. 2010).
The combination instruction was proper as there was sufficient evidence
presented during the trial to warrant an instruction for both intentional and
wanton murder. The intentional murder instruction was supported by the
testimony of three witnesses. The first witness, Marquis Douglas, testified that
he witnessed a man, later identified as Gribbins, walk towards Litsey, brandish
a gun, and shoot him. The second witness, Gerton, also testified about the
intentional nature of the shooting. Gerton recalled that Gribbins initially tried
to strike Litsey with the gun, but failed to make contact. Gribbins then pointed
the gun at Litsey and it went off. The third witness, Keeling, testified that he
2 Gribbins also alleges that the trial court failed to make the findings required
by Benjamin v. Commonwealth, 266 S.W.3d 775 (Ky. 2008). In Benjamin, the Court
expressed that a trial court should make a preliminary determination as whether there
is sufficient evidence to support a combination instruction. Id. at 785. In the case at
bar, the trial court complied with Benjamin, by evaluating the evidence and correctly
determining that a combination instruction was proper.
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did not see the shooting, but heard Gribbins admit to shooting Litsey in
response to Litsey's warning to Gribbins to not get involved in the melee.
Based on the testimony of these witnesses, an instruction for intentional
murder was warranted.
Similarly, there was sufficient evidence presented at trial to justify the
wanton murder instruction. As Gribbins readily acknowledges, multiple
witnesses testified to Gribbins's pistol whipping of Litsey. In using a loaded
handgun, as a club to beat Listey, Gribbins consciously disregarded a
substantial and unjustifiable risk that the handgun might accidentally be
discharged and his conduct plainly created a grave risk of death to Litsey
under circumstances manifesting an extreme indifference to human life. Based
on the evidence, a rational juror could have concluded that Gribbins
intentionally killed Litsey or assaulted him with disregard of the grave risk
posed to his life. Therefore, the trial court's use of a combination murder
instruction was proper, and it did not violate Gribbins's right to a unanimous
verdict. 3
3 Gribbins also alleges that the jury was confused by the combination
instruction which violated his right to a unanimous verdict. During deliberations the
jury asked whether wanton murder was addressed under the intentional murder
instruction or whether it was covered under its own instruction. The trial court, after
speaking with counsel, instructed the jury to refer to the instructions that they had
been given. The jury returned to its deliberations and after reviewing the court's
instructions specifically concluded that Gribbins was guilty of wanton murder, writing
that finding on the verdict form. There was no error.
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III. The Trial Court Properly Denied Isaac's Motion for a Directed Verdict
of Acquittal.
In his final argument, Gribbins alleges that the trial court erred in
denying his motion for directed verdict. Specifically, Gribbins argues that there
was insufficient evidence to support a guilty verdict for intentional or wanton
murder.
The Due Process Clause of the Fourteenth Amendment to the United
States Constitution requires that a conviction be supported by proof of guilt
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 309, 99 S. Ct.
2781 (1979). "The question on appeal is whether, after viewing the evidence in
the light most favorable to the Commonwealth, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt."
Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky. 2009) (citing
Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991)). Questions pertaining
to "the credibility of witnesses and the weight to be given to sworn testimony
are for the jury to decide." Young v. Commonwealth, 50 S.W.3d 148, 165 (Ky.
2001) (citing Commonwealth v. Smith, 5 S.W.3d 126, 129 (Ky. 1999)).
As noted, Gribbins's claims concerning the impropriety of the
combination jury instruction mirror his argument that his motion for directed
verdict was improperly denied. Gribbins alleges that Litsey's death was the
result of a "physical confrontation," and that he lacked the requisite mental
state to be convicted of either intentional or wanton murder. This is erroneous
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as there was more than sufficient evidence presented to support the denial of
the motion for directed verdict.
First, as to the wanton murder instruction, there was sufficient evidence
for the jury to believe that Gribbins consciously disregarded a substantial and
unjustifiable risk which resulted in Litsey's death. Multiple witnesses testified
to seeing Gribbins pistol whip Litsey. Gribbins's use of a loaded weapon to
batter Litsey was done in disregard of the grave risk that the gun might
accidentally discharge during his assault. The trial court properly denied the
motion for directed verdict as to the offense of wanton murder.
Similarly, there was sufficient evidence for the jury to believe that
Gribbins intentionally caused Litsey's death. There were two eyewitnesses to
the murder, who testified as to the intentional nature of the shooting. Marquis
Douglas, recalled that he witnessed an unknown man walk towards Litsey,
brandish a handgun, and shoot him. Likewise, Gerton testified that after
Gribbins tried to pistol whip Litsey with the handgun, Gribbins pointed the gun
at Litsey and it went off. These accounts were supported by the testimony of
Keeling, who overheard Gribbins's admission that he had intentionally shot
Litsey. Thus, the trial court also properly denied the motion for directed
verdict as to the offense of intentional murder.
CONCLUSION
For the foregoing reasons, we affirm the conviction and sentence of the
Marion Circuit Court.
All sitting. All concur.
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COUNSEL FOR APPELLANT:
James I. Lowry
George Scott Hayworth
COUNSEL FOR APPELLEE:
Andy Beshear, Attorney General of Kentucky
Jason Bradley Moore
Assistant Attorney General
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