Quentin Wilson v. Commonwealth of Kentucky ( 2015 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISIO,N IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
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RENDERED: FEBRUARY 19, 2015
NOT TO BE PUBLISHED
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2014-SC-000074-MR
QUENTIN WILSON APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT
V. HONORABLE CHARLES LOUIS CUNNINGHAM, JR., JUDGE
NO. 11-CR-002547-01
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
On the evening of August 14, 2011, Appellant, Quentin L. Wilson, and
William B. Smith III fired a barrage of gunshots into a crowd of people gathered
at Shawnee Park in Louisville. Antonio Lamont Anderson died as a result and
two others were seriously injured. Several vehicles were also damaged by the
shooting. A bullet entered and lodged in the trunk of one nearby vehicle,
narrowly missing Mr. Anderson's four-year-old daughter who was asleep in the
backseat. Anderson's pregnant fiancée was also in the car.
Louisville Metro Police Officer Chad Johnson was present during the
shooting. Officer Johnson testified that after hearing gunshots, he witnessed
Wilson standing with his arm outstretched, firing a handgun into the crowd.
The officer also testified that he saw several other muzzle flashes near Wilson.
Wilson, Smith, and another individual involved in the shooting fled the scene
on foot and Officer Johnson followed. They were eventually apprehended and
arrested. Police officers re-traced the path along which Wilson and his
confederates fled and discovered four handguns, three of which were found
together underneath a broken tree branch. A ballistics expert determined that
several of the projectiles and casings recovered from the crime scene were fired
from the recovered handguns.
Wilson and Smith were indicted and jointly tried. The other individual
involved in the shooting was a juvenile. A Jefferson Circuit Court jury
convicted Wilson of complicity to murder, two counts of criminal attempt to
commit murder, two counts of first-degree wanton endangerment, and one
count of tampering with physical evidence. The jury also convicted Wilson of
being a second-degree persistent felony offender ("PFO"). In addition to the 30
year sentence previously recommended for the murder conviction, the jury
recommended an enhanced sentence of 20 years' imprisonment for each
attempted murder conviction, seven years for each wanton endangerment
count, and five years for the tampering conviction.
The jury recommended that these sentences be served concurrently with
each other with the exception of the 30-year sentence for murder, which was to
be served consecutively with the other sentences. The total recommended
sentence was 50 years' imprisonment. The trial court sentenced Wilson in
accord with the jury's recommendation. Wilson now appeals his judgment and
sentence as a matter of right pursuant to § 110(2)(b) of the Kentucky
Constitution. Two issues are raised and addressed as follows.
Self-defense Instruction
Wilson argues that the trial court committed reversible error by not
instructing the jury on self-protection as an affirmative defense to murder. We
recognize that "[o]ur case law regarding the proper standard of review when
reviewing alleged errors in jury instructions is inconsistent." Goncalves v.
Commonwealth, 404 S.W.3d 180, 193 n.6 (Ky. 2013). However, we find no
error here under either an abuse of discretion or de novo standard.
Wilson did not present a pre-trial immunity defense. KRS 503.085. He
only takes issue with the trial court's denial of his request to instruct the jury
under KRS 503.050. That statute provides in part as follows:
(1) The use of physical force by a defendant upon another person is
justifiable when the defendant believes that such force is necessary
to protect himself against the use or imminent use of unlawful
physical force by the other person.
(2) The use of deadly physical force by a defendant upon another
person is justifiable under subsection (1) only when the defendant
believes that such force is necessary to protect himself against
death, serious physical injury, kidnapping, sexual intercourse
compelled by force or threat, felony involving the use of force, or
under those circumstances permitted pursuant to KRS 503.055.
"A defendant is entitled to have the jury instructed on the merits of any
lawful defense . . . ." Grimes v. McAnulty, 957 S.W.2d 223, 226 (Ky. 1997)
(citations omitted). "However, the entitlement to an affirmative instruction is
dependent upon the introduction of some evidence justifying
a reasonable inference of the existence of a defense." Id. (citations omitted).
In the present case, Wilson contends that reasonable jurors could have
concluded that he acted in self-defense based on the following evidence.
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(
First, Officer Johnson testified that he heard two gunshots followed by a
series of shots. Wilson argues that Officer Johnson did not observe him firing
into the crowd until after this initial series of shots, thus indicating that
another individual fired the first shots. Furthermore, one of the victims,
Norman Bradley Wilson, testified that he heard two or three gunshots and saw
seven men shooting guns. Lastly, a firearms examiner testified that at least six
handguns had been fired at the scene, some of which were never recovered.
According to Wilson, this demonstrates that one or more of the guns had been
removed from the scene by the initial aggressor after Wilson returned fire.
While only the first argument was presented to the trial court, none of these
arguments are convincing.
Wilson did not testify or present a self-defense theory during trial.
Instead, defense counsel argued from the outset that Wilson was not one of the
shooters in the park and that he did not have a gun. Wilson's multiple pre-
trial statements to the police were also introduced as evidence. In one
statement, Wilson admitted to being in the middle of the shooting and
identified three shooters by name but repeatedly informed the interrogating
officer that he did not have a gun. See Fitch v. Commonwealth, 103 S.W.2d 98,
102 (Ky. 1937) ("With rare exception it is the rule that where the defendant
denies committing the homicide at all, he is not entitled to a self-defense
instruction."); Butler v. Commonwealth, 516 S.W.2d 326, 328-29 (Ky. 1974).
Also, Wilson stated that he met up with one of the shooters after the shooting
and advised him to toss his gun. Considering the absence of evidence
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supporting Wilson's proffered instruction, the trial court did not err in
declining to instruct the jury on self-protection.
Sentencing
Wilson alleges several sentencing errors. First, he claims that the jury
was not properly instructed on the law governing the case. Next, Wilson argues
that the trial court erred by failing to instruct the jury that its sentence for
murder could not be altered by the trial judge. Lastly, he maintains that the
sentence imposed was arbitrary and unenforceable. Wilson requests palpable
error review.
Post-incarceration Supervision
Pursuant to the "Truth in Sentencing" statute, the Commonwealth
introduced testimony concerning sentencing ranges, parole eligibility and
sentencing credits. KRS 532.055(2)(a)(4). The Commonwealth's witness did
not inform the jury that KRS 532.400 imposes a one-year term of post-
conviction supervision for persons convicted of a capital offense. However, KRS
532.055(2)(a) does not require that the Commonwealth do so; rather, it
provides evidence that "may be offered by the Commonwealth . . . ." (Emphasis
added). There was no error here. Also, to the extent that Wilson's argument is
interpreted as a failure to instruct the jury on post-conviction supervision,
appellate review is barred due to improper preservation. See RCr 9.54(2);
Martin v. Commonwealth, 409 S.W.3d 340, 346-47 (Ky. 2013).
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Judicial Modification and Arbitrariness of Wilson's Sentence
Wilson further argues that it was error not to "advise" the jury that its
sentence for murder could not be altered by the judge. He specifically contends
that trial judges have no statutory authority to modify sentences in non-
aggravated capital cases, therefore, resulting in an arbitrary sentencing
scheme. Kentucky Const. § 2; U.S. Const. Amendment XIV. These issues are
also unpreserved.
Wilson fails to assert the appropriate manner in which the court should
have "advised" the jury. If we interpret his argument as a failure to instruct the
jury, our review of this issue is barred due to improper preservation. See RCr
9.54(2); Martin, 409 S.W.3d at 346-47. Interpreting Wilson's argument as an
unpreserved constitutional challenge to Kentucky's statutory sentencing
scheme also forecloses our review. Benet v. Commonwealth, 253 S.W.3d 528,
532 (Ky. 2008); CR 24.03.
Conclusion
For the foregoing reasons, the judgment of the Jefferson Circuit Court is
hereby affirmed.
Minton, C.J.; Abramson, Cunningham, Keller, Noble, and Venters, JJ.,
sitting. All concur.
COUNSEL FOR APPELLANT:
Daniel T. Goyette
James David Niehaus
Office of the Louisville Metro Public Defender
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General of Kentucky
Dorislee J. Gilbert
Special Assistant Attorney General
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