Lofthouse v. Commonwealth , 2000 Ky. LEXIS 23 ( 2000 )

COOPER, Justice.

Jerry Buford died of a drug overdose at his residence in McCracken County, Kentucky, during the early morning hours of April 11, 1995. Specifically, his cardiovascular, pulmonary and central nervous systems failed as a result of his voluntary ingestion of quantities of alcohol, cocaine and heroin. Appellant Joseph K. Loft-house had provided Buford with the cocaine and heroin which contributed to his death. Following a trial by jury, Appellant was convicted of reckless homicide, KRS 507.050, and of two counts of trafficking in a controlled substance in the first degree, KRS 218A.1412. He was sentenced to one year in prison for his conviction of reckless homicide, and to five years in prison for each of his convictions of trafficking in a controlled substance. The sentences were ordered to run consecutively for a total of eleven years. The Court of Appeals affirmed and we granted discretionary review. CR 76 .20. We now affirm in part and reverse in part, vacating the conviction of reckless homicide and affirming the convictions of trafficking in a controlled substance in the first degree.

I. FACTS.

Appellant did not testify at trial, but the jury heard a statement which he gave to the police on April 12,1995. In that statement, Appellant admitted that he furnished the cocaine and heroin to Buford while visiting in Buford’s home on the night in question. He stated that he and Buford had “shot” cocaine together on previous occasions without life-threatening results. Appellant had obtained the cocaine and heroin from his regular drug supplier, who sold him the cocaine, but gave him the heroin as “something new” which Appellant should try. Appellant had, himself, ingested some of the heroin prior to the night of Buford’s death. On the night in question, Appellant and Buford first consumed some beer, then decided to use the cocaine. Each ingested a quantity of the cocaine by intravenous self-injection. Several hours later, they drank some more beer and ingested some more of the cocaine. Still later, they decided to try the heroin, which they also ingested by intravenous self-injection. According to Appellant, Buford told him he had seen heroin before and knew what it was. Shortly after ingesting the heroin, Buford began perspiring heavily and went into his bedroom and lay down in front of an electric fan.

Buford’s girlfriend, Amy Golden, left the residence when she saw that the two men were going to use drugs. When she returned three or four hours later, Buford was sitting on his bed and appeared to be drunk. Golden remained in the residence only a few minutes, then again departed. When she returned shortly after 2:00 a.m., she found Appellant in the kitchen drinking beer and listening to the radio and Buford in the bedroom unconscious and cold to the touch. Golden called to Appellant for help, then telephoned for emergency medical assistance. Appellant and Golden attempted to resuscitate Buford, but when the emergency medical personnel arrived, he was dead. A subsequent autopsy examination revealed the cause of death to be “cocaine, ethanol and morphine toxicity.” (Heroin is a derivative of morphine.)

II. RECKLESS HOMICIDE.

Prior to the adoption of the penal code, proof of causation sufficient to convict of criminal homicide required either a direct act of force by the defendant against the victim, or an indirect act by the defendant, the probable and natural consequence of which was the death of the victim. J. Roberson, Kentucky Criminal Law and Procedure § 278 (2d ed. Anderson 1927); e.g., Graves v. Commonwealth, Ky., 273 S.W.2d 380 (1954); Hubbard v. Commonwealth, 304 Ky. 818, 202 S.W.2d 634 (1947). In Graves, the defendant had unlawfully entered the victim’s house and created a disturbance. He then departed, but returned and began pounding on the front door and rapping on the bedroom window. As a result of the excitement, the victim, who suffered from high blood pressure, died of a cerebral hemorrhage. The defendant’s subsequent conviction of manslaughter was reversed for insufficient evidence of causation. In Hubbard, the defendant was arrested for drunkenness and taken before the county judge by the jailer and a deputy. When the judge ordered the defendant returned to jail, the defendant resisted and put up a struggle. The jailer suffered from a serious heart condition. Although no force was directed against him, the jailer suffered a heart attack during the affray and died. The defendant’s subsequent conviction of manslaughter was set aside on grounds that it was purely speculative as to whether the defendant’s unlawful act was sufficiently proximate to impose criminal responsibility upon him for the jailer’s death.

The common law also recognized the concept of the intervening or superseding cause. An “independent intervening cause” was one which was only coincidentally produced by the defendant and relieved him of criminal responsibility unless it was reasonably foreseeable at the time of his conduct. A “dependent intervening cause” was one which was a consequence of the defendant’s conduct. If the dependent intervening cause consisted of something other than a human act, it did not relieve the defendant of criminal responsibility; but if it consisted of a human act, criminal liability depended upon whether the act was a normal or an abnormal response to the defendant’s conduct. Thus, in Bush v. Commonwealth, 78 Ky. 268 (1 Rodm.)(1880), the defendant was held not criminally liable for homicide where he inflicted a non-fatal wound upon the victim, who subsequently died of scarlet fever as a result of the negligence of the treating physician; but in Sanders v. Commonwealth, 244 Ky. 77, 50 S.W.2d 87 (1932), a conviction of manslaughter was upheld where the defendant threatened his wife with a deadly weapon while they were in a moving vehicle and she jumped from the vehicle to her death. And in Cassell v. Commonwealth, 248 Ky. 579, 59 S.W.2d 544 (1933), it was held that a defendant could be criminally liable for poisoning his wife whether he administered the poison himself or whether he put the poison in her way to take innocently. Id., 59 S.W.2d at 547. See generally R. Lawson, Kentucky Penal Code: The Culpable Mental States and Related Matters, 61 Ky.L.J. 657, 692-93 (1972-73).

The penal code addresses the issue of causation in the context of an unintentional homicide as follows:

When wantonly or recklessly causing a particular result is an element of an offense, the element is not established if the actual result is not within the risk of which the actor is aware or, in the case of recklessness, of which he should be aware....

KRS 501.060(3). This provision was adopted from section 2.03 of the Model Penal Code. “[T]he plain intent of the statute is to have the causation issue framed in all situations in terms of whether or not the result as it occurred was either foreseen or foreseeable by the defendant as a reasonable probability.” R. Lawson and W. Fortune, Kentucky Criminal Law, § 2-4(d)(3), at 74 (LEXIS 1998).

Appellant was convicted of reckless homicide, ie., of causing Buford’s death while acting recklessly. KRS 507.050(1). The penal code defines “recklessly” as follows:

“Recklessly” — A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

KRS 501.020(4).

Appellant posits that, as a matter of law, one who furnishes narcotic drugs to a person who dies as a result of voluntarily ingesting those drugs cannot be liable for criminal homicide, because ingestion of narcotic drugs does not normally result in death. Appellant offered no evidence at trial to support this proposition, but relies primarily on a quote from a concurring opinion in a case decided by an intermediate appellate court in New York that “the proportion of such deaths [from narcotics] to the number of times narcotics are currently being used ... is not nearly great enough to justify an assumption by a person facilitating the injection of a narcotic drug by a user that the latter is thereby running a substantial and unjustifiable risk that death will result from that injection.” People v. Pinckney, 38 A.D.2d 217, 328 N.Y.S.2d 550, 556-57 (N.Y.App.Div.1972) (Shapiro, J., concurring). However, that statement also was unsupported by any evidence (which, presumably, is why it is in a separate concurring opinion rather than in the majority opinion). In Pinckney, the state was appealing the pre-trial dismissal of the indictment, so there had been no trial and no evidence. Apparently, the concurring judge was taking judicial notice of “the proportion of such deaths [from narcotics] to the number of times narcotics are currently being used .” In our jurisdiction, a fact cannot be judicially noticed unless it is “[c]apable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” KRE 201(b)(2). We agree ■with the Tennessee Supreme Court that facts such as these are “more properly a matter of evidence than of judicial notice.” State v. Randolph, 676 S.W.2d 943, 946 (Tenn.1984).

The majority opinion in Pinckney, supra, purported to rely on the fact that the Penal Law of New York contained no provision under which one who furnishes dangerous drugs to another could be held criminally liable for the other’s death from voluntary ingestion of those drugs. We note that New York has not adopted section 2.03 of the Model Penal Code, thus does not have a statute equivalent to KRS 501.060(3). Furthermore, subsequent decisions of New York’s highest court have not uniformly followed the reasoning expressed in Pinckney. E.g., People v. Galle, 77 N.Y.2d 953, 570 N.Y.S.2d 481, 573 N.E.2d 569 (1991); People v. Cruciani, 36 N.Y.2d 304, 367 N.Y.S.2d 758, 327 N.E.2d 803 (1975). Two of the other three cases cited by Appellant only hold that the defendant who furnished the fatal drugs could not be convicted of criminal homicide under the felony murder rule, discussed more fully infra, State v. Dixon, 109 Am. 441, 511 P.2d 623 (1973), State v. Aarsvold, 376 N.W.2d 518 (Minn.Ct.App.1985); and the third, Commonwealth v. Bowden, 456 Pa. 278, 309 A.2d 714 (1973), was decided solely on the basis that the evidence presented in that case was insufficient to support a homicide conviction.

The Commonwealth posits that, as a matter of law, the act of furnishing narcotic drugs to another creates a substantial risk of death to the transferee sufficient to convict of either second-degree manslaughter (awareness of and conscious disregard of the risk) or reckless homicide (failure to perceive the risk). In support of this proposition, the Commonwealth first asserts that KRS 218A.040 and KRS 218A.060 provide that schedule I and schedule II controlled substances, e.g., heroin and cocaine, are inherently dangerous and pose a risk of death; and that knowledge of those facts is thereby statutorily imputed to anyone who traffics in those substances. In fact, neither statute recites that schedule I or schedule II controlled substances are inherently dangerous or pose a substantial risk of death.. KRS 218A.040 provides inter alia that a schedule I substance has a high potential for abuse and either has no accepted medical use or lacks accepted safety for use in treatment under medical supervision. KRS 218A.060 provides inter alia that a schedule II substance has a high potential for abuse and that such abuse may lead to severe psychic or physical dependence. The language of neither statute establishes as a matter of law that the use of such substances poses a substantial risk of death.

The Commonwealth also cites a number of cases from other jurisdictions which hold that one who feloniously transfers a controlled substance to a person who dies as a result of its ingestion is criminally hable for that person’s death. Some of those cases are from jurisdictions which premise criminal liability on the so-called “felony murder rule,” i.e., if death ensues as a consequence of the commission of a dangerous felony, the intent to commit the dangerous felony provides the element of intent necessary to convict of the homicide. E.g., People v. Patterson, 49 Cal.3d 615, 262 Cal.Rptr. 195, 778 P.2d 549 (1989); People v. Taylor, 112 Cal.App.3d 348, 169 Cal.Rptr. 290 (1980); Heacock v. Commonwealth, 228 Va. 397, 323 S.E.2d 90 (1984). Kentucky no longer subscribes to the felony murder rule. Bennett v. Commonwealth, Ky., 978 S.W.2d 322, 327 (1998). Other cases relied on by the Commonwealth are from jurisdictions with statutes reflecting a legislative intent to prosecute as homicides deaths resulting from the provision of controlled substances. E.g., State v. Wassil, 233 Conn. 174, 658 A.2d 548, 555 (1995); Martin v.. State, 377 So.2d 706 (Fla.1979); State v. Ervin, 242 N.J.Super. 584, 577 A.2d 1273 (1990); State v. Thomas, 118 N.J.Super. 377, 288 A.2d 32 (1972).¹ The Commonwealth’s reliance on Commonwealth v. Catalina, 407 Mass. 779, 556 N.E.2d 973 (1990) is also misplaced. The Massachusetts Supreme Court only held in that case that the evidence presented to the grand jury was sufficient to support an indictment for criminal homicide and specifically noted that it was not deciding whether the evidence was sufficient to prove guilt beyond a reasonable doubt. Id. at 979.

Thus, we reject both Appellant’s proposition that furnishing controlled substances to one who subsequently dies from their ingestion can never support a conviction of criminal homicide and the Commonwealth’s proposition that such will always support a conviction. Instead, we hold that guilt of criminal homicide, like any other offense, depends upon proof. Commonwealth v. Catalina, supra. For example, in the Tennessee case of State v. Randolph, supra, there was evidence that another of one defendant’s customers had died the same way two weeks earlier, and that another defendant knew that the heroin sold to the victim was “uncut” and dangerous because it had not been diluted. And in the New York case of People v. Cruciani, supra, there was evidence that the defendant injected the victim with heroin after she was already “bombed out” on depressants and that the defendant was aware of the substantial possibility that the injection would cause the victim’s death.

Appellant’s conviction of reckless homicide in the case sub judice required proof beyond a reasonable doubt that there was a substantial and unjustifiable risk that Buford would die if he ingested the cocaine and heroin furnished to him by Appellant, and that the risk of Buford’s death was of such nature and degree that Appellant’s failure to perceive it constituted a gross deviation from the standard of care that a reasonable person would observe in the situation, KRS 507.050, KRS 501.020(4); i.e., that Buford’s death as a result of ingestion of the cocaine and heroin was either foreseen or foreseeable by Appellant as a reasonable probability, KRS 501.060(3). Thus, the Commonwealth needed to prove not only the toxic qualities of cocaine and heroin, but also that a layperson, such as Appellant, should reasonably have known that there was a substantial risk that the amount of cocaine and heroin ingested by Buford would result in his death. That is especially true where, as here, Appellant did not directly cause the victim’s death, but only furnished the means by which the victim caused his own death. In the Pennsylvania case of Commonwealth v. Bowden, supra, evidence that the defendant injected the victim with the fatal dose of heroin was held insufficient to support a homicide conviction because it was undisputed that the defendant knew the victim’s tolerance level for heroin and injected only an amount which the victim had normally tolerated.

Although the medical examiner in orn-ease testified that the amount of morphine found in Buford’s body “can be fatal” and that the amount of cocaine found in his body “could be fatal,” there was no proof that Appellant or any other layperson should have been aware that there was a substantial risk that Buford would die from ingesting those substances, or that Appellant’s failure to perceive that risk constituted a gross deviation from the standard of care that a reasonable person would observe in the situation. Such information is not “common knowledge.” On the other hand, there was evidence that heroin was “something new” to Appellant; that he, himself, had previously ingested dosages of both the cocaine and the heroin in question without a fatal result; and that he, himself, ingested the same dosages of cocaine and heroin as Buford on the same occasion, yet remained coherent enough to assist in efforts to save Buford’s life. The Commonwealth proved only that the dosages were fatal to Buford. That alone was insufficient to convict Appellant of reckless homicide.

Compare People v. Duffy, 79 N.Y.2d 611, 584 N.Y.S.2d 739, 595 N.E.2d 814 (1992), in which the defendant was convicted of reckless homicide on evidence that he knew the victim was suicidal, that he furnished the victim with a firearm, and that he urged the victim to kill himself, which he did. Presumably, merely furnishing the victim with the instrument of his death, ie., the firearm, would not alone have been sufficient to sustain the conviction. Likewise, Appellant’s act of furnishing Buford with the cocaine and heroin was not alone sufficient to sustain his conviction of reckless homicide.

III. TRAFFICKING IN CONTROLLED SUBSTANCES.

Appellant asserts that his convictions of trafficking in heroin and cocaine were predicated solely upon his own uncorroborated confession, thus, the evidence was insufficient to support those convictions. Criminal Rule 9.60 precludes the conviction of a defendant solely on the basis of his own uncorroborated out-of-court statements. However, the requirement of corroboration relates only to proof that a crime was committed, not to whether the defendant committed it. Commonwealth v. Karnes, Ky., 849 S.W.2d 539 (1993); Slaughter v. Commonwealth, Ky., 744 S.W.2d 407, 410 (1987), cert. denied, 490 U.S. 1113, 109 S.Ct. 3174, 104 L.Ed.2d 1036 (1989). Once the corpus delicti has been established, the fact that the defendant committed the crime can be proven entirely by his own confession. Dolan v. Commonwealth, Ky., 468 S.W.2d 277 (1971). Finally, the corroborative evidence need not be such that, independent of the confession, would prove the corpus delicti beyond a reasonable doubt; and proof of the corpus delicti may be established by considering the confession as well as the corroborating evidence. Blades v. Commonwealth, Ky., 957 S.W.2d 246, 250 (1997).

Here, in addition to Appellant’s confession, there was proof that the cause of Buford’s death was ingestion of cocaine and heroin. Heroin was found in the bathroom of the residence, and the syringes and spoons found at the scene tested positive for both heroin and cocaine. Amy Golden testified that although she knew Buford had taken drugs in the past, he had not done so during the year that she had been living with him (from which the jury could infer that the heroin and cocaine found in the home did not belong to Buford); that she had never seen Buford use syringes like the ones found at the scene; that she saw Appellant produce the needles which were used to inject the drugs; and that a black Newport bag which was found at the scene and which contained two syringes and other drug paraphernalia, did not belong to Buford. This was sufficient circumstantial evidence to corroborate Appellant’s confession that he brought a quantity of cocaine and heroin to Buford’s residence and transferred it to Buford in violation of KRS 218A.1412.

Accordingly, the decision of the Court of Appeals is affirmed in part and reversed in part. That portion of the judgment of the McCracken Circuit Court which convicted Appellant of reckless homicide and sentenced him to one year in prison for that offense is vacated; and that portion of the' judgment which convicted him of two counts of trafficking in a controlled substance in the first degree and sentenced him to an aggregate term of ten years in prison for those offenses is affirmed.

LAMBERT, C.J., and KELLER, J., concur. STUMBO, J., concurs by separate opinion, with JOHNSTONE, J., joining that concurring opinion. WINTERSHEIMER, J., dissents by separate opinion. GRAVES, J., not sitting.

1 . In Thomas, the New Jersey court also held that the unlawful transfer of narcotic drugs in that case was, as here, an essential element necessary for conviction of the homicide offense and vacated the narcotics convictions on double jeopardy grounds. That issue has been neither raised nor argued at trial or at either level of appeal in this case. But see Bennett v. Commonwealth, supra, at 326-28.