Hall v. Commonwealth

NOBLE, J.,

CONCURRING IN PART AND DISSENTING IN PART:

I concur in the majority’s reversal of Hall’s convictions, but I would go a step farther to hold that he was entitled to a directed verdict of acquittal on the four wanton-endangerment counts and thus cannot be retried for them. I disagree with the majority’s conclusion that the Commonwealth introduced sufficient evidence to support the wanton-endangerment convictions, and therefore dissent in part. Simply stated, the evidence was insufficient to establish that any of the three shots fired by Hall exposed the four Tack-ett children to a substantial risk of harm.

As was the case in Swan v. Commonwealth, 384 S.W.3d 77 (Ky.2012), the offenses alleged to have been committed against the Tackett children do not fit within the typical examples of first-degree wanton endangerment. The evidence here proved only that the children were located somewhere in the Tacketts’ house at the time of the shootings, and in any event, it demonstrated that the children were not in the immediate vicinity of the fired shots. Compare id. at 103, with Combs v. Com-momvealth, 652 S.W.2d 859, 860 (Ky.1983) (first-degree wanton endangerment included firing gun “right beside” a victim, “point blank” at another, and within 15 feet of another); see also Swan, 384 S.W.3d at 102-03 (proof that defendants fired guns “near” other victims in plain view provided ample support for first-degree convictions related to those victims). Nor did Hall fire indiscriminately into the occupied house; instead, he fired three shots with precision directly at his targets.

Again, the proof here demonstrated only that the children were inside the house at the time of the shootings. The Commonwealth argues, and the majority agrees, that since Alan was shot while standing in his doorway (when he was actually standing just beyond his doorway, holding the door open), the children could have been shot by a bullet exiting the body and traveling into the house or by an errant bullet if Hall’s aim had been untrue, and thus they were endangered: But no evidence showed the locations of the children within the house at the time of the shootings, and there was no evidence that any of the three bullets were fired in the direction of any of the children. Nor was there any ballistics evidence put forth to show how or where the bullets could have traveled through the house. It was the Commonwealth’s burden to offer proof of these facts, which were essential to show whether the children had actually been endangered.

The majority places great emphasis on its finding that Hall used “an incredibly powerful firearm,” ante at 829, to kill Alan Tackett to support its assumption (without requiring proof) that the rifle’s rounds were thus capable of traveling through any intermediate material that might have crossed their paths had Hall’s aim not been so deadly. And having so assumed, the majority posits that any person located anywhere inside the house was substantially endangered by merely firing at a target standing in front of the house. This cannot be correct.

The only proof introduced by the Commonwealth that was even marginally probative to establishing the children’s locations at the time of the shootings is the open-line 911 call. But this audio recording, by itself, does not prove that the children were in fact in close proximity to the shootings. With its glaringly obvious problems, this recording at best shows that some of the children were somewhere in the general vicinity of the crime scene at some unknown (but presumptively short) time after the shootings occurred. No gunshots are heard on the recording, and neither Lisa’s nor Alan’s voice can be heard. Assuming the cordless phone found under Alan’s leg was used to place the open-line call (although there was no actual proof introduced that it was), it is still impossible to discern the actual location of the children (or child) that can be heard screaming and crying in the background; at most, the recording proves they were within “earshot” of the telephone’s microphone, however near or far that may have been. And it is impossible to determine the identities of the children (or child) that can be heard on the recording, or whether the crying was by one child or more; thus, the call fails to prove even that all four children were in the general vicinity after the shootings had already taken place. It certainly does not prove that all four children were in close proximity to the shootings when- they occurred. Simply put, the open-line 911 call says next to nothing about where the children were actually located at the time the three shots were fired by Hall.

Nevertheless, the majority finds that this evidence supports a reasonable inference that the children were close by at the time of the shooting. At most, however, the evidence demonstrated that at least one child was near enough to Alan Tack-ett’s body (assuming, again without direct evidence, that it was he who made the call) to be heard crying on the phone a very short time after the shootings. Even assuming that Alan Tackett was the dialer, a jury could only speculate as to how close the children had to have been to the telephone for their cries to be heard, and exactly which of their voices are audible on the recording and therefore within that distance. This simply is not sufficient to reasonably establish the proximity of any individual child, much less all four, to the shootings.

To support its conclusion, the majority relies on Paulley v. Commonwealth, 323 S.W.3d 715 (Ky.2010). In that case, the Court held that the trial court’s erroneous failure to strike a juror required vacating the convictions of both Paulley and his co-defendant Gunn, and remanded for a new trial. Id. at 718. But relevant for this case, the Court further held that Gunn was not entitled to a directed verdict of acquittal on nine counts of wanton endangerment, which had been based on his firing a shotgun through the closed front door of a house occupied by nine people. Id. at 724. Gunn had argued only that a single shot could not support multiple wanton-endangerment counts. This Court disagreed, concluding that a single shot could be found to have endangered multiple people and thus support multiple convictions for wanton endangerment. Id. Though not expressly stated, this is because wanton endangerment, like homicide and assault, is a result crime, that is, one that criminalizes a result, rather than just an act. The forbidden result is substantial danger of death or serious physical injury, and each instance of that forbidden result gives rise to a separate offense.

The reasoning underlying the majority’s application of Paulley’s holding to the present case is this: because Paulley presented similar facts (the firing of a “long gun,” ante at 830, into or at²⁰ an occupied house) and upheld the wanton-endangerment convictions, the convictions in this case must also be upheld. But the mere fact that it involved a scenario not unlike the present case does not mean it controls the outcome of this case. Significantly, it does not appear that the parties in Paulley even raised (and, in any event, the Court did not address) the particular issue raised here: whether the shots fired actually created a substantial danger of harm. Instead, the Court in that case addressed only whether a single shot could endanger multiple people. Paulley ⅛ holding in this respect is correct, but it is limited in scope.

To be sure, the Paulley decision did not discuss what other proof there was in the case. Indeed, as the majority points out, Paulley did not consider the location of the nine occupants of the house in affirming the denial of the directed verdict. More importantly, Paulley did not even address that fact or its importance. Whether the occupants were actually endangered — a question that turns on many facts, including the victims’ locations and the type of act creating the danger — was simply not addressed in Paulley.

Although the majority emphasizes our ruling in Paulley that “Gunn was properly charged with wanton endangerment as to each person who was inside Stone’s home when Gunn fired into it,” id. it is clear that Paulley simply considered a different issue than that presented in this case. The failure to consider this specific issue in that case was not an implicit affirmation of the lower court on that issue.

Moreover, to read Paulley as applying a broad rule that every firing of a gun into (or toward) an occupied house constitutes wanton endangerment, as the majority suggests, would make it an outlier decision, especially when compared to Swan, which specifically addressed location questions. More importantly, and unfortunately, it would shift the burden of proof to the defendant to show that, in fact, the alleged victims were never endangered because they were, for example, well out of the line of fire or were behind brick or stone walls that even a high-powered rifle round could not pierce. But the burden of proof in showing a substantial danger is on the Commonwealth; the defendant is not required to negate an assumed danger of harm.

The analysis here boils down to resolving one question: Did the Commonwealth present sufficient evidence for a reasonable juror to conclude beyond a reasonable doubt that Hall’s wanton behavior created á substantial risk of harm to the Tackett children? The proof shows at best that Hall’s wanton conduct may have created some risk of danger to the children, which is insufficient to find him guilty of the four counts of first-degree wanton endangerment. To sustain a conviction, the statute requires Hall to have created a “substantial danger” of killing or seriously injuring each child. See KRS 508.060(1).

Even drawing all reasonable inferences in favor of the Commonwealth, it is clear that the Commonwealth did not present sufficient evidence for a jury to reasonably find that each Tackett child had been subjected to a substantial danger of being shot. The Commonwealth’s main proof on this point, the crying on the 911 tape, does not show which child or children were in the vicinity to be picked up on the phone microphone after the shooting or where they were located at the time of the shooting itself. And in addition to failing to prove the location of the children within the house or their proximity to the trajectory of the fired shots, the Commonwealth offered no proof of the .30-06 rounds’ ability to ricochet off or pass through certain objects or materials, such as the floors or walls of the Tackett home.

Nevertheless, the majority treats the children’s actual location within the house as wholly irrelevant, necessarily relying instead on the assumption that the rifle rounds had the capacity (if not probability) to reach every corner of the residence. Although “ ‘[i]t is self-evident that bullets may ricochet,’ ... the danger from ricochets is not endless.” Swan, 384 S.W.3d at 103 (quoting Hunt v. Commonwealth, 304 S.W.3d 15, 38 (Ky.2009)). It is simply improper to allow these general characteristics to be applied without limit and without regard for the specific characteristics of the projectile fired and the walls and other objects in the house that it may have had to travel through or ricochet off. As evidenced by the photographs admitted into evidence, there was a brick wall immediately behind the victim. Yet there was no proof that the bullets in question could pass through such a wall, nor was there proof that the children were in the immediate vicinity of the fired shots and not on the other side of that wall (or still other walls, or upstairs).

I cannot endorse the majority’s presumption of substantial danger to all occupants of a building at which a bullet is fired without requiring some proof of the location of each occupant in relation to the projectile and the risk thus created to that occupant, or alternatively expert proof that the projectiles presented a substantial danger to all occupants of the house regardless of their location.

That said, the Commonwealth could have met its evidentiary burden fairly easily. For example, testimony about the children’s location in the house from one of the older children, perhaps combined with testimony from someone like a police officer with knowledge and experience of the capacity of .30-06 bullets to ricochet and pass through solid objects, would likely have sufficed. But to allow the jury to reach its wanton-endangerment verdict based only on so-called common knowledge of ricochets and such — much of which is no doubt informed by popular (and inaccurate, if not outright fantastical) depictions of such events in popular media, rather than real-life experience — invites a verdict based on speculation.

And it is clear that the majority’s position does just that. It allows the jury to engage in outright speculation as to what danger, if any, to the Tackett children Hall created when he aimed and fired his rifle in the direction of the house. Indeed, the majority would allow the jury to “infer” (read, speculate) not only that there was a possibility that one of the rounds fired could have struck each child in the house, but that there was a substantial probability of this happening, as required to sustain the convictions. See KRS 508.060(1).

As this Court said in Swan, “[w]e must draw the line somewhere,” 384 S.W.3d at 103, and the evidence in this case falls short of that line. Without proof showing, for example, that the shots were fired in the immediate vicinity of the children or in their actual direction, no reasonable juror could find beyond a reasonable doubt that any child, much less each child, was subjected to a substantial danger solely by virtue of having been located somewhere inside the residence in front of which their parents were shot.

Consequently, I would reverse Hall’s four wanton-endangerment convictions because he was entitled to directed verdicts of acquittal on those counts, which would not be subject to retrial on remand.

Venters, J., joins.

20 . The majority argues that "the evidence established that Hall was firing ‘into an occupied house.’ " Ante at 830. This is incorrect. It is undisputed that Hall fired in the direction of an occupied house when he shot Alan Tack-ett, who was standing on his front porch outside the doorway into his house. We know that he was standing beyond the doorway when the shots were fired because his body was ultimately found half in and half out of the house, with the threshold at approximately his waist. For him to have fallen back and ended up in this position, he had to have been beyond the doorframe. Thus, it is clear that no shots were fired into the house. And while one of the bullets ultimately ended up inside the house, that was only by virtue of it having become - lodged in the victim's head, after which he fell back into the doorway. Firing toward a house is not the same as firing into it.