Commonwealth v. Runion

MILLER, Judge,

dissenting.

I am of the opinion that appellee’s acquittal of first-degree assault of Margaret Ann Day effectively nullified his conviction of reckless homicide regarding Loretta Day. As the majority concedes, the jury verdicts were truly inconsistent and cannot on any ground be harmonized. The majority “theorized” that the reason for such inconsistency was the defective jury instruction as to fourth-degree assault, and because such instruction benefitted the appellee in this situation, the appellee cannot now challenge such inconsistency.

First, it must be pointed out there is not a scintilla of evidence that the inconsistent verdicts were, in fact, the result of the erroneous jury instruction. This revelation by the majority is necessarily speculative. It is not based upon substantive or probative evidence. I am of the opinion that speculation as to the cause of inconsistent jury verdicts should not be tolerated when an individual’s freedom is at stake.

The majority relies upon Barbour v. Commonwealth, Ky., 824 S.W.2d 861, 864 (1992), for the proposition that “while it was error to give such an instruction, it redounded to the benefit rather than to the detriment of the appellant.” However, when considered in context, it is apparent that Barbour is not dispositive upon the issue presented. In context, the Barbour Court stated at 864:

Self-protection is unavailable as a defense to wanton conduct as Shannon v. Commonwealth, [Ky., 767 S.W.2d 548 (1988) ], clearly provides that a self-protection instruction is unavailable as a defense to wanton conduct. While it was error to give such an instruction, it redounded to the benefit rather than to the detriment of appellant. Thus, under the instructions as given, and before a jury could convict appellant of wanton murder, it was necessary to find Barbour not only guilty of wanton murder, i.e. that he engaged in wanton conduct which caused the death of the victim under circumstances manifesting extreme indifference to human life, but additionally that appellant was not privileged to act in self-protection.

Indeed, the case sub judice represents a dispute quite dissimilar than at issue in Barbour, supra. The specific issue presented is not whether an instruction should or should not have been given, but whether acquittal of appellee on one count of the indictment necessarily leads to dismissal of the other remaining count where an essential element of the two counts is identical. From the evidence presented, appellee could not have been reckless in regard to Loretta’s death and not also reckless appertaining Margaret’s injuries. The jury findings were both legally and factually inconsistent.

While there may be a general rule that mere inconsistency of verdicts does not constitute reversible error, I believe an exception should be recognized where there exists at least two offenses charged emanating from the same criminal act or occurrence, each offense having an identical element or elements, and the verdict results in acquittal in one offense and conviction in the other. See, e.g., People v. Pierce, 40 A.D.2d 581, 334 N.Y.S.2d 410 (1972); and annot., 18 A.L.R.3d Criminal Verdict — Inconsistency 259 (1968). The reasoning behind such a rule is sound. During a criminal act, a perpetrator either possesses the questionable mental culpability or does not. In this case, appellee either drove his car recklessly to cause the accident resulting in Loretta’s death and Margaret’s injuries, or he did not. It seems to me the trial court’s judgment should be affirmed. To decide differently would be repugnant to the well-founded principles of common sense and fair play.