Robertson v. Commonwealth

82 S.W.3d 832 (Ky. 2002)



The issue with respect to whether a criminal defendant can be held criminally responsible for a police officer's conduct focuses upon whether the harm that occurred was a reasonably foreseeable consequence of the defendant's conduct at the time he acted. Where an officer's conduct is a direct and specific response to a defendant's conduct, the claim that the officer's conduct is a superseding cause can be supported only through a showing that the conduct was so unusual, abnormal, or extraordinary that it could not have been foreseen. The fault or negligence of the officer is not determinative of the defendant's guilt. However, the reasonableness of the officer's response is relevant in determining whether the response was foreseeable by the defendant. The more reasonable the response, the more likely that the defendant should have foreseen it. It is immaterial that the ultimate victim was the officer, himself, as opposed to an innocent bystander.


Defendant ran from a police officer, who attempted to arrest him for possessing marijuana. The officer radioed for assistance, and other officers responded to a bridge that crossed the Ohio River, as defendant ran across that bridge. One of those officers leapt over a barrier that separated the roadway and a walkway and was killed when he fell into the river. Following a jury trial, defendant was convicted of manslaughter in the second degree, in violation of Ky. Rev. Stat. Ann. § 507.040(1). The appellate court affirmed defendant's conviction. The state supreme court granted discretionary review and affirmed the trial court's judgment.


Was the police officer’s fatal attempt to pursue defendant foreseeable by defendant as a reasonably probable result of his own unlawful act of resisting arrest by fleeing from apprehension?




Defendant's conviction was supported by the fact that he continued to run when he saw the police officer who stopped his vehicle to give chase. It was reasonably foreseeable that officers would chase defendant when he fled. The question of whether defendant knew or should have known that the officer's death was rendered substantially more probable by defendant's conduct was an issue of fact that was properly submitted to the jury.

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