GERALD SCOTT FARMER v. COMMONWEALTH OF KENTUCKY
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RENDERED: AUGUST 20, 1999; 2:00 p.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000919-MR
GERALD SCOTT FARMER
APPELLANT
APPEAL FROM MADISON CIRCUIT COURT
HONORABLE JULIA ADAMS, JUDGE
ACTION NO. 97-CR-00103
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, EMBERTON, and McANULTY, Judges.
COMBS, JUDGE: The appellant, Gerald Scott Farmer (Farmer),
appeals from the judgment of the Madison Circuit Court convicting
him of reckless homicide and sentencing him to five years’
imprisonment.
Having reviewed the record on appeal, we find no
error and affirm Farmer’s conviction and sentence.
On August 9, 1997, Farmer was involved in an automobile
accident while driving north on U.S. 25 in Madison County,
Kentucky.
His car collided with a southbound vehicle driven by
Kenneth A. Payne.
Payne was killed almost instantly in the
accident, and Farmer sustained a broken hand and other minor
injuries; there were no passengers in either car.
Before he was
taken to the hospital, a breathalyser test was administered to
Farmer by the responding officer, Kentucky State Police Trooper
Merle Harrison.
At the hospital, Trooper Chris Crockett
interviewed Farmer and obtained his consent to collect urine and
blood samples for testing.
Subsequently, on November 20, 1997, Farmer was indicted
by the Madison County Grand Jury on the charges of Reckless
Homicide (KRS 507.050) and Operating a Motor Vehicle While Under
the Influence (KRS 189A.010).
On February 25, 1998, prior to
trial, Farmer filed motions to dismiss the DUI charge against him
on the ground of double jeopardy and to suppress the results of
the blood and urine tests.
On March 2, 1998, prior to the
commencement of the trial, the trial court conducted a hearing on
the motions and denied both.
However, the court held that the
DUI charge should be treated as a lesser-included offense of
reckless homicide and that the jury be instructed that Farmer
could be convicted of only one of the charges — not both.
The
case proceeded to trial, and the jury found Farmer guilty of
reckless homicide.
On April 1, 1998, the court entered final
judgment, sentencing Farmer to five years’ imprisonment.
This
appeal followed.
Farmer argues on the appeal that the court erred in
denying his motion to suppress the results of his blood and urine
tests.
He contends that his consent was not voluntary and that,
therefore, the taking of blood and urine samples from him
constituted an illegal search — a search that was not supported
by probable cause.
We disagree.
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The taking of a blood sample from a criminal suspect
for testing constitutes a search for real or physical evidence
which implicates and activates the Fourth Amendment to the United
States Constitution.
Schmerber v. California, 384 U.S. 757, 86
S.Ct. 1826, 16 L.Ed.2d 908 (1966).
All searches conducted
without a warrant are considered unreasonable unless they come
within one of the exceptions to the rule requiring a valid
warrant.
Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022,
29 L.Ed.2d 565 (1971).
Consent constitutes one of the exceptions
to the warrant requirement.
United States v. Watson, 423 U.S.
411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976).
The Commonwealth has
the burden of proving by a preponderance of the evidence that the
defendant voluntarily consented to the search in question.
v. Commonwealth, Ky., 826 S.W.2d 329 (1992).
Cook
The issue of
whether the consent was indeed voluntary must be determined from
the specific circumstances of a case.
Schneckcloth v.
Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).
This issue is a preliminary question to be decided by the trial
court, and its findings are conclusive if they are supported by
substantial evidence.
Talbott v. Commonwealth, Ky., 968 S.W.2d
76 (1998).
Farmer maintains that his consent was not voluntary
because Trooper Crockett’s actions at the hospital led him to
believe that he was under arrest and that he was required to
submit to the search or lose his license under the implied
consent laws.
In seeking Farmer’s permission to collect blood
and urine samples, Trooper Crockett informed him of his Miranda
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rights and of the implied consent laws.
However, Trooper
Crockett repeatedly told Farmer that he was not under arrest and
that it is the policy of the Kentucky State Police to collect
blood samples in any case involving a fatality.
Farmer first
verbally consented to the search and then signed a hospital
consent form to allow the collection of blood and urine samples.
We cannot conclude that Farmer was threatened or
coerced either explicitly or implicitly in consenting to the
collection of the samples.
“The question of voluntariness is to
be determined by an objective evaluation of police conduct and
not by the defendant’s subjective perception of reality.”
Cook
v. Commonwealth, 826 S.W.2d at 331, citing Colorado v. Connelly,
479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).
Farmer was
specifically told that he was not under arrest; and there have
been no allegations that Trooper Crockett was unprofessional or
abusive in his conduct.
After having been informed of his
Miranda rights and of the implied consent laws, Farmer consented
to the taking of blood and urine samples.
We hold that the trial
court did not err in denying Farmer’s motion to suppress evidence
as the collection of the samples constituted a consensual
search.
Farmer next contends on appeal that the court erred in
denying his motions to dismiss the DUI charge and to enter a
directed verdict on the DUI charge on the ground of double
jeopardy.
We find no error.
Pursuant to the double jeopardy clause of the Fifth
Amendment to the United States Constitution, no person shall “be
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subject for the same offence [sic] to be twice put in jeopardy of
life or limb[.]”
Section 13 of the Kentucky Constitution
contains a virtually identical provision.
In Commonwealth v.
Burge, Ky., 947 S.W.2d 805 (1997), the Kentucky Supreme Court
announced a return to the “same elements” test set forth in
Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76
L.Ed.2d 306 (1932), which is codified at KRS 505.020, determining
when a single course of conduct may establish more than one
offense.
Under this test, “[d]ouble jeopardy does not occur when
a person is charged with two crimes arising from the same course
of conduct, as long as each statute ‘requires proof of an
additional fact which the other does not.’” Burge, 947 S.W.2d at
811, quoting Blockburger v. United States, 284 U.S. 299 304, 52
S.Ct. 180, 182, 76 L.Ed.2d 306, 309 (1932).
Thus, we must
determine whether Farmer’s conduct violated two distinct statutes
and if so, whether each statute required proof of an element that
the other did not.
Farmer was charged with DUI and reckless homicide.
189A.010(1) provides:
A person shall not operate or be in physical
control of a motor vehicle anywhere in this
state:
(a) While the alcohol concentration in his
blood or breath is 0.10 or more based
on the definition of alcohol
concentration in KRS 189A.005;
(b) While under the influence of alcohol;
(c) While under the influence of any other
substance or combination of
substances which impairs one’s driving
ability;
(d) While under the combined influence of
alcohol and any other substance
which impairs one’s driving ability; or
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KRS
(e)
While the alcohol concentration in his
blood or breath is 0.02 or more based
on the definition of alcohol
concentration in KRS 189A.005 if the
person is under the age of twenty-one
(21).
KRS 507.050(1) provides that “[a] person is guilty of
reckless homicide when, with recklessness he causes the death of
another person.”
Reckless homicide and DUI require proof of
wholly distinct and disparate elements.
DUI does not require
proof of a death of another person; reckless homicide does not
require proof that a person was in physical custody of an
automobile while intoxicated or while consuming alcohol.
Analogously, in Justice v. Commonwealth, Ky., 987 S.W.2d 306
(1998), the Supreme Court, applying the “same elements” test,
held that double jeopardy did not serve as a bar to the dual,
simultaneous prosecution of DUI and first-degree assault
(requiring proof that the defendant caused serious physical
injury either intentionally or wantonly).
We find no error in
the trial court’s denial of Farmer’s motion to dismiss and of his
motion for a directed verdict as to the charge of DUI premised on
his double jeopardy argument.
The last issue raised by Farmer on appeal is whether
the court committed reversible error by reading KRS
189A.010(1)(a)&(b) and KRS 189A.010(2)(a)&(b) to the jury.
During voir dire, defense counsel questioned the jurors as to
whether they knew the “legal limit” for DUI in Kentucky.
One
juror responded that he believed it was .08.
Defense counsel
then asked whether the other jurors agreed.
Another juror then
stated that the “legal limit” was .10 and made a reference to
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proposed legislation to lower the limit to .08.
Defense counsel
acknowledged that the juror was correct and pursued this line of
questioning.
The Commonwealth objected.
The trial court read
the two aforementioned statutes and their subsections to the
jury.
Neither the Commonwealth nor defense counsel objected.
After the court finished reading the statutes to the jury,
defense counsel proceeded to discuss the “legal limit” and the
proposed legislative changes with the jury.
“Error on appeal cannot be considered in the absence of
a proper objection to preserve that error for appellate review.”
Sherley v. Commonwealth, Ky., 889 S.W.2d 794, 796 (1994).
The
trial court must be given the opportunity to rule on the issue.
Hunter v. Commonwealth, Ky., 560 S.W.2d 808 (1977).
This issue
was not preserved by a timely objection; defense counsel first
raised its objection to the trial court’s action in a post-trial
motion without regard for the fact that it was defense counsel
who had embarked upon this line of questioning.
We find no
error.
For the foregoing reasons, we affirm the judgment of
the Madison Circuit Court.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jimmy Dale Williams
Richmond, KY
Albert B. Chandler III
Attorney General of Kentucky
Samuel J. Floyd, Jr.
Assistant Attorney General
Frankfort, KY
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