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RENDERED: AUGUST 19, 2011; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
ON DISCRETIONARY REVIEW FROM
FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL, JR., JUDGE
ACTION NO. 09-XX-00034
COMMONWEALTH OF KENTUCKY
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BEFORE: DIXON, KELLER AND VANMETER, JUDGES.
DIXON, JUDGE: Appellant, Joshua Cromer, entered a conditional guilty plea in
the Fayette District Court to charges of operating a motor vehicle while under the
influence of alcohol, first offense, and carrying a concealed deadly weapon.
Appellant thereafter appealed to the Fayette Circuit Court the denial of his motion
for a choice of evils instruction, as well as motions to suppress evidence and to
disqualify the Fayette County Attorney’s office. The circuit court affirmed the
district court’s rulings and this Court thereafter granted Appellant’s motion for
discretionary review. Having reviewed the record and proceedings below, we now
In the early morning hours of June 13, 2008, Lexington Metro Police Officer
Anthony Bottoms was dispatched to the Shillito apartment complex to investigate a
report of a hit and run collision. Upon arriving at the scene, Appellant, who was
working as a security guard1 at the complex, told Officer Bottoms that he
witnessed a vehicle being driven recklessly through the parking lot and that it had
hit another parked car. Appellant, believing that the car had been stolen,
proceeded to get into his own vehicle and chase the other car, eventually blocking
it in an alley of the parking lot. The occupants thereafter fled on foot.
Although Appellant was not a suspect in the hit and run, witnesses told
Officer Bottoms and Sergeant Greg Marlin, who had also arrived on the scene, that
Appellant had been recklessly speeding through the parking lot after the suspect’s
vehicle. When further investigation revealed that Appellant’s blood alcohol level
was .147, he was arrested for driving under the influence of alcohol. During a
search of Appellant’s vehicle, Officer Bottoms discovered a ballistics vest similar
to those worn by police officers in the front passenger seat of the car. After being
notified of the vest, Sergeant Marlin conducted the remainder of the search, during
Appellant is a former Lexington Metro Police Officer.
which he discovered a loaded Glock 40-caliber handgun beneath the vest, as well
as a preliminary breath test (PBT) device. Appellant was unable to produce a
permit for the handgun and was also charged with carrying a concealed deadly
On July 1, 2008, Appellant filed a motion in the Fayette District Court to
suppress the evidence of the gun because the search of his vehicle was
unconstitutional. Appellant subsequently filed motions for an instruction on the
choice of evils defense and to disqualify the Fayette County Attorney’s office.
Following the denial of all motions, Appellant entered a conditional guilty plea to
both charges and thereafter appealed the denial of his motions to the circuit court.
The Fayette Circuit Court affirmed the lower court and this Court thereafter
accepted discretionary review. Additional facts are set forth as necessary.
Appellant first argues that the trial court erroneously denied his
request for an instruction on choice of evils under KRS 503.030. On the night of
his arrest, Appellant admitted to Officer Bottoms that he drove his vehicle after
having consumed alcoholic beverages and that as a former police officer he was
aware that such was illegal. However, he deemed his actions to be necessary to
stop an alleged car thief from potentially endangering the public while fleeing the
scene of a hit-and-run. Thus, Appellant argues that his actions were legally
justified by virtue of the fact that he was preventing a greater evil. The
Commonwealth counters that there is no evidence in the record to support
Appellant’s claim that the car was, in fact, stolen. In calling police on the night of
the incident, Appellant only reported a hit-and-run, not a vehicle theft.
Pursuant to KRS 503.030(1), illegal conduct may be justifiable where an
offender “believes it necessary to avoid an imminent public or private injury
greater than the injury which is sought to be prevented by the statute defining the
offense charged.” However, as noted by a panel of this Court in Beasley v.
Commonwealth, 618 S.W.2d 179, 180 (Ky. App. 1981), overruled on other
grounds in LaPradd v. Commonwealth, 334 S.W.3d 88 (2011),2 a choice of evils
instruction is only proper if the following contingencies are met: (1) the offender
has an objectively reasonable belief that the necessity of his action is mandated by
a “subjective value judgment;” (2) the offender’s action is contemporaneous with
the danger of injury sought to be avoided; (3) the injury is imminent, requiring an
immediate choice if to be avoided; and (4) the injury sought to be avoided
outweighs the charge warranted by the action of the offending party.
As further explained in Senay v. Commonwealth, 650 S.W.2d 259 (Ky.
1983), for this defense to be available, it must be shown that defendant's conduct
was necessitated by a specific and imminent threat of injury to his person under
circumstances which left no reasonable and viable alternative other than the
violation of the law for which he stands charged. In other words, the danger
Relying on Hager v. Commonwealth, 41 S.W.3d 828, 833 (Ky. 2001), the Court in LaPradd
held that once a defendant produces evidence to justify a choice of evils instruction, the burden is
on the Commonwealth to disprove the defense. Beasley was overruled to the extent it held
presented to the defendant must be “compelling and imminent, constituting a set of
circumstances which affords him little or no alternative other than the commission
of the act which otherwise would be unlawful.” Id. at 260. The commentary to
KRS 503.030(1) notes that practical examples of this necessity include where an
individual speeds through a school zone to get a dying person to a hospital or
where someone destroys the property of another to prevent the spread of fire.
We conclude that the district court properly found that the Beasley
contingencies were not met in this case. The record belies Appellant’s claim that
he believed driving under the influence was necessary to prevent a possible theft.
Indeed, when Appellant initially called police, he only reported a hit-and-run, not a
theft. Notwithstanding, we agree with the district court that it was simply
unreasonable to believe that operating a motor vehicle under the influence of
alcohol was justified under the circumstances presented. Likewise, there is no
evidence in the record that the risk of injury was so compelling or imminent as to
leave Appellant with no alternative to avoid the injury other than driving under the
influence. A general fear or threat is too speculative and anticipatory. Senay, at
261. Appellant’s claim that he was preventing imminent peril to other unidentified
motorists was certainly speculative at best. Finally, we agree with the district court
that the injury sought to be avoided did not outweigh the offending charge of DUI.
“Where a defendant fails to produce evidence which would support him in
choosing the commission of an otherwise unlawful act over other lawful means of
protecting himself, the trial court is not required to instruct the jury on the choice
of evils defense.” Id. at 260-261. Accordingly, the district court did not err in
denying the instruction on choice of evils.
Next, Appellant claims that the search of his vehicle violated the
United States Supreme Court’s decision in Arizona v. Gant, 556 U.S. 332, 129
S.Ct. 1710, 1723-24, 173 L.Ed.2d 485 (2009). Appellant contends there were
actually two searches of his vehicle. The first occurred when Officer Bottoms
searched for signs of alcohol use and found none. He did, however, observe the
ballistics vest and reported such to Sergeant Marlin. As a result, Sergeant Marlin
continued the search during which he removed the vest to check for a serial
number and discovered the firearm located underneath it. It is Sergeant Marlin’s
“second” search that Appellant claims violated Gant. We disagree.
In Gant, the Court stated:
Police may search a vehicle incident to a recent
occupant's arrest only if the arrestee is within reaching
distance of the passenger compartment at the time of the
search or it is reasonable to believe the vehicle contains
evidence of the offense of arrest. When these
justifications are absent, a search of an arrestee's vehicle
will be unreasonable unless police obtain a warrant or
show that another exception to the warrant requirement
129 S.Ct. at 1723-24. However, we believe that Gant is distinguishable from the
case herein. After the suspect in Gant was arrested for driving with a suspended
license, he was handcuffed and placed into the back of a patrol car. Police officers
thereafter searched his vehicle and found cocaine in the pocket of a jacket located
in the backseat. The United States Supreme Court ultimately found that the search
was unreasonable because the suspect was already handcuffed, not within reaching
distance of the passenger compartment, and, importantly, had been arrested on an
offense for which no evidence of such would have been found in the vehicle. Id. at
Here, although there is no dispute that Appellant was not within reaching
distance of the passenger compartment, he was arrested for an offense for which
evidence might reasonably be found in his vehicle. Further, we simply do not
believe that two separate searches occurred. Officer Bottoms stated that upon
discovering the ballistics vest, he immediately halted his search because he
believed Sergeant Marlin needed to be informed of the vest given Appellant’s
former employment as a police officer. Thereafter, Sergeant Marlin finished the
search of Appellant’s vehicle, and discovered the handgun and PBT.
On appeal, the circuit court herein observed that the officers’ probable cause
to search Appellant’s vehicle for evidence of DUI did not end upon discovery of
the ballistics vest, and it was proper for Sergeant Marlin to pick up the vest to see
if anything was located beneath it. We agree. As such, we cannot conclude that
the search violated Gant. The district court properly ruled that it was reasonable
for officers to believe that Appellant’s vehicle contained evidence of the DUI
Finally, Appellant contends that the trial court erred in refusing to
disqualify the Fayette County Attorney’s office.
Appellant is a former
Police Officer who was charged with misconduct regarding his involvement in the
2006 DUI arrest of country music singer John Michael Montgomery. Following an
investigation, Appellant was terminated, and thereafter brought lawsuits against the
Lexington-Fayette Urban County Government, the Lexington Police Department,
and Mr. Montgomery. Mr. Montgomery’s attorney at that time, Brent Caldwell, is
the father of the Fayette County prosecutor assigned to this case, Noel Caldwell.
Noel Caldwell clerked for his father’s former law firm, McBrayer, McGinnis,
Leslie and Kirkland, PLLC3, from May 2006 until December 2006. Although Noel
was employed by the firm during the time his father was representing Mr.
Montgomery in the DUI case, both Brent and Noel Caldwell testified that Noel did
not participate in any matters involving Mr. Montgomery. As such, the district
court ruled that Appellant failed to demonstrate actual prejudice. Nevertheless,
Appellant argues that disqualification is warranted because of the perception that
the Fayette County Attorney’s office has a special interest in his prosecution, as a
conviction might benefit Brent Caldwell’s success in the civil action involving Mr.
Montgomery. We conclude that Appellant is mistaken on the law and the facts.
KRS 15.733(2) statutorily defines instances where a prosecuting attorney
must disqualify himself from prosecuting a case on the basis of a conflict of
interest. Among those enumerated disqualifications is when the prosecutor has
knowledge that a member of his immediate family has “an interest that could be
substantially affected by the outcome of the proceeding.” KRS 15.733(2)(c).
The record shows that Brent Caldwell is no longer a member of the McBrayer Law Firm and,
does not still represent Mr. Montgomery.
Further, KRS 15.733(3) governs instances where the accused contends that the
prosecutor is biased against him. In order for a court to disqualify a prosecutor
under KRS 15.733(3), the accused must demonstrate actual prejudice. A showing
beyond “the mere appearance of impropriety” is generally required to justify the
disqualification of prosecutorial staff. Summit v. Mudd, 679 S.W.2d 225, 226 (Ky.
1984), holding modified by Whitaker v. Commonwealth, 895 S.W.2d 953 (Ky.
1995); see also Barnett v. Commonwealth, 979 S.W.2d 98 (Ky. 1998) (the conflictof-interest statute provides that a court may disqualify a prosecuting attorney upon
a showing of actual prejudice).
Relying on Whitaker v. Commonwealth, 895 S.W. 2d 953 (Ky. 1995) and
Commonwealth v. Maricle, 10 S.W.3d 117, 121 (Ky. 1999), Appellant argues that
he is not required to make a showing of actual prejudice for the prosecutor’s staff
to be disqualified. In Whitaker and Maricle, the Kentucky Supreme Court
modified the requirement of a showing of actual prejudice in certain instances.
The modified rule provides that a movant need not demonstrate actual prejudice
where a prosecuting or defense attorney has previously engaged in “substantial and
personal participation” in the opposing party’s case that involved an “exchange of
confidential information.” Whitaker, 895 S.W.2d at 956. Conversely, where an
attorney’s involvement in an opposing party’s case was merely “brief and
perfunctory” and did not entail an exchange of confidential information,
disqualification will not be appropriate without a showing of actual prejudice. Id.
Accordingly, based on Whitaker, Appellant argues that he was not required to
show actual prejudice, only the appearance of impropriety. Further, he asserts that
“a public perception of bias” can have an effect on the statements of witnesses and
compromises the public’s respect for the judicial system. Maricle, 10 S.W.3d at
Appellant’s reliance on Whitaker and Maricle is misplaced as the modified
rule only applies to the specific facts of those cases regarding the exchange of
confidential information. Here, Appellant simply cannot show that any member of
the Fayette County prosecutorial staff, including Noel Caldwell, conducted
“substantial and personal preparation” involving an “exchange of confidential
information” in connection with his case. As previously noted, Noel Caldwell did
not participate in Mr. Montgomery’s defense in the DUI case. Moreover, he was
no longer employed with the McBrayer Law Firm at the time Appellant filed the
civil action against Mr. Montgomery. We fail to perceive how Appellant’s
conviction would somehow benefit Mr. Montgomery as the record clearly indicates
that not only had Brent Caldwell not been involved in the civil case since leaving
the McBrayer Law Firm, but also that Appellant’s civil action against Mr.
Montgomery was dismissed by the Fayette Circuit Court4 in October 2007, before
the instant charges even arose. We conclude that the district court properly held
that Appellant failed to demonstrate actual prejudice under KRS 15.733. See
Summit and Barnett.
The orders of the Fayette District and Circuit Courts are affirmed.
The dismissal was affirmed by a panel of this Court in Cromer v. Montgomery, 2007-CA002389-MR (February 27, 2009).
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Fred E. Peters
Attorney General of Kentucky
Carlos A. Ross
Special Assistant Attorney General