MARTIN D. FISTER v. COMMONWEALTH OF KENTUCKY
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RENDERED: July 11, 2003; 10:00 a.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2001-CA-002461-MR
MARTIN D. FISTER
APPELLANT
APPEAL FROM SCOTT CIRCUIT COURT
HONORABLE PAUL F. ISAACS, JUDGE
ACTION NO. 00-CR-00012
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, McANULTY, AND PAISLEY, JUDGES.
McANULTY, JUDGE:
Martin D. Fister appeals from the Circuit
Court’s judgment convicting him of one count of wanton
endangerment in the first degree.
Fister argues that the trial
court’s acquittal of him on two additional offenses of wanton
endangerment in the first degree was inconsistent with the
court’s guilty verdict on the one count for the same offense
when the underlying action was tried to the bench and all the
charges arose from the same conduct and were supported by
“virtually” identical evidence.
Because we conclude that
inconsistent verdicts, whether rendered by a judge or a jury,
are not subject to reversal merely because they are
inconsistent, we affirm.
The three charges of wanton endangerment in the first
degree arose out of Fister’s actions on September 30, 1998,
toward three employees of Columbia Gas, Allen Kelly, Larry
Brown, and Charles Combs, who were dispatched to repair an
unmarked gas line ruptured by Fister’s construction crew earlier
in the day.
Prior to the rupture, the crew had been performing
site work as part of a contract awarded to Fister’s company,
Free Contracting, for road improvement in Scott County.
During the course of the road improvement project,
Fister’s company had experienced a couple of delays due to
ruptured gas lines.
Fister wanted Columbia Gas to accept
responsibility for the delay on September 30, 1998, and became
agitated when Allen Kelly refused to sign a document obligating
Columbia Gas to reimburse Fister’s company for any downtime that
occurred due to the repair of the gas line.
After Fister’s crew had been down for about two hours
due to the gas line rupture, Fister decided he could not wait
any longer for Brown and Combs, who were performing the actual
work, to complete the repair.
Fister claims that he told the
Columbia gas employees to get their tools away from the line so
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he could fill in the hole.
Then, Fister went to one of the
backhoes on site and got a load of gravel, weighing at least 500
pounds.
He drove the backhoe with the bucket of gravel to the
vicinity of the ruptured line with the intention of covering the
exposed line so his crews could return to work.
Combs had nearly completed the repair and had about
five to ten minutes left of work to wrap it up.
Combs was
hunched over the leaking gas pipe in the hole, which was about
one foot deep and a couple of feet wide, when Fister approached
on the backhoe.
Brown was assisting Combs and standing a little
to the side of the hole.
Allen Kelly was standing close to
Brown and Combs and in the way of Fister’s backhoe.
observed Fister coming toward them and yelled at him.
Kelly
When
Fister did not stop, Kelly screamed for Combs and Brown to move.
Combs was not aware of what Fister was doing, but he
heard Allen Kelly warning him to get out of the way.
Upon
hearing Kelly’s scream, Combs jumped back out of the hole and
away from the backhoe just as Fister dumped the bucket of
gravel.
Some of the gravel from the load sprinkled his boots.
Brown also moved back, out of the way, when he heard Allen
Kelly’s warning.
After Fister dumped the gravel, he told Brown and
Combs to move their truck.
Brown refused and took the keys out
of the truck so no one else could move it.
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When Brown refused
to move the truck, Fister instructed his site foreman to get a
chain and move the truck out of the way with a bulldozer, which
the foreman did.
One of the Columbia Gas supervisors called the police,
who later arrested Fister on-site and charged him with wanton
endangerment in the first degree.
Ultimately, the Grand Jury of
Scott County returned an indictment charging Fister with three
counts of wanton endangerment in the first degree, one count
each for Kelly, Combs and Brown.
The trial court conducted a bench trial and ultimately
found Fister guilty of one count of wanton endangerment in the
first degree as to the count related to Combs and acquitted him
of the other two charges related to Kelly and Brown.
The trial
court fined Fister $5,000 and sentenced him to one-year
imprisonment, which the court subsequently probated for a period
of five years with Fister serving five weekends in jail.
After the court rendered its verdict on September 7,
2001, Fister filed a motion for judgment notwithstanding the
verdict, for a new trial and for additional findings of fact on
September 14, 2001 (motion of September 14, 2001).
The trial
court denied the motion, precipitating this appeal.
Fister raises three arguments on appeal.
First,
Fister contends that his conviction must be reversed because the
Commonwealth produced insufficient evidence at trial to support
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the conviction of wanton endangerment in the first degree.
Second, Fister argues that the trial court violated his due
process rights when it arbitrarily convicted him of one count of
wanton endangerment and acquitted him on another count when the
evidence to support both counts was “virtually” identical.
Finally, Fister alleges that a supervisor at Columbia Gas
improperly communicated with the three prosecution witnesses
during the trial, which actions warrant a new trial.
As a preliminary matter, we hold that Fister failed to
properly preserve for appellate review any of the three
arguments set out above.
1.
We will discuss each argument in turn.
Insufficient Evidence
The first issue on appeal is sufficiency of the
evidence presented against Fister to support his conviction.
Fister asserts that he preserved this argument in his motion of
September 14, 2001, when he requested specific findings of fact
regarding each element of the offense even though he did not
specifically allege insufficient evidence.
The proper method,
however, for preserving this argument for our review is a motion
for directed verdict alleging insufficiency of evidence at the
close of the Commonwealth’s case.
Ky., 973 S.W.2d 54, 55 (1998).
See Baker v. Commonwealth,
Then, Fister should have renewed
his motion for directed verdict at the close of all the
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evidence, thus allowing the trial court the opportunity to pass
on the issue in light of all the evidence.
See id.
Notwithstanding trial counsel’s failure to preserve
the insufficient evidence argument, Fister asks us to review the
alleged error under Rule 10.26 of the Kentucky Rules of Criminal
Procedure (RCr 10.26).
RCr 10.26 states “[a] palpable error
which affects the substantial rights of a party may be
considered by the court on motion for a new trial or by an
appellate court on appeal, even though insufficiently raised or
preserved for review, and appropriate relief may be granted upon
a determination that manifest injustice has resulted from the
error.”
Because we have held that insufficient evidence to
support a conviction amounts to palpable error affecting the
substantial due process rights of a defendant, we will consider
the issue even though it was not properly preserved.
See
Perkins v. Commonwealth, Ky. App., 694 S.W.2d 721, 722 (1985).
On the merits, “the relevant question is whether,
after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61
L. Ed. 2d 560 (1979)(emphasis in original).
Such a standard
gives full play to the responsibility of the
trier of fact fairly to resolve conflicts in
the testimony, to weigh the evidence, and to
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draw reasonable inferences from basic facts
to ultimate facts. Once a defendant has been
found guilty of the crime charged, the
factfinder's role as weigher of the evidence
is preserved through a legal conclusion that
upon judicial review all of the evidence is
to be considered in the light most favorable
to the prosecution.
Id.
The trial court convicted Fister of one count of first
degree wanton endangerment of Charles Combs.
“A person is
guilty of wanton endangerment in the first degree when, under
circumstances manifesting extreme indifference to the value of
human life, he wantonly engages in conduct which creates a
substantial danger of death or serious physical injury to
another person.”
KRS 508.060(1).
A defendant acts “wantonly
. . . when he is aware of and consciously disregards a
substantial and unjustifiable risk that the result will occur or
that the circumstance exists.”
KRS 501.020(3).
In this case, the Commonwealth met its burden in
proving each of the necessary elements of first degree wanton
endangerment.
The Commonwealth established that Fister was a
professional engineer who was well aware of the danger in
operating heavy construction machinery close to an individual
like Combs who was engaged in repairing a ruptured gas line and
who was not paying attention to Fister.
In addition, Fister had
at least 500 pounds of gravel in the bucket of the backhoe.
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In
order to dump the gravel as Fister intended, he had to raise the
bucket up, in very close proximity to Combs who was hunched
over.
Moreover, as Combs had not yet completed the repair to
the gas line, gas was escaping and could have easily been
ignited by any number of factors present on a construction work
site located by a heavily traveled roadway.
Finally, had the
backhoe slipped or the bucket slipped or the gas ignited, Combs
would have sustained serious physical injury or death.
2.
Inconsistency of Verdicts
The second issue on appeal is the trial court violated
Fister’s due process rights when it arbitrarily convicted him of
one count of wanton endangerment and acquitted him on another
count when the evidence to support both counts was “virtually”
identical.
Fister asserts that he preserved this argument in
his motion of September 14, 2001, when he requested specific
findings of fact regarding each element of the offense even
though he did not specifically allege that an inconsistent
verdict rendered by a judge is an arbitrary exercise of power.
Since this argument is essentially an argument pertaining to the
sufficiency of evidence, as we will develop later, the proper
method of preserving this argument for our review is a motion
for directed verdict alleging insufficiency of evidence at the
close of the Commonwealth’s case and later renewed at the close
of all the evidence.
See Baker, 973 S.W.2d at 55.
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Fister asks us to review this asserted error under RCr
10.26 even if we hold that his trial counsel did not properly
preserve the issue for appeal.
As we discussed in Argument 1 of
this opinion, in order to reach the merits, we must determine
that a palpable error exists which affects Fister’s substantial
rights.
Fister argues that the palpable error is the trial
court’s inconsistent verdict which we may review as a check
against arbitrary exercises of power.
In support, Fister relies
on People v. Pierce, N.Y. App., 40 A.D.2d 581 (1972), but, we do
not find this case persuasive for two reasons.
First, the
verdict in Pierce was not inconsistent; it was “repugnant.”
Id.
In that case, a jury convicted the defendant of the criminal
sale of a dangerous drug in the fourth degree and acquitted the
defendant of criminal possession of a dangerous drug with intent
to sell.
See id.
Considering the elements of the two crimes,
the court determined that “by no rational process could the jury
acquit the defendant of the crime of criminal possession of a
dangerous drug with intent to sell” and convict him for criminal
sale.
Id.
In order for the jury to convict the defendant for
criminal sale, they necessarily had to find the same elements
required for a conviction under the criminal possession with
intent to sell charge.
Second, the Pierce court acknowledged
that “[i]t is well established that each count in an indictment
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is to be treated as if it were a separate indictment and
consistency in the verdicts is unnecessary.”
Id. at 581 (citing
Dunn v. United States, 284 U.S. 390, 393, 52 S. Ct. 189, 76 L.
Ed. 356 (1932)).
Fister is correct in asserting that Kentucky courts
have not decided the issue of inconsistent verdicts rendered by
a judge; however, the Kentucky Supreme Court has addressed a
reviewing court’s approach to inconsistent verdicts rendered by
a jury.
See Commonwealth v. Harrell, Ky., 3 S.W.3d 349, 351
(1999).
Relying on Dunn, the court held that
rigid adherence to a prohibition against
inconsistent verdicts may interfere with the
proper function of a jury, particularly with
regard to lenity. Such an approach would
unduly restrict the right of the jury to
consider the evidence broadly and convict or
acquit based upon its view of the evidence
pertaining to each charge. Moreover, that
approach requires analytical precision that
would inevitably lead to confusion and
needless appellate reversals.
The better approach would be to examine the
sufficiency of the evidence to support each
verdict. This approach is consistent with
the United State Supreme Court's holding
that each count of an indictment should be
regarded as a separate indictment, and thus
consistency in a verdict is not necessary.
Id. (internal citations omitted).
Other courts that have addressed the question of
whether an inconsistent verdict rendered by a judge is
reviewable “have held that inconsistent verdicts rendered by a
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judge provide no greater grounds for reversal than inconsistent
verdicts rendered by a jury.”
United States v. Chilingirian,
280 F.3d 704, 711 (6th Cir. 2001); see e.g., United States v.
West, 549 F.2d 545, 553 (8th Cir. 1977) (citing Dunn and adhering
to the “general rule that consistency between the verdicts on a
multiple-count indictment is unnecessary when a defendant is
convicted on one or more counts but acquitted on the
remainder”); United States v. Wright, 63 F.3d 1067, 1074 (11th
Cir. 1995) (holding that “inconsistent verdicts, whether
provided by juries or judges, are not subject to reversal merely
because they are inconsistent”).
Fister relies heavily on United States v. Maybury, 274
F.2d 899 (2nd Cir. 1960), for the proposition that an
inconsistent verdict in a criminal case before a judge
constitutes evidence of arbitrariness.
However, since the
Second Circuit issued the Maybury opinion in 1960, the United
States Supreme Court considered the question of inconsistent
verdicts rendered by a trial judge in Harris v. Rivera, 454 U.S.
339, 102 S. Ct. 460, 70 L. Ed. 2d 530 (1981).
In Harris, the
defendant submitted a petition for a writ of habeas corpus in
federal court, arguing that his guilty verdict in state court
was inconsistent from his co-defendant’s acquittal.
340.
See id. at
Although the Court was limited to looking for a
constitutional violation in the state court proceedings, the
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Court acknowledged the general rule that “[i]nconsistency in a
verdict is not a sufficient reason for setting it aside” and
rejected the contention that “a different rule should be applied
to cases in which a judge is the factfinder.”
Id. at 345-46.
Ultimately, the Harris Court was not persuaded that an
“apparent inconsistency in a trial judge's verdict gives rise to
an inference of irregularity in his finding of guilt that is
sufficiently strong to overcome the well-established presumption
that the judge adhered to basic rules of procedure.”
347.
Id. at
The Court went on to state that “[o]ther explanations for
an apparent inconsistency are far more likely.”
Id.
One such
explanation that the Court noted was the likelihood that, after
observing everything that transpired in the courtroom during the
trial, the judge had some doubt as to the defendant’s guilt that
“he might or might not be able to articulate in a convincing
manner.”
Id.
Indeed, that appears to be the case here.
After
hearing the case, the trial court had reasonable doubt as to
Fister’s guilt on the counts of the indictment involving Kelly
and Brown, but was convinced of Fister’s guilt on the count
involving Combs.
In conclusion, we adhere to Kentucky’s general
approach that consistency of a verdict is not necessary, even in
a bench trial.
Instead, we shall examine the sufficiency of the
evidence to support the verdict.
Because we concluded in
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Argument 1 that there was sufficient evidence to support
Fister’s conviction on the one count of wanton endangerment
pertaining to Combs, we hold that no palpable error exists which
affects Fister’s substantial rights in the mere assertion that
the trial court’s verdict was inconsistent.
3.
Allegation of Improper Communications
The final issue on appeal is whether an allegation of
improper communications between a Columbia Gas supervisor and
the three prosecution witnesses during the trial warrants a new
trial.
Specifically, Fister alleges that Columbia Gas executive
Mike Webb remained in the courtroom during the trial as an
observer and attempted to influence the testimony of Kelly,
Combs and Brown through a series of hand gestures and facial
expressions.
Fister’s sister, Regina DeMoss, observed the
gestures and facial expressions.
In addition, the courtroom
bailiff, Jim Traylor, observed some types of gestures going on
between Mike Webb and the three prosecution witnesses.
Fister asserts that he preserved this argument in his
motion of September 14, 2001; however, he did not bring this
behavior to the trial court’s attention during the trial when
the trial court would have been in a position to observe the
communications first-hand.
Instead, Fister waited for a month
and a half to advise the court of the alleged impropriety.
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Nonetheless, since the trial court conducted a hearing
on October 1, 2001, in response to Fister’s motion on the
allegation of improper communications, thus waiving the
procedural bar, we reach the merits of Fister’s final argument.
In the hearing, the bailiff, Jim Traylor testified that he
watched Mike Webb while the three Columbia Gas employees were
testifying.
Traylor noticed that Webb was shaking his head and
nodding during their testimony, but he did not know whether this
was for the purpose of communicating or not.
Contrary to
Fister’s assertion in his brief that “Deputy Traylor testified
that Webb stopped gesturing and making facial expressions when
asked to do so,” Deputy Traylor actually testified that he “went
over to” Mike Webb, and when he did, the gestures stopped.
Deputy Traylor never testified that he asked Mike Webb to stop
doing anything.
It seems that Deputy Traylor merely stood
beside him.
Mike Webb also testified in the hearing.
His
testimony was that he may have been nodding or shaking his head
during certain parts of the trial, but he was not trying to
communicate and never intended to communicate with any of the
witnesses.
Webb did specifically remember shaking his head
about one fact when he believed the witness’s memory was
incorrect, but, in shaking his head, he was not attempting to
communicate with the witness.
In addition, Webb described one
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occasion while Fister was testifying on direct examination that
he attempted to get the prosecutor’s attention to relate a point
concerning the “leak sheets” about which Fister was testifying.
After the hearing, the trial court issued an opinion
and order finding that there was no proof that Mike Webb
communicated or attempted to communicate with any of the
witnesses.
Moreover, the court noted that it observed people in
the audience during the trial connected to Fister who were
nodding and shaking their heads and who obviously had no intent
to communicate with the witnesses for the purpose of altering
their testimony.
Accordingly, the trial court denied Fister’s
motion for judgment notwithstanding the verdict, motion for a
new trial, and motion for additional findings of fact.
The appropriate standards of review pertaining to the
relief Fister sought in his motion of September 14, 2001, vary
somewhat.
When reviewing a trial court’s denial of a new trial,
“[t]he trial court is vested with a broad discretion in granting
or refusing a new trial, and this Court will not interfere
unless it appears that there has been an abuse of discretion.”
Whelan v. Memory-Swift Homes, Inc., Ky., 315 S.W.2d 593,
594 (1958).
Moreover, when reviewing a trial court’s denial of
a motion to alter or amend or vacate a judgment (judgment
notwithstanding the verdict), we are to consider the evidence in
the light most favorable to the Commonwealth and give them every
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reasonable inference that can be drawn from the record.
Brewer v. Hillard, Ky. App., 15 S.W.3d 1, 9 (1999).
See
In
addition, we are to affirm the trial court’s denial of the
motion "unless there is a complete absence of proof on a
material issue in the action, or if no disputed issue of fact
exists upon which reasonable men could differ."
Taylor v.
Kennedy, Ky. App., 700 S.W.2d 415, 416 (1985).
Finally, a
finding of fact by a trial judge will not be disturbed unless
clearly erroneous.
See Owens-Corning Fiberglas Corp. v.
Golightly, Ky., 976 S.W.2d 409, 414 (1998).
Under any standard of review set out above, we hold
that Fister failed to establish any misconduct on the part of
the Commonwealth, its prosecution witnesses or Mike Webb, the
representative of Columbia Gas who was observing the trial.
The
only evidence presented at the hearing of October 1, 2001, was
that Mike Webb moved his head during the trial and attempted at
one point during Fister’s testimony to get the prosecutor’s
attention.
Any other conclusion that Mike Webb was attempting
to “coach” or “influence” is pure conjecture unsupported by any
evidence.
For the foregoing reasons, the order of the Scott
Circuit Court is affirmed.
ALL CONCUR.
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BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
Milton C. Toby
Perch & Toby
Lexington, Kentucky
BRIEF FOR APPELLEE:
Albert B. Chandler III
Attorney General of Kentucky
Michael L. Harned
Assistant Attorney General
Frankfort, Kentucky
ORAL ARGUMENT FOR APPELLEE:
Michael L. Harned
Frankfort, Kentucky
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