DERRICK MOTLEY v. COMMONWEALTH OF KENTUCKY
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RENDERED:
APRIL 28, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-001028-MR
DERRICK MOTLEY
v.
APPELLANT
APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE JOHN L. ATKINS, JUDGE
ACTION NO. 04-CR-00168
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; BUCKINGHAM AND KNOPF, JUDGES.
COMBS, CHIEF JUDGE:
Derrick Motley appeals his convictions for
fleeing or evading police and for being a persistent felony
offender in the second degree.
Finding no error, we affirm.
On the evening of July 5, 2002, Hopkinsville City
Police Officer Jeff Crawford was on patrol when he observed a
car driven by Derrick Motley disregard a stop sign at the
intersection of Second and Campbell Streets in Hopkinsville.
Officer Crawford activated his cruiser’s flashing lights and
siren; he notified dispatch that he was about to initiate a
traffic stop.
However, Motley did not respond to the lights and
siren.
Near the intersection of Fourth and Campbell Streets,
Motley slowed momentarily behind another vehicle and then cut
sharply into a service station parking area in order to avoid
the intersection.
Motley bounced roughly back onto the roadway,
and Officer Crawford continued to pursue the speeding vehicle.
Officer Crawford accelerated, bringing him close to Motley’s
vehicle.
Motley erratically overtook the car travelling
immediately ahead of him.
were forced to give way.
utility pole.
Other vehicles travelling eastbound
Eventually, Motley’s car struck a
The car spun around in the roadway several times,
hit a metal fence, and then struck another utility pole.
The
car came to rest on the roadway and was blocking traffic in both
directions.
Motley’s vehicle began smoking profusely and was
apparently rendered inoperable.
Motley jumped from the vehicle
but he was met by Officer Crawford, who had drawn his revolver.
Motley was placed under arrest.
On March 12, 2004, the grand jury indicted Motley on
counts of fleeing or evading police, operating a motor vehicle
under the influence of alcohol, disregarding a stop sign, and
being a persistent felony offender in the second degree.
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Motley
pleaded not guilty, and the matter proceeded to trial in
February 2005.
During a portion of Officer Crawford’s direct
testimony, the jury viewed the chase as it was captured on the
police cruiser’s video-recorder.
After the evidence had been
presented, the jury found Motley guilty of the felony counts of
the indictment.
On May 12, 2005, the trial court entered a
judgment consistent with the jury’s verdict and sentenced
Crawford to a total of ten-years’ imprisonment.
This appeal
followed.
On appeal, Motley argues that his trial was riddled
with errors.
He concedes, however, that the only issue
preserved for review was the refusal of the trial court to
direct a verdict of acquittal.
KRS1 520.095(1)(a) provides that a person is guilty of
fleeing or evading police in the first degree when:
while operating a motor vehicle with intent
to elude or flee, the person knowingly or
wantonly disobeys a direction to stop his or
her motor vehicle, given by a person
recognized to be a police officer, and . . .
[b]y fleeing or eluding, the person is the
cause, or creates substantial risk, of
serious physical injury or death to any
person or property[.]
Serious physical injury is defined by KRS 500.080(15) as:
“physical injury which creates a substantial risk of death, or
1
Kentucky Revised Statutes.
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which causes serious and prolonged disfigurement, prolonged
impairment of health, or prolonged loss or impairment of the
function of any bodily organ.”
Motley contends that the evidence presented at trial
was insufficient to prove him guilty of fleeing or evading
police in the first degree.
He argues that he was entitled to a
directed verdict on the charge because the Commonwealth failed
to prove that he either caused or created a substantial risk of
serious physical injury or death to any person.
We disagree.
We review this argument under the standard set forth
in Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991):
On motion for directed verdict, the trial
court must draw all fair and reasonable
inferences from the evidence in favor of the
Commonwealth. If the evidence is sufficient
to induce a reasonable juror to believe
beyond a reasonable doubt that the defendant
is guilty, a directed verdict should not be
given. For the purpose of ruling on the
motion, the trial court must assume that the
evidence for the Commonwealth is true, but
reserving to the jury questions as to the
credibility and weight to be given to such
testimony.
On appellate review, the test of a directed
verdict is, if under the evidence as a
whole, it would be clearly unreasonable for
a jury to find guilt, only then the
defendant is entitled to a directed verdict
of acquittal.
The question of whether a suspect’s flight creates a
substantial risk of death or serious physical injury is
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dependent on the particular facts of the case.
There are
relatively few cases involving a determination of the likelihood
of serious physical injury as a matter of law.
Lawson v.
Commonwealth, 85 S.W.3d 571 (Ky. 2002).
In Bell v. Commonwealth, 122 S.W.3d 490, 497 (Ky.
2003), the Supreme Court of Kentucky observed that a risk must
be “ample” or “considerable” in order to rise to the level of
being a “substantial risk.”
A jury may draw all reasonable
inferences from the evidence in determining whether a
substantial risk of serious physical injury or death was created
by the defendant.
So may we as a reviewing court.
Motley evaded Officer Crawford by driving erratically
at dangerously high speeds.
The chase occurred in the dark.
It
began in a relatively congested traffic area and ended in a
smoky, twisted wreck.
Drivers in Motley’s path veered hastily
away from the roadway, and at least two vehicles approaching the
crash scene were forced to make unsafe turns to avoid the
wreckage.
Officer Crawford met Motley with his gun drawn.
We believe that the jury could reasonably infer that
Motley’s flight created a real and substantial risk of serious
physical injury or death to himself and to others.
In fact, the
evidence in this case is overwhelming, and no jury reasonably
could have believed that Motley fled or evaded the police under
these circumstances without creating a substantial risk of death
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or serious physical injury.
See Lawson, supra.
Consequently,
the trial court did not err in denying Motley’s motion for a
directed verdict on the fleeing or evading charge.
As noted above, Motley’s remaining arguments were not
adequately preserved for our review.
Nevertheless, we may
review the alleged errors under the palpable error standard of
RCr2 10.26.
For an error to be considered palpable, it must be
“easily perceptible, plain, obvious[,]and readily noticeable.”
Burns v. Level, 957 S.W.2d 218, 222 (Ky. 1997) (citing Black’s
Law Dictionary (6th ed. 1995)).
The prejudice caused by palpable
error must be “more egregious than that occurring in reversible
error.”
Ernst v. Commonwealth, 160 S.W.3d 744, 758 (Ky. 2005).
A palpable error must be so grave in nature that the failure to
correct it would seriously affect the fairness of the
proceedings.
Id.
Relief should be granted only if upon
consideration of the case as a whole, there exists a substantial
possibility that the result in the trial court would have been
different but for the error.
Schoenbachler v. Commonwealth, 95
S.W.3d 830, 836 (Ky. 2003).
We have closely examined the record in this case.
We
are not persuaded that there is a substantial possibility that
the result would have been any different absent the alleged
trial errors.
2
Thus, the errors, if any, were harmless and are
Kentucky Rules of Criminal Procedure.
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not amenable to the palpable error analysis set forth in RCr
10.26.
The judgment of the Christian Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Lisa Bridges Clare
Department for Public Advocacy
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Louis F. Mathias, Jr.
Assistant Attorney General
Frankfort, Kentucky
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