ROBERT HATTON V COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
IMPORTANT NOTICE
NOT TO BE PUBLISHED PINION
THIS OPINION IS DESIGNA TED "NOT TO BE
PUBLISHED." PURSUANT TO THE RULES OF
CIVIL PROCED URE PROMULGATED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS A UTHORITY IN ANY OTHER
CASE INANY COURT OF THIS STA TE.
RENDERED : AUGUST 26, 2004
NOT TO BE PUBLISHED
u~~ttt
a~trf ~a~
2003-SC-0722-MR
10AT
ROBERT HATTON
APPELLANT
APPEAL FROM BATH CIRCUIT COURT
HONORABLE BETH LEWIS MAZE, JUDGE
02-C R-00043
V
APPELLEE
COMMONWEALTH OF KENTUCKY
MEMORANDUM OPINION OF THE COURT
Affirminq
Appellant, Robert Hatton, was convicted in the Bath Circuit Court on one count of
second-degree manslaughter and four counts of first-degree wanton endangerment . He
was sentenced to a total of twenty years imprisonment and appeals to this Court as a
matter of right.
Appellant's convictions stem from a vehicular accident involving Appellant and
another vehicle . The individual driving the other vehicle was killed, and the passengers
were injured . Evidence presented at trial established two very different versions of
events leading up to the crash . Appellant stated that during the early evening hours of
October 6, 2002, he returned home with his nine-year-old daughter, Jessica . Appellant
stated that they had intended to pick up his wife, Laura, and go out for a family dinner .
As Jessica exited Appellant's van, he noticed that the door of his jeep, which was also
parked in the driveway, was open. Appellant then saw a man duck down, run around
the side of the jeep, get in it and speed away. Appellant claimed that he thought
Jessica had been abducted and he yelled to his wife, whom he believed was in their
house, to call 911 . Appellant got back into his van and sped off in pursuit of the jeep .
He stated that when he caught up to the jeep at a curve in the road, the driver hit the
brakes, causing Appellant to run into the back of it. After crossing over a bridge, both
drivers lost control of the vehicles . Appellant testified that he realized he was not going
to make the curve in the road, locked his brakes, and his van hit an embankment and
pine tree . The jeep went over the embankment .
The Commonwealth, on the other hand, presented evidence that on the day of
the accident, Laura had sought an EPO against Appellant due to repeated physical
abuse . Laura was waiting for Appellant to return home so she could get Jessica and
leave the premises before he learned of the EPO. Laura testified that when Appellant
drove in the driveway, she exited the house, followed by her sister, Christine, as well as
friends, Patty and Joe Wills . Laura met Jessica in the driveway and led her to the jeep .
Laura stated that once everyone was in the jeep, Joe drove away at a normal rate of
speed . The surviving passengers testified that they all knew Appellant, and that,
contrary to Appellant's story, he clearly saw them exit the house and get into the jeep .
Laura further testified that shortly after they drove away, Appellant's van
appeared behind them and repeatedly began rear-ending the jeep . Laura stated that
Patty Wills was able to call 911 from her cell phone to report that Appellant was trying to
kill them . The jeep was then forced off the road and over the embankment . Joe Wills
died at the scene from injuries he sustained during the accident . The Commonwealth
presented further evidence that immediately after the accident, a test revealed that
Appellant's blood-alcohol level was .19 percent .
On October 18, 2002, the Bath County Grand Jury indicted Appellant for one
count of murder, four counts of first-degree wanton endangerment, and one count of
operating a motor vehicle while under the influence. The case proceeded to trial in July
2003 . The jury found Appellant guilty of second-degree manslaughter and four counts
of first-degree wanton endangerment, and recommended a total of thirty years
imprisonment. Pursuant to KRS 532.110(1)(c), the trial court reduced the
recommended sentence to the maximum aggregate of twenty years, and fined
Appellant $1,000 . This appeal ensued . Additional facts are set forth as necessary.
I.
Appellant first argues that because the Commonwealth introduced insufficient
evidence on the first-degree wanton endangerment charges, he was entitled to a
directed verdict. While Appellant concedes that he acted wantonly, and even that his
conduct with respect to the four passengers created a substantial danger of their death
or serious physical injury, he contends that "no rational trier of fact could have found
beyond a reasonable doubt that [his] undertaking a vehicle pursuit of an unknown
person he believed just kidnapped his young daughter . . . was acting under
circumstances manifesting an extreme indifference to the value of human life ." While
recognizing that jury verdicts need not be logically consistent, Appellant posits that the
jury's inability to find extreme indifference with respect to the death of Joe Wills is
significant to the sufficiency of the evidence for the wanton endangerment charges.
The instructions under which Appellant was convicted provided as follows :
INSTRUCTION NO. 5
SECOND-DEGREE MANSLAUGHTER
If you do not find Defendant guilty under Instruction No . 4, you will
find the Defendant guilty of Second-Degree Manslaughter under this
Instruction if, and only if, you believe from the evidence beyond a
reasonable doubt all of the following :
A . That in this county on or about October 6, 2002 and before the
finding of the Indictment herein, he operated a motor vehicle under the
influence of alcohol and/or in such a manner as to cause a wreck which
resulted in the death of Joseph Wills;
AND
B . That in so doing, he was acting wantonly as that term is defined
under Instruction No. 3.
INSTRUCTION NO. 7
FIRST-DEGREE WANTON ENDANGERMENT
You will find the Defendant guilty of First-Degree Wanton
Endangerment under this Instruction if, and only if, you believe from the
evidence beyond a reasonable doubt all of the following :
A. That in this county on or about October 6, 2002 and before the
finding of the Indictment herein, he operated a motor vehicle under the
influence of alcohol and/or in such a manner as to cause the vehicle
occupied by [passenger]' to leave the roadway ;
AND
B . That he thereby wantonly created a substantial danger of death
or serious physical injury to [passenger] ;
AND
C . That under the circumstances, such conduct manifested extreme
indifference to the value of human life.
The jury was also instructed that it could find Appellant guilty of murder if it believed that
Appellant, while operating a vehicle under the influence of alcohol and/or in such a
' The jury was separately instructed on first and second-degree wanton endangerment
with respect to each of the four passengers.
4
manner as to cause a wreck which resulted in the death of Joe Wills, was wantonly
engaging "in conduct which created a grave risk of death to another and thereby caused
the death of Joseph Wills under circumstances manifesting an extreme indifference to
human life." (Emphasis added) .
Under the murder instruction, the jury had to find not only that Appellant's actions
resulted in the death of Joe Wills under circumstances manifesting an extreme
indifference to human life, but also that they created a grave risk of death to another .
Such finding was not required under the first-degree wanton endangerment instructions .
Therefore, the jury's verdicts were not truly inconsistent even though it found that
Appellant acted with extreme indifference with respect to the four passengers but not
with respect to Joe Wills .
Notwithstanding the consistency of the verdicts, this Court in Commonwealth v .
Harrell , Ky. 3 S.W.3d 349, 351 (1999) held :
[A] rigid adherence to a prohibition against inconsistent verdicts
may interfere with the proper function of a jury, particularly with
regard to lenity. See Dunn v. United States , 284 U .S . 390, 393, 52
S.Ct. 189, 190, 76 L.Ed . 356, 359 (1932); United States v. Powell ,
469 U .S . 57, 61, 105 S. Ct . 471, 474, 83 L. Ed .2d 461, 466 (1984).
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. Dunn v . United
States , 284 U .S . at 393, 52 S .Ct. at 190, 76 L.Ed . at 358 (1932);
United States v. Powell, 469 U .S . at 67, 105 S .Ct. at 475, 83
L .Ed .2d at 467 (1984) .
Despite Appellant's belief that no rational jury could have found that his pursuit of an
unknown perpetrator who had just kidnapped his daughter amounted to circumstances
manifesting an extreme indifference to human life, the Commonwealth presented
substantial evidence to contradict his story. Viewing the evidence in a light most
favorable to the Commonwealth, we conclude that it presented more than sufficient
evidence to withstand a directed verdict on the first-degree wanton endangerment
charges . Commonwealth v. Benham , Ky., 816 S .W.2d 186, 187 (1991) .
II .
Appellant next argues that he was prejudiced by the jury's use of a dictionary
during the guilt phase deliberations . Appellant asserts that "[d]ismissing the error as
harmless without taking any precautionary measures to determine the exact nature of
the prejudice or to ameliorate it was clearly erroneous and an abuse of the trial court's
discretion ." For reasons to be discussed, we disagree .
After the jury had been deliberating for approximately four hours, the foreperson
asked the bailiff for a dictionary. Before the bailiff could return with an answer from the
trial court, the jury located a dictionary in the jury room and looked up the word
"indifference ." The trial court thereafter advised counsel of the situation . The
Commonwealth responded that the use of a dictionary was not a waivable defect and
the jury could not be rehabilitated if they had, in fact, opened the dictionary during
deliberations. Defense counsel disagreed and requested that the trial court inquire as
to whether the jury had used the dictionary .
When the jury returned to the courtroom, the foreperson informed the trial court
that they had looked up the word "indifference," but that its definition had had absolutely
no effect on the deliberations . The trial court thereafter explained that use of the
dictionary definition was improper, but instructed the jury to continue deliberating while
the trial court and counsel conducted research to determine if a mistrial needed to be
declared . The trial court reassured the jurors it was not their fault that they opened the
dictionary, noting "that's what intelligent people do - try to find the answers ."
About thirty minutes later, the trial court called the jurors back to inform them that
there was case law directly on point and that the trial did not need to be halted so long
as the jury had not relied on the dictionary definition of indifference . The foreperson
again, in the presence of the jury, affirmatively denied any such reliance . After the jury
returned to its deliberations, Appellant and defense counsel both specifically waived any
irregularity in the proceedings . The prosecutor, however, refused to do so, and noted
his objection on the record .
Appellant now argues that the presence of the dictionary in the jury room tainted
the jury's decision and was reversible error. Appellant points out that the case relied on
by the trial court, Cole v . Commonwealth , Ky., 553 S .W .2d 468 (1977), specifically holds
that "[t]here is a time and a place for all things . Permitting a jury to take a dictionary into
the jury room is neither the time nor the place ." Id . at 471 . In Cole, the defendant
alleged that the jury had used dictionary definitions of "wanton act" and "wanton
indifference" as substitutes for the trial court's definition of such terms . This Court
concluded the presence of the dictionary was harmless error because it was unclear
what use, if any, the jury had made of the dictionary. Id . Appellant points out, however,
that Cole is distinguishable from this case in that the instructions in Cole not only
defined both terms, but the trial court also orally clarified the terms to the jury upon
2 The prosecutor went so far as to argue that the error "guaranteed reversal" and that
Appellant's waiver did not prevent reversal on RCr 11 .42 grounds of ineffective
assistance of counsel . Defense counsel maintained that based on the foreperson's
statements, any error was harmless, at best.
7
request. In the instant case, "indifference" was neither defined nor explained by the trial
court .
Of course, jurors cannot obtain information from outside sources, such as a
dictionary, for guidance on the law. See Grooms v . Commonwealth , Ky., 756 S.W.2d
131 (1988) ("No extraneous matter is permitted in the jury room . ")(Stephens, J .,
concurring) . As a Florida court commented, "No maker of dictionaries should ever be
allowed to define legal terms to a jury unless such definitions go through the medium of
the trial judge, the only one authorized by law to give definitions and explanations to the
jury ." Smith v. State , 95 So .2d 525, 528 (Fla . 1957) . Indeed, we held as much in Cole,
supra .
In this case, however, preservation is fatal to Appellant's claim. He erroneously
argues that the issue is preserved by the Commonwealth's objection at trial,
notwithstanding the fact that both he and his counsel were adamant about the jury
continuing its deliberations. More likely than not, it was simply a matter of trial strategy
that counsel believed the jury was struggling with the first-degree wanton endangerment
instruction and would return a lesser verdict . Nonetheless, RCr 9.22 requires a party to
render a timely and appropriate objection in order to preserve an issue for review.
"Violations of constitutional rights, the same as of other rights, may be properly waived
by failure to make timely and appropriate objection." See Baker v. Commonwealth , Ky.,
922 S .W.2d 371 (1996) . In light of the fact that Appellant affirmatively waived any
irregularity, he cannot now claim reversible error. To allow such would be to condone
the practice of building error into the record to warrant reversal on appeal.
Regardless of preservation, however, we are not convinced that reversal would
be warranted under the circumstances presented herein . As the Sixth Circuit Court of
Appeals reasoned in United States v . Griffith , 756 F .2d 1244, 1251-52 (6th Cir. 1985),
cert. denied , 474 U .S . 837 (1985), "A jury's use of a dictionary to define a relevant legal
term is error, but it is not prejudicial per se." See also United States v. Gillespie, 61
F.3d 457 (6th Cir. 1995) . The trial court questioned the foreperson in the presence of
the jury as to whether the dictionary definition of "indifference" had any impact upon the
deliberations . The foreperson responded unequivocally that it had not. While the trial
court did not question each juror individually, there is absolutely no evidence in the
record to indicate that anyone had a contrary opinion . Further, although Appellant
emphasizes the fact that the jury was not specifically admonished to disregard the
dictionary definition, there is no doubt that the jury was aware the dictionary was
improper .
We presume that a properly empanelled jury follows the law and reaches a
verdict based on the evidence and instructions . There is no basis to conclude in this
case that the foreperson's denial of any influence from the dictionary was somehow
suspect . "[O]ne who is trying as an honest man to live up to the sanctity of his oath is
well qualified to say whether he has an unbiased mind in a certain matter ." Gillespie,
supra at 459 (uotin
Smith v. Phillips, 455 U .S . 209, 217 n . 7, 102 S.Ct. 940, 946 n .7,
71 L.Ed .2d 78 (1982)) .
Appellant has failed to establish that the jury's use of the dictionary resulted in
prejudice or affected his right to a fair trial . The trial court concluded that the jury had
not relied on the dictionary, and this conclusion is amply supported by the record .
Accordingly, we do not find that any error rises to the level warranting reversal under
RCr 10 .26 .
Ill .
Appellant next alleges that the trial court erred by allowing improper victim impact
testimony from Joe Wills' two adopted children . He argues that KRS 532 .0553 and KRS
421 .5004 preclude minors from offering victim impact testimony . However, while
Appellant claims this issue is preserved, a review of the record indicates otherwise .
During the sentencing phase, the Commonwealth called Paige and James Wills,
the minor adopted children of Joe Wills. Appellant objected to the testimony on the
grounds that it was unclear whether the children were, in fact, legally adopted .
Defense counsel specifically agreed to the testimony upon verification of adoption .
Thus, the question of whether the children were "victims" within the context of the
statutes was not presented to the trial court and will not be reviewed by this Court .
Appellant cannot "feed one can of worms to the trial judge, and another to the appellate
court ." Kennedy v. Commonwealth , Ky ., 544 S.W .2d 219, 222 (1976) . See also Gabow
v. Commonwealth , Ky ., 34 S.W.3d 63 (2000) ; Rupee v. Commonwealth , Ky., 821
S.W.2d 484 (1991) . Suffice it to say that a review of the children's very limited
testimony supports the conclusion that error, if any, was harmless .
IV.
Finally, Appellant takes issue with the fact that the trial court imposed a $1,000
fine during sentencing despite the fact that it waived court costs on the grounds he was
KRS 532 .055(2)(a)(7) permits evidence of "[t]he impact of the crime upon the victim,
as defined in KRS 421 .500, including a description of the nature and extent of any
physical, psychological, or financial harm suffered by the victim" to be offered during
sentencing .
4 KRS 421 .500 defines a victim as : "an individual who suffers direct or threatened
physical, financial, or emotional harm as a result of the commission of a . . . criminal
homicide . . . . If the victim is a minor or legally incapacitated, `victim' means a parent,
guardian, custodian or court-appointed special advocate."
10
a "poor person." The trial court imposed the fine pursuant to KRS 534 .030, which
provides, in relevant part :
(1) Except as otherwise provided for an offense defined outside this code,
a person who has been convicted of any felony shall, in addition to any
other punishment imposed upon him, be sentenced to pay a fine in an
amount not less than one thousand dollars ($1,000) and not greater
than ten thousand dollars ($10,000) or double his gain from
commission of the offense, whichever is greater.
(4) Fines required by this section shall not be imposed upon any person
determined by the Court to be indigent pursuant to KRS Chapter 31 .
Subsection (2) requires that "the court shall consider" certain factors to determine the
amount of any fine imposed .
The final judgment and sentence reflects that court costs were waived due to
Appellant having been found to be a "poor person" which is defined under KRS
453.190(2), as "a person who is unable to pay the costs and fees of the proceeding in
which he is involved without depriving himself or his dependent of the necessities of life,
including food, shelter, or clothing ." However, KRS 31 .100(3) defines an "indigent
person" as "(a) a person eighteen (18) years of age or older . . . who, at the time his
need is determined, is unable to provide for the payment of an attorney and all other
necessary expenses of representation ." Thus, being a poor person does not
necessarily impact the imposition of a fine under KRS 534 .030 if the defendant does not
also meet the definition of an indigent person under Chapter 31 .
Appellant's reliance on Simpson v . Commonwealth , Ky., 889 S .W.2d 781 (1994),
is misplaced . Therein, this Court specifically noted :
Pursuant to the statute, the judge must independently determine
the appropriateness of any fine, and if so, the appropriate amount and
method of payment thereof. In so doing, the judge must also consider
whether the appellant is indigent . In this connection, we observe that at
sentencing in this case, the appellant was represented by an assistant
public advocate . Thus, we may assume that the trial judge had already
determined that the appellant was indigent.
Id. at 784 . Unlike the defendant in Simpson , Appellant was represented by private
counsel throughout his trial and sentencing. Further, no affidavit of indigency appears
in the record until Appellant filed his notice of appeal and motion to proceed in forma
pauperis .
Although the trial court referred to Appellant as "indigent" during the sentencing
hearing, we are of the opinion that such was poor wording rather than a legal finding .
Therefore, even though the trial court exercised its discretion in waiving the $100 court
costs, it was not authorized to waive the $1,000 mandatory fine established by KRS
534.030 . No error occurred .
The judgment and sentence of the Bath Circuit Court are affirmed .
All concur .
COUNSEL FOR APPELLANT
Donna L. Boyce
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE
Gregory D . Stumbo
Attorney General
William Robert Long
Assistant Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.