DEMOND T. BROWN V. COMMONWEALTH OF KENTUCKY
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RENDERED : JUNE 16, 2005
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2003-SC-0235-MR
DEMOND T. BROWN
DDATE y
APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE JOHN L. ATKINS, JUDGE
02-CR-76
V
COMMONWEALTH OF KENTUCKY
AND
APPELLEE
2003-SC-0716-TG
DEMOND BROWN
V
APPELLANT
-
APPELLANT
TRANSFER FROM COURT OF APPEALS
2003-CA-1904
CHRISTIAN CIRCUIT COURT
02-CR-76
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE COOPER
AFFIRMING
On the night of January 15, 2002, in Hopkinsville, Kentucky, Appellant, Demond
T. Brown, drove his Ford Crown Victoria automobile into an intersection against a red
G
light and collided with another automobile operated by Debra Conklin and also occupied
by Conklin's teenage daughter, Megan . Timothy Brown and Laticia Leavell, passengers
in Appellant's vehicle, were injured as a result of the collision ; Debra and Megan Conklin
were killed . Appellant was subsequently convicted by a Christian Circuit Court jury of
two counts of wanton murder, KRS 507.020(1)(b), and two counts of wanton
endangerment in the first degree, KRS 508.060 . He received sentences of twenty years
imprisonment for each murder conviction and one year imprisonment for each wanton
endangerment conviction, all to run concurrently for a total of twenty years . He appeals
to this Court as a matter of right, Ky . Const. § 110(2)(b), asserting three claims of
reversible error, viz: (1) denial of his motion for a directed verdict of acquittal on the
wanton murder charges ; (2) failure to grant him a new trial due to alleged juror
misconduct; and (3) improper redirect examination and closing argument by the
prosecutor. Finding no error, we affirm the judgment of the trial court.
I. SUFFICIENCY OF THE EVIDENCE .
On a motion for a directed verdict of acquittal, all fair and reasonable inferences
are drawn in the Commonwealth's favor. Commonwealth v. Benham , 816 S.W.2d 186,
187 (Ky. 1991) . On appellate review, we determine whether, under the evidence
viewed as a whole, it would be clearly unreasonable for a jury to find the defendant
guilty . Commonwealth v. Sawhill , 660 S .W.2d 3, 5 (Ky. 1983) . There was undisputed
testimony establishing that, on the night in question, Appellant and his brother picked up
Leavell from the Meritor factory when her work shift ended at approximately 10 :00 p .m .
Appellant had two television monitors mounted in his automobile, one on the automatic
transmission gearshift, and the other in the passenger-side dashboard . Appellant left
the Meritor factory, turned onto Pembroke Road, and traveled toward the point where
Pembroke Road intersected with the Martin Luther King, Jr. Bypass, where the fatal
crash took place. There was evidence from which the jury could infer that Appellant
was driving at a rate of speed between five and fifteen miles per hour over the fifty-five
miles per hour speed limit.
Michael Kaylor was also employed at the Meritor factory. He left the factory at
the same time as Appellant, but in a separate vehicle . There was evidence at trial that
Kaylor and Appellant briefly traveled side-by-side at a high rate of speed . The record
also shows that Kaylor changed lanes upon approaching a Monte Carlo automobile
from the rear, and continued traveling at a high rate of speed approximately one carlength behind Appellant's vehicle . Kaylor testified that he slowed his vehicle to turn off
of Pembroke Road onto the Bypass immediately before the crash took place.
Adrian Thomas, the driver of the Monte Carlo, testified that the two cars passed
by him "like [he] was sitting still ." Kelvin Quick, Thomas's passenger, observed that one
of the television monitors in Appellant's vehicle was in operation as the vehicle
approached the intersection . Although Leavell and Timothy Brown both testified that
the monitor was off when the collision occurred, they did not agree as to when it had
been turned off . Based on Quick's testimony, the jury was entitled to infer that the
monitor was on .
As Appellant approached the intersection, he saw that the traffic light in his
direction was red . Nevertheless, he did not slacken his speed, believing that he could
"time" the red light, i .e . , that the light would change in his favor before he entered the
intersection . Appellant admitted and it is undisputed that the light was still red when he
entered the intersection and that he never applied his brakes. Jennifer Kaeferle, who
was waiting with her husband at the red light on the opposite side of the intersection,
testified that her husband observed Appellant's vehicle and Conklin's vehicle
approaching the intersection at the same time and remarked that a collision was about
to occur . Kaylor, who was preparing to turn right somewhere behind Appellant's
vehicle, also testified that he saw the vehicles approaching each other and knew that a
collision was imminent. There was no evidence adduced at trial indicating that either
Appellant or his passengers ever saw the Conklin vehicle . The inference that Appellant
did not see the impending collision was reinforced by the fact that his vehicle left no skid
marks on the road prior to the point of impact.
Although Kaylor saw the accident occur, he immediately left the scene, drove
home, changed vehicles, and then drove back to the scene of the accident. Kaylor
testified that he never spoke to any officer at the scene. Based on the events of the
night, Kaylor was charged with one count of wanton endangerment, and he entered an
Alford plea' on the morning of Appellant's trial . The Commonwealth called Kaylor to
testify during its case-in-chief and, during redirect examination, the prosecutor elicited
testimony about the plea. On recross examination, Appellant's counsel asked Kaylor
what he had done wrong. Kaylor responded, "As far as I was concerned, I didn't do
anything wrong, but it got started somehow that I was racing, when I in fact wasn't."
"A person is guilty of murder when : . . . (b) Including, but not limited to, the
operation of a motor vehicle under circumstances manifesting extreme indifference to
human life , he wantonly engages in conduct which creates a grave risk of death to
another person and thereby causes the death of another person ." KRS 507.020
(emphasis added). KRS 501 .020(3) defines "wantonly," as follows:
' Referencing the Supreme Court's decision in Alford v. North Carolina, 400 U .S . 25, 91
S .Ct. 160, 27 L.Ed.2d 162 (1970), an " Alford plea" permits a defendant to maintain his
innocence yet consent to the conviction and imposition of penalty . Id. at 36-37, 91 S .Ct.
at 167.
4
A person acts wantonly with respect to a result or to a circumstance
described by a statute defining an offense when he is aware of and
consciously disregards a substantial and unjustifiable risk that the result
will occur or that the circumstance exists . The risk must be of such a
nature and degree that disregard thereof constitutes a gross deviation
from the standard of conduct that a reasonable person would observe in
the situation .
(Emphasis added.)
Of course, to be convicted of wanton murder under KRS 507.020(1)(b), Appellant
must have had a more egregious mental state than mere wantonness .
As explained in the Commentary accompanying the Penal Code . . . the
culpable mental state defined in KRS 501 .020 as wantonness . . . without
more, will suffice for a conviction of manslaughter in the second degree
but not for murder because, to qualify as murder, a capital offense, it must
be accompanied by further circumstances manifesting extreme
indifference to human life .
McGinnis v. Commonwealth , 875 S .W.2d 518, 520 (Ky. 1994) (internal citations and
quotations omitted), overruled on other grounds by Elliott v. Commonwealth , 976
S.W .2d 416, 422 (Ky. 1998) . It is the element of "extreme indifference to human life"
that elevates wanton homicide to the same level of culpability as intentional homicide .
"There is a kind of [wanton] homicide that cannot fairly be distinguished
. . . from homicides committed [intentionally] . [Wantonness] . . .
presupposes an awareness of the creation of substantial homicidal risk, a
risk too great to be deemed justifiable by any valid purpose that the actor's
conduct serves. Since risk, however, is a matter of degree and the
motives for risk creation may be infinite in variation, some formula is
needed to identify the case where [wantonness] should be assimilated to
[intention]. The conception that the draft employs is that of extreme
indifference to the value of human life . The significance of [intention] is
that . . . it demonstrates precisely such indifference . Whether
Lwantonness] is so extreme that it demonstrates similar indifference is not
a question that, in our view, can be further clarified; it must be left directly
to the trier of facts ."
KRS 507 .020 (1974 cmt .) (quoting Model Penal Code § 201 .2 cmt. 2 (Tentative Draft
No. 9, 1959)) (emphasis added). See also Nichols v. Commonwealth , 657 S.W .2d 932,
935 (Ky. 1983) .
We have held that there was sufficient evidence to support a finding of this
mental state, sometimes referred to as "aggravated wantonness," Graves v.
Commonwealth , 17 S .W.3d 858, 863 (Ky. 2000), in a number of cases involving
unintentional vehicular homicides. In Hamilton v . Commonwealth , 560 S .W .2d 539 (Ky.
1977), we held that the evidence was sufficient where the defendant, while under the
influence of alcohol, drove his vehicle at a rate exceeding the speed limit and entered
an intersection against a red light. Id. at 543 . In Walden v. Commonwealth , 805
S .W .2d 102 (Ky. 1991), overruled on other grounds by Commonwealth v. Burge , 947
S .W.2d 805, 811 (Ky. 1996), we upheld a wanton murder conviction where the
defendant lost control of his vehicle and crossed the center line while operating his
vehicle while under the influence of alcohol and at a high rate of speed . Id . at 105 .
In
Estep v . Commonwealth , 957 S.W.2d 191 (Ky . 1997), we held that the evidence was
sufficient where the defendant operated a motor vehicle at a high rate of speed after
ingesting five different prescription drugs, one of which had debilitating effects of which
she was aware, crossed the center line to pass another automobile in a no-passing
zone, failed to return her vehicle to the proper lane, and caused a fatal collision. Id. at
193 . In Love v. Commonwealth , 55 S.W.3d 816 (Ky. 2001), we held the evidence
sufficient where the defendant was speeding, was intoxicated, and did not slow down or
attempt to stop upon seeing a police car blocking the road but attempted to swerve
around the police car while traveling a reported seventy to ninety miles per hour . Id . at
827. In Cook v. Commonwealth , 129 S.W.3d 351 (Ky. 2004), we held the evidence
sufficient where the defendant was intoxicated, admitted he was aware of the risk of
driving while intoxicated, and lost control of his vehicle while operating it at a high rate of
speed because he wanted to show his passenger "what his car had." Id . at 362-63 .
While the defendant in each of the preceding cases was impaired by an
intoxicating substance, intoxication is not a prerequisite to a finding of extreme
indifference to human life in a vehicular homicide case . The Commentary to KRS
507.020 is instructive as to what type of conduct might constitute aggravated
wantonness : "Typical of conduct contemplated for inclusion in 'wanton' murder is:
shooting into a crowd, an occupied building or an occupied automobile ; placing a time
bomb in a public place; or derailing a speeding locomotive ." KRS 507.020 (1974 cmt.).
Each of these examples involves an activity that poses a high risk to human life,
undertaken in or directed toward a place where human beings are present; yet none of
them requires intoxication . In other words:
Setting this conduct apart from behavior that would not warrant an
unintentional murder conviction are the following characteristics : (i)
homicidal risk that is exceptionally high; (ii) circumstances known to the
actor that clearly show awareness of the magnitude of the risk; and (iii)
minimal or non-existent social utility in the conduct . Such conduct plainly
reflects more than mere awareness and conscious disregard of a
substantial and unjustifiable risk of death . It manifests a high disregard for
life and evinces what the common law chose to call a depravity of mind or
heart.
Brown v. Commonwealth , 975 S .W.2d 922, 924 (Ky. 1998) (quoting Robert G . Lawson
& William H. Fortune, Kentucky Criminal Law, § 8-2(c)(2), at 322 (1998)) .
The homicidal risk of entering an intersection against a red light at a high rate of
speed is obviously high. Not every intersection is regulated by a red light. Presumably,
such traffic control devices are installed at intersections where there is a high volume of
traffic and for the purpose of preventing vehicles approaching from perpendicular
directions from simultaneously entering the intersection and colliding. Appellant was
aware of the magnitude of the risk. He admitted on cross-examination that he knew the
light was red as he approached the intersection and that by entering the intersection
against the red light, he disregarded the risk that another vehicle would be driving
through the intersection at the same time. Appellant also admitted that he was aware of
the risk that a resulting collision might kill the occupants of another vehicle . Finally, the
social utility of Appellant's driving his vehicle into the intersection against the red light
was nonexistent. He offered no excuse for his conduct. He was not,,eq rushing a
.,
dying person to a hospital .
"Extreme indifference to human life" is also an element of the offense of wanton
endangerment in the first degree . KRS 508 .060(1) . We recently held in Ramsev v.
Commonwealth , 157 S.W.3d 194 (Ky. 2005), that a person acted under circumstances
manifesting extreme indifference to human life by operating a motor vehicle while
intoxicated with a passenger in the vehicle when, though he did not violate any statute
other than KRS 189A .010(1), he also was observed accelerating away from a stop sign
at a higher than normal rate of speed, and when signaled by a police officer to pull over,
he turned off his lights before stopping . Id . at 198. Obviously, Appellant's conduct in
this case exhibited a higher level of extreme indifference to the value of human life than
that exhibited in Ramsev. Even if Appellant did not intend to run the red light, he was
aware of and intentionally disregarded the risks that the light would not change in his
favor before he entered the intersection, that if he ran the red light he might collide with
another vehicle, and, if so, that persons might be killed .
Appellant points out that there was no evidence that he actually saw the Conklin
vehicle as he approached the intersection . However, there was substantial evidence
that the Conklin vehicle was readily visible to the other drivers on Pembroke Road,
including Kaylor, and evidence from which the jury could infer that the reason Appellant
failed to see it was because he was watching television instead of the approaching
traffic.
Appellant argues that if this evidence is sufficient to support a wanton murder
conviction, then every traffic violation will be converted into a charge of wanton
endangerment, as any violation will necessarily involve extreme indifference to human
life . We disagree . In Johnson v. Commonwealth , 885 S .W .2d 951 (Ky. 1994), we held
mere evidence that the defendant entered an intersection against a red light to be
insufficient to support a wanton murder conviction . Id. at 953 ("Evidence was
introduced . . . that he may have run a red light."). There was no other evidence of
improper driving or conduct on the defendant's part . Id. See also Commonwealth v.
Mitchell , 41 S.W.3d 434, 435 (Ky. 2001) (mere failure to secure infant in child restraint
system in violation of KRS 189 .125(3) insufficient to support even a reckless homicide
conviction). Appellant's conduct was substantially more than a mere traffic violation . In
addition to driving at a rate exceeding the speed limit and violating a traffic signal, there
was substantial evidence that Appellant was watching television rather than monitoring
the traffic at the intersection and that he attempted to "time" the traffic light despite the
fact that it remained red at all times during his approach . Moreover, from the testimony
regarding the manner in which Appellant and Kaylor operated their vehicles and
Kaylor's unusual conduct after the collision, the
jury
could reasonably have inferred that
Appellant and Kaylor were racing during the period immediately preceding the collision
and that Appellant ran the red light to "outrun" Kaylor, not realizing that Kaylor had
slowed down to turn onto the Bypass. While the evidence was by no means
overwhelming on these points, we cannot say as a matter of law that it was
unreasonable for the
jury
to believe beyond a reasonable doubt that Appellant acted
under circumstances manifesting extreme indifference to human life . Nichols , 657
S .W .2d at 935 .
II . ALLEGED JUROR MISCONDUCT.
Appellant claims the trial judge erred in overruling his motion for a new trial. The
motion was premised upon allegations of juror misconduct supported by an affidavit
sworn by Juror 25 and a newspaper article in the Louisville Courier-Journal quoting
Jurors 4, 22, and 25. Appellant alleges that his rights to a fair trial and impartial jury
were prejudiced when the jury improperly considered extrajudicial evidence during its
deliberations, and when at least one juror withheld material information during voir dire .
We review the trial court's denial of Appellant's new trial motion for abuse of discretion .
Jillson v. Commonwealth , 461 S.W.2d 542, 545 (Ky. 1970).
A . Extraiudicial evidence .
In his affidavit, Juror 25 reported that another juror, whose name he did not
recall, told the jury during deliberations that he had heard a rumor in the community that
Appellant and Kaylor were racing as they approached the intersection of Pembroke
Road and the Martin Luther King, Jr. Bypass. In the aforementioned newspaper article,
Juror 22 questioned why Kaylor would have left the scene of the accident and later
entered the Alford plea if he had been telling the truth about the racing allegations . The
article also quoted Juror 4 as stating his belief that Kaylor and Appellant had been
racing and Juror 25 reiterating his allegation that an unidentified juror had mentioned
rumors of racing during deliberations. The trial judge held an evidentiary hearing at
which Appellant was afforded the opportunity to present additional evidence of juror
misconduct, but Appellant relied solely upon Juror 25's affidavit and the newspaper
article .
"A juror cannot be examined to establish a ground for a new trial, except to
establish that the verdict was made by lot." RCr 10 .04. We have adhered to the longstanding rule that juror testimony is generally incompetent to impeach a verdict. See,
e .g., Gall v. Commonwealth, 702 S.W .2d 37, 44 (Ky. 1985) (juror's testimony that jury
improperly considered defendant's mental illness and parole eligibility during
deliberations was incompetent) ; Grace v. Commonwealth , 459 S .W.2d 143 (Ky. 1970)
(juror's affidavit swearing that she did not agree to the verdict was incompetent) ; Jones
v. Commonwealth, 450 S .W.2d 812, 814 (Ky. 1970) (juror's affidavit swearing that jurors
considered matters not in evidence during deliberations was incompetent) .
In Doan v. Brigano , 237 F.3d 722 (6th Cir. 2001), abrogated on other grounds as
recognized bv Maples v. Stegall , 340 F .3d 433 (6th Cir. 2003), the United States Court
of Appeals for the Sixth Circuit held an interpretation of Ohio Rule of Evidence 606(B)
that precluded consideration of an affidavit attesting to improper outside influence on
the jury to be contrary to clearly established United States Supreme Court precedent.
Id. at 731 . Appellant contends that Juror 25's affidavit and statements to the CourierJournal demonstrate that his jury was subjected to such an outside influence. We
disagree . Kaylor testified at trial, "it got started somehow that I was racing, which I
wasn't . I don't know where it came from ." A reasonable interpretation of this testimony
is that there were rumors that he and Appellant had been racing . According to Juror 25,
the unidentified juror stated only that he had heard the rumors that the two had been
Hearsay is generally inadmissible as evidence in support of a motion for new trial .
See KRE 1101 (b) and (d) ; Brown v. Commonwealth , 490 S .W .2d 731, 732 (Ky. 1973) .
Nevertheless, because the Commonwealth failed to object to the use of this evidence,
we will address the merits of Appellant's claims .
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racing as they approached the intersection . The unidentified juror did not vouch for the
credibility of the rumors or supplement Kaylor's trial testimony in any way. This stands
in sharp contrast with Doan, where the juror in question "conducted an out-of-court
experiment and reported her findings to the jury in the manner of an expert witness ." Id .
at 733. See also Parker v. Gladden , 385 U .S. 363, 363-64, 87 S.Ct. 468, 470, 17
L.Ed .2d 420 (1966) (bailiff told the jury during deliberations that the defendant was a
"wicked fellow," that he was guilty, and that any error in finding the defendant guilty
would be corrected by the Supreme Court) ; Mattox v. United States , 146 U .S . 140, 14243, 13 S.Ct . 50, 51-52, 36 L.Ed . 917 (1892) (bailiff made inappropriate remarks to the
jurors regarding the defendant's guilt and informed them that this was the third man he
had killed; also, newspaper article that commented on the strength of the evidence
against the defendant was brought into the jury room and read aloud in the presence of
the jury) ; Ne Camp v. Commonwealth , 311 Ky. 676, 225 S .W.2d 109, 111-12 (1949)
(one juror told another during deliberations that she had sought the advice of a priest
who advised her that it would not be a sin to impose the death penalty) .
Juror 25's affidavit contains no evidence of outside influence, but only that a juror
had heard elsewhere about a matter that was also mentioned during trial testimony .
Nor are the other jurors' statements cited by Appellant evidence of outside influence.
Each of these statements is merely a response to an inference of racing that could
reasonably be drawn from the evidence presented at trial . Therefore, because these
juror statements do not establish improper outside influence upon the jury, they cannot
be considered for the purpose of impeaching the verdict. Jones, 450 S .W.2d at 814.
3
Appellant also argues that the jury's alleged discussion of these rumors ran afoul of
the "appearance of evil" doctrine . See, e.g ., Young v. State Farm Mut. Auto. Ins. Co. ,
975 S .W .2d 98, 99-100 (Ky. 1998) ; Dillard v. Ackerman , 668 S .W.2d 560, 563 (Ky. App.
-12-
B. -Withholding information durincl voir dire.
Appellant claims that his right to an impartial jury was violated when at least one
juror withheld material information during voir dire . He argues that the affidavit and the
newspaper article prove that a juror or jurors knew of the rumors about racing before
trial and withheld that information when the trial court asked the following question
during voir dire : "Does anyone have any knowledge as to the facts and circumstances
of this case?"
It is well settled that "[t]o obtain a new trial because of juror mendacity, 'a party
must first demonstrate that a juror failed to answer honestly a material question on voir
dire, and then further show that a correct response would have provided a valid basis
for a challenge for cause."' Adkins v. Commonwealth , 96 S .W.3d 779, 796 (Ky. 2003)
(quoting McDonough Power Equip., Inc. v. Greenwood, 464 U .S . 548, 556, 104 S .Ct .
845, 850, 78 L.Ed .2d 663 (1984)) . The evidence cited by Appellant falls short of
meeting this standard . For example, in Paenitz v. Commonwealth , 820 S.W.2d 480 (Ky.
1991), we remanded for a new trial where there was evidence, to prove that a juror
withheld the fact that she had discussed the details of the case with the government's
expert witness prior to trial . Id. at 481 . In contrast, Juror 25's statements, if taken as
true, do not indicate that the unidentified juror had knowledge of the facts and
circumstances of Appellant's case; indeed, the only allegation was that the unidentified
juror had heard rumors. If this did actually occur, we can only speculate as to the
amount and substance of these rumors, given the threadbare allegations set forth by
Appellant .
1984) . This doctrine has usually been applied where actual prejudice is difficult to
prove, but there has always been readily provable patently improper conduct on the part
of an actor in a position to influence the jury. In the case sub judice , Appellant is not
only unable to establish prejudice ; he also has fallen short of showing improper conduct .
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In circumstances where no challenge is made to juror qualification
prior to or during trial and the challenge first occurs after rendition of a
verdict, a party seeking relief from the effect of the verdict bears a heavy
burden . It is incumbent upon such a party to allege facts, which if proven
to be true, are sufficient to undermine the integrity of the verdict .
Gordon v. Commonwealth , 916 S.W .2d 176, 179 (Ky. 1995) . In light of the speculative
nature and paper-thin credibility4 of Appellant's allegations, we hold that the trial court
did not abuse its discretion in overruling Appellant's motion for a new trial . Cf . Key v.
Commonwealth, 840 S.W.2d 827, 830 (Ky. App . 1992) (jury verdict affirmed where
defendant failed to elicit testimony from juror in question and the only evidence offered
showed nothing more than speculation that juror was biased) .
III . UNPRESERVED ISSUES.
During an in-chambers hearing before Appellant's trial began, the prosecutor
informed the court and defense counsel that "even if [Kaylor and Appellant] were racing,
the race would have ended when Kaylor gets ready to turn [off of Pembroke Road]," and
that the evidence would therefore not show that they were racing through the
intersection where the collision took place . The prosecutor also stated that while Kaylor
would testify about the manner in which he and Appellant were driving, he would not
testify that the two were racing . Indeed, Kaylor never testified that he was racing with
Appellant . During Kaylor's direct and cross-examinations, no mention was made of the
racing rumors in the community . On redirect examination, the prosecutor asked Kaylor
if he had entered a guilty plea in response to a wanton endangerment charge, and
4 The Department of Public Advocacy conducted telephone interviews with several
jurors and had a hearing at which Appellant had the opportunity to present witnesses in
support of his new trial motion . Despite all of this, the only sworn statement Appellant
ever presented was Juror 25's hearsay allegation, which never identified its declarant .
Appellant could have subpoenaed all of the jurors to the hearing so that Juror 25 could
identify the declarant who could then be questioned about the nature and extent of the
information he allegedly withheld .
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Kaylor answered that he had entered an Alford Plea . On recross, defense counsel
followed up this inquiry by asking Kaylor what he had done to merit the wanton
endangerment charge. Kaylor responded, "As far as I was concerned, l didn't do
anything wrong, but it got started somehow that I was racing, when I in fact wasn't . i
really don't know where it came from ." Appellant concedes that he did not object to the
prosecutor's inquiry, but he seeks review for palpable error on grounds that the
prosecutor should not have been permitted to elicit new evidence on redirect
examination . Accordingly, we review for manifest injustice . RCr 10 .26.
As a general rule, redirect examination should be limited to questions explaining
matters that have been developed on cross-examination . Esc ., White v.
Commonwealth, 292 Ky. 416, 166 S.W .2d 873, 877 (1942). Nevertheless, "[t]rial courts
have always had substantial discretion to allow departure from these norms. . . . The
language of KRE 611(a), giving trial judges 'reasonable control over the mode and order
of interrogating witnesses,' is consistent with the wide discretion trial courts have always
had over the nature and scope of redirect and recross examination ." Robert G . Lawson,
The Kentucky Evidence Law Handbook, § 3.20[5], at 245 (4th ed. LexisNexis 2003)
(quoting KRE 611(a)) (internal footnotes omitted) . Given the trial court's wide discretion
to allow this inquiry, and the fact that the testimony was otherwise admissible as
impeachment evidence, Appellant suffered no manifest injustice from its admission.
Appellant also claims that the trial court committed palpable error by permitting
the prosecutor to engage in misconduct during his closing argument. In considering
alleged prosecutorial misconduct during closing argument, we review to determine
5 Appellant does not assert that it was error for the Commonwealth to elicit this
evidence as substantive evidence of his own guilt. See Tipton v. Commonwealth , 640
S .W.2d 818, 820 (Ky. 1982) ; Parido v . Commonwealth , 547 S.W .2d 125, 126 (Ky.
1977) .
15
"whether the conduct was of such an 'egregious' nature as to deny the accused his
constitutional right of due process of law." Slaughter v. Commonwealth , 744 S.W .2d
407, 411 (Ky. 1987) . Appellant bases his first allegation of prosecutorial misconduct
upon a comparison of the prosecutor's pretrial representations, noted above, with
statements in his closing argument in which he invited the jury to draw an inference that
Appellant and Kaylor were racing at some point during the events leading up to the
collision. In closing argument, "[i]t is the duty of the prosecuting attorney to confine
himself to the facts in evidence and fair inferences that may be drawn therefrom ."
Williams v. Commonwealth , 644 S .W .2d 335, 338 (Ky. 1982). While no witness in the
case sub judice explicitly testified that Appellant was racing with Kaylor, there was
evidence adduced at trial that supported an inference that Appellant and Kaylor were
racing one another before Kaylor slowed his vehicle to turn off of Pembroke Road . The
prosecutor relied on this evidence as an illustration of the general manner in which
Appellant was operating his vehicle during the time leading up to the collision, arguing:
"Is racing an issue here? I don't know . Is driving fast an issue? Absolutely." The
prosecutor's closing argument was not inconsistent with his pretrial representations, as
Kaylor did not testify that he and Appellant were racing . However, admissible evidence
heard by the jury supported that inference, and the prosecutor's pretrial statements
were not misleading ; thus, Appellant suffered no manifest injustice from this part of the
Commonwealth's closing argument .
Finally, Appellant asserts palpable error arising from a portion of the closing
argument in which the prosecutor stated, "Kaylor pled guilty to first-degree wanton
endangerment for operating his vehicle in the manner he did." Appellant argues that
this statement constituted both bolstering of Kaylor's testimony and an improper
- 1 6-
characterization of Kaylor's Alford plea. Both claims are meritless . Nothing in the
statements cited by Appellant indicates that the prosecutor vouched for the credibility of
Kaylor's testimony. Compare Armstrong v. Commonwealth , 517 S.W.2d 233, 236 (Ky.
1974) (prosecutor's closing argument was improper bolstering where he told jury that he
had known and worked with witness for a long time and that witness was honest and
conscientious) . Moreover, the prosecutor committed no misconduct in referring to the
Alford plea as a guilty plea. See Alford , 400 U .S . at 37, 91 S .Ct. at 167 ("the
Constitution is concerned with practical consequences, not the formal categorizations,
of state law") . Furthermore, "[a]n Alford plea is a 'plea of guilty,' regardless of any denial
of underlying facts . . . ." Pettiway v. Commonwealth , 860 S.W.2d 766, 767 (Ky . 1993) .
No manifest injustice resulted from this reference.
Accordingly, the judgment of convictions and the sentences imposed by the
Christian Circuit Court are AFFIRMED .
Lambert, C.J. ; Cooper, Graves, Johnstone, Scott, and Wintersheimer, JJ ., sitting.
Lambert, C.J . ; Graves, Johnstone, and Wintersheimer, JJ., concur. Scott, J ., concurs in
part and dissents in part by separate opinion .
COUNSEL FOR APPELLANT :
Lisa Bridges Clare
Assistant Public Advocate
Department of Public Advocacy
3rd Floor
100 Fair Oaks Lane
Frankfort, KY 40601
COUNSEL FOR APPELLEE :
Gregory D. Stumbo
Attorney General
Room 118
State Capitol
Frankfort, KY 40601
Todd D . Ferguson
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
RENDERED : JUNE 16, 2005
TO BE PUBLISHED
,*uyrrmr Courf of ' rnfurkV
2003-SC-0235-MR
DEMOND T. BROWN
V.
APPELLANT
APPEAL FROM CHRSTIAN CIRCUIT COURT
HON . JOHN L. ATKINS, JUDGE
02-C R-76
COMMONWEALTH OF KENTUCKY
AND
2003-SC-0716-TG
DEMOND BROWN
V.
APPELLEE
APPELLANT
TRANSFER FROM COURT OF APPEALS
2003-CA-1904
CHRISTIAN CIRCUIT COURT
02-C R-76
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION BY JUSTICE SCOTT CONCURRING IN PART AND
DISSENTING IN PART
While I agree with the majority on the issues of "alleged juror misconduct"
and "unpreserved issues," I respectively dissent on the sufficiency of the
evidence to support the "wanton murder" charges .
"In our dedication to severely punish . . .drivers who kill, a dedication which
I share, we have grown indifferent to the difference between murder and
manslaughter, an indifference which I do not share ." Bush v. Commonwealth ,
839 S .W .2d 550, 558 (Ky . 1992) . (Leibson, J., dissenting) . "I concede that fatal
carelessness in the operation of a motor vehicle calls for stern punishment, but
murder is something else. There simply is a difference in culpability between
committing an act that endangers people whose presence is known and an act
that endangers people whose presence should be anticipated, but in fact is not
known ." Hamilton v. Commonwealth , 560 S.W.2d 539, 544 (Ky. 1978), (Palmore,
C .J ., dissenting) .
In this case, Demond Brown "[d]oes not fit the description of [a] wanton
murderer absent further circumstances indicating a heedless disregard for
victims he is consciously aware of." Bush. supra, (Leibson, J ., dissenting) . "By
virtue of the . . . opinion in this case . . . the distinction between wanton murder and
reckless homicide will be lost." Ester) v. Commonwealth , 957 S.W.2d 191,194
(Ky. 1997) (Lambert, C.J ., dissenting) . Why?
Around 10 :00 p .m ., on January 15, 2002, 19 year old Demond Brown
(Brown) was returning home with his younger brother and girlfriend. He had just
picked up his girlfriend, Laticia Leavell, from her job at Meritor in Hopkinsville,
Kentucky, where he also worked. Leaving the Meritor parking lot, he pulled out
on Pembroke road, which is a four-lane highway with a speed limit of 55 miles
per hour .
He then traveled six-tenths of a mile from the parking lot to the
intersection of Pembroke and Martin Luther King Jr. Parkway (the By-Pass) .
Credible evidence, both from witnesses, as well as the investigating
officers, established his speed on Pembroke road between 60 and 65 miles per
hour. Then, as he approached the intersection, he saw he had a red light. He
took his foot off of the gas peddle, but then glanced over and saw what he
thought was the opposing lights go yellow to red. Mistakenly believing his light
would now turn green, he drove on into the intersection .
In fact, his light
remained red and he struck another car, killing Debra Conklin and her daughter,
Megan .
The majority concedes there was no evidence introduced at trial indicating
either Brown, or his passengers, ever saw Ms . Conklin's vehicle and that the
"[i]nference that Brown did not see the impending collision was reinforced by the
fact that his vehicle left no skid marks on the road prior to the point of impact."
Moreover, all parties concede no drugs or alcohol were involved .
Yet, Brown was convicted of two counts of "wanton murder" and two
counts of wanton endangerment, 1 St degree, and was sentenced to 20 years
each on the wanton murders and 1 year each on the wanton endangerments, all
to run concurrently for a total of 21 years . Pursuant to KRS 439.3401(3), he will
not be eligible for. parole until he has served 17 years of his sentence . ' He will
then be near 40 years old. Prior to this tragic event, he had a job, owned a car
and was never in trouble, other than a couple of traffic tickets .
Evidence at trial suggested (but never said) Brown was racing with
Michael Kaylor (Kaylor) just prior to running the red light. Kaylor also worked at
' In contrast, Larry Mahoney, drove into a bus going the wrong way in a drunken stupor,
killing twenty-seven people . He was sentenced to 16 years and released on probation
after serving 9 years. Commonwealth v. Mahoney , 1992 WL 5597 (Ky. App .) .
Meritor and had been Brown's supervisor . That night, Kaylor left the factory at
the same time as Brown, but never spoke to Brown .2
According to Kaylor, when he pulled out, he followed Brown down
Pembroke, staying one to two car lengths behind him, traveling "about" 65 miles
per hour. Again, it was six-tenths of a mile from the exit at the Meritor parking lot
to the intersection .
This intersection had a turn lane which was four-hundred
eighty feet long from its beginning up to the intersection . Once he came to the
turn lane, Kaylor turned into it in preparation to turn right on the Martin Luther
King Jr. by-pass, which was the way he drove home from work.
Dewayne Thomas, another Meritor employee left the parking lot at the
same time (10 :00 p .m .) and was immediately passed by both Brown and Kaylor
as they exited out of the parking lot.
sitting
still ."
However,
when
this
He testified "they went by me like I was
comment
was
further
explored,
he
acknowledged he was only 50 feet up to 50 yards from the parking lot exit and
doing 35-40 miles per hour .
Earlier he had indicated he was doing about 50
miles per hour when they went by him . 3 Later he testified, "I seen what they were
doing," but he never said the word racing .
Brown, on the other hand, was driving a 1994 Ford Crown Victoria .
In
fact, it was a former city police cruiser which had actually belonged to Detective
Mayse, the police re-constructionist who testified in the case . Detective Mayse
admitted it had the special engine found in police cars. It doesn't take a rocket
Z
Everyone on the evening shift gets off at 10 :00p.m.
It would indeed be a surprise if one could reasonably accelerate to 50 miles per hour in
50 feet or even 50 yards .
3
scientist to know a police cruiser is capable of doing much more than 60-65 miles
per hour in six-tenths of a mile (from the parking lot to the intersection) . Which
poses the question, were Brown and Kaylor really racing? Or, if they were, they
obviously quit before Kaylor exited to the turn lane and Brown approached the
light at the intersection .
The turning lane started 480 feet prior to the
intersection ; at 88 feet per second, at 60 miles per hour, that's five and one-half
seconds (51/2) from the start of the turn lane to the intersection .
However, for purposes of consideration of this case, let's assume they
were doing some "undefined form of restrained racing" at 60-65 miles per hour
on a 55 mile per hour four-lane, prior to the time Kaylor withdrew and exited to
the turn lane, for his right hand turn .
In contrast to the "suggestion of racing" as the cause of the collision, the
Commonwealth also introduced evidence that Brown's vehicle had two T.V .
screens mounted in the front. One was cut into a hole where the old glove box
would normally be, while the other was suspended near the floor from the
gearshift. These were very small screen T.V .'s but only one worked . There was
no evidence that the T.V . had any capability of playing video movies or accessing
T.V. signals.
Calvin Quick, another Meritor employee and a passenger in the car driven
by Dewayne Thomas, testified that when he walked by Brown's car in the parking
lot, the T.V . was playing .
Brown agreed and testified he and his brother were
playing with their Playstation on the T .V . screen while they were waiting in the
parking lot for Laticia, his girlfriend . Brown, his brother and Laticia were clear
that the one working T.V . screen was not in use when the collision occurred .
Mr. Quick, who Brown passed coming out of the parking lot, at first
believed it was in use when he was passed, but later acknowledged that the
windows were tinted on Brown's vehicle and he could have just seen a blank
blue screen . However, one should recall that Mr. Quick's observation came at a
point either 50 feet or 50 yards from the parking lot at a time when the driver of
his vehicle (Thomas) indicated "they went by me like I was sitting still ." Almost
six-tenths of a mile still remained to the intersection .
So what have we got? A young kid who made a terribly tragic mistake in
thinking his light would turn green and ended up killing two innocent people .
Something he'll regret for the rest of his life . But is he guilty of "wanton murder"
as the majority says, as opposed to being guilty of second degree manslaughter
and/or reckless homicide?
The majority has set out the appropriate standard for reviewing questions
regarding the sufficiency of the evidence . All fair and reasonable inferences are
to be drawn in the Commonwealth's favor.
Commonwealth v. Benham , 816
S.W.2d 186, 187 (Ky. 1991) . But, what inferences are fair and reasonable?
After traveling six-tenths of a mile from the Meritor parking lot, Brown
approached the red light at the intersection of Pembroke and Martin Luther King
Jr . bypass . At this time, or prior thereto, someone in the vehicle may have, or
may not have, been looking at, or playing with, the T.V . screen .
Brown was
driving, his girlfriend was sitting in the front passenger seat, and his brother was
sitting in the back seat. After the accident, the Playstation was in the floor of the
right front passenger compartment where his girlfriend was sitting . It may have
been, or may not have been, in that location prior to the accident. This is where
they were using it in the parking lot.
Brown was driving a former police cruiser with the capability to reach
significant speeds in the six-tenths of a mile from the parking lot to the light at the
intersection . Prior to his approach to the intersection, he may have, or may not
have, been involved in "some form of undefined restrained racing" with Michael
Kaylor; doing 60-65 miles per hour on a four-lane highway with a posted speed
limit of 55 miles per hour. Whether he was, or was not, doing anything in this
regard prior to approaching the intersection, Michael Kaylor turned into a turn
lane to make a right hand turn and that turn lane started four-hundred eighty feet
prior to the intersection . As noted, a vehicle doing 60 miles per hour travels 88
feet per second.
Prior to approaching the intersection, Brown noticed that the light was red
and took his foot off the gas peddle .
As he testified, he then saw what he
thought was the opposing light go from yellow to red, and expecting his light to
turn green, he drove into the intersection . As noted by the majority, there was no
evidence at trial indicating he, or even his passengers, ever saw the Conklin
vehicle. The inference that this was so is reinforced by the fact his vehicle left no
skid marks on the road prior to the point of impact.
The question then becomes whether Brown, under these facts and taking
all reasonable inferences in favor of the Commonwealth, can be guilty of wanton
murder as opposed to second degree manslaughter and/or reckless homicide?
"A person is guilty of murder when : . . . (b) including, but not limited to, the
operation
of a
motor vehicle
under circumstances manifesting
indifference to human life, he wantonly engages in conduct
extreme
which creates a
grave risk of death to another person and thereby causes the death of another
person ." KRS 507.020. Stated in another way, can we say, on these facts,
that a reasonable juror could believe beyond a reasonable doubt that
Appellant's conduct "manifested extreme indifference to human life?"
"This Court has held that a conviction of wanton murder is reserved
exclusively for offenders who manifest virtually no concern for the value of
human life." Johnson v. Commonwealth , 885 S .W.2d 951, 952 (Ky. 1994) ; Kruze
v. Commonwealth , 704 S .W.2d 192 (Ky. 1985) ; Harris v. Commonwealth , 793
S .W. 2d 802 (Ky. 1990) ; Nicolas v. Commonwealth , 657 S .W .2d 932 (Ky. 1983) .
One would presume this reservation is based upon the severity of the
potential sentence . Wanton murder is a Class A felony with a penalty of twenty
years to life . Second degree manslaughter is a Class C felony with a maximum
sentence of ten years . Reckless homicide, the least culpable of the three, has a
maximum penalty of five years in the penitentiary. Moreover, pursuant to KRS
439.3401(3), Capital, Class A and B felonies are generally classified as "violent
offender" offenses, subject to an 85% serve out of the sentence imposed . Class
C and D felonies are not subject to this 85% serve out rule .
The majority's logic to avoid the constraints set out in Johnson , Kruze,
Harris and Nicolas, su ra, is contained in four sentences .
"Appellant's conduct was substantially more than a mere
traffic violation . In addition to driving at a rate exceeding
the speed limit and violating the traffic signal, there was
substantial evidence that Appellant was watching television
rather than monitoring the traffic at the intersection and that
he had attempted to `time' the traffic light despite the fact
that it remained red at all times during his approach .
Moreover, from the testimony regarding the manner in
which Appellant and Kaylor operated their vehicles and
Kaylor's unusual conduct after the collision, the jury could
reasonably have inferred that Appellant and Kaylor were
racing during the period immediately preceding the collision
and that Appellant ran the red light to "outrun" Kaylor, not
realizing that Kaylor had slowed down to turn onto the
bypass .
While the evidence was by no means
overwhelming on these points, we cannot say as a
matter of law that it was unreasonable for the jury to believe
beyond a reasonable doubt that Appellant acted under
circumstances manifesting extreme indifference to human
life ."(Slip opinion p. 9-10) .
Brown was driving at a rate exceeding the speed limit . This was a 55
mile per hour four-lane and the evidence established he was driving 60-65 miles
per hour. In civil cases, we have denied "punitive damages" on accidents
up to ten miles per hour over the speed limit, even when the collision
occurs in the wrong lane . See Kinney v. Butcher , 131 S.W.3d 357 (Ky. App.
2004). "Kinney also alleged that Butcher was traveling 55 miles per hour in a 45
mile per hour zone, . . ." Id. at 358 . We agree with the trial court's assessment of
the circumstances of this case to the effect that traveling at a possible speed of
ten miles per hour in excess of the posted speed limit and failing to complete a
pass before entering a no-passing zone constitute nothing more than ordinary
negligence . Were we to accept Kinney's argument that it amounts to wanton or
reckless disregard for the safety of others, it would effectively eliminate the
distinction between ordinary and gross negligence in the context of automobile
accidents . Nearly all auto accidents are the result of negligent conduct, though
few are sufficiently reckless as to amount to gross negligence, authorizing
punitive damages .
We are of the opinion that punitive damages should be
reserved for truly gross negligence seen in cases such as Shortridge v. Rice , 929
S .W.2d 194 (Ky. App . 1996), Stewart v. Estate of Cooper, 102 S .W.3d 913 (Ky.
2003) and Phelps v. Louisville Water Co . , 103 S.W.3d 46 (KY. 2003) In both
Shortridge and Stewa~rt, the defendant tortfeasors were driving while
intoxicated and in Phelps, the jury was presented with eighteen instances where
Louisville Water Co., misrepresented the dangerous nature of a highway
condition . . ." Id. at 359. And who hasn't driven ten miles per hour over the speed
limit on a four-lane highway on occasion? And he did run a red light. However,
running a red light is insufficient grounds to support a charge of "wanton murder ."
Johnson at 952.
As to the TV, there was absolutely no evidence in this case that Brown
was watching the television on the approach to the intersection .
There was
evidence from Calvin Quick, Dewayne Thomas, and the Appellant that he had
been playing the Playstation (using the T.V . screen), while waiting in the parking
lot for Laticia . Quick also testified he saw it on when they passed him, which was
50 feet to 50 yards from the parking lot and six-tenths of a mile from the
intersection and also at a time when he testified that Brown and Kaylor went by
him "like he was sitting still ." Yet, Quick was traveling in a vehicle doing "about
35 miles per hour" at the time and 50 feet to 50 yards from the starting point (the
parking lot) . And, on cross-examination, he admitted he could have just seen a
blue screen, since Brown's windows were tinted and he could not say there
was a picture on it. Brown and all the other occupants in the vehicle said the
T.V. was off .
Moreover, there was no evidence the T .V. had the capability of
picking up local T.V. stations or had any video feed other than its use to play the
Playstation .
After the accident, the Playstation was in the floor in front of the
passenger seat, which was Laticia's position, not Brown's . But that is also where
his brother was sitting while they were playing the Playstation while waiting on
Laticia in the parking lot.
The majority concurrently suggests, "the jury could reasonably have
inferred the Appellant and Kaylor were racing during the period immediately
preceding the collision and that Appellant ran the red light to `outrun' Kaylor."
How does someone race a "souped up" police car on a 55 mile per hour fourlane while keeping it between 60-65 miles per hour?
Not one person actually
testified they were "racing" as we would understand it. Dewayne Thomas said, "I
seen what they were doing," but if they were "racing," why wasn't the matter
clarified or raised in the evidence? Surely the Commonwealth knew the answer
to the follow-up question that was never asked .
The evidence in this case fairly supports a criminal charge deserving of
penitentiary time, but it is simply not sufficient to establish conduct "manifesting
an extreme indifference to the value of human life," the standard for 20 years to
life .
We can say that! We should say that! And we must say that - on these
facts!
Never before in our jurisprudence have we subjected members of
Kentucky's families to convictions of "wanton murder" on facts as these .
Every case I have reviewed where we have upheld a "wanton murder"
conviction, (or its close-equivalent, pre-penal code voluntary manslaughter) in the
context of a motor vehicle collision, has involved multiple facts indicating a "high
rate of speed," "collision in the wrong lane," "running a red light," coupled with
the additional element of intoxication, except one. Cook v. Commonwealth ,
129 S.W.3d 351 (Ky. 2004); (defendant intoxicated plus "high rate of speed" on
"curvy road"); Love v. Commonwealth , 55 S .W.3d 816 (Ky. 2001) (intoxicated,
speeding 70-90 miles per hour - attempting to evade police) ; Estep v.
Commonwealth, 957 S.W.2d 191 (Ky. 1998) (zonked on drugs - head on
collision in wrong lane) ; Renfro v. Commonwealth , 893 S.W . 2d 795 (Ky. 1995)
overruled on other grounds (under the influence of alcohol, driving at a high rate
of speed, on wrong side of road and ran a red light) ; Walden v. Commonwealth ,
805 S.W.2d 102 (Ky. 1991) overruled on other grounds (B.A. of .297 plus high
rate of speed, collision across center line) ; Keller v. Commonwealth , 710 S .W.2d
5 (Ky . 1985) (intoxicated driver ran head on into victim's car at high rate of speed
in wrong lane) ; Hamilton v. Commonwealth , 560 S.W.2d 539 (Ky. 1978) (ran red
light at high rate of speed in drunken condition) .
The one exception was Graves v . Commonwealth , 17 S.W .3d 858 (Ky.
2000). Astonishingly, Graves involved a "running gun battle" during a car chase
over a bad drug deal at upwards of over 100 miles per hour through a red light,
broadsiding another vehicle, killing the occupants. Even so, the "wanton murder"
elements in Graves , were only held to have been satisfied under the tenets of
Bennett v . Commonwealth , 978 S.W.2d 322, 326-328 (Ky. 1998), a doctrine
similar to "transferred intent."
"Thus viewed, the high speed chase and the
exchange of gunfire were but circumstances involved in the method of
`perpetration or attempted perpetration' of the ongoing drug transaction (citations
deleted) ; and that conduct provided the element of aggravated wantonness
necessary to convict all three Appellants of the wanton murders . . ." Graves ,
supra, at 863. Obviously, the facts in this case do not meet the culpability level
of a high speed gun battle through a red light during a failed drug deal ; nor is
there evidence of "criminal intent" sufficient to transfer under the standards of
Bennett or Graves.
Looking next at charges of second degree manslaughter, intoxication still
predominates historically as a common element .
Tucker v. Commonwealth ,
2003 WL 23095746 (Ky. App.) (evidence of intoxication, racing and head on
collision) ; Commonwealth v. Mahoney , 1992 WL 5597 (Ky. App .), (drunk killed 27
people in a drunken stupor hitting a bus going the wrong way) ; Newcomb v.
Commonwealth , 124 S.W.2d 486, 488 (Ky. 1939) (pre-penal code - convicted of
voluntary manslaughter - "it may be said here that the defendant, in a rattle-trap
automobile, was out on a wild party on this Saturday night. All of them were
intoxicated . There were four in the driver's seat and two in the rumble") .
However, in charges of reckless homicide, you start to see more cases
where intoxication was not a factor. Burchett v. Commonwealth , 98 S .W .3d 492
(Ky. 2003) (ran a stop sign causing death - no direct proof
of
intoxication - but
was reversed to exclude statements of habitual daily use
of
marijuana) ;
Commonwealth v. Alexander, 5 S.W.3d 104 (Ky. 1999) (police officer doing 95100 miles per hour through intersection with emergency lights after emergency
had been called off and canceled - hit and killed motorist, no alcohol or drugs
involved - conviction of reckless homicide affirmed) ; Commonwealth v. Harrel , 3
S .W .3d 349 (Ky. 1999) (intoxicated while driving 50 miles per hour in a 35 mile
per hour zone - ran red light and hit vehicle killing passenger) ; Commonwealth v.
Runion , 873 S.W .2d 583 (Ky. App . 1994) (drinking driver hit turning vehicle) ;
Jones v . Commonwealth , 830 S .W .2d 877(Ky . 1992) (defendant, while driving
under the influence of alcohol struck another vehicle injuring a fetus who died
fourteen hours after delivery) ; Williams v. Commonwealth , 445 S .W .2d 446 (KY.
1969) (drag racing killed motorcyclist, convicted on involuntary manslaughter and
1 year sentence .
Drugs and alcohol were not involved) .
Rouse v.
Commonwealth, 303 S.W.2d 265, 266 (Ky. 1957) ("smell of alcohol on Appellant
was pretty strong after the accident") .
Moreover,
the
majority
opinion
embraces
the
language
of
KRS
507.020(1)(b), as supporting their affirmance . Yet, in reality, there is no support
there as a majority of this Court, right after the enactment of KRS 507 .020(1)(b),
noted its intent . "[A] drivers inclination to take `one or more [drinks] for the road,'
increases the vehicular death rate on the highways of this Commonwealth .
A
majority of the members of this Court [are] of the opinion that the
legislature enacted KRS 507.020(1)(b), to deter such conduct .
The
legislature is commended for taking such a giant step forward. Its actions
in enacting this statute will do much to decrease vehicular highway deaths
by persons operating an automobile while
under the influence of
intoxicants ." Hamilton v. Commonwealth , 560 S.W .2d 539, 544 (Ky. 1978) .
Then later, consistent with Hamilton , we put another brake on the use of
"wanton murder" in vehicular homicide cases (not involving intoxicants) by our
decision in Johnson , su ra.
In Johnson, a heavily loaded coal truck drove
through a red light at an intersection on US 23 in Floyd County, striking and
killing the occupant of another vehicle. The speed limit on US 23 was 55 miles
per hour but the speed of the coal truck was undetermined. In Johnson , we said
"no evidence was introduced by the Commonwealth of extreme speed or even
that the Appellant was exceeding the legal speed limit . Evidence was introduced
that the Appellant was not operating the coal truck under the influence of drugs
or alcohol; . . ." Johnson at 953.
Citing Hamilton and Walden , cases in which
conduct involved both "extreme rates of speed" and "intoxication," we said "there
is a noted absence of these factors in the case at hand. This Court has held
that a conviction of wanton murder is reserved exclusively for offenders
who manifest virtually no concern for the value of human life ." Johnson at
952.
If we are now going to leave this road of legal precedent, let's do it
intentionally and with knowledge we're leaving - let's don't just drift off
inattentively .
And while I
agree "the decision
as to whether the aggravated
circumstances (of extreme indifference to human life and grave risk of death to
another) were present is best
left up to the jury to
decide," Cook v.
Commonwealth , supra at 363, there are times, as in Johnson, when we have to
have the courage to draw the line . Most prosecutors do not want authority to use
"wanton murder' charges under circumstances such as this .
However, being
realists, they must respond to pressures from the public to do something about a
particular case . That pressure is greatest where the "results" of the conduct are
the most tragic as in this case . Thus, if we open the "flood gate" on "wanton
murder" prosecutions in vehicular homicide cases where there is no evidence of
intoxicants, or other terrible circumstances more akin to intentional conduct like
Graves (the "running gun battle" over the failed drug deal), then prosecutors will
be forced to use the charge more and more . Why should they have to stand
alone in their communities, resisting the pressures of the public (and the press),
when the consequences of an incident are indeed terrible, aside from questions
of the degree of culpability of the participants .
They look to us too - and we
should not set down our burden so lightly.
That the conduct of the defendant in this case may have been "wanton" is
certainly debatable ; that the conduct manifested "an extreme indifference to the
value of human life" is not. "To explode a barrel of gun powder in a crowded
street, and kill people is murder, although the actor hopes that no such harm will
be done . But to kill a man by careless riding in the same street would commonly
be manslaughter." Justice Holmes, Holmes, the Common Law p. 60. The
maximum sentence for a "wanton" act of "second degree manslaughter" is 10
years, not 20 to life . "All we know who lie in jail - are that the walls are strong -
and each day is like a year - a year whose days are long."
Oscar Wilde, The
Ballad of Reading Jail IV, St . 1 .
While we have the power, to some extent, to interpret, control, or
influence, the boundaries of criminal conduct, we must always strive to maintain
the standards of punishment at determinative levels based upon the culpability
involved . If this case stands affirmed, we have not met our obligation - we have
laid it down .
For the reasons set out, I would reverse this conviction due to the
insufficiency of the evidence to support the charge of "wanton murder" and would
remand it to the trial court for a new trial on the charges of "second degree
manslaughter" and "reckless homicide ."
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