TIMMY G. CARROLL V. COMMONWEALTH OF KENTUCKY
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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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 BINDING PRECEDENT IN ANY OTHER
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RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
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RENDERED : JANUARY 22, 2009
NOT TO BE PUBLISHED
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2007-SC-000613-TG
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TIMMY G . CARROLL
V.
APPELLANT
ON APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE DAVID H . JERNIGAN, JUDGE
NO . 07-CR-00035
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Timmy G. Carroll, was convicted of fleeing and evading in the
first degree and of being a persistent felony offender in the first degree . The
jury recommended a sentence of five years' imprisonment, which was enhanced
to twenty years by virtue of Appellant's persistent felony offender status. He
now appeals to this Court as a matter of right . Finding no error, we affirm.
Appellant visited the home of Jerry Landrum and Landrum's girlfriend,
Jessica DeArmond, on New Year's Eve, December 31, 2006 . Appellant arrived
on foot, but requested a ride home in DeArmond's car, a white Grand Prix.
Because her children were sleeping and Landrum. was drunk, DeArmond
agreed to let Appellant borrow her car, which Landrum would drive home later.
After two short visits with his siblings, Appellant and Landrum headed to
Appellant's mobile home .
Kentucky State Trooper Timmy Jewell attempted to pull the Grand Prix
over as Appellant and Landrum were en route to Appellant's home . He clocked
the Grand Prix traveling thirteen miles per hour over the speed limit and
turned on his lights and siren . Instead of pulling over, Appellant sped up,
looking back towards Trooper Jewell as he veered left off the highway onto a
narrow, country road. Jewell testified that Appellant was driving erratically,
crossing into the oncoming lane several times. After cresting a small hill,
Appellant lost control of the car and skidded into a field . The car traveled for
some distance before hitting a ditch, and then Appellant fled on foot . Trooper
Jewell stopped his cruiser near the Grand Prix and observed Landrum in the
passenger seat. He then pursued Appellant on foot, but was unable to find
him. With the assistance of a thermal imaging device, Appellant was
eventually located hiding in the woods about a mile from the field. Upon his
arrest, Appellant admitted to Trooper Jewell that he had used
methamphetamine that evening. Blood and urine samples were taken, which
tested positive for methamphetamine and amphetamines.
At trial, Appellant's defense was that Landrum was actually driving the
car. He relied on his own testimony to that effect, as well as the testimony of
his brother and nephew. His nephew testified that following a brief visit to
Appellant's sister's house, Landrum was driving the car. His brother likewise
testified that the two men visited him that evening, and that Landrum was in
the driver's seat . The testimony of Jessica DeArmond, Trooper Jewell, and
Landrum contradicted these assertions .
Appellant was convicted and this appeal followed. He argues that the
combination jury instructions denied him a unanimous verdict, as the evidence
only supported one theory of guilt. He also claims the trial court erroneously
denied his motion for a new trial, based on juror bias, without an evidentiary
hearing.
The trial court delivered a combination jury instruction on the fleeing
and evading charge. In addition to proof that the defendant knowingly or
wantonly disobeyed a direction by a police officer to stop his vehicle, KRS
520 .095(1)(a) provides that a person is guilty of fleeing or evading police in the
first degree if one of the following conditions is met : (1) the person is fleeing
immediately after committing an act of domestic violence; (2) the person is
driving under the influence of alcohol or any other enumerated controlled
substance ; (3) the person is driving with a suspended driver's license; or (4) the
person causes or creates a substantial risk of serious physical injury or death
to any person or property by fleeing or eluding. Here, the jury was permitted to
find Appellant guilty if it found that he was under the influence or that he
created a substantial risk of injury or death by fleeing .
Appellant now claims the evidence was insufficient to support a finding
that he was under the influence of methamphetamine while operating the car.
Though he admitted his prior use of methamphetamine to Trooper Jewell, and
drug tests confirmed the presence of the drug in his system, Appellant argues
that insufficient evidence was presented to the jury regarding the actual effects
of methamphetamine on a person's ability to operate a vehicle.
The preservation of this error for appellate review is questionable . While
defense counsel did move for a directed verdict on the ground that there was
no evidence of impairment, an objection was not made to the instructions, nor
were alternate instructions tendered, as required by RCr 9 .54(2) . Without
determining if the error is adequately preserved, we find that the evidence was
sufficient to support conviction under either theory of guilt .
There was ample evidence that Appellant used methamphetamine that
evening: he admitted as much to both Trooper Jewell and Landrum, and the
blood and urine tests confirmed this fact. In addition, Trooper Jewell and
Landrum testified that Appellant was driving up to 100/ mph on a narrow,
country road ; that he swerved into the oncoming lane several times ; and that
he disregarded numerous traffic laws.
To be in violation of KRS 520 under the "impairment" theory,
.095(1)(a)
the Commonwealth must prove that the person is driving under the influence
of a substance or combination of substances which impairs one's driving
ability. KRS 189A .010(1)(c) . Appellant concedes he was "under the influence"
of methamphetamine, but argues there was no direct proof that the drug
impairs one's driving ability. We have explained what proof is necessary in
such instances:
We take as legislative facts that: 1) alcohol (or other substances)
may impair driving ability; and 2) a driver actually under the
influence of such substances is impaired as a driver, conclusively,
and presents a danger to the public. Proof that a driver was
"under the influence" is proof of impaired driving ability.
Bridges v. Commonwealth, 845 S.W .2d 541, 542 (Ky. 1993) (emphasis in
original) . See also Hayden v. Commonwealth, 766 S .W.2d 956, 956-57 (Ky.
App. 1989) (explaining that KRS 189A.010(1), concerning driving while under
the influence of alcohol, would "be redundant if read so as to require proof not
only that the defendant was under the influence of alcohol but also that alcohol
impairs one's driving ability") . Driving errors, such as those described by
Landrum and Trooper Jewell, are not indispensable to a claim of impairment,
though they are further evidence of such impairment. Bridges, supra. The
evidence was sufficient to support a finding of guilt under either the
"impairment" theory of fleeing in the first-degree, or the "risk of harm" theory.
As such, there is no unanimity problem . Davis v. Commonwealth, 967 S .W.2d
574, 582 (Ky . 1998) .
Appellant next argues that the trial court erred in denying his motion for
a new trial. At a hearing on the motion, Appellant claimed that a member of
the jury panel did not disclose to the trial court that he and Appellant were
related. Apparently, one juror's brother was formerly married to Appellant's
first cousin . On appeal, Appellant argues that he was entitled to an evidentiary
hearing on this matter. We disagree .
This is not the type of relationship between a juror and the defendant or
a witness where bias is to be presumed. Cf. Ward v. Commonwealth , 695
S .W.2d 404, 407 (Ky. 1985) (no error where trial court refused to exclude an
ex-brother-in-law for cause) . The fact that Appellant did not alert the trial
court of this fact during voir dire, presumably because he did not recognize the
juror himself, only underscores the absence of any real relationship . There is
5
no indication that this tenuous relationship would have provided a valid basis
for a challenge for cause and, therefore, the trial court did not err in denying
Appellant's motion for a new trial . Adkins v. Commonwealth, 96 S.W.3d 779,
796 (Ky. 2003) (To 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 .") (internal citations omitted) .
For the foregoing reasons, the judgment of the Muhlenberg Circuit Court
is affirmed .
All sitting. All concur.
COUNSEL FOR APPELLANT:
Emily Holt Rhorer
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE :
Jack Conway
Attorney General
David Bryan Abner
Assistant Attorney General
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort, KY 40601
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