DANIEL KEITH GABBARD V. COMMONWEALTH OF KENTUCKYAnnotate this Case
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RENDERED : MAY 19, 2011
NOT TO BE PUBLISHED
DANIEL KEITH GABBARD
ON APPEAL FROM PENDLETON CIRCUIT COURT
HONORABLE GREGORY M . BARTLETT, SPECIAL JUDGE
NO . 09-CR-00025
COMMONWEALTH OF KENTUCKY
MEMORANDUM OPINION OF THE COURT
Daniel Gabbard appeals as a matter of right from a Judgment of the
Pendleton Circuit Court convicting him of two misdemeanor driving-under-theinfluence offenses and of wanton murder, in violation of Kentucky Revised
Statute (KRS) 507 .020(1)(b) . For the murder, in accord with the jury's
recommendation, the trial court sentenced Gabbard to twenty years in prison .
The Commonwealth alleged that on June 8, 2009, Gabbard, a licensed
commercial truck driver, was operating his semi-tractor without a trailer
southbound on US Highway 27 near Butler, Kentucky when he lost control of
his vehicle, crossed the centerline of the two lane road, and collided head on
with a northbound vehicle . The driver of the other vehicle, Doug Wright, the
Commonwealth's Attorney for Pendleton County,' was killed in the collision .
The main contention of Gabbard's appeal is that the evidence did not establish
the aggravated wantonness that must be shown to elevate second-degree
manslaughter or reckless homicide to wanton murder. He also contends that
he was denied the effective assistance of counsel and the full use of his
peremptory juror strikes . Believing that the counsel issue has been raised
prematurely and otherwise finding no error, we affirm.
The Commonwealth's proof included medical testimony establishing
blunt force traumas sustained in the collision as the cause of Wright's death,
and the testimonies of several witnesses who described Gabbard's erratic
driving leading up to the collision . Witnesses estimated Gabbard's speed at
well in excess of the forty-five mile-per-hour limit. They had observed him
weaving back and forth across the center line, and one testified that
immediately before the collision she saw Gabbard's truck leave the roadway on
the right side and then veer suddenly to the left into the oncoming lane. An
accident reconstructionist found no evidence that Gabbard had applied his
brakes, and estimated his speed at impact as fifty-five to sixty miles-per-hour .
Witnesses who had stopped to lend assistance and investigators called to the
scene observed unopened cans of beer inside Gabbard's truck and lying on the
Wright served the 18th Judicial Circuit, which comprises Pendleton, Harrison,
Robertson, and Nicholas counties .
ground outside the driver's door. Investigators ultimately found eight
unopened cans of beer in and around the truck.
Gabbard did not sustain serious injuries in the collision, but he suffered
a cut to his scalp and appeared disoriented at the scene. He submitted to a
breath test and was later transported by ambulance to the University Hospital
in Cincinnati . One of the EMTs testified that he had smelled alcohol on
Gabbard's breath. Hospital personnel took three blood samples . The samples
were analyzed by a forensic pathologist who testified to the presence of alcohol
in them and estimated that Gabbard's blood alcohol level at the time of the
collision would have been between 0 .194 and 0 .21 grams of alcohol per 100
milliliters of blood, a level at which, according to the pathologist, Gabbard's
motor skills would very likely have been impaired .
A Pendleton County sheriff arrested Gabbard the day following the
collision, and on June 17, 2009, the Grand Jury for that county indicted him
for murder and for the two DUI misdemeanors . A few weeks later, having
consulted with counsel, Gabbard confessed to investigators that he had been
working in Northern Kentucky and Southern Ohio the day of the collision, that
early that day he had purchased a package of twenty-four cans of beer and
that he had begun drinking as soon as he began the trip home to Butler . He
admitted that he had consumed at least twelve and could have consumed as
many as sixteen beers during the drive and that during the drive he realized he
was intoxicated but did not stop. He also acknowledged that he had drunk
several beers during the drive home many other times . Gabbard had little
recollection of the collision and did not dispute the eyewitness descriptions of
his driving .
Gabbard's defense at trial was to concede the indisputable facts of his
intoxication and his role in causing the fatal collision and to concede that he
deserved to be punished, but to argue that his state of mind was not the
aggravated wantonness punishable as murder . He testified to his profound
remorse and to his awareness, as a licensed truck driver, as a husband and
father, and as a minister at a small church, of the wrongfulness of driving
under the influence of alcohol, but he claimed that his having had beer during
the drive home on other evenings without incident lulled him into believing that
he could safely do so again . It was that false confidence, he maintained, and
not indifference to the value of human life that underlay his egregious choices
leading to Wright's death . The jury, as noted, rejected that defense and found
Gabbard guilty of wanton murder, but the defense appears to have succeeded
to the extent that the jury recommended -the minimum punishment for that
crime . Nevertheless, Gabbard maintains that his conduct cannot justly be
characterized as murder and that the trial court erred by denying his motion
for a directed verdict on that charge . We disagree .
I . The Jury's Wanton Murder Verdict Was Not Unreasonable .
In a criminal prosecution, of course, it is the Commonwealth's burden to
prove each element of the alleged offense beyond a reasonable doubt . Jackson
v. Virginia, 443 U .S . 307 (1979) ; . In the Matter of Winship, 397 U .S . 358 (1970) .
At the close of the Commonwealth's case Gabbard moved for a directed verdict
on the murder charge on the ground that the evidence was insufficient . The
trial court is to grant such a motion only if, when construed in favor of the
Commonwealth, the evidence could not induce a reasonable juror to believe
beyond a reasonable doubt that the defendant is guilty . "There must be
evidence of substance, and the trial court is expressly authorized to direct a
verdict for the defendant if the prosecution produces no more than a mere
scintilla of evidence ." Commonwealth v. Benham, 816 S .W.2d 186, 187-88 (Ky.
1991) . The trial court denied the motion, and Gabbard then testified as noted
above . At the conclusion of his testimony, which was the only evidence
proffered by the defense, Gabbard failed to renew his motion to dismiss the
murder charge, and thus, as the Commonwealth correctly notes, he failed
properly to preserve this issue for appeal.2 We need not address the
preservation issue, however, or the standard of review applicable to
unpreserved directed verdict claims, because even under the Benham
standard, the standard of review for preserved directed verdict claims, Gabbard
is not entitled to relief. But see Potts v. Commonwealth, 172 S .W.3d 345 (Ky .
2005) (holding that unpreserved directed verdict claims are to be reviewed
under the palpable error standard and that failures of proof do not necessarily
meet that standard) . Under the Benham standard, we may overturn the trial
Since Gabbard was not claiming a right to acquittal but only to the dismissal of the
murder charge, the proper procedure would have been an objection to the jury
instruction on that offense . Johnson v. Commonwealth, 292 S.W.3d 889 (Ky. 2009) .
Unfortunately, the trial court held the instruction colloquy off the record so it is
unclear what occurred, but Gabbard does not claim to have preserved this issue in
court's denial of a motion for directed verdict only if, considering the evidence
as a whole and drawing all reasonable inferences in favor of the
Commonwealth, "it would be clearly unreasonable for a jury to find guilt."
Benham, 816 S .W.2d at 187 . Because the jury's murder verdict was not
unreasonable, Gabbard is not entitled to relief.
We may begin our discussion by noting that under KRS 507 .040, "[a]
person is guilty of manslaughter in the second degree when he wantonly
causes the death of another person, including, but not limited to, situations
where the death results from the person's . . . operation of a motor vehicle ."
"Wantonly" is defined in KRS 501 .020 as follows :
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 nature and degree that disregard
thereof constitutes a gross deviation from the standard
of conduct that a reasonable person would observe in
the situation . A person who creates such a risk but is
unaware thereof solely by reason of voluntary
intoxication also acts wantonly with respect thereto .
If the wantonness is aggravated, i.e., if the person disregards a grave risk of
death to another, "including, but not limited to, [risks arising from] the
operation of a motor vehicle," under circumstances manifesting extreme
indifference to human life, the killing ceases to be manslaughter and becomes
murder instead. KRS 507 .020(1)(b) .
Here, Gabbard drove his massive semi-tractor at a high rate of speed in
the on-coming lane of a two-lane highway. Clearly, under the circumstances of
this case that conduct has no justification, and it created such an obvious and
grave risk of causing another person's death that it may reasonably be thought
to manifest extreme indifference to human life . Gabbard may be deemed to
have disregarded that risk both consciously and presumptively . He did so
consciously both when he told himself that despite the well known dangers of
drinking and driving he could drink and drive without mishap because he had
been fortunate enough to have done so before and when he realized that he
was intoxicated but continued to drive nevertheless . He presumptively
disregarded the grave risk of death he was creating when, by driving in excess
of fifty-five miles-per-hour on the wrong side of the road, he created the
imminent risk of killing someone and was unaware of that risk solely by reason
of his voluntary intoxication .
We do not doubt the sincerity of Gabbard's remorse or the fact that he
did not intend to kill as he wove along the highway that evening, but KRS
507 .020(1)(b)'s express inclusion of motor vehicle homicides as potential
wanton murders makes clear the General Assembly's intent to punish seriously
the taking of a life by one whose driving was especially egregious . We have
recognized that intent in many cases in which, like this . one, an intoxicated
driver created a grave hazard that resulted in another person's death .
Hamilton v. Commonwealth, 560 S .W.2d 539 (Ky. 1977) (speeding and running
red light) ; Walden v. Commonwealth, 805 S.W.2d 102 (Ky. 1991) (speeding and
driving across the center line) ; Estep v. Commonwealth, 957 S .W.2d 191 (Ky.
1997) (speeding and driving across the center line) ; Love v. Commonwealth, 55
S .W. 3d 816 (Ky . 2001) (speeding and ignoring police roadblock) ; Cook v.
Commonwealth, 129 S .W.3d 351 (Ky. 2004) (speeding and driving into victim's
yard) . As these cases make clear, and as noted above, Gabbard's operation of
his heavy truck at a high speed across the center line of the highway created so
grave a risk of death that a reasonable juror could find in the creation. of that
risk an extreme indifference to the value of human life . The trial court did not
err, accordingly, when it denied Gabbard's motion to dismiss the charge of
II . Gabbard's Ineffective Assistance Of Counsel Claim Is Premature .
Gabbard next contends that he was denied the effective assistance of
counsel. As noted above, the defense strategy at trial was to concede that
Gabbard's impaired driving caused Wright's death, but to deny that the killing
amounted to murder. In what appears to have been an attempt to impress
upon the jury that Gabbard was not trying to hide anything and that he
accepted responsibility for what he had done, counsel did not object to venue
in Pendleton County, did not move for the separation of witnesses, and did not
raise objection to any of the Commonwealth's evidence establishing how the
collision occurred and Gabbard's intoxication at the time . Counsel made
several comments to the jury to the effect that Gabbard was sorry for Wright's
death and accepted punishment for having caused it . Apparently in an
attempt to underscore Gabbard's remorse, counsel even had Gabbard appear
at trial in his jail attire . Gabbard now takes issue with counsel's performance
in all of these respects and insists that the defense amounted to little more
than a guilty plea to the jury .
Although the Supreme Court of the United States has upheld a defense
strategy conceding guilt in an effort to mitigate punishment, Florida v. Nixon,
543 U.S . 175 (2004), we need not decide if that case controls here since this
issue is not yet ripe for review . "As a general rule," we have explained,
a claim of ineffective assistance of counsel will not be
reviewed on direct appeal from the trial court's
judgment, because there is usually no record or trial
court ruling on which such a claim can be properly
considered. Appellate courts review only claims of
error which have been presented to trial courts .
Moreover, as it is unethical for counsel to assert his or
her own ineffectiveness for a variety of reasons, and
due to the brief time allowed for making post trial
motions, claims of ineffective assistance of counsel are
best suited to collateral attack proceedings, after the
direct appeal is over, and in the trial court where a
proper record can be made .
Leonard v. Commonwealth, 279 S .W.3d 1.51, 158 n . 3 (Ky. 2009) . Although
Gabbard's appellate counsel did not represent him at trial, so there is nothing
unethical about his raising an ineffective assistance claim at this juncture,
nevertheless, the general rule against such claims on direct appeal applies
here . Because the issue has not yet been presented to the trial court, there is
no record---in particular no testimony by trial counsel explaining his
decisions-upon which to base a meaningful review . Gabbard is not entitled to
relief on this ground, therefore, but he is not precluded from asserting an
ineffective assistance of counsel claim in the trial court pursuant to Kentucky
Rule of Criminal Procedure (RCr) 11 .42 should he so desire .
III. Gabbard Did Not Properly Preserve Alleged Jury Selection Errors.
Finally, Gabbard contends that the trial court erred when it refused to
excuse for cause two venire-persons who had connections with the victim,
Wright . Gabbard used peremptory strikes to remove them, and, citing Shane v.
Commonwealth, 243 S .W .3d 336 (Ky. 2007), he now insists that he was thus
denied his right to the effective use of his full complement of peremptory
Although Gabbard is correct that in Shane we held it to be reversible
error for the trial court to, in effect, require a defendant to use one of his
otherwise exhausted peremptory strikes to remove a potential juror who should
have been removed for cause, we have since modified that holding. In
(coincidentally) Gabbard v. Commonwealth, 297 S .W.3d 844 (Ky. 2009), we
noted that a Shane violation is not prejudicial if ultimately the jury includes no
one the defendant wished to remove but could not because of the violation and
resulting need to use a peremptory strike on someone the court should have
excused for cause . We held, accordingly, that to preserve the alleged error and
to show prejudice, a defendant who wishes to complain on appeal "that he was
denied a peremptory challenge by a trial judge's erroneous failure to grant a
for-cause strike . . . must identify on his strike sheet any additional jurors he
would have struck ." Gabbard, 297 S.W.3d at 854.
The Gabbard opinion was rendered on October 29, 2009, and so was in
effect when jury selection for Gabbard's trial commenced on January 12, 2010.
To preserve this issue for appeal, therefore, Gabbard was required to indicate
expressly on his strike sheet and to tell the trial court which potential jurors he
would have removed if the two jurors he objected to had been removed for
cause . This Gabbard failed to do . His strike sheet does include two strikes
which for some reason he cancelled, but there is no indication, certainly no
express indication, that the cancelled strikes were ones he wished to make but
could not because of the trial court's rulings . His failure to comply with the
preservation requirement makes it impossible to say that Gabbard was
prejudiced by the trial court's alleged errors . Even if we assume that those
errors occurred, therefore, the lack of prejudice precludes relief.
In sum, the proof of wanton murder need not include evidence that the
defendant was mean-spirited or that he in any way intended the death he
caused . It is enough if he consciously created a grave risk of death so devoid of
justification that it may reasonably be thought to reflect an extreme
indifference to the value of human life . Intoxication is no defense to wanton
murder, for intoxication is presumed not to affect one's consciousness of the
risks one creates, and it provides no justification for risky behavior,
particularly the extreme risks inherent in drunk driving. That Gabbard
intended no harm, therefore, did not preclude his murder conviction, and the
circumstances here-Gabbard's intoxication and the extremely high risk of
death his egregious driving brought about-support the jury's finding that he
disregarded a grave risk of death under circumstances manifesting an extreme
indifference to human life . Gabbard failed, moreover, to preserve his claim that
the trial court erred by refusing to remove two potential jurors for cause, and
his ineffective assistance of counsel claim is premature. Accordingly, we affirm
the May 18, 2010 Judgment of the Pendleton Circuit Court.
Minton, C .J. ; Abramson, Cunningham, Noble, Scott, and Venters, JJ .,
concur . Schroder, J ., not sitting .
COUNSEL FOR APPELLANT :
Bradley Wayne Fox
Fox 8v Scott, PLLC
517 Madison Avenue
Covington, KY 41011
COUNSEL FOR APPELLEE:
Perry Thomas Ryan
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204