LESTER E . COOK, JR . V. COMMONWEALTH OF KENTUCKY
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2002-SC-0486-MR
LESTER E. COOK, JR.
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APPELLANT
APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE PAUL BRADEN, JUDGE
01-CR-148
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE COOPER
AFFIRMING IN PART AND VACATING AND REMANDING IN PART
On August 20, 2001, Billy Joe and Lisa Rains were standing in the front yard of
their home on Bee Creek Road in Whitley County, Kentucky, when a 1984 Chevrolet
Corvette automobile operated by Appellant, Lester E. Cook, Jr., drove into their yard,
striking and killing Mrs . Rains . Appellant was subsequently convicted by a Whitley
Circuit Court jury of wanton murder, KRS 507.020(1)(b), and sentenced to imprisonment
for life. He appeals to this Court as a matter of right, Ky. Const. § 110(2)(b), contending
that the trial court erred by: (1) overruling his motion to exclude for cause all jurors who
had been exposed to media reports about the incident; (2) failing to suppress his blood
alcohol test results ; (3) allowing the Commonwealth to introduce evidence of his refusal
to take a blood alcohol test; (4) permitting the Commonwealth to introduce evidence that
the victim was pregnant at the time of her death ; (5) overruling his motion for a directed
verdict of acquittal ; and (6) permitting the Commonwealth to introduce evidence of a
previous conviction that had been set aside . He also asserts that KRS 507.020(1)(b) is
unconstitutionally vague . We now affirm Appellant's conviction but vacate his sentence
and remand for a new penalty phase trial.
On the day Mrs . Rains was killed, Appellant and his neighbor, Otis Earls, Jr., had
driven to Jellico, Tennessee, where they purchased two cases of beer and "three or six"
bottles of malt liquor. According to Earls, the only witness who testified to Appellant's
activities prior to the fatal collision, Appellant placed the alcohol in the back of his pickup
truck and stated, "If we can't wait till we get home to drink them, we don't need to be
drinking ." The two men returned to Appellant's residence around 3:30 p.m. and each
drank a beer . Appellant's girlfriend, Annette Miller, later arrived and she and Appellant
stayed inside the house for approximately an hour and a half while Earls mowed
Appellant's lawn. Earls did not know whether Appellant consumed any alcohol while
inside the house. Appellant and Miller then left the premises for another hour to an hour
and a half. They left two bottles of beer for Earls to drink. Earls did not think Appellant
took any alcohol with him and did not know whether Appellant consumed any alcohol
during this absence.
Appellant and Miller returned to Appellant's residence around 6:00 p .m ., and they
and Earls each drank two more beers . Miller then asked Appellant to go to a store and
purchase some cigarettes for her. Appellant and Earls proceeded to the Corvette, each
carrying another beer . Earls testified that he had personally observed Appellant
consume three or four beers prior to that point in time .
Upon reaching Bee Creek Road, Appellant told Earls he was going to "show him
what his car had," then spun the car's tires and began speeding . According to Earls,
Appellant was driving so fast that he (Earls) feared that "if he didn't slow down, we
would wreck." As they entered a curve, Appellant lost control of the vehicle, which then
struck a guardrail, tearing the bead off the rim of one of the tires, which propelled the
car off of the roadway, through a ditch, and into the Rainses' front yard. The
Commonwealth's accident reconstructionist, Kentucky State Police Trooper James
Trosper, estimated that Appellant's car was traveling between 48 and 49 miles per hour
when it entered the ditch . The speed limit was 55 miles per hour.
Appellant's car struck Mrs. Rains from behind, throwing her onto the hood of the
car, and into the air, from where she fell to the ground, rolled over a number of times
and came to rest on her back. Two neighbors, Kelly Centers and Donna Mahan, were
soon on the scene . Centers attempted cardiopulmonary resuscitation (CPR) but Mrs.
Rains never resumed breathing . She was transported to Baptist Regional Medical
Center in Corbin where she was pronounced dead .
Deputy Christopher Stack of the Whitley County Sheriff's Department was one of
the first police officers to arrive on the scene. He subjected Appellant to several field
sobriety tests and testified that Appellant failed them all . A videotape of Appellant's
efforts during these tests was played at trial and a jury could fairly conclude from
viewing the videotape that Appellant was intoxicated . Stack arrested Appellant and
transported him to Baptist Regional Medical Center to obtain blood and urine samples in
order to test for alcohol or drugs .
At the hospital, Stack read Appellant the implied consent warning required by
KRS 189A .105(2)(a) . Appellant stated that he would not give a blood sample until he
had spoken with an attorney . Stack informed Appellant that he could not speak to an
attorney unless he submitted to the test. When Appellant declined to submit to the test,
Stack asked Kentucky State Police Trooper David Lassiter to obtain a search warrant .
Lassiter prepared an affidavit, obtained the warrant from a judge, brought it to the
hospital and served it on a phlebotomist who withdrew a sample of blood from
Appellant's arm. The sample was taken approximately four hours and forty-five minutes
after the collision . A test of the sample revealed a blood alcohol concentration of 0.09
grams per 100 milliliters. See KRS 189A.005(1) . The Commonwealth's expert, Dr.
Greg Davis, estimated by back-extrapolation that Appellant's blood alcohol
concentration at the time of the collision would have been between 0 .16 and 0.185
grams per 100 milliliters.
I. PRETRIAL PUBLICITY.
Prior to trial, two Corbin newspapers and one Lexington newspaper published a
total of twelve articles about the case . Most of the articles mentioned that Mrs . Rains
was four weeks pregnant at the time of her death, and several detailed Appellant's past
illegal conduct, including driving under the influence of alcohol (DUI) and domestic
violence charges . A few articles described a fatal accident in 1971 following which
Appellant pled guilty to DUI and involuntary manslaughter in the first degree . Appellant
argues that the trial court erred in refusing to strike for cause all jurors who had read
any articles about the case . The trial judge overruled the motion but permitted
individual voir dire of any juror who admitted having any prior knowledge of the case.
He excused for cause every juror who admitted to having already formed an opinion
about the case and every juror who remembered reading about the 1971 case. Of the
twelve persons selected for the final jury, five had read newspaper accounts of Mrs.
Rains's death but none had formed an opinion as to Appellant's guilt or innocence or
knew of the 1971 incident .
A criminal defendant has the right to an impartial and unbiased jury. RCr 9 .36(1) ;
Butler v. Commonwealth , Ky., 387 S.W.2d 867, 868 (1965). However, the party alleging
bias bears the burden of proving that bias and the resulting prejudice. Caldwell v.
Commonwealth, Ky., 634 S.W .2d 405, 407 (1982) (citing Watson v. Commonwealth ,
Ky., 433 S .W .2d 884 (1968)) . No implied bias arises from mere juror exposure to
information about the case; rather it must be shown that the exposure actually biased
the juror. Gould v . Chariton Co . , Ky., 929 S .W.2d 734, 739 (1996). As stated in
McQueen v. Scroggy , 99 F .3d 1302 (6th Cir. 1996) :
There is no per se rule that mere exposure to media reports about a case
merits exclusion of a juror. To the contrary, in order to merit
disqualification of a juror, the media reports must engender a
predisposition or bias that cannot be put aside, requiring the juror to
decide a case one way or the other.
Id. at 1319 .
The decision whether to excuse a juror for bias lies within the sound discretion of
the trial court . Grooms v. Commonwealth , Ky., 756 S.W.2d 131, 134 (1988). The trial
judge did not abuse his discretion in this case. He conducted individual voir dire of each
juror who had prior knowledge of the case and excluded anyone who knew about
Appellant's previous accident or had already formed an opinion as to his guilt . He did
not attempt to rehabilitate jurors by, e .g ., inquiring whether they could put their
knowledge or opinions aside and render a fair verdict on the evidence . Montgomery v.
Commonwealth, Ky., 819 S .W .2d 713, 717-18 (1991) . As the law only requires
impartial jurors, not ones who are ignorant or uninformed, a trial judge is not required to
strike for cause jurors who have some information about the case but have not yet
formed an opinion as to its outcome. McQueen , supra , at 1320 ; Furnish v.
Commonwealth, Ky., 95 S.W .3d 34, 45 (2002) ; Bowling v. Commonwealth , Ky., 942
S .W .2d 293, 299 (1997) (citing Mabe v. Commonwealth , Ky., 884 S.W .2d 668 (1994)) .
II. BLOOD ALCOHOL TEST RESULTS .
Appellant asserts that his blood alcohol test results should have been
suppressed because Stack refused his request to contact an attorney prior to testing.'
Stack testified that he brought Appellant to the hospital between 8:00 and 9:00 p.m. on
August 20, 2001, and read Appellant the implied consent warning pursuant to KRS
189A .105(2)(a) . Appellant expressed his desire to consult with an attorney prior to
taking the blood test but Stack refused . Stack described the conversation as follows :
A:
He just told me he didn't want to take the test until he talked to his
lawyer.
So, when he asked you for a lawyer you took that as a refusal. Is
that correct?
A:
No. Then I said he don't get a lawyer unless you take my test and
he said, well, I'm not taking your test.
Q:
So, if you take the test you get a lawyer and if you don't take the
test you don't get a lawyer. Is that right?
A:
Yes . It's in the implied consent .
Stack either seriously misconstrued the meaning of the implied consent statute or
was unaware that it had been recently amended . KRS 189A .105(3), effective
October 1, 2000, provides :
Appellant does not claim here that the blood alcohol results should have been
suppressed on relevancy grounds . However, no one testified to the legal presumptions
established in KRS 189A .010(3), presumably because they are inadmissible when a
defendant is charged with homicide . Walden v. Commonwealth , Ky., 805 S .W .2d 102,
103 (1991), overruled on other grounds by Commonwealth v. Burge, Ky., 947 S.W.2d
805, 811 (1996) ; Overstreet v. Commonwealth , Ky., 522 S.W.2d 178, 179 (1975). Nor
did any witness attempt to testify to the effect that a particular blood alcohol level might
have had on Appellant's ability to operate a motor vehicle.
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During the period immediately preceding the administration of any test, the
person shall be afforded an opportunity of at least ten (10) minutes but not
more than fifteen (15) minutes to attempt to contact and communicate with
an attorney and shall be informed of this right. Inability to communicate
with an attorney during this period shall not be deemed to relieve the
person of his obligation to submit to the tests and the penalties specified
by KRS 189A.010 and 189A .107 shall remain applicable to the person
upon refusal . Nothing in this section shall be deemed to create a right to
have an attorney present during the administration of the tests, but the
person's attorney may be present if the attorney can physically appear at
the location where the test is to be administered within the time period
established in this section.
(Emphasis added .) Therefore, Stack's contention that Appellant could not contact an
attorney until and unless he agreed to take the test was erroneous. The statute clearly
provides that a person has a right to at least attempt to contact an attorney before the
administration of the test . Appellant asserts that this violation of KRS 189A.105(3)
requires suppression of the blood test results . This would be a better argument if he
had actually consented to the blood tests and was claiming that the violation of the
statute negated his consent. See, e.g . , Copelin v. State, 659 P .2d 1206, 1214 (Alaska
1983) (application of exclusionary rule to evidence obtained in violation of right to
counsel provided in implied consent law "will serve to deter future illegal police
conduct") ; State v. Juarez, 775 P.2d 1140, 1145 (Ariz. 1989) (en banc) (police refusal to
permit DUI arrestee to consult counsel before consenting to breath test violates
constitutional right to counsel) ; State v. Spencer, 750 P.2d 147, 156 (Or. 1988) (same) .
But see Beach v. Commonwealth , Ky., 927 S.W.2d 826, 828 (1996) ("[E]vidence should
not be excluded for the violation of provisions of a statute where no constitutional right is
involved .") (interpreting KRS 189A .103(5)) . C.f. Gilbert v. California , 388 U .S . 263, 267,
87 S .Ct. 1951, 1953, 18 L.Ed .2d 1178 (1967) (taking of handwriting exemplars not
critical stage of criminal proceedings entitling defendant to assistance of counsel) .
However, the issue here is not whether Stack's error negated Appellant's
consent, for Appellant did not consent to the taking of his blood sample . Rather, the
sample was obtained involuntarily pursuant to a search warrant. KRS 189A .105(2)(b)
reads :
Nothing in this subsection shall be construed to prohibit a judge of a court
of competent jurisdiction from issuing a search warrant or other court
order requiring a blood or urine test, or a combination thereof, of a
defendant charged with a violation of KRS 189A .010, or other statutory
violation arisinq from the incident, when a person is killed or suffers
physical injury, as defined in KRS 500.080, as a result of the incident in
which the defendant has been charged .
(Emphasis added.) Thus, a warrant may issue under this statute if the accused is
charged with a qualifying offense which resulted in death or physical injury .
Commonwealth v. Morriss, Ky., 70 S .W.3d 419, 421 (2002). At the conclusion of the
field sobriety tests the videotape clearly records Stack advising Appellant, "You are
under arrest for DUL" Although the subsequent arrest citation prepared by Stack
charged Appellant not with DUI but with murder in violation of KRS 507 .020(1)(b), he
was charged with violating KRS 189A.010 at the time the search warrant was obtained .
Even if he had been charged with murder, that offense would qualify as an "other
statutory violation arising from the incident." KRS 189A.105(2)(b). Since Mrs . Rains
died as a result of the incident, either charge authorized the issuance of the search
warrant. The statute does not condition the issuance of the warrant on the arrestee's
refusal to consent to the blood test. Obviously, once the warrant was served, the blood
sample could be drawn with or without Appellant's consent . Thus, the refusal to grant
Appellant's request to contact an attorney resulted in no prejudice in this case. Other
2 Even if Appellant had not been charged with a qualifying offense, Lassiter could have
obtained a search warrant subject to conventional search and seizure principles .
Morriss, supra, at 421 .
than refusing to take the test, Appellant made no incriminating statements while at the
hospital . An attorney could only have advised Appellant whether to consent to the
blood test. Once the warrant was served, the consent issue became moot. Even
though Stack's refusal to allow Appellant to attempt to contact an attorney was wrongful,
the error was rendered harmless by the issuance of the warrant and did not require
suppression of the blood test results .
Appellant's secondary claim with respect to the blood test is that the results
should have been suppressed because of Stack's alleged "perjury" about the events
leading to the administration of the test. While Stack testified at the pretrial suppression
hearing that he did not remember whether he had placed Appellant under arrest at the
scene and testified at trial that he had not done so, the videotape of the field sobriety
tests clearly shows that Stack placed Appellant "under arrest for DUl" at the conclusion
of those tests. However, Stack's erroneous testimony does not rise to the level of
perjury . Perjury requires proof that a person made a materially false statement which
that person did not believe . KRS 523 .020(1) . There is no proof that Stack did not
believe what he was saying during the suppression hearing or at trial was true. Thus,
we are unable to conclude that his testimony was perjurious as opposed to merely
mistaken . We also are unable to perceive how Appellant was prejudiced by this
testimony .
III. EVIDENCE OF APPELLANT'S REFUSAL.
Appellant asserts that it was error to admit evidence that he refused to take the
blood alcohol test. At trial, this refusal was mentioned in Stack's testimony when he
described why he called Lassiter to obtain a search warrant and also during Stack's
cross-examination during which he stated that he interpreted Appellant's statement that
he would not take the test until he had contacted his attorney as a refusal . Lassiter also
testified to the refusal when he described the telephone call he received from Stack
advising that Appellant had refused the tests and asking Lassiter to obtain a warrant.
The prosecutor briefly mentioned the refusal in his opening statement when describing
the sequence of events and again in his closing argument as evidence of Appellant's
own knowledge that he was intoxicated .
KRS 189A .105(2)(a)(1) requires that the arrestee be advised inter alia : "That, if
the person refuses to submit to such tests, the fact of this refusal may be used against
him in court as evidence of violating KRS 189A .010 ." Of course, Appellant was neither
indicted for nor convicted of violating KRS 189A .010 . And KRS 189A .105(2)(a)(1) does
not purport to establish a rule of evidence but only recites what an arrestee must be
advised before a refusal can be considered voluntary . Nevertheless, Appellant's
operation of a motor vehicle while intoxicated was a primary fact relied upon by the
Commonwealth to prove the aggravated wantonness element of wanton murder.
Obviously, an implied admission of intoxication as evidenced by a refusal to submit to a
blood alcohol test is highly relevant evidence that the person refusing the test is
intoxicated . The issue becomes whether the refusal was voluntary.
In order for there to be a refusal, there must first be a specific request that the
person take the test, not just an inquiry whether the person would like to take it.
Commonwealth v . Powers , Ky., 453 S .W .2d 260, 262-63 (1970) (interpreting former
implied consent statute, KRS 186 .565). Stack's request satisfied this requirement . In
addition to a valid request, there must also be a positive refusal to take the test. This
refusal can be express or implied by conduct . Commonwealth v. Hayden , Ky., 484
S.W.2d 97, 99 (1972) . Appellant refused to take the test but only because he was
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denied the right to contact an attorney . The only remaining issue is whether Stack's
violation of KRS 189A .105(3) in refusing Appellant's request to contact an attorney
before taking the test rendered the refusal involuntary, thus inadmissible as evidence of
his intoxication . This is an issue of first impression in Kentucky.
Two states have held that when a person is wrongfully denied the right to contact
counsel prior to submitting to blood alcohol testing and subsequently refuses to take the
test, there is no valid refusal . It was held in Kuntz v. State Highway Comm'r , 405
N.W.2d 285 (N .D . 1987), that if an arrestee is denied the statutory right to counsel prior
to submitting to a blood alcohol test, failure to take the test is not viewed as a refusal for
purposes of revoking that person's driver's license . Id . at 290 . The Missouri Court of
Appeals held in Brown v. Dir. of Revenue , 34 S .W.3d 166 (Mo . Ct. App . 2000), that a
refusal is invalid for purposes of revoking driving privileges if the arrestee was denied
his statutory right to contact an attorney . Id . at 175 . We agree. As Stack's request that
Appellant take the test did not meet the requirements of KRS 189A .105(3), and
Appellant's refusal was expressly predicated upon the denial of his statutory right to
counsel, his refusal was involuntary and should not have been admitted as evidence of
his intoxication . The Commonwealth's assertion that KRS 189A.105(3) does not apply
to Appellant because he was not under arrest is patently false. In the first place, the
statute does not condition the right to contact an attorney on whether the person has
been formally arrested . Secondly, as evidenced by the videotape of the field sobriety
tests, Stack had, in fact, placed Appellant "under arrest for DUI ."
However, the error in admitting Appellant's refusal as evidence of his intoxication
was harmless beyond a reasonable doubt . The evidence of Appellant's intoxication at
the time of the collision was overwhelming. In addition to Earls's testimony as to
Appellant's drinking, Appellant admitted to Stack that he had been drinking "basically all
day." Mr. Rains testified that Appellant smelled of alcohol at the scene . Centers
testified that she could smell the alcohol on Appellant from nine feet away, that
Appellant's eyes were only half open and "very bloodshot," and that he was "very well
intoxicated ." Mahan testified that Appellant smelled strongly of alcohol and was
unsteady on his feet. Stack testified that Appellant smelled of alcohol and that his
speech was "very slurred ." Finally, the videotape of the field sobriety tests permitted the
jurors to observe Appellant's condition for themselves . Considering the evidence as a
whole, we are unable to conclude that the result of this case would have been different
had the evidence of Appellant's refusal to take the blood test been excluded . RCr 9 .24;
Abernathy v. Commonwealth , Ky., 439 S.W .2d 949, 952 (1969), overruled on other
grounds by Blake v. Commonwealth , Ky., 646 S .W.2d 718 (1983).
IV. EVIDENCE OF THE VICTIM'S PREGNANCY.
Appellant asserts that it was error for the trial judge to permit the Commonwealth
to introduce evidence that Mrs . Rains was pregnant at the time of her death . Mr. Rains
testified as follows :
Q:
And that evening around 7:30 or so tell the jury what you and your
wife were doing .
A:
I had just gotten home from getting the dogs some food and she
was on the phone talking to her mother and she wanted to go for a
walk . She liked to walk and needed some exercise and we had
come out of the house to go for a walk and we were discussing the
baby and doing some remodeling to the house .
Q:
You say baby. You didn't have any kids then, did you?
A:
No. We'd been trying for eight years .
Q:
And you say baby. Was your wife pregnant?
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A:
We'd just found out she was pregnant .
In addition to this brief colloquy, a coroner's report introduced as a
Commonwealth's exhibit contained a typewritten "Yes" in a box containing the question,
"[W]as there a pregnancy in the past 12 months?" This evidence was not mentioned
again during the trial and was not mentioned during either of the prosecutor's closing
arguments . Appellant's only claim at trial was that the probative value of the evidence
was substantially outweighed by the danger of its undue prejudice . KRE 403 . On
appeal, he asserts that the jury may have punished him for killing two persons instead
of only one.
The outcome of a KRE 403 balancing test is within the sound discretion of the
trial judge, and that decision will only be overturned if there has been an abuse of
discretion, i .e . , if the trial judge's ruling was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles . Commonwealth v . English , Ky ., 993 S .W .2d
941, 945 (1999) (citations omitted) . We have held many times that it is not an abuse of
discretion to admit evidence that "humanizes," as opposed to "glorifies," the victim . See
McQueen v . Commonwealth , Ky., 669 S .W .2d 519, 523 (1984) ("It would, of course,
behoove the appellant to be tried for the murder of a statistic, but we find no error in
bringing to the attention of the jury that the victim was a living person, more than just a
nameless void left somewhere on the face of the community .") . See also Foley v.
Commonwealth , Ky., 953 S .W .2d 924, 937 (1997) (no error results when victim is
presented as more than a statistic) ; Bowling v. Commonwealth , 942 S .W.2d at 302-03
(same) . This brief reference to the victim's pregnancy did not unduly prejudice
Appellant . The prosecutor did not excessively expound on it, nor was it mentioned in
either the guilt phase or penalty phase arguments . Evidence that the victim was a
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parent, even when irrelevant, has been deemed harmless error. Nickell v.
Commonwealth , Ky., 565 S.W.2d 145, 147 (1978) (number of children that victim had is
irrelevant, but not prejudicial); Campbell v. Commonwealth , 289 Ky. 34, 157 S .W.2d
729, 731 (1941) (same). Testimony about each victim's life, occupation, marital status,
and number of children, which consumed about five minutes for each victim, was held in
Foley, supra, not to be reversible error. Id . at 937. More specifically, we and our
predecessor court have held that evidence that a murder victim was pregnant was
relevant to whom and what she was at the time of her death . Parrish v.
Commonwealth , Ky., 121 S.W.3d 198, 203 (2003) ; Wheeler v. Commonwealth , Ky., 121
S .W .3d 173, 181 (2003); Burnett v. Commonwealth , 172 Ky. 397,189 S .W . 460, 462
(1916) ("The physical and mental conditions and all circumstances surrounding the
parties at the time were necessarily competent on the trial of this case.").
As for Appellant's double-murder theory, the instructions clearly informed the jury
that Appellant could be convicted only of killing Mrs. Rains . We find no abuse of
discretion in the limited admission of evidence that the victim was pregnant at the time
of her death .
V. SUFFICIENCY OF EVIDENCE OF WANTON MURDER.
Appellant asserts it was error to deny his motions for a directed verdict of
acquittal on the primary offense of wanton murder, arguing that the prosecution did not
adequately prove the aggravating factor that he acted under circumstances manifesting
extreme indifference to human life . A person is guilty of wanton murder when:
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.
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KRS 507 .020(1)(b) . The term "wantonly" as used in this statute was clarified in Elliott v.
Commonwealth , Ky., 976 S.W .2d 416 (1998) . "The definition[] of 'wantonly' . . . make[s]
no reference to the defendant's state of mind with respect to his conduct, but refer[s]
only to his state of mind with respect to the result of that conduct or to the circumstance
which prompted the conduct ." Id. a t 419 . So, "[e]ven though he did not intend to kill, if
he was aware of and consciously disregarded a substantial and unjustifiable risk that his
conduct would result in the death of another person, he is guilty of second-degree
manslaughter or, if accompanied by the statutory aggravating circumstances, wanton
murder ." Id . The decision as to whether the aggravating circumstances (extreme
indifference to human life and grave risk of death to another) were present is best left to
the jury to decide. Brown v. Commonwealth , Ky., 975 S .W .2d 922, 924 (1998) (citing
Walden v. Commonwealth , supra note 1, at 105) ; Nichols v. Commonwealth , Ky., 657
S .W .2d 932, 935 (1983)). A directed verdict on a charge of wanton murder is proper
only when the evidence is insufficient to permit a reasonable juror to believe that the
defendant acted with extreme indifference to human life . Estep v. Commonwealth , Ky.,
957 S .W . 2d 191, 193 (1997).
[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 [wantonness] 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 Commentary) (quoting Model Penal Code § 201 .2 cmt . 2 (Tent.
Draft No. 9 1959)) .
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There was sufficient evidence here for the trier of fact to find that Appellant acted
wantonly under circumstances manifesting extreme indifference to human life. Walden ,
supra, held that evidence of the defendant's intoxication and extreme rate of speed was
sufficient to support a conviction of wanton murder by vehicular homicide . Id . at 104-05.
The defendant's level of intoxication at the time of the accident is a significant factor in
considering whether the evidence was sufficient to support a murder charge. Hamilton
v. Commonwealth , Ky., 560 S .W.2d 539, 542 (1977) (citations omitted) . As noted,
supra , there was substantial evidence in this case that Appellant was intoxicated at the
time of the accident . And there was evidence, i .e . , the statement Appellant made to
Earls in Jellico, Tennessee, that Appellant was well aware of the risk of driving while
intoxicated . There was also evidence that Appellant was driving his vehicle at a high
rate of speed when he lost control and struck the guardrail. Earls testified that Appellant
told him he was going to show Earls "what his car had," spun the tires, and drove so
fast that Earls feared there would be an accident . Centers testified that she heard
Appellant's vehicle approaching and estimated its speed at 65 to 70 miles per hour.
Trosper estimated the vehicle was still going 48 to 49 miles per hour when it went into
the ditch after striking the guardrail. On a motion for directed verdict, the court must
draw all fair and reasonable inferences in favor of the Commonwealth, as questions of
credibility and weight of the evidence are matters for the jury . Commonwealth v.
Benham , Ky., 816 S .W .2d 186, 187 (1991) . There was evidence in this case of both
intoxication and excessive speed from which a jury could reasonably infer an extreme
indifference to human life. Appellant was not entitled to a directed verdict of acquittal .
VI . CONSTITUTIONALITY OF KRS 507.020(1)(b) .
Appellant asserts that the wanton murder statute, KRS 507.020(1)(b), is
unconstitutionally vague. He incorrectly argues that "wantonness" is the equivalent of
intent (no one claims Appellant intended to kill Mrs . Rains) whereas "indifference to
human life" indicates a lack of intent, and that this vague language neither gives
adequate notice of what conduct is prohibited nor provides clear standards to law
enforcement officers. We rejected a similar challenge to this statute in Brown v.
Commonwealth, supra . The appellant in Brown also argued that the legislature failed to
establish standards for applying the statute and that the jury was left to decide each
case on an individual basis. We held that the phrase "extreme indifference to human
life" contained words of common understanding and, thus, the statute was not void for
vagueness . Id . at 925. Our views in that regard have not changed .
VII . PRIOR CONVICTION .
Appellant's final argument is that the trial court erred by allowing the
Commonwealth to introduce evidence of his 1971 convictions during the penalty phase
of the trial . Those convictions, pursuant to Whitley Circuit Court indictment number
000391, were for DUI (first offense), an offense punishable at that time only by fine,
KRS 189 .520(2), KRS 189 .990(10) (1970 statute versions), and involuntary
manslaughter in the first degree, a felony punishable by one to fifteen years
imprisonment . KRS 435 .022(1), repealed by 1974 Ky. Acts, ch . 406, § 336 . The record
of indictment number 000391 reflects that Appellant pled guilty to both charges on
February 3, 1972 . A court order signed by Judge Pleas Jones and entered that same
day further recites :
- 1 7-
The Court postpones the entry of the judgment on each of these pleas
until the 18th day of April, 1972, at which time this defendant is directed to
appear in the event he is not accepted in the military service.
It was stipulated at trial that Appellant was accepted into the United States Air
Force in April 1972. The record does not indicate that any sentence was ever imposed
for these offenses . There is a partially legible handwritten notation on the case jacket
that reads either, "Sentence & probation & Deferred" or "Sentence & probation & Defer,
J ." The notation is not signed and its author is not identified . We are unable to
determine its origin or to construe its meaning . Next to this notation are two other
handwritten entries that read :
I hereby dismiss the within indictment because there is insufficient
evidence to sustain conviction .
This 15 day of 11, 1974 .
/s/ Garrett [illegible]
Commonwealth Attorney
11-15-74 Motion to dismiss sustained .
/s/ J . B. Johnson, Jr .
Judge, W. C. C.
Judge Johnson also signed and entered a typewritten order dismissing the
indictment dated "October [sic] 15, 1974 ." Appellant's guilty pleas to these offenses
were admitted during the penalty phase of the trial under the authority of KRS
532 .055(2)(x)(2), which authorizes evidence of "The nature of prior offenses for which
he was convicted ." Technically, Appellant's pleas of guilty to the two 1971 offenses
were "convictions ."
The word [conviction] generally means the ascertainment of defendant's
guilt by some legal mode and an adjudication that the accused is guilty.
This may be accomplished by a confession by the accused in open court,
a plea of guilty or a verdict which ascertains and publishes the fact of guilt.
We believe in the majority of those cases and in the majority of
jurisdictions (although we have not counted noses), the word "conviction"
is not limited to a final judgment.
- 1 8-
Commonwealth v . Reynolds, Ky., 365 S.W .2d 853, 854 (1963) (holding that for
purposes of impeachment by evidence of conviction of a felony under CR 43 .07, it is
immaterial that no sentence was ever pronounced) . See also Thomas v.
Commonwealth , Ky., 95 S .W .3d 828, 829 (2003) (defendant was a convicted felon for
purposes of KRS 527.040 where he had been convicted but not yet sentenced for prior
offense) . Of course, it is also well settled that the Commonwealth cannot introduce
evidence of charges that have been dismissed or set aside. Robinson v.
Commonwealth , Ky., 926 S .W.2d 853, 854 (1996) ; Scrivener v . Commonwealth , Ky.,
539 S.W.2d 291, 293 (1976) ; Dial v. Commonwealth , 142 Ky. 32, 133 S .W . 976, 977
(1911) ("When, therefore, the judgment of conviction has been set aside by the court
rendering it, when it had jurisdiction to do so, the verdict stands as if judgment had not
been rendered .").
The trial judge held that Judge Johnson did not have jurisdiction to dismiss the
indictment in 1974 because the trial court lost jurisdiction over the convictions ten days
after entry of Judge Jones's order of February 3, 1972 . We disagree . The ten day
period within which to file a motion to alter, amend or vacate runs from the date of the
entry of the final judgment . CR 59.05 ; Commonwealth v. Gross , Ky., 936 S .W .2d 85, 87
(1996); Silverburq v. Commonwealth , Ky., 587 S .W.2d 241, 244 (1979). Criminal Rule
11 .04(1) provides now, as it did in 1972, that "[a] judgment of conviction shall set forth
the plea, the verdict or findings, the adjudication and sentence . . . . (Emphasis added .)
Until a final judgment was entered, the Whitley Circuit Court retained jurisdiction to alter,
amend or vacate Appellant's convictions . Thus, Judge Johnson had jurisdiction to
effectively vacate the convictions by entering the 1974 order sustaining the
Commonwealth's motion to dismiss the indictment.
- 1 9-
Even if Appellant's 1972 convictions had not been previously vacated, they still
would have been inadmissible at Appellant's trial of his 2001 offense . Since the 1972
convictions were never finalized by entry of a judgment, the time for appealing the
convictions had not expired .
It is the holding of this court that a prior conviction may not be
utilized under KRS 532.055 . . . unless:
(1)
The time for appealing the conviction has expired without
appeal having been taken, or
(2)
Matter of right appeal has been taken pursuant to § 115 of
the Constitution of Kentucky and the judgment of conviction has
been affirmed .
Melson v. Commonwealth , Ky., 772 S .W .2d 631, 633 (1989) .
The Commonwealth asserts that the error was waived when defense counsel
agreed to stipulate to the prior offenses in lieu of an introduction of official documents
pertaining to the 1971 indictment. We disagree . Appellant preserved his objection by a
motion in limine that was overruled by a verbal order of the trial court during the course
of the trial . KRE 103(d) . Defense counsel never withdrew the objection but only agreed
to the stipulation as a method of presenting the evidence to the jury.
Accordingly, Appellant's conviction of murder is affirmed ; however, the sentence
imposed for that conviction is vacated and this case is remanded to the Whitley Circuit
Court for a new sentencing phase of the trial in accordance with the contents of this
opinion .
Lambert, C .J . ; Johnstone, Stumbo, and Wintersheimer, JJ ., concur. Keller, J.,
concurs by separate opinion with Graves, J., joining that concurring opinion .
COUNSEL FOR APPELLANT :
Ron Reynolds
206 North Second Street
Williamsburg, KY 40769
COUNSEL FOR APPELLEE :
Gregory D . Stumbo
Attorney General
State Capitol
Frankfort, KY 40601
William Robert Long, Jr.
Assistant Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
RENDERED : MARCH 18, 2004
TO BE PUBLISHED
Auyrnur (gaurf -of ~ettfurkg
2002-SC-0486-MR
APPELLANT
LESTER E . COOK, JR.
APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE PAUL BRADEN, JUDGE
01-CR-148
V.
APPELLEE
COMMONWEALTH OF KENTUCKY
CONCURRING OPINION BY JUSTICE KELLER
I concur in the result reached by the majority opinion, but write separately as to
Part II (Blood Alcohol Test Results) . Although I agree with the majority opinion's
bottom-line Part II conclusion, i .e. , that Deputy Stack's wrongful refusal of Appellant's
request to contact an attorney before the administration of the blood test "was rendered
harmless by the issuance of the warrant and did not require suppression of the blood
test results(,]"' I emphatically disagree with the majority's suggestion that Appellant's
claim for suppression of the blood test results "would be a better argument if he had
actually consented to the blood tests and was claiming that the violation of the statute
negated his consent . ,2 Of course, the majority's commentary regarding a hypothetical
factual situation wholly distinct from the one actually presented in the case at bar is
nothing more than obiter dictum . My primary concern, however, is that the obiter
dictum in question is also inaccurate . This theoretical "better argument" for suppression
Cook v. Commonwealth , Ky.,
2
Id . at
(Slip Op . at
).
S .W.3d
(2004) (Slip Op . at
).
of alcohol concentration results - which, as I understand it, would be premised upon a
claim that the suspect's decision to submit to testing was involuntary because of a
denial of KRS 189A .105(3)'s statutory right to counsel - would be no "better" than, and,
in fact, would be just as deficient as, Appellant's own argument.
Just two years ago, in Commonwealth v. Hernandez-Gonzalez , 3 this Court shut
the door on this allegedly "better argument" when we recognized that a DUI suspect
has already impliedly consented to "one (1) or more tests of his blood, breath, and
urine, or combination thereof"4 simply by operating a vehicle within Kentucky "if an
officer has reasonable grounds to believe that a violation of KRS 189A.010(1) or
189 .520(1) has occurred . ,,5 This Court observed in Hernandez-Gonzalez that "[t]he
2000 amendment of [KRS 189A.103(1)] to read `has given his consent' makes it
unmistakable that a suspected drunk driver must submit to a test to determine blood
alcohol concentration . ,,6 We thus held that inaccuracies in the "pre-testing warnings"
established in the same Act that created KRS 189A.105(3)'s right to counsel could not
render a DUI suspect's submission to testing involuntary because, "as consent is
implied by law, one cannot claim coercion in consenting to a test . ,7 Accordingly, the
implicit premise upon which the majority opinion's supposed "better argument" rests,
i .e. , that a separate "voluntariness" inquiry is appropriate when a DUI defendant raises
questions regarding the process leading up to his or her decision to roll up his or her
3 Ky ., 72 S .W.3d 914 (2002) .
4 KRS 189A.103(1) .
5 Id .
6 Hernandez-Gonzalez , 72 S .W.3d at 915 .
7 Id . a t 916 .
sleeve, is a myth that was debunked in Hernandez-Gonzalez . And, the assertion that a
police officer's conduct can somehow negate a DUI suspect's decision to submit to
testing simply misses the point of implied consent . In my view, therefore, today's
majority opinion does the Bench and Bar a disservice with its obiter dictum that ignores
this Court's prior precedent and invites litigants to argue a theory that this Court has
already rejected .
Graves, J ., joins this concurring opinion .
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