Appellant was convicted in the Scott Circuit Court of one count of wanton murder and one count of complicity to first-degree robbery. He was sentenced to concurrent terms of forty years for the murder conviction and twenty years for the robbery conviction. He appеals to this Court as a matter of right, Ky. Const. § 110(2)(b), and raises three claims of error: (1) failure to change venue; (2) introduction of victim impact testimony during the guilt phase of the trial; and (3) double jeopardy.
On September 19, 1994, Appellant and Joshua Cheng were driving through Kentucky on their way from South Carolina to Michigan when they ran out of gas, oil, and money. According to Appellant, Cheng decided to rob the Shell One Stop near 1-75 in Scott County and forced Appellant to participate in the robbery against his will. According to Cheng, the two mutually agreed to rob the store, but not to shoot the clerk unless she did something, such as going for a gun or pushing an alarm. The .22 caliber revolver used in the robbery belonged to Appellant, but Cheng actually carried the weapon into the store and shot and killed the clerk dining the course of the robbery. Appellant then emptied the contents of thе cash register into a pillowcase and the two men fled the scene. They later divided the money and proceeded on to Michigan. In January 1996, Appellant and Cheng were arrested in South Carolina and returned to Scott County for trial. In June 1996, Cheng entered a plea of guilty in exchange for a recommendation of life in prison without benefit of probation or parole for twenty-five years for the murder, and twenty years for the robbery, with the sentences to run concurrently. Appellant’s trial was held in January 1997.
I. FAILURE TO CHANGE VENUE.
Appellant claims that the pre-trial publicity in this case, both by the media and by word of mouth, prevented him from obtaining a fair trial. With his petition to change venue, Appellant filed twelve newspaper articles and the results of a poll taken of Scott County residents. The dates and number of the newspaper articles are as follows:
Month/Year of Article Number
Januaryl996 5
Februaryl996 1
Aprill996 2
Mayl996 2
Junel996 2
The artiсles generally recounted the facts of the murder and robbery, that Appellant and Cheng had been arrested in South Carolina and indicted in Scott County, and that Cheng entered a guilty plea to the murders and was expected to testify against Appellant. All of this information was admissible and was introduced at trial. Appellant did not deny participating in the robbery, but relied on the defense of duress. Thus, the media publicity only informed prospective jurors of uncontested facts, most of which would be revealed to them during voir dire.
The poll submitted in support of the petition for a chаnge of venue showed that 85.7% of Scott County respondents had some familiarity with the case and 61% expressed an opinion about it. However, 79% believed that Appellant could get a fair trial in Scott County. Each of the fifteen jurors seated to hear the case had heard about оr discussed it, but none purported to have an opinion as to Appellant’s guilt or innocence. Only two prospective jurors were challenged for cause *325 and both were excused. Another was removed by the trial judge sua sponte after the juror advised that he had formed an opinion abоut the case.
A change of venue is not warranted by the mere fact that jurors may have heard, talked, or read about the ease, absent a showing that there is a reasonable likelihood that the accounts or descriptions of the investigation and judicial proceedings have prejudiced the defendant; and prejudice must be shown unless it may be clearly implied in a given case from the totality of the circumstances.
Montgomery v. Commonwealth,
Ky.,
“Change of venue is a matter within the sound discretion of the trial court and will not be disturbed on appeal absent a showing of abuse of discretion.”
Bowling v. Commonwealth,
Ky.,
II. VICTIM IMPACT EVIDENCE.
The victim’s mother was called to the stand for the purpose of “humanizing” the victim. She testified briefly that the victim wаs twenty-two years old, employed, and the mother of two children, ages one and three. When asked how the children were doing, she replied that the younger child was doing fine, but the older child was having some psychological problems coping with the absence of his mother.
The introductiоn by the prosecution of “a certain amount of background evidence regarding the victim is relevant to understanding the nature of the crime.”
Foley v. Commonwealth,
Ky.,
A murder victim can be identified as more than a naked statistic, and statements identifying the victims as individual human beings with personalities and activities does not unduly рrejudice the defendant or inflame the jury. Just as the jury visually observed the appellant in the courtroom, the jury may receive an adequate word description of the victim as long as the victim is not glorified or enlarged.
Bowling v. Commonwealth, supra,
at 302-03 (1997) (citation omitted). However, while the Commonwealth is entitled to shоw the jury that the victim was not a mere statistic, but a living person,
McQueen v. Commonwealth,
Ky.,
In
Payne v. Tennessee, supra,
the testimony was virtually identical to that given by the victim’s mother in this case,
i.e.,
that the child missed his mother and baby sister.
Id.
at 826,
[T]he testimony illustrated quite poignantly some of the harm that Payne’s killing had caused; there is nothing unfair about allowing the jury to bear in mind that harm at the same time as it considers the mitigating evidence introduced by the de-fendant_ “It is an affrоnt to the civilized members of the human race to say that at sentencing in a capital case, a parade of witnesses may praise the background, character and good deeds of Defendant (as was done in this case), without limitation as to relevancy, but nothing may be said that bears upon the character of, or the harm imposed, upon the victims.”
Id.,
quoting
State v. Payne,
In fact, Appellant was permitted to introduce substantial mitigating evidence during the guilt phase of this trial. His expert psychologist testified by proxy that Appellant was married, had a child of his own, and wanted more сhildren. The psychologist also testified that Appellant engaged in daily prayer and Bible reading, attended religious services twice a week, sang in the choir, and desired to serve his country through military service. In support of his opinion that Appellant was not a violent person, the рsychologist testified that Appellant told him: “I wish I had lived for the Lord better when I was younger instead of looking just to get by with it.” In addition to the psychologist, Appellant produced two religious ministers and a local South Carolina law enforcement officer to testify to his good character. In viеw of this barrage of mitigating evidence about Appellant’s own family and good character, we do not believe that an isolated comment about the impact of the victim’s death on one of her children so prejudiced Appellant as to deny him a fair trial. Thus, the admission of this еvidence was harmless error. RCr 9.24;
Harman v. Commonwealth,
Ky.,
Appellant also complains that the prosecutor commented during closing argument about the pain and suffering endured by the victim’s family bеcause of her death. However, there was no objection to this comment; thus, this claim of error is not preserved. RCr 9.22;
Hurt v. Commonwealth,
Ky.,
III. DOUBLE JEOPARDY.
The instruction on wanton murder informed the jury that it could convict Appellant of that offense if it believed beyond a reasonable doubt that by “participating in the robbеry,” Appellant was wantonly engaging in conduct which created a grave risk of death to another and that he thereby caused the victim’s death under circumstances manifesting an extreme indifference to human life. KRS 507.020(l)(b). Defense counsel specifically stated on the record that hе had no objection to this instruction or to the instruction on first-degree robbery. However, immediately upon the return of the guilty verdicts, counsel moved to dismiss the robbery conviction on double jeopardy grounds. He posits that under the wording of the wanton murder instruction, robbery should have been cоnsidered not as a separate offense, but as a lesser included offense of wanton murder. KRS 505.020(l)(a).
Prior to the adoption of the penal code, Kentucky espoused the concept of “felony murder,” which was usually described as follows:
Homicide is murder if the death ensues in cоnsequence of the perpetration or attempted perpetration of some other felony *327 unless such other felony was not dangerous of itself and the method of its perpetration or attempt did not appear to involve any appreciable human risk.
R. Perkins,
Criminal Law
36 (1st ed. Foundation Press 1957). The intent to commit the dangerous felony provided the element of intent necessary to convict of the homicide. “The turpitude of the act contemplated is by implication of law transferred to the homicide which actually is committed so as to make the lattеr offense a killing with malice, contrary to the real fact of the case as it appears in evidence.”
Tarrence v. Commonwealth,
Ky.,
With the adoption of the penal code, the felоny murder doctrine was abandoned as an independent basis for establishing an offense of homicide in Kentucky. KRS 507.020 (1974 Commentary). However, participation in a dangerous felony may constitute wantonly engaging in conduct creating a grave risk of death to another under circumstances manifesting an extreme indifference to human life, thus permitting a conviction not only of the dangerous felony, but also of wanton murder. Intent is not an element of wanton murder. Thus, the conviction of robbery is unnecessary to prove the mens rea required to convict of murder. Rather, the facts proving the element of endangerment necessary to convict of first-degree robbery may be the same facts which prove the element of aggravated wantonness necessary to convict of wanton murder. Such does not constitute double jeopardy.
In
Commonwealth v. Burge,
Ky.,
The same argument raised here by Appellant was also rejected in
Kruse v. Commonwealth,
Ky.,
Perhaps the instruction on wanton murder would have been more aсcurate if it had described the dangerous conduct constituting aggravated wantonness as,
e.g.,
“agreeing to participate in the commission of a theft knowing that another person would be threatened with a deadly weapon during
*328
the course of that theft,” rather than as “participating in the robbery.” However, defense counsel, for strategy reasons, specifically waived any objections to the guilt phase instructions as written. The obvious strategy was to leave the robbery count in the instructions in the hope that if the jury did not acquit, it might convict only of robbery, but not murder; then clаim double jeopardy if the jury returned convictions of both offenses. However, convictions of both wanton murder and first-degree robbery do not constitute double jeopardy under the facts of this case. Any claim of error in the wording of the wanton murder instruction was waived by the failure to either object or tender a desired instruction. RCr 9.54(2). There was no palpable error, RCr 10.26, because requiring the jury to find both elements of robbery in order to convict of wanton murder, instead of just the assault element, placed a higher burden of proof on the Commonwealth and thereby inured to the defendant’s benefit.
Baze v. Commonwealth,
Ky.,
Accordingly, the judgments of conviction and sentences imposed by the Scott Circuit Court are affirmed.