Blades v. Commonwealth
957 S.W.2d 246
Ky.
1997
Check Treatment

*1 Lawson, person, to one and Kentucky When a deed is made The Evidence Law Hand- book, (3d ed.1993). 9.00, by another no use paid consideration is § the at 517 the latter unless or trust results in favor of through apply- sifting the and grantee takes a deed in his own name the standard, ing proper the we conclude that person paying without the consent of the given property, of the formal- the nature real consideration, grantee the or unless the title, way of ities transaction purchases of a the lands violation trust consummated, timing pur- was of the per- with the effects of another deeded chase, and the fact that Rakhman was the ... son. object bounty, Zusstone natural of Zusstone’s preclude a produced support a has been held to insufficient evidence to This statute pur- claiming to land finding anything this wife’s heirs from title transaction money to her gift by than a Zusstone to Rakhman. with her but deeded other chased knowledge consent. of the of is here- husband with her and decision Court Franklin, reversed, Ky. 169 S.W. by and this matter is remanded to Martin v. Mullins, entry for of a the Jefferson Court see also Mullins Circuit Fischer, opinion. with Kitchen consistent this 247 S.W.2d Ky. Hall v. COOPER, GRAVES, JOHNSTONE, Walton, LAMBERT, WINTERSHEIMER, JJ., Horn, Ky.App., 562 S.W.2d 319 In Horn concur. this the Court of held that express preclude proof of an does not statute STEPHENS, C.J., by separate concurs grantee hold agreement that the parol GRAVES, J., joins. opinion, in which person furnish- property in trust for the COOPER, J., concurring separate files a true, if that is Even the consideration. opinion, in which GRAVES evidence, much less clear and is no there JJ., WINTERSHEIMER, join. of the Court convincing evidence Horn, agree- express an Appeals in of such STEPHENS, Justice, concurring. Chief ment in this case. majority respectfully disagree with the I only it opinion, to the extent that does WINTERSHEIMER, JJ., GRAVES quote trial court. To remand this case opinion. join concurring this majority bore opinion, “Rakhman from the nonpersuasion,’ opposed as the ‘risk convincing’ stan- demanding ‘clear and

more proof required a trust.”

dard of to establish majority that the trial fully agree

I proof improperly applied the burden of

court this Court neither

in this case. being appel- Appeals, the Court of nor BLADES, Appellant, Lesley D. courts, finding. of fact is in the business late fact, men- well as those It is to that due Kentucky, COMMONWEALTH majority opinion, that I would tioned Appellee. Appeals and remand to Court of reverse the taking Circuit Court Jefferson No. 95-SC-979-DG. application proper standard. Kentucky. Supreme GRAVES, J., concurring joins opinion. this 30, 1997. Oct. Justice, COOPER, concurring. Rehearing Denied Jan. analysis gift set agree While I I majority opinion, believe forth 381.170, which by KRS ease is controlled as follows:

states *2 fact, Russellville, had, driving. Appellant testi- Orange, Charles R. Dueling fied that he had driven the truck lant. Simpson County earli- race track Grounds III, Chandler, General, Attorney Per- A.B. However, he day of the arrest. er on the Ryan, Appellate, ry T. Division Of- Criminal *3 day he explained at the end of the asked that General, Frankfort, Attorney George fice stepdaughter his drive because he was to Gleitz, County Attorney, Bowling Assistant problem developed His truck a intoxicated. Green, Appellee. highway, and he had started while on the Appel- walking get assistance. in order to GRAVES, Justice. not tell the truth lant testified that he did This matter is before Court on discre- troopers had been driv- when he told the he tionary review from the Warren Circuit ing, stepdaughter who protect in order to his Blades, Lesley con- Appellant, Court. was was married. oper- victed in the Warren District Court of ating a vehicle while under the testimony, a Appellant’s de- In addition to alcohol, second offense. He was fined $500 helped a he had fense witness testified that jail. days The and to seven sentenced park- a truck in the race track woman start to appeal affirmed on conviction was day because she question lot on the court and denied circuit the Court The unfamiliar with diesels. witness was presented: Four whether review. issues are passenger a in the stated that was to an intoxi- Appellant was entitled alcohol well, testified stepdaughter, The as truck. instruction; circuit court cation whether the she, had driven the Appellant, and not that should the conviction due to have reversed County. truck from the race track Warren respond to the Commonwealth’s failure to trial, jury Appel- At the close of appeal; evidence was whether sufficient ap- guilty of DUI offense. On conviction; lant second support Appellant’s affirmed the peal, the Warren Circuit Court failing to court erred in and whether trial court, by en- order phase judgment of the district guilt phase penalty bifurcate the and 29,1995. In October tered on June of the trial. discretionary re- denied Court of 6,1998, Kentucky two State On November subsequently granted dis- This Court view. Troopers complaints responded to citizens’ May Additional cretionary review in roadway in the staggering that a male was necessary in the course facts are set forth emergency that a truck with its flashers opinion. of this parked roadway. The operating was troopers Appellant walking down observed allegation error first Appellant’s County. Highway in Warren W jury on instruct the court’s failure to the trial questioning, Appellant strongly Upon place. Appel a public alcohol intoxication pass several of alcohol and failed to smelled was arrested that the fact he lant contends subsequently sobriety He was field tests. him walking highway entitled down the while public intoxication. placed under arrest for appar it is to such an instruction. troopers upon Appellant’s truck The came record, conceded ent from the The mile down the road. approximately one an in during argument, oral that as much highway truck in the center requested. was never struction Appellant ad- running. its was still its truck to location. mitted he had driven the case it is fundamental that a “It criminal jail, Appellant County submit- At the Warren duty ‘by the instructions to is the of the court his breathalyzer test which indicated ted opportunity for the give accused the percent. .234 concentration was blood alcohol any lawful merits of jury to determine the ” previously con- Appellant had Because v. Com he has.’ Sanborn defense which years, he was within five victed of DUI (1988) monwealth, Ky., 754 S.W.2d 534 charged with second offense. DUI (Quoting Curtis (1916)). However, trial, S.W. that At testified consistently pursu- that held Court has that the truck was his lant admitted 9.54(2), the rationale set forth assign Appellant relies on party ant to RCr cannot Commonwealth, Ky.App., 825 party Pence error to instructions unless the Court objection S.W.2d specific giving “makes a or the defendant’s conviction Appeals reversed give the court failure to an instruction before no evidence to grounds that there was jury, stating specifically the on the instructs the in- operating, while prove that he had been objects ground or matter to which he and the toxicated, in which he was found. objection.” the vehicle grounds of Chumbler Com- sitting monwealth, Ky., in Pence was found parked at a behind the wheel of his also Perdue v. see (1996) stop. response question to a truck and Davis Com- *4 (1990). officer, monwealth, admitted that police the defendant Ky., 795 S.W.2d 952 breathaly- A operating had been the vehicle. any is of indication that The record void content of test revealed a blood alcohol Appellant requested an intoxi- zer ever alcohol subsequent- Thus, percent. .26 The defendant was unpre- cation instruction. this issue is operating ly in the circuit court for convicted served and does not warrant consideration alcohol, a vehicle while under the upon review. 189A.010. KRS argues Appellant next that he was appeal, the of deter- On Court essentially by in entitled to a reversal default nothing mined that the circuit court because the Commonwealth to permitted a reasonable inference as how response appeal. to file a brief or to his failed truck long the had been at the defendant 76.12(8)(c) primarily on relies CR likely stop or that it was more that provides: stop in- drove to the truck while intoxicated after appellee’s If toxicated than he became brief has not been filed “[Tjhere (i) allowed, arriving. is no evidence to indicate may: within the time the court only of accept misconduct consisted appellant’s statement of the whether such (ii) correct; public operating a motor facts and drunkenness or issues reverse while drunk.” Id. at 283. judgment appellant’s reasonably if brief vehicle (iii) action; appears to sustain such or light Viewing the evidence in the most regard appellee’s as a failure confes- prosecution, there is still favorable to the sion of error and reverse the op proof appellant that the an absence of case, considering without the merits of the At his while intoxicated. erated added) (emphasis makes the existence of best the evidence slightly more elements of the offense these clearly only applies Rule 76 states that it they be without such probable than practice procedure in the evidence, enough. is not See but that Supreme 76.01. Court. CR Virginia, v. 443 99 S.Ct. Jackson gov- Appeals to the circuit court are instead (1979). 560 61 L.Ed.2d Nonetheless, by language erned CR 72. Pence, supra at 284. 76.12(8)(e), discretionary, authorizes of CR differ from Pence The facts this case automatic, relief. are not aware of We proximate time of arrest was more that the any requiring rule an automatic reversal The record re- to the time of the offense. appellee appel- file an eases where an fails to alcohol containers were found veals that no Appellant’s argument is without late brief. Further, no Appellant’s there were vehicle. merit. approximately liquor stores located on the of road that one mile stretch Appellant further takes issue is, nonetheless, quite improbable It grant his motion for a walked. trial court’s failure to Appellant could have become intoxicated that He contends that Com directed verdict. him to period of time it took in the short produced no evidence monwealth to the location vehicle, his truck and travel other than his leave he drove his that subsequently arrested. This he was he was first where when confession that to a reasonable conclusion leads arrested. acquittal should prior operating guilty, a directed verdict of lant became intoxicated Benham, v. granted. vehicle. be Commonwealth Ky., Commonwealth 816 S.W.2d Moreover, opinion are of the that we Sawhill, Ky., Trowel erroneously Pence is because it re flawed Commonwealth, Ky., 550 S.W.2d 530 quires certainty greater degree in DUI (1977). denying Ap error in There was no is in other areas of the cases than verdict. pellant’s motion for directed jury may It make law. is well-settled that a reasonable inferences from the evidence. beyond Although proof a reason DeHaven, Ky., Commonwealth v. crimi necessary to convict of a able doubt (1996); Carpenter offense, by 9.60 proof required nal RCr Barker v. Com extrajudicial an confession to corroborate monwealth, Ky. 199 S.W.2d 713 that, independent of the need not be such Mattingly confession, corpus delicti would establish the logical fail We S.W.2d 874 beyond a reasonable Appellant’s guilt or ly perceive a differentiation between rational delicti, doubt; corpus and that may that be DUI inferences drawn ie., actually of DUI was the offense crimes. cases this nature and other Clear committed, may be established consider *5 ly, if inferences from circumstantial evidence ing as the corroborat the confession as well crimes, felony in are sufficient to convict States, ing v. 181 evidence. Prichard United Preece, Ky., 844 Commonwealth S.W.2d (6th Cir.1950), affirmed, F.2d 326 339 385, (1992), evi 388 a circumstantial fortiori see 94 L.Ed. 1380 S.Ct. inferences therefrom dence and reasonable Commonwealth, Lacey jury of a are for a conviction misde sufficient Torcia, 1 Wharton’s S.W.2d C.E. offense, present as is in this case. meanor (15th Law, § Clark p. 172 ed. Criminal Thus, it we Pence to the extent that overrule 1993); Cooper, 1 Ken Callaghan Boardman in requires heightened level of evidence a (Criminal), tucky Instructions to Juries jury. to the order be submitted 1993). (4th 1.01B, §§ 2.05 ed. Anderson Thus, in if evidence even the circumstantial provides that a confession

RCr 9.60 standing not suffice to this case alone would not warrant a open not court will made doubt, it guilt beyond a reasonable by other corroborated conviction unless Appellant’s confes sufficed to corroborate The evidence that such an offense occurred. sion; evidence and the and the circumstantial presented of the follow in this case consisted together constituted considered confession ing: staggering in Appellant was observed jury. proof to take the case to the sufficient roadway; investigation it upon further Appellant intoxicat was determined Finally, Appellant argues that a new pass failure ed as demonstrated failed the trial court trial is because breathaly sobriety as the tests as well field penalty from guilt phase to bifurcate results; Appellant’s vehicle was zer that this at concedes phase trial. roadway the center of the court, nor district was not raised issue to the running; Appellant admitted still circuit court. appeal on the vehicle to its that he had driven unpre- Notwithstanding is that this issue than suffi Clearly, there was more location. served, unpersuasive. it Dedic is also cient circumstantial (1996), Commonwealth, Ky., 920 S.W.2d 878 RCr requirement of satisfy the corroboration DUI trials held that misdemeanor reason this Court jury to draw the 9.60 and allow the time of at the oper must be bifurcated. Appellant had been inference that able was no consti- Appellant’s trial there ating his while under the statutory requirement for the bi- denial tutional or review of a standard for alcohol. Our DUI trials. furcation of misdemeanor on directed verdict based of a motion for Ratliff if, Ky.App., 719 S.W.2d under the evidence is that insufficient Ky., 634 whole, clearly un Carver v. it be a evidence as seek- simply is jury find for a reasonable n into not have been admitted advantage to take of a new decision Blades should to his it applicability which has no was uncorroborated. retroactive evidence because trial. now-overruled It is this scenario that the reasons, foregoing For the Commonwealth, Ky.App., Pence v. cases of and conviction Circuit Court Warren (1991) v. Common- and Wells affirmed. wealth, Ky.App., in each of sought to address. The evidence COOPER, GRAVES, LAMBERT just guilt cases was as consistent those WINTERSHEIMER, JJ., concur. Thus, were innocence. the cases as with jury there was insuf- taken from because STUMBO, J., separate dissents finding jury support evidence to ficient STEPHENS, C.J., opinion in which In the beyond a doubt. guilt reasonable Justice, KEANE, join. Special MARGARET case, evidentiary rul- proper once the instant J., JOHNSTONE, sitting. not made, then a should ing was directed verdict STUMBO, Justice, granted. I would reverse dissenting. have been Appellant. conviction majori- Respectfully, I dissent. The must ty precedent has tossed aside more than ten STEPHENS, C.J., and MARGARET years ignored old the rules of KEANE, Justice, Special joins this affirming pro- this conviction. RCr 9.60 dissenting opinion. follows: a defen- vides as “A confession of dant, court, open unless made in will accompanied by

warrant a conviction unless proof that

other such an offense was commit- examined, with-

ted.” When evidence is *6 confession, considering

out there is not

enough left to fulfill the corroborative evi- requirement. found in an

dence Blades was roadway. walking state

intoxicated on the KOVACS, M.D., Appellant, away, car its Andrew J. His some distance on, parked roadway. Blades drinking he had Duel- testified that at George FREEMAN and Oreida track, step- got race Grounds so Freeman, Appellees. daughter step- to drive him home. daughter independent and an witness Freeman, George FREEMAN and Oreida that she did indeed drive the testified Cross-Appellants, grounds of Both Blades from the the track. stepdaughter that the vehi- and his testified step- began that the cle to malfunction and Roger LANE, Andrew Dennis M.D. and catching ride daughter help, left to obtain Kovacs, M.D., Cross-Appellees. J. Dueling passing car Grounds. back to 96-SC-420-DG, Nos. 96-SC-1063-DG. puts Blades in an one the wheel No behind condition. If the statement intoxicated Kentucky. Supreme Court of simply gave disregarded, there is Blades he committed the no evidence Dec. driving influence. The offense of under the proof that law is clear. There must be case to corroborate

the crime was committed v. Common-

out-of-court confession. Wilson

wealth, Dolan v. Commonwealth, Ky.,

Here, without there is no of a crime made The statement

Blades’ statement.