Brown v. Commonwealth

BROWN, Appellant, Demond T. KENTUCKY, OF

COMMONWEALTH

Appellee. Brown, Appellant,

Demond Kentucky, Appellee.

Commonwealth 2003-SC-0235-MR,

Nos.

2003-SC-0716-TG.

Supreme Kentucky. Court 16, 2005.

June July

As Modified 2005. Nov.

Rehearing Denied Clare, Ad- Bridges Public

Lisa Assistant vocate, Advocacy, Department Public Frankfort, for Appellant. Counsel Stumbo, General, Gregory Attorney D. Attorney Ferguson, D. Todd Assistant General, General, Attorney Crim- Office Division, Frankfort, Appellate inal Counsel Appellee. for COOPER, Justice. 15, 2002, night January

On the De- Hopkinsville, Kentucky, Appellant, Brown, T. his Ford Crown mond drove automobile into intersection Victoria red and collided with anoth- against a operated by Debra Conklin er automobile occupied teenage and also Conklin’s Megan. Timothy daughter, Brown Leavell, passengers Appellant’s Laticia vehicle, injured were as result collision; Megan Debra Conklin con- subsequently killed. jury of victed a Christian Circuit Court murder, KRS counts of wanton two 507.020(l)(b), two of wanton counts KRS endangerment degree, the first twenty received 508.060. He sentences con- for each murder years imprisonment viction year imprisonment and one Kaylor Michael was also employed at endangerment conviction, each wanton factory. all the Meritor factory He left the at run concurrently for a twenty total of the same time Appellant, but in a sepa- years. appeals He to this Court as a rate vehicle. There was evidence at trial right, Ky. 110(2)(b), § matter of Const. briefly traveled error, asserting side-by-side high three claims of reversible speed. rate of (1) viz: denial of his motion for a directed record also shows that changed acquittal verdict of upon the wanton murder lanes approaching a Monte Carlo au- (2) charges; grant rear, failure to him a new tomobile from the and continued alleged juror misconduct; trial due to at a traveling high rate of approxi- (3) improper redirect examination mately car-length and one Appellant’s behind closing argument by prosecutor. Kaylor vehicle. testified that he slowed error, no Finding we affirm the judgment his vehicle to turn off of Pembroke Road trial court. onto the Bypass immediately before the place.

crash took Thomas, I. Adrian SUFFICIENCY OF the driver of the Monte Carlo, THE passed by EVIDENCE. testified that the two cars him sitting “like was [he] still.” Kelvin On a motion for a directed ver Quick, passenger, Thomas’s observed that dict acquittal, all fair and reasonable one of the television monitors in Appel- inferences are drawn in the Common operation lant’s vehicle was in as the vehi- wealth’s favor. Commonwealth Ben approached cle the intersection. Although ham, On Leavell Timothy Brown both testified review, appellate whether, we determine that the monitor off was when the collision whole, under the evidence viewed as a it occurred, they agree did not as to when it would clearly unreasonable a jury Quick’s had been turned off. Based find the defendant guilty. Commonwealth testimony, jury was entitled to infer Sawhill, 5 (Ky.1983). that the monitor on. was There undisputed testimony was establish that, ing night on the in question, Appel As Appellant approached the intersec- tion, lant picked up and his brother Leavell light he saw that the traffic in his factory from the Meritor Nevertheless, when her work direction was red. he did approximately shift ended at p.m. speed, 10:00 not slacken believing his that he Appellant i.e., had two television monitors could red light, “time” the that automobile, mounted one on the change would his favor before he automatic gearshift, transmission and the entered Appellant the intersection. admit- passenger-side other in the undisputed dashboard. ted and it is that the was Appellant left factory, the Meritor turned still red when he entered the intersection Road, onto Pembroke applied traveled toward and that he never his brakes. Jen- point Kaeferle, where Pembroke Road intersect waiting nifer who was with her King, By ed with the Martin Luther fight opposite Jr. husband at the red on the pass, intersection, where the fatal place. crash took side of the that testified her There was evidence from which Appellant’s husband observed vehicle and Appellant could infer that driving at a Conklin’s vehicle approaching intersec- speed rate of between five and fifteen tion at the same time and remarked that a fifty-five per miles hour over the Kaylor, miles collision was about occur. who hour preparing right limit. to turn somewhere vehicle, consciously disregards Appellant’s also testified aware behind unjustifiable each risk that approaching he saw vehicles that substantial knew that a was immi- circum- other and collision will occur or that the the result There was no evidence adduced nent. be of such exists. risk must stance indicating that or his Appellant trial either disregard degree that a nature ever saw vehicle. passengers the Conklin deviation gross constitutes a thereof not see The inference did from the standard of conduct collision reinforced impending in the person reasonable would observe that his marks the fact vehicle left skid situation. impact. prior point on the road added.) (Emphasis occur, Although saw the accident course, Of to be convicted home, scene, immediately left the drove 507.020(l)(b), under wanton murder KRS vehicles, and changed then drove back egregious must have had a more the scene of the accident. testified than mere mental state wantonness. at the spoke any that he never officer Commentary accom- explained As night, on the scene. Based events of the culpable panying the Penal Code ... charged count of Kaylor was with one as state defined in KRS 501.020 mental endangerment, he entered an wanton and more, ... without will suf- wantonness on the plea1 morning Appellant’s

Alford in manslaughter fice for a conviction of Kaylor to trial. The Commonwealth called degree not for murder the second and, testify during during its case-in-chief because, murder, qualify capital a as examination, prosecutor redirect elicit- offense, be fur- accompanied it must testimony ed about recross plea. On manifesting circumstances extreme ther examination, Appellant’s asked counsel indifference to human life. he had wrong. what done concerned, far as I responded, “As I was Commonwealth, 875 McGinnis v. S.W.2d anything wrong, got didn’t do but it start- (internal 518, 520 citations I racing, ed somehow that I in when omitted), other quotations overruled on fact wasn’t.” Commonwealth, by Elliott grounds 416, (Ky.1998). It is the ele- person guilty

“A is ... of murder when: human of “extreme indifference to ment (b) to, Including, but not oper- limited to the life” that elevates wanton homicide ation a motor vehicle under circum- culpability intentional same level manifesting stances extreme indifference homicide. life, he wantonly engages to human

conduct which risk of grave creates a a kind of homicide “There is [wanton] person thereby death to another ... fairly distinguished cannot be causes the death of another KRS person.” [intentional- from homicides committed added). 501.020(B) (emphasis 507.020 KRS an ly]- presupposes ... [Wantonness] “wantonly,” defines as follows: of the creation of substantial awareness risk, a a to be person wantonly respect great A acts risk too with homicidal justifiable purpose by any to a described deemed valid result or circumstance defining an he is that the actor’s conduct serves. Since a statute offense when Referencing Supreme yet Court's decision consent to the conviction 1. innocence 25, 36-37, Alford, penalty. in North Carolina 400 U.S. S.Ct. imposition of Id. at (1970), 27 L.Ed.2d S.Ct. at 167. "Alford plea” permits a his defendant to maintain

risk, however, degree is a matter of debilitating aware, effects of which she was the motives for risk may creation crossed the center pass line to another variation, infinite some formula is zone, no-passing automobile failed to identify needed to the case where [wan- lane, return her proper vehicle should be tonness] assimilated to [inten- caused a fatal collision. Id. at tion], conception that the draft em- Love v. 55 S.W.3d 816 ploys is that of extreme indifference to (Ky.2001), we held the evidence sufficient signifi- value human life. The speeding, where defendant was cance of is that ... [intention] it demon- intoxicated, and did not slow down or at precisely strates such indifference. tempt to stop upon seeing police car Whether [wantonness] is so extreme blocking the attempted road but to swerve it demonstrates similar indiffer- around the police car while traveling that, view, ence not a question in our reported seventy ninety miles hour. clarified; can be it must be further left Id. at 827. In Cook v. ” directly to the trier offacts. (Ky.2004), S.W.3d 351 we held the evi (1974 cmt.) KRS 507.020 (quoting Model dence sufficient where the defendant was (Tentative § Penal Code 201.2 cmt. 2 intoxicated, admitted he was aware of the 1959)) added). Draft (emphasis No. See intoxicated, risk of driving while and lost also Nichols v. 657 control operating of his vehicle while it at a high rate of because he wanted to We have held that there was sufficient show passenger “what his car had.” support finding evidence to of this men Id. at 362-63. state, tal sometimes “aggra referred wantonness,” vated v. Graves Common While the defendant in each of wealth, (Ky.2000), 17 S.W.3d 863 a the preceding cases was impaired by an number of cases involving unintentional substance, intoxicating intoxication is not a vehicular homicides. In Hamilton v. Com prerequisite finding to a of extreme indif monwealth, (Ky.1977), 560 S.W.2d 539 we ference to human life in a vehicular homi held that the evidence was sufficient where cide Commentary case. The to KRS defendant, while under the influence of 507.020 is type instructive as to what alcohol, drove his vehicle at a rate exceed conduct might aggravated constitute wan ing speed limit and entered an inter “Typical contemplated tonness: of conduct against light. section a red Id. at 543. In for inclusion in ‘wanton’ murder is: shoot Walden crowd, ing into a an occupied building or (Ky.1991), grounds overruled on by other automobile; an occupied placing a time Burge, Commonwealth v. 947 S.W.2d public place; derailing bomb in a or a (Ky.1996), upheld a wanton murder (1974 speeding locomotive.” KRS 507.020 conviction where the defendant lost control cmt.). examples Each of these involves an of his vehicle and crossed the center line activity poses high that a risk to human operating while his vehicle under while life, undertaken in or directed a toward high influence of alcohol and at a rate of place beings present; where human are speed. Id. at 105. In Estep Common yet requires none of intoxication. In them wealth, (Ky.1997), 957 S.W.2d 191 we held other words: that the evidence was sufficient where the Setting this conduct from behavior operated apart defendant a motor vehicle at a high ingesting rate of after five dif that would not warrant an unintentional prescription drugs, following ferent one of which had murder conviction are (i) (Ky.2005), that is risk characteristics: homicidal (ii) high; a acted under circumstances exceptionally person circumstances that human clearly manifesting the actor show extreme indifference known to risk; a vehicle while by operating motor magnitude awareness of life (iii) a in the vehicle passenger or social with minimal non-existent intoxicated when, any he did statute utility though conduct not violate conduct. Such 189A.010(1),he also was aware- than KRS reflects more than mere other plainly stop a accelerating away from and conscious of a sub- observed disregard ness speed, than normal rate of unjustifiable sign higher risk of death. at a stantial officer high signaled police for life and when disregard It manifests a over, lights turned before pull what the common law chose he off his evinces Obviously, Appel- at 198. depravity stopping. of mind heart. Id. call high- in this lant’s conduct case exhibited Brown v. extreme er level of indifference (Ky.1998) (quoting G. Lawson Robert human life than that exhibited value Fortune, Kentucky H. & William Criminal if intend Appellant Even did not Ramsey. 2(c)(2), (1998)). Law, § 8— light, red aware of to run the he was inter- entering The homicidal risk of disregarded that the intentionally the risks against high a red at a rate of section change in his favor before light would obviously high. every inter- speed is Not intersection, that if he ran he entered the Pre- regulated light. section is a red might another red he collide with traffic sumably, such control devices are so, vehicle, and, persons might if installed at intersections where there is killed. purpose volume of traffic high and for points out that there was vehicles from preventing approaching actually that he saw the Conklin evidence perpendicular directions from simulta- approached the intersection. vehicle as neously entering the and col- intersection However, there was evidence substantial liding. magni- aware of the readily that the Conklin vehicle was visible tude of the risk. He on cross- admitted Road, to the other drivers on Pembroke that he light examination knew Kaylor, and from which including evidence and approached red as he the intersection infer reason jury Appel- could that the entering the by against that intersection see it he was lant failed to was because that light, disregarded the red the risk ap- of the watching instead television driving through another vehicle would be proaching traffic. at the Appel- the intersection same time. that

lant also admitted he was aware is argues that if this evidence Appellant kill resulting might that a collision risk con support murder sufficient wanton Finally, of another occupants vehicle. viction, every then traffic violation will Appellant’s ve- utility driving social his endan charge converted into of wanton red against hicle into the intersection necessarily any germent, as violation will no ex- light was nonexistent. He offered human life. indifference to involve extreme not, e.g., for his conduct. cuse He In disagree. Johnson v. Common We rushing dying person hospital. to a wealth, held (Ky.1994), that entered “Extreme to human life” mere evidence the defendant indifference to be against light a red of wanton an intersection also element the offense support a wanton murder degree. KRS insufficient to endangerment first (“Evidence 508.060(1). in Ramsey Id. recently We held conviction. may troduced ... that he have run a red an affidavit sworn Juror 25 and a news light.”)- There was no other evidence of paper article in the Louisville Courier- improper driving or conduct on the defen 4, 22, quoting Journal Jurors Ap part. dant’s Id. See also Commonwealth pellant alleges that rights his to a fair trial Mitchell, impartial jury were prejudiced when (mere failure to secure infant child re jury improperly extrajudi considered system straint in violation of KRS deliberations, during cial evidence its 189.125(3) support insufficient to even a juror when at least one withheld material conviction). reckless Appellant’s homicide during information voir dire. We review substantially conduct was more than a the trial Appellant’s court’s denial of new mere traffic violation. In addition to driv trial motion for abuse of discretion. Jill at a ing exceeding rate limit and son v. violating signal, a traffic there was sub stantial evidence that Appellant was Extrajudicial A. evidence. watching television rather than monitoring the traffic at the intersection and that he affidavit, reported his Juror 25 attempted to “time” the traffic de juror, that another whose name he did not spite the fact that it remained red at all recall, jury told the during deliberations during Moreover, times his approach. that he had heard a rumor in the commu from the testimony regarding the manner nity that Appellant Kaylor racing were and, Appellant Kaylor which operated approached the intersection of their Kaylor’s vehicles and con unusual Pembroke Road and the Martin Luther collision, duct after jury could rea King, Bypass. Jr. In the aforementioned sonably have inferred that Appellant and article, newspaper 22 questioned Juror racing during im period why Kaylor left would have the scene of mediately preceding the collision and that the accident and later entered the Alford ran the red to “outrun” plea if he telling had been the truth about Kaylor, realizing had racing allegations. The article also Bypass. slowed down to turn onto the quoted Juror 4 as stating his belief While the evidence was no means over Kaylor and Appellant racing had been whelming points, on these say we cannot reiterating Juror 25 allegation that an as a matter of law that it was unreasonable juror unidentified had mentioned rumors beyond for the to believe a reasonable racing during deliberations. The trial doubt that Appellant acted under circum judge evidentiary hearing held an at which stances manifesting extreme indifference opportunity was afforded the Nichols, to human life. 657 at S.W.2d 935. present juror additional evidence mis conduct, solely upon relied but II. ALLEGED JUROR newspaper Juror 25’s affidavit and the art MISCONDUCT. icle.2

Appellant claims the trial judge in overruling juror erred “A his motion for new cannot be examined to establish trial, trial. premised upon The motion was a ground except alle for a new to estab- gations juror misconduct supported lish that the verdict was made lot.” ertheless, Hearsay generally is inadmissible as evi because the Commonwealth failed support evidence, dence in of a motion for new trial. object to to the use of this will 1101(b) (d); See KRE Brown v. Common Appellant's address the merits of claims. wealth, 731, 490 S.W.2d 732 Nev

429 sharp contrast with long- way. This stands in to the 10.04. We adhered RCr Doan, juror “con juror testimony gen- question is standing rule that where re incompetent impeach a verdict. erally experiment an out-of-court ducted See, 702 v. e.g., jury Gall findings to the ported her testimony 37, (Ky.1985) (juror’s 44 S.W.2d at 733. Id. expert of an witness.” manner defen- jury improperly considered that Gladden, 363, U.S. v. 385 also Parker See eligibility parole mental illness and dant’s 468, 470, 363-64, 17 L.Ed.2d 420 87 S.Ct. incompetent); during deliberations was (bailiff (1966) delibera jury during told the Grace v. a “wicked that the defendant was tions swearing that affidavit any that fellow,” he was guilty, that (juror’s incom- agree not the verdict was she did guilty would finding defendant error Commonwealth, petent); v. Jones Court); Mat by the Supreme be corrected (Ky.1970) (juror’s affidavit States, 140, 142-43, v. 146 U.S. tox United jurors matters swearing that considered (1892) 50, 51-52, 36 L.Ed. 13 S.Ct. during in evidence deliberations not (bailiff remarks inappropriate made incompetent). guilt regarding the defendant’s jurors (6th Brigano, F.3d 722 In Doan v. that the third man informed them this was Cir.2001), as abrogated grounds on other also, killed; newspaper article he had by Maples Stegall, 340 F.3d recognized strength on the of the evidence commented (6th Cir.2003), the Court United States into brought defendant against the held an Appeals Sixth Circuit presence read jury room and aloud interpretation of Ohio Rule of Evidence Ne jury); Camp 606(B) precluded of an consideration (1949) 109,111-12 Ky. attesting to in- affidavit outside improper (one juror during told another delibera jury contrary on the to clear- be fluence had the advice of a sought tions that she ly Supreme established United States not advised her that it would priest who precedent. Court Id. at 731. penalty). the death impose a sin to contends that Juror 25’s affidavit 25’s affidavit contains evidence Juror statements to the demon- Courier-Journal influence, juror that a only of outside subjected to such strate that his a matter that had heard elsewhere about disagree. Kay- influence. outside We testimony. during mentioned trial was also trial, lor at “it started some- got testified jurors’ are the other statements cited Nor racing, I I that I was which wasn’t. how influence. by Appellant evidence of outside A where it from.” rea- don’t know came merely a re- Each of these statements interpretation testimony is sonable of this racing that to an inference of could sponse Appel- that there were rumors that he and reasonably from the evidence be drawn racing. According lant had Juror been Therefore, trial. because presented juror only that unidentified stated not establish juror statements do these that the two had heard rumors had jury, upon outside influence improper they the inter- racing approached been purpose for the cannot be considered juror did section. unidentified Jones, 450 impeaching or verdict.3 credibility of the rumors vouch for any at 814. Kaylor’s testimony trial S.W.2d supplement Co., 975 argues alleged Young Farm Auto. Ins. jury’s 3. v. State Mut. Appellant also that the 98, (Ky.1998); Dillard Ack S.W.2d 99-100 of these rumors ran afoul discussion 560, See, erman, (Ky.App.1984). e.g., 668 S.W.2d "appearance of evil” doctrine. B. Withholding during case; indeed, circumstances of Appellant’s information voir dire. only allegation was that the unidenti juror fied had heard rumors. If this did Appellant claims that right occur, actually can only speculate we as to impartial an jury was violated when at the amount rumors, and substance of these juror least one withheld material informa given allegations the threadbare set forth during tion voir dire. He argues that the by Appellant. affidavit and the newspaper article prove In circumstances where challenge juror that a jurors knew of the rumors juror qualification is made to prior about to or racing before trial and withheld that during trial challenge and the information first oc- when the trial court asked the verdict, curs after following question rendition of a during party voir dire: “Does anyone any seeking have relief from knowledge the effect of as to the the ver- facts and circumstances of dict bears a heavy this case?” burden. It is incum- upon bent party facts, such a allege It is well settled that ob “[t]o true, which if proven to be are sufficient tain a juror new trial because of mendaci integrity undermine the of the ver- ty, ‘a party must first demonstrate that a dict. juror failed to answer honestly a material Gordon v. dire, question on voir and then further In light of the speculative show that a response correct would have nature and paper-thin provided credibility4 Ap- a valid basis for a challenge for ” pellant’s allegations, cause.’ we hold that the Adkins v. trial court did not abuse its discretion in over- (quoting Mc Donough ruling Appellant’s Equip., Power motion for a new Inc. v. trial. Green wood, 548, 556, 104 Key 845, 850, U.S. S.Ct. Cf. (1984)). 78 L.Ed.2d 830 (Ky.App.1992) (jury The evidence cit verdict affirmed by Appellant ed falls short of where defendant meeting this failed to elicit testimony example, juror standard. For from in question Paenitz v. only and the evi- Commonwealth, 820 (Ky.1991), S.W.2d 480 dence offered nothing showed more than biased). remanded for a new trial speculation juror where there was evidence prove juror that a with III. UNPRESERVED ISSUES.

held the fact that she had discussed the details of the government’s case with the During hearing in-chambers expert prior witness to trial. Appellant’s Id. at before began, trial the prose contrast, statements, Juror 25’s if taken cutor informed the court and defense coun true, do not indicate that the unidenti sel that if [Kaylor “even Appellant] juror fied knowledge had of the facts and racing, the race would have ended usually applied This doctrine has opportunity been where present had the witnesses in prejudice prove, actual is difficult to but there support Despite of his new trial motion. all always readily provable patently has been im- this, only sworn statement proper part conduct on the of an actor in a presented hearsay allega- ever was Juror 25’s position to jury. influence the In the case sub tion, which Ap- never identified its declarant. judice, Appellant only is not unable to estab- pellant subpoenaed could ju- all of the prejudice; lish he also has fallen short of hearing rors to the so that Juror 25 could showing improper conduct. identify ques- the declarant who could then be tioned about the nature and extent of the Department 4. The Advocacy of Public con- allegedly information he withheld. telephone ducted ju- interviews with several hearing rors and had a at which

431 trial with the wide discretion Kaylor ready to turn consistent gets [off when always had over the nature Road],” that courts have the evidence Pembroke and recross examina- scope were redirect not show that would therefore Lawson, Kentucky Robert The where the tion.” G. racing through the intersection Handbook, 3.20[5], § at 245 Law prosecutor The also Evidence place. took collision 2003) (4th KRE (quoting testify while ed. LexisNexis Kaylor that stated would (internal omitted). 611(a)) Given footnotes Appel- the in which he and about manner to allow testify that trial court’s wide discretion driving, he would not the lant were fact that testimo- Indeed, inquiry, nev- and the the racing. Kaylor two were this impeach- admissible as Appel- ny was otherwise racing testified that he was with er evidence, man- suffered no Appellant cross- ment During Kaylor’s lant. direct and admission. examinations, injustice of the ifest from its no mention was made redi- racing community. rumors in the On also claims that Appellant examination, prosecutor asked rect palpable court committed error trial in plea if he Kaylor guilty had entered in engage permitting prosecutor response endangerment a wanton closing during argument. misconduct his charge, Kaylor that he had answered mis considering alleged prosecutorial recross, an de- plea. entered On Alford closing argument, we re during conduct up inquiry fense counsel followed this the conduct view to determine “whether Kaylor had to merit asking what he done as to ‘egregious’ of such an nature Kaylor endangerment charge. the wanton deny right his constitutional accused concerned, far as I I responded, “As Slaughter process of law.” v. Com due wrong, it start- anything got didn’t do but monwealth, 407, (Ky.1987). 744 S.W.2d in racing, somehow that I was when I ed allegation pros- first Appellant bases his it really fact wasn’t. I don’t know where upon comparison ecutorial misconduct he Appellant came from.” concedes that representations, prosecutor’s pretrial object prosecutor’s inquiry, not to the did above, closing noted with statements for on palpable seeks review error invited argument which he prosecutor grounds that should Appellant Kay- that draw an inference permitted have been to elicit evidence new point during some racing lor were Accordingly, on redirect examination.5 leading to the In clos up events collision. injustice. 10.26. review manifest RCr duty pros ing argument, is “[i]t rule, ecuting attorney As exami to confine himself to general redirect fair that nation limited to ex facts evidence and inferences questions should be drawn plaining developed may that have therefrom.” Williams matters been 335, (Ky. cross-examination. E.g., v. Com 644 S.W.2d White 1982). monwealth, 873, in the case sub Ky. While no witness (1942). Nevertheless, Appellant that judice explicitly courts testified “[t]rial evi always racing Kaylor, with there was had substantial discretion supported adduced at trial that departure from these norms.... dence allow 611(a), trial language giving of KRE inference slowed racing control the mode one another before judges ‘reasonable over witnesses,’ Road. to turn off of Pembroke interrogating and order of his vehicle Tipton v. assert it was error does not (Ky.1982); evidence Parido for the Commonwealth elicit this guilt. evidence of his own See substantive prosecutor The 766, relied on this evidence as injustice No manifest an illustration of general manner resulted from this reference.

which Appellant operating his vehicle Accordingly, judgment of convictions during collision, the time leading up to the and the imposed by sentences the Chris- arguing: “Is racing an I issue here? don’t tian Circuit Court are AFFIRMED. know. Is driving fast an issue? Absolute- ly.” prosecutor’s closing argument LAMBERT, C.J.; COOPER, GRAVES, was not inconsistent with pretrial rep- JOHNSTONE, SCOTT, and resentations, did not testify that WINTERSHEIMER, JJ., sitting. he and However, were racing. LAMBERT, C.J.; GRAVES, admissible evidence jury heard sup- JOHNSTONE, WINTERSHEIMER, ported inference, prosecutor’s and the JJ., concur. pretrial statements were not misleading; thus, Appellant injus- SCOTT, J., suffered no manifest part concurs in and dissents tice from this part of the in part by separate opinion. Commonwealth’s closing argument. Justice SCOTT Concurring in Part and Dissenting in Part. Finally, Appellant pal asserts agree While I with the majority on the pable error arising portion from a juror issues of “alleged misconduct” and closing argument in which the prosecutor “unpreserved issues,” I respectively dis- stated, “Kaylor pled guilty to first-degree sent on the sufficiency of the evidence to wanton endangerment for operating his support the charges. “wanton murder” vehicle in the manner he did.” Appellant argues “In our this statement dedication to severely pun constituted bolstering kill, both ish... Kaylor’s drivers who testimony and dedication which I share, improper grown indifferent Kaylor’s characterization of to the difference between man plea. Both murder claims are meritless. Alford slaughter, an indifference which I do not Nothing in the statements cited Appel share.” Bush v. lant indicates that the prosecutor vouched 550, (Ky.1992). (Leibson, J., credibility of Kaylor’s testimony. dissenting). “I concede that fatal careless Compare Armstrong v. ness in operation of a motor vehicle 517 S.W.2d 236 (Ky.1974) (prosecu calls for punishment, stern but murder is closing tor’s argument was improper bol something else. simply There is a differ stering where he told that he had in culpability ence between committing an known and worked with witness for a long act that endangers people presence whose time and that witness was honest and con is known and an act that endangers people scientious). Moreover, the prosecutor presence whose should anticipated, committed no misconduct in referring to in fact is not known.” Hamilton v. Com plea guilty plea. as a See Al Alford monwealth, (Ky.1977), (“the ford, 400 U.S. at 91 S.Ct. at 167 (Palmore, C.J., dissenting). Constitution is practical concerned with consequences, not the formal categoriza case, In this Demond Brown “[d]oes tions, law”). Furthermore, of state “[a]n fit description of wanton murderer [a] plea ‘plea is a guilty,’ regardless absent further circumstances indicating a Alford ” any denial of underlying facts .... disregard heedless for victims he is con- Bush, Pettiway v. sciously (Leib- aware of.” supra,

433 Moreover, point impact.” J., “By to the son, dissenting). prior virtue drugs no or alcohol opinion parties this case... the distinc all concede the... reckless murder and involved. tion between wanton Estep will lost.” v. Common homicide Yet, of two counts Brown was convicted wealth, 194 and two counts of murder” of “wanton (Lambert, C.J., dissenting). Why? 1st degree, endangerment, wanton January on p.m., Around 10:00 the years 20 each on sentenced to was (Brown) year old Brown was Demond year each on murders and wanton returning younger his brother home with all to run concur- endangerments, wanton just his up He had girlfriend. picked to years. rently for a total of Pursuant Leavell, job at girlfriend, Latida from her 489.3401(3), eligible not be KRS he will Kentucky, where Hopkinsville, Meritor his years until he has served parole Leaving the Meritor he also worked. years He then be near 40 sentence.1 will lot, out Pembroke parking pulled he on event, tragic he had a Prior this old. road, highway which is a four-lane with trouble, was never in job, owned car and per limit He then speed of 55 miles horn’. traffic couple than a tickets. other park- traveled six-tenths of a mile from the (but suggested at never Evidence trial ing lot to the intersection Pembroke said) Kay- racing Brown with Michael was (the King Parkway By- Martin Luther Jr. just the red (Kaylor) prior running lor Pass). at light. Kaylor also worked Meritor witnesses, evidence, Credible both from night, That supervisor. Brown’s had been officers, investigating as well as the estab- as factory left the at the same time lished his on Pembroke road be- Brown, spoke to Brown.2 never Then, per 60 and miles hour. as tween out, According Kaylor, pulled when he intersection, he approached he he saw Pembroke, stay- he followed Brown down light. his had red He took foot off of him, lengths one to two car behind ing gas peddle, glanced but then over and saw miles hour. traveling “about” 65 lights thought opposing what it of a male from Again, was six-tenths go yellow Mistakenly believing his red. lot inter- parking at the to the exit Meritor green, would turn now he drove lane This had a turn section. intersection fact, In into intersection. his long eighty feet which was four-hundred car, remained red and he struck another up to the intersection. beginning from its killing daughter, Debra Conklin her lane, Kaylor came the turn Once he Megan. right into it to turn preparation turned majority concedes no evi- there was King by-pass, Luther on the Martin Jr. indicating dence introduced at trial either from way he drove home which was Brown, passengers, ever saw Ms. work. “[ijnference Conklin’s vehicle and Thomas, another em- impending Dewayne not see Meritor that Brown did lot at the same ployee parking fact that his left the collision reinforced (10:00 immediately p.m.) road and was vehicle left skid marks on the time contrast, serving Ma Larry Mahoney, years. Commonwealth v. drove into after 1. honey, 1988-CA-001635-MR. way stupor, going wrong in a bus drunken killing people. twenty-seven He was sen evening gets Everyone shift off on the years probation tenced to and released on 10:00p.m. passed by both Brown and mounted front. One was cut into a exited the parking out of lot. He testified box glove hole where the old would nor- “they sitting went me like I be, still.” mally while was suspended the other However, this farther when comment was near the floor gearshift. from the These explored, acknowledged only he he was very only were small screen but T.V.’s one yards feet up parking to 50 from the lot worked. There was no evidence that the doing exit per and 35-40 miles hour. Earli- any capability playing T.V. had of video er he had indicated he was about 50 doing accessing movies or signals. T.V. per they by miles hour when went him.3 Quick, employee Calvin another Meritor testified, they Later he “I seen what were passenger by and a driven the car De- doing,” racing. but he never said word the Thomas, wayne testified that when he Brown, hand, the driving on other was lot, by the parking walked Brown’s car in fact, it Ford Crown Victoria. In was playing. agreed the T.V. Brown city police a former cruiser had which he playing testified and his brother were actually belonged Mayse, to Detective the Playstation with their the T.V. screen police re-constructionist who testified in they waiting parking while were lot the case. Mayse Detective admitted it had Laticia, Brown, for girlfriend. his his special engine police found in cars. It and Laticia clear brother were doesn’t rocket take scientist to know a working one was not in T.V. screen use police capable doing much cruiser of when the collision occurred. more per than 60-65 miles in six- hour Quick, passed coming Mr. who Brown (from tenths mile parking of a lot to lot, parking out of the at first believed it intersection). poses ques- Which was in use when he passed, later tion, really Brown were rac- acknowledged that were tint- the windows Or, were, ing? they obviously they quit if ed on Brown’s he could vehicle and before exited to the turn lane and just However, seen blank blue screen. approached light Brown at the inter- Quick’s recall that one should Mr. observa- turning section. The lane started 480 feet intersection; tion at a prior point came either feet or 50 per to the at feet second, hour, yards at from the at a time per parking 60 miles five lot when that’s (51/2) (Thomas) of one-half seconds from the start the driver his vehicle indicat- of the turn lane to the “they by intersection. ed went I was sitting me like still.” Almost of a six-tenths mile still However, purposes for of consideration to the remained intersection. case, of this let’s doing assume some form rac- “undefined of restrained got? young have we A kid who So what ing” per miles a 55 60-65 hour on mile terribly tragic thinking made a mistake four-lane, per prior Kay- hour to the time green would turn and ended up his lane, lor withdrew exited to the turn killing people. Something two innocent right for his hand turn. his regret he’ll for the rest of life. But is he of “wanton as the ma- “suggestion racing” guilty to the murder” contrast of collision, jority says, opposed being guilty as the cause the Common: degree manslaughter wealth reck- also introduced evidence second and/or had two screens Brown’s vehicle T.V. less homicide? surprise yards. It would indeed be if one could 50 feet or even 50 reasonably accelerate to 50 hour in miles testified, thought what he he then saw majority appropriate set out the has red, yellow from go reviewing questions regard- opposing light

standard turn green, All his sufficiency expecting ing the evidence. noted into the intersection. As are to drove fair and reasonable inferences trial majority, was no evidence at favor. there drawn the Commonwealth’s Benham, he, ever indicating passengers, his even Commonwealth But, inference Conklin vehicle. The what inferences saw the fact reinforced that this was so is are fair and reasonable? road marks on the vehicle left no skid from traveling six-tenths a mile After point impact. to the prior lot, ap- Brown parking the Meritor then becomes whether light question the at the intersection The proached red Brown, taking all under these facts and King Pembroke and Martin Luther Jr. of time, thereto, prior At inferences in favor of the Com- this or reasonable bypass. monwealth, mur- have, can of may may guilty in or wanton someone the vehicle at, with, man- have, opposed degree to second looking playing been or der not “A driving, slaughter Brown was his reckless homicide? the T.V. screen. and/or (b) sitting passen- guilty in the is of murder girlfriend person front when:... to, seat, and in ger sitting including, operation his brother was the but not limited the accident, Playsta- seat. under circumstances back After the of a motor vehicle manifesting in front to human right tion was the floor of extreme indifference in passenger girl- life, wantonly engages he conduct which compartment where been, of sitting. may grave friend was It or a risk death to another have creates may been, prior person thereby not in that location to causes the death in person.” the accident. This is where KRS 507.020. Stated another facts, way, it in the using parking say, lot. another can we these juror that a reasonable could believe be- driving Brown was a former cruis- police yond Appellant’s a reasonable doubt that to capability significant er with reach conduct extreme indifference “manifested a speeds six-tenths of mile from human life?” to to at the parking lot intersection. intersection, a approach Prior to his to the “This Court has held that conviction have, may may have, exclusively in- he been murder is reserved wanton virtually re- who manifest no con volved “some form undefined offenders do- of human life.” John racing” Kaylor; strained with Michael cern for value 951, 952 ing per 60-65 hour on four-lane v. miles son Commonwealth, 704 highway posted speed (Ky.1994); with a limit of 55 Kruse v. was, (Ky.1985); Harris per miles hour. or was v. Common Whether wealth, not, (Ky.1990); Nichols doing anything in this 793 S.W.2d 802 regard prior intersection, (Ky. Kay- 657 S.W.2d 932 approaching the Michael 1983). right turned into turn lane to make a lor turn and turn lane four-

hand started this is presume One would reservation eighty prior hundred feet the intersec- severity potential upon based noted, miles doing tion. As a vehicle A murder a Class sentence. Wanton is per per hour travels 88 feet second. felony twenty years penalty with intersection, is a degree manslaughter approaching Prior life. Second felony with a maximum sentence Brown noticed that the was red Class C homicide, the least gas peddle. years. his foot As he of ten Reckless took off three, culpable of the pen- damages” has a maximum up on accidents to ten miles alty years of five per the penitentiary. speed limit, hour over the even when Moreover, pursuant 439.3401(3), to KRS wrong collision occurs in the lane. Capital, Class A B Butcher, gener- Kinney felonies are See 131 S.W.3d 357 ally classified as “violent offender” of- (Ky.App.2004). “Kinney alleged also fenses, subject to an 85% serve out of the Butcher traveling per 55 miles hour in sentence imposed. Class C and D zone,...” felonies a 45 per mile hour Id. at 358. subject are not to this 85% out serve rule. agree We with the trial court’s assessment of the circumstances of this case to the majority’s logic to avoid the con effect that traveling possible at a speed of Johnson, Kruse, straints set out in Harris ten miles hour in posted excess of the Nichols, supra, contained four speed limit and failing complete pass sentences. before entering a no-passing zone consti- “Appellant’s conduct substantially nothing tute more ordinary negli- than more than a mere traffic violation. gence. Were to accept Kinney’s argu- addition to driving at a exceeding rate ment that it amounts to wanton or reckless the speed limit and violating the traffic disregard safety others, for the it would signal, there was substantial evidence effectively eliminate the distinction be- that Appellant watching was television ordinary gross tween and negligence in the rather than monitoring the traffic at the context of automobile Nearly accidents. intersection and that he had attempted all auto accidents are the result of negli- to ‘time’ the traffic light despite the fact conduct, gent though sufficiently few are that it remained red at all during times reckless as to gross amount to negligence, Moreover, his approach. from the testi- authorizing punitive damages. We are of mony regarding the manner in which opinion the that punitive damages should Appellant Kaylor and operated their ve- truly gross reserved for negligence Kaylor’s hicles and unusual conduct af- Rice, seen in Shortridge cases such as collision, ter jury the the could reason- 194 (Ky.App.1996), Stewart v. ably have inferred that Estate Cooper, 102 (Ky.2003) S.W.3d 913 Kaylor racing during were period the Phelps Co., v. Louisville Water immediately preceding the collision and Shortridge S.W.3d 46 In both that Appellant ran the red to “out- Stewart, the defendant tortfeasors Kaylor, run” realizing driving while Intoxicated and in had slowed down to turn by- onto the Phelps, jury presented the was eigh- with pass. the While evidence was no teen Co., instances where Louisville Water overwhelming means points, on these misrepresented dangerous the nature of a we say cannot as a matter of law that it highway condition...” Id. at 359. And was unreasonable for the to believe who hasn’t driven per ten miles hour over beyond a reasonable doubt that Appel- the speed limit on a four-lane highway on lant acted under circumstances mani- occasion? And he did run a light. red festing extreme indifference to human However, running a red is insufficient 9-10). (Slip life.” opinion p. grounds support charge to a of “wanton driving Brown was at a exceeding rate murder.” Johnson at 952. limit. This was a per 55 mile hour T.V., four-lane and the evidence estab- As to absolutely there was driving lished he was per 60-65 miles hour. evidence in case that this Brown was cases, “punitive In civil we have denied watching the television on the approach to question follow-up the answer There was evidence from the intersection. Thomas, was asked. and the never Quick, Dewayne Calvin playing that he had been fairly supports in this case The evidence screen), Playstation (using the T.V. while charge deserving penitentiary a criminal waiting for Laticia. parking lot time, simply it not sufficient Quick it testified he saw on when also “manifesting an extreme establish conduct him, yards to 50 passed which was feet life,” value of human indifference from lot and six-tenths of a parking years life. the standard for 20 mile the intersection and also at a from say say that! can that! We should We he Brown and time when testified that say must that —on these facts! And we “like sitting him he was went jurisprudence Never before in our have Yet, Quick in a traveling still.” vehi- subjected Kentucky’s families members cle “about 85 miles hour” doing on facts of “wanton murder” convictions yards time 50 feet to 50 from the as these. (the lot). And, parking on starting point case I have reviewed where we Every cross-examination, he could he admitted conviction, have murder” upheld “wanton screen, just seen blue since Brown’s (or close-equivalent, vol pre-penal its code say could not windows were tinted context of a untary manslaughter) picture it. there Brown and all collision, motor has involved multi vehicle occupants said the other vehicle “high speed,” ple indicating a rate of facts Moreover, T.V. off. there was no lane,” wrong “running “collision capability evidence the had the T.V. coupled additional red with the light,” any local or had picking up T.V. stations intoxication, except element of one. play video other than its feed use Commonwealth, 129 S.W.3d 351 Cook v. accident, Playstation. Plays- After the (defendant (Ky.2004); intoxicated plus in in tation was the floor front of the road”); “high “curvy of on speed” rate seat, posi- was Laticia’s passenger which Commonwealth, Love 55 S.W.3d 816 v. tion, But not Brown’s. that is also where (intoxicated, (Ky.2001) speeding 70-90 they sitting his brother was while were attempting po to evade per miles hour — Playstation waiting playing the while on Commonwealth, lice); v. 957 S.W.2d Estep lot. parking Laticia in (zonked drugs 191 on on (Ky.1998) —head lane); v. majority suggests, in Com concurrently wrong collision Renfro monwealth, reasonably (Ky.1995) 795 “the could inferred 893 S.W.2d (under in racing grounds overruled on other Appellant and were dur- alcohol, driving high a rate of ing immediately of at period preceding fluence ran red speed, wrong ran the on side of road and collision and that red Commonwealth, light); v. 805 light Kaylor.” to ‘outrun’ How does some- Walden “souped up” police (Ky.1991) one car on a 55 102 overruled other race S.W.2d (B.A. plus high .297 rate of per keeping grounds mile hour four-lane while it of line); Not center Keller per speed, between 60-65 miles hour? one collision across Commonwealth, (Ky.1986) 5 person actually they “rac- v. 719 S.W.2d testified were (intoxicated driver ran on into vic ing” Dewayne would understand it. head as we said, wrong of they high speed “I car at rate Thomas seen what were do- tim’s lane); v. 560 why if Hamilton ing,” “racing,” but were wasn’t (ran (Ky.1977) light high red at S.W.2d 539 the matter clarified or raised evi- condition). Surely rate of in drunken dence? the Commonwealth knew 438 However,

The one exception charges was Graves v. Com of reckless homi- monwealth, cide, you start to see more S.W.3d As cases where tonishingly, involved intoxication a factor. “running Graves was not Burchett v. gun (Ky.2003) battle” car 98 S.W.3d 492 during a chase over a bad (ran a stop sign causing drug death —no direct upwards deal of over per 100 miles proof of intoxication —but was reversed hour through light, a red broadsiding an exclude of daily statements habitual of use vehicle, other killing occupants. Even Alexander, marijuana); v. Commonwealth so, the “wanton murder” elements in (Ky.1999) (police S.W.3d 104 officer do- Graves, only were held to have been satis ing 95-100 per through miles hour inter- fied under the tenets Bennett v. Com section with emergency lights after emer- monwealth, (Ky. 326-328 gency had been called off and canceled— 1998), a doctrine similar to “transferred motorist, hit and killed or alcohol viewed, intent.” “Thus the high speed drugs involved—conviction of reckless chase exchange gunfire and the affirmed); homicide Commonwealth involved in circumstances the method (intoxicat- Harrell,. (Ky.1999) S.W.3d ‘perpetration attempted perpetration’ ed while driving per 50 miles hour in a 35 (citations ongoing drug transaction mile hour zone—ran red and hit deleted); provided and that conduct vehicle killing passenger); Commonwealth element aggravated wantonness neces Runion, 583 (Ky.App.1994) sary to convict Appellants all three vehicle); (drinking hit turning driver Graves, wanton murders...” supra, at Jones v. 830 S.W.2d 877 Obviously, the facts this case do (defendant, driving while under not meet culpability level of a high the influence of alcohol struck another ve- speed gun through battle a red dur hicle injuring a fetus who died fourteen deal; ing failed nor drug is there evi hours after delivery); Wilson v. Common- dence of intent” “criminal sufficient wealth, (Ky.1969) (drag transfer under the standards of Bennett or racing motorcyclist, killed convicted on in- Graves. voluntary manslaughter year and 1 sen- Drugs Looking charges tence. alcohol next at of second and were not in- de- volved). Commonwealth, gree Rouse v. manslaughter, pre- intoxication still (“smell 265, of alco- historically dominates as a common ele- hol on pretty strong was after ment. Tucker v. accident”). the (evidence WL 23095746 (Ky.App.) of intox- ication, collision); racing head on and Moreover, majority opinion the em- Mahoney, Commonwealth v. 1988-CA- 507.020(l)(b), braces the language KRS (drunk 001635-MR 27 people killed in a Yet, as supporting their affirmance. in stupor hitting drunken a going bus the reality, support there is no a there as wrong way); Newcomb v. Court, majority of right this after the en- (1939) Ky. 507.020(l)(b), actment of its KRS noted (pre-penal of voluntary code—convicted intent. drivers inclination to take “[A] manslaughter may be said here road,’ that ‘one or for in- more the [drinks] —“it defendant, rattle-trap automobile, the in a creases the death rate vehicular on the out on a wild on this party Saturday highways of this Commonwealth. A ma- night. jority All of them intoxicated. [are] the members of this Court legislature opinion There were four in the driver’s of the the seat and that enact- rumble”). 507.020(l)(b), in ed two the KRS to deter such con- times, Johnson, when legislature as in we there are duct. The is commended to the line. giant step courage Its to the draw taking a forward. have have such authority not want enacting do do prosecutors statute will Most actions this under cir- highway charges “wanton murder” decrease vehicular use much to However, being by persons operating this. an automo- cumstances such as deaths realists, respond pressures they must bile under the influence of intoxi- while something a to do about public cants.” Hamilton v. from the pressure greatest That is particular case. “results” of the conduct are the where the Hamilton, later, consistent with Then Thus, if we tragic as this case. most on use “wan- put we another brake the gate” the on “wanton murder” open “flood ton in vehicular homicide cases murder” cases in vehicular homicide prosecutions (not intoxicants) involving our decision intoxicants, no where there is evidence of Johnson, Johnson, heavily In supra. more akin or other terrible circumstances through coal truck drove red loaded (the conduct like Graves intentional Floyd on 23 in at an intersection U.S. “running drug over failed gun battle” the County, striking killing occupant the deal), will prosecutors then be forced speed of another vehicle. The limit Why charge more more. use miles hour U.S. 23 was 55 in their to stand alone should speed of the coal truck undetermined. communities, pressures resisting Johnson, said “no evidence was (and press), public when the conse- introduced the Commonwealth of ex- terrible, are quences of an incident indeed speed treme or even that questions degree from of cul- aside exceeding legal limit. Evi- participants. They pability of the look dence was introduced that the Appellant should not set down our us too—and we operating was not truck coal under lightly. burden so alcohol;...” drugs influence of Johnson Walden, in this Citing That the conduct of the defendant Hamilton certainly may cases in conduct “ex- have been “wanton” is which involved both case “intoxication,” debatable; speed” rates of the conduct manifested treme we said “there these “an indifference to the value of is noted absence of extreme explode factors in case at hand. This Court human life” is not. “To barrel street, in a kill gun powder has held that a conviction of crowded wanton exclusively murder, although actor hopes murder is reserved for of- people virtually harm But to fenders who manifest no con- such will be done. cern riding value of human life.” kill a man careless same manslaughter.” commonly at 952. If we now to going Johnson are street would Holmes, Holmes, legal leave road do precedent, this of let’s Justice the Common intentionally p. it and with Law The maximum sentence for a knowledge we’re 60. just degree man- leaving don’t drift off inatten- “wanton” act “second —let’s tively. years, not to life. “All slaughter” is jail know lie in that the we who walls —are I as to agree And while “the decision year day is like a strong are each —a —and (of aggravated whether the circumstances Wilde, days long.” year whose are Oscar to human extreme indifference life IV, Reading St. 1. The Ballad Jail another) grave pres- risk of death to decide,” power, to some ex- up ent left While we is best control, influence, tent, supra interpret, Cook v. conduct, boundaries of criminal must

always strive maintain the standards of

punishment at determinative levels based culpability involved.

upon the If this ease affirmed,

stands we have met our obli-

gation have laid it down. —we out,

For I the reasons set would reverse insufficiency

this conviction due to the charge to support evidence

“wanton murder” would it remand

the trial court for a new trial on the

charges degree manslaughter” “second

and “reckless homicide.”

3D ENTERPRISES CONTRACTING

CORPORATION, Appellant,

LOUISVILLE AND JEFFERSON

COUNTY METROPOLITAN SEWER

DISTRICT, Appellee.

No. 2003-SC-0249-DG.

Supreme of Kentucky. Court 25, 2005.

Aug.

Rehearing Nov. Denied

Case Details

Case Name: Brown v. Commonwealth

Court Name: Kentucky Supreme Court

Date Published: Jul 7, 2005

Citation: 174 S.W.3d 421

Docket Number: 2003-SC-0235-MR, 2003-SC-0716-TG

Court Abbreviation: Ky.