Graves v. Commonwealth

Avery GRAVES, Appellant, Kentucky,

COMMONWEALTH of

Appellee. Thomas, Appellant,

Francis Gerald Kentucky, Appellee.

Commonwealth of

Roy Woods, Appellant, Lee Kentucky, Appellee.

Commonwealth of 96-SC-0342-MR,

Nos. 96-SC-0345-

MR and 96-SC-0346-MR.

Supreme Kentucky. Court of

Jan. 2000.

Rehearing Denied 2000. June Marshall,

Larry H. Assistant Public Ad- vocate, Department Advocacy, of Public Frankfort, appellant Avery for Graves. Lambertos, vehicle, Louisville, ap- inquired, for Thomas David A. Thomas’s pellant dope,” replied, Francis Gerald Thomas. and Furman “[w]here’s Thomas, you had thought “I it.” Ransdell, M. Public Thomas Assistant seat, in the front then passenger Furman Advocate, Advocacy, Department Public parking out lot and drove his vehicle Frankfort, appellant Roy Lee Woods. pursuit north on Preston hot Woods’s General, Chandler, III, Attorney A.B. vehicle. Frankfort, Perry Ryan, T. Attor- Assistant Preston sped The two vehicles north on General, Division, ney Criminal Appellate Street, Shelby then on There Street. General, Frankfort, Attorney Office of traveling evidence that vehicles were Kentucky. for appellee Commonwealth of per 70 and 100 hour in a between miles STEVENSON, Justice. hour zone per gunfire miles and was between and Thomas. exchanged Woods Appellant Francis Thomas de- Gerald Ultimately, Graves vehi- drove Woods purchase sired to one of cocaine kilogram light a through cle red at intersection $27,000.00 and asked Kenneth Furman Shelby Parkway and and Eastern in arranging purchase. assist him being op- a vehicle and broadsided owned McDuffie, Furman contacted Aaron inwho by erated Clara McDonald. McDonald Woods, Appellant turn Roy contacted Lee son, McDonald, her Robert were killed and who agreed to obtain the it to sell substantially and McDonald’s vehicle was Thomas, profits and share some of the by the damaged collision. Thomas drove with Furman and Arrange- McDuffie. through light his vehicle the same red and made to ments were consummate the yet collided with another vehicle owned February transaction on at Trixie’s Weathers, being operated by and Kenneth on in Lounge Highway Preston Louisville. causing damage substantial to Weathers’s McDuffie, Woods and along Appellant Both by vehicle. were witnessed accidents Graves, Avery at arrived in a vehi- Trixie’s police a officer who arrived on the scene cle driven Woods. Fur- Thomas and pinned within moments. be- Graves was man in arrived at Trixie’s a vehicle driven steering hind the wheel of Woods’s vehicle he, McDuffie Thomas. testified Thomas, and was arrested the scene. Woods and Graves encountered Thomas Woods,.Furman and all fled McDuffie Trixie’s, pay phone and at a Furman inside hiding was in scene. Woods discovered a he, and that Woods and Graves all directed nearby Castle McDuf- White Restaurant. and Furman to Thomas follow them to the fie, escaped, and Furman Thomas and parking lot. Woods Thomas went to $27,000.00 arrested later. The was were vehicle; McDuffie, and Thomas’s Graves car, from the trunk recovered of Woods’s Furman went to Woods’s vehicle. Graves but no cocaine found. got got into the driver’s seat McDuffie and Graves, into passenger the front appeal seat of Wood’s Thomas and Woods their Meanwhile, vehicle. Thomas delivered subsequent convictions Jefferson $27,000.00 Woods, who returned to his in a Circuit Court controlled placed money vehicle and in its trunk. in the first wanton mur- degree, substance (two counts), He McDuffie Furman gave then der and criminal mischief in part payment degree. operators of- Furman’s first two $500.00 vehicles, Thomas, Furman inquired, share. were also “[w]here’s When Graves replied dope,” given endangerment Woods that he had of wanton convicted Graves, it to Thomas. with McDuffie still degree, speeding, disregarding first was addi- passenger the front seat and Woods traffic control device. Thomas seat, stop tionally the back then drove the Woods vehi- convicted failure to parking (leaving cle on of an acci- out of the lot and render aid scene north dent). All three were sen- Preston. Furman returned When prison teneed to life in for each of the him by Woods. That was sufficient wanton murder convictions and to lesser evidence to convict of complicity Thomas offenses, penalties for the other first-degree each sen- trafficking. KRS 502.020(1). concurrently Likewise, tence to run with the others. present Graves was

in the vehicle when Woods told McDuffie IN A TRAFFICKING CONTROLLED that he had the cocaine which he intended SUBSTANCE Thomas; to sell to participated directing Appellants park Thomas and Furman to the they assert that were ing lot where the entitled to directed transaction would take acquittal verdicts of on place; positioned and Graves then respective their himself charges first-degree car, substance, behind the wheel of trafficking in a Woods’s fact controlled be found, from which a cause no could infer intent to cocaine was ever thus aid and abet the there commission of the offense proof any was a failure of con by acting as getaway trolled driver substance either was sold or trans ferred, departure. event of the need for a possessed hasty for the purpose of That was sale or sufficient circumstantial evidence They rely transfer. on cases those to convict complicity Graves of to first- hold that an instruction should not degree given trafficking. be See Skinner v. Com on a unsupported monwealth, (1993). Ky., 864 by the S.W.2d 290 E.g., evidence. Butler v. Common wealth, As for Ky., (1978); police any the failure of the to find 560 S.W.2d 814 Pilon Commonwealth, scene, cocaine at the the Ky., jury could have 544 S.W.2d 228 Woods, (1976); McDuffie, Commonwealth, believed that Blaine v. Thomas or Ky., 459 (1970). Furman, temporarily escaped, all of whom S.W.2d 759 possession. did so with the cocaine in his It unnecessary for a conviction of a controlled substance WANTON MURDER the controlled substance be seized the jury was instructed that each police or that it be introduced at trial. appellant could be convicted of the wanton premised Conviction can be on circumstan murders of the if jury McDonalds the be that, tial evidence of such nature based on lieved that he reasonable doubt ease, the whole clearly it would not be participant was a in the of the commission jury unreasonable for a to find guilt be first-degree trafficking offense of in a con yond a reasonable doubt. Howard v. substance, partic trolled and that his Commonwealth, Ky.App., 787 S.W.2d 264 ipation in that offense constituted wanton case, In the was instruct conduct which a grave created risk of ed that they could find each defendant death to another under circumstances principal accomplice as either or manifesting extreme to human indifference under alternative theories of criminal lia life, and which resulted the deaths of i.e., transfer, bility, trafficking by sale or the McDonalds. The convicted all or trafficking possession with intent to appellants three of two counts of wanton 218A.1412(1); sell or transfer. KRS KRS murder under instruction. 218A.010(28). McDuffie testified that Commonwealth, him prior arriving Woods told at Trix Ky., Bennett (1998) 322, ie’s Lounge he had the cocaine and 326-28 discusses that he length partic- intended to sell it to Thomas. under which testimony supports That alone ipation attempted Woods’s or commission trafficking by possession conviction of felony sup- with commission of a can dangerous ply intent to sell. Howard v. Common the element aggravated of wantonness wealth, supra. ample There was to convict necessary of wanton murder. $27,000.00 previous that Thomas gave Woods Under the common law offense of murder,” purpose “felony of of promoting engage sale cocaine the intent to aggravated provided of felony was transferred to duct the element underlying all provide necessary to convict the homicide so as to the element wantonness three necessary of to convict of intention- appellants malice wanton murders of the (There al murder. was no common law McDonalds. murder.)

offense of wanton The element respect “dangerous[ness]” to the DOUBLE JEOPARDY underlying felony could be derived either appellants all three Convictions of felony of the or meth- the nature multiple arising out of the offenses de attempted od 'perpetration perpe- itsof scribed events did not violate constitu Perkins, R. (citing tration. Id. at 326-27 proscription against jeopar tional double (1st Criminal Law 36 ed. Foundation appellant Each each dy. offense of which added). 1957) (emphasis Press proof convicted of an required element The Kentucky Penal Code eliminated which the other offenses did not. Block murder, felony the common law offense States, burger v. 284 U.S. United concept incorporated a similar into the S.Ct. L.Ed. 306 Common offense of wanton murder. Since intent is Burge, Ky., wealth v. 947 S.W.2d 805 murder, not element of wanton nom., (1996), Effinger cert. sub denied underlying commission offense does Kentucky, 522 U.S. S.Ct. rea con- supply necessary the mens L.Ed.2d 323 Instead, vict of murder. intentional concerning underlying jeopardy facts Nor it double con felony participation may defendant’s therein the wanton vict the murders satisfy aggravated the element of wanton- the underly of the McDonalds and also of ness necessary to convict of wanton mur- offense of first-degree even 327; der. Id. at also Kruse see v. Com- surrounding though some of the facts monwealth, Ky., 704 A underlying provided the offense element of (and did) jury could obviously reasonable necessary to aggravated wantonness con the of this conclude from facts case that of the vict murders. Common Bennett the cocaine ongoing transaction still wealth, supra, at 327. by when Woods’s vehicle driven not double Finally, jeopar it was collided with the McDonald vehicle. One appellants dy jury guilty for the to find the primary of the theories advanced the under the wanton murder instruction de appellants in the charges defense to of having signed scribed above after verdict trafficking was that first-degree drug the ' not under an finding forms them completed. transaction was never A clear murder. If theory alternative of wanton presented inference from the evidence murder the convictions of wanton which purpose this case is that Thomas’s in chas- appellants’ premised were the of on ing shooting occupants after and at the of participation in the offense complete was to that Woods vehicle reversed, could ar being appellants were obtaining transaction cocaine for gue upon they remand that could not be $27,000.00; paid which he had Woods murder theory retried on other wanton that Graves’s and Woods’s in flee- actions acquitted. Price v. they were shooting occupants from and at the Georgia, 398 90 S.Ct. U.S. inextricably the Thomas vehicle were in- L.Ed.2d 300 McGinnis Com efforts tertwined with Thomas’s to com- monwealth, Ky., 875 S.W.2d viewed, plete Thus the transaction. (1994), grounds, overruled on other Elliott speed

high exchange gun- chase and the Commonwealth, Ky., 976 S.W.2d 416 fire were but circumstances involved (1998). However, murder the wanton con “perpetration attempted method of premised appellants’ partic victions on perpetration” ongoing drug of the transac- 326; tion, Bennett, being offense are supra, ipation and that con- Commonwealth, affirmed. fact that in- jury Ky. (1942)

structed on alternative theories of wanton that omission of that element per murder implicate pro- does not se an prejudicial instruction is not if scription against jeopardy. double there was an abundance of uncontradicted

evidence that the offense occurred in the Here, county in which the trial was held. INSTRUCTIONS Commonwealth introduced uncontra- Appellants raise a er number of dicted evidence that the offense rors pertaining to the form and contents of County occurred Jefferson and that the the instructions. alleged None of these vehicles were headed north on Preston Thus, preserved. they errors were are Shelby point Streets from that until subject only possible palpable review the accident occurred. One drive cannot rule, errors. RCr 10.26. Under this in that direction and leave Jefferson Coun- error only injus is reversible if a manifest ty crossing without the Ohio River. It tice has resulted from the error. That was also that the fatal uncontradicted colli- if, upon means that consideration of the Shelby sion occurred at the intersection of case, possibility whole a substantial does Parkway Street Eastern is well that exist the result would have been south of the Ohio River. The instructions different, the error will be deemed- non appellants under which the were convicted Commonwealth, prejudicial. Jackson v. first-degree trafficking required Ky.App., 717 S.W.2d 511 jury to believe a reasonable doubt Appellants point out that in that the offense occurred Jefferson struction on first-degree trafficking failed County. do not that We believe a sub- to include the element that the accused possibility stantial exists that knew that the substance was would have acquitted the knowledge that such is an element charges oversight wanton murder had this 218A.1412(1); offense. KRS KRS not occurred. 501.030(2). However, the evidence was Appellants argue that the wanton undisputed that to pay Thomas offered murder instructions erroneous in were $27,000.00 cocaine; for a kilogram of they require did not to find agreed kilogram Woods to sell Thomas a they acted degree with a wanton $27,000.00; of cocaine for and that Graves to manifesting ness extreme indifference present when Woods told McDuffie Instead, human life. the instructions re that he had the cocaine which he intended quired jury to find that the to sell to If Thomas. believed that wantonly engaging were in conduct which Thomas, and Graves were Woods grave created a risk of death to another they could not have and that the victims’ deaths were caused any that of the believed three did not know manifesting under circumstances extreme was, fact, that the substance cocaine. human indifference to life. KRS palpable respect No error occurred with to 507.020(l)(b) predicates guilt upon a find this omission. manifesting that “under circumstances life,

Appellants’ next claim that the human [the is extreme indifference to wantonly engages wanton murder instructions under which conduct defendant] they proof were convicted did not risk of death to require grave which creates a venue, ie., person thereby that the causes the offenses occurred another County, (Emphasis Jefferson and that the instruc add person.” death of another ed.) trial require proved given by tions must that venue be The instruction judge comports language a reasonable doubt. Willis v. with the Commonwealth, 174 and is Ky., virtually statute identical (1960). However, Cooper, at 1 it was held Horn instruction recommended

865 Commonwealth, (Crimi- Ky., 793 to Juries Kentucky Instructions Stanford (1990). (4th 1993). nal) 112 § Anderson S.W.2d 3.23 ed. “BATSON” VIOLATIONS ALLEGED CLAIMS OF ERROR OTHER Appellants Woods and Graves have been claims he should Woods African-Americans) (both claim so-called McDuffie testified a mistrial when granted ” prosecutor “Batson violations Actual felon. that was a convicted Woods (who Caucasian) in Thomas is by Appellant why that reason testified ly, McDuffie peremptory of their strikes. the exercise police interrogator first failed to tell he 79, 476 106 S.Ct. Kentucky, Batson v. U.S. had fired the the one who that Woods was (1986). 1712, There were 90 L.Ed.2d 69 vehicle was because from the Woods shots among fifty nine African-Americans to have a supposed “I wasn’t knew he jurors for this case. called prospective statement as do not view this gun.” We per prosecutor was allotted eleven The a convicted felon. that Woods was two of those emptory strikes and used did, necessity for if there was no Even we the nine peremptories to excuse two of type evidentiary error This mistrial. judge trial did African-Americans. The to the easily cured an admonition explain require prosecutor testimony. Huddle disregard strikes, appel that peremptory finding Commonwealth, Ky. 251 64 ston v. prima had failed to establish a facie lants (1933); Clay v. Common S.W.2d 450 prosecutor’s that the strikes were ra case (1993). wealth, Ky.App., indicia cially any motivated. Absent other an admonition. request Woods did not motivation, of racial the mere fact that the prosecutor peremptory used two strikes to should have Graves claims he excuse two of nine African-Americans a mistrial when McDuffie granted been panel prima does not constitute a him “somebody” told he testified showing racially facie that the strikes were Fifth” and refuse to testi should “take the Snodgrass, motivated. Commonwealth v. went to the office fy and that he thereafter trial Ky., 831 S.W.2d to talk attorney, who refused of Graves’s judge require counsel for Thomas to did him. Furman then testified racially using neutral reasons for articulate that Furman “take suggested McDuffie peremptories four of his allotted sixteen (Furman) Fifth,” explained that he four African-Americans from the excuse Fifth already had waived his that he McCollum, panel. Georgia v. U.S. McDuffie rights. Although Amendment 120 L.Ed.2d 33 S.Ct. him to identify urged who had did not Commonwealth, Wiley Ky.App., testify, implication the clear refuse to explained that S.W.2d 333 Counsel it was someone connected juror worked in he struck one because she kind of evi have held this Graves. We system; a second be court-monitoring with a admissible as inconsistent dence police with a lieu acquainted cause he was innocence. defendant’s tenant and his brother was convicted testi- attempt suppress to a witness’ Any murder; family a third because she'had accused, by per- mony by the whether system in the court and made members threat, suasion, or to induce bribery, or which indicat during voir dire statements appear to at the trial to a witness not accept not Thomas’s ed she would to with the falsely, or interfere swear case; and the fourth because she tend- the court is evidence processes of represented by attorney had been n guilt. ing to show opposing one of the counsels’ office. Commonwealth, Ky,, 942 S.W.2d Foley race-neutral judge found these to be trial denied, 893, (1996), 876, cert. 522 U.S. 887 and we conclude reasons for the strikes (1997); 234, 165 see 139 L.Ed.2d clearly erroneous. 118 S.Ct. finding that her was not 866 Commonwealth, LAMBERT, C.J.,

also Tamme v. Ky., 973 and and GRAVES 13, (1998), denied, WINTERSHEIMER, JJ., 29-32 cert. 525 concur. 1056, U.S. L.Ed.2d S.Ct. KELLER, J., in a separate dissents (1999). opinion in which JOHNSTONE JJ., STUMBO, join.

Graves claims he was entitled to a directed verdict of acquittal COOPER, J., sitting. not mischief, charge first-degree criminal KELLER, Justice, dissenting. prove because the Commonwealth to failed majority opinion I dissent for the McDonald vehicle was worth First, three reasons: the trial court should $1,000.00. However, least KRS 512.020. appel- have directed a verdict favor of Graves’s motion for a directed verdict was lant Thomas as to his charge complicity only on “all charges” specifically Second, trafficking cocaine. the trial on the criminal charge. mischief Nor did improper commingling court’s object he to the instruction on criminal trafficking crimes of in cocaine and wanton counts, mischief. are multiple When there murder in the under which instruction proper procedure for challenging all three were convicted of wan- sufficiency particular of evidence on one requires ton murder reversal of those con- object giving count is to to the of an Third, appellant victions. Graves’s convic- Seay instruction on that count. v. Com tion complicity cocaine monwealth, Ky., 609 S.W.2d 128 should be reversed and remanded for a Commonwealth, Kimbrough v. Ky., 550 trial wrongful- new because the trial court S.W.2d 525 Graves also claims the ly allowed the Commonwealth to introduce support evidence was insufficient to his implied evidence which that someone con- conviction of first-degree wanton endan prosecu- nected with Graves contacted a germent of Kenneth Weathers. We be tion witness and told the witness not to participation high speed lieve his testify. Because the intro- sufficiently chase involved him in the en duced no evidence that Graves or someone dangerment support of Weathers to acting attempted suppress on his behalf in that regard. conviction testimony, the witness’s this evidence was prejudicial and could well have influenced per it Woods claims was error to n Graves’s conviction. mit the husband and father of "the two “glorify victims to the victims” with his APPELLANT THOMAS’S CONVIC- testimony. object Woods did not to this IN TION FOR TRAFFICKING testimony at trial we find the evidence COCAINE victims, did no more than humanize the Thomas, I As find no evidence to McQueen permissible which is evidence. support an instruction on Commonwealth, Ky., the trial court should have (1984), denied, cert. U.S. against directed a verdict the Common- S.Ct. 83 L.Ed.2d 205 Certainly, all of charge. wealth as had suggests that Thomas Thomas’s claim that his trial have should every purchasing huge intention of been severed from that of his co-defen- However, amount of the Com- cocaine. dants is devoid of merit. v. Com- Ware that Thomas never monwealth concedes monwealth, Ky., 537 S.W.2d 174 any quantity received of and the forth in opinion, For the reasons set this tragic evening events of this followed from imposed by the convictions and undisputed sentences fact that Thomas surren- $27,000 in these con- Jefferson Circuit Court dered to Woods but did not receive crim- drugs solidated cases are affirmed. his in return. KRS 218A.1412 867 in the accomplice an drugs is not buyer in a of degree trafficking as first inalizes seller); by his un- committed “knowingly “delivery” and crime controlled substance (La. Celestine, trafficking in” a number of con- 671 896 lawfully v. So.2d Louisiana 1996) including accomplice and cocaine is not an (buyer drugs trolled substances of 218A.010(28) by defines “traffic”: KRS crime committed in the “distribution” Alabama, manufacture, seller); v. 638 So.2d “Traffic,” Owes ... means to his sell, of cocaine distribute, (Ala.Crim.App.1993) (buyer or dispense, transfer 1383 manufacture, dis- crime intent the “sale” possess accomplice not an is tribute, seller); sell a controlled Arkan dispense, Long or v. by committed (1976) sas, substance. 742 542 S.W.2d 260 Ark. accom cannot be an of narcotics (buyer majority appears comfortable While by his drugs of plice illegal in the sale Thomas’ conviction on the basis affirming Hart, seller); P.2d 186 v. 787 Colorado contained at complicity of statute KRS (“the who conduct of one (Colo.App.1989) 502.020(1), explicitly a is such conclusion substance 502.040(1), delivery of the controlled explains takes by barred KRS con incident” to the criminal “inevitably is that: the controlled duct of one who delivers person guilty A is not under KRS Fisher, substance”); v. for an offense com- 502.010 or 502.020 (1993) Pa.Super. 627 A.2d 732 when: by person mitted another accomplice drugs cannot be (buyer (1) defined that his The offense is so by his sell “delivery” crime committed com- inevitably is incident to its conduct er). mission. statutory Commentary to this therefore, as a matter Thomas cannot one is provision explains that subsection law, accomplice as an statutory be liable apply to transactional offenses: intended trafficking in cocaine be for the crime of (1) exemp- provides for two Subsection presented indi all of the evidence cause imputed general doctrine of tions to “buyer” that he was the intended cates liability for conduct which aids addition, In the evidence transaction. this perpetration of crime.... The second would by the Commonwealth presented joins in a two- person for a who another court to instruct permit the trial that constitutes a party transaction could find Thomas they consequence crime.... As a of this ex- since the record principal a of the offense an alcoholic emption, purchaser that Thomas sold contains no evidence drink cannot be convicted as an accom- and the Common transferred cocaine provides a plice under statute possessed never wealth concedes that he penalty only for the seller. 218A.1412; See, cocaine. KRS alleged words, reasonably In other KRS 502.040 Commonwealth, Ky., 560 e.g. Butler complicity statute limits the reach of the Common Pilon purchaser being prevents drug wealth, Ky., 544 S.W.2d 228 A trafficking. number charged with purely presented a The Commonwealth interpreted this Model jurisdictions have for co- case circumstantial provision prosecution to bar Penal Code dealer) (the alleged by caine Woods complicity in and sellers for drug buyers driver), (the alleged dealer’s party the other the crime committed testimony relating preparations See, e.g., People v. Mani transaction. the admission the transaction ni, N.Y.2d 584 N.Y.S.2d cocaine he had the (1992) (a to McDuffie that a controlled Woods seller of N.E.2d 563 trial to allow the were sufficient accomplice pos not an substance is crime of on the court to instruct buyer); crime of his Robinson session (a as to Woods trafficking in cocaine Texas, (Tex.App.1991) Graves. While the evidence that Woods in the Degree Substance First the de- possessed quantity wantonly engaging a of fendant was in con- cocaine for sale grave duct created a risk of death was far from I overwhelming, feel that another [ ] to and that McDonald’s death whole, “under the as a evidence it [was was caused under circumstances mani- clearly for a find jury not] unreasonable to festing extreme indifference to human guilty.” the defendant Trowel v. Com- life. monwealth, Ky., 550 S.W.2d 530 you If find the under guilty defendant jury rationally, could have determined instruction, you say by your shall so evidence,

consistently with beyond the verdict and no more. a reasonable doubt that Woods had been in sale, possession of cocaine for and the trial explained above, As the Commonwealth deny court was correct to the motions for introduced insufficient evidence of defen- directed by verdicts made counsel for complicity dant in crime of Thomas’s the Virginia, Woods and Graves. Jackson v. in justify cocaine to the trial 443 U.S. 99 S.Ct. 61 L.Ed.2d 560 jury court’s the instruction of as offense. Because the trial court should

have a against directed verdict the Com- charge monwealth as to Thomas’s of Traf- THE WANTON MURDER ficking in a in the Controlled Substance CONVICTIONS First convic- Degree, his wanton murder Each of the three was con- tions must be reversed well because victed of two counts of wanton murder jury instructions intertwined the crimes under an instruction which read: required liability criminal for traffick- NO. MURDER []—WANTON prerequisite cocaine as a convic- defendant, ], you If do not find [ tions for wanton murder. guilty under Instruction No. and if Further, the form of the murder wanton defendant, ], you guilty [ find the of jury found all instructions under Trafficking in a Controlled Substance appellants guilty require three this Court Degree the First under Instruction No. regardless reverse those convictions you then will find him guilty under in cocaine. evidence if, if, only you this Instruction be- Commpnwealth have intro- may While the beyond lieve from the reason- support wan- duced sufficient evidence to able doubt all of following: ton murder based on one or instructions during a. That the course of Traf- more of the the roles in the car appellants’ in a ficking Controlled Substance chase,1 encouraged Degree consequence First and as a jury to find the defendants under guilty killed; thereof, McDonald was [ ] the other wanton murder instruction AND on and the premised participating b. That so Consequently, did so. this Court’s Trafficking in a on offense Controlled review not focus whether Com- does fact, given by 1. In the first instruction AND respect appellant trial court with doing, wantonly he was b. That in so correctly directed homi- assess engaging in created a conduct which liability cide on the basis the car chase: grave to another and there- risk of death defendant, Graves, Avery You will find the by caused the death of McDonald [ ] if, if, only under this Instruction manifesting ex- under circumstances you believe from the evidence to human life. treme indifference following: reasonable doubt all of the you guilty under this If find the defendant County, Kentucky, a. That Jefferson instruction, say your you so verdict shall day February, or about the 8th on and no more. 1995, he, by striking killed Mcdonald [ ] a car. [him her] result as it occurred or the evidence of whether introduced sufficient monwealth by the foreseeable foreseen or mur- was either justify any instruction on wanton to R. possibility.” instead, a reasonable der, must determine defendant as but we Fortune, Kentucky Crimi- Lawson and introduced at trial W. the evidence whether (LEXIS 2-4(d)(3), Law, at given. nal Sect. justified specific instruction the 1998). Commonwealth, Ky., 445 Fugate v.

675, 677 that trial court The line is the bottom given have judge The trial should never the as to this have instructed should only wanton murder instruction if the theory the second murder” “felony wanton integrated trafficking prove the offense be- presented which tended evidence (1) analysis only drug the most tortured that yond because doubt reasonable between relationship can a causal and un- imagine created a substantial alleged participation accidents appellants’ the that fatal auto justifiable risk (2) The Mc- occur, transaction and the deaths. drug and that the would away consciously Donalds were killed almost five miles this risk and disre- appreciated alleged drug from the site where the No evidence was introduced. garded. such supposed was to have oc- transaction did introduce testimo- The Commonwealth “ongoing”.at Furman, No transaction was curred. one of unindicted ny from. the time, majority’s attempt dealing that the “could accomplices, drugs that “inextricably describe the two offenses as very “people and that can dangerous” be imaginative, deals,” is but devoid of a produced intertwined” get drug over killed sup- factual authoritative meaningful upon types no of risks had ended. port. drug jury. The transaction trial court instructed the which the involving The car chase which followed Thomas’s accident The fatal automobile had discovery that the cocaine not been the parties five miles from two innocent him delivered to cannot be melded into the attempted transaction is drug scene of the prior attempt drug at a transaction proven by the scope of risks or this sheer will of Commonwealth traf- drug to be incident to majority opinion. Labeling one’s own re- instruc- proof, such ficking. Without as “clear infer- sult-oriented conclusions wanton improper tion and all of the presented from the evidence ence[s] must be reversed. murder convictions so, case” does not make them and the speed that

majority’s high COUNSEL, McDUF- GRAVES’S merely bullets were an whizzing chase & THE FIFTH FIE/FURMAN transaction attempt completing drug AMENDMENT interpreta- exceeds even the most liberal trial, introduced At the Commonwealth inferences. KRS tion of reasonable Furman, with McDuffie and evidence that 218A.1412 the boundaries of defines had cut a deal whom the Commonwealth a con- degree crime of first testimony, considered invok- exchange for substance, it no room for trolled and leaves to remain silent under rights their interpretation. majority’s expanded States Amendment the United Fifth Specifically, Common- Kentucky provision Constitution. Penal Code (1) an introduced evidence: relationships, causal KRS wealth explains which 501.060(3), notes, approached McDuffie wantonly person ... unknown “When Fifth,” after “plead he suggested an particular result is element causing attor- to see Graves’s offense, if McDuffie went element not established (2) Stewart; McDuffie Mr. ney, is not within the risk the actual result ” “take the Furman to persuade tried to plain the actor is aware.... “[T]he addition, In the Com- Fifth Amendment.” of the statute is to have the causa- intent “when Furman whether monwealth asked in all in terms tion framed situations issue Aaron talking you about degree [McDuffie] harmless as the first Fifth, pleading you did he in suggest that a controlled substance conviction. The go talk to Mr. attorney guilt Graves’ like he evidence of on the charges of wanton mischief, go endangerment, wanted to talk criminal speeding to?” Furman answered disregarding a traffic negative. Finally, closing argu- in control device is and, ment, overwhelming, respect prosecution to those underscored this convictions, I testimony by believe the inadmissible evi- reminding “peo- commentary regarding dence and McDuf- ple have come and talked to [McDuffie] thoughts fie’s and Furman’s about invok- taking about the Fifth ... there’s been a Fifth Amendment was lot of harmless pressure on him others error contemplated RCr 9.24. I testify.” would, however, reverse Graves’s convic- majority The addresses Graves’s claim degree tion for in a first con- of error stating, “Although McDuffie trolled substance. did not identify urged who had him to appellant I would reverse Thomas’s con- testify, implication refuse to the clear viction for in a controlled sub- it was someone connected with degree stance first and both of his wanton Graves. We have held this kind of evi- convictions, appellant murder Woods’s con- dence admissible as inconsistent with a murder, victions for wanton ap- and both However, defendant’s innocence.” pellant Graves’s conviction for trafficking Commonwealth absolutely introduced no degree controlled substance first appellant evidence to connect Graves or his wanton murder I convictions. would his any attempt counsel with to get appellants’ remand all three cases for fur- McDuffie or testify. Furman to refuse to proceedings opin- ther consistent with this The Commonwealth conceded that Mr. ion. speak Stewart did not with McDuffie or

Furman, attempt and the to connect this STUMBO, JJ., join JOHNSTONE supported evidence to cannot be this dissent. by a even reasonable inference based on ... trial. “It is a rule jurisdiction this that a that evidence wit-

ness has been threatened or in- otherwise attempt

fluenced in an suppress testimony pros- is admissible in a criminal PHILLIPS, Leigh Appellant, Jonathan only ecution where the made threat was by, Camp- or on behalf of the accused.” Kentucky, COMMONWEALTH Commonwealth, Ky., bell v. Appellee. 528, 531 Where there is no evi- dence connect the defendant with the Johnson, Appellant, John Demarco attempt suppress testimony, the testi- mony clearly is Id. inadmissible. Kentucky, Appellee. question, Without evidence and commen- 1997-SC-0519-MR, Nos. tary type highly prejudicial this 1997-SC-0536-MR. inflammatory. opinion rec- majority ognizes labeling type this this of evi- Supreme Kentucky. Court dence “inconsistent with a defendant’s in- Feb. 2000. Particularly nocence.” in a case such as Denied June 2000. Rehearing one, where the case for premised accomplice liability cocaine is on evidence, I

and circumstantial cannot con-

clude that this inadmissible evidence was

Case Details

Case Name: Graves v. Commonwealth

Court Name: Kentucky Supreme Court

Date Published: Jan 20, 2000

Citation: 17 S.W.3d 858

Docket Number: 96-SC-0342-MR, 96-SC-0345-MR and 96-SC-0346-MR

Court Abbreviation: Ky.