*1 strong of the light Accordingly, order Madison Considered is affirmed. Appellant’s guilt the weak Circuit Court evidence of evidentiary support ness for his All concur. theory, agree the trial
alternative we judge Appellant’s “newly discovered
evidence,” in na only impeaching which is
ture, is not of “such decisive value force would, certainty, with reasonable
change probably change the verdict or ... grant if a trial result new should be Commonwealth, supra,
ed.” Collins at LOVE, Appellant, Christopher 576. also affirm the trial court’s de We Kentucky, COMMONWEALTH nial for Appellant’s motion for funds Appellee. As con ballistics tests on the car doors. No. 1999-SC-0639-MR. such judge, cluded tests would prove at best that the holes created Supreme Kentucky. Court by firing through 9-mm the door bullets only rele Feb. 2001. the outside surface. The vance of that fact would be circumstantial Rehearing Oct. Denied support Appellant’s for unsubstantiated Furthermore, theory of case. funds are authorized if ballistics tests Kentucky
use State Police Forensic imprac
Laboratories Section is considered 31.185(1).
tical. KRS no such There is in the record. judge do the trial
Nor we believe in denying his discretion an eviden-
abused
tiary hearing on these motions. support
filed numerous affidavits his trial, including for a new his
motion
own. The Commonwealth countered Riley’s denying sworn
Canter’s statement
allegations reaffirming trial testi his af
mony. Appellant responded with more portions impeaching
fidavits of Canter’s sug
sworn statement. does might
gest what additional evidence presented evidentiary hearing
have such evidence could overcome the how “newly
fact discovered evidence” is impeaching, thus in
merely collateral and a new trial.
sufficient mandate *3 Holt,
Emily Department of Public Advo- Frankfort, cacy, for Appellant. Counsel Chandler, General, III, Attorney A.B. Floyd, Jr., Attorney Samuel J. Assistant General, General, Attorney Office of Crim- Division, Frankfort, inal Appellate Counsel for Appellee.
COOPER, Justice. early morning hours In the of December 13, 1997, a accident on Louis- three-car Expressway eastbound ville’s Watterson lives and claimed the of two individuals injured A jury seven convicted others. Love, Appellant, counts Christopher two murder, of wanton counts of assault in the degree, first one count degree, four of assault third counts degree, oper- fourth one count each of and a suspended a motor ating vehicle motor operator’s operating license and the influence of alco- vehicle while under prison hol. He was for twen- sentenced ty years to this as a appeals and Court 110(2)(b). right. Ky. § Const. matter of a.m. on At 2:21 December Shaw, Laser, by Chrysler driven William onto the eastbound lanes of Wat- merged Expressway terson northbound Shaw, and Dixie drunk Highway. lanes of and methamphetamines amphetamines, minivan, to notice a Ford Aerostar failed Vinson, and prematurely driven Clark a.m., merged over the median. At 2:26 Love crested raised The colli- hill flip ap- his Ford Thunderbird and sion the minivan three times proached high scene at a side, the accident rate passenger perpendicu- and land on its speed. Eyewitnesses Appel- estimated Watterson, facing lar with its nose seventy speed ninety per lant’s miles ejected the barrier wall. Vinson was Appellant successfully hour. swerved to through the front windshield onto the partially blocking miss the cruiser highway. Shaw’s vehicle struck the barri- lanes, minivan, struck left two wall, tires, flattened left side er its flipping killing it onto him Vinson to a stop express- rolled further down the instantly. The Thunderbird then struck way. *4 Ochs, Christopher soldier who also died accident, At the site of the eastbound instantly. bystanders, including Six other highway is a Watterson three-lane for officers, police injured two as a result were through by traffic white intermit- divided Thunderbird, being the struck the lines. A hill tent small lies to the west of minivan, or debris. The Thunderbird then scene. An emergency the lane borders rig careened off of the tractor-trailer lane, left the with a concrete barrier wall perpendicularly crashed into the barrier dividing the emergency lane from west- wall, injuring Appellant pas- both and his right bound traffic. To the of the through senger, Kimberly Morris. lanes, separates a raised median the en- There at were no skid marks the scene ramp trance from Highway Dixie attributable to the Thunderbird. No one posted speed Watterson. The limit is 55 saw on lights brake the Thunderbird per miles hour. police as it swerved around the cruiser. unopened Four opened and two beer cans accident, Immediately after the occu- found the inside Thunderbird. pants several eastbound vehicles Emergency personnel medical service tes- stopped to render assistance. David Mor- Appellant tified that smelled of alcohol. parked rison his rig tractor-trailer be- Appellant drinking eight admitted to beers tween Vinson’s minivan and Shaw’s night. hospital, At Appellant the re- Chrysler placing and started red warning cooperate police fused to or hospital triangles on A group the road. of Fort following staff. The its hospital, pro- own soldiers, Ochs, Knox including Christopher cedures, placed Appellant four-point re- stopped a.m., also aid. At render 2:23 sample straints and drew a blood at 4:25 Shively police arrived scene testing Appellant’s a.m. Results from blood cruisers. They parked one cruiser serum revealed a alcohol blood concentra- ramp block the entrance High- Dixie (BAC) tion At 6:15 of 0.241%. a.m. addi- way and the other block the left and tional Appellant blood was drawn from lanes center Two of Watterson. pursuant to a search warrant. KRS the officers went to aid Vinson who was 189A.105(2)(b). from testing Results seriously injured conscious but so that the sample BAC some revealed a four hours helicopter officers radioed for a to trans- after the accident of 0.17%. officer, him A port hospital. to a third Clark, cadet had been instructed to move I. THE OF POLICE ADMISSION
his cruiser from ramp the entrance to fur- AND URINE BLOOD TEST. provide ther west on the Watterson warrant, warning top- additional time for motorists Pursuant search ping the rise sample above the accident. of blood drew moment he entered the Appellant determine if specimen a urine
collected opportunity He no Appellant emergency was intoxicated at the time of room. had beverages judge The trial overruled so ingest accident. additional alcoholic suppress fact, Appellant’s pretrial motion to the test results. to skew samples these and al- results of tests on by providing delay benefitted introduce that lowed the Commonwealth to body to oxidize alco more time claims error trial. system. hol in his results were test elapsed too much time between because properly admitted. the collection of blood accident and re Nor was it error to admit the Additionally, argues that the sample. 189A.005(1) urinalysis. sults of test of the results of urine admission concentration,” key defines “alcohol under the influence driving was error as driver in finding term in violation Kentucky through breath or is measured 189A.010(l)(a), in terms milliliters
blood, alleges that not urine. He further or liters breath. blood court allowed the impermissibly argues that since the definition does Commonwealth to use various tests urine, to admit the it was error include *5 alcohol level extrapolate Appellant’s blood sample the urine test results. at of the time the accident. 189A.005(1) to mention failure of KRS Appellant’s prosecution. time of At the the of admissibility not affect urine does 189A.010(1) pertinent part: in KRS stated sample prove guilt under urine evidence or in operate A shall not 189A.010(l)(b). not We need decide KRS any- of a vehicle physical control motor Appellant of a could convict whether in state: where this the section of stat violating “per the se” (a) in the alcohol concentration While 189A.010(l)(a), ute, on the re based more is 0.10 or based his blood breath sample; urine for this a test sults of of on the definition of alcohol concentration determining in was relevant evidence 189A.005; in KRS violating of “un he was the whether (b) influence the of alco- under While statute, the der the influence” section of hol. 189A.010(l)(b). in statutory guilt. asserts that the four hours be of structed on both bases (when last oper the he was are contem tween accident note that urine tests We also vehicle) (3), 189A.103(1), collection of a motor and the ating plated by KRS represents great too sample his blood Appellant’s contention time intoxicated
lapse
prove
used the
impermissibly
In
Commonwealth
operating a motor vehicle.
Com
Wirth,
extrapolate his BAC at the
tests to
II. THE SERUM. ‘the reasonable BLOOD probability the evidence has Before the Louisville obtained the ” aspect.’ been altered in material procure warrant search blood and samples, hospital Rabovsky, supra, (quoting urine drew blood at 8 United Appellant pursuant hospital proce- Cardenas, States v. 864 F.2d dures. This occurred at 4:25 a.m. An em- (10th denied, Cir.1989), cert. 491 U.S. then ployee centrifuged sample precip- (1989)). L.Ed.2d 109 S.Ct. itating portion solid the blood from matter, Important present to the Rabov- (the serum). liquid A portion lab tech- sky “[g]aps also held that the chain nician then tested the blood serum for the normally go weight of the evidence results, presence drugs. of alcohol or admissibility.” 8; rather than its Id. at a.m., at 5:40 recorded revealed a BAC of Lott, see also United States v. 854 F.2d four 0.24%. raises claims of er- (7th Cir.1988). 244, 250 concerning testing ror of his blood serum. standards, Under these the trial judge properly
A. admitted the blood serum test Custody. Chain of results. “persuasive The record contains Appellant alleges error because the evidence” that Appellant’s sample was prove complete Commonwealth failed to free, tamper testimony as the of the lab custody chain to the centri performed technician proved who test process. fuge trial, At the phlebotomist sample sealed during remained who drew the blood lab technician centrifuge process. It was for the performed who testing the actual testified *6 given to decide the to be weight to'the custody. as the chain of only ab blood serum evidence. sent member of custody the chain of was centrifuged the technician who sample. B. Blood Serum versus Whole Blood. However, performed the technician who testing further testified that in the Blood serum occurs when the solid centrifuge process the tube containing the cellular material in precip whole blood is sample placed is unopened the centri out, only itated leaving liquid portion fuge spun complete, down. Once called serum. this serum When is tested given testing technician, is tube who higher for alcohol a BAC often results as open is the first sample. the sealed more liquid alcohol is concentrated in the Rabovsky In v. Ky., 973 Thus, Appellant argues serum. 6 thoroughly analyzed we S.W.2d hospital’s test of his blood serum should of custody Kentucky. chain law in As to have it accurately been excluded as did not blood, custody the chain of ensures that depict Appellant’s level intoxication at sample sample tested was the same the time testing of either the or the acci Lawson, drawn the individual. R. dent. Additionally, notes that Handbook, Kentucky Law Evidence the definition of “alcohol concentration” in (3rd 11.00, 1993). p. § 592 ed. Michie 189A.005(1) does not include blood “[e]ven with to sub- serum, hearing and that a Daubert was not clearly which stances are not identifiable held to validity determine the scientific blood], distinguishable it is [like unnec- blood serum. Daubert v. Merrell Dow essary perfect to establish a chain of custo- Inc., Pharmaceuticals, 579, or to 509 U.S. 113 dy possibility tamper- eliminate all misidentification, ing long 2786, 125 so as there is S.Ct. 469 L.Ed.2d 822 necessary accurately re the BAC judge’s
A trial decision with reflect 189A.010(l)(a) KRE under spect relevancy of evidence convict under KRS as 403 an abuse contradictory expert 401 and is reviewed under testi evinced v. fact, standard. Commonwealth subject. discretion mony on the word (1999); 945 English, 993 S.W.2d during never ei “Daubert” was uttered Commonwealth, Ky., v. 979 Barnett hearing or the trial. suppression ther (1998). There no abuse of S.W.2d trial, expert At offered his own admitting made discretion evidence that serum, subject of blood witness Appellant’s intoxication a determination of testify serum even he did not that blood probable more than not. KRE 401. Ap unreliable, scientifically testing was pellant’s go weight concerns produce the test results would evidence, Both sides admissibility. not its than test results on higher BAC level testimony to BAC am presented expert Additionally, oth blood. numerous whole serum—anywhere plification blood jurisdictions er allow the admission evidence, percent. 10 to 35 From this evidence, requiring serum without blood jury the results and deter could evaluate long hearing, so as the Daubert give the serum.1 weight mine what whole blood conver provided appropriate dispositive Nor Pizza v. information. See Domino’s sion 189A.005(1) serum Gibson, (Fla.1996); People not mention blood does 668 So.2d in the of “alcohol concentration.” Green, definition Ill.App.3d 228 Ill.Dec. sample supra, Like the discussed urine (1997); Common N.E.2d statute to mention blood failure Michuck, 1; supra, Reidweg wealth v. note inad- does render the serum evidence Texas, (Tex.Crim.App. do we need to determine missible. Nor 1998). could find a defendant
whether
8:030(2).
500 EAR
C.
189A.010(l)(a)
guilty under KRS
based
It
solely on the BAC of
blood serum.
complains that
the re
permissible
for the
to consider
8:030(2)
KAR
were not
quirements of 500
attempting to decide
when
hospital
drew
complied with when
*7
motor
driving
was
a
Appellant
whether
in
Appellant
accordance with
blood
influence of alcohol”
vehicle “under the
procedures at 4:25 a.m. KRS
its own
189A.010(l)(b).
KRS
under
189A.103(1)
(3)
per
if a
provide that
and
arising
out
son is arrested for
offense
Appellant’s argument that the
189A.010(1)
KRS
or
a violation of
Daubert
court was
to conduct a
required
breath,
189.520(1), a
or urine
KRS
blood
serum
hearing
with
the blood
administered
may be
at the direction
test
preserved
appellate
evidence was not
in
peace
and
accordance
officer
trial, Appellant’s objection to
At
review.
Appellant
regulations.
administrative
relevancy,
premised upon
the evidence was
hospital
not under arrest when the
401,
was
reliability, KRE
KRE
not scientific
blood,
was not
drew his
blood
He
assert that blood serum
did not
at
the di
foundation,
request
drawn
under
upon
rest
an unreliable
tests
2799,
Thus,
pro
Daubert,
597, 113
of a
officer.
peace
at
rection
509
at
S.Ct.
U.S.
8:030(2)
by 500 KAR
required
test
do not
cedures
that blood serum
results
Michuck,
v.
might
if no
whole blood. See Commonwealth
be reached
1. A different result
Pa.Super.
on
presented
mittedly drew the defendant’s blood sam- sample was drawn tested. We ple the direction officer. any reiterate that evidence that the absent in that The issue case was whether the di- request was drawn at the blood had to the “search.” defendant consented there police, rection of the was no “state action.”
Appellant’s
argument
police custody
solely
inwas
is based
on the
III. THE SUSPENDED LICENSE.
testimony of Officer Raymond Sutherland.
One count of
the indictment
accident,
Cromity
After the
Sam
Officer
charged Appellant
operating
a motor
dispatched
hospital
to learn the
vehicle on
suspended
license.
identity of the driver of the Thunderbird.
186.620(2).
stipulated
Appellant
to that
Cromity
if
Appellant
asked
he had been
presence
fact out of the
Appellant
the driver
the vehicle and
stemming
any prejudice
order to avoid
affirmatively. Cromity
answered
then
proof
fact.
regard,
of that
Appellant
read
rights,
his Miranda
which Appellant
requested
also
court to ad
Appellant immediately invoked. Miranda
driving
monish the
to consider
on
not
Arizona,
suspended
U.S.
86 S.Ct.
license
evidence of “ex
(1966). Cromity
L.Ed.2d 694
then
treme
to human life.” KRS
ceased
indifference
507.020(l)(b).
questioning
trial court
proceeded
declined
give
proposed
obtain a search
admonition.
warrant. Officer Suther
now claims it was error to refuse to give
land remained
the room while Cromity
admonition,
not exclude
trial,
comments
obtained
warrant. At
Sutherland
during
made
ar
prosecutor
closing
opined
“not in
his cus
guments,
proceed
and to not bifurcate the
tody,
in police custody.”
but was
If this
ings. Only
preserved.
claim was
first
issue,
were a Fifth Amendment
that state
might
import.
ment
have some
Under
prosecutor
equate driving
did
Miranda,
a person
custody
when
a suspended
license with
in-
“extreme
“deprived of his
freedom action in
difference
human
life.”
*8
way” by
significant
a law enforcement offi 507.020(l)(b).
prosecutor merely
ar-
Miranda,
444,
cer.
86
U.S. at
S.Ct. at
times,
Appellant
gued, several
knew
1612.
the Fifth Amendment is
a
driving
suspended
he was
license.
implicated by
taking
not
a
the
of
blood Remember,
did
plead guilty
not
California,
sample. Schmerber v.
384 U.S.
crime;
necessary
to this
it was
for the
S.Ct.
Per KRS
cannot be
THIRD-
IV.
INSTRUCTIONS ON
guilty
a criminal
unless
found
offense
DEGREE ASSAULT.
person
engaged
“has
in such conduct
to
Appellant assigns
respect
error with
intentionally, knowingly, wantonly or reck-
the instructions on assault
in the third
lessly
may require,
respect
as
law
with
officers,
degree pertaining to two police
offense, except that
each element
Bill
Matthew Glass and
Green.
requirement
apply
any
does not
third-degree
liability,
was convicted of
as
imposes
offense which
absolute
Green;
as to Officer
he was convicted of
(Emphasis
add-
defined KRS 501.050.”
ed.)
first-degree
provides
assault as
Officer Glass.
KRS 501.050
that a
culpa-
offense
a
may
guilty
be
of an
absent
508.025(l)(a)l,
per-
Pursuant
a
to KRS
only if
is a
ble mental state
the offense
third-degree
guilty
son is
assault when
misdemeanor,
or
or is defined
violation
a
weapon
he
with a
“[rjecklessly,
deadly
penal
By
a statute
its
by
outside
code.
instrument,
dangerous
intentionally
terms,
apply
own
KRS 501.050 does
injury
or attempts
physical
causes
to cause
degree,
the offense of assault
the third
state, county,
...
or federal
city,
[a]
D felony
which is
and defined
Class
peace officer.” The offense is identical
Thus,
code.
penal
within
assault,
508.030,
fourth-degree
except
508.025(l)(a)l
im-
interpreted
be
as
cannot
peace
that the victim’s status
officer
liability
posing
respect
absolute
A mis-
enhances the offense from a Class
defined
element of the
offense.
D felony.
demeanor to Class
While
508.025(l)(a)l
“[ajlthough
culpable
provides
recites a
mental
KRS 501.040
des-
respect
culpable
expressly
to the
act
no
mental state
state
defendant’s
(intent
offense, a
in a
ignated
defining
and the result thereof
or reckless-
statute
ness),
culpable
may
recite a
mental
mental state
nevertheless
culpable
does not
of such of-
respect
enhancing
required
state with
ele-
the commission
ie.,
fense,
ment,
all
status of
victim as a
or with
to some or
thereof,
pro-
if the
third- material
elements
peace officer.
tendered
necessarily involves such
degree assault
instructions
that would scribed conduct
added.)
culpable
(Emphasis
mental
required
have
to find him
state.”
Covington
Ky.App.,
recklessly
physi-
if
that offense
he
Ap-
injury
they
officers
were
FIRST ACCIDENT.
OF
VI. SUFFICIENCY
29, 1999,
January
On
THE EVIDENCE.
objection
consolidating
filed
Shaw,
argues
that of
the driver who
William
sufficient
at fault in the first accident and who Commonwealth did
adduce
is,
E.g.,
higher
Casey Common
Since a
included
in fact
offense.
lesser
offense
against
higher
wealth,
principle,
Ky.,
a defense
Howev
827 Commonwealth, 102 Ky., 805 S.W.2d prove wanton murder under (1991), grounds, extreme overruled other Com- exhibiting circumstances indiffer- Ky., 805 Burge, to human life. The standard of re- monwealth v. ence Commonwealth, (1996); Ky., is that set forth in Commonwealth v. Hamilton v. view (1991). Benham, (1977). Ky., 816 186 560 S.W.2d S.W.2d 539 There, “if we stated that under the evi- whole, clearly un- dence as would PHOTOGRAPHS VII. PREJUDICIAL guilt, only for a find reasonable AND STATEMENTS. the defendant is to a directed then entitled Commonwealth, in its case acquittal.” at 187. A verdict Id. review chief, portrayed Army life of U.S. sol of the evidence as a shows that it whole stopped dier Ochs as a who hero render
was not unreasonable for a
to find
senselessly
assistance
was
killed.
and who
guilty of
murder.
wanton
In this
Commonwealth intro
regard,
507.020(l)(b) states:
photographs
duced three
Ochs. One was
(1) A person
is
murder when:
large professional photograph
of Ochs
army
uniform. The other two showed
(b)
to,
Including,
not limited
body
Ochs’s
uncovered
accident
operation of a motor vehicle under
witness,
Mason,
Finally,
scene.
Otis
one
manifesting
circumstances
extreme in-
pushed
testified that
had
him out of
Ochs
life,
wantonly
difference
human
he
path
Only
vehicle.
ad
Love’s
engages in conduct which creates a
photograph
object
mission of the life
risk
grave
person
of death to another
ed
to at trial.
seeks
review
thereby
and
causes
death of an-
other two matters under RCr 10.26
person.
other
palpable error.
601.020(3)
states wanton conduct oc-
Appellant’s argument
The thrust of
person
curs when a
“is aware
and con-
photographs
testimony
that
and
are
sciously disregards a
and un-
substantial
unduly prejudicial.
irrelevant and
Howev
justifiable risk that the
will occur
result
er,
many
we have held
life
times
circumstance exists.
risk
photographs
testimony concerning
degree
must be of such
nature
victim are
to remind
admissible
“the
disregard
gross
thereof constitutes a
devi-
living person
the victim
once a
ation
of conduct
standard
that a
just
Templeman
a statistic.”
reasonable
observe in
would
Commonwealth,
259,
785
261
Ky.,
S.W.2d
situation.”
(1990);
Commonwealth, Ky.,
Talbott v.
968
Appellant was
speeding;
was intoxi-
(1998);
S.W.2d 76
Bussell v. Common
cated; and,
tellingly,
most
he did not slow wealth,
(1994),
Ky., 882
cert.
S.W.2d
or attempt
stop upon seeing
down
a denied,
115 S.Ct.
U.S.
blocking
car
police
the road.
Instead he
(1995); McQueen
L.Ed.2d 1111
v. Com
attempted
car
swerve around
monwealth,
Ky., 669 S.W.2d
traveling
reported seventy
nine-
denied,
893, 105
cert.
469 U.S.
S.Ct.
ty miles
hour.
conduct
This
exhibited
269,
degree assault officers. The
injury to two judge only given by the
instructions