Cook v. Com., No. 2002-SC-0486-MR.

• Decision Date: 18 March 2004
• Docket Number: No. 2002-SC-0486-MR.
• Citation: 129 S.W.3d 351
• Parties: Lester E. COOK, Jr., Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.
• Court: United States State Supreme Court — District of Kentucky

129 S.W.3d 351

Lester E. COOK, Jr., Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.

No. 2002-SC-0486-MR.

Supreme Court of Kentucky.

March 18, 2004.

Ron Reynolds, Williamsburg, Counsel for Appellant.

Gregory D. Stumbo, Attorney General, William Robert Long, Jr., Assistant Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.

Opinion of the Court by Justice COOPER.

On August 20, 2001, Billy Joe and Lisa Rains were standing in the front yard of their home on Bee Creek Road in Whitley County, Kentucky, when a 1984 Chevrolet Corvette automobile operated by Appellant, Lester E. Cook, Jr., drove into their yard, striking and killing Mrs. Rains. Appellant was subsequently convicted by a Whitley Circuit Court jury of wanton murder, KRS 507.020(1)(b), and sentenced to imprisonment for life. He appeals to this Court as a matter of right, Ky. Const. § 110(2)(b), contending that the trial court erred by: (1) overruling his motion to exclude for cause all jurors who had been exposed to media reports about the incident; (2) failing to suppress his blood alcohol test results; (3) allowing the Commonwealth to introduce evidence of his refusal to take a blood alcohol test; (4) permitting the Commonwealth to introduce evidence that the victim was pregnant at the time of her death; (5) overruling his motion for a directed verdict of acquittal; and (6) permitting the Commonwealth to introduce evidence of a previous conviction that had been set aside. He also asserts that KRS 507.020(1)(b) is unconstitutionally vague. We now affirm Appellant's conviction but vacate his sentence and remand for a new penalty phase trial.

On the day Mrs. Rains was killed, Appellant and his neighbor, Otis Earls, Jr., had driven to Jellico, Tennessee, where they purchased two cases of beer and "three or six" bottles of malt liquor. According to Earls, the only witness who testified to Appellant's activities prior to the fatal collision, Appellant placed the alcohol in the back of his pickup truck and stated, "If we can't wait till we get home to drink them, we don't need to be drinking." The two men returned to Appellant's residence around 3:30 p.m. and each drank a beer. Appellant's girlfriend, Annette Miller, later arrived and she and Appellant stayed inside the house for approximately an hour and a half while Earls mowed Appellant's lawn. Earls did not know whether Appellant consumed any alcohol while inside the house. Appellant and Miller then left the premises for another hour to an hour and a half. They left two bottles of beer for Earls to drink. Earls did not think Appellant took any alcohol with him and did not know whether Appellant consumed any alcohol during this absence.

Appellant and Miller returned to Appellant's residence around 6:00 p.m., and they and Earls each drank two more beers. Miller then asked Appellant to go to a store and purchase some cigarettes for her. Appellant and Earls proceeded to the Corvette, each carrying another beer. Earls testified that he had personally observed Appellant consume three or four beers prior to that point in time.

Upon reaching Bee Creek Road, Appellant told Earls he was going to "show him what his car had," then spun the car's tires and began speeding. According to Earls, Appellant was driving so fast that he (Earls) feared that "if he didn't slow down, we would wreck." As they entered a curve, Appellant lost control of the vehicle, which then struck a guardrail, tearing the bead off the rim of one of the tires, which propelled the car off of the roadway, through a ditch, and into the Rainses' front yard. The Commonwealth's accident reconstructionist, Kentucky State Police Trooper James Trosper, estimated that Appellant's car was traveling between 48 and 49 miles per hour when it entered the ditch. The speed limit was 55 miles per hour.

Appellant's car struck Mrs. Rains from behind, throwing her onto the hood of the car, and into the air, from where she fell to the ground, rolled over a number of times and came to rest on her back. Two neighbors, Kelly Centers and Donna Mahan, were soon on the scene. Centers attempted cardiopulmonary resuscitation (CPR) but Mrs. Rains never resumed breathing. She was transported to Baptist Regional Medical Center in Corbin where she was pronounced dead.

Deputy Christopher Stack of the Whitley County Sheriff's Department was one of the first police officers to arrive on the scene. He subjected Appellant to several field sobriety tests and testified that Appellant failed them all. A videotape of Appellant's efforts during these tests was played at trial and a jury could fairly conclude from viewing the videotape that Appellant was intoxicated. Stack arrested Appellant and transported him to Baptist Regional Medical Center to obtain blood and urine samples in order to test for alcohol or drugs.

At the hospital, Stack read Appellant the implied consent warning required by KRS 189A.105(2)(a). Appellant stated that he would not give a blood sample until he had spoken with an attorney. Stack informed Appellant that he could not speak to an attorney unless he submitted to the test. When Appellant declined to submit to the test, Stack asked Kentucky State Police Trooper David Lassiter to obtain a search warrant. Lassiter prepared an affidavit, obtained the warrant from a judge, brought it to the hospital and served it on a phlebotomist who withdrew a sample of blood from Appellant's arm. The sample was taken approximately four hours and forty-five minutes after the collision. A test of the sample revealed a blood alcohol concentration of 0.09 grams per 100 milliliters. See KRS 189A.005(1). The Commonwealth's expert, Dr. Greg Davis, estimated by back-extrapolation that Appellant's blood alcohol concentration at the time of the collision would have been between 0.16 and 0.185 grams per 100 milliliters.

I. PRETRIAL PUBLICITY.

Prior to trial, two Corbin newspapers and one Lexington newspaper published a total of twelve articles about the case. Most of the articles mentioned that Mrs. Rains was four weeks pregnant at the time of her death, and several detailed Appellant's past illegal conduct, including driving under the influence of alcohol (DUI) and domestic violence charges. A few articles described a fatal accident in 1971 following which Appellant pled guilty to DUI and involuntary manslaughter in the first degree. Appellant argues that the trial court erred in refusing to strike for cause all jurors who had read any articles about the case. The trial judge overruled the motion but permitted individual voir dire of any juror who admitted having any prior knowledge of the case. He excused for cause every juror who admitted to having already formed an opinion about the case and every juror who remembered reading about the 1971 case. Of the twelve persons selected for the final jury, five had read newspaper accounts of Mrs. Rains's death but none had formed an opinion as to Appellant's guilt or innocence or knew of the 1971 incident.

A criminal defendant has the right to an impartial and unbiased jury. RCr 9.36(1); Butler v. Commonwealth, Ky., 387 S.W.2d 867, 868 (1965). However, the party alleging bias bears the burden of proving that bias and the resulting prejudice. Caldwell v. Commonwealth, Ky., 634 S.W.2d 405, 407 (1982) (citing Watson v. Commonwealth, Ky., 433 S.W.2d 884 (1968)). No implied bias arises from mere juror exposure to information about the case; rather it must be shown that the exposure actually biased the juror. Gould v. Charlton Co., Ky., 929 S.W.2d 734, 739 (1996). As stated in McQueen v. Scroggy, 99 F.3d 1302 (6th Cir.1996):

There is no per se rule that mere exposure to media reports about a case merits exclusion of a juror. To the contrary, in order to merit disqualification of a juror, the media reports must engender a predisposition or bias that cannot be put aside, requiring the juror to decide a case one way or the other.

Id. at 1319.

The decision whether to excuse a juror for bias lies within the sound discretion of the trial court. Grooms v. Commonwealth, Ky., 756 S.W.2d 131, 134 (1988). The trial judge did not abuse his discretion in this case. He conducted individual voir dire of each juror who had prior knowledge of the case and excluded anyone who knew about Appellant's previous accident or had already formed an opinion as to his guilt. He did not attempt to rehabilitate jurors by, e.g., inquiring whether they could put their knowledge or opinions aside and render a fair verdict on the evidence. Montgomery v. Commonwealth, Ky., 819 S.W.2d 713, 717-18 (1991). As the law only requires impartial jurors, not ones who are ignorant or uninformed, a trial judge is not required to strike for cause jurors who have some information about the case but have not yet formed an opinion as to its outcome. McQueen, supra, at 1320; Furnish v. Commonwealth, Ky., 95 S.W.3d 34, 45 (2002); Bowling v. Commonwealth, Ky., 942 S.W.2d 293, 299 (1997) (citing Mabe v. Commonwealth, Ky., 884 S.W.2d 668 (1994)).

II. BLOOD ALCOHOL TEST RESULTS.

Appellant asserts that his blood alcohol test results should have been suppressed because Stack refused his request to contact an attorney prior to testing.¹ Stack testified that he brought Appellant to the hospital between 8:00 and 9:00 p.m. on August 20, 2001, and read Appellant the implied consent warning pursuant to KRS 189A.105(2)(a). Appellant expressed his desire to consult with an attorney prior to taking the blood test but Stack refused. Stack described the conversation as follows:

A: He just told me he didn't want to take the test until he talked to his lawyer.

Q: So, when he asked you for a lawyer you took that as a refusal. Is that correct?

A: No. Then I said he don't get a lawyer unless you take my test and he said, well, I'm not taking your test.

Q: So, if you take the test you get a lawyer and if you don't take the test you don't get a lawyer. Is that right?

A:...