381 S.W.3d 215 (Ky. 2012), 2011-SC-000318-MR, Sluss v. Commonwealth

Docket Nº:2011-SC-000318-MR.
Citation:381 S.W.3d 215
Opinion Judge:NOBLE, Justice.
Party Name:Ross Brandon SLUSS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
Attorney:Jerry Alan Patton, P.S.C., Prestonsburg, KY, Counsel for Appellant. Jack Conway, Attorney General, Perry Thomas Ryan, Assistant Attorney General, Office of Attorney General, Frankfort, KY, Counsel for Appellee.
Case Date:September 20, 2012
Court:Supreme Court of Kentucky
 
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381 S.W.3d 215 (Ky. 2012)

Ross Brandon SLUSS, Appellant,

v.

COMMONWEALTH of Kentucky, Appellee.

No. 2011-SC-000318-MR.

Supreme Court of Kentucky.

September 20, 2012

Page 216

[Copyrighted Material Omitted]

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Jerry Alan Patton, P.S.C., Prestonsburg, KY, Counsel for Appellant.

Jack Conway, Attorney General, Perry Thomas Ryan, Assistant Attorney General, Office of Attorney General, Frankfort, KY, Counsel for Appellee.

OPINION

NOBLE, Justice.

After a jury trial, Appellant Ross Brandon Sluss was convicted of murder, assault in the first degree, two counts of assault in the fourth degree, driving under the influence of intoxicants, and tampering with physical evidence. Appellant was sentenced to life imprisonment. He raises sixteen issues on appeal. This Court concludes that the trial court erred in not giving full consideration to Appellant's claim of juror misconduct, which is founded on a question of first impression alleging that jurors may have lied during voir dire and juror bias through the use of social media websites, namely Facebook. This case is therefore remanded to the Martin Circuit Court to hold a hearing on whether the jurors answered voir dire questions truthfully, and, if not, the extent of exposure the jurors had to the Facebook account of the victim's mother, and whether that exposure, if any, tainted the jurors to such extent that it was a miscarriage of justice to allow them to participate as jurors in Appellant's trial. Consideration of the remaining issues on appeal, except for the directed verdict question, is abated pending resolution of the juror issue.

I. Background

On June 24, 2010, in Martin County, Kentucky, Appellant Ross Brandon Sluss crashed his Ford F-150 pickup truck into an SUV carrying several passengers, one of whom was Destiny Brewer, who died as a result of her injuries. Three other passengers were injured.

At the scene of the crash, Appellant was administered two types of field sobriety tests, which he failed. He was not immediately arrested but was given a second test by a deputy familiar with Appellant's normal mannerisms. Upon failing this test, Appellant was arrested for driving under the influence. Appellant admitted that he had smoked marijuana earlier that day, and at that point, was given his Miranda warnings.

Appellant subsequently refused to consent to blood or urine tests, and a search warrant to withdraw blood and for a urinalysis was obtained. Appellant later consented to the blood test. But he was resistant to the urinalysis, and provided a small amount of urine. The blood screen indicated the presence of cannabinoid metabolites (marijuana) and a number of other medications, including oxycodone,1alprazolam,2hydrocodone, 3 and

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meprobamate .4 The urinalysis was not completed because there was insufficient urine in the sample. The toxicity report indicated that each of the substances indicated in the blood screen was at or under " therapeutic" levels.

On September 2, 2010, Appellant was indicted by the grand jury of Martin Circuit Court, charging him with murder, assault in the first degree, two counts of assault in the second degree, driving under the influence of intoxicants, tampering with physical evidence, and being a persistent felony offender in the second degree.

This case received much publicity in Martin County due to the age of Destiny Brewer, who was eleven years old, and the tragic circumstances surrounding her death. There were numerous articles in the local newspapers and reports on the television news programs. Members of the community also took to the internet to discuss the incident and the upcoming trial on websites such as Facebook and Topix. The trial court acknowledged the publicity surrounding the case and engaged in extensive voir dire procedures in order to ensure that Appellant received a fair trial, striking more than fifty potential jurors for cause.

Appellant was convicted of murder, assault in the first degree, two counts of assault in the fourth degree, operating a motor vehicle under the influence of alcohol or drugs, and tampering with physical evidence. The jury recommended a life sentence on the count of murder. The jury also recommended a twenty-year sentence on the count of assault in the first degree, a 12-month sentence on the two counts of assault in the fourth degree, a six-month sentence on the driving under the influence charge, and a five-year sentence on the tampering with physical evidence charge. Limited by Bedell v. Commonwealth, 870 S.W.2d 779, 783 (Ky.1994) (" [N]o sentence can be ordered to run consecutively with such a life sentence in any case ...." ), the trial court sentenced Appellant to life in prison. He now appeals to this Court as a matter of right. Ky. Const. § 110(2)(b).

II. Analysis

Appellant raises sixteen issues in his appeal. At this time, the Court need only address two of the Appellant's issues. The Court must resolve the directed verdict claim because it could effectively result in an acquittal and thus render moot many if not all of the other issues. Concluding that a directed verdict was not appropriate, this Court must then turn to the other issues. Given this Court's resolution of the claim regarding juror misconduct, however, only that additional issue needs to be addressed at this time.

A. Appellant was not entitled to a directed verdict.

Appellant claims that the trial court's denial of his motion for a directed verdict was reversible error. This Court chooses to address this issue first because it is potentially dispositive; if the trial court did commit reversible error, Appellant's convictions would be vacated and he would stand acquitted, at least of the highest level of offense. See, e.g., Paulley v. Commonwealth, 323 S.W.3d 715, 722 (Ky.2010) (addressing directed verdict claims even after reversing for other reasons because the claims were " potentially dispositive" ).

Appellant contends that the Commonwealth did not prove the necessary elements of wanton murder under KRS 507.020(b), which states:

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A person is guilty of murder when ... [i]ncluding, but not limited to, the operation of a motor vehicle under circumstances manifesting extreme indifference to human life, he wantonly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person.

Appellant's argument is that the Commonwealth could not prove that he operated his vehicle " under circumstances manifesting extreme indifference to human life," and therefore the highest crime for which he could be charged was manslaughter in the second degree under KRS 507.040.5 In Brown v. Commonwealth, 975 S.W.2d 922 (Ky.1998), the Court held that the " culpable mental state defined in KRS 507.020 as ‘ wantonness,’ ... without more, will suffice for a conviction of manslaughter in the second degree but not for murder because, to qualify as murder, ... it must be accompanied by further circumstances manifesting extreme indifference to human life." Id. at 923 (quoting McGinnis v. Commonwealth, 875 S.W.2d 518, 520 (Ky.1994)) (some quotation marks omitted).

This Court has made clear that intoxication, along with other factors, can suffice to prove the wanton murder element of " circumstances manifesting extreme indifference to human life." See Hamilton v. Commonwealth, 560 S.W.2d 539 (Ky.1977). In Hamilton, a truck driver was driving under the influence of alcohol, was speeding, and ran a stop light, colliding with a car being driven into an intersection. The Court determined that the facts were sufficient for the jury to find the defendant guilty of wanton murder and ruled as follows:

The facts in this case demonstrate that the accident was not the typical automobile accident where a driver makes a gross error of judgment and is tried for manslaughter or reckless homicide. Rather, Hamilton's conduct surpasses the usual vehicle manslaughter case and demonstrates " wanton" conduct and extreme indifference to human life. The jury was instructed on murder, second degree manslaughter and reckless homicide. It found that Hamilton should have known of the plain and obvious likelihood that death or great bodily injury could have resulted from operating his truck, while in a drunken condition, through an intersection where a red light demanded that he stop.

Id. at 543. Since Hamilton, multiple cases have acknowledged that a defendant may be convicted of wanton murder so long as there is sufficient evidence under which a jury may conclude that a defendant drove his vehicle under circumstances manifesting an extreme indifference to human life. See Cook v. Commonwealth, 129 S.W.3d 351, 362-63 (Ky.2004); Love v. Commonwealth, 55 S.W.3d 816, 827 (Ky.2001); Estep v. Commonwealth, 957 S.W.2d 191, 192 (Ky.1997).

While Appellant concedes that a wanton murder jury instruction is appropriate in some circumstances, he argues that the facts of this case do not demonstrate that he operated his vehicle under circumstances manifesting an extreme indifference to human life. Appellant's principal argument is that there was no proof that he was intoxicated at the time of the crash. He relies on testimony from his own expert that, because each of the substances indicated in Appellant's blood screen was at or below " therapeutic levels," he could

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not have been intoxicated at the time of the crash. Appellant does not, however, acknowledge that even therapeutic doses of certain prescription medications may sufficiently impair someone driving a vehicle. Most prescription medications warn against that precise conduct on the pill bottle. Moreover, evidence was presented during trial that Appellant's doctor had...

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