Estep v. Com.

• Decision Date: 04 September 1997
• Docket Number: No. 96-SC-0083-MR,96-SC-0083-MR
• Citation: 957 S.W.2d 191
• Parties: Tammy Sullivan ESTEP, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 191

957 S.W.2d 191

Tammy Sullivan ESTEP, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 96-SC-0083-MR.

Supreme Court of Kentucky.

Sept. 4, 1997.

Rehearing Denied Jan. 22, 1998.

C. Tom Anderson, Boehl, Stopher & Graves, Prestonsburg, Lawrence R. Webster, Pikeville, for Appellant.

A.B. Chandler, III, Attorney General, Michael Harned, Assistant Attorney General, Criminal Appellate Division, Frankfort, for Appellee.

WINTERSHEIMER, Justice.

This appeal is from a judgment based on a jury verdict which convicted Estep of wanton murder and first-degree assault. She was sentenced to 20 years for the wanton murder and ten years for the assault with the sentences to run concurrently.

The principal issue is whether there was sufficient evidence for the jury to find Estep guilty of wanton murder. Other questions presented are whether the trial court properly exercised its discretion in refusing a continuance; whether it was error to allow the videotaped deposition of a prosecution expert and whether there was reversible error in admitting a urinalysis report.

Estep was charged with wanton murder and assault as the result of a fatal automobile accident on a two-lane road in Pike County. Testimony at trial indicated that the blue pickup truck driven by Estep passed a witness who was driving about 50 miles per hour. The pickup truck crossed the double-lined no passing zone and did not return to the right side of the road after passing the witness. The pickup truck collided head-on with a car traveling in the opposite direction. Evidence was presented that Estep was found to have five different prescription drugs in her system, three of which were found to be within proper therapeutic levels and the other two were at levels less than therapeutic quantities. This appeal followed the judgment of conviction.

The principal issue is whether there was sufficient evidence for the jury to find Estep guilty of wanton murder. She argues that there was no evidence that she was aware of and consciously disregarded the risk that taking the various drugs would impair her ability to drive. She testified that no doctor had told her not to take these drugs in combination and that she did not know the effect of these drugs together.

Estep also testified that she was well aware of the debilitating effects of these drugs. She stated that she did not take Elavil if she was home alone because it produced too deep a sleep and she was afraid that someone might break into her house and that she would not be aware of it. She further testified that she would not take Dilantin if she was by herself.

At trial, a hospital nurse testified that Estep told the nurse that she was not on any sort of medication. However, the nurse discovered a handful of Soma and Xanax tablets in her pants pocket. The nurse testified that she had to rouse Estep in order to ask some questions and that Estep appeared sedated and that she kept falling asleep. Fifty-eight Xanax tablets were found in Estep's purse.

KRS 507.020(1)(b) permits a conviction for wanton murder for the operation of a motor vehicle under circumstances manifesting extreme indifference to human life. Johnson v. Commonwealth, Ky., 885 S.W.2d 951 (1994). The prosecution charged that conduct such as Estep's has been held to constitute wanton murder under such a statutory standard. Walden v. Commonwealth, Ky., 805 S.W.2d 102 (1991), held that a wanton murder conviction was proper because the conduct of the defendant amounted to more than a typical automobile accident by virtue of the extreme rate of speed and level of intoxication. See also Hamilton v. Commonwealth, Ky., 560 S.W.2d 539 (1978). Burnett v. Commonwealth, Ky., 284 S.W.2d 654 (1955), recognized that intoxication may be caused by either drugs or alcohol. In this case, there was no evidence of alcohol.

In Walden, this Court distinguished between the wanton state of mind applicable to wanton murder and the state of mind applicable to second-degree manslaughter. The difference between wanton murder and second-degree manslaughter, involuntary murder, continues to be, as the penal code originally intended, where there is evidence from which the jury could find circumstances manifesting extreme indifference to human life. Walden, supra, at 105. Depending on the situation, drunk driving may be such a circumstance. Id. Indicative of its view of what the law requires, this Court concluded that applying this rule to the circumstances of that case, that the extreme nature of the intoxication was sufficient evidence from which a jury could infer wantonness so extreme as to manifest extreme indifference to human life. Id.

The evidence in this case demonstrated that Estep was driving her truck at a high rate of speed in an improper manner under the influence of drugs. Blood tests revealed the existence of five different types of drugs in Estep's body: Xanax, Elavil, Soma, Valium and Hydrocodone. Expert testimony established that Soma and Xanax are types of sedatives which tend to slow down the nervous system. Elavil is used to treat depression. Valium is a muscle relaxant which causes sleepiness and drowsiness. Hydrocodone is a narcotic analgesic pain reliever in the same class of drugs as morphine and heroin.

There was sufficient evidence for the jury to determine that these substances impaired Estep's ability to operate an automobile. Dr. Hunsaker, a prosecution expert witness, testified and described the effects of each of the substances. He testified that he could state with reasonable medical probability that given the presence of these drugs at the levels they were found in Estep's system, that their effect would be to cause impairment in operating a motor vehicle.

Eyewitnesses testified that Estep was seen passing at a rate of speed greater than 50 miles per hour in a no-passing zone near a curve in the road. The testimony indicated that after she completed passing one automobile, she failed to return to the proper lane and collided with a car on the wrong side of the road. One of the passengers in the other vehicle testified that she noticed Estep was slumped over in her seat and that she raised her head only seconds before the fatal crash. There was evidence that when Estep was taken to the hospital for observation following the accident that she kept passing out and appeared "pretty zonked." There was sufficient evidence that Estep was operating a motor vehicle under circumstances manifesting extreme indifference to human life and she wantonly engaged in conduct which created a grave risk of death and caused the death of another person. KRS 507.020(1)(b). Her behavior was wanton as defined by KRS 501.020(3).

The jury was well within its authority to find Estep guilty of wanton murder. There was no basis for a directed verdict because the evidence was sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant was guilty. On a motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. The questions of credibility and weight of the evidence are jury matters. See Commonwealth v. Benham, Ky., 816 S.W.2d 186 (1991). A careful review of the evidence indicates that the trial judge correctly determined that a reasonable juror could fairly find beyond a reasonable doubt that Estep wantonly caused the death. Commonwealth v. Sawhill, Ky., 660 S.W.2d 3 (1983).

Next, we consider the claim by Estep that she was entitled to a continuance because the scientific "meat" of the prosecution's case was never provided to her prior to the testimony of Dr. Hunsaker. Estep was present at Dr. Hunsaker's deposition and heard him list the drugs found in her system and describe the effects of the various drugs. Counsel for Estep cross-examined Dr. Hunsaker concerning the effects of taking the drugs over a long period of time and the effects of taking the various drugs in combination. Estep cannot now claim that she was unaware of the scientific "meat" of the prosecution's case. Considering all the circumstances, we do not believe that the trial judge abused his discretion in refusing to grant a request for continuance. RCr 9.04; Dishman v. Commonwealth, Ky., 906...