Blades v. Com.

• Decision Date: 30 October 1997
• Docket Number: No. 95-SC-979-DG,95-SC-979-DG
• Citation: 957 S.W.2d 246
• Parties: Lesley D. BLADES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 246

957 S.W.2d 246

Lesley D. BLADES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 95-SC-979-DG.

Supreme Court of Kentucky.

Oct. 30, 1997.

Rehearing Denied Jan. 22, 1998.

Charles R. Orange, Russellville, for Appellant.

A.B. Chandler, III, Attorney General, Perry T. Ryan, Criminal Appellate, Division Office of Attorney General, Frankfort, George Gleitz, Assistant County Attorney, Bowling Green, for Appellee.

GRAVES, Justice.

This matter is before the Court on discretionary review from the Warren Circuit Court. Appellant, Lesley Blades, was convicted in the Warren District Court of operating a vehicle while under the influence of alcohol, second offense. He was fined $500 and sentenced to seven days in jail. The conviction was affirmed on appeal to the circuit court and the Court of Appeals denied review. Four issues are presented: whether Appellant was entitled to an alcohol intoxication instruction; whether the circuit court should have reversed the conviction due to the Commonwealth's failure to respond to the appeal; whether sufficient evidence was presented to support Appellant's conviction; and whether the trial court erred in failing to bifurcate the guilt phase and penalty phase of the trial.

On November 6, 1993, two Kentucky State Troopers responded to citizens' complaints that a male was staggering in the roadway and that a truck with its emergency flashers operating was parked in the roadway. The troopers observed Appellant walking down U.S. Highway 31 W in Warren County. Upon questioning, Appellant strongly smelled of alcohol and failed to pass several field sobriety tests. He was subsequently placed under arrest for public intoxication. The troopers came upon Appellant's truck approximately one mile down the road. The truck was in the center of the highway and its engine was still running. Appellant admitted he had driven the truck to its location. At the Warren County jail, Appellant submitted to a breathalyzer test which indicated his blood alcohol concentration was .234 percent. Because Appellant had previously been convicted of DUI within five years, he was charged with DUI second offense.

At trial, both troopers testified that Appellant admitted that the truck was his and he had, in fact, been driving. Appellant testified that he had driven the truck to Dueling Grounds race track in Simpson County earlier on the day of the arrest. However, he explained that at the end of the day he asked his stepdaughter to drive because he was intoxicated. His truck developed a problem while on the highway, and he had started walking in order to get assistance. Appellant testified that he did not tell the truth when he told the troopers he had been driving, in order to protect his stepdaughter who was married.

In addition to Appellant's testimony, a defense witness testified that he had helped a woman start a truck in the race track parking lot on the day in question because she was unfamiliar with diesels. The witness stated that Appellant was a passenger in the truck. The stepdaughter, as well, testified that she, and not Appellant, had driven the truck from the race track to Warren County.

At the close of trial, the jury found Appellant guilty of DUI second offense. On appeal, the Warren Circuit Court affirmed the judgment of the district court, by order entered on June 29, 1995. In October 1995, the Court of Appeals denied discretionary review. This Court subsequently granted discretionary review in May 1996. Additional facts are set forth as necessary in the course of this opinion.

Appellant's first allegation of error is the trial court's failure to instruct the jury on alcohol intoxication in a public place. Appellant contends that the fact he was arrested while walking down the highway entitled him to such an instruction. However, it is apparent from the record, and Appellant conceded as much during oral argument, that an instruction was never requested.

"It is fundamental that in a criminal case it is the duty of the court 'by the instructions to give to the accused the opportunity for the jury to determine the merits of any lawful defense which he has.' " Sanborn v. Commonwealth, Ky., 754 S.W.2d 534 (1988) (Quoting Curtis v. Commonwealth, 169 Ky. 727, 184 S.W. 1105, 1107 (1916)). However, this Court has consistently held that pursuant to RCr 9.54(2), a party cannot assign error to instructions unless that party "makes a specific objection to the giving or failure to give an instruction before the court instructs the jury, stating specifically the matter to which he objects and the ground or grounds of his objection." Chumbler v. Commonwealth, Ky., 905 S.W.2d 488, 499 (1995); see also Perdue v. Commonwealth, Ky., 916 S.W.2d 148, 160 (1996) and Davis v. Commonwealth, Ky., 795 S.W.2d 942, 952 (1990). The record is void of any indication that Appellant ever requested an alcohol intoxication instruction. Thus, this issue is unpreserved and does not warrant consideration upon review.

Appellant next argues that he was entitled to essentially a reversal by default in the circuit court because the Commonwealth failed to file a brief or response to his appeal. Appellant relies primarily on CR 76.12(8)(c) which provides:

If the appellee's brief has not been filed within the time allowed, the court may: (i) accept the appellant's statement of the facts and issues as correct; (ii) reverse the judgment if appellant's brief reasonably appears to sustain such action; or (iii) regard the appellee's failure as a confession of error and reverse the judgment without considering the merits of the case. (emphasis added)

Rule 76 clearly states that it only applies to practice and procedure in the Court of Appeals and Supreme Court. CR 76.01. Appeals to the circuit court are instead governed by CR 72. Nonetheless, the language of CR 76.12(8)(c), authorizes discretionary, not automatic, relief. We are not aware of any rule requiring an automatic reversal in cases where an appellee fails to file an appellate brief. Appellant's argument is without merit.

Appellant further takes issue with the trial court's failure to grant his motion for a directed verdict. He contends that the Commonwealth produced no evidence to prove that he drove his vehicle, other than his confession to the troopers when he was first arrested.

Appellant relies on the rationale set forth in Pence v. Commonwealth, Ky.App., 825 S.W.2d 282 (1991), in which the Court of Appeals reversed the defendant's conviction on the grounds that there was no evidence to prove that he had been operating, while intoxicated, the vehicle in which he was found. The defendant in Pence was found sitting behind the wheel of his vehicle parked at a truck stop. In response to a question by the police officer, the defendant admitted that he had been operating the vehicle. A breathalyzer test revealed a blood alcohol content of .26 percent. The defendant was subsequently convicted in the circuit court for operating a vehicle while under the influence of alcohol, KRS 189A.010.

On appeal, the Court of Appeals determined that nothing in the evidence presented permitted a reasonable inference as to how long the defendant had been at the truck stop or that it was more likely that the defendant drove to the truck stop while intoxicated than he became intoxicated after arriving. "[T]here is no evidence to indicate whether such misconduct consisted only of drunkenness in public or operating a motor vehicle while drunk." Id. at 283.

Viewing the evidence in the light most favorable to the prosecution, there is still an absence of proof that the appellant operated his vehicle while intoxicated. At best the evidence makes the existence of these elements of the offense slightly more probable than they would be without such evidence, but that is not enough. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Pence, supra at 284.

The facts in this case differ from Pence in that the time of arrest was more proximate to the time of the offense. The record reveals that no alcohol containers were found in Appellant's vehicle. Further, there were no liquor stores located on the approximately one mile stretch of road that Appellant walked. It is, nonetheless, quite improbable that Appellant could have become intoxicated in the short period of time it took him to leave his truck and travel to the location where he was subsequently arrested. This leads to a reasonable conclusion that Appellant became intoxicated prior to operating his vehicle.

Moreover, we are of the opinion that Pence is flawed because it erroneously requires a greater degree of certainty in DUI cases than is required in other areas of the law. It is well-settled that a jury may make reasonable inferences from the evidence. Commonwealth v. DeHaven, Ky., 929 S.W.2d 187 (1996); Carpenter v. Commonwealth, Ky., 771 S.W.2d 822 (1989); Barker v. Commonwealth, 304 Ky. 13, 199 S.W.2d 713 (1947), Mattingly v. Commonwealth, 240 Ky. 625, 42 S.W.2d 874 (1931). We fail to logically perceive a rational differentiation between the inferences that may be drawn in DUI cases of this nature and other crimes. Clearly, if inferences from circumstantial evidence are sufficient to convict in felony crimes, Commonwealth v. Preece, Ky., 844 S.W.2d 385, 388 (1992), a fortiori circumstantial evidence and reasonable inferences...