Bowling v. Commonwealth
| Decision Date | 16 August 2018 |
| Docket Number | 2016-SC-000548-MR |
| Citation | 553 S.W.3d 231 |
| Parties | Rodney BOWLING, Appellant v. COMMONWEALTH of Kentucky, Appellee |
| Court | United States State Supreme Court — District of Kentucky |
COUNSEL FOR APPELLANT: Brandon Neil Jewell, Assistant Public Advocate.
COUNSEL FOR APPELLEE: Andy Beshear, Attorney General of Kentucky, William Robert Long Jr., Frankfort, Assistant Attorney General.
A Clay Circuit Court jury convicted Appellant, Rodney Bowling, of murder, driving under the influence, and two counts of first-degree assault. The jury recommended sentences of thirty years' imprisonment for murder; thirty days' confinement and a $500 fine for driving under the influence; and ten years' imprisonment for each of the two counts of assault. The jury recommended that the sentences run concurrently. Consistent with the jury’s sentencing recommendations, the trial court fixed Bowling’s sentence at thirty years' imprisonment and a $500 fine. Bowling now appeals to this Court as a matter of right. Ky. Const. § 110 (2)(b).
Bowling asserts six claims of error in his appeal: (1) the trial court erred in denying his motion for a directed verdict as to murder, as he alleges the Commonwealth failed to prove aggravated wantonness; (2) the trial court erred in allowing expert testimony exceeding the scope of the Commonwealth’s RCr 7.24(1)(c) disclosure; (3) the trial court erred in the admission of laboratory reports in contravention of his right to confront witnesses against him; (4) the Commonwealth committed prosecutorial misconduct through statements made during its closing argument; (5) the trial court erred in convicting him of both murder and driving under the influence in violation of his right to be free from double jeopardy; and (6) the trial court erred in imposing a fine against him for driving under the influence after determining that he was indigent. For the following reasons, we affirm Bowling’s convictions and their corresponding sentences.
Bowling was driving in Clay County when his Ford Explorer crossed the center line and struck a Ford Ranger operated by Ronnie Mitchell. Mitchell’s girlfriend, Melissa Smith, and their daughter were in the truck with Mitchell. Mitchell died as a result of the injuries he sustained in the collision, and Smith and the couple’s daughter were both seriously injured. Bowling was taken to the hospital, where a blood test was collected, revealing that Bowling was under the influence of Xanax
at the time of the collision. A few hours after the wreck, Bowling was released from the hospital and consented to a police interview.
Based on the collision, Bowling was indicted by a Clay County Grand Jury of murder, driving under the influence, and two counts of assault. He was convicted of all charges by a Clay Circuit Court jury. Further facts will be developed as necessary in analyzing Bowling’s allegations of error.
Bowling argues the trial court erred in failing to direct a verdict on his murder charge. Specifically, Bowling argues the prosecution failed to prove aggravated wantonness. This Court succinctly stated the rule trial courts must follow when faced with motions for directed verdict in Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991) :
On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.
Furthermore, "[o]n appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal." Id.
KRS 507.020(1)(b) states "a person is guilty of murder when ... [while operating] 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." With this statute in mind, the jury instructions in Bowling’s case required the jury to find beyond a reasonable doubt that Bowling: (1) caused the collision resulting in Mitchell’s death and (2) that in causing said collision, he wantonly engaged in conduct creating a grave risk of Mitchell’s death under circumstances which manifested an extreme indifference to human life.
Melissa Smith testified at trial. She was riding in the truck with Mitchell along with the couple’s daughter at the time of the accident which claimed Mitchell’s life. She testified that Mitchell had been forced to swerve into the center of the road moments before the accident, as Bowling’s vehicle had entered their lane of travel, heading toward them in the wrong direction. She stated Mitchell reduced the speed of his truck and re-entered his lane once Bowling returned to his lane. She testified that Mitchell had slowed his truck to a near stop and pulled onto the shoulder of the road on his side when Bowling again crossed the center line and hit Mitchell’s vehicle head-on. Smith stated that she and her daughter were both seriously injured as a result of the accident and that Mitchell was killed.
A Kentucky State Police accident re-constructionist also testified concerning the accident. He testified that, in his expert opinion, Bowling’s vehicle struck Mitchell’s as Mitchell exited the highway onto the shoulder on Mitchell’s side of the road. Bowling’s expert accident re-constructionist also agreed that Bowling’s vehicle struck Mitchell on Mitchell’s side of the road (although he opined the cause of the accident was Mitchell entering Bowling’s lane).
Kentucky State Police trooper Baxter testified that Bowling was impaired at the scene—having slurred speech, drooping eyes, excessive slobbering, and a white crust around his mouth. Baxter stated he did not perform any field sobriety tests because medical personnel were examining Bowling and were transporting him to the hospital. Baxter did, however, arrange for hospital staff to take a blood sample from Bowling at the hospital. When Bowling was being discharged from the hospital, Baxter arrested him, as he believed Bowling was impaired. After his arrest, Bowling voluntarily gave an interview, which Baxter recorded. The recording was played for the jury during Baxter’s testimony at trial.
The Commonwealth asserts that Bowling admitted during his interview with Baxter to taking several prescription medications on the morning of the collision "including Oxycodone
, Neurontin, Xanax, high blood pressure pills, etc." Bowling’s counsel argues in his reply brief that he "believes [Bowling] only says that he normally takes those prescriptions in a day and not that he had actually taken all of them that day." However, after listening to the interview, this Court notes that Bowling admitted to having taken at least Xanax and Oxycodone on the day of the incident. In the interview these were the first two drugs Bowling listed as his "regular medications." When Baxter inquired whether Bowling had taken these medications on the day of the collision, Bowling responded affirmatively. Baxter did not ask Bowling whether he had taken any of the other medications he named in the interview on the day of the fatal accident. Later in the interview, Baxter noted Bowling’s slurred speech (which this Court also observed in listening to the recording), the fact that Bowling was nodding off, and that Bowling had foam coming from his mouth. Bowling responded that Xanax makes him fall asleep.
The Commonwealth also presented the testimony of Courtney Carver, a forensic chemist who works at the Kentucky State Police’s central laboratory. She testified her examination of Bowling’s blood sample revealed the presence of 133 nanograms per milliliter (ng/ml) of Xanax
. She further testified that the initial screening of Bowling’s blood revealed the potential presence of opiates and other drugs, but that there was not enough blood in the sample to confirm these initial results.
Dr. Smock, the Commonwealth’s forensic toxicology expert, testified that the therapeutic level of Xanax
was between 10-40 mg/ml and that no doctor would prescribe Xanax in a dosage that would result in the level present in Bowling’s blood. Furthermore, he testified Bowling’s level of Xanax constituted an overdose and explained that the slurred speech, drowsiness, and drooling described by Baxter and demonstrated in the taped interview were consistent with a Xanax overdose. Dr. Smock testified that, in his expert opinion, Bowling was impaired due to the ingestion of Xanax and other substances on the night of the collision. He further opined that nothing else in Bowling’s hospital records could have led to his impairment.
Bowling presented the testimony of the emergency room doctor, Dr. Vorkdor, who stated Bowling was able to communicate, was coherent, spoke properly, and was alert and conscious at the hospital following the accident. Dr. Vorkdor testified that a urinalysis was done and that it did not show the presence of alcohol or drugs.
While some of the evidence Bowling presented was at odds with the Commonwealth’s, this does not mean the trial court’s denial of Bowling’s directed verdict motion was in error. Rather the trial court was tasked with looking at all evidence in a light most favorable to the Commonwealth. In reaching our holding, we note that Commonwealth v. Sawhill, 660...
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