Brown v. Com.

• Citation: 174 S.W.3d 421
• Decision Date: 16 June 2005
• Docket Number: No. 2003-SC-0235-MR.,No. 2003-SC-0716-TG.,2003-SC-0235-MR.,2003-SC-0716-TG.
• Parties: Demond T. BROWN, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee. Demond Brown, Appellant, v. Commonwealth of Kentucky, Appellee.
• Court: United States State Supreme Court (Kentucky)

Page 421

174 S.W.3d 421

Demond T. BROWN, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.

Demond Brown, Appellant, v. Commonwealth of Kentucky, Appellee.

No. 2003-SC-0235-MR.

No. 2003-SC-0716-TG.

Supreme Court of Kentucky.

June 16, 2005.

As Modified July 7, 2005.

Rehearing Denied November 23, 2005.

COPYRIGHT MATERIAL OMITTED

Lisa Bridges Clare, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.

Gregory D. Stumbo, Attorney General, Frankfort, KY,

Todd D. Ferguson, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, KY, Counsel for Appellee.

COOPER, Justice.

On the night of January 15, 2002, in Hopkinsville, Kentucky, Appellant, Demond T. Brown, drove his Ford Crown Victoria automobile into an intersection against a red light and collided with another automobile operated by Debra Conklin and also occupied by Conklin's teenage daughter, Megan. Timothy Brown and Laticia Leavell, passengers in Appellant's vehicle, were injured as a result of the collision; Debra and Megan Conklin were killed. Appellant was subsequently convicted by a Christian Circuit Court jury of two counts of wanton murder, KRS 507.020(1)(b), and two counts of wanton endangerment in the first degree, KRS 508.060. He received sentences of twenty years imprisonment for each murder conviction and one year imprisonment for each wanton endangerment conviction, all to run concurrently for a total of twenty years. He appeals to this Court as a matter of right, Ky. Const. § 110(2)(b), asserting three claims of reversible error, viz: (1) denial of his motion for a directed verdict of acquittal on the wanton murder charges; (2) failure to grant him a new trial due to alleged juror misconduct; and (3) improper redirect examination and closing argument by the prosecutor. Finding no error, we affirm the judgment of the trial court.

I. SUFFICIENCY OF THE EVIDENCE.

On a motion for a directed verdict of acquittal, all fair and reasonable inferences are drawn in the Commonwealth's favor. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991). On appellate review, we determine whether, under the evidence viewed as a whole, it would be clearly unreasonable for a jury to find the defendant guilty. Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky.1983). There was undisputed testimony establishing that, on the night in question, Appellant and his brother picked up Leavell from the Meritor factory when her work shift ended at approximately 10:00 p.m. Appellant had two television monitors mounted in his automobile, one on the automatic transmission gearshift, and the other in the passenger-side dashboard. Appellant left the Meritor factory, turned onto Pembroke Road, and traveled toward the point where Pembroke Road intersected with the Martin Luther King, Jr. Bypass, where the fatal crash took place. There was evidence from which the jury could infer that Appellant was driving at a rate of speed between five and fifteen miles per hour over the fifty-five miles per hour speed limit.

Michael Kaylor was also employed at the Meritor factory. He left the factory at the same time as Appellant, but in a separate vehicle. There was evidence at trial that Kaylor and Appellant briefly traveled side-by-side at a high rate of speed. The record also shows that Kaylor changed lanes upon approaching a Monte Carlo automobile from the rear, and continued traveling at a high rate of speed approximately one car-length behind Appellant's vehicle. Kaylor testified that he slowed his vehicle to turn off of Pembroke Road onto the Bypass immediately before the crash took place.

Adrian Thomas, the driver of the Monte Carlo, testified that the two cars passed by him "like [he] was sitting still." Kelvin Quick, Thomas's passenger, observed that one of the television monitors in Appellant's vehicle was in operation as the vehicle approached the intersection. Although Leavell and Timothy Brown both testified that the monitor was off when the collision occurred, they did not agree as to when it had been turned off. Based on Quick's testimony, the jury was entitled to infer that the monitor was on.

As Appellant approached the intersection, he saw that the traffic light in his direction was red. Nevertheless, he did not slacken his speed, believing that he could "time" the red light, i.e., that the light would change in his favor before he entered the intersection. Appellant admitted and it is undisputed that the light was still red when he entered the intersection and that he never applied his brakes. Jennifer Kaeferle, who was waiting with her husband at the red light on the opposite side of the intersection, testified that her husband observed Appellant's vehicle and Conklin's vehicle approaching the intersection at the same time and remarked that a collision was about to occur. Kaylor, who was preparing to turn right somewhere behind Appellant's vehicle, also testified that he saw the vehicles approaching each other and knew that a collision was imminent. There was no evidence adduced at trial indicating that either Appellant or his passengers ever saw the Conklin vehicle. The inference that Appellant did not see the impending collision was reinforced by the fact that his vehicle left no skid marks on the road prior to the point of impact.

Although Kaylor saw the accident occur, he immediately left the scene, drove home, changed vehicles, and then drove back to the scene of the accident. Kaylor testified that he never spoke to any officer at the scene. Based on the events of the night, Kaylor was charged with one count of wanton endangerment, and he entered an Alford plea¹ on the morning of Appellant's trial. The Commonwealth called Kaylor to testify during its case-in-chief and, during redirect examination, the prosecutor elicited testimony about the plea. On recross examination, Appellant's counsel asked Kaylor what he had done wrong. Kaylor responded, "As far as I was concerned, I didn't do anything wrong, but it got started somehow that I was racing, when I in fact wasn't."

"A person is guilty of murder when: ... (b) Including, 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." KRS 507.020 (emphasis added). KRS 501.020(3) defines "wantonly," as follows:

A person acts wantonly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such a nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.

(Emphasis added.)

Of course, to be convicted of wanton murder under KRS 507.020(1)(b), Appellant must have had a more egregious mental state than mere wantonness.

As explained in the Commentary accompanying the Penal Code... the culpable mental state defined in KRS 501.020 as wantonness... without more, will suffice for a conviction of manslaughter in the second degree but not for murder because, to qualify as murder, a capital offense, it must be accompanied by further circumstances manifesting extreme indifference to human life.

McGinnis v. Commonwealth, 875 S.W.2d 518, 520 (Ky.1994) (internal citations and quotations omitted), overruled on other grounds by Elliott v. Commonwealth, 976 S.W.2d 416, 422 (Ky.1998). It is the element of "extreme indifference to human life" that elevates wanton homicide to the same level of culpability as intentional homicide.

"There is a kind of [wanton] homicide that cannot fairly be distinguished ... from homicides committed [intentionally]. [Wantonness] ... presupposes an awareness of the creation of substantial homicidal risk, a risk too great to be deemed justifiable by any valid purpose that the actor's conduct serves. Since risk, however, is a matter of degree and the motives for risk creation may be infinite in variation, some formula is needed to identify the case where [wantonness] should be assimilated to [intention]. The conception that the draft employs is that of extreme indifference to the value of human life. The significance of [intention] is that ... it demonstrates precisely such indifference. Whether [wantonness] is so extreme that it demonstrates similar indifference is not a question that, in our view, can be further clarified; it must be left directly to the trier of facts."

KRS 507.020 (1974 cmt.) (quoting Model Penal Code § 201.2 cmt. 2 (Tentative Draft No. 9, 1959)) (emphasis added). See also Nichols v. Commonwealth, 657 S.W.2d 932, 935 (Ky.1983).

We have held that there was sufficient evidence to support a finding of this mental state, sometimes referred to as "aggravated wantonness," Graves v. Commonwealth, 17 S.W.3d 858, 863 (Ky.2000), in a number of cases involving unintentional vehicular homicides. In Hamilton v. Commonwealth, 560 S.W.2d 539 (Ky.1977), we held that the evidence was sufficient where the defendant, while under the influence of alcohol, drove his vehicle at a rate exceeding the speed limit and entered an intersection against a red light. Id. at 543. In Walden v. Commonwealth, 805 S.W.2d 102 (Ky.1991), overruled on other grounds by Commonwealth v. Burge, 947 S.W.2d 805, 811 (Ky.1996), we upheld a wanton murder conviction where the defendant lost control of his vehicle and crossed the center line while operating his vehicle while under the influence of alcohol and at a high rate of speed. Id. at 105. In Estep v. Commonwealth, 957 S.W.2d 191 (Ky.1997), we held that the evidence was sufficient where the defendant operated a motor vehicle at a high rate of speed after ingesting five different prescription drugs, one of which had...