Com. v. Self

• Decision Date: 03 August 1990
• Docket Number: No. 89-CA-1041-MR,89-CA-1041-MR
• Citation: 802 S.W.2d 940
• Parties: COMMONWEALTH of Kentucky, Appellant, v. John Alan SELF, Appellee.
• Court: Kentucky Court of Appeals

Page 940

802 S.W.2d 940

COMMONWEALTH of Kentucky, Appellant, v. John Alan SELF, Appellee.

No. 89-CA-1041-MR.

Court of Appeals of Kentucky.

Aug. 3, 1990.

Rehearing Denied Oct. 19, 1990.

Discretionary Review Denied

by Supreme Court March 6, 1991.

Frederic J. Cowan, Atty. Gen., Carol C. Ullerich, Asst. Atty. Gen., Frankfort, for appellant.

Rebecca E. Murrell, Louisville, for appellee.

Before HOWERTON, C.J., and HOWARD and McDONALD, JJ.

HOWARD, Judge.

The Commonwealth appeals from a judgment of the Bullitt Circuit Court dismissing the indictment of the appellee charging him with wanton endangerment in the first degree and unlawful transaction with a minor. The facts of this case come mostly from police and medical reports.

Vincent Jackson, Erica Leitzell, and Tracy Heady were riding in a vehicle driven by the appellee, John Alan Self, in the early morning of March 30, 1986, when they stopped at a party in Hardin County. Tracy and Erica were both fourteen years of age. The four brought out some whiskey and beer from the trunk of the vehicle. All four were drinking. Self appeared intoxicated and was smoking marijuana. The four left the party about 1:30 a.m. and Self was driving.

The group then went to Louisville to find a friend of one of the girls. The search was unsuccessful and they left Louisville. Somewhere near Shepherdsville, Jackson, who was riding in the back with Tracy and who had been asleep, woke up and noticed Erica was driving. Self and Tracy were asleep. Jackson also noticed that the speedometer read 75 m.p.h. Jackson then went back to sleep. Self stated that Erica wanted to drive, he thought she had license, and so he slid over to the passenger side.

Near Lebanon Junction, Jackson awoke again as he was thrown out the rear window of the vehicle. The vehicle rolled and when it stopped, Self climbed out of the passenger window. Jackson and Self received only minor injuries. Erica was thrown from the vehicle and killed. Tracy's body was trapped underneath the vehicle and burned when the vehicle caught fire.

There were several persons at the accident scene when the police arrived. None of them had seen who was driving, but all reported that Self and Jackson had gotten liquor bottles from the vehicle and thrown them over the hill. A police officer retrieved at the scene a 1/3-full bottle of whiskey, a pipe, a black film container with an unknown substance inside, and a package of cigarette-rolling papers.

Autopsies were performed on the two girls and their deaths were attributed to injuries received in the accident. Erica's blood alcohol level was .10% and Tracy's was .03%. Self's blood alcohol level was .09%.

On March 6, 1987, Self was indicted on a count of first-degree wanton endangerment for allowing a minor to drive after having provided her with alcohol. Self was also indicted on one count of unlawful transaction with a minor.

On May 2, 1989, a trial was to be held and the jury was sworn. Self offered several pretrial motions, including a motion to dismiss. The trial court was of the opinion that a wanton endangerment charge is not appropriate when death results from the accused's conduct. Rather, when death occurs, the trial court reasoned, the proper charge should be some degree of criminal homicide. The trial court also stated if any alcohol was provided to the minor, that transaction occurred in Hardin County, not Bullitt County, and thus, venue was improper.

The Commonwealth contends that it has the discretion to bring whatever charges against a defendant it feels are justified by the evidence.

A person commits wanton endangerment in the first degree, as defined in KRS 508.060(1), when "under circumstances manifesting extreme indifference to the value of human life, he wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person."

The trial court based its decision largely on the following commentary to KRS 508.060:

The offenses created by KRS 508.060 and 508.070 can best be described by use of this hypothetical situation: D, with no intent to kill or injure but with an awareness of the risk involved, shoots a gun into an occupied building, thereby consciously disregarding the risk of death or injury to its occupants. If someone is killed as a consequence of this act, D has committed murder if the triers of fact determine that the circumstances under which he acted manifest extreme indifference to human life (KRS 507.020) or manslaughter in the second degree if the triers find someone is seriously injured as a consequence of this act, D has committed assault in the first degree if the circumstances under which he acted manifest an extreme indifference to human life (KRS 508.010) or assault in the second degree if they manifest no such indifference (KRS 508.020). If D's act causes neither of these consequences, he has committed the offense of wanton endangerment under KRS 508.060 or 508.070.

In Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668, 54 L.Ed.2d 604, 611 (1978), the Supreme Court stated that "[i]n our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his...