Lawson V. Com., 2000-SC-0024-TG.
| Decision Date | 26 September 2002 |
| Docket Number | No. 2000-SC-0024-TG.,2000-SC-0024-TG. |
| Parties | Robert K. LAWSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Karen Maurer, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Counsel for Appellant.
A.B. Chandler, III, Attorney General, Matthew D. Nelson, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.
A Laurel County Circuit Court jury convicted Appellant of First-Degree Fleeing or Evading Police and Felony Receiving Stolen Property, found Appellant eligible for enhanced sentencing as a First-Degree Persistent Felony Offender (PFO), and recommended consecutive terms of twelve (12) years and six (6) months imprisonment for each offense. At final sentencing, the trial court sentenced Appellant to ten (10) years for each offense, and ordered the sentences to run consecutively for a total sentence of twenty (20) years imprisonment. Appellant thus appeals to this Court as a matter-of-right.1 After a review of the record, we affirm Appellant's convictions and PFO-enhanced ten (10) year sentences, but reverse the judgment to the extent that it orders those terms of imprisonment to run consecutively and remand the case to the trial court for a new sentencing hearing at which a jury will make a recommendation as to whether Appellant serves his ten (10) year sentences concurrently or consecutively, in whole or in part.
On February 14, 1999, Appellant was employed to detail cars at his step-uncle Jim Sharp's used car dealership. That night, a 1986 Pontiac Firebird was taken from the lot without Sharp's permission. Laurel County Deputy Sheriff Jerry Hollon was on routine patrol that evening when he observed a 1986 Pontiac Firebird speeding down the road. Deputy Hollon engaged his marked vehicle's siren and flashing lights in an attempt to alert the driver of the Firebird to pull the automobile over. Instead, the driver fled, speeding up, running traffic lights, and violating lane discipline. Deputy Hollon pursued the Firebird and other officers soon joined in the pursuit.
During the chase, the Firebird reached speeds of between one-hundred (100) and one-hundred and twenty-five (125) miles per hour. It traveled on Interstate 75 where it made a U-turn in the grass median and reversed direction. Hoping to force the driver of the vehicle to stop, the police set up a rolling roadblock. The driver, however, attempted to pass the roadblock in the emergency lane, lost control, and crashed into the guard rail. The car became airborne and landed in the median. The driver opened the car door and ran into the nearby woods.
Deputy Hollon testified that he saw the driver's profile twice — once during the U-turn and again when the driver exited the Firebird — and broadcasted a description of the driver over the police radio. Within forty-five (45) minutes, two (2) state police officers apprehended Appellant, who matched the description given by Deputy Hollon, at a nearby gas station.
Appellant was indicted for First-Degree Fleeing or Evading Police, Felony Receiving Stolen Property, and being a First-Degree Persistent Felony Offender. At trial, the Commonwealth relied upon the testimony of Deputy Hollon and the owner of the vehicle. Appellant's primary defense to the charge was that Deputy Hollon was mistaken in his identification. Appellant testified that, during the time that Deputy Hollon was chasing the Firebird, he was hitchhiking and was picked up by strangers who robbed him and left him beside the road when he refused to smoke marijuana with them. Appellant testified that he was attempting to call his girlfriend for a ride home when the police apprehended him at the gas station.
The jury found Appellant guilty of the indicted offenses, found Appellant eligible for enhanced sentencing as a First-Degree PFO, recommended enhanced sentences of twelve (12) years and six (6) months for each offense, and recommended that the two (2) sentences run consecutively for a total sentence of twenty-five (25) years. At final sentencing, the trial court reduced each sentence to ten (10) years and ordered the two (2) sentences to run consecutively for a total sentence of twenty (20) years. This appeal follows.
Appellant alleges that the trial court erred by failing to instruct the jury that it could return verdicts as to the lesser-included misdemeanor offenses of Second-Degree Fleeing or Evading Police and Unlawful Use of an Automobile. We analyze both allegations of error in accordance with the well-settled principles that:
(1) "it is the duty of the trial judge to prepare and give instructions on the whole law of the case ... [including] instructions applicable to every state of the case deducible or supported to any extent by the testimony";2 and (2) Although a defendant has "a right to have every issue of fact raised by the evidence and material to his defense submitted to the jury on proper instructions,"3 the trial court should instruct as to lesser-included offenses "`only if, considering the totality of the evidence, the jury might have a reasonable doubt as to the defendant's guilt of the greater offense, and yet believe beyond a reasonable doubt that he is guilty of the lesser offense.'"4 In the case sub judice, we find that the trial court properly denied Appellant's requested lesser-included offense instructions.
The Grand Jury's charge of First-Degree Fleeing or Evading Police read:
That on or about the 14th of February, 1999, in Laurel County, Kentucky, the above named defendant, acting alone or in concert with others, committed the offense of Fleeing or Evading a Police Officer in the First Degree by operating a motor vehicle on the public highways at high rates of speeds [sic] exceeding 100 mph and in the course of fleeing created a substantial risk of harm to another person, and all such acts committed while fleeing from or evading a police officer[.]
The indictment thus charged First-Degree Fleeing or Evading Police as defined in KRS 520.095(1)(a)(4):
A person is guilty of fleeing or evading police in the first degree:
(a) When, while operating a motor vehicle with intent to elude or flee, the person knowingly or wantonly disobeys a direction to stop his or her motor vehicle, given by a person recognized to be a police officer, and at least one (1) of the following conditions exists:
. . .
(4) By fleeing or eluding, the person is the cause, or creates substantial risk, of serious physical injury or death to any person or property[.]5
The trial court's instruction to the jury tracked the language of KRS 520.095(1)(a)(4):
You will find the Defendant guilty of First-Degree Fleeing or Evading Police under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That in this county on or about February 14, 1999, and within 12 months before the finding of the indictment herein, he operated a motor vehicle with the intent to flee or elude;
B. That he knowingly or wantonly disobeyed a direction to stop his motor vehicle, which direction was given by a person who he recognized to be a police officer;
C. That his act of fleeing or eluding caused or created a substantial risk of serious physical injury or death to any person or serious injury to property.6
Appellant alleges that the trial court erred when it failed to instruct the jury as to the lesser-included misdemeanor offense of Second-Degree Fleeing or Evading Police defined at KRS 520.100(1):
A person is guilty of fleeing or evading police in the second degree when, while operating a motor vehicle with intent to elude or flee, the person knowingly or wantonly disobeys a recognized direction to stop his vehicle, given by a person recognized to be a peace officer.7
Second-Degree Fleeing or Evading Police differs from the First-Degree felony offense in that "[t]he presence of one of the aggravating factors set forth in [KRS 520.095(a)(1)-(4) enhances the offense from a Class A misdemeanor to a Class D felony."8 As the only aggravating circumstance relevant to this case is the one set forth at KRS 520.095(1)(a)(4) — e.g., "by fleeing or eluding, the person is the cause, or creates substantial risk, of serious physical injury or death to any person or property" — we determine whether Appellant was entitled to a lesser-included offense instruction of Second-Degree Fleeing or Evading Police by examining whether a jury could have possessed reasonable doubts as to Paragraph (C) of the trial court's instruction but nonetheless believed the facts described in Paragraphs (A) and (B) beyond a reasonable doubt. Here, the Commonwealth introduced no evidence to permit a jury to conclude that the driver's actions actually caused serious physical injury or death to any person or serious injury to property,9 and the inquiry thus becomes whether a jury could have had reasonable doubts as to whether the fleeing driver's conduct created a substantial risk of such results.
Although we recognize that, in the vast majority of cases, the question of whether an actor's fleeing or evading created a substantial risk of such results is subject to reasonable disagreement, and, therefore, the misdemeanor offense will typically be a necessary lesser-included offense of First-Degree Fleeing or Evading Police,10 we find the evidence in this case overwhelming and conclude that no jury could reasonably have believed that Appellant fled or evaded police but did not create a substantial risk of death or serious physical injury to any person. The stolen Firebird was driven at speeds of up to 125 miles per hour — almost twice the legal speed limit even on an interstate...
To continue reading
Request your trial
-
Quarels v. Com.
...conduct, and a person's state of mind may be inferred from actions preceding and following the charged offense." Lawson v. Commonwealth, Ky., 85 S.W.3d 571, 579 (2002) (quoting Stopher v. Commonwealth, Ky., 57 S.W.3d 787, 802 (2001)). The same can be said of Appellant's claim that she did n......
-
State v. Riggs
...component of another sentence in a different case and concurrently to the paroled term of that other sentence); Lawson v. Commonwealth , 85 S.W.3d 571, 581-582 (Ky. 2002) (remanding for resentencing for jury to recommend whether defendant's two "convictions should be run consecutively or co......
-
Culver v. Commonwealth, 2017-SC-000568-DG
...as a "low-speed chase,"7 that the question was a close call but identified other fleeing or evading cases — Crain, 257 S.W.3d 924 ; Lawson, 85 S.W.3d 571 ; and McCleery, 410 S.W.3d 597 — as providing guidance to conclude, unlike the trial court, that the evidence was insufficient to prove W......
-
Triplett v. Commonwealth
...to recommend for each crime whether the penalty should run concurrently or consecutively. Triplett also cites Lawson v. Commonwealth, 85 S.W.3d 571, 581 (Ky. 2002), for the premise that the jury should have been instructed to recommend that the sentences run concurrently or consecutively, i......