Osborne v. Com.

• Decision Date: 19 November 1993
• Docket Number: No. 92-CA-1631-MR,92-CA-1631-MR
• Parties: Charles OSBORNE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Kentucky Court of Appeals

Page 484

867 S.W.2d 484

Charles OSBORNE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 92-CA-1631-MR.

Court of Appeals of Kentucky.

Nov. 19, 1993.

Motion to Depublish Opinion Denied Dec. 27, 1993.

Susan J. Balliet, Louisville, for appellant.

Chris Gorman, Com. Atty., Sharon Kay Hilborn, Asst. Atty. Gen., Criminal Appellate Div., Frankfort, for appellee.

Before LESTER, C.J. and HUDDLESTON and McDONALD, JJ.

OPINION

McDONALD, Judge.

A fatal car accident occurred on May 6, 1991, on U.S. 119 in Letcher County, Kentucky. The vehicle, traveling at a high rate of speed, skidded out of control, violently struck a utility pole on the passenger side, severed the pole and crashed into the Cumberland River. Freddie Thompson received multiple injuries as a result of the accident and was pronounced dead at the scene. Charles Osborne, the appellant, was indicted on June 27, 1991. The indictment charged Osborne with second-degree manslaughter, driving under the influence (DUI), operating a motor vehicle without liability insurance and operating a vehicle without proper registration plates. Following a jury trial, Osborne was found guilty on each charge. Osborne was sentenced to serve eight (8) years in prison on the manslaughter conviction and he received a six (6)-month sentence on the DUI charge. The sentences were ordered to be served concurrently. Osborne was also fined a total of $1,350.

Having reviewed the record we are persuaded to vacate the judgment and grant Osborne a new trial. Because the case is subject to a new trial, we are put to the task of fully discussing all of the issues on appeal.

Osborne's first argument on appeal contends that he was entitled to a directed verdict on the manslaughter charge as he claims the Commonwealth failed to produce sufficient evidence that he was operating the vehicle at the time of the crash that took the life of his friend, Freddie Thompson. There is no merit to this claim. Ample evidence was presented from which a reasonable jury could believe beyond a reasonable doubt that Osborne was operating the vehicle at the time of the crash. The motion for directed verdict was properly denied. Commonwealth v. Benham, Ky., 816 S.W.2d 186 (1991); Commonwealth v. Sawhill, Ky., 660 S.W.2d 3 (1983); and Trowel v. Commonwealth, Ky., 550 S.W.2d 530 (1977).

The Commonwealth presented evidence from an accident reconstructionist (Detective Hogg with the Kentucky State Police) who testified there was no doubt in his mind that Osborne was driving the vehicle. Hogg testified that, due to the nature of the accident, the bodies would slide forward and to the right, and that the driver would not have ended up on the right-hand side of the vehicle. Several witnesses testified that they observed the scene of the accident and witnessed the victim, Thompson, lying in the passenger seat. Thompson's legs were both broken and pinned between the passenger doorway and the bedrock of the river. The coroner (Dr. Meade) testified that the right side of Thompson's body absorbed the impact of the wreck and the right side of his head had "turned to jelly." Additionally, there was testimony that Osborne had been wearing a pair of thong-type flip-flops on the day in question. The flip-flops were found on the floor board of the driver's side of the vehicle. Hogg testified that due to the design of the vehicle, which had a console down the center, the driver's shoes would have stayed on the driver's side because the vehicle did not flip over. Admittedly, Osborne offered testimony in an attempt to dispute the Commonwealth's evidence that he was the driver of the car. However, under the evidence presented as a whole, the trial court properly determined that it would not be unreasonable for a jury to find guilt beyond a reasonable doubt on this issue. This is especially true considering the standard requires the trial court to draw all fair and reasonable inferences from the evidence in favor of the Commonwealth when ruling on a motion for directed verdict. See Benham, supra.

The second ground on appeal claims reversible error on the part of the trial court in its failure to exclude testimony and evidence regarding Osborne's prior DUI conviction. For the following reasons we believe the introduction and use of the evidence did in fact constitute reversible error in this instance.

Subsequent to the events that occurred in Letcher County on May 5 and May 6, 1991, Osborne drove again under the influence of alcohol. This DUI offense occurred in November, 1991. Osborne pled guilty to the subsequent offense on November 20, 1991.

Immediately prior to the commencement of trial, the Commonwealth made a motion to introduce evidence of Osborne's November 20, 1991 DUI conviction in order to prove that the DUI charged in the present case was a second offense in light of the "prior" conviction. The motion was premised on the DUI enhancement statute. ¹

Responding to this motion, Osborne's counsel replied:

Well, I wish to respond but, unfortunately, I'm in quite a predicament in this. No. 1, my argument as to its relevance in this prosecution, as it would be more effectively used as rebuttal evidence, if at all relevant to the prosecution, because, generally speaking, this type of evidence could only be used and only be offered by the Commonwealth to show some sort of a habit or routine that he was engaged in. However, the fact that the DUI enhancement statutes puts me in a situation where I can't argue that.

....

And I'm ethically bound to the court, as well as to my client, to present the law as I know it best, and I think that's where I'm going to have to be for my position.

Ultimately, the court decided that the evidence of the prior conviction was admissible stating:

Due to the fact of the enhancement statute, it has to be introduced because the DUI statute is an enhancement statute, which carries additional penalties on the second and third offense, and since ... even though the occurrence occurred after the date of this alleged violation, in fact, his conviction date, however, has occurred on the second one and, therefore, it will be permitted to be introduced.

We are immediately confronted with the authority found in Asher v. Commonwealth, Ky.App., 763 S.W.2d 153 (1988); Ratliff v Commonwealth, Ky.App., 719 S.W.2d 445 (1986); and Royalty v. Commonwealth, Ky.App., 749 S.W.2d 700 (1988). Those cases, which dealt only with DUI offenses, clearly authorized the introduction of prior convictions during the course of a DUI trial to prove the DUI on trial was a subsequent offense. Royalty, supra, held that for purposes of demonstrating a "prior" conviction, the date of the conviction, not the date of the offense itself, governed. However, the DUI charge and the evidence offered in support of a conviction thereon during the present case is disturbing for several reasons.

First, it is clearly garnered from the indictment and the bill of particulars that the course of conduct for which Osborne was being charged with DUI arose out of the same event and conduct for which he was indicted for manslaughter in the second degree. His wantonness was substantially based on his drunkenness. See Walden v. Commonwealth, Ky., 805 S.W.2d 102 (1991), and Hall v. Commonwealth, Ky.App., 819 S.W.2d 39 (1991). It is true that pretrial investigation together with the evidence adduced at the trial itself may ultimately have negated a double jeopardy claim. ² The fact remains, however, that the indictment and the bill of particulars never charged or set forth with any degree of certainty the specifics of the conduct comprising the offense of DUI that purportedly occurred separately from the DUI which constituted the "wanton" operation of the vehicle that resulted in the death of Thompson and the manslaughter charge that followed.

The indictment charged:

The Grand Jury charges: That on or about the 6th day of May, 1991, in Letcher County, Kentucky, the above-named defendant(s): [Charles Osborne]

COUNT ONE

Committed the offense of Second Degree Manslaughter, K.R.S. 507.040 by Wantonly causing the death of Freddie Thompson through the operation of an automobile.

COUNT TWO

Committed the offense of Operating an automobile while under the influence of alcohol in violation of K.R.S. 189A.010.

COUNT THREE

Committed the offense of operating a motor vehicle without liability insurance in effect in violation of K.R.S. 304.39-080.

COUNT FOUR

Committed the offense of operating a motor vehicle without proper registration plates in violation of K.R.S. 186.170.

The bill of particulars stated:

Comes the Commonwealth and provides the following bill of particulars to the defendant:

1. The exact location of the commission of the alleged crimes.

U.S. Highway 119 or near Partridge, Letcher County, Kentucky.

2. The exact time and date of the commission of the alleged crime.

Approximately 1:00 a.m. on May 6th, 1991.

3. The alleged participation of the defendant in the alleged crime as well as the circumstances evincing the defendant's intention to commit the crime as charged in the indictment. The defendant intentionally operated a motor vehicle while under the influence of alcohol and marijuana in an unsafe manner and at an unsafe speed. Freddy Thompson, who was a passenger of the defendant, was killed as a direct result.

4. The exact manner and means allegedly employed by the defendant in the commission of the alleged crime.

The defendant intentionally operated a motor vehicle while under the influence of alcohol and marijuana in an unsafe manner and at an unsafe speed. Freddy Thompson, who was a passenger of the defendant, was killed as a direct result.

....

Secondly, the record reveals that the indictment was never, at any time, amended to charge Osborne with a DUI "second" offense. Accordingly, the relevance of the evidence was certainly at issue even assuming the double jeopardy issue was resolved in favor of the Commonwealth.

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