Thornton v. Commonwealth, 092619 KYSC, 2018-SC-000422-MR

Docket Nº2018-SC-000422-MR
AttorneyFOR APPELLANT: Julia Karol Pearson Assistant Public Advocate Department of Public Advocacy. FOR APPELLEE: Andy Be shear Attorney General of Kentucky Joseph A. Newberg, II Assistant Attorney General Office of Criminal Appeals.
Case DateSeptember 26, 2019
CourtSupreme Court of Kentucky




No. 2018-SC-000422-MR

Supreme Court of Kentucky

September 26, 2019



FOR APPELLANT: Julia Karol Pearson Assistant Public Advocate Department of Public Advocacy.

FOR APPELLEE: Andy Be shear Attorney General of Kentucky Joseph A. Newberg, II Assistant Attorney General Office of Criminal Appeals.


Michael Thornton was convicted of third-degree assault, two counts of first-degree wanton endangerment, second-degree wanton endangerment, fleeing or evading police, first-degree criminal mischief, receiving stolen property, second-degree escape, theft by failure to make required disposition of property, tampering with a prisoner monitoring device, and being a persistent felony offender in the first degree. He was sentenced to twenty years in prison. Thornton now appeals his conviction as a matter of right, making the following arguments: (1) his convictions for escape and tampering with a prisoner monitoring device violated double jeopardy; (2) his convictions for second-degree wanton endangerment and fleeing or evading police violated double jeopardy; (3) the trial court erred by failing to sever the escape and tampering charges from the remaining charges; (4) the trial court erred in failing to excuse a juror for cause; and (5) the trial court erred in denying his Batson motion.1For the reasons set forth below, Thornton's second-degree wanton endangerment conviction is reversed and vacated, and all other convictions are affirmed.


Michael Thornton was subject to home incarceration, an alternative to incarceration where inmates are placed on house arrest and their locations are monitored through an ankle bracelet (anklet). Under the terms of home incarceration, Thornton was not permitted to leave his residence unless he was making a court appearance, reporting to the Louisville Metro Department of Corrections Home Incarceration Unit (HIU), or seeking emergency medical treatment. He was required to stay within the four walls of his residence and could not go outside even if he remained on his property. Thornton acknowledged these conditions in writing. On March 26, 2015, HIU received a notification that Thornton's anklet had been tampered with and that the strap was open. Police located the anklet at its last known location at the intersection of 17th and Lytle Streets and searched for Thornton in the surrounding neighborhood but could not locate him.

Officer Hagan, who was in charge of supervising Thornton while on home incarceration, had information that Thornton was romantically involved with Kathryn Mclntire, a probationer who reported to the Clifton probation office. Officer Hagan requested that Mclntire's probation officer contact Officer Hagan when she was at the probation office and hold her there until she could be interviewed.

On April 2, Thornton dropped Mclntire off at the probation office in a silver vehicle. The car driven by Thornton was stolen days prior. Mclntire had never seen the vehicle before and did not know how long Thornton had been driving it. He told her that it was his uncle's vehicle. At the probation office, Officer Hagan convinced Mclntire to call Thornton and request that he pick her up. Officer Hagan called for backup and learned that Thornton may be driving a stolen vehicle. He then parked in a secluded area behind bushes that provided him with a view of the parking lot.

After Thornton dropped Mclntire off, he picked up his cousin Robert and Robert's girlfriend, Pauline, in the stolen vehicle. Thornton returned to the parking lot of the probation office and Officer Hagan determined that it was Thornton driving. Officer Hagan and Detective Joshua Jaynes pulled into the probation office parking lot and put their emergency lights on as Thornton was attempting to leave. Officer Hagan parked nose to nose with Thornton's vehicle and Thornton backed his vehicle down the length of the short parking lot. Officer Hagan and Detective Jaynes exited their vehicles with weapons drawn and gave loud verbal commands to Thornton to stop the vehicle, show his hands and exit the vehicle. Thornton shifted his vehicle from reverse to drive and the vehicle slowly began to move forward as Detective Jaynes attempted to open Thornton's door.

Thornton then accelerated toward Officer Hagan. Officer Hagan testified that he fired two shots through the windshield as he jumped to avoid being hit. He fired an additional shot through Thornton's window as he drove by.[2] Thornton accelerated down an embankment, across the street and up a hill before turning back toward the street and hitting Officer Keeling's marked police car, pushing it into Officer Hundley's marked police car. This forced Thornton's car to come to a stop and he and his passengers were removed from the vehicle. Both Thornton and Robert had been shot.

The jury found Thornton guilty of third-degree assault of Officer Hagan, two counts of first-degree wanton endangerment as to the passengers in his vehicle, second-degree wanton endangerment as to Officer Keeling, first-degree fleeing or evading police, first-degree criminal mischief (damaging the stolen vehicle), receiving stolen property (the stolen vehicle), second-degree escape, theft by failure to make required disposition of property (abandoning the anklet and charger), and tampering with a prisoner monitoring device. In the penalty phase, the jury found that Thornton is a first-degree persistent felony offender.

The trial court sentenced him to an enhanced sentence of twenty years in prison.


I. The Second-Degree Escape and Tampering With a Prisoner Monitoring Device Convictions Did Not Violate Double Jeopardy.

Thornton acknowledges that this first issue is unpreserved. "[D]ouble jeopardy violations can be addressed as palpable error because the nature of such errors is to create manifest injustice." Cardine v. Commonwealth, 283 S.W.3d 641, 652 (Ky. 2009). Kentucky Rule of Criminal Procedure (RCr) 10.26 provides the standard for palpable error review and states: [a] palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.

The Fifth Amendment to the Kentucky Constitution states that "[n]o person shall, for the same offense, be twice put in jeopardy of his life or limb." Kentucky courts rely on Blockburger v. United States, 284 U.S. 299 (1932), to resolve double jeopardy claims. Dixon v. Commonwealth, 263 S.W.3d 583, 588 (Ky. 2008). Additionally, Kentucky Revised Statute (KRS) 505.020 outlines the statutory structure for determining whether multiple convictions stemming from the same conduct are permissible.

"The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger, 284 U.S. at 304. We review the escape and tampering statutes to determine whether they contain an element that the other does not. "Pursuant to this test, 'a defendant is put in double jeopardy when he is convicted of two crimes with identical elements, or where one is simply a lesser-included offense of the other.”' Kiper v. Commonwealth, 399 S.W.3d 736, 742 (Ky. 2012) (quoting Turner v. Commonwealth, 345 S.W.3d 844, 847 (Ky. 2011)).

Under KRS 519.070(1): A person is guilty of tampering with a prisoner monitoring device when he or she intentionally alters, disables, deactivates, tampers with, removes, damages, or destroys any device used to facilitate electronic monitoring or supervision of a person who is on probation or parole, or has been ordered to wear a device as a condition of pretrial release.

The statute does not require the defendant to escape or even have an intent to escape in order to be convicted. "A person is guilty of escape in the second degree when he escapes from a detention facility or, being charged with or convicted of a felony, he escapes from custody." KRS 520.030(1). "Escape" is defined as "departure from custody or the detention facility in which a person is held or detained when the departure is unpermitted, or failure to return to custody or detention following temporary leave granted for a specific purpose or for a limited period." KRS 520.010(5). This Court has determined that a person's behavior while in the home incarceration program can constitute second-degree escape. Weaver v. Commonwealth, 156 S.W.3d 270, 272 (Ky. 2005).

Thornton argues that his act of removing the anklet was not readily distinguishable from the escape. He states that he removed the anklet and left the home incarceration program with the same intention - to escape. He cites to Kiper, 399 S.W.3d at 739, where a defendant was convicted of attempted murder and first-degree assault after firing multiple gunshots in rapid succession, then shooting a single shot as he drove away. Kiper argued that the two convictions constituted a double jeopardy violation. Id. at 739. The Court held that the convictions violated KRS 505.020(1)(b), which "prohibits a conviction for more than one offense when inconsistent findings of fact are required to establish the commission of the offenses." Id. at 741.

The Court based its holding on the specific factual context of Kiper's acts. Id. at...

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