IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: FEBRUARY 18, 2016 NOT TO BE PUBLISHED
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DAVID GURLEY OA' APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT V. HONORABLE BARRY WILLETT, JUDGE NO. 12-CR-003480
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING, IN PART, REVERSING, IN PART AND REMANDING
A circuit court jury convicted David Franklin Gurley, Jr., of Murder, four
counts of second-degree wanton endangerment, two counts of criminal
mischief, operating a motor vehicle while under the influence of intoxicants,
and failure to maintain required automobile insurance. For these convictions,
the trial court entered judgment sentencing Gurley to twenty-six years'
imprisonment. Gurley argues on direct appeal that several trial errors require
reversal of his convictions. We find Gurley's trial was fundamentally fair and
affirm his convictions and associated sentence, reversing only the conviction
for failure to maintain automobile insurance.
I. FACTUAL AND PROCEDURAL BACKGROUND.
Gerald Goldsmith sat astride his motorcycle, sitting last in a long line of
traffic waiting for the stoplight to turn green. Gurley, who had been drinking
alcohol, approached Goldsmith from behind, driving his SUV under the posted speed limit. As he approached, the stoplight turned green but the vehicles in
the line ahead of Goldsmith had not yet begun to move. Gurley did not appear
to lessen his speed—no skid marks were detected at the scene—and struck
Goldsmith's motorcycle from behind. The force of the impact drove Goldsmith's
motorcycle into the vehicle directly in front of him and sent him flying into the
air. In essence, Gurley drove his SUV through Goldsmith's motorcycle his front
bumper wedged under the car in front of Goldsmith; likewise, that car was
wedged under the car directly in front of it. Goldsmith died from the injuries
suffered in this crash.
Deborah Godsey witnessed the crash. She pulled her vehicle onto the
median of the highway and began to check on those involved. After seeing
Goldsmith's condition, she approached Gurley's vehicle to check on him. He
responded by asking her for a light for his cigarette. Her silence in the face of
this request apparently agitated Gurley as he forcefully repeated his demand.
Deborah simply walked away.
Within minutes, police and emergency personnel arrived. Officers Brittin
and Zimmerman arrived first. Officer Brittin approached Gurley's vehicle and
asked some preliminary questions about his identification and car registration.
Meanwhile, Officer Zimmerman talked to Deborah who informed him she
thought Gurley might be intoxicated and then paused briefly to check on
Goldsmith while emergency personnel were attending to his condition before
joining Officer Brittin at Gurley's vehicle.
2 Based on Gurley's condition, Officer Zimmerman felt a field sobriety test
was appropriate. Gurley was removed from his vehicle and escorted
approximately ten to twelve feet—a distance Gurley still had trouble
navigating—to the rear of an ambulance parked near the accident scene.
There, Gurley momentarily took a seat on the ambulance's bumper. After this
short break, Officer Zimmerman escorted Gurley to the highway median, near
his patrol car. Officer Zimmerman testified he chose this location because it
was safe from surrounding traffic. Repeatedly, Officer Zimmerman attempted
to explain the field-sobriety tests to Gurley but was continually met not only
with Gurley's rejection of such explanations but also his crude announcement
of how intoxicated he was and his request to be taken to jail. The two then
moved to the front of Officer Zimmerman's nearby squad car so Gurley's field
sobriety test could be videotaped with the dash camera. Gurley failed to begin-
let alone complete—two different field sobriety tests correctly, at which point
Officer Zimmerman acceded to Gurley's requests, arresting him and securing
him in the squad car. At the police station, Gurley's blood-alcohol level was
tested via Intoxilyzer and read 0.295, nearly four times the legal limit.
The grand jury indicted Gurley for (1) murder; (2) four counts of first-
degree wanton endangerment; (3) two counts of first-degree criminal mischief;
(4) operating a motor vehicle under the influence of intoxicants, first offense,
aggravating circumstances; (5) failure to maintain required automobile
insurance. At trial, the jury convicted him of all charges except for the first-
degree Wanton Endangerment charges, for which the jury convicted him of four
3 counts of the lesser-included offense of second-degree Wanton Endangerment.
The jury recommended Gurley serve concurrently twenty-six years in prison for
the murder and two-and-a-half years for the first-degree criminal mischief—a
total of twenty-six years in prison. The trial court imposed sentence and
entered judgment accordingly. 1
II. ANALYSIS. A. Wantonly was not Erroneously Defined in the Jury Instructions.
For his first argument of error, Gurley contends that the trial court
instructed the jury erroneously, effectively foreclosing the jury's consideration
of the lesser crime of reckless homicide and essentially directing a verdict of
guilt for wanton murder. We disagree.
The trial court instructed the jury on wanton murder as follows:
[Y]ou will find the defendant, David Franklin Gurley, Jr., guilty of Manslaughter in the Second Degree under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following: A. That in Jefferson County on or about the 4th day of November, 2012, the defendant caused the death of Gerald Goldsmith in a motor vehicle collision; AND B. That in so doing, he was acting wantonly as that term is defined under Instruction, No. 20.
I The trial court's judgment also sentenced Gurley to 12 months' confinement on each count of the four counts of second-degree Wanton Endangerment and 90 days' confinement on the single count of Failure to Maintain Required Insurance, all to run concurrent with the felony sentences.
4 Gurley does not challenge this instruction, but he does take issue with the trial
court's definition of wantonly—Instruction No. 20—specifically, the last
sentence, which reads:
A person acts wantonly with respect to a result or to a circumstance 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 nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts wantonly with respect thereto.2
According to Gurley, the intoxication language in this definition foreclosed any
possibility that the jury would convict him of the lesser offense of reckless
homicide because the wanton mental state was conclusively proven by the
uncontradicted evidence of his intoxication. 3 This argument is unpersuasive.
We need look no further than the text of the instruction to address
Gurley's argument. Despite Gurley's best efforts to argue otherwise,
intoxication, by itself, is not sufficient to constitute wantonness under the
instruction provided to the jury. Gurley concedes the evidence regarding his
intoxication was overwhelming and unchallenged. But before the jury could
2 Emphasis added. 3 Of note, Justice William E. Cooper's learned jury-instruction treatise directs that when a court includes the intoxication language in a wanton definition, "the instructions should also include the definitions of [i]ntoldcation and [v]oluntary intoxication." 1 Cooper, Kentucky Instructions to Juries § 3.03 Comment (5th ed.) (internal references omitted). We agree with this directive. A trial court should provide the jury with the legal definitions of intoxication and voluntary intoxication. The trial court here failed to provide those definitions. Erroneous, to be sure; but, unchallenged by Gurley on appeal. In any event, we do not view this omission as warranting reversal given the circumstances of this particular case. But trial courts should be mindful of definitions necessary to aid the jury in reaching a proper verdict.
5 find Gurley acted wantonly, other questions must have been answered. The
jury had to find from the evidence that Gurley created a substantial and
unjustifiable risk that Goldsmith's death would occur. Under the facts of this
case—especially Gurley's low rate of speed—the jury could have found that
Gurley did not create a substantial and unjustifiable risk. If that had
happened, the jury could have convicted Gurley of reckless homicide, even
though Gurley's intoxication was indisputable. Again, to put it directly,
wantonness is not found simply because an individual is intoxicated.
We should make clear that Gurley's repeated references to the defense of
voluntary intoxication are irrelevant to the issue at hand. The intoxication
language added to the definition of wantonly is not the same as the defense of
voluntary intoxication found in Kentucky Revised Statute (KRS) 501.080. 4
Gurleyiscot:vnaxio,sdefnpratog
particular mens rea, i.e. intent, and lowers the classification of the charged
offense, e.g. intentional murder becomes wanton murder with proof of
voluntary intoxication. Gurley is also correct in his assertion that KRS
501.080 applies to intentional crimes, but his attempt to parlay that into
eliminating the intoxication language from the definition of wantonly provided
to the jury is baffling. The Commentary to KRS 501.080—and Cooper's jury-
instruction treatise—squarely rejects this argument: "Thus, while affording
4 "Intoxication is a defense to a criminal charge only if such condition either: (1) Negatives the existence of an element of the offense; or (2) Is not voluntarily produced and deprives the defendant of substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law."
6 relief to an 'intentional' offense a defendant's intoxication will not afford relief to
an offense having 'wantonness' as its essential element of culpability." 5 If
intoxication language could not be added to a wantonness definition, as Gurley
seems to assert here, we are at a loss to understand how to effectuate the
language of the Commentary. And without the language challenged today by
Gurley, an intoxicated individual could simply argue he was too intoxicated to
be aware of and consciously disregard a substantial and unjustifiable risk as
wantonness requires. 6 Indeed, as implied by the Commentary, this is precisely
the purpose of the intoxication language in the wantonness instruction.
The simple truth is that the challenged jury instruction in no way
granted a de facto directed verdict for the Commonwealth. The jury was not
precluded from reaching reckless homicide. If we were to adopt Gurley's
position, we would eviscerate KRS 501.080 and KRS 501.020. Merely because
an individual is clearly intoxicated—and effectively admits it at trial—does not
mean that a jury must find wanton conduct. It was not impossible for the jury
to have proceeded to reckless homicide.
5 Cooper's treatise, mirroring the language found in KRS 501.020(3), rejects Gurley's argument simply by including intoxication in the definition of wantonness. See 1 Cooper, Kentucky Instructions to Juries § 3.03 (5th ed.). If intoxication were only applicable or pertinent to intentional crimes, this would not have been done either by Cooper or the General Assembly. 6 This begs the question: Without the intoxication proviso Gurley challenges, how could an intoxicated individual be found to have acted wantonly? After all, "wanton conduct involves conscious risk-taking." KRS 501.020 (1974 Commentary). This is the absurdity of Gurley's argument.
7 B. The Trial Court Properly Denied Gurley's Motion to Strike a Juror for Cause. Gurley argues the trial court abused its discretion by refusing to strike
Juror 920513 for cause, forcing him to exercise one of his peremptory strikes
to remove that juror. A juror that Gurley claims he would have stricken if he
had not been forced to exercise a peremptory strike on Juror 920513 sat on the
jury. The issue, therefore, is properly preserved for our review.
During voir dire, the Commonwealth asked if any of the potential jurors
had been arrested for DUI or had a family member or close friend arrested for
DUI to the point that they were affected by it. Juror 920513 raised her hand.
Juror 920513: I'm Juror 920513. My sister was killed in a DUI accident thirty-plus years ago.
Commonwealth: Okay. And this will be similar, a similar case. Would you be able to set that aside and look at the facts of this case independently?
Juror 920513: Yes.
Commonwealth: So you think you would be able to see the victim in this case and not see your sister?
A similar exchange with Juror 920513 occurred during Gurley's voir dire:
Defense counsel: We talked a little bit about how other people's drinking has impacted your lives. And, I know, ma'am [talking to Juror 920513], I think you indicated that you had been touched by a DUI accident. It was your sister? And how long ago did this happen?
Juror 920513: Thirty-plus years.
Defense counsel: Thirty years. I'm sorry about that loss. I'm sure that's something you think about regularly?
8 Juror 920513: Urn Hmm [yes].
Defense counsel: When you heard the charges in this case, did it make you immediately think of that accident and that time frame?
Juror 920513: No, it didn't. The circumstances were different.
Defense counsel: Okay. Would you mind sharing the circumstances, and if you would rather go up . . .
Juror 920513: She was a victim. She got in the car with a driver who was drunk, so .. .
Defense counsel: So, in the same vehicle?
Juror 920513: And they were teenagers.
Gurley argues the trial court acted arbitrarily because it dismissed a similar juror but did not dismiss Juror 920513. In support of this argument,
Gurley urges us to resolve an alleged conflict between our decisions in Little v.
Commonwealth? and Ordway v. Commonwealth. 8 This argument is meritless
and rather than highlight a conflict, the instant circumstances indicate how these cases operate cohesively.
Juror 1008685 indicated that in the last ten years he had been affected
by DUI twice: a former co-worker's young daughter and his sister-in-law's close
friend were both killed by drunk drivers. When asked if these incidents would make it unlikely that he could sit fairly on Gurley's case, Juror 1008685
responded, "Most likely, yes." The Commonwealth then informed Juror
1008685 of its burden of proof and asked if he would be unable to follow the
law, to which he responded, "It's just a touchy subject." The Commonwealth
7 422 S.W.3d 238 (Ky. 2013). 8 391 S.W.3d 762 (Ky. 2013).
9 then analogized reaching a guilty verdict to a math equation and informed
Juror 1008685 he would not be able to take emotions into the analysis. After
this, Juror 1008685 conceded and said he thought he could sit on the jury.
The trial judge eventually granted the defense's motion to strike Juror 1008685 for cause.
Both Juror 920513 and Juror 1008685 were personally affected by a DUI
tragedy. But the trial court's allowing one to sit and dismissing the other does
not indicate arbitrariness. To the contrary, Juror 920513 is an illustration of our decision in Little while Juror 1008685 is illustrative of our decision in
Ordway. Like the juror in Little, Juror 920513 was unequivocal in her ability
to put aside her family tragedy and apply the law to the facts of the case. It is worth repeating that is a dangerous precedent to suggest that life experience alone disqualifies a juror." 9 The totality of responses by Juror
920513 points in only one direction: she would fairly apply the law as presented to her. And just as in Little, a substantial amount of time had
passed between the death of Juror 920513's sister and the time of Gurley's trial. Simply put, Little is dispositive.
As for striking Juror 1008685, that was a proper exercise of discretion under Ordway. Unlike Juror 920513, Juror 1008685 was equivocal in his
responses regarding his impartiality. Juror 1008685 fell into the "gray area" 10 Ordway. And, consistent with Ordway, the trial court chose wemntiod
9 Little, 422 S.W.3d at 244. 10 Ordway, 391 S.W.3d at 780.
10 cautiously to excuse the equivocal juror. 11 Far from abusing its discretion, the
trial court reviewed the jurors' responses in their totality and acted wisely. We
find no error.
C. The Trial Court Correctly Denied Gurley's Motion to Suppress. At the scene of the accident, Officer Zimmerman took Gurley by the
elbow and directed him first to an ambulance, where Gurley briefly took a seat,
and then to the median of the highway. In the median, Officer Zimmerman
twice attempted to administer field sobriety tests to Gurley—each time Gurley
abandoned the test almost immediately. After these attempts, Gurley
requested Officer Zimmerman take him to jail, so Officer Zimmerman placed
Gurley in the back of his patrol car. Before trial, Gurley moved to suppress
statements made to Officer Zimmerman. 12 Gurley argued then, as he does
now, that Officer Zimmerman had him in custody and should have provided
Gurley with a reminder of his Miranda rights. 13 The trial court disagreed and
denied Gurley's motion. We now affirm that decision. 14
Gurley's argument fails because he was not in custody at the time the
statements were made. In Miranda, the Supreme Court sought to protect the
privilege of the Fifth Amendment against compelled self-incrimination by
11 See id. 12 Specifically, Gurley, with the aid of expletives, told Officer Zimmerman he was highly intoxicated, he did not know how much he had to drink, and he wished to go to jail. 13 See Miranda v. Arizona, 384 U.S. 436 (1966). 14 Our review of a trial court's ruling on a motion to suppress is two-fold: (1) the court's findings of fact are conclusive if supported by substantial evidence; and (2) the court's legal conclusions are reviewed de novo. Commonwealth v. Man -, 250 S.W.3d 624, 626-27 (Ky. 2008).
11 barring the prosecution from using "statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of [a] defendant" unless
proper procedural safeguards were used. 15 The Court defined custodial
interrogation as "questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of his freedom of
action in any significant way." 16 So the warnings outlined in Miranda only
become necessary when an individual is taken into custody and later
questioned. 17 Gurley argues he was taken into custody when Officer
Zimmerman took him by the elbow and escorted him to the median.
Put simply, Gurley was not in custody at any point. Officer
Zimmerman's interaction with Gurley was temporary and brief, lasting only a
few short minutes. And the interaction took place in the median of a public
highway, reducing "the ability of an unscrupulous policeman to use illegitimate
means to elicit self-incriminating statements and diminish[ing] the motorist's
fear that, if he does not cooperate, he will be subjected to abuse." 18 Officer
Zimmerman's hold on Gurley's elbow does not rise near the level of custody
covered by Miranda. Gurley's liberty or freedom to move was marginally
affected, at worst. Without Officer Zimmerman's hold on Gurley's elbow
15 Miranda, 384 U.S. at 444. 16 Id. 17 Before a suspect in custody may be questioned, the suspect "must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Id. 18 Berkemer, 468 U.S. at 439.
12 perhaps he would have been free to stumble to the ground, but other than
inhibiting that movement, we see little restraint. For purposes of Miranda,
Gurley was never in custody.
Finally, Gurley attempts to argue this was no traffic stop at all; instead,
Officer Zimmerman approached the situation as a crime scene. Officer
Zimmerman acknowledged as much during his trial testimony. This argument
is misguided because Gurley's attempted distinction is largely immaterial.
Miranda was explicit that general on-the-scene questioning was outside the
scope of its holding: "General on-the-scene questioning as to facts surrounding
a crime or other general questioning of citizens in the fact-finding process is
not affected by our holding.” 19 Nothing more than general questioning
occurred here. Officer Zimmerman asked Gurley a few general questions
before helping him out of his vehicle and asked him if he had been drinking. In
fact, Gurley's interaction with Officer Zimmerman was nearly identical to the
interaction discussed by the Court in Berkemer "a single police officer ask[ing]
respondent a number of questions and requesting] him to perform a simple
balancing test at a location visible to .passing motorists.” 20
Because Gurley was not in custody, he was not entitled to be given
warnings under Miranda, and the trial court correctly denied his motion to
suppress.
19 Miranda, 384 U.S. at 477. 20 Berkemer, 468 U.S. at 442.
13 D. Gurley was Entitled to a Directed Verdict on the Driving Without Insurance Charge. As his final argument on appeal, Gurley asserts he was entitled to a
directed verdict of acquittal on his driving-without-insurance charge because
the Commonwealth's evidence was insufficient to meet its burden of proof. We
agree.
When presented with a motion for directed verdict, "a trial court must
draw all fair and reasonable inferences in favor of the Commonwealth." 21 A
verdict of acquittal should not be granted, i.e. the directed-verdict motion
should be denied, "if the evidence is sufficient to induce a reasonable juror to
believe beyond a reasonable doubt that the defendant is guilty." 22 On appeal,
we similarly must determine "if under the evidence as a whole, it would be
clearly unreasonable for a jury to find guilt." 23 The Commonwealth, generally
speaking, must only produce a mere scintilla of evidence to carry its burden.
If an individual owns or operates a vehicle in this state, he must have
insurance. Under KRS 304.39-080(5):
[E]very owner or operator of a motor vehicle registered in this Commonwealth or operated in this Commonwealth with an owner's permission shall continuously provide with respect to the motor vehicle while it is either present or registered in this Commonwealth, and any other person may provide with respect to any motor vehicle, by a contract of insurance or by a qualifying as a self-insurer, security for the payment of basic reparation benefits in accordance with this subtitle and security for payment of tort liabilities, arising from maintenance or use of the motor vehicle.
21 Hurt v. Commonwealth, 409 S.W.3d 327, 331 (Ky. 2013). 22 Id. 23 Id. (quoting Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky. 1983)).
14 Failing to have insurance subjects an individual to fines or jail time under KRS
304.99-060. The Commonwealth's evidence consisted solely of Officer Brittin
testifying that she did not find proof of insurance in Gurley's car when she
searched the car after his arrest. Officer Brittin admitted that she did not ask
Gurley about his insurance, she simply asked him for his basic information at
which point Gurley provided his driver's license.
The Commonwealth offered no proof regarding the ownership of the
vehicle or whether it had checked Gurley's insurance status with the
Department of Vehicle Regulation, where, by statute, insurers are required to
register all vehicle identification numbers of "each personal motor vehicle
covered by liability insurance issued by the insurer." 24 Simply put, the
Commonwealth convicted Gurley of failing to maintain automobile liability
insurance with evidence indicating only that Gurley did not have proof of
insurance inside his vehicle at the time of the accident. This indicates in no
way whether Gurley actually had insurance at the time of the accident. At
best, the Commonwealth proved Gurley may be unorganized or forgetful. This
is not enough. It is not even a scintilla. The trial court erroneously denied
Gurley's motion for directed verdict on this charge and, consequently, Gurley's
conviction for failure to maintain car insurance is reversed.
III. CONCLUSION. For the foregoing reasons, Gurley's conviction for Driving Without
Insurance is reversed. Gurley's remaining convictions and associated
24 KRS 304.39-087(2).
15 sentences are affirmed. The case is remanded to the trial court for entry of a
conforming judgment.
All sitting. Minton, C.J., Hughes, Noble, and Venters, JJ., concur.
Cunningham, J., concurs in result only by separate opinion in which, Keller
and Wright, JJ., join.
CUNNINGHAM, J., CONCURRING IN RESULT ONLY: I concur in result,
but take issue with only one statement in the opinion. The Majority quotes
from Little lilt is a dangerous precedent to suggest that life experience alone
disqualifies a juror." It's not dangerous at all. Some tragic experiences are so
searing as to forever preclude someone from being able to sit as a juror on a
certain type of criminal case. Common sense alone dictates that a parent
having a child abducted and murdered would never be able to objectively sit as
a juror on a criminal prosecution of a child abduction and murder case.
Unfortunately, life is full of bad experiences, some of which are so horrific as to
permanently scar the soul.
Keller and Wright, JJ., join.
16 COUNSEL FOR APPELLANT:
Daniel T. Goyette Louisville Metro Public Defender of Counsel
Bruce P. Hackett Chief Appellate Public Defender
Aaron Michael Dyke Louisville Metro Public Defender
COUNSEL FOR APPELLEE:
Andy Beshear Attorney General of Kentucky
Leilani K.M. Martin Assistant Attorney General