David McKee v. Commonwealth of Kentucky

• Court: Kentucky Supreme Court
• Decided: May 24, 2007
• Docket: 2005 SC 000954
• Status: Unknown

Opinion

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED : MAY 24, 2007 NOT TO BE PUBLISHED

uyrtutt Caurf of 2005-SC-000954-MR

DAVID MCKEE APPELLANT

APPEAL FROM BREATHITT CIRCUIT COURT V. HON. LARRY MILLER, JUDGE NO. 05-CR-00043

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

Affirminq

This is a matter of right appeal from a judgment in which appellant

was convicted of Wanton Murder, Fourth-Degree Assault, and Operating a

Vehicle Under the Influence of Alcohol for crashing his car head-on into another

car while drunk. Appellant argues that the trial court erred in allowing the

prosecutor to misstate certain key evidence in his closing argument and that a

potential juror was improperly dismissed for cause . We reject both allegations of

error and thus affirm .

On December 17, 2004, Anthony and Michelle Wenrick, along with

Michelle Wenrick's daughter, Shephanie Moore, traveled from Nicholasville to

Jackson to visit Michelle's brother who was in the hospital . Upon leaving the hospital that evening, the Wenricks decided to visit Michelle's mother in Morgan

County. The Wenricks allowed Stephanie to ride in a minivan with Michelle's two

nieces and decided to follow the van because her nieces claimed to know the

way. After traveling along Kentucky 30 for some distance, Michelle's niece

pulled over and told the Wenricks that she was lost . The Wenricks had a map so

they decided to take the lead with the van following behind them . The Wenricks

began traveling when Anthony, who was driving, spotted an oncoming vehicle

about a 100 yards away in their lane without its headlights on. Anthony testified

that both cars were traveling approximately 50 mph and that the oncoming

vehicle was traveling nearly in the shoulder of his lane . Anthony attempted to

avoid the car and veer left, but the two vehicles collided head-on. The Wenrick's

Toyota went airborne, flipped and ultimately came to rest on its hood. Anthony

and Michelle were removed from the vehicle with the jaws of life and taken to the

Kentucky River Medical Center in Jackson . Anthony suffered minor injuries.

Michelle was flown to University of Kentucky Medical Center where she later died

of her injuries .

Sergeant Elvis Noble of the Jackson Police Department responded

to the accident at approximately 7 :38 p.m. When Noble arrived on the scene, he

observed a male and a female conversing with each other in an overturned

Toyota. Sergeant Noble testified that he did not request that the state police

perform an accident reconstruction because he did not believe it to be a fatal

accident at the time . While the EMS and the fire department were working to get

the Wenricks out of their vehicle, Sergeant Noble approached the other vehicle. Upon establishing that the driver, David McKee, was not injured, Sergeant Noble

asked McKee to perform a field sobriety test. McKee failed the test, so he was

arrested . Sergeant Noble thereupon took McKee to the hospital to have a blood

sample taken . McKee's blood alcohol level was determined to be 0.18 grams per

100 milliliter.

McKee was indicted on charges of Wanton Murder, Fourth-Degree

Assault, and Operating a Vehicle Under the Influence of Alcohol . A jury trial was

held on October 12-13, 2005. The defense offered no evidence at trial . McKee

was found guilty on all counts. Thereafter, McKee agreed to a sentence of

twenty (20) years and was ultimately sentenced in accordance with this

agreement . This appeal followed .

McKee's first argument is that the trial court erred in allowing the

prosecution during its closing argument to misstate evidence from the hospital

medical records indicating that Anthony Wenrick was intoxicated on the night of

the wreck . Upon the Commonwealth's motion, the Wenricks' hospital records

were admitted into evidence at trial . In two places in Anthony's records there is a

notation of "acute alcohol intoxication" . In another place in Anthony's records it

states, "Blood alcohol level was 0.4." And a chemical analysis report for Anthony

from the hospital's lab shows a reading of "ALC 0 .4H - 0 mg/d".

During defense counsel's cross-examination of witness Brent

Benning, the Kentucky State Police crime lab toxicology chemist who conducted

the blood alcohol analysis on McKee's blood sample, it was elicited that grams

per 100 milliliter was the universal standard which state forensic labs use to measure blood alcohol levels . On redirect, the Commonwealth asked Benning if

he knew whether that was the standard that hospitals use to measure blood

alcohol levels. Benning replied that the only other standard he had seen used by

hospitals was milligrams per deciliter, which could easily be converted to grams

per 100 milliliter by dividing the number by 1000.

During McKee's closing argument, defense counsel maintained that

Anthony Wenrick was also driving while intoxicated and could have just as likely

been the cause of the wreck. In attempting to refute this theory of the case, the

prosecutor in his closing argument pointed out that some of Anthony's hospital

records contained an incorrect social security number and also alleged that the

hospital likely used the milligrams per deciliter standard to measure Anthony's

blood alcohol level. The prosecutor then noted that converting the 0.4 milligrams

per deciliter blood alcohol level to a grams per 100 milliliter blood alcohol level

would result in a 0 .004 level, which would be negligible. At this point, defense

counsel objected and a bench conference ensued.

McKee's counsel argued that this was a misstatement of the

evidence because there was no evidence as to how the hospital had in fact

calculated Anthony's blood alcohol level and that the prosecution should not be

able to do the mathematical conversion for the jury. The prosecutor responded

that his assertion was a reasonable inference from the testimony of Brent

Benning that hospitals sometimes use the milligrams per deciliter standard to

measure blood alcohol levels. The trial court overruled McKee's objection and

denied his motion for a mistrial, but instructed the Commonwealth to tell the jury that they could do their own conversion. The Commonwealth agreed and told

the jury that they were free to do their own conversion .

McKee argues that the trial court erred in allowing the

Commonwealth to speculate in its closing argument about how the Kentucky

River Medical Center measured Anthony's blood alcohol level when there was

absolutely no evidence in the record about which standard the hospital used to

measure Anthony's blood alcohol level . It is McKee's position that this

misstatement of the evidence was prejudicial in this case because the evidence

of Anthony Wenrick's intoxication was central to the issue of causation of the

wreck and the defense theory that Anthony was also driving while intoxicated and

could have been the cause of the wreck.

"It is a well settled principle that matters pertaining to closing

arguments lie within the discretion of the trial court." Hawkins v. Rosenbloom , 17

S.W.3d 116, 120 (Ky.App. 1999) . Prosecutors are permitted wide latitude during

closing arguments and are entitled to draw all reasonable inferences from the

evidence to support any explanation of the evidence that supports a finding of

guilt, as well as respond to matters raised by the defense . Commonwealth v.

Mitchell, 165 S.W.3d 129,132 (Ky. 2005) (citing Lynem v. Commonwealth , 565

S .W.2d 141 (Ky. 1978) and Hunt v. Commonwealth , 466 S.W.2d 957 (Ky. 1971)) ;

Tamme v. Commonwealth , 973 S .W.2d 13, 39 (Ky. 1998) . "However, they may

not argue facts that are not in evidence or reasonably inferable from the

evidence ." Garrett v. Commonwealth , 48 S .W.3d 6,16 (Ky. 2001) . In the case sub judice, the prosecutor's assertion that Anthony

Wenrick's blood alcohol level was likely computed using the milligrams per

deciliter standard was in direct response to the defense theory that Anthony

Wenrick was intoxicated and was the cause of the accident . We believe the

assertion was a reasonable inference from the hospital records and Brent

Benning's testimony that the hospitals sometimes use that standard . The

hospital's chemical analysis report showing a reading of "ALC 0.4H - 0 mg/d"

indicates that the hospital may have, in fact, used the milligrams per deciliter

standard . And when viewed in light of the following evidence that Anthony was

not intoxicated, the assertion was corroborated by other evidence in the record:

the testimony of Officer Miller, who interviewed Anthony at the hospital after the

wreck, that Anthony did not appear to be under the influence of alcohol ; notations

in the hospital records that Anthony was alert, oriented, cooperative, and his

pupils were normal ; and Anthony's testimony that he had not consumed any

alcohol on the night of the wreck. Accordingly, the trial court did not abuse its

discretion in allowing the prosecutor's statements regarding how the hospital may

have computed Anthony's blood alcohol level.

McKee next argues that the trial court erred when it improperly

excused a juror for cause . The juror in question, David Saint, revealed during

voir dire that defense counsel had represented his father three years ago when

he was being prosecuted in Breathitt County (the same county as the case at

bar) for killing someone while driving his automobile in an intoxicated state . Mr.

Saint recalled accompanying his father to conferences at defense counsel's office . Mr. Saint stated that he was satisfied with defense counsel's

representation of his father and that he would hire counsel to represent him if he

ever found himself in a similar situation . Although Saint stated that his father's

case would have no bearing on his decision in the present case, when asked if

he would be able to fairly consider the evidence without any bias against the

Commonwealth, Mr. Saint replied, "I won't know til I get there ." The

Commonwealth moved to strike Mr. Saint for cause, arguing that he could not be

impartial due to his father's similar charges and the fact that defense counsel had

represented his father .

A determination whether to excuse a juror for cause lies within the

sound discretion of the trial court and is reviewed only for a clear abuse of

discretion . Soto v. Commonwealth , 139 S.W.3d 827 (Ky. 2004), cert. denied,

544 U.S. 931, 125 S . Ct. 1670, 161 L. Ed . 2d 495 (2005) . "The question of jury

bias is decided by examining whether the challenged juror can be impartial in

light of the particular facts and circumstances connecting the juror to the case to

be tried." Rodriauez v. Commonwealth , 107 S.W .3d 215, 221 (Ky. 2003). "Bias

is implied from any close relationship, familial, financial or situational, with any

party, counsel, victim, or witness, which, though not so close as to cause

automatic disqualification, nevertheless transgresses the concept of a fair and

impartial jury." Sholler v. Commonwealth , 969 S.W.2d 706, 709 (Ky. 1998)

(citation omitted) .

McKee contends that because Mr. Saint was never himself a

former client of defense counsel, it was error for the court to strike him for cause . We disagree . On the contrary, given the fact that Mr. Saint's father was tried for

the same crime three years earlier, was represented by the same defense

counsel, that Mr. Saint was satisfied enough with his performance that he would

hire him in a similar situation, and, foremost, Mr. Saint's admitted uncertainty on

whether he could be impartial, we believe the court would have abused its

discretion had it not stricken Mr. Saint for cause.

The judgment of the Breathitt Circuit Court is affirmed .

All sitting . All concur. COUNSEL FOR APPELLANT :

Randall L. Wheeler Assistant Public Advocate 100 Fair Oaks Lane, Suite 302 Frankfort, KY 40601

COUNSEL FOR APELLEE :

Gregory D. Stumbo Attorney General Room 118, Capitol Building Frankfort, KY 40601

David W. Barr Assistant Attorney General Office Of Attorney General Office Of Criminal Appeals 1024 Capital Center Drive Frankfort, KY 40601-8204