Margie J. Johnson v. Commonwealth of Kentucky

• Court: Kentucky Supreme Court
• Decided: February 17, 2021
• Docket: 2019 SC 0567
• 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IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: FEBRUARY 18, 2020 NOT TO BE PUBLISHED

Supreme Court of Kentucky 2019-SC-0567-MR

MARGIE J. JOHNSON APPELLANT

ON APPEAL FROM LOGAN CIRCUIT COURT V. HONORABLE TYLER L. GILL, JUDGE NO. 18-CR-00212

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

A Logan Circuit Court jury convicted Appellant, Margie J. Johnson, of

one count of wanton murder; two counts of wanton endangerment, and one

count each of operating a motor vehicle under the influence of alcohol,

operating on a suspended license, tampering with a witness, falsely reporting

an incident, failure to yield right-of way, and failure to maintain required

insurance. Following the recommendation of the jury, the trial court sentenced

Johnson to twenty years’ imprisonment. She now appeals as a matter of right.1

1 Ky. Const. § 110(2)(b) (“Appeals from a judgment of the Circuit Court imposing a sentence of...imprisonment for twenty years or more shall be taken directly to the Supreme Court.”). Johnson asserts a single claim of error: the trial court erred in denying

her motion for a directed verdict as to murder because the Commonwealth

failed to prove that she acted with extreme indifference to the value of human

life. After review, we affirm the judgment of the trial court.

I. FACTUAL BACKGROUND

This case arises out of a fatal traffic accident in Logan County. Johnson

was driving westbound on Stevenson Mill Road with her two minor children as

her passengers. Johnson then came to an intersection and drove across the

highway without yielding to oncoming traffic. As she crossed the intersection,

Johnson struck a blue van traveling southbound along the highway. The

collision caused the van to skid and flip over the adjacent guard rail. The van’s

driver, Carl Hodges, was ejected from the vehicle, suffering fatal injuries.

At the scene of the accident, Johnson falsely informed police that she

had been traveling southbound when Hodges’ blue van appeared suddenly and

struck the vehicle. Additionally, she claimed that her 15-year-old son had been

driving at the time of the accident. Her son immediately objected, prompting

the police to conduct a series of field sobriety tests, which Johnson failed.

Shortly thereafter, Johnson was taken to the hospital and her blood was drawn

for testing. The blood test revealed that her blood alcohol level was .242 grams

per 100 ml of blood, over three times the legal limit.

Johnson was indicted of murder, two counts of wanton endangerment,

one count of operating a motor vehicle under the influence of alcohol, one

2 count of operating on a suspended license, one count of tampering with a

witness, one count of falsely reporting an incident, one count of failing to

maintain insurance, and one count of disregarding a stop sign2.

At the close of the Commonwealth’s case, Johnson moved for a directed

verdict on all counts, including the charge of wanton murder. Specifically,

Johnson argued that the Commonwealth failed to prove that she had acted

with “extreme indifference to the value of human life.” The trial court denied

this motion. During her case, Johnson introduced a toxicology report showing

that the only drug in her system at the time of the accident was alcohol.3

Johnson failed to renew the motion for directed verdict at the close of all the

evidence.

The jury found Johnson guilty on all counts. By agreement of both

parties, the court sentenced Johnson to the minimum on all charges, resulting

in a sentence of 20 years’ imprisonment. This appeal follows.

Additional facts are included below as necessary.

II. ANALYSIS

A. The trial court did not err in denying Johnson’s motion for directed verdict.

2 The stop sign charge was later amended to reflect the evidence presented at

trial that Johnson stopped at a stop sign but failed to yield the right of way to oncoming traffic. Each of these offenses is governed by the same statute, KRS 189.330. 3 In addition to the lab report, the parties stipulated that Johnson was not pregnant at the time of the accident and that Johnson was not under the influence of a drug other than alcohol.

3 1. Preservation

At the threshold, we note that Johnson failed to preserve her motion for

directed verdict when she did not renew her motion at the conclusion of the

defense’s case-in-chief. Johnson concedes that she did not renew her motion

but urges this Court to nevertheless hold that the issue is sufficiently

preserved. We decline to do so.

First, Johnson claims that our case law regarding preservation of

directed verdict issues contains numerous, severe inconsistencies and requests

this Court revisit our precedent to provide guidance. We agree that, at the time

Johnson filed her notice of appeal, our precedent in this area failed to provide

litigants sufficient guidance on how to preserve issues concerning the denial of

directed verdict motions. During the pendency of this appeal, however, this

Court decided Ray v. Commonwealth.4 There, we outlined a new standard for

preservation of directed verdict issues:

Accordingly, we now hold that in order to preserve an alleged directed verdict issue for appeal, criminal defendants must: (1) move for a directed verdict at the close of the Commonwealth's evidence; (2) renew the same directed verdict motion at the close of all the evidence, unless the defendant does not present any evidence; and identify the particular charge the Commonwealth failed to prove, and must identify the particular elements of that charge the Commonwealth failed to prove. Criminal defendants may move for directed verdict on one count of a multiple count indictment without rendering the alleged error unpreserved; defendants are not required to move for directed verdict on any lesser included offenses to a particular charge in order to preserve the issue; and, nor are they required to object to instructing the

4 611 S.W.3d 250 (Ky. 2020).

4 jury on that particular charge to preserve the alleged directed verdict error.5

Ray addresses many of the inconsistencies validly raised by Johnson,

but it does not excuse Johnson’s failure to renew her motion at the close of her

case-in-chief. Though Ray overrules a sizable portion of our case law on

preservation of directed verdict issues, we expressly affirmed and retained the

requirement that a defendant must renew her motion for a directed verdict if

she introduced evidence in her case-in-chief.6 In contrast to other aspects of

the doctrine, we found the requirement of renewal to be “by and large, both

frequently and consistently applied.”7 Accordingly, Johnson’s failure to renew

her motion for directed verdict at the close of her case cannot be excused

because the requirement was well-established at the time of her trial and

remains established post-Ray.

Second, Johnson urges us to abandon the requirement of renewal on

constitutional grounds. It is axiomatic that the prosecution must introduce

sufficient proof to support a jury finding of guilty beyond a reasonable doubt.8

Johnson argues that the renewal rule undermines that fundamental guarantee.

Under this theory, the failure of the prosecution to introduce sufficient

5 Id. at 266 (emphasis in original). 6 See Id 7 Id. at 258 n.25 (outlining numerous cases in which this Court upheld the requirement that a defendant renew her motion for directed verdict to properly preserve it.). 8 See Acosta v. Commonwealth, 391 S.W.3d 809, 819 (Ky. 2013).

5 evidence to prove an element of a criminal charge causes the defendant’s due

process right to vest at the close of the prosecution’s case. The introduction of

evidence in the defendant’s case, according to Johnson, does not matter

because the flaw in the prosecution proof will remain unless it is somehow

cured by the defendant’s proof. In sum, Johnson asserts that the requirement

of renewal harms the defendant’s constitutional rights for the failure to take a

superfluous action: the constitutional error that they properly objected to

persists regardless of whether the defendant introduced further evidence or

not.

We note that we have considered and rejected this argument in a prior

decision, Baker v. Commonwealth.9 There, the defendant, relying on our

plurality opinion in Dyer v. Commonwealth10, argued that one should only be

required to renew their directed verdict motion when the evidence introduced

subsequent to the defendant’s motion for a directed verdict cured the

prosecution’s failure to introduce sufficient evidence.11 We rejected that

argument and clearly rejected Dyer.12

973 S.W.2d 54 (Ky. 1998) (overruled on other grounds by Ray v. 9

Commonwealth, 611 S.W.3d 250 (Ky. 2020)). 816 S.W.2d 647 (Ky. 1991) (overruled by Baker v. Commonwealth, 973 10

S.W.2d at 55). 11 Baker, 973 S.W.2d at 54-55. 12 Id.

6 “Stare decisis is a doctrine which has real meaning to this Court.”13

Although “the doctrine of stare decisis does not commit us to the sanctification

of ancient [or relatively recent] fallacy,”14 we will faithfully apply precedent

unless “sound reasons to the contrary” justify departure.15 Only in cases

where a common law rule has proven to be anomalous, unworkable, or

contrary to public policy, will we overturn settled law.16

Here, departure is not warranted. The requirement that an issue be

preserved is a fundamental tenet of appellate procedure; an appellate court—

generally—lacks jurisdiction to review issues not raised or considered before

the trial court.17 “The critical point in preservation of an issue remains: was the

question fairly brought to the attention of the trial court.”18 The requirement of

renewal reinforces this principle: it ensures that the trial judge was afforded an

opportunity to pass on the propriety of the motion as the evidence adduced

throughout the trial changes.

13 Gilbert v. Barkes, 987 S.W.2d 772, 776 (Ky. 1999). 14 Morrow v. Commonwealth, 77 S.W.3d 558, 559 (Ky. 2002). 15See Williams v. Wilson, 972 S.W.2d 260, 269 (Ky. 1998) (Stephens, C.J. concurring) (quoting Hilen v. Hays, 673 S.W.2d 713, 717 (Ky. 1984)). 16 D & W Auto Supply v. Dept. of Revenue, 602 S.W.2d 420, 424 (Ky. 1980). 17See Fischer v. Fischer, 348 S.W.3d 582 (Ky. 2011) (abrogated on other grounds by Nami Resources Company, L.L.C. v. Asher Land and Mineral, Ltd., 554 S.W.3d 323 (Ky. 2018)). MV Transp., Inc. v. Allgeier, 433 S.W.3d 324, 331 (Ky. 2014)(quoting Lanham 18

v. Commonwealth, 171 S.W.3d 14, 20-21 (Ky.2005)).

7 Though we recognize that a defendant assuredly does not intend to

present evidence that cures a fatal flaw in her opponent’s case, that possibility

is not precluded as a matter of logic. Indeed, the presentation of evidence in

the defense’s case may lead to factual developments—during either cross-

examination or the Commonwealth’s rebuttal—that, under the totality of the

circumstances, are relevant to the court’s judgment on a directed verdict

motion. Renewal affords the trial court the opportunity to consider that

possibility.

Moreover, criminal defendants are protected from a trial court’s error

affecting substantial, constitutional rights by the palpable error standard.

Pursuant to RCr19 10.26, an unpreserved error which “affects the substantial

rights of a party may be considered 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.” If a defendant demonstrates that an error threatens their entitlement to

due process of law, then reversal is warranted notwithstanding the defendant’s

failure to preserve. A conviction based on insufficient evidence violates the

defendant’s due process rights and merits reversal under the palpable error

standard.20

19 Kentucky Rule of Criminal Procedure. 20 Cf. Acosta, 391 S.W.3d at 819.

8 In sum, Johnson cannot show that the requirement of renewal should be

overruled under principles of stare decisis. The rule is not anomalous in

consideration of the present state of the doctrine; rather, it is part and parcel

with the general requirement that a trial court must have an opportunity to

consider an issue prior to appellate review. Further, the rule is not

unworkable. To the contrary, it provides a bright-line requirement that may be

consistently applied by courts. Finally, to the extent that a trial court

improperly denies a motion for directed verdict, the palpable error standard

serves to protect the defendant from legitimate infringement on their due

process rights. For the foregoing reasons, we reject Johnson’s argument that

the requirement of renewal be overturned and hold that she failed to preserve

her motion for appellate review.

2. Directed Verdict

Given that the trial court’s alleged error was unpreserved, we undertake

review pursuant to the palpable error standard.21 Thus, Johnson must

demonstrate that the trial court’s decision to deny her motion for directed

verdict affected her substantial rights and that allowing the decision to stand

would lead to manifest injustice.

This Court determined the standard trial courts must apply when

confronted with motions for directed verdict in Commonwealth v. Benham:

21 Johnson properly requests palpable error review as required by RCr 10.26.

9 On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true but reserving to the jury question as to the credibility and weight to be given to such testimony.22

On appeal, we must determine “if under the evidence as a whole, it would

clearly unreasonable for a jury to find guilt, only then the defendant is entitled

to a directed verdict of acquittal.”23

KRS24 507.020(1)(b) provides that “a person is guilty of murder when…

[while operating] a motor vehicle under circumstances manifesting an extreme

indifference to human life, he wantonly engages in conduct which creates a

grave risk of death to another and thereby causes the death of another person.”

“Extreme indifference to human life” lacks precise definition under our case

law. In lieu of a (checklist of factors) establishing wantonness, the finder of

fact must examine the facts of each case under the totality of the

circumstances.”25

As both parties indicate, many of our DUI-related wanton murder cases

employ a “drunkenness-plus” framework to determine if the defendant acted

22 816 S.W.2d 186, 187 (Ky. 1991). 23 Id. 24 Kentucky Revised Statutes. 25 See Bowling v. Commonwealth, 553 S.W.3d 231 (Ky. 2018).

10 with extreme indifference to human life. That is, we look for some indicia of

reckless behavior in addition to the fact that the defendant was intoxicated.

Thus, in Hamilton v. Commonwealth, we determined that a defendant who was

drunk, driving with excessive speed, and ran a red light was guilty of wanton

murder.26 Similarly, in Bowling v. Commonwealth, we held that the trial court

properly denied the defendant’s motion for directed verdict when the evidence

showed that he was drunk and weaved across the center line.27

In this case, the evidence produced by the Commonwealth was of a

similar nature to Hamilton and Bowling. Johnson’s blood test revealed that her

blood alcohol content was substantially higher than the legal limit.

Additionally, eyewitness testimony established that she drove through an

intersection into oncoming traffic without regard, ignoring the right-of-way.

Finally, while the evidence did not establish that Johnson was traveling in

excess of the legal speed limit, she was traveling at sufficient speed to cause

the victim’s van to flip over an adjacent guard rail and cause significant

damage to both vehicles. In consideration of the foregoing evidence and our

relevant precedent, a reasonable jury could conclude that Johnson acted with

extreme indifference to human life. As a result, we hold that the trial court’s

26 560 S.W.2d 539 (Ky. 1977). 27 Bowling, 553 S.W.3d at 237-38.

11 denial of Johnson’s directed verdict motion was not error, let alone palpable

error.28 III. CONCLUSION

For the foregoing reasons, the Logan Circuit Court’s judgment is hereby

affirmed.

All sitting. Minton, C.J.; Hughes, Keller, Lambert, Nickell and VanMeter,

JJ., concur. Conley, J., concurs in result only.

COUNSEL FOR APPELLANT:

Aaron Reed Baker Department of Public Advocacy

COUNSEL FOR APPELLEES:

Daniel J. Cameron Attorney General of Kentucky

Lauren Rachel Lewis Assistant Attorney General

28 See RCr 10.26