IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: JUNE 16, 2022 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2020-SC-0449-MR
ROY GLOVER APPELLANT
ON APPEAL FROM PULASKI CIRCUIT COURT V. HONORABLE JEFFREY T. BURDETTE, JUDGE NO. 18-CR-00702-001
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Driving a stolen vehicle, Roy Glover led police on a chase which resulted
in his arrest and a Pulaski County grand jury indicting him on various charges
including attempted murder. At trial, instead of attempted murder, a Pulaski
County jury found Glover guilty of first-degree assault (intentional). Glover
argues on appeal that the trial court erred by (1) instructing the jury on first-
degree assault as a lesser-included offense of attempted murder; (2) not
instructing the jury on the defense of voluntary intoxication; (3) not instructing
the jury on fourth-degree assault; (4) not granting a directed verdict on the
receiving stolen property charge; (5) admitting into evidence a jail-call video;
and (6) allowing a detective to narrate the video. Upon review, we affirm the
Pulaski Circuit Court. FACTUAL AND PROCEDURAL BACKGROUND
Around noon on September 25, 2018, Roy Glover and Michael Wilson
went for a ride in a stolen vehicle. Glover was driving. Science Hill Police
Officer Martin fell in behind the vehicle and activated his lights. Rather than
stopping, Glover accelerated. Officer Martin pursued him reaching speeds of
80 to 90 miles per hour. Other officers joined the pursuit and made efforts to
stop Glover.
Pulaski County Lieutenant Williams placed spike sticks across U.S.
Highway 27. Glover drove onto the shoulder to avoid them. Shortly after that,
Glover steered the vehicle into oncoming traffic, traveling northbound in the
southbound lane, and in particular, forced one motorist off the road to avoid
being struck head-on. After Glover left U.S. Highway 27 and turned onto a
dead-end long driveway, Trooper Baxter and Lieutenant Williams parked their
vehicles at the driveway entrance. When Glover circled back toward the
entrance, Lieutenant Williams began laying down spike sticks between the two
cruisers. Glover accelerated towards the gap. Lieutenant Williams attempted
to jump over the car but was knocked several feet into the air, rolled over the
windshield, and landed on his back. Trooper Baxter fired at Glover but instead
struck the passenger, Wilson, in the neck. The chase continued. Glover
eventually left the car and was found hiding in a soybean field.
Glover was arrested, indicted on multiple charges including attempted
murder of Lieutenant Williams, two counts of wanton endangerment (one count
for endangering an officer and one count for endangering a motorist), first-
2 degree fleeing and evading (motor vehicle),1 receiving stolen property over $500,
and being a persistent felony offender in the second degree. A Pulaski County
jury found Glover guilty of all charges, except for attempted murder, opting
instead to find Glover guilty of first-degree assault (intentional). The jury
recommended a total sentence of seventy-five years in prison, and the trial
court sentenced Glover to seventy years in prison, the statutory maximum
allowed. As noted above, Glover brings six issues on appeal.
ANALYSIS
I. The Trial Court Did Not Err by Instructing the Jury on First- Degree Assault.
The jury was instructed it could find Glover guilty under count one of the
indictment of either attempted murder; first-degree assault, intentional or
wanton; second-degree assault, intentional or wanton; or first-degree wanton
endangerment. The trial court overruled Glover’s objection to the first-degree
assault instruction.
Glover argues that the first-degree assault instruction as a lesser-
included offense of attempted murder was erroneous for two primary reasons:
first, lack of notice through either the indictment2 or discovery that the
Commonwealth would seek a first-degree assault instruction, a crime with
elements differing from attempted murder, and second, insufficiency of the trial
proof to establish the “serious physical injury” element of first-degree assault.
1 The second-degree fleeing and evading (on foot) charge was dismissed. 2 The indictment alleged that Glover committed the offense of attempted murder by “attempting to cause the death of Deputy Jon Williams.” 3 Glover particularly argued before the trial court that he did not have notice
that the Commonwealth would seek a first-degree assault instruction when (1)
discovery only contained a report of a brief hospital visit which indicated no
broken bones, negative results from CT scans and x-rays, and negative results
from a blood test; (2) the evidence the Commonwealth presented at trial to
prove serious physical injury—Lieutenant Williams’ arthritis testimony—was
not supported by hard medical evidence; and (3) Lieutenant Williams refused a
pretrial interview. Before this Court Glover argues expressly that the
indictment charging that he “committed the offense of Criminal Attempt to
Commit Murder, by attempting to cause the death of [Lieutenant] Williams”
also did not provide notice that he would be defending against a first-degree
assault as a lesser-included offense, an offense which requires proof of intent
to harm and that the defendant caused serious physical injury. Glover cites
dicta in Holland v. Commonwealth, 114 S.W.3d 792, 801 n.6 (Ky. 2003), to urge
this Court, like the defendant in Hall v. Commonwealth, 337 S.W.3d 595 (Ky.
2011), to apply the Blockburger v. United States, 284 U.S. 299 (1932), double
jeopardy lesser-included-offense analysis to his case. He asserts that doing so
would bring consistency across the double jeopardy and lesser-included offense
doctrines to the determination that first-degree assault is not a lesser-included
offense of attempted murder.
The Double Jeopardy Clauses of Section 13 of the Kentucky Constitution
and the Fifth Amendment to the United States Constitution prohibit not only
multiple prosecutions for the same offense but also protect against multiple
4 punishments for the same offense at one trial. Jordan v. Commonwealth, 703
S.W.2d 870, 872 (Ky. 1985). Blockburger sets forth the test for determining
whether the same course of conduct may result in multiple convictions,
commonly referred to as the same-elements test.3 Blockburger states “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.” 284
3In Blockburger, the defendant was charged with violating provisions of the Harrison Narcotic Act. 284 U.S at 300.
Section 1 of the Narcotic Act creates the offense of selling any of the forbidden drugs except in or from the original stamped package; and section 2 creates the offense of selling any of such drugs not in pursuance of a written order of the person to whom the drug is sold. Thus, upon the face of the statute, two distinct offenses are created. Here there was but one sale, and the question is whether, both sections being violated by the same act, the accused committed two offenses or only one.
Id. at 303–04.
Each of the offenses created requires proof of a different element. 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. Gavieres v. United States, 220 U.S. 338, 342, 31 S. Ct. 421, 55 L. Ed. 489, and authorities cited. In that case this court quoted from and adopted the language of the Supreme Court of Massachusetts in Morey v. Commonwealth, 108 Mass. 433: ‘A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.’ Compare Albrecht v. United States, 273 U.S. 1, 11, 12, 47 S. Ct. 250, 71 L. Ed. 505, and cases there cited. Applying the test, we must conclude that here, although both sections were violated by the one sale, two offenses were committed.
Id. at 304.
5 U.S at 304. Applying this rule when dealing with greater and lesser offenses,
Brown v. Ohio, 432 U.S. 161, 168 (1977), accordingly held that when the lesser
offense requires no proof beyond that which is required for conviction of the
greater offense, the greater and lesser offenses are the same for double
jeopardy purposes. We have likewise stated that “[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. In such a case, the
defendant has only actually committed one crime and can only endure one
conviction.” Turner v. Commonwealth, 345 S.W.3d 844, 847 (Ky. 2011).
Kentucky Revised Statutes (KRS) 505.020(1)(a) and KRS 505.020(2),
described as codifying Blockburger, see, e.g., Kiper v. Commonwealth, 399
S.W.3d 736, 742, 746 (Ky. 2012), state:
When a single course of conduct of a defendant may establish the commission of more than one (1) offense, he may be prosecuted for each such offense. He may not, however, be convicted of more than one (1) offense when . . . [o]ne offense is included in the other, as defined in [KRS 505.020(2)].
KRS 505.020(1)(a).
A defendant may be convicted of an offense that is included in any offense with which he is formally charged. An offense is so included when:
(a) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(b) It consists of an attempt to commit the offense charged or to commit an offense otherwise included therein; or
(c) It differs from the offense charged only in the respect that a lesser kind of culpability suffices to establish its commission; or
6 (d) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest suffices to establish its commission.
KRS 505.020(2).
KRS 505.020(2) has a dual purpose. “The first is to provide a definition
of the phrase ‘included offense’ for the purpose of limiting the permissibility of
multiple convictions under [KRS 505.020(1)]. The second is to provide for the
circumstances under which conviction of an offense not expressly named in the
charging instrument is appropriate.” KRS 505.020 Kentucky Crime
Commission/LRC Commentary (1974). KRS 505.020(2)(a) “serves to ‘include’
within one offense any other offense (felony, misdemeanor or violation) which
may be established by the same, or less than all, [ultimate] facts required for
proof of the first.” Id “In other words, ‘if the proof necessary to establish the
greater offense will of necessity establish every element of the lesser offense,’
the latter is an included offense.” Id. Thus, KRS 505.020(2)(a) allows a jury to
acquit a defendant of a charged offense and instead convict him of a less
serious crime that is necessarily committed during the commission of the
charged offense.
Perry v. Commonwealth, 839 S.W.2d 268 (Ky. 1992), and Hall, 337
S.W.3d at 595, are cases which applied KRS 505.020(2)(a) and concluded that
the facts of the case supported the trial court allowing the jury to consider
first-degree assault as a lesser-included offense of attempted murder. Glover
contends that his case is unlike Perry and Hall and that the Court should
compare the statutory elements of the two crimes and ultimately determine
7 that first-degree assault is not a lesser-included offense of attempted murder.
Glover believes that not only should this Court not follow Perry and Hall, but it
should go further and overrule those cases.
In Perry, this Court stated that “[f]irst-degree assault can be an included
offense of attempted murder if the missing element which prevents the murder
from being consummated is not a necessary element of first-degree assault.”
839 S.W.2d at 273. We provided the following example:
[A]ssume the defendant shot the victim with a pistol resulting in serious physical injury but not death. If the jury believes that the defendant intended to kill the victim, he can be convicted of attempted murder. If on the other hand, they believe that he did not intend death but only intended to injure the victim, he could be convicted of first-degree assault. . . . There can be no argument that once a defendant has caused “serious physical injury” to a victim, that he has not satisfied the “substantial step” element of attempted murder. The Commonwealth is then required to prove that the intent of the defendant was to kill the victim and not just to cause “serious physical injury.”
Id. With Perry’s mental state being the only element which separated a
conviction for attempted murder from first-degree assault, the Perry Court
concluded the circumstances warranted an instruction on first-degree assault
as an alternative verdict to attempted murder. Id.
When the issue of whether first-degree assault could be considered as a
lesser-included offense of attempted murder was presented in Hall, the
defendant argued that Perry was no longer good law in light of comments in
Holland. 337 S.W.3d at 604. In Holland, while the jury was given a first-
degree assault instruction as a lesser-included offense of attempted murder,
the instruction was not challenged. Holland, however, noted that the Court
8 returned to the statutory element approach for determining lesser-included
offenses for purposes of double jeopardy in Commonwealth v. Burge, 947
S.W.2d 805 (Ky. 1996), an approach viewed as different than that used in
Perry’s lesser-included offense analysis under KRS 505.020(2). Holland noted,
citing Perry:
We observe, however, that in holding that KRS Chapter 508 Assault offenses can be lesser-included offenses of Attempted Murder, this Court explicitly rejected “a strict statutory ‘elements’ approach . . . that looks to the elements of the main and lesser crimes as set out by the applicable statutes, rather than . . . the charge or the evidence.” Perry v. Commonwealth, supra at 271. But just five years after Perry, in Commonwealth v. Burge, Ky., 947 S.W.2d 805, 809–11 (1996) this Court re-examined its double jeopardy jurisprudence, which is the alter-ego (or “flip-side”) of our lesser-included offense law, and returned to the “same element” analysis found in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). We have not had an opportunity since Burge to reconsider whether an Assault offense can be a lesser-included offense to Attempted Murder. In other jurisdictions, which have substantially similar penal statutes, courts have applied Blockburger’s “same element” analysis and have held that assault offenses are not proper lesser-included offenses in attempted homicide prosecutions. See State v. Gisege, 561 N.W.2d 152, 155–156 (Minn. 1997); People v. Maldonado, 123 A.D.2d 788, 507 N.Y.S.2d 415, 417 (N.Y. App. Div. 1986). And, although we have not reached the question as squarely, we would observe that, in Commonwealth v. Hager, Ky., 41 S.W.3d 828 (2001), this Court noted the distinction between KRS Chapter 507 Homicide offenses, which require a person’s death, and KRS Chapter 508 offenses, which require physical injury, and held that the trial court’s jury instructions erroneously presented Fourth– Degree Assault as a lesser-included offense in a Murder prosecution. Id. at 831.
114 S.W.3d 792, 801 n.6.
Hall recognized as dictum Holland’s suggestion that “perhaps Perry
ought to be re-examined in light of our embracing a ‘same elements’ test for
9 determining whether an offense is a lesser-included offense for double jeopardy
purposes in Commonwealth v. Burge.” 337 S.W.3d at 606. While recognizing
that arguments exist “that a Blockburger-type strict statutory elements
approach should govern questions of which offenses a trial court may properly
instruct the jury on as lesser-included offenses of charged offenses,” the Hall
Court found no reason to disturb Perry’s holding that first-degree assault can
be a lesser-included offense of attempted murder depending upon the facts of a
particular case. Id. at 607-08. The Hall Court declined to adopt a strict
statutory elements approach, especially in light of Hall’s failure clearly to
advocate such an approach until after the trial was over. Id. at 606-07.
Like the defendant in Hall, Glover cites Holland, 114 S.W.3d 792, 801
n.6, as reason this Court should use the statutory element approach here,
emphasizing the inconsistency of the lesser-included offense and double
jeopardy jurisprudence within Kentucky and with other states with similarly-
structured penal statutes. Glover further contends that the reasons the Court
would not consider the statutory element approach in Perry and Hall are not
present in his case. He argues that, in contrast to Hall, his objections to the
first-degree assault instruction preserved the question of whether the Court
should apply the statutory element approach for determining lesser-included
offenses. Glover also believes his case is distinguished from Perry and Hall
because he argued to the trial court that the proof did not support a “serious
physical injury” finding, making his case one in which the first-degree assault
10 instruction would be erroneous because more than his mental state separated
his conviction for attempted murder and first-degree assault.
“Because the substantive power to prescribe crimes and determine
punishments is vested with the legislature, . . . the question under the Double
Jeopardy Clause whether punishments are ‘multiple’ is essentially one of
legislative intent.” Ohio v. Johnson, 467 U.S. 493, 499 (1984) (internal citations
omitted). KRS 505.020 declares the General Assembly’s intent regarding
multiple punishments, and as noted above, is understood to incorporate the
Blockburger test, and to the extent that the statute expands upon or otherwise
clearly departs from Blockburger, the General Assembly’s intent controls.
Quisenberry v. Commonwealth, 336 S.W.3d 19, 40 (Ky. 2011). As discussed in
Perry and Hall, and as reflected in its plain language, KRS 505.020(2) provides
four circumstances in which a jury instruction on a lesser-included offense is
proper.
Because the legislature has not directed that the same-elements
approach must be used to determine whether a defendant may be convicted of
an uncharged crime, like in Hall, Glover’s argument that this Court’s double-
jeopardy cases recognize first-degree assault as a separate offense from, and
therefore not a lesser-included offense of, attempted murder when conducting
the Blockburger same-element test, see, e.g., Kiper, 399 S.W.3d at 742–43, is
not persuasive. As Perry and Hall recognize, the Kentucky General Assembly
did not limit the trial court to the “statutory elements” approach. Clearly,
under KRS 505.020(2)(a), the trial court may use a fact-based approach to
11 determine whether a lesser-included offense instruction is appropriate. Even if
Glover’s objections to the first-degree assault jury instruction were viewed as
preserving the argument for application of the statutory element approach, we
find no basis for overruling Perry or Hall here. Furthermore, in regard to
Glover’s notice argument, KRS 505.020(2) and particularly this Court’s
interpretation of it in Perry and Hall provides notice to defendants that first-
degree assault, although not named in an indictment charging attempted
murder, may be the subject of a jury instruction at trial. Here, the question
whether the trial court erred by giving the first-degree assault instruction
comes down to whether the trial court abused its discretion when finding that
evidence was sufficient to prove Lieutenant Williams suffered a “serious
physical injury.”
An instruction is properly given when the evidence would permit a
reasonable juror to make the finding the instruction authorizes. See Sargent v.
Shaffer, 467 S.W.3d 198, 203 (Ky. 2015) (citation omitted). Because “[a]
decision to give or to decline to give a particular jury instruction inherently
requires complete familiarity with the factual and evidentiary subtleties of the
case that are best understood by the judge overseeing the trial from the bench
in the courtroom,” we review a claim that the trial court erred by giving an
instruction that was not supported by the evidence for an abuse of discretion.
Id.
A person may be found guilty of assault in the first degree under one of
two scenarios, one involving intentional conduct and the other involving
12 wanton conduct,4 but both scenarios have in common the causation of serious
physical injury. KRS 508.010. Here, Glover was found guilty of intentional
first-degree assault. KRS 508.010(a). Specifically, KRS 508.010(a) provides
that a person is guilty of first-degree assault when he “intentionally causes
serious physical injury to another person by means of a deadly weapon or a
dangerous instrument.” “Serious physical injury” is defined as “physical injury
which creates a substantial risk of death, or which causes serious and
prolonged disfigurement, prolonged impairment of health, or prolonged loss or
impairment of the function of any bodily organ.” KRS 500.080(17).5 In this
case, the question is whether Lieutenant Williams suffered a prolonged
impairment of health from his physical injury.
Lieutenant Williams testified at trial about his injuries. He explained
that while he suffered pain from his injuries that day adrenaline had allowed
him to rejoin the chase and he was driven to the hospital after the scene was
cleared. The jury saw photos of bruising and injuries to his legs and lower
back. Lieutenant Williams also testified that he developed a hematoma on his
lower back after being struck by the vehicle. He was forced to miss six weeks
4 KRS 508.010(b) states: “Under circumstances manifesting extreme indifference to the value of human life he wantonly engages in conduct which creates a grave risk of death to another and thereby causes serious physical injury to another person.” 5 As of April 8, 2022, the definition for serious physical injury was recodified under KRS 500.080(17). 2022 Ky. Acts ch. 151, § 1. Prior to that, and at the time of Glover’s criminal actions considered in this case, it was codified under KRS 500.080(15). See id. Because the recodification does not impact the analysis, we reference now effective KRS 500.080(17).
13 of work because putting on his gun belt caused intolerable pain. Lieutenant
Williams also testified that he continues to suffer from arthritis in his back,
which causes pain whenever it rains. He explained that he did not have back
pain or arthritis before being struck by the vehicle seventeen months earlier.
Parson v. Commonwealth, 144 S.W.3d 775 (Ky. 2004), established that
prolonged pain may be a “prolonged impairment of health” constituting a
“serious physical injury.” Id. at 787. In Parson, the Court determined
substantial, prolonged pain—the victim suffered from headaches, neck pain,
lack of range of motion caused by muscle spasms, upper back pain, and
numbness in her right arm for five months after a car accident, and continued
to have neck pain, for which she was required to take medication regularly, at
the time of the trial—constituted a “prolonged impairment of health” and found
“serious physical injury.” Id. While the trial court in this case concluded that
Lieutenant Williams’ testimony regarding his arthritic pain supported a finding
of “serious physical injury,” Glover argues that the facts of his case are more
comparable to Anderson v. Commonwealth, 352 S.W.3d 577 (Ky. 2011), which
resulted in this Court reversing Anderson’s conviction of assault in the first
degree due to insufficient evidence of a “serious physical injury.” Id. at 584.
In Anderson, this Court found the proof insufficient to show that the
victim’s bleeding, a one-inch deep razor cut to his jaw line, was a serious
physical injury. At the hospital, the victim’s elevated heart rate, attributed to
adrenaline, was treated with IV medication, his cut was sutured, and he was
sent home. Id. at 582. Afterward the victim was off work for a while and
14 occasionally had sharp neck pains. Id. There was no proof of any subsequent
medical treatment related to the laceration. Id. Glover argues that although
Lieutenant Williams testified seventeen months after being struck by the car
that his injury is “still painful today,” his testimony that his hematoma hurt for
“a little while” and that arthritic pain comes on rainy days shows that he did
not suffer prolonged pain.
The Commonwealth views Anderson as clarifying that pain suffered
infrequently or only “every once in a while” is insufficient to establish prolonged
pain. The Commonwealth, however, points out that like the victim in Parson
who continued to suffer pain nineteen months after a car crash, even beyond
the six weeks of pain he suffered from the hematoma, Lieutenant Williams
continued to suffer pain seventeen months after being struck by the car. The
Commonwealth argues that it produced ample evidence upon which a
reasonable jury could find that Glover’s assault caused Lieutenant Williams to
suffer prolonged pain, and hence, prolonged impairment of health.
We agree with the Commonwealth. While Glover complains that medical
evidence was not part of the Commonwealth’s proof, enduring arthritic pain is
a widely known, common occurrence from accidents. It was the province of the
jury to weigh the officer’s credibility and certainly a reasonable juror could
make the finding authorized by a first-degree assault instruction. We conclude
the trial court did not abuse its discretion by instructing the jury on first-
degree assault.
15 II. The Trial Court Did Not Err by Denying a Voluntary Intoxication Instruction.
Glover’s next claim in regard to the jury instructions is that the trial
court committed error when it refused to give an instruction for voluntary
intoxication. Under Glover’s theory of the case, his methamphetamine use did
not allow him to form the specific intent required to be found guilty of
attempted murder—the intent to kill, KRS 507.020(1)(a); intentional first-
degree assault—the intent to cause serious physical injury, KRS 508.010(1)(a);
or intentional second-degree assault—the intent to either cause serious
physical injury or to cause physical injury by means of a deadly weapon or
dangerous instrument, KRS 508.020(1)(a).
The jury heard testimony from Detective Moore and Glover regarding
Glover’s intoxication. Glover testified that he took methamphetamine the night
before, or the morning of, the police chase. However, he conceded that he
knew he was supposed to stop for the police, knew he was putting people in
danger, but fled because he did not want to go to prison, but doubted he would
have made the same decision sober. During his post-arrest interview, Glover
told Detective Moore that he was not intoxicated. Detective Moore testified that
he was experienced with people under the influence of methamphetamine and
saw no sign Glover was high during the interrogation.
A voluntary intoxication instruction is appropriate when the evidence is
reasonably sufficient to prove the defendant was so intoxicated that he did not
know what he was doing. Luna v. Commonwealth, 460 S.W.3d 851, 882 (Ky.
16 2015) (citation omitted). While Glover testified to use of methamphetamine
prior to driving, neither that testimony, his demeanor during the interrogation,
nor other evidence supported the requested instruction. Consequently, we find
the trial court did not abuse its discretion by denying a voluntary intoxication
instruction.
III. The Trial Court Did Not Err by Denying a Fourth-Degree Assault Instruction.
Glover’s last jury instruction claim is that the trial court erred by denying
a fourth-degree assault instruction as a lesser-included offense of attempted
murder. A person is guilty of fourth-degree assault when “he intentionally or
wantonly causes physical injury to another person” or “with recklessness
causes physical injury to another person by means of a deadly weapon or a
dangerous instrument.” KRS 508.030(1). Glover contrasts the elements of the
assault crimes to argue that the jury could have reasonably doubted that he
was guilty of first- or second-degree assault but found him guilty of fourth-
degree assault. With the proof being that Glover hit Lieutenant Williams with a
car, which is undisputed to be a dangerous instrument, Glover focuses his
argument on the possibility that the jury could have found that he acted with
recklessness, as opposed to wantonly. In regard to the mental states, a person
acts recklessly “when he fails to perceive a substantial and unjustifiable risk
that the result will occur or that the circumstance exists.” KRS 501.020(4).6 A
6 KRS 501.020(4) states:
A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he fails to 17 person acts wantonly “when he is aware of and consciously disregards a
substantial and unjustifiable risk that the result will occur or that the
circumstance exists.” KRS 501.020.7
As Glover notes, citing Taylor v. Commonwealth, 995 S.W.2d 355, 362
(Ky. 1999), a fourth-degree assault instruction is unwarranted if there is no
evidence which would support a finding that he acted recklessly. While Glover
views his testimony that he did not see Lieutenant Williams as supporting a
jury’s finding that he was acting recklessly, that testimony must be considered
against Glover’s testimony that he “definitely” knew he was putting people in
danger when he decided to flee from the police in a vehicle and avoid prison by
“any means necessary.” Because the fourth-degree assault instruction is only
required if the jury could have reasonably doubted that he did not act
wantonly, the evidence Glover points to does not support the fourth-degree
assault instruction. The trial court did not abuse its discretion by denying
Glover’s request for the instruction.
perceive 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 failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. 7 KRS 501.020(3) states:
A person acts wantonly with respect to a result or to a circumstance described by a statute defining an offense 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.
18 IV. The Trial Court Did Not Err by Denying a Directed Verdict on the Receiving Stolen Property Charge.
Glover was driving a stolen vehicle, a 1996 Toyota Camry, during the
chase and was charged with receiving stolen property of a value of at least
$500. Glover’s fourth claim on appeal is that the trial court should have
granted a directed verdict on the charge given the state of the stolen vehicle.
The jury saw photos of the Camry. The owner of the vehicle testified that
the vehicle’s dents existed before it was stolen; the driver’s side window was not
operational; the driver’s side door was missing its interior panel; the paint job
was original; and the odometer reading was between 438,000 and 468,000
miles. The owner also testified that the car would have sold for $1000 because
it had a working motor and was still capable of reaching 110 miles per hour.
As to the owner’s experience with vehicles, he had purchased six or seven
vehicles in his lifetime.
Glover complains that no reasonable juror could conclude that a dented
23-year-old car with at least 438,000 miles on it was worth more than $500.
He asserts that the owner’s testimony of what the car would have sold for is
misleading and citing Commonwealth v. Reed, 57 S.W.3d 269, 270 (Ky. 2001),
that the Commonwealth was required to establish the market value of the car
at the time of the theft. While an owner’s testimony of the value of the stolen
property is competent evidence, id. at 270 (citing Poteet v. Commonwealth, 556
S.W.2d 893, 896 (Ky. 1977)), Glover cites Beasley v. Commonwealth, 339
S.W.2d 179, 181 (Ky. 1960), for the premise that for things such as
19 automobiles which have market values established by recognized objective
resources, such as the National Automobile Dealers Association (NADA)
manual, those resources should be the evidence used to provide the value of
the stolen property in order to provide consistency within the law. Beasley,
discussing the valuation of stolen property in a grand larceny case (now
included within KRS 514.030 Theft by Unlawful Taking), states:
The true criterion is the fair market value of the property at the time and place it was stolen, if there be such a standard market; if not, the value must be arrived at from the facts and circumstances and the uses and purposes which the article was intended to serve.
Id. (citations omitted).
While Glover may have preferred a certain industry resource to have
been used to establish the value of the stolen vehicle, that is not the state of
the law in Kentucky. Even before Poteet, our predecessor Court’s civil
decisions long expressed the rule that an ordinary witness who testifies that he
knows the market value of an automobile is competent to express his view of
such value and is not required to be an expert or have special qualifications for
that purpose. See Carpenter v. Haydon, 447 S.W.2d 351, 352 (Ky. 1969);
Williams v. Kirtley, 263 S.W.2d 119, 121 (Ky. 1953) (citing Louisville & N.R. Co.
v. Hill, 212 S.W.2d 320 (Ky. 1948), and General Exch. Ins. Corp. v. Branham,
178 S.W.2d 409 (Ky. 1944)). As such, the Commonwealth produced sufficient
evidence for the jury to be instructed on the offense of receiving stolen property
with a value at least $500. “When presented with a motion for a directed
verdict, a court must consider the evidence as a whole, presume the
20 Commonwealth’s proof is true, draw all reasonable inferences in favor of the
Commonwealth, and leave questions of weight and credibility to the jury.”
Acosta v. Commonwealth, 391 S.W.3d 809, 816 (Ky. 2013) (citing
Commonwealth v. Benham, 816 S.W.2d 186, 187–88 (Ky. 1991)). A trial court
should deny a directed verdict when the “Commonwealth has produced . . .
more than a scintilla [of evidence] and it would be reasonable for the jury to
return a verdict of guilty based on it.” Id. “On appellate review, the standard is
slightly more deferential; the trial court should be reversed only if ‘it would be
clearly unreasonable for a jury to find guilt.’” Id. We conclude the trial court
did not err by denying the requested directed verdict.
V. Even if the Trial Court Erred by Admitting into Evidence a Jail-Call Video, It Was Harmless Beyond a Reasonable Doubt.
Prior to trial, Glover filed a motion in limine to exclude a video recording
of a jail phone call, also referred to here as a Telemate call. Glover was not a
call participant. Instead, the video showed Glover walking around in orange
jail attire, flexing his bicep muscles, and saying to the female call participant,
“Got them cop killing muscles, girl!” Glover moved to exclude the video on the
basis it might make Glover seem dangerous. The trial court overruled Glover’s
motion, finding Glover’s statement relevant to proving Glover’s attempt to kill
and its probative value not substantially outweighed by the danger of undue
prejudice. Although the Commonwealth recommended the trial court provide
an admonishment, the trial court concluded that doing so was unnecessary
since the jury would already know Glover had been arrested at the end of the
21 chase. At trial, the approximately two-minute video was played, showing its
date stamp of October 16, 2018, and therefore reflecting that it was recorded
three weeks after Glover’s arrest. Glover argues on appeal that the admission
of the jail-call video without an admonishment deprived him of his right to a
fair trial. A trial court’s decision to admit evidence is reviewed for an abuse of
discretion. Anderson v. Commonwealth, 231 S.W.3d 117, 119 (Ky. 2007).
Glover primarily relies on Deal v. Commonwealth, 607 S.W.3d 652 (Ky.
2020), decided after Glover’s trial, to argue that the jury seeing him in jail
clothes deprived him of the right to a fair trial. In Deal, the Commonwealth
made both audio and video recordings of the 35-minute interview when Deal
was questioned by an Assistant Commonwealth Attorney and a homicide
detective. Id. at 656. The video showed Deal wearing handcuffs and an orange
inmate jumpsuit. Id. The video date stamp showed that the interview at the
jail occurred two months after Deal’s arrest. Id. at 668. The trial court denied
Deal’s motion to exclude the video without addressing why the audio recording
would not suffice. Id. at 656. The trial court agreed with the Commonwealth
that because Deal was charged with murder, no one would be surprised that
he was in jail. Id.
This Court explained that admitting video evidence depicting a defendant
in jail custody is not inherently prejudicial in all circumstances, id. at 663, but
that videos of the defendant “bearing badges of custody,” such as wearing
shackles and inmate garb, “pose a threat to the defendant’s right to a fair trial
because it tends to suggest to the jury that some official determination has
22 already been made that the defendant needs to be restrained and separated
from society,” id. at 667. To determine whether a video is inherently
prejudicial, the trial court must engage in a thorough analysis of factors
relevant in the specific case, such as the likelihood that it could be interpreted
by the jury as indicating that the defendant has already been adjudged to be
particularly dangerous or culpable. Id. at 663. If the trial court finds that the
video is “inherently prejudicial,” or prejudicial based on the circumstances of a
particular case, its next step is to consider if the video is justified by some
identifiable, essential state interest. Id. at 664. If so, the trial court may
exercise its discretion to allow its admission. Id. In Deal, the Court concluded
that Deal was entitled to reversal of his conviction of second-degree
manslaughter by complicity; the Court explained that “the video was
prejudicial based on specific circumstances of Deal’s case, the trial court
abused its discretion in admitting the video without engaging in the required
analysis, and the Commonwealth failed to prove beyond a reasonable doubt
that this error did not influence the jury’s verdict.” Id. at 667.
Glover contends that because the trial court did not address any of the
factors listed in Deal and denied the Commonwealth’s request for an
admonition, there is no way to know how Glover’s appearance in the jail video
affected the verdict and therefore his convictions should be reversed. The
Commonwealth, on the other hand, describes the trial court explaining its
basis for admitting the Telemate video, leading to the conclusion under Deal
that the video was properly admitted. The Commonwealth, comprehensively
23 addressing Deal’s analysis, asserts that the video was not inherently
prejudicial, that the video served an essential state interest, and the jury’s
decision to acquit Glover of attempted murder proves beyond a reasonable
doubt that Glover was not prejudiced by the video.
Beginning with the question whether the video could be interpreted by
the jury as indicating the Glover had already been adjudged to be particularly
dangerous or culpable, the Commonwealth characterizes the video as making
clear that Glover was considered sufficiently low risk that he did not need to be
shackled and had some freedom to mingle and socialize with other inmates.
The video’s time stamp showed that Glover was in jail three weeks after his
arrest, in contrast to Deal’s, which showed he was in jail two months
afterward. Additionally, being about two minutes in length, the video’s length
reduced its potential for unfair prejudice. The Commonwealth also points out
that in contrast to Deal, where the police officers recorded their interrogation of
Deal while he was in jail, Glover is on the video boasting about his “cop killing
muscles” on his own volition during a personal jail phone call between a fellow
inmate and someone Glover apparently knew.
Assessing the essential state interest the video served, the
Commonwealth makes the point that Glover does not deny that his boast was
relevant to the main dispute at trial—whether he struck Lieutenant Williams
with the intent to kill or accidentally. Furthermore, Glover does not argue that
this evidence could have been introduced in an alternative manner, the video
providing the necessary context to go with his boast. The Commonwealth
24 views the trial court’s decision not to give an admonition as the only factor that
weighs in Glover’s favor, but contends that since video evidence of a defendant
in custody is not inherently prejudicial in all circumstances, the admission of a
two-minute video of an unshackled Glover mingling with other jail inmates
while wearing an orange jail uniform cannot be considered a significant threat
to his constitutional right to a fair trial.
Lastly, the Commonwealth argues that even if the video was erroneously
admitted, the circumstances show beyond a reasonable doubt that playing the
video was harmless. That is, the video was only relevant to proving Glover
possessed the requisite intent for attempted murder and the jury acquitted him
of that charge, instead finding him guilty of first-degree assault. Moreover,
Glover fails to explain how the video would have unduly influenced the jury to
find that he caused Lieutenant Williams to suffer serious physical injury—the
only disputed issue for first-degree assault. Upon review, we agree with the
Commonwealth, even if the trial court erred by admitting the Telemate video,
playing the video was harmless beyond a reasonable doubt.
VI. The Trial Court Did Not Commit Palpable Error by Allowing Detective Moore’s Testimony about the Jail-Call Video.
Prior to playing the Telemate video for the jury, the Commonwealth
asked Detective Moore what Glover said on the video. Without objection,
Detective Moore replied: “Mr. Glover comes behind the other inmate, and he
flexes his arm, kinda showing his muscle, and says ‘got them cop killing
muscles, girl!’” Viewing this as prejudicial, Glover seeks palpable error review
of Detective Moore’s interpretation of the Telemate video. 25 Under Kentucky Rule of Criminal Procedure (RCr)10.26, if an
unpreserved error is found to be palpable and if it affects the substantial rights
of the defendant, the appellate court may grant appropriate relief if manifest
injustice has resulted from the error. An error is palpable when it is “easily
perceptible, plain, obvious and readily noticeable.” Brewer v. Commonwealth,
206 S.W.3d 343, 349 (Ky. 2006). The error must be “so manifest, fundamental
and unambiguous that it threatens the integrity of the judicial process.” Martin
v. Commonwealth, 207 S.W.3d 1, 5 (Ky. 2006).
Generally, the testimony of a lay witness is limited to matters or facts
about which he has personal knowledge. See Kentucky Rule of Evidence (KRE)
602; KRE 701; Toler v. Sud-Chemie, Inc., 458 S.W.3d 276, 287 (Ky. 2014);
Martin v. Commonwealth, 13 S.W.3d 232, 235 (Ky. 1999). Citing Morgan v.
Commonwealth, 421 S.W.3d 388, 392 (Ky. 2014), Glover argues that Detective
Moore, not a party to the conversation, “interpreted” the video and usurped the
function of the jury as the ultimate finder of fact by interpreting the video.
Detective Moore’s testimony, however, was not interpretive in the sense that his
testimony was responsive to the Commonwealth’s questions. Cuzick v.
Commonwealth, 276 S.W.3d 260, 266 (Ky. 2009). Furthermore, “narrative
testimony is not necessarily interpretive testimony.” Id. To the extent
Detective Moore testified about events he was not personally familiar with, he
did not testify to anything that was not captured in the video recording itself,
which the jurors could watch and interpret independently. Boyd v.
Commonwealth, 439 S.W.3d 126, 132 (Ky. 2014). If any error occurred, it was
26 not palpable and so fundamental that it threatened the integrity of the judicial
process. Brewer, 206 S.W.3d at 349; Martin, 207 S.W.3d at 5.
CONCLUSION
For the foregoing reasons, the Pulaski Circuit Court’s judgment is
affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Jared Travis Bewley Assistant Public Advocate
COUNSEL FOR APPELLEE:
Daniel J. Cameron Attorney General of Kentucky
Robert Baldridge Assistant Attorney General