Walden v. Commonwealth

805 S.W.2d 102, 1991 Ky. LEXIS 3, 1991 WL 3212

• Court: Kentucky Supreme Court
• Decided: January 17, 1991
• Docket: 88-SC-860-MR
• Status: Published

Opinions

OPINION OF THE COURT

On April 16, 1988, the appellant, Burton R. Walden, was operating his van on a two-lane country road in Madison County, at a high rate of speed, when he dropped a wheel off the pavement, lost control, crossed the center line, and struck a vehicle occupied by Vickie S. Hall, causing her death. Police found empty beer cans in the back of Walden’s vehicle, and he smelled “pretty strongly” of alcohol. A blood alcohol sample drawn at a nearby emergency room tested out to .297%. A qualified expert witness testified this was not far short of the 0.3% reading at which the average person would normally pass out. The expert also testified that this level of intoxicants would delay reaction time and cause disorientation, confusion, a problem with depth perception and balance, and affect one’s judgment.

A Madison County jury found appellant guilty of wanton murder and operating a motor vehicle while under the influence of alcohol (second offense), in violation of KRS 607.020(l)(b) and KRS 189A.010, respectively. He has been sentenced to twenty years on the wanton murder charge, and six months in jail and a $500 fine on the driving under the influence second offense charge, the sentences to be served concurrently. He appeals to our Court as a matter of right, raising issues of double jeopardy, insufficient evidence to prove wanton murder, and trial error in admitting evidence of the statutory presumption regarding intoxication.

An expert testified regarding the effects that would be caused by the appellant’s blood alcohol level of intoxicants, and, in addition, over appellant’s objection the trial court read to the jury the statutory presumption in KRS 189.520(3)(c), stating:

“If there was 0.10 percent (1/10%) or more by weight of alcohol in such blood, it shall be presumed that the defendant was under the influence of intoxicating beverages.”

At this point defense counsel moved the trial court to admonish the jury that this statutory presumption applied “only to the charge of driving under the influence” and had “no weight or influence to any charge in the indictment as it relates to murder.” The trial court refused this admonition stating:

“[I]t’s all one thing, he was either under the influence for the driving under the influence and as part of his wanton conduct or he wasn’t. And it’s pretty hard to separate the yoke and the white in this particular egg; ...”

The first issue we will discuss is whether it was prejudicial error for the trial court to permit this evidence on the vehicular homicide charge, and to refuse the requested limiting admonition. Overstreet v. Commonwealth, Ky., 522 S.W.2d 178 (1975) so holds, stating:

“[T]he statute is confined by its terms to prosecutions for the statutory offense of operating a vehicle under the influence of intoxicating beverages, which is a misdemeanor. ...

[T]he foregoing statute, which provides a convenience for the benefit of the prosecution in a limited type of misdemeanor case, cannot reasonably or fairly be extended to provide the same convenience for the prosecution in cases of a more serious character, such as the one here involved for first-degree involuntary manslaughter, a felony carrying punishment of imprisonment up to 15 years.” Id. at 179.

But although Overstreet states such evidence is not admissible, it then holds the error not prejudicial because of “ample evidence” from other sources that the appellant was drunk. Id. The situation in the present case is similar. In Overstreet the blood alcohol reading was .28%. Here it is .297%. Like Overstreet, here also, there is overwhelming evidence from sources other than the reading of the statute to prove the appellant was drunk at the time of the collision. By his own testimony the appellant had started drinking early the previous evening at the “Foot Loose Saloon.” About 12:30 a.m. he called his wife and told her that since he had been drinking he was not going to drive home but would stay at a friend’s house for the night. He testified he stopped drinking about 1:30 or 2:00 a.m., went to bed shortly thereafter, and got up feeling sober shortly before 9:00 a.m. the next morning to drive home. But his inebriated condition at the scene and his blood alcohol level were not consistent with this claim.

Thus, while the Commonwealth has conceded, and we agree, that it was error to instruct the jury in the murder prosecution on the statutory presumption that applies only to D.U.I. cases, we also agree with the Commonwealth that here it was harmless error. Each charge prosecuted must stand on its own bottom, and the trial court erred in permitting the Commonwealth to piggyback the statutory presumption into the murder prosecution by claiming that it was admissible in the D.U.I. prosecution. On the contrary, if the Commonwealth elects to prosecute both charges in the same trial, the fact that it is inadmissible in the murder case means the statutory presumption should not be used in the D.U.I. prosecution, rather than vice versa. In Wells v. Commonwealth, Ky., 561 S.W.2d 85, 86 (1978), we state that the D.U.I. “statutory presumptions are legislative substitutes for expert testimony devised for prosecutorial convenience in narrowly limited situations.” Here the so-called legislative substitute should not have been utilized, but it was merely cumulative of other highly persuasive expert testimony to the same effect, so the harmless error rule (RCr 9.24) applies.

The appellant asserts he was entitled to a directed verdict of acquittal as to the wanton murder charge because the evidence was insufficient to prove the essential element of “extreme indifference to human life” as required by KRS 507.-020(l)(b). In Hamilton v. Commonwealth, Ky., 560 S.W.2d 539, 541 (1978), this Court recognized driving under the influence as sufficient to prove the element of wanton conduct required in KRS 507.020(l)(b). As here, in Hamilton the appellant contended that “mere speeding and intoxication are not sufficient to sustain a conviction for murder because the defendant [Hamilton] did not have the culpable state of mind required.” We stated:

“A majority of the members of this Court is of the opinion that the legislature enacted KRS 507.020(l)(b) to deter such conduct.” Id. at 544.

A Dissenting Opinion by Chief Justice Palmore, joined by two others, stated “I do not believe that either the drafters of the Kentucky Penal Code or the members of the General Assembly that enacted it had any intention of placing the reckless act of an automobile driver, whether drunk or sober, in the same category as that of a deliberate murderer.”

Whatever the legislative view might have been of the elements of wanton murder in 1974 when the Penal Code was enacted, this view of legislative intention is dispelled by an Amendment in 1984, enacted as part of the so-called “Slammer Bill” directed at drunk driving. The 1984 Amendment adds to KRS 507.020(l)(b) by specifying as a prefatory phrase, “including, but not limited to, the operation of a motor vehicle....” So this subsection [KRS 507.020(l)(b) ] of the murder statute now reads, somewhat awkwardly:

“Including, but not limited to, the operation of a motor vehicle under circumstances manifesting extreme indifference to human life, he wantonly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person.” Ky.Acts 1984, Chapter 165, Section 26. [New portion underlined.]

The 1984 Amendment declares legislative intent to include vehicular homicide as potentially serious enough to justify a murder conviction, but it does not change the essential nature of the elements of the offense. Wanton murder continues to be distinguished from second-degree manslaughter, KRS 507.040, which also punishes “wantonly caus[ing] the death of another person,” by the additional element described in the phrase, “under circumstances manifesting extreme indifference to human life.” The 1984 “Slammer Bill” also amended second-degree manslaughter (KRS 507.040) by adding the phrase, “including, but not limited to, the operation of a motor vehicle.” The difference between wanton murder and involuntary manslaughter (Manslaughter II) continues to be, as the Penal Code originally intended, whether there is evidence from which the jury could find “circumstances manifesting extreme indifference to human life.” Depending on the situation, drunk driving may be such a circumstance.

In Nichols v. Commonwealth, Ky., 657 S.W.2d 932 (1983), involving “firing of a pistol into an occupied car,” we held that whether the evidence proved wanton murder or second-degree manslaughter was a question of fact, quoting the Model Penal Code, § 201.2 [sic], Comment 2 (Tent.Draft No. 9, 1959), to the effect that whether wantonness is so extreme that it demonstrates such indifference to human life as to qualify as the culpable equivalent of intentional murder “is not a question that, in our view, can be further clarified; it must left directly to the trier of the facts.” 657 S.W.2d at 935. Applying this rule to present circumstances, we hold that here the extreme nature of the appellant’s intoxication was sufficient evidence from which a jury could infer wantonness so extreme as to manifest extreme indifference to human life. Therefore, we affirm the conviction for wanton murder.

Next, although unpreserved by contemporaneous objection, we consider the double jeopardy question. Jones v. Commonwealth, Ky., 756 S.W.2d 462 (1988). As we held in Sherley v. Commonwealth, Ky., 558 S.W.2d 615 (1977), the constitutional protection against double jeopardy is not waived by failing to object at the trial level. The Commonwealth has questioned whether this rule applies where the claim of double jeopardy relates to multiple prosecutions in a single trial, as contrasted with cases involving successive prosecutions, but Sherley is just such a case. So is Jordan v. Commonwealth, Ky., 703 S.W.2d 870 (1986) and Jones v. Commonwealth, supra.

Recently, in Grady v. Corbin, 495 U.S. -, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), the United States Supreme Court affirmed a New York case, Corbin v. Hillary, 74 N.Y.2d 279, 545 N.Y.S.2d 71, 543 N.E.2d 714 (1989), with a fact situation very similar to the present one. That case held conviction for both driving while intoxicated and for a vehicular homicide charge based on driving while intoxicated constituted double jeopardy. The Commonwealth has questioned the application of Grady v. Corbin to the present case on grounds that it involved successive prosecutions whereas in the present case there was but a single trial. We do not undertake to decide whether under federal law there is a distinction between multiple prosecutions in successive trials or in the same trial for what is factually a single offense, because these Kentucky cases cited above (Sherley, Jordan and Jones), applying § 13 of our own Kentucky Constitution and KRS 505.020 of the Kentucky Penal Code, have made no distinction between multiple prosecutions in the same trial or in successive trials. Our Kentucky Constitution, § 13, provides “[n]o person shall, for the same offense, be twice put in jeopardy of his life or limb,” and KRS 505.020 attempts to provide standards for applying our Kentucky Double Jeopardy Clause.

In Ingram v. Commonwealth, Ky., 801 S.W.2d 321 (1990), we analyze our Kentucky constitutional protection against multiple convictions for what is factually a single offense, and we conclude that regardless of language in earlier opinions suggesting “the protections against double jeopardy afforded by the Kentucky Constitution are coextensive with those guaranteed by the Fifth Amendment of the Constitution of the United States_ Our interpretation of [our own constitution] has not in fact mirrored the United States Supreme Court’s reading of the other.” Ingram expressly states constitutional protection against multiple punishments for crimes which are factually a single offense applies under Kentucky law, rejecting a distinction if any there be under federal law on the basis of successive rather than the same trial. We hold here, as we do in Ingram, that under Kentucky constitutional law this right does not depend for its existence upon prosecutorial discretion attaching to the decision to try multiple charges in the same trial rather than in successive trials.

In Corbin v. Hillary, supra, and Grady v. Corbin, supra, first the New York Supreme Court held, and then the United States Supreme Court affirmed, that a defendant who had previously plead guilty to the misdemeanor charge of driving while intoxicated, could not subsequently be prosecuted for criminal homicide growing out of the same incident. The United States Supreme Court holds in Grady:

“In Illinois v. Vitale, 447 U.S. 410 [100 S.Ct. 2260, 65 L.Ed.2d 228] (1980), we suggested that even if two successive prosecutions were not barred by the Blockburger test, the second prosecution would be barred if the prosecution sought to establish an essential element of the second crime by proving the conduct for which the defendant was convicted in the first prosecution. Today we adopt the suggestion set forth in Vitale. We hold that the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” — U.S. at -, 110 S.Ct. at 2087, 109 L.Ed.2d at 557.

Here, as in Grady v. Corbin, the proof that the appellant was driving under the influence of alcohol was the same proof used to establish the wanton conduct element of the criminal homicide.

The Commonwealth maintains that theoretically wanton murder and D.U.I. are not the same offense, using the so-called Blockburger test. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), states there is no double jeopardy so long as each statute “requires proof of a fact which the other does not.” In Grady v. Corbin, the United States Supreme Court expressly rejects Blockburger as the “exclusive definition of the term ‘same offense’ in the Double Jeopardy Clause.” — U.S. at-, n. 8, 110 S.Ct. at 2091, n. 8,109 L.Ed.2d at 561, n. 8. Grady v. Corbin cites Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977); Payne v. Virginia, 468 U.S. 1062, 104 S.Ct. 3573, 82 L.Ed.2d 801 (1984) and Illinois v. Vitale, supra, all of which “recognized that a technical comparison of the elements of the two offenses as required by Block-burger does not protect defendants sufficiently from the burdens of multiple trials.” Grady, — U.S. at-, 110 S.Ct. at 2093, 109 L.Ed.2d at 564. The inquiry begins at the Blockburger test but it does not end there.

As we stated in Jones v. Commonwealth, supra, “the fact that theoretically there are elements in each offense different from the other offense is not sufficient to justify convictions for both.” 756 S.W.2d at 463. To evaluate a double jeopardy claim, this Court does “not ... merely look at the statutes standing alone.” Hamilton v. Commonwealth, Ky., 659 S.W.2d 201, 202 (1983). While there was also proof of speeding and reckless driving, it is clear from the record and the closing argument to the jury that driving under the influence was the critical evidence upon which the Commonwealth relied to prove wanton conduct justifying conviction for criminal homicide, and it was the high degree of intoxication upon which the Commonwealth relied exclusively to prove the “extreme indifference to human life” element of wanton murder. The Commonwealth so stated in closing argument. According to the prosecutor:

“This would be a manslaughter in the second degree charge if he had a .10 blood alcohol or maybe .15, but when you are three times over the legal limit that ... says to the whole world, the whole community I don’t care whether somebody dies, I’m drunk and I’m driving.”

The appellant argues that the holding in Grady v. Corbin barring a subsequent prosecution for criminal homicide after conviction for drunken driving requires us to vacate the criminal homicide prosecution here. But the situation is different when both convictions occur in the same trial. Kentucky cases applying the Double Jeopardy Clause to multiple prosecutions in a single trial when there is in fact a single offense also recognize that the rule when applied to two convictions in the same trial requires only that we vacate the lesser offense. This was the holding in all of the cases which we have cited heretofore, Ingram, Jordan, Jones, and Sherley. Where there is but a single trial, the Double Jeopardy Clause does not foreclose multiple convictions, per se, but only judgments imposing multiple punishments, meaning that the judgment punishing on the lesser charge should be set aside.

“The Commonwealth is permitted to carve out of a single criminal episode the most serious offense, but not to punish a single episode as multiple offenses.” Jones v. Commonwealth, supra, 756 S.W.2d at 468.

Thus we hold the judgment punishing the appellant for driving under the influence (second offense) is the one to be vacated.

Finally, the appellant argues for a new trial claiming the trial court erroneously permitted proof during the guilt phase of the murder trial of a prior drunken driving offense, introduced to prove that he was a subsequent offender. The appellant concedes that this point was not preserved by contemporaneous objection as required by RCr 9.22, but claims he was so prejudiced by the procedure as to constitute denial of due process. We see no basis for this argument, nor do we view it as a palpable error for which a new trial would be a proper remedy for under RCr 10.26.

For the reasons stated, we order the judgment convicting the appellant of driving under the influence (second offense) vacated. The judgment convicting and sentencing the appellant for wanton murder is affirmed.

STEPHENS, C.J., and LAMBERT and VANCE, JJ., concur. LEIBSON and COMBS, JJ., concur, except as stated in the separate concurring opinion. WINTERSHEIMER, J., dissents by separate opinion in which GANT, J., joins.