Opinion
NO. 2016-CA-000718-MR
03-09-2018
BRIAN P. EPPERSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: David M. Ward Winchester, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Julie Scott Jernigan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM POWELL CIRCUIT COURT
HONORABLE FRANK ALLEN FLETCHER, JUDGE
ACTION NO. 12-CR-00052 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; CLAYTON AND THOMPSON, JUDGES. THOMPSON, JUDGE: Brian P. Epperson appeals from a judgment of the Powell Circuit Court entered after a jury found him guilty of second-degree manslaughter and fourth-degree assault. Epperson was sentenced to seven-years' imprisonment for the felony and a $500 fine was imposed for the misdemeanor assault. He alleges the following: (1) the trial court erred when it did not instruct the jury on reckless driving as a lesser-included offense of manslaughter and reckless homicide; (2) the trial court erred when it did not declare a mistrial after the jury sent a note to the trial court asking if Epperson served time in jail or prison for the offenses; (3) the trial court erred when it did not prohibit the laboratory analysis of Epperson's blood from being introduced into evidence; and (4) cumulative error. We conclude that an instruction on reckless driving was not required where it was undisputed that the victim died after the vehicle Epperson operated struck a vehicle operated by the victim. We further conclude that a mistrial and the admissibility of Epperson's blood analysis were decided in Epperson's prior appeal. Having concluded there was no error, there can be no cumulative error.
Epperson does not seek reversal of his misdemeanor assault conviction.
The following facts are undisputed. On November 14, 2011, the vehicle Epperson was driving crossed the centerline of a two-lane road in Powell County and collided with a vehicle occupied by Donald Tharp and a female passenger. As a result, Tharp died, and his passenger was injured. Epperson submitted to field sobriety tests as well as blood and urine testing in the hours following the accident.
In his first trial, Epperson was found guilty of second-degree manslaughter, fourth-degree assault, and DUI, first offense. The trial court ordered a sentence of six years and imposed a $1,000 fine. He appealed resulting in this Court's opinion in Epperson v. Commonwealth, 437 S.W.3d 157 (Ky.App. 2014).
In his first appeal, Epperson argued: (1) the trial court abused its discretion when it denied his motion for a continuance after the Commonwealth amended the indictment on the first day of trial; (2) the trial court abused its discretion in failing to suppress Epperson's blood test analysis based on errors committed by the testing laboratory including the staleness of the test kit and that his samples sat in the test instrument four days prior to being tested; (3) Kentucky's DUI statute violates equal protection; and (4) cumulative error. Id. at 159-60. This Court reversed, holding that the failure to grant a continuance was an abuse of discretion. Id. at 163. However, after a lengthy discussion, this Court rejected Epperson's argument that errors committed by the laboratory which tested his blood sample rendered the results and any expert testimony referencing those results unreliable under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). This Court held that the errors committed by the laboratory went to the weight of the evidence and not its admissibility. Epperson, 437 S.W.3d at 165. The results and expert testimony regarding those results were held to be admissible should Epperson be retried. Id. After his retrial and conviction, Epperson filed the present appeal.
This Court also rejected Epperson's constitutional claim and, because the case was remanded, did not address his cumulative error argument. --------
Epperson tendered jury instructions that included reckless homicide and reckless driving, a misdemeanor, as lesser-included offenses of manslaughter, second-degree. The parties agreed that reckless homicide was a lesser-included offense and the jury was so instructed. However, the Commonwealth objected to the reckless driving instruction and the trial court ultimately concluded that the instruction was not appropriate.
Epperson's argument that he was entitled to lesser-included offense instruction on reckless driving is purely a question of law subject to de novo review. Lackey v. Commonwealth, 468 S.W.3d 348, 355 (Ky. 2015). As a matter of law, Epperson had "a right to have every issue of fact raised by the evidence and material to the defense submitted to the jury on proper instructions[,]" including lesser-included offenses. Allen v. Commonwealth, 338 S.W.3d 252, 255 (Ky. 2011).
"The definition of a 'lesser-included offense' is drawn from [Kentucky Revised Statutes] KRS 505.020(2)[.]" Fields v. Commonwealth, 219 S.W.3d 742, 749 (Ky. 2007). That statute states:
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:
Based on the statutory wording, Kentucky case law regarding lesser-included offenses focuses on whether a reasonable juror could find a lesser offense is included in a greater offense.(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
(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.
"Although a lesser included offense is not a defense within the technical meaning of those terms as used in the penal code, it is, in fact and principle, a defense against the higher charge." Slaven v. Commonwealth, 962 S.W.2d 845, 856 (Ky. 1997). However, an instruction not supported by the evidence is not required. The often-recited rule is that "[a]n instruction on a lesser included offense is appropriate if, and only if, on the given evidence a reasonable juror could entertain a reasonable doubt of the defendant's guilt on the greater charge but believe beyond a reasonable doubt that the defendant is guilty of the lesser offense." Osborne v. Commonwealth, 43 S.W.3d 234, 244 (Ky. 2001). On review, the appellate court also applies a "reasonable juror" analysis. "Considering the evidence favorably to the proponent of the instruction, we ask . . . whether a reasonable juror could acquit of the greater charge but convict of the lesser." Allen, 338 S.W.3d at 255.
The "reasonable juror" standard was the basis for our Supreme Court's opinion in Jenkins v. Commonwealth, 496 S.W.3d 435 (Ky. 2016), where the Court considered whether to adopt the reasoning of the United State Supreme Court in Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965), and its interpretation of Federal Rule of Criminal Procedure 31(c)(1), which provides that a defendant may be found guilty of "an offense necessarily included in the offense charged[.]" The gist of the United States Supreme Court's holding is that if the element of the greater offense which distinguishes it from the lesser offense is undisputed, the jury could not rationally find the defendant guilty on the lesser offense and not guilty on the greater offense. The Sansone Court held:
[T]he lesser offense must be included within but not, on the facts of the case, be completely encompassed by the greater. A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense.Sansone, 380 U.S. at 350, 85 S.Ct. at 1009.
In Jenkins, our Supreme Court observed that Kentucky "has never had cause to adopt Sansone[.]" Jenkins 496 S.W.3d at 454. However, it found the United States Supreme Court's decision to be consistent with Kentucky precedent that "a lesser included offense is required only if, considering the totality of the evidence, the jury might have a reasonable doubt as to the defendant's guilt of the greater offense, and yet believe beyond a reasonable doubt that the defendant is guilty of the lesser offense." Id. (quoting Caudill v. Commonwealth, 120 S.W.3d 635, 668 (Ky. 2004)). The reasoning of Sansone and Jenkins dispels any notion that Epperson was entitled to an instruction on reckless driving as a lesser-included offense.
Three criminal statutes are relevant to our inquiry. KRS 507.040 provides: "A person is guilty of manslaughter in the second degree when he wantonly causes the death of another person, including, but not limited to, situations where the death results from the person's: (a) Operation of a motor vehicle[.]" KRS 507.050 provides: "A person is guilty of reckless homicide when, with recklessness he causes the death of another person." The final statute, and that upon which Epperson requested a lesser- included reckless driving instruction provides that "[t]he operator of any vehicle upon a highway shall operate the vehicle in a careful manner, with regard for the safety and convenience of pedestrians and other vehicles upon the highway." KRS 189.290.
A reiteration of the holding in Sansone proves Epperson's theory to be without merit. "A lesser-included offense instruction is only proper where the charged greater offense required the jury to find a disputed factual element which not required for conviction of the lesser-included offense." Sansone, 380 U.S. at 350, 85 S.Ct. 1009. The distinguishing element of the greater offenses in this case is the death of a victim. There is no dispute that the victim, Tharpe, died. Consequently, no rational jury could find that Epperson was guilty of reckless driving but not reckless homicide. Therefore, Epperson was not entitled to a reckless driving instruction.
Prior to the second trial, Epperson's counsel filed a motion seeking to exclude any mention of the first trial and requesting that jurors with knowledge of the prior trial be excluded. The motion was granted. However, during its deliberations, the jury sent a note to the trial court asking: "Has Mr. Epperson spent any time in jail or prison for this offense already? If so, how long has he served? If so, if we give him the minimum sentence will he already be eligible for parole or/will be soon?" Epperson argues that at this point, the trial court was required to declare a mistrial because the question suggested one, some or all the jurors had knowledge that Epperson had been previously convicted and served time on the charges.
Epperson does not cite to the record where he preserved this issue for review as required by Kentucky Rules of Civil Procedure 76.12(4)(c)(v). Even if preserved, his argument is unpersuasive.
A mistrial is a remedy reserved only when there "is a serious error such that a mistrial is a manifest or urgent necessity." Parker v. Commonwealth, 241 S.W.3d 805, 808 (Ky. 2007). There is no evidence that the jury's question was based on knowledge of Epperson's prior trial and conviction. Voir dire was conducted as to any potential juror's knowledge of the case, including Epperson's conviction and reversal of that conviction, and those with such knowledge were excused. There is no evidence that any juror gave false answers to the court or counsel's questions, and Epperson does not cite to any place in the record where his prior conviction was mentioned. The most logical reason for the question is that Epperson called a deputy jailer from the Powell County Detention Center and questioned him about Epperson's medication, physical condition and behavior while an inmate at the facility shortly after the crash.
Despite this Court's prior ruling, Epperson also filed a motion to suppress his blood analysis based on reliability of the test kit and errors committed by the testing laboratory. Relying on this Court's prior opinion, the trial court denied the motion to suppress. Epperson rehashes the same argument previously decided by this Court. For that reason, we decline further discussion of the issue.
We reject Epperson's claimed errors. Consequently, there can be no cumulative error.
Based on the forgoing, the judgment of the Powell Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: David M. Ward
Winchester, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Julie Scott Jernigan
Assistant Attorney General
Frankfort, Kentucky