Opinion
NO. 2012-CA-001948-MR
08-29-2014
BRANDON LEE GRANNIS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Steven J. Buck Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Matthew R. Krygiel Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MASON CIRCUIT COURT HONORABLE STOCKTON B. WOOD, JUDGE
ACTION NO. 11-CR-00179
OPINION
AFFIRMING
BEFORE: LAMBERT, MAZE AND MOORE JUDGES. MAZE, JUDGE: Brandon Grannis appeals from a judgment of conviction by the Mason Circuit Court for Assault in the First Degree, two counts of Wanton Endangerment in the First Degree, and Driving under the Influence of Alcohol (DUI), Second Offense, with an aggravating circumstance. On appeal, Grannis argues that the trial court erred in denying his motion for a directed verdict for the offense of assault in the first degree. Grannis also alleges that the trial court erred in allowing the prosecution to introduce the substance of statements by Grannis which were not disclosed during pretrial discovery. Upon review of the record and law, we find that the trial court correctly denied the motion for directed verdict on the first-degree assault charge. We also find that the trial court did not abuse its discretion in allowing the testimony of witnesses Daniel Barker and Cassie Chaney. Therefore, we affirm.
Background
The underlying facts of this matter not in dispute. On July 9, 2011, at approximately 3:54 am, Grannis, while under the influence of alcohol, rear-ended another vehicle occupied by Kristina Simms, Thomas Thoroughman, and Pearl Dunigan. The accident occurred under foggy conditions near the intersection of Kentucky State Highway 11 and Kentucky State Highway 324 in Mason County. Simms (the driver), and Dunigan (the front seat passenger) were taken to the hospital for treatment. The Lewisburg Volunteer Fire Department used the "jaws of life" to remove Thoroughman, who was trapped in the backseat of the vehicle. Thoroughman suffered severe physical injuries as a result of the motor vehicle accident.
Following the collision, Grannis approached Simms and asked her not to call the police. However, Simms told Grannis that she had no choice but to call the authorities. Simms testified that she could smell alcohol on Grannis. Both Simms and Dunigan allege that Grannis drew his arm back to hit Simms, but ultimately ended up dropping it and walking away.
Daniel Barker and Cassie Chaney were the first to come upon the accident scene. They each testified that Grannis was acting unusual and appeared "highly intoxicated" and "drunk." Grannis approached Barker, asking him for a screwdriver to get his stereo out of his truck. Barker also noted that while he was looking for a screwdriver in the back of his truck, Grannis attempted to get into the driver's seat of the vehicle. Chaney stated that Grannis told them not to call the police on him and believed from his behavior that he was trying to leave the scene.
Deputy Matt Gallenstein, the first law enforcement officer at the accident scene, suspected that Grannis was under the influence of alcohol and placed him in the back seat of his patrol car. Deputy Gallenstein administered field sobriety tests to Grannis, who failed all four tests. At some point Grannis indicated to Deputy Gallenstein that he had been drinking with his father in Fleming County. Consequently, Grannis was arrested for suspicion of driving under the influence and transported to the Mason County Detention Center by Sheriff Patrick Boggs. Sheriff Boggs took a breath sample from Grannis which indicated his blood alcohol content (BAC) level to be .106.
Thereafter, a Mason County grand jury returned an indictment charging Grannis with Assault in the First Degree, two counts of Wanton Endangerment in the First Degree, and Operating a Motor Vehicle Under the Influence of Alcohol or Other Intoxicants - Second Offense with an aggravator. In the trial that followed, the jury found Grannis guilty on all charges. The jury returned a sentence of fifteen years for the first-degree assault, one year for each first-degree wanton endangerment count, and six months for the DUI - Second Offense with an aggravator, to run concurrently for a total sentence of fifteen years. This appeal followed.
Additional facts will be included as necessary to further develop the issues.
Directed Verdict
On appeal, Grannis first argues that he was entitled to a directed verdict for the offense of assault in the first degree. Specifically, he argues that the Commonwealth failed to provide sufficient evidence of wantonness as required by Kentucky Revised Statutes (KRS) 508.010. The Court notes that Grannis was also charged and convicted of two counts of wanton endangerment in the first degree, but has not appealed those charges.
When presented with a motion for directed verdict, the trial court must first draw "all fair and reasonable inferences from the evidence in favor of the Commonwealth." Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). Should this evidence be "sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty," the trial court must deny the directed verdict motion. Id. Additionally, "the prosecution must have more than a mere scintilla of evidence and that it must be evidence of substance." Johnson v. Commonwealth, 885 S.W.2d 951, 953 (Ky. 1994). Moreover, "questions as to the credibility and weight to be given to such testimony" are reserved for the jury. Benham, 816 S.W.2d at 187.
On appeal, this Court's test for a directed verdict is, "if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal." Benham, 816 S.W.2d at 187. Applying this standard, we find that it was reasonable for a jury to find that Grannis acted wantonly and under circumstances manifesting extreme indifference to the value of human life. Thus, we find no error in the trial court's denial of a directed verdict.
With respect to the charge of first-degree assault, the Commonwealth had the burden of providing sufficient evidence demonstrating that "under circumstances manifesting extreme indifference to the value of human life [Grannis] wantonly engage[d] in conduct which create[d] a grave risk of death to another and thereby cause[d] serious physical injury to another person." KRS 508.010(1)(b). The General Assembly has defined wantonly in KRS 501.020(3) as follows:
A person acts wantonly with respect to a result or 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 a risk but is unaware thereof solely by reason of voluntary intoxication also acts wantonly with respect thereto.
Per the mens rea of wanton, "the prosecution must prove that the defendant was aware of the risk and the facts making the risk substantial and unjustifiable. The substantiality of the risk relates to the likelihood of its realization, and unjustifiability refers to whether the reasons for taking the risk are bad ones." Leslie W. Abramson, Kentucky Practice, Substantive Criminal Law, § 2.14 (2013). Voluntary intoxication cannot serve to negate the mens rea of wanton because "[t]he risk which they consciously disregarded occurred when they started drinking." Id. Additionally, "whether wanton conduct demonstrates extreme indifference to human life is a question to be decided by the trier of fact." Brown v. Commonwealth, 975 S.W.2d 922, 924 (Ky. 1998).
Kentucky courts have considered driver impairment, inattentiveness, and evidence of a defendant ignoring the conditions of the road, among other factors of wantonness, in motor vehicle accident cases. See Berryman v. Commonwealth, 237 S.W.3d 175, 178 (Ky. 2007). However, there is no clear-cut checklist of factors. Sluss v. Commonwealth, 381 S.W.3d 215, 220 (Ky. 2012). Instead, "the trial court and the jury must examine the specific facts of each case and make a determination based on the totality of the circumstances." Id. (Internal quotations omitted).
In this case, Grannis indicated to Deputy Gallenstein that he had been drinking with his father in Fleming County. The BAC test results, as well as testimony from witnesses present at the accident scene, demonstrate that Grannis was intoxicated immediately following the accident. In addition to the evidence regarding Grannis's alcohol impairment, the Commonwealth offered evidence at trial demonstrating that the accident occurred at nighttime and under foggy conditions requiring measures to be taken by drivers to account for such conditions.
Furthermore, the severity of the injuries sustained by Thoroughman indicates that Grannis operated his vehicle at a significant speed relative to road conditions. The jury was also free to accept an inference of inattentiveness on the part of Grannis from the Commonwealth's evidence of Grannis's recorded phone calls from jail (whereby he stated that he had a habit of not keeping his "eyes glued," and that there was "no one on State").
Given the above, we find that the evidence presented by the Commonwealth, was sufficient for a reasonable juror to conclude that Grannis consciously disregarded a substantial and unjustifiable risk of causing harm to others when he chose to drive while intoxicated and under difficult driving conditions. Whether this conduct manifested an extreme indifference to the value of human life was up to the trier of fact. As such, the trial court did not err in denying the directed verdict motion.
Evidentiary Ruling
Grannis also argues on appeal that the trial court erred in allowing the Commonwealth to introduce the substance of statements made by Grannis which were not disclosed during the pretrial discovery process. With respect to the testimony of Daniel Barker and Cassie Chaney, Grannis asserts that there was a violation of the parties' pretrial discovery order under Kentucky Rules of Criminal Procedure (RCr) 7.24. Specifically, Grannis argues that the trial court erred in denying his motion to exclude testimony from these witnesses regarding statements he made at the accident scene.
The standard of review on evidentiary rulings is abuse of discretion. Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007). Moreover, as "the trial court's unique role as a gatekeeper of evidence requires on-the-spot rulings on the admissibility of evidence, we may reverse a trial court's decision to admit evidence only if that decision represents an abuse of discretion." Id. There is an abuse of discretion only if the trial court's decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Id., citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Without a "flagrant miscarriage of justice, the trial court will be affirmed." Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983).
Grannis argues that the failure of the Commonwealth to disclose Grannis's incriminating oral statements during discovery constitutes a violation of RCr 7.24, which requires disclosure of "any oral incriminating statement known by the attorney for the Commonwealth to have been made by a defendant to any witness." RCr 7.24(1). The underlying purpose of RCr 7.24(1) is twofold:
[it] is not only to inform the defendant that he has made these statements, as he should be clearly aware, but rather to inform the defendant (and to make sure his counsel knows) that the Commonwealth is aware that he has made these statements. This ensures that the defendant's counsel is capable of putting on an effective defense, as per the intent of the rule.Chestnut v. Commonwealth, 250 S.W.3d 288, 297 (Ky. 2008)(internal citations omitted).
On the first day of trial, the Commonwealth called its third and fourth witnesses, Daniel Barker and his fiancée, Cassie Chaney. The Commonwealth explained to defense counsel and the trial court that although they had been under subpoena since May, the couple had not been located until the morning of the trial. With respect to Barker's testimony, defense counsel moved to exclude testimony regarding statements made by Grannis because they had not been provided in discovery. The Commonwealth stated that it did not believe Barker would be testifying about any statements made by Grannis. Instead, Barker would be testifying as to his observations of Grannis and his level of intoxication at the scene of the accident. The Commonwealth did note an exception regarding a statement made by Grannis when he asked Barker for a screwdriver. However, the substance of this statement was located in Deputy Gallenstein's report, which was provided in discovery. The court then remarked that the statement would be admissible if it was referred to in the report.
The only other statement testified to by Barker came about when he was asked by the Commonwealth to explain how Grannis was acting towards him the night of the accident. In response, Barker stated that while his fiancée was on the phone, Grannis made threats "about calling the police and things of that nature." Defense counsel objected. However, the court stated that it would "allow that much," as Grannis already had notice that he had made similar (if not identical) statements to other witnesses. Moreover, because he already had the opportunity to prepare his defense accordingly, the purpose of RCr 7.24(1) was not undermined.
Even if the Court had found the testimony to be impermissible, its admission would have constituted a harmless error because it was cumulative of other testimony. See Torrence v. Commonwealth, 269 S.W.3d 842, 846 (Ky. 2008). Both Simms and Dunigan testified to Grannis making similar statements. Specifically, they noted that as Grannis approached their vehicle, he asked Simms not to call the authorities on him. Thus, Barker's testimony had no prejudicial effect on his defense because it was cumulative of other witnesses' testimony.
With respect to Grannis's argument regarding the testimony of Cassie Chaney, it does not appear to be preserved by a contemporaneous objection. RCr 9.22. But even if the issue is preserved, the substance of the statements testified to by Chaney was comparable to the testimony of Barker, Simms and Dunnigan. (Specifically, Chaney testified that Mr. Grannis repeatedly told them, "Don't call the cops on me. Don't call the cops on me.") Therefore, for the same reasons stated above, the court did not abuse its discretion in allowing Chaney's testimony.
As there was neither abuse of discretion in allowing the testimony of Barker and Chaney, nor error on the part of the trial court in denying the directed verdict, the judgment of the Mason Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Steven J. Buck
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Matthew R. Krygiel
Assistant Attorney General
Frankfort, Kentucky