IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
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RENDERED : MAY 24, 2007
NOT TO BE PUBLISHED
uyrtutt Caurf of
2005-SC-000954-MR
DAVID MCKEE APPELLANT
APPEAL FROM BREATHITT CIRCUIT COURT
V. HON. LARRY MILLER, JUDGE
NO. 05-CR-00043
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
Affirminq
This is a matter of right appeal from a judgment in which appellant
was convicted of Wanton Murder, Fourth-Degree Assault, and Operating a
Vehicle Under the Influence of Alcohol for crashing his car head-on into another
car while drunk. Appellant argues that the trial court erred in allowing the
prosecutor to misstate certain key evidence in his closing argument and that a
potential juror was improperly dismissed for cause . We reject both allegations of
error and thus affirm .
On December 17, 2004, Anthony and Michelle Wenrick, along with
Michelle Wenrick's daughter, Shephanie Moore, traveled from Nicholasville to
Jackson to visit Michelle's brother who was in the hospital . Upon leaving the
hospital that evening, the Wenricks decided to visit Michelle's mother in Morgan
County. The Wenricks allowed Stephanie to ride in a minivan with Michelle's two
nieces and decided to follow the van because her nieces claimed to know the
way. After traveling along Kentucky 30 for some distance, Michelle's niece
pulled over and told the Wenricks that she was lost . The Wenricks had a map so
they decided to take the lead with the van following behind them . The Wenricks
began traveling when Anthony, who was driving, spotted an oncoming vehicle
about a 100 yards away in their lane without its headlights on. Anthony testified
that both cars were traveling approximately 50 mph and that the oncoming
vehicle was traveling nearly in the shoulder of his lane . Anthony attempted to
avoid the car and veer left, but the two vehicles collided head-on. The Wenrick's
Toyota went airborne, flipped and ultimately came to rest on its hood. Anthony
and Michelle were removed from the vehicle with the jaws of life and taken to the
Kentucky River Medical Center in Jackson . Anthony suffered minor injuries.
Michelle was flown to University of Kentucky Medical Center where she later died
of her injuries .
Sergeant Elvis Noble of the Jackson Police Department responded
to the accident at approximately 7 :38 p.m. When Noble arrived on the scene, he
observed a male and a female conversing with each other in an overturned
Toyota. Sergeant Noble testified that he did not request that the state police
perform an accident reconstruction because he did not believe it to be a fatal
accident at the time . While the EMS and the fire department were working to get
the Wenricks out of their vehicle, Sergeant Noble approached the other vehicle.
Upon establishing that the driver, David McKee, was not injured, Sergeant Noble
asked McKee to perform a field sobriety test. McKee failed the test, so he was
arrested . Sergeant Noble thereupon took McKee to the hospital to have a blood
sample taken . McKee's blood alcohol level was determined to be 0.18 grams per
100 milliliter.
McKee was indicted on charges of Wanton Murder, Fourth-Degree
Assault, and Operating a Vehicle Under the Influence of Alcohol . A jury trial was
held on October 12-13, 2005. The defense offered no evidence at trial . McKee
was found guilty on all counts. Thereafter, McKee agreed to a sentence of
twenty (20) years and was ultimately sentenced in accordance with this
agreement . This appeal followed .
McKee's first argument is that the trial court erred in allowing the
prosecution during its closing argument to misstate evidence from the hospital
medical records indicating that Anthony Wenrick was intoxicated on the night of
the wreck . Upon the Commonwealth's motion, the Wenricks' hospital records
were admitted into evidence at trial . In two places in Anthony's records there is a
notation of "acute alcohol intoxication" . In another place in Anthony's records it
states, "Blood alcohol level was 0.4." And a chemical analysis report for Anthony
from the hospital's lab shows a reading of "ALC 0 .4H - 0 mg/d".
During defense counsel's cross-examination of witness Brent
Benning, the Kentucky State Police crime lab toxicology chemist who conducted
the blood alcohol analysis on McKee's blood sample, it was elicited that grams
per 100 milliliter was the universal standard which state forensic labs use to
measure blood alcohol levels . On redirect, the Commonwealth asked Benning if
he knew whether that was the standard that hospitals use to measure blood
alcohol levels. Benning replied that the only other standard he had seen used by
hospitals was milligrams per deciliter, which could easily be converted to grams
per 100 milliliter by dividing the number by 1000.
During McKee's closing argument, defense counsel maintained that
Anthony Wenrick was also driving while intoxicated and could have just as likely
been the cause of the wreck. In attempting to refute this theory of the case, the
prosecutor in his closing argument pointed out that some of Anthony's hospital
records contained an incorrect social security number and also alleged that the
hospital likely used the milligrams per deciliter standard to measure Anthony's
blood alcohol level. The prosecutor then noted that converting the 0.4 milligrams
per deciliter blood alcohol level to a grams per 100 milliliter blood alcohol level
would result in a 0 .004 level, which would be negligible. At this point, defense
counsel objected and a bench conference ensued.
McKee's counsel argued that this was a misstatement of the
evidence because there was no evidence as to how the hospital had in fact
calculated Anthony's blood alcohol level and that the prosecution should not be
able to do the mathematical conversion for the jury. The prosecutor responded
that his assertion was a reasonable inference from the testimony of Brent
Benning that hospitals sometimes use the milligrams per deciliter standard to
measure blood alcohol levels. The trial court overruled McKee's objection and
denied his motion for a mistrial, but instructed the Commonwealth to tell the jury
that they could do their own conversion. The Commonwealth agreed and told
the jury that they were free to do their own conversion .
McKee argues that the trial court erred in allowing the
Commonwealth to speculate in its closing argument about how the Kentucky
River Medical Center measured Anthony's blood alcohol level when there was
absolutely no evidence in the record about which standard the hospital used to
measure Anthony's blood alcohol level . It is McKee's position that this
misstatement of the evidence was prejudicial in this case because the evidence
of Anthony Wenrick's intoxication was central to the issue of causation of the
wreck and the defense theory that Anthony was also driving while intoxicated and
could have been the cause of the wreck.
"It is a well settled principle that matters pertaining to closing
arguments lie within the discretion of the trial court." Hawkins v. Rosenbloom , 17
S.W.3d 116, 120 (Ky.App. 1999) . Prosecutors are permitted wide latitude during
closing arguments and are entitled to draw all reasonable inferences from the
evidence to support any explanation of the evidence that supports a finding of
guilt, as well as respond to matters raised by the defense . Commonwealth v.
Mitchell, 165 S.W.3d 129,132 (Ky. 2005) (citing Lynem v. Commonwealth , 565
S .W.2d 141 (Ky. 1978) and Hunt v. Commonwealth , 466 S.W.2d 957 (Ky. 1971)) ;
Tamme v. Commonwealth , 973 S .W.2d 13, 39 (Ky. 1998) . "However, they may
not argue facts that are not in evidence or reasonably inferable from the
evidence ." Garrett v. Commonwealth , 48 S .W.3d 6,16 (Ky. 2001) .
In the case sub judice, the prosecutor's assertion that Anthony
Wenrick's blood alcohol level was likely computed using the milligrams per
deciliter standard was in direct response to the defense theory that Anthony
Wenrick was intoxicated and was the cause of the accident . We believe the
assertion was a reasonable inference from the hospital records and Brent
Benning's testimony that the hospitals sometimes use that standard . The
hospital's chemical analysis report showing a reading of "ALC 0.4H - 0 mg/d"
indicates that the hospital may have, in fact, used the milligrams per deciliter
standard . And when viewed in light of the following evidence that Anthony was
not intoxicated, the assertion was corroborated by other evidence in the record:
the testimony of Officer Miller, who interviewed Anthony at the hospital after the
wreck, that Anthony did not appear to be under the influence of alcohol ; notations
in the hospital records that Anthony was alert, oriented, cooperative, and his
pupils were normal ; and Anthony's testimony that he had not consumed any
alcohol on the night of the wreck. Accordingly, the trial court did not abuse its
discretion in allowing the prosecutor's statements regarding how the hospital may
have computed Anthony's blood alcohol level.
McKee next argues that the trial court erred when it improperly
excused a juror for cause . The juror in question, David Saint, revealed during
voir dire that defense counsel had represented his father three years ago when
he was being prosecuted in Breathitt County (the same county as the case at
bar) for killing someone while driving his automobile in an intoxicated state . Mr.
Saint recalled accompanying his father to conferences at defense counsel's
office . Mr. Saint stated that he was satisfied with defense counsel's
representation of his father and that he would hire counsel to represent him if he
ever found himself in a similar situation . Although Saint stated that his father's
case would have no bearing on his decision in the present case, when asked if
he would be able to fairly consider the evidence without any bias against the
Commonwealth, Mr. Saint replied, "I won't know til I get there ." The
Commonwealth moved to strike Mr. Saint for cause, arguing that he could not be
impartial due to his father's similar charges and the fact that defense counsel had
represented his father .
A determination whether to excuse a juror for cause lies within the
sound discretion of the trial court and is reviewed only for a clear abuse of
discretion . Soto v. Commonwealth , 139 S.W.3d 827 (Ky. 2004), cert. denied,
544 U.S. 931, 125 S . Ct. 1670, 161 L. Ed . 2d 495 (2005) . "The question of jury
bias is decided by examining whether the challenged juror can be impartial in
light of the particular facts and circumstances connecting the juror to the case to
be tried." Rodriauez v. Commonwealth , 107 S.W .3d 215, 221 (Ky. 2003). "Bias
is implied from any close relationship, familial, financial or situational, with any
party, counsel, victim, or witness, which, though not so close as to cause
automatic disqualification, nevertheless transgresses the concept of a fair and
impartial jury." Sholler v. Commonwealth , 969 S.W.2d 706, 709 (Ky. 1998)
(citation omitted) .
McKee contends that because Mr. Saint was never himself a
former client of defense counsel, it was error for the court to strike him for cause .
We disagree . On the contrary, given the fact that Mr. Saint's father was tried for
the same crime three years earlier, was represented by the same defense
counsel, that Mr. Saint was satisfied enough with his performance that he would
hire him in a similar situation, and, foremost, Mr. Saint's admitted uncertainty on
whether he could be impartial, we believe the court would have abused its
discretion had it not stricken Mr. Saint for cause.
The judgment of the Breathitt Circuit Court is affirmed .
All sitting . All concur.
COUNSEL FOR APPELLANT :
Randall L. Wheeler
Assistant Public Advocate
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APELLEE :
Gregory D. Stumbo
Attorney General
Room 118, Capitol Building
Frankfort, KY 40601
David W. Barr
Assistant Attorney General
Office Of Attorney General
Office Of Criminal Appeals
1024 Capital Center Drive
Frankfort, KY 40601-8204