RENDERED: OCTOBER 29, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2018-CA-1691-MR
ANTONIO PEREZ LOPEZ APPELLANT
ON REMAND FROM THE KENTUCKY SUPREME COURT
(FILE NO. 2019-SC-0717)
APPEAL FROM KNOX CIRCUIT COURT
v. HONORABLE GREGORY A. LAY, JUDGE
ACTION NO. 18-CR-00065
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, TAYLOR, AND K. THOMPSON, JUDGES.
GOODWINE, JUDGE: This case is before us on remand from the Kentucky
Supreme Court for reconsideration after Commonwealth v. McCarthy, 628 S.W.3d
18 (Ky. 2021).
Antonio Perez Lopez (“Lopez”) appeals a judgment and sentence of
the Knox Circuit Court convicting him of one count of first-degree assault, one
count of second-degree assault, leaving the scene of an accident, and driving under
the influence of alcohol. Lopez was sentenced to a total of thirteen years of
imprisonment. After careful review, we affirm.
BACKGROUND
On January 20, 2018, Lopez’s vehicle crossed the centerline of Route
11 in Knox County and collided with a vehicle driven by Tiffany Cummins
(“Tiffany”). Riding with Tiffany was her husband Chad Cummins (“Chad”). Both
suffered physical injuries from the accident. A Knox County grand jury indicted
Lopez on two counts of first-degree assault, leaving the scene of an accident, and
operating a motor vehicle under the influence of intoxicants, third offense. He pled
not guilty. Prior to trial, Lopez filed a motion to suppress challenging the
admissibility of his refusal to consent to a blood test. The trial court denied the
motion.
At trial, Tiffany testified that immediately before the impact, she saw
headlights quickly approaching her vehicle. Lopez testified the Cummins’s vehicle
had its high beams on as it came toward him, which caused him to lose control of
his vehicle. He acknowledged drinking two beers before driving that night and
stated he was driving fifty-five miles per hour at the time of the accident.
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Deputy Andrew Lawson was the first officer on the scene. He
testified Lopez left the scene of the accident on foot. When Lopez was brought
back to the scene, he refused to perform field sobriety tests. Lopez denied being
drunk, instead testifying that he felt drunk because he had been in a wreck. Deputy
Lawson testified Lopez was unsteady on his feet. He arrested Lopez and took him
to the hospital for a blood test. Deputy Lawson read Lopez the implied consent
form and informed him of his right to contact an attorney. Lopez unsuccessfully
attempted to contact an attorney and refused to consent to a blood draw. Due to his
refusal, his blood was not drawn. Lopez testified, denying that he refused to take
the blood test and that he was ever taken to the hospital.
Following testimony and arguments of counsel, the trial court
instructed the jury on first-degree assault1 and second-degree assault2 for Tiffany’s
injuries; first-degree assault, second-degree assault, and fourth-degree assault3 for
Chad’s injuries; leaving the scene of an accident; 4 and driving under the influence
of alcohol (“DUI”).5 The jury found Lopez guilty of one count of first-degree
1
Kentucky Revised Statutes (KRS) 508.010(1)(b) (Class B felony).
2
KRS 508.020(1)(c) (Class C Felony).
3
KRS 508.030 (Class A Misdemeanor).
4
KRS 189.580.
5
KRS 189A.010.
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assault for Tiffany’s injuries, one count of second-degree assault for Chad’s
injuries, leaving the scene of an accident, and DUI, third offense.6
The jury recommended thirteen years on one count of first-degree
assault, eight years on one count of second-degree assault, five years for leaving
the scene of an accident, and twelve months for DUI, third offense, with all counts,
except the DUI, to run concurrently. The jury recommended that the twelve-month
sentence on the DUI run consecutively for fourteen years. However, the trial court
sentenced Lopez to thirteen years, running all counts concurrently. This appeal
followed.
ANALYSIS
I. EVIDENCE OF LOPEZ’S REFUSAL TO SUBMIT TO A BLOOD
TEST WAS IMPROPERLY ADMITTED.
First, Lopez argues the trial court erred in denying his motion to
suppress evidence of his refusal to consent to a warrantless blood draw as evidence
of his guilt. “Our analysis of trial court rulings on suppression motions involves a
two-stage review, using a clear error standard for factual findings and a de
novo standard for legal conclusions.” Commonwealth v. Brown, 560 S.W.3d 873,
876 (Ky. App. 2018) (citations omitted).
Below, Lopez urged the trial court to find he had a Fourth
Amendment right to refuse to submit to a blood test without a warrant under
6
KRS 189A.010(5)(c).
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Birchfield v. North Dakota, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016). Lopez
argued that because the officer needed a warrant to conduct a blood test, his refusal
to undergo such an examination is protected under the Fourth Amendment. We
agree. In Birchfield, the Supreme Court of the United States addressed the
constitutionality of North Dakota’s implied consent statute which “impose[d]
penalties on motorists who refuse[d] to undergo testing when there is sufficient
reason to believe they are violating the State’s drunk-driving laws.” Id. at 2166.
The Supreme Court held “reasonableness is always the touchstone of Fourth
Amendment analysis[.] . . . And applying this standard, we conclude that motorists
cannot be deemed to have consented to submit to a blood test on pain of
committing a criminal offense.” Id. at 2186 (citation omitted).
In McCarthy, our Supreme Court recently held that under Birchfield, a
defendant’s refusal to submit to a blood test could not be used to enhance his
criminal penalty for DUI, and under controlling precedent could not be used as
evidence that he was guilty of DUI. McCarthy, 628 S.W.3d 18. Accordingly, the
trial court erred in admitting evidence of Lopez’s refusal to consent. However, the
error was harmless for two reasons: (1) there was other evidence of Lopez’s
intoxication; and (2) the twelve-month sentence imposed on the DUI conviction
was run concurrently with the thirteen-year sentence imposed on the felony
convictions.
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In both McCarthy and the case before us, the defendant was
transported to a hospital for a blood test and the defendant refused the test and,
then later, filed a motion to exclude the introduction of his refusal to take a
warrantless blood test in reliance on Birchfield. In McCarthy, the trial court
prohibited the Commonwealth from using the defendant’s refusal as evidence of
intoxication or as an aggravating circumstance but did permit the Commonwealth
to use the fact of his refusal to explain why there were no test results and
prohibited the defendant from asking the officer why he did not obtain a warrant
for a blood test. In the case before us, the trial court allowed the Commonwealth
to use Lopez’s refusal of consent against him as evidence of guilt.
Lopez’s constitutional rights were violated by allowing the
introduction of evidence that he refused consent where he had an absolute right to
refuse a warrantless search and seizure of his blood.7 Thus, a legal error occurred,
and the only remaining question is whether it was harmful.
In McCarthy, there was strong evidence that the defendant was not
intoxicated where three witnesses testified they had been out with the defendant all
evening and did not see him drink any alcohol, the officer testified he stopped the
7
Birchfield has not eliminated the effectiveness of Commonwealth v. Hager, 702 S.W.2d 431
(Ky. 1986), and KRS 189A.105(2)(a)1. in other circumstances. Both continue to be good law in
allowing a refusal to take a breath or urine test incident to a DUI arrest to be commented upon,
because in those circumstances as long as there is probable cause the defendant has no
constitutional right to refuse.
.
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defendant because he swerved, the defendant told the officer he swerved because
he was distracted by talking to his passengers, the video of the stop was far from
conclusive in showing intoxication and the defendant’s previous trial had ended in
a mistrial.
In contrast, here there was overwhelming evidence of guilt to support
Lopez’s convictions. Deputy Lawson testified about Lopez’s admissions at the
scene (that he was too drunk to complete the field sobriety tests) and his
observations that Lopez smelled of alcohol and was unsteady on his feet. There
was also testimony by the Cumminses that Lopez’s vehicle crossed the centerline
and entered their lane at a high rate of speed before their collision, causing the
accident which trapped Tiffany inside her vehicle and critically injured her.
The testimony from Deputy Lawson regarding his request for a
consensual blood draw consisted of him testifying about taking Lopez to the
hospital for a blood draw, reading him the implied consent form and explaining
that Lopez had a right to refuse consent to a blood draw and had a right to contact
an attorney before submitting to the blood draw, and Lopez’s unsuccessful attempt
to contact an attorney.
Lopez, unlike the defendant in McCarthy, chose to testify in his own
defense. This is important in the consideration as to whether the error was
harmless because when a defendant testifies he thereby “cast[s] aside his cloak of
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silence” and opens himself up to the truth-telling function of the adversarial
process, making it permissible to use the defendant’s pre-arrest silence for
impeachment purposes. Jenkins v. Anderson, 447 U.S. 231, 238, 100 S. Ct. 2124,
2129, 65 L. Ed. 2d 86 (1980). At least some of the evidence regarding Lopez’s
refusal to consent to the blood test could potentially have been admissible on
rebuttal to impeach his testimony.8 See Coulthard v. Commonwealth, 230 S.W.3d
572, 583 (Ky. 2007). Lopez also had the opportunity to explain his actions, which
could lessen the impact of the refusal.9 When considering these factors, the
violation of Lopez’s constitutional rights was harmless and does not warrant
reversal.
II. THE TRIAL COURT DID NOT PALPABLY ERR IN ADMITTING
EVIDENCE AND THE COMMONWEALTH DID NOT ENGAGE
IN FLAGRANT MISCONDUCT.
Second, Lopez argues the Commonwealth introduced and repeatedly
referenced improper evidence, misrepresented evidence, and made prejudicial
references to evidence not in the record. He concedes each of the issues raised are
8
While Lopez would not have any reason to testify that he was not asked to consent to a blood
draw and was not taken to the hospital had Deputy Lawson not already testified about the
circumstances of his refusal, there were other portions of his testimony that were not prompted
by Deputy Lawson’s testimony which could have been impeached. For example, Lopez testified
that he left the scene of the accident to get help because his cell phone battery was dying, which
could have been impeached through Deputy Lawson’s testifying that Lopez gave the deputy his
cell phone to contact an attorney and that the phone worked properly.
9
Here, Lopez did not explain his refusal. Instead, he denied he was taken to the hospital and
denied he refused to take the blood test. It is noteworthy that Lopez may have decided not to
testify at all had his motion to suppress been granted.
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unpreserved, except for references to his refusal to submit to a blood draw, and
requests review for palpable error under Kentucky Rules of Criminal Procedure
(RCr) 10.26. “When we engage in palpable error review, our ‘focus is on what
happened and whether the defect is so manifest, fundamental and unambiguous
that it threatens the integrity of the judicial process.’” Tackett v. Commonwealth,
445 S.W.3d 20, 26 (Ky. 2014) (quoting Baumia v. Commonwealth, 402 S.W.3d
530, 542 (Ky. 2013)). “[T]he required showing is probability of a different result
or error so fundamental as to threaten a defendant’s entitlement to due process of
law.” Baumia, 402 S.W.3d at 542 (quoting Martin v. Commonwealth, 207 S.W.3d
1, 3 (Ky. 2006)).
Lopez’s argument contains three subparts. First, he argues the
Commonwealth introduced improper evidence when it elicited testimony and made
comments during closing argument regarding Lopez’s attempts to contact an
attorney and his refusal to submit to a blood draw and commented on Lopez’s
post-arrest silence during closing argument. Second, Lopez argues the
Commonwealth improperly introduced and commented on his immigration status.
Third, Lopez argues the Commonwealth’s assertion during closing argument that
he was driving faster than fifty-five miles per hour is unsupported by any evidence.
Before addressing Lopez’s arguments, we pause to note that Lopez
characterizes these issues as prosecutorial misconduct. However, many of them
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are evidentiary issues. “[D]espite the trend to classify many unpreserved issues as
prosecutorial misconduct, such actually only occurs when a conviction is obtained
by the knowing use of false evidence.” Stopher v. Commonwealth, 57 S.W.3d 787,
806 (Ky. 2001) (citing Davis v. Commonwealth, 967 S.W.2d 574, 579 (Ky. 1998)).
Lopez argues the Commonwealth improperly introduced evidence of
and commented on privileged conduct as proof of his guilt. First, because we held
Lopez’s refusal to consent to a warrantless blood draw was admissible as evidence
of his guilt, the Commonwealth did not commit prosecutorial misconduct when it
made comments about this fact during closing argument. Lopez also argues that
introduction of evidence and comments during closing argument regarding
invocation of his right to an attorney and statements during closing argument
regarding his silence violated his right to due process.
During the Commonwealth’s cross-examination, Lopez explained
what happened following the accident, testifying that after the collision, he began
walking down the road to ask for help. He did not attempt to call anyone because
his cellphone was dying. After Lopez’s arrest, Deputy Lawson read the implied
consent form and gave Lopez an opportunity to call an attorney. Lopez turned his
cellphone on and attempted to contact an attorney.
To invoke the right to counsel, a “suspect [must] clearly and
unambiguously assert[] his or her right[.]” Bradley v. Commonwealth, 327 S.W.3d
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512, 516 (Ky. 2010) (citations omitted). It is unclear whether Lopez’s attempt to
contact an attorney meets this standard. Assuming Lopez invoked his right to
counsel, we apply a three-prong test to determine whether references to Lopez’s
attempt to contact an attorney was harmless error. We weigh “(1) the extent of
comments made by the witness, (2) whether an inference of guilt from silence [or
right to counsel] was stressed to the jury, and (3) the extent of other evidence
suggesting the defendant’s guilt.” Baumia, 402 S.W.3d at 539 (quoting United
States v. Velarde-Gomez, 269 F.3d 1023, 1034 (9th Cir. 2001)).
First, Deputy Lawson and Lopez were both questioned regarding
Lopez’s attempt to contact an attorney, but the comments were relatively brief.
Second, the Commonwealth did not use Lopez’s attempt to contact an attorney as
evidence of his guilt. The purpose of this line of questioning was to impeach
Lopez’s testimony that he had to walk to find help because his phone was dying.
The Commonwealth’s inference was that Lopez was guilty of leaving the scene of
the accident because he could have called for help, not that he was guilty because
of his attempt to invoke his right to counsel. Third, Lopez’s argument under this
prong only references evidence of his intoxication even though this issue applies to
leaving the scene of the accident. There was clearly other evidence of Lopez’s
intoxication. Deputy Lawson testified that Lopez said he was too drunk to perform
field sobriety tests. As to leaving the scene of the accident Lopez does not dispute
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that he walked away from the accident. Whether he walked away to find help or
was guilty of the offense would be less clear without this piece of evidence.
Considering these three factors, the second weighs heavily in favor of harmless
error. This issue is unpreserved, and Lopez did not show that the outcome of his
trial would have differed without this evidence.
Next, we address Lopez’s argument that the Commonwealth
improperly commented on his post-arrest silence during closing argument.
Nothing in the record indicates Lopez ever invoked his right to remain silent.
During closing argument, the Commonwealth told the jury Lopez never told law
enforcement that the victims had their high beams on when the accident occurred
or that he consumed two beers that night. Lopez argues it was his constitutional
right to remain silent and not provide these statements to law enforcement. The
Commonwealth never elicited testimony regarding Lopez’s silence as an inference
of his guilt. “In his closing remarks, a prosecutor may draw all reasonable
inferences from the evidence and propound his explanation of the evidence and
why it supports a finding of guilt.” Tamme v. Commonwealth, 973 S.W.2d 13, 39
(Ky. 1998) (citing Bills v. Commonwealth, 851 S.W.2d 466 (Ky. 1993)).
The Commonwealth compared Deputy Lawson’s and Lopez’s
testimony to show the inconsistencies in Lopez’s comments to law enforcement
immediately after the accident and his testimony at trial. The Commonwealth
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never inferred Lopez was guilty because of his silence. Instead it inferred Lopez
was an untrustworthy witness, which was a reasonable inference based on the
evidence presented.
Second, Lopez argues the Commonwealth improperly introduced
evidence of and commented on his immigration status. He asserts the “probative
value is substantially outweighed by the danger of undue prejudice” under
Kentucky Rules of Evidence (KRE) 403. During voir dire, the Commonwealth
asked potential jurors whether they would hold Lopez’s immigration status against
him. (Video Record (VR) 10/2/18 at 10:49:42.) There was no objection, and no
potential juror answered affirmatively. Lopez’s counsel then told prospective
jurors that he was a “citizen of Mexico” and asked if anyone would hold it against
him. (Id. at 11:01:32.) No juror responded affirmatively. During trial, counsel
asked several questions regarding Lopez’s understanding of English, including
how long he had been in Knox County. (Id. at 1:29:12.) During the closing
arguments of the penalty phase, counsel argued for leniency by telling the jury
Lopez would most likely be deported and, therefore, a lesser sentence was
warranted. (Id. at 7:03:07-7:05:33.) In response, the Commonwealth argued
against the minimum sentence because the fact that he might be deported should
not matter. (Id. at 7:06:09.) Lopez never raised any objection to such comments,
and his brief does not show how exclusion of such comments would have yielded a
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different result or that the error was so fundamental that his right to due process
was violated. Baumia, 402 S.W.3d at 542 (citation omitted). He faced twenty
years in prison. The jury recommended a total of thirteen years in prison.
Third, Lopez argues the Commonwealth’s assertion during closing
argument that he was driving faster than fifty-five miles per hour is unsupported by
any evidence. “We will reverse for prosecutorial misconduct only if the
misconduct was ‘flagrant’ or if we find all of the following to be true: (1) the
proof of guilt is not overwhelming, (2) a contemporaneous objection was made,
and (3) the trial court failed to cure the misconduct with a sufficient admonition.”
Dickerson v. Commonwealth, 485 S.W.3d 310, 329 (Ky. 2016) (citing Mayo v.
Commonwealth, 322 S.W.3d 41, 55 (Ky. 2010)).
Lopez concedes he did not object to this alleged instance of
misconduct. Because Lopez did not contemporaneously object to the comments,
we must determine whether the Commonwealth’s conduct was “flagrant.” “We
use the following four-factor test to determine whether a prosecutor’s improper
comments constitute reversible flagrant misconduct: ‘(1) whether the remarks
tended to mislead the jury or to prejudice the accused; (2) whether they were
isolated or extensive; (3) whether they were deliberately or accidentally placed
before the jury; and (4) the strength of the evidence against the accused.’”
Dickerson, 485 S.W.3d at 329 (citations omitted).
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During closing argument, the Commonwealth argued Lopez’s vehicle
was traveling faster than fifty-five miles per hour and faster than the victims’
vehicle. Tiffany was the only witness who testified regarding Lopez’s speed. She
testified she was driving between forty-five and fifty miles per hour because the
road “was scary.” (VR 10/2/18 at 1:35:49-1:36:00.) She said Lopez’s vehicle was
traveling “really fast.” (Id. at 1:36:55-1:37:00.) The Commonwealth argued, based
on her testimony and the crime scene photos, that Lopez must have been traveling
faster than the Cumminses because his vehicle pushed theirs off the road.
If this was misconduct, it was not flagrant. First, the comments on
Lopez’s speed were not misleading. The Commonwealth never commented on
Lopez’s precise speed and merely argued that the evidence presented indicated
Lopez was driving faster than Tiffany. Second, the comments were isolated as the
Commonwealth discussed speed for less than a minute during closing argument.
Most of the Commonwealth’s closing argument regarding the wantonness of
Lopez’s conduct focused on his intoxication instead of his speed. Third, the
Commonwealth deliberately made the comments to the jury. Fourth, there was
other evidence that Lopez acted wantonly in injuring Tiffany and Chad because he
was driving while intoxicated and crossed the centerline. Furthermore, the
Commonwealth may make reasonable inferences from the evidence during closing
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argument. Tamme, 973 S.W.2d at 39. Considering each of the four factors, if the
Commonwealth engaged in misconduct, it was not flagrant.
III. LOPEZ WAS NOT DENIED HIS RIGHT TO A UNANIMOUS
VERDICT.
Third, Lopez argues the jury instructions on first-degree assault and
second-degree assault did not ensure unanimity because the instructions failed to
identify Lopez’s wanton conduct. He asserts the instructions should have specified
whether Lopez acted wantonly by driving while intoxicated, speeding, or driving
on the wrong side of the road. Lopez concedes this argument is unpreserved and
requests review for palpable error under RCr 10.26.
The Supreme Court of Kentucky has held that describing specific
theories of wanton conduct in jury instructions is unnecessary. Cox v.
Commonwealth, 553 S.W.3d 808, 812 (Ky. 2018).
A “combination” instruction permitting a conviction of
the same offense under either of multiple alternative
theories does not deprive a defendant of his right to a
unanimous verdict, so long as there is evidence to
support a conviction under either theory. “It is not
necessary that a jury, in order to find a verdict should
concur in a single view of the transaction disclosed by
the evidence. If the conclusion may be justified upon
either of two interpretations of the evidence, the verdict
cannot be impeached by showing that a part of the jury
proceeded upon one interpretation and part upon the
other . . . .”
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Id. (footnotes omitted). Here, the trial court instructed the jury on first-degree
assault, second-degree assault, and fourth-degree assault. Each of these
instructions required a finding that Lopez acted wantonly. The Commonwealth
presented evidence to support three theories of wantonness: (1) that Lopez was
intoxicated, (2) crossed the centerline of the road, and (3) that his vehicle was
traveling faster than the victims’ vehicle. As such, because there was evidence to
support each of the theories of wantonness, Lopez was not deprived of his right to
a unanimous verdict.
IV. THE JURY INSTRUCTIONS DID NOT CONTAIN A DOUBLE
JEOPARDY VIOLATION.
Finally, Lopez argues the instructions for assault and driving under
the influence resulted in a double jeopardy violation. He asserts that the
instructions allowed the jury to find him guilty of two different crimes for the same
act because the assault instruction merely asked the jury to find that the same
conduct manifested extreme indifference to the value of human life. Lopez
concedes this argument is unpreserved but argues “the constitutional protection
against double jeopardy is not waived by failing to object at the trial level.” Little
v. Commonwealth, 422 S.W.3d 238, 248 (Ky. 2013) (citation omitted).
“[T]he DUI statute does not preclude a conviction for First-Degree
Assault.” Justice v. Commonwealth, 987 S.W.2d 306, 312 (Ky. 1998) (citation
omitted). Both statutes require elements the other does not. “The DUI statute
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requires proof that the defendant was in physical control of a motor vehicle,” while
first-degree assault does not. “The First-Degree Assault statute does not require
any proof of alcohol or intoxicate consumption,” and “requires proof that the
defendant caused serious physical injury either intentionally or wantonly. KRS
508.010(1). The DUI statute requires no proof of injury to another or proof of the
defendant’s state of mind.” Id. As such, no double jeopardy violation occurred.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the Knox Circuit
Court.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Steven Nathan Goens Daniel J. Cameron
Frankfort, Kentucky Attorney General of Kentucky
Mark D. Barry
Assistant Attorney General
Frankfort, Kentucky
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