Brown v. Commonwealth

COOPER, Justice.

On the night of January 15, 2002, in Hopkinsville, Kentucky, Appellant, De-mond T. Brown, drove his Ford Crown Victoria automobile into an intersection against a red light and collided with another automobile operated by Debra Conklin and also occupied by Conklin’s teenage daughter, Megan. Timothy Brown and Laticia Leavell, passengers in Appellant’s vehicle, were injured as a result of the collision; Debra and Megan Conklin were killed. Appellant was subsequently convicted by a Christian Circuit Court jury of two counts of wanton murder, KRS 507.020(l)(b), and two counts of wanton endangerment in the first degree, KRS 508.060. He received sentences of twenty years imprisonment for each murder con*424viction and one year imprisonment for each wanton endangerment conviction, all to run concurrently for a total of twenty years. He appeals to this Court as a matter of right, Ky. Const. § 110(2)(b), asserting three claims of reversible error, viz: (1) denial of his motion for a directed verdict of acquittal on the wanton murder charges; (2) failure to grant him a new trial due to alleged juror misconduct; and (3) improper redirect examination and closing argument by the prosecutor. Finding no error, we affirm the judgment of the trial court.

I. SUFFICIENCY OF THE EVIDENCE.

On a motion for a directed verdict of acquittal, all fair and reasonable inferences are drawn in the Commonwealth’s favor. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991). On appellate review, we determine whether, under the evidence viewed as a whole, it would be clearly unreasonable for a jury to find the defendant guilty. Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky.1983). There was undisputed testimony establishing that, on the night in question, Appellant and his brother picked up Leavell from the Meritor factory when her work shift ended at approximately 10:00 p.m. Appellant had two television monitors mounted in his automobile, one on the automatic transmission gearshift, and the other in the passenger-side dashboard. Appellant left the Meritor factory, turned onto Pembroke Road, and traveled toward the point where Pembroke Road intersected with the Martin Luther King, Jr. Bypass, where the fatal crash took place. There was evidence from which the jury could infer that Appellant was driving at a rate of speed between five and fifteen miles per hour over the fifty-five miles per hour speed limit.

Michael Kaylor was also employed at the Meritor factory. He left the factory at the same time as Appellant, but in a separate vehicle. There was evidence at trial that Kaylor and Appellant briefly traveled side-by-side at a high rate of speed. The record also shows that Kaylor changed lanes upon approaching a Monte Carlo automobile from the rear, and continued traveling at a high rate of speed approximately one car-length behind Appellant’s vehicle. Kaylor testified that he slowed his vehicle to turn off of Pembroke Road onto the Bypass immediately before the crash took place.

Adrian Thomas, the driver of the Monte Carlo, testified that the two cars passed by him “like [he] was sitting still.” Kelvin Quick, Thomas’s passenger, observed that one of the television monitors in Appellant’s vehicle was in operation as the vehicle approached the intersection. Although Leavell and Timothy Brown both testified that the monitor was off when the collision occurred, they did not agree as to when it had been turned off. Based on Quick’s testimony, the jury was entitled to infer that the monitor was on.

As Appellant approached the intersection, he saw that the traffic light in his direction was red. Nevertheless, he did not slacken his speed, believing that he could “time” the red light, i.e., that the light would change in his favor before he entered the intersection. Appellant admitted and it is undisputed that the light was still red when he entered the intersection and that he never applied his brakes. Jennifer Kaeferle, who was waiting with her husband at the red fight on the opposite side of the intersection, testified that her husband observed Appellant’s vehicle and Conklin’s vehicle approaching the intersection at the same time and remarked that a collision was about to occur. Kaylor, who was preparing to turn right somewhere *425behind Appellant’s vehicle, also testified that he saw the vehicles approaching each other and knew that a collision was imminent. There was no evidence adduced at trial indicating that either Appellant or his passengers ever saw the Conklin vehicle. The inference that Appellant did not see the impending collision was reinforced by the fact that his vehicle left no skid marks on the road prior to the point of impact.

Although Kaylor saw the accident occur, he immediately left the scene, drove home, changed vehicles, and then drove back to the scene of the accident. Kaylor testified that he never spoke to any officer at the scene. Based on the events of the night, Kaylor was charged with one count of wanton endangerment, and he entered an Alford plea1 on the morning of Appellant’s trial. The Commonwealth called Kaylor to testify during its case-in-chief and, during redirect examination, the prosecutor elicited testimony about the plea. On recross examination, Appellant’s counsel asked Kaylor what he had done wrong. Kaylor responded, “As far as I was concerned, I didn’t do anything wrong, but it got started somehow that I was racing, when I in fact wasn’t.”

“A person is guilty of murder when: ... (b) 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.” KRS 507.020 (emphasis added). KRS 501.020(B) defines “wantonly,” as follows:

A person acts wantonly with respect to a result or to 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 a nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.

(Emphasis added.)

Of course, to be convicted of wanton murder under KRS 507.020(l)(b), Appellant must have had a more egregious mental state than mere wantonness.

As explained in the Commentary accompanying the Penal Code ... the culpable mental state defined in KRS 501.020 as wantonness ... without more, will suffice for a conviction of manslaughter in the second degree but not for murder because, to qualify as murder, a capital offense, it must be accompanied by further circumstances manifesting extreme indifference to human life.

McGinnis v. Commonwealth, 875 S.W.2d 518, 520 (Ky.1994) (internal citations and quotations omitted), overruled on other grounds by Elliott v. Commonwealth, 976 S.W.2d 416, 422 (Ky.1998). It is the element of “extreme indifference to human life” that elevates wanton homicide to the same level of culpability as intentional homicide.

“There is a kind of [wanton] homicide that cannot fairly be distinguished ... from homicides committed [intentionally]- [Wantonness] ... presupposes an awareness of the creation of substantial homicidal risk, a risk too great to be deemed justifiable by any valid purpose that the actor’s conduct serves. Since *426risk, however, is a matter of degree and the motives for risk creation may be infinite in variation, some formula is needed to identify the case where [wantonness] should be assimilated to [intention], The conception that the draft employs is that of extreme indifference to the value of human life. The significance of [intention] is that ... it demonstrates precisely such indifference. Whether [wantonness] is so extreme that it demonstrates similar indifference is not a question that, in our view, can be further clarified; it must be left directly to the trier of facts. ”

KRS 507.020 (1974 cmt.) (quoting Model Penal Code § 201.2 cmt. 2 (Tentative Draft No. 9, 1959)) (emphasis added). See also Nichols v. Commonwealth, 657 S.W.2d 932, 935 (Ky.1983).

We have held that there was sufficient evidence to support a finding of this mental state, sometimes referred to as “aggravated wantonness,” Graves v. Commonwealth, 17 S.W.3d 858, 863 (Ky.2000), in a number of cases involving unintentional vehicular homicides. In Hamilton v. Commonwealth, 560 S.W.2d 539 (Ky.1977), we held that the evidence was sufficient where the defendant, while under the influence of alcohol, drove his vehicle at a rate exceeding the speed limit and entered an intersection against a red light. Id. at 543. In Walden v. Commonwealth, 805 S.W.2d 102 (Ky.1991), overruled on other grounds by Commonwealth v. Burge, 947 S.W.2d 805, 811 (Ky.1996), we upheld a wanton murder conviction where the defendant lost control of his vehicle and crossed the center line while operating his vehicle while under the influence of alcohol and at a high rate of speed. Id. at 105. In Estep v. Commonwealth, 957 S.W.2d 191 (Ky.1997), we held that the evidence was sufficient where the defendant operated a motor vehicle at a high rate of speed after ingesting five different prescription drugs, one of which had debilitating effects of which she was aware, crossed the center line to pass another automobile in a no-passing zone, failed to return her vehicle to the proper lane, and caused a fatal collision. Id. at 193. In Love v. Commonwealth, 55 S.W.3d 816 (Ky.2001), we held the evidence sufficient where the defendant was speeding, was intoxicated, and did not slow down or attempt to stop upon seeing a police car blocking the road but attempted to swerve around the police car while traveling a reported seventy to ninety miles per hour. Id. at 827. In Cook v. Commonwealth, 129 S.W.3d 351 (Ky.2004), we held the evidence sufficient where the defendant was intoxicated, admitted he was aware of the risk of driving while intoxicated, and lost control of his vehicle while operating it at a high rate of speed because he wanted to show his passenger “what his car had.” Id. at 362-63.

While the defendant in each of the preceding cases was impaired by an intoxicating substance, intoxication is not a prerequisite to a finding of extreme indifference to human life in a vehicular homicide case. The Commentary to KRS 507.020 is instructive as to what type of conduct might constitute aggravated wantonness: “Typical of conduct contemplated for inclusion in ‘wanton’ murder is: shooting into a crowd, an occupied building or an occupied automobile; placing a time bomb in a public place; or derailing a speeding locomotive.” KRS 507.020 (1974 cmt.). Each of these examples involves an activity that poses a high risk to human life, undertaken in or directed toward a place where human beings are present; yet none of them requires intoxication. In other words:

Setting this conduct apart from behavior that would not warrant an unintentional murder conviction are the following *427characteristics: (i) homicidal risk that is exceptionally high; (ii) circumstances known to the actor that clearly show awareness of the magnitude of the risk; and (iii) minimal or non-existent social utility in the conduct. Such conduct plainly reflects more than mere awareness and conscious disregard of a substantial and unjustifiable risk of death. It manifests a high disregard for life and evinces what the common law chose to call a depravity of mind or heart.

Brown v. Commonwealth, 975 S.W.2d 922, 924 (Ky.1998) (quoting Robert G. Lawson & William H. Fortune, Kentucky Criminal Law, § 8 — 2(c)(2), at 322 (1998)).

The homicidal risk of entering an intersection against a red light at a high rate of speed is obviously high. Not every intersection is regulated by a red light. Presumably, such traffic control devices are installed at intersections where there is a high volume of traffic and for the purpose of preventing vehicles approaching from perpendicular directions from simultaneously entering the intersection and colliding. Appellant was aware of the magnitude of the risk. He admitted on cross-examination that he knew the light was red as he approached the intersection and that by entering the intersection against the red light, he disregarded the risk that another vehicle would be driving through the intersection at the same time. Appellant also admitted that he was aware of the risk that a resulting collision might kill the occupants of another vehicle. Finally, the social utility of Appellant’s driving his vehicle into the intersection against the red light was nonexistent. He offered no excuse for his conduct. He was not, e.g., rushing a dying person to a hospital.

“Extreme indifference to human life” is also an element of the offense of wanton endangerment in the first degree. KRS 508.060(1). We recently held in Ramsey v. Commonwealth, 157 S.W.3d 194 (Ky.2005), that a person acted under circumstances manifesting extreme indifference to human life by operating a motor vehicle while intoxicated with a passenger in the vehicle when, though he did not violate any statute other than KRS 189A.010(1), he also was observed accelerating away from a stop sign at a higher than normal rate of speed, and when signaled by a police officer to pull over, he turned off his lights before stopping. Id. at 198. Obviously, Appellant’s conduct in this case exhibited a higher level of extreme indifference to the value of human life than that exhibited in Ramsey. Even if Appellant did not intend to run the red light, he was aware of and intentionally disregarded the risks that the light would not change in his favor before he entered the intersection, that if he ran the red light he might collide with another vehicle, and, if so, that persons might be killed.

Appellant points out that there was no evidence that he actually saw the Conklin vehicle as he approached the intersection. However, there was substantial evidence that the Conklin vehicle was readily visible to the other drivers on Pembroke Road, including Kaylor, and evidence from which the jury could infer that the reason Appellant failed to see it was because he was watching television instead of the approaching traffic.

Appellant argues that if this evidence is sufficient to support a wanton murder conviction, then every traffic violation will be converted into a charge of wanton endangerment, as any violation will necessarily involve extreme indifference to human life. We disagree. In Johnson v. Commonwealth, 885 S.W.2d 951 (Ky.1994), we held mere evidence that the defendant entered an intersection against a red light to be insufficient to support a wanton murder conviction. Id. at 953 (“Evidence was in*428troduced ... that he may have run a red light.”)- There was no other evidence of improper driving or conduct on the defendant’s part. Id. See also Commonwealth v. Mitchell, 41 S.W.3d 434, 435 (Ky.2001) (mere failure to secure infant in child restraint system in violation of KRS 189.125(3) insufficient to support even a reckless homicide conviction). Appellant’s conduct was substantially more than a mere traffic violation. In addition to driving at a rate exceeding the speed limit and violating a traffic signal, there was substantial evidence that Appellant was watching television rather than monitoring the traffic at the intersection and that he attempted to “time” the traffic light despite the fact that it remained red at all times during his approach. Moreover, from the testimony regarding the manner in which Appellant and, Kaylor operated their vehicles and Kaylor’s unusual conduct after the collision, the jury could reasonably have inferred that Appellant and Kaylor were racing during the period immediately preceding the collision and that Appellant ran the red light to “outrun” Kaylor, not realizing that Kaylor had slowed down to turn onto the Bypass. While the evidence was by no means overwhelming on these points, we cannot say as a matter of law that it was unreasonable for the jury to believe beyond a reasonable doubt that Appellant acted under circumstances manifesting extreme indifference to human life. Nichols, 657 S.W.2d at 935.

II. ALLEGED JUROR MISCONDUCT.

Appellant claims the trial judge erred in overruling his motion for a new trial. The motion was premised upon allegations of juror misconduct supported by an affidavit sworn by Juror 25 and a newspaper article in the Louisville Courier-Journal quoting Jurors 4, 22, and 25. Appellant alleges that his rights to a fair trial and impartial jury were prejudiced when the jury improperly considered extrajudicial evidence during its deliberations, and when at least one juror withheld material information during voir dire. We review the trial court’s denial of Appellant’s new trial motion for abuse of discretion. Jillson v. Commonwealth, 461 S.W.2d 542, 545 (Ky.1970).

A. Extrajudicial evidence.

In his affidavit, Juror 25 reported that another juror, whose name he did not recall, told the jury during deliberations that he had heard a rumor in the community that Appellant and Kaylor were racing as they approached the intersection of Pembroke Road and the Martin Luther King, Jr. Bypass. In the aforementioned newspaper article, Juror 22 questioned why Kaylor would have left the scene of the accident and later entered the Alford plea if he had been telling the truth about the racing allegations. The article also quoted Juror 4 as stating his belief that Kaylor and Appellant had been racing and Juror 25 reiterating his allegation that an unidentified juror had mentioned rumors of racing during deliberations. The trial judge held an evidentiary hearing at which Appellant was afforded the opportunity to present additional evidence of juror misconduct, but Appellant relied solely upon Juror 25’s affidavit and the newspaper article.2

“A juror cannot be examined to establish a ground for a new trial, except to establish that the verdict was made by lot.” *429RCr 10.04. We have adhered to the longstanding rule that juror testimony is generally incompetent to impeach a verdict. See, e.g., Gall v. Commonwealth, 702 S.W.2d 37, 44 (Ky.1985) (juror’s testimony that jury improperly considered defendant’s mental illness and parole eligibility during deliberations was incompetent); Grace v. Commonwealth, 459 S.W.2d 143 (Ky.1970) (juror’s affidavit swearing that she did not agree to the verdict was incompetent); Jones v. Commonwealth, 450 S.W.2d 812, 814 (Ky.1970) (juror’s affidavit swearing that jurors considered matters not in evidence during deliberations was incompetent).

In Doan v. Brigano, 237 F.3d 722 (6th Cir.2001), abrogated on other grounds as recognized by Maples v. Stegall, 340 F.3d 433 (6th Cir.2003), the United States Court of Appeals for the Sixth Circuit held an interpretation of Ohio Rule of Evidence 606(B) that precluded consideration of an affidavit attesting to improper outside influence on the jury to be contrary to clearly established United States Supreme Court precedent. Id. at 731. Appellant contends that Juror 25’s affidavit and statements to the Courier-Journal demonstrate that his jury was subjected to such an outside influence. We disagree. Kay-lor testified at trial, “it got started somehow that I was racing, which I wasn’t. I don’t know where it came from.” A reasonable interpretation of this testimony is that there were rumors that he and Appellant had been racing. According to Juror 25, the unidentified juror stated only that he had heard the rumors that the two had been racing as they approached the intersection. The unidentified juror did not vouch for the credibility of the rumors or supplement Kaylor’s trial testimony in any way. This stands in sharp contrast with Doan, where the juror in question “conducted an out-of-court experiment and reported her findings to the jury in the manner of an expert witness.” Id. at 733. See also Parker v. Gladden, 385 U.S. 363, 363-64, 87 S.Ct. 468, 470, 17 L.Ed.2d 420 (1966) (bailiff told the jury during deliberations that the defendant was a “wicked fellow,” that he was guilty, and that any error in finding the defendant guilty would be corrected by the Supreme Court); Mattox v. United States, 146 U.S. 140, 142-43, 13 S.Ct. 50, 51-52, 36 L.Ed. 917 (1892) (bailiff made inappropriate remarks to the jurors regarding the defendant’s guilt and informed them that this was the third man he had killed; also, newspaper article that commented on the strength of the evidence against the defendant was brought into the jury room and read aloud in the presence of the jury); Ne Camp v. Commonwealth, 311 Ky. 676, 225 S.W.2d 109,111-12 (1949) (one juror told another during deliberations that she had sought the advice of a priest who advised her that it would not be a sin to impose the death penalty).

Juror 25’s affidavit contains no evidence of outside influence, but only that a juror had heard elsewhere about a matter that was also mentioned during trial testimony. Nor are the other jurors’ statements cited by Appellant evidence of outside influence. Each of these statements is merely a response to an inference of racing that could reasonably be drawn from the evidence presented at trial. Therefore, because these juror statements do not establish improper outside influence upon the jury, they cannot be considered for the purpose of impeaching the verdict.3 Jones, 450 S.W.2d at 814.

*430 B. Withholding information during voir dire.

Appellant claims that his right to an impartial jury was violated when at least one juror withheld material information during voir dire. He argues that the affidavit and the newspaper article prove that a juror or jurors knew of the rumors about racing before trial and withheld that information when the trial court asked the following question during voir dire: “Does anyone have any knowledge as to the facts and circumstances of this case?”

It is well settled that “[t]o obtain a new trial because of juror mendacity, ‘a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.’ ” Adkins v. Commonwealth, 96 S.W.3d 779, 796 (Ky.2003) (quoting McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 850, 78 L.Ed.2d 663 (1984)). The evidence cited by Appellant falls short of meeting this standard. For example, in Paenitz v. Commonwealth, 820 S.W.2d 480 (Ky.1991), we remanded for a new trial where there was evidence to prove that a juror withheld the fact that she had discussed the details of the case with the government’s expert witness prior to trial. Id. at 481. In contrast, Juror 25’s statements, if taken as true, do not indicate that the unidentified juror had knowledge of the facts and circumstances of Appellant’s case; indeed, the only allegation was that the unidentified juror had heard rumors. If this did actually occur, we can only speculate as to the amount and substance of these rumors, given the threadbare allegations set forth by Appellant.

In circumstances where no challenge is made to juror qualification prior to or during trial and the challenge first occurs after rendition of a verdict, a party seeking relief from the effect of the verdict bears a heavy burden. It is incumbent upon such a party to allege facts, which if proven to be true, are sufficient to undermine the integrity of the verdict.

Gordon v. Commonwealth, 916 S.W.2d 176, 179 (Ky.1995). In light of the speculative nature and paper-thin credibility4 of Appellant’s allegations, we hold that the trial court did not abuse its discretion in overruling Appellant’s motion for a new trial. Cf. Key v. Commonwealth, 840 S.W.2d 827, 830 (Ky.App.1992) (jury verdict affirmed where defendant failed to elicit testimony from juror in question and the only evidence offered showed nothing more than speculation that juror was biased).

III. UNPRESERVED ISSUES.

During an in-chambers hearing before Appellant’s trial began, the prosecutor informed the court and defense counsel that “even if [Kaylor and Appellant] were racing, the race would have ended *431when Kaylor gets ready to turn [off of Pembroke Road],” and that the evidence would therefore not show that they were racing through the intersection where the collision took place. The prosecutor also stated that while Kaylor would testify about the manner in which he and Appellant were driving, he would not testify that the two were racing. Indeed, Kaylor never testified that he was racing with Appellant. During Kaylor’s direct and cross-examinations, no mention was made of the racing rumors in the community. On redirect examination, the prosecutor asked Kaylor if he had entered a guilty plea in response to a wanton endangerment charge, and Kaylor answered that he had entered an Alford plea. On recross, defense counsel followed up this inquiry by asking Kaylor what he had done to merit the wanton endangerment charge. Kaylor responded, “As far as I was concerned, I didn’t do anything wrong, but it got started somehow that I was racing, when I in fact wasn’t. I really don’t know where it came from.” Appellant concedes that he did not object to the prosecutor’s inquiry, but he seeks review for palpable error on grounds that the prosecutor should not have been permitted to elicit new evidence on redirect examination.5 Accordingly, we review for manifest injustice. RCr 10.26.

As a general rule, redirect examination should be limited to questions explaining matters that have been developed on cross-examination. E.g., White v. Commonwealth, 292 Ky. 416, 166 S.W.2d 873, 877 (1942). Nevertheless, “[t]rial courts have always had substantial discretion to allow departure from these norms.... The language of KRE 611(a), giving trial judges ‘reasonable control over the mode and order of interrogating witnesses,’ is consistent with the wide discretion trial courts have always had over the nature and scope of redirect and recross examination.” Robert G. Lawson, The Kentucky Evidence Law Handbook, § 3.20[5], at 245 (4th ed. LexisNexis 2003) (quoting KRE 611(a)) (internal footnotes omitted). Given the trial court’s wide discretion to allow this inquiry, and the fact that the testimony was otherwise admissible as impeachment evidence, Appellant suffered no manifest injustice from its admission.

Appellant also claims that the trial court committed palpable error by permitting the prosecutor to engage in misconduct during his closing argument. In considering alleged prosecutorial misconduct during closing argument, we review to determine “whether the conduct was of such an ‘egregious’ nature as to deny the accused his constitutional right of due process of law.” Slaughter v. Commonwealth, 744 S.W.2d 407, 411 (Ky.1987). Appellant bases his first allegation of pros-ecutorial misconduct upon a comparison of the prosecutor’s pretrial representations, noted above, with statements in his closing argument in which he invited the jury to draw an inference that Appellant and Kay-lor were racing at some point during the events leading up to the collision. In closing argument, “[i]t is the duty of the prosecuting attorney to confine himself to the facts in evidence and fair inferences that may be drawn therefrom.” Williams v. Commonwealth, 644 S.W.2d 335, 338 (Ky.1982). While no witness in the case sub judice explicitly testified that Appellant was racing with Kaylor, there was evidence adduced at trial that supported an inference that Appellant and Kaylor were racing one another before Kaylor slowed his vehicle to turn off of Pembroke Road. *432The prosecutor relied on this evidence as an illustration of the general manner in which Appellant was operating his vehicle during the time leading up to the collision, arguing: “Is racing an issue here? I don’t know. Is driving fast an issue? Absolutely.” The prosecutor’s closing argument was not inconsistent with his pretrial representations, as Kaylor did not testify that he and Appellant were racing. However, admissible evidence heard by the jury supported that inference, and the prosecutor’s pretrial statements were not misleading; thus, Appellant suffered no manifest injustice from this part of the Commonwealth’s closing argument.

Finally, Appellant asserts palpable error arising from a portion of the closing argument in which the prosecutor stated, “Kaylor pled guilty to first-degree wanton endangerment for operating his vehicle in the manner he did.” Appellant argues that this statement constituted both bolstering of Kaylor’s testimony and an improper characterization of Kaylor’s Alford plea. Both claims are meritless. Nothing in the statements cited by Appellant indicates that the prosecutor vouched for the credibility of Kaylor’s testimony. Compare Armstrong v. Commonwealth, 517 S.W.2d 233, 236 (Ky.1974) (prosecutor’s closing argument was improper bolstering where he told jury that he had known and worked with witness for a long time and that witness was honest and conscientious). Moreover, the prosecutor committed no misconduct in referring to the Alford plea as a guilty plea. See Alford, 400 U.S. at 37, 91 S.Ct. at 167 (“the Constitution is concerned with practical consequences, not the formal categorizations, of state law”). Furthermore, “[a]n Alford plea is a ‘plea of guilty,’ regardless of any denial of underlying facts .... ” Pettiway v. Commonwealth, 860 S.W.2d 766, 767 (Ky.1993). No manifest injustice resulted from this reference.

Accordingly, the judgment of convictions and the sentences imposed by the Christian Circuit Court are AFFIRMED.

LAMBERT, C.J.; COOPER, GRAVES, JOHNSTONE, SCOTT, and WINTERSHEIMER, JJ., sitting.

LAMBERT, C.J.; GRAVES, JOHNSTONE, and WINTERSHEIMER, JJ., concur.

SCOTT, J., concurs in part and dissents in part by separate opinion.

. Referencing the Supreme Court's decision in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), an "Alford plea” permits a defendant to maintain his innocence yet consent to the conviction and imposition of penalty. Id. at 36-37, 91 S.Ct. at 167.

. Hearsay is generally inadmissible as evidence in support of a motion for new trial. See KRE 1101(b) and (d); Brown v. Commonwealth, 490 S.W.2d 731, 732 (Ky.1973). Nevertheless, because the Commonwealth failed to object to the use of this evidence, we will address the merits of Appellant's claims.

. Appellant also argues that the jury’s alleged discussion of these rumors ran afoul of the "appearance of evil” doctrine. See, e.g., Young v. State Farm Mut. Auto. Ins. Co., 975 S.W.2d 98, 99-100 (Ky.1998); Dillard v. Ackerman, 668 S.W.2d 560, 563 (Ky.App.1984). *430This doctrine has usually been applied where actual prejudice is difficult to prove, but there has always been readily provable patently improper conduct on the part of an actor in a position to influence the jury. In the case sub judice, Appellant is not only unable to establish prejudice; he also has fallen short of showing improper conduct.

. The Department of Public Advocacy conducted telephone interviews with several jurors and had a hearing at which Appellant had the opportunity to present witnesses in support of his new trial motion. Despite all of this, the only sworn statement Appellant ever presented was Juror 25’s hearsay allegation, which never identified its declarant. Appellant could have subpoenaed all of the jurors to the hearing so that Juror 25 could identify the declarant who could then be questioned about the nature and extent of the information he allegedly withheld.

. Appellant does not assert that it was error for the Commonwealth to elicit this evidence as substantive evidence of his own guilt. See Tipton v. Commonwealth, 640 S.W.2d 818, 820 (Ky.1982); Parido v. Commonwealth, 547 S.W.2d 125, 126 (Ky.1977).