Rodney Bowling v. Commonwealth of Kentucky

                                                RENDERED: AUGUST 16, 2018
                                                         TO BEPUBLISHED



                              2016-SC-000548-MR


RODNEY BOWLING                                                        APPELLANT


                   ON APPEAL FROM CLAY CIRCUIT COURT
y.                 HONORABLE OSCAR G. HOUSE, JUDGE
                             NO. 15-CR-00017


COMMONWEALTH OF KENTUCKY                                               APPELLEE



               OPINION OF THE COURT BY JUSTICE WRIGHT
                                   AFFIRMING

      A Clay Circuit Court juiy convicted Appellant, Rodney Bowling, of

murder, driving under the influence, and two counts of first-degree assault.

The jury recommended sentences of thirty years’ imprisonment for murder;

thirty days’ confinement and a $500 fine for driving under the influence; and

ten years’ imprisonment for each of the two counts of assault. The jury

recommended that the sentences run concurrently. Consistent with the jury’s

sentencing recommendations, the trial court fixed Bowling’s sentence at thirty

years’ imprisonment and a $500 fine. Bowling now appeals to this Court as a

matter of right. Ky. Const. § 110(2)(b).

      Bowling asserts six claims of error in his appeal: (1) the trial court erred

in denying his motion for a directed verdict as to murder, as he alleges the

Commonwealth failed to prove aggravated wantonness; (2) the trial court erred

in allowing expert testimony exceeding the scope of the Commonwealth’s RCr
7.24(l)(c) disclosure; (3) the trial court erred in the admission of laboratory

reports in contravention of his right to confront witnesses against him; (4) the

Commonwealth committed prosecutorial misconduct through statements made

during its closing argument; (5) the trial court erred in convicting him of both

murder and driving under the influence in violation of his right to be free from

double jeopardy; and (6) the trial court erred in imposing a fine against him for

driving under the influence after determining that he was indigent. For the

following reasons, we affirm Bowling’s convictions and their corresponding

sentences.


                                 I. BACKGROUND

      Bowling was driving in Clay County when his Ford Explorer crossed the

center line and struck a Ford Ranger operated by Ronnie Mitchell. Mitchell’s

girlfriend, Melissa Smith, and their daughter were in the truck with Mitchell.

Mitchell died as a result of the injuries he sustained in the collision, and Smith

and the couple’s daughter were both seriously injured. Bowling was taken to

the hospital, where a blood test was collected, revealing that Bowling was

under the influence of Xanax at the time of the collision. A few hours after the

wreck. Bowling was released from the hospital and consented to a police

interview.

      Based on the collision. Bowling was indicted by a Clay County Grand

Jury of murder, driving under the influence, and two counts of assault. He

was convicted of all charges by a Clay Circuit Court jury. Further facts will be

developed as necessary in analyzing Bowling’s allegations of error.
                                    II. ANALYSIS

   A. Directed Verdict
      Bowling argues the trial court erred in failing to direct a verdict on his

murder charge. Specifically, Bowling argues the prosecution failed to prove

aggravated wantonness. This Court succinctly stated the rule trial courts must

follow when faced with motions for directed verdict in Commonwealth v.

Benham, 816 S.W.2d 186, 187 (Ky. 1991):

      On motion for directed verdict, the trial court must draw all fair
      and reasonable inferences from the evidence in favor of the
      Commonwealth. If the evidence is sufficient to induce a reasonable
      juror to believe beyond a reasonable doubt that the defendant is
      guilty, a directed verdict should not be given. For the purpose of
      ruling on the motion, the trial court must assume that the
      evidence for the Commonwealth is true, but reserving to the jury
      questions as to the credibility and weight to be given to such
      testimony.

Furthermore, “[o]n appellate review, the test of 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.” Id.

      KRS 507.020(l)(b) states “a person is guilty of murder when . . . [while

operating] 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.” With this statute in mind, the jury instructions in Bowling’s case

required the jury to find beyond a reasonable doubt that Bowling; (1) caused

the collision resulting in Mitchell’s death and (2) that in causing said collision.
he wantonly engaged in conduct creating a grave risk of Mitchell’s death under

circumstances which manifested an extreme indifference to human life.

         Melissa Smith testified at trial. She was riding in the truck with Mitchell

along with the couple’s daughter at the time of the accident which claimed

Mitchell’s life. She testified that Mitchell had been forced to swerve into the

center of the road moments before the accident, as Bowling’s vehicle had

entered their lane of travel, heading toward them in the wrong direction. She

stated Mitchell reduced the speed of his truck and re-entered his lane once

Bowling returned to his lane. She testified that Mitchell had slowed his truck

to a near stop and pulled onto the shoulder of the road on his side when

Bowling again crossed the center line and hit Mitchell’s vehicle head-on. Smith

stated that she and her daughter were both seriously injured as a result of the

accident and that Mitchell was killed.

         A Kentucky State Police accident re-constructionist also testified

concerning the accident. He testified that, in his expert opinion. Bowling’s

vehicle struck Mitchell’s as Mitchell exited the highway onto the shoulder on

Mitchell’s side of the road. Bowling’s expert accident re-constructionist also

agreed that Bowling’s vehicle struck Mitchell on Mitchell’s side of the road

(although he opined the cause of the accident was Mitchell entering Bowling’s

lane).

         Kentucky State Police trooper Baxter testified that Bowling was impaired

at the scene—having slurred speech, drooping eyes, excessive slobbering, and a

white crust around his mouth. Baxter stated he did not perform any field
sobriety tests because medical personnel were examining Bowling and were

transporting him to the hospital. Baxter did, however, arrange for hospital

staff to take a blood sample from Bowling at the hospital. When Bowling was

being discharged from the hospital, Baxter arrested him, as he believed

Bowling was impaired. After his arrest. Bowling voluntarily gave an interview,

which Baxter recorded. The recording was played for the jury during Baxter’s

testimony at trial.

      The Commonwealth asserts that Bowling admitted during his interview

with Baxter to taking several prescription medications on the morning of the

collision “including Oxycodone, Neurontin, Xanax, high blood pressure pills,

etc.” Bowling’s counsel argues in his reply brief that he “believes [Bowling] only

says that he normally takes those prescriptions in a day and not that he had

actually taken all of them that day.” However, after listening to the interview,

this Court notes that Bowling admitted to having taken at least Xanax and

Oxycodone on the day of the incident. In the interview these were the first two

drugs Bowling listed as his “regular medications.” When Baxter inquired

whether Bowling had taken these medications on the day of the collision.

Bowling responded affirmatively. Baxter did not ask Bowling whether he had

taken any of the other medications he named in the interview on the day of the

fatal accident. Later in the interview, Baxter noted Bowling’s slurred speech

(which this Court also observed in listening to the recording), the fact that

Bowling was nodding off, and that Bowling had foam coming from his mouth.

Bowling responded that Xanax makes him fall asleep.
      The Commonwealth also presented the testimony of Courtney Carver, a

forensic chemist who works at the Kentucky State Police’s central laboratory.

She testified her examination of Bowling’s blood sample revealed the presence

of 133 nanograms per milliliter (ng/ml) of Xanax. She further testified that the

initial screening of Bowling’s blood revealed the potential presence of opiates

and other drugs, but that there was not enough blood in the sample to confirm

these initial results.

      Dr. Smock, the Commonwealth’s forensic toxicology expert, testified that

the therapeutic level of Xanax was between 10-40 mg/ml and that no doctor

would prescribe Xanax in a dosage that would result in the level present in

Bowling’s blood. Furthermore, he testified Bowling’s level of Xanax constituted

an overdose and explained that the slurred speech, drowsiness, and drooling

described by Baxter and demonstrated in the taped interview were consistent

with a Xanax overdose. Dr. Smock testified that, in his expert opinion. Bowling

was impaired due to the ingestion of Xanax and other substances on the night

of the collision. He further opined that nothing else in Bowling’s hospital

records could have led to his impairment.

      Bowling presented the testimony of the emergency room doctor. Dr.

Vorkdor, who stated Bowling was able to communicate, was coherent, spoke

properly, and was alert and conscious at the hospital following the accident.

Dr. Vorkdor testified that a urinalysis was done and that it did not show the

presence of alcohol or drugs.
      While some of the evidence Bowling presented was at odds with the

Commonwealth’s, this does not mean the trial court’s denial of Bowling’s

directed verdict motion was in error. Rather the trial court was tasked with

looking at all evidence in a light most favorable to the Commonwealth. In

reaching our holding, we note that “[i]t should be remembered that the trial

court is certainly authorized to direct a verdict for the defendant if the

prosecution produces no more than a mere scintilla of evidence. Obviously,

there must be evidence of substance.” Commonwealth v. Sawhill, 660 S.W.2d

3, 5 (Ky. 1983). Here, the Commonwealth presented such evidence of

substance. In drawing “all fair and reasonable inferences from the evidence in

favor of the Commonwealth,” Benham, 816 S.W.2d at 187, the trial court

properly denied Bowling’s motion.

      We hold that, under the evidence as a whole, it would not be clearly

unreasonable for a jury to find guilt.

      In spite of the Commonwealth’s evidence against him. Bowling argues his

mere intoxication was not enough to rise to the requisite level of wantonness

and that the trial court should have granted his motion for a directed verdict

on this ground. “This Court has made clear that intoxication, along with other

factors, can suffice to prove the wanton murder element of ‘circumstances

manifesting extreme indifference to human life.”’ Sluss v. Commonwealth, 381

S.W.3d 215, 219 (Ky. 2012) (quoting Hamilton v. Commonwealth, 560 S.W.2d

539 (Ky. 1977)). Bowling would have this Court hold that the totality of the

facts of the present case would not allow the juiy to find aggravated

                                         7
wantonness. Instead, he insists the only theory of wantonness in this case was

driving while intoxicated. We disagree.

      Both Sluss and the case at bar are missing some of the factors which had

been used in previous cases to show wantonness. For example, Bowling points

this Court to Hamilton v. Commonwealth, 560 S.W.2d 539 (Ky. 1977). In that

case, the defendant was speeding and ran a red light when he caused a fatal

collision while driving under the influence. Id. Bowling also directs us to Cook

V. Commonwealth, 129 S.W.3d 351, 363 (Ky. 2004), in support of his theory

that his conduct did not rise to the level of wantonness. In Cook, this Court

held, “[t]here was evidence in this case of both intoxication and excessive speed

from which a jury could reasonably infer an extreme indifference to human

life.” Id. There is no evidence that excessive speed played a role in either

Sluss’s or Bowling’s deadly collisions.

      However, as we pointed out in Sluss, this Court has not

      created a ‘checklist’ of factors a court must examine when
      determining whether a wanton murder jury instruction should be
      given to a jury. While it is certainly true that speeding is a factor
      that courts have considered, Hamilton makes clear that 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.’

381 S.W.3d at 220.

      Here, Bowling admitted to having taken at least two of his prescribed

medications (Xanax and Oxycodone) on the day of the collision. In Sluss, this

Court held that “even therapeutic doses of certain prescription medications

may sufficiently impair someone driving a vehicle. Most prescription

                                          8
medications warn against that precise conduct on the pill bottle.” Id. at 220.

In that case, Sluss’s doctor had discussed the fact that he should not drive

while taking his medication—and that fact was among the “other factors” the

Court considered in determining Sluss acted wantonly. Bowling points out

that there was no evidence in his case that a doctor had spoken to him about

the effects of his medications while driving; however, as we stated in Sluss,

most prescription medications contain warnings concerning driving. What is

more. Bowling told Baxter during the police interview that Xanax made him

sleepy when Baxter asked him why he was foaming at the mouth and falling

asleep. Therefore, much more than a doctor instructing Bowling of the possible

effects of the drug. Bowling was cognizant of the actual effects of the drug he

experienced—and chose to operate his vehicle in spite of them.

      Bowling also attempts to distinguish our holding in Sluss by pointing out

that Sluss had admitted to using marijuana earlier in the day, and Bowling

had not admitted to any such illicit drug use. While that is technically true.

Bowling fails to account for the fact that the jury heard evidence that the level

of Xanax in his system was far above the level expected for therapeutic use. In

fact. Dr. Smock described it as an overdose level and testified that Bowling’s

slurred speech, foaming at the mouth, and drowsiness (both as described by

Baxter and noticeable on the taped interview) were all in line with a Xanax

overdose.

      Finally, Bowling points to the fact that Sluss was weaving in and out of

traffic while approaching a curve prior to the collision in his case. However,

                                        9
this factor does not distinguish the cases at all. Smith testified that Bowling

had crossed the center line before the collision which ended her boyfriend’s life.

In fact, Smith stated Bowling was driving in their lane to the extent that

Mitchell had to leave his lane of traffic and enter Bowling’s in order to avoid a

collision. Then, after both vehicles had returned to their proper lanes. Smith

testified that Mitchell had pulled his vehicle onto the shoulder of the road and

slowed to an almost stop when Bowling again crossed the yellow line and the

entire oncoming lane before striking Mitchell’s truck head-on.

      Just as in Sluss, the totality of the facts in the present case “would allow

a reasonable jury to conclude that Appellant was operating his motor vehicle

under circumstances manifesting an extreme indifference to human life.”

381 S.W.3d at 220. Therefore, we hold that the trial court did not err in

denying Bowling’s motion for a directed verdict on the wanton murder charge.

   B. Scope of Expert Testimony

      Bowling next argues that the trial court erred in allowing the

Commonwealth’s expert witness. Dr. Smock, to testify beyond the scope of the

Commonwealth’s disclosure concerning his opinions. Bowling had made a

written request that the Commonwealth provide a summary pursuant to RCr

7.24(l)(c), which reads:

      upon written request by the defense, the attorney for the
      Commonwealth shall furnish to the defendant a written summary
      of any expert testimony that the Commonwealth intends to
      introduce at trial. This summary must identify the witness and
      describe the witness's opinions, the bases and reasons for those
      opinions, and the witness’s qualifications.



                                        10
       At trial, Dr. Smock testified extensively concerning the level of Xanax in

Bowling’s blood at the time of the collision and the effects of the drug.

Specifically, he testified that a therapeutic level of Xanax would be between 10

and 40 ng/dl, whereas Bowling’s level just over an hour after the collision was

133 ng/dl. Dr. Smock stated no doctor would prescribe Xanax in such a way

that Bowling’s level would have been this high if he were taking the medication

as prescribed. Dr. Smock testified that Xanax, even at therapeutic levels, has

several side effects including drowsiness, fatigue, impaired coordination,

amnesia, confusion, slurred speech, impaired concentration, dizziness, and

double vision. He stated that the drug information accompanying the

medication when filled at the pharmacy would have included this list of side

effects. Dr. Smock testified that the more of the drug an individual ingests, the

more these effects are magnified.

       Dr. Smock also testified as to the synergistic effects of Xanax and

Oxycodone. Bowling admitted to having taken both these drugs on the day of

the collision. According to Dr. Smock, this synergistic effect increases the risk

of side effects.

       In addition to reviewing Bowling’s medical records. Dr. Smock also

listened to the taped interview conducted by Baxter. He believed Bowling was

“clearly impaired” at the time of the collision. He testified that Bowling’s

speech during the interview was slurred—consistent with someone who had

consumed an excess of Xanax. He also testified that there would have been no

great change in the level of Xanax in Bowling’s blood between when the blood

                                        11
test was taken and when the collision occurred a little over an hour

beforehand, as the half-life of Xanax is 11 hours. Furthermore, Dr. Smock

stated that the drooling described by Baxter during the interview would be

consistent with a Xanax overdose.

      Dr. Smock provided all the above testimony without defense objection.

Apparently, this material was all contained within the Commonwealth’s RCr

7.24(l)(c) disclosure. However, when the Commonwealth began questioning

Dr. Smock concerning Appellant’s head injury and diabetes, defense counsel

objected. Specifically, Dr. Smock stated that, while Bowling may have had a

concussion, one would expect to observe bleeding or bruising on the brain in

order to attribute the head injury to behavior matching that exhibited by

Bowling. Dr. Smock testified that Bowling’s CT scan showed no signs of a

severe concussion, and that, while Bowling may have had a slight concussion,

it would not have affected his behavior in such a way as evinced on the taped

interview. Likewise, Dr. Smock stated that Bowling’s blood glucose level of 255

mg/dl would not impact his behavior to the degree demonstrated in the

interview.

      Defense counsel objected to these portions of Dr. Smock’s testimony on

the grounds that Dr. Smock’s opinions concerning Bowling’s head injury and

blood glucose level had not been disclosed pursuant to the RCr 7.24(c) motion.

The Commonwealth pointed out to the trial court that the defense had

presented other theories related to Bowling’s actions—such as his concussion




                                      12
and diabetes—and that Dr. Smoek’s testimony would refute those other

eauses. The trial court overruled the defense counsel’s motion.

      Bowling now argues that defense counsel had presented no expert

testimony at trial related to Bowling’s concussion or diabetes and that the

objection should have been sustained. However, while the defense did not have

a paid expert who presented these theories, the emergency room doctor who

saw Bowling after the collision did testily at trial regarding Bowling’s head

injury and glucose level. The fact that this evidence did not come in by means

of a paid expert witness is immaterial. Once Bowling opened the door to this

theory, the Commonwealth was free to refute it through its expert witness. The

Commonwealth could not have anticipated the need for this testimony in order

to include it in its disclosure.

      We review a trial court’s evidentiary rulings for an abuse of discretion.

Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.Sd 575, 577 (Ky. 2000) “The

test for abuse of discretion is whether the trial judge’s decision was arbitrary,

unreasonable, unfair, or unsupported by sound legal principles.”

Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).

      In support of his argument. Bowling points this Court to Barnett v.

Commonwealth, 763 S.W.2d 119, 123 (Ky. 1988), wherein we held “the

appellant was entitled under RCr 7.24 to be confronted with the fact that this

opinion would be presented against him before the trial started so that he had

a reasonable opportunity to defend against the premise.” In that case, the

defendant was accused of murdering his wife. The Commonwealth presented

                                        13
expert testimony that the traces of blood found on Barnett were consistent with

him having washed blood off his hands in a nearby puddle after stabbing his

wife. This theory was not contained in the Commonwealth’s RCr 7.24

disclosure and this Court held it was reversible error for the trial court to allow

its admission for this reason.

         However, we believe this case is more in line with Jones v.

Commonwealth, 237 S.W.3d 153, 158 (Ky. 2007), in which we distinguished

Barnett, stating, ‘‘Barnett stands for the principle that an expert may not testify

to an additional, undisclosed principle or premise not readily deducible from

the conclusions contained in that expert's report. In other words, Barnett was

based upon our desire to prevent a party from being deliberately surprised at

trial.” Id. (footnote omitted). In Jones, the Commonwealth contended that the

male DNA present in the victim’s vaginal swab matched the appellant.

However, the defense expert opined that no male DNA was present on a vaginal

swab. This Court stated we could not “perceive how permitting [the defense

expert] to explain why he found fault with the Commonwealth’s DNA expert’s

conclusion and/or methodology would have been impermissible ‘sandbagging.’”

Id. at 159. We went on to hold that the trial court’s limiting of the defense

expert’s testimony based on its erroneous finding that his testimony exceeded

the scope of the RCr 7.24 disclosure was not harmless beyond a reasonable

doubt.

      Just as the testimony in Jones should have been foreseen by the

Commonwealth, Dr. Smock’s testimony in the case at bar that excluded other

                                         14
causes for Bowling’s behavior during the interview should have been expected

by the defense. Dr. Smock testified at length as to his opinion that Bowling’s

actions were caused by his ingesting an overdose of Xanax prior to the collision

which took Mitchell’s life. While the defense did not present expert testimony

as to whether Bowling’s head injury or diabetes were the actual causes of his

slurred speech and other mannerisms, it presented testimony that at least

pointed to these other conditions. Dr. Smock’s testimony was clear that he

believed Bowling’s ingestion of Xanax and Oxycodone (and potentially other

drugs) caused his impairment. Therefore, the defense should not have been

caught off guard by his testimony that Bowling’s impairment was not brought

about by other conditions.

      For these reasons, we hold the trial court did not abuse its discretion in

allowing Dr. Smock’s testimony concerning Bowling’s potential head injury and

blood glucose level.

   C. Confrontation
      Bowling next asserts that the trial court violated his right to confront

witnesses, as guaranteed by the Sixth Amendment of the United States

Constitution, when it allowed a deputy coroner to testify regarding the results

of crash victim Ronnie Mitchell’s blood tests. The tests were conducted by a

lab in Indiana and showed therapeutic levels of benzodiazepine, opiate, and

gabapentin in Mitchell’s blood. The deputy coroner testified that his office was

required to send blood and urine samples to a laboratory in Indiana for testing

in cases such as this and that it had done so. When the prosecution elicited


                                       15
this testimony from the deputy coroner, defense counsel objected, arguing the

results were inadmissible and that the witness could not show the integrity of

the samples or how they were tested and knew nothing of the laboratory or

technicians who processed the sample. The trial court allowed the introduction

of the testimony, reasoning that the Commonwealth used such reports for

record-keeping.

      The Sixth Amendment to the United States Constitution (which was

made applicable to the states via the Fourteenth Amendment) provides, in

pertinent part, “[i]n all criminal prosecutions, the accused shall enjoy the right

... to be confronted with the witnesses against him.” In Crawford v.

Washington, 541 U.S. 36, 51 (2004), the Supreme Court of the Unites States

explained that the Sixth Amendment applies to those who “bear testimony”

against the accused. Crawford went on to explain various forms of testimonial

and nontestimonial out-of-court statements, and stated “[tjestimonial

statements of witnesses absent from trial have been admitted only where the

declarant is unavailable, and only where the defendant has had a prior

opportunity to cross-examine.” Id. at 59.

      The trial court ruled, and the Commonwealth now argues, that the

testimony was admissible because it was a record the Commonwealth kept in

the normal course of business. We hold that this ruling was in error. Building

on its ruling in Crawford, the Supreme Court later held:

      Documents kept in the regular course of business may ordinarily
      be admitted at trial despite their hearsay status. See Fed. Rule
      Evid. 803(6). But that is not the case if the regularly conducted

                                        16
      business activity is the production of evidence for use at trial. Our
      decision in Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87
      L.Ed. 645 (1943), made that distinction clear. There we held that
      an accident report provided by an employee of a railroad company
      did not qualify as a business record because, although kept in the
      regular course of the railroad's operations, it was “calculated for
      use essentially in the court, not in the business.” Id., at 114, 63
      S.Ct. 477.

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 321 (2009). Furthermore, the

Court went on to specify in Bullcoming v. New Mexico, 564 U.S. 647, 661

(2011), that “the analysts who write reports that the prosecution introduces

must be made available for confrontation.”

      We are bound by these holdings of the Supreme Court of the United

States when it comes to this federal constitutional issue. Therefore, we hold

that the trial court erred in allowing the admission of the statement at issue.

Having found error, we must now determine if it was harmless beyond a

reasonable doubt. Chapman v. California, 386 U.S. 18, 24 (1967) (“[BJefore a

federal constitutional error can be held harmless, the court must be able to

declare a belief that it was harmless beyond a reasonable doubt.”).

      In Staples v. Commonwealth, this court stated, “[hjarmless error analysis

applied to a constitutional error, such as the Confrontation Clause violation . .

. involves considering the improper evidence in the context of the entire trial

and asking whether there is a reasonable possibility that the evidence

complained of might have contributed to the conviction.” 454 S.W.3d 803,

826-27 (Ky. 2014) (internal quotations omitted). Put differently, we have also

stated that an error may not be deemed harmless beyond a reasonable doubt



                                       17
unless “there is no reasonable possibility that it contributed to the conviction.”

Winstead v. Commonwealth, 283 S.W.3d 678, 689 (Ky. 2009).

      Here, the evidence Bowling complains of consists of blood tests showing

that Mitchell had therapeutic levels of three prescription drugs

(benzodiazepine, opiate, and gabapentin) in his system the time of the collision.

Bowling’s defense was that he was not the cause of the accident. Therefore,

this evidence would have actually aided Bowling in his defense, rather than

hindering it. As previously noted, this Court has held that “even therapeutic

doses of certain prescription medications may sufficiently impair someone

driving a vehicle.” Sluss, 381 S.W.3d at 220.

      In addition to pointing out to the jury that even taken at the prescribed

doses, these drugs can cause impairment. Bowling could have explained the

synergistic effect of the drugs when taken together, just as Dr. Smock had

described. However, Smith provided an eye-witness account as a fellow victim

of the collision that Bowling was its cause. That, combined with the overdose

level of Xanax in Bowling’s bloodstream at the time of the crash, created ample

evidence on which the jury could base its verdict.

      There was ample evidence against Bowling and any impact of Mitchell’s

blood test results was negligible (and most likely in Bowling’s favor). For these

reasons, there is no reasonable possibility the admission of Mitchell’s blood

tests contributed to Bowling’s conviction.




                                       18
   D. Prosecutorial Misconduct

       Bowling next argues that two statements the Commonwealth made

during its closing argument amounted to prosecutorial misconduct. This issue

is unpreserved, but Bowling asks this Court to review it for palpable error

pursuant to RCr 10.26. Concerning palpable error, this Court has held:

      An error is “palpable,” . . . only if it is clear or plain under current
      law. Brewer V. Commonwealth, 206 S.W.Sd 343 (Ky. 2006), and in
      general a palpable error “affects the substantial rights of a party”
      only if “it is more likely than ordinary error to have affected the
      judgment.” Ernst v. Commonwealth, 160 S.W.3d 744, 762 (Ky.
      2005). ... An unpreserved error that is both palpable and
      prejudicial still does not justify relief unless the reviewing court
      further determines that it has resulted in a manifest injustice,
      unless, in other words, the error so seriously affected the fairness,
      integrity, or public reputation of the proceeding as to be “shocking
      or jurisprudentially intolerable.” Martin v. Commonwealth, 207
      S.W.3d 1, 4 (Ky. 2006).

Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky. 2009).

      In examining the alleged prosecutorial misconduct, we first note that

“[a]ny consideration on appeal of alleged prosecutorial misconduct must center

on the overall fairness of the trial.”   Stopher v. Commonwealth, 57 S.W.3d 787,

805 (Ky. 2001) (citing Partin v. Commonwealth, 918 S.W.2d 219 (Ky. 1996)).

We “may reverse only if the prosecutorial misconduct was so improper,

prejudicial, and egregious as to have undermined the overall fairness of the

proceedings.” Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006)

(citing Soto v. Commonwealth, 139 S.W.3d 827, 873 (Ky. 2004)). We must

determine “if the misconduct is ‘flagrant’ or if each of the following three

conditions is satisfied: (1) proof of defendant’s guilt is not overwhelming; (2)

defense counsel objected; and (3) the trial court failed to cure the error with a

                                          19
sufficient admonishment to the jury.” Barnes v. Commonwealth, 91

S.W.Sd 564, 568 (Ky. 2002) (citing United States v. Carroll, 26 F.Sd 1380, 1390

(6th Cir. 1994)).

       In the present case, the defense did not object to the Commonwealth’s

closing argument at trial. Therefore, the Barnes factors were not met and we

must determine whether the Commonwealth’s conduct was “flagrant.” We

consider four factors in making this determination: “(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.”

Hannah v. Commonwealth, 306 S.W.Sd 509, 518 (Ky. 2010) (superseded by

statute on other grounds).

       Bowling complains of two statements the Commonwealth made during

its closing argument. First, the Commonwealth stated in closing:

       So, you can weigh the credibility of Dr. Smock, who’s a retired
       professor from the University of Louisville Medical School, trained
       at the University of Louisville Medical School, or this doctor that—
       uh—his last name I’m not for sure how to say it—it starts with a
       V—who was trained at some medical school in Liberia. That’s on
       the west coast of Africa. Whether he’s a good doctor or not, I don’t
       know. But I do know what Dr. Smock’s credentials are and they’re
       excellent.

Bowling asserts that, in making this statement, the prosecution was making

improper suggestions “of personal knowledge that a [sic] man from Africa who

went to school in Africa was not as good of a doctor as an American who went

to school in America.” Bowling claims this was an appeal to bias and was

“pretty racist.”
                                       20
      Secondly, Bowling claims the Commonwealth committed prosecutorial

misconduct during its closing argument through a statement it made

concerning Mitchell’s bloodwork. Specifically, the Commonwealth argued that

Mitchell was not impaired at the time of the collision because the levels of

drugs found in his system were within therapeutic ranges. Bowling argues this

is a misstatement of the law.

      In examining the four factors for determining whether the

Commonwealth’s statements were flagrant under Hannah, we hold that they

were not.

      The Commonwealth’s remarks did not tend to mislead the jury. As to the

credentials of the doctors, we hold that the Commonwealth’s statements in this

regard did not rise to the level of flagrance and mislead the jury; however, we

still voice our disapproval of them. This Court is not in a position to determine

whether the Commonwealth’s statements concerning Dr. Vorkdor were racially

motivated. Because the defense did not object to the Commonwealth’s

statements in closing, the trial court (which was in the best position to make

such a determination) did not have a chance to rule on the matter. However,

the fact that the Commonwealth could not pronounce Dr. Vorkdor’s name, that

he went to “some medical school in Liberia” and the geographic location of that

country were not relevant. While it is certainly proper to draw comparisons

between the training and expertise of witnesses during closing arguments, that

comparison should be based on facts. The Commonwealth’s remarks were not.

The Commonwealth could not have been drawing a comparison when it

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referred not to a specific school, but rather to “some medical school in Liberia.”

Furthermore, the Commonwealth was certainly not comparing Dr. Vorkdor’s

skill and expertise to that of Dr. Smock, when the prosecutor admitted he did

not know if Dr. Vorkdor was “a good doctor or not.” The Commonwealth could

have emphasized the testimony of Dr. Smock and his qualifications without

making comments which may have sounded as if they had racist undertones.

Here, Dr. Vorkdor was an emergency room doctor in the local community

where the collision occurred—therefore, he was apparently qualified to provide

Bowling’s care. This being so, the interests of professionalism would have been

best served had the Commonwealth limited its criticism of Dr. Vorkdor to the

subject matter of his testimony.

      As to the level of prescription drugs in Mitchell’s system, the

Commonwealth only stated that Mitchell was not impaired because the level of

drugs in his system was within the therapeutic range. While we held earlier

that the admission of Mitchell’s blood work was in violation of Bowling’s Sixth

Amendment rights, the intention of this statement was still not to mislead the

jury. The Commonwealth was commenting on evidence that had already been

admitted in the case and was before the jury. While this Court has said that

even therapeutic doses of certain drugs are enough to impair an individual,

this statement during closing does not rise to the level of being “flagrant.” It

draws a contrast between the level of the drugs in Mitchell’s and Bowling’s

systems at the time of the collision.




                                        22
      Neither of these remarks were an extensive part of the Commonwealth’s

closing argument and were isolated in nature. Finally, the evidence against

Bowling was strong. An accident reconstructionist and Smith—a passenger in

Mitchell’s truck—both indicated the accident was Bowling’s fault. Blood work

revealed an “overdose” level of Xanax in Bowling’s system. A doctor testified

Bowling’s behavior was indicative of a Xanax overdose. Baxter testified

regarding Bowling’s actions after the collision and during the police interview.

Bowling’s interview with police was played for the jury, in which Baxter

commented on Bowling falling asleep and foaming at the mouth and the jury

could hear Bowling’s slurred speech.

      Even if this Court were to hold that the Commonwealth committed

prosecutorial misconduct, any such error would certainly not be palpable.

These statements did not “so seriously affect[] the fairness, integrity, or public

reputation of the proceeding as to be ‘shocking or jurisprudentially

intolerable.’” Jones, 283 S.W.3d at 668 (quoting Martin, 207 S.W.3d at 4).

   E. Double Jeopardy

      Bowling argues that his convictions for both wanton murder and driving

under the influence violate double jeopardy. He admits this argument is

unpreserved. However, this Court has held that the “failure to

present a double jeopardy argument to the trial court should not result in

allowing a conviction which violates double jeopardy to stand.”    Clark v.

Commonwealth, 267 S.W.3d 668, 674-75 (Ky. 2008).




                                        23
      The Double Jeopardy Clause of the Fifth Amendment of the United

States Constitution mandates that no person shall “be subject for the same

offence to be twice put in jeopardy of life or limb.” U.S. Const, amend. V; see

also Ky. Const. § 13. We have held that the Fifth Amendment and Section 13

of the Kentucky Constitution are “identical in . . . their prohibition against

double jeopardy.” Jordan v. Commonwealth, 703 S.W.2d 870, 872 (Ky. 1985).

In Blockburger v. United States, the United States Supreme Court held double

jeopardy does not occur when a person is charged with two crimes arising from

the same course of conduct, so long as each statute “requires proof of an

additional fact which the other does not.” 284 U.S. 299, 304 (1932).

      While Kentucky courts departed from the Blockburger rule for a time, this

Court stated in Commonwealth v. Burge: “we return to the Blockburger

analysis. We are to determine whether the act or transaction complained of

constitutes a violation of two distinct statutes and, if it does, if each statute

requires proof of a fact the other does not. Put differently, is one offense

included within another?” 947 S.W.2d 805, 811 (Ky. 1996) (internal citations

omitted).

      Therefore, we must determine whether the statutes for wanton murder

and DUl each require proof of a fact the other does not. In order to be guilty of

the crime of wanton murder involving operating a vehicle, KRS 507.020(l)(b)

states that the driver must operate a vehicle under “circumstances manifesting

extreme indifference to human life” and thereby “wantonly engage [] in conduct

which creates a grave risk of death to another person and thereby causes the

                                        24
death of another person.” The statute regarding driving under the influence,

KRS 189A.010, provides in pertinent part, “[a] person shall not operate or be in

physical control of a motor vehicle anywhere in this state: . . . (c) [w]hile under

the influence of any other substance or combination of substances which

impairs one’s driving ability . . .

      In short, in order to convict Bowling of wanton murder, the jury had to

find that he operated a motor vehicle under conditions manifesting extreme

indifference to human life and that he thereby caused Mitchell’s death. The

jury did not have to find either of these facts in order to convict Bowling of

driving under the influence. Rather, it only had to find that Bowling operated a

vehicle while impaired to convict him of the latter crime. Contrary to Bowling’s

argument to this court, as previously explained, intoxication was but one factor

which made Bowling’s conduct wanton. For these reasons. Bowling’s right to

be free from double jeopardy was not violated through his convictions for both

wanton murder and driving under the influence.

   F. Fine
      Lastly, Bowling argues the trial court erred by imposing a $500 fine for

his conviction for driving under the influence. He concedes this issue is not

preserved, but asks this Court to review it pursuant to Wright v.

Commonwealth, 391 S.W.3d 743, 750 (Ky. 2012) (“Although Appellant admits

this error was not properly preserved for review, he is correct in his assertion

that this issue may be presented for the first time on appeal.”).




                                        25
      Appellant argues that, pursuant to KRS 534.040(4), the court erred in

imposing a $500 fine upon him, as it had determined he was indigent pursuant

to KRS Chapter 31. We disagree. This Court recently addressed this very

issue in Commonwealth v. Moore, 545 S.W.3d 848, 850-51 (Ky. 2018):

             By its plain language, the fines that KRS 534.040 requires
      for misdemeanor offenses do not apply to crimes that are defined
      outside the penal code. By its own clear language, the indigency
      exemption of subsection (4) applies only to “fines required by” KRS
      534.040. In other words, the plain language of the statute grants
      an indigency exemption only for misdemeanors defined within the
      penal code and for which KRS 534.040 establishes the applicable
      fines. We find no ambiguity, and so, there is no alternate reading of
      the statute that would lead us to a different construction.
             KRS Chapter 189A, rather than the Kentucky Penal Code,
      provides the body of law that primarily governs the offense of
      driving under the influence. KRS 189A.010(l) defines the conduct
      that constitutes the crime of DUE KRS 189A.010(5) states with
      particularity the fines that may be imposed for DUE . . .
      Specifically, KRS 189A.010(5)(a) provides that for a first DUI
      offense within a ten-year period, the offender shall be fined not less
      than $200 nor more than $500.

      With this precedent in mind, we hold that the trial court did not err in

imposing the $500 fine on Bowling for driving under the influence.


                                 III. CONCLUSION
      For the foregoing reasons, we affirm the trial court as to Bowling’s

convictions and corresponding sentences.

      All sitting. All concur.




                                       26
COUNSEL FOR APPELLANT:

Brandon Neil Jewell
Assistant Public Advocate


COUNSEL FOR APPELLEE;

Andy Beshear
Attorney General of Kentucky

William Robert Long Jr.
Assisstant Attorney General




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