A circuit court jury convicted David Franklin Gurley, Jr., of Murder, four counts of second-degree wanton endangerment, two counts of criminal mischief, operating a motor vehicle while under the influence of intoxicants, and failure to maintain required automobile insurance. For these convictions, the trial court entered judgment sentencing Gurley to twenty-six years' imprisonment. Gurley argues on direct appeal that several trial errors require reversal of his convictions. We find Gurley's trial was fundamentally fair and affirm his convictions and associated sentence, reversing only the conviction for failure to maintain automobile insurance.
Gerald Goldsmith sat astride his motorcycle, sitting last in a long line of traffic waiting for the stoplight to turn green. Gurley, who had been drinking alcohol, approached Goldsmith from behind, driving his SUV under the posted speed limit. As he approached, the stoplight turned green but the vehicles in the line ahead of Goldsmith had not yet begun to move. Gurley did not appear to lessen his speed—no skid marks were detected at the scene—and struck Goldsmith's motorcycle from behind. The force of the impact drove Goldsmith's motorcycle into the vehicle directly in front of him and sent him flying into the air. In essence, Gurley drove his SUV through Goldsmith's motorcycle his front bumper wedged under the car in front of Goldsmith; likewise, that car was wedged under the car directly in front of it. Goldsmith died from the injuries suffered in this crash.
Deborah Godsey witnessed the crash. She pulled her vehicle onto the median of the highway and began to check on those involved. After seeing Goldsmith's condition, she approached Gurley's vehicle to check on him. He responded by asking her for a light for his cigarette. Her silence in the face of this request apparently agitated Gurley as he forcefully repeated his demand. Deborah simply walked away.
Within minutes, police and emergency personnel arrived. Officers Brittin and Zimmerman arrived first. Officer Brittin approached Gurley's vehicle and asked some preliminary questions about his identification and car registration. Meanwhile, Officer Zimmerman talked to Deborah who informed him she thought Gurley might be intoxicated and then paused briefly to check on Goldsmith while emergency personnel were attending to his condition before joining Officer Brittin at Gurley's vehicle.
Based on Gurley's condition, Officer Zimmerman felt a field sobriety test was appropriate. Gurley was removed from his vehicle and escorted approximately ten to twelve feet—a distance Gurley still had trouble navigating—to the rear of an ambulance parked near the accident scene. There, Gurley momentarily took a seat on the ambulance's bumper. After this short break, Officer Zimmerman escorted Gurley to the highway median, near his patrol car. Officer Zimmerman testified he chose this location because it was safe from surrounding traffic. Repeatedly, Officer Zimmerman attempted to explain the field-sobriety tests to Gurley but was continually met not only with Gurley's rejection of such explanations but also his crude announcement of how intoxicated he was and his request to be taken to jail. The two then moved to the front of Officer Zimmerman's nearby squad car so Gurley's field sobriety test could be videotaped with the dash camera. Gurley failed to beginlet alone complete—two different field sobriety tests correctly, at which point Officer Zimmerman acceded to Gurley's requests, arresting him and securing him in the squad car. At the police station, Gurley's blood-alcohol level was tested via Intoxilyzer and read 0.295, nearly four times the legal limit.
The grand jury indicted Gurley for (1) murder; (2) four counts of firstdegree wanton endangerment; (3) two counts of first-degree criminal mischief; (4) operating a motor vehicle under the influence of intoxicants, first offense, aggravating circumstances; (5) failure to maintain required automobile insurance. At trial, the jury convicted him of all charges except for the first-degree Wanton Endangerment charges, for which the jury convicted him of four counts of the lesser-included offense of second-degree Wanton Endangerment. The jury recommended Gurley serve concurrently twenty-six years in prison for the, murder and two-and-a-half years for the first-degree criminal mischief—a total of twenty-six years in prison. The trial court imposed sentence and entered judgment accordingly.
For his first argument of error, Gurley contends that the trial court instructed the jury erroneously, effectively foreclosing the jury's consideration of the lesser crime of reckless homicide and essentially directing a verdict of guilt for wanton murder. We disagree.
The trial court instructed the jury on wanton murder as follows:
According to Gurley, the intoxication language in this definition foreclosed any possibility that the jury would convict him of the lesser offense of reckless homicide because the wanton mental state was conclusively proven by the uncontradicted evidence of his intoxication.
We need look no further than the text of the instruction to address Gurley's argument. Despite Gurley's best efforts to argue otherwise, intoxication, by itself, is not sufficient to constitute wantonness under the instruction provided to the jury. Gurley concedes the evidence regarding his intoxication was overwhelming and unchallenged. But before the jury could find Gurley acted wantonly, other questions must have been answered. The jury had to find from the evidence that Gurley created a substantial and unjustifiable risk that Goldsmith's death would occur. Under the facts of this case—especially Gurley's low rate of speed—the jury could have found that Gurley did not create a substantial and unjustifiable risk. If that had happened, the jury could have convicted Gurley of reckless homicide, even though Gurley's intoxication was indisputable. Again, to put it directly, wantonness is not found simply because an individual is intoxicated.
We should make clear that Gurley's repeated references to the defense of voluntary intoxication are irrelevant to the issue at hand. The intoxication language added to the definition of wantonly is not the same as the defense of voluntary intoxication found in Kentucky Revised Statute (KRS) 501.080.
The simple truth is that the challenged jury instruction in no way granted a de facto directed verdict for the Commonwealth. The jury was not precluded from reaching reckless homicide. If we were to adopt Gurley's position, we would eviscerate KRS 501.080 and KRS 501.020. Merely because an individual is clearly intoxicated—and effectively admits it at trial—does not mean that a jury must find wanton conduct. It was not impossible for the jury to have proceeded to reckless homicide.
Gurley argues the trial court abused its discretion by refusing to strike Juror 920513 for cause, forcing him to exercise one of his peremptory strikes to remove that juror. A juror that Gurley claims he would have stricken if he had not been forced to exercise a peremptory strike on Juror 920513 sat on the jury. The issue, therefore, is properly preserved for our review.
During voir dire, the Commonwealth asked if any of the potential jurors had been arrested for DUI or had a family member or close friend arrested for DUI to the point that they were affected by it. Juror 920513 raised her hand.
A similar exchange with Juror 920513 occurred during Gurley's voir dire:
Gurley argues the trial court acted arbitrarily because it dismissed a similar juror but did not dismiss Juror 920513. In support of this argument, Gurley urges us to resolve an alleged conflict between our decisions in Little v. Commonwealth
Juror 1008685 indicated that in the last ten years he had been affected by DUI twice: a former co-worker's young daughter and his sister-in-law's close friend were both killed by drunk drivers. When asked if these incidents would make it unlikely that he could sit fairly on Gurley's case, Juror 1008685 responded, "Most likely, yes." The Commonwealth then informed Juror 1008685 of its burden of proof and asked if he would be unable to follow the law, to which he responded, "It's just a touchy subject." The Commonwealth then analogized reaching a guilty verdict to a math equation and informed Juror 1008685 he would not be able to take emotions into the analysis. After this, Juror 1008685 conceded and said he thought he could sit on the jury. The trial judge eventually granted the defense's motion to strike Juror 1008685 for cause.
Both Juror 920513 and Juror 1008685 were personally affected by a DUI tragedy. But the trial court's allowing one to sit and dismissing the other does not indicate arbitrariness. To the contrary, Juror 920513 is an illustration of our decision in Little while Juror 1008685 is illustrative of our decision in Ordway. Like the juror in Little, Juror 920513 was unequivocal in her ability to put aside her family tragedy and apply the law to the facts of the case. It is worth repeating that `lilt is a dangerous precedent to suggest that life experience alone disqualifies a juror."
As for striking Juror 1008685, that was a proper exercise of discretion under Ordway. Unlike Juror 920513, Juror 1008685 was equivocal in his responses regarding his impartiality. Juror 1008685 fell into the "gray area"
At the scene of the accident, Officer Zimmerman took Gurley by the elbow and directed him first to an ambulance, where Gurley briefly took a seat, and then to the median of the highway. In the median, Officer Zimmerman twice attempted to administer field sobriety tests to Gurley—each time Gurley abandoned the test almost immediately. After these attempts, Gurley requested Officer Zimmerman take him to jail, so Officer Zimmerman placed Gurley in the back of his patrol car. Before trial, Gurley moved to suppress statements made to Officer Zimmerman.
Gurley's argument fails because he was not in custody at the time the statements were made. In Miranda, the Supreme Court sought to protect the privilege of the Fifth Amendment against compelled self-incrimination by barring the prosecution from using "statements, whether exculpatory or inculpatory, stemming from custodial interrogation of [a] defendant" unless proper procedural safeguards were used.
Put simply, Gurley was not in custody at any point. Officer Zimmerman's interaction with Gurley was temporary and brief, lasting only a few short minutes. And the interaction took place in the median of a public highway, reducing "the ability of an unscrupulous policeman to use illegitimate means to elicit self-incriminating statements and diminish[ing] the motorist's fear that, if he does not cooperate, he will be subjected to abuse."
Finally, Gurley attempts to argue this was no traffic stop at all; instead, Officer Zimmerman approached the situation as a crime scene. Officer Zimmerman acknowledged as much during his trial testimony. This argument is misguided because Gurley's attempted distinction is largely immaterial. Miranda was explicit that general on-the-scene questioning was outside the scope of its holding: "General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding."
Because Gurley was not in custody, he was not entitled to be given warnings under Miranda, and the trial court correctly denied his motion to suppress.
As his final argument on appeal, Gurley asserts he was entitled to a directed verdict of acquittal on his driving-without-insurance charge because the Commonwealth's evidence was insufficient to meet its burden of proof. We agree.
When presented with a motion for directed verdict, "a trial court must draw all fair and reasonable inferences in favor of the Commonwealth."
If an individual owns or operates a vehicle in this state, he must have insurance. Under KRS 304.39-080(5):
The Commonwealth offered no proof regarding the ownership of the vehicle or whether it had checked Gurley's insurance status with the Department of Vehicle Regulation, where, by statute, insurers are required to register all vehicle identification numbers of "each personal motor vehicle covered by liability insurance issued by the insurer."
For the foregoing reasons, Gurley's conviction for Driving Without Insurance is reversed. Gurley's remaining convictions and associated sentences are affirmed. The case is remanded to the trial court for entry of a conforming judgment.
All sitting. Minton, C.J., Hughes, Noble, and Venters, JJ., concur. Cunningham, J., concurs in result only by separate opinion in which, Keller and Wright, JJ., join.
CUNNINGHAM, J., CONCURRING IN RESULT ONLY:
I concur in result, but take issue with only one statement in the opinion. The Majority quotes from Little "[i]t is a dangerous precedent to suggest that life experience alone disqualifies a juror." It's not dangerous at all. Some tragic experiences are so searing as to forever preclude someone from being able to sit as a juror on a certain type of criminal case. Common sense alone dictates that a parent having a child abducted and murdered would never be able to objectively sit as a juror on a criminal prosecution of a child abduction and murder case. Unfortunately, life is full of bad experiences, some of which are so horrific as to permanently scar the soul.
Keller and Wright, JJ., join.
(1) Negatives the existence of an element of the offense; or
(2) Is not voluntarily produced and deprives the defendant of substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law."
