Antonio Perez Lopez v. Commonwealth of Kentucky ( 2021 )


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  •                  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    NOT TO BE PUBLISHED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.
    -2-
    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.
    -3-
    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).
    -4-
    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.
    -5-
    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.
    .
    -6-
    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
    -7-
    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.
    -8-
    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
    -9-
    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
    -10-
    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
    -11-
    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
    -12-
    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
    -13-
    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).
    -14-
    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
    -15-
    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 . . . .”
    -16-
    
    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
    -17-
    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
    -18-