Margie J. Johnson v. Commonwealth of Kentucky ( 2021 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
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PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
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RENDERED: FEBRUARY 18, 2020
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2019-SC-0567-MR
MARGIE J. JOHNSON APPELLANT
ON APPEAL FROM LOGAN CIRCUIT COURT
V. HONORABLE TYLER L. GILL, JUDGE
NO. 18-CR-00212
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A Logan Circuit Court jury convicted Appellant, Margie J. Johnson, of
one count of wanton murder; two counts of wanton endangerment, and one
count each of operating a motor vehicle under the influence of alcohol,
operating on a suspended license, tampering with a witness, falsely reporting
an incident, failure to yield right-of way, and failure to maintain required
insurance. Following the recommendation of the jury, the trial court sentenced
Johnson to twenty years’ imprisonment. She now appeals as a matter of right.1
1 Ky. Const. § 110(2)(b) (“Appeals from a judgment of the Circuit Court imposing
a sentence of...imprisonment for twenty years or more shall be taken directly to the
Supreme Court.”).
Johnson asserts a single claim of error: the trial court erred in denying
her motion for a directed verdict as to murder because the Commonwealth
failed to prove that she acted with extreme indifference to the value of human
life. After review, we affirm the judgment of the trial court.
I. FACTUAL BACKGROUND
This case arises out of a fatal traffic accident in Logan County. Johnson
was driving westbound on Stevenson Mill Road with her two minor children as
her passengers. Johnson then came to an intersection and drove across the
highway without yielding to oncoming traffic. As she crossed the intersection,
Johnson struck a blue van traveling southbound along the highway. The
collision caused the van to skid and flip over the adjacent guard rail. The van’s
driver, Carl Hodges, was ejected from the vehicle, suffering fatal injuries.
At the scene of the accident, Johnson falsely informed police that she
had been traveling southbound when Hodges’ blue van appeared suddenly and
struck the vehicle. Additionally, she claimed that her 15-year-old son had been
driving at the time of the accident. Her son immediately objected, prompting
the police to conduct a series of field sobriety tests, which Johnson failed.
Shortly thereafter, Johnson was taken to the hospital and her blood was drawn
for testing. The blood test revealed that her blood alcohol level was .242 grams
per 100 ml of blood, over three times the legal limit.
Johnson was indicted of murder, two counts of wanton endangerment,
one count of operating a motor vehicle under the influence of alcohol, one
2
count of operating on a suspended license, one count of tampering with a
witness, one count of falsely reporting an incident, one count of failing to
maintain insurance, and one count of disregarding a stop sign2.
At the close of the Commonwealth’s case, Johnson moved for a directed
verdict on all counts, including the charge of wanton murder. Specifically,
Johnson argued that the Commonwealth failed to prove that she had acted
with “extreme indifference to the value of human life.” The trial court denied
this motion. During her case, Johnson introduced a toxicology report showing
that the only drug in her system at the time of the accident was alcohol.3
Johnson failed to renew the motion for directed verdict at the close of all the
evidence.
The jury found Johnson guilty on all counts. By agreement of both
parties, the court sentenced Johnson to the minimum on all charges, resulting
in a sentence of 20 years’ imprisonment. This appeal follows.
Additional facts are included below as necessary.
II. ANALYSIS
A. The trial court did not err in denying Johnson’s motion for directed
verdict.
2 The stop sign charge was later amended to reflect the evidence presented at
trial that Johnson stopped at a stop sign but failed to yield the right of way to
oncoming traffic. Each of these offenses is governed by the same statute, KRS
189.330.
3 In addition to the lab report, the parties stipulated that Johnson was not
pregnant at the time of the accident and that Johnson was not under the influence of
a drug other than alcohol.
3
1. Preservation
At the threshold, we note that Johnson failed to preserve her motion for
directed verdict when she did not renew her motion at the conclusion of the
defense’s case-in-chief. Johnson concedes that she did not renew her motion
but urges this Court to nevertheless hold that the issue is sufficiently
preserved. We decline to do so.
First, Johnson claims that our case law regarding preservation of
directed verdict issues contains numerous, severe inconsistencies and requests
this Court revisit our precedent to provide guidance. We agree that, at the time
Johnson filed her notice of appeal, our precedent in this area failed to provide
litigants sufficient guidance on how to preserve issues concerning the denial of
directed verdict motions. During the pendency of this appeal, however, this
Court decided Ray v. Commonwealth.4 There, we outlined a new standard for
preservation of directed verdict issues:
Accordingly, we now hold that in order to preserve an alleged
directed verdict issue for appeal, criminal defendants must: (1)
move for a directed verdict at the close of the Commonwealth's
evidence; (2) renew the same directed verdict motion at the close of
all the evidence, unless the defendant does not present any
evidence; and identify the particular charge the Commonwealth
failed to prove, and must identify the particular elements of that
charge the Commonwealth failed to prove. Criminal defendants
may move for directed verdict on one count of a multiple count
indictment without rendering the alleged error unpreserved;
defendants are not required to move for directed verdict on any
lesser included offenses to a particular charge in order to preserve
the issue; and, nor are they required to object to instructing the
4 611 S.W.3d 250 (Ky. 2020).
4
jury on that particular charge to preserve the alleged directed
verdict error.5
Ray addresses many of the inconsistencies validly raised by Johnson,
but it does not excuse Johnson’s failure to renew her motion at the close of her
case-in-chief. Though Ray overrules a sizable portion of our case law on
preservation of directed verdict issues, we expressly affirmed and retained the
requirement that a defendant must renew her motion for a directed verdict if
she introduced evidence in her case-in-chief.6 In contrast to other aspects of
the doctrine, we found the requirement of renewal to be “by and large, both
frequently and consistently applied.”7 Accordingly, Johnson’s failure to renew
her motion for directed verdict at the close of her case cannot be excused
because the requirement was well-established at the time of her trial and
remains established post-Ray.
Second, Johnson urges us to abandon the requirement of renewal on
constitutional grounds. It is axiomatic that the prosecution must introduce
sufficient proof to support a jury finding of guilty beyond a reasonable doubt.8
Johnson argues that the renewal rule undermines that fundamental guarantee.
Under this theory, the failure of the prosecution to introduce sufficient
5 Id. at 266 (emphasis in original).
6 See Id
7 Id. at 258 n.25 (outlining numerous cases in which this Court upheld the
requirement that a defendant renew her motion for directed verdict to properly
preserve it.).
8 See Acosta v. Commonwealth, 391 S.W.3d 809, 819 (Ky. 2013).
5
evidence to prove an element of a criminal charge causes the defendant’s due
process right to vest at the close of the prosecution’s case. The introduction of
evidence in the defendant’s case, according to Johnson, does not matter
because the flaw in the prosecution proof will remain unless it is somehow
cured by the defendant’s proof. In sum, Johnson asserts that the requirement
of renewal harms the defendant’s constitutional rights for the failure to take a
superfluous action: the constitutional error that they properly objected to
persists regardless of whether the defendant introduced further evidence or
not.
We note that we have considered and rejected this argument in a prior
decision, Baker v. Commonwealth.9 There, the defendant, relying on our
plurality opinion in Dyer v. Commonwealth10, argued that one should only be
required to renew their directed verdict motion when the evidence introduced
subsequent to the defendant’s motion for a directed verdict cured the
prosecution’s failure to introduce sufficient evidence.11 We rejected that
argument and clearly rejected Dyer.12
973 S.W.2d 54 (Ky. 1998) (overruled on other grounds by Ray v.
9
Commonwealth, 611 S.W.3d 250 (Ky. 2020)).
816 S.W.2d 647 (Ky. 1991) (overruled by Baker v. Commonwealth, 973
10
S.W.2d at 55).
11 Baker, 973 S.W.2d at 54-55.
12 Id.
6
“Stare decisis is a doctrine which has real meaning to this Court.”13
Although “the doctrine of stare decisis does not commit us to the sanctification
of ancient [or relatively recent] fallacy,”14 we will faithfully apply precedent
unless “sound reasons to the contrary” justify departure.15 Only in cases
where a common law rule has proven to be anomalous, unworkable, or
contrary to public policy, will we overturn settled law.16
Here, departure is not warranted. The requirement that an issue be
preserved is a fundamental tenet of appellate procedure; an appellate court—
generally—lacks jurisdiction to review issues not raised or considered before
the trial court.17 “The critical point in preservation of an issue remains: was the
question fairly brought to the attention of the trial court.”18 The requirement of
renewal reinforces this principle: it ensures that the trial judge was afforded an
opportunity to pass on the propriety of the motion as the evidence adduced
throughout the trial changes.
13 Gilbert v. Barkes, 987 S.W.2d 772, 776 (Ky. 1999).
14 Morrow v. Commonwealth, 77 S.W.3d 558, 559 (Ky. 2002).
15See Williams v. Wilson, 972 S.W.2d 260, 269 (Ky. 1998) (Stephens, C.J.
concurring) (quoting Hilen v. Hays, 673 S.W.2d 713, 717 (Ky. 1984)).
16 D & W Auto Supply v. Dept. of Revenue, 602 S.W.2d 420, 424 (Ky. 1980).
17See Fischer v. Fischer, 348 S.W.3d 582 (Ky. 2011) (abrogated on other
grounds by Nami Resources Company, L.L.C. v. Asher Land and Mineral, Ltd., 554
S.W.3d 323 (Ky. 2018)).
MV Transp., Inc. v. Allgeier, 433 S.W.3d 324, 331 (Ky. 2014)(quoting Lanham
18
v. Commonwealth, 171 S.W.3d 14, 20-21 (Ky.2005)).
7
Though we recognize that a defendant assuredly does not intend to
present evidence that cures a fatal flaw in her opponent’s case, that possibility
is not precluded as a matter of logic. Indeed, the presentation of evidence in
the defense’s case may lead to factual developments—during either cross-
examination or the Commonwealth’s rebuttal—that, under the totality of the
circumstances, are relevant to the court’s judgment on a directed verdict
motion. Renewal affords the trial court the opportunity to consider that
possibility.
Moreover, criminal defendants are protected from a trial court’s error
affecting substantial, constitutional rights by the palpable error standard.
Pursuant to RCr19 10.26, an unpreserved error which “affects the substantial
rights of a party may be considered by…an appellate court on appeal, even
though insufficiently raised or preserved for review, and appropriate relief may
be granted upon a determination that manifest injustice has resulted from the
error.” If a defendant demonstrates that an error threatens their entitlement to
due process of law, then reversal is warranted notwithstanding the defendant’s
failure to preserve. A conviction based on insufficient evidence violates the
defendant’s due process rights and merits reversal under the palpable error
standard.20
19 Kentucky Rule of Criminal Procedure.
20 Cf. Acosta, 391 S.W.3d at 819.
8
In sum, Johnson cannot show that the requirement of renewal should be
overruled under principles of stare decisis. The rule is not anomalous in
consideration of the present state of the doctrine; rather, it is part and parcel
with the general requirement that a trial court must have an opportunity to
consider an issue prior to appellate review. Further, the rule is not
unworkable. To the contrary, it provides a bright-line requirement that may be
consistently applied by courts. Finally, to the extent that a trial court
improperly denies a motion for directed verdict, the palpable error standard
serves to protect the defendant from legitimate infringement on their due
process rights. For the foregoing reasons, we reject Johnson’s argument that
the requirement of renewal be overturned and hold that she failed to preserve
her motion for appellate review.
2. Directed Verdict
Given that the trial court’s alleged error was unpreserved, we undertake
review pursuant to the palpable error standard.21 Thus, Johnson must
demonstrate that the trial court’s decision to deny her motion for directed
verdict affected her substantial rights and that allowing the decision to stand
would lead to manifest injustice.
This Court determined the standard trial courts must apply when
confronted with motions for directed verdict in Commonwealth v. Benham:
21 Johnson properly requests palpable error review as required by RCr 10.26.
9
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
question as to the credibility and weight to be given to such
testimony.22
On appeal, we must determine “if under the evidence as a whole, it would
clearly unreasonable for a jury to find guilt, only then the defendant is entitled
to a directed verdict of acquittal.”23
KRS24 507.020(1)(b) provides that “a person is guilty of murder when…
[while operating] a motor vehicle under circumstances manifesting an extreme
indifference to human life, he wantonly engages in conduct which creates a
grave risk of death to another and thereby causes the death of another person.”
“Extreme indifference to human life” lacks precise definition under our case
law. In lieu of a (checklist of factors) establishing wantonness, the finder of
fact must examine the facts of each case under the totality of the
circumstances.”25
As both parties indicate, many of our DUI-related wanton murder cases
employ a “drunkenness-plus” framework to determine if the defendant acted
22 816 S.W.2d 186, 187 (Ky. 1991).
23 Id.24 Kentucky Revised Statutes.
25 See Bowling v. Commonwealth, 553 S.W.3d 231 (Ky. 2018).
10
with extreme indifference to human life. That is, we look for some indicia of
reckless behavior in addition to the fact that the defendant was intoxicated.
Thus, in Hamilton v. Commonwealth, we determined that a defendant who was
drunk, driving with excessive speed, and ran a red light was guilty of wanton
murder.26 Similarly, in Bowling v. Commonwealth, we held that the trial court
properly denied the defendant’s motion for directed verdict when the evidence
showed that he was drunk and weaved across the center line.27
In this case, the evidence produced by the Commonwealth was of a
similar nature to Hamilton and Bowling. Johnson’s blood test revealed that her
blood alcohol content was substantially higher than the legal limit.
Additionally, eyewitness testimony established that she drove through an
intersection into oncoming traffic without regard, ignoring the right-of-way.
Finally, while the evidence did not establish that Johnson was traveling in
excess of the legal speed limit, she was traveling at sufficient speed to cause
the victim’s van to flip over an adjacent guard rail and cause significant
damage to both vehicles. In consideration of the foregoing evidence and our
relevant precedent, a reasonable jury could conclude that Johnson acted with
extreme indifference to human life. As a result, we hold that the trial court’s
26 560 S.W.2d 539 (Ky. 1977).
27 Bowling, 553 S.W.3d at 237-38.
11
denial of Johnson’s directed verdict motion was not error, let alone palpable
error.28
III. CONCLUSION
For the foregoing reasons, the Logan Circuit Court’s judgment is hereby
affirmed.
All sitting. Minton, C.J.; Hughes, Keller, Lambert, Nickell and VanMeter,
JJ., concur. Conley, J., concurs in result only.
COUNSEL FOR APPELLANT:
Aaron Reed Baker
Department of Public Advocacy
COUNSEL FOR APPELLEES:
Daniel J. Cameron
Attorney General of Kentucky
Lauren Rachel Lewis
Assistant Attorney General
28 See RCr 10.26
12