Justin D. Wibbels v. Commonwealth of Kentucky ( 2017 )


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    NOT TO BE PUBLISHED OPINION
    THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
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    RENDERED:. MARCH 23, 2017
    NOT TO BE PUBLISHED
    ~uprtmt Qlnurf nf
    .   2016-SC-000103-MR
    !8itFfv\JJ ~ l
    JUSTIN D. WIBBELS
    ON APPEAL FROM LAUREL CIRCUIT COURT
    V.                  HONORABLE GREGORY ALLEN LAY, JUDGE.
    NO. 14-CR-00287
    COMMONWEALTH OF KENTUCKY                                                     APPELLEE
    MEMORANDUM OPINION OF THE COURT
    AFFIRMING
    A jury in Laurel County convicted Justin Wibbels of wanton murder.
    Consistent with the jury's sentencing recommendations, the trial court fixed
    his sentence at confinement for twenty years.
    Wibbels now appeals as a matter of right, Kentucky Constitution §
    l 10(2)(b), arguing that tlie trial court erred by: (1) denying his motion for a
    directed verdict; and (2) denying his request to introduce evidence of the
    victim's family's ill will toward him. For the reasons set forth below, we affirm.
    I. BACKGROUNDl
    On the morning of June 16, 2014, the Appellant, Justin Wibbels, was
    traveling westbound in Laurel County on KY 30, a two-lane road with an
    emergency lane on each side, As he traveled in his extended cab pick-up
    1 Because Wibbels challenges the trial court's denial of his motion for directed
    verdict, we present the facts in a light most favorable to the Co=onwealth unless
    otherwise noted.
    truck, he approached and attempted to pass Laura Jones.2 However, upon
    Wibbels initiating his pass, Jones was forced to pass the vehicle in front of her,
    which had unexpectedly pulled out into her path at a much slower speed from
    an intersecting side road. Jones passed the car and returned to her proper
    lane of travel in the westbound lane. Wibbels did not return to his 'proper lane.
    Instead, he moved to the left, into the eastbound emergency lane. 3
    Mark Sulfridge, a motorist driving westbound in front of Jones and
    Wibbels, testified that he observed Wibbels _drivi1;1g in the eastbound emergency
    lane 1;1.s oncoming traffic passed him. Wibbels then moved from the eastbound
    emergency lane to the westbound lane behind Sulfridge. Sulfridge testified that
    he was traveling about sixty miles per hour, and Wibbels passed him "like [he]
    was sitting still." Wibbels overtook both Sulfridge and the vehicle in front of
    Sulfridge, as a line of five or six vehicles approached in the oncoming,
    eastbound .lane. Sulfridge testified that, upon seeing the traffic approaching,
    he began to slow down so that Wibbels had space to re-enter the westbound
    lane. Sulfridge also testified that Wibbels pulled into the eastbound lane to
    pass.Sulfridge, the vehicle in front him, and the vehicle in front of that.
    However, instead of re-entering the westbound lane, Wibbels, without slowing
    down, moved into the eastbound emergency lane for a second time.
    J
    2   We note, at the outset, that the entire course of events took place in a passing
    zone.
    3 Wibbels testified that he was ·"boxed in" by Jones, the slower moving vehicle
    he was attempting to pass, and additional vehicles that had taken his place in traffic
    behind the slower moving vehicle. Thus, he contends he was forced into the
    eastbound emergency lane.
    2
    '
    James Belt was just approaching KY 30 from an intersecting road to the
    .
    . south (to Wibbels's left while he drove in the eastbound emergency lane).4 Belt
    testified that, as he sat at the stop sign, preparing to turn into the eastbound
    lane of KY 30, he looked right and saw Wibbels approaching rapidly. Belt
    testified that Wibbels's truck "came through so fast it shook [his] truck" and
    "rocked it from side to side.~ Belt also testified that, when Wibbels passed him,
    there were no vehicles directly next to Wibbels, which would have prevented
    Wibbels from returning to the westbound lane of traffic.s Belt pulled into the
    '                               .
    eastbound lane and, through his rearview mirror, observed Wibbels move into
    \
    the eastbound lane and then back into the eastbound emergency lane, while
    continuing westbound. Belt testified that Wibbels could h,ave moved into the
    open westbound lane but returned to the eastbound emergency Ian~.
    As Wibbels drove in the eastbound emergency lane, Timothy Berry was
    traveling westbound on KY 30 ahead ofWibbels and Sulfridge. Through his
    '     .               .
    rearview mirror, Berry could see Wibbels driving westbound in the eastbound
    emergency lane as oncoming traffic passed Wibbels. Berry ·testified that he was
    traveling at fifty-five miles per hour, with a line of four or five cars behind him,
    and Wibbels was "catching [up to him] like [he] was sitting still." About this
    time, a new line of four or five vehicles appeared around a curve, traveling in
    the eastbound lane. Berry testified that he moved over to the right, partially in
    • The road Belt was exiting, Freeman Hollow Road, was approximately a quarter
    of a mile from where Wibbels first passed Jones.
    s Wibbels disputed this testimony, contending that'he was not able to return to
    the westbound lane because of a stream of cars therein.
    3
    the westbound emergency lane, to allow Wibbels to return to the westbound
    lane, but Wibbels remained in the eastbound emergency lane.
    , The first vehicle in the line of oncoming vehicles passed Wibbels.
    However, the second vehicle, a utility van driven by the victim, Jerry
    Thompson, suddenly darted into the eastbound emergency lane. No evidence
    was presented establishing why Thompson moved abruptly into the emergency
    lane. The two vehicles collided in the grassy area to the side of the. eastbound .
    emergency lane, killing Thompson instantly.
    Berry testified that the collision occurred just opposite his vehicle and.
    that, upon seeing the collision, he returned to the scene to check on the
    drivers. Berry asked Wibbels why he was passing in the emergency lane, to
    which Wibbels replied that he was "late and in a hurry." Wibbels testified that
    he never made this reply to Berry. He stated that he had .to be at work by 9:00
    A.M. and he was not running late, evidenced by the fact that, although it took
    him thirty to forty minutes to travel from his home to work, it was only 8:00
    '   A.M. at the time of the collision.
    Wibbels was subsequently convicted by a Laurel County jury of wanton ·
    murder, and was sentenced to twenty years' imprisonment. This appeal
    followed. We set forth additional facts as necessary below.
    f
    II. STANDARD OF REVIEW
    Because the issues presented require us to apply different standards of
    review, we set forth the appropriate standard as necessary when addressing
    each issue.
    (
    4
    III. ANALYSIS
    A. ·   The trial court properly denied Wibbels's motion for a directed
    verdict.
    Wibbels contends that, because the Commonwealth failed to prove
    wanton murder, he was entitled to a directed-verdict. We note that Wibbels
    properly preserved .this challenge through his motions for a directed verdict at
    the close ofthe Commonwealth's case-in-chief and at the close of his own case-
    in-chief. Because we discern that there was sufficient evidence for a
    .                                             r
    reasonable juror to find Wibbels guilty of each element, we affirm the trial
    court's decision to deny Wibbels's motions for a directed verdict.
    On a motion for a directed verdict of acquittal, the trial court must draw
    all fair and reasonable inferences in the Commonwealth's favor.
    Commonwealth v. Benham, 
    816 S.W.2d 186
    , 187 (Ky. 1991).· In ruling on the
    motion, "the trial court must assume that the evidence for th·e Commonwealth
    is true, but reserving to the jury questions as to the credibility and weight to be
    given to such testimony." 
    Id.
     "On appellate review, we determine whether;
    under the evidence viewed as a whole, it would be clearly unreasonable for a
    jury to find the defendant guilty." Browri v. Commonwealth, 
    174 S.W.3d 421
    ,
    424 (Ky. 2005).
    In order to convict Wibbels of wanton murder, the Commonwealth must
    have proven that he "operat[ed] ... a motor vehicle under circumstances
    manifesting extreme indifference to human life, [and] ... wantonly engage[d] in .
    conduct which create[d] a grave risk of death to another person and thereby
    '
    5
    (
    caus~[d] the death o_f another person." Kentucky Revised Statute (KRS)
    507.020(l)(b).
    A person acts wantonly with respect to a result or to a
    circumstance described by a statute defining an offense when he is
    aware of and consciously disregards a substantial and
    unjustifiable risk that the result will occur or that the
    circumstance exists. The risk must be of such nature and degree
    that disregard thereof.constitutes a gross deviation from the
    standard of conduct that a reasonable person would observe in the
    situation.
    ·KRS 501.020(3). As we noted in Brown v. Commonwealth, "to be convicted of
    wanton murder under KRS Q07.020(1)(b), Appellant must have had a more
    egregious mental state than mere wantonness." 
    174 S.W.3d 421
    , 425 (Ky.
    2005). "It is. the element ~f 'extreme indifference to human life' that elevates
    wanton homicide to the same level of culpability as intentional homicide." 
    Id.
    There is a kind of [wanton] homicide that cannot fairly be
    distinguished ... from homicides committed [intentionally].
    [Wantonness] ... presupposes an awareness of the creation of
    substantial homicidal risk, a risk too great to be deemed justifiable
    by any valid purpose that the actor's conduct serves. Since risk,
    however, is a matter of degree and the motives for risk creation
    may be infinite in variation, some formula is needed to identify-the
    case where [wantonness] should be assimilated to [intention]. The
    conception that the draft employs is that of extreme indifference to
    the value of human life. The significance of [intentioµ] is that ... it
    demonstrates precisely such indifference.
    KRS 507.020 (1974 cmt.) quoting Model Penal Code§ 201.2 cmt. ·2 (Tentative
    Draft No. 9, 1959)). Importantly, "whether [wantonness] is so extreme that it
    demonstrates similar indifference is not a question that, in our view, can be
    further clarified; it must be left directly to the trier offacts." Id. (emphasis
    added).
    6
    In our analysis, we examine whether the Commonwealth failed to present
    sufficient evidence to meet the requisite level of wantonness required to convict
    Wibbels of murder. The Commonwealth presented evidence that Wibbels was
    (1) driving at a high rate of speed (estimated at above eighty miles per hour); (2)
    passing back and forth between the opposite lane of travel and the opposite
    lane's emergency lane; and (3) in the vicinity of clusters of vehicles going both
    directions during their morning commute. Wibbels argues that his conduct
    was based on a social utility, in that he was precluded from returning to the
    proper of lane of traffic; howev~r, the Commonwealth presented testimony from
    multiple witnesses who disputed his assertion. Furthermore, while in the
    emergency lane, Wibbels could have simply stopped and waited for the traffic to·
    clear.
    As noted above, we must view the evidence in the light most favorable to
    the Commonwealth when reviewing a court's decision to deny a motion for a
    directed verdict; in doing so, we discern that the court properly denied
    Wibbels's motion. A reasonable juror could find, based on the
    Commonwealth's evidence, that Wibbels's conduct manifested an extreme
    indifference to human life.
    In the time since the General Assembly enacted Kentucky's. modem
    Penal Code, we have visited the issue of wanton murder while operating a
    motor vehicle on many occasions. Our sentinel case, Hamilton v.
    Commonwealth, 
    560 S.W.2d 539
     (Ky. 1977), affirmed the conviction of wanton
    murder where the defendant was drunk, speeding, and driving in the tum lane,
    7
    before he ran a red light, broad-siding another vehicle and killing its driver. As
    Wibbels correctly notes, the majority of o~ cases invoive not just a violation of
    traffic laws, but also the use of intoxicants.6 In each of these cases, we have
    I
    · held that there was sufficient evidence presented at trial to support a
    conviction of wanton murder .
    . Additionally, this Court has twice affirmed wanton murder convictions
    involving unintentional vehicular homicides in the absence of an intoxicated
    driver. In Graves v. Commonwealth, the defendant, in an effort to recover
    drugs for which he had just paid, raced through urban streets at over one
    hundred miles per hour while exchanging gunfire with the occupant of another
    vehicle. 
    17 S.W.3d 858
    , 863 (Ky. 2000)., He then ran a red light and struck a
    vehicle proceeding through the intersection, killing the driver. 
    Id.
     In Brown       v.
    Commonwealth, the defendant was racing another vehicle; was dfatracted by
    dash-mounted television monitors in his vehicle; and ran a red light, before
    6 See Walden v. Commonwealth, 805.S.W.2d 102 (Ky. 1991) (defendant was
    speeding and had a .0297 blood alcohol level); Keller v. Commonwealth, 
    719 S.W.2d 5
    (Ky. 1986) (defendant was drunk, speeding, and on the wrong side of the road); Renfro
    v. Commonwealth, 
    893 S.W.2d 795
     (Ky. 1995), overruled on other grounds .(defendant
    was drunk, speeding, on the wrong side of the road, and ran a red light); Estep v.
    Commonwealth, 
    957 S.W.2d 191
     (Ky. 1997) (defendant was under the influence of five
    different medications, -speeding, and passing in a no-passing zone near. a. curve in a
    two-lane highw11.y); Love v. Commonwealth, 
    55 S.W.3d 816
     (Ky. 2001) (defendant was
    drunk, speeding, and, upon seeing a police vehicle blocking the road, attempted to
    pass the police vehicle); Berryman v. Commonwealth, 
    237 S.W.3d 175
     (Ky. 2007)
    (defendant had trace amounts of Xanax in his system, was speeding, and was looking
    at a package of prescription pills in his passenger's lap); and· Sluss v. Commonwealth,
    
    381 S.W.3d 215
     (Ky. 2012) (defendant was under tjie influence of four medications,
    admitted using marijuana earlier in the day, was driving against the advice of the
    doctor who prescribed the medication, and was passing vehicles in a no-passing zone).
    In addition, this Court has rendered a plethora of unpublished opinions affirming
    similar cases.
    8
    striking a vehicle proceeding through the intersection, killing the driver. 
    174 S.W.3d 421
     (Ky. 2005).
    Wibbels contends that the above-noted caselaw indicates that a
    conviction of wanton murder involving unintentional vehicular homicides
    requires some form of aggravating conduct, such as intoxication, gun-fighting,
    gross inattentiveness, or racing. We noted in Brown that
    [t]he Commentary to KRS 507.020 is instructive as to what type of
    conduct might constitute aggravated wantonness: "Typical of
    conduct contemplated for inclusion in 'wanton' murder is: shooting
    into a crowd, an occupied building or an occupied automobile;
    placing a time bomb in a public place; cir derailing a speeding
    locomotive." KRS 507.020(1974 cmt.).
    Id. at 426. "Each of these examples involves an activity that poses a high risk
    to human life, undertaking in or directed toward a place where human beings
    are present; yet none of them requires intoxication." Id. Furthermore, none of
    them require anything more than the following:
    (i) homicidal risk that is exceptionally high; (ii) circumstances
    known to the actor that clearly show awareness of the magnitude
    of the risk; and (iii) minimal or non-existent social utility in the
    conduct. Such conduct plainly reflects more than mere awareness
    and conscious disregard of a substantial and unjustifiable risk of
    death. It manifests a high disregard for life and evinces what the
    common law chose to call a depravity of mind or heart.
    Brown, 975 S.W.2d at 924 (quoting Robert G. Lawson & William H. Fortune,
    Kentucky Criminal Law,§ 8-2(c)(2), at 322 (1998)).
    The homicidal risk of driving back and forth between oncoming traffic
    and the oncoming traffic's emergency lane is extremely high. While drivers are
    permitted to momentarily use the oncoming lane to overtake a slower moving
    vehicle in front of them, passing in the oncoming traffic's emergency lane is
    9
    never permitted. In fact, the emergency lane is the one placi: on the road where
    a driver, confronted with a dangerous situation, seeks safety from the other
    lanes of travel. However, when the driver finds, rather than safety, another
    vehicle driving head-on toward it at an excessive rate of speed, the homicidal
    situation we find here is likely to occur.
    Wibbels contends that he was not aware of the risk of driving in the
    oncoming traffic's emergency lane. "The question of whether an actor knew or
    should have known the result he caused was rendered substantially more
    probable by his conduct is an issue of fact." KRS 501.060. 'Phe jury heard
    testimony that, upon approaching an intersecting road while in the emergency
    lane, he missed James Belt's vehicle by feet. The jury could certainly infer
    from this near-miss that Wibbels, if not .aware prior to this near-miss, should
    have been aware that he could collide with another vehicle. The jury could also.
    infer that, by traveling a~ speeds of more than eighty miles per hour, Wibbels
    should have been aware that any collision was likely to result in the death of
    another.
    Wibbels arg1,1es that there was a social utility in his action: because he·
    could not return to ~is proper lane of travel, and traffic was oncoming, he was
    forced to move to the oncoming emergency lane to avoid striking the other
    vehicles head-on. However, the jury heard that: 1) Wibbels darted back and
    forth more than once between the oncoming traffic lane and the oncoming
    emergency lane; 2) he had multiple opportunities to return to his proper lane of
    travel; 3) he did not decrease his speed but increased it to overtake additional .
    10
    vehicles ahead of him; 4) he failed to come to a stop in the oncoming emergency
    lahe, despite ample opportunity to do so; arid 5) he stated to the first responder
    that he drove in the emergency lane because he was "late and in a hurry."
    Viewing this evidence in a light most favorable to the Commonwealth, a
    reasonable j,uror could find there was minimal, if any, social utility in his
    conduct.
    We hold that it would not be clearly unreasonable for a jury to find
    Wibbels guilty of wanton murder. For the preceding reasons, we affirm the
    trial court's denial of Appellant's motion for a directed verdict.
    B.    The trial court did not abuse its discretion by excluding evidence of
    the Thompson family's ill will toward Wibbels.
    During his case-in-chief, Wibbels testified to being remorseful. On cross-
    examination, the Commonwealth asked Wibbels about his remorsefulness:
    Commonwealth: You said you're remorseful.
    Wibbels: Yes.
    Commonwealth: Real bad. Mr.· Thompson has three children,
    three grandchildren and a wife.            ·
    Wibbels: Yes.
    Commonwealth: How many letters of remorse have you written
    them?
    Wibbels: None.
    Commonwealth: None. How many times have you picked up the
    phone and made a phone call and said, "I'm sorry"?
    At this point, Wibbels objected. At the subsequent bench conference,
    Wibbels's counsel informed the trial court that it wished to introduce testimony
    11
    that there was considerable animosity between Wibbels and Thompson's
    family, and that members of Thompson's family had attempted to assault
    Wibbels outside the courtroom. Wibbels intended to offer this testimony to
    explain why he had not written letters or made phone calls to the victim's
    family. The trial court denied Wibbels's request to introduce testimony of the
    family's animosity toward him and directed the Commonwealth to proceed:
    Commonwealth: Mr. Wibbels, you ever pick up the phone and
    say, "I'm sony he's not going to be there for Christmas or your
    birthday"?
    Wibbels: Excuse me?
    Commonwealth: .Did you ever pick up the phone and call one of
    them and say, "I'm sony he's not going to be there for your
    birthday. He's not going to be there for Christmas"?
    Wibbels: No, I have not done that.
    During his redirect, Wibbels's counsel again requested that the trial
    court permit him to introduce testimony that, prior to trial, members of
    Thompson's family surrounded Wibbels's vehicle in the courthouse parking lot
    and "beat, threw things on the truck, used profanity, and threatened to kill
    him." The trial court, again, denied WibbeJs's request. Wibbels then offered
    testimony by avowal that he did not send letters or make phone calls to
    Thompson's family because they had previousiy threatened hnn:. Wibbels now
    contends that the trial court's refusal to allow him to present the subject-
    testimony was an abuse of the court's discretion.
    The standard for reviewing questions of the admissibility of evidence is
    whether the trial court abused its discretion. Johnson u. Commonwealth, 105
    
    12 S.W.3d 430
    , 438 (Ky. 2003). "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.3d 941, 945 (Ky.
    1999).
    The trial court noted that the Commonwealth's line of questions
    regarding Wibbels's remorsefulness was proper because Wibbels had testified
    on direct that he was remorseful. Additionally, the trial court noted that
    Wibbels's requested testimony was more prejudicial.than probative. Under
    Kentucky Rule of Evidence (KRE) 401, evidence is relevant if it has "any
    tendency to make the existence of any fact that is of consequence to the
    , probable or less probable than it would be
    determination of the action more
    without the evidence." However, "[a]lthough relevant, evidence may be
    excluded if its probative value is substantially outweighed by the danger of
    undue prejudice, confusion of the issues, or misleading the jury, or by
    consideration of undue delay, or needless presentation of cumulative evidence.".
    KRE 403.
    The Thompson family's ill will toward Wibbels was irrelevant because the
    trial did not concern their state of mind. In fact, during the guilt phase of the
    trial, only Wibbels's state of mind at the time of the accident was at issue.
    '
    Whether Wibbels felt any remorse was an issue for the penalty phase. Thus,
    the Thompson family's ill will toward Wibbels did not have a tendency to make
    any material fact in the matter more or less probable. Additionally, Wibbels
    opened the door to that line of questioning when he testified to his
    I   •
    13
    remorsefulness on direct examination. He cannot thereafter complain that the
    Commonwealth walked through that door. Finally, we note that the jury
    recommended the minimum sentence; therefore, evidence of Wibbels's remorse
    or lack thereof did not result in any discernable prejudice. As such, any error
    by the trial court.was harmless.
    IV. CONCLUSION
    For the foregoing reasons, the judgment of the Laurel Circuit Court in
    this matter is affirmed.
    All sitting. All concur.
    COUNSEL FOR APPELLANT:
    Stefan Bing
    Gess Mattingly & Atchison, PSC
    William Gary Crabtree
    Crabtree & Goforth
    COUNSEL FOR APPELLEE:
    Andy Beshear
    Attorney General of Kentucky
    David Bryan Abner
    Assistant Attorney General
    14
    

Document Info

Docket Number: 2016 SC 000103

Filed Date: 8/28/2017

Precedential Status: Precedential

Modified Date: 8/30/2017