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Bush v. Commonwealth of Kentucky9/24/1992
Opinion OF THE COURT BY JUSTICE LEIBSON
Terry Bush was convicted of wanton murder, four counts of first-degree assault, driving under the influence , and driving on a suspended license. He was sentenced to thirty years on the murder conviction, and lesser penalties on the others to run concurrently.
These convictions resulted from a motor vehicle collision which occurred September 23, 1990, and resulted in killing the driver of the other vehicle, Delbert Wayne Coakley, who was a well known figure involved in stock car racing, and injuring Coakley's wife and the two friends sharing his vehicle, and injuring defendant's girlfriend, Connie Wilson, who shared appellant's car.
Appellant was returning with Connie Wilson, now his wife, from a company bus trip to a football game in Louisville. This involved returning by bus to Madisonville, where they picked up the appellant's car. Admittedly defendant consumed alcohol on the bus. His defense was based principally on his evidence that Connie Wilson, not the appellant, was driving the car. At the beginning of trial Connie Wilson was prepared to be called to the stand by appellant's counsel and to testify to that effect. Indeed, in support of a pretrial Motion to Dismiss, which the trial court denied, appellant had filed Connie Wilson's affidavit stating she was driving and stating defendant was the passenger at the time the accident occurred. But, when she was confronted by the police, the prosecutor, and then the trial Judge with possibly dire consequences to herself if she testified for the appellant, she refused to testify about this matter.
The case against the appellant consisted largely of a .13% blood alcohol reading and physical evidence at the scene pointing to defendant rather than Connie Wilson as the driver, and of statements police testified Connie Wilson made to them the night of the accident indicating appellant was the driver.
On appeal, the principal reasons offered by the appellant as to why these convictions should be reversed were as follows:
1) Appellant was denied a continuance in the face of prejudicial pretrial newspaper publicity in the major newspaper circulated locally; namely a lead article which appeared on the day of trial, instigated, or at least aided and abetted by the prosecutor, discussing the charges against the appellant at length, condemning DUI and its consequences and calling for severe punishment, and making reference to the recently tried, widely publicized Larry Mahoney/Carrollton school Bus crash case, discussing the present case in that context.
2) Police and the Commonwealth Attorney, supported by the trial court's rulings and comments: (a) first, so intimidated Connie Wilson with the threat of perjury charges if she testified she was the driver, and murder prosecution if such testimony resulted in appellant's acquittal, that she refused to testify; and (b) then, when Connie Wilson "took the Fifth," used statements she made to police pointing her finger at the appellant as the driver as evidence against appellant, while denying the appellant the use of Connie Wilson's affidavit admitting she was behind the wheel.
Secondary issues include:
3) Evidence admitted from results of a urinalysis performed on the appellant in the hospital revealing traces of marijuana and amphetamines, as to which the testifying chemist could attribute neither an amount sufficient to cause any impairment nor a time framework relating to the accident.
4) Evidence admitted from a police officer on accident reconstruction, beyond his expertise.
5) Improper remarks in final arguments in
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