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Bush v. Commonwealth of Kentucky9/24/1992
o kill, a dedication which I share, we have grown indifferent to the difference between murder and manslaughter, an indifference which I do not share.
"A person does not, per se, have the required mens rea for wanton murder because he undertakes to drive a motor vehicle after he has been drinking alcohol passed the point where he is under the influence. He is then not fit to drive, but he does not fit the description of wanton murder absent further circumstances indicating a heedless disregard for victims he is consciously aware of." Walden, supra at 109.
Combs, J., joins. Stephens, C.J., joins that portion discussing the urinalysis.
ING OPINION BY JUSTICE WINTERSHEIMER
I respectfully Dissent from the majority opinion because calling Connie Wilson to testify was not reversible error and the refusal to grant a continuance because of alleged pretrial publicity was not an abuse of discretion.
The question of whether Connie Wilson, now Bush, was properly called as a witness for the prosecution was not properly preserved for appellate review. RCr 9.22. After the prosecution called Connie Wilson, but before she began testifying, the trial Judge was advised at a conference in chambers that she wished to invoke her Fifth Amendment right not to testify. Wilson did testify and the defense never objected to her invoking the Fifth Amendment privilege. The defendant cannot fail to object at trial and then raise the issue on appeal. Pack v. Commonwealth, Ky., 610 S.W.2d 594 (1981). It is interesting to note that defense also called Wilson as a witness knowing that she was going to invoke her privilege. If the prosecution could not call the witness, then neither could the defense. Cf. Clayton v. Commonwealth, Ky., 786 S.W.2d 866 (1990).
The majority opinion makes much of the fact that the defendant was unfairly prejudiced. We cannot accept this kind of speculation in view of the actual case. Wilson gave two statements. She told the officer at the hospital she was not driving. Several months later, after Bush was indicted, she signed an affidavit stating that she was driving. At trial, after she discovered that she had a blood alcohol content of .10, she refused to comment in any way. In any event the defendant was allowed to cross-examine the witness. Her medical record was introduced in which she stated that she was driving. The defense called her as a witness. The same information that she refused to answer as the prosecution's witness could easily have been obtained on cross-examination.
The testimony of the first witness on the scene in this case is very compelling. He stated that when he approached the accident, he saw Bush lying cross-ways on the seat with his feet under the pedals and the steering wheel on top of his knees. Another witness stated that he saw a female in the passenger seat when he approached the accident and saw Bush in the driver's seat. He also said he saw the female get out of the car. Bush's defense was that Bush, who had a blood alcohol of .13, was not driving. Yet his only witness changed her story. He testified that she was driving. Even the defendant's appellate counsel questions the soundness of the defense strategy. Clearly, the jury was not impressed by the defense approach because they found him guilty on all counts and recommended a sentence of 30 years.
There was no abuse of discretion by the trial Judge when he refused a continuance made orally at the morning of trial because of an article in an Owensboro newspaper about the trial. The trial Judge has broad discretion in the conduct of any trial. Veach v. Commonwealth, Ky.,
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