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Page v. Commonwealth11/18/2004
TO BE PUBLISHED
AFFIRMING IN PART AND VACATING IN PART
Appellant, Horace William Page, appeals as a matter of right from the final judgment of the Allen Circuit Court sentencing him to fifty-two (52) years imprisonment on two (2) counts of second-degree manslaughter, two (2) counts of first degree wanton endangerment, tampering with physical evidence, failing to render aid and assistance, and being a persistent felony offender in the second degree. The issues are whether the trial court erred when it admitted photographs of a deceased person and a telephone pole with brain matter on it, whether the trial court erred in denying Appellant's motion for directed verdict as to the charge of tampering with physical evidence, and whether the consecutive sentencing was contrary to KRS 532.110(1)(c) .
On the evening of September 23, 2001, Appellant was visiting Shawta Lynn Birge, his sister, at her home. Appellant's brother, two nieces, and roommate were also at the residence . At approximately 10:00 p.m., Appellant, his brother, Shawn Page, Shawta, and her two daughters left in Appellant's car to go to his home . Roger Martin, Appellant's roommate, drove separately .
Appellant had been drinking earlier in the evening . During the drive Appellant lost control of the car, skidded off the road, and struck a telephone pole . After the impact, Appellant pulled the unconscious Shawta out of the vehicle, and left the scene of the accident to seek help:
Appellant's roommate, Roger Martin, had been following Appellant . Martin saw Appellant's lights disappear, but thought that Appellant had turned around to get Shawta's daughter's medicine . Martin continued on his way home . When Appellant and his passengers did not show up, Martin became worried and returned to look for them . Martin found Appellant walking back toward the wreck after attempting to get help at a nearby residence . Martin left to find David Page, another of Appellant's brothers, and brought him to the scene of the accident.
Martin and David Page attempted to remove Shawn Page and Shawta's children from the rear seat of Appellant's car. Martin said that Bethany Birge, Shawta's daughter, had a skull that felt like an "egg shell," and that after touching it there was blood on his hands. David Page removed the children from the car, but was unable to remove his brother, Shawn Page.
Appellant was on probation from a previous felony conviction when the accident occurred . Martin told David Page that Appellant could "get five years" for being in trouble while on probation . David Page told Martin and Appellant to leave, and promised to tell the police that he had been driving Appellant's car when the accident occurred . After Martin and Appellant returned to their home, David Page remained at the scene and told the police that he had been the driver .
After arriving at home, Martin made two telephone calls to 911 . In his first phone conversation, Martin told the 911 operator that a third party had reported the accident to him . Martin stated later that he had lied to the 911 operator because he was afraid Appellant would get into trouble for driving under the influence . In his second call, after Appellant had cleaned off the dirt and blood from the accident from his body, Martin told the 911 operator that David Page had been driving Appellant's car when the wreck occurred .
Shawta and Bethany Birge were taken to Bowling Green Medical Center where they died in the early hours of Saturday, September 24, 2001.
During the accident investigation conducted by Allen County Deputy Sheriff Terry Beach and Kentucky State Police Trooper Dathan
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