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Brown v. Commonwealth6/16/2005
d 102 (Ky. 1991) overruled on other grounds (B.A. of.297 plus high rate of speed, collision across center line); Keller v. Commonwealth, 710 S.W.2d 5 (Ky. 1985) (intoxicated driver ran head on into victim's car at high rate of speed in wrong lane); Hamilton v. Commonwealth, 560 S.W.2d 539 (Ky. 1978) (ran red light at high rate of speed in drunken condition).
The one exception was Graves v. Commonwealth, 17 S.W.3d 858 (Ky. 2000). Astonishingly, Graves involved a "running gun battle" during a car chase over a bad drug deal at upwards of over 100 miles per hour through a red light, broadsiding another vehicle, killing the occupants. Even so, the "wanton murder" elements in Graves, were only held to have been satisfied under the tenets of Bennett v. Commonwealth, 978 S.W.2d 322, 326-328 (Ky. 1998), a doctrine similar to "transferred intent." "Thus viewed, the high speed chase and the exchange of gunfire were but circumstances involved in the method of `perpetration or attempted perpetration' of the ongoing drug transaction (citations deleted); and that conduct provided the element of aggravated wantonness necessary to convict all three Appellants of the wanton murders. .." Graves, supra, at 863. Obviously, the facts in this case do not meet the culpability level of a high speed gun battle through a red light during a failed drug deal; nor is there evidence of "criminal intent" sufficient to transfer under the standards of Bennett or Graves.
Looking next at charges of second degree manslaughter, intoxication still predominates historically as a common element. Tucker v. Commonwealth, 2003 WL 23095746 (Ky. App.) (evidence of intoxication, racing and head on collision); Commonwealth v. Mahoney, 1992 WL 5597 (Ky. App.), (drunk killed 27 people in a drunken stupor hitting a bus going the wrong way); Newcomb v. Commonwealth, 124 S.W.2d 486, 488 (Ky. 1939) (pre-penal code - convicted of voluntary manslaughter - "it may be said here that the defendant, in a rattle-trap automobile, was out on a wild party on this Saturday night. All of them were intoxicated. There were four in the driver's seat and two in the rumble").
However, in charges of reckless homicide, you start to see more cases where intoxication was not a factor. Burchett v. Commonwealth, 98 S.W.3d 492 (Ky. 2003) (ran a stop sign causing death - no direct proof of intoxication - but was reversed to exclude statements of habitual daily use of marijuana); Commonwealth v. Alexander, 5 S.W.3d 104 (Ky. 1999) (police officer doing 95-100 miles per hour through intersection with emergency lights after emergency had been called off and canceled - hit and killed motorist, no alcohol or drugs involved - conviction of reckless homicide affirmed); Commonwealth v. Harrel, 3 S.W.3d 349 (Ky. 1999) (intoxicated while driving 50 miles per hour in a 35 mile per hour zone - ran red light and hit vehicle killing passenger); Commonwealth v. Runion, 873 S.W.2d 583 (Ky. App. 1994) (drinking driver hit turning vehicle); Jones v. Commonwealth, 830 S.W.2d 877(Ky. 1992) (defendant, while driving under the influence of alcohol struck another vehicle injuring a fetus who died fourteen hours after delivery); Williams v. Commonwealth, 445 S.W.2d 446 (KY. 1969) (drag racing killed motorcyclist, convicted on involuntary manslaughter and 1 year sentence. Drugs and alcohol were not involved). Rouse v. Commonwealth, 303 S.W.2d 265, 266 (Ky. 1957) ("smell of alcohol on Appellant was pretty strong after the accident").
Moreover, the majority opinion embraces the language of KRS 507.020(1)(b), as supporting their affirmance. Yet, in reality, there is no support there as a majority of this Court, right after the enactment of KRS 507.020(1)(b), noted its intent. "
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