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Brown v. Commonwealth6/16/2005
drivers inclination to take `one or more [drinks] for the road,' increases the vehicular death rate on the highways of this Commonwealth. A majority of the members of this Court of the opinion that the legislature enacted KRS 507.020(1)(b), to deter such conduct. The legislature is commended for taking such a giant step forward. Its actions in enacting this statute will do much to decrease vehicular highway deaths by persons operating an automobile while under the influence of intoxicants." Hamilton v. Commonwealth, 560 S.W.2d 539, 544 (Ky. 1978).
Then later, consistent with Hamilton, we put another brake on the use of "wanton murder" in vehicular homicide cases (not involving intoxicants) by our decision in Johnson, su ra. In Johnson, a heavily loaded coal truck drove through a red light at an intersection on US 23 in Floyd County, striking and killing the occupant of another vehicle. The speed limit on US 23 was 55 miles per hour but the speed of the coal truck was undetermined. In Johnson, we said "no evidence was introduced by the Commonwealth of extreme speed or even that the Appellant was exceeding the legal speed limit. Evidence was introduced that the Appellant was not operating the coal truck under the influence of drugs or alcohol;. .." Johnson at 953. Citing Hamilton and Walden, cases in which conduct involved both "extreme rates of speed" and "intoxication," we said "there is a noted absence of these factors in the case at hand. This Court has held that a conviction of wanton murder is reserved exclusively for offenders who manifest virtually no concern for the value of human life." Johnson at 952. If we are now going to leave this road of legal precedent, let's do it intentionally and with knowledge we're leaving - let's don't just drift off inattentively.
And while I agree "the decision as to whether the aggravated circumstances (of extreme indifference to human life and grave risk of death to another) were present is best left up to the jury to decide," Cook v. Commonwealth, supra at 363, there are times, as in Johnson, when we have to have the courage to draw the line. Most prosecutors do not want authority to use "wanton murder" charges under circumstances such as this. However, being realists, they must respond to pressures from the public to do something about a particular case. That pressure is greatest where the "results" of the conduct are the most tragic as in this case. Thus, if we open the "flood gate" on "wanton murder" prosecutions in vehicular homicide cases where there is no evidence of intoxicants, or other terrible circumstances more akin to intentional conduct like Graves (the "running gun battle" over the failed drug deal), then prosecutors will be forced to use the charge more and more. Why should they have to stand alone in their communities, resisting the pressures of the public (and the press), when the consequences of an incident are indeed terrible, aside from questions of the degree of culpability of the participants. They look to us too - and we should not set down our burden so lightly.
That the conduct of the defendant in this case may have been "wanton" is certainly debatable; that the conduct manifested "an extreme indifference to the value of human life" is not. "To explode a barrel of gun powder in a crowded street, and kill people is murder, although the actor hopes that no such harm will be done. But to kill a man by careless riding in the same street would commonly be manslaughter." Justice Holmes, Holmes, the Common Law p. 60. The maximum sentence for a "wanton" act of "second degree manslaughter" is 10 years, not 20 to life. "All we know who lie in jail - are that the walls are strong - and each day is like a year - a year whose da
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