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Brown v. Commonwealth6/16/2005
ristics (i) homicidal risk that is exceptionally high; (ii) circumstances known to the actor that clearly show awareness of the magnitude of the risk; and (iii) minimal or non-existent social utility in the conduct. Such conduct plainly reflects more than mere awareness and conscious disregard of a substantial and unjustifiable risk of death. It manifests a high disregard for life and evinces what the common law chose to call a depravity of mind or heart.
Brown v. Commonwealth, 975 S.W.2d 922, 924 (Ky. 1998) (quoting Robert G. Lawson & William H. Fortune, Kentucky Criminal Law, § 8-2(c)(2), at 322 (1998)).
The homicidal risk of entering an intersection against a red light at a high rate of speed is obviously high. Not every intersection is regulated by a red light. Presumably, such traffic control devices are installed at intersections where there is a high volume of traffic and for the purpose of preventing vehicles approaching from perpendicular directions from simultaneously entering the intersection and colliding. Appellant was aware of the magnitude of the risk. He admitted on cross-examination that he knew the light was red as he approached the intersection and that by entering the intersection against the red light, he disregarded the risk that another vehicle would be driving through the intersection at the same time. Appellant also admitted that he was aware of the risk that a resulting collision might kill the occupants of another vehicle. Finally, the social utility of Appellant's driving his vehicle into the intersection against the red light was nonexistent. He offered no excuse for his conduct. He was not, etc.., rushing a dying person to a hospital.
"Extreme indifference to human life" is also an element of the offense of wanton endangerment in the first degree. KRS 508.060(1). We recently held in Ramsev v. Commonwealth, 157 S.W.3d 194 (Ky. 2005), that a person acted under circumstances manifesting extreme indifference to human life by operating a motor vehicle while intoxicated with a passenger in the vehicle when, though he did not violate any statute other than KRS 189A.010(1), he also was observed accelerating away from a stop sign at a higher than normal rate of speed, and when signaled by a police officer to pull over, he turned off his lights before stopping. Id. at 198. Obviously, Appellant's conduct in this case exhibited a higher level of extreme indifference to the value of human life than that exhibited in Ramsev. Even if Appellant did not intend to run the red light, he was aware of and intentionally disregarded the risks that the light would not change in his favor before he entered the intersection, that if he ran the red light he might collide with another vehicle, and, if so, that persons might be killed.
Appellant points out that there was no evidence that he actually saw the Conklin vehicle as he approached the intersection. However, there was substantial evidence that the Conklin vehicle was readily visible to the other drivers on Pembroke Road, including Kaylor, and evidence from which the jury could infer that the reason Appellant failed to see it was because he was watching television instead of the approaching traffic.
Appellant argues that if this evidence is sufficient to support a wanton murder conviction, then every traffic violation will be converted into a charge of wanton endangerment, as any violation will necessarily involve extreme indifference to human life. We disagree. In Johnson v. Commonwealth, 885 S.W.2d 951 (Ky. 1994), we held mere evidence that the defendant entered an intersection against a red light to be insufficient to support a wanton murder conviction. Id. at 953 ("Evidence was introduced. .
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