Brown v. Commonwealth6/16/2005
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Lambert, C.J.; Cooper, Graves, Johnstone, Scott, and Wintersheimer, JJ., sitting. Lambert, C.J.; Graves, Johnstone, and Wintersheimer, JJ., concur. Scott, J., concurs in part and dissents in part by separate opinion.
OPINION BY JUSTICE SCOTT CONCURRING IN PART AND DISSENTING IN PART
While I agree with the majority on the issues of "alleged juror misconduct" and "unpreserved issues," I respectively dissent on the sufficiency of the evidence to support the "wanton murder" charges.
"In our dedication to severely punish. .. drivers who kill, a dedication which I share, we have grown indifferent to the difference between murder and manslaughter, an indifference which I do not share." Bush v. Commonwealth, 839 S.W.2d 550, 558 (Ky. 1992). (Leibson, J., dissenting). "I concede that fatal carelessness in the operation of a motor vehicle calls for stern punishment, but murder is something else. There simply is a difference in culpability between committing an act that endangers people whose presence is known and an act that endangers people whose presence should be anticipated, but in fact is not known." Hamilton v. Commonwealth, 560 S.W.2d 539, 544 (Ky. 1978), (Palmore, C.J., dissenting).
In this case, Demond Brown " oes not fit the description of wanton murderer absent further circumstances indicating a heedless disregard for victims he is consciously aware of." Bush, supra, (Leibson, J., dissenting). "By virtue of the. ..opinion in this case. ..the distinction between wanton murder and reckless homicide will be lost." Ester) v. Commonwealth, 957 S.W.2d 191,194 (Ky. 1997) (Lambert, C.J., dissenting). Why?
Around 10:00 p.m., on January 15, 2002, 19 year old Demond Brown (Brown) was returning home with his younger brother and girlfriend. He had just picked up his girlfriend, Laticia Leavell, from her job at Meritor in Hopkinsville, Kentucky, where he also worked. Leaving the Meritor parking lot, he pulled out on Pembroke road, which is a four-lane highway with a speed limit of 55 miles per hour. He then traveled six-tenths of a mile from the parking lot to the intersection of Pembroke and Martin Luther King Jr. Parkway (the By-Pass).
Credible evidence, both from witnesses, as well as the investigating officers, established his speed on Pembroke road between 60 and 65 miles per hour. Then, as he approached the intersection, he saw he had a red light. He took his foot off of the gas peddle, but then glanced over and saw what he thought was the opposing lights go yellow to red. Mistakenly believing his light would now turn green, he drove on into the intersection. In fact, his light remained red and he struck another car, killing Debra Conklin and her daughter, Megan.
The majority concedes there was no evidence introduced at trial indicating either Brown, or his passengers, ever saw Ms. Conklin's vehicle and that the " nference that Brown did not see the impending collision was reinforced by the fact that his vehicle left no skid marks on the road prior to the point of impact." Moreover, all parties concede no drugs or alcohol were involved.
Yet, Brown was convicted of two counts of "wanton murder" and two counts of wanton endangerment, 1 St degree, and was sentenced to 20 years each on the wanton murders and 1 year each on the wanton endangerments, all to run concurrently for a total of 21 years. Pursuant to KRS 439.3401(3), he will not be eligible for. parole until he has served 17 years of his sentence. He will then be near 40 years old. Prior to this tragic event, he had a job, owned a car and was never in trouble, other than a couple of traffic tickets.
Evidence at trial suggested (but never said)
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