Opinion
NO. 2013-CA-000124-MR
07-18-2014
TIFFANY PITTMAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Shannon Dupree Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MARSHALL CIRCUIT COURT
HONORABLE DENNIS R. FOUST, JUDGE
ACTION NO. 11-CR-00144
OPINION
AFFIRMING
BEFORE: CLAYTON, COMBS, AND STUMBO, JUDGES. COMBS, JUDGE: Tiffany L. Pittman appeals her convictions for second-degree manslaughter, first-degree wanton endangerment, and driving under the influence. The Marshall Circuit Court sentenced her to fifteen-years' imprisonment. On appeal, Pittman contends that the jury was not properly instructed and that the evidence was insufficient to support her convictions for manslaughter and wanton endangerment. She also argues that the trial court abused its discretion by refusing to reschedule the trial and by failing to grant her motion for a change of venue. After our review, we affirm.
The series of events underlying Pittman's criminal convictions culminated in a car crash on Highway 68 in Marshall County on August 15, 2011. The following facts are undisputed: Pittman was driving her passenger, Holly Hiett, to Paducah when another motorist, Wanda Vaughn, became alarmed by Pittman's reckless driving and by her passenger's agitated movement in the front seat of the vehicle. Vaughn observed Pittman's vehicle cross the center line, and she became increasingly concerned for her own safety on the roadway. Vaughn detoured from her trip home in order to avoid Pittman's approaching vehicle.
Jimmy Harper, another motorist on the roadway that evening, was driving to work. As he talked with his son, Dallas, on his mobile telephone, Harper exclaimed, "Oh, my God!" Following a brief pause, Dallas heard his father scream an expletive before the connection was immediately lost. Dallas was unable to get another call through. Pittman's vehicle had veered sharply into the path of Harper's pickup truck, and the vehicles collided.
Shortly after reaching her home, Vaughn heard sirens approaching along the highway. Suspecting that the vehicle that she had just encountered had crashed, Vaughn drove to the scene and observed that Pittman's vehicle was indeed involved in the collision. Vaughn provided a detailed statement to investigators regarding her observations of Pittman's erratic driving just minutes before the collision.
Hiett, Pittman's passenger, was transported to the hospital, and was diagnosed with a broken scapula and cracked ribs. Her blood alcohol concentration was .311. She was hospitalized for a week. She could not recall the vehicle crash or being taken to the hospital.
Pittman was also transported to a hospital where she was treated for minor injuries. Eric McKinney, a nurse in the emergency room, testified that Pittman told him that she had consumed vodka that day. Her blood alcohol concentration at the time of the accident was estimated to be between .09 and .11. Pittman's blood sample also indicated the presence of Fluoxetine (Prozac), Diazepam (Valium), and Nordazepam -- substances for which she had prescriptions but which likely impaired her ability to drive safely. Pittman testified that she did not recall the collision. She did recount that Hiett had become belligerent through the course of the day and had begun to "act cocky" before the two left in the car.
Jimmy Harper was declared dead at the scene.
Deputy Nathan Maxlo, Marshall County Sheriff's Department, testified that Pittman indicated to him that she had consumed three or four beverages known as Four Loko before driving the vehicle. Deputy Maxlo recovered a can of the beverage from the scene. Pittman indicated to Maxlo that she could not remember the events leading up to the crash.
Four Loko, a carbonated, caffeinated, alcoholic beverage, commonly known as "black out in a can," was available until April 2014 when the company behind its distribution reached a settlement with 20 state attorneys general that included eliminating caffeine from the beverage. The state attorneys general alleged that the company had failed to alert consumers to the dangers of combining caffeine and alcohol, resulting in the hospitalization of many under-age consumers. Given its volume and alcohol content, one Four Loko canned beverage could be equivalent to the consumption of four to six beers.
On September 8, 2011, Pittman was indicted by the grand jury on charges that included murder, first-degree assault, and driving under the influence. At arraignment, Pittman pleaded not guilty. A jury trial was scheduled to begin in August 2012. The case was continued until December 4, 2012, due to the discovery of a misplaced expert witness report by the Commonwealth.
At a hearing on a motion conducted on November 5, 2012, the defense requested the court to reschedule the trial again in light of lead counsel's cancer diagnosis; counsel indicated that he would be undergoing radiation therapy on the anticipated trial date. The trial court denied the motion. The defense motion for a change of venue was denied as well.
The trial commenced as scheduled. After the presentation of the Commonwealth's case-in-chief, the defense moved for a directed verdict; the Commonwealth moved to amend the assault charge to wanton endangerment. The trial court granted the motion to amend but denied the motion for directed verdict. Following the presentation of the defense and closing statements, the jury convicted Pittman of second-degree manslaughter, first-degree wanton endangerment, and driving under the influence. The court's judgment was entered on December 21, 2012. This appeal followed.
For purposes of our analysis on appeal, we have re-ordered the points of error presented in Pittman's brief. Pittman contends that the court abused its discretion by failing to grant her request for a continuance and by failing to grant her motion for a change of venue. She also argues that the trial court erred by failing to direct a verdict with respect to the charges of second-degree manslaughter and wanton endangerment and by failing to instruct the jury properly. After our review, we disagree with each of her contentions. We shall address them one at a time.
Pittman contends that the trial court abused its discretion by refusing to reschedule the trial in order to accommodate lead counsel's schedule for medical treatment. While the Commonwealth contends that this allegation of error is unpreserved for our review, we disagree and believe that it has been adequately preserved.
Trial courts weigh a wide variety of factors when faced with a motion to continue, which include: the resulting length of delay; the circumstances of any previous continuances granted; the inconvenience to litigants, witnesses, counsel, and the court; the anticipated complexity of the case to be tried; and consideration of whether denying the request will lead to identifiable prejudice. Edmunds v. Commonwealth, 189 S.W.3d 558 (Ky. 2006). We review a trial court's ruling on a motion to continue for abuse of discretion. Fredline v. Commonwealth, 241 S.W.3d 793 (Ky. 2007).
Our review of the hearing conducted on November 5, 2012, indicates that the trial court considered each of the factors discussed above. Most important, perhaps, was the candid acknowledgement of Pittman's counsel that although the charges were very serious, the matter was not factually or legally complex. Lead counsel indicated that he had developed a close working relationship with Pittman and that he wanted to continue to perform the bulk of the work connected with her representation. Nonetheless, the trial court was not convinced that a continuance was necessary under the circumstances.
This hearing concerned Pittman's failure to abide by strict provisions permitting her access to out-patient treatment during her detention.
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Having examined the video record of the trial, we agree that the proceedings were relatively straight-forward. We are not persuaded that lead counsel's performance was impaired in any way by the trial court's decision to conduct the trial as scheduled. To his credit, the quality of Pittman's representation was plainly not affected by lead counsel's condition or treatment schedule. Furthermore, the record demonstrates that second-chair counsel effectively participated in the defense. During the guilt-innocence phase, Pittman's counsel team engaged in aggressive and informed cross-examination of the Commonwealth's witnesses. They conducted a meaningful direct examination of the defense witnesses, including Pittman; and they presented an effective closing argument to the jury. We are satisfied that Pittman was not prejudiced by the trial court's refusal to reschedule the proceedings and that the trial court did not abuse its discretion. Reversal is not warranted on these issues.
Next, Pittman contends that the trial court abused its discretion by failing to order a change of venue. She maintains that adverse pre-trial publicity made it nearly impossible to empanel a fair and impartial jury. After reviewing the proceedings, we again are not persuaded that the trial court abused its discretion by refusing to order a change of venue.
A change of venue is appropriate where it appears that "public opinion is so aroused as to preclude a fair trial." Kordenbrock v. Commonwealth, 700 S.W.2d 384, 387 (Ky.1985), cert. denied, 476 U.S. 1153, 106 S.Ct. 2260, 90 L.Ed.2d 704 (1986). A change of venue may be warranted where unfair prejudice to the defendant is so pervasive that it may be clearly implied from the totality of the circumstances. Jacobs v. Commonwealth, 870 S.W.2d 412 (Ky.1994). The trial court is afforded wide discretion in determining whether a change of venue is necessary. Hurley v. Commonwealth, 451 S.W.2d 838 (Ky. 1970). We may not disturb the trial court's decision on appeal absent a clear abuse of its discretion.
Having reviewed the entirety of voir dire, we are satisfied that the trial court empanelled a fair and impartial jury. Before counsel questioned the prospective members of the jury panel, the trial court conducted a thorough voir dire. Its questioning on the issue of pretrial publicity was extensive and involved social media outlets and online reports - as well as traditional sources of media coverage. Despite the extensive publicity, there was no indication that a feeling of animosity or prejudgment pervaded the community. The prospective jurors who indicated that they had formed an opinion as to Pittman's guilt or innocence as a result of exposure to media coverage were readily excused from service. The individuals selected for the jury were duly qualified. A change of venue was unnecessary. Consequently, we cannot reverse on this basis.
Next, we address Pittman's contentions that the Commonwealth failed to meet its burden of proving beyond a reasonable doubt that she acted so wantonly as to support the conviction for manslaughter in the second degree and that her conduct manifested an extreme indifference to the value of human life so as to support an adjudication of wanton endangerment in the first degree. We disagree with each of these contentions.
A person is guilty of manslaughter in the second degree when he/she "wantonly causes the death of another person, including, but not limited to, situations where the death results from the person's . . . [o]peration of a motor vehicle . . . ." Kentucky Revised Statute(s) (KRS) 507.040. On appeal, we must decide whether the jury was clearly unreasonable in convicting Pittman in light of the evidence introduced at trial.
Pittman argues that no reasonable jury could have found her guilty of manslaughter in the second degree because the Commonwealth did not present proof sufficient to show that she acted wantonly. She argues that there was no evidence -- either direct or circumstantial -- that she perceived the nature of the risk of harm that she undertook by driving a highly intoxicated and belligerent passenger under the circumstances of this case.
A person acts "wantonly" with respect to a result when he/she "is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists." KRS 501.020(3). The risk described "must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation." Id. With respect to the effect of voluntary intoxication, the statute provides that one "who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts wantonly with respect thereto." Id.
While neither Pittman nor Hiett could recall the events that occurred immediately before the collision, Pittman testified that Hiett had become belligerent and cocky as they continued to consume alcohol that day. As a result, Pittman had some sense that a fight would likely break out between them. Still she decided to drive to Paducah. Despite Hiett's unpleasant disposition and the growing uneasiness between the women, Pittman decided that she did not want to leave Hiett alone; so she took her along in the car. Pittman did testify that she was well aware of the risk of driving while she was impaired.
There was no testimony as to what exactly transpired in the front seat of Pittman's vehicle, but uncontroverted evidence offered by Wanda Vaughn indicated that Hiett was "all up in the front seat" and that Pittman was driving the vehicle erratically. Pittman admitted that she had consumed prescription medications along with the alcohol. She also admitted that there were places where she could have pulled the car off the roadway prior to the collision so as to minimize the effect of any unruly conduct of her passenger upon her ability to drive safely. There was no dispute that Pittman's vehicle crossed the center line and crashed into Harper's vehicle, killing him.
The Commonwealth's proof was wholly sufficient for the jury to conclude that Pittman was aware of and consciously disregarded a substantial and unjustifiable risk to others on the highway. Her disregard for the very real and grave risk posed by the circumstances constituted a gross deviation from the standard of conduct that a reasonable person would have observed in the situation. Only her intoxication could have made her unaware of the substantial and unjustifiable risk that her conduct created and, pursuant to the statute, Pittman's intoxication did not relieve her of responsibility. In light of the evidence, it was not clearly unreasonable for the jury to convict Pittman of second-degree manslaughter.
Nor was it clearly unreasonable for the jury to convict Pittman of wanton endangerment in the first degree. One is guilty of wanton endangerment in the first degree when, "under circumstances manifesting extreme indifference to the value of human life, he wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person." KRS 508.060.
Pittman does not challenge the jury's finding that her conduct created a substantial danger of death or serious physical injury to her passenger. Instead, she argues that the jury could not reasonably have found that her conduct manifested an extreme indifference to human life so as to constitute wanton endangerment because the jury declined to convict her of murder with respect to the death of Harper on these very facts. We disagree.
In Commonwealth v. Harrell, 3 S.W.3d 349 (Ky. 1999), the Kentucky Supreme Court rejected a per se, blanket prohibition against inconsistent verdicts. The Court determined that such an approach would unduly restrict the right of the jury "to consider the evidence broadly and convict or acquit based upon its view of the evidence pertaining to each charge." Id. at 351. The Court rejected the type of rigid, analytical precision that would be required and which would not permit the jury flexibility to exercise lenity based upon the circumstances. When viewed independently with respect to each verdict, the evidence was sufficient to support them both. Reversal is not warranted.
Finally, we address Pittman's contention that the trial court erred by failing to provide the jury with a definition of "criminal causatioin" in its instructions. The Commonwealth argues that such a definition was unnecessary and, therefore, improper for purposes of this appeal.
Pittman argues that the evidence at trial was sufficient to support her contention that she was not impaired, that she was not driving at an excessive rate of speed, and that she was driving in her lane of traffic when "something" caused her to turn the steering wheel sharply into Harper's lane of traffic. Pittman argues that "[t]his 'something' was actually her passenger, Holly." Brief at 11. She contends that the trial court erred by refusing to instruct the jury that wantonness cannot be established where the result of the conduct at issue is not within the risk of which the actor is aware.
The Commonwealth counters by arguing that her reasoning is wholly flawed because neither Pittman nor Hiett remembers the circumstances that precipitated the crash. It argues that Pittman's speculation regarding Hiett's role in the collision was not supported by the evidence and did not justify the instruction that Pittman sought. We agree. Crashing into oncoming traffic is indisputably within the ambit of risk of continuing to drive while impaired. The testimony did not support a finding that Pittman was not impaired. Whether she was also distracted or hindered by an unruly and intoxicated passenger was immaterial in light of the fact that her judgment and ability to drive safely were impaired by the consumption of alcohol and prescription drugs. Based upon Kentucky's preference for bare-bones jury instructions, the tendered instruction was unnecessary. Reversal is not required on the basis of its omission.
We affirm the judgment of conviction.
ALL CONCUR. BRIEF FOR APPELLANT: Shannon Dupree
Department of Public Advocacy
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky