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PuRsuANT ToJHE RuLEs oF clvlL PRocEDuRE
PRoMuLGATED Bv THE suPREME couRT, cR 76-.28(4)(c),
THls 0PlNloN ls NoT To BE PuBLlsHED AND sHALL NoT BE
clTED 0R usED As BlNolNc-i PREcEDENT INl ANY oTHER
cAsE lN ANYcouRT oF THls sTATE; HowEvER,
uNPuBLlsHED KENTuch APPELLATE DEclsloNs,'
RENDERED AFTER JANuARY 1, 2003, MAv BE clTEo FoR
coNleERATloN BY TH_E couRT lF THERE ls No PuBLlsHED
0Pl=NloN THAT WouLD ADEQuATELY ADDREss THE lssuE _
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BY THE couRT sHALL BE sET ouT As AN uNPuBLlsHED
nEclsloN lN THE FILED DocuMENT AND A con oF THE
ENTIRE DEclsloN sHALL BE TENDERED ALoNG wlTH THE
DocuMENT To THE couRT AND ALL PARTlEs To THE
AchoN,

RENDERED: JUNE 15, 2017
NOT TO BE PUBLISHED

Supireme Tnurt of Benim:kg

20 16-SC-OOO 127-MR
SHAUN HILES ' APPELLANT

ON APPEAL FROM GRANT CIRCUIT COURT
V. HONORABLE GREGORY M BARTLETT, SPECIAL JUDGE
NO. l4-CR-00213

COMMONWEALTH OF KENTUCKY l APPELLEE

MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Shaun E. Hiles, appeals from a judgment of the Grant Circuit
Court convicting him of two counts of murder and two counts of first-degree
Wanton endangerment AS a result of these convictions Appellant was
sentenced to imprisonment for life Without the possibility of parole on each of
the two murder convictions and to a term of imprisonment for five years on

each Wanton endangerment charge.1

 

1 The judgment reflects that the Wanton endangerment sentences are to be
served consecutive to_ one another. The judgment is silent with respect to the running
of the life sentences. However by operation of law, such sentences run concurrently
with other simultaneously imposed sentences. “[N]o sentence can be ordered to ru`n
consecutively with such a life sentence in any case, capital or non-capital.” Bedell v.
Commonwealth, 870 S.W.2d 779, 783 (Ky. 1993). '

As grounds for appellate relief, Appellant raises the following six
arguments: (1) the Comrnonwealth elicited inadmissible opinion testimony
concerning whether he was acting under extreme emotional disturbance (EED)
at the time of the shootings; (2) he was prejudiced by improper testimony
describing him as being upset and cursing in the hours preceding the crime;
(3) the prosecutor engaged in improper closing arguments by misstating the
applicable EED law and arguing facts not in evidence; (4) he was unduly
prejudiced during the penalty phase of the trial by misleading jury instructions
and arguments of the prosecutor suggesting that if an aggravating factor was
found, the only authorized sentences were life without parole or life without
parole for twenty-five years; (5) the evidence was insufficient to convict on the
wanton endangerment charges; and (6) the convictions on the two wanton
endangerment charges are barred by double jeopardy because they merged into
the murder convictions
Only the sixth allegation of error was preserved for-appellate review; for
n all other alleged errors Appellant seeks palpable error review under RCr 10.26.

For the reasons explained below, we affirm all of the convictions

I. FACTUAL AND PROCEDURAL BACKGROUND

In the weeks preceding the deaths of Nicole'Hiles and Larry Whiteker, .
Appellant and Nicole experienced serious marital discord and their fifteen-year
marriage was in jeopardy.l Nicole became romantically involved with Whiteker.

Evidence presented at trial demonstrated that Appellant was very upset about

that and that he was preoccupied with their relationship to the extent that he
monitored their whereabouts

After Nicole moved out of the marital residence, Appellant threw her
belongings onto the lawn and challenged her to come retrieve them. Police were
called to keep the peace. Appellant also posted social media messages stating
that he had discovered that Nicole was seeing someone else and that “the war

39

has began. On the day of` the crimes, Appellant sent intimidating text
messages to Nicole. He removed the door handles from Nicole’s car and

' challenged her to come get them. He also made hostile statements about the
situation to others Also on that day, Nicole sought an emergency protective
order against Appellant. That evening, Nicole met Whiteker at his workplace
and the two left together in Whiteker’s truck. At about the same time,
Appellant was seen speeding and driving recklessly in his SUV.

A short time later, witness Deborah Collins came upon the scene of the
crimes She found Appellant’s SUV, with smoke coming from its engine,
crashed into the rear passenger’s side of Whiteker’s truck. Appellant stood on
the ground near his truck, wounded but alive. Collins could see the bodies of
Nicole and Whiteker slumped over inside of the truck; both were dead of
gunshot wounds Collins called 911 and while she was on the phone with the
dispatcher, Appellant told her, “I killed my wife [and] l shot the homewrecker in
there.” I-Ie also told Collins that he had shot himself. Before being taken to the

hospital for treatment, Appellant admitted to police that he had killed Nicole

and Whiteker.

Investigators concluded that Appellant had crashed his vehicle into the
rear quarter panel of Whiteker’s pickup, forcing it to spin around and come to a
stop. The Commonwealth theorized that Appellant then fired several shots at
Nicole and Whiteker, killing them before shooting himself twice, once in the left
side of his chest and once in the abdominal area. Appellant survived the self-
inflicted wounds, however his colon was destroyed and he has a permanent
oolostomy.

Appellant was charged With two counts of murder, a capital offense,2 and
two counts of wanton endangerment, a Class D felony. Appellant does not
deny that he fired the shots that killed his wife, Nicole, and her friend, Larry
Whiteker. lns__tead, he claimed that his crime was mitigated because he acted
under the influence of an extreme emotional disturbance (EED). The jury
rejected his EED defense; he was convicted of all charges and sentenced as

noted above. This appeal followed as a matter of right.

II. OPINION TESTIMONY CONCERNING WHETHER APPELLANT
WAS ACTING UNDER EED AT THE TIME OF THE SHOO_TINGS
Appellant’s first argument is that “the Commonwealth repeatedly elicited
inadmissible opinion testimony and legal conclusions that [Appellant] was not
acting under EED.” Appellant concedes that this issue is not preserved but
requests review for palpable error under RCr 10.26. Appellant cites the

testimony of four Witnesses: Police Officer lTony Stigers; Officer Brian Cochran,

 

2 The Commonwealth did not seek the death penalty.

4

a crime scene specialist; Dr. Timothy Fritz; and Paramedic Ken Ball. We begin
with a summary of the cited testimony.
A. Of`ficer Stigers

Of`ficer Stigers was one of the police officers who responded to the crime
scene. His testimony for the Commonwealth recounted his investigatory
activities on the night of the crimes On cross-examination, Appellant’s
attorney asked Stigers if he could ascertain Appellant’s state of mind during
the shooting. Stigers responded that he could not say whether Appellant was
acting under EED at the time of the shooting

Upon redirect, to follow-up on that line of inquiry, the Commonwealth
asked the following:

Commonwealth: So let’s deal with that, in your investigation l)id I

understand you to testify that Shaun Hiles, immediately after he killed

these two people, was calm in his demeanor?

Stigers: Yes, Sir.

Commonwealth: He was not showing any emotions?

Stigers: No, Sir.

Commonwealth: He didn’t cry to you that I became enraged, and l was

out of my mind when I shot and killed these people, did he? In fact, he

coolly and calme told you that he had just killed two people, is that "

correct?

Stigers: That’s correct.

Appellant also cites as improper the section of Stiger’s testimony in
which the Commonwealth elicited Stiger’s opinion that, because Appellant tore

off the door handles of Nicole’s car and bragged about it, he must have acted

intentionally when he shot Nicole and Whiteker.
5

B. Of’ficer Cochran

Officer Cochran is a crime scene specialist who investigated the shooting.
Cochran surmised upon direct examination that there had been a
“concentrated line of [gun] fire” directed toward the two victims On cross-
examination, Cochran explained that he was not testifying about Appellant’s
state of mind, only the direction of the gunfire.

Then, upon re-direct and in response to Appellant’s inquiry, the
Commonwealth asked Cochran how he might go about determining someone’s
mental state:

Cochran: There’s a lot of background information that goes in. 'It’s

generally not a crime scene aspect, it’s a lot of background work; talking

to folks and things of that nature.

Commonwealth: So if ‘I’m hearing what you’re saying, you investigate

the circumstances both before and after the act, and based on that, a

determination of state of mind is made?

Cochran: That’s correct; this is a small component of that overall
determination

Commonwealth: And what you’ve determined here, as it goes to state of
mind, is whoever was firing this weapon, knew what they were doing,
because they fired a concentrated set of bullets, didn’t they? '
Cochran: I would say it’s in a very controlled manner.
C. Dr. Fritz
Dr. Fritz treated Appellant’s wounds at the hospital. Fritz described
Appellant as “combative and in extremis,” behavior he considered lconsistent
with someone who had suffered a significant wound to the chest. The

Commonwealth then asked Fritz if Appellant had shown “any remorse or any

type of emotion whatsoever in regard” to having just killed two people, Fritz
6 .

responded, “We were not discussing that situation.” He said Appellant made
no mention of the circumstances surrounding his injury.

The Commonwealth again asked if Appellant was “in any way remorseful
or emotional.” Fritz responded that Appellant was “emotional consistent with
someone shot in the chest, he was appropriately upset.”

D. Ken Ball

Ball is a paramedic who treated Appellant at the scene of the shootings
Over Appellant’s objection, Ball was permitted to testify concerning Appellant’s
vital signs immediately after the shooting. After Ball read off the medical
information, the prosecutor stated that the readings did not seem abnormal,
and in regards to the blood pressure reading stated, “In fact, I should have as
good, correct.” Ball confirmed the accuracy of that conclusion.

E. Analysis

Appellant casts the foregoing testimony as testimony of non-expert
witnesses expressing, in violation of KRE 701, opinions that Appellant was not
acting under EED at the time of the shootings I-Ie concedes that this issue is
not preserved for appellate review. “Under RCr 10.26, we may grant relief for
an unpreserved error when the error is: (l) palpable; (2) affects the substantial
rights of a party; and (3) has caused a manifest injustice.” S_pears v.
Commonwealth 448 S.W.3d 781, 791 (Ky. 2014) (citing Commonwealth v.
Jones, 283 S.W.3d 665, 663 (Ky. 2009)). d

For an error to be palpable, “it must be easily perceptible, plain, obvious

and readily noticeable.” Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky.

7

2006). “Implicit in the concept of palpable error correction is that the error is so
obvious that the trial court was remiss in failing to act upon it sua sponte.”
Lamb v. Commonwealth, 510 S.W.3d 316, 325 (Ky. 2017).

“‘Manifest’ injustice requires showing a probability of a different result or
errorso fundamental as to threaten a defendants entitlement to due_process of
law, i.e., the error so seriously affected the fairness, integrity, or public
reputation of the proceeding as to be “shocking or jurisprudentially
intolerable.” Spears, 448 S.W.3d at 791 (citing Martin v. Commonwealth 207
S.W.3d l, 3-4 (Ky. 2006)).

KRE 701 states:

If the witness is not testifying as an expert, the witness’ testimony

in the form of opinions or inferences is limited to those opinions or

inferences which are:

(a) Rationally based on the perception of the witness;

(b) Helpful to a clear understanding of the witness' testimony
or the determination of a fact in issue; and

(c) Not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.

Our review of the testimony cited by Appellant as improper opinion
evidence exposes the inaccuracy of Appellant’s initial premise that the
Commonwealth “repeatedly elicited inadmissible opinion testimony and legal
conclusions that Shaun was not acting under EED” at the time of the shooting.
Fritz and Ball provided no testimony at all that could reasonably be construed

as an opinion or conclusion concerning whether Appellant was acting under.

EED at the time of the shooting.

With regard to the cited testimony of Stigers and Cochran, we first note
that it was Appellant, during cross-examination, who broached the subject z
concerning the issue of Appellant’s state of mind (presumably in the
advancement of his EED defense), and so the cited re-direct testimony is in
large part a product of Appellant having previously “opened the door” to the
issue by raising it himself on cross-examination

Professor Lawson describes the concept of “curative admission” or
“opening the door” as follows:

‘The term “opening the door” describes what happens when one

party introduces evidence and another introduces counterproof to

refute or contradict the initial evidence If the first party objects

to the counterproof, or loses the case and claims error in admitting

it, typically the objection or claim of error is rejected because he

opened the door.’
Lawson, Kentucky Evr'dence § 1.10[5], at 43 (quoting Mueller 85 Kirkpatrick,
Federal Evidence § 12 (2d ed. 1994)) (ellipsis in original). With Appellant
himself having first questioned Stigers and Cochran about Appellant’s
emotional sta_te-of`-mind, the'Commonwealth’s limited follow-up on redirect
falls well within the rule that if one party opens the door to an issue, the
opposing party is entitled to follow-up, clarify, and rebut the evidence as raised
by his opponent.

Stigers’ testimony concerned Appellant’s outward, observable demeanor,
which is proper testimony. KRE 602 permits a witness to describe another
person’s “conduct, demeanor, and statements [ ] based upon his or her

observations to the extent that the testimony is not otherwise excluded by_,the

Rules of Evidence.” Ordway v. Commonwealth 391 S.W.3d 762, 777 (Ky.
9

2013). Similarlyi on cross-examination, Cochran specifically disclaimed any
ability to testify about Appellant’s state of mind, He confined his opinion
testimony to the gunshot trajectories. Cochran’s only testimony regarding a
shooter’s mental state was directed toward the manner in which such a
sequence of shots might be fired. He gave no opinion concerning the
motivation or mental state of the shooter or whether Appellant was acting
under EED on this particular occasion

In summary, we find no error at all within the cited testimony, and so we
are unpersuaded that a manifest injustice occurred as a result of the testimony

to which Appellant has directed us. RCr 10.26.

III. TESTIMONY CONCERNING APPELLANT’S DEMEANOR PRIOR
TO THE SI'IOOTI'NG

Appellant contends that palpable error occurred when witness Mark
Miller testified that when he saw Appellant earlier on the day of the fatal
incident. Appellant wjas visibly upset and was cursing repeatedly. Appellant
also complains that Miller testified that his granddaughter received baby-
sitting care at a residence also frequented by Nicole and Whiteker. Miller
explained that he had feared for his granddaughter’s well-being because “if he
[Appellantj goes down to that house, it won’t be good.” Miller testified that he
was so worried about what Appellant might do that he could not- sleep that
night, and that he ended up at t-he hospital “because of the stress of the whole

situation.”

Because EED was Appellant’s defense against the murder charges
testimony about his emotional condition in the hours leading up to the killings
was decidedly relevant, and probative of a crucial issue in the tri`al_t_he
emotions that may have motivated Appellant’s later behavior. Miller’s
description of Appellant’s demeanor was admissible.

However, Miller’s testimony about his concern for his granddaughter’s
safety`and his contemporaneous speculations about what might happen if
Appellant went to the residence while Nicole was there, and his subsequent
resort to medical assistance because of the stress was all inadmissible as
irrelevant, and it should not have been presented. Appellant never objected to
the testimony so we are again constrained to palpable error review under RCr
10.26.

As noted above, in order to be entitled to relief under the palpable error
standard, a defendant must show that absent the error that there is a
reasonable probability that a different result would have occurred, or that the
error was so fundamental as to threaten a defendants entitlement to due
process of law, i.e., that the error so seriously affected the fairness, integrity, or
public reputation of the proceeding so as to be “shocking or jurisprudentially
intolerable.” Spears, 448 S.W.3d at 791.

We are not persuaded that Miller’s irrelevant testimony was so
consequential that it affected the verdicts,- or that its admission was error so
fundamental as to threaten Appellant’s entitlement to due process of law, or

undermine the fairness integrity, or public reputation of the proceeding as to

ll

be “shocking or jurisprudentially intolerable.” Accordingly, we reject

Appellant’s claim that reversal is required.

IV. IMPROPER CLOSING ARGUMENT

Appellant contends that the prosecutor engaged in two instances of -
improper closing arguments First, he contends that the prosecutor misstated
the law applicable to EED. Second, he contends that the prosecutor argued
facts not in evidence. Appellant concedes that this argument is not preserved
but requests palpable error review under RCr 10.26.

A. Misstating the Law of EED
In McClellan v. Commonwealth we defined extreme emotional

disturbance as:

a temporary state of mind so enraged, inflamed, or disturbed as to
overcome one's judgment, and to cause one to act uncontrollably
from the impelling force of the extreme emotional disturbance
rather than from evil or malicious purposes lt is not a mental
disease in itself, and an enraged, inflamed, or disturbed emotional
state does not constitute an extreme emotional disturbance unless
there is a reasonable explanation or excuse therefor, the
reasonableness of which is to be determined from the viewpoint of
a person in the defendant’s situation under circumstances as
defendant believed them to be.

715 S.W.2d 464, 468-69 (Ky. 1986) (ernphasis added]. This definition is
incorporated into KRS 507.020(1)(a):

a person shall not be guilty [of murder] if he acted under the influence of
extreme emotional disturbance for which there was a reasonable
explanation or excuse, the reasonableness of which is to be determined
from the viewpoint of a person in the defendants situation under the
circumstances as the defendant believed them to be.

12

Appellant argued at trial that the circumstances surrounding the
collapse of his marriage provided the reasonable explanation for his violent
outburst. While addressing Appellant’s EED defense during closing
arguments the prosecutor told the jury that EED did not apply in this case
unless there was “some reasonable explanation” for the disturbance, and that
by urging the jury to find that he acted under EED, Appellant was asking them
“to say going through a divorce [is]` somehow explainable as EED.” Appellant
contends that these remarks to the jury “distorted the law.” We disagree

The prosecutor’s statement that Appellant’s claim of EED could not
stand unless accompanied by a “reasonable explanation” is fundamentally
consistent with McClellan and KRS 507.020(1)(a). To qualify as EED, the
temporary loss of judgment that mitigates a murder charge must have a
reasonable explanation that accounts for the temporary loss of sound judgment
by a person in the'defendant’s situation Moreover, we do not regard the
prosecutor’s argument as an attempt to explain the law to the jury. Rather, we
see it as simply a response to Appellant’s contrary assertion, an attempt to
persuade the jury that the rather common stress of going through a divorce,
even under the difficult circumstances faced by Appellant, would not
reasonably explain Appellant’s loss of judgment, causing him to “act
uncontrollany from the impelling force of the extreme emotional disturbance

rather than from evil or malicious purposes”

13

In summary, Appellant overstates the significance of the prosecutor’s
remarks The prosecutor’s comment did not distort the law applicable to EED.
We see no error here,

B. Arguing of Facts not in Evide`nce

Appellant also contends that the prosecutor’s closing argument urged the
jury to consider facts not in evidence. Although an attempt to commit suicide
may be the most plausible explanation for the fact that Appellant shot himself
in the Chest and the abdomen, the prosecutor'challenged that hypothesis with
the suggestion that Appellant may have intended only to wound himself. The
prosecutor argued to the jury, “I do know one thingl if l had that
marksmanship ability that he did and l wanted to kill myself, ll would’ve done
it, that gun barrel would have gone in my mouth or up against my heart.”

Appellant contends that no evidence at trial supported the prosecutor’s
charge that Appellant was a skilled marksman, and thus the prosecutor
improperly interjected that fact, “[Attorneys] may draw reasonable inferences
from the evidence and propound their explanations of the evidence and why
the evidence supports their respective theories of the oase. However, they may
not argue facts that are not'in evidence or reasonably inferable from the
evidence.” Garrett v. Commonwealth, 48 S.W.3d 6, 16 (Ky. 2001)(citations
omitted).

We disagree with Appellant’s contention Evidence indicated that he had
a concealed carry license which requires a basic level of competence with

firearms The proficiency of his marksmanship was evidenced by the fact that

'14

he targeted both Nicole and Whiteker and he hit both of them. The prosecutor
did not attribute to Appellant a greater level of marksmanship than that which
could be reasonably inferred from the evidence. We find no error in that aspect

of the prosecutor’s closing argument

V. PENALTY PI'IASE ARGUMENTS AND INSTRUCTIONS

Appellant next contends that the penalty phase jury instructions were
configured so as to compel the jurors to impose either life without parole or life
without_parole for 25 years if it found the existence of an aggravating factor,
thereby preventing the jury from imposing the lesser alternatives of either: l) a
term of imprisonment for life; or 2) imprisonment for a term of not less than 20
nor more than 50 years The jury found the existence of the aggravating factor,
that Appellant’s acts were intentional and resulted in multiple deaths and
fixed his sentence for each death at life without the possibility of parole.
Appellant concedes that this issue is not preserved but requests palpable error
review pursuant to RCr 10.26. t
A. The Instructions

The penalty phase instructions for both the Nicole and Whiteker murders
contain the same alleged defect. In order to illustrate the alleged error we use
the penalty phase instructions applicable to Whiteker. Instruction No. 5 sets
forth the authorized -sentences for capital murder and clearly indicated the full

range of possible sentences:
INSTRUCTION NO. 5

MURDER

15

¢

You may fix the Defendant’s punishment for the Murder of Larry Whiteker at:

(1) Confinement in the penitentiary for not less than twenty (20) years
nor more than fifty (50) years;

OR',

(2) Confinement in the penitentiary for life;

OR,

(3) Confinement in the penitentiary for life without benefit of probation
or parole until he has served a minimum of twenty-five (25) years of his
sentence;

OR, -

(4) Confinement in the penitentiary for life without benefit of probation
or parole.

But you cannot fix his sentence at confinement in the penitentiary for life
without benefit of probation or parole, or at confinement in the penitentiary for
life without benefit of probation or parole until he has Served a minimum of
twenty-five (25] years of his sentence, unless you are satisfied from the
evidence beyond a reasonable doubt that the statement listed in lnstruction
No. 3 (Aggravating Circumstance) is true in its entirety, in which event you
must state in writing, signed by the foreman, that you find the aggravating
circumstance to be true beyond a reasonable doubt.

You shall use Verdict Form “2” in reaching your verdict under this lnstruction.
Continue to lnstruction 6.

The latter portion of Verdict Form No. 2 contains the alleged error:

16

VERDICT FORM NO. “2”
MURDER
M
We, the jury, fix the Defendant Shaun E. Hiles’ punishment for the
offense of Murder of Larry Whiteker at:

Confinement in the penitentiary for not less than twenty (20) years nor
more than fifty (50) years
years

 

 

Foreperson

NO. 2
We, the jury, fix the Defendant Shaun E. Hiles’ punishment for the
Murder of Larry Whiteker at confinement in the penitentiary for life.

 

Foreperson

NO. 3
We, the jury, find beyond a reasonable doubt that the aggravating
circumstance described in lnstruction No. 3, “The offense of Murder was
committed, and Defendant’s act or acts of killing were intentional and resulted
in multiple deaths” (CLEARLY CIRCLE ONE OF THE FOLLOWING):

HAS [Circled]
HAS NOT ,
been proven from the evidence beyond a reasonable doubt.

We, the jury, fix the Defendant Shaun E. Hiles’s punishment for the
Murder of Larry Whiteker at: (CLEARLY CIRCLE A. or B.]

A. Confinement in the penitentiary for life without benefit of probation or
parole until he has served a minimum of twenty-five (25) years of his
sentence;

OR,

B. Confinement in the penitentiary for life without benefit of probation or
parole. [B. was circled by the Jury]

17

 

Foreperson

B. The Prosecutor’s En'oneous Statement

Appellant further contends that the error was compounded based upon
` the Commonwealth’s misleading statement during its closing argument
concerning the ramifications of a finding of an aggravating factor: _e
{.

In other words, the defendant committed the acts intentionally and

did it result in multiple deaths? If you start there and you apply

th'e law that you swore you Would apply, then you ’ve got but two

options out of thefour, and that is, as shown on down the page, A

or B, either life without the benefit of probation or parole or life

without parole, period. ` .
C. Analysis

We begin by noting that the prosecutor’s statement that if the jury found
an aggravating factor “then you’ve got but two options out of the four, and that
is, as shown on down the page, A or B, either life without the benefit of
probation or parole or life without parole, period” is an egregious misstatement
of the relevant sentencing law and indeed is utterly contradicted by Instruction
No. 5 as set forth above. In fact, contrary to the prosecutor’s statement, if a
capital case jury finds an aggravating circumstance, it need not impose a
sentence authorized only in the event of the finding of an aggravator; rather,
even in that instance it may still impose a sentence authorized in the absence

of the finding of an aggravator. See Dunlap v. Commonwealth, 435 S.W.3d 537,

610 (Ky. 2013). The prosecutor’s statement was thus erroneous

18

With regard to the configuration of the jury instructions Verdict Form 2
first gives the jury an opportunity to impose a non-capital sentence of a term of
years or life. Only if it refrains from doing that does it then move to
ascertaining the presence of an aggravating factor, and at this point, the
instructions are indeed flawed. As guided by the instructions if the jury
determines the existence of an aggravating factor, it then has only the option of
two capital case sentencing ranges: life without parole or life without parole for
twenty-five years (the Commonwealth did not seek the death penalty in this
case].

lf the instructions are faithfully followed, the jury that finds the existence
of an aggravating factor, such as multiple deaths i__s limited to two sentencing
options: life withoutlparole or life without parole for twenty-five years That is
an incorrect presentation of the applicable sentencing options -Under the
statutory scheme for capital offense sentencing, even after finding a capital
offense sentencing aggravator, the jury may still recommend a sentence of
imprisonment for a term of years (not less than twenty nor more than fifty), or
imprisonment for life, Dunlap at 610. The instructions should have presented
the jury with the additional options of fixing a sentence of imprisonment for a
term of years or for life, even if the jury found the presence of an aggravating
factor,

We agree with Appellant that the jury instructions and the prosecutor’s
statement are both erroneous Erroneous jury instructions are presumed

prejudicial Harp v. Commonwealth, 266 S.W.'Bd 813, 818 (Ky. 2008). “Of

19

course, that presumption can be successfully rebutted by showing that the
error ‘did not affect the verdict or judgment.”’ Ia'. Clearly, the prosecutor
compounded the problem by emphasizing the erroneous instruction in his
closing argument

Nevertheless, under the applicable standard for unpreserved claims lof
error, we are not persuaded that manifest injustice occurred, given the facts of
this case. Most compelling is the fact that after the jury found the aggravating
factor, it by-passed the lower sentencing option_life without parole for twenty-
five years_and instead selected the higher sentence of life without the
possibility of parole, the greatest sentence possible in this case, From this
unique circumstance, logic dictates that if the jury were otherwise inclined
toward the lesser sentences of imprisonment for life of a term of years then it
would have chosen the lesser of the two sentencing options before it: life
without parole for twenty-five years Having rejected that lesser option, we see
no realistic prospect that the jury might have chosen an even lesser alternative
of either imprisonment for life or a term of years which should have been before
it.

We are also influenced by other aspects of the jury instructions which
informed the jurors that their full range of sentencing options included life
imprisonment and imprisonment for a term of years Jury lnstruction 5
specifically informed the jury that these sentencing options were authorized
sentences Further, a different aspect of the way Verdict Form 2 was

structured arguably favored Appellant in that the jury was first invited to

20

recommend a term of years or life, and only then was directed to move to the
aggravating factor section with its capital sentencing options ln other words, if
the jury had been inclined to recommend a sentence of fifty years (or some
other term of years), it could have done that in'the first section of Jury Form 2
and in that event, it would never have reached the erroneous capital

sentencing section further down the page,

While we agree that the jury instructions contained flaws and that the '
prosecutor misstated the jury’s sentencing options upon the finding of
aggravating circumstances these‘_errors were never brought to the attention of
the trial court. We are convinced that these unpreserved errors did not affect
the ultimate sentencing decision made by the jury, and we are convinced that
these unpreserved errors were not so fundamental so as to deprive Appellant of
his right to due process of law. The errors did not fundamentally affect the
fairness integrity, or public reputation of the proceeding as to be “shocking or
jurisprudentially intolerable.” Spears, supra. Accordingly, we are Satisfied that
the errors did not cause manifest injustice so as to require reversal of the

judgment under RCr 10.26.

VI. APPELLANT WAS NOT ENTITLED TO A DIREC'I_‘_ED iIERDICT
ON THE WANTON ENDANGERMENT CHARGES
Appellant’s convictions for wanton endangerment are predicated upon
the allegations that he intentionally crashed his SUV into Whiteker’s truck,
thus wantonly endangering the occupants of that vehicle, Nicole and Whiteker.

Appellant argues that` he was entitled to a directed verdict on the two wanton

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endangerment charges He concedes that the issue is not preserved for
appellate review but requests review nonetheless under the palpable error
standard.

KRS 508.060("1) provides than

A person 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 501.020(3) defines wantonly as follows:

“Wantonly” -- A person acts wantonly with respect to a result or to
a circumstance described by a statute defining an offense when he
is aware of and consciously disregards a substantial and
unjustifiable risk that the result will occur or that the
circumstance exists The risk 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 A person who creates such a risk but is unaware thereof
solely by reason of voluntary intoxication also acts wantonly with
respect thereto.

To prove these charges the Commonwealth presented the testimony of
an automobile collision reconstructionist who opined that when Appellant’s
SUV crashed into Whiteker’s truck, both vehicles were traveling on a narrow
country roadway at a speed of more than seventy miles per hour. The expert
deduced that when Whiteker braked to turn right onto a second narrow road,
Appellant caught up and rammed into the right rear side of the Whiteker
vehicle, spinning it to a stop. ln his brief, Appellant frames his argument as
follows:

[t]here was no evidence that Shaun was acting wantonly when he

hit Whiteker’s pickup truck. To the contrary, the Commonwealth
called accident reconstructionist Scott Conrad to testify that

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Shaun’s collision with Whiteker appeared to be the result of an
intentional hit.

(Emphasis in original). As we construe the argument, Appellant contends that
he could not be convicted of wanton endangerment because, as the
Commonwealth’s evidence establishes he was acting intentionally rather than
wantonly, when he crashed his SUV into Whiteker’s occupied pickup.

We find no basis to support the proposition suggested by Appellant. The
definition of wanton conduct explicitly embodies the notion that the defendant
“is aware of and consciously disregards a substantial and unjustifiable risk”
entailed by his dangerous behavior, but then proceeds to engage in the conduct
despite that risk. The quintessential example of wanton conduct is
intentionally firing a gun into a crowd or intentionally throwing a bomb into an
occupied building.

Upon viewing the evidence in the light most favorable to the
Commonwealth, a reasonable jury could easily conclude that Appellant
intentionally crashed into Whiteker’s truck and that he was at that time aware
of substantial risk created by his conduct and yet he consciously disregarded
those risks and proceeded nonetheless Appellant was-not entitled to a directed
verdict on the wanton endangerment charges regardless of his failure to
preserve the issue. lt follows that Appellant is not entitled to relief under the

manifest injustice standard of RCr 10.26

VII. THE WANTON ENDANGERMENT CONVICTIONS ARE
NOT BARRED BY DOUBLE JEOPARDY

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Finally, Appellant contends his convictions for murdering Nicole and
Whiteker and for wantonly endangering them violate the statutory double
jeopardy provisions of KRS 505.020(1). Specifically, he argues that “the act of
slamming into Whiteker’s truck and shooting the occupants was one event, .
uninterrupted by legal process and cannot be prosecuted as two separate
crimes[.]”

KRS 505.020(1] provides as follows:

(1) When a single course of conduct of a defendant may establish the

commission of more than one (l) offense, he may be prosecuted for each

such offense, He may not, however, be convicted of more than one (l)

offense when:

(a] One offense is included in the other, as defined in subsection
(2); Or

(b) Inconsistent findings of fact are required to establish the
commission of the offenses or -

(C) The offense is designed to prohibit a continuing course of
conduct and the defendants course of conduct was uninterrupted
by legal process unless the law expressly provides that specific
periods of such conduct constitute separate offenses
Appellant does not elaborate upon his parsing of why KRS 505.020(1)
Would preclude convictions for both wanton endangerment and murder under
the facts of this case; however, it is clear that the plain language of the statute
permits prosecutions for both wanton endangerment and murder under the
circumstances presented here,
The statute begins by accentuating this general rule: When a single

course of conduct of a defendant may establish the commission of more than

one (1) offense, he may be prosecuted for each such offense. Assumin'g,

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therefore, that=Appellant’s conduct of crashing his vehicle into Whiteker’s truck
and then shooting the occupants is but a single course of conduct, if two
offenses may be established by the conduct, then he may be prosecuted for
both. Plainly, the ramming of the occupied truck establishes the two offenses
of wanton endangerment and the separate act of shooting the occupants
during the same course of conduct establishes the two offenses of murder.

n . The remainder of KRS 505.020(1) proceeds to establish exceptions to the
general rule. A defendant may not be convicted for two (or more) crimes for the
same course of conduct if (a) one of the crimes is a lesser included offense of
the other; (b) inconsistent facts would have to be reached to convict the
defendant of both of the crimes; or (c) the offense is designed to prohibit a
continuing course of conduct and the defendants course of conduct was
uninterrupted by legal process unless the law expressly provides that Specific
periods of such conduct constitute separate offenses

Subsection (a) does not apply because the wanton endangerment charges
are not, under these circumstances a lesser included offense of the murder
charges; indeed the wanton endangerment charges resulted from Appellant’s
crashing his vehicle into Whiteker’s vehicle whereas the murder charges
involved the entirely separate event of his shooting of the victims As we
explained in Spicer v. Commonwealth, KRS 505.0`20[1] “does not bar the
prosecution or conviction upon multiple offenses arising out of a single course
of conduct when the facts establish that two or more separate and distinct

attacks occurred during the episode of criminal behavior. [F]or multiple

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convictions to be proper, there must have been a cognizable lapse in his course
of conduct during which the defendant could have reflected upon his conduct,
if only momentarily, and formed the intent to commit additional"acts.” 442
S.W.3d 26, 31 (Ky. 2014) (citing Kiper v. Commonwealth, 333 S.w.3d 736, 745

` (Ky. 2012)).

Subsection (b) similarly does not apply because the jury need not have
reached inconsistent facts in order to have convicted Appellant under each of
the sets of charges Finally, Subsection (c) does not apply because it applies
only to offenses “designed to prohibit a continuing course of conduct[.]”
Unlike, for example, the crime of the offense of nonsupport of a dependent,
neither the crimes of murder nor wanton endangerment were designed by the
legislature to prohibit a continuing course of conduct. Accordingly, this
subsection is inapplicable Welborn v. Commonwealth, 157 S.W.3d 608, 612
(Ky. 2005)

ln summary, Appellant’s convictions for the multiple crimes of murder

and wanton endangerment are not barred by KRS 505.020(1).

VIII. CONCLUSION

For the foregoing reasons the judgment of the Grant 'Circuit Court is
affirmed.

All sitting. All concur.

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COUNSEL FOR APPELLANT:

Erin Hoffman Yang
Assistant Public Advocate

COUNSEL FOR APPELLEE:

Andy Beshear

Attorney General of Kentucky
David Bryan Abner

Assistant Attorney General

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