        IMPORTANT NOTICE
   NOT TO BE PUBLISHED OPINION
                                  '   (




THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER, _
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OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
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                                             RENDERED: DECEMBER 14, 2017
                                                     NOT TO BE PUBLISHED

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                              2016-SC-000602-MR


MICHAEL ANDREW HARDY                                                 APPELLANT


                 ON APPEAL FROM WARREN CIRCUIT COURT
v.               HONORABLE STEVE ALAN WILSON, JUDGE
                            NO. 15-CR-00047


COMMONWEALTH OF KENTUCKY                                              APPELLEE



                  MEMORANDUM OPINION OF THE COURT

                                  AFFIRMING


      On November 21, 2014, Appellant, Michael Andrew Hardy, began

drinking whiskey early in the day. Hardy nearly rear-ended a friend's vehicle

while following her to her family's home later that day. The friend directed him

tp park his Jeep Wrangler in a grocery store parking lot and ride the rest of the

way with her. Hardy drank whiskey throughout the day at his friend's house.

      When Hardy was ready to leave, his friend and her husband attempted to

convince Hardy to spend the evening at their residence. However, Hardy was

persistent. He insisted that he would get a ride home, rather than drive.

Hardy's friend begrudgingly drove him back to the grocery store parking lot. He

assured his friend that he would be receiving a ride home from that location.
      Instead, Hardy got into his vehicle arid tried to drive himself home.

Several witnesses saw Hardy's vehicle speeding down the road with its

emergency flashers blinking, passing other drivers in a dangerou.s manner. He

nearly caused a head-on collision with one witness, who testified that Hardy

swerved to avoid rear-ending a slower driver and crossed into the witn.ess's

path.· Another witness testified th~t she pulled her·vehicle aside to the

shoulder to avoid being rear-ended by Hardy.

      Shortly after those narrow misses, Hardy rear-ended a Miata driven by

the victim, Arthur "Jeremy".Pryor. Pryor was killed. '-'At the scene, Hardy could

not recall the collision with Pryor and thought he had struck a tree. Hardy

admitted to first responders that he had been drinking and had taken the

antidepressant drug Seroquel. His 'blood alcohol content was .190.

      Hardy was subsequently indicted and tried for: one count of wanton

murder; three counts of wanton endangerment in the first degree; one count of

criminal· mischief in the first degree; and one count of driving while intoxicated.

At trial, the Commonwealth offered witnesses who described seeing Hardy's

vehicle speed by with its emergency flashers blinking just before the fatal

accident.

      No one witnessed the actual collision-only its aftermath and Hardy's

pre-collision speeding. Hardy did not remember what caused the collision.

Nevertheless, the collision: analysis showed that Hardy rear-ended Pryor's

vehicle. An accident reconstructionist testified that Hardy struck the. victim's

vehicle from the left, rear corner. Further analysis of the event data recorder

                                        2
(EDR) from Hardy's vehicle showed that he was driving. at 90 miles per hour in

a 30-mile-per-hour speed zone a tenth-of-a-second before the crash. The EDR

also showed that Hardy did not apply the brakes pre-impact. Nor were there

any visible signs of pre-impact braking on the roadway.

      Aside   f~oµi   a failed attempt to enter the victim's __toxicology report, Hardy

offered no proof to refute· that he had rear-ended Pryor at an excessive speed, )

causing Pryor's death.

      A Warren Circuit Court jury convicted Hardy of wanton murder, three

counts of wanton endangerment, criminal mischief, and driving while

intoxicated. Based upon the jury's recommendation, the trial court sentenced
                                           (


him to a total of 20 years' imprisonment. Hardy raises three issues on appeal

as a matter of right. Ky.    ~onst.   § 110(2)(b).

                      Exclusion of Victim's Toxicology Report

      For his first assignment of error, Hardy argues that the trial court

wrongfully excluded the victim's toxicology report. We review alleged

evipentiary errors for an ·abuse of discretion. Commonwealth v. English, 993

S.W.2d '941, 945 (Ky. 1999).

      A postmortem toxicology report showed the presence of benzodiazepines

and cannabinoids in the victim's blood and urine. The Commonwealth

successfully argued that this toxicology evidence was irrelevant because there

was no proof that the victim was driving improperly. The trial court ruled that

Hardy had to show that the substances found during the toxicology report



                                               3
would have affected Pryor's driving and contributed to the collision before the

report would be deemed relevant.

       Hardy did not meet the trial court's established burden for proving the

evidentiary value of the toxicology report. The physician who performed .the

autopsy affirmed that the level of illicit substances found in the victi.m's body

did not show that the victim was impair:ed. Hardy did not provide proof that

the victim's driving was impaired at the time of the collision, nor that the

victim's driving was generally impaired prior thereto.

       We must determine whether the evidence offered was relevant, and

whe~er   its substantive value substantially outweighed its prejudicial effect.

_KRE 402; KRE 403. Relevant evidence must have "any tendency to make the

existence of any fac_t that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence." KRE

401.

       Under KRE 403, prejudicial evidence should be admitted if it is "evidence

of some logical, qualifying information [that] enhance[s] the proffered evidence·

beyond speculative, farfetched theories that may potentially confuse the issues

or mislead the jury." Gray v. Commonwealth, 480 S.W.3d 253, 268 (Ky. 2016).

Stated another way, a defendant may not "present unsupported theories ...

[that] invite
        \
              the jury to speculate as to some cause other than one supported by

the evidence." Davenport v. Commonwealth, 177 S.W.3d 763, ,772 (Ky. 2005).

       Here, Hardy offered no proof that Pryor's conduct had caused the

collision. ·All evidence offered by the prosecution supported that Hardy's

                                        4
wanton conduct had led him to rear-end the victim's vehicle. There was no

evidence offered to support that the victim contributed to the accident's

occurrence in any way. Evidence of illicit substances in the victim's body was

not relevant to Hardy's charges, and so would have unduly prejudiced the

victim's character. It would·only have served to confuse the jury about the

issues they were to decide in this case. Thus, we hold that the trial court

properly excluded the victim's toxicology report.

                           Selective Prosecution Claim

      For his second assignment of error, Hardy claims that the

Commonwealth used "selective prosecution" by not extending a plea offer to

him. Hardy alleges that the Commonwealth would have made a plea deal with

other similarly...:situated defendants.

      We have stated that "[t]here is no· constitutional right to plea bargain and

it is within the prosecutor's discretion to decide whether to plea bargain or go

to trial." Porter v. Commonwealth, 394 S.W.3d 382, 388 (Ky. 2011) (internal

citation omitted). While this broad prosecutorial· discretion is "subject to

constitutional constraints," -United States v. Armstrong, 517 U.S. 456, 464

(1996) (quoting United States v. Batchelder, 442 U.S. 114, 125 (1979)), there

have been no valid constitutional arguments proffered.

      As for Hardy's Fourteenth Amendment and Eighth Amendment claims,

they are meritless. Similarly-situated drunk drivers are not a protected class.

Likewise, similarly-situated defendants, sentenced according to statutory law,

are not per se considered subject to cruel or unusual punishment.

                                          5
       Certainly, it was within the Commonwealth's prosecutorial discretion to

 choose not to make a plea deal with Hardy. Porter, 394 S.W.3d at 388. "The

 mere fact that some other putative offenders are not prosecuted· does not make

 a case of selective or arbitrary enforcement." Johnson v. Commonwealth, 864

 S.W.2d 266, 275 (Ky. 1993) (original emphasis). Therefore, Hardy's meritless

 claim of selective prosecution fails.

        Hardy's Recorded Statement "So What's That Mean For Me?"

        Lastly, Hardy claims that the trial court erred when it allowed a portion
                                                 .                     .
 of his recorded, post-collision statement to be played as a rebuttal to his

 testimony'. In response to learning that the victim he struck had been killed,

 Hardy asked an interrogating officer, "So what's that mean for me?"
                                         .                            - ·
       Even though the trial court had initially ruled this post-collision

 statement should be suppressed, the court changed its ruling and allowed a

 portion of Hardy's statement in on cross-examination. The court reasoned      th~:i.t

 Hardy's remorseful testimony was inconsistent with his "so what's that mean

 for me" attitude the night of the accident and ~as relevant to his state of mind.·

 Hardy claims that this recorded statement did not meaningfully rebut his

 testimony expressing.remorse for Pryor's death and only served to prejudice

 him to the jury.

       Proof relating to Hardy's remorse, or lack thereof, was relevant to

 determining whether Hardy wantonly operated his vehicle "under

. circumstances manifesting extreme indifference to human life." KRS

 507.020(l)(b).

                                             6
      Although the statement itself may have been prejudicial, the mere fact

that certain evidence is prejudicial does not automatically merit its exclusion

under KRE 403.· Webb v. Commonwealth, 387 S.W.3d 319, 326 (Ky. 2012).

The only valid argument for undue prejudice would have been made under the

rule of completeness. See Sykes v. Commonwealth, 453 S.W.3d 722, 726 (Ky.

2015); KRE 106. ·

      However, Hardy's counsel did not object to his recorded statement as an

incomplete statement under KRE 106, or argue that the full statement be

played instead of the "snippet" Hardy complained of in his brief. Thus, any

potential argument Hardy may have had under KRE 106 was not properly

preserved. Furthermore, even if Appellant's argument had been framed within

the context of KRE 106, we canriot say that the trial ·court abused its

discretion. RCr 9.24.

                                 Conclusion

      For the foregoing reasons, we hereby affirm the decision of the Warren

Circuit Court.

      All sitting. All concur.




                                        7
COUNSEL FOR APPELLANT:

Daniel Jay Canon
CLAY~ DANIEL;WALTON, ADAMS, PLC


Mark Hall
MARK G. HALLAITORNEY, PLLC


COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Jeffrey Allan Cross
Assistant Attorney General




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