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Court of Appeals of Kentucky.


NO. 2010–CA–002010–MR

Decided: January 20, 2012

BEFORE:  MOORE, STUMBO, AND WINE, Double JUDGES. BRIEFS FOR APPELLANT:  J. Brandon Pigg Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky Julie Scott Jernigan Assistant Attorney General Frankfort, Kentucky



Michael Rust directly appeals from his Logan Circuit Court convictions on the charges of first-degree fleeing and evading police, reckless driving, and being a first-degree persistent felony offender.   Rust claims that his conviction should be vacated and that he should be given a new trial based upon the following grounds:  (1) He was denied a fair trial when a former judge was empanelled on his jury;  and (2) He was entitled to a direct verdict after the Commonwealth failed to meet its burden regarding two of the elements of the first-degree fleeing and evading charge.   For the reasons contained herein, we affirm the Logan Circuit Court.

On January 14, 2010, Logan County Sherriff's deputies Giles Taylor and Steve Stratton were returning from lunch when they noticed Rust sitting in his vehicle in the Auburn Electric Company parking lot.   Stratton was familiar with Rust and knew that he had outstanding warrants for his arrest.   The deputies pulled into the parking lot behind Rust. Taylor approached Rust's vehicle and informed him of the outstanding warrants.   When Rust asked questions about the warrants, Taylor told him that another deputy was en route to serve him.   Taylor told Rust to, “Hang tight.”

As Taylor turned around toward the Sheriff's Department truck, Rust spun his tires and pulled out of the parking lot.   He led police on a chase over winding country roads.   The Sheriff's deputies eventually abandoned the pursuit.   Rust was later arrested on the charges of first-degree fleeing and evading, reckless driving, and being a first-degree persistent felony offender.   On August 31, 2010, Rust was convicted of those charges.   He was sentenced to fifteen years of imprisonment.

A. Jury Selection

At Rust's trial, William Fuqua, a former Logan Circuit Court judge, was among the venire.   Approximately fifteen years prior to the trial, Judge Fuqua presided over two cases in which Rust received felony convictions.   One of those felony convictions was designated by the Commonwealth to be used to prove Rust's status as a first-degree persistent felony offender.

During voir dire, Rust's counsel moved to strike for cause Judge Fuqua based upon his role in Rust's prior felony convictions.   The trial court questioned Judge Fuqua with regard to his ability to be objective and fair.   Judge Fuqua stated that he did not remember Rust or the factual circumstances surrounding Rust's prior convictions.   He claimed that he could be fair.   Noting the impartial role of a judge, the trial court claimed that Judge Fuqua would be an ideal juror and denied Rust's motion to strike him for cause.   Rust did not use a preemptory strike to eliminate Judge Fuqua from the jury.   Further, he did not indicate that he would have eliminated Judge Fuqua, or any other jurors, if he had additional strikes.   Nonetheless, Rust claims that Judge Fuqua's presence on the jury deprived him of a fair trial.   Under the circumstances of this case, we disagree.

“[A] trial court's decision on whether to strike a juror for cause [is] reviewed for abuse of discretion.”  Shane v. Commonwealth, 243 S.W.3d 336, 338 (Ky.2007).   The trial court's decision “must weigh the probability of bias or prejudice based on the entirety of the juror's responses and demeanor.   There is no ‘magic question’ that can rehabilitate a juror as impartiality is not a technical question but a state of mind.”  Id.

Kentucky Rules of Criminal Procedure (RCr) 9.36(1) requires trial courts to excuse a juror if there is a reasonable basis to believe the juror cannot be fair and impartial.   The trial court must question, “whether, after having heard all of the evidence, the prospective juror can conform his views to the requirements of the law and render a fair and impartial verdict.”  Paulley v. Commonwealth, 323 S.W.3d 715, 721 (Ky.2010) quoting Mabe v. Commonwealth, 884 S.W.2d 668, 671 (Ky.1994).   Any doubts regarding the juror's ability to be fair should be construed in favor of the defendant.  Paulley, 323 S.W.3d at 721.

The trial court's conclusion that Judge Fuqua could be fair and impartial was based upon sufficient evidence.   The trial court noted that judges interact with a large number of people.   Although Rust appeared in Judge Fuqua's courtroom on felony charges, nothing suggests that the charges were unusual or especially memorable.   Judge Fuqua claimed that he did not remember Rust, his previous convictions, or the facts and circumstances surrounding his cases.   This claim was supported by the large amount of time that had passed since Rust appeared in Judge Fuqua's court.

During his direct testimony, Rust testified that he was a convicted felon.   Prior convictions may be used to impeach the veracity of any witness, including criminal defendants, who testify.  Commonwealth v. Richardson, 674 S.W.2d 515, 517 (Ky.1984).   Even if Judge Fuqua remembered that Rust had a criminal record or if the trial court's inquiry informed Judge Fuqua that Rust had a criminal record, the prejudice would have been dissipated by Rust's testimony admitting that he had a prior felony conviction.

B. Directed Verdict

At the close of the Commonwealth's case-in-chief, Rust moved the trial court to grant a directed verdict in his favor based upon the following grounds:  (1) The Commonwealth did not prove that Rust recognized Taylor to be a police officer;  and (2) The Commonwealth did not prove that Rust created a substantial risk of serious physical injury or death or any person or property.   Rust's motion was denied.   On appeal, Rust claims that his conviction should be reversed based upon the trial court's erroneous ruling regarding directed verdict.   We disagree.

KRS 520.095(1) provides in part:

(1) A person is guilty of fleeing or evading police in the first degree:

(a) When, while operating a motor vehicle with intent to elude or flee, the person knowingly or wantonly disobeys a direction to stop his or her motor vehicle, given by a person recognized to be a police officer, and ․

4. By fleeing or eluding, the person is the cause, or creates substantial risk, of serious physical injury or death to any person or property[.]

The legal standards of review for claims regarding a trial court's decision on a motion for directed verdict are as follows:

On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth.   If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given.   For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given such testimony.

On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal.

Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991).  “[T]he evidence must be [re]viewed in a light most favorable to the Commonwealth.”   Commonwealth v. Sawhill, 660 S.W.2d 3, 4 (Ky.1983).  “The basis for the guideline lies in the belief that the weight and value given to the evidence is for the jury to decide.   If it is reasonably possible the jury should decide the matter.”  Id.

C. Fleeing and Evading Police

Rust claims that he did not recognize Deputy Taylor as a police officer and, thus, could not be convicted of fleeing and evading a police officer.   The trial court concluded that the evidence indicated that Rust knew that Deputy Taylor was a Sheriff's deputy.   We agree with the trial court.

During the Commonwealth's case-in-chief, Deputy Taylor testified that he was wearing “class B” sheriff's uniform when he stopped Rust in the parking lot.   The uniform consisted of a khaki long-sleeved shirt with the sheriff's department insignia embroidered on the side, brown uniform pants, a brown cap with the word “SHERIFF” brightly embroidered in large, yellow letters on the front, and a brown jacket that was similarly embroidered.   Taylor was riding in a Ford F–150 truck with the word “Sheriff” written in large letters on various parts of the vehicle.   Additionally, a blue light bar was mounted on top of the cab of the truck.

During trial, Rust claimed that he believed that Detective Taylor was not a sheriff's deputy but an animal control officer who did not have arrest powers.   On appeal, Rust supports his claim by arguing that the words, “Animal Control”, that were written on the truck and the large cage in truck bed created ambiguity concerning the nature of Taylor's position.

Taylor's testimony and the corroborating pictures of the Sheriff's department truck indicate that a reasonable person would have known that he was a Sheriff's deputy.   Both Taylor's uniform and the truck were marked in numerous places with the word “Sheriff” in large, bright letters.   When examining the evidence in the light most favorable to the Commonwealth, we conclude that the ample evidence existed to support the trial court's conclusion to deny Rust's motion for a directed verdict.

D. Substantial Risk of Injury

Finally, Rust claims that the trial court erred in denying his motion for directed verdict because his actions did not create a substantial risk of serious injury or death.  “Whether a defendant's act of fleeing or eluding police creates ‘a substantial risk of death or serious physical injury’ will, of course, ‘turn [ ] on the unique circumstances of an individual case.’ ”   Bell v. Commonwealth, 122 S.W.3d 490, 497 (Ky.2003) (Footnote omitted).   Certainly, not all risk of injury creates a substantial risk of serious physical injury.   Mere speculation that injury or death could have occurred is insufficient.  Id. “[T]he issue of whether a defendant's conduct creates a substantial risk of death or serious physical injury ‘depends upon proof’ and reasonable inferences that can be drawn from evidence.”  Id. (Internal footnote omitted).   A substantial risk “is ‘[a]mple,’ ‘[c]onsiderable in ․ degree ․ or extent,’ and ‘[t]rue or real;  not imaginary.’ ”  Id. (Internal footnotes omitted).

During the trial, Deputies Taylor and Stratton estimated that Rust's speed exceeded eighty miles per hour over winding, country roads with the pavement in poor condition.   Even though other vehicles were not on the road during the time of the chase, the chase went past a community store frequented by many people.   The risk of injury to others, including the deputies and Rust, was readily identifiable, increased by the presences of specific factors, and realistic.   When examining the evidence in the light most favorable to the Commonwealth, the deputies' testimonies provide ample evidence to establish that a substantial risk of serious injury or death was created by Rust's actions.

Accordingly, the Logan Circuit Court judgment of conviction is affirmed.