author: STEVENSON, Justice. KELLER, Justice,

text:
    Avery GRAVES, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Francis Gerald Thomas, Appellant, v. Commonwealth of Kentucky, Appellee. Roy Lee Woods, Appellant, v. Commonwealth of Kentucky, Appellee.
    Nos. 96-SC-0342-MR, 96-SC-0345-MR and 96-SC-0346-MR.
    Supreme Court of Kentucky.
    Jan. 20, 2000.
    Rehearing Denied June 15, 2000.

      Larry H. Marshall, Assistant Public Advocate, Department of Public Advocacy, Frankfort, for appellant Avery Graves.

      David A. Lambertos, Louisville, for appellant Francis Gerald Thomas.
    Thomas M. Ransdell, Assistant Public Advocate, Department of Public Advocacy, Frankfort, for appellant Roy Lee Woods.
    A.B. Chandler, III, Attorney General, Frankfort, Perry T. Ryan, Assistant Attorney General, Criminal Appellate Division, Office of the Attorney General, Frankfort, for appellee Commonwealth of Kentucky.
   STEVENSON, Justice.

Appellant Francis Gerald Thomas desired to purchase one kilogram of cocaine for $27,000.00 and asked Kenneth Furman to assist him in arranging the purchase. Furman contacted Aaron McDuffie, who in turn contacted Appellant Roy Lee Woods, who agreed to obtain the cocaine, sell it to Thomas, and share some of the profits with Furman and McDuffie. Arrangements were made to consummate the transaction on February 8, 1995 at Trixie’s Lounge on Preston Highway in Louisville. Woods and McDuffie, along with Appellant Avery Graves, arrived at Trixie’s in a vehicle driven by Woods. Thomas and Fur-man arrived at Trixie’s in a vehicle driven by Thomas. McDuffie testified that he, Woods and Graves encountered Thomas and Furman at a pay phone inside Trixie’s, and that he, Woods and Graves all directed Thomas and Furman to follow them to the parking lot. Woods and Thomas went to Thomas’s vehicle; McDuffie, Graves and Furman went to Woods’s vehicle. Graves got into the driver’s seat and McDuffie got into the front passenger seat of Wood’s vehicle. Meanwhile, Thomas delivered $27,000.00 to Woods, who returned to his vehicle and placed the money in its trunk. He and McDuffie then gave Furman $500.00 as part payment of- Furman’s share. When Furman inquired, “[w]here’s the dope,” Woods replied that he had given it to Thomas. Graves, with McDuffie still in the front passenger seat and Woods in the back seat, then drove the Woods vehicle out of the parking lot and north on Preston. When Furman returned to Thomas’s vehicle, Thomas inquired, “[w]here’s the dope,” and Furman replied, “I thought you had it.” Thomas, with Furman in the front passenger seat, then drove his vehicle out of the parking lot and north on Preston in hot pursuit of Woods’s vehicle.

The two vehicles sped north on Preston Street, then on Shelby Street. There was evidence that the vehicles were traveling between 70 and 100 miles per hour in a 35 miles per hour zone and that gunfire was exchanged between Woods and Thomas. Ultimately, Graves drove the Woods vehicle through a red light at the intersection of Shelby and Eastern Parkway and broadsided a vehicle owned and being operated by Clara McDonald. McDonald and her son, Robert McDonald, were killed and McDonald’s vehicle was substantially damaged by the collision. Thomas drove his vehicle through the same red light and collided with yet another vehicle owned and being operated by Kenneth Weathers, causing substantial damage to Weathers’s vehicle. Both accidents were witnessed by a police officer who arrived on the scene within moments. Graves was pinned behind the steering wheel of Woods’s vehicle and was arrested at the scene. Thomas, Woods,.Furman and McDuffie all fled the scene. Woods was discovered hiding in a nearby White Castle Restaurant. McDuf-fie, Thomas and Furman escaped, but were arrested later. The $27,000.00 was recovered from the trunk of Woods’s car, but no cocaine was found.

Graves, Thomas and Woods appeal their subsequent convictions in the Jefferson Circuit Court of trafficking in a controlled substance in the first degree, wanton murder (two counts), and criminal mischief in the first degree. The operators of the two vehicles, Graves and Thomas, were also convicted of wanton endangerment in the first degree, speeding, and disregarding a traffic control device. Thomas was additionally convicted of failure to stop and render aid (leaving the scene of an accident). All three appellants were sen-teneed to life in prison for each of the wanton murder convictions and to lesser penalties for the other offenses, each sentence to run concurrently with the others.

TRAFFICKING IN A CONTROLLED SUBSTANCE

Appellants assert that they were entitled to directed verdicts of acquittal on their respective charges of first-degree trafficking in a controlled substance, because no cocaine was ever found, thus there was a failure of proof that any controlled substance either was sold or transferred, or was possessed for the purpose of sale or transfer. They rely on those cases which hold that an instruction should not be given on a theory which is unsupported by the evidence. E.g., Butler v. Commonwealth, Ky., 560 S.W.2d 814 (1978); Pilon v. Commonwealth, Ky., 544 S.W.2d 228 (1976); Blaine v. Commonwealth, Ky., 459 S.W.2d 759 (1970).

It is unnecessary for a conviction of trafficking in a controlled substance that the controlled substance be seized by the police or that it be introduced at trial. Conviction can be premised on circumstantial evidence of such nature that, based on the whole ease, it would not be clearly unreasonable for a jury to find guilt beyond a reasonable doubt. Howard v. Commonwealth, Ky.App., 787 S.W.2d 264 (1989). In this case, the jury was instructed that they could find each defendant guilty as either principal or accomplice under alternative theories of criminal liability, i.e., trafficking by sale or transfer, or trafficking by possession with intent to sell or transfer. KRS 218A.1412(1); KRS 218A.010(28). McDuffie testified that Woods told him prior to arriving at Trixie’s Lounge that he had the cocaine and that he intended to sell it to Thomas. That testimony alone supports Woods’s conviction of trafficking by possession with the intent to sell. Howard v. Commonwealth, supra. There was ample evidence that Thomas gave Woods $27,000.00 for the purpose of promoting a sale of cocaine to him by Woods. That was sufficient evidence to convict Thomas of complicity to first-degree trafficking. KRS 502.020(1). Likewise, Graves was present in the vehicle when Woods told McDuffie that he had the cocaine which he intended to sell to Thomas; Graves participated in directing Thomas and Furman to the parking lot where the transaction would take place; and Graves then positioned himself behind the wheel of Woods’s car, a fact from which a jury could infer an intent to aid and abet the commission of the offense by acting as the getaway driver in the event of the need for a hasty departure. That was sufficient circumstantial evidence to convict Graves of complicity to first-degree trafficking. See Skinner v. Commonwealth, Ky., 864 S.W.2d 290 (1993). As for the failure of the police to find any cocaine at the scene, the jury could have believed that Woods, McDuffie, Thomas or Furman, all of whom temporarily escaped, did so with the cocaine in his possession.

WANTON MURDER

The jury was instructed that each appellant could be convicted of the wanton murders of the McDonalds if the jury believed beyond a reasonable doubt that he was a participant in the commission of the offense of first-degree trafficking in a controlled substance, and that his participation in that offense constituted wanton conduct which created a grave risk of death to another under circumstances manifesting extreme indifference to human life, and which resulted in the deaths of the McDonalds. The jury convicted all three appellants of two counts of wanton murder under that instruction.

Bennett v. Commonwealth, Ky., 978 S.W.2d 322, 326-28 (1998) discusses at length the theory under which participation in the commission or attempted commission of a dangerous felony can supply the element of aggravated wantonness necessary to convict of wanton murder. Under the previous common law offense of “felony murder,” the intent to engage in the underlying felony was transferred to the homicide so as to provide the element of malice necessary to convict of intentional murder. (There was no common law offense of wanton murder.) The element of “dangerous[ness]” with respect to the underlying felony could be derived either from the nature of the felony or the method of its 'perpetration or attempted perpetration. Id. at 326-27 (citing R. Perkins, Criminal Law 36 (1st ed. Foundation Press 1957) (emphasis added).

The Kentucky Penal Code eliminated the common law offense of felony murder, but incorporated a similar concept into the offense of wanton murder. Since intent is not an element of wanton murder, the commission of the underlying offense does not supply the mens rea necessary to convict of intentional murder. Instead, the facts concerning the underlying felony and the defendant’s participation therein may satisfy the element of aggravated wantonness necessary to convict of wanton murder. Id. at 327; see also Kruse v. Commonwealth, Ky., 704 S.W.2d 192 (1985). A reasonable jury could (and obviously did) conclude from the facts of this case that the cocaine transaction was still ongoing when Woods’s vehicle driven by Graves collided with the McDonald vehicle. One of the primary theories advanced by the appellants in defense to the charges of first-degree trafficking was that the drug transaction was never completed. ' A clear inference from the evidence presented in this case is that Thomas’s purpose in chasing after and shooting at the occupants of the Woods vehicle was to complete that transaction by obtaining the cocaine for which he had paid Woods $27,000.00; and that Graves’s and Woods’s actions in fleeing from and shooting at the occupants of the Thomas vehicle were inextricably intertwined with Thomas’s efforts to complete the transaction. Thus viewed, the high speed chase and the exchange of gunfire were but circumstances involved in the method of “perpetration or attempted perpetration” of the ongoing drug transaction, Bennett, supra, at 326; and that conduct provided the element of aggravated wantonness necessary to convict all three appellants of the wanton murders of the McDonalds.

DOUBLE JEOPARDY

Convictions of all three appellants of multiple offenses arising out of the described events did not violate the constitutional proscription against double jeopardy. Each offense of which each appellant was convicted required proof of an element which the other offenses did not. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Commonwealth v. Burge, Ky., 947 S.W.2d 805 (1996), cert. denied sub nom., Effinger v. Kentucky, 522 U.S. 971, 118 S.Ct. 422, 139 L.Ed.2d 323 (1997).

Nor was it double jeopardy to convict the appellants of the wanton murders of the McDonalds and also of the underlying offense of first-degree trafficking even though some of the facts surrounding the underlying offense provided the element of aggravated wantonness necessary to convict of the murders. Bennett v. Commonwealth, supra, at 327.

Finally, it was not double jeopardy for the jury to find the appellants guilty under the wanton murder instruction described above after having signed verdict forms finding them not guilty under an alternative theory of wanton murder. If the convictions of wanton murder which were premised on the theory of appellants’ participation in the trafficking offense were being reversed, appellants could argue upon remand that they could not be retried on the other wanton murder theory for which they were acquitted. Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970); McGinnis v. Commonwealth, Ky., 875 S.W.2d 518, 526 (1994), overruled on other grounds, Elliott v. Commonwealth, Ky., 976 S.W.2d 416 (1998). However, the wanton murder convictions premised on appellants’ participation in the trafficking offense are being affirmed. The fact that the jury was instructed on alternative theories of wanton murder does not per se implicate the proscription against double jeopardy.

INSTRUCTIONS

Appellants raise a number of errors pertaining to the form and contents of the instructions. None of these alleged errors were preserved. Thus, they are subject to review only as possible palpable errors. RCr 10.26. Under this rule, an error is reversible only if a manifest injustice has resulted from the error. That means that if, upon consideration of the whole case, a substantial possibility does not exist that the result would have been different, the error will be deemed- nonprejudicial. Jackson v. Commonwealth, Ky.App., 717 S.W.2d 511 (1986).

Appellants point out that the instruction on first-degree trafficking failed to include the element that the accused knew that the substance was cocaine, and that such knowledge is an element of this offense. KRS 218A.1412(1); KRS 501.030(2). However, the evidence was undisputed that Thomas offered to pay $27,000.00 for a kilogram of cocaine; that Woods agreed to sell Thomas a kilogram of cocaine for $27,000.00; and that Graves was present when Woods told McDuffie that he had the cocaine which he intended to sell to Thomas. If the jury believed that Thomas, Woods and Graves were guilty of trafficking in cocaine, they could not have believed that any of the three did not know that the substance was, in fact, cocaine. No palpable error occurred with respect to this omission.

Appellants’ next claim is that the wanton murder instructions under which they were convicted did not require proof of venue, ie., that the offenses occurred in Jefferson County, and that the instructions must require that venue be proved beyond a reasonable doubt. Willis v. Commonwealth, Ky., 339 S.W.2d 174 (1960). However, it was held in Horn v. Commonwealth, 289 Ky. 600, 159 S.W.2d 417 (1942) that omission of that element from an instruction is not prejudicial if there was an abundance of uncontradicted evidence that the offense occurred in the county in which the trial was held. Here, the Commonwealth introduced uncontra-dicted evidence that the trafficking offense occurred in Jefferson County and that the vehicles were headed north on Preston and Shelby Streets from that point until the accident occurred. One cannot drive in that direction and leave Jefferson County without crossing the Ohio River. It was also uncontradicted that the fatal collision occurred at the intersection of Shelby Street and Eastern Parkway which is well south of the Ohio River. The instructions under which the appellants were convicted of first-degree trafficking required the jury to believe beyond a reasonable doubt that the offense occurred in Jefferson County. We do not believe that a substantial possibility exists that the jury would have acquitted the appellants of the wanton murder charges had this oversight not occurred.

Appellants argue that the wanton murder instructions were erroneous in that they did not require the jury to find that they acted with a degree of wantonness manifesting extreme indifference to human life. Instead, the instructions required the jury to find that the appellants were wantonly engaging in conduct which created a grave risk of death to another and that the victims’ deaths were caused under circumstances manifesting extreme indifference to human life. KRS 507.020(l)(b) predicates guilt upon a finding that “under circumstances manifesting extreme indifference to human life, [the defendant] wantonly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person.” (Emphasis added.) The instruction given by the trial judge comports with the language of the statute and is virtually identical to the instruction recommended at 1 Cooper, Kentucky Instructions to Juries (Criminal) § 3.23 (4th ed. Anderson 1993).

ALLEGED “BATSON” VIOLATIONS

Appellants Woods and Graves (both African-Americans) claim so-called “Batson ” violations by the prosecutor and by Appellant Thomas (who is Caucasian) in the exercise of their peremptory strikes. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). There were nine African-Americans among the fifty prospective jurors called for this case. The prosecutor was allotted eleven peremptory strikes and used two of those peremptories to excuse two of the nine African-Americans. The trial judge did not require the prosecutor to explain his peremptory strikes, finding that the appellants had failed to establish a prima facie case that the prosecutor’s strikes were racially motivated. Absent any other indicia of racial motivation, the mere fact that the prosecutor used two peremptory strikes to excuse two of nine African-Americans from the panel does not constitute a prima facie showing that the strikes were racially motivated. Commonwealth v. Snodgrass, Ky., 831 S.W.2d 176, 179 (1992). The trial judge did require counsel for Thomas to articulate racially neutral reasons for using four of his allotted sixteen peremptories to excuse four African-Americans from the panel. Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992); Wiley v. Commonwealth, Ky.App., 978 S.W.2d 333 (1998). Counsel explained that he struck one juror because she worked in the court-monitoring system; a second because he was acquainted with a police lieutenant and his brother was convicted of murder; a third because she'had family members in the court system and made statements during voir dire which indicated she would not accept Thomas’s theory of the case; and the fourth because she had been represented by an attorney in one of the opposing counsels’ office. The trial judge found these to be race-neutral reasons for the strikes and we conclude that her finding was not clearly erroneous.

Stanford v. Commonwealth, Ky., 793 S.W.2d 112 (1990).

OTHER CLAIMS OF ERROR

Woods claims he should have been granted a mistrial when McDuffie testified that Woods was a convicted felon. Actually, McDuffie testified that the reason why he first failed to tell a police interrogator that Woods was the one who had fired the shots from the Woods vehicle was because “I knew he wasn’t supposed to have a gun.” We do not view this statement as evidence that Woods was a convicted felon. Even if we did, there was no necessity for a mistrial. This type of evidentiary error is easily cured by an admonition to the jury to disregard the testimony. Huddleston v. Commonwealth, 251 Ky. 172, 64 S.W.2d 450 (1933); Clay v. Commonwealth, Ky.App., 867 S.W.2d 200 (1993). Woods did not request an admonition.

Graves claims he should have been granted a mistrial when McDuffie testified that “somebody” told him he should “take the Fifth” and refuse to testify and that he thereafter went to the office of Graves’s attorney, who refused to talk to him. Furman then testified that McDuffie suggested that Furman “take the Fifth,” but that he (Furman) explained that he had already waived his Fifth Amendment rights. Although McDuffie did not identify who had urged him to refuse to testify, the clear implication was that it was someone connected with Graves. We have held this kind of evidence admissible as inconsistent with a defendant’s innocence.

Any attempt to suppress a witness’ testimony by the accused, whether by persuasion, bribery, or threat, or to induce a witness not to appear at the trial or to swear falsely, or to interfere with the processes of the court is evidence tending to show guilt. ■

Foley v. Commonwealth, Ky,, 942 S.W.2d 876, 887 (1996), cert. denied, 522 U.S. 893, 118 S.Ct. 234, 139 L.Ed.2d 165 (1997); see also Tamme v. Commonwealth, Ky., 973 S.W.2d 13, 29-32 (1998), cert. denied, 525 U.S. 1158, 119 S.Ct. 1056, 143 L.Ed.2d 61 (1999).

Graves claims he was entitled to a directed verdict of acquittal of the charge of first-degree criminal mischief, because the Commonwealth failed to prove that the McDonald vehicle was worth at least $1,000.00. KRS 512.020. However, Graves’s motion for a directed verdict was only on “all charges” and not specifically on the criminal mischief charge. Nor did he object to the instruction on criminal mischief. When there are multiple counts, the proper procedure for challenging the sufficiency of evidence on one particular count is to object to the giving of an instruction on that count. Seay v. Commonwealth, Ky., 609 S.W.2d 128 (1980); Kimbrough v. Commonwealth, Ky., 550 S.W.2d 525 (1977). Graves also claims the evidence was insufficient to support his conviction of first-degree wanton endangerment of Kenneth Weathers. We believe his participation in the high speed chase sufficiently involved him in the endangerment of Weathers to support his conviction in that regard.

Woods claims it was error to permit the husband and father of "the two victims to “glorify the victims” with his testimony. Woods did not object to this testimony at trial and we find the evidence did no more than humanize the victims, which is permissible evidence. McQueen v. Commonwealth, Ky., 669 S.W.2d 519, 523 (1984), cert. denied, 469 U.S. 893, 105 S.Ct. 269, 83 L.Ed.2d 205 (1984).

Thomas’s claim that his trial should have been severed from that of his co-defendants is devoid of merit. Ware v. Commonwealth, Ky., 537 S.W.2d 174 (1976).

For the reasons set forth in this opinion, the convictions and sentences imposed by the Jefferson Circuit Court in these consolidated cases are affirmed.

LAMBERT, C.J., and GRAVES and WINTERSHEIMER, JJ., concur.

KELLER, J., dissents in a separate opinion in which JOHNSTONE and STUMBO, JJ., join.

COOPER, J., not sitting.

KELLER, Justice,

dissenting.

I dissent from the majority opinion for three reasons: First, the trial court should have directed a verdict in favor of appellant Thomas as to his charge of complicity to trafficking in cocaine. Second, the trial court’s improper commingling of the crimes of trafficking in cocaine and wanton murder in the jury instruction under which all three appellants were convicted of wanton murder requires reversal of those convictions. Third, appellant Graves’s conviction for complicity to trafficking in cocaine should be reversed and remanded for a new trial because the trial court wrongfully allowed the Commonwealth to introduce evidence which implied that someone connected with Graves contacted a prosecution witness and told the witness not to testify. Because the Commonwealth introduced no evidence that Graves or someone acting on his behalf attempted to suppress the witness’s testimony, this evidence was prejudicial and could well have influenced Graves’s trafficking conviction. ■

APPELLANT THOMAS’S CONVICTION FOR TRAFFICKING IN COCAINE

As to Thomas, I find no evidence to support an instruction on trafficking in cocaine, and the trial court should have directed a verdict against the Commonwealth as to this charge. Certainly, all of the evidence suggests that Thomas had every intention of purchasing a huge amount of cocaine. However, the Commonwealth concedes that Thomas never received any quantity of cocaine, and the tragic events of this evening followed from the undisputed fact that Thomas surrendered $27,000 to Woods but did not receive his drugs in return. KRS 218A.1412 criminalizes as first degree trafficking in a controlled substance “knowingly and unlawfully trafficking in” a number of controlled substances including cocaine and KRS 218A.010(28) defines “traffic”:

“Traffic,” ... means to manufacture, distribute, dispense, sell, transfer or possess with intent to manufacture, distribute, dispense, or sell a controlled substance.

While the majority appears comfortable affirming Thomas’ conviction on the basis of the complicity statute contained at KRS 502.020(1), such a conclusion is explicitly barred by KRS 502.040(1), which explains that:

A person is not guilty under KRS 502.010 or 502.020 for an offense committed by another person when:
(1) The offense is so defined that his conduct is inevitably incident to its commission.

The 1974 Commentary to this statutory provision explains that subsection one is intended to apply to transactional offenses:

Subsection (1) provides for two exemptions to the general doctrine of imputed liability for conduct which aids in the perpetration of crime.... The second is for a person who joins another in a two-party transaction that constitutes a crime.... As a consequence of this exemption, the purchaser of an alcoholic drink cannot be convicted as an accomplice under a statute which provides a penalty only for the seller.

In other words, KRS 502.040 reasonably limits the reach of the complicity statute and prevents a drug purchaser from being charged with trafficking. A number of jurisdictions have interpreted this Model Penal Code provision to bar prosecution of drug buyers and sellers for complicity in the crime committed by the other party to the transaction. See, e.g., People v. Manini, 79 N.Y.2d 561, 584 N.Y.S.2d 282, 594 N.E.2d 563 (1992) (a seller of a controlled substance is not an accomplice in the possession crime of his buyer); Robinson v. Texas, 815 S.W.2d 361 (Tex.App.1991) (a buyer of drugs is not an accomplice in the “delivery” crime committed by his seller); Louisiana v. Celestine, 671 So.2d 896 (La.1996) (buyer of drugs is not an accomplice in the “distribution” crime committed by his seller); Owes v. Alabama, 638 So.2d 1383 (Ala.Crim.App.1993) (buyer of cocaine is not an accomplice in the “sale” crime committed by his seller); Long v. Arkansas, 260 Ark. 417, 542 S.W.2d 742 (1976) (buyer of narcotics cannot be an accomplice in the illegal sale of drugs by his seller); Colorado v. Hart, 787 P.2d 186 (Colo.App.1989) (“the conduct of one who takes delivery of the controlled substance is “inevitably incident” to the criminal conduct of one who delivers the controlled substance”); Commonwealth v. Fisher, 426 Pa.Super. 391, 627 A.2d 732 (1993) (buyer of drugs cannot be an accomplice in the “delivery” crime committed by his seller).

Thomas cannot therefore, as a matter of statutory law, be liable as an accomplice for the crime of trafficking in cocaine because all of the evidence presented indicates that he was the intended “buyer” in this transaction. In addition, the evidence presented by the Commonwealth would not permit the trial court to instruct the jury that they could find Thomas guilty as a principal of the offense since the record contains no evidence that Thomas sold or transferred cocaine and the Commonwealth concedes that he never possessed this alleged cocaine. KRS 218A.1412; See, e.g. Butler v. Commonwealth, Ky., 560 S.W.2d 814 (1978); Pilon v. Commonwealth, Ky., 544 S.W.2d 228 (1976).

The Commonwealth presented a purely circumstantial case for trafficking in cocaine by Woods (the alleged dealer) and Graves (the alleged dealer’s driver), but the testimony relating to preparations for the transaction and the admission by Woods to McDuffie that he had the cocaine were sufficient evidence to allow the trial court to instruct the jury on the crime of trafficking in cocaine as to Woods and Graves. While the evidence that Woods possessed a quantity of cocaine for sale was far from overwhelming, I feel that “under the evidence as a whole, it [was not] clearly unreasonable for a jury to find the defendant guilty.” Trowel v. Commonwealth, Ky., 550 S.W.2d 530 (1977). The jury could have determined rationally, consistently with the evidence, and beyond a reasonable doubt that Woods had been in possession of cocaine for sale, and the trial court was correct to deny the motions for directed verdicts made by counsel for Woods and Graves. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

THE WANTON MURDER CONVICTIONS

Each of the three appellants was convicted of two counts of wanton murder under an instruction which read:

NO. [] — WANTON MURDER
If you do not find the defendant, [ ], guilty under Instruction No. 1, and if you find the defendant, [ ], guilty of Trafficking in a Controlled Substance in the First Degree under Instruction No. 2, then you will find him guilty under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
a. That during the course of Trafficking in a Controlled Substance in the First Degree and as a consequence thereof, [ ] McDonald was killed;
AND
b. That by so participating in the offense of Trafficking in a Controlled Substance in the First Degree the defendant was wantonly engaging in conduct which created a grave risk of death to another and that [ ] McDonald’s death was caused under circumstances manifesting extreme indifference to human life.
If you find the defendant guilty under this instruction, you shall say so by your verdict and no more.

As explained above, the Commonwealth introduced insufficient evidence of defendant Thomas’s complicity in the crime of trafficking in cocaine to justify the trial court’s instruction of the jury as to the offense. Because the trial court should have directed a verdict against the Commonwealth as to Thomas’s charge of Trafficking in a Controlled Substance in the First Degree, his wanton murder convictions must be reversed as well because the jury instructions intertwined the crimes and required criminal liability for trafficking in cocaine as a prerequisite to convictions for wanton murder.

Further, the form of the wanton murder instructions under which the jury found all three appellants guilty require this Court to reverse those convictions regardless of the evidence of trafficking in cocaine. While the Commpnwealth may have introduced sufficient evidence to support wanton murder instructions based on one or more of the the appellants’ roles in the car chase, the Commonwealth encouraged the jury to find the defendants guilty under the other wanton murder instruction premised on trafficking in cocaine, and the jury did so. Consequently, this Court’s review does not focus on whether the Commonwealth introduced sufficient evidence to justify any instruction on wanton murder, but instead, we must determine whether the evidence introduced at trial justified the specific instruction given. Fugate v. Commonwealth, Ky., 445 S.W.2d 675, 677 (1969).

The trial judge should never have given the second wanton murder instruction which integrated the trafficking offense because only the most tortured analysis can imagine a causal relationship between the appellants’ alleged participation in the drug transaction and the deaths. The Mc-Donalds were killed almost five miles away from the site where the alleged drug transaction was supposed to have occurred. No transaction was “ongoing”.at that time, and the majority’s attempt to describe the two offenses as “inextricably intertwined” is imaginative, but devoid of a meaningful factual or authoritative support. The drug transaction had ended. The car chase which followed Thomas’s discovery that the cocaine had not been delivered to him cannot be melded into the prior attempt at a drug transaction by the sheer will of the Commonwealth or this majority opinion. Labeling one’s own result-oriented conclusions as “clear inference[s] from the evidence presented in this case” does not make them so, and the majority’s theory that the high speed chase and whizzing bullets were merely an attempt at completing the drug transaction exceeds even the most liberal interpretation of reasonable inferences. KRS 218A.1412 defines the boundaries of the crime of first degree trafficking in a controlled substance, and it leaves no room for the majority’s expanded interpretation.

The Kentucky Penal Code provision which explains causal relationships, KRS 501.060(3), notes, “When wantonly ... causing a particular result is an element of an offense, the element is not established if the actual result is not within the risk of which the actor is aware.... ” “[T]he plain intent of the statute is to have the causation issue framed in all situations in terms of whether or not the result as it occurred was either foreseen or foreseeable by the defendant as a reasonable possibility.” R. Lawson and W. Fortune, Kentucky Criminal Law, Sect. 2-4(d)(3), at 74 (LEXIS 1998).

The bottom line is that the trial court should have instructed the jury as to this “felony wanton murder” theory only if the evidence presented tended to prove beyond a reasonable doubt (1) that drug trafficking created a substantial and unjustifiable risk that fatal auto accidents would occur, and (2) that the appellants appreciated this risk and consciously disregarded. No such evidence was introduced. The Commonwealth did introduce testimony from. Furman, one of the unindicted accomplices, that dealing in drugs “could be very dangerous” and that “people can get killed over drug deals,” but produced no evidence of the types of risks upon which the trial court instructed the jury. The fatal automobile accident involving two innocent parties five miles from the scene of the attempted drug transaction is beyond the scope of risks proven by the Commonwealth to be incident to drug trafficking. Without such proof, the instruction was improper and all of the wanton murder convictions must be reversed.

GRAVES’S COUNSEL, McDUF-FIE/FURMAN & THE FIFTH AMENDMENT

At trial, the Commonwealth introduced evidence that McDuffie and Furman, with whom the Commonwealth had cut a deal in exchange for testimony, considered invoking their rights to remain silent under the Fifth Amendment to the United States Constitution. Specifically, the Commonwealth introduced evidence: (1) that an unknown person approached McDuffie and suggested that he “plead the Fifth,” after which McDuffie went to see Graves’s attorney, Mr. Stewart; and (2) that McDuffie tried to persuade Furman to “take the Fifth Amendment.” In addition, the Commonwealth asked Furman whether “when Aaron [McDuffie] was talking to you about pleading the Fifth, did he suggest that you go talk to Mr. Graves’ attorney like he wanted to go talk to?” Furman answered in the negative. Finally, in closing argument, the prosecution underscored this testimony by reminding the jury that “people have come and talked to [McDuffie] about taking the Fifth ... there’s been a lot of pressure on him by others not to testify.”

The majority addresses Graves’s claim of error by stating, “Although McDuffie did not identify who had urged him to refuse to testify, the clear implication was that it was someone connected with Graves. We have held this kind of evidence admissible as inconsistent with a defendant’s innocence.” However, the Commonwealth introduced absolutely no evidence to connect appellant Graves or his counsel with any attempt to get McDuffie or Furman to refuse to testify. The Commonwealth conceded that Mr. Stewart did not speak with McDuffie or Furman, and the attempt to connect this evidence to Graves cannot be supported even by a reasonable inference based on the evidence at trial. “It is a rule ... in this jurisdiction that evidence that a witness has been threatened or otherwise influenced in an attempt to suppress his testimony is admissible in a criminal prosecution only where the threat was made by, or on behalf of the accused.” Campbell v. Commonwealth, Ky., 564 S.W.2d 528, 531 (1978). Where there is no evidence to connect the defendant with the attempt to suppress testimony, the testimony is clearly inadmissible. Id.

Without question, evidence and commentary of this type is highly prejudicial and inflammatory. The majority opinion recognizes this in labeling this type of evidence “inconsistent with a defendant’s innocence.” Particularly in a case such as this one, where the case for trafficking in cocaine is premised on accomplice liability and circumstantial evidence, I cannot conclude that this inadmissible evidence was harmless as to the first degree trafficking in a controlled substance conviction. The evidence of guilt on the charges of wanton endangerment, criminal mischief, speeding and disregarding a traffic control device is overwhelming, and, with respect to those convictions, I believe the inadmissible evidence and commentary regarding McDuf-fie’s and Furman’s thoughts about invoking the Fifth Amendment was harmless error as contemplated in RCr 9.24. I would, however, reverse Graves’s conviction for first degree trafficking in a controlled substance.

I would reverse appellant Thomas’s conviction for trafficking in a controlled substance first degree and both of his wanton murder convictions, appellant Woods’s convictions for wanton murder, and both appellant Graves’s conviction for trafficking in a controlled substance first degree and his wanton murder convictions. I would remand all three appellants’ cases for further proceedings consistent with this opinion.

JOHNSTONE and STUMBO, JJ., join this dissent.

      . In fact, the first instruction given by the trial court with respect to appellant Graves correctly directed the jury to assess his homicide liability on the basis of the car chase: You will find the defendant, Avery Graves, guilty under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
      a. That in Jefferson County, Kentucky, on or about the 8th day of February, 1995, he, killed [ ] Mcdonald by striking [him or her] with a car.
      AND
      b. That in so doing, he was wantonly engaging in conduct which created a grave risk of death to another and thereby caused the death of [ ] McDonald under circumstances manifesting an extreme indifference to human life.
      If you find the defendant guilty under this instruction, you shall say so by your verdict and no more.


source: Caselaw Access Project

author: COOPER, Justice.

license: Public Domain

text:
    Jonathan Leigh PHILLIPS, Appellant, v. COMMONWEALTH of Kentucky, Appellee. John Demarco Johnson, Appellant, v. Commonwealth of Kentucky, Appellee.
    Nos. 1997-SC-0519-MR, 1997-SC-0536-MR.
    Supreme Court of Kentucky.
    Feb. 24, 2000.
    Rehearing Denied June 15, 2000.

      John Palombi, Assistant Public Advocate, Department of Public Advocacy, Frankfort, for appellant Jonathan Leigh Phillips.
    A.B. Chandler, III, Attorney General, Frankfort, Gregory C. Fuchs, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, for appellee Commonwealth of Kentucky.
    V. Gene Lewter, Fayette County Legal Aid, Inc., Lexington, for appellant John DeMarco Johnson.
    A.B. Chandler, III, Attorney General, Frankfort, Ian G. Sonego, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, for appellee Commonwealth of Kentucky.
   COOPER, Justice.

On Thanksgiving Day, November 28, 1996, seventeen-year-old Natasha Yates was shot and killed during an exchange of gunfire between Appellants Jonathan Leigh Phillips and John DeMarco Johnson. Following a joint trial in the Fayette Circuit Court, both Phillips and Johnson were convicted of wanton murder, KRS 507.020(l)(b), and each was sentenced to twenty-five years in prison. Phillips was also convicted of tampering with physical evidence, KRS 524.100, and received a concurrent sentence of five years in prison for that conviction. Both appeal to this Court as a matter of right. Ky. Const. § 110(2)(b).

I. FACTS.

On the day in question, Phillips, Yates and Terry Burchett were socializing with other friends at the residence of Burchett’s sister in Lexington, Kentucky. Phillips admitted that he had smoked some crack cocaine either shortly before or after arriving at that residence, and that all three had smoked some marijuana while at the residence. A decision was made to purchase some more crack cocaine. To that end, Phillips, Yates and Burchett proceeded in an automobile which belonged to Yates’s mother to the Charlotte Court neighborhood in Lexington. At Phillips’s direction, Burchett brought with him a .38 caliber revolver which had been loaned to him several weeks prior by David McCall, a resident of Paintsville, Kentucky. Phillips drove the automobile, Burchett sat in the front passenger seat, and Yates sat on the console between Phillips and Burchett. Burchett placed the handgun under the front passenger seat.

Upon arriving at Charlotte Court, Phillips got out of the vehicle and purchased a thirty-dollar “rock” of crack cocaine from a street dealer. He placed the cocaine in his shirt pocket and reentered the vehicle, whereupon Johnson, who was standing nearby and who was not involved in the cocaine transaction, called out to Phillips in an apparently offensive manner. Phillips responded in kind and Johnson threw a bottle which sailed over the top of the Yates vehicle. According to Phillips, he then saw Johnson reach under his shirt as if to draw a weapon. Phillips told Bur-chett to give him the .38 revolver. Both Phillips and Burchett testified that as Bur-chett was passing the .38 revolver to Phillips, Johnson fired two shots at their vehicle, one of which passed through the glass of the driver’s side window; that Phillips fired two shots back at Johnson, who ran away; and that Phillips then drove Yates’s vehicle away from the scene. Johnson testified that after he threw the bottle, shots were fired at him from the Yates vehicle; and that he first sought cover, then fired two shots back at the vehicle as it was leaving the scene.

Upon leaving Charlotte Court, Phillips and Burchett discovered that Yates had been shot. Phillips suggested that he and Burchett abandon Yates and the car, but Burchett insisted that they take Yates to a hospital. When they arrived at the parking lot of Columbia Hospital, Phillips got out of the car and told Burchett to give him the revolver and not to mention his name or that Yates had been shot during a drug deal. Phillips then walked away in possession of both the revolver and the $30.00 rock of crack cocaine. Burchett drove Yates to the hospital’s emergency room. After leaving the vehicle, Phillips removed the crack cocaine from his shirt pocket and smoked it. He then made several telephone calls to Burchett’s sister’s residence in an unsuccessful attempt to induce someone to meet him and take him home. During these conversations, Phillips claimed that Burchett had taken Yates to the hospital because Yates had been in an “accident,” but that she would be all right. Yates subsequently died of a gunshot wound to the head.

On November 29,1996, the day after the shooting, Phillips drove to Paintsville and delivered the .38 revolver to its owner, David McCall. McCall testified that the weapon was fully loaded with live ammunition when it was returned to him.

II. ISSUES PERTAINING TO PHILLIPS.

Phillips' asserts (1) the evidence was insufficient to convict him of wanton murder; (2) he was entitled to an instruction on self-protection; (3) the evidence was insufficient to convict him of tampering with physical evidence; (4) he should have been tried separately from Johnson; and (5) evidence of his desire to abandon Yates and that he smoked the crack cocaine was evidence of “other bad acts” which should have been suppressed pursuant to KRE 404(b).

1. Wanton murder.

It is undisputed that the bullet that killed Yates was fired by Johnson, not Phillips. Thus, Phillips claims that even though the evidence might have supported his conviction of wanton endangerment or attempted murder of Johnson (offenses for which he was not indicted), it did not support his conviction of the murder of Yates. We agree that Phillips and Johnson were not acting in concert with each other so as to create accomplice liability under KRS 502.020. Rather, the issue is one of causation.

Under the common law, proof of causation sufficient to convict of criminal homicide required either a direct act of force by the defendant against the victim, or an indirect act by the defendant, the probable and natural consequence of which was. the death of the victim. J. Roberson, Kentucky Criminal Law and Procedure § 278 (2d ed. Anderson 1927); e.g., Graves v. Commonwealth, Ky., 273 S.W.2d 380 (1954); Hubbard v. Commonwealth, 304 Ky. 818, 202 S.W.2d 634 (1947). This principle did not always require that death result from the direct application of physical force by the defendant against the victim. Roberson, supra, §§ 277, 278. Thus, in Sanders v. Commonwealth, 244 Ky. 77, 50 S.W.2d 87 (1932), a conviction of manslaughter was upheld where the’ defendant threatened his wife with a deadly weapon while they were in a moving vehicle and she jumped from the vehicle to her death. And in Cassell v. Commonwealth, 248 Ky. 579, 59 S.W.2d 544 (1933), where the defendant was charged with poisoning his wife, it was held that the criminality of the act was the same whether he administered the poison, himself, or put it in her way to take innocently. Id., 59 S.W.2d at 547. However, no cases are found where a defendant was held criminally liable because his act provoked another to inadvertently kill an innocent third party. See generally Roberson, supra, § 395, at 525.

The facts of this case implicate three provisions of the penal code. A person is guilty of wanton murder if, “under circumstances manifesting extreme indifference to human life, he wantonly engages in conduct which creates a grave risk, of death to another person and thereby causes the death of another person.” KRS 507.020(l)(b). “Wantonly” is defined as awareness and conscious disregard of a substantial and unjustifiable risk that particular conduct would cause a particular result. The test is an objective’ one. “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.” KRS 501.020(3). Causal relationships are addressed in KRS 501.060, which provides in pertinent part as follows:

(1) Conduct is the cause of a result when it is an antecedent without which the result in question would not have occurred.
(2) When intentionally causing a particular result is an element of an offense, the element is not established if the actual result is not within the intention or the contemplation of the actor unless:
(a) The actual result differs from that intended or contemplated, as the case may be, only in the respect that a different person or different property is injured or affected....
(3) When wantonly ... causing a particular result is an element of an offense, the element is not established if the actual result is not within the risk of which the actor is aware unless:
(a) The actual result differs from the probable result only in the respect that a different person ... is injured or affected....
(4) The question of whether an actor knew or should have known the result he caused was rendered substantially more probable by his conduct is an issue of fact.

This statute was adopted from section 2.03 of the Model Penal Code. Subsection (2)(a) extends the common law concept of transferred intent, which is codified with respect to intentional murder in KRS 507.020(l)(a), to other intentional crimes. Thus under either KRS 507.020(l)(a) or KRS 501.060(2)(a), the defendant is guilty of intentional murder if he intended to kill one person (Y-l), but instead killed another (V-2). R. Lawson and W. Fortune, Kentucky Criminal Law § 2-4(e)(l) (LEXIS 1998); e.g., Smith v. Commonwealth, Ky., 734 S.W.2d 437 (1987), cert. denied, 484 U.S. 1036, 108 S.Ct. 762, 98 L.Ed.2d ; 778 (1988). Similarly, KRS 501.060(3)(a) creates the concept of transferred wantonness, a theory of criminal liability unfamiliar to our common law. Under KRS 501.060(3)(a), a defendant is guilty of wanton murder if, under circumstances manifesting extreme indifference to human life, he wantonly engages in conduct which creates a grave risk of death to one person (V — 1) and thereby causes the death of another (V-2).

Pennsylvania has a statute, 18 Pa. Cons.Stat. § 303, which is identical to KRS 501.060 in all relevant respects. In Com monwealth v. Gaynor, 538 Pa. 258, 648 A.2d 295 (1994), Gaynor and (coincidentally) Johnson were arguing inside a store and began shooting at each other. Neither was injured, but shots fired by Johnson killed one innocent bystander and wounded two others. Concluding that he had participated in the shoot-out with the intent to kill Johnson, the Supreme Court of Pennsylvania upheld Gaynor’s conviction of the intentional murder of the innocent bystander under the transferred intent theory embodied in 18 Pa.Cons.Stat. § 303(b)(1), which is the equivalent of KRS 501.060(2)(a). That result is consistent with our holding in Smith v. Commonwealth, supra. Similarly, in the case sub judice, if Phillips was acting with aggravated wantonness with respect to Johnson and Yates was resultantly killed, Phillips is guilty under KRS 501.060(3)(a) of the wanton murder of Yates.

Assuming the jury believed, as they obviously did, that Phillips fired first, they also could have found Phillips guilty under KRS 507.020(l)(b) on the basis that by shooting at Johnson, Phillips was acting with aggravated wantonness with respect to Yates. Although Phillips testified that he did not consider purchasing crack cocaine from a street dealer at Charlotte Court to be a dangerous endeavor, the jury was entitled to believe otherwise, especially since Phillips had directed Burchett to bring a firearm along on the trip. And although Phillips may have hoped he was shooting at an unarmed man, a jury could reasonably conclude that a person who deemed it necessary to arm himself before going to that neighborhood would have been aware of the risk that others in the neighborhood, e.g., Johnson, would also be armed and, if fired upon, would return fire. Phillips shot at Johnson from inside the vehicle while seated directly beside Yates. A jury could further reasonably conclude that a person in Phillips’s position would have been aware of the risk that if Johnson returned fire and did not hit Phillips, the shot might very well hit the person seated next to him in the ear. Thus, even without KRS 501.060(3)(a), Phillips would be guilty of wanton murder, because a jury could reasonably believe that “under circumstances manifesting extreme indifference to [Yates’s] life, he wantonly engaged] in conduct which create[d] a grave risk of death to [Yates] and thereby cause[d] the death of [Yates].” KRS 507.020(l)(b).

2. Self-protection.

Phillips claims he was entitled to an instruction on self-protection on his theory that Johnson shot first. No doubt, if Phillips had been charged with the wanton endangerment or attempted murder of Johnson, he would have been entitled to an instruction on self-protection with respect to those offenses. And under the common law, he would have been entitled to the instruction even though the victim was an innocent bystander.

It long has been the settled rule that, if at the time appellant shot the deceased he was shooting at Terry, under circumstances that would have made the shooting and killing of Terry excusable on the ground of self-defense, and deceased was accidentally and unintentionally shot and killed by a bullet intended for Terry, appellant was entitled to an acquittal.

Minix v. Commonwealth, 266 Ky. 801, 100 S.W.2d 825, 826 (1937). The penal code changed the law in that respect. KRS 503.120(2) provides as follows:

When the defendant is justified under KRS 503.050 to 503.110 in using force upon or toward the person of another, but he wantonly or recklessly injures or creates a risk of injury to innocent persons, the justification afforded by those sections is unavailable in a prosecution for an offense involving wantonness or recklessness toward innocent persons.

As the Court of Appeals held in Kohlheim v. Commonwealth, Ky.App., 618 S.W.2d 591 (1981), this statute precludes an instruction on self-protection if the defendant’s wanton or reckless use of deadly force caused the death of an innocent person. Thus, Phillips was not entitled to an instruction on self-protection as a defense to the wanton murder of Yates.

3. Tampering mth physical evidence.

The indictment for this offense was predicated on Phillips’s disposal of the crack cocaine by ingestion, his apparent removal and disposal of two spent cartridges from the .38 revolver, and his return of the revolver to its owner in Paints-ville. Phillips asserts there was no proof that any of those acts were motivated by a belief that the cocaine, the spent cartridges, or the revolver constituted physical evidence which might be used in an official proceeding. KRS 524.100. To summarize the relevant evidence: Phillips first suggested to Burchett that they abandon Yates and her vehicle (inferentially for the purpose of concealing them participation in the shooting); he took the cocaine and the .38 revolver with him when he deserted Burchett. and Yates at the Columbia Hospital parking lot and told Burchett not to mention his name or that Yates had been shot in a drug deal; he disposed of the cocaine by ingestion even before attempting to find a ride home; he told Yates’s friends that Yates had been hurt in an “accident;” he personally delivered the .38 revolver to McCall in Paints-ville the next day, instead of simply returning it to Burchett, who was still in Lexington; and when he delivered the revolver to McCall, it was fully loaded, despite the fact’that Phillips admits that he fired two rounds at Johnson.

In Burdell v. Commonwealth, Ky., 990 S.W.2d 628, 632-33 (1999), we held that, one who destroys, mutilates, conceals, removes or alters physical evidence contemporaneously with the commission of his crime can be convicted of tampering with physical evidence even though no official proceeding was pending or had been instituted when the tampering occurred. “The compelling logic of these decisions is that one who has committed a criminal act and

then conceals or removes the evidence of his crime does so in contemplation that the evidence would be used in an official proceeding which might be instituted against him.” Id. at 633. Phillips’s actions immediately following and within twenty-four hours of the shooting clearly, inferred guilty knowledge and an intent to conceal the circumstances of Yates’s death and his involvement therein. This evidence was sufficient to support the jury’s conclusion that the actions he took with respect to the evidence connecting him to Yates’s death constituted the offense of tampering with physical evidence. Commonwealth v. Ben-ham, Ky., 816 S.W.2d 186 (1991).

4. Denial of separate trials.

Phillips’s claim of entitlement to a separate trial is premised upon the fact that Johnson accused him of being the first to shoot, and his perception that he was thus being prosecuted by both the Commonwealth’s attorney and Johnson’s attorney. Suffice it to say that:

[Njeither antagonistic defenses nor the fact that the evidence for or against one defendant incriminates the other amounts, by itself, to unfair prejudice .... That different defendants alleged to have been involved in the same transaction have conflicting versions of what took place, or the extent to which they participated in it, vel non, is a reason for rather than against a joint trial. If one is lying, it is easier for the truth to be determined if all are required to be tried together.

Ware v. Commonwealth, Ky., 537 S,W.2d 174, 177 (1976).

As in Burdell v. Commonwealth, supra, this was not a case in which evidence was admitted which was competent as to one defendant, but incompetent as to the other, e.g., Cosby v. Commonwealth, Ky., 776 S.W.2d 367 (1989), cert. denied, 493 U.S. 1063, 110 S.Ct. 880, 107 L.Ed.2d 963 (1990), overruled on other grounds, St. Clair v. Roark, 10 S.W.3d 482 (Ky., 1999); or one where Appellant’s co-defendant was charged as an habitual offender, but Appellant was not, e.g., Hardin v. Commonwealth, Ky., 437 S.W.2d 981 (1968). There is a legitimate preference for joint trials, Wilson v. Commonwealth, Ky., 836 S.W.2d 872 (1992), cert. denied, 507 U.S. 1034, 113 S.Ct. 1857, 123 L.Ed.2d 479 (1993), overruled on other grounds, St. Clair v. Roark, supra, and the trial judge has broad discretion in determining whether to sever joint indictments. The trial judge’s decision in that regard will not be overturned absent a showing of undue prejudice to the defendant and a clear abuse of discretion, neither of which occurred in this case. Burdell v. Commonwealth, supra, at 634; Dishman v. Commonwealth, Ky., 906 S.W.2d 335 (1995).

5. Other bad acts.

KRE 404(b) precludes evidence of other bad acts only if the evidence is offered to prove the character of a person in order to show that he acted in conformity therewith. Such evidence is admissible if it is relevant for some other legitimate purpose. KRE 404(b)(1); Tamme v. Commonwealth, Ky., 973 S.W.2d 13, 29 (1998), cert. denied, 525 U.S. 1153, 119 S.Ct. 1056, 143 L.Ed.2d 61 (1999). In this case, the ingestion by Phillips of the crack cocaine was an integral part of the offense of tampering with physical evidence. Likewise, evidence that Phillips wanted to abandon Yates and her automobile was relevant to prove Phillips’s desire to conceal his involvement in the shooting of Yates, thus his motive for tampering with the cocaine and the .38 revolver.

III. ISSUES PERTAINING TO JOHNSON.

Johnson asserts (1) the jury should not have been instructed on wanton murder, because his act of shooting at Phillips was an intentional act of self-defense; and (2) the trial judge should have declared a mistrial when Phillips mentioned the word “polygraph.”

1. Wanton murder.

With respect to Johnson, the trial judge instructed the jury on alternative theories of transferred intent and wanton murder. The instruction on transferred intent was qualified by the privilege to act in self-protection. The instruction on wanton murder was not so qualified. Thus, the instructions conformed to KRS 503.120(2), quoted supra, which precludes self-protection as a defense if the defendant wantonly or recklessly injured an innocent bystander. Furthermore, McGinnis v. Commonwealth, Ky., 875 S.W.2d 518 (1994), which had held that a claim of self-defense precludes an instruction on wanton murder was overruled on that specific point in Elliott v. Commonwealth, Ky., 976 S.W.2d 416, 422 (1998).

2. “Polygraph.

Phillips had initially denied to the police that he had fired any shots at Johnson. During his direct examination at trial, he testified that he decided to tell the truth after he was asked to submit to a polygraph examination. Johnson asserts that this reference to a polygraph examination automatically entitled him to a mistrial. We disagree. In Tamme v. Commonwealth, supra, at 33, we held that mere utterance of the word “polygraph” is not grounds for reversal. As in Tamme and in McQueen v. Commonwealth, Ky ., 669 S.W.2d 519, 523 (1984), cert. denied, 469 U.S. 893,105 S.Ct. 269, 83 L.Ed.2d 205 (1984), there was no indication that Phillips underwent a polygraph examination, much less that he passed it. “There must arise a clear inference that there was a result and that the result was favorable, or some other manner in which the inference could be deemed prejudicial.” Tamme, supra, at 33 (quoting McQueen, supra, at 523). Johnson’s reliance on Morgan v. Commonwealth, Ky., 809 S.W.2d 704 (1991) is misplaced. In Morgan, the witness was a polygraph examiner, who was identified to the jury as a police officer possessing “special interrogation skills,” and his testimony created a clear inference that the defendant had taken and failed a polygraph examination. The prejudice associated with evidence that the defendant or a witness underwent a polygraph examination is the resulting inference that the polygraph examination either confirmed or belied the truthfulness of the witness’s testimony at trial. Absent evidence that the witness underwent a polygraph examination, no such inference arises.

Accordingly, the judgments of conviction and the sentences imposed by the Fayette Circuit Court are affirmed.

LAMBERT, C.J.; GRAVES, JOHNSTONE, STUMBO and WINTERSHEIMER, JJ., concur.

KELLER, J., not sitting.


author: WINTERSHEIMER, Justice.

text:
    Robert C. FOLEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 1997-SC-1098-MR, 1998-SC-0378-MR and 1998-SC-0379-MR.
    Supreme Court of Kentucky.
    March 23, 2000.
    As Modified on Denial of Rehearing June 15, 2000.

      Kathleen K. Schmidt, Shepherdsville, Randall L. Wheeler, Assistant Public Advocate, Frankfort, Counsel for Appellant.
    A.B. Chandler III, Attorney General, Connie Vance Malone, Assistant Attorney General, Susan Ronearti, Assistant Attorney General, Paul D. Gilbert, Assistant Attorney General, Criminal Appellate Division, Frankfort, Thomas V. Handy, Commonwealth Attorney, London, Counsel for Appellee.
   WINTERSHEIMER, Justice.

This appeal is from a denial of a RCr 11.42 motion seeking the vacation of two murder convictions and sentences of death because of allegations of ineffective assistance of counsel.

In 1993, the Laurel Circuit Court imposed two death sentences on Foley pursuant to convictions for the murders of two people. In that case, Foley set out 26 allegations of error seeking a reversal of his conviction. After reviewing the record, the briefs and hearing oral arguments, this Court affirmed the conviction in Foley v. Commonwealth, Ky., 942 S.W.2d 876 (1997).

The events that culminated in the violent deaths of the two Vaughn brothers occurred on the evening of August 17, 1991, when ten other adults were at the home of Foley, along with five children. Other male guests had checked their pistols in the kitchen cabinet, but Foley kept his .38 colt snub-nose revolver concealed in the small of his back, under his belt and shirt. The first victim consumed enough alcohol to become belligerent and two fights erupted between Foley and the first victim. Foley admits that he started the first fight and later in the evening shot and killed the first victim. The deceased received multiple gunshot wounds to the left arm and body which resulted in hemorrhaging and death. Foley claims he acted in self-defense. Shortly thereafter, the second victim was killed at a time when only Foley, the victim and Ronnie Dugger remained inside the house. Foley claims that Dugger shot the victim while Dugger testified that Foley shot the victim in the back of the head. The victim died as a result of multiple penetrating and perforating gunshot wounds to the head and extremities. After the killings, Foley, Dugger and two other individuals dumped the bodies into a creek in Laurel County.

As noted in the opinion of the Court in Foley, supra, Foley was charged on October 26, 1991, with killing four other people whose bodies had been found in a septic tank in Laurel County. Prior to the indictment on the later charges, the district court had restrained all law enforcement personnel and court personnel from making any public comment about the case.

After this Court affirmed the jury verdict in 1997, Foley filed an unsuccessful petition for a writ of certiorari in the United States Supreme Court. Three days after that denial he faxed to the Laurel Circuit Court a motion pursuant to RCr 11.42 to vacate his judgment of conviction. That motion was filed by the Clerk on October 14, 1997, and on that same date, the Governor signed an executive order that Foley be put to death by electrocution on November 13, 1997. The circuit court refused a stay of execution and scheduled an evidentiary hearing on the RCr 11.42 motion on November 10, 1997, which was three days before the scheduled execution. This Court granted a stay of execution on November 3,1997. Before the evidentiary hearing began on November 10, counsel for Foley renewed his motion for continuance which was denied. The RCr 11.42 motion was denied on November 25, 1997. This appeal followed.

I. Mitigating Evidence

Foley argues that his death sentence must be vacated because his trial attorney did not investigate and present to the jury all available evidence which would mitigate a finding that he deserved the death penalty. He asserts that evidence was available to trial counsel which would have proved relevant mitigation in the penalty phase of the trial, but his attorney did not conduct an adequate investigation of the available mitigating evidence and presented no evidence in mitigation. At his RCr 11.42 hearing, Foley presented twelve witnesses who would have been available to offer similar mitigating evidence at trial. He also claims that trial counsel did not properly explain the mechanics of the penalty phase, including the concept of mitigation so that Foley could make a rational choice and properly assist in his own defense.

At the RCr 11.42 hearing, trial counsel testified that he and Foley had discussed the penalty phase and that Foley did not want to put family witnesses through the ordeal of testifying. There was no testimony that Foley knew of any witnesses who possessed critical mitigating information evidence in the penalty phase.

The witnesses who testified at the RCr 11.42 hearing indicated that Foley was a lovable child and that he idolized his grandfather who was a seven-time murderer. One of the Foley witnesses testified that he was nice even though he carried a gun and had been convicted earlier of manslaughter. His mother testified that her father had killed seven men and had taught Foley to shoot a gun when he was only 6 years old. His mother also discussed some alleged injuries that Foley sustained, the implication being that there was some sort of brain damage. That inference was never substantiated by any medical record. Testimony regarding the injuries has no relevance to mitigation. Her testimony that he could be fine one minute and very angry the next certainly did not mitigate the propensity for violence. At the end of her testimony, she identified two different photographs of Foley with guns. The persuasive mitigation of this testimony is highly questionable.

Foley’s brother testified about his brother’s violent nature and how well he could handle a gun. He admitted on cross-examination that' Foley could be violent, and that people were afraid of Foley.

Trial counsel also testified at the RCr 11.42 hearing. He stated that he had been a practicing attorney in Kentucky for almost 19 years with criminal defense work as a substantial part of his practice. Although this was his first capital case, he said he had handled other violent crimes. He had previously represented Foley and represented him in a quadruple homicide after this case was tried. He stated that Foley was reluctant to put his family through the rigors of testifying in mitigation. Trial counsel said that Foley assisted ■ him in the defense and that they worked very closely together. - He did not remember anything that would make him think that Foley was incompetent during trial because his client was lucid and able to converse with counsel and others. Trial counsel said that he met with post-conviction counsel and was cooperative in regard to the RCr 11.42 motion.

The general standards which measure questions relative to the ineffective assistance of counsel are set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Gall v. Commonwealth, Ky., 702 S.W.2d 37 (1985); Sanborn v. Commonwealth, Ky., 975 S.W.2d 905 (1998). In order to be ineffective, performance of counsel must be deficient and below the objective standard of reasonableness and prejudicial so as to deprive a defendant of a fair trial and a reasonable result. Strickland, supra. “Counsel is constitutionally ineffective only if performance below professional standards caused the defendant to lose what he otherwise would probably have won.” United States v. Morrow, 977 F.2d 222, 229 (6th Cir.1992). The critical issue is not whether counsel made errors but whether counsel was so thoroughly ineffective that defeat was snatched from the hands of probable victory. Morrow, supra. The purpose of RCr 11.42 is to provide a forum for known grievances, not to provide an opportunity to research for grievances. Gilliam v. Commonwealth, Ky., 652 S.W.2d 856, 858 (1983).

In considering an ineffective assistance of counsel claim, the reviewing court must consider the totality of evidence before the judge or jury and assess the overall performance of counsel throughout the case in order to determine whether the identified acts or omissions overcome the presumption that counsel rendered reasonable professional assistance. See Morrow; Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).

A defendant is not guaranteed errorless counsel, or counsel judged ineffective by hindsight, but counsel likely to render and rendering reasonably effective assistance. McQueen v. Commonwealth, Ky., 949 S.W.2d 70 (1997). Strickland notes that a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The right to effective assistance of counsel is recognized because of the effect it has on the -ability of the accused to receive a fair trial. In a death penalty case where the aggravating factors are overwhelming, it is particularly difficult to show prejudice at sentencing due to the alleged failure to present mitigating evidence. Bonin v. Calderon, 59 F.3d 815 at 836 (9th Cir.1995).

’ In a RCr 11.42 proceeding, the movant has the burden to establish convincingly that he' was deprived of some substantial right which would justify the extraordinary relief afforded by the post-conviction proceeding. Dorton v. Commonwealth, Ky., 433 S.W.2d 117, 118 (1968).

The information that the witnesses at the RCr 11.42 hearing may have testified to during the penalty phase of the original trial would have been offset by their testimony regarding the propensity of Foley for violence. The performance of trial counsel was not ineffective because he failed to present testimony of these witnesses in the penalty phase of the original trial.

Trial counsel became familiar with members of the Foley family during the course of this representation and discussed the trial strategy with the defendant. There was no testimony that Foley told the trial attorney that there were witnesses that had critical mitigating evidence. As a result of the discussions with Foley and trial strategy, the trial counsel decided not to call mitigation witnesses. There is no evidence to substantiate the claim that Foley may not have understood mitigation. It is clear that trial counsel understood what issues could be raised in the penalty phase. “Decisions relating to witness selection are normally left to counsel’s judgment and this judgment will not be second-guessed by hindsight.” Fret-well v. Norris, 133 F.3d 621, 627 (8th Cir.1998).

Although we certainly recognize the necessity for complete investigation by defense counsel, we must conclude that a reasonable investigation is not an investigation that the best criminal defense lawyer in the world, blessed not only with unlimited time and resources, but also with the benefit of hindsight would conduct. Thomas v. Gilmore, 144 F.3d 613 (7th Cir.1998). It is only reasonable for any lawyer to place certain reliance on his client. The investigation must be reasonable under all the circumstances. Stevens v. Zant, 968 F.2d 1076 (11th Cir.1992). In this case, there was no proof of any reason for trial counsel to investigate Foley’s background more thoroughly. There was no evidence of any mental defect. Trial counsel knew Foley and his family from previous representations, and their testimony at the RCr 11.42 hearing indicated a violent nature. The decision of counsel not to conduct additional investigation into a defendant’s background in search of mitigating circumstances can be supported by reasonable professional judgment. Cf. Fretwell, supra. Even if he had documented additional mitigating evidence, trial counsel could have decided that the negative testimony that would be elicited might only serve to inflame the jury and therefore decline to present it. As in Fisher v. Angelone, 163 F.3d 835 (4th Cir.1998), it cannot be said that a strategic decision not to call mitigating witnesses was unreasonable. See also Preston v. Delo, 100 F.3d 596, 603 (8th Cir.1996).

In this case, there is no reasonable probability that the omitted testimony would have changed the result reached by the jury or the sentencing fixed by it. Foley was not prejudiced by the alleged failure of trial counsel to investigate and present mitigating evidence. There is no showing of either deficient performance or substantial prejudice which are required to present an ineffectiveness of counsel argument.

II. Competency and Mental Health

It is axiomatic that federal and state law prevent the trial of an incompetent defendant. KRS 504.090; RCr 8.06. If there are reasonable grounds to believe that a defendant is not competent to stand trial, the proceeding must be discontinued and the trial judge must appoint a psychologist or psychiatrist to examine the defendant, file a report and then a hearing must be held. KRS 504.100. Here, at the RCr 11.42 hearing, trial counsel testified that Foley assisted him in his defense and that they worked very closely. The attorney further testified that he did not remember anything that made him think Foley was incompetent during trial and that Foley seemed lucid and was able to converse with him and others. Foley testified in his own defense for over one and one-half hours. The trial judge had the opportunity to observe that Foley was able to communicate effectively his version of the offense and was able to answer questions both on direct and cross-examination.

Foley did not testify at his RCr 11.42 hearing. No medical proof of any mental history was offered to support the claim of incompetency. The only evidence introduced indicating any bizarre behavior were letters supposedly written by Foley to his deceased grandmother shortly before trial. Although family members spoke of various head injuries suffered by Foley during childhood, no medical records were presented to support such testimony. Trial counsel testified at the RCr 11.42 hearing that he saw no signs of mental illness and that he had no problem communicating with Foley before and during the trial, and that Foley maintained his own trial folder and discussed it intelligently with counsel. There was no evidence that Foley was incompetent. The authorities cited by Foley are unpersuasive. Trial counsel was not ineffective for declining to request a competency hearing.

III. Effective Assistance of Counsel

A review and analysis of the argument presented by Foley that he was denied effective assistance of counsel because the circuit court improperly denied an eviden-tiary hearing on certain issues is without merit.

The RCr 11.42 motion contained twenty-six grounds and the circuit court disposed of issues 1 through 17, 19, 20, 22 and 26, determining that a hearing was not required. An evidentiary hearing was held on the remaining issues on November 10, 1997. As has been previously noted, the standard for reviewing ineffective assistance of counsel claims has been discussed and Foley was not denied effective assistance. Here, the record clearly refutes the allegations contained in the RCr 11.42 motion. He was not entitled to an eviden-tiary hearing on all of the allegations. He received a full and fair litigation of his alleged grounds for relief pursuant to Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976).

We have reviewed the other issues and find them to be without merit. In the guilt phase, the change of venue issue was raised on direct appeal and cannot be relitigated in this proceeding. Wilson v. Commonwealth, Ky., 975 S.W.2d 901, 903 (1998). The ballistic expert used by the defense was allowed to testify and was extensively cross-examined at trial. The trial court was correct in finding that there was no ineffective assistance of counsel in this respect. The question of rebuttal evidence was rejected on direct appeal as were the issues regarding the impeachment of Foley, victim evidence and the fact the victim’s father testified while in a wheelchair.

In regard to the impeachment of witnesses for the Commonwealth, Marge Foley was extensively cross-examined by defense counsel. The jury had sufficient evidence to make an informed judgment about the credibility of such witnesses. There was no evidence that the witness, Watt, was a suspect in the other ease involving Foley and her testimony was consistent with that of Foley. Defense counsel cross-examined the witness and pointed out inconsistencies in regard to her prior deposition.

Defense counsel was not ineffective for failing to object to a prior felony conviction from 1977. The indictment gave sufficient notice of aggravators pursuant to Perdue v. Commonwealth, Ky., 916 S.W.2d 148 (1995), and instruction issues were rejected in the direct appeal.

IV. Funds for Experts

Foley argues that the trial court improperly denied him funding for a ballistics expert and a social worker because he needed these two experts for the eviden-tiary hearing to prove the prejudice in his original jury verdict.

Foley has no constitutional right to expert assistance in a collateral attack proceeding. Murray v. Giarratano, 492 U.S. 1,109 S.Ct. 2765,106 L.Ed.2d 1 (1989). The requirement to provide funds to indigent defendants for necessary experts as stated in Binion v. Commonwealth, Ky., 891 S.W.2d 383 (1995) and Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), has not been extended to post-conviction matters. The standard for determining whether a criminal defendant is entitled to funds for expert assistance is whether such assistance is reasonably necessary. Hicks v. Commonwealth, Ky., 670 S.W.2d 837 (1984). Such a decision is within the sound discretion of the trial judge, and the same standard is to be applied in RCr 11.42 proceedings. McQueen, supra.

Foley contends that a ballistics expert was necessary to prove that he did not kill Harry Vaughn and only shot at Rodney Vaughn in self-defense. He does not have an affidavit from any ballistics expert stating this proposition. There is no showing that the one expert he contacted could change the Foley verdict. He also claims that he needs a social worker to explain his background and character to the jury. Again, he does not indicate what a social worker would testify to or how this testimony would change the reliability of the verdict. Foley does not demonstrate that either of these proposed expert witnesses was reasonably necessary pursuant to Hicks, supra. It was not error for the trial judge to deny motions for funds for experts because those experts were not reasonably necessary.

V. Credibility of Witness

Foley claims that newly discovered evidence would show that a prosecution witness lied and that thus his conviction and sentence should be reversed. His new evidence is based on affidavits from another death-row inmate and a convicted felon who both alleged they were in jail with the prosecution witness who confessed to them that he actually shot Lynn Vaughn. The evidence is not new because it only corroborates the trial testimony.

The granting of a new trial is disfavored when the grounds are newly discovered evidence which is merely cumulative or impeaching in nature. See Collins v. Commonwealth, Ky., 951 S.W.2d 569, 576 (1997). At the RCr 11.42 hearing, a witness testified that Dugger confessed to him also. The witness admitted that he had five felony convictions and that four of them had been prosecuted by the current prosecutor of Foley. Newly discovered evidence is not a basis for RCr 11.42 relief. McQueen. There is nothing to suggest that in the absence of this allegedly newly discovered material, the verdict would have been any different. The trial judge did not abuse his discretion in finding that the testimony submitted by affidavits from prison inmates was not credible. See Epperson v. Commonwealth, Ky., 809 S.W.2d 835 (1991).

VI. Rush to Judgment

Foley contends that his RCr 11.42 attorneys needed additional time to prepare and present issues. In this case, Foley had sufficient time to prepare issues for the RCr 11.42 motion. His conviction was affirmed in 1996 and certiorari was denied by the U.S. Supreme Court. Foley did start preparing for his RCr 11.42 hearing by faxing a 15-page motion to the circuit court just three days after certiora-ri was denied. The motion had attached to it the affidavits of two potential RCr 11.42 witnesses which were signed on September 26, 1996 and November 22, 1996, approximately one year before the evidentiary hearing would eventually be scheduled. Foley and his lawyers were well aware of what was coming and had the commendable foresight to begin preparations even before the direct appeal was affirmed.

As previously stated, the purpose of a RCr 11.42 proceeding is to provide a forum for known grievances, not to provide an opportunity to research for grievances. Gilliam, supra. There was no valid reason for the circuit court to grant additional preparation time.

RCr 9.04 provides a standard for postponing a trial or evidentiary hearing. It requires the defendant to demonstrate what witnesses or evidence counsel has been unable to obtain in time for the hearing, the materiality and that due diligence has been exercised to obtain it. Foley did not comply with the requirements of this rule.

Foley was unable to identify with any particularity, any witnesses or evidence of claims that they would have been able to present had they been granted a continuance of the RCr 11.42 hearing. Foley mentions three missing witnesses but of those he only gives the name of one, Ronnie Dugger. He provides no affidavits to indicate what he believes Dugger’s testimony would be. He merely claims that Dugger lied during trial, and yet he presented the testimony of two witnesses at the RCr 11.42 hearing that Dugger had lied. He claims in a vague general way that he learned of useful information that could have been presented by other witnesses, but no mention of these individuals is made and what they would have specifically testified about.

In addition, there is no indication as to what a ballistics expert and a social worker would have testified or why their testimony was material. Again, no affidavits of any nature were filed. Thus, there was no need to grant a continuance based on either of these suggested sources of testimony. Neither of these witnesses would have been reasonably necessary and the trial court was correct in not granting funds. Foley’s complaint about discovery issues is without merit because pretrial discovery rules do not apply in RCr 11.42 proceedings. Sanborn v. Commonwealth, Ky., 975 S.W.2d 905 (1998).

In regard to the missing evidence of medical records, there is no showing as to what those records would say or if he was ever taken to a doctor and if there were any medical records in existence. He did not comply with RCr 9.04 and was not entitled to a postponement of the hearing.

Foley contends that an RCr 11.42 proceeding requires a “virtual reinvestigation.” We disagree. This proceeding is not a retrial. He had ample time in which to prepare for the hearing and there is no legitimate RCr 11.42 claim which would justify the extraordinary relief available in an RCr 11.42 proceeding. There was no abuse of discretion or error of any kind in not granting a continuance.

VII. ■ Prosecutorial Misconduct

Foley complains that he was denied due process of law, a fair trial and a reliable sentence because the prosecutor withheld favorable evidence, coached witnesses and tossed a gun into the jury box. All aspects of this issue were raised in his motion for a new trial as well as the RCr 11.42 motion.

Our review of the record does not indicate that the prosecutor withheld evidence. This issue has already been addressed on direct appeal and was raised by Foley in a motion for a new trial that was rejected by the trial judge. We find no reason to relitigate this subject. See Foley v. Commonwealth, 942 S.W.2d at 886. Foley claims that the prosecutor withheld evidence that Ronnie Dugger was not intimidated because the prosecutor knew that Dugger called his mother and said he was okay. In order to support a motion for a new trial, any newly discovered evidence must be of such a decisive nature that it would, with reasonable certainty, change the verdict. Collins v. Commonwealth, Ky., 951 S.W.2d 569, 576 (1997); Coots v. Commonwealth, Ky., 418 S.W.2d 752, 754 (1967). The granting of a new trial is not favored when the grounds are newly discovered evidence which is merely cumulative or impeaching in nature.

Reliance by Foley on Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), is misplaced. Those federal cases held that a new trial is not automatically required whenever a combing of the prosecutor’s files after trial has disclosed evidence possibly useful to the defense, but not likely to have changed the verdict. Next, Foley asserts that the prosecutor met with prosecution witnesses prior to trial, provided them with portions of the discovery and instructed them on their testimony. This ground was also included in his motion for a new trial. We agree with the trial judge that this claim has been waived because post-conviction counsel has not introduced any evidence to substantiate this allegation at the eviden-tiary hearing. There was no abuse of discretion in refusing a request for reconsideration or for a supplemental hearing because of an alleged automobile accident involving the witness. Finally, the suggestion that the prosecutor threw a gun in the court room is without merit and has been refuted by an examination of the video tape of the trial. There was no basis for avowal testimony from the person who has testified that he was a personal friend of Foley and would do anything to help him. There was no credible evidence to support this claim and it was refuted by the video tape of the trial. The trial judge properly overruled the issue before the RCr 11.42 hearing and avowal testimony was not proper at the hearing. Cf. McQueen.

VUI. Juror Misconduct

Foley argues there was misconduct on the part of three jurors during his original trial. To support these allegations he presented evidence from four witnesses, his trial attorney, one of the jurors and two other persons. All three of the jurors unequivocally denied making the statements attributed to them by Foley.

The trial attorney testified that he was aware of a claim that a juror had told others at a restaurant that the jury had already decided guilt. The trial lawyer sent an associate to the restaurant to investigate the claim but the associate was not able to verify the allegation.

The witnesses called by Foley to support his contention could not name a single individual who supposedly heard such statements or passed information on to them. Foley offered no proof as to the assertions regarding the kinship of jurors to an assistant Commonwealth Attorney and the Commonwealth offered proof that there was no such kinship. The assistant Commonwealth Attorney did not participate in the trial. The claims of juror misconduct are based on suspicion, rumor and speculation. There is no credible evidence to support such allegations. The authorities cited by Foley are unconvincing and without merit.

IX. Discovery Denial

Foley contends that he was denied discovery during the RCr 11.42 post-conviction proceedings. He asserts that the proceedings must have the same scope as a pretrial investigation. We disagree. The RCr 11.42 proceeding is limited in purpose and scope. This Court has stated that such proceedings are not the equivalent of a retrial. Dorton v. Commonwealth, Ky., 433 S.W.2d 117 (1968). Sanborn, supra, has indicated that pretrial rules of discovery do not apply in RCr 11.42 proceedings.

Foley has already received complete discovery and has been convicted. He is no longer simply an accused. He is not permitted to fish through official records in hopes that something may turn up to his benefit. See Gilliam, supra.

X. Letter from Wife

An examination of the record does not indicate any testimony that the trial attorney was made aware of an alleged letter from Foley’s wife to the defendant prior to trial. The letter indicated that she became pregnant by a state police officer and that another police officer had given her money. Obviously, defense counsel did not cross-examine her about the letter or about her relationships with either of the two police officers. Foley does not state when he received the letter, nor does he indicate when trial counsel became aware of the letter diming trial. Foley, who testified in his own defense, made no mention of the facts that he now argues. Trial counsel cross-examined Foley’s wife concerning pending criminal charges against her and the fact that she had unresolved custody litigation. At, trial, Foley testified that his wife was “a dope-head and a whore.”

The trial judge correctly found that Foley did not assert that he made trial counsel aware of the purported letter or that he asked trial counsel to question his wife about the alleged letter. Foley did not testify at the RCr 11.42 hearing.

In attempting to obtain post-conviction relief, the movant must present facts with sufficient particularity to generate a basis for relief. RCr 11.42(2); Skaggs v. Commonwealth, Ky., 803 S.W.2d 573 (1990); Lucas v. Commonwealth, Ky., 465 S.W.2d 267 (1971).

XI. Denial of Mitigating Evidence

Foley complains that he was not allowed to present relevant mitigating evidence during the testimony of four witnesses at the RCr 11.42 hearing. Foley argues that the evidence was highly relevant to the issue of his character both as a child in school and as a grown adult. All of the evidence he wanted to present was placed in the record by avowal. An examination of it indicates that it is clearly unreliable, inadmissible hearsay. KRE 802. None of the information would have been admissible at trial even through the hearsay exception route. KRE 803 and 804. Thus, it was not ineffective assistance of counsel for the defense lawyer not to have produced it at trial.

The hearsay testimony offered here meets none of the criteria of reliability noted by the United States Supreme Court in Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979). In any event all the testimony was recorded by avowal and we conclude that the trial court did not commit any error in excluding it.

We conclude that Foley did not receive ineffective assistance of counsel pursuant to RCr 11.42. He has not demonstrated a professional performance that was so deficient that it prejudiced the defense. There is no showing that the alleged errors of defense counsel were so serious that the result of the trial was unreliable. See Strickland; Gall; McQueen; San-born.

The decision of the circuit court is affirmed in all respects.

All concur.


author: GRAVES, Justice.

text:
    MAXIMUM MACHINE CO., INC.; Kathy Curtsinger, (d/b/a The CLIP Joint); Kentucky Tank, Inc.; Bullitt County Feeders Supply Co., Inc.; Dr. BC Moser, (d/b/a Moser Chiropractic Office); Charlie Wright, (d/b/a Wright Electronics); Bullitt County Transmission, Appellants, v. CITY OF SHEPHERDSVILLE, Kentucky, Appellee.
    No. 99-SC-0040-DG.
    Supreme Court of Kentucky.
    March 23, 2000.
    Rehearing Denied June 15, 2000.

      Mark E. Edison, Shepherdsville, Counsel for City of Shepherdsville.
    John E. Spainhour, Jr., Givhan & Spainhour, Shepherdsville, Counsel for Appellants.
   GRAVES, Justice.

Appellants are seven plaintiffs who filed actions in the Bullitt District Court to recover refunds of a business license tax paid to the City of Sheperdsville pursuant to an occupational license fee ordinance (# 990-212) enacted in 1990. The ordinance imposed a license fee on businesses due on July 1st of each year beginning in 1990. Following the enactment of the ordinance, several businesses challenged its legality. In 1995, the Kentucky Court of Appeals affirmed a judgment of the Bullitt Circuit Court declaring the ordinance void due to procedural infirmities. Appellants thereafter brought this action in the district court for a refund of taxes paid in 1990,1991,1992, and 1993.

Both the Bullitt District Court and the Bullitt Circuit Court ruled a five-year statute of limitations was applicable to Appellants’ claims for a refund. The lower courts agreed that the claims fell within the scope of either KRS 413.120(5) (an action for withholding personal property), or KRS 413.120(7) (an action for injury to the rights not arising on contract and not otherwise enumerated). On appeal, however, the Court of Appeals disagreed, and held that the claims were governed by the two-year statute of limitations set forth in KRS 134.590(3). This Court accepted discretionary review and, for the reasons set forth herein, reverses the decision of the Court of Appeals.

The sole issue concerns which statute of limitations governs Appellants’ claims for a refund from the City of Sheperdsville. The Court of Appeals applied KRS 134.590(3), Refund of ad valorem taxes or taxes held unconstitutional, which provides:

(3) When it has been determined that city, urban-county, county, school district, or special district ad valorem taxes have been paid to a city, urban-county, county, school district, or special district when no taxes were due or the amount paid was in excess of the amount finally determined to be due, the taxes shall be refunded to the person who paid the tax.

While acknowledging that the drafters of KRS 134.590 did not use artful language, the Court of Appeals concluded that a tax paid to a municipality pursuant to an improper ordinance implicitly falls within the ambit of the statute. The panel, citing Griggs v. Dolan, Ky., 759 S.W.2d 593 (1988), infei’red legislative intent to include occupational taxes within the scope of KRS 134.590(3) based, in part, on the fact that no other curative legislation exists. We disagree.

Ordinance 990-212 implemented an occupational license tax, not an ad valorem tax. The Kentucky Constitution expressly authorizes a business license tax which is recognized as a tax separate and distinct from an ad valorem tax. Ky. Const. § 181. Furthermore, the tax was not declared unconstitutional, rather it was voided because the ordinance implementing it was not properly enacted. Clearly, as the circuit and district courts found, the provisions of KRS 134.590 are expressly limited to refunds for ad valorem taxes or unconstitutional taxes, and are not applicable to the occupational tax enacted by the City of Sheperdsville.

Neither party has cited, nor do we find, any statutory provision or ordinance governing claims for a refund of the occupational tax. Consequently, Appellants’ claims for a refund must be based in common law. Inland Container Corp. v. Mason County Board of Education, et al., Ky., 6 S.W.3d 374 (1999); see also Martin Marietta Aluminum, Inc. v. Hancock County Board of Education, 806 F.2d 678 (6th Cir.1986).

In Great Atlantic and Pacific Tea Company v. City of Lexington, 256 Ky. 595, 76 S.W.2d 894, 895 (1934), our predecessor court stated:

Money paid without consideration and which in law, honor, or good conscience was not payable ought in law, honor, and good conscience to be recoverable, and that rule applicable to transactions between individuals should be generally made applicable to municipalities and other governments. Only very compelling reasons of public policy relieve the state and its subdivisions from being required to live up to the same moral standards demanded of individuals and to repay taxes collected without authority of a valid law.

Pursuant to Martin Marietta, supra, the common law authorizes a tax refund when: (1) the taxing statute or regulation is invalid and the tax payments were submitted involuntarily, or (2) the taxing authority has engaged in misrepresentation. Id. at 683. See also City of Louisville v. Louisville Taxicab & Transfer Co., 238 S.W.2d 121 (1951).

Ordinance 990-212 authorizing the business license tax in this case was declared invalid on procedural grounds. As such, the necessary determination is whether Appellants involuntarily paid the tax from 1990-1993. In Louisville Taxicab, supra, the Court concluded that a city ordinance authorizing the imposition of a fine for failure to pay -the license fee compelled the plaintiff to pay the fee, and thus a refund was proper. “[I]n every case where enforcement may be had in a summary proceeding or a burdensome penalty may be exacted for failure to pay, the law will presume payment to have been made involuntarily and will permit recovery.” Id. at 124. See also Coleman v. Consolidated Realty Co., 239 Ky. 788, 40 S.W.2d 387 (1931).

Ordinance 990-212 required an annual license for the privilege of engaging in any trade, occupation, business or profession within the City of Sheperdsville, and provided that “[t]he license fee herein levied shall be deemed delinquent if not paid thirty (30) days after same becomes due, and a penalty of 20% of the amount of the fee shall be added thereto.” Moreover, Section VI stated:

It shall be unlawful for any person to engage in a trade, occupation, or profession within the city without reporting and paying the license fees herein provided and required. Any person, firm or corporation violating any provisions of this ordinance shall be fined not less than Fifty Dollars ($50.00) for each offense. A separate offense shall be deemed committed on each day dining or on which a violation occurs or continues.

Clearly, Ordinance 990-212 imposed mandatory sanctions for failure to timely pay the annual license fee. Thus, we conclude that Appellants paid the tax involuntarily. Inland Container Corp., supra; see also Revenue Cabinet v. Gossum, Ky., 887 S.W.2d 329 (1994) (taxpayer is coerced into paying tax when financial sanctions are imposed for nonpayment); McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, 496 U.S. 18, 110 S.Ct. 2238, 110 L.Ed.2d 17 (1990) (“when a tax is paid to avoid financial sanctions ... the tax is paid under ‘duress’ ”) Accordingly, recovery of a refund under common law principles is permitted because the ordinance was invalid and Appellants paid the tax involuntarily to avoid mandatory sanctions. Inland Container, supra.

We agree with the Bullitt Circuit Court that Appellants’ claims may properly be characterized as claims for recovery of damages for wrongfully withholding personal property under KRS 413.120(5), or actions for injuries to the rights of Appellants not arising under contract and not otherwise enumerated under KRS 413.120(7). As such, Appellants’ refund claims are governed by the five-year statute of limitations set forth in KRS 413.120.

The decision of the Court of Appeals is reversed and the matter is remanded to the Bullitt Circuit Court for further proceedings in accordance with this opinion.

All concur.