Coogle v. Commonwealth

CHESTER KEITH COOGLE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

2017-SC-000554-MR

Supreme Court of Kentucky

FEBRUARY 14, 2019

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.

NOT TO BE PUBLISHED

ON APPEAL FROM HARDIN CIRCUIT COURT

HONORABLE KELLY M. EASTON, JUDGE

NO. 17-CR-00246

MEMORANDUM OPINION OF THE COURT

AFFIRMING

A Hardin Circuit jury convicted Chester Keith Coogle of third-degree assault, first-degree fleeing or evading, first-degree possession of a controlled substance, and use or possession of drug paraphernalia. The jury also found Coogle guilty of being a persistent felony offender ("PFO") in the second degree. The jury recommended an enhanced sentence of ten years on third-degree assault and first-degree fleeing or evading, along with sentences of three years on possession of a controlled substance and twelve months on possession or use of drug paraphernalia. The court ordered both ten-year sentences to run consecutively for a total sentence of twenty years to serve. Coogle was sentenced accordingly and he now appeals his conviction as a matter of right.

I. BACKGROUND

Sergeant Taylor Miller, with the Hardin County Sheriff's Office, was on patrol the evening of March 21, 2017 in a rural area of Hardin County near a small cemetery. Sgt. Miller saw two vehicles pull onto the road leading into the cemetery; they pulled up to the top of the road, in a small loop that leads back around so vehicles can leave on the same road leading into the cemetery. The vehicles then turned their headlights off. The cemetery was not lit and was fairly secluded and quiet. Sgt. Miller pulled into the same road and, before reaching the loop, stopped and turned on his emergency lights. Sgt. Miller noticed that one of the vehicles was fairly beaten up with a broken windshield. One of the drivers made a motion with his hand out the window to wave Sgt. Miller out of the way. Sgt. Miller did not move, however. The driver then floored his vehicle and drove around Sgt. Miller, back onto the main road, going up onto the grassy area to get around Sgt. Miller's vehicle. Sgt. Miller initiated a pursuit of the vehicle that had fled; he saw the driver as he passed and identified him later as the defendant, Coogle. Sgt. Miller activated his lights and sirens as he pursued Coogle's vehicle.

Coogle led Sgt. Miller down a path of country roads. The speed limit was 35 to 45 miles per hour; the road was sometimes curvy. Sgt. Miller estimated Coogle to be driving at 55 to 70 miles per hour during the pursuit. Coogle turned off the road into a property with a barn. Sgt. Miller knew there was no exit in the back of the property, so he stayed in front of the barn on the roadway as Coogle drove around from behind the barn. Sgt. Miller stated therewas a security light near the barn, so the area was more well-lit than the other areas during the pursuit. Sgt. Miller turned his vehicle around and watched as Coogle reemerged from behind the barn.

Coogle paused for a moment in the driveway. Sgt. Miller got out of his vehicle, drew his weapon, and yelled at Coogle to stop while making stopping gestures with his hand. Coogle paused and then turned his car towards Sgt. Miller and slammed on the gas, revving straight towards Sgt. Miller. Sgt. Miller ran for cover behind his vehicle; Coogle drove by closely. Sgt. Miller testified Coogle was close enough to his vehicle that he would not have been able to fit between the two vehicles. Coogle drove off down the road. Sgt. Miller discharged his gun at the retreating vehicle, worried that Coogle would turn around and attempt to drive over him again. After getting back into his vehicle, Sgt. Miller attempted to relocate Coogle but did not see his vehicle again at that time.

Eventually, officers, including Sgt. Miller, found the vehicle further away where Coogle had crashed into a tree on the side of the road. Officers searched the vehicle and found a couple of glass pipes, one of which had residue later identified as methamphetamine, a cut straw, and other small baggies. There was also a bullet hole in the trunk of the vehicle and the bullet was found inside the trunk of the car, identified as the bullet discharged by Sgt. Miller. Sgt. Miller also later discovered that Coogle had an active warrant for his arrest at the time of this incident and the ensuing pursuit, presumably leading to his flight after Sgt. Miller first approached his vehicle.

II. ANALYSIS

A. Double Jeopardy

Coogle was indicted on several charges. The jury was presented with instructions on the following crimes: (1) attempted murder with lesser included offenses of: attempted first-degree assault; third-degree assault; first-degree wanton endangerment; and second-degree wanton endangerment; (2) first-degree fleeing or evading with a lesser included offense of second-degree fleeing or evading; (3) first-degree possession of a controlled substance; and (4) use or possession of drug paraphernalia. Based on the instructions, the jury found Coogle guilty of: (1) third-degree assault; (2) first-degree fleeing or evading; (3) first-degree possession of a controlled substance; and (4) use or possession of drug paraphernalia. Coogle now alleges that, by instructing the jury on both third-degree assault and first-degree fleeing or evading, the trial court violated the constitutional proscription against double jeopardy.

Under Kentucky Revised Statute (KRS) 508.025:

(1) A person is guilty of assault in the third degree when the actor:

a) Recklessly, with a deadly weapon or dangerous instrument, or intentionally causes or attempts to cause physical injury to:

1. A state, county, city, or federal peace officer; ...

The jury instruction on third-degree assault allowed the jury to find guilt on that charge if:

A. That on [sic] this county on or about March 21, 2017, and before the finding of the Indictment herein, he attempted to cause physical injury to Sergeant Taylor Miller by driving his motor vehicle at him;

AND

B. That Sergeant Taylor Miller was a police officer acting in his course of his official duties and the Defendant knew that he was acting in the course of said official duties.

KRS 520.095 states that:

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

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

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

The instruction to the jury stated that Coogle could be found guilty of fleeing or evading, first degree, if the jury determined beyond a reasonable doubt:

A. That in this county on or about March 21, 2017, and before the finding of the Indictment herein, he operated a motor vehicle with the intent to flee or elude;

AND

B. That he knowingly or wantonly disobeyed a direction to stop his motor vehicle, which direction was given by a person whom he recognized to be a police officer;

AND

C. That his act of fleeing or eluding caused or created a substantial risk of serious physical injury or death to any person or serious injury to property.

Coogle argues that his constitutional right¹ to be free of double jeopardy was violated because the convictions required two conflicting states of mind. Coogle concedes this issue is unpreserved and requests palpable error review under Rule of Criminal Procedure (RCr) 10.26. "To establish palpable error, [Coogle] must show 'the probability of a different result or error so fundamentalas to threaten his entitlement to due process of law." Huddleston v. Commonwealth, 542 S.W.3d 237, 245 (Ky. 2018) (quoting Brooks v. Commonwealth, 217 S.W.3d 219, 225 (Ky. 2007) (citation omitted)). Appellate reviews focus "on whether 'the defect is so manifest, fundamental and unambiguous that it threatens the integrity of the judicial process.'" Huddleston, 542 S.W.3d at 245 (quoting Martin v. Commonwealth, 207 S.W.3d 1, 5 (Ky. 2006)).

Inconsistent Findings of Fact

Coogle alleges that his convictions for both third-degree assault and first-degree fleeing or evading violate the double jeopardy ban codified in KRS 505.020(1)(b). The statute states that a defendant cannot be convicted of two offenses if "[i]nconsistent findings of fact are required to establish the commission of the offenses[.]" The gist of Coogle's argument is that, under the instructions, the jury could have convicted Coogle of first-degree fleeing or evading under the theory that he "wantonly" created a risk of injury while also convicting him of third-degree assault under the theory that he "intentionally" attempted to injure Sgt. Miller. Coogle argues that finding he acted both wantonly and intentionally violates KRS 505.020(1)(b).

In Spicer v. Commonwealth, we determined that the defendant's convictions for both attempted murder and first-degree assault violated this statutory, and constitutional, restraint. 442 S.W.3d 26, 30-31 (Ky. 2014). "[T]o convict a defendant of attempted murder, the jury must find that [the defendant] specifically intended during the attack to kill the victim. ... On theother hand, and quite inconsistently, for the jury...