Now this could make for an interesting challenge. Brian Pollard was arrested for DUI in an accident that led to the death of Peggy Williamson. He received only four days in jail after pleading guilty. When the family cried foul, District Judge Rebecca Phelps and prosecutors insisted that they had no idea someone died. They are now moving to charge him again — after he was sentenced on the crime for DUI.
There are obviously double jeopardy implications, though courts have gradually reduced this protection in allowing prosecutors to bring different technical charges for the same underlying conduct. This would, however, seem a classic double jeopardy situation where public pressure leads prosecutors to seek more punishment for a crime.
The Kentucky State Police reportedly indicated that they are going to charge Brian Pollard with involuntary manslaughter.
Source; WKYT
Thank you….
I agree that I would press the court in a series of pretrial motion practices. I, believe, like you, that a Motion to Dismiss on Double Jeopardy is well founded but will be difficult to succeed at the trial court level. This is one of the rare exceptions where you an appeal an adverse DJ ruling pretrial to an appellate court in KY.
We have another statute that would be the basis for another motion: KRS 505.030 and 505.040 re: the effects of a former prosecution for a different offense or for the same offense.
There are clearly avenues to challenge other than DJ.
Then Sir,
My Options if representing the gentleman would be to ask for a change of Venue and make one hell of a record… Even as you noted…it is receiving a lot of pre-trial publicity….and the Prosecutor has to make good….
Frank,
Google is a wonderful creature….Makes my research easier…I don’t have to live in the library anymore…I swear I’d never got out of college if this creature had been around then…
I read the entire KRS regarding murder that is why I chose the lesser of the two….Yes, it is true he was drunk…BUT it is also true he has been sentenced and any prosecution that mention the alcohol offense would be strenuously opposed by me….I would object every time the matter was brought up…Just imagine the Energizer Bunny Beating his Drum….I would make one hell of a record…even if for appeal…I see the difference in these two case…But at present I defer to your experience and expertise..
FYI, When I was practicing I was well paid attorney known to be brought in to represent as co-counsel where hard assed judges ruled the roost with heavy gavels….
I think a felony charge of Manslaughter II ” Wanton” or Murder (2) “Wanton” could survive a DJ challenge as separate and distinct from the DWI elements. This is a very conservative KY county that is receiving a lot of press attention to this case.
Here is the entire Murder Statute KRS 507.020 (a) and (b):
§ 507.020. Murder.
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Archive
Kentucky Statutes
Title 50. KENTUCKY PENAL CODE
Chapter 507. CRIMINAL HOMICIDE
Current through Chapter 106, Regular Session 2011
§ 507.020. Murder
(1) A person is guilty of murder when:
(a) With intent to cause the death of another person, he causes the death of such person or of a third person; except that in any prosecution a person shall not be guilty under this subsection if he acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be. However, nothing contained in this section shall constitute a defense to a prosecution for or preclude a conviction of manslaughter in the first degree or any other crime; or
(b) Including, but not limited to, the operation of a motor vehicle 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.
(2) Murder is a capital offense.
History. Effective: July 13, 1984
Amended 1984 Ky. Acts ch. 165, §26 , effective July 13, 1984. — Amended 1976 (1st Extra. Sess.) Ky. Acts ch. 15, sec. 1, effective December 22, 1976. –Amended 1976 Ky. Acts ch. 183, §1 . — Created 1974 Ky. Acts ch. 406, §61 , effective January 1, 1975.
Frank,
Since in this case is distinguishable because the party has already been arraigned…, pled guilty and sentenced….in the case cited he was convicted at trial on both counts which were the aggravating factors to charge the greater charge….this is just my two cents worth…
Frank,
I do not disagree with your statement….It is clearly within the context of a motor vehicle and I think a motion to suppress should and would be granted based upon the facts of the case before us….
This is what you have cited:
507.020 Murder.
(1) A person is guilty of murder when:
(a) With intent to cause the death of another person, he causes the death of such person or of a third person; except that in any prosecution a person shall not be guilty under this subsection if he acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be. However, nothing contained in this section shall constitute a defense to a prosecution for or preclude a conviction of manslaughter in the first degree or any other crime;
Isn’t this the more appropriate one?
507.040 Manslaughter in the second degree.
(1) A person is guilty of manslaughter in the second degree when he wantonly causes the death of another person, including, but not limited to, situations where the death results from the person’s:
(a) Operation of a motor vehicle; or
(b) Leaving a child under the age of eight (8) years in a motor vehicle under circumstances which manifest an extreme indifference to human life and which create a grave risk of death to the child, thereby causing the death of the child.
(2) Manslaughter in the second degree is a Class C felony.
Isn’t Vehicular manslaughter is a charge brought against any person who drives a vehicle and unintentionally, but unlawfully, kills another human being. …..
Vehicular manslaughter is the crime of causing the death of a human being due to illegal driving of an automobile, including gross negligence, drunk driving, reckless driving or speeding.
Vehicular manslaughter can be charged as a misdemeanor (minor crime with a maximum punishment of a year in county jail or only a fine) or a felony punishable by a term in state prison, depending on the circumstances. Gross negligence or driving a few miles over the speed limit might be charged as misdemeanor vehicular manslaughter, but drunk driving resulting in a fatality is most likely treated as felony vehicular manslaughter.
I am not pretending to be licensed to practice in KY…but, this seems fairly cut and dry for the defense…. I tell you, I would not want to be in the APA shoes…
Keller v. Commonwealth, 719 S.W.2d 5 (Ky.App. 1986)
719 S.W.2d 5 (Ky.App. 1986)
Paul J. KELLER, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
No. 86-CA-350-MR
Court of Appeals of Kentucky
October 10, 1986
R. Barry Wehrman, Covington, for appellant.
David L. Armstrong, Atty. Gen., Paul W. Richwalsky, Jr., Asst. Atty. Gen., Frankfort, for appellee.
Before COMBS, McDONALD and WILHOIT, JJ.
McDONALD, Judge:
On February 21, 1985, the appellant, Paul J. Keller, caused the death of another when he drove his vehicle head-on into the car operated by the victim. Keller was intoxicated at the time. On May 24, 1985, an indictment was issued by the Kenton County Grand Jury which charged Keller with wanton murder in violation of KRS 507.020. On October 4, 1985, before Keller’s trial, the Grand Jury added another count to the indictment charging Keller with the offense of operating a vehicle while under the influence of intoxicants, second offense. [1] At his arraignment on Count II, Keller was prepared to plead guilty to driving under the influence; however, his attorney asked for a fifteen-minute recess to be allowed to check the clerk’s records before allowing his client to enter a plea of guilty to a second offense. The court advised Keller and his attorney thusly:
[E]nter a plea of not guilty. That will give you time to look into the factual allegations of Count 2 and confer with your client, and if you decide to withdraw the not guilty plea at a later time, you can come before the Court. At that time I can hear any arguments.
When asked by counsel to repeat its advice, the court responded, “Sure. You can always withdraw the not guilty plea.” Subsequently, on October 24, Keller moved for leave to withdraw his not guilty plea to Count II of the indictment and to enter a plea of guilty. The motion was strenuously
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Page 6
opposed by the Commonwealth and the motion was denied. Keller was tried by a jury on both counts in November, 1985, and was found guilty of second-degree manslaughter and sentenced to serve five years in the penitentiary. He was also found guilty on the DUI charge and was fined $350 and given seven days to serve in the county jail.
In his appeal Keller contends first that the judge erred in refusing to accept his plea of guilty to the drunk driving charge. Keller further argues that this act greatly prejudiced him as it denied him the potential defense of double jeopardy and it allowed the jury to know of his previous conviction for drunk driving. It is Keller’s position that the DUI charge was a lesser included offense of the wanton murder charge and that, had his guilty plea been accepted by the court, the Commonwealth would have been precluded from prosecuting him on the murder charge resulting from his actions on February 21, 1985. The court, he believes, became an “advocate” for the Commonwealth in so refusing to accept his plea. He would thus have us vacate his conviction under Count I of the indictment.
The appellant’s arguments are easily disposed of by the recent case of Jordan v. Commonwealth, Ky., 703 S.W.2d 870 (1986), which considers the double jeopardy issue in light of Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984). These cases clearly provide that even if the crime of drunk driving contained in KRS 189A.010 is a lesser included offense to murder, as set forth in KRS 507.020, and had the trial court accepted Keller’s guilty plea to that offense, the Commonwealth would not have been barred by the double jeopardy clause to prosecute Keller on the greater offense of murder contained in Count I of the indictment. The following reasoning in Ohio v. Johnson, 104 S.Ct. at 2542, is applicable to the instant case:
Previously we have recognized that the Double Jeopardy Clause prohibits prosecution of a defendant for a greater offense when he has already been tried and acquitted or convicted on the lesser included offense. See Brown v. Ohio, supra. [Citing Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977).] In Brown the State first charged the defendant with “joyriding,” that is, operating an auto without the owner’s consent. The defendant pleaded guilty to this charge and was sentenced. Subsequently, the State indicted the defendant for auto theft and joyriding, charges which this Court held were barred by the Double Jeopardy Clause, since the defendant had previously been convicted in a separate proceeding of joyriding, which was a lesser included offense of auto theft. Brown v. Ohio, supra, 432 US, at 169, 53 L Ed 2d 187, 97 S.Ct. 2221 [at 2227].
We do not believe, however, that the principles of finality and prevention of prosecutorial overreaching applied in Brown reach this case. No interest of respondent protected by the Double Jeopardy Clause is implicated by continuing prosecution on the remaining charges brought in the indictment. Here respondent offered only to resolve part of the charges against him, while the State objected to disposing of any of the counts against respondent without a trial. Respondent has not been exposed to conviction on the charges to which he pleaded not guilty, nor has the State had the opportunity to marshal its evidence and resources more than once or to hone its presentation of its case through a trial. The acceptance of a guilty plea to lesser included offenses while charges on the greater offenses remain pending, moreover, has none of the implications of an “implied acquittal” which results from a verdict convicting a defendant on lesser included offenses rendered by a jury charged to consider both greater and lesser included offenses. [Citations omitted.] There simply has been none of the governmental overreaching that double jeopardy is supposed to prevent. On the other hand, ending prosecution now would deny the state its right to one full
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Page 7
and fair opportunity to convict those who have violated its laws.
* * *
… Here respondent’s efforts were directed to separate disposition of counts in the same indictment where no more than one trial of the offenses charged was ever contemplated. Notwithstanding the trial court’s acceptance of respondent’s guilty pleas, respondent should not be entitled to use the Double Jeopardy Clause as a sword to prevent the state from completing its prosecution on the remaining charges. [Emphases added.]
From the above holding our U.S. Supreme Court has made it clear that one cannot evoke the protections of the Double Jeopardy Clause to ward off prosecution and the concomitant potential for a greater punishment by pleading guilty to a lesser included offense to charges pending against him. Because appellant did not request separate trials, we cannot speculate as to what effect a denial of such motion might have had under the circumstances.
Although a defendant may be tried on multiple offenses, he cannot receive multiple penalties for the same offense. Thus, as Keller was convicted of both manslaughter and drunk driving, it is necessary for us to examine the elements of those offenses to determine whether this punishment was impermissibly enhanced.
KRS 189A.010 provides as follows: “(1) No person shall operate a motor vehicle anywhere in this state while under the influence of alcohol.” Obviously, all the state must prove under an indictment under this statute is that (1) the defendant was intoxicated and (2) operating a vehicle. See Commonwealth v. Barnhill, Ky.App., 552 S.W.2d 241 (1977). Manslaughter in the second degree, on the other hand, as set out in KRS 507.040(1), requires the state to show that the defendant “wantonly causes the death of another person.”
While we agree that driving under the influence of intoxicants would almost always be wanton, as we interpret KRS 507.040(1) the state need not prove the element of intoxication needed to support the DUI charge. Thus, the crimes are separate and distinct. Commonwealth v. Barnhill, supra; Kruse v. Commonwealth, Ky., 704 S.W.2d 192 (1985). Keller insists that if he had not been intoxicated on the night of the fatal accident, the state would never had considered charging him with murder. We disagree. Had a sober person operated his vehicle as did Keller, that is, at a dangerously high rate of speed in the wrong lane of traffic, such conduct would support an indictment and conviction for wanton murder or manslaughter.
Although our holding makes it unnecessary to address the issue of whether the court erred in refusing Keller’s motion to amend his plea on the second count of the indictment, we will nevertheless speak to this issue. RCr 8.08 specifically provides that “[t]he court may refuse to accept a plea of guilty.” While it may be rare that a court would force the Commonwealth and the defendant to proceed to trial when the defendant voluntarily wishes to plead guilty and accept the maximum sentence or penalty, we know of no requirement, constitutional or otherwise, that the court accept such a plea. Certainly where, as here, the Commonwealth articulates an objection to the plea and a reason why a trial should be had, failure to accept the plea does not constitute reversible error.
The judgment of the Kenton Circuit Court is affirmed.
All concur.
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Notes:
[1] Keller’s previous drunk driving conviction occurred in November, 1983.
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We have 4 homicide statutes: Murder, Manslaughter I, Manslaughter II and Reckless Homicide. But, our Murder statute KRS 507.020 (1) (b) specifically addresses operation of a motor vehicle as a capital offense. Any prosecutor can get a Grand Jury to return a True Bill on any of the offenses. Our state is very conservative in applying the Double Jeopardy bar. I think an indictment would survive the defense motion challenge to a homicide charge. Keller v. Commonwealth (Ky. App. 1986) 719 S.W. 2d 5. So long as the government alleges different elements in the homicide charge.
Well Frank since you are from Kentucky…What is the likely outcome? Can they charge him with Agg VMS since he has been sentenced on the underlying aggravating circumstances? I realize each state has its own due process and nuisances…
Home > Post > Post 12 > Post 12 News Release > News Release
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Post 12, Frankfort
(502) 227-2221
Click here to e-mail TFC Ronald TurleyFatal DUI Collision on I-64 in Scott County
Date of News Release: 06/06/2011
(Post 12 Frankfort) — The vehicle operated by Mr. Brian Pollard was traveling west on I-64 near the 70mm when the vehicle left the right shoulder and struck a rock cut, the vehicle appeared to have rolled several times. The crash trapped the passenger Mrs. Peggy Williamson, the driver was able to exit the vehicle. Mrs. Williamson was extricated by Lexington Fire-EMS and transported to the University of Kentucky Hospital where she later died as a result of her injuries at 11:30 p.m. Mr. Pollard was later charged with DUI, No Insurance and Failure to notify address change to the Department of Transportation. Mr. Pollard was released from the hospital and lodged in the Scott County Detention Center. The investigation is ongoing and other charges may be filed.
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Driver in fatal wreck gets 4 days in jail
The Associated Press
Posted: 7:57pm on Jul 29, 2011; Modified: 8:02pm on Jul 29, 2011
Related Links
Linkhttp://www.georgetownnews.com
GEORGETOWN, Ky. — A Louisville man who pleaded guilty to driving under the influence following a wreck in which his passenger died has been sentenced to four days in jail, and the judge and prosecutor say they weren’t aware of the death.
Scott County District Judge Rebecca Phelps sentenced 38-year-old Brian Pollard on Thursday, the Georgetown News-Graphic reported. Phelps also suspended Pollard’s driver’s license for 45 days.
Phelps and Scott County Attorney Glenn Williams said they were not aware that 40-year-old Peggy Williamson of London died a few hours after the crash last month. Williams said officials are “not precluded from pursuing other charges.”
No phone listing was available for Pollard, and he was not represented by an attorney in court.
Information from: Georgetown News-Graphic, http://www.georgetownnews
Read more: http://www.kentucky.com/2011/07/29/1828941/driver-in-fatal-wreck-gets-4-days.html#ixzz1UmnNldLt
Bringing different charges for the same act is double jeopardy and to allow that to happen is IMO a violation of the spirit and intent of the Fifth Amendment. The Prosecutors and Court should do their/its job properly the first time.
“District Judge Rebecca Phelps and prosecutors (County Attorney Glenn Williams) insisted that they had no idea someone died.”
Probably spending all their time at Ark Encounter seeking salvation.
Interestingly enough, Pollard was not represented by an attorney in court.
http://www.wsmv.com/story/15177526/driver-in-fatal-wreck-gets-4-days-in-jail
OS,
It is my opinion that if they Charge him with Just VMS and omit the aggravating factor of the DUI it would not be a potential violation. But if it is referred to at trial or sentencing and the sentence is extraordinary long…then you not only have a DJ issue but an Abuse of Sentence….These types of cases are hey days for prosecutors and judges they make MADD Happy….
Depending on his record it is very possible that the person would never see prison…maybe a long county stint….
AY, do you think that if they simply charge him with manslaughter and the indictment makes no reference to the DUI, will that pass the double jeopardy test? Recall the many cases where civil rights violations were brought against defendants who had been acquitted, such as the officers who beat up Rodney King.
OMG….Someone did not read the Police/Incident Report..this includes the prosecutor and Judge….This is also one of those gray areas where the attorney owes a duty to maintain client confidentiality and also candor to the tribunal….
This in my opinion is a gray area of Double J….If they do not use the underlying DUI to increase the penalty for Vehicular Manslaughter…which in some Jurisdiction is 2 to 10 years….depending on the Jurisdiction…
Why did information on this woman’s death not reach prosecutors?
Where were the woman’s family and friends at this man’s sentencing hearing?
If anything is amiss, perhaps one way to overcome double jeopardy is if court procedures were violated and the woman’s family/friends weren’t notified of the sentencing hearing.
Otherwise, both police and prosecutors need to be admonished. Someone dropped the ball – significantly.
President kills thousands of innocent men, women, and children, tortures hundreds more, receives standing ovation.