Background
After an evening of drinking in Lexington, Benjamin W. Call and John Tyler Abner went together to a parking garage. Surveillance video showed them hugging and caressing before an encounter inside Abner’s car. After they exited, Call dragged Abner from the car and repeatedly punched and kicked him, paused and entered the car, then returned and resumed the attack. Police arrived while Call was kicking Abner in the head. Abner died from multiple blunt-force injuries to his head and neck.
Call’s hospital blood-alcohol test, taken roughly two hours after the assault, showed a BAC of 0.309. At trial, he relied on voluntary intoxication and extreme emotional disturbance, presenting evidence of his impairment and family trauma involving sexual abuse. The jury received instructions on intentional and wanton murder in a combined instruction, lesser-included homicide offenses, voluntary intoxication, and extreme emotional disturbance. It convicted Call of murder and recommended the minimum twenty-year sentence.
On appeal as a matter of right, Call argued that he was entitled to a directed verdict because intoxication prevented him from forming an intent to kill and because an alleged sexual advance, combined with his family trauma, caused extreme emotional disturbance. He also challenged a detective’s unobjected-to testimony that Call was exaggerating his intoxication and attempting to construct a story.
The Court’s Holding
The Kentucky Supreme Court held that the circuit court properly submitted both intentional and wanton murder to the jury. Although the intoxication evidence warranted an instruction, it did not compel the conclusion that Call was unable to form intent. The prolonged beating, Call’s use of particular holds and forceful kicks, his pause before resuming the assault, and his immediate compliance when police arrived permitted a reasonable inference of purposeful conduct. The jury likewise was entitled to reject Call’s extreme-emotional-disturbance defense despite sufficient evidence to receive an instruction on it.
The evidence also supported wanton murder because Call repeatedly inflicted severe blows, returned to the attack, and continued kicking Abner after he stopped resisting. Those circumstances permitted the jury to find that Call consciously disregarded an exceptionally high and obvious risk of death, demonstrating extreme indifference to human life. Voluntary intoxication did not foreclose wantonness because Kentucky law treats a defendant who is unaware of a risk solely due to voluntary intoxication as acting wantonly.
The Court further held that Detective Tim Moore could properly describe his personal observations, including that Call spoke without slurring, did not smell of alcohol, and complied with officers. But Moore exceeded the permissible scope of lay testimony when, invoking his training and experience, he opined that Call was not too intoxicated to remember the incident and was instead trying to assemble a story. Because Call had not objected, the Court reviewed for palpable error and concluded that the improper testimony did not cause manifest injustice in light of the substantial independent evidence of guilt.
Key Takeaways
- Strong evidence of intoxication may justify a voluntary-intoxication instruction without requiring acquittal; the jury decides whether the impairment actually negated intent.
- A prolonged beating that continues after the victim stops resisting can support wanton murder based on extreme indifference to human life.
- A police officer may describe observed signs of intoxication but may not use training and experience to opine that a defendant remembers the crime or is fabricating a story.
- Because the evidentiary issue was unpreserved, reversal required manifest injustice, which the Court found absent given the other evidence of guilt.
Why It Matters
The decision illustrates the distinction between evidence sufficient to place intoxication or extreme emotional disturbance before a jury and evidence so compelling that a murder conviction becomes clearly unreasonable. It also confirms that a brutal, sustained assault may support either intentional or wanton murder, depending on the inferences the jury draws about the defendant’s mental state.
The opinion also marks a limit on police lay-opinion testimony: officers may recount what they personally observed, but they cannot cloak conclusions about memory, impairment, or fabrication in professional authority without an adequate evidentiary basis. The opinion is designated “Not to Be Published” and is not binding precedent under Kentucky RAP 40(D), though qualifying final unpublished opinions may be cited for consideration under RAP 41 when no published opinion adequately addresses the legal point.