Background
Mark West stole Montell Hall’s running Ford Fusion from an Ohio gas station. Hall, his girlfriend Ke’Mani McKinnie, and a neighbor tracked the car to a Kroger in Fort Mitchell, Kentucky, and boxed it in at the gas pumps. When they confronted West, he reversed into the vehicle behind him and then accelerated forward while Hall remained partly outside the Fusion. McKinnie shot West in the neck during the confrontation. West continued through the parking area, throwing Hall into another vehicle, striking multiple vehicles and a safety post, and eventually becoming stuck after driving over a curb.
West admitted stealing the car but testified that he fled because he believed Hall and McKinnie were trying to kill him and that shock and panic after the shooting affected his driving. A jury convicted him of receiving stolen property, first-degree wanton endangerment, two counts of first-degree criminal mischief, and first-degree persistent felony offender status. Although the jury recommended consecutive sentences totaling 60 years, the Kenton Circuit Court imposed the statutory maximum of 20 years. West appealed as a matter of right.
The Court’s Holding
The Supreme Court of Kentucky affirmed. It held that the trial court properly denied directed verdicts on the wanton-endangerment and criminal-mischief charges because a rational jury could find that West consciously disregarded the obvious risks of driving away with Hall partly outside the car and careening into nearby vehicles. West’s shooting and claimed shock were circumstances for the jury to weigh, but they did not make him legally incapable of acting wantonly.
The Court also held that West was not entitled to a choice-of-evils instruction on the criminal-mischief counts because his intentional theft of the car wantonly created the circumstances that produced the claimed need to escape. The prosecutor did not violate attorney-client privilege by asking only whether West had consulted counsel before admitting the theft, without asking about the substance of any privileged communication. Evidence that West attempted to use McKinnie’s Cash App card was admissible to explain how police located surveillance footage, while any error involving evidence of speeding and liquor theft was cured by the court’s admonition.
During sentencing, the prosecutor improperly invoked regional prejudice by portraying West as an outsider bringing crime into Kenton County, and exhibits improperly disclosed charges that had been dismissed or reduced. Because the regional remarks were isolated, the dismissed or amended charges were not discussed in testimony or argument, and the evidence included West’s ten prior felony convictions, the errors were neither palpable nor cumulatively sufficient to make the proceeding fundamentally unfair.
Key Takeaways
- A defendant’s stressful circumstances, including being shot while fleeing, do not require a directed verdict when the evidence still permits a jury to find conscious disregard of substantial risks.
- Kentucky’s choice-of-evils defense is unavailable for an offense based on wantonness when the defendant acted wantonly or recklessly in creating the emergency requiring the charged conduct.
- Asking whether a defendant consulted counsel does not invade attorney-client privilege when the questioning does not seek the content of privileged communications.
- Appeals to regional prejudice and disclosure of dismissed or amended charges may be erroneous without warranting reversal when unpreserved, isolated, and unlikely to have changed the result.
Why It Matters
The decision illustrates the distinction between evidence that may persuade a jury that a defendant lacked a wanton mental state and circumstances that legally preclude a finding of wantonness. It also limits the choice-of-evils defense when the defendant’s own culpable conduct created the asserted emergency.
The opinion further shows the demanding standard for obtaining relief from unpreserved penalty-phase errors. Although the Court expressly disapproved of the prosecutor’s appeal to local prejudice and the inclusion of dismissed or reduced charges in exhibits, it left the sentence intact after evaluating the proceeding as a whole. The opinion is designated not to be published and is not binding precedent under Kentucky RAP 40(D).