# IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

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### THIS OPINION ISDESIGNATED "NOTTOBE PUBLISHED." PURSUANT TO THE RULES OF CIVILPROCEDURE PROMULGATED BY THE SUPREME COURT, CR76.28(4)(C), THIS OPINIONISNOT TOBE PUBLISHED AND SHALLNOT BE CITED ORUSED AS BINDING PRECEDENT INANY OTHER CASE INANY COURT OFTHIS STATE; HOWEVER,
_ UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTERJANUARY 1, 2003, MAY BE CITED FOR CONSIDERATIONBY THE COURTIF THERE IS NO PUBLISHED OPINIONTHATWOULD ADEQUATELYADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FORCONSIDERATION BY THE COURT SHALLBE SET OUTAS AN UNPUBLISHED DECISIONIN THE FILEDDOCUMENTAND A COPY OF THE ENTIRE DECISION SHALLBE TENDERED ALONGWITHTHE DOCUMENT TO THE COURTAND ALLPARTIES TO THE ACTION.RENDERED: DECEMBER 14, 2017 NOT TO BE PUBLISHED

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2016-SC-000602-MR
MICHAEL ANDREW HARDY APPELLANT



## v. ON APPEAL FROM WARREN CIRCUIT COURT HONORABLE STEVE ALAN WILSON, JUDGE NO. 15-CR-00047
COMMONWEALTH OF KENTUCKY APPEL LEE

MEMORANDUM OPINION OF THE COURT AFFIRMING
On November 21, 2014, Appellant, Michael Andrew Hardy, began drinking whiskey earlyin the day. Hardy nearly rear-ended a friend's vehicle while following her to her family's home later that day. The friend directed him tp park his Jeep Wrangler in a grocery store parkinglot and ride the rest ofthe way with her. Hardy drank whiskey throughout the day athis friend's house. When Hardywas ready to leave, his friend and her husband attempted to convince Hardy to spend the evening at their residence. However, Hardy was persistent. He insisted that he would get a ride home, rather than drive. Hardy's friend begrudgingly drove him back to the grocery store parking lot. He assured his friend that he would be receiving a ride home from that location.Instead, Hardy got into his vehicle arid tried to drive himselfhome. Several witnesses saw Hardy's vehicle speeding down the road with its emergency flashers blinking, passing other drivers in a dangerou.s manner. He nearly caused a head-on collision with one witness, who testified that Hardy swerved to avoid rear-ending a slower driver and crossed into the witn.ess's path.· Another witness testified**th~t** she pulled her·vehicle aside to the shoulder to avoid being rear-ended by Hardy. Shortly after those narrow misses, Hardy rear-ended a Miata driven by the victim, Arthur "Jeremy".Pryor. Pryor was killed. '-'At the scene, Hardy could notrecall the collision with Pryor and thought he had struck a tree. Hardy admitted to first responders thathe had been drinking and had taken the antidepressant drug Seroquel. His'blood alcohol contentwas .190. Hardywas subsequentlyindicted and tried for: one count ofwanton murder; three counts ofwanton endangerment in the first degree; one count of criminal· mischiefin the first degree; and one count ofdriving while intoxicated. At trial, the Commonwealth offered witnesses who described seeing Hardy's vehicle speed by with its emergency flashers blinkingjustbefore the fatal accident. No one witnessed the actual collision-only its aftermath and Hardy's pre-collision speeding. Hardy did not rememberwhat caused the collision. Nevertheless, the collision:analysis showed that Hardy rear-ended Pryor's vehicle. An accident reconstructionist testified that Hardy struck the.victim's vehicle from the left, rear corner. Further analysis ofthe event data recorder 2(EDR) from Hardy's vehicle showed that he was driving.at 90 miles per hour in
a 30-mile-per-hour speed zone a tenth-of-a-second before the crash. The EDR also showed that Hardy did not apply the brakes pre-impact. Nor were there any visible signs ofpre-impactbraking on the roadway. Aside**f~oμi** a failed attempt to enter the victim's

__ toxicology report, Hardy offered no proofto refute· that he had rear-ended Pryor at an excessive speed, ) causing Pryor's death. AWarren Circuit Courtjuryconvicted Hardy ofwanton murder, three counts ofwanton endangerment, criminal mischief, and driving while intoxicated. Based upon thejury's recommendation, the trial court sentenced ( him to a total of20 years'imprisonment. Hardy raises threeissues on appeal
as a matter ofright. Ky.**~onst.** § 110(2)(b). 

### Exclusion ofVictim's Toxicology Report For his first assignment oferror, Hardy argues that the trial court wrongfully excluded the victim's toxicology report. We review alleged evipentiary errors for an·abuse ofdiscretion. 

### Commonwealth v. English, 993 S.W.2d'941, 945 (Ky. 1999). A postmortem toxicology report showed the presence ofbenzodiazepines and cannabinoids in the victim's blood and urine. The Commonwealth successfully argued that this toxicology evidence was irrelevant because there
was no proofthat the victim was driving improperly. The trial courtruled that Hardy had to show that the substances found during the toxicology report

3would have affected Pryor's driving and contributed to the collision before the report would be deemed relevant. Hardy did not meet the trial court's established burden for provingthe evidentiaryvalue ofthe toxicology report. The physician who performed.the autopsy affirmed that the level ofillicit substances found in the victi.m's body did not showthat the victim was impair:ed. Hardy did not provide proofthat the victim's drivingwas impaired at the time ofthe collision, nor that the victim's drivingwas generally impaired prior thereto. We must determine whether the evidence offered was relevant, and**whe~er** its substantive value substantially outweighed its prejudicial effect. _KRE 402; KRE 403. Relevant evidence must have "any tendency to make the existence ofany fac_t that is ofconsequence to the determination ofthe action
more probable or less probable than it would be without the evidence." KRE 401. Under KRE 403, prejudicial evidence should be admitted ifit is "evidence of some logical, qualifying information [that] enhance[s] the proffered evidence· beyond speculative, farfetched theories that may potentially confuse the issues
or mislead thejury." 

### Gray v. Commonwealth, 480 S.W.3d 253, 268 (Ky. 2016). Stated another way, a defendant may not "presentunsupported theories
... [that] invite thejuryto speculate as to some cause other than one supported by \ the evidence." 

### Davenport v. Commonwealth, 177 S.W.3d 763,,772 (Ky. 2005). Here, Hardy offered no proofthat Pryor's conduct had caused the collision. ·All evidence offered bythe prosecution supported that Hardy's
4wanton conduct had led him to rear-end the victim's vehicle. There was no evidence offered to support that the victim contributed to the accident's
occurrence in any way. Evidence ofillicit substances in the victim's bodywas not relevant to Hardy's charges, and so would have unduly prejudiced the victim's character. Itwould·only have served to confuse thejury aboutthe issues they were to decide in this case. Thus, we hold that the trial court properly excluded the victim's toxicology report. Selective Prosecution Claim For his second assignment oferror, Hardy claims that the Commonwealth used "selective prosecution" bynot extending a plea offer to him. Hardy alleges thatthe Commonwealth would have made a plea deal with other similarly...:situated defendants. We have stated that "[t]here is no·constitutional right to plea bargain and itis within the prosecutor's discretion to decide whether to plea bargain or go to trial." 

### Porterv. Commonwealth, 394 S.W.3d 382, 388 (Ky. 2011) (internal citation omitted). While this broad prosecutorial·discretion is "subject to constitutional constraints," 

### -United States v. Armstrong, 517 U.S. 456, 464 (1996) (quoting 

### United States 

### v. Batchelder, 442 U.S. 114, 125 (1979)), there have been no valid constitutional arguments proffered. As for Hardy's FourteenthAmendment and EighthAmendment claims, they are meritless. Similarly-situated drunk drivers are not a protected class. Likewise, similarly-situated defendants, sentenced according to statutorylaw,
are not

### perseconsidered subject to cruel orunusual punishment. 5Certainly, itwas within the Commonwealth's prosecutorial discretion to choose not to make 

### a plea deal with Hardy. 

### Porter, 394 S.W.3d at 388. "The
mere fact that 

### some other putative offenders are not prosecuted·does not make
a case of selective or arbitrary enforcement." 

### Johnson v. Commonwealth, 864 S.W.2d 266, 275 (Ky. 1993) (original emphasis). Therefore, Hardy's meritless claim of selective prosecution fails. Hardy's Recorded Statement "So What's That Mean For Me?" Lastly, Hardy claims that the trial court erred when it allowed a portion

. . ofhis recorded, post-collision statement to be played as a rebuttal to his testimony'. In response to learning that the victim he struck had been killed, Hardy asked an interrogating officer, "So what's that mean for me?" ·



### . 

### - Even though the trial courthad initiallyruled this post-collision statement should be suppressed, the court changed its ruling and allowed a portion ofHardy's statementin on cross-examination. The court reasoned**th~:i.t** Hardy's remorseful testimony was inconsistentwith his "so what's that mean for me" attitude the night of

## the accident and**~as** relevant to his state ofmind.· Hardy claims that this recorded statement did not meaningfully rebut his testimony expressing.remorse for Pryor's death and only served to prejudice him to thejury. Proofrelating to Hardy's remorse, or lack thereof, was relevant to determiningwhether Hardy wantonly operated his vehicle "under

. circumstances manifesting extreme indifference to human life." KRS

507.020(l)(b).
6Although the statementitselfmay have been prejudicial, the mere fact that certain evidence is prejudicial does not automatically merit its exclusion under KRE 403.· 

### Webb v. Commonwealth, 387 S.W.3d 319, 326 (Ky. 2012). The only valid argumentfor undue prejudice would have been made under the rule ofcompleteness. 

### See Sykes v. Commonwealth, 453 S.W.3d 722, 726 (Ky. 2015); KRE 106. · However, Hardy's counsel did not object to his recorded statement as an incomplete statementunder KRE 106, or argue that the full statement be played instead ofthe "snippet" Hardy complained ofin his brief. Thus, any potential argument Hardy may have had under KRE 106 was not properly preserved. Furthermore, even ifAppellant's argument had been framed within the context ofKRE 106, we canriot say that the trial ·court abused its discretion. RCr 9.24. 

### Conclusion For the foregoing reasons, we hereby affirm the decision ofthe Warren Circuit Court. All sitting. All concur.

7COUNSEL FORAPPELLANT: Daniel Jay Canon**CLAY~** DANIEL;WALTON, ADAMS, PLC Mark Hall MARK G. HALLAITORNEY, PLLC
COUNSEL FORAPPELLEE: Andy Beshear Attorney General ofKentucky JeffreyAllan Cross AssistantAttorney General

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