GEORGE H . BURCHETT, JR . V. COMMONWEALTH OF KENTUCKY
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RENDERED : JANUARY 23, 2003
TO BE PUBLISHED
GEORGE H . BURCHETT, JR.
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
1998-CA-2729-MR
GREEN CIRCUIT COURT NO . 1998-CR-0007
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE JOHNSTONE
REVERSING AND RE MANDING
As the result of a fatal automobile collision, Appellant, George Burchett, Jr., was
convicted by a Green Circuit Court jury of reckless homicide, for which he received a
sentence of five years' imprisonment . Burchett appealed his conviction to the Court of
Appeals and that court affirmed . We granted discretionary review to consider the only
issue raised on appeal: whether evidence that a defendant smoked marijuana on a
daily basis is admissible to prove that he smoked marijuana on the day of the collision .
For the reasons discussed below, we hold this evidence to be inadmissible ;
accordingly, we reverse and remand this case to the circuit court .
On December 12, 1997, Sherman Darnell was killed when his vehicle was struck
by Appellant's vehicle . Mr. Darned, traveling on highway 61 in Green County, Kentucky,
had the right of way and was not required to stop at the Bloyds Crossing intersection of
highway 569 . Appellant, traveling on highway 569, failed to stop at the intersection and
caused the collision . Although Appellant initially denied running the stop sign, brake
marks conclusively indicate that he skidded through the intersection . At the time of the
collision, Appellant was on his way to the Taylor County Hospital to visit his girlfriend,
Melissa Grider, who had given birth to their child the previous day. Appellant and
Grider worked together on the farm owned by David and Dorothy Scott. On the
afternoon of the collision, Grider telephoned the Scott residence and left a message for
Appellant to come to the hospital as soon as he finished work. Fearing for the health of
his child, Appellant left for the hospital after he received the message . The fatal collision
occurred shortly afterward, around 3:40 p .m .
Soon after the collision, police trooper Whitlock began his investigation . Trooper
Whitlock found an unopened, one-half gallon bottle of vodka in Appellant's vehicle .
When questioned, Appellant denied that he had consumed any alcohol that day.
Appellant was then taken to Taylor County Hospital, where he was treated for his minor
injuries . During his treatment and evaluation at the hospital, Appellant told the
emergency room nurse that he drinks "anywhere from one-half to three-fourths of a
gallon a day of vodka" and that he smokes marijuana daily, "one joint in the morning
and one at night ." To the nurse, Appellant denied smoking marijuana the day of the
collision . But Appellant later told a lab tech that he smoked "this morning ." The treating
physician's notes support the lab tech's version of events. A lab test of Appellant's
blood later confirmed that Appellant drank no alcohol before the collision . A drug
screen of Appellant's urine sample revealed the presence of three substances :
benzodiazepines (e.g_, Valium), opiates (e .g ., Tylenol 3), and tetrahydrocannabinol
(THC) (marijuana) . Unfortunately, the blood sample was insufficient to test for these
drugs.
Appellant was indicted for second-degree manslaughter . This offense requires
proof of a wanton mental state. One way to prove wantonness is to show that the
defendant in a vehicle-homicide case was driving while intoxicated. See Estep. v.
Commonwealth , Ky., 957 S.W .2d 191 (1997). Consequently, the prosecutor intended
to show that Appellant was under the influence of marijuana or other drugs at the time
of his collision with Mr. Darnell . While Appellant did not contest admission of evidence
that he smoked a marijuana cigarette the day before the collision, Appellant did contest
the admission of any evidence that he had a habit of drinking alcohol or smoking
marijuana everyday. Relying primarily on KRE 404(b) and KRE 403, Appellant made a
motion in limine to suppress such habit evidence . Just before trial, the court ruled that
evidence concerning Appellant's daily drinking would not be admitted . But the court
also ruled that evidence of Appellant's daily use of marijuana was admissible .
This evidence was first introduced during the prosecution's direct examination of
the emergency room nurse, who read the notes she took after assessing Appellant in
the ER: "Patient states I smoke one joint in the morning and one at night." The nurse
later read the physician's notes : "[Patient a]dmits to one joint this morning . Two joints
daily." Later, Appellant admitted on direct examination that he told a hospital employee
that he usually smoked a "joint" at night and in the morning . Appellant also admitted
smoking marijuana the day before the collision and taking Tylenol 3 and Valium the day
before, and the day of, the collision . Appellant testified that he has had spinal bifida
since he was a child and he uses the Tylenol 3 and Valium - for which he does not
have a prescription - to ease the muscle spasms in his leg and the swollen joints in his
back. Appellant further admitted that he gave conflicting statements to hospital
personnel about whether he smoked marijuana the morning of the collision . But
despite his admitted daily marijuana usage, and his conflicting statements at the
hospital, at trial he denied that he smoked marijuana the morning of the collision .
Appellant explained that he accompanied his girlfriend to the hospital to induce
labor at 5 :00 a.m . on December 11 . He smoked marijuana while she drove . He stayed
at the hospital all day, save one trip to Wal-Mart for baby clothes, and spent the night at
the hospital . The next day, the day of the collision, he left the hospital around 6 :30 a .m .
to go directly to work. He later testified that if he had marijuana that morning, he
probably would have smoked it, but he did not. Concerning his inconsistent statements,
Appellant testified : "I told somebody that I had smoked some weed earlier [the morning
of the collision] but it was the day before . It was on the 11 th when I smoked the weed
because I didn't have none [on the 12th] ." On cross-examination the prosecutor
explored Appellant's marijuana use in depth, asking questions like : "[At what age] did
you start smoking?" "What's your normal consumption?" The prosecutor finally
concluded : "You're just pretty much a one joint morning [sic] and one joint at night,
that's just your habit ."
The jury was instructed on second-degree manslaughter and reckless homicide .
Appellant was convicted of the lesser offense, reckless homicide . He appealed to the
Court of Appeals, and now this Court, decrying the admission of evidence of his daily
marijuana use . Appellant argues that the evidence was habit evidence, which has been
inadmissible in Kentucky courts for at least a century . See Chesapeake & O . Ry. Co . v.
Riddle's Adm'r, Ky., 72 S .W . 22 (1903).
In _Louisville & N.R . Co. v. Taylor's Adm'r, Ky., 104 S .W. 776 (1907), it was held :
"[N]either side can give in evidence what the custom or practice of either of the parties
is. The question is not what they were accustomed to do, but what they did at the time
in controversy." This reasoning was subsequently affirmed decades later in Cincinnati .
N.O. & T .P . Ry. Co . v. Hare's Adm'x , 297 Ky. 5, 178 S .W .2d 835 (1944), overruled on
other grounds , Louisville & N .R . Co . v. Fisher , 357 S .W .2d 683 (1962) . In 1990, the
General Assembly sought to permit habit evidence when it enacted KRS 422A .0406,
which would have created a state counterpart to the federal rule permitting habit
evidence . See FRE 406 . But KRS 422A.0406 was subject to the approval of this Court
and, consistent with our longstanding case law, we rejected that legislation, which was
subsequently repealed . 1992 Ky. Acts, ch . 324, § 30. This judicial aversion to habit
evidence lead Professor Lawson to accurately remark: "The appeals courts of
Kentucky have not looked with favor upon evidence of habit . Such evidence has
consistently been declared to be inadmissible under Kentucky law." Robert G . Lawson,
The Kentucky Evidence Law Handbook , § 2.35, at 116 (3d ed . Michie 1993) . Indeed,
as recently as 1994, this Court approved of the reasoning in Louisville & N.R. Co. See
Johnson v. Commonwealth , Ky., 885 S .W .2d 951 (1994) .
Despite the unanimity of our past decisions, we consider the issue anew.
Defining the subject matter is a natural starting point, though, as discussed in the
concurring opinion, that is no mean feat. In his treatise on the law of evidence,
McCormick attempted the task, both defining "habit" and distinguishing it from
"character" :
Character and habit are close akin . Character is a
generalized description of one's disposition, or of one's
disposition in respect to a general trait, such as honesty,
temperance, or peacefulness . "Habit," in modern usage,
both lay and psychological, is more specific . It describes
one's regular response to a repeated specific situation. If we
speak of character for care, we think of the person's
tendency to act prudently in all the varying situations of life,
in business, family life, in handling automobiles and in
walking across the street . A habit, on the other hand, is the
person's regular practice of meeting a particular kind of
situation with a specific type of conduct, such as the habit of
going down a particular stairway two stairs at a time, or of
giving the hand-signal for a left turn, or of alighting from
railway cars while they are moving . The doing of habitual
acts may become semi-automatic .
FIRE 406 Advisory Committee's Note (1972) (quoting McCormick, Evidence , § 162, at
340 [now see John W. Strong, 1 McCormick on Evidence, § 195, at 584-85 (5th ed .
West 1999)]) . The admissibility of character evidence in Kentucky is governed by KRE
404(a) and such evidence is generally inadmissible, unless some exception permits it.
Habit evidence is viewed as more reliable than character evidence by those jurisdictions
that admit habit evidence . The federal courts apply FIRE 406, which reads:
Evidence of the habit of a person or of the routine practice of an
organization, whether corroborated or not and regardless of the
presence of eyewitnesses, is relevant to prove that the conduct
of the person or organization on a particular occasion was in
conformity with the habit or routine practice .
Most states have adopted a version of FIRE 406, either by rule or by statute. Kentucky
is one of the few jurisdictions in the United States that does not currently admit such
evidence . Instead of unquestioningly following our sister jurisdictions, we examine the
soundness of the rule and the ramifications of adopting it.
While habit evidence has an intuitive appeal, close scrutiny reveals numerous
difficulties with its use. These difficulties do more than suggest that the correct course
is not to allow such evidence . The most glaring problem is that the introduction of habit
evidence violates KRE 403 . Questions of admissibility start with KRE 401, which
permits evidence "having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it
would be without the evidence ." Evidence that a person had a "regular" or "routine"
practice of performing some action would meet the requirement of KRE 401 . And all
relevant evidence, including evidence of a routine practice, is admissible, unless
otherwise prohibited . See KRE 402 . But "relevant0 evidence may be excluded if its
probative value is substantially outweighed by [1 ] the danger of undue prejudice, [2]
confusion of the issues . . . . or by [3] considerations of undue delay . . . . .. See KRE 403 .
Habit evidence implicates all three of these impermissible results .
It is easy to recognize the prejudice to the defendant if the prosecutor is
permitted to attach the label of "habit" to his actions . E John Doe has the "habit" of
.,
.g
watching pornographic videos after work in front of his minor daughters. Or, John Doe
has the "habit" of beating his wife on the weekends. Simply characterizing the
defendant's , actions as a "habit" attaches excessive significance in the minds of jurors,
as Wright and Graham noted : "Even if the court thought that the specific instances of
conduct had some probative worth so as to be admissible on another ground, e .g_, Rule
404(b), the court may feel that permitting the label 'habit' to be attached to the evidence
may tend to unfairly enhance its value in the eyes of the jury." 23 Wright and Graham,
Federal Practice and Procedure Evidence, § 5273 (1980). The label becomes a
scarlet letter. Because of that, courts have correctly been "reluctant to admit evidence
that a person is a 'habitual drunk' or has a habit of reckless driving [or smoking a joint
every morning] [because] such evidence may be more prejudicial than probative with
respect to the issues in the case ." Id . In this case, the prosecutor used the term in just
this inflammatory manner when he declared : "You're just pretty much a one joint
morning [sic] and one joint at night, that's just your habit."
Confusion of the issues and delay are additional unwanted, but unavoidable,
byproducts of habit evidence . In deciding whether certain conduct constitutes habit,
"courts consider three factors : (1) the degree to which the conduct is reflexive or semi
automatic as opposed to volitional ; (2) the specificity or particularity of the conduct; and
(3) the regularity or numerosity of the examples of the conduct." United States v.
Anawin , 271 F .3d 786 (9th Cir. 2001) (internal citations omitted) . In Wilson v.
Volkswagen of America, Inc. , 561 F.2d 494 (4th Cir. 1977), cert. denied, 434 U.S . 1020
(1978), the Fourth Circuit clarified this last factor: "[N]o finding is supportable under
[FRE] 406[] which fails to examine critically the `ratio of reactions to situations.'
Necessarily, as we have seen, regularity of conduct . . . requires some comparison of
the number of instances in which any such conduct occurs with the number in which no
such conduct took place ." (Footnote omitted) . The Advisory Committee underscored
the idea that "adequacy of sampling and uniformity of response are key factors" for
measuring the sufficiency of the evidence . Advisory Committee Notes, FIRE 406.
But proof of these occurrences requires numerous collateral inquiries, which
leads to delay and jury confusion unacceptable under KRE 403. The original draft of
FIRE 406 provided that habit could be proven by testimony in the form of an opinion or
by specific instances of conduct sufficient to show the habit existed . Congress chose
instead to permit courts to develop methods of proof on a case-by-case basis . 2
Stephen A. Saltzburg, Michael M . Martin & Daniel J . Capra, Federal Rules of Evidence
Manual , § 406.02[5] (8th ed . 2002). As Professors Saltzburg, et. al., concluded, opinion
testimony is still the best way to prove a habit :
[T]he best proof of a habit is that someone acted in a
particular way at specific and frequent instances, and also
that the person did not act otherwise at other similar
instances . Probably the best testimony will be by a witness
who has personal knowledge of the conduct of the relevant
actor on numerous separate occasions.
Id . But this sort of collateral-issue testimony can only delay court proceedings and
confuse the issue, as the following observations demonstrate :
So, assuming the [habit] evidence in question to be relevant,
I think it should be held incompetent . . . because its
probative force does not outweigh the inconvenience of a
multitude of collateral issues, not suggested by the
pleadings, the trial of which would take much time, tend to
create confusion and do little good . . . . Habit is an
inference from many acts, each of which presents an issue
to be tried, and necessarily involves direct, and naturally
invites cross-examination. The circumstances surrounding
each act present another issue, and thus many collateral
issues would be involved which would not only consume
much time, but would tend to distract the jury and lead them
away from the main issue to be decided .
Levin v. United States, 338 F .2d 265, 271 (U .S . App. D.C. 1964) (quoting Zucker v.
Whitridge , 98 N.E . 209, 213 (N .Y. App . 1912)) ; see also Simplex . Inc . v. Diversified
Energy Systems . Inc. , 847 F.2d 1290 (7th Cir 1988) ; Wright and Graham, § 5272
("[S]ince habit can only be proved by inquiry into instances of alleged habitual conduct,
expanding the admissibility of habit evidence would . . . lead[] to costly collateral
inquiries into whether the instances offered to support the habit had indeed taken
place .") Even in cases where the habit evidence is ultimately excluded, the attorneys
must still prepare the evidence and the judge must still examine it .
This kind of extensive "habit" testimony occurred in Perrin v. Anderson , 784 F .2d
1040 (10th Cir. 1986). Perrin was killed by two police officers after they attempted to
question him about an automobile accident . According to the officers, Perrin attacked
them during the questioning . The defendant-officers made an offer of proof that other
police officers would testify about numerous violent encounters instigated by Perrin
against these officers . Ultimately, four officers were permitted to testify about five such
incidents. The Tenth Circuit agreed with the trial court that this evidence was properly
admitted as evidence of habit tending to prove that Perrin was the first aggressor.
Aside from the fact that the testimony of these officers appears to be impermissible
character evidence and not evidence of habit, it is clear that to establish the "habit," four
witnesses were examined and cross-examined . Though not discussed in the Court of
Appeals' decision, it is highly probable that plaintiffs counsel was permitted to crossexamine the officers about the details of those encounters in order to establish how
they were different from the one in question . All of this testimony about habit could
have easily distracted the jury from the central issue in the case: Did Perrin attack the
police officers and threaten their lives on that particular day?
In the present case, even though Appellant testified about his own habit, there
were numerous collateral evidentiary issues related to his marijuana use that were not
explored, but likely could have been. These issues could easily have involved other
witnesses. Appellant testified that he slept at the hospital the night before the collision
and he drove directly to work the next morning . Even if he smoked marijuana "every"
morning - a statement that is likely not literally true - he could not smoke it if he did not
have any. How much evidence could Appellant introduce that he never kept marijuana
in his truck but only at his home? Or that when he spent the night away from home, he
-10-
did not smoke marijuana in the morning? Could Appellant offer evidence that he did
not have marijuana when other important family events occurred, like the death of a
parent or sibling? Or that he typically ran out of marijuana on a particular day of the
week? Or that he met his supplier on a typical day? This is the type of evidence that
delays trials and confuses jurors - an exorbitant price to pay for evidence that fails to
even address the critical issue.
Another difficulty that plagues the use of habit evidence is the inexorable
tendency for courts to require less and less proof of the habit. Appellant testified that
he typically smoked marijuana everyday. If this statement were true, it would be simple
to calculate the ratio of reactions to situations - one. But few cases are likely to have
such a unitary ratio . This begs the question concerning how many instances of a
practice and what ratio of reactions to situations is sufficient to establish proof of a
habit . Judges and scholars have yet to offer good answers to this question . Perhaps
evidence of four instances would be enough to conclude that the defendant had a habit.
See Whittemore v. Lockheed Aircraft Corp . , 151 P.2d 670, 678 (Cal . App . 1944)
(evidence that alleged pilot of crashed aircraft was pilot on four previous flights admitted
to show habit) (cited with approval in Advisory Committee notes) ; see also Chomicki v.
Wittekind , 381 N .W .2d 561, 565 (Wis . App. 1985) (Testimony of four female tenants
that landlord made sexual advances held sufficient to establish habit. Significantly, the
court made no determination of how many female tenants landlord dealt with, i .e., no
attempt was made to determine the ratio of reactions to situations.); Wright and
Graham, § 5273 (". . . the standard of frequency for the admissibility of habit evidence
. . . appears to be weakening") . Indeed, one court has even divined a habit from a
single act . See French v. Sorano, 247 N .W .2d 182, 186 (Wis . 1976) (one instance of
person hiding money in car sufficient to demonstrate a habit). The tendency of courts
to go down this judicial slippery slope further attenuates the efficacy of this already
dubious evidence .
Of course one of the most compelling reasons to exclude habit evidence is
presented by the facts of this case. Appellant stated that, in addition to smoking
marijuana daily, it was his normal routine to drink one-half to three-quarters of a gallon
of vodka daily . If habit evidence were admissible, Appellant's drinking practice would
have been admissible as substantive evidence that Appellant had likely been drinking
on the day of the collision . That evidence would undoubtedly weigh heavily on the
minds of the jurors . But that evidence would have been utterly false . In fact, Appellant
did not drink any alcohol that day, as was confirmed by the blood alcohol test, which
was the only reason the evidence of Appellant's drinking "habit" was excluded .
Unfortunately for Appellant, his blood sample could not be tested and the drug test
results could not corroborate his testimony that he did not smoke marijuana that
morning, so evidence of his daily smoking was admitted . This scenario ferrets out the
dangerous non sequitur that the habit evidence rule encourages: because a defendant
regularly performs a particular act, he also did so on this particular occasion . In light of
these difficulties, this Court chooses to avoid the introduction of such specious
evidence into the courtrooms of this Commonwealth .
Having no proper basis for admission, the evidence of Appellant's marijuana use
should have been excluded . This error by the trial court was not harmless .
Accordingly, we reverse and remand this case to the Green Circuit Court for a new trial
consistent with this Opinion .
Lambert, C .J ., and Stumbo, J ., concur. Keller, J ., concurs in result only by
separate opinion . Cooper, J ., dissents by separate opinion, with Graves and
Wintersheimer, JJ ., joining that dissent.
COUNSEL FOR APPELLANT :
Irvin Halbleib, Jr.
P . 0 . Box 16175
Louisville, KY 40256
COUNSEL FOR APPELLEE :
A. B . Chandler, III
Attorney General of Kentucky
Dennis W . Shepherd
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601
RENDERED : JANUARY 23, 2003
TO BE PUBLISHED
,Suprmt (fourf of ~rttfurkg
2000-SC-0179-DG
GEORGE H . BURCHETT, JR.
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
98-CA-2729
GREEN CIRCUIT COURT NO. 98-CR-7
COMMONWEALTH OF KENTUCKY
APPELLEE
CONCURRING OPINION BY JUSTICE KELLER
Although I agree with the plurality opinion's ultimate holding in this case, I follow
a very different path to that conclusion . And, in fact, as to certain fundamental issues e .g ., whether evidence of a person's habits is actually probative of his or her conduct on
a particular occasion - my views diverge sharply from those expressed in the plurality
opinion and are aligned quite closely with those held by the dissenters .
In particular,
while I acknowledge that Justice Johnstone has outlined some valid concerns regarding
the potential malleability of the habit label, I believe that those concerns could be
allayed with an appropriately narrow definition and/or interpretation of habit, and thus I
would support this Court's adoption of an evidentiary rule permitting the introduction of
habit evidence for the purpose of proving conforming action on a particular occasion .
vote to reverse Appellant's convictions and to remand this indictment for a new trial,
however, because, in my opinion, before Kentucky trial courts may permit the
introduction of habit evidence, this Court must amend the Kentucky Rules of Evidence
I
in accordance with the procedures outlined in KRE 1102. In large part, my conclusions
in this regard stem from my belief that, through its purposeful rejection of proposed
KRE 406, this Court "took the initiative to retain preexisting law . . . that evidence of
habit is not admissible."' Accordingly, I concur with the plurality's conclusion that the
trial court in this case improperly allowed the Commonwealth to introduce evidence of
Appellant's daily marijuana use to prove that Appellant smoked marijuana on the date in
question .
In large part, the view expressed by the dissenters should be seen as the
progeny of five-year-old dicta in Stringer v. Commonwealth 2 suggesting that the
admissibility of habit evidence, like so-called "ultimate issue" evidence, was an
evidentiary question "left open" when proposed KRE 406 was not adopted with the rest
of the Kentucky Rules of Evidence. My vote falls the way it does because I have a
different opinion as to the significance of this Court's rejection of proposed KRE 406 .
Today's dissenters conclude that the Court's "failure to approve" proposed KRE 406
was an act without significance, and suggest that the answer to the allegedly "open
question" regarding the admissibility of habit evidence can be found in KRE 401 and
KRE 402 . I, however, believe that the Court's explicit rejection of proposed KRE 406
'Robert G . Lawson, William S . Cooper, and William H . Fortune, Kentucky
of Evidence § 2.51 (UK/CLE, 2d .ed ., 2002). I recognize that this Second Edition of the
monograph, which was published while this case was pending on appeal, also states
elsewhere in a new Chapter that "the preexisting common law on habit . . . comes into
direct conflict with the plain language of KRE 402," _id . at § 1 .27 - an observation on the
part of the monograph's authors that also may be found elsewhere . See Robert G.
Lawson, Interpretation of the Kentucky Rules of Evidence - What Happened to the
Common Law?, 87 Ky. L .J . 517, 576 (1999); Dissenting Opinion, ante . The language I
quote above, however, was carried over from the first edition, see Cooper, Fortune,
Lawson & Niehaus, Kentucky Rules of Evidence , § D-3, (UK/CLE, 1992), and thus in
my view represents a more accurate, contemporaneous interpretation of the
significance of this Court's rejection of proposed KRE 406.
demonstrated the Court's intention to continue to exclude habit evidence under the
relevancy provisions of the new Kentucky Rules of Evidence . In large part, our
divergence of opinion stems from a separate, and perhaps more fundamental,
disagreement about the nature and purpose of proposed KRE 406 . The dissenters
interpret proposed KRE 406, much like Stringer interpreted proposed KRE 704, as a
provision with little more than tautological significance that failed to "add anything" to
the relevancy rules .
I disagree, and I find the Evidence Rules Study Commission's
commentary to the proposed KRE 406, which states that "Rule 406 authorizes the
introduction of a person's habit," s important :
Rule 406 effectuates a significant change in the preexisting law of Kentucky. The courts of Kentucky have
consistently rejected evidence of habit when offered to prove
conforming behavior. See e .g., Lexington R. Co . v. Herring ,
29 Ky. L .R. 865, 96 S .W . 558 (Ky. 1906) ; Cincinnati, N .O . &
T.P. Rv. Co . v. Hare's Adm'x , 297 Ky. 5,178 S .W .2d 835
(Ky. 1944). This change serves to bring Kentucky law in line
with the law of other jurisdictions and with the federal law. 4
Also illuminating is the Committee's commentary to KRE 401 that states that the
broadly inclusionary definition of "relevant evidence" in the Kentucky Rules of Evidence
corresponds with the definitions utilized under Kentucky common law and that common
law precedent would guide KRE 401 relevancy determinations :
The definition of relevancy provided by this rule, although
more carefully and precisely stated, is not significantly
different from the definition previously used in this state.
The old Kentucky Court of Appeals said that "the term
'relevant' as applied to evidence means that the evidence
tends to establish or disprove an issue in litigation ." O'B an
2 Ky ., 956 S.W.2d 883 (1997), cert. denied , 523 U .S. 1052 (1998).
3 Evidence Rules Study Commission, Kentucky Rules of Evidence at 29 (Final
Draft 1989) (emphasis added) .
4Id . at 29-30 (emphasis added) .
v. Massey-Ferguson, Inc. , 413 S .W.2d 891, 893 (Ky. 1967),
and on an earlier occasion that evidence is relevant when it
"tends to make the proposition at issue either more or less
probable," Mason v. Bruner's Adm'r, 10 Ky.L .Rep. 155
(1888) . Prior rulings on the relevancy of particular types of
evidence will serve as useful guideposts for lawyers and
judges .
When considered in the context of the contemporary understanding of these
provisions, the Court's rejection of the proposed KRE 406 takes on a light different from
that suggested by the dissenters . The Court adopted a definition of "relevant evidence"
-- KRE 401 -- that was consistent with existing precedent and that it understood to be
guided by its prior jurisprudence, but rejected a specific rule of relevance -- proposed
KRE 406 -- that would have changed Kentucky evidence law by permitting the
introduction of habit evidence that Kentucky courts consistently had found not relevant .
Academics who study the law of evidence interpreted the Court's rejection of proposed
KRE 406 as an indication "that the Supreme Court intends to keep Kentucky on its prior
course, which would mean that evidence of habit is not admissible to prove conformity
therewith on a given occasion .,,6 In addition, opinions written and/or joined by members
of this Court who participated in the contemporaneous decision to reject proposed KRE
704 reflect that KRE 704's deletion was deliberate and intended to retain then-existing
common law as to the admissibility of "ultimate issue" testimony .' It requires no great
'Id . at 21 .
6 Robert G . Lawson, The Kentucky Evidence Law Handbook § 2 .35, at 117 (3d
ed . Michie 1993) . See also Richard H. Underwood & Glen Weissenberger, Kentucky
Evidence: 2001 Courtroom Manual at 123 (Anderson Publishing Co . 2000) ("The
original draft of the KRE included a provision like FRE 406, which would have permitted
the use of habit evidence . However, the Supreme Court deleted the proposed rule, and
one can only assume that this is another instance in which the Court is going to steer
the old course rather than adopt the majority position exemplified by the FRE.").
'See Newkirk v. Commonwealth , Ky., 937 S .W . 2d 690, 694 (1997) (Current
leap of logic to conclude that the Court's rejection of proposed KRE 406 was motivated
by a similar desire to preserve the status quo. While today's dissenters suggest that
the Court's failure to adopt proposed KRE 406 was an act without independent
significance that merely paved the way for the admission of habit evidence under KRE
401 and KRE 402, that suggestion is, in my view, baseless historical revisionism .
Considered in the appropriate context, this Court's rejection of proposed KRE
406 evidenced its intent that habit evidence would remain inadmissible after the
adoption of the Kentucky Rules of Evidence . Today's dissenters wish simply to change
the law because they have reached a different conclusion as to the relevance of habit
evidence . Instead of changing the rules in the middle of the game by reevaluating this
Court's previous relevancy determinations, I believe this Court must follow the
procedures outlined in KRE 1102 if it wishes to permit the introduction of habit evidence
to prove conforming behavior . While I would support such an amendment, and I
observe that the Evidence Rules Review Commission has recently recommended rule
changes to this Court, the Commission has not yet recommended adoption of a rule
Chief Justice Lambert writing for a majority including then-Chief Justice Stephens that
"there is no ambiguity in our decision to eliminate the proposed Rule 704 from the
Kentucky Rules of Evidence.") ; Stringer v. Commonwealth , supra note 3 at 896
(Lambert, J. concurring) (expressing a similar argument in a concurring opinion joined
by then-Chief Justice Stephens) ; Id. at 897 (Stumbo, J., dissenting, joined in part by
Justice Lambert) :
We do more here than simply interpret KRE 401 and KRE
702 . As the Newkirk opinion observes, there was no
inadvertence in our failure to adopt FRE 704 ; it was
deliberately rejected after thorough consideration . In direct
violation of KRE 1102, the majority's opinion does precisely
what this Court refused to do when we rejected proposed
KRE 704.
permitting the introduction of habit evidence. And, until such a proposal comes before
the Court, I believe we should apply the Rules of Evidence as previously adopted,
understood, and interpreted by the Court, and should not undermine predictability and
consistency in the law of evidence by reevaluating common law notions of relevancy
that were accepted when the Rules were adopted and that this Court intended to
continue after their adoption . Accordingly, I believe the trial court committed reversible
error when it allowed the Commonwealth to introduce evidence of Appellant's marijuana
"habits" in the face of an unbroken line of precedent from this Court prohibiting the
introduction of habit evidence, and I would reverse the Court of Appeals and remand
Appellant's indictment to the trial court for a new trial.
RENDERED : JANUARY 23, 2003
TO BE PUBLISHED
#uVretur (mart of Wentackg
2000-SC-0179-DG
GEORGE H . BURCHETT, JR.
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
98-CA-2729
GREEN CIRCUIT COURT NO. 98-CR-7
COMMONWEALTH OF KENTUCKY
APPELLEE
DISSENTING OPINION BY JUSTICE COOPER
On December 12, 1997, Appellant George H . Burchett, Jr., drove his vehicle past
a stop sign without slackening speed and into the Bloyds Crossing intersection of
Kentucky highways 61 and 569 in Green County, Kentucky, and collided with a vehicle
being driven by Sherman Darnell . Darnell, who had the right of way at the intersection,
was resultantly killed . Appellant was indicted for manslaughter in the second degree
and, following a trial by jury, convicted of reckless homicide and sentenced to
imprisonment for five years . To prove a criminal mens rea , i.e. , wantonness or
recklessness, as opposed to mere negligence, the Commonwealth sought to prove that
Appellant was operating his vehicle under the influence of drugs and/or alcohol .
See Estep v. Commonwealth, Ky., 957 S.W.2d 191, 193 (1997) (wanton murder
conviction upheld on evidence of the defendant's ingestion of controlled substances
and subsequent erratic operation of a motor vehicle) . Specifically, the Commonwealth
sought to introduce evidence of Appellant's own statements made at the scene of the
collision and/or subsequently at the hospital that he "drinks anywhere from one-half to
three-fourths of a gallon a day of vodka" (one-half gallon of vodka was found in
Appellant's vehicle) and that "I smoke one joint [marijuana cigarette] in the morning and
one at night." He also made conflicting statements at the hospital as to whether he had
smoked marijuana on the day of the fatal collision .
A laboratory test of a sample of Appellant's blood was negative for alcohol
content . However, a drug screen of Appellant's urine sample was positive for Valium,
Tylenol 3, and marijuana . The Commonwealth also had evidence that Appellant "had
the giggles" on the day of the collision and had left his work duties (stripping tobacco)
on numerous occasions that day for short visits to his automobile ; and that the known
effects of marijuana consumption include a feeling that everything is fine, a better
mood, talkativeness, a lessening of motor control, and altered judgment.
Appellant moved in limine, KRE 103(d), to suppress his admissions as to his
alcohol and marijuana habits on grounds that the statements were either inadmissible
character evidence, KRE 404(a), or inadmissible evidence of other crimes, wrongs, or
acts, KRE 404(b) . In fact, as correctly noted in the plurality opinion, ante , Appellant's
admissions constituted neither character evidence nor evidence of other crimes,
wrongs, or acts, but evidence of habit. In view of the laboratory test results, the trial
judge, in weighing probative value against the danger of undue prejudice, KRE 403,
sustained Appellant's motion to suppress the evidence of his admitted alcohol habit but
overruled the motion to suppress the evidence of his admitted marijuana habit.
Obviously, Appellant's admission that he smoked two marijuana cigarettes every
day, one in the morning and another at night, was probative of the Commonwealth's
theory of the case, especially in view of Appellant's conflicting statements to hospital
personnel as to whether he had, in fact, smoked marijuana on the morning of the
collision . Nevertheless, for various reasons expressed in three separate opinions, a
majority of this Court has concluded, at least in this case,' that we should retain our
100-year-ofd rule excluding, under all circumstances, admission of evidence of an
individual's habit as circumstantial proof of his/her conforming conduct on a specific
occasion and thereby maintain our status as the only jurisdiction in the United States
that does so.
I. HABIT EVIDENCE VS . CHARACTER EVIDENCE .
In recommending admission of habit evidence, as opposed to character
evidence, the Advisory Committee's Notes to Federal Rule of Evidence (FRE) 406
reiterated the oft-quoted paragraph from McCormick's treatise on the law of evidence:
Character and habit are close akin. Character is a generalized description
of one's disposition, or of one's disposition in respect to a general trait,
such as honesty, temperance, or peacefulness . "Habit," in modern usage,
both lay and psychological, is more specific . It describes one's regular
response to a repeated specific situation . If we speak of character for
care, we think of the person's tendency to act prudently in all the varying
situations of life, in business, family life, in handling automobiles and in
walking across the street. A habit, on the other hand, is the person's
regular practice of meeting a particular kind of situation with a specific
' In fact, the majority's claimed adherence to the common law rule excluding
habit evidence amounts only to lip service ; for, also today, the majority has rendered
Boagess v. Commonwealth , Ky., No. 2001-SC-0263-MR (January 23, 2003), an opinion
designated as "not to be published", penned by the author of the plurality opinion in this
case, holding that evidence that a deceased person had a "habit" of driving 45 to 55
miles per hour was not only admissible but so reliable that it could be "reasonably relied
upon by experts," KRE 703(a), in forming their expert opinions .
type of conduct, such as the habit of going down a particular stairway two
stairs at a time, or of giving the hand-signal for a left turn, or of alighting
from railway cars while they are moving . The doing of habitual acts may
become semi-automatic .
FRE 406 Advisory Committee's Note (1972) (quoting McCormick, Evidence § 162, at
340 [now see John W. Strong, 1 McCormick on Evidence § 195, at 584-85 (5th ed .
West 1999)]).
Both character evidence and habit evidence are offered as circumstantial
evidence of conforming conduct . The element of habit evidence that distinguishes it
from character evidence is the element of specificity, as opposed to mere disposition .
Thus, evidence that Appellant is a "drunkard" would be character evidence, whereas
evidence that he drinks "one-half to three-quarters of a gallon a day of vodka" is
evidence of a habit . See generally 29 Am .Jur.2d, Evidence § 391 (1994). The Advisory
Committee noted that "ja]greement is general that habit evidence is highly persuasive
of conduct on a particular occasion ." FRE 406 Advisory Committee's Note, supra
(emphasis added) . Again quoting McCormick:
Character may be thought of as the sum of one's habits though doubtless
it is more than this. But unquestionably the uniformity of one's response
to habit is far greater than the consistency with which one's conduct
conforms to character or disposition . Even though character comes in
only exceptionally as evidence of an act, surely any sensible man in
investigating whether X did a particular act would be greatly helped in his
inquiry by evidence as to whether he was in the habit of doing it .
II. PROOF OF HABIT .
The National Conference of Commissioners on Uniform State Laws promulgated
the first version of the Uniform Rules of Evidence (URE) in 1953. 13A Uniform State
Laws Annotated 3 (West 1986) . As work progressed on the Federal Rules of Evidence,
the Uniform Rules were redrafted with a view to conform to the Federal Rules so far as
practicable . Id . at 5 . The final version of the Uniform Rules was promulgated in August
1974 and recommended for adoption in all states. Id . at iii . URE 406 ("Habit ; Routine
Practice") provides :
(a) Admissibility . Evidence of the habit of a person or of the routine
practice of an organization, whether corroborated or not and regardless of
the presence of eyewitnesses, is relevant to prove that the conduct of the
person or organization on a particular occasion was in conformity with the
habit or routine practice .
(b) Method of proof. Habit or routine practice may be proved by
testimony in the form of an opinion or by specific instances of conduct
sufficient in number to warrant a finding that the habit existed or that the
practice was routine .
The Federal Rules of Evidence were adopted by Congress in 1975. Pub .L . 93595, § 1, Jan . 2, 1975, 88 Stat. 1932 . FRE 406 is identical to URE 406(a). However,
Congress did not adopt URE 406(b) and most jurisdictions that have adopted a version
of URE 406 have also omitted subsection (b).2 See Jack B . Weinstein and Margaret A.
Berger, 2 Weinstein's Evidence T 406[05] (Matthew Bender 1989) . In jurisdictions that
have adopted URE 406(a), but not URE 406(b), the method of proof of habit or routine
practice is determined on a case-by-case basis. Typically, it is established by testimony
of a knowledgeable witness that there exists such a habit or practice . John W . Strong,
1 McCormick on Evidence , supra , § 195, at n .20 . Of course, here, the proof was even
stronger since it consisted of the admission of Appellant, himself, the person most
knowledgeable of his own habits.
406 .
2 See note 5, infra, for a list of jurisdictions that have adopted a version of URE
If proof of habit is by specific instances of conduct,' there must be evidence of
enough such instances to establish the existence of a habit, and the circumstances
under which the habit is followed must be present at the time of the conduct sought to
be proved . Id . § 195, at n.22, 23 ; see also John Henry Wigmore, 2 Evidence § 375 (3d
ed . Little Brown & Co. 1940) . The elements of a habit are generally said to be (1)
regularity, (2) specificity, and (3) an involuntary or semiautomatic response . 29
Am .Jur .2d, Evidence § 393 (1994). The last element, however, does not require that
the response be reflexive or nonvolitional, 4 but only that it be uniform . Steinberg v.
Arcilla , 535 N .W .2d 444, 447 (Wis. Ct . App .) ("a person's 'regular response' need not
be 'semi-automatic' or 'virtually unconscious"' in order to be admissible) . "[A]dequacy of
sampling and uniformity of response are key factors ." FRE 406 Advisory Committee's
Note, supra ; Wright and Graham, supra, note 3, § 5233. The requirements for
admission of habit evidence were summarized as follows in the frequently cited case of
Wilson v. Volkswagen of America Inc. , 561 F .2d 494 (4th Cir . 1977) :
It is only when the examples offered to establish such pattern of conduct
or habit are "numerous enough to base an inference of systematic
conduct" and to establish "one's regular response to a repeated specific
situation" or, to use the language of a leading text, where they are
"sufficiently regular or the circumstances sufficiently similar to outweigh
the danger, if any, of prejudice and confusion," that they are admissible to
establish pattern or habit. In determining whether the examples are
"numerous enough" and "sufficiently regular," the key criteria are
"adequacy of sampling and uniformity of response," or, as an article cited
with approval in the note to Rule 406, Federal Rules of Evidence , puts it,
on the "adequacy of sampling" and the "ratio of reactions to situations ."
' One authority notes that "one could reasonably testify to having observed
habitual behavior, but character is almost always a matter of opinion ." Charles A.
Wright & Kenneth W. Graham, Jr., 22 Federal Practice and Procedure § 5233, at 354
(West 1978) .
4 But see Levin v. United States , 338 F.2d 265 (D.C. Cir. 1964), a case decided
before the adoption of the federal rules .
These criteria and this method of balancing naturally follow from the
definition of habit itself as stated in the Model Code of Evidence: "Habit
means a course of behavior of a person regularly repeated in like
circumstances ."
Id . at 511 (citations omitted). The court went on to explain that "ratio of reactions to
situations" means a "comparison of the number of instances in which any such conduct
occurs with the number in which no such conduct took place ." Id. at 512 .
Thus, in United States Football Leaaue v. National Football League , 842 F .2d
1335 (2d Cir. 1988), evidence that the National Football League disregarded antitrust
advice three or four times over a twenty-year period was insufficient to prove a pattern
of behavior amounting to habit, id . at 1373 ; in Weissenberger v. Senger, 381 N.W.2d
187 (N .D . 1986), a brother of a deceased motorist was precluded from testifying that
the deceased, who was reported to have been driving over the center line at the time of
the fatal collision, had a habit of driving on the extreme right side of the road, because
the brother was not shown to have observed the decedent's driving habits with sufficient
frequency to be able to testify that such conduct was habitual, id . at 191 ; and in Waldon
v. Longview , 855 S.W.2d 875 (Tex . App. 1993), three prior similar accidents over a sixyear period were held insufficient to establish habit. Id. at 879 .
Specifically with reference to intemperate habits, it was held in Reyes v. Missouri
Pacific R. Co . , 589 F .2d 791 (5th Cir. 1979), that evidence of four prior convictions of
public intoxication was insufficient evidence of habit to be probative of intoxication on a
given occasion . Id . at 794 . However, in Loughan v. Firestone Tire & Rubber Co. , 749
F.2d 1519 (11th Cir. 1985), evidence from three sources, including the plaintiff, himself,
that he routinely kept a cooler of beer in his truck during working hours, regularly
consumed alcohol during working hours, and "normally" had something to drink in the
early morning hours was sufficient evidence of habit to be probative of his intoxication
at the time of his on-the-job injury . Id . a t 1524. And in Keltner v. Ford Motor Co. , 748
F .2d 1265 (8th Cir. 1984), evidence that the plaintiff regularly drank a six-pack of beer
four nights a week was held to be sufficient evidence of habitual conduct to be
probative of his intoxication on the occasion of his injury . Id . at 1269 .
There is authority for the proposition that, in a criminal case, evidence of a
"habit" of committing the charged offense is inadmissible because "[e]vidence of these
habits would be identical to the kind of evidence that is the target of the general rule
against character evidence ." United States v. Mascio, 774 F .2d 219, 222 n .5 (7th Cir.
1985) (quoting Edward W. Cleary, McCormick on Evidence § 195, at 574 (3d ed . West
1984)) . As applied to the facts of this case, that would mean that the prosecution could
not introduce evidence under the guise of "habit" that Appellant had caused other fatal
vehicle collisions in the past. Such evidence would be admissible only if it satisfied the
requirements of KRE 404(b)(1) or (2). For other applications of the "habit" rule, see
generally John P. Ludington, Annotation, Habit or Routine Practice Evidence Under
Uniform Evidence Rule 406, 64 ALR 4th 567 (1988); George H . Genzel, Annotation,
Admissibility of Evidence of Habit, Customary Behavior, or Reputation as to Care of
Motor Vehicle Driver or Occupant, on Question of His Care at Time of Occurrence
Giving Rise to His Injury or Death , 29 ALR 3d 791 (1970) .
111. HABIT EVIDENCE IN OTHER JURISDICTIONS .
In addition to the enactment by Congress of FRE 406, forty-three of the fifty
states have adopted URE 406(a) either by rule or by statute . Five additional states
5
Alabama : AIa.R.Evid .406 ;
Alaska : Alaska.R.Evid .406;
Arizona: Ariz.R.Evid .406;
Arkansas : Ark.R.Evid .406;
California : Cal . Evid . Code § 1105;
Colorado: Colo.R.Evid .406;
Connecticut : Conn . Code of Evid . § 4-6;
Delaware : Del .R.Evid .406 ;
Hawaii : Haw.R.Evid .406;
Idaho : Idaho .R .Evid . 406 ;
Indiana: Ind .R.Evid . 406;
Iowa : Iowa Code Ann. Rule 5.406 ;
Kansas : Kan. Stat. Ann. § 60-449 ;
Louisiana : La. Code Evid. Ann., Art. 406;
Maine: Me .R .Evid .406 ;
Maryland : Md . R. Proc. 5-406 ;
Michigan : Mich.R.Evid .406;
Minnesota: 50 Minn . Stat. Ann ., R.Evid. 406 ;
Mississippi : Miss.R.Evid .406;
Montana : Mont.R .Evid .406;
Nebraska : Neb. Rev. Stat. § 27-406 ;
Nevada : Nev. Rev. Stat. § 48 .059;
New Hampshire : N.H.R.Evid . 406;
New Jersey: N .J .R .Evid . 406 ;
New Mexico : N .M.R.Evid . 11-40 6 ;
North Carolina : N.C.R.Evid. 406;
North Dakota : N .D .R .Evid . 406;
Ohio: Ohio .R.Evid . 406;
Oklahoma : 12 Okla . Stat. Ann . § 2406;
Oregon : Or. Evid . Code, Rule 406;
Pennsylvania : Pa .R.Evid .406 ;
Rhode Island: R.I .R.Ev. 406;
South Carolina : S.C.R.Evid. 406 ;
South Dakota : S.D .R.Evid . § 19-12-8 (Rule 406) ;
Tennessee : Tenn .R .Evid .406;
Texas : Tex . R . Evid. 406;
Utah: Utah .R .Evid .406;
Vermont: Vt . R . Evid . 406 ;
Virginia : Va . Code Ann . § 8 .01-397 .1 ;
Washington: Wash .R.Ev., ER 406 ;
have common law rules admitting evidence of habit to prove conduct with some
variation . Georgia and New York admit habit evidence by common law under
circumstances virtually identical to those described in URE 406(a) . Sams v. Gay , 288
S .E .2d 822, 824 (Ga . App . 1982); Halloran v. Virginia Chem ., Inc . , 361 N .E .2d 991, 995
(N.Y. 1977) . Florida admits evidence of habit by common law only if the occurrence of
the conforming conduct is corroborated by other evidence . Nationwide Mut. Ins . Co . v.
Jones , 414 So .2d 1169, 1171 (Fla . Ct. App. 1982).6 (Note that the instant case would
satisfy Florida law because the evidence of Appellant's marijuana habit was
circumstantially corroborated by the positive drug screen, the evidence of his demeanor
and conduct prior to the accident, his statement to a hospital medical technician that "I
haven't smoked any pot since this morning " (emphasis added), and the treating
physician's entry in the medical records that Appellant "[a]dmits to one joint this morning
(emphasis added) .") Illinois admits habit evidence only when there is no eyewitness
testimony with respect to the conduct at issue. Grewe v. West Wash. Ctv. , 707 N .E .2d
739, 744-45 (III . App. 1999).' Missouri courts have admitted habit evidence, but the
precise boundaries of the rule remain unclear. Hawkins v. Whittenberg, 587 S.W .2d
West Virginia : W.Va .R .Evid . 406;
Wisconsin : Wis. Stat . Ann . § 904 .06;
Wyoming : Wyo .R.Evid .406 .
6
URE 406(a) permits evidence of habit to prove conduct "whether corroborated
or not ." Florida has adopted the "routine practice" provision, but not the "habit"
provision, of URE 406(x). Fla. Stat . § 90 .406 . A leading authority on Florida evidence
law has opined that prior cases allowing admission of evidence of the habit of an
individual, if corroborated by other evidence of the occurrence of the conforming
conduct, were not "displaced" by the adoption of the statutory provision and are "still
good law." Charles W. Erhardt, Florida Evidence § 406.1, at 158 (2d ed . 1984) .
' URE 406(a) permits evidence of habit "regardless of the presence of
eyewitnesses ." Note that other than Appellant, there were no surviving eyewitnesses to
the fatal collision in this case.
- 1 0-
358, 363-64 (Mo .App . 1979) (discussing same). Nevertheless, Missouri follows Illinois
(at a minimum) and admits habit evidence in the absence of eyewitness testimony .
Gerhard v. Terminal R. Ass'n of St. Louis, 299 S .W .2d 866, 872 (Mo. 1957) . See also
State v. Hembv, 63 S .W .3d 265, 269 & n.2 (Mo .App . 2001) (rejecting habit evidence
when based on only two prior experiences and noting that the issue has been
addressed rarely in Missouri) .
Except for Kentucky, Massachusetts is the only jurisdiction that purports to
preclude evidence of habit to prove conforming conduct .
For the purpose of proving that one has or has not done a particular act, it
is not competent to show that he has or has not been in the habit of doing
other similar acts .
Figueiredo v. Hamill , 431 N .E .2d 231, 232 (Mass. 1982) (quoting Davidson v .
Massachusetts Cas. Ins. Co. , 89 N.E .2d 201, 205 (1949). Nevertheless, the
Massachusetts Supreme Court has clarified that habit evidence is not inadmissible in all
circumstances .
Massachusetts draws a distinction between evidence of personal habit
and evidence of business habit or custom . . . . [E]vidence of business
habits or customs is admissible to prove that an act was performed in
accordance with the habit. For example, this court has upheld the
admission of evidence of business habits or customs to prove that a letter
had been sent, that an insurance application had not been blank when
approved, that the police would have impounded money if found in a
fugitive's possession, and that goods unaccompanied with a receipt had
not been paid for.
Palinkas v. Bennett, 620 N .E .2d 775, 777 (Mass . 1993) (internal citations omitted) .
And in O'Connor v. SmithKline Bio-Science Laboratories Inc., 631 N .E .2d 1018 (Mass.
App. Ct . 1994), the Appeals Court of Massachusetts held that a laboratory technician
could testify to her "usual practice" of noting a deviation in a urine sample and the
significance of the absence of such a notation on the chain of custody form that she
signed, id . at 1019, carefully (and somewhat dubiously) characterizing such "usual
practice" evidence as admissible evidence of a "business custom" rather than
inadmissible evidence of an "individual habit." Id . at 1021 . Massachusetts also has a
statute that admits evidence of a decedent's habits in an action brought against the
decedent's personal representative to rebut evidence of statements made or
documents drafted by the decedent when living. Mass. Gen . Laws, ch . 233, § 66 .
Thus, Kentucky is the only jurisdiction that precludes, under all circumstances,
admission of evidence of individual habit or of the routine practice of an organization as
circumstantial evidence of conforming conduct on a specific occasion .
IV. HABIT EVIDENCE IN KENTUCKY.
All of the cases applying Kentucky's common law rule of exclusion are more than
fifty years old
8
and many involved what is more correctly categorized as character
evidence, not habit evidence . Dawson v. Shannon , 225 Ky. 635, 9 S.W .2d 998, 998-99
(1928) ("habit" of drinking); Louisville & N . R. Co. v. Adams' Adm'r, 205 Ky. 203, 265
S.W . 623, 627 (1924) (habit of being a "careful and prudent driver"); City of
Madisonville v. Stewart, Ky., 121 S .W . 421, 423 (1909) ("habit" of drunkenness);
Louisville & N . R. Co. v. Taylor's Adm'r, Ky ., 104 S .W . 776, 778 (1907) ("custom" of
8 The plurality opinion, ante , incorrectly cites the more recent case of Johnson v.
Commonwealth, Ky., 885 S.W.2d 951 (1994), as approving the exclusion of habit
evidence . Slip op ., at 5 . Johnson merely states (correctly but not approvingly) that
"Kentucky's high court has consistently ruled against the admission of habit evidence ."
Id . at 953 . The issue in Johnson was not whether evidence of a habit of an individual
was admissible to prove the same individual's conduct on another occasion but whether
evidence of a habit of a class of persons, i.e. , coal truck drivers, was admissible as
circumstantial evidence of the conduct of another coal truck driver on another occasion
-- and Johnson correctly held that it was not. Id . ; see also Miller v. Commonwealth , Ky.,
77 S .W .3d 566, 572 (2002).
- 1 2-
reckless driving). Nevertheless, there are other cases where the excluded evidence
was properly treated as evidence of habit. Cincinnati, N .O. & T.P. Ry. Co . v . Hare's
Adm'x, 297 Ky. 5, 178 S .W.2d 835, 838 (1944) (evidence that the deceased driver
always looked both ways before entering a railroad crossing, used his lowest gear, and
always crossed slowly), overruled on other grounds, Louisville & N. R. Co. v. Fisher ,
Ky., 357 S .W.2d 683 (1962) ; Louisville & N . R. Co. v. Gardner's Adm'r, 140 Ky. 772,
131 S .W . 787, 788 (1910) (evidence that the deceased had never been known to be
intoxicated) ; Lexington Ry. Co. v. Herring , Ky., 96 S .W . 558, 560-61 (1906) (evidence
that the plaintiff habitually boarded and departed street cars while they were still in
motion) ; Chesapeake & O . Ry. Co . v. Riddle's Adm'r, Ky., 72 S.W . 22, 23 (1903)
(evidence that the plaintiff had never taken an alcoholic drink in his life).9
The evidence excluded in those cases would satisfy today's definition of relevant
evidence, i .e . , "evidence having any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less probable than
it would be without the evidence ." KRE 401 . Under KRE 402, all relevant evidence is
admissible unless excluded by "the Constitutions of the United States and the
Commonwealth of Kentucky, by acts of the General Assembly of the Commonwealth of
Kentucky, by these rules, or by other rules adopted by the Supreme Court of Kentucky ."
9 It was also stated in Jones v. Commonwealth , 303 Ky. 666, 198 S.W.2d 969
(1947), that "[i]t is not competent to prove a habit or pre-disposition to commit the
particular crime or to show that the accused is a criminal generally ." Id . a t 970 .
However, as in Mascio , supra , the evidence at issue in Jones was clearly that which
today is the subject of KRE 404(b), i .e., evidence in a trial for uttering a forged check
that the defendant had, on three prior occasions, uttered other forged checks with
different payors and payees at different places and different times -- evidence arguably
admissible to prove intent under KRE 404(b)(1), but insufficient to establish a habit for
the purpose of proving conforming conduct .
-1 3-
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Evidence Rules Review Commission, KRE 1103) voted to adopt proposed KRE 406 .
Only this Court disagreed . However, the 1991 Court did not amend proposed KRE 406
to codify the existing common law. The significance of that fact is exemplified by the
numerous instances where the Court did amend or even rewrite other proposed rules to
codify pre-existing law or, in some instances, to modify both the proposed rule and preexisting law. See 1992 Ky. Acts, ch . 324 for the 1992 amendments of the proposed
rules. With very few exceptions, those amendments were initiated by the 1991 Court,
not the 1992 General Assembly. The following are only a few examples of those
amendments (deleted language indicated by strikeout; added language in brackets) :
The Court amended proposed KRE 103(a)(1), pertaining to preservation of error,
to insert language from pre-existing procedural rules, i .e . , CR 46 and RCr 9.22, that
required an objecting party to state the specific ground for objection only if requested by
the court, viz:
In case the ruling is one admitting evidence, a timely objection or
motion to strike appears of record [and upon request of the court] stating
the specific ground of objection, if the specific ground was not apparent
from the context .
1992 Ky. Acts, ch . 324 § 1(a).
The Court also amended proposed KRE 403 to limit the circumstances under
which relevant evidence could be excluded, viz:
Although relevant, evidence may be excluded if its probative value
is substantially outweighed by the danger of tinfatr [undue] prejudice,
confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste-ef-time, or needless presentation of cumulative
evidence .
Id . § 3.
The Court amended proposed KRE 407, pertaining to subsequent remedial
measures, to ensure that the rule would not apply to criminal or products liability cases,
viz:
When, after an event, measures are taken which, if taken
previously, would have made an injury or harm allegedly caused by the
event less likely to occur, evidence of the subsequent measures is not
in connection with the
admissible to prove negligence
event. This rule does not require the exclusion of evidence of subsequent
measures [in products liability cases or] when offered for another purpose,
such as proving ownership, control, or feasibility of precautionary
measures, if controverted, or impeachment .
Id . § 6.
The Court essentially rewrote proposed KRE 504, the husband-wife privilege, to
completely change its intended meaning, viz :
. The spouse of an
(a)
Spousal testimony'
accuseet [a party] has a privilege to refuse to testify against the aeeused
spouse [party] as to events occurring after the date of their marriage .
[(b) Marital communications . An individual has a privilege to refuse to
testify and to prevent another from testifying to any confidential
communication made by the individual to his or her spouse during the
marriage . The privilege may be asserted only by the individual holding the
privilege or by the holder's guardian, conservator, or personal
representative . A communication is confidential if it is made privately by
an individual to his or her spouse and is not intended for disclosure to any
other person .]
Id . § 9(1), (2) .
And the Court substituted Kentucky's pre-existing "Rule in Queen Caroline's
Case," Fisher v. Duckworth , Ky., 738 S.W.2d 810, 815 (1987), i .e . , CR 43.08, with
respect to laying the foundation for admission of a witness's prior statement, for
proposed KRE 613, which would have adopted the more liberal federal rule, viz:
(a) Examining witness concerning prior statement .
[Before other evidence can be offered of
the witness having made at another time a different statement, he must
be inquired of concerning it, with the circumstances of time, place, and
persons present, as correctly as the examining party can present them;
and, if it be in writing, it must be shown to the witness, with the opportunity
to explain it. The court may allow such evidence to be introduced when it
is impossible to comply with this rule because of the absence at the trial or
hearing of the witness sought to be contradicted, and when the court finds
that the impeaching party has acted in good faith .]
This
provision does not apply to admissions of a party-opponent as defined in
KRE 801 A.
1992 Ky. Acts, ch. 324, § 16(1), (2).
The 1991 Court could also have amended proposed KRE 406 so as to codify our
existing common law rule excluding evidence of habit or routine practice merely by
changing one word, e. Q . :
Evidence of habit of a person or of the routine practice of an
organization, whether .corroborated or not and regardless of the presence
of eyewitnesses, is refer [inadmissible] to prove that the conduct of the
person or organization on a particular occasion was in conformity with the
habit or routine practice .
However, it chose not to do so .
Except for Rules 401 and 402, the rules of relevancy in Article IV of the Kentucky
Rules of Evidence, if not rules of exclusion, are certainly rules of limitation, Huddleston
v. United States , 485 U .S . 681, 687, 108 S .Ct. 1496, 1500, 99 L .Ed .2d 771 (1988), i .e . ,
exceptions to the general rule of admissibility of relevant evidence enunciated in Rule
402. URE 406(x), however, is a rule of admissibility, not of exclusion or limitation, and
its adoption as FRE 406 obviously was intended to emphasize that the previous
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common law rule of exclusion then being followed in some jurisdictions, e .g_, Levin v.
United States, supra , note 3, had been abrogated by the adoption of FRE 402 .
Proposed KRE 406 would have accomplished the same purpose. However, a decision
not to adopt a rule specifically abrogating the common law does not equate to a
decision to adopt a rule codifying the common law, especially where, as here, the
common law rule was apparently abrogated by another adopted Rule, i .e ., KRE 402 .
"[W]hen there is an adopted Rule of Evidence that speaks to the contested issue, the
adopted Rule occupies the field and supersedes the former common law
interpretation ." Garrett. supra , at 14, citing Daubert v. Merrell Dow Pharmaceuticals
Inc. , 509 U .S. 579, 588, 113 S.Ct . 2786, 2794, 125 L.Ed .2d 469 (1993). However,
where there is no adopted Rule, the issue either remains open for common law
development, Stringer v. Commonwealth , Ky., 956 S .W.2d 883, 891-92 (1997), or is
considered subsumed in the general rule of inclusion, i.e . , Rule 402 . United States v.
Abel , 469 U .S . 45, 50-51, 105 S.Ct. 465, 468, 83 L.Ed .2d 450 (1984) (although no
specific federal rule speaks to the inclusion of evidence of bias for impeachment
purposes, such is admissible under FRE 402) .
By simply refusing to approve proposed KRE 406, as opposed to amending it to
codify the common law rule of exclusion, the 1991 Court may have recognized that
KRE 406 was redundant in light of KRE 402 ; or, more likely, it may have intended to
simply leave the door open for future common law development in this area of the law."
If faced with the case sub judice , a majority of the 1991 Court may well have decided it
" See Erhardt, supra, note 6, opining that Florida's enactment of a statute
adopting the "routine practice" provision, but not the "habit" provision, of URE 406(1),
did not affect Florida's common law rule admitting evidence of habit if corroborated by
other evidence .
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the same way that the plurality opinion, ante , now decides it -- by reaffirming our
antiquated common law precedents . However, Justice Leibson, a member of the 1991
Court, also famously wrote :
The common law is not a stagnant pool, but a moving stream . It seeks to
purify itself as it flows through time . The common law is our responsibility;
the child of the courts . We are responsible for its direction .
Hilen v. Hays, Ky., 673 S .W .2d 713, 717 (1984) (citations omitted) .
If the majority of the members of this Court now believe that the time has come
to reconsider the admissibility of habit evidence and depart from the fallacy of our old
cases, the 1991 Court left the door open to do so. Professor Lawson queried whether
the adoption of the Kentucky Rules of Evidence abrogated all common law evidentiary
rules . See Robert G . Lawson, Interpretation of the Kentucky Rules of Evidence -- What
Happened to the Common Law?, 87 Ky. L.J. 517 (1998-99) .' 2 If so, then this case is
governed by KRE 402 and we should hold that habit evidence, if relevant and
competent, is admissible . If not, and that obviously is the premise of the plurality
opinion, ante , then this Court has the authority to change the direction of the common
law by overruling those precedents that are inconsistent with modern (and virtually
unanimous) legal thought. Cf. Stringer , supra , at 891-92 (discarding our prior common
law rule excluding "ultimate issue" testimony in favor of the modern majority rule).
VI. ADMISSIBILITY OF HABIT EVIDENCE IN THIS CASE .
Like any evidence, evidence of habit or routine practice is admissible only if
relevant to a fact in issue . Compare Gregory v. State , 657 S .W.2d 570, 571 (Ark . Ct .
Professor Cleary, the Reporter for the FRE Advisory Committee, wrote that
"under the Federal Rules, no common law of evidence remains ." Edward W . Cleary,
Preliminary Notes on Reading the Rules of Evidence, 57 Neb . L. Rev. 908, 915 (1978).
12
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App. 1983) (in a trial for receiving stolen property, marijuana habit of witness who
allegedly sold stolen property to defendant was not relevant to prove any issue in the
case) . Thus, whether Appellant smoked marijuana on the morning of the collision
would not have been relevant to prove that he drove past the stop sign and into the
intersection at Bloyds Crossing without slackening his speed . However, it was relevant
to prove the element of a criminal mens rea of wantonness or recklessness, i .e . , to
prove why he ran the stop sign and drove into the intersection without slackening his
speed . The Commonwealth's theory was that Appellant had smoked marijuana on the
morning of December 12, 1997, and that his operation of a motor vehicle under the
influence of the combined effects of marijuana, Valium, and Tylenol 3 amounted to
wanton or reckless conduct. His admitted habit of smoking two marijuana cigarettes
every day, one in the morning and another at night, was highly probative of that theory .
The instances of past conduct ("every morning") were "numerous enough to
base an inference of systematic conduct." Wilson v. Volkswagen of America . Inc. , 561
F.2d 494, 511 (4th Cir. 1977) (quotation omitted) . And since the habit was identified by
occurrence, e .g ., "every morning," as opposed to circumstance, etc ., "when stripping
tobacco," there is no issue here with respect to similarity of circumstances or ratio of
reactions to situations . Nor is there any issue here as to either competency or the
knowledge of the person reporting the habit. The evidence was in the form of an
admission by Appellant, himself, KRE 801A(b)(1), who was the person most
knowledgeable of his own habits .
Even if relevant and competent, evidence of a habit or routine practice, like other
relevant evidence, is subject to exclusion under KRE 403 if its probative value is
substantially outweighed by the danger of undue prejudice . The trial judge concluded
that the probative value of the evidence of Appellant's alcohol habit was substantially
outweighed by its prejudicial effect (because his blood tested negative for alcohol
content) but that such was not the case with respect to the evidence of his marijuana
habit (because his urine tested positive for marijuana and because of his prior
conflicting statements with respect to whether he had or had not smoked marijuana on
the day of the accident) . I discern no abuse of discretion with respect to either of these
KRE 403 rulings . English , supra , note 13, at 945 .
Accordingly, I dissent and would affirm the judgment of the Green Circuit Court in
all respects .
Graves and Wintersheimer, JJ ., join this dissenting opinion .
The plurality opinion, ante , seems to assert that all evidence of habit or
routine practice is automatically excluded under KRE 403. That assertion turns KRE
403 on its head; for the premise of the rule is that evidence that is otherwise relevant
and admissible can be excluded if the trial judge, in his/her discretion , determines that it
should be excluded because its prejudicial effect substantially outweighs its probative
value. Commonwealth v . English, Ky., 993 S.W .2d 941, 945 (1999). Here, the majority
of the Court holds that evidence of habit or routine practice is always inadmissible , thus,
KRE 403 does not come into play.
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