DAVID CHRISTIAN V. COMMONWEALTH OF KENTUCKY
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2004-SC-1055-MR
DAVID CHRISTIAN
V.
APPELLANT
APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE CHARLES W . BOTELER, JR ., JUDGE
2003-CR-0252
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, David Christian, was convicted in the Hopkins Circuit Court of murder
and sentenced to life imprisonment . He appeals to this Court as a matter of right
claiming that three errors warrant reversal of his conviction : (1) exclusion of testimony
by defense expert, Dr. Mathias Stricherz; (2) the trial court's refusal to instruct the jury
on voluntary intoxication ; and (3) improper testimony by the Commonwealth's ballistics
expert, Scott Boyle . Finding no error, we affirm Appellant's conviction and sentence .
Mid-morning on June 24, 2003, Jeff Webster and Michael Vincent, both
employees of the Carhartt Distribution Plant, were returning from a break when they
noticed a man laying face down next to a small lake located behind the plant.
Concerned, Webster and Vincent approached the unconscious man and observed that
he had blood on the side of his head . The men immediately drove back to the plant
and directed the office receptionist to call 911 . Vincent and a member of the
maintenance staff, Tom Hampton, returned to the lake . After confirming that the man
was bleeding and unresponsive, Vincent returned to the plant to make sure that the
authorities had been called .
While Hampton was waiting for EMS to arrive, Appellant drove up and asked
Hampton if the man was hurt. When Hampton responded that he was, Appellant stated
that he had been fishing with the man earlier that morning and identified him as James
Williams .
At that point, EMS workers Paula Jones and Kevin Carlisle arrived and
determined that Williams had a gunshot wound to the back of his head and was
deceased. Appellant told Jones and Carlisle that he had been fishing with Williams
earlier that morning but had not seen him since approximately 9 :30 a .m. Carlisle noted,
however, that there was no fishing equipment near Williams' body. Further, both
Carlisle and Jones observed that Appellant acted "calm" and "normal" while talking to
them.
Eventually, law enforcement personnel began to arrive . Hopkins County Sheriffs
Deputies Elaine Yeager and Jeremy Crick interviewed bystanders, including Appellant .
Appellant again claimed that he had ended his work shift around 7:00 a .m . and decided
to go down to the lake to fish for awhile . Appellant stated that Williams drove up,
walked down to the lake, and briefly spoke with him . Appellant said that he left the lake
around 9:00 a .m., went to eat breakfast, and later returned to find Hampton standing
with Williams' body. Yeager and Crick likewise noted that Appellant was "exceptionally
calm" and did not appear intoxicated .
At some point, Appellant gave police permission to pat him down and search his
vehicle. Williams' credit card was found in Appellant's pants pocket. Appellant initially
stated that he did not know how he got the credit card ; then he claimed Williams gave it
to him; and finally he said that Tom Hampton had handed it to him before the EMS
personnel arrived . Williams' fishing gear was subsequently discovered in Appellant's
car.
Appellant was thereafter taken to the police post where he gave a taped
statement to Kentucky State Police Detective Ben Walcott. Appellant stated that he
was fishing when Williams drove up, got out of his vehicle, and removed some fishing
equipment . Appellant said that Williams then walked over to Appellant's vehicle and
started looking around . When Appellant yelled at Williams, he responded angrily, and
then picked up his equipment and walked down to the lake. Appellant then returned to
his own vehicle. As he was loading his gear, Appellant claimed that Williams fired two
shots at him . Appellant retrieved his gun from his car, walked to the side of the road,
and fired one shot that apparently struck Williams . Appellant then took Williams' fishing
tackle, wallet, and gun . He threw Williams' car keys in the lake and thereafter left the
scene . On his way home, Appellant said he tossed Williams' wallet out on the side of
the road and then went to the Madisonville Waste Management Station and dropped
Williams' gun into the spillway . Appellant said he drove home and placed his own gun
in a drawer in his bedroom . While at home, he claimed to have fired a hunting rifle to
adjust the sight. After eating breakfast, Appellant returned to the lake where the
shooting had occurred . Appellant specifically denied being under the influence of any
alcohol or drugs .
Despite an extensive search, neither Williams' gun nor his wallet was ever
located . Eventually, Appellant was indicted in the Hopkins Circuit Court for murder and
first-degree robbery.
Appellant was tried in September 2004. The defense called numerous Carhartt
employees who testified that Appellant was known to often use over-the-counter
stimulants and caffeine to stay awake while working the third shift at the plant.
However, none of the employees had observed Appellant consume any such products
during the shift preceding the crime, nor did anyone testify that they observed anything
unusual about Appellant's demeanor on the morning of the shooting .
Appellant took the stand in his own defense and testified that he frequently took
ephedrine supplements to give him energy. He admitted that the supplements
sometimes made him excited and jittery . Appellant stated that during his shift on June
23, 2003, he took "Ephedra Plus" and "Stackers" and that he also consumed coffee
and Mountain Dew. He testified that despite consuming the substances, he was
"wearing down" at the end of his shift .
Appellant's testimony as to what transpired at the lake differed from his
statement to police . Appellant explained that he was fishing at the lake when Williams
arrived, removed his fishing gear from his car, and then walked over to Appellant's car
to look around . Although Appellant said that he yelled at Williams, he conceded that
the two men never argued and that he was never in fear of Williams .
Appellant further testified that as he was loading his gear into his car, he heard
what sounded like two gunshots. He retrieved his gun from his car and walked to the
side of the road . Appellant claimed that he observed Williams with his arm outstretched
holding what Appellant thought was a gun . Appellant then admitted to intentionally
shooting Williams . Thereafter, Appellant claimed for the first time that when he walked
over to Williams' body, he discovered that Williams did not, in fact, have a gun.
Appellant further admitted that he took Williams' fishing gear and wallet.
Ultimately, Appellant confessed that he lied to police about Williams having a
gun because he was scared and thought it would help him out. Appellant further stated
that he was not excited or jittery at the time of the shooting, but rather was tired from
the supplements having worn off.
At the close of the evidence, the jury found Appellant guilty of murder and
acquitted him of first-degree robbery. Appellant was sentenced to life imprisonment.
This appeal ensued . Additional facts are set forth as necessary.
I.
Appellant's first allegation of error concerns the trial court's refusal to allow the
testimony of defense expert, Dr. Mathias Stricherz. The defense sought to offer Dr.
Stricherz's opinion that Appellant was suffering from ephedrine intoxication at the time
of the shooting .
On September 13, 2004, the trial court conducted an evidentiary hearing
pursuant to KRE 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc . , 509 U .S . 579,
113 S . Ct . 2786, 125 L. Ed . 2d 469 (1993) . Dr. Stricherz testified that he is a
psychologist, with a Doctorate of Education in counselor education, a Masters of
Education in Guidance and Counseling, and a Bachelor of Arts in Behavioral Sciences.
Dr. Stricherz was employed as a Drug and Alcohol Counselor and the Director of
Student Counseling at the University of South Dakota .
Dr. Stricherz testified that he had training and education on the effects of overthe-counter ephedrine supplements, such as "Stackers" and "Ephedra Plus." Dr.
Stricherz noted that he had done extensive reading on the subject of ephedrine and
had counseled people that showed signs of ephedrine-induced "psychotic episodes ."
Dr. Stricherz reviewed a scientific study referred to as the "Rand Study," which
indicated that the over-the-counter supplements can cause physical and psychiatric
problems . Dr. Stricherz testified that he reviewed Appellant's history of consuming
these supplements and offered the following opinion :
[I]t would seem to me, based on what [Appellant] told
me, that a probable diagnosis, based on his use of
"Stackers" the night before [the shooting] (sic). The number
that he used, the amount of caffeinated beverages that he
used, and all of the other substances that are likely in the
"Stackers" product, he likely would have had ephedrine
intoxication, as well as an ongoing diagnosis of ephedrine
dependence, within that twelve month period .
On cross-examination, Dr. Stricherz conceded that his doctoral degree and
expertise was in education, not medicine or toxicology . Further, he admitted that he
had never published any articles on ephedrine nor had ever testified at a trial regarding
the effects of such . Dr. Stricherz acknowledged that the so-called ephedrine "psychotic
episodes" were generally the result of a combination of factors, and that the effects of
ephedrine were, in large part, dependent upon not only the dosage amount, but also an
individual's tolerance to the substance .
The Commonwealth thereafter called Dr. Mark Levon, a forensic pathologist,
who testified that that the symptoms associated with ephedrine use would depend on
the dosage; that ephedrine would not cause a person to be calm ; and that the amount
of ephedrine in over-the-counter products varies, with some having no level of the
substance at all. Dr. Levon further stated that he was not aware of any scientific study
that found ephedrine to be the sole cause of a psychotic episode.
The trial court initially ruled that Dr. Stricherz could not testify as to whether
Appellant was intoxicated as a result of ingesting over-the-counter ephedrine
substances at the time he shot Williams . The court subsequently clarified its ruling,
noting that Dr. Stricherz would not be precluded from testifying generally about the
potential effects of the over-the-counter substances on the human body. Nevertheless,
the trial court later reversed that ruling, concluding that science did not support an
expert opinion regarding ephedrine intoxication, and further that Dr. Stricherz was not
qualified to testify on the subject . His testimony was subsequently included in the
record by avowal .
This Court has held that abuse of discretion is the proper standard of review of a
trial court's ruling on the admissibility of expert testimony . Goodyear Tire and Rubber
Co . v. Thompson , 11 S.W .3d 575, 577-78 (Ky. 2000); Farmland Mutual Insurance Co.
v. Johnson, 36 S .W .3d 368, 378 (Ky. 2000); see also General Electric Co . v. Joiner,
522 U .S . 136, 143, 118 S . Ct. 512, 518, 139 L. Ed. 2d 508 (1997) . The test for abuse
of discretion is whether the trial court's decision was arbitrary, unreasonable, unfair or
unsupported by sound legal principles . Goodyear, 11 S.W.3d at 581 . In Sand Hill
Energy, Inc. v. Ford Motor Co., 83 S .W .3d 483, 489 (Ky. 2002), vacated on other
grounds by Ford Motor Co. v. Smith, 538 U.S . 1028, 123 S . Ct. 2072, 155 L. Ed . 2d
1056 (2003), we noted the considerable breadth of discretion possessed by trial courts
in performing their gate-keeping function under KRE 702, and emphasized that a
reviewing court must "give great deference to the trial court's ruling and reverse only in
circumstances of clear abuse."
In Stringer v. Commonwealth , 956 S .W .2d 883, 891 (Ky. 1997), we noted that
expert opinion evidence is admissible so long as : (1) the witness is qualified to render
an opinion on the subject matter; (2) the subject matter satisfies Daubert; (3) the
subject matter is relevant ; and (4) the expert's opinion will assist the trier of fact .
Despite Appellant's exaltation of Dr. Stricherz's credentials, he clearly was not qualified
to render an opinion on the theory of ephedrine intoxication . As previously noted, Dr.
Stricherz is a psychologist, not an expert in the fields of medicine, toxicology, or
pharmacology. Consequently, he was not qualified to render an opinion on the effects
of ephedrine on the human body. Thus, Appellant failed to satisfy the first prong of
Strinqer .
Notwithstanding Dr . Stricherz's qualifications, the subject matter of his testimony
simply does not satisfy the standard set forth in Daubert v. Merrell Dow
Pharmaceuticals, Inc . , supra . This Court first adopted the Daubert analysis in Mitchell
v. Commonwealth, 908 S .W .2d 100 (Ky. 1995) .' In Goodyear, supra, we followed
Kumho Tire Company, Ltd. v. Carmichael, 526 U .S . 137, 119 S . Ct. 1167, 143 L. Ed. 2d
238 (1999), and held that the Daubert analysis applies to all expert testimony, not just
scientific testimony. Thus, when faced with a proffer of expert testimony under KRE
702, the trial court's task is to determine whether the expert is proposing to testify to
scientific, technical, or other specialized knowledge that will assist the trier of fact to
understand or determine a fact in issue . Daubert, 509 U .S . at 589-92, 113 -S . Ct . at
2794-96 ; Goodyear, 11 S .W .3d at 578 . This requires the trial court to assess whether
the proffered testimony is both relevant and reliable . Id.
The consideration of relevance has been described as one of fit, while the
consideration of reliability entails an "assessment into the validity of the reasoning and
methodology upon which the expert testimony is based ." Id . The central inquiry into
1 Mitchell was overruled in Fugate v. Commonwealth, 993 S .W.2d 931 (Ky. 1999), but
only as to the case-specific holding in Mitchell that the admissibility of DNA evidence in
a criminal case should be determined on a case-by-case basis . Fu ate held that the
PCR and RFLP methods of DNA analysis are so well accepted that they are
presumptively admissible under Daubert. Id . at 937.
the admissibility of expert testimony is therefore "an assessment of whether the
reasoning or methodology underlying the testimony is scientifically valid and whether
that reasoning or methodology properly can be applied to the facts in issue." Daubert,
509 U.S . at 592-93, 113 S . Ct. at 2796 ; Goodyear, 11 S.W .3d at 581 .
Both Daubert and Goodyear provide a non-exclusive list of factors to be
considered by the trial court in determining the admissibility of an expert's proffered
testimony:
(1) whether the theory or technique can be and has been
tested ;
(2) whether the theory or technique has been subjected to
peer review and publication ;
(3) the known or potential rate of error in using a particular
scientific technique and the existence and maintenance of
standards controlling the technique's operation ; and
(4) whether the theory or technique has been generally
accepted in the particular field .
Daubert, 509 U .S . at 593-94, 113 S. Ct. at 2796-97 ; Goodyear, 11 S.W.3d at 578-79.
The Daubert analysis is a flexible one, and the trial court may apply any or all of the
four Daubert factors when determining the admissibility of any expert testimony :
In other words, a court may consider one or more or all of
the factors mentioned in Daubert, or even other relevant
factors, in determining the admissibility of expert testimony .
The test of reliability is flexible and the Daubert factors
neither necessarily nor exclusively apply to all experts in
every case .
Johnson v. Commonwealth, 12 S .W.3d 258, 264 (Ky. 1999) .
As the trial court concluded, Dr. Stricherz's opinion that Appellant was suffering
from ephedrine intoxication at the time of the shooting was not supported by any
reliable evidence . Dr. Stricherz's theory that ephedrine can cause "psychotic episodes"
was based upon his review of the "Rand Study," his counseling of fifteen to twenty
people, and his bald opinion that Appellant was "likely" intoxicated . However, as noted
by the Commonwealth's expert, the "Rand Study" only cited five instances out of some
sixteen thousand where there were potential psychiatric effects from ephedrine .
Moreover, Dr. Stricherz failed to cite to any other studies to support his opinion, and
conceded that he had neither published any studies on ephedrine nor testified to its
effects . In fact, Dr. Stricherz candidly admitted that he was not aware of any expert
having testified about the isolated effects of such over-the-counter products . Thus, Dr.
Stricherz failed to present any reliable scientific data to establish a link between
ephedrine and intoxication or psychotic episodes .
The Commonwealth's expert, Dr. Levon, further pointed out that Dr. Stricherz's
methodology was flawed because although Dr. Stricherz admitted that the effects of
ephedrine depended largely on dosage, he failed to offer any evidence on the amount
of ephedrine that would cause Appellant's intoxication or the level of Appellant's
tolerance to the substance . Thus, while he opined that Appellant was "likely"
intoxicated at the time of the shooting, he did not offer a reliable basis for that
conclusion .
While KRE 702 has expanded the scope of expert testimony, "the courtroom is
not the place for scientific guesswork . . . . Law lags science; it does not lead it."
McClain v. Metabolife International, Inc. , 401 F .3d 1233, 1247 (11th Cir. 2005) (quoting
Rosen v . Ciba-Geicgy Corp. , 78 F.3d 316, 319 (7th Cir. 1996)). Clearly, the defense
failed to produce any scientifically valid evidence to support Dr. Stricherz's theory or to
show that his theory has any acceptance in the scientific field . Daubert, supra . Indeed,
even Dr. Stricherz noted that the study of ephedrine is a newly emerging area of
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science . As such, the trial court did not err in ruling that Dr. Stricherz was not qualified
to testify, and further that his proposed testimony was not supported by science.
Appellant next argues that the trial court erred by refusing to instruct the jury on
the defense of voluntary intoxication . Appellant claims that the evidence was unrefuted
that he had been consuming large quantities of over-the-counter stimulants in
conjunction with caffeine products, and was also suffering from sleep deprivation . He
argues that his own testimony and that from lay witnesses justified an instruction on
intoxication . We disagree .
KRS 501 .010 provides, in relevant part :
(2) "Intoxication" means a disturbance of mental or physical
capacities resulting from the introduction of substances into
the body .
(4) "Voluntary intoxication" means intoxication caused by
substances which the defendant knowingly introduces into
his body, the tendency of which to cause intoxication he
knows or ought to know, unless he introduces them pursuant
to medical advice or under such duress as would afford a
defense to a charge of crime.
However, pursuant to KRS 501 .080, intoxication is a defense to a criminal charge only if
such condition either: "(1) Negatives the existence of an element of the offense ; or (2)
Is not voluntarily produced and deprives the defendant of substantial capacity either to
appreciate the criminality of his conduct or to conform his conduct to the requirements
of the law."
Appellant contends that his consumption of stimulants, in conjunction with his
sleep deprivation and use of caffeine products, caused a "disturbance of mental or
physical capacities." KRS 501 .010(2). And, further, that his ignorance of the potential
harm caused by the substances showed that his intoxication was actually involuntary .
Thus, Appellant submits that the jury could have reasonably concluded that the impact
of the over-the-counter substances negated any intent, resulting in an acquittal of
murder or a conviction for a lesser degree of homicide .
In Soto v. Commonwealth, 139 S .W.3d 827, 867 (Ky. 2004), cert. denied,
U.S .
, 125 S . Ct. 1670, 161 L . Ed . 2d 495 (2005), this Court reaffirmed the long-
standing principle that "[a]n instruction on voluntary intoxication is warranted only when
there is 'evidence not only that the defendant was drunk, but that [he] was so drunk that
[he] did not know what [hel was doing ."' (Quoting Springer v. Commonwealth , 998
S .W .2d 439, 451 (Ky. 1999)) (Emphasis added in Soto ). See also Caudill v.
Commonwealth , 120 S .W.3d 635 (Ky. 2003), cert . denied , 542 U .S . 922, 124 S . Ct.
2877, 159 L . Ed . 2d 781 (2004), and Foster v. Commonwealth , 827 S .W .2d 670 (Ky.
1991), cert. denied , 506 U .S . 921, 113 S . Ct. 337, 121 L . Ed . 2d 254 (1992).
Appellant's own testimony belies any contention that he did not know what he was
doing . He gave a detailed description of the events prior to and following the shooting .
Further, he claimed that he intentionally fired at Williams after Williams allegedly shot at
him .
Every witness that observed Appellant either before or after the shooting testified
that he was calm and lucid, and certainly showed no signs of intoxication . Indeed,
Appellant's "defense was not that [he] could not form the requisite intent to murder
[Williams] because of intoxication, but that [he] killed [Williams] intentionally in selfprotection . . . ." Springer , 998 S .W .2d at 452.
The trial court is required to instruct the jury on every state of the case deducible
or supported to any extent by the testimony and evidence . Taylor v. Commonwealth ,
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995 S.W .2d 355 (Ky. 1999) . "[N]o matter how preposterous, any defense which is
supported by the evidence must be submitted to the jury." Id . at 361 . However, in this
case, there was absolutely no evidence, even from Appellant himself, to support an
instruction on voluntary intoxication . No error occurred .
Ill .
Finally, Appellant argues that the trial court erred in permitting the
Commonwealth's firearms expert, Scott Doyle, to testify as to the shell casing pattern
for the murder weapon . Appellant claims that Doyle's experiments were conducted in a
controlled environment, not under circumstances similar to the shooting . Following a
Daubert hearing, the trial court ruled that the evidence was scientifically reliable, and
that the variables of the experiment went to the weight rather than the admissibility of
the evidence . We agree .
Scott Doyle testified that he had been a firearms examiner for the Kentucky
State Police for twenty-five years, and had conducted the experiment using Appellant's
.9 mm pistol and ammunition similar to that found at the crime scene . Doyle explained
that to measure the normal shell casing ejection pattern for the murder weapon, he fired
the gun thirteen times from a fixed position, and thereafter marked the point of impact
for each casing . Doyle then measured the distance and angle of departure for the
casings . Doyle concluded that the normal ejection pattern for Appellant's weapon was
five to seven feet, to the right at an angle of thirty-five degrees.
Doyle further testified that his tests were conducted in a laboratory setting, and
that the purpose was solely to establish a base pattern from a fixed firing position .
Doyle pointed out that he marked the point of impact for each casing, not where the
casing came to rest. Further, Doyle conceded that a number of variables could
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significantly alter the results, including the angle at which the shooter held the weapon,
as well as the terrain where the shooting took place.
The Commonwealth acknowledges the decision in Stevens v.
Commonwealth , 462 S .W.2d 182, 185-86 (Ky. 1970), wherein our predecessor court
held :
Generally speaking, the results of out-of-court
experiments are admissible in evidence if such evidence
tends to enlighten the jury and enable them to more
intelligently consider the issues or if they provide evidence
more satisfactory or reliable than oral testimony. Such
evidence is never admissible, however, unless the
conditions under which the experiment was performed were
substantially similar to the case under consideration . The
trial judge is vested with a broad discretion in determining
both the question of substantial similarity of conditions and,
if substantial similarity exits, the admissibility of the
evidence .
(Citations omitted) .
Clearly, Doyle's experiments were not conducted under substantially similar
circumstances . Although he used the actual murder weapon and similar ammunition,
the tests were conducted in a laboratory setting, not at the crime scene .
Notwithstanding, Doyle's tests were never intended to be a re-creation of the crime.
Rather, he sought to establish the standard shell casing ejection pattern for the weapon
to refute Appellant's contention that he fired at Williams in self-defense from a distance
of fifteen yards (45 feet). And further, Doyle was quick to point out to the jury that there
were, in fact, numerous variables that could have affected the results .
In United States v . Metzger, 778 F .2d 1195, 1204 (6th Cir. 1985), the Sixth
Circuit Court of Appeals opined :
Experimental evidence may properly be admitted only
if the test was conducted under conditions substantially
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similar to those of the event. However, the substantially
similar standard is a flexible one which, even when
construed strictly, does not require that all variables be
controlled . E . Cleary, McCormick on Evidence, ยง 202, at
601-02 (1984) ; see also Randall v . Warnaco, Inc., 677 F.2d
1226, 1233-34 (8th Cir.1982) ("Admissibility . . . does not
depend on perfect identity between actual and experimental
conditions ."). Indeed, most "[d]issimilarities between
experimental and actual conditions affect the weight of the
evidence, not its admissibility." Szeliga v. General Motors
Corp., 728 F.2d 566, 567 (1 st Cir.1984) .
We likewise conclude that the dissimilarities between the experimental and
actual conditions went to the weight of Doyle's testimony, not to its admissibility. The
jury was made aware of the specifics of Doyle's tests and how they differed from the
conditions at the time and place of the shooting . See Current v. Columbia Gas of
Kentucky, 383 S .W.2d 139 (Ky. 1964) . Doyle used the same .9 mm pistol that fired the
fatal shot and used ammunition consistent with that recovered at the crime scene. The
purpose of the tests was to determine, based on the shell casing pattern, the distance
at which the gun was fired . Indeed, "[t]estimony on how . . . casings are ejected from a
particular . . . weapon would allow the jury to draw conclusions about the proximity of
the casings that they would otherwise be unable to make." Mondie v. Commonwealth ,
158 S .W .3d 203, 212 (Ky. 2005). That the casing was found within ten feet of Williams'
body, and the ejection distance of Appellant's gun was five to seven feet, certainly
undermined Appellant's claim that he fired from a distance of forty-five feet.
Doyle was well qualified by his knowledge, training, and experience to conduct
these tests and render an expert opinion as to the results . The trial court did not err in
admitting this evidence .
The judgment and sentence of the Hopkins Circuit Court are affirmed .
All concur.
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COUNSEL FOR APPELLANT:
Marc A. Wells
Wells & Wetzel
209 West Main Street
P . O . Box 644
Princeton, KY 42445
COUNSEL FOR APPELLEE :
Gregory D. Stumbo
Attorney General of Kentucky
Carlton S . Shier
Assistant Attorney General
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601
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