STEVE BURTON V. COMMONWEALTH OF KENTUCKY
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MODIFIED ()N DEC'I~;MIWR 8, 2009
MODIFIED ON N()VEMI31-4;R 2, 2009
RENDERED : ()C'I'()13ER 29, 2009
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2000--SC--000784-MR
STEVE BURTON
V.
ON APPEAL FROM HICKMAN CIRCUIT COURT
HONORABLE CARL HURST,,.JUD(aE
NO . 05-CR-00055
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE SCOTT
AFFIRMING IN PART AND REVERSING IN PART
A Circuit Court jury convicted Steve Burton of second-degree
manslaughter, second-degree assault, and operating a motor vehicle with a
suspended license, for which the trial court sentenced him to a total of twenty
(20) years imprisonment . He appealed the Circuit Court judgment to this
Court as a matter of right. Ky.Const. 110(2)(b) . For reasons that the undue
prejudice arising from the introduction of the urinalysis results, when viewed
within the context of the other evidence, substantially outweighed its probative
value under KRE 403, and thus were improperly admitted, we reverse Burton's
second-degree manslaughter and second-degree assault convictions . We affirm.
his conviction for operating a motor vehicle with a suspended license .
I . FACTS.
Burton's convictions stem from an automobile collision that occurred can
a rural two-lane road . Burton's autotnotAc collided hc od-can with an
automobile approaching from the opposite direction driven k)y,Jeffrey Bartolo.
James Boyd was a passenger in Bartolo's automobile . Other t-.han the
occupants of the two vehicles, there were no eyewitnesses to the crash .
Shannon Sayre and Nick Parnell who lived nearby, arrived moments later
and both testified at trial of their observations. Sayre heard a loud boom and
saw there had been a wreck . She told Parnell, who called 91 1 and went to the
scene of the accident.
Following the collision, Burton's automobile came to rest against a tree.
Burton was trapped in his car with a broken arm, but conscious and trying to
extricate himself. Burton knew Parnell, and asked him to help get him out .
Parnell told him to remain in the car until the ambulance arrived because he
might be hurt. Burton, however, asked Parnell not to call the police or the
ambulance, asserting he was not hurt . Police and paramedics arrived shortly
thereafter.
Buffy Kyle and Mark Travis were the first paramedics to arrive. . They
found Burton trapped in his car and concluded that he did not appear to have
any life-threatening injuries . Kyle went to the other car, while Travis remained
with Burton . Traeii in .st ;.eacted Bu-ton to
-remain
c. :_I,m_ and not to 1'nov
because movement could make his injuries worse . Burton, however, continued
to struggle.
When Burton finally extricated lhirriself, his fractured arm flopped
unnaturally "from side to side." He contMucd, lic~wever, to insist. that he was
not injured . Travis then tried to walk Burton across the road to the
ambulance, but Burton return-ed to his c~ir. He continued to wander "tack and
forth" from the car to the ambulance. At cane point., Travis had to pull Burton
from the path of an oncoming ambulance . Eventually, Travis succeeded in
getting him into the ambulance.
Burton first told Travis that he hit a tree but later told him that someone
else had been driving the automobile, and that he did not know what
happened . At times, Burton appeared aware and oriented, but at other times,
he just kept asking about the other car. Kentucky State Trooper .John Sims
(Officer Sims) thought perhaps Burton had a head injury or some type of
amnesia . Burton, however, knew his name and his date of birth .
When Officer Sims spoke to Burton in the ambulance, Burton told him
that he did not know what had happened . When pressed, Burton said that he
had picked up some friends and that someone other than himself was driving
the automobile . But when asked to identify the driver, Burton could not. Then
again, he claimed he did not know what had happened. No evidence emerged
to corroborate Burton's statement that there was another driver or occupant in
his a tomo-1-fle . 0icei_ Si?"yy'! v, however,
:
s-c,
aiv
appear to be under the influence of alcohol.
At the hospital, Burton at first refused a urine sample . After he was
informed that a catheter would be used to obtain the sample, he assented and
provided the sample . Ultimately, t.hC' Urin,, dysis tested positive for t-fie presence
of marijuana and cocaine but. the tests could not. determine the concentration
of these substances in Burton's systern or when he had ingested the
substances.
Boyd and Bartolo meanwhile were not. int.erviewed at the, scene as both
were airlifted to the hospital. Officer Sims, however, noted that both may have
been under the influence of alcohol .' Witnesses smelled alcohol around their
vehicle and broken beer bottles were observed in and near their vehicle .
Bartolo, the driver, died from his injuries later that day . Boyd survived, but
has since been confined to health care facilities because of injuries sustained
in the crash .
Kentucky State Police accident reconstructionists later determined that
Burton's automobile collided with Bartolo and Boyd's vehicle in their lane of
travel (slightly to the left of the centerline of the roadway) . Burton was
subsequently indicted on charges of murder, first-degree assault, and
operating a motor vehicle with a suspended license .2
At trial, the court instructed the jury on murder, second-degree
manslaughter, and reckless homicide for Bartolo's death, and first-degree
assault and second-degree assault for Boyd's injuries . The jury found Burton
guil", of second-degree manslaughter and second-degree assault, as well as
Officer Sims was not allowed to testify at trial to the results of Mr. Bartolo's blood
alcohol.
Burton was also charged with being a first-degree Persistent Felony Offender which
was dismissed. His sentence for operating a motor vehicle with a suspended
license was ninety (90) days, to run concurrently.
operating a motor vehicle on a suspended license . Burton was sentenced. to a
total of twenty (20) years ii-riprisontnent in accordance with the jury's
recommendation of ten (10) years on the second-degree ulanslaughter
conviction and ten (10) years on the second-degree assault conviction, to run
consecutively.
11 . ANALYSIS .
A. The admission of the urinalysis results .
Burton, filed a motion in liminc requesting exclusion of the urinalysis
results as irrelevant and inadmissible because the results failed to establish
concentration levels or impairment .
At trial, the lab technician that tested Burton's urine testified that it
tested positive for THC (marijuana) and cocaine . She could not, however, say
what quantities were present or when the substances had been ingested . Dr.
Terry Martinez, a toxicologist and pharmacologist, testified that a urinalysis
tests for inactive metabolites (by-products of the drug, not the active drug
itselfl, and therefore the test could only establish that Burton had. ingested
cocaine and marijuana sometime in the past .
Dr. Martinez explained that the urine test does not indicate whether
Burton was under the influence of, or was impaired by, these substances at the
time of the test. The effects of cocaine generally last an hour,. but a. person's
urine could test positive from two to four days after its ingestion. The effects of
marijuana could last up to six hours, but a person's urine could test positive
seven days after its ingestion . Pointedly, Dr. Martinez testified that the urine
test indicated absolutely nothing; about whethcr Mr. Burton was impaired at.
the time of the accider-t .
According to Dr. Mart.inez, a blood test is the key indicator for whether or
not there .is-impairment and thus ,correlates rr 0ch 1)(t.ter- to actual impairment .
No blood test was performed in this case, nor- did the Commonwealth offer any
evidence to rebut Dr. Martinez's testimony .
On appeal, Burton contends that for the urinalysis results to be relevant
and admissible, the Commonwealth had the burden of proving that the amount
of cocaine and marijuana found in his system was sufficient to cause
impairment . Burton further argues that even if the urinalysis had some
relevance, it should have been excluded as unduly prejudicial under Kentucky
Rules of Evidence (KRE) 403, or as evidence of "other crimes, wrongs or acts"
under KRE 404 .
The Commonwealth concedes preservation on the arguments concerning
relevancy and KRE 403, but denies preservation as to Burton's KRE 404 issue,
asserting that the issue was not raised before the trial court. See Sprin eg r v.
Commonwealth , 998 S.W .2d 439, 446 (Ky. 1.999) ("A new theory of error cannot
be raised for the first time on appeal .") (citing RCr 9 .22 ; Ruppee v.
Commonwealth , 821 S .W .2d 484, 486 (Ky. 1991)) .
Here ; however, it appears that both
Yn }tAr~
vrnt^n
brought to
he
attention of the trial court. See Lanham v. Commonwealth, 171 S .W.3d 14, 21
(Ky. 2005) . The motion in limine, dealing with separate items of evidence,
argued both KRE 403 and KRE 404 . The hearing on the motion dealt with KRE
403 and KRE 404 concerns, albeit as tlicy related to Burtonn's prior DIA, which
gave rise to the driving on a suspended license c-1iarge and was vocalized as the
KRE 404 problem, rather than the urinalysis rcstilt:s.,; In reality,
t.l1c"
majority
of these issues :will be resolved under KRE 403 . However, it. is clear from the
hearing that the court recognized from counsel's discussions, and its review of
prior precedents dealing with urinalysis results, that the temporal relationship
of the use of the substance measured by the urinalysis would be a factor in the
criminality of the event and in the determination of admissibility. However, the
determination of admissibility was passed to trial, where Burton's subsequent
objection was overruled .
Thus, in deference to the confusion surrounding the appropriate use of
urinalysis results (whether it is a KRE 403 or KRE 404 matter), we believe the
issue was fairly preserved .
An appellate court ought to be sensitive to the realities, and if it
believes there may have been a miscarriage of justice it should use
its extraordinary power and, reverse a. judgment that there may be
a fuller development of the facts so that the guilt of the accused, if
he is guilty, may be more certainly determined .
Stone v. Commonwealth , 456 S .W.2d 43, 44 (Ky. 1970) (quoting Davis v.
Commonwealth , 162 S .W.2d 778, 789 (Ky.1942)). And plainly, this
At the hearing, the Commonwealth argued that the urinalysis results "were offered
as to 'wantonness,"' not to impairment: "It is a factor in the degree of wantonness
the jury may find." Appellant's counsel pointed out, however, that "[i]t would have
to be going to impairment if you're using it to prove wantonness -cause otherwise
what would be wanton about it," i .e., making the point that prior drug use
unconnected with the physical/mental condition and/or circumstances
surrounding a criminal event would be inadmissible .
"merits our reconsideration t o remedy the 1corflfrasion j i » our law."
Lanham , 171 S .W .3d at 20.
The confusion to which we refer evolves out of the dual nature of
urinalysis results. Ire= one instance, it may be part-of fe-i rime and thus
evidence of, or in support, of, the appropriate mental state. On the other hand,
it may be so temporally disconnected from the criminal event. or criminal
mental state at issue as to only constitute proof of other "crimes, wrongs or
acts" pursuant to KRE 404 . In these latter instances, the evidence must be
first evaluated under KRE 404, and if found admissible, then under KRE 403.
In the first instance, it is a KRE 402 and KRE 403 matter. Ilere, it is a KRE
403 matter .
Burton was indicted for multiple offenses involving wanton mental
states . "One way to prove wantonness is to show that the defendant in a
vehicle-homicide 1,or injury,] case was driving while intoxicated." Burchett v .
Commonwealth , 98 S .W .3d 492, 494 (Ky. 2003) . Here, however, no witness
could say what quantities were present or when the substances had been
ingested . Dr. Martinez testified that a urinalysis tests for inactive metabolites
(break-down products), not the active drug itself, and therefore the test only
established that Burton had ingested cocaine and marijuana sometime in the
past.
In Billings v. Commonwealth , 843 S . W.2d 890, 892 (Ky. 1992), this Court
noted that:
Against the hoary proposition that we welcome any evidence
tending to make a material fact, i.e ., an element of the offense,
appear more likely or less likely Man it would appear absent 1laat
evidence, is counterpoised the equally venerable rule that . to
defendant may not be convicted can t17c basis of low character or
criminal predisposition, everi though such character car
predisposition makes it appear nacre likely that: the defendant. is
guilty of the charged offense . They upshot is that evidence of
criminal conduct other than that lx."ing tried is admissible only if
probative of an issue independent of c;fiar~acter car criminal
predisposition, li .e., KRE 4. 04] and only if its probative value can
that issue outweighs the unfair- prejudice with respect. to character
[i .e ., KRE 403] .
Id . (emphasis in original) ; See also Rowe_ v. Commonwealth , 50 S .W.3d 210,
223 (Ky. Ct. App. 2001) .
This Court has previously considered issues relating to the admissibility
of urinalysis results in Berryman v. Commonwealth , 237 S.W.3d 175, 178 (Ky.
2007) ; see also Parson v . Commonwealth , 144 S .W .3d 775, 780-81 (Ky. 2004);
Estep v. Commonwealth, 957 S .W .2d 191, 193-194 (Ky. 1997) ; Bush v .
Commonwealth , 839 S .W .2d 550, 555 (Ky. 1992) .
In Bush, the defendant/ driver had an established blood alcohol level of
0.13% . The defendant's urinalysis showed traces of marijuana and
amphetamines, yet his blood sample was negative for these drugs . "The
chemist could not say the drugs were present in [a] sufficient amount to
impair, and because [the] drugs where not present in the blood but had passed
from the blood into the urine, [the] date and time of ingestion could not be
calculated." Bush. 839 S .W.2d at 555 .
Nevertheless, it was the "Commonwealth's contention that `the evidence
was relevant to show wanton conduct.' Id. The court, recognizing the issue to
be "whether [the] evidence showed only a predisposition to act wantonly, or
whether it is probative to show the appellant was acting wantonly by driving
under the influence of drugs as wall as the alcohol on this occasion," held the
admission of the evidence to have been error, but believed, given other evidence
of impairment, that the error wa,s "harmless." Id . Justice Lcibson, vcrho wrote
the majority opinion, but also a separate opinion dissenting in part, framed the
issue well in his separate opinion, noting :
The evidence failed the test: of relevance because there was nothing
to infer that the presence of marijuana and amphetamine as found
in the urine made the ultimate fact at issue, whether appellant, was
driving under the influence, any more or less probable . Certainly
we have not yet reached the sorry state of affairs where prior use of
marijuana and amphetamines, unrelated to the accident, should
be considered evidence to prove wanton conduct on the occasion of
the accident .
Id. at 557-558 (Leibson, J ., dissenting in part and concurring in part) . It
is noteworthy that the blood analysis in Bush established that the drugs
did not affect the defendant's conduct as they were not in his blood .
Estep was next and involved a defendant with no alcohol in her system.
Yet, blood tests revealed the existence of five (5) different prescription drugs in
her body - Xanax, Elavil, Soma, Valium, and Hydrocodone - some at
therapeutic levels and some not. In addition, the hospital nurse, assessing the
defendant after the accident, found fifty-eight (58) Xanax ta.blets in her purse
and a handful of Soma and Xanax tablets in her pants pocket. In addition to
the blood tests, her urinalysis results disclosed the presence of marijuana in
her system. Estep, herself, "admitted that she and a friend would sit around
the house and smoke marijuana in order to `try to enjoy a little bit of life ."'
Estep, 957 S .W .2d at 194 . She also discussed her use of the prescription
10
drugs. Dr. Hunsakcr, the Commonw(--,-,dt.li's rrrcdiwil exhort ., testified that the
presence of the prescription drugs in thC (JL1,'1nt.itiCS found would cause
impairment of one's ability to operate a unotor vchiclc . I Ie reiterated, "IsIhe
."
appeared to be under t-lu, influence of-something Id -. at 195.
Moreover, the prosecution's theory in
was that. Estep "constantly
took drugs in order to feel good ." Id - at 194 . This Court., in reviewing the
urinalysis results evidencing the presence of marijuana, found that the trial
court did not abuse its discretion in admitting the urinalysis results as, in this
instance - such evidence was reasonably related to proof of wantonness . Id .
Moreover, given proof of the impairment, the urinalysis evidence assisted in
identifying the substances used by the defendant as well as evidencing
temporal aspects of the conduct pertinent to the degree of the wanton conduct,
i .e., Estep "constantly took drugs to feel good:"
We addressed the issue next in Parson, where the defendant had an
extremely high blood alcohol concentration of 0.238 grams per deciliter. In
addition, his urinalysis results tested positive for "unquantified amounts of
cocaine and marijuana ." Parson, 144 S.W.3d at 780- The Commonwealth's
medical expert, Dr. Rodgers, testified in detail to the impairable effects of the
blood alcohol level on the defendant, but could not say when the cocaine and
mariiuana had been ingested and not "know what additionale-fifect would result
from a mixture of alcohol and cocaine ." Id . at 780 . Importantly, however, Dr .
Rodgers testified that cocaine left no traces in urine after 24 hours .
Thus, when the Court stat.cd, "IWIC 17(-11(-ve that evidence that a person
charged with vehicular homicide had intoxicating drugs in his system when the
homicide occurred is relevant. to the issue of wantonness even without.
-additional evidence of the degree of irnx.)atraierd caused by its presence," Id . at
781 (emphasis added.), it recognized the temporal link under the evidence at
hand (cocaine disappears from urine within 24 hours) of such conduct as a
quantifier of the degree of wanton conduct_ at issue ." Notably, extreme
impairment during the criminal event. (which would have taken tirnc to achieve)
had already been established by the blood alcohol analysis . Thus, under the
evidence presented to it, the Court held the urinalysis results were relevant to
the question and degree of wantonness . Parson relied on Bush and Estep , as
well as State v. McClain, 525 So .2d 420 (Fla . 1988) and State v. Weitz, 500
So .2d 657, 659 (Fla . Dist. Ct. App . 1986) (disapproved of in part by McClain),
for support.
In Weitz, the defendant/ driver was the cause of the accident. The
investigating officer arrested him after he failed a series of field sobriety tests
because he smelled of alcohol and because of other indications of intoxication .
At jail, he was administered two (2) breathalyzer tests which gave successive
readings of a 0 .017% blood alcohol level . Because this low reading was
inconsistent with the defendant/driuer's state ofintoxication the arrestinv
as
.j
officer suspected the presence of other drugs and took a urine sample . The
Although Dr. Rodgers testimony in Parson as to how long cocaine will show up
in an urinalysis (24 hours) differs from that of Dr. Martinez in this case (2-4
days), a trial court must rely on the evidence in front of it.
12
urine sample disclosed the presence of an (in(piantilied amount cA
Methaqualone, Cocaine, and 1'henc~b<irbital .
Based upon toxicology testimony that. i t was impossible to determine the
defendant's degree of impairment at the time of the offense (based upon the
mere presence of drugs in the defendant's urine), the trial judg(" suppressed the
urinalysis report. However, given the Officer's testimony of intoxication and the
low level of the breathalyzer results, which could not explain the intoxication,
the appellate court reversed and held that the urinalysis results did "tend to
prove that he was `under the influence' of those drugs ." Weitz, 500 So.2d at
659. Here again, once intoxication (or impairment) is established, yet without
identification of the substances, the use of urinalysis results is highly relevant
to the identity of the substances causing the intoxication .
In McClain, an analysis of the defendant's blood taken after the accident
demonstrated a blood alcohol level of 0.1.4 and a trace of cocaine . According to
the expert chemist who testified at the suppression hearing, the amount of
cocaine was so small that the chemist was unable to state whether its presence
could have affected the defendant's driving . The trial court then granted. the
motion to suppress on grounds that the prejudicial impact substantially
outweighed its relevance. In upholding the trial court's discretion in
suppressing the evidence- the court emalyzc d te .r tion~.7l of t1-,
1
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noting :
It may be that McClain and Weitz can be reconciled when the
challenged evidence is viewed in light ofits relationship to the other
evidence. In both cases, it could be said that the prejudicial
impact of permitting the jury to hear that the defendant had taken
13
is4on
illegal drugs was c(ILR)l but that it. was the difference in probative
value which tipped the scales. In Weitz, the defendharit's low blood
alcohol test. belied the other evidence of his intoxication . Thus, the
presence of even a small amount of drugs in the defendant's urine
was significant. because it provided an explanation for his impaired
conduct. In the inst.ant . case, McClain's blood alcohol substantially
exceeded the-figure necessary to raise a presUrnPtlcart Of
impairment . 'fhereforc, evidence of a trace amc>t.Irat caf cocaine in
McClain's blood added little to the st.ate's 17rc~c~f caf iratc~xieation .
Thus, we cannot say that the decision in W eitz way incorrect. .
However, we disapprove of the opinion --- to the extent indicated
above.
McClain , 525 So.2d at 423 (emphasis added) ._) Clearly, given the other proof of
intoxication, McCain was properly resolved under KRE 403 .
We have also noted the admissibility of urinalysis results in Berryman,
237 S .W .3d at 178 n.6, though the evidence was addressed within the context
of a motion for directed verdict. Therein we noted, that "[a) reasonable
reference could be drawn that Berryman was impaired, at least somewhat, by
the Xanax in his system ." Id. at 179 . Yet, in Berryman , the facts were such as
to compel a conclusion that the defendant was impaired . Id . The defendant
was driving at ninety-eight (98) miles per hour when he hit the back of the
vehicle ahead of him on an unobstructed four-lane highway. He made no effort
to brake or swerve before overtaking and ramming the back of a clearly visible
vehicle . Id. at 176-178 . Pointedly, like Weitz, the facts of the accident in
Ber
man left little question as to impairment. The question was one of
identifying the substance. Thus, like Weitz, the use of the urinalysis was
permissible to identify the impairing substance.
We also discuss the relationship of Bush , Estep and McClain in a well-reasoned
unpublished opinion in Boggess v. Commonwealth , No . 2001-SC-0263-MR,
2003 WL 1193266 *4-5 (Ky. Jan . 23, 2003) .
14
KRE "404(b) . . . protects against the intro(ftiction of extrinsic Wvt_
evidence when the evidence is offered
solely to
prove character [or propensity].
The text contains no intimation, howevcr, that. any preliminary showing is
necessary ]before such evidence may be introduced Ecru proper purpose .
offered for such a proper purpose, the evidencc- is subject only to general
strictures limiting admissibility such as JKREJ 402 and 403." Commonwealth
v. EngUsh, 993 S .W.2d 941, 944-45 (Ky . 1999) (quoting Fluddleston v. United
States, 485 U.S . 681, 687-88 (1988" . However, "it is a well-known
fundamental rude that evidence that a defendant on trial had committed other
[crimes] is never admissible unless it comes within certain exceptions, which
are well-defined in [KRE 404(b)] itself. Clark v . Commonwealth, 223 S-W-3d
90, 96 (Ky. 2007) (quoting Commonwealth v. Buford, 197 S .W .3d. 66, 70 (Ky.
2006)) . Yet, when offered for a proper purpose - i.e ., the taking of illegal drugs
during the time frame of, or up to, the criminal event or mental state - "the
evidence is subject only to the general strictures limiting admissibility such as
[KRE] rules 402 and 403 ." English, 993 S .W .2d at 945 . "Indeed, the same
item of evidence may be admissible in one case and not in another, depending
upon the relation of that item to the other evidence." McClain, 525 So .2d at
422 (citing E. Cleary, McCormick on Evidence, § 185 (3d ed. 1984)) .
"'Relevant MOMCC' rncans evidence having any tendency to makc, f1he
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 . "Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger- of tindLte prejudice, confusion of the
issues, or misleading the jury, or by considerations of undLac delay, or needless
presentation of cumulative evidence." KRh, 403 . Obviously, here, there are no
considerations of confusion of-the issues, misleading; the Jury, undue delay, or
needless presentation of cumulative evidence. Thus, the t.ri~al court must
determine if the evidence's probative value is substantially outweighed by the
danger of undue prejudice .
This is a "task properly reserved for the sound discretion of the trial
judge," English, 993 S.W.2d at 945 (cities Rake v . Commonwealth, 450 S .W.2d
527, 528 (Ky. 1970)), and "[t]he standard of review is whether there has been
an abuse of that discretion ." Id . (citing Pa.rtin v. Commonwealth , 918 S .W.2d
219, 222 (Ky. 1996)) . "The test for abuse of discretion is whether trial judges'
decisions were arbitrary, unreasonable, unfair or unsupported by sound legal
principals ." Id .
The Commonwealth argues that consideration of this issue is barred by
this Court's decision in Parson, holding that such evidence is "relevant to the
issue of wantonness even without additional evidence of the degree of
impairment caused by its presence ." Parson, 144 S .W. 3d at 781 . Yet, as
already alluded to, the Commonwealth's argument overlooks the full text of the
quote; including use of the word " dditinnK,1 ." T'3f' f?fl .1
t .`.;
eeri7ythe
court in McClain, we believe that evidence that a person charged with vehicular
homicide had intoxicating drugs in his system when the homicide occurred is
relevant to the issue of wantonness even without additional evidence of the
degree of impairment caused by its presence ." ld_ (emphasis added) . The Court
referred to McClain, which upheld the trig:-1l CoUrt's suppression of the urinalysis
evidence because of its holding, "that stich evidence is not inadmissible simply
because a toxicologist cannot estimate the degree of impairrrtent°caused by its
presence ." Id . a t 781 (citing to McClain . , 522 Sc~.2d at. 423 (emphasis added)) .
In Parson , the expert testified :
[T]ha.t traces of marijuana can remain in the body for weeks after
ingestion but that, traces of cocaine will disappear within twentyfour hours. He could not say when in the twenty-four hour period
Appellant had ingested the cocaine but admitted that he also could
not say that Appellant had not ingested the cocaine immediately
prior to operating his vehicle . And, although he testified in detail
to the .effects of a blood alcohol concentration of 0 .238 grams per
deciliter on the motor skills and judgment. of a person with that
amount of alcohol in his system, he did not know what additional
effect would result from a mixture of alcohol and cocaine .
Id. at 780 . Thus, in Parson , the trial court was confronted not only with an
extremely high breathalyzer reading (which reasonably implies a significant
time of consumption), but, also with a record that evidentially established that
one's use of cocaine will not be revealed on a urinalysis more than twenty-four
hours after its intake . Thus, remoteness was not a substantial factor in the
evaluation .
"The requirement that the prior act be `not too remote' is integral to
determining the probative value of the evidence. Thus, an independent act too
remote in time will fail the balancing test required by KRE 403 ." Robey v.
Commonwealth, 943 S .W.2d 616, 618 (Ky . 1997) ; see also English, 993 S.W.2d
at 945 ("[T]his is the point at which the issue of temporal remoteness becomes
a factor in determining inadmissibility .").
17
Here, neither the lab technicians, nc~r 1)r-. Martinet could testify what
quantities were present. or when the substances had been ingested . In -wt, the
evidence here showed that the cocaine-
COtzld
have been taken as much as four
(4) days priorto the. urinalysis test and that the marijuana use may have
occurred as much as seven (7) days prior to the urinalysis . Moreover, each
witness acknowledged that the urine test indicated absolutely nothing about
whether Burton was impaired at the time of the accident. Understandably,
given the apparent severity of the head -<.~n-collision, the witnesses' testimony
about Burton's conduct while his arm was flopping unnaturally "from side to
side," his walking back and forth in a confused state and almost being struck
by an arriving ambulance and the testimony concerning his impairment or
mental state following the accident was equivocal .()
Indeed, Officer Sims wrote in his report that Burton did not appear to be
under the influence of alcohol . He noted, however, that the occupants of the
other car (Mr . Bartolo and Mr. Boyd) may have been . Several other witnesses
smelled alcohol around the Bartolo vehicle and broken beer bottles were
observed in and near the vehicle . Moreover, Officer Sims knew, but could not
testify to, the results of Mr. Bartolo's blood alcohol level .?
More to the point, although the accident reconstructionist's evidence
supports the finding of Burton's __ in the accident- neither it
~
.
~. fault
?t
~
I
+
nor
r
_
any other
~.
J
One paramedic stated he "suspected" it, but conceded at trial he did not write it
down in his report as required. Justice Abramson, in her dissent, writes of this,
but such an analysis would effectively swallow KRE 403's balancing mandates in
these instances, not to mention considerations dealing with KRE 404 .
We were not asked to review this ruling and thus do not.
18
evidence, compels a conclusion that such fitilt was attributable to an
impairment consistent with Berrym . Given the scientific evidence of
an
remoteness, as well as the absence of evidence reliably supporting a conclusion
of impairment, no significant. issue of identity-vr of a t.einporal connection to
the impairment exists that is consistent_ with Weitz.
Absent a proper context. within the other evidence, the introduction of
urinalysis results only encouraged speculation . As such, the only real affect
the urinalysis results could have had was to brand Burton as a user of drugs.
This raises the unduly prejudicial value of the evidence too high to be overcome
by the minimal relevancy of its potentially remote use as much as two (2) to
seven (7) days prior to the accident. Indeed, Chief Justice Minton, in his
dissent, acknowledges that the use of the evidence only makes the issue of use
"slightly more probable."
While logic dictates that use of urinalysis results may be accurate to a
low or high degree depending upon the conclusions compelled by the
supporting evidence, the same logic dictates that its use without such
supporting evidence will result in an unreliably higher conviction rate . Thus,
once this evidence was introduced to identify Burton as a "known drug user,"
the jury verdict was a foregone conclusion .
Thus, we must conclude that the trial court a bi;sld i=s di_ccretion in the
admission of this evidence and it was error to do so . Within the context of the
other evidence we have reviewed and considering the potential result, we
cannot say that the error was harmless . Even so, it appears probable that the
effect of this evidence may have been multiplied I)y the testimony of a drug
recognition instructor for the Department of (1'riminal
)LlStaC(,
,-
Training Center,
an issue which we will consider next . .
Drug
cc,c_ gnit.ion 'Fcst-imony
On August 14, 2006, the day belbre trial, Burton's counsel received a fax
from the Commonwealth stating that it intended to call Mr. Darrell Cook
(Cook), a drug recognition instructor for the Department of Criminal Justice
Training facility at Richmond, Kentucky . The fax stated that Cook "will testify
in regard to drug recognition and the physical signs which point to use of
controlled substances. In this case particularly he will speak to blood
pressure, dilated eyes, and other relevant factors." Burton filed an immediate
written objection to Cook being allowed to testify on grounds that: (1) the
Commonwealth's announcement of its intended. use of the expert was too late: ;
(2) its expert's opinion was "not supported by a factual ba.sis ;" (3) "the opinion
was thus irrelevant and inadmissible;" and (4) "the Commonwealth had not
provided a curriculum vitae or summary of his report to allow the court or the
defense to determine whether [Mr.] Cook is or is not an expert in his field ."
On August 15, 2006, the morning of trial, defense counsel again objected
to the Commonwealth's last minute calling of Cook, stating that she had not
seen his report and h--1 i e3Ct received thr?
oTi,fnf'
n3'syxi"Eo?zs$
afternoon. The Commonwealth countered that it had not anticipated using an
expert but had only received notice on August 9 that the defense intended to
use a toxicologist along with his report. Thus, because the defense had an
expert, the Commonwealth felt that it should have or-w too. While reserving the
right to call him during its case in chief, the Commonwealth anticipated using
Cook on rebuttal, which would give tlic deferlscl more time "to look at what he's
got." Moreover, the Commonwealth informed the trial court that Cook was the
primary drug recognition instructor at Richmond and that his testimony would
be in regard to the information he could extract from the reports of the EIVITS
and troopers who observed Burton at the scene.
In response, the trial court noted its feelings about expert witnesses,
stating "you both got one, you let them both in or neither one of them ." The
court further stated that it would review the respective motions which had been
submitted on the matter and that it could be brought back up when the
witness was called. When the Commonwealth called Cook to testify on August
16, the defense reiterated its objections to his testimony, which were overruled .
Having considered Burton's written objection to Cook's testimony on the
basis of his "expertise" and the factual basis for his opinions, the court's
inclination "(you both got [an expert], you let them both in or neither one of
them"), Burton's argument the morning of trial that "it sounds like he's basing
his opinion upon information that's not admissible," and Burton's reiteration of
his objection when Cook was called at trial, we believe that Burton's objection
to Cook's testimony was .K
, .degh-te1JT nreser
a
:Ted. Moro v''
written objections, arguments, and ruling were conducted without the benefit
of a prior report of the witnesses' testimony, we believe the grounds argued by
Burton were apparent from the context of the written objections, responses,
and discussions with the court. Thus, "lw,hilc- the objections were not sharply
to the point we think they adequately 'alerted the trial judge to the proposition. ."
Hardin v. Commonwealth, 128 S.W .2d 224, 220 (Ky . 1 %H) . That being said,
even "{a] general ohjectiot 'i s sufficient . if the evidence is not. competent for any ,
purpose." Ross v. Commonwealth, 577 S .W .2d 0, 13 (Ky . App. 1978) .
At trial, Cook testified that he was an instructor at the Department
of Criminal Justice Training facility at Richmond, Kentucky, where he is
the lead instructor of DUl enforcement training. 1-1c is also the state
coordinator in Drug Recognition, a position which required two weeks of
training.
Cook testified that he had reviewed the ambulance report, that Burton's
blood pressure of 148/78 was above normal, and that. a pulse rate of If 3 was
high . He opined that the elevation in blood pressure and pulse could be
indicative of cocaine, methamphetamine, marijuana, ecstasy, or LSD use. He
also opined that the lowering of blood pressure thirty-five minutes later to
138/83 could indicate that the cocaine was wearing off. Referring to the
paramedic's testimony, Cook stated that the fact that a person was "wound
up", not responding to commands, or resistant to medical treatment, was
indicative of marijuana, cocaine, methamphetamine, or other drug use .
However; the tvvehre-step Drag Recognition pr ntoeo1,8
attempted, in part, to employ, requires an officer's
personal
Wi.;i.~.h
observation,
physical testing and examination of the subject.
s The twelve (12) steps of the protocol are: "(1) breath (or blood) alcohol
concentration; (2) interview [by] the arresting officer; (3) preliminary examination;
22
The protocol essentially consists of a twelve step systematic
assessment of the defendant's vital signs and physical appearance,
which in fact is the usual DUl invcstig~0i0ra, incltuding t.hc
standard field sobriety tests, plus <a playsical examination . nac
physical examination incorporat_cs a narrow application of
techniques borrowed from the medical licld, and includes
measuring pupil size and observing pupil reaction to light, taking
blood pressure and pulse: rate [t.hrce separate times), inspecting
the oral and nasal cavities, and touching 1-he arm to determil')(11
muscle tone .
Williams v. State, 710 So .2d 24, 28 (Fla . Dist . (..J . App . 1998) . Thus, "Iplolice
officers and lay witnesses have long bccn permitted to testify as to their
observations of a defendant's acts, conduct and appearance, and also to give
an opinion on the defendant's state of impairment based upon those
observations ." Id . at 29 .9
Notably, Mr. Cook was neither <a medical doctor nor a pharmacologist .
He did not personally observe, examine, or test Burton. In fact, he
acknowledged that Burton's elevated vital signs and behavior could simply be
the result of having just been in a serious car accident and that he could not
say definitively whether Burton was under the influence at the time . Such
(4) eye examinations ; (5) divided attention tests; (6) vital signs examination ; (7)
darkroom examination of pupil size; (8) examination of muscle tone; (9)
examination of injection sites; (10) statements, interrogation; (11) opinion ; (12)
toxicology analysis ." State v. Baity , 991. P .2d 1151, 1155 (Wash. 2000) .
This is why every case cited by the Commonwealth in its brief to sustain the
testimony of Mr. Cook on the point that testimony from drug recognition experts is
regularly admitted involves a testifying officer who personally observed, examined,
and tested the defendant . See _
Williams _v. Stare , 710 So .2d at 33-34 (personal
observations, examination and testing); State v. Klawitter , 518 N.W.2d 577, 584-85
(Minn . 1994) (personal observations, examination and testing) ; United States v.
Everett, 972 F .Supp 1313, 1315 (D. Nev. 1997) (personal observations,
examination and testing) ; People v. Quinn, 580 N.Y .S.2d 818, 819, 820 (N.Y. Dist.
Ct. 1991) (rev'd on other grounds , 607 N.Y. S.2d 534 (1993)) (personal observations,
examination and testing) ; State v. Sampson , 6 P.3d 543, 547 (Or. Ct. App. 2000)
(personal observations, examination and testing) ; State v. Baits, 991 P.2d at 1155
(personal observations, examination and testing) .
23
testimony was based solely upon his rc-vic,-w of- t lre ambuLrrIcc report and thus
violated the drug rc cognit.iori protocol alleged to support. his appearance . The
only apparent basis then for the admission ol'his testimony was the trial
court's philosophy on experts - "you, both got, one ; you let t hem both in, or
neither one of them."
We have long recognized the weight. the jury putts on an export's
testimony because of the "aura of special reliability and trustworthiness"
surrounding it. Hester v . Commonwealth, 734 S .W.2d 457, 458 (Ky. 1987) .
And, "[t]here is virtual unanimity among courts and commentators that.
evidence perceived by jurors to be `scientific' in nature will have a particularly
persuasive effect." John William Strong, Language and Logic in Expert
Restrictions of Function, Reliabilit
and Form, 71 Or.L.Rev. 349, 367 n .81 (1992) . The "danger inherent in the use
of scientific evidence is that the jury may accord it undue significance because
it associates `science' with truth ." State ex rel . Hamilton v. City Court of City of
Mesa, 799 P .2d 855, 859 (Ariz . 1990) . Therefore, "[t)he function of the court is
to ensure that the persuasive appeal is legitimate ." State v. O'Key, 899 P.2d
663, 672 (Or. 1995) . Trial courts should not overlook the "overall effect that a
technique's aura of scientific certainty will have on the jury." Sampson , 6 P.3d
at 551 (emphasis in. oriWinal) .
The standard of review of a trial court's ruling on the admissibility of
expert testimony is whether the trial court abused its discretion . Farmland
Mut . Ins . Co. v. Johnson, 36 S .W.3d 368, 378 (Ky. 2000); Goodyear Tire and
24
Rubber Co . v . Thornpson, I I S .W .3d 575,577--78 (Ky . 2000) . The test for
abuse of discretion is whether the trial court's decision was arbitrary,
unreasonable, unfair or unsupported by sound legal principles . Id . at 581 . In
the present case, the trial court's ruling appears k) have been based solely on "-',
the fact that because the defense had an expert, the Commonwealth could have
one too. We cannot say that this reasoning is supported
by
sound legal
principles.
Further, Cook's unqualified. testimony improperly invited the jury to
speculate that Burton could have been under the influence of LSD, ecstasy,
and methamphetamine - all illicit substances of which there was no evidence.
Although we acknowledge that drug recognition testimony is admissible based
upon personal observation, examination, and testing, see
Williams, 710
So.2d at 34, we therefore caution the trial court to test this witness and his
conclusions per KRE 702 at any retrial.
C . The testimony of James Boyd .
James Boyd suffered massive injuries in the collision, which left him
severely disabled and speech-impaired . Burton filed a motion in limine to
exclude Boyd's testimony on grounds that "filt is defense counsel's
understanding that Mr. Boyd neither remembers the accident nor has any firsthand knowledge as to h,-..w it hnppened . rherefore testimony regarding hi
injuries would be irrelevant pursuant to KRE 402 ." In its response, the
Commonwealth argued that Boyd does have some memory of the incident but
whether Boyd has any memory of the crash is, in any court, a question for the
25
jury . The Commonwealth further argtaed that the f ct
-Ind
extent of 13oyd's
injuries was relevant, to proving "serious physic<d injury" for purposes of first.degree assault .
At the, .h-earing on the motion, the Commonwealth acknowledged that six
months before trial Boyd could not have keen aNe to communicate, but. that
Boyd had since improved and recently indicated that. he did remember the
accident and could communicate, although he would be difficult to
understand . The court then ruled that as long as Boyd could communicate, he
could testify. The defense could then test his ability to recollect. Finally, the
court ruled that Boyd's injuries were relevant to proving serious physical
injury .
At trial, Boyd's speech was very difficult to understand . But when asked
if he remembered the wreck, he appears have said, "yeah." When asked
whether he was on his side of the road or on Burton's when the wreck
occurred, Boyd appears to say "ours ."
Because Boyd was difficult to understand, the trial court suggested that
he demonstrate with his hands which side of the road he meant . The
prosecutor then asked Boyd to imagine his (the prosecutor's) arms were two
different sides of the road . The prosecutor then raised his right arm and
explained this represented Bo~Td's side of the road _ The
1
1
J
1"~!
^
ised
Pcut 'r raised his
left arm and explained this represented the other side of the road. The
prosecutor then asked Boyd which side of the road he was on when the cars
collided . The prosecutor then leaned toward Boyd with his right arm closest to
Boyd. Boyd reached out and totachcd t he prosecutor's right arm, ostensibly
testifying that he and Bart:olo wcrc in their lane of travel whet-l the collision
occurred.
KRE 601 provides, in part :
(b) Minimal qualifications . A person is disqualified to
testify as a witness if the trial court. determines that
he :
(1) Lacked the capacity to perceive accurately
,
the matters about_ which he proposes to testily;
(2) Lacks the capacity to recollect: facts ;
(3) Lacks the capacity to express himself so as to
be understood, either directly or through an
interpreter; or
(4) Lacks the capacity to understand the
obligation of a witness to tell the truth .
KRE 601 establishes a presumption of competency arid allows
disqualification of a witness "only upon proof of incompetency ." Price v.
Commonwealth , 31 S .W.3d 885, 891 (Ky . 2000) . First, the defense presented
no evidence to indicate that Boyd,
as the passenger in Bartolo's car, was
incapable of perceiving the collision at the time it occurred . KRE 601(b) (1) .
Second, when asked if he remembered the accident, Boyd apparently said,
"yeah ." KRE 601(b)(2) . The burden was on the defense to prove that he could
not recollect. The defense, however, chose not to
c?"C_?sC_P`'
Boyd nor
present any evidence to rebut his assertions .
On the witness stand, Boyd was awake and attentive and he appeared to
be listening to and understanding the questions being directed to him.
Although his speech was very difficult to underst- nd, his responses of "yeah"
and "ours" were discernable . Further, in light ()f Boyd's speech disability, we
see nothing amiss in the trial court's allowing Burton
t.0
gest.ure as an alternate
means of communication . Although Burton atlempts to argue that Boyd. only
pointed to the prosecutor's right arm because it was t;he closest to Boyd,
(representing that he and Boyd were in their lane when the crash occurred),
the defense was free to cross-examine Boyd on
this
issue and chose not to.
Under these facts, we cannot. say the trial court's finding of competency was an
abuse of discretion . Whitehead v. Stith , 105 S .W .2d 834, 837 (Ky. 1937)
(stating that a trial court's competency determination is reviewed under an
abuse of discretion standard) . As to the intimation that Boyd's pointing was
influenced by the closeness of the prosecutor's right arm, this should certainly
be avoided at retrial.
Burton additionally argues that Boyd's testimony violated KRE 403, on
grounds that Boyd was incompetent to testify and that his severe disabilities
aroused undue sympathy for him from the jury. We disagree. We have
addressed the competency issue above . As to the probative value of the
testimony, other than Burton - who did not testify and had stated that he did
not know what happened - Boyd was the only surviving eyewitness to the
crash. Thus; his testimony was highly probative of how the s.rssh ocrurred ._ In
addition, Boyd's injuries were relevant to proving the "serious physical injury"
element of the first-degree assault charge. Kentucky Revised Statutes (KRS)
508.010.
As to Burton's claim of undtic pi-cpidicc rcstalting from Boyd's
sympathetic appearance and his colitct111on that the prosecution could
h<AVC
introduced medical evidence to establish Boyd's injuries, "the proscct.i t loll is
permitted to prove its ease by'-competent- evidence of its own choosing, and the
defendant may not stipulate away the parts of the case that he does not, want
the jury to see." Barn.ett v. Commonwealth, 9 79 S .W.2d 98, 103 (Ky . 1998) .
So, we find no error in the trial court's admission of Boyd's testimony.
D . The Mistrial Mo tion.
Burton contends that the trial court: erroneously denied his mistrial
motion after a prosecution witness revealed that Burton had a prior DUI,
contrary to the parties' agreement that his prior DUI would not be mentioned
at trial . We note, however, that the prosecutor did not appear to intentionally
elicit the existence of the prior DUI . Instead, after being asked by the
prosecutor how he found out the identities of people on the scene, the police
officer volunteered that he found out Burton's license was suspended for DUI .
Immediately, the trial court admonished the jury to disregard the answer as
"non-responsive" and directed the prosecutor to "get something accurate"
through other questions.
A jury is presumed to follow the trial court's admonition . Martin v.
C~o nrnon rcalth; 7 S .W. :~aE 374, 381
!~sT~r,
1
aJ
n^~
.
`- i'ETP~"F
find no reason to question the trial court's decision to deny the mistrial.
Moreover, we do not believe this will reoccur at trial.
E. Sufficiency of the_
Evidence .
Lastly, Burton argues t ll~lt the t rial court erred in denying leis motion for
a directed verdict based on insufficiency
oia
evldcllcc' as to wantonness . We
consider this issue only for reasons of its potential to result in a dismissal,
rather than a retrial, as is necessitated by previously discussed errors .
,-
The Commonwealth contends that this issue is not preserved for our
review because the basis of the directed verdict motion at trial was insufficient
evidence of Burton's being "under the influence" and being at f.,iult for the
collision. While the exact words used may not be identical, a contention of
insufficiency of evidence of both impairment and being at fault for the collision
sounds substantially like a contention of insufficient evidence of wantonness,
which would not be shown in the absence of evidence of being at fault for the
collision . Thus, we conclude that the issue is preserved for review on the
merits.
As we have frequently stated :
On motion for directed verdict, the trial court must draw all fair
and reasonable inferences from the evidence in favor of the
Commonwealth . If the evidence is sufficient to induce a reasonable
juror to believe beyond a reasonable doubt that the defendant is
guilty, a directed verdict should not be given. For the purpose of
ruling on the motion, the trial court must assume that the
evidence for the Commonwealth is true, but reserving to the jury
questions as to the credibility and weight to be given to such
testimony.
Commonwealth v Benham,
L
98-11(55P
S .EVi .1r
2)d
u
11v
886
v,
1 887
r.v ~
lKy .
iaa~
100
1
appellate review, the test of a directed verdict is, if under the evidence as
a whole, it would be clearly unreasonable for a jury to find guilt, only
then the defendant is entitled to a directed verdict of acquittal.") . Id.
Burton cont.crids that. reliable evidence ()f wantonness is lacking. He
relies on his assertions that. (1) the urinalysis evidence was inadmissible,
(2) that Boyd was not, competent to testify, and (.`3) that. the "drug reeognil_ion
expert" testimony should have been exr.l~~ded under Daubert v . Merril Dow
Pharmaceuticals, lnc. , 509 U .S . 579 (191 .`3) .
Burton's argument, however, is merit-less as the evidence an appellate
court must consider in determining whether or not. the evidence was sufficient
to support a given point is the same evidence considered by the trial court,
rightfully or wrongfully . Lockhart v . Nelson , 488 U .S . 33, 41-42 (1988) ("[A]
trial court in passing on such a motion considers all the evidence it admitted,
and to make the analogy complete it must be the same quantum of evidence
which is considered by the reviewing court.") ; United States v. Quinn , 901 Ii'-2d
522, 523 (6th Cir. 1990) ("We have considered the challenged testimony in
reviewing the sufficiency of the evidence .") ; T .B. Jones &, Co . v. Pelly, 128 S.W .
305, 307 (Ky. 1910) ("While the competency of this statement is questioned,
must be considered on the appeal for the reason that it was admitted by the
Circuit Court over Appellant's objection, and if it had been excluded other
evidence might have been adduced .") ; see also Commonwealth v. McManus,
107 S .W.3d 175, 178 (Ky. 2003) ("[T]he Court of Appeals exceeded the scope of
its edirected
when tessentially
`,
" t`r
+
.
e_,
.
___
nn
nrna
,
..iriiI :-t,'r,?1?rcr
_
_ h-,
__..~.,~_
.?
;?n
u,~r
_ ,idr :'?E`,f_-.
of admissibility as opposed to evidence sufficiency.') . Any contrary definition
of the evidence reviewable by appellate courts for insufficiency would only
result in a further review of the appellate court's actions rather than the trial
court's .
Moreover, we must review the evidence introduced in its best light in
favor of the, Commonwealth . As the Commonwealth points out, there was
evidence that Burton's automobile crossed the center line of the read when the
collision occurred. And there was evidence before the trial court that would, in
its best light, support a reasonable inference of impairment, i .e ., Mr. Cook's
evidence.
Applying all reasonable inferences from the evidence that. was then before
the trial court in favor of the Commonwealth, we cannot say that the trial court
should have directed a verdict in Burton's favor, nor that it would be clearly
unreasonable for a jury to have found guilt on the "wanton" crimes for which
Burton was ultimately convicted-second-degree manslaughter and seconddegree assault. Thus, we do not find that the evidence was insufficient .
111 .
CONCLUSION .
For the foregoing reasons, we reverse Burton's convictions for seconddegree manslaughter and second-degree assault and remand the same for
further proceedings consistent with this opinion. We affirm, however, Burton's
conviction for operating a motor vehicle with a suspended license.
Noble and Venters; JJ, concur . Schroddr, J . concurs =__- rosillt- only_
Minton, C.J . ; concurs in part and dissents in part by separate opinion with
Abramson, J., and Cunningham, J., joining that opinion . Abramson, J .,
concurs in part and dissents in part: by sepaFete opinion with Minton, C .J ., and
Cunningham, J ., joining that. opinion .
MINTON, CHIEF ,JUSTICE, CONCURRING, IN I'AR'1', AND DISSENTING,
IN PART: Because it, is a startling departure from precedent, I respectfully
dissent from the majority's conclusion that. the urinalysis showing Burton had
used marijuana and cocaine is inadmissible . I also respectfully dissent from
the majority's conclusion that the issue regarding Darrell Cook's testimony was
adequately preserved for appellate review .
The Trial Court Did Not Abuse its D iscretion
by Admitting the Urinalysis .
I readily acknowledge that the urinalysis did not determine the
concentration of marijuana or cocaine in. Burton's system, nor did it indicate
when Burton had used those illegal drugs . But the indisputable fact that
Burton had used marijuana and cocaine at some point in the recent past was a
relevant and probative factor from which the jury could reasonably have
inferred that Burton was impaired at the time of the tragic accident.
All relevant evidence is presumptively admissible under Kentucky Rules
of Evidence (KRE) 402 . 1° Relevant evidence is evidence that has "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 . Because the presence of cocaine and marijuana in
10
KRE 402 provides : "All relevant evidence is admissible, except as otherwise
provided 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.
Evidence which is not relevant is not admissible ."
33
Burton's urine could lead a fact--finder to a reasonable inference that. i t. was
more probable that Burton acled wantonly in cat-ising t1w, accident., the
urinalysis results should be deemed adn-iissilfle, unless excluded for another
reason . Although it also mentions KRE 404(b), the majority apparently
concludes that the urinalysis was inadmissible under KRE 403 because, in the
majority's view, the probative value of t.he urimflysis was substantially
outweighed by the danger of undue prejudice . I strongly disagree .
Similar to the present case is Parson y. Commonwealth, 144 S .W.3d 775
(Ky. 2004), in which the appellant had a. urinalysis performed at a hospital one
hour after a motor vehicle accident. And, like the present case, the urinalysis
showed traces of cocaine and marijuana although it could not be determined
when the drugs were ingested or the degree of impairment they caused . Id.
at 780 . We held in Parson that the urinalysis results were admissible because
"evidence that a person charged with vehicular homicide had intoxicating
drugs in his system when the homicide occurred is relevant to the issue of
wantonness even without additional evidence of the degree of impairment
caused by its presence ." Id. at 781 .
I agree with the majority's proposition that a large and readily identifiable
quantity of alcohol was present in the defendant's bloodstream in Parson . But
I disagree with the majority's interpretation of Parson . The presence of a!-Cohol
in Parson was irrelevant to the conclusion that the urinalysis was admissible.
We held that the jury was informed "in detail to the effects of a blood alcohol
concentration of 0 .238 grams per deciliter on the motor skills and judgment of
a person with that amount of alcohol in his systca-i . . . ." Id. a t 780. Yet, we
still held that the urinalysis was admissible because "evidence that a person
charged with vehicular homicide had intoxicating drugs in
his
system when the
homicide occurred is relevant- to the issue of wantonness everr~u)ithout
additional evidence of the degree of impairrnent. caused by its presence." Id.
at 781 (emphasis added) . Nowhere in our opinion in Parson did we base the
admissibility of the urinalysis upon the presence of alcohol . I n fact., we held
that the urinalysis was admissible even though (1) the urinalysis did not
inform the jury of the degree of impairment and (2) the jury had already been
informed of the effect alcohol had on the defendant. So, far from being
interrelated, the admissibility of the urinalysis was an entirely separate matter
from the alcohol-related evidence . How is it possible to conclude from virtually
identical facts that the urinalysis was admissible against Parson but is
inadmissible against Burton?
The majority's conclusion also distorts and conflicts with our holding in
the recent case of Berryman v. Commonwealth , 237 S .W .3d 175 (Ky. 2007) . In
Berryman, a defendant argued that he should have been granted a directed
verdict on wanton murder and assault stemming from a tragic auto accident.
Id. at 177. We disagreed with the defendant, at least in part, because a
chemist testified that the defendant had traces of Xanax in 1-;2-- systern___even
though the chemist was not able to state conclusively whether the Xanax had
impaired the defendant . Id. at 178 n .6 . Despite no evidence directly linking
the Xanax with impairment, we nevertheless held that "the finder of fact would
be permitted to draw a reasonable inference that the Xanax did, in fact., impair
Berryman's ability to operate a motor vehicle i» <a safe, lawful manner." Id. We
even reiterated later that "jai reasonable inference could be drawn that
Berryman was impaired, at least somewhat, byAhe Xanax in his system ." Id.
at 179 . How was it permissible for a ,jury reasonably to infer that Berryman
was at least somewhat impaired by the Xanax in his system, but it is
unreasonable for a jury to be trusted to decide reasonably whether Burton was
at least somewhat impaired by the marijuana and cocaine found in his system?
Contrary to the majority's astonishing conclusion, we did not say in
Berryman that other factors (such as the def'endant's driving at a high rate of
speed) "were such as to compel a conclusion that the defendant was impaired."
Majority slip opinion, p. 14. Instead, as quoted above, we simply held that the
presence of Xanax, along with other factors, was only sufficient to support a
reasonable inference of impairment. Indeed, the crash arguably may have been
a result of inattentive driving because there was also evidence that Berryman
was watching his passenger count pills and, thus, was driving in an inattentive
manner before the crash." Id. at 176-77 . The majority mischaracterizes the
evidence when it opines that the facts in Berryman compelled a conclusion that
Berryman was impaired .
"[T]wo witnesses observed that Berryman appeared to be preoccupied with
something in the center or passenger area of the car shortly before the accident."
Id. at 176-77 . Indeed, the majority's remarkable conclusion that the evidence
compelled a finding that Berryman was impaired is belied by the fact that one of
the main thrusts of Justice Schroder's dissent in that case was his belief that a
driver's inattentiveness while speeding was not sufficient to rise to the level of
wanton conduct necessary to support a conviction for wanton murder . Id. at 18082.
36
I also disagree with the majority's tindtily narrow intcrprct_atic~n of
Estep y. Commonwealth, 957 S.W .2d l9 l (Ky. 1997), involving _yet another
wanton murder charge stemming from a tragic autorriobilc accident. . In Este ,
the jury heard detailed te,st:imony about the name and eflccts~ of five different
prescription drugs found in the defendant's blood, as well
--Is
whether those
drugs were found to be within proper therapeutic levels. I(Lat . 192-93 .
Nevertheless, we held that the Commonwealth was entitled to introduce
evidence regarding a urinalysis that showed the presence of marijuana in the
defendant's urine because we believed that urinalysis was probative of the
issue of wantonness . Id. at 193-94 .
Contrary to the majority's assertion, nowhere in Este did we hold that
"the urinalysis evidence assisted in identifying the substances used by the
defendant . . . ." Majority slip opinion, p . 11 . To the contrary, the other five
prescription drugs found in the defendant were already known by a blood test.
Id. at 193 ("Blood tests revealed the existence of five different types of drugs in
Estep's body . . . .") . And I am puzzled by the point the majority tries to make
when it opines that we deemed admissible the urinalysis in Estep in order to
"evidenc[e] temporal aspects of the conduct pertinent to the degree of the
wanton conduct . . . ." Majority slip opinion, p . 11 . As I read it, all Este
stands for is the simple proposition that a urinalysis showing !rat- dr=ags were
J
present in a defendant's system contemporaneously with the alleged
commission of the underlying offense(s) is admissible, even if the urinalysis
does not definitively show the arriotint ofdrugs or the drugs' precise effects
upon a defendant..
Finally, as I construe it, Bush v . Commonwealth, 839 ,--) .W .2d 550 (Ky.
1992)-, is distinguishable and does not affect-the adrnissibility of Burton's
urinalysis . In that case, a blood test performed upon a person charged with
wanton murder revealed an alcohol concentration of 0.1 .3 percent., The blood
test was negative for other drugs, but a urinalysis revealed the presence of
marijuana and amphetamines . Id. at 555 . Because the marijuana and
amphetamines were not found in. the defendant's blood, a chemist was unable
to testify that the marijuana and amphetamines caused, impairment. We held
that "if it was error to admit this testimony [regarding the urinalysis], it was
harmless ." Td. So Bush is unlike the present case because a blood test was
taken in that case that was negative for the presence c& marijuana and
amphetamines, meaning that it would have been illogical to infer impairment
from the presence of those drugs in the (defendant's urine. In other words,
impairment should not be inferred from a urinalysis if the drugs found in the
urinalysis were not also found in a contemporaneous blood test. Obviously,
the situation in Bush is far different from the present case because no
contemporaneous blood test was performed on Burton .
Despite its attempt to argue to the contrary, the nn-piority's novel
conclusion is directly and unmistakably contrary to our previously consistent
precedent. Because I believe it is impossible to distinguish legitimately this
case from the consistent troika of Parson, Berryman, and Estep, Kentucky's
bench and bar will have an impossible Uisk in future cases in determining
whether similar urinalysis results will headr-nissible . Indistinguishable cases
should not yield different reSLIltS .
The fact that Burton had illegal drugs or th6ir metabolites in his urine
obviously would make recent drug use before driving at least slightly more
probable than a negative urine drug screen or lack of any urine drug screen .
And recent drug use before driving would impact whether Burton had acted
wantonly . So it is clear to me that. the trial court did not abuse its discretion in
admitting the urinalysis into evidence.
I recognize that the presence of drug metabolites in Burton's urine might
not be, by itself, sufficient to establish wantonness . But in determining
whether evidence is admissible, a court. must focus on the relevancy of the
evidence, not its sufficiency.
HANDBOOK § 2 .05(3)
ROBERT G. LAWSON, KENTUCKY Evil-)ENCE LAW
(4th ed. 2003) . So the Commonwealth was not required to
prove that the drugs were present in sufficient quantity to cause impairment,
nor to show any additional proof that Burton was actually impaired in order for
the urinalysis evidence to be relevant. Parson, 144 S .W. 3d at 781 . Or, in other
words, I believe the majority errs when it opines that evidence of this nature is
admissible only if it "compels a conclusion" that the accident leading to the
charges was attributable to impairment Majority slip opinion, pstandard for admission of evidence is whether it makes a relevant issue more
or less probable, not whether it compels a conclusion. So, in addition to being
directly contrary to our precedent on this exact point, the majority's opinion
blurs what has been a clear line of demarcation between the standard for
determining the admissibility of evidence and the st .arad<ard for determining the
sufficiency of evidence. 1
='
Simply put, the admissibility of evidence does not:, -and should not,
depend upon whether the evidence compels a certain conclusion . Rather,
evidence is admissible only if it merely makes more probable car less probable
"the existence of any fact that is of consequence to the. determination of the
action . . . ." KRE 401 . The fact that Burton had illegal drugs in his system
contemporaneously with the accident should have been made known to the
jury, and the jury could have made as much or as little of that, evidence as it
deemed proper. In other words, since the urinalysis was admissible, it should
have been left to the jury, not this Court, to decide whether Burton's drug
usage was "disconnected from the criminal event or criminal mental state at
issue . . . ." Majority slip opinion, p. 8. I disagree with the majority's
12
See LAWSON, KENTUCKY EVIDENCE LAW HANDBOOK § 2.05(3) at p. 80 :
"In other words, to meet the test of relevancy, evidence need not be even
moderately probative of a material fact; [r]elevance is established by any showing of
probativeness, however slight.
Lack of appreciation of the leniency of this requirement and of the law's powerful
tilt toward admission over exclusion can result from inadequate awareness of the
difference between the concepts of relevancy and sufficiency. It needs always to be
ale~
-_ resolve mere
remembered that releva~'?cv de
iu s".
sufficiency decisions determine if disputes are to end or continue . It needs to be
remembered that relevancy determinations focus on individual items of evidence
while sufficiency determinations focus on the totality of evidence . It is because the
two concepts perform different functions and focus on evidence in different ways
that each has its own standard of measurement . Evidence is relevant if it has any
probative force ; evidence is sufficient only if its probativeness is strong enough to
induce belief in the minds of reasonable people. The difference is great rather than
slight ." (Footnotes and internal quotation marks omitted.)
.J
:'s-r-i " -si~-aiif -f
avi v a~w.aiiivv-a 1 r
..~.. ..
40~
"~~
E 'C .
v
v
insistence on hiding this potentially highly rclcvant fact 1rom t.hc jury under
the cover of KR,,' 403
The trial court has discretion to detcrminc whether the probative value of
the evidence is outweighed by any undue prejudice. Parson , `144 S .W .3d
at 781 . Unlike the majority, I conclude that the trial court. did not abuse its
discretion here, especially since the Commc~rawealth's testimony regarding the
urinalysis evidence was subjected to vigorous cross-examination and Burton
presented his own expert who testified concerning what the urinalysis could
(and could not) show. The majority sidesteps or minimizes much of the
evidence as it substitutes its analysis of the evidence for that of the trial court.
Taken in the proper evidentiary context in the present case, the urinalysis
results are highly probative . More specifically, the probative value of the
presence of the drugs in Burton's urine is heightened by: (1) the paramedic's
testimony that he suspected Burton was impaired, (2) Burton's asking Parnell
not to call the police or an ambulance to the crash scene, (3) Burton's initial
refusal to give a urine sample until he was threatened with catheterization, and
(4) Burton's very erratic behavior at the crime scene .
In short, I would follow our established precedent, recognize the trial
court's inherent discretion regarding the admission of evidence, and affirm.
Issue of Whether Fxper f Ttp~fimony of Drug Recognition
rv
1
a
Instructor was Properly Admitted Waived by Failure to
Request a Hearing on this Issue .
Burton argues that the testimony of Darrell Cook, a drug recognition
instructor, does not satisfy the requirements of Daubert v. Merrell Dow
Pharmaceuticals, Inc ., 509 U .S . 579 (1993) . But because Burton failed to
request a Daybert hearing in the trial court or demand a ruling from the trial
court on Cook's qualifications to present expert testimony, I disagree with the
majority's conclusion that the -issue is properly preserved for our ri~vicw .
However, if the majority believes the issue was adequately preserved, I believe it
should have provided guidance to the trial court about the admissibility of the
evidence on remand instead of merely "cautionling] the trial court. to test this
witness and his conclusions per KRE 702 . . . ." (Majority slip opinion, p. 25) .
After all, since the case is being remanded on other grounds and since it is
highly likely the Commonwealth will again seek to admit Cook's damning
testimony, why would the majority strain to find an issue preserved only to
decline ultimately to resolve the issue?
Without belaboring the facts, suffice it to say that I agree with the
majority that the trial court's belief that, the Commonwealth was entitled to an
expert witness simply because the defense had one was improper . The facile
old maxim, "what's good for the goose is good for the gander," is not a proper
basis for determining the admissibility of expert testimony. But I would refrain
from deciding whether the trial court's ultimate decision was correct because I
agree with the Commonwealth that this issue was not properly preserved . The
m;~jority also fails to decide exydicitly whether the trial court's decision to admit
the testimony was proper. It is unclear to me why the majority believes it
proper to castigate Cook's testimony as being "unqualified testimony" that
"improperly invited the jury to speculate that Burton could have been under
the influence of . . . illicit Substances of which there ways no evidcnce" 13 while
refusing to take the next logical step ofholding that the admission of that socalled unqualified testimony was improper .
At best, Burton's- concerns about Cook's qualification had been a-t-guably
earlier written ol)jection, stating that
raised to the trial court. through Burton's
"the Commonwealth has not provided a curriculum vitae for Mr . Cook to allow
the Court or the defense to determine whether Cook is or is not an expert in his
field." But Burton failed to request a Dayubert hearing or otherwise demand a
ruling from the trial court on Cook's qualifications to testify as an expert
witness, thereby waiving the issue . See .Dillard v. Commonwealth, 995 S-W-2d
366, 371 (Ky . 1999) ("It is the duty of one who moves the trial court for relief to
insist upon a ruling, and a failure to do so is regarded as a waiver.") .
Frankly, whether Cook was properly qualified. to offer expert testimony
about Burton's possible drug use based upon others' observations of Burton's
behavior and vital signs poses a troubling question . But since an insufficient
record has been developed on this question before the trial court, we should
refuse to speculate on what an unrequested Daubert hearing might have
indicated . Tharp . Commonwealth, 40 S .W.3d 356, 368 (Ky. 2000) ("We
decline to speculate on the outcome of an unrequested Daubert hearing, or to
hold that the. Mum to conduct such a hearing sun' s on!-r- -constitutes
error") ; Mondie v. Commonwealth, 158 S .W.3d 203, 212 (Ky. 2005) (issue of
qualification as expert unpreserved where objection was to testimony as lay
13
Majority slip opinion, p. 25 .
43
witness, and no Daubert hearing was regLic*st(-d) . "'I What we should not do,
however, is stretch our preservation rules past what had been recognized as
the breaking point only to refuse to deterimne explicitly whether the contested
evidence should have been excluded . Because- the present: case is being
remanded on other grounds, why did the majority choose to address this issue
at all if it did not want to resolve it on its merits?
I firmly believe the issue was inadequately preserved. for our review and,
thus, would summarily affirm because this issue does not lend itself to
palpable error review. Tharp, 40 S .W.3d at. 368 . But, since the majority finds
the question to be preserved, I am perplexed as to why it did not choose to
resolve this important issue.
3 . Conclusion .
I concur with the majority as to the issues regarding the testimony of
James Boyd, the mistrial, and the sufficiency of the evidence . I respectfully
dissent, however, from the majority's analysis and conclusions regarding the
urinalysis . I also respectfully dissent from the majority's determination that
the issue of the admissibility of Cook's testimony was properly preserved . I
would affirm Burton's convictions and sentence.
Abramson, J ., and Cunningham, J., join this opinion.
ABRAMSON, JUSTICE, CONCURRING IN PART AND DISSENTING IN
PART: I join completely in Chief Justice Minton's dissent, sharing particularly
his concern about the majority's "startling departure" from precedent on the
urinalysis issue and the resulting confusion for bench and bar. I write
14
The majority does not cite or discuss Daubert.
44
separately on this very important issue becc1L1sc I am compelled to underscore
that the majority, as the Chiel'Justicc notcs, also depart from the record in this
case . Indeed, they depart radically from the record . Most especially, what
about Mark Travis?
Mark Travis is the paramedic who~ treated Burton at, the scene . The
Commonwealth's brief describes his testimony (accurately in my view, having
watched the videotape) as follows :
Travis treated Appellant at the scene. Travis noticed that
Appellant appeared to be trapped in the vehicle, but had no lifcthreatening injuries. Travis told Appellant to remain calm and to
not move . Appellant, however, continued to jerk and pull, trying to
get himself out of the vehicle . Travis stated Appellant refused to
follow his directions .
Despite being implored to remain still, Appellant. eventually
extricated himself from the vehicle_ Outside the vehicle, Travis
assessed Appellant and noticed Appellant had a compound
fracture of his arm. Even though his arm was broken and flopped
from side to side, Appellant continually informed Travis that he
was okay.
Travis walked Appellant across the road to the ambulance
for further care . While Travis continued to try and provide medical
attention to Appellant, Appellant would walk away, cross the road,
return to his car, and then walk back to the ambulance . When a
second ambulance arrived, Travis had to pull Appellant from its
path to keep him from being hit.
Travis finally got Appellant into the ambulance . At one
point, Appellant stated he had hit a tree; later Appellant stated he
did not know what happened . Appellant then stated someone else
was in the car with him_ AnrelIant's oar tiaras searched but no One
1 1
else was found .
Inside the ambulance, Travis took Appellant's vital signs.
Appellant's blood pressure was 148/78, his pulse was regular at
113 beats per minute, his respirations were twenty-six per minute,
and his oxygen blood content was ninety-five percent.
Approximately thirty minutes later, Appellant's blood pressure was
45
138/83, his pulse was 103 beats her minute, his respirations were
twenty-two per minute, and his oxygen blood content was one
hundred percent.
Travis suspected Appellant was under the influence .
Appellant did not. respond like a person who was in shock normally
responded.. Travis explained that a person who was in. shock
would normally calm down and cooperate after he talked to that
person . Appellant, however, did not. cairn down and did not
cooperate with emergency personnel .
Travis transported Appellant to Parkway Regional Hospital .
There, Appellant continued to be uncooperative and combative
with hospital personnel. Appellant initially refused to provide the
emergency room nurse with a urine sample, but later agreed when
Travis and the nurse informed Appellant. they would put a catheter
in him.
Commonwealth's Brief at pp . 2-4 (footnote and 25 citations to the record
omitted) .
This is the testimony of the paramedic charged with Burton's care
immediately following the collision until such time as emergency room
personnel assumed those duties. The majority acknowledge Travis's struggles
with the combative Burton at the scene but reduce Travis's testimony about his
observations and belief in Burton's impaired state to a footnote : "One
paramedic stated he `suspected' it [impairment], but conceded at trial he did
not write it down in the report as required ." Since when did an error in
paperwork, assuming =t was error,, 15 preclude relcvana test-am¬anv?
15
Travis acknowledged that he did not record his observations regarding
impairment, noting the forms were "new" and no one was really familiar with
them at the time. He did not describe this information "as required" nor are
we cited to any other evidence which would suggest it was error to omit
the observation .
46
What about. Mark Travis? His sworn testimony has been ignored, or at
the very least minimized, because it does not fit into the majority's thesis that
the Commonwealth was "without supporting evidence" for its position that
Burton was impaired by-drugs. If Burton's behavior and Travis's trained
observations (in addition to the other evidence referenced by Chief Justice
Minton) do not satisfy the majority, I am left with the impression that their new
approach will require one of three things, i.e. a confession of immediately prior
drug use by the defendant, testimony from a credible (indeed, credible in this
Court's view) witness who saw such immediately prior usage, or blood tests
that substantiate the urinalysis . The first two are unlikely in most cases so
immediate blood tests must become the norm in order to prosecute impaired
drivers who choose drugs as opposed to alcohol.
Minton, CA. ; and Cunningham, J., join this opinion .
COUNSEL FOR APPELLANT:
Shannon Renee Dupree
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane
Suite 301
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE :
Jack Conway
Attorney General of Kentuc
Bryan Darwin Morrow
Office of the Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601
.,Ourf -of
uyrrmr (IT
STEVE BURTON
irufurh~
2006-SC-000784-MR
APPELLANT
ON APPEAL FROM HICKMAN CIRCUIT COURT
HONORABLE CARL HURST, JUDGE
NO . 05-CR-00055
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER OF CORRECTION
The Opinion of the Court by Justice Will T . Scott Modified on
November 2, 2009 and Rendered on October 29, 2009, is hereby
corrected on its face by substitution of the attached pages 1 and 48 in
lieu of the original pages 1 and 48 of the opinion . The purpose of this
Order of Correction is to correct a typographical error and does not affect
the holding of the original Opinion of the Court.
ENTERED : December 8, 2009 .
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