DAVID WEAVER V. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED : NOVEMBER 25, 2009
TO BE PUBLISHED
~s~xyr~exrrr C~.a~t~
~~ ~
2008-SC-000492-MR
DAVID WEAVER
ON APPEAL FROM ROWAN CIRCUIT COURT
HONORABLE BETH LEWIS MAZE, JUDGE
NO . 06-CR-00113
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
REVERSING AND REMANDING
A circuit court jury convicted David Weaver of first-degree burglary and
of being a first-degree persistent felony offender (PFO 1) . The trial court
sentenced him in accordance with the jury's recommendation to twenty years'
imprisonment . Because the trial court did not allow Weaver to present during
the guilt phase of the trial expert testimony relevant to his defense that
voluntary intoxication rendered him unable to form the specific-intent element
of the burglary offense, we reverse and remand for proceedings consistent with
this opinion.
I . FACTS.
The facts of this case are not complex and are mostly undisputed.
Weaver entered a residence in the middle of the night, apparently using a
garage door opener from the victims' vehicle . The couple living in the house
awoke to the smell of cigarette smoke and suspected an intruder because no
one in the family smoked . The husband found Weaver and fought him. The
couple , reported that Weaver threatened to use a gun on the husband and that
the husband struck Weaver with a baseball bat. Weaver tried to escape, but
the husband held him until police arrived. At arrest, police found on Weaver a
large amount of the victims' cash and sunglasses, which had been left in the
trunk of the victims' vehicle. No gun was found.
Police took Weaver from the scene to the hospital, where he refused
treatment. They then took him to jail, where he was lodged in the drunk tank
because of his obvious intoxication . Weaver was charged with first-degree
burglary and with being a first-degree persistent felony offender .
Before trial, questions arose about Weaver's criminal responsibility at the
time of the alleged offenses and his competency to stand trial. Weaver alleged
that he suffered from an undiagnosed bipolar condition. Following a mental
health evaluation and a hearing, the trial court ruled that Weaver was
competent to stand trial. But the trial court reserved ruling on the question of
criminal responsibility . Weaver requested that the criminal responsibility
portion of the mental health report be kept under seal unless he filed notice of
an intent to introduce expert testimony relating to mental disease or defect or
mental condition under Kentucky Rules of Criminal Procedure
(RCr) 7.24 (3) (B) (i) .
Weaver later filed his notice of intent to introduce expert testimony
relating to mental disease or defect or mental condition affecting guilt under
RCr 7 .24 . Two days before trial, Weaver produced the report of Dr. John
Matthew Fabian, a clinical and forensic psychologist . Dr. Fabian's report
stated that defense counsel requested a forensic psychological evaluation,
including assessing Weaver's mental state at the time of the incident at the
victims' home. The report also addressed "Weaver's mental state relevant to
liability and intoxication pursuant to Kentucky [Revised Statutes] 501 .080 ."
The Commonwealth asserted that it could not comply with the
requirement of KRS 504.070(4) that it provide ten days' notice of rebuttal
witnesses because of the late disclosure of Dr. Fabian's report. It also argued
that Dr. Fabian's testimony should be excluded under Commonwealth v. Tate,
893 S .W.2d 368 (Ky. 1995) . Defense counsel countered that Dr. Fabian would
testify concerning "mental disease or defect" and argued that intoxication
caused Weaver to have a "diminished capacity" to be able to form the criminal
intent required to commit burglary.
The trial court ruled that Dr. Fabian would not be allowed to testify in
the guilt phase, citing Tate, but also ruled that Dr. Fabian could testify in the
penalty phase for mitigation purposes . Defense counsel objected, arguing that
Dr. Fabian's testimony related to mental disease or defect and also argued that
the testimony was relevant to Weaver's intent. Defense counsel said that the
testimony was not directed at Kentucky Revised Statutes (KRS) 501 .080, which
concerns intoxication as a criminal defense, although Dr. Fabian's report
stated that it addressed intoxication as a defense under KRS 501 .080 .
Weaver's defense at trial was voluntary intoxication . One of Weaver's
witnesses, a man who had been present at a bar on the -night of the incident,
testified that he saw Weaver snorting Xanax and possibly other substances and
that Weaver was heavily intoxicated. Another witness, a deputy jailer, testified
that Weaver was intoxicated when he arrived at the jail, although he admitted
that Weaver was able to answer questions and recall such information as a
penicillin allergy at that time. Weaver himself also testified and claimed to
remember having consumed numerous beers and various drugs, including
cocaine, Xanax, and Oxycontin the night before the alleged burglary .
Weaver testified that he did not remember what had happened between
his consuming numerous beers and drugs at the bar and his waking up in the
drunk tank the next day. On cross-examination, the Commonwealth
attempted to impeach his professed memory lapse by asking him whether he
told Dr. Fabian that he remembered the police putting him into a police car.
Weaver replied that he could have told Dr. Fabian anything, prompting the
Commonwealth to remark that Dr . Fabian could be called to testify to relate
what Weaver had told him.
After Weaver testified, the Commonwealth pursued this line of
impeachment by calling Dr. Fabian as a witness. The Commonwealth asked
Dr. Fabian if his report stated that Weaver had told him that he remembered
being dragged by the police out of the victims' house . Dr. Fabian responded in
the affirmative .
Despite defense counsel's argument at the bench that the
Commonwealth had opened the door into further inquiry into Dr. Fabian's
evaluation and report, the trial court stated that Dr . Fabian was allowed to
testify for impeachment purposes only and limited defense counsel's
questioning of Dr. Fabian . The trial court allowed defense counsel to ask
Dr. Fabian whether he was asked to perform an evaluation of Weaver. The trial
court allowed no further discussion of the purposes of the evaluation. In
response to defense counsel's questioning, Dr. Fabian acknowledged that he
had prepared a lengthy report but had only been allowed to testify to an
isolated statement in this report.
At the conclusion of the evidence, the trial court's instructions to the jury
included Weaver's voluntary intoxication defense. The trial court also
instructed the jury on the elements of first-degree burglary and lesser-included
his
offenses . Defense counsel argued in closing argument that because of
intoxication, Weaver did not have knowledge that he lacked permission to enter
the home ;' and Weaver did not form the specific intent to commit a crime
required for a burglary conviction . Rather, he argued that Weaver was at most
guilty of the lesser
offense of trespass . Unmoved by these arguments, the jury
convicted Weaver of first-degree burglary.
Defense counsel argued that Weaver might have mistaken the victims' home for a
nearby homeless shelter, where Weaver intended to spend the night.
At the beginning of the penalty phase, the trial court asked defense
counsel whether Dr. Fabian's testimony would be presented during the
proceedings to determine the sentence for the burglary or during PFO
proceedings. Defense counsel. elected to present Dr . Fabian's testimony during
PFO proceedings . At the conclusion of this phase, the jury recommended the
minimum sentence of ten years' imprisonment for the first-degree burglary
conviction .2
Next, the Commonwealth presented evidence of Weaver's prior
convictions. Dr. Fabian then testified . He indicated that he was consulted to
render an opinion on Weaver's psychological status, specifically intoxication
(KRS 501 .080) and the effect on his mental state at the time of the offense. He
reported talking with Weaver, Weaver's ex-girlfriend, Weaver's sister, and the
man from the bar who observed and testified to Weaver's drinking heavily and
taking substances at the bar . Dr. Fabian also testified to reviewing the police
report He stated that Weaver had long-time problems with substance
dependence, post-traumatic stress disorder, and had poor coping mechanisms .
He found no evidence of current malingering.
Based on discussions with Weaver and examining other's reports and
interviews, Dr. Fabian found Weaver had consumed cocaine, alcohol, Xanax,
and Oxycontin on the night in question, resulting in likely substance
intoxication . He testified that the specific substances Weaver ingested could
2
First-degree burglary is a Class B felony. KRS 511 .020(2) . Sentences of ten to
twenty years' imprisonment are permitted for Class B felony convictions.
KRS 532 .060(2)(b) .
have affected his memory and orientation . Dr . Fabian opined that Weaver's
ingestion of these substances increased the risk that Weaver did not remember
or understand or know what he was doing at the time of the incident at the
victims' home .3
.;
v . ,r . .
The jury then recommended the minimum sentence of twenty years'
imprisonment for the PFO 1 conviction .4 The trial court entered judgment in
accordance with the jury's verdict and sentencing recommendations, and this
appeal followed.
II . ANALYSIS .
Weaver argues that the judgment must be reversed because the trial
court prevented him from presenting during the guilt phase of the trial
Dr. Fabian's expert testimony supporting his intoxication defense . We agree.
Although neither party cites KRS 501 .080, that statute sets forth when
intoxication constitutes a valid defense to a crime:
Intoxication is a defense to a criminal charge only if such condition
either:
(1)
Negatives the existence of an element of the offense; or
This is also noted in Dr. Fabian's written report, which was admitted into the
record during the PFO penalty phase:
Some of the evidence gathered in this case substantiates Mr. Weaver's intoxicated
state pursuant to relevant case law. If this is true, the combination and interaction
of the specific substances and the intensity and duration of his use that day would
impair his actions and place him at risk for an amnesiac blackout type episode .
Further, this intoxicated state would place Mr. Weaver at risk to not be aware or
know what he was doing at the time of the offense.
(Footnote omitted) .
One convicted of PFO 1 with of an underlying Class B felony conviction is subject
to a minimum of twenty years' imprisonment. KRS 532.080(6)(a) .
(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.
Weaver was charged and convicted- of first-degree.- burglary, a crime that
consists of the following elements under KRS 511 .020(l) :
A person is guilty of burglary in the first degree when, with
the intent to commit a crime, he knowingly enters or remains
unlawfully in a building, and when in effecting entry or while in the
building or in the immediate flight therefrom, he or another
participant in the crime :
(a)
Is armed with explosives or a deadly weapon ; or
(b)
Causes physical injury to any person who is not a
participant in the crime; or
(c)
Uses or threatens the use of a dangerous instrument against
any person who is not a participant in the crime .
Because first-degree burglary requires the specific intent "to commit a crime[,)"
voluntary intoxication is a valid defense to this crime when it results in the
defendant's not having that specific intent to commit a crime because that
would "negative[] the existence of an element of the offense . . .
."5
In his brief to this Court, Weaver does not deny unlawfully entering the
victims' residence or taking their cash and sunglasses or threatening to use a
gun. The Commonwealth does not deny that Weaver was intoxicated when
apprehended for the alleged burglary. And Weaver does not claim to be a
KRS 501 .080(l) . As noted by BLACK'S LAw DICTIONARY (8th ed. 2004) in its
definitions of intoxication: "Voluntary intoxication is not a defense to a generalintent crime, but may be admitted to refute the existence of a particular state of
mind for a specific-intent crime."
victim of involuntary intoxication . So the main question in dispute was
whether Weaver, as a result of his voluntary intoxication, was unable to form
the intent required as an element of first-degree burglary: namely, having "the
intent to -commit a crime" when unlawfully entering another's . property . 6
The trial court abused its discretion? in not allowing Weaver to present
Dr. Fabian's testimony during the guilt phase. Voluntary intoxication is a
possible defense to a crime, as recognized by statute in KRS 50 1 .080 . If the
jury accepts this defense by finding that because of voluntary intoxication, the
defendant did not form the intent required as an element of the offense, then
the jury acquits the defendant of the offense, rather than merely reducing the
punishment .
The trial court seemed to recognize this to a degree because it instructed
the jury on voluntary intoxication . But the trial court erred by relegating
Weaver's expert testimony on this statutory defense to the penalty phase of the
proceedings. The expert's opinion about Weaver's intoxication was clearly
relevant to a determination of guilt and not simply to setting a penalty.
The trial court mistakenly relied on Tate to support excluding
Dr. Fabian's testimony. Tate concerned an insanity defense, not an
KRS 511 .020 defines the elements of first-degree burglary as including the element
that: "with the intent to commit a crime, he knowingly enters or remains
unlawfully in a building . . . ." We note that second- and third-degree burglary
similarly require the same intent to commit a crime when unlawfully entering or
remaining in a dwelling or other building . See KRS 511 .030 ; KRS 511 .040 .
See Berryman v. Commonwealth , 237 S.W.3d 175, 179 (Ky. 2007) (trial court's
decision to admit or exclude evidence should only be reversed if it abused its
discretion) .
intoxication defense.8 Tate held that physical addiction was not a mental
disease or defect that would render a defendant not criminally responsible for
his crime.9 The Tate court carefully noted that Tate did not claim he was
under the influence of substances when the crime was committed . 1 0 This is a
key distinction with the instant case in which Weaver indisputably was under
the influence of alcohol and drugs at the time of the incident.
To a certain extent, the trial court's confusion may be understandable
because defense counsel frequently referred to Weaver's intoxication as a
"mental disease or defect." This is language more commonly associated with
insanity defenses than intoxication defenses. The defense even stated that it
was not offered for purposes of KRS 501 .080. But defense counsel also argued
that because of his intoxication, Weaver was unable to understand what was
going on and incapable of forming the required intent. x 1 And Dr. Fabian's
s
Tate, 893 S.W.2d at 369 ("At issue is whether drug addiction is a mental disease,
defect, or illness for purposes of KRS 504.020.") KRS 504 .020(1) provides that: "A
person is not responsible for criminal conduct if at the time of such conduct, as a
result of mental illness or retardation, he lacks substantial capacity either to
appreciate the criminality of his conduct or to conform his conduct to the
requirements of law."
9
Id. at 372 . ("We hold that a mere showing of narcotics addiction, without more,
does not constitute `some evidence' of mental illness or retardation so as to raise
the issue of criminal responsibility, requiring introduction of the expert's
controversial testimony or an instruction to the jury on that issue .").
io Id. ("Appellee's reliance on voluntary intoxication cases is without merit as he does
not claim that he was under the influence of any substance at the time of the
alleged criminal act.") .
Defense counsel also at times argued that because of intoxication, Weaver had a
"diminished capacity" to form the requisite intent for burglary. BLACK'S LAw
DICTIONARY (8th ed. 2004) defines diminished capacity as "[a]n impaired mental
condition-short of insanity-that is caused by intoxication, trauma, or disease
and that prevents a person from having the mental state necessary to be held
responsible for a crime."
10
written report clearly stated that it was prepared to determine whether Weaver
might have a valid intoxication defense under KRS 501 .080. So, despite the
use of imprecise terminology, defense counsel adequately presented the basis
for admitting the expert testimony on the voluntary intoxication defense to the
trial court and preserved this issue for appellate review . 12 Because defense
counsel properly informed the trial court of the defendant's intent to present
Dr. Fabian's expert testimony in the guilt phase of the trial, the issue was
properly preserved for appeal . And we believe the trial court committed
reversible error when it prevented Weaver from presenting Dr. Fabian's
testimony to the jury until after they had decided Weaver's guilt . 13 Because
12
13
Kentucky Rules of Evidence (KRE) 103(a)(2) provides that the issue of a trial court's
ruling excluding evidence is properly preserved for review if "the substance of the
evidence was made known to the court by offer or was apparent from the context
within which questions were asked." Given defense counsel's oral remarks that the
expert testimony was offered to show that Weaver did not know what he was doing
at the time of commission of the offense and the filing of Dr. Fabian's report stating
that he offered an opinion concerning KRS 501 .080 and a voluntary intoxication
defense, this issue was properly preserved under the current version of KRE 103.
(The trial took place in 2008, one year after the current version of KRE 103 became
effective .)
In contrast to earlier versions of KRE 103, the current version does not require the
presentation of avowal testimony to preserve the issue of a trial court's exclusion of
testimony.
See Burnham v. State , 497 So.2d 904, 905 (Fla.App . 1986) (holding that under
Florida precedent, trial court erred in excluding expert testimony on intoxication as
voluntary intoxication was a valid defense to a specific intent crime, and expert
testimony is relevant to a disputed voluntary intoxication defense) . Although we
have held in a collateral appeal that defense counsel's failure to offer expert
testimony on intoxication did not rise to the level of ineffective assistance,
especially in light of lay testimony concerning intoxication, we also acknowledged
in that same case that an expert's opinion testimony on intoxication might
potentially aid a defendant in presenting a voluntary intoxication defense :
"Although it is possible that testimony from an expert might have convinced the
jury that Appellant was even more intoxicated, it is unlikely that this would have
changed the outcome of the trial." Mills v . Commonwealth, 170 S .W.3d 310, 329
this error was properly preserved, we could affirm Weaver's conviction only if
this error was harmless . 14
Weaver argues that the trial court's exclusion of Dr . Fabian's testimony
from the guilt phase deprived him of his constitutional right to _present a
defense. Obviously, the trial court did not completely deprive Weaver of the
opportunity to present an intoxication defense because Weaver was allowed to
present other evidence concerning his intoxication in the guilt phase ; and the
trial court instructed the jury on voluntary intoxication as a defense. While the
trial court's exclusion was error, it is not necessary to our decision to
determine whether this error actually resulted in a constitutional violation .
Consequently, we express no opinion on whether a constitutional violation
occurred here.
Whether or not the error is deemed to be of constitutional magnitude, we
cannot conclude the error was harmless because to find that the expert
testimony would have little or no effect would be sheer speculation. After
Dr. Fabian was allowed to express his opinion in the penalty phase, his
testimony may have had some impact because the jury recommended the
minimum sentence for PFO 1 . Further, Dr. Fabian's testimony was relevant to
14
(Ky. 2005), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d
151, 159 (Ky. 2009)
See RCr 10.26 (reviewing unpreserved issues for palpable error only); RCr 9.24
(even preserved issues do not merit reversal if error "does not affect the substantial
rights of the parties.") .
12
Weaver's intoxication defense 1 5 and potentially helpful to the jury in explaining
how the specific substances ingested may have affected Weaver's intent at the
time of the incident.l6
III . CONCLUSION .
Because the trial court erred by preventing Weaver's presentation of
Dr. Fabian's testimony during the guilt phase, 17 the judgment is reversed ; and
the case is remanded to the trial court for proceedings consistent with this
opinion.
All sitting. Abramson, Noble, Schroder, and Venters, JJ ., concur. Scott,
J., dissents by separate opinion, in which Cunningham, J., joins .
SCOTT, J., DISSENTING : I must respectfully dissent. The fact that one
does not remember the details of a crime does not mean that he or she did not,
at the time, have the intent to commit it. The two are simply not synonymous .
In this instance, the defendant had valuables that he had taken from the
victim's car trunk and used the door opener from the car to enter the house .
Notably, the expert could only add that the "intoxication could have affected his
memory and orientation." Moreover, with respect to the expert's testimony, I
15
16
17
See KRE 401 ("`Relevant evidence' means evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.") .
See KRE 702 (one requirement to admit expert testimony is that the testimony "will
assist the trier of fact to understand the evidence or to determine a fact in
issue . . . ."
Because we reverse solely on this ground, we do not reach the other issue
presented by Weaver-namely, his allegation of prosecutorial misconduct in the
use of a "send a message" statement in penalty phase closing argument .
13
do not believe that the disallowance of such evidence was harmful. While the
defense of intoxication may allow for a defense expert witness, lay persons jurors - fully understand the mood altering effects of mixing drugs and the
resulting intoxication . For these reasons, I believe any error was harmless. I
would thus affirm . Cunningham, J., joins this dissent.
COUNSEL FOR APPELLANT:
Karen Shuff Maurer
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
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
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
