Morgan v. Shirley, 89-5992
| Decision Date | 27 January 1992 |
| Docket Number | No. 89-5992,89-5992 |
| Citation | 958 F.2d 662 |
| Parties | Mark Alan MORGAN, Petitioner-Appellant, v. Fred SHIRLEY, Barren County Jailer and Frederick J. Cowan, Kentucky Attorney General, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Thomas W. Davis, Glasgow, Ky. (argued and briefed), for Mark Alan Morgan.
David A. Sexton, Asst. Atty. Gen., Office of the Atty. Gen. of Kentucky, Frankfort, Ky., Danny J. Basil, Glasgow, Ky., for Fred Shirley.
David A. Sexton, and John Gillig, (argued and briefed), Asst. Attys. Gen., Chris Gorman, Atty. Gen., Office of the Atty. Gen. of Kentucky, Frankfort, Ky., for Frederick J. Cowan.
Before NELSON, Circuit Judge, and LIVELY and WELLFORD, Senior Circuit Judges.
Section 189A.010 of the Kentucky Revised Statutes makes it a misdemeanor to drive a motor vehicle while under the influence of alcohol. Prior to statutory revisions that became effective last July, a companion statute, KRS 189.520, created a rebuttable evidentiary presumption that a driver with a blood alcohol concentration of 0.10 percent or more at the time of testing was under the influence of intoxicating beverages.
The case at bar is a habeas corpus matter that involves Kentucky's DUI statutes as they existed before the 1991 amendments. The petitioner--who was found to have a blood alcohol content of 0.14 percent some 91 minutes after driving a pickup truck off the road--went to trial in a Kentucky state court on a misdemeanor charge of driving under the influence. During the presentation of the Commonwealth's case, and in accordance with established Kentucky practice, the statutory presumption was read to the jury as evidence. The jury ultimately returned a verdict of guilty, and the petitioner was sentenced to pay a fine and spend a week in jail. The habeas corpus petition was filed in federal court at a time when the petitioner was in custody and after he had exhausted his rights of appeal in the state court system.
Although the petitioner goes through the motions of challenging the existence of a rational connection between the predicate fact (a blood alcohol content of 0.10 percent or more) and the presumed fact ("the defendant was under the influence of intoxicating beverages"), the question he argues most vigorously is whether the use of the statutory presumption as evidence required him to assume the burden of persuasion on the key element in the case. If the burden of persuasion was shifted to the petitioner, there was clearly a violation of the Due Process Clause of the Fourteenth Amendment.
The district court, which denied the habeas petition, held that a reasonable jury would have understood that the burden of persuasion remained with the Commonwealth. We agree, and we shall affirm the denial of the writ.
At 11:15 p.m. on Friday, April 24, 1987, a Ford pickup truck driven by the petitioner, Mark Alan Morgan, left the road and crashed through a fence. The accident took place on Country Club Lake in Barren County, Kentucky, some 2 1/2 miles north of the municipality of Glasgow.
A Kentucky state trooper named Kent Thrasher was dispatched to investigate. Mr. Morgan was not present when the trooper arrived at the scene of the accident, but his brother-in-law, John Glass, showed up soon thereafter. Mr. Glass explained that the pickup truck belonged to him and that he had let Mr. Morgan borrow it.
The trooper then made contact with Mr. Morgan at the home of a woman who lived four or five miles away. Morgan admitted that he had been driving the pickup truck. He denied having consumed any alcoholic beverages since the accident, but it was obvious that he had been drinking at some point in the evening; Trooper Thrasher (a 20-year state police veteran with extensive experience in DUI cases) noted that Mr. Morgan was unsteady on his feet, almost to the point of staggering, and that he smelled of alcohol. The trooper administered a breathalyzer test, and a computerized report of the test results, issued at 12:46 a.m. on Saturday, April 25, indicated that Mr. Morgan had a blood alcohol content of 0.14 percent at the time of the test.
The trooper gave Mr. Morgan a citation for violating KRS 189A.010. Subsection (1) of that statute, as in effect at the time, provided that "[n]o person shall operate a motor vehicle anywhere in this state while under the influence of alcohol or any other substance which may impair one's driving ability." 1 The citation set forth some of the information summarized above, and it also indicated that Mr. Morgan was 19 years old, stood 5'10" in height, and weighed 195 pounds.
When the case went to trial before a jury in the Barren County District Court, Trooper Thrasher took the stand to describe his investigation, his observations of Mr. Morgan, the administration of the breathalyzer test, and the results of the test. The trooper acknowledged that the concentration of alcohol in Mr. Morgan's blood could have risen or fallen during the interval between the operation of the motor vehicle and the administration of the breathalyzer test, but he told the jury that he thought Mr. Morgan was intoxicated while driving.
After the results of the breathalyzer test had been placed in evidence, and over the objection of Mr. Morgan's counsel, the court read to the jury the complete text of KRS 189.520(3) and (4). Before reading the statute, the court told the jury to "consider this as evidence in the case."
What subsection (3) said, in part, was that in a prosecution under KRS 189A.010, Subsection (4) went on to say that the provisions of subsection (3) "shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether the defendant was under the influence of intoxicating beverages." The full text of the statutory language read to the jury as evidence is set forth as an appendix to this opinion.
Trooper Thrasher was cross-examined by counsel for Mr. Morgan, and the Commonwealth rested its case after the completion of the trooper's testimony. Mr. Morgan then moved for a directed verdict. The court denied the motion. Mr. Morgan rested without presenting any additional evidence, but renewed his motion for a directed verdict. The renewed motion was denied as well.
Prior to the closing arguments of counsel, the court gave a general charge to the jury. The jury was instructed, among other things, that the defendant was to be found guilty "if, and only if, you believe from all the evidence beyond a reasonable doubt ...
In keeping with a line of Kentucky cases that includes Botnick v. Commonwealth, 266 Ky. 419, 99 S.W.2d 188 (1936), Mabe v. Commonwealth, 279 Ky. 432, 130 S.W.2d 805 (1939), Jones v. Commonwealth, 291 Ky. 719, 165 S.W.2d 566 (1942), and Marcum v. Kentucky, 483 S.W.2d 122 (Ky.1972), the jury charge included no comment on the weight or effect of any portion of the Commonwealth's evidence, including the statutory presumption. It goes without saying, in Kentucky, that questions of the weight of the evidence, like questions of credibility, are for the jury; it is considered unnecessary for Kentucky trial courts to comment on such matters. Brown v. Commonwealth, 789 S.W.2d 748, 750 (Ky.1990); Smith v. Commonwealth, 8 S.W. 192, 193 (Ky.1888).
We have not been furnished a complete transcript of the charge to the jury, but we presume that the trial court complied with Rule 9.56, Ky.R.Crim.P. "In every case," Rule 9.56 says, the jury shall be instructed along these lines:
Mr. Morgan has never asserted that the trial court failed to give this required charge, or that the court's instructions were otherwise defective.
After the jury returned its verdict, the court fined Mr. Morgan $350 and ordered that he be imprisoned in the county jail for seven days. We have not been told whether the conviction represented a second offense, but we note that Mr. Morgan received the minimum sentence that could be imposed for a second offense. KRS 189A.010(2)(b). In his brief on appeal, Mr. Morgan says that his motor vehicle operator's license was revoked for a period of one year. Since July of 1984, KRS 189A.070(1) has provided for a six-month revocation of the operator's license of an adult convicted of a DUI charge under KRS 189A.010 for the first time. Only for a second offense does the statute provide for a 12-month revocation.
Mr. Morgan appealed his conviction to the Barren Circuit Court. There he argued, among other things, that the results of the breathalyzer test were inadmissible because the test was administered one hour and thirty-one minutes after the operation of the motor vehicle; that ingestion of alcohol on a full stomach can affect the rate of increase in blood alcohol content; that the jury had no way of knowing whether his blood alcohol level was rising or falling at the time of the breathalyzer test; that this, coupled with the trial court's introduction...
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