Burchett v. Com., 2000-SC-0179-DG.

• Decision Date: 23 January 2003
• Docket Number: No. 2000-SC-0179-DG.,2000-SC-0179-DG.
• Citation: 98 S.W.3d 492
• Parties: George H. BURCHETT, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

98 S.W.3d 492

George H. BURCHETT, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2000-SC-0179-DG.

Supreme Court of Kentucky.

January 23, 2003.

Rehearing Denied March 20, 2003.

Irvin Halbleib, Jr., Louisville, Counsel for Appellant.

A.B. Chandler, III, Attorney General of Kentucky, Dennis W. Shepherd, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.

Opinion of the Court by Justice JOHNSTONE.

As the result of a fatal automobile collision, Appellant, George Burchett, Jr., was convicted by a Green Circuit Court jury of reckless homicide, for which he received a sentence of five years' imprisonment. Burchett appealed his conviction to the Court of Appeals and that court affirmed. We granted discretionary review to consider the only issue raised on appeal: whether evidence that a defendant smoked marijuana on a daily basis is admissible to prove that he smoked marijuana on the day of the collision. For the reasons discussed below, we hold this evidence to be inadmissible; accordingly, we reverse and remand this case to the circuit court.

On December 12, 1997, Sherman Darnell was killed when his vehicle was struck by Appellant's vehicle. Mr. Darnell, traveling on highway 61 in Green County, Kentucky, had the right of way and was not required to stop at the Bloyds Crossing intersection of highway 569. Appellant, traveling on highway 569, failed to stop at the intersection and caused the collision. Although Appellant initially denied running the stop sign, brake marks conclusively indicate that he skidded through the intersection. At the time of the collision, Appellant was on his way to the Taylor County Hospital to visit his girlfriend, Melissa Grider, who had given birth to their child the previous day. Appellant and Grider worked together on the farm owned by David and Dorothy Scott. On the afternoon of the collision, Grider telephoned the Scott residence and left a message for Appellant to come to the hospital as soon as he finished work. Fearing for the health of his child, Appellant left for the hospital after he received the message. The fatal collision occurred shortly afterward, around 3:40 p.m.

Soon after the collision, police trooper Whitlock began his investigation. Trooper Whitlock found an unopened, one-half gallon bottle of vodka in Appellant's vehicle. When questioned, Appellant denied that he had consumed any alcohol that day. Appellant was then taken to Taylor County Hospital, where he was treated for his minor injuries. During his treatment and evaluation at the hospital, Appellant told the emergency room nurse that he drinks "anywhere from one-half to three-fourths of a gallon a day of vodka" and that he smokes marijuana daily, "one joint in the morning and one at night." To the nurse, Appellant denied smoking marijuana the day of the collision. But Appellant later told a lab tech that he smoked "this morning." The treating physician's notes support the lab tech's version of events. A lab test of Appellant's blood later confirmed that Appellant drank no alcohol before the collision. A drug screen of Appellant's urine sample revealed the presence of three substances: benzodiazepines (e.g., Valium), opiates (e.g., Tylenol 3), and tetrahydrocannabinol (THC) (marijuana). Unfortunately, the blood sample was insufficient to test for these drugs.

Appellant was indicted for second-degree manslaughter. This offense requires proof of a wanton mental state. One way to prove wantonness is to show that the defendant in a vehicle-homicide case was driving while intoxicated. See Estep v. Commonwealth, Ky., 957 S.W.2d 191 (1997). Consequently, the prosecutor intended to show that Appellant was under the influence of marijuana or other drugs at the time of his collision with Mr. Darnell. While Appellant did not contest admission of evidence that he smoked a marijuana cigarette the day before the collision, Appellant did contest the admission of any evidence that he had a habit of drinking alcohol or smoking marijuana everyday. Relying primarily on KRE 404(b) and KRE 403, Appellant made a motion in limine to suppress such habit evidence. Just before trial, the court ruled that evidence concerning Appellant's daily drinking would not be admitted. But the court also ruled that evidence of Appellant's daily use of marijuana was admissible.

This evidence was first introduced during the prosecution's direct examination of the emergency room nurse, who read the notes she took after assessing Appellant in the ER: "Patient states I smoke one joint in the morning and one at night." The nurse later read the physician's notes: "[Patient a]dmits to one joint this morning. Two joints daily." Later, Appellant admitted on direct examination that he told a hospital employee that he usually smoked a "joint" at night and in the morning. Appellant also admitted smoking marijuana the day before the collision and taking Tylenol 3 and Valium the day before, and the day of, the collision. Appellant testified that he has had spinal bifida since he was a child and he uses the Tylenol 3 and Valium — for which he does not have a prescription — to ease the muscle spasms in his leg and the swollen joints in his back. Appellant further admitted that he gave conflicting statements to hospital personnel about whether he smoked marijuana the morning of the collision. But despite his admitted daily marijuana usage, and his conflicting statements at the hospital, at trial he denied that he smoked marijuana the morning of the collision.

Appellant explained that he accompanied his girlfriend to the hospital to induce labor at 5:00 a.m. on December 11. He smoked marijuana while she drove. He stayed at the hospital all day, save one trip to Wal-Mart for baby clothes, and spent the night at the hospital. The next day, the day of the collision, he left the hospital around 6:30 a.m. to go directly to work. He later testified that if he had marijuana that morning, he probably would have smoked it, but he did not. Concerning his inconsistent statements, Appellant testified: "I told somebody that I had smoked some weed earlier [the morning of the collision] but it was the day before. It was on the 11th when I smoked the weed because I didn't have none [on the 12th]." On cross-examination the prosecutor explored Appellant's marijuana use in depth, asking questions like: "[At what age] did you start smoking?" "What's your normal consumption?" The prosecutor finally concluded: "You're just pretty much a one joint morning [sic] and one joint at night, that's just your habit."

The jury was instructed on second-degree manslaughter and reckless homicide. Appellant was convicted of the lesser offense, reckless homicide. He appealed to the Court of Appeals, and now this Court, decrying the admission of evidence of his daily marijuana use. Appellant argues that the evidence was habit evidence, which has been inadmissible in Kentucky courts for at least a century. See Chesapeake & O Ry. Co. v. Riddle's Adm'x, Ky., 72 S.W. 22 (1903).

In Louisville & N.R. Co. v. Taylor's Adm'r, Ky., 104 S.W. 776 (1907), it was held: "[N]either side can give in evidence what the custom or practice of either of the parties is. The question is not what they were accustomed to do, but what they did at the time in controversy." This reasoning was subsequently affirmed decades later in Cincinnati, N.O. & T.P. Ry. Co. v. Hare's Adm'x, 297 Ky. 5, 178 S.W.2d 835 (1944), overruled on other grounds, Louisville & N.R. Co. v. Fisher, 357 S.W.2d 683 (1962). In 1990, the General Assembly sought to permit habit evidence when it enacted KRS 422A.0406, which would have created a state counterpart to the federal rule permitting habit evidence. See FRE 406. But KRS 422A.0406 was subject to the approval of this Court and, consistent with our longstanding case law, we rejected that legislation, which was subsequently repealed. 1992 Ky. Acts, ch. 324, § 30. This judicial aversion to habit evidence lead Professor Lawson to accurately remark: "The appeals courts of Kentucky have not looked with favor upon evidence of habit. Such evidence has consistently been declared to be inadmissible under Kentucky law." Robert G. Lawson, The Kentucky Evidence Law Handbook, § 2.35, at 116 (3d ed. Michie 1993). Indeed, as recently as 1994, this Court approved of the reasoning in Louisville & N.R. Co. See Johnson v. Commonwealth, Ky., 885 S.W.2d 951 (1994).

Despite the unanimity of our past decisions, we consider the issue anew. Defining the subject matter is a natural starting point, though, as discussed in the concurring opinion, that is no mean feat. In his treatise on the law of evidence, McCormick attempted the task, both defining "habit" and distinguishing it from "character":

Character and habit are close akin. Character is a generalized description of one's disposition, or of one's disposition in respect to a general trait, such as honesty, temperance, or peacefulness. "Habit," in modern usage, both lay and psychological, is more specific. It describes one's regular response to a repeated specific situation. If we speak of character for care, we think of the person's tendency to act prudently in all the varying situations of life, in business, family life, in handling automobiles and in walking across the street. A habit, on the other hand, is the person's regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time, or of giving the hand-signal for a left turn, or of alighting from railway cars while they are moving. The doing of habitual acts may become semi-automatic.

FRE 406 Advisory Committee's Note (1972) (quoting McCormick, Evidence, § 162, at 340 [now see John W. Strong, 1 McCormick on Evidence, § 195, at 584-85 (5th ed. West 1999)]). The admissibility of character evidence in Kentucky is governed by KRE 404(a) and such evidence is...