Burton v. Com., No. 2006-SC-000784-MR.

• Decision Date: 29 October 2009
• Docket Number: No. 2006-SC-000784-MR.
• Citation: 300 S.W.3d 126
• Parties: Steve BURTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

300 S.W.3d 126

Steve BURTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2006-SC-000784-MR.

Supreme Court of Kentucky.

October 29, 2009.

As Modified November 2, 2009.

As Modified December 8, 2009.

Rehearing Denied January 21, 2010.

Shannon Renee Dupree, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.

Jack Conway, Attorney General of Kentucky, Bryan Darwin Morrow, Office of the Attorney General, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice SCOTT.

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 on a rural two-lane road. Burton's automobile collided head-on with an automobile approaching from the opposite direction driven by Jeffrey Bartolo. James Boyd was a passenger in Bartolo's automobile. Other than 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 911 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. Travis instructed Burton to remain calm and not to move because movement could make his injuries worse. Burton, however, continued to struggle.

When Burton finally extricated himself, his fractured arm flopped unnaturally "from side to side." He continued, however, to insist that he was not injured. Travis then tried to walk Burton across the road to the ambulance, but Burton returned to his car. He continued to wander "back and forth" from the car to the ambulance. At one 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 automobile. Officer Sims, however, noted in his report that Burton did not 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, the urinalysis tested positive for the presence of marijuana and cocaine but the tests could not determine the concentration of these substances in Burton's system or when he had ingested the substances.

Boyd and Bartolo meanwhile were not interviewed at the scene as both were airlifted to the hospital. Officer Sims, however, noted that both may have been under the influence of alcohol.¹ 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 guilty of second-degree manslaughter and second-degree assault, as well as operating a motor vehicle on a suspended license. Burton was sentenced to a total of twenty (20) years imprisonment in accordance with the jury's recommendation of ten (10) years on the second-degree manslaughter conviction and ten (10) years on the second-degree assault conviction, to run consecutively.

II. ANALYSIS.

A. The admission of the urinalysis results.

Burton filed a motion in limine 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 itself), 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 whether Mr. Burton was impaired at the time of the accident.

According to Dr. Martinez, a blood test is the key indicator for whether or not there is impairment and thus correlates much better 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 Springer v. Commonwealth, 998 S.W.2d 439, 446 (Ky. 1999) ("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 matters were brought to the 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 they related to Burton's prior DUI, which gave rise to the driving on a suspended license charge and was vocalized as the KRE 404 problem, rather than the urinalysis results.³ In reality, the 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 ...