Commonwealth v. Burton
| Decision Date | 15 March 2013 |
| Docket Number | NO. 2011-CA-002139-MR,2011-CA-002139-MR |
| Parties | COMMONWEALTH OF KENTUCKY APPELLANT v. STEVEN BURTON APPELLEE |
| Court | Kentucky Court of Appeals |
COMMONWEALTH OF KENTUCKY APPELLANT
v.
STEVEN BURTON APPELLEE
NO. 2011-CA-002139-MR
Commonwealth of Kentucky Court of Appeals
RENDERED: MARCH 15, 2013
BEFORE: CAPERTON, COMBS, AND DIXON, JUDGES.
CAPERTON, JUDGE: The Commonwealth of Kentucky appeals from an order of the Hickman Circuit Court disallowing the testimony of Dr. Gregory Davis and State Police Trooper Kyle Nall in the trial of Steven Burton. Finding no reversible error, we affirm.
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In his first trial, Burton was convicted of second-degree manslaughter, second-degree assault, and operating a motor vehicle on a suspended license. On appeal, the Kentucky Supreme Court reversed Burton's manslaughter and assault convictions in Burton v. Commonwealth, 300 S.W.3d 126 (Ky. 2009), (Burton I ) finding reversible error in the admission of Burton's urinalysis results and in the admission of the drug recognition testimony. The facts set forth in Burton I provide:
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
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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.
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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. 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.
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.
Burton at 130-131(footnotes omitted).
As noted, the Kentucky Supreme Court found reversible error in the admission of the urinalysis results and in the in the admission of the drug recognition testimony. On remand, the Commonwealth provided notice that it would call Dr. Gregory James Davis, a medical doctor from the University of Kentucky who is a specialist in the field of toxicology. Burton objected to the
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witness. After avowal testimony from Dr. Davis, the trial court ordered that Dr. Davis could not testify at trial because: (1) he had not interviewed Burton; and (2) his testimony would be tainted by his knowledge of the urinalysis that was excluded and found inadmissible by the Kentucky Supreme Court.
The Commonwealth also gave notice that it intended to call State Police Trooper Kyle Nall as a drug recognition expert. According to the Commonwealth, Trooper Nall would testify regarding factors used to determine if a person was impaired, but would not opine about Burton's level of impairment. The court did not hold a hearing regarding Trooper Nall's testimony and ordered that his testimony was inadmissible because: (1) he had never interviewed Burton either; and (2) any testimony he gave would not be outside the common knowledge of the jury. It is from this order that the Commonwealth now appeals.
On appeal, the Commonwealth presents two arguments, namely, (1) the trial court abused its discretion in excluding Dr. Davis's testimony because experts are allowed to rely on inadmissible evidence and third-party information in formulating their opinions; and (2) the trial court abused its discretion by failing to hold a Kentucky Rules of Evidence (KRE) 702 hearing on the admissibility of testimony from Trooper Nall pursuant to Burton I.
In response, Burton argues: (1) that the trial court properly excluded Dr. Davis's testimony; and (2) that the Commonwealth never requested a Daubert1 hearing for Trooper Nall, and that the trial court did not abuse its discretion in
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excluding his testimony. With these arguments in mind, we turn to our applicable jurisprudence.
At issue is whether the trial court abused its discretion in disallowing expert testimony. We review a trial court's ruling regarding the admission or exclusion of evidence for abuse of discretion. See Clephas v. Garlock, Inc., 168 S.W.3d 389, 393 (Ky. App. 2004); Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000); Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Goodyear Tire and Rubber Co. at 581, citing English at 945.
KRE 702 permits testimony by an expert witness when:
If scientific, technical, or other specialized knowledge will assist...
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