Epperson v. Commonwealth

• Decision Date: 09 May 2014
• Docket Number: NO. 2013-CA-000431-MR,2013-CA-000431-MR
• Parties: BRIAN P. EPPERSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
• Court: Kentucky Court of Appeals

BRIAN P. EPPERSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2013-CA-000431-MR

Commonwealth of Kentucky Court of Appeals

RENDERED: MAY 9, 2014

TO BE PUBLISHED

APPEAL FROM POWELL CIRCUIT COURT

HONORABLE FRANK A. FLETCHER, JUDGE

ACTION NO. 12-CR-00052

OPINION

AFFIRMING IN PART,

REVERSING IN PART,

AND REMANDING

BEFORE: JONES, MAZE, AND MOORE, JUDGES.

MAZE, JUDGE: Appellant, Brian Epperson, appeals from his conviction and sentence following his trial in Powell Circuit Court. Specifically, he alleges that the trial court abused its discretion by denying his motion for a continuance following the Commonwealth's amendment of the indictment against him on the first day of trial. Epperson also argues that the trial court abused its discretion infailing to suppress toxicology test results, that a portion of Kentucky's DUI statute violates equal protection, and, in the alternative, that the cumulative effect of these defects in his trial resulted in prejudice against him.

As we conclude that justice required the trial court to grant Epperson's Motion to Continue, we reverse and remand this case for a new trial. Additionally, we affirm the trial court's determinations concerning the admissibility of expert testimony and Epperson's equal protection concerns surrounding KRS 189A.010.

Background

The facts of this case are not in dispute. On November 14, 2011, the vehicle Epperson was driving crossed the centerline of a two-lane road in Powell County and collided with a vehicle occupied by Donald Tharp and a female passenger. As a result of the collision, Donald Tharp died and his passenger was injured. Epperson suffered only minor injuries and refused medical treatment at the scene of the accident. However, he subsequently submitted to field sobriety tests as well as blood and urine testing in the hours following the accident. Following these tests, authorities arrested Epperson and, on March 7, 2012, a grand jury indicted him on the charges of Murder, fourth-degree Assault, and DUI, first offense. The latter charge alleged, pursuant to KRS¹ 189A.010(1)(c), that the accident had occurred while Epperson was "under the influence of [a] substance or combination of substances which impaired his driving ability...."

On January 3, 2013, twelve days prior to trial, Epperson filed a Motion to Suppress the toxicology test results for a blood sample taken after the accident. The motion argued that the results of the blood test were irrelevant to the charge of impairment under KRS 189A.010(1)(c) because "[t]he quantity of some of the drugs listed ... such as methadone[] are not displayed." Therefore, the toxicology results provided no evidence regarding the degree of impairment. Following a January 9 hearing, the trial court denied this motion.

After this hearing, in preparation for trial, Epperson's trial counsel spoke with Chad Norfleet, the Kentucky State Police Laboratory Specialist who analyzed Epperson's blood sample. During this conversation, both the Commonwealth and counsel for Epperson learned that the control samples² used in analyzing Epperson's blood were left sitting in the test instrument for four days prior to being tested. Following this, and following the test of Epperson's blood on the same instruments, the test results did not indicate the levels of two substances, methadone and diazepam; only that both substances were present. On these grounds, prior to jury selection and opening statements, Epperson filed a Supplemental Motion to Suppress, asking the trial court to find the results of the blood test, and Norfleet's testimony regarding them, to be unreliable and inadmissible pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). During a meeting on the eve of trial, the parties discussed this and other pre-trial motions with the trial court in chambers and on the record. The trial court denied the Motion to Suppress.

Also during this pre-trial meeting, seemingly in response to Epperson's Motion to Suppress, the Commonwealth moved to amend the portion of the indictment alleging a violation of KRS 189A.010(1)(d) instead of the original violation under subsection (c) of the same statute. Whereas subsection (c) required the Commonwealth to prove that at least one substance caused Epperson's actual impairment at the time of the accident, the proposed amended charge under subsection (d) required that the Commonwealth prove such a substance was merely present in his bloodstream. Epperson's counsel objected to the Commonwealth's motion; however, the trial court granted it, amended the indictment by hand, and proceeded with jury selection.

The morning after amendment of the indictment, immediately prior to the beginning of proof, counsel for Epperson moved the trial court for a continuance, arguing that the amendment and resulting change in defense strategy prejudiced Epperson's defense and required a continuance under RCr³ 6.16. Counsel further argued that subsection (d) of the DUI statute violated equal protection because it unjustifiably distinguished between those who had a prescription for certain substances and those who did not. After hearing these arguments, the trial court denied Epperson's Motion to Continue, stating, interalia, "We worked awful hard yesterday getting a jury...Since we've come this far, we might as well go ahead." Immediately following the denial of the Motion to Continue, the Commonwealth called its first witness. Also, following the denial of the motion, Epperson's counsel informed the defense's expert witness, who was en route from Ohio, that his services were no longer needed.

During trial, several witnesses testified, including the officers who responded to the accident and administered the field sobriety tests, as well as Norfleet, who testified regarding the toxicological results of Epperson's blood test. Prior to Norfleet's testimony, Epperson's trial counsel renewed his objection to the introduction of the results and Norfleet's testimony regarding them. Once again, the trial court overruled this objection.

Norfleet first testified to the blood sample's chain of custody. He also testified that his test of Epperson's blood sample revealed the presence of four substances: methadone, diazepam, nordiazepam, and oxycodone. The results did not quantify the levels of methadone and diazepam because of the anomaly regarding the control samples. Norfleet stated that he was nonetheless "confident" that methadone and diazepam were present in Epperson's blood. On cross-examination, Norfleet clarified that the tests run by the control samples did not return amounts of methadone and diazepam within the reasonable or acceptable range established by the known quantities present in each; therefore, he did not feel comfortable stating the quantities, only the presence, of those substances.

Also during Norfleet's testimony, he referenced, and the Commonwealth sought to introduce a document of which neither party was aware before trial. What became Commonwealth's Exhibit 23 was a copy of various labels from items contained within the laboratory kit used to test Epperson's blood sample. Among other information, this document showed an expiration date of June 30, 2011, nearly seventeen months prior to the accident. Other than his acknowledgement of the document, Norfleet did not address the expiration date in his direct testimony or on cross-examination.

Following trial, the trial court instructed the jury pursuant to the amended indictment, after which the jury found Epperson guilty of second-degree Manslaughter, fourth-degree Assault, and DUI, first offense. For these crimes, the jury recommended, and the trial court ordered, a sentence of six years' imprisonment and fines totaling $1,000. This appeal follows.

Analysis

Epperson appeals his conviction and sentence on four grounds. He first contends that the trial court abused its discretion in denying his motion for a continuance following amendment of the indictment on the day the trial was scheduled to begin. He also contends that it was an abuse of the trial court's discretion to refuse to suppress the results of the laboratory testing conducted on Epperson's blood, given various information which came to light regarding the test kit and the anomalies which occurred during the testing of his blood. We elect toaddress these issues first, before addressing Epperson's claims regarding equal protection and, if necessary, cumulative error.

I. RCr 6.16 and Epperson's Motion to Continue

RCr 6.16 governs the amendment of an indictment and when a continuance must be granted following an amendment. "RCr 6.16 is a lenient rule which provides for the amendment of an indictment at any time before the verdict and upon a finding that no additional or different offense has been charged and that the substantial rights of the defendant are not prejudiced." Schambon v. Commonwealth, 821 S.W.2d 804, 810 (Ky. 1991)). While it is true that RCr 6.16 does not require the Commonwealth to elect, or commit to, a subsection of a statute under which it will prosecute a defendant, Commonwealth v. Mattingly, 98 S.W.3d 865, 868 (Ky. App. 2002) (citing to Commonwealth v. Wirth, 936 S.W.2d 78 (Ky. 1996)), it also does not require a defendant to rebut evidence of which he has not been given notice. Wolbrecht v. Commonwealth, 955 S.W.2d 533, 537 (Ky. 1997). Therefore, the rule itself provides, "[i]f justice requires . . . the court shall grant the defendant a continuance when such an amendment is permitted." RCr 6.16.

A. Standard of Review

In reviewing Epperson's Motion to Continue, we must remember that whether a continuance is appropriate in any given case is the trial judge's prerogative. Brutley v. Commonwealth, 967 S.W.2d 20, 23 (Ky. 1998). Therefore, such a decision lies squarely within "the sound discretion of the trial judge, andunless it appears that he has abused that discretion, his determination will not be disturbed on...