*1 identifica- bility of Faith’s and Bennett’s BURCHETT, George Jr., Appellant, him, very H. jury may well have
tions a reached different verdict.
III. Conclusion Kentucky, COMMONWEALTH exclusion Dr. Baker’s
The blanket Appellee. in- testimony due to the trial court’s 2000-SC-0179-DG. No. inad- testimony correct belief that her se, per missible and its erroneous relevan- Kentucky. Supreme Court 702 and cy determination under KRE conversely, KRE 403. This does not mean Jan. however, testimony that the whole of her 20, 2003. Rehearing Denied March trial for would been admitted but Rather, re- question court error. depends great
mains to be answered and case. upon facts of
deal not fact-finding appropriate
Because Court,
function of this and because the inadmissibility per ruling
trial court’s se consider likely fully
most caused it testimony, admissibility of Dr. Baker’s factors, if
we decline to determine what Dr. allowed
any, Baker should have been more testify appropriate to. It is
remand this case to the Jefferson Circuit relevancy and reli- to determine
Court
ability eyewitness-identification of expert
testimony upon KRE 702 based under record, likely most will result
proper which hearing
from issue. Should or all of the
trial court determine admissible, it vacate
testimony is shall order a
judgments against Christie and trial.
new above, set we
For the reasons forth Appeals and remand
reverse Circuit Court
this case to Jefferson opinion with this
proceedings consistent COOPER, GRAVES, C.J.;
LAMBERT, STUMBO,
KELLER, JJ., concur.
WINTERSHEIMER, J., concurs only.
result
highway
stop
failed to
at the intersec-
Although
tion and caused the collision.
Appellant initially
running
stop
denied
sign,
conclusively
brake marks
indicate
through
that he skidded
the intersection.
collision,
At
Appellant
the time of the
way
Taylor County Hospital
on his
to the
Grider,
girlfriend,
visit his
Melissa
who
given
had
to their child the previous
birth
day. Appellant
togeth-
and Grider worked
by
er on the farm
David
owned
and Doro-
thy
Scott. On
afternoon of the colli-
sion,
telephoned
Grider
the Scott residence
message
Appellant
and left a
for
to come
Halbleib, Jr., Louisville,
Irvin
Counsel
hospital
to the
as soon as he finished work.
for Appellant.
child,
Fearing
Appel-
for the health of his
Chandler, III,
A.B.
Attorney
General
lant left
the hospital
for
after he received
Kentucky,
Shepherd,
Dennis W.
Office of
message.
The fatal collision occurred
General,
Attorney
Criminal Appellate Divi-
afterward,
shortly
p.m.
around 3:40
sion, Frankfort, Counsel for Appellee.
collision, police trooper
Soon after the
began
investigation.
Whitlock
his
Trooper
Opinion of the
by
Justice
unopened,
gal-
Whitlock found an
one-half
JOHNSTONE.
lon bottle of
in Appellant’s
vodka
vehicle.
As the result of a fatal automobile colli-
questioned,
When
Appellant denied that he
sion,
Burchett, Jr.,
Appellant, George
had
day. Ap-
consumed
alcohol that
convicted
a Green
jury
Circuit Court
of pellant
Taylor County
was then taken to
homicide,
reckless
for which he received a Hospital, where he was treated for his
years’
sentence of five
imprisonment.
injuries. During
minor
his treatment and
Burchett appealed his conviction to the
evaluation at
hospital, Appellant
told
Appeals
Court of
and that court affirmed.
drinks
emergency
room
nurse
he
granted discretionary
We
review to consid-
“anywhere from one-half to three-fourths
er the
issue
appeal:
raised on
wheth-
gallon
day
of vodka” and that he
er
that a
defendant
mari-
smoked
marijuana daily,
joint
smokes
“one
juana
daily
on a
basis is admissible to
nurse,
at
morning
night.”
and one
To the
prove that
he smoked
on the Appellant
smoking marijuana
denied
day of the collision. For the reasons dis- day
Appellant
of the collision. But
later
below,
cussed
we hold this evidence to be
told a
tech that
lab
he smoked “this morn-
inadmissible; accordingly, we
reverse
ing.”
treating physician’s
sup-
*3
marijuana
nel about
he
whether
smoked
quires
proof of wanton mental state.
morning
despite
the
of the
But
collision.
way
One
wantonness is to show
marijuana
daily
usage,
his admitted
and
that
the defendant
in a vehicle-homicide
conflicting
his
statements
the hospital,
at
driving
was
case
while intoxicated. See
marijua-
at trial he
that he
denied
smoked
Commonwealth,
Estep
Ky.,
957 S.W.2d
morning
na the
the
collision.
(1997). Consequently,
the prosecutor
Appellant
accompa-
that he
Appellant
explained
intended to show that
was under
girlfriend
nied
the
marijuana
hospital
his
induce
drugs
the influence of
or other
at
labor at 5:00 a.m. on
11. He
the time of his
with
Dar
December
collision
Mr.
marijuana
smoked
while
He
Appellant
nell. While
did not
she drove.
contest ad
stayed
all
hospital
day,
trip
at the
save one
that
mission
he smoked a mari
clothes,
juana
baby
to Wal-Mart for
and
cigarette
day
collision,
spent
the
before the
night
hospital.
day,
the
at
The next
Appellant
did contest
the
the admission
collision,
the
day
hospital
the
he left the
evidence that he had a
of drinking
go directly
around 6:30 a.m. to
to work.
smoking marijuana everyday.
alcohol or
404(b)
if
marijuana
He later
had
Relying primarily on KRE
testified
he
and
morning,
probably
he
would
Appellant made motion in
it,
smoked
did not.
his
Concerning
limine to
he
suppress such habit evidence.
statements,
trial,
Appellant
inconsistent
testi-
Just before
the court
that evi
ruled
somebody
fied: “I told
that I had smoked
concerning Appellant’s daily
dence
drink
morning
some weed earlier
ing
[the
would not be admitted. But the court
day
but was the
before.
It was
Appellant’s
collision]
also ruled that
dai
the
11th
I smoked the weed be-
ly
marijuana
use of
when
was admissible.
cause I didn’t have none
[on
12th].”
This evidence was
introduced dur-
first
ex-
prosecutor
On cross-examination the
ing
prosecution’s
direct examination of
plored Appellant’s
depth,
use
nurse,
emergency
room
who read the
asking
did
questions
age]
“[At
like:
what
assessing Appellant
notes she took after
you
smoking?”
your
start
“What’s
normal
joint
the ER: “Patient
I
one
states
smoke
consumption?”
prosecutor
finally
The
in the
and
at
morning
night.”
one
The
just pretty
concluded: “You’re
much a one
later
physician’s
nurse
read the
notes:
joint morning
joint
night,
and one
at
[sic]
morning.
joint
“[Patient a]dmits
one
this
just your
that’s
habit.”
Later,
joints
Two
admit-
daily.”
Appellant
on direct
told
was
jury
ted
examination
he
instructed on second-de-
manslaughter
hospital employee
usually
gree
that he
and reckless homicide.
smoked
a “joint”
night
morning. Appellant
was
of-
and
convicted of
lesser
fense,
marijua-
appealed to
Appellant
smoking
also admitted
reckless homicide. He
Court,
na
day
the collision
and
taking
before
and
the Court of
now
Appeals,
before,
Tylenol
day
decrying
3 and Valium the
and
the admission
evidence of
of,
argues that
day
daily marijuana
Appellant
the collision.
testi-
use.
that he
had
has
spinal
fied
has
bifida since he
the evidence was habit
which
Tylenol
Kentucky
a child
he
3 and
been
courts for
uses
inadmissible
century.
Chesapeake
Valium—for
does
have a
at least a
See
& O.
which he
Adm’x,
Ry.
Ky.,
Co. v. Riddle’s
S.W.
Character and habit are close akin.
generalized description
is a
Character
disposition,
disposition
one’s
or of one’s
In Louisville & N.R.
Taylor’s
Co. v.
trait,
respect
general
to a
such as
Adm’r,
(1907),
Ky.,
S.W. 776
it was
honesty,
temperance,
peacefulness.
“[Njeither
give
held:
side can
in evidence
“Habit,” in
usage,
lay
modern
both
what the custom or
of either of
psychological,
specific.
is more
It de-
parties
question
is. The
is not what
regular response
scribes one’s
to a re-
do,
they were
they
accustomed to
but what
peated specific
speak
situation.
If we
did at the time in controversy.” This rea-
care,
think of
per-
character
we
soning
subsequently
affirmed decades
*4
to act
tendency
prudently
son’s
all the
Cincinnati,
Ry.
later
N.O. & T.P.
v.Co.
business,
life,
varying situations of
Adm’x,
5,Ky.
Hare’s
Most states have
version
probative
had
FRE
either
rule or
statute.
stances
conduct
some
worth so as to be admissible on another
jurisdictions in
Kentucky is one of the few
404(b),
ground, e.g.,
may
Rule
the court
currently
States that does not
United
‘habit’
permitting
feel that
label
to be
unques-
admit such
evidence.
Instead
may
attached to the evidence
tend to un-
jurisdictions,
tioningly following our sister
eyes
fairly enhance its value in the
we examine the soundness of
rule and
results.
be excluded if its
ble, unless
KRE 402. But
undue
sues,
tion would meet the
stantially outweighed
implicates
tendency
ble than would be without
delay,
evidence of a routine
401. And all relevant
tion
of
“routine”
Evidence that a
that is
most
Questions
course is
difficulties with its use. These difficulties
the ramifications
do more than
appeal,
While habit evidence has
the
which
of habit
glaring problem
... or
action more
...” See KRE 403. Habit evidence
of
prejudice,
close
consequence
to
all three of these
permits
make
admissibility
to allow such evidence. The
otherwise
evidence violates
scrutiny
considerations
[3]
suggest
person
“relevant[]
the
[2]
of
probative
probable
adopting
requirement
performing
confusion
existence
to
practice,
evidence, including
had
reveals
that the introduc-
the determination
prohibited.
[1]
start with KRE
the
impermissible
or less proba-
the
it.
value is sub-
*5
“having any
“regular”
the correct
is admissi-
of
KRE 403.
of the is-
evidence.”
danger
numerous
some
of undue
intuitive
of KRE
any
may
fact
See
ac-
or
of
whether certain conduct constitutes
joint morning
So, assuming the [habit] evidence four permitted testify officers were to relevant, question to be I think it should about five such incidents. The Tenth Cir- incompetent be held ... pro- agreed because its cuit with the trial court that this bative force does not in- outweigh properly the admitted as evi- convenience of a multitude tending of collateral dence of habit to that Perrin issues, suggested by pleadings, not aggressor. the was the first Aside from the time, testimony the trial of which would take much fact that of these officers impermissible tend create confusion and do little appears to be character evi- good habit, .... Habit is an inference from dence and it is not evidence clear acts, many “habit,” presents each of which an that to establish the four wit- tried, necessarily issue to be and in- nesses were examined and cross-examined. direct, naturally Though volves and invites cross- Ap- not discussed the Court of decision, likely But few are highly probable it is situations —one. cases peals’ unitary This begs to have such a ratio. plaintiffs permitted counsel was to cross- concerning many question how instanc about the details of examine the officers of a and what ratio of reactions es in order those encounters to establish how proof to situations is sufficient to establish in ques- were from the one they different yet have Judges of a habit. and scholars All testimony tion. of this about question. good to offer answers to this easily jury from could distracted the of four Perhaps evidence instances would central in the case: Did Perrin issue enough be to conclude that the defendant and threaten police attack officers had a habit. See Whittemore v. Lockheed particular day? lives on that their 737, 151 Cal.App.2d P.2d Corp., Aircraft case, Appel- even present though In the (1944) (evidence alleged pilot habit, his lant testified about own there pilot previ four of crashed aircraft was evidentiary were numerous collateral is- habit) (cited flights ous admitted show marijuana use that sues related to approval Advisory with Committee explored, likely were not could have Wittekind, notes); see also Chomicki v. have in- easily could been. These issues (App. 128 Wis.2d 381 N.W.2d testi- Appellant volved other witnesses. 1985) (Testimony of four female tenants night slept hospital that he at the fied made held that landlord sexual advances directly before collision he drove Significantly, sufficient to establish habit. if morning. to work next Even he court no determination of how made morning marijuana “every” smoked —a with, many tenants landlord dealt female likely literally not true— statement that is i.e., made no to determine the attempt it if not have he could not smoke he did situations.); Wright ratio of reactions Appellant How evidence could any. much (“... Graham, § the standard of marijuana in kept introduce that he never admissibility of habit frequency for the at his Or that his truck but home? weakening”). appears evidence ... home, spent night away he from when Indeed, even a habit court has divined one in the morn- he did smoke Sorano, French v. single from act. See ing? Could offer evidence that 74 Wis.2d 247 N.W.2d *7 marijuana other he did not when (one money person hiding in instance of occurred, family like the important events habit). a car sufficient to demonstrate that sibling? of a he parent death Or down this tendency go of courts to marijuana particu- ran on a typically out judicial slope further attenuates slippery met day lar of the week? Or that he his already this dubious evi efficacy the type day? This is supplier typical a dence. delays trials and confuses of evidence that compelling one of the most Of course for evi- price pay
jurors exorbitant —an pre- habit evidence reasons exclude the critical that fails to even address dence Appellant case. by the facts this sented issue. that, smoking mari- in addition to stated that difficulty Another use routine to plagues juana daily, it was normal gallon a three-quarters is the tenden- of habit evidence inexorable one-half to drink require proof less If habit evidence were cy daily. for less and of vodka courts admissible, drinking practice that testified he Appellant Appellant’s of the habit. substantive marijuana everyday. If admissible as smoked would have been typically likely true, had been be sim- that it would evidence this statement were That day of the collision. drinking on the the ratio of reactions to ple to calculate KELLER, Justice, Concurring. undoubtedly weigh heavily would jurors. But that on the minds opin- Although agree plurality I with the In utterly evidence would have been false. case, I holding in this follow ion’s ultimate fact, Appellant did not drink alcohol very a different to that conclusion. path day, by that as was confirmed the blood And, fact, in as to certain fundamental test, which alcohol was the reason a e.g., per- whether evidence of issues — Appellant’s “habit” drinking actually probative son’s habits is of his Unfortunately Appel- was excluded. particular my her a conduct on lant, sample his blood could not be tested occasion— from those ex- diverge sharply views and the drug test results could not corrob- testimony orate his that he did not smoke and are pressed plurality opinion morning, of his so evidence closely with those aligned quite held daily smoking was admitted. This scenar- I acknowl- particular, dissenters. In while dangerous sequitur io ferrets out the non edge that Justice Johnstone has outlined encourages: the habit evidence rule regarding poten- some valid concerns regularly performs because a defendant label, malleability tial I believe act, particular partic- he also did so on this allayed with that those concerns could difficulties, light ular occasion. of these an appropriately narrow definition and/or chooses to avoid the introduc- habit, I interpretation of and thus would tion specious of such evidence into the support adoption this Court’s of an eviden- courtrooms of this Commonwealth. tiary permitting rule the introduction Having proper no basis for admis purpose proving habit evidence for sion, Appellant’s marijuana the evidence of on a occasion. conforming action use should have been excluded. This er I Appellant’s vote to reverse convictions ror the trial court was not harmless. and to remand this indictment for new Accordingly, we reverse and remand this because, trial, however, my opinion, be- case to the Green Circuit Court for new Kentucky may permit fore trial courts trial Opinion. consistent with this introduction of habit this Court Kentucky must amend the Rules of Evi- LAMBERT, C.J., STUMBO, J., procedures dence accordance with the concur. large part, my in KRE 1102. In outlined KELLER, J., only by concurs result regard my conclusions in this stem from separate opinion. that, rejection through purposeful belief its “took the proposed this Court COOPER, J., by separate dissents preexisting law ... initiative retain opinion, with GRAVES and *8 Ac- WINTERSHEIMER, JJ„ evidence of habit is not admissible.”1 that joining cordingly, plurality’s dissent. I concur with the con- Lawson, monograph’s may Cooper, G. S. and authors that also be found 1. Robert William Fortune, Lawson, Interpreta- Kentucky G. William H. Rules Evi- elsewhere. See Robert of 2d.ed„ (UK/CLE, 2002). Kentucky § Rules Evidence—What dence 2.51 I rec- tion of of Law?, Ky. L.J. ognize Happened that Edition the mono- to the Common 87 this Second of 517, (1999); Dissenting Opinion, ante. graph, published case 576 which was while this above, however, pending appeal, language quote I also states elsewhere edition, Cooper, Chapter preexisting the first see in a new that "the com- carried over from Fortune, Niehaus, Kentucky & Rules mon law on habit ... comes into direct con- Lawson 1992), 402,” Evidence, D-3, (UK/CLE, and thus plain language id. flict with the of KRE of in accurate, represents part my view a more con- 1.27—an observation on the of 500 KRE which mentary proposed
elusion that
the trial court in this case
to the
authorizes the intro-
allowed the Commonwealth to
states that “Rule 406
improperly
habit,”3
daily
person’s
important:
Appellant’s
of
duction
introduce evidence
marijuana
use to
significant
Rule 406
effectuates
question.
smoked
on the date
change
preexisting
in the
law of Ken-
Kentucky have
tucky. The courts of
large part,
expressed by
In
the view
rejected
of habit
consistently
progeny
dissenters should be seen as the
prove conforming
offered to
be-
when
five-year-old
Stringer
dicta in
v. Com-
R.
v.
e.g., Lexington
havior. See
Co.
suggesting
monwealth2
that the admissi-
558
Herring,
Ky.L.Rptr.
96 S.W.
evidence,
“ulti-
bility of habit
like so-called
Cincinnati,
Ry.
T.P.
(Ky.1906);
N.O. &
evidentiary
mate issue”
was an
Adm’x,
Ky.
v. Hare’s
Co.
open”
proposed
when
KRE
question “left
(Ky.1944).
change
This
S.W.2d 835
rest of the
406 was not
with the
Kentucky law
line
bring
serves to
Kentucky
My
Rules of Evidence.
vote
jurisdictions
law of other
and
with the
I
way
falls the
it does because
law.4
with the federal
opinion
significance
different
as to the
com-
rejection
proposed
illuminating
KRE
is the Committee’s
this Court’s
Also
KRE
that states that the
Today’s
mentary
conclude that the
406.
dissenters
broadly inclusionary definition of “relevant
approve” proposed
“failure to
Court’s
Evi-
Kentucky
Rules of
significance,
KRE
an act without
evidence”
406 was
uti-
alleg-
corresponds
to the
dence
with the definitions
suggest
and
the answer
law and
Kentucky
the admis-
lized under
common
edly “open question” regarding
guide
precedent
can be found in
that common law
would
sibility of habit evidence
I, however,
relevancy
KRE 401
determinations:
KRE 401 and KRE 402.
be-
rejection
explicit
that the Court’s
lieve
relevancy provided
The definition of
KRE 406 demonstrated the
proposed
rule, although
carefully
more
by this
continue to exclude
stated,
Court’s intention to
significantly
precisely
is not
dif-
relevancy provi-
under the
previously
from
definition
ferent
Kentucky Rules of Evi-
sions of the new
Kentucky
The old
used in this state.
large
divergence
our
part,
dence.
that “the term
Appeals
said
per-
opinion
separate,
stems from a
means
applied
‘relevant’ as
to evidence
fundamental, disagreement
haps more
evidence tends to establish
purpose
proposed
litigation.”
nature and
disprove
about the
issue
Inc., 413
interpret pro-
Massey-Ferguson,
O’Bryan
KRE 406. The dissenters
on an
(Ky.1967), and
Stringer
KRE
much like
inter-
S.W.2d
posed
is relevant
occasion that evidence
provision
as a
earlier
preted proposed
proposition
make the
when it “tends to
tautological signifi-
more than
with little
probable,”
more or less
to the
at issue either
anything”
cance that failed to “add
Adm’r, Ky.L.Rep.
I
and I find the
Mason v. Bruner’s
relevancy
disagree,
rules.
rele-
rulings on the
Prior
Study
Rules
Commission’s com-
Evidence
Commission,
Study
Ken-
signifi-
temporaneous
interpretation
Rules
*9
(Final
proposed
rejection of
Draft
tucky
cance of this Court's
Evidence at 29
Rules of
added).
1989)
KRE 406.
(emphasis
denied,
(1997),
2. Ky.,
mil serve as law- admissibility of “ultimate issue” testimo- useful yers judges.5 logic to ny.7 requires great leap It no rejection pro- conclude the Court’s considered in the context of the When by KRE 406 motivated a similar posed contemporary understanding pro- of these quo. to the status While preserve desire visions, rejection the pro- Court’s the suggest that the Court’s today’s dissenters posed light KRE 406 takes on a different KRE an adopt proposed failure to 406 was suggested by from that the dissenters. independent significance act without The Court definition of “relevant way merely paved evidence”—KRE 401—that was consistent the for the admission precedent it existing with and that under- KRE evidence under KRE 401 and guided by prior jurispru- stood to be its is, view, my in suggestion base- dence, rejected specific rule of rele- less revisionism. historical proposed KRE 406—that would vance— context, appropriate Considered the changed Kentucky evidence law rejection proposed KRE Court’s permitting the introduction of habit evi- 406 evidenced its intent that habit evi- Kentucky consistently dence that courts the dence would remain inadmissible after had found not relevant. Academics who Kentucky the Rules of Evi- adoption of law study interpreted of evidence Today’s simply dence. dissenters wish rejection of KRE proposed Court’s 406 as they have change the law because in- Supreme indication “that the Court reached a different conclusion as to the keep Kentucky prior tends to on its relevance of habit evidence. Instead course, which would mean that evidence of changing the rules the middle of prove conformity habit is not admissible to previ- game by reevaluating this Court’s on a given therewith occasion.”6 In addi- determinations, relevancy I believe ous tion, opinions joined by written and/or procedures this Court must follow the members of this who participated per- in KRE 1102 if outlined it wishes contemporaneous reject decision to mit the introduction of habit evidence proposed 704 reflect that KRE 704’s I prove conforming deletion was deliberate and intended to behavior. While ambiguity 5. Id. at 21. in our decision to eliminate the Kentucky proposed Rule 704 from the Rules Lawson, Kentucky 6. Robert G. Commonwealth, Evidence.”); Stringer v. 2.35, (3d Law Handbook at 117 ed. Michie (Lambert, concurring) supra at 896 J. note 3 1993). See also Richard H. & Underwood argument (expressing a in a concur- similar Weissenberger, Kentucky Glen Evidence: 2001 ring opinion joined then-Chief Justice Ste- (Anderson Courtroom Manual at Publish- J., (Stumbo, dissenting, phens); Id. at 897 Co.2000) ("The ing original draft of the KRE Lambert): joined part by Justice provision included a like FRE which permitted would have evi- use of habit simply interpret We here than do more However, Supreme dence. Court deleted and KRE 702. As the Newkirk KRE 401 rule, proposed and one can assume observes, opinion there was no inadver- that this is another instance in which the 704; adopt our failure to FRE tence in going Court is to steer the old course rather deliberately rejected thorough after adopt majority position exemplified than In direct violation of KRE consideration. FRE.”). by the precisely majority’s opinion does we what this Court refused do when Commonwealth, Ky., See Newkirk proposed rejected KRE 704. (1997) (Current S.W.2d Justice Chief Id. writing majority including Lambert for a Stephens that is no then-Chief Justice "there *10 (1997) (wanton amendment, such and I mur- support would 957 S.W.2d that the Rules Review upheld observe conviction on evidence of the der recently has recommended ingestion Commission defendant’s of controlled sub- Court, changes rule to this the Commis- operation stances and erratic subsequent yet adoption vehicle). sion has not recommended Specifically, of a motor the Com- permitting a rule the introduction of habit sought monwealth to introduce evidence of And, proposal evidence. until a such made at Appellant’s own statements Court, comes before the I believe we subsequently scene of the collision and/or apply should of Evidence as Rules anywhere hospital at the that he “drinks understood, inter- previously adopted, and gallon to of a a from one-half three-fourths Court, preted un- by the and should not (one-half day gallon of vodka” of vodka consistency in predictability dermine and vehicle) in and Appellant’s was found that com- by reevaluating the law of evidence joint in [marijuana cigarette] “I smoke one that relevancy mon law notions of were morning and He night.” one at also when the were accepted Rules conflicting hospital made statements at and that this Court intended to continue marijuana to he as whether had smoked on Accordingly, I be- adoption. after their day of the fatal collision. trial court lieve the committed reversible laboratory sample of Ap- A test of a error when it allowed the Commonwealth negative blood for alcohol pellant’s was mari- Appellant’s to introduce However, drug Ap- screen of content. juana “habits” the face of an unbroken positive urine was for pellant’s sample prohib- precedent line of from this Court Valium, Tylenol marijuana. The and evidence, iting the introduction of habit had evidence that Commonwealth also Appeals and I would reverse the Court of day Appellant giggles” “had the on Appellant’s and remand indictment to the collision his and had left work trial court for a new trial. tobacco) (stripping on numerous duties that for short visits to his day occasions COOPER, Justice, Dissenting. automobile; and the known effects 12, 1997, Appellant December On include a marijuana consumption feel- Burchett, Jr., George H. drove his vehicle fine, a ing everything is better past stop sign slackening speed without mood, talkativeness, lessening of motor Bloyds Crossing into the intersection and control, judgment. and altered Kentucky highways 61 and 569 Green limine, 103(d), KRE Appellant moved in ve- County, Kentucky, collided with a his his as to alcohol suppress admissions being hicle driven Sherman Darnell. that the grounds habits Darnell, right way who had the at the were inadmissible char- statements either intersection, resultantly Ap- was killed. 404(a), or KRE inadmissi- acter pellant manslaughter indicted crimes, wrongs, ble evidence other and, degree following a trial the second 404(b). fact, acts, as correctly jury, convicted of reckless homicide and ante, plurality opinion, Appel- noted imprisonment years. for five sentenced neither char- Le., lant’s admissions constituted rea, a criminal wanton- prove To mens other recklessness, acter evidence nor opposed ness or mere acts, crimes, wrongs, but evidence of sought negligence, Commonwealth laboratory test re- habit. In view of the operating sults, weighing probative judge, the trial drugs vehicle under influence and/or Commonwealth, preju- of undue Ky., against danger Estep v. value alcohol. See *11 to a re- dice, regular response mo- one’s Appellant’s KRE sustained scribes If we speak to the evidence of his admit- situation. suppress peated specific tion the motion care, ted alcohol habit but overruled per- think of the character for we the evidence of his admitted suppress in all the tendency prudently to act son’s marijuana habit. business, life, in varying situations life, handling in automobiles and family he
Obviously, Appellant’s admission that habit, in the street. A walking across marijuana cigarettes every smoked two hand, person’s regu- is the on the other day, morning one and another night, probative of the meeting particular Common- a kind lar case, theory in especially wealth’s of the specific type a of con- of situation with Appellant’s conflicting view of statements duct, a going such as the habit of down hospital personnel as to he whether time, stairway two stairs at a particular fact, had, in smoked on the for a left giving hand-signal or of Nevertheless, of the morning collision. turn, cars alighting railway or of from in three expressed for various reasons moving. they doing while are opinions, majority separate of this Court may acts habitual become semi-automat- concluded, case,1 that has at least ic. we retain our 100-year-old should rule Advisory FRE 406 Committee’s Note circumstances, excluding, under all admis- McCormick, Evidence (quoting sion evidence of an individual’s habit as § Strong, at 340 see John W. [now proof circumstantial conforming his/her McCormick on Evidence at 584-85 specific thereby conduct on a occasion and (5th 1999)]). only jurisdiction maintain our status as the ed. West in the United that States does so. Both character evidence and habit evi- dence are offered as circumstantial evi-
I. HABIT EVIDENCE VS. conforming dence of conduct. The ele- CHARACTER EVIDENCE. distinguishes ment of habit evidence In recommending admission of habit evi- from character evidence is the element of dence, evidence, as opposed character specificity, opposed disposition. to mere Advisory Committee’s Notes to Feder- Thus, is a “drunk- (FRE) al Rule of Evidence 406 reiterated ard” would be character whereas oft-quoted paragraph from McCor- evidence that he drinks “one-half to three- mick’s treatise on the law of evidence: quarters gallon day of vodka” is Character and habit are close akin. 29 Am. generally evidence of a habit. See a generalized description Character is Jur.2d, The Advi- disposition, disposition one’s or of one’s sory “[ajgreement Committee noted trait, respect general to a such as general highly per- that habit evidence is honesty, temperance, peacefulness. “Habit,” suasive conduct on a occa- usage, lay modern both psychological, specific. Advisory is more It de- FRE 406 Committee’s sion.” fact, case, majority’s opinion holding plurality claimed adherence to in this excluding the common law rule habit evi- person that a deceased had a that evidence service; for, only lip dence also amounts driving per "habit” of 45 to 55 miles hour today, majority Boggess has rendered was not admissible but so reliable that it Commonwealth, Ky., No.2001-SC-0263-MR experts,” "reasonably upon by could be relied 23, 2003), (January opinion designated as 703(a), forming expert opinions. their published,” penned by “not to be the author *12 added). (b)
Note, supra (emphasis Again proof. Method of Habit or routine testimony practice may proved by be in quoting McCormick: by specific the form of an or opinion may be of as the sum thought Character in instances of conduct sufficient number it though of one’s habits doubtless is finding to warrant a that the habit exist- than this. unquestionably more But practice ed or that the routine. was uniformity response of one’s to habit is consistency than greater far with Federal The Rules of Evidence were one’s to charac- which conduct conforms adopted by Congress in 1975. Pub.L. 93- though charac- disposition. ter or Even 595, 1, 2, 1975, § Jan. 88 Stat.1932. FRE only in as evi- exceptionally ter comes 406(a). However, 406 is identical URE act, surely any of an man 406(b) dence sensible not Congress adopt did URE investigating particu- X did a whether jurisdictions adopted have most that ver- greatly helped lar act would be 406 also omitted sion URE have subsec- inquiry by evidence as to whether he (b).2 See Jack and Mar- tion B. Weinstein in the habit of it. doing A. 2 garet Berger, Weinstein’s Evidence ¶ (Matthew 1989). jur- 406[05] Bender Id. 406(a), that URE adopted
isdictions have II. HABIT. 406(b), proof PROOF OF not the method of but URE practice of habit or routine is determined The National Conference of Commis- case-by-case Typically, it on a basis. is promulgat- sioners on Uniform Laws State by testimony of a knowledge- established ed the first version of the Uniform Rules that exists such able witness there habit (URE) Evidence 13A 1953. Uniform 1 practice. Strong, John W. McCor- (West 1986). State Laws Annotated 3 As Evidence, 195, § at n. supra, mick on 20. progressed work on the Federal Rules of here, course, was even proof strong- Of Evidence, the Uniform Rules were redraft- of the admission of er since consisted ed with a view conform to the Federal himself, person most knowl- Appellant, at 5. practicable. Rules so far as Id. The of his own edgeable habits. of the final version Uniform Rules was August and recom- promulgated 1974 If proof by specific habit is instances adoption mended for in all states. Id. at conduct,3 there must be Practice”) (“Habit; iii. 406 Routine URE enough such instances to establish ex- provides: habit, istence of and the circumstances
(a) must Admissibility. of the habit under which the habit is followed Evidence conduct present sought or of at the time of the person of a the routine 23; § Id. n. proved. corroborated to be see organization, an whether Henry Wigmore, regardless presence also John Evidence or not and (3d Co.1940). ed. Little Brown & eyewitnesses, relevant generally of a are said organiza- The elements habit person the conduct (3) (2) regularity, specificity, in con- on a to be tion occasion response. involuntary or formity prac- with the or routine semiautomatic Am.Jur.2d, § 393 tice. ior, always a infra, jurisdictions character matter of note a list of but is almost
2. See
URE
Wright
a version of
& Kenneth W.
opinion.”
Charles A.
Graham, Jr., 22
Practice and Proce-
Federal
authority
reason-
3. One
notes that “one could
(West 1978).
dure
at 354
having
ably testify to
habitual behav-
observed
omitted).
(citations
element, however,
The court
Id. at 511
require
last
does
reactions
explain
went on to
“ratio of
that the
be reflexive or nonvoli-t
response
“comparison
means a
ional,4
situations”
that it be uniform. Stein
in which
such
Arcilla,
number of instances
berg v.
Wis.2d
in which
conduct occurs with
number
(“a
(App.1995)
person’s
N.W.2d
Id. at 512.
place.”
no such conduct took
‘regular response’ need not be ‘semi-auto
’
*13
matic’ or
in
‘virtually unconscious”
order
Thus,
League
in United States Football
admissible).
“[A]dequacy
to be
of sam
League,
v. National Football
F.2d
(2d
pling
uniformity
key
Cir.1988),
and
response
of
are
evidence that the Na
Advisory
factors.” FRE 406
League disregarded
Committee’s
tional
anti
Football
Note,
Graham,
supra; Wright
supra,
and
trust advice three or four times over a
period
requirements
twenty-year
note
5233. The
for ad
was insufficient
to
pattern
amounting
a
of behavior
to
mission of habit evidence were summa
habit,
1373; Weisenberger
at
in
id.
v. Sen
frequently
rized as follows
cited case
(N.D.1986),
ger, 381
a
America,
N.W.2d 187
brother
Inc.,
of
v. Volkswagen
Wilson
of
precluded
of a deceased motorist was
from
(4th Cir.1977):
Mut. Ins. Co. v. 414 So.2d that one has purpose proving For the (Note (Fla.Ct.App.1982).6 act, not done a it is not or has satisfy law instant case would Florida be or has competent to show that he has marijua the evidence of Appellant’s cause other doing not been the habit circumstantially na habit was corroborated acts. similar screen, positive drug the evidence Hamill, Figueiredo v. 385 Mass. prior of his demeanor conduct to the Davidson (quoting N.E.2d accident, medi hospital his statement to Co., v. Massachusetts Cas. Ins. 325 Mass. cal “I technician that haven’t smoked (1949)). 115, 89 N.E.2d Never- ” added), pot morning (emphasis since this theless, Supreme the Massachusetts treating physician’s entry and the has clarified that habit evidence is not medical that Appellant records “[a]dmits inadmissible in all circumstances. joint morning
to one (emphasis add a distinction be- Massachusetts draws *15 ed).”) only Illinois admits habit evidence personal tween evidence of habit and eyewitness when no testimony there is cus- evidence of business habit or respect [Ejvidence with to the conduct at issue. tom .... of business habits Cty., Grewe v. West 303 Ill.App.3d Wash. that prove or customs is admissible to 299, 612, 739, 236 Ill.Dec. 707 N.E.2d 744- with performed act was accordance (1999).7 45 example, Missouri courts have admitted For this court has the habit. the precise upheld boundaries the admission of evidence of that prove of the rule remain business habits or customs to unclear. Hawkins v. (Mo. sent, 358, that an a letter had been insurance Whittenberg, 587 S.W.2d 363-64 same). application had not been blank when App.1979) (discussing Neverthe police that would have less, (at approved, Missouri follows a mini Illinois money fugitive’s if found in a impounded mum) and admits habit evidence in the unaccompa- possession, goods and that eyewitness testimony. absence of Gerhard receipt paid nied with a had not been Louis, v. Terminal R. Ass’n St. 299 of for. (Mo.1957). 866, S.W.2d 872 See also State 265, Bennett, 273, v. 2 Hemby, 63 S.W.3d 269 & n. v. 416 Mass. 620 Palinkas (internal (1993) 775, (Mo.App.2001) citations (rejecting habit evidence N.E.2d 777 omitted). only prior when on And in O’Connor v. SmithKline experiences two based 406(a) permits good W. 6. URE evidence of habit to sion and are "still law.” Charles Erhardt, 406.1, (2d conduct “whether corroborated or § Florida Evidence at 158 prac- not.” Florida has the “routine ed.1984). provision, provision, tice” but not the "habit” 406(a). leading of URE Fla. Stat. 90.406. A 406(a) permits 7. evidence of habit “re- URE opined authority Florida evidence law has presence eyewitnesses.” gardless of the prior allowing that cases admission of evi- Appellant, were no Note that other than there individual, dence of the habit of an if corrobo- surviving eyewitnesses to the fatal collision rated other of the evidence occurrence this case. conduct, conforming were not "dis- placed” statutory provi- adoption 508 Shannon, 635, 998, Laboratories, Inc., Ky. 9 S.W.2d 36 Mass. son v. 225
Bio-Science
360,
(1994),
(1928) (“habit”
App.Ct.
drinking);
8. The
wealth,
566,
(2002).
Ky.,
77 S.W.3d
recent case of
v. Common-
the more
Johnson
wealth,
(1994),
ap-
Ky.,
ADOPT PROPOSED
proposed
rules. With
amendments of
*17
very
exceptions,
those amendments
few
Court,
by the 1991
not the
were initiated
reading
separate
If I am
his
opinion
Assembly.
following
The
1992 General
correctly,
agrees
Justice Keller
that our
amend-
examples
are
a few
of those
law rule excluding
common
evidence of
(deleted
by
language
ments
indicated
habit and routine
is untenable but
brackets):
strikeout;
language
added
is concerned that a decision of this Court
depart
proposed
to
from that common law rule
KRE
The Court amended
103(a)(1),
proce-
pertaining
preservation
would circumvent the KRE 1102
to
of er-
ror,
amending
language
pre-existing
dure for
the
rules of
to insert
from
ie.,
9.22,
rules,
46 and RCr
procedural
evidence.
CR
Acts,
404(b)(1),
Ky.
ch.
KRE
but insufficient to establish a
10. Pursuant to 1992
Chapter
KRS
422A
the amended version of
conforming
purpose
proving
the
habit for
the Ken-
and transferred to
was renumbered
conduct.
(KRE).
Compi-
tucky
See
Rules of Evidence
Chapter 422A.
ler’s
to KRS
*18
liability
products
or]
sures
cases
[in
time,
request-the-same
on
shal-l-be-
purpose,
another
such
when offered for
counsel-.-
opposing
shown or disclosed to
control,
proving ownership,
as
or feasi-
can be offered
other evidence
[Before
measures, if
bility of
con-
precautionary
another time
having
the witness
made at
troverted,
impeachment.
or
statement,
in-
must be
a different
he
§ 6.
Id.
it, with the circum-
quired
concerning
time,
pres-
persons
essentially
proposed
place,
rewrote
stances
The Court
ent,
504,
examining party
as the
correctly
to
as
privilege,
KRE
the husband-wife
(1988), i.e.,
them; and,
exceptions
general
to the
rule
in
present
can
if it be
-writ-
witness,
enun
admissibility of relevant evidence
ing, it must be shown to the
however,
406(a),
in Rule 402. URE
it. The
ciated
opportunity
explain
with the
to
not of exclusion
admissibility,
to be
is a rule of
may
court
allow such evidence
FRE 406
limitation,
adoption as
or
and its
to com-
impossible
introduced when it is
emphasize
to
obviously was intended
rule because of the absence
ply with this
law rule of exclusion
previous
common
hearing
at the trial or
of the witness
jurisdictions,
contradicted,
followed in some
being
and when the
then
sought to be
States,
3,
supra, note
e.g.,
v. United
Levin
impeaching party
court finds that
abrogated by
adoption
in
had been
good faith.]
has acted
have
Proposed KRE 406 would
FRE 402.
(b)
prior
Exteinsie- evidence of
inconsis-
purpose.
Howev
accomplished
same
tent-statement of witness. —Extrinsic ev-
er,
adopt
specifical
not to
a rule
a decision
prior
idence of a
inconsistent statement
not
ly abrogating the common law does
by-a-wltness-is^ot
admissible unless the
codify
adopt
to
a rule
equate to
decision
an
to
opportunity
witness-is —afforded
where,
law, especially
as
ing the common
deny
oppo-
and the
explain or
the same
here,
apparently
law rule was
the common
party
opportunity
is afforded an
to
site
i.e.,
Rule,
abrogated by
adopted
another
interrogate-the-witness-ther-eofo-or-iha
adopted
KRE 402.
there is
“[W]hen
nn -
justice—otherwise—requfefe
interests of—
con
speaks
Rule of Evidence that
to the
provision
apply
This
does
admis-
issue,
adopted
occupies
Rule
tested
party-opponent
sions of a
as defined
the former common
supersedes
field and
KRE 801A.
Garrett,
14,
supra,
interpretation.”
law
(2).
Acts,
16(1),
Ky.
ch.
v. Merrell Dow Pharma
citing Daubert
ceuticals, Inc.,
579, 588,
113 S.Ct.
U.S.
The 1991 Court could also have amended
2786, 2794,
How
the If faced with the in favor judi- eluding law.11 case sub “ultimate issue” rule). ce, majority of the modern majority may of the 1991 Court well way have decided it the same the HABIT VI. ADMISSIBILITY OF ante, plurality opinion, now decides it— IN THIS CASE. EVIDENCE reaffirming antiquated our common law Like evidence of habit or Leibson, However, precedents. Justice if routine admissible rele- Court, famously member of the 1991 also Compare Gregory vant to a fact issue. wrote: State, 570, 242, Ark.App. 9 657 S.W.2d stagnant pool, The common law is not a (in receiving 571 a trial for stolen moving purify but a It seeks to stream. property, marijuana habit of witness who through itself as it flows time. The allegedly property sold to defendant stolen common is our responsibility; law the prove any was not relevant to issue the responsible child of the courts. We are case). Thus, Appellant whether smoked for its direction. marijuana morning on the of the collision Hays, Ky., Hilen v. 717 S.W.2d prove would not have been relevant to (1984) (citations omitted). past stop sign he drove the and into the majority If the of this members Bloyds Crossing at without intersection Court now believe that the time has come However, it slackening speed. his was admissibility to reconsider the of habit evi- the element of a criminal relevant depart fallacy dence and from the of our recklessness, of wantonness or mens rea cases, old ie., the 1991 Court left the door prove why stop sign he ran the open queried to do so. Professor Lawson drove into the intersection slack- without Kentucky adoption whether the ening speed. Commonwealth’s abrogated theory all was that had smoked Rules common morning on the of December evidentiary law rules. See Robert G. Law- operation and that his of a motor son, Interpretation Kentucky Rules under the influence of the com- vehicle Happened to the Com- Evidence—What Valium, marijuana, bined effects Law?, (1998-99).12 Ky. If mon L.J. Tylenol 3 amounted to wanton or reckless so, governed by then this case is KRE 402 smoking conduct. His admitted habit of evidence, if and we should hold that habit marijuana cigarettes every day, one in two If competent, relevant and is admissible. morning night, and another not, obviously premise and that is the theory. of that highly probative ante, plurality opinion, then this Court authority change has the direction (“every The instances of conduct past by overruling law those of the common morning”) enough were “numerous to base with mod- precedents that are inconsistent systematic an inference of conduct.” Wil- (and unanimous) America, Inc., virtually legal Volkswagen ern son v. (4th Cir.1977) (quotation supra, at 891-92 thought. Stringer, F.2d Cf. omitted). identi- rule ex- And since the (discarding prior our common law Erhardt, Reporter Cleary, FRE supra, opining for the 11. See note Professor Committee, adopting a statute Advisory Florida's enactment of wrote that "under practice” provision, Rules, “routine Federal no common law of evidence 406(1), provision, URE did not "habit” Preliminary Cleary, remains.” Edward W. admitting law rule affect Florida’s common Evidence, Reading Notes on the Rules of if other evidence of habit corroborated Neb. L.Rev. evidence. *20 occurrence, “every e.g., morning,” Red circumstance, Webb, e.g., Georgia “when opposed Ronald WEBB and tobacco,” there is no here
stripping issue Appellants, wife, his similarity with respect to circumstances v.
or ratio reactions to situations. Nor is compe- there issue here as to either and Brenda Michael James COMPTON tency of the knowledge person or the re- Gary wife, Compton, R. Carol his the habit. The evidence porting wife; Hughes Hughes, his Robin by Appellant, form him- of an admission Bank; Pikeville William R. National self, 801A(b)(l), person KRE who was the wife; Hughes Sylvia Hughes, his most knowledgeable of his own habits. Compton, Compton and Mable James competent, Even if relevant and evi- wife; Harvey his and Bank Newsome practice, dence of a habit or routine like One, Appellees. subject other is relevant to ex- if its probative clusion under No. 2001-CA-000592-MR. substantially outweighed by value is danger prejudice.13 of undue The trial Kentucky. Appeals judge probative that the value concluded Appellant’s of the evidence of habit alcohol 3,May 2002. substantially outweighed preju- its Denied (because Discretionary Review neg- dicial effect his blood tested content) ative for alcohol that such was March 2003. respect
not the with case the evidence (because marijuana
of his urine his marijuana
tested for positive and because prior conflicting re- statements with
spect to whether he had or had not day
smoked on the of the acci-
dent). I no discern abuse discretion
with to either of these KRE respect note
rulings. English, supra, at 945. I
Accordingly, dissent and would affirm of the judgment Green Circuit Court
all respects. WINTERSHEIMER,
GRAVES and
JJ., join dissenting opinion. ante, opinion, excluded because plurality determines that it should be seems to assert substantially outweighs prejudicial practice evidence of habit or routine its effect all probative automatically value. Commonwealth En- is excluded under KRE 403. its (1999). Here, head; glish, Ky., 403 on S.W.2d That assertion turns KRE its majority Court holds that evidence premise of the rule is that evidence that is always ex- habit or inadmis- relevant and admissible can be routine otherwise thus, discretion, sible, play. into judge, does not come cluded the trial KRE 403 if his/her notes remand this ease to the circuit court. port the lab tech’s version of events. A 12,1997, On December Sherman Darnell lab test of Appellant’s blood later con- was killed when his vehicle Appellant was struck firmed that drank no alcohol Darnell, Appellant’s vehicle. Mr. traveling drug before the collision. A screen of highway County, on 61 in Kentucky, Appellant’s sample Green urine revealed right way had the required presence and was not of three substances: benzodiaze- Bloyds Valium), stop Crossing pines {e.g., {e.g., Tylenol intersection opiates (THC) (mari- highway 3), 569. Appellant, traveling tetrahydrocannabinol juana). sample Unfortunately, prescription spasms blood ease the muscle —to drugs. joints was insufficient to leg test these and the swollen his back. gave further admitted that he Appellant was indicted for second- conflicting hospital statements to person- degree manslaughter. This offense re
Notes
Notes meaning, completely change an to state its intended required objecting party objection only if viz: specific ground the for court, requested by (a) the viz: testimony pro- in criminal Spousal of an accused ceedings; spouse [a The the one ruling admitting case testify privilege has a to refuse to party] timely objection or motion to against spouse [party] the accused as to upon strike of record re- appears [and occurring events after the date of their stating specific the the quest court] marriage. if ground objection, specific (b) An Marital communications. indi- [ ground apparent from the con- testify privilege vidual has a to refuse to text. testifying prevent and to another from 1(a). Acts, Ky. ch. 324 made any to confidential communication The also amended KRE proposed Court spouse individual to his or her by the 403 to limit the circumstances under which may during marriage. privilege The excluded, viz: relevant evidence could be only by the individual hold- be asserted relevant, may Although ing privilege by or the holder’s if probative excluded its value is sub- conservator, rep- guardian, personal or stantially outweighed by danger resentative. A communication is confi- prejudice, unfair confusion of [undue] an privately by if it is made dential issues, misleading jury, or or her and is not spouse individual delay, considerations of undue waste of per- intended for disclosure to other time, cumu- presentation or needless son.] evidence. lative §Id. 9(1), §Id. proposed amended KRE Kentucky’s And the Court substituted pertaining subsequent remedial mea- Queen Caroline’s pre-existing “Rule sures, to ensure that the rule would not Case,” Duckworth, Ky., 738 Fisher v. liability apply products to criminal or i.e., 43.08, (1987), with S.W.2d CR cases, viz: the foundation for admis- respect laying When, event, after measures are statement, prior sion of a witness’s which, previously, taken if taken would which would proposed harm injury allegedly have made an rule, viz: adopted the more liberal federal occur, likely less caused event (a) concerning prior Examining witness subsequent measures is -In-examining a witness-con- statement. prove negligence or not admissible to -by-fee- made statement cermlng-m-prlor- culpable conduct in connection with the not, witness, written or whether require This rule does not event. its statement need not be shown nor subsequent mea- exclusion of evidence of at that disclosed to the witness contents