*1 “patients may appointments make for the of public policy matter that should be purpose sole of requesting a new ‘miracle properly by legislature. decided drug’ television, they have seen having on matter public legislative needs debate knowledge drug truly whether the supported which is by evidence of its value for their appropriate particular situation.” process otherwise. can Such' best be Greene, See Andrea M. Pharmaceutical obtained through legislative investigative Liability Direct Mar- hearings public policy. as a matter of Manufacturers’ keting Over-promotion Prescrip- Kentucky product liability statutory law is Users, Drugs tion to Product 26 Am. J. and amendments to the law are within the Trial Advoc. 661 study This same Assembly. discretion the General found that many as a third of the
patients asked for information on drug LAMBERT, C.J., STUMBO, J., join while one four asked for drug itself. this dissent.
Id., at note quarters 6. Three of those
patients that asked their doctor to write prescription drug for the received one.
Id. Such drug products direct demand for
is due to the manufacturer’s direct-to-con- promotion.
sumer Given that the manu- directly
facturers are now marketing and benefiting by sales, they increased must THOMAS, Appellant, Flaminto also assume increased share in the risks pertinent and duties selling product. KENTUCKY, COMMONWEALTH OF companies
Pharmaceutical
are in the
Appellee.
position
best
adequate
ensure that
warnings
provided
are
to customers. As
No. 2002-SC-0021-DG.
Labs., Inc.,
noted in
Wyeth
Perez v.
Supreme
Kentucky.
Court
(1999):
N.J.
[Today,] large medical services are in provided by
measure managed care or-
ganizations. purchased Medicines are
the pharmacy department supermar-
kets and paid often third-party
providers. Drug manufacturers now di-
rectly products advertise to consumers radio, television, internet,
on bill- public transportation,
boards on and in
magazines.
Perez, supra,
This case can profound have a effect on being
the health and well individuals
this Commonwealth. It is an important *3 OF
I. SUFFICIENCY
THE EVIDENCE.
4-5,
night of November
On the
home alone with
Thomas
Dellithi
in the rental mobile
children
two of her
Appellant.
home
she shared with
living
asleep
fallen
children
a movie on television.
watching
room while
a.m.,
Mrs.
At
4:00
while
approximately
Halbleib, Jr., Louisville,
Irvin
Counsel
bedroom,
asleep in the master
Thomas
*4
Appellant.
D.W.,
two,
into
with
age
crawled
bed
then
extremely
was
Stumbo,
General,
her.
noticed that D.W.
Attorney
She
Gregory D.
until approxi-
did not realize
groggy but
Courtney
Hightower,
J.
Assistant Attor-
Division,
seriously ill.
General,
mately
was
6:30 a.m. that he
ney
Appellate
Criminal
Frankfort,
ingested
that he had
Appellee.
later discovered
Counsel
She
pills that she
an
kept
five or
Valium
six
Opinion of
Court
Justice
a
box in the
unlocked curio
drawer
COOPER.
home,
returned
Appellant
dresser. When
Thomas,
Flaminto
and his
Appellant,
Appel-
happened.
him what had
she told
wife,
Thomas,
aby
Dellithi
were convicted
oil in
green,
lant
milk and castor
mixed
jury
McCracken Circuit Court
of criminal
soda
twenty-ounce Mountain Dew
plastic,
degree.
second
508.110.
abuse
KRS
it to
He then retired
bottle and fed
D.W.
years
Appellant was sentenced to three
sleep. At
to the
and
to
9:00
bedroom
went
years
to
prison
upon
enhanced
seventeen
a.m.,
attempted
Thomas
to use
Mrs.
jury’s
that he was a
additional verdict
rental office
telephone
park
in the trailer
(PFO)
felony
persistent
offender
however,
help;
the attendant
call for
532.080(3). The
degree.
first
KRS
Court
Later,
sought
arrived.
she
yet
Appeals
his criminal abuse con-
affirmed
mother,
Herndon.
help from her
Jeannie
but
viction
reversed
PFO verdict be-
bring
her to
D.W.
Herndon instructed
Appellant’s
cause
documentation of
place
employment. When Herndon
her
prior felony convictions in Illinois did not
head
D.W.
not hold his
noticed that
could
judicial
statutorily required
contain the
transported him
up, she and Mrs. Thomas
Appellant
certification. KRS 422.040.
Hospi-
at
emergency
to the
room Lourdes
(1)
claiming
review
there
seeks further
tal.
support his
was insufficient evidence to
initially
hospital,
At
Mrs. Thomas
criminal
in the second
conviction of
abuse
condi-
knowing
denied
the cause D.W.’s
(2)
degree;
the Commonwealth exercised
Later,
the attendant nurse
tion.
she told
peremptory strikes in
Bat
its
violation
heating
into
had stuck his head
he
Kentucky,
106 S.Ct.
son
U.S.
vent,
leading
nurse
believe
(1986);
and
an
cause physical injury serious Appel-
There is also the evidence that lant fed the of milk (c) D.W. mixture torture, Causes cruel confinement a castor oil from bottle that contained co- punishment; or cruel person to a Ap- caine. While witness testified that (12) less, years age twelve or of or pellant cocaine, knew the bottle contained helpless is physically who or men- jury the that was free infer he did. tally helpless. Sawhill, Ky., Commonwealth v. aOn motion for a directed ver (standard (1983) 3, 4 review is acquittal, dict of all fair and reasonable the same whether conviction based on inferences are drawn in the Common evidence). direct or circumstantial We wealth’s favor. Commonwealth Ben conclude the sufficient that evidence was ham, Ky., 816 S.W.2d jury beyond for a reasonable to believe learning ingested After D.W. that Appellant guilty reasonable doubt Valium, quantity Appellant substantial Benham, of wanton criminal abuse. did not proper seek medical treatment but S.W.2d at 187.
instead him a remedy fed home of milk II. BATSON ISSUE. Appellant
and castor oil. asserts that the precluded Commonwealth was from ad again with the We are confronted vancing theory per- use of recurring this wanton criminal tension between the 1859, 1866, 114 352, 359, 111 S.Ct. protec- challenges equal and the U.S. emptory opinion)). (plurality racial dis- right against purposeful tion L.Ed.2d 395 process. categor in the that demeanor is jury crimination selection claims supra, Kentucky, expla ically inadequate Pursuant to Batson as race-neutral challenged prosecu- the defense team the He is peremptory nation for a strike. Elem, strikes to excuse peremptory tor’s use of As stated Purkett mistaken. all four African-American members 131 L.Ed.2d S.Ct. U.S. prosecutor initially jury panel. curiam), stated has er (per juror that he struck one because his and third roneously combined second history Purkett, criminal but could not remember In inquiry. steps of Batson why Upon he struck others. re-exam- Supreme rejected States Court United notes, ining he that his office explained his notion that certain race-neu outright the juror’s sons on prosecuting one of or always pretextual tral are explanations drug charges. He stated that he struck inadequate: jurors solely on the other two the basis step It is not until third demeanor, expressions, their facial and re- justification be- persuasiveness of sponsiveness during Noting voir dire. step relevant —the which comes may racially case have this been oppo- trial court determines whether charged, Appellant African- given that his burden of nent of strike carried American, whereas his co-defendant wife At proving purposeful discrimination. victim, D.W., Caucasian, Ap- and the are stage, justi- fantastic implausible pellant claims that the Commonwealth (and will) may probably fications racial pretext used demeanor dis- *6 purposeful to be for dis- pretexts found in excusing crimination two of the four that a trial say crimination. But jurors. African-American silly a may judge choose disbelieve three-step Batson established a is step three superstitious reason at process determining prose a whether quite saying from that a trial different challenges cutor’s peremptory violate the inquiry must the at judge terminate First, Equal Protection the defen Clause. reason is step two when the race-neutral a prima dant must show facie case of racial superstitious. The latter violates silly or discrimination. If trial is the court satis the burden principle the ultimate with the showing, fied defendant’s bur motivation persuasion regarding racial the prosecutor den shifts to to state race- with, from, never rests and shifts the peremptory neutral reasons opponent the strike. strikes. The trial court then deter must 768, (emphasis at 1771 Id. at 115 S.Ct. mine whether defendant has sufficient added) Eighth holding (reversing Circuit’s ly proven purposeful discrimination. Bat he statement that did prosecutor’s son, 93-98, 1722- 476 at 106 S.Ct. at U.S. per inadequate). juror’s like looks was se 24. A “is not a reason race-neutral reason sense, that does not stated his makes but reason prosecutor Because the 769, 115 deny protection.” at jurors equal Id. striking reasons for four 1771; McCurdy Montgomery v. need to if a S.Ct. at question, there determine Cir.2001) (6th thus, made; County, 240 F.3d showing facie we prima (“This need not be explanation non-racial proceed step. to the Common second plausible, persuasive, or even Snodgrass, Ky., particularly wealth v. 831 S.W.2d neutral.”) (internal York, quota- (citing long New so Hernandez v. omitted). tions and citations See peremptory against ju- also used a strike (trial Snodgrass, ror, 831 S.W.2d at court ju- claimed he did so because accept can prosecutor’s reasons face youth, juror though ror’s even value). As demeanor is a ex race-neutral forty-three years old. S.W.3d at planation, the Commonwealth itsmet bur Here, solely prose- the issue turns on the den of proof, shifting the back to burden credibility judge’s opportu- cutor’s and the Marrowbone, Appellant. United States v. nity personally observe demeanor of (8th Cir.2000) (“Inatten 211 F.3d prosecutor jurors. both the and As tiveness and demeanor can be race-neutral such, there is in the nothing upon record Forbes, reasons.”); States United 816 which to base finding clear error. (5th Cir.1987) 1006, 1010-11 (prosecu F.2d assumption tor’s juror’s pos intuitive III. IDENTIFICATION OF ture being and demeanor that she resented REAL EVIDENCE. reason). in court was race-neutral See When Jeannie Herndon went to the also Ky., 793 Stanford Thomases’ rented home to mobile retrieve (juror’s flashy S.W.2d man daughter’s dress, size, belongings, her she found a ner of perceived “slow reasons). green, plastic, twenty-ounce ness” Mountain were race-neutral containing chunky, crys Dew soda bottle Although a prosecutor theoreti talline, white residue. Because she knew cally could fabricate a demeanor-based a milk Appellant had fed D.W. pretext racially-motivated for a perempto bottle, castor oil such a mixture from strike, ry step the third allevi Batson Herndon, wearing gloves, placed bottle ates this concern court permitting the plastic garbage bag knotted it. prose determine whether it believes the Jerry Jones, She then called Detective State, cutor’s Yarborough reasons. case, investigating who was and told (en 896 (Tex.Crim.App.1997) him of her discovery. Jones told Herndon banc) (“[Sjubjective venire evaluations of keep the bottle he would and that come members disguise could used to viola However, by her house and it. retrieve he tions of Equal Protection But Clause. *7 failed to do so. Herndon stored the bottle this does not mean that such evaluations in daughter’s her attic with her other be must always weight. be held to have no trial, days longings. Six before Herndon Trial judges ability are not without to de bottle, remembered the found it in pretexts.”). tect her Given the trial court’s in plastic attic still the unique ability garbage bag, to evaluate the demeanor of jurors both to A prosecutor, gave prosecutor. the and the its it the test of the ruling clearly stands unless in erroneous. residue the bottle it to revealed be (The Washington 34 cocaine. bottle was not tested for the (2000); oil.) S.W.3d of milk presence or castor Stanford Commonwealth, 793 Ap S.W.2d at 114. Appellant contends that the
pellant points in nothing to the record that Commonwealth did not introduce sufficient compels tous disturb the trial court’s find to ing. prove a that the bottle contain Washington This is not case like the ing where it the cocaine residue was same bot was clear the record the prosecutor he used to mixture of milk pretexts striking offered an tle that feed the was, juror. or, it Washington, In and castor oil to if that the African-American D.W. prosecutor striking the first denied was in the he so the cocaine bottle when used juror then, it proven after was that he had with KRE begins it. Our discussion tools, bags, 901(a), required objects the have included governing foundation fiable bottles, tires, piece rope). a Undoubted- of tangible for the admission evidence: ly, twenty-ounce green, plastic, millions of requirement of ... The identification as soda bottles have been Mountain Dew admissibility a precedent condition to is However, only one was manufactured. to by sup- satisfied evidence sufficient after inside the Thomas residence found port ques- that the in finding matter fed milk and castor oil D.W. the claims. proponent tion is what the Thus, Appel- mixture from such bottle. Logically, proper requires foundation the to the admission challenge primary lant’s proffered the proponent prove that evi the is whether condition of the evidence actually dence the same evidence in unchanged with re- the bottle remained in question the event and that it volved He spect to the of the cocaine. presence materially unchanged from the remains reason, good challenge with mounts such a until time of event its admission. Bea exponentially in- as the cocaine residue Commonwealth, Ky., son v. 548 S.W.2d value probative creases bottle’s 835, 837 See also on McCormick delicti, ie., showing proving corpus (John ed., § Strong at 8 Evidence W. how into D.W.’s cocaine was introduced ed.1999). necessary 5th foundation body. depends upon the nature of the evidence. Thus, required foundation lies readily impervi Evidence identifiable and continuum, of the somewhere the middle change may ous be admitted based sole object’s as to testimony between mere ly testimony appears be on it proof of chain of identity and condition object unchanged in an actual condition. Beason, custody. S.W.2d 837. See also Commonwealth, Ky.,
Grundy v. 25 S.W.3d of an article Suppose that condition (2000) (same). However, the more is critical in the case.... The issue evidence, fungible significant the more chain-of-custody very weak and leaves condition, higher susceptibili its or the its judge’s mind. serious doubt ty change, the the foun more elaborate ... each testified that However witness E.g., Rabovsky dation must v. Com be. the exhibit was the he believed monwealth, Ky., 973 object previously he had seen and same (laboratory-tested sample); blood Mollette appeared the same condi- Bd., Pers. Ky. Ky.App., alone, 997 S.W.2d Standing testimony .... tion (1999); Gianelli, Paul C. Chain Cus admis- support would not the exhibit’s Evidence, tody Handling testimony Real logically .... sion Yet *8 (1983) (“[I]f 527, 20 L.Rev. 537 admissible, Am.Crim. and the cumula- relevant and object, merely the an its condition of not testimony the and the tive effect of issue, identity, is relevant a chain of per- the chain-of-custody might evidence may custody required object. be to establish that judge suade the to admit the altered....”). object had not been Imwinkelried, a fu supra, at Such is unusual nor neatly evidence here does not fit sion of standards neither The recog The near universal category. Ordinarily, unprecedented. into a bottle either readily custody that chain of need is to be a identifiable nition considered Imwinkelried, principle. Ra object. The be illustrates this Edward J. absolute Mollette, 8; Evidence, 997 Original bovsky, 973 S.W.2d at Real Identification of (1973) (common 145, of the co presence at 495. 61 150 S.W.2d Mil. L.Rev. bottle, itself, make more readily identi- does not qualified that have as caine items 780 readily
or less hit on identifiable the one was the head with it unable to it); which of milk fed positively identify Comment, mixture Precondi But, and castor oil to presence D.W. its is tions Admission Demonstrative Evi of what elevates to a dence, that act criminal of- 61 Nw. U.L.Rev. 479 Thus, proof fense. stronger (“The than mere may situation arise where there are identification is required dispel concerns directly no witnesses can who connect the that the cocaine entered the bottle after object with place injury. and time ie., act, the occurrence of the to establish such One case is where an apparently rele that the materially unchanged bottle was object shortly vant found is after the time from the time of act until the time its place at issue and close to the at issue. In contents were tested. situation, analysis this of physical facts surrounding finding attempt and an
Appellant first claims that because by event, indicate those facts the certain Herndon did not relative witness the she ty of the testify impor could not that the identification become the bottle she found methods.”). one trial was the he feed the milk and tant See also State v. used Shelman, castor oil to we to accept N.C.App. D.W. Were 584 S.E.2d argument, any real (unnecessary evidence collected prove exact his testifying eyewitness someone other than a tested); drugs they tory before were Bohe, (“If would excluded. State v. be Imwinkelried, supra, [the (N.D.1989) strictly N.W.2d (“By question, they courts] had addressed the interpreting [Appellant’s] argument, no probably held would have that if other physical evidence would be un admissible similarity sufficiently perva evidence is police less the actually officers witnessed sive, personal testimony is unnecessary. the crime or event physical of which the similarity It is the fact of which renders evidence came about.... would [TJhere relevant; logically the evidence always custody defect in the chain of principle, similarity the fact admits of physical unless the evidence was retrieved proof. both direct circumstantial Di immediately after the commission of the rect, personal testimony similarity crime.”). We have never real held that unnecessary.”). per eye evidence se inadmissible absent sufficiently The Commonwealth linked testimony witness direct In evidence. the bottle to crime. found Herndon fact, permitting our rule identification ap- the bottle at the scene of the crime by linking it to the events proximately days five after fed time, question by place, and circumstance green, plastic, twenty- the victim from a Appellant’s argument. belies Barth v. Mountain bottle. testified ounce Dew She subsequently white residue (2001) (sticks as possible weap admissible positive cocaine was in the bot tested they on used beat victim because it. tle when she found These facts illus back, though matched welts on even his probability trated reasonable weapon victim never saw with he which in beaten); admitted into evidence was the bottle Grundy, S.W.3d at *9 (concrete strumentality by intro which cocaine was found at scene crime admissible body. into v. Com possible weapon although duced D.W.’s Cook victim did not Cf. monwealth, 51, object Ky., 401 S.W.2d 53 see the used to strike him in the (blue head); allegedly paint back of his v. stain on block Sweatt Common wood wealth, 520, Ky., at a on its paint 550 S.W.2d 523 thrown ear with blue crime). (gun though admissible even victim who wheels linked the block to the
781 (3d Jackson, 967, F.2d 973 this of v. 649 evidence falls short absolute States While Cir.1981) (internal and citation identity, quotation of our not proof require law does omitted). Commonwealth, Thus, trial court’s decision it. 142 Higgins See (1911) (“The Id.; 647, 1135, an abuse of discretion. Ky. 134 S.W. 1138 stands absent (trial grant- at court proof positively Grundy, need not show the connec- 25 S.W.3d 80 tion; required foun- must proof rendering but there be ed wide discretion because of depends on the nature the evi- probable the inference reasonable or from dation Lane, dence); in also United States v. place its nearness time and other see (D.C.Cir.1979) (“So circumstances.”). 961, See Johnston v. 591 F.2d 962-63 also State, 514, (Ind.1989) (ina- court that as a long persuaded 541 as the N.E.2d 516 bility conclusively to that matter normal likelihood the evidence prove items of jury in bag adequately safeguarded, found were the ones in has same used been admissibility); permitted the crime fatal to should to consider and assess not State Sneed, 735, surrounding (La.Ct.App. light 571 So.2d 740 it of circum- 1990) (“lack stances.”). positive goes of identification weight to rather than of ad flowing from the dis Naturally Comeaux, missibility”); 524 State So.2d cretionary inquiry nature is the of this 863, (La.Ct.App.1988) of (pieces glass an chain custo principle that unbroken of burglary from a laying outside and not dy unnecessary. of generally “Chain collected until three months after itself, not an but a term custody” is end though crime admissible even witness of an describing proving of art means “scientifically not they could state” that McCormick, object’s authenticity. supra, came from the window during broken (“[FJoundational 212, requirements § at 9 crime; positive of goes lack identification essentially requirements logic, are of weight, admissibility); not DeLuna v. art.”). go Any gaps not of to the rules State, (Wyo.1972) 501 P.2d 1024-25 weight, admissibility rather than the of the (positive proof of identity of instrumentali evidence, only the proponent need ty required); Imwinkelried, of not crime probability a reasonable demonstrate supra, (identity at proven by can be any it has not been material altered evidence). circumstantial respect. McKinney v. (2001); Rabovsky, contends next 60 S.W.3d 8; Mollette, at prove Commonwealth was unable 997 S.W.2d Thus, that the in line integrity pre of the bottle was with liberal chain it was mere custody requirements, served because unable to account fact period insecurely for it for time. misplaced, an extended This evidence has been argument sufficiency kept, significant period relates or unstored admissibility. se proof per that the cocaine did not enter the time is not fatal States, bottle he used it feed the mixture Gilmore v. United A.2d after (bottle (D.C.1999) milk initially containing and castor oil to D.W. We bomb requirement unchanged although police note that admissible officer residue light eight “to be of the it months and then misplaced condition is read can); paint found in his locker in a State principle that such evidence is admissible Bales, 246 Iowa N.W.2d judge if the trial determines that there is a v. (1995) (that not until probability reasonable the evidence evidence was found weight after affected any has been altered in material re two months the crime Sneed, admissibility); time of rather than spect since the the crime.” United *10 782 (evidence
So.2d at 740 intermeddlers, that was misplaced and “speculation ... is not years ten inexplicably reappeared enough destroy ... integrity.” Brown in admissible); Comeaux, sheriffs office Commonwealth, v. 738, 449 S.W.2d (three-month 524 So.2d at (1969). 864-65 delay; 740 Pendland, See also 463 outside, evidence had been sitting at the S.W.2d at (noting 133 the absence of evi- crime); Bohe, scene of the 447 N.W.2d at dence of tampering). No (one-month delay in finding tire suggests record that Herndon tampered iron exclusion); after crime did not require with the any bottle or that other individual State, Kelly 125, 52 Okla.Crim. 3 P.2d altered it while was stored in her home. (evidence 244 (App.1931) found on defen Nor does the record indicate that in- premises dant’s several months after the tampered termeddlers with the bottle be- offense and his incarceration properly ad fore its recovery. There was no evidence mitted). however, Notably, this is not a anyone other than and his case proponent where the utterly unable wife had access to their residence after the to account for the whereabouts of evidence incident occurred and before Herndon over period of time. After finding the found the bottle. We conclude that bag containing the bottle stored in the trial court properly exercised its discretion home, attic of her Herndon was able to in admitting the bottle and the results account for its whereabouts while it was the test of its contents. Gilmore,
“missing.”
Dissenting Opinion by Justice came the testi- Mountain bottle from Dew JOHNSTONE. mony Jerry Jones and Jean- Detective respectfully I dissent. testified nie Detective Jones Herndon. say not an that It is overstatement stated, during a sec- Appellant’s wife was critical to the Mountain Dew bottle interview, child Appellant fed the ond against Appel- case the Commonwealth’s oil mixture from the milk castor And, majority opinion ac- lant. as the Jean- green, plastic Mountain Dew bottle. in knowledges, the Mountain Dew bottle Appellant’s later testified that nie Herndon presented this case a novel issue concern- fed wife told her However, requirements. foundational ing Both child from Mountain Dew bottle. majority’s agree I do not with the conclu- should have been of these statements was that a sufficient foundation estab- sion admitted into evidence. Detective Jones’s for introduction of the bottle. The lished admitted in clear violation statement was surrounding the circumstances Mountain in of the set forth Bruton v. United rule bottle, coupled intensely Dew with its dam- of a non- prohibiting the admission States defense, on aging Appellant’s effect war- in- confession that testifying codefendant’s stronger ranted a foundation for admis- joint at a trial. 391 culpates the defendant sion. foundation that was established 20 L.Ed.2d U.S. 88 S.Ct. incomplete, part in on inad- was and relied testimony, as Herndon’s Jeannie testimony. missible used a used to establish child, The most Mountain bottle feed the problem obvious the foun- Dew clearly hearsay. Inexplica- that it link the dation is failed to bottle to inadmissible bly, and Jeannie Appellant. custody the chain both Detective Jones’s While satisfactorily permitted established that bottle Herndon’s testimonies were objection counsel. taken from Thomases’ home was without defense Nonetheless, essentially day Appellant’s I believe that same condition as the attic, by the ad- rights Herndon it out of her were affected pulled Jeannie substantial testimony, in turn satisfactory linking laid mission this which foundation was admission of the Mountain Appellant. the bottle “The Com- critical to bottle, identifying damaging bears Dew the most monwealth the burden I case. tracing custody an circumstantial purely chain of from the otherwise pursuant its reversal to RCr final custodian.” Com- believe that defendant Hubble, 10.26is monwealth warranted. (1987) (emphasis original). Appel- stated that he fed the child the lant never STUMBO, J., joins this dissent. milk and castor mixture from Moun- oil bottle; only jury Ap- Dew heard tain state that he fed child the
pellant of a
mixture without identification certain Moreover, did
vessel. the Commonwealth of milk presence
not test the bottle for the oil, presumably could
or castor
test that
notes
two “Bruton violations” apparently
aside,
That
the most relevant fac
occurred during this trial. Bruton v.
tors are the circumstances surrounding the
States,
123,
1620,
United
391 U.S.
88 S.Ct.
preservation of the evidence and the likeli