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Burchett v. Commonwealth1/23/2003
REVERSING AND REMANDING
As the result of a fatal automobile collision, Appellant, George Burchett, Jr., was convicted by a Green Circuit Court jury of reckless homicide, for which he received a sentence of five years' imprisonment. Burchett appealed his conviction to the Court of Appeals and that court affirmed. We granted discretionary review to consider the only issue raised on appeal: whether evidence that a defendant smoked marijuana on a daily basis is admissible to prove that he smoked marijuana on the day of the collision.
For the reasons discussed below, we hold this evidence to be inadmissible; accordingly, we reverse and remand this case to the circuit court.
On December 12, 1997, Sherman Darnell was killed when his vehicle was struck by Appellant's vehicle. Mr. Darnell, traveling on highway 61 in Green County, Kentucky, had the right of way and was not required to stop at the Bloyds Crossing intersection of highway 569. Appellant, traveling on highway 569, failed to stop at the intersection and caused the collision. Although Appellant initially denied running the stop sign, brake marks conclusively indicate that he skidded through the intersection. At the time of the collision, Appellant was on his way to the Taylor County Hospital to visit his girlfriend, Melissa Grider, who had given birth to their child the previous day. Appellant and Grider worked together on the farm owned by David and Dorothy Scott. On the afternoon of the collision, Grider telephoned the Scott residence and left a message for Appellant to come to the hospital as soon as he finished work. Fearing for the health of his child, Appellant left for the hospital after he received the message. The fatal collision occurred shortly afterward, around 3:40 p.m.
Soon after the collision, police trooper Whitlock began his investigation. Trooper Whitlock found an unopened, one-half gallon bottle of vodka in Appellant's vehicle. When questioned, Appellant denied that he had consumed any alcohol that day.
Appellant was then taken to Taylor County Hospital, where he was treated for his minor injuries. During his treatment and evaluation at the hospital Appellant told the emergency room nurse that he drinks "anywhere from one-half to three-fourths of a gallon a day of vodka" and that he smokes marijuana daily, "one joint in the morning and one at night." To the nurse, Appellant denied smoking marijuana the day of the collision. But Appellant later told a lab tech that he smoked "this morning." The treating physician's notes support the lab tech's version of events. A lab test of Appellant's blood later confirmed that Appellant drank no alcohol before the collision. A drug screen of Appellant's urine sample revealed the presence of three substances: benzodiazepines (e.g., Valium), opiates (e.g., Tylenol 3), and tetrahydrocannabinol (THC) (marijuana). Unfortunately, the blood sample was insufficient to test for these drugs. Appellant was indicted for second-degree manslaughter. This offense requires proof of a wanton mental state. One way to prove wantonness is to show that the defendant in a vehicle-homicide case was driving while intoxicated. See Estep v. Commonwealth, Ky., 957 S.W.2d 191 (1997). Consequently, the prosecutor intended to show that Appellant was under the influence of marijuana or other drugs at the time of his collision with Mr. Darnell. While Appellant did not contest admission of evidence that he smoked a marijuana cigarette the day before the collision, Appellant did contest the admission of any evidence that he had a habit of drinking alcohol or smoking marijuana everyday. Relying primarily on KRE 404(b) and KRE 403, Appellant made a motion in limine to suppre
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