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Burchett v. Commonwealth1/23/2003
il such a proposal comes before the Court, I believe we should apply the Rules of Evidence as previously adopted, understood, and interpreted by the Court, and should not undermine predictability and consistency in the law of evidence by reevaluating common law notions of relevancy that were accepted when the Rules were adopted and that this Court intended to continue after their adoption. Accordingly, I believe the trial court committed reversible error when it allowed the Commonwealth to introduce evidence of Appellant's marijuana "habits" in the face of an unbroken line of precedent from this Court prohibiting the introduction of habit evidence, and I would reverse the Court of Appeals and remand Appellant's indictment to the trial court for a new trial.
DISSENTING OPINION BY JUSTICE COOPER
On December 12, 1997, Appellant George H. Burchett, Jr., drove his vehicle past a stop sign without slackening speed and into the Bloyds Crossing intersection of Kentucky highways 61 and 569 in Green County, Kentucky, and collided with a vehicle being driven by Sherman Darnell. Darnell, who had the right of way at the intersection, was resultantly killed. Appellant was indicted for manslaughter in the second degree and, following a trial by jury, convicted of reckless homicide and sentenced to imprisonment for five years. To prove a criminal mens rea, i.e., wantonness or recklessness, as opposed to mere negligence, the Commonwealth sought to prove that Appellant was operating his vehicle under the influence of drugs and/or alcohol. See Estep v. Commonwealth, Ky., 957 S.W.2d 191, 193 (1997) (wanton murder conviction upheld on evidence of the defendant's ingestion of controlled substances and subsequent erratic operation of a motor vehicle). Specifically, the Commonwealth sought to introduce evidence of Appellant's own statements made at the scene of the collision and/or subsequently at the hospital that he "drinks anywhere from one-half to three-fourths of a gallon a day of vodka" (one-half gallon of vodka was found in Appellant's vehicle) and that "I smoke one joint [marijuana cigarette] in the morning and one at night." He also made conflicting statements at the hospital as to whether he had smoked marijuana on the day of the fatal collision.
A laboratory test of a sample of Appellant's blood was negative for alcohol content. However, a drug screen of Appellant's urine sample was positive for Valium, Tylenol 3, and marijuana. The Commonwealth also had evidence that Appellant "had the giggles" on the day of the collision and had left his work duties (stripping tobacco) on numerous occasions that day for short visits to his automobile; and that the known effects of marijuana consumption include a feeling that everything is fine, a better mood, talkativeness, a lessening of motor control, and altered judgment.
Appellant moved in limine, KRE 103(d), to suppress his admissions as to his alcohol and marijuana habits on grounds that the statements were either inadmissible character evidence, KRE 404(x), or inadmissible evidence of other crimes, wrongs, or acts, KRE 404(b). In fact, as correctly noted in the plurality opinion, ante, Appellant's admissions constituted neither character evidence nor evidence of other crimes, wrongs, or acts, but evidence of habit. In view of the laboratory test results, the trial judge, in weighing probative value against the danger of undue prejudice, KRE 403, sustained Appellant's motion to suppress the evidence of his admitted alcohol habit but overruled the motion to suppress the evidence of his admitted marijuana habit.
Obviously, Appellant's admission that he smoked two marijuana cigarettes every day, one in the morning and another at ni
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