Friday, September 7, 2012

KY COA July 27 - Douglas - KASPER records

Veronica Douglas v. Com., 2011-CA-000066-MR, 2012 WL 3054118 (Ky. App. July 27, 2012) (to be published)-

The Court of Appeals reversed Ms. Douglas’ second degree manslaughter conviction after a doctor called by the prosecutor as an expert was improperly allowed to testify to prejudicial information from KASPER records about multiple prescriptions Douglas had for painkillers when those drugs were not found in her system at the time of the accident.

Douglas questioned on appeal that KRS 218A.202 was violated by the disclosure of Douglas’ KASPER records to not only the prosecutor’s expert witness but also to the prosecutor himself without a court order. The Court of Appeals held that indeed the prosecutor and the doctor hired by the Commonwealth should not have been given Douglas’ KASPER report. The Court noted that this constituted a felony under KRS 218A.202 (12) by the persons transmitting the report to those people. (This statute has since been amended to make the first offense a Class B misdemeanor and each subsequent offense a Class A misdemeanor.)

The Court held:

In the present case, neither the prosecutor nor Dr. Davis qualified under KRS 218A.202 as a person authorized to receive the KASPER report. We pause to note that this is disconcerting because this appears to be a recurring problem in the Commonwealth, i.e., that prosecutors and other unauthorized people are being provided copies of KASPER reports without court orders directing those people to be given such reports, see Bartlett, 311 S.W.3d at 228 n. 2, without fear of prosecution.

Id. at 9.

Defense attorneys should be familiar with the provisions of KRS 218A. 202 and the cases interpreting KASPER and object if it appears that the prosecutor, police or any other persons have been illegally supplied with a KASPER record for their client

Contributed by Kathleen Schmidt