KY COA - Burton - Expert Testimony - DRE

Commonwealth v. Burton - Affirming

 The Commonwealth appealed the trial court’s refusal to allow the testimony of Dr. Greg Davis as to whether or not the defendant’s behavior after the car wreck was consistent with intoxication.  The Court of Appeals, in a to-be-published opinion, held the trial court did not abuse its discretion in disallowing Dr. Davis’ testimony because his opinion as to the defendant’s behavior was equivocal—the defendant’s behavior was consistent with drug use, or trauma, or both.

                

The Commonwealth also sought to use the testimony of a Drug Recognition Expert (DRE) to explain to the jury the factors it uses to determine if someone is impaired.  The COA held the trial court did not abuse its discretion because the DRE did not personally observe the defendant nor did the DRE subject defendant to drug recognition testing.  

Margot Merrill argued the case before the trial court and Shannon Smith briefed the case on appeal. 

Contributed by Jason Apollo Hart

Featured Case - Lukjan

Court of Appeals, 2010-CA-001509-MR

Susan Lukjan v. Commonwealth

Audra J. Eckerle, Judge, Jefferson County

To be Published Opinion, Reversing and Remanding

** ** ** ** **

Before: Taylor, Chief Judge; Acree and Vanmeter, Judges.

Opinion by Judge Acree

Lukjan was convicted of arson, burning personal property to defraud an insurer, and committing a fraudulent insurance act over $300, and sentenced to twelve years.  The COA reversed the conviction, and remanded for a new trial. Lukjan was denied a defense when the circuit court refused to allow the defense arson expert to testify on the ground that he wasn’t a licensed investigator as required by KRS 329A.015 and KRS 329A.010 (prohibiting an individual from holding himself out to the public as a private investigator).  On remand, the circuit court must judge Lukjan’s proffered experts based on KRE 702 and caselaw. Under those standards, licensure is not necessary to qualify as an expert, though it may be a factor. See Fugate v. Commonwealth, 993 S.W.2d 931 at 935.

 The COA also reversed the circuit court’s decision to admit the prosecution’s arson opinion evidence without either an adequate Daubert hearing, specifically without examining “the portions of the record which would have enabled the court to determine the reliability and relevance of the evidence.”

Practice note:    Consider carefully what is contained in the “certified business record” you are trying to get admitted.  The COA held that a lightning strike report wasn’t admissible as a business record under KRE 902(11), because the certification said the data was “detected and recorded by National Lightning Detection Network Sensors, and processed by “[h]ighly refined algorithms[.]”  The COA held the proffered report appeared to be scientific evidence whose admissibility is governed by KRE 702 and not a business record “as contemplated by KRE 803(6) and KRE 902(11).”  If the record you are trying to get admitted was not made by a human being, you may need to subpoena the custodian. 

Contributed by Susan Balliet

Featured Case - Hurt - Improper Expert Testimony

Paul Hurt v. Commonwealth, 10-CA-343-MR, unpublished. 

While unpublished, this is an important case for two reasons.  Hurt was convicted of several counts of sodomy and sexual abuse against his step-daughter.  Even though there were no physical evidence of any abuse, the jury still convicted him based in part on the testimony of Dr. Sally Perlman.  Dr. Perlman examined the step-daughter after her allegations of sexual abuse and concluded there were no findings of sexual abuse.  However, Dr. Perlman was able to testify that the step-daughter, during the exam, laid “there like a wet noodle.”  Because the child was so relaxed during the examination, Dr. Perlman testified that she believed the child had been sexually abused.  According to the Kentucky Supreme Court, Dr. Perlman’s testimony should not have been allowed - it is improper to admit "evidence of a child’s behavioral symptoms or traits as indicative of sexual abuse . . . on grounds that this is not a generally accepted medical concept.”  Bell v. Commonwealth, 245 S.W.3d 738, 745 (Ky. 2008), overruled on other grounds by Harp v. Commonwealth, 266 S.W.3d 813 (Ky. 2008)." 

Because testimony that a child’s relaxed behavior was consistent with that of a child who had been sexually abused was inadmissible, trial counsel performed deficiently in failing to object to this testimony.  The Court of Appeals did not reverse Hurt’s conviction due to the Court’s belief that the detailed nature of the step-daughter’s testimony would not have changed the trial outcome, i.e., there was no prejudice.  Even so, chances of a defendant winning at trial should be improved by keep this inadmissible evidence out. 

Practice Tips:  1) use a Daubert hearing to prevent this type of behavioral expert from coming in; and 2) object if  “wet noodle” evidence does come in.

Contributed by Robert Yang