Commonwealth of Kentucky v. Barbara Burke ( 2022 )

RENDERED: SEPTEMBER 9, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1446-MR
COMMONWEALTH OF KENTUCKY APPELLANT
v. APPEAL FROM ROCKCASTLE CIRCUIT COURT
HONORABLE JOHN G. PRATHER, JR., JUDGE
ACTION NO. 19-CR-00171
BARBARA BURKE APPELLEE
OPINION
AFFIRMING
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BEFORE: DIXON, TAYLOR, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: The Commonwealth of Kentucky (“Appellant”)
appeals from an interlocutory order of the Rockcastle Circuit Court granting the
motion of Barbara Burke (“Appellee”) to sever the charge of operating a motor
vehicle under the influence of alcohol from the remaining charges. Appellant
argues that Appellee failed to demonstrate prejudice sufficient to sever the charges,
that the offenses occurred in the course of a single act or transaction, and that the
evidence supporting the charges is inextricably intertwined. Appellant requests an
opinion reversing the order severing the charges. After careful review, we affirm
the order on appeal.
FACTS AND PROCEDURAL HISTORY
On October 11, 2019, a Rockcastle County grand jury indicted
Appellee on one count of operating a motor vehicle under the influence of alcohol
(“DUI”), assault in the third degree, menacing, and disorderly conduct in the
second degree.1 The charges arose from an incident occurring on September 18,
2019, when Kentucky State Police troopers responded to a caller reporting a single
vehicle accident in Rockcastle County, Kentucky. Upon arrival, the troopers
observed an unoccupied truck in a ditch. Appellee was observed sitting in another
vehicle at the scene, which was not involved in the accident. Upon making contact
with Appellee, the officers suspected that she was under the influence of alcohol
and that she was the driver of the truck.
Trooper Brian Maupin would later testify that Appellee initially stated
that she was driving the truck and had to swerve to avoid oncoming traffic which
caused her to drive off the roadway. Appellee then changed her story and stated
that she was a passenger in the truck and the driver had fled on foot. Trooper
1
Kentucky Revised Statutes (“KRS”) 189A.010, KRS 508.025, KRS 508.050, and KRS
525.060.
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Derek Combs’ citation stated that Appellee failed the “one-leg stand” field sobriety
test. Though she initially cooperated with the troopers, Appellee became agitated
and struck Trooper Maupin in the chest with an open hand. Appellee was arrested
and transported to the Mount Vernon police department, where she refused to
submit to a breathalyzer test.
After the indictment, the matter proceeded in Rockcastle Circuit Court
whereupon Appellee filed a motion to sever the DUI charge from the assault
charge.2 In support of the motion, Appellee cited Kentucky Rules of Criminal
Procedure (“RCr”) 8.31 and Rearick v. Commonwealth, 858 S.W.2d 185, 187 (Ky.
1993). Appellee argued that the charges should be severed in part because “there
was never any DUI stop” and there was little or no evidence that she was driving
the truck. Appellant argued that the charges should not be severed because they
arose from one act or transaction, the facts supporting the charges are intertwined,
and Appellee showed no prejudice supporting severance.
At a pretrial conference on November 12, 2021, to consider whether
probable cause existed to support the DUI charge, the court noted that though it
was Appellant’s practice to try DUI charges in conjunction with other felony
charges, the court was not going to allow it in this instance because it did not want
to give Appellee a basis for appeal should she be found guilty on the felony assault
2
Appellee’s motion did not address the charges of menacing and disorderly conduct.
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charge. On November 23, 2021, the Rockcastle Circuit Court entered a motion
granting Appellee’s motion to sever, and this appeal followed.3
STANDARD OF REVIEW
Trial courts have broad discretion when making joinder decisions and
such decisions will not be reversed on appeal absent a showing of clear abuse of
discretion and prejudice. Jackson v Commonwealth, 20 S.W.3d 906, 908 (Ky.
2000). An abuse of discretion occurs if the trial court’s ruling is “arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v.
English, 993 S.W.2d 941, 945 (Ky. 1999).
ARGUMENTS AND ANALYSIS
Appellant argues that the Rockcastle Circuit Court committed
reversible error in severing the DUI charge from the assault charge. It contends
that the offenses occurred in the course of a single act or transaction, and that the
evidence supporting the charges is inextricably intertwined. Appellant argues that
Appellee failed to demonstrate that joinder of the charges would prejudice the
proceedings against her. After directing our attention to the Civil Rules and case
law, Appellant argues that there is no basis for requiring it to conduct separate
3
If certain elements are met, the Commonwealth may bring an appeal from an interlocutory
order in a criminal proceeding. See KRS 22A.020(4) and Evans v. Commonwealth, 645 S.W.2d
346, 347 (Ky. 1982), wherein the Kentucky Supreme Court recognized that “KRS 22A.020(4)
authorizes the Commonwealth to appeal from an interlocutory order[.]”
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trials on the DUI and assault charges, as the alleged assault occurred in the midst
of the DUI investigation. It requests an opinion reversing the order on appeal so
that the charges may be tried together.
Two (2) or more offenses may be charged in the same
complaint or two (2) or more offenses whether felonies
or misdemeanors, or both, may be charged in the same
indictment or information in a separate count for each
offense, if the offenses are of the same or similar
character or are based on the same acts or transactions
connected together or constituting parts of a common
scheme or plan.
RCr 6.18. Further,
[i]f it appears that a defendant or the Commonwealth is
or will be prejudiced by a joinder of offenses or of
defendants in an indictment, information, complaint or
uniform citation or by joinder for trial, the court shall
order separate trials of counts, grant separate trials of
defendants or provide whatever other relief justice
requires. A motion for such relief must be made before
the jury is sworn or, if there is no jury, before any
evidence is received.
RCr 8.31.
The circuit court’s ruling on Appellee’s motion to sever is presumed
to be correct, and the duty to prove it was not correct rests with Appellant.
Every presumption is in favor of the correctness of the
decision of the trial court, and in order to warrant a
reversal, error must affirmatively appear from the record.
This presumption is one with which this court begins its
examinations of every case brought before it, and one
which every appellant must overcome in order to secure a
reversal of a judgment. In other words the burden is on
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the appellant to show error affecting the judgment
rendered below.
Oakes v. Oakes, 204 Ky. 298, 301-02, 264 S.W. 752, 753 (1924).
The question before us is whether Appellant has demonstrated that the
ruling of the Rockcastle Circuit Court to sever the DUI from the remaining charges
constitutes clear abuse of discretion, i.e., that the decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles. Jackson, supra;
English, supra. After closely examining the record and the law, we find no abuse
of discretion. The circuit court’s ruling to sever the charges was not arbitrary or
unreasonable, as the court was persuaded that the evidence supporting the DUI
charge – which appears from the record to be limited – should not be presented
concurrently with the evidence supporting the assault charge. In addition, we do
not conclude that the ruling was unfair or unsupported by sound legal principles, as
Appellant may still pursue all charges though severed, and the case law holds that a
trial court has discretion in ruling on the motion to sever.
Further, Appellant has not cited to any case law in the
Commonwealth, nor has our research revealed any such cases, wherein a trial
court’s decision to sever charges has been found to constitute an abuse of
discretion. Further, our search of extra-jurisdictional case law, at both the state and
federal levels, has revealed no such cases. The extant case law centers almost
exclusively on whether a trial court’s decision to deny a defendant’s motion to
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sever charges prejudiced the proceedings against him.4 Once the determination to
sever charges has been made in favor of the accused, there is no support in
Kentucky jurisprudence for a finding that the decision constituted “prejudice and
[a] clear abuse of discretion.” Jackson, 20 S.W.3d at 908. Presumably this is
because the prosecutor, though inconvenienced by separate trials on severed
charges, may nevertheless conduct all necessary proceedings against the accused to
carry out the ends of justice.
CONCLUSION
The Rockcastle Circuit Court’s ruling to sever the charges against
Appellee is presumed to be correct, and the burden rests with Appellant to
demonstrate that it constituted a clear abuse of discretion. Having not met that
burden, we affirm the order of the Rockcastle Circuit Court.
DIXON, JUDGE, CONCURS.
TAYLOR, JUDGE, DISSENTS AND DOES NOT FILE SEPARATE
OPINION.
4
As an example, Appellant directs our attention to Garrett v. Commonwealth, 534 S.W.3d 217(Ky. 2017), in support of its contention that the Rockcastle Circuit Court’s order severing the
charges was improper. Garrett, however, did not find that severance under the facts before it
was improper. Rather, it ruled that the trial court properly joined indictments for charges on two
separate occasions.
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BBRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Daniel Cameron James L. Cox
Attorney General of Kentucky Mount Vernon, Kentucky
Mark D. Barry
Assistant Attorney General
Frankfort, Kentucky
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