Roger D. Burdette v. Commonwealth of Kentucky

RENDERED: FEBRUARY 16, 2023
TO BE PUBLISHED
Supreme Court of Kentucky
2022-SC-0015-MR
ROGER D. BURDETTE APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT
V. HONORABLE A.C. CHAUVIN, JUDGE
NO. 19-CR-0516
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE VANMETER
AFFIRMING
Roger Burdette appeals as a matter of right1 from the Jefferson Circuit
Court judgment sentencing him to twenty-seven years’ imprisonment for his
convictions of murder, four counts of wanton endangerment in the first degree,
operating a motor vehicle while under the influence, and failure to give right-of-
way to a stopped emergency vehicle. Burdette raises numerous issues in
support of his request for a new trial, none of which mandate reversal of his
convictions and sentence. Accordingly, we affirm.
1 KY. CONST. § 110(2)(b).
I. Factual and Procedural Background
The sad facts of this case involve a fatal vehicular collision on the
afternoon of Christmas Eve in 2018, which resulted in the death of Louisville
Metro Police Detective Deidre Mengedoht. Det. Mengedoht had pulled over a
pickup truck on I-64 for speeding, just under the Belvedere, and activated the
flashing lights on her vehicle. The Belvedere is an elevated event space located
on the Riverfront between 4th and 6th streets in downtown Louisville. The
portion of I-64 under the Belvedere is a sort of tunnel, darkened by the
overpass above. Due to the lack of a shoulder on that stretch of I-64, Det.
Mengedoht’s vehicle and the pickup truck were stopped in the right lane of the
interstate.
Det. Mengedoht approached the pickup truck and obtained the license of
the driver, Quintin Brady, who had three passengers in his vehicle: his
daughter, his girlfriend (Jasmine Parks) and Parks’s sister. Brady described
the location of his pickup truck as being under the Belvedere from the front of
his truck to the front windshield, but the rest of his truck was exposed. Det.
Mengedoht returned to her vehicle, which was entirely exposed and not under
the Belvedere tunnel, and about five minutes later, a 30,000-pound tanker
truck driven by Burdette crashed into her vehicle. The force of the collision
pushed her vehicle against a concrete wall, past Brady’s pickup truck, causing
her vehicle to ignite in flames. The occupants of Brady’s truck were able to
escape with no major injuries, but no one could get close enough to rescue Det.
Mengedoht, as the area all around her vehicle was engulfed in flames. Det.
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Mengedoht died of smoke inhalation, thermal injuries, and blunt force injuries
sustained in the collision.
At the time of the collision, Burdette was working as a commercial driver
for Metropolitan Sewer District (“MSD”). He had been working all day and had
just dropped off his last load of sludge at a treatment plant. When speaking to
law enforcement officers at the scene, Burdette stated, “I was in the center lane
– [inaudible] the slow lane, I’m sorry. And I start to switch over, and, last thing
I know – I, I’m not even sure I hit the car first, but I think I did. But I was
lookin’ to get in the other lane. And when I looked up, too late.” He further
stated that “he saw [Det. Mengedoht] from pretty far back but didn’t think she
was that close.”
When asked if he had anything to drink or had taken any medication,
Burdette said that he took high blood pressure medicine and cholesterol
medicine. Sergeant Michael Johnson observed that Burdette’s eyes were
bloodshot, his pupils appeared constricted, and he was very calm and
nonchalant for someone who had just been in such a wreck. Sgt. Johnson
testified that Burdette seemed a little slow and sluggish when responding, like
he was not processing the information as fast as a regular person. To
determine whether Burdette could safely operate a motor vehicle, Sgt. Johnson
performed several field-sobriety tests. Based on Burdette’s poor performance
on these assessments, and Sgt. Johnson’s observations of his demeanor, Sgt.
Johnson suspected that Burdette might have taken some sort of narcotic
analgesic and determined Burdette was “under the influence” while operating
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the truck. Several other witnesses at the scene testified that Burdette seemed
to be unusually relaxed or emotionless, given that he had just been involved in
a fatal collision. At trial, the defense presented proof that Burdette suffered
from hearing difficulties and often reacted slowly as a result.
Based on the circumstances surrounding the collision, law enforcement
obtained a warrant to draw Burdette’s blood. Burdette was placed under arrest
and charged with murder, four counts of wanton endangerment in the first
degree, operating a motor vehicle while under the influence, and failure to yield
right-of-way to a stopped emergency vehicle. He was transported to Louisville
Metro Department of Corrections (“LMDC”) for a blood draw. David McCarthy,
a registered nurse working at LMDC, drew Burdette’s blood pursuant to the
search warrant and also conducted a routine intake assessment of Burdette in
conjunction with him being booked into jail. The intake assessment form
included a full medical and mental-health assessment and is performed on
every inmate booked at LMDC. One of the questions on the intake assessment
form is whether the inmate has ingested any drugs or medication. Burdette
admitted to having consumed hydrocodone that day and that he takes it
sometimes, without a prescription.
The testing performed on Burdette’s blood indicated that Burdette had
ingested two drugs – hydrocodone and clonazepam2 – both of which are
2 Clonazepam is the generic medicine for the brand name klonopin.
Clonazepam is a benzodiazepine that is used to treat certain seizure disorders and
panic disorder. Howard v. Commonwealth, 595 S.W.3d 462, 466 n.2 (Ky. 2020)
(citation omitted).
4
controlled substances. Burdette did not have a prescription for either.3
Medical testimony presented at trial explained that both hydrocodone and
clonazepam affect the central nervous system, which could adversely affect a
person’s fine motor skills and reaction time, make one appear extremely
relaxed, and cause constricted pupils. Text messages retrieved from Burdette’s
cell phone were presented to the jury showing that he had sporadically
contacted someone who is not a doctor to purchase prescription drugs during
the two-year period preceding the collision. The exact type of pill he had been
purchasing was unclear from the texts. The defense presented the testimony of
three witnesses who interacted with Burdette on the day of the collision and
who testified to the effect that he did not appear to be intoxicated.
An analysis of the reconstruction of the scene, based in part on the
equipment download generated from Burdette’s tanker truck, revealed that
coming into the collision Burdette maintained a fairly constant speed of 55
m.p.h. Officer Kisling testified that he did not see lengthy periods on the brake
prior to the collision, and an inspection of Burdette’s tanker truck revealed the
brakes were in working order. In Burdette’s defense, James Sobek, an accident
reconstructionist, testified that very little light seeped into the tunnel where
Det. Mengedoht’s vehicle was parked and that the lighting would have
adversely impacted visibility. Sobek further explained that the curvature of the
road could have made it more difficult to assess lane placement and distance
3 Burdette also had Zoloft, an antidepressant, in his blood, for which he had a
prescription.
5
ahead, and that Det. Mengdoht’s vehicle was parked in an unexpected location
for a stop. Sobek acknowledged that – per the video of the collision - Det.
Mengdoht’s flashing lights on her vehicle were activated at the time. Still,
Sobek believed that Burdette need not have been doing anything wrong for the
collision to have occurred. During trial, the jury was permitted to leave the
courtroom and view the vehicles involved in the collision, which had been
transported to a street adjacent to the courthouse.
A forensic examination of Burdette’s cell phone revealed that at the
approximate time his tanker truck collided with Det. Mengedoht’s vehicle (2:15
p.m.), his cell phone was streaming a pornographic video of two individuals
engaged in oral and vaginal sex. By extracting data from Burdette’s phone,
Detective Aaron Gabhart, a member of the Secret Service Cyber Fraud Task
Force, was able to discover the actions that the phone’s user – ostensibly,
Burdette – had performed immediately prior to and during the collision. The
jury heard evidence that approximately four minutes prior to the collision,
Burdette had unlocked his phone, activated an internet browser, and began
streaming a pornographic video from the website “xvideos.com.” The phone
received the first file at 2:12 p.m. and the last file at 2:16 p.m.; the final entry
in the phone’s log was 2:20 p.m., when Burdette manually closed the internet
browser app. Det. Gabhart testified that the video from “xvideos.com” was in
the foreground of the phone’s screen during this period and contained sexual
activity with very little audible dialogue. Det. Gabhart further testified the
6
Burdette had visited “xvideos.com” several other times on the day of the
collision: at 8:53 a.m., 10:02 a.m., 12:33 p.m., 1:08 p.m., and 1:36 p.m.
The Commonwealth argued to the jury that Burdette acted wantonly with
extreme indifference to the value of human life because he was impaired and
watching a pornographic video when he collided with Det. Mengedoht’s vehicle.
During closing argument, defense counsel argued that the Commonwealth
failed to meet its burden of proving wantonness, and, if anything, Burdette
acted recklessly. Defense counsel stated: “Here’s why: You heard from Mr.
Sobek that clearly he missed something but you also heard from Roger.”
Defense counsel then played the body camera recording introduced by the
Commonwealth through Sergeant Elisha Thompson, in which Burdette is
heard saying, “Last thing I know, I’m not even sure I hit the car first, but I
think I did.”
The trial court called the parties to the bench and ruled sua sponte that
defense counsel could not use Burdette’s statement on the body camera
recording as proof of what he thought or did, since Burdette did not testify.
Thereafter, the trial court admonished the jury not to consider Burdette’s
statement to prove the truth of what he says happened that day.
Ultimately, the jury concluded that Burdette acted wantonly, and
convicted him of murder, four counts of wanton endangerment in the first
degree, operating a motor vehicle while under the influence, and failure to give
right-of-way to a stopped emergency vehicle. The trial court imposed the jury’s
7
recommended sentence of twenty-seven years’ imprisonment. This appeal
followed.
II. Analysis
On appeal, Burdette does not challenge the sufficiency of the evidence
presented. Rather, he argues the trial court made numerous erroneous rulings
which he claims resulted in a fundamentally unfair trial. Upon thorough
review of Burdette’s claims and the record, we affirm.
a. The trial court’s evidentiary rulings
Burdette argues that the trial court abused its discretion with respect to
three evidentiary rulings, each which will be discussed in turn. He contends
the evidence should not have been admitted as it did not satisfy KRE4 401’s
relevancy threshold and KRE 403’s balancing test.
A basic rule of evidence is that evidence must be relevant to be
admissible. KRE 401 provides that evidence is relevant if it has “any tendency
to make the existence of any fact that is of consequence to the determination of
the action more probably or less probable than it would be without the
evidence.” As the gatekeeper, the trial court must make a threshold
determination if the proffered evidence is relevant under KRE 401. If relevant,
then KRE 403 requires the trial court to assess whether its “probative value is
substantially outweighed by the danger of undue prejudice.” This assessment,
commonly referred to as the “KRE 403 balancing test” ensures that relevant
4 Kentucky Rules of Evidence.
8
evidence will not be admitted when its value is substantially outweighed by the
danger of unduly prejudicing the jury. We will apply these basic principles
below as they related to Burdette’s various claims of error.
i. The trial court did not abuse its discretion in admitting
five autopsy photos.
Burdette first challenges the trial court’s admission of five autopsy
photos introduced by the Commonwealth through the testimony of Dr. William
Ralston III, the chief medical examiner for the Commonwealth who performed
Det. Mengedoht’s autopsy. Prior to Dr. Ralston testifying, Burdette objected to
the admission of one photo of Det. Mengedoht’s removed trachea as being
irrelevant and gruesome, and the other four photos of her charred body as
being cumulative, since photos of the crime scene showing her burned body in
the car had already been admitted. At a bench conference, the trial court
analyzed each photo for its probative worth, hesitating slightly to admit the
photo of the removed trachea. But the Commonwealth insisted the trachea
photo was relevant to illustrate the cause of death and to show that the soot
went all the way inside Det. Mengedoht’s trachea. The trial court ultimately
overruled Burdette’s objection and admitted all five photos, stating: “These
[photos] will assist the medical examiner in explaining the cause of death. And
while they are gruesome, she burned to death . . . Can’t sanitize that from the
jury. . . . The Commonwealth has eliminated probably 75 pictures, I’m
guessing, to get down to those 5. I think that’s reasonable.”
Thereafter, Dr. Ralston testified as to the nature of Det. Mengedoht’s
injuries and the cause of her death. He identified the cause of death as smoke
9
inhalation, blunt force and thermal injuries sustained in a motor vehicle
collision with a subsequent fire. He further stated that the blunt force injuries
were not immediately fatal, and for a period after the collision, Det. Mengedoht
was breathing long enough to inhale a fatal amount of smoke. Dr. Ralston was
unable to say whether she was conscious or not during this time.
The Commonwealth then introduced and published the five autopsy
photos, displaying them on a digital projector next to Dr. Ralston, for a total of
four minutes while Dr. Ralston testified. Dr. Ralston discussed the extent of
Det. Mengedoht’s thermal injuries, while pointing to and referencing the
photos. He explained that he had removed the trachea (i.e., windpipe) to look
for evidence of smoke inhalation and to determine whether Det. Mengedoht was
breathing when the fire started. Dr. Ralston testified that, as shown in the
photo, her trachea had soot on the inside, indicative of smoke inhalation.
Defense counsel did not cross examine Dr. Ralston.
On appeal, Burdette argues that because he did not contest crashing
into Det. Mengedoht’s vehicle, killing her, the autopsy photos were
unnecessary to explain the cause of death, thereby lessening their probative
value. He further argues the autopsy photos were cumulative, as photos of the
crime scene and a crime scene video had already been supplied to the jury,
showing the fiery crash and Det. Mengedoht’s charred and burned body still
inside the car. Burdette maintains that the admission of the autopsy photos
was not only unnecessary, but unduly prejudicial.
10
The general rule is that “gruesome victim photos are per se admissible
subject only to clearly delineated exceptions, such as when the body had been
mutilated or has decomposed.” Hall v. Commonwealth, 468 S.W.3d 814, 822-
23 (Ky. 2015). “[A] photograph, otherwise admissible, does not become
inadmissible simply because it is gruesome and the crime is heinous.” Staples
v. Commonwealth, 454 S.W.3d 803, 825-26 (Ky. 2014) (affirming admission of
five gruesome autopsy photos, as “no more than were reasonably necessary to
provide illustration for the medical examiner's testimony and to support her
findings [and] relevant as tending to show not only that the child had been
fatally injured, but also that the fatal head injury was of a severity almost
certain to have been inflicted and not likely to have happened accidentally[]”).
Under the general rule, this Court has “many times upheld the
Commonwealth’s use of autopsy photographs introduced in conjunction with a
medical examiner’s testimony concerning the cause and manner of a homicide
victim’s injuries and death.” Id. at 825. However, autopsy photos are not
automatically admissible, even under the general rule:
Like all evidence, [autopsy photos] are subject to the balancing test
of KRE 403: “Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of undue
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, or needless presentation of
cumulative evidence.”
Hall, 468 S.W.3d at 823 (quoting KRE 403). Under KRE 403, the trial court
must “weigh the probative value of the gruesome photo in question against the
harmful effects that might flow from its admission to determine whether the
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photo should be excluded notwithstanding the general rule.” Id. See, e.g.,
Ragland v. Commonwealth, 476 S.W.3d 236, 249-50 (Ky. 2015) (admission of 8
crime-scene and autopsy photos in conjunction with medical examiner’s
testimony was within the trial court’s discretion: photos were probative of the
victim’s injuries, facts which are of relevant to the jury's consideration of
Ragland's claim of self-defense. “And although they depict the victim's battered
and decomposed corpse, they are not so inflammatory that their probative
value is so substantially outweighed by their prejudicial effect as to require
exclusion[]”).
The task of weighing the probative value and undue prejudice of
proffered evidence is inherently factual and, therefore, within the discretion of
the trial court. Ross v. Commonwealth, 455 S.W.3d 899, 910 (Ky. 2015). This
Court reviews a trial court’s decision regarding the admissibility of evidence for
an abuse of discretion. Id. “The test for abuse of discretion is whether the trial
judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound
legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
Here, the trial court considered each photo individually, and
comparatively, and assessed the purpose for which the photo was being
offered. The trial court noted the number of the Commonwealth’s autopsy
photos (approximately 75) and determined that admitting the 5 photos at hand
was reasonable. This case is distinguishable from Hall, wherein
Commonwealth presented a 10-minute police video documenting the crime
12
scene and a total of 43 crime scene and autopsy photographs, 28 of which were
admitted over objection. 468 S.W.3d at 820.
In Hall, we held that some of the gruesome photos were admissible to
allow the Commonwealth to meet its typically onerous burden of proving
the corpus delicti beyond a reasonable doubt. Indeed, “photos of a victim's
corpse are relevant to show the nature of the injuries inflicted on the victim.”
Id. at 825. But the “admission of the entire proffer of 28 photos went well
beyond that.” Id. at 826. The Hall court noted that photos depicting the same
scene or subject merely from different vantage points were needlessly
cumulative, and some photos were left displayed, and magnified, on the digital
projector while testimony was elicited about details that did not concern the
photos. Id. On top of the sheer number of photos admitted in Hall, the photos
“were not addressed one by one or even in comparison to each other; rather,
their admissibility was determined all at once as a group, with no emphasis on
their relative or incremental probative value. That is where the trouble lies[.]”
Id. at 827.
In Burdette’s case, the autopsy photos were no doubt gruesome, but
“general gruesomeness by itself, while prejudicial, is an insufficient ground to
keep out relevant evidence; rather, the gruesomeness must be such that it
creates substantial undue prejudice or other harmful consequences that
outweigh the probativeness of the evidence.” Id. Though Burdette naturally
wished to prevent the jury from seeing the autopsy photos, the Commonwealth
may “prove its case by competent evidence of its own choosing, and the
13
defendant may not stipulate away the parts of the case that he does not want
the jury to see.” Id. (quoting Pollini v. Commonwealth, 172 S.W.3d 418, 424
(Ky. 2005)).
Notwithstanding that Burdette admitted to causing Det. Mengedoht’s
death, the five autopsy photos, and Dr. Ralston’s testimony relating to same,
were relevant to the Commonwealth’s burden of proving the corpus
delicti beyond a reasonable doubt. The photos were used by Dr. Ralston to
illustrate the course and results of his autopsy examination and were
presented in a concise manner. See, e.g., Foley v. Commonwealth, 953 S.W.2d
924, 935 (Ky.1997) (no reversible error where “the photos were shown only
briefly, and were not emphasized in any way”). And with respect to Burdette’s
argument that the trachea photo was unduly prejudicial, we find that photo no
more gruesome than the photos of Det. Mengedoht’s burned body. See, e.g.,
Ross, 455 S.W.3d at 911 (holding that “the exposure of the intestines does not
substantially increase the offensiveness of the photographs, nor is it likely the
intestines will cause the jury to act on emotion. As between the barely
recognizable figure of [victim’s] charred body and the intestines protruding
therefrom, the sight of the intestines is the least objectionable and provides a
perverse respite from the more haunting portions of [victim’s] seared body[])”.
Furthermore, the five photos at issue were not duplicative of other
photos already entered into evidence, or needlessly cumulative. Just because
the jury had seen photos and a video of the crime scene does not make these
five autopsy photos less probative of the medical examiner’s explanation of Det.
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Mengedoht’s injuries and cause of death. Under the specific facts of this case,
we find the KRE 401 relevancy test and the KRE 403 balancing test satisfied
and thus affirm the trial court’s decision to admit these autopsy photos.
ii. Admitting evidence of Burdette’s texts about purchasing
pills illicitly was not an abuse of the trial court’s
discretion.
Burdette argues that the trial court abused its discretion by allowing
Sergeant Omar Lee to testify that Burdette had been texting someone (not a
doctor) about purchasing prescription pills/controlled substances for
approximately two years prior to the collision, the last text being on December
9, 2018, less than two weeks before the collision. Burdette preserved this
claim by filing a motion in limine in response to the Commonwealth’s Notice of
Intent to Introduce Evidence of Other Acts Pursuant to KRE 404(b). Burdette
also renewed his objection at trial. Accordingly, this Court will review the trial
court’s decision to admit this evidence for an abuse of discretion. Ross, 455
S.W.3d at 910.
KRE 404(b) states that “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in
conformity therewith.” Generally, a defendant’s prior bad acts are inadmissible
because “[u]ltimate fairness mandates that an accused be tried only for the
particular crime for which he is charged. An accused is entitled to be tried for
one offense at a time, and evidence must be confined to that offense. . . . The
rule is based on the fundamental demands of justice and fair play.” Clark v.
15
Commonwealth, 223 S.W.3d 90, 96 (Ky. 2007) (quoting O'Bryan v.
Commonwealth, 634 S.W.2d 153, 156 (Ky. 1982)).
KRE 404(b) was designed to preclude the admission of character or
propensity evidence, offered to show “that on other occasions a person has
acted in a particular way” and thus is “the sort of person who does that sort of
thing or acts that way” therefore he or she “is likely to have done the same sort
of thing or acted that same way on the occasion at issue in the case.” Trover v.
Estate of Burton, 423 S.W.3d 165, 172 (Ky. 2014).
While KRE 404(b) is a rule of exclusion, such evidence may be
admissible:
(1) If offered for some other purpose, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident; or
(2) If so inextricably intertwined with other evidence to the case that
separation of the two (2) could not be accomplished without
serious adverse effect on the offering party.
KRE 404(b).
To determine the admissibility of prior bad evidence, the following three-
step analysis is utilized:
1) If the other crimes evidence relevant for some purpose other than
to prove the criminal disposition of the accused?
2) Is the evidence sufficiently probative to warrant its introduction?
3) Does the potential for prejudice from the use of the other crimes
evidence outweigh its probative value?
Bell v. Commonwealth, 875 S.W.2d 882, 889-91 (Ky. 1994).
Sgt. Lee testified that after receiving Burdette’s lab report with the results
of the blood test, investigators checked the Kentucky All-Schedule Prescription
16
Electronic Reporting System (“KASPER”) database to see if he had a
prescription for either hydrocodone or clonazepam, which he did not. Sgt. Lee
stated that the next line of inquiry was to determine where Burdette had
obtained the pills, so they inspected his phone for any leads. Sgt. Lee stated
that “[t]here was communications via text messages from November 2016
leading up to December 9, 2018. There was multiple text messages where Mr.
Burdette had contacted someone who was not a doctor to purchase . . . drugs.”
He then added that the drugs were “prescription drugs or controlled
substances.”
Prior to Sgt. Lee testifying, the trial court conducted a hearing on
whether such testimony would be admissible, specifically balancing its
relevancy, probative value, and prejudicial effect. Burdette argued that the
texts did not bear on whether he was impaired at the time of the collision, or
even whether the pills he was texting about purchasing were the same drugs in
his system on the day of the incident. Because Sgt. Lee’s testimony was vague
as to what type of pills the texting parties were discussing, Burdette argued the
probative value diminished and the prejudicial effect increased. Burdette
asserted that this text message evidence is the heart of what KRE 404(b) is
designed to prohibit: evidence that because Burdette had done these bad acts
in the past, it makes it more likely that he was doing these bad acts now.
The Commonwealth argued that the testimony about the texts was
admissible for the limited purpose for which it was being offered: to show
Burdette’s knowledge on December 24, 2018 when he got behind the wheel of
17
his vehicle. The Commonwealth argued his knowledge directly related to its
burden of proving he acted wantonly, i.e., with extreme disregard to human
life.5 The Commonwealth asserted that the text messages established that
Burdette did not have a prescription for these pills; that he deliberately took
great measures to obtain them, not just once but numerous times over a two-
year period; and that he undertook these actions all the while knowing that he
was prohibited from doing so by the terms of his employment, and under the
law, but did it anyway.6
The trial court ultimately agreed with the Commonwealth, concluding
that the evidence was not being offered to show Burdette was a drug addict or
had bad character, or even that he was impaired on the day of the incident.
Rather, the texts were being offered to show the measures Burdette took to
obtain the pills, which the trial court found increased the level of wantonness;
Burdette knew how dangerous it was to ingest controlled substances while
driving and knew he was prohibited from doing so, but yet went to great
lengths again and again to disregard that risk and obtain and ingest them
anyway. Specifically, the trial court reasoned,
5 “A person is guilty of wanton endangerment in the first degree when, under
circumstances manifesting extreme indifference to the value of human life, he
wantonly engages in conduct which creates a substantial danger of death or serious
physical injury to another person.” KRS 508.060(1).
6 Testimony at trial established that Burdette was not permitted to operate a
commercial vehicle while taking controlled substances. To maintain his commercial
vehicle license, Burdette was not permitted to drive with any measurable amount of
drugs in his system. Further, Kentucky law generally prohibits texting and driving
under KRS 189.292(2).
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In the big picture, a person who doesn’t have a prescription for a
narcotic, who can’t have a prescription for a narcotic and do their
job, but wants a narcotic, has to find a different source. And all
that’s important in this case because all that shows knowledge. It
shows a disregard of what a medical doctor would have said had
that person gone there to get that prescription medication, and
there was a record of it. . . .
The level of disregard – and arguably the wantonness – increases
in proportion to your awareness of the risk. And so the more you
know about it, the more you have to disregard in order to do it.
And the argument follows that the, the greater the lengths that you
go to procure this, the more wanton it is. If someone gives it to
you, it’s different than you going out to get it. If it’s somebody
else’s prescription and you have easy access to it, it’s still wanton,
but it’s not the same as having to fly out of the country and come
back with a suitcase full of it, because every second that you’re
engaged in that activity is time you have not to do it anymore and
turn around and stop.
The trial court determined that any prejudice was minimal because the
jury had already heard evidence that Burdette had illegally obtained the pills
that were in his system on the day of the collision and that he should not have
been taking them while driving. The trial court’s only hesitation in admitting
the evidence was that no testimony would be presented about what type of pills
Burdette was purchasing, and thus the jury would be required to make an
inference.
On appeal, Burdette emphasizes that knowledge in the context of KRE
404(b) often means “capacity to commit the act.” Southworth v.
Commonwealth, 435 S.W.3d 32, 49 (Ky. 2014). He claims that the text
messages merely show his capacity to obtain pills without a prescription, which
he argues is not relevant to whether he had the capacity to drive under the
influence. Burdette maintains that because he was not charged with a crime
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relating to purchasing, trafficking, or being in possession of pills, the evidence
that he did so in the past had no bearing on whether he drove under the
influence on the day of the collision. Furthermore, he points out that no
evidence showed that the pills he purchased in the two-year span were the
same as those in his system on the day of the collision. Instead, he contends
that the test messages are propensity evidence unrelated to the charged
offenses and were highly prejudicial.
A person acts wantonly “when he is aware of and consciously disregards
a substantial and unjustifiable risk that the result will occur or that the
circumstance exists.” KRS 501.020(3). Further, a person who creates such a
substantial and unjustifiable risk but “is unaware thereof solely by reason of
voluntary intoxication also acts wantonly with respect thereto.” Id. Whether
Burdette’s wanton conduct manifests “extreme indifference to human life” is a
question to be decided by the trier of fact. Brown v. Commonwealth, 975
S.W.2d 922, 924 (Ky. 1998).
In Ramsey v. Commonwealth, the Court held that the defendant driving
while intoxicated and with a child in the car can support a conviction for first-
degree wanton endangerment. 157 S.W.3d 194, 197 (Ky. 2005). In reaching
that conclusion, the Court noted that the defendant “was not simply driving
under the influence as he tried to argue,” since “his physical acts of driving
included more than one reported lapse: it was his third time of operating a motor
vehicle despite a license suspension for DUI; he was driving while intoxicated;
he suddenly accelerated the vehicle at a speed noticeably higher than the
20
normal; and he turned off the vehicle's headlights while still on the road.” Id.
at 198 (emphasis added). Thus, the Ramsey court considered the defendant’s
prior driving offenses in determining whether his conduct was wanton.
On the other hand, in Shouse v. Commonwealth, a murder trial
concerning a child’s death while left unattended in the car by his mother, this
Court held that it was error to introduce, pursuant to KRE 404(b), the fact that
Shouse had left her child in her car unattended in the past. 481 S.W.3d 480,
490 (Ky. 2015). Specifically,
Proof that Shouse had previously intentionally left her son in the
car for short periods does not show that she wantonly did so on
the night in question. Indeed, the proof indicates that she was not
even aware that she had left the child in the car. To be proper KRE
404(b) evidence, her prior acts must show more than mere
propensity to do an act, and must prove something else, such as
motive, knowledge, absence of mistake, or identity.
The Commonwealth does not expressly argue any of these
grounds, saying only that the acts “illuminate what was in her
mind when she left her child in the car and killed him.” But the
prior acts cannot show Shouse's wanton mental state, specifically
that she knew of the risk involved and consciously ignored that
risk, because they differed too much from what happened here. If
anything, that she had safely left her child in the car in the past—
without injury, much less death—would tend to show that she
was unaware of the risk of leaving the child in a car.
Id. at 490–91. The Court concluded such evidence was propensity evidence -
used only to show that Shouse had a propensity for leaving her son in the car –
which is forbidden by KRE 404. Nonetheless, the Court found the evidence to
be harmless since no substantial likelihood existed that it affected the verdict.
Id. at 491.
21
In Feinauer v. Commonwealth, the Court of Appeals reversed the
defendant’s reckless homicide convictions on grounds that the trial court
improperly allowed the Commonwealth to introduce text messages evidencing
prior bad acts by Feinauer that were insufficiently tethered to the reckless
homicide charges. 640 S.W.3d 47 (Ky. App. 2021), review denied (Mar. 16,
2022). In Feinauer, the defendant was on route to attend an event at her
child’s school when her vehicle left her lane of traffic and collided head-on with
a vehicle traveling in the opposite direction, tragically killing both occupants.
Id. at 48. Feinauer’s subsequent blood draw revealed a blood alcohol level of
0.048%; no alcohol was detected in the subsequent draws, nor were any drugs
detected in any draws. Id. at 49.
At trial, the court admitted “about fifteen texts, dating from November
2015 to March 2016, [Feinauer] had sent regarding speeding, drinking and
driving, and/or texting and driving.” Id. The Commonwealth argued the texts
showed Feinauer's “consciousness of guilt since they, generally speaking, show
she knew it was wrong to drink and drive, text and drive, or speed.” Id.
However, the Court of Appeals observed that “’everyone is presumed to know
the law; therefore, ignorance of the law is not an excuse.’ So, the
Commonwealth did not need the texts to show that Feinauer knew speeding,
texting and driving, and having open alcoholic beverages in a vehicle are illegal
because she, like everyone else, was already conclusively presumed to know
the law.” Id. at 51 (quoting Department of Revenue, Finance and Administration
22
Cabinet v. Revelation Energy, LLC, 544 S.W.3d 170, 176 (Ky. App. 2018))
(internal citations omitted).
Importantly, the Commonwealth did not charge Feinauer with speeding,
driving while impaired, texting while driving, or even for having an open
container of alcohol in her vehicle at the time of the crash. 640 S.W.3d at 50.
Nor did it introduce evidence of such at trial. Id. at 51. Accordingly, the Court
of Appeals discerned “no element(s) of reckless homicide for which the texts
had material, probative value” since the “evidence that she had drunk while
driving, texted while driving, or sped in the past . . . has no meaningful
relationship to whether she did so at the time of the fatal collision.” Id.
Rather, “the prior instances of misconduct exemplified by the texts seem
designed to show that Feinauer had a propensity for making poor decisions
while driving.” Id. Given the emotionally charged nature of the case, with the
Commonwealth using the texts “to argue repeatedly that Feinauer played a
deadly game of ‘Russian roulette’ whenever she drove a vehicle[,]” the court
concluded that admission of the texts was not harmless error. Id. at 52.
In Burdette’s case, the trial court reasoned that his conduct became
more and more wanton the longer he did it, and the greater the lengths he went
to obtain pills illicitly. Whether the prejudicial effect of this evidence
substantially outweighed its relevancy and probative value is, as it often is, a
close call. After thoroughly reviewing relevant case law and the record, we
make particular note of the fact that the most recent text was within two weeks
of the date of the collision, and we are accordingly unable to say that the trial
23
court’s decision was “arbitrary, unreasonable, unfair, or unsupported by sound
legal principles” so as to qualify as an abuse of discretion. English, 993 S.W.2d
at 945. Moreover, considering the entirety of the evidence presented to the jury
about Burdette’s guilt, including his blood test results showing he had
hydrocodone and clonazepam in his system and evidence that he was watching
pornography at the time he slammed into the back of Det. Mengedoht’s vehicle,
which had its flashing lights activated, hardly braking, shows his conduct was
wanton beyond a reasonable doubt. As a result, even if the trial court did err
in admitting evidence of the texts, any error was harmless and did not
substantially affect the outcome of the trial. See Meece v. Commonwealth, 348
S.W.3d 627, 645 (Ky. 2011) (“[p]reserved evidentiary and other non-
constitutional errors will be deemed harmless . . . if we can say with fair
assurance that the judgment was not substantially swayed by the error[]”).
iii. The trial court did not abuse its discretion in admitting
evidence of the content of the video (pornography) that
Burdette was watching at the time of the collision.
Burdette argues that the trial court ran afoul of KRE 404(b) by allowing
the Commonwealth to refer to several instances in which Burdette accessed a
pornographic video on the website “xvideos.com” on the day of the collision,
including during the collision. Burdette claims that the description of the
video’s pornographic content was irrelevant to the issue of whether he was
looking at his phone at the time of the collision; likewise, he asserts that his
browser history from earlier that day was also irrelevant. Under KRE 403’s
balancing test, Burdette argues this evidence was more prejudicial than
24
probative. This claim is preserved, as Burdette filed a motion in limine to
exclude this evidence, in response to the Commonwealth’s KRE 404(b) Notice.
The trial court conducted a hearing on its admissibility and ultimately allowed
testimony regarding the pornography video, but not the title of the video.
Burdette renewed his objection at trial, which the court overruled on grounds
that the video was a visual medium, the contents of which go to the attention
one might pay to the video, how engaged one might be, and one’s anticipated
reaction to watching such a video. We review the trial court’s ruling for an
abuse of discretion. Ross, 455 S.W.3d at 910.
At trial, Det. Gabhart described the forensic examination that he
conducted of Burdette’s phone and explained that Burdette had accessed a
pornographic website – “xvideos.com” – during the collision. He further
testified that Burdette had visited it five other times earlier that day, before the
collision: at 8:53 a.m., 10:02 a.m., 12:33 p.m., 1:08 p.m., and 1:36 p.m. Det.
Gabhart described the pornographic video as depicting a male and female in a
variety of sexual positions, engaging in oral sex and vaginal sex. The
Commonwealth also offered testimony regarding the pornographic video
through Sgt. Lee, who testified that Burdette accessed the website
“xvideos.com” at 2:12 p.m. on the day of the collision. Sgt. Lee stated that the
video was eight minutes long and depicted one male and one female engaged in
various sexual acts.
The Commonwealth asserts that the content of the video was admissible
under KRE 404(b)(2) as it was inextricably linked to the crime and admissible
25
under KRE 404(b)(1) to show that because Burdette visited that website several
other times that day, Burdette did not access the video mistakenly.
Specifically, the Commonwealth argues that Burdette streaming pornography
during the collision formed part of the central question of the case: whether a
person who watches pornography while driving a vehicle – much less someone
who does so while operating a semi-truck on the interstate – unquestionably
engages in wanton behavior. And that the other times Burdette watched
pornography that day was probative of the absence of mistake or accident, and
to eliminate any inference that Burdette’s phone could have automatically
played the video during the collision.
We agree with the trial court that this evidence was admissible. As the
trial court reasoned, pornography by its nature is a visual medium requiring
one’s attention and produces a reaction. Driving while playing a pornographic
video on your phone demands a different type of engagement than driving
while, say, having a history channel video playing in the background, in which
the audio content is the focus, and the driver need not look at the phone to
absorb its content. Thus, Burdette having a pornographic website streaming
during the collision is extremely relevant to the Commonwealth’s charge of
wanton conduct. Further, without evidence that Burdette had visited the same
pornographic video five times earlier that day, the jury could have inferred that
the website was simply open in his browser, perhaps by accident or from
accessing it another day, or just not closing the browser. Thus, that evidence
was admissible not only to show absence of mistake but was as inextricably
26
linked to the crime - necessary and probative to provide the jury with a full
picture of Burdette’s actions leading up to, and during, the fatal collision. Cf.
Metcalf v. Commonwealth, 158 S.W.3d 740 (Ky. 2005) (detectives could have
testified in defendant’s trial on charges of sodomy and sexual abuse of a
different victim, without mentioning that defendant had videotaped his
stepdaughter undressing).
While pornographic evidence is undoubtedly prejudicial, see Chavies v.
Commonwealth, 374 S.W.3d 313, 323 (Ky. 2012) (noting the “dangerous quality
and prejudicial consequences” from this type of evidence), here the prejudice
was limited and was greatly outweighed by its probative value. No one
identified the title of the video or testified that Burdette had a history of
watching pornographic videos while driving or was a porn addict; instead, the
evidence merely showed that Burdette viewed the same pornographic video
several times on the day of the collision, including immediately before. The
evidence was thus properly admitted.
b. The trial court did not err by allowing the jury to view the
vehicles involved in the collision.
Burdette argues that the trial court erred by allowing the jurors to leave
the courtroom to go outside and view the three vehicles involved in the collision
on a street behind the courthouse. This claim is preserved as Burdette
objected to the Commonwealth’s Notice Regarding Physical Evidence That
Cannot be Presented in the Courtroom and renewed his objection during trial.
27
Accordingly, we review the trial court’s decision to allow the jurors to view the
vehicles for an abuse of discretion. Ross, 455 S.W.3d at 910.
The Commonwealth sought to introduce the vehicles pursuant to KRS
29A.310(3), which provides: “When necessary the judge may authorize the jury
to view the real property which is the subject of the litigation, or the place in
which any material fact occurred, or the place in which the offense is charged
to have been committed.” The Commonwealth argued that by viewing the
vehicles in person the jury would be better able to appreciate the difference in
their size and factor that into assessing the level of wanton conduct on the part
of Burdette. In other words, the Commonwealth stated that there was a
difference in the level of wanton conduct between consuming pills like Burdette
did and driving a tanker truck versus driving a car the size of a sedan. The
trial court found that everyone would be better off by allowing the jury to see
the vehicles in person and ordered the street behind the courthouse to be
blocked off by police so there would be no chance of the public, or anyone with
an emotional connection to this case, viewing the vehicles and contaminating
the jury.
Burdette now argues that KRS 29A.310 does not apply to this case, since
vehicles are not real property, see Property, Black’s Law Dictionary (11th ed.
2019) (defining real property as “land and anything growing on, attached to, or
erected on it, excluding anything that may be severed without injury to the
land”). He claims not only was the trip to view the vehicles not authorized
under KRS 29A.310, it also did not pass muster under KRE 403. He points out
28
that the Commonwealth introduced ample evidence of the size and physical
qualities of the vehicles, including testimony that a tanker truck weights up to
30,000 pounds, as well as scene videos and photographs. Taking this into
consideration, Burdette maintains that the viewing of the vehicles in person
had little probative value and only served to inflame the passions of the jury.
The Commonwealth concedes on appeal that the vehicles are not “real
property” within the meaning of KRS 29A.310(3). Nonetheless, it asserts the
vehicles were substantive evidence necessary to tell the full story of the charges
against Burdette. See Barnett v. Commonwealth, 979 S.W.2d 98, 103 (Ky.
1998) (generally, “the prosecution is permitted to prove its case by competent
evidence of its own choosing[]”).
Burdette cites to two cases in support of his position, neither of which is
directly on point since they concern a jury viewing the place where the crime
occurred pursuant to KRS 29A.310. In Debruler v. Commonwealth, this Court
held that the trial court did not abuse its discretion by refusing to allow the
jury to view a scene of a robbery and kidnapping. 231 S.W.3d 752, 761 (Ky.
2007). Because the Commonwealth had introduced multiple photographs and
maps of the scene, the Court found that “the jury was adequately apprised of
the physical nature of the two scenes[.]” Id.In Tungate v. Commonwealth, this Court similarly affirmed the trial
court’s decision not to allow the jury to view a daycare where a sexual assault
had allegedly occurred. 901 S.W.2d 41, 44 (Ky. 1995). The trial court
reasoned that it had been over two or three years since the crimes allegedly
29
occurred there and that the jury had been provided with photographs and a
video of the scene. Id. This Court affirmed, finding that the jury was familiar
with the scene from the testimony and visual aids. Id.However, these cases are distinguishable from Burdette’s, and not just
because they involve KRS 29A.310(3). While perhaps not necessary for the
jury to view the three vehicles in person, that viewing was helpful and
probative to the jury’s assessment of Burdette’s conduct on the day of the
incident and the extent to which he acted wantonly. Considering the
parameters set in place by the trial court to minimize any potential taint on the
jury, we find any prejudice was minimized. Accordingly, we decline to disturb
the trial court’s decision on this issue.
c. The trial court did not err by denying Burdette’s motions to
suppress.
The Commonwealth obtained Burdette’s medical records from LMDC
through a grand jury subpoena, which Burdette moved to suppress those
records and any statements made therein. The trial court denied his motion
and allowed two witnesses to testify about Burdette’s statements contained in
the medical records, in which he admitted taking hydrocodone “sometimes”
and consuming it the day of the collision. We review a trial court’s ruling on a
suppression motion utilizing a clear error standard for factual findings and a
de novo standard for conclusions of law. Sykes v. Commonwealth, 453 S.W.3d
722, 724 (Ky. 2015).
At trial, the Commonwealth called two witnesses, Nurse McCarthy and
LMDC records custodian Darlene Jerman, to testify about statements made by
30
Burdette which were contained in the LMDC medical records. Nurse McCarthy
testified that he drew Burdette’s blood pursuant to the search warrant and
conducted a routine medical intake assessment of Burdette, which he performs
on every detainee booked into the LMDC jail facility. During Burdette’s
assessment, Nurse McCarthy asked him if he had ingested any drugs or
medications and Burdette responded that he had consumed hydrocodone that
day (December 24, 2018) and “he takes it sometimes.” Nurse McCarthy
testified that every inmate is asked about ingesting drugs or medications
because LMDC needs to know about any potential overdoses or withdrawals.
Darlene Jerman testified that she was one of the custodians of the
medical records for LDMC. She testified as to the contents of Burdette’s
medical records from December 24, 2018; specifically, Burdette responding
“yes” when asked “Do you use drugs not prescribed by a physician?” Burdette
also stated he used hydrocodone “sometimes” and that December 24, 2018 was
his “last use.”
On appeal, Burdette claims the trial court abused its discretion by
denying his motion to suppress Nurse McCarthy’s and Jerman’s testimony
about his statements contained in his medical records. He alleges their
testimony violated his rights under the Fourth Amendment of the United States
Constitution and Section 10 of the Kentucky Constitution, as well as the Fifth
Amendment of the United Constitution and Section 11 of the Kentucky
Constitution. Specifically, Burdette claims that the Fourth Amendment and
Section 10 were violated by the release of his LMDC medical records without a
31
warrant (thereby violating his alleged expectation of privacy in those records),
and by what he classifies as an interrogation by Nurse McCarthy without him
being Mirandized first. Burdette further alleges his privilege against self-
incrimination under the Fifth Amendment and Section 11 were violated by the
intake assessment process, in which he was compelled to answer Nurse
McCarthy’s questions because he would have been denied adequate medical
care otherwise.
Both the Fourth Amendment and Section 10 protect citizens from
unreasonable searches and seizures. Burdette asserts that he had a legitimate
privacy interest in his medical records protected by the Fourth Amendment
and that “[t]he grand jury is [] without power to invade a legitimate privacy
interest protected by the Fourth Amendment.” United States v. Calandra, 414
U.S. 338, 346 (1974). Accordingly, he argues that his statements contained in
the LMDC medical records – the intake assessment - should have been
suppressed.
The Commonwealth argues that the intake assessment was part of the
routine booking process at LMDC that was administrative in nature and
performed on every detainee. It argues that Burdette’s expectation of privacy in
these records is not reasonable and thus no warrant was required to obtain
them. Additionally, it asserts that the LMDC intake assessment falls within the
32
booking exception to Miranda v. Arizona, 384 U.S. 436 (1966) and thus the
state was not required to Mirandize Burdette beforehand.7
With respect to Burdette’s alleged expectation of privacy in his LMDC
medical records, the trial court found that Burdette was not actively seeking
medical treatment; rather, the booking process was attendant to his arrest and
required obtaining medical information from him for administrative purposes.
Absent any Kentucky case law holding that Miranda applies to a nurse’s
questions during booking, the trial court concluded that Nurse McCarthy and
Jerman could testify as to Burdette’s statements contained in the records, but
that the Commonwealth could not admit the records themselves into evidence.
Application of the Fourth Amendment and Section 10 “depends on
whether the person invoking its protection can claim a ‘justifiable,’ a
‘reasonable,’ or ‘legitimate expectation of privacy’ that has been invaded by
government action.” Smith v. Maryland, 442 U.S. 735, 740 (1979). Burdette
argues that the U.S. Supreme Court has recognized a reasonable expectation of
privacy in a person’s medical records; specifically, “[t]he reasonable expectation
of privacy enjoyed by the typical patient undergoing diagnostic tests in a
hospital is that the results of those tests will not be shared with nonmedical
personnel without her consent.” Ferguson v. City of Charleston, 532 U.S. 67,
78 (2001). Burdette contends that while his statements were procured
7 Neither party addresses when Burdette was read his Miranda rights, and
when/if he invoked his right to counsel. We are left to assume he was Mirandized
upon his arrest, and he is now claiming he should have been Mirandized again before
the intake assessment.
33
attendant to his incarceration, that should not minimize his expectation of
privacy; for if an inmate has no legitimate privacy interest in those records,
then inmates will be incentivized to hide medical conditions that they believe
might be incriminating or be forced to choose between obtaining medical
treatment they need or being convicted of a crime with their own medical
information.
While inmates are afforded constitutional rights, “[l]awful incarceration
brings about the necessary withdrawal or limitation of many privileges and
rights, a retraction justified by the considerations underlying our penal
system.” Sandin v. Connor, 515 U.S. 472, 485 (1995) (quoting Jones v. N.C.
Prisoners’ Labor Union, Inc., 433 U.S. 119, 125 (1977)). By extension, “[l]oss of
freedom of choice and privacy are inherent incidents of confinement in such a
facility.” Bell v. Wolfish, 441 U.S. 520, 537 (1979). Along these lines, the U.S.
Supreme Court has held that “society is not prepared to recognize as legitimate
any subjective expectation of privacy that a prisoner might have in his prison
cell[.]” Hudson v. Palmer, 468 U.S. 517, 526 (1984). The Hudson court
explained,
A right of privacy in traditional Fourth Amendment terms is
fundamentally incompatible with the close and continual
surveillance of inmates and their cells required to ensure
institutional security and internal order. We are satisfied that
society would insist that the prisoner's expectation of privacy
always yield to what must be considered the paramount interest in
institutional security.
Id. at 527–28 (footnote omitted).
34
Burdette correctly notes that some federal circuits have recognized the
constitutional right to privacy in one’s medical information exists in prison.
See, e.g., Doe v. Delie, 257 F.3d 309, 317 (3d Cir. 2001); Powell v. Schriver, 175
F.3d 107, 112 n.3 (2d Cir. 1999); Anderson v. Romero, 72 F.3d 518, 522 (7th
Cir. 1995). Even so, “a prisoner does not enjoy a right of privacy in his medical
information to the same extent as a free citizen. . . . [A prisoner’s]
constitutional right is subject to substantial restrictions and limitations in
order for correctional officials to achieve legitimate correctional goals and
maintain institutional security.” Delie, 257 F.3d at 317. Indeed, “[i]nmates
retain those rights that are not inconsistent with their status as prisoners or
with the legitimate penological objectives of the corrections system.” Id. at 315
(citing Pell v. Procunier, 417 U.S. 817, 822 (1974)).
As the trial court reasoned, Burdette was not a “typical patient” and his
expectation of privacy in the LMDC records is different from the privacy interest
he would enjoy if voluntarily seeking medical treatment at a hospital or doctor’s
office. Here, the medical intake assessment of Burdette stemmed from his
arrest and directly pertained to penological interests in ensuring the safety of
inmates and the security of the jail facility. “The limits on an inmate’s
expectations of privacy are particularly strong where the information he seeks
to protect relates to the institutional safety of the prison.” Payne v. Taslimi,
998 F.3d 648, 659 (4th Cir. 2021). We agree with the trial court that
Burdette’s alleged privacy interest in these records was not reasonable, given
35
the circumstances. Thus, no warrant was required for the state to obtain those
records.
As to whether Burdette should have been read his Miranda rights before
the intake assessment, this depends on whether Nurse McCarthy was a state
actor whose questioning amounted to a custodial interrogation. Under
Miranda v. Arizona, “a person in custody must be informed of their rights
before they are interrogated.” Jones v. Commonwealth, 641 S.W.3d 162, 169
(Ky. 2022) (citing Miranda, 384 U.S. at 498-99). “Law enforcement enjoys a
limited exception to Miranda in the context of booking and arrest. Questions
that fall under the booking exception to Miranda are those ‘reasonably related
to the police’s administrative concerns.” Id. (quoting Pennsylvania v. Muniz,
496 U.S. 582, 601–02 (1990)). Administrative concerns include “information
whose usefulness is related to record-keeping, incarceration, and pre-trial
services.” Id. (citing Dixon v. Commonwealth, 149 S.W.3d 426, 432 (Ky. 2004)).
To be administrative in nature “its immediate purpose [must be] ‘divorced from
the State’s general interest in law enforcement.’” Williams v. Commonwealth,
213 S.W.3d 671, 682 (Ky. 2006) (quoting Ferguson, 532 U.S. at 79). As we
noted in Jones, the U.S. Supreme Court “‘has been reluctant to circumscribe
the authority of the police to conduct reasonable booking searches,’ giving
officers some latitude when arresting and booking individuals accused of a
crime.” 641 S.W.3d at 169-70 (quoting Maryland v. King, 569 U.S. 435, 456
(2013)).
36
The first step in determining if the booking exception applies is whether
Nurse McCarthy qualifies as a state actor, as Miranda warnings are only
required if the state is interrogating someone in custody to gather incriminating
information. As the party seeking suppression of evidence, the burden of proof
was on Burdette to present sufficient proof to establish that Nurse McCarthy
was a state actor, and the intake assessment was a custodial interrogation.
See United States v. Rodriguez-Suazo, 346 F.3d 637, 643 (6th Cir. 2003)
(holding that “[i]t is well settled that in seeking suppression of evidence the
burden of proof is upon the defendant to display a violation of some
constitutional or statutory right justifying suppression[]”).
Burdette alleges that Nurse McCarthy was a state actor because he
assisted the police in executing a search warrant to obtain a blood sample, was
aware of the charges filed against Burdette, and knew the potentially
incriminating effect of the questions he was asking during the intake
assessment. Because of this, Burdette argues that Nurse McCarthy’s role
exceeded standard medical care because he assisted the police in gathering
information to prove the intent of wanton murder.
The Commonwealth stresses that Nurse McCarthy was not a state actor,
noting that he was employed by WellPath, a company that contracts with
LMDC to provide medical care. The Commonwealth further contends that no
evidence was presented that officers had instructed Nurse McCarthy to gather
incriminating information, or that Nurse McCarthy was working on behalf of, or
under the influence of, law enforcement. Even if deemed a state actor, the
37
Commonwealth argues that the booking exception applies as the information
Nurse McCarthy collected from Burdette during the assessment was for
administrative purposes only.
As an initial matter, Nurse McCarthy’s employment by WellPath, rather
than LMDC, does not automatically exempt him from being a state actor.
Compare Welch v. Commonwealth, 149 S.W.3d 407, 409-11 (Ky. 2004)
(counselors assisting with the sex offender treatment program “were state
actors”) with Fields v. Commonwealth, 12 S.W.3d 275, 284 (Ky. 2000) (“[t]he
mere fact that the police transported Appellant to King’s Daughter’s Hospital
for treatment of his wounds did not, ipso facto, transform Dobson from a
hospital employee into a state actor[]”). Rather, we must discern the nature
and purpose of the questions asked by Nurse McCarthy.
Undoubtedly, Nurse McCarthy is not a law enforcement officer.
Questioning by a party who is not a law enforcement officer may
constitute a “custodial interrogation” (which entails state action) in
two primary circumstances. The first is when the private entity is
operating in accordance with a court order or governmental
regulation and is thereby properly viewed as a “state actor.”
Adkins v. Commonwealth, 96 S.W.3d 779, 791 (Ky. 2003). In Estelle v. Smith,
the U.S. Supreme Court held that an interrogation conducted by a court-
appointed competency psychiatrist at the county jail was “a phase of the
adversary system,” thereby triggering the defendant’s Miranda rights. 451 U.S.
454, 467 (1981). See also Skinner v. Railway Labor Executives' Ass'n, 489 U.S.
602, 614–16 (1989) (holding that heavy government regulation transformed the
private railway's drug testing into a “search” for purposes of the Fourth
38
Amendment). The second circumstance in which state action occurs is “when
the government otherwise ‘exercised such coercive power or such significant
encouragement that it is responsible for [the private party’s] conduct.’” Adkins,
96 S.W.3d at 791 (quoting United States v. Garlock, 19 F.3d 441, 443 (8th Cir.
1994)).
We find Nurse McCarthy was a state actor since the intake assessment
was conducted at the LMDC facility, and directly pertained to its penological
interests. That said, we find the booking exception to Miranda applies. In the
absence of Kentucky precedent on whether a jail nurse’s questions during
booking qualify for the booking exception, we find two cases cited by the
Commonwealth to be persuasive and helpful to our analysis. The first is an
Alabama case, in which that state’s court of appeals held that a suspect’s
recent use of controlled substances, as admitted through the testimony of a jail
nurse who drew the defendant’s blood and obtained a urine sample during the
routine intake assessment of inmates, fell within the booking exception to
Miranda and was admissible. Henderson v. State, 248 So.3d 992, 1032-34
(Ala. Crim. App. 2017) (“questions asked as part of the routine booking
procedure do not fall within the protections of Miranda”) (citing Pennsylvania v.
Muniz, 496 U.S. 582 (1990)). In Henderson, the jail nurse (McGinnis) testified,
in relevant part,
she was employed at the Russell County jail and that her contact
with Henderson came as a result of her job to evaluate him as a
new inmate; that the evaluation took place in the infirmary at the
Russell County jail; that she asked Henderson questions during
the evaluation and that none of the law-enforcement officers who
39
were also in the room directed her to ask any of those questions,
including when he last consumed drugs or alcohol; and that her
questions to Henderson related to his medical history and had
nothing to do with the case. McGinnis testified that Henderson told
her that he only used marijuana and alcohol and that he had
ingested neither in the two days before the incident.
Id. at 1032.
Burdette asks us not to consider Henderson since in that case, the jail
nurse did not assist police, and the prosecutor introduced the nurse’s
statements in that case on rebuttal, rather than during its case-in-chief, as the
Commonwealth did here. However, we find that distinction irrelevant for our
purposes, and the facts and legal analysis of the Henderson court nevertheless
helpful. That court found:
Much like conducting a routine booking procedure, McGinnis was
performing the intake evaluation she conducted on every newly
admitted inmate, and the questions she asked Henderson were no
different than those she asked every new inmate. McGinnis
testified that law-enforcement officers did not direct her to ask any
questions. She said that no one threatened, coerced, or offered any
hope of reward to Henderson to make him answer her questions.
Id. at 1033.
The second case the Commonwealth cites is an Oregon case, State v.
Montiel-Delvalle, in which that state’s court of appeals confronted a similar
situation, where an officer asked an arrestee who was suspected to have been
involved in a collision about his injuries. 304 Or. App. 699, 714, 468 P.3d 995,
1005 (2020). That court affirmed the trial court’s denial of the defendant’s
motion to suppress the statements he made to the officer on the night of his
arrest, since the officer’s questions were not designed to elicit incriminating
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information and therefore the booking exception to Miranda applied. Id. at
1005-06. The Montiel-Delvalle court reasoned,
If anything, having reason to believe that a person is injured or is
suffering a medical condition makes it more important from an
administrative perspective to determine the nature and severity of
the injury or condition before placing the person in jail. . . . [The
officer’s] recognition that defendant might have injuries related to
the car crash did not preclude him from asking questions normally
attendant to arrest and booking that served reasonable
administrative purposes.
Id. at 1006.
Burdette attempts to distinguish State v. Montiel-Delvalle on the basis
that he did not have any visible injures requiring medical attention, but that
distinction does not bear on our take-away from State v. Montiel-Delvalle: in
determining whether the booking exception applies, the focus should be the
purpose of the questions and whether that purpose was administrative in
nature or simply designed to elicit an incriminating response.
Here, Nurse McCarthy’s routine intake assessment questions served an
administrative purpose, that is, to provide the state with the information
necessary to attend to an inmate’s medical needs while in police custody. He
exercised no discretion in the questions asked of Burdette during the booking
process, as they were set forth on the intake assessment form, nor did the
evidence show that officers directed him to ask certain other questions not on
the intake form. Contrary to Burdette’s assertion, Nurse McCarthy’s
performance of the blood draw, and his knowledge of the charges against
Burdette, did not affect or change his administration of the intake assessment
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in any way. See, e.g., Jones, 641 S.W.3d at 171 (“[w]hether an officer should
know that a line of questioning is incriminating and not reasonably related to
booking will change depending upon the alleged crime and the extent of an
officer’s knowledge regarding said crime[]”). Accordingly, the booking exception
to Miranda applies, and Nurse McCarthy’s testimony was admissible on that
basis.
As to Burdette’s alleged violation of the Fifth Amendment and Section 10,
their application likewise requires state action. See Adkins, 96 S.W.3d at 790
(“It is well-established that only state action implicates a defendant’s rights
under the Fifth and Sixth Amendments of the United States Constitution and
Section Eleven of the Constitution of Kentucky[]”) (internal quotations omitted).
We have determined that Nurse McCarthy was a state actor, thus, Miranda
prohibits the Commonwealth from using “statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the defendant unless it
demonstrates the use of procedural safeguards effective to secure the privilege
against self-incrimination.” Miranda, 384 U.S. at 444. That is, “a person in
custody must receive certain warnings before any official interrogation,
including that he has a ‘right to remain silent’ and that ‘anything said can and
will be used against the individual in court.’” Estelle, 451 U.S. at 467 (quoting
Miranda, 384 U.S. at 467–69). Here, as we have concluded, the booking
exception to Miranda applies here and thus Burdette was not required to be
Mirandized prior to the intake assessment. Thus, the trial court properly
denied Burdette’s motion to suppress.
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d. The trial court’s error during Burdette’s closing argument was
harmless.
Burdette claims the trial court deprived him of his right to present a
defense by forbidding him from using proof of a statement of his, already
admitted into evidence, to argue during closing argument that his intent was at
most reckless, not wanton. He claims the trial court’s ruling violated his
constitutional rights as set forth in the Sixth and Fourteenth Amendments to
the U.S. Constitution and Section 11 of the Kentucky Constitution. This Court
reviews a trial court’s decisions on the parameters of closing argument,
including evidentiary rulings, for an abuse of discretion. Ross, 455 S.W.3d at
910; Sizemore v. Commonwealth, 42 S.W.2d 328, 329 (Ky. 1931).
During closing argument, defense counsel argued that the
Commonwealth failed to prove Burdette acted wantonly and, if anything, the
jury may find he acted recklessly. About ten minutes prior to defense counsel
making the statement at issue - “Here’s why. You heard from Mr. Sobak that
clearly he missed something, but you also heard from Roger” - defense counsel
made a similar comment - “you will get no dispute from Roger that this was a
tragedy” - after which the trial court sua sponte called defense counsel to the
bench and warned her not to mention her client again like that because
Burdette did not testify. The court said, “Please don’t do that. You can’t
invoke what Roger thinks, what Roger says.” Still, about ten minutes later,
defense counsel, in arguing Burdette’s conduct was at most reckless, said,
“You also heard from Roger” then immediately played the body camera
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recording in which Burdette is heard saying, “Last thing I know, I’m not even
sure I hit the car first, but I think I did.”
At this point, the trial court again sua sponte called the parties up to the
bench and reiterated that defense counsel cannot use Burdette’s statement on
the body camera recording as proof of what happened that day. The trial court
stated:
You can’t use that to prove that what he said is true, it’s absolutely
hearsay and it cannot be used as proof of what he says happened;
it can only be used against him. It’s really improper and now we
gotta undo that. The fact that he said it can only be used against
him as a matter of law, so I don’t know what to do. . . . it’s fixable
but it has to be fixed because there is no testimony Roger Burdette
about what happened that day. . . . you can’t use that as
substitute for his testimony. That’s a bright line rule.
The trial court asked the Commonwealth what it wanted it to do, and the
Commonwealth suggested it admonish the jury. Thereafter, the trial court gave
the jury the following admonition:
Folks, this is kind of a big deal. The defendant did not testify. And
he has a right not to testify but if he doesn’t testify, his testimony
is not in evidence. Testimony is where you get on the stand and
swear to tell the truth, the whole truth, and nothing but the truth.
That’s [trial court points at paused video on projector] hearsay and
the rule says, very clearly, that what a defendant says off the stand
cannot be used by you all to consider that as the truth of the
matter asserted. You have no information about, from Roger
Burdette that you may consider to prove what he did that day. The
rule is very clear that the only purpose, legitimate purpose for
using a defendant’s statement off the stand who does not testify is
against him. The Commonwealth may use that against him. But
they may not use that to substitute for testimony. You have not
heard from Roger Burdette what happened that day. And you may
not consider that statement from Roger Burdette to prove the truth
of what he says happened that day. You may not do that and if
you cannot do that, you gotta let me know. Does everybody
understand the difference? Okay, thank you.
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While the trial court did not state which rule of evidence it was referring
to, we assume it was KRE 801A(b)(1), which provides:
(b) Admissions of parties. A statement is not excluded by the hearsay
rule, even though the declarant is available as a witness, if the
statement is offered against a party and is:
(1) The party's own statement, in either an individual or a
representative capacity[.]
Burdette’s statement was admitted into evidence as the Commonwealth’s
Exhibit 3. He argues that forbidding him to draw inferences based on that
evidence essentially prohibited him from making arguments about his mental
state, which he claims violated his right to present a defense. See U.S. Const.
amend. VI (in all criminal prosecutions, the accused enjoys the right to have
the assistance of counsel for his defense); U.S. Const. amend. XIV § 1 (the
government is prohibited from “depriv[ing] any person of life, liberty, or
property without due proves of law[]”); Ky. Const. § 11 (ensuring an accused
“the right to be heard by himself and counsel” and to not “be deprived of his
life, liberty or property, unless by the judgment of his peers or the law of the
land[]”); see also Chambers v. Mississippi, 410 U.S. 284, 302 (1973) (“[f]ew
rights are more fundamental than that of an accused to present witnesses in
his own defense[]”); Dickerson v. Commonwealth, 174 S.W.3d 451, 471 (Ky.
2005) (recognizing the accused’s right to present a defense).
Burdette contends that assuming the jury followed the trial court’s
admonition, which the law presumes it would, it could not infer from the
evidence that his conduct was anything but wanton, which he claims
prejudiced him. See Mayo v. Commonwealth, 322 S.W.3d 41, 55 (Ky. 2010)
45
(“[a]n admonition is presumed to cure the improper comments, and a jury is
presumed to follow such an admonition[]”). Burdette also argues that the trial
court violated the long-standing rule that counsel is afforded wide latitude
during closing arguments. Padgett v. Commonwealth, 312 S.W.3d 336, 350
(Ky. 2010).
The law is clear that during closing arguments, counsel is permitted to
“discuss the facts proved, draw reasonable deductions therefrom, and may
attack the credibility of witnesses where his remarks are based on facts
appearing in the evidence.” Woodford v. Commonwealth, 376 S.W.2d 526, 528
(Ky. 1964). Here, Burdette’s statements were already admitted into evidence
and defense counsel was permitted to try and convince the jury to draw certain
inferences therefrom. Thus, the trial court erred in its legal reasoning for
prohibiting defense counsel from making inference from the evidence. We are
also troubled by the trial court interjecting itself into the trial twice by sua
sponte objecting to defense counsel’s remarks, without any objection raised by
the Commonwealth. Such interference by the trial court was unnecessary and
improper. Still, considering that the evidence presented at trial overwhelmingly
showed Burdette’s conduct was wanton, beyond a reasonable doubt, we are
compelled to find the trial court’s error harmless beyond a reasonable doubt.
The evidence clearly proved that: while impaired and watching pornography,
Burdette crashed into Det. Mengedoht’s vehicle, which had its flashing lights
activated, hardly applying his brakes. Given this overwhelming evidence, we
find the trial court’s error to be harmless beyond a reasonable doubt. See
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Dunlap v. Commonwealth, 435 S.W.3d 537 (Ky. 2013) (holding that to be
deemed harmless, preserved constitutional errors must be shown to be
harmless beyond a reasonable doubt), abrogated on other grounds by Abbott,
Inc. v. Guirguis, 626 S.W.3d 475 (Ky. 2021).
III. Conclusion
For the foregoing reasons, the judgment of the Jefferson Circuit Court is
affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Christopher Barrett Thurman
Louisville Metro Public Defender
COUNSEL FOR APPELLEE:
Daniel J. Cameron
Attorney General of Kentucky
Christopher Henry
Assistant Attorney General
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