Opinion
NO. 2017-CA-001966-DG
01-18-2019
ADAM BELL APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Darrell A. Cox Covington, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Christopher S. Nordloh Special Assistant Attorney General Covington, Kentucky
NOT TO BE PUBLISHED ON DISCRETIONARY REVIEW FROM KENTON CIRCUIT COURT
HONORABLE KATHLEEN S. LAPE, JUDGE
ACTION NO. 16-XX-00006 OPINION AND ORDER
DISMISSING
** ** ** ** **
BEFORE: JONES, NICKELL AND TAYLOR, JUDGES. NICKELL, JUDGE: On discretionary review, Adam Bell seeks reversal of an appellate opinion of the Kenton Circuit Court affirming the Kenton District Court's judgment of conviction following a jury trial on a charge of operating a motor vehicle under the influence of alcohol. Upon careful consideration of the rules concerning discretionary review, we conclude review was improvidently granted.
Kentucky Revised Statutes (KRS) 189A.010.
At the outset, we note Bell's failure to comply with CR 76.12(4)(c)(v) which requires "a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner."
Kentucky Rules of Civil Procedure.
CR 76.12(4)(c)[(v)] in providing that an appellate brief's contents must contain at the beginning of each argument a reference to the record showing whether the issue was preserved for review and in what manner emphasizes the importance of the firmly established rule that the trial court should first be given the opportunity to rule on questions before they are available for appellate review. It is only to avert a manifest injustice that this court will entertain an argument not presented to the trial court. (citations omitted).Elwell v. Stone, 799 S.W.2d 46, 48 (Ky. App. 1990) (quoting Massie v. Persson, 729 S.W.2d 448, 452 (Ky. App. 1987), overruled on other grounds by Conner v. George W. Whitesides Co., 834 S.W.2d 652 (Ky. 1992)). Also in contravention of the provisions of CR 76.12(4)(c)(iv) and (v), Bell's brief does not contain a single reference to the record supportive of his arguments. Failing to comply with these rules is an unnecessary risk the appellate advocate should not chance. Compliance with CR 76.12 is mandatory. See Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010). Although noncompliance with CR 76.12 is not automatically fatal, we would be well within our discretion to strike the brief or dismiss the appeal for Bell's failure to comply with the rules. While we have chosen not to impose such a harsh sanction, we caution counsel that such latitude may not be extended in the future.
Bell was stopped for speeding by Erlanger Police Officer Adam Rigsby at 11:19 p.m. on February 9, 2016. Upon approaching the vehicle and making contact with Bell, Officer Rigsby detected a strong odor of alcohol and observed Bell's speech was slurred and he exhibited other signs of impairment. Bell admitted consuming "a few" drinks at a party that evening. Officer Rigsby conducted several field sobriety tests ("FST") including a countdown test, alphabet test and finger dexterity test which Bell failed to satisfactorily complete. Based on these results and his observation of Bell's physical characteristics, Officer Rigsby believed Bell was likely impaired due to his alcohol consumption and asked Bell to exit the vehicle. Upon standing, Bell was unsteady on his feet and used the car to regain his balance.
Officer Rigsby then directed Bell to complete additional FST to determine his level of impairment. Bell was unable to maintain his balance while receiving instructions on how to complete the walk-and-turn FST. He swayed, raised his arms, and put his foot down three times before reaching a 12-count during the one-leg stand FST. Bell exhibited impairment during the Horizontal Gaze Nystagmus ("HGN") test. Bell submitted to a preliminary breath test with the results indicating Bell was intoxicated. Officer Rigsby found probable cause to arrest Bell for driving under the influence ("DUI") and transported him to the Kenton County Detention Center. Bell declined Officer Rigsby's request to submit to a breath test. Bell was charged with first offense DUI and speeding.
This Court set forth definitions of nystagmus and HGN in Leatherman v. Commonwealth, 357 S.W.3d 518, 527 (Ky. App. 2011) as follows:
"Nystagmus is an involuntary rapid movement of the eyeball, which may be horizontal, vertical, or rotatory. (The Sloane-Dorland Ann. Medical-Legal Dict. (1987) p. 504.) An inability of the eyes to maintain visual fixation as they are turned from side to side (in other words, jerking or bouncing) is known as horizontal gaze nystagmus, or HGN." People v. Ojeda, 225 Cal.App.3d 404, 406, 275 Cal.Rptr. 472, 472-73 (1990).
The [HGN] test is one of the tests law enforcement officers perform either in the field or at the police station when they suspect an individual is under the influence of alcohol or some other drug. The prosecution often introduces the results of the HGN test in DWI prosecutions. This test is based on the theory "that alcohol and drug use increases the frequency and amplitude of HGN and cause it to occur at a smaller angle of deviation from forward." Although alcohol and drug use "may increase the HGN, it can also be produced by other pathological, chemical or natural causes." 3 Barbara E. Bergman and Nancy Hollander, Wharton's Criminal Evidence § 13:49 (15th ed. 2009).
Pursuant to KRS 189A.104(2), preliminary breath test results are inadmissible in court, with some exceptions. Stump v. Commonwealth, 289 S.W.3d 213, 215-16 (Ky. App. 2009), overruled on other grounds by Crouch v. Commonwealth, 323 S.W.3d 668 (Ky. 2010). In the instant case, the jury was never made aware a preliminary breath test had even been administered.
At trial, Officer Rigsby was the only witness called. His testimony was consistent with the facts set forth above. Pertinent to this appeal, Bell objected during Officer Rigsby's direct examination description of how HGN tests are administered. At the bench, counsel stated he had "read around the Federal system that, [inaudible] umm, on how this test is to be administered and some states don't allow it, but I just want a general objection." The trial court overruled the objection and Officer Rigsby's direct testimony continued without further objection regarding HGN testing and Bell's results. On cross-examination, Bell questioned Officer Rigsby extensively regarding his qualifications and training on DUI detection. Specific questioning related to HGN testing lasted approximately five minutes during which possible causes of nystagmus—aside from alcohol ingestion—were explored. Officer Rigsby testified he was only trained on the effect of alcohol on a subject's ability to visually track an object with corresponding nystagmus and was unaware of other, non-alcohol related causes of nystagmus. When Officer Rigsby indicated he did not understand counsel's question about "normal nystagmus," Bell attempted to have Officer Rigsby disqualified from testifying about the HGN test and sought to strike all testimony on the subject. The trial court denied Bell's request.
Technical issues with the video recording of the trial make it impossible to discern the full basis for the trial court's ruling. --------
Counsel continued questioning Officer Rigsby regarding alternative potential causes of nystagmus apart from alcohol, including the possibility of hypertension, motion sickness, caffeine or aspirin. The trial court called a bench conference and informed counsel if he could not produce some proof these alternative causes were legitimate he would direct the jury to disregard the line of questioning. Although counsel assured the trial court he could produce documentation following the lunch break, none was ever provided. No further questioning occurred related to HGN testing. The jury ultimately convicted Bell of DUI and the trial court imposed a sentence consistent with the jury's recommendation.
Bell timely appealed his conviction to the Kenton Circuit Court, asserting the trial court's limitation of his cross-examination of Officer Rigsby regarding issues impacting HGN tests violated the Sixth Amendment's Confrontation Clause and thereby deprived him of a fair trial. He further challenged Officer Rigsby's training and experience as insufficient "to render a reliable and educated opinion as to the Defendant's state on the evening in question." The Kenton Circuit Court affirmed, concluding Officer Rigsby was competent to testify as to his observations during administration of the HGN test based on his training and experience; Bell was afforded ample opportunity to impeach the witness and explore deficiencies in his knowledge of nystagmus; the trial court did not abuse its discretion in disallowing cross-examination regarding nystagmus effects from specific medical conditions; Bell was not prohibited from procuring and producing his own expert witness; no Sixth Amendment violation occurred; no undue prejudice resulted from the limitations placed on cross-examination; and substantial evidence was presented apart from the HGN test results to sustain the jury's verdict, thereby rendering harmless any alleged error from the HGN testimony. Bell timely moved for discretionary review in this Court.
Without having benefit of the record, and based on assertions in his motion in which Bell framed the issue as a challenge to the general reliability and admissibility of HGN testing, a motion panel of this Court granted discretionary review. That, however, is not the argument made in Bell's brief. The sole issue presented to this merits panel is a challenge to the limitation on cross-examination, a well-settled area of the law. Nothing new or novel is presented. Thus, upon further consideration of the briefs, and now having benefit of the record for review, we conclude discretionary review was improvidently granted in this matter.
Error correction is not the purpose of discretionary review. Special reasons must exist such as novel questions of law and the interpretation of statutes, matters of general public interest and the administration of justice, or clearly erroneous judgments resulting in manifest injustice. 7 Kurt A. Philipps, David V. Kramer and David W. Burleigh, Kentucky Practice-Rules of Civil Procedure Annotated, Rule 76.20, cmt. 1 (5th ed. West
Group 1995).Smothers v. Baptist Hospital East, 468 S.W.3d 878, 881 (Ky. App. 2015).
Bell has failed to articulate special reasons for review. Further, a substantial question exists as to whether the argument he presents is properly preserved for review. Thus, we have determined discretionary review was improvidently granted and the May 1, 2018, order granting same is hereby vacated. The motion for review of the decision of the Kenton Circuit Court is denied and, therefore, this appeal must be and hereby is DISMISSED.
ALL CONCUR. ENTERED: January 18, 2019
/s/ C Shae Nickell
JUDGE, COURT OF APPEALS BRIEF FOR APPELLANT: Darrell A. Cox
Covington, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Christopher S. Nordloh
Special Assistant Attorney General
Covington, Kentucky