Opinion
NO. 2012-CA-000771-MR
09-12-2014
JEFFREY KOTAREK APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Michael T. Lee Owensboro, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE JAY A. WETHINGTON, JUDGE
ACTION NO. 10-CR-00366
OPINION
AFFIRMING
BEFORE: CLAYTON, MAZE, AND NICKELL, JUDGES. NICKELL, JUDGE: After a six-day trial, jurors found Jeffrey Kotarek guilty of reckless homicide, leaving the scene of an accident with death or serious physical injury, tampering with physical evidence, failure to maintain required insurance, and having no or expired registration plates. All charges resulted from Kotarek's involvement in a hit-and-run incident from which thirteen-year-old Madalynn Matlock died four days later. Consistent with the jury's verdict and recommendation, the Daviess Circuit Court sentenced Kotarek to serve a total of fifteen years in the penitentiary and imposed fines of $1,525.00. Kotarek now appeals the conviction as a matter of right, alleging four evidentiary trial errors. Having reviewed the record, the briefs and the law, we affirm.
Kentucky Revised Statutes (KRS) 507.050, a Class D felony. Kotarek was originally indicted for murder, KRS 507.020, a capital offense. The trial court entered a directed verdict on that charge, but instructed jurors on second-degree manslaughter and reckless homicide.
KRS 189.580(1)(a), a Class D felony pursuant to KRS 189.990(1).
KRS 524.100, a Class D felony.
KRS 304.30-080(5), a Class B misdemeanor pursuant to KRS 304.99-010.
KRS 186.170, a violation pursuant to KRS 186.990(1).
FACTS
Matlock and Tracy Howard spent Saturday, March 6, 2010, together. About 6:00 p.m., they were walking along Old Highway 54—a two-lane road near Philpot, Kentucky—to meet another friend, Magen Huff, with whom Matlock planned to spend the night. Matlock and Howard were walking west—toward Owensboro and facing oncoming traffic—with Matlock in the center of the eastbound lane and Howard slightly ahead of her and to her left. Huff, also on foot, approached the girls from the west, intending to meet Matlock and Howard halfway. All three girls were thirteen years of age and sixth grade classmates.
Earlier that afternoon, Mike and Mark Schmitt had helped Kotarek move items to their homes as Kotarek prepared to separate from his wife. Between 2:00 p.m. and 6:00 p.m., Kotarek consumed four to six beers. Just before 6:00 p.m., Kotarek's wife called and asked him to bring home chicken.
Driving a 1986 red and white Ford Bronco, Kotarek left Schmitt's home on Old Highway 54 and headed to Lee's Chicken to pick up supper. Kotarek crested a hill, crossed the center line, and struck Matlock from behind—throwing her a few feet ahead of Howard. Howard screamed for the driver to stop, but he did not.
As a result of the impact, ten of Matlock's ribs, her pelvis and the left side of her skull were fractured; her brain hemorrhaged; her lungs were bruised; and her kidneys were damaged. After being treated at Owensboro Medical Health System and airlifted to Kosair Children's Hospital, Matlock died four days later.
Huff did not see the impact, but she did hear it. When Huff saw Howard waving her arms ahead of her, Huff ran toward her. As Huff ran, Howard called Huff's cell phone, telling her Matlock had been hit by a vehicle. Moments before receiving that phone call, Huff saw a dark-colored boxy vehicle for about three seconds as it passed her. According to Huff, the vehicle was "driving kinda fast."
Because the vehicle approached Howard and Matlock from behind them, Howard did not see it until it had already hit Matlock and continued driving. Howard saw the vehicle only a few seconds before it disappeared over a second hill. According to Howard, the vehicle "was going fast."
Kotarek reached Lee's Chicken at 6:28 p.m. and placed an order at the drive-thru window at 6:29 p.m. Cashier Kristen Cain noticed no damage to Kotarek's Bronco and smelled no alcohol. At 6:39 p.m., Kotarek called Mark Schmitt saying he had hit a deer. The deer collision was not reported to police.
Soon after the impact, Brian Hawkins and his wife were traveling east on Old Highway 54. Hawkins moved into the westbound lane to avoid roadway debris, and stopped when his wife saw a girl lying beside the road. At that point, Howard—hysterical—ran to Hawkins' car, beat on the window and said her friend had been hit. At 6:14 p.m., Hawkins called 911. When the operator asked the color of the vehicle that had struck Matlock and fled the scene, either Howard or Huff said "red."
When interviewed by Daviess County Detective Jerry Spurrier on the night of the hit-and-run, Howard identified where she and Matlock had been walking, the direction they had been traveling and their lane of travel. Howard said the vehicle that struck Matlock had crossed the center line. She identified the spot where Matlock's body finally landed.
In processing the scene, officers noticed most of the debris was in the eastbound lane, including several pieces determined to be part of a 1980-1986 Ford Bronco. Items collected that night included a Bronco emblem, a piece of gray plastic, a piece of gray and black plastic, and a white rubber tip. After obtaining a list of all 1980-1986 Broncos in the area, officers began contacting each registered owner.
On March 7, the day after the hit-and-run and Kotarek's alleged collision with a deer, Kotarek inspected the Bronco. He noticed minimal damage to the housing of the driver's side headlamp and the driver's side door no longer closed properly. That Sunday being such a nice day, Kotarek decided to spray the Bronco with water to remove dirt, mostly from the fender wells. He had intended to wash his wife's car too, but he did not get around to doing that.
On March 10, the day Matlock died, Det. Spurrier learned a 1986 Bronco registered to Kotarek had been involved in an accident in nearby Gibson County, Indiana, on March 8. After reading the Indiana accident report, Det. Spurrier discovered Kotarek had sold the Bronco to Mark Couch, a co-worker, on March 9—three days after the hit-and-run. Couch had subsequently given the Bronco's drive train to another co-worker, Kevin Rector, who had taken the vehicle to Olney, Illinois, to remove the engine and transmission. Upon finally locating and retrieving the Bronco and submitting it to the Kentucky State Police Crime Lab for analysis, the damage to the front driver's side and missing parts were found to be consistent with items recovered from the scene of the hit-and-run in Philpot. While inspecting the Bronco for evidence, officers recovered pieces of gray and black plastic and a metal piece with chrome—items determined to be part of the driver's side headlamp. A Caucasian head hair was recovered from the turn lamp assembly; a paint standard from Kotarek's Bronco matched red and white paint collected from the pink hooded sweatshirt and blue jeans Matlock wore when she was struck.
Officers interviewed Kotarek for two hours on March 20. At least a dozen times, Kotarek denied hitting "that little girl." He admitted being on Old Highway 54 for about an hour around 2:00 p.m. on March 6, but at 6:00 p.m.—the time of the hit-and-run—he claimed he hit a deer while driving the Bronco near his home on U.S. Route 231.
Lab analysis of the Bronco revealed no animal hair or blood.
In explaining the Indiana accident, Kotarek claimed while driving to work at the Toyota plant in Princeton, Indiana, on Monday morning, March 8, he had rolled the Bronco into a ditch. He said the Bronco landed on its passenger side as he reached into the floorboard to retrieve a bottle cap he had dropped. According to Kotarek, the Bronco was no longer drivable and was towed to an Indiana garage. Rather than continuing to incur storage charges, he chose to sell the vehicle for $100.00. It was unusual for Kotarek to drive to work because he normally carpooled with Chris Shaw. He was cited for having no insurance in Indiana as a result of flipping the Bronco.
Kotarek admitted drinking four to six beers in a period of four hours on March 6, and arguing with his wife upon arriving home with the chicken she had requested. Surveillance tape from Lee's Chicken confirmed Kotarek had purchased food that day around 6:30 p.m. Kotarek said he had been trying to slow down his drinking in light of his marital woes. During the interview, Kotarek stated he was certain he would have known if he had hit a person that night.
In preparation for trial, Kotarek filed a series of motions in limine. Of relevance to this appeal, he moved to exclude a police report, ban witnesses from testifying about the Bronco's speed, and exclude testimony about his consumption of beer on the day of the hit-and-run. Following a hearing on the motions, the trial court entered a lengthy written order preventing the Commonwealth from introducing expert or lay testimony about alleged intoxication, but allowing lay witnesses (the Schmitt brothers) to give their personal observations of Kotarek on March 6—and allowing introduction of Kotarek's police interview in which he personally admitted consuming four to six beers in the four hours that preceded Matlock being struck. The trial court also ruled: Howard and Huff could give their opinion of the speed of the vehicle that struck Matlock because they had "sufficient opportunity to observe the vehicle in question;" the police accident report would be excluded, unless Kotarek "opens the door[;]" and, that portion of Kotarek's police interview in which a question was prefaced with the remarks, you've been "known to drink a lot" and to "knock down a few[,]" would be played in its entirety because that is "simply representative of a police interview technique[.]" The court specifically reserved ruling on three other motions—that Daviess County Corporal Chris Wolter, author of the police report, be prevented from testifying about speed; that Det. Spurrier be prevented from stating Kotarek intentionally wrecked his Bronco in Indiana two days after the hit-and-run incident to cover up his involvement; and, that Det. Spurrier be prevented from stating his belief that Kotarek removed items from the Bronco to avoid detection.
Trial began February 20, 2012, and concluded February 27, 2012. Kotarek's defense was one of complete denial—he did not strike Matlock with his Bronco and he was not in the vicinity of the hit-and-run. While denying he traveled a route that put him in Matlock's proximity, he was not asked, and did not describe, the route he took from Mike Schmitt's home to Lee's Chicken. Following conviction and imposition of sentence, Kotarek appealed to this Court. We now affirm.
ANALYSIS
Kotarek challenges four evidentiary rulings. When reviewing evidentiary rulings made by a trial court, we look for an abuse of discretion. Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).
Kotarek first complains Howard and Huff should have been prohibited from testifying about the speed of the vehicle that hit Matlock. We disagree.
This issue was raised in a motion in limine the trial court overruled because both girls "had a sufficient opportunity to observe the vehicle in question in order to render an opinion as to the speed of the said vehicle." As expressed in Bowling Green-Hopkinsville Bus Co. v. Edwards, 248 Ky. 684, 59 S.W.2d 584, 586-87 (1933):
[i]t is uniformly regarded that the rate of speed at which an automobile is running is not a matter exclusively for expert testimony, and that a person of ordinary intelligence, having some knowledge as to the speed of automobiles generally, and actually witnessing the running of the machine, or deriving knowledge from the exercise of his own senses as to the speed, at or near the time of the injury caused by its operation, may testify to such speed as to a fact; the testimony being received and appraised according to the means of the observer and the standards he has used, the basis being tested by cross-examination. Wilder v. Cadle, 227 Ky. 486, 13 S.W.2d 497; Jones' Commentaries on Evidence (2d ed.) §§ 1262, 1264; Blashfield's Cyclopedia of Automobile Law, p. 1693; Lewis v. Miller, 119 Neb. 765, 230 N.W. 769, 70 A.L.R. 532. But the opinion of a witness as to the speed of the vehicle may be rejected because of insufficient opportunity for observation under circumstances like those presented in the case at bar. Some courts have rejected the evidence upon the ground of incompetency of the witness because he could have had no intelligent idea as to the speed. Koch v. Lynch, 247 Mass. 459, 141 N.E. 677; Hinderer v. Ann Arbor Ry. Co., 237 Mich. 232, 211 N.W. 734; Beecroft v. Great Northern Ry. Co., 134 Minn. 86, 158 N.W. 800, affirmed 242 U.S. 618, 37 S. Ct. 213, 61 L.Ed. 530; Wright v. Crane, 142 Mich. 508, 106 N.W. 71. Other courts have held that the matter of opportunity to judge the speed under the particular circumstances went to the weight of the testimony rather than to its admissibility, but nevertheless rejected it as of no evidential value. Himmelwright v. Baker, 82 Kan. 569, 109 P. 178; Flach v. Ball, 209 Mo. App. 389, 240 S.W. 465; Dilger v. Whittier, 33 Cal.App. 15, 164 P. 49; Ottofy v. Mississippi Valley Trust Company, 197 Mo. App. 473, 196 S.W. 428.In Edwards, the plaintiff's testimony about speed was deemed "but a hazardous guess, for under the circumstances she could not have possibly known anything about it. The evidence was insufficient to take the case to the jury upon that point, which was essential to the maintenance of the cause of action." Id. at 587.
The difference in the testimony rejected in Edwards, and the testimony admitted in this case, is far and wide apart. Neither Howard nor Huff gave an opinion of the actual speed at which the vehicle that struck Matlock was traveling. Huff said the vehicle was "driving kinda fast." Howard said "it was going fast." Both girls were familiar with the area—Huff had lived in her home on nearby Highway 142 for three years; Howard had lived in her home on Old Highway 54 for seven years.
Huff testified an SUV passed her just before she received the cell phone call from Howard saying Matlock had been hit. The only vehicle that passed Huff before she received the call was "driving kinda fast" and had tinted windows preventing her from seeing the driver. She testified the vehicle was traveling slower than vehicles on the bypass, but faster than those on Highway 142. She further testified the vehicle was initially coming toward her in the opposite lane, but veered into her lane. She stated she perceived the vehicle's speed as it passed her and estimated she saw the vehicle about three seconds.
Howard testified the vehicle that hit Matlock came from behind them. She saw the headlights come over the hill, but did not see the vehicle until after it had hit her classmate and was passing her. Howard described the vehicle as "going fast." She noted that cars that had passed her earlier in the day were moving much slower on Old Highway 54, and she thought the vehicle that struck Matlock was traveling in excess of the 35 mph speed limit. She testified she saw the vehicle for only a few seconds before it went over a second hill.
Both Huff and Howard had time and opportunity to observe the vehicle that struck Matlock. Both girls demonstrated a knowledge of speed as they were able to distinguish a normal speed from a faster speed. Under Edwards, the sole case on which Kotarek bases his allegation of error, the length and quality of an eyewitness's observation goes to the weight to be given to the testimony, not its admissibility. Defense counsel cross-examined both girls, therefore, he had the opportunity to test their observation and recollection. We discern no abuse of discretion and therefore, see no basis for reversal. Clark.
In two related complaints, Kotarek claims the trial court erroneously allowed Cpl. Wolter to testify about the speed of the Bronco that struck Matlock by wrongly admitting into evidence an accident report he prepared showing an "ESTIMATED TRAVEL SPEED BETWEEN 50 & 80 MPH." In two pretrial motions in limine, Kotarek sought to exclude the entire police report, first by alleging there was no factual basis for the estimate of speed, and then by arguing the Commonwealth had identified no expert witness who would testify about accident reconstruction and specifically, the point of impact. The first motion acknowledged witnesses at the scene "gave some estimates of the speed of the vehicle involved in the collision," but alleged "there is no foundation for those opinions and in fact most of the witnesses express it as a guess." Kotarek also objected to inclusion of a diagram that was not drawn to scale and was not prepared by an accident reconstructionist.
In a pretrial order, the trial court reserved its ruling on whether Cpl. Wolter could testify about the vehicle's speed, but sustained the defense objection to introduction of the police accident report, "except to the extent that [Kotarek] 'opens the door' for such evidence during the trial of this case." The trial court also noted the Commonwealth had indicated it would offer no testimony about a "point" of impact, but would instead offer testimony "about an area of impact" which the trial court deemed to be admissible.
On the first day of trial, the trial court ruled the police report would be admitted over the defense objection and Cpl. Wolter would be allowed to testify about speed. The next day, the police report was marked for identification purposes only. While Kotarek's objection to introduction of the report remained on the record, the Commonwealth began questioning Cpl. Wolter about the contents of the report.
During a bench conference, the Commonwealth sought to establish parameters for its questioning, specifically inquiring whether it could ask Cpl. Wolter if he was an accident reconstructionist—which he was not. The trial court directed the Commonwealth not to ask the question. A few minutes after questioning resumed, defense counsel approached the bench to add another prong to his argument for excluding the police report—this time citing Hodge v. Commonwealth, 287 S.W.2d 426 (Ky. 1956), a vehicular manslaughter case in which admission of an entire police report was held to be prejudicial error because under the facts of that case, much of the collision report was irrelevant hearsay.
In ruling on Kotarek's specific argument, the trial court noted defense counsel had originally objected to Cpl. Wolter testifying about speed. Kotarek's earlier objection to Huff and Howard testifying about speed having already been overruled, and both girls having testified about speed and having been tested by cross-examination, the trial court found the hearsay objection was no longer viable and Cpl. Wolter could now testify about the information he received from Huff and Howard and what he did with that information. The trial court went on to say, if Cpl. Wolter's estimate of the vehicle traveling between fifty and eighty miles an hour was baseless, Kotarek could expose that unreliability through vigorous cross-examination. On both direct examination and cross-examination, Cpl. Wolter acknowledged his estimate of speed was based solely upon statements from Huff and Howard—two thirteen-year-old girls.
We agree with the trial court's ruling. Once the girls had testified about how fast the vehicle was traveling, the Commonwealth was free to question Cpl. Wolter about the information he received and how he used it. Thus, we discern no abuse of discretion in the trial court allowing Cpl. Wolter to reveal and explain his estimation of the Bronco's speed—clearly billed as information provided by Huff and Howard.
Admission of the entire police report, however, is another matter. After a lunch break, Cpl. Wolter returned to the witness stand and the Commonwealth resumed questioning him about the report, focusing this time on three "human factors" identified in the report as being involved in the hit-and-run. The first was "alcohol involvement" which Cpl. Wolter indicated was based on witness statements mentioning Kotarek's consumption of alcohol that day. The second factor was "exceeded stated speed limit" which was based on statements from Huff and Howard since there were no tire marks or roadway evidence. When interviewed the evening of the hit-and-run, Huff had stated, "I know [the vehicle] was going probably eighty miles per hour." Based on that statement, Cpl. Wolter entered a generous range of fifty to eighty miles an hour on the report. The third factor was "not under proper control" which was also based on witness statements indicating the vehicle was traveling in the wrong lane, supported by all the debris from the collision being found only in the wrong lane.
On cross-examination, Cpl. Wolter stated no evidence of alcohol use was located at the scene.
Hearsay is inadmissible unless an exception makes it admissible. KRE 802 and 803. Public records and reports are admissible under KRE 803(8), but the same provision excludes investigative reports compiled by police or prepared by a government, public office or agency when offered in a case in which it is a litigant, as well as "factual findings offered by the government in criminal cases." While admission of the police report violated KRE 803(8), not every violation requires reversal. Here, the police report was cumulative of testimony already given by Huff and Howard, both of whom were cross-examined thoroughly. The police report itself "was neither so damning nor so sensational on its own that it could have swayed the jury's findings." Brown v. Commonwealth, 313 S.W.3d 577, 609 (Ky. 2010). Admission of the police report was harmless and we must disregard errors that do "not affect the substantial rights of the parties." RCr 9.24. See Brewer v. Commonwealth, 206 S.W.3d 343, 352 (Ky. 2006) (admission of hearsay testimony harmless when cumulative of other testimony presented at trial). In light of the overwhelming evidence of Kotarek's guilt—including his own statement that he alone drove the red and white Bronco, paint standards from the Bronco matched paint found on the jacket and jeans Matlock wore at the moment she was struck, and missing parts from Kotarek's Bronco were recovered at the scene of the hit-and-run—Cpl. Wolter's estimate of speed based on information collected from eyewitnesses did not seal his fate. While the police report was erroneously admitted, that error was harmless. RCr 9.24.
Kentucky Rules of Evidence.
Kentucky Rules of Criminal Procedure.
The final allegation is that the trial court erroneously admitted testimony that Kotarek consumed four to six beers between 2:00 p.m. and 6:00 p.m. on March 6, 2010. This proof came mainly from the Schmitt brothers and from Kotarek's own police interview. A fourth witness, the drive-thru cashier at Lee's Chicken, testified she did not smell alcohol when she waited on Kotarek at about 6:30 p.m., and he did not appear to be intoxicated or impaired. No expert witness was called to the stand and no one testified Kotarek was intoxicated or attempted to explain the effect of consuming beer on the body, the testimony was merely that he drank beer on the day of the hit-and-run.
Mark Schmitt was the first witness called at trial by the Commonwealth. He testified Kotarek was at his home around 2:00 p.m. on March 6, 2010, and stayed thirty to forty-five minutes. During that time, Kotarek consumed one beer and did not appear to be impaired. Mike Schmitt followed his brother on the witness stand. He testified Kotarek arrived at his home between 1:00 and 1:30 p.m. on March 6. Later that afternoon, when they stopped to get gas, Kotarek bought a twelve-pack of beer, but Mike did not believe it was ever opened. Mike testified Kotarek drank a total of four beers in his presence—one at Mike's home, two at Kotarek's home, and one at Mark's home. After consuming the beer, Kotarek did not appear intoxicated or unfit to drive.
Kotarek's two-hour police interview was played for jurors at trial. During the interview, Kotarek spoke about the amount of beer he consumed at various times. Initially, he said he had a few beers; then he stated he had four or five beers that day; and, then he stated twice he drank six beers.
Kotarek should take no comfort in the absence of breath, blood, urine or field sobriety test results from March 6. Had he stopped after striking Matlock, surely one or more of those tests would have been performed. But he did not stop —he continued driving. Kotarek did not come to the attention of officers until March 10—after they learned of an accident in Indiana involving a 1986 Bronco registered to Kotarek. He was not interviewed until March 20—long after any substance in his system would have dissipated. Thus, there was no opportunity for officers to collect samples.
Kotarek filed a motion in limine to exclude all testimony about alcohol consumption. He argued no lay witness could satisfy KRE 701 by forming an opinion "rationally based on the perception of the witness" that would be "[h]elpful to a clear understanding of the witness' testimony or the determination of a fact in issue[.]" He argued evidence of mere consumption would allow jurors to speculate he was driving under the influence of alcohol when there was no evidence he drove while impaired. In its written order, the trial court ruled no one could testify Kotarek was intoxicated but, with the proper foundation, lay witnesses could testify to about their "personal observation of the Defendant."
We agree with the trial court's ruling. Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." KRE 401. Relevant evidence is admissible, unless specifically excluded. KRE 402.
Kotarek was originally charged with capital murder, (and other crimes):
when acting under circumstances manifesting extreme indifference to human life, he wantonly engaged in conduct which created a grave risk of death to Madalynn Matlock, and thereby caused the death of Madalynn Matlock, when he operated a motor vehicle under the influence of alcohol and/or operated his vehicle in such a manner as to cause his vehicle to strike Madalynn Matlock, thereby causing the death of Madalynn Matlock[.]Evidence of Kotarek's consumption of alcohol before striking Matlock with his Bronco was relevant and admissible to prove wanton conduct. It was up to the jury, after hearing Kotarek drank six beers but did not appear to be impaired, to determine whether his conduct rose to "extreme indifference to human life." Ramsey v. Commonwealth, 157 S.W.3d 194, 197 (Ky. 2005). Admitting testimony that Kotarek drank beer was not an abuse of discretion.
Kotarek's reliance upon Burton v. Commonwealth, 300 S.W.3d 126 (Ky. 2009), is for naught. Burton was convicted of second-degree manslaughter (and other crimes) following a deadly head-on collision. A urine sample collected from Burton soon after the crash tested positive for THC (marijuana) and cocaine, but experts could not say how much or when the drugs had been ingested. The most they could say was "Burton had ingested cocaine and marijuana sometime in the past." Burton, 300 S.W.3d at 131. Not so with this case. Kotarek and the Schmitt brothers testified to the substance consumed, the amount consumed, and the time frame in which it was consumed based on personal observation. While we do not deem admission of this testimony to be error, if it was, it was harmless and we must disregard harmless errors. RCr 9.24.
For the foregoing reasons, we affirm the conviction entered by the Daviess Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Michael T. Lee
Owensboro, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky