Opinion
NO. 2012-CA-000348-MR
02-22-2013
ALICE STAMBAUGH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Ned Pillersdorf Prestonsburg, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JOHNSON CIRCUIT COURT
HONORABLE JOHN DAVID PRESTON, JUDGE
ACTION NO. 11-CR-00061
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; COMBS AND TAYLOR, JUDGES. COMBS, JUDGE: Alice Stambaugh has filed this appeal following her conviction of second-degree manslaughter in the Johnson Circuit Court. After our review of this sad case, we affirm.
On the morning of January 13, 2010, Stambaugh found her five-month-old grandson, Draven Stambaugh, dead in his crib. Stambaugh's daughter Heather and her son, Draven, lived with Stambaugh. Stambaugh provided primary care for Draven because Heather suffered from birth complications and severe post-partum depression.
Upon discovering baby Draven unresponsive in his crib, Stambaugh called EMS. When emergency responders arrived at her home, Stambaugh informed them that she had given Draven some children's medicine for allergy relief before putting him to bed. Draven could not be revived and was pronounced dead.
An autopsy was performed, and the toxicology tests revealed toxic levels of diphenhydramine and carisprodol. Diphenhydramine is the primary ingredient in allergy relief medicine commonly marketed as Benadryl; carisprodol is marketed under the commercial name Soma. The medical examiner ruled that Draven's cause of death was an overdose of the two substances.
Both Stambaugh and Heather were indicted for second-degree manslaughter and complicity to second-degree manslaughter. Stambaugh's trial took place in January 2012. The jury found her guilty of manslaughter in the second-degree. She received a sentence of five-years' incarceration. Stambaugh later filed a motion for a new trial, which the trial court denied. This appeal follows.
Stambaugh's primary argument is that the evidence of Soma was improperly admitted into evidence at trial. Our standard of review for evidentiary issues is whether the trial court abused its discretion. Partin v. Commonwealth, 918 S.W.2d 219, 222 (Ky. 1996) (overruled on other grounds by Chestnut v. Commonwealth, 250 S.W.3d 288 (Ky. 2008)). Our Supreme Court has defined abuse of discretion as a court's acting arbitrarily, unreasonably, unfairly, or in a manner "unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
The toxicology tests that resulted from the autopsy of Draven were performed at AIT Laboratories in Indianapolis. That company routinely conducts toxicology tests for the office of the Kentucky Medical Examiner. A toxicologist and a technician from AIT testified at trial. Stambaugh contends that the portion of their reports concerning Soma were inadmissible because neither the toxicologist nor the technician had personally identified the Soma in the tests. She argues that her Sixth Amendment right to confront an adverse witness was violated. The Confrontation Clause guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]" U.S. Const. amend. VI, cl. 4. Thus, the sole issue before us is whether the court erred in admitting evidence concerning the Soma.
In a well reasoned argument, Stambaugh relies on an opinion from the Supreme Court of the United States, Bullcoming v. New Mexico, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). Bullcoming addresses the following question, which is pertinent to our analysis:
Does the Confrontation Clause permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification. [sic]Id. at 2713. Bullcoming had been charged with driving under the influence, and the prosecution sought to introduce the results of a gas chromatography (blood alcohol or BAC) test. However, the laboratory technician who conducted the test was unavailable, and a surrogate analyst introduced the report at trial. The court concluded that it was error to admit the report without producing the certifying analyst. It reasoned that "an analyst's certification prepared in connection with a criminal investigation or prosecution . . . is 'testimonial,' and therefore within the compass of the Confrontation Clause." Id. at 2713-14 (quoting Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 2719 (2009)).
The Court considered that the blood alcohol test on Bullcoming had been conducted as part of a police investigation , that the chromatography test was known to be subject to human error, and that the analyst who presented the report at trial did not have a connection to the actual test.
Seeking to narrowly limit the holding in Bullcoming, Justice Sotomayor wrote a concurring opinion to explain why she believed the BAC test was testimonial. She stressed that the report was testimonial because it had been created for "the purpose of establishing or proving some fact at trial[.]" Id. at 2720. If there had been a reason other than its use at trial, the report would not be deemed testimonial in nature. Id. at 2722. She expressed her concern that the person who introduced the report and testified about it had not been associated with the lab where the tests were conducted. Id. Justice Sotomayor noted another disturbing discrepancy: that the report included written statements from the person who wrote it - but that a different person presented testimony concerning the written report of the original author. Id.
The case before us fits within the concurrence of Justice Sotomayor in Bullcoming, and the limits that she sought to impose are highly pertinent because of distinguishing facts in Stambaugh's case. The toxicology tests were part of a routine autopsy on Draven that was not performed for the purpose of proving a fact at trial. In fact, at the time of the autopsy, no police investigation had been undertaken. There was no suspicion that a crime might be involved until after the tests had been run. The toxicology report was introduced at trial by a toxicologist from AIT, the lab that produced the report. Not only did he have personal knowledge of how the lab conducts its testing; but he was the toxicologist who reviewed the report before it was sent to the medical examiner. Additionally, the report consists entirely of computer printouts. There are no personal written statements or analyses within it. Therefore, the facts of this case are wholly distinct from those in Bullcoming. We cannot agree that the court erred in permitting the toxicologist to testify at trial.
Additionally, the record is clear that the Soma evidence was a minor factor in Stambaugh's trial. The medical examiner and the toxicologist agreed that the diphenhydramine level was fatal on its own. Numerous lay witnesses testified that Stambaugh talked about giving Benadryl to Draven in order to help him sleep and that Heather would hide the bottle of Benadryl. None of the lay witnesses offered testimony about Soma. The Commonwealth's arguments focused on the level of diphenhydramine in Draven's system -- as well as Stambaugh's contradictory accounts of her actions. Soma was only briefly mentioned. The focus of the entire trial was the use and level of diphenhydramine and the evidence that Stambaugh had administered it to Draven. The issue as to Soma was subsidiary and secondary and was not dispositive of the ultimate conviction.
Under the particular circumstances of this case, we conclude that the trial court did not err in permitting the toxicologist to testify about the toxicology report at Stambaugh's trial. Our holding that the Soma evidence was not admitted in error renders moot Stambaugh's argument for directed verdict.
We affirm the judgment of the Johnson Circuit Court.
TAYLOR, JUDGE, CONCURS.
ACREE, CHIEF JUDGE, CONCURS AND FILES SEPARATE OPINION.
ACREE, CHIEF JUDGE, CONCURRING: I concur with the majority opinion but write separately merely to express my unease at seeming to rely on a concurring opinion of the Supreme Court of the United States. Bullcoming v. New Mexico, 131 S. Ct. 2705, 2720, 180 L. Ed. 2d 610 (2011) (Sotomayor, J., concurring in part). I agree that Justice Sotomayor's concurrence makes clearer than Bullcoming's majority opinion that business records are not testimonial in nature when the purpose thereof is not to establish or prove "some fact at trial[.]" Bullcoming v. New Mexico, 131 S. Ct. 2705, 2720, 180 L. Ed. 2d 610 (2011) (Sotomayor, J., concurring in part). And yet, this is a well established rule. See Bullcoming, 131 S.Ct. at 2717 ("A document created solely for an 'evidentiary purpose,' . . . made in aid of a police investigation, ranks as testimonial."); Melendez-Diaz v. Massachusetts, 557 U.S. ---, 129 S.Ct. 2527, 2539-40, 174 L.Ed.2d 314 (2009); Whittle v. Commonwealth, 352 S.W.3d 898, 904 (Ky. 2011). Therefore, rather than holding that "[t]he case before us fits within the concurrence of Justice Sotomayor in Bullcoming[,]" we should say it fails to fit the criteria reiterated by the majority in Bullcoming.
Because the result is the same, I concur. BRIEF FOR APPELLANT: Ned Pillersdorf
Prestonsburg, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky