Commonwealth of Kentucky v. Hon. Sam Potter Judge, Warren District Court

• Court: Court of Appeals of Kentucky
• Decided: February 4, 2021
• Docket: 2019 CA 001691
• Status: Unknown

Opinion

RENDERED: FEBRUARY 5, 2021; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2019-CA-1691-MR

COMMONWEALTH OF KENTUCKY APPELLANT

APPEAL FROM WARREN CIRCUIT COURT v. HONORABLE STEVE ALAN WILSON, JUDGE ACTION NO. 19-CI-00599

HON. SAM POTTER, JUDGE, WARREN DISTRICT COURT; AND CARL DODERER APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: CLAYON, CHIEF JUDGE; COMBS AND JONES, JUDGES.

CLAYTON, CHIEF JUDGE: The Commonwealth of Kentucky (“the

Commonwealth”) appeals from the Warren Circuit Court’s order denying the

Commonwealth’s petition for a writ of mandamus and/or prohibition. The

Commonwealth seeks to compel the Warren District Court to issue an order denying Carl Doderer’s motion in limine on the issue of whether a chemist from

the Kentucky State Police (“KSP”) crime lab could testify regarding the presence

of Tetrahydrocannabinol (“THC”) in Doderer’s blood at the time of his arrest.

Finding no error, we affirm.

FACTUAL AND PROCEDURAL HISTORY

On April 27, 2017, Doderer was stopped by an officer for allegedly

striking the center lane marker while operating his vehicle. After stopping

Doderer, the officer alleged that he smelled alcohol, and a preliminary breath test

conducted on Doderer detected the presence of alcohol. Doderer was arrested for

driving under the influence (“DUI”), and a subsequent search of Doderer’s vehicle

uncovered a small amount of marijuana residue and drug paraphernalia in the

passenger seat and console.

After being placed under arrest, Doderer was transported to a medical

center and consented to a blood test for the presence of both alcohol and drugs.

The results yielded an alcohol reading of 0.079, below the legal limit of 0.08. The

test also showed the presence of marijuana of 4 ng/mL, with a margin of error of

+/- 1 ng/mL.

Doderer was charged with possession of marijuana, possession of

drug paraphernalia, careless driving, and DUI, first offense. The Warren District

Court scheduled a jury trial, and on February 20, 2019, Doderer filed a motion in

-2- limine requesting that the court prohibit Jason Berry, the chemist with the KSP

crime lab who had performed Doderer’s blood test analysis, from testifying

regarding the effect that THC may have had on Doderer. Doderer argued that such

testimony would only be admissible if offered through a duly qualified toxicologist

or forensic pathologist.

The district court held a hearing on March 13, 2019, at which Berry

testified. Ultimately, the district court agreed with Doderer and entered an order

on April 2, 2019, granting the motion in limine. Specifically, the district court

found that Berry had testified that his job was to detect the presence of a particular

drug and then to quantify the drug, and Berry had candidly admitted that he was

not a pathologist. Aside from knowing the general effects of certain drugs, Berry

testified that he did not offer opinions about how a certain drug may have been

affecting a certain person at a particular point in time.

The district court concluded that, with the backdrop of Kentucky

Rules of Evidence (KRE) 401 and 403 regarding the exclusion of relevant

evidence on the grounds of prejudice, confusion, or waste of time, Berry’s

testimony, without additional expert testimony, was inadmissible. Particularly, the

district court found that it would be prejudicial to allow the Commonwealth to

introduce a blood test result indicating the presence of THC in Doderer’s blood

-3- without any expert testimony as to whether the THC had actually impaired

Doderer.

Thereafter, on April 29, 2019, the Commonwealth filed a petition for

a writ of mandamus and/or prohibition requesting that the Warren Circuit Court

direct the Warren District Court to issue an order denying Doderer’s motion in

limine. This appeal followed.

ANALYSIS

“A writ of prohibition is an ‘extraordinary remedy and we have

always been cautious and conservative both in entertaining petitions for and in

granting such relief.’” Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 808 (Ky.

2004) (quoting Bender v. Eaton, 343 S.W.2d 799, 800 (Ky. 1961)). An appeals

court reviews the granting or denial of petitions for writs of prohibition and

mandamus under the same standard. University of Louisville v. Eckerle, 580

S.W.3d 546, 549 (Ky. 2019). The Kentucky Supreme Court set forth such

standard in Hoskins v. Maricle, where it stated:

A writ . . . may be granted upon a showing that (1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.

-4- 150 S.W.3d 1, 10 (Ky. 2004) (emphasis in original). Absent extraordinary

circumstances, an appellate court reviews the decision of a lower court in such

cases under the abuse of discretion standard. Trude, 151 S.W.3d at 810.

Here, the Commonwealth does not argue that the district court lacked

jurisdiction. Therefore, this case falls under the second class of writ, and we must

review whether the “conditions precedent” to issue a writ are present, which

include whether the trial court is acting or is about to act erroneously, the lack of

an adequate remedy on appeal, and great injustice and irreparable harm. See id.

The Commonwealth in this case has failed to prove that the district

court is acting or is about to act erroneously. The Kentucky Supreme Court has

stated that, “[o]n the question of experts, it has long been the law of this

jurisdiction that the decision as to the qualifications of an expert rests in the

discretion of the trial court.” Ford v. Commonwealth, 665 S.W.2d 304, 309 (Ky.

1983). Particularly, the Court in Stringer v. Commonwealth provided a four-prong

test to determine if certain expert opinion evidence is admissible:

(1) the witness is qualified to render an opinion on the subject matter, (2) the subject matter satisfies the requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), (3) the subject matter satisfies the test of relevancy set forth in KRE 401, subject to the balancing of probativeness against prejudice required by KRE 403, and (4) the opinion will assist the trier of fact per KRE 702.

-5- 956 S.W.2d 883, 891 (Ky. 1997).

In this case, the district court specifically found that Berry was not

qualified to testify regarding the effects of marijuana on Doderer. This finding was

supported by Berry’s own testimony, in which he admitted that he was not

qualified to give testimony on the subject matter and candidly admitted that he was

not a pathologist nor, aside from knowing the general effect of certain drugs, did

he offer opinions on how a drug may have been affecting a certain person at a

particular point in time. We need not go any further in the Stringer analysis to

confirm that the district court was neither erroneous nor did it abuse its significant

discretion.

CONCLUSION

For the reasons set forth above, we affirm the order of the circuit court

denying the Commonwealth’s petition for a writ of prohibition and/or mandamus.

ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE CARL DODERER: Daniel Cameron Attorney General of Kentucky B. Alan Simpson Bowling Green, Kentucky Jamie L. Spinks Special Assistant Attorney General Bowling Green, Kentucky

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