Roger D. Burdette v. Commonwealth of Kentucky

• Court: Kentucky Supreme Court
• Decided: February 15, 2023
• Docket: 2022 SC 0015
• Status: Unknown

Opinion

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.

2 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

3 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

11 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.

14 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).

18 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

19 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

40 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

41 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.

42 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

43 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.

44 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

46 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