Burchett v. Commonwealth

98 S.W.3d 492 (Ky. 2003)



In a criminal prosecution, neither side can give in evidence what the custom or practice of either of the parties is. The question is not what they have been accustomed to do, but what they have done at the time in controversy. 


Defendant was driving to a hospital where he had been called to come as soon as possible for the health of his child. Defendant struck the victim's car (which had the right of way) and the victim died. Defendant denied having alcohol that day, but did admit to having alcohol daily. In a test, his blood results were free of alcohol. Defendant denied having marijuana that day, but did admit to having one joint in the morning and one joint in the evening (related to his spinal bifida medical problem). The defendant was not tested for marijuana. The trial court convicted the defendant of reckless homicide and the Court of Appeals affirmed defendant's conviction as the result of the fatal automobile collision. Defendant appealed. 


Does the evidence that defendant smoked marijuana on a daily basis prove that he smoked marijuana on the day of the collision.




The Court held that the trial court erred when it admitted evidence of defendant's habit of smoking marijuana. The supreme court revisited the issue of whether habit evidence was admissible in Kentucky to conclude that it was not for several reasons: (1) introduction of potentially voluminous and confusing collateral evidence to properly define the habit; (2) prejudice to defendant; and (3) habit evidence did not necessarily lead to the conclusion that defendant had indulged in the habit at the time in question - such as, in the instant case, was illustrated by the alcohol habit and defendant's proven non-consumption.

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