Tammy Feinauer v. Commonwealth of Kentucky ( 2021 )

RENDERED: JULY 2, 2021; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0471-MR
TAMMY FEINAUER APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT
v. HONORABLE DANIEL J. ZALLA, JUDGE
ACTION NO. 16-CR-00912
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: COMBS, LAMBERT, AND McNEILL, JUDGES.
LAMBERT, JUDGE: Tammy Feinauer appeals from the Campbell Circuit Court’s
judgment sentencing her to two consecutive two-year prison sentences in
accordance with a jury’s having found her guilty of two counts of reckless
homicide. We reverse and remand because the trial court permitted the
Commonwealth to introduce text messages evidencing prior bad acts by Feinauer
insufficiently tethered to the reckless homicide charges.
I. Relevant Factual and Procedural History
In the evening of March 3, 2016, Feinauer left her home to attend an
event at her child’s school. En route, her vehicle left her lane of traffic and
collided head-on with a vehicle traveling in the opposite direction, tragically
killing both occupants. Feinauer was taken to the University of Cincinnati
Hospital (UC Hospital) in Ohio for treatment. At the hospital her blood was drawn
multiple times. The first blood draw showed Feinauer to have a blood alcohol
level of 0.048%. No alcohol was detected in the subsequent draws, nor were any
drugs detected in any draws.
Feinauer was indicted on two counts of reckless homicide, which
eventually proceeded to a January 2020 jury trial. Feinauer was found guilty of
two counts of reckless homicide, and the jury recommended she serve consecutive
two-year sentences. The trial court sentenced Feinauer in accordance with the
jury’s recommendation, after which she filed this appeal. Additional facts will be
related as necessary in our analysis.1
1
When relating the evidence presented at trial, Feinauer repeatedly cites to her counsel’s
opening argument instead of to the testimony, but “an attorney’s arguments do not constitute
evidence.” Dixon v. Commonwealth, 263 S.W.3d 583, 593 (Ky. 2008).
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II. Analysis
A. The Text Messages Were Inadmissible
We begin with Feinauer’s argument that the trial court erred by
admitting about fifteen texts, dating from November 2015 to March 2016, she had
sent regarding speeding, drinking and driving, and/or texting and driving. We
agree.
It is generally illegal to have open containers of alcohol in the
passenger compartment of a motor vehicle under Kentucky Revised Statute (KRS)
189.530(2). It is also generally illegal to text and drive under KRS 189.292(2).
Speeding is also against the law (see, e.g., KRS 189.390), as is driving while
impaired. KRS 189A.010. Plainly, therefore, the texts were evidence that
Feinauer had engaged in prior misconduct (i.e., bad acts).
“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.” Clark v. Commonwealth, 223 S.W.3d 90, 96 (Ky. 2007)
(internal quotation marks and citation omitted). Consequently, courts must be
wary when deciding whether to admit prior bad acts evidence because “there exists
universal agreement that evidence of this sort is inherently and highly prejudicial
to a defendant.” Bell v. Commonwealth, 875 S.W.2d 882, 890 (Ky. 1994).
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Admission of evidence regarding prior bad acts is governed by
Kentucky Rule of Evidence (KRE) 404(b), which provides in relevant part:
(b) Other crimes, wrongs, or acts. Evidence of other
crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in
conformity therewith. It may, however, 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 . . . .
KRE 404(b) is plainly “exclusionary in nature . . . .” Clark, 223 S.W.3d at 96.
The Commonwealth argues that the evidence was admissible to show
Feinauer’s consciousness of guilt, an “unenumerated exception to KRE 404(b)’s
rule of inadmissibility.” McDaniel v. Commonwealth, 415 S.W.3d 643, 658 (Ky.
2013). Of course, “evidence is not admissible just because a party asserts that [it]
tends to support one of the [KRE 404(b)] listed purposes” because a trial court also
“must weigh the evidence’s probativeness against the danger of undue prejudice.”
Commonwealth v. Bell, 400 S.W.3d 278, 282-83 (Ky. 2013) (internal quotation
marks and citations omitted). Naturally, “[a]ll relevant evidence offered against a
defendant will have some prejudicial tendency; otherwise, it would not be offered.
The question is whether it creates a danger of undue prejudice.” St. Clair v.
Commonwealth, 455 S.W.3d 869, 893 (Ky. 2015).
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KRE 404(b) was promulgated to prevent admission of pure character
or propensity evidence, which is offered to show “that on other occasions a person
has acted in a particular way” and so is “the sort of person who does that sort of
thing or acts that way” meaning that 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). Courts utilize a three-part test
to make the “often difficult” determination of whether KRE 404(b) evidence
should be admitted. Jenkins v. Commonwealth, 496 S.W.3d 435, 457 (Ky. 2016).
First, the court asks whether “the evidence [is] relevant for some
purpose other than to prove the criminal disposition of the accused? Aside from
showing criminal propensity, that is, the extrinsic act evidence must bear
materially on an element of the offense or on some other fact actually in dispute.”
Id. (internal quotation marks and citations omitted). Second, “[t]he court should
also consider whether the extrinsic act evidence is sufficiently probative, i.e., could
the jury reasonably infer that the prior bad acts occurred and that [the defendant]
committed such acts[?]” Id. (internal quotation marks and citations omitted).
Finally, the court must ask, “is the extrinsic act evidence unduly prejudicial, that is,
is the tendency of the evidence so strongly to lead the jury into improper character
inferences that that tendency substantially outweigh[s] [the evidence’s] probative
value with regard to its proper uses?” Id. (internal quotation marks and citation
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omitted). We review a trial court’s evidentiary decisions under the abuse of
discretion standard. Matthews v. Commonwealth, 371 S.W.3d 743, 749 (Ky. App.
2011).
We agree with Feinauer that the texts are minimally probative, at best,
and their prejudicial impact far outstrips that extremely limited probative value.
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. The evidence that she had drunk while driving,
texted while driving, or sped in the past, therefore has no meaningful relationship
to whether she did so at the time of the fatal collision. In sum, we discern no
element(s) of reckless homicide for which the texts had material, probative value.
The Commonwealth argues the texts show Feinauer’s consciousness
of guilt since they, generally speaking, show she knew it was wrong to drink and
drive, text and drive, or speed. Of course, speeding, texting and driving, driving
while impaired, and having an open container of alcohol in a vehicle are contrary
to Kentucky law, as previously explained. However, the Commonwealth has not
cited, nor have we independently located, authority admitting evidence to show a
defendant could have pre-offense consciousness of guilt. To the contrary, the
authorities discussing consciousness of guilt consistently refer to post-crime
conduct. See, e.g., 2 ROBERT P. MOSTELLER, ET AL., MCCORMICK ON EVIDENCE §
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263 (8th ed. 2020) (“Many acts of a defendant after the crime seeking escape are
received as admissions by conduct, constituting circumstantial evidence of
consciousness of guilt and hence of the fact of guilt itself.”); 1 EDWARD J.
IMWINKELRIED, UNCHARGED MISCONDUCT EVIDENCE § 3:4 (2020) (“In turn, the
consciousness of guilt is evidence that the defendant is the person who committed
the crime. The uncharged misconduct is an ‘ex post facto indication’ of the
defendant’s identity as the criminal. Since other persons do not manifest the same
consciousness, the evidence at least slightly strengthens the inference of the
defendant’s identity as the criminal.”) (footnotes and citations omitted). In short,
we strongly question whether the consciousness of guilt exception can logically
apply to admit KRE 404(b)-type evidence depicting acts which occurred prior to
the offense(s) for which the defendant stands charged.
However, we need not definitively opine on the existence of a pre-
crime consciousness of guilt exception because it would not apply under these
facts. Though not explored deeply by the parties here or below, it is inarguable
that “everyone is presumed to know the law; therefore, ignorance of the law is not
an excuse.” Department of Revenue, Finance and Administration Cabinet v.
Revelation Energy, LLC, 544 S.W.3d 170, 176 (Ky. App. 2018). See also, e.g.,
Bullitt v. Commonwealth, 595 S.W.3d 106, 115 (Ky. 2019). So, the
Commonwealth did not need the texts to show that Feinauer knew speeding,
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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. In fact, the Commonwealth admitted in its closing argument that “everybody”
knows that it is against the law to drink and drive. Video Record, 1/28/20,
11:09:55, et seq.
Moreover, the Commonwealth points to no evidence showing that
Feinauer was speeding, texting, talking on the phone, or impaired at the time of the
collision.2 “A person is guilty of reckless homicide when, with recklessness he
causes the death of another person.” KRS 507.050(1). A person acts recklessly
when he or she “fails to perceive a substantial and unjustifiable risk that the result
will occur or that the circumstance exists” and that risk “must be of such nature
and degree that failure to perceive it constitutes a gross deviation from the standard
of care that a reasonable person would observe in the situation.” KRS 501.020(4).
Having an open container of alcohol in the vehicle could have been a proper factor
in concluding that Feinauer was guilty of reckless homicide, but showing that she
2
At least one text admitted into evidence also discussed Feinauer’s speeding but the
Commonwealth’s brief did not directly respond to Feinauer’s assertion that the evidence at trial
showed that she was not speeding at the time of the collision. In short, the Commonwealth cites
to no specific argument that speeding was a factor in the fatal crash, so evidence that Feinauer
had exceeded the speed limit in the past was wholly irrelevant. Also, she was apparently found
with a phone in her hand after the accident but there is a dispute about whether it was her phone
or whether someone else gave her a phone soon after the collision so she could contact her
father. Regardless, the Commonwealth cites to no evidence directly showing that she was
texting or talking on the phone at the time of the collision.
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had engaged in illegal activities while driving in the past did not materially show
that she acted recklessly in causing the tragic collision.
Instead, the prior instances of misconduct exemplified by the texts
seem designed to show that Feinauer had a propensity for making poor decisions
while driving. Indeed, the Commonwealth repeatedly stressed the texts in its
closing argument to show that Feinauer had a history of breaking the law while
driving. In fact, the Commonwealth began its closing argument by discussing the
texts for over two minutes, including memorably asserting that:
every time she [Feinauer] got behind the wheel it was
almost like she was playing a game of Russian roulette . .
. . Each time she did it, day after day after day. You
heard the text messages. You can read them. . . . It’s
Russian roulette each time. Something was bound to
happen at some point. This was the norm. And her norm
was dangerous. Her norm was reckless.
Video Record, 1/28/20, 10:57:23, et seq.3 Saying a person’s “norm” is to engage
in bad acts is functionally indistinguishable from saying their propensity is to
engage in bad acts—the very type of “if they did it before they must have done it
now” evidence KRE 404(b) was designed to guard zealously against. The trial
court abused its discretion in admitting the texts.
3
The Commonwealth returned to its “Russian roulette” characterization later in its closing
argument.
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The texts showed Feinauer engaging in prior, unrelated misconduct
while driving in an emotionally charged case. The Commonwealth used the texts
to argue repeatedly that Feinauer played a deadly game of “Russian roulette”
whenever she drove a vehicle. Under those facts, we cannot logically say that the
admission of the texts was an inconsequential, harmless error. St. Clair, 455
S.W.3d at 898 (“This Court cannot say with fair assurance that the jury was not
swayed by this impermissible proof. Even if this Court could not say for certain
that the error had a substantial effect on the jury’s verdict, it is left in grave doubt
and thus the conviction cannot stand.”) (internal quotation marks and citations
omitted); Bell, 875 S.W.2d at 890 (deeming prior bad acts evidence to be
“inherently and highly prejudicial to a defendant.”). We reverse Feinauer’s
convictions.
B. Other Issues Which May Recur on Remand
Having determined that Feinauer’s convictions must be reversed, we
will briefly discuss issues which may recur on remand. Feinauer argues the
Commonwealth belatedly disclosed evidence pertaining to the first blood draw at
UC Hospital, such as the identity of who drew the blood. But that argument is
moot since Feinauer has that evidence well in advance of a retrial, meaning it is
irrelevant whether she had it sufficiently in advance of the first trial.
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Feinauer relatedly argues her medical records from UC Hospital,
which include the first blood draw which revealed alcohol in her bloodstream,
were not properly authenticated. Though we have concerns with the
authentication, we again need not definitively opine on it because additional, or
different, authentication procedures may occur on remand. Moreover, it appears
that the records were made an exhibit but were not admitted as evidence, and we
decline to opine on whether an exhibit hypothetically was admissible.
Because UC Hospital is located outside Kentucky, Feinauer argues
authentication of its records is governed by Matthews v. Commonwealth, 163
S.W.3d 11 (Ky. 2005). Matthews remains viable, but subsequent statutory
amendments have provided an additional certification route. In Matthews, as here,
the issue was the proper authentication of out-of-state medical records from a
hospital. Our Supreme Court held that the records had to satisfy the KRE 902(11)
certification requirements because the statutory exception for authenticating
medical records found at KRS 422.300 did not apply to out-of-state hospital
records.4 Id. at 27. To be properly certified, Matthews explains that the out-of-
4
Generally, KRE 902(11)(A) provides that medical records may be self-authenticated as a
business record if there is no indication they are untrustworthy and the records custodian
certifies:
the original or a duplicate of a record of regularly conducted activity within the
scope of KRE 803(6) or KRE 803(7) . . .
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state records must satisfy KRE 902(11) by containing a certification stating that
they “were made at or near the time of the occurrence of the matters set forth, that
they were made by a person with knowledge of the matters, . . . [and] that the
records were regularly kept.” Id.
Here, the certification provides that the records were “true and
complete reproductions of the original or electronic medical records that are kept
in the regular course of business for UC Health” and “were made at the time of the
condition and/or occurrences reported therein or within a reasonable time
thereafter and accurately reflect the condition and/or occurrence.” But the
certification is not signed by the records custodian (instead, her name appears
printed on an email signature line), nor does the certification state that the records
“were made by a person with knowledge of the matters . . . .” Matthews, 163
S.W.3d at 27. Moreover, KRE 902(11)(C) requires a certification to contain “a
written declaration under oath subject to the penalty of perjury . . . .” The
purported certification from the UC Hospital records custodian contains no such
declaration.
(i) Was made, at or near the time of the occurrence of the matters set forth,
by (or from information transmitted by) a person with knowledge of those
matters;
(ii) Is kept in the course of the regularly conducted activity; and
(iii) Was made by the regularly conducted activity as a regular practice.
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We also note the General Assembly subsequently amended KRS
422.300 (after Matthews but before the trial at hand) to encompass authentication
of records from out-of-state hospitals. At the time Matthews was rendered, the
statute provided that ‘“[m]edical charts or records of any hospital licensed under
KRS 216B.105 that are susceptible to photostatic reproduction may be proved as to
foundation, identity and authenticity without any preliminary testimony . . . .’”
Matthews, 163 S.W.3d at 23 (quoting KRS 422.300) (emphasis in Matthews). Of
course, hospitals outside Kentucky are not licensed under KRS 216B.105 (which
generally requires a license to operate a healthcare facility). Now KRS 422.300(2)
provides in relevant part that “[m]edical charts or records of any hospital licensed
under either KRS 216B.105 or a similar law of another state or the United States
that are susceptible to photostatic reproduction may be proved as to foundation,
identity and authenticity without any preliminary testimony . . . .” (Emphasis
added.) Therefore, the UC Hospital records at issue may be authenticated via the
procedures outlined in KRS 422.300, et seq., provided that Ohio has a statute
similar to KRS 216B.105 and all the other requirements are met. On remand, we
are confident that the trial court will ensure that the UC Hospital records are
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properly authenticated via sufficient testimony or otherwise before permitting them
to be introduced.5
Finally, Feinauer argues Jack Hedges, a Kentucky State Trooper who
served as an accident reconstructionist for the Commonwealth, testified at trial to
opinions not contained in the Commonwealth’s pretrial expert disclosure report.
To avoid a party’s being “deliberately surprised at trial[,]” precedent generally
supports “the principle that an expert may not testify to an additional, undisclosed
principle or premise not readily deducible from the conclusions contained in that
expert’s report.” Jones v. Commonwealth, 237 S.W.3d 153, 158 (Ky. 2007).
Because the convictions are being reversed and remanded on other grounds, we
5
We decline to opine as to whether some handwritten comments on Feinauer’s medical records
mean they could not have been properly certified. The parties have not cited, nor have we
located, the UC Hospital records in the record before us (likely because they were not introduced
into evidence). The records custodian must certify that any copies provided to either party (after
all, Feinauer also presumably could subpoena the records) are accurate reproductions of the
originals. But we cannot know if the original records contain the handwritten notations.
Feinauer may raise any argument she deems proper on remand regarding the handwritten
notations as we decline to offer an advisory opinion in a vacuum.
We also decline to engage Feinauer’s speculation that the Commonwealth “replaced the
unclean copy of medical records used during the trial with a clean copy. If this is true, it is jaw
dropping and proves that the Commonwealth knew they used an altered set of medical records.”
Appellant’s brief, p. 22. Feinauer does not cite to the record to support what amounts to a claim
of prosecutorial misconduct, and even seems unsure if the alleged alteration took place, given
that she says it would be improper “if” true. It is even unclear to what Feinauer is referring since
the records were not introduced into evidence. We remind all counsel of their obligations under
the appropriate ethics rules, such as Supreme Court Rule (SCR) 3.130(3.4)(a) (which provides
that it is improper for an attorney to, among other things, “unlawfully alter, destroy or conceal a
document or other material having potential evidentiary value”) and SCR 3.130(3.1) (which
requires a lawyer to, essentially, only raise arguments containing a good faith basis in the law
and facts). We expect on remand that all counsel will conduct themselves with scrupulous
regard for all applicable laws and rules of procedure, evidence, and professional responsibility.
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need not definitively determine whether any errors occurred here because the
landscape on remand will be different.
The disclosure indicated that Trooper Hedges would testify that the
pre-collision data were indicative of Feinauer’s having been a distracted or
intoxicated driver. At trial, the Commonwealth asked Trooper Hedges about any
information he heard at trial that he did not previously know, and he responded that
he did not know about the text messages and the toxicology report from UC
Hospital. The Commonwealth then asked a lengthy question which essentially
asked Hedges whether he maintained the same opinions he had before trial, and he
responded that he still deemed Feinauer a distracted driver but added that the
toxicology report made him believe she had exercised “poor judgment.”
Feinauer contends that “it borders absurdity” to believe the
Commonwealth did not discuss the texts and toxicology report with Trooper
Hedges before trial. Appellant’s brief, p. 25. In Feinauer’s view, the
Commonwealth’s disclosure intentionally omitted Trooper Hedges’ assessment of
the toxicology report and texts “to prevent defense counsel from preparing for
those opinions and/or address[ing] his qualifications to even offer such opinions
prior to trial” because “[h]ad those opinions been divulged in his expert disclosure,
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a Daubert[6] hearing would have been requested . . . .” Id. The Commonwealth
maintains the disclosures were sufficient but does not directly address Feinauer’s
argument that Trooper Hedges exceeded the opinions expressed in the disclosures.
Again, Feinauer is accusing the Commonwealth of having engaged in
misconduct, or at least gamesmanship, without citing concrete proof thereof.
While it would have been reasonable for the Commonwealth before trial to have
gone over the toxicology report with Trooper Hedges, Feinauer cites nothing to
show that occurred. Also, Trooper Hedges opined before trial that Feinauer was a
distracted driver, and his statement that Feinauer exercised poor judgment could be
deemed “readily deducible” from his opinion that she was distracted or impaired
since driving while distracted or impaired generally shows poor judgment.
In any event, everyone now knows that Trooper Hedges is aware of
the toxicology report (the texts no longer being an issue since they will be
excluded on remand) and believes Feinauer exercised poor judgment. On remand,
Trooper Hedges may prepare a supplemental expert report and the Commonwealth
may submit a revised expert disclosure, each of which should fully set forth
Trooper Hedges’ opinions and the bases therefor. And, in turn, Feinauer may seek
6
Named after Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786,
125 L. Ed. 2d 469 (1993), “[a] Daubert hearing refers to a pre-trial hearing where the trial judge
initially determines if the witness’s opinion is based on scientifically valid principles and
methodology, thereby rendering the opinion relevant and reliable.” Commonwealth v.
McGorman, 489 S.W.3d 731, 740 n.7 (Ky. 2016).
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a Daubert hearing regarding whether Trooper Hedges has sufficient experience
and training to base his opinion(s), in whole or part, on the toxicology report
(assuming the report is properly authenticated and admitted).
All other arguments we deem to be either without merit, redundant,
unlikely to recur, or to involve contested facts which a jury alone may resolve.
III. Conclusion
For the foregoing reasons, the judgment of the Campbell Circuit Court
convicting Tammy Feinauer of two counts of reckless homicide is reversed and
this case is remanded for further proceedings consistent with this Opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Wesley K. Williams Daniel Cameron
Burlington, Kentucky Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky
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