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Iraola-Lovaco v. Commonwealth

Supreme Court of Kentucky

October 31, 2019



          COUNSEL FOR APPELLANT: Aaron Reed Baker Assistant Public Advocate Department of Public Advocacy

          COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky Courtney J. High tower Assistant Attorney General



         Asiel Iraola-Lovaco was convicted of three counts of Assault in the Second Degree and one count of DUI First Offense. He entered a guilty plea to one count of misdemeanor Leaving the Scene of an Accident. Iraola-Lovaco now appeals as a matter of right[1] from the Fayette Circuit Court's final judgment imposing the jury's recommended sentence of twenty years' imprisonment. After extensive review of the record and applicable case law, we hold that no palpable error resulted from the arresting officer's testimony referring to the field sobriety investigative procedures he administered as "tests" and stating that Iraola-Lovaco "failed" them. Furthermore, the trial court properly denied Iraola-Lovaco's motion for a jury instruction on the lesser-included offense of Assault in the Fourth Degree. Accordingly, we affirm.

         I. Factual and Procedural Background.

         On December 27, 2015, at approximately 11 p.m., Iraola-Lovaco was speeding and drove up on the curb of Winchester Road in Lexington, progressed down the sidewalk, and struck three individuals with his vehicle. Then Iraola-Lovaco's vehicle struck a utility pole. Iraola-Lovaco drove away from the scene. Shortly thereafter, Officer Bellamy of the Lexington Police Department responded to a call of a vehicle blocking traffic and found Iraola-Lovaco sitting in the driver's seat of his car with the engine running. No one else was in the car with him. The vehicle's front end was smashed in and blood and vomit covered the windshield. Off. Bellamy asked Iraola-Lovaco if he was ok and Iraola-Lovaco responded that he was, and that he had struck a utility pole. Off. Bellamy smelled alcohol on Iraola-Lovaco's breath and observed that his eyes were bloodshot and watery. Off. Bellamy read Iraola-Lovaco his Miranda rights before administering five field sobriety tests ("FSTs"); Iraola-Lovaco failed four of them and was placed under arrest. Iraola-Lovaco stated that he only had one beer and did not think he had hit any people. All three victims were transported to the hospital. Two of them lost a leg and all required extensive medical treatment.

         Off. Bellamy transported Iraola-Lovaco to the Emergency Room for a blood draw. His blood was drawn at approximately 1:48 a.m. on December 28, 2015 and his blood alcohol content ("BAC") was 0.078. Calculating back from that time, evidence was presented at trial that Iraola-Lovaco's BAC at the time of the crash approximately two hours earlier was between 0.105-0.116.

         A jury convicted Iraola-Lovaco of three counts of Second-Degree Assault and DUI First Offense. The jury hung on the charge of Leaving the Scene of an Accident and the parties negotiated a plea agreement for a misdemeanor on that charge. The jury recommended a sentence of twenty years' imprisonment, which the trial court imposed. This appeal followed.

         II. Analysis.

         On appeal, Iraola-Lovaco raises two claims of error, only one of which he preserved below. We do not find merit in either claim.

         a. No Palpable Error Resulted from Officer Bellamy's Testimony About the Field Sobriety "Tests" He Conducted.

         Iraola-Lovaco asserts that Off. Bellamy's description of the field sobriety events as "tests" and that Iraola-Lovaco "failed the tests" improperly lent the investigative procedures the gravitas of scientific weight for which no scientific opinion foundation was laid, and therefore should not have been admitted under KRE[2] 702.[3] In other words, Iraola-Lovaco claims that use of the terms "test," "pass" and "fail" lent Off. Bellamy's lay witness testimony an "aura of scientific validity" implying reliability and transforming the testimony into expert witness testimony. Notably, Iraola-Lovaco does not assert that Off. Bellamy was not qualified to conduct the FSTs or that the proper procedures were not employed. Nor does he dispute that Off. Bellamy's testimony about his observations of Iraola-Lovaco was properly admitted. Rather, Iraola- Lovaco's sole claim of error pertains to the nomenclature used by Off. Bellamy to describe the field sobriety events. Because Iraola-Lovaco did not seek to exclude this testimony at trial, or object to its introduction, his claimed error is unpreserved and we will review it for palpable error only under RCr[4] 10.26 which provides:

A palpable error which affects the substantial rights of a parry may be considered ... by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.

         "'Manifest injustice' is 'error [that] so seriously affect[s] the fairness, integrity, or public reputation of the proceeding as to be 'shocking or jurisprudentially intolerable.'" Davidson v. Commonwealth, 548 S.W.3d 255, 261 (Ky. 2018) (quoting Miller v. Commonwealth, 283 S.W.3d 690, 695 (Ky. 2009)).

         Iraola-Lovaco contends that the palpable error standard is met since this case was a "close call" in terms of intoxication and Off. Bellamy's testimony was crucial in establishing that Iraola-Lovaco was intoxicated. Iraola-Lovaco emphasizes that the Commonwealth did not proceed under a DUI per se theory (when the accused's blood or breath-alcohol concentration was 0.08 or higher), [5] but rather under an impairment theory. During his testimony, Off. Bellamy conceded that Iraola-Lovaco was not "falling down drunk" and that he was looking for "little things" to determine intoxication. As a result, Iraola-Lovaco maintains that allowing Off. Bellamy to use such words as "test," "pass," and "fail" to describe the field sobriety events amounts to palpable error.

         Kentucky law is clear that evidence of FSTs is admissible and that officers observing a defendant's driving and physical condition may offer ...

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