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RENDERED: OCTOBER21, 2010 TO BE PUBLISHED
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2009-SC-000352-DG
COMMONWEALTH OF KENTUCKY APPELLA
ON REVIEW FROM COURT OFAPPEALS
V. CASE NO. 2008-CA-000387-MR
BREATHITT CIRCUIT COURTNO. 05-CR-00089

ANGELLA PRATER APPELLEE
OPINIONOF THECOURTBY CHIEFJUSTICE MINTON REVERSING The Courtof Appeals vacated ajudgment convicting Angella grater of reckless homicide' for her son's death in a vehicular collision, concluding that
the trial court erred in allowing extrinsic evidence to impeach Prater on a collateral matter. Specifically, the trial court had allowed the Commonwealth to introduce extrinsic evidence to disprove Prater's assertion in direct testimony that she had undergone nasal surgery a few days before the collision and, as a result of the nasal surgery, had received prescriptions for two painkillers. Because Kentucky precedent recognizes that a trial court's decision to admit evidence despite claims of improper collateral impeachment is subject to review
' Kentucky Revised Statutes (KRS) 507.050 ("(1) A person is guilty of reckless homicide when, with recklessness he causes the death of another person.
(2) Reckless homicide is a Class Dfelony.") .
for abuse of discretion and because we discern no abuse of discretion in the
trial court's admitting the evidence under the unique facts and circumstances
presented in this case, we reverse the Court of Appeals and reinstate the
judgment of the trial court.
I. FACTS.
Prater was the driver in a single-vehicle collision in which her truck left the road and hit a tree. Eyewitness testimony indicated that Prater mayhave been traveling too fast or inattentively. But other evidence suggested that a tire came offthe truck causing it to leave the road. Prater's two-year-old son, who was a passenger in the truck at the time of the collision, died as a result of blunt-impact trauma to the head.
Soon after the accident, the Kentucky State Police laboratory tested Prater's blood for drugs and alcohol. The test results were positive for prescription painkillers Tramadol and Methadone at or below therapeutic levels. The test results were also positive for Zoloft, an antidepressant for which the laboratory did not have a standard for therapeutic levels at that time. Apparently, no alcohol or other drugs were found in her blood; and a laboratory official later testified that she could not determine whether Prater wasimpaired as a result of the prescription drugs.
Prater wasindicted and tried on a charge of reckless homicide, a Class D felony. At trial, she testified to having taken the three prescription drugs the day before the accident. She further stated that a counselor had prescribed
the Zoloft and that a doctor prescribed the painkillers following nasal surgery,
which she alleged she underwent "three or four" days before the accident.
Upon cross-examination, Prater admitted that she was uncertain aboutwhen
the nasal surgery occurred. She allowed on cross-examination that perhaps
the nasal surgery could have occurred more than the three or four days before
the accident. The Commonwealth's attorney then suggested that perhaps
Prater could have easily obtained her medical records in advance of trial to
facilitate quick verification of the precise date of the nasal surgery.
At a bench conference that followed, the Commonwealth asked the trial court for an order to obtain Prater's medical records from the nasal surgery. Prater's counsel objected, based on relevancy; questioned what the Commonwealth expected to find in the records; and informed the court that the nasal surgery actually occurred after the accident. The trial court overruled the objection and issued an order permitting the Commonwealth to obtain Prater's medical records from the doctor whom Prater identified as having performed her nasal surgery and having prescribed the two painkillers.
After thejury returned from a break, the medical records custodian and nurse of the physician whoperformed the nasal surgery testified. The custodian's review of the records revealed that the nasal surgery occurred over two years after the accident and that the physician had prescribed one
painkiller, Methadone; but he hadnot prescribed the other painkiller.
Prater later resumed the witness stand and explained that she had misremembered the nasal surgery as occurring a few days before the accident.
She testified that she had had a number of medical problems, including a head injury from the accident, andhad become confused. She testified then that she had suffered an ankle injury before the accident for which she took painkillers. Over the Commonwealth's objection to lack of authentication, the trial court permitted Prater to present evidence of records indicating that she had been seen by a doctor for an ankle injury several weeks before the accident and that she had filled prescriptions for the two painkillers at a particular pharmacy before the accident.
Upon further cross-examination, the Commonwealth attempted to cast doubt on Prater's claims that she was taking two prescription painkillers for the ankle injury by eliciting Prater's admission that there wasno radiology report for the ankle injury. This suggested, of course, that no fracture had occurred or waseven suspected. Prater also admitted that she had no direct record that a doctor had prescribed any painkillers for the ankle injury. She went on to state that she could not actually recall the medical condition for which she began taking the painkillers, and she was hesitant or unsure about identifying the name of the doctor who had prescribed them. Andwe are not aware of any request by Prater for further intervention by the trial court, such as a request for a continuance, in order to gather and present other medical records or other evidence concerning her treatment for her ankle injury or other medical conditions.2
Prater's briefpoints out that during the course of her cross-examination by the Commonwealth, she asked whether she was being tried for medical records or for
Thejury found Prater guilty of the reckless homicide charge and
recommended the maximumsentence of five years' imprisonment. The trial courtentered judgment in accordance with the jury's verdict and sentencing recommendation.
On appeal, the Court ofAppeals vacated the trial court's judgment and remanded for further proceedings on the basis that the trial court had "erred to [Prater's] substantial prejudice in allowing the Commonwealth to introduce evidence that impeached her testimony that the pain medication in her system wasthe result of prescriptions connected to nasal surgery."
The Court of Appeals determined that the reason for Prater's admitted use of the prescription drugs in her system was irrelevant to determining her guilt or innocence on the reckless homicide charge and was, thus, a collateral issue. Noting that Prater's objection on relevancy grounds was closely related to the concept of collateral impeachment and, thus, determining the collateral impeachment issue adequately preserved for review, the Court of Appeals concluded that the trial court had erroneously allowed the Commonwealth to
driving recklessly. And she also points outthat the trial court explained to her that she had testified on direct examination to undergoing nasal surgery shortlybefore the accident, that records indicated the nasal surgeryoccurred after the accident, andthat was why she was being cross-examined about her medical records. We note that this explanation for the cross-examination did not occur at a bench conference but, apparently, within the hearingofthe jury. Also, other objections were occasionally discussed by the trial court in the hearing of thejury. While our preference would be for such discussion of objections and legal issues to be outside the hearingof thejury, Prater has not asserted anyerror from such discussions before thejury; and we see no indication of anypalpable error (asdefined by Kentucky Rules of Criminal Procedure (RCr) 10.26 ) occurring as a result.
introduce evidence to impeach Prater on a collateral issue. The Court of
Appeals vacated the conviction. 3
II. ANALYSIS.
A. We Assume that the Issue ofCollateral Impeachment is Adequately Preserved.
The Commonwealth contends that the Court of Appeals erred in
determining that the issue of collateral impeachment was adequately preserved
by Prater's objection on grounds ofrelevancy. 4 Although we agree with the
Court of Appeals that the issue of collateral impeachment is closely related to
the concept of relevancy, Prater's objection on relevancy grounds did not clearly
invoke the prohibition against collateral impeachment, meaning that
We also note that the Court of Appeals rejected Prater's argument that she was entitled to a directed verdict based on insufficiency ofthe evidence and her argument that the trial court erred in not admonishing thejury that it could not consider her failure to secure the child in a safety seat to be reckless conduct. But
Prater did not file a protective cross-appeal on these issues that the Court of Appeals did not resolve in her favor. So none ofthose issues are properly before us.
The Court of Appeals took note that Prater did not explicitly raise the issue of collateral impeachment when objecting to the admission ofher medical records. Nonetheless, it concluded that the issue of collateral impeachment was adequatelypreserved by Prater's objection on relevancy. Its conclusion was based on Court of Appeals precedent that recognized that collateral impeachment issues are closely related to relevancy issues, quoting Simmons v. Small, 986 S.W.2d 452, 455 (Ky.App. 1998): "A matter is considered collateral if the matter itself is not relevant in the litigation to establish afact or consequence, i .e., not relevant for a purposeother than mere contradiction of the in-court testimony ofthe witness." (quotation marks omitted).
Since the result in this case does not change whether the issue is preserved or not, this opinion should not be construed as a definitive holding that an objectionbased on relevancy will always suffice to preserve an appellate argument that evidence was inadmissible on collateral impeachment grounds.
preservation of the collateral impeachment issue may be somewhat
questionable.
Given the imprecise preservation of the issue, the issue should arguably only be reviewed under a palpable error standard under RCr 1.0.26. But even assuming that the issue is properly preserved, we do not believe the trial court abused its discretion in admitting the evidence; and so we believe that the Court ofAppeals incorrectly determined that Prater was entitled to relief.
We certainly agree that a more specific objection on collateral impeachment would have been more effective in bringing this issue to the trial court's attention;5 but we will, nonetheless, accept for the sake of argument that the issue of collateral impeachment is adequately preserved in order to address this issue and provide guidance to the bench and bar.
B. Court of Appeals Erred in Vacating Conviction for Collateral Impeachment. This case forces us to apply the somewhat confusing rule against collateral impeachment. In fact, there is no particular rule in the Kentucky
Rules of Evidence (KRE) clearly addressing impeachment on collateral facts, matters, or issues .6 Yet, our case law continues to hold that impeachment on
Aswe recognized in West v. Commonwealth, 780 S.W.2d 600, 603 (Ky. 1989), that stating objections with specificity mayhelp prevent error by trial courts bydirecting their attention to issues that otherwise mightnot be fully considered until appeal.
SeeROBERT G. LAwsON, THEKENTucKYEviDENcELAWHANDBOOK (4th ed. 2003)4.05(3) . ("Kentucky's Evidence Rules, like the Federal Rules, saynothing specificabout impeachment on collateral facts.") .
collateral matters by extrinsic evidence is not allowed.? Despite the clear
prohibition from case authority against impeachment on collateral matters by
extrinsic evidence, we still review the trial court's decision to admit evidence
over objections of collateral impeachment under an abuse of discretion
standard of review as we explain below.
Professor Lawson notes that rules concerning collateral impeachment "are easy to describe but very difficult to apply, because of the complexity
involved in determining `collateralness. "'8 And because determinations of the collateralness are so fact-specific andgenerally not clear-cut, Kentucky precedent provides that a trial court's decision to admit impeachment evidence on a purportedly collateral matter is subject to an abuse of discretion standard: "decisions on collateralness fall within the discretion of thejudge and are reviewedfor abuse of that discretion[; and this is] no surprise since they depend so heavily on the specific facts of the case and require a careful exercise of soundjudgment in the heat of courtroom battle."9
Applying the proper abuse of discretion standard of review, we disagree with the Court ofAppeals' determination that Prater's conviction must be vacated. We hold that the trial court properly exercised its discretion to permit
See, e.g., Purcell v. Commonwealth, 149 S.W.3d 382, 397-98 (Ky. 2004) ("Although
there is no provision in the Kentucky Rules of Evidence prohibiting impeachment
on collateral facts, wehave continued to recognize that prohibition as a valid
principle of evidence.") ; Woodard v. Commonwealth, 219 S.W.3d 723, 730 (Ky.
2007) ("this would be impeachment on a collateral matter, which is allowed while
the witness is still on the stand, although not by extrinsic evidence").
LAwsON at

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