EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, August 17, 2009

Another Habit Like An Unwanted Friend: Court Of Appeals Of Kentucky Affirms Trial Court's Habit Ruling

Like its federal counterpartKentucky Rule of Evidence 406 provides that

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

Examples of admissible evidence under this Rule 

include going down a particular stairway two stairs at a time, giving the hand signal for a left turn, alighting from railway cars while they are still moving,...reacting with extreme violence to any contact with a uniformed police officer,...and placing a gun in your belt every morning. United States v. Morris, 2008 WL 382859 at **4.

The type of habit evidence found admissible by the Court of Appeals of Kentucky in its recent opinion in Gaines v. Commonwealth, 2009 WL 2475299 (Ky.App. 2009), was most similar to this last example.

In Gaines, store owners believed that McClellan Gaines and Vivian Leigh tried to make purchases at their store with counterfeit money, wrote down their license plate number, and called he police. Officers later stopped the vehicle with that license plate number, searched Gaines, uncovered marijuana, and searched the vehicle, uncovering a backpack filled with counterfeit money, men's clothing, and documents with Gaines' name on them. Bizarrely, however, "[t]he backpack, some of the papers, and clothing were not kept as evidence, nor were pictures taken."

This made it difficult for the State to prove that Gaines was guilty of criminal possession of a forged instrument at his ensuing trial. The arresting officers did testify that Gaines admitted that the backpack was his, but this might not have been enough to convict Gaines by itself. This was where the testimony of Gaines' ex-girlfriend came into play.

According to Gaines' ex-girlfriend, Rebecca Hicks, "in the three months they dated, [Gaines] always carried a backpack with him. Also, she testified that in the backpack [Gaines] would keep a change of clothing and any important papers he might need." After Gaines was convicted, he appealed, claiming, inter alia, that Hicks' testimony was improperly received, but the Court of Appeals of Kentucky found that it was properly admitted as habit evidence under Kentucky Rule of Evidence 406 and that it was "supportive of the testimony of the police officers that in addition to the counterfeit money, papers containing Appellant's name and men's clothing were also found in the backpack and indicative of his ownership."



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