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# C ommonwealth o f Kentucky Court of Appeals

NO. 20 2 2

- CA

- 1114

- MR

ANGELA WYNN WORKMAN APPELLANT

APPEAL FROM MASON CIRCUIT COURT v. HON ORABLE STOCKTON B. WOOD , JUDGE ACTION NO

. 2 0

- CR

- 00 113

COMMO NWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING
**   **  **
BEFORE: ACREE , GOODWINE , AND JONES , JUDGE S

. JONES , JUDGE : Angel a Workman appeals from the Mason Circuit Court’s judgment following conviction at her jury trial

. T he trial court sentenc ed
Workman to a concurrent term of five ye ars ’ imp risonme n t after finding her guilty
of operating a motor vehicle under the influence of alcohol (DUI ) (fourth or- 2

-

subse quent offense with an aggrava tor) and driving on a DUI

- s uspended license (first offense)

. After a th orough review of the facts and the law, w e af fir m
. I. B ACKGROUND At approximately 11:00 p .m. o n November 11, 2019, Deputy John
F erguson o f the Mason County Sher iff ’ s Department was dispatched to the a rea of
Ma ys lick Road to follow up on a report of a motor vehicle accident. When t he
d eputy arrived, h e found a re d Mini Cooper wedged against the guardrail and facing the wr ong direction of traf fic. Deputy F erguson identified himse lf to
W orkman, who was the d river and sole occupant of the vehicle. The deputy ’ s first questions were about whether she was injured , and Workman did not initially

res pond

. Because Wo rkman was initially unresponsive and moved somewhat lethargically, Dep uty Ferguson b elieved Workman may have be en under the
influenc e of dru gs or alcohol. The d eputy ’ s belief was reinforced when W o rkman
exited the vehicle smell ing strongly of alcohol ic beverages

.

In his later testimony, Deputy Ferguson described Workman as
sway ing , stagger ing , and with bloodshot eyes. In his words, Deputy Fe r guson describe d Workman as being “ wilt ed drunk , ” like “ when you put the hot sauce on the lettuce, it wilts down, and that ’ s pretty much the demeanor that I p erceived from her that night. ” T he deputy e lected not to administer a prelimina ry breath

test , b eliev ing it was unnecessary. He also elected not to gi ve Workman the- 3

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sta ndard ized field sobriety tests 1 because he did not be lieve she was capable of
stand ing and walking wit hout injur ing herself

.

Despi te Workman ’ s pleas to just “ let her go , ” Deputy Ferguson
arrested Wo rkman for opera ting a mot or vehicle u nder the influence of al cohol and driving on a DUI

- su spended li cense . H e t ransported her to the Mason County
Deten tion Cent er for a breath test because it was the only location nearby with an Intoxi lyzer breath

- testing machine available at that ho ur of th e evening

. After beginning the requi red observation per iod, 2 t he deputy read the implied consent

wa rning form to her, asking her if she consented to a test of her breath while also warning her of th e penalties associated with refu sing to submit to the dep uty ’ s requested test . Workman refused to submit to the deputy ’ s breath test , and she did

not sign the form indicating he r refusal

. 3 However, when Workman was booked

1 The standar dized field sobriety test (SFST ) batter y cons ist s of the w alk and turn, t he one

- leg stand, and the horiz ontal ga ze nystag mus tests. SF ST training is deve loped and promu l gat ed by the National High way Traffic Safety A dminist ration (NHTSA) and th e International Association of Chiefs of Police (IACP). See N ATIONAL H IGHWAY T RAFFIC S A FETY A DMIN ISTRATION , “ DWI Detection and Standardized Field Sobriety Testing (SFST ) Refresher

– In st ructor Guide , ” (Rev

. 1 0/2015) h ttps:// www.nhtsa.gov/sites/nhts a.gov /files/documents/sfst_ig_refresher_manual.pdf ( l ast a ccessed Mar. 1, 2024).

2 “ The pr ocedures established in this section shall apply to breath alcohol tests. (1) A certified breath te st o perator shall have the person under personal observation at the location of the test for a minimum of twenty (20) minutes prior to the breath alcohol an alysis. During that period the subject sha ll not have oral or nasal intake of substances which will aff ect the test. ” 500 Kentucky Admin istrative Regulation s (KAR) 8: 030 S ection 1 , as authorized by Kentucky R evised Statu te s (KRS ) 189A .103.

3 From the r ecord, i t appears t hat Mason County does no t follow the usual practice of a sking a n arrestee to sign an implied consent form before taking the breath test. Instead, th e re is a single- 4

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into the detention cent er, she w illing ly allowed the deputy jailer to test her ur ine
for drugs as part of the intake process. Based on th is incident, t he grand jury
indicted Workman for operating a motor vehicle while driving on a DUI

suspended li cense , first offense, 4 and operating a m otor vehi cle under the in fluence of alcohol, fourth or su bse quent offense wit hin a ten

- year period, 5 aggravated by
her refusal to t ake the requested breath test. 6

On the morning of tr ial, Workman moved the court to suppress statements about her previous DUI convictions

. By stipulation with the
Comm on wealth, the trial court rule d the parties could inform the j ury that
Workman was driving on a suspended li cense at the time of this inciden t but without specif

ying the re ason for the suspension. A second is sue , not so easily
resolve d , was that Workman sign aled he r intent t o call the jailer to testify about her
submi ssion to the jailer ’ s requested urine screen
. The Commonwealth obje cted , stating the urine screen had no probative value because it did not test for alcohol.

implied consent form kept near the Intoxilyzer , and the deputies read th is form to arrestees

. Deputy Ferguson test ified that he read this form to Workman verbatim , asked t he q uestions as indicated on the form , and she refused his request f or a breath test at the end of the reading

.
4 K RS 189 A. 0 90, a Clas s B misdemeanor.

5 KRS 18 9A. 010 (5)(d), a Class D felony.

6 KRS 189A.010(11)(e). The presen ce of an aggravating circ umst ance increases the mandatory minimum term of imprisonment to two hundre d forty days , p ursuant to KRS 1 89A.010 (5)(d).- 5

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The trial court deferred ruling on the mat ter , as it had not yet seen the
document ation surrounding the urine screen
.

Workman ’ s trial took place over a single day with only a few
witnesses . First, Deputy Ferguson testified to his r ecollect ion of the incident,
consistent with the a forementioned n arrative. After the deputy testified, however,
Workman informed the trial co urt at the bench that she would be calling Lisa
Year y, the Mason County Jailer , t o testify about her submission to the uri ne screen at the jail. Again, the Commonwealth objected , stat ing that the only purpo se for that line of questioni ng is to try to refute th e contention that W orkman refused a requested test for the purpose of the DUI aggrav a tor. The Commonwealth further

a rgued t hat the jailer ’ s urine screen is taken for a diffe rent purpose than the bl ood , breath , or urine test s for DUI under KRS Cha pt er 189A. In sum, the
Commonwealth urged the trial court to disallow questions about the urine screen because they were not relevant and would only serve to confuse or mislead the j ury. For her part, Workman argued she should be able to discuss the urine scree n becaus e it was a record provide d by the Commonwealth as part of discovery. After hearing these arguments, t he trial court ruled that Workman ’ s signed form for the
urine scre en would be a dmi tted as part of the re cord ; h owever, the trial court also
ruled the d rug screen would not be prese nted t o t he jury because it had not hing to
do with Work man ’ s refusal of De puty Fergus on ’ s requested test.- 6

- Workman r an afoul of the trial cour t ’ s ruling a lmost immediately

. On
direct examin ation of Lisa Yeary, W orkman began to ask ques tions about drug testing at the jail. Th e Commonwealth objected to the question and, at the bench,

state d the jury should not have heard about the jailer screeni ng. W orkman argued
she was merely laying a foundation to introduce the urine screen by avowal . T he
Commonwealth retorted that avowals are not conducted in front of the jury. The
trial court respon ded that it appeared that Work man was trying to get the u rine screen in front of the jury “ by the back door. ”

The situation deter ior ated further , regarding the urine test issue , when
Workman took the sta nd to testify. Workman readily admitted that she should not
have be en dr iving on a suspended license. She also admitted that before driving, she had helped a friend consume a bottle of wine on an empty stomach. W h en asked about wh y she did not su bmit to the breath test, she claimed she told Deputy Ferg uson that she could not physically take a breath test bec ause she suffered from
COPD 7 and emphys ema
. Then she quic kly added , “ And on there [the form] there was something about urine , and I took a urine test. ” Sh e repeated the reference a

7 “ Chronic obstructive pulmonary d isease, or COPD, refers to a group of disea ses that cause airflow blockage and breathing

- related pro blem s. It includes emphysema and chronic bronchitis. ” C EN TERS FOR D ISEA SE C ONTROL AND P REVENTION , “ Chronic Obstructive Pulmonary Disease (COPD) , ” https:// www.cdc.gov/copd/index.html (last ac ces s ed Mar . 1, 20 2 4).- 7

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moment later whe n asked about jail per sonnel , s aying , “ [The jailer] was a round when I had to pee in a cup. ”

Th e multiple successive references to the disallowed topic of the urine

screen drew yet an other object ion from the Commonwealth. At the ensu ing bench

con ference, the Commonwealth said that Workman was repeatedly att empt ing to
circumvent the trial court ’ s ruling. Workman ’ s counsel , in turn, claim ed he did not attempt to elicit this testimony from Workman. The Commonwealth expressed skeptic ism of this claim. This prom pted the following ex change at the bench:

Commonwealt h : Has [Workman] opened the door on her four prior refusals? I think she has.
Defense: In what way?
Commo nwealth: That she can ’ t take a test

. . . . She knows the difference between the tests.
The trial court then ruled that, based on Workman ’ s test imony, she had opened the door to questions on introductions of her prior refus als and knowing the difference
between the test s given. Workman then moved f or a mistrial, which the trial court
d enied

. When defense counsel resume d direct examination of W orkman, she immediately began by re iterat ing , “ I was offered a urine test. ” Apparently

c hastened by the recent bench conference, Workman ’ s counsel finally attempt ed to guide her away from that top ic . Workman admitted that she had drunk alcohol but- 8

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denied that she was intoxicated. She stated that the incident made her feel catatonic, scared, humiliat ed, and disappointed . Regard ing her refusal to take the
brea th test, she admitted that Deputy F ergus on asked her multiple times to t ake it, and she refused, s aying she could not do it, but she then at t empted to argue that the
form s aid “ bloo d, urine, or breath. ” On cross

- examination, Workman made a number of damaging admissions, including that she had i ssues with alcohol, that
she had asked Deputy Ferguson to let her walk away inst ead of arresting her, that Deputy Ferguson had request ed a breath test, and that she u nderstood the

conse q uences o f refusing the breath test

. The Commonwealth then asked
W or km an about whe ther she had refused breath tests on previous occasions

. Workman ’ s counsel objected to the question, and the trial court overruled the objection, direct ing Workman to answer. Workman then admitted she had refused
breath tes ts on previous occa sions.

Upon th e subm i ssion of all evidence , the ju ry del ibe rated a nd found
Work man guilty of operating a motor vehicle under the influence of alcohol ( fo urth or subsequent offense with a ggravating circumstances ) and driving on a
DUI

- s uspended license (fir st off ense) . The jury th ereafter recommended a total

ter m of five years ’ imprison ment , and t he trial court se ntenced Workman in
accordance with the jury ’ s reco mmendation

. T hi s appea l followed.- 9

- II. A NAL Y SIS For h er primary issue on appeal, Wo r kman contends the trial court
committed reversible error when it allowe d the jury to hear testimony regarding
her prior DUI arrests. Like other evidentiary issues, we re view such decisions for
abuse of discretion. “ [T] he trial court has discretion to determine whethe r or not to permit impeachment on collateral issues when a party has opened the door to such issues by raising them in direct testimony. ” Commonwealth v. Prater , 324 S.W.3d 393, 399 (Ky. 2010)

. The admissibility question here revolves around whether
Work m an “ opened the door ” to th e questions about her previous DUIs.

As for “opening the door,” the trial court presumably was referring to the doctrine of “curative admissibility,” i.e. , when one party introduces improper evidence, such “opens the door” for th e other party to introduce improper evidence in rebuttal w hose only claim to admission is that it explains or rebuts the prior inadmissible evidence. Metcalf v. Commonwealth , 158 S.W.3d 740, 746 (Ky. 2005) ( citations omitted)

. “Generally stated, ‘opening the door’ to otherwise inadmissible evidence is a form
of waiver that happens when one party’s use of inadmissible evidence justifies the opposing party’s rebuttal of that evidence with equally inadmissible proof.” Fairley v. Commonwealth , 527 S.W.3d 792 , 802 (Ky. 2017) (quoting
Commonwealth v. Stone , 291 S.W.3 d 696, 701

- 02 (Ky. 2009) )

.- 10

- The main thrust of Workman ’ s appeal on this issue is that a recent Supreme Court case, Hemphill v. New York , 595 U.S. 140, 142 S. C t. 6 81 , 211 L.
Ed. 2d 534 ( 2022) , “ cast serious doubt on the continued viability of the ‘ opening of
the door ’ doctrine[.] ” (Appellant ’ s Br ief at 13.) We disagree as to the applicability of Hem

phill to th is case

. Hemphill involved the admission of a third party ’ s plea al locution to correct a d ef endant ’ s allegedly misleading statement at
trial. Id

. , 595 U.S. at 151 , 142 S. Ct. at 691 . The Sup reme Court held that this

“ admission o f unconfronted t e stimon i al hearsay ” violated the Confrontation Clause
of the Sixth Amendment of the United States C onstitution. Id

. , 5 95 U .S. at 1 56 , 142 S. Ct. 694

. Despite Workman ’ s conte ntion that this c ase implicates a similar
violation of the Con frontation Clause , requir ing reversal , the t wo cases are factually diss imilar. Workman hers elf was on the stand under cross
- examin ation by the Commo nweal th w hen asked about her previous breath tes ts . T here was no

“ uncon fronted testimonial hearsay ” as in Hemphill , and the C onfron tation Clause was not implicated by Workman ’ s questioning. See Fisher v. Commonwealth , 620
S

. W.3d 1, 5 (Ky. 2021) ( “ The Confront ation Clause applies only to testimonial hearsay statemen ts. ” ).

A s a seconda ry related i ssue , Wo rkman contends the trial court erroneously failed to grant her motion for a mistria l, arguing the qu estions about her previ ous DUI experiences should not have been asked in front of the jury

.- 11

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Although, “ t he decision to grant a mistrial is within the sound discretion of the trial

court [,] ” Commonwealth v. Padgett , 56 3 S.W.3d 639, 6 47 (Ky. 2018), “a mistrial
is an extreme remed y and should be resorted to only whe n there is a fundamental defect in the proceedings and th ere is a ‘ manifest necessity for such an action.’ ” Id

. at 645 (qu oting Woo dard v. Commonwealth , 147 S.W.3d 63, 68 (Ky. 200 4) (emphasis a dded in Padgett ) )

.

Altho u gh Workman is correc t that questions abou t prior DUI

e ncou nters are not normally admissible du ring the Commonwealth ’ s case
- in

- chief ,

see , e. g. , Dedic v. Commonwealth , 920 S.W.2d 878 (Ky. 1996), here the trial court
did not abuse its discretion in its de cis ion to admit those questions in order to

counter Workman ’ s in admissible references to the jail er ’ s urine screen
. On multiple occasions before the bench, t he Commonwealth a stutely ar gued that this line of questioning was not only irre levant but would be li kely to confuse or mislead the ju ry , and the trial co urt conse quently ruled such references we re in admissible

. I t was Deputy Ferguson ’ s request fo r a breath test which controlled
under KRS 189 A.103, and Wo rkman ’ s preference for the jailer ’ s urine test was not operative here. Commonwealth v. Duncan , 483 S.W.3d 353, 356

- 57 (Ky. 2015)

.

Despite th e trial court ’ s ruling , Wo rkman frequently and grat u itously
inserted the fact that she took a urine test in an apparent attempt to persuade the jury that she did not refuse the only requested test wh ich matter ed

– Deputy- 12

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Ferguson ’ s breath test

. In response , th e trial court allowed the C ommonwealth to inquire into Workman ’ s previous experiences with breath t ests to illustrate that she knew which tests were required of her , under the doctrine of curative admissibility.
Wo rkman ’ s motion for mistrial was ground ed in the trial court ’ s admiss ion of

nor mally inadmissible testimony , but she ignore s that the trial court allowed the testimony as a response to her own improp er conduct. We disc ern no manifest

nec essity for a mistrial and no abuse of discretion in the t rial court ’ s de cision to deny Workman ’ s motion

. III. C ONCLUSION

For t he foregoing reasons, we affirm the trial c ourt ’s j udgm ent

.

ALL CONCUR.

BRIEF FO R APPEL LANT:
Michael J. Cur tis A shland , Kentucky B RIEF FOR APPELLEE:
Daniel Cameron Attorney Gener al of Ke ntuc ky
Melissa A. Pile Assistant Attorney G en eral Fran kfort , Kentuc ky