*1 PARSON, Wayne Appellant, Michael KENTUCKY, OF
COMMONWEALTH
Appellee.
No. 2002-SC-0103-MR. Kentucky.
Supreme Court of 17, 2004.
June Rehearing
As Modified on Denial of
Oct. *3 Hackett, Appellate De- Deputy
Bruсe P. District, Louisville, fender Jefferson Appellant. Counsel for General, Stumbo, Attorney Gregory D. Attorney Shepherd, Dennis Office W. Division, General, Appellate Criminal Frankfort, Appellee. Counsel Opinion of the Court Justice COOPER. May a motor vehicle owned
On Wayne by Appellant, Michael operated Parson, high- the center line of crossed Kentucky, and way County, in Jefferson operated by a vehicle owned and struck Eberle, injuring damaging her and Lisa 2nd, 4th, 3rd, Appellant her automobile. transport- assault DUI OSL/DUI ed University Hospital years for criminal where test and fifteen mischief 1st. 532.080(6)(b). jury blood revealed an alcohol concentration KRS then recom- grams per 0.288 deciliter and a test of mended that all of the enhanced sentences his urine presence concurrently revealed the of an un- be served for a total of twen- quantified amount of cocaine ty years, again aggregate and cannabi- the maximum (marijuana). noids sentence allowable under KRS 532.110(l)(c). Appellant appeals to this subsequently convicted right. Ky. Court as a matter of Const. Jefferson Circuit Court assault 110(2)(b). § *4 (wanton) (“assault degree the second 2nd”), 508.020(l)(c) felony, a Class C- KRS QUALIFICATION I. JUROR FORMS. (2); and operating a motor vehicle while Section 7 of Part of the Admin II (fourth under the influence of intoxicants of of offense) (“DUI istrative Procedures the Court Jus 4th”), D felony, a Class (“Ad.Proc.”) requires pro tice that each 189A.010(1) (5)(d); operating KRS and a juror juror fill spective qualification out a motor vehicle while license is revoked or form devised the Administrative Office (third offense) suspended for DUI of the and submit it to the clerk (“OSL/DUI Courts 3rd”), felony, D a Class KRS days receipt juror of of within five 189A.090(1) (2)(c); and criminal in mischief 7(7) II, Part summons. Section further (“criminal 1st”), degree the first mischief a provides: 512.020; D felony, Class KRS no motor (“no insurance”), liability vehicle insurance juror qualification The contents of the 304.39-080(5), misdemeanor, KRS a KRS forms made available to the shall be trial 304.99-060(l)(a); expired reg- and vehicle judge parties attorneys and to or their istration, 186.170(1), violation, KRS KRS judge of record unless the chief circuit 186.990(1). in designee any or determines instance justice in the interest of the infor- jury initially The Appellant sentenced or kept mation shall be confidential its imprisonment years for ten for assault 2nd part. use limited in whole or 4th, years and five each for DUI OSL/DUI 3rd, 1st, and criminal questionnaire. mischief fines The form is addition $1,000 i.e., data, name, address, identifying for no insurance and $100 birth, status, expired registration. jury vehicle marital place The rec- date and questionnaire ommended that the sentences for con- employment, assault also 2nd, designed DUI 4th and 3rd served to determine inquiries tains OSL/DUI consecutively juror legally and the sentence for criminal the prospective whether concurrently disqualified jury mischief 1st be served for a service for Proc., II, twenty years, total of maximum Part aggre- the reasons set forth Ad. § gate Finally, questions pertain- sentence allowable under KRS contains 532.110(l)(c). Commonwealth, Young ing juror’s experience v. to the with the court (1998); Ky., Hendley juror 675 has system, e.g., S.W.2d whether the ever party v. to a lawsuit or been a defen- S.W.2d been (1978). However, dant, witness, jury in a criminal complainant because the II, very language also found of Part Sec- persistent to be case. The 7(7) (“PFO felony degree offender the first tion clarifies that a criminal defendant 1st”), 532.080(3), inspect KRS it recommended en- not an does have absolute twenty years completed hanced sentences of each for forms. ju- twelve, plus two alternate juryA
Thrice, approved a local this Court has re- rors, and the sworn and seated Court that rule of the Jefferson Circuit Four jurors excused. mainder of the were access to a criminal defendant denies court ad- then testified before witnesses on that jurors who serve addresses following day. On journed for v. Thompkins case. Common- defendant’s a mis- demanded defense counsel (2001); morning, wealth, 147, 151 Ky., 54 S.W.3d full had a that he had now claiming Commonwealth, Ky., 990 Cornelison juror quali- all 248 to examine opportunity (1999); Samples Com- S.W.2d have that he would fication forms and monwealth, 151, 152-53 Ky., 983 S.W.2d jurors than he actual- four different struck (1998), grounds on other overruled prema- forced to ly struck had he been Commonwealth, Ky., 53 S.W.3d Lawson v. per- of his turely complete the exercise Accordingly, instead of he jurors he claims emptory strikes. larger original forms with the copying the No. would have struck were Juror out, ad- pool blacked addresses missing; form was Juror original whose smaller, typewritten ministrators create a sign failed his form No. who (thus all of fully legible) cоntaining form *5 who, therefore, irresponsible; was deemed juror except the provided the data the 491, night shift No. who worked Juror juror’s juror’s and answers to address (information type- to the not transferred questions regarding legal qualifica- form); No. who written and Juror tions. privacy” margin in the wrote “invasion of dire, de- Prior to voir defense counsel marital about his inquiries next to the original qualification to manded see fur- occupation (though and he did status jurors for forms submitted selected information). requested nish the case, panel suggesting in this that the qua “sine It voir dire that is the is jury pool may administrators have inaccu- impartial fair and seating non to the of a rately transferred information from the Commonwealth, Ky., McCarthy v. jury.” In- original typewritten form the form. (1993), overruled 867 S.W.2d stead, fur- pool administrators by Lawson v. Common grounds other jurors nished the forms for all of the 248 wealth, the extent that supra, at 544. To for that month— impaneled who had been informa juror forms contain qualification one, origi- whose except Juror No. juror’s subjects other than tion related or mis- apparently nal form had been lost expe purpose its legal qualifications, placed. approximately Voir dire lasted by eliminating process the voir dire dite Appellant and does not claim two hours every juror. routinely questions asked counsel’s voir dire was re- that defense original form No. any forty-eight fashion. After Juror whose stricted obviously submitted a missing, had deliberating peremptory minutes of over was strikes, presumably the dаta she prompting by after form because and some from the had been transferred provided submitted his judge, defense counsel form. list, typewritten form to the complaining original that he peremptory strike on the all could have made record enough Appellant time to examine had not had that by asking she accuracy question Examina- juror qualification forms. to whether questioned re- chambers as peremptory tion of the strike sheets was typewritten form defense information on the prosecutor vealed that and not to incomplete. He chose three had both struck the same inaccurate counsel No. 28117 was so. The fact that Juror jurors. do president company proximately of a medical staff one hour after the accident leaves skeptical Appellant us that positive would unquantified was for amounts of have peremptory against exercised a strike marijuana. Appellant cocaine made a solely him on grounds that he was “irre- motion in limine suppress expected tes- sponsible.” that Appellant We note did timony from George Rodgers, Dr. a toxi- not claim entitlement to a mistrial on cologist, testifying night “on the grounds jurors, that three additional Nos. accident, appellant’s a test of urine he whom failed to marijuana.” revealed traces of cocaine and also, peremptorily fully strike did not com- fact, prior to Dr. Rodgers’s testimony, plete original their forms. Juror No. 491 Kummer, Alberta a mеdical technician em- request did not excusal from jury service ployed hospital, at the testified without because she worked at If night. objection that she the person was who workers, desired to night-shift excuse he Appellant’s tested samples blood urine could have inquired during voir dire positive and that the urine screen was whether prospective jurors were so marijuana. cocaine and Also without ob- employed. might He have learned that jection, printout Kummer introduced a many Juror No. like persons public results, her test which is found in the employment, had been excused from work record as It Commonwealth’s Exhibit 8. performing jury while service. When the presented was this exhibit to Dr. raised, issue judge the trial noted and Rodgers him of the test results. inform no disagreed one ap- Juror No. 491 Thus, there was no violation of the motion peared highly attentive and exhibited no in limine. *6 signs of being sleep-deprived. tired or Dr. Rodgers testified that of mar- traces respect With Appel- Juror No. ijuana body can remain in the for weeks truly lant juror concerned whether ingestion after that but traces of cocaine considered an inquiry into marital status will disappear twenty-four within hours. occupation privacy, an invasion of he say twenty-four He in could not when the could inquired during have so voir dire. period Appellant ingested hour had the note in passing We that defense counsel cocaine but admitted that he also could not prosecutor’s refused the offer to have Ju- say Appellant ingested that had not ror No. ju- 23788 excused anas alternate immediately prior operating cocaine his ror. And, in although vehicle. he testified de- The bottom line on this is that it issue tail to the effects of a blood alcohol concen- would not have been an abuse of discretion grams per tration of 0.238 deciliter on the for the trial court Appellant to have denied judgment person motor skills and of a with and his original counsel access to the system, that amount of in alcohol he they jurors’ forms since contained the did not know what additional effect would so, home being addresses. That the trial result from a mixture of alcohol and co- court could not have abused its discretion caine. not Appellant did move strike in limiting the time for defense counsel to Rodgers’s testimony either Kummer’s or peruse the forms for that might evidence an to the but moved for admonition have prompted perempto- the exercise of a marijuana disregard evidence of all ry strike. and cocaine as The motion irrelevant. denied.
II. URINALYSIS RESULTS. A sample upheld screen of urine taken We the admission of almost iden- Estep v. Common- Appellant University Hospital from at in ap- tical evidence both (1997), wealth, its value was Ky., probative 957 S.W.2d missible unless 193-94 Commonwealth, Ky., substantially outweighed by prejudicial v. its and Bush (1992). 550, 555 an issue com- State KRE 403. This is S.W.2d effect. McClain, (Fla.1988), 525 So.2d Su- mitted to the sound discretion preme of Florida that even English, Court held court. Commonwealth v. system amount of cocaine in the trace We conclude 993 S.W.2d person charged with homicide vehicular its discre- that the trial court did not abuse 421; relevance, some would have id. admitting in tion evidence.
agreed a district with conclusion of III. CHAIN CUSTODY. Weitz, OF appeals
court of State (Fla.Dist.Ct.App.1986), So.2d that she Christine Kerr testified simply such evidence is inadmissible samples Appellant’s blood collected toxicologist because a cannot estimate the in the at Uni emergency and urine room impairment pres- its degree caused question, versity Hospital night McClain, swpra, ence. at 423. Neverthe- handed the to a medical samples that she less, held that McClain the trial court did samples with technician who labeled the not abuse its discretion suppressing to an Appellant’s name and handed them 90.403, § Fla. evidence under Stat. Ann. delivery to the other medical technician for equivalent Florida’s KRE 403. Id. at laboratory, hall hospital located down the emergency Kummer testi room. samples fied that were delivered Here, admitted trial court her, they Appel were labeled with McClain, Like the the evidence. court in name, lant’s tested the blood she person we believe that that a evidence sample presence for the of alcohol and the vehicular charged with homicide intox had sample presence urine for the of various system in his icating drugs when the homi marijuana. drugs, including cocaine and cide occurred is relevant to the issue оf claims that the Commonwealth even wantonness without additional evi custody be prove failed to chain of degree dence of the of impairment caused *7 testimony produce it did not the cause by KRE presence. its 402. person samples the the either who labeled evidence, single An item of a being but to the person who delivered them or the proof, in prove link the chain of need not laboratory. disagree. We conclusively proposition it for which unnecessary perfect is a [I]t establish offered. It need is not even make custody possi- or all chain of to eliminate proposition appear probable than more misidentification, bility tampering enough not.... It is could the item long as there evidence persuasive so is reasonably slightly show that a fact is is that probability reasonable probable appear more than it would in any has the evidence not been altered without that after the evidence. Even respect. material spent, force of is probative the evidence proposition for offered which Commonwealth, Ky., 973 Rabovsky v. quite improbable. still can seem omitted). (1998) 6, (quotation S.W.2d Lawson, Ky., Kentucky Evi- also Love v. Robert G. The See (4th 2.05[3], 816, § of- dence Law Handbook at 80 The evidence S.W.3d 2003) ed., by proved W. Kerr and a rea- (quoting LEXIS Edward fered Kummer and Cleary, probability McCormick Evidence 542-43 sonable the blood on (3d ed.1984)). by samples thus ad- to and tested evidence was urine delivered
Kummer were the samples
judge. Appellant
collected from
and his counsel were
Appellant,
samples
and that the
had not
present and counsel was afforded and ex-
any
been
in
respect
altered
material
dur-
right
ercised the
In
cross-examination.
ing
emergency
the short transit from the
addition to testifying to the nature and
room
laboratory.
to the
injuries
extent of the victim’s
and his
thereof,
treatment
Nichol stated under
IV. WITNESS DEPOSITION.
arrangements
oath that he had made
to be
doctors,
Three medical
Drs. Peter Lati-
during
Minnesota
the Christmas holi-
no,
Zhou,
David
George Rodgers,
days
22 through January
from December
a
physical therapist,
licensed
Timothy Ni- 2,
company
and in
meeting
Nevada
chol, testified for the Commonwealth. The
January
through January
7. At the
first
August
scheduled trial date was
deposition,
conclusion of the
defense coun-
trial,
2001.
morning
On the
Appellant
subpoena
ap-
sel served Nichol with a
requested and was
granted
continuance
pear
January
at trial
person
on
granted
after the trial court
the Common-
20, 2001,
hearing
At a
on
December
wealth’s motion to amend the indictment.
regular
judge quashed
subpoena
trial
morning
On the
of the second scheduled
testimony
presented to
and Niehol’s
date,
November
videotaped
the form of the
again requested
granted
and was
a contin-
deposition.
uance, this time because defense counsel’s
investigator,
might
who
called
as wit-
The Confrontation Clause
(the
ness,
ill
investigator
did not testi-
States
Sixth Amendment of
United
fy
held),
when the
finally
trial was
guarantees
Constitution
a criminal defen
because
might possibly
defense counsel
dant
right
to confront his accusers
problem
have a medical
as
pros-
well. The
Green,
trial.
399 U.S.
California
objected
ecutor
grounds
that this was
1930, 1934-35,
90 S.Ct.
783
528,
522,
v.
Gagnon,
470
105 S.Ct.
right
implicated,
confrontation is
U.S.
Fugate
1482,
(1985),
1485,
is an
that the
requirement
there
additional
tor’s assertion at December hearing, mere absence of the witness Likewise, a criminal defendant jurisdiction does not constitute may right of con waive constitutional 7.10(1) “unavailability,” RCr Allen, cannot be 337, Illinois v. frontation. 397 U.S. interpreted. Brumley Wingard, v. so 269 1060-61, 342-43, 1057, 25 L.Ed.2d 90 S.Ct. (6th Cir.2001) 629, (construing F.Bd 640 Commonwealth, v. (1970); Richmond 353 15(F), R. a rule almost identi Ohio Crim. (1982); Bonar v. 642, Ky., 646 637 S.W.2d 7.10). to RCr Nichol Obviously, cal was 338, Ky. 202 S.W. 180 not “unavailable” constitutional 676, Appellant clearly 679 waived sense.1 when right his to confront Nichol trial counsel, Appellant’s acquies defense with
However, even “the most basic
cence,
medi
agreed
testimony
rights
subject
of criminal
are
defendants
presented by depo
cal witnesses could be
Hill,
to waiver.” New York v.
528 U.S.
Richmond, supra, at 644
(waiver
sition.
110, 114,
659, 663,
120 S.Ct.
145 L.Ed.2d
have
defendant]
counsel:
could
“[The
(2000) (internal
omitted).
g.,
E
quote
560
attorney
cho
[present]
been
had so
trial,
v. Wingo,
Barker
right
speedy
sen.”).
uniformly
Federal
have
courts
529,
514,
2182, 2191,
407 U.S.
92 S.Ct.
83
held that counsel can waive a criminal
(1972), Dunaway
v. Common
L.Ed.2d 101
right of
defendant’s Sixth Amendment
wealth, Ky.,
563,
(2001);
60 S.W.3d
571
long
Confrontation “so
as
defendant
trial,
Levine v. United
right
to a public
attorney’s
does not dissent from his
deci
States,
610, 619,
1038,
362 U.S.
80 S.Ct.
sion,
long
it can be
that the
and so
as
said
1044,
(1960);
4
right
L.Ed.2d 989
to a trial
attorney’s
legitimate
decision
trial
by jury, Adams v. United States
rel.
ex
part
strategy.”
tactic
prudent
McCann,
236,
317 U.S.
63 S.Ct.
Reveles,
v.
678,
United States
190
683
F.3d
240,
v.
(1942),
Short
Com
[defendant]
decision”);
Gray,
his
taking
counsel’s
Wilson v.
action to his detriment
in reli-
n
(“[T]he
(9th Cir.1965)
282,
offer,
345
286
on
agreement
F.2d
anee
the
then the
may
right
binding
accused
his
ex-
waive
to cross
becomes
and enforceable.
amination and confrontation
the
and...
Ky.,
Reyes,
Commonwealth v.
764 S.W.2d
right may
accomplished
waiver of this
be
(1989)
added)
(emphasis
(quota-
64-65
by the accusеd’s counsel as a matter of
omitted).
tion
strategy.”);
tactics
Cruzado v. When, however, the defendant detrimen-
Rico,
(1st
Puerto
210 F.2d
Cir.
tally
government’s promise,
relies on the
1954) (“[WJhere an accused is represented
resulting
the
harm
this
from
induced
counsel,
by
counsel,
why
we do not see
in
implicates
guaran-
process
reliance
due
behalf,
presence
may
and on his
not
estoppel principle
This basic
tees.
make an effective waiver of
of
[the
by
in
recognized
the Court
Santobello
confrontation].”).2 Here, defense counsel
York,
v.
[Santobello New
U.S.
agreed
deposition
to
in
the
either
ex-
(1971)];
Application principle contractual Scotland, Virgin Gov’t Islands v. F.2d estoppel applied agreements has been (3rd Cir.1980). 360, 365 prosecutor between and defendant cases, course, involved situa- These criminal case. sought government tions where the It seems obvious that state agreement welsh its a criminal after makes a to an promise accused and the defendant had acted in detrimental reli- accused no takes action reliance on thereon, process implicating ance thus due promise, may the state withdraw Nevertheless, considerations. we have agreement offer. No has been reached. may held that criminal defendant nothing prose- There is enforce. The by advantage claiming tactical obtain a equal cutor’s to withdraw is to his his attorney lack of confrontation after right to withhold an offer. initially attended a witness’s court-ordered voluntarily departed prior but
deposition
However,
if the offer is
made
to its conclusion. Carter
Common-
wealth,
prosecution
accepted
Ky.,
ac-
599-600
S.W.2d
dissent,
Commonwealth,
Contrary
to the assertion in the
dissent’s reliance on Dean v.
Sowders,
(6th
post,
(1989),
Ky.,
Carter v.
785
overruled,
trial,
testimony at
monwealth of Nichol’s
(1989),
Nor-
grounds by
on other
Cоmmonwealth,
750,
Re-
another continuance.
Ky.,
yet
37 S.W.3d
or to obtain
v.
ton
(2001),
on
in det-
granted
habeas
other
acted
gardless,
753
the Commonwealth
Sowders,
(1)
grounds by
supra, note
by
Carter v.
the agreement
rimental
on
reliance
(defendant
de-
personally
2
did not
attend
key
a trial date on which
agreeing to
prove
(2)
and
did not
he had
position
evidence
mak-
present,
not be
witness could
thereof,
could
actual notice
thus he
not
deposition
ing keya
available for a
witness
confrontation).
have
to
waived
deemed
not
ob-
could
have been
otherwise
(defen-
Estep,
at 193
See also
957 S.W.2d
of
principles
conclude that
tained. We
appeal
not
on
use of
complain
dant could
pre-
fairness
estoppel
fundamental
deposition
agreed
she
videotaped
where
denial of
claiming
from
Appellant
clude
that expert’s deposition
to trial
could
prior
cir-
under these
of confrontation
evidence).
Couch,
v.
People
as
be used
Cf.
cumstances.
220,
1053,
Cal.Rptr.2d
Cal.App.4th
56
(defendant
(1996)
estopped from
221-22
Furthermore,
deposi
the
because
challenging
appeal
on
to which he
sentence
videotaped
tion was
courtroom with
the
agreed
plea bargain); State v.
had
Cros-
box,
the
in the
the
witness
witness
(La.1976) (defen-
by, 338 So.2d
the
“weigh
was
the demeanor of
able to
agreement to concede venue in ex-
dants’
setting.
in a courtroom
Barber
witness”
change
prosecutor’s agreement
for
nоt to
Nor
Page, supra, at
(13) pain by headaches and caused neck “Physical injury” means substantial May assault.
physical or vehicular He in- pain any impairment of jected condition; anti-inflammatory physical medications into prescribed
her neck and oral anti-inflam- matory medications and muscle relaxants. (15) physical injury” “Serious means He her periodically continued to treat and physical injury which creates a sub- treating was still at the her time of trial. death, stantial risk or of which causes Her last visit December was on serious and prolonged disfigurement, days time, five before At that trial. she health, prolonged impairment or of still pain, suffered from although neck prolonged impairment loss of the improved numbness in her had arms and any bodily organ. function of her dramatically improved. headaches had added.) (Emphasis The trial judge in- She was taking anti-inflammatory still oral structed jury on both assault 2nd and medications and relaxants and muscle Dr. assault 4th as included lesser offenses of considering Zhou referring was her for the indicted of assault in offense the first therapy. additional physical degree. Appellant claims it was error to instruct on 2nd assault because the evi- her employment Eberle testified that dence support was a finding insufficient working history department included in a by victim, jury Eberle, that the Lisa store, a a roofer. At factory, and as physical injury. sustained a serious assault, employed time of was full- she collision, Following baby-sitter time as a for children whose Eberle was transported by parents After University night ambulance worked a shift. assault, Hospital diagnosed part where was she of quit she with work because multiple strains, injuries frequency phys- and her of contusions and the her lacera- tion sutured, ical therapy part elbow which was visits and her and a because strain, cervical Latino, companion enough described Dr. domestic earned income the emergency physician, employment support from his room as a both stretching ligaments and them. She that she still muscles of testified suffers discharged pain the neck. from neck that she did not She was re- family physician, ferred to “choose not to Lynn her Dr. work.” Riley. Riley Dr. referred Eberle to Nichol Eberle Appellant claims that sustained for physical Nichol therapy. diagnosed only pain” as a result physical “substantial headaches, pain, neck lack cervical assault, inju- a “physical thus range of cervical motion caused muscle ry.” The claims that Commonwealth spasms, upper pain, thoracic and numb- “prolonged impair- Eberle also sustained ness of the right arm. He administered аssault, ment of health” result of the as a physical therapy treatments Eberle on thus instructed on properly twenty-seven between occasions June 20 agree the offense of 2nd. assault We with and October 2000. Because he was the Commonwealth. unable symptoms, sug- to reheve her he gested Riley that Dr. refer Eberle to a Luttrell v.
pain management specialist. Accordingly,
(1977),
that a police
S.W.2d 75
held
we
Dr. Riley
Eberle to
referred
Dr. David officer who was
in the chest with bird
shot
shot,
Zhou.
days,
for five
hospitalized
*12
prolonged,
it is
“physical injury;” but
for
six weeks
approximately
off work
injury.”
law,
not,
physical
it
a “serious
as a
of
sustained
then
is
matter
had
only in head-
injuries
at
And
resulted not
physical injury. Id.
77-79.
Eberle’s
serious
Commonwealth,
also muscle
pain,
v.
719 aches
neck
but
in Souder
and
(1986),
that
of neck
range
held
a child
decreased
spasms causing
we
S.W.2d
arm,
arm.
bruising,
motion,
a swollen
and
of
who sustained
numbness
her
and
mouth
her
in and about
from
until
burns
continued at least
The numbness
cigarette lighter,
Zhou,
of
cigarette or
none
not be-
Dr.
which did
treatment
follow-up treatment after
A
required
which
after the assault.
gin until five months
visit, had not sus
emergency
an
room
reasonably
the evi-
jury
could
believe
Id.
physical injury.
a serious
at 732.
tained
lost
pain,
dence
combination of
that
Hocker,
However,
in Commonwealth
motion,
con-
range
and arm numbness
of
(1993), we
that
Ky.,
Ky.App.,
was held evidence during the resulted from verdicts rendered dislodged during teeth victim’s were phase They first the trial. were en- assault, subsequent surgery dental dur- hanced 4th and 3rd to DUI OSL/DUI in proper align- to leave the teeth failed second, phase trial. ing separate of thе ment, victim was unable Ramsey, Ky., See Com v. 920 S.W.2d certain for four months after chew foods (1996) used (prior 528-29 DUI convictions “pro- was sufficient evidence of the assault cannot underlying offense enhance impairment of health” constitute longed guilt phase in the be introduced physical injury.” Id. 736-37. “serious trial). enhance- respective To obtain ments, required “im pain is an the Commonwealth was We conclude occur- pain prove prior If the sub three DUI convictions pairment of health.” stantial, years May ring it constitutes a within five prolonged, but prior two convictions. convictions ordered KRS were to be OSL/DUI 189A.090(2)(c).3 189A.010(5)(c), (10); concurrently, they merged KRS served into one proved prior purposes. Commonwealth conviction for PFO DUI KRS five *13 532.080(4). 21, April 1999, convictions on occurring The Commonwealth concedes 11, 20, 1997, 1997, 24, 1998, November July only that October March convictions 22, 1997, 20, 1997;4 satisfy January requirements and and two the time limitation of 532.080(3)(c)(l) prior occurring convictions on KRS and KRS OSL/DUI 532.080(2)(c)(same 11, 1997, 20, November requirements apply and October 1997. evidence, enhancement). hearing jury After 2nd this re- PFO 1st and PFO Thus, turned enhancing additional verdicts that conviction cannot be used for original 4th present convictions to DUI and PFO enhancement of his DUI 4th OSL/ 3rd, convictions, DUI D Class felonies. and 3rd the en- OSL/DUI hanced for those sentences convictions proceeded The trial then into the combi- must be vacated.6 nation penalty/PFO phase. KRS (3). 532.055(2), PFO 1st agree For enhance- We that at least some of the same ment, prior was required Commonwealth convictions used to enhance the of- convictions, 14, prove felony 1998, at least two fenses March prior underlying the con- of one which must satisfied D have one of the victions to Class felonies were also used D requirements time limitation in to enhance to KRS Class felonies the DUI 532.080(3)(c), e.g., complet- and of which Appellant offenses DUI/OSL imposed However, service of ed the sentence on was convicted in this case. prior of the felony only convictions within five 1998 DUI 4th conviction one of- prior fense, years to the date the commission not four consisting offenses of that (3)(c)(l). Id., present felony plus prior offense. offense the three offenses used The proved prior prove Commonwealth four felo- that the offense was a Class D ie., ny convictions,5 felony. Likewise, DUI 4th and the 1998 3rd OSL/ DUI/OSL DUI 3rd occurring only offense, convictions on March conviction one was for not 24, 1998, offenses;- present and two convictions of three separate Appellant’s convic- obtaining by only offense, tion of controlled substances fraud DUI 4th is for one not 218A.140(l)(c), four; forgery, occurring present KRS and his conviction of OSL/ 24, 1990, 31, offense, April October only and 1990. DUI 3rd is for one not three. 24, Because only prior the sentences the March and DUI convic- DUI/OSL 30, 2000, May argues As Ap- 3. KRS 189A.090 did 6.The not Commonwealth even if require prior correct, that the pellant convictions by OSL/DUI issue is mooted years present have occurred within five 24, 1998, fact that the March cоnvictions Garnett, Ky. offense. See Commonwealth Could still be enhance the used to assault 2nd App., 8 S.W.3d That omis- twenty years, ag- conviction to the maximum sion was corrected amendment that gregate imposed sentence that can under did not until become effective October However, 532.110(l)(c). if a KRS federal Acts, § Ky. 2000. 2000 ch. 7. Now see should, review, disagree court on habeas with 189A.090(3). KRS analysis our Confrontation Clause in Part III opinion, supra, of this that conviction and its 4. There is the record evidence in of at least vacated, twenty-year would be sentence leav- occurring two more DUI convictions on June ing only fifteen-year the enhanced sentence and June 1997. for criminal mischief 1st. fact, proved eight the Commonwealth prior felony but the convictions was in- structed on four. KELLER, J., part concurs enhancement tions used obtain PFO present were Appellant’s convictions with opinion, in part separate dissents felony convictions. Since March STUMBO, J., joining opinion. were used to enhance those convictions present
Appellant’s
DUI
concurring
DUI/OSL
KELLER
by Justice
Opinion
felonies, they
D
were
convictions Class
dissenting
part.
part
for PFO
under
used
enhancement
properly
I find
I
cannot
what
simply
decide
532.080(6)(b).
KRS
Corman
Common-
(Witness
troubling
Part
IV
most
about
wealth,
122, 124
Ky.App., 908 S.W.2d
*14
(1995)
I
majority opinion.
3rd
the
(prior
Deposition)
conviction of
OSL/DUI
be used for
enhancement
could
PFO
however,
have,
list.”
prepared a “short
though
conviction of
4th even
present
DUI
First, despite the fаct that the Common
predi-
a
prior
DUI conviction that was
trial
has
the
wealth
never—either
cate for the
3rd conviction
OSL/DUI
or in its brief to this Court —ut
court
convic-
prove
present
also used to
that the
the
“waiver” as
or written
word
tered
convic-
Appellant’s
tion was
fourth DUI
trial of
for its
justification
introduction
tion).
Grimes,
v.
See also Commonwealth
deposition of
licensed
videotaped
the
836,
(1985) (penalty
Ky., 698 S.W.2d
837
Nichol,
the
therapist Timothy
physical
offense
for second
controlled substance
for affirm
majority’s
of the
basis
linchpin
un-
conviction could be further enhanced
Second-Degree Assault
ing Appellant’s
prior
der PFO statute
offense
where
majority’s
is the
factual deter
conviction
not the
used for PFO enhancement was
and
Appellant’s
that
federal
mination
prior
prove
same
offense used to
that the
rights of confrontation
underlying controlled
offense
state constitutional
substance
offense); Eary
was a second
v. Common-
by
agree
his
counsel’s
were waived
(1983)
wealth,
198,
Ky., 659 S.W.2d
200
Second,
ma
Nichol.1
depose
ment to
(penalty
possession
for conviction of
jority opinion’s finding
Appellant
that the
felon,
handgun by a
KRS
convicted
in the
is unreasonable
acquiesced
waiver
527.040, could be
under
further enhanced
wording
part
multiple
of the
because
prior felony
PFO statute where
conviction
by
court
question asked
the trial
element
prove
used
convicted felon
support
Appellant’s answer do not
underlying
was a different
offense
majority opinion’s
Appel
conclusion
en-
conviction from those used for PFO
right
acquiesced
of his
lant
the waiver
hancement).
Nichol, particularly so because
to confront
Accordingly,
judgment
of convictions
pre
indulge every reasonable
“‘courts
imposed by
and sentences
the Jefferson
fundamental
sumption against waiver’ of
are affirmed.
Circuit Court
Third,
major
rights.”2
constitutional
optimism remi
ity opinion proceeds with
C.J.; GRAVES,
LAMBERT,
inexplicable
of Charlie Brown’s
WINTERSHEIMER,
niscent
JOHNSTONE, and
placeholder, Lucy, will
JJ.,
that his
concur.
faith
Zerbst,
458, 464,
58
v.
304 U.S.
144 S.W.3d
2. Johnson
Parson
1023,
1461,
(1938)
1019,
82 L.Ed.
1466
775,
(2004)
S.Ct.
clearly waived
("Appellant
783
Kennedy, 301
(quoting Aetna Insurance Co. v.
when
to confront
at trial
Nichol
811, 812,
U.S.
S.Ct.
agreed
testimony of
defense counsel
that the
Easton,
(1937)
Hodges
L.Ed. 1177
presented
de-
witnesses could be
medical
27 L.Ed.
U.S.
S.Ct.
position.”).
(1882)).
break form “the next time” and keep
Appellant’s
Second-Degree Assault con
in place
yank
football
rather than
away
viction, which I would reverse and re
at the last second when it bases its “waiv mand for a new trial because there is no
er” finding upon
legal
the same
conclu
evidence
this record to suggest
sion—that
unilaterally
counsel can
effect Appellant
knowingly, voluntarily,
himself
such a waiver—for which the Sixth Cir
intelligently relinquished
or aban
cuit “took us to the woodshed” a decade
doned his
to confront Nichol at tri
ago in
And, fourth,
Carter v. Sowders.3
al.
although it
is black-letter law that
Before I elucidate further regarding the
right of confrontation
secured
my
list,”
concerns that mаde
“short
howev-
Sixth Amendment
“basically
a trial
er, I feel the need
clarify
the record.
right[,]”4 the majority employs a harm
majority
opinion states:
less error analysis
appears
to render
morning
On the
of the second trial
harmless the introduction at
trial of
date,
November
videotaped deposition as long as the de
again requested
granted
and was
*15
fendant had an opportunity to cross-ex
continuance, this time because defense
amine the witness at the deposition itself.
counsel’s investigator,
might
who
be
say
Suffice it to
disagree
that I
with the
(the
witness,
called as a
ill
de-
majority’s
Appellant’s
view that
trial
fense counsel’s investigator did not
agreement
counsel’s
to depose Nichol
testify
held),
finally
when the trial was
Appellant’s
waived
rights
constitutional
and because defense
might
counsel
confrontation or that Appellant acquiesced
possibly have a medical problem as
to a waiver. Accordingly, consistent with
well.6
my consistently-held position
any
waiver of important
counsel,
protec Although Appellant’s
constitutional
Robert
(“McIntosh”)
tions must come from the defendant him D. McIntosh
cited the una-
herself,5
self or
I dissent in part as to vailability of a
investigator
defense
as one
(6th Cir.1993)
3. 5 F.3d
(granting
975
today’s majority
habeas
rect the
needlessly
error ...
relief in the face
prolongs
litigation
of a confrontation
[gives
clause
this
the Com
that,
Commonwealth,
violation
likely
in Carter v.
monwealth what will
turn out to be a]
(1989),
Commonwealth,
Ky.,
victory.” Taylor
782
hollow
S.W.2d 597
v.
this Court found
63
151,
(2001) (Keller, J.,
waived).
S.W.3d
had been
170
See id. 5 F.3d at
dissent
981 n. 3
(6th Cir.1993)
ing).
(observing that
this Court’s
opinion in Carter
reading
"conflicts with our
458,
719, 725,
[Johnson
v.] Zerbst
U.S.
Page,
[304
58 S.Ct.
4. Barber v.
390 U.S.
88 S.Ct.
(1938)]"
82
suggesting
L.Ed. 1461
20 L.Ed.2d
260
“personal
that the
waiver
defendant" view
applied
plurality opinion
in the
in
Commonwealth,
Dean v.
Ky.,
5. See
v.
Jackson
Commonwealth,
(1989)
Ky., 777
(2003)
S.W.2d 900
(right
by jury);
S.W.3d 128
to trial
correct).
Commonwealth,
I
major
would observe that the
Crawley
Ky.,
107 S.W.3d
ity's holding
J.,
comprehend
(2003) (Keller,
is difficult for me to
dissenting)
203-04
Commonwealth,
majority
because it is clear
cogni
(right
that the
testify);
Johnson v.
Sowders,
(2003) (Keller,
zant of Carter v.
Ky.,
which it not
n. 6
S.W.3d
cites, Parson,
J.,
(right
S.W.3d at 784
dissenting)
n.
but also
to trial
implicitly
protection
compelled
references
acknowledging
while
self-incrimina
tion);
Commonwealth,
possibility
Fugate
that the
federal
courts will some
(2001) (Keller, J.,
review,
day,
S.W.3d
"on
22-28
disagree
habeas
dissent
with our
ing) (right
present).
to be
analysis
Confrontation Clause
in
III[sic]
Part
Parson,
opinion[.]”
of this
week to, just I but want position, awkward this majority opinion grudgingly mentions record, impor- and I it’s for the feel clear- although basis the record alternative tant, today’s [unintelligible], not for granted the reflects that the trial court ly case is continued and but case the because requested primarily continuance date, the Common- we have another of defense counsel’s medical concerns: objecting to this continuance wealth is times Court: We have talked several just I want to thing, .... The other This is morning this off the record. record so the Court will note for the first time we have on the been this, come back sensitive we McIntosh, you’ve record. And Mr. that I have three doctors again, is morning to the Court this tendered testimony is this case. The medical *16 reassign the trial date and motion I case. important to be this going all, you’ve I talked to first of assume doctors, Judge, three medical have it, your your client about client knows calendar now that have cleared their you to do this. asking are the Court They’ve shifted the second time. for your Yes. I honor. McIntosh: have shift they’ve changed their patients, or they something so fact you your Do or done Court: want to address testify at the Common- are free to motion on the record? disposal Again, tomorrow. wealth’s extent, yes, To a but McIntosh: certain time, I have now to call for a second I expressed to some extent as have they them that now them and tell I morning, this don’t wаnt to. day pa- where have wasted another Court: And the Court understands they, and that won’t be treated tients also, I and I think counsel do but as they My eye- I know what do. don’t it, you asking are understand paid not today here are witnesses continue the case tñal CouH to for I four work. have they when leave investigator an both because witnesses, taken an- they again have your is not available and also office court, some wit- day, other come because some medical tests that times and have been here four nesses you go through have to are now to come and paid are not Nunn McIntosh: That’s correct. Ms. they need to come going to be told back on the 19th. She had should be time. back another I it was surgery Thursday, last believe during [Interrupting, McIntosh: As be available on the 19th. will Judge, if— pause] issue, I’m supposed far the other as just I [Interrupting] If could McCleod: something more tomorrow know finish. As I have told the afternoon 3:00. Okay, up you
Court:
Ms. McCleod finish
You don’t need to because
Court:
if
(cid:127)
given
then we’ll talk about what we need to
want a continuance and
reasons,
going
do about this.
medical
Court’s
grant
I would do it
the continuance.
you, .Judge.
McCleod: Thank
As to Ms.
I
think
any attorney.
don’t
Nunn, don’t,
I
only person
she has
there’s
need to discuss
far-
even
to is
talked
one witness who said
ther.
she didn’t
anything.
know
And I
would be able to—the Commonwealth
Regarding the merits of the issue ad-
stipulate
could
that Ms. Nunn doesn’t
majority opinion,
in Part
dressed
IV
know anything, the witness for the
majority opin-
I
agree comрletely with
I
attorney.
defense
And
don’t know
“[ojbviously,
ion’s observation that
Nichol
what the medical condition is
I
constitutional
‘unavailable’
want to be
to that
if
sensitive
but
it’s
And, I hardly
sense.”7
need mention that
n possible,I don’t
if
possible,
know it’s
an
unavailability
constitutional
absolute
we could roll this case to tomorrow in precondition to the admission at a criminal
the event that Mr. McIntosh is able to trial of an out-of-court testimonial state-
continue,
going
if he’s
to be at work
Accordingly,
petitioner
ment.8
“unless
did
tomorrow,
case,
try
and we could
this
actually
waive his
to be confronted
roll it at least to tomorrow.
],
with and to cross examine th[is] witness!
federally guaranteed
constitutional
Well,
guess
Court:
I
first
all
of Mr.
Therefore, the
rights have been denied.”9
McIntosh,
option,
is that an
to roll the
dispositive issue in this case is whether
day?
case one
Ni-
waived his
to confront
Um, Judge,
McIntosh:
I’ve expressed
presume
chol at trial.
cannot
a waiver
We
my
what
concern
If
is.
the Court
rights
Clause
Appellant’s Confrontation
wants to roll this until tomorrow then
Thus,
from a
must
silent record.10
we
that’s the
I
Court’s decision. would
examine the
“the facts
record and evaluate
*17
-
week,,
prefer to
it a
if
pass
but
that’s
allegedly
which
support
the waiver”11
Well,
passing
Court:
there is no
it a
accordance with the relevant constitutional
know,
week.
you
get
As
all
if we
a
“[tjhere
standards,
pre-
a
under which
is
date, you
new trial
looking
are
at Feb-
sumption against
the waiver of constitu-
ruary at the earliest would be a new tional
effec-
rights, and for a waiver
be
trial date. The Court has several con-
clearly
it
tive must be
established
cerns.
or
relinquishment
there was ‘an intentional
privi-
If I
McIntosh:
could address some of
of a known
abandonment
”12
-
addition,
things
determination
lege.’
were stated
“[t]he
Parson,
Janis,
1, 4,
7.
86 S.Ct.
physical
therapist, would like to do
I
but he asked
Appellant]
deposition14
Court:
understand
video
[To
if
day.
you thought that
offer was too
we could have it another
Would
their
just
me to
work it
high,
possible
and I talked to the Common-
it be
Nichol,
(1938)).
worthy
who is
Page, 390
14. I find it
of note that
See also Barber v.
1318, 1322,
719, 725,
was thus
U.S.
88 S.Ct.
neither an M.D. nor a Ph.D.—and
(1968)
(also applying
contemplated
any
previous
dis-
L.Ed.2d
not
in
waiver);
depositions
taking
of a
Illinois v.
Zerbst’s definition
cussions about
video
Allen,
S.Ct.
apparently
397 U.S.
the Com-
"the
informed
doctors”—
(1970)
Zerbst).
(citing
testify
25 L.Ed.2d
via video
of his desire
monwealth
date was select-
deposition
the new trial
before
ed,
Zerbst,
any scheduling
at
and thus
McIntosh: we have no and that would be of Mr. Tim Nichol. with that. And, Okay. Court: what’s the issue Foster: everybody. We’ll work with deposition? about the use of the My Court: That’s fíne. concern we’re Well, McIntosh: he has to be unavail- any- scheduled to be here tomorrow able for the trial and I don’t think way. that, in his deposition he stated - I they’ve already going McIntosh: think he was be on vacation through January 2nd and then would thinking Foster: I called them that the meeting January be at a national going case was to be continued and I, January through 3rd 7th. And on said, know, already had you that’s behalf, my chent’s I don’t think that I doing what when I left that’s a valid excuse for his unavaila- courtroom, and I’ve been able to vacation, bility. Someone’s un- get one of them back on phone. fortunate that he would not be able to McIntosh: I think that it would be bet- vacation, him go on does excuse ter they’re going to wait and see if testify. has to If from the fact that he even be unavailable. they testify, him to I don’t want cer- They may Foster: want to come to the tainly they’ve got enough think other trial. in, bring they if doctors to wanted Okay, just I’ll get Maggie Court: then I think "that that use them. don’t get go another trial date and we’ll unavailability. constitutes from there. Court: Ms. McCleod? Later, after deposition, the video at going McCleod: Ms. Foster’s address which learned more information Court, Judge. relevant to alleged inability Nichol’s to tes- 7.10, Rule Judge, [RCr] Foster: under tify trial, in person Appellant’s de- granted the Court is discretion to prohibit counsel moved the trial court to may be un- termine when a witness introducing the Commonwealth from Ni- actually available for trial. And we deposition chol’s video at trial. The tran- today, brought Mr. Nichol script hearing Appellant’s motion concerns Court has additional (1) apparently reveals that: neither the Nichol, unavailability. about his Mr. trial court nor the Commonwealth were deposition that he is he testified cognizant of the constitutional dimensions through the out of town for vacation (2) of “unavailability,” and the Common- January. 2nd of He will not be com- Appellant’s wealth never asserted waiver and then he’s ing night, until that as a basis for the introduction of Nichol’s *19 day and going to turn around the next deposition: video fly Vegas? Vegas. To Las out to Las Court: What issues do we need to take day, quote Court: And that the next up this morning? to start. day supposed the trial is think, McIntosh: I Judge, what we need Right? up to take is the issue of the use of day January 2nd is the McIntosh: I deposition this video at the trial. - 2nd. pretty think that’s much trial starts on the Foster: The all, you presuming are First of get does he Court: Okay, then when Court: seated and going get that we from vacation? back just ready, I mean we and be selected I will be audience] [From Nichol: first Tuesday and the a trial started Monday, the 7th. back on Wednesday morn- called witness was Okay, you go do on Court: so when we presuming are ing. you I mean vacation? far, you presuming are get that will Well, day sup- I Nichol: that was will want that the Commonwealth I’m day that posed to be here is the got early proof, him in the we’ve call our meeting for a national for leaving I don’t understand deposition. his be the 3rd. company, which would what, deposition was I assume the Okay, you leaving on the so are videotaped. Court: also meeting and then go 3rd to to this videotape deposition, Foster: haveWe - meeting vacation after the Judge, opportunity and he had an fully the witness cross-examine before, I will be Nichol: Vacation is easy. I’ll note Okay, it’s real Court: and re- leaving December 28th objection, your objection, overrule the on the 2nd. turning by videotape, you all can do if McIntosh, Okay. Mr. I don’t un- Court: says wrong, it’s it’s Appeals Court of derstand what the issue is. going to be out town wrong, but he’s That McIntosh: constitutes unavailаbili- meeting during period at a ty? Unavailability is someone who is dearly I think that establishes trial. dead, hospital is in the someone who you disagree, If unavailability.15 communicate, don’t or unable I Ap why got that’s we the Court think, anything I haven’t seen before, They wrong found me peals. vacation unavail- indicates constitutes they agree, they don’t I’m sure will ability. It’s unfortunate and I’m sor- differently. to do it tell us - that, ry for but at the same time here, you Mr. Nichol is are Foster: Court: It doesn’t sound like the vacation subpoena him from the excusing meeting is the issue. The issue is this he is under? go he has to to. Yes, you’ve got I mean if Court: McIntosh: His vacation is from the 28th deposition video
until the 2nd. He could be called in subpoena I he is McIntosh: think the testify on the 2nd to and then he can to, referring wrong, correct me if I’m fly meeting by out and be at his subpoenaed deposi- I him at our video 3rd. January tion to be here on 2nd for this trial. all, Judge, Foster: First of I think Mr. that, provide Okay, needs to some sort then he’s excused
McIntosh
Court:
he’s ex-
authority
says you
given
deposition,
have to be
the video
cused,
objection is
Mr. McIntosh’s
dead to be unavailable.
Commonwealth, Ky.,
today’s majority opin-
See Parson v.
would observe that
incorrect.
15. I
(2004) ("Contrary to the
Kentucky appellate
"say[ing]
797
accused,
it is he who suffers
deposition
for the
appeared
who
conclusion
if the defense fails.”
departed.
consequences
then
We find this
3
Zerbst. As the Second
inconsistent with
Supreme
Kentucky
The
Court
in
Circuit
stated
United States
right to confront
found that “Carter’s
(2nd
Crutcher,
239, 243
Cir.
405 F.2d
was waived”
deposition
Elam at the
1968),
denied, 394
89 S.Ct.
cert.
U.S.
deposi
notice of the
“[a]mple
because
(1969),
referring
deciding Carter’s
accept
fate.24
choice
the
to make
whether
counter-offer,
reject
or to
further plea
words,
In other
“a waiver cannot be based
(4)
negotiations,
parties
and'
if the
by
on statements
made
defendant’s law-
in
apart”
plea negotia-
were “too far
yer who has not first consulted with his or
tions,
possibility
deposing
of
“the doc-
client[,]”25
her
and a criminal defendant’s
day,
setting
tors” the next
but
the case
rights
constitutional
of confrontation can
by jury
itself for trial
on a future date.
only by
personal
be waived
consent of
Based on the multitudinous nature of the
although
the consent itself
defendant —
“question”
developed
and other concerns
expressly, e.g.,
can be communicated either
in
I
opinion,
later
this
do not believe it is
in an
colloquy,
on-the-record
con-
Appellant’s
reasonable to characterize
af-
duct, e.g., through
acquiescence
informed
firmative
as
response
express, knowing,
an
in
agreement
counsel’s
to the admission of
voluntary
and
of his
to con-
waiver
an out-of-court statement.26
front Nichol
The majority
at trial.
also
bar,
In
majority' suggests
the case at
it
hangs
paraphrases
its hat on what
as
Appellant acquiesced
in the waiver of Appellant’s
agreement
trial counsel’s
“that
fight
his
to confront Nichol when he re-
testimony
of medical witnesses could
fine,
sponded
your
would be
honor.”
“[t]hat
presented by deposition.”27
be
Given that
“
However,
response
this
towas
a somewhat
indulge every
pre-
‘courts
reasonable
meandering “question” from the trial court
оf
sumption against waiver’
fundamental
(1)
however, I believe
upon
Appellant’s past
rights,”28
that touched
constitutional
be-
necessary
engage
that it
in a
is
more-
lief that
plea
Commonwealth’s
offer
(2)
exacting scrutiny
exactly Appel-
of what
unreasonable,
the trial
past
court’s
agreed
lant’s trial
to do before
counsel
we
proposed
future communications with
validity of
even reach the issue of the
regarding
possibili-
Commonwealth
purported
counsel’s
waiver.
ty of obtaining
plea
Appel-
a new
offer that
(3)
might
palatable,
lant
find more
the fact
view,
my
majority opinion adopts
that, if the Commonwealth extended a new
in-
overly-broad
factually-suspect
an
plea
Appellant,
offer to
it
terpretation
Appellant’s
would be
trial counsel’s
Sowders,
utility
authority
24. Carter v.
by allowing the opportunity for cross ex-
amination to swallow the constitutional re-
quirement unavailability. I find it an
inescapable conclusion that Nichol’s testi- admitted,
mony erroneously and it
prejudiced Appellant in connection with Second-Degree Assault conviction. I
Because see none of “footprints”
“invited error”36 that would warrant addi- court, fact-finding by
tional I Appellant’s
would reverse Second-Degree
Assault conviction and remand that count
of the indictment to the trial court for a
new trial.
STUMBO, J., joins opinion, this
concurring part and dissenting part. BLAIR, Appellant,
Michael C. KENTUCKY,
COMMONWEALTH OF
Appellee.
No. 2002-SC-0548-MR.
Supreme Court of Kentucky.
Sept. 2004. See, e.g., Jackson v. 113 S.W.3d 134-36