*1 if it is purpose, offered for some other such II. ADMISSIBILITY OF “motive, prove intent, opportunity, as to PHOTOGRAPHS preparation, plan, knowledge, identity, or ab- appeal cross challenges Maddox’s ” sence of mistake or accident .. KRE the trial court’s admission of all thirteen 404(b)(1). However, prior, evidence of un- autopsy Generally, photos photographs. charged just bad acts is not admissible be- gruesome shocking images contain and party cause a asserts that such evidence automatically are not inadmissible. Funk v. support tends to one the above listed Commonwealth, purposes. may Prior bad acts be admissible (1992). However, body where victim’s prior identity establish if the uncharged materially through has been altered “mutila sufficiently act is charged similar act tion, autopsy, decomposition or other extra so as to probability a reasonable indicate that causes, neous not related to the commission by person. acts were committed same crime, pictures of the so that tend to Commonwealth, Billings Ky., 843 S.W.2d passion viewer,” appall arouse then (Evidence (1992), stepfather that of sod- general admissibility photos may rule for omy victim touched the victim’s sister be- Ky., overcome. Clark legs, tween exposed himself to the vic- agree sister, encouraged tim’s victim’s sister to the Court of Appeals photographs sexually watch explicit movies was not suffi- court grue admitted the trial were not so similar, admissible.) ciently thus not require some as to exclusion. herein, For forth opin- the reasons set Similarly, evidence other bad acts ion of the Court of reversed on prove plan common scheme must be appeal appeal direct affirmed on cross charged so similar to the offense that judgment final Jefferson Cir- “signature constitutes a crime.” Rearick v. cuit Court is reinstated. Ky., 858 S.W.2d In determining prior bad acts All concur. admitted, placed should be this Court has facts, emphasis upon common and has held
that the prior facts of the bad acts must be
so similar proba as to indicate reasonable
bility the acts were committed person.
same Lear v.
committed to be admissible as Kentucky, COMMONWEALTH identity operandi. either or modus Michael Appellee. alleged Stewart’s abuse of sexual the other No. 96-SC-170-MR. sodomy, child involved oral which occurred asleep, stopped while the child was when Kentucky. Court the child was far awoke. This different than abuse could inferred from the 30, 1997. Oct. pictures anus, of the victim’s bruised let beating alone the dreadful of the child victim. act prior
Michelle Davis’ bad bears no simi
larity were those which inflicted
Terrance. Michelle’s abuse of the hitting charge
child her involved that child shoe, cry
with a from the blunt far force
trauma which killed Terrance. *2 Harrison,
Robert E. & Harrison Goin Law *3 Firm, Green, Bowling Appellant. for Chandler, III, General,
A.B. Attorney Mat- Nelson, Attorney General, D. thew Assistant Frankfort, Appellee. for
COOPER, Justice. Appellant was indicted and convicted in Simpson first-degree Circuit Court of trafficking in a controlled substance and sec- ond-degree persistent felony offender for which he received enhanced sentence of twenty years. appeals He to this Court as a 110(2)(b). Ky. § of right. matter Const. The convictions are the of a result success- sting ful operation the Frank- conducted City Department. April 29, lin Police On Robert met Detective Huber with his informant, Payne, Billy confidential for the purpose setting up drug pur- a controlled Payne chase. searched Huber his vehi- cle, placed tape Payne’s per- recorder on son, Payne gave $40.00 purchase Payne the controlled substances. departed in his own vehicle to execute the sting.
Payne testified that he
drove Morris
Appellant
Street
where
encountered
persons
three other
vehicle.
Payne
entered
back seat of
purchase
car
his
quan-
and stated
desire to
tity
Appellant
Payne
of cocaine.
sold
“two
rocks” of
for
After the
cocaine
trans-
$30.00.
action, Payne returned to his own vehicle and
rendezvoused with Detective Huber.
cocaine,
recorder,
gave
tape
Huber the
statement,
remaining
written
and the
$10.00.
paid
Huber
his
services.
$50.00
trial,
paid
At
Payne admitted that he was
participation
operation
his
and that he
leniency
also had
his own drug
received
on
charges in consideration for
services as a
his
However,
informant.
on cross-exami-
nation, Payne
in-
denied that he had been
drug sting operations.
volved
this testi-
Commonwealth concedes that
mony was incorrect. Detective Huber testi-
doubt
beyond a reasonable
juror to believe
in other
fied that
been involved
guilty
selling
cocaine
paid
total
buys
had been
drug
for which he
Benham, Ky.,
Payne.
approximately
Commonwealth
$500.00.
of times
unsure
the exact number
S.W.2d 186
operations.
participated
sting
II.
OF DISCOVERY
VIOLATION
addition,
Huber testified
In
ORDER
minutes.
operation
lasted fourteen
entire
return, Payne
pre-trial
He also testified that
5 of
discov
paragraph
In
cocaine,
produced
returned the
order,
two rocks of
was ordered
ery
the Commonwealth
recorder,
unused
names and
with the
“provide
$10.00
the defendant
known,
The writ-
gave
addresses,
Huber a written statement.
known
persons
if
of all
personally
ten statement did not relate the fact
to have been
the Commonwealth
*4
present in
other men were
the
during
three
the
commission
present at
scene
purchase.
car
the time of the
The
charged.”
at
the
The Common
of
offense
recording
later
to be inaudi-
only Appellant
was
determined
response was that
wealth’s
appeal.
on
identify
ble. Weaver raises five issues
did not
Payne
present and
were
in
alleged to have been
the other three men
I.
OF THE EVIDENCE
SUFFICIENCY
It
time
the transaction.
the vehicle at the
of
TO SUPPORT CONVICTION
nor the
appears that neither Detective Huber
Payne
attorney was aware that
asserts that since
Commonwealth’s
in
perjury
respect
to his
so
any
present
committed
until
testi
others were
previous sting operations, the
volvement in
at trial.
fied
entirety
testimony
disregard
of his
must be
eye-witnesses
one of the
identified
course,
Payne’s testimony,
ed. Of
absent
not
know the
Robey,
Paul
claimed
to
as
but
a
support
there was no evidence to
convic
identity
the
Defense counsel
of
other two.
He
on
v.
tion.
relies
Warnell
Common
in order to
not ask for a continuance
did
(1953).
wealth, Ky., 262
683
Howev
S.W.2d
Robey
locate
and did not make
er,
Wamell,
continuously
the witness
However,
the
time.
at
con-
motions at that
story
changed his
four or five times with
on
clusion of the Commonwealth’s evidence
regards to
facts
the
the actual
crime.
trial,
day of
defense counsel
the second
stand,
Even on the
he contradicted himself
of the Common-
moved for a mistrial because
depending
attorney
asking
on
the
was
discovery
violation of the
order.
wealth’s
questions. Payne’s
was
misstatement
fact
fall
the
requested relief
within
The
would
only
on a collateral issue which went
to his
powers granted
RCr
broad remedial
own bias as a
Since Detective Hu
witness.
7.24(9).
testimony
Payne’s
ber admitted that
in that
proposition,
a
the Com
general
As
regard
incorrect, Appellant
to
was
was able
required
to disclose
monwealth cannot
Payne’s credibility
only
at
not
on
attack
trial
persons present at the time
names of
professional police
basis that
was
v.
charged in the indictment. Lowe
acts
“snitch,”
lied
but also that he had
on
(1986).
Commonwealth, Ky.,
The trial the ob sustained perceive how identifi- are unable jection inquiry on the basis of so- this used in type recorder cation of the of recog “police privilege” surveillance called ele- permit criminal transaction would this Court of in Jett nized would information that learning ments from Ky.App., 862 S.W.2d Never- future surveillance. help them evade Jett, Prior to surveillance theless, admitted recognized by privilege been our had never device was such nature courts; is it found in Article V the nor operation intentionally affected its could have Kentucky pro Rules of Evidence. KRE 501 producing an audible prevent so from as pertinent part as follows: vides recording the transaction. Since is sought prove, the information provided by Consti- Except as otherwise suppressing statute or these other rules tution or identify type recording promulgated by Court of would further person privilege to: used was harmless. Kentucky, has device (2) to disclose matter. Refuse ON APPELLANT’S V. COMMENT proper procedure amending or add- SILENCE Kentucky ing Rules Evidence closing argument, prose During in KRE 1102 and 1103. These established following: cutor stated *6 procedures do not include amendments or only in this Keep in mind the evidence unilaterally by created either the additions ease, ease—let me only this evidence (al- Assembly or the Court General only more time. The come that one though we are aware that the As- General Billy as to whether evidence in case sembly post-1992 statutes which has enacted buy two rocks of or did not did purport privileges, e.g., KRS to create new is that from John Weaver $30 cocaine 224.01-040). 325.431, specifically More KRS did, Billy said it. And he because permit rules not or do the amendment presented you there is no evidence by any rules new of evidence addition evidence, unquote, quote The he not. did except the court of this Commonwealth Su- presented you, what Mr. that has been Thus, preme Court. Court you to concentrate on is Skaggs wants authority purported its when exceeded he’s Billy Payne lied whether not about adopt “police privilege.” surveillance in other cases. as an informant acted in that re- overrule Jett Commonwealth about, Skaggs you to talk Mr. wants What spect. uh, job inept is the of the to think about rec aware that the Federal courts We are Department. Why is that? Police Franklin respect privilege” ognize “surveillance you want Why is that? Cause don’t by police in types of used to the devices only and remember that the think about prevent operations in order to surveillance Billy in this case learning information from criminal elements cocaine from bought pieces of rock two help them evade future surveil which would The uncontroverted Weaver John $30. Horn, Van E.g., United States v. lance. Undisputed. case. facts of this (11th Cir.1986), denied, 1492, 1508 cert. F.2d objection (1986). contemporaneous no 854, 107 There was 479 U.S. S.Ct. 190 argu- Instead, after the to this statement. Rules of Evidence contain the Federal re- jury had was concluded recognizing specific privileges, ment rules codified cessed, for a mistrial counsel moved development permit common law but rather prosecutor’s reasons, repeated based refer- For the judgment these Simpson ences to the Circuit Court is affirmed. uneontradieted evidence of the buy. motion cocaine The was overruled.
STEPHENS, C.J., GRAVES, JOHNSTONE, STUMBO and In place, the first this issue is not JJ., WINTERSHEIMER, concur. properly preserved. We held in Sizemore v. Ky., 844 S.W.2d LAMBERT, J., by separate dissents (1992) objection that an improper state opinion. during closing ments made arguments must LAMBERT, Justice, dissenting. contemporaneous. Sherley See also Ky., 889 S.W.2d majority opinion, As in the shown (1994); Commonwealth, Ky.App., Houston v. this case infected a number of 641 S.W.2d trial court The errors flaws in proceedings. The given opportunity should be to consider majority has held all such be harmless an admonition would cure the error. unpreserved. error or While the idea that Commonwealth, Ky., See Roberson v. non-prejudicial requires cumulative re- (1994). Regardless, S.W.2d applied versal is to be I sparingly, believe the prosecutor’s statements did not address threshold was met in this ease. Sanborn v. directly themselves silence. simply many permit
The There remarks address the are too flaws to failure appellant conclusion that fun- testimony by refute received means. fair damentally trial. prosecutor may “A properly comment on the defendant’s failure to introduce witnesses on Slaughter
a defensive matter.” v. Common
wealth,
prosecutor’s comments did not exceed the normally
latitude allowed to counsel clos
ing argument. Id. at 412.