HOUSER (SHANNON) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: FEBRUARY 11, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000709-MR
SHANNON HOUSER
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL, JR., JUDGE
ACTION NO. 08-CR-00776
COMMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON AND LAMBERT, JUDGES; HENRY,1 SENIOR JUDGE.
LAMBERT, JUDGE: Shannon Houser was convicted in the Fayette Circuit Court
of tampering with physical evidence and leaving the scene of an accident and was
sentenced to five years’ imprisonment. He now appeals these convictions. After
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Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
21.580. Senior Judge Henry concurred in this case prior to the expiration of his term of service
as senior judge. Release of the opinion was delayed by administrative handling.
careful review, we affirm the March 24, 2009, judgment of the Fayette Circuit
Court.
Houser was indicted on July 1, 2008, for tampering with physical
evidence, leaving the scene of an accident, and possession of marijuana arising out
of the collision of his truck with Connie Blount on April 13, 2008. He appeared
before the trial court to enter a plea of guilty on February 2, 2009, but decided that
he wanted to proceed to trial instead. After a jury trial conducted on February 3,
2009, through February 5, 2009, Houser was acquitted of the marijuana possession
charge but convicted of the other two charges and sentenced to five years’
imprisonment for tampering with physical evidence and twelve months in jail for
leaving the scene of an accident, to run concurrently, for a total sentence of five
years in the penitentiary.
At trial Marc Bramlage of the Lexington Fire Department testified
that he was dispatched to the intersection of South Broadway and Maxwell Streets
at 2:22 a.m. on April 13, 2008. There, he found a trauma victim, Connie Blount,
being worked on by two emergency medical technicians. Bramlage’s unit
transported Blount to the University of Kentucky hospital, arriving at 2:39 a.m.
Blount subsequently died of the injuries sustained in the accident.
Ryan Gish testified that he was a student at the University of
Kentucky and a friend of Connie Blount. He and Blount were walking after
leaving Two Keys Tavern at about 2:15-2:30 a.m. on April 13, 2008. As they were
crossing the street at the intersection of South Broadway and Maxwell Streets, he
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reached the curb, turned around, and saw Blount bent over in the roadway. He
yelled at her to get out of the roadway, but she was struck by a truck. Blount was
struck by the left front of the truck, making a loud thump, and her body did not go
over the truck.
Gish described the truck as a silver GMC or Chevrolet. He testified
that the truck slammed on its brakes, that the brake lights came on, the tires
screeched, the truck fishtailed from the left to the right lane, hit the curb, paused or
came to a complete stop for a second or two, and then peeled off with tires
spinning. Blount was in the roadway and was unresponsive. Gish called 911, but
an ambulance happened to pull up to the scene and stopped.
Lexington Police Department Collision Reconstruction Unit Officer
Scott Lynch testified that he arrived at the scene at approximately 4:30 a.m. on
April 13, 2008. He presented Commonwealth Exhibit 2, a diagram of the
intersection with notations as to where various items of evidence were located at
the collision scene. These items included coins, an amber colored lens fragment, a
purse strap, trim from a vehicle, a cell phone battery and cover, a blood spot, light
socket pieces, a clutch purse, skid marks, part of a lamp housing, and fragments of
lights and vehicle trim. Officer Lynch testified that tire marks were present in the
street and on the curb.
Officer Lynch received information from an Anderson County,
Kentucky constable that Houser owned a truck that matched the description of the
one involved in the accident, and two officers were dispatched to Houser’s
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residence. There, Officers Brian Taylor and Donnie Salmons found Houser’s
truck, a Chevrolet, with damage consistent with the collision. The officers
obtained a search warrant for Houser’s auto shop, as Houser told them that he had
removed the grill of his truck at his auto shop. At the shop, the officers found the
grill of Houser’s truck in a bay area not hidden from view. The grill was broken
on the driver’s side, and part of the trim and part of an amber colored lens were
missing.
Officer Lynch testified that the front area of the truck appeared to
have been freshly worked on. A hair was found embedded in a wheel weight on
the driver’s side front tire. A cell phone bill was found in the truck, and a
marijuana cigarette was found under the driver’s seat. Lynch testified that the
large mark visible on Blount’s right thigh in an autopsy photograph was likely the
point of impact with the truck. His opinion was that Blount went underneath the
truck, and that the truck did apply its brakes, based on the tire marks on the street
and near the curb.
Officer Lynch testified that based upon his experience as a
reconstructionist and the evidence regarding the collision, a driver of the truck
would have been able to feel a person being struck by the truck and going
underneath the truck. Houser had told Lynch that he felt a thump, and when he got
back to his shop, he looked at the fender and knew he had hit something.
Officer Salmons testified that when he went to Houser’s home at
approximately 8:30 p.m. on April 13, 2008, Houser’s Chevrolet truck was in the
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driveway with the grill/bumper missing and light apparatus hanging down from the
front of the truck. Officer Salmons testified that during his conversation with
Houser, Houser asked about the collision that had been on the news, bringing up
the subject to the police himself. Houser told Officer Salmons that he had injured
his eye while working on the truck that day at his auto body shop on De Roode
Street. Officer Salmons said when the police took the grill from the garage as
evidence, Houser went from an agitated state to placing his head in his hands and
sighing loudly.
Officer Brian Taylor testified that he also went to Houser’s residence
on April 13, 2008 around 8:30 p.m. Houser had greasy hands and bloodshot eyes
and stated that while he was working on his truck, a piece of the truck had hit his
eye. Officer Taylor also testified that Houser asked them if they had heard about a
collision at Broadway and Maxwell, and they stated that they had. Officer Taylor
also confirmed that when they confiscated the grill, Houser put his head in his
hands and sighed.
Forensics Officer Jerry Walsh testified that he took pictures of the
scene. He testified that he obtained Blount’s clothing from another officer,
specifically a sweater with a piece of plastic on it. He also took possession of a
DNA card and head hair from Blount.
Forensics Detective Tim Ballinger testified that he processed Houser’s
truck for evidence. A video tape depicting the truck from all angles, including
underneath, was played for the jury.
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Melissa Brown, a serologist with the Kentucky State Police Crime
Laboratory in Frankfort, testified that suspected blood swabbed from the driver’s
side rear wheel of the truck matched Ms. Blount. The estimated frequency of this
DNA profile was one person in 130 quintillion, based on the relevant population of
the United States. Ms. Brown further testified that swabs for touch DNA were
taken from the front grill and the headlight casing of the driver’s side of the truck.
The DNA from these swabs was consistent with a mixture of Ms. Blount’s DNA
and an untested person.
Laura Mosenthin, a trace analyst from the Kentucky State Police
Crime Laboratory, testified that she matched a piece of lens from the scene with
the grill of Houser’s truck. She also testified that sweater fibers found in the grill
and trim of the truck could have come from Ms. Blount’s sweater, as they were
similar in color and microscopic characteristics to the fibers of Ms. Blount’s
sweater.
Detective Matt Brotherton testified that in the course of his
investigation, he determined that Houser made seven phone calls at 2:38 a.m. and
afterward on the morning of the collision. These calls utilized a cell phone tower
at 200 Bolivar Street, a location close to the site of the accident, placing the cell
phone within a block or two of the scene.
Detective Brotherton also played a recorded statement by Houser for
the jury. In that statement, Houser said he had been working on a Caravan when
he pulled back and hit his truck with a part. He stated that he took the grill off, not
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sure if it had been damaged. Houser denied touching the headlights or trying to
hide anything.
Houser told Detective Brotherton that on the day of the accident, he
had briefly been at a bar shooting pool and was home at 11:30 p.m. He was later
going to his auto shop that morning at 2:30 a.m., when he turned onto Broadway
and saw a guy standing at the crosswalk who looked wobbly. At this point, Houser
was driving in the left lane. He stated that he felt a thump and thought “What the
hell was that?” He was not aware that he jammed on his brakes. Once at his shop,
he looked at the front of his truck and found nothing wrong except a dent in the
fender. Houser told Detective Brotherton that he did not know about any incident
until he saw it on the news. He stated, “I never seen nothing, man.”
Houser did indicate to Detective Brotherton that he had taken a Lortab
that day and had one bourbon and coke to drink. Houser had indicated that his
reason for going to the shop that morning was to see if he could find any of the
tools that had been stolen from him from suspected thieves who had a shop nearby.
Detective Brotherton testified that he did not find it credible that Houser could
have hit Ms. Blount, had her roll under the truck, and not feel it.
Dr. Cristin Marie Rolf, a Kentucky state medical examiner, performed
the autopsy on Ms. Blount. She noted a large injury to Ms. Blount’s right thigh,
and abrasions on her back, right arm, and abdomen that were consistent with being
rubbed or scraped on a surface. Dr. Rolf stated that the cause of Ms. Blount’s
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death was blunt impact to the head, trunk, and extremities, with multiple injuries to
organs and the skeleton due to an auto collision.
Houser called one witness during the guilt phase, Gary Mallory, who
testified that he had known Houser since 1990-1991. Mallory stated that Houser
always worked on his truck, and he had seen Houser remove the grill on several
occasions. Mallory testified that on April 13, 2008, he called Houser regarding a
financial debt between the two men. Mallory stated that Houser indicated that he
did not have the money and was distraught and upset that he may have done
something or was somewhere he didn’t need to be. Mallory did not remember the
entire conversation, but stated that he was at his house with an Anderson County
constable during the phone call, and he told the constable about his conversation
with Houser and told the constable the color of Houser’s truck.
The Commonwealth recalled Detective Brotherton in rebuttal. He
testified that he had a conversation with Mallory on April 17, 2008. Mallory told
the detective about his conversation with Houser on April 13, 2008. Mallory told
the detective that he called Houser to sort out a debt matter, and Houser said, “I’m
sorry I can’t do anything. I’ve done something bad, and I’m going to have to get
out of town.”
After the jury found Houser guilty of tampering with evidence and
leaving the scene of an accident, he was sentenced to five years’ imprisonment to
run concurrently, and a motion for a new trial was overruled. This appeal now
follows.
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Houser first argues that the Commonwealth’s witnesses usurped the
function of the jury when they were permitted to testify that Houser knew he
collided with Blount. Houser contends that the testimony of Officer Lynch and
Detective Brotherton invaded the province of the jury when the officers answered
questions about the collision of his truck with Ms. Blount.
Officer Lynch testified as an expert in the field of accident
reconstruction. Lynch was asked if he had seen the accident photographs and
based on his reconstruction, if he had an opinion whether someone driving the
truck would have known they struck Ms. Blount. After a defense objection and a
bench conference, the trial court overruled the objection but instructed the
Commonwealth to rephrase the question in terms of the objective evidence in this
case to what a driver objectively would have felt or known under the
circumstances.
The Commonwealth then asked Officer Lynch whether, based on his
investigation and knowing the forensic evidence in this case, what a driver in a
vehicle objectively would feel as Ms. Blount went under the truck. Officer Lynch
responded that the underneath of the truck showed signs of rubbing and cleansing
marks, and there were places where suspension components had been rubbed
clean. He continued to testify based on his experience and as a driver himself, but
before he completed his answer, the defense raised another objection. The trial
court directed Officer Lynch to answer based on his experience as a
reconstructionist, and he responded that if a suspension component is rubbed, and
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as in this case, struck by a person, a driver “would have been able to feel it.”
Officer Lynch pointed out that the tire marks at the scene indicated the driver
reacted to something and would have known he hit something. Lynch testified that
Houser had also told Detective Brotherton and himself at Houser’s shop that he felt
something, and once he inspected his truck fender, he knew he had hit something.
Kentucky law states:
Expert opinion evidence is admissible so long as (1) the
witness is qualified to render an opinion on the subject
matter, (2) the subject matter satisfies the requirements of
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), (3) the
subject matter satisfies the test of relevancy set forth in
KRE 401, subject to the balancing of probativeness
against prejudice required by KRE 403, and (4) the
opinion will assist the trier of fact per KRE 702.
Stringer v. Commonwealth, 956 S.W.2d 883, 891 (Ky. 1997). Furthermore, the
decision to qualify a witness as an expert rests in the sound discretion of the trial
court. See Kentucky Power Co. v. Kilbourn, 307 S.W.2d 9, 12 (Ky. 1957).
Accordingly, we will not disturb the trial court’s finding, absent an abuse of
discretion.
In the instant case, there was no allegation that Officer Lynch was not
qualified to render an opinion on the accident. His testimony satisfied the Daubert
requirements that the testimony be relevant and reliable, of a scientific nature, and
assist the trier of fact in understanding the case. Daubert, 509 U.S. at 592-593.
Furthermore, Officer Lynch’s testimony was certainly relevant under Daubert and
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KRE 401, as it tended to make the existence of a fact of consequence more or less
probable than it would be without that evidence.
Officer Lynch’s reliability was established by his training and
experience. It is well-accepted that collision reconstructionists bring a specialized
and scientific knowledge to the courtroom. “Experts are now widely regarded as
indispensable in automobile accident litigation.” Lawson, The Kentucky Evidence
Law Handbook, Section 6.30 [2], Fourth Edition (2003). As such,
reconstructionists definitely provide specialized or scientific knowledge of great
assistance to juries in deciding the facts of cases, as required for the admission of
expert testimony by KRE 702. Finally, the testimony’s relevance was not
substantially outweighed by any prejudicial effect under KRE 403. The
Commonwealth was entitled to present proof that would assist the jury and provide
information about motor vehicle collisions beyond the knowledge of an average
citizen.
Officer Lynch’s testimony did not usurp the function of the jury.
Officer Lynch did not tell the jury that Houser was guilty of any offense, but only
that based on his expertise in accident reconstruction and the evidence from this
accident, he felt that a driver under these conditions would have felt something
during this collision. His testimony could assist the jury in deciding whether
Houser knew that he had been involved in an accident causing injury or death and
then left the scene without having stopped to determine the extent of any damage
or injuries.
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Further, his testimony could assist the jury in deciding if Houser knew
he was in possession of physical evidence relevant to an official proceeding.
Officer Lynch’s testimony pertained to elements of the charged offenses of leaving
the scene of an accident and tampering with physical evidence, but the testimony
did not usurp the jury’s ultimate decision as to whether Houser was guilty of those
charges. See Cormney v. Commonwealth, 943 S.W.2d 629, 634 (Ky. App. 1996).
In summation, the trial court did not abuse its discretion and properly
admitted Officer Lynch’s testimony as expert evidence.
Detective Brotherton’s testimony about the credibility of Houser’s
version of events was also admissible, and the trial court properly admitted it.
After establishing through Detective Brotherton that Houser was cooperative,
Houser’s counsel asked Brotherton if there was “anything” in Houser’s statement
that he found not to be credible. Detective Brotherton then answered that he did
not find Houser’s testimony about his presence at a particular bar and his cell
phone calls credible.
On redirect, the Commonwealth asked if Detective Brotherton found
Houser’s statement that he did not feel Ms. Blount under his vehicle credible, and
Detective Brotherton answered that he did not find that credible. The trial court
overruled defense objections to such testimony, finding that Houser’s counsel
opened the door to this line of questioning by asking Detective Brotherton if he
found “anything” in Houser’s statements to police to not be credible.
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The trial court correctly found that Houser’s counsel had opened the
door for the Commonwealth to pursue this line of questioning. “It is an established
and recognized rule of practice that a party to litigation, who first introduces into
the trial of the case either irrelevant or incompetent evidence cannot complain of
the subsequent admission by the court of like evidence from the adverse party,
relating to the same matter.” Commonwealth v. Alexander, 5 S.W.3d 104, 105-106
(Ky. 1999) (quoting Dunaway v. Commonwealth, 239 Ky. 166, 39 S.W.2d 242,
243 (1931)).
Houser contends that Detective Brotherton’s testimony about the truck
hitting Ms. Blount was not scientific or technical. However, it did not have to be,
as Brotherton’s testimony was not admissible as expert testimony in this capacity,
but as a fair question after the door to the credibility of Houser’s statement had
been opened by Houser’s own counsel. We find no error in the admission of
Detective Brotherton’s statements.
Houser further argues that the Commonwealth made a prejudicial
double jeopardy argument by arguing to the jury that there was no doubt evidence
was removed because Houser drove the truck from the scene. Double jeopardy
does not occur when a person is charged with two crimes arising from the same
course of conduct, as long as each statute “requires proof of an additional fact
which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52
S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932). “KRS 505.020(1)(a) and (2)(a) codify
this rule.” Commonwealth v. Burge, 947 S.W.2d 805, 809 (Ky. 1996).
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While driving away in the truck after running over Ms. Blount was
part of both the tampering with physical evidence charge and leaving the scene of
an accident charge, each crime requires proof of an element not common with the
other. KRS 524.100, Tampering With Physical Evidence, requires proof that the
defendant believed an official proceeding may be pending or instituted and that he
conceals, removes, or alters physical evidence that he believes could be used
against him, with the intent to impair its verity or availability in that proceeding.
KRS 189.580, Leaving the Scene of an Accident, requires proof that a defendant
was involved in an accident resulting in injury or death and failed to stop and
ascertain the extent of any injury or to render reasonable aid. These two crimes
clearly contain elements that are not common to the other, and the argument that
Houser removed evidence when he drove away from the scene does not constitute
double jeopardy.
Houser next argues that there was insufficient evidence that he
removed, concealed, or disposed of evidence with knowledge that an official
investigation was imminent or ongoing. To the contrary, there was sufficient
evidence, and thus Houser’s argument is without merit.
KRS 524.100 provides that a person is guilty of tampering with
physical evidence when, “believing that an official proceeding is pending or may
be instituted, he: (a) Destroys, mutilates, conceals, removes, or alters physical
evidence which he believes is about to be produced or used in the official
proceeding with intent to impair its verity or availability in the official
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proceeding . . . . ”
Houser contends that he did not know he may have committed a crime
and that the grill was located at his shop in plain view and was not concealed or
removed. Therefore, Houser argues there was not sufficient proof to convict him
of tampering with physical evidence. However, Houser’s testimony about seeing
Gish on the side of the street and his later statement that he knew he had struck
something when he saw the bumper of his truck, combined with the physical
evidence that Houser applied his brakes, brought the vehicle to a stop, and then
sped off, indicates that he knew something had occurred, and that at the very least,
he had been involved in a collision. Instead of stopping and informing someone
what happened, he fled the scene and later committed the ultimate acts of
concealment and removal of his truck grill and bumper.
Further, in Burdell v. Commonwealth, 990 S.W.2d 628, 633 (Ky.
1999), the Kentucky Supreme Court elaborated on KRS 524.100:
[O]ne who conceals or removes evidence of criminal
activity contemporaneously with the commission of his
crime commits the offense of tampering with physical
evidence. . . . The compelling logic of these decisions is
that one who has committed a criminal act and then
conceals or removes the evidence of his crime does so in
contemplation that the evidence would be used in an
official proceeding which might be instituted against
him.
The official commentary to KRS 524.100 clarifies
that a conviction of this offense may be obtained even if
the tampering occurred prior to the initiation of an
official proceeding. ‘[I]t is sufficient if the defendant
believes an official proceeding may be instituted and if
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he engages in the proscribed conduct with the specified
intent to impair the truth or availability of evidence he
believes will be used. . . .’
(Internal citations omitted). In the instant case, Houser concealed or removed
evidence of the collision contemporaneously with his offenses by driving away
from the scene and removing the grill from his truck. The evidence was sufficient
to support his conviction for tampering with physical evidence of a crime and for
the jury to infer that he concealed and removed his truck and grill in order to
impair its availability in an official proceeding against him.
Houser next argues that Detective Brotherton’s testimony regarding
statements made by Gary Mallory was inadmissible collateral impeachment
evidence. Evidence is collateral if it is not relevant for a purpose other than mere
contradiction of in-court testimony. Simmons v. Small, 986 S.W.2d 452, 455 (Ky.
App. 1998). A witness may not be impeached on a matter irrelevant and collateral
to the issues in the action. Id.
In the instant case, Mallory testified on direct examination that when
he and Houser were discussing a debt between the two of them, Houser was
distraught and upset and stated that he may have done something or was someplace
he did not need to be. In rebuttal, the Commonwealth offered Detective
Brotherton’s testimony, and Brotherton testified that Mallory told him that Houser
said he had done something bad and had to get out of town. Houser argues that
this statement was not relevant because it did not prove an element of an offense
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and was offered for the purpose of raising the inference that Houser knew he was
guilty and to characterize Houser as a bad guy.
However, the statements attributed to Houser by Mallory are quite
different than the statements Detective Brotheron testified about. Saying you were
in a place you do not like or doing something you didn’t want to do is clearly
distinguishable from stating to your friend that you have done something bad and
need to get out of town. Detective Brotherton had information about Houser’s
statements that not only differed from Mallory’s testimony at trial, but was also
highly relevant. Brotherton’s testimony was not just offered to contradict Mallory,
but also to show that Houser, on the same day as the collision with Ms. Blount,
believed he had done something bad and needed to leave town. As evidence of
Houser’s guilt, this was appropriate for the jury to hear. Such evidence further
passes the relevancy tests of KRE 401 and 402. Its probative value is not
substantially outweighed by the danger of undue prejudice under KRE 403.
Houser’s statement indicated that he knew he had done something wrong, which
goes to the heart of the case and is therefore not collateral.
Houser next argues that he was entitled to a change of venue or a
continuance, and the trial court erred to his prejudice in denying such. Houser
filed a motion for a change of venue on January 6, 2009. The motion was not
verified by Houser, as required by the application for a change of venue under
KRS 452.220(2), nor did it contain any supporting affidavits, as also required. The
motion was later supplemented with fourteen affidavits supporting a change of
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venue, all executed on January 12, 2009, and filed with the court on January 13,
2009.
However, as the trial court noted after its hearing concerning the
motion for change of venue, the affidavits were not filed with the motion to change
venue, and they did not comply with KRS 452.220(2) because they did not state
that the affiants were acquainted with the state of public opinion in Fayette County,
and the affiants did not swear that they verily believe that the statements in the
petition for a change of venue were true.
Compliance with KRS 452.220 is mandatory. Lewis v.
Commonwealth, 42 S.W.3d 605, 609 (Ky. 2001). Furthermore, as the trial court
properly noted, the affidavits in support of Houser’s motion to change venue did
not establish any prejudice, and the trial court properly determined that any issues
of prejudice could be dealt with during voir dire. Finally, Houser does not assert
that a single juror was improperly seated at his trial.
Furthermore, the trial court has wide discretion in ruling on a motion
to change venue. See Wood v. Commonwealth, 178 S.W.3d 500, 513 (Ky. 2005)
(internal citation omitted).
In determining the proper venue for a criminal trial, the
central concern is necessarily to afford the defendant a
fair trial, and a change of venue is appropriate when it
appears that the defendant cannot receive a fair trial in
the county of prosecution. A change of venue may be
granted upon a showing that: (a) there has been
prejudicial news coverage; (2) the coverage occurred
prior to trial; and (3) the effect of the news coverage is
‘reasonably likely to prevent a fair trial.’
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Id. (Internal quotations and citations omitted).
In the instant case, the trial court conducted a hearing and determined
Houser had not complied with the statutory process of changing venue and had not
demonstrated that prejudice would prevent him from having a fair trial. The trial
court properly conducted extensive voir dire to screen for those who might have
been tainted by pretrial publicity. There was no abuse of the wide discretion
afforded the trial court by not granting a change of venue.
Alternatively, Houser argues that a continuance should have been
granted when he changed his plea from guilty to not guilty and decided to proceed
to trial. The trial judge has wide discretion in managing a case, including the
decision to grant a continuance. See RCr 9.04. The decision regarding a
continuance will not be disturbed on appeal unless there is a showing of substantial
prejudice. Wilson v. Commonwealth, 601 S.W.2d 280, 285 (Ky. 1980). Houser
fails to show any prejudice whatsoever that resulted from the court failing to grant
a continuance in his case. Accordingly, we will not disturb the trial court’s
decision on appeal.
Finally, Houser argues that he did not receive a fair trial. In support
of this argument, Houser points to the testimony by Ms. Blount’s father. Mr.
Blount testified at trial that his daughter was an equestrian major at the University
of Kentucky who enjoyed riding her horse, and he characterized Connie as his best
friend. Houser argues that his case was tried like a murder case, with Ms. Blount’s
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photograph displayed to the jury throughout closing arguments and with Mr.
Blount testifying about the effect of his daughter’s death on him.
Houser cites to Sanborn v. Commonwealth, 754 S.W.2d 534 (Ky.
1988), arguing that the trial court must balance the probative value with prejudice
and exclude inflammatory evidence. In Sanborn, the Court disapproved of the use
of the victim’s husband, son, mother, and two teenaged daughters testifying
emotionally about the deceased. Id. at 542-543. We find the testimony in this case
to be vastly different from that in Sanborn.
The Commonwealth is permitted to present some personal evidence to
the jury about the deceased. See McQueen v. Commonwealth, 669 S.W.2d 519,
523 (Ky. 1984). In that case, the father of the victim was permitted to testify to his
daughter’s age, college graduation, and her saving money to pursue a master’s
degree. Id. Similarly, Mr. Blount testified about his daughter’s education and
interests, and his testimony is quite distinguishable from the cumulative and
emotional testimony disapproved of in Sanborn. In this regard, Mr. Blount’s
testimony did not render Houser’s trial unfair and was properly admitted by the
trial court under McQueen.
Houser also argues that portions of a taped statement he made to
Detective Brotherton were also improperly played for the jury. Houser argues that
the taped statement improperly included his testimony that on the day of the
accident he had taken a Lortab and had one bourbon and coke, but did not smoke
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marijuana. Houser argues that there was no evidence he was impaired on the night
of the accident and that it was not an element of any offense charged.
The Commonwealth argues that the taped statement actually helped
Houser, because it provided information to the jury that Houser had not smoked
marijuana. The Commonwealth also contends that the evidence was relevant
concerning Houser’s ability to effectively perceive the events surrounding the
collision.
While the record indicates that the portion of the statement indicating
that Houser had taken a Lortab was intended to be excluded, we conclude that the
inclusion of this statement was harmless error. Houser has not shown that absent
the inclusion of this statement, the results of his trial would have been any
different, and there was sufficient evidence tying him to the collision and the
ensuing events. Accordingly, the inclusion of the Lortab portion of Houser’s
statement constitutes harmless error and did not render his entire trial unfair.
For the foregoing reasons, we affirm the final judgment and sentence
of imprisonment rendered by the Fayette Circuit Court on March 24, 2009.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Barbara Anderson
Lexington, Kentucky
Jack Conway
Attorney General
W. Bryan Jones
Assistant Attorney General
Frankfort, Kentucky
-22-
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