MARK ALAN GOSSER V. COMMONWEALTH OF KENTUCKY
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1997-SC-0946-MR
MARK ALAN GOSSER
APPELLANT/CROSS-APPELLEE
APPEAL AND CROSS-APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE WILLIAM T. CAIN, JUDGE
96-CR-044
V.
COMMONWEALTH OF KENTUCKY
APPELLEE/CROSS-APPELLANT
OPINION OF THE COURT BY JUSTICE JOHNSTONE
AFFIRMING
Appellant, Mark Alan Gosser, was convicted of wanton murder in the Pulaski
Circuit Court, and was sentenced to twenty years’ imprisonment. He appeals to this
Court as a matter of right. We affirm.
Gosser’s conviction stems from the events of February 9-10, 1996, when a party
was held at a home in Somerset, Kentucky. Witnesses testified that Gosser went to the
party to find Danny Abbott, with whom Gosser had a dispute a few days before. Abbott
blamed Gosser for slashing his tires, and Gosser thought Abbott had set him up to be
arrested.
At some point after Gosser arrived at the party, he saw Abbott and the two
stepped outside to settle their dispute. They began to argue, and a crowd gathered in
anticipation of a fight. Shortly thereafter, Christopher Ryan Parmalee, a friend of
Gosser, came outside, and he and Abbott began to fight. Gosser briefly entered the
fight, then stepped back, pulled out a gun, and fired it. Although several witnesses
testified that Gosser fired the gun while it was pointed at Abbott, Gosser maintained
that the positioning of the participants in the fight made it impossible for the gun to be
pointed at Abbott, and that he fired the gun only to break up the fight between Abbott
and Parmalee.
In any event, the shot fired by Gosser hit Britt Bell in the center of his chest, and
Bell died approximately seven hours after arriving at the hospital. Gosser was tried and
convicted of wanton murder, and was sentenced to twenty years’ imprisonment. This
appeal followed.
On appeal, Gosser presents three issues: (1) whether the trial court erred in
admitting into evidence photographs and computer-generated models of the crime
scene that were prepared by the police; (2) whether the trial court erred in denying
Gosser a continuance; and (3) whether the trial court erred in failing to grant a mistrial
because the Commonwealth made a key witness unavailable to testify. For the
reasons set forth below, we affirm Gosser’s conviction.
On cross-appeal, the Commonwealth presents one issue: whether the trial court
erred in excluding statements made by Britt Bell after he was shot, because those
statements constituted a dying declaration. The Commonwealth has requested review
of this issue only if Gosser’s conviction is reversed and remanded for a new trial.
Because we affirm Gosser’s conviction, we will not consider the issue presented on
cross-appeal.
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I. ADMISSION OF POLICE-CREATED PHOTOGRAPHS
AND COMPUTER DIAGRAMS
Gosser argues that the trial court erred by admitting Commonwealth’s Exhibits 7,
8, 9 and 10. Exhibits 7 and 8 are photographs of the crime scene in which the police
had planted colored flags and had made spray-painted marks to show the locations of
individuals and evidence at the time of the shooting. Exhibit 9 is a two-dimensional
computer-generated diagram of the crime scene. Exhibit 10 is a three-dimensional
computer-generated diagram of the crime scene.
Exhibits 7 and 8. the Photoaraphs
These exhibits were admitted through the Commonwealth’s first witness,
Detective Rice. When the Commonwealth sought to admit Exhibits 7 and 8, Gosser
objected on two separate grounds: (1) that the photos did not fairly and accurately
depict the area photographed on the night of the shooting; and (2) that the photographs
were “composite” diagrams for which the Commonwealth had not laid the proper
foundation for their admission. The trial court overruled the objections and admitted the
photographs subject to Gosser’s right to cross-examine Detective Rice and other
witnesses on how the information was obtained. On direct examination, Detective Rice
identified who or what each colored flag and spray-painted mark in Exhibit 7
represented and explained how the reconstruction of the crime scene represented in
the photograph was prepared in the following manner:
Prosecutor: OK. Now what did you rely upon in determining
the positions of the various witnesses to the shooting?
Rice: The witness[‘s] statements. . . .
Prosecutor: OK. Did you take any witness with you when
you did the reconstruction of the actual shooting itself?
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Rice: Yes. We had one witness come out. . . Jimmy Dan
Carroll.
Prosecutor: And with his assistance[,] and relying upon the
[other] witnesses’ statements that had been taken by the
police department[,] were you able to reconstruct where the
witnesses were standing at the time of the shooting?
Rice: Yes.
Prosecutor: OK. And how did you do that--do that
reconstruction?
Rice: We just had a working knowledge ourselves through
our witnesses as to where they were positioned and we had
Jimmy Dan Carroll pointing out to us where different
witnesses were standing, where those involved, the three
individuals were at, and we placed orange flags,
repositioning of these individuals.
Prosecutor: OK. Now, after you placed the orange flags[,]
did you take some photographs of that?
Rice: Yes. Lieutenant Gary Jones took photographs.
Prosecutor: OK. But you were out there.
Rice: Yes, sir. I was videoing.
Detective Rice then testified that the photograph fairly and accurately depicted
the reconstruction as it appeared when photographed. Detective Rice’s testimony
concerning Commonwealth’s Exhibit 8, the aerial photograph, was similar.
It was improper for the Commonwealth to introduce Exhibits 7 and 8 through
Detective Rice. While the exhibits are physical photographs, they were used by the
Commonwealth as diagrams of the crime scene to show the locations of various
witnesses, the defendant, the victim, and the murder weapon. Detective Rice, who was
not present at the crime at the time of the shooting, did not have personal knowledge of
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the location of the persons and the items represented in the photographs at the time of
the shooting. His testimony to that effect was based on hearsay.
Nor was Detective Rice’s testimony necessary to show how the crime scene
reconstruction was prepared. The introduction of a map or diagram made prior to trial
is in “no wise different from one drawn by a witness in the presence of the jury.”
Cook
v. Commonwealth, Ky., 232 Ky., 613, 24 S.W.2d 269, 271 (1930). In State v. Furlouah,
797 S.W.2d 631 (Tenn. Crim. App. 1990), the defendant objected on hearsay grounds
to the introduction of a diagram of the crime scene. Id. at 646. The diagram had been
prepared by the investigating officer, who did not testify. Id. The Furlouah court
determined that the diagram, while based on hearsay, should not be excluded as such,
stating:
As long as the witness has personal knowledge of the
subject matter and the diagram is accurate, drawings drafted
out of court are admissible despite the hearsay rule. The incourt authentication of the drawing is the assertion
permitting cross-examination of its accuracy. That is
sufficient to satisfy the hearsay objection.
Id. at 647 (internal citations omitted). The fact that the diagram in this case was created
in a photograph, rather in a drawing, is of no consequence.
In the case at bar, the Commonwealth should have authenticated the crime
scene reconstruction photographs/diagrams through the individual witnesses who were
present at the time of the shooting. These witnesses had personal knowledge of the
subject matter of both the physical crime scene and the accuracy of the placement of
the identifying orange flags. Once the photographs/diagrams had been properly
authenticated, whether to formally admit them as an exhibit would have been left to the
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sound discretion of the trial judge. See Wilson v. Commonwealth, Ky., 551 S.W.2d
569, 571 (1977).
Exhibits 9 and 10, the Computer Diaarams
The use of computer-generated graphics and animation as evidence is a growing
trend in the Commonwealth, as it is in courtrooms all across the land. Heretofore, this
Court has not addressed any of the many issues concerning the admission of this type
of evidence. However, there is a growing body of case law and law review articles
concerning these issues.
Computer generated visual evidence (CGVE) is usually divided into two broad
categories: (1) demonstrative; and (2) substantive.’ Demonstrative CGVE usually
consists of still images or animation which merely illustrates a witness’s testimony.’
Substantive CGVE usually consists of computer simulations or recreations, which are
prepared by experts and which are based on mathematical models in order to recreate
or reconstruct an incident or event.3 In turn, the standard of admissibility depends on
how the CGVE is categorized.4 This situation is much like our approach to the
‘Dean M. Harts, Reel to Real: Should You Believe What You See, 66 Def.
Couns. J. 514, October 1999.
‘Timothy W. Cerniglia, Comouter-Generated Exhibits-Demonstrative,
Substantive or Pedaaoaical-Their Place in Evidence, 18 Am. J. Trial Advoc. 1, Summer
1994 at 4-5.
‘Id. at 5.
4Compare Cleveland v. Brvant, 512 S.E.2d 360, 362 (Ga. App. 1999) (computergenerated animation, which merely illustrates the witness’s testimony, is admissible if it
is a fair and accurate representation of the scene sought to be depicted) with Livinaston
v. lsuzu Motors. Ltd., 910 F. Supp. 1473, 1494-95 (D. Mont. 1995) (The trial court
properly admitted a computer-generated accident simulation introduced through one of
the plaintiffs experts. The simulation recreated the underlying accident and was
produced using a vehicle simulation computer program developed by the expert.
Based on the lengthy testimony by the expert concerning the development, testing,
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introduction of photographs. As explained in Litton v. Commonwealth, KY., 597 S.W.2d
616 (1980):
Photographs are most commonly admitted into
evidence as demonstrative evidence on the theory either
that they are merely a graphic portrayal of oral testimony or
that a qualified witness adopts the photograph as a
substitute for words. See McCormick on Evidence, Sec. 214
(1972); 3 Wrgmore on Evidence, Sec. 790 (Chadbourn rev.
1970). When a photograph is used as demonstrative
evidence, the witness need not be the photographer, nor
must he have any personal knowledge of the time, method,
or mechanics of the taking of the photographs. The witness
is only required to state whether the photograph fairly and
accurately depicts the scene about which he is testifying. . . .
Photographs can be admitted as real evidence in a
proper case. As stated in Wrgmore:
“With later advancements in the art of
photography, however, and with increasing
awareness of the manifold evidentiary uses of
the products of the art, it has become clear
that an additional theory of admissibility of
photographs is entitled to recognition. Thus,
even though no human is capable of swearing
that he personally perceived what a
photograph purports to portray (so that it is not
possible to satisfy the requirements of the
‘pictorial testimony’ rationale) there may
nevertheless be good warrant for receiving the
photograph in evidence. Given an adequate
foundation assuring the accuracy of the
process producing it, the photograph should
then be received as a so-called silent witness
or as a witness which ‘speaks for itself.“’
Id. at 618-19.
error rate, acceptance of the program by others in the field and the peer review of the
computer simulation methodology, the trial court found that the simulation was
admissible under FRE 702 and Daubert v. Merrell Dow Pharmaceuticals. Inc., 509 U.S.
579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993)).
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Litton was decided before the adoption of the Kentucky Rules of Evidence.
While its approach to admissibility is entirely consistent with the KRE, it is not
necessary to classify the photographs as “demonstrative” or “real” in order to determine
their admissibility under the KRE.’ Likewise, while classifying a particular type or piece
of CGVE as either “demonstrative” or “real” might be helpful as a starting point, the
question of admissibility is ultimately determined under the KRE.’
The admissibility of computer-generated diagrams, like those at issue in the case
at bar, are analyzed the same as diagrams drawn by hand or photographically created
(see discussion infra). That is, computer-generated diagrams have to be relevant,
KRE 402; are subject to exclusion under KRE 403; are subject to the trial court’s
discretion over the mode and order of the presentation of evidence, KRE 611; and have
to be authenticated by testimony of a witness that he or she has personal knowledge of
the diagram’s subject matter and the diagram is accurate, KRE 901. Further, because
a computer-generated diagram, like any diagram, is merely illustrative of a witness’s
testimony, its admission normally does not depend on testimony as to how the diagram
was prepared, e&, how the data was gathered or inputted into the computer. Cf. Cook
v. Commonwealth, supra; State v. Furlouah, supra. Of course, where a diagram
‘See aenerallv, Robert G. Lawson, The Kentucky Evidence Law Handbook, 5
11.05, pp. 597-610 (3d ed. 1993).
6Cf. Norman C. Ankers & Ronald S. Longhofer, Cornouter-Based Evidence
Under the Michiaan Evidence Rules, 78 Mich. B. J. 678, July 1999 at 685, in which the
authors conclude that the Michigan Rules of Evidence “work nicely in conjunction with
computer data. . . .I’; Gregory P. Joseph, A Simplified Approach to Computer-Generated
Evidence and Animations, 156 F.R.D. 327 (October, 1994) in which the author applies
the Federal Rules of Evidence to a variety of issues arising from the introduction of
computer-generated evidence; But cf. Alexandra Tzoumas, Marvland Sets New
Standard for Computer-Generated Evidence Admissibility, 12 No. 4 Inside Litig. 18
(April, 1998), in which the author outlines changes made to Maryland Rules of Practice
and Procedure for the admission of certain types of computer-generated imagery.
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purports to contain exact measurements, to be drawn to scale, etc., then testimony as
to how the data was obtained and inputted into the computer would be relevant and
could be necessary to the admission of the diagram.
The computer diagrams, Commonwealth’s Exhibits 9 and 10, were likewise
introduced through Detective Rice, who again testified that the location of persons and
items depicted in the diagrams were supplied to him by witnesses. While he also
testified as to physical landmarks (trees, air conditioning units, etc.) and distances in the
diagram which he personally observed and measured, Detective Rice lacked personal
knowledge of the most relevant parts of the subject matter of the diagram. His
testimony, as it was illustrated in the diagrams, concerning where persons were located
at the time of the shooting was based on hearsay and should not have been admitted.
While it was error to allow the Commonwealth to admit the above exhibits
through Detective Rice, the error was harmless. RCr 9.24.
The Commonwealth called a variety of witnesses who were present at the time
of the shooting and who referred to the diagrams in question. The testimony from these
witnesses was sufficient to authenticate the diagram. Thus, the error as to the
introduction of the diagram through Detective Rice was cured by the testimony of
subsequent witnesses. There remains the potential prejudice created by Detective
Rice’s testimony, which effectively served to bolster the testimony of the witnesses to
the shooting. See Bussey v. Commonwealth, KY., 797 S.W.2d
483, 485 (1990).
Under the harmless error doctrine, if upon consideration of the whole case it
does not appear that there is a substantial possibility that the result would have been
any different, the error will be held non-prejudicial. Abernathv v. Commonwealth, KY.,
439 S.W.2d 949, 952 (1969).
We do not believe that the result in this case would have
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been any different had the diagrams been properly introduced through the witnesses
who were present at the scene of the shooting rather than through Detective Rice for
the following reasons.
The jury was instructed on both intentional murder and wanton murder. The
intentional murder instruction allowed the jury to find Gosser guilty of the intentional
murder of Britt Bell if he pulled the trigger of his handgun with the intention of killing
Danny Abbott. This is a classic example of the principle of transferred intent.’
The Commonwealth’s theory of the case was that Gosser and Ryan Parmalee
went to the party where the shooting occurred to pick a fight with Danny Abbott.
According to the Commonwealth’s witnesses, Parmalee and Abbott began fighting and
Gosser came to Parmalee’s assistance by striking Abbott in the head with a football
style block. According to Abbott’s testimony, he responded by stating, “Oh, it’s two on
one.” Immediately thereafter, Gosser stepped back, pulled a handgun from his pocket,
pointed it at Abbott’s head and fired.
The defense’s theory of the case was that Gosser was not involved in the fight
between Abbott and Parmalee and that Gosser neither aimed nor shot at Abbott.
Rather, Gosser blindly shot away from both Abbott and Parmalee in an attempt to break
up the fight between the two. Parmalee’s statements, which were introduced into
evidence, and the testimony of another witness supported the argument that Gosser
fired away from both Parmalee and Abbott.
The diagrams support the Commonwealth’s theory in that they tend to show Britt
Bell and Gosser at opposite endpoints of an imaginary straight line, with Abbott located
‘a David J. Leibson, 13 Kentucky Practice: Tort Law 5 1.3, pp. 5-7 (1995).
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at a point on the line between the two. The jury, however, did not convict Gosser of
intentional murder. Rather, he was convicted of wanton murder. Thus, the jury did not
accept the Commonwealth’s theory of the case on this point. However, by all accounts,
the night was dark and a number of people were outside watching the fight between
Abbott and Parmalee and, possibly, Gosser. The presence of others was known to all
involved in the altercation. To randomly fire a gun in the dark in a direction where one
knows or should know there exists a high probability of the presence of people, clearly
supports the jury’s finding that Gosser acted wantonly under circumstances manifesting
extreme indifference to human life. There is not a substantial possibility that, under the
facts of this case, the exclusion of the improper bolstering testimony of Detective Rice
would have produced a different result. The error was harmless.
II.
CONTINUANCE
Next, Gosser argues that the trial judge abused his discretion when he denied
Gosser’s motion for a continuance because the Commonwealth withheld statements
made by Parmalee to the police and the grand jury until shortly before trial. Four days
before trial, Gosser made a motion for a sixty-day continuance because approximately
five days before he had received notice that the Commonwealth had reached an
agreement with Parmalee. Gosser’s attorney argued that this information required
changes in strategy, and that he could not adequately prepare for the crossexamination of Parmalee without the continuance.
Further, Gosser urges that he should have received a continuance because, on
the date trial was to begin, the Commonwealth provided six diagrams which were
created during police interviews with eyewitnesses. The diagrams were kept by one of
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the investigating officers, and the Commonwealth asserted that it produced all the
information it had at the time of Gosser’s request.
As Parmalee’s statements and the witness diagrams were provided within
different time frames, they will be discussed separately below.
A.
Diaarams from Witness Statements
The witness diagrams were not provided until the first day of trial. Their late
production violated RCr 7.26, which is commonly referred to as the “forty-eight hour
rule.” RCr 7.26 provides, in pertinent part:
Except for good cause shown, not later than fortyeight . . . hours prior to trial, the attorney for the
Commonwealth shall produce all statements of any witness
in the form of a document or recording in its possession
which relates to the subject matter of the witness’s testimony
and which (a) has been signed or initialed by the witness or
(b) is or purports to be a substantially verbatim statement
made by the witness. Such statement shall be made
available for examination and use by the defendant.
The diagrams at issue fell within the scope of RCr 7.26. They were witness
statements in documentary form that were in the possession of the Commonwealth.’
Further, they were related to the subject matter of the witnesses’s testimony and were
signed by the witnesses.
However, even if the forty-eight hour rule is violated, automatic reversal is not
required. McRav v. Commonwealth, Ky. App., 675 S.W.2d
397, 400 (1984). Some
prejudice must be found, or the error, if any, is harmless. Id. Gosser argues that the
violation of the forty-eight rule, without demonstrating any prejudice from that violation,
* A statement taken by an investigating officer or other agent of the
Commonwealth is deemed to be in the possession of the Commonwealth, regardless of
whether the Commonwealth’s attorney is personally aware of the existence of the
statement. Anderson v. Commonwealth, Ky., 864 S.W.2d 909, 912 (1993).
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is sufficient for reversal. We disagree. Because Gosser has not shown that he was
prejudiced by that violation, we will not disturb the trial judge’s decision.
B. Parmalee’s Statements
Parmalee’s statements were provided five or six days before trial. The
production of Parmalee’s statements to the police clearly did not violate the forty-eight
hour rule. However, waiting four days before trial to provide his statement to the grand
jury investigating the shooting of Britt Bell violated the spirit, if not the letter, of RCr
5.15(3), which provides in pertinent part, “any person indicted by the grand jury shall
have a riaht to procure a transcript of any stenographic report or a duplicate of any
mechanical recording relating to his or her indictment . . . .‘I (emphasis added).
Gosser first requested a copy or a tape of the grand jury testimony on March 1,
1996. The transcript of Parmalee’s testimony to the grand jury was not provided to the
defense until September 2, 1997. While it is not clear from the record when a copy of
the rest of the grand jury testimony was provided to Gosser, it apparently was provided
much earlier in time. The Commonwealth has offered absolutely no justification or
reason that it delayed providing the defense with Parmalee’s testimony to the grand
jury. While the failure to do so is indefensible, it is not reversible error under the facts
of this case.
Whether a continuance is appropriate in a particular case depends upon the
unique facts and circumstances presented. Snodarass v. Commonwealth, Ky., 814
S.W.2d 579 (1991). A ruling on a motion for a continuance will not be overturned
without a showing of abuse of discretion. Baabv v. Commonwealth, Ky., 424 S.W.2d
119 (1968).
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In denying Gosser’s motion for a continuance, the trial court stated that, while it
found defense counsel’s argument to be compelling, it also found that trying the case
as scheduled would not substantially prejudice the defense. Gosser argues that notice
of the Commonwealth’s deal with Parmalee and the tardily provided written statements
necessitated defense counsel reformulating the case. While possibly true, we cannot
say that the trial court abused its discretion in denying Gosser’s motion for a
continuance, especially in light of the fact that this case previously had been continued
twice because of scheduling conflicts.
III. MISTRIAL
Parmalee made four statements to police after Bell’s death, and he also testified
before the grand jury that indicted Gosser. Subsequently, Parmalee was charged and
indicted in a separate case for conspiracy to commit murder. Shortly before trial, the
Commonwealth reached an agreement with Parmalee whereby he would provide
truthful testimony of the circumstances surrounding the shooting in exchange for the
dismissal of the indictment.
The Commonwealth closed its case in chief without calling Parmalee as a
witness. Thereafter, the court held a conference in chambers to hear motions by
counsel. Defense counsel inquired as to Parmalee’s whereabouts and indicated the
defense’s intention to call Parmalee as a witness. After the Commonwealth Attorney
stated that he was not going to dismiss the indictment against Parmalee, Parmalee’s
attorney advised the trial court and counsel that he would advise Parmalee to assert his
Fifth Amendment privilege if he was called to the stand by the defense.
counsel then moved for a mistrial.
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Defense
The trial court initially indicated that it would grant a mistrial because Gosser was
unable to call Parmalee as a witness. However, defense counsel raised the possibility
of declaring Parmalee an unavailable witness pursuant to KRE 804(a)(l), and admitting
his statements to the grand jury as an exception to the hearsay rule pursuant to KRE
804(b)(l). Nonetheless, defense counsel moved the trial court to rule on his motion for
a mistrial, which motion the trial court denied. Subsequently, Parmalee’s grand jury
testimony was read to the jury in its entirety. Without objection from the
Commonwealth, the trial court also allowed Parmalee’s statements to the police to be
read to the jury.
A defendant’s motion for a mistrial should only be granted where there is a
“manifest necessity for such an action or an urgent or real necessity.” Skaaas v.
Commonwealth, Ky., 694 S.W.2d 672, 678 (1985) cert denied, 476 U.S. 1130, 106 S.
Ct. 1998, 90 L. Ed. 2d 678 (1986). The trial court has broad discretion in determining
when a mistrial is necessary. As explained in Wilev v. Commonwealth, Ky. App., 575
S.W.2d 166 (1979) “Where, for reasons deemed compelling by the trial judge, who is
best situated intelligently to make such a decision, the ends of substantial justice
cannot be attained without discontinuing the trial, a mistrial may be declared. . _ .‘I Id. at
169, quoting Gori v. United States, 367 U.S. 364, 81 S. Ct. 1523, 6 L. Ed. 2d 901
(1961).
In his brief, Gosser states, ‘I. . . when one looks at the totality of Parmalee’s
statements . . . one is confronted with the realization that Parmalee’s version of events
support [Gosser’s] version of events and not the prosecution’s . . . theory . . . .
Parmalee’s statements . . . are replete with exculpatory statements.” Indeed,
Parmalee’s statements support the defense’s theory that Gosser did not aim and
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intentionally fire at Abbott, but rather, that he fired the gun in a direction away from
Abbott.
Thus, Parmalee’s hearsay statements benefited the defense.
Gosser argues that live testimony is preferable to statements read into the
record. However, this Court deals with reversible error, not preferences. Parmalee’s
hearsay statements were read to the jury. The statements supported Gosser’s theory
of the case. Finally, Gosser has not argued that Parmalee’s live testimony would have
been substantially different or more beneficial to the defense. There was no manifest
necessity requiring a mistrial; the trial court did not abuse its discretion in denying
Gosser’s motion.
For the foregoing reasons, Gosser’s conviction is affirmed.
Lambert, C.J.; Cooper, Graves, Keller, and Wintersheimer, concur. Stumbo, J.,
dissents by separate opinion.
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COUNSEL FOR APPELLANT/CROSS-APPELLEE:
Mark J. Stanziano
Kathryn G. Wood
Law Office of Mark J. Stanziano
310 West Columbia Street
Somerset, KY 42501
COUNSEL FOR APPELLEE/CROSS-APPELLANT:
A. B. Chandler III
Attorney General of Kentucky
Perry T. Ryan
Gregory A. Ousley
Assistant Attorneys General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
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RENDERED: NOVEMBER 22,200O
TO BE PUBLISHED
97-SC-0946-MR
97-SC-0947-MR
MARK ALAN GOSSER
APPELLANT/CROSS-APPELLEE
APPEAL AND CROSS-APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE WILLIAM T. CAIN, JUDGE
INDICTMENT NO. 96-CR-00044
V.
COMMONWEALTH OF KENTUCKY
APPELLEE/CROSS-APPELLANT
DISSENTING OPINION BY JUSTICE STUMBO
Respectfully, I must dissent. The majority opinion finds that the trial court erred
in admitting a number of exhibits because they were not properly authenticated, that
there was a violation of RCr 7.26 and of RCr 5.15(3) and that while a mistrial could
have been declared, same was waived by the defense. In summary, the majority
opinion holds that the trial was rife with error, none of it reversible. Perhaps that is so,
but in my view, when the errors are considered together, it is clear that Appellant was
denied a fundamentally fair trial. The jury saw exhibits that may not truly have been
representative of the crime scene, heard testimony from witnesses that could not be
cross-examined and the defendant had a defense counsel who was faced with a
change in defense strategy only days before trial. We seldom reverse cases on the
basis of cumulative error but this is one in which we should. I would grant Appellant a
new trial.
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