BOBBY LEE BLACKFORD, SR . V. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
IMPORTANT NOTICE
NOT TO BE PUBLISHED PINION
THIS OPINION IS DESIGNA TED "NOT TO BE
PUBLISHED." PURSUANT TO THE RULES OF
CIVIL PROCED URE PROMUL GA TED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS A UTHORITYIN ANY OTHER
CASE INANY CO URT OF THIS STA TE.
RENDERED : DECEMBER 18, 2003
NOT TO BE PUBLISHED
,$uyrrmr 010urf of
2002-SC-0358-MR
BOBBY LEE BLACKFORD, SR .
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JOHN R. ADAMS, JUDGE
INDICTMENT NO. 01-CR-00934
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Bobby Lee Blackford, Sr., was convicted by a jury in the
Fayette Circuit Court of second-degree burglary and of the status offense of first-degree
persistent felony offender. The final judgment sentenced him to a twenty-year term of
imprisonment. He appeals to this Court as a matter of right .'
During July 2001, the McKnight residence in Lexington, Kentucky was
burglarized . Taken from the residence were a purse, a wallet, a flashlight, and $75.00
cash. During the course of the burglary, the burglar pried open and damaged the
window screen, then removed the window from its frame . The subsequent police
investigation revealed only a partial fingerprint on the window screen . The fingerprint
was lifted from the screen and examined by a fingerprint expert . Fingerprint analysis
performed by local police identified Appellant as the suspect . This was the only
Ky. Const. ยง 110(2)(b) .
evidence obtained during the entire investigation and none of the stolen items were
recovered .
At trial, Mr. McKnight testified that he went to bed at approximately 11 :30
p.m . on the night of the burglary and that he was the last person in the house to retire
for the evening . He also testified that his wife was the first person to awaken and enter
their family room the following morning, and that she discovered that their home had
been burglarized . He also stated that he did not know Appellant and that Appellant had
never been invited into his home. At trial, Appellant did not testify but presented two
alibi witnesses. The first witness, Appellant's friend, testified that she was with him at a
party downtown from about 11 :00 p .m. until approximately 3:30 a .m. on the night of the
burglary . Appellant's other witness, his girlfriend, testified that he arrived at their home
at about 3:00 a.m . and remained there until 10 :30 a.m. when he drove her daughter to
work. Appellant presents various issues on appeal and additional facts will be
presented as necessary.
Appellant's first claim of error deals with the trial court's treatment of
testimony presented by Sergeant Bottoms and fingerprint evidence that was not
provided to him during discovery . He contends that he was denied due process when
the trial court improperly denied his pretrial motion in limine to limit the testimony of
Sergeant Bottoms, and when the trial court improperly admitted certain fingerprint
evidence that was not provided during discovery . In the pretrial motion, Appellant
asked that Sergeant Bottoms not be allowed to say that the fingerprints were a perfect
or exact "match" because such testimony would lead to a conclusion that this type of
evidence is infallible . Appellant does not make any other argument as to the
admissibility of Sergeant Bottoms' testimony .
At trial, Sergeant Bottoms testified as to the process he used in the
course of fingerprint analysis . He admitted on cross-examination that this type of
analysis is subjective and susceptible to error. He also explained that no universal
minimum number of points exists to determine a fingerprint match . He stated that he
used 10 points because he had found that 5 points led to more than one matching
individual .
Appellant argues that a reference to a fingerprint "match" as perfect or
exact is misleading to the jury because as Sergeant Bottoms admitted fingerprint
analysis is subjective and prone to human error. KRE 403 states that relevant evidence
"may be excluded if its probative value is substantially outweighed by the danger of
undue prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, or needless presentation of cumulative evidence ." The balancing of the
probative value of the evidence against the danger of misleading the jury is reserved to
the sound discretion of the trial court. A ruling on such an evidentiary issue will be
reversed only if the trial court abused its discretion . Allowing Sergeant Bottoms to say
"perfect" or "exact" when describing his conclusion regarding the fingerprint was not
unfairly prejudicial or misleading because he also testified that the entire process was
subjective and prone to human error. As such, we conclude that the trial court did not
abuse its discretion in allowing the testimony of Sergeant Bottoms .
2 Commonwealth v. English, Ky., 993 S.W .2d 941, 945 (1999).
3 Justice v. Commonwealth , Ky., 987 S.W .2d 306, 315 (1998); Barnett v.
Commonwealth , Ky., 979 S .W .2d 98,103 (1998); Brock v. Commonwealth , Ky., 947
S .W .2d 24, 29 (1997); Partin v. Commonwealth , Ky., 918 S .W.2d 219, 222 (1996) .
During the Commonwealth's case-in-chief, the trial court allowed the
admission of a fingerprint index card created during the investigation and a fingerprint
chart created by Sergeant Bottoms during his fingerprint analysis . The index card
contained the actual lift of the fingerprint from the crime scene and the chart showed
the matching points between the fingerprint found during the investigation and
Appellant's known fingerprint. Appellant contends that the index card violated KRE
404(a) because "AFIS" was stamped on the card, yet there was no identification
number following the letters . Appellant contends that it was prejudicial to introduce the
index card because it is well know that "AFIS" is an acronym used by the FBI for
criminal identification purposes . He also argues that the index card and the chart
should have been turned over to the defense pursuant to RCr 7 .26 . The
Commonwealth argues that Appellant was not entitled to either item prior to trial, and
even so, that these items were in the sole possession of the police not the
Commonwealth Attorney .
RCr 7.26(1) provides that :
Except for good cause shown, not later than forty-eight (48)
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 .
This rule provides a defendant with reasonable opportunity to inspect and copy certain
witness statements . In this case, the index card about which Appellant complains was
not such a statement. It was created for investigatory purposes and for use in the
process of fingerprint analysis . Inasmuch as the index card held the fingerprint dusting,
it was real evidence. As such, it was not discoverable under RCr 7 .26 .
The fingerprint chart was created and used by Sergeant Bottoms during
his fingerprint analysis . This chart was a computer-generated piece of paper that
portrayed a comparison of Appellant's fingerprint and the fingerprint from the crime
scene . This piece of evidence was used by Sergeant Bottoms to explain the matching
points of the two fingerprints . Appellant concedes that this chart was not a verbatim
statement by a witness. RCr 7.26 applies to statements by witnesses, not to
demonstrative aids or to analytical documents. As to Appellant's claim of prejudice
from the "AFIS" stamp, we do not believe such a stamp is a universal or even well
known FBI designation . Moreover, there was no number associated with the stamp nor
did Appellant's name or other identifying information appear on it. However, the
Commonwealth's contention that a distinction exists between the police and the
Commonwealth Attorney with respect to possession of evidence is refuted by Ballard v.
Commonwealth . Accordingly, the trial court did not err by admitting the above
fingerprint evidence.
Appellant's next claim of error is that the trial court improperly denied his
request for a criminal trespass instruction . He argues that he should have received the
lesser-included offense instruction based upon the evidence . Appellant claims that it
was possible that he was on the premises at another time, but did not commit the
burglary since no other evidence linked him to the crime .
.,
'Ky 743 S .W.
2d 21, 22-23 (1988) .
Jury instructions are based on evidence presented at trial. There was no
evidence that Appellant had ever been at the McKnight residence on any other
occasion . Also, Appellant did not admit to having been on the premises before . The
present case is factually distinguishable from Martin v. Commonwealth , 5 wherein the
appellants testified that they had been inside the residence in question but did not enter
with the intent to commit a crime nor commit a crime while inside. Under such
evidence, this Court held that it was proper to include a lesser-included offense
instruction for criminal trespass . The present case is controlled by Commonwealth v.
Sanders , wherein this Court held that a criminal trespass instruction was not warranted
solely on the basis of an alibi defense where there was no "testimony or circumstances
that the jury could infer that there was presence in the house with no intent to commit a
crime."'
In the present case, the evidence at trial clearly revealed that someone
unlawfully entered the McKnight residence and stole property . There was no evidence
supporting a view that Appellant merely entered or remained unlawfully inside the
home. Consequently, there was no basis for an instruction on the lesser-included
offense of criminal trespass in the second degree .
Finally, Appellant claims the trial court erred when it denied his directed
verdict motion . He argues that the only fact linking him to the McKnight residence was
the fingerprint evidence . He further argues that the subjective fingerprint comparison is
.,
'Ky 571 S .W.2d 613
(1978).
6 Ky., 685 S .W.2d 557 (1985) .
Id. a t 559 .
insufficient to support this conviction of second-degree burglary, particularly since none
of the property taken from the residence was ever found or linked to Appellant .
Relying on Commonwealth v. Sawhill ,8 Appellant suggests that the
prosecution produced no more than a "scintilla of evidence" against him with no
evidence of substance, and for this reason he was entitled to a directed verdict. We
disagree . Fingerprint evidence is evidence of substance. We have reviewed the record
and it would not have been unreasonable for a jury to find guilt based on the evidence
presented at trial .9
For the foregoing reasons, the judgment of the Fayette Circuit Court is
affirmed .
Lambert, C.J., and Graves, Johnstone, and Wintersheimer, JJ ., concur.
Keller, J ., files a separate concurring opinion in which Cooper and Stumbo, JJ ., join.
.,
'Ky 660 S .W.2d 3 (1983).
9 Commonwealth v. Benham , Ky., 816 S .W .2d 186,187 (1991).
COUNSEL FOR APPELLANT :
Misty J. Dugger
Assistant Public Advocate
Department of Public Advocacy
Suite 302, 100 Fair Oaks Lane'
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
A. B. Chandler III
Attorney General of Kentucky
Matthew D . Nelson
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
RENDERED : DECEMBER 18, 2003
NOT TO BE PUBLISHED
,$ixuxtmle (gaurf of Arnfurkil
2002-SC-0358-MR
BOBBY LEE BLACKFORD, SR.
V.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JOHN R. ADAMS, JUDGE
INDICTMENT NO. 01-CR-00934
COMMONWEALTH OF KENTUCKY
APPELLEE
CONCURRING OPINION BY JUSTICE KELLER
I concur in the majority's ultimate holding, but write separately with respect to
Appellant's allegation that the trial court erred when it permitted the Commonwealth to
introduce into evidence a computer-generated fingerprint chart, which it failed to provide
to the defense during pretrial discovery, that portrayed a "side-by-side" comparison of
Appellant's fingerprint and the latent fingerprint found at the crime . Although the
majority opinion observes correctly that the Commonwealth was not required to provide
discovery of the chart pursuant to RCr 7 .26 - which, in all fairness to the majority, is the
discovery provision cited in Appellant's brief - the Commonwealth's failure to permit
Appellant to inspect and copy the chart constituted a clear breach of its discovery
obligations under RCr 7.24 . In my view, however, the trial court did not abuse its
discretion when it elected to remedy the Commonwealth's discovery violation by
permitting defense counsel to examine the chart prior to its cross-examination of the
Commonwealth's fingerprint expert .
The agreed order entered following the pretrial conference states "[t]he
Defendant requests and the Commonwealth agrees to provide discovery pursuant to
RCr 7 .24 and 7 .26." RCr 7 .24(1) provides in relevant part that :
Upon written request by the defense, the attorney for the
Commonwealth shall . . . permit the defendant to inspect
and copy or photograph any relevant . . . (b) results or
reports of . . . scientific tests or experiments made in
connection with the particular case, or copies thereof, that
are known by the attorney for the Commonwealth to be in
the possession, custody, or control of the Commonwealth .'
The chart at issue was created by Sergeant Bottoms of the Lexington Police
Department, who used it first during his fingerprint analysis itself and then again at trial
to explain the matching points of the two fingerprints . There is no suggestion in this
record that the Commonwealth was unaware that Sergeant Bottoms had created this
chart . In fact, given that the fingerprint was the only evidence against Appellant, I would
wager that the Commonwealth knew of the chart before it even presented the case to
the grand jury. While it may be debatable whether a fingerprint examination is
"science," the chart represented a "result[ ] or report[ ]" of Sergeant Bottoms's findings,
and the Commonwealth was required by RCr 7 .24(1) to permit discovery of it.2 In
addition, because the pretrial order does not limit the Commonwealth's discovery
obligation to the items addressed under RCr 7 .24(1), the Commonwealth was required
"to permit the defendant to inspect and copy . . . papers, documents, or tangible
RCr 7.24(1).
2 Cf. James v. Commonwealth , Ky., 482 S .W .2d 92, 94 ("A cat and mouse game
whereby the Commonwealth is permitted to withhold important information requested
by the accused cannot be countenanced.") .
objects, or copies thereof, that are in the possession, custody or control of the
Commonwealth[,] ,,3 which would include Sergeant Bottoms's chart.
I concur in the majority's holding, however, because I am unable to say that the
trial court abused its discretion in its selection from among the "array of available
remedies ,,4 under RCr 7.24(9), which provides :
If at any time during the course of the proceedings it is
brought to the attention of the court that a party has failed to
comply with this rule or an order issued pursuant thereto, the
court may direct such party to permit the discovery or
inspection of materials not previously disclosed, grant a
continuance, or prohibit the party from introducing in
evidence the material not disclosed, or it may enter such
other order as may be just under the circumstances .
Although Appellant understandably argues that the trial court should have "prohibit[ed]
the party from introducing in evidence the material not disclosed," I find no abuse of
discretion in the trial court's decision to remedy the Commonwealth's discovery violation
by allowing defense counsel to inspect the chart prior to his cross-examination of
Sergeant Bottoms, i.e . , by "permit[ing] the discovery or inspection of materials not
previously disclosed .,,6
Cooper and Stumbo, JJ ., join this concurring opinion .
3 RCr 7.24(2).
4 See Hodge v. Commonwealth , Ky., 17 S .W .3d 824, 849-50 (1999).
5 RCr 7 .24(9).
6 Cf. Copley v. Commonwealth, Ky., 854 S.W.2d 748, 750 (1993) (where the Court
found no prejudicial error in the Commonwealth's failure to disclose a coroner's and an
investigating officer's notes and reports in part because "Copley's counsel was afforded
an opportunity to review the photographs and the reports prior to the testimony .").
-3-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.