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OPINION
THIS OPINION IS DESIGNA TED "NOT TO BE
PUBLISHED.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IS NOT TO BE PUBLISHED AND SHALL NOT BE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 UTHORITY INANY OTHER
CASE IN ANY COURT OF THIS STATE.
RENDERED : SEPTEMBER 22, 2005
NOT TO BE PUBLISHED
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JORGE LUIS TAMAYO-MORA
V.
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APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE LISABETH HUGHES ABRAMSON, JUDGE
2000-CR-002135
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant was adjudged guilty of one count of first degree sodomy and two
counts of first degree sexual abuse and given sentences of twenty years, five
years and five years to run consecutively for a total sentence of thirty years .
Appellant appeals to this Court as a matter of right asserting that the trial court
erred in (1) not upholding his Batson challenge to the Commonwealth's
peremptory strike of an African-American juror, even though the trial court found
a race-neutral explanation for the strike, (2) in allowing evidence of his escape
from the home incarceration program after he was compelled to give a DNA
sample for comparison testing, (3) in allowing the Commonwealth to call expert
witnesses since no notice of their intended use at trial was given - other than
copies of their reports and (4) in failing to prohibit the Commonwealth's DNA
expert from testifying as to when you would expect to find traces of skin DNA on
a bath towel . For the reasons set out hereinafter, we affirm the judgment of the
trial court.
FACTS
The Appellant, Jorge Luis Tamayo-Mora immigrated to the United States
from Cuba in November of 1995 . By the summer of 1999, he was living in an
apartment complex in Louisville, where he met Alexander and May Aquilla, along
with their daughter, L.P. He then began spending a lot of time with the Aquilla
family, and after awhile, Alexander suspected Appellant and his wife, May were
having an affair. This ultimately led to a fight, after Alexander came home early
from work and caught Appellant in his apartment taking a shower at 3:00 a.m .
Thereafter the marriage between Alexander and May deteriorated and
they separated in October 1999 . The Appellant then moved into May's
residence .
During the separation, May maintained custody of L.P. ; however, L.P.
would visit often with her father. At some point, he noticed she was acting
differently. Upon inquiry, she replied only that Appellant was in her room
sometimes . Later, on August 12, 2000, L. P. told her mother that since the
Appellant's birthday in October of 1999, he had been repeatedly coming into her
room, placing his penis into her hand and ejaculating on her. When Alexander
became aware of the allegations, he questioned L. P . and she further explained
that not only was the Appellant putting his penis into her hand, but he had
touched her vagina and buttocks and had placed his penis into her mouth.' He
then notified the police .
' She described it as his "pito," but L.P. had identified it from a drawing as his
penis.
The police then took L.P. for an interview with a childcare professional to
whom she explained the events, stating the Appellant rubbed her hand with his
penis and placed it in her mouth and that grease would come out and she had to
clean her hands by washing them or wiping them on the sheets or a towel in her
room. The police then searched the residence and seized two bath towels
hanging over L.P.'s bedroom door, sheets from her bed and various other items.
The items were transferred to the Kentucky State Police Jefferson Regional
Crime Laboratory where they were examined by Robert Thurman, a forensic
biologist . In his test, Thurman found sperm cells on the maroon towel, but not on
the other items.
As a result, the Appellant was arrested on August 25, 2000 and charged
with one count of sodomy in the first degree and two counts of sexual abuse in
the first degree . On October 3, 2000, he was indicted by the grand jury on the
same offenses, and on November 8, 2000, he was transferred from jail to the
home incarceration program . Then, on July 2, 2001, the trial judge ordered the
Appellant to provide
a saliva sample for DNA testing purposes .
He submitted to
the test on July 3 and the next day his monitoring device reported he was outside
the range of the monitoring system. Home incarceration officers drove to his
residence to locate and arrest him, to no avail.
He was located and re-arrested two years later in Las Vegas, Nevada,
and returned to Louisville. In April of 2004, he was tried before a Jefferson
Circuit Court jury and found guilty and convicted on all counts . He was
sentenced to prison for a total of thirty years .
BATSON COMPLAINT
During jury selection, the Appellant objected to the Commonwealth's
peremptory strike of African-American juror # 84141, for reasons that the
Commonwealth failed to give a credible, non-discriminatory justification for the
strike . Based upon the fact that both sides had struck an African-American juror,
leaving one African-American on the jury, the trial judge ruled that the Appellant
had made no "prima facie" showing of racial discrimination . Nevertheless, the
judge asked the Commonwealth to explain its use of the peremptory strike of
juror number 84141 . In response, the Commonwealth stated the juror was
stricken because he was young, worked as a waiter, had not been employed
very long and had no children . Based upon this reason, the court ruled the strike
was race-neutral and did not violate Batson v. Kentucky, 476 U.S . 79,106 S.Ct.
1712, 90 L. Ed.2d 69 (1986) .
Batson requires a three-step analysis . First, the Defendant must
establish a "prima facie" case of purposeful discrimination in selection of the jury
by showing the Commonwealth exercised peremptory challenges to remove a
member from the jury, such as to raise an inference the strike was used to
exclude jury members on account of their race or other discriminatory basis.
Batson at 96. Secondly, once such a showing is made, the Commonwealth
must satisfy its burden of showing a race-neutral explanation for striking the juror
in question . Id. at 97. Thirdly, if this burden is met by the Commonwealth, then
the Defendant must carry the burden of persuasion of proving the allegations of
purposeful discrimination . Id . at 98 .
The "[t]hreshold decision concerning the existence of a "prima facie"
case of discriminatory use of peremptory challenges involves both issues of fact
and law." United States v. Alvarado , 891 F .2d 439, 443 (2d Cir. 1989), vacated
on other grounds, 497 U.S. 543, 110 S.Ct . 2995, 111 L.Ed.2d 439 (1990); see
also, Mahaffey v. Page , 162 F .3d 481, 484 (7 th Cir. 1998) . This means that, once
the fact-finding has been performed, "the judge must then determine, as a matter
of law, whether these underlying facts suffice to establish a prima facie case."
Alvarado at 443. The fact that the Commonwealth did not use a peremptory
challenge to remove all African-Americans from the jury may be used as
evidence that no prima facie showing was made . Harris v. Kuhlmann , 346 F.3d
330, 346 (2d Cir. 2003) .
Under the second prong of Batson , once a Defendant meets the burden of
making a prima facie showing, the Commonwealth must come forth with a
racially-neutral explanation for its peremptory strikes. Several jurisdictions have
ruled that one's youthfulness is a racially-neutral reason for utilizing a peremptory
strike . Weber v. Stripgit, Inc. , 186 F .3d 907, 911 (8th Cir. 1999) ; United States V.
Maxwell , 160 F.3d 1071, 1075-76 (6th Cir. 1998) ; United States v. Grimmond ,
137 F .3d 823, 834 (4th Cir. 1998) ; United States v. Jackson , 983 F.2d 757, 762
(7th Cir. 1993) ; Price v. State , 725 N.E .2d 82, 87 (Ind . 2000); State v. Everett , 472
N.W.2d 864, 869 (Minn . 1991) ; People v. McGaughy , 313 III. App .3d 656, 246 III.
Dec. 447, 730 N .E.2d 127 (2000); People v. Rivera , 225 A.D.2d 392, 393, 640
N .Y.S .2d 483, 483 (N.Y. 2005); and State v. Castillo, 156 Ariz . 323, 325, 751
P.2d 983, 985 (Ariz. Ct. App. 1988) .
A person's short length of employment has also been held to be a raciallyneutral reason for peremptory strikes . United States v. Gillam , 167 F .3d 1273,
1278 (9th Cir. 1999) ; United States v. Yang , 281 F.3d 534 (6th Cir. 2002) ; United
States v. Munoz, 15 F.3d 395, 399 (5th Cir. 1994) ; United States v. Hughes , 970
F.2d 227, 231 (7th Cir. 1992) . Having no children is also a racially-neutral reason
for using a peremptory strike . Sparks v. Texas, 68 S.W.3d 6, 11 (Tex . Crim .
App.2001) (abrogated on other grounds by Guzman v. State, 85 S .W .3d 242
(Tex. Crim. App. 2002); Odom v. State , 241 Ga.App. 361, 363, 526 S . E .2d 646,
649 (1999) ; Balentine v . State, 730 So .2d 255, 261 (Ala . Ct. App. 1999) ; United
States v. Chandler, 36 F.3d 358, 367 (4th Cir . 1994) .
Having reviewed the record, we find no violation of Batson and therefore
no denials of "equal protection" as argued by the Appellant . Firstly, each side
struck an African-American, while one African-American juror was left on the
panel. Quite simply, this is a not a "prima facie" showing of discriminatory use.
Aside from this fact, the reasons stated by the Commonwealth were race-neutral.
APPELLANT'S ESCAPE FROM THE
HOME INCARCERATION PROGRAM
The Commonwealth filed a Motion in January 2004, seeking to introduce
evidence of the Defendant's flight while on the home incarceration program,
contending that "flight evidence" was admissible to show the Appellant's
"consciousness of guilt," as well as to explain the length of time the case had
been pending on the docket. The Appellant objected, arguing that this was not
traditional "flight evidence" due to the later timing and circumstances of the
Appellant's disappearance and further that the delay in bringing the case to trial
6
was not a legitimate exception to KRE 404(b) . After hearing arguments, the
court did not issue a ruling, but did indicate an inclination to exclude the
evidence . However, on the morning of trial, the trial court changed its mind and
allowed the introduction, to which Appellant objects.
Appellant was arrested and indicted on the charges on October 3, 2000.
He was placed on a home incarceration program on November 8, 2000. For a
short period of time, on and after December 9, 2000, the Appellant was taken off
home incarceration and returned to jail due to his phone being disconnected .
Once Appellant found another place to live, he was released back to home
incarceration . He had no further problems until the court entered an Order on
July 2, 2001, requiring him to produce a saliva sample for DNA comparison
testing purposes. This was done on the 3 rd of July and on the 4th, the Appellant
absconded . He was picked up in Las Vegas, Nevada approximately two years
later and brought back to Louisville .
"It has long been held that proof of flight to elude capture or to prevent
discovery is admissible because flight is always some evidence of a sense of
guilt. This common law rule is based on the inference that the guilty run away,
but the innocent remain, which echoes more eloquent language from the bible :
`the wicked flee where no man pursueth ; but the righteous are bold as a lion.'
Proverbs 28:1 ." Rodriguez v. Commonwealth , 107 S.W.3d 215, 219 (Ky. 2003).
Evidence of flight however, must still survive analysis under KRE 403 and 404(b).
"Under KRE 404 (b)(1), evidence of other crimes, wrongs or acts is not
2 The phone system retains communication with the home incarceration bracelets
worn by the incarcerated .
excluded by the rule if offered for some other purpose, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity or absences of mistake
or accident . This list of other purposes is illustrative rather than exhaustive ."
Rodriguez at 219 . An act expressive of a sense of guilt falls within the
authorizations of KRE 404(b)(1) . Id . at 220 .
Admissibility under KRE 404(b)(1) though, does not always satisfy KRE
403 . To evidence this point, the Defendant calls attention to the lapse of time
between the date of arrest on August 5, 2000, versus the date he absconded,
July 4th 2001 . This separation in time creates a balancing question for the court
as it may attenuate the relevancy . Rulings under KRE 403 are reviewed for an
abuse of discretion . Thomoson v. Commonwealth , 147 S.W.3d 22 (Ky. 2004).
In Aiken v. Commonwealth , 68 S .W. 849 (Ky. 1902), the Defendant was
arrested and charged with murder. At the examining trial he was discharged and
then immediately left the state for Kansas. While in Kansas, he was indicted, but
then he fled to Nebraska, where he was arrested some time later and brought
back to Kentucky for trial. In regards to the introduction of these facts in the
Defendant's trial for murder, this court held "[t]he proof conclusively shows that
he changed his mind afterwards, and did not return to Kentucky when he knew
he was indicted, but, on the other hand, fled to Nebraska. Although Appellant
was discharged on the examining trial, when he afterwards knew he had been
indicted, proof that he was then evading arrest was properly admitted into
evidence, for flight or concealment then was as significant as if he had had no
examining trial." Id . at 851 .
Here, although we have a significant separation from the time of arrest to
the escape, the significance of the escape becomes much more relevant than
prejudicial upon consideration of the fact that he fled the day after giving the
saliva DNA sample for comparison . The fact that he wasn't caught until two
years later is irrelevant to the balancing consideration under KRE 403, but is
instructive as to the reasons for the delay in the trial, since there were arguments
as to L.P.'s lapses in memory, who at the time of the alleged events, was only 5
years of age. All evidence is intended by one party to be prejudicial to the other;
it is only when the danger of undue prejudice substantially outweighs the
probative value that the evidence should be excluded under KRE 403. We find
no abuse of discretion by the trial court in this regard .
THE EXPERT WITNESSES AND THEIR REPORTS
In respect to these issues, Appellant argues that (1) he was not given
notice that the Commonwealth would use expert witnesses in regards to its
forensic biological and DNA evidence, and (2) the trial court erred in allowing
such experts to give opinions outside the scope of the reports provided .
On March 5, 2001, the Commonwealth, in response to the court's pretrial
order of discovery, filed a one page "report of forensic laboratory examination"
from the Kentucky State Police Jefferson Regional Laboratory, signed by
examiner Robert Thurman . The report stated that semen had been found on a
maroon bath towel, which had been taken from L. P.'s bedroom .
On October 16, 2003, the Commonwealth filed another two page "forensic
laboratory report" from Fairfax Identity Laboratories signed by two forensic
analysts, Dr. George Riley and Danielle Bernier . This report stated that DNA
testing had been performed on cuttings from the maroon bath towel containing
semen, as well as on saliva samples from the Appellant . The results showed
that the DNA on the towel was consistent with the saliva taken from the Appellant
and that the expected frequency of this DNA profile was fewer than 1 in 236
quadrillion . The report also noted that no female DNA was detected on the
sample tested .
At trial, the Appellant objected to the testimony of these experts on the
grounds the Commonwealth had given no notice they would appear and testify
as experts . The answer is plain - the Commonwealth did not have to.
It did provide copies of their reports which plainly indicated the areas of
their testimony, as well as the science involved . The reports are required under
RCr 7.24(1) . Witness lists are not required and may not be compelled . Lowe v.
Commonwealth, 712 S.W .2d 944, 945 (Ky. 1986), see also, King v. Venters, 596
S .W.2d 721 (Ky . 1980) .
Relevant to the second issue, Appellant's counsel, in his opening
statement, pointed out the absence of L.P.'s DNA on the towel and further noted
that the exhibit photographs of the towels in place on top of her door indicated
that the towels were hung too high for L.P., who was then 5, to have reached
anyway. Thus, it was the defense perspective that the DNA match could only be
evidence of consensual sex between the Appellant and May.
Dr. Riley, the forensic DNA analyst and the forensic laboratory director of
Fairfax Identity Laboratories testified on the second day of trial . Consistent with
10
his report, he testified as to the testing on the cutting from the maroon bath towel
containing semen and the saliva swabs from the Appellant . However, when he
began to discuss the significance of the percentages regarding DNA similarities,
Appellant objected, arguing he had not been given notice of this particular
testimony . This objection was rightly overruled by the trial court, finding that Dr .
Riley had submitted a "standard DNA report." The report specifically noted the
statistical odds of similarities as being one in 236 quadrillion . This statistical
probability is at the core of DNA comparison science .
Later, the prosecutor asked Dr. Riley, if it would be common for DNA to be
present on the towel if someone just wiped her hands on the towel. Defense
counsel again objected and requested a mistrial on the grounds Dr. Riley was
expressing an opinion outside his report. The Commonwealth countered,
arguing that the Appellant had opened the door to this testimony by virtue of his
opening statement that the absence of L.P .'s DNA on the towel was evidence
that this towel and the sperm DNA found thereon was indicative only of
consensual sex between Appellant and May. The court overruled the objection
and permitted the testimony from Dr. Riley that a person's DNA ("wear DNA")
would not likely be found on clothing worn for a short period of time, or a towel
handled for a minimum amount of time, or for that matter, within a sample
containing the Appellant's sperm, since the sperm would contain voluminous
material of DNA, and would likely overshadow, or cover up, minimal amounts of
"wear DNA" imprinted by hand .
At no time did Dr. Riley express an opinion on what L.P. had or had not
done with the towel . His testimony was limited to the expected parameters of the
science . The scientific point was merely that DNA from skin contact requires
more than minimal handling and transfers only minimal amounts of mitochondrial
DNA at best as opposed to the voluminous DNA expected from a sperm sample .
He did confirm that no female DNA was found on the sample that he did test.
L. P. testified several witnesses after Dr. Riley and was subject to cross
examination on what she did or did not do with her towel .
In times past, the Commonwealth was under no duty to give information to
the accused as to what proof would be introduced, except such as was conveyed
through the charge set out in the indictment . Patterson v. Commonwealth , 66
S.W.2d 513, 515 (Ky. 1933)(overruled in part by Jett v. Commonwealth , 436
S .W.2d 788 (Ky. 1969), see also, Lewis v. Commonwealth , 190 Ky. 160, 227
S .W . 149, 150 (921) . See , CR 76.12(4)(g) . Today however, criminal discovery is
controlled primarily by RCr 7.24 and 7.26, along with RCr 6.22 and RCr 5.16(3) .
RCr 7.24(1) provides, in relevant part:
"Upon written request by the defense, the attorney for the
Commonwealth shall . . . permit the defendant to inspect and
copy. . .any relevant . . .(b)results or reports of. . . scientific tests
or experiments made in connection with the particular
case, . . ."
Only a handful of cases have considered the parameters of RCr 7.24(1) in
regards to the Appellant's objection . James v. Commonwealth , 482 S.W.2d 92
(Ky. 1972) is one. In this case, the defense was not given the report of the
chemist who testified regarding the drugs seized; however, it was acknowledged
the report existed . Thus, our predecessor court reversed, noting: "[a] cat and
12
mouse game whereby the Commonwealth was permitted to withhold important
information requested by the accused cannot be countenanced ." Id . at 94 .
Then we had Ford v. Commonwealth , 665 S .W. 2d 304 (Ky. 1984) . In
Ford, a serologist who found and measured skin tissue taken from a hole in the
wall at a crime scene and compared it to the scratches on the Appellant's hand,
was allowed to testify, over objection, that "there was little chance that the skin
pieces found at the scene could have come from anyone but the Appellant ." Id .
at 309. In response to the Appellant's objection, this court stated : "The
contention regarding surprise is without merit. Appellant had conducted a
lengthy pre-trial deposition of Alford and did not ask Alford about any
comparative measurements, nor is there any evidence that Alford deliberately
withheld anything . A general order requiring the Commonwealth to furnish the
results of scientific tests or experiments does not avail the Appellant to relief
under RCr 7.24(9), where an actual deposition was taken . This is not a `surprise'
witness but one who testified at his deposition that he had, in fact, discovered
skin tissue and measured it. He was never asked if he had compared those
measurements with the Appellant's wounds ." Id. a t 310.
Barnett v. Commonwealth , 763 S.W .2d 119 (Ky. 1989) was next in line. In
Barnett, we again dealt with the testimony of a serologist, who testified that "there
were faint traces of blood that could be found on the Appellant's hands and arms,
and then opined that this was attributable to washing away the blood that could
have been expected from the victim's wounds." Id. a t 123 . Further considering
the objection, we noted, "this presence of a nearby puddle would support an
13
inference, albeit weak, that there was at least an opportunity for the Appellant to
wash the blood off of his hands. This evidence was weak because the
undisturbed condition of the puddle and of the Appellant and of his clothing
refuted the implication that washing had occurred ." Id. a t 123 . In reversing, this
court concluded "[t]he Appellant was entitled under RCr 7.24 to be confronted
with the fact that this opinion would be presented against him before the trial
started so that he had a reasonable opportunity to defend against the premise."
Id . citing RCr 7 .24(1)(b) .
We next considered the question in Milburn v. Commonwealth , 788
S .W.2d 253 (Ky. 1990) . In Milburn , the ballistics expert's report, in a fatal head
shot case, concluded with the finding "a light reaction to lead residue noted on
exhibit #7." The expert then elaborated on the finding at trial noting "it would be
consistent with his findings to assume that the weapon was in close proximity to
the victim's head when it was fired ." Id. at 255. This conclusion on proximity,
although predominant within the science of ballistics, was not contained in the
report. In reviewing the differences between this instance and Barnett , we noted,
"the expert's conclusion in Barnett was based not only on the premise contained
in the report, but also on an additional and necessary premise . To reach the
conclusion that Barnett may have washed away the victim's blood, the serologist
relied on the light blood traces he found on Barnett's hands and arms. But in
order to be relevant and admissible, the expert's opinion also had to be based on
the evidence that Barnett had had an opportunity to wash his hands. Yet, without
prior knowledge of the expert's opinion, Barnett had no reason to develop proof
14
that the puddle near the murder scene was undisturbed or that Barnett's person
or clothing was not damp or splashed from washing, so as to refute the expert's
opinion ." Id. at 256 .
We next elaborated on the differences between Milburn and Barnett by
noting, "in contrast, the firearms examiner's opinion in the case . . .was drawn
directly from the premise that a light reaction to lead residue was found in hair
taken from the wound to the victim's head. The report stated that one of the
purposes of the examination was to determine whether lead residue was present
on the victim's hair sample. This information serves the commonly recognized
purpose of determining the proximity between the gun muzzle and the victim.
The expert relied on no additional premise against which Appellant claims
a need to defend himself . Under the facts presented, we held the trial court did
not err under discovery rules, court orders, or Barnett, in allowing the expert to
testify as to his opinion on proximity based upon the result of his examination of
the evidence. Id. at 256. Milburn, noted by footnote that this connection was
important to the science . Id . at 256, Fn.1 .
We next considered the question in Collins v. Commonwealth , 951 S .W.2d
569 (Ky. 1997) . In Collins , "Dr. Bates conducted the medical exam on L .T. and
documented in her report that the L.T. still had a hymen . The report extensively
delineated physical findings and described in detail the characteristics of L.T.'s
hymen . Dr. Bates concluded that her findings were indicative of sexual abuse .
In accordance with the discovery order, the Commonwealth provided Appellant a
copy of the report." Id. at 573. At trial, Dr. Bates testified "as to the contents of
15
her report and her conclusion that L.T. had been sexually abused despite the fact
that the hymen was still present . Over defense's objection, she further stated
that it was not uncommon for women who have had numerous sexual encounters
to still have a hymen. In fact, Dr. Bates commented approximately 50% of the
sexually active women she examined retained a hymen . She stated that her
opinion was based upon her experience with pelvic examinations, as well as
extensive medical research she had studied . Appellant contended on appeal
that he should have been provided all the research and literature Dr . Bates relied
upon in stating her expert opinions . He further argued that these omissions left
him ill-prepared to counter Dr. Bates' testimony that sexual intercourse does not
destroy the hymen.
In commenting, we noted "the studies referred to by Dr. Bates were not
made in connection with the present case . Further, there is no requirement that
an expert tender each and every article or study upon which an opinion is
based . . . the Commonwealth was not required under either the discovery order or
the criminal rules to provide Appellant with all of Dr. Bates reading material." Id.
at 574.
In concluding, we noted, "we cannot accept Appellant's contention that he
was unduly surprised by Dr. Bates' testimony . Her report clearly stated that L.T.
had a hymen. Further Dr. Bates concluded that the physical examination in
conjunction with the history L.T . provided was indicative of sexual abuse.
Reading the report in it entirety, Appellant could only have concluded that Dr.
Bates was of the opinion that a female could engage in sexual intercourse and
16
still have a visible hymen ." Id. at 574.
We last touched on the subject in Vires v. Commonwealth , 989 S .W .2d
946 (Ky. 1999) . In Vires, Kentucky State Police Detective Timothy Hogg was
allowed to testify as an expert in the field of accident reconstruction, even though
he had prepared no opinion - thus his opinion was not given to the defense prior
to trial . In fact, Detective Hogg did not express any reconstruction opinions, but
rather demonstrated the scene of the accident by photographic exhibits .
Photographs depicting the skid marks in the scene along with the complete
police investigative file of the accident had been made available to Appellant's
counsel prior to trial. Even so, Appellant contended it was prejudicial error to
permit the detective to testify as an expert in the field of accident reconstruction
where no opinion had been provided . In addressing the question presented, we
again distinguished Barnett by noting that in Barnett , "the expert's opinion which
was based not only upon the premise contained in the report, but also upon an
additional and necessary premise which was that Barnett may have washed
away the victim's blood . This premise in turn was based upon the finding of light
blood traces found on Barnett's hands and arms which included the necessary,
but undisclosed fact, that Barnett had an opportunity to wash his hands . This
court noted that without prior knowledge of the expert's opinion, Barnett had no
reason to develop proof that the puddle near the murder scene was
undisturbed or that Barnett's hands, arms and clothing were not wet from
washing so as to refute the experts opinion .
In the present case, Detective Hogg did not rely upon any undisclosed
17
premise as the basis for his opinion and all facts and supporting materials relied
upon by him were provided to defense counsel . There being no undisclosed
premise against which the Appellant claimed a need to defend himself, the trial
court did not err in allowing Detective Hogg to testify as to his opinion based
upon the results of the investigation ." Vires , at 948, citing Milburn , 788 S .W. 2d at
256 .
Here the witness, Dr. Riley, testified in regards to the science of DNA and
what he referred to as "wear DNA" deposits and explained to the jury when, how,
and why you would or would not expect to find "wear DNA" on such materials as
towels . Unlike Barnett, Dr. Riley did not attempt to go outside the science in his
report to depend on the victim's actual use of the towel for the jury - he merely
gave the jury the expected scientific parameters for when you would or would not
expect to find "wear DNA" or traces thereof, from a hand use . He relied on no
additional premise outside the expected science of the subject, like Collins and
Milburn. Dr. Riley did not comment on what L.P. did or did not do as was found
in Barnett. That was left to L. P .'s testimony .
Thus, we find no error or constitutional implications in the rulings of the
court .
For the foregoing reasons we affirm the judgment of the trial court.
All concur.
COUNSEL FOR APPELLANT :
Elizabeth B . McMahon
Assistant Public Defender
Office of the Louisville Metro Public Defender
200 Advocacy Plaza
719 West Jefferson Street
Louisville, KY 40202
COUNSEL FOR APELLEE :
Gregory D . Stumbo
Attorney General of Kentucky
Perry T . Ryan
Assistant Attorney General
Office of Criminal Appeals
Attorney General's Office
1024 Capital Center Drive
Frankfort, KY 40601-8204
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