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Commonwealth v. Leahy2/7/2003
NOT TO BE PUBLISHED
OPINION REVERSING
This matter is before us on discretionary review from a November 20, 2001, decision of the Graves Circuit Court reversing the Graves District Court's judgment convicting Paul Leahy (hereinafter"Leahy") of Driving Under the Influence , first offense. We accepted discretionary review in this matter to decide whether the use of a video-conferencing system by the trial court violates the Confrontation Clauses of the United States and the Kentucky Constitutions. Having determined that the system utilized does not violate the accused's right to face-to-face confrontation, we reverse the circuit court's decision.
Leahy was arrested on July 19, 2000, and charged with DUI, first offense, pursuant to KRS 189A.010. Following a bench trial on November 20, 2000, the trial court entered a guilty verdict under the per se portion of the statute and sentenced Leahy on November 29, 2000. Leahy pursued an appeal to the circuit court, arguing that the district court's decision, over his objections, to admit the testimony of Madisonville Crime lab employee Phil Wilson via a closed circuit television system and telephone violated his right to confront the witnesses against him. Special Judge David H. Jernigan reversed Leahy's conviction in an opinion rendered November 21, 2001, relying upon two prior Kentucky Supreme Court cases dealing with child witnesses and holding that"the use of closed circuit television to present testimony at trial, absent statutory authority, violates the Defendant's constitutional rights." We granted the Commonwealth's motion for discretionary review of the matter, and this appeal followed.
On appeal, the Commonwealth relies upon the Kentucky Supreme Court's decision in Bolen v. Commonwealth, Ky., 31 S.W.3d 907 (2000), arguing that the circuit court's decision in this matter is directly contradictory to a binding opinion. In Bolen, an appeal from McCracken Circuit Court, the Supreme Court noted that the appellant made three additional claims of error, each of which he failed to preserve, including whether the admission of expert testimony through closed circuit television violated the Confrontation Clause. The court stated that" e have carefully reviewed these and conclude that each one is without merit and none deserve to be discussed further." Id.at 910.
On the other hand, Leahy continues to rely upon the Kentucky Supreme Court's decisions in Commonwealth v. Willis, Ky., 716 S.W.2d 224 (1986) and George v. Commonwealth, Ky., 885 S.W.2d 224 (1999) to support his proposition that his constitutional rights were violated. Additionally, he argues that the operational failure of the system prejudiced him. Further, he disputes the Commonwealth's reliance upon the Bolen decision, arguing that the precedential value of the dicta is limited, if it exists at all. We disagree with Leahy's propositions.
The Supreme Court addressed the standard of review applicable in this matter in English v. Commonwealth, Ky., 993 S.W.2d 941 (1999).
The standard of review is whether there has been an abuse of that discretion. Partin v. Commonwealth, Ky., 918 S.W.2d 219, 222 (1996). The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. 5 Am.Jur.2d Appellate Review ' 695 (1995); cf. Kuprion v. Fitzgerald, Ky., 888 S.W.2d 679, 684 (1994). Id. at 945.
Therefore, we must reverse the circuit court's decision if we determine that the district court did not abuse its discretion in allowing the testimony of Phil Wilson via closed circuit television system.
The video-conferencing system at issue
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