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Gillum v. Commonwealth8/26/2004
ant and gave a description of the car.
On cross-examination, Ms. Johnston testified that there was a younger person sitting in the passenger seat of Appellant's white car. She also stated that it appeared that the driver of the white car did not see the red truck, and that the accident did not appear to be intentional.
Captain Jim Smith testified that he had heard the report of the accident and the license plate number of the alleged perpetrator over his cruiser radio, and that he had driven to the Indian Oak Trailer Court to investigate. At the trailer park, he observed a young man fixing a vehicle with a matching license plate and damage consistent with the accident. The young man stated that he was not the driver of the car and that a woman owned the car. Captain Smith told the young man that he needed to speak with the owner of the car because the vehicle had been involved in an accident. At that time, Smith observed Appellant standing in the trailer drinking a longneck Budweiser beer. Over Appellant's objections at trial, Captain Smith was allowed to testify that when he stepped onto the porch of the trailer to speak to Appellant, Appellant stated that Smith "needed a search warrant" to enter the trailer.
Captain Smith replied that Appellant could be detained until he determined "what is going on." Smith then testified that he told Appellant that he had been informed that the driver of the white car had been involved in an accident. Appellant responded that he had been drinking at his trailer all afternoon and had not driven.
Smith further testified that Appellant was belligerent, refused to produce his driver's license, and that he would not come outside of the trailer. Smith testified that Appellant stated that "this wasn't his first rodeo" and that he could be arrested for alcohol intoxication if he stepped outside. Smith testified that Appellant appeared to be under the influence of alcohol because he had slightly slurred speech and red, glassy eyes. Another officer, John T. Coleman, also arrived at the trailer park and testified that Appellant was drinking. Officer Coleman stated that Appellant said, "If it was me, what am I looking at" and "what is my punishment going to be."
Appellant exercised his Fifth Amendment right not to testify at trial. Upon appeal, he argues that the trial court committed the following trial errors : (1) The trial court violated his right to due process by admitting inadmissible prior bad acts evidence, and (2) the trial court improperly allowed the Commonwealth to elicit testimony which amounted to improper comment on Appellant's right to remain silent.
Additional facts will be presented as necessary for the development of these issues.
Appellant argues that he was denied due process by admission of testimony concerning his alcohol use and statements he made concerning his prior criminal record. Prior to trial, Appellant filed a Motion in Limine objecting to the evidence under KRE 404(b) and KRE 403. Appellant claimed that since he was not charged with DUI, his consumption of alcohol after the accident was not relevant to the charged offenses. The motion was overruled on the grounds that it was Appellant's alibi. At trial, Captain Smith recounted Appellant's statements and the events that transpired after finding him at his trailer. In response to the Commonwealth's question concerning what Appellant had said, Captain Smith testified that Appellant had stated that he had been at his trailer all afternoon drinking and that Appellant had stated that this was not his "first rodeo." Captain Smith also testified that he had observed Appellant drinking and in a state of intoxication. Appellant a
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