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Blakeman v. Commonwealth10/21/2004
he scope of the evidence held admissible in Robinson v. Commonwealth, Ky., 926 S.W.2d 853 (1996). Moreover, it was the defense who introduced these facts during Blakeman's closing arguments. The Commonwealth was simply rebutting the arguments that his prior convictions did not support a long sentence.
III. Discovery - Blood Alcohol
Blakeman argues that the trial judge erred by not granting a mistrial because of the failure of the Commonwealth to comply with a discovery order by virtue of providing the defense with the blood test results only four days before trial in violation of RCr 7.24. Blakeman claims that this issue is preserved by the pretrial motion for discovery and a motion to suppress the blood alcohol test based on the alleged late compliance with the discovery order.
On the morning of trial, a hearing was held,on the motion to exclude the blood alcohol test. Defense counsel claimed that two discovery motions had been filed without a response and that the test results were only received within the last four days. The Commonwealth responded that it had produced the report the same day it was received and that there was no discovery deadline. It contended that Blakeman had known for sometime that the prosecution intended to introduce evidence of his blood alcohol and that the discovery had been interrupted by his initial guilty plea as well as subsequent procedural activities. The trial judge overruled the motion to exclude the evidence.
The prosecution presented testimony about the blood alcohol test results. Blakeman did not object to the introduction of such evidence.
A review of the record indicates that there was no motion for a mistrial, only a motion to exclude evidence. Nor does the record contain a discovery order. Further, Blakeman never sought a continuance and did not identify what, if anything, would have been done differently had the report been received earlier. It is within the discretion of the trial judge to permit the discovery or inspection of materials not previously disclosed as well as the option of granting a continuance or the prohibition of the introduction of evidence not previously disclosed. See Neal v. Commonwealth, Ky., 95 S.W.3d 843 (2003); Berry v. Commonwealth, Ky., 782 S.W.2d 625 (1990); RCr 7.24(9). Our review of the record does not disclose an abuse of discretion by the trial judge in refusing to exclude the test result.
Blakeman received a fundamentally fair trial and there was no violation of either the state or federal constitutions.
The judgment of conviction is affirmed.
All concur.
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