Haley v. Commonwealth9/22/2005
tting guns and ammunition unrelated to the crime; (2) in not granting Appellant a continuance; (3) in excluding a tape recorded message; (4) in allowing evidence regarding a prior shooting into the Dozier residence; and (5) in admitting a recording of Appellant's prior statement.
We will address each claim separately.
GUNS
After reviewing the record, we find Appellant failed to preserve this objection. Pursuant to RCr 10.26, appellate courts may review unpreserved allegations of error only when the unpreserved issues are palpable errors that affect the substantial rights of Appellant, i.e., a substantial possibility exists that the result of the trial would have been different. Partin v. Commonwealth, 918 S.W.2d 219, 224 (Ky. 1996); see also Bvrd v. Commonwealth, 825 S.W.2d 272, 276 (Ky. 1992).
Further, relief may be granted only upon a determination that the alleged error has resulted in manifest injustice. Brock v. Commonwealth, 947 S.W.2d 24 (Ky. 1997). Such a showing requires that "the error must seriously affect the fairness, integrity, or public reputation of judicial proceedings." Id. at 28; United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993). Stated differently, " rror rises to this level only when it is so shocking that it seriously affected the fundamental fairness and basic integrity of the proceedings conducted below." United States v. Tutiven, 40 F.3d 1, 7-8 (1 St Cir. 1994). Additionally, review for a palpable error is discretionary. Olano at 732.
Here, there is neither error, nor prejudice. In a recent decision, we noted that introduction of evidence "is grounded in a logical demand that, when offering a tangible object into evidence, a party should show, as a preliminary matter, its connection to the incident involved in the litigation." R. Lawson, The Kentucky Evidence Law Handbook, § 11.00 , at 840. We have upheld the admission of weapons into evidence based on eyewitness testimony that the weapon was the one used in the commission of the offense, Beason v. Commonwealth, 548 S.W.2d 835, 836-37 (Ky.1977); that it was of the same size and shape as the weapon used in the commission of the offense, Sweatt v. Commonwealth, 550 S.W.2d 520, 523 (Ky.1977); or that it was found at the scene of the offense and was capable of inflicting the type of injury sustained by the victim, Barth v. Commonwealth, 80 S.W.3d 390, 402 (Ky.2001); Grundy v. Commonwealth, 25 S.W.3d 76, 79-80 (Ky.2000)." Gerlaugh v. Commonwealth, 156 S.W.3d 747 (Ky. 2005).
Moreover, in Barth, we found "evidence could be admitted if: it was found at a time and a place furnishing reasonable ground to connect it in some way with the [incident]. The proof need not positively show the connection; but there must be proof rendering the inference reasonable or probable from its nearness in time and place or other circumstances." 80 S.W.3d at 402 (citing Higgins v. Commonwealth, 134 S.W. 1135, 1138 (Ky. 1911). See also Grundy v. Commonwealth, 25 S.W.3d 76, 79-81 (Ky. 2000) (holding admissible a fist-sized piece of concrete found a few days after supposedly being used in an alleged assault)).
Here, a KSP firearms expert testified, in relevant part, that (1) the bullets removed from Dozier's body were from a.22 caliber weapon and (2) one of the.30/.30 spent shells found at the railroad tracks had been cycled through the same gun as the.30/.30 live round found at Haley's home. Thus, the introduction of Haley's.22 caliber weapons and his.30/.30 weapons had a "reasonable ground to connect it in some way with the [incident]." Barth, supra, 80 S.W.3d at 402. Therefore, the admission of Haley's weapons does not rise to the level of pal
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