Haley v. Commonwealth9/22/2005
pable error.
CONTINUANCE
In this argument, Haley contends the trial court abused its discretion in denying him a continuance on the morning of trial. He argues that Rhonda Dozier had a diary or log, and it was not provided to him until Tuesday, with the trial commencing on Thursday. He contends he needed a continuance to determine how to use this document in his examination of Rhonda Dozier. The citations to the record provided by Haley are not audible on the tapes of the trial, and the "diary" was not introduced into evidence, nor is it part of the record. Haley concedes that the substance of the document related to the feuding between the Dozier's and Haley's, but argues that a brief continuance would have been proper.
On request for a continuance, a trial court is to consider seven factors in deciding whether to grant or deny a motion for continuance. Those factors are: (1) the length of delay; (2) previous continuances; (3) inconvenience to litigants, witnesses, counsel, and the court; (4) whether the delay is purposeful or caused by the accused; (5) availability of other competent counsel; (6) complexity of the case; and (7) whether denying the continuance will lead to identifiable prejudice. Snodgrass v. Commonwealth, 814 S.W.2d 579, 591 (Ky. 1991). "The granting of a continuance is in the sound discretion of a trial judge, and unless from a review of the whole record it appears that the trial judge has abused that discretion, this court will not disturb the findings of the court." Williams v. Commonwealth, 644 S.W.2d 335, 337 (Ky. 1982).
Here, we do not find an abuse of discretion. Haley did not designate the time needed. This factor, considering the jury had been summoned and was waiting, must weigh in favor of denial of a continuance. As the record indicates no previous continuance, that factor is neutral. The next factor, inconvenience to all concerned, clearly weighs in favor of denial of a continuance. The remaining factors, absent the question of prejudice, are considered neutral. As to prejudice, Haley has set forth nothing to establish a prejudice. From the record before us, we cannot find an abuse of discretion. Any error in this instance however, would be considered harmless.
TAPE RECORDING
Appellant next argues the trial court erred by excluding a tape recorded message, a "tape recording of a duplicated duplicate," that was possible evidence of an alternate perpetrator. The tape purported to be a recording of a telephone message from Bill Bond, brother of Kathy Haley, ex-wife of the defendant. The substance of the message was "call Mike and his buddy and tell them I'll be at their house in about ten hours." There was no evidence introduced as to how the call was made, when it was made, to whom, or how it was obtained. Further, no one, including the person who turned the recording over to the police, could identify who the caller was.
The Due Process Clause affords a criminal defendant the fundamental right to a fair opportunity to present a defense. Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 2146, 90 L.Ed.2d 636 (1986); Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973). The exclusion of evidence violates that constitutional right when it "significantly undermine fundamental elements of the defendant's defense." United States v. Scheffer, 523 U.S. 303, 315, 118 S.Ct. 1261, 1267-1268, 140 L.Ed.2d 413, (1998). A proper defense includes the right to introduce evidence that someone other than the accused committed the crime. Bea v. Commonwealth, 125 S.W.3d 196, 207 (Ky. 2003).
"We have been adamant that a defendant `has the right to introduce evidence
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