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Haley v. Commonwealth9/22/2005
that another person committed the offense with which he is charged.' Eldred v. Commonwealth, 906 S.W.2d 694, 705 (Ky. 1994); see Harvey v. Commonwealth, 100 S.W.2d 829, 830 (Ky. 1937) ("It has been uniformly held by this court that one accused of a crime may introduce evidence tending to prove that the crime was committed by another, subject, however, to the right of the Commonwealth to rebut such evidence."); Kelly v. Commonwealth, 83 S.W.2d 489, 490 (Ky. 1935); cf. McGregor v. Hines, 995 S.W.2d 384, 388 (Ky. 1999) ("It is crucial to a defendant's fundamental right to due process that he be allowed to develop and present any exculpatory evidence in his own defense, and we reject any alternative that would imperil that right."). A trial court may only infringe upon this right when the defense theory is `unsupported,' Ispeculat ,' and `far-fetched' and could thereby confuse or mislead the jury. Commonwealth v. Maddox, 955 S.W.2d 718, 721 (Ky. 1997).
Federal courts have also specifically recognized the importance of the defendant's right to produce evidence that a third party actually committed the crime. E.g., United States v. Crosby, 75 F.3d 1343, 1347 (9th Cir.1996) ("fundamental standards of relevancy require the admission of testimony which tends to prove that a person other than the defendant committed the crime that is charged") (quotation omitted); United States v. Blum, 62 F.3d 63, 68 (2d Cir.1995); (reversing when trial court prevented defendant from introducing evidence that third party committed crime); United States v. Stevens, 935 F.2d 1380, 1384 (3d Cir.1991) (reversing when trial court prevented defendant from introducing evidence that third party had perpetrated another crime so similar in modus operandi to the crime with which defendant was charged as to identify third party as perpetrator); Pettiiohn v. Hall, 599 F.2d 476, 480 (1 st Cir.1979) ("Evidence that someone other than the defendant was identified as the criminal is not only probative but critical to the issue of the defendant's guilt.").
Beaty, 125 S.W.3d at 207-208. We noted, however, that "evidence is not automatically admissible simply because it tends to show that someone else committed the offense. . . . [For instance,] in a homicide case, a defendant is not entitled to parade before the jury every person who bore some dislike for the victim without showing that the [alleged alternate perpetrator or `aaltperp'] at least had an opportunity to commit the murder." Id. at 208. Before evidence of an "aaltperp" can be introduced, it must be shown that this other person had both motive and opportunity to commit the crime. Id. That is not so in this case.
Here, the identity of the caller is unknown. The time and date of the call is unknown. It could be argued that the caller was Bill Bond, in which case a motive of protecting his sister, Kathy Haley, existed, but that still would not establish an opportunity. Absent both elements, motive and opportunity, evidence of an "aaltperp" is inadmissible. In this case, because there was no evidence introduced that established both elements, the tape recording was properly excluded, even had it not been "hearsay" - which it was. We find no abuse of discretion here.
PRIOR SHOOTING
Appellant next argues the trial court erred by allowing evidence regarding a prior shooting into the house of Michael and Rhonda Dozier. Ms. Dozier testified that, on October 6, 2002, she and Michael were at home in the early morning hours when someone came onto the back road and shot at their trailer. Two bullets were found in the living room door, one in their son's bed, one in the refrigerator door, and one in the bathroom wall.
Ms. Dozier then testif
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