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Rowe v. Commonwealth7/6/2001
ompanion was "a convicted felon." Rowe's counsel objected and moved the trial court for a mistrial, which was denied. Rowe's counsel also moved the trial court to admonish the jury that the Commonwealth's Attorney's questions and comments were irrelevant and not to be considered. The trial judge also denied that motion and merely told the Commonwealth's Attorney, "I think you've gone far enough with that line of questioning."
These questions by the Commonwealth's Attorney concerning Hall's criminal history were clearly improper and prejudicial to Rowe. In its brief, the Commonwealth argues that, " ny negative inference to be drawn from Mr. Hall's prior record then could have only benefitted appellant." This argument is unsupported and without merit.
In Terry v. Commonwealth, the defendant presented an alibi witness, who on cross-examination admitted that she knew three men who were in jail at that time. In his closing argument, the prosecutor stated that he was familiar with the three men he had asked the alibi witnesses about and that they were "rotten to the core." The Court held that the defendant "was entitled to have his case tried without the Commonwealth's unauthorized assault upon one of his alibi witnesses." At a new trial of the case sub judice, the Commonwealth should refrain from such attacks.
Lastly, Rowe claims the trial court erred by admitting into evidence hearsay testimony concerning the incident. Rowe argues:
At trial, Dr. Poore testified that according to his notes made at the time . Mr. Henson was examined, Mr. Henson told him that "he was just standing around - someone he didn't know came up and hit him in the face." Dr. Poore also testified that the nurse's notes said Mr. Henson told her he was hit by an elbow. This hearsay testimony was improperly admitted into evidence.
The applicable hearsay exception is KRE 803(4), which states:
Statements made for the purpose of medical treatment or diagnosis and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to treatment or diagnosis [emphasis added].
Rowe argues that this hearsay testimony should not have been admitted because it was not pertinent to Henson's treatment and that it was prejudicial because it negated his defense of self-defense. To the extent the statements made by Henson to Dr. Poore were made for the purpose of describing how his injury occurred, we hold this evidence to be admissible pursuant to the widely-accepted exception to the hearsay rule pertaining to statements made for the purpose of medical treatment or diagnosis. The fact that the victim was hit unexpectedly and by a forearm and/or an elbow may have been of benefit to the physician in the treatment or diagnosis of the injury.
The judgment of the Calloway Circuit Court convicting Rowe of assault in the second degree is reversed and this matter is remanded for further proceedings consistent with this Opinion.
ALL CONCUR.
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