Commonwealth v. Newkirk

Decision Date21 November 2014
Docket NumberNO. 2011-CA-001819-MR,2011-CA-001819-MR
CourtKentucky Court of Appeals




ACTION NOS. 11-CR-000462 AND 11-CR-002576



ACREE, CHIEF JUDGE: This matter presents two substantive issues for our consideration, namely: (1) whether the Jefferson Circuit Court erroneously deemed inadmissible certain witness testimony describing the contents of a destroyed surveillance video, and (2) whether that court abused its discretion when it declined to grant the Commonwealth a continuance. Because the evidence suppressed by the circuit court is expressly admissible under Kentucky Rules ofEvidence (KRE) 402 and 1004, we reverse the court's September 14, 2011 order dismissing the case.

I. Facts and Procedure

An indictment returned by the Jefferson County Grand Jury stated Appellee Garry Newkirk, on November 7, 2010, committed second-degree burglary when he knowingly and unlawfully entered Pearlette Isaac's apartment and removed items belonging to her. Detective Kevin Lewis investigated.

A video surveillance system at the apartment complex captured the events. Isaac, Detective Lewis, and the apartment complex's manager viewed the surveillance video together. Detective Lewis observed on the tape a white male wearing blue jeans and a gray long-sleeve shirt using tools to pry open Isaac's window and gaining access to her apartment. The male entered the apartment through the window, remained inside for a short time, and left through the apartment complex's front door. The video did not clearly reveal facial features, scars, or tattoos.

Upon viewing, Isaac believed it possible that the man in the video was an acquaintance, Daniel Newkirk. Daniel Newkirk and Appellee Garry Newkirk are brothers. Detective Lewis interviewed Daniel. Daniel denied any involvement in the burglary, but admitted to being at the apartment complex earlier that same day with Garry. Daniel claimed that after visiting the apartment complex he and Garry went to a nearby Circle K gas station. They soon parted ways. Later that evening, Garry called Daniel to inquire whether Daniel wanted to purchase itemsGarry supposedly took from Isaac's apartment. Garry admitted to Daniel that he "hit that house" by climbing through Isaac's window. Daniel informed Detective Lewis that, on the day of the burglary, Garry was wearing a gray long-sleeve shirt, light-colored blue jeans, and white Reebok-brand tennis shoes.

Detective Lewis obtained the surveillance video from the Circle K which corroborated Daniel's account that, shortly before the burglary, Daniel and Garry were together. The clothes Detective Lewis saw Garry wearing in the Circle K surveillance video matched the description given him by Daniel; both what Garry was wearing and what Daniel described were similar to the clothes worn by the man in the surveillance video burglarizing Isaac's apartment. Garry was subsequently indicted on the charge of second-degree burglary.

At a pretrial hearing on August 15, 2011, both Newkirk and the Commonwealth requested a speedy trial date. The circuit court obliged and set the case for trial beginning on September 6, 2011. Also at this hearing, the Commonwealth revealed to the court that the apartment complex's surveillance video was unavailable.1 The Commonwealth explained Detective Lewis and Isaac had reviewed the video, but the surveillance system could not make a copy and the system then automatically recorded over the video after one week. Newkirk verbally objected to the admissibility of any testimony regarding the missing videotape.2 The circuit court deferred this issue until trial.

Newkirk never memorialized in writing what was effectively a motion in limine, nor did the Commonwealth ever submit anything in writing in opposition or stating its position on the admissibility of testimony about the missing video's contents.

On September 6, 2011, both parties announced ready for trial. The circuit court entertained several motions by Newkirk. One was the verbal motion in limine to exclude all testimony relating to the surveillance video. Newkirk attacked the admissibility of such testimony on several grounds including the Sixth Amendment's Confrontation Clause, hearsay, lack of personal knowledge, and improper opinion testimony. In response, the Commonwealth argued testimony of the video's contents did not constitute hearsay, no witness would offer lay opinion testimony but would simply recount what he or she saw in the video, and witness testimony was the best evidence available in light of the unavailable video. The circuit court sustained Newkirk's motion and excluded all testimony, and any conclusions that could be drawn therefrom, regarding the contents of the unavailable apartment complex surveillance video.

The parties then conducted individual voir dire of the jury panel.3 This lasted approximately five hours. The next morning, September 7, 2011, theCommonwealth sought reconsideration of the circuit court's ruling prohibiting testimony about the videotape; that effort was unsuccessful. The Commonwealth then announced it had failed to secure an essential witness, Daniel Newkirk, and moved to continue the trial to allow time to secure the witness. Newkirk opposed any continuance. The circuit court denied the Commonwealth's motion.

Faced with going to trial lacking the defendant's brother as a witness and unable to present Detective Lewis's testimony about the videotape, the Commonwealth moved to dismiss the case without prejudice. The Commonwealth also asked the circuit court to put in writing its ruling regarding the admissibility of testimony about the videotape. The request was granted and the ruling was combined with the denial of the motion to continue the trial, and incorporated in the order granting the motion to dismiss without prejudice.

With regard to the evidentiary ruling, the order states only:

The Commonwealth failed to cite any legal basis for its offering of testimony concerning the contents of a videotape that it failed to preserve for the purposes of trial and failed to produce despite repeated requests during discovery. For the reasons stated on the record, the Court ruled the absent tape and any testimony concerning its contents would not be admissible at trial.

(Order, September 14, 2011, at page 1). The Commonwealth appeals from this order.4 We will set out the circuit court's reasoning, as well as the parties' arguments before the circuit court, as necessary in our analysis.

II. Standard of Review

We review evidentiary rulings for abuse of discretion. Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 725 (Ky. 2009) (citation omitted). The circuit court's decision to deny a continuance is also reviewed for an abuse of discretion. Slone v. Commonwealth, 382 S.W.3d 851, 855 (Ky. 2012). "An abuse of discretion occurs when a 'trial judge's decision [is] arbitrary, unreasonable, unfair, or unsupported by sound legal principles.'" Baptist Healthcare Systems, Inc. v. Miller, 177 S.W.3d 676, 684 (Ky. 2005) (citation omitted).

III. Analysis

The Commonwealth claims the circuit court erred in two respects: (1) by excluding witness testimony of the contents of the absent surveillance video; and (2) by denying the Commonwealth's motion for a continuance. We will address each argument in turn.

A. Excluding Evidence of the Destroyed Videotape

To affirm the circuit court, we must know the basis of its ruling. The order states only that the evidence was inadmissible "[f]or the reasons stated on the record[.]" And so we turn to the record. What soon will be obvious is that there was no mention at the circuit court of the critical, applicable rule of evidence - KRE 1004. That rule states, in pertinent part: "The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if . . . [a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith . . . ."

With that rule in mind, we examine what the court and the parties verbally discussed, for there is no written motion and no written response; the only written record regarding this evidentiary issue is the skeletal language of the order.

(1) The basis of the circuit court's evidentiary ruling.

The evidentiary issue arose four times in hearings on three separate days. The first of these occasions was during the prehearing conference on August 15, 2011. Newkirk expressed concern that the unavailability of the videotape "might create some other issues with respect to [the Commonwealth's] allegation that they think that person [on the missing videotape] might have looked like [Newkirk and] I don't think that their testimony that they thought that was him would be admissible." (VR 8/15/11; 10:27:30 - 10:28:03). Clearly, Newkirk wanted to exclude testimony about the videotape, but he offered no legal basis for ruling such testimony inadmissible. The circuit court stated that this issue could betaken up on the morning of trial. This part of the record therefore offers no insight as to the basis for excluding the evidence.

Just as the court suggested, Newkirk renewed his motion to exclude the evidence on September 6, 2011, prior to voir dire of the jury. He argued testimony about the videotape would be inadmissible hearsay under KRE 801(c) and 802, improper opinion testimony not based on personal knowledge under KRE 701 and 702, and a violation of his rights under the Confrontation Clauses of the federal and Kentucky constitutions. The circuit court was initially persuaded by the Confrontation Clause argument; later, the circuit court would state that it was not basing its ruling on any of these rules. Nevertheless, the court granted the motion, basing its ruling on a variety of factors.

The circuit court first noted...

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