Copley v. Com., 91-SC-850-MR

• Decision Date: 18 March 1993
• Docket Number: No. 91-SC-850-MR,91-SC-850-MR
• Citation: 854 S.W.2d 748
• Parties: Larry COPLEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 748

854 S.W.2d 748

Larry COPLEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 91-SC-850-MR.

Supreme Court of Kentucky.

March 18, 1993.

Rehearing Denied July 1, 1993.

Joel R. Smith, Wilson, Smith & Hoover Law Offices, Jamestown, for appellant.

Chris Gorman, Atty. Gen., Vickie L. Wise, Asst. Atty. Gen., Frankfort, for appellee.

WINTERSHEIMER, Justice.

This appeal is from a judgment based on a jury verdict which convicted Copley of first-degree manslaughter and sentenced him to twenty years in prison.

The issues presented are whether the jury panel and jury selection process was proper; whether the admission into evidence of testimony of various witnesses and exhibits including photographs was proper; whether it was error to preclude the defendant from impeaching the testimony of a Commonwealth witness; whether the admission of rebuttal testimony was reversible error; whether there was prosecutorial misconduct and whether it was error to overrule a motion for a new trial.

Copley was charged with the shooting death of his ex-girlfriend's current boyfriend in a shopping center parking lot. He relied on the defense of self-protection. Testimony at trial from various witnesses indicated that both Copley and the victim had guns pointed at each other in the parking lot. Just prior to the shooting Copley handed his weapon back to his nephew and the victim got into his car and was seated in the driver's seat. Copley got the weapon back and shot the victim twice behind the left ear at close range. Several witnesses testified that Copley stated immediately prior to the shooting "He's done pulled a gun on me. If I kill him now it's self defense." Upon conviction, this appeal followed.

There was no reversible error in the trial judge's actions concerning the initial selection of the jury panel or the jurors subsequently accepted or rejected. There is no requirement that the initial panel must be first exhausted. Jury selection was conducted in accordance with K.R.S. 29A.060(10) and RCr 9.30(2) and the directions of Asher v. Commonwealth, Ky.App., 614 S.W.2d 249 (1980). Copley's contention that it is improper to merge a new venire with an existing panel is without merit.

The argument that the excusal of the elementary school principal prior to voir dire was improper is without merit. Copley has not made the basis of his claim for error a part of the record in this case. A claim which is unsupported by the record cannot be considered on appellate review. Ford v. Commonwealth, Ky., 472 S.W.2d 261 (1971). This Court will not search the record in order to find error which counsel has failed to present. Young v. Newsome, Ky., 462 S.W.2d 908 (1971).

The trial judge did not commit reversible error by excusing another juror who was principal at the Jamestown Elementary School. The trial judge did not abuse his discretion under the circumstances. K.R.S. 29A.100.

Copley also objected to employees of Union Underwear being present on the jury panel. He argues that prejudice occurred as a result thereof because both the victim and his girlfriend were employed at the underwear plant. Such an association of itself is insufficient to excuse a juror. There was testimony that between three and four thousand persons are employed at the plant. Copley has failed to demonstrate that the refusal to discharge the fellow employees amounted to reversible error. Polk v. Commonwealth, Ky.App., 574 S.W.2d 335 (1978).

A careful examination of the record indicates that the trial judge did not err when he overruled the objections of the defense to the admission of photographs, dismissal of the indictment and the motion to dismiss. In addition, the testimony of Nancy Roy, Brenda Fox and Officer Barrett was admissible. Copley did not suffer undue prejudice as a result of the exclusion of part of his taped statement.

In regard to the photographs, Copley objected to their introduction claiming that a proper foundation had not been laid. On appeal, he also argues that the introduction of the photos was solely for the purpose of inflaming the jury.

The prosecution presented sufficient evidence to show that the photos were taken at the scene and there was no tampering by police. The limited check by emergency medical technicians to determine the condition of the victim's vital organs does not support Copley's theory of tampering. The claim that the photos should have been inadmissible because they were gruesome is without merit. Gruesomeness alone cannot be the basis for exclusion of photos. Epperson v. Commonwealth, Ky., 809 S.W.2d 835 (1991). The photos showed the position of the body in the automobile and the position of the gun barrel resting down between the bucket seats which discredited Copley's claim of self-defense. This is not a situation such as existed in Holland v. Commonwealth, Ky., 703 S.W.2d 876 (1986). The claim that the photographs were taken somewhere other than the crime scene was without foundation.

Copley argues that the testimony of the coroner and of one of the investigating officers was suspect because they prepared notes and reports of their findings and these notes and pictures were not provided during discovery. In both instances the prosecution was unaware that such materials existed, and Copley's counsel was afforded an opportunity to review the photographs and the reports prior to the testimony. Copley has failed to demonstrate that he suffered any prejudice as a result of the documents. The coroner did not introduce any photographs at trial and the officer did not rely on the so-called daily log notes. Any possible error was totally nonprejudicial. RCr 9.24.

It was not reversible error for the trial judge to refuse to dismiss the indictment because the prosecution had failed to provide notice of test results performed on the weapon found in the victim's car. Copley's motion for discovery included a request for any scientific tests performed in the case. During the testimony of Detective Bailey, Copley objected when the prosecution asked whether a fingerprint analysis of the victim's weapon had been conducted. The officer responded affirmatively. A hearing was held outside the presence of the jury to review the police report. The officer had dusted for fingerprints but found none. He had omitted that information from his report. The officer stated that he advised defense counsel that no prints had been found on the weapon. A lab test was not performed under the circumstances. The trial judge prohibited the introduction of the test results and denied the motion to dismiss. Copley did not request an admonition. The trial judge's ruling was correct. Since test results were not reduced to writing, it is not error that the prosecution failed to provide such evidence. Cf. Kendricks v. Commonwealth, Ky., 557 S.W.2d 417 (1977). Any error was harmless.

Copley also argues that reversible error occurred when the prosecution was allowed to admit portions of an audio tape of his statement. He claims that the exclusion prevented him from proving his defense that the victim was the aggressor. The trial judge permitted the prosecution to excise portions regarding a conversation for an alleged contract for death on the basis of hearsay. The Commonwealth concedes the portion of Copley's statement concerning threats and solicitations made by the victim and Donna Janes should not have been excised from Copley's taped statement. However, the error did not unduly prejudice the defendant and was harmless. RCr 9.24.

Immediately following the denial of the defense request, counsel informed the trial judge of his intention to call a witness, Phillip Sears, regarding the victim's and his girlfriend's attempted acts of solicitation for the murder of Copley. Sears' testimony that the victim and Donna Janes approached him on three separate occasions to solicit the defendant's murder was far more detailed than what Copley explained in his taped statement. In addition, four other witnesses also submitted testimony to that effect. The defense urged by Copley was adequately presented to the jury. The refusal of the trial judge to permit the jury to hear the taped statement in its entirety was harmless beyond a reasonable doubt. RCr 9.24.

Copley also contends that the prosecution made improper comments which implied the defense witness Sears and Copley had been involved in illegal marijuana transactions. He claims that the implications of "business dealings" were advanced through the testimony of the victim's girlfriend.

It was defense counsel who first made the jury aware of witness Sears' financial problems and the fact that the girlfriend knew that he had no money. Defense counsel also asked Sears what kind of business dealings he had with Copley. The Commonwealth maintains that the reason for asking the question was to discover bias on the part of the witness. The trial court sustained defense counsel objections and gave an admonition to the jury. There was no error. Hardy v. Commonwealth, Ky., 719 S.W.2d 727 (1986).

It was not error for the trial judge to admit the testimony of a witness during rebuttal in response to the defense claims of threat. The testimony was relevant to the issue of who was the aggressor. There was no error.

Copley was not denied the opportunity to impeach three witnesses who testified on behalf of the prosecution. Copley cross-examined the girlfriend in detail and had considerable opportunity to impeach the witness. Copley had ample occasion to impeach witness Smith regarding bias and inconsistent statements. Although unsuccessfully attempting to impeach Smith for bias, Copley was allowed to submit testimony by avowal. The use of a taped statement was not reversible error. There is no authority which prohibits the introduction of a tape-recorded statement as an additional avenue of impeachment.

Copley argues that evidence was improperly submitted by the Commonwealth on rebuttal. Specifically,...