Gosser v. Com., No. 1997-SC-0946-MR.
| Decision Date | 22 November 2000 |
| Docket Number | No. 1997-SC-0946-MR.,No. 1997-SC-0947-MR. |
| Citation | 31 S.W.3d 897 |
| Parties | Mark Alan GOSSER, Appellant/Cross-Appellee, v. COMMONWEALTH of Kentucky, Appellee/Cross-Appellant. |
| Court | United States State Supreme Court — District of Kentucky |
Mark J. Stanziano, Kathryn G. Wood, Law Office of Mark J. Stanziano, Somerset, for appellant/cross-appellee.
A.B. Chandler III, Attorney General of Kentucky, Perry T. Ryan, Gregory A. Ousley, Assistant Attorneys General, Criminal Appellate Division, Office of the Attorney General, Frankfort, for appellee/cross-appellant.
Appellant, Mark Alan Gosser, was convicted of wanton murder in the Pulaski Circuit Court, and was sentenced to twenty years' imprisonment. He appeals to this Court as a matter of right. We affirm.
Gosser's conviction stems from the events of February 9-10, 1996, when a party was held at a home in Somerset, Kentucky. Witnesses testified that Gosser went to the party to find Danny Abbott, with whom Gosser had a dispute a few days before. Abbott blamed Gosser for slashing his tires, and Gosser thought Abbott had set him up to be arrested.
At some point after Gosser arrived at the party, he saw Abbott and the two stepped outside to settle their dispute. They began to argue, and a crowd gathered in anticipation of a fight. Shortly thereafter, Christopher Ryan Parmalee, a friend of Gosser, came outside, and he and Abbott began to fight. Gosser briefly entered the fight, then stepped back, pulled out a gun, and fired it. Although several witnesses testified that Gosser fired the gun while it was pointed at Abbott, Gosser maintained that the positioning of the participants in the fight made it impossible for the gun to be pointed at Abbott, and that he fired the gun only to break up the fight between Abbott and Parmalee.
In any event, the shot fired by Gosser hit Britt Bell in the center of his chest, and Bell died approximately seven hours after arriving at the hospital. Gosser was tried and convicted of wanton murder, and was sentenced to twenty years' imprisonment. This appeal followed.
On appeal, Gosser presents three issues: (1) whether the trial court erred in admitting into evidence photographs and computer-generated models of the crime scene that were prepared by the police; (2) whether the trial court erred in denying Gosser a continuance; and (3) whether the trial court erred in failing to grant a mistrial because the Commonwealth made a key witness unavailable to testify. For the reasons set forth below, we affirm Gosser's conviction.
On cross-appeal, the Commonwealth presents one issue: whether the trial court erred in excluding statements made by Britt Bell after he was shot, because those statements constituted a dying declaration. The Commonwealth has requested review of this issue only if Gosser's conviction is reversed and remanded for a new trial. Because we affirm Gosser's conviction, we will not consider the issue presented on cross-appeal.
Gosser argues that the trial court erred by admitting Commonwealth's Exhibits 7, 8, 9 and 10. Exhibits 7 and 8 are photographs of the crime scene in which the police had planted colored flags and had made spray-painted marks to show the locations of individuals and evidence at the time of the shooting. Exhibit 9 is a two-dimensional computer-generated diagram of the crime scene. Exhibit 10 is a three-dimensional computer-generated diagram of the crime scene.
These exhibits were admitted through the Commonwealth's first witness, Detective Rice. When the Commonwealth sought to admit Exhibits 7 and 8, Gosser objected on two separate grounds: (1) that the photos did not fairly and accurately depict the area photographed on the night of the shooting; and (2) that the photographs were "composite" diagrams for which the Commonwealth had not laid the proper foundation for their admission. The trial court overruled the objections and admitted the photographs subject to Gosser's right to cross-examine Detective Rice and other witnesses on how the information was obtained. On direct examination, Detective Rice identified who or what each colored flag and spray-painted mark in Exhibit 7 represented and explained how the reconstruction of the crime scene represented in the photograph was prepared in the following manner:
Prosecutor: OK. Now what did you rely upon in determining the positions of the various witnesses to the shooting?
Rice: The witness[s] statements....
Prosecutor: OK. Did you take any witness with you when you did the reconstruction of the actual shooting itself?
Rice: Yes. We had one witness come out ... Jimmy Dan Carroll.
Prosecutor: And with his assistance[,] and relying upon the [other] witnesses' statements that had been taken by the police department[,] were you able to reconstruct where the witnesses were standing at the time of the shooting?
Rice: Yes.
Prosecutor: OK. And how did you do that — do that reconstruction?
Rice: We just had a working knowledge ourselves through our witnesses as to where they were positioned and we had Jimmy Dan Carroll pointing out to us where different witnesses were standing, where those involved, the three individuals were at, and we placed orange flags, repositioning of these individuals.
Prosecutor: OK. Now, after you placed the orange flags[,] did you take some photographs of that?
Rice: Yes. Lieutenant Gary Jones took photographs.
Prosecutor: OK. But you were out there.
Rice: Yes, sir. I was videoing.
Detective Rice then testified that the photograph fairly and accurately depicted the reconstruction as it appeared when photographed. Detective Rice's testimony concerning Commonwealth's Exhibit 8, the aerial photograph, was similar.
It was improper for the Commonwealth to introduce Exhibits 7 and 8 through Detective Rice. While the exhibits are physical photographs, they were used by the Commonwealth as diagrams of the crime scene to show the locations of various witnesses, the defendant, the victim, and the murder weapon. Detective Rice, who was not present at the crime at the time of the shooting, did not have personal knowledge of the location of the persons and the items represented in the photographs at the time of the shooting. His testimony to that effect was based on hearsay.
Nor was Detective Rice's testimony necessary to show how the crime scene reconstruction was prepared. The introduction of a map or diagram made prior to trial is in "no wise different from one drawn by a witness in the presence of the jury." Cook v. Commonwealth, Ky., 232 Ky., 613, 24 S.W.2d 269, 271 (1930). In State c. Furlough, 797 S.W.2d 631 (Tenn.Crim.App. 1990), the defendant objected on hearsay grounds to the introduction of a diagram of the crime scene. Id. at 646. The diagram had been prepared by the investigating officer, who did not testify. Id. The Furlough court determined that the diagram, while based on hearsay, should not be excluded as such, stating:
As long as the witness has personal knowledge of the subject matter and the diagram is accurate, drawings drafted out of court are admissible despite the hearsay rule. The in-court authentication of the drawing is the assertion permitting cross-examination of its accuracy. That is sufficient to satisfy the hearsay objection.
Id. at 647 (internal citations omitted). The fact that the diagram in this case was created in a photograph, rather in a drawing, is of no consequence.
In the case at bar, the Commonwealth should have authenticated the crime scene reconstruction photographs/diagrams through the individual witnesses who were present at the time of the shooting. These witnesses had personal knowledge of the subject matter of both the physical crime scene and the accuracy of the placement of the identifying orange flags. Once the photographs/diagrams had been properly authenticated, whether to formally admit them as an exhibit would have been left to the sound discretion of the trial judge. See Wilson v. Commonwealth, Ky., 551 S.W.2d 569, 571 (1977).
The use of computer-generated graphics and animation as evidence is a growing trend in the Commonwealth, as it is in courtrooms all across the land. Heretofore, this Court has not addressed any of the many issues concerning the admission of this type of evidence. However, there is a growing body of case law and law review articles concerning these issues.
Computer generated visual evidence (CGVE) is usually divided into two broad categories: (1) demonstrative; and (2) substantive.1 Demonstrative CGVE usually consists of still images or animation which merely illustrates a witness's testimony.2 Substantive CGVE usually consists of computer simulations or recreations, which are prepared by experts and which are based on mathematical models in order to recreate or reconstruct an incident or event.3 In turn, the standard of admissibility depends on how the CGVE is categorized.4 This situation is much like our approach to the introduction of photographs. As explained in Litton v. Commonwealth, Ky., 597 S.W.2d 616 (1980):
Photographs are most commonly admitted into evidence as demonstrative evidence on the theory either that they are merely a graphic portrayal of oral testimony or that a qualified witness adopts the photograph as a substitute for words. See McCormick on Evidence, Sec. 214 (1972); 3 Wigmore on Evidence, Sec. 790 (Chadbourn rev. 1970). When a photograph is used as demonstrative evidence, the witness need not be the photographer, nor must he have any personal knowledge of the time, method, or mechanics of the taking of the photographs. The witness is only required to state whether the photograph fairly and accurately depicts the scene about which he is testifying....
Photographs can be admitted as real evidence in a proper case. As stated in Wigmore:
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