Grundy v. Com., No. 1998-SC-0855-MR.

• Decision Date: 21 September 2000
• Docket Number: No. 1998-SC-0855-MR.
• Citation: 25 S.W.3d 76
• Parties: Eric Lynn GRUNDY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

25 S.W.3d 76

Eric Lynn GRUNDY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 1998-SC-0855-MR.

Supreme Court of Kentucky.

August 24, 2000.

As Modified September 21, 2000.

COPYRIGHT MATERIAL OMITTED

Julie Namkin, Assistant Public Advocate, Frankfort, for Appellant.

A.B. Chandler, III, Attorney General, William L. Daniel, II, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, for Appellee.

MEMORANDUM OPINION OF THE COURT

A Marion County Circuit Court jury convicted Grundy of first degree burglary, second degree assault, first degree robbery, determined that the appellant was a first degree persistent felony offender (PFO), and recommended that Grundy serve concurrent sentences of thirty-five (35) years, twenty (20) years, and thirty-five (35) years respectively. The trial court entered judgment in accordance with the jury's recommendation and sentenced Grundy to a total term of imprisonment of thirty-five (35) years. Grundy thus appeals to this Court as a matter of right, and, after a review of the record, we affirm the judgment of the Marion Circuit Court.

BACKGROUND

The Marion County Grand Jury returned indictments against Grundy and four other individuals for first degree burglary, first degree robbery and second degree assault. The Commonwealth alleged that, in September 1997, Grundy, in complicity with others, broke into a motel room belonging to two out-of-town construction workers, Johnny Marlow and Glen Fitch, and, after demanding money and injuring Marlow by hitting him with a chunk of concrete, fled with Fitch's billfold. Grundy defended against the charges by admitting that he had punched Marlow with his fist, but claiming that he did so only because he had heard reports that the construction workers had made disparaging remarks to his ex-girlfriend about their interracial relationship. The trial court granted Grundy's motion for a separate trial from his co-indictees. The Commonwealth's evidence at trial consisted of the testimony of the alleged victim and Lebanon Police Officer Jeff Waters. Marlow testified that, on the night of the incident, he and Fitch were watching television and drinking beer in their motel room when the door to the room slammed open and Grundy, accompanied by four other African-American men, entered and demanded money. According to Marlow, he and Fitch denied they had any money, but Grundy twice repeated his demand. Marlow testified that after Grundy's third demand, Fitch shouted something and, as Marlow turned towards Fitch, Marlow felt an object hit his head. Marlow explained that Fitch then threw his wallet towards the intruders and the men then ran off with it. Marlow traveled to the hospital and received seven stitches. Marlow advised both hospital personnel and Officer Waters, who initially interviewed Marlow at the hospital, that he had been injured by brass knuckles.

Marlow and Fitch continued to stay in the motel room and Marlow testified that, while Fitch prepared to shower the next evening, the two men located a fist-sized piece of concrete in Fitch's laundry basket which they suspected may have caused Marlow's injuries. Marlow explained that Grundy could not have hit him with a fist because Grundy stood about six feet away at the time he struck Marlow. Marlow testified that he removed a piece of skin from the piece of concrete and placed the object inside of a cooler which he kept in the back of his car until he turned it over to the authorities shortly before trial approximately nine (9) months later.

Officer Waters testified that he did not find the piece of concrete during his investigation the night of the incident, but explained that he did not look inside the laundry basket. According to Officer Waters, Marlow informed him regarding the discovery of the piece of concrete within a couple of days, and that, although he asked Marlow to bring the object to the police station, Marlow returned home without turning over possession. The trial court permitted the Commonwealth to introduce the piece of concrete into evidence over Grundy's objection.

Grundy testified in his own behalf and explained that, on the evening in question, a friend told him that the construction workers at the motel had called his ex-girlfriend a "nigger lover." According to Grundy, he and a friend, Marcus Sanders, confronted Marlow outside the motel regarding the "nigger lover" comment, but that Marlow dismissed Grundy with a profanity and stepped inside his motel room. Grundy then testified that his friend kicked the motel room door open and that he, Grundy, hit Marlow with his fist and then ran away. Grundy specifically denied possessing a piece of concrete, entering the motel room, making any demands for money, or knowledge of any plan to take money from the two men. Another witness, Timmy Douglas, corroborated Grundy's version of the events.

The trial court instructed the jury it could find Grundy guilty of the indicted offenses, and, because Grundy denied using the piece of concrete or any other dangerous instrument, also submitted instructions regarding the lesser included offenses of fourth degree assault and second degree robbery. The jury returned verdicts of guilty as to the indicted offenses and Grundy now appeals to this Court.

ADMISSION OF TANGIBLE EVIDENCE (PIECE OF CONCRETE)

Grundy argues that the trial court erred in allowing the Commonwealth to introduce into evidence, as Commonwealth's Exhibit 1, the fist-sized piece of concrete which the prosecution alleged that Grundy used to assault Marlow. The trial court held a hearing on Grundy's motion in limine to exclude the piece from evidence, and Marlow testified that he and Fitch had found the piece of concrete and that he had kept it in his possession continuously until trial. Grundy emphasizes that Marlow's testimony suggests that a non-testifying witness, Fitch, actually first discovered the piece of concrete and Grundy asserts this "gap" in the chain of custody, in combination with the non-traditional manner in which Marlow himself retained possession of the item prior to trial, rendered it inadmissible at trial. Additionally, Grundy argues that he suffered prejudice because the Commonwealth gave him inadequate notice of this evidence. After a review of the record, we find no error.

Grundy's argument rests on a common misconception regarding the authentication of tangible evidence, and we must emphasize that "a break in the chain of custody is not necessarily fatal to the admissibility of physical evidence."¹ KRE 901(a) governs the authentication and identification of evidence:

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.²

Under KRE 901, like its federal counterpart, a party seeking to introduce an item of tangible evidence need not satisfy an "absolute" identification requirement, and evidence is admissible if the offering party's evidence reasonably identifies the item.³ We grant trial courts wide discretion over issues relating to the admissibility of tangible evidence because the foundation sufficient for admissibility will vary based on the nature of the item:

If the offered item possesses characteristics which are fairly unique and readily identifiable and if the substance of which the item is composed is relatively impervious to change, the trial court is viewed as having broad discretion to admit merely on the basis of testimony that the item is the one in question and is in a substantially unchanged condition. On the other hand, if the offered evidence is of such a nature as not to be readily identifiable, or to be susceptible to alteration by tampering or contamination, sound exercise of the trial court's discretion may require a substantially more elaborate foundation. A foundation of the latter sort will commonly entail testimonially tracing the "chain of custody" of the item with sufficient completeness to render it improbable that the original item has either been exchanged with another or been contaminated or tampered with.⁴

Here, the tangible evidence consisted of a piece of concrete, an item virtually synonymous with "impervious to change," and the trial court did not abuse its discretion in finding that Marlow's testimony properly identified Commonwealth's Exhibit 1 as the piece of concrete found in his hotel room after the assault. Although the Commonwealth could have sought to introduce Fitch's testimony to further identify the item, we find that the trial court properly held that Marlow's testimony appropriately identified the item.

Likewise, we find no merit in Grundy's claim that he received inadequate notice of this evidence. We note that Grundy does not allege that the Marion County Commonwealth's Attorney violated any discovery order entered by the Court or any of the discovery provisions of the Kentucky Rules of Criminal Procedure. Instead, Grundy asks this Court to impute Officer Waters's actions to the Commonwealth and to reverse the convictions because Grundy did not receive all of the information necessary to prepare his defense. However, Grundy's argument stops short of alleging any intentional wrongdoing on the part of Officer Waters, and merely suggests fault by emphasizing the deviation from traditional police procedure and repeating the innuendo-laden claim that Officer Waters knew of the existence of the piece of concrete within a day or so of its discovery. Grundy cites to authority from this Court, Ballard v. Commonwealth⁵ and Anderson v. Commonwealth,⁶ but makes no allegation that the facts in this case are comparable to those in the precedent he cites.

Here, Officer Waters testified before the grand jury that Marlow had identified a piece of concrete as the object Grundy used to injure him, and the Commonwealth provided Grundy with a transcript of...