Milburn v. Com.

• Decision Date: 21 December 1989
• Docket Number: No. 88-SC-795-MR,88-SC-795-MR
• Citation: 788 S.W.2d 253
• Parties: Charles C. MILBURN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 253

788 S.W.2d 253

Charles C. MILBURN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 88-SC-795-MR.

Supreme Court of Kentucky.

Dec. 21, 1989.

Rehearing Denied May 24, 1990.

Frank E. Haddad, Jr., George Salem, Jr., Louisville, for appellant.

Frederic J. Cowan, Atty. Gen., Joseph R. Johnson, Asst. Atty. Gen., Criminal Appellate Div., Frankfort, for appellee.

LAMBERT, Justice.

Appellant Charles C. Milburn was convicted in the Jefferson Circuit Court of wanton murder and two counts of first degree assault. Sentenced to a total of twenty years imprisonment, Milburn received twenty years as to wanton murder and ten years on each of the assault charges, to run concurrently. Appellant appeals his conviction to this Court as a matter of right.

The events from which the charges against appellant arose followed an afternoon and evening of excessive drinking. The evidence showed that the episode began on Saturday afternoon when appellant shared a fifth of vodka and several beers with a friend. Meeting up with another friend, one J.J. Jones, appellant and Jones consumed their first of many pints of gin and then departed for a local combination liquor store and pool hall. There appellant drank more gin and an undetermined amount of beer. He also shot several games of pool with one of the soon-to-be victims, Kenneth Finch, to whom he lost.

Finch testified that appellant owed him $2.00 from their bet on the outcome of the pool match. Appellant gave a $20 bill to Jones to get change. However, appellant apparently never paid his debt to Finch, as he left the pool room at the barkeep's request after scuffling with Jones over the whereabouts of the change. Realizing that he was too drunk to drive, appellant decided to sleep it off in his truck which was parked close by on the street.

Appellant was awakened awhile later by someone grabbing him through the open truck window. Appellant testified that he heard several people nearby discussing a plan to take his money. Unsuccessful in his attempts to push away the unidentified individual who appellant testified continued to attack him, appellant eventually picked up a gun, alighted from the truck and began firing. Three individuals were shot, including Kenneth Finch, and a passerby. The third victim, the alleged attacker, died from a bullet wound to the head.

Appellant fled the shooting scene in his truck. Near the Louisville airport, appellant struck a guardrail at a high rate of speed, flew down an embankment, hit a fence and, finally, bounced back onto the road. Police officers investigating the accident questioned appellant and placed him under arrest in connection with the earlier shootings before he was taken to the hospital.

The Commonwealth charged appellant with murder and sought to prove that he intentionally shot the victims. Milburn asserted the defenses of self-protection and extreme emotional disturbance. He testified that he only intended to scare his attackers away by firing at the ground. The jury evidently did not fully accept either theory, as appellant was convicted of wanton murder, rather than intentional murder. The jury also found appellant guilty of wanton first degree assault on the two assault counts.

Appellant presents eight allegations of error. In his first argument, appellant contends the circuit court erred by allowing William McBrayer, an expert witness for the Commonwealth, to testify outside the confines of his report. Firearms examiner McBrayer filed a brief report which was made available to appellant prior to trial. The report listed four items under the heading "Examination Requested." One of the requests was to "[d]etermine if there are lead residues present on Exhibit 7." Exhibit 7 was a hair sample from the head wound of the deceased victim. The section of the report entitled "Results of Examination" contained five concise findings, one of which was

"A light reaction to lead residue noted on Exhibit 7."

McBrayer's testimony concerning this item is the basis for appellant's claim of error.

Several weeks before trial, the Commonwealth moved to depose McBrayer, because he would have resided out of the State by the time of trial. The court entered an order scheduling a video deposition. The order included the judge's hand-written amendment requiring the Commonwealth to give the defendant a summary of McBrayer's testimony six hours prior to the video deposition. The deposition was never taken.

Instead, McBrayer was called to testify at trial, and in this testimony reviewed the findings contained in his report. After identifying the testing procedure as to lead residue, the witness explained that lead residue is expelled from the muzzle or "business" end of the firearm. Appellant immediately objected on the basis of the deposition court order amendment, which he interpreted as prohibiting McBrayer from testifying outside of the contents of the report unless the defense had received a summary of this testimony six hours before.

An extended bench conference followed, during which the trial judge agreed with appellant that any testimony about proximity between the muzzle end and the victim's head was outside the report. Appellant argued that whether McBrayer testified by deposition or at trial, the purpose of allowing discovery was to prevent unfair surprise. Ultimately, appellant's objection was overruled, however, because the trial court did not believe the provisions of the deposition order applied to the witness's in-court testimony. When direct examination resumed, McBrayer testified that it would be consistent with his findings to assume the weapon was in close proximity to the victim's head when it was fired.

Appellant contends that he was entitled to advance notice of this information under the court's discovery order pursuant to RCr 7.24(1)(b), the court's deposition order amendment protecting appellant from surprise, and this Court's recent decision in Barnett v. Commonwealth, Ky., 763 S.W.2d 119 (1988). In Barnett, we reversed the appellant's conviction of intentional murder in part because the Commonwealth's serologist was permitted to testify that the faint traces of blood found on appellant's hands and arms were "attributable to washing away the blood that could have been expected from the victim's wounds." Id. at 123. Finding that the opinion was admissible, though supported only weakly by the inference that appellant could have washed his hands in a nearby puddle, we nonetheless held that

"appellant was entitled under RCr 7.24 to be confronted with the fact that this opinion would be presented against him before the trial started so that he had a reasonable opportunity to defend against the premise. " Id. Emphasis added.)

Citing James v. Commonwealth, Ky., 482 S.W.2d 92, 94 (1972), for the proposition that the system cannot tolerate "a cat and mouse game whereby the Commonwealth is permitted to withhold important information requested by the accused," we found in Barnett that the report provided by the Commonwealth to Barnett omitted a significant piece of information. Similarly, in the case at bar, the firearms examiner's report omitted the expert's opinion as to what the physical findings indicated.

Unlike the instant case, however, the expert's conclusion in Barnett was based not only on the premise contained in the report, but also on an additional and necessary premise. To reach the conclusion that Barnett may have washed away the victim's blood, the serologist relied on the light blood traces he found on Barnett's hands and arms. But in order to be relevant and admissible, the expert's opinion also had to be based on evidence that Barnett had an opportunity to wash his hands. Yet without prior knowledge of the expert's opinion, Barnett had no reason to develop proof that the puddle near the murder scene was undisturbed or that Barnett's person or clothing was not damp or splashed from washing, so as to refute the expert's opinion.

In contrast, the firearms examiner's opinion in the case sub judice was drawn directly from the premise that a light reaction to lead residue was found in hair taken from the wound to the victim's head. The report stated that one of the purposes of the examination was to determine whether lead residue was present on the victim's hair sample. This information serves the commonly recognized purpose of determining the proximity between the gun muzzle and the victim. ¹ The expert relied on no additional premise against which appellant claims a need to defend himself.

Under the facts presented, we hold the trial court did not err under discovery rules, court orders or Barnett in allowing the expert to testify as to his opinion on proximity based upon the results of his examination of the evidence.

Appellant next contends that the trial court erred when it permitted the Commonwealth to introduce into evidence two knives which were not used in the murder and assaults for which appellant was charged. Milburn claims the knives were irrelevant and further that the Commonwealth used them only to unfairly prejudice the jury by casting aspersions on appellant's character.

The Commonwealth first referred to a knife during the examination of Raymond Burnley, a witness to the events surrounding the shooting. When he testified that neither appellant nor Jones displayed a knife when they left the pool hall, the prosecutor confronted Burnley with a statement he made previously to a police officer. Burnley did not recall telling the officer that he saw appellant open a knife before he climbed into his truck, but stated that if he had told the police that, then appellant probably did have a knife.

Appellant objected to the introduction of the knives or photographs thereof many times during the testimony of three police officers who found two knives on the ground beneath the open door to appellant's truck at the scene of the accident. The Commonwealth argued that the knives were...