Ragland v. Com.

• Decision Date: 23 March 2006
• Docket Number: No. 2003-SC-0084-TG.,No. 2002-SC-0388-MR.,2002-SC-0388-MR.,2003-SC-0084-TG.
• Citation: 191 S.W.3d 569
• Parties: Shane Layton RAGLAND, Appellant v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

191 S.W.3d 569

Shane Layton RAGLAND, Appellant v. COMMONWEALTH of Kentucky, Appellee.

No. 2002-SC-0388-MR.

No. 2003-SC-0084-TG.

Supreme Court of Kentucky.

March 23, 2006.

Rehearing Denied June 15, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

William E. Johnson, J. Guthrie True, Johnson, True & Guarnieri, LLP, Frankfort, Jerry L. Wright, Herren and Adams, Lexington, Counsel for Appellant.

Gregory D. Stumbo, Attorney General, Connie Vance Malone, Todd D. Ferguson, Assistant Attorneys General, Frankfort, Counsel for Appellee.

Opinion of the Court by Justice COOPER.

Appellant, Shane Layton Ragland, was convicted by a Fayette Circuit Court jury of murder and sentenced to thirty years in prison. He appeals to this Court as a matter of right, Ky. Const. § 110(2)(b), asserting eight claims of reversible error, viz: (1) failure to grant Appellant's motion for a change of venue; (2) admission of expert testimony with respect to the results of comparative bullet lead analysis (CBLA) tests; (3) failure to grant a new trial on the basis of newly discovered evidence that the CBLA expert had knowingly given false testimony at the Daubert hearing; (4) failure to suppress evidence obtained pursuant to search warrants; (5) failure to suppress evidence of statements made by Appellant during a custodial interrogation; (6) admission of hearsay statements made by the victim; (7) admission of ballistics evidence with respect to weapons other than the alleged murder weapon; and (8) failure to declare a mistrial when the prosecutor commented on Appellant's failure to testify at trial. We conclude that the admission of the CBLA test results and the expert's opinions about those results require reversal for a new trial. Thus, we need not address the claim relating to venue, which can be renewed prior to retrial. We will address other claims of error because they are likely to recur upon retrial. Springer v. Commonwealth, 998 S.W.2d 439, 445 (Ky.1999).

* * * * * *

On the night of July 17, 1994, Trent DiGiuro, a student athlete at the University of Kentucky, was shot in the head and killed as he sat in a chair on the front porch of his residence at 570 Woodland Avenue, Lexington, Kentucky. DiGiuro was celebrating his twenty-first birthday with friends, some of whom were on the porch with him when he was killed. Although one eyewitness heard the shot, no one saw who fired it or from where it was fired. Fragments of the fatal bullet were recovered during the postmortem examination, and a firearms expert concluded that the bullet most likely had been fired from a .243 caliber rifle with a four-groves-and-lands, right-twist barrel pattern. Lexington police found two holes in the ground under some bushes near the corner of Woodland and Columbia Avenues, which could have been caused by a bipod rifle stand. Because the spot provided a clear line of sight to the front porch of DiGiuro's residence, the police surmised that it was the spot from where the shot had been fired. Although numerous leads were followed and at least one suspect was identified, six years elapsed before anyone was charged with the murder.

In January 2000, Aimee Lloyd, Appellant's ex-girlfriend, informed Lexington police officers that Appellant confessed to her in April 1995 that he killed DiGiuro because DiGiuro had caused Appellant to be "blackballed" by his college fraternity three years earlier. According to Lloyd, Appellant showed her the rifle he had used to shoot DiGiuro and later told her that he had hidden the rifle at his mother's residence at 501 Capital Avenue, Frankfort, Kentucky. Lloyd also believed the rifle belonged to Appellant's father and that Appellant may have subsequently returned it to his father's residence at 1469 Old Lawrenceburg Road, Frankfort. Appellant resided part-time at both residences. Lloyd also told the police that during her relationship with Appellant from 1994 to 1996, he and one of his friends engaged in a marijuana-growing operation, including cultivating marijuana on his father's Old Lawrenceburg Road property. Because they had no jurisdiction outside of Lexington, the Lexington police referred the information about the location of the weapon and the marijuana operation to the Kentucky State Police and the Federal Bureau of Investigation (FBI).

On July 12, 2000, FBI Special Agent Gary Miller obtained warrants from a United States Magistrate to search the Frankfort residences of Appellant's parents. On July 13, 2000, Lloyd, pursuant to a ruse and in cooperation with Lexington police, met Appellant at a bar in Lexington and attempted to engage him in a secretly recorded conversation about the DiGiuro murder. The Commonwealth claims that during that conversation Appellant expressed regret for having murdered DiGiuro. Appellant claimed to the police that he had only expressed regret for having mistreated Lloyd during their previous relationship. The recorded conversation, which prosecutors played for the jury at trial, was arguably ambiguous. On July 14, 2000, Lexington police officers interrogated Appellant at police headquarters while FBI agents executed the search warrants at the Frankfort residences of Appellant's parents. Although Appellant did not confess to the murder of DiGiuro, he made some statements during the interrogation that were inconsistent with other information his interrogators believed to be true.

The search of the 501 Capital Avenue residence recovered a .243 caliber Wetherby Vanguard rifle with three unspent .243 caliber bullets in the chamber. The search of the 1469 Old Lawrenceburg Road residence revealed an ammunition box containing seventeen unspent .243 caliber bullets. A label on the box indicated the Winchester Ammunition Company had manufactured the bullets on April 28, 1994. Kathleen Lundy, a metallurgist employed as a forensic scientist by the FBI, subjected the three bullets found in the Wetherby Vanguard rifle, sixteen of the seventeen bullets found in the ammunition box, and the fragment of the bullet that killed DiGiuro to a comparative bullet lead analysis. She testified at trial that one of the bullets recovered from the rifle and nine of the bullets found in the ammunition box were "analytically indistinguishable" in metallurgical composition from the bullet that killed DiGiuro, a finding she described as "consistent with" the bullets having originated from the same source of molten lead.

Markings on bullets test-fired from the .243 Wetherby Vanguard rifle found at 501 Capital Avenue matched the markings on the murder bullet. Markings on bullets test-fired from three other .243 Wetherby Vanguard rifles manufactured during the same time period as the Ragland rifle did not match those found on the murder bullet. However, the firearms examiner was unable to conclusively say that the Ragland rifle fired the murder bullet because of the degree of fragmentation of the bullet.

I. COMPARATIVE BULLET LEAD ANALYSIS.

A. "Daubert" Ruling.

Appellant moved to suppress Lundy's expert opinion that the metallurgical composition of the .243 caliber bullet fragment removed from DiGiuro's body was analytically indistinguishable from one of the three bullets in the rifle found at 501 Capital Avenue and nine of the seventeen bullets in the ammunition box found at 1469 Old Lawrenceburg Road,¹ and that such was consistent with the bullets having originated from the same source, i.e., the same batch of molten lead. Appellant asserts that Lundy's conclusions in that regard are scientifically unreliable. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589-90, 113 S.Ct. 2786, 2794-95, 125 L.Ed.2d 469 (1993); Mitchell v. Commonwealth, 908 S.W.2d 100, 101-02 (Ky.1995) (adopting Daubert in Kentucky), overruled in part on other grounds by Fugate v. Commonwealth, 993 S.W.2d 931, 937 (Ky.1999). This "gatekeeping" role of the trial court, Daubert, 509 U.S. at 597, 113 S.Ct. at 2798, is designed to banish "junk science" evidence from the courtroom, Elsayed Mukhtar v. Cal. State Univ., 299 F.3d 1053, 1063 (9th Cir.2002), by requiring a preliminary determination that proffered expert testimony meets the reliability standards of KRE 702. Mitchell, 908 S.W.2d at 102.

Faced with a proffer of scientific testimony, . . . the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.

Daubert, 509 U.S. at 592-93, 113 S.Ct. at 2796 (footnotes omitted). A finding that the reasoning or methodology is scientifically reliable is reviewed for clear error. Miller v. Eldridge, 146 S.W.3d 909, 917 (Ky.2004). A determination that the evidence will assist the trier of fact is reviewed for abuse of discretion. Id.

Lundy testified at the Daubert hearing that lead bullets are manufactured primarily from recycled automobile batteries. Most bullet manufacturers purchase their lead in bulk from secondary smelters (recyclers), who crush and melt the batteries, then separate the lead to the extent possible from the other battery contents. The molten lead is then cooled and formed into 60- to 100-pound bricks or ingots, 70- to 125-pound cylindrical billets, or 1,000- to 2,000-pound blocks. Each ingot, billet, or block will inevitably contain traces of arsenic, antimony, tin, bismuth, copper, silver, and/or cadmium — elements in the batteries that did not separate from the lead during the recycling process. Because antimony hardens lead, bullet manufacturers often specify that the lead they purchase must contain a certain percentage of that element. Otherwise, the manufacturers only require that the percentages of these trace elements (or "impurities")...