Weiss v. Commonwealth
| Decision Date | 02 November 2017 |
| Docket Number | 2016-SC-000183-MR |
| Parties | JARROD WEISS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | United States State Supreme Court — District of Kentucky |
IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.
NOT TO BE PUBLISHED
ON APPEAL FROM JEFFERSON CIRCUIT COURT
NOS. 14-CR-002387-01 and 14-CR-002531
MEMORANDUM OPINION OF THE COURTOn the afternoon of April 27, 2011, in Louisville, Kentucky, Tanner Browning was spending time with friends in his apartment. Around the time Tanner's guests were departing, Appellant, Jarrod Michael Weiss, who lived in the same apartment complex, parked his vehicle in front of Tanner's apartment. At that time, Appellant displayed his new stereo system for Tanner and his friends. Eventually, Tanner's friends left, while Tanner and Appellant remained together in the parking lot. What occurred thereafter is unknown. However, later that evening, Isaac Clark, a neighbor and friend of Tanner's, observed Tanner's patio door ajar. Clark grew concerned and decided to enterthe apartment to check on Tanner. Clark discovered Tanner's lifeless body lying inside his apartment bedroom. Tanner died from a fatal gunshot wound.
The Saint Matthews Police Department quickly focused on Appellant as the culprit. Countless witnesses confirmed that Appellant was the last individual seen with Tanner. Police also uncovered that Appellant had purchased a stolen gun from Tanner's roommate. Yet, law enforcement had virtually no physical evidence tying Appellant to the crime, so no arrest was made for several years. Eventually, Appellant's wife, Lavonna Blount, her brother, Gerald Blount, and her sister-in-law, Ashley Blount, came forward and told detectives that Appellant had confessed to murdering Tanner. All three witnesses indicated that Tanner owed Appellant money for marijuana and that Appellant went to Tanner's to retrieve the money. When Tanner could not produce the money, Appellant closed his eyes and shot Tanner. Appellant then returned to his apartment where he cut up his pants and attempted to flush the cuttings down the toilet. Appellant also disposed of the gun.
On September 15, 2015, a Jefferson County Grand Jury indicted Appellant for one count each of murder and tampering with physical evidence. A two-week trial commenced on January 4, 2016, during which thirty-seven witnesses testified. Ultimately, the Jefferson Circuit Court Jury found Appellant guilty on both charges, in addition to being a persistent felony offender in the second degree. The trial court sentenced Appellant in conformity with the jury's recommended sentence of thirty years'imprisonment. Appellant now appeals his conviction and sentence as a matter of right pursuant to § 110(2)(b) of the Kentucky Constitution.
Appellant's first assignment of error concerns the testimony of Donovan Davis. Prior testimony revealed that John Devereaux burglarized Davis' vehicle and recovered a .45 Glock. Devereaux then sold the stolen gun to Appellant. The Commonwealth theorized that the stolen .45 Glock was the murder weapon. However, the stolen Glock was never recovered. Thusly, evidence was presented during the trial that both supported and contradicted the Commonwealth's murder weapon theory. In support, evidence showed that the bullets loaded into the stolen gun were the same type recovered from the crime scene. More specifically, Davis testified that he had loaded Remington Golden Saber, 185-grain, hollow-point bullets into the gun prior to its theft. KSP ballistics expert, Leah Collier, testified that a Remington hollow-point bullet and casing were recovered from the crime scene.
The Commonwealth's murder weapon theory, however, had a significant flaw. According to Davis, the Glock manufacturer had shipped him the gun along with two shell casings that were test fired at the point of assembly. Essentially, the Glock manufacturer provides the buyer with two casings fired from the purchased gun. Davis provided law enforcement with the test-fired casings in order for them to be compared to the shell casing recovered from the crime scene. Ms. Collier was unable to make a conclusive match between the test-fired casings and the one recovered from Tanner's apartment. Twoindependent ballistics experts also testified that the test-fired casings did not match the casing found at the scene.
The Commonwealth attempted to reconcile the inconsistencies in its theory by disclosing to the jury an off-the-record remark made by one expert, Kelly Fite. He stated that Glock manufacturers are notorious for not properly matching the test-fired casings with the correct gun. In other words, the test-fired casings that Davis provided may have been fired from a different Glock, not the actual Glock he purchased. This would explain why experts could not match the test-fired casings with the murder weapon.
With this information in mind, we turn to Appellant's first argument regarding Davis' testimony. Appellant takes aim at the trial court's allowance of Davis' statements that Appellant claims were improperly presented to the jury as expert opinions. More precisely, Davis testified that the .45 Remington hollow-point bullets he loaded into the Glock prior to its theft were rare ammunition not easily accessible to the public. When prompted by the Commonwealth to discuss the ammunition's availability, Appellant objected on the grounds that the answer would be inadmissible expert testimony from a lay witness. The trial court overruled Appellant's objection, explaining that Davis' testimony was factual and not an expert opinion. The Commonwealth continued its questioning by asking Davis, in his personal experience purchasing ammunition, how many types of .45 caliber ammunition and bullet weights were available to purchase and which type of bullet was the most common. Davis' answers demonstrated that in his extensive history ofpurchasing ammunition, the bullets he had loaded into his gun prior to its theft were the least common forms of ammunition for his particular .45 Glock.
In order to determine the admissibility of Davis' testimony, we look to Kentucky Rules of Evidence ("KRE") 701. This rule limits opinion testimony by a lay witness to that which is, inter alia, "[r]ationally based on the perception of the witness . . . [and] [n]ot based on scientific, technical, or other specialized knowledge within the scope of Rule [KRE] 702." This is not to say that lay witnesses can never provide testimony on a subject that is technical in nature, so long as their opinions are based on sufficient life experiences. Mondie v. Commonwealth, 158 S.W.3d 203, 212 (Ky. 2005) (). In the case before us, Davis had corresponding life experience buying and utilizing ammunition. His testimony indicated that he was a firearms instructor who had purchased guns and ammunition since his. teenage years. Furthermore, his testimony was focused entirely on his personal experience buying ammunition for his own gun. See Hunt v. Commonwealth, 304 S.W.3d 15 (Ky. 2009). Accordingly, we cannot find that the trial court abused its discretion, as Davis' testimony was not based on scientific, technical, or specialized knowledge, rather his own personal experiences.
Appellant also argues that Davis' testimony was inadmissible pursuant to KRE 403. At the close of the Commonwealth's case-in-chief, Appellantmoved for a mistrial on the grounds that Davis' testimony regarding the stolen Glock and test casings was more prejudicial than probative. The crux of Appellant's argument to the trial court was that there was no connection between Davis' stolen gun and the murder weapon. Consequently, Davis' testimony concerning the Glock warranted a new trial.
KRE 403 requires a trial court to exclude evidence when its probative value is substantially outweighed by the danger of undue prejudice. To begin our analysis, we find that Davis' testimony had substantial probative worth. While the Commonwealth was unable to prove an exact match of the test-fired casings and the crime scene casing, it provided sufficient proof connecting Davis' stolen gun to the crime. For instance, Appellant had purchased Davis' stolen gun from Deveraux, and the bullet and casing found at the crime scene was the same type of bullet Davis had loaded into his gun prior to its theft. In addition, Davis' testimony regarding the stolen Glock did not cause Appellant to suffer undue prejudice. This Court discussed the meaning of undue or unfair prejudice in Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 716 (Ky. 2009), wherein we stated the following:
Evidence is unfairly prejudicial only if . . . it appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish, or otherwise may cause a jury to base its decision on something other than the established propositions in the case.
(internal quotations and citations omitted). We do not believe Davis' testimony led the jury to decide the merits of the case on anything other than the evidence presented. Accordingly, we cannot...
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