WILLIAM NEWSOME APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

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Court of Appeals of Kentucky.

WILLIAM J. NEWSOME APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2009–CA–002332–MR

Decided: March 9, 2012

BEFORE:  TAYLOR, CHIEF JUDGE;  CLAYTON, JUDGE;  LAMBERT,SENIOR JUDGE.Double BRIEF FOR APPELLANT:  Susan Jackson Balliet Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General W. Bryan Jones Assistant Attorney General Frankfort, Kentucky

NOT TO BE PUBLISHED

OPINIONREVERSING AND REMANDING

Upon a jury verdict, Appellant William J. Newsome was convicted of first-degree assault and sentenced to fifteen years' imprisonment.   He contends on appeal that his conviction should be reversed because the trial court erred in admitting certain scientific evidence, and in denying his request for a continuance to address that evidence.   Because we agree that a continuance was necessary and required under the circumstances of this case, we reverse and remand for a new trial.

Facts and Procedural History

On June 12, 2009, the Lawrence County grand jury indicted Appellant on one count of first-degree assault.   The indictment stemmed from an incident that took place at around 8:00 a.m. on March 26, 2009, in which Appellant was accused of shooting Tracy Heaberlin, the estranged husband of Appellant's girlfriend, Donna Heaberlin. Double The two men had been involved in previous altercations, including one incident in which Appellant pepper-sprayed Heaberlin in the face after Heaberlin allegedly tried to punch him.   As a result of this, Heaberlin obtained criminal charges against Appellant that were still pending at the time of trial. Double

At trial, Heaberlin testified that as he was backing his car out of his driveway on the morning of the incident when he noticed a white Ford Mustang with its headlights on.   Heaberlin had never seen the car before.   As he drove, he noticed the Mustang behind him, and that it was directly behind him when he came to a stop at an intersection.

Following the stop, the Mustang pulled up beside Heaberlin's driver-side window.   The Mustang's passenger-side window was rolled down, and Heaberlin saw a man (whom he identified as Appellant) pointing a gun at him.   Heaberlin put his car in reverse, but a gunshot went through his driver-side window and hit him in his upper left arm, fracturing his humerus. Double Heaberlin attempted to continue backing his car away, but he could no longer control the vehicle.   He then saw the shooter lean out of the Mustang and fire another round at him.   This shot hit the front of Heaberlin's car near the windshield.   After slamming into a guardrail, Heaberlin got out and was picked up by a passing truck.   He was then taken to a local hospital.

Later that day, Lawrence County Sheriff's Deputy Mark Wheeler began an investigation of the shooting.   After interviewing Tracy Heaberlin at the hospital, Deputy Wheeler found Heaberlin's car – a green, four-door Plymouth –still running where Heaberlin had left it.   The driver-side window had been “busted out,” and Deputy Wheeler found a bullet hole in the left side of the car's hood near the windshield.   No bullet was recovered from inside the car, but Deputy Wheeler found and collected a spent projectile from the road.   This bullet was subsequently sent to the Kentucky State Police (KSP) Eastern Regional Crime Laboratory (KSP Crime Lab) for analysis.

Deputy Wheeler subsequently interviewed Donna Heaberlin, who informed him that she had seen Appellant Newsome two days earlier but that he had not been with her on the morning of the shooting.   Instead, Appellant had been staying with his friend Ron Setty in Carter County.   Deputy Wheeler received verification from the Kentucky State Police that a white, two-door Ford Mustang was registered to Setty.   Deputy Wheeler then issued an “attempt to locate” request on the vehicle and two suspects in the shooting – Appellant and Setty.

In due course, KSP Trooper Beshears located the Mustang and pulled the car over.   Appellant was driving and Setty was the passenger.   Appellant was detained, and Setty was arrested for reasons unrelated to this case.   Setty consented to a search of the car, and Trooper Beshears recovered a white trash bag that contained a knitted cap, a ski mask, two shirts, several pairs of gloves, a West Virginia license plate, a white towel, a Starbucks bottle lid, and a Pepsi can.   No weapons were found.

When Deputy Wheeler arrived on the scene, he took a statement from Appellant after Appellant was informed and had waived his MirandaDouble rights.   Appellant told Deputy Wheeler that he had been at Setty's home in Carter County all morning and that they were on their way to look at a car when they were stopped.   Later at trial, Appellant testified that he had been staying with Setty to help him cut and haul storm-damaged trees.   On the day in question, it had been rainy and cold, so he and Setty decided to sleep in and then check on a used car that was for sale.   Appellant further testified that he had found the white trash bag at the mouth of Setty's driveway while they were leaving that morning.   Setty had picked it up and thrown it on the back floorboard of the Mustang to dispose of later, but the car was pulled over by Trooper Beshears before this could be done.   Appellant denied any involvement in the shooting.

While examining the contents of the white trash bag, Deputy Wheeler discovered that the Pepsi can contained 14 rounds of .38–caliber ammunition and one .22–caliber long-rifle cartridge.   This ammunition was subsequently sent to the KSP Crime Lab for analysis.   Appellant was ultimately arrested and charged with first-degree assault for the shooting of Tracy Heaberlin.

On Thursday, October 29, 2009 – only four days (two working days) prior to trial – the Commonwealth provided Appellant's defense counsel with a copy of a forensic lab report produced by Jessica Akers, a Firearm/Toolmark Examiner II at the KSP Crime Lab. The report concluded that the fired bullet recovered from the scene of the shooting had all of the same “observed characteristics” as the 14 live .38–caliber rounds recovered from the Pepsi can in Setty's vehicle.   The report provided that it was completed on October 28, 2009 – the previous day.

Appellant responded to this disclosure by immediately filing a motion in limine seeking to prevent the report, or any testimony relating to it, from being introduced as evidence at trial.   In the alternative, Appellant sought a continuance so that he could be afforded the opportunity to consult with a qualified witness about the substance of the report.   Appellant argued:

The last-minute submission of this report amounts to unfair and prejudicial surprise depriving the defendant of a meaningful opportunity to assess and refute the evidence offered against him.   Prior to receipt of this report, the technical forensic evidence in this case essentially consisted of a negative gunshot residue examination (performed in June and provided to Defense last week) and a negative fingerprint examination.   This late submission effectively changes ‘nothing’ to ‘something’ at the last minute.

A hearing via telephone conference was held the next day.   In response to Appellant's arguments, the Commonwealth contended that “the report contained no new information as it did not make a definitive match of the fired round to the recovered rounds” but only indicated “that they were of the same make and apparent manufacture.”   The trial court denied both of Appellant's motions, and the case proceeded to trial the following Monday, November 2, 2009.

At trial, Akers testified that she had compared the spent bullet found at the shooting scene to one of the live .38–caliber rounds recovered from Setty's Mustang.   She indicated that she had pulled a bullet from one of the live cartridges so that she could compare its design features to that of the spent bullet.   Akers measured the diameter and weight of the two bullets and found them to be “similar.”   They also shared the same “cannelure,” or smooth step, in the same location around the circumference.   She also noted that both bullets were “jacketed” and “concave” around the edge of the base, with each having a “flat lip.”   Based on these facts, Akers concluded that the bullets were of a similar design because “all the observed characteristics are the same.”   Thus, she opined that the spent bullet was also more than likely a .38–caliber bullet based on its similarity to the ammunition recovered from Setty's mustang.

The jury ultimately found Appellant guilty of first-degree assault and recommended a fifteen-year sentence of imprisonment.   The trial court entered a judgment and sentence consistent with the jury's recommendation.   This appeal followed.

Analysis

On appeal, Appellant argues that he is entitled to a new trial because the trial court erred in refusing to exclude the “last-minute forensic evidence” submitted by the Commonwealth or, in the alternative, to grant a continuance so that Appellant could adequately address that evidence.   The decision as to whether to grant a continuance lies within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion.   Montgomery v. Commonwealth, 320 S.W.3d 28, 47 (Ky.2010);  Eldred v. Commonwealth, 906 S.W.2d 694, 699 (Ky.1994), abrogated on other grounds by Commonwealth v. Barroso, 122 S.W.3d 554 (Ky.2003).  “The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”  Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999).   Kentucky Rules of Criminal Procedure (RCr) 9.04 allows a trial to be postponed upon a showing of sufficient cause.   Snodgrass v. Commonwealth, 814 S.W.2d 579, 581 (Ky.1991), overruled on other grounds by Lawson v. Commonwealth, 53 S.W.3d 534 (Ky.2001).  “Whether a continuance is appropriate in a particular case depends upon the unique facts and circumstances of that case.”  Id.

In Snodgrass and in Eldred, the Supreme Court of Kentucky set out seven factors that should be considered by a trial court when deciding whether to grant a continuance.   These include:  (1) the length of delay;  (2) whether there have been any previous continuances;  (3) the inconvenience to the litigants, witnesses, counsel, and the court;  (4) whether the delay is purposeful or caused by the accused;  (5) the availability of competent counsel, if at issue;  Double (6) the complexity of the case;  and (7) whether denying the continuance would lead to any identifiable prejudice.   Snodgrass, 814 S.W.2d at 581;  Eldred, 906 S.W.2d at 699;  see also Anderson v. Commonwealth, 63 S.W.3d 135, 138 (Ky.2001).   The record in this case does not reflect that the trial court properly considered these factors in reaching its decision to deny a continuance.   A thorough application of those factors to this case would have established the need for a continuance.

As to the first factor, we note that Appellant did not request a specific number of days in his motion for a continuance;  thus, the “length of delay” factor is not in play herein.   With that said, we do not believe that more than a sixty-day continuance would have been required to address Appellant's concerns.   This length of time was characterized as “rather minimal” in Eldred.   Eldred, 906 S.W.2d at 699;  see also Anderson, 63 S.W.3d at 138.

Moreover, the case was less than six months old when trial began, and this was the first continuance requested by either party.   The second factor, then, would militate in favor of granting Appellant a continuance.   This is not a case that had languished on the trial court's docket for years and had been subject to multiple delays.   Instead, it proceeded from indictment to trial in a brisk fashion.

As to the third factor, the Commonwealth has presented nothing showing that a continuance would have been a significant inconvenience to the litigants, witnesses, counsel, or the court.  “Of course, any change in trial date is going to cause some inconvenience.   Thus, in order to become a factor for consideration there must be some significant or substantial inconvenience, which should be demonstrated on the record.”  Eldred, 906 S.W.2d at 700.   Consequently, this factor would also suggest that a continuance should have been granted.

We further note that as to the fourth factor, any delay could not be said to have been purposefully caused by Appellant.   The forensic report was apparently completed on October 28, 2009 and disclosed by the Commonwealth the following day.   While the record gives us no reason to “blame” the Commonwealth for such a late disclosure, “it is fair to note that the Commonwealth is the one with the most control over such situations,” at least as compared to Appellant.   Id. Thus, this factor also weighs in favor of granting a continuance.

As to the sixth and seventh factors, the Commonwealth attempts to minimize any prejudicial effect resulting from a denial of a continuance by downplaying the significance of the forensic report and Akers's testimony and the complexity of the case.   We agree that the case, in general, was not complex in nature.   However, the Commonwealth's introduction of forensic evidence caused the case to be more complicated than it had been by introducing technical/scientific aspects to the proceedings.

As to the significance of the evidence, it was clearly important to the Commonwealth's case since it directly linked a spent bullet recovered from the crime scene to bullets recovered from the car believed to have been involved in the shooting – a car in which Appellant was a passenger.   Indeed, in its opening statement the Commonwealth characterized the spent bullet as a “very important piece of evidence” for this very reason.   As noted above, Akers testified that “all the observed characteristics” of the spent bullet “are the same” as the bullets recovered from the Mustang.   This point was emphasized in the Commonwealth's cross-examination of Appellant, during which the spent bullet was characterized as being “identical in characteristics” to the live ammunition recovered from the Mustang, and in the Commonwealth's closing argument, at the end of which it was stated that the tested bullet taken from the live rounds in the Mustang was “consistent in all ways” with the spent bullet recovered at the crime scene.

The Commonwealth argues that even without Akers's testimony, there was still proof that Appellant was injured by a .38–caliber bullet.   The Commonwealth points to testimony from the physician who treated Heaberlin after the shooting indicating that Heaberlin was wounded by what was “probably a .38.”   However, this testimony is far less definitive than that offered by Akers, especially given that the bullet that hit Heaberlin was not removed from his body.   In light of these facts, the Commonwealth's contention that the evidence in question was somehow lacking in importance rings hollow.   Therefore, this argument is unavailing.

Perhaps most importantly, we note that the denial of a continuance allowed the Commonwealth the advantage of presenting testimony from an expert witness concerning comparative bullet analysis while Appellant was afforded no such opportunity or even the opportunity to adequately explore the possibility.   It also greatly reduced the amount of time defense counsel had to prepare to cross-examine Akers and, arguably, impacted the effectiveness of that cross-examination since Akers's report disclosed little about her methodology or the reasoning behind her conclusions.   With any witness this would be problematic, but with an expert witness this strikes us as particularly troublesome.   Any such expert testimony – particularly when left unrebutted by another expert –is almost certainly going to carry a considerable weight in the eyes of the jury.   Moreover, prior to the disclosure of Akers's report, the Commonwealth had disclosed no other expert testimony to be presented at trial.   Thus, it cannot be said that Appellant should have somehow anticipated that such evidence would be introduced.

Under these circumstances, we are convinced that Appellant was prejudiced by the lack of a continuance.   In fact, it is difficult to think of a circumstance in which it would be acceptable for a party to be informed of such evidence less than two working days before a felony trial, and given no opportunity for a continuance to duly consider it.   Such a situation is inherently prejudicial to a defendant.

Accordingly, based upon our analysis of the relevant factors from Snodgrass and Eldred, we conclude that the trial court abused its discretion in denying Appellant's motion for a continuance.   As such, we reverse the conviction and remand for a new trial.   Because of our decision, we need not address the other arguments raised by Appellant.

Conclusion

For the foregoing reasons, this case is reversed and remanded to the Lawrence Circuit Court for a new trial.

ALL CONCUR.

LAMBERT, SENIOR JUDGE:

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