CONRAI KABALLAH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE (2017)

MEMORANDUM OPINION OF THE COURT

AFFIRMING

A jury in Jefferson County convicted Conrai Kaballah of two counts of murder and one count of tampering with physical evidence. Consistent with the jury's sentencing recommendations, the trial court fixed his sentence at confinement for life without the possibility of parole for twenty-five years on each count of murder, and confinement for five years on the count of tampering with physical evidence, with the sentences to be served concurrently.

Kaballah now appeals as a matter of right, Kentucky Constitution § 110(2)(b), arguing that the trial court erred by: (1) denying him the opportunity to impeach one of the Commonwealth's witnesses; (2) denying his motion for mistrial following the introduction of inadmissible evidence; (3) admitting an audio recording between a jail inmate and one of the Commonwealth's witnesses; (4) admitting evidence that he had previously been incarcerated in disciplinary segregation; (5) allowing the introduction of unreliable expert testimony regarding gunshot residue; and (6) permitting a detective to give improper expert testimony regarding ballistics evidence. For the reasons set forth below, we affirm.

I. BACKGROUND

On August 6, 2008, Takeisha Huff and Marion Jones were found dead in their apartment in Louisville's Sheppard Square housing complex. Huff had been shot twice in the back of the upper neck area. Jones had been shot once in the back of the head from less than two feet away. A witness observed two black males exiting the apartment after hearing gun shots, and one black male removed his white t-shirt, used it to wipe off a handgun he was holding, and discarded the items. A search of the area surrounding the apartment produced a handgun containing two spent rounds, a bloodied white t-shirt, and a black baseball cap. The following day, police interviewed Marcus Whitehead, who echoed the previous witness's statement. That same day, the police found a second handgun, containing one spent round.

The police had no new leads or suspects until, on June 9, 2009, they interviewed a confidential source—later identified as Carl Bruce. Bruce confirmed the accounts of the other two witnesses and identified one of the black males seen leaving the apartment as “Compton.” The police subsequently discovered that Kaballah had gone by the alias, Compton. When police interviewed Kaballah, he denied both his involvement in the murders and that he was known as Compton, notwithstanding the word “Compton” tattooed on his neck.

Because Kaballah was previously convicted of a felony, his DNA was cataloged in the FBI's Combined DNA Index System. The white t-shirt and black baseball cap found at the scene were submitted to the Kentucky State Police (KSP) laboratory in May 2011, and the results from those items revealed a match to Kaballah's DNA. The white t-shirt was later submitted to the KSP laboratory for gunshot residue (GSR) analysis. That analysis revealed that the t-shirt had been previously exposed to GSR.

During the trial's guilt phase, the Commonwealth called twenty-eight witnesses and entered 103 exhibits. Kaballah did not testify and called only one witness. This appeal followed. We set forth additional facts as necessary below.

II. STANDARD OF REVIEW

Because the issues presented require us to apply different standards of review, we set forth the appropriate standard as necessary when addressing each issue.

III. ANALYSIS

A. The trial court did not err when it denied Kaballah's request to impeach the Commonwealth's witness, Carl Bruce, after he had stepped down from testifying.

During the Commonwealth's case-in-chief, it called Carl Bruce to testify. In a 2009 interview, Bruce told police that he saw two black males exiting a Sheppard Square apartment building after hearing gunshots and that one of them removed his white t-shirt and used it to wipe off his handgun before discarding those items. At trial, Bruce testified that he couldn't remember talking to the police. The Commonwealth then impeached Bruce with his 2009 interview statements, as well as statements from a 2013 interview with police, in which he stated that he lied in the first interview and was scared that people were conspiring to kill him.

On cross-examination, Kaballah attempted to discredit Bruce's testimony by asserting that he was mentally disabled. Kaballah asked Bruce about his competency hearing, and confronted him with statements he made at that hearing, specifically, his statement, “I see things that are not there.” Kaballah asked if Bruce had been diagnosed with paranoid schizophrenia. Bruce responded that he had never been diagnosed with a mental disorder. Kaballah also asked Bruce if he was “stoned” at the time of his interviews. Bruce answered that he could not recall. Kaballah then stopped his cross-examination, and Bruce left the witness stand.

During his case-in-chief, Kaballah informed the court that he wanted to impeach Bruce's testimony with video of the interview he gave during his pretrial competency hearing. Specifically, Kaballah complained that Bruce's testimony at trial regarding his having been treated for a mental illness and whether he was a drug addict was inconsistent with his statements during his competency hearing. Kaballah argued to the court that Kentucky Rule of Evidence (KRE) 613 does not require an impeachment to be contemporaneous to the witness's testimony, and that he had satisfied the rule's requirements.

KRE 613 provides, in pertinent part:

Examining witness concerning prior statement. Before other evidence can be offered of the witness having made at another time a different statement, he must be inquired of concerning it, with the circumstances of time, place, and persons present, as correctly as the examining party can present them ․

The court heard arguments from both parties before ruling that it would not allow Kaballah to impeach Bruce after he had been dismissed. Kaballah challenges that ruling.

We review a trial court's evidentiary ruling for abuse of discretion. Penman v. Commonwealth, 194 S.W.3d 237, 245 (Ky. 2006). A judge abuses his discretion when his decision is arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).

KRE 403 gives trial courts the discretion to limit the admission of relevant evidence where the “probative value is substantially outweighed by” various harmful effects, including the danger of “confusion of the issues, or misleading the jury.” KRE 403. Although the trial judge appears to have ruled against Kaballah based only on the judge's experience and his facial reading of KRE 613, we discern that presenting the video of Bruce's competency hearing in order to impeach the testimony he gave days before would mislead the jury and would have confused the issues for the jury—specifically who, in fact, was on trial: Bruce or Kaballah. See KRE 403. Thus, the trial judge acted within his discretion by denying Kaballah the opportunity to impeach Bruce in Kaballah's case-in-chief.

Bruce was extensively impeached by both parties using his prior interviews with police; as such, even if the trial judge had erred, that error would have been harmless. Furthermore, Kaballah does not direct this Court as to how he was harmed by being denied the opportunity to present cumulative evidence of Bruce's inconsistencies. Nonetheless, we hold that the trial court did not err in denying Kaballah's request to impeach Bruce after he stepped down from the witness stand.

B. The trial court did not err in denying Kaballah's motion for mistrial. Any error caused by the introduction of inadmissible evidence was cured by the trial court's admonishment to the jury.

During the Commonwealth's case-in-chief, it called Dashala Hamlett to testify. Hamlett had been in a relationship with Kaballah around the time of the shootings, and the Commonwealth called her to the stand, in part, to establish that she knew people referred to Kaballah using the name “Compton.” However, at trial, she testified that she could not recall what she told Detective Vance in an interview three years earlier. Specifically, she could not recall if she told Detective Vance that she knew anyone named “Compton.” The Commonwealth sought to impeach her testimony with a video recording of the interview. Kaballah objected and a bench conference was held.

At the bench conference, defense counsel adamantly objected to the Commonwealth using the recording to impeach Hamlett because, in addition to containing the subject matter of the impeachment, it contained various inadmissible statements prejudicial to Kaballah. The judge advised the Commonwealth to lay the proper foundation before impeaching Hamlett and to proceed with caution so as not to let in any more information than was necessary to impeach her statement. The Commonwealth then laid the foundation for impeaching Hamlett before playing the video in front of the jury. The jury heard the following:

Det. Vance: Do you know a guy named Compton?

Hamlett: I keep hearing that name. His name is Conrai.

Det. Vance: Yeah, how do you know him?

Hamlett: I used to talk to him a long time ago.

Det. Vance: I mean, what's a long time ago? A year, two years ago, three years ago?

Hamlett: It may have been three or four years because he just got out, then he got locked back up.

A bench conference was immediately held, in which defense counsel moved for a mistrial. The court heard arguments from both parties and, while the Commonwealth admitted it was at fault for playing the prejudicial statement, it argued the statement did not require a mistrial. The trial court denied defense counsel's motion for mistrial and chose to admonish the jury to disregard Hamlett's statement that Kaballah had been incarcerated.

“It is well established that the decision to grant a mistrial is within the trial court's discretion, and such a ruling will not be disturbed absent a showing of an abuse of that discretion.” Woodard v. Commonwealth, 147 S.W.3d 63, 68 (Ky. 2004). A mistrial is an extreme remedy and should not be used unless there is a fundamental defect resulting in manifest necessity for such an action. Id. (internal citation omitted). “The occurrence complained of must be of such character and magnitude that a litigant will be denied a fair and impartial trial and the prejudicial effect can be removed in no other way.” Gould v. Charlton Co., Inc., 929 S.W.2d 734, 738 (Ky. 1996).

The trial court was in the best position to determine if Hamlett's statement warranted a mistrial, and the trial court appropriately admonished the jury to disregard Hamlett's statement that Kaballah had been “locked up.” A jury is presumed to follow instructions to disregard evidence erroneously presented to it. Alexander v. Commonwealth, 862 S.W.2d 856, 859 (Ky. 1993), overruled on other grounds by Stringer v. Commonwealth, 956 S.W.2d 883, 891 (Ky. 1997).

In denying defense counsel's motion, the trial court correctly noted two circumstances where the presumptive efficacy of an admonition falters: (1) when “there is an overwhelming probability that the jury will be unable to follow the court's admonition and there is a strong likelihood that the effect of the inadmissible evidence would be devastating to the defendant”; and (2) when “the question was asked without factual basis and was inflammatory or highly prejudicial.” Dickerson v. Commonwealth, 485 S.W.3d 310, 322 (Ky. 2016) citing Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003) (internal quotation marks omitted).

We are convinced that neither exception to the presumption of admonition effectiveness is appropriate in the instant matter. We note that there is no evidence to suggest that the jury was unable to follow the court's admonition. And, given the additional evidence that the Commonwealth presented against Kaballah, including witness testimony and DNA evidence linking Kaballah to items found near the crime scene, Hamlett's statements were not “devastating” to Kaballah. Furthermore, because the prejudicial statements were elicited through Hamlett's impeachment, the question was not asked without a factual basis; thus, the second exception is equally inapplicable.

We hold that the trial court did not err in admonishing the jury and that the introduction of inadmissible evidence was cured by the admonition.

C. The trial court erred by admitting a recorded phone call between an inmate and one of the Commonwealth's witnesses. However, the error was harmless.

The Commonwealth called Marcus Whitehead to testify during its casein-chief. The police had attributed a statement to Whitehead following the subject-shooting, in which he allegedly told police he saw two black males running from the apartment and one of them used a white t-shirt to wipe off his handgun. However, at trial, Whitehead testified that he had not witnessed anyone leaving the Sheppard Square apartment complex following the shooting and, in fact, he never spoke to a police officer about the murders. He testified that, around the same time the subject-murders occurred, he had just turned twenty-one. As such, he let many of his underage friends use his identification card to get into bars, and any one of them could have given a statement to police using Whitehead's identity. The Commonwealth then sought to impeach Whitehead's testimony with a recorded phone call that an inmate, Marcus Greene, made to Whitehead. Greene was a friend of Whitehead's who was incarcerated with Kaballah.

In addition to filing a pretrial motion in limine to exclude the phone call—which was denied—Kaballah objected to the phone call's introduction as being more prejudicial than probative. See KRE 403. The trial court overruled that objection, and the recording was played in front of the jury.

During the phone call, Greene told Whitehead that he was in jail with a person involved in the “Sheppard Square shootings” and that the person had heard Whitehead was a witness to the shootings. Whitehead responded that he had already told his lawyer he would not testify because he knew nothing about the shootings, and that Greene's friend (i.e., Kaballah) didn't have to worry because Whitehead didn't see anything following the shooting. Greene never identified the person involved in the Sheppard Square shootings as Kaballah.

Kaballah challenges the admission of this recording, arguing that the recording was inadmissible as “prior bad acts” evidence under KRE 404(b), and that the recording contained inadmissible hearsay not within the co-conspirator exception, KRE 801A(b)(5). The Commonwealth argues that the recording was admissible because KRE 404(b) only excludes the “prior bad acts” of Kaballah, and that the phone call was not hearsay because it was offered to show that “[Whitehead] was simply acting upon what he had been told by Greene.” Additionally, the Commonwealth argues that, even if the recording contained hearsay statements, the recording falls under the public records exception, KRE 803. We are not persuaded by the Commonwealth's arguments and hold that the trial court's admission of the recorded phone call was error.

As we noted above, the Commonwealth offered the recorded phone call ostensibly to impeach Whitehead's testimony that he did not give a statement to the police. However, the recorded phone call was not inconsistent with Whitehead's testimony. In fact, the recorded phone call was consistent with Whitehead's testimony that he had not witnessed anything.

Given that the recording had no impeachment value, we look to the underlying relevancy of the phone call. KRE 401 defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” “Evidence which is not relevant is not admissible.” KRE 402. Furthermore, “[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” KRE 403.

In the instant matter, the recorded phone call does not make the existence of any consequential fact more or less probable than it would be without the evidence. The only information revealed from the phone call was that someone involved in the Sheppard Square shootings was incarcerated and that person knew Whitehead had given a statement to police. Neither of these facts is consequential to the determination of whether Kaballah murdered Takeisha Huff and Marion Jones. Furthermore, because of the scant information the recording revealed and its admission of the fact that Kaballah was incarcerated, the recording's prejudicial effect outweighed the complete absence of probative value. See KRE 403.

Although we discern that the trial court's admission of the recorded phone call was error, we hold that the error was harmless. Rule of Criminal Procedure (RCr) 9.24 requires that “no error or defect in any ruling ․ or in anything done or omitted by the court ․ is ground for granting a new trial or for setting aside a verdict ․ unless it appears to the court that the denial of such relief would be inconsistent with substantial justice.” Through Dashala Hamlett's testimony, the jury had previously heard that Kaballah had been incarcerated. After hearing that testimony, the court admonished the jury to disregard testimony indicating Kaballah's incarceration. We note that Kaballah did not request an admonition after the recorded phone call was introduced. Because the phone call did not identify Kaballah and implied nothing additional to what the jury had already heard and which they were admonished to disregard, the phone call's introduction, while error, was harmless.

D. The trial court erred in admitting evidence that Kaballah had previously been incarcerated in disciplinary segregation. However, the error was not palpable error.

Following the Commonwealth's attempted impeachment of Whitehead, the Commonwealth called Sergeant David Heacock to establish that Greene and Kaballah had been in close proximity while in jail. Sergeant Heacock testified that the two had been housed in the same cell block. Sergeant Heacock went on to explain that the particular cell block in which Greene and Kaballah were housed was disciplinary segregation: “[T]he inmates in that dorm are usually in there for disciplinary reasons or ‘admin SAG.’ They can't be housed in general population, so they're in their cell for twenty-three hours a day, they come out for one.”

Kaballah asks this Court to consider as sufficient preservation his pretrial objection to any evidence that Kaballah and Greene were incarcerated together and his objections, generally, to evidence that Kaballah was incarcerated. However, KRE 103(a)(1) permits an appeal on admission of evidence only if a timely objection was made at trial, and only when such objection “state[s] the specific ground for objection ․” Additionally, while KRE 103(d) does provide that a “motion in limine resolved of record is sufficient to preserve error for appellate review[,]” this Court has determined that preservation is insufficient when a party makes a “blanket motion in limine.” See Lanham v. Commonwealth, 171 S.W.3d 14, 21 (Ky. 2005). In Tucker v. Commonwealth, 916 S.W.2d 181, 183 (Ky. 1996), this Court noted:

An objection made prior to trial will not be treated in the appellate court as raising any question for review which is not strictly within the scope of the objection as made, both as to the matter objected to and as to the grounds of the objection. It must appear that the question was fairly brought to the attention of the trial court ․ One claiming error may not rely on a broad ruling and thereafter fail to object specifically to the matter complained of.

While Kaballah's motion in limine challenged any introduction of evidence that he and Greene conspired to intimidate one of the Commonwealth's witnesses, Kaballah now challenges, specifically, Sergeant Heacock's testimony that Kaballah was incarcerated in disciplinary segregation for twenty-three hours every day. In light of our guiding precedent, Kaballah's instant challenge is outside the scope of his motion in limine; therefore, he did not sufficiently preserve the issue for appellate review under the abuse of discretion standard. In the alternative, however, Kaballah asks this Court to review his challenge under the palpable error standard. See RCr 10.26.

An unpreserved error may generally be noticed on appeal if the error is “palpable” and if it “affects the substantial rights of a party.” Id. Even then, relief is appropriate only “upon a determination that manifest injustice resulted from the error.” Id. “For an error to rise to the level of palpable, it must be easily perceptible, plain, obvious and readily noticeable.” Doneghy v. Commonwealth, 410 S.W.3d 95, 106 (Ky. 2013) (internal citation omitted).

In this challenge, as with the issue of Whitehead's impeachment above, there was no relevance to the trial court's admission of testimony that Kaballah was incarcerated with Greene. Even assuming that Whitehead's testimony had been inconsistent with the recorded phone call from jail—i.e., the foundation for which Sergeant Heacock's testimony was laid—the recorded phone call identified neither Kaballah nor what, if anything, Kaballah told Greene. Furthermore, the recording did not evidence Greene telling Whitehead to do anything. Thus, we discern no probative value in Sergeant Heacock's testimony regarding the proximity of Kaballah to Greene while incarcerated.

Sergeant Heacock's testimony that Kaballah was in disciplinary segregation and was in his cell twenty-three hours every day was highly prejudicial to Kaballah and certainly constituted error. However, given the Commonwealth's extensive evidence against Kaballah, the trial court's error did not result in manifest injustice. See RCr 10.26. This evidence included three items found within hours of the shooting, located together near the apartment where the murders occurred: a handgun containing a number of spent cartridges equal to the number of entrance wounds found on victim, Takeisha Hunt;¹ a baseball cap containing Kaballah's DNA; and a t-shirt containing both Kaballah's DNA and the presence of GSR. Therefore, while the trial court's admission of Sergeant Heacock's testimony was error, it was not palpable error.

E. The trial court did not err by admitting expert testimony regarding GSR on a white t-shirt found at the crime scene.

Prior to trial, Kaballah sought to exclude evidence of GSR found on a white t-shirt near the crime scene. Kaballah asserted that the possibility of cross-contamination rendered the GSR-test unreliable. Kaballah's argument centered on the five-year delay in testing the t-shirt, and the fact that the t-shirt had been held in the police evidence locker with other items containing GSR and possible DNA. The trial court held a Daubert hearing ² in which Kaballah argued that GSR evidence is increasingly met with skepticism by the scientific community because of the high possibility of cross-contamination with other sources. Although Kaballah noted that the FBI stopped using GSR-testing due to concerns about its reliability, Kaballah could not cite a single case in which an appellate court, in any jurisdiction, ruled that GSR evidence was unreliable and, therefore, inadmissible. To this argument, the Commonwealth responded that Kaballah's concerns of cross-contamination go to the weight of the evidence before the jury, not the admissibility. The Commonwealth argued that Daubert's purpose is not to assign weight to the evidence but to determine if the scientific principles at issue are reliable. After hearing both parties, the trial court issued an Order detailing their arguments and denying Kaballah's motion to exclude GSR evidence and testimony.

KRE 702 “incorporate[s] guidance by the [United States] Supreme Court in Daubert.” Futrell v. Commonwealth, 471 S.W.3d 258, 280 (Ky. 2015) (internal citation omitted). KRE 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data (2) the testimony is the product of reliable principles and methods and (3) the witness has applied the principles and methods reliably to the facts of the case

A trial court must assess proffered expert testimony by determining whether the testimony “both rests on a reliable foundation and is relevant to the task at hand.” Daubert, 509 U.S. at 597. “In making its reliability determination, the trial court must consider whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology properly can be applied to the facts in issue.” Futrell, 471 S.W.3d at 282 (internal citation omitted). We review a trial court's ruling on whether to admit expert testimony under the abuse of discretion standard. Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000).

In its Order denying Kaballah's motions, the trial court cited Kentucky precedent in Barnes v. Commonwealth, 91 S.W.3d 564 (Ky. 2002), and Sixth Circuit precedent in United States v. Stafford, 721 F.3d 380 (6th Cir. 2013), affirming the admission of GSR-expert testimony. Stafford, as did Kaballah, challenged the process by which GSR evidence was obtained. Id. at 394. Specifically, Stafford complained that the police failed to bag the defendant's hands and did not swab his hands for GSR until he was booked. Id. Stafford argued that “the possibility of inadvertent transfer of gunshot-residue particles to a suspect's hands creates prejudice that outweighs the test's probative value.” Id. However, the Sixth Circuit held that Stafford's argument went to “the admissibility of circumstantial evidence, not the admissibility of scientifically reliable evidence.” Id.

We find the Sixth Circuit's holding persuasive. The trial court appropriately followed this Court's and the Sixth Circuit's precedent and was within its discretion to deny Kaballah's motion to exclude GSR evidence and testimony. As such, the trial court did not err in admitting expert testimony regarding GSR.

Kaballah also asserts that the trial court erred by admitting testimony of the Commonwealth's expert witness, John Clem, a forensic scientist at the Kentucky State Police Laboratory. Specifically, Kaballah argues that Clem did not apply the principles and methods reliably to the facts of the case, as required by KRE 702. It appears that Kaballah makes the same argument he made regarding GSR evidence in general: that the possibility of cross-contamination renders GSR evidence unreliable and, therefore, inadmissible. As we held above, the trial court correctly ruled that the possibility of cross-contamination based on the t-shirt's chain-of-custody goes to the weight of the evidence, not its admissibility. Accordingly, the trial court did not err in admitting Clem's testimony.

F. Kaballah waived any challenge to Detective Alpiger's improper expert testimony.

Finally, Kaballah complains that the trial court erred when it permitted Detective Dan Alpiger to give what Kaballah asserts was improper expert testimony. The Commonwealth called Detective Alpiger, Lead Detective in the Sheppard Square investigation, to testify to the crime scene upon his arrival. Following Kaballah's cross-examination of Detective Alpiger, the jury submitted questions to the witness, two of which are pertinent here: “Why wait so long before ballistics were performed? Would the time make a difference?”

The trial court called a bench conference, and read the jury's questions to the parties. The Commonwealth objected to the questions being asked, arguing that the questions would be better answered through a ballistics expert later in the trial. Kaballah, on the other hand, argued that if Detective Alpiger knew the answer, he could testify to that knowledge. After the trial court asked Detective Alpiger the jury's questions, he answered: “With ballistics, the time does not make a difference—” At that point, Kaballah objected.

The trial court, again, held a bench conference. This time, however, Kaballah argued that “it was a two-part question” and the latter question required expert testimony. The Commonwealth responded that Kaballah waived his challenge to Detective Alpiger's response when he failed to make an objection following the questions being read to the parties in the preceding bench conference. The Commonwealth noted that the question of “why the police waited so long before ballistics tests were performed” was a broad question that elicited a broad answer and, thus, by not objecting to the question, Kaballah opened the door to whatever answer Detective Alpiger gave.

“This situation presents circumstances akin to those where an appellant has ‘invited error.’ ” Gray v. Commonwealth, 203 S.W.3d 679, 686 (Ky. 2006). See also Wright v. Jackson, 329 S.W.2d 560 (Ky. 1959) (“We have often held that a party is estopped to take advantage of an error produced by his own act.”), and Miles v. Southeastern Motor Truck Lines, 173 S.W.2d 990, 998, 295 Ky. 156, 173 (1943) (“It is the rule that one cannot complain of an invited error.”). Generally, a party is estopped from asserting an invited error on appeal. Gray, 203 S.W.3d at 686. “A defendant cannot complain on appeal of alleged errors invited or induced by himself, particularly where ․ it is not clear that the defendant was prejudiced thereby.” United States v. Lewis, 524 F.2d 991, 992 (5th Cir. 1975), cert. denied, 425 U.S. 938, 96 S.Ct. 1673, 48 L.Ed.2d 180 (1976).

In the instant matter, Kaballah waived his right to challenge Detective Alpiger's complained-of testimony when Kaballah argued to the trial court that the Detective should be allowed to answer the questions. Kaballah may not seek appellate review merely because, as the Commonwealth stated, “he didn't get the answer he wanted.”

We hold that any error by the trial court in permitting Detective Alpiger to answer the juror's question was invited error on the part of Kaballah and such errors are not reviewed by this Court. Furthermore, Kaballah does not direct this Court as to how Detective Alpiger's testimony was harmful to his case. While he takes issue with the time it took to have the ballistics tests performed, Kaballah does not indicate how the time between collecting the firearms found at the scene and the testing of the firearms actually prejudiced him. Thus, even if Kaballah had not waived his challenge to this testimony, he has failed to show how the error would have been harmful.

IV. CONCLUSION

For the foregoing reasons, the judgment of the Jefferson Circuit Court in this matter is affirmed.

All sitting. All concur.

FOOTNOTES

1.   We note that the Commonwealth's ballistics expert testified that, while he could trace the bullets found in the victims to the classes of handguns found near the crime scene, he could not trace the bullets to the specific handguns found.

2.   See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).