Copley v. Commonwealth

854 S.W.2d 748, 1993 Ky. LEXIS 65, 1993 WL 75972
CourtKentucky Supreme Court
DecidedMarch 18, 1993
Docket91-SC-850-MR
StatusPublished
Cited by28 cases

This text of 854 S.W.2d 748 (Copley v. Commonwealth) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Copley v. Commonwealth, 854 S.W.2d 748, 1993 Ky. LEXIS 65, 1993 WL 75972 (Ky. 1993).

Opinions

WINTERSHEIMER, Justice.

This appeal is from a judgment based on a jury verdict which convicted Copley of first-degree manslaughter and sentenced him to twenty years in prison.

The issues presented are whether the jury panel and jury selection process was proper; whether the admission into evidence of testimony of various witnesses and exhibits including photographs was proper; whether it was error to preclude the defendant from impeaching the testimony of a Commonwealth witness; whether the admission of rebuttal testimony was reversible error; whether there was prose-cutorial misconduct and whether it was error to overrule a motion for a new trial.

Copley was charged with the shooting death of his ex-girlfriend’s current boyfriend in a shopping center parking lot. He relied on the defense of self-protection. Testimony at trial from various witnesses indicated that both Copley and the victim had guns pointed at each other in the parking lot. Just prior to the shooting Copley handed his weapon back to his nephew and the victim got into his car and was seated in the driver’s seat. Copley got the weapon back and shot the victim twice behind the left ear at close range. Several witnesses testified that Copley stated immedi[750]*750ately prior to the shooting “He’s done pulled a gun on me. If I kill him now it’s self defense.” Upon conviction, this appeal followed.

There was no reversible error in the trial judge’s actions concerning the initial selection of the jury panel or the jurors subsequently accepted or rejected. There is no requirement that the initial panel must be first exhausted. Jury selection was conducted in accordance with K.R.S. 29A.060(10) and RCr 9.30(2) and the directions of Asher v. Commonwealth, Ky.App., 614 S.W.2d 249 (1980). Copley’s contention that it is improper to merge a new venire with an existing panel is without merit.

The argument that the excusal of the elementary school principal prior to voir dire was improper is without merit. Copley has not made the basis of his claim for error a part of the record in this case. A claim which is unsupported by the record cannot be considered on appellate review. Ford v. Commonwealth, Ky., 472 S.W.2d 261 (1971). This Court will not search the record in order to find error which counsel has failed to present. Young v. Newsome, Ky., 462 S.W.2d 908 (1971).

The trial judge did not commit reversible error by excusing another juror who was principal at the Jamestown Elementary School. The trial judge did not abuse his discretion under the circumstances. K.R.S. 29A.100.

Copley also objected to employees of Union Underwear being present on the jury panel. He argues that prejudice occurred as a result thereof because both the victim and his girlfriend were employed at the underwear plant. Such an association of itself is insufficient to excuse a juror. There was testimony that between three and four thousand persons are employed at the plant. Copley has failed to demonstrate that the refusal to discharge the fellow employees amounted to reversible error. Polk v. Commonwealth, Ky.App., 574 S.W.2d 335 (1978).

A careful examination of the record indicates that the trial judge did not err when he overruled the objections of the defense to the admission of photographs, dismissal of the indictment and the motion to dismiss. In addition, the testimony of Nancy Roy, Brenda Fox and Officer Barrett was admissible. Copley did not suffer undue prejudice as a result of the exclusion of part of his taped statement.

In regard to the photographs, Copley objected to their introduction claiming that a proper foundation had not been laid. On appeal, he also argues that the introduction of the photos was solely for the purpose of inflaming the jury.

The prosecution presented sufficient evidence to show that the photos were taken at the scene and there was no tampering by police. The limited check by emergency medical technicians to determine the condition of the victim’s vital organs does not support Copley’s theory of tampering. The claim that the photos should have been inadmissible because they were gruesome is without merit. Gruesomeness alone cannot be the basis for exclusion of photos. Epperson v. Commonwealth, Ky., 809 S.W.2d 835 (1991). The photos showed the position of the body in the automobile and the position of the gun barrel resting down between the bucket seats which discredited Copley’s claim of self-defense. This is not a situation such as existed in Holland v. Commonwealth, Ky., 703 S.W.2d 876 (1986). The claim that the photographs were taken somewhere other than the crime scene was without foundation.

Copley argues that the testimony of the coroner and of one of the investigating officers was suspect because they prepared notes and reports of their findings and these notes and pictures were not provided during discovery. In both instances the prosecution was unaware that such materials existed, and Copley’s counsel was afforded an opportunity to review the photographs and the reports prior to the testimony. Copley has failed to demonstrate that he suffered any prejudice as a result of the documents. The coroner did not introduce any photographs at trial and the officer did [751]*751not rely on the so-called daily log notes. Any possible error was totally nonpreiudi-cial. RCr 9.24.

It was not reversible error for the trial judge to refuse to dismiss the indictment because the prosecution had failed to provide notice of test results performed on the weapon found in the victim’s car. Copley’s motion for discovery included a request for any scientific tests performed in the case. During the testimony of Detective Bailey, Copley objected when the prosecution asked whether a fingerprint analysis of the victim’s weapon had been conducted. The officer responded affirmatively. A hearing was held outside the presence of the jury to review the police report. The officer had dusted for fingerprints but found none. He had omitted that information from his report. The officer stated that he advised defense counsel that no prints had been found on the weapon. A lab test was not performed under the circumstances. The trial judge prohibited the introduction of the test results and denied the motion to dismiss. Copley did not request an admonition. The trial judge’s ruling was correct. Since test results were not reduced to writing, it is not error that the prosecution failed to provide such evidence. Cf. Kendricks v. Commonwealth, Ky., 557 S.W.2d 417 (1977). Any error was harmless.

Copley also argues that reversible error occurred when the prosecution was allowed to admit portions of an audio tape of his statement. He claims that the exclusion prevented him from proving his defense that the victim was the aggressor. The trial judge permitted the prosecution to excise portions regarding a conversation for an alleged contract for death on the basis of hearsay.

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Copley v. Commonwealth
854 S.W.2d 748 (Kentucky Supreme Court, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
854 S.W.2d 748, 1993 Ky. LEXIS 65, 1993 WL 75972, Counsel Stack Legal Research, https://law.counselstack.com/opinion/copley-v-commonwealth-ky-1993.