Gosser v. Commonwealth

31 S.W.3d 897, 2000 Ky. LEXIS 158, 2000 WL 1736870
CourtKentucky Supreme Court
DecidedNovember 22, 2000
Docket1997-SC-0946-MR, 1997-SC-0947-MR
StatusPublished
Cited by32 cases

This text of 31 S.W.3d 897 (Gosser 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
Gosser v. Commonwealth, 31 S.W.3d 897, 2000 Ky. LEXIS 158, 2000 WL 1736870 (Ky. 2000).

Opinions

JOHNSTONE, Justice.

Appellant, Mark Alan Gosser, was convicted of wanton murder in the Pulaski Circuit Court, and was sentenced to twenty years’ imprisonment. He appeals to this Court as a matter of right. We affirm.

Gosser’s conviction stems from the events of February 9-10, 1996, when a party was held at a home in Somerset, Kentucky. Witnesses testified that Gosser went to the party to find Danny Abbott, with whom Gosser had a dispute a few days before. Abbott blamed Gosser for slashing his tires, and Gosser thought Abbott had set him up to-be arrested.

At some point after Gosser arrived at the party, he saw Abbott and the two stepped outside to settle their dispute. They began to argue, and a crowd gathered in anticipation of a fight. Shortly thereafter, Christopher Ryan Parmalee, a friend of Gosser, came outside, and he and Abbott began to fight. Gosser briefly entered the fight, then stepped back, pulled [900]*900out a gun, and fired it. Although several witnesses testified that Gosser fired the gun while it was pointed at Abbott, Gosser maintained that the positioning of the participants in the fight made it impossible for the gun to be pointed at Abbott, and that he fired the gun only to break up the fight between Abbott and Parmalee.

In any event, the shot fired by Gosser hit Britt Bell in the center of his chest, and Bell died approximately seven hours after arriving at the hospital. Gosser was tried and convicted of wanton murder, and was sentenced to twenty years’ imprisonment. This appeal followed.

On appeal, Gosser presents three issues: (1) whether the trial court erred in admitting into evidence photographs and computer-generated models of the crime scene that were prepared by the police; (2) whether the trial court erred in denying Gosser a continuance; and (3) whether the trial court erred in fading to grant a mistrial because the Commonwealth made a key witness unavailable to testify. For the reasons set forth below, we affirm Gosser’s conviction.

On cross-appeal, the Commonwealth presents one issue: whether the trial court erred in excluding statements made by Britt Bell after he was shot, because those statements constituted a dying declaration. The Commonwealth has requested review of this issue only if Gosser’s conviction is reversed and remanded for a new trial. Because we affirm Gosser’s conviction, we will not consider the issue presented on cross-appeal.

I. ADMISSION OF POLICE-CREATED PHOTOGRAPHS AND COMPUTER DIAGRAMS

Gosser argues that the trial court erred by admitting Commonwealth’s Exhibits 7, 8, 9 and 10. Exhibits 7 and 8 are photographs of the crime scene in which the police had planted colored flags and had made spray-painted marks to show the locations of individuals and evidence at the time of the shooting. Exhibit 9 is a two-dimensional computer-generated diagram of the crime scene. Exhibit 10 is a three-dimensional computer-generated diagram of the crime scene.

Exhibits 7 and 8, the Photographs

These exhibits were admitted through the Commonwealth’s first witness, Detective Rice. When the Commonwealth sought to admit Exhibits 7 and 8, Gosser objected on two separate grounds: (1) that the photos did not fairly and accurately depict the area photographed on the night of the shooting; and (2) that the photographs were “composite” diagrams for which the Commonwealth had not laid the proper foundation for their admission. The trial court overruled the objections and admitted the photographs subject to Gosser’s right to cross-examine Detective Rice and other witnesses on how the information was obtained. On direct examination, Detective Rice identified who or what each colored flag and spray-painted mark in Exhibit 7 represented and explained how the reconstruction of the crime scene represented in the photograph was prepared in the following manner:

Prosecutor: OK. Now what did you rely upon in determining the positions of the various witnesses to the shooting?
Rice: The witnesses] statements....
Prosecutor: OK. Did you take any witness with you when you did the reconstruction of the actual shooting itself?
Rice: Yes. We had one witness come out ... Jimmy Dan Carroll.
Prosecutor: And with his assistance!,] and relying upon the [other] witnesses’ statements that had been taken by the police department!,] were you able to reconstruct where the witnesses were standing at the time of the shooting?
Rice: Yes.
Prosecutor: OK. And how did you do that — do that reconstruction?
[901]*901Rice: We just had a working knowledge ourselves through our witnesses as to where they were positioned and we had Jimmy Dan Carroll pointing out to us where different witnesses were standing, where those involved, the three individuals were at, and we placed orange flags, repositioning of these individuals.
Prosecutor: OK. Now, after you placed the orange flags[,] did you take some photographs of that?
Rice: Yes. Lieutenant Gary Jones took photographs.
Prosecutor: OK. But you were out there.
Rice: Yes, sir. I was videoing.

Detective Rice then testified that the photograph fairly and accurately depicted the reconstruction as it appeared when photographed. Detective Rice’s testimony concerning Commonwealth’s Exhibit 8, the aerial photograph, was similar.

It was improper for the Commonwealth to introduce Exhibits 7 and 8 through Detective Rice. While the exhibits ai’e physical photographs, they were used by the Commonwealth as diagrams of the crime scene to show the locations of various witnesses, the defendant, the victim, and the murder weapon. Detective Rice, who was not present at the crime at the time of the shooting, did not have personal knowledge of the location of the persons and the items represented in the photographs at the time of the shooting. His testimony to that effect was based on hearsay.

Nor was Detective Rice’s testimony necessary to show how the crime scene reconstruction was prepared. The introduction of a map or diagram made prior to trial is in “no wise different from one drawn by a witness in the presence of the jury.” Cook v. Commonwealth, Ky., 232 Ky., 613, 24 S.W.2d 269, 271 (1930). In State v. Furlough, 797 S.W.2d 631 (Tenn.Crim.App.1990), the defendant objected on hearsay grounds to the introduction of a diagram of the crime scene. Id. at 646. The diagram had been prepared by the investigating officer, who did not testify. Id. The Furlough court determined that the diagram, while based on hearsay, should not be excluded as such, stating:

As long as the witness has personal knowledge of the subject matter and the diagram is accurate, drawings drafted out of court are admissible despite the hearsay rule. The in-court authentication of the drawing is the assertion permitting cross-examination of its accuracy. That is sufficient to satisfy the hearsay objection.

Id. at 647 (internal citations omitted).

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Bluebook (online)
31 S.W.3d 897, 2000 Ky. LEXIS 158, 2000 WL 1736870, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gosser-v-commonwealth-ky-2000.