Jerard Garrett v. Commonwealth of Kentucky

534 S.W.3d 217
CourtKentucky Supreme Court
DecidedDecember 14, 2017
Docket2016-SC-000263-MR
StatusUnknown
Cited by27 cases

This text of 534 S.W.3d 217 (Jerard Garrett v. Commonwealth of Kentucky) 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
Jerard Garrett v. Commonwealth of Kentucky, 534 S.W.3d 217 (Ky. 2017).

Opinion

OPINION OF THE COURT BY

JUSTICE VANMETER

Jerard Garrett appeals as a matter of right from a judgment of the Jefferson Circuit Court sentencing him to life in prison without the possibility of parole for twenty-five years for two counts of murder, two counts of first-degree robbery, one count of first-degree wanton endangerment, and one count of terroristic threatening. For the following reasons, we affirm the judgment and sentence.

I. BACKGROUND.

In one indictment, a Jefferson County grand jury charged Garrett and his co-defendant, Billy Richardson, with one count each of murder, first-degree robbery, first-degree wanton endangerment, third-degree terroristic threatening, and being a first-degree persistent felony offender (“PFOl”), arising from the murder of Jamie Young on December 29, 2012. In a separate indictment, the grand jury charged Garrett and Richardson with one count each of murder and first-degree robbery, arising from the murder of Kenny Forbes on December 23, 2012. Over Garrett’s objection, the trial court consolidated the charges in the two indictments for trial. Pursuant to RCr 1 6.18, the trial court found that the defendants’ practice of scheduling meetings through a known intermediary to conduct a drug transaction, then robbing the victim, was sufficiently unique to warrant joinder of the charges and consolidation of the indictments. Garrett now challenges this decision of the trial court, as well as several of its other decisions. We do not find any of Garrett’s challenges to have merit.

II. ANALYSIS.

a. The Trial Court Did Not Abuse Its Discretion by Admitting the Commonwealth’s Ballistics Evidence.

Garrett suggests, as a general matter, that an opinion from a firearm and toolmark examiner that a particular bullet was fired from a particular gun should no longer be admissible in criminal trials in Kentucky. We note that ballistics testimony has been allowed by this Court since at least 1948. Morris v. Commonwealth, 306 Ky. 349, 208 S.W.2d 58 (1948). Still, Garrett argues that the methodology and reliability of the Commonwealth’s ballistic examiner’s testimony that bullets found at both murder scenes were fired from the same weapon did not meet the criteria set forth in KRE 2 702 for admissibility, and therefore should not have been admitted. After conducting Daubert 3 hearings on the admissibility of testimony from the Commonwealth’s Kentucky State Police (“KSP”) firearms expert, Leah Collier, and Garrett’s expert, William Tobin, a forensic metallurgist materials scientist who worked for the FBI for 27 years, the trial court concluded that both experts’ testimony would be admissible.

This Court reviews a trial court’s ruling on the admissibility of expert testimony for an abuse of discretion unless the challenge is to the trial court’s findings of fact regarding the Daubert factors, which we review for clear error. Miller v. Eldridge, 146 S.W.3d 909, 915 (Ky. 2004). Because Garrett challenges the trial court’s preliminary factual determination as to the reliability of ballistic evidence under Daubert, we review for clear error.

Daubert assigns the trial court the role of “gatekeeper” charged with preventing the admission of unreliable, pseudosci-entific evidence:

[T]he trial judge must determine at the outset ... whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.

Daubert, 509 U.S. at 592-93, 113 S.Ct. at 2796 (footnote omitted); KRE 702.

The trial court may consider the following factors in assessing the reliability of expert testimony:

(1) whether a theory or technique can be and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether, with respect to a particular technique, there is a high known or potential rate of error and whether there are standards controlling the technique’s operation; and (4) whether the theory or technique enjoys general acceptance within the relevant scientific, technical, or other specialized community.

Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 578-79 (Ky. 2000) (citing Daubert, 509 U.S. at 592-94, 113 S.Ct. at 2796-97). “In addition to being reliable, the proposed testimony must assist the trier of fact to understand' the evidence or to determine a fact in issue. This condition goes primarily to relevance.” Miller, 146 S.W.3d at 914 (internal quotations and citation omitted).

Garrett maintains that ’ the scientific community has attacked and refuted the reliability of the'premises and methods of specific source attribution in ballistics’ analysis, thus rendering Collier’s testimony incompetent. In support of his position, Garrett primarily relies on a 2009 National Research Council’s report titled Strengthening Forensic Science in the United States: A Path Forward (“NRC Report”), which calls into question the validity of the assumptions about tóolmarks that underlie firearms identification. However, the Association of Firearm and Toolmark Examiners (“AFTE”) theory of identification, which Collier testified she utilized and which the federal courts have recently held satisfies. Daubert, permits a conclusion that two or.more bullets are of common origin “when the microscopic surface contours of the toolmarks are in sufficient agreement.” United States v. Otero, 849 F.Supp.2d 425 (D.N.J. 2012), aff'd 557 Fed.Appx. 146 (3rd Cir. 2014).

In Otero, the defendants sought to exclude the testimony of the government’s firearms examiner that a bullet was discharged by a specific weapon. 849 F.Supp.2d at 427. The Otero court recognized that the AFTE theory of identification innately contains a subjective component in determining “sufficient agreement” which “must necessarily be based on the examiner’s training and experience,” Id. at 432. In assessing the admissibility of the firearm examiner’s testimony, the Otero court meticulously analyzed -the -Daubert factors and found the proffered testimony satisfied each one. Id. at 431-435.

Specifically, the Otero court found that “the AFTE theory is testable and has been tested.” Id. at 432. The court acknowledged thé sanie ÑRC Report, úpon which Garrett relies, and found that while the toolmark identification procedures “do indeed involve some degree of subjective analysis and reliance upon the expertise and experience of the examiner” the methodology is reliable. Id. at 438.

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Bluebook (online)
534 S.W.3d 217, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jerard-garrett-v-commonwealth-of-kentucky-ky-2017.