Partin v. Commonwealth

STUMBO, Justice,

dissenting.

Respectfully, I must dissent.

This was a dreadfully gruesome murder, of that there is no doubt. The gruesomeness of *225 the crime, however, is not grounds for affirming a conviction obtained through the use of inadmissible evidence and improper argument.

The majority finds, without explaining how it reached such a conclusion, that the evidence of decedent’s fear of appellant had more probative value than prejudicial effect. Yet, nowhere is the probative value explained. The decedent’s state of mind was not in issue, as there was no claim of self-defense, accidental death, or suicide; thus, there was “little relevancy except toward providing a strong inference of appellant’s intent, actions or culpability.” Shults v. Nevada, 96 Nev. 742 , 616 P.2d 388, 394 (1980). The majority treats this inference as a ground for admissibility, when, in fact, Shults holds just the reverse. This is particularly true in a case such as this where there is virtually no physical evidence to tie appellant to this crime. No effort is made to distinguish Shults , or in any way to set forth what fact is made more probable, or less probable, than it would be without the evidence. KRE 401.

Additionally, I cannot agree that the complained of error in the Commonwealth’s closing argument was, at best, harmless error. As the majority opinion notes, appellant sought, unsuccessfully, to introduce evidence that the decedent had engaged in other romantic liaisons. That anticipated testimony was mentioned in appellant’s opening argument, but when the time came to introduce this evidence, the trial court refused to allow the testimony. We have affirmed that ruling. During closing argument, the Commonwealth made the following statement: “Other affairs — no evidence on it. While she’s dead and buried, its easy to make accusations. If there’s proof, bring these people in like they said they would do. They didn’t come.”

An argument by the Commonwealth referring to testimony to which the trial court has sustained an objection is prejudicial. As this Court stated in Moore v. Commonwealth, Ky., 634 S.W.2d 426, 437-38 (1982):

It is a fundamental precept that a prosecutor must conduct himself with “... due regal’d to the proprieties of his office and to see that the legal rights of the accused, as well as those of the Commonwealth, are protected.” (citations omitted) The principles under which the conduct of a prosecuting attorney is judged are well stated in Niemeyer v. Commonwealth, Ky., 533 S.W.2d 218, 222 (1976):

One of the finest offices the public can give to a member of the legal profession in this state is that of Commonwealth’s Attorney. Its very status becomes a mantle of power and respect to the wearer. Though few are apt to wear it lightly, some forget, or apparently never learn, to wear it humbly. No one except for the judge himself is under a stricter obligation to see that every defendant receives a fair trial, a trial in accordance with the law, which means the law as laid down by the duly constituted authorities, and not as the prosecuting attorney may think it ought to be.

In spite of a ruling of the trial court that evidence of other affairs of the decedent was inadmissible, the prosecutor stated that “[i]f there’s proof, bring these people in like they said they would do. They didn’t come.” The effect of this comment was to insinuate that the defense really did not possess such witnesses. “The decisions of courts, until overruled, must be respected and obeyed by trial counsel.” Moore, 634 S.W.2d at 438 . I would hold that the Commonwealth’s comments were improper and prejudicial to the rights of the appellant, and would reverse and remand for a new trial.