Opinion
NO. 2014-CA-000483-MR
05-22-2015
COMMONWEALTH OF KENTUCKY APPELLANT v. TREMEL SMITH APPELLEE
BRIEF FOR APPELLANT: Jack Conway Attorney General of Kentucky Lynn Pryor Special Assistant Attorney General Frankfort, Kentucky ORAL ARGUMENT FOR APPELLANT: Robert Long Frankfort, Kentucky BRIEF AND ORAL ARGUMENT FOR APPELLEE: Linda Roberts Horsman Assistant Public Advocate Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE JOHN L. ATKINS, JUDGE
ACTION NO. 11-CR-00210
OPINION
AFFIRMING
BEFORE: J. LAMBERT, STUMBO AND TAYLOR, JUDGES. STUMBO, JUDGE: The Commonwealth of Kentucky appeals from two orders of the Christian Circuit Court. One order denied the Commonwealth's motion for an independent mental health evaluation (IME) of Tremel Smith. The other order prohibited the Commonwealth from presenting evidence regarding tire tread impressions. We find no error and affirm.
On April 29, 2011, Mr. Smith was indicted on a number of criminal counts surrounding the murder of Susan James. During the pre-trial phase, Mr. Smith filed a motion pursuant to RCr 8.07(2)(A)(iii) which put the court and the Commonwealth on notice that he intended to introduce expert evidence relating to a mental condition that could have a bearing on the issues of guilt and punishment. The Commonwealth filed no response to that motion.
On January 17, 2014, Mr. Smith filed a motion to exclude the death penalty pursuant to KRS 532.130, KRS 532.135, and KRS 532.140. Those statutes make it illegal to execute an offender with an I.Q. of 70 or below. Mr. Smith had an IME and the doctor who performed the evaluation would later testify that Mr. Smith's I.Q. was 67. The Commonwealth filed a motion in opposition on January 29, 2014. In that motion, the Commonwealth requested that it be allowed to conduct its own IME of Mr. Smith. The trial court granted Mr. Smith's motion to exclude the punishment of execution. It also denied the Commonwealth's motion for an IME. The court held that the Commonwealth's motion was untimely.
On January 23, 2014, Mr. Smith filed a motion to exclude testimony concerning tire tread comparison. When Mr. Smith was arrested, he was found in possession of the victim's vehicle. The Commonwealth sought to introduce evidence concerning the comparison of the tire treads found on the victim's vehicle and those found at the crime scene, which were preserved by making a plaster cast. To elicit this testimony, the Commonwealth was going to call as a witness Detective K.C. Beymer, the Evidence Technician for the Hopkinsville Police Department. Mr. Smith's motion argued that Detective Beymer was not an expert in tire tread comparison and requested that the evidence be excluded. On February 21, 2014, the court granted the motion and excluded this testimony. The court also prohibited the Commonwealth from showing the jury any pictures of the tires found on the victim's vehicle and pictures of the tire tread plaster casts.
This order was not in writing, but done orally on the record.
Immediately following the court's ruling, the Commonwealth requested a more thorough comparison to be made by the Kentucky State Police Forensic Laboratory. A report was prepared by the Kentucky State Police lab and provided to the Commonwealth on March 17, 2014. The Commonwealth then informed the court and Mr. Smith of the report. That same day, Mr. Smith filed a motion to prohibit the introduction of this new evidence on the grounds that it was filed late and too close to the trial date of March 20, 2014.
On March 20, the trial court heard arguments regarding various outstanding issues. One such issue was the new expert tire tread evidence. The court granted the motion to prohibit the evidence. In granting the motion, the court made a notation in the record which stated: "Granted. Law of Case - Late Filing Discovery Violation." The Commonwealth then filed this interlocutory appeal.
The proper standard for review of evidentiary rulings is abuse of discretion. Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
The first issue on appeal is the trial court's denial of the Commonwealth's motion for an IME of Mr. Smith. RCr 8.07(2)(A) and (B) are controlling on this issue. RCr 8.07(2)(A) states:
(2) Mental Disease, Mental Defect or Other Mental Condition Bearing on Issue of Guilt or Issue of Punishment; Notice; Mental Examination.RCr 8.07(2)(B) states:
(A) Notice by Defendant. A defendant who intends to introduce expert evidence relating to a mental disease or defect or any other mental condition of the defendant bearing on--
(i) the issue of guilt;
(ii) the issue of punishment; or
(iii) the issue of guilt and the issue of punishment;
shall, not less than ninety (90) days before the date set for commencement of trial of the alleged offense, file a notice in writing of this intention with the clerk and serve a copy of the notice upon the attorney for the Commonwealth and all other parties. The notice shall specify whether the defendant intends to introduce expert evidence bearing on the issue of guilt, the issue of punishment or both such issues. The court shall, for good cause, allow the defendant to file the notice late, grant a continuance of the trial or of any other proceedings, modify scheduling orders, or make other appropriate orders.
(B) Motion by Commonwealth for Examination of Defendant. If the defendant files a notice under Rule 8.07(2)(A), the attorney for the Commonwealth may,
within ten (10) days of the filing of that notice, file a motion with the clerk for the court to order the defendant to be examined and serve a copy of the motion upon counsel for the defendant and all other parties. The court shall, for good cause, allow the attorney for the Commonwealth to file the motion late, grant a continuance of the trial or of any other proceedings, modify scheduling orders, or make other appropriate orders.
In its order denying the Commonwealth's motion, the trial court held that it did not file its motion for an IME within 10 days as required by RCr 8.07(2)(B). The court also held that, although it can allow the motion to be filed late for good cause, no good cause existed because the Commonwealth was first put on notice of Mr. Smith's intent to use expert testimony relating to his mental condition in May 2013. The court acknowledged that "[t]he defense fully complied with its obligations under the rules. The Commonwealth must be held to that same standard."
We do not believe the trial court abused its discretion in this instance. The Commonwealth was put on notice in May, 2013, of the defense's intention to call into question Mr. Smith's mental health. The Commonwealth then had 10 days to request an IME of Mr. Smith; however, it made no motion at that time. Eight months later, the defense filed another motion regarding Mr. Smith's mental condition. While this motion was not specifically made pursuant to RCr 8.07, the effect was the same, putting the Commonwealth on notice that the defense was raising the issue of Mr. Smith's mental condition as it related to punishment. While the Commonwealth did respond to this motion with a request for an IME, it did so after 12 days and not the required 10. The trial court's decision on this issue was fair and reasonable.
The other issue on appeal regards the tire tread evidence. The Commonwealth argues that the expert opinion from the Kentucky State Police should have been allowed into evidence. In the alternative, the Commonwealth argues that it should have been allowed to introduce pictures of the victim's tires and the tire tread plaster casts so the jury could make its own comparison. We disagree and find no abuse of discretion.
First, we must mention that the only order being appealed in regard to the tire tread evidence is the March 20, 2014 order denying the expert evidence from the Kentucky State Police. The February 21, 2014 order prohibiting all tire tread evidence, including pictures of the tires and plaster casts, was not appealed; therefore, we will only examine the Kentucky State Police expert evidence.
The evidence at issue was provided to the court and defense counsel on March 17, 2014. Trial was to begin three days later. Mr. Smith argues that had he been timely informed of the Commonwealth's use of an expert, he could have consulted his own expert. The Commonwealth claims that the defense had already consulted with a tire tread expert when it believed Detective Beymer was going to testify; however, it does not cite to where this allegation is located in the record. We believe that the trial court's ruling that this was a "late filing" is a reasonable conclusion. Mr. Smith would have been prejudiced had this evidence been allowed because he would not have had sufficient time to retain his own expert on the issue.
Based on the foregoing reasons, we affirm the orders of the trial court.
ALL CONCUR. BRIEF FOR APPELLANT: Jack Conway
Attorney General of Kentucky
Lynn Pryor
Special Assistant Attorney General
Frankfort, Kentucky
ORAL ARGUMENT FOR
APPELLANT:
Robert Long
Frankfort, Kentucky
BRIEF AND ORAL ARGUMENT
FOR APPELLEE:
Linda Roberts Horsman
Assistant Public Advocate
Frankfort, Kentucky