# IMPORTANT NOTICE

NOT TO BE PUBLISHED OPINION THIS OPINIONIS DESIGNATED"NOT TOBE PUBLISHED ." PURSUANT TOTHE RULES OF CIVIL PROCEDURE PROMULGATEDBYTHE SUPREME COURT, CR76.28(4)(C), THIS OPINIONIS NOT TOBE PUBLISHEDANDSHALL NOT BE CITEDORUSEDAS BINDINGPRECEDENT INANY OTHER CASE INANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKYAPPELLATE DECISIONS, RENDEREDAFTERJANUARY l, 2003, MAY BE CITED FOR CONSIDERATIONBYTHE COURT IF THERE IS NOPUBLISHED OPINIONTHAT WOULDADEQUATELYADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITEDFORCONSIDERATION BYTHE COURT SHALL BE SET OUT ASAN UNPUBLISHED DECISIONINTHE FILEDDOCUMENTANDA COPY OFTHE ENTIRE DECISIONSHALL BE TENDEREDALONGWITHTHE DOCUMENT TOTHE COURT ANDALL PARTIESTOTHE ACTION

.1 Ky. Const. § 110(2)(b) .



## ,*uyrrmr (~ourf of `pftr

2008-SC-000837-MR 

## abioaao DARIENJ. DALTON

ONAPPEAL FROM

GRAVES CIRCUIT COURT V . HONORABLE TIMOTHYC . STARK, JUDGE NO . 07-CR-00039 COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM

OPINIONOF THE COURT AFFIRMING RENDERED: MAY 20, 2010 NOTTOBE PUBLISHED

Appellant, Darien J. Dalton, appeals as a matter of right' froma judgment of the Graves Circuit Court convicting him of murder and wanton endangerment and sentencing him to a total termof life imprisonment. On appeal, Dalton alleges thefollowing errors: (1) that the trial court erred by excluding evidence relating to the victim's alleged prior commission of a rape; (2) that the trial court erred by failing to give an extreme emotional disturbance instruction; (3) that the trial court erred by permitting the Commonwealth to play a recording of a prior consistent statement by a mentally ill witness; (4) that the trial court erred by admitting the introduction of cell phone records without proper authentication; (5) that the trial courterred by admitting hearsay statements by Dalton's brother; (6) that error

occurred as a result of the Commonwealth's displaying of enlarged autopsy photographs; and (7) that the prosecutor misled thejury in his penalty phase closing arguments by stating that Dalton would definitely be paroled after serving twenty years on a life sentence. Finding no reversible error, we affirm . I . FACTUAL ANDPROCEDURAL BACKGROUND In the light most favorable to theverdict, the facts are as follows. Mary Thomas has two sons, Dalton and his older brother, James Dalton. James was friends with thevictim, Gerald Pitman, and Dalton was acquainted with him . On the eveningof February 16, 2007, four young men invaded Thomas's apartment and held her at gunpoint. Thomas became hysterical and the men threatened to kill her if she did not be quiet. One of the men said "Where's your punk-ass son? I'mgonna kill himtoo." It is unclear what the exact purpose of the home invasion was. After a short while, Thomas managed to back up to the door, and escape fromthe apartment. Shewent to her next door neighbor's apartment and called her sons and the police, who quickly came to the scene. From Thomas's detailed descriptions, police suspected that Pitman was one of the home invaders. Police prepared a photo-lineup and Thomas identified Pitman as one of the men who held a gun on her during the incident. Thomas remained upset as a result of the events, and there was testimony thatDalton was likewise quite upset about the invasion.

The next morning, Dalton andJames conspired to lure Pitman to James's trailer. Several phone calls were made betweenJames and Dalton and James and Pitman. It was eventually arranged that James and his girlfriend, Jessica Hamilton, would pick up Pitman and his girlfriend, Ashley Anglin, and take themto James's trailer. Because James and Pitman were friends, it was not unusual for such an invitation to occur. The plan as told to Pitman was for James and Hamilton to drop off Pitman andAnglin at the trailer, and for Hamilton then to takeJames to work. Hamilton testified that shewas aware that Dalton would be at the trailer when they dropped-off Pitman andAnglin, though she did not know Dalton was going to shoot Pitman. With Hamilton driving, the plan was carried out. James and Hamilton dropped off Pitman andAnglin, and drove away. Pitman andAnglin then walked toward the back door of the trailer. As they approached, Dalton stepped fromaround the corner of the trailer and shot Pitman four times. The shots were fatal . At about the time of the shooting, Tamario Morgan and his uncle arrived at the trailer. Both saw the shooter. Morgan testified that the shooter was wearing a camouflage coat. His uncle testified that the shooter was a young black male of medium build wearingwhat appeared to be a camouflage coat with a black toboggan under the hood.2 As Dalton was making his getaway, an 2 Dalton was 18years old when the offense occurred, and the description given by Morgan and his uncle apparently fits Dalton.acquaintance of Dalton, KendrickJackson, who suffers fromschizophrenia,

saw and recognized him

. Jackson testified that Dalton was wearing a camouflage coat andjeans. Jackson had heard the shots and thought Dalton was running away fromthe shooter. Jackson was certain it was Dalton he saw that day. On February 23, 2007, the Graves County GrandJury indicted Dalton for Pitman's murder, and for first-degree wanton endangerment for shooting a firearmin the direction of AshleyAnglin.3 Following ajury trial, thejury returned a guiltyverdict on both charges. Thejury recommended a life sentence on the murder conviction and a one-year sentence for the wanton endangerment conviction, to be served concurrently. On October 27, 2008, the trial court entered a final judgment consistent with thejury's verdict and sentencing recommendation. This appeal followed. II . EVIDENCE OF THE VICTIM'S PRIORRAPE CHARGE

WAS PROPERLY EXCLUDED It appears uncontested that in October 2002, Pitman was charged with the rape of a younggirl, but was never brought to trial because he was adjudged incompetent to stand trial . Dalton claims to have knownabout these circumstances prior to the home invasion. Prior to trial, the trial court granted

3 For his alleged participation in the shooting, James was likewise indicted for murder. The record reflects that prior to trial in the present case, James entered a guilty plea in his proceeding, though the ultimate outcome is not included in the record.the Commonwealth's motion to exclude the evidence of Pitman's alleged rape

charges and Dalton's knowledge of it frompresentation to thejury. Dalton contends that the trial court erroneously excluded the rape evidence. Dalton argues that the evidence was relevant to his state of mind because it contributed to his suffering fromextreme emotional disturbance, whichwas triggered by Pitman's alleged home invasion of his mother's apartment. He argues that his knowledge of Pitman's alleged prior violent crime and escape from justice led him

to believe that Pitman was "beyond the judgment of the law," which directly related to his extreme emotional disturbance defense. Evidence of Pitman's 2002 alleged rape was, obviously, standing alone, inadmissible as irrelevant. KRE 401 . Dalton does not contend otherwise. As explained below, Dalton was not entitled to an extreme emotional disturbance instruction as a result of the home invasion against his mother, even when combined with his knowledge of Pitman's avoidance of criminal prosecution for the alleged 2002 rape. It follows that the evidence was not admissible in support of Dalton's extreme emotional disturbance defense. In summary, the trial court did not abuse its discretion by excluding evidence relating to the alleged October 2002 rape.

I II . DALTON WAS NOT ENTITLEDTOAN EXTREME EMOTIONAL DISTURBANCE INSTRUCTION Dalton next contends that the trial court erred by failing to give aninstruction on first-degree manslaughter based upon extreme emotional

disturbance.4 Dalton alleges that he was entitled to an EEDinstruction based upon his reaction to Pitman's home invasion against his mother, in combinationwith his knowledge that Pitman allegedly escaped criminal prosecutionfor rape because he was adjudged mentally incompetent to stand trial . In support of his theory that the home invasion was the event triggering his EED, Dalton cites us to thefollowing testimony. Officer Jerry Gore testified that when Dalton arrived at his mother's apartment the night of the home invasion that Dalton "was upset," though as time passed he seemed to calm down "a little bit." Corporal Shannon Smith also testified that Dalton was "mad" and "extremely upset," that evening, though he calmed down before Smith left the scene. Thomas's neighbor Phil Mosley testified that Thomas was "very agitated and distraught" after the invasion and Dalton attempted to console his mother. Dalton also cites us to his mother's testimony that Dalton stayed up all night with her because shewas upset and crying and could not sleep. Thomas also testified that Dalton, too, was crying, andwas assuring her it would be okay and that he "would take care of it". 4 KRS 507.030 provides as follows: "(1) A person is guilty of manslaughter in the first degree when: . . . (b) With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as defined in subsection (1) (a) of KRS 507.020.""In a criminal case, it is the duty of the trial judge to prepare and give

instructions on the whole law of the case, and this rule requires instructions applicable to every state of the case deducible or supported to any extent by the testimony." Taylor v. Commonwealth, 995 S.W .2d 355, 360 (Ky. 1999) . However, the trial court has no duty to instruct on theories of the case that are not supported by the evidence. Payne v. Commonwealth, 656S.W .2d 719, 721 (Ky. 1983) . An instruction on a lesser included offense is required only if, considering the totality of the evidence, thejury might have a reasonable doubt as to the defendant's guilt of the greater offense and, yet, believe beyond a reasonable doubt that he is guilty of the lesser offense. Wombles v . Commonwealth, 831 S.W .2d 172, 175 (Ky. 1992) . In Greene v

. Commonwealth, 197 S.W .3d 76, 81-82 (Ky. 2006) we discussed the parameters of extreme emotional disturbance as follows: Although EEDis essentially a restructuring of the old common law concept of "heat of passion," the evidence needed to prove EED is different. There must be evidence that the defendant suffered "a temporary state of mind so enraged, inflamed, or disturbed as to overcome one's judgment, and to cause one to act uncontrollably from [an] impelling force of the extreme emotional disturbance rather than from evil or malicious purposes." McClellan v . Commonwealth, 715 S.W .2d 464, 468-69 (Ky. 1986) . "[T]he event which triggers the explosion of violence on the part of the criminal defendant must be sudden and uninterrupted. It is not a mental disease or illness . . . . Thus, it is wholly insufficient for the accused defendant to claim the defense of extreme emotional disturbance based on a gradual victimization from his or her environment, unless the additional proof of a triggering event is sufficiently shown." Foster v . Commonwealth, 827 S.W .2d 670, 678 (Ky. 1991) (citations omitted) . And the "extreme emotional disturbance . . . [must have a] reasonable explanation or excuse, the reasonableness of which is to be determined fromtheviewpointof a person in the defendant's situation under the circumstances

as the defendant believed themto be." [Spears v. Commonwealth, 30 S.W .3d 152, 155 (Ky. 2000)] . Thus, in order to receive an EEDmitigating instruction, a defendant must present evidence which establishes adequate provocation, or a triggering event. Benjamin v

. Commonwealth, 266S.W .3d 775, 782 (Ky. 2008) ; see also Fields v . Commonwealth, 44 S.W .3d 355, 359 (Ky

. 2001) . Moreover, the provocation leading to the triggering event must be continuous and uninterrupted - though it need not necessarily be contemporaneous with the triggering event - and the courts should look to whether there was a sufficient "cooling-off period" which rendered the response unreasonable or the provocation inadequate. See Benjamin, 266S.W .3d at 783. An extreme emotional disturbance instruction must be supported by "some definite, non-speculative evidence." Holland v . Commonwealth, 114 S.W .3d 792, 807 (Ky

. 2003) (quoting Hudson v. Commonwealth, 979S.W .2d 106, 109 (Ky

. 1998)) . The trial court's decision not to give ajury instruction is reviewed for abuse of discretion. Williams v . Commonwealth, 178 S.W . 3d 491, 498 (Ky. 2005) . As previously stated, Dalton's claimis that he suffered fromEEDas a result of the home invasion and the contemporaneous terrorizing of his mother, in combinationwith his knowledge that Pitman was previously chargedwith committing a rape and escaped punishment after being adjudged incompetent to stand trial . Acceptingfor discussion purposes that these factors weresufficient to have so enraged, inflamed, or disturbed Dalton so as to overcome

hisjudgment, and to have caused himto act uncontrollably froman impelling force, and thereby meet the threshold prongfor establishing EED, nevertheless, there is insufficient evidence to establish that the force of EEDremained uninterrupted until the shooting some fourteen hours later. The testimony cited by Dalton, while describing himas being upset the night of the, invasion, also describes himas having later calmed down. Moreover, Hamilton testified that Dalton seemed calmand okay when she and James left Thomas's apartment about an hour and a half following their arrival . Dalton himself did not testify, and so there is an absence of evidence concerning his mental state during the hours prior to the murder. Nearly fourteen hours elapsed between the triggering event and the shooting, which constitutes a sufficient "cooling-off period" under the circumstances presented here to render the response unreasonable or the provocation inadequate. Benjamin, 266S.W

.3d at 783. Moreover, the next morning Dalton engaged in somewhat elaborate planning to devise an ambush of Pitman, which is antethetical to the notion that Dalton's mind was so disturbed as to overcome hisjudgment and that he acted uncontrollably. Accordingly, there is insufficient evidence to support Dalton's theory that, if he committed the shooting, he did so under extreme emotional disturbance. For the above reasons, this matter is distinguishable fromour previous cases which hold that even if a defense theory is implausible, an instruction onthe theory must be given. See, e.g., Taylor, 995 S.W .2d at 360

. Although we have cautioned that even implausible defense theories are entitled to instructions if there is an evidentiary basis for them, id., we agree with the trial court that in this case, the evidentiary basis was lacking; and the court did not abuse its discretion in denying an EEDinstruction under the facts of this case. IV. KENDRICKJACKSON'S PRIORCONSISTENT STATEMENTWAS IMPROPERLYADMITTED, BUTTHE ERRORWAS HARMLESS Dalton next contends that the trial court erred by permitting a recorded prior consistent statement made by KendrickJackson on the day of the murder to be played at trial . Dalton alleges that the playing of the statement improperly bolsteredJackson's testimony. We agree, but conclude that the error was harmless. Jackson testified that at the time of the shooting he was walking back to his residence after going to a store to purchase cigarettes for his cousin. Jacksonwas acquainted with Dalton, and during his trial testimony he referred to Dalton as his "friend." As he was walking home fromthe store he saw Dalton run through "the cut of the houses" wearing a camouflagejacket and jeans. Shortly thereafter he came upon the murder scene. Jackson was certain that it was Dalton he saw . Jackson also testified that he had been diagnosed with schizophrenia in 2002 at Western State Hospital, a mental institution, where he was committed for about a week and a half. He was prescribed Zyprexa for his mental illnessand takes the medication daily, although he occasionally forgets to.5

On cross-examination, defense counsel questioned Jackson concerning the consequences of his mental illness and medication. Jackson testified that when he did not take Zyprexa, he did not see things clearly, might get things out of order or forget facts, and that he might experience a flash forward or backward. Jackson testified that when he was evaluated by the Social Security Administration for disability purposes, the evaluation showed that he had trouble remembering and concentrating. He denied, however, that he "imagined stuff." Jackson testified that while, on the day of the shooting, he took Zyprexa, he did so after, rather than before, the shooting. Following cross-examination, the Commonwealth asserted that Dalton had attacked Jackson's credibility, and moved to play a tape-recording of the statement Jackson gave to police on the day of the shooting. The recorded statement was substantially similar toJackson's trial testimony, and was thus a prior consistent statement. Ultimately, the trial court permitted the statement to be played "to show there's been no failure of memory between then and now

." KRE 801(l)(2) provides as follows: (a) Prior statements of witnesses. Astatement is not excluded by the hearsay rule, even though the declarant is available as a witness, if the declarant testifies at the trial or hearing and is examined concerning the statement, with a foundation laid as required by KRE 613, and the statement is: 5Prior toJackson's trial testimony, upon Dalton's motion, a hearingwas held to determine if he was a competent witness. The trial court ruled that Jackson was competent to testify at trial . Dalton does not challenge that holding.(2) Consistent with the declarant's testimony and is offered to

rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive; or "Under this rule and KRE 802 (the rule against hearsay), awitness's outof-court prior consistent statement is not admissible merely to corroborate the witness's in-court testimony." Winstead v. Commonwealth, 283 S.W .3d 678, 688 (Ky. 2009) . Bussey v. Commonwealth, 797 S.W .2d 483 (Ky. 1990) contains similarities to this case concerning the admissibility of a prior consistent statement of a mentally impaired witness, thevictimof the crime. In Bussey, the victimwas severely retarded, but testified at trial concerning the sexual abuse committed by the defendant. During the Commonwealth's case in chief, four police officers were permitted to repeat thevictim's prior consistent statement concerningwhat transpired. The Commonwealth argued that this testimony was properly admitted because thevictim's credibility was attacked during cross-examination. In finding that the admission of the prior consistent statements was reversible error, we stated as follows: According to this theory, anytime the credibility of a witness is attacked, hearsay evidence which tends to corroborate the witness's story becomes admissible. This viewof the lawis much too expansive. The rule which permits rehabilitation of a witness is limited to those circumstances in which the credibility of the witness is attacked on the basis of a prior inconsistent statement, recent fabrication, improper influence, or some circumstance whichimpairs his present ability to recall and narrate the event. Eubank

v. Commonwealth, 210 Ky. 150, 275 S.W . 630 (1925), and Reed v. Commonwealth, Ky., 738S.W .2d 818 (1987) . The Commonwealth's reliance on Lowery v. Commonwealth, Ky., 566S.W .2d 750 (1978), is misplaced. In that case, the witness was impeached by evidence that he had been drinking alcohol shortly before his testimony. In viewof this circumstance, the court permitted rehabilitation of the witness by proof that he had earlier told a story consistent with his testimony at trial . The prior consistent statement was permitted because it disclosed that the story was the same as before the "onset of the malady." Nothing contained in the facts presented here permits such a result. There was no contention of recent fabrication nor was there any evidence that the victim's mental condition had become diminished in the period between the occurrence of the crime and trial . He was cross-examined on the basis of the improbability of his story, his understanding of the difference between truth and falsity, and cross-examination generally was directed' toward persuading the jury that it should not believe the victim's testimony. Merely challenging the truthfulness of a witness's testimony does not open the door to a parade of witnesses who repeat the witness's story as told to them . The lawof Kentucky is well stated in Eubank v . Commonwealth, supra, as follows: "As a general rule, a witness cannot be corroborated by proof that on previous occasions he has made the same statements as those made in his testimony. Where, however, a witness has been assailed on the ground that his story is a recent fabrication, or that he has some motive for testifying falsely, proof that he gave a similar account of the matter when the motive did not exist, before the effect of such an account could be foreseen, or when the motive or interest would have induced a different statement, is admissible." Id. at 275 S.W . 633. This case well illustrates the reason for the foregoing rule. The only witnesses to the occurrence of this crime were appellant and the Bussey brothers. To arrive at a conviction, it was necessary for thejury to believe the victim and disbelieve appellant. As such, the jury was required to determine the credibility of all fact witnesses. This process was flawed when four lawenforcementwitnesses were permitted to bolster the victim's testimony by

repeating what he had told them . Accordingly, we must reverse the conviction. Id. at 484-485. While trial counsel's cross-examination ofJackson did seek to highlight Jackson's mental shortcomings and suggest that because of his deficiencies he may have been mistaken in his observations of events, the casting of doubt on the reliability of an adverse eyewitness's observations is, generally, standard practice in cross-examination. However, as indicted by Bussey, there is no general exception to the rule against the admissibility of a prior consistent statement, in the case of a mentally impaired witness, "to show there's been no failure of memory between then and now ." As demonstrated by Bussey, mental impairment alone does not permit the use of a prior consistent statement to reinforce the in-court testimony of a mentally deficient witness. Trial counsel's cross-examination ofJackson did not suggest a recent fabrication or improper influence or motive. Nor did it suggest some circumstance which impaired his present ability to recall and narrate the event, thus this case is unlike Lowery, 566 S.W .2d 750, where the witness was drinking alcohol shortly before his testimony. To the contrary, the goal of the cross-examination was to suggest that Jackson's mental illness interfered with his perception of the event he claims to have seen. Accordingly, we find no basis for avoidance of the general rule against the admission of a prior consistent statement.However, unlike in Bussey, where the error was reversible, in this case

we do not believe reversal is warranted. RCr 9.24 requires us to disregard an error if it is harmless. Anon-constitutional evidentiary error maybe deemed harmless if the reviewing court can saywith fair assurance that thejudgment was not substantially swayed by the error. Kotteakos v. United States, 328 U .S. 750 (1946) ; Winstead, 283 S.W .3d at 688-89. The inquiry is not simply "whether there was enough [evidence] to support the result, apart fromthe phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand." Kotteakos, 328 U.S. at 765; Winstead, 283 S.W .3d 688-89. Even without the bolstering, Jackson's testimonywas compelling evidence by an impartial witness placing Dalton as fleeing fromthe crime scene immediately following the shooting. Further, James's girlfriend, Hamilton, testified that she knew Dalton was to be at the trailer, which placed him at the scene of the ambush. Moreover, Dalton had a motive for the killing, the terrorizing of his mother by Pitman, and there appears to be no viable alternative perpetrator. As such, we are persuaded that the error did not have a substantial influence on the verdict andwas, accordingly, harmless.

V . THE CELL PHONE RECORDSWERE NOT PROPERLY AUTHENTICATED, BUTTHE ERRORWAS HARMLESS Next, Dalton contends that the trial court erred by admitting the cellular telephone records of Gerald Pitman, Mary Thomas, and Jessica Hamilton. Healleges that the records were not properly authenticated.

Asignificant aspect of the Commonwealth's case against Dalton was evidence that there were several phone calls made the morning of the shooting betweenJames and Dalton andJames and Pitman. This evidence was presented both throughJames's girlfriend, Jessica Hamilton, and the cellular telephone records subpoenaed fromCingular Wireless. The inference to be drawn is that Dalton andJames were coordinating to lure Pitman to the trailer for the ambush. Therewas testimony that Dalton was using the cell phone of his mother, Mary Thomas, and that James was using Hamilton's cell phone. Thecell phone records for Pitman, Thomas, and Hamilton were obtained fromCingular Wireless by subpoena, andwere introduced through the testimony of Detective Bryan Morrison. "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." KRE 901 (a) . For purposes of authentication, the condition of fact which must be fulfilled by every offer of real proof is whether the evidence is what its proponent claims. Johnson v. Commonwealth, 134 S.W .3d 563, 566 (Ky. 2004) . Part of the identification of evidence is a demonstration of its integrity - that it is in fact what its proponent claims it to be. Rogers v . Commonwealth, 992 S.W .2d 183, 187 (Ky. 1999) . The Commonwealth introduced the telephone billing records for the truth

16of the matter contained therein; and, thus, the records must clear the hurdle

for the admission of hearsay evidence. KRE 803(6) addresses the admissibility of business records under the hearsay rules. The rule states, as relevant here, as follows: The following are not excluded by the hearsay rules, even though the declarant is available as a witness: (6) Records of regularly conducted activity. A . . . record, or data compilation, in any form, of acts, events, [or] conditions, . . . made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the, testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness . . . . Similarly, Professor Robert G . Lawson discusses the issue as follows: Business records are writings. Writings must be authenticated, i .e., accompanied by preliminary evidence sufficient to support a finding that they are what their proponents claim . This preliminary proof is commonly referred to as `foundation.' KRE 803(6) requires `testimony of the custodian or other qualified witness' concerning the prerequisites for admitting business records . . . . [I]t is `essential' testimony without which business records `must be excluded.' It is also well-settled that the foundation witness need not be the custodian of the records nor the person who made them . Anyone who can testify frompersonal knowledge about the circumstances surrounding the making and keeping of the records can qualify as a foundation witness. As stated by one authority, `in the end the requirement may be satisfied by the testimony of anyone who is familiar with the manner in which the record was prepared, and even if he did not himself either prepare the record or even observe its preparation.'Robert G . Lawson, The Kentucky Evidence Law Handbook § 8.65 (3d ed. 1993) . Here, the Commonwealth did not introduce the records through the testimony of a custodian of Cingular's call records, nor was Detective Morrison an "other qualified witness." Detective Morrison had no personal knowledge of how Cingular established or maintained records of its customers' calls, or any other competent knowledge whichwould allowhim to attest to theverity of the telephone records. Nor did he have knowledge of specific calls or the length thereof, and nor were the self-authentication provisions of KRE 902(11) 6 followed by certification of the custodian. Because the records were not properly authenticated, their introduction into evidence was error. Nevertheless, upon consideration of the case as a whole, we believe the error was harmless. Even without the records, Hamilton otherwise testified concerning the telephone calls James made and received that morning. Albeit in less detail, this established the same point made by the records. The exact times and lengths of the calls were not as important as the fact that the calls were being made and received. Thus, the cellular telephone records were cumulative to Hamilton's testimony. 6 KRE 902(l 1) provides as follows: "Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following: (11) Business records. (A) Unless the sources of information or other circumstances indicate lack oftrustworthiness, the original or a duplicate of a record of regularly conducted activity within the scope of KRE 803(6) or KRE 803(7), which the custodian thereof certifies: (i) Was made, at or near the time of the occurrence ofthe matters set forth, by (or frominformation transmitted by) a person with knowledge of those matters; (ii) Is kept in the course of the regularly conducted activity; and (iii) Was made by the regularly conducted activity as a regular practice." 1 8Jackson's testimony placed Dalton as fleeing fromthe crime scene.

Hamilton testified that she knewDalton was to be at the trailer where the shooting occurred. In addition, Dalton had a motive for the killing, and there appears to be no viable alternative perpetrator. As such, we are persuaded that the error did not have a substantial influence on the verdict, andwas, accordingly, harmless. 

### Winstead, 283 S.W .3d at 688-89. VI . THE HEARSAY STATEMENTS OF JAMES DALTONWERE PROPERLY ADMITTED Next, Dalton contends that the trial court erred by permitting the introduction of hearsay statements (both direct and implied) made by James Dalton to his girlfriend, Jessica Hamilton. The trial court ruled that the statements were admissible under the hearsay exception for statements made in furtherance of a conspiracy. During Hamilton's testimony the Commonwealth questioned her about the events of the morningof February 17, 2007, includingJames's phone conversations with Dalton and Pitman. The hearsay statements we are referred to (some implied) are (1) most importantly, that Hamilton knew that Dalton would be at the trailer (she could only have learned this throughJames' out of court statements) ; (2) that James directed her to drive to the trailer once they had picked up Pitman and his girlfriend; and (3) that James told her where to stop upon arrival at the trailer. "A statement is not excluded by the hearsay rule, even though thedeclarant is available as a witness, if the statement is offered against a party

and is . . . [a] statement by a coconspirator of a party during the course and in furtherance of the conspiracy." KRE 801A(b)(5) . In order to fall within this exception, however, the proponent of the statement must show (1) a conspiracy existed, (2) the conspiracy involved the defendant, and (3) the statement was made in furtherance of the conspiracy. Gerlaugh v . Commonwealth, 156 S.W .3d 747, 752 (Ky. 2005) ; Marshall v. Commonwealth, 60 S.W .3d 513, 520 (Ky. 2001) . The prosecution must establish these three prongs by a preponderance of the evidence. Bourjaily v. United States, 483 U .S. 171, 175, (1987) . The trial judge must make thefindings of fact necessary to determine whether these statements may be admitted. KRE 104(a) ; Monroe v . Commonwealth, 244 S.W .3d 69, 76 (Ky. 2008) . Aconspiracy in this context is an agreement between twoor more individuals to commit a crime. Lawson, Kentucky Evidence § 8.30[3] . For the coconspirator exception to apply there need not be a formal charge of conspiracy against either the party or the declarant. Id.; see also United States v . Smith, 596 F.2d 319 (8th Cir. 1979) . Alongwith the requirement of an actual conspiracy, the statement offered must be "during the course and in furtherance of such conspiracy. Lawson, supra . Aconspiracy has commenced as soon as an agreement to commit a crime is reached, and is terminated when either there is an accomplishment of the objective or an unqualified and permanent abandonment of the objective. Id. As ProfessorLawson has noted, statements designed to advance the objectives of a

conspiracy satisfy the "in furtherance" language of the statute. Id. In connection with his ruling that the statements were admissible as statements made by a coconspirator, the trial court stated that "if nothingelse" he could takejudicial notice ofJames Dalton's guilty plea to the charge of complicity to murder Gerald Pitman. The record discloses that prior to the trial in the present case, James entered a guilty plea to complicity to the murder of Pitman. Whether that guilty plea precludedJames fromasserting his Fifth Amendment right not to testify in Dalton's trial was litigated in pretrial proceedings. JudgeTimothy C . Stark presided as trial judge in both proceedings andwould therefore havejudicial knowledge ofJames's plea. In light of the testimony that James helped to transport Pitman to the site of the ambush, as well as the GrandJury's indictment ofJames for Pitman's murder under the probable cause standard and his subsequent entry of a guilty plea to complicity to the murder, whichwas in effect at the time of the trial, we conclude that a conspiracy was established by a preponderance of the evidence, and, accordingly, the hearsay statements were properly admitted as a statement by a coconspirator under KRE 801A(b) (5) . VII . THEAUTOPSY PHOTOS WERE PROPERLY DISPLAYEDTOTHEJURY Next, Dalton contends that twoenlarged (describes themas "poster-size") autopsy photographs of Pitman were improperly displayed to thejury. At trial, Dalton objected to the photographs because of their size. He also alleges thatthe photographs were displayed for thejury for an excessive length of time.

The photographs were introduced through the testimony of Officer Don Wortham

. Wortham

accompanied Pitman's body to Louisville for the autopsy, and collected evidence at the autopsy. The trial court admitted the two enlarged photographs over Dalton's objection, and the prosecutor placed them one at a time on an easel positioned in front of thejury. Officer Worthamleft the stand, approached the easel, and testified that the pictures were a "true and accurate" depiction of what he observed at the autopsy. After Officer Worthamreturned to thestand, the photograph remained visible for a period of time. The photographs were again displayed during the testimony of Donna Stewart, the medical examiner. The Commonwealth is not permitted to introduce evidence which serves little or no legitimate evidentiary purpose other than to engender sympathy for the victimand his or her family. See, e.g., Icev. Commonwealth, 667 S.W .2d 671, 676 (Ky. 1984). We first note that the autopsy photographs of Pitman's fatal injuries were relevant to demonstrate that Pitman was, indeed, killed by gunshot wounds as stated in the indictment. KRE 401 . Generally, such photographs are not excluded under KRE 403 as unduly prejudicial . As a general rule, photographs do not become inadmissible simply because they are gruesome. Foley v. Commonwealth, 953 S.W .2d 924, 936 (Ky. 1997) . For example, a photograph of a young child victim, where his scalp was pulled back to show there was anintent to kill, was not gruesome enough to preclude the photo evidence from

thejury. 

### Quarels v. Commonwealth, 142 S.W .3d 73 (Ky. 

### 2004) . The photographs in question are not included in the record, sowe are unable to evaluate their potential for prejudice. Nor arewe prepared, as suggested by Dalton, to hold that prosecutors may not display enlarged autopsy photographs. Enlarged photographs facilitate medical experts in explaining injuries tojuries as a group, and the practice has a legitimate evidentiary purpose. However, of course, gratuitous displays of gruesome photographs are to be avoided. Further, Dalton's claims of prejudice relating to the enlargement of the photographs are speculative. displayed is unpreserved. The pictures were displayed for about five minutes during Officer Wortham's testimony, andfor about three minutes during Dr. Stewart's testimony. We cannot say that this amount of time was unreasonable, and Dalton presents no evidence to the contrary. There is no error here. Dalton's claimregarding the length of time that the photographs were

V III. THE PROSECUTOR'S COMMENT ONPAROLE ELIGIBILITY DURING PENALTY PHASE CLOSINGARGUMENTS WAS PROPER Dalton's final argument is that the prosecutor misstated the lawin his closing statement during the penalty phase when he stated "that appellant would definitely be paroled after serving 

### 20years on a life sentence." Daltonconcedes that issue is not preserved but requests palpable error review

pursuant to RCr 10.26 . The statements Dalton alleges as error were as follows: With that life penalty, 20years is gonna come up here, and you can't keep him

injail any longer than that. That's when he's gonna be eligible for parole . . . and he'll still be ayoung man maybe with a college degree when he gets out and Gerald Pitman's life is ended. An examination of the prosecutor's statement discloses that he did not, as argued by Dalton, state "that appellant would definitely be paroled after serving 20years on a life sentence." "Eligible for parole" does not equate to "will definitely be paroled." Prior to the statement cited, the prosecutor discussed that a prisoner serving a life sentence became eligible for parole after twentyyears and that the parole board would then have the decision on whether to release him, the point being that thejury could not impose a sentence whichwould assure that Dalton would remain in prison any longer than that.? In this context the prosecutor's statement was an accurate statement of the law . That is "you" - meaning thejury - "can't keep himinjail any longer than that" - meaning that they could not impose a sentence whichwould assure that Dalton would remain imprisoned for longer than twenty years. While the statement was perhaps ambiguous, there was no error. IX. CONCLUSION 7 The case was not tried as a capital case, and thus life without parole for twenty-five years and lifewithout parole were not options. 24For the foregoing reasons thejudgment and sentence of the Graves

Circuit Court is affirmed. All sitting. All concur. COUNSEL FORAPPELLANT: Shelly R . Fears Assistant Public Advocate Department of Public Advocacy 100Fair Oaks Lane, Suite 302 Frankfort, Kentucky 40601-1133 COUNSEL FORAPPELLEE: Jack Conway Attorney General Susan Roncarti Lenz Assistant Attorney General Office of Attorney General Criminal Appellate Division 1024 Capital Center Drive Frankfort, Kentucky 40601-8204