IMPORTANT NOTICE

NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."

PURSUANT TO THE RULES OF CIVIL PROCEDURE

PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),

THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE

CITED OR USED AS BINDING PRECEDENT IN ANY OTHER

CASE IN ANY COURT OF THIS STATE; HOWEVER,

UNPUBLISHED KENTUCKY APPELLATE DECISIONS,

RENDERED AFTER JANUARY l, 2003, MAY BE CITED FOR

CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED

OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE

BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION

BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED

DECISION IN THE FILED DOCUMENT AND A COPY OF THE

ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE

DOCUMENT TO THE COURT AND ALL PARTIES TO THE

ACTION.
1 Ky. Const. § 110(2)(b) .

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2008-SC-000837-MR

abioaao

DARIEN J. DALTON

ON APPEAL FROM GRAVES CIRCUIT COURT

V. HONORABLE TIMOTHY C. STARK, JUDGE

NO. 07-CR-00039

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

RENDERED : MAY 20, 2010

NOT TO BE PUBLISHED

Appellant, Darien J. Dalton, appeals as a matter of right' from a

judgment of the Graves Circuit Court convicting him of murder and wanton

endangerment and sentencing him to a total term of life imprisonment.

On appeal, Dalton alleges the following 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 court
erred 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 the jury 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 AND PROCEDURAL BACKGROUND

In the light most favorable to the verdict, the facts are as follows . Mary

Thomas has two sons, Dalton and his older brother, James Dalton . James was

friends with the victim, Gerald Pitman, and Dalton was acquainted with him.

On the evening of 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'm gonna kill him too ." 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 from the apartment. She went 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 that
Dalton was likewise quite upset about the invasion.

The next morning, Dalton and James conspired to lure Pitman to

James's trailer. Several phone calls were made between James 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 them to 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 and Anglin at the trailer, and for

Hamilton then to take James to work . Hamilton testified that she was aware

that Dalton would be at the trailer when they dropped-off Pitman and Anglin,

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 and Anglin, and drove away. Pitman and Anglin then

walked toward the back door of the trailer. As they approached, Dalton

stepped from around 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 wearing what appeared to be a camouflage coat

with a black toboggan under the hood. 2 As Dalton was making his getaway, an

2 Dalton was 18 years old when the offense occurred, and the description given by

Morgan and his uncle apparently fits Dalton .
acquaintance of Dalton, Kendrick Jackson, who suffers from schizophrenia,

saw and recognized him. Jackson testified that Dalton was wearing a

camouflage coat and jeans. Jackson had heard the shots and thought Dalton

was running away from the shooter. Jackson was certain it was Dalton he saw

that day.

On February 23, 2007, the Graves County Grand Jury indicted Dalton

for Pitman's murder, and for first-degree wanton endangerment for shooting a

firearm in the direction of Ashley Anglin . 3 Following ajury trial, the jury

returned a guilty verdict on both charges. The jury 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 the jury's verdict and

sentencing recommendation .

This appeal followed .

II . EVIDENCE OF THE VICTIM'S PRIOR RAPE CHARGE

WAS PROPERLY EXCLUDED

It appears uncontested that in October 2002, Pitman was charged with

the rape of a young girl, but was never brought to trial because he was

adjudged incompetent to stand trial. Dalton claims to have known about 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 from presentation to the jury.

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 from extreme emotional disturbance,

which was 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.

III . DALTON WAS NOT ENTITLED TO AN EXTREME

EMOTIONAL DISTURBANCE INSTRUCTION

Dalton next contends that the trial court erred by failing to give an
instruction on first-degree manslaughter based upon extreme emotional

disturbance . 4 Dalton alleges that he was entitled to an EED instruction based

upon his reaction to Pitman's home invasion against his mother, in

combination with his knowledge that Pitman allegedly escaped criminal

prosecution for 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 the following 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 she was upset and crying and could not sleep . Thomas

also testified that Dalton, too, was crying, and was 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, 656 S.W.2d 719, 721

(Ky. 1983) . An instruction on a lesser included offense is required only if,

considering the totality of the evidence, the jury 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 EED is 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 from the viewpoint
of a person in the defendant's situation under the circumstances

as the defendant believed them to be." [Spears v. Commonwealth,

30 S.W .3d 152, 155 (Ky. 2000)] .

Thus, in order to receive an EED mitigating instruction, a defendant

must present evidence which establishes adequate provocation, or a triggering

event. Benjamin v. Commonwealth, 266 S.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, 266 S.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, 979 S.W.2d

106, 109 (Ky. 1998)) . The trial court's decision not to give a jury instruction is

reviewed for abuse of discretion . Williams v. Commonwealth, 178 S.W. 3d 491,

498 (Ky. 2005).

As previously stated, Dalton's claim is that he suffered from EED as a

result of the home invasion and the contemporaneous terrorizing of his mother,

in combination with his knowledge that Pitman was previously charged with

committing a rape and escaped punishment after being adjudged incompetent

to stand trial. Accepting for discussion purposes that these factors were
sufficient to have so enraged, inflamed, or disturbed Dalton so as to overcome

his judgment, and to have caused him to act uncontrollably from an impelling

force, and thereby meet the threshold prong for establishing EED, nevertheless,

there is insufficient evidence to establish that the force of EED remained

uninterrupted until the shooting some fourteen hours later .

The testimony cited by Dalton, while describing him as being upset the

night of the, invasion, also describes him as having later calmed down .

Moreover, Hamilton testified that Dalton seemed calm and 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, 266 S.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

his judgment 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 from our previous

cases which hold that even if a defense theory is implausible, an instruction on
the 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 EED instruction under the facts of this case.

IV. KENDRICK JACKSON'S PRIOR CONSISTENT STATEMENT WAS

IMPROPERLY ADMITTED, BUT THE ERROR WAS HARMLESS

Dalton next contends that the trial court erred by permitting a recorded

prior consistent statement made by Kendrick Jackson on the day of the murder

to be played at trial . Dalton alleges that the playing of the statement

improperly bolstered Jackson'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.

Jackson was acquainted with Dalton, and during his trial testimony he referred

to Dalton as his "friend ." As he was walking home from the store he saw

Dalton run through "the cut of the houses" wearing a camouflage jacket 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 illness
and 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 to Jackson'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. A statement 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:

5 Prior to Jackson's trial testimony, upon Dalton's motion, a hearing was 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), a witness'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, the victim of the crime. In Bussey,

the victim was 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 the victim's prior consistent

statement concerning what transpired . The Commonwealth argued that this

testimony was properly admitted because the victim'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 view of the law is 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 which
impairs 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., 738 S.W .2d 818 (1987) . The Commonwealth's

reliance on Lowery v. Commonwealth, Ky., 566 S.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

view of 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 law of 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

the jury 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 law enforcement
witnesses 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 of Jackson 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 of Jackson 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 . A non-constitutional evidentiary error may be deemed

harmless if the reviewing court can say with fair assurance that the judgment

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 from the

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 testimony was compelling

evidence by an impartial witness placing Dalton as fleeing from the 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 and was, accordingly, harmless.

V. THE CELL PHONE RECORDS WERE NOT PROPERLY

AUTHENTICATED, BUT THE ERROR WAS HARMLESS

Next, Dalton contends that the trial court erred by admitting the cellular

telephone records of Gerald Pitman, Mary Thomas, and Jessica Hamilton. He
alleges that the records were not properly authenticated.

A significant aspect of the Commonwealth's case against Dalton was

evidence that there were several phone calls made the morning of the shooting

between James and Dalton and James and Pitman. This evidence was

presented both through James's girlfriend, Jessica Hamilton, and the cellular

telephone records subpoenaed from Cingular Wireless . The inference to be

drawn is that Dalton and James were coordinating to lure Pitman to the trailer

for the ambush. There was testimony that Dalton was using the cell phone of

his mother, Mary Thomas, and that James was using Hamilton's cell phone.

The cell phone records for Pitman, Thomas, and Hamilton were obtained

from Cingular Wireless by subpoena, and were 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

16
of 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 from personal 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 which would allow him to attest to the verity 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 of trustworthiness, 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 of the

matters set forth, by (or from information 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 8
Jackson's testimony placed Dalton as fleeing from the crime scene .

Hamilton testified that she knew Dalton 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, and was,

accordingly, harmless. Winstead, 283 S.W.3d at 688-89 .

VI . THE HEARSAY STATEMENTS OF JAMES

DALTON WERE 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 morning of February 17, 2007, including James'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 through James'

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 the
declarant 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 the findings 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).

A conspiracy in this context is an agreement between two or 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). Along with the requirement of an

actual conspiracy, the statement offered must be "during the course and in

furtherance of such conspiracy . Lawson, supra. A conspiracy 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 Professor
Lawson 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 nothing else"

he could take judicial notice of James 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 precluded James from asserting his Fifth

Amendment right not to testify in Dalton's trial was litigated in pretrial

proceedings. Judge Timothy C. Stark presided as trial judge in both

proceedings and would therefore have judicial knowledge of James's plea.

In light of the testimony that James helped to transport Pitman to the

site of the ambush, as well as the Grand Jury's indictment of James for

Pitman's murder under the probable cause standard and his subsequent entry

of a guilty plea to complicity to the murder, which was 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 . THE AUTOPSY PHOTOS WERE PROPERLY DISPLAYED TO THE JURY

Next, Dalton contends that two enlarged (describes them as "poster-size")

autopsy photographs of Pitman were improperly displayed to the jury . At trial,

Dalton objected to the photographs because of their size . He also alleges that
the photographs were displayed for the jury 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 the jury. Officer Wortham left

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

Wortham returned to the stand, 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 victim and his or her family. See, e.g., Ice v. 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 an
intent to kill, was not gruesome enough to preclude the photo evidence from

the jury. Quarels v. Commonwealth, 142 S.W .3d 73 (Ky. 2004) .

The photographs in question are not included in the record, so we are

unable to evaluate their potential for prejudice . Nor are we prepared, as

suggested by Dalton, to hold that prosecutors may not display enlarged

autopsy photographs . Enlarged photographs facilitate medical experts in

explaining injuries to juries 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, and for 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 claim regarding the length of time that the photographs were

VIII. THE PROSECUTOR'S COMMENT ON PAROLE ELIGIBILITY

DURING PENALTY PHASE CLOSING ARGUMENTS WAS PROPER

Dalton's final argument is that the prosecutor misstated the law in his

closing statement during the penalty phase when he stated "that appellant

would definitely be paroled after serving 20 years on a life sentence." Dalton
concedes 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, 20 years is gonna come up here, and you

can't keep him in jail any longer than that. That's when he's

gonna be eligible for parole . . . and he'll still be a young 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 20 years 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 twenty years and that the

parole board would then have the decision on whether to release him, the point

being that the jury could not impose a sentence which would 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 the jury - "can't keep him in jail any longer than that" - meaning that

they could not impose a sentence which would 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 life without parole were not options .

24
For the foregoing reasons the judgment and sentence of the Graves

Circuit Court is affirmed.

All sitting. All concur.

COUNSEL FOR APPELLANT:

Shelly R. Fears

Assistant Public Advocate

Department of Public Advocacy

100 Fair Oaks Lane, Suite 302

Frankfort, Kentucky 40601-1133

COUNSEL FOR APPELLEE:

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