Ballard v. Commonwealth ( 1988 )

WINTERSHEIMER, Justice,

dissenting.

I respectfully dissent from the majority decision because I believe the trial judge did not abuse his discretion when he excluded a witness pursuant to RCr 9.48 and he did not abuse his discretion by denying a motion for a new trial.

The trial judge clearly considered the matter and determined that O.W. Ballard’s viewing of a significant portion of the child’s video-taped testimony violated RCr 9.48 and resulted in prejudice under the facts and circumstances of the case. This was a proper exercise of discretion by the trial judge and was not an automatic exclusion of a witness.

The trial judge did not abuse his discretion by denying the motion for a new trial. The physical examination of the complaining witness was apparently conducted approximately fifteen months after the incident. The examination neither confirmed nor excluded sexual abuse. The report of the examination was delivered to the Department of Human Resources on the day of trial and the report was conveyed to the investigating officer on the same day. The granting of a new trial has always been a matter of judicial discretion and unless there has been an abuse of such discretion, this Court should not reverse. Carwile v. Commonwealth, Ky.App., 694 S.W.2d 469 (1985); Jillson v. Commonwealth, Ky., 461 S.W.2d 542 (1971). In order for newly discovered evidence to support a motion for new trial in a criminal case, it must, with reasonable certainty, have changed the result of the trial. The newly discovered medical examination does not rise to this level.

I would affirm the conviction in all respects.