Wells v. Commonwealth , 2006 Ky. LEXIS 302 ( 2006 )

MINTON, Justice,

concurring.

I agree with the majority’s conclusion that the introduction of the DNA test results, although surely error, was a harmless error. But I write separately because I believe that the error was harmless for a different reason: the contents of the DNA test results were merely cumulative evidence in light of Wells’s incriminating letters.

As noted by the majority, the Confrontation Clause of the Sixth Amendment to the United States Constitution and Section Eleven of the Kentucky Constitution each guarantees a criminal defendant the right to confront his accusers. A Confrontation Clause violation may, in some instances, be deemed a harmless error if the error is shown to be harmless beyond a reasonable doubt. Coy v. Iowa, 487 U.S. 1012, 1019-1022, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988).

According to the United States Supreme Court, “[a]n assessment of harmlessness cannot include consideration of whether the witness’s testimony would have been unchanged, or the jury’s assessment unaltered, had there been confrontation; such an inquiry would obviously involve pure speculation, and harmlessness must therefore be determined on the basis of the remaining evidence.” Id. at 1021-1022, 108 S.Ct. 2798. So our focus must be on whether the other evidence admitted against Wells was sufficient to support his convictions.

While in jail and awaiting trial, Wells wrote at least one letter to D.M. and one letter to D.M.’s infant daughter; and those letters were introduced at trial. The letter to D.M. refers to “our baby” and contains the following pertinent passage: “But we made love, have a beautiful daughter, planned to marry, loved each other, everything was consenual [sic] but [I’m] arrested[.]” Later in the letter, Wells asks D.M. to “take care of our Baby” and expresses his “unconditional love for you [and] our Baby.” In a similar vein, Wells wrote a letter to D.M.’s infant, stating that he “always thought that the love me and your mom have would only be strengthened by the bond you brought into our relationship[.][W]hat could be more precious than a beautiful little girl that God brought [in to] our lives[?]” Wells’s letters contain unmistakable admissions that he had engaged in sexual intercourse with D.M.

At its core, all the DNA test results showed was that Wells was the father of D.M.’s child, which leads to a logical inference that Wells had sexual intercourse with D.M. Since Wells’s letters also are an admission that he had sexual intercourse with D.M., the introduction of the DNA report, though improper, was a harmless error. The DNA report was merely cumulative of other evidence. See, e.g., Combs v. Commonwealth, 965 S.W.2d 161, 165 (Ky.1998) (holding that improperly admitted blood alcohol test evidence in DUI case was harmless error because it was cumulative of other evidence); Meadows v. Commonwealth, 178 S.W.3d 527, 538 (Ky.App.2005) (“the admission of inadmissible hearsay testimony that is cumulative is harmless error.”). So I concur with the majority’s ultimate conclusion that Appellant’s convictions must be affirmed.

LAMBERT, C.J.; and McANULTY and ROACH, JJ., join.