Funk v. Commonwealth ( 1992 )

SPAIN, Justice,

dissenting.

Respectfully, I dissent from that portion of the majority opinion which reverses the judgment of conviction entered by the Kenton Circuit Court against Michael L. Funk. Funk received a fundamentally fair trial, and reversal on the basis of the claimed errors serves no useful purpose.

The photographs admitted by the trial court were relevant to the testimony of Dr. David Wolfe to help show that buttons had been torn loose from the child’s blouse, which was suggestive of a possible sexual assault. From the photographs, one could see trails or pools of body fluids indicating that the cadaver had been moved, which was consistent with the Commonwealth’s theory that the child had been killed in the building and her body left there. Utilizing the photographs, Dr. L.C. McCloud testified about the scratches on the victim’s chest and abdomen; the location of the body and the disarray of the victim’s clothes; the condition of the clothes, which was indicative of a sexual assault; and the position of a necklace around the victim’s neck, which connected Funk. This testimony was further consistent with Funk’s admissions to the Ohio inmates that he had digitally penetrated the child’s vagina. Under all these circumstances, no abuse of discretion occurred in the admission of the photographs. Gall v. Commonwealth, Ky., 607 S.W.2d 97 (1980). The majority should be reminded that Funk was only found guilty of second-degree manslaughter rather than the charge of intentional murder, which clearly indicates that these photographs were not “devastatingly prejudicial,” as each of Funk’s appellate counsel has argued.

The prior guilty plea conviction of Funk in Ohio for “gross sexual imposition,” also involving digital penetration of a little girl, was properly admitted by the trial court for the purpose of identity. KRE 404(b); Drumm v. Commonwealth, Ky., 783 S.W.2d 380, 381 (1990). It is not difficult to conclude that the prior offense, which occurred on the day before Jennifer lies disappeared, was so “inextricably intertwined” with the other evidence that it would have been virtually impossible, without distorting the truth, to separate the two. See Ware v. Commonwealth, Ky., 537 S.W.2d 174 (1976). The trial judge appropriately admonished the jury that the testimony about the events of April 20, 1989, in Ohio was to be considered by them only as it went to demonstrate common scheme, identity, motive, or intent, and that this evidence was not to be used as direct evidence of the charge for which Funk was on trial in Kentucky. Jones v. Commonwealth, Ky., 554 S.W.2d 363, 367 (1977); See Hardy v. Commonwealth, Ky., 719 S.W.2d 727 (1986).

Concerning the alleged withholding by the Commonwealth of exculpatory evidence, I would decline to review the issue since Funk’s three trial attorneys failed to move for a mistrial or a continuance when the evidence was admitted. The claimed exculpatory value, if any, of these two police reports to Funk is rather questionable since no mistrial motion resulted from their admission. Cf. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Carter v. Commonwealth, Ky., 782 S.W.2d 597 (1990). We should not require a trial court to act sua sponte to grant mistrials where defense counsel has failed to act.

Funk has also not proven that the Commonwealth withheld the two police reports in question. The trial court properly ordered the disclosure of the reports after making a finding that “[a]ll exculpatory and other discoverable evidence had been provided to the Defendant with the exception of two (2) Covington Police Reports authored by Sgt. Radenheimer and dated May 10, 1989 and May 18, 1989.” The record reveals quite clearly that Funk had knowledge of the reports since his trial counsel cross-examined a police officer concerning the foreign hair found on the victim’s body prior to the Commonwealth’s seeking its admission at trial. Defense counsel ably questioned the detective concerning the report and any inconsistencies.

A third reason for passing review of this issue is because Funk has failed to make these disputed reports a part of the record on appeal, which makes their claimed value to Funk rather dubious.

Finally, the cumulative error argument must fail. Funk’s jury conviction, and the penalty imposed by the trial court on him, are appropriate to his criminal acts for which he received a fair trial.

REYNOLDS and WINTERSHEIMER, JJ., join in this dissent.