Thomas v. Commonwealth

Dissenting Opinion by

Justice JOHNSTONE.

I respectfully dissent.

It is not an overstatement to say that the Mountain Dew bottle was critical to the Commonwealth’s case against Appellant. And, as the majority opinion acknowledges, the Mountain Dew bottle in this case presented a novel issue concerning foundational requirements. However, I do not agree with the majority’s conclusion that a sufficient foundation was established for introduction of the bottle. The circumstances surrounding the Mountain Dew bottle, coupled with its intensely damaging effect on Appellant’s defense, warranted a stronger foundation for admission. The foundation that was established was incomplete, and relied in part on inadmissible testimony.

The most obvious problem in the foundation is that it failed to link the bottle to the Appellant. While the chain of custody satisfactorily established that the bottle taken from the Thomases’ home was in essentially the same condition as the day Jeannie Herndon pulled it out of her attic, no satisfactory foundation was laid linking the bottle to the Appellant. “The Commonwealth bears the burden of identifying and tracing the chain of custody from the defendant to its final custodian.” Commonwealth v. Hubble, Ky., 730 S.W.2d 532, 534 (1987) (emphasis in original). Appellant never stated that he fed the child the milk and castor oil mixture from a Mountain Dew bottle; the jury only heard Appellant state that he fed the child the mixture without identification of a certain vessel. Moreover, the Commonwealth did not test the bottle for the presence of milk or castor oil, a test that presumably could have linked the bottle to Appellant far more conclusively.

The only competent evidence tending to prove that Appellant fed the child from the Mountain Dew bottle came from the testimony of Detective Jerry Jones and Jeannie Herndon. Detective Jones testified that Appellant’s wife stated, during a second interview, that Appellant fed the child the milk and castor oil mixture from a green, plastic Mountain Dew bottle. Jeannie Herndon later testified that Appellant’s wife had told her that Appellant fed the child from a Mountain Dew bottle. Both of these statements should not have been admitted into evidence. Detective Jones’s statement was admitted in clear violation of the rule set forth in Bruton v. United States prohibiting the admission of a non-testifying codefendant’s confession that inculpates the defendant at a joint trial. 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Jeannie Herndon’s testimony, as used to establish that Appellant used a Mountain Dew bottle to feed the child, was clearly inadmissible hearsay. Inexplicably, both Detective Jones’s and Jeannie Herndon’s testimonies were permitted without objection from defense counsel. Nonetheless, I believe that Appellant’s substantial rights were affected by the admission of this testimony, which in turn was critical to admission of the Mountain Dew bottle, the most damaging evidence in an otherwise purely circumstantial case. I believe that reversal pursuant to RCr 10.26 is warranted.

STUMBO, J., joins this dissent.