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Garrett v. Commonwealth

Supreme Court of Kentucky

December 14, 2017

JERARD GARRETT APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

         ON APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE JAMES M. SHAKE, JUDGE NOS. 13-CR-000246 AND 13-CR-000744.

          COUNSEL FOR APPELLANT: Samuel N. Potter Robert Chung-Hua Yang Assistant Public Advocate Department of Public Advocacy.

          COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky Jason Bradley Moore'. Assistant Attorney General.

          OPINION

          VANMETER JUSTICE.

         Jerard Garrett appeals as a matter of right from a judgment of the Jefferson Circuit Court sentencing him to life in prison without the possibility of parole for twenty-five years for two counts of murder, two counts of first-degree robbery, one count of first-degree wanton endangerment, and one count of terroristic threatening. For the following reasons, we affirm the judgment and sentence.

         I. BACKGROUND.

         In one indictment, a Jefferson County grand jury charged Garrett and his co-defendant, Billy Richardson, with one count each of murder, first-degree robbery, first-degree wanton endangerment, third-degree terroristic threatening, and being a first-degree persistent felony offender ("PFO1"), arising from the murder of Jamie Young on December 29, 2012. In a separate indictment, the grand jury charged Garrett and Richardson with one count each of murder and first-degree robbery, arising from the murder of Kenny Forbes on December 23, 2012. Over Garrett's objection, the trial court consolidated the charges in the two indictments for trial. Pursuant to RCr[1] 6.18, the trial court found that the defendants' practice of scheduling meetings through a known intermediary to conduct a drug transaction, then robbing the victim, was sufficiently unique to warrant joinder of the charges and consolidation of the indictments. Garrett now challenges this decision of the trial court, as well as several of its other decisions. We do not find any of Garrett's challenges to have merit.

         II. ANALYSIS.

         a. The Trial Court Did Not Abuse Its Discretion by Admitting the Commonwealth's Ballistics Evidence.

         Garrett suggests, as a general matter, that an opinion from a firearm and toolmark examiner that a particular bullet was fired from a particular gun should no longer be admissible in criminal trials in Kentucky. We note that ballistics testimony has been allowed by this Court since at least 1948. Morris v. Commonwealth, 306 Ky. 349, 208 S.W.2d 58 (1948). Still, Garrett argues that the methodology and reliability of the Commonwealth's ballistic examiner's testimony that bullets found at both murder scenes were fired from the same weapon did not meet the criteria set forth in KRE[2] 702 for admissibility, and therefore should not have been admitted. After conducting Daubert[3] hearings on the admissibility of testimony from the Commonwealth's Kentucky State Police ("KSP") firearms expert, Leah Collier, and Garrett's expert, William Tobin, a forensic metallurgist materials scientist who worked for the FBI for 27 years, the trial court concluded that both experts' testimony would be admissible.

         This Court reviews a trial court's ruling on the admissibility of expert testimony for an abuse of discretion unless the challenge is to the trial court's findings of fact regarding the Daubert factors, which we review for clear error. Miller v. Eldridge, 146 S.W.3d 909, 915 (Ky. 2004). Because Garrett challenges the trial court's preliminary factual determination as to the reliability of ballistic evidence under Daubert, we review for clear error.

         Daubert assigns the trial court the role of "gatekeeper" charged with preventing the admission of unreliable, pseudoscientific evidence:

[T]he trial judge must determine at the outset... whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.

Daubert, 509 U.S. at 592-93, 113 S.Ct. at 2796 (footnote omitted); KRE 702.

         The trial court may consider the following factors in assessing the reliability of expert testimony:

(1) whether a theory or technique can be and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether, with respect to a particular technique, there is a high known or potential rate of error and whether there are standards controlling the technique's operation; and (4) whether the theory or technique enjoys general acceptance within the relevant scientific, technical, or other specialized community.

Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 578-79 (Ky. 2000) (citing Daubert, 509 U.S. at 592-94, 113 S.Ct. at 2796-9.7). "In addition to being reliable, the proposed testimony must assist the trier of fact to understand the evidence or to determine a fact in issue. This condition goes primarily to relevance." Miller, 146 S.W.3d at 914 (internal quotations and citation omitted).

         Garrett maintains that the scientific community has attacked and refuted the reliability of the premises and methods of specific source attribution in ballistics' analysis, thus rendering Collier's testimony incompetent. In support of his position, Garrett primarily relies on a 2009 National Research Council's report titled Strengthening Forensic Science in the United States: A Path Forward ("NRC Report"), which calls into question the validity of the assumptions about toolmarks that underlie firearms identification. However, the Association of Firearm and Toolmark Examiners ("AFTE") theory of identification, which Collier testified she utilized and which the federal courts have recently held satisfies Daubert, permits a conclusion that two or more bullets are of common origin "when the microscopic surface contours of the toolmarks are in sufficient agreement." United States v. Otero, 849 F.Supp.2d 425 (D.N.J. 2012), affd 557 Fed.Appx. 146 (3rd Cir. 2014).

         In Otero, the defendants sought to exclude the testimony of the government's firearms examiner that a bullet was discharged by a specific weapon. 849 F.Supp.2d at 427. The Otero court recognized that the AFTE theory of identification innately contains a subjective component in determining "sufficient agreement" which "must necessarily be based on the examiner's training and experience." Id. at 432. In assessing the admissibility . of the firearm examiner's testimony, the Otero court meticulously analyzed the Daubert factors and found the proffered testimony satisfied each one. Id. at 431-435.

         Specifically, the Otero court found that "the AFTE theory is testable and has been tested." Id. at 432. The court acknowledged the same NRC Report, upon which Garrett relies, and found that while the toolmark identification procedures "do indeed involve some degree of subjective analysis and reliance upon the expertise and experience of the examiner" the methodology is reliable. Id. at 438. Garrett points to the Otero court recognition that "claims for absolute certainty as to identifications made by practitioners in this area may well be overblown" to argue that Collier's identification of the bullets improperly amounted to absolute certainty, as opposed to a reasonable degree of certainty. Id. However, our review of the record shows that Collier testified that she examined the two bullets from this case visually and microscopically and "made the determination that they were fired from the same firearm." Collier went on to testify that bullet condition can vary. She stated that while bullet condition runs the full range, even completely mutilated, the bullets in this case were in very good condition. Assessing Collier's conclusion that the bullets were fired from the same gun in the context of her entire testimony, which reflects the varying condition of ...


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