JARROD WEISS V. COMMONWEALTH OF KENTUCKY

On the afternoon of April 27, 2011, in Louisville, Kentucky, Tanner

Browning was spending time with 'friends in his apartment. Around the time

·Tanner's guests were departing, Appellant, Jarrod Michael Weiss, who lived in

. . the same apartment complex, parked his vehicle in front of Tanner's

apartment. At that time, Appellant displayed his new stereo system for Tanner

and his friends. Eventually, Tanner's friends left, while Tanner and Appellant

remained together in the parking lot. What occurred thereafter is unknown. However; later that evening, Isaac Clark, a neighbor and friend of Tfinner's,

observed Tanner's patio door ajar. Clark grew concerned and decided to enter

·the apartment to check on Tanner. Clark discovered Tanner's lifeless body

lying inside his apartment bedroom. Tanner died from a fatal gunshot wound.

The Saint Matthews Police Department quickly focused on Appellant as

the culprit .. Countless witnesses confirmed that Appellant was the last

individual seen with Tanner. Police also uncovered that Appellant had

purchased a stolen gun from Tanner's roommate. Yet, law enforcement had

virtually no physical evidence tying Appellant to the crime, so no arrest was

made for several years. Eventually, Appellant's wife, Lavonna Blount, .her

brother, Gerald Blount, and her sister-in-law, Ashley Blount, came forward and

told detectives that Appellant had confessed to murdering Tanner. All three

witnesses indicated that Tanner owed Appellant money for marijuana and that

Appellant went to Tanner's to retrieve the money. When Tanner ·could not

produce the money, Appellant closed his eyes and shot Tanner. Appellant then

returned to his apartment where he cut up his pants and attempted to flush

the cuttings down the toilet. Appellant also disposed of the gun.

On September 15, 2015, a Jefferson County Grand Jury indicted

Appellant for one count each of murder and tampering with physical evidence.

A two-week trial commenced on January4, 2016, during which thirty-seven \ witnesses testified. Ultimately, the Jefferson Circuit Court Jury found

' Appellant guilty on both charges, in addition to being a persistent felony

offender in the second degree. The trial court sentenced Appellant in

conformity with the jury's recommended sentence of thirty years'

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imprisonment. Appellant now appeals his convktion and sentence as a matter

of right pursuant to § 110(2)(b) of the Kentucky Constitution.

Davis' Testimony

Appellant's first assignment of error concerns the testimony of Donovan

Davis. Prior testimony revealed that John Deverea~ burglarized Davis' vehicle

and recovered a .45 Glock. Devereaux then sold the stolen gun to Appellant.

The Commonwealth theorized that the stolen .45 Glock was the murder

weapon. However, the stolen Glock was never recovered. Thusly, evidence was

presented during the trial that both supported and contradicted· the ·

Commonwealth's murder weapon theory. In support, evidence showed that the

bullets loaded into the stolen gun were the sai:ne type recovered from the crime

scene. More specifically, Davis testified that he had loaded Remington Golden

Saber, 185-grain, hollow-point bullets into the gun prior to its theft. KSP

. . ballistics expert, Leah Collier, testified that a Remington hollow-point bullet

and casing were recoyered frqm the crime scene.

'The Commonwealth's murder weapon theory, however, had a significant ' flaw. According to Davis, the Glock manufacturer had shipped him the gun

along with two shell casings that were test fired at the point of assembly.

Essentially, the Glock manufacturer provides the buyer with two casings fired

from the purchased gun. Davis provided law enforcement with the test-fired

casings in order for them to be compared to the shell casing recovered from the

crime scene~ Ms. Collier was unable to make a conclusive match between the

test-fired casings and the one recovered from Tanner's apartment. Two . .

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independent ballistics experts also testified that the test-fired casings did rtot

match the casing found at the scene.

·The Commonwealth attempted to reconcile the inconsistencies in its

theory by disclosing-to the jury an off-the-record remark made by one expert,

Kelly Fite. He stated that Glock manufacturers are notorious for not properly

matching the test-fired casings with the correct gun. In other words, the test

fired casings that Davis provided may have been fired from a different Glock,

not the actual Glock he purchased. This would explain why experts cb~ld not

. . match the test-fired casings with the murder weapon.

With this information in mind, we turn to Appell~nt's.first argument

regarding Davis' testimony. Appellant takes aim at the trial court's allowance

of Davis' statements that Appellant claims were improperly presented to the

jury as expert opinions. More precisely, Davis testified that the .45 Remington

hollow,-point bullets he loaded into the Glock prior to its theft were rare

ammunition not easily accessible to the public. When prompted by the

Commonwealth to discuss the ammunition's availability, Appellant objected on

the grounds that the answer would be inadmissible expert testimony from a lay

witness. The trial court overruled Appellant's objection, explaining that Davis'

testimony was factual and not an expert opirtion. The Commonwealth

continued its questioning by asking Davis, in his personal experience

purchasing ammunition, how many types of .45 caliber ammunition and bullet

weights were availa_ble to purchase and which type of bullet was the most

common. Davis' answers demonstrated that in his extensive.history of

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purchasing ammunition, the bullets he had loaded into his gun prior to its

theft we~e the least common forms of ammunition for his particular . .45 Glock.

·In order to determine the _admissibility of Davis' testimony, we look to

Kentucky Rules of Evidence ("KRE") 701 .. This rule limits opinion testimony by

a lay witness to that which is, inter alia, "[r]ationally based on the perception of

the witness ... [and] [n]ot based on scientific, technical, or other specialized

knowledge within the scope of Rule [KRE] 702." This is not to say that lay

witnesses can never provide testimony on a subject that is technical in nature, ·

so long as their opinions are based on sufficient life experiences. Mondie v.

Commonwealth, 158 S.W.3d 203, 212 (Ky. 2005) ("The degree to which a

witness may give an opinion, of course, is predicated in part upon whether and

the extent to which the witness has sufficient life experiences that would

permit making a judgment as to the matter involved."). In the case before us,

Davis had corresponding life experience buying and utilizing ·am.munition. His

testimony indicated. that he was a firearms instructor who had purchased guns·

and ammunition since his. teenage years. · Furthermore, his testimony was

focused·entirely on his personal experience buying.ammunition for his own

gun. See Huntv. Commonwealth, 304 S.W.3d 15 (Ky. 2009). Accordingly, we

cannot find that the trial court abused its discretion, as Davis' testimony was

not based on scientific, technical, or specialized knowledge, rather his own

personal experiences.

Appellant also argues that Davis' testimony was inadmissible pursuant

to KRE 403. At the close of the Commonwealth's· case-iri-chief, .Appellant

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moved for a mistrial on the grounds that Davis' testimony regarding the stolen

Glock and test casings was more prejudicial than probative. The crux of

Appellant's argument to the trial court was that there was no connection

between Davis' stolen gun and the murder weapon. Consequently, Davis'

testimony concerning the Glock warranted a new trial.

KRE 403 requires a trial court to exclude evidence when its probative

value is substantially outweighed by the danger of undue prejudice. To begin

our analysis, we find that Davis' testjmony had substantial probative worth.

While the Commonwealth was unable to prove an exact match o.f the test-fired

casings and the crime scene casing, it provided sufficient proof connecting

. ' Davis' stolen gun to the crime. For instance, Appellant had purchased Davis'

stolen gun from Deveraux, and the bullet and casing found at the crime scene .

was the same type of bullet Davis had loaded into his gun prior to ~ts theft. In

addition, Davis' testimony regarding the stolen Glock did not cause Appellant

·to suffer undue prejudice. This Court discussed. the meaning of undue or

unfair prejudice in Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 716 (Ky.

2009), wherein we stated the following:

Evidence is unfairly prejudicial only if ... it appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish, or otherwise may cause a jury to base its decision on something other than the established propositions in the case.

(internal quotations and citations omitted) .. We do not believe Davis' testimony

led the jury to decide the merits of the case on anything other than the

·evidence presented. Accordingly, we cannot say that the trial court abused its

discretion in allowing Davis' testimony ..

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. Fite's Off-the-record Statement

We now turn back to the off-the-record statements made by Kelly Fite.

Appellant claims such statements constituted inadmissible hearsay. We agree .

. After KSP ballistics testing was ub.able to match the crime scene casing

with the test-fired casings, they were sent to Fite, a Georgia based ballistics

expert. Fite submitted a one-page report confirming that the casing from the

crime scene wds not fired from the same firearm that shot the casings from the

test weapon-the stolen Glock. Fite was not subpoenaed to testify at trial.

Instead, his report was introduced without objection to the jury through

Detective Napier's testimony. During his testimony, the Commonwealth asked

Detective Napier whether Fite had expressed any concerns that the test-fired

casings were actually :fired from a different Glock than the orie shipped to

Davis. Detective Napier revealed that he had "an off-the-record" conversation

with Fite, during which Fite .stated that the Glock manufacturers often fail to

provide the correct test-fired ca_sings. Since that statement by Fite was not in

the written report, Appellant objected to Fite's off-the-record statements on the

grounds of hearsay. The trial court overruled the objection without specifying

its reasoning.

. Without doubt, Detective Napier's stateme:i;its recounting his off-the" record conversation with Fite constituted hearsay within meaning of KRE 801,

and qualified for no exception. More importantly, and as t~e Commonwealth .

concedes, allowing Detective Napier to recount the off-the-record conversation

violated Appellant's right to confrontation under the Sixth Amend:r:nent to the

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United States Constitution and Section 11 of ouF Kentucky Constitution. See

Crawford v. Washington, 541 U.S. ,36 (2004) (U.S. Supreme Court declared that

out-of-court testimonial statements where the declarant is unavailable are

· catego~ically barred from admission under the Constitution unless the

defendant had a prior opportunity to cross-exa~ine the. witness). Our focus,

then, is whether this constitutional violation was harmless beyond a

reasonable doubt. Whittle v. Commonwealth, 352 S.W.3d 898, 905-06 (Ky.

2011) (citing Chapman v. California, 386 U.S. 18, 22, 24 (1967)). Accordingly,

, the Court must determine "whether the improper evidence was of a weight, was.·

. . of a striking enough nature, or played a prominent enough role in the

Commonwealth's case to raise a reasonable possibility that it contributed to

the conviction." Staples v. Commonwealth, 454 S.W.3d 803, 827 (Ky. 2014).

In reviewing the evidence as a whole, we believe there was substantial

proof of Appellant's guilt presented to the jury. Nl,lmerous witnesses testified

that Appellant was the last individual with Tanner, as close as thirty minutes

preceding his death. · Three witnesses testified that Appellant confessed to

murdering Tanner. All three witnesses' accounts of Appellant's confessions

were corroborated by other evidence .. This included the fact that Tanner owed

Appellant money for drugs, Appellant had a loaded gun, and Appellant tried to

flush his cut-up pants down the toilet-the latter corroborated by the property

manager having to fix the plumbing.· Moreover, Detective Napier's statement

concerning the off-the-record conversation was brief and added little insight

into wp.ether the casings1 were fired from the same gun. We believe most logical

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jurors would have considered the possibility that the Glock manufacturer

mismatched the test-fired casings with the purchased gun, even absent Fite's

statement~ Therefore, absent Detective Napier's inadmissible statements, our

evaluation of the remaining evidence reveals, beyond a r~asonable. doubt, that

a conviction would have ensued.

Detective Ball's Testimony

Appellant complains that the trial court committed r~versible error when

it allowed Detective Ball, the lead investigator, to express inadmissible opinion

testimony and hearsay, in violation of KRE 701. Appellant takes aim at the

Corri:rponwealth's questioning which induced Detective Ball to inform the jury

that Appellant was the exclusive suspect in his investigation. As· his testimony

unfolded, the Commonwealth asked Detective Ball if he told Appellant, "I think

you're my shooter." When Detective Ball answered in the affirmative, the

Commonwealth inquired as to his·reasoning. As Detective Ball recounted, he

intervi~wed a bevy of witnesses which revealed no additional suspects.

Appellant objected to the testimony on the grounds that Detective Ball was

providing improper opinion testimony that Appellant was guilty of murder.

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Moreover, Appellant claimed that Officer Ball's conclusion was based

For the foregoing reasons, the judgment of the Jefferson Circuit Court is . .

hereby affirmed.