CRIMINAL: Nondisclosed information by prosecutor deemed immaterial under facts; funding of eyewitness experts: SHEGOG VS. COMMONWEALTH (COA 7/25/2008)

SHEGOG VS. COMMONWEALTH
CRIMINAL:  RCr 11:42;  expert funding
2007-CA-000680
PUBLISHED: AFFIRMING
PANEL: ROSENBLUM PRESIDING; NICKELL, THOMPSON CONCUR
CAMPBELL COUNTY
DATE RENDERED: 7/25/2008;  9/18/2008

CA affirmed Circuit Court’s denial of Defendant’s RCr 11.42 motion seeking post-conviction relief.  Trial counsel was not ineffective for withdrawing motion for expert witness funding.  When Shegog’s trial began on April 2, 2002, the question of whether criminal defendants could obtain and introduce testimony from eyewitness identification experts during trial was unsettled in the Commonwealth. While Shegog is correct that this Court rendered an opinion on this question prior to his trial, our Supreme Court granted discretionary review of our decision and resolved the question in Commonwealth v. Christie, 98 S.W.3d 485 (Ky. 2002), wherein the court held that funding for eyewitness identification witnesses could be granted when appropriate pursuant to Kentucky Rules of Evidence (KRE) 702 and 403. Id. at 492. Therefore, until the Christie decision, there was no published precedent on this issue.
The prosecutor failed to disclose evidence of a prosecuting witness’ criminal history to Shegog’s defense counsel. Notwithstanding the Commonwealth’s failure, the nondisclosed information was immaterial to Shegog under the facts of this case.

Note:  This Defendant will not win an award for criminal genius of the year – the getaway car carried a vanity license plate bearing the name “Shegog.”

Digested by Scott C. Byrd
www.olginandbyrd.com