PARKER V. COM
CRIMINAL:  Opening Statement
2005-SC-000343-MR.pdf
PUBLISHED: REVERSING
OPINION: NOBLE; SCOTT CONCURS IN PART AND DISSENTS IN PART BY SEP. OP; ABRAMSON NOT SITTING
DATE RENDERED: 12/20/2007

SC found Parker to be entitled to a new trial following conviction for murder because the trial court erred in allowing the playing of a rap CD in opening statement, with commentary by the Commonwealth, when the CD could not later be properly admitted, and the error could not be cured by admonition. Further, TC committed reversible error by denying Parker an instruction on second-degree manslaughter.

Before trial, Louisville police officers came into possession of a rap CD allegedly made by Parker, his brother Kenneth, and "Two Tom" Taylor. The three charged an officer five dollars for the CD. The trial court allowed the CD to be played during the Commonwealth’s opening statement over objection but warned the Commonwealth that if the CD was not admitted during trial that Parker would be entitled to a mistrial. The Commonwealth Attorney asserted a "good faith belief" that statements on the CD would constitute "adoptive admissions" by Parker, and during opening, commented that the Crips rapped about a violent act they committed on July 31, 2000 . After playing the CD, the Commonwealth commented further that the lyrics said "shot the bitch at close range" and "remember the 31St ." Later during the trial when the Commonwealth offered the CD into evidence, the trial court excluded it because it could not be properly authenticated or construed as adoptive admissions. Parker moved for a mistrial, and the TC denied the motion despite its previous statement.

In playing the CD during opening statement and in telling the jury what it purported to say, the Commonwealth placed unauthenticated evidence before the jury. As the trial developed it became apparent that the Commonwealth could not establish the meaning of the words, or even what they were, through witnesses, nor could the Commonwealth prove who made the CD, or whether Parker was actually connected to it. In short, the Commonwealth was able to tell the jury that the CD referred to Parker having committed the murder of which he was accused, and that he was bragging about it through the CD recording (which was clearly prejudicial) even though the CD could not be sufficiently authenticated to be admitted into evidence. Obviously Parker had no ability to cross-examine regarding this information or to otherwise properly defend against it. By using unauthenticated materials in opening statement the Commonwealth unfairly exposed the jury to inflammatory information of such a nature that no admonition could reasonably be believed to cure it.

TC usurped the role of the jury in determining that the evidence did not support a manslaughter second degree instruction. Even though the jury did find a wanton state of mind under the instructions given, they were not given the opportunity to consider a lesser state of wanton culpability. It is possible the jury would have found wanton murder anyway; however, it is also possible for a finding of lesser wanton behavior, even though unlikely.

SUMMARY:
SC found Parker to be entitled to a new trial following conviction for murder because the trial court erred in allowing the playing of a rap CD in opening statement, with commentary by the Commonwealth, when the CD could not later be properly admitted, and the error could not be cured by admonition.

Scott C. Byrd
Olgin and Byrd