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Court Rejects Husband’s Claim Wife Shot Herself

The Court of Appeals says there was sufficient evidence to convict defendant of second-degree murder and use of a fire­arm; the trial court did not err in denying defendant’s motions for a mistrial and a new trial based on attorney misconduct, failing to give proper jury instructions, improperly admitting evidence of prior inconsistent statements and in failing to give a curative instruction to the jury.

Defendant contends the commonwealth failed to exclude his reasonable hypoth­esis of innocence – specifically that his wife Amy Carter’s death by a single gun­shot wound to the neck was the result of a suicide. Despite defendant’s argument that the weight of the physical and foren­sic evidence disproves that he murdered Amy and supports a finding of suicide be­cause any other conclusion would be en­tirely inconsistent with the evidence, the fact finder was not required to accept de­fendant’s story. His arguments on appeal fail to afford the appropriate deference to the jury’s findings of fact.

Defendant did not testify and the only evidence of his actions was derived from statements he provided to law enforce­ment officers. His timeline of events sur­rounding Amy’s death contrasted with the testimony of other witnesses. Defendant also claimed to have injured the webbing of his left hand between the thumb and forefinger by jamming it into the hammer area of the .357 revolver used in Amy’s death. He said he attempted to stop the hammer from hitting the firing pin. De­fendant gave a contradictory explanation of his injury to both his son and the hos­pital nursing staff when he explained the injury was from a lawn mower blade. The laboratory analysis further revealed that defendant’s DNA was on the revolver’s grip, in combination with Amy’s DNA. The trial court did not err in finding the evidence sufficient to convict defendant of second-degree ad the use of a firearm in the omission of murder.

Courtroom demonstration

The trial court also did not err in deny­ing a mistrial due to the commonwealth’s demonstration with a firearm. During the prosecutor’s cross-examination of Dr. Daniel, Dr. Daniel opined that defendant sustained the injury to the webbing of his left hand by contact with either the .357 revolver’s rear sight or by the back of the hammer. Dr. Daniel then explained that the firing pin for the revolver in ques­tion was not a sharp point attached to its hammer. The prosecutor then stated, “If I had a sharp – if the firing pin was right here, and I did this, I would cut myself, wouldn’t I?” The prosecutor asked Dr. Daniel if he was able to see a resulting in­dentation on his thumb as a consequence of the way he manipulated the hammer. Defendant objected that the prosecutor “may not testify and demonstrate things on himself in front of the jury.” The tri­al court directed the prosecutor to ask a question of the witness, and the pros­ecutor asked Dr. Daniel if had had seen what he had done, and if he could observe whether the prosecutor was bleeding as a result. When defendant sought a mistri­al, the trial court denied the motion and directed the jury to disregard the demon­stration. The record is devoid of any evi­dence suggesting that the jury failed to follow the court’s instruction, and it must be presumed that they did.

The trial court also did not abuse its discretion in concluding that defendant’s right to a fair trial was not violated when a juror approached the prosecutor and his secretary as they were getting out of a car and asked the secretary for a cigarette.

Harmless error

The trial court erred in declaring Scott Alford a hostile and adverse witness to the commonwealth, but the error was harmless. Alford simply could not remem­ber the details of a conversation he had years earlier regarding whether he had told law enforcement officers that, while driving home with defendant, defendant had told Amy over the phone “I’ve got 120 Xanaxes, and if that don’t do it, I’ve got a .357.” The remaining evidence against defendant in the light most favorable to the commonwealth was substantial, and the trial court action did not affect the verdict or otherwise deprive defendant of a fair trial.

Finally, we reject defendant’s claim that the affidavit relied upon to secure a search warrant of his residence failed to set forth any nexus between the items sought and their relevance to the investi­gation, and for that reason and addition­al reasons, the trial court should have granted defendant’s motion to suppress. Under the totality-of-the-circumstances test, the trial court’s conclusion was not wrong as a matter of law. The trial court also correctly applied the good faith ex­ception to the exclusionary rule when it assumed without deciding that the war­rant was overbroad.

Convictions affirmed.

Carter v. Commonwealth (Humphreys) No. 0048-16-3, Nov. 1, 2016; Lee County Cir.Ct. (McElyea) Timothy W. McAfee for appellant; Benjamin H. Katz, AAG, for appellee. VLW 016-7-254(UP), 20 pp.

VLW 016-7-254