COA - Newkirk - Other Evidence

Commonwealth v. Newkirk, 2011-CA-001819-MR.

Rendered November 21, 2014; TO BE PUBLISHED

NewKirk was indicted for burglary of an apartment.  A video surveillance system at the apartment complex captured the events.  A detective, the victim, and the apartment manager viewed the video together.  The detective observed on the tape a white male wearing blue jeans and a gray long-sleeve shirt using tools to pry open the victim’s window and gaining access to her apartment.  The video was subsequently recorded over.
 

The trial court ruled evidence of the video was to be excluded without specifying a specific rule.  The case was dismissed without prejudice and the Commonwealth appealed the ruling regarding evidence of the video. 

             

 In reviewing the case, the Court of Appeals cited KRE 1004(1), which reads:

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if… [o]riginals lost or destroyed.  All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith. 

 

The Court of Appeals concluded that pursuant to KRE 402 and 1004(1), the testimony of the detective (and anyone who viewed the videotape) is admissible “other evidence” of the contents of the destroyed videotape.   

It should be noted that this Opinion is not yet final and could be reviewed by the Supreme Court.  Despite the Court of Appeals conclusion in this case, the Supreme Court has explicitly “held that a lay witness ‘may not interpret audio or video evidence, as such testimony invades the province of the jury, whose job is to make determinations of fact based upon the evidence.’” Morgan v. Commonwealth, 421 S.W.3d 388, 392 quoting Cuzick v. Commonwealth, 276 S.W.3d 260, 265–66 (Ky.2009) (emphasis in original).  This argument should be used in response to this particular Court of Appeals Opinion.  

Contributed by Brandon Jewell