McPherson v. Commonwealth 2010-SC-379 To be published
Britton McPherson and his former girlfriend, Tamala Parker, were charged with murdering, Lora Milligan, a police informant. Parker pled guilty to second degree manslaughter and PFO in exchange for testimony against McPherson.
Reverse 404(b) evidence properly excluded and did not deny McPherson his Right to Present a Defense
Three years, prior to the murder, Parker was arrested for trafficking. She made a recorded call from the jail, telling the person she believed had informed on her that they “were dead.” McPherson argued her prior threat would serve to impeach her testimony and show she was violently inclined towards anyone who informed against her, thus more likely she committed the murder of Milligan.
The Court held the evidence was properly excluded as impeachment under KRE 609, since Parker did not deny the prior conviction. Further, the Court held that it was not inadmissible as reverse 404(b) evidence. Though both acts involved violence, or a threat of violence, against an informant, a threat made from jail three years prior was too remote in time and not sufficiently similar to the act of killing an informant and disposing of her body.
The Court held that exclusion of the evidence did not abridge McPherson’s right to present a defense, since it was “marginally relevant” and he was able to argue his aaltperp evidence against Parker through other means.
McPherson was not Entitled to a Missing Evidence Instruction
The Court found that McPherson was properly denied a missing evidence instruction after a detective destroyed his notes from an interview of Tamala Parker after drafting a report. The Court dismissed the act as “ a matter of routine housekeeping rather than suppression of evidence.” Continuing to place an undue burden on defendants, the Court found because McPherson could not prove ill intent, or that exculpatory information was contained in the notes there was no error.
McPherson was not entitled to be sentenced by the Trial Court
McPherson argued he was entitled to be sentenced by the trial court after the jury failed to agree on a sentence, and objected to the empaneling of a second jury for sentencing. The Court found no error under KRS 532.055, because a jury was required to make findings regarding aggravating factors.
Contributed by Erin Yang
