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requested a bench conference to determine their relevancy. (Id. 14:23:25
- 14:23:58) Admitting that the casings had never actually been tested,
the Commonwealth nevertheless contended that they were relevant to show
that Aaron had previously fired the Smith and Wesson revolver, despite
Aaron’s statements to the contrary (Id. At 14:27:37 - 14:28:00) Detective
Schweizer found the shell casings in the Pop-Tart box underneath Aaron’s
bed during a search of Hardin home. (Id. At 14:27:37 - 14:28:00, 14:35:44
- 14:36”50) Footnot
#2.
D. Aaron countered that these photographs constituted improper and prejudicial
evidence of prior acts under KRE 404(b) and that no notice had been given
by KRE 404(c). (TAPE Nol 078-1; 12/31/00; 14:28:01 - 14:29:37). But moreover,
it is clear that these shell casings did not exist as evidence: the Commonwealth
maintained that the box and shells were never actually collected by the
police or the Evidence Technician Unit (ETU). (Id. At 15:00:18 - 15:00:27)
E. Yet, Judge Shake colluded with Def. Prosecutors, as shown during trial:
Commonwealth:
"Judge, we do not, maybe, we do not have the Pop-Tart box. We do
not have the .38 shell casings. They were not collected. But they have
pictures of those."
Judge Shake:
"Well, the bottom line, they’re not introducing the box."
Commonwealth:
"We’re not introducing the box."
Judge Shake:
"They’re not introducing the casings."
Commonwealth:
"We’re not introducing the casings."
| Footnote
#2: Curiously, Detective Schweizer testified that he found
the box under Aaron’s bed immediately after the scene was videotaped.
(TAPE No. 078-2; 12/13/00 14:52:46 - 14:53:50) However, Ms. Hardin
did not actually sign the consent to search form until 10:30, after
the search had already been conducted. (TR I, 51). |
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