IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76 .28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
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RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
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OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
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RENDERED : APRIL 24, 2008
,NOT TO BE PUBLISHED
AT
~*Uyrrmr %Ll'ourf of
2007-SC-000176-MR
ON APPEAL FROM GREENUP CIRCUIT COURT
V. HONORABLE ROBERT B. CONLEY, JUDGE
04-CR-00149
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING IN PART AND REMANDING FOR RE-SENTENCING
Appellant Wayne Calvin Murphy was found guilty of first-degree rape, first-
degree assault and first-degree robbery by a Greenup Circuit Court jury. He was
sentenced to life in prison on the rape conviction and twenty years each on the assault
and robbery convictions . He appeals to this Court as a matter of right, asserting four
errors : 1) that the trial court erred by admitting testimony concerning microscopic hair
analysis ; 2) that the Appellant was unfairly prejudiced when the trial court erroneously
admitted evidence about the results of a presumptive blood test; 3) that the trial court
erred by denying Appellant's motion for a directed verdict of acquittal due to insufficient
evidence to sustain a conviction on the charges ; and 4) that the trial court erred by
ordering that the Appellant's sentences be served consecutively, rather than
concurrently . For reasons stated herein, we affirm in part and remand to the trial court
for re-sentencing .
On the afternoon of July 14, 2004, Jane Doe' was working at her long-time place
of employment, the Superstar Video store in Russell, Kentucky. A man entered the
store and after looking around, made his way to an employee-only area in the back of
the store . Ms. Doe told the man he was not allowed in that area, whereupon he cursed
at her and left the store . She then began cleaning the store.
Shortly thereafter, a second man entered the store. He attempted to rent a
movie, but was told by Ms . Doe he would first have to establish a membership with the
store . This man, Ryan Dixon, gave his driver's license to Doe, and she entered his
biographical information into the store's computer. Dixon left with his movie after telling
Doe he was going to go talk to a friend, but indicated to Doe he would return to select
another movie.
Doe had resumed cleaning the store when she heard the scuffling of boots
across the floor. Before she could react, Doe was struck on the back of the head . Doe
was then dragged to the office area in the back of the store by Dixon and the man who
had entered the store earlier, the man Doe would later identify as the Appellant, Wayne
Calvin Murphy. Doe testified that Murphy beat her severely and demanded that she
open the safe . Murphy kicked Doe in the stomach when she told him there was no
money in the store's safe because she had just made a bank deposit . Doe further
testified that when Murphy saw a picture of Doe's son he told her he would go to her
house and cut her son's throat if she did not open the safe .
Doe testified that she attempted to escape after Murphy demanded the ring she
was wearing. She threw the ring and ran, scrambling up the store's shelves in an
1 The victim's name has been change in an attempt to protect her privacy.
attempt to climb through the drop ceiling and into a bathroom. But Murphy grabbed Doe
by the hair and dragged her into a back room where, armed with a hammer, he violently
raped Doe while Dixon held her down. Doe testified that after the rape, Murphy told her
"kiss your ass goodbye and pray you go to heaven," before striking her viciously atop
her head with the hammer.
Doe was discovered nude and bleeding by a customer who telephoned 911
telling the dispatcher that Doe was bleeding profusely with bone protruding from her
skull. Doe suffered a near-fatal subdural hematoma in addition to abrasions and
contusions to the arms, shoulders and vaginal area . Doe has undergone five surgeries
arising from the injuries suffered in the attack .
Detective Tim Wilson of the Russell Police Department testified at trial that Dixon
was immediately identified as a possible suspect because his personal information was
still on the video store's computer when police arrived . This information would help lead
the police to Dixon who implicated Murphy. Murphy was arrested two days later.
1. HAIR ANALYSIS
Appellant claims that the trial court erred when it permitted expert opinion
testimony as to microscopic hair analysis . Appellant claims that hair analysis evidence
is too unreliable and too prejudicial to be admitted at trial . When Appellant's trial
counsel objected, the trial court overruled the objection, but asked Appellant's attorney if
she desired a Daubert hearing on the issue. Appellant's trial counsel declined this offer.
Hair comparison by microscopic analysis has been admissible in Kentucky courts
for many years. This Court has recognized that microscopic hair analysis has been
"overwhelmingly" accepted in other jurisdictions and has authorized Kentucky trial
courts to "take judicial notice that this particular method or technique is deemed
scientifically reliable . ,2 Much of the authority cited in Appellant's brief is for the
proposition that microscopic hair analysis alone, unlike modern DNA testing, is not a
basis for positive personal identification . This was acknowledged by the
Commonwealth's expert during defense counsel's cross-examination, along with other
limitations inherent in such evidence .
The admissibility of evidence at trial is within the sound discretion of the trial
court. The hair analysis evidence, as in Johnson, was admissible to show that the
Appellant was not excluded as the source of the hair found at the crime scene. Such
evidence was particularly relevant where among the defenses asserted at trial,
Appellant contended that he was not at the video store on the day in question and that
someone else4 committed the crimes. Furthermore, similarities between the Appellant's
hair and the hair found at the crime scene are relevant circumstantial evidence to be
considered alongside all other admissible evidence and accorded the weight deemed
appropriate by the jury. While hair comparison evidence is far from conclusive, the trial
court did not abuse its discretion in admitting the evidence at trial .
II . BLOOD TEST EVIDENCE
Appellant's second claim of error arises from the trial court's decision to allow
testimony by the Commonwealth's expert witness that substances found on and about
Appellant were blood . At trial, forensic biologist Shannon Phelps testified as to tests
conducted on the clothing worn by Appellant at the time he was arrested, two days after
2 Johnson v. Com ., 12 S .W.3d 258, 263 (Ky. 1999).
3 Ford v. Com., 665 S .W.2d 304 (Ky. 19884).
4 John Barger, discussed infra.
the crime was committed . Over Appellant's objection, Phelps testified that Murphy's
shoes tested positive for the presence of blood . However, the blood sample on the
shoe was too small to go to further DNA testing or even to determine whether the
substance was human or animal blood . Because of this uncertainty, the Appellant
claims that testimony regarding results of the test was unreliable and that he was
prejudiced by its admission at trial .
Kentucky case law holds that the trial court has broad discretion with respect to
determining the admissibility of evidence . An appellate court will not disturb the trial
court's exercise of discretion to admit or exclude evidence except upon a showing of
abuse of discretion .
In the trial court's view, the testimony as to the presumptive blood test was
relevant due to the possible presence of human blood on the Appellant's shoes making
it somewhat more likely that he was involved in the violent assault . Defense counsel
capably took advantage of the slight value of this evidence and highlighted the
limitations of the presumptive blood testing upon cross-examination. While such
evidence may prove very little, deficiencies in this type of evidence go to the weight
assigned to it by the jury, not to its admissibility . Thus, it cannot be said the trial court's
decision to admit the evidence was an abuse of discretion .
III . DIRECTED VERDICT
Appellant's third claim of error is that he should have been a granted a directed
verdict on all counts at the close of the Commonwealth's case-in-chief. Appellant
5 Owensboro Mercy Health Systems v Payne, 24 S .W.3d 675, 677 (Ky. App.
1999) .
6 Fugate v. Com. , 993 S .W .2d 931, 935 (Ky. 1999) .
argues that because there was no admissible scientific evidence to support what
Appellant characterizes as "unreliable eyewitness testimony," a directed verdict in
Appellant's favor was required . Specifically, Appellant claims the victim's eyewitness
testimony, and the so-called "snitch" testimony of Donald Eugene Howard and John
Barger are insufficient to support a conviction . Nonsense .
Appellant claims that the victim's own eyewitness testimony was unreliable. In
support of this proposition, Appellant cites to anecdotal information from unrelated
cases and statistics from the Innocence Project regarding overturned convictions based
on erroneous eyewitness identification . However, none of this has any direct
relationship to the specific facts and circumstances of this case. In fact, the record
reflects that the victim had substantial, protracted face-to-face interaction with the
Appellant during the course of the robbery, rape and assault .
Donald Eugene Howard shared a jail cell with the Appellant in the days following
Appellant's arrest. At trial, Howard testified that the Appellant admitted to him that the
Appellant was. present when the crime was committed, but otherwise Dixon was solely
responsible for the victim's injuries. Howard further testified that he had received no
consideration from the Commonwealth in exchange for his testimony.
John Barger arrived on the crime scene after the police arrived . Eventually, he
told the police that he walked in on the crime scene inadvertently when he stopped to
inquire about possible employment at the video store . Barger testified that when he
entered the store he saw Dixon and the victim who was on her hands and knees, naked
from the waist down, and bleeding profusely . Barger testified that he saw a second
man, who he identified as the Appellant, emerge from the back room and drag the
victim by her hair towards the back room . Barger claimed he left the store out of fear for
the safety of his own family who were waiting for him in their car. At trial, the defense
characterized Barger as an alternate suspect and on appeal attempts to marginalize his
testimony as unreliable "snitch" testimony. However, it is the province ,of- the jury to
assess the credibility of witnesses and the weight to assign to their testimony .'
In ruling on a motion for directed verdict, the trial court must draw all fair and
reasonable inferences from the evidence in favor of the Commonwealth to determine if
the evidence is sufficient to induce the jury to believe beyond a reasonable doubt that
the defendant is guilty .$ On appeal, the test is "if under the evidence as a whole, it
would be clearly unreasonable for a jury to find guilt" then the defendant is entitled to a
directed verdict9 A review of the evidence presented in this case reveals that the trial
court properly determined that a reasonable jury could find guilt beyond a reasonable
doubt. As such, there was no error.
IV. SENTENCING
On February 15, 2007, an order by the trial court was entered amending the
judgment against Appellant to require that the sentences imposed must be run
consecutively in accordance with the jury's verdict from the penalty phase of the trial .
Appellant claims for the first time on appeal that this sentence is improper . In its brief,
Appellee takes the position that since the Appellant did not preserve the sentencing
Roark v. Com., 90 S .W .3d 24 (Ky. 2002) .
8 Penman v. Com., 194 S .W .3d 237, 247 (Ky . 2006).
9 Com . v. Benham, 816 S .W.2d 186,187 (Ky. 1991) .
issue, there is nothing for this Court to review. However, this Court has recognized that
sentencing issues may be raised for the first time on appeal . 1o
Since this claim of error was not preserved, it must be reviewed under the
palpable error - stalldard and be shown to prevent manifest injustice ." For an error to be
palpable, it must be "easily perceptible, plain, obvious and readily noticeable .
Palpable error exists when the reviewing court believes there is a substantial possibility
that the result in the case would be different without the error. 13
Under Kentucky law, when multiple sentences are imposed for multiple crimes,
definite sentences must run concurrently with indefinite sentences . 14 Furthermore, both
definite and indefinite sentences are satisfied by service of the indeterminate term . 15
Additionally, this Court has stated that "no sentence can be ordered to run consecutively
with such a life sentence in any case, capital or non-capital . "16 Accordingly, Appellant
suffered obvious prejudice and manifest injustice by being sentenced to a term of
imprisonment greater than permitted by law. For the foregoing reasons, we affirm the
convictions, but vacate Appellant's sentence and remand the case to Greenup Circuit
Court with instructions to sentence Appellant in accordance with the requirements of
K .R.S . 532 .110(1)(a) .
10 Cumminqs v. Com ., 226 S .W.3d 62, 66 (Ky. 2007).
11
RCr 10.26 .
12
Burns v. Level, 957 S .W .2d 218, 222 (Ky. 1997)(citin BLACK'S LAw DICTIONARY
(6th ed . 1995)).
13
Schoenbachler v. Com ., 95 S .W .2d 830, 836 (Ky. 2003).
14 K .R .S. 532 .110(1)(a) .
15
Ibid .
16
Bedell v. Com ., 870 S .W.2d 779 (Ky. 1993).
All sitting . All concur.
COUNSEL FOR APPELLANT :
Susan Jackson Balliet
Assistant Public Advocate
Department of Public Advocacy
Suite 302, 100 Fair Oaks Lane
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General of Kentucky
George G . Seelig
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204