Kirby v. Commonwealth

Benton, J.,

concurring in part, and concurring in the remand for a new trial.

I agree with the portion of the opinion that holds that the trial judge erred in failing to grant a new trial. Because the evidence that compels a new trial bears upon the validity of the evidence introduced at trial to prove the chain of possession and the defendant’s guilt, I believe that this Court should hesitate to affirm those issues. By deciding those issues the Court risks giving its imprimatur to evidence that may have been fabricated. Under the circumstances that have been established on this record to warrant a new trial, I would confine our opinion to the matter of the new trial. As to the other issues, I would simply hold that the record does not warrant a dismissal of the indictment.