Harbin v. Commonwealth

*198Dissenting Opinion by

Justice STUMBO.

Respectfully, I must dissent. I disagree with the majority opinion on Issue I and Issue II raised by Appellant. First, the majority opinion is consistent with our pri- or ruling in Lawson v. Commonwealth, Ky., 53 S.W.3d 534, 544 (2001), that “the questioner should define the penalty range in terms of the possible minimum and maximum sentences for each class of offense .... ” However, I must disagree with the majority’s reasoning that it was harmless error since Appellant pled guilty to the PFO charge and was ultimately given the minimum possible twenty-year sentence.

This error cannot be harmless because it occurred prior to anyone knowing that the case would not reach the penalty phase. “A meaningful voir dire examination by both sides is a sine qua non to the seating of a fair and impartial jury.” Shields v. Commonwealth, Ky., 812 S.W.2d 152, 153 (1991), overruled in part by Lawson, supra.

The issue in the case at bar was whether the trial court erred in prohibiting defense counsel from advising the jury panel about the specific sentence range carried by each of the offenses. The majority found the trial court did err. It is my opinion that the entire trial process was infected by this error and I would reverse for a new trial.

Secondly, admission of testimony regarding a photograph was highly prejudicial as it was not relevant to charges against Appellant, nor did it have any probative value. Appellant and his girlfriend testified as to the source and purpose of the money in the van, i.e., proceeds from a lawsuit to be used to purchase a home. No evidence was presented that connected the money in the photo with the money in the van or illegal activity.

We are required to determine whether the probative value of such evidence outweighs the potential for prejudice to the accused. Although the photograph was not introduced, forcing Appellant to testify about the large sums of money featured in the photograph may have created an association with drug trafficking in the minds of the jury, thereby prejudicing Appellant. I believe this prejudice far outweighed the probative value of the evidence. The trial judge erred by failing to exercise sufficient caution when he allowed the Commonwealth to question Appellant regarding the contents of the photograph. Accordingly, I would reverse for a new trial.

JOHNSTONE, J., joins this dissent.