dissenting.
Respectfully, I dissent.
The Majority Opinion is woefully short on the critical facts and precise legal issues involved. Thus, with apologies to the reader, this Dissent is extended by material which should be in the Majority Opinion.
I. REVERSIBLE ERROR IN ADMITTING EVIDENCE OF AN ALLEGED PREVIOUS UNCHARGED CRIMINAL ACT, AND DENYING APPROPRIATE REBUTTAL
When the appellant took the stand in his own defense, a part of his testimony was that he was a loving and concerned father, *753and he had gone to the shopping center parking lot, the scene of the shooting, on the night in question because he was told that his son was running loose unprotected in the parking lot, after he had been unable to rouse the authorities to deal with the situation.
On the pretext of rebutting this testimony, the Commonwealth recalled Donna Janes, the appellant’s former paramour who was now living with Joe Biggerstaff, the decedent, when this homicide occurred. Donna Janes testified to an incident occurring eight months before, which if true, represented collateral criminal activity of a serious and offensive nature, highly prejudicial to the character of the accused.
Appellant had lived with Donna Janes for approximately seven years, and the child born of this relationship had been the subject of a custody and visitation battle following their separation. Donna’s so-called rebuttal testimony described an altercation some eight months before, wherein the appellant allegedly shot through the window of a car she occupied with their child. As independent corroboration of Donna Janes’ story the Commonwealth then called Officer Jay Gadberry, who had gone to the scene of the prior altercation, and who testified that there was a bullet hole in the driver’s side window just as Donna Janes had testified.
None of this testimony reflected animosity or motive to shoot Joe Biggerstaff, except perhaps by piling inference on inference, or through remote and insubstantial inference, nor does the single transgression, even if true, directly refute the appellant’s testimony that he was a loving and concerned father. Its admission fits none of the exceptions to the rule against proof regarding incidents of prior, uncharged, specific acts of criminal misconduct. As we stated in Drumm v. Commonwealth, Ky., 783 S.W.2d 380 (1990):
“The ‘General Rule’ is ‘[ejvidence of the commission of crimes other than the one that is the subject of a charge is not admissible to prove that an accused is a person of criminal disposition.’ [Citation omitted.] Before admitting such evidence the burden is on the Commonwealth to establish a reason to apply some well-defined exception.” Id. at 381.
Further, even where “evidence is debat-ably or remotely relevant,” it is “not” admissible unless “the probative value of the evidence outweighs its inflammatory nature.” Commonwealth v. Morrison, Ky., 661 S.W.2d 471, 473 (1983). [Emphasis original.]
The appellant denied this evidence regarding a prior shooting incident was true. It is highly significant that in a post-trial affidavit Officer Gadberry, who had confirmed the truth of Donna Janes’ claim, recanted a significant part of his testimony. His affidavit stated that, upon reflection, he remembered there was no bullet hole through the driver’s side window of the car as Donna Janes had testified. To the contrary, the window had been knocked out and was in pieces across the interior of the car, from causes unknown. Officer Gad-berry’s new version was consistent with testimony which would have been forthcoming from the appellant’s brother, who owned the car and who was denied the right to testify to disprove Donna Janes’ version of the prior incident. The brother had been present in court when Donna Janes and Officer Gadberry, testified and the trial court held he was precluded by the so-called separation of witnesses rule, Civil Rule 43.09, from giving surrebuttal testimony.
The testimony of this witness, and another witness who swore that she heard Donna Janes admit that in her anger she made up this story about shooting into her car, was offered in surrebuttal, and the separation of witnesses rule was erroneously applied. The separation of witnesses rule is not inflexible, and the interest of justice requires the court to waive an innocent violation in order to permit a party to confront new evidence presented after he has completed his case in chief, evidence which he could not have reasonably anticipated at the time when he allowed witnesses, members of his family, to remain in the courtroom. Under Civil Rule 43.09, the judge has both the duty and the discretion to *754waive the application of the rule where the circumstances so indicate, and this was obviously such a ease.
“As the cases in the annotations demonstrate, trial courts have very properly been given wide latitude in exercising their discretion in applying this Rule. This is in accord with the policy of the Civil Rules to ignore harmless error and not to permit technical violations to impede the achievement of substantial justice.” Bertelsman & Philipps, Kentucky Practice, 4th Ed. Civil Rule 43.09.
Where to apply the rule would defeat good trial practice and ultimate ascertainment of the truth, a technical violation such as occurred here should be waived. See Sanders v. Drane, Ky., 432 S.W.2d 54 (1968). In Moore v. Commonwealth, Ky., 323 S.W.2d 577 (1959), another murder case presenting similar problems to this one, we held that the trial court applied the separation of witnesses rule in an abusive manner, and the same is true in this case.
Finally, the trial court should have granted a new trial based on Officer Gadberry’s post-trial affidavit. It significantly affected the credibility of critical evidence in this case. The Commonwealth in closing argument placed great emphasis on the importance of the evidence from Jay Gadberry, as an impartial witness and a Deputy Sheriff of Russell County at the time of his investigation of this prior incident. He emphasized the fact that Gadberry saw the bullet hole in that window, when such was not the case. RCr 10.02 provides for a new trial of a criminal case “for any cause which prevented the defendant from having a fair trial, or if required in the interest of justice.” It was an abuse of discretion to deny a new trial in the circumstances of this case.
Our Court has erroneously affirmed a situation where highly inflammatory evidence, either totally irrelevant or, at best, remotely relevant, was admitted over the vehement objection of the accused, where this was compounded by erroneously excluding evidence offered to contradict such evidence, and where this was further compounded by failing to grant a new trial when, by post-trial affidavit, a critical part of this prejudicial evidence was recanted.
II. PORTIONS OF THE APPELLANT’S RECORDED STATEMENT TO THE POLICE ERRONEOUSLY EXCLUDED
Over objection of defense counsel, the court allowed the Commonwealth to play a portion of an audio-taped statement to the police given by the appellant on the night of the occurrence with important portions excised in which the appellant told the officers about the decedent’s previous solicitations of other persons to murder the appellant. At page fifteen of the Commonwealth’s Brief the Commonwealth concedes that it was error to exclude this evidence. The Commonwealth quotes from Lawson, Kentucky Evidence Law Handbook (2d ed. 1984), § 8.00, Subpart D, wherein Lawson explains why evidence of this nature is admissible. The Brief states:
“[T]he Commonwealth believes the portion of appellant’s statement concerning threats and solicitations made by victim and Donna Janes should not have been excised from appellant’s taped statement.”
The Commonwealth then argues harmless error.
How harmless? A significant portion of the Commonwealth’s case was given over to showing that the appellant did not believe he was in danger from Joe Bigger-staff on the night this incident occurred, and to proving that the appellant concocted this story about the solicitation of his murder together with friends and family after the shooting occurred. Yes, these witnesses testified as to the same evidence that was excised from the tape, but the playing of the entire tape as given to the police officers only a few hours after the shooting incident and while in custody, would have served to prove appellant’s claims were not concocted later but were very much upon his mind at the time of the shooting incident. Further, the tape in its entirety would have materially changed the jury’s perception of the police interview.
*755It has been a long-standing principle of evidence law, now codified in Rule 106 of the Kentucky Rules of Evidence:
“When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.”
This case provides a prime example of the violation of this rule, wherein the trial court unfairly permitted the Commonwealth to use in evidence the inculpatory portions of the appellant’s recorded statement while excising the exculpatory portions.
III. ERRORS IN JURY SELECTION
There were three.
1)The first error was in calling a supplemental panel of jurors and merging them with the regular panel, unknown to defense counsel before the day of trial. This caused the defense to be unable in advance of trial to review the information on the jury qualification forms which are required by KRS 29A.070 and which must “be made available to parties or their attorneys of record” pursuant to subsection (7) of that statute. The opportunity to study the background of prospective jurors was vitally important in a high profile case of this nature. The procedure used violated RCr 9.30(l)(c), which states:
“When it appears that the names in the jury box are about to become exhausted, the judge may obtain additional jurors by drawing from the drum, or, with the consent of the parties, by ordering the sheriff or a bailiff appointed by the court to summon any number of qualified persons.”
In Rowe v. Commonwealth, Ky., 394 S.W.2d 751 (1965) and Bolen v. Commonwealth, Ky., 252 S.W.2d 423 (1952), we acknowledged that proper method for drawing additional jurors is only after the regular panel has been exhausted.
The trial judge’s position in this matter was that the jury panel had been supplemented sometime previously, and the new jurors added to the panel should be treated as part of the regular panel. But the facts are that the defense counsel, who had obtained the regular jury list and checked out their background material, had no opportunity to do so with these supplemental jurors. The court clerk claimed that the names of the supplemental jurors had been put in counsel’s “box” at the courthouse, but this was unsubstantiated, and defense counsel stated, categorically, he had no supplemental jury list, or jury qualification information pertaining thereto, until after voir dire was underway and these slips were then furnished to him during trial. He asked for a continuance, but was given only five to fifteen minutes to try to evaluate this information. In short, he appears to have been sandbagged. The violation of the procedural rule for using supplemental jurors was not just technical, but substantial.
2) The trial court took upon itself to automatically excuse two educators, school principals, from jury service, when neither claimed a statutory disqualification or substantial reason for being excused. One, who was excused during the jury selection process, stated there was no reason he could not serve. Excusing educators in these circumstances was reversible error.
3) Most importantly, defense counsel moved that all persons from the nearby Fruit of the Loom plant where Joe Bigger-staff and Donna Janes had worked (and Donna Janes still worked), who were acquaintances should be excluded for cause, but the trial court refused to exclude those who it viewed as only casual acquaintances, defined as persons who knew the victim or the principal prosecuting witness by name, and on a “hi and goodbye, and occasional joke” basis. It is true these friends and acquaintances answered affirmatively the “magic question” as to whether they could put aside their friendship and be impartial, but these jurors should have been excluded on grounds of implied bias regardless of their affirmative answers to the “magic question.” As we stated in Montgomery v. Commonwealth, Ky., 819 S.W.2d 713 (1991):
*756“[T]he ‘magic question’ does not provide a device to ‘rehabilitate’ a juror who should be considered disqualified by his personal knowledge or his past experience, or his attitude as expressed on voir dire. We declare the concept of ‘rehabilitation’ is a misnomer in the context of choosing qualified jurors and direct trial judges to remove it from their thinking and strike it from their lexicon.” Id. at 718.
Our level of sensitivity to the constitutional guarantee of a neutral jury should not rise and fall like a barometer. There is no excuse for seating a jury of friends and acquaintances of one side or the other, albeit the court views the friendship as casual. The cold fact is that after this trial Donna Janes would be returning to the Fruit of the Loom plant where these jurors, whom the trial court would not excuse for cause, would have to face her on a daily basis.
Jurors who knew the victim and the prosecuting witness, and in particular the prosecuting witness who is still their co-employee, can hardly be regarded as neutral jurors. There were eight persons in this category on the petit jury panel. Four were excused by peremptory challenges by the defense which exhausted peremptory challenges by doing so, but four served on the jury. One was later excused as an alternate, and three were still on the jury that convicted the appellant.
“It is the probability of bias or prejudice that is determinative in ruling on a challenge for cause.” Pennington v. Commonwealth, Ky., 316 S.W.2d 221, 224 (1958).
The Majority concludes Copley had “a fundamentally fair trial.” While I can appreciate a certain lack of sympathy for a person who engaged in a shootout in a shopping center parking lot, I am at a loss to understand the legal basis for concluding Copley received a “fundamentally fair trial.” This case should be reversed and remanded for a new trial, respecting Copley’s right to be tried according to law.
COMBS, J., joins this dissent.
LAMBERT, J., joins as to Point I.