dissenting.
I must respectfully dissent.
I am persuaded that the proper standard of review of the CR 60.02(f) motion includes a determination of whether there was a fundamental miscarriage of justice in the trial and conviction of James E. Brown, III for wanton murder. The majority of this Court focuses solely upon the sufficiency of other incriminating evidence to uphold the conviction. However, this approach fails to assess the probable impact of the recanted testimony of Dr. Robert Shaler upon the constitutional right of Mr. Brown to a fair trial. I am convinced that James Brown suffered substantial injustice of an “extraordinary nature” as contemplated by CR 60.02(f) and the judgment of conviction should be vacated.
The trial court characterized the evidence against James Brown as “overwhelming” and concluded that the exclusion of Dr. Shaler’s testimony “would in all probability not have affected the verdict of the jury.” The basis of this determination by the trial court was that Mark Brown, James Brown’s brother, was convicted on the same testimony introduced in James Brown’s trial without the testimony of Dr. Shaler. The exception the trial court found was that “in the Mark Brown case the admissions of Mark Brown were introduced in full whereas in the James Brown case the admissions were limited to Mark Brown’s inability to find the body....”
The trial court was clearly erroneous in this characterization of the evidence against James and Mark Brown. In Mark Brown’s appeal of his conviction, this Court noted that the evidence against Mark Brown was “abundant.” Brown v. Commonwealth, Ky., 555 S.W.2d 252, 256 (1977). We made no such determination in our decision in James Brown’s case. Brown v. Commonwealth, Ky., 639 S.W.2d 758 (1982). Most importantly, “Mark was done in by the testimony of Robert Collins, who said that Mark had confided in him and admitted that he and Jim had killed Dudley.” Brown v. Commonwealth, Ky., 639 S.W.2d 758, 759 (1982). There was no such testimony in James Brown’s case.
Both the majority of this Court and the trial court refer to the testimony of Robert Collins as additional evidence against James Brown. Collins attributed a statement to Mark Brown that implicated James Brown in the murder. However, this statement was clearly inadmissible, and we so indicated in our original opinion: “This evidence, of course, was not admissible against Jim.” Brown v. Commonwealth, Ky., 639 S.W.2d 758, 759 (1982).
The Court of Appeals merely relied upon this Court’s earlier determination that there was sufficient evidence to sustain James Brown’s conviction without Dr. Shaler’s testimony. Likewise, the majority of this Court places great emphasis on our previous determination of the sufficiency of the evidence against James Brown: “In discussing the evidence, the Court noted the evidence summarized above, without Dr. Shaler’s testimony, Vas sufficient to justify the conviction of Jim Brown_’” Majority Opinion at p. 361.
The question now before us is no longer the sufficiency of the evidence absent Dr. Shaler’s testimony or whether “there was ample circumstantial evidence in the record on which the jury could have based its verdict.” Majority Opinion, p. 361 (emphasis added). Rather, the question is the likeli*364hood that this highly persuasive scientific evidence at the original trial changed the result. Our previous determination regarding the sufficiency of the evidence means only that if James Brown’s conviction were vacated, there is sufficient evidence for him to be retried.
The survival of the common law writ of coram nobis for relief in a criminal case through civil code provisions was considered by this Court in Anderson v. Buchanan, 292 Ky. 810, 168 S.W.2d 48 (1943). In that case, the Court reviewed the denial of a motion presented by one of'three men sentenced to die from the infamous Marian Miley murder trial in the Fayette Circuit Court. This Court determined the petition disclosed “that there may have been a miscarriage of justice.” Id., 168 S.W.2d at 54.
At the trial, two of the accused testified that movant Anderson participated in the brutal murders of a young Lexington Country Club golf pro and her mother during the course of a burglary of their apartment at the club. In a deposition filed with the motion seeking a writ of coram nobis, Penney, one of the condemned men, claimed to have taken and used Anderson’s automobile on the fateful night without Anderson’s knowledge or consent. Penney testified that in perpetrating the crime he was accompanied by a man named Stewart, not by Anderson as he had previously sworn at the trial. Another condemned man, Baxter, avowed in his deposition accompanying the motion that he could not say it was Anderson he saw with Penney the night of the murder, contradicting his positive identification of Anderson at trial.
Apart from the positive identification and implication of Anderson in the commission of the murders by the convicted perpetrators, Penney and Baxter, the remaining evidence bears a remarkable resemblance to the other incriminating evidence against James E. Brown, III:
Anderson: The pistol from which the fatal bullet was fired belonged to Anderson.
Brown: The victim was killed by two simultaneous shotgun blasts from Federal brand shells; Brown owned a double-barrelled shotgun with a defective safety capable of firing simultaneous shots and Federal shells were found at the home of Mr. Brown’s mother, where Mr. Brown lived.
Anderson: A witness identified Anderson as looking for Baxter on the fatal night.
Brown: The victim was last seen alive in the home of Mark Brown, where both Mark and James Brown were present.
Anderson: Anderson and Penney were sighted together in Anderson’s car which Anderson was seen driving on the night of the murders.
Brown: On two different occasions, the victim accompanied Mark Brown in an automobile owned and driven by James Brown; tire prints near the scene were similar to the tires of this automobile.
Anderson: Anderson did not take the stand to deny any of the testimony against him.
Brown: Brown did not take the stand to deny any of the testimony against him.
The trial court erroneously characterized this evidence against James Brown as “overwhelming.” Conversely, the majority of the Anderson Court characterized the sufficiency of the evidence .to convict in that case as “problematical” and held:
The court in which a conviction was had has discretion to grant the writ where it appears that but for alleged false testimony or undiscovered evidence of such á conclusive character that the verdict most probably would not have been rendered and there is a strong probability of a miscarriage of justice unless the process be granted_
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The question of the guilt or innocence of the accused is not a necessary subject of the inquiry.
Anderson v. Buchanan, 292 Ky. 810, 168 S.W.2d 48, 53-54 (1943).
I do not believe that a jury would have found James Brown guilty of murder beyond a reasonable doubt without the following testimony of Dr. Robert Shaler:
Q: The blood from the suspect [James Brown] matched the blood on the boots?
*365A: No sir. The blood from the victim matches that which is on the boot, as far as the GM blood typing is concerned.
Q: From your GM blood typing sir, was it possible that the blood on the boot was the blood of James Brown, the defendant?
A: It is impossible.
Q: Is it possible that it was the blood of Bryant Dudley, the victim?
A: It is possible.
Q: What percentage of the population has the blood consistent with the blood of the victim?
A: ... [T]his particular blood occurs in about 4.6, approximately 4.6 percent of the population.
An “aura of special reliability and trustworthiness,” surrounds scientific or expert testimony in the eyes of a jury, especially within the context of a criminal trial. Hester v. Commonwealth, Ky., 734 S.W.2d 457 (1987) (citation omitted). Dr. Shaler positively excluded James Brown as the source of the blood stain on James Brown’s suspicious boot and, as the Majority Opinion fails to mention, just as positively identified the victim, Bryant Dudley, as one of about four sources in a hundred candidates. For this jury in this trial, there were only two relevant sources of the relatively rare blood: James E. Brown, III and Bryant Dudley. According to Dr. Shaler, it was impossible that the blood came from James Brown and the odds that it came from Bryant Dudley were high. Dr. Shaler’s unequivocal exclusion of James Brown as the blood source provided a compelling link connecting James Brown to the brutal murder of Bryant Dudley.
I strongly disagree with the majority that “it is clear that Dr. Shaler’s testimony was not the key piece of evidence against Appellant. Indeed, it appears not to have been an important item of evidence.” On appeal of James Brown’s conviction, this Court equated the evidence at issue here, Dr. Shaler’s testimony regarding the blood on James Brown’s boots, to testimony in Mark Brown’s trial that Mark Brown had admitted he killed Bryant Dudley:
Mark was done in by the testimony of Robert Collins, who said that Mark had confided in him and admitted that he and Jim had killed Dudley. This evidence, of course, was not admissible against Jim. In Jim’s trial, on the other hand, there was expert evidence that blood found on Jim’s boots was not his blood but could have been Dudley’s. That evidence was not introduced in Mark’s trial.
Brown v. Commonwealth, Ky., 639 S.W.2d 758, 759 (1982). Evidence equivalent to an admission of guilt is by no means unimportant.
I also disagree with the majority’s conclusion that Dr. Shaler’s role in the conviction of James Brown was not significant because neither his counsel nor the prosecutor referred to the witness or his testimony in closing argument. Throughout these proceedings, James Brown and his counsel have treated the testimony as significant. At trial, counsel for James Brown requested a continuance when Dr. Shaler was called as the last witness for the prosecution. James Brown’s counsel challenged this evidence in the former appeal. Indeed, the principal contention urged for reversal of the conviction in the earlier appeal focused on the admissibility of this evidence. Counsel for James Brown even sought a writ of certiorari from the United States Supreme Court on this very issue. Brown v. Commonwealth, 460 U.S. 1037, 103 S.Ct. 1428, 75 L.Ed.2d 788 (1983).
In closing argument, defense counsel strategically avoided a direct attack on the “blood” evidence:
[Tjhen one other thing, blood, that seems to be the big thing in this trial, the blood. Now if Jimmy Brown killed a man with a shotgun, drug his body up over an embankment, wouldn’t there be more blood on him than the little bit on his shoes?
On the other hand, the prosecutor skillfully pointed to this testimony in his closing:
Ladies and gentlemen, the reason he [James Brown] wanted to trade boots was because his boots had Bryant Dudley’s blood on them....
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*366There is no use mentioning all of the other one out of 25 people [approximately 4.6% ] who had the blood that Bryant Dudley had was found on Jim Brown’s boots.
For the majority to conclude that the erroneous expert testimony of Dr. Shaler, offering the only direct evidence connecting James Brown to the murder of Bryant Dudley, was an insignificant factor in his conviction substitutes judicial clairvoyance for a fair and impartial trial by jury on reliable evidence.
LAMBERT and STUMBO, JJ., join this dissent.