The Ones Who Were Meant to Love You Will Stay

Here’s his information the article left out.

On March 19, 2006, at 10:35 p.m., police received a call reporting the death of Haitham Asad at the local convenience store he owned in Covington, Kentucky. Police found a .380 shell casing at the scene of the crime and determined Asad died from a gunshot wound to the head caused by a bullet fired from a .380 caliber gun.

Amanda Bishop testified she was walking towards the convenience store on the night of the murder to buy a soda when she heard raised voices and saw two men, one black and one white, in the store arguing with Asad. Bishop identified the black man, who was tall, had an afro and was wearing a black puffy jacket with fur on the hood, as Harris. She stated she knew Harris from the neighborhood and was certain he was the black man she saw in the store that night, arguing with and pointing a gun at Asad. At one point, Bishop testified, she heard Harris yell at Asad, “You owe me.” Bishop was unsure of the other man’s identity but suggested it may have been James Eckler, a man who often associated with Harris. (It was later determined, however, that it could not have been Eckler, who was serving time in jail the night of Asad’s murder.) Seeing the argument escalate, Bishop turned away to return home, at which point she saw a flash from the corner of her eye and heard a shot. Bishop later told the police she then ran straight home, but she testified at trial that she actually hid behind a nearby retaining wall with her coat over her head to avoid detection. From this position, Bishop claimed she saw the men run from the store, with Harris running across the street towards a residential area and the other man running up into the woods. During cross-examination, Bishop admitted she is agoraphobic, which causes her to become dizzy, disoriented and panicked in public places, and that she was on several medications in March of 2006.

Douglas Cornett, who also knew Harris, testified he saw a gold Pontiac he thought belonged to Harris in the area near the time of the murder, though Cornett never saw the driver of the car. Shortly after seeing the car, Cornett was walking near the convenience store and heard popping noises. Cornett stated he then saw two people running from the store and, though he could only make out their silhouettes, he believed the very tall man with the bushy hair was Harris.1 Cornett did not report what he saw until he heard Crime Stoppers was offering a reward for information; Cornett was paid $700.00 for his information. On cross-examination, Cornett admitted he often provides the police with information on crimes in exchange for money. He further admitted he was heavily using drugs in March 2006 and changed his story several times in this case. When asked about the different versions of the story, Cornett acknowledged that he had lied to police in earlier conversations.

Steven Lowe, an inmate of the Kenton County jail, testified Harris confessed to him that he had killed Asad. Lowe claims he was serving food on the ninth floor of the jail when he saw Harris in one of the temporary holding cells near the deputy’s station. Lowe said that, though he had not seen Harris in a couple of years, they knew each other from the neighborhood. Lowe claims he asked Harris why he was in jail, to which Harris replied he had accidentally shot a store clerk during a robbery. Lowe told police this conversation took place in September 2008. In exchange for this testimony, the United States Attorney’s office agreed to recommend a sentence of less than ten years on federal charges pending against Lowe, which was less than the statutory minimum; Lowe would have otherwise faced a possible life sentence. Harris testified he had never before met or spoken with Lowe. Kim Roberts, a police officer who worked on housing inmates at the Kenton County jail, testified that, contrary to Lowe’s testimony, neither Harris nor Lowe was in the Kenton County jail in September 2008, both having been transferred to other facilities much earlier in the year. She testified that both men were housed on the ninth floor in December 2008. Records for the jail showed Harris was regularly housed on the tenth floor of the jail and was only on the ninth floor for one day in 2006 and for one day in 2008. There was no record of Harris ever being in the temporary holding cell near the deputy’s station on either of those days, though Roberts testified it was possible Harris could have been placed there briefly during the move without it being noted in the record. At trial, Harris was allowed to cross-examine Lowe and Roberts extensively. He raises no issue on appeal about either witness.

Covington police brought Harris in for questioning on March 23, 2010, four days after the shooting, and contemporaneously obtained and executed a search warrant at his house. Harris cooperated with the police during the interview, including telling them where his .380 handgun was located in the house. The results of the search included the .380 handgun, a clip containing .380 ammunition, and a box of .380 bullets. During his interview with police, Harris changed his story about his whereabouts on March 19 several times. Eventually he claimed he spent the evening of Asad’s murder eating dinner with his brother and girlfriend, stopping by a gas station to buy gas and donuts, dropping off his brother at their mother’s house and then returning home, where he remained the rest of the night. Harris said he did see the police lights at the convenience store that night but assumed the store had been robbed again. Harris claimed he did not know Asad had been killed until the following day, when he heard the news from a friend. Harris’s girlfriend testified she and Harris spent the evening just as Harris indicated, though she did smoke a blunt and fall asleep at some point during the night.

Video surveillance footage from a local Shell station, whose timestamp was accurate within three to five minutes, shows Harris, wearing a dark puffy jacket with a fur-lined hood, at the gas station from approximately 10:09 p.m. to 10:18 p.m. the night of Asad’s murder. Harris never volunteered this information to the police but, when confronted with the proof, conceded he did visit the Shell station that night near the time of the murder.

At trial, the jury heard testimony from Bishop, Cornett and Lowe as well as Asad’s wife, Tina Asad. She testified about her husband, his convenience store business and that it was not unusual for him to borrow around $300.00 from her when he was having difficulty meeting the rent payment for his store. She also testified that three or four days prior to the shooting he asked to borrow $800.00, but he did not say why he needed the money.

Harris testified in his defense and denied any involvement in the murder of Asad. He claimed he often frequented the convenience store, considered Asad a friend and was saddened to hear of his death. Harris reiterated that he spent the evening having dinner and buying gas and donuts with his brother and girlfriend, driving his brother home and then returning home with his girlfriend, where he played video games the rest of the night. Harris admitted he went to the Shell station to visit with friends and buy cigarettes but claimed he went directly home after he left the gas station.

There were no prints on the .380 handgun found in Harris’s home. The police located another .380 handgun, which belonged to Harris, in the Cincinnati Police Department property room. According to Harris, he legally purchased both guns several years earlier and gave this second gun to his then-fiancee. Both guns were tested and it was determined that neither of the .380 guns was the murder weapon. Additionally, Harris’s prints were not among those lifted from the scene, but there was gunshot residue on the sleeve of Harris’s dark puffy jacket with a fur-lined hood, which he wore to the interview with police.

In Harris’s first two trials the juries deadlocked, and Harris was tried for a third time on November 2—4, 2010. This third jury found Harris guilty of murder, and in accordance with the jury’s recommendation, the trial judge sentenced him to forty years in prison. On appeal, Harris raises the previously noted claims of error. We begin with his first claim, that the trial court erred by admitting the two .380 handguns Harris owned, which were similar to the murder weapon but were not used to commit the crime.

ANALYSIS

This Court reviews allegedly erroneous evidentiary rulings for abuse of discretion. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999). The test for an abuse of discretion “is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Id. Absent such abuse, this Court will not disturb a trial court’s decision to admit evidence. Anderson v. Commonwealth, 231 S.W.3d 117 (Ky.2007). If the trial court errs, this Court may still determine that the error is harmless pursuant to RCr 9.24 and the standards set forth in Winstead v. Commonwealth, 283 S.W.3d 678 (Ky.2009).

I. Guns That Were Not Used in the Crime Were Not Admissible But the Error Was Harmless.

The trial court admitted the two .380 handguns owned by Harris on the grounds that they tended to show Harris preferred and was familiar with this type of weapon. Testing showed and it was stipulated at trial that neither weapon was used in the murder of Asad. Harris objected in the trial court to the admission of these guns, claiming they were irrelevant and prejudicial, a position he maintains on appeal. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Kentucky Rule of Evidence (KRE) 401. Evidence that is not relevant is not admissible. KRE 402. Evidence that is relevant may still be excluded where the danger of undue prejudice substantially outweighs its probative value. KRE 403.

Weapons may be admitted where there is a possible connection to the crime but that connection is not definitively established. In Sweatt v. Commonwealth, 550 S.W.2d 520 (Ky.1977), the Court admitted a gun found in the defendant’s bedroom that matched the victim’s description of the gun used in the crime, though the gun could not definitely be identified as the weapon used in the crime. In Barth v. Commonwealth, 80 S.W.3d 390 (Ky.2001), the Court admitted wooden window slats whose size and shape matched marks on the victim’s body, though the victim was blindfolded during the attack and could not identify the weapons used. And in Grundy v. Commonwealth, 25 S.W.3d 76 (Ky.2000), the Court admitted a piece of concrete the victims claimed to have found near the scene of the crime, though it could not be conclusively ascertained the concrete was used in the crime. In all of these cases, it was possible the weapon was used in the crime and there was sufficient identification and nexus to justify admitting the weapon.

Weapons that are known to have no connection to the crime, however, are generally not admissible. Major v. Commonwealth, 177 S.W.3d 700 (Ky.2005). In Major, the defendant killed his wife with a pistol but the pistol was never recovered. The trial court permitted the Commonwealth to introduce a handgun, a shotgun and a rifle that were owned by the defendant but were not used in the crime. This Court reversed, holding the guns were not admissible “absent evidence that any of the firearms were involved in the murder.” Id. at 710. Courts in other jurisdictions have also held that weapons not involved in the crime are inadmissible. Similar to this case, in Commonwealth v. Marshall, 743 A.2d 489 (Pa.Super.Ct.1999), the Pennsylvania Superior Court held the defendant’s nine millimeter handgun, which was the same caliber as the murder weapon, was not admissible because it was not used in the commission of the crime. The court explained that in cases where it is shown the weapon was not used in the crime, the weapon is irrelevant and, consequently, inadmissible. Id. at 492. The Marshall court noted, “the only purpose that was served by the admission of the handgun was to prejudice appellant.” Id. at 494. The California Supreme Court has also held that weapons not used in the commission of the crime are not admissible, even where the weapon is of the same make or model as that used in the crime. People v. Riser, 47 Cal.2d 566, 305 P.2d 1 (1956) overruled inpart on other grounds by People v. Morse, 60 Cal.2d 631, 36 Cal.Rptr. 201, 388 P.2d 33 (1964). In Riser, the victims were killed with a .38 revolver, which was never recovered, and the state sought to introduce two .38 caliber guns recovered from the defendant. Id. The California Supreme Court held the guns were inadmissible because it was determined the bullets found at the scene could not have come from those guns. Id. at 577, 305 P.2d 1. The Riser Court explained it would be error to admit such evidence because it “tends to show, not that [the defendant] committed the crime, but only that he is the sort of person who carries deadly weapons,” which is not valid grounds for admission. Id. Similarly, in Green v. State, 27 So.3d 731 (Fla.Dist.Ct.App.2010), the victim was shot with a .380 caliber handgun and the police recovered three .380 caliber handguns from the defendant’s home. Id. Because forensic testing showed that none of the guns was the murder weapon, the Court held the guns were inadmissible. Id.