¶1dissenting.
¶2I respectfully dissent from the majority opinion because it was not reversible error for the trial judge to admit hearsay evidence relating to the conduct of Barnes and it was not error to introduce evidence of his prior uncharged misconduct.
¶3Barnes was charged with the shotgun murder of his wife. His defense was that the shooting was accidental. There was a history of marital discord and violence.
¶4Although I can agree with some of the comments made in the majority opinion regarding hearsay evidence, I believe the affidavit evidence presented here falls clearly within an exception to the prohibition against hearsay. The philosophical basis for permitting hearsay under any circumstances is that in its search for the truth, the trial court should be allowed to consider certain forms of hearsay if there is a showing of necessity, that is that the evidence cannot be presented in a nonhearsay form. In this case, the affiant had been killed. In addition, hearsay evidence should be received only when it possesses the characteristic of trustworthiness. Here I believe both of these elements are obvious.
¶5It was not reversible error for the trial judge to admit hearsay evidence contained in an affidavit for a restraining order filed by the decedent two and a half years prior to her death. The affidavit had been filed by the victim in a dissolution of marriage action against Barnes and stated that he had on numerous occasions physically thrown her out of the house, hit her and threatened to shoot her. Cf. Scruggs v. Commonwealth, Ky., 566 S.W.2d 405 (1978) which held that the admission of prior threats depends to a large extent on the nature and circumstance of the case and rests in the discretion of the trial judge. This Court has held that the prosecution may admit into evidence criminal warrants which have a direct bearing on the appellant’s state of mind at the time of a homicide. See Matthews v. Commonwealth, Ky., 709 S.W.2d 414 (1985). Here the admission of the affidavit in support of a restraining order was competent and not remote in time. The evidence was admissible to show feelings between the defendant and the victim as well as to show the motive of the accused. Cf. Fleenor v. Commonwealth, 255 Ky. 526, 75 S.W.2d 1 (1934) which allowed the admission of prior threats which were made two and a half years before. Privitt v. Commonwealth, 271 Ky. 665, 113 S.W.2d 49 (1938) permitted evidence about threats that had been made four years prior to the homicide.
¶6*171It was not reversible error for the trial judge to permit the prosecution to introduce evidence of the defendant's prior uncharged misconduct. A witness testified about two instances in which she saw Barnes commit physical violence against the victim. The first event testified to by the witness occurred four years prior to the death and the second incident occurred seven years prior. Jones v. Commonwealth, Ky., 554 S.W.2d 363 (1977) held that all evidence which is pertinent to the issue and tends to prove the crime charged is admissible although it may also prove or tend to prove the commission of other crimes ... the fact that it may tend to prejudice the accused in the minds of the jurors is not a ground for its exclusion. Id. at 367.
¶7Evidence of admission of crimes other than the one charged is admissible if, (1) it is offered to prove motive, intent, knowledge, identity, plan or scheme or absence of mistakes or accident; (2) such evidence is relevant to the issue other than proof of a general criminal disposition, and (3) the possibility of prejudice to the accused is outweighed by the probative worth and need for the evidence. O’Bryan v. Commonwealth, Ky., 634 S.W.2d 153 (1982).
¶8In determining whether evidence of other acts is admissible, a balancing test must be used to determine whether the probative value of such evidence is outweighed by the potential for undue prejudice. Wonn v. Commonwealth, Ky.App., 606 S.W.2d 169 (1980); Cf. Huddleston v. Commonwealth, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988).
¶9The prior acts were similar to the instant offense because they were acts of violence directed at the same individual. The prior acts were also not too remote in time to be admissible. The evidence must be considered on a case by case basis. Scruggs, supra; Matthews v. Commonwealth, Ky., 709 S.W.2d 414 (1985). Here the uncharged misconduct was confined to attacks by the defendant on the victim and they covered a period of time immediately prior to and after their 1981 marriage.
¶10The trial judge did not commit reversible error in either instance and this Court should not second guess either the admissibility of the affidavit nor the testimony of the witness about prior misconduct.
¶11I would affirm the conviction in all respects.