author: Justice KELLER.

text:
    Mark A. BRATCHER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2002-SC-0306-MR.
    Supreme Court of Kentucky.
    Dec. 16, 2004.

      Emily Holt, Dept, of Public Advocacy, Frankfort, for Appellant.
    Gregory D. Stumbo, Atty. Gen., Anitria M. Alo, Asst. Atty. Gen., Frankfort, for Appellee.
   Opinion of the Court by

Justice KELLER.

I. INTRODUCTION

Appellant was convicted of the intentional murder of Susan Andrew. The jury found the existence of an aggravating circumstance, specifically that the murder was committed for profit, and Appellant was sentenced to life without parole. On this appeal, Appellant raises twelve claims of error. Finding no merit in any of Appellant’s allegations of error, we affirm his conviction.

II. FACTUAL BACKGROUND

Appellant met Susan Andrew while both were working at an Army Hospital in 1992. The two became friends and engaged in an intermittent sexual affair over the next eight years. During this time, Appellant experienced financial difficulties and took steps toward declaring bankruptcy. Ms. Andrew gave Appellant several monetary gifts and named him as a beneficiary on her life insurance policy, although Appellant testified that he was unaware of his status as a beneficiary.

On Thursday, August 26, 1999, Appellant failed to show up at Ms. Andrew’s home in Louisville for a scheduled dinner date. Ms. Andrew was upset and told some co-workers that she was no longer going to give Appellant money. Appellant testified that he called Ms. Andrew on Friday morning to apologize, and that she was abrupt and angry with him. Appellant spent the rest of Friday and part of Saturday helping his former wife and their children move.

Appellant was also dating another woman, Melissa Hudson, who lived in Radcliff, Kentucky. In the afternoon of Saturday, August 28, 2000, Ms. Hudson found a cell phone bill in the trash at Appellant’s home. She took the cell phone bill and noticed that Appellant had been frequently calling a Louisville phone number, which belonged to Ms. Andrew. Ms. Hudson called the number several times, and then she called Appellant. This touched off a flurry of phone calls among Appellant, Ms. Andrew, and Ms. Hudson over the next few hours.

Appellant’s brother, Phillip Bratcher, testified extensively at trial as to what happened that night. Appellant drove his truck to Phillip’s trailer in Kokomo, Indiana, arriving at approximately 8:30 p.m. Appellant talked on his cell phone some. The brothers then went to a gas station to get gas for Appellant’s truck and then returned to Phillip’s trailer. Appellant talked on his cell phone some more. He then asked Phillip to accompany him to Louisville to mediate the conflict between him and Ms. Andrew, and Phillip agreed to go. They left the trailer and took a car that was parked across the street from the trailer. The testimony at trial did not establish who the car belonged to or how Appellant, who normally drove a truck, obtained the car. Phillip’s testimony, however, indicated that Appellant wanted to drive the ear so that the loose items in the bed of his truck would not get lost during the drive. The drive to Louisville took approximately three hours, during which Appellant talked on his cell phone almost the entire time. When they arrived in Louisville, Appellant parked the car in a lot behind Ms. Andrew’s house. When he exited the car, Appellant, who was a physician’s assistant in the military, was carrying his medic’s bag. He used a key to unlock the back door to Ms. Andrew’s house, which he and Phillip then entered.

Appellant went to get Ms. Andrew while Phillip waited in the kitchen. When Appellant returned, Ms. Andrew greeted Phillip, and then she and Appellant began to argue. When Appellant attempted to hug Ms. Andrew, she pushed him away and accused him of lying. The argument, which involved allegations that Appellant was lying about another woman, escalated with Appellant pushing Ms. Andrew. She became extremely agitated and acted as though she were going to hit Appellant, so Phillip intervened and physically restrained her.

When Phillip had calmed Ms. Andrew down, Appellant told him to leave the house and wait outside. Phillip went to the car and waited for his brother. A short time later, Appellant came back to the car. He told Phillip that he and Susan had reconciled, and that he and Phillip could return to Indiana. They drove back to Phillip’s trailer, where Appellant then dropped him off and drove away in the car. About thirty minutes later, Phillip heard a noise, looked outside, and saw that Appellant’s truck was gone.

At about 9:30 a.m. the next morning, Appellant called Phillip to tell him that he was home. Appellant spent most of the day with Ms. Hudson, but he also placed several calls to Ms. Andrew, leaving messages asking whether she would meet him. He also called Ms. Andrew’s daughter and asked her whether she knew where her mother was.

Ms. Andrew was later discovered dead in her house. She had been beaten and strangled. Police estimated that she had died around 2:00 a.m. on Sunday, August 29. The police investigation quickly focused on Appellant and his brother. When the police questioned Phillip, he told them that he and Appellant had stayed in Indiana on August 29. DNA analysis later revealed that a chunk of skin found under Ms. Andrew’s fingernail belonged to Phillip, and he was arrested and charged with murder. Phillip entered into an agreement with the Commonwealth’s Attorney, where he would testify against his brother in exchange for the Commonwealth’s promise not to seek an aggravated penalty against him

At trial, Phillip testified that when they returned to the trailer on the night of the murder, Appellant had instructed him to tell anyone who asked that they had been at the trailer in Indiana all night. Phillip also testified that Appellant had shown Phillip a list of times, including when he had arrived at the trailer and when they had fallen asleep, to remember. Phillip further testified that Appellant had told him to stick to their story or risk being blamed for the murder. Finally, he claimed that after his arrest, Appellant had asked him to take the blame for the murder so that Appellant could collect on Ms. Andrew’s life insurance policy.

Appellant also testified at trial, but his account of the events of August 28-29, 2000, differs significantly from this brother’s. He claimed that he had spent the night at his brother’s trailer, and that he fell asleep sometime after 1:00 a.m. on August 29, leaving his brother awake and watching television. He woke around 5:30 a.m. and drove back to Kentucky. He also testified about his brother’s interest in magazines about martial arts, soldiers of fortune, and private investigation. He also claimed that Ms. Andrew had made a key to her house available to him, but he had not picked it up before she was killed, and that in the past, he had given his brother directions to Ms. Andrew’s house. He claimed that his brother committed the murder.

Appellant was tried jointly with Phillip. The jury convicted Phillip of Intentional Murder, and he was sentenced to twenty-five years under an agreement with the Commonwealth. The jury convicted Appellant of murder and found as an aggravating circumstance that he committed the offense for profit. Appellant was sentenced to life in prison without the possibility of parole. He now appeals his conviction as a matter of right.

III. ANALYSIS

Appellant raises twelve separate issues. We address each issue in turn.

A. Separate Trials

Appellant argues that he should have been tried separately from his brother because their defenses were antagonistic. As a general rule, persons jointly indicted should be tried together. We have expressed a strong preference for such joint trials. The decision as to severance is “matter of judicial discretion.” We will not reverse on appeal for failure to sever “unless we are clearly convinced that prejudice occurred and that the likelihood of prejudice was so clearly demonstrated to the trial judge as to make his failure to grant severance an abuse of discretion.”

Appellant argues that the trial court abused its discretion in this case because his brother’s defense was antagonistic to his own, i.e., they blamed each other for the crime. While we have noted that “[i]n order to justify the granting of a severance, it must appear that the defendants have antagonistic defenses, or that the evidence as to one defendant tends directly to incriminate the other,” we have also noted that “the allegation that there are antagonistic defenses is only one of the factors for the trial judge to consider.” In fact, in a case where one defendant denies any involvement in the crime and places all the blame on the other, that the only claim of prejudice is that the defendants pointed the finger at each other may actually justify joinder:

“[Njeither antagonistic defenses nor the fact that the evidence for or against one defendant incriminates the other amounts, by itself, to unfair preju-dice_ That different defendants alleged to have been involved in the same transaction have conflicting versions of what took place or the extent to which they participated in it, vel non, is a reason for rather than against a joint trial. If one is lying, it is easier for the truth to be determined if all are required to be tried together.”

Appellant attempts to show other prejudice by arguing that Phillip’s lawyer acted, in effect, as a second prosecutor, out-prosecuting the Commonwealth’s attorney and unfairly tainting the entire trial. Appellant specifically points to Phillip’s attorney’s cross-examination of Appellant. But in reality, this is simply a reiteration of the antagonistic defenses claim in that Phillip’s attorney was trying to show Appellant had committed the murder instead of his client.

Though “[tjhere may be some inherent disadvantage to one defendant if he is required to be tried jointly with a code-fendant,” the existence of antagonistic defenses alone, absent some other showing of prejudice, is not enough to require reversal. Because Appellant has failed to show any prejudice beyond the mere existence of antagonistic defenses, we find that the trial court did not abuse its discretion in allowing Appellant and his brother to be tried together.

B. Right to Confrontation

Appellant also claims that the trial court denied his right to confrontation in three separate instances: (1) when the trial court did not allow Appellant to play a videotape of a suppression hearing where Phillip lied regarding police coercion, (2) when the trial court refused to allow introduction into evidence of a letter Phillip wrote to Appellant while incarcerated, and (3) when the trial court did not allow Appellant to cross-examine Phillip regarding post-traumatic stress disorder.

1. Videotape of Suppression Hearing

During Phillip’s direct testimony at trial, he admitted that he had lied during a suppression hearing in which he claimed that the police misled him in order to get him to provide them with a DNA sample. When he cross-examined Phillip, Appellant wanted to use the videotape as evidence of a prior inconsistent statement, i.e., to show to the jury Phillip’s mannerisms when he was lying, specifically how calm he was. The trial court, however, refused to allow Appellant to use the videotape, noting that because Phillip had already admitted that he had lied, the videotape contained no prior inconsistent statement and would likely confuse the jury.

Appellant claimed at trial that this was a prior inconsistent statement and now claims that the trial court interfered with his right to confrontation by not allowing the introduction of Phillip’s prior statement. Neither argument is well taken, however. First, Phillip’s statements were not prior inconsistent statements as contemplated by KRE 613 because he had already admitted that he lied at the prior suppression hearing. Playing the videotape would have had no impeachment value and would simply have been cumulative.

As to Appellant’s claim that the trial court interfered with his right to confrontation by not allowing him to use the videotape during cross-examination of Phillip, he argues that “it was imperative that the jury observe both the extent to which he concocted a story in the suppression hearing and how calm and collected he was while lying on the stand.” Basically, Appellant claims that introduction of the tape would have enabled the jury to compare Philip’s demeanor during the suppression hearing, where he gave testimony under oath that he later admitted was a lie, with his demeanor during his testimony at trial. We find no merit in this argument. We fail to see how this was a denial of the right to confrontation. “[Tjrial courts retain broad discretion to regulate cross-examination. ‘Defendants cannot run rough-shod, doing precisely as they please, simply because cross-examination is underway. So long as a reasonably complete picture of the witness’ veracity, bias and motivation is developed, the judge enjoys power and discretion to set appropriate boundaries.” ’ Appellant was able to cross-examine Phillip extensively, and the jury had already seen Phillip admit he had previously lied under oath in this case. The jury was able to observe Phillip’s demeanor during trial, evaluate his credibility, and weigh his testimony accordingly. The trial court did not abuse its discretion in refusing to admit the videotape.

2. Phillip’s Letter to Appellant

Appellant also wanted to introduce part of a letter that his brother had written to him while they were both incarcerated. The relevant portion of the letter reads:

What I’m going to write has to stay between us regardless of who may ask you anything about anything okay? First Butler [Assistant Commonwealth Attorney] says to my lawyers if I give them a story they can believe he’ll give me 25 years. But if I don’t get up and testify the same way in court he’ll give me life without parole.... He says if I don’t give a statement than I’ll die and you’ll walk.

The trial court refused to allow the admission of this letter on the grounds that it did not represent the deal that was finally reached with the Commonwealth and because this letter constituted negotiations leading up to Phillip’s deal with the Commonwealth, which are inadmissible under KRE 410.

The trial court’s ruling in this regard, i.e., that the letter was a statement made during plea negations, is mistaken. The statement that Appellant sought to introduce was made during communications between Appellant and Phillip, not Phillip and the prosecutor, thus the statement was not covered by KRE 410. Only the statements made during negotiations are protected; that Phillip then chose to disclose those negotiations (and statements made during those negotiations) to a third-party does not then bring the exchange with the third-party into the realm contemplated by KRE 410. And, it is apparent that the statements do tend to show that Phillip was under pressure to concoct a story in return for a reduced sentence; thus the letter was evidence of his bias and motive to lie. As the Supreme Court has noted, “the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.”

This does not, however, mean that Appellant’s right to confrontation was violated. During cross-examination, Appellant was able to question Phillip extensively about the nature of his deal with the Commonwealth (wherein the Commonwealth agreed not to file aggravated factors, i.e., seek the death penalty, in exchange for Phillip agreeing to be a witness). Appellant even went so far as to have Phillip read the entirety of the deal into evidence. The Commonwealth had already elicited testimony from Phillip that he had previously lied in court, and Appellant questioned Phillip as to his willingness to lie in court again by asking whether Phillip would “do anything” to avoid the death penalty. Appellant’s lawyer stated during a bench conference that he intended to introduce the letter at this point in his questioning.

However, once the essential facts constituting bias have been admitted, a trial court “may, of course, impose reasonable limits on defense counsel’s inquiry into the potential bias of a prosecution witness, to take account of such factors as ‘harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that [would be] repetitive or only marginally relevant....” ’

Thus, to paraphrase Wearer, the fact that the trial court allowed Appellant to question Phillip about the specifics of his deal with the Commonwealth, together with the fact that testimony concerning his previous lying had already been admitted, “gave the jury enough information to permit a fair appraisal of [Phillip’s] possible bias. The trial judge’s ruling was a reasonable limitation on this exploration into [Phillip’s] motive or bias.” The exclusion of the evidence on an incorrect ground, i.e., KRE 410, when it could have excluded the evidence for other reasons, i.e., “broad discretion to regulate cross-examination,” does not mean that Appellant’s right to confrontation was violated.

3. Post-Traumatic Stress Disorder Evidence

Appellant also argues that the trial court violated Appellant’s right to confrontation when it limited his ability to cross-examine Phillip as to his alleged post-traumatic stress disorder. The trial court allowed Appellant to question Phillip as to mental lapses, whether he was receiving disability benefits, and whether he was taking medication at the time of the murder. The trial court prohibited Appellant from asking questions specifically about post-traumatic stress disorder, noting the Appellant had failed to establish any foundation, in the form of medical records or medical testimony, for such a line of questioning. This falls squarely within the trial court’s “broad discretion to regulate cross-examination” and does not constitute a violation of Appellant’s right to confrontation.

C. Speedy Trial

Appellant argues that his right to a speedy trial under the Sixth Amendment was violated by a lengthy delay between his indictment and trial. In evaluating a claim of a speedy trial violation, we consider four factors: (1) the length of the delay, (2) the reasons for the delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) prejudice to the defendant. Appellant filed a motion for a speedy trial on July 7, 2000, thus it is clear that he asserted his right. Also, the length of the delay between indictment and trial — eighteen months — is presumptively prejudicial and weighs against the Commonwealth. We note, however, that this finding that the length of delay was presumptively prejudicial does not preempt application of the fourth factor: “ ‘[Presumptive prejudice’ does not necessarily indicate a statistical probability of prejudice; it simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker enquiry.”

The trial was originally set for May 7, 2001, and was delayed only because the trial court granted Phillip’s January 11, 2001, motion to reassign the trial date, in essence a motion for a continuance. In the motion, Phillip requested the continuance because (1) he claimed he needed more time to have expert testing done on the biological samples that the Commonwealth had taken, (2) he anticipated the necessity for additional hearings in the case given the complex legal issues involved, and (3) his attorney had already scheduled a vacation the week of trial, reservations for which had been made before the trial date had been set. In granting the motion for a continuance, and thus setting the trial on its ultimate date of November 2, 2001, the trial court noted that the Commonwealth objected to continuing the trial date. We can only conclude that the Commonwealth did not cause the delay, but then neither did Appellant. Instead, the delay was caused by Appellant’s codefendant on whose motion the continuance was granted. As such, this factor weighs against neither the Commonwealth nor Appellant.

Thus we are left to evaluate whether Appellant suffered any prejudice. Under Barker, “[prejudice ... should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect.” Those interests include the following: preventing oppressive pretrial incarceration, minimizing anxiety and concern of the accused, and limiting the possibility that the defense will be impaired. Though Appellant’s reply brief claims that he was prejudiced by “the trauma cause[d by lengthy incarceration], and the possibility that his defense was impaired,” he fails to show such prejudice. Conclusory claims about the trauma of incarceration, without proof of such trauma, and the possibility of an impaired defense are not sufficient to show prejudice. As we noted above, a long delay, while creating “presumptive prejudice” sufficient to continue the Barker analysis, does not necessarily create real prejudice to a defendant. Given the complexity of the case, wherein Appellant was accused of committing murder for profit and was possibly facing the death penalty, eighteen months was not so oppressive an incarceration to automatically weigh this factor against the Commonwealth. Because Appellant has failed to show that the delay caused him anxiety and concern or that it impaired his defense, we cannot weigh this factor in his favor. Thus, we conclude that Appellant’s right to a speedy trial was not violated.

D. Inconsistent Removal of Prospective Jurors for Hardship

During voir dire, the trial court removed eight jurors because their employers did not pay them for the missed days, three jurors who were “stay-at-home” mothers and the sole care providers for their children, and one juror who worked for his brother and brought a letter from the brother stating that his small family-owned business would suffer from the juror’s absence. The trial court denied Appellant’s motions to remove four jurors, three of whom were white-collar workers with busy jobs but whom the trial court found would not be overly burdened by jury service, and one whose mother was in poor health.

Appellant argues that this is evidence of the trial court’s violation of KRS 29A.100, which states that a “trial judge may excuse [a] juror upon a showing of undue hardship, extreme inconvenience, or public necessity.” Specifically, Appellant claims that because the trial court did not excuse the four jurors who he challenged for cause, the trial court did not consistently apply KRS 29A.100. But Appellant has failed to show the trial court was incorrect or that it abused its discretion in finding that those four jurors would not suffer a hardship. In fact, it is apparent that the trial court was applying KRS 29A.100 quite consistently because he removed those jurors who showed that they would suffer a hardship, either with regard to their finances or their children, but refused to remove those jurors who did not show a hardship. This is exactly the determination required by KRS 29A.100.

Appellant also makes the curious argument that the trial court systemically excluded mothers and persons from lower economic brackets, and thus the trial court engaged in a de facto automatic exemption for those people. While it is unquestioned that “[tjhere shall be no automatic exemptions from jury service,” we find that the trial court granted no such automatic or per se exemptions. Instead, the trial court applied the hardship provision of KRS 29A.100, and did so correctly. That such application tends to allow the trial court to excuse mothers who have no alternative methods of childcare or people with lower-paying jobs is perhaps an inevitable result of a hardship exemption. This, however, does not constitute the sort of “systematic exclusion of a distinctive group” that is prohibited in jury selection.

E. Prospective Jurors Not Struck For Cause

Appellant also claims that his constitutional right to a fair trial was violated by the trial court’s failure during individual voir dire to remove for cause two prospective jurors, Juror 7115 and Juror 6851. Appellant argues that these jurors were not qualified and could not be fair and impartial. While we recognize that it is reversible error if a juror should have been excused and was not, we also note that the trial court has broad discretion in determining whether a prospective juror should be excused for cause.

Appellant challenged Juror 7115 because one of her neighbors, who she had employed as a babysitter, had been murdered when the juror lived in New York. She said that the incident was upsetting and that it had made her more cautious in general, but that she would consider all the facts and that she felt she could be fair. Appellant claims that her “demeanor, not necessarily her words,” showed that she could not be impartial or fair, and that under the totality of the circumstances, specifically the nature of the crime against her neighbor and her relationship with that neighbor, it was impossible for the juror to be fair and impartial. Appellant draws our attention to Montgomery v. Commonwealth for support. In Montgomery, we noted that it makes no difference that a juror claims he or she could be fair, and that the trial court should be guided by the probability of prejudice. But in that case, the bias attributed to the juror stemmed from exposure to pretrial publicity, which is not the case here. And we have noted that the fact a juror was the victim of a crime similar to what the defendant is charged with is not grounds for an automatic removal if the trial court is satisfied that the juror could “objectively evaluate the evidence relating to all counts of the indictment and render a fair verdict.” Appellant’s attorneys questioned the juror extensively and failed to elicit any evidence of potential bias stemming from her experience. The trial court was satisfied that the juror would be fair and impartial, and so are we. The trial court did not abuse its discretion in not removing this juror for cause.

Juror 6851 was a corporate attorney who had worked in a prosecutor’s office while in law school in 1986. Appellant challenged him because his knowledge of the law, specifically of parole eligibility, might taint the jury. Appellant now points to the fact that the trial court had previously excused another juror, Juror 9699, who had been exposed to the parole system through his experience as a volunteer chaplain at a state prison, because of his knowledge of parole eligibility. Though no error has been asserted in the removal of Juror 9699, Appellant does claim that if this juror was properly excused, then Juror 6851 should have also been excused. As we have noted before, “there is no authority for the proposition that mere knowledge about parole eligibility is a basis for a challenge for cause.” The trial court did not abuse its discretion in refusing to excuse Juror 6851 for cause.

F. Sufficiency of the Evidence

Appellant claims that the Commonwealth failed to prove beyond a reasonable doubt that he committed the murder or that the aggravator, murder for profit, was present. Specifically he claims that the only physical evidence in the case, the DNA found under Ms. Andrew’s fingernails, connected Phillip to the murder, and that he was implicated only by Phillip’s testimony. As to the aggravator, he argues that he had no knowledge before the murder that he was a beneficiary of Ms. Andrew’s life insurance. Thus, he claims he was entitled to a directed verdict of acquittal.

“On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal.” The jury heard testimony that Appellant and his brother visited Ms. Andrew and that Appellant and Ms. Andrew fought on the night that she was murdered, that Appellant then asked his brother to he about their whereabouts on that night, that Appellant knew about the insurance policies, and that Appellant even admitted to his brother that the insurance money had been his motive. If true, this evidence is sufficient to sustain the jury’s verdict. And whether the testimony was true, i.e., whether the witnesses presenting this testimony were credible, is the province of the jury. The Commonwealth sufficiently proved its case to get to the jury, and the trial court’s refusal to grant a directed verdict was not error.

G. Hearsay

Appellant also raises issues with a number of hearsay statements that the trial court admitted into evidence. The statements involved, mostly in paraphrased form, are as follows:

1. Testimony by Linda Kraus (“Kraus”), a friend of Ms. Andrew, that Ms. Andrew had told her she was going to put money in a bank account for Appellant because he had depleted all his funds.
2. Testimony by Kraus that Ms. Andrew repeatedly told her that she was going to give Appellant money because she felt that he needed financial assistance.
3. Testimony by Kraus that Ms. Andrew told her that she intended to make Appellant a beneficiary of her life insurance.
4. Testimony by Fred Bear (“Bear”), a co-worker of Ms. Andrew, that Ms. Andrew told him the day before her murder that she was upset at Appellant because he had not shown up at her home for a special dinner the night before.
5. Testimony by Bear that Ms. Andrew told him that she unsuccessfully tried to call Appellant repeatedly after he failed to show for the special dinner.
6. Testimony by Charlotte Dye, a coworker of Ms. Andrew, about a lengthy and complex statement made by Ms. Andrew on August 27. The challenged testimony is as follows:
She said that he had not shown up for dinner the previous night as they had planned and that she was very upset and that he had not called her and she had tried to reach him to get an explanation as to why he hadn’t followed through on their plans. And by the time she actually left the message and decided to leave one, she was very even more distraught and she told him she wasn’t going to see him anymore and that she was going to break off the relationship.... She said she was really angry with him. Then she said that she had been very supportive of him in his separation from his wife and had done things for him that she thought was beyond what really she should have done. He had broken her spirit and that if he was going to be so unkind when she had been so supportive that he needed some kind of psychological type of help. Also she told me that she said that she told him that the two younger of the children didn’t belong with him if he was that kind of unkind of a person and she had always said that she thought he was a better parent and that they should be with him before that.
7. Testimony by Kelly Pope (“Pope”), a co-worker of Ms. Andrew, that Ms. Andrew once told her that she gave Appellant her Army Reserve check because she did not need it.
8. Testimony by Pope that Ms. Andrew was upset and was having trouble focusing, and that Ms. Andrew said that she was angry with Appellant.
9. Testimony by Kate Smothers (“Smothers”), Ms. Andrew’s daughter, that Ms. Andrew told her that Appellant was not doing well and that she was going to keep giving him her Army Reserve checks because he needed some help.
10. Testimony by Smothers that Ms. Andrew had called her on August 28 and left a message on her cell phone telling her that she was on her way home and that Appellant had “gotten himself into some kind of trouble.”
11. Testimony by Kraus that Ms. Andrew would call [her] and say, ‘You know, he’s supposed to come, he’s supposed to be here tonight and I’ve not heard from him.” Once he’d told her that he had just fell asleep in the RV, and ... once he told her that he had a migraine. And then another time he was supposed to be there and he told her that he headed back to Kokomo instead of coming straight to her when he called her and said, “I’m just right close to you.”
12. Testimony by Kraus that when she asked Ms. Andrew if Appellant might be seeing another woman, Ms. Andrew replied, “I’d find it hard to believe there would be another woman because he has trouble getting his pecker up.”

Statements 1, 2, 3, and 9 were properly admitted under KRE 803(3) as evidence of Ms. Andrew’s then existing mental state, specifically her intent to give Appellant money. Statements 4, 5, and 8 were also properly admitted under KRE 803(3) as evidence of Ms. Andrew’s mental state, specifically her mental feelings, pain, and intent to break off her relationship with Appellant. The majority of Statement 6 was properly admissible under the same analysis, especially since Ms. Andrew specifically articulated her desire to end her relationship with Appellant. And while Statement 6 contains some elements that, considered alone, would not be admissible (e.g., “[s]he said that he had not shown up for dinner the previous night” and “she said that she had been very supportive of him in his separation from his wife and had done things for him that she thought was beyond what really she should have done”), when considered in the context of the clearly admissible portions of the statement, they simply go to show her then existing mental state, specifically her intent to end the relationship, and were thus properly admitted under KRE 803(3). But even if those questionable portions of Statement 6 were inadmissible, they were not sufficient to change the outcome of the trial, and we find that their admission was at most harmless error.

Statement 11 is evidence of Ms. Andrew’s then existing mental state, namely, that she was upset with Appellant, and, therefore, the statement is admissible for that purpose. What Appellant purportedly told Ms. Andrew was not admitted to prove the truth of the matter asserted, i.e., the truth of the reasons that Appellant gave for standing her up, but merely to explain further the reason that Ms. Andrew was upset. Accordingly Appellant’s purported statements were not hearsay. Regardless, because there is no substantial possibility that the result would have been different if those statements had been excluded, we find that their admission, if error, was harmless.

Statement 7 constituted a “statement of memory ... to prove [the] fact remembered,” and thus was not properly admissible. But because the Statement is almost identical to several other statements of future intent, i.e., Statements 1, 2, 3, and 9, except that it showed such action in the past, we find that its admission was harmless error. Statements 10 and 12 also do not appear to fall under any of the exceptions to the hearsay rule. But again, because there is no substantial possibility that the result would have been different if those statements had been excluded, we find that their admission was harmless error.

H. Evidence of Extramarital Affairs and Other Bad Acts

Appellant claims that the trial court erred in allowing evidence of Appellant’s extra-marital affairs and other bad acts because this evidence was irrelevant and inflammatory. Appellant admits that for the majority of these claims, nine of thirteen, there was no contemporaneous objection at trial. Appellant argues that several of these claims were preserved in part by a motion in limine to prohibit the introduction of evidence of Appellant’s extra-marital dalliances. Appellant, however, has only cited to the oral argument on the motion, after which the trial court indicated a ruling would be forthcoming, and not to any portion of the record where the trial court made a ruling on this particular motion in limine. And our own review of the record, specifically the final pretrial motions, has failed to reveal such a ruling. As such, it is apparent that the trial court failed to address this motion in limine, and Appellant did not ask for a ruling after initially arguing the motion. As such, these claims were not preserved for our review. Four of Appellant’s claims, however, were preserved by objections during trial, and we address each of those in turn.

1. Melissa Hudson’s Infidelity Testimony

During her direct testimony, Melissa Hudson (“Hudson”) began by describing her relationship with Appellant. She testified that she knew Appellant when she was a little girl, that she met him again in 1992, and that they began having an affair in 1993 that resulted in a child. She also mentioned that both she and Appellant were married to other people at the time of the affair. Appellant did not object to this testimony. The Commonwealth then began questioning her about Appellant’s financial activity in 1998 and 1999. The Commonwealth then asked Hudson when in 1999 that she began to suspect that Appellant was being unfaithful to her. At this point the Appellant objected, arguing that testimony about infidelity had no probative value and was prejudicial. The Commonwealth replied that the testimony would explain why Hudson was going through Appellant’s trash on August 28, 1999, that it would explain his reaction when Ms. Andrew questioned him that night, and that the next question was moving on to the time surrounding the murder. At this explanation, Appellant’s lawyer said, “that’s fine,” and the trial court overruled the objection.

Appellant now relies on this objection in urging us to find that introduction of evidence of his marital infidelity was improper and prejudicial. As a contemporaneous objection, however, this covers, at most, the specific questioning about Appellant’s infidelity to Hudson in 1999. And while “evidence of marital infidelity that lacks legitimate connection to the crime charged amounts to an attack on the defendant’s character and results in prejudicial error,” that is not the case here because, this testimony was elicited to create a context for the events in the days leading up to Ms. Andrew’s death. The testimony also points to a possible motive for Appellant, namely the fact that the two women he was seeing were about to discover each other. As such, it was not error to admit this testimony. Furthermore, Appellant waived this issue when his attorney said “that’s fine” once the Commonwealth explained the purpose of the questioning.

2. Tiffany Ratliff’s Bankruptcy Testimony

Appellant also takes issue with part of the testimony of Tiffany Ratliff (“Ratliff’), a paralegal, about his bankruptcy petition, which was offered to establish the financial motive for the crime. Specifically, Appellant claims that Ratliff was allowed to testify, over his objection, that the bankruptcy documents indicate that Appellant forged his ex-wife’s signature on some loan documents, and that such testimony was inappropriate because it did nothing to prove that Appellant committed the murder. First we would note that a review of the records reveals that Appellant did not make the objection during trial; rather, the trial court raised the issue by stopping Ratliff’s testimony preemptively and calling the lawyers to the bench. Because Appellant’s attorney participated in the discussion of this issue during the bench conference, we will address the merits of Appellant’s argument.

We would simply note that Appellant mischaraeterizes the testimony given by Ratliff on this issue. The Commonwealth asked her whether there was a letter included with the loan documents from Appellant to the bank making the loan wherein Appellant claims he was empowered to sign his ex-wife’s name to the loan documents. Ratliff did not testify as to whether Appellant had forged the signature (though, based on comments made at the bench-conference, the possibility that Ratliff might make that inference is what the trial court was concerned about). Appellant’s ex-wife, however, had already testified that Appellant had forged her signature.

As to Appellant’s contention that the testimony did nothing to prove that he murdered Ms. Andrew, we would note that Ratliff’s testimony simply shored up the testimony of Appellant’s ex-wife. And testimony about whether Appellant forged the signature on the loan documents goes to proving the condition of Appellant’s finances at the time of the murder, which in turn helps prove the financial motive claimed by the Commonwealth. As such, Ratliff’s testimony on this issue was proper.

3. Cross-Examination of Appellant Regarding Bankruptcy and Life Insurance

Appellant also claims error in a line of cross-examination by Phillip’s lawyer when Appellant was on the stand. Phillip’s lawyer asked Appellant why he failed to disclose on his bankruptcy petition that he had an interest in any life insurance benefits. Phillip’s lawyer asked several questions in this vein, finally asking whether Appellant had intentionally attempted to defraud his creditors. When Appellant replied that he had not been thinking of that, Phillip’s lawyer made the sarcastic remark, “I’m sure you didn’t.” Appellant’s lawyer objected. The trial judge sustained the objection. Phillip’s lawyer agreed not to make further inappropriate comments, but Appellant did not ask for the jury to be admonished, evidencing that he was satisfied with the result. While we certainly agree that the sarcastic remark was inappropriate, it did not rise to the level of a harmful error. As to Appellant’s general relevance and prejudice concerns regarding this fine of testimony, we note simply that the questioning was aimed at eliciting Appellant’s financial motive for committing the crime and thus was appropriate.

In his brief, Appellant also makes a vague allegation that this line of questioning and testimony contained improper character evidence because the defense received no notice pursuant to KRE 404(c). KRE 404(c) would be inapplicable here because it applies only to the prosecution, whereas the cross-examination in question here was by the lawyer for a co-defendant. Also, the questioning was actually proper under KRE 404(b) as it was designed to elicit evidence of Appellant’s motive. But most importantly, this aspect of the testimony, i.e., its “character evidence” nature, was not the subject of an objection at trial, and thus was not preserved.

4. Inappropriate Comment by Phillip’s Lawyer

As Phillip’s lawyer was sitting down after finishing his cross-examination of Appellant, he turned from the jury and muttered under his breath, “He’s a piece of scum.” The trial court then took a short recess, during which Appellant’s sister, who had been sitting in the galley and had overheard the comment, approached Appellant’s lawyer to ask why the comment had been made. Upon the jury’s return to the courtroom, Appellant’s lawyer informed the court of this potentially prejudicial comment. The trial court questioned the two jurors closest to the defense table where Phillip’s lawyers were seated. None of these jurors heard the lawyer’s comment. The judge refused to question the other jurors — a decision that Appellant now claims was error. Again, though the comment was inappropriate, we do not think it merits reversal. The trial judge was satisfied that the jurors did not hear the comment, and Appellant’s own attorney had not heard the comment. The trial court resolved the situation effectively and the improper comment was harmless.

I. Ligature Expert Testimony

Appellant claims that the trial court erred in allowing the Commonwealth to present the testimony of Bill Grimes (“Grimes”) as an expert on ligatures used for strangulation. Specifically, Appellant argues that Grimes was not qualified to give expert testimony on the use of ligatures, i.e., his testimony would not be “reliable,” that his testimony would not assist the trier of fact because there was no question that Ms. Andrew was strangled and that the testimony as to the type and purpose of ligature used did nothing to establish who committed the murder.

When the Commonwealth called Grimes as a witness, Appellant challenged his qualifications as an expert. The trial court allowed the Commonwealth to lay a foundation for Grimes’s qualification as an expert by letting him be questioned as to his qualifications in front of the jury. Appellant’s attorney was then allowed to voir dire Grimes outside the presence of the jury. His testimony revealed that he had enlisted in the Army in 1964 and went through Officer Candidate School. He received significant combat and Special Forces training, which included the use of rope as a strangling weapon, which he referred to as a “garrote.” He then served in Southeast Asia from 1966 to 1970, during which he engaged in special operations and assisted in training Navy SEALs and a large detachment of native soldiers in Thailand for special operations skills, which included the use of knives and garrotes. At one point, Appellant’s lawyer asked, “You’re testifying under oath that back in the 70s and even before that, you used these tactics yourself defending our country?” Grimes replied, “Yes sir,” with the clear implication being that during his non-training assignments in Southeast Asia, i.e., during combat, he personally used garrotes in the field. Upon his return to the United States in 1970, he was a Special Forces instructor for about one year, during which he taught about special and covert operations, which included training in the use of a garrote. Since then, he has also served in the Army Reserves, where he has specifically trained soldiers in the use of garrotes.

After hearing this testimony, the trial court ruled under KRE 702 that “Mr. Grimes is qualified to testify concerning the design and use of ligatures” and that his “specialized knowledge will be helpful to the jury in deciding an issue of fact in this case.” Basically, the trial court made a finding that the proffered expert testimony was both rehable and relevant. Grimes went on to testify that a garrote and a “ligature” were the same thing in this context, with the latter term deriving from the jargon of medical examiners. He also testified that the particular type of ligature used in this case — a rope with several knots along its length and with a slipknot and loop on each end — was designed more as a means of controlling the victim, possibly with one hand, and that, as a result, it would kill slowly.

We review the overall decision as to whether to admit expert testimony for abuse of discretion. Because the finding of reliability, i.e., whether the witness is qualified as an expert, is “a factual determination,” we review that specific finding for clear error. The trial court’s finding that Grimes was qualified as an expert was supported by substantial evidence. We have noted that a witness can be qualified as an expert without possessing a particular academic degree. And in this case, Grimes demonstrated that he had received extensive training, and had practical experience, in the use of garrotes, and was learned enough on the topic to teach other soldiers. The trial court’s finding that Grimes was qualified as an expert was not clearly erroneous. Because the murder weapon in this case was a type of garrote, Grimes’s testimony was relevant to show the jury how the murder was committed and why the particular type of ligature was used. As such, the trial court’s decision to allow Grimes to testify as an expert was not an abuse of discretion.

Appellant also claims that because Grimes received his training in the use of ligatures in the military, that allowing him to testify created the inference that Appellant would also have received such training, even though he was not in the Special Forces. He claims that he should have been able to refute this inference by introducing evidence from his military record, specifically “what he, as a physician’s assistant in the military, did during his time of service, including the receipt of awards for saving people’s fives, not killing them.” Such evidence, however, would have served only to bolster Appellant’s character and it would not have refuted any implication that he received combat training in the use of ligatures. Instead, the appropriate means to counter the inference would have been to have Appellant himself testify, seek admission of specific portions of Appellant’s record related to what type of training he received, and/or to ask Grimes if a physician’s assistant would have received ligature training. The trial court did not commit error in refusing to allow Appellant to admit evidence of awards for saving fives.

J. Ability to Present a Defense

Appellant claims that the trial court prevented him from presenting his defense when it refused to allow him to introduce the following evidence: (1) the location of the cell phone tower that logged a call he made on Sunday, August 29, 2000; (2) cross-examination of the lead investigative detective about the former lead detective; and (3) testimony about Phillip’s unusual behavior in Los Angeles, California in the 1970s.

1. Cell Phone Tower

When the Commonwealth subpoenaed the cell phone records for Appellant, Ms. Andrew, and others, the telephone companies in charge of the records indicated that they no longer had information regarding which cell phone towers had been used when the calls were made. The Commonwealth inquired as to this because this information would give the approximate location, within a few miles, of the cell phone when the call was made. Appellant claims he should have been allowed to introduce one of the cell phone records that seems to indicate that one of the calls was made from Jeffersonville, Indiana because it corroborates his testimony that he made the call while traveling from Indiana to Kentucky. The notation that indicates the location of this call, however, is handwritten. The Commonwealth did not know who wrote this notation, and Appellant offered no explanation, much less evidence, of its source. The record contains no evidence that would provide a means for the trial court to even begin verifying the validity or source of the handwritten notation. Appellant’s claim that because the notation was present in the discovery when it was provided by the Commonwealth, the notation should be admissible. We disagree. The mere fact that the notation was present in the discovery is not a sufficient authentication or identification so as to make the evidence admissible. Given the dearth of proof as to the source of the note, we conclude that the trial court did not abuse its discretion in refusing to allow Appellant to admit this notation.

2. Former Lead Investigator

Detective Steven Hall was the original lead investigator into the murder of Ms. Andrew. He interviewed many of the witnesses in the case and was the only witness to appear before the Grand Jury in this case. During the investigation, however, he was charged with illegally obtaining prescription drugs and he resigned from the police on July 6, 2000. Detective Hall did not testify at trial. When Detective Hickerson, the investigator who replaced Detective Hall, testified, Appellant wanted to cross-examine him about Detective Hall’s criminal charge, but the trial court refused to allow the line of questioning on the grounds that it was an attempt to cross-examine and impeach on a collateral matter.

It is a long-standing rule of Kentucky law that “a witness cannot be cross-examined and then contradicted as to a collateral matter.” Had the Commonwealth offered Detective Hall as a witness, for example, because he was the only person with knowledge as to certain aspects of the investigation, this line of questioning might have been appropriate. But because Detective Hall was not called as a witness and Appellant has failed to show that proposed line of questioning would have yielded probative testimony, we agree with the trial court that this was a collateral issue. As such, the trial court did not abuse its discretion in refusing to allow Appellant to cross-examine Detective Hickerson as to Detective Hall’s criminal charges.

3. Phillip’s Unusual Behavior

During his direct testimony, Appellant testified about how he had Phillip move in with him when he was living in Los Ange-les, California during the 1970s. He then helped Phillip get a job, a car, and an apartment, but that Phillip then abruptly left and went to Indiana. At this point, Phillip’s lawyer objected on the grounds of relevance and asked that the jury be admonished to ignore the testimony regarding Phillip’s activities in California. The trial court sustained the objection, but did not give the requested admonishment. Appellant now claims that the trial court prevented him from offering testimony as to Phillip’s prior erratic behavior, specifically his behavior in California, which went to Appellant’s theory that Phillip committed the murder.

First, we note Appellant offers no proof that the trial court abused its discretion in limiting the testimony on this issue. But more importantly, Appellant actually did get to testify as to Phillip’s erratic behavior in California. Phillip’s objection came after the testimony was given, and the trial court did not admonish the jury to ignore the testimony. The testimony that Appellant claims he should have been allowed to give was actually admitted at trial and the jury was allowed to consider it. There was no error. We also would note that any objection to excluding additional evidence of Phillip’s behavior in California is not preserved for our review.

K. Testimony Regarding “ *67”

The Commonwealth presented a significant amount of evidence regarding telephone calls made by Appellant and others. This evidence was presented through the testimony of Melissa Reynolds (“Reynolds”), a paralegal in the Commonwealth’s Attorney’s office. Near the end of her testimony, she described a call from Appellant’s phone as having been prefaced by “star 67” (or, as it is commonly written, “ *67”). When she began to testify as what *67 meant, Appellant objected, arguing that she was not qualified to give expert testimony, specifically that she was not qualified to determine if a given call listed on a telephone record was a *67 call. The trial court overruled the objection and allowed Reynolds to “testify as to what her knowledge and experience is as a consumer of telephone services.” She went on to testify that the *67 feature allows a caller to make a phone call without his telephone number showing up on the caller-ID of the person being called. Appellant now raises the same argument, claiming that “her testimony as to the presence of a *67 phone call and its meaning was not legitimate lay witness testimony” and that the Commonwealth should have called an expert witness.

Though knowledge of modern telephone features is by no means universal, it is common enough that non-expert testimony about local telephone features such as *67, much like the more well-known “star 69” (which, depending on the particular service offered, either gives the time and number of the last incoming call or dials the number of the last incoming call), is allowed so long as the witness has personal knowledge of the feature and how it works. Such testimony, if limited to whether a number listed on a bill is prefaced by the code that designates a given feature and/or a basic explanation of how the feature works, as in this case, does not even have to fall under lay testimony restrictions because such testimony is not “opinion or inference[ ].” Reynolds did not testify as to what the use of this feature meant in terms of the intent of the caller to deceive or anything else. She simply testified that the call was a *67 call and that *67 prevented the caller’s phone number from showing up on caller-ID. The trial court did not abuse its discretion in allowing this limited testimony.

L. Aggravator in Indictment

Appellant argues that because the ag-gravator was not included in the indictment, he did not receive adequate notice, and the notice of aggravated circumstances finally propounded by the Commonwealth failed to meet the requirements of KRS 532.025(l)(a). The indictment, returned on April 13, 2001, reads as follows:

That on or between the 28th day of August 1999, and the 30th day of August 1999, in Jefferson County, Kentucky, the above named defendants, Phillip B. Bratcher and Mark A. Bratcher, acting alone or in complicity with each other, committed the offense of Murder by intentionally or under circumstances manifesting extreme indifference to human life wantonly caused the murder of Susan Andrew.

The specific charge in the indictment, as listed beside the style of the case, i.e., “The Commonwealth of Kentucky Against Phillip B. Bratcher [and] Mark A. Bratcher,” is:

MURDER
KRS 507.020 Capital Offense
20 years to 50 years; or Life; or Life Without
Parole; or Life Without Parole for 25 Years;
or Death

The Commonwealth also filed a “Notice of Aggravating Circumstances” on September 17, 2001, which reads: “The Commonwealth’s proof will demonstrate that the defendant committed the offense of murder in this case for the purpose of receiving money as the beneficiary of some of the victim’s life insurance policies. The proof is outlined in the discovery documents the Commonwealth has previously provided for defense counsel.” Appellant did not challenge the sufficiency of the indictment or the notice of aggravating circumstances prior to trial.

The issue of whether specific aggravating factors must be listed in the indictment has already been decided in Kentucky. As we noted previously in Furnish v. Commonwealth, “Appellant ... contends that because the Grand Jury failed to include aggravating circumstances in the murder indictment the prosecution was precluded from seeking the death penalty. We disagree.” The circumstances in Furnish were strikingly similar to those now before us:

The indictment, which was returned on August 14, 1998, clearly charged Appellant with “Murder, a capital offense, when he caused the death of Jean Williamson, by strangling her to death, in violation of KRS 507.020 .... ” Moreover, on the same date that the indictment was returned, the Commonwealth filed a formal “Notice of Aggravating Circumstances,” which stated that the case would be prosecuted as a capital case based on the aggravating circumstances of the murder being committed while Appellant was engaged in the commission of first-degree robbery and first-degree burglary. At no time prior to this appeal did defense counsel complain of insufficient notice and Appellant may not claim such at this time.

The indictment in this case, which lists “Murder” as the offense charged, describes the charge as a “Capital Offense,” and lists “Death” as a possible penalty, was more than sufficient to give Appellant notice of the charge he faced. Likewise, the notice of aggravating circumstances was sufficient. It described the specific aggravator (murder for profit) and the proof that the Commonwealth intended to rely upon (that Appellant was the beneficiary of the victim’s life insurance).

On a final note, Appellant’s reliance on Jones v. United States and Apprendi v. New Jersey in this matter is misplaced. The thrust of both cases is that the jury, not the judge, must determine facts that increase penalties. In this case, the jury determined that an aggravating factor was present. The cases Appellant cites do not stand for the proposition that a specific aggravating factor must be listed in the indictment. As the Supreme Court noted in Apprendi, “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” But the “statutory maximum,” as described in the indictment, was death — a harsher penalty than that received by Appellant. As such, the trial court committed no error in this regard.

IV. CONCLUSION

For the foregoing reasons, Appellant’s conviction is affirmed.

All concur.

      . In an effort to avoid confusion between Appellant and his brother, hereinafter Phillip Bratcher will be referred to as "Phillip.”

      . Ky. Const. § 110(2)(b).

      . United States v. Causey, 834 F.2d 1277, 1287 (6th Cir.1987) (citing United States v. Stull, 743 F.2d 439, 446-47 (6th Cir.1984)).

      . Wilson v. Commonwealth, Ky., 836 S.W.2d 872, 886-87 (1992).

      . Foster v. Commonwealth, Ky., 827 S.W.2d 670, 679 (1991).

      . Rachel v. Commonwealth, Ky., 523 S.W.2d 395, 400 (1975).

      . Tinsley v. Commonwealth, Ky., 495 S.W.2d 776, 780 (1973).

      . Foster, 827 S.W.2d at 679; see also Gabow v. Commonwealth, Ky., 34 S.W.3d 63, 71 (2000) ("Even if the defendants attempt to cast blame on each other, severance is not required.”).

      . E.g., Taylor v. Commonwealth, Ky., 995 S.W.2d 355 (1999).

      . Id. at 360 (quoting Ware v. Commonwealth, Ky., 537 S.W.2d 174, 177 (1976)) (alteration and omission in original).

      . Rachel, 523 S.W.2d at 399.

      . Commonwealth v. Maddox, Ky., 955 S.W.2d 718, 721 (1997) (quoting United States v. Boylan, 898 F.2d 230, 254 (1st Cir.1990)).

      . Davis v. Alaska, 415 U.S. 308, 316-17, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974).

      . Weaver v. Commonwealth, Ky., 955 S.W.2d 722, 726 (1997) (quoting Olden v. Kentucky, 488 U.S. 227, 232, 109 S.Ct. 480, 483, 102 L.Ed.2d 513 (1988) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986))) (alteration and omission in original).

      . Id. (citing Quinn v. Neal, 998 F.2d 526, 529 (7th Cir.1993)).

      . Maddox, 955 S.W.2d at 721.

      . Cf. Noel v. Commonwealth, Ky., 76 S.W.3d 923, 929 (2002) ("We conclude that the trial judge’s decision to admit this evidence was correct even though for the wrong reason.”); Tamme v. Commonwealth, Ky., 973 S.W.2d 13, 31 (1998) ("Nor is it of any consequence that the trial judge reached the correct result for the wrong reason.”).

      . Maddox, 955 S.W.2d at 721.

      . McDonald v. Commonwealth, Ky., 569 S.W.2d 134, 136 (1978) (citing Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)).

      . See, e.g., Cain v. Smith, 686 F.2d 374, 381-82 (6th Cir.1982) (holding an eleven and a half month delay to be presumptively prejudicial).

      . Doggett v. United States, 505 U.S. 647, 652, 112 S.Ct. 2686, 2691, 120 L.Ed.2d 520 n. 1 (1992).

      . Barker, 407 U.S. at 532, 92 S.Ct. at 2193.

      . KRS 29A.090.

      . Commonwealth v. McFerron, Ky., 680 S.W.2d 924, 927 (1984).

      . Thomas v. Commonwealth, Ky., 864 S.W.2d 252, 259 (1993).

      . Mabe v. Commonwealth, 884 S.W.2d 668, 670 (1994).

      . Ky., 819 S.W.2d 713 (1991).

      . Mat 718.

      . Whalen v. Commonwealth, Ky., 891 S.W.2d 86, 88 (1995), overruled in part on other grounds by Moore v. Commonwealth, 990 S.W.2d 618 (1999); see also Woodall v. Commonwealth, Ky., 63 S.W.3d 104, 118 (2001) (holding that failure to excuse juror whose sister had been raped was not error).

      . Woodall, 63 S.W.3d at 118.

      . Commonwealth v. Benham, Ky., 816 S.W.2d 186, 187 (1991).

      . Matherly v. Commonwealth, Ky., 436 S.W.2d 793 (1968).

      . KRE 803(3) ("The following are not excluded by the hearsay rules, even though the declarant is available as a witness: ... (3) Then existing mental, emotional, or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health)-”).

        .See Crowe v. Commonwealth, Ky., 38 S.W.3d 379, 383 (2001) (holding that testimony from the victim’s co-workers about conversations in which the victim had stated her intention to tell the defendant that she wanted a divorce on the night of the murder was allowed because it tended, at least inferentially, to prove the victim's intent to inform appellant on the evening of her death that she wanted a divorce).

      . RCr 9.24.

      . KRE 801(c) (" 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”).

      . RCr 9.24.

      . KRE 803(3).

      . RCr 9.24.

      . Id.

      . Turner v. Commonwealth, Ky., 460 S.W.2d 345, 346 (1970).

      . Smith v. Commonwealth, 904 S.W.2d 220, 222 (1995).

      . See Goodyear Tire and Rubber Co. v. Thompson, Ky., 11 S.W.3d 575, 578 (”[P]roffered expert testimony ... must be both relevant and reliable.”).

      . Fugate v. Commonwealth, Ky., 993 S.W.2d 931, 935 (1999).

      .ROBERT G. LAWSON, THE KENTUCKY EVIDENCE LAW HANDBOOK § 6.20[6], at 456 (4th ed.2003).

        . Fugate, 993 S.W.2d at 935.

      . See KRE 901.

      . Baker Pool Co. v. Bennett, Ky., 411 S.W.2d 335, 338 (1967).

      . See Shirley v. Commonwealth, Ky., 378 S.W.2d 816, 818 (1964) (holding that cross-examination of witness about his public drunkenness convictions that were unrelated to the case at hand was a collateral issue).

      . KRE 103(a)(2); Hart v. Commonwealth, 116 S.W.3d 481, 484 (Ky.2003).

      . KRE 701.

      . Ky., 95 S.W.3d 34, 41 (2002).

      . Id. (omission in original).

      . 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999).

      . 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

      . Id. at 489, 2362-63, 120 S.Ct. 2348 (emphasis added).


source: Caselaw Access Project

author: COMBS, Chief Judge.

license: Public Domain

text:
    Richard Steven FOWLER, Appellant, v. Tara Renee SOWERS, Appellee.
    No. 2004-CA-000421-MR.
    Court of Appeals of Kentucky.
    Nov. 12, 2004.

      Julia T. Crenshaw, Hopkinsville, KY, for appellant.
    Katherine Hicks Demps, Hopkinsville, KY, for appellee.
    Before COMBS, Chief Judge; JOHNSON and MINTON, Judges.
   OPINION

COMBS, Chief Judge.

Richard Steven Fowler appeals an order of the Christian Family Court of January 20, 2004. He argues that the family court erred in dismissing his motion to modify joint custody of the parties’ child without first granting an evidentiary hearing. Having reviewed the record and the applicable statute, KRS 403.340, we agree that a hearing was warranted under the circumstances set forth in Richard’s pleadings. Therefore, we vacate the order of dismissal and remand for such a hearing.

Richard and the appellee, Tara Renee Sowers, were married in 1999; their marriage was dissolved in 2000. By agreement, the parties shared joint custody of their only child, Christian Steven Fowler, who was born on August 4, 1999. Tara was awarded the primary physical care of Christian.

In November 2003, Richard filed a verified petition to modify the custody of Christian. He alleged that in the three years since their separation, Tara had resided in no fewer than six different locations; that in 2003, she had given birth to another child out-of-wedlock; and that after her subsequent marriage to the father of the new baby, she moved to North Carolina. Richard stated that during Tara’s five-month residence in North Carolina, Christian lived with him for two full months. Before Tara’s move, Richard enjoyed frequent visits with Christian. Consequently, Christian developed a close relationship with Richard’s parents and grandparents as well as with Tara’s extended family, who all reside in Kentucky.

After Tara and Christian returned to Kentucky, Richard learned that Tara was next planning to move to Alaska, where her husband was currently stationed by the military. At that point, Richard petitioned for a change of custody. Citing the instability in Tara’s life and Christian’s close involvement with him and his extended family, he claimed that it was in the child’s best interest that he be designated as Christian’s primary physical custodian.

In response, Tara filed a motion to dismiss the petition for modification. Relying on Fenwick v. Fenwick, Ky., 114 S.W.3d 767, 785 (2003), she argued that her relocation to Alaska was “presumptively permissible.” She contended that Richard was required to prove that Christian would be seriously endangered by the out-of-state move and that the harm caused by a modification of custody would be outweighed by its advantages.

In response to the motion to dismiss, Richard argued that Tara’s arguments and the decision in Fenwick were based on a prior version of KRS 403.340 — now inapplicable. However, the trial court granted Tara’s motion and declined to conduct a hearing on the motion to modify. In its order, the trial court did not recite the standard that it was applying, finding only that Richard’s pleadings were “insufficient to establish adequate cause for a hearing.” Because the welfare of a child is at issue, Richard’s appeal has been advanced on this Court’s docket.

Richard argues that the trial court erred in granting the motion to dismiss and in refusing to conduct an evidentiary hearing on his petition for modification of custody. Under the currently applicable version of KRS 403.340, he argues that he was not required to allege or to prove that Christian would be seriously endangered by the move to Alaska in order to establish that a modification of custody was appropriate. He contends that under the current, more relaxed standards provided in KRS 403.340, he alleged sufficient facts in his affidavits to be granted a hearing on the motion. We agree that Richard was entitled to a hearing on his motion for custody modification.

It is true that KRS 403.340 was significantly altered by the General Assembly in 2001. The previous standard (utilized in Fenwick, swpra, and relied upon by Tara) permitted a change in custody only upon a dual demonstration: (1) that substantial harm would result to the child’s physical, mental, or emotional health without a change of the custodial arrangement and (2) that any harm caused by the change would be outweighed by its advantages. The statute now permits modification if “a change has occurred in the circumstances of the child or his custodian” and if “the modification is necessary to serve the best interests of the child.” KRS 403.340(3).

The strict standards for modification in the pre-2001 version of the statute were “intended to inhibit further litigation.” Quisenberry v. Quisenberry, Ky., 785 S.W.2d 485 (1990). In enacting its amendments, the General Assembly not only relaxed the standards for modification of custody, but it also expanded upon the factors to be considered when modification is requested. The statute now directs the trial court to consider and to permit a change of custody based on the factors enumerated in KRS 403.270(2), the statute used in making initial custody decisions. KRS 403.340(3)(c). The former standards for modification, which Tara argued before the family court, are now mere elements or factors to be considered by the court. KRS 403.340(3)(d)and (e).

Fenwick fails to provide Tara adequate legal support. Fenwick involved the relocation of the primary residential custodian. The Kentucky Supreme Court held that the party seeking a change of custody “failed to show emotional harm to the children” and “did not prove that the relocation would seriously endanger them.” 114 S.W.3d at 789. Although Fenwick was decided after the 2001 changes to KRS 403.340, the Court acknowledged that its decision was based on the pre-2001 version of KRS 403.340 because that was the version in effect at the time of the entry of the orders under its review. Id. at 788. Thus, Fenwick carries quite limited prece-dential weight and cannot apply in this case as Richard’s motion is governed by the current version of the statute.

There is no doubt that a move to Alaska, a considerable distance from Kentucky, is a change in circumstances contemplated by the statute. As correctly alleged in Richard’s motion, the removal of a child from one of his parents and from his entire extended family could create the potential of causing a negative impact on his best interests. Thus, the trial court should have conducted a full evidentiary hearing on the motion, weighing all the factors now encompassed by KRS 403.340. See, West v. West, Ky.App., 664 S.W.2d 948 (1984).

We vacate the order of the Christian Family Court that had dismissed Richard’s motion. This matter is remanded with directions to grant Richard an evidentiary hearing and to consider the motion in light of the standards of KRS 403.340 — as amended.

ALL CONCUR.

      . Kentucky Revised Statutes.


text:
    HAWKEYE CONSTRUCTION COMPANY, Appellant, v. Quentin Keith LITTLE, Deceased, by Jayna LITTLE, Administratrix, o/b/o Kristen Little; Hon. Donna Terry, Administrative Law Judge; and Workers’ Compensation Board, Appellees.
    No. 2004-CA-001280-WC.
    Court of Appeals of Kentucky.
    Dec. 3, 2004.
    Billy R. Shelton, Lexington, KY, for appellant.
    Robert J. Greene, Pikeville, KY, for ap-pellee.
    Before COMBS, Chief Judge; JOHNSON and MINTON, Judges.
   OPINION

COMBS, Chief Judge.

Hawkeye Construction Company petitions for review of a decision of the Workers’ Compensation Board of May 26, 2004. The Board affirmed the award of an Administrative Law Judge (ALJ) to the ap-pellee, Jayna Little, on behalf of her daughter, Kristen Little. At issue was the work-related death of Kristen’s father, Quentin Little. In awarding benefits, the ALJ applied the penalty provided in KRS 342.165, thereby enhancing the award by 30%. Hawkeye argues that the Board erred in agreeing with the ALJ that there was sufficient evidence that Hawkeye had intentionally ignored safety regulations — a finding necessary for the imposition of the 30% penalty. Having reviewed the record, we are persuaded that the Board did not err in its assessment of the evidence. See, Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685, 687-88 (1992), and Whittaker v. Rowland, Ky., 998 S.W.2d 479, 482 (1999). Thus, we affirm.

Hawkeye is a construction contractor engaged in reclamation and other activities related to industrial construction. On August 30, 2002, while operating a truck on an elevated haul road for Hawkeye, Quentin Little was fatally injured when his truck rolled off the road and fell 800 feet down a steep embankment. As reclamation work was being performed, Hawkeye was required by federal regulations to maintain on the outer edge of the roadway a berm of sufficient height to restrain Little’s vehicle. See, 30 CFR § 77.1605(k) and § 77.2(d). At the time of Little’s tragic accident, the berm had been worn away.

Following Little’s death, the U.S. Department of Labor, Mine Safety and Health Administration (MSHA) conducted an investigation and determined that the berm in the area where Little’s truck left the road was far below the required height. Accordingly, on September 22, 2002, MSHA cited Hawkeye for its violation of the federal safety regulations relating to elevated roads as follows:

The berm on the outer edge of the elevated haul road near the top of the hollow fill was not sufficient to restrain haulage vehicles operating in the area. The affected portion of the roadway was approximately fifty feet in length. The berm in this area ranged from 0-20" in height and was very narrow in width. The axle height of the largest truck using the roadway was approximately 34".

The MSHA report concluded that the faulty condition of the berm had contributed to the accident.

The only contested issue before the ALJ was whether Hawkeye intentionally violated the statute so as to justify the imposition of penalties provided in KRS 342.165, which provides:

If an accident is caused in any degree by the intentional failure of the employer to comply with any specific statute or lawful administrative regulation made thereunder, communicated to the employer and relative to installation or maintenance of safety appliances or methods, the compensation for which the employer would otherwise have been liable under this chapter shall be increased thirty percent (30%) in the amount of each payment.

In applying the statute and assessing the penalty against Hawkeye, the ALJ considered the report issued by MSHA along with other evidence surrounding the accident. In her findings, the ALJ observed that several employees of Hawkeye testified that on the day of Little’s death, “the overall pace of the day was ‘rushed’ ” and that they felt pressured to keep the trucks moving. (ALJ’s Opinion, Award and Order of December 3, 2003, p. 4.) The ALJ also found: (1) that there was no evidence of any mechanical problem with Little’s truck as a possible alternate explanation of the accident; (2) that Little could not see the ground in front of his truck for twenty to thirty feet — preventing him from seeing the edge of the road; and (3) that Hawkeye continued to operate trucks that day despite its awareness of the inadequate condition of the berm. The ALJ concluded as follows:

An employer has the duty to provide each worker with a safe place to work. See KRS 338.031(1). Based upon the testimony of record and the interviews and recommendations set forth in the MSHA investigation report, it is found that Hawkeye violated the “safe place to work” statute and also violated MSHA regulations by failing to provide and maintain an adequate berm on the outer edge of the elevated haul road. As noted by Hawkeye, not every accident should result in the imposition of a safety penalty. However, in this case, the Administrative Law Judge finds that the fatal accident was caused in large part by Hawkeye’s intentional failure to provide an adequate berm. The job foreman, Phillip Rife, testified that while he believed the berm to be sufficient before the shift began, the effect of truck tires and other heavy equipment on that berm diminished it until it was only eight to twelve inches in height. While Hawkeye, to its credit, was attempting to simultaneously widen the haul road and improve the berm, the excavator had not reached the area of the f[atal] accident to improve the berm when Mr. Little’s truck crossed it. The berm was simply inadequate in size to restrain the truck or, more importantly, to notify Mr. [Little] of the location of the edge of the elevated roadway. The condition of this berm made it a dangerous proposition for a driver operating a truck in that vicinity and is a clear violation of both KRS 342.338.013(l)[sic ] and federal safety regulations. Therefore, the insufficient berm constituted an intentional failure to comply with specific safety statutes and regulations, and played a causal role in the fatal accident.

(ALJ’s Opinion, pp. 9-10; emphasis added.)

In affirming the ALJ’s award of enhanced benefits, the Board concluded as follows:

The MSHA investigation report and MSHA citation filed of record herein, as well as the depositions of record, constitute evidence sufficient to support a conclusion that Hawkeye knew the haul road berm was inadequate on August 30, 2002, yet continued to operate trucks on that haul road even though the safety risk posed by the inadequate berm had not been fully rectified. Moreover, it may be inferred from those circumstances that Hawkeye’s failure to comply with 30 CFR § 77.1605(k) and KRS 338.031(1) was intentional.

(Board’s opinion, pp. 8-9.)

In this appeal, Hawkeye contends that the ALJ’s decision was not supported by substantial evidence. Hawkeye does not contest the ALJ’s finding that it violated both the safety regulations relating to berms and KRS 338.031(1). It cannot show — nor does it argue — that the evidence was inadequate to support the ALJ’s finding that the accident was caused “in large part” by the absence of the required berm. Hawkeye’s sole challenge to the sufficiency of the evidence is directed to intent; that is, to the ALJ’s finding that it intentionally failed to comply with the safety regulations and the duty to provide a safe working environment.

In this case, the record before ALJ Terry was devoid of any evidence indicating that Hawkeye consciously disregarded or willfully ignored safety regulations dealing with berm height.... [After learning that the berm had worn down] Hawkeye’s foreman dispatched an excavator to begin work on the haul road to reestablish berm height on the outside edge of the road in question. In fact, at the time of the fatal accident involving Little, this excavator was only several hundred feet from the area, working its way up to the spot where the fatal accident occurred.... There is nothing in the conduct of Hawkeye and its employees that could be determined to be egregious in nature and rise to the level of willful misconduct.

(Appellant’s brief, pp. 4-5.)

After reviewing the record, we agree that substantial evidence supported the ALJ’s finding of an intentional violation of a known safety regulation. At the time that the accident occurred, it is undisputed that the berm fell far below the height requirements of the federal safety regulations.

Hawkeye was aware of the safety regulations. It was also aware of the condition of the berm and, to its credit, was attempting to correct it. However, rather than shutting down its operation until the berm was safely repaired, Hawkeye took the risk of continuing to dispatch its employees onto the extremely hazardous road. Moreover, there was evidence that the financial incentive of keeping the trucks running outweighed a prudent consideration of the hazard posed by the inadequate berm. Hawkeye was under a duty to anticipate that Little, who had only been working for the company for a few days, could not see the edge of the road from his position in the truck.

These circumstances collectively support a reasonable inference by the ALJ that Hawkeye knowingly and consciously disregarded Little’s safety and thereby intentionally violated KRS 338.031(l)(a) by placing him in a position “likely to cause death or serious physical harm[.]” See, Apex Mining v. Blankenship, Ky., 918 S.W.2d 225 (1996); Lexington-Fayette Urban County Gov. v. Offutt, Ky.App., 11 S.W.3d 598 (2000); and Brusman v. Newport Steel Corp., Ky., 17 S.W.3d 514 (2000). We conclude that the ALJ had the requisite evidence to determine that Hawkeye’s conduct was sufficiently egregious to justify the 30% penalty.

The opinion of the Workers’ Compensation Board is affirmed.

ALL CONCUR.

      . Kentucky Revised Statutes.

      . Code of Federal Regulations.


author: WILLIAM RAY PRICE, JR., Judge.

text:
    STATE of Missouri ex rel. FORD MOTOR COMPANY, Relator, v. The Honorable Henry WESTBROOKE, Respondent.
    No. SC 85970.
    Supreme Court of Missouri, En Banc.
    Nov. 23, 2004.
    Rehearing Denied Jan. 11, 2005.

      Robert T. Adams, Paul A. Williams, Christopher R. Miller, Shook, Hardy & Bacon, Kansas City, MO, for Relator.
    Steven B. Garner, Jeffrey M. Bauer, Strong Law Firm, P.C., Springfield, MO, for Respondent.
   WILLIAM RAY PRICE, JR., Judge.

I.

The trial court issued an order requiring Ford Motor Company to produce certain documents that Ford claimed were work product and protected from discovery. Ford requested a writ of prohibition to prevent the disclosure of those items and a preliminary writ was issued. The preliminary writ is made absolute as modified.

II.

Gary Anderson was driving a Ford Bronco II on October 11, 1999, when he died in a single-vehicle rollover accident. His parents, wife, and minor children sued Ford for wrongful death, alleging that the Bronco II contained design defects. The plaintiffs served interrogatories and requests for production of documents in July 2002.

Ford objected to portions of the plaintiffs’ discovery requests, claiming the documents and information sought were protected as work product. In particular, Ford objected to the following on the basis that attorney-client privilege and/or the work product doctrine precluded disclosure:

Interrogatory No. 38: [Ijdentify all independent entities and individuals who were paid by Ford to perform stability, maneuverability, crashworthiness and/or handling tests on any Ford Bronco II and the dates and titles of said tests.
Request for Production No. 34-: [Produce ajll testing conducted by any independent entity paid by Ford to test stability, maneuverability, crashworthiness and/or handling tests on any Bronco II.
Request for Production No. 173: Produce all Design Analysis files and/or Product Analysis files for all accidents investigated involving a Bronco II for the years 1984 through the present which are not currently involved in litigation. This should include, but not be limited to, all vehicle inspection requests, inspection reports, correspondence, memoranda and accident reports.

The plaintiffs filed a motion in October 2003 to compel discovery. In response, Ford argued these materials were not discoverable because work product protection was perpetual in nature and plaintiffs were not entitled to Ford’s work materials, testing, and the conclusions of its consulting experts who had worked on prior Bronco II litigation.

The trial court issued an order in November 2003 requiring Ford to produce a privilege log for the documents it claimed were privileged. Ford produced privilege logs on January 15 and 22, 2004. On January 21, 2004, the plaintiffs filed a second motion to compel discovery and for sanctions. The plaintiffs filed a third motion to compel in February 2004. Ford filed supplemental and revised privilege logs on February 23, 2004.

The trial court held a hearing on March 15, 2004, on pending motions, it issued an order three days later ordering Ford to disclose all of the materials it claimed were protected. It appears from the parties’ subsequent correspondence that Ford disclosed on May 3, 2004, the materials identified in its privilege logs for plaintiffs’ Interrogatory No. 38 and Request for Production No. 34. A preliminary writ was issued by this Court on May 25, 2004.

Ill,

Rule 56(b) governs the scope of discovery. In general, “[pjarties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action....” Rule 56.01(b)(1). Subject to the rule governing expert witnesses, “documents and tangible things otherwise discoverable under Rule 56.01(b)(1)” that were “prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative” may be discovered “only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and that the adverse party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Rule 56.01(b)(3).

The exception codified in Rule 56.01(b) is known as the “work product privilege,” or the “work product doctrine.” The work product privilege precludes an opposing party from discovering materials created or commissioned by counsel in preparation for possible litigation. See State ex rel. Friedman v. Provaznik, 668 S.W.2d 76, 80 (Mo. banc 1984). In addition, it “protects the ‘thoughts’ and ‘mental processes’ of the attorney preparing a case.” State ex rel. Polytech, Inc. v. Voorhees, 895 S.W.2d 13, 14 (Mo. banc 1995). The doctrine generally protects “both tangible work product (consisting of trial preparation documents such as written statements, briefs, and attorney memoranda) and intangible work product (consisting of an attorney’s mental impressions, conclusions, opinions, and legal theories-sometimes called opinion work product)” from disclosure. State ex rel. Atchison, Topeka and Santa Fe Ry. Co. v. O’Malley, 898 S.W.2d 550, 552 (Mo. banc 1995).

“Because Rule 56.01(b)(3) protects only documents or tangible things, it has mistakenly been held that the entire work product doctrine only protects those documents or tangible things protected by the rule. As this statement ignores intangible work product, it is incorrect.” Id. at 552-53 (footnote and citation omitted). Protection of intangible work product exists independently of Rule 56.01(b)(3). Id. at 553. Once the requisite showing has been made to satisfy Rule 56.01(b)(3), a court ordering discovery “shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” Rule 56.01(b)(3).

IV.

In discovery, “[t]he party seeking discovery shall bear the burden of establishing relevance.” Rule 56.01(b)(1). If relevance either has been established or is uncontested and a party claims that a privilege precludes disclosure, “[t]he party asserting the privilege usually has the burden of proof to show that the privilege applies.” John T. Hundley, Annotation, Waiver of Evidentiary Privilege by Inadvertent Disclosure — Federal Law, 159 A.L.R. Fed. 153 (2000); see Friedenthal et al., Civil Procedure sec. 7.4 (3d ed.1999).

Blanket assertions of work product are insufficient to invoke protection. State ex rel. Faith Hosp. v. En-right, 706 S.W.2d 852, 856 (Mo. banc 1986). In order to invoke work product protection, the party opposing discovery “must establish, via competent evidence, that the materials sought to be protected (1) are documents or tangible things, (2) were prepared in anticipation of litigation or for trial, and (3) were prepared by or for a party or a representative of that party.” Raytheon Aircraft Co. v. United States Army Corps of Eng’rs, 183 F.Supp.2d 1280, 1287-88 (D.Kan.2001); see, e.g., State ex rel. Atchison, Topeka and Santa Fe Ry. Co. v. O’Malley, 898 S.W.2d 550, 554 (Mo. banc 1995) (party challenging privilege must have “sufficient information to assess whether the claimed privilege is applicable”). “Competent evidence” may include a privilege log and affidavits from counsel. See Rabushka ex rel. United States, 122 F.3d 559, 565 (8th Cir.1997). The privilege log may identify documents individually or by categories if that provides sufficient clarity for the court to rule on the asserted privilege claim. United States v. Am. Optical Co., 37 F.R.D. 233, 236 (E.D.Wis.1965). The party seeking discovery may attempt to establish that the materials’ work product status has been lost by prior disclosure without an accompanying protective order or confidentiality agreement or that the party has substantial need of the materials and cannot, without undue hardship, obtain the substantial equivalent of the materials by other means. See Rule 56.01(b)(3). Limited discovery by deposition or otherwise regarding work product may be necessary. Through this process, the parties develop a factual record from which the trial court can render an informed decision.

In evaluating the merits of the asserted privilege or any claim of waiver or undue hardship, the trial court may order an in camera review of the disputed documents. See, e.g., State ex rel. Lester E. Cox Med. Ctr. v. Keet, 678 S.W.2d 813, 815 (Mo. banc 1984); State ex rel. Friedman v. Provaznik, 668 S.W.2d 76, 80 (Mo. banc 1984). If appropriate, the trial court may appoint a special master pursuant to Rule 68.01(a). In the appointment, the trial court should delineate the scope of the master’s powers. Rule 68.01(e). The compensation of the master “shall be charged upon such of the parties ... as the court may direct.” Rule 68.01(a).

y.

The plaintiffs request that this Court quash the preliminary writ of prohibition and require Ford to disclose all the disputed documents. Ford, on the other hand, asks this Court for an order declaring that work product protection is “perpetual” and that all of its documents are protected. Yet neither of the parties has developed a factual record to support a determination of whether these documents are or are not work product or even which documents are still at issue.

VI.

The parties must develop a factual record before the trial court. The trial court shall determine what documents are at issue, whether each document (or class of documents) is or is not work product, whether work product protection has been lost by prior unprotected disclosure, and, if appropriate, whether the plaintiffs have substantial need of information contained in any of the documents and cannot obtain equivalent information without undue hardship. Ford has the burden of establishing that any particular document is entitled to work product status. Plaintiffs have the burden of establishing that this status has been lost by unprotected disclosure or that they have substantial need of information contained in any of the documents and cannot obtain equivalent information without undue hardship.

VII.

Finally, the Court must note the excessive amount of time that has passed since these documents were first requested. Missouri’s litigators are reminded that “[t]he discovery process was not designed to be a scorched earth battlefield upon which the rights of the litigants and the efficiency of the justice system should be sacrificed to mindless overzealous representation of plaintiffs and defendants.” State ex tel. Madlock v. O’Malley, 8 S.W.3d 890, 891 (Mo. banc 1999). The discovery process was not designed to be an endless and unduly expensive ordeal. The rules of discovery are intended to allow pretrial discovery to be conducted as promptly and inexpensively as possible. Missouri litigators should act accordingly.

VIII.

The preliminary writ issued by this Court is made absolute as modified. The trial court and the parties are to proceed in accordance with this opinion.

WHITE, C.J., WOLFF, STITH, TEITELMAN and LIMBAUGH, JJ., and BLACKMAR, SR.J., concur.

RUSSELL, J., not participating.

      . The correspondence between the parties, their respective briefs, and their oral arguments are confusing as to precisely what documents remain disputed.

      . For purposes of Rule 56.01(b)(3), "representative” includes "attorney, consultant, surety, indemnitor, insurer, or agent.”

      .Work product is distinguishable from attorney-client privilege. While the attorney-client privilege protects disclosures by the client to the attorney and is absolute in all but the most extraordinary situations, work product "is designed to prevent a party from reaping the benefits of his opponent's labors ... for the same or a related cause of action.” State

        ex rel. Friedman v. Provaznik, 668 S.W.2d 76, 80 (Mo. banc 1984).

      . For the purposes of this opinion these terms are used interchangeably.

      . A party may initially claim work product protection in response to a discovery request. The party seeking discovery, however, is entitled, at least, to a privilege log if requested.

      . At oral argument, Ford agreed that an in camera review of the disputed documents would be appropriate.

      . Rule 68.01 provides in pertinent part:
      (a) ... Each circuit court in which any action is pending may appoint a master therein. The compensation to be allowed a master shall be charged upon such of the parties, or paid out of any fund or subject matter of the action which is in the custody or control of the court, as the court may direct.

      (e) ... The order of reference to the master may specify or limit the master's powers and may direct the master to report only upon particular issues or to do or perform particular acts or to receive and report evidence only and may fix the time and place foi; beginning and closing the hearings and for the filing of the master's report.