DAVID JOSEPH ADAMS V. COMMONWEALTH OF KENTUCKY
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RENDERED:
January 16, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 96-CA-1663-MR
DAVID JOSEPH ADAMS
APPELLANT
APPEAL FROM HARLAN CIRCUIT COURT
HONORABLE RON JOHNSON, JUDGE
ACTION NO. 96-CR-51
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
* * * * * * * *
BEFORE:
GUDGEL, CHIEF JUDGE; GARDNER and GUIDUGLI, Judges.
GARDNER, JUDGE:
David Joseph Adams (David) appeals from his
conviction in Harlan Circuit Court for possession of a controlled
substance in the first degree and possession of drug paraphernalia.
David argues on appeal that the circuit court incorrectly refused
to allow him to impeach one of the Commonwealth's witnesses.
have reviewed the record and have found no error.
We
Thus, we affirm.
David's conviction stems from events occurring on April
15, 1995.
Officers Joe Eldridge and John Skrock of the Cumberland
City Police Department observed a car coming towards them with its
lights on high beam.
The driver did not dim the bright lights as
the car approached them.
Officer Skrock followed the vehicle and
noted that it swerved a little.
the vehicle.
As a result, the officers stopped
Skrock approached the driver's side of the vehicle
and smelled alcohol on the breath of Deborah Adams (Deborah) who
was driving the vehicle.
test which she failed.
He administered to her a field sobriety
As a result, she was placed under arrest.
David, the passenger, also failed a sobriety test, and he was
arrested for public intoxication.
The officers searched both occupants of the car and also
searched
the
passenger
compartment
of
the
vehicle.
Officer
Eldridge searched the passenger side and found a plastic cellophane
cigarette wrapper with a white powder wrapped in it.
searched the driver's side and discovered a knife.
Skrock
They switched
sides of the vehicle to double check their work, and on this second
check, Skrock found under the seat, a small metal tube, which he
believed was a crack pipe.
The object contained some white
residue.
As a result of this incident, David was indicted on
January 25, 1996.
He was indicted for one count of possession of
a controlled substance in the first degree, one count of possession
of drug paraphernalia and one count of possession of a controlled
substance
in
an
improper
motion
to
On
dismiss
May
count
7,
1996,
three
of
the
Commonwealth
filed
indictment.
The trial court on May 8, 1996 ordered this count
dismissed.
a
container.
the
David's case was consolidated with Deborah's case.
The trial before a jury occurred on May 14, 1996.
The
jury found David guilty of possession of cocaine and possession of
-2-
drug paraphernalia.
for
the
cocaine
The jury recommended a sentence of five years
possession
and
twelve
months
for
the
paraphernalia possession, said sentences to run concurrently.
drug
The
court sentenced David in accordance with the jury's recommendation.
This appeal followed.
David
contends
that
the
trial
court
erred
to
his
substantial prejudice and denied his federal constitutional right
to cross-examine a witness when it refused to allow him to question
Officer Skrock, a witness for the Commonwealth, about his dismissal
from the Cumberland police department and alleged bad acts by him
which led to his dismissal.
We have uncovered no error.
Specifically, David's counsel asked Skrock on crossexamination why he was no longer employed by the Cumberland police
department. An objection was raised and a bench conference ensued.
David's
counsel
stated
that
he
sought
to
impeach
Skrock's
credibility but conceded that to his knowledge, Skrock had not been
formally accused.
The court stated that under the rules, unless
counsel could show that Skrock had been convicted, he could not
bring this evidence in to impeach his credibility.
The court
refused to allow David's counsel to present this evidence to the
jury but permitted him to put on the evidence by avowal.
The court
instructed Skrock regarding his fifth amendment rights.
Skrock
contacted his attorney by telephone prior to testifying on avowal.
On avowal, Skrock testified that the letter he received
from
the
Mayor
of
Cumberland
stated
that
he
ordinances and policies of the police department.
-3-
disobeyed
the
Counsel asked
Skrock for more details, but Skrock citing advice of counsel,
stated that was all he could say.
Skrock said that he could not
testify about specific allegations on advice of counsel. He stated
that he had filed a civil action in federal court and that there
were no formal charges pending against him as a result of his
employment with the police department.
Generally, Kentucky Rule of Evidence (KRE) 608 provides
that the credibility of a witness may be attacked or supported by
evidence in the form of opinion or reputation, but subject to the
limitation that the evidence may refer only to general reputation
in the community.
Under the version of KRE 608 adopted, there
exists no authorization in the current law for impeachment of
witnesses through cross-examination on specific acts.
Robert G.
Lawson, The Kentucky Evidence Law Handbook, ยง4.25 p. 207 (3rd ed.
1993).
KRE 609(a) states,
For the purpose of reflecting upon the
credibility of a witness, evidence that
the witness has been convicted of a crime
shall be admitted if elicited from the
witness or established by public record
if denied by the witness, but only if the
crime
was
punishable
by
death
or
imprisonment for one (1) year or more
under the law under which the witness was
convicted.
The identity of the crime
upon which conviction was based may not
be
disclosed
upon
cross-examination
unless the witness has denied the
existence of the conviction. However, a
witness against whom a conviction is
admitted under this provision may choose
to disclose the identity of the crime
upon which the conviction is based.
Under KRE 611(b), "[a] witness may be cross-examined on
any
matter
relevant
to
any
issue
-4-
in
the
case,
including
credibility.
In the interests of justice, the trial court may
limit cross-examination with respect to matters not testified to on
direct examination." Generally, a witness cannot be cross-examined
about a matter which is collateral and irrelevant to the issue.
Shirley v. Commonwealth, Ky., 378 S.W.2d 816, 818 (1964).
In the case at bar, the circuit court properly prohibited
David's counsel from questioning Skrock before the jury about his
firing from the Cumberland police department and the specific
reasons for it. Under KRE 608 and 609, David's counsel's questions
about Skrock's dismissal from the police department were not
appropriate for impeachment.
Skrock had not been formally charged
with any crime, and certainly no conviction had occurred.
Counsel
went beyond asking merely about reputation in the community and was
attempting to elicit answers about specific alleged wrongful acts
that Skrock may have undertaken as a police officer.
The court
correctly noted that Skrock's own fifth amendment interests were in
jeopardy.
Further, counsel failed to show any real relevance of
this questioning to the instant case.
No concrete evidence was
presented that Skrock had done anything wrong in handling David's
case.
The cases cited by David are fundamentally distinguishable
as they concerned relevant information unique to those cases which
specifically impacted on a witness's believability.
Some of the
evidence in those cases had not been disclosed to defendants by the
prosecution prior to trial.
In the case at bar, the circuit court
was not faced with such a situation.
-5-
For the foregoing reasons, the judgment of the Harlan
Circuit Court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Ann T. Eblen
Louisville, Kentucky
A. B. Chandler III
Attorney General
Amy F. Howard
Assistant Attorney General
Frankfort, Kentucky
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