NICELEY (MARC) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: AUGUST 8, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
SUPREME COURT ORDERED NOT PUBLISHED: MAY 13, 2009
(FILE NO. 2008-SC-0642-D)
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE GREGORY M. BARTLETT, JUDGE
ACTION NO. 05-CR-00556
COMMONWEALTH OF KENTUCKY
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BEFORE: THOMPSON AND VANMETER, JUDGES; HENRY,1 SENIOR
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
VANMETER, JUDGE: Marc Niceley appeals from the Kenton Circuit Court’s
judgment sentencing him to fourteen years’ imprisonment after a jury found him
guilty of criminal attempt to commit murder. We affirm.
On June 16, 2005, at 8:50 a.m., Niceley reported to Kenton County
911 emergency services that his wife, Jody Niceley (now Schneider),2 had been
shot but was still breathing. Officers reported to the scene and found Schneider
unclothed, lying on her back, and covered in blood. She had a circular gunshot
wound on the top, back-left portion of her head. Appellant’s loaded .22 caliber
semi-automatic pistol lay on a nearby dresser.
Schneider underwent emergency surgery at the University Hospital in
Cincinnati, where doctors removed the top of her skull to alleviate pressure from
her swelling brain and removed a portion of her brain. Schneider survived her
injuries but has no memory of the time period from the night before she was shot
until several weeks later.
Detectives found no signs of forced entry into the couple’s home; nor
was there evidence that anything was stolen, evidence of a struggle, or evidence
that anyone other than Niceley or Schneider had been in the house. Niceley was
indicted for criminal attempt to commit murder in October 2005. He maintained
that he discovered Schneider’s injuries after returning from an early morning trip
According to Niceley’s brief, he and Jody were divorced after the jury issued a verdict
convicting him in this matter. For clarity, we will refer to Jody in this opinion as Schneider,
although her name was Jody Niceley during the events leading up to Niceley’s conviction.
to a local store for cigarettes. Indeed, Niceley was filmed by a store’s video
surveillance footage buying cigarettes at 8:42 a.m. Nevertheless, after a monthlong trial, a jury found him guilty of criminal attempt to commit murder and
recommended a fourteen-year sentence. The trial court sentenced Niceley
accordingly. This appeal followed.
Hearing Regarding Schneider’s Competency to Testify
KRE3 601(a) provides that “[e]very person is competent to be a
witness except as otherwise provided in these rules or by statute.” Here, Niceley
moved the court to hold a competency hearing to determine whether Schneider
should be disqualified from testifying, arguing that she lacked the capacity to
recollect facts pursuant to KRE 601(b)(2). After a competency hearing in which
the trial judge questioned Schneider, the court found that she was competent to
testify. The court further declined to find that Schneider was incompetent to testify
about the events of June 16, 2005.4 The court denied Niceley’s motion to
reconsider, noting that it would “rule on any objections to questions posed to this
witness when they are made” at trial.
Niceley argues that the trial court denied his right to a full and fair
hearing when, at the competency hearing, the judge questioned Schneider, denied
Niceley the opportunity to cross-examine her, and further declined to consider
Kentucky Rules of Evidence.
The court reasoned that much could happen before the trial began. For example, the judge once
had heard testimony from a witness whose memory had been jogged by hypnosis.
medical testimony regarding Schneider’s capacity to remember the events. We
Again, KRE 601(a) creates a presumption that a witness is competent
to testify. A trial court has the sound discretion to determine whether a particular
witness is competent to testify. Pendleton v. Commonwealth, 685 S.W.2d 549, 551
(Ky. 1985). In Muncie v. Commonwealth, 213 S.W.2d 1019, 1020 (Ky. 1948), the
court reviewed a trial court’s determination that a young girl was competent to
testify against a man who was eventually convicted of attempting to rape her.
Affirming the trial court’s determination of competency based upon the
commonwealth attorney’s examination of the young girl, the court explained:
The general rule, which prevails in this jurisdiction, is
that the question of the competency of a child of tender
years to testify is to be determined by the court after a
careful examination of the child as to age, capacity and
moral accountability. But this does not mean that the
trial judge must himself interrogate the child, although
such is the customary and better practice. In the
Whitehead case, 105 S.W.2d on page 837, we quoted
from 28 R.C.L. p. 465, § 52 to the effect that when a
young child is offered as a witness, “the trial judge,
without the interference of counsel further than he may
choose or allow,” should examine the infant to see if he
or she can qualify as a witness.
Id. at 1021 (internal citations omitted). The court further reiterated language from
an earlier case that “no definite procedural strait-jacket can be outlined for the
examination into the aptitude, capacity of understanding, or intelligence of the
Since no definite procedure exists for examining a witness’s
competency to testify, Kentucky’s appellate courts have affirmed competency
determinations based upon varying examinations. See, e.g., Bart v.
Commonwealth, 951 S.W.2d 576, 579 (Ky. 1997) (trial court heard the direct and
cross-examination of both the witness and her therapist); Wombles v.
Commonwealth, 831 S.W.2d 172, 174 (Ky. 1992) (trial court conducted inchambers interview of witness). Here, after accepting proposed questions from the
Commonwealth and defense counsel, the trial judge personally examined the
witness but declined to hear medical testimony. We cannot say that the trial court
erred by employing this procedure. While Niceley cites to case law emphasizing a
criminal defendant’s right to confront and cross-examine witnesses in general, he
does not cite any authority which requires a trial court to permit a criminal
defendant to cross-examine a witness during a competency hearing. We note that
Niceley exercised his right to cross-examine Schneider at trial.
Further, insofar as Niceley argues that the trial court erred by finding
Schneider to be a competent witness, the trial court did not abuse its discretion,
Jarvis v. Commonwealth, 960 S.W.2d 466, 468 (Ky. 1998). Schneider was fully
capable of answering the trial court’s biographical questions. While she became
visibly confused when asked about the days surrounding the date of the shooting,
Schneider was clearly competent to testify that she did not recall the events.
Although the trial court reserved for trial its rulings on any objections to specific
questions posed to Schneider, Niceley does not challenge any such rulings on
Issue of Schneider’s Competency at Trial
Niceley procured the testimony of neuropsychiatrist Dr. Robert
Granacher regarding Schneider’s brain damage and ability to recollect facts.
Although the trial court did not consider Dr. Granacher’s testimony in determining
Schneider’s competency to testify,5 it permitted Dr. Granacher to testify at trial.
However, the trial court limited the scope of Dr. Granacher’s testimony. During a
break in the trial, the trial judge indicated that during Dr. Granacher’s testimony,
Schneider’s competency as a witness should not be “rehashed.” The trial judge
clarified this point, stating that while Dr. Granacher could testify regarding
Schneider’s physical and neurological deficits, he could not opine whether she was
“competent” to testify, or as to the “veracity,” “credibility,” or “reliability” of her
testimony. Simply put, Dr. Granacher could not “connect the last two dots.”
Niceley argues that by limiting the scope of Dr. Granacher’s trial testimony, the
trial court denied his right to impeach Schneider’s credibility with regard to her
testimony about the events surrounding her injury.6 We disagree.
At the competency hearing, after the trial court orally concluded that Schneider was competent
to testify, based upon Schneider’s testimony, it permitted Niceley to elicit Dr. Granacher’s
testimony for the record.
Niceley couches his argument at times in terms of his challenging Schneider’s competency to
testify. We note that “[c]ompetency is an ongoing determination for a trial court.” B.B. v.
Commonwealth, 226 S.W.3d 47, 49 (Ky. 2007) (quoting Kentucky v. Stincer, 482 U.S. 730, 740,
107 S.Ct. 2658, 96 L.Ed.2d 631 (1987)). “An appellate court may consider a trial court’s
competency determination from a review of the entire record, including the evidence
subsequently introduced at trial.” Id. However, Niceley has not indicated that he renewed his
motion to declare Schneider incompetent to testify after the trial court found that she was
competent to testify. Further, we are unaware of any new facts after the competency hearing
Schneider testified at trial that while she had no memory of the day
she was injured, she knew herself and what she was capable of, and she knew that
she did not shoot herself. As such, she offered limited testimony regarding the
events surrounding her injury.7 Still, the court did not bar Dr. Granacher from
testifying regarding Schneider’s physical and neurological deficits. After all, the
“credibility of a witness testifying to relevant evidence is always at issue[,]” Myers
v. Commonwealth, 87 S.W.3d 243, 246 (Ky. 2002), and evidence tending to show
that “circumstances may have blurred [a] witness’ recollection of perceptions (e.g.,
physical injury, time lapse, etc.) is clearly admissible to reflect upon the credibility
of” the witness. Robert G. Lawson, The Kentucky Evidence Law Handbook §
4.30 (4th ed. 2003). The same is true in the matter sub judice, where Niceley
sought to prove that Schneider’s brain damage rendered her recall unreliable.
Simply put, the opportunity for Niceley to present Dr. Granacher’s
testimony as to Schneider’s physical and neurological deficits was the opportunity
to impeach her credibility. The trial court did not err by denying Dr. Granacher the
opportunity to testify further that, based upon these physical and neurological
deficits, Schneider’s testimony was not credible. A witness’s credibility is an issue
left exclusively to the jury. Fairrow v. Commonwealth, 175 S.W.3d 601, 609 (Ky.
2005). Further, Niceley was given the opportunity to cross-examine Schneider
which would bear upon Schneider’s competency to testify. As such, we construe Niceley’s
second argument as being whether the trial court improperly limited Niceley’s ability to impeach
Schneider’s credibility through Dr. Granacher’s testimony.
Niceley does not argue on appeal any error in this testimony.
regarding possible memory issues, and he does not argue this opportunity was
hindered in any way.
Niceley’s Prior Bad Acts
The week before the trial in this matter, Schneider, with her mother’s
assistance, prepared a list of eleven specific instances when Niceley acted violently
toward her or others, destroyed personal property, or ingested her prescription
medication.8 Niceley argues that the trial court erred by permitting the
Commonwealth to use this writing in questioning Schneider, under the pretext that
it refreshed her memory. He also argues that the trial court erred by failing to
exclude the writing as the Commonwealth did not first disclose it to him under
KRE 404(c). We disagree.
A criminal defendant is entitled to reasonable pretrial notice of the
Commonwealth’s intent to offer KRE 404(b) evidence as part of its case-in-chief.
KRE 404(c). Here, on direct examination the Commonwealth elicited from
Schneider that she had both good and bad memories of her marriage, but there was
no inquiry into specific memories. On cross-examination, Schneider testified in
response to Niceley’s questions that she had believed he loved her. On redirect,
the Commonwealth inquired and Schneider testified regarding her “bad memories”
of Niceley during their marriage, as set forth above. Clearly, the Commonwealth
did not offer this evidence as part of its case-in-chief, and Niceley did not dispute
During a bench conference, the Commonwealth explained that it did not prompt Schneider to
make the list and that it had not seen the list. However, the Commonwealth was made aware of
the list in a meeting with Schneider a few days prior to her testimony.
that the testimony was relevant on rebuttal. Hence, Niceley was not entitled to
notice of the evidence under KRE 404(c).
With regard to the manner in which Schneider’s testimony was
elicited, a writing may be used to refresh a witness’s memory if it is shown that
“‘the witness has a memory to be refreshed,’ and ‘that it needs to be refreshed.’”
Disabled American Veterans, Dept. of Ky., Inc. v. Crabb, 182 S.W.3d 541, 551
(Ky.App. 2005) (quoting Lawson, supra § 3.20). Ultimately, since the evidence
placed before the finder of fact is the witness’s refreshed memory rather than the
document used to refresh that memory, “a writing ‘cannot be read [aloud and
introduced into evidence] under the pretext of refreshing the recollection of the
witness.’” Lawson, supra § 3.20 (quoting Payne v. Zapp, 431 S.W.2d 890, 892
Here, the Commonwealth asked Schneider on redirect whether she
could tell the jury about some of the bad memories she had from her marriage.
When Schneider unfolded a piece of paper, the Commonwealth asked whether
Schneider had memory problems and whether she wrote things down to help her
remember them. Defense counsel objected, arguing that Schneider had to attempt
to testify without the notes before being “refreshed” by them, and that she could
not simply read the notes. The trial court sustained the objection and instructed the
Present memory refreshed is distinct from past recollection recorded, where the evidence is a
writing which contains facts the witness cannot directly state from present memory. Disabled
American Veterans, Dept. of Ky., Inc. v. Crabb, 182 S.W.3d at 551. In the latter, which is not at
issue here, the writing must “have been made or adopted by the witness when the matter was
fresh in the witness’ memory and . . . reflect that knowledge correctly.” KRE 803(5).
Commonwealth that it had to lay the proper foundation before attempting to
refresh Schneider’s memory.
When the redirect examination resumed, the Commonwealth again
asked Schneider whether she could relate to the jury some of the bad memories she
had from her marriage. Schneider began reading verbatim from the list, covering
the first two items on the list.10 Again, the trial court sustained defense counsel’s
objection, instructing the Commonwealth to first establish that Schneider could not
answer the question without the notes. Pursuant to defense counsel’s suggestion,
the trial court also questioned Schneider, outside the jury’s presence, about when
and how the list was made, and by whom.11 Following this examination, the trial
court reiterated that although the Commonwealth could use the writing to refresh
Schneider’s memory, she could not read from the writing.
When the Commonwealth resumed its questioning, Schneider testified
about an item on the list which stated that “it was not true that she didn’t want to
go out of the house.” When Schneider again began reading directly from the list
while testifying about a time when Niceley broke her cell phone, the trial court
again sustained defense counsel’s objection. The redirect examination resumed,
and Schneider testified about a time when Niceley took and ingested her
The first item was that Schneider once got her hair cut and Niceley punched her and held her
head under water; the second was a time when Niceley broke the bathroom door and had to get a
screwdriver to open it and let Schneider out.
This in camera review was likely unnecessary since it is “settled that ‘[a]nything may in fact
[be used to] revive a memory: a song, a scent, a photograph, an allusion, even a past statement
known to be false.’” Lawson, supra § 3.20 (quoting Hoffman v. United States, 87 F.2d 410,
411 (9th Cir. 1937)). However, defense counsel was adamant at trial that the author and the
timing of the writing were relevant, perhaps confusing the requirements for past recollection
recorded, see, supra note 9.
prescription valium. While she was attempting to testify about a time when she
was in the car with Niceley and he pulled a gun on another motorist, the trial court
sustained defense counsel’s objection regarding whether the Commonwealth could
impeach Schneider’s testimony. The Commonwealth ended its redirect
In short, our review of Schneider’s testimony shows that the trial court
sustained each of defense counsel’s objections to the manner in which the writing
was used to refresh Schneider’s memory. Further, to the extent that Niceley argues
that Schneider’s memory was not truly refreshed by the writing, we note that he
did not advance this specific argument below. However, even if we assume that
Schneider’s memory was not refreshed, and she was simply parroting what she
read from the list, any error was harmless. Niceley was given the opportunity to
cross-examine Schneider regarding her testimony about bad memories from her
marriage. Further, the “refreshed” testimony lasted a total of no more than twenty
minutes (excluding bench conferences and the in camera hearing) during a monthlong trial. Niceley is not entitled to relief on appeal.
The Kenton Circuit Court’s judgment is affirmed.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Robert W. Carran
Attorney General of Kentucky
James C. Maxson
Assistant Attorney General