CUNNINGHAM (GARY) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: SEPTEMBER 26, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM MASON CIRCUIT COURT
HONORABLE LEWIS D. NICHOLLS, JUDGE
ACTION NO. 07-CR-00004
COMMONWEALTH OF KENTUCKY
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BEFORE: CAPERTON AND WINE, JUDGES; LAMBERT,1 SENIOR JUDGE.
WINE, JUDGE: Gary Cunningham (“Cunningham”) appeals his jury conviction
in the Mason Circuit Court for one count of resisting arrest. The jury found
Cunningham not guilty of a separate count, third-degree assault. Per the jury’s
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
recommendation, the trial court sentenced Cunningham to eight months’
incarceration and a fine of $500.00. Finding no error, we affirm.
The charges arose from a November 26, 2006, incident which
occurred outside a movie theater in Maysville, Kentucky. Witness and theater
employee, Aaron Caskey (“Caskey”), testified that Cunningham was pacing in
front of the theater yelling threats that he would kill all of the employees. Caskey
further testified that Cunningham’s girlfriend, Erica Chambers (“Chambers”), also
an employee at the theater, was trying to calm Cunningham. Caskey testified that,
at some point, Cunningham physically struck Chambers.
Officer Colin Thomas (“Officer Thomas”), a Maysville police officer,
worked part-time security for the cinema. While on duty, Officer Thomas received
a call on his personal cellular phone from a theater employee. Upon arriving at the
cinema, Officer Thomas spoke to the manager who told him that Cunningham and
Chambers were involved in a domestic dispute. According to the trial testimony
from the Commonwealth’s witnesses, Cunningham “went ballistic” when Officer
Thomas approached him. Cathy Warder (“Warder”), a shopper at a nearby KMart, testified that Cunningham “went off” and began hitting and slugging at the
officer. Officer Thomas told the jury that Cunningham was cussing and
threatening to kill him when he was not on duty. Cunningham and Officer Thomas
struggled. Cunningham struck Officer Thomas with an elbow. Officer Thomas
also injured his wrist.
On the other hand, Chambers’ testimony was quite different than that
of the Commonwealth’s witnesses. She testified that she and Cunningham were
not fighting with each other that afternoon. Chambers stated that when Officer
Thomas arrived, he told Cunningham he was going to jail and to place his hands on
the car. Chambers testified that Cunningham asked why he was being arrested and
Officer Thomas punched him in the face. Chambers stated that she never saw
Cunningham hit Officer Thomas and she did not think that he could have because
he was in handcuffs.
Cunningham’s cousin, Marcus Breckenridge (“Breckenridge”), who
accompanied Cunningham that afternoon, testified that Officer Thomas sprung out
of his cruiser and told Cunningham that he was going to jail. Similarly,
Cunningham testified that he drove to the theater to confront Stephanie Dickerson,
and to tell her to stop spreading rumors that he was cheating on Chambers. He
denied hitting Chambers. Cunningham testified that he only resisted Officer
Thomas because he felt that he was being assaulted and wanted to know why he
was under arrest. Like Chambers and Breckenridge, Cunningham testified that
Officer Thomas attempted to arrest him immediately upon arriving at the scene.
Cunningham further claimed he never hit Officer Thomas but in fact, Officer
Thomas hit him in the jaw. An ambulance was called to the scene but
Cunningham refused treatment.
On appeal, Cunningham argues the trial court erred when it allowed
the Commonwealth to compel Chambers to comment on the credibility of the
Commonwealth’s witness, Aaron Caskey. During the cross-examination of
Chambers, the following questioning occurred:
Commonwealth: You said there was no arguing; are you
aware that Mr. Caskey testified that he saw Mr.
Cunningham strike you in the face?
Chambers: I was not aware that he had said that.
Commonwealth: Would he have any reason to lie about
Defense counsel objected, maintaining that the line of questioning was improper.
The trial court sustained the objection and asked the Commonwealth to rephrase.
The following exchange then occurred:
Commonwealth: Is there anything in your relationship
with Mr. Caskey that would cause him to say that he
slapped you, that he saw Gary Cunningham slap you if he
Chambers: He shouldn’t have reason. I never did
anything wrong to him.
It is undisputed that Cunningham’s claim of error is unpreserved as defense
counsel did not object after the prosecutor rephrased the question. In the
alternative, Cunningham asserts that this improper questioning should be reviewed
under the palpable error standard. We disagree.
The former Court of Appeals set forth the standard for crossexamination in Howard v. Commonwealth, 227 Ky. 142, 12 S.W.2d 324, 329
Although to aid in the discovery of the truth reasonable
latitude is allowed in the cross-examination of
witnesses, and the method and extent must from the
necessity of the case depend very largely upon the
discretion of the trial judge, yet, where the crossexamination proceeds beyond proper bounds or is being
conducted in a manner which is unfair, insulting,
intimidating, or abusive, or is inconsistent with the
decorum of the courtroom, the court should interfere
with or without objection from counsel. The court not
only should have sustained the objections to this
character of examination, but should have admonished
counsel against such improper interrogation.
In Howard, the questions at issue involved the Commonwealth’s Attorney asking
the defendant about the testimony of other witnesses, in one instance asking, “I am
asking you if what Maud Denton swore is a lie.’” Id. The Court in Howard
concluded that the lower court “not only should have sustained the objections to
this character of examination, but should have admonished counsel against such
improper interrogation.” Id. at 329. The Kentucky Supreme Court reaffirmed this
holding in Moss v. Commonwealth, 949 S.W.2d 579, 583 (Ky. 1997).
In this case, however, the trial court sustained Cunningham’s
objection to the question and admonished the prosecutor to rephrase the question.
The Commonwealth rephrased the question asking, “Is there anything in your
relationship with Mr. Caskey that would cause him to say that he [Cunningham]
slapped you, that he saw Gary Cunningham slap you if he didn’t?” As rephrased,
the question does not go to the credibility of another witness as prohibited by
Howard and Moss, but rather inquires about any bias that might exist between
Chambers and Caskey. A question to illicit bias is perfectly acceptable on cross-
examination. Thus, even if the issue was properly preserved, the trial court did not
err by allowing the question.
Accordingly, we affirm the conviction of the Mason Circuit Court.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Erin Hoffman Yang
Assistant Public Advocate
Attorney General of Kentucky
Heather M. Fryman
Assistant Attorney General