TOMMY G. LAMBERT, JR. V. COMMONWEALTH OF KENTUCKY
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IMPORTANT NQTiCE
NOT TO BE P UBLISHED OPINION
THIS OPINION IS DESIGNATED 'NOT TO BE
PUBLISHED . f' PURSUANT TO THE RULES OF
CIVIL PROCEDURE PROMUL GA TED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOTBE
CITED OR USED AS A UTHORITYINANY OTHER
CASE INANY COURT OF THIS STA TE.
RENDERED : OCTOBER 19, 2006
NOT TO BE PUBLISHED
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2005-SC-000388-MR
TOMMY G. LAMBERT, JR.
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APPELLANT
ON APPEAL FROM KNOX CIRCUIT COURT
HONORABLE RODERICK MESSER, JUDGE
NO. 04-CR-00076-001
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
On March 4, 2004, Appellant, Tommy Gene Lambert, Jr., entered "John
Rays," a business in Knox County and robbed the proprietor, Ray Messer. Appellant
selected a $3.00 item for purchase and paid Messer with a $5.00 bill. Messer retrieved
a wad of bills, about $130 .00, from his pocket to give Appellant change. Appellant
roughly grabbed the money from Messer's hands, causing Messer to fall down and
injure his hand on a metal table . Appellant fled the scene with the money.
Because Appellant had introduced himself to Messer while shopping at
John Rays on a prior occasion, Messer knew Appellant's identity and was able to
provide the sheriff with his name and address . The sheriff located Appellant and
brought him to the hospital where Messer was being treated for the cut on his hand.
Messer verified that Appellant's was the perpetrator of the crime . Consequently,
Appellant was indicted on charges of first degree robbery and being a persistent felony
offender in the first degree . Upon a jury verdict Appellant was convicted of both
offenses . In accordance with the jury's recommendation, Appellant was sentenced to
twenty years imprisonment . He appeals to this court as a matter of right.'
Appellant's sole claim of error concerns the prosecutor's questioning of
Appellant on cross-examination . Both Messer and the sheriff testified to certain
statements made at the hospital when Messer identified Appellant . When Appellant's
testimony differed with that of Messer and the sheriff, the prosecutor asked Appellant if
Messer and the sheriff were lying. Appellant contends that the prosecutor's attempt to
cause Appellant to characterize these two witnesses' testimonies as lies requires
reversal of his convictions .
We first note that no contemporaneous objection was made to the
prosecutor's questions, rendering the issue unpreserved .2 However, Appellant asserts
that the prosecutor's improper questioning constituted palpable error.3 The
Commonwealth concedes error in the solicitation of testimony that requires
characterization of other witnesses' testimony as lies, but argues that the error was
harmless . We disapprove of the tactics of the prosecutor, but conclude that the error
was not palpable .
Appellant's reliance on Howard v. Commonwealth s and Moss v.
Commonwealth 6 is misplaced . Howard, indeed, established that asking a witness to
characterize another witness's testimony as a lie exceeds the proper bounds of cross' Ky. Const . ยง 110(2)(b) .
2 RCr 9 .22.
RCr 10.26.
4 RCr 9 .24.
5 227 Ky. 142, 12 S .W.2d 324 (1928).
6 949 S .W.2d 579 (Ky. 1997) .
examination . However, in that case, the error was preserved by contemporaneous
objection, and there were numerous other errors which, cumulatively, deprived Howard
of a fair trial. In Moss, this Court reaffirmed the standard for proper cross-examination
as set out in Howard and further stated :
A witness should not be required to characterize the
testimony of another witness, particularly a well-respected
police officer, as lying. Such a characterization places the
witness in such an unflattering light as to potentially
undermine his entire testimony. Counsel should be
sufficiently articulate to show the jury where the testimony of
the witnesses differ without resort to blunt force.'
However, in Moss, we also stated that "Appellant's failure to object and our failure to
regard this as palpable error precludes relief."$ Thus, we explicitly rejected the
contention that such an error was palpable .
However, in another case where the error
was preserved, a deeper analysis would be required to determine whether the error was
prejudicial or harmless . Nevertheless, in this case Moss is dispositive .
Accordingly, Appellant's convictions are affirmed .
All concur.
_Id . at 583.
8 Id . at 583 .
COUNSEL FOR APPELLANT :
Donna L. Boyce
Appellate Branch Manager
Department of Public Advocacy
Suite 302, 100 Fair Oaks Lane'
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Gregory D. Stumbo
Attorney General of Kentucky
Room 118, Capitol Building
Frankfort, KY 40601
Gregory C . Fuchs
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
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