QUINCY BAILEY V. COMMONWEALTH OF KENTUCKY
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2006-SC-000785-MR
QUINCY BAILEY
V.
ON APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE R. JEFFREY HINES, JUDGE
NO . 04-CR-00361
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
The McCracken Circuit Court convicted Appellant, Quincy Bailey, of
murder and sentenced him to life in prison . He appeals to this Court as a
matter of right, raising seven errors for our review . For the reasons set forth
herein, we affirm.
Background
Appellant was convicted of killing Billy Askew. Appellant and Askew
were at an area of Paducah known as "The Set" on the evening of August 2,
2004 . A large crowd was present. Askew, angry that Bailey had refused to sell
drugs for Askew's gang, confronted Appellant. After pulling a gun, Askew then
patted down Appellant's pockets and removed $500. He ordered Appellant to
leave and threatened to kill him if he returned to the area. Appellant left, but
returned about forty-five minutes later to pick up his wife at her request, as
she was fearful after the prior confrontation. Appellant carried a loaded .9mm
pistol in his pocket .
According to Appellant's testimony, as he walked around The Set looking
for his wife, he spotted Askew. He testified that Askew approached him quickly
and flashed a weapon tucked into his waistband. He drew his own weapon and
shot Askew in the leg to stop him. However, as Askew continued to advance,
Appellant continued to fire shots. He then fled. Two other defense witnesses
testified that just prior to Appellant's arrival, Askew made comments about
Appellant to the effect that he would harm Appellant if he returned.
Uvander Hunter, Askew's cousin, contradicted this version of events .
She testified that Askew was talking to friends when Appellant returned to The
Set, and that he did not see Appellant approaching him from behind.
Immediately before the first shot was fired, she heard Appellant say, "Now
what? I'm back ." Askew only fired his weapon after Appellant had fired,
according to Hunter . Two other witnesses testified that Askew was lying on his
stomach firing his gun, not advancing towards Appellant .
The Commonwealth also called Johnny Harmon, who had given a prior
recorded interview to police . In that statement, Harmon said that Appellant
walked towards the victim and said: "Do you want to pull a pistol? Or wanna
pull a pistol, or gun, or something?" Harmon then heard gunshots . In the
interview, Harmon told police that Askew "never knew what was coming." At
trial, however, Harmon recanted his entire prior statement, saying that he was
coerced into making it after investigators told him they could "make stuff go
away." Harmon interpreted this statement to mean the police had information
upon which they could potentially bring criminal charges against him. He
testified that he did not see anything that night, despite the fact that he
identified himself as an eyewitness to police officers responding to the scene
and gave a brief interview to police the day after the incident. Harmon, though,
also admitted that he and his family were threatened about testifying at the
trial. Due to the continual need to refresh Harmon's memory with the recorded
statement, the jury heard its substance, though it was not introduced into
evidence .
The physical evidence established that Askew died of multiple gunshot
wounds, though it was undetermined in what order the shots were fired.
Gunshot residue testing revealed that he was twice shot from a distance of two
feet or less.
Following the shooting, Uvander Hunter took Askew's gun from the
scene, though she gave it to investigators about two days later. Appellant fled
Paducah and was apprehended a year later in Texas . Following a jury trial, he
was found guilty of murder and sentenced to life in prison . This appeal
followed.
Continuance
Appellant first complains that he was entitled to a continuance due to
the Commonwealth's failure to timely disclose all discoverable material.
Defense counsel's motion, filed the day before trial, was denied. We find no
error in the trial court's decision.
The basis of defense counsel's motion to continue was that the
Commonwealth failed to provide complete discovery. A review of the hearing on
the motion, however, reveals that defense counsel's complaints were primarily
directed towards the manner of disclosure and a supposed lack of organization
of the discovery materials . Ultimately, the trial court found that defense
counsel was provided all discoverable material in a timely fashion, except for
three photographs of the crime scene and a handwritten map made by
Detective Scott Aycock. The photographs depict a crowd around the crime
scene. All names of all persons depicted in the photographs were provided to
defense counsel, except for one, Beatrice White. Ms . White did not witness the
crime, but arrived shortly after the police to look for a family member . None of
these photographs were admitted at trial.
A continuance will be granted upon a showing of sufficient cause . RCr
9 .04 . The decision to grant a continuance lies within the sound discretion of
the trial court, and it should be based on the particular circumstances of the
case . Snodgrass v. Commonwealth, 814 S .W.2d 579, 581 (Ky. 1991), overruled
on other grounds bv- Lawson v . Commonwealth , 53 S .W.3d 534, 542 (Ky.
2001) .
Factors the trial court is to consider in exercising its
discretion are: length of delay; previous continuances ;
inconvenience to litigants, witnesses, counsel and the
court; whether the delay is purposeful or is caused by
the accused; availability of other competent counsel;
complexity of the case; and whether denying the
continuance will lead to identifiable prejudice .
The circumstances of this case did not warrant a continuance . Defense
counsel failed to articulate any identifiable prejudice resulting from the late
disclosure, and we find none. Detective Aycock's handwritten map is not
exculpatory, nor does it constitute an "official police report" pursuant to RCr
7 .24 . Also, the photographs of the crime scene bore no exculpatory value, but
merely depicted the crowd that had gathered after the shooting . Defense
counsel was provided with the names of all persons present in the photographs
months before trial, except for Ms. White. Ms. White was not at The Set when
the shooting occurred, but only came to the area upon hearing of the shooting.
Further, when questioned by police, she stated that she did not witness or
know anything about the shooting.
Although no prior continuances had been requested or ordered, this
motion was filed the day before trial was to commence . The Commonwealth
and the court were prepared to begin the following day and several out-of-state
witnesses were scheduled to appear. Considering the lack of any identifiable
prejudice to Appellant as a result of the untimely disclosure of the photographs
and handwritten map, we find no abuse of discretion in the trial court's
decision to proceed with trial. See Moody v. Commonwealth , 170 S .W .3d 393,
396 (Ky. 2005) . There was no error.
Jury Instructions
Appellant next challenges the jury instructions on four grounds: (1) that
the initial aggressor and provocation qualifications were unsupported by the
evidence ; (2) that these qualifications were improperly presented as separate
instructions; (3) that the self-protection instruction was improperly presented
after the offenses to which it applied; and (4) that the self-protection
instruction failed to include a statement that Appellant had no duty to retreat.
Upon review of the instructions, we find no error.
The evidence supported an initial aggressor instruction. A defendant is
not justified in using physical force against another when the defendant acted
as the initial aggressor . KRS 503 .060(3) . The official commentary to KRS
503.050 states that this instruction applies where a defendant, "not having an
intent to cause death or serious physical injury, starts an encounter with
another and subsequently finds himself believing in a need to use physical force, perhaps deadly, to protect himself from the other's attack ."
Appellant had an embarrassing encounter with Askew and left The Set,
fearful and humiliated . He was aware that Askew was carrying a weapon and
later returned to The Set with his own loaded handgun. According to Uvander
Hunter, Appellant surprised Askew and said, "Now what? I'm back ." The two
then exchanged gunfire, although she did not know who fired first . Harmon
testified that he told police he had overheard a similar comment . Appellant
himself testified that he shot first at Askew's leg, after seeing Askew's weapon,
and that Askew then fired back. Appellant continued to fire his weapon . It is
entirely reasonable, based on these facts, to believe that Appellant returned to
The Set to exact revenge on Askew, and that he approached him in a
threatening manner . When Askew showed his gun, Appellant then believed it
necessary to protect himself with the use of physical force . Cf. Stepp v .
Commonwealth , 608 S .W .2d 371, 374 (Ky. 1980) (it was reversible error to
deliver initial aggressor instruction where defendant and victim had altercation,
victim left but later returned with a loaded weapon, and there was no evidence
that defendant provoked or initiated second encounter) .
A slightly different interpretation of these same facts supports the
provocation qualification instruction as well . The comment heard by Ms.
Hunter is reasonably interpreted as a taunt. Harmon told investigators that as
Appellant came up to Askew, he said: "Do you want to pull a pistol? Or wanna
pull a pistol, or gun, or something?" This statement is also fairly understood
as an attempt to goad Askew into an altercation . KRS 503.060(2) prohibits the
justification of self-defense where "the defendant, with the intention of causing
death or serious physical injury to the other person, provokes the use of
physical force by such other person[.]" Based on Appellant's taunts and the
fact that he returned to The Set armed, the jury could reasonably conclude
that Appellant provoked Askew into a physical altercation with the intention of
killing or seriously injuring him.
The trial court's duty is to correctly instruct the jury on every theory of
the case supported by the evidence . RCr 9.54(1) ; Taylor v. Commonwealth ,
995 S .W.2d 355, 360 (Ky. 1999) . Where the evidence is convoluted and does
not "conclusively establish [the defendant's] state of mind at the time he killed
the victim, it is appropriate to instruct on all degrees of homicide and leave it to
the jury to sort out the facts and determine what inferences and conclusions to
draw from the evidence." Commonwealth v. Wolford, 4 S .W .3d 534, 539-40
(Ky. 1999) . In this case, the testimony supported many different conclusions
as to Appellant's state of mind at the time he returned to The Set and killed
Askew . There were contradictory accounts as to who fired the first shot. The
trial court correctly included initial aggressor and provocation qualifications in
its instructions to the jury. There was no error.
Appellant further argues that the instructions on these qualifications to
self-protection, as well as the wanton or reckless belief qualification
instruction, were erroneously presented to the jury as separate, stand-alone
instructions . According to Appellant, the qualification instructions should
have been part of the self-protection instruction itself. While initial aggressor
and provocation qualification instructions are only proper when a self-defense
instruction is given, there is no requirement that the instructions be presented
on the same page . Reading this group of justification instructions together,
and as a whole, they are neither confusing nor misleading . Thomas v.
Commonwealth, 412 S .W.2d 578, 581 (Ky. 1967) . The qualification
instructions make clear reference to the self-defense instruction . Moreover,
Appellant has failed to identify any prejudice resulting from the presentation of
the instructions . Commonwealth v . Higgs , 59 S .W .3d 886, 890 (Ky. 2001) (in
order to warrant reversal based on erroneous jury instructions, both error and
prejudice must be demonstrated) . There was no error.
In a similar vein, Appellant argues that the self-protection instruction
and its accompanying qualification instructions should have been presented
before the offense instructions. The self-protection instruction made
unambiguous reference to the offense instructions, and the purpose and effect
of the self-protection instruction was clearly stated . The jury is assumed to be
of sufficient intelligence to understand that the instructions are to be read as a
whole . Bowman v . Commonwealth, 284 Ky . 103, 143 S .W .2d 1051, 1053
(1940) . Further, we discern no prejudice to Appellant flowing from the order in
which instructions were presented. There was no error.
Lastly, Appellant claims error where the self-protection instruction did
not include a statement that no duty to retreat existed. KRS 503.030(4)
requires such an instruction, though this subsection was not enacted until
three years after Askew's death. Appellant nonetheless argues that he was
prejudiced by this omission.
Because KRS 503 .030(4) was not in effect at the time of the offense and it
has not been given retroactive applicability, our holding in Hilbert v.
Commonwealth controls . 162 S.W.3d 921 (Ky. 2005) . In Hilbert, we held that
Kentucky "[follows] the principle `that when the trial court adequately instructs
on self-defense, it need not also give a no duty to retreat instruction .' Id . a t
926 (internal citations omitted) . See also Rodgers v. Commonwealth ,
S .W .3d
(Ky. 2009) ("We decline to revisit Hilbert, therefore, a decision not
even four years old, and continue to hold that as enacted in 1975 the Penal
Code incorporated the pre-code rule that while Kentucky does not condition the
right of self-defense on a duty to retreat, retreat remains a factor amidst the
totality of circumstances the jury is authorized to consider and a `no duty to
retreat' instruction is not required .") . See also Wines v. Commonwealth ,
S .W .3d
(Ky. 2009) ("Nor [is] a `no duty to retreat' instruction required by
pre-existing law or by the constitutional right to present a defense .") . The jury
was correctly instructed on the theory of self-protection. Also, the fact that
Appellant had no duty to retreat was made very clear during defense counsel's
closing statement. We find no prejudice resulting from the trial court's failure
to include a no duty to retreat statement in the jury instructions .
Verdict
Appellant asserts that the verdict was irregular and contradictory and,
therefore, void . The issue is not preserved for review and Appellant requests
palpable error review pursuant to RCr 10.26. As
a basis for this claim,
Appellant points to typographical errors in the instruction packet provided to
the jury and in the verdict form. A review of the facts is necessary to
understanding Appellant's claim.
The jury instructions were numbered in this case, with Instructions 1
and 2 relating to the presumption of innocence and statutory definitions,
respectively . Four homicide instructions were given: murder (Instruction 3) ;
first-degree manslaughter (Instruction 4) ; second-degree manslaughter
(Instruction 5) ; and reckless homicide (Instruction 6) . Instructions 7 through
11 contained the self-protection instruction and its accompanying qualification
instructions (wanton or reckless belief, initial aggressor, and provocation) . The
final instruction required a unanimous verdict. Each instruction was printed
on a separate sheet of paper. The trial court correctly read the jury
instructions to the jury and a packet of instructions was provided to each
10
juror. However, in that packet, the first-degree manslaughter instruction was
erroneously placed before the murder instruction. That is, the first six written
instructions were given to the jury in the following order: Instruction 1
(presumption of innocence) ; Instruction 2 (definitions) ; Instruction 4 (firstdegree manslaughter) ; Instruction 3 (Murder) ; Instruction 5 (second-degree
manslaughter) ; and Instruction 6 (reckless homicide) . Undoubtedly, this was
an administrative mistake .
Unfortunately, the verdict form compounded this error. The written
verdict form directed the jury to execute only one of five possible verdicts. The
jury executed, and the foreperson signed, the first verdict statement: "We, the
jury, find the Defendant, Quincy D . Bailey, guilty of Murder under Instruction
No. 4 ." As stated above, Instruction 4 relates to first-degree manslaughter, not
murder, though it was the first homicide instruction in the packet. Thus, on
the face of the verdict form, two equally plausible interpretations exist: that the
jury found Appellant guilty of murder, though the instruction erroneously
refers to Instruction No. 4; or that the jury found Appellant guilty of firstdegree manslaughter under Instruction No. 4, though the instruction
erroneously refers to murder .
The ambiguity in the verdict form was not recognized at trial. The trial
court accepted the verdict without objection from either party and polled the
jury as to their finding of murder. Judgment was entered . Apparently, the
trial court later realized the error in the verdict and issued an order the
following week which stated: "The jury was polled as to their finding. Although,
there is a typographical error in the verdict form, that both the Commonwealth
and the defense counsel over looked (sic), it does not effect (sic) the outcome of
the jurors (sic) clear verdict of murder." Appellant's final sentencing occurred
about a month later and, again, defense counsel made no objection regarding
the verdict form.
Where a jury's verdict is unclear or open to multiple interpretations, a
criminal defendant's substantial rights are certainly implicated. For this
reason, we will review Appellant's claim of palpable error, though completely
unpreserved for appellate review . See Brown v. Commonwealth , 445 S .W.2d
845, 847-48 (Ky. 1969) (patent ambiguity injury's recommendation of death
sentence required reversal, even though objection was not made prior to jury's
discharge or in subsequent motion for a new trial) .
It has long been recognized in Kentucky that failure to object to an
inconsistent, ambiguous or unclear verdict constitutes a waiver for purposes of
appeal :
If a verdict is not as specific as desired, the correct
practice is to then and there, before the jury is
discharged, have them reform it. Allowing the jury to
be discharged without objection, and without motion
to have them correct or extend their verdict, will be
deemed a waiver of formal defects in it . And it must
then affirmatively appear that the substantial rights of
the accused have been prejudiced by the informality.
The presumption will not be indulged that his rights
were prejudiced .
Gillum v. Commonwealth , 121 S .W. 445, 446 (Ky. 1909) . This rule balances
the competing interests of the defendant and the public: "Certainty is highly
12
important to a proper administration of the criminal law; but it should not go
so far as to sacrifice substance to form ." Hays v. Commonwealth , 12 Ky.L.Rptr.
611, 14 S .W . 833, 834 (1890) (verdict correctly adopted by the court though it
failed to specify if defendant was found guilty of murder or manslaughter,
where jury's corresponding recommendation as to punishment could only
apply to manslaughter) . "This [rule] prevents a dissatisfied party from
misusing procedural rules and obtaining a new trial for an asserted
inconsistent verdict." Beaty v. Commonwealth , 125 S .W.3d 196, 215 (Ky.
2003), quoting Lockard v. Mo . Pac. R .R. Co . , 894 F.2d 299, 304 (8th Cir. 1990) .
This Court has identified three exceptions to the requirement that any
defect in the verdict is waived if not addressed while the jury is still
empanelled . A reviewing court will consider a claim, despite a failure to object
before the jury is discharged, where the verdict fails to determine a particular
claim . Smith v. Crenshaw, 344 S.W .2d 393, 395 (Ky. 1961) . We will likewise
consider such an unpreserved claim where the verdict is "so ambiguous that it
cannot be ascertained what determination has been made of the claim[.]" Id.
Finally, if the unpreserved claim alleges both a substantive error and it was
presented to the trial court, though sometime after the jury was discharged, it
will nonetheless be considered on appeal. Caretenders, Inc. v. Commonwealth ,
821 S.W .2d 83, 85 (Ky. 1991) .
Appellant argues that the verdict in this case is ambiguous and should
be considered on appeal pursuant to the second exception to the preservation
requirement . Accordingly, we must consider whether the verdict form is so
13
ambiguous that the jury's ultimate decision cannot be ascertained. When
making this determination, "the court may make use of anything in the
proceedings that serves to show with certainty what the jury intended, and, for
this purpose, reference may be had, for example, to the pleadings, the
evidence, the admissions of the parties, the instructions, or the forms of verdict
submitted." 75B Am. Jur. 2d Trial fi 1545 (2008).
Here, on its face, the verdict form is open to two distinct interpretations.
However, the jury's intention to find Appellant guilty of murder can be
ascertained from the circumstances of the trial . Contrary to Appellant's
arguments, we believe the jury was aware that manslaughter and murder are
distinct offenses . In its closing arguments, both the Commonwealth and
defense counsel thoroughly explained the degrees of homicide . During the
sentencing phase, repeated and continual reference was made to murder and
the penalties allowed for that offense . See State v . Froiland , 910 So .2d 956,
971 (La.App. 2005) (where verdict form was ambiguous on its face,
"Considering the numerous times that the offense was referred to as theft, as
opposed to theft of goods, we find that the verdict reflects the jury's intent to
find the defendant guilty of theft, not theft of goods . . . .") .
Furthermore, when the jury was polled, specific reference was made to
its having "found defendant guilty of murder ." All jurors individually affirmed
that this was, indeed, their verdict. See Bush v. Commonwealth , 839 S .W .2d
550, 556 (Ky. 1992) (informal polling of jury after contradiction in verdict was
noticed, during which all nodded in agreement to foreperson's statement of the
14
jury's intention, cured any defect in the otherwise ambiguous verdict) .
We also find significant the jury's recommended sentence . The jury
originally returned a sentencing recommendation of "25 years to life." The trial
court explained that the allowable sentences for murder were either a term of
years between 20 and 50 years or life imprisonment. KRS 532 .060(2)(a) . The
jury returned a revised recommendation of "life." We believe that, had the jury
intended to convict Appellant of the lesser offense of first-degree manslaughter,
it is improbable that it would then recommend the harshest possible sentence .
Most importantly, we cannot ignore the fact that no objection was made
to the trial court concerning the verdict. Evidently, the typographical error
went unnoticed at trial. However, the trial court sua sponte clarified the verdict
in its order issued a week later. Defense counsel received a copy of this order
and was, therefore, on notice of the verdict's defect. Still, at the final
sentencing proceeding a month later, no objection was made to the verdict.
The trial court specifically asked defense counsel if any lawful reason existed
why sentence should not be imposed, and defense counsel responded in the
negative . We reiterate these circumstances not to highlight the lack of
preservation of this issue, but to evidence the general understanding held by
defense counsel, the Commonwealth, and the trial court, that Appellant was
found guilty of murder, even after the apparent defect was brought to light.
The circumstances surrounding this jury verdict are highly unusual, and
Appellant's arguments implicate the most fundamental rights of a criminal
defendant: the right to a unanimous verdict and the absolute necessity of clear
15
and unambiguous verdicts, particularly in criminal cases . For this reason, we
have undertaken an especially thorough review of the record in this case .
It is our conclusion that the jury intended to find Appellant guilty of
murder . The evidence adduced at trial strongly supported the finding that
Appellant returned to The Set with the intention of killing Askew in revenge .
When polled as to the finding of murder, no juror objected or attempted to
correct the trial court. The jury's recommended sentence reflects a belief that
the crime was so egregious as to warrant the highest possible sentence . Even
after the verdict's deficiency was revealed, all parties proceeded with final
sentencing under the belief that Appellant was found guilty of murder. In light
of these circumstances, the jury's intent can be fairly ascertained. Therefore,
Appellant's claim has been waived and is unpreserved for appellate review .
Beaty, id .
Directed Verdict
Appellant claims that the trial court erred in denying his motion for a
directed verdict of acquittal. When considering a motion for a directed verdict,
"[T]he trial court must draw all fair and reasonable inferences from the
evidence in favor of the Commonwealth . If the evidence is sufficient to induce a
reasonable juror to believe beyond a reasonable doubt that the defendant is
guilty, a directed verdict should not be given ." Commonwealth v. Benham, 816
S .W.2d
186, 187 (Ky . 1991) .
Our duty, as the appellate court, is to determine
"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 ."
Id.
16
There is no doubt that this case was properly submitted to the jury.
Having established that Appellant killed Askew, the primary question for the
jury was the validity of Appellant's claim of self-protection and his state of
mind at the time of the shooting. There was ample evidence upon which to
believe that Appellant returned to The Set to seek revenge. Eyewitnesses
testified that Askew was effectively ambushed and that he only fired his
weapon after Appellant shot him . Circumstantial evidence supported this
conclusion . Appellant returned with a loaded gun . He shot Askew eight times
and then fled the scene. He remained a fugitive for a year. The trial court did
not err in denying Appellant's motion for a directed verdict . See West v.
Commonwealth , 780 S .W.2d 600, 601 (Ky. 1989) ("Only in the unusual case in
which the evidence conclusively establishes justification and all of the elements
of self-defense are present is it proper to direct a verdict of not guilty.") .
Other Claims
Appellant raises five additional claims of error, all of which are without
merit. He asserts that the Commonwealth improperly referred to Harmon's
recorded statement during its closing argument, although it was not admitted
as error. No contemporaneous objection was made and Appellant requests
palpable error review.
Undoubtedly, any supposed error was harmless . The Commonwealth
properly impeached Harmon with his prior inconsistent statement and, in so
doing, was able to convey its substance to the jury. Any subsequent reference
to Harmon's interview was not prejudicial. RCr 10 .26.
17
Appellant claims that the Commonwealth's Attorney misrepresented the
initial aggressor qualification during his closing argument by stating: "If you're
the initial aggressor, then you can't claim self-defense." This is not a
misstatement of the law; counsel simply paraphrased the statute in making his
point. At any rate, the jury instructions correctly stated the initial aggressor
qualification, curing any supposed error. See Matheney v. Commonwealth , 191
S.W.3d 599, 606 (Ky. 2006) .
Reversible error did not occur where the Commonwealth's Attorney twice
told Harmon that he "[wasn't] going to get off that easy." The comments were
made in response to Harmon's refusal to testify in accordance with his prior
statement. Though somewhat unclear, it appears from the record that defense
objections to these comments were sustained . To the extent that Appellant
argues his substantial rights were nonetheless affected, we find no manifest
injustice. RCr 10 .26. While these comments are hardly the model of
courtroom decorum, they cannot be considered prejudicial . Neither do they
constitute an "unauthorized assault" on a witness as addressed in Terry v.
Commonwealth,
471
S .W.2d
730, 733 (Ky. 1971) .
The Commonwealth's
understandable frustration with Harmon was readily apparent to all present,
even without the extraneous commentary .
Appellant claims error where the trial court prohibited certain testimony
from Detective Aycock, who drove Appellant from Texas to Kentucky following
his apprehension. During an interview, Detective Aycock told Appellant that he
"thought this was self-defense ." Defense counsel attempted to elicit this fact
18
from Aycock at trial, but an objection by the Commonwealth was sustained.
Assuming, without deciding, that error occurred, it was harmless . RCr
9 .24 . Defense counsel was permitted to ask Aycock if he had "spun the truth"
during his interview with Appellant, which he answered affirmatively . This
question was asked again when defense recalled Aycock during its case-inchief. Aycock also testified that police investigators frequently "spin the truth"
to elicit a statement or confession . This point having been made, little more
could be gained by identifying the specific "white lies" Aycock made during the
interview. Appellant's substantial rights were not prejudiced by the exclusion
of this testimony. RCr 10 .26 .
Finally, having reviewed the entire record in this case, we believe
Appellant was afforded due process of the law. Of the errors that did occur,
their cumulative effect did not operate to deny Appellant a fair trial . Foster v.
Commonwealth, 827 S .W.2d 670, 683 (Ky. 1991) .
Accordingly, the judgment of the McCracken Circuit Court is affirmed.
Minton, C.J . ; Abramson, Cunningham, Schroder, and Venters, JJ .,
concur. Noble and Scott, JJ ., concur with the majority opinion on all other
issues, but concur in result only on the "no duty to retreat" issue for reasons it
is not applicable since Appellant accosted the victim here, not the other way
around .
COUNSEL FOR APPELLANT:
Delbert Keith Pruitt
Pruitt Law Office
222 Kentucky Avenue
P. O. Box 930
Paducah, KY 42002-0930
Kevin Crosby Burke
125 South Seventh Street
Louisville, KY 40202
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
Jeffrey Allan Cross
Office of the Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601
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