DEBBIE CHILDERS V. COMMONWEALTH OF KENTUCKY
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2009-SC-000297-MR
DEBBIE CHILDERS
V.
APPELLANT
ON APPEAL FROM LAWRENCE CIRCUIT COURT
HONORABLE JOHN DAVID PRESTON, JUDGE
NO . 08-CR-00057
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE ABRAMSON
AFFIRMING
Debbie Childers appeals from an April 14, 2009 Judgment of the
Lawrence Circuit Court convicting her of complicity to trafficking in a
controlled substance in the first degree . Finding Childers to be a seconddegree persistent felony offender (PFO), the jury enhanced her sentence from
ten to twenty years imprisonment and the trial court sentenced her
accordingly . Childers raises three issues on appeal : (1) the trial court erred
when it ruled she could not invoke KRE 608(b) to inquire into the nature of
confidential informant Thomas Osborne's prior felony convictions ; (2) the
Commonwealth's Attorney and Thomas Osborne impermissibly interpreted the
drug buy tape; and (3) there was insufficient evidence to support her
conviction . We find no error on the first and third claims . Regarding the
second claim, we find the Commonwealth's Attorney's comments on the tape
were proper but Osborne's interpretations were impermissible . However, the
unpreserved error is not palpable and so does not require a reversal .
Accordingly, we affirm.
RELEVANT FACTS
On September 3, 2008, Detectives Justin Wireman and Neil Adams of
Operation UNITE anti-drug task force were working with a confidential
informant, Thomas Osborne, to make drug buys in Louisa, Kentucky . Osborne
testified that on September 3rd he called Childers to "see if she could get
anything (drugs) ." Childers told Osborne she could get him "Oxycodone 15s"
for twenty dollars apiece. Osborne and Childers made arrangements to
immediately meet at a local car wash . On the way to the car wash, the
detectives searched Osborne and equipped him with a wire, a recording device
and $100 of photographed buy money . Because this preparation took longer
than anticipated, Osborne made a second call to Childers to assure her he was
on his way. In a taped conversation with the police at the police station,
Childers admitted she was the one who talked with Osborne on the phone,
made the arrangements and drove herself, Chad Johnson, a participant in the
drug transaction, and others to the car wash.
Osborne testified that at the car wash he gave Childers the $100 of buy
money and, upon receiving the money, Childers asked him "if there was a
hundred dollars there ." Testimony by Det. Wireman and Osborne and the buy
tape reveal Childers then handed something to Johnson. Osborne testified
that Childers handed the pills to Johnson, who then gave them to Osborne .
The defense argued it is not possible to discern from the tape exactly what
Childers handed to Johnson and that it was actually a handful of coins . After
the transaction, the police recovered from Childers the $100 buy money and,
from Osborne, the five pills he received from Johnson . The Kentucky State
Police Laboratory confirmed the pills were Oxycodone .
Childers was charged with complicity to first-degree trafficking in a
controlled substance and being a second-degree PFO . At the close of the
Commonwealth's case, Childers moved for a directed verdict based on
insufficiency of the evidence. The trial court denied the motion . Childers did
not present any evidence but did renew, her motion for a directed verdict . The
trial court again denied the motion. The jury found Childers guilty of
complicity to trafficking in a controlled substance in the first degree . She
received ten years for the complicity conviction, which was enhanced to twenty
years because of the second-degree PFO . Childers brings this appeal as a
matter of right. Ky. Const. § 110(2) (b) . We begin our review with Childers's
claim that the trial court erred when it ruled she could .not inquire into the
nature of Osborne's prior felony convictions.
ANALYSIS
I . The Trial Court Did Not Abuse its Discretion by Refusing Inquiry into
the Nature of Osborne's Prior Felony Convictions.
Detective Wireman, the Commonwealth's first witness, testified about
obtaining Osborne's assistance with Operation UNITE and about his role in the
September 3rd drug buy. On cross-examination, Childers sought to discredit
Osborne by asking Det. Wireman the nature and detail of Osborne's prior
felony convictions. The questioning proceeded as follows:
Defense Counsel: You also did a Personal History and
Conduct of Confidential Witness
[form for Thomas Osborne], correct?
Det . Wireman :
Yes, sir.
Defense Counsel: And it revealed that he had
previously been convicted of several
felonies, correct?
Det. Wireman :
I don't have it in front of me. I
believe he did have a felony
[inaudible] .
Commonwealth's Attorney: Objection.
Judge : Overruled.
Defense Counsel: And do these felonies involve crimes
of dishonesty?
Det . Wireman:
I can't remember what he was
actually charged with on any of
them .
Commonwealth's Attorney: Your Honor, can we
approach?
At this point, a bench conference ensued, during which the
Commonwealth's Attorney argued that defense counsel could ask whether
Osborne was a prior convicted felon but could not inquire further. Defense
counsel countered he should be allowed to inquire further if the crimes were
crimes of dishonesty because they would reflect on Osborne's credibility. The
trial court agreed with the Commonwealth and ruled that defense counsel
could do no more than establish that Osborne was a convicted felon. Defense
counsel preserved the issue for appeal by obtaining Det. Wireman's testimony
by avowal .
This Court reviews a trial court's decision regarding the admissibility of
evidence for abuse of discretion . Clark v. Commonwealth, 223 S .W .3d 90, 95
(Ky. 2007) . A trial court abuses its discretion when its decision is arbitrary,
unreasonable, unfair or unsupported by sound legal principles .
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) .
We conclude that the trial court did not abuse its discretion when it
disallowed Childers's inquiries into the nature of Osborne's convictions.
Childers concedes such inquiry is not permitted under Kentucky Rule of
Evidence (KRE) 609, but maintains it may be conducted under KRE 608(b) .
KRE 608(b) provides, in relevant part:
Specific instances of the conduct of a witness, for the
purpose of attacking or supporting the witness'
credibility, other than conviction of crime as provided
in Rule 609, may not be proved by extrinsic evidence.
They may, however, in the discretion of the court, if
probative of truthfulness or untruthfulness, be
inquired into on cross-examination of the witness: (1)
concerning the witness' character for truthfulness or
untruthfulness, or (2) concerning the character for
truthfulness or untruthfulness of another witness as
to which character the witness being cross-examined
has testified .
However, KRE 609(a) provides:
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.
Childers argues KRE 608(b) allows questioning as to the nature
and details of a witness's prior conviction if the conviction is probative of
the witness's character for truthfulness or untruthfulness . Childers
maintains this is true even though the conviction itself is not admissible
under KRE 609 . We do not agree. KRE 608(b) permits impeachment
only by specific instances of conduct that have not resulted in a
conviction while evidence relating to impeachment by criminal conviction
is governed solely by KRE 609 .
We begin our analysis by noting that the interplay between Rules
608 and 609 1 is complex. See United States v. Cudlitz, 72 F.3d 992, 995
(1 st Cir . 1996) ("The rules governing this subject - cross-examining a
criminal defendant about prior wrongs - are among the most complex
and confusing in the entire law of evidence .") ; Donald H . Ziegler,
Harmonizing Rules 609 and 608(b) o,f the Federal Rules of Evidence, 2003
Utah L. Rev. 635 (2003) . As there is little Kentucky law on this question,
we write today to clarify and settle the issue .
1 Both KRE 608 and 609 are significantly similar to their federal counterparts and the
discrepancies which exist do not affect our analysis here . KRE 608 essentially mirrors
Federal Rule of Evidence (FRE) 608. While the language in KRE 609 and FRE 609
varies in some places, the thrust of the rules, especially as it concerns this issue, is
the same.
This question was touched upon previously in Fields v.
Commonwealth, 274 S .W.3d 375 (Ky. 2008), wherein this Court held that
the trial court did not abuse its discretion when it refused to allow the
defendant to cross-examine two of the Commonwealth's witnesses about
their misdemeanor convictions. Fields, 274 S .W.3d at 399, 400 . On
appeal, the defendant admitted KRE 609(a) barred the introduction of the
misdemeanor convictions, but argued that because the misdemeanor
crimes bore on the credibility of the witnesses they were admissible
under KRE 608(b) . Id. Without delving into the relationship between
KRE 609(a) and KRE 608(b), we upheld the trial court's rulings, finding
the trial court had properly exercised the discretion granted it under KRE
608(b) to determine when to admit specific instances of conduct
concerning a witness' character for truthfulness . Id. It is true that KRE
608(b) grants the trial court such discretion . However, that is a
secondary question . The more fundamental question, which we did not
address in Fields, is whether criminal convictions, and the conduct
giving rise to them, even come within the purview of KRE 608(b) .
Although we have not addressed this question previously, our rules were
modeled closely upon the corresponding federal rules, and so we find it
helpful to consider how the federal courts have viewed this matter .
A majority of the federal Circuit Courts make a distinction between
specific instances of conduct that lead to a criminal conviction and those
in which there has been no conviction . The former are governed
exclusively by Rule 609, the latter by Rule 608 . That is, Rule 608 applies
only to specific acts of conduct that have not resulted in a criminal
conviction . United States v. Usazuwa, 564 F .3d 1169, 1173 (9th Cir .
2009) ("Rule 608 applies only to specific instances of conduct that were
not the basis of a criminal conviction . Evidence relating to a conviction . .
. is treated solely under Rule 609 ." (emphasis added)) ; United States v.
Lightfoot, 483 F.3d 876, 881 (8th Cir. 2007) ("Rule 608(b) . . . confers
upon district courts discretion to permit witness-credibility questioning
on specific bad acts not resulting in a felony conviction." (emphasis
added)) ; United States v. Whitmore, 359 F.3d 609, 618-20 (D .C . Cir.
2004) ("Cross-examination pursuant to Fed . R. Evid. 608(b) is not
confined to prior criminal convictions - they are governed by Fed. R. Evid.
1
609 . . . Furthermore, the government's suggestion that inquiry under
Fed . R. Evid . 608(b) should be limited to a prior perjury conviction would
make Fed . R. Evid. 609 superfluous. Fed . R. Evid. 608(b) allows a
witness's credibility to be attacked based on misconduct that, while not
constituting a criminal conviction, nevertheless tends to show that the
witness is untruthful ." (emphasis added)) ; United States v. Parker, 133
F .3d 322, 327 (5th Cir. 1998) ("Prior bad acts that have not resulted in a
conviction are admissible under 608(b) if relevant to the witness's
character for truthfulness or untruthfulness ." (emphasis added)) ; United
States v. White, 113 F .3d 1230, 1997 WL 279972, at *5 (2d Cir . May 23,
1997) (finding the applicable rule is 608(b) "because there was no
conviction in the earlier case." (emphasis added)) ; United States v. Smith,
80 F.3d 1188, 1193 (7th Cir. 1996) ("[T]he plain language of the rule
[FRE 608(b)] allows for cross-examination of matters `other than
conviction of crime."' (emphasis added)) ; Mason v. Texaco, Inc., 948 F.2d
1546, 1556 (10th Cir . 1991) ("Under Fed . R . Evid . 608(b), a defendant
may impeach a . . . witness by cross-examining him about specific
instances of conduct not resulting in conviction if such conduct is
probative of the witness' character for truthfulness or untruthfulness ."
(quoting United States v. Morales-Quinones, 812 F.2d 604, 613 (10th Cir.
1987) (emphasis added)) ; United States v. Hicks, 841 F .2d 1123, 1988 WL
16940, at * 1 (4th Cir . Jan . 27, 1988) (stating FRE 608(b) allows
impeachment of a witness by "proof of specific acts of misconduct which
did not result in conviction." (emphasis added)) .
Support for this construction of Rules 608(b) and 609 can also be
found in the legislative history of the Federal Rules of Evidence. The
Advisory Committee Note (ACN) provides, "Particular instances of
conduct, though not the subject of criminal conviction, may be inquired
into on cross-examination . . . ... Fed . R.. Evid. 608 Advisory Committee
Note (1972) (emphasis added) . The ACN also clarifies that the phrase in
Rule 608(b) that is the root of much of the confusion on this issue "other than conviction of crime as provided in Rule 609" - is not meant to
bring convictions within the purview of Rule 608 or make open to
question their nature and detail . Id. Rather, that phrase was included
in Rule 608 as mere recognition of the fact that impeachment by
conviction of a crime, which is treated in Rule 609, is an exception to the
general rule excluding evidence of specific incidents for impeachment
purposes . Id. These comments indicate that impeachment by conviction
of a crime is to be accomplished under Rule 609, not Rule 608 .
We also take note of several secondary sources that support this
interpretation of Rules 608 and 609 . While in no way binding on this
Court, these sources are illustrative . The leading treatise Federal
Practice and Procedure explicitly and repeatedly states that evidence of
criminal convictions is governed solely by Rule 609 .
Rule 608 does not regulate the admissibility of
criminal conviction evidence, which is the subject of
Rule 609 . . . Subdivision (b) [of Rule 608] specifically
exempts from its coverage evidence of specific
instances of witness conduct in the form of criminal
convictions. The admissibility of such evidence is
determined by Rule 609 . . . Of course, the first
sentence of subdivision (b) [of Rule 608] specifically
states that the admission of such evidence
[convictions] is determined under Rule 609, not Rule
608.
28 Charles Alan Wright 8v James Victor Gold, Federal Practice and
Procedure §§ 6111 n. l, .6113, 6117 (1993) (emphasis added) . Noted
criminal law professor H . Richard Uviller has advocated for a position
different than what we adopt today, and yet he still acknowledges that
Rule 608 plainly states that criminal convictions are governed by Rule
609 . H . Richard Uviller, Credence, Character, and the Rules ofEvidence:
Seeing Through the Liar's Tale, 42 Duke L.J. 776, 804 (1993) . As he has
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succinctly stated: "[T]he language of Rule 608(b) appears to exclude,
explicitly, instances of dishonest conduct that result in criminal
convictions ." Id .
The approach taken by these federal courts is also in keeping with
sound public policy and core principles of the Kentucky Rules of
Evidence . Our rules of evidence acknowledge the importance of evidence
relevant to a witness's credibility but also recognize the need to protect a
witness, especially a defendant who takes the stand, from having all of
his or her prior criminal acts detailed for the jury. As our rules are
currently interpreted, evidence of other crimes, wrongs, or acts is
admissible only for specific enumerated purposes, such as proof of
opportunity, plan, or accident, and, in a criminal case, are admissible
only when the prosecution gives the defendant pretrial notice of its
intention to offer such evidence at trial . KRE 404(b) and (c) . In addition,
a witness may be impeached by evidence of a felony conviction,2 but the
identity of the crime can be disclosed only if the witness denies the
conviction or chooses to inform the jury of the identity of the crime. KRE
609(a) . Further, when a witness is impeached by a prior felony
conviction, the party offering the witness is entitled to an admonition .
Thus, Kentucky trial judges routinely inform the jury not to consider the
felony conviction for any purpose other than whatever bearing it may
2 KRE 609(a) . The specific language of Rule 609 is crimes "punishable by death or
imprisonment for one (1) year or more." Thus, under Rule 609, evidence of a
misdemeanor conviction can never be admitted.
have on the person's truthfulness as a witness and the weight to be given
his testimony . Where the witness is the defendant, the jury is
specifically admonished not to consider the prior conviction as evidence
of the defendant's guilt in the pending case . This admonition
underscores a fundamental principle that the dissent fails to
acknowledge, i .e . , the fact of a felony conviction is, in and of itself,
powerful evidence that reflects on truthfulness .
If the facts and details underlying criminal convictions were to be
admissible under KRE 608(b), it would essentially provide an end-run
around these rules, rendering them largely ineffective, and would greatly
alter the careful manner in which our rules have heretofore provided for
the use of evidence of prior crimes . If we read KRE 608(b) the way
Childers proposes, a witness would be blindsided by the introduction of
his prior criminal acts, a particularly harmful consequence if the
defendant is on the stand. The carefully crafted pretrial notice provisions
in KRE 404(c) would simply not be applicable . Also, under this reading
of the rule, the prosecutor could set out numerous instances of a
witness's prior criminal conduct, always avoiding the identity and
number of convictions and thus preventing the jury from ever knowing
the witness was punished for his crimes. This "half picture" would give a
skewed view of the administration of justice and, in the case of a
defendant testifying, create the very real possibility that the current jury
would find it easy to punish the defendant for prior conduct for which he
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seemingly avoided any criminal consequences . A more stark illustration
involves a defendant who testified on his own behalf in a previous trial,
denying the charged offense, but who was nonetheless convicted and
sentenced . Under Childers's reading of the rule, the prosecution could
use this very fact against the defendant in the current case as a specific
instance of untruthful conduct. Pursuant to KRE 608(b), the prosecutor
could establish the defendant was a convicted felon and then elicit that
he had testified at his own trial denying any criminal responsibility .
Without any further questioning, the present jury could (and would)
conclude the defendant was untruthful .3
Because KRE 608(b) requires the conduct bear on truthfulness or
untruthfulness, the dissent maintains that only a handful of crimes
would qualify for admission and thus we overstate the effect of allowing
criminal conduct to be admitted under KRE 608 . However, we find little
solace in this limitation because of the likely possibility that a person will
engage in conduct that bears on truthfulness in the commission of a
crime that does not itself bear on truthfulness. For example, rape and
murder are not crimes that bear on truthfulness but it is not uncommon
for an offender to lie to a victim in order to perpetrate rape or knowingly
use a stolen gun to commit murder.
The gravest concerns arise when the witness is the defendant on trial, so some of
these scenarios could be avoided by drawing a distinction between a witness and a
defendant-witness . However, our current rules do not allow for that distinction.
3
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While it may seem harsh to bar inquiry into an act bearing on a
witness's truthfulness simply because it resulted in a conviction, as
noted, the fact of a conviction can be more prejudicial than the fact or
allegation of a criminal act that never resulted in a conviction .
See, e.g.,
Osazuwa, 564 F.3d at 1174. The Kentucky Rules of Evidence manage
this prejudice by providing careful controls for when and how a
conviction may be admitted. We will not undermine these safeguards by
permitting evidence of prior criminal acts to come in through the "back
door" of KRE 608 . Although KRE 608(b) is. hardly an example of careful,
clear draftsmanship, the interpretation proposed by Childers and the
dissent would produce an ill-advised sea change in the admissibility of
evidence of prior crimes. For the foregoing reasons, we hold that KRE
608 permits impeachment only by specific acts that have not resulted in
a criminal conviction . Evidence relating to impeachment by criminal
conviction is governed solely by KRE 609 . To the extent Fields may be
read to imply otherwise, it is overruled .
In the present case, Childers sought to impeach Osborne by crossexamining Det. Wireman on the nature of Osborne's previous
convictions. The trial court correctly sustained the Commonwealth's
Attorney's objection to the introduction of this evidence because this
evidence is not admissible under KRE 608 :4 Nor is it admissible under
4 Even if we held that convictions are admissible under KRE 608(b), Childers's
evidence would still not be admissible. Assuming, arguendo, that the facts underlying
a conviction may be admitted under KRE 608(b) if they are probative of truthfulness or
14
.
KRE 609, which requires the cross-examiner question the witness about
his own convictions . KRE 609(a) . Here, defense counsel cross-examined
Det . Wireman about Osborne's convictions, which is not sanctioned by
KRE 609 . 5 KRE 609; see Richardson, 674 S.W.2d at 517-18 . As such,
the trial court did not abuse its discretion by disallowing inquiry into the
nature of Osborne's convictions .
II. The Commonwealth's Attorney's Comments on the Drug Buy
Tape Were Permissible and Detective Wireman's Impermissible
Interpretation of the Tape Did Not Rise' to the Level of Palpable
Error .
Appellant argues that both the Commonwealth's Attorney and Det.
Wireman impermissibly interpreted the drug buy tape . In her opening
statement, the prosecutor told the jury that on the tape it would hear Childers
ask Osborne, "Is that a hundred?" referring to the buy money. She then told
the jury, "[Y]ou have to listen for that . . . you have to listen closely to hear
Debbie say . . . `Is that a hundred?"' During direct examination of Det.
Wireman, the Commonwealth's Attorney played the drug buy tape for the jury
and then asked Det. Wireman if he had heard what Childers said on the tape .
untruthfulness, Childers could still not inquire into Osborne's convictions because
Det. Wireman never testified to Osborne's honest character, as required by KRE
608(b)(2) .
5 Osborne later took the stand and defense counsel asked him on cross-examination,
"You're a twice-convicted felon. Third time is your magic number, isn't it?" Osborne
answered affirmatively. No further inquiry was made into Osborne's convictions .
However, if defense counsel had attempted to do so, such inquiry would be barred by
KRE 609 . See also Commonwealth v. Richardson, 674 S.W.2d 515, 517-18 (Ky. 1984)
("[A] witness may be asked if he has been previously convicted of a felony . If his
answer is "Yes," that is the end of it . . . . Identification of the prior offense or offenses,
before the jury, by either the prosecution or defense, is prohibited .") .
15
Det. Wireman responded, "She took one hundred dollars from Thomas and she
said, `Is that a hundred?"' During closing arguments, the prosecutor played
the video again and told the jury it would hear Childers say, "Is that a
hundred?"
Although the Commonwealth's Attorney's comments about the tape were
proper comments on the evidence, Detective Wireman impermissibly
interpreted the drug buy tape. However, reversal is not required because this
unpreserved error did not bear upon Childers's substantial rights or create a
manifest injustice as required to satisfy our palpable error standard. RCr
10 .26 .
A. The Commonwealth's Comments on the Drug Buy Tape Were
Proper Comments on the Evidence .
We will reverse for prosecutorial misconduct to which the defendant did
not object if the misconduct rendered the trial fundamentally unfair. Brown v.
Commonwealth, 313 S .W.3d 577, 627 (Ky . 2010) ; Slaughter v. Commonwealth,
744 S .W.2d 407, 412 (Ky. 1987) . While the prosecutor has a duty to confine
his or her argument to the facts in evidence, Caretenders, Inc. v.
Commonwealth, 821 S.W .2d 83, 89 (Ky. 1991), the prosecutor is entitled to
draw reasonable inferences from the evidence, make reasonable comment upon
the evidence and make a reasonable argument in response to matters brought
up by the defendant, Hunt v. Commonwealth, 466 S .W.2d 957, 959 (Ky. 1971) .
See also Wheeler v. Commonwealth, 1,21 S.W.3d 173, 180 (Ky. 2003) . Further,
a prosecutor is given wide latitude in making arguments to the jury, Williams v.
16
Commonwealth, 644 S.W . 2d 335, 338 (Ky. 1982), and may "appeal to the jury
with all of the power, force, and persuasiveness which his learning, skill, and
experience enable him to command," Housman v. Commonwealth, 128 Ky . 88,
110 S .W . 236 (1908) .
In the present case, there was no prosecutorial misconduct as the
Commonwealth's Attorney did no more than make reasonable comments on the
evidence. Thomas Osborne testified that when he gave Debbie Childers the
$100 buy money at the car wash she asked him "if there was a hundred dollars
there ." Osborne's testimony from recollection was permissible and constituted
evidence that Childers asked whether the money he handed her was one
hundred dollars. The Commonwealth's Attorney did not exceed the bounds of
propriety in commenting on this evidence in her opening statement and closing
arguments.
B . Detective Wireman Impermissibly Interpreted the Drug Buy Tape .
As for Det. Wireman's comments, the law on this issue is quite clear .
While a witness is permitted to testify from recollection about events captured
on tape, he may not interpret what is on the tape. Gordon v. Commonwealth,
916 S.W.2d 176, 179-180 (Ky. 1995) ("As with any participant in a
conversation, the informant witness was entitled to testify as to his recollection
of what was said . . . it is apparent that the witness purported to interpret the
tape recording rather than testify from his recollection . This was in error.") .
When a witness interprets what is on a tape he impermissibly invades the
province of the jury, which is vested with the responsibility and duty of making
17
determinations of fact based on the evidence. Cuzick v. Commonwealth, 276
S .W.3d 260, 265-66 (Ky. 2009) ; Gordon, 916 S .W.2d at 180 ("It is for the jury to
determine as best it can what is revealed in the tape recording without
embellishment or interpretation by a witness .") .
The trial court erred by allowing Det . Wireman to interpret the videotape.
Though Det. Wireman was present at the drug buy, he was sitting in a car at a
distance and could not hear firsthand what Childers said to Osborne. As such,
his testimony was not from personal recollection . It was in response to the
Commonwealth's Attorney's question as to what Det. Wireman heard Childers
say on the tape and, thus, was improper interpretation of the tape . See, e.g.,
Gordon, 916 S.W.2d at 180 (finding the witness did not testify from recollection
but interpreted the tape in error when, after the tape was played, the witness
was asked what he said on the tape and he answered, "I said, alright, I sure
thank you, Maurice.") .
While it was improper for Det. Wireman to interpret the tape, Childers
did not object to him doing so, and we find the unpreserved error was not
sufficient to warrant a reversal. Under RCr 10.26 we may grant relief for an
unpreserved error only when the error is (1) palpable; (2) affects the substantial
rights of a party; and (3) has caused a manifest injustice . Commonwealth v.
Jones, 283 S.W.3d 665, 668 (Ky . 2009) .
In the present case, the tape itself was played for the jury several times
during trial and was admitted into evidence, thus allowing the jurors numerous
opportunities to hear and evaluate the tape on their own. The defense counsel
18
pointed out in his opening statement that he had listened to the tape and never
had heard "anything about a hundred. I listened to it and listened to it, but
that's for you all to make a fact finding." Osborne testified from recollection as
to all the events on the tape and the jury had sufficient opportunity to observe
him, determine his credibility and decide what weight to give his testimony.
Further, there was sufficient additional evidence to support the conviction .
The testimony of both detectives, Osborne and a recorded statement by
Childers showed Childers took both phone calls from Osborne, discussed with
him the availability and sale of drugs, located the drugs for Osborne, arranged
the transaction, drove to the meeting place, and took the $100 buy money from
Osborne. As such, there was no manifest injustice and hence no palpable
error.
III. There was Sufficient Evidence for a Conviction of Complicity to
Trafficking in a Controlled Substance in the First Degree.
At the close of the Commonwealth's case, Childers moved for a directed
verdict based on insufficiency of the evidence and the court denied the motion.
Childers did not present any evidence but did renew her motion for a directed
verdict, which the court again denied . The jury found Childers guilty of
complicity to trafficking in a controlled substance in the first degree . Childers's
final argument on appeal is that there was insufficient evidence to support her
conviction . We disagree .
On a motion for directed verdict, the trial court must draw all fair and
reasonable inferences from the evidence in favor of the Commonwealth.
Commonwealth v. Benham, 816 S.W .2d 186, 187-88 -(Ky. 1991) . In other
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words, the trial court must assume the Commonwealth's evidence is true, while
leaving to the jury determinations as to the credibility and weight to be given
such evidence . Id. A directed verdict should not be given if the evidence is
sufficient to induce a reasonable juror to believe beyond a reasonable doubt the
defendant is guilty. Id. There must be evidence of substance and the trial
court is expressly authorized to direct a verdict for the defendant if the
prosecution produces no more than a "mere scintilla of evidence." Id. On
appellate review we determine whether, under the evidence as a whole, it was
clearly unreasonable for the jury to have found the defendant guilty. Fairrow v.
Commonwealth, 175 S .W.3d 601, 609 (Ky . 2005) (citing Commonwealth v.
Sawhill, 660 S .W.2d 3 (Ky. 1983)) .
Under the jury instructions, for the jury to find Childers guilty of
complicity to trafficking in a controlled substance in the first degree, they had
to believe beyond a reasonable doubt that Chad Johnson sold Oxycodone, a
Schedule 11 controlled substance, to Osborne and that Childers "intentionally
solicited, commanded, or engaged in a conspiracy with" Johnson for the
purpose of trafficking in a controlled substance. See also Kentucky Revised
Statute (KRS) 502 .020 and KRS 218A .1412 (a) .
Based on the record as a whole, it was not clearly unreasonable for the
jury to find Childers guilty of complicity to trafficking in a controlled substance
in the first degree . The jury could have found the elements of the charge
sufficiently satisfied by the proof that Childers took both phone calls from
Osborne; discussed with him the availability and sale of the drugs, including
20
type, quantity and price; located the Oxycodone for Osborne ; arranged the sale;
drove herself and Johnson, who allegedly had the drugs, to the meeting place
in order for the buy to occur; and took the $100 buy money from Osborne .
Further, the forensic examination confirmed that the pills were Oxycodone, a
Schedule 11 controlled substance . The evidence was sufficient to support the
jury's verdict and the trial court did not err in refusing to direct a verdict in
favor of Childers.
CONCLUSION
The trial court did not err in denying Childers's inquiry into the nature of
Osborne's prior felony convictions while cross-examining Det. Wireman. Such
evidence is not admissible under KRE 608(b), which permits impeachment only
by specific acts that have not resulted in a criminal conviction . Evidence
relating to impeachment by criminal conviction is governed solely by KRE 609 .
Further, Childers's inquiry was improper under KRE 609, which requires a
witness be questioned about his own prior conviction . The Commonwealth's
Attorney's comments on the drug buy tape were permissible and while it was
error for the trial court to allow Det. Wireman to interpret the tape, this error
did not rise to the level of palpable error under RCr 10 .26. Finally, based on
the evidence as a whole, it was not clearly unreasonable for the jury to have
found Childers guilty of complicity to trafficking in a controlled substance in
the first degree . As such, we affirm the .April 14, 2009 Judgment of the
Lawrence Circuit Court .
Minton, C .J . ; Cunningham, and Noble, JJ ., concur. Venters, J ., dissents
by separate opinion in which Schroder and Scott, JJ ., join .
VENTERS, J ., DISSENTS BY SEPARATE OPINION: We respectfully
disagree with the Majority's conclusion that cross-examination of a witness
under KRE 608(b) is restricted by KRE 609, and therefore .we dissent . The
Majority holds that KRE 608(b) forbids the cross-examination of a witness
about a specific instance of dishonest conduct when that conduct resulted in a
criminal conviction, but allows such cross-examination when the subject of the
inquiry was not convicted of a crime arising from such conduct . We dissent
from the Majority's interpretation of KRE 608(b) because it is contrary to the
plain meaning of the rule, offends the traditional guiding principles of our
Rules of Evidence, and has been criticized by legal scholars, including one cited
below stating that it leads to
"a foolish result."
The Majority accepts the notion, derived from federal cases, that "the
interplay between Rules 608 and 609 is complex." The Majority then echoes
the complicated analysis of similar Federal Rules of Evidence used by some
federal courts . However, there is no complex "interplay" between KRE 608(b)
and KRE 609 . KRE 608(b) and KRE 609 are not interdependent upon each
other because each rule operates independently of the other.
The interpretation of the corresponding Federal Rules of Evidence by the
federal courts and adopted by the Majority opinion leads to the following
absurd result . Under the Majority's ruling, a witness who has committed a
theft may be cross-examined under KRE 608(b) about the theft, but only if he
22
was not actually convicted of the crime . However, if he was convicted of the
theft, the Majority holds that he could not be cross-examined about it. Thus,
the act of theft may be used to impeach a witness who was tried and found not
guilty of the theft, but it cannot be used when the dishonest act has been
established beyond a reasonable doubt . That result defies reason . If one
accepts the premise, as the Rules of Evidence for both Kentucky and the
federal courts universally do, that knowledge of a witness's dishonest conduct
aids the trier-of-fact in assessing the credibility of that witness, then one must
concede that conduct resulting in a conviction for theft, or some other of crime
of dishonesty, such as' perjury, has far more probative weight than an
unproven allegation of the dishonest act.
The source of the Majority's misconstruction of KRE 608(b) is its failure
to recognize that the phrase "other than conviction of crime as provided in rule
609" is applicable only to extrinsic evidence . To reveal the fallacy of the
Majority's opinion, we must dissect KRE 608(b) .
KRE 608(b) consists of four sentences.6 The first sentence reads :
Specific instances of the conduct of a witness, for the purpose of
attacking or supporting the witness' credibility, other than
conviction of a crime as provided in rule 609, may not be proved by
extrinsic evidence .
6
The third and fourth sentences of KRE 608(b) do not enter into the analysis under
the view expressed in this dissenting opinion, or in the majority opinion . The third
sentence preserves the integrity of the proceeding by requiring the cross-examiner
to have a factual basis to support the subject matter of the inquiry. The fourth
sentence preserves the witness's right against self-incrimination when questioned
under Rule 608(b) .
23
KRE 609(a)7 generally provides that evidence of a witness's felony conviction
"may be elicited from the witness" (i .e . on cross-examination), or it may be
established by public record if denied by the witness. The identity of the crime
upon which the conviction is based may not be disclosed unless the witness
either chooses to disclose the crime, or denies the conviction . The Majority
reads KRE 608(b)'s reference to KRE 609 as a complete preemption by KRE
609 of any evidence relating to a criminal conviction. Stressing that evidence
of criminal conviction is "governed by KRE 609," the Majority ignores the fact
that the first sentence of KRE 608(6) addresses only extrinsic evidence, such as
a public record of a criminal conviction, not testimony elicited upon crossexamination. The Majority adopts the same flawed construction of the phrase
"other than conviction of crime as provided in rule 609" that has divided the
federal courts .
By its plain meaning, the first sentence of KRE 608(b) generally prohibits
an attack on a witness's credibility using "extrinsic evidence" of specific
instances of the witness's conduct. In the context of this rule, extrinsic
evidence means "all evidence other than what can be extracted during crossexamination of witnesses ." See Robert G . Lawson, The Kentucky Evidence Law
7 KRE 609(a) states. "General rule. 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 crossexamination 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."
24
Handbook, § 4 .20(5) (4th ed. 2003) (quoting Minutes, Evidence Rules Review
Committee, Commentary on Amended Rule 608 (September 28, 2001)) .
Without an additional qualifying phrase, the first sentence of KRE 608(b) would
directly conflict with KRE 609's express authorization of extrinsic evidence, in
the form of public records, to prove that a witness has a felony conviction .
Hence, the qualifying phrase "other than conviction of crime as provided in rule
609" simply operates to clarify that KRE 608(b)'s general ban on the use of
extrinsic evidence to prove specific conduct of a witness does not interfere with
the operation of KRE 609, where extrinsic evidence of a criminal conviction is
admissible in certain circumstances. That qualifying phrase has nothing
whatsoever to do with the second sentence of KRE 608(b) which, in turn, does
not involve extrinsic evidence . It reads as follows :
They ["specific instances of witness conduct"] may, however, in the
discretion of the court, if probative of truthfulness or
untruthfulness, be inquired into on cross-examination of the
witness (1) concerning the witness' character for truthfulness or
untruthfulness, or (2) concerning the character for truthfulness or
untruthfulness of another witness as to which character the
witness being cross-examined has testified ."
The second sentence is the heart of KRE 608 . It allows, subject to the
trial court's discretion, a witness to be cross-examined about specific instances
of conduct that are probative of his own character for truthfulness or
untruthfulness, or about the character of another witness about whom he has
testified. Where the first sentence of KRE 608(b) deals only with extrinsic
8
The inquiry under review in the instant case pertained only to the second aspect of
608(b), cross-examination of a witness (Detective Wireman) about specific conduct
of another witness (Osborne, the confidential informant) .
25
evidence and excludes from its reach extrinsic evidence used to prove a
criminal conviction under KRE 609, the second sentence of KRE 608(b) deals
only with cross-examination . The second sentence requires no qualifying
reference to KRE 609 because it contains no inherent conflict with KRE 609 .
KRE 608(b) allows cross-examination of a witness about specific acts that are
probative of truthfulness or untruthfulness, and KRE 609 allows crossexamination, and in some circumstances extrinsic evidence, about felony
convictions. The language of neither rule precludes application of the other.
The Majority, again citing the reasoning of various federal cases, supposes that
its interpretation of KRE 608(b) is needed to block an "end run" around KRE
609 with "facts and details" underlying the conviction . In response, we note
again that inquiry allowed by KRE 608(b) is extremely limited in scope, and
may be done only upon cross-examination . No follow-up admission of extrinsic
evidence is allowed. Thus, we respectfully suggest that the Majority overstates
the concern over admission of extensive details of a witness's conduct.
The Majority worries further that we not permit KRE 608(b) to become
the "backdoor" for admitting evidence not allowed under KRE 609, and so it
constructs an interpretation of the rule to prevent that. It is true that
sometimes cross-examination under KRE 608(b) about specific acts underlying
a criminal conviction will reveal the identity of a crime which would not
otherwise be allowed under KRE 609 . But that "problem" is not unique to the
KRE 608-609 analysis . Evidence forbidden under the hearsay rule may often
find another route to the fact-finder, as impeachment evidence or some other
26
non-hearsay purpose . We even have a rule of evidence that addresses the
problem, KRE 105 .9 The "backdoor" admission feared by the Majority is
further limited because only specific acts relating to the character trait of
truthfulness can be admitted under KRE 608(b), and even then only after
passing the filter of a trial judge's discretion . The specific act underlying many
felony convictions will never be admitted under KRE 608(b) because they do
not reflect upon the trustworthiness of the witness . Felony convictions for
crimes such as rape, manslaughter, murder, assault, sexual abuse, trafficking
in controlled substances, arson, nonsupport, and many others often do not
involve specific conduct that would qualify under KRE 608(b) . Thus, the policy
choice implicit in KRE 609, to prohibit the identification of the particular crime
is impeded only when the felony. conviction involves a crime of dishonesty, such
as theft, perjury, or the like . The Majority, however, ignores the fact that KRE
608(b) represents an equally valid, but different, policy choice : a jury assessing
the credibility of a witness may be apprised of conduct of that witness that is
indicative of a truthful or untruthful disposition .
Because it perceives the greater injustice to follow the disclosure of
specific conduct from which a felony conviction arose, the Majority sees KRE
609 as superseding KRE 608 in all situations . Accordingly, the Majority creates
a bright line, one-size-fits-all rule that offends a traditional guiding principle of
9 KRE 105(a) states : "[w1hen evidence which is admissible as to one (1) .party or for one
(1) purpose but not admissible as to another party or for another purpose is
admitted, the court, upon request, shall restrict the evidence to its proper scope
and admonish the jury accordingly . In the absence of such a request, the
admission of the evidence by the trial. judge without limitation shall not be a ground
for complaint on appeal, except under the palpable error rule."
27
our Rules of Evidence -the role of the trial judge in balancing the fairness of
evidence admitted at trial.
Certainly, as the Majority fears, circumstances exist when the coupling of
an unidentified felony conviction with the acknowledgement under crossexamination of the specific conduct from which the conviction arose, creates an
unfairly prejudicial bias for or against a party. In such instances, KRE 608(b)
expressly requires the trial judge to exercise discretion and disallow the
prejudicial cross-examination . There is no omnipresent, unfair bias that
requires us to ban inquiry through cross-examination about specific acts under
KRE 608(b) every time those acts resulted in a conviction admissible under
KRE 609 . Such a bright line rule totally ignores, not only the judicial
discretion expressly granted under KRE 608(b), but also the general policy
implicit in KRE 403 1 ° to allow the trial court wide latitude to exclude relevant
evidence when its prejudicial impact exceeds its probative value.
In Woolum v. Hillman, --- S .W.3d ----, 2010 WL 4146220, *3 (Ky. 2010)
we found such a bright line rule on impeachment of a witness to be
incompatible with KRE 403 . 11 Citing Baker v. Kammerer, 187 S.W .3d 292, 296
(Ky. 2006), we described the "the general inclusionary thrust of the Rules of
Evidence and the preference to allow evidence of bias," as "core principles of
to KRE 403 states, "[a]lthough relevant, evidence may be excluded if its probative value
is substantially outweighed by the danger of undue prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, or needless
presentation of cumulative evidence ."
11 Woolum
involved the impeachment of an expert medical witness because of a
potential bias arising from the fact that he had the same medical malpractice
insurance as the party for whom he was testifying .
28
Kentucky's evidence law." "The law favors the admission of evidence that is
relevant to a jury's determination of a witness's credibility. As with most
evidentiary decisions, the trial court's discretion in this area stems from its
gatekee.ping function under KRE 403 ." Baker, 187 S .W.3d at 295. "A trial
judge may always exclude evidence when its probative value is substantially
outweighed by its risk of undue prejudice." Id. at 297. The Majority's
interpretation of KRE 608(b) leads us down a path that departs from the
foregoing principles .
Finally, we note, that while both of the articles of legal scholarship cited
in the Majority opinion acknowledge that most federal circuit courts (but not
all) have adopted an interpretation of the rules consistent with the Majority
opinion, both articles strongly criticize the interpretation . Noted criminal law
professor H. Richard Uviller states :
This reading of the rules [the same reading of rules adopted by the
Majority] obviously produces a foolish result. No good reason
supports allowing extensive inquiry into an elaborate real estate
hoax and the witness's part in it as long as it was never prosecuted
as a crime, but limiting examination of the prosecuted swindle to
the fact of conviction of mail fraud or some lesser, bargained-for
crime to which the defendant may have been allowed to plead
guilty.
H. Richard Uviller, Credence, Character, and the Rules ofEvidence: Seeing
Through the Liar's Tale, 42 Duke L.J. 776, 804 (1993) . He goes on to note:
A wiser construction would be that Rule 608(b) is unaffected by
Rule 609, and that the fact that the witness's dishonest conduct
resulted in a criminal conviction does not diminish the right of the
opposing party to cross-examine the witness about the conduct
itself.
In this reading, Rule 608(b) is taken as a provision
concerned only with the admissibility of extrinsic evidence; it
provides that proof of specific instances of dishonest conduct may
be adduced only from the mouth of the impeached witness himself.
29
In this context, the troublesome words of Rule 608(b), "other than
conviction of crime as provided in rule 609," would not be read to
limit the license to conduct that does not underlie a criminal
conviction, but rather to exempt proof of the fact of prior conviction
from the ban on extrinsic evidence . This reading also accords with
the Advisory Committee Note .
Id. at 806 (footnotes omitted) . The "wiser construction" that Professor
Uviller suggests is precisely the same interpretation of the rules that we
outlined above .
The second article cited by the Majority agrees with Professor Uviller's
assessment, although its author, New York Law School Professor Donald
Ziegler, shares the Majority's concern for the prejudicial effect of 608(b)
impeachment. After describing what he calls "chaos" among the federal courts
trying to resolve the interaction between Rule 608(b) and Rule 609(a), and
proposing substantial amendments to the Rules, he writes:
[C]ourts generally should permit impeachment with the same sort
of misconduct under both rules . The reason is the one stressed
above ; namely, that it is the misconduct that is probative and
prejudicial, not whether the misconduct resulted in a conviction .
Complete consistency plainly is not possible. The scope of
misconduct admissible under Rule 608(b) necessarily exceeds that
of Rule 609(a) because Rule 609(a) is limited to misconduct that
resulted in a criminal conviction . Rule 608(b) encompasses not
only conduct resulting in a criminal conviction but also criminal
conduct not resulting in a conviction and some noncriminal
conduct that bears on credibility. Nonetheless, there is substantial
overlap. Prior misconduct that is criminal in nature should be
equally admissible under both rules .
Donald H . Ziegler, Harmonizing Rules 609 and 608(b) of the Federal Rules
of Evidence, 2003 Utah L. Rev. 635 (2003) (footnote omitted) .
The Majority finds unjustifiable comfort in the fact that its opinion mimics the
result attained by a majority of federal courts interpreting analogous provisions
30
of the Federal Rules of Evidence . However, the Kentucky Rules of Evidence are
the product of the Kentucky Supreme Court and the Kentucky General
Assembly, aided by eminent Kentucky lawyers and legal scholars . In the
interpretation of state law, we owe no deference to the views the federal judges
of various circuits throughout the nation, simply because they outnumber the
federal judges in other circuits who hold a different view. 12 We should not
subject the meaning of the Kentucky Rules of Evidence to a head count of
federal judges interpreting their own rules of evidence, especially when doing so
produces the illogical effects of the Majority opinion in this case, and when
doing so defies the plain language of our Rule, and contravenes core principles
of Kentucky evidentiary law. We therefore respectfully dissent.
Schroder and Scott, JJ ., join .
12
The Majority notes that its opinion aligns Kentucky law with most Federal Circuit
Courts, citing cases from the 2nd, 5th, 7th, 8th, 9th, and 10th, and the DC
Circuits . However, we note that a recent decision of the 7th Circuit suggests that it
is no longer a member of that majority . See U.S. v. Barnhart, 599 F.3d 737,747 (7th
Cir. 2010) (holding defendant was properly cross-examined under Rule
608(b)regarding the facts underlying his theft and deceptive-practices convictions
because he was a witness and the convictions related to his character for
truthfulness .) Federal courts of the 1st Circuit (United States v. Wilkerson, 251
F.3d 273 (1st Cir. 2001), 3rd Circuit (Elcock v. Kmart Corp., 233 F .3d 734 (3d Cir.
2000), and 6th Circuit (United States v. Hurst, 951 F .2d 1490, 1501 (6th Cir. 1991)
reach a conclusion that accords with our dissenting opinion .
31
COUNSEL FOR APPELLANT:
Emily Holt Rhorer
Department of Public Advocacy
100 Fair Oaks Lane
Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE :
Jack Conway
Attorney General
Heather Michelle Fryman
Assistant Attorney General
Office of the Attorney General
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort, KY 40601
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