DEBBIE CHILDERS V. COMMONWEALTH OF KENTUCKYAnnotate this Case
MODIFIED : MARCH 24, 2011
RENDERED : DECEMBER _16,2010
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ON APPEAL FROM LAWRENCE CIRCUIT COURT
HONORABLE JOHN DAVID PRESTON, JUDGE
NO . 08-CR-00057
COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE ABRAMSON
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 second
degree persistent felony offender (PFO 2), 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 Kentucky Rules of Evidence (KRE) 608(b) to
inquire into the nature of confidential informant Thomas Osborne's prior felony
convictions; (2) the Commonwealth's Attorney and Detective Wireman
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 Wireman's interpretations were
impermissible . However, the unpreserved error is not palpable and so does not
require a reversal. Accordingly, we affirm.
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 Detective 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.
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 Detective 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?
And it revealed that he had
previously been convicted of several
I don't have it in front of me . I
believe he did have a felony
And do these felonies involve crimes
I can't remember what he was
actually charged with on any of
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 Detective 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 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 crossexamined 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 (1st 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) OF 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 .
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)
Both KRE 608 and 609 are significantly similar to their federal counterparts, and
the discrepancies that exist do not affect our analysis here. KRE 608 essentially
mirrors Federal Rules 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.
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's 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.
Osazuwa, 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 witnesscredibility 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. 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 crossexamination 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's 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.
CHARLES ALAN WRIGHT
VICTOR GOLD, FEDERAL PRACTICE AND
§§ 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 of Evidence: Seeing Through the Liar's Tale,
42 Duke L.J. 776, 804 (1993) . As he has succinctly stated, "the 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 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
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
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.
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 ofjustice 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 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
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.
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.
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 .
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
may be read to
imply otherwise, it is overruled.
In the present case, Childers sought to impeach Osborne by crossexamining Detective 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 KRE 609, which requires the crossexaminer question the witness about his own convictions . KRE 609(a) . Here,
defense counsel cross-examined Detective 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
Appellant argues that both the Commonwealth's Attorney and Detective
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
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 untruthfulness, Childers could still not inquire into Osborne's
convictions because Detective Wireman never testified to Osborne's honest
character, as required by KRE 608(b)(2) .
Osborne later took the stand; and defense counsel asked him on crossexamination, "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 .") .
Debbie say . . . `Is that a hundred?' During direct examination of Detective
Wireman, the Commonwealth's Attorney played the drug buy tape for the jury
and then asked Detective Wireman if he had heard what Childers said on the
tape. Detective 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 .
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, 121 S.W.3d 173, 180 (Ky. 2003) . Further,
a prosecutor is given wide latitude in making arguments to the jury, Williams v.
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 Detective 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, 179-80 (Ky . 1995) ("As with any participant
in a conversation, the informant witness was entitled to testify as to his
recollection of what was said . . . . [I]t 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 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 Detective Wireman to interpret the
videotape . Though Detective 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 Detective
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 Detective 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 on their own to hear and evaluate the tape. The
defense counsel 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
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 II 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
Statutes (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
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 0sborne .
Further, the forensic examination confirmed that the pills were Oxycodone, a
Schedule II 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 .
The trial court did not err in denying Childers's inquiry into the nature of
Osborne's prior felony convictions while cross-examining Detective 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 Detective
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 ., DISSENTING : 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
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 .
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(b) addresses only extrinsic evidence, such as a
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) .
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 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.
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
§ 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
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
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
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) .
admission of extrinsic evidence is allowed . Thus, we respectfully suggest that
the majority overstates the concern over admission of extensive details of a
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 that would not otherwise
be allowed under KRE 609 . But that "problem" is not unique to the KRE 608609 analysis . Evidence forbidden under the hearsay rule may often find
another route to the fact-finder, as impeachment evidence or some other nonhearsay 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
KRE 105(a) states: "When 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."
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
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 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 40310 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 general inclusionary thrust of the Rules of
Evidence and the preference to allow evidence of bias," as "core principles of
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
gatekeeping 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
io 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 ."
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 .
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
H. Richard Uviller, Credence, Character, and the Rules of Evidence: Seeing
Through the Liar's Tale, 42 Duke L.J . 776, 804 (1993). Uviller 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.
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) ofthe 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 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 of the federal judges of various circuits throughout the nation
simply because they outnumber the federaljudges in other circuits who
hold a different view. 12 We should not subject the meaning of the
The majority notes that its opinion aligns Kentucky law with most Federal Circuit
Courts, citing cases from the 2nd, 5th, 7th, 8th, 9th, 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. Bamhart, 599 F.3d 737,747 (7th Cir.
2010) (holding defendant was properly cross-examined under Rule 608(b)
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.
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 .
COUNSEL FOR APPELLANT:
Emily Holt Rhorer
Department of Public Advocacy
100 Fair Oaks Lane
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:
Heather Michelle Fryman
Assistant Attorney General
Office of the Attorney General
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort, Kentucky 40601
~ixyrPmt C~Vurf of ~6ufurhv
ON APPEAL FROM LAWRENCE CIRCUIT COURT
HONORABLE JOHN DAVID PRESTON, JUDGE
NO . 08-CR-00057
COMMONWEALTH OF KENTUCKY
ORDER DENYING PETITION FOR REHEARING
AND MODIFYING OPINION
This matter is before the Court on the Appellant's Petition for
Rehearing of the Opinion of the Court by Justice Abramson, rendered
December 16, 2010 . The Court having reviewed the record and being
otherwise fully and sufficiently advised, ORDERS as follows :
The Appellant's petition is DENIED ; and
On the Court's own motion, the Opinion of the Court by
Justice Abramson, rendered December 16, 2010, is MODIFIED on its
face ; and the attached opinion is substituted therefor . The modification
does not affect the holding of the case .
All sitting . All concur.
ENTERED: March 24, 2011 .