ROBERT LACY STAMPER V. COMMONWEALTH OF KENTUCKYAnnotate this Case
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RENDERED : JANUARY 20, 2011
NOT TO BE PUBLISHED
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ROBERT LACY STAMPER
ON APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE THOMAS O. CASTLEN, JUDGE
NO . 08-CR-00397
COMMONWEALTH OF KENTUCKY
MEMORANDUM OPINION OF THE COURT
The Appellant Robert Stamper was convicted of first-degree robbery and
of being a first-degree persistent felony offender. . Though he did not object at
trial, he now complains that the trial court erred in allowing the
Commonwealth to ask him to characterize the testimony of witnesses against
him as false and in allowing evidence of his prior drug use to be admitted.
Because neither alleged error rises to the level of palpable error, Appellant's
conviction is affirmed.
Appellant was convicted of robbing Walter White . Appellant and White
met through their next door neighbor, Larry Bickett . Appellant and White had
known each other for a couple weeks before the crime . On the night of the
crime, four people were in White's apartment : Clarence Arthur Hill, Jr,., Valada
Crowley Layson, Appellant, and White. What occurred inside the apartment
was disputed at trial.
According to White, Appellant and Layson came to his apartment, where
they began playing pool . White testified that Appellant and Layson acted
suspiciously: they whispered to each other, tried to close the blinds, and tried
to convince White to go to a bar with them to get drunk. Hill arrived later in the
evening; Appellant went to the door and let him in .
White became concerned that there were so many people in his
apartment whom he did not know well. He asked them to leave and went to his
bedroom . White claimed that Layson followed him and tried to convince him to
go to a bar. Appellant then came into the bedroom and attacked White by
hitting him in the head with a pool cue . A struggle ensued. Hill joined the
struggle, wrestling White to the floor. According to White, Appellant then pulled
out a knife and held it to White's throat, and then asked for White's wallet .
Without waiting, Appellant stuck his hand in White's pocket and took out the
wallet. Appellant then instructed Hill to get some cords in order to tie up White .
Hill returned with cord that had been pulled out of the wall and proceeded to
tie White's hands and feet behind his back. Appellant directed Layson to find
and take White's cell phones. Appellant also asked for the keys to White's truck
and threatened to kill him.
Some time later, White heard the police knocking at the door. When they
asked that he come to the door, Hill cut the cords binding his wrists and
ankles . White answered the door, told the police that three people were inside
his apartment, and then fled to his neighbor's apartment.
Appellant denied that a robbery occurred and admitted only to taking
money from White's wallet. He claimed that while White and Layson were
playing pool, he sneaked into White's bedroom and took money out of his
wallet, having observed White hide the wallet under the mattress earlier in the
evening. According to Appellant, when he returned to the living room, White
and Layson went into the bedroom.
Appellant then went outside on the balcony, where he saw Hill show up
at the apartment. Appellant presumed that Hill, who was Layson's boyfriend,
had overheard that Appellant and Layson were going to rendezvous at White's
house. Appellant claimed that Hill suspected Layson was about to cheat on
Appellant testified that he entered the apartment to warn Layson about
Hill's arrival, and that Hill followed him. When Hill saw Layson and White
sitting on the bed, he attacked White. Appellant intervened to break up the
fight, and Layson, Hill, and Appellant prepared to leave. At that point, White
discovered his wallet was missing and grabbed Layson. Appellant and Hill
intervened on Layson's behalf and another struggle ensued. Appellant claims
he did not hit White with a pool cue, hold a knife to his throat, or tie him up .
He also claims no one else tied White up .
Neither party disputes that Bickett, the next-door neighbor, called the
police after hearing the commotion next door and seeing his coaxial cable,
through which he illegally shared cable television service with White, pulled so
violently through the wall that his television almost tipped over.
The police arrived shortly after the call and entered the apartment.
White met them at the door and said that the three people in his apartment
were robbing him . They found Hill lying on the bed, and Layson and Appellant
in the bathroom . Appellant tried to escape; he struggled with and knocked
down one of the officers . In the bedroom, police found some cut cables and
cords and a pool cue. Police also discovered cuts on White's arms and marks
on his wrists and ankles. Two knives were also found on Appellant. Two other
knives were found in White's bedroom.
A police officer also testified that in an interview right after the incident,
Appellant admitted to trying to rob White. Specifically, he admitted that he
held a knife on White, that White had been tied up, and that he was there to
get money from White.
The jury convicted Appellant of first-degree robbery and of being a firstdegree persistent felony offender . The court sentenced Appellant to twenty
years in prison . His appeal to this Court, therefore, is as a matter of right. Ky.
Const. § 110(2)(b) .
Appellant claims the trial court erred by allowing the Commonwealth to
ask him to characterize both White and the police as liars on cross
examination. He also claims error occurred when his prior drug use was
introduced during the Commonwealth's case in chief. Neither line of questions
was objected to at trial.
Because neither error was properly preserved for appellate review, they
can only be reviewed if they rise to the level of palpable error. See RCr 10.26 ;
Martin v. Commonwealth, 207 S .W.3d 1, 3 (Ky. 2006) . Such an error is
essentially forfeited, see Martin, 207 S.W.3d at 3, and an appellate court may
consider it only if it "affects the substantial rights of a party" and "manifest
injustice has resulted from the error," RCr 10 .26. This Court has read RCr
10 .26 to require an appellant to show a "probability of a different result or error
so fundamental as to threaten a defendant's entitlement to due process of law."
Martin, 207 S .W.3d at 3. The focus of palpable error review is on the rule's
requirement of manifest injustice . "To discover manifest injustice, a reviewing
court must plumb the depths of the proceeding . . . to determine whether the
defect in the proceeding was shocking or jurisprudentially intolerable ." Id. at 4;
see also id. at 5 ("When an appellate court engages in a palpable error review,
its focus is on what happened and whether the defect is so manifest,
fundamental and unambiguous that it threatens the integrity of the judicial
process.") . This is a "stringent standard ." Id. at 5 .
Thus, an appellant seeking review of a forfeited error-that is, an
unpreserved or insufficiently raised error, as described in RCr 10.26-must
meet a substantial burden before an appellate court will exercise its discretion
to notice the error. With this standard in mind, we will take up each alleged
error in turn .
A. Asking Appellant to Characterize Other Witnesses as Liars
Appellant took the stand in his own defense. On cross examination, the
prosecutor, in four separate exchanges, asked whether statements by White
and the police were false or incorrect. In some instances, Appellant answered
the question directly . For example, when the prosecutor asked Appellant, "And
the statement that he [White] was hit in the head by you, that's a false
statement too?", Appellant answered, "Yes, sir." In other instances, the
Appellant evaded answering the question directly and did not characterize the
other witnesses' testimony as true or false . For example, when the prosecutor
asked, "So if the police indicate that they removed that knife from your pocket,
the police are lying? Is that right?", Appellant answered, "I don't remember
having it on me, sir, no. The only knife I remember on me is the camouflage
knife and I always carry it with me ." Appellant did not object to these questions
at trial .
This Court has repeatedly condemned the practice of asking a witness to
comment on the truth or falsity of another witness's testimony. See Ernst v.
Commonwealth, 160 S .W.3d 744, 764 (Ky. 2005); St. Clair v. Commonwealth,
140 S .W.3d 510, 553-54 (Ky. 2004) ; Caudill v. Commonwealth, 120 S .W.3d
635, 662 (Ky. 2003) ; Tamme v. Commonwealth, 973 S .W.2d 13, 28-29 (Ky.
1998); Moss v. Commonwealth, 949 S.W .2d 579, 583 (Ky. 1997) . The rule on
this type of questioning was laid out in Moss:
[W]e believe such a line of questioning to be improper . A witness
should not be required to characterize the testimony of another
witness, particularly a well-respected police officer, as lying. Such
a characterization places the witness in such an unflattering light
as to potentially undermine his entire testimony. Counsel should
be sufficiently articulate to show the jury where the testimony of
the witnesses differ without resort to blunt force.
Moss, 949 S .W.2d at 583 .
Yet, in each of these cases, the defendants' lawyers failed to object to the
questions, and on appeal, the erroneous questions were held not to rise to the
level of palpable error. In some cases, the Court simply concluded that the
error was not palpable without further explanation, e.g., id.; in other cases, the
Court concluded that the error was not palpable because the result would have
been the same absent the error, e.g., Caudill, 120 S .W.3d at 662 . The latter
cases come closest to applying the palpable error standard articulated in
Martin, which includes a "probability of a different result" as one way of
Appellant attempts to distinguish his case from these cases by arguing
that the result in his case would have been different had the prosecutor not
been allowed to ask him to characterize the testimony of other witnesses as
lies. In so arguing, Appellant characterizes this case as a swearing contest,
with the evidence turning largely on the credibility of the witnesses, who
essentially described two versions of the events on the night of the crime.
Appellant argues that the Commonwealth's improper questions undermined
his version of the events and thus made it more likely that the jury would
believe the prosecution witnesses . Appellant also notes some inconsistencies in
the physical evidence--e .g., that there was no evidence of a mark on or injury
to White's head, which would corroborate his claim of being hit there--that
highlighted the importance of the witnesses' testimony.
If this case turned solely on the competing accounts of the people in the
apartment about what happened, Appellant's case for palpable error would be
much stronger. Since both stories are plausible, sitting by themselves in
equipoise, the prosecution's questions could have tipped the scales, leading the
jury to disregard Appellant's story. But the evidence did not consist only of the
stories of the people in the apartment that night.
This Court in plumbing the depths of the entire record, as commanded
by Martin, has to contend with all of the evidence presented to determine the
gravity of the improper questions. The prosecution independently impeached
Appellant by introducing evidence from a police officer that on the night of the
arrest Appellant admitted to the robbery attempt, a different story than he told
at trial. This could provide support for a reasonable jury to weigh against the
credibility of Appellant's testimony. A police officer also testified to seeing
marks and cuts on White's wrists, which is consistent with his claim that he
was tied up and that those bonds were later cut by Hill . Finally, Appellant's
neighbor, Bickett, testified that his coaxial cable was pulled violently through
the wall, which is consistent with White's claim that he was bound by cables
that Hill brought from another room.
This evidence was independent of testimony of Hill, White, and Appellant,
and corroborated White's version of events . In light of this corroborating
evidence, this Court concludes that the result likely would have been the same
absent the erroneous questions by the Commonwealth. Though this Court
must reiterate-again--that questions like these are improper, we cannot say
that the error was "so fundamental as to threaten a defendant's entitlement to
due process of law," Martin, 207 S .W.3d at 3, or "so manifest, fundamental and
unambiguous that it threatened the integrity of the judicial process," id. at 5.
As such, the questions, while error, were not palpable error.
B. The Introduction of Prior Drug Use by the Appellant
Appellant also complains of evidence of his prior drug use, which was
elicited during the prosecution's re-direct examination of Bickett.
On cross examination, Appellant's counsel asked Bickett if White was
ever known to take drugs. Bickett responded in the affirmative and continued
to say that White would take pills, crack, or anything he could get his hands
on. When defense counsel asked a follow-up question about White's drug use,
Bickett corrected himself, stating that he thought counsel had asked him about
somebody else, not White . Bickett went on to state that White never took drugs
and rarely drank alcohol.
On redirect, the prosecutor asked Bickett to clarify that he had not been
talking about White when he mentioned drug use. Bickett agreed that he had
not been talking about White. Without further prompting or questioning,
however, Bickett also stated that it was the Appellant to whom he had referred
to as a drug addict.
Appellant claims this testimony violated KRE 404(b), because it was
evidence of other bad acts, and KRE 404(c), because the prosecution had given
no notice of its intention to admit such evidence. Again, Appellant did not
object to this evidence at trial.
Though such testimony would likely be error if elicited directly by the
Commonwealth on direct examination, this Court perceives no error-or at
least no palpable error-in the prosecution's questioning in this case. The
defense's own line of questioning led to the need for clarification . Though
Bickett stated during cross-examination that he had been mistaken, it was not
improper for the Commonwealth to follow-up during re-direct to confirm that
Bickett did not mean that White was a drug user . Just as important is the fact
that the Commonwealth did not elicit Bickett's statement that Appellant was a
heavy drug user. The Commonwealth asked only whether Bickett had been
referring to White; Bickett spontaneously went on to identify Appellant as the
drug user. Such a scenario, where the Commonwealth asks a legitimate
question that inadvertently leads to improper evidence, underscores the
importance of a timely objection (and motion to strike) by counsel.
The implication that the Commonwealth violated KRE 404(b) when it was
Appellant's own line of questioning that led to the error is misguided. That the
evidence was elicited as it was also demonstrates a lack of intent by the
prosecution to violate the notice requirement of KRE 404(c) . This Court sees no
substantial possibility that the outcome of the trial would have been different
absent the error. Nor can we say that the error was "so fundamental as to
threaten a defendant's entitlement to due process of law." Thus, no palpable
error occurred as a result of Bickett's testimony .
For the foregoing reasons, the judgment of the Daviess Circuit Court is
All sitting. All concur .
COUNSEL FOR APPELLANT:
Kathleen Kallaher Schmidt
Appeals Branch Manager
Department of Public Advocacy .
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
Robert C . Yang
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE :
Bryan Darwin Morrow
Office of the Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601