Fairley v. Commonwealth
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The Supreme Court affirmed the judgment convicting and sentencing Defendant to twenty years’ imprisonment for first-degree robbery, receiving stolen property, first-degree possession of a controlled substance, and possession of marijuana. The court held (1) the trial court did not err by permitting the victim to make an in-court identification of Defendant and by refusing to give an instruction for the lesser-included offense of facilitation to first-degree robbery; (2) there was sufficient evidence to convict Defendant of receiving stolen property based on a stolen handgun; and (3) the Commonwealth’s questioning of Defendant regarding his violent past did not constitute palpable error.
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·RENDERED: SEPTEMBER 28, 2017 TO BE PUBLISHED ~upr:em:e ~nurf nf Ii:enfurku 2016-SC-000021-MR ; JOHN FAIRLEY III v. APPELLANT ON APPEAL FROM CHRISTIAN CIRCUIT COURT HONORABLE ANDREW C. SELF, JUDGE NO. 14-CR-00551 .·COMMONWEALTH OF KENTUCKY APPELLEE . . OPINION OF THE COURT BY JUSTICE HUGHES . AFFIRMING John Fairley III appeals as a matter of right from a judgment of the Christian Circuit Court sentencing him to twenty years' imprisonment for· first. I degree robbery, receiving stolen property (firearm), first-degree pos~ession of a I controlled substance (while armed), and possession of marijuana (while armed). Fairley alleges that the trial co.urt erred by permitting the victim to. make an incourt identification and by refusing to give an instruction 'for the lesserincluded offense of facilitation to first-degree robbery. Fairley also raises two . unpreserved errors: 1) that his conviction for receiving stolen property based on a stolen handgun was manifestly unjust and 2) that the Commonwealth's Attorney improperly questioned him about a prior assault. For the following reasons, we affirm the judgment and sentence. FACTS AND PROCEDURAL HISTORY On September 2, 2014, Charles "Bird Dog" Page left his home to visit his. brother, Earl, in Hopkinsville, Kentucky. While walking to Earl's residence, Page observed a maroon colored vehicle, which for some unspecified reason he found suspicious: Page watched the vehicle pull into a parking lot and he continued on his way to his brother's home. Upon reaching Earl's residence, Page realized that he had forgotte.n his key. As Page left to meet his brother to get a key to the house, he once again saw the maroon car. Concerned about the maroon car's reappearance, Page hitched a ride with two African-American men in a ~lue car: After driving for some time, the driver turned down an alley.· Subsequently, the passenger in the front seat . . (later identified by Page as Fairley) pointed a handgun at Page and commanded "Give me your money." Page fled the vehicle and ran towards a law office. Fairley ·gave chase and struck Page in the back of the head with hi~ pistol. Page then began to yell for help. Hearing the disturbance, Lucius Ha:wes, exited his law office and saw both men. Hawes observed.an African-American man with dreadlocks-, dressed ( in dark clothing, and carrying a large semi-automatic pistol, fleeing the scene headed in the. direction of Clay Street. . Subsequently, Hawes provided aid to Page, whose head wound was bleeding profusely. Emergency services were contacted and shortly thereafter an ambulance . . . arrived to treat Page. While receiving medical treatment, Page informed Emergency Technician Nicholas Marlow that two African-American men had 2 assaulted him with a pistol.· Page was initially treated at~ local hospital, but was later medically evacuated by helicopter to a hospital in Tennessee. Page's injuries included a severe laceration and a broken nose. Later, when interviewed. by the police, Page explained that the person who struck him had also ·stolen money from him. During the resulting police investigation, investigators received tips which suggested Fairley's involvement in the robbery. Police also learned that . at the time of the robbery Fairley had been wearing a GPS ankle monitor as part of a. court-ordered home incarceration. According to the monitoring company, Fairley's monitoring device was registered as being near Hawes's '\ · office and moving- away from that location towards Clay Street at the time of the robbery. The police interviewed Fairley.on September 3, 2014, at which time he claimed to have been driving a red car on the day of the robbery. He noted that he was away from his home that day as he was submitting an employment application. The following day, September 4, 2014, police using GPS tracking located Fairley sitting alone in the back seat of a white vehicle parked in a vacant lot. On top of the transmission tunnel in the rear of the vehicle, approximately a foot away from Fairley, .was a firearm which police later . learned had previously been reported stolen. Alsq in.the vacant lot was a blue Malibu vehicle which was registered to Fairley's mother. . 3 ( I After .Fairley's arrest 1 he was again interviewed by the police about the Page robbery. In his s~cond interview, Fairley initially claimed that he had been at his home during the time of the robbery. However, later in the interview, he stated that he had witnessed someone attacking Page and he gave that person a ride away from the are.a. A later search of the blue Malibu pursuant to a warrant led to the recovery of quantities of cocaine and marijuana ..Additionally, during a search of Fairley's home, police recovered a pair of socks which appeared to have blood stains on them. Subsequent forensic testing established the presence of blood on the passenger's side door handle of the blue Malibu, the firearm, and the socks. The DNA profile for those blood stains was a match for Page at all loci, with an estimated frequency of one in ninety-nine quintillion based op the relevant Uriited States population. · In September 2015, Fairley was tried . by the Christian Circuit Court and . found guilty of first-degree robbery, receiving stolen property (firearm), firstdegree possession of a controlled substance (while armed), and possession of marijuana (while armed). The jury recommended the maximum penalty for each offense, but recommended that those sentences be served concurrently for a total sentence of twenty years' imprisonment. The trial court sentenced Fairley in conformance with the jury's recommendation. I It appears Fairley was arrested due to violation of court-ordered conditions attached to his release on home incarceration. · 4 I. The Trial Court Properly Permitted the Victim to Make an In-Court · Identification of Fairley. · · Fairley argues that the trial court erred by permitting Page to .make an in-court identification. Specifically, Fairley contends that as Page was unable to identify him in a photographic lineup, that he should have been b8:rred from making an in-court identification.2 Alternatively, Fairley request; that the Court remand this case for a hearing to assess whether the in-court identification satisfies the.factots·set forth in Neil v .. Biggers, 409 U.S. 188, 93 S. Ct. 375 (1972). We reject both arguments. r After Fairley was apprehended, . De~ective Green showed Page a photographic lineup; but he· was unable to identify Fairley as the perpetrator. However, prior to trial, Page informed the prosecutor that he would be able to identify Fairley. At'a pretrial conference heid in September 2015, the prosecutor informed the- trial court and Fairley of Page's statement. Fairley, who at that time was functioning as his own counsel, responded by saying "[t]o me, I feel like that shouldn't be allowed because if he couldn't do it then, how all of a sudden you can do it now?" The trial court explained that it would not bar Page from making an in-court identification and that Fairley could crossexamine him on this issue. During_ the trial, Page identified Fairley as the man who' robbed him.:. Page explainea that he initially was fearful of identifying 2 Fairley states that the admission of the in-court identification violated his right to due process under the Fourteenth Amendment to the United States Constitution and Section 11 of the Kentucky Constitution. 5 Fairley. Further; Page was concerned that identifying Fairley would lead to the revelation that the stolen mqney had been acquired through illeg~l gambling. Notably, Fairley did not object to Page's in-court identification, but did. question· him about the identification as discussed below. While Fairley did not object to Page's in-court identification at trial, we conclude that his .objection prior to trial was sufficient to preserve this issue for appellate review. Admittedly, this is a close call, but we choose to coristrue Fairley's pretrial complaint as ~n objection to Page's in-court identification, recognizing that pro se litigants should be afforded a degree of latitude in making their arguments. See Commonwealth v. Miller, 416 S.W.2d 358, 360 (Ky. 1967) (explaining that pro se litigants are afforded a different standard . than that applied to those with legal counsel). Accordingly, ~e review the trial court's decision to admit evidence under an abuse of discretion standard. \ Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007) (citing.Brewer v. Commonwealth, 206 S.W.3d 313, 320 (Ky. 2006)). The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000) (citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)). We reject Fairley's first argument that Page's inability to identify him in a photographic lineup should bar him from making an in-c~urt identification. · As we have previously explained "the failure of a witness to identify a suspect from a photographic line-up does not prevent that witness from later · 6 identifying a suspect in court." Thompson v. Commonwealth, 2003-SC-0252MR, 2004 WL 2624165, 6 (Ky. 2004) (citing United States v. Dobson, 512 F.2d 615, 616 (6th Cir. 1975)); United States v. Briggs, 700 F.2d 408, 413 (7th Cir. 1983)).3 As the United States Court of Appeals for the Sixth Circuit observed: The fact that eye witnesses to an occurrence cannot make a positive .identification "of an individual from an examination of photographs of a number of persons, does not necessarily detract from the validity of their in-court identification where they see the individual in person. The weight to be given to their in-court identification is for the jury to determine. United States v. Black, 412 F.2d 687, 689 (6th Cir. 1969). See also United· -States v. De Leon-Quinones, 588 F.3d 748, 755 (lst Cir. 2009) ("To a,llow a failed identification to always bar a later identification would make little sense.").· We agree that the proper course is to permit the witness to attempt to identify the suspect in court and, if an identification is made, allow the defense to thoroughly cross-examine the witness concerning his failure to make a prior identification. The jury is fully capable of determining what weight to assign to the in-court identification. In this case, Fairley cross-examined Page regarding inconsistencies in the description of his assailant to the police and the way that Fairley appeared at the time of trial as well" as his failure to identify Fairley pretrial in the photo array. This allowed the jury to decide what weight to give 3 We cite to Thompson, an unpublished opinion of this Court, as ~e find "no . published opinion that would· adequately address the issue before the court." CR 76.28(4)(c). · · 7 .Page's identification of Fairley. Accordingly, the trial court did not abuse its discretion in permitting the introduction of this evidence. Alternatively, Fairley argues that Page's in-court identification should have been assessed by the trial court under the factors set forth in Biggers before Page was allowed to testify. 4 He requests. that this Court remand the case for an evidentiary hear~ng .. In Biggers, the Supreme Court set forth a two-prong due process test for considering an identification by a witness following-impermissible sugg~stive pretrial procedures such as a photo array or line-up. In Wilson v. Commonwealth, 695.S.W.2d 8S4, 857 (Ky. 1985), this . Court summarized the ( requirements of the Biggers test. First, "[w]hen examining a pretrial confrontation, thii;; [C]ourt must first determine whether the confrontation procedures employed by· the1 police were 'suggestive.'" Id. Second, if the Court determines that those procedures were suggestive, "we must then assess the possibility that the witness would make an irreparable misid~ntification, based upon the totality [ofj the circumstances and in light of the five factors enumerated in Biggers." Id . . Fairley requests this Court extend Biggers to apply to in-court iderttifications. In support of this argument, Fairley relies on Kennaugh v. "The Bi.ggers factors are: (1) the opportunity of the witness to view the defendant; (2). the witness's degree of attention; (3) t4e accuracy of any prior descriptions; (4) the level of the witness's certainty when confronting the defendant; and (5) the time between the crime and the confrontation of the defendant." Commonwealth l). Parker, 409 S.W.3d 350, 353 ·(Ky. 2013) (citing Savage v . . Commonwealth, 920 S.W.2d 512, 513-14 (Ky. 1995)). 4 ·8 Miller, 289 F.3d 36 (2nd ·cir. 2002). The Kennaugh Court was faced with an issue simil~ to that presented in the case at bar - namely a witness· failed to . identify the accused prior to. trial after reviewing a line-up and photo arrays, . . bu.t at trial made an in-court identification. Id. at 39-40. Ultimately, the Kennaugh Court concluded that the application of the Biggers test was not mandatory for state courts under these circumstances, but that state courts were obligated to take actions to ensure that due process requirements were respected. Id. at 45-46. The Kennaugh Court also noted that ."the Fourth, Fifth, Sixth, Eighth, Ninth, and Eleventh Circuits have held that in-court .identification testimony in the absence of a pretrial identification must satisfy . . ·the Manson [v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243 (197!)] reliability standard, eith~r by meeting the Biggers requi~ements or· in other ways." Id. at 47 (citations omitted).s However, over the years a significant numper of jurisdictions have ___,·rejected the applicatioi:i of Biggers to in-court identifications .. See, e.g., United States v. Domina, 784 F.2d 1361, 1369 (9th Cir. 198.6) (declining to extend Biggers to an in-:-court identification, noting that "[t]he Supreme Court has not extended its exclusionary rule to in-court identification procedures that are suggestive because of the trial setting.");,State v. Lewis, 609 S.E.2d 51S, 518 s Fairley also cites this Court to Commonwealth _v. Crayton, 21 N.E.3d 157, 169 (Mass. 2014), in which Massachusetts adopted a new rule mandating that "[w]here an eyewitness has not participated before trial in an identification procedure, we shall treat the in-court identification as an in-court showup, and shall-admit it in evidence only where there is 'good reason' for its admission." 9 (S.C. 2005) ("We conclude, as .the majority of courts have, that Neil v. Biggers does not apply to in-court identifications and that the remedy for any alleged . . suggestiveness of an in-court identification is cross-examination and· argument."). Although the relatively recent opinion in Perry v. New Hampshire, 565 U.S. 228 (2012), did not involve an in-court identification (and thus did not settle the debate beyond the requirements of federal due process on the facts . presented6), it does give strong support for the limitation of Biggers, as well as its predecessors and pr9geny, to out-of-cou,rt identifications resulting from suggestive circumstances arranged by the police. In Perry, the police were ' interviewing a woman in her apartment who had witnessed a man breaking into cars in the building's parking lot. When asked about the description of the man she saw, the woman walked to her kitchen window and pointed to a ma_ri standing next to a police officer in the parking lot, indicating he was the rrian. Sbe subsequently was unable to identify Perry in a photo array: At trial, the· woman and the police officer who interviewed her both testified about her pretrial "kitchen window" identification. Framing the issue presented as "the reliability of an eyewitness identification made under suggestive circumstances not arranged- by the Perry was tried in a New Hampshire state court and raised a federal due process argument regarding a pretrial identification. In Perty, the United States Supreme Court ac!dressed what the federal Due Process Clause requires in those circumstances. States are, of course, free to set their own bar for admissibility of pretrial and in-court identifications higher than that set by the Supreme Court. 6 10 police,"·Justice Ginsburg, writing for an 8-1 majority, reviewed the line of cases beginning with.Stovall v. Denno, 388 U.S. 293 '(1967) and.~tilminatingwith Biggers and Manson. 565 U.S. at 236. ·The Court rejected the idea that trial judges should "prescreen eyewitness evidence for reli~bility any tirrie an . r. identification is made under sugge_stive circumstance's." Id. at 240. The Court noted that a primary aim of the. Biggers line of cases was deterrence of law · enforcement's use of improper lineups, shoWups, and photo arrays, a factor clearly not present in the case befor~ it. ·Id. at 241. Perry's focus on isolated phrases in the· case law regarding the "reliability" of evidence "would open the door to judicial preview, under _the banne~ of due process, of most, if not all eyewitnessidentifications." Id. at 243. Pointec:py, the Court observed that many eyewitness identifications are problematic for any number of reasons . . including inter alia a witness's poor vision, the stress of the encounter, personal grudges and cross-racial perceptions, and most identifications procedures "involve some element of suggestion. Indeed, all in-court ide~tifications do." Id. at 244. (emphasis supplied). In refusing to extend Biggers, the Perry Court emphasized the safeguards built into our adversary system·, including the right to confront the eyewitness through effective counsel who can cross..:examine the witness and argue persuasively, eyewitness-specific jury instructions, andthe constitutional requirement that guilt be proven '· . beyond a reasonable doubt .. Post-Perry, several federal circuit courts have concluded that there is nothing impermissibly suggestive about an initial-in-court identification even 11 when it is obvious that the defendant is the person sitting with counsel at the defense table. U.S. v. Morgan, _F.Supp.3d_, 2017 WL 1277419 (D. D.C. 2017) (collecting cases). See also U.S. v. Hughes, 562 F.Appx. 393, 398 ·(6th Cir. 2014) (in-court iden.tification.of only African-American in courtroom was not impermissibly suggestive because Perry clarifies that due process rights are · met through "ordinary protections in trial.") However, in Morgan, the federal· district court opted to read Perry as rejecting judicial prescreening of all incourt identifications but n.ot changing the concept that some circuits applied pre-Perry, i.e., "due process concerns require such screening for an initial in- court identification that is equivalent to a one-man showup." 2017 WL at 1277419 at 3. Having- considered Perry and other authorities, we decline to extend · Biggers to in-court identifications. The trial safeguards identified in Perry were present and fully utilized here and there i_s no sound basis for requiring a posttrial hearing wherein the trial judge would assess the reliability of Page's identification of Fairley. 7 We trust that these same s8.feguards will continue to protect the· rights of defendants first identified in court, leaving the jury with responsibility fqr assessing the credibility of the identification in each case. As. often noted, throughout Anglo~·American history, "[d]ecisions as to human life; liberty and public and private property have been r<;>utinely made by jurors and in: Wilson, this Court held that "it is within the sound discretion of the trial court to determine whether an independent pretrial line-up is necessary." 695 S.W.2d at 858. Nothing in today's opinion limits that discretion. 1 12 extraordinary confidence has been placed in this decision-making process." Curry v. Fireman's Fund Ins. Co., 784 S-.W.2d 176, 1_78 (Ky. 1989). II. The Trial Court Properly Instructed the Jury.- Fairley further contends that the trial court erred by failing to instruct the jury on the lesser-included offense of facilitation to first-degree robbery. This ~rgument is properly preserved, and we review the trial court's decision "not to give a jury instruction . . . for abu~e of discretion." . Hunt v. . . . Commonwealth, 304 S.W.3d 15, 31 (Ky. 2010) (citing Williams v. Commonwealth, 178 S.W.3d 491, 498 (Ky. 2005)). "The trial court "is required to instruct the jury on the 'whole law of the case, and this rule requires instructions applicable to ~very deducible or supported to ru;iy extent by the testimony." state of the case M~rphy v. · Commonwealth, 509 S.W.3d 34, 48 (Ky. 2017) (quoting Taylor v. Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999)). ·Additionally, the trial court is obligated to "instruct the jury on all lesser-included offenses which are . . supported by the evidence." Yarnell v. Commonwealth, 833 S.W.3d 834, 837 (Ky. 1992). Kentucky Revised Statute (KRS) 506.080 sets forth the elements of criminal facilitation to commit a crime and states in pertinent p~rt, "[a] person is guilty of criminal fa9ilitation when, acting with knowledge that another person is committing or intends to commit a crjme, he engages in conduct which knowingly provides such person with means or opportunity for the 13. commission of the crime and which in fact aids ~uch person to commit the crime." At trial, Fairley requested the trial court to instruct the jury on the lesser-included offense of facilitation tq first-degree robbery. The basis for Fairley's request was his testimony that he witnessed an African-American man beating a white male and offered the assailant ~ ride to another area of town. The prosecutor objected, explaining that in his testimony Fairley did not claim knowledge ofan ongoing robbery, but rather an assault. l!ltimately, the trial court declined to instruct the jury on facilitation to .first-degree robbery. The trial court properly denied Fairley's request for a facilitct.tion to firstdegree robbery jury instruction as it was not supported by the evidence. In his trial testimony, Fairley explicitly denied knowing that a robbe,ry was taking place, claiming instead that he witnessed an assault. To facilitate first-degree robbery, Fairley needed.to have knowledge that an individual was committing ~r intending to commit robbery and then take steps to aid them in the completion of the criminal offense,. As Fairley denied knowing that a robbery was ongoing, he lacked the requisit~ mental state. to commit facilitation to first- . degree robbery. Accordingly, the trial court properly denied Fairley's requested jury instruction. III. There was Sufficient Evidence to Convict Fairley of Receiving a Stolen ·Firearm. Fairley also contends that there was insufficient evidence to sustain his . ' conviction for receiving a stolen firearm. He concedes that this allegation of · error is unpreserved, but has requested that the Court review this allegation of 14. error for palpable error under Kentucky Rule of Criminal Procedure (RCr) 10.26. The palpable error rule requires reversal when "manifest injustice has resulted from the error:." Elery v. Commonwealth, 368-"S.W.3d 78, 98 (Ky. 2012) (quoting RCr 10.26). In evaluating whether there has been manifest injustice, the Court focuses "on what happened and whether the q.efect -is so manifest, fundamentaJ and ianambi~ous that it threatens the integrity of the judicial I process." Martin v. 'Commonwealth, 207 S.W.3d 1, 5 (Ky .. 2006). At trial, the Commonwealth establisqed the. stolen nature of the firearm through the testimony of Officer Ronald Ingram of the Hopkinsville Police Department. ·officer Ingram recounted that in June 2013, he had prepared a report detailing information about a firearm that had been stolen from an automobile. As part of that report he recorded the' serial number of the weapon and entered the informatio~ into the National Crime Investigative Center (NCIC) database. When Fairley was arrested, the police found that stolen gun in the rear passenger compartment of the car in which he was sitting, approximately a foot away from him. At trial, Fairley denied ownership of the weapon and explained that he was incarcerated on the date it was reporteq stolen. Further, Fairley claimed that he did not even realize that the firearm was in the car when he was apprehended by police, alleging that the gun had been obscured by newspapers in the backseat of the vehicle. On appeal, Fairley contends that there was insufficient proof presented by the Commonwealth to establish that he knew or had reason to know that 15 the firearm was stolen. 8 While he reiterates that it was not his gun, Fairley raises for the first time the argument that the length of time fro1!1 when the gun was stolen to its recovery in Fairley's possession (approximately fifteen months) was ~oo lo?g to serve as evidence establishing Fairley's knowledge that the g:un was stolen. Fairley argues that the presumption in KRS 514.100(2) which states "[t]he possession by any person of any recently stolen movable property shall be prima facie evidence that such person knew such property was s'tolen," should not apply because a fifteen-month period is too long to be considered . . "recently stolen." . In considering what meaning to give to the term "recently stolen" we note that "[t]he term 'recently' in this connect.ion has no fixed and definite meani.ng, and is a variable term, depending upon· other circumstances." Co'nsidine v. United States, 112 F.. 342, 349 (6th Cir. 1901). Admittedly whether the firearm at issue was "recently stolen" is a close call given the fifteen-month period . ~ between the theft of the firearm and its recovery. We note that courts have found lengthy lapses of time (albeit shorter than the one· p~esented here) to be within the permissible time limitation of the presumption. See e.g. Lee. v. United States, 363 F.2d 469~ 4 75 (8th· Cir. 1966) (lapse of five months from s KRS / 514.110(~) states: A person is guilty of receiving stolen property when he receives, retains, or disposes of movable property of another !mowing that it has been stolen, or having reason to believe that it has been stolen, unless the property is received, retained, or disposed of with intent to restore it to the owner. · · 16 time_ of burglary to apprehension with stolen securities sufficiently recent to --.., ~,... r . justify inference of guilt); Hale v. UnitedStates, 410 F.2d 147, 151 (5th Cir .. 1969) (six-month period from time of automobile theft to vehicle's recovery sufficient to infer guilty knowledge); But see Gargotta v. United States, 77 F.2d. 977, 982 (6th Cir. 1935) (possession of pistols 293 days after theft, "cannot· in any sense be considered so recent a possession as. to sustain a finding of guilty knowledge that the property was stolen.").9 Fairley did not raise this issue at trial but now insists that the recovered handgun was not "recently stolen" so as to bring into play the presumption in KRS 514.100(2). This argument misses the mark on palpable error rev!ew. A stolen handgun (used in the robbery of Page given the DNA analysis) was in Fairley's possession. He testified that he did not own the gun, he was. incarcerated when it was stolen, and he did not realize it was in the car he was . - . . sitting in. However, in his testimony Fairley also admitted to being a convicted felon and a drug dealer and he tried repeatedly to distance himself from the handgun found within inches of him at the time of his arrest, when he was the only person seated in the car. We cannot say that the palpable error standard is met here because there simply is no manifest injustice on these facts. 9 Fairley also cites this Court to Hayes v. Commonwealth, 175 S.W.3d 574 (Ky. 2005), in which the Court noted in dicta that the theft of a motorcycle three to four . months before it was recovered was insufficient to trigger the presumption in KRS 514.110(2). . 17 IV. The Commonwealth's Questioning of Fairley Regarding His Violent Past Did Not Constitute Palpable Error. Fairley argues that the Commo:µwealth erred by imperinissibly . . ' . questioning him about a prior bad act - an assault .. He concedes that this· argument is u~preserved and again requests palpable error review under RCr 10.26. During Fairley's direct examination, he opined that he was a "nice" guy. On ·cross-examination, the following exchange occurred: Prosecutor: You said you were a nice person, do nice people assault people? Fairley: I'm not gonna say nice people don't assault people, I feel if Prosecutor: Have you ever assaulted anyone? Fairley: Yes sir. Prosecutor: Ok. The Commonwea11*J. contends that Fairley "opened the door," t9 the \ discussion of his prior assault by claiming to be a "nice" person. Fairley contends that the Commonwealth was not permltted to address specific instan.ces of Fairley's conduct, su~h as his prior assault. "Generally stated, 'op~ning the door' to otherwise inadmissible evidence is a form of waiver that happens when one party's use· of inadmissible evidence justifies the opposing party's rebuttal of that evidence with equally inadmissible proof." Commonwealth v. Stone, 291 S.W.3d 696, 701-02 (Ky. 2009). However, where the defendant places his charac::ter at issµe, the Commonwealth is limited to character evidence in the form of reputation or 18 opinion, and is barred.from raising specific instances of conduct. Purcell v. Commonwealth, 149 S.W.3d 382, 399 (Ky. 2004) overruled on other grounds by Commonwealth v. Prater, 324 S.W.3d 393, 400-01 (Ky. 2010) (citing Kentucky Rule of Evidence (KRE) 405(a)). In the case at bar, the Commonwealth impermissibly questioned Fairley about a prior bad act- the assault- to rebut his assertion of good character. While the Commonwealth's questioning was improper, we do not find that the . introduction of this evid~nce rises to the level of palpable error. We note that. the questioning about Fairley's prior assault was brief and made up a fleeting portion of his trial, while ·the evidence of Fairley's guilt was substantial. We thus conclude that while the Commonwealth's questioning of Fairley about his prior assault was error, this error was not palpable. CONCLUSION For the foregoing reasons, we affirm the conviction and sentence of the Christian Circuit Court. All sitting. All concur. \_ 19 COUNSEL FOR APPELLANT: John Gerhart Landon ·Assistant Public Advocate Department of Public Advocacy COUNSEL FOR APPELLEE: Andy Beshear General of Kentucky Attorn~y Perry Thomas Ryan Assistant Attorney General 20
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