Cunningham v. Commonwealth
501 S.W.3d 414
Ky.2016Background
- On July 4–5, 2011 Steve Martin’s house burned; police found several items missing, including a motorcycle later located at Allen Cunningham’s residence. Cunningham was Mirandized, gave a statement claiming ownership and a loan transaction with Martin, and was arrested and charged with theft (>$10,000), second- and third-degree burglary, and PFO status (arson and tampering were later dismissed).
- At trial Martin testified he had effectively purchased the motorcycle from Cunningham and retained the title; Cunningham testified a different transaction occurred and presented an alibi that he was in Indiana with Clifford Hutchison the night of the fire. Hutchison corroborated the alibi at trial.
- On cross-examination the prosecutor impeached Cunningham by pointing out he never told law enforcement about Hutchison before trial and emphasized the 15‑month delay in closing argument. The trial court allowed the impeachment over defense objection, relying on Taylor v. Commonwealth.
- The jury convicted Cunningham of theft, both burglary counts, and PFO; he received a 20‑year sentence. Cunningham appealed, raising (1) improper impeachment with pretrial silence about his alibi, (2) denial of directed verdicts on theft/burglary, (3) admission of victim-impact/insurance testimony, and (4) admission of hearsay that an anonymous tip led police to him.
- The Kentucky Supreme Court reversed and remanded for a new trial, concluding the cross‑examination about Cunningham’s failure to mention his alibi to police was improper impeachment under Kentucky evidence law. The Court addressed the other issues as likely to recur on retrial.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Cunningham) | Held |
|---|---|---|---|
| 1) Prosecutor impeached defendant with pretrial silence about alibi | Silence about an exculpatory alibi is impeaching because a natural response would be to assert an exculpatory alibi; Jenkins/common‑law rule permits impeachment | Cross‑examination on failure to disclose alibi violated Fifth Amendment rights and was impermissible impeachment where police did not elicit or accuse him about the July 4–5 events | Reversed: impeachment was improper under KRE 801A(b)(2) / Trigg because silence was not a response to another declarant’s statement or a circumstance that would naturally elicit the alibi; prejudice requires new trial |
| 2) Motion for directed verdict on theft/burglary (ownership of motorcycle) | Motorcycle title not transferred per statutory procedure, so Cunningham could not be convicted of stealing his own property | The Commonwealth argued facts supported a finding Martin owned the motorcycle (possessory transfer/bona fide sale), raising a jury question | Denial of directed verdicts affirmed: factual dispute on ownership for jury; trial court properly instructed jury |
| 3) Admission of victim testimony that he lost possessions and had no insurance | Testimony relevant to rebut implication Martin set fire for insurance | Cunningham argued testimony was irrelevant and unduly prejudicial sympathy evidence | Error to admit uninsured-loss testimony; irrelevant and should not be admitted on retrial (trial court abused discretion) |
| 4) Detective’s testimony that an anonymous tip led police to defendant (hearsay) | Testimony explained investigation origin | Cunningham argued admission denied confrontation and was hearsay | Issue not preserved for appeal; appellate court declined palpable‑error review given remand; left to trial court on retrial |
Key Cases Cited
- Taylor v. Commonwealth, 276 S.W.3d 800 (Ky. 2008) (discusses use of prior statements/confessions to impeach defendant)
- Trigg v. Commonwealth, 460 S.W.3d 322 (Ky. 2015) (silence as adoptive admission under KRE 801A(b)(2) requires silence in response to a declarant’s statement that would naturally evoke denial)
- Jenkins v. Anderson, 447 U.S. 231 (1980) (permitted impeachment by prior silence where silence was inconsistent with later exculpatory claim under common‑law rule)
- Commonwealth v. Buford, 197 S.W.3d 66 (Ky. 2006) (discusses parameters of adoptive admissions/silence for evidentiary purposes)
- Kotteakos v. United States, 328 U.S. 750 (1946) (standard for reversal where error may have substantially swayed the jury)