John Fairley III v. Commonwealth of Kentucky
2016 SC 000021
| Ky. | Oct 24, 2017Background
- On Sept. 2, 2014 Charles "Bird Dog" Page was robbed and struck in the head with a pistol; he later identified Fairley at trial as one of the assailants.
- Police investigation placed Fairley (on GPS ankle monitor) near the scene; Fairley was later found alone in the back seat of a car with a firearm that had been reported stolen; DNA from blood on the gun and vehicle matched Page.
- Searches recovered cocaine and marijuana from a vehicle tied to Fairley; Fairley was on court-ordered home incarceration at the time of the incident.
- Fairley was convicted by a jury of: first-degree robbery, receiving stolen property (firearm), first-degree possession of a controlled substance (while armed), and possession of marijuana (while armed); total sentence 20 years concurrent.
- On appeal Fairley challenged: (1) the trial court permitting an in-court identification after an earlier failed photo lineup; (2) denial of a jury instruction on facilitation to first-degree robbery; and raised two unpreserved claims for palpable error review: (3) insufficiency/palpable error as to receiving a stolen firearm; and (4) improper Commonwealth questioning about a prior assault.
Issues
| Issue | Fairley’s Argument | Commonwealth’s Argument | Held |
|---|---|---|---|
| Admissibility of in-court identification | In-court ID should be barred because Page failed to ID Fairley from a photo lineup | In-court ID is permissible; cross-examination and jury assessment suffice | Court affirmed: in-court ID admissible; trial court did not abuse discretion |
| Need for Biggers pre-screening/hearing for in-court ID | Trial court should have applied Biggers factors or remanded for a Biggers hearing | Biggers is for suggestive out-of-court procedures; ordinary trial safeguards suffice | Court declined to extend Biggers to initial in-court IDs; denied remand |
| Jury instruction on facilitation to first-degree robbery | Requested instruction because Fairley testified he gave a ride to an assailant | Evidence showed Fairley denied knowledge of a robbery (only claimed he saw an assault) | Court affirmed denial: facilitation not supported by the evidence (no requisite knowledge) |
| Sufficiency/palpable error as to receiving stolen firearm | Fifteen-month gap between theft and recovery defeats presumption that possession implies knowledge it was stolen | Stolen gun found within inches of Fairley; DNA and surrounding facts supported conviction | Court rejected palpable-error review; evidence sufficient and no manifest injustice |
| Prosecutor questioning about prior assault | Questioning improperly elicited specific bad-act evidence in rebuttal of Fairley’s claim to be a "nice" person | Commonwealth argues Fairley opened the door to character rebuttal | Court: questioning was error but not palpable (brief and not outcome-determinative) |
Key Cases Cited
- Neil v. Biggers, 409 U.S. 188 (1972) (due-process framework for reliability of identifications following suggestive pretrial procedures)
- Perry v. New Hampshire, 565 U.S. 228 (2012) (limits Biggers; trial safeguards often suffice for in-court IDs not arranged by police)
- Manson v. Brathwaite, 432 U.S. 98 (1977) (reliability standard for admissibility of eyewitness identification evidence)
- Wilson v. Commonwealth, 695 S.W.2d 854 (Ky. 1985) (discussing Biggers factors and trial court discretion over pretrial lineups)
- Kennaugh v. Miller, 289 F.3d 36 (2d Cir. 2002) (consideration of in-court IDs after failed pretrial IDs; state courts need safeguards though Biggers not mandatory)
- United States v. Black, 412 F.2d 687 (6th Cir. 1969) (failure to identify from photos does not bar later in-court identification)