*1 effect that her convictions arising of a ser- mulative similar crimes out with Having must aside. found be set allegedly acts. Defendants sentence ies of Both error, this fails. argument no against participated in sexual offenses victims; the same the offenses occurred being on Consequently, there no error or karate studio either Defendants’ court, the the trial convictions part of of their home and most the offenses are af- Appellants and sentences of Defen- presence occurred both firmed. dants; all of the victims were students con- pattern of the Defendants. Thе CUNNINGHAM, LAMBERT, C.J.; similar, in- toward victim is duct each McANULTY, MINTON, and extent, volved both Defendants some SCHRODER, JJ., concur. are intertwined. SCOTT, J., only. in result concurs cogent The trial court’s reasons are conformity the law. v. Com Ware monwealth, (Ky.1976). 537 S.W.2d court not abuse did its discretion. Investigations
2. “Unsubstantiated”
Franklin’s argument appears to trial prejudiced be that she was when the HOLT, Appellant Junie granted motion court the Commonwealth’s prohibit offering opin from witnesses prior ions that abuse were investigations Kentucky, COMMONWEALTH unsubstantiated, argues she although also Appellee. determining from
that this foreclosed her No. 2005-SC-000128-MR. have how witnesses’ statements However, changed over wit time. defense Kentucky. testify nesses were allowed to April investigations had been made that no charges were filed as a result of the inves
tigations. Wisely understanding that the interpret
term “unsubstantiated” could be false, to mean the claims
ed were as to
which would be a statement of belief telling
whether claimants were
truth, granted the trial court the Common opinion motion to exclude such an
wealth’s
question. question would have violat This prohibits
ed KRE a witness about matters on which testifying knowledge. has personal no she
trial court was correct. Error Cumulative er- alleged that all argues
Franklin cu- negative in the have such
rors trial *2 Wheeler,
Randall L. Assistant Public Advocate, Department Advocacy, of Public Frankfort, Appellant. Counsel Stumbo, Gregory Attorney D. General of Fuchs, Kentucky, Gregory C. Assistant At- General, torney Appellate Criminal Divi- sion, General, Office of the Frankfort, for Appellee. Counsel LAMBERT, Chief Justice. Kentucky Rules of Profession seq., et Conduct, 3.130, al SCR are manda tory Kentucky lawyers. for all SCR 3.130-3.4(e) provides lawyer that a shall personal knowledge not “assert facts witness, except testifying issue when as a just personal opinion or state a as to the cause, ness of a of a wit ness, culpability litigant, of a civil guilt or innocence of accused.” lawyer a generally prohibits SCR 3.130-3.7 it? phrase How did he where Prosecutor: acting as an advocate at trial necessary likely lawyer is try- they ya’ll That Witness: was— The case bar touches witness. on burglary put robbery ing *3 Rules of Conduct foregoing Professional him. opin- rules of This and various evidence. talking you Do remember Prosecutor: ion of what propriety will examine morning? this with me among appears practice to be a common Yeah. Witness: made lawyers some where witness has you telling Do remember Prosecutor: lawyer pri- extra-judicial statements to the it? you told that he did me that he Thereafter, or the witness to trial. when Objection. Defense: give with fails to consistеnt statements, prior lawyer takes such Judge: You can answer. in the
broad liberties mode of examination Nah, just I tell actually didn’t Witness: essentially give testimony as to just say that actually I didn’t you that. substance of statement. that, he me told me that he told that he morning. it this did for first Appellant Holt was on trial burglary and to first degree complicity So, you ever don’t recall Prosecutor: robbery. He to this appealed degree in this me that the defendant telling thirty-year from his and convictions you that that trail- case told he robbed trial, sentence. At Holt denied involve er? appeal, in the crimes. On this hе
ment Nah, that’s just he told me Witness: alia, claims, prejudi inter he suffered they was him with. charging what question cial means of improper error you But he about some told Prosecutor: ing by prosecutor prosecution of a dolls? witness, Reggie Bell. with He said that involved Witness: was called Bell was the Commonwealth it. establishing in chief. during its case After you he did Prosecutor: What did he tell jail Appellant had that Bell been those dolls? with together, laying foundation modest Um, in garage. Witness: testimony, prosecutor, intended Bell, garage? Prosecutor: What referring Appellant, “What asked answered, say you?” “He did hе Bell house, I don’t know whose Witness: just what he in for.” The said that’s whose it was. asking, prosecutor pressed the witness you again Do remember Prosecutor: ,” “So, at you never told that he he did— morning me about this speaking objected, Appellant’s attorney point things? these put the defendant where asked claiming that the had been Yeah. Witness: answered. court overruled Objection. Defense: objection allowed Judge: You answer. follows: continue as you telling Do remember Prosecutor: he you Did he tell
Prosecutor: ever it you that the defendant told me that trailer? actually robbery аt this did garage? mom’s was in his Nah, actually say he ain’t Witness: them they found actually That’s where trailer. Witness: at that He didn’t something at, garage his mom’s just, actually just say that. He didn’t her, like that. say that he robbed but— you’re
Prosecutor: But saying put very now doubt that she Bell words you telling say don’t recall me that the de- refused his mouth. The you put fendant told that he them in prose- thus informed that Bell had told the garage? mom’s Appellant cutor that had admitted the rob- bery. placed This Nah, never, I Witness: ain’t I ain’t nev- jury, before the and from the you er told put he told me he them questions, firmly form of the represented there. to it that Appellant Bell had told her that saying you Prosecutor: You’re now had admitted the crime. never told that? me *4 century More than a in ago I Common you Witness: never told that. Cook,1 wealth v. this Court considered a So, Prosecutor: you told that he not circumstance dissimilar to this one. didn’t do this? Berry When the of witness was say Witness: He never—he didn’t he did concluded, presence jury, but in the of the just or he didn’t do it. He said that Attorney the Commonwealth’s stated “Be they had him involved with it. he, Berry, Judge cause told me and Hor- you anything Prosecutor: Did he tell man, witness-room, in yesterday, the else about this? He mentioned some defendant, Owsley anything never done to dolls, garage. he mentioned a Anything doing nothing and was to him when he was else? shot.”2 trial The court instructed the Nah, somebody got Witness: he said not to consider the statement and re in process, hurt the but I don’t know no proved the Commonwealth’s nothing. names or making appeal, it. On this Court held the From foregoing, it is clear that de- improper explained remark to be as spite Bell’s denial of the substance of the follows: Appellant, statements attributed to The conduct of the commonwealth’s at- prosecutor on at asserted least four occа- torney very reprehensible, and he Appellant sions that Bell told her that had heavy punished should have been admitted the crime. The Commonwealth duty fine. It of a is commonwealth’s calling any rested its case without other attorney represent to the interest of the
witness;
im-
there was no witness who
fully
fairly,
commonwealth
with his
peached
Appellant’s alleged
Bell’s denial of
ability;
duty
utmost
but it is not to
Nevertheless,
prosecutor
statement.
fact,
make a
of
statement
credence
in
closing argument,
say
stated
her
“I will
always
strength-
of which is
more or less
quick.
this and end it
The Commonwealth
рosition,
ened
his official
outside
time,
your
would never have wasted
if it
evidence,
may
the record or
tend
going
get
had known what it was
to
out of
in
degree
prejudice
the least
Mr. Bell. I will move on.”
common-
rights of the accused. The
prosecutor’s
to the
questions
effect
wealth desires and
entitled
asserting
placed
guilty by
what Bell had said to her
conviction of the
fair and hon-
means,
upon competent
in
position making
orable
testi-
representation.
mony;
factual
From the tenor of
but it does not desire a conviction
Bell,
leading questions
by any
accomplish
her
thеre is no
other means. To
this
Id. at 156.
Ky.L.Rptr.
Ky.
1. 9
end,
telephone
ous
conversation
duty
it
is the
of the common-
allegedly
attorney to
his entire
a restaurant
receipts
wealth’s
devote
but,
be-
ability;
provide
and utmost
in
energy
falsely dated
order
were
said,
making
case,
fore
he is not excusable
As in this
alibi for the defendant.
any
of fact outside of the evi-
questions
framed his
slightest
be in the
“[ijsn’t
dence which
like,
you
told
phrases
true
degree prejudicial
rights
to the
of the me,”
me,”
you
“[t]he
“did
tell
case,
In
accused.
the common-
In
you
or not
told me....”5
is whether
witness,
attorney, not as a
wealth’s
prоsecutor implied that
doing,
so
flatly
made a statement of fact which
that he
previously
had
admitted
defendant
and, if
Berry,
contradicted the witness
on the
unsure about whether the date
believed,
Berry,
convicted
in the minds
accurate,
though,
receipt fact
even
jury,
perjury.
There was a
stand,
on the
the defendant denied ever
at-
plain course for the commonwealth’^
Wyoming Supreme
being unsure.
introduce
torney
pursue,
—either
interrogation
of this
disapproved
a witness
Judge
himself or
Horman as
technique
prose
and determined
*5
but,
Berry;
seeing
to contradict
not
way
cutоr was “in a real and not too subtle
course,
proper to take this
he should presenting
testimony
unsworn
....”6
kept
have
silent as to what occurred
The court noted
witness-room,
the
for the reason that a
by
situation can be avoided
follow-
[t]his
it,
oath,
repetition of
not under
in the
in the A.B.A.
ing
guidelines
the
set forth
hearing
jury,
incompetent
of the
Relating to the Prosecution
Standards
evidence,
very
and of a
dam-
character
3.1(f),
Function, §
provide:
which
aging
rights
appellant,
to the
of the
“(f)
avoid in-
prosecutor
The
should
doubtless left an
im-
unfavorable
ex-
terviewing
prospective
a
witness
pression
jury,
on the
not-
minds
the
presence
person
in the
of a third
cept
withstanding the
admonition
prosecutor
prepared
to
unless the
court.
by
of a
forego impeachment
witness
this,
In a case like
it
better
would
prosecutor’s
own
rights
accord with the
of the accused for
an inter-
what the witness stated in
suggest
the court to
to him or to his
to withdraw
view or to seek leave
it,
counsel that if he desired
and would
case in order to
his
from the
request,
jury
so
would be withdrawn
testimony.”7
impeaching
jury
try the
impaneled
and another
State,8
Likewise,
suggestion
prosecu
case.
If the
should be de-
Dean
clined,
complaint
of the
engaged
accused
in a similar mode of examina
tor
should not thereafter be heard.3
a
Specifically,
prosecutor
tion.
ex
following
in the
short
engaged
witness
jurisdic
More recent cases from other
change:
reached a
conclusion.
tions have
similar
Q.
my telephone con-
In
cross-
You remember
Roby
prosecutor
v. State4 the
day?
you the other
previ
witness
versation with
examined defense
about
7.
Id.
Id. at 156.
(Wyo.1978).
4.
A. was you....”12 The you asking “Do recall me specific ing. I can’t recall admitted making several of codefendant talked things that we about. statements, those related to but denied telling Q. Okay.... you Do recall me questioning to Puco. The court found the conversation that telephone in our erroneous: be very likely the defendant would appellant find this contention We again?9 thing to do this sort of injected here well prejudicial error was objected, and the trial The defendant statement, which was Using taken. jury disregard court admonished ei- against into evidence never admitted Nonetheless, the Arkansas question. last defendant, way in this in еffect ther question Supreme Court held that the placed error: reversible jury before the and was there- himself deputy prosecut- [the] The highly prejudicial. fore simply ing attorney ... did not seek purported state- reading witness, but, in testimony from the elicit questions was and the form of his ments effect, of fact made a clear statement that Gonzalez had plainly representing him testimony by under amounting to the statements to him. in fact made guise of cross-examination. widely con- practice has been This judicial prosecutor], [the .... demned officer, purpose made for the solе the trial court de Shoupe,14 In U.S. v. appellant if convincing the witness, a hostile clared the codefendant *6 free there was were allowed to remain to ask him allowing prosecutor the thus com- opinion again that he would expert rejected leading questions, specifically but he was then on mit the crimes which state prior that the witness’s the notion a court official testimony by This trial. pur impeachment could used for ments appellant’s violation of flagrant was a the went on to ask poses. prosecutor trial as impartial to a fair and right incorpo questions seventeen witness over and United guaranteed by the Arkansas out-of- prior of his rating the substance clearly so and was States Constitutions it noted that The court court statements. not be that the error could prejudicial sanctioning the precedent “find no could court’s admonish- removed the trial recitation,” that ing statement.10 practice as condemned have [c]ourts directly this issue is accounts leading self-serving A case on cloaking potentially digni- made a the Puco’s co-defendant statements with v. Puco.11 of a witness’s U.S. prosecutor’s to an of- of the ty out-of-сourt post-arrest, Puco, 761 fice, Puco in v. 436 F.2d attorney impheating States U.S. United assistant (2nd Cir.1971), proba- the increasing as called prosecutor crimes. The drug jury will consider bility at trial and that a witness co-defendant as evidence de- as substantive state- statements him out-of-court asked about the con- instruction to spite any limiting questions began prosecutor ment. The Id. 13. Id. at 355-56. 9. Id. at 356. Cir.1977). (6th F.2d 636 14. 548 Cir.1971). (2d
11.
12.Id. at
737
therefore,
States,
all;
interest,
in
and whose
121
trary,
v. United
Gaines
is not that it shall
prosecution
a criminal
(1965),
190
U.S.App.D.C.
349 F.2d
case,
justice
shall be
win a
but
before the
the content of
placing
such,
in a
peculiar
As
he is
done.
past
inadmissible
recollection
patently
very definite sense
servant
States,
recorded,
v.
377
Goings United
law,
the twofold aim of which is
(8th
Cir.1967),
n.
and as
F.2d
8
or innocence suf-
guilt
escape
shall not
prejudice of the defen
bypassing, to the
earnestness
may prosecute
fer. He
dant,
alternative measures to
reasonable
But,
do so.
vigor-indeed,
should
accomplish
legitimate
the same
result.
blows,
hard
he is
while he
strike
(2nd
Block,
v.
F.2d 618
United States
foul ones.
It is
liberty
not at
strike
denied,
Cir.),
57 S.Ct.
cert.
U.S.
im-
duty to refrain from
as much his
(1937).15
793,
representative
ordinary party
of an
not
lawyer
his or
allowing
witness of the
and
controversy,
sovereignty
to a
but of a
for that of
her
to be substituted
obligation
govern impartially
to
is
practice
whose
the witness.
a
also violates
Such
Any such
compelling
obligation
govern
as its
KRE 60320 and KRE 802.21
as
fy truthfully, by
affirmation adminis-
15. Id. at 641.
oath or
awaken the
tered in a form calculated to
16. Id. at 643.
impress
the witness’
witness’ conscience
duty to do so.”
mind with the
629,
17. 295 U.S.
55 S.Ct.
practice is
a
review,
proper
impeachment
foundation for
of
appropriate
basis
error
less
to KRE
KRE 613
pursuant
witness
reversal.
for
provides that
other evidence can
“before
error,
harmless
Justice
respect to
With
having
be
of the witness
made at
offered
ac-
dissenting opinion more
less
Scott’s
statement,
time a different
another
error,
that it was
knowledges
but contends
it,
inquired
concerning
of
with the
must be
implicated federal
harmless. As the error
time,
person
place
circumstances of
necessary
a
conclu-
rights,
constitutional
correctly
examining par-
as the
present,
beyond
“harmless
sion is that
them.”
ty
present
can
reasonable doubt.”22
means of wit-
One of the most common
evi
there was substantial
While
impeachment
is to
evidence
ness
are not
appellant’s guilt, “[w]e
of
dence
different
at another time he made a
here with whether there
concerned
however,
require,
Our rules
statement.
petitioner
on which the
sufficient evidence
evidence of the inconsistent
that before
the evi
could have been convicted without
heard,
must
may
the witness
be
question is
complained of. The
dence
it in the context of attend-
be asked about
possibility
there is a reasonable
whether
time, place
per-
of
ant circumstances
might
complained
the evidence
foundation,
such a
present. Without
sons
to the conviction.”23
have contributed
inconsistency is not ad-
prior
evidence
effectively
becamе
When
Therefore,
per-
must be
counsel
missible.
defen
guilt
confessed
for the
witness and
ques-
foundation
the latitude to ask
mitted
came from his
as if the confession
dant
ability
no
otherwise there will be
tions for
particularly egregious.
lips, the error was
by prior inconsis-
the witness
impeach
devastating evidence
A confession is
tency.
but,
is elevated
possible,
if
its effect
guilt,
however,
to establish
possible,
It is
the defen
becomes
when
with-
impeachment
proper foundation
de
happens,
dant’s voice. When
examining
credibility of the
placing
out
rights
of constitutional
fendant’s bundle
of non-lead-
attorney
By
in issue.
means
evaporates.
inquired
ing questions, the witness
dissenting opinion forgives
requirements
sufficiently
satisfy
Attorney by saying
Commonwealth’s
wit-
failure of the
of KRE
a bad
trying
“make the best of
she was
consistently with his or her
testify
ness to
Hardly
a difficult witness.”
situation with
statement,
impeachment
*8
has not been
has tried a case
lawyer
who
Thus, in the
authorized.
from another is
testimony of a witness
by the
disappointed
inquired
bar,
could have
case at
counsel
rules do not
Our
on direct examination.
identified
the
conversation
about
however, that when the witness
provide,
location,
apprоxi-
present, and
persons
the
in
may testify
his
lawyer
disappoints,
have been
would
mate time. The witness
here.
happened
And that’s what
stead.
and if
made a statement
if he had
asked
so,
If the wit-
however,
that statement.
contended,
repeat
that our
It will be
it in
repeated
the statement
unduly re-
ness denied
expressed hereinabove
view as
85, 86-87,
Connecticut,
18,
U.S.
Fahy v.
375
California,
U.S.
87
Chapman v.
386
171,
229, 230-31,
705,
173
11 L.Ed.2d
84 S.Ct.
wealth, leading questions should not have Dissenting Opinion by Justice SCOTT. been allowed. If the trial court had sus- Respectfully, agree I dissent. I do not early objection tained an based on the majority’s holding that the with the Com- form of the and directed counsel during monwealth’s the direct statements to refrain from leading questions, counsel re- Reggie examination of Bell constituted temptation рlace would have avoided the error, any If versible error. there was alleged the substance of the statement be- was harmless. jury fore lips her rather than awaiting of the witness. States, In Berger United U.S. (1935), 79 L.Ed. a case transpired S.Ct.
What here is more than some majority, the technical violation cited United States of evidence rules or that a proper by lawyers. By conduct means of Court held United States assertions, prosecutor’s Attorney’s trial so statements at- statements were Appellant placed prejudicial against tributed to were the defendant that a before any saying without witness trial had to be ordered. The attor- new Appellant made such a statement. This in ney’s Berger acts included: goes to the heart of fundamental fairness cross-exami- misstating the facts his process and due of law. witnesses; putting nation of into the things mouths of such witnesses
Appellant complains also said; they suggesting had not his give trial court failed to tendered in questions statements had been receiving property. struction on stolen In court, in personally made to him out of trial reversing asmuch as we are for a new offered, proof which no respect deem it grounds, on other we unwise that a witness pretending case. to understand decide this issue this fact-intensive *9 he had not may something On retrial the evidence not be the had said which same, persistently cross-examining and the trial court should determine said and basis; upon assuming give whether to a lesser included offense the witness evidence; facts not in of bul- present prejudicial instruction based on the evidence witnesses; However, in lying arguing that it is the and with and ed. we reiterate in thor- general, conducting himself duty give of the trial court to instructions 740 added). Brown (emphasis See testimony) man- improper and
оughly indecorous Commonwealth, 520, 440 S.W.2d 524 v. ner. 611(c) (a rule pre-KRE ease (Ky.1969) Yet, 84, at 631. at 55 S.Ct. 295 U.S. could the Commonwealth holding that by the States despite all of the acts United leading hostile and ask treat a witness as in Attorney Berger, the witness was though even questions pointed out that plainly since the wit- by the Commonwealth called against Berger had been the case [i]f questions to answer ness was reluctant said, or, courts have strong, as some Commonwealth, asked), v. 973 Tamme ‘overwhelming’ a guilt of his evidence 13, that the (Ky.1998) (stating 27 S.W.2d reached. might conclusion be different in di- leading questions prohibition against Moreover, not here a case we have princi- not an absolute rect examination is prosecuting of the the misconduct where ple). confined to a sin- attorney slight was for five testimony of Bell lasted The instance, miscon- but one where such gle in a trial that stretched on for minutes persistent, pronounced duct was trial, the Com- days. During three effect probable cumulative with multiple witnesses presented monwealth disregarded cannot be provided ade- who testified for hours inconsequential. Holt without quate evidence to convict (citations 89, at 633 295 55 S.Ct. U.S. included, testimony Bell. Such еvidence omitted). against Ber- main evidence to, testimony from was not limited but Attor- than the United States ger other stating that Holt witnesses ney’s statements was robbery, planning the during discussions criminal record. long with a accomplice to was referred that one of the robbers Id. that Holt’s robbery, at the Holt’s nickname The statements of Commonwealth’s during stolen was found in the car DNA matter do not come close Attorney that Holt did robbery, a witness stated intentional malfeasance to the level of he could be convicted not believe Attor- by the United States demonstrated the fact glоves, and crime because he wore tape A of the trial ney Berger. review in the goods were found that some stolen the Common- clearly demonstrates resi- from Holt’s trash across the street an intent Attorney being acted not with moved at his apparently wealth’s dence after Thus, of frustration testify, simply differing but out request.2 mother’s And, overwhelming since Bell a hostile witness. evidence Berger, there is hostility by evading the of the statements regardless Holt demonstrated convict any Attor- questions of Commonwealth’s of the Commonwealth’s on Holt’s leading ques- they may have had implications to usе ney, right she had a Commonwealth, (Lead- 611(c) KRE guilt. him.1 See prompt tions to Stanford amended, order (Ky.1987), be used on S.W.2d should not ing questions 102 L.Ed.2d 109 S.Ct. except as 488 U.S. of a witness examination direct affirmed, 492 (1988), judgment witness’ develop necessary Court admitted brief to this 2. Holt in his trial record that clear from the 1. It is not support a objected adequate the Common- evidence Holt’s counsel there leading. they were questions because the rob- finding wealth’s he did in fact commit objection on the only ground for stated bery. "asked first was that the record and answered.” *10 741 says evi- isn’t counsel L.Ed.2d 306 dence. What 106 U.S. S.Ct. exceрtions there are (1989) (admission dence. Now redact- of codefendant’s as evidence you that rule that consider the defen- implicated confession which ed by the wit- presented is only that which accomplice was harmless error dant as his And if exceptions. are nesses. There beyond a reasonable doubt because evidence). exceptions be one of those there should overwhelming of So presence tell of this trial we’ll during the course there much is that were evidence clearly, very specifical- you very here, beyond harmless a error would be those you hear one of ly. But unless doubt. reasonable rule of accept can as a exceptions you Moreover, given at trial the statements only presented this case that evidence is case, given the actually helped Holt’s before by who testifies live witnesses cross exami- “bumbling” on direct. Holt’s you. example: nation is one added). jury clearly was (emphasis then, your to reiterate Counsel: Just accept nothing instructed that it was to Bell, testimony then Mr. is Junie as evidence unless lawyers that the said you any Holt never told he committed general principle A prompted to do so. robbery? jury ignore able to evi trial is that a is Naw, actually me Mr. Bell: he ain’t tell told to do so the trial court. dence when Naw, just just did it. he said that’s Commonwealth, 862 Alexander v. See they him charging what was with. on (Ky.1993), overruled S.W.2d just Counsel: You discussed what he by Stringer v. Common grounds other being charged with? (“It wealth, (Ky.1997) is 956 S.W.2d Mr. Bell: Yeah follow normally presumed jury that a will that he it? Counsel: Not did disregard inadmissible instruction Mr. Bell: Naw. inadvertently presented to evidence that is clearly Holt able to the cross use (1) it, overwhelming is an unless there any up examination to clear statements jury probability that the will be unable Attorney and to em- Commonwealth’s (2) admonition; and follow the court’s misunderstanding phasize inept her effect of the strong likelihood that Thus, actually said. it was the what evidence would be devastat inadmissible Attorney credibility of the Commonwealth defendant.”). The statements ing hurt; that was not Bell’s.3 Attorney by the Commonwealth’s made enough to lead definitely strong not were context, jury Putting this event disregard could not one to believe during trial voir dire was told court the contents of her statements them and that: obviously damaging not to the defen were you accept can Ladies and Gentlemen the context of the cross-exami dant within any trial and trial that principle of this the court’s admonition. nation and you you may sit that the evidence future may be situations in the present- is that There should consider may commit reversible testify you by ed to the witnesses who when through by asserting statements you. say I isn’t evi- error live before What never have wasted Commonwealth would the Commonwealth’s 3. Because time, help going Bell did not her it was your knew the if it had known what case, time, a waste of she made and was get Bell.” out of Mr. closing argument "The in her *11 evi- questioning improper constitute This is not Here the Com-
dence. one. make
monwealth’s tried to
best of a bad situation with a difficult did not impermissi-
witness and intend to
bly testify. simply There no indication Attorney intend-
that the Commonwealth’s in this instance the Rules of
ed to violate I re- Accordingly,
Professional Conduct. dissent.
spectfully
CUNNINGHAM, J., joins this dissent. FIELDS, Appellant
James Lee Kentucky,
COMMONWEALTH of
Appellee.
No. 2005-SC-000610-MR. Kentucky. Court of
April