Lanham v. Commonwealth

then later assert the statute of frauds as a performance.

defense to reasons, respect-

For the above stated

fully dissent.

COOPER, J., joins this dissent.

Phillip LANHAM, Appellant,

v. Kentucky,

COMMONWEALTH of

Appellee.

No. 2003-SC-0268-MR.

Supreme Kentucky. Court

Aug. 2005. Boyce, Man- Appellate

Donna L. Branch ager, Advocacy, Department Public Frankfort, for Appellant. Counsel Stumbo, General, D. Gregory Attorney General, Havey, Attorney James Assistant Division, Appellate Criminal At- Office of General, Frankfort, torney Counsel Appellee.

I. INTRODUCTION Lanham, Appellant, Philip was convicted murdering tampering wife and physical evidence his crime. He in prison. sentenced to life He that claims to allowing the trial court erred recording hear an unedited of his confes- police sion wherein a officer repeatedly him of lying, admitting accused inflam- matory from the and diary, entries victim’s grant him refusing a new trial based prejudice stemming from the actions family in Be- the victim’s the courtroom. hold that the officer’s comments cause we necessary provide Ap- context for response, pellant’s Appellant’s and because preserved that were our other claims Ap- prejudicial, we affirm review were pellant’s convictions.

II. BACKGROUND and Appellant his wife called 911 several times between October 5 and October fine, inju- neither had call, they were and Appellant the first During 2001. problems had ries. his wife mental claimed that suicidal, he that asked

and was again on the eve- called 911 Appellant to take to the hos- ambulance sent be 2001. He told of October ning dispatcher The 911 told pital. asleep, had fallen that his wife dispatcher ambu- pay he have to for the that breathing, barely she was hospi- go lance if his refused wife had frozen to death. looked like she she got phone wife on the tal. hy- thought she had that he He also said go dispatcher told the she wanted be that an ambulance and asked pothermia not sure to the she was hospital, sent. then dispatcher she sick. The

that was firefighters, Shannon Two volunteer Appellant that he needed to obtain told Gadd, po- and two state Causey and Carl from the sheriffs mental health warrant officers, De- Trooper Ashley Mike and lice do so be- Appellant office. declined to Ap- Stephens, responded to tective Robert his wife. stay cause he had no one with they call. entered pellant’s When later, wife days Appellant’s house, that there was blood they Several noticed husband carpet large potted called stated that her that two 911. She on the and house. over. The house was to force her out of the had been turned trying plants Appel- and and of bleach. then she would call back warm smelled She said was The tried in bed with the blankets hung up phone. dispatcher lant’s wife was She had bruises back, answer, up to her neck. got pulled to call no and tried on face and blood lacerations on her police. wife and Appellant’s contact the state breathing and mouth. She was dispatcher her again, then called 911 and the wife was dead. pulse. Appellant’s had no department told her that the sheriffs sending be the house. someone to no emotion when Cau- Appellant showed Appellant’s Appellant also said that wife him that his wife was dead. sey informed door, that trying was to kick down her Ashley if had Trooper asked she Appellant they day, had and drinking both been Ashley Trooper said hypothermia. died of weap- that while did not have a Appellant died, but did not know how she that he on, there loaded weapons Appel- her had bruises on head. that she A deputy Ap- house. sheriffs arrived contacting go about lant also asked how to Ap- around Both pellant’s p.m. house 11:00 his wife’s life insurance someone about pellаnt and his wife were drunk. that Appellant troopers told the policy. that deputy Appellant’s later testified wife before, gotten night had drunk his wife injuries and refused had no visible that she times, passed and then fallen down several or to his offer to take her somewhere else got- he Appellant said that also had out. pick There up. call someone to come her passed Appellant out. ten drunk and Appellant’s 911 call was another from up woke on the claimed that when he night, Appellant’s later wife house morning of his wife was on October again depu- called and said a sheriffs her in and put him. He bed floor beside out to the house. ty need not come that he He claims cleaned house. he that she to call 911 when noted decided Police day, Kentucky two State The next getting better. was to do a Troopers Appellant’s house went Appellant Appellant’s Trooper Ashley wife was noticed “welfare check.” forehead, cuts drunk, on some small cleaning had a cut his Appellant was hands, right his said his some bruises under his wife on house. Both arm and on his Appellant’s side. face Appellant was indicted for murdering yellow, looked somewhat but there were no his wife and for tampering physical noticeable bruises on it. He also had a trial, taped evidence. At interview large collarbone, bruise at his scrape on played and excerpts shin, injury and an to his left foot. journal wife’s jury. were read to the Trooper Stephen taped conducted a in- The medical examiner testified that an terview of Appellant later in the evening. examination of the body victim’s revealed a interview, During the Appellant stated variety of external bruises and contusions. split he and his wife half a case of The victim hemorrhages also had small beer on October 10. He claimed that he face, neck, her eye- and inside her lower asleep fell on the couch and that his wife lids, all of which were consistent with was still awake at that time. When he smothering, choking, or strangling, he- awoke morning, the next his wife was aorta, morrhages scalp, her and the passed him, out on the floor beside so he muscles her neck. The medical examin- moved her Appellant initially to the bed. er said concluded that she that he knew his wife had died from as- was dead when her; he phyxia moved later he by smothering said that he caused or suffoca- thought asleep. she had been again He tion due to compression of the nose and admitted to cleaning the house after mov- mouth. The medical examiner also found wife, ing his but stated that he had done so that she had alcohol and in valium they because had torn up the house while blood. drunk. Appellant also said that his wife Appellant moved for a directed verdict

had repeatedly fallen down and had hit acquittal, jury which was denied. The “corners” because she was so drunk. La- Appellant guilty found of Murder and interview, in ter the Appellant claimed that Tampering Physical with Evidence and his wife had frozen to death. He also recommended in prison sentences of life claimed that he and his wife had not been trial, fighting, years. days and five “everything Ap- that was a Ten after black- out,” memory his fuzzy, pellant was and he could filed a motion to set aside sen- really not happened. remember what had family tence because the victim’s had been crying photos when of the crime scene Toxicological testing indicated that Ap- were shown and they alleged- because had blood, pellant had no alcohol in his but that ly appeared in court during sentencing the t-shirt, he had taken A valium. which was phase wearing photographs buttons with partially burned and had a substance that victim it, the on them. The trial court denied appeared to be blood on was later found Appellant’s the microwave at A Appellant finally house. the motion. was sen- pillow blood stained was also found the prison tenced to life in for the murder and Testing house. that showed the blood on years, concurrently, run tamper- five carpet the near front the window was simi- physical appeals evidence. He lar to Appel- the victim’s. Blood similar to this right.1 Court as a matter of couch, lant’s pillow, was found the the bedroom, carpet towel III. ANALYSIS machine,

washing and the bath mat. Tests Stephens A. of the substance on Comments Detective the t-shirt were incon- During Appellant’s clusive. Taped Interview 110(2)(b). § 1. KY. CONST. played to

Appellant’s taped first that statement was claim error is When the jury, comments Stephens’s Detective improperly the trial court allowed jury heard his re- were left intact. play Commonwealth to an unedited version truth- Appellant’s comments about peated During audiotaped interrogation. of his along with during fulness the interview interrogation, the last three-fourths of story. shifting, inconsistent Appellant’s Stephens repeated state- Detective made Appellant Appel- ments to about whether the Issue 1. Preservation of told, telling All lant was him the truth. the merits of Before can address we interrogation at least taped includes claim, if we must determine detective, fifteen such statements ap- properly preserved the error was Appellant had including that “better start trial, Appellant’s pellate review. Before truth,” telling only way “the out in limine to lawyer made an oral motion truth,” to tell “not Appellant was extensive Stephens’s exclude Detective truth,” telling not that the would Ap- commentary. The trial court denied Appellant, Appellant believe and that motion, ruling that the comments pellant’s “lying.” “just typical interroga- police part they have tion and that techniques” response Between and the detec- Ap- in closing argument. to be addressed comments, tive’s Appellant’s story of what object pros- did when pellant again happened on the wife night his died shifted play tape trial. sought ecutor repeatedly. For first example, beers, stated he only had three that Appel- The Commonwealth claims then stated he had been He drunk. lant did issue because he preserve claimed that when knew up, he woke he object tape during did not unedited dead; response his was to the wife v. trial. cites to Tucker Com- comments, monwealth,2 then that detective’s he claimed where we held: he his As the thought asleep. wife was the use approved While this Court has progressed, Appellant gave interview de- of motion in limine as a means obtain- tails about what allegedly happened rulings concerning ad- ing pretrial night, e.g., evidence, had his wife received we mission and exclusion of many body marks and on from repealed contemporaneous bruises have not falling may running objection claiming down and into be- rule. One error corners drunk, rely ruling yet cause was he not on broad thereafter she so later object specifically fail to matter everything evening claimed that from the complained of. trial counsel is When every- before “was a blackоut” and that to request of an issue and fails aware thing fuzzy. was Near end of basis, timely appropriate relief interview, Appellant repeated his assertion plain matter not be considered error will by made stat- before interview started appeal.3 for reversal on thought he wife “frozen to had interview, 103(d), death.” And at the end of the fact that KRE which Despite the “I Appellant simply really stated: can’t at the time Tucker was ren- was effect dered, re- “motion limine remember.” states 28,] wealth, [August (Ky. S.W.2d (Ky.1996). 2. 181 833 813 916 S.W.2d 1992)). Commonwealth, (citing 3. Id. v. at 183 West (Ky.1989); 600 S.W.2d Crane v. Common- by solved order of reveals, record is sufficient the rule Tucker progeny and its preserve review,” appellate error for our have express language exceeded the 103(d). Tucker, such, decisions have increasingly read KRE As there is a clear which did not cite the conflict recently enacted between some of our decisions and 103(d), KRE in an expansive express language manner.4 of the rule and among our own cases since the introduc- expansive This reading of Tucker has has, tion of the rule. This conflict no come under increasing criticism.5 Such doubt, confused the bar and merits our criticism is not a sufficient reason for us to remedy reconsideration to the inconsisten- nearly overrule a decade old case. Howev- cy in our law. er, Tucker also conflicts with some of our other cases that have held that a motion in Though Tucker is correct that we limine overruled an order of record repealed is have not contemporaneous 103(d) sufficient rule, under KRE preserve objection it language is clear from the 103(d) an error.6 has, These cases effect, have been ren- of KRE that the rule dered since Also, the enactment of the rules of been modified. as observed in The evidence, upon unlike the cases Study which Kentucky Committee Notes to the Also, Tucker Evidence, is based. as Tucker’s critics Rules also known as the Com- out, pointed 103(d) have quick perusal and as a mentary, KRE “eliminates [the] Commonwealth, 4. See Garland v. contemporaneous 127 S.W.3d objection errors unless a (Ky.2003) (holding that Tucker re- made when the evidence is offered at trial? 404(b) quires that interpretation introduction of evi- The second would seem to be objected prior 103(d); dence that was plainly to trial but at odds with K.R.E. the first by contemporaneous objection could pretrial objections "be would demand more of error”); palpable reviewed objections Thomas v. than is demanded of trial. Inc., Hosp., Greenview 127 S.W.3d Kentucky Drafters of the Rules of Evidence (Ky.App.2004) (holding objectionable sought that an to make it clear that motions in limine questioning preserved ap- line of preserve appellate errors for review. pellate though review objective was raised a mo- Whether or not has been limine). tion in may depend upon achieved well what court meant when it said 'we have not re- " pealed contemporaneous objection the Garland, rule.' (Keller, 5. See 127 S.W.3d at 549-52 (footnotes omitted)). L, Stumbo, dissenting, joined by Cooper & JJ.); LAWSON, ROBERT G. THE KEN- Commonwealth, 709, TUCKY EVIDENCE LAW HANDBOOK 6. Davis v. 147 S.W.3d 110[6], (4th ed.2004) § (noting at 48-49 (Ky.2004); 722-23 Prater v. Cabinet Hu for Resources, 954, "interpretation provision Tucker’s (Ky. of the ... man 954 S.W.2d 1997); clearly plain language” O’Bryan contradicts its and Hedgespeth, v. 892 S.W.2d 571, urging practitioners (Ky.1995) caution on (emphasizing part until Court 574-75 the rule); clarifies the RICHARD H. UNDER- of the rule that a motion in limine is sufficient WEISSENBERGER, WOOD & preserve appellate GLENN KEN- the error for review and ruling proceeding TUCKY EVIDENCE 2004 COURTROOM after the motion is (2003) (noting MANUAL 11 alsо that Tucker overruled in a manner inconsistent with the language position "is in direct conflict with the preserves of taken in the motion still the 103(d)”); Lawson, Evidence, KRE Robert G. error for review because o construe a "[t] (1998) (Kentucky present KY. L.J. 787-88 motion in limine as waived in circum ("There Survey) ways Law purpose are two to inter- stances would defeat the of KRE 103(d) pret easy destroy having this statement Tucker and no [in ] the value of such a rule”); LAWSON, way to choose between the two. Does the see also ROBERT G. THE court mean that motions in limine will not EVIDENCE LAW KENTUCKY HANDBOOK 110[6], (4th ed.2004) preserve 'gener- § errors review for if based on 49 n. 115 'specific' objections? (recognizing split holding al' rather than Or does the in this Court’s 103(d)). preserve it mean that such motions will not as to the effect of KRE the supporting Common- any an has been evidence to whether error [as doubt theory specify- by pro- in of the case without by a motion wealth’s preserved limine] fact why particular in a viding any limine resolved other reason ing motions was insufficient preserve suppressed”12 order of record are sufficient to should be the of appellate objection errors for review.”7 While to the introduction preserve Court, Commentary binding they not on this is evidence because specific items of in rules.8 interpreting objection is useful the by the broad were not addressed however, ig- importantly, More we cannot in We motion limine. embodied rule.9 plain language of the nore noted, in to an extension what amounts Thus, in our case Tucker, we resolve the conflict rule that: clarification of the and to plain language, law favor of the an requests in limine Usually, a motion progeny extent that Tucker and its evidentiary specific a ruling advance may plain language of contradict fact, requiring a theory not of case rule, they are overruled. by multiple party facts. Where proof sup- be specifies what evidence should however, say,

This is not to why, question has been pressed in limine sufficient a blanket motion is “fairly brought to the attention of an As preserve appellate error for review. ruling trial trial court” and the court’s correctly Tucker observed: In that appeal. preserves the issue objection An prior made to trial will scenario, opponent the evidence as rais- appellate be treated in the court object evidence need not when same is not question review which However, same offered at trial. strictly objection scope within the broad, apply gener- does not principle made, objected as as to the matter both objections.13 ic objec- grounds to and to the appear tion. It question must that the v. recently, More Commonw Metcalf to the fairly brought attention specific motion we held that ealth,14 may claiming trial court.... One error ap properly issue for preserves limine rely ruling on a broad and thereafter and we the intersection peal explained fail to matter object specifically to the and Tucker: Davis complained of.10 v. in Davis Common- explained As wealth, (Ky. 722-23 similarly Our cases have limited S.W.Bd other 103(d). 2004), when motion example, applies KRE v. Tucker For Davis Commonwealth,11 general area of motion in limine is directed at we noted that a as a referred to challenging inquiry, in limine “the sometimes presentation (1992). "ig (d) part Opinion in because it 7. KRE Ethics 103 cmt. Subdivision cial rule”). plain language the the of nores 1104; v. Maric 8. KRE see also Commonwealth 117, le, (recogniz (Ky.1999) 10 120 S.W.3d Commonwealth, v. 916 S.W.2d 10. Tucker сommentary, having not that rules while (Ky.1996). 183 law, guide "provide a the force of ... forth”). interpretation the rules as of set (Ky.2004). 11. 147 S.W.3d 709 Inc., Shoney’s, 83 S.W.3d 9. LaFleur v. Cf. at 723. 12. Id. (Ky.2002) (discounting appellant's ar 478 the ignores gument rule "it about a civil because omitted). (footnote at 722 13. Id. rule”); plain v. language McDonald Judiciary, Kentucky Ethics Committee of (Ky.2005). (overruling (Ky.1999) a Judi 14. 158 S.W.3d 740 S.W.3d evidence,” Lawson, “class of Robert G. function in they this manner because are Kentucky Handbook, Evidence Law not contemporaneous with the introduction (4th 1.10[3][f], § at 36 ed. they LexisNexis evidence that are aimed at. If 2003), particular not a evidentiary fact. motions in required limine are not to be 103(d) Appellant’s motion in specific, limine and tri- KRE then could be turned al rulings catch-all, court’s thereon covered testi- into a allowing preservation mony regarding particular of all evidentiary manner of errors through the artful facts and properly preserved thus all use of vague, broad motions in limine. three of these appellate clearly issues for This is re- not what was intended Thus, view.15 portion rule. we reaffirm the Tucker, as extended Metcalf, Davis and Some commentators have noted requires a motion in specify limine to 103(d) that such reading a limited of KRE objected the evidence pre- order to 103(a)(l)’s contradicts KRE allowance of appeal. serve an error for general objections preserve as sufficient to rule, an error for appeal.16 Under this reading, Ap Such we hold that however, pellant’s supported by lawyer’s is motion in Commentary: oral limine was sufficiently preserve detailed to the issue

It should be noted a motion in limine appeal. Appellant’s lawyer specifically would not be sufficient to preserve er said: rors for appellate review unless it pro [Ojn

vided the trial court with the type taped defendant’s statement information which required gave would be that he Stephens to Detective at (i.e., preserve errors trial information the time of the death. There [are] satisfy sufficient to requirements couple of areas that I think should be (a) specific subdivision ground kept out. is that Stephens saying One is —the objection being jury made and the sub to him that going buy ain’t offered).17 stance of being evidence that. Another time he refers to a is going to believe that. I think those This is because of the nature of a motion in parts should be omitted because here limine: is primarily pretrial tool you have a telling detective kind of aimed, essence, at “heading off at the jurors you shouldn’t believing be pass” the introduction of KRE evidence. crap. 103(a)(1) general allows a contemporane objection during ous trial preserve an Though actually the detective made more error for review because it usually just clear than a few references to whether the from the context grounds and, what the for the jury would Appellant among believe (and objection not, they are if are the rule things, actually other accused provides truth, judge the trial can ask for telling lawyer’s request grounds). But motions in limine clearly conveyed sought cannot what evidence she (1998) 15. Id. at 743. (Kentucky Survey) (noting Law 103(d) reading that a of KRE to mean that 16. RICHARD H. UNDERWOOD & GLENN preserve "motions in limine will not errors ‍​​‌​​​‌​‌​‌​​​​‌‌‌​‌‌‌‌‌‌‌‌​​​‌​​‌​​​​​​​‌​​​‌​​‍WEISSENBERGER, KENTUCKY EVI- 'general' for review if based on rather than DENCE 2004 COURTROOM MANUAL 11 'specific' objections... would demand more (2003) (noting that Tucker’s insistence that pretrial objections of is demanded of than specific the motion in limine must contain the trial”). objections at "odd, objection general objection is since a is 103(a)(1)”); sufficient at under trial KRE (d) (1992). 17.KRE 103 cmt. Subdivision Evidence, Lawson, 775, Ky. Robert G. 86 L.J.

23 one at least Furthermore, several states and trial court courts of the to exclude. opportunity have had the federal court This motion the record. denied the of issue or at least variant 108(d)— address this KRE requirements the of meets it. order of by in limine motion resolved “[a] case of our requirements

record”—and O’Brien,20 Supreme Court v. In State ap- preserve alleged error law testimony by was faced with of Missouri peal. his of the interrogation about an officer that dur- The testified officer defendant. Appellant’s Merits of Claim 2. interrogation, interrupted he ing the that Detective Appellant claims lying. and told him that was defendant im to an Stephens’s comments amount issues were noted that The court testimony of characterization of the proper im- testimony “constitute[d] whether gen that it is agree another witness. We as to the ‘opinion evidence’ permissible character erally improper a witness to jury and before the question ultimate as testimony of witness ize the another right its admission violated [whether] “ ‘A held: “lying” or otherwise. haveWe that the trial.”21 The court held to a fair opinion about the truth witness’s not the offi- testimony was error because testimony permit another of witness is that, in his telling cer “was ... That determination is within ted. Rather, is a liar. opinion, the defendant ”18 of This is province jury.’ exclusive give-and- describing was the witness 608(a), by lim supported KRE which also defen- interrogation of [the take of his 22 attacks on the credibil its character-based The court also noted that dant].” in the form of ity of a witness “evidence for or comments the “reason officer’s only to opinion reputation” that refers additional statements the cause” or the witness’s “character for truthfulness why thus as to giving “color the defendant ap rule untruthfulness.”19 Whether or remarks these additional statements made plies to non-testimonial statements made.”23 [were] interrogation officer police during Kitchen,24Pennsyl In v. Commonwealth suspect a criminal of the overall part court ad appellate intermediate vania’s however, dif interrogation technique, is a by po certain comments dressed whether complex question. and far more ferent videotape of an contained in a lice officers impres- is an court Because this issue of first must be interrogation redacted. recourse, catego Kentucky, our aside into two sion the comments delineated ether, (1) ac declaiming a those which the officers from rule out ries: by saying, for lying to the states for the defendant of to look decisions of other cused know that “you’re lying” or “we Fortunately, appellate example, guidance. Commonwealth, taking witness the stand prohibited a from 18. Moss v. 949 S.W.2d James, lying. accusing simply witness of another (Ky.1997) (quoting v. 557 583 State (R.I.1989)); Stringer v. A.2d cf. (Mo.1993). 20. 857 S.W.2d Commonwealth, (Ky. S.W.2d 1997) ("Generally, may not vouch witness at 221. 21. Id. witness.”). for the truthfulness of another 22. Id. effect at the 19. The version KRE 608 in significantly dif- time trial 23. Id. than the one effect now. Nonethe- ferent less, (Pa.Super.1999). have 24. 730 A.2d 513 that version of rule also would (2) you’re lying”; reverse, those in which opinion claiming no officers asked defendant whether she error plurality opinion became the facts, had lied certain eliciting about thus a court. response from the defendant. The court plurality opinion The noted the officers’ held that category the first of statements comments on tape “were not offered were they inadmissible because were “akin during testimony live at the trial”29 and to a prosecutor offering his or opinion her “part were of a in- commonly police used of the truth or falsity of the evidence technique, designed terview to see whether presented by a criminal ... defendant [or] a change story defendant during will her prosecutor’s a personal opinion, either in interrogation.”30 course of an As argument stand, or witnesses from the via such, plurality held that the officers’ as to the or guilt innocence of a criminal statements were not prohibited opinion ”-25 defendant .... The court allowed the testimony.31 plurality also noted category introduction of the second of the purpose introducing of the state- “they comments in question because were i.e., to show the context of the ments — form, opinion did not involve an as to the responses, impeach defendant’s not to truth or falsity of [the defendant’s] state credibility an important consider- —was opinion ments or an as to guilt of [the police showing ation and that statements defendant], and [the offered re defendant] the context of a defendant’s responses sponses inquiries.”26 to the provide were admissible to context.32 Ulti- State v. In Demery,27 Supreme mately, imposed the court requirement of Washington Court also addressed the that the introduction of such evidence be admissibility portions videotaped accompanied by instruction “ex- interrogation suggested where the officers plaining respons- the defendant’s lying. the defendant was For exam- es, statements, party’s not the third ple, one of the officers that case told the evidence,”33 should be considered as “[R]ight nobody’s gonna defendant: now then noted that limiting such a instruction your story. believe you Now need to start unnecessary particular case tellin’ the truth.” Whеn the defendant jury clearly “because the understood from said the officer was “talkin’ to like I’m me testimony the officer’s that the statements

lying,” the replied, officer “Cause solely provide were offered context are.”28 The defendant claimed that when responses.”34 the defendant’s relevant trial, played they these statements were at improper amounted to The dissent claimed that opinion evidence. officers’ fractured, statements impermissible opinion The court’s vote was with four evi- error, claiming no claiming Washing- one dence introduced violation of harmless error, 608(a), claiming and four error. ton’s which reversible Rule Evidence bars majority justices Because a voted opinion impeach use evidence 25. Id. at 521. 31. Id.

26. Id. at 522. 32. Id. at 1283. (2001).

27. 144 Wash.2d 30 P.3d 1278 33. Id. 28. Id. 1280 n. 1. 34. Id.

29. Id. at 1282.

30.Id.

25 contained, among (as the officer questions the Federal opposed to another witness of disbelief rule, things, “statements other current version of Rule and our opinions con story], [and] defendant’s [the opinion reputation allow both which ....”40 guilt cerning defendant’s] [the evidence). noted that The dissent also the California findings of Drawing on the 608(a) “evidence,” not referred to Rule Court, the in noted that which Supreme con- Ultimately, the dissent testimony. unremarkable” “generally was terview admis- problem was that cluded that the the offi no doubt that is though “[t]here jury to evidence allowed the sion of the in a suggested accusatory and cers were concerning opinions the officers’ “hear[] not believe they did ways that variety of evi- veracity of a witness.”35 Such ruled defendant],”41 Ninth Circuit [the reasoned, dence, no differ- was the dissent properly de “quite was that the interview in had testified than if the officers ent ”42 interview’ an ‘unremarkable scribed as lying. court that the defendant was сomments questions and and that “[t]he justice deciding vote an defendant’s] placed officer] [the [the introduction the “dissent” that agreed with context, prosecutor’s much like a in swers error, but he of such statements was also noted trial.”43 The court questions at prejudicial that the error not claimed arose the comments that because was harmless.36 He noted therefore interview, “[t]hey pre-trial context of a appear did “not the officers’ statements carry type of statements were not part [prosecution’s] significant be a reliability [with aura of any special concluded: “[W]hen case.”37 He also Finally, the court noted jury].”44 fight statement is considered tapes to admit the if it was error even trial, apparent testimony officer’s at statements, trial court’s the officers’ judg- expressing that the officer was instructions, in which cautionary two veracity. ment about the defendant’s questions jury that the officers’ formed the Rather, making he he concedes that to be considered and statements were merely in an effort to trick the accusation truth, were and not for their questions story.”38 changing into the defendant such, As error.45 sufficient to alleviate due that the defendant’s the court ruled Smith,39 In v. the Ninth Circuit Dubria violated rights had not been process Appeals addressed this issue Court taped state of the officers’ introduction of a reviewing the context of a denial ments. petition corpus, specifically for habeas Cordova,46 evidence v. recently, the admission of such More State whether ad- appellate court intermediate process. violates due The defendant Idaho’s an added the same issue with and dressed claimed that the comments that case n. 2. 41. Id. at 1001 35. Id. at 1288.

36. Id. at 1286. 42. Id. 1001.

37. Id. 43. Id. 38. Id. 1002. 44. Id. at deniеd, (9th Cir.2000), cert. 224 F.3d 995

39. L.Ed.2d S.Ct. 531 U.S. 45. Id. (2001). (Ct.App.2002). 51 P.3d 449 46. 137 Idaho Id. at 1001. 40. cases, the in twist. Like other the officers The court concluded that the comments the violated Kansas’s “well-known rule that a Cordova told defendant that he was may express opinion witness not on the lying, of but one the officers also told the credibility of another witness.”50 The expert decep- defendant “that he was an in distinguish court refused to between state- tion detection and that he knew the victim ments made on the witness stand and truth.” telling the The court ruled presented videotape. those The court “expert” “ap- that the officer’s comments noted that for also context the defendant’s peared to be the comments of an ex- “simply answers could provided have been pert,”48 and because the comments were by having testify point [the out officer] necessary give not context to the defen- progression the vari- [the defendant’s] answers, they improperly dant’s ad- tape played ous [the stories as mitted. —minus proper- The other comments were negative officer’s] numerous comments ly they provided admitted because context credibility,”51 and that [the defendant’s] for the defendant’s answers. The court limiting the lack of a instruction “com- also noted the admissible comments pounded already problem.”52 serious could be admitted for the truth of the Nonetheless, because of various other er- asserted, matter thus the trial court had case, including com- rors extensive giving erred in not a limiting instruction. mentary on the defendant’s truthfulness however, Ultimately, the court ruled that prosecutor, the court ruled that it comments, the admission of the officers’ improper “need determine whether the erroneous, though light was harmless allowance of statements it- [the officer’s] amount large of evidence of the defen- self or simply constitutes reversible error guilt. dant’s harmless error”53 and chose instead to recently The issue was addressed most reverse because of “cumulative trial errors Supreme Court of Kansas State receiving him a fair prevented [that] from v. Elnick.49 The officer in that case made trial ....”54 repeated comment to the defendant while Though the coun- various courts across him, questioning including: issue, try quite have it is addressed this just rule, told me a flat-out lie.” synthesize majority “[Y]ou difficult to es- pecially given evidentiary rules in lies, shift, somebody eyes their “When significantly.55 these various states differ did realize that?” first note that even the courts that We sitting bullshitting “You’re here me.” recognized type have introduction of this lies, ‘You’re weaving fucking web of evidence as error have been hesitant to man.” consider such introduction alone to be re- 47. Id. at 453. 54. id.

48. Id. at 455. example, For Kansas’s Rules of Evidence 55. consist of a series of statutes first enacted in (2005). 49. 279 Kan. 105 P.3d 1222 - 1960s, §§ Kan. 60^401 to see Stat. Ann. at 50. Id. 1227. 472, and which are not modeled after the Evidence, whereas Ken- Federal Rules of 51. Id. 1229. Idaho, tucky, Washington adopted have Rules, of the Federal albeit with versions 52. Id. changes. some 53. Id. at 1236. version Even have such comments retaining versible error. the courts that presented reversed when this issue interrogation recording played because multi- have done so the error was necessary a context provide plied by errors. other given by suspect. answers note that are We also such statements however, that agree, also such We impeachment the sort of character con- for the truth comments are admissible (both by KRE 608 old and templated the assert, they appear matter that to of the vеrsions). new “The ‘character’” word i.e., lying. recog that the defendant is We narrowly accurately, used most de- that the of such com nize introduction personal disposition person- scribes the or doubt, ments, possibility no the that entails an individual.”56 ality of Such comments jury the will misunderstand accord to jury are to attempt not an to the describe impermissible weight those comments an personality; they the are defendant’s nor witness, during The solution to this deliberation. impeaching statements aimed at a suggested problem by the Kansas Su especially it is a when unknown whether Court, i.e., By preme to redact the comments criminal defendant will take the stand. comments, making recording such officer is not from the and have the officer the anyone trying testimony suspect’s to convince the defen- the give live as to how —not (who is dant knows whether he or she in story response questioning, shifted truth), officers, telling prosecu- the other a however, Requiring is unworkable. tor, jury or the the defendant interrogating intersperse the officer the —that Rather, such lying. part comments are of recording explanation with his or her of an interrogation aimed at show- technique of progression the defendant’s various recog- defendant the officer dilute of stories could the effectiveness nizes the holes contradictions recording of the because would playing story, urging defendant’s thus him or her require stop-and-go approach, a thus truth. tell the prac a breaking up recording. Such preju run risk of tice could also the same is point perhaps impor- This last most to the in some cases. For dice defendant tant, at least for the purpose developing of point progression “to the officer out a that will address rule future instanсes as defendant’s] various stories [the similar evidence. the courts Almost Supreme Kansas tape played,” considered recognize that have the issue approach, Court described its re legiti- this form of questioning is example, officer to quire say, “Here mate, interrogation effective tool. And be- story.” changed the defendant integral cause such comments such an are implication clear of such statement is part interrogation, courts several regard lying that the defendant is they necessary provide have noted that story, one his or her at least version of responses. context for defendant’s We thus a statement is an indirect com agree by such that such recorded statements is telling ment on whether the defendant police diming interrogation are a This legitimate, the truth. has the same effect of ordinary, interrogation even (and technique, especially leaving sto- the officer’s statements suspect’s when a ry necessary such changes. agree shifts and also further shows how com- We LAWSON, (4th ed.2004). 56. ROBERT G. THE KENTUCKY 215[2], § EVIDENCE LAW HANDBOOK mentary give an admonition when give is context to the defen- failure to such error, response). dant’s statement requested by though a defendant subject such an error is still to harmless remedy think We the better analysis. error any possible adverse inference such, As the comments limiting given by is a admonition the court case, holding, admissible under our while playing recording. before the Our require would have been sufficient to specifically provide Rules Evidence giving limiting of a instruction or admoni- such an admonition.57 Most of the other jury. tion to the need not address We courts that have addressed this issue have whether the lack of such an instruction limiting endorsed admonitions58 either error, however, this case wаs harmless approving the trial court’s use of such an for an Appellant because failed to ask such by proposing admonition59 or the use of previously admonition. have held that We such an admonition.60 The admonition an admonishment is sufficient to where phrased should be so as to inform the and defendant fails to cure error the that the officer’s comments or statements admonishment, we will not ask for the solely provide to context to are “offered may appear review the error.62 This responses.”61 the defendant’s relevant means, however, of KRE interpretation This that a trial court’s contradict our ("When 105(a) anything that 57. See KRE evidence which is You are not to assume as true one(l) (1) party says questions. admissible as to one or for in his [the officer] purpose par- only they give questions pertinent but not admissible as to another as are admitted, ty purpose meaning or for another the to the answers. court, Later, upon request, evi- judge repeated jury: shall restrict the too, proper scope dence to its and admonish the Again you, you I want to caution are jury accordingly. In the absence of such that not to consider of the statements request, by the admission of the evidence makes for the truth of the mat- [the officer] judge shall be a trial without limitation asserted in those statements. Those ters appeal, except ground complaint on under for just questions or statements in the are rule.”). palpable error questions form of statements. in the forms— truth, They are not to be considered for 58. These courts tend to use the word "in- they they only are to be considered as how struction,” referring even when to an oral meaning may give to the answers. jury by judge. Generally, comment tо the Any impression jury may that the have Kentucky, given orally in an admonition is officer’s] had that it could consider [the trial, during an instruction is in whereas specifically be true was and statements to writing given at the and conclusion timely judge. corrected the trial prefer trial. We an admonition in this case. (first original). Id. alteration in Smith, 995, (9th 59. Dubria v. 224 F.3d Demery, 30 P.3d v. 144 Wash.2d State 60. Cir.2000) (approving note, however, the trial court’s use of a ("We (2001) instruction). limiting The Ninth Circuit re- party trial admits third state- when the court follows. counted the instructions as provide context to a defendant’s ments give a responses, court should limit- the trial Any judge’s two error was cured jury, explaining that to the instruction response cautionary to an instructions. In responses, not the the defendant’s and counsel, judge objection by told defense statements, party’s be considered third should jury: evidence.”). as gentlemen, you view Ladies and should way questions answers in the same Id. 61. questionfs] view the and answers words, the courtroom. In other Commonwealth, 17 S.W.3d only pertinent they may 62. Graves v. questions are (Ky.2000). explain what the answers -themselves are. 103(d) above, i.e., get drugs in limine is had drug that a motion abuser who (2) preserve appel- him, Appellant’s sufficient an error that the vic- desire review, (3) limita- late conforms to the to the granddaughters, tim not see her expressed. rule (4) tions on the that we have Appellant, to the hatred of victim’s admonition, even By failing to ask for an be Appellant victim’s wish ruling the trial court after returned a imprisoned unspeci- caught and for some error, thought Appel- Appellant was activity. also claims illegal Appellant fied “objection” lant’s As incomplete. was that this irrelevant generally evidence was such, strictly an admonition “not with- was prejudicial. scope objection in the аs made... fairly brought to the atten- [and not] 1. Preservation Basically, tion of the trial court....”63 again relies on The Commonwealth 103(d) our relaxed KRE reading even v. claims that Tucker Commonwealth and requires and Tucker that a defendant still preserve any failed to error for a remedy get has to ask order to regard this because there was no contem- remedy. objection evidence poraneous when the further note holding We that our law- was introduced trial. case, establishes, and the rule is that however, yer, pretrial made oral motion types limited to the in of comments this regarding in limine As we this evidence. i.e., case, by accusations officer that above, if such specific discussed a motion is defendant is not telling the truth. The trial enough judge and the rules on the rule does not of com- types address the record, an order then motion with on the ments that some of the other courts have alleged preserved appellate the error is for dealt with and in present were not this 103(d). KRE review under The mere fact example, case. For in this case the officer lawyer Appellant’s moved in limine to Appellant, told directly indirectly, never or entries, suppress diary some of the howev- that he was an expert lie detection. er, not alone does determine whether Such comments raise additional concerns sufficiently preserved. issue is that we have not opinion, addressed this to and we decline to cover fashion rule prosecutor The a notice re filed necessity such circumstances without the diary KRE garding pursuant to entries to do so. 404(c). trial pretrial The court held a January hearing 2003 to address Diary B. The Victim’s in the hear During evidence notice. Appellant also сourt claims that the trial lawyer ing, Appellant’s stated that she in allowing por- erred of the introduction diary wanted to introduce some of victim’s diary. Appellant tions ad- they theory supported entries because mits that he wanted to introduce some injuries victim’s that the were caused entries, diary specifically those related being from after staggering in withdrawal drug to the victim’s and her in- addiction taking court stopping valium. When the taking stop drugs. tent to He claims that Appellant’s lawyer if entire dia asked diary improper other entries KRE in, ry to come she stated: 404(b) Appellant specifically evidence. (1) Well, I just my part raises issue with related I want in. those entries to let portrayal Appellant letting to the victim’s as a know his don’t reason Commonwealth, (Ky.1996). 63. Tucker v. S.W.2d I just is some additional part getting other in. We are now over There motion, motion, guess day I that he would want. So to his is trial— my client was an abus- wanting to show drugs diary er of from the ... Constant- Well, I Judge: would rather not wait him, ly get drugs asked her If day you until the of trial. have some for, it. He they fight and that over is I think things asking that he is not in, I don’t know wanting put try to address those ad- we need purpose. may for what of the trial. You all be able vance If your that out on own. to work judge discussed some lawyers The can’t, then call me and we will set some- diary and the questionable entries thing up. possible justifications for admission of such judge entered a handwritten order that he judge evidence. The indicated the dia- hearing addressing the end of the they the victim’s state of thought went to ry portion other issues. The mind, and several and that some of the entries that the dealing diary reads of the order with prosecutor sought overlapped to introduce as follows: those that wanted to intro- Appellant’s judge duce. Thе then asked Diary Entries Admissibility III. lawyer compare proposed entries. tendered cer- The Commonwealth has minutes, lawyer After a few highlighted tain entries shown stated, “Well, Honor, just think this your hearing. admitted at the Those copy inflammatory,” and then she highly they are are admissible entries entry to an where the pointed specifically mind of the prove the state of offered Appellant was not worth the victim said many wants victim. The defendant also he price of a bullet and that she wished prove admitted to of the same entries stated, ‘Well, I judge then would die. The withdrawal the addiction and victim’s that,” and noted that am inclined to allow physical the conse- drugs from truth the statement was not offered for the to of the withdrawal. Counsel quences following ex- of the matter asserted. The about what will be admitted confer place: change then took objec- may renew agreement. Defense you Judge: going I am not to foreclose portions agreed. tions authority you .... If submitting some objection the Jan- at Appellant’s pretrial in anything else all want to submit to uary hearing was not sufficient case law on terms of a memo or some oral for review. The preserve this issue making. any offerings he is enough, specific motion was neither since Lauryer): So McCollough (Appellant’s diary en- generally to the it referred together we are on. So far a lot of these by an tries, sufficiently resolved nor itwas to allow point going at this the Court is lawyer’s com- Appellant’s order of record. all of it in. hearing and the ments at the end of Yes, part I to allow the Judge: going am Appellant’s law- judge’s order indicate high- has tendered and prosecutor] [the prosecutor in yer agreement was giving you opportuni- I am lighted. diary would bе admissi- as to what entries these, either ty respond any to to at the judge’s at trial. The comment ble individually. collectively or in the order that his notation hearing and en- diary other lawyers could address now it looks McCollough: Okay. Right objection show that further highlighted like are tries with the ones that are any objec- and that issue not resolved anyway. to use was the ones would want presented tions should be at a later to again ment and that lead was, effect, time. The motion deferred prejudice.” “real trial, in preserve which event it did not lawyer’s objection to these Appellant’s such, the claimed error.64 As the oral diary specific enough two entries was January hearing motion was fall of KRE interpretation within our preserve insufficient to ap- this issue for 103(d) above. also note that We pellate review. judge’s ruling allowing the admission Appellant’s lawyer followed the diary entries an “order of record.” was judge’s order and again by raised the issue record, however, The Appel- indicates that objecting to some of diary entries diary lant agreed as the other entries. judge’s day chambers on the of trial. such, As that only alleged we hold chambers, judge’s While the judge regarding diary error these two entries asked, you “And agreed put have preserved for our review. parts diary substantial anyway, right?” prosecutor replied, The “Right.” Appellant’s 2. Merits of Claim

Appellant’s lawyer object did not to this. later, however, A few minutes Appel- We now turn to the merits of stated, “Now, lawyer pretty we have much diary lant’s claim as to the two entries agree tried to suggested on the preserved for our review. diary only objection entries. The I have— pretty we are much in agreement of—one diary entry relating The to the just entries that he wants put grandchildren victim’s was admissible. It about [how] he doesn’t want tome see the act; appear does not to refer to an thus it girls anymore. much so I don’t know what purview does not fall within the of KRE the relevance of that is.” She was refer 404(b). But if even we were to read it as ring diary entry to a that reads: “March rule, falling agree under we with the 4,2001. He can’t girls seem to stand the judge trial that it is further evidence of the anymore. He wants cut back the x’s conflict growing between I see them .... I gotta [times] do some such, the victim. As it is evidence of a thing.” judge diary entry allowed the crime, for po motive the which makes it because, noted, he it illustrated an area of 404(b). tentially KRE In admissible under conflict Appellant between and the victim. determining whether to admit evi such Appellant’s lawyer then raised another dence, by the trial court is still bound diary entry by stating, “Another one is balancing diary KRE 403’s test. The en where she states he going is out in the car try only a portion related to of the overall now, hope gets and I caught gets he and Appellant cause of the conflict between twenty years.” entry The she refer- was victim, and the it repetitive but was not or to ring “May reads: 2001. I still wish cumulative it an aspect because related to that SOB would die. He’s out in the car of the conflict not covered the other hope gets caught jail now. I he put& Furthermore, diary entries. not was years. God knows how much I than prejudicial probative. more The trial HATE The judge HIM.” also allowed this entry, court noting diary that it was like other did not abuse its discretion admit entries that by agree- ting diary entry. were to be admitted this 103(d) ("A 64. KRE appellate (emphasis motion in limine resolved add- error for review.” ed)). preserve order record is sufficient to of Family entry a Members regarding

This leaves the C. Victim’s During by Appel crime Trial possible being committed the describing lant and how victim hated re- Finally, Appellant raises two issues and Appellant wished he would die. The actions of members of garding the several justify to intro attempts Commonwealth family during the victim’s trial. of this under the rule of entry duction completeness KRE 106. The rule of guilt the several During phase, however, completeness, does necessari cry family began of the victim’s members ly justify diary the introduction of ent crime ing photos detailing when the scene were diary ries.65 Several entries omitted injuries and introduced. the victim’s were by agreement parties, and there is attorney objected and noted diary chance rest of little that the the jury that several members of the had misleading presented impres have a crying family looked members. She at the this entry. sion absent stay judge family to allow to asked the the Furthermore, entry not appear the does courtroom, they the but asked be 404(b). KRE exceptions fall under the them, moved could not see so that entry Though vague, there is little judge Appellant but the declined do so. activity that it to criminal of doubt refers again in a motion a raised this issue by Appellant. sort committed some family new trial. The victim’s members entry Though as whole further illus- understandably upset by presen were trates the conflict between photos, tation of the crime scene victim, and could be thus considered recognized, family trial members judge motive, to his indirect evidence related fairly restrained under the “being activity does ap- criminal referenced such, crying As their circumstances.” 404(b) the KRE pear to fall under not the sort of emotional outburst entry, exceptions. introduction jury’s passions, and thus would inflame solitary vague reference to with its it did not rise to the level of error.66 however, activity, not appear criminal does that dur Appellant also claims prejudicial, especially have when been phase, several members light diary penalty of the other en-

considered large family wore buttons Appellant agreed to introduce victim’s tries victim with Appellant’s bearing photograph and that make reference grandchildren. Appellant also drug growing use conflict with two illicit one that such, photo Collins, argument” during closing the 933 S.W.2d Commonwealth 65. See Commonwealth v. 811, ("[W]e (Ky.1996) do not that the "appellant 814 feel had walked a 'demon- such as that diary invokes the in this matter the rule use of other refer- ic and trail and made satanic’ objective completeness. of that doc- religion,” there were that “he wished ences to prevent misleading impression trine 'is the smell graphic more evidence such as reproduction incomplete of a a result of ability [the to watch victim’s blood and the ” (citations or document.’ omit- statement husband,” and where wife] search for ted)). crying began and told prosecutor then "[t]he represented the Common- jury the he Commonwealth, v. Marlowe S.W.2d 66. Cf. crimes”). and the victims wealth 424, (Ky.1986) (recognizing as harm- 430-31 "many made the error the comments less COOPER, Dissenting fami- Justice. during was made trial to the victim’s buttons, ly wearing Appel- members’ these INTERROGATION I. AUDIOTAPED preserved lant now claims this issue was 7:00 on October approximately p.m. At for a new by raising the issue his motion II, 2001, evening day Appellant the of the A motion for pursuant trial to RCr 10.02. body found his wife’s dead claims to have trial, however, depends new on evidence residence, Appellant on the floor of their newly discovered after trial. That the vic- audiotaped tо an interview with consented family wearing dur- tim’s was such buttons Ken- Stephens Detective Robert of the penalty phase newly the was not dis- tucky Stephens played Police. the State evidence; family covered members jury for the audiotape interview presence were in the courtroom and in the during direct examination. The inter- his of Appellant attorney. and his We would The first twenty-four ‍​​‌​​​‌​‌​‌​​​​‌‌‌​‌‌‌‌‌‌‌‌​​​‌​​‌​​​​​​​‌​​​‌​​‍minutes. view lasted wearing add that if the of the buttons were thirty seconds consisted five minutes and to Appellant noticeable and his attor- version of Appellant telling Stephens his ney, we doubt it was noticeable viz: He awakened events, day’s jury. Regardless, if wearing of such floor; morning to find his wife dead on the erroneous, was buttons should have been placed up he her in the and cleaned bed brought trial so judge’s attention house; he saw was blood that he could have a chance address nose; he coming from his wife’s sustained contempora- issue. Because there was no slipped a cut on his head when he objection trial, neous error was and struck his head on the com- bathtub preserved our review.67 mode; cleaning up and after the house and bath, taking police report he called the remaining eigh- the death of his wife. The IV. CONCLUSION thirty teen minutes and seconds of the reasons, foregoing For the affirm we Stephens consisted of Detective interview Appellant’s convictions. actually hap- as to stating opinion his what killing pened, accusing Appellant of his it, lying telling Appel- about wife and GRAVES, JOHNSTONE, ROACH jury story. lant that no would believe his WINTERSHEIMER, JJ„ concur. During interrogation, Appellant never COOPER, J., by separate dissents changed story agreed or with Ste- LAMBERT, C.J., opinion in which phens’s repeated allegations that he had SCOTT, J., join. it. At lying killed his wife and was about buttons, Commonwealth, wearing spectators the identi- 67. Tamme v. 973 S.W.2d (Ky.1998) (noting preservation no of error ty person photograph, and shown in the allowing regarding buttons”); activities such as mem- jury even whether the noticed family of the victim’s to re-enter the bers (6th Sheffey, United States v. 57 F.3d 1419 having testimony when courtroom Cir.1995) (noting presence that while the contempo- replayed because "[t]here no driving of anti-drunk activists the courtroom objections raneous of these occur- wearing support cause buttons in of their Braxton, rences”); see also State v. 344 N.C. during where defendant is ac- a murder trial (1996) (noting 477 S.E.2d driving having while cused of killed victim while defendant moved for a mistrial based worrisome, was reversal under the influence presence wearing of audience members the defendant "did was not merited because buttons, victim there was insufficient reason bring to the district court’s attention his not "[tjhere to reverse because are no facts in objections”). current showing identity of record number 34 trial, Appellant objected playing determination is within the exclusive province jury. of the

tape redacting Stephens’s without accusa- lying jury tions that he and that no Commonwealth, was v. 579, Moss 949 S.W.2d James, would believe him. State v. (Ky.1997) 557 (quoting 583 (R.I.1989)). 471, proposition A.2d This 473 witness, may lay expert, or express No universally accepted.1 is If Detec- almost opinion falsity an as to truth or tive not an Stephens expressed could have testimony of witness. another ly- opinion under oath was A opinion witness’s about truth of have could not advised testimony of another witness is they from witness stand that should nor permitted. expert lay Neither wit- believe version may events, another testify certainly convey nesses witness then he could not by un- lying faking. way or a defendant or That that same information of an is Adams, 1236, (1988) (error express 271 662 to allow 1. See United States v. F.3d witness (10th Cir.2001); belief, statement, States opinion 1245 United v. Beas or that another wit 1518, (11th Cir.1996); ley, 72 F.3d 1528 Unit telling lying); is ness the truth or Common 126, (1st Shay, v. 131 ed States 57 F.3d Cir. Ianello, 197, wealth 401 Mass. 515 N.E.2d v. 1995) (expert's opinion that another witness 1181, Smith, (1987); People v. 158 1184-85 lying telling ordinarily or the truth is inad 156, 220, (1987); Mich.App. 405 N.W.2d 161 opinion scope missible because exceeds State, 761, (Mo. Beishir v. 522 S.W.2d 764-65 expert's knowledge merely informs the 1975) ("Assuming that such a indi statement particular jury that it should reach conclu opinion cates that Warren was not truthful an 440, sion); Leapley, Bachman v. 953 F.2d 441 even if Dr. it would not have been admissible Cir.1992); Benson, (8th v. United States 941 witness.”); appeared Guhleman had as 598, Cir.1991) (7th ("jury F.2d 604 does not Brodniak, 212, State 221 718 P.2d v. Mont. believe"), expert need an to tell it whom as 322, Jamerson, (1986); State v. 153 N.J. 329 Hall, by United States v. 93 F.3d modified 318, 1183, (1998); State v. 708 A.2d 1195 Cir.1996) 1337, (7th (evidence 1343-45 Kim, 614, 347, N.C. 350 S.E.2d 350-51 318 psychiatric persons disorder that causes 767, (1986); Willard, App.3d 144 State v. Ohio confessions); make false United States v. Rav 688, (2001) ("[T]he 761 693 effect of N.E.2d el, 721, (9th Cir.1991) (expert 930 F.2d 726 complain was to bolster the statement testimony inappropriate to bolster defendant’s suggesting social work ant's version credibility); Scop, v. United States 846 F.2d detectives, investigate cases ers and trained to 135, (2d Cir.1988); Lindsey, 142 State v. 149 abuse, testi believed the witness. No such 472, 73, (1986); Ariz. 720 75-76 Hink P.2d mony proper presented, nor be was would it State, 530, 906, 10 ston v. 340 Ark. S.W.3d opinion a witness to such render 1, (2000); Coffman, People 34 910 v. Cal.4th being as to whether a victim truthful 30, 710, (2004); Cal.Rptr.3d P.3d 17 96 93 Milbradt, abuse.”); v. claims of sexual State Koon, 410, (Colo.Ct. 412 People v. P.2d 713 620, 621, (1988); 305 756 P.2d 624 Or. Porter, 57, 241 App.1985); State v. Conn. 698 Davis, 77, v. 518 Pa. 541 Commonwealth 739, (1997) (excluding polygraph 769 A.2d 315, (1988); Corey, A .2d 317 State v. State, 202, evidence); Tingle v. 536 So.2d 841, (S.D.2001); 845 Heidel 624 N.W.2d Oliver, (Fla. 1988); v. 188 Ga. 204-05 State State, 668, (Tex. berg v. S.W.3d 676 36 47, 256, (1988); People App. 372 260 S.E.2d 2001); App.-Houston Dist.] Pritchett [14th Williams, 693, Ill.App.3d 332 266 Ill.Dec. v. Commonwealth, 182, 263 Va. S.E.2d v. 557 1238, 168, (2002); Shep 773 N.E.2d 1242-43 205, Romero, (2002); State v. 147 208 State, 242, (Ind.1989); 243 herd v. 538 N.E.2d 899, 264, (1988); Wis.2d 432 N.W.2d 904-05 91, (Iowa Myers, v. 382 N.W.2d 95 State 740, State, 866 P.2d 751 MсCone v. Jackson, 463, 1986); v. 239 Kan. 721 State ("[Wjitness (Wyo.1993) credibility ex 'is the 232, (1986), abrogated on other P.2d jury'; province and neither ex Rome, clusive grounds recognized State v. 47, 515, pert lay permitted to (2000); witnesses should be nor 5 P.3d State v. Kan. telling Foret, (La.1993); testify witness is or is not that another 1127-29 628 So.2d truth.”). State, v. 312 Md. A.2d Bohnert

35 (9th Smith, 224 F.3d 995 Cir. hearsay statement. I would also Dubria v. sworn note, although preserved 2000), majority opinion the issue is not upon which review, permit that it was error to relies, re primarily was federal habeas jury Stephens express opinion to hear in which of a state court conviction view killing his Appellant guilty that was of does not lie corpus habeas relief “[f]ederal Commonwealth, Stringer wife. v. 956 law,” (quot id. at 1001 for errors of state (“[Jjurors 883, (Ky.1997) do S.W.2d 889-90 McGuire, 62, 67, v. 502 U.S. ing Estelle an not need assistance the form of ex (1991)), 475, 480, 116 L.Ed.2d 385 112 S.Ct. pert’s opinion guilty that the defendant is magni are constitutional they unless of of guilty.”). sample or not For a cases Thus, Id. the Ninth Circuit Court tude. holding permit that it is reversible error to of the un- Appeals reviewed the admission express opinion officer to an that police tape only for a violation redacted guilty, v. the defendant see State Stead i.e., Clause, its ad Due Process whether man, 297, 919, Kan. P.2d 924 253 855 fatally proceed “so infected the mission (1993); Wheeler, 78, v. State 416 So.2d 81 fundamentally un ings as to render them (La.1982); Hogetvedt, State v. 623 N.W.2d (quoting fair.” Id. Jammal v. Van de 909, (Minn.Ct.App.2001); Boyde 915-16 v. Cir.1991)). (9th 918, 919 Kamp, 926 F.2d (Tex.Crim. State, 588, 513 S.W.2d 589-90 substantially higher That is a standard Barr, App.1974); Wash.App. State v. that to direct apply review than which we (2004) (trial 373, 518, 98 P.3d 523-24 court preserved evidentiary of properly review [Washington’s committed “manifest error” majority con Finally, opinion errors. equivalent palpable by permitting error] and accu opinions cludes that the officer’s police opinion officer to render that defen necessary place Appellant’s sations were guilty). dant was following in “context.” As the answers Yet, majority proper holds it was transcript eighteen of the final minutes Stephens play jury audiotape for the shows, thirty audiotape and seconds of the interrogation Appellant of his in which portion interrogation that consisted Stephens repeatedly opined entirely Stephens of Detective ha almost guilty, was that Appellant lying, and ranguing Appellant opinions with his jury that no agree would believe him. I Appellant’s accusations and denials of the Supreme with the Court of Kansas that same. answers were almost permitting jury audiotape to hear the “no,” or always simple “yes” or “uh-huh” is no than permitting different the witness thus, “uh-uh;” meaningful or there were no opinions to render the same inadmissible place answers to “context.” Elnicki, from the witness stand. State v. Q: you I’m Phillip, going to tell some- 47, (2005). 1222, 279 Kan. 105 P.3d old thing. you Have ever heard an Kitchen, See also Commonwealth v. you will set statement truth (Pa.Super.Ct.1999); A.2d 521-22 State telling You better start the truth Jones, v. 117 Wash.App. 68 P.3d free? (2003) (“We you’re big trouble. I know because meaningful find no differ you’ve up. been beat can tell that allowing testify ence an officer between your body. Don’t look at by looking directly that he does not believe the defen you’re surprised. I know that me like allowing testify dant and the officer yesterday police we had officers here during questioning he told the defendant your you let them talk to that he him. In either wouldn’t did believe case, fighting you said police learns the officer’s wife. You was credibility.”). anybody if came in opinion something about the defendant’s about you you have or wer- something. fighting. telling a shoot-out Are me I drunk Nobody fighting? to talk. en’t and wanted understand you that all drunk yesterday, were that A. No. you yesterday, all were it fighting and Q. at, your Phillip? Where’s shoes got out of Tell me hand. the truth. They’re A. inside. (interrupted). A. No them, Q. they got I you blood on bet Q. I washing know in the there’s blood them, probably. go proba- If I find I’m you’ve up. machine where cleaned bly on them. going to find blood There’s blood the towels the wash- Phillip, you’re big in a world of trouble. ing machine. seen You We’ve those. A. (Unintelligible). go

tried to clean You’re up. going to Q. only way out is to tell the truth. The way you your- start helping better — A. I am. you that can only person help self. I’m to you. going you to listen Q. not. You’re not. You you’re No give you better me a statement that want me to believe but stuff makes sense. That makes no sense. you ain’t truth. The truth is that you got fight, know that all a that she A. I can’t (interrupted). you, say couple I’d she a put smacks Q. going prison long You’re to for a may put you. marks on She have even you if helping yourself. time don’t start your at that mark on head. And Now, you if last fighting night time, point you yourself and defended other, pushed you you hit each I she you you to hit her. And hit her had got fight. understand that. You all in a place. I know little too hard. what took day. drinking got You’d been all You do, tell you wanting And too. You’re fight. into a She ain’t been dead that me afraid to. you’re long. you And all had been fighting, No, A. sir. you? hadn’t Q. Yes, are. You as well you might A. No. buddy. big trou- talking, start You’re Oh, now, Q. Phillip, give come on don’t only way you’re going get ble and the fighting. me that. all had been You out is the truth. The truth will to tell why you That’s had to clean the house help you; you. hurt lies it won’t These up, you everything knocked because had showing you. mil hurt When start too you around. And hit her little all the house—there’s blood over you hard and her. that’s killed And All house. everywhere blood It exactly happened. what’s don’t take machine, doors, washing in the over the no no brain scientist. I ain’t brain man. in the bedroom. just poor I’m old man that can look she a cou- A. That’s because fell down around and see the facts of life. And ple times. you help yourself, Phillip, unless want to long you’re going go Q. down road a I’m sure she did. you

time. Now tell me better the truth. rags A. used Then she different I’m I can telling you wipe A. remember her face.

(interrupted). Q. think on. You better Come that, A buddy. than Q. something better telling nothing. You ain’t me You buy going that. You’re gonna it. You re- ain’t every remember bit can long for a time unless penitentiary all were drunk and member that just fighting, you killed her. Is you talking. start You better tell the weren’t you put me to it in? truth. how want am, A. I I can best remember. A. No.

Q. nothing, You can’t remember can Q. easy It’s for me. take a state- We’ll you? you fighting. ment that weren’t A. Not much. drinking (interrupted). I A. was Q. Why? Q. you fighting? Yes or no? Were A. I asleep. A. No. Oh, Q. you’d been drunk. You weren’t Q. you fighting. Then weren’t You asleep. asleep you You weren’t when just all. hit her for no reason at her, you? you asleep hit Were A. No. you hit

when her? Q. fighting you. She wasn’t You A. No. her, just you’re murdered is that what her, Q. you hit You were awake when telling me? flow’d she die? been She’s you? weren’t Somebody murdered. her to beat A. She fell asleep (interrupted). So, her, hit evidently, you death. didn’t Q. Okay, come on. I don’t want to you, she didn’t hit hit did she? Did she hear lies. I want to hear truth. I’m you? Yes or no? If lies, gonna hear we just stop can talk- A. No. ing. you help yourself Do want to or do her, Q. you just So beat the out of fire you go want to to penitentiary forev- you? just didn’t You killed her. Is er? Somebody it her. how is? killed A. I want to help myself. got you, You’ve the blood all over all Q your Then this is time. I can either house, your your in ma- washing over help you, or I can you. hurt Not me. you you chine. Do want me to take You, yourself. You can help yourself or you washing and let see the machine? you yourself. can hurt up you. That’s to you go Do to in there? want Shut If you truth, want to tell you’ll me the you door. I can tell what’s the wash- help yourself. you If don’t want to tell full of blood. You machine —towels truth, you go prison then can you put had to them there. You said mean, I you’ll gone forever. be for a you you’d cleaned beat up. So knew time, long buddy. big Murder’s a crime Evidently, you her. she didn’t beat be- county. in this I you you. cause told me she didn’t hit you’re it I (interrupted). sorry A. I didn’t know about and under- got you stand that. You drunk and beat Q. You kill didn’t mean to her? your to death. wife A. I kill didn’t her. No, A. sir. Yes, Q. you speak did. The facts Q. you Sure did. She didn’t beat her- her,

themselves. You didn’t mean to kill put self to death. Who her the bed? I’m got fighting. sure of that. You all you up You did beat her truth, you get Is that did after —after you’d beat her to death. fighting? up way. A. I and she was that woke

A. No. Q. anymore. Q. You don’t talk beat to death. And want You done her just you you you You want me to write it knew she was dead. You said up mean, many eyes. happens, there and A. What I how looked her Yon sat said, eyes years get? “I and she was will looked dead, I put so her in bed.” You knew Q. you know. kind of how I don’t It’s you you had her to death. And beat Right you’re going help yourself. now so the house were scared cleaned trying big for the time. You’re not hap- up. pretty That’s much how yourself. You want to tell the help don’t it? pened, isn’t truth. A. No. hon- telling I am the truth. To be A. est, it’s a blur. Q. happen? Then how did it may It be a everything Q. I can’t believe that. you, A. Be honest with you you knew that all little of blur but a blackout. you you and all fighting remember beat Q. you You mean out and blacked jury’s each other. think a hitting You her to death? Honestly? to believe that? Is going A. No. you don’t re- jury going to believe that Q. happen? Then bow’d it Row’d she you you all and beat- fighting member cleaned the get beat death? Who you jury’s going to ing her? Do think a up? Why up all the place you did clean body to believe that? Now we sent the blood? they’re autopsy going to come back my A. That’s responsibility. Maybe tell us how beat. she was shot, you I know. Did she was don’t her to Q. you you’d And knew beat you gun? Have got shoot her? death. Yeah, A. but it’s unloaded. No. A. her? Q. you So didn’t shoot hap-

Q. sorry You were that this very you? weren’t pened, A. No.

A. Of course. Q. you didn’t shoot her? So kill I don’t Q. You didn’t mean to her. A. No. you did.

think Q. You’re sure? froze to A. I couldn’t believe that she positive. I’mA. death. Q. positive you You’re didn’t shoot Q. froze death? Who her? My A. wife. A. Yeah. It’s loaded. to death. She’s Q. She didn’t freeze But all of a Q. that’s not a blur. So no There ain’t beat death. been can’t re- you it is a blur when sudden ninety freezing to it. That house is That don’t you how beat her. member freezing ain’t no degrees inside. There one If remember make sense. can to death.

in there. She’s beat been fact, another fact. I can remember only happened. thing That’s the Well, now. you help yourself better you got And been beat to death. She’s telling you I can remember. A. I’m all got and she and she was drunk drunk me. Everything’s up fuzzed got fight. in a to death. You all beat fight- all you can’t Q. You remember fight yesterday in a afternoon. got You ing? after- troopers yesterday had here We A. No. fighting. You all were noon. a mark there? See you Do see

Q. you fight- all marks? You don’t remember your the skin off you the marks? See You don’t remember? When ing? Hitting kind of caused that? got up morning, what knuckles? What you clothes did have on? her?

A. I don’t know. A. No.

Q. you pants Did have these on? Now it. No- Q. That’s what caused Yeah. shower, ‍​​‌​​​‌​‌​‌​​​​‌‌‌​‌‌‌‌‌‌‌‌​​​‌​​‌​​​​​​​‌​​​‌​​‍you? house, they? didn’t you took a in this do body else lives A. Yes. A. Uh-uh.

Q. yourself up, you? You didn’t washed Q. people two There’s her, right? house. You A. Yes. A. Yes.

Q. you. Because had blood over Am I Q. alive. She’s dead. You’re handling rags. but from Nothing A. right? Oh, on, Q. Phillip. you You know come A. Uh-huh. you you all over from where

had blood got fight you up. in a beat her You Somebody’s Q. to death. She’s beat you passed killed her and out. That’s I don’t guess. her to death —I beat pretty probably place. much what took I if shot or not. don’t know she’s been you I don’t see marks on where she know, shot. but I don’t think she’s been there, you. up you hit That mark told body up put it back picked You you. me the commode hit That was the on the bed. you thing

first told me was No, I (interrupted). A. what Now, you. you telling commode hit are Q. just you You told me did. me that didn’t happen? put off the floor and it picked up A. I A. Uh-uh. in the bed. Q. you commode hit there. she So you and it’s Q. And I see one mark on head, your didn’t make that mark on are on, guess you say your I on the forehead you telling me? side, your you left And right or side. A. Yeah. the commode made it. Is tell me that Q. you. she made no marks on So She right? you. got didn’t hit You mad and beat A. Yes. her up, beat to death. Q. Tell me about that. How did No, I (interrupted).

A. commode make that mark? Q. didn’t hit didn’t She herself. She Well, and fell slipped A. I the tub make those marks on herself. She trying pries up I was [sic] forward. didn’t her mouth herself. You did. bust commode. your did Let me see hands there. What Q. Okay. you got any Have other do, you your get on hands to use Clorox you? marks on your of it? You’ve washed the blood off A. Uh-uh. (interrupted). hands almost place. Any your on chest? Q. No other No, A. that’s a skin condition. A. Marks? Put Q. your Let me see knuckles. that? Q. Yeah. What’s your together. knuckles Look I wound when A. That’s an old knife your knuckles. caused marks on What (interrupted). your on knuckles? See the the marks Q. you got washing about new ones? You machine where put What anything? washing stuff down machine to be washed. know we found blood on We A. No. doors. There’s blood the bed- Q. Nothing? got You have some marks room. blood all over There’s that house. knuckles, your places your on some And she’s been beat to death. Now knuckles, right? I Am I right? am what’s it look like? Don’t take a moun- A. Yeah. scientist, scientist, figure tain brain Q, say they IAnd would come from telling out that somebody’s not the truth hitting her. here, I I come does it? mean in and A. Uh-uh. pretty look and can see much around Q. Well, they get did how there? Phil- trying what I’m happened. give you lip, me. Phillip, you’re don’t lie to If your chance to tell side. there was you’re to tell me the truth wanting fight, anything if to provoke she did you you scared. Are scared? What are you, just it. If want to hear she didn’t gonna of? happen scared What’s you, do if anything provoke there was you? fight, no didn’t beat tar out her, it. was it? Did she so be What A. Uh-huh. hit you? ever Well, Q. you right I can tell now that A. No. happen you good to gonna what’s is not you’re lying. you you When lie because Q. you. just She You never hit hit her. mean, more trouble. I always get in A. No. just way Everytime that’s life is. I Q. say You to ‘Yes” wanted that time. lie, I get in more trouble. your You stood there and shook head didn’t, A. I I didn’t. No. wanting tell ‘Yes.” You’re to me the Q. truth, didn’t what? You scared to tell me the you’re but times; truth. I this is bad understand A. I didn’t murder her. your you, but let tell this is me Q. There was only Who did? the two time. comes game This ball around one you there. She didn’t murder herself. speak time. You better now. We’re A. She was stone-blind drunk. going grand jury. to You don’t want be, Q. you may but didn’t have to She to for a murder If up be locked one. her, beat to death. You whipped her why you there’s any circumstances her, you she beat died from it. beat her we need to know up, beating. autopsy’s go- That’s what Everything’s A. No. sort of blurred. autopsy’s to going to show. The Q. just “hunky-dory.” You all were show you beat and she died. buds, good Just huh? You hadn’t been All that in that house. Come on blood fighting. fight yesterday You didn’t af- up. it why you now. That’s had clean ternoon. You this up morning cleaned where A. Uh-uh. you laying, she wаs where found her. night. last Did Q. fight You didn’t No,

A. sir. you? Q. going apart. tear house We’re A. Uh-uh. get everything. going

We’re We’re (inter- morning clothes, Q. Did your you fight going to find blood rupted). know we found probably. We blood coming expressed by Stephens, opinions A. No. law, were officer of the respected from a you just You beat Q. got up? When and constituted revers- clearly prejudicial (unintelligible)? tar out of her ible error. A. Uh-uh. Q. you I know did. II. DIARY.

A. Uh-uh. trial, from numerous entries During the your head Q. Why you did shake cumulatively intro- diary were victim’s Did she “yes”? up? Now who beat her duced into evidence Commonwealth’s hit up? herself Did she herself beat charac- 19. Most of those entries Exhibit Did the mouth? Is that what she did? lazy, drug-addicted, terized as a kill herself? up she beat herself person who used his wife’s unemployed kept getting up trying A. No. She drug and his earnings support himself (interrupted). to walk and diary were portions of the habit. Other why Q. fighting You were and that’s presented The entries not admitted. up. That you had to clean the house were as follows: pieces all place probably tore Wednesday January 2001— fighting. where again I’m of how Every day reminded A. I swear. slug I’m married to.... He much of a Q. you except There’s not a mark on drug addicted bum. simply [is] your your that one on head and knuck- January Tuesday 2001— les. That’s all the marks I’ve seen. Maybe today. hope fall dead I so. he’ll your IAnd understand the marks on him passionately. I HATE I knuckles. don’t understand the one on 2k, January fresh, It pretty the head. looks you don’t know when hit the commode. me somehow to afford to expect He’ll if buy plus pot You said she didn’t do it. So she him 15 more tomorrow marijuana]. referring didn’t do it and she didn’t make to [presumably them, you, you just marks on then did to inconsiderate son-of-a- He’s the most her, course, guess. I Of bitch I’ve ever encountered. buy pout if I he he’ll don’t what wants A. No. all weekend. Q. Phillip, okay. 25, January 2001 I really

A. can’t remember it. laying asleep. still in there The bum is Q. going put you I’m to in a car back enough I don’t make He’s mad because think Maybe you’ll here and let sit. dope & all. money keep up to him —with going stop in a few minutes. I’m to 31, January 2001 min- tape. twenty-five It’s now about Okay. utes after seven. Says make me He blackmails me. he’ll job. It me my my lose house & scares added.) (Emphasis I he wants. so do what might if there an occasion when Even be 7, February 2001 opinion that the interrogating officer’s do, li- anything have to no guilty, lying, defendant is or that He doesn’t cense, kick- necessary job, pot. to no no That’s the jury will not believe him is context,” pot. pot “in er—no he has he’s put the defendant’s answers When obviously happy, depressed. if not he’s We’ll such was the case here. 42 in a

probably up fight tonight end more. He wants to cut back Ix’s me for see them .... I do gotta something. cause he blames all his woes. n 9, 6, Friday March February 2001 2001— one variable that can We left to last a changes It’s the & have 80 V’s month just my going stop taking Problem & I’m to change life. is—I can’t af- 1/2. hope them & I I pot happens. ford a week. see what die. Phillip would $150 I’d rather than live sleep gone rather for 6 months be dead & get than to I him. job day. SOB another hate I help Phillip giant so no there. is a despise hope him. I he dies. slowly sucking leach the life out [sic]— get way. I rid of him me. have some 12, March 2001 off get [pre- But 1st I have to the V’s days Bad 40 coming. are We have V’s. sumably referring to That’s Valium]. days going We have left. I’m to go holding how he’s me. into Phillip. withdrawal & so will We’re 9, February Friday night can’t Tommy great 2001— or trouble. get just pot, any. he’s a horrid little man. It won’t We’re screwed. If Without days I’m personality his real careful I’ll have about through lets shine nasty, ... horrid little work. know. man. He won’t Then—I don’t work, act like a being he won’t human 12, March Help I’ve pot. got God Me. to detox w/o I HATE I get As soon as HIS GUTS. rid him. quick get& [sic], good buy off these V’s— February Saturday 2001— March today. I have no Phil- pot dread We so Another day, fight. another in his all lip will either hide bedroom Tuesday March 2001— stomping or come weekend out with slug up I have to to Tokiko take the mean, disgusting look his face. He’s I’m get a check. That means late $50 gonna run out of & I. I’m V’s so am every for work. thinks Phillip little go get to St. de- preparing Joe thing granted he wants should be imme- give really toxed. I don’t a damn what him .... diately. really I hate He’s a He thinks he’s entitled to be he does. person. horrid I that he wish time. He can’t <f> without high FALL DEAD. being ‍​​‌​​​‌​‌​‌​​​​‌‌‌​‌‌‌‌‌‌‌‌​​​‌​​‌​​​​​​​‌​​​‌​​‍high. HAVE TO RID of GET 11, April 2001 if losing my him even it means house. going crazy, sleep. I’m can’t He’s driv- buy him I can another He’ll house. W/o HE ing me I WOULD insane. WISH try today help me fight God w/me FALL DEAD! no keep my arguing cool. There’s need an idiot. with 16, April 2001 22, February Thursday just piece of s— that big He’s a fat 2001— won’t work. I HATE HIM. DEAR piece I see what of s— does Now DEAD! GOD let him FALL He day sleeps. accomplishes all —he nothing. He’s not worth the 10 cents 28, Saturday April 2001-— his I to blow brains out. for a bullet much longer. I can’t his support habit HE DIE. WISH WOULD w$y I’m That going quit everything. k, March 2001 to blackmail me anything he won’t have I Him. I wish he would [appar- to stand the with. hate girls He can’t seem grandchildren] any- FALL DEAD. ently referring to

43 27, pills keep himself zoned eating nerve May 2001 asleep cause he’d rather be asleep out or I die. He’s still wish SOB would if he’s not stoned. gets I he hope out the ear now. 10, July 2001 jail years. God

caught put& for 20 much I HATE HIM. only knows how from gets money as he his says He soon leaving. promised He Papaw he’s 28, May Day 2001—Memorial I all the credit card bills pay me he’d buy pot A Phillip wants $50.00 yr. in 2 & up ran since he’s not worked just it, swing DAY. I can’t don’t know day. pot every smoked Loser. what to do. He thinks the inheritance 19, July gonna get grandpa gon- he’s from his is up yrs working. for 3 of not Phillip’s na make it. a getting There’s no around get I’ll if surprised living. be we make a big fat loser. He can’t $1000.00. yard, yet nothing He does but mow the 9, 2001 June day. a He’s dope he wants worth of $25 pray I to God that son of a bitch will die. always Pussy. like a let me cold Won’t fall I him every Just dead. hate with I HATE turn the air conditioner on. my being. pathetic fiber of He’s a leech. HIM. already dry. I’m in He’s drained me so 28, July I’ll pay much debt never it off because today’s day supposed HE ... we’re dope pouting wants he’s still Well painting guess the 1.room & who’s morning. Maybe pout he’ll himself start guessed big I it ... hope Maybe get to death. so. he’ll still bed. You just probably stay hit I He’ll in bed lightening hope lazy so. loser. [sic]—I hope say I’ll it’s too late to disappear my wish he’d from life. until 10:00 & big, pussy, But I start. won’t. He’s 21, Thursday June 2001— worthless. lazy, completely loser. He’s just anything. He “can’t deal” with A August weak, pathetic being. human God let got a few things Still are OK. I’ve still him fall dead! gone But hundred dollars. that will be June Thursday 2001— get paid I till the 20th. this week & don’t ... Phillip guess where—in bed.... ... money that there’s no it’s Even after The real reason he’s in bed is I because fight- That’s when the owed bills. buy pot again today. won’t He wants a again. ing will start bag everyday. As of now I am no $25 August longer pot smoker. But that won’t I feel like I’m My life is out of control. help. day. He will still smoke $25 about losing fighting Phillip it ... anything. But he wouldn’t work for He really .... don’t money all the time just expects anything won’t he work but together I can hold it at work feel like wants. I wish he would FALL Dead. I think the end is near. tomorrow. It’s like he blames me because we don’t lk, August enough money buy day. to a a bag have my I think I hold I mom sends me he wants. up part of this deal. Even the $ bill, food, pay every buy every But work! NO He would sit & bite WAY. I pot simple and all the I can. But addi- starve to death rather than work. men enough tion & subtraction be wish someone had warned me about should get If I could proof just money that we don’t have the who look for mothers.... escаpe I could buy away pills a starts from the nerve bag every day. to Then he admitted except those which the victim heard of I wish I’d never this situation. Valium, tended to which she was addicted Lanham. Phillip or seen theory that the vic- support to 15, August while intoxicated tim fell and killed herself preys stupid a leech. He off Phillip is (2) alcohol; agreed to the by drugs and get I can people pray like me. to God of the incident admission of the evidence out. so I can Kick His Ass off these V’s days of the victim’s that occurred within pile of He’s worthless as a s — . (3) death; any knowledge of the denied 21, August (4) incident; objected “welfare check” anything— Phillip & I will never have eight- to the pertaining to evidence Phillip that. Both will make sure of God Following the charge. year-old assault never have but & I are addicts & we will entered a hand- hearing, the trial court forget I can about the bare minimum. diary entries holding order written furniture, cologne, anything extra. new they are offered to in that “admissible inheritance, I would As for the so called victim,” then of mind of the prove the state not come to be. my that will We bet negotiating parties were noting that life along, scraping doing & without will etch used and that would be over which entries fun. until we die. So much “[djefense objections por- on may renew not rule The court did agreed.” tions not 1, Saturday September 2001— other three admissibility of the on the crazy. going & I’m living on credit We’re incidents, to this and their relevance cent bring in another Phillip will never in the identify is to which evidence appeal All he does pathetic life. the rest of 404(c) agreed notice defense counsel KRE take, I’d be TAKE TAKE. I know is she did and which evidence to admit get I could rid off him. Wish better w/o did not Specifically, she agree to admit. pathetic. of him. He’s prof- of all of the to the admission agree notice gave pretrial The Commonwealth diary fered entries. 404(c) KRE of its intent pursuant entries, other evi- along with diary (2) (1) entries; diary evi- introduce: during issues, again discussed dence had been called to police dence that the on the morn- hearing limine lengthy murder, days of the residence within inter- majority opinion of trial. The Appel- calls that responding to the victim’s by defense counsel made prets statements house; her out of the trying put lant was to the hearing agreement during this (8) check” police performed “welfare entries that were all of the admission of family’s response on the victim evidence, the en- except introduced into not let her out claims that would 4, 2001, May tries dated March (4) house; September that on However, interpreta- the accurate 2001. prior to the victim’s eight years that the trial court tion of these events not con- death, charged, but Appellant was 28, 2003, that all the January ruled victed, degree fourth assault under the admissible diary entries were had that he allegation on an based hearsay exception to state-of-mind head,” causing the victim’s “slammed 803(3), parties rule, and that KRE head, dis- during a domestic knot on her on which entries agree attempted then turbance. in accordance be introduced parties could Because hearing ruling. held on that in limine During an the entries 28, 2003, on the introduction agree defense January these issues on 2001, 27, defense May 4 (1) March and diary dated objected to the entries counsel

45 (“I woes.”); 10, February objection all 2001 counsel renewed her to those viewed, Phillip so today. pot Thus defense counsel’s have no entries. dread We trial to objections morning specif- on the in his bedroom weekend will either hide objec- mean, previous ic entries did not waive her stomping out with or come tion to the admission of the other entries. try He’ll look on his face.... disgusting keep my me fight today help but God w/me relating to the declarant’s Statements (“Still 7, things cool.”); August 2001 fear, sorrow, state, e.g., emotional present hundred dol- got are OK. I’ve still a few excitement, fall within the so-called gone lars. But that will be this week & hearsay exception “state-of-mind” to the till the 20th. after get paid don’t Even 803(3). rule, KRE Ernst v. Common- money ... its all owed in that there’s no wealth, 744, (Ky.2005); 160 753 S.W.3d fighting bills. That’s when the will start Commonwealth, 375, Bray v. 68 S.W.3d only are again.”). These entries Commonwealth, (Ky.2002); v. 381 Partin prove relate to future events and tend 219, However, 222 (Ky.1996). 918 S.W.2d to kill the Appellant’s motive declarant. only such evidence is admissible if the de- Ernst, clarant’s state mind is relevant. reasons, I respectfully For these dissent 753-54; 160 at v. S.W.3d Blair Common- Appellant’s and would reverse convictions wealth, 801, 144 (Ky.2004); S.W.3d 805 and sentences and remand this case to the 381; Partin, Bray, 68 S.W.3d at 918 for a new trial. Garrard Circuit Court at 222. S.W.2d Since did self-defense, feelings claim the declarant’s LAMBERT, C.J.; SCOTT, J., join disgust him hatred toward dissenting opinion. 381-82; Bray, irrelevant. at 68 S.W.3d Partin, fact, 918 S.W.2d at 222. In most diary only entries consist of inad-

missible evidence of bad char- 404(a);

acter. KRE v. Jarvis Common-

wealth, 466, (Ky.1998) 960 471 S.W.2d

(evidence only paint used defendant in excluded); light a bad should have been LANTER, Appellant, Brian Commonwealth, Chumbler v. 905 S.W.2d 488, (Ky.1995). 494 v. Hearsay pertaining specif- statements POLICE; Hon. J. KENTUCKY STATE events, emotions,

ic opposed are also King, Kevin Administrative Law 803(3), admitted under KRE if Compensation Judge; and Workers’ they relate to the future inten- declarant’s Board, Appellees. tions, already not to events that have oc- No. 2004-SC-0872-WC. Ernst, 753; Blair, curred. 160 S.W.3d at 805; 144 Crowe v. Common- S.W.3d Kentucky. Supreme Court of wealth, 379, (Ky.2001); S.W.3d 25, Aug. 2005. Commonwealth, Moseley v. 960 ‍​​‌​​​‌​‌​‌​​​​‌‌‌​‌‌‌‌‌‌‌‌​​​‌​​‌​​​​​​​‌​​​‌​​‍S.W.2d (Ky.1997). Aug. As Corrected 2005. only diary entries admissible under legal principles these were those dated (“We’ll up

February probably end me for fight tonight cause he blames if notes this is similar to diary As the victim. even previously had ruled was improperly, judge it was the trial entry was introduced objection no trial. inadmissible at While harmless error.

Case Details

Case Name: Lanham v. Commonwealth

Court Name: Kentucky Supreme Court

Date Published: Aug 25, 2005

Citation: 171 S.W.3d 14

Docket Number: 2003-SC-0268-MR

Court Abbreviation: Ky.