Metcalf v. Commonwealth

Wayne METCALF, Appellant, Kevin Kentucky,

COMMONWEALTH

Appellee.

No. 2003-SC-0098-MR. Kentucky.

Supreme Court of

Jan. 2005. Rehearing

As Modified of Denial of

April 2005. Thomas, Null, Null, L. Daniel C.

Dennis Paitsel, Thomas, Mayfield, Samson & Appellant. Counsel for General, Stumbo, Attorney D. Gregory Harned, Shier, Assis- Michael Carlton S. General, of the At- Attorneys tant Office Frankfort, General, torney Counsel for Appellee.

COOPER, Justice. jury A McCracken Circuit Court con Metcalf, Appellant, Wayne Kevin victed sodomy of one count of the first de 510.070, gree, and one count of sex KRS degree, ual in the first abuse KRS 510.110. The trial court sentenced him to twenty years imprisonment for the sod omy year imprison conviction and one ment for the sexual conviction. abuse mat Appellant appeals to this Court as a 110(2)(b), Ky. right, ter of Const. as (1) serting following claims of error: uncharged admission acts in violation (2) 404(b) (c); of KRE denial of his (3) confession; im suppress motion by proper interpretation witnesses audiotaped of his con portions inaudible (4) fession; exculpatory ev destruction (5) Commonwealth; by release idence subpoenaed of a witness the Common consent; Appellant’s wealth without (6) the Commonwealth’s recall of two wit purposes during nesses for rebuttal its and remand case-in-chief. We reverse for a trial because of the this case new admission of evidence of un improper charged will address those crimes. We likely claims of error that are additional upon Springer to recur retrial. v. Com 1999). convictions of sexual abuse sodomy allegations from that he stem vagina step- licked the of his

fondled and daughter, investigation began C.I. allegations another relative had Stacey 2001 when Albritton because September recently jailed sexually abusing for re- been for Families and Children Cabinet would “scared” his child and be had complaint ceived him. S.K., thing happen that the same would stepdaughter, videotaped another and undressing. she was Albritton while I. UNCHARGED ACTS. Kentucky State Police Detective Sam motion in li- Appellant pretrial made a Steger Appellant’s residence and went mine any inap- to exclude evidence of his S.K., Appel- related that interviewed who involving conduct propriate sexual S.K. upstairs videotaped lant took her and her Appellant specifically sought H.K. and clothing except all her as she removed of testimony regarding videotap- exclude and then panties. her Albritton S.K., H.K., exposure to ing of the indecent H.K., step- and another interviewed C.I. allegation by H.K. that he and another during daughter. C.I. stated pornographic induced her to watch a movie 2000, Appellant in car- holidays Christmas conceded that prosecutor with him. The her, kicking screaming, and to a trail- ried movie incident was inad- pornographic home, that once inside er behind the and agreed that the The trial court missible. trailer, dress, touched her he lifted her ex- exposure evidence should be indecent them, while re- genitals, and then licked irrelevant, that evi- as but ruled cluded H.K. that while on a straining her. stated videotaping of Appellant’s S.K. dence of Appellant bicycle trip Appellant, with 404(b)(2) KRE be- was admissible under exposed penis to urinate and stopped Steg- and explained why cause it Albritton All of the children were under to her. residence and gone er had incidents oc- years twelve old when these trial, however, the During C.I. interviewed curred. ruled that evidence elicited court Appel- interviewed Steger and Albritton by of defense cross-examination H.K. Department lant at the of Social Services admission of “opened the door” to counsel (“DSS”) Appellant did not office. When evidence and exposure the indecent both information, Steger of- any useful provide pornographic movie evidence. trial, At fered to conclude the interview. A. Preservation. workers, Albritton, two social Steger, and watching through the interview were who asserts The Commonwealth two-way training purposes, mirror for appel for preserved these issues were down testified that then broke inadequate they because were late review crying, allegations, admitted to all the and limine rul at trial. The ly preserved to himself as a “sick bastard.” referred trial, morning of on the ings were made placed He under arrest. object not further counsel did defense of the video during trial to the evidence sought indictments The Commonwealth However, defense counsel incidents, jury grand taping but the S.K. for all three cross-examina at trial that his argue for the sexual did indicted for trial, C.I., the door” “opened tion of H.K. had not sodomy of C.I. At abuse expo indecent S.K., of the allega- all recanted their admission and H.K. Because movie. tions, jointly pornographic had sure and stating they fabricat- by the preserved properly were so that he the issues ed them to “scare” motions, address in limine we need not They explained stop drinking. would preserve counsel failed defense them when drunk whether father had beaten C.L’s specifically he did not the issue because thought of the sexual abuse they and that ” state, object.” “Inextricably “I intertwined. C. cites Tucker v. crimes, wrongs, “Evidence of other (Ky.1996), proposi for the prove or acts is not admissible to the char tion that the motion in limine was insuffi person of a in order to show action acter cient to preserve these issues for review. 404(b). KRE conformity Ap therewith.” argument ignores This an entire sentence pellant asserts that evidence of the video 103(d), states, in KRE which “A motion S.K., taping exposure, the indecent limine resolved order of record is suffi incident, pornography admitted preserve cient to error appellate for re i.e., inclination,” only to show his “lustful explained view.” As in Davis v. Common type person that he was the who would wealth, (Ky.2004), likely molest C.I. See Pendleton v. Com Tucker applies when the motion in limine 549, (Ky.1985) 685 S.W.2d 552 general is directed at a area inquiry, (“[N]o evidence is admissible to show ‘lust sometimes referred to as a “class of evi ”). ful inclination.’ The Commonwealth dence,” Lawson, Kentucky Robert G. The not that the acts so does assert were simi Handbook, 1.10[3][f], § Evidence Law at establish, lar to charged offenses as to (4th 2003), 36 ed. particu LexisNexis not a e.g., identity through motive or evidence of evidentiary lar fact. Appellant’s motion in 404(b)(1); KRE operandi. modus Bill limine and the trial rulings court’s thereon Commonwealth, 890, ings v. 843 S.W.2d testimony regarding covered particular ev- Rather, (Ky.1992). 893 the trial court ad identiary facts and thus properly pre videotaping mitted the evidence under all served three of these for appel issues 404(b)(2) KRE the evidence ex because late review. plained why Steger and Albritton to came B. Notice. Appellant’s residence to interview his chil Appellant asserts that he did not receive dren, was, therefore, it reasoning that “so notice the Commonwealth’s intent to inextricably charged intertwined” with the uncharged introduce these required acts as seriously offense that its exclusion would 404(c). However, KRE the Common adversely affect the Commonwealth’s abili wealth included this in information its bill However, ty present to its case. as we particulars. Hayes RCr 6.22. See v. Commonwealth, noted in Funk v. 842 Commonwealth, 879, (Ky. 58 S.W.3d 881 (Ky.1992): 476 S.W.2d 2001) (“The provided Commonwealth no key understanding excep- to this [T]he tice in its Bill of planned Particulars that it tion “inextricably.” is the word The ex- to [appellant’s] introduce three-year-old ception only relates to evidence that ”). Further, misdemeanor conviction ... must in it come because “is so interwov- 404(c) purpose of KRE is provide to charged en with evidence of the crime an opportunity challenge defendant to that introduction its is unavoidable.” the admission of the evidence. Tamme v. added) Commonwealth, 13, (Ky. (emphasis (quoting 31 Id. at 480 Law- 1998). son, Appellant Kentucky The fact that filed a Evidence Law Hand- book, (2d ed.1984)). 2.20, motion in limine to suppress the evidence at 37 also See Commonwealth, proof 209, is prejudiced by Fleming Ky. he was not a v. 284 (1940) (evidence 220, failure to receive formal notice. v. 144 is Soto S.W.2d Commonwealth, inextricably S.W.3d intertwined where “two or 2004); Bowling together 942 more crimes are so linked point of time or that one circumstances trial, happened the what this case. At fully proving

cannot shown without be other”). elicited from they Steger gone and Albritton that had to simple It have matter for would been investigate to an al- Appellant’s residence truthfully testify Steger and Albritton videotaped had legation they came to residence (1) undressing, but also elicited from S.K. abuse investigate allegation an of child Albritton, Steger, and the two social work- uncharged video mentioning without watching through the two- ers who were “Patently this is not a taping incident. way mirror that confessed to necessary sup case where it would be having destroyed and to videotaping S.K. press facts and circumstances relevant by burning pile it on a burn videotape charged of the offense commission yard (Steger even introduced his back in order [sodomy and sexual abuse of C.I.] (2) pile); photographs of burn prior of the offense to exclude evidence that she had told elicited from S.K. Funk, [videotaping S.K.].” Albritton, Driskill, as well as Barbara at 480. See also Scamahorne Common (convic Advocacy clinical director of Child Watch wealth, (Ky.1962) 357 S.W.2d 30 Center, videotaped her had carrying deadly weap tion for a concealed the in limine hear- undressing. During of arrest on discovered service and the defense ing, prosecutor of both the warrant reversed because of admission that, asked, if knowing the warrant was for a counsel admitted evidence would recant her accusation charge burglary). probably of bank S.K. and claim that the incident had not oc- warns, KRE As Professor Lawson did, fact, After recant curred. S.K. 404(b)(2) special a threat to the “poses by prosecu- the during direct examination objective de- overriding protecting law’s of tor, impeached her re- the Commonwealth that is in- against prejudice fendants the Steger and Albritton by recalling cantation herent in evidence of other crimes.” Law- S.K. had told provide details of what 2.25[4][e], son, § at 139. supra, incident, by calling and them about expanded “In ... this idea of practice, testify Barbara Driskill as witness way paves contextual relevance often her about the had twice told S.K. in- anything that are but prove acts incident, paid her including crime, charged and separable [from] clothing. to remove her ten dollars easily a catchall this label can become far admitting for other acts that are initial Steger’s if and Albritton’s Even prejudicial more to the defendant than they to the Metcalf testimony that went determining guilt of useful videotaping investigate the residence to charged offense.” KRE under had been admissible incident Fed- (quoting Kirkpatrick, Id. 1 Mueller & 404(b)(2) (it not), Appellant’s neither ed.1994). 111) (2d eral Evidence act1 nor committing the confession to “inextricably testimony it was KRE about that misuse of S.K’s specter offense. 404(b)(2) charged of intertwined” with lead to the introduction will confession by is The exclusion prejudicial collateral facts embodied However, only this raised Appellant's asserts that tors. 1. The Commonwealth hearing. videotaping pretrial suppression incident was confession to the at the claim trial, that his confes- admissible to rebut his claim testify so there was Appellant did not at only "yes” and "no” an- sion consisted claim to rebut. no such interroga- leading questions swers to testimony may videotaping prosecutor S.K.’s about the of conduct. The introduce accused’s bad character required suppres incident would not have evidence only to rebut evidence of the accused’s any sion of facts and circumstances rele not intro- good character —which had been charged sodomy vant and sexual testimony. duced at the time of S.K’s Funk, abuse of C.I. at S.W.2d 480. 404(a)(1). KRE And character evidence is And, course, testimony absent S.K.’s reputation in the form of admissible recantation, subsequent there would opinion, specific or instances of con- have no at all been basis for the admission duct, here, where, as character is not an prior of S.K’s inconsistent un statements claim, charge, essential element of a or 801A(a)(1). fact, der KRE it is doubtful KRE 405. defense. opened S.K’s recantation the door for ” the rebuttal evidence since she admitted “Opening D. the door. having story told and Albritton the noted, As the trial court sustained videotaping about the but trial claimed at Appellant’s in limine motion to exclude that she had lied to them. him indecently exposed evidence that he Further, the videotaping incident was a H.K., prosecutor self to and the conceded fact, although collateral there is no pornographic that the movie provision in Kentucky Rules of Evi After ac inadmissible. C.I. recanted her prohibiting dence impeachment on collat cusation that had sodomized and facts, eral have consistently recognized we her, sexually abused the Commonwealth that prohibition as a principle valid of evi testify called H.K. as a witness to that C.I. Commonwealth, dence. Purcell v. previously sodomy had told her about the (Ky.2004); Neal v. cross-examination, and sexual abuse. On following the colloquy occurred between 2003); Commonwealth, Slaven v. 962 defense counsel and H.K.: 845, (Ky.1997); S.W.2d 858 Eldred v. Com Q. During you the entire time that 694, 906 (Ky.1994), 705 him, have known has Kevin Metcalf abrogated grounds by on other Common any improper ever committed touch or Barroso, 554, wealth v. 122 S.W.3d 563-64 upon you? act (Ky.2003). Professor Lawson suggests A. No. test, i.e., the KRE balancing The trial question court held this and weighing probative the value im of the the “opened answer door” to the admission peachment against prejudicial the effect of exposure pornography the indecent the possible evidence and its confusion of evidence. H.K. recanted those ac- When issues, resolves the issue properly more cusations, the Commonwealth introduced than a distinction between collateral and into evidence a written statement Lawson, non-collateral facts. supra, father, H.K. had to given biological her 4.05[3], § at 276. It would be a rare oc allegations. which included Al- those currence, think, prejudicial we when the though H.K. admitted that she had also effect of evidence of “other bad acts” allegations Steger made the same to substantially outweigh would not the im Albritton, the trial court allowed the Com- evidence, peachment value of such and this monwealth to recall and Albritton case is not that rare occurrence. repeat that H.K. had described the two was, therefore, The videotaping Fralee, evidence Bridget incidents to them. anoth- essentially proof worker, of Appellant’s bad moral er social also testified that H.K. specific character evidence of a instance had described the two incidents to her. evidence, Appellant preserve exculpatory exposure and allegations of indecent suppress motion to his pretrial were collateral made a exposure pornography in Part I trial court overruled supra, was said facts and what confession. While C, motion, on a collateral fact impeachment granted Appellant’s it later about just as it does to in- “missing jury to these incidents evidence” applies request for a “opening As for videotaping provided: incident. struction. The instruction door,” presumably trial court has lost or de- The Commonwealth ad referring to the doctrine of “curative case, involved this stroyed evidence i.e., introduces missibility,” party when one audiotape and notes specifically a[n] evidence, the door” improper “opens such your interview. delibera- from an improper party for the other to introduce tions, infer, you may but are you only claim to in rebuttal whose evidence evidence, infer, if that this required to explains it or rebuts the admission is that now, favorable to the would be available evidence. Norris v. prior inadmissible case. Defendant’s 411, testimony challenges now 1.10[5], Lawson, 2002); at 43. supra, rea- for the same regarding his confession Commonwealth, 105 See Johnson motion. He pretrial forth in his sons set 430, (Ky.2003) (daughter’s “forcefully spoon-fed claims that he was her that she had never seen statement statement,” and that absent of his portions char drugs impermissible father with or his decision to waive audiotape admission of permitted acter evidence and testify, he right not Fifth Amendment previously father had evidence that her the Commonwealth’s way had no to refute Here, trafficking). pled guilty drug of his confession. account however, it was the im arguably H.K’s opened the door for may have faced While “good char evidence of proper dilemma, require sup would not such videotaping incident as by using acter” of his confession. pression of evidence character. of his bad moral 373 U.S. Brady Maryland, Under reintro- and continuous The introduction (1963), a crimi 10 L.Ed.2d S.Ct. highly prejudi- duction of inadmissible process pro to due right nal defendant’s uncharged acts cial evidence of these other withholding from government the hibits for a retrial. requires reversal evidence, in or good exculpatory material 87, S.Ct. at 1196-97. in faith. Id. at 83 bad II. CONFESSION. meets the materiali Exculpatory evidence Brady A. Issues. affect only if it would have ty requirement of the trial. United States the outcome unsuccessfully attempted to ed 667, 674-75, 105 S.Ct. Bagley, he v. 473 U.S. When record confession. (1985). In the 3375, 3379, 87 L.Ed.2d 481 audiotape, he dis replay tried to the later exculpatory preserve context of a failure to He sent the that it was inaudible. covered evidence, must show the defendant Police labora tape Kentucky to the State faith. Ari acted in bad government the any if of the interview tory portions to see 51, 58, 109 Youngblood, 488 U.S. the zona v. Unfortunately, recovered. could be (1988); 333, 337, 102 L.Ed.2d 281 the interview S.Ct. laboratory could not recover 479, 488, Trombetta, 467 v. U.S. inaudibility tape’s that the and concluded California (1984) 2533, 2528, L.Ed.2d 413 81 battery failure. 104 S.Ct. from likely most resulted prove to was unable (noting to that defendant failed Claiming that the Commonwealth

747 (9th Cir.1990) (Brady require government acted with animus 734 does disposing towards him in sam prosecution tape breath to of its interviews wit Pedraza, ples); 27 United States F.3d nesses; obligation no constitutional (10th 1515, Cir.1994); 1527 Kirk v. Com material); States v. compile Brady United 823, 6 S.W.3d 826 (9th Bernard, 854, 625 F.2d 859-60 Cir. Additionally, exculpatory value 1980) (federal agent’s intentional refusal to evidence prior must have been obvious interviews so that defendant take notes of destruction, its and the defendant must them did not vio could not later discover inability demonstrate an to obtain the evi Brady). late dence other reasonable means. Trom

betta, 489, Appellant Brady mounts a second 467 U.S. at at 104 S.Ct. 2534. challenge, respect this time with to Albrit- inquiry That unnecessary is here. ton’s handwritten taken sion, disagree “we ... that fundamental Trombetta, later endorsed in at U.S. fairness cannot be a trial ensured 487, 104 at S.Ct. 2533: disputes court’s resolution of factual re “If ... agents’ only Commonwealth, 63 court, Commonwealth, Anderson v. trial 754

ing in Sanborn (2) “the and (Ky.2001), 142 opinion), S.W.3d (Ky.1988) (plurality ... broad discretion judge has jury with trial may not furnish the party that a interrogation pro- allegations improper of control of witnesses and cluded videotaping by stepdaugh- made one of the duction of evidence and decisions made inextricably intertwined with the of this discretion have not ters were exercise and were therefore admissi- showing charged a acts been disturbed without clear Lawson, judge ble. The trial also ruled prejudice.” supra, abuse and 611(a)). 3.20, exposure bicycle trip on a (discussing allegations at 238 KRE and, therefore, too inadmissi- Regardless, by these issues mooted the were remote are fact that ble. this case must be retried. In statement and before evi opening

Accordingly, we reverse con- introduced, dence had been defense coun victions and sentences and remand this length sel commented at some on the vid case to the for McCracken Circuit Court a eotape stepdaughters. of one of the other trial in accordance new with the content of videotape He noted that no was ever opinion. this found, consequently, and indicated that the LAMBERT, C.J.; GRAVES, tape allegations and that the never existed JOHNSTONE, KELLER, JJ., and entirely by concur. were fabricated the children. the actual evidence was introduced When WINTERSHEIMER, J., by dissents trial, objection In no was raised. a separate opinion. credibility conflicting trial where and by statements the victim and the defen SCOTT, J., not sitting. conclusion, dant are central the ultimate WINTERSHEIMER, Justice, presented regarding evidence such as here dissenting. videotapes the destruction of the was ad I respectfully majority dissent from the challenge by missible to rebut the the de opinion judge because the trial did not prosecution fendant to his The confession. commit in admitting reversible error evi- present did not char evidence show uncharged dence of other acts under the conformity charged acter in with the of circumstances of this fense, case. but rather to rebut the claim that simply product the confession was Metcalf was sodomy convicted of pressure. background convenience or against sexual abuse 8-year his then old videotape thoroughly of the was inter stepdaughter. The convictions arise from necessary twined with other evidence allegations sexually that he abused three Surely, prosecution this enti case. is stepdaughters of his all of whom were present complete picture tled to of the 12-years age under when the incidents committed, including necessary crime argues occurred. Metcalf that it was error background perspective. See Norton any regarding to admit the alle- Commonwealth, gations by made stepdaugh- other two App.1994). This Court has held that evi trial, ters. Prior to Metcalf a motion filed pro dence of other bad acts is admissible prohibit any limine to the use of evi- vided it is so interwoven with other evi pertaining dence to other children. The necessary appropriate. dence that it is prosecution maintained that the evidence Schambon v. admissible, allegations pursu- of other 404(b)(2), ant to KRE and to rebut addition, simply defendant’s claim that he was an- there no error in admit- swering yes no questions police ting allegations or in his evidence of the of indecent Ultimately, judge exposure stepdaughter. interview. the trial con- made the third victim, of that During cross-examination specifically

she testified time she had known the defendant

entire improperly

he had never acted toward her Accordingly, prosecu-

or her sisters. sought

tion to introduce evidence of her exposure

allegations of indecent it, determining that the judge

trial allowed opened the door.

defendant had

Fundamentally, the decision to admit or

exclude evidence is left to the sound dis- judge. reviewing

cretion of the trial discretion, inquiry

such is limited an question of whether there was discretion.

abuse

English, There arbitrary capricious

was no or action an judge

the trial that amounted to abuse

of discretion. affirm'

I in all re- would the convictions

spects. ENTERPRISES, INC.;

NEWELL Individually, Newell,

and Joe

Appellants, BOWLING, Jr., Judge,

Hon. James Court, Appellee,

Bell Circuit Products, Inc., Real

Concrete

Party in Interest.

No. 2004-SC-0263-MR. Kentucky.

Supreme Court of 20, 2005.

Jan. April 2005.

Rehearing Denied notes While infers that the Common Albritton, participated interview. who preserve wealth audiotaped failed Appellant’s interview and heard his confes confession, otherwise, the trial court found sion, disposed using of her notes after concluding recording that the mal device compile report. them to a testified She functioned and that an recording audible policy investigators that it is office never existed. We will not disturb this reports retain their notes until their fact, finding of nothing as in the record approved, destroyed are and that she had erroneous, indicates that it clearly report her notes after her approved. Deloney, Commonwealth v. notes, claims her like the (Ky.2000), given Steger’s testimony may audiotape, exculpatory have contained that he attempted good faith to record regarding his confession. Thus, categorize interview. we equipment malfunction as a failure to cre audiotape, Unlike the Albritton’s notes confession, ate evidence to corroborate a existed, actually necessitating inquiry an rather than a preserve failure to exculpa Trombetta, 488-89, under 467 at U.S. 104 evidence, tory and we find that none of at S.Ct. 2533-34. has failed to Appellant’s rights under either the United demonstrate that disposed Albritton of her Kentucky States or Constitutions vio were notes in bad faith. defer to trial We lated. Brashars finding destroyed court’s that Albritton (Common 60-62 (Ky.2000) custom, her notes as a matter of rather has obligation wealth no constitutional Appellant, than out of animus toward Delo confession). record itWhile would be 473-74, ney, apply at ideal for the trial perfect court to have Supreme holding United States Court’s evidence in recording the form of a when States, 231, 242, Killian v. United 368 U.S. determining the voluntariness of a confes 302, 308, (1961), S.Ct. L.Ed.2d

Notes

the notes were made garding interrogations custodial on the ba transferring for the of testimony purpose sis of the data persons from the in if, Pedraza, ... having thereon served that volved.” Id. at 62. 27 F.3d Cf. they (Brady implicated purpose, destroyed by at 1526-27 not were the where telephone agents good calls not in faith and in accord were recorded due to with failure, equipment among things); practices, other their normal it would be clear Marashi, 724, v. United States 913 F.2d that their did not constitute destruction audiotape. of an inaudible interpretation its of evidence impermissible destruction an Sanborn, the defense 540-41. any right.” Id. at petitioner of deprive nor disagreed with the Common- attorney Killian, only for Albritton took notes As in twenty-five interpretation wealth’s investigative an compiling purpose Nevertheless, the tape. on the statements has failed Additionally, Appellant report. the Commonwealth permitted trial court materiality require- Trombetta’s to meet transcript jury with a written furnish he is unable demonstrate ment because tape interpretation of the inaudible of its of what that he cannot obtain evidence interpretation of the Commonwealth’s with through oth- during the interview occurred yel- in highlighted disputed portions persons wit- means. Four er reasonable admitted the Com- The trial court low. Albritton, Steger, interview: nessed the but transcript into evidence monwealth’s observed social workers who and the two A any input. the defendant did not allow All of those two-way mirror. through a the trial held that plurality of this Court virtually gave at trial and persons testified by admitting court abused its discretion happened. accounts of what identical transcript into evi- Rivera-Relle, Commonwealth’s 333 F.3d United States argues Appellant dence. Id. at 540. (9th Cir.2003) re- 914, (materiality observed his testimony of those who govern- not met in case where quirement was tantamount to Common- interview audiotape preserve dispatch failed to ment in We dis- transcript Sanborn. to wealth’s agents could have testified when other agree. tape); States the contents on the United Cir.1995) (10th Parker, 1444, 1452 72 F.3d not resemble The situation here does in not met case (materiality requirement Here, permit- the court Sanborn. attendant officers videotape where erased to tes- ted the Commonwealth’s witnesses All four testify happened). to what could observed, the court tify they but what denied witnesses testimony as did the not endorse their did and confirmed his confession “spoon fed” Nor was trial court Sanborn. voluntarily con- that he broke down and permitted the trial court “input;” denied rights constitutional fessed. of the Common- cross-examine all him to their tes- simply not violated because were The witnesses were wealth’s witnesses. ver- with his desired timony agree did not rather, tape; an inaudible interpreting Finally, any possible sion of the events. they, them- relating what they were missing by the evi- was cured prejudice v. Com- selves, heard. saw and Clifford v. Common- dence instruction. Collins 7 S.W.3d wealth, (Ky.1997) (“Giving missing instruction] [a ERROR. CLAIMS OF III. OTHER process than the more provided Appellant claims that raises Appellant also due.”) (internal quotations citations and a sub- excused improperly omitted). per- improperly and was poenaed witness interpretation B. Commonwealth’s as and Albritton to recall mitted audiotape. case-in-chief. during its witnesses rebuttal instance no error either testimony perceive We contends (1) by the excused the witness was because violated the hold describing his interview

Case Details

Case Name: Metcalf v. Commonwealth

Court Name: Kentucky Supreme Court

Date Published: Apr 21, 2005

Citation: 158 S.W.3d 740

Docket Number: 2003-SC-0098-MR

Court Abbreviation: Ky.