MICHAEL WAYNE HOLT V. COMMONWEALTH OF KENTUCKY
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2006-SC-000391-DG
MICHAEL WAYNE HOLT
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APPELLANT
ON REVIEW FROM COURT OF APPEALS
CASE NUMBER 2005-CA-000512
JEFFERSON CIRCUIT COURT NO. 03-CR-003069
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE SCOTT
REVERSING
Appellant, Michael Holt, appeals from a Court of Appeals decision
upholding his conviction by a Jefferson Circuit Court jury on one count of firstdegree rape, one count of first-degree sodomy and one count of impersonating a
police officer. Appellant received a total sentence of eighteen years . This Court
granted discretionary review of these convictions .
The current matter for review before this Court presents two issues
regarding the admission and exclusion of evidence. The first centers on the trial
judge's decision to allow evidence of Appellant's twenty-four (24) and twenty-five
(25) year old prior convictions for impeachment purposes. The second concerns
the denial of Appellant's request to impeach a witness with evidence of her felony
charge and status in the diversion program of KRS Chapter 533. In a trial which
lacked conclusive physical evidence, and where the conviction was highly
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dependent upon the jury's assessment of credibility, the effect of introducing
Appellant's stale convictions mandates reversal . Accordingly, we now reverse
for a new trial.
1.
BACKGROUND
In the early morning hours of December 11, 2002, Appellant, Michael Holt,
went to a Jefferson County White Castle restaurant on a meal break from his
place of employment, at which point he met the alleged victim, hereinafter
referred to as V. Appellant's and V.'s version of the subsequent events differ
substantially, although it is undisputed that their meeting culminated in a sexual
interlude . Holt claims that after meeting V. he engaged in consensual sex with
her in exchange for a ride. V. claims, however, that Holt tricked her into
accepting a ride from him by impersonating a police officer, whereupon he raped
and sodomized her.
At trial, Holt testified that on the night in question he was sitting in his
automobile eating his meal when V. approached and asked him for a ride. V.
had been arrested earlier that day and had just been released from jail.
According to her testimony, V. had made several phone calls to her mother and
stepfather to arrange for either her stepfather or sister to pick her up from jail.
However, for reasons unknown, upon being released, V. walked from the jail to a
White Castle restaurant located nearby . V. claimed that she went to the White
Caste because she could not find a telephone to call for her ride, although she
admitted during trial that there were pay phones located immediately outside the
jail exit.
Holt contends that after V. asked him for a ride, he inquired as to where
she lived . When she told him, Holt claims that he informed her that he could not
take her that far. He testified, however, that he agreed to give her a ride when V.
indicated that she would exchange sex for a ride to her boyfriend's apartment .
Holt then phoned his work crew to inform them that he would be returning late
from his meal break.
Holt maintains that as they neared the vicinity of the boyfriend's
apartment, V. informed him that they could not go there to have sex. However,
she then suggested a place where they could go. Holt testified that when V.
inquired as to whether he had a condom, he informed her that he did not. He
claims that V. agreed to have sex anyway, so long as Holt promised not to
ejaculate inside of her. Holt claims that the two then had consensual intercourse .
However, Holt testified that when he ejaculated inside of her, V. became
extremely angry . As they were driving toward the apartment, Holt claims that V.
asked him to give her twenty dollars so that she could buy some marijuana to
calm herself down . Holt refused. He then dropped her off in front of the
apartment and drove away.
In contrast, V. claims that Holt approached her outside of the restaurant
and asked her if she needed a ride home. She claims that she responded that
she did not accept rides from strangers . V. testified that Holt informed her that
he was a police officer and showed her a badge. Deciding that the ride would be
acceptable, V. then got into Holt's automobile and indicated where she needed to
go . V. testified that Holt told her that he would take her back to jail and tell them
she was a prostitute . V. further testified that Holt told her to show him her
breasts and to pull down her pants . V. alleges that when she objected, Holt
showed her a gun and told her he would use it if she did not do what he said . V.
claims that Holt then sodomized and raped her.
After being dropped off, V. was taken to the University of Louisville
Hospital . Physical evidence proved inconclusive as to whether the sexual
intercourse was consensual. DNA analysis of the sexual assault kit and the hair,
blood, and saliva samples taken from Appellant were found to be consistent with
the vaginal swab taken from V. The examining physician testified that there were
no injuries apparent on V., except a small mark on the left hip and hand .
Subsequently, Appellant was charged and convicted of first-degree rape,
first-degree sodomy, and impersonating a police officer. The Court of Appeals
thereafter affirmed Appellant's conviction . We granted discretionary review.
II.
A.
ANALYSIS
The trial court committed reversible error in admitting the twentyfour and twenty-five year old prior felony convictions for
impeachment purposes .
Appellant argues that the trial court abused its discretion in allowing in
stale convictions as impeachment evidence. We agree .
At trial, the prosecutor's first statement to Appellant upon crossexamination was, "You are a convicted felon ." Appellant's counsel immediately
objected, maintaining that the convictions (theft and receiving stolen property)
were too old to use, as the most recent conviction was twenty-four (24) years old .
However, the trial judge determined that the convictions dealt with veracity and
were thus admissible . Appellant then admitted that he was a convicted felon .
KRE 609 governs the admissibility of prior convictions to impeach a
witness's credibility. It permits the admission of a prior felony for impeachment,
pursuant to certain limitations. See KRE 609(a). However, KRE 609(b) states
that "evidence of a conviction under this rule is not admissible" `if it is more than
ten (10) years old unless "the probative value substantially outweighs its
prejudicial effect." (emphasis added) . Clearly, the language of KRE 609(b)
creates a presumption of inadmissibility for convictions over ten years old unless
the convictions
are
so substantially probative as to tip the scales back in favor of
admissibility. While KRE 609(b) does not divest a trial judge of his discretion in
admitting stale convictions, it is precatory in that it acknowledges a much higher
threshold for admissibility . ~See McGinnis v. Commonwealth, 875 S.W .2d 518,
528 (Ky. 1994) overruled on other grounds b Elliott v. Commonwealth, 976
S-W-2d 416, 421 (Ky . 1998).
In Miller v.
arymount Medical Center, we noted that when ruling on
admissibility for impeachment evidence under KRE 609(b), the balancing test is
the exact inverse of the typical balancing test under KRE 403. 125 S .W .3d 274,
284 (Ky. 2004) ("Under KRE 403, relevant evidence is admissible unless its
probative value is substantially outweighed by its prejudicial effect. Under KRE
609(b), the evidence is inadmissible unless its prejudicial effect is substantially
outweighed by its probative value ."). Moreover, this Court outlined a series of
factors relevant in conducting this balancing test, which include : 1) whether the
witness has placed this credibility in issue by testifying in contravention to other
witnesses; 2) whether the prior conviction being offered for impeachment is
probative of truthfulness; 3) whether the case is civil or criminal ; and 4) the age of
the conviction sought to be introduced . See id . at 285-286. Where the facts of
any particular case fall along the spectrum of these factors will influence the
balancing that a trial judge must undertake. For instance, prior felony convictions
will be more prejudicial in a criminal case than a civil case, and a ten year old
conviction will be more probative than a twenty year old conviction . 1d.
Here, the stale convictions did not just slightly miss the mark. Appellant's
prior convictions occurred a quarter of a century prior to the circumstances for
which he was on trial. This Court has consistently recognized the heightened
scrutiny which stale convictions should receive . In Brown v. Commonwealth, we
held that the trial court committed reversible error in admitting a twenty-two (22)
year old prior conviction for storehouse breaking . 812 S .W.2d 502, 503 (Ky.
1991), overruled on other grounds b Stringer v. Commonwealth, 956 S.W.2d
883 (Ky. 1997). Also, in Scruggs v. Commonwealth, we held that the trial court
properly excluded appellant's seventeen (17) year old prior felony conviction
because it was "so remote as to have no bearing on credibility ." 566 S .W.2d
405, 408 (Ky. 1978) . As we noted in Sommers v. Commonwealth, 843 S .W.2d
879, 887 (Ky. 1992), "[a]s a conviction recedes into the past, the value on the
issue of credibility wanes proportionately, while its prejudice as to guilt is less
easily dispelled ."
The standard of review for the admission of evidence is whether a trial
court has abused its discretion . Commonwealth v. English, 993 S .W.2d 941, 945
(Ky. 1999) . And in conducting a KRE 609(b) balancing test, the onus is on a trial
judge to render findings of fact. See Miller, 125 S .W .3d at 286.
Here, the trial judge's findings of fact failed to support admissibility under
the KRE 609(b) balancing test, and, thus, he abused his discretion in allowing the
introduction of Appellant's twenty-four and twenty-five year old prior convictions .
We disagree with the Court of Appeals' determination that the trial judge did
engage in sufficient balancing and that, as in Miller, Appellant's prior convictions
of theft and receiving stolen property were admissible because they reflected
upon his credibility as crimes of dishonesty . See Miller, 125 S.W.3d at 285
(holding introduction of burglary conviction which was more than ten years old
admissible) . Although, certainly this is a relevant factor, it is not the only
consideration . See Commonwealth v. Richardson, 674 S.W.2d 515, 517 (Ky.
1984).
In this regard, several important distinctions bear addressing . First, Miller
was a civil case, whereas, this is a criminal matter. As the Court noted in Miller,
"while evidence that a party is a convicted felon is always prejudicial, it obviously
is not as prejudicial in a civil case as in a criminal case."
125 S .W.3d at 285.
Second, the nature of the offense is but one of the considerations the Court
outlines in Miller that a trial judge should weigh . Third, although unclear from the
opinion, it appears that the aged conviction in Miller was approximately twelve
years old . Here, the most recent conviction was twenty-four years old . Thus,
although the facts in Miller supported a determination of admissibility, given the
circumstances of this particular case, we are, respectfully, disinclined to agree
with the Court of Appeals' determination that the present instance was sufficiently
analogous, or that the trial judge here reached the appropriate KRE 609(b) result .
In the present instance, witness credibility was central to the furtherance
of either side's position, as both Appellant and his accuser, V., gave drastically
conflicting testimony about what happened on the night in question . Therefore,
the result likely hinged on whose account the jury deemed more reliable.
Assuredly, the introduction into evidence that one of the parties telling their story
was a convicted felon had the potential to irreparably taint the jury's perception of
that person . Here, the trial judge allowed the introduction of Appellant's stale
offenses while properly disallowing introduction of his accuser's felony charge
and diversion . While we find this secondary ruling correct, in all probability, it had
the effect of further skewing the jury's perception of the testimony. Thus, we
cannot say that introduction of this evidence was harmless. RCr 9 .24.
Therefore, the admission of Appellant's quarter century old prior convictions was
an abuse of discretion and particularly prejudicial, bearing in mind the nature of
the case . Accordingly, we find that the trial court committed reversible error in so
doing. See Brown, 812 S .W .2d at 503.
B.
The trial court properly excluded evidence that the alleged victim
was in a felony pretrial diversion program .
Having already concluded that the aforementioned error mandates
reversal, for purposes of retrial, we now turn to Appellant's next allegation of
error. Appellant argues that the trial judge erred by not allowing him to impeach
V. with evidence that she was in a felony pretrial diversion program for complicity
to trafficking in marijuana . We disagree .
Before trial, the Commonwealth made a motion in limine to prevent any
reference to V. being on diversion . Appellant argued that because V. was under
the Commonwealth's supervision during diversion and was the primary witness,
8
the matter was relevant for impeaching her to show potential bias. The trial
court, however, sustained the Commonwealth's motion, indicating that it could
not find a link between V.'s participation in the program and the case at hand.
Appellant now asserts that he should have been able to impeach V. with this
evidence, and that, as such, the evidence was probative of bias because the
witness was compelled to maintain favor with the Commonwealth during trial .
We disagree . V.'s mere participation in a pretrial diversion program, absent any
further showing upon which to infer bias, is an insufficient basis for impeachment .
Assuredly, witness credibility is always a probative issue in any case.
The right to impeach a witness to show bias or prejudice is fundamental to a fair
trial. Williams v. Commonwealth , 569 S .W.2d 139,145 (Ky. 1978) (citing Davis
v. Alaska, 415 U .S. 308, 94 S.Ct. 1105, 39 L.Ed .2d 347 (1974)) . Likewise, the
right of a criminal defendant to disprove the testimony of an unfavorable witness
is a practical analog to the right of confrontation . See Adcock v. Commonwealth,
702 S.W.2d 440, 441 (Ky. 1986) . In that vein, the United States Supreme Court
has held that a
criminal defendant states a violation of the Confrontation Clause by
showing that he was prohibited from engaging in otherwise
appropriate cross-examination designed to show a prototypical
form of bias on the part of the witness, and thereby "to expose to
the jury the facts from which jurors .. . could appropriately draw
inferences relating to the reliability of the witness ."
Delaware v. Van Arsdall, 475 U .S . 673, 680, 106 S.Ct. 1431, 1436, 89 L.Ed.2d
674 (1986) (quoting Davis , 415 U.S . at 318, 94 S.Ct. at 1111).
While it is true that the Confrontation Clause guarantees an opportunity to
engage in cross-examination, it does not guarantee cross-examination in
whatever manner and extent that the defense so desires . Davenport v.
9
Commonwealth, 177 S.W.3d 763, 768 (Ky. 2005); Van Arsdall , 475 U.S . at 679,
94 S.Ct. at 1435. The cross-examination must, at the threshold level, be
appropriate, in that it must elicit testimony of such a nature as to reasonably call
into question the witness's reliability . There must exist some practical connection
between the evidence sought to be introduced and the alleged implication of
bias. See Commonwealth v. Maddox, 955 S.W.2d 718, 721 (Ky. 1997).
Specifically, the evidence should have some proclivity to demonstrate impropriety
or partiality beyond abject speculation . When it does not, the trial court is well
within its purview in limiting evidence that does not support such an inference of
bias. See Bowling v. Commonwealth , 80 S.W.3d 405,411 (Ky. 2002).
A trial judge is not divested of his authority or discretion simply because
the proposed evidence could possibly pertain to bias. See Davenport , 177
S .W.3d at 768 . "So long as a reasonably complete picture of the witness'
veracity, bias and motivation is developed, the judge enjoys power and discretion
to set appropriate boundaries ." Maddox , 955 S .W.2d at 721 . Here, the jury was
presented with a reasonably complete picture of the witness's veracity and
motivation . In the present instance, the jury heard testimony that V. had been in
jail and charged with possession of marijuana and disorderly conduct on the
night of the alleged rape . As the Court of Appeals noted, any further evidence
upon this matter would likely have been inadmissible under KRE 403.
In Davenport , we held that the trial court acted within its discretion in
limiting cross-examination pertaining to impeachment evidence of probationary
status and pending misdemeanor charges to show bias. 177 S .W .3d at 767 .
This Court adopted the rationale of the United States Supreme Court in Van
10
Arsdall in determining that a trial judge may properly exercise discretion in
establishing appropriate boundaries in the development of a reasonably
complete picture of the witness' veracity, bias, and motivation. Id. at 770 (citing
to Van Arsdall , 475 U .S. at 679, 106 S .Ct. at 1435). "The trial court does not err
in limiting evidence of potential bias when there is a lack of credible evidence
supporting the inference ." Davenport , 177 S.W.3d at 769.
We find that the trial court, here, as in Davenport , was correct in its
decision that no practical connection existed between V.'s participation in the
diversion program and an insinuation of bias . No inference of bias could
reasonably arise from participating in a diversion program under these
circumstances . Thus, any decision otherwise implicating bias (because V. was in
diversion) would have been purely speculative . V. initiated prosecution of
Appellant long before her subsequent felony charge was filed and before the
guilty plea was entered into. The alleged rape occurred in December 2002 . V.
entered into a plea agreement in May 2004. V. picked Appellant out of a photo
lineup prior to her plea agreement, and her story remained unwavering . V.'s
subsequent placement into the diversion program did not suddenly render her
previous allegations a nullity . Moreover, although V. was placed into the
diversion program upon the Commonwealth's recommendation, once in
diversion, V. was subject to a court order with regard to the program's conditions.
Accordingly, we agree with the Court of Appeals determination that the
trial court properly excluded evidence of V.'s guilty plea to the felony charge and
her subsequent entry into the diversion program, as the evidence was simply not
probative of bias.
rii.
CONCLUSION
For the foregoing reasons, we reverse the Opinion of the Court of
Appeals, vacate Appellant's conviction and sentence, and remand the matter for
a new trial consistent herewith .
Lambert, C .J. ; Minton, Noble, and Schroder, JJ ., concur. Abramson, J .,
concurs in result only. Cunningham, J., concurs in result, however, believes the
victim's conviction was admissible . Even though it was diverted, it was still a
felony conviction. And the critical time for credibility impeachment is a trial, not at
time of the crime .
COUNSEL FOR APPELLANT :
Daniel T. Goyette
Louisville Metro Public Defender
200 Advocacy Plaza
719 West Jeffreson Street
Louisville, KY 40202
Frank WM Heft Jr.
200 Theatre Building
629 Fourth Avenue
Louisville, KY 40202
J. David Niehaus
Deputy Appellate Defender
Office of the Louisville Metro Defender
200 Advocacy Plaza
719 West Jeffreson Street
Louisville, KY 40202
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General of Kentucky
Courtney J . Hightower
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601
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