Released for Publication September 11, 2014.
ON REVIEW FROM COURT OF APPEALS. CASE NO. 2010-CA-001381-MR. JEFFERSON CIRCUIT COURT NOS. 08-CR-001114-002 AND 08-CR-003427.
COUNSEL FOR APPELLANT: Susan Jackson Balliet, Assistant Public Advocate.
COUNSEL FOR APPELLEE: Jack Conway, Attorney General of Kentucky, Todd Dryden Ferguson, Assistant Attorney General.
OPINION OF THE COURT BY CHIEF JUSTICE MINTON. All sitting. Abramson, Cunningham, Keller, Scott, and Venters, JJ., concur. Noble, J., dissents and would find the offer of proof sufficient.
MINTON, CHIEF JUSTICE.
After a circuit court jury convicted Eric Henderson of possession of a handgun by a convicted felon, he entered a conditional guilty plea to various other charges: first-degree wanton endangerment, tampering with physical evidence, possession of marijuana, and being a first-degree Persistent Felony Offender. He waived jury sentencing on all charges and accepted a sentence of twelve years' imprisonment.
Appealing to the Court of Appeals, Henderson challenged the trial court's exclusion of prior-bad-acts evidence and hearsay testimony. Regarding the prior-bad-acts evidence, the Court of Appeals--while acknowledging the trial court erred by excluding the evidence--concluded Henderson did not properly preserve the issue for appellate review under Kentucky Rules of Evidence (KRE) 103(a)(2). Specifically,
the Court of Appeals held it could not determine with any degree of certainty what the content of the excluded testimony would have been, making it impossible to assess the impact of the error. Going further, the Court of Appeals held Henderson similarly failed to preserve his challenge to the trial court's ruling excluding Harris's hearsay testimony but noted that, in any event, the excluded hearsay testimony would have been cumulative. The Court of Appeals affirmed the judgment.
We accepted discretionary review of this case primarily to consider whether, in light of the trial court's adverse evidentiary ruling excluding proposed testimony, Henderson's counsel's use of imprecise, general language satisfied KRE 103(a)(2)'s offer-of-proof requirement sufficiently to preserve this issue for appellate review. We affirm the decision of the Court of Appeals because we agree that counsel failed to make an adequate offer of proof.
I. FACTUAL AND PROCEDURAL BACKGROUND.
Henderson and a female friend, Monica Hatcher, went out for an evening at a nightclub. While standing at the jukebox, Henderson was approached from behind by Donnie Harris, a person from Henderson's past. According to Henderson, Harris was at the club with his wife, Tori Williams, and her cousin, Stefan Harbin.
Thinking he was being robbed, Henderson wheeled around and allegedly jabbed the muzzle of a handgun into Harris's stomach. Henderson testified there was no handgun--he simply jabbed two fingers into the suspected robber's stomach, hoping the robber would believe he had a gun. Henderson said he did not realize the supposed robber to be his erstwhile friend Harris until he turned around. Harris then asked Henderson to buy him a drink. A discussion ensued in which Henderson said something insulting about Williams.
Harris returned to his companions and described his encounter with Henderson. Williams became upset and proceeded--without Harris's knowledge-not only to tell the club owner about Henderson's conduct but also to phone the police. So, for the rest of the night, until the warring factions left the club, Harris's contingent and Henderson, with Hatcher, exchanged glares across the club. According to Henderson, he was concerned about Harbin's presence because they had a longstanding sour relationship.
Eventually, Henderson and Hatcher decided to leave. Before leaving, Henderson beckoned Harris to come to his table. The two talked briefly, leaving Henderson with the impression the two had made amends for the earlier interaction. Not long after Henderson and Hatcher left the club, the Harris group got up to leave. The time between the departures of the two groups was short enough that Henderson and Hatcher were still in Henderson's parked vehicle when the Harris group emerged from the club.
The groups began exchanging words with Williams seemingly bent on preventing Henderson from leaving before the police arrived. During the exchange, Henderson apologized for the disparaging remark he made earlier about Williams. Immediately before the police arrived,
Williams testified she saw Hatcher open the vehicle's passenger door and throw something. Williams could not see what was thrown, but she believed the item to be the gun Henderson had pulled on Harris inside the club. Harris testified he heard the sound of metal hitting concrete, and an eyewitness across the street testified to the same sound.
The scene inside Henderson's vehicle leading to the discarding of the firearm was perhaps even more dramatic than the scene outside. According to Hatcher's testimony, Henderson tossed a gun into her lap and told her to get rid of it. Hatcher, herself a convicted felon, refused Henderson's demand. The situation escalated as, according to Hatcher, Henderson brandished the ...