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Commonwealth v. Armstrong

Supreme Court of Kentucky

September 27, 2018

COMMONWEALTH OF KENTUCKY APPELLANT
v.
TERRANCE ARMSTRONG APPELLEE

          ON REVIEW FROM COURT OF APPEALS CASE NO. 2016-CA-000709 KENTON CIRCUIT COURT NO. 14-CR-00088

          COUNSEL FOR APPELLANT: Andy Beshear Attorney General of Kentucky Leilani K.M. Martin Assistant Attorney General.

          COUNSEL FOR APPELLEE: Kathleen Kallaher Schmidt Assistant Public Advocate.

          OPINION

          MINTON CHIEF JUSTICE.

         We accepted discretionary review of this criminal case to determine whether a witness's status as a parolee is admissible on cross-examination as impeachment pursuant to Kentucky Rule of Evidence (KRE) 611 despite the provision of KRE 609(b) that would render as presumptively too remote in time evidence of the more than thirty-year-old conviction upon which the witness's parole was based. We hold that even though evidence of a conviction may be prohibited to allow a general attack on the witness's credibility under KRE 609(b), evidence of the witness's lifetime parole status stemming from the conviction may still be admissible to allow a more specific attack on the witness's credibility by showing bias or motive to lie under the broader scope of KRE 611. That said, we further hold that the trial court's error was harmless beyond a reasonable doubt, and therefore reverse the Court of Appeals and reinstate the trial court's judgment.

         I. FACTS AND PROCEDURAL HISTORY.

         The police responded to a call reporting an assault with injuries and found Harry Stewart lying in the road, unconscious and severely injured. Stewart was transported to a hospital where he was ultimately diagnosed with a fractured jaw, a swollen and lacerated tongue, and swelling of the face. Stewart spent about a month in a coma and remained hospitalized for several months following the incident. He is no longer able to work or care for himself.

         After interviewing bystanders, police identified and arrested Terrence Armstrong for assaulting Stewart. The grand jury indicted Armstrong for second-degree assault, but the charges were later amended to first-degree assault. At trial, Armstrong admitted to the elements of assault by admitting to punching Stewart but disputed virtually every detail leading up to the assault. The jury found Armstrong guilty of assault in the fourth-degree, a misdemeanor.

         The defense put forth a self-defense theory, and Armstrong testified in his own defense that he and his two friends, all of whom were African-American, were headed to their friend Spencer's apartment when the incident began. Armstrong testified that on their walk, the friends stopped to pet a dog, but he continued to Spencer's apartment. After no one answered the door, Armstrong waited outside on the curb, listening to music. He testified that he noticed a few men standing beside him, and one of them said "get the fuck out of here, nigger, before we stab you up." He explained that the men approached him, and that one of them had a knife. He "punched at the same time, with no pause, one hand and then the other" at the one closest to him, and the man fell to the ground. The two other men backed up, spread out, and pulled out knives. Armstrong testified that they continued to say things like "I'm going to fuck you up" and "get out of here."

         The Commonwealth's key eyewitness, John Flynn, gave a different account of the events leading to the assault. Flynn testified that he grew up with Harry's brother, Richard Stewart, and that he had driven to Richard Stewart's apartment building-where Harry Stewart also lived-to go with Richard Stewart to a nearby shelter for supper. After supper, Flynn and Richard returned to the apartment building, and Harry came outside. Flynn testified that three men were talking outside of the apartment building when "a black fella and a woman" showed up. He said the man-Terrance Armstrong- then approached the three men and said, "we got a problem." Flynn testified that Richard Spencer backed up, reached into his front pocket, and said "111 cut your fucking heart out," but that Richard did not actually pull out a knife. Flynn testified that Armstrong hit Harry in the face, causing Harry to fall to the ground, and, when Armstrong got back up, hit Harry in the face with a full pop can by throwing it at him. According to Flynn, Armstrong then hit Harry in the face again, causing him to fall to the ground, and struck Harry with at least 15 more kicks and punches. Flynn himself denied having a knife or threatening anyone with a knife during the incident.

         During cross-examination of Flynn, defense counsel sought to impeach Flynn's credibility by asking him "Are you on parole for life for murdering a black man?" The Commonwealth objected and, after hearing arguments and reviewing case law, the trial court allowed the defense to ask whether Flynn was a convicted felon but held that KRE 609 disallowed any questions about the details of the crime or whether Flynn was on lifetime parole. The trial court admonished the jury regarding the defense counsel's question.

         On avowal, Flynn testified that, in 1983, he and three others had robbed two black victims and stabbed one of them to death. He testified that he was sentenced to life imprisonment and was currently out on lifetime parole. He admitted that threatening someone with a knife or possessing a knife would be a violation of his parole and would likely send him back to prison.

         The jury convicted Armstrong of fourth-degree assault and fixed punishment at twelve months' confinement and a $500 fine. On appeal of the resulting judgment to the Court of Appeals, Armstrong argued that the trial court erred in refusing to allow defense counsel to cross-examine Flynn about his lifetime parole status because that testimony was permissible evidence of Flynn's motive to lie about having threatened Armstrong with a knife. The Court of Appeals agreed, holding that evidence of Flynn's lifetime parole status was admissible under KRE 611, and that excluding such evidence amounted to a Confrontation Clause violation and an abuse of discretion. Accordingly, the Court of Appeals reversed the judgment. The Commonwealth sought discretionary review, which we granted.[1]

         II. ANALYSIS.

         The issue before this Court is whether the trial court violated Armstrong's Sixth and Fourteenth Amendment rights when it limited the scope of his cross-examination of Flynn. Armstrong argues both that he should have been permitted to ask Flynn whether he was on lifetime parole because his parole status would have provided a motive to testify in a manner helpful to the Commonwealth, and that it would have provided a motive to lie about threatening Armstrong with a knife or possessing a knife at the time of the incident.

         To determine whether Armstrong's constitutional rights have been violated, it is first necessary to give guidance on an issue that has caused some confusion in the courts below: whether a witness's lifetime parole status is admissible for impeachment purposes under KRE 611, despite evidence of the underlying crime itself being presumptively inadmissible as too remote in time under KRE 609(b).

         a. Evidence of Flynn's lifetime parole status is admissible for impeachment purposes under KRE 611, despite KRE 609 rendering details of the underlying crime inadmissible.

         KRE 611(b) defines the general scope of cross-examination. Under that rule, "a witness may be cross-examined on any matter relevant to any issue in the case, including credibility."[2] Therefore, KRE 611(b) embodies the "wide open" rule of cross-examination, "permitting the inquiry on cross to extend to the full limits of the dispute . . . unaffected by the content of the direct testimony of the witness under cross-examination."[3]

         Even without the broad scope of KRE 611, it is undisputed that the cross-examiner is allowed to discredit the witness's testimony "subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation."[4] Two important methods by which the impeaching party may discredit a witness's testimony on cross-examination are by introducing the fact that the witness has a prior felony conviction and by "revealing possible biases, prejudices, or ulterior motives of the witness as they may relate to issues ... in the case at hand."[5]

         By introducing evidence of a prior felony conviction, "the cross-examiner intends to afford the jury a basis to infer that the witness's character is such that he would be less likely than the average trustworthy citizen to be truthful in his testimony."[6] This type of evidence provides a general attack on the witness's credibility.[7] KRE 609 governs the use of criminal convictions to impeach the credibility of a witness. Under that rule, a criminal conviction can be used to impeach only if the crime underlying the conviction "was punishable by death or imprisonment for one . . . year or more"[8] and the conviction is not more than ten years old, unless the court determines the probative value of the conviction substantially outweighs its prejudicial effect.[9] Even still, the nature of the felony underlying the conviction cannot be disclosed unless the witness denies having been convicted.[10]

         While no specific provision of the Kentucky Rules of Evidence provide for impeachment of a witness by bias, prejudice, or ulterior motives, [11] we have always recognized that impeachment is permissible on cross-examination.[12] Exposing a witness's bias or motivation to testify is "a proper and important function of the constitutionally protected right of cross-examination."[13]

         In this case, the trial court prohibited Armstrong from asking a key prosecution witness whether he was currently on lifetime parole, finding that such evidence was inadmissible under KRE 609's prohibition of evidence of criminal convictions more than ten years old.[14] While KRE 609 undoubtedly bars for impeachment purposes evidence of the underlying crime itself-in this case, a murder conviction from 1983-we have previously held that the fact that a witness's credibility may not be impeached by proof of a prior conviction does not deny the defendant the right to show potential bias of a witness that a juror might infer from the fact that the witness was on parole for that conviction.[15] As argued in this case, evidence that a witness is on parole may, in some cases, support an inference that the witness was biased. In these cases, bias may result either because the witness's parole status creates a relationship with the prosecution that motivates that witness to testify in a manner favorable to the prosecution, or because it creates a penal interest in the subject matter of the testimony on the part of the witness.[16]

         Put more succinctly, while evidence of a conviction may be prohibited to launch a general attack on the witness's credibility under KRE 609, evidence of the witness's parole status stemming from the conviction may still be admissible as a more specific attack on the witness's credibility by showing bias or motive to lie under the broader scope of KRE 611.

         Thus, while the trial court may not have abused its discretion in excluding for impeachment purposes evidence of Flynn's 1983 murder conviction under KRE 609-as that crime was more than ten years old-it incorrectly determined that evidence of Flynn's lifetime parole status was also barred by that rule. Instead, Flynn's lifetime parole status could have been admitted as a more specific attack on his credibility-namely, to show potential bias of Flynn that a juror might infer from the fact that he was on lifetime parole. While the trial court could ultimately have barred defense counsel from asking Flynn about his lifetime parole status under its broad discretion to limit cross-examination under KRE 611, the point is that KRE 609 does not automatically bar such evidence.

         b. The trial court abused its discretion by prohibiting Armstrong from cross-examining a key ...


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