FROM WAYNE CIRCUIT COURT HONORABLE VERNON MINIARD, JR., JUDGE
ACTION NO. 14-CR-00034
FOR APPELLANT: Julia K. Pearson Frankfort, Kentucky.
FOR APPELLEE: Andy Beshear Attorney General of Kentucky Perry
T. Ryan Assistant Attorney General Frankfort, Kentucky.
BEFORE: CLAYTON, CHIEF JUDGE; JOHNSON  AND KRAMER, JUDGES.
Miller appeals the Wayne Circuit Court's judgment
convicting him of reckless homicide and sentencing him to
five years of imprisonment. Following a careful review of the
record, we affirm.
his then-wife, Brianna,  moved into a trailer at 685 Highway
1275 on or about April 19, 2014. Near midnight on April 20,
2014, Ian was sitting on his front porch when his new
neighbor, Gavin Thompson, approached and greeted him. Brianna
later joined them; Shana Cummings (Gavin's live-in
girlfriend) did so as well; and the four of them conversed.
During that time, the men consumed alcohol, and Ian
repeatedly pulled a gun that he carried with him out of his
pocket to show Gavin and Shana. At approximately 3 a.m., the
women were relaxing in the Millers' trailer while the men
were in Gavin's and Shana's trailer next door. Shana
heard gunshots, so she ran home. When she opened the door,
Gavin was lying on the floor, and a large, serrated kitchen
knife was underneath one of his arms. Ian was standing at
Gavin's feet and pointing the gun at Gavin's head.
Shana called 911. The authorities arrived shortly thereafter,
and Ian disarmed and surrendered himself.
the investigation that ensued, only Ian and Shana offered
direct accounts of the circumstances surrounding Gavin's
death, and much of the focus was upon the discrepancies
between their versions. Ian, for his part, did not contest
that he shot Gavin three times - once in the left lower
quadrant of his abdomen, once in his left upper back, and
again in his right mid back. But, he claimed to have done so
in self defense. He told investigators that after meeting on
his porch, the four of them had initially gone over to Gavin
and Shana's trailer to socialize. Once there, Gavin had
become increasingly aggressive toward him and the women; that
he had intentionally suggested the women relax at the trailer
he shared with Brianna in an effort to separate them from
Gavin; and that shortly after the women left, and immediately
before he shot Gavin, Gavin had charged at him with a kitchen
knife. Aside from that, Ian had no specific memories of the
shooting, what had led to it, or of what transpired
version of events differed significantly from Shana's
more detailed account. To summarize, Shana indicated that
Ian, not Gavin, had acted irrationally and aggressively. She
told investigators and later testified that while she and
Brianna were with Gavin and Ian, the two men never appeared
angry with one another, always appeared to be getting along,
and had mostly debated about music. However, she felt
something about Ian was "off," and it frightened
her that Ian repeatedly displayed his gun. She recalled Ian
making a statement to the effect that he had never gotten the
opportunity to kill anyone while he was in the military, that
he sounded disappointed when he had said it, and that he had
also said that he had had dreams of killing people. She also
recalled that at one point she attempted to remove herself
from Ian's presence by locking herself in the bathroom of
the trailer she shared with Gavin. She stated Ian broke into
the bathroom and tried to grab her and that she immediately
rushed out and back to where Gavin and Brianna were (the
kitchen and living room area of the trailer she and Gavin
shared). But, she did not tell anyone what had occurred.
stated that Ian had suggested she and Brianna go to the
Miller trailer and relax over there because she was feeling
sick, and because the men wanted to continue talking,
listening to music, and cooking in Gavin's and
Shana's trailer. She stated that she whispered to Gavin
that she thought they should just ask the Millers to leave
because she did not feel comfortable having someone with a
gun in their home. But, she went to the Miller trailer with
Brianna after Gavin assured her everything would be fine.
to Shana, she heard the gunshots ten or twenty minutes later,
ran home, opened the door, and discovered Gavin bleeding and
laying facedown on the floor. Ian was standing at Gavin's
feet, pointing a gun at Gavin's head. She tried pushing
Ian away, but Ian continued to point his gun at Gavin and
proceeded to point the gun at her face. Ultimately, she
either succeeded in pushing Ian outside or he left on his
own. Then, as she held the door shut and called 911, Ian
tried to pull the door open from the outside but abandoned
the effort shortly before the first police officer arrived on
an investigation, Ian was indicted on the charge of capital
murder. The primary issue at trial was whether Ian had shot
Gavin believing, reasonably or otherwise, that doing so was
necessary for self protection. Following a jury trial, Ian
was convicted of reckless homicide and sentenced to five
years of imprisonment.
appeal, Ian argues the trial court erred in either limiting
his ability to conduct cross examinations, or by excluding
what he believes was relevant, exculpatory evidence. As to
the nature of the evidence that the trial court excluded, it
generally falls into two categories: (1) impeachment evidence
against Shana; and (2) impeachment evidence against Detective
Billy Correll, the lead investigator who ultimately arrested
limitations that are placed upon cross examination are within
the circuit court's discretion. See Davenport v.
Commonwealth, 177 S.W.3d 763, 768 (Ky. 2005) (explaining
"[T]he Confrontation Clause guarantees an
opportunity for effective cross-examination, not
cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish." (internal
quotation marks and citation omitted; alteration in
original)). We review the trial court's decisions with
respect to the admission or exclusion of evidence under the
abuse of discretion standard. Commonwealth v.
English, 993 S.W.2d 941, 945 (Ky. 1999). With that in
mind, we proceed with our analysis.
Impeachment and cross examination of Shana Cummings
asserts, without citing any specific evidentiary rule, that
he should have been permitted to impeach Shana during cross
examination by demonstrating that during the time of his
trial she was on pretrial diversion for a felony conviction
and that two bench warrants were pending against her. We
begin with what Ian argues was the trial court's
erroneous refusal to allow him to impeach Shana with her
"felony conviction," and qualify his argument by
noting he was able to imply during his trial that Shana had
been charged with a felony. On cross examination,
the following exchange between his counsel and Shana took
IAN'S COUNSEL: Miss Cummings, as you sit here today
testifying, you are a convicted felon, aren't you?
SHANA: No, not convicted.
aside, evidence of a witness's felony conviction is an
accepted form of impeachment. See Kentucky Rule of
Evidence (KRE) 609(a). This is so - as Ian notes - even if a
witness is participating in pretrial diversion that could
ultimately negate the felony conviction. See Futrell
v. Commonwealth, 471 S.W.3d 258, 286-87 (Ky. 2015);
cf. Holt v. Commonwealth, 250 S.W.3d 647,
653 (Ky. 2008) (explaining a witness's "mere
participation in a pretrial diversion program, absent any
further showing upon which to infer bias, is an insufficient
basis for impeachment"); Farmer v.
Commonwealth, 309 S.W.3d 266, 272-73 (Ky. App. 2009)
(explaining that upon the completion of a felony
diversion program, a witness is no longer considered
convicted of a felony for purposes of KRE 609(a)).
according to the appellate record, Shana was not
convicted of a felony nor has she ever been on pretrial
diversion for any felony charge. Rather, the avowal exhibits
Ian tendered merely demonstrate the following: (1) on July 2,
2013, Shana filed a motion in a criminal proceeding in
Anderson Circuit Court requesting to be placed on
pretrial diversion for a felony charge; (2) she offered a
plea of guilty to the felony charge, but her plea was
conditioned upon the Anderson Circuit Court granting
her motion; and (3) the Anderson Circuit Court entered
no order granting her motion. Indeed, Shana herself testified
through avowal that she has never participated in a pretrial
diversion program relating to her felony charge.
speak only through written orders entered upon the official
record. Kindred Nursing Ctr. Ltd. P'ship v.
Sloan, 329 S.W.3d 347, 349 (Ky. App. 2010). Here, while
Ian demonstrated Shana had been charged with a
felony, he offered no proof, much less a written court order,
indicating she had been convicted of one or
otherwise indicating how her criminal matter had been
resolved, if at all. As the trial court correctly explained
below, that was insufficient for impeachment purposes under
the trial court's exclusion of the two bench warrants
pending against Shana at the time of Ian's trial, we
likewise find no error. Ian's argument in this vein
implicates KRE 608(b), which allows inquiry into a
witness's specific instances of past conduct for purposes
of impeachment, not extrinsic evidence. Thus, to the
extent Ian is arguing the jury should have been permitted to
consider the several court records he provided the trial
court through avowal, relating to Shana's warrants and
apparently pending felony charge, he is mistaken. Nor, for
that matter, does Ian argue the probative value of that
extrinsic evidence was so compelling or so crucial to his
defense that the trial court should have exempted those
records from the ordinary rules of evidence.
if Ian's argument is focused upon the scope of
inquiry he was permitted by the trial court
regarding Shana's specific instances of conduct, we
reject the notion that any reversible error occurred. KRE
608(b) only allows for inquiry into a witness's specific
instances of conduct if the conduct in question is
"probative of truthfulness or untruthfulness[.]" A
witness's failure to appear in court is not probative of
a witness's truthfulness. See, e.g., Slone v.
Commonwealth, 382 S.W.3d 851, 857 (Ky. 2012). And of the
two warrants, the first relates to Shana's failure to
appear in Anderson Circuit Court for sentencing in her felony
matter. The second was issued due to Shana's failure to
appear in Anderson District Court for monitoring that related
to her probation for misdemeanor theft by unlawful
also insinuates the outstanding warrants could have given
Shana an incentive to lie to curry favor with the
prosecution. He specifically draws attention to the fact that
the prosecution was made aware of Shana's outstanding
warrants approximately three months prior to his trial (after
his counsel informed the prosecution about her warrants).
as the Kentucky Supreme Court explained in
Davenport, 177 S.W.3d at 769,
[R]eviewing courts have found reversible error when the facts
clearly support an inference that the witness was biased, and
when the potential for bias exceeds mere speculation. In
[Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct.
1431, 89 L.Ed.2d 674 (1986)], the Confrontation Clause
violation occurred when the trial court excluded evidence
that a key prosecution witness's criminal charge had been
dismissed after he agreed to talk with investigators about
the murder, an agreement which the witness readily
acknowledged. 475 U.S. at 676, 106 S.Ct. at 1432. In
[Spears v. Commonwealth, 558 S.W.2d 641, 642 (Ky.
App. 1977)], error occurred when the trial court excluded
evidence that the principal prosecution witness had an
indictment pending at the time of trial in the same county.
Id. In Williams v. Commonwealth, this Court
determined that the trial court should have permitted defense
counsel to question a key witness about the possibility of a
"deal" with the Commonwealth. 569 S.W.2d 139 (Ky.
1978). In Williams, though, evidence supporting the
Inference of bias was strong: the key witness refused to
testify at the defendant's first trial unless he was
released from jail, he was in fact thereafter released, the
conviction was later vacated, and he admittedly refused to
incriminate the defendant until after he had spoken with a
government agent. Cf. Nunn v. Commonwealth, 896
S.W.2d 911 (Ky. 1995) (finding no violation of
appellant's confrontation rights where the trial court
prohibited cross-examination of a key witness regarding
pending charges against him, particularly in light of the
extensive cross-examination that was permitted and the
potential for juror confusion).
The trial court does not err in limiting evidence of
potential bias when there is a lack of credible evidence
supporting the inference. In Bowling v.
Commonwealth, a factually analogous case, we concluded
that the mere fact of a witness's pending indictments in
an adjacent county were insufficient to infer that the
witness was motivated to testify in an effort to curry favor
with the Commonwealth's Attorney. 80 S.W.3d 405, 411 (Ky.
2002). The Court in Bowling was persuaded by the
fact that the prosecuting attorney, in reality, had no
jurisdiction to grant any leniency to the witness with
respect to charges in another county. "Since there was
no connection between [the prosecuting attorney] and the case
against [the witness] in Fayette County, the pending Fayette
County indictments were not admissible." Id.
The Court also took note that Bowling offered no evidence
that supported his claim that the witness had been offered
leniency to testify.
the circumstances surrounding Shana's outstanding bench
warrants were analogous to the circumstances surrounding the
witness's indictments in Bowling. Shana's
warrants originated in a different county (Anderson). The
Commonwealth's Attorney prosecuting this matter had no
jurisdiction to grant Shana anything with respect to those
warrants, much less leniency in relation to those
proceedings. Shana was offered nothing from the
Commonwealth's Attorney in exchange for her testimony - a
point the Commonwealth's Attorney verified to the trial
court; Ian's counsel conceded while taking Shana's
avowal testimony; and which Ian produced nothing aside from
his own speculation to refute. Indeed, during her avowal
testimony Shana stated she was unaware of the warrants.
Accordingly, the trial court acted well within its purview in
excluding this evidence. See Bowling, 80 S.W.3d at
411. We find no error.
Impeachment and cross examination of Detective Billy
second category of evidence Ian asserts the trial court
wrongfully excluded is what he characterizes as impeachment
evidence against Kentucky State Police Detective Billy
Correll, the lead investigator who ultimately arrested him.
Ian takes issue with the scope of inquiry he was allowed or
believes he was allowed during cross examination to
demonstrate, in the words of his brief, that "Correll
didn't do the work necessary to make a decision as to
whether Gavin was a good neighbor or a crazy neighbor."
However, it is unclear from his argument and the context of
what occurred at trial if Ian is focusing upon his ability to
ask: (1) whether Correll received Gavin's
criminal or psychological records prior to arresting him; (2)
whether Correll reviewed any of Gavin's criminal
or psychological records prior to arresting him; or (3) for
Correll's opinion, based upon those records, of
Gavin's likely mental condition before Gavin was shot -
in other words whether, if he had reviewed those records,
Correll would have found Ian's version of events
(i.e., that Gavin was the first aggressor) more
credible or believable.
explain, portions of Correll's pre-arrest interview with
Ian were introduced as evidence at trial and at one point
during the interview, while discussing Ian's claim that
Gavin had charged at him with a knife, the following exchange
CORRELL: What about the other ...