REVIEW FROM COURT OF APPEALS 2015-CA-000737-MR DAVIESS
CIRCUIT COURT NO. 14-CR-00306.
COUNSEL FOR APPELLANT/ CROSS APPELLEE: Andy Be shear,
Attorney General of Kentucky, Thomas Allen Van De Rostyne,
Assistant Attorney General.
COUNSEL FOR APPELLEE/CROSS APPELLANT: Emily Holt Rhorer,
Assistant Public Advocate, Shannon Renee DuPree, Assistant
mistrial, Michael Padgett was tried and convicted by a
Daviess County jury for Assault, third degree. At his second
trial, he was also charged and convicted as a persistent
felony offender (PFO) in the first degree. The jury
recommended an enhanced sentence of ten years. The circuit
court sentenced Padgett accordingly. On direct appeal, the
Court of Appeals vacated his sentence, finding that the
second trial violated Padgett's rights against double
jeopardy. The Commonwealth moved this Court for discretionary
review, which we granted. After careful review of the record
and law, we now affirm the Court of Appeals.
February 9, 2014, Padgett was housed at the Daviess County
Detention Center (DCDC), in the B-pod. He was in a cell alone
and covered the window to his cell, so that on-duty deputies
could not see inside. He proceeded to kick the door, causing
a loud disturbance. Deputies ordered Padgett to remove the
obstruction in the window, but he refused. The officers
entered Padgett's cell, handcuffed him, and removed him
from the cell to place him in the "Emergency Restraint
Chair" (ERC). The ERC is a chair used to restrain
prisoners when they are potential dangers to themselves or
others; it binds them to their chair at several points
(waist, feet, arms) so that the prisoner is prohibited from
moving and causing potential damage. Chad Payne, then
Sergeant Payne, was the supervising officer on duty. He
responded to the scene as Padgett was being removed to the
ERC. During the melee, Padgett spit in Payne's face.
Payne ordered another officer to tase Padgett and Padgett was
then successfully restrained.
Commonwealth disclosed two reports to the defense regarding
Payne: (1) a report of excessive force with another inmate
and (2) a write-up and demotion for making false and
unauthorized statements. Payne was demoted from Sergeant to
Deputy as a result of the second report. The Commonwealth
moved, prior to trial, to exclude "the materials"
defense objected, arguing that the report of excessive force
was relevant to Padgett's claim of self-defense and that
both reports were admissible for impeachment purposes. On
September 22, 2014, the court heard arguments on the motion.
Relevantly, there was no written order from the court on this
motion. The hearing itself was an amalgamation of
multiple pre-trial issues including jury instructions and the
availability of self-protection as a defense to third-degree
assault; intertwined within these arguments was reference to
the evidence regarding Payne. The trial judge's order was
not abundantly clear; however, at that time, the judge
For impeachment purposes, that may be permitted but I'm
just telling you, I don't see it right now. And all I can
tell you is that on your motion, I can exclude it up to a
point but during trial, depending upon what the testimony is,
I very well might allow it. But I can't see it right now.
I don't see me allowing that evidence in.
would seem that what "may be permitted" were the
reports on Payne's disciplinary history. At the
parties' questioning, the court continued:
Oh, it might [be relevant] if what he did was improper. I
can't see it. I don't see it. But it might come off
of the witness stand that somehow this was improper. I
don't know. I don't hear-you haven't told me if-
right now, I'm not going to admit that ... evidence as we
sit here. You know. And I think there has to be something
more ... But I don't want to preclude that. At trial, you
never know what comes up half the time ...
I'll put it this way. If that evidence - that evidence,
that information um will not be permitted at trial unless and
the only thing that I think I can see as far as impeachment
is somehow during the testimony of Sergeant Payne, maybe
somebody else too, but at that point it becomes necessary - I
can't see it. I - I don't see it. But I don't
want to rule right now with finality, saying there's no -
under no situation or circumstances it's not coming in -
Right. I'm saying that, unless there is something during
the testimony or some evidence that somebody puts on that all
of a sudden makes that significant and relevant, it's not
going to be used at trial.
response to the court's statements, defense counsel
attempted to clarify further:
Judge, if I may address that - I think that you're
talking on the disciplinary report? The write-up? Okay. As to
the demotion -which is a separate issue, um, I did want to
mention that, of course, anytime there's instances of
dishonesty that you cross-examine a witness on, usually
it's about things that aren't necessarily directly
connected but you can always question somebody about their
veracity and truthfulness ...
parties then transitioned into discussion on self-protection
as a defense to third-degree assault and self-defense in
response to law enforcement.
proceeded to trial over the next two days. On the morning of
September 24, 2014,  the Commonwealth called Chad Payne to the
witness stand. The direct examination proceeded without
incident. The following exchange occurred during
So you were a supervising officer at the time of this
DC: And at the time of this incident, what was your rank?
DC: Are you a sergeant now?
Approach, your Honor.
What was the purpose of that?
DC: I was just inquiring about his rank. I'm not going
TJ: You better not go any ...