expressly applying Van Arsdall on the bias exploration topic and finding that “[t]he trial court does not err in limiting evidence of potential bias when there is a lack of credible evidence supporting the inference[]”
How later courts described this case
- expressly applying Van Arsdall on the bias exploration topic and finding that “[t]he trial court does not err in limiting evidence of potential bias when there is a lack of credible evidence supporting the inference[]”
- evidence of witness’s ordinary debts, such as car loan, not admissible as proof of motive for murder/theft where no other evidence suggested witness’s involvement, and debt theory was thus speculative
- “[Reviewing 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.”
- absent contrary showing, charges outside venue county do not support inference of bias in favor of prosecution within venue county
Written by the judges who cited it.
The opinion
Dissenting opinion by
Justice ROACH.
The trial court erred by failing to allow Appellant (i) to cross-examine Chris Davenport about his probation status and pending charges in other counties, and (ii) to cross-examine Emma Ross about her debts. The first failure was a Confrontation Clause violation, the second a Due Process violation, and these errors are sufficient to require reversal of Appellant’s conviction.
I. CROSS-EXAMINATION OF CHRIS DAVENPORT
The United States Supreme Court has explained that the “primary interest secured by [the Confrontation Clause of the United States Constitution] is the right of cross-examination.” Douglas v. Alabama, 380 U.S. 415, 418 , 85 S.Ct. 1074, 1076 , 13 L.Ed.2d 934 (1965). In describing the importance of cross-examination as a means of questioning a witness’s credibility, the Court has explained:
A more particular attack on the witness’ credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is always relevant as discrediting the witness and affecting the weight of his testimony. We have recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.
Davis v. Alaska, 415 U.S. 308, 316-17 , 94 S.Ct. 1105, 1110 , 39 L.Ed.2d 347 (citations, internal quotation marks, and footnote omitted). In Davis , the Court specifically concluded that the trial court’s refusal to allow the defendant to reveal that a key prosecution witness (who provided the crucial link between the defendant and the crime) was on probation denied the defendant “the right of effective cross-examination which would be constitutional error of the first magnitude .... ” Id. at 318 , 94 S.Ct. at 1111 (internal quotations and citations omitted).
Similarly, when the trial court prevented Appellant from asking Chris Davenport whether he was on probation from a Pulaski County conviction and in jail on misdemeanor charges in McCreary County, the trial court prevented Appellant from engaging in effective cross-examination. As Professor Lawson has pointed out: “No doubt exists about the admissibility of evidence bearing on what is commonly referred to as the ‘bias’ of the witnesses.” Robert G. Lawson, The Kentucky Evidence Law Handbook § 4.15, at 183 (3d ed.1993). Although “[t]here is no explicit treatment of impeachment by bias in the Kentucky Rules of Evidence,” the “[a]d-missibility of such evidence ... is governed by the provisions on relevancy (Rules 401 and 402).” Id. Professor Lawson explicitly mentions that this Court has determined that defendants have the right to introduce evidence “that a witness has *776 charges pending and is thus motivated to color testimony to please authorities” and “that a witness is on probation or parole under active supervision.” Id. at 185. Appellant’s failure to offer specific evidence that Chris Davenport had “made a deal” or had been guaranteed leniency in his other cases should go to the weight of the evidence as to bias, not its admissibility. The fact of the matter is that the jury can infer from testimony about a witness’s other charges and probation status that the witness might be testifying for the prosecution in order to curry favor, even if that favor were only to have the prosecutor speak favorably to another prosecutor on the witness’s behalf. Consequently, I believe the trial court abused its discretion in limiting the cross-examination of Chris Davenport.
However, the majority is correct that finding the trial court abused its discretion does not end the inquiry. Violations of the Confrontation Clause, including the specific type alleged here, are subject to review for harmless error. Delaware v. Van Arsdall, 475 U.S. 673 , 106 S.Ct. 1431 , 89 L.Ed.2d 674 (1986). The United States Supreme Court described the harmless error analysis as follows:
Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.
Id. at 684 , 106 S.Ct at 1438 .
In Davis , the witness provided the crucial link between the criminal activity and the defendant; Chris Davenport played a similar role in Appellant’s trial. Chris Davenport’s testimony was not cumulative. He gave the only direct testimony-placing Appellant at the scene, 1 and he gave the only testimony that Appellant entered the house, that it sounded like a fight broke out, and that a man then screamed, “Please don’t kill me.” Overall, the prosecution’s case against Appellant hinged on two key elements: Chris Davenport’s testimony and evidence that the cane found beside Perkins’s body belonged to Appellant. Chris Davenport’s testimony was clearly of fundamental importance to the Commonwealth’s case.
The trial court’s refusal to allow Appellant to develop evidence of Chris Davenport’s possibly biased testimony may have resulted in a misinformed judgment by the jury as to the proper weight to afford that evidence. More importantly, given the crucial nature of Chris Davenport’s testimony, evidence that he may have had an ulterior motive for testifying could have seriously affected the jury’s determination of Appellant’s guilt. Thus, I cannot say that the trial court’s refusal to admit this evidence of Chris Davenport’s bias was harmless error.
II. CROSS-EXAMINATION OF EMMA ROSS
I also believe that the majority is incorrect in concluding there was no error in limiting Appellant’s cross-examination of Emma Ross.
*777 The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State’s accusations. This right, often termed the right to present a defense is firmly ingrained in Kentucky jurisprudence, and has been recognized repeatedly by the United States Supreme Court.
Beaty v. Commonwealth, 125 S.W.3d 196, 206 (Ky.2003) (internal citations and quotation marks omitted).
On cross-examination, Appellant wanted to establish that Ross had a motive for killing Perkins. Another witness testified that Ross, who was involved with another man, was Perkins’s girlfriend and that she knew that Perkins carried large amounts of cash. The jury had also heard testimony from which it could infer that Ross was at Perkins’s residence for two hours before she called for help. Appellant wanted to reveal that Ross owed at least two debts, one which was substantial and for which she had been sued and another for which she had not been sued.
By denying Appellant the right to introduce evidence that tended to show that Ross had a motive to kill Perkins, the trial court essentially short-circuited Appellant’s defense that an alleged alternative perpetrator, i.e., “aaltperp,” committed the murder. See Beaty, 125 S.W.3d at 207 . This Court, drawing on the wisdom of Wigmore, recently said that:
“[I]f the evidence [that the crime was committed by someone else] is in truth calculated to cause the jury to doubt, the court should not attempt to decide for the jury that this doubt is purely speculative and fantastic but should afford the accused every opportunity to create that doubt.”
Id. at 209 (alterations in original) (quoting 1A John Henry Wigmore, Evidence in Trials at Common Law § 139 (Tiller’s rev. 1983)).
Having already heard evidence that Ross was dating two men at the same time, that Ross was at Perkins’s residence for two hours before calling for help, and that Ross knew that Perkins typically kept large amounts of cash on hand, the jury would not have been misled by additional evidence that Ross owed at least one substantial debt and had been sued over it. And given that context, I cannot conclude that Appellant’s theory was “purely speculative and fantastic.” But without this last item of evidence of Ross’s potential motive, Appellant’s defense was incomplete and his right to due process of law was denied. “It has been uniformly held by this court that one accused of a crime may introduce evidence tending to prove that the crime was committed by another,” Harvey v. Commonwealth, 266 Ky. 789 , 100 S.W.2d 829, 830 (1937), especially whei'e a motive is coupled with an opportunity to commit the crime. Beaty, 125 S.W.3d at 208 (“In a homicide case, a defendant is not entitled to parade before the jury every person who bore some dislike for the victim without showing that the ‘aaltperps’ at least had an opportunity to commit the murder.”). Here, Appellant had evidence of that crucial congruence of motive and opportunity, but the trial court refused to admit it. I believe this was error.
III. CONCLUSION
Clearly, the combined impact of denying Appellant the right to cross-examine Chris Davenport and Emma Ross cannot be said to be harmless beyond a reasonable doubt. Therefore, I respectfully dissent.
LAMBERT, C.J. and COOPER, J„ join this dissenting opinion.