Williams v. Commonwealth

STEPHENSON, Justice,

dissenting.

My first objection to the majority opinion is that the case is reversed on the suspicion that Pettyjohn perjured himself when he denied a “deal” with the Commonwealth.

A further objection is that the majority opinion fashions a new evidentiary rule of law to find the trial court in error in denying to defense counsel the right to explore the circumstances of the judgment of conviction being vacated.

The majority opinion holds that a defendant has a right to expose the fact that a witness has criminal charges pending against him and thereby possesses a motive to lie in order to curry favorable treatment from the prosecution. This holding overrules, without saying so, a consistent line of cases in this Commonwealth that say pending criminal charges are not a proper subject of cross-examination for the purposes of impeachment. 19A Ky. Digest, Witnesses 345(1).

Discovery of this new right is based on Annunziato, an opinion of the United States District Court for the District of Connecticut. The holding in that opinion is apparently based on state law in Connecticut which recognizes the right to cross-examine a witness as to pending criminal charges. I object strongly to “discovering” this new “right” in this jurisdiction. Our present rule seems adequate and fair to me. Anyway, Annunziato turned primarily on Giglio grounds as stated in the opinion.

In my view, the trial court did not commit error during the Cotton hearing. The majority opinion recognized that the trial court was obviously thinking only of whether testimony relating to a vacated conviction was admissible for purposes of Cotton. Of course it was not; nor did defense counsel even pretend that he wished to cross-examine on the pending charge. The query, “Can I inquire of him if he knows why it was set aside or what grounds?” does not present such a question. It occurs to me that there was no objection to the ruling of the trial court, no attempt by defense counsel to explain that he wished to cross-examine Pettyjohn if a “deal” had been made, and no request to introduce the testimony into the record by avowal. It is apparent to me that defense counsel did not have a “deal” in mind at the time.

Defense counsel was not precluded from asking Pettyjohn if he had made a “deal” with the Commonwealth and did not do so. Davis and Greene can be distinguished on the factual situation. Davis involved a witness on probation and subject to being connected with the crime, and Greene involved allegations in an administrative hearing by individuals who did not testify or appear. I would disregard Annunziato. So much for the trial of the case.

Next, on motion for a new trial on the ground of discovery of evidence that Petty-john had been promised favorable treatment in exchange for his testimony against Charles and, therefore, possessed a motive to lie, I cannot see how the facts developed bn the hearing can justify the majority in applying Gigiio, a “perjury” case. There the prosecution admitted a deal; here Pet-tyjohn denied a deal. Commonwealth’s Attorney Zollinger denied a deal, and Petty-john explained the basis for the RCr 11.42 motion which resulted in the judgment being vacated. He stated he was suffering from emotional disturbance at the time of his guilty plea and asked that it be withdrawn and he be permitted to plead not guilty.

I am baffled as to how any of the evidence at the hearing can justify fitting this case within the “perjury” rule. As to the “discovery” of exculpatory evidence cases, an Agurs situation, it appears to me that the evidence developed at the hearing was not exculpatory. The letters written by Pettyjohn to his fiancee, about using his knowledge of the incident at Cooksy’s, buttress the truthfulness of Pettyjohn’s testimony and demonstrate that he did not fabricate his testimony as the result of a deal. If all this evidence were presented to a *148 jury, as I presume the majority opinion intends, I believe it would strengthen the case of the Commonwealth. In my view, if any case applies it is Agurs, and application of the Agurs rule would affirm the case. It occurs to me that on the hearing defense counsel had every opportunity to call other witnesses from the Commonwealth’s attorney’s office to clarify the situation. He chose to leave the question to speculation on the assertion of a “deal,” and I would not speculate in his favor. Even applying the Giglio rule, I would say that there is no reasonable likelihood that all of the “discovered evidence” could have affected the judgment of the jury under the evidence as a whole. The conclusion in the majority opinion that the Commonwealth failed to disclose a “deal” is unwarranted.

I respectfully dissent and would affirm the case.