Opinion
2023-SC-0169-MR
08-22-2024
JOHN P. MEADOWS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
COUNSEL FOR APPELLANT: Erin Hoffman Yang Assistant Public Advocate COUNSEL FOR APPELLEE: Russell M. Coleman Attorney General of Kentucky Kristin Leigh Conder Assistant Attorney General
NOT TO BE PUBLISHED
ON APPEAL FROM WHITLEY CIRCUIT COURT HONORABLE PAUL K. WINCHESTER, JUDGE NO. 21-CR-00103
COUNSEL FOR APPELLANT:
Erin Hoffman Yang
Assistant Public Advocate
COUNSEL FOR APPELLEE:
Russell M. Coleman
Attorney General of Kentucky
Kristin Leigh Conder
Assistant Attorney General
MEMORANDUM OPINION John P. Meadows was convicted of murder and tampering with physical evidence by a Whitley Circuit Court jury following the death of Donna Lay. Meadows received a life sentence for murder and five years for tampering, with the time for tampering running concurrent to the life sentence. Meadows appeals to this Court as a matter of right. Meadows raises two issues on appeal: (1) inadmissible character evidence denied him a fair trial; and (2) he suffered undue prejudice when the Commonwealth improperly cross-examined a witness. Finding no reversible error, we affirm the Whitley Circuit Court.
KY.CONST. § 110(2)(b).
I. FACTUAL AND PROCEDURAL BACKGROUND
In 2020, Meadows moved into an apartment with Lay at the Taylor Apartments. The two had been dating prior to moving in together and both suffered from alcoholism. Meadows moved in with Lay after living with his brother, Deion Meadows, who did not allow alcohol in his home. Following Meadows' move, Deion noticed Meadows became withdrawn from family and missed important gatherings. Deion believed this was due to Meadows' alcoholism being refueled by living with Lay.
On January 14, 2021, Lisa Siler, a Little Caesars Pizza employee, found Lay's wallet, along with various personal items, at the bottom of the Little Caesars dumpster. Siler informed her boss, who alerted the police. Officer Cody Harrell went to Lay's address but was unable to contact anyone inside. A sign on the door mentioned COVID-19, but Harrell could not remember more details. Additional attempts to reach someone inside Lay's apartment were unsuccessful.
On January 17, 2021, Meadows' niece requested the Williamsburg Police Department perform a welfare check on Meadows. After firefighters broke down the apartment door, they found the apartment in complete disarray, with alcohol and pill bottles littering the dwelling. Meadows was found in bed suffering from significant head trauma and face swelling, which he claimed resulted from falling while intoxicated. Meadows' family was also at the apartment during this wellness check. Deion was aware Meadows owned a gun and feared he was suicidal, so Deion confiscated the gun from the apartment.
On January 27, 2021, Deidre Partin, Lay's neighbor, reported Lay missing. Officer Wayne Byrd visited Lay's apartment and spoke to Meadows, who said he did not know Lay's whereabouts and had not seen Lay since January 7. Following this interaction, Byrd obtained a search warrant for Lay's apartment. Byrd said the apartment smelled like decomposing flesh and utilized a trained cadaver dog to search the apartment. The dog alerted on a trash can inside a hallway closet, which was opened to reveal Lay's body inside. Meadows denied any knowledge of Lay's body inside the trash can and said he thought Lay had left to live with family. Meadows speculated that someone must have come to the apartment and shot Lay while he was suffering from his injuries. Meadows was charged with murder and tampering with physical evidence. When Deion learned about Lay's death, he handed Meadows's confiscated firearm over to the Williamsburg Police Department.
An autopsy showed Lay had died from a bullet wound a few weeks earlier. The medical examiner determined the gunshot entered her head at a downward angle, and he did not observe any evidence that showed Lay had been in a fight or struggle. At trial, Meadows testified that he shot Lay in selfdefense. Meadows claimed he killed Lay in a struggle over a firearm after she had accused him of having various affairs. Meadows testified that Lay, who he claimed would forego her antipsychotic medication regularly, told him to leave the apartment but then pulled a gun on him as he began packing. Meadows stated he then struggled with Lay over the firearm and shot her to protect himself. Meadows acknowledged he had lied to police following his arrest, which he said was due to fear and intoxication at the time. Meadows also claimed he was a domestic violence victim and had been embarrassed to admit he had been abused by a woman. The jury found Meadows guilty of murder and tampering with physical evidence. Meadows now appeals his conviction to this Court as a matter of right.
II. ANALYSIS
Meadows raises two errors on appeal: (1) he was denied a fair trial because the Commonwealth elicited testimony about his Ashley Madison account and online searches for escorts; (2) and he suffered undue prejudice during the Commonwealth's cross examination of Stephanie Taylor.
A. Commonwealth's cross examination concerning Meadows' Ashley Madison account and online escort searches did not deny Meadows a fair trial.
Meadows asserts the Commonwealth's cross examination questioning about his Ashley Madison account and his online searches for escorts violated KRE 404(b). Meadows claims this violation prejudiced a substantial number of jurors against him and denied him a fair trial. The Commonwealth argues this issue falls outside of KRE 404(b) and was made relevant when Meadows testified about Lay's accusations that he was cheating on her. This Court finds the testimony was proper for a reason not recognized by either party: Meadows opened the door to the questioning under KRE 608 and was not denied a fair trial by the inquiry. Meadows takes issue with following testimony:
Kentucky Rules of Evidence.
Commonwealth: She had confronted you about cheating on her.
Meadows: Yes, Sir.
Commonwealth: That of course had a little merit to it, didn't it?
Meadows: No, sir, I wasn't cheating.
Commonwealth: Think she ever got into your phone and saw your profile on Ashleymadison.com?
Meadows: No sir, she never got into my phone; it was password protected.
Commonwealth: Oh, okay. So, she didn't know you were cheating on her.
Meadows: I didn't date anyone off of Madison during that time.
Commonwealth: What about the escorts you looked up on your google search history, do you think she found that?
Meadows: All those were in Indiana.
Commonwealth: When you said you had business in Indiana, it was actually going to see prostitutes, is that correct?
Meadows: No sir, she actually went with me on the trip, we went up to clean my...
Defense Counsel: Objection.
The admittance of the evidence was a result of Meadows's own testimony. This Court previously noted that a defendant's decision to testify does not bar him from being questioned about unsavory facts or evidence, especially those that pertain to the ongoing case. This rule was long ago recited in McDonald v. Commonwealth:
The appellant offered himself as a witness, and, being examined, his general character for truth and veracity was impeached by the
state. The undoubted and general rule in criminal practice is that the state cannot place the character of the accused in issue, unless the latter shall have first attempted to establish his character by proof. This rule is founded in sound policy, and prevents those charged with crime from being punished because of their bad character, rather than on the testimony adduced as to their guilt of the particular offense charged. Nor has this rule been repealed, expressly or by implication, by reason of the statute permitting the accused to testify on his own behalf. When he comes before the jury as a witness, although charged with the offense, he subjects himself to that character of examination that can be made of any other witness; and his inclination to tell the truth, or to swear falsely, may be shown by the commonwealth in the usual mode of impeaching the general character of a witness for truth and veracity.86 Ky. 10, 13, 4 S.W. 687, 688 (1887).
More recently, we have reiterated,
When a defendant elects to testify at trial, "he subjects himself to that character of examination that can be made of any other witness; and his inclination to tell the truth, or to swear falsely, may be shown by the Commonwealth in the usual mode of impeaching the general character of a witness for truth and veracity." Scott v. Commonwealth, 685 S.W.2d 184, 186 (Ky. 1984) (quoting McDonald v. Commonwealth, 86 Ky. 10, 4 S.W. 687, 688 (1887)). As such . . . Rucker opened the door to the Commonwealth exploring the veracity of his claims and impeaching his credibility. In short, on those facts there was no error in the admission of Rucker's statements made prior to Farris's death.Rucker v. Commonwealth, 521 S.W.3d 562, 571 (Ky. 2017). This principal is enshrined in KRE 608 which provides,
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility . . . may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness: (1) concerning the witness' character for truthfulness or untruthfulness[.]KRE 608(b).
Here, Meadows opened the door to the Commonwealth inquiring about the truthfulness of the accusations surrounding Meadows possible affairs. Meadows asserted he acted in self-defense. He claimed he killed Lay in a struggle over a firearm after she had accused him of having various affairs. Therefore, he opened the door to the Commonwealth's cross examination about the affairs because his theory of self-defense is based in part around Lay's affair accusations. The Commonwealth was entitled to ask about what led up to the argument about an affair, the subsequent struggle, and Meadows's claims of self-defense. Evidence about the surrounding accusations of the affair was probative in this case because the defendant's theory of self-defense rested on Lay accusing Meadows of having an affair before trying to shoot him.
The Commonwealth's cross examination into the specific instances of Meadows's conduct was appropriate to attack his credibility for truthfulness because he denied cheating on Lay. Meadows's decision to take the stand and testify to acting in self-defense after Lay confronted him about various affairs opened the door for the Commonwealth to attack his credibility for truthfulness. Meadows denied having an affair and the Commonwealth presented specific instances that attacked his truthfulness in that assertion. The Commonwealth's cross examination was proper under KRE 608. No error occurred.
B. No error from Commonwealth's cross examination of defense witness, Stephanie Taylor.
Meadows next argues he has suffered undue prejudice from several instances of improper conduct by the Commonwealth during its cross examination of defense witness, Stephanie Taylor. The alleged improper conduct occurred during the following testimony:
Commonwealth: You went by his apartment on January 19th with Sam Harris, correct?
Taylor: Yes.
Commonwealth: You asked him what happened. And he actually said he hit himself, did he not?
Taylor: No.
Commonwealth: You don't remember telling the police that?
Taylor: Uh-uh.
Commonwealth: So, if an officer takes the stand and says that you told them during the course of an interview on February 1st that the defendant indicated to you that he hit himself, that they wouldn't be telling the truth?
Taylor: I can't remember that.
Commonwealth: OK, so I'm going to redirect. Can you not remember?
Taylor: I just can't remember.
Commonwealth: You don't know?
Taylor: Mm-mm.
Commonwealth: Do you know what the penalty for perjury is?
Taylor: Yes.
Commonwealth: OK. So, I'll ask you one more time. Do you recall telling the police that the defendant indicated he got his injuries by hitting himself?
Taylor: Yes.
Commonwealth: He did say that?
Taylor: Yes.
First, Meadows contends that the trial court violated Moss v. Commonwealth, 949 S.W.2d 579 (Ky. 1997), by asking Taylor to comment upon the truthfulness of a police officer. Second, Meadows argues that the Commonwealth failed to lay a proper foundation while trying to impeach Taylor. Lastly, Meadows argues that the Commonwealth committed prosecutorial misconduct after the prosecutor threatened Taylor with perjury. Meadows failed to object to the offensive questioning at trial and now asks this Court for palpable error review under RCr 10.26.
Kentucky Rules of Criminal Procedure.
Under RCr 10.26, palpable error may be reviewed by a court upon a motion for a new trial or on appeal if the error would substantially affect the rights of a party. According to the rule, "an error is reversible only if a manifest injustice has resulted from the error. That means that if, upon consideration of the whole case, a substantial possibility does not exist that the result would have been different, the error will be deemed nonprejudicial." Graves v. Commonwealth, 17 S.W.3d 858, 864 (Ky. 2000). If an issue were to rise to the level of palpable error, it must be so serious that it affects the overall fairness of the proceedings. Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006). Additionally, a palpable error must "easily perceptible, plain, obvious and readily noticeable." Id. at 349. When determining palpable error, the court must consider whether there is a substantial possibility that the result of the case would have been different without the error. Id.
1. No palpable error arose from the violation of Moss .
During the Commonwealth's cross examination of Taylor, the prosecutor asked Taylor about her statement to the police regarding how Meadows told her he received his facial injuries during a conversation a few days after the murder. Meadows argues that the Commonwealth's questions violated Moss because the Commonwealth asked questions that made Taylor address the truth of another witness's statement.
In Moss, this Court held that "[a] witness should not be required to characterize the testimony of another witness, particularly a well-respected police officer, as lying." Moss, 949 S.W.2d at 583. The Court reasoned that counsel should be able to show inconsistency in statements without badgering the witness into giving the testimony, and ultimately, "[a] witness's opinion about the truth of the testimony of another witness is not permitted. Neither expert nor lay witnesses may testify that another witness or a defendant is lying or faking. That determination is within the exclusive province of the jury." Id. (quoting State v. James, 557 A.2d 471, 473 (R.I. 1989)). Similarly, in Howard v. Commonwealth, we held that when an attorney on cross-examination "asked [] about certain testimony, and then asked [] about what other witnesses had said concerning the same thing" that questioning was improper. 12 S.W.2d 324, 329 (1928). Howard "has long been the standard for proper cross-examination." Moss, 949 S.W.2d at 583.
When the Commonwealth asked Taylor "if an officer takes the stand and says that you told them...the defendant indicated to you that he hit himself, that they wouldn't be telling the truth?", the questioning violated Moss. The Commonwealth asked Taylor to comment on the truthfulness of another potential witness who was, as in Moss, a police officer. The question was improper even though the officer ultimately did not testify as to what Taylor said to him. See Fortner v. Commonwealth, 2017-CA-001718-MR, 2019 WL 2484452 at *3 (Ky. App. June 14, 2019) (finding a Moss violation where a witness was asked to comment on the truthfulness of an officer who did not testify at trial). Accordingly, we agree with Meadows that the line of questioning was improper.
However, the Moss violation did not amount to palpable error. We have never found a Moss violation to be palpable error. See Williams v. Commonwealth, 2020-CA-1620-MR, 2023 WL 128534 at *3 (Ky. App. Jan. 6, 2023) (observing that as of 2023 this Court has never found palpable error for a Moss violation). The situation presented here will not alter that precedent. The questioning put to Taylor was a far cry from the badgering in Moss. The offending exchange was a singular, isolated incident and when Taylor demurred answering the question, the prosecutor moved on. Further, all parties appear to agree that Taylor's testimony was of little relevance to the case. Considering the limited nature of the question, the questionable relevance of the testimony, and the weight of the other evidence against Meadows, no palpable error arose from the exchange.
2. The Commonwealth laid a sufficient foundation.
Meadows argues that the Commonwealth failed to lay a proper foundation for impeachment under KRE 801A(a)(1), which states a prior inconsistent statement can be brought in with a foundation pursuant to KRE 613(a). Meadows argues the Commonwealth failed to follow the proper procedure set in KRE 613(a) by failing to give Taylor a fair opportunity to explain her prior statements by providing full reference to the "time, place, and persons present" when she spoke with the police.
KRE 613(a) provides, in relevant part, "[b]efore other evidence can be offered of the witness having made at another time a different statement, he must be inquired of concerning it, with the circumstances of time, place, and persons present, as correctly as the examining party can present them[.]" Meadows believes the Commonwealth was required to specifically identify the officer to whom Taylor spoke and provide a year in which the interview took place.
We require strict compliance with the foundation requirements of KRE 613(a), and we hold those requirements were met here. E.g., Noel v. Commonwealth, 76 S.W.3d 923, 930 (Ky. 2002). The question put to Taylor identified all the necessary information she would reasonably need to recall her prior statement. The Commonwealth asked her if she recalled speaking to a police officer on February 1st and discussing how Meadows injured his face. The likelihood of Taylor having had that conversation with multiple officers on multiple February 1sts is remotes, thus the question was sufficiently "calculated to refresh h[er] memory." Id. (quoting Cole v. State, 65 Tenn. 239, 241 (1873)).
3. The Commonwealth did not commit prosecutorial misconduct.
Finally, Meadows argues prosecutorial misconduct occurred after a perjury warning was given by the Commonwealth to Taylor during being crossexamination. Meadows claims that when the prosecutor asked, "Do you know what the penalty for perjury is?" it posed an "unnecessarily strong" threat of perjury in contravention of Woolfolk v. Commonwealth, 339 S.W.3d 411 (Ky. 2011). For the reasons described below, we hold the Commonwealth did not commit prosecutorial misconduct.
Prosecutorial misconduct is "a prosecutor's improper or illegal act involving an attempt to persuade the jury to wrongly convict a defendant or assess an unjustified punishment." Noakes v. Commonwealth, 354 S.W.3d 116, 121 (Ky. 2011) (quoting Black's Law Dictionary (9th ed. 2009)). "Any consideration on appeal of alleged prosecutorial misconduct must center on the overall fairness of the trial." Stopher v. Commonwealth, 57 S.W.3d 787, 805 (Ky. 2001) (citing Partin v. Commonwealth, 918 S.W.2d 219 (Ky. 1996)). To justify reversal, the prosecutor's misconduct must be "so serious as to render the trial fundamentally unfair." Soto v. Commonwealth, 139 S.W.3d 827, 873 (Ky. 2004) (citing Stopher, 57 S.W.3d at 905). If an objection exists to the conduct that occurred, then that could be grounds for reversal if "proof of the defendant's guilt was not such as to render the misconduct harmless, and if the trial court failed to cure the misconduct with a sufficient admonition to the jury." Murphy v. Commonwealth, 509 S.W.3d 34, 49 (Ky. 2017) (quoting Duncan v. Commonwealth, 322 S.W.3d 81, 87 (Ky. 2010)). However, if no objection was made to the misconduct, then the Court "will reverse only where the misconduct was flagrant and was such as to render the trial fundamentally unfair." Id. Kathleen Schmidt (quoting Ordway v. Commonwealth, 391 S.W.3d 762, 789 (Ky. 2013)).
This Court has previously ruled that perjury warnings are not per se improper. E.g., Hillard v. Commonwealth, 158 S.W.3d 758, 766 (Ky. 2005). Threats of perjury become error when the judge or prosecutor intentionally casts strong, deliberate, and badgering threats designed to quash significant testimony or otherwise intimidate a witness to the extent of interfering with the witness's free choice to testify. Woolfolk, 339 S.W.3d at 417. The Commonwealth may not provide a false and inaccurate warning of perjury. Id. at 418. Before a "warning" for perjury can be considered a "badgering threat," however, there must be a substantial degree of intimidating circumstances that affected the witness's testimony. Id. at 417.
No prosecutorial misconduct occurred as a result of the Commonwealth's cross-examination of Taylor. Although we discourage the threat of perjury as a tactic of witness examination, its use here was not improper. As Hillard explained,
"[A defendant's] rights are not trenched upon by mere information or advice about the possibility of a perjury prosecution, but by deliberate and badgering threats designed to quash significant testimony." Reversal is required only when the judge's or
prosecutor's conduct interfered substantially with the witness's free and unhampered choice to testify.Hillard, 158 S.W.3d at 766 (quoting United States v. Davis, 974 F.2d 182, 187 (D.C. Cir. 1992)). The Commonwealth's examination of Taylor was not improper. The singular mention of perjury-"do you know what the penalty for perjury is?"-was "limited to mere information or advice about the possibility of a perjury charge" and was not badgering. The Commonwealth's question cannot reasonably be characterized as interfering with Taylor's free and unhampered choice to testify.
The cases cited by Meadows are unavailing. The first case, Woolfolk, is distinguishable because the facts state the witness was brought into the judge's chambers before questioning, was falsely told that he could face penalties of perjury if he testified a certain way, and the judge told the witness that it was in his best interest not to testify at all if what he testified was going to be inaccurate. Woolfolk, 339 S.W.3d at 416. Nothing like what was seen in Woolfolk occurred in Meadows's case. Taylor was not brought to the side, nor was she given any special or extensive directions about perjury. Although it may be implicated that the Commonwealth clearly wanted Taylor to tell what it thought to be the truth, the Commonwealth did not go out of its way to deliberately give statements to intimidate Taylor with perjury. Taylor still could have made the choice to freely give the answer she presumed to be correct.
The second case, Webb v. Texas, 409 U.S. 95 (1972), is distinguishable in that the trial judge in Webb,
did not stop at warning the witness of his right to refuse to testify and of the necessity to tell the truth. Instead, the judge implied that he expected Mills to lie, and went on to assure him that if he lied, he would be prosecuted and probably convicted for perjury, that the sentence for that conviction would be added on to his present sentence, and that the result would be to impair his chances for parole.Webb, 409 U.S. at 97-98. The threats that occurred in Webb were far more intense and exceed the degree in which the Commonwealth warned against perjury in this case.
Additionally, two other key factors that Webb and Woolfolk have in common can distinguish them from Meadows's case. First, in both Webb and Woolfolk, the perjury warnings were given to the defendant on trial, thereby implicating an accused's Sixth amendment right to testify. Here, the witness in question was not the defendant himself, but instead Meadows' witness. The second distinction is that the warnings for perjury in Webb and Woolfolk were from the judge or prosecutor who went in great detail to explain the consequences of perjurious statements to the accused before his testimony. Due to the in-depth and lengthy admonition of perjury to the defendant, he likely would feel less willing to testify for fear of prosecution. The statement at issue here was brief and broadly phrased.
Ultimately, Hillard is the long-standing precedent for cross-examination of a witness. Under that standard, when the Commonwealth introduced the possibility of perjury to Taylor, it was done briefly during the examination and in a manner that was not badgering. The questioning was not error, much less palpable error.
III. CONCLUSION
For the foregoing reasons, the Whitley Circuit Court's judgment is affirmed.
All sitting. All concur.