LaMastus v. Commonwealth , 1994 Ky. App. LEXIS 74 ( 1994 )

WILHOIT, Judge,

concurring in part and dissenting in part.

I concur with the result reached by the majority; however, I must dissent as to its interpretation of KRE 404 and KRE 608. Codification, if it may on occasion, certainly does not always result in clarification. Our predicament with respect to these two rules, while rendered much more difficult by the abstruse wording of KRE 608, would be only slightly less so had the General Assembly adopted that rule as originally proposed.

KRE 404(a)(1) specifically limits the prosecution’s introduction of evidence hearing on the character of an accused to rebuttal. As to evidence hearing on the character of witnesses, that rule refers us to KRE 607, 608, and 609; KRE 608 deals with how the credibility of a witness may be attacked. This, of course, raises the question of what to do in the situation of an accused who also becomes a witness. If we apply the customary rule of statutory construction, then the rule dealing specifically with evidence of the character traits of an accused would take precedence over the rule dealing with evidence of the character traits of any witness. Unfortunately, KRE 608 has no official commentary to aid in its construction. Fortunately, KRE 404 does, albeit rather obliquely as to the issues at hand. The commentary states that KRE 404 “adopts the traditional approach to the use of character evidence.” Viewed in the light of our traditional common law rule, KRE 404 must not be intended to have application to the character of an accused who is also a witness, insofar as his character for truthfulness or untruthfulness is concerned. Admittedly the rule does not specifically say that, but such is the only way to keep it from being a marked departure from “the traditional approach.”

KRE 608 by its terms seems intended to apply to how the credibility of a witness may be supported or attacked. In limiting the method for doing this to evidence of “general reputation in the community,” logic and history argue that this rule has reference to evidence of the reputation of the witness for truthfulness. This rule does not by its terms speak to when such an attack is proper, and we have been referred to no section of the Kentucky Rules of Evidence which does.

I can only conclude that with respect to the impeachment of a testifying criminal defendant or any witness by evidence of his reputation for truthfulness, the common law rule still obtains and the impeachment of the appellant on this basis would not have been error. Likewise, the common law rule still obtains as to when it is proper to support the credibility of a witness other than the defendant by evidence of his reputation for truthfulness. For this reason, I believe it was error to admit such evidence until the credibility of the witness has been attacked.