Tamme v. Commonwealth , 973 S.W.2d 13 ( 1998 )

STUMBO, Justice,

dissenting.

Respectfully, I must dissent. I disagree with the majority on two issues in this ease: VI. The Glidewell issue; and VII(4) The polygraph issue. In deciding to dissent, the argument of counsel before this Court kept replaying in my mind. As counsel so correctly reminded us, this case comes down to issues of witness veracity: who do you believe? Thus, Appellant’s truthfulness and that of his former co-defendant, Buchanon, determined the outcome of this trial. I believe the errors committed in regard to those two pieces of testimony were of sufficient magnitude as to necessitate a new trial.

The latter error is the simplest to deal with. During his testimony, Buchanon was asked about an interview he underwent at the London State Police Post. Buchanon responded: “[T]his for a polygraph.” Prior to the questioning, defense counsel had expressed his concern that the witness might refer to matters that were inadmissible and unresponsive to the questions posed. The Commonwealth immediately recognized that Buchanon’s answer was not responsive, but objected to the motion for mistrial. While Buchanon’s reference to a polygraph could be considered oblique, it must be considered in light of the circumstances of this trial. The Commonwealth’s case relied very heavily on Buchanon — in fact, in opening statement, the Commonwealth’s attorney informed the jury that “one question I will ask you now and one question I will ask you next week when we wrap this case up is ‘would we be here if it wasn’t for Bill Buchanon?” ’ Not only was Buchanon the only eyewitness to the crime, his testimony was crucial to the Commonwealth’s case.

This Court has repeatedly cautioned against any reference to the polygraph examination of defendants. As we stated in Morton v. Commonwealth, Ky., 817 S.W.2d 218, 222 (1991):

We have noted that by its very nature, a polygraph examination has an enormous propensity to influence the jury and prohibited any mention of the taking of such an examination. (Citations omitted.) ... [We have] reversed [a] conviction because a police officer described as having “special interrogation skills” disclosed to the jury that the interrogation took place in a room in which was located a polygraph instrument .... [This disclosure] “amounted to a virtual banner headline” that appellant had been given a polygraph examination.

I would hold the mention of the polygraph by this witness could easily have allowed the jury to draw the clear inference that Bucha-non had indeed taken a polygraph examination. The fact that the Commonwealth then decided to rely so heavily upon Buchanon logically leads one to conclude he passed the examination and is, therefore, rehable or truthful.

When this electronic vouching for a witness is combined with the error committed when Appellant was allowed to be cross-examined about what we have called the Glidewell issue, the prejudice to Appellant becomes clearer. Glidewell came on the scene after Appellant’s first trial and testified on Appellant’s behalf at Appellant’s motion for new trial. He was named’ as a newly-discovered alibi witness who allegedly was with Appellant when the murders occurred. That story was proved false when the Commonwealth determined that Glidewell was in the Barren County jail on the day of the murders and could not have been in Indiana with Appellant as he had testified. Glidewell was convicted of perjury for his testimony.

During Appellant’s second trial, the Commonwealth was permitted, over objection, to cross-examine Appellant about Glidewell’s testimony, the false nature of that testimony, and Glidewell’s perjury conviction. As noted in the majority opinion, we have always rejected the use of particular wrongful acts as a basis for the impeachment of a witness’s credibility. While the particular provision of the KRE that forbade the use of such evidence did not survive the hands of the legislature, nothing in the KRE. authorizes the approach. Our own Civil Rule 43.07 provides that a witness may not be impeached “by evidence of particular wrongful acts, except that it may be shown by the examination of a witness, or record of a judgment, that he has been convicted of a felony.” The majority relies upon a quote from Foley v. Commonwealth, Ky., 942 S.W.2d 876, 887 (1996), wherein we stated generally that attempts to suppress testimony or to convince a witness to swear falsely are admissible as evidence tending to show guilt.

The facts and circumstances of the Foley case, however, were completely different than those in the instant ease. In Foley, the person whom Foley allegedly intimidated in an attempt to get him to change his testimony actually testified at trial and accused Foley of intimidating him. Later, during his own testimony, Defendant Foley attacked the credibility of the complaining witness, and thus opened the door for the Commonwealth to cross-examine him regarding his involvement in attempting to convince that witness to testify falsely or not at all. In contrast, here Glidewell was not called to the stand, and so his veracity was in no way an issue in this trial. Further, at no time did the Commonwealth prove or even allege that Glide-well’s perjured testimony was obtained by Appellant or at Appellant’s instigation. The majority is allowing the jury to infer that fact based on the meager testimony of Appellant and the testimony of two other witnesses regarding Buchanon’s guilt. While the Glidewell evidence may’ be relevant to prove the charge against Appellant, the circumstances of this case make it far more prejudicial than it would have been were there the slightest bit of physical evidence tying Appellant to these crimes.

As stated earlier in this opinion, this is the simplest and, at the same time, most difficult of criminal eases — a swearing contest. If you believe Buchanon, Appellant shot the victim. If you believe Appellant, Buchanon pulled the trigger. In this situation, even marginally relevant evidence is heightened in importance because the jury verdict depends not on concrete fact or physical evidence, but on the intangible factor of which witness seemed to be telling the truth. In affirming this conviction, the majority has cast to the winds prior decisional law in two significant areas and has sent a man to his death by way of the casual mention of a polygraph and the criminal record of a non-witness.

STEPHENS, C.J., and LAMBERT, J., join.