Michael Robertson v. Commonwealth of Kentucky

RENDERED: AUGUST 24, 2023
TO BE PUBLISHED
Supreme Court of Kentucky
2021-SC-0485-MR
MICHAEL ROBERTSON APPELLANT
ON APPEAL FROM DAVIESS CIRCUIT COURT
V. HONORABLE JAMES A. WETHINGTON, JUDGE
NO. 20-CR-00641
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE KELLER
AFFIRMING
A Daviess County jury convicted Michael Robertson of two counts of rape
in the first degree. Robertson was sentenced to twenty years in prison. This
appeal followed as a matter of right. See KY. CONST. § 110(2)(b). Having
reviewed the record and the arguments of the parties, we affirm the Daviess
Circuit Court.
I. BACKGROUND
In August of 2019, A.C.1 and her brother, E.C., lived with their mother,
Keeley Robertson (Keeley), and her husband, Michael Robertson (Robertson).
On August 13, 2019, Robertson brought A.C. to the doctor due to a rash on her
legs and her private area. According to A.C., who was nine years old at the
1 We use initials to identify the minors in this case to protect their privacy.
time, Robertson told her not to wear any panties to the doctor’s office because
the doctor would need to check her private area. The doctor determined A.C.’s
rash was caused by poison ivy and gave her a prescription for a steroid. The
doctor did not give her any medicine while she was at the office. Upon leaving
the doctor’s office but while still in the parking lot, Robertson gave A.C.
Benadryl pills.
Robertson and A.C. then left the doctor, unsuccessfully tried to pick up
A.C.’s prescription, and went to a fast-food restaurant. At the restaurant, A.C.
got a milkshake while Robertson got a soda. After leaving the restaurant,
Robertson brought A.C. to Sylvia Walters’s house. A.C. had become very sleepy
and groggy, and Robertson wanted Walters to check on A.C. Walters was a
medical assistant in a urology office in the local hospital. Walters determined
that A.C. was not in need of urgent medical attention, and Robertson and A.C.
left.
While driving home from Walters’s house, A.C., who was sitting in the
front passenger seat, laid back and rolled over, telling Robertson she was going
to go to sleep because she was feeling tired. After this, Robertson pulled A.C.’s
dress up to her chest. He then inserted his finger into her vagina. A.C.
remained still. Robertson then dripped soda on A.C.’s legs and inserted his
finger into her vagina again. Again, she remained still. A.C. testified that she
never actually fell asleep.
When they arrived back at home, A.C. acted like she was waking up and
went inside. Keeley testified that when A.C. arrived home, A.C. was extremely
2
groggy and had difficulty walking and standing up by herself. A.C. took a
shower and then went to bed. She did not tell Keeley what Robertson had done
to her.
On September 2, 2019, A.C. first disclosed what Robertson had done.
A.C. first told her father’s girlfriend’s daughter, A.R., who was a couple of years
older than A.C. A.R. and A.C. then told A.R.’s grandmother’s sister, Cheryl.
Then A.C. told A.R.’s grandmother, Vicki. Then A.C. told her father’s girlfriend,
Angela. Angela told A.C.’s father, Tyler Stanley, and eventually A.C. also
disclosed to her father what had happened. Stanley then confronted Robertson,
and later that evening, A.C. and her brother began living with Stanley.
During the investigation into the above-described events, A.C. underwent
a physical examination by a doctor and a forensic interview at the Children’s
Advocacy Center (CAC). During her forensic interview, A.C. stated that
Robertson inserted his finger into her vagina three times. Based on this,
Robertson was indicted on three counts of rape in the first degree. At trial, A.C.
only testified to the two incidents described above, and thus, the trial court
granted Robertson a directed verdict on one count of rape. The jury eventually
found Robertson guilty of two counts of rape in the first degree and
recommended a sentence of twenty years in prison. The trial court imposed
this recommended sentence, and Robertson appealed to this Court.
II. ANALYSIS
Robertson alleges numerous errors by the trial court and urges this
Court to reverse his convictions. First, he alleges that the trial court misapplied
3
Marsy’s Law by allowing Stanley to remain in the courtroom prior to his
testimony. Second, he alleges the trial court erred by allowing the
Commonwealth to refer to A.C. as the “victim” during the trial. Third,
Robertson alleges that the trial court erred by allowing Stanley to improperly
bolster A.C.’s credibility. Fourth, he argues that the trial court erred when it
allowed a doctor to testify to the legal definition of rape. Fifth, he asserts that
the trial court erred when it allowed the CAC interviewer to testify to improper
impeachment evidence. Sixth, he argues that the trial court erred when it
allowed a detective to read directly from notes about Robertson’s interview
which were prepared by the prosecutor. Seventh, Robertson argues that the
Commonwealth’s Attorney improperly inserted himself as a witness during the
detective’s testimony. Finally, he urges this Court to reverse his convictions
because of cumulative error. We address each of Robertson’s arguments in
turn.
A. The trial court did not misapply Marsy’s Law.
Robertson first argues that the trial court misapplied Marsy’s Law by
allowing Stanley, as A.C.’s representative under Marsy’s Law, to remain in the
courtroom prior to his testimony. Robertson asserts that this violated his right
to the presumption of innocence, his right to confrontation, and his right to
have witnesses separated. The parties disagree about whether this issue was
waived, and if it was not waived, whether it was properly preserved for our
review. However, we need not definitively determine whether the issue was
waived or preserved because it is clear the trial court did not err.
4
Under Marsy’s Law, a crime victim “as defined by law” has a
constitutional right to be “present at the trial and all other proceedings, other
than grand jury proceedings, on the same basis as the accused.” KY. CONST. §
26A. Under Kentucky Revised Statute (KRS) 421.500(1)(a), “[i]f the victim is a
minor . . ., ‘victim’ also means one (1) or more of the victim’s . . . parents . . .
which shall be designated by the court . . .” Conversely, under Kentucky Rule
of Evidence (KRE) 615, “At the request of a party, the court shall order
witnesses excluded so that they cannot hear the testimony of other witnesses.”
As we acknowledged in Cavanaugh v. Commonwealth, “KRE 615 and Section
26A of the Kentucky Constitution conflict with each other.” No. 2021-SC-0441-
MR, --- S.W.3d ---, 2022 WL 17726279, *2 (Ky. Dec. 15, 2022). However, we
have also consistently held that “constitutional rights prevail over conflicting
statutes and rules.” Commonwealth v. Barroso, 122 S.W.3d 554, 558 (Ky.
2003).
In Cavanaugh, we explained that “in the event an application of Marsy’s
Law should violate a defendant’s federal constitutional rights, then the Court
would be compelled to remedy such a violation.” 2022 WL 17726279, at *2
(citing U.S. CONST. art. VI, cl. 2). In that case, Cavanaugh was unable to “point
to any authority stating KRE 615 is constitutionally required and is unable to
point to any prejudice caused by the trial court permitting [the victim] to
remain in the courtroom.” Id. The same is true here.
Robertson argues that “[i]nherent in the [constitutional] right to confront
witnesses against him is the right to confront those witnesses in a manner that
5
allows him to test the veracity of their testimony.” Although it is true that “[t]he
purpose of KRE 615 is to prevent a witness’s testimony from being influenced
by the testimony of other witnesses,” Spears v. Commonwealth, 448 S.W.3d
781, 788 (Ky. 2014) (citation omitted), it is not necessary to the constitutional
right to confrontation. There is no explicit constitutional right to separation of
witnesses, and Robertson has cited to no caselaw finding a right to separation
of witnesses within the Confrontation Clause of either the United States or
Kentucky constitutions. Further, Robertson’s presumption of innocence was
not violated by the trial court’s designating Stanley as a representative of the
victim under Marsy’s Law, as the trial court did not identify him as such in
front of the jury.
Finally, Robertson can show no “prejudice caused by the trial court
permitting [Stanley] to remain in the courtroom.” Cavanaugh, 2022 WL
17726279, at *2. Stanley was the third witness to testify, after A.C. and Sylvia
Walters. He had no direct knowledge of A.C.’s interactions with Robertson or
with Walters. As such, the testimony of those two witnesses was unlikely to
influence Stanley’s testimony. Further, Robertson could have cross-examined
Stanley regarding the effect the previous testimony had on his own, but did
not. Accordingly, the trial court did not err in allowing Stanley to remain in the
courtroom before he testified.
Although there was no prejudice in this case, that may not be true in
every case. Today, we are constrained to hold as we do by the language of
Marsy’s Law. However, we are ever mindful that “[t]he purpose behind the
6
separation of witness rule is to insure the integrity of the trial by denying a
witness the opportunity to alter his testimony.” Reams v. Stutler, 642 S.W.2d
586, 589 (Ky. 1982) (citing Commonwealth, Dep’t of Highways v. Riley, 414
S.W.2d 883 (Ky. 1967)). Because the integrity of the trial process is exceedingly
important, we take the opportunity today to briefly set forth best practice for
when this issue arises in the future.
Both the defense and the Commonwealth should consider in their trial
preparations whether a conflict may arise between Marsy’s Law and KRE 615.
If there is an anticipated conflict, the parties should bring it before the court
pretrial. At that time, the trial court should conduct a hearing at which the
parties can discuss the potential conflict, and the Commonwealth can put forth
its proposed order of witnesses and the basic substance of the victim’s
testimony. With that information, the trial court should, to the best of its
ability, determine the impact of the conflict on the proposed testimony of the
victim. Then the court should determine if, in the interest of maintaining the
integrity of the trial, a different order of Commonwealth witness presentation is
mandated. We trust trial courts to use their discretion in making these
determinations to help ensure as fair a trial process as possible, within the
parameters of Marsy’s Law.
B. The trial court did not err by allowing the Commonwealth to refer to
A.C. as the “victim” during trial.
Robertson next argues that the trial court erred in allowing the
Commonwealth to refer to A.C. as the “victim” during the trial. He asserts that
this violated his presumption of innocence and invaded the province of the
7
jury. Robertson acknowledges that we have previously held that a trial court
did not abuse its discretion in allowing the Commonwealth to refer to the
victims in that case as “victims.” Whaley v. Commonwealth, 567 S.W.3d 576,
590 (Ky. 2019). He, however, asserts that Whaley was wrongly decided and
urges us to overrule it.
In Whaley, we noted that it would be “cumbersome and untenable” for
the Commonwealth to refer to Whaley’s accusers as “alleged victims.” Id. We
further held that
[i]dentifying this group of children [as victims] in no way
constituted a judgment as to the identity of the perpetrator of these
crimes. This reference to the children as victims would not be
unduly prejudicial. In fact, it would be no more so than the reading
of the indictment listing the charges against Whaley.
Id. We also noted that the statutory sections outlawing sexual abuse, the
crimes with which Whaley was charged, all “refer to the subject child as a
victim.” Id.2 The same is true in this case, as KRS 510.040, the statute which
defines Rape in the first degree, refers to the person upon whom the crime is
committed as the “victim.” We see no need to revisit our holding in Whaley.
Accordingly, the Commonwealth’s references to A.C. as the “victim” did not
invade the province of the jury or violate Robertson’s presumption of
innocence, and the trial court did not abuse its discretion in allowing the
Commonwealth to refer to her in such a way.
2 We now note that only KRS 510.110, defining Sexual Abuse in the First
Degree, includes the word “victim.” The other two statutes referred to in Whaley, KRS
510.120 and 510.130, do not include the word “victim.”
8
C. The trial court did not err in admitting Tyler Stanley’s testimony.
Robertson next argues that the trial court erred in allowing Stanley to
improperly bolster A.C.’s testimony by saying that he wanted to make sure A.C.
was telling the truth before confronting Robertson. Specifically, Stanley
testified,
I wanted to make sure that what had happened was true. . . . I
wanted to let her know that I was going to confront Michael
[Robertson] about the things that were said. So, I wanted to make
sure that I was potentially getting in trouble for a real problem, not
hearsay.
Following this testimony, Stanley testified that he then had a friend drive him
to Robertson’s house to confront Robertson. Robertson argues that through
this testimony, Stanley “indirectly vouched for the truth of A.C.’s statement by
implying that he found her so credible that he was willing to risk imprisonment
to confront Michael [Robertson] over the allegations.” This allegation of error
was properly preserved by a pretrial motion in limine as well as a
contemporaneous objection.
We review the trial court’s decision to admit evidence for abuse of
discretion. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citation
omitted). “The test for abuse of discretion is whether the trial judge’s decision
was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”
Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).
“It is well-settled that a witness cannot vouch for the truthfulness of
another witness. . . . [T]his rule applies even when a witness indirectly vouches
for the truth of the victim’s statement.” Hoff v. Commonwealth, 394 S.W.3d
9
368, 376 (Ky. 2011) (citations omitted). In this case, it is unclear what exactly
Stanley meant when he said that he “wanted to make sure that what had
happened was true.” Because he followed this statement up by explaining that
he wanted “to make sure” he was not acting based on “hearsay,” one
reasonable interpretation of this testimony is that he wanted to hear the
allegations directly from A.C. herself. Before speaking to A.C., he had only been
told by Angela that A.C. had disclosed to Angela that Robertson had sexually
assaulted A.C. If Stanley’s testimony was only that he wanted to make sure
A.C. had actually said the things that Angela told him she had said, then
Stanley was not vouching for the truth of A.C.’s allegations at all.
Another reasonable interpretation of Stanley’s testimony, however, is
that he wanted to speak to A.C. directly so that he could gauge her demeanor
and determine for himself if she was being truthful. If this was the meaning of
his testimony, then his later testimony that he confronted Robertson about the
allegations indirectly indicates that he, in fact, believed A.C. was telling the
truth in her accusations against Robertson. This would be improper vouching.
There are two reasonable interpretations of the evidence at issue, one of
which consists of admissible testimony and one of which consists of
inadmissible testimony. Because either interpretation would have been a
reasonable conclusion for the trial court, we cannot say that the trial court’s
decision to admit the evidence was “unreasonable.” See Goodyear Tire &
Rubber Co., 11 S.W.3d at 581. Thus, the trial court did not abuse its discretion
10
in admitting this evidence. However, to the extent the testimony was improper,
any error in its admission was harmless.
D. The trial court did not commit palpable error by allowing a doctor to
testify regarding the legal definition of rape.
Robertson next argues that the trial court erred in allowing Dr. Jennifer
Lisle, a pediatrician and physician with the CAC, to testify to the legal
definition of rape. We review the trial court’s decision to admit evidence for
abuse of discretion. English, 993 S.W.2d at 945 (citation omitted). Robertson
acknowledges this alleged error is unpreserved, however, and requests palpable
error review under Kentucky Rule of Criminal Procedure (RCr) 10.26.
As relevant to this case, “[a] person is guilty of rape in the first degree
when . . . [h]e engages in sexual intercourse with another person who is
incapable of consent because he . . . [i]s less than twelve (12) years old.” KRS
510.040(1)(b)2. “‘Sexual intercourse’ means sexual intercourse in its ordinary
sense and includes penetration of the sex organs of one person by any body
part or a foreign object manipulated by another person. Sexual intercourse
occurs upon any penetration, however slight; emission is not required.” KRS
510.010(8). The word “penetration” is not defined in Kentucky statutes.
During the Commonwealth’s direct examination of Dr. Lisle, the
Commonwealth’s Attorney asked her if she was “familiar with Kentucky’s
definition of sexual intercourse.” She responded, “I think so.” The
Commonwealth’s Attorney then said, “As far as penetration however slight?”
Dr. Lisle responded, “Yes, anything that goes past the labia.” The
Commonwealth’s Attorney then switched the focus of his questioning to A.C.’s
11
lack of injuries and whether this was consistent with the history that A.C.
provided.
Robertson then began his cross-examination of Dr. Lisle. During this
cross-examination, Robertson focused heavily on the difference between
touching and penetration, both medically and legally. He referenced the
questions asked by the Commonwealth’s Attorney to which he now objects and
on at least three other occasions referenced the “legal distinction” or “legal
difference” between touching and penetration.
On re-direct examination, Dr. Lisle explained the different anatomical
parts that make up a female’s genital area. She then stated, “Penetration from
the medical standpoint, and I think from the legal standpoint is…” Robertson
then objected arguing that Dr. Lisle was not qualified to give the legal definition
of penetration. The trial court reminded Robertson that he questioned Dr. Lisle
about the legal distinction between touching and penetration on cross-
examination. The trial court ultimately instructed the parties to “try to keep her
away from the legal issue” while acknowledging that “her understanding of the
forensics is crucial.” Robertson did not request any further clarification of the
ruling or any remedy such as an admonition.
As re-direct examination continued, the Commonwealth asked Dr. Lisle
about the definition of penetration “from a medical standpoint.” Robertson
continued this line of questioning on re-cross examination. Finally, on re-re-
direct, the Commonwealth read the statutory definition of sexual intercourse
and asked Dr. Lisle to define “the sex organ,” which she did without objection.
12
As previously explained, we review the trial court’s decision to admit
evidence for abuse of discretion. English, 993 S.W.2d at 945 (citation omitted).
“The test for abuse of discretion is whether the trial judge’s decision was
arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”
Goodyear Tire & Rubber Co., 11 S.W.3d at 581.
On cross-examination of Dr. Lisle, Robertson elicited much of the
evidence about which he now complains. Any alleged error in the admission of
the testimony elicited on cross-examination is not merely unpreserved, but
instead is invited error. A party is estopped from asserting an invited error on
appeal. Gray v. Commonwealth, 203 S.W.3d 679, 686 (Ky. 2006) (citations
omitted). “We have often held that a party is estopped to take advantage of an
error produced by his own act.” Wright v. Jackson, 329 S.W.2d 560, 562 (Ky.
1959) (citation omitted). An appellate court will not review actions that “reflect
the party’s knowing relinquishment of a right.” Quisenberry v. Commonwealth,
336 S.W.3d 19, 38 (Ky. 2011) (citing United States v. Perez, 116 F.3d 840, 845
(9th Cir. 1997)). Thus, we will not review the evidence that was admitted during
Robertson’s cross-examination of Dr. Lisle.
The only other evidence admitted from Dr. Lisle regarding a legal
definition of penetration occurred towards the beginning of her testimony,
during the Commonwealth’s direct examination. As described above, Dr. Lisle
testified that under Kentucky’s definition of sexual intercourse, “penetration
13
however slight” meant “anything that goes past the labia.”3 Because this Court
has held numerous times that “a witness generally cannot testify to
conclusions of law,” the admission of this testimony was in error. Tamme v.
Commonwealth, 973 S.W.2d 13, 32 (Ky. 1998) (citing Gibson v. Crawford, 259
Ky. 708, 722, 83 S.W.2d 1, 7 (1935)). In fact, this Court has a difficult time
envisioning a situation, other than potentially in a legal negligence case, in
which a witness would be qualified to testify to the legal definition of a word
used in a statute. This is so for two primary reasons. First, generally, words in
a statute are given their “plain and ordinary meaning.” Ky. Occupational Health
& Safety Comm’n v. Estill Cnty. Fiscal Ct., 503 S.W.3d 924, 929 (Ky. 2016).
Second, the duty to instruct the jury on the law rests solely with the trial court.
However, because this error was not preserved, we review it for palpable error.
Under RCr 10.26,
A palpable error which affects the substantial rights of a party may
be considered by the court on motion for a new trial or by an
appellate court on appeal, even though insufficiently raised or
preserved for review, and appropriate relief may be granted upon a
determination that manifest injustice has resulted from the error.
“An error is ‘palpable[]’ only if it is clear or plain under current law. . . .
Generally, a palpable error ‘affects the substantial rights of a party’ only if ‘it is
more likely than ordinary error to have affected the judgment.’” Miller v.
Commonwealth, 283 S.W.3d 690, 695 (Ky. 2009) (citations omitted). Finally,
manifest injustice is found only where, after consideration of the record, the
3 We acknowledge that although this definition may be accurate medically, the
medical definition is not at issue today.
14
defect alleged was “shocking or jurisprudentially intolerable” and where “the
error seriously affected the ‘fairness, integrity, or public reputation of the
proceeding.’” Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006) (citations
omitted). “[T]he required showing is probability of a different result or error so
fundamental as to threaten a defendant’s entitlement to due process of law.” Id.
at 3. When we engage in palpable error review, our “focus is on what happened
and whether the defect is so manifest, fundamental and unambiguous that it
threatens the integrity of the judicial process.” Baumia v. Commonwealth, 402
S.W.3d 530, 542 (Ky. 2013) (quoting Martin, 207 S.W.3d at 5).
In this case, the admission of testimony from Dr. Lisle that penetration
was “anything that goes past the labia” was not so serious that it “affected the
‘fairness, integrity, or public reputation of the proceeding.’” Martin, 207 S.W.3d
at 4. Robertson, in fact, sought to capitalize on this testimony during his cross-
examination. He emphasized that because Dr. Lisle knew there was a legal
distinction between touching and penetrating, her notes that A.C. told her that
Robertson only “touched” her were significant. Further, while this testimony
was relevant to the lesser-included offense of sexual abuse, Robertson’s
defense at trial was complete innocence. If the jury members had believed his
version of events, then they would have found him not guilty of committing any
offense, and this testimony would have had no bearing on their determination.
Accordingly, we hold that the improper admission of testimony from Dr. Lisle of
the definition of penetration did not rise to the level of palpable error
warranting reversal of Robertson’s convictions.
15
E. The trial court did not err in admitting testimony from the CAC
interviewer.
Robertson next argues that the trial court erred in admitting testimony
from the CAC forensic interviewer, Jamie Hargiss, of statements A.C. made to
Hargiss during her forensic interview. At trial, Robertson objected to Hargiss’s
testimony arguing it improperly bolstered A.C.’s credibility, as the statements
to which Hargiss testified were prior consistent statements made by A.C. To
this Court, Robertson argues that Hargiss’s testimony was improper
impeachment, asserting that A.C. acknowledged her prior inconsistent
statement to Hargiss during her trial testimony. Robertson argues that because
A.C. acknowledged her prior inconsistent statement, Hargiss was not permitted
to testify to the inconsistent statement. He further asserts that “[b]ecause
impeachment was not a proper purpose for this testimony, the testimony
reverts merely to being impermissible hearsay” and only served to improperly
bolster A.C.’s credibility.
The parties disagree as to whether this alleged error was properly
preserved. However, we need not determine whether it was in fact properly
preserved, as the trial court did not err in admitting Hargiss’s testimony.
At trial, A.C. testified to two instances when Robertson inserted his finger
into her vagina, despite having told Hargiss that it happened three times. The
Commonwealth, during its direct examination of A.C., then sought to impeach
her with her statements to Hargiss. The trial court instructed the
Commonwealth to use a “soft impeachment” style with A.C. The following
exchange then occurred.
16
Commonwealth (CW): Do you remember talking to a lady?
A.C.: No.
CW: Or a video of you talking to somebody else?
A.C.: Yes.
CW: And did you tell that lady it happened at least three times?
A.C.: I think. I think it happened like two or three times.
The next day, the Commonwealth called Hargiss to testify. After Hargiss told
the jury that she was employed by the CAC and explained what the CAC is,
Robertson objected. The bench conference that ensued was a bit unusual. As
noted above, Robertson objected on the grounds that Hargiss’s testimony
would improperly bolster A.C.’s credibility by repeating a prior consistent
statement. The Commonwealth then explained that it believed Robertson would
likely want Hargiss to testify as to A.C.’s prior inconsistent statement. The
Commonwealth went on to say that Hargiss had other forensic interviews
scheduled, and the Commonwealth wanted to call her to testify during its case-
in-chief so that she could be released from her subpoena and return to work.
The trial court then ruled that Hargiss could testify to her credentials and how
many times A.C. told Hargiss that Robertson had touched her, but that Hargiss
could not “get into all of the details” or testify to A.C.’s prior consistent
statements. Robertson then objected to Hargiss testifying to all of her
qualifications, as Robertson did not believe they were necessary if Hargiss was
only testifying for impeachment purposes. The trial court overruled that
objection.
17
Hargiss then testified that A.C. told her that Robertson put his finger in
her vagina three times on the same day over a short period of time. She further
testified that A.C. told her this occurred on the car ride home from a doctor’s
appointment. She said that A.C. told her they stopped at a friend’s house, that
A.C. thought the friend was a nurse, and that the touching occurred after
leaving the friend’s house, on the way home. Finally, Hargiss testified that A.C.
specifically stated that Robertson used his index finger. Robertson did not
object again during Hargiss’s testimony and did not cross-examine her.4
Under KRE 802, hearsay is generally inadmissible. “‘Hearsay’ is a
statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.” KRE
801. Under KRE 801A, however,
[a] statement is not excluded by the hearsay rule, even though the
declarant is available as a witness, if the declarant testifies at the
trial or hearing and is examined concerning the statement, with a
foundation laid as required by KRE 613, and the statement is . . .
[i]nconsistent with the declarant’s testimony.
Under KRE 613,
[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;
and, if it be in writing, it must be shown to the witness, with
opportunity to explain it.
4 We note that some of this testimony repeated A.C.’s prior consistent
statements in violation of the trial court’s ruling during the bench conference.
However, because Robertson does not argue this to our Court, we will not review
whether admission of the prior consistent statements was erroneous.
18
Robertson argues that “[i]mplicit in this rule is the understanding that if a
witness is inquired of concerning the prior statement and admits the prior
statement was made, the impeachment ends.” He seems to assert that A.C.
acknowledged her prior inconsistent statement to Hargiss and that because of
this acknowledgement, Hargiss’s testimony was improper. We review the trial
court’s decision on this issue for abuse of discretion. English, 993 S.W.2d at
945 (citation omitted); Meece v. Commonwealth, 348 S.W.3d 627, 645 (Ky.
2011) (citation omitted).
We have previously held that a “trial judge has considerable discretion in
determining whether testimony is ‘inconsistent’ with prior statements;
inconsistency is not limited to diametrically opposed answers but may be found
in evasive answers, inability to recall, silence, or changes of position.” Meece,
348 S.W.3d at 672 (quoting United States v. Dennis, 625 F.2d 782, 795 (8th
Cir. 1980)). In this case, A.C. could not remember “talking to a lady” about
what Robertson did to her but could only remember a video of her “talking to
somebody else.” Further, when asked if she told “that lady it happened at least
three times,” A.C.’s answer was less than certain. She replied, “I think. I think
it happened like two or three times.” The trial court was fully within its
discretion to find that this testimony was “inconsistent” with her unequivocal
statement to Hargiss that Robertson had touched her three times. Therefore,
Hargiss’s testimony was proper impeachment through use of a prior
inconsistent statement. Accordingly, the trial court did not err in admitting
Hargiss’s testimony.
19
F. The trial court did not err in admitting Detective Jared Ramsey’s
testimony.
Robertson next argues that the trial court erred in allowing Detective
Jared Ramsey to read directly from notes prepared by the Commonwealth’s
Attorney about Robertson’s interview. Robertson asserts this violated both KRE
612 and 803(5). We review the trial court’s admission of this evidence for abuse
of discretion. English, 993 S.W.2d at 945 (citation omitted).
During Detective Ramsey’s testimony, the Commonwealth asked the
detective about his interview with Robertson. Before asking Detective Ramsey
to describe the substance of the interview, the Commonwealth asked Detective
Ramsey if he had taken notes about the interview, if he had the notes with him,
if the notes would refresh his memory about the interview, and if the notes
would assist him in communicating to the jury what was said during the
interview. Detective Ramsey answered in the affirmative to each of these
questions. Robertson interjected and asked if the notes were made
contemporaneously with the interview or in preparation for trial. Both Detective
Ramsey and the Commonwealth answered that the notes were made in
preparation for trial. Robertson then asked for a copy of the notes, which the
Commonwealth provided to him. The Commonwealth then asked Detective
Ramsey if he had compared the notes to the recorded interview and if the notes
were accurate. Detective Ramsey stated that he had compared the notes to the
recorded interview and that the notes were consistent with the interview. He
then began describing the interview.
20
Less than two minutes into Detective Ramsey’s testimony about the
interview, Robertson objected. Robertson argued both that the notes were in
the Commonwealth’s Attorney’s handwriting and that Detective Ramsey was
reading from them verbatim. During the bench conference on this objection,
the trial court first ordered the Commonwealth to take the notes away from
Detective Ramsey and only provide them to him if he needed them. However,
after further discussion in which Robertson and the Commonwealth explained
that they both believed there were portions of the recorded interview which
were inadmissible, the trial court changed its ruling and ordered that Detective
Ramsey could, in fact, read from the notes verbatim.
Detective Ramsey then continued to describe his interview with
Robertson. Sometimes he testified without looking at the notes at all,
sometimes he merely glanced at the notes while testifying, and sometimes he
looked at the notes for an extended period while testifying. It is unclear
whether Detective Ramsey was reading from the notes verbatim during this
testimony because the notes were not made a part of the record on appeal.
Robertson objected again, arguing that Detective Ramsey was not
testifying but instead was merely reading from the Commonwealth’s Attorney’s
notes and that his testimony was in narrative form without any questions
being posed to him. The trial court overruled this objection but ordered the
Commonwealth to try to direct Detective Ramsey to answer questions.
Detective Ramsey then continued describing his interview with
Robertson. He eventually began looking at the notes for an extended period
21
while testifying and could have possibly been reading from them, but again, it
is unclear to this Court. Robertson again objected on the basis that Detective
Ramsey’s testimony was narrative without any questions being asked. During
the bench conference on that objection, the parties again discussed with the
trial court that the video of the interview was not being played because there
were inadmissible portions. Robertson again argued that Detective Ramsey was
reading the notes verbatim. The trial court then asked Robertson what the
remedy would be if it sustained his objection. Robertson stated, “It might be a
mistrial” because he could not test the detective’s memory. The trial court then
stated that it sustained Robertson’s objection and ordered the Commonwealth
to take the notes away from Detective Ramsey.
Before testimony resumed and after further conversation at the bench,
Robertson admitted that the notes from which Detective Ramsey was reading
accurately portrayed the interview but that they were not verbatim from the
interview. The trial court then changed its ruling again to allow Detective
Ramsey to read questions and answers from the notes. Robertson informed the
trial court that the notes were not in a question-and-answer format. Finally,
the trial court stated,
I’m not going to make a record based on a transcript that is not in
evidence. Now, if you want to put it into evidence, I will have to
stop this proceeding, review the transcript, and give you a ruling.
Otherwise, I can’t control how [the Commonwealth’s Attorney]
presents his case.
The Commonwealth then agreed to move on, and Detective Ramsey continued
testifying. Robertson did not make the notes a part of the trial court record nor
22
are they a part of the record on appeal. However, after the Commonwealth
closed its case-in-chief, Robertson moved for a mistrial based on the detective’s
reading of the notes verbatim.
In attempting to review this allegation of error, this Court faces the same
problem faced by the trial court. Because the notes are not a part of the record
for us to review, we cannot tell if or how much Detective Ramsey read from the
notes. On cross-examination, Detective Ramsey stated that he paraphrased
“quite a bit” but that there “are only so many ways to say” some of the things
that Robertson said during the interview. Detective Ramsey also stated that
some of the statements to which he testified were “actual comments made by”
Robertson that Detective Ramsey specifically remembered.
It is clear from the record that the Commonwealth intended to use the
notes to refresh Detective Ramsey’s memory under KRE 612, the present
memory refreshed rule.
For a witness’s memory to be refreshed under this rule, the offering
party must show that “the witness once had personal knowledge of
the event about which testimony is sought and . . . the witness’s
memory of that event needs to be revived.” This rule codifies the
common-law rule allowing any writing to be used to refresh a
witness’s memory if necessary. True to its name, when a witness
refreshes her memory under this rule, the testimony elicited
thereafter “is the product of the refreshed memory, not the writing
used to refresh it.” As a result, the document itself is not
admissible into evidence, and the hearsay rule does not apply.
Martin v. Commonwealth, 456 S.W.3d 1, 14–15 (Ky. 2015), abrogated on other
grounds by Sexton v. Commonwealth, 647 S.W.3d 227 (Ky. 2022) (footnotes
omitted). The Commonwealth laid the foundation required by the rule and did
not seek to admit the notes into evidence. See id. at 15. This is in contrast to
23
what the Commonwealth would have been required to do if it sought to admit
Detective Ramsey’s testimony under KRE 803(5), the past recollection recorded
rule.
For admission under this rule to be appropriate, the offering party
must show the writing was made or adopted by the witness as an
accurate reflection of personal knowledge the witness once
possessed, and the witness no longer adequately remembers the
matter to fully and accurately testify. If this test is met, the
recording, which need not be a writing, may be read into the record
as substantive evidence but may not be introduced as an exhibit
unless offered by the adverse party.
Id. (footnotes omitted). KRE 803(5) sets a higher foundational requirement
which the Commonwealth did not even attempt to meet in this case.
If Detective Ramsey had read from the notes verbatim, this could have
been a violation of KRE 612, as the notes should have only been used to
refresh his recollection. However, without the notes in the record for our
review, we cannot determine if or how much he read from the notes. Further,
this Court “will not engage in gratuitous speculation . . . based upon a silent
record.” Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985). See also
Chestnut v. Commonwealth, 250 S.W.3d 288, 304 (Ky. 2008) (citing Thompson,
697 S.W.2d at 145) (“[W]e are bound to assume that the omitted record
supports the decision of the trial court.”). Accordingly, we hold that the trial
court did not abuse its discretion in allowing Detective Ramsey’s testimony.
G. The Commonwealth’s Attorney did not improperly insert himself as
a witness.
Robertson next argues that the Commonwealth’s Attorney violated his
ethical duties by improperly inserting himself as a witness during Detective
24
Ramsey’s testimony. Robertson argues that the Commonwealth’s Attorney did
this in two ways: first, by asking Detective Ramsey if he and Detective Ramsey
had prepared notes on Robertson’s interview together; and second, by noting
during Detective Ramsey’s testimony that he was with Detective Ramsey when
Detective Ramsey timed the likely routes Robertson would have driven on the
day in question. Robertson asserts that this questioning placed the credibility
of the Commonwealth’s Attorney in front of the jury and served to bolster the
validity of Detective Ramsey’s testimony. Further, he asserts that his right to a
fair trial under the Due Process Clause of the Fifth Amendment to the United
States Constitution was violated by the Commonwealth’s Attorney’s actions.
Robertson acknowledges this alleged error was not preserved and requests
palpable error review.
Robertson argues that the Commonwealth’s Attorney improperly inserted
himself as a witness when he elicited testimony from Detective Ramsey that
they had worked together to prepare the notes on Robertson’s interview. This
testimony came during the Commonwealth’s re-direct examination of Detective
Ramsey. The Commonwealth did not elicit this information during its direct
examination of Detective Ramsey. In fact, Robertson was the first to inform the
jury that the notes Detective Ramsey used during his testimony were in the
Commonwealth’s Attorney’s handwriting.
Robertson began his cross-examination of Detective Ramsey by asking if
the notes were in his handwriting. Detective Ramsey admitted that they were
not. Upon further questioning, Detective Ramsey acknowledged that he had
25
made only a few little notes and that the vast majority of the notes themselves
were made by the Commonwealth’s Attorney. Thus, Robertson himself was the
first to bring this information to the attention of the jury. Therefore, to the
extent that Detective Ramsey’s further testimony on re-direct examination
could have been error, it was invited error. “We have often held that a party is
estopped to take advantage of an error produced by his own act.” Wright, 329
S.W.2d at 562 (citation omitted). Thus, Robertson is estopped from asserting
this alleged error, and we will not review it.
Robertson next argues that the Commonwealth’s Attorney improperly
inserted himself as a witness by noting through his questioning that he was
with Detective Ramsey when Detective Ramsey timed the likely routes
Robertson would have driven on the day in question. Specifically, after
Detective Ramsey testified that the driving distance from Meijer, where
Robertson tried to pick up A.C.’s prescription, to Sylvia Walters’s house was
3.3 miles and took about 7 minutes and 55 seconds, the Commonwealth’s
Attorney asked, “You drove it, and I was with you?” Then he asked, “You did
the calculations?” Detective Ramsey answered affirmatively to both of those
questions. Detective Ramsey then described the route from Walters’s house to
the house where Robertson, A.C., and Keeley lived. The Commonwealth’s
Attorney then asked, “How long did that take you, or us?” Detective Ramsey
then answered that it took about 8 minutes and 45 seconds and was 4.8 miles.
Under Kentucky Rule of Professional Conduct (SCR) 3.130(3.4)(e), “[a]
lawyer shall not . . . in trial, . . . assert personal knowledge of facts in issue
26
except when testifying as a witness.” Robertson cites to Holt v. Commonwealth,
219 S.W.3d 731 (Ky. 2007), to support his position that the Commonwealth’s
Attorney violated this rule.
In Holt, the Commonwealth called a witness who had been incarcerated
with the defendant to testify. Id. at. 733. When the witness did not testify
consistently with a statement he had previously given to the Commonwealth,
the Commonwealth sought to impeach him with his prior statement. Id. In
doing so, the Commonwealth’s Attorney asked questions such as: “Do you
remember talking with me this morning?”; “Do you remember telling me that
he told you that he did it?”; “So, you don’t recall ever telling me that the
defendant in this case told you that he robbed that trailer?”; “Do you remember
telling me that the defendant told you that [he put certain evidence] in his
mom’s garage?”; and “But you’re now saying that you don’t recall telling me
that the defendant told you that he put them in his mom’s garage?” Id. at 733–
34. By asking these questions, the Commonwealth’s Attorney “asserted on at
least four occasions that [the witness] told her that Appellant had admitted the
crime.” Holt, 219 S.W.3d at 734. The Commonwealth did not call any other
witness to impeach that witness’s testimony, and the impeachment was done
entirely through the Commonwealth’s cross-examination. Id. In doing so, the
Commonwealth’s Attorney took “such broad liberties in the mode of
examination as to essentially give testimony as to the substance of the prior
statement.” Id. at 733. We held that “assertions of fact from counsel as to the
content of prior conversations with witnesses have the effect of making a
27
witness of the lawyer and allowing his or her credibility to be substituted for
that of the witness,” and we reversed Holt’s conviction. Id. at 737.
We addressed a similar issue in Fisher v. Commonwealth, 620 S.W.3d 1(Ky. 2021). In Fisher, the Commonwealth called a detective to testify to the
information contained in a discovery log in order to show that another witness
could not have obtained the knowledge he had about the crime from reviewing
the discovery materials provided to the defendant. Id. at 12. The detective did
not have “personal knowledge or memory of the specific discovery timeline,”
and the Commonwealth had to “resort[] to highly suggestive and leading
questionings during direct examination.” Id. at 12–13. We explained that by
doing this, “[t]he Commonwealth’s Attorney was feeding a witness facts beyond
the witness’s personal knowledge through leading questions and gestures.” Id.
at 14. We held this was error, albeit not reversible in that case. Id. at 15.
The Commonwealth’s questioning of Detective Ramsey in the case at bar
is of a different kind than that found to be error in Holt and Fisher. In this
case, the Commonwealth’s Attorney did not “give testimony” or “feed[] a witness
facts beyond a witness’s personal knowledge.” Holt, 219 S.W.3d at 733; Fisher,
620 S.W.3d at 14. Instead, the Commonwealth’s Attorney merely noted his
presence with Detective Ramsey as Detective Ramsey drove the routes he
thought Robertson may have taken on the day in question. This does not
amount to error, and certainly is not palpable error.
28
H. There is no cumulative error.
Finally, Robertson argues his conviction should be reversed due to
cumulative error. Under the cumulative error doctrine, “multiple errors,
although harmless individually, may be deemed reversible if their cumulative
effect is to render the trial fundamentally unfair.” Brown v. Commonwealth, 313
S.W.3d 577, 631 (Ky. 2010). “Where, as in this case, however, none of the
errors individually raised any real question of prejudice, we have declined to
hold that the absence of prejudice plus the absence of prejudice somehow adds
up to prejudice.” Id. (citing Furnish v. Commonwealth, 95 S.W.3d 34 (Ky.
2002)). In this case, the only potential error we have identified is the CAC
interviewer’s testimony as to the legal definition of rape. That potential error
alone did not render Robertson’s trial fundamentally unfair, and there are no
other errors to accumulate. Accordingly, we hold there was no cumulative error
in this case.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the Daviess Circuit
Court.
All sitting. All concur.
29
COUNSEL FOR APPELLANT:
Aaron Reed Baker
Department of Public Advocacy
COUNSEL FOR APPELLEE:
Daniel J. Cameron
Attorney General of Kentucky
Matthew Robert Krygiel
Assistant Attorney General
30