JIMMY DAVIS V. COMMONWEALTH OF KENTUCKY

Rosemary,1 then fourteen years old, had known Davis her whole life. In

fact, she referred to him as “Uncle Jimmy;” he was a family friend of her

parents. In 2015, Rosemary had a cheerleading accident which led to a

diagnosis of chronic pain, as well as fibromyalgia. Since that time, Rosemary

has struggled with constant pain. She admitted that during the time of the

incident underlying this case, she sought illicit drugs from others to alleviate

this pain. Davis told her that he could get her pain pills if she needed them.

On December 17, 2015, Rosemary called Davis to help her get pain pills.

He told her he would not be able to get the pills till the next day. On December

18, 2015, Rosemary met Davis at an abandoned restaurant down the street

from her home. Per Davis’s instructions, she deleted the text messages from

him on her phone, turned off her phone so her mother could not track them,

and left the phone in a hiding place at the restaurant. He then drove her to his

home. In the car ride there, he gave her half a pain pill that he did not

specifically identify and shared a marijuana cigarette with her. He told her

that he had cancer “in his area,” and required surgery to have “it removed.”

When they arrived at his house, he showed her to the back room where

he laid cocaine out on a white glass plate. He snorted some with a cut straw

1 We utilize the pseudonym used by the parties in their briefing to this Court, in accordance with our procedures, to protect the privacy of the victim in this case.

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and instructed her to do the same. She did. He then told her that they needed

to go to his sister’s home where Rosemary would need to help him find the

pills. They arrived at the house and he took her to the bedroom and told her to

start searching drawers for the pills.

While she was searching he walked out of the room. He walked back in

and asked Rosemary if she wanted to “give him his last chance at manhood.”

Rosemary testified that she knew he meant he wanted to have sex and she told

him no. He then said, “I didn’t want to have to do this.” When she turned

back around again, he had a gun. He showed her that it was loaded and

ordered her to undress. He had brought a plastic bag with the gun, duct tape,

rope, and a razor blade. He tied her hands with the duct tape and rope and

tied her to the bedpost. He forced her to perform oral sex on him and

performed oral sex on her. He then attempted to penetrate her vaginally with

his penis but was unable to become fully erect. Rosemary begged him to stop

and he became angrier and angrier. He said that he was not able to “get fully

hard” because of the cocaine. He then used his fingers to guide his penis

inside her but was never able to ejaculate. While he continued to force himself

upon Rosemary, he told her that if he couldn’t have her mom, he would have

her, that she looked just like her mother, and he had been waiting so long to

do this.

Eventually, Davis removed himself from Rosemary, cut her bindings with

a razor blade, and forced her to clean herself out. He drove her back to the

restaurant. He told her he knew she was going to “tell on him,” and repeatedly

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apologized. She assured him that she would not tell. When they arrived at the

restaurant, Rosemary recovered her phone and ran home. Rosemary was

eventually transported to the hospital via ambulance and underwent an

examination by a Sexual Abuse Nurse Examiner (SANE). Rosemary identified

several items in the house to investigators, including a blanket Davis placed on

the bed before he raped her, that were later recovered using her description.

The duct tape was also found in Davis’s home. Photographs were taken of

injuries on Rosemary’s wrists from where she had been restrained.

The jury convicted Davis of: first-degree rape; first-degree sodomy;

second-degree unlawful transaction with a minor; second-degree unlawful

imprisonment; possession of drug paraphernalia; and possession of marijuana.

The jury recommended twenty years on both first-degree rape and first-degree

sodomy, five years on second-degree unlawful transaction with a minor, twelve

months on second-degree unlawful imprisonment, six months on possession of

drug paraphernalia, and thirty days on possession of marijuana. The jury

recommended that the felony sentences be served consecutively for a total 45-

year sentence. The court sentenced Davis according to the jury’s

recommendation.

II. ANALYSIS

A. THE TRIAL COURT DID NOT ERR IN DENYING DAVIS’S MOTION TO DISQUALIFY THE MCCRACKEN COUNTY COMMONWEALTH ATTORNEY’S OFFICE.

Davis was appointed representation from the Paducah Trial Office of the

Kentucky Department of Public Advocacy (DPA). He was originally tried in

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April 2017, ending in a mistrial, and then tried again in November of that same

year. During both trials, Robin Irwin personally represented Davis. However,

between the first and second trials, another public defender, Douglas Moore,

transitioned from the Paducah DPA office to the McCracken County

Commonwealth Attorney’s office. During the first trial, Moore had worked in

the Paducah DPA office. Prior to the second trial, Moore went to work at the

McCracken County Commonwealth Attorney’s office. He never personally

represented Davis at any point nor did he personally participate in Davis’s

prosecution. However, Davis asserted in his motion to disqualify the entire

McCracken County Commonwealth Attorney’s Office that Moore “worked

closely and consulted with [Irwin] on many cases, especially those cases

headed for trial.” Davis’s motion alleged that “Moore participated personally

and substantially in this matter by consulting with [Irwin] on various aspects of

the case.”

The trial court heard argument on the motion. Notably, neither party

presented affidavits, testimony, or other substantive proof on the motion.

Davis argued that Irwin had discussed Davis’s case with Moore and allowing

the McCracken County Commonwealth Attorney’s office to continue to

prosecute the case while Moore worked there was unfair and violated Davis’s

constitutional rights. In response, the Commonwealth argued that there must

be a showing of actual prejudice to disqualify the office. The prosecutor on

Davis’s case, Leigh Ann Dycus, stated, both in her response to the motion and

at the hearing, that Moore had been properly screened from the case, the file

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and pleadings were kept in the trial prosecutor’s office, and Moore had “not

reviewed the file or been privy to discussions about the case.” At the hearing,

she also noted that Moore would leave the room when Davis’s case was

discussed during office meetings.

The circuit court denied Davis’s motion. Citing to Calhoun v.

Commonwealth, 492 S.W.3d 132 (Ky. 2016), the court determined that the

relevant standard is actual prejudice. The judge made a factual finding that

there had been adequate screening. The court also noted that if this

circumstance was sufficient to disqualify the entire Commonwealth Attorney’s

office, then it would have to be disqualified from every case active during the

time Moore was employed at the DPA.

1. Standard of Review

A trial court’s decision to deny or grant a motion to disqualify a

prosecutor’s office is subject to review for abuse of discretion. See Barnett v.

Commonwealth, 979 S.W.2d 98, 102 (Ky. 1998). Under this standard, we

decide “whether the trial judge’s decision was arbitrary, unreasonable, unfair,

or unsupported by sound legal principles.” Mason v. Commonwealth, 559

S.W.3d 337, 339 (Ky. 2018) (quoting Lopez v. Commonwealth, 459 S.W.3d 867

972-73 (Ky. 2015)).

2. Statutory disqualification

Kentucky Revised Statute (KRS) 15.733 provides that “[a]ny prosecuting

attorney shall disqualify himself in any proceeding in which he or his spouse,

or a member of his immediate family whether individually or as a fiduciary ...

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[h]as served in private practice or government service, other than as a

prosecuting attorney, as a lawyer or rendered a legal opinion in the matter in

controversy.” KRS 15.733(2). The statute also provides that “[a]ny prosecuting

attorney may be disqualified by the court in which the proceeding is presently

pending, upon a showing of actual prejudice.” KRS 15.733(3).

There are multiple avenues of disqualification pursuant to this statute.

The statute lists several specific grounds for disqualification, including the

portion cited (“[h]as served in private practice or government service, other

than as a prosecuting attorney, as a lawyer or rendered a legal opinion in the

matter in controversy”). But, there is also a catch-all provision that allows for

disqualification if there is “actual prejudice.” See KRS 15.733(3). “A

prosecuting attorney may be disqualified upon a showing of actual prejudice.”

Clayton v. Commonwealth, 786 S.W.2d 866, 869 (Ky. 1990) (citing KRS

15.733(3)).

The statutory disqualification here, upon Davis’s motion, seems to

disqualify Moore from any sort of participation in Davis’s prosecution.

According to attorney Irwin, Moore did “render[] a legal opinion” in this matter

when Irwin and Moore discussed the case and trial strategy. The

Commonwealth did not rebut this claim, instead relying upon the fact that

Moore was appropriately screened from the prosecution. Thus, it seems

consistent that the prosecuting office also deemed that Moore was disqualified

from any participation in this prosecution pursuant to statute.

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3. Ethical disqualification

Additionally, ethically, an attorney must withdraw from representation if

there is a conflict of interest that prevents that representation. Kentucky

Supreme Court Rule (SCR) 3.130(1.11) provides that “a lawyer who has

formerly served as a public officer or employee of the government... shall not

otherwise represent a client in connection with a matter in which the lawyer

participated personally and substantially as a public officer or employee,

unless the appropriate government agency gives its informed consent,

confirmed in writing, to the representation.” SCR 3.130(1.11(a)). Additionally,

“a lawyer currently serving as a public officer or employee ... shall not...

participate in a matter in which the lawyer participated personally and

substantially while in private practice or nongovernmental employment, unless

the appropriate government agency gives its informed consent, confirmed in

writing.” SCR 3.130(1.11(d)).

The requirements under the ethical rule, in contrast to part of the

statutory rule, do not require a showing of actual prejudice. Instead, it merely

requires that the attorney in question “participated personally and

substantially” in the matter during the previous employment in question.

Thus, clearly under the plain language of this rule, any public defender who

represented a defendant and then moved to the Commonwealth’s Attorney’s

office could not participate in the prosecution of that defendant in that matter.

It is questionable to this Court whether Davis even made any preliminary

showing that Moore “participated personally and substantially” in Davis’s

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defense. Irwin presented one email to the trial court showing he had sent an

agreed stipulation to Moore but did not cite any specific conversations

regarding trial strategy or case-specific issues. However, because Moore was

clearly statutorily disqualified here, we must still reach the question of whether

that disqualification is imputed to the entire office. Thus, we decline to delve

further into whether Davis made a sufficient preliminary showing of personal

and substantial participation to require disqualification under SCR

3.130(1.11), or what such a showing generally requires.

4. Imputation of any disqualification

The Supreme Court commentary to SCR 3.130(1.11), however,

specifically noted: “Because of the special problems raised by imputation

within a government agency, paragraph (d) does not impute the conflicts of a

lawyer currently serving as an officer or employee of the government to other

associated government officers or employees, although ordinarily it will be

prudent to screen such lawyers.” We see no reason why the concerns related

to ethical disqualifications would not extend to statutory disqualifications. We,

therefore, hold that the same analysis is necessary to determine whether the

statutory disqualification extends to the entire prosecuting office. We must,

then, examine further our precedent on the imputation of ethical

disqualifications in prosecuting offices.

Our Court has held:

[A] former government attorney must be disqualified from matters involving a prior representation. But the entire office in which that attorney works is not disqualified as long as the disqualified attorney is appropriately screened. Disqualification of the entire

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prosecuting office is not necessary absent special facts, such as a showing of actual prejudice; or, perhaps the screening procedures are ineffective.

Calhoun, 492 S.W.3d at 137. We noted that “great pains should be taken to

ensure no confidential information is gathered from a defendant’s former

counsel[] and the former counsel is not given any opportunity, no matter how

small, to participate in the action.” Id. (footnote omitted). In determining

whether the entire prosecuting office should be disqualified, “a trial court

should [] focus on whether the screening procedures are appropriate and

adequate.” Id.

In Calhoun, there was no evidence presented that the former public

defender participated in the prosecution. Id. at 138. “So evidence of actual

prejudice is absent.” Id. The Court noted that “[a]ll indications” were that the

former public defender “was appropriately screened from Calhoun’s

prosecution.” Id. The Court specifically stated that the rules of professional

conduct did not “support^ a per se rule of disqualification for an entire

prosecution office after a simple showing of substantial and personal

participation in the defendant’s case.” Id.

“[F]ederal courts have unanimously held that one prosecutor’s bias does

not automatically infect every other member of the prosecutorial office.”

Commonwealth v. Ryan, No. 2002-SC-0852-MR, 2002-SC-0866-MR, 2003 WL

22415751, at *5 (Ky. Oct. 23, 2003) (citing United States v. Vlahos, 33 F.3d

758, 763 n.5 (7th Cir. 1994) (quoting United States v. Caggiano, 660 F.2d 184,

191 (6th Cir. 1981))). “Indeed, these courts have noted that a blanket

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disqualification of an entire prosecutorial office without a showing of actual

prejudice offends the doctrine of separation of powers.” Ryan, 2003 WL

22415751 at *5 (citation omitted); see also Mahmoud v. Commonwealth, Nos.

2006-CA-001838-MR and 2006-CA-001903-MR, 2009 WL 960721, at *12 (Ky.

App. Apr. 10, 2009) (“Without a showing of actual prejudice, the trial court

properly denied the motion to disqualify [the Commonwealth’s attorney] and

his office from the prosecution.”).

Screening procedures are important and relevant to a trial court’s inquiry

into imputation of a disqualification. However, this importance is because

proper screening procedures prevent actual prejudice. Thus, if a defendant can

show that those screening procedures were inadequate to keep the former

public defender from providing confidential information on the case or having

any effect on the prosecution, it is relevant to show that the prosecutor’s office

did not fulfill its duty in appropriately screening that attorney from the case.

However, absent that actual prejudice, we cannot hold that an entire

prosecutor’s office is disqualified from prosecuting the case. Such would be a

potential overreach into the executive branch of government, although such a

holding would be arguably constitutionally permissible given the Supreme

Court’s jurisdiction and power over the practice of law. We caution

prosecutors’ offices that screening procedures are essential in preventing these

issues and the appearance of impropriety, as well as ensuring fair proceedings

and protecting the due process rights of defendants.

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Here, Davis made no showing of actual prejudice. His attorney’s

statements to the court were sufficient to meet the disqualification standard for

Moore himself. We note briefly Davis’s argument that there was no sworn

testimony as to the screening procedures in place at the prosecutor’s office and

his ensuing argument that the failure to hold an evidentiary hearing was a

violation of due process. However, Davis also presented no sworn testimony

substantiating his claim for even disqualifying Moore. Thus, if the

representation to the court by the prosecuting office was insufficient, then,

arguably, the representations made by defense counsel to verify the motion

were also insufficient. Pursuant to SCR 3.130(3.3), a lawyer is prohibited from

knowingly “makfing] a false statement of fact or law to a tribunal or fail[ing] to

correct a false statement of material fact or law previously made to the tribunal

by the lawyer.” Thus, if either defense counsel or the prosecuting attorney

made such, a false statement as to the grounds or response to a motion

requiring disqualification, they would not only be subject to censure by the

trial court but would also be subject to serious sanctions by the bar

association. Consequently, unless there is an allegation that either attorney

knowingly falsified this information before the trial court, we consider counsels’

arguments on this issue sufficient for the trial court’s ruling.

We do not limit the trial court’s power to solicit sworn testimony, as

necessitated by the motion, however. Davis argues that by failing to hold an

evidentiaiy hearing (when neither party at that point requested the opportunity

to submit substantive evidence such as witnesses or exhibits), the trial court

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violated his due process rights. 2 “At its most basic level, procedural due

process ensures that one is not unfairly deprived of his life, liberty, or property

without receiving a hearing, adequate notice, and a neutral adjudicator.” White

v. Boards-Bey, 426 S.W.3d 569, 574 (Ky. 2014) (citing Goldberg v. Kelly, 397

U.S. 254, 267 (1970)). The question then becomes whether the trial court’s

decision on the merits of the motion, based on unsworn argument from both

counsel, was meaningful due process.

In Gilbert v. Commonwealth, we noted that, on the issue of competency to

stand trial, “the Supreme Court of the United States has held that due process

requires an evidentiary hearing whenever there is sufficient doubt of

competency as to require further inquiry on the question.” 575 S.W.2d 455,

456 (Ky. 1978) (citing Drope v. Missouri, 420 U.S. 162 (1975) and Pate v.

Robinson, 383 U.S. 375 (1966)). “Kentucky protects this right by requiring

such a hearing if there are reasonable grounds to believe the defendant is

incompetent.” Gilbert, 575 S.W.2d at 456 (citations omitted). Here, we find

that Davis’s due process rights were sufficiently protected. His motion failed to

raise any “reasonable grounds” that would have required further evidence.

Both attorneys were ethically obligated to be honest with the court, thus

2 We also note a prior statement, in dicta from this Court: “An evidentiary hearing must be held and the trial court must carefully weigh the evidence suggesting bias on the part of the prosecutor’s entire office.” Commonwealth v. Ryan, No. 2002- SC-0852-MR, 2002-SC-0866-MR, 2003 WL 22415751, at *4 (Ky. Oct. 23, 2003) (citing Summit v. Mudd, 679 S.W.2d 225 (Ky. 1984) and Whitaker v. Commonwealth, 895 S.W.2d 953, 955 (Ky. 1995)). This case relied upon cases since overturned by Calhoun; however, to clarify, a trial court must hear and examine the merits of any motion to disqualify. However, the decision of what evidence to allow and the final decision on the motion is subject to an abuse of discretion standard.

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providing more indicia of reliability than other unsworn testimony. Most

importantly, Davis did not request an opportunity to present further proof and

was then denied by the trial court. From our review of the hearing, defense

counsel made a fleeting remark that the court needed to examine the screening

procedures but did not make any request to call witnesses, present affidavits,

or even require the same of the prosecution. Given the specific facts of Davis’s

case, we hold that his due process rights were protected.

Davis also argues that the Commonwealth’s Attorney’s Office was

deficient in response to the motion to disqualify because it failed to: provide a

list of cases in which Moore participated; present a written screening policy;

send a letter to Moore’s former clients; or send a screening policy to the trial

judges. However, Davis attempts to create bright-line ethical rules, a laundry

list of “musts,” to meet the screening requirement. We decline to accept such a

list of “to-dos.” Instead, we leave it to the discretion of each trial judge to

examine the facts of each situation and determine whether the screening

procedures were adequate to prevent actual prejudice.3 Indeed, trial judges are

also imbued with the responsibility to report ethical violations should there be

such proof presented.

Regardless, without further “special facts”, there is nothing requiring

disqualification of the entire prosecuting office. Davis has made no such

3 Even if we looked to the screening procedures here as dispositive, the trial court made a factual finding that the screening procedures in this case were adequate. Such a finding is subject to clear error review. See Oliphant v. Ries, 460 S.W.3d 889, 897 (Ky. 2015) (citing Miller v. Eldridge, 146 S.W.3d 909, 915 (Ky. 2004)). Davis has presented nothing for us to find such error.

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showing and the trial court did not abuse its discretion in denying the motion

to disqualify the McCracken County Commonwealth’s Attorney’s office. Davis

requests that this Court extend the holding of Calhoun and require the burden

to shift to the prosecution to rebut a “presumption” of shared inter-office

confidences between the former defender and current prosecutor. He argues

that, based on Irwin’s statements that he consulted with Moore, he has met his

burden of proving Moore provided counsel on this case and it is now the

Commonwealth’s Attorney’s burden to prove otherwise. We decline to make

such a holding today. While we understand that other jurisdictions have

adopted such a process, our precedent shows that the real concern in

disqualifying an entire prosecuting office is actual prejudice. Thus, while it

would behoove the Commonwealth to create and implement screening policies,

and then provide those policies to their local DPAs and judges, we, at this time,

decline to hold such as a requirement, and that it must be effectively proven to

refute a motion to disqualify.

In conclusion, a defendant need not show actual prejudice as grounds

for disqualification of a particular prosecutor under the specific statutory

grounds in KRS 15.733 or under SCR 3.130(1.11). However, actual prejudice

must be shown to substantiate disqualification of a particular prosecutor under

KRS 15.733(3) or to impute the disqualification to the entire prosecuting office.

Davis failed to meet the burden of proof on his motion to disqualify the entire

McCracken County Commonwealth’s Attorney’s Office. We find no abuse of

discretion in the trial court’s denial of the motion.

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B, THE TRIAL COURT DID NOT IMPROPERLY LIMIT DAVIS’S CROSSEXAMINATION OF WITNESSES.

Davis conducted a lengthy cross-examination of Rosemary. Counsel

asked Rosemaiy about: her relationship with her boyfriend, her sexual history

with her boyfriend, how she had lied about her sexual history with that

boyfriend in front of her mother, her drug use with her boyfriend and Davis,

memory of the event, a “dream” she had that Davis was going to do this to her,

the physical evidence, her memory of any identifying marks and tattoos on

Davis’s body, how she had deleted the messages with Davis off of her phone,

the conflicting narrative her boyfriend gave about seeing her that day, and her

attempt to steal pain pills. However, there were two specific facts to which the

prosecution objected and the court prohibited the defense from inquiring

further.

First, while questioning Rosemary about her drug use, defense counsel

asked her if she used Adderall. Rosemaiy stated that she did not know what

Adderall was. Defense counsel began to ask, “Have you ever posted on

Facebook—” and the prosecution objected. At the bench conference, Davis

argued that Rosemary had posted on her Facebook page, less than a month

after the assault, that she was “getting high off of Adderall.” Defense argued

that this post was relevant to her ability to recall. The Commonwealth stated

that the post actually consisted of song lyrics and was inadmissible character

evidence. Rosemary had admitted to drug use so there was no relevance to

this post. The circuit court sustained the objection, allowing the defense to ask

Rosemary about use of Adderall on the day of the rape but no further.

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Second, defense counsel asked Rosemary about Davis’s identifying

marks and tattoos. She confirmed that she told investigators that she was not

really looking for identifying marks and could not clearly recall everything. She

stated that she remembered a shoulder tattoo, that he may have had one on

his chest, but was unsure of any others. In its case, the defense called

Rosemary’s mother, Charlotte, who had a previous relationship with Davis.

Counsel asked her if Davis had any tattoos. She answered in the affirmative.

Counsel then asked if Davis had a tattoo on his abdomen, above his penis.

She said: “I don’t— ... —not that I - I don’t know. I don’t know. I don’t know.”

Defense counsel asked to approach the witness with a photograph; he wanted

to show Charlotte a photograph, that had not been entered into evidence at any

time or identified by anyone, of Davis’s alleged abdomen area with this tattoo.

The parties went to the bench. The prosecution argued, “She answered no, she

doesn’t know.” Defense counsel stated he wanted to “refresh her memory.”

The court denied the request, stating defense was attempting to “introduce

extrinsic evidence of a collateral matter” and the defense was “limited by

[Charlotte]’s response.”

Davis now argues that the trial court unconstitutionally limited his right

to cross-examine witnesses against him. He claims both of these issues went

to Rosemary’s credibility as a witness.

A defendant “has a right under the federal Constitution (and the

Kentucky Constitution as well) to ‘a meaningful opportunity to present a

complete defense.’” Montgomery v. Commonwealth, 320 S.W.3d 28, 41 (Ky.

17

2010) (quoting Crane v. Kentucky, 476 U.S.683, 690 (1986) (quoting California

v. Trombetta, 467 U.S. 479, 485 (1984))). This opportunity includes the “right

to cross-examine the witnesses against him.” Montgomery, 320 S.W.3d at 41

(citing Davis v. Alaska, 415 U.S. 308 (1974)). “[A] criminal defendant states a

violation of the Confrontation Clause by showing that he was prohibited from

engaging in otherwise appropriate cross-examination designed to show a

prototypical form of bias on the part of the witness, and thereby ‘to expose to

the jury the facts from which jurors ... could appropriately draw inferences

relating to the reliability of the witness.’” Olden v. Kentucky, 488 U.S. 227, 231

(1988) (quoting Delaware v. VanArsdall, 475 U.S. 673, 680 (1986) (quoting

Davis v. Alaska, 415 U.S. 308, 318 (1974))).

However, “trial courts retain broad discretion to regulate cross-

examination.” Yates v. Commonwealth, 430 S.W.3d 883, 901 (Ky. 2014)

(quoting Bratcher v. Commonwealth, 151 S.W.3d 332, 342 (Ky. 2004) (quoting

Commonwealth v. Maddox, 955 S.W.2d 718, 721 (Ky. 1997))). “[A] trial court

may, of course, impose reasonable limits on defense counsel’s inquiry into the

potential bias of a prosecution witness, to take account of such factors as

‘harassment, prejudice, confusion of the issues, the witness’ safety, or

interrogation that [would be] repetitive or only marginally relevant].]”’ Olden,

488 U.S. at 232 (quoting Van Arsdall, 475 U.S. at 679).

Despite this discretion, the defendant is entitled to “develop ‘a reasonably

complete picture of the witnesses] veracity, bias and motivation.’” Yates, 151

S.W.3d at 342 (quoting Bratcher, 151 S.W.3d at 342). “Defendants cannot run

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rough-shod, doing precisely as they please, simply because cross-examination

is underway. So long as a reasonably complete picture of the witness’ veracity,

bias and motivation is developed, the judge enjoys power and discretion to set

appropriate boundaries.” Maddox, 955 S.W.2d at 721 (quoting U.S. v. Boylan,

898 F.2d 230, 254 (1st Cir. 1990)). A defendant can show a violation of the

constitutional right to cross-examine if “[a] reasonable jury might have received

a significantly different impression of [the witness] credibility had [defendant’s]

counsel been permitted to pursue his proposed line of cross-examination.”

Davenport v. Commonwealth, 177 S.W.3d 763, 770 (Ky. 2005) (quoting Van

Arsdall, 475 U.S. at 680). “The presentation of evidence as well as the scope

and duration of cross-examination rests in the sound discretion of the trial

judge.” Maddox, 955 S.W.2d at 721 (quoting Moore v. Commonwealth, 771

S.W.2d 34, 38 (Ky. 1988)).

1. Rosemary’s Facebook post mentioning Adderall

Davis was permitted to ask Rosemaiy about her extensive drug use. But

he was not permitted to utilize a Facebook post to either impeach Rosemary’s

answer or refresh her memory of such drug use.4 Utilizing the Facebook post

to impeach Rosemary’s answer about a specific instance of using Adderall

would have been improper. “Specific instances of the conduct of a witness, for

the purpose of attacking or supporting the witness’ credibility ... may not be

proved by extrinsic evidence.” Kentucky Rule of Evidence (KRE) 608(b). The

Facebook post was also irrelevant to refresh her memory because she clearly

4 Importantly, defense counsel asked Rosemaiy about her drug use, he had not yet asked her about ever posting about the drug, generally.

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stated she did not know what Adderall was when asked if she had used it in

the past. She was not asked about whether she had ever used the word

“Adderall” in her Facebook posts. Thus, the post would not have been able to

refresh her memory of any past use of the drug in question.

Davis also seems to argue that this Facebook post was substantively

relevant, because it tended to show that Rosemary’s memory was less than

clear and she was not “credible”. However, this argument must fail. The

Commonwealth and Rosemary freely admitted that Rosemary had used drugs,

both before and on the day of the incident. Thus, any additional effect that

Adderall may have had on her memory a month later would have been

cumulative, at best. Any argument that a post about Adderall bearing on

Rosemary’s truthfulness is hardly even tangential. Thus, even if the post was

relevant as Davis argues, the trial court did not err in prohibiting him from

further questioning this drug use with the Facebook post. The evidence would

have been cumulative, repetitive, and marginally relevant; additionally, from

the rest of the evidence, the jury’s impression of Rosemary would not have been

significantly altered by the introduction of this evidence.

2. The photograph of Davis’s tattoo

First, we must note that Davis was not prohibited from asking about this

particular tattoo. Defense counsel asked Rosemary what tattoos she

remembered; he questioned her about whether her eyes were ever covered,

leading to the insinuation that, if her recollection of events was accurate, she

would have seen this tattoo. Rosemary openly stated that she could not recall

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every mark on Davis’s body. However, the problem arose because defense

counsel had no substantive proof of Davis’s tattoo. Davis chose not to exercise

his right to testify. So, defense counsel attempted to prove the existence of this

tattoo through Charlotte. But she stated she did not know of any such tattoo.

The defense is bound by that answer. They could have attempted to introduce

evidence of this tattoo another way, either through medical records, testimony

of another party, or Davis’s own testimony. But no such evidence was offered.

Thus, the right to cross-examine was not limited here, impermissibly or

otherwise. Defense counsel simply did not like the answers given and wanted

to use the opportunity to present substantive proof. The photograph in

question was never authenticated. There was no way to let the jury know

whether the photograph showed Davis. Charlotte did not say that she could I

not recall what Davis’s naked body looked like; she stated that she did not

know about this tattoo. There is a distinct difference and a photograph cannot

“refresh the memory” of a witness who has unequivocally stated she does not

know, nor has ever known, the answer to the question at issue. We find no

error in the limitation of this line of questioning.

For the foregoing reasons, we affirm in all respects the judgment and

sentence of the McCracken Circuit Court.