TRIAL PROCEDURE & EVIDENCE: Proffer of expected testimony found by SCOKY to be too vague to preserve error on appeal (Eric Henderson vs. Commonwealth of Kentucky SC Published 8/21/2014)

From the former practice of preserving testimony with an avowal to the KRE 103 proffer of expected testimony, a trap is laid  for the need for specificity and clarity  falling short of the actual avowal of the testimony of yesteryear being abandoned for the cause of convenience and time.  Here the judge made a clearly erroneous trial ruling excluding testimony but for want of a good enough proffer of the expected testimony the error remains.  Practitioners be forewarned, and do not let time and inconvenience thwart your efforts to preserve the error, even in the midst of the trial because after the trial there is the appeal.

Historical marker for the "Great Dissenter", Justice John  Harlan, outside the Boyle County Court House in Danville, KY.

Historical marker for the “Great Dissenter”, Justice John Harlan, outside the Boyle County Court House in Danville, KY.

Evidence, KRE 103 Offer of Proof, Bad Acts Evidence, and Preservation of Issue for Appeal
Eric Henderson vs.  Commonwealth of Kentucky
SC Published 8/21/2014; Opinion by Minton Affirming
Questions Presented:  Criminal Law. KRE 103. Issues include whether defendant’s proffer of evidence was sufficient to preserve his argument on appeal under KRE 103.

Appealing to the Court of Appeals, Henderson challenged the trial court’s exclusion of prior-bad-acts evidence and hearsay testimony. Regarding the prior-bad-acts evidence, the Court of Appeals—while acknowledging the trial court erred by excluding the evidence—concluded Henderson did not properly preserve the issue for appellate review under Kentucky Rules of Evidence (KRE) 103(a)(2). Specifically, the Court of Appeals held it could not determine with any degree of certainty what the content of the excluded testimony would have been, making it impossible to assess the impact of the error. Going further, the Court of Appeals held Henderson similarly failed to preserve his challenge to the trial court’s ruling excluding Harris’s hearsay testimony but noted that, in any event, the excluded hearsay testimony would have been cumulative. The Court of Appeals affirmed the judgment. 

We accepted discretionary review of this case primarily to consider whether, in light of the trial court’s adverse evidentiary ruling excluding proposed testimony, Henderson’s counsel’s use of imprecise, general language satisfied KRE 103(a)(2)’s offer-of-proof requirement sufficiently to preserve this issue for appellate review. We affirm the decision of the Court of Appeals because we agree that counsel failed to make an adequate offer of proof.

Before this Court, Henderson raises two allegations of error: (1) the trial court erroneously excluded testimony of Henderson’s prior altercation withHarris and, additionally, the Court of Appeals improperly held the issue was unpreserved for review under KRE 103(a)(2); and (2) the trial court improperly excluded Harris’s hearsay testimony regarding turning Henderson in to thepolice. Because of these errors, Henderson argues he was denied the opportunity to present a complete defense. Of course, the Commonwealth agrees with the holding of the Court of Appeals that the initial issue wa sunpreserved and, moreover, argues any error associated with Harris’s excluded hearsay testimony was harmless. For the reasons stated below, we agree withthe Commonwealth and affirm the Court of Appeals.

At trial, Henderson attempted to testify about an altercation he had with Harris approximately two weeks before the club incident. The Commonwealth timely objected, and the trial court excluded the evidence because Henderson had not provided notice of the prior-bad-acts evidence to the Commonwealth as required by KRE 404(c). At the outset, we should be clear: this ruling was erroneous. By its plain language, KRE 404(c) requires notice to be provided only by the Commonwealth, not the defense.3 Our caselaw’s mandate that only the Commonwealth provide notice is manifest. 4That being said, we are unable to determine the extent of the trial court’s error because of Henderson’s vague characterization of the excluded testimony.

Historically, to preserve for review a trial court’s ruling excluding evidence, a party was required to present avowal testimony. 5From the stand, outside the presence of the jury, the witness would provide the testimony he would have given had the trial court allowed it. Of course, this provided a clear record for review; but perhaps more importantly, as much as the practice was justified for sake of clarity, it was equally cumbersome and time-consuming. nd the practice of presenting avowal testimony was out of step with both the federal courts and the vast majority of state courts.

In 2007, this Court amended several of our evidentiary rules, 6with the explicit purpose of bringing the rules into uniformity with their federal counterparts. The case before us today revolves around the alteration made to KRE 103(a)(2). In its current state, the entirety of KRE 103 reads:

(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected; and

(1) Objection. If the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or

(2) Offer of proof. If the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

Read as a whole, to preserve a trial court’s ruling for appeal, a substantial right7of the party must be affected and, relevant to the present case, the substance of the excluded testimony must be provided to the trial court. Notably, KRE 103(a)(2) now allows an offer of proof rather than requiring “the witness [] make a specific offer of his answer to the question.” An offer of proof, generally described as a lawyer “adducing what that lawyer expects to be able to prove through a witness’s testimony[, ]” 8serves dual purposes. First, the offer of proof provides the trial court with a foundation to evaluate properly the objection based upon the actual substance of the evidence. And, of equal importance, an offer of proof gives an appellate court a record from which it is possible to determine accurately the extent to which, if at all, a party’s substantial rights were affected.

The problem with Henderson’s offer of proof and his reliance on Weaver is the absence of any meaningful description of the content of the excluded testimony. 14By name, an offer of proof must contain some modicum of proof Here, Henderson’s counsel simply made vague references to the general theory of defense but did not highlight what Henderson would actually say if given the chance to testify.

Generally speaking, an offer of proof must not be “too vague, general, or conclusory.” Typically, the context of questioning adequately indicates the substance of the excluded testimony in situations where the answer to the question is known, e.g. defense asks the defendant whether he was at the scene of the crime on a particular night, or where testimony has been received, but subsequently stricken.

In its current form, KRE 103(a)(2) is intended to be flexible but that flexibility does not diminish the fact that its compliance is mandatory. A proper offer of proof is vital, not only to the trial court, but also in providing the opportunity for sound appellate review. To this end, Henderson’s offer of proof highlights why KRE 103(a)(2) requires what it does. As we stated before, the trial court undoubtedly erred in excluding the testimony on the specified grounds. Sympathetic as we may be to Henderson’s plight, we are left with little indication of how this error affected Henderson’s trial because the recordfails to show what the other-altercation evidence would have been. As a result,we are simply unable to determine if the error is reversible, harmless, orotherwise.

SC: August 21, 2014 Summaries of Published Opinions from Supreme Court of Ky

The Supreme Court of Kentucky released its summary of published opinions for August 21, 2014.

These published opinions included the following injury law, tort, insurance, and civil decisions:

IMMUNITY

Virginia Gaither (Administratrix and Personal Representative of the Estate of Lebron Gaither, Deceased) v. Justice & Public Safety Cabinet, Commonwealth of Kentucky; and Department of Kentucky State Police; and Board of Claims

AND

Justice & Public Safety Cabinet, Commonwealth of Kentucky; Department of Kentucky State Police v. Virginia Gaither (Administratrix and Personal Representative of the Estate of Lebron Gaither, Deceased) and Kentucky Board of Claims, Commonwealth of Kentucky

2012-SC-000835-DG August 21, 2014

Opinion of the Court by Justice Venters. Minton, C.J.; Abramson, Cunningham, Noble, and Scott, JJ., concur. Keller, J., not sitting.

Sovereign and Governmental Immunity; Board of Claims. Action filed in the Kentucky Board of Claims for damages arising from death of a confidential informant allegedly caused by the negligence of state police officers overseeing an investigation of drug trafficking. Held: 1) Kentucky Board of Claims under KRS 44.073(2) had jurisdiction over claim that decedent’s death was caused by state police officers’ negligent performance of ministerial duties within the course and scope of their employment; 2) As opposed to a “discretionary” duty or act, which necessarily requires the exercise of reason and judgment in determining how or whether the act shall be done or the course pursued, an official duty is “ministerial” when its performance is absolute, certain, and imperative, involving merely execution of a specific act; 3) a ministerial duty may arise from the obligation to comply with a common law duty, as well from the obligation to comply with the directives of an applicable statute or administrative regulation; 4) the evidence clearly supported the Board’s finding that a “known rule” within the law enforcement profession was that a confidential informant must not be used in an undercover operation

after his identity has been compromised; compliance with that rule was absolute, certain, and imperative, and thus was a “ministerial” act; 5) notwithstanding the test applied in Fryman v. Harrison, 896 S.W.2d 908 (Ky. 1995), police officers overseeing the work of a confidential informant had a “special relationship” with the informant, and thus had a duty to exercise ordinary care, including compliance with police standards for use of a confidential informant; 6) experienced prosecutors and judges were properly qualified as expert witnesses under KRS 703 to testify as to appropriate police standards in the use of confidential informants; 7) retaliation against a confidential informant by the subject of his investigative work was a known risk and foreseeable consequence of using the informant after his identity had been exposed, and therefore the criminal act of murder could not be a superseding cause of the informant’s death, relieving the police from liability for their own negligence in causing the informant’s death; and 8) KRS 44.070(5), which limits the amount that may be awarded by the Board of Claims, speaks to the time that the award is made, not the time that the claim accrued.

MEDICAL NEGLIGENCE

Phillip Tibbs, M.D., et al. v. Honorable Kimberly N. Bunnell (Judge, Fayette Circuit Court) and Estate of Luvetta Goff, et al.

2012-SC-000603-MR August 21, 2014

Opinion of the Court by Justice Scott. Cunningham and Venters, JJ., concur. Noble, J., concurs in result only. Abramson, J., dissents by separate opinion in which Minton, C.J., joins. Keller, J., not sitting.

Appellants, Phillip Tibbs, M.D., Joel E. Norman, M.D., and Barrett W. Brown, M.D., petitioned the Court of Appeals for a writ of prohibition directing the Fayette County Circuit Court to prohibit the production of an “incident” or “event” report created after the death of patient Luvetta Goff, arguing that the report fell within the federal privilege created by the Patient Safety and Quality Improvement Act of 2005, 42 U.S.C.A. § 299b-21 et. seq. The Court of Appeals granted the Appellants’ writ, but Appellants appealed to the Supreme Court as a matter of right, arguing that the Court of Appeals erroneously limited the protective scope of the privilege. The sole issue on appeal before the Supreme Court was a question of first impression regarding the proper scope of the privilege established by the Act. While upholding the issuance of the writ, the Supreme Court reversed the Court of Appeals as to proper scope of the Act, and clarified the scope of the Act’s privilege to be applied on remand.

NEGLIGENCE

Jeffrey T. Caniff v. CSX Transportation, Inc.

2012-SC-000750-DG August 21, 2014

Opinion of the Court by Justice Scott. Cunningham, Keller, Noble, and Venters, JJ., concur. Minton, C.J., dissents by separate opinion in which Abramson, J., joins. Appellant, Jeffrey T. Caniff, sought discretionary review by the Supreme

Court of the opinion of the Court of Appeals which affirmed the trial court’s order granting Appellee’s, CSX Transportation, Inc., motion for summary judgment due to Caniff’s failure to obtain an expert witness. The Supreme Court granted discretionary review and reversed and remanded the case to the trial court, holding that the trial court abused its discretion by granting summary judgment pursuant to Caniff’s failure to obtain an expert witness, as there were material facts at issue in the case. The Court held that while it would have been within the trial court’s discretion to allow an expert to testify, it was not within its discretion to require an expert in order for Caniff’s case to survive a motion for summary judgment, as the issues were within the common knowledge and experience of the jury.

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COMMONWEALTH OF KENTUCKY V. FLOYD WRIGHT. Granted Discretionary Review on 12/11/2013

COMMONWEALTH OF KENTUCKY
V.
FLOYD WRIGHT.

Granted Discretionary Review on 12/11/2013
Lower Court:  PENDLETON CIRCUIT COURT;  NO. 10-CR-00076
Lower Court Judge:  HON JAY DELANEY
Issue:  Abuse of discretion to allow jury to take prosecutor’s laptop into deliberation room to listen to audio admitted into evidence (but laptop was not) and have unfettered access to other items in laptop and internet

Supreme Court of Kentucky

Court of Appeals

[GVIEW FILE=”http://opinions.kycourts.net/COA/2011-CA-000759.pdf”]

TIM DAVIS AND TIM DAVIS & ASSOCIATES, INC. V. JOHN J. SCOTT AND WHITLOW & SCOTT 2013-SC-000682-DG

TIM DAVIS AND TIM DAVIS & ASSOCIATES, INC.
V.
JOHN J. SCOTT AND WHITLOW & SCOTT 

2013-SC-000682-DG 

Granted Discretionary Review on 11/13/2013
Lower Court:  HARDIN CIRCUIT COURT;  NO. 10-CI-02530
Lower Court Judge:  HON DOUGHLAS M GEORGE
Issue:  Legal Malpractice

Supreme Court of Kentucky – 2013-SC-000682-DG

Court of Appeals – 011CA000431

  • Case Information at COA
  • COA Decision – Full Text
    COA – Tim Davis and Tim Davis & Associates, Inc. (collectively “Davis”) appeal from t order of the Hardin Circuit Court that denied Davis’s motion to alter, amend, or vacate the Court’s previous order dismissing, without prejudice, Davis’s legal malpractice lawsuit (“first action”), against John J. Scott and Whitlow & Scott (collectively “Scott”). Davis also appeals from the order of the Hardin Circuit Court that dismissed, with prejudice, Davis’s second legal malpractice lawsuit against Scott, Action No. 10-CI-002530 (“second action”). We reverse the trial court’s order in the first action and remand for further proceedings.  We affirm the trial court’s dismissal of the second action.

OLIVIA JOHNSON V. COMMONWEALTH OF KENTUCKY 2013-SC-000383-DG

OLIVIA JOHNSON
V.
COMMONWEALTH OF KENTUCKY 

2013-SC-000383-DG

Granted Discretionary Review on 11/13/2013
Lower Court:  JEFFERSON CIRCUIT COURT  NO.: 12-XX-00038
Lower Court Judge:  HON SEAN ROBERT DELAHANTY
Issue:

Supreme Court of Kentucky – 2013-SC-000383-DG

Court of Appeals – 2013CA000128

COUNCIL ON DEVELOPMENTAL DISABILITIES, INC. V. CABINET FOR HEALTH AND FAMILY SERVICES 2013-SC-000357-DG

COUNCIL ON DEVELOPMENTAL DISABILITIES, INC.
V.
CABINET FOR HEALTH AND FAMILY SERVICES 

2013-SC-000357-DG

Granted Discretionary Review on 11/13/2013
Lower Court:  FRANKLIN CIRCUIT COURT 10-CI-01325
Lower Court Judge:  HON THOMAS D. WINGATE
Issue:  Open Records Act

Supreme Court of Kentucky – 2013-SC-000357-DG

Court of Appeals – 2011CA000396

  • Case Information at COA
  • COA Decision – Full Text
    COA affirmed opinion and order of the Franklin Circuit Court denying its motion for declaratory judgment which sought to compel the Cabinet for Health and Family Services (“Cabinet”) to produce certain documents related to individuals who died in community placements.

ETHAN THOMAS HUGHES V. COMMONWEALTH OF KENTUCKY 2013-SC-000291-DG

ETHAN THOMAS HUGHES
V.
COMMONWEALTH OF KENTUCKY

2013-SC-000291-DG 

Granted Discretionary Review on 11/13/2013
Lower Court:  Crittendon Circuit Court
Lower Court Judge:  Judge C. RENÉ WILLIAMS
Issue:  Criminal Law, statutory rape, multiple evidentiary issues

Supreme Court of Kentucky – 2013-SC-000291-DG

Court of Appeals – 2012CA000628

  • Case Information at COA
  • COA Decision – Full Text
    COA affirmed criminal conviction of rape in the second degree pertaining to minor incapable of consent – multiple evidentiary issues on age and prior sexual activity of victim.

MARY BANKER AND BRYAN CASSIS V. UNIVERSITY OF LOUISVILLE ATHLETIC ASSOCIATION, INC. 2013-SC-000108-DG

MARY BANKER AND BRYAN CASSIS
V.
UNIVERSITY OF LOUISVILLE ATHLETIC ASSOCIATION, INC.

2013-SC-000108-DG 

Granted Discretionary Review on 11/13/2013
Lower Court:  Jefferson Circuit Court  10-CI-00991
Lower Court Judge:  Judge Charles L. Cunningham, Jr.
Issue:  Retaliatory discharge

Supreme Court of Kentucky – 20131-SC-00085-DG

Court of Appeals – 2011CA001436

LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT V. O’SHEA’S-BAXTER, LLC 2013-SC-000085-DG

LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT
V.
O’SHEA’S-BAXTER, LLC

2013-SC-000085-DG

Granted Discretionary Review on 11/13/2013
Lower Court:  Franklin Circuit Court  10-CI-00991
Lower Court Judge:  Judge Barry Willett
Issue:  Medical negligence and Daubert

Supreme Court of Kentucky – 20131-SC-00085-DG

Court of Appeals – 2011CA001583