CRIMINAL: Evidence (hearing on competency of witness; opinion testimony regarding witness’s defects; use of writings to refresh recollection): NICELY V. COM. (COA 8/8/2008)

CRIMINAL:  Evidence (hearing on competency of witness; opinion testimony regarding witness’s defects; use of writings to refresh recollection)
      DATE RENDERED: 8/8/2008

VANMETER JUDGE: Defendant’s criminal conviction sentencing him to fourteen years’ imprisonment for attempt to commit murder was affirmed by COA.

The Defendant Niceley had moved the court to hold a competency hearing to determine whether Schneider (his victim/wife whom he had shot in the head) should be disqualified from testifying, arguing that she lacked the capacity to recollect facts pursuant to KRE 601(b)(2). After a competency hearing in which the trial judge questioned Schneider, the court found that she was competent to testify.

KRE 601(a) creates a presumption that a witness is competent to testify. A trial court has the sound discretion to determine whether a particular witness is competent to testify.
      Niceley argued that the trial court denied his right to a full and fair hearing when, at the competency hearing, the judge questioned Schneider, denied Niceley the opportunity to cross-examine her, and further declined to consider medical testimony regarding Schneider’s capacity to remember the events.

disagreed.  The trial judge after accepting proposed questions from the Commonwealth and defense counsel personally examined the witness but declined to hear medical testimony, and the COA found nothing wrong with this procedure.

While Niceley cites to case law emphasizing a criminal defendant’s right to confront and cross-examine witnesses in general, he does not cite any authority which requires a trial court to permit a criminal defendant to cross-examine a witness during a competency hearing.
  Furthermore, Niceley exercised his right to cross-examine Schneider at trial.
Also, the trial court did not bar Dr. Granacher from testifying regarding Schneider’s physical and neurological deficits.  After all, the credibility of a witness testifying to relevant evidence is always at issue and evidence tending to show that “circumstances may have blurred [a] witness’ recollection of perceptions (e.g., physical injury, time lapse, etc.) is clearly admissible to reflect upon the credibility of” the witness. Robert G. Lawson, The Kentucky Evidence Law Handbook § 4.30[1] (4th ed. 2003).
  The same is true in the matter sub judice, where Niceley sought to prove that Schneider’s brain damage rendered her recall unreliable.\

However, the trial court’s refusal to let Granacher opine that the testimony of Schneider was not credible based upon these physical and neurological deficits was not error either.
With regard to the manner in which Schneider’s testimony was elicited, a writing may be used to refresh a witness’s memory if it is shown that “‘the witness has a memory to be refreshed,’ and ‘that it needs to be refreshed.’”Disabled American Veterans, Dept. of Ky., Inc. v. Crabb, 182 S.W.3d 541, 551 (Ky.App. 2005)
Ultimately, since the evidence placed before the finder of fact is the witness’s refreshed memory rather than the document used to refresh that memory, “a writing ‘cannot be read [aloud and introduced into evidence] under the pretext of refreshing the recollection of the witness.’” Lawson, supra § 3.20[7] (quoting Payne v. Zapp, 431 S.W.2d 890, 892 (Ky. 1968)).

In short, Shneider’s testimony shows that the trial court sustained each of defense counsel’s objections to the manner in which the writing was used to refresh Schneider’s memory. Further, to the extent that Niceley argues that Schneider’s memory was not truly refreshed by the writing,  the COA noted Nicely did not advance this specific argument below and if she was simply parroting what she read from the list, any error was harmless.
Niceley was given the opportunity to cross-examine Schneider regarding her testimony about bad memories from her marriage. Further, the “refreshed” testimony lasted a total of no more than twenty minutes (excluding bench conferences and the in camera hearing) during a monthlong trial. Niceley is not entitled to relief on appeal.
Digested by Michael Stevens

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