Judge’s direction to defendant to answer prosecutor’s question did not violate Fifth Amendment and opening door by defendant did not require notice per KRE 404(c): DILLMAN V. COM (COA 6/6/2008)

DILLMAN V. COM
CRIMINAL:  Fifth Amendment; KRE 404(b)
2007-CA-000455
PUBLISHED: AFFIRMING
PANEL: THOMPSON PRESIDING; KELLER, GRAVES CONCUR
PULASKI COUNTY
DATE RENDERED: 6/6/2008

Defendant’s Fifth Amendment privilege against self-incrimination was not violated when the TC ordered him to respond to the prosecutor’s question while testifying. In this drug trafficking prosecution, Dilman testified that he was merely an uncompensated middleman for a friend. When asked who was the supplier, Dilman invoked the Fifth Amendment. Given that Dillman’s own testimony placed the prosecutor’s question within the scope of relevancy, TC properly ordered him to respond.

Dillman’s assertion of an entrapment defense was not sufficient to support the introduction of his prior unsworn out-of-court statement. Dillman’s prior statement was made several years prior to the dates he committed the charged offenses. The introduction of the prejudicial prior statement substantially outweighed its probative value. However, CA concluded that Dillman “opened the door” for the introduction of his prior statement, and therefore, affirmed the trial court. Under the circumstances, the Commonwealth did not violate the notice requirement of KRE 404(c). As demonstrated to the trial court, the Commonwealth acted in as prudent a manner as possible under the circumstances. The Commonwealth disclosed the prior statement at the earliest feasible time in which it believed the evidence was relevant. Finally, Defendant was not entitled to a facilitation instruction.

Digested by Scott C. Byrd
www.OlginandByrd.com