NOT TO BE PUBLISHED
MEMORANDUM OPINION OF THE COURT
A Boyd Circuit Court jury found Appellant, Alan Scott Williams, guilty of first-degree robbery and of being a first-degree persistent felony offender (PFO). For these crimes, Appellant received a life sentence. He now appeals as a matter of right, Ky. Const. § 110(2)(b), alleging that (1) the trial court erred by permitting counsel to question the credibility of witnesses and (2) the Commonwealth exceeded the scope of KRS 532.055 during the penalty phase. For the reasons that follow, we affirm in part and vacate and remand in part.
I. BACKGROUND
On December 24, 2009, Appellant robbed a Citizen's National Bank in Ashland, Kentucky. Appellant entered the bank wearing a Miami Dolphins jacket with the hood pulled over his head, a camouflage bandana covering his face, gloves covering his hands, and blue jeans. Appellant was carrying a black bag and was armed with a silver semi-automatic pistol.
Several officers from the Ashland Police Department responded to the scene of the robbery. The officers took witness statements, reviewed bank surveillance video, and canvassed the surrounding neighborhood. After the robbery, the Ashland police obtained a description of the perpetrator from witnesses and prepared a flyer. The police withheld certain information regarding specifics including whether or what amount of money was taken, the color of the pistol used, and the fact that the perpetrator was carrying a black bag.
The case remained unsolved until April 7, 2010 when Angela (Angie) Smith was found to be "noncompliant" for failing to make a monthly visit with her probation officer. That day, Smith's Probation and Parole Officer, Billy Slone, noticed Sandra (Sandy) Williams's vehicle parked outside a residence in Boyd County. Officer Slone knew that Sandy was Smith's girlfriend and that they were always together; Sandy is also Appellant's sister. Officer Slone discovered Smith inside the home and arrested her for probation violations. Smith then told Officer Slone that she had information about a crime that she would like to share. Thereafter, at the Boyd County Sheriffs Office, Smith provided Sergeant Rob Donta with written and oral statements concerning Appellant's involvement with the December 24, 2009 robbery.
Sandy arrived at the Sheriff's office shortly thereafter, and provided a separate interview and written statement outside of Smith's presence.1 Sandy confirmed the story that Smith provided to the detectives. It was at this point that Sergeant Donta, who knew nothing of the December 24th robbery, contacted Detective Brunty and Lieutenant Wilson and relayed the information the women had provided him. Brunty and Wilson confirmed that not only was the information accurate, but it was specific information that had not been released to the public. After hearing this information, Deputy Donta obtained an arrest warrant for Appellant.
On June 15, 2010, Brunty interviewed Smith and Sandy, and both women confirmed the information provided in their written statements implicating Appellant. However, once she was placed on the witness stand, Sandy explained that most of the statements she had made were simply untrue, as she was only trying to protect her girlfriend, Smith.2
A Boyd County Grand Jury indicted Appellant for first-degree robbery and first-degree PFO; a jury ultimately convicted him of both charges. The trial court then accepted the jury's recommendation and sentenced Appellant to twenty years' imprisonment, enhanced to life by virtue of the PFO conviction.
II. ANALYSIS
A. Credibility of Witnesses
Appellant argues that the trial court erred by permitting the
Commonwealth and defense counsel to ask questions about the credibility of other witnesses. Specifically, Appellant alleges that the trial court erroneously ruled that counsel could question witnesses in a manner that would require them to characterize other witnesses' testimony as untruthful—which Appellant characterizes as a Moss violation.3 This issue is unpreserved, but we will review for palpable error.4 A party claiming palpable error must show "probability of a different result or error so fundamental as to threaten a defendant's entitlement to due process of law." Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006).
At trial, both the Commonwealth and defense elicited testimony from witnesses seeking to characterize other witness's testimony as untruthful. For example, during defense counsel's cross-examination of Smith, the following exchange took place:
Defense Counsel: If [Sandy] Williams were to testify that the relationship was not good between you and her brother, and that in fact you were only allowed in his trailer when he was there that he would not let you be there by yourself, is that incorrect, is that not true?
Smith: That would not be true. Just prior to this exchange, the court held a bench conference at which it indicated this line of questioning is permissible so long as the questioning is hypothetical (i.e., "If [Sandy] Williams were to testify that. . .would she be lying?"), rather than expectant (i.e., "I expect [Sandy] Williams to testify that. . ."). Appellant cites at least eight exchanges in which the Commonwealth asks a witness to characterize another witnesses' testimony as "a lie." Appellant contends that our opinion in Moss does not permit this.
In Moss, the appellant was badgered into stating on cross-examination that a police officer had lied on the witness stand. 949 S.W.2d 579, 583 (Ky. 1997). Although the issue was unpreserved and we determined that it did not rise to the level of palpable error, we stated: "A witness should not be required to characterize the testimony of another witness ... as lying." We recognized that "[s]uch a characterization places the witness in such an unflattering light as to potentially undermine his entire testimony. Counsel should be sufficiently articulate to show the jury where the testimony of the witnesses differ without resort to blunt force." Id. Finally, we quoted with approval the Supreme Court of Rhode Island:
With few exceptions, it is improper to require a witness to comment on the credibility of another witness. A witness's opinion about the truth of the testimony of another witness is not permitted. Neither expert nor lay witnesses may testify that another witness or a defendant is lying or faking. That determination is within the exclusive province of the jury.
Id. (quoting State v. James, 557 A.2d 471, 473 (R.I. 1989)).
Here, the trial court permitted both parties to elicit testimony characterizing the testimony of other witnesses as untruthful. This is precisely what we held in Moss to be impermissible. See id. As such, it was error. However, as in Moss, we cannot say that it rises to the level of palpable error. That is, we fail to perceive how, absent these Moss violations, the jury would have come to a different verdict. In fact, this Court has an entire line of cases holding that this issue does not result in palpable error.5 Having reviewed the record in its entirety, we find no reversible error in the form of the Commonwealth's questioning of Appellant because "we conclude that the totality of the circumstances are persuasive that exclusion of the improper inquires would not have resulted in [a] different verdict[ ] in this case." Caudill v. Commonwealth, 120 S.W.3d 635, 662 (Ky. 2003).
B. Evidence of Prior Convictions
Appellant next argues that the trial court erred by admitting incorrect evidence during the penalty phase of his trial. Specifically, Appellant alleges that the jury was given the false impression that he had been convicted of more serious crimes and a greater number of crimes than he had actually been convicted of. Additionally, Appellant argues that the Commonwealth exceeded the scope of KRS 532.055 when it informed the jury of specific details regarding his prior convictions. Appellant therefore requests a new penalty phase. Appellant concedes that this issue is unpreserved, but asks that it be reviewed for palpable error. RCr 10.26; KRE 103.6
Appellant lays out several areas in which he claims that error occurred regarding the manner in which his prior convictions were conveyed to the jury. First, the Commonwealth stated that Appellant had been convicted of first-degree robbery on August 28, 1990, when in fact that charge was amended to second-degree robbery to which he pleaded guilty. Furthermore, the indictment that was given to the jury during penalty phase deliberations also charged Appellant with first-degree burglary and revealed the name of the victim. Also, the jury instructions on the PFO charge required Appellant to have been convicted of first-degree burglary on August 28, 1990.
Similarly, Appellant's indictment for Receiving Stolen Property was given to the jury during penalty phase deliberations. This indictment also included the name of the victim and thus, according to Appellant, exceeded the scope of KRS 532.055.
The Commonwealth also read to the jury four charges that Appellant had received in Arizona, all of which were felony offenses (and included the names of the victims of these crimes).7 In reality, Appellant had only pleaded guilty to one charge — armed robbery. This error was compounded by the fact that the only witness during the penalty phase, Parole and Probation Officer Nina Lawler, not only testified that Appellant had been convicted of first-degree burglary, but had also been convicted of all four of the felonies in Arizona.
As we see it, there are two grounds for error in this case: (1) the fact that the jury was presented with incorrect information alleging that Appellant had been convicted of more serious crimes and a greater number of crimes, and (2) that the Commonwealth exceeded the scope of KRS 532.055(2)(a) in presenting information to the jury other than the elements of the prior offenses.
1. Incorrect Information
Instead of presenting the jury with the actual crimes that Appellant had been convicted of, the jury heard evidence regarding, or was presented with the indictments for, charges which were eventually dismissed or amended. We recently addressed this issue in Blane v. Commonwealth, 364 S.W.3d 140 (Ky. 2012). In that case, the Commonwealth introduced evidence of the appellant's original, pre-amended charges that he was never convicted of (he was later found guilty of lesser, amended charges). Id. at 152. We stated:
Nothing in KRS 532.055(2)(a) permits a jury to hear evidence during the penalty phase of prior charges that have been amended—it is only permitted to hear evidence of "the nature of the prior offenses for which [the defendant] was convicted." KRS.055(2)(a)(2) (emphasis added). And we have recognized that "it is also well settled that the Commonwealth cannot introduce evidence of charges that have been dismissed or set aside." Cook v. Commonwealth, 129 S.W.3d 351, 365 (Ky. 2004) (citations omitted); see also Robinson v. Commonwealth, 926 S.W.2d 853, 854 (Ky. 1996) (holding that "KRS 532.055(2)(a) permits the introduction of prior convictions of the defendant, not prior charges subsequently dismissed"). For purposes of the penalty phase, criminal charges that have subsequently been amended are the functional equivalent of dismissed charges, which we have established to be impermissible as evidence in a sentencing hearing. See Chavies v. Commonwealth, 354 S.W.3d 103, 115 (Ky. 2011) (holding that "the introduction of the indictment showing the charges that were later dismissed and amended was erroneous") (emphasis added). The prosecution may only introduce evidence of the nature of a defendant's prior offenses, including the charges for which he was convicted, and the trial court erred by permitting introduction of the pre-amended charges.
Id. Accordingly, the Commonwealth impermissibly introduced evidence of prior crimes for which Appellant was never actually convicted.
However, for Appellant to be successful on this issue we must also find that this error was palpable. In Blane, Appellant contended that the error was palpable as he was prejudiced by the jury's recommendation of the maximum sentence on the underlying charges. Id. We agreed that given those facts prejudice could indeed be presumed. Id. In the case at bar, the jury also recommended the maximum sentence — life imprisonment — and thus in this instance we also presume prejudice.
We therefore conclude that the introduction of the original charges underlying Appellant's prior convictions constitutes palpable error in that it affected a substantial right to due process, resulting in a manifest injustice. See RCr. 10.26; Blane, 364 S.W.3d at 153. We therefore reverse and remand to the trial court for a new penalty phase, with instructions that the trial court not permit the Commonwealth to introduce prior amended or dismissed charges for which Appellant was not convicted.
2. Impermissible Details of Prior Conmctions
Appellant next argues that the Commonwealth exceeded the scope of KRS 532.055 when it told the jury about his prior convictions. Specifically, an error arose when the jury was presented with indictments that contained the names of the victims of the alleged crimes. Having already determined that Appellant is entitled to a new penalty phase, we address this issue only insofar as it is likely to recur on remand.
KRS 532.055(2)(a) provides, in relevant part, that in the sentencing stage of felony cases, "[e]vidence may be offered by the Commonwealth relevant to sentencing including: 1. Minimum parole eligibility, prior convictions of the defendant, both felony and misdemeanor; [and] 2. The nature of prior offenses for which he was convicted . . ." See also Newman v. Commonwealth, 366 S.W.3d 435, 445-46 (Ky. 2012); Mullikan v. Commonwealth, 341 S.W.3d 99, 107-08 (Ky. 2011).
In defining what evidence is permissible when describing the "nature of prior offenses," we recently held that:
"[E]vidence of prior convictions is limited to conveying to the jury the elements of the crimes previously committed. We suggest this be done either by a reading of the instruction of such crime from an acceptable form book or directly from the Kentucky Revised Statute itself. Said recitation for the jury's benefit, we feel, is best left to the judge. The description of the elements of the prior offense may need to be customized to fit the particulars of the crime, i.e., the burglary was of a building as opposed to a dwelling. The trial court should avoid identifiers, such as naming of victims, which might trigger memories of jurors who may — especially in rural areas — have prior knowledge about the crimes.
Mullikan, 341 S.W.3d at 109 (emphasis added).
In light of our pronouncement in Mullikan, it is clear that the Commonwealth exceeded the scope of KRS 532.055 and introduced improper evidence during the penalty phase. The Commonwealth went beyond "conveying to the jury the elements of the crimes previously committed," id., and introduced information of a prejudicial nature including the names of victims of prior crimes.
In Webb v. Commonwealth, Case No. 2011-SC-000594, a case that is being simultaneously rendered by this Court, we set forth the appropriate methods for introducing this type of evidence. Given that this is an issue that keeps being presented to this Court, we advise the Commonwealth to heed the instructions set forth in Webb upon remand.
III. CONCLUSION
For the aforementioned reasons, we affirm Appellant's convictions but vacate his sentence and remand for a new penalty phase consistent with this opinion.
Minton, C.J.; Abramson, Noble, Scott, and Venters, JJ., concur. Cunningham, J., concurs in result by separate opinion. Schroder, J., not sitting.
CUNNINGHAM, J., CONCURRING IN RESULT.
I vote to concur in result as I do not believe there has been a Moss violation. There is a big difference in calling someone untruthful and someone a liar. A person can be untruthful by being mistaken. Obviously, if you have various conflicting testimonies someone is being untruthful. I think we are micro-managing too much the dynamics of cross-examination. Calling someone a liar are fighting words. Saying someone is untruthful or mistaken are not.
