NICKELL, JUDGE.
Marc Handley appeals from the Daviess Circuit Court judgment following a jury trial convicting him of burglary in the first degree
In the early morning hours of August 4, 2009, Whittaker Guns in rural Davies County was burglarized by a group of men. Numerous handguns, high-powered assault rifles, hunting rifles and boxes of ammunition were taken from the business. Courtland Reed, one of the burglars, testified at Handley's trial. Reed admitted his own involvement and implicated Handley as one of the quartet of burglars. Surveillance video obtained from Whittaker Guns, though dark, showed four individuals entering the premises and stealing guns and ammunition.
Brandon Sappenfield, the boyfriend of one of Handley's cousins, supported Reed's testimony. Sappenfield testified he and Handley travelled on his moped to Wal-Mart sometime around midnight on August 3, 2009, where they met three other men including Reed. Handley entered Wal-Mart and stole a pair of gloves to use in the burglary. The five men left Wal-Mart together and met at a nearby gas station. Handley told Sappenfield that he and the other three were "going to get guns." Sappenfield left the foursome and went home to sleep. Several hours later, at approximately 6:00 a.m., Handley woke Sappenfield requesting assistance in taking a tub to a nearby field. Handley told Sappenfield the tub contained "bullets and chambers" and that the items came from Whittaker Guns. Sappenfield helped Handley take the heavy plastic tub to the field.
In addition to the video from Whittaker Guns, the Commonwealth introduced surveillance video from Wal-Mart. That video showed a vehicle and moped enter the parking lot, individuals entering the store, those individuals looking at guns in the hunting section of the store, and those subjects leaving the store premises in the car and on the moped. One of the subjects wore distinctive pants similar to those seen on the surveillance video obtained from Whittaker Guns.
Following the close of the Commonwealth's case-in-chief, Handley attempted to present an alibi defense. Through his witnesses, Handley tried to convince the jury he could not have had anything to do with the burglary as he was asleep at the time it occurred. The alibi witnesses further testified that Handley left Owensboro at approximately 4:30 a.m. on August 4, 2009, to travel to Lewisport, Kentucky, then on to an appointment in Louisville, Kentucky, and did not return until after dark that evening, thereby attempting to refute Sappenfield's version of events.
Handley testified on his own behalf and denied going to Wal-Mart with Sappenfield, denied having any role in the burglary, and affirmatively stated he was in Louisville for an 8:00 a.m. appointment on August 4, 2009. On cross-examination, the Commonwealth had Handley acknowledge his signature on a document purporting to show he was in Owensboro on August 4, 2009, at approximately 10:30 a.m. meeting with his probation officer. He denied the meeting occurred on that date and persisted in his insistence that he was in Louisville all day. The Commonwealth then presented rebuttal testimony from Cynthia Marret, Handley's probation officer in Owensboro, who authenticated the document as a sign-in sheet from her office and stated she had personal knowledge that Handley was, in fact, in her office that day. She stated she specifically remembered meeting with Handley that morning.
The jury found Handley guilty of burglary in the first degree and recommended a sentence of fifteen years' imprisonment. The trial court entered a final judgment imposing the recommended sentence on December 13, 2010. This appeal followed.
Handley raises two allegations of error
Through Det. Palmiter, the Commonwealth introduced surveillance videos obtained from Whittaker Guns showing the burglary in progress and from Wal-Mart on the night of the burglary showing the suspects' activities on the premises of that store. During the playback of the Whittaker Guns video, Det. Palmiter began advancing it frame by frame calling the jury's attention to movements and orienting them to the location of the video camera within the store. Handley objected and informed the trial court that, although he had no objection to Det. Palmiter "orienting people within the store," he believed the video spoke for itself and did not require that every frame be described to the jury. The trial court found that since the video was dark, it was necessary to alert the jury to movements which might otherwise be easily overlooked. Det. Palmiter resumed playback of the surveillance video at normal speed pursuant to the Commonwealth's direction and made few further comments regarding the contents of the tape. Handley did not request a continuing objection and made no further objections during the playback.
Prior to Handley's objection, Det. Palmiter had been answering direct questions from the Commonwealth regarding the video and making unprompted statements about what was happening on the screen. Following the objection, Det. Palmiter ceased his unprompted commentary
Police officers are permitted to offer some narrative testimony while a crime scene video is played for the jury. Cuzick v. Commonwealth, 276 S.W.3d 260, 265 (Ky. 2009). Such testimony must comply with the standards set forth in KRE
In the case sub judice, Det. Palmiter's comments following the objection and ensuing bench conference were responsive and were clearly based on his own perceptions and knowledge gained through the investigation of the burglary. He had visited the crime scene, reviewed the videotape, interviewed witnesses, and conducted further investigation, thereby giving him personal knowledge regarding the portions of the tape upon which he commented. None of his testimony interpreted the images being shown, provided an identification of Handley as a perpetrator of the burglary, or invaded the fact-finding province of the jury. We cannot say the testimony was infirm nor that the trial court erred in allowing its admission.
Approximately forty-five minutes after the Whittaker Guns video was played for the jury, the Commonwealth introduced the Wal-Mart surveillance video.
For an error to rise to the level of palpable error requiring reversal, the defendant's substantial rights must have been affected resulting in manifest injustice. To determine whether a manifest injustice has occurred, reviewing courts are required to determine whether "the defect in the proceeding was shocking or jurisprudentially intolerable." Commonwealth v. Pace, 82 S.W.3d 894, 895 (Ky. 2002). An error cannot be palpable unless there is a "substantial possibility" that the result would have been different without the error. Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006).
Our review of the record reveals Det. Palmiter's testimony with respect to the Wal-Mart video did not constitute palpable error. As with his testimony during the playback of the Whittaker Guns surveillance video, Det. Palmiter did not attempt to interpret the images, did not identify Handley in the video, and did not in any way invade the fact-finding obligation of the jury. The video was dark, grainy, and jumpy. Det. Palmiter's testimony was limited to orienting the jurors to the scenes being depicted, calling their attention to activities which might otherwise have easily been missed, and explaining how and why he obtained the tape from Wal-Mart. During the nearly 30 minute long video, there exist several extended periods of complete silence. Thus, contrary to Handley's suggestion, we cannot conclude the testimony was a narration of the events unfolding on the screen and we cannot conclude any error occurred.
Further, in light of the overwhelming evidence against Handley and the fact that his purported alibi was proven untrue, we cannot say that there is a "substantial possibility" that the outcome of his trial would have been different absent the introduction of the challenged video and Det. Palmiter's corresponding testimony. Id. Therefore, even if we had concluded an error had occurred, we could not hold that such an error was palpable.
Finally, Handley contends the trial court erred in granting the Commonwealth's motion to treat Sappenfield as a hostile witness and allowing the use of leading questions. We disagree.
Sappenfield was called during the Commonwealth's case-in-chief. At the beginning of his testimony, Sappenfield confirmed he was testifying only because he had been subpoenaed to do so. The majority of his answers were short and arguably evasive. He spoke in a nearly inaudible tone throughout much of his testimony. The Commonwealth completed almost all of its questioning before requesting that it be allowed to treat Sappenfield as hostile. Handley argued that Sappenfield had answered all of the Commonwealth's questions. The trial court believed his demeanor indicated he was not testifying as a witness for the Commonwealth, found him to be hostile, and permitted the Commonwealth to inquire of him as if on cross-examination.
Following the trial court's ruling, the Commonwealth asked Sappenfield whether he had asked Handley if the contents of the tub had come from Whittaker Guns. Handley's objection to this question was overruled and Sappenfield was instructed to answer the question. After the Commonwealth restated its question for Sappenfield, he stated Handley had told him it came from Whittaker Guns. One final question was asked by the Commonwealth regarding whether Sappenfield received any proceeds of the burglary to which he replied he did not. The Commonwealth then passed the witness. Handley argues the trial court's decision to allow the use of leading questions resulted in substantial prejudice to him. His argument is without merit.
KRE 611(c) states "[l]eading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony." Historically, leading questions have not been permitted in direct examination. Lawson, Kentucky Evidence § 3.20[6], at 245-246. Of course, exceptions to this general proscription exist. See Brown v. Commonwealth, 440 S.W.2d 520, 524 (Ky. 1969) (a pre-KRE 611(c) case holding that the Commonwealth could treat a witness as hostile and ask leading questions even though the witness was called by the Commonwealth since the witness was reluctant to answer the questions asked). The decision to allow the use of leading questions on direct examination is within the discretion of the trial court and is not grounds for reversal unless there is an abuse of that discretion and a shocking miscarriage of justice results. Tamme v. Commonwealth, 973 S.W.2d 13, 27 (Ky. 1998) (citing Askew v. Commonwealth, 437 S.W.2d 205 (Ky. 1969); Meredith v. Commonwealth, 265 Ky. 380, 96 S.W.2d 1049, 1051 (1936)).
The trial court was asked to pass on Sappenfield's demeanor in determining whether to allow the Commonwealth latitude in its examination, and it was in the best position to make such a decision. The record indicates Sappenfield was unable to recall certain events about which he was questioned and was evasive throughout his testimony. Handley's characterization of Sappenfield as "sheepish and timid" during his testimony is not an accurate depiction of what appears in the record before this Court. He is more accurately described as equivocal and vague. There is no evidence, upon our review of the record, of any abuse of the trial court's substantial discretion and no shocking behavior that could reasonably be construed as constituting any miscarriage of justice during this portion of the trial. The use of leading questions by the Commonwealth was quite limited, consisting of, at most, three questions. There is no indication that the questions asked, nor the resulting answers, were prejudicial to the extent that their admission could reasonably be found to have effected a shocking miscarriage of justice nor that the trial court's decision to permit them constituted an abuse of discretion.
Therefore, for the foregoing reasons, the judgment of the Daviess Circuit Court is affirmed.
ALL CONCUR.