         IMPORTANT NOTICE
    NAT TO BE PUBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
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OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
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ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
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ACTION.
                                                 RENDERED : JANUARY 22, 2009
                                                       NOT TO BE PUBLISHED

                ,*UyrrM :V (~Vurf             of
                               2007-SC-000298-MR



 TERRANCE MILES


              ON APPEAL FROM JEFFERSON CIRCUIT COURT
 V.        HONORABLE JUDITH E . MCDONALD-BURKMAN, JUDGE
                          NO. 05-CR-000740


 COMMONWEALTH OF KENTUCKY                                              APPELLEE



                   MEMORANDUM OPINION OF THE COURT

                                   AFFIRMING

      This is an appeal from a judgment convicting Appellant of murder,

wanton endangerment, tampering with physical evidence, and being a

persistent felony offender in the second degree (PFO II) stemming from the

shooting death of a bouncer outside a Louisville nightclub . Appellant argues

that he was denied a speedy trial, that there was misleading and false

testimony presented to the grand jury, that defense counsel's cross-

examination of a jailhouse witness was improperly limited, and that a number

of unpreserved errors cumulatively amounted to palpable error. Upon review of

the record, we adjudge that the claimed errors were either not error or did not

rise the level of reversible or palpable error. Thus, we affirm.

      On the night of February 27, 2005, Michael Teasley, a bouncer at Club

502, was shot and killed outside the club as he attempted to clear the parking
 lot after the club had closed . Earlier that same evening, after another bouncer

 had removed Terrance Miles from the club for smoking marijuana, Miles and

 Teasley got into a fight . Teasley's wife, Crystal, who also worked at the club,

 testified that after the fight, Miles grinned and said to her husband, "you might

 have whipped my ass, but I'm going to get you ."

       Officer Frank Hill of the Louisville Metro Police Department, who was

 working extra security for the club while off duty, observed the fight between

Teasley and Miles. While Hill did not witness the actual shooting, he heard the

gunshots and then looked in the direction of the gunshots and saw a male

running across the parking lot dressed in all dark clothing and wearing a

toboggan hat. Officer Hill testified that the man he observed running across

the parking lot was the same man who had been fighting with Teasley earlier in

the night. Hill gave chase in his patrol car with the assistance of another

bouncer and at one point located the suspect behind a dumpster in back of the

club . However, Hill eventually lost sight of the suspect.

      A number of items were collected from the crime scene, including a black

toboggan hat and a cell phone . The number of the cell phone matched the

number Miles gave to Enterprise Rent-a-Car when he switched his rental

vehicle the day after the murder. The hat was ultimately sent by the

Commonwealth to the Kentucky State Police forensic lab for DNA testing to see

if trace evidence on the hat matched Miles' DNA. The results of the testing

were ultimately determined to be negative for Miles' DNA.
       On March 5, 2005, Miles was indicted for the murder of Teasley, as well

 as other charges related to the shooting. After a series of continuances related

 to the testing of the toboggan hat, a jury trial was held on December 12, 2006.

 The jury found Miles guilty of murder, first-degree wanton endangerment,

 tampering with physical evidence and PFO 11, and recommended a sentence of

 fifty (50) years in prison . From the amended judgment of April 5, 2007,

 accepting the jury's recommendations, Miles now appeals as a matter of right.

                                 SPEEDY TRIAL

      Miles alleges that the twenty-one (21) month time period between his

indictment and trial violated his Sixth Amendment right to a speedy trial.

During the twenty-one (21) month period, the Commonwealth requested and

was granted three continuances . The stated reason for each motion for

continuance was that they were awaiting the DNA test results on the black

toboggan hat. The hat was sent to the lab for testing on November 7, 2005 .

      On November 25, 2005, Miles pro se asserted his right to speedy trial in

a letter to the court, which was followed by a formal motion for speedy trial

filed on December 13, 2005 by defense counsel . However, defense counsel

stated no objection to the continuance at the December 5, 2005 hearing prior

to the first proposed trial date, wherein the prosecutor maintained that the hat

was a vital piece of evidence which could prove to be either inculpatory or

exculpatory.

     At a subsequent pre-trial hearing on March 3, 2006, the prosecution

informed the court that when he called to check on the progress of the DNA
 testing on the hat, he was told that the lab had not even started testing the

 hat. During this hearing, Miles' counsel agreed that the toboggan hat was a

 "crucial piece of evidence" in the case. At the April 11 and September 26, 2006

 hearings, however, Miles' counsel objected to the unnecessary delay in the case

 and announced ready for trial even though testing was not complete on the

 hat.

        A defendant's right to a speedy trial under both the United States and

Kentucky Constitution is analyzed under the four-prong balancing test set

forth in Barker v. Wingo , 407 U .S . 514 (1972) . Dunaway v . Commonwealth , 60

S .W .3d 563, 569 (Ky. 2001) . The four factors to be considered are: 1) length of

the delay; 2) reason for the delay; 3) defendant's assertion of his right to a

speedy trial; and 4) prejudice to the defendant. Barker, 407 U .S . at 530 .

        Regarding the first factor, we deem the twenty-one (21) month delay in

this case to be presumptively prejudicial . See Bratcher v. Commonwealth, 151

S .W.3d 332, 344 (Ky. 2004) (holding an eighteen (18) month delay in a murder

case to be presumptively prejudicial) . "That prejudice, however, is not alone

dispositive and must be balanced against the other factors." Parker v .

Commonwealth, 241 S .W .3d 805, 812 (Ky. 2007) (citation omitted) .

        As for reason for the delay, the Commonwealth argued that the toboggan

hat was vital evidence in the case and that they could not go forward with the

trial without the DNA testing being completed. Nevertheless, after the testing

came back negative, the Commonwealth still proceeded with the trial and

obtained a conviction against Miles . In fact, at trial the prosecutor elicited
 testimony from the lead investigator on the case, Detective Chris Ashby, that

 the hat had no relevance in the case and argued such in his closing argument .

 Miles asserts that this demonstrates that the testing on the hat was not a

 legitimate reason for the delay in this case and that the prosecutor

 intentionally misled the court as to the importance of the hat to the case .

       The black toboggan hat in question was found and collected by the police

 as potential evidence at the scene . Officer Hill and two other witnesses testified

 at trial that the man who shot Teasley was wearing a toboggan hat. Simply

because the testing came back negative on the hat and the prosecution

subsequently argued at trial that the hat was not significant to the case, does

not mean that the Commonwealth acted in bad faith in seeking DNA testing on

the hat . After the hat tested negative for Miles' DNA, the Commonwealth had

no choice but to minimize the evidentiary value of the hat at trial. In reviewing

the record, there is no indication that the Commonwealth acted in bad faith .

At the pre-trial hearings wherein the status of the testing on the hat was

discussed, the prosecutor reported that he was regularly calling the lab to

inquire about the status of the testing . Defense counsel admitted that the hat

was crucial evidence and stated no objection to having the hat tested, although

he sought to have their own expert present for testing.

      Miles did assert his right to a speedy trial, both pro se and through

counsel. However, as noted above, defense counsel did not initially object to

the motions for continuance based on the testing of the hat not being

completed.
       As for prejudice to Miles as a result of the delay, Miles alleges that he lost

 a key witness for trial, Steven Edwards, who died on June 25, 2006 in a

 motorcycle accident. Upon review of the record, the only references to Edwards

 were in a March 2007 motion to dismiss indictment for speedy trial violation

 and as an alias for Miles. According to the record, no subpoenas were issued

 for Edwards' appearance at either of the two trial dates prior to Edwards'

 death. Further, Miles does not allege what Edwards' testimony would have

been and why he was so crucial to his case.

       Finally, although Miles was convicted, the negative test results on the

hat were favorable to Miles' case at trial . The negative DNA results on the hat

were a large part of Miles' defense and were repeatedly referred to by defense

counsel at trial as proof that Miles was not the shooter.

      Upon consideration of all of the above factors in Barker, we adjudge that

Miles was not denied his right to a speedy trial in this case .

      With respect to Miles' claim that his right to a speedy trial under KRS

500 .110 was violated, it has been held that said statute only applies when a

defendant is incarcerated for one offense and a detainer has been lodged

against him for another offense . Gabow v. Commonwealth , 34 S .W.3d 63 (Ky.

2000) overruled in art on other grounds by Crawford v. Washington, 541 U.S .

36, 60-61 (2004) . From our review of the record, no detainer was lodged

against Miles in this case . Hence, KRS 500 .110 is not implicated here.
                             GRAND JURY TESTIMONY

        Miles argues that the Commonwealth's witness Sergeant Teddy Laun

 presented false and misleading testimony to the grand jury when he testified

 that Officer Hill and Reggie Burney had witnessed the shooting of Teasley . The

 grand jury testimony is not in the record before us . However, in Miles' motion

 to dismiss the indictment for misleading the grand jury, Miles refers to the

 following testimony of Sergeant Laun before the grand jury: "We prepared a

 photo pack which was shown to two of the witnesses, um, they were at the

 scene of the altercation and at the scene of the shooting." At trial, Officer Hill's

 testimony was that, while he did not see the actual shooting, he was nearby

 and saw the defendant running from the scene . Burney did not testify at trial.

We do not see that said Hill's testimony and the evidence adduced at trial was

in conflict with the purported grand jury testimony of Sergeant Laun . The

grand jury testimony was that Hill and Burney were at the scene of the

altercation and shooting and were able to identify the defendant, not that they

actually saw the shooting. Accordingly, this argument is without merit.

                  CROSS-EXAMINATION OF BRYCE BONNER

       Prior to trial, the Commonwealth made a motion in limine to limit the

cross-examination of its jailhouse witness, Bryce Bonner, regarding the nature

of his conviction and whether he sought a deal from the prosecutor in

exchange for his testimony in this case. The Commonwealth argued that

because Bonner had already been convicted and sentenced as of the time of

Miles' trial and did not receive a deal or in any way benefit from testifying for
the Commonwealth, any potential bias would have been eliminated . The

Commonwealth maintained, therefore, that the defense should not be able to

inquire into whether Bonner sought a deal in exchange for his testimony.

Defense counsel argued that Bonner's initial motive in approaching the

Commonwealth and seeking a deal in exchange for his testimony was relevant

and could be inquired into by the defense. The court granted the

Commonwealth's motion and ruled that the defense could not ask Bonner if he

had initially sought a deal from the Commonwealth in exchange for his

testimony . Miles argues that his Sixth Amendment right to cross-examine

witnesses was violated when the trial court would not allow this evidence of

Bonner's bias to be admitted .

            An essential aspect of the Sixth Amendment
             Confrontation Clause is the right to cross-examine
            witnesses. Douglas v. Alabama, 380 U .S . 415, 418, 85
            S .Ct. 1074, 1076, 13 L.Ed .2d 934, 937 (1965) .
            Additionally, "the exposure of a witness' motivation in
            testifying is a proper and important function of the
            constitutionally protected right of cross-examination."
            Davis v. Alaska, 415 U.S . 308, 316, 94 S .Ct. 1105,
             1110, 39 L.Ed.2d 347, 354 (1974) . However, it is
            equally well established that the right to cross-
            examination is not absolute and the trial court retains
            the discretion to set limitations on the scope and
            subject: "[T]he Confrontation Clause guarantees an
            opportunity for effective cross-examination, not cross-
            examination that is effective in whatever way, and to
            whatever extent, the defense might wish ." Delaware v .
            Van Arsdall, 475 U.S . 673, 679, 106 S.Ct. 1431, 1435,
            89 L.Ed.2d 674, 683 (1986) (emphasis in original) . . . .
            In defining reasonable limitations on cross-
            examination, this Court has cautioned : "a connection
            must be established between the cross-examination
              proposed to be undertaken and the facts in evidence."
              Commonwealth v. Maddox, 955 S.W.2d 718, 721 (Ky.
              1997) .
 Davenport v. Commonwealth , 177 S.W.3d 763, 767-68 (Ky. 2005) .

       As for limitations on cross-examination on a witness' bias, "this Court

 has explained: `So long as a reasonably complete picture of the witness'

 veracity, bias and motivation is developed, the judge enjoys power and

 discretion to set appropriate boundaries ."' Id . at 768 (quoting Commonwealth

 v. Maddox) 955 S .W.2d at 721) . The test espoused by the Van Arsdall Court

was whether a "reasonable jury might have received a     significantly   different
impression of [the witness'] credibility had [defense] counsel been permitted to

pursue his proposed line of cross-examination ." 475 U .S . at 680 .

      A trial court's rulings concerning limits on cross-examination are

reviewed for abuse of discretion . Nunn v. Commonwealth, 896 S .W .2d 911,

914 (Ky .1995) . In Davenport , we adjudged that the trial court did not abuse its

discretion in prohibiting the defense from cross-examining the witness about

his probation status or his pending misdemeanor charges where the

Commonwealth had made no offer of leniency in exchange for the witness'

testimony. 177 S .W.3d at 771 . Likewise, in the instant case, Bonner had not

been offered a deal for his testimony and had already been convicted and

sentenced as of Miles' trial. He admitted to being a convicted felon at trial.

Thus, at the time of Miles' trial, Bonner had nothing to gain in testifying

against Miles, which presumably explains why he ended up being a hostile

witness for the Commonwealth and his testimony was not helpful to the
 Commonwealth . Apparently Bonner recanted at trial, denying that he

 previously stated to the prosecutor that Miles' demeanor was arrogant when

 Miles told Bonner that he could not be convicted. Bonner testified only that

 Miles told him the Commonwealth did not have the evidence to convict him and

 that he was angry because he was being accused of crimes he did not commit.

        From our review of Bonner's testimony, we do not see that the jury would

 have received a significantly different impression of Bonner had they heard

 evidence that he sought a deal with the Commonwealth in exchange for

 testimony against Miles. The jury knew that Bonner was a convicted felon and

was in jail at the time he had the conversation at issue with Miles . And even if

there was error, the defense was not prejudiced by Bonner's testimony. Thus,

it would have been harmless error. RCr 9 .24 .

              CUMULATIVE EFFECT OF UNPRESERVED ERRORS

       Miles argues that the aggregate of several other errors, which were

admittedly unpreserved, constituted palpable error under RCr 10 .26 . A

reviewing court may grant relief of an unpreserved error only when manifest

injustice has resulted from the error. RCr 10 .26. "To discover manifest

injustice, a reviewing court must plumb the depths of the proceeding . . . to

determine whether the defect in the proceeding was shocking or jurisdictionally

intolerable ." Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky . 2006). Upon

review of the entire record, we cannot say that the alleged errors below, either

alone or cumulatively, rise to the level of palpable error.
      Miles first assigns as error the improper questioning of Bonner by the

prosecutor on direct when he asked him if he remembered the conversation he

had with him the previous day, thereby placing the prosecutor's credibility

before the jury . As discussed earlier, the testimony of Bonner was not harmful

to Miles' case. If anything, it was helpful to the defense . Accordingly, the

error, if any, could not constitute palpable error.

      Miles next alleges prosecutorial misconduct when the Commonwealth

made comments during its closing argument that the defendant and defense

witnesses were lying. Responding to the accusation in the defense closing

argument that the Commonwealth's witness, Crystal Teasley was lying, the

prosecutor argued that Miles and his two witnesses were lying . In so doing, the

prosecution pointed to the inconsistencies between the defense testimony and

defense theory of the case and the established facts in the case . However,

Miles did not testify in the case. According to the Sixth Circuit:

            If a defendant testifies as here, a prosecutor may
            attack his credibility to the same extent as any other
            witness . See Raffel v. United States, 271 U.S . 494,
            497, 46 S .Ct. 566, 70 L.Ed. 1054 (1926), see also
            Fitzpatrick v. United States, 178 U .S . 304, 315, 20
            S.Ct. 944, 44 L.Ed. 1078 (1900) . This Court has held
            that a prosecutor may assert that a defendant is lying
            during her closing argument when emphasizing
            discrepancies between the evidence and that
            defendant's testimony. See United States v. Veal, 23
            F.3d 985, 989 (6th Cir.1994) . To avoid impropriety,
            however, such comments must "reflect reasonable
            inferences from the evidence adduced at trial." See id .
            (quoting United States v . Goodapple, 958 F .2d 1402,
            1409-10 (7th Cir.1992)) . Again, misconduct occurs
            when a jury could reasonably believe that the
            prosecutor was, instead, expressing a personal opinion
            as to the witness's credibility. Taylor, 985 F.2d at 846
              (citing United States v . Causey, 834 F .2d 1277, 1283
              (6th Cir.1987), cert. denied, 486 U .S. 1034, 108 S.Ct.
              2019, 100 L .Ed.2d 606 (1988)) .

 United States v. Francis, 170 F .3d 546, 551 (6th Cir . 1999) .

       As for the prosecution's assertion in closing argument that the defense

witnesses were lying, because the prosecution backed up such claims with

 specific discrepancies between their testimony and the evidence, there was no

prosecutorial misconduct . As to the prosecution's argument that the

defendant was lying, because Miles was not a witness in the case, the comment

amounted to prosecutorial misconduct . Nevertheless, we adjudge that in this

case such misconduct was neither flagrant nor of such an egregious nature to

deny Miles his constitutional right to due process of law, especially given the

absence of a contemporaneous objection to the comment. See Barnes v .

Commonwealth , 91 S .W.3d 564, 568 (Ky. 2002) (following the Sixth Circuit

Court of Appeals in United States v. Carroll, 26 F.3d 1380, 1390 (6th Cir .

1994) and United States v. Bess, 593 F.2d 749, 757 (6th Cir. 1979)) and

Slaughter v. Commonwealth , 744 S .W .2d 407, 411-412 (Ky. 1987) . In light of

the overwhelming evidence adduced against Miles in this case, we likewise

cannot say that manifest injustice resulted from said error. Hence, there was

no palpable error.

      Miles also assigns as palpable error the prosecution's leading of its

witnesses, Detective Ashby and Bryce Bonner, in violation of KRE 611 . As

noted above, Bryce Bonner turned out to be a hostile witness for the

Commonwealth. Leading questions of a hostile witness are expressly permitted


                                         12
by KRE 611(c) . And the question asked of Detective Ashby regarding the

testing of the toboggan hat, if leading at all, would not amount to palpable

error.

         The last three alleged palpable errors are summarily raised in Appellant's

brief without any citation to the record, citation to authority, and without any

explanation as to why they constitute error. See CR 76.12 (4)(c) (v) . Those

arguments were not properly presented to this Court and thus will not be

addressed .

         For the reasons stated above, the judgment of the Jefferson Circuit Court

is affirmed .

         All sitting . All concur .
COUNSEL FOR APPELLANT:

Aubrey Williams
Williams 8s Associates
421 Starks Building
455 Fourth Avenue
Louisville, KY 40202


COUNSEL FOR APPELLEE:

Jack Conway
Attorney General

Henry Albert Flores, Jr.
Assistant Attorney General
1024 Capital Center Drive
Frankfort, KY 40601
