                                                  CORRECTED:. OCTQBER 20, 2017
                                                 RENDERED: SEPTEMBER 28, 2017


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                                                                                      0




                                 2016-SC-000021-M~~:n                       .

                                                       ·[Q)~1J~10/tq ,,, ~:~ f2tdmo~.rx-
 JOHN FAIRLEY III                                       .                  APPELLANT


                  ON APPEAL FROM CHRISTIAN CIRCUIT COURT
 v.                  HONORABLE ANDREW C. SELF, JUDGE
                              NO. 14-CR-00551       .


 COMMONWEALTH OF KENTUCKY                                                       APPELLEE


                 OPINION _OF THE COURT BY JUSTICE HUGHES

                                      AFFIRMING

        John Fairley III appeals as a matter of right from a judgment of the
                                            ,_

 Christian
       .
           Circuit Court sentencing him to twenty years' imprisonment
                                                           .
                                                                      for first-

 degree robbery, receiving stolen property (firearm), first-degree possession of a

 controlled substance (while armed), and possession o_f n:iarijuana (while armed).

 _Fairley. alleges that the trial c_ourt erred by permitting the victim to make an in-

 court identification and by refusing to give· an- instruction for the lesst:?r-

 included offense of facilitation to first-degree robbery. Fairley aiso raises two

 unpreserved errors: .1) that his conviction for receiving stolen property based on

 a stolen handgun was manifestly unjust and 2) that the Commonwealth's

'---Attorney improperly questioned him about a prior assault. For the following

 reasons, we affirm ·the judgment and sentence.
                       FACTS AND PROCEDURAL HISTORY

        On S.eptember 2, 2014, Charles "Bird Dog" Page left his home·to visit his

 brother, Earl, in Hopkinsville, Kentucky. While walking to Earl's residence,

 Page observed a maroon colored vehicle, which for some unspecified reason he
                                     .         .




 found suspicious. Page watched the vehicle pull into a parking lot and he

 continued on his way to his brother's· home, Upon reaching Earl's residence,

 Page realized that he had forgotten his key. As Page left -to meet his brother to

 get a key to the house, he· once again saw the maroon car.

       Concerned about. the maroon car's reappearance, Page hitched a ride

· with two African-American men in a blue car. After driving for some time, the

 driver turned down· an alley. Subsequently, the passenger in the front seat

 (later identified by Page as Fairley) pointed a handgun at Page and commanded

 "Give me your money." Page fled the vehicle and ran towards a law office.

 Fairley gave chase and struck Page in the back of the head with his pistol.

 Page then began to yell for help.

       Hearing the disturbance, Lucius Hawes, exited his law office and saw

 both men. Hawes observed an African-American man with dreadlocks, dressed

 in dark clothing, ·and carrying a large semi-automatic pistol,_ fleeing the scene

 headed in the direction of Clay Street. Subsequently, Hawes ·provided aid to

 Page, whose head wound was.bleeding profusely.

       Emergency services were contacted and shortly thereafter an ambulance

arrived to treat Page. While receiving medical treatment, Page informed·

 Emergency Technician Nicholas Marlow that two African.:American menhad.

                                         2
 assaulted. him with a pistol. Page was initially treated at a local hospital, but

 was later medicallY, evacuated by helicopte~ to a hospital in Tennessee. Page's

 injuries included   asevere laceration and a broken nose.   Later, when

 interviewed by the polke, Page explained that the person who struck him had

 also stolen: money from him.

       During the resulting police investigation, investigators recdved·tips

. which suggested Fairley'i::;
                   .           involvement
                                .   .
                                           in the robbery. Police also learned that

 at the time of the robbery Fairley had been wearing a GPS ankle monitor as
                           .                   .
 .part of a court'.'ordered home incarceration .. According to the monitoring

 company, Fairley's monitoring device was registered as being near Hawes's

 office and moving away from that location towards Clay Street at the time· of_

 the robbery.

       The police interviewed Fairley on September 3, 2014, at which time he

 claimed to have been driving a red car on the day_ of the robbery: He, noted that

.. he was away from his home that day as he was sµbmitting an employment .

 application. The following day, September 4, 2014, police using GPS tracking

 located Fairley· sitting alone in the back seat of a white vehicle parked in a

 vacant lot. On top of the transmission tunnel in the rear of the vehicle,

 ·approximately a foot away from. Fairley, was a firearm which police later

 learned .had previOusly been reported stolen. Also in the vacant lot was a blue

 Malibu·vehicle which was registered to Fairley's mother.
      .After Fairley's arrestl he was again interviewed by the police about the

 Page robbei:y. In his second interview, Fairley initiaily.claimed that he had

 been at his home during the time of the robbei:y. However,' later in the

interview, he stated that he had witnes.sed someone attacking Page and he gave

· that person a ride away from the area.

       A later search of the blue Malibu pursuarit to.a warrant led to the

recovery of quantities of cocaine.and marijuana: Add1tionally, during a search·

of Fairley's home, police recovered a pair of socks which appeared to have .

blood stains on them. Subsequent forensic testing established the presence of

blood on the passenger's side door handle of the blue Malibu, the firearm, and

the socks. The DNA profile for those blood stains was a match for Page at all

loci, with an estimated frequency of one in ninety~nine quintillion based on the

relevant United States population.

      In September 2015, Fairley was tried by the Christian Circuit Court and
                      '
found guilty of first-degree .robbei:y, receiving sto.len property (firearm), first-

degree possession of a controlled substance (while armed), and         posse~sion    of

marijuana   (~hile   armed). The jui:y r,ecommended the maximum penalty for

each offense, but recommended that those sentences be served co'ncurrently

for a total sentence of twenty years' imprisonment. The trial court sentenced

F~rley   in conformance with the jury's recommendation.




      · 1 It appears Fairley was arrested due to violation of court-ordered conditions
attached to his release on home incarceration.

                                            4
 I. The Trial Court Properly Permitted the Victim to Make an In-Court .
    ldentificati(>D of Fairley.

              Fairley argues that the trial court erred by permitting Page to make an

 in-coilrt iden.tification. Specifically, Fairley contends that as Page was unabl~

 to identify him in a photographic lineup,· that he should have been barred .from .

. making an in-court identification.2 Alternatively, Fairley requests that the

 Cour:t remand this case. for a hearing to. assess wh~ther the in-court

 identification satisfies the factors set forth in Neil v. Biggers, 409 U.S. 188, 93

 S. Ct.       ~75   (1972). We reject both argilments.

          After Fairley was apprehended, Detective Green showed P8:ge a

 photographic lineup, but he was unable to identify Fairley as the perpetrator.

.However, prior to trial, Page informed the prosecutor that he.would be able to

 identify Fairley. At a pretrial conference held in Septem.ber 2015, the.·

 prosecutor informed the trial court and Fairley of Page's statement. Fairley,

 who.at that time         ~as   functioning as his own counsel, responded by saying "[t]o

 me, I feel like that shouldn't be aJlowed because if he couldn't do it then, how

. all of a sudden you can do it now?" The· trial court explained that it. would not         .
                                                 "        .
 bar Page. from making .an hi-court identification and that Fairley could cross-
                                     .                        .
 examine him on this issue. During the trial, Page identified Fairley as the man

 who robbed him. Page explained that' he initially was fearful of identifying


                                             .                                       .
         Fairley states that the admissiori of the in-court identification Violated his
          2
right to due process under the Fourteenth Amendment to the United States
Constitution and Section 11 of the Kentucky Constitution. .           .


                                                     5
..

     "-°   Fairley. Further, Page was concerned that identifying Fairley would lead to the

           revelation that the stolen money 1:1ad been acquired      through.ill~gal   gambling.

           Notably, Faidey did not object to Page's in-court identification, but did q~estion

           ·him about the identification as discussed below.

                 While Fairley did not object to Page's in-court identification at trial, we

           conclude that his objection prior to trial was sufficient to preserve this issue for

           appellate    review~   Admittedly, this is a close call, but we choose to construe

           Fairley's pretrial.complaint as an objection to Page's in-court identification,
                                           '
           recognizing that·pro se litigants should be afforded a degree of latitude in

           making their argument's. See Commonwealth v. Miller, 416 S.W.2d 358, 360

           (Ky. 1967) (explaining that pro se litigants are afforded a different standard

           than that applied to those with legal counsel). Accordingly, we review the trial        ·\

           court's decision to admit evidence under an abuse of discretion standard ..

           Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007) (citing Brewer v.
                    '
           Commonwealth, 206 S.W.3d 313, 320 (Ky'. 2006)). The test for abuse of

           discretion is whether the trialjudge's decision.was arbitrary, unreasonable,

           unfair, or unsupported by sound legal principles. Goodyear Tire & Rubber Co.

           v. Tho_mpson, 11 S.W.3d 575, 581 (Ky. 2000) (citing Commonwealth v. Engl.ish,
                                     '
           993 S.W.2d 941, 945 (Ky. 1999)).

                 We reject Fairley's first"argilment that .Page's inability to identify him in a

           photographic lineup should bar him from making an in-court identification.

           As we have previously explained "the failure of a witness to identify a suspect

           from a photographic line-up does not prevent that witness from later

                                                       6
 identifying a suspect in court." Thompson v. Commonwealth, 2003-SC-0252-

 MR, 2004 WL 2624165, 6 (Ky. 2004) (citing United States v. Dobson, 512 F.2d

 615, 616 (6th Cir. 1975));. United States v. Briggs, 700 F.2d 408, 413 (71:? Cir.

 1983)).3 As the United States Court of Appeals for the Sixth Circuit observed:

               The fact that eye Witnesses to an occurrence cannot make a
        positive identification of an individual frqm an examination of
        photographs of a number of persons, does not necessarily detract
        from the validity of their in-court identification where they see the
        individual in person. The weight to be given. to their in-court
        identification is for the jury to .determine.

 United States v. Black, 412 F.2d 687, 689 (6th Cir. 1969). See also United

 States v. De Leon-Quinones~ 588 F.3d 748, 755 (1st Cir. ·2009) ("To allow a

 failed identification to always bar a later identification would make little

 sense.").

        We agree that the proper course is to permit the witness to attempt to

. identify the   ~uspect   in court and, if an identification is made, allow the.defense .

 to thoroughly cross-examine the Witness concerning his failure to make a prior

identification. The jury is fully capable of determining what weight to assign to

the in-court identification. In this case, Fairley cross-examined Page regarding

inconsistencies in the descnption of his assailant to the police and the way that

Fairley appeared at the time of trial as well as his failure to identify Fairley

pretrial in the photo array. This allowed the jury to decide what weight to give




  .    We cite to Thompson, an unpublished opinion of this Court, as we find "no
       3

published opinion that would adequately address the issue before the court." CR
76.28{4)(c).

                                              7
Page's identification of Fairley. Accordingly, the trial court did not abuse its

discretion in permitting the introduction of this evidence.

       Alternatively, Fairley argues that Page's in"".coUrt identification should.

have been assessed by the trial c?urt under .the factors set forth in Biggers

·before Page was allowed to testify. 4 He requests that this Court. remand .the

case for an evidentiary hearing.

       In Biggers, the Supreme Court set forth a two-prong due process test for .

considering an identification by a witness following impermissible suggestive

pretrial procedures such    a~   a photo array or line.:.up. In Wilson v. ·

Commonweaith, 695 S.W.2d 854, 857 (Ky. 1985), this Court summariied the

requirements of the Biggers test. First, "[w]hen examining a pretrial

confrontation, this [C]ourt must first determine whether the confrontation

procedures employed by the police ·were 'suggestive."' Id. Second, if the Court

determines that those procedures were. suggestive, "we must then assess the

possibility that the witness would make an irreparable misidentification, based

upon the totality [of] the circumstances arid in light of the five factors

enumerated in Biggers." Id.

      Fairley requests this   ~ourt   extend Biggers to apply to in-court

identifications. In support of this argument, Fairley relies on Kennaugh v.



        4 "The Biggers factors are: (1) the opportunity of the witness to view the
defendant; (2) the witness's degree of attention; (3) the accuracy of any prior
descriptions; (4) the level of the witness's certainty when confronting the qefendant;
arid (5) the time between the crime and the confrontation of the defendant."
Commonwealth v. Parker, 409 S.W.3d 350, 353 (Ky. 2013) (citing Savage v.
Commonwealth, 920.S.W.2d 512, 513-14 (Ky. 1995)).

                                            8
 Miller, 289 F.3d 36 (2nd Cir. 2002). The. Kennaugh Court was faced with an

 issu.e similar to that presented in the case at bar - namely a witness failed to.

 identffy the accused.prior to trial after reviewing a line-up and photo arrays,

. but at trial made an in-court identification. Id. at 39-40. Ultimately, tl:;te

 Kennaugh Court concluded that the application of the Biggers test. was not .·

 m.aildato:ry for state courts under these circumstances, but that state courts

 were ol>ligated to take actions to ensure.that due process requirements were

 respected .. Id. at 45-46. The Kennaugh Court also noted that "the Fourth,

.Fifth, Sixth, ·Eighth, Ninth, and Eleventh Circuits have held that in-court

 identification testimony in the absence of ·a pretrial
                                                    .
                                                        identification must
                                                                       .
                                                                            satisfy

 the Manson [v. Brathwaite, 432 U.S. 98, 97 S. Ct. 224? (1977)]

 reliability standarci, either by meeting, the Biggers requirements or in other .

 ways." Id. at 4 7 (citations omitted). s .

       However, over the years a significant nuniber of jurisdictions have

·rejected the application of Biggers to in-court identifications.
                                                    .             See, e.g., United
                                                                                .


 States    V:   Domina, 784 F.2d 1361, 1369 (9th Cir. 1986) (declining to exter:id

Biggers to an in-court identification, rioting that "[tjhe Supreme Court has not

extended its exch.isiona:ry. rule to in-court identifi.cation procedures
                                                              .
                                                                         that are

suggestive.because of the trial setting."); State v. Lewis, 609 S.E.2d 515, 518
                    '




       5 Fairley also cites this Court"to Commonwealth v. Crayton, 21 N.E.3d 157, 169
(Mass. 2014), in which Massachusetts adopted a new rule mandating that "[w]here an ·
eyewitness has not participated before triaI in an identification procedure, w~ shall
treat the in-court identification as an in-court showup, and shall _admit it in evidence
only where there is 'good reason~ for·its.-admission."

                                              9
(S.C. 2005) ("We conclude, as the majority of courts have, that Neil v;· Biggers

does not apply to in-court identifications and that the remedy for.any alleged

suggestiveness of an in-court identification is cross-examination and

argument.")~


      . Although the relatively recent ·opinion in Perry v. New Hampshire, 565

U.S. 228 (2012), did not involve an in-court identifi~ation (and thus did not.

settle the debate beyond the requirements of federal due process on the facts

presented6), it does give strong support for the limitation of Biggers, as well as

its predecessors and progeny, to out-of-court identifications resulting froni

suggestive circumstances arranged by the police. In Perry, the police were

interviewing a woman in· her     ~partmeri.t   who had witnessed a man breaking

into cars in the building's parking lot. When asked about the description of the

man she _saw, the woman walked to her kitchen window and pointed to-_a man

standing next to a pqlice officer in the    p~king   lot, indicating he was the man.

She subsequently was unable to identify Perry in a photo array.. At trial, the ·

woman and the police officer who interviewed her both testified about her

pretrial "kitchen window" identification.

       Framing the issue presented as "the reliability of an eyewitness

identification made under suggestive circumstances not arranged.by the




       · 6 Peny was tried in a New Hampshire. state court and raised a federal due
process argument regarding a pretrial identification. In Perry,- the United States
Supreme. Court addressed what the federal Due Process Clause requires in those
circumstances. States are, of course, free to set ·their own bar for admissibility of
pr_etrial and in-court identifications higher than that set by. the Supreme Court.·

                                            10
 .                          .
 ·police~"   Justice Ginsburg, writing for an 8-1 majority, reviewed the line of cases

 beginning with Stovall"v. Denno, 388 U.S. 293 (1967) and culminating With ·

 Biggers and.Manson; 565 U.S. at 236. The Court rejected the idea that trial

.judges should "prescreen
                  -     '
                          eyewitness
                           .
                                     evidence for reliability' any time an

 identification is made under suggestive ·circumstances." Id. at 240. The Court

 noted that a primary airri of the Biggers line. of cases was deterrence of law '-

 enforcement's use of improper lineups, sho~ps, and photo arrays, a fEictor

 clearly not present inthe case be_fore it.· Id~ at 241. Peny'& focus on isolated

 phrases in the case law regardihg the "reliability'' of evidence "would open the

 do.or to judicial preview, under the banner of due process, of most, if not all
                .               .            .                         .        .

 eyewitness identificatl~ns." Id. at 243. Pointedly, the Cou~ obserired. that

 many eyewitness identifications are problematic for arty number of reasons .

 including inter alia a witness's poor vision, the stress of the encounter,

. personal grudges and cross-raeial perceptions, and most identifications ,

 pr9cedures "involve some element of suggestion. Indeed, all.in-court

 identifications do." Id. at 244. (emphasis supplied).· In refus~ng to extend

 Biggers, the Perry Court emphasized the safeguards built into our adversary

 system, including the right to confront the eyewitness through effective counsel

.·who   can cross-examine the witness and argue persuasively, eyewitness-specific
.jury instructions~ and the constitutional requirement that guilt be proven

 beyond a reasonable doubt.

         Post.:.. Perry, several· federal circuit courts have conchided that" there is

· nothing impermissibly suggestive about an initial in-court identification even

                                             11
 when it is obvious that the defendant is the person sitting with counsel at the

 defense table. U.S. v. Morgan,_ F.Supp.3d _, 2017 WL 1277419 (D. D.C.

 2017) (collecting. cases). See also. U.S. v. Hughes,
                                              .
                                                      562 F.Appx. 393, 398 (6th

 Cir. 2014) (in-court identification of.only African-American in courtroom was

 not impermissibly suggestive because Perry clarifies that due process rights are

 met through "ordinary protections in trial.") However, in Morgan, the federal

 district. court opted to read Perry as rejecting judicial prescreening of all in-

 court identifications but not changing·
                                  .    .
                                         the concept that some circuits applied
                 .   .         .
 pre-Perry, i.e., "due process concerns require such screening for an initial in-

 court identification that is equivalent to a one--man showup:" 2017 WL at

 1277419 at 3.

       Having considered Perry and other authorities, we decline to extend

 Bigq~rs   to in,.court identifications. The trial safeguards identified in Perry were

 present and fully utilized here and there is no sound basis fOJ," requiring a post..:

. trial hearing wherein the trial jud~e would assess the     reliab~lity   of Page's

 identification of Fairley.7 We trust that these same safeguards will continue to

 protect the rights of defendants first identified in court, leaving the jury with

 responsibility for assessjng the credibility of the identification in each case.. As .

 often noted, throughout Anglo-Am~rican history, "[d]ecisions as to human life,

 liberty and public and private property have be_en routinely made by jurors and



             .                                    .
       1 In Wilson, this Court held t,hat "it ~s within the sound discretion of the triaj.
court to determine whether an independent pretrial line-up is necessary." 695 S.W.2d
.at 858. Nothing in today's opinion limits that discretion.

                                            12
 extraordinary confidence has been placed in this decision-making process."

 Curry v. Fi.reman's Fund Ins. Co., 784 S.W.2d 176, 178 (Ky. 1989).
     .         .                          .   :.

 II. The Trial Court Pl".operly Instructed the Jury. -

         Fairley further contends that the trial court erred by failing to instruct

 the jury on the lesser-included offense of facilitation to first-degree robbery.

 This argu:rp.ent is pr9perly preserved, and we review the trial court's decision

 "not to give a jury instruction ... for abuse of discretion." Hunt v.

 Commonwealth,-304 S.W.3d 15, 31 (Ky. 2010) (cititig·Williams v.

 Commonwealth, 178 S.W.3d 491, 498 (Ky. 2005)).

         "The. trial court is required to instruct the jury on the 'whole law of the

case, and this rule requites instructions applicable to every state ofthe case

deducibl~ or s-µpported to any extent by_the testimony." Murphy v. ·

 Commonwealth, 509 S.W.3d 34, 48 (Ky. 2017) (quoting Taylor v.

 Commonwealth, _995 S.W.2d 355-, 360 (Ky. 1999)). Additionally, the trial court.

is obligated to "instruct the jury on all lesser-included offenses which are

supported by the evidence." Yarnell v. Commonwealth, 833 S.W.3d 834, 837.

(Ky. 1992).

         Kentucky Revised Statute (KRS) 506.080 sets forth the elements of .

· criminal facilitation to commit a crime and states in pertinent part, "[a] person

is guilty of criminal facilitation when, acting with knowledge that fill:Other

person is committing or intends to commit a crime, he engages in conduct

which knowingly provides such person with ineans or opportunity for the
                                  .                                      .




                                              13

           I
 commission of the crime and which in fact aids such p'erson to commit the

 crime."

       At trial_, Fairley requested the trial court to instruct the jury on the

 lesser-included offense of facilitation to first-degree robbery. The basis for

 Fairley's request was his testimony that he witnessed an African-~erican

 man beating a white male and offered the assailant a ride to another area of

 town. The prosecutor objected, explaining that in his testimony Fairley did not

 claim knowledge of an ongoing robbery, but rather an assault. Ultimately, the

 trial court declined to instruct the jury on facilitation to first-degree robbery.

       The trial court properly denied Fairley's request for a facilitation to first- ·

degree robbery jury instruction as it was not supported by the evidence. In his

trial testimony, Fairley explicitly denied knowing that a robbery w~s taking

place, claiming instead that he witnessed an assault. To facilitate first-degree

robbery, Fairley needed to have knowledge that an individual was committing

or intending to commit robbery and then take steps to aid them in the

completion of the criminal offense. As Fairley denied knowing that a robbery'

·was ongoing, he lacked the requisite mental state to commit facilitation to first-

degree robbery. Accordingly, the trial court properly denied Fairley's requested

jury instruction.
                      '
III. There was Sufficient  Evidence to Convict Fairley of Receiving a Stolen.
     Firearm..           ·       ·                            ·

       Fairley also contends that there was insufficient evidence to sustain his

conviction for recefving a. stolen firearm. He concedes that th.is allegation of
                                  .                               '


error is unpreserved, but has requested that the Court review this allegation of
                                          14
 error for palpab~e error under Kentucky Rule of Criminal Procedure (RCr)

 10.26. The   p~pable   error rule requires reversal when "manifest injustice has
                                                               .   '

 resulted from the _error." Elery_ v. Commonwealth, 368 S.W.3d 78, 98 (Ky. 2012)"

 (quoting RCr _10.26). In ·evaluating whether there has been manifest injustice,

 the Court focuses '~on what happened and whether the defect is so manifest,

 fundamental arid unambiguous that it threatens the integri_ty of the judicial

 process." Marlin v. Commonwealth, 207 S.W.3d 1, 5 (Ky. 2006).

        At trial, the Commonwealth .est~blished the stolen nature. of the firearm

 through the testimony of Officer Ronald Ingram of the Hopkinsville Police

 Department. Officer Ingram recounted. that in June ·2013, he had prepared a·

 report detailing information about a firearm _that had been stolen from an

 automobile.· As part of that :report he recorded the serial number of the weapon

 and entered the information info the National Crime Investigative Center (NCIC)

 database. When Fairley was     arrested~·the   police found that stolen gun in the

 rear passenger compartment of the car in which h,e was sitting, approximately

 a foot away from him.

       At trial~ Fairley denied ownership of the weapon and explained that he

 was _incarcer~ted on the date it was reported stolen. F\lrther, Fairley claimed

 that he did not even realize that the firearm wasii1 the car when he was

 apprehendeq by police, alleging that the gun·had been obscured by newspapers

. in the backseat of the vehicle.

       On appeal,· Fairley contends that there. was insufficient proof presented

 by the Commonwealth to establish that he knew or had reason to know that

                                         15
the firearm was stolen. s While he reiterates that it was not his gun, Fairley
                                            '
raises for the· first -µme the argument that the length of time from when the gun

was stolen to its recovery in Fairley's possession (approximately fifteen months)

was too long to serve as evidence     ~stablishing   Fairley's knowledge that the gun

was stolen. Fairley argues that the presumption in KRS 514 .110(2) which ·

states "[t]he possession by any person of any recently stolen movable property

shall be prima facie evidence that such person knew such property was stolen,". ·

should not apply because a fifteen-month period         i~   too long to be considered

"recently stolen."

      In considering what meaning to give to the term "recently stolen" we note

that "[t]he term 'recently'-in this connection has no fixed and definite meaning,

anc:J. is a variable term, depending upon other circumstances.". Considine v.

United States, 112 .F. 342, 349 (6th Cir. 1901). Admittedly whether the firearm·

at issue was "recently stolen" is a close call given the fifteen-month period

between the theft of the firearm and its recovery_. We note that courts have .

found lengthy lapses of time (albeit shorter than the one presented here) to be

within the permissible time limitation of the presumption. See e.g. Lee v.

United States, ·363 F.2d 469, 475 (8th     Cir~J966)   (lapse of five months from


      s KRS 514.110(1} states:
     · A person is guilty of receiving stolen property when he receives, retains,
       or disposes of movable property.of another knowing that it has been
       stolen, or having reason to believe that it has been stolen, unless the
       property is received, retained, or disposed of with intent to restore it to
       the owner.




                                           16
 time of burglary to apprehension with stolen securities sufficiently· recent. to·

 justif)dnference of guilt); Hale v. United States, 410 F.2d 147, 151 (5th Cir.

 1969) (six-month .period from time of automobile theft to vehicle's recovery - .

 sufficient tojnfer guilty knowledge); But see Gargotta v. United States, 77 F.2d ·

 977, 982 (6th Cir. 1935)' (possession of pistols 293 days after theft, "cannot in
                                             .                      .

 any sense be considered so 'recent a possession as to sustain a finding .of guilty

· knowledge that the property .was stolen.").'.9 ··

        Fairley did not raise this issue at trial     ~ut   now insists that the recovered
                                         .   .                          .         .
 handgun was not·"recently stolen~'.so as to· bring into play the presumption in

.KRS 514.100(2). This argument misses the mark on palpable error review. A

 stolen handgun (used in the robbery of Page given the DNA.analysis) was in

 Fairley's possession. He testified that he did not own ~e gun, he was

 incarcerated when it was stolen, and he did not realize it was in the car he was

 sitting in. However, in his testimony Fairley also admitted to being a convicted
  .                       .                  I                               "

. felon._and a drug dealer and he tried repeatedly to distance himself from the .

. handgun found Within inches of him at the time of his arrest, when he was ·the

 only person seated in the car. We cannot say that the palpable error standard

 is.met here because there simply is no manifest injustice on these facts.




        9 Fairley also cites this Court to Hayes.v. Commonwealth, 175 S.W.3d 574 (Ky.
 2005), in.which the Court noted in dicta that the theft of a motorcycle three to four
 moriths before l.t was recovered .was insufficient to trigger the presumption in KRS
 514.110(2).         . .
                                              .   .

                                             17
· IV. The Commonwealth's Questioning of Fairley Regarding His Violent
    Past Did Not Constitute Palpable Error.                      ·

       Fairley argues·that the.Commonwealth erred by impermissibly

 questioning him a1;>0ut a prior.bad.act- an assault; He concedes that this

argument, is unpreserved and again requests palpable error review under RCr

 10.26.

      During Fairley's direct examination, he opined that he was a "nice" guy.

On cross-examination, the following exchange occurred:

      Prosecutor: You said you ~ere a· nice person, do nice.people
      assault people?

      Fairley: I'm not gonna say nice people don't assault people, I feel if


      Prosecutor: Have you ever assaulted anyone?

      Fairley: Yes sir'.

      Prosecutor: Ok.

      The Commonwealth.contends that Fairley "opened the door," to the

discussion of his prior assault by claiming to be a "nice" person. Fairley

contends that the Commonwealth wa~ not permitted to address          sp~cific

iJ;lstanc~s of Fairley's co.nduct, such as his prior assault.

      "Generally stated, 'opening the door' to otherwise inadmissible evidence

is a form of waiver that happens when one party's use of inadmissible eyidence

justifies the opposing party's rebuttal ofthatevidence with equally

inadmissible proof." Commonwealth v. Stone, 291 S.W.3d 696,      701~02     (Ky.
 opinion, and is barred from raising specific instances of conduct. Purcell v.

 Commonipealth, 149 S.W.3d 382, 399 (Ky. 2004) overruled on other grounds by

 Commonwealth       v. Prater, 324 S.W.3d 393, 400-01   (Ky·. 2010) (citing Kentucky

 Rule 9f Evidence (KRE) 405(a)).

       In the case at bar, tl}.e Commonwealth imperniissibly questioned Fairley

 about a prior. bad act - the assault - to rebut his assertion of good character.

 While the Commonwealth's questioning was improper, we do not find that the

 introduction of this evidence rises to the level of P.alpable error. We note. that·

 the.questioning about Fairley's prior assault was brief and made up a fleeting

 portion of his trial, while the evidence of Fairley's guilt was substantial. We
                .     .   .   .   '

· thus conclude that while the Commonwealth's que_stioning of Fairley about his

 prior assault was error, this error was not palpable.

                                      CONCLUSION

       For the foregoing reasons, we affirm the conviction and sentence of the

Christian Circuit Court.

       All sitting. All concur.




                                          19
COUNSEL FOR APPELLANT:

John Gerhart Landon
Assistant.Public Advocate
Department of Public Advocacy


COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Perry Thomas Ryan
Aasistant Attorney General




                                20
                jupr:em:e dlaud nf Ii:enfurku
                              . 2016-SC-000021-MR


JOHN FAIRLEY, III                                                        APPELLANT


                 ON APPEAL FROM CHRISTIAN CIRCUIT COURT
v.                  HONORABLE ANDREW C. SELF, JUDGE
                             NO. 14-CR-00551


COMMONWEALTH OF KENTUCKY                                                  APPELLEE.


                            ORDER OF CORRECTION

      The· Opinion of the Court by Justice Hughes rendered on September 28,

201 7, is corrected on its face by the substitution of the attached Opinion in

lieu .of the original Opinion. The·
                               .
                                    correction. does not. affect the holdjng of the
                                                                                '   '


original opinion rendered by .the Court. ·

      ENTERED: October 20, 2017




            J
