author: Justice JOHNSTONE. Justice ROACH.

text:
    Lewis Earl DAVENPORT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2002-SC-0483-MR.
    Supreme Court of Kentucky.
    Oct. 20, 2005.
    Rehearing Denied Dec. 22, 2005.

      Randall L. Wheeler, Assistant Public Advocate, Frankfort, Counsel for Appellant.
    Gregory D. Stumbo, Attorney General of Kentucky, John R. Tarter, Samuel J. Floyd, Jr., Michael Harned, Assistant Attorneys General, Criminal Appellate Division, Frankfort, Counsel for Appellee.
   Opinion of the Court by

Justice JOHNSTONE.

Appellant, Lewis Earl Davenport, appeals from a judgment of the McCreary Circuit Court. Following a jury trial, Appellant was found guilty of murder and first-degree robbery. He was sentenced to fifty years’ imprisonment for the murder conviction and received ten years’ imprisonment for the robbery conviction, to be served concurrently. He now appeals as a matter of right, alleging five trial errors: (1) that the trial court erred when it refused to allow defense counsel to cross-examine a witness regarding his probationary status; (2) that defense counsel was improperly prohibited from cross-examining a witness regarding her financial affairs; (3) that the trial court erred in allowing a police detective to testify regarding his observations as to the demean- or of another witness; (4) that he was improperly denied a request for funds with which to hire an expert witness; and (5) that his motion for a directed verdict of acquittal was improperly denied. For the reasons set forth herein, we affirm.

Background

Patrick Perkins was found dead in his home in McCreary County at about 9 p.m. on January 5, 2001. Emma Ross, a friend of Perkins, was the first to discover his body. Unable to revive him, she eventually summoned Perkins’ sister, Phoebe Burke, and Burke’s boyfriend, Cleo Wilson, to the house for assistance. Burke arrived and immediately called 911. In response, McCreary County Sheriffs Deputy Freddie Clark arrived at the scene. Kentucky State Police Trooper Craig Reed and Kentucky State Police Detective Colan Harrell were later summoned to the scene as well.

Perkins’ home was in disarray, with blood on the wall and furniture overturned. Harrell also found three spent shell casings on the floor near the body. A fourth casing was underneath the body. A cane was found next to the body. The investigators noticed that Perkins’ pants pockets were turned out and empty and that Perkins’ .25 caliber pistol was missing, though two other pistols and $247 in cash remained in the home. A medical examiner determined that Perkins had received four shots to his chest, neck and head, and that his arms and wrists sustained defensive wounds.

When interviewed, Appellant admitted that he had been at Perkins’ home on the evening of January 5. Appellant explained that he had gone to Tennessee to visit the Wooden Nickel Bar that evening, but had left the bar around 7:30 p.m. and was taken to his nephew’s home in Pine Knot, Kentucky. Eventually, Appellant asked his nephew, Chris Davenport, for a ride to Perkins’ home for the purpose of buying whiskey. According to Appellant, he obtained the whiskey and left Perkins’ home, walking several miles to Ruby Davis’s house. Davis confirmed that Appellant visited her home on the evening of January 5, but stated that Appellant did not have a bottle of whiskey with him when he arrived.

Chris Davenport (hereinafter Davenport) testified that he drove his uncle to Perkins’ home, arriving a little after 8 p.m. Shortly after his uncle entered the home, Davenport saw Appellant “bounce off the front door” and heard a male voice cry, “please, don’t kill me.” Davenport stated that the screaming voice was not that of his uncle. Scared, he left, leaving Appellant at Perkins’ home. He went alone to the home of Charles Stephens. Davenport told Stephens that he believed a fight was occurring at Perkins’ house and that someone might be hurt. Stephens called Perkins’ home, but no one answered. Davenport then went home; Appellant arrived the following day at five o’clock in the evening. According to Davenport, Appellant instructed him to deny leaving his uncle at Perkins’, and to say instead that he had dropped Appellant off at Ruby Davis’ house.

A McCreary County Grand Jury returned a two count indictment against Appellant, charging him with murder and robbery. He was tried before a jury and found guilty on both counts. Appellant was sentenced to fifty years’ imprisonment for murder, and ten years’ imprisonment for robbery, to run concurrently. This appeal followed.

Cross-Examination of Chris Davenport

Appellant first challenges the trial court’s refusal to permit defense counsel to cross-examine Chris Davenport about his probationary status and his pending misdemeanor charges. On avowal, Davenport testified that he was on probation from the Pulaski Circuit Court at the time of his cooperation with McCreary County police and at the time of his testimony. He also revealed that he was presently in jail awaiting trial in McCreary County on two misdemeanor charges at the time of his testimony.

Appellant argues that the proposed cross-examination was necessary to impeach Davenport’s credibility, by establishing the possibility that Davenport may have cooperated with the McCreary County police in anticipation of leniency regarding his probation in Pulaski County. Moreover, defense counsel wished to establish that an even greater potential for bias existed where Davenport was facing two misdemeanor charges in McCreary County at the time of the trial. Appellant claims the exclusion of that testimony violates his Sixth Amendment right to cross-examine the prosecution’s witnesses. The Commonwealth asserts that the trial court acted well within its discretion to limit the cross-examination of Davenport or, in the alternative, the prohibition was harmless.

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). Indeed, the trial courts “retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” 475 U.S. at 679, 106 S.Ct. at 1435. 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).

Therefore, a limitation placed on the cross-examination of an adverse witness does not automatically require reversal: the “denial of the opportunity to cross-examine an adverse witness does not fit within the limited category of constitutional errors that are deemed prejudicial in every case.” Van Arsdall, 475 U.S. at 682, 106 S.Ct. at 1437. Rather, a reviewing court must first determine if the Confrontation Clause has been violated. The Court explained:

While some constitutional claims by their nature require a showing of prejudice with respect to the trial as a whole, the focus of the Confrontation Clause is on individual witnesses. Accordingly, the focus of the prejudice inquiry in determining whether the confrontation right has been violated must be on the particular witness, not on the outcome of the entire trial.... We think that a criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby “to expose to the jury the facts from which jurors ... could appropriately draw inferences relating to the reliability of the witness.” Respondent has met that burden here: A reasonable jury might have received a significantly different impression of [the witness’] credibility had respondent’s counsel been permitted to pursue his proposed line of cross-examination.

475 U.S. at 680, 106 S.Ct. at 1435-36 (internal citations omitted).

The Supreme Court, in Van Arsdall, made clear that the trial court enjoys discretion to limit cross-examination of an adverse witness, even when the limitation is placed on evidence of bias: the Sixth Amendment “does not prevents] a trial judge from imposing any limits on defense counsel’s inquiry into the potential bias of a prosecution witness.” 475 U.S. at 679, 106 S.Ct. at 1435. In delineating the boundaries of the trial court’s discretion in limiting cross-examination, 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.” Commonwealth v. Maddox, 955 S.W.2d 718, 721 (Ky.1997), citing United States v. Boylan, 898 F.2d 230, 254 (1st Cir.1990). The Court of Appeals has likewise observed: “In weighing the testimony the jury should be in possession of all facts calculated to exert influence on a witness.” Spears v. Commonwealth, 558 S.W.2d 641, 642 (Ky.App.1977).

Thus, reviewing courts have found reversible error when the facts clearly support an inference that the witness was biased, and when the potential for bias exceeds mere speculation. In Van Arsdall, the Confrontation Clause violation occurred when the trial court excluded evidence that a key prosecution witness’s criminal charge had been dismissed after he agreed to talk with investigators about the murder, an agreement which the witness readily acknowledged. 475 U.S. at 676, 106 S.Ct. at 1432. In Spears, error occurred when the trial court excluded evidence that the principal prosecution witness had an indictment pending at the time of trial in the same county. Id. In Williams v. Commonwealth, this Court determined that the trial court should have permitted defense counsel to question a key witness about the possibility of a “deal” with the Commonwealth. 569 S.W.2d 139 (Ky.1978). In Williams, though, evidence supporting the Inference of bias was strong: the key witness refused to testify at the defendant’s first trial unless he was released from jail, he was in fact thereafter released, the conviction was later vacated, and he admittedly refused to incriminate the defendant until after he had spoken with a government agent. Cf. Nunn v. Commonwealth, 896 S.W.2d 911 (Ky.1995) (finding no violation of appellant’s confrontation rights where the trial court prohibited cross-examination of a key witness regarding pending charges against him, particularly in light of the extensive cross-examination that was permitted and the potential for juror confusion).

The trial court does not err in limiting evidence of potential bias when there is a lack of credible evidence supporting the inference. In Bowling v. Commonwealth, a factually analogous case, we concluded that the mere fact of a witness’s pending indictments in an adjacent county were insufficient to infer that the witness was motivated to testify in an effort to curry favor with the Commonwealth’s Attorney. 80 S.W.3d 405, 411 (Ky.2002). The Court in Bowling was persuaded by the fact that the prosecuting attorney, in reality, had no jurisdiction to grant any leniency to the witness with respect to charges in another county. “Since there was no connection between [the prosecuting attorney] and the case against [the witness] in Fayette County, the pending Fayette County indictments were not admissible.” Id. The Court also took note that Bowling offered no evidence that supported his claim that the witness had been offered leniency to testify.

Turning to the present matter, we cannot conclude that the trial court prevented a “reasonably complete” picture of Davenport’s veracity, bias, and motivation. At the outset, it must be noted that the prohibition on bias evidence was the only limitation imposed by the trial court; defense counsel was otherwise free to cross-examine Davenport, though choosing to conduct a fairly brief examination. During direct examination, Davenport revealed his prior felony conviction, and that he “has some problems” in his life. On cross-examination, defense counsel’s strategy was to establish that the police had intimidated Davenport into making his statement. To this end, defense counsel questioned Davenport about the night he gave his initial statement to the police, and established that Davenport had been taken from bed to give the statement and that the police had shown him a knife. Defense counsel also emphasized that Davenport only gave the statement some two weeks after the incident. However, defense counsel’s strategy was stymied somewhat when Davenport could not remember if the police had read him his rights prior to questioning him, and when he denied that the police had threatened to charge him or had talked about giving him “an out concerning this case.”

Of course, central to our analysis is the character of the excluded evidence. On avowal, Davenport testified that he was on active probation in Pulaski County and that he was presently in jail on pending misdemeanor charges in McCreary County. Davenport also stated that no one had moved to revoke his probation in Pulaski County but that, if it were revoked, he would have five years to serve. The Commonwealth asked Davenport if “anyone made [him] promises with regard to [his] testimony and [his] probation up in Pulaski County” to which Davenport responded “no.” Therefore, in summary, if no prohibition had been placed on cross-examination, the jury would have learned that Davenport was on active probation in an adjacent county and awaiting misdemeanor charges in the venue county, but that no offer of leniency had been made in exchange for his testimony.

The burden espoused in Van Arsdall is whether a “reasonable jury might have received a significantly different impression of [Davenport’s] credibility had [defense] counsel been permitted to pursue his proposed line of cross-examination.” 475 U.S. at 680, 106 S.Ct. at 1436 (emphasis added). Even if Appellant’s . defense counsel had elicited Davenport’s avowal testimony on cross-examination, it is simply too speculative to conclude that the jury would have received a significantly different picture of Davenport. The jury was already aware that Davenport was a convicted felon, that he had “problems” in his life, and that he was clearly reluctant to cooperate with police. The only new information to be learned was that Davenport was also on probation in a neighboring county and had pending misdemeanor charges in the venue county. Of course, it is fair to assume that if the jury had learned this information, the Commonwealth would have strenuously emphasized that absolutely no offer of leniency had been made. The Commonwealth would likely have emphasized an additional crucial fact: at the time he gave his statement to the police, Davenport had not yet committed or been charged with any misdemeanor in McCreary County, and his statement differed in no way from the testimony he gave at trial.

We must also, though, consider the impact of Davenport’s avowal testimony in terms of the entire trial. In rejecting an automatic reversal rule, the Van Arsdall Court explained that any Confrontation Clause inquiry must be fact specific: “Davis plainly rests on the conclusion that on the facts of that case, the error might well have contributed to the guilty verdict.” 475 U.S. at 683, 106 S.Ct. at 1437 (emphasis added). In Davis, the trial court prohibited evidence that the sole eyewitness, Green, was on probation for burglary. Green had observed the defendants burying a stolen safe on his own property. On direct examination, Green testified that he was not concerned that the police might suspect he was involved in the burglary and denied having ever been the subject of a police interrogation. Recognizing that evidence of Green’s probationary status’would have directly contradicted this testimony, the Court emphasized that “Green’s testimony was ‘crucial’ and that there was a ‘real possibility’ that pursuit of the excluded line of impeachment evidence would have done ‘serious damage to the strength of the State’s case.” ’ Id. (quoting Davis v. Alaska, 415 U.S. 308, 319, 94 S.Ct. 1105, 1112, 39 L.Ed.2d 347 (1974)). Other reviewing courts have been similarly persuaded to reverse when the adverse witness gives testimony that directly contradicts that of another key witness, and when the testimony lacks believable corroboration. See Commonwealth v. Cox, 837 S.W.2d 898 (Ky.1992) (finding limitation on cross-examination of key prosecution witness to be error, as witness’s testimony directly contradicted that of the victim and was corroborated only by the witness’s own family)-

Unlike the factual scenario in Davis, Davenport lacked an implicit motivation to divert suspicion away from himself: Appellant never attempted to implicate Davenport in the crime, or otherwise identify him as a potential perpetrator. Furthermore, Davenport never gave inconsistent testimony; his testimony at trial differed in no way from the statement he originally gave investigators. Most importantly, Davenport’s testimony was corroborated in nearly every material respect. According to his own statement to police, Appellant went to Perkins’ home on January 5 to trade his cane for whiskey. He admitted that he left the Wooden Nickel shortly before 8 p.m. and that his nephew drove him to Perkins’ home, as Davenport also testified. The physical evidence corroborated Davenport’s testimony that a fight occurred — Perkins’ home was found in disarray and his arms revealed defensive wounds consistent with a struggle. Randy Hazlett confirmed that Appellant left the Tennessee bar around 7:45, which supported Davenport’s claim that Appellant arrived at his home around 8 p.m. Rena Stevens saw a gray van pulling into Perkins’ driveway around 8:05, and that it was gone about ten minutes later. This testimony is consistent with Davenport’s claim that he dropped his uncle at Perkins’ home, heard the fight, and promptly left. And finally, Charlie Stephens corroborated Davenport’s testimony that he left Perkins’ home and went to the Stephens’ household. Mr. Stephens also testified that Davenport was concerned that his uncle had been shot.

Upon a thorough review of the entire record, we determine that the trial court did not err in prohibiting evidence of Davenport’s probation in Pulaski County or his pending misdemeanor charges in McCreary County. While a witness’s pending charges or probationary status alone may, in some cases, be a satisfactory basis upon which to infer bias, the facts in evidence here were simply insufficient to support the inference of Davenport’s bias. Other than the plain fact of Davenport’s probationary status, defense counsel offered no evidence whatsoever to support the claim that he was motivated to testify in order to curry favor with authorities. Nor was there any evidence that prosecutors had offered Davenport a “deal” for his testimony. In short, the claim was purely speculative. Furthermore, with respect to evidence of Davenport’s pending misdemeanor charges, it must be emphasized that Davenport gave his initial statement to the police prior to being charged with the misdemeanors in McCreary County, and prior to the date of the alleged commission of these misdemeanors. It is patently unreasonable for Appellant to argue that Davenport gave a statement to police in order to curry favor with authorities regarding a misdemeanor he had not yet committed.

In Kentucky, the 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). This Court has long held that trial courts enjoy broad discretion in regulating cross-examination. Moore v. Commonwealth, 771 S.W.2d 34, 38 (Ky.1988). Here, the trial court did not abuse its discretion.

Cross-Examination of Emma Ross

Appellant next argues that the trial court erred in prohibiting defense counsel from cross-examining Emma Ross regarding her financial status, thereby denying him the right to present a defense of an alternate perpetrator. During cross-examination, Ms. Ross testified that she entered Perkins’ home to find him lying on the ground, and only minutes later phoned Phoebe Burke for assistance. However, there were no other witnesses to corroborate Ms. Ross’s story, and defense counsel sought to convey to the jury the possibility that Ms. Ross had actually arrived at Perkins’ home earlier. Then, in an effort to identify a motive to accompany the alleged opportunity, defense counsel attempted to establish that Ms. Ross killed Perkins because she was in debt at the time of the murder.. The trial court did not allow defense counsel to pursue this line of questioning; however, on avowal, it was established that Ms. Ross was in debt to Ford Motor Company at the time of Perkins’ death and that she was aware that Perkins usually had substantial amounts of money in his home as a result of his bootlegging and gambling operations. No other restrictions were placed on the cross-examination of Ms. Ross.

In determining the scope of cross-examination on collateral issues, the trial court must first determine if the proposed cross-examination is relevant pursuant to KRE 402. The trial court must then balance the probative value of the evidence against its prejudicial effect. KRE 403. While this Court has recognized the wide latitude afforded criminal defendants in conducting cross-examination, “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). “A defendant is not at liberty to present unsupported theories in the guise of cross-examination and invite the jury to speculate as to some cause other than one supported by the evidence.” Id. Here, we conclude that the trial court did not abuse its discretion in limiting the cross-examination of Ms. Ross, as defense counsel failed to establish a satisfactory connection between the proposed testimony and the facts in evidence.

Appellant sought to introduce evidence of Ms. Ross’s debts in order to identify her as the murderer, however the record reveals virtually no evidence to support the theory that Ms. Ross killed Perkins. Appellant relies solely on the possibility that Ms. Ross lied about the time she arrived at Perkins’ home to assert that she had the opportunity to commit the crime. However, this possibility was supported only by the lack of corroborating evidence. To establish a motive to accompany the alleged opportunity, Appellant relies only on Ms. Ross’s outstanding debt. Considering that the vast majority of ordinary citizens are in debt to one or more creditors at any given time, and frequently delinquent in those debts, the relevance of„a witness’s overdue debt to a leasing company is debatable. Even assuming arguendo that Ms. Ross’s financial situation is relevant, such testimony is very likely to confuse and mislead the jury, by allowing the defense to create a theory of the case that is otherwise unsupported by the evidence in the hopes that one juror might be taken in. Therefore, the trial court acted well within its discretion in prohibiting defense counsel from cross-examining Ms. Ross regarding her outstanding debts.

Testimony of Detective Harrell

Appellant next cites error where the trial court overruled defense counsel’s objection to certain portions of Detective Harrell’s testimony. On direct examination, Detective Harrell was asked whether he had experience in assessing people’s reactions and how they react under certain circumstances, and whether Ms. Ross’s demeanor was consistent with the story she had given the officers. He replied affirmatively to both questions. Defense counsel objected to these questions based on hearsay and the form of the question.

Appellant now argues that the trial court erred in allowing this line of questioning, because it essentially permitted Detective Harrell to vouch for the credibility or truthfulness of Emma Ross. However, this objection was never presented to the trial judge for consideration, and defense counsel failed to object on the grounds that Detective Harrell was attempting to vouch for Ms. Ross’s credibility. “If a party does not timely inform the trial judge of the alleged error and request the relief to which he considers himself entitled, the issue is not preserved for appellate review.” Stringer v. Commonwealth, 956 S.W.2d 883, 888 (Ky.1997). Therefore, as the issue is not preserved, the ruling of the trial court is affirmed.

Denial of Funds with which to Hire an Expert

Appellant next claims that the trial court committed reversible error by denying defense counsel’s motion for funds with which to hire a crime scene investigation expert. KRS 31.110(l)(b) provides that needy defendants charged with serious crimes are entitled to “necessary services and facilities of representation including investigation and other preparation” and the court shall waive the cost of such services. The services to be provided are those that are “reasonably necessary.” Hicks v. Commonwealth, 670 S.W.2d 837, 838 (Ky.1984). The applicable standard of review of a denial of funds under KRS 31.110 is abuse of discretion, and the reviewing court must limit its analysis to those reasons presented to the trial court. Dillingham v. Commonwealth, 995 S.W.2d 377, 381 (Ky.1999).

The basis of defense counsel’s motion for funds pursuant to KRS 31.110 was that the investigation into Perkins’ death was insufficient and was not conducted pursuant to commonly accepted standards. Defense counsel pointed to numerous procedures and tests that the investigating authorities failed to undertake: Perkins’ core temperature was not taken to determine the specific time of death, no effort was made to determine the owners of several weapons found in Perkins’ home, and that neither fingerprints nor blood samples were taken from Perkins’ home. In other words, defense counsel sought funds with which to hire an expert who would testify as to what should have been done by the investigating authorities in this case. The trial court denied the motion for funds, concluding that the stated goal of defense counsel’s request — to attack the sufficiency of the investigation procedures — could be reached through cross-examination, and was not specific enough to justify an expenditure of funds.

Funds will not be provided pursuant to KRS 31.110 so that defense counsel may conduct a “fishing expedition.” McCracken County Fiscal Court v. Graves, 885 S.W.2d 307, 314 (Ky.1994). Rather, defense counsel must provide specific information that he or she expects the expert to provide at trial, and the request should be denied where defense counsel is only able to express the need for an expert in general terms. Simmons v. Commonwealth, 746 S.W.2d 393, 396 (Ky.1988). A “general” request is precisely the type made by Appellant in the present matter. Despite repeated requests by the trial court, defense counsel was unable to provide any specific reasons why an expert was needed, or any specific information an expert would be able to provide. Rather, defense counsel sought funds for an expert who would undermine the sufficiency of the investigation. We agree with the trial court that this purpose could be, and in fact was, reached by cross-examination of the investigating officers into what procedures were and were not taken in the investigation. Therefore, the trial court did not abuse its discretion in denying defense counsel’s request for funds pursuant to KRS 31.110.

Failure to Direct a Verdict

Appellant’s final claim is that the trial court erred in failing to direct a verdict of acquittal. Appellant argues that the Commonwealth failed to present adequate evidence to support a finding of guilt beyond a reasonable doubt. The standard of review of the denial of a motion for a directed verdict based on insufficient evidence is whether, taking the evidence as a whole, it was clearly unreasonable for a jury to have found the defendant guilty. Commonwealth v. Benham, 816 S.W.2d 186, 187-88 (Ky.1991). The evidence presented by the Commonwealth must be of substance, and a directed verdict is warranted where the prosecution provides no more than a “mere scintilla” of evidence. Id.

As in his previous arguments, Appellant again points to the alleged insufficiency of the investigation of Perkins’ death to justify reversal in this case. Also, Appellant again attacks the credibility of Davenport’s testimony. We do not find these arguments compelling. The Commonwealth presented far more than a “mere scintilla” of evidence to the jury in this case. Among the most persuasive evidence is the fact that Appellant himself admitted visiting Perkins on the night in question, and his cane was found beneath Perkins’ corpse. Furthermore, Davenport testified to having heard a fight or scuffle inside the home while Appellant was present; the physical state of Perkins’ home and defensive wounds found on the body corroborate this testimony. Ruby Davis testified that Appellant arrived at her home on the evening of Perkins’ death, claiming to have been at Perkins’ home to trade his cane for some whiskey. While Appellant’s cane was found at Perkins’ home, Davis testified that Appellant was not carrying a bottle of whiskey when he arrived at her home.

It seems that the crux of Appellant’s argument is that the case against him was based almost entirely on circumstantial evidence. While clearly it was circumstantial evidence that proved him guilty, this fact does not warrant removing the case from the jury. Commonwealth v. Collins, 933 S.W.2d 811, 815 (Ky.1996). A “[c]onvietion can be premised on circumstantial evidence of such nature that, based on the whole case, it would not be clearly unreasonable for a jury to find guilt beyond a reasonable doubt.” Graves v. Commonwealth, 17 S.W.3d 858, 862 (Ky.2000). In cases such as this, where there is a lack of physical evidence or eyewitnesses, the case should nonetheless be submitted to the jury where “when the various items of evidence are added together, a mosaic appears upon which a reasonable jury could look and conclude that appellant was guilty .... ” Davis v. Commonwealth, 795 S.W.2d 942, 947 (Ky.1990). A mosaic is precisely what the Commonwealth created in this case, through the testimony of several witnesses that corroborated Davenport’s incriminating testimony, along with the physical state of Perkins’ home and body. Although defense counsel repeatedly pointed out to the jury the scarcity of physical evidence in this case, and adeptly used cross-examination to create the possibility that another person committed this crime, it was not unreasonable for the jury to conclude that Appellant was Perkins’ murderer. Reversal is not warranted simply because the jury was not persuaded by the doubt that defense counsel attempted to create. We find that the verdict in this case was based on the evidence presented at trial and reasonable inferences drawn therefrom. Therefore, the trial court did not err in denying Appellant’s motion for a directed verdict.

For the foregoing reasons, the judgment of the McCreary Circuit Court is affirmed.

GRAVES, SCOTT, and WINTERSHEIMER, JJ., concur.

ROACH, J., dissents by separate opinion, with LAMBERT, C.J., and COOPER, J., joining that dissenting opinion.

Dissenting opinion by

Justice ROACH.

The trial court erred by failing to allow Appellant (i) to cross-examine Chris Davenport about his probation status and pending charges in other counties, and (ii) to cross-examine Emma Ross about her debts. The first failure was a Confrontation Clause violation, the second a Due Process violation, and these errors are sufficient to require reversal of Appellant’s conviction.

I. CROSS-EXAMINATION OF CHRIS DAVENPORT

The United States Supreme Court has explained that the “primary interest secured by [the Confrontation Clause of the United States Constitution] is the right of cross-examination.” Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965). In describing the importance of cross-examination as a means of questioning a witness’s credibility, the Court has explained:

A more particular attack on the witness’ credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is always relevant as discrediting the witness and affecting the weight of his testimony. We have recognized that 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, 316-17, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (citations, internal quotation marks, and footnote omitted). In Davis, the Court specifically concluded that the trial court’s refusal to allow the defendant to reveal that a key prosecution witness (who provided the crucial link between the defendant and the crime) was on probation denied the defendant “the right of effective cross-examination which would be constitutional error of the first magnitude .... ” Id. at 318, 94 S.Ct. at 1111 (internal quotations and citations omitted).

Similarly, when the trial court prevented Appellant from asking Chris Davenport whether he was on probation from a Pulaski County conviction and in jail on misdemeanor charges in McCreary County, the trial court prevented Appellant from engaging in effective cross-examination. As Professor Lawson has pointed out: “No doubt exists about the admissibility of evidence bearing on what is commonly referred to as the ‘bias’ of the witnesses.” Robert G. Lawson, The Kentucky Evidence Law Handbook § 4.15, at 183 (3d ed.1993). Although “[t]here is no explicit treatment of impeachment by bias in the Kentucky Rules of Evidence,” the “[a]d-missibility of such evidence ... is governed by the provisions on relevancy (Rules 401 and 402).” Id. Professor Lawson explicitly mentions that this Court has determined that defendants have the right to introduce evidence “that a witness has charges pending and is thus motivated to color testimony to please authorities” and “that a witness is on probation or parole under active supervision.” Id. at 185. Appellant’s failure to offer specific evidence that Chris Davenport had “made a deal” or had been guaranteed leniency in his other cases should go to the weight of the evidence as to bias, not its admissibility. The fact of the matter is that the jury can infer from testimony about a witness’s other charges and probation status that the witness might be testifying for the prosecution in order to curry favor, even if that favor were only to have the prosecutor speak favorably to another prosecutor on the witness’s behalf. Consequently, I believe the trial court abused its discretion in limiting the cross-examination of Chris Davenport.

However, the majority is correct that finding the trial court abused its discretion does not end the inquiry. Violations of the Confrontation Clause, including the specific type alleged here, are subject to review for harmless error. Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). The United States Supreme Court described the harmless error analysis as follows:

Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.

Id. at 684, 106 S.Ct at 1438.

In Davis, the witness provided the crucial link between the criminal activity and the defendant; Chris Davenport played a similar role in Appellant’s trial. Chris Davenport’s testimony was not cumulative. He gave the only direct testimony-placing Appellant at the scene, and he gave the only testimony that Appellant entered the house, that it sounded like a fight broke out, and that a man then screamed, “Please don’t kill me.” Overall, the prosecution’s case against Appellant hinged on two key elements: Chris Davenport’s testimony and evidence that the cane found beside Perkins’s body belonged to Appellant. Chris Davenport’s testimony was clearly of fundamental importance to the Commonwealth’s case.

The trial court’s refusal to allow Appellant to develop evidence of Chris Davenport’s possibly biased testimony may have resulted in a misinformed judgment by the jury as to the proper weight to afford that evidence. More importantly, given the crucial nature of Chris Davenport’s testimony, evidence that he may have had an ulterior motive for testifying could have seriously affected the jury’s determination of Appellant’s guilt. Thus, I cannot say that the trial court’s refusal to admit this evidence of Chris Davenport’s bias was harmless error.

II. CROSS-EXAMINATION OF EMMA ROSS

I also believe that the majority is incorrect in concluding there was no error in limiting Appellant’s cross-examination of Emma Ross.

The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State’s accusations. This right, often termed the right to present a defense is firmly ingrained in Kentucky jurisprudence, and has been recognized repeatedly by the United States Supreme Court.

Beaty v. Commonwealth, 125 S.W.3d 196, 206 (Ky.2003) (internal citations and quotation marks omitted).

On cross-examination, Appellant wanted to establish that Ross had a motive for killing Perkins. Another witness testified that Ross, who was involved with another man, was Perkins’s girlfriend and that she knew that Perkins carried large amounts of cash. The jury had also heard testimony from which it could infer that Ross was at Perkins’s residence for two hours before she called for help. Appellant wanted to reveal that Ross owed at least two debts, one which was substantial and for which she had been sued and another for which she had not been sued.

By denying Appellant the right to introduce evidence that tended to show that Ross had a motive to kill Perkins, the trial court essentially short-circuited Appellant’s defense that an alleged alternative perpetrator, i.e., “aaltperp,” committed the murder. See Beaty, 125 S.W.3d at 207. This Court, drawing on the wisdom of Wigmore, recently said that:

“[I]f the evidence [that the crime was committed by someone else] is in truth calculated to cause the jury to doubt, the court should not attempt to decide for the jury that this doubt is purely speculative and fantastic but should afford the accused every opportunity to create that doubt.”

Id. at 209 (alterations in original) (quoting 1A John Henry Wigmore, Evidence in Trials at Common Law § 139 (Tiller’s rev. 1983)).

Having already heard evidence that Ross was dating two men at the same time, that Ross was at Perkins’s residence for two hours before calling for help, and that Ross knew that Perkins typically kept large amounts of cash on hand, the jury would not have been misled by additional evidence that Ross owed at least one substantial debt and had been sued over it. And given that context, I cannot conclude that Appellant’s theory was “purely speculative and fantastic.” But without this last item of evidence of Ross’s potential motive, Appellant’s defense was incomplete and his right to due process of law was denied. “It has been uniformly held by this court that one accused of a crime may introduce evidence tending to prove that the crime was committed by another,” Harvey v. Commonwealth, 266 Ky. 789, 100 S.W.2d 829, 830 (1937), especially whei'e a motive is coupled with an opportunity to commit the crime. Beaty, 125 S.W.3d at 208 (“In a homicide case, a defendant is not entitled to parade before the jury every person who bore some dislike for the victim without showing that the ‘aaltperps’ at least had an opportunity to commit the murder.”). Here, Appellant had evidence of that crucial congruence of motive and opportunity, but the trial court refused to admit it. I believe this was error.

III. CONCLUSION

Clearly, the combined impact of denying Appellant the right to cross-examine Chris Davenport and Emma Ross cannot be said to be harmless beyond a reasonable doubt. Therefore, I respectfully dissent.

LAMBERT, C.J. and COOPER, J„ join this dissenting opinion.

      . Chris Davenport testified that he dropped Appellant off at the victim’s house. A tape of a police interview with Appellant was also introduced wherein he admitted that he had been at the victim's home.


source: Caselaw Access Project

author: Chief Justice LAMBERT.

license: Public Domain

text:
    Joanne BUCKLEY, Appellant v. Hon. Steve Alan WILSON, Judge, Warren Circuit Court, et al. Appellees.
    No. 2004-SC-000727MR.
    Supreme Court of Kentucky.
    Nov. 23, 2005.
    Lee Huddleston, Huddleston & Huddle-ston, Attorneys at Law, Bowling Green, Counsel for Appellant.

      Steve A. Wilson, Judge, Warren Circuit Court, Bowling Green, David B. Sandler, Brent R. Baughman, Greenbaum Doll & McDonald PLLC, Louisville, Counsel for Appellees.
   Opinion of the Court by

Chief Justice LAMBERT.

Appellant Joanne (Joan) Buckley appeals from the Court of Appeals’ denial of a writ of prohibition in which she sought to prevent the trial court from enforcing a pretrial order. Specifically, the order bars Appellant from presenting her claim for intentional infliction of emotional distress (IIED) to the jury. Because Buckley has failed to make the requisite showing for extraordinary relief, we affirm the Court of Appeals.

Buckley began working for The Kroger Company, d/b/a Country Oven Bakery, in 1981. She asserts that in 1996, the company forced her to discover and report to management any mistakes made by one of her fellow male co-workers, or alternatively be held responsible for his mistakes. She avers that this put her in a precarious position because she feared the co-worker and believed him to be dangerous. A few months after the management directive, the stress of the situation prompted Buckley to seek a physician’s care. Despite being diagnosed with post-traumatic stress disorder, Buckley continued to work for approximately six more months. However, in April 1997, she went on full-time medical leave.

In May 1997, Buckley filed suit against the company under KRS 344.040 for disability discrimination and asserted a common law claim of IIED. In March 1998, she sent the Kroger Company a letter, indicating that she could return to her position if the company would make certain accommodations required by her physician, but the company refused, explaining that the accommodations would prevent her from doing the essential elements of her job. Buckley’s one-year medical leave, the maximum allowed by the company, ended on April 9, 1998, leaving her unemployed.

Buckley pursued her claims against the company and prevailed on both the IIED claim and the disability discrimination claim. A jury awarded Buckley punitive as well as compensatory damages, medical expenses and damages for humiliation. Buckley’s claims were combined for the purpose of awarding damages, preventing the Court of Appeals from determining the amount awarded for each claim. The company appealed the jury’s verdict and the Court of Appeals vacated and remanded the case, holding that under its recent decision in Wilson v. Lowe’s Home Center, Buckley’s IIED claim was subsumed by her discrimination claim. Wilson held that a claim under Kentucky’s discrimination statutes preempted any common law claim such as IIED. Thus, the Court of Appeals vacated the judgment and remanded the case for a new trial. Buckley chose not to seek discretionary review in this Court.

Buckley’s original claim for damages alleged both statutory discrimination and common law IIED. However, after litigation was already underway, Kroger refused to make reasonable accommodations upon receipt of the March 1998 letter wherein Buckley requested to return to work under restrictions established by her physician. She contends that this latter action, alone, supports the discrimination claim, while the company’s prior conduct which forced her medical leave supports the IIED claim. Buckley interprets Wilson to prohibit concurrent prosecutions of IIED claims and KRS Chapter 344 claims, only where the claims are based on the same set of facts. Thus, on remand, Buckley amended her claim for damages in an attempt to separate the company’s conduct into two distinct sets of facts, one which supported the IIED. claim and another which supported the discrimination claim. However, the trial court entered an order prohibiting Buckley from pursuing both claims. Buckley sought a writ of prohibition to prevent the trial court from enforcing this order.

Before we address the merits of Buckley’s argument, we must evaluate the prerequisites for entitlement to extraordinary relief. Because the trial court’s order is interlocutory, immediate appeal is not available. However, remedies traditionally available through common law writs, such as mandamus and prohibition, are allowed by the Rules of Civil Procedure. Thus, Buckley brought an original action in the Court of Appeals for an extraordinary writ. She requested that the Court of Appeals clarify its earlier opinion and direct the trial judge to permit her to pursue both claims upon retrial of the case. The Court of Appeals denied Buckley’s petition and she appeals to this Court.

Extraordinary writs are disfavored, but may be appropriate when a lower court is acting without jurisdiction or acting erroneously within its jurisdiction. In her brief to this Court, Buckley states, “[technically this effort by Appellant to obtain relief pursuant to CR 76.36 is probably similar to those cases involving actions by the trial court within the trial court’s jurisdiction where no adequate appeal is available and the petitioner would be irreparably harmed. But, in reality, it is an effort to prevent a court from acting outside of its jurisdiction.” Buckley argues, in essence, that the appellate court’s directive, if correctly interpreted by the trial court, allows the appellate court to determine the facts of the case upon retrial. She points out that jurisdiction to determine the facts is reserved exclusively for the jury.

Buckley has improperly framed the issue. As noted, she chose not to seek review of the Court of Appeals’ initial decision which held, “[o]n remand, Wilson will operate to bar the concurrent prosecution of KRS Chapter 344 and IIED/outrageous conduct claims.” But in her writ petition she took issue with the trial court’s interpretation of this directive. She claims that the trial court’s interpretation renders the Court of Appeals’ opinion outside of its jurisdiction.

The trial court’s order acknowledged that it was bound by the appellate court’s decision which included the above directive. Essentially, the trial court determined that its ruling was mandated by the law-of-the-case doctrine. The law-of-the-case doctrine describes a principle which requires obedience to appellate court decisions in all subsequent stages of the litigation. Thus, on remand, a trial court must strictly follow the mandate given by an appellate court in that ease. “The court to which the case is remanded is without power to entertain objections or make modifications in the appellate court decision. It necessarily follows, therefore, that if a party is aggrieved by an adverse appellate determination, his remedy is in an appellate court at the time the adverse decision is rendered.”

As previously stated, Buckley did not seek review of the Court of Appeals’ initial decision. Instead, after the trial court interpreted that decision, she attacked the trial court’s interpretation in her writ petition. However, it was the trial court’s duty to interpret and apply the controlling appellate court decision. A trial court, in interpreting an appellate court’s decision, is not acting outside its jurisdiction even if its interpretation is erroneous. That brings us to the prerequisites of obtaining an extraordinary writ where the court is alleged to be acting erroneously, though within its jurisdiction.

In such cases, the appellant must make a threshold showing before we review the merits of the alleged error. Namely, there must be a showing that the appellant has no remedy by appeal and, in most cases, there must also be a showing of irreparable injury. In the instant case, Buckley has not shown that she lacks an adequate remedy by appeal. If the trial court incorrectly interpreted the Court of Appeals’ opinion, its order disallowing submission of the IIED claim to the jury will be subject to appellate correction.

Buckley’s argument for inadequacy of a remedy by appeal centers on the delays involved in every lawsuit and appeal, including the practical difficulties of fading memories and unavailability of witnesses. However, this argument has been explicitly rejected by this Court in the past. For example, in National Gypsum Company v. Corns, we stated, “the delay incident to litigation and appeal by litigants who may be financially distressed cannot be considered as unjust, does not constitute irreparable injury, and is not a miscarriage of justice.”

For the foregoing reasons, we affirm the Court of Appeals’ decision to deny Buckley’s petition for an extraordinary writ.

All concur.

      . The Kroger Co. v. Buckley, 113 S.W.3d 644 (Ky.App.2003).

      . Buckley, 113 S.W.3d 644.

      . 75 S.W.3d 229 (Ky.App.2001).

      . Buckley, 113 S.W.3d 644.

      . KRS 344.010 et. seq.

        . Id.

      . Fritsch v. Caudill, 146 S.W.3d 926 (Ky.2004).

      . CR 54.02. See also Vaught v. Vaught, 296 Ky. 754, 178 S.W.2d 590 (1944).

      .CR 81.

      . Kroger moved to strike Buckley's reply brief to this court. Our ultimate determination to affirm the Court of Appeals' denial of her writ petition renders this issue moot.

      . Bender v. Eaton, 343 S.W.2d 799 (Ky.1961).

      . Inman v. Inman, 648 S.W.2d 847 (Ky.1982).

      . Williamson v. Com., 767 S.W.2d 323 (Ky.1989) (citing City of Lexington v. Garner, 329 S.W.2d 54 (Ky.1959) and E’Town Shopping Center, Inc., v. Holbert, 452 S.W.2d 396 (Ky.1970)).

      . Williamson, 767 S.W.2d at 325.

      . Williamson, 767 S.W.2d 323.

      . Id.

      . Bender, 343 S.W.2d 799.

      . Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803 (Ky.2004).

      . 736 S.W.2d 325, 328 (quoting Ison v. Bradley, 333 S.W.2d 784, 786 (Ky.1960)).


author: Justice SCOTT. Justice ROACH.

text:
    Harold L. THOMPSON, Appellant v. COMMONWEALTH of Kentucky, Appellee.
    No. 2004-SC-000217-DG.
    Supreme Court of Kentucky.
    Nov. 23, 2005.

      Richard Edwin Neal, Assistant Public Advocate, Department of Public Advocate, Frankfort, Counsel for Appellant.
    Gregory D. Stumbo, Attorney General of Kentucky, Todd D. Ferguson, Assistant Attorney General, Frankfort, Counsel for Appellee.
   Opinion of the Court by

Justice SCOTT.

This case comes to us on discretionary review of the Court of Appeals’ opinion affirming the judgment of the Fayette Circuit Court, which denied Appellant’s claim for RCr 11.42 relief. We granted review to determine whether the lower court erred in finding the Appellant did not receive ineffective assistance of counsel, and thus was not entitled to a new trial. After reviewing the record, we reverse the Court of Appeals, vacate Appellant’s convictions and sentence, and remand this case back to the trial court for a new trial.

I. Facts

This case involves a tragic motorcycle accident that killed eight-year old Autumn Roaden. Appellant was driving his motorcycle in a residential neighborhood in Lexington, Kentucky, when Autumn and her twelve-year old brother, Kyle, ran from their house out into the street chasing after their escaped puppy. Appellant struck and killed young Autumn. He claimed at trial that the accident was unavoidable in that he never saw the child before impact. There was disputed evidence as to whether cars were parked in the area at the time of the accident.

Evidence at trial showed Appellant’s blood alcohol level was .10 approximately three hours after the accident. Appellant’s explanation was he had consumed alcohol after the accident, but had only had a “swig” of beer some hours before the accident. Urine tests performed after the accident showed traces of marijuana, pain reliever and anti-depressant medication. Blood test results confirmed no presence of drugs in Appellant’s blood, but a trace of marijuana. Appellant admitted though, that he was taking his pain and anti-depressant medication as prescribed. Additionally, witness testimony confirmed Appellant fled the scene of the accident and originally lied to the police about his involvement before finally admitting he was the driver of the motorcycle.

Officer Paul Sims was an investigating officer the night of the accident. He also performed an accident reconstruction of the scene and testified at trial regarding his findings. In his assessment, Officer Sims utilized an English study averaging the running speed of eight-year-old boys. Sims adjusted the calculations from the study to estimate the number of feet per second traveled by eight-year old girls (running), and divided this number into the distance from the curb to the scuff-mark, which police took to be the point of impact. From this, Sims testified to his conclusion that Autumn had been in the roadway 3.38 seconds prior to impact.

Using Appellant’s estimated speed of 46 miles per hour, Sims calculated Appellant was some 230 feet away from the point of impact when Autumn first entered the roadway. Therefore, he concluded Appellant would have had 137 feet within which to stop and avoid impact. Sims reiterated this conclusion by testifying Appellant should have been able to stop with some 26 feet to spare.

Based on this and other evidence introduced at trial, Appellant was convicted of reckless homicide and being a persistent felony offender in the first degree. He was sentenced to the maximum, twenty years. Only after the trial was it discovered that Officer Sims had made a crucial mathematical error in his calculations regarding the accident. Officer Sims had misplaced a decimal point, which resulted in an inaccurate calculation of the average running speed for eight-year-old girls.

According to Officer Sims, the English study had reported the average running speed of an eight-year-old boy was 11 feet per second and that an eight-year old boy ran 1.31% to 1.55% faster than eight-year-old girls. He divided 11 by the midpoint range, 1.43%, and concluded eight-year-old girls ran approximately 7.69 feet per second. However, 11 feet per second is 43% faster than 7.69 .feet per second, not 1.43%. The correct calculation is that 11 feet per second is 1.43% faster than-10.845 feet per second. Accordingly, the correct figure for the average speed of an eight-year-old girl under the purported study would have been 10.845 feet per second. However, the corrected calculations prove Appellant would not have been able to stop his motorcycle until some 40 feet after the point of impact.

On appeal, the mathematical error was not identified as such in the briefs, and this Court affirmed the conviction, despite Justice Cooper sua sponte pointing out the error in his dissenting opinion.

Appellant next filed a motion to vacate his sentence pursuant to RCr 11.42 arguing he received ineffective assistance of counsel because his defense attorney (1) did not retain the services of an expert to review and dispute Officer Sims’ calculations; and/or (2) failed to discover the error on his own accord.

The trial court held an evidentiary hearing and overruled Appellant’s motion. Specifically, the court found that Officer Sims’ testimony was not the key to the trial. Instead, the court felt the most . damaging evidence was the fact that Appellant left the scene of the accident. The trial judge stated the trial would have been fairer if Officer Sims’ error had been corrected, but she believed Appellant would still have been convicted, and thus, she denied his RCr 11.42 motion. The Court of Appeals inferred from the trial court’s finding that even if Appellant had shown his counsel’s representation was deficient, he still failed to show any resulting prejudice and thus affirmed the trial court’s ruling.

II. Appellant’s RCr 11.42 Claim

Criminal Rule 11.42 does not authorize relief from judgment for mere errors of the trial court and “[i]n order for the rule to be invoked there must be a violation of a constitutional right, a lack of jurisdiction, or such violation of statute as to make the judgment void and therefore subject to collateral attack.” Tipton v. Commonwealth, 376 S.W.2d 290 (Ky.1963).

Appellant claims he was denied effective assistance of counsel and due process of law when his counsel failed to retain an independent expert to review Officer Sims’ accident reconstruction calculations, or in the alternative, to discover and refute, by his own accord, the mathematical error and resulting conclusion that Appellant should have been able to stop his motorcycle in time to avoid the collision with the victim.

We deem it necessary to point out RCr 11.42 motions are “limited to the issues that were not and could not be raised on direct appeal.” Hodge v. Commonwealth, 116 S.W.3d 463, 467-68 (Ky.2003)(internal citations omitted). “An issue raised and rejected on direct appeal may not be reconsidered in these proceedings by simply claiming that it amounts to ineffective assistance of counsel.” Id at 468. Therefore, we will not address the issue of whether Officer Sims’ testimony should or should not have been admitted into evidence, but only the question of whether Appellant’s counsel’s failure to discover and inform the jury of Officer Sims’ erroneous calculations and conclusions equates to ineffective assistance of counsel.

In order to establish his counsel was ineffective, Appellant must satisfy a two-part test:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)(emphasis added); accord Moore v. Commonwealth, 983 S.W.2d 479, 482 (Ky.1998).

Therefore, we must first evaluate counsel’s performance for errors, keeping in mind “[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. “The performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.” Id.

Appellant bears a heavy responsibility since a court “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky.2001). We are aware that Appellant is not “guaranteed errorless counsel, or counsel judged ineffective by hindsight, but counsel likely to render and rendering reasonably effective assistance.” McQueen v. Commonwealth, 949 S.W.2d 70 (Ky.1997).

Appellant’s counsel testified at the RCr 11.42 hearing that he reviewed Officer Sims’ calculations and chose not to hire an opposing expert because Appellant had consistently conveyed to him, as well as testified, that he never saw Autumn before hitting her. Therefore, counsel believed at the time that the braking distance and the running speed of children were non-factors in the trial. This contrasts with Officer Sims’ testimony that the impact site would have been visible from 444 feet away.

Thus, we believe since trial counsel’s only defense was that the accident was unavoidable, and counsel was aware the prosecution intended to introduce expert testimony establishing the accident was in fact avoidable with normal reaction times, it was unreasonable not to attempt in some way to contest this evidence or at least, ensure its reliability. For one thing, jurors are undoubtedly greatly influenced by the testimony of someone deemed an “expert”. This is especially true if the only countervailing testimony comes from the defendant, the sole person with a strong motive to lie (if the truth would deem him guilty of the crime charged). The Appellant’s testimony in this case — that the accident was unavoidable — should not have been relied on as being of equal weight to rebut Officer Sims’ supposedly scientific accident reconstruction testimony to the contrary.

We are not saying that in all cases an attorney must hire a rebutting expert witness to avoid being deemed ineffective. What is determinative in this case is that the damning expert testimony was clearly erroneous. The error was of such a nature that a non-mathematical expert discovered it on simple review of the calculations. And the fact that no other attorney, or judge, discovered the error until the case reached this Court on direct appeal does not excuse the error. It is the job of Appellant’s counsel, and his counsel solely, to represent the interests of his client. Put simply, no one knew of the error because Appellant’s counsel did not make them aware.

The Commonwealth then was able to use Officer Sims’ erroneous calculations to turn circumstantial evidence of Appellant’s intoxication (possibly after the accident) into certain evidence of intoxication at the time of the accident. They argued a combination of Appellant’s intoxication and speed amounted to reckless behavior. Thus, because Appellant’s level of intoxication was crucial in analyzing whether his behavior should be deemed reckless, Officer Sims’ conclusion that he should have been able to stop with 26 feet to spare, implying Appellant did not have normal reaction times, was far from a non-factor in the trial. We believe under the circumstances of this case, it was unreasonable for Appellant’s counsel not to have either more prudently reviewed Officer Sims’ calculations or to have hired an expert to at least help analyze, if not rebut, his conclusions.

In measuring prejudice, the second prong of the Strickland test cited above, the inquiry is whether there is a reasonable probability that, but for counsel’s errors), the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. 2052(emphasis added); Bowling v. Commonwealth, 981 S.W.2d 545, 551 (Ky.1998), cert denied, 527 U.S. 1026, 119 S.Ct. 2375, 144 L.Ed.2d 778 (1999). The Strickland Court defined reasonable probability as “a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

We find it important that the Strickland Court made clear’ that “reasonable probability” does not mean that counsel’s deficient conduct more likely than not altered the verdict. In specific, the Court stated “[t]he result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.” Id. This Court has also previously clarified a RCr 11.42 movant need not show that counsel’s allegedly deficient performance would have compelled acquittal in order to meet the prejudice prong of Strickland. Norton v. Commonwealth, 63 S.W.3d 175, 177 (Ky.2002).

Accordingly, because the Commonwealth utilized Officer Sims’ calculations and conclusions to prove Appellant was reckless in causing the death of Autumn Roaden, we believe counsel’s failure to discover and inform the jury that Officer Sims’ damaging testimony was based on erroneous calculations that, if corrected, would have supported the defense, was prejudicial error.

Had the error been corrected at trial, the Commonwealth’s witness would have had to admit, on the stand, Appellant could not have stopped in any event. Although we suppose it is possible that a jury could have been informed of Officer Sims’ mistaken calculations and resulting erroneous conclusions and still have decided to convict and sentence as it did the Appellant, that is not the test. See Rompilla v. Beard, — U.S. -, 125 S.Ct. 2456, 2469, 162 L.Ed.2d 360 (2005). It goes without saying that the corrected testimony might well have influenced the jury’s appraisal of Appellant’s guilt or innocence or their recommended sentence. Id. Thus, the likelihood of a different result, if the error had been discovered and corrected by Appellant’s counsel, is “sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

Under the circumstances of this case, we are not such men as can turn our heads from the grossly inaccurate scientific opinions testified to in this case, which indicated the Appellant could have stopped in time — when, with the corrected calculations, the evidence would have been, that he could not!

For the above stated reasons, we reverse and vacate the judgment of convictions and sentence in this case and remand this case back to the trial court for a new trial.

LAMBERT, C.J.; COOPER and JOHNSTONE, JJ., concur.

ROACH, J., dissents by separate opinion with GRAVES and WINTERSHEIMER, JJ., joining that dissent.

Dissenting opinion by

Justice ROACH.

The majority opinion certainly states the proper test from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for establishing whether counsel was ineffective. However, in its analysis of the first prong of Strickland, the majority simply ignores applicable legal standards to achieve the outcome it so desperately wants to reach.

In order to satisfy the first prong of the two-part test announced in Strickland, Appellant “must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687, 104 S.Ct. at 2064. The trial court conducted an eviden-tiary hearing to determine if Appellant could make the requisite showing. At the hearing, Appellant’s counsel testified that he had been a lawyer since 1976 and had handled two to three hundred criminal cases in circuit court, at least ten to twelve of which involved jury trials. He also testified that (i) he had been aware that the Commonwealth intended to introduce accident reconstruction expert evidence; (ii) he had reviewed the evidence; (iii) he had reviewed the math calculation page but had not recognized the error; and (iv) he had considered retaining an expert but felt it was unnecessary because, after Appellant had informed him and the police that he had not seen the victim, he had concluded that the braking distance was not important to the defense. Despite his failure to recognize the calculation error or retain an independent expert, it was also noted at the hearing that Appellant’s counsel nevertheless had objected to the accident reconstruction expert evidence when it was presented at trial.

After considering the evidence introduced at the hearing, the trial court specifically found that Appellant’s trial counsel (i) mounted a “vigorous defense,” (ii) was “very attentive,” and (iii) “missed no objections.” (Emphasis added). With these findings in mind, the trial court ruled that Appellant had failed to show that his trial counsel’s performance was deficient.

An appellate court is to “defer to the determination of the facts and witness credibility made by the trial judge.” Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky.2001). Despite this mandate, the majority has ignored the evidence and the trial court’s findings to hold that Appellant’s trial counsel was ineffective. In doing so, the majority has failed to defer to trial court’s findings and is focused instead on reaching a desirable result. The United States Supreme Court has rejected such an approach:

Thus, an analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective. To set aside a conviction or sentence solely because the outcome would have been different but for counsel’s error may grant the defendant a windfall to which the law does not entitle him.

Lockhart v. Fretwell, 506 U.S. 364, 369-70, 113 S.Ct. 838, 842-43, 122 L.Ed.2d 180 (1993).

Moreover, in focusing solely on the outcome, the majority has ignored the proper analysis under the first prong of the Strickland test. Instead, we should

determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.

Strickland, 466 U.S. at 690, 104 S.Ct. at 2066.

That said, I believe the failure of Appellant’s trial counsel to identify the math error cannot be said to be “outside the wide range of professionally competent assistance.” Trial counsel was an experienced attorney who reviewed the evidence and diligently developed a well-reasoned theory of the case. He actually objected to the totality of the accident reconstruction expert evidence, though this objection was overruled by the trial court. Not a single person, including the several lawyers and the trial judge, identified the math error until Justice Cooper discovered it for the first time on Appellant’s direct appeal.

The majority opinion’s Monday-morning-quarterback approach is contrary to our well-established precedent in this area. Based on this record, it is dubious to claim that trial counsel made errors so serious that he was not functioning as counsel. In reaching this conclusion, the Court has not only ignored the law on this matter but has engaged in an independent review of the case in contravention of well-settled standards of review. Therefore, I respectfully dissent.

GRAVES and WINTERSHEIMER, JJ., join this dissenting opinion.

      . Officer Sims never reviewed the English study himself, but referred only to a report prepared by an unidentified accident recon-structionist in England which contained the figures from the English study.

      . This is contrary to the trial judge’s denial of Appellant’s RCr 11.42 motion based on her finding that Appellant would have still have been convicted even if the mistaken calculations had been discovered and the jury informed.

      . This is aside from any question of reliability of Officer Sims’ analysis and calculations. Since he’d already given his opinion based upon his mathematics, we would assume he would acknowledge their correct application once shown his errors.

      .Officer Sims’ was innocent in his mistake, but the effect was devastating to the defense.