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    Errick D. DUNCAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2007-SC-000925-MR.
    Supreme Court of Kentucky.
    Sept. 23, 2010.

      Erin Hoffman Yang, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.
    Jack Conway, Attorney General of Kentucky, Susan Roncarti Lenz, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, KY, Counsel for Appellee.
   Opinion of The Court by

Justice ABRAMSON.

Errick Duncan appeals from a Judgment of the Jefferson Circuit Court convicting him of kidnapping, in violation of KRS 509.040; of first-degree sexual abuse, in violation of KRS 510.110; and of two counts of second-degree stalking, in violation of KRS 508.150. In accord with the jury’s status determination and sentence recommendation, Duncan was sentenced as a first-degree persistent felon to concurrent terms of imprisonment totaling thirty years. He appeals to this Court as a matter of right.

Duncan was accused of a series of crimes that occurred in south Louisville in the fall of 2008. The Commonwealth alleged that he kidnapped fourteen-year-old SM, twice sexually abused her, sodomized her, and raped her. The jury found him guilty of kidnapping and of one count of sexual abuse, but could not reach a verdict on the other charges. The Commonwealth also alleged that Duncan stalked two other girls from the same neighborhood, thirteen-year-old JM and fourteen-year-old JH, and that he unlawfully imprisoned and menaced JH. The jury could not reach a verdict on the unlawful imprisonment and the menacing charges, but found Duncan guilty of stalking both girls. Duncan, who testified at trial, denied the charges and argued that he had been wrongly identified as the perpetrator.

On appeal, Duncan contends that his trial was rendered unfair when he was subjected to improper cross-examination and when, during her closing argument, the prosecutor misrepresented evidence concerning DNA test results. He also contends that one of the investigating officers was improperly allowed to bolster the victims’ testimony; that under the kidnapping exemption statute he was entitled to a directed verdict on the kidnapping charge; and that JH’s out-of-court identification of him as her stalker was tainted by a suggestive identification procedure and so should not have been admitted into evidence. We agree with Duncan that the Commonwealth misrepresented its DNA evidence and by so doing deprived Duncan of a fan* trial, but reject his other claims of error.

RELEVANT FACTS

The Commonwealth relied on the three victims for proof that the crimes occurred. Each victim testified about encounters with a man in the neighborhood of Southern Middle School in Louisville in the fall of 2003. JM testified that on Halloween evening, while she was walking to a friend’s house, a van pulled up beside her and the driver asked for directions. He then asked other questions that JM felt were inappropriate, such as her name and whether she had a boyfriend. The same man drove past her later that night as she was trick-or-treating. Soon thereafter she began to see the man parked in front of her house when she left for school in the morning. Finally, one day while she was visiting with two male friends, the same man, this time driving a white Lincoln, drove past them several times. The two boys confronted the man, asked why he was following JM, and wrote down his license number.

JH testified that one day in early November she and a friend were walking home from school when they noticed a man in a white van watching them. When the van approached them and the man began asking questions, the girls became frightened and ran home. A few days later, on November 5, 2003, JH was walking down an alley on her way home, when she again saw the white van. Moments later, a man grabbed her from behind, told her he had a gun, and warned her not to scream. JH testified that she freed herself by hitting the man with her elbow and ran home.

SM testified that on November 22, 2003, she was walking home from a friend’s house when a man grabbed her from behind, pressed something hard against her back, told her he had a gun, and warned her not to scream. The man led her a short way down an alley, and then led her into a secluded area behind an abandoned house. There he ordered her to lower her pants and fondled her vagina. He then had her pull her pants up and led her through several city blocks, over a pedestrian bridge across the freeway, through an opening in a fence, and into a secluded area behind Southern Middle School. As they were walking they were approached by two people, but the man warned SM that he “would hate to have to shoot them.” When they reached the area behind the school, the man put a toboggan over SM’s face and again had her lower her pants. SM testified that he fondled her, orally sodomized her, and twice tried to rape her, although he was not able to penetrate her fully. He then forced SM to kiss him while he masturbated. Finally, he had SM adjust her clothes, removed the toboggan, and told her to leave without looking back. SM told her mother what had happened, and her mother summoned the police.

A principal issue at trial was the identity of the perpetrator. The Commonwealth’s proof against Duncan included photo identifications by all three victims. JH and JM positively picked Duncan’s photo from a photo array as the man who had stalked them, and SM picked out Duncan’s photo, but told the officers that she was not positive. The police traced the license number JM had recorded to Duncan’s white Lincoln. Duncan’s girlfriend in the fall of 2003 testified that she had then owned a white van, which Duncan sometimes borrowed. JM identified both vehicles, and JH identified the van. Duncan’s former girlfriend also authenticated two letters Duncan had sent to her from prison. In one letter he admitted having had sex with an underage girl, but claimed the encounter was consensual, and in the other he asserted that the girls making the other charges were “lying their asses off.” Finally, the Commonwealth presented the results of DNA analyses performed on samples taken from the panties SM wore at the time of her assault. Those analyses indicated the presence of a male’s DNA, and the partial profiles obtained matched, to the extent that they yielded results, the profiles obtained from Duncan.

Duncan presented a denial defense. He claimed to have had no encounters with any of the victims. He established that SM and JH, when first describing the man to the police, had guessed him to be short, in the neighborhood of five feet, eight inches tall, when in fact Duncan is over six feet tall. He elicited testimony from the forensic witnesses to the effect that the DNA analyses did not identify him as the source of the DNA found in SM’s panties, but rather as one of an undetermined number of potential sources. And he testified that the letter to his former girlfriend referred not to SM but to a seventeen-year-old girl he had been seeing at the time and who, he mistakenly believed, was the source of the rape charges. As noted, although the jurors did not accept Duncan’s defense, neither were they all convinced that he had committed the more serious of the crimes charged.

Duncan maintains that his trial was rendered unfair in several ways. His principal complaint concerns instances of what he characterizes as prosecutorial misconduct. He contends that he was cross-examined unfairly when the prosecutor asked him to “explain” the DNA evidence and to characterize the testimony of other witnesses as “lying” or as “wrong.” He also contends that during her closing argument one prosecutor misrepresented the DNA evidence by stating that it established that he was the source of the male DNA recovered from SM’s panties. We begin with these alleged instances of pros-ecutorial misconduct.

ANALYSIS

I. Duncan’s Trial Was Rendered Unfair by Prosecutorial Overreaching.

As Duncan correctly notes, pros-ecutorial misconduct can assume many forms, including improper questioning and improper closing argument. Brown v. Commonwealth, 313 S.W.3d 577 (Ky.2010); State v. Singh, 259 Conn. 693, 793 A.2d 226 (2002). If the misconduct is objected to, we will reverse on that ground if proof of the defendant’s guilt was not such as to render the misconduct harmless, and if the trial court failed to cure the misconduct with a sufficient admonition to the jury. Where there was no objection, we will reverse only where the misconduct was flagrant and was such as to render the trial fundamentally unfair. Barnes v. Commonwealth, 91 S.W.3d 564 (Ky.2002); Partin v. Commonwealth, 918 S.W.2d 219 (Ky.1996).

A. During His Cross-Examination of Duncan, the Prosecutor Misrepresented Key Aspects of the Commonwealth’s Evidence.

Toward the end of his lengthy cross-examination, one prosecutor asked Duncan, ‘Tour story today is that JM was lying. JM has to be lying in order for your story to be true, right?” Defense counsel objected on the ground that JM could have testified honestly but mistakenly. Although the court did not sustain the objection, it did advise the prosecutor to “clear the matter up.” The prosecutor then asked, “For your story to be right, JM has to be wrong. Right?” He then proceeded to ask the same question with respect to SM and JH, with respect to the detectives, and with respect to the DNA evidence, i.e., “The DNA has to be wrong for your story to be true. Isn’t that correct.” When Duncan protested that he did not understand the DNA evidence, the prosecutor held up the exhibit which showed the results of the DNA analysis, had Duncan acknowledge, point by point, the instances where the DNA from SM’s panties was consistent with his DNA, and then asked again: “The DNA has to be wrong for your story to be right. Isn’t that true?” To none of these latter questions did Duncan’s counsel object. Duncan contends on appeal, nevertheless, that these questions were flagrantly improper and rendered his trial unfair. With respect to the DNA questions, we agree.

In Moss v. Commonwealth, 949 S.W.2d 579, 583 (Ky.1997), we reiterated what had long been the rule in this state and what is overwhelmingly the majority rule in other jurisdictions when we emphasized that “[a] witness should not be required to characterize the testimony of another witness ... as lying.” See also Liggett v. People, 135 P.3d 725 (Colo.2006) (collecting cases). Not only do such questions invade the jury’s role as sole determiner of credibility and unfairly require the witness to disparage another witness, but they are usually misleading, for, as in this case, mistake rather than either witness’s dishonesty could account for disparities in their testimonies. The prosecutor’s question to Duncan as to whether his story did not imply that JM was lying was a blatant Moss violation, and Duncan’s objection should have been sustained. That violation alone, however, would not entitle Duncan to relief, for following the objection the prosecutor asked instead whether Duncan’s version of events did not imply that the victims’ versions were wrong rather than dishonest, and that question at least clarified for the jury that Duncan’s defense did not hinge on a conclusion that the victims had fabricated their allegations.

Duncan maintains that he should not have been asked to characterize other witnesses as “wrong” any more than as “lying.” This appears to be a question we have not addressed before. Other courts have distinguished the two types of questions: “Asking a witness whether a previous witness who gave conflicting testimony is ‘mistaken’ highlights the objective conflict without requiring the witness to condemn the prior witness as a purveyor of deliberate falsehood, i.e., a ‘liar.’ ” United States v. Gaind, 31 F.3d 73, 77 (2nd Cir.1994). In denying plain error relief in a case, like this one, in which during cross-examination the defendant was asked if several witnesses were mistaken about particular details of their testimony, details that conflicted with the defendant’s version of events, the United States Court of Appeals for the First Circuit cited the Second Circuit’s distinction between “mistake” and “lie,” and held that “[wjhether this avoidance [of the “L” word] would suffice in all situations, we need not decide now. As [the defendant] did not object in the district court to these questions ... our review is limited to plain error. Clearly that standard was not transgressed.” United States v. Gaines, 170 F.3d 72, 82 (1st Cir.1999). Likewise here, Duncan did not preserve this issue by proper objection at trial. We are limited, therefore, as noted above, to asking whether the prosecutor engaged in flagrant misconduct and if so whether it rendered Duncan’s trial fundamentally unfair. Since Duncan’s defense was precisely that the three victims had mistakenly identified him, it assuredly did not amount to flagrant misconduct for the prosecutor to ask him if they had to be mistaken for his version of events to be true.

The prosecutor’s asking whether the detectives had to be mistaken is more troubling, because the prosecutor did not specify what in particular about their testimonies conflicted with Duncan’s version in such a way that either they were mistaken or Duncan’s version could not be right. We need not decide whether that failure made the question improper, however, for even if it did the question did not render Duncan’s trial fundamentally unfair.

The prosecutor’s DNA question, however — “The DNA has to be wrong for your story to be right. Isn’t that true?” — was altogether more egregious. To understand why, it is necessary to consider in some detail the Commonwealth’s DNA evidence. That evidence was introduced through the testimonies of two lab supervisors employed by Orchid Cellmark, a company specializing in DNA analysis. One of those witnesses, William Watson, the supervisor of Orchid Cellmark’s Nashville facility, testified that among other items to be analyzed, the Commonwealth sent to it cuttings from SM’s panties, a blood sample from SM, and a blood sample from Duncan. According to Watson, the lab performed what has become the standard PCR/STR analysis of these samples.

As background, we note some basic principles pertaining to DNA analysis from the COMMITTEE ON DNA FORENSIC SCIENCE: AN UPDATE, NATIONAL RESEARCH COUNCIL, THE EVALUATION OF FORENSIC DNA EVIDENCE (1996) (“NRC Update”) discussed extensively in State v. Bander, 150 Wash.App. 690, 208 P.3d 1242 (2009). Nuclear DNA is a long, spiral molecule found in every human cell except red blood cells. NRC Update. Most of this long molecule is identical from person to person, but along its length are segments where variations occur. Id. These varying segments are referred to as polymorphic sites, and the possible variants, generally only a few for each polymorphic site are referred to as alleles. Id. In all but sex cells, a person has two alleles at each site, one inherited from each parent. Id. When several sites are tested and the alleles determined, the pattern of alleles is referred to as a profile. Id. Several tests targeting different polymorphic sites have been marketed, but in 1994 Congress established a set of thirteen such sites as a national standard for use in the Combined DNA Identification System (CODIS). Roberts v. United States, 916 A.2d 922 (D.C.2007). Watson did not testify that those were the thirteen sites his lab tested, but it appears from his report filed with the Commonwealth’s discovery that they were.

In any event, PCR/STR testing refers to a test targeting a particular kind of polymorphic site, sites at which the alleles are short pieces of DNA repeated some number of times (Short Tandem Repeats or STR). Roberts, supra. The alleles are distinguished by the number of repeats. Id. PCR, short for Polymerase Chain Reaction, refers to a testing process in which the DNA from a sample is isolated; the polymorphic sites to be analyzed are chemically marked and copied millions of times; and then, from that amplified genetic material, the alleles present at each site are identified. Bander, supra. By virtue of its “amplifying” capacity, PCR has made possible the analysis of very small DNA samples, but even with PCR it sometimes happens that an analysis will fail to identify some or any of the alleles at a particular site. Id. When some sites yield full results and some do not, the incomplete pattern of alleles is sometimes referred to as a partial profile. Commonwealth v. Linton, 456 Mass. 534, 924 N.E.2d 722 (2010).

It also happens, frequently in the course of forensic DNA analyses, that a sample will prove to contain a mixture of DNA from more than one person. A mixture is apparent when the analysis discloses more than two alleles at any given site. Bander, supra. Two samples, a known sample, say, such as Duncan’s in this case, and an unknown sample such as that recovered from SM’s panties, are said to match if the profiles they yield are identical, ie., if the alleles present at each site in both samples are the same. Id. If an unknown sample yields only a partial profile, but that partial profile is identical, as far as it goes, with a known sample, the two are sometimes said to partially match. Id. If the unknown sample is a mixture, with more than two alleles per site, the known sample is said to match or the source of that sample to be a possible contributor to the mixture if the known sample’s alleles are among those present at each site in the mixture. Id. If the unknown sample is a mixture and yields only a partial profile, the known sample is said to partially match it, or again to come from a possible contributor to the mixture, if the known sample’s alleles are present at each complete site of the unknown sample and are either present or potentially present at each site for which there are incomplete results. Id.

The significance of a match or a partial match depends upon how rare or how common the profile or partial profile is. Population geneticists have amassed data bases for the commonly tested polymorphic sites, such as those in the CODIS standard, which enable them to estimate the frequency with which the various alleles occur in the general United States population and in certain subsets of the population. Roberts, supra. Those estimates then allow the calculation of the frequency with which a given profile occurs. Id. That frequency is often expressed as the “random match probability” or the odds that an unrelated person chosen at random from the reference population would have the given profile. Id. For large profiles, such as those based on the twenty-six alleles of the thirteen CODIS sites, the random match probability is frequently vanishingly small, one chance in billions or trillions or quadrillions. In such cases a very strong inference arises that the matching known and unknown samples came from the same source. Young v. State, 388 Md. 99, 879 A.2d 44 (2005). For smaller profiles, however, those based on partial matches, say, at only a few sites, the odds of a random match can be much higher and the inference that the source of the known sample was also the source of the unknown sample much weaker. Commonwealth v. Mattel, 455 Mass. 840, 920 N.E.2d 845 (2010).

In this case, for example, Watson testified that the sample recovered from SM’s panties yielded a mixture of DNA from at least three persons, two of whom were males. Although he did not specify the results of the analysis for each site tested, he indicated that the results were partial, with several sites yielding incomplete results. SM and Duncan were both possible contributors to the mixture, he testified, but the odds of choosing a possible contributor at random from the reference population (Watson did not state whether he was referring to the general population or to a subset) were better than one in three. Because these results did not have much inferential force, Watson recommended to the Commonwealth that it have the sample recovered from SM’s panties and the sample obtained from Duncan retested at Orchid Cellmark’s Dallas facility, where a different test, a so called Y-STR test, could be performed.

The director of Orchid Cellmark’s Dallas facility, Cassie Johnson, testified that the Commonwealth agreed to the further testing and submitted samples from SM’s panties, from Duncan, and from SM’s stepfather. Johnson explained that she tested the samples twice, the first time in 2004 and then again in 2005 after a new, expanded version of the test came out. Like the test Watson’s lab performed, the tests Johnson oversaw employed PCR to amplify certain STR polymorphic sites, and then sought to identify the alleles present at those sites. The difference was that the sites Johnson’s lab targeted are located on the Y-chromosome, a portion of the DNA molecule that occurs only in men and that is passed on intact from father to son. Bander, supra. This male-only test would screen out any female contribution to the mixture present on the panties, and thereby, it was hoped, would provide more resolution for the analysis of the male contribution. Johnson testified that because the Y-chromosome comes only from the father, only one allele occurs at each site, and the pattern of alleles is the same for father and son and hence for any man in the same paternal lineage. As a result, Johnson testified, Y-STR testing cannot identify a particular individual, and a match between samples indicates that not only the source of the known sample, but others in his lineage, were possible sources of the unknown sample.

The first test Johnson’s lab performed targeted ten sites and from the sample isolated from the panties yielded results for seven of them. At all seven of those sites, Duncan’s alleles occurred. In 2005, Johnson’s lab analyzed the samples again, this time with a new version of the test that targeted seventeen Y-chromosome sites. For the sample recovered from SM’s panties, the test yielded results at ten of the seventeen. At two of those sites two alleles were detected, indicating that the sample contained a mixture of DNA from two men. At all ten of the sites where results were obtained, Duncan’s alleles occurred. At the two sites where an additional allele was detected, that allele matched the step-father’s corresponding allele. At four other of the ten result-yielding sites Duncan’s and the step-father’s alleles were the same. Johnson concluded that Duncan and the step-father were both potential contributors to the mixture, and neither Duncan nor any male in his paternal lineage could be excluded as a source of the DNA recovered from SM’s panties. Johnson was not asked for and did not offer any testimony regarding the statistical significance of her results. The jury was told that Duncan could not be ruled out, but it was not told that anyone else could be either.

Given this complete lack of evidence regarding the significance of Duncan’s partial match, it was a gross misrepresentation of Johnson’s testimony for the prosecutor to suggest that the “DNA has to be wrong” for Duncan’s version of events to be right. The DNA evidence was consistent with a scenario in which Duncan was the perpetrator. Given Johnson’s very limited testimony, however, (the failure to establish through statistics or otherwise the significance of the finding) it was also consistent with a scenario in which any other man on the planet was the perpetrator, and thus did not need to be wrong for Duncan’s testimony to be right. The prosecutor compounded the impropriety by having Duncan acknowledge, one by one, all ten sites at which his profile matched the partial profile obtained from the panty sample. The significance of those matches is precisely what the expert failed to establish, and by suggesting that those matches were either “wrong” or conflicted with Duncan’s testimony the prosecutor invited the jury to be its own expert — to make inferences that it was not qualified to make and which amounted to pure speculation. This was a flagrant abuse of cross-examination that, given the aura of conclusiveness that surrounds DNA evidence, rendered Duncan’s trial manifestly unfair.

B. During Closing Argument, the Prosecutor Again Misrepresented the Import of the Commonwealth’s DNA Evidence.

This conclusion is underscored by portions of the prosecutor’s closing argument to which Duncan objected. Twice during that portion of her argument based on Johnson’s testimony, the prosecutor went from quoting Johnson’s conclusion that Duncan could not be excluded as a source of the DNA in SM’s panties, to insisting that “not excluded” means “included,” to “the bottom line: What is Errick Duncan’s DNA doing in SM’s panties?” Counsel objected both times the prosecutor reached this “bottom line” assertion, and following the second objection the court admonished the jury to the effect that while the evidence had not established “a direct, absolute match,” both sides were allowed to argue reasonable inferences from the evidence. Duncan maintains that the prosecutor’s argument went beyond “reasonable inference” and had the effect, like that of the improper cross-examination, of misrepresenting Johnson’s testimony. For the reasons discussed above, we agree.

The problem is not that the evidence failed to establish a match between Duncan’s profile and the profile obtained from the sample. The evidence established a match, or a partial match, at ten of the seventeen tested sites. But missing from the Commonwealth’s proof was any testimony establishing the significance of that partial match. Johnson’s testimony that Duncan could not be excluded as a source of the panty DNA said nothing at all about how likely or unlikely it was for such a partial match to occur, and most assuredly it did not say that Duncan was the source. By asking the jury to infer on the basis of Johnson’s testimony that he was, the prosecutor sought to wring from that testimony a conclusion it could not reasonably yield.

This concern was reflected in the 1992 report of the National Research Council’s Committee on DNA Forensic Science. That report, titled DNA Technology in Forensic Science, emphasized that “[t]o say that two patterns match, without providing any scientifically valid estimate (or, at least, an upper bound) of the frequency with which such matches might occur by chance, is meaningless.” Id. at 301. It is “meaningless,” or, at most, of marginal value, for precisely the reason noted above: although the evidence of a partial match established that Duncan could not be excluded as a potential source of the panty DNA, without further evidence putting the match in some context of significance, statistical or otherwise, it does not establish that anyone can be excluded and so merely includes Duncan among the rest of the world as a potential source. For this reason, several courts have held that DNA “match” or “non-exclusion” evidence is inadmissible without reliable accompanying evidence as to the likelihood that the test could or could not exclude other individuals in a given population. Without the accompanying evidence, these courts note “the jury have no way to evaluate the meaning of the result.” Commonwealth v. Mattei, 920 N.E.2d at 856 (collecting cases).

In Sholler v. Commonwealth, 969 S.W.2d 706 (Ky.1998), this Court rejected that per se exclusionary approach and held that bald DNA “match” or “non-exclusion” evidence was admissible as circumstantial evidence akin to blood type evidence:

We view [the expert’s non-exclusion DNA] testimony as similar to that of an expert who testifies that a defendant’s blood type is the same as that of a blood sample found at a crime scene.... Such does not mean that the crime scene blood was the defendant’s blood, but only that the defendant is not excluded as the source of the crime scene blood.

Id. at 710. We adhere, with some reluctance, to that holding today, but emphasize the following qualifications.

Matching blood types provide weak circumstantial evidence that the defendant was the source of the crime scene blood. The rarer the blood type the slightly better the evidence, but no blood-type evidence standing alone would serve to identify the defendant beyond a reasonable doubt as the source of the crime scene blood. The potential probative value of DNA evidence is vastly more powerful. Although theoretically a DNA match over a large number of polymorphic sites, such as the thirteen sites of the CODIS standard, does not conclusively identify a defendant as the source of crime scene DNA, when the odds of a random match begin to vanish in the mists of the unimaginably small, as they often do in such cases, for all practical purposes the defendant is identified, and that evidence, standing alone, would support such a finding. In such cases, the Maryland Court of Appeals has held, the expert need not couch his or her testimony in the theoretical language of mathematics, but may testify directly that the match proves, to a reasonable scientific certainty, that the defendant is the source of the crime scene DNA. Young v. State, supra.

In conjunction with this vast probative potential, DNA evidence is also subject to vast misunderstanding and misuse. Although at times highly probative, it can also, as this case illustrates, be much more modestly probative or hardly probative at all. Where its significance falls along that spectrum is a matter dependent upon expert testimony, since lay jurors are not qualified to make the assessment on their own. Statistical evidence, if possible, is the best way to convey the strength of DNA evidence, but statistics may not always be available, and where it is not the expert may use other valid means to give some idea of the extent to which the DNA evidence narrows the field of possible sources. Whatever avenue is chosen, the Commonwealth must abide by the limitations of its own proof and not make claims that its DNA evidence is more probative than the expert’s testimony has shown it to be. In particular, if, as in this case, the Commonwealth relies on mere evidence of a partial match and “non-exclusion” without any other evidence of the match’s significance, it may not, as it did here, ask whether the DNA evidence is “wrong” because it contravenes the defendant’s version of events. Similarly, the Commonwealth may not, by underscoring the fact of the partial match, invite the jury to speculate that the match is actually more significant than the expert testified, or that evidence of the partial match by itself is sufficient to identify the defendant as the source of the crime scene DNA. These are not reasonable inferences from bare “non-exclusion” evidence and so are not fair game either for cross-examination or for closing argument. Because the Commonwealth failed to present any evidence of the significance of Duncan’s partial DNA match other than the expert’s “non-exclusion” testimony, its suggestion during Duncan’s cross-examination and during closing argument that the DNA evidence pin-pointed Duncan was highly improper and, given the immense weight jurors are apt to accord DNA evidence, rendered Duncan’s trial manifestly unfair. We are obliged, accordingly, to reverse Duncan’s conviction and to remand for additional proceedings. Because Duncan’s other claims of error raise issues that could recur at a retrial, we shall briefly consider them as well.

II. Duncan Was Not Exempt From the Charge that He Kidnapped SM.

In pertinent part, KRS 509.040 provides that “[a] person is guilty of kidnapping when he unlawfully restrains another person and when his intent is: ... (b) To accomplish or to advance the commission of a felony.” Many felonies, however, either inherently or as a matter of common occurrence, involve the restraint of the victim in some manner. Forcible rape, sodomy, and sexual abuse, for example, the offenses Duncan was accused of committing against SM, all involve restraining the victim in conjunction with and so as to accomplish the unlawful sexual contact. To distinguish kidnapping from the restraint that is part-and-pareel of another offense, KRS 509.050, the kidnapping exemption statute, provides in pertinent part that

[a] person may not be convicted of ... kidnapping when his criminal purpose is the commission of an offense defined outside this chapter [KRS 509] and his interference with the victim’s liberty occurs immediately with and incidental to the commission of that offense, unless the interference exceeds that which is ordinarily incident to the commission of the offense which is the objective of his criminal purpose.

We have construed this statute narrowly and have held that for the exemption to apply the restraint will have to have been “close in distance and brief in time ... If the victim is restrained and transported any substantial distance to or from the place at which the crime is committed or to be committed, the offender will be guilty of an unlawful imprisonment offense as well.” Timmons v. Commonwealth, 555 S.W.2d 234, 241 (Ky.1977). We have required, moreover, that one seeking to invoke the exemption strictly satisfy all three of the statutory requirements: (1) that the underlying criminal purpose was the commission of a crime defined outside KRS Chapter 509; (2) that the interference with the victim’s liberty occurred immediately with or incidental to the commission of the underlying intended crime; and (3) that the interference with the victim’s liberty did not exceed that which is ordinarily incident to the commission of the underlying crime. Hatfield v. Commonwealth, 250 S.W.3d 590 (Ky.2008). The trial court, rather than the jury, determines whether the exemption applies, Arnold v. Commonwealth, 192 S.W.3d 420 (Ky.2006) (citing Calloway v. Commonwealth, 550 S.W.2d 501 (Ky.1977)), and we review that determination under the abuse of discretion standard. Id.

Duncan contends that his restraint of SM is indistinguishable from the alleged sexual offenses because she was restrained for no reason other than the commission of those offenses and because the restraint was no longer than necessary to carry out the sexual assault. This last contention is absolutely meritless. Even granting that Duncan’s purpose was the commission of an offense defined outside KRS Chapter 509, and that he thus satisfied the first statutory requirement, his restraint of SM clearly exceeded what could be deemed merely incidental to the sex offenses.

According to SM, Duncan first forced her from the street, where she was walking, down an alley and then into a secluded area behind an abandoned house where he sexually abused her. In Mitchell v. Commonwealth, 908 S.W.2d 100 (Ky.1995), a woman was carried by two attackers from the street into a backyard, where the attackers raped her. We held that the trial court properly refused to apply the exemption statute to the restraint involved in moving her from the street to the backyard. It is arguable, therefore, that Duncan’s forcible removal of SM from the street to the area behind the abandoned house was not an exempt restraint. But see Hatfield, supra (removal of murder victim from church parking lot to secluded area behind the church deemed merely incidental to the murder and so exempt). Regardless, the additional restraint Duncan imposed when he forced SM to walk for five to ten minutes through several blocks to the area behind the school was neither brief in time nor short in distance, for the purposes of the exemption statute, and exceeded what was merely incidental to the alleged sexual offenses. The trial court did not abuse its discretion by ruling that the exemption statute did not apply.

III. JH’s Pre-trial Identification of Duncan Was Not Tainted by an Unduly Suggestive Procedure.

Duncan next contends that JH’s pretrial identification of him was tainted by a suggestive identification procedure and that under the Due Process Clause of the United States Constitution evidence of her identification should therefore have been suppressed. The admissibility of identification evidence for due-process purposes is governed by a two-part test. First, the court determines if the identification procedures were “impermissibly suggestive.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). If they were not, then the admission of evidence based thereon does not violate the Due Process Clause, and the inquiry is at an end. If the procedures were unduly suggestive, then the court moves to the second step of the test and determines whether, in light of the totality of the circumstances, the suggestive procedures created “a very substantial likelihood of irreparable misidenti-fieation.” Simmons, 390 U.S. at 384, 88 S.Ct. 967. See also Neil v. Diggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) (outlining factors to be considered in totality of circumstance analysis); Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) (affirming the totality-of-the-circumstances approach and permitting admission of the evidence unless the circumstances make it likely that the evidence is not reliable). We review the trial court’s underlying factual findings for clear error and its ruling on the admissibility of the identification evidence under the abuse of discretion standard. King v. Commonwealth, 142 S.W.3d 645 (Ky.2004).

Here, JH testified that on November 1, 2003, when she was fourteen-years old, a man driving a white van pulled up along side her and the friend with whom she was walking and asked them their names. Frightened, the two girls ran home. A few days later, on November 5, 2003, as she was walking home through an alley by herself, a man grabbed her from behind, told her he had a gun, and warned her not to scream. JH freed herself by hitting the man with her elbow and ran home, but as she was wrenching herself free, she faced the man and caught a clear, albeit brief, look at him. She testified that about a month later police officers twice showed her an array of six photographs of men matching the description she had given of her attacker. The first time she tentatively picked out two men, one of whom was Duncan, as resembling the man who grabbed her. She remembered her attacker as wearing glasses but none of the men in the photo array wore glasses. A few days later the police presented her with a second array of six photographs, this one with a more recent photograph of Duncan, one in which he and the other men included in the array are wearing glasses. From that array, JH positively identified Duncan as her assailant.

Duncan sought to suppress JH’s identification and argued that showing JH his photo the second time was unduly suggestive. The trial court, disagreed. It ruled that the identification procedures were not unduly suggestive, and so admitted JH’s identification evidence without going to the second step of the test and considering whether there was a “substantial likelihood” that JH had misidentified Duncan. On appeal, Duncan renews his objection to the second photo array as unduly suggestive.

An identification procedure is suggestive when it tends to focus attention on a single individual. United States v. Montgomery, 150 F.3d 983 (9th Cir.1998); St. Clair v. Commonwealth, 140 S.W.3d 510 (Ky.2004) (showing witness mug shots of two suspects and no other photos imper-missibly suggestive); Moore v. Commonwealth, 569 S.W.2d 150, 153 (Ky.1978) (“The display ... of a single mug shot ... unaccompanied by any other pictures, was unnecessarily suggestive.”). Repeatedly showing the picture of an individual can also have such a focusing effect. Simmons, 390 U.S. at 383, 88 S.Ct. 967. Duncan insists that the appearance of his photo in both arrays rendered the second array impermissibly suggestive because by virtue of the repetition his second photo was “emphasized.” This precise question has not previously been before us, but federal courts addressing the issue have held that while “the fact that a defendant’s photo is the only one which occurs in several photo arrays shown to the same witness could be unduly suggestive,” it is not necessarily so. Stewart v. Duckworth, 93 F.3d 262, 265 (7th Cir.1996) (citing United States v. Bagley, 772 F.2d 482 (9th Cir.1985)). In holding that this scenario was not unduly suggestive in the case before it, the Stewart Court noted that eleven days separated the presentation of the two arrays and that the two photos of the defendant were taken four years apart and looked very different. In one the defendant looked thin and wore long hair, while in the other he was heavier and had short hair.

Here, three days separated JH’s viewing of the two arrays, not as long a period as in Stewart, but a substantial gap nonetheless. The two photos of Duncan, moreover, are markedly different. They were taken more than three years apart, and in the earlier one Duncan appears noticeably younger, is not wearing glasses, and has a full goatee. In the more recent one, Duncan’s face is fuller, he is wearing glasses, and he has a mustache but no beard. Given the significant differences between the two photos, we are convinced that JH was not shown what amounted to a mere repetition of the first photo, and that fact plus the amount of time between the two viewings convince us that the photo identification process was not unduly suggestive. The trial court did not abuse its discretion by so ruling.

IV. The Trial Court Did Not Err by Allowing a Police Detective to Express a Modest, Experience-Based Opinion.

During his cross-examination of the lead detective in the case, Detective Mark Fulmore, Duncan elicited testimony to the effect that SM and JH both described their attacker as not very tall, as perhaps around five-foot-eight inches tall, whereas Duncan is six-foot-one. On redirect examination, the Commonwealth asked Detective Fulmore if in his experience it was unusual for witnesses to describe a suspect’s height inaccurately. Duncan objected on the ground that the detective was not an expert in eye-witness identifications and so was not qualified to render an opinion. Overruling the objection, the trial court ruled that if a proper foundation were laid the officer could testify about his experience. Asked about his experience, the detective stated that he had been interviewing witnesses for twenty-one years and that it was common for a witness to be mistaken about a suspect’s height. Duncan contends that the trial court abused its discretion under KRE 702 by admitting what amounted to an unreliable expert opinion. We disagree.

Under KRE 702, an expert may testify concerning “scientific, technical, or other specialized knowledge” if such testimony “will assist the trier of fact to understand the evidence or to determine a fact in issue.” A witness may be qualified by “knowledge, skill, experience, training, or education,” to give such testimony, and we have held that where the knowledge required is neither extensive nor complex, an officer’s opinion may be admissible on the basis of training and experience. Dixon v. Commomoealth, 149 S.W.3d 426 (Ky.2004) (narcotics investigator allowed to opine that notations on slip of paper referred to drug transactions). Here, Detective Ful-more did not purport to be an expert in eye-witness psychology nor did he claim that certain types of witnesses or witnesses in certain situations were more or less apt than others to estimate a suspect’s height inaccurately. In essence, he testified only that his experience confirmed the common sense notion that people are generally poor judges of height. As such the problem with his testimony, if there was one, was not that it was unreliable, but that it was not calculated to “assist the trier of fact.” As the United States Court of Appeals for the First Circuit has explained, “[ejxpert testimony on a subject that is well within the bounds of a jury’s ordinary experience generally has little probative value. On the other hand, the risk of unfair prejudice is real. By appearing to put the expert’s stamp of approval on the government’s theory, such testimony might unduly influence the jury’s own assessment of the inference that is being urged.” United States v. Montas, 41 F.3d 775, 784 (1st Cir.1994). Whether Detective Fulmore’s opinion could have been elicited during his direct examination, is a question that is not before us.

In fact, his opinion was elicited only in response to Duncan’s questions meant to discredit the victims’ identifications. Generally, “when a witness has been impeached, the party introducing him may introduce evidence to corroborate his testimony or support his credibility.” Samples v. Commonwealth, 983 S.W.2d 151, 154 (Ky.1998) (citation and internal quotation marks omitted). Accordingly, as the Montas Court noted, “[e]xpert testimony may be used ‘on some occasions to explain even non-esoteric matters, when the defense seeks to discredit the government’s version of events as improbable.’ ” 41 F.3d at 784 (quoting from United States v. Taylor, 18 F.3d 55, 59 (2nd Cir.1994)). The trial court here did not abuse its discretion under KRE 702 by allowing Detective Fulmore to testify on redirect examination that in his extensive experience witnesses commonly misgauge a suspect’s height.

CONCLUSION

In sum, having failed to establish the significance of its DNA evidence beyond the expert’s testimony that it did not exclude Duncan as a possible source of the DNA recovered from SM’s panties, the Commonwealth grossly misrepresented that evidence when, during its cross-examination of Duncan and during its closing argument, it asserted that that evidence identified Duncan as the source and had to be “wrong” if Duncan’s testimony was to be believed. Given the immensely persuasive effect DNA evidence tends to have, the Commonwealth’s misuse of it rendered Duncan’s trial manifestly unfair and necessitates that his conviction be reversed. Duncan’s other claims of error are not well-taken. At a retrial, Duncan is not exempt from the charge that he kidnapped SM, JH’s pretrial identification of him is not subject to suppression on the ground that it resulted from an unduly suggestive procedure, and should Duncan attack the victims’ identifications of him by eliciting that they initially described their attacker as a much shorter person, the Commonwealth’s investigator can counter that in his experience witnesses commonly misjudge a suspect’s height. Accordingly, we reverse the Judgment of the Jefferson Circuit Court and remand for additional proceedings.

All sitting. All concur.

      . In fact, the analyses indicated the presence of DNA from two men. SM testified that on the day of her assault she was wearing clean panties taken from a laundry basket but that her mother had worn them before they were laundered. The analyses yielded partial profiles consistent with both Duncan and SM's step-father. SM testified that she had a good relationship with her step-father, and the officers testified that nothing in the investigation even remotely suggested any wrongdoing by him.

      . The Commonwealth was represented by two Assistant Commonwealth's Attorneys. One cross examined Duncan, and the other presented the Commonwealth’s closing argument.

      . As discussed above, when objected to prose-cutorial misconduct is reversible if it was not cured by an adequate admonition and if it cannot be deemed harmless in light of the totality of the proof. Because we have already determined that Duncan's improper cross-examination requires that he be retried, we need not decide whether, under this standard, the prosecutor’s closing argument by itself would also require reversal. There is no doubt, however, that the prosecutor grossly overstated the weight of Johnson's testimony and this in conjunction with the improper cross-examination rendered Duncan’s trial unfair.

      . For example, Cassie Johnson, the DNA witness in this case also testified in Commonwealth v. Linton, supra. As the Supreme Court of Massachusetts noted, she testified that statistical calculations available with standard DNA testing were not yet available for the Y-STR testing but she testified that the DNA at issue in Linton (which matched the defendant's sample at 13 points) was not duplicated in any of the other 3,561 male profiles than on record at Orchid Cellmark. 924 N.E.2d at 743-44. Arguably, similar testimony could have been presented in this case.


source: Caselaw Access Project

author: Justice ABRAMSON.

license: Public Domain

text:
    NORTH FORK COLLIERIES, LLC, Appellant, v. Barry Kevin HALL; Leetha Hall; Traveler Coal, LLC; and Community Trust Bank, Appellees.
    No. 2010-SC-000269-I.
    Supreme Court of Kentucky.
    Sept. 23, 2010.

      Anne Adams Chesnut, Bruce Edward Cryder, Greenebaum, Doll & McDonald, PLLC, Lexington, KY, Counsel for Appellant.
    Chauncey S. R. Curtz, Mindy Barfield, Dinsmore & Shohl, LLP, Lexington, KY, Marrs A. May, Pikeville, KY, Counsel for Appellees, Barry Kevin Hall; Leetha Hall; and Traveler Coal, LLC.
    Catherine Marie Stevens, Patricia Kirk-wood Burgess, Frost Brown & Todd, LLC, Lexington, KY, Counsel for Appellee, Community Trust Bank.
   Opinion of the Court by

Justice ABRAMSON.

North Fork Collieries LLC, a Delaware corporation with its principal place of business in Hazard, Kentucky, moves pursuant to CR 65.09 for relief from an Order of the Pike Circuit Court denying North Fork’s motion to stay litigation brought against it and to compel arbitration. By Order entered April 12, 2010, the Court of Appeals denied relief on the ground that the trial court’s ruling did not amount to an abuse of discretion and that North Fork had failed to show that an erroneous ruling would subject it to irreparable injury. For the reasons stated herein, we reverse and remand.

RELEVANT FACTS

The underlying controversy concerns a February 2008 transaction between North Fork and the plaintiffs below, Barry Hall and Traveler Coal, LLC, a Kentucky corporation headquartered in Pikeville. Organized in 2001, Traveler is a coal-mining business and Barry Hall was its initial sole owner and manager. In November 2006, Traveler and Hall obtained a $6.3 million business loan from Community Trust Bank, Inc., of Pikeville. The loan was secured by various mortgages and other liens as well as by the personal guarantees of Hall and his wife, Leetha. In 2007, representatives of Prospect Capital Corporation, described by the parties as a New York-based private equity firm, approached Hall with an offer to buy his business and employ him as its manager. Following negotiations, the parties agreed that Hall would sell his business and its assets to Prospect’s affiliate, North Fork, in exchange for North Fork’s assumption of certain business debts, including the outstanding debt to Community Trust Bank, and North Fork’s agreement to employ Hall as its manager.

The parties’ agreements were memorialized in two writings: an “Employment Agreement” and an “Asset Purchase Agreement.” To obtain Community Trust Bank’s approval of the transfer of its collateral, North Fork, Hall, and Traveler also entered into an agreement with the Bank, the “Assumption Agreement,” whereby Hall and Traveler agreed that they would continue to be bound under the original loan as guarantor and primary obligor, respectively, and North Fork agreed that the loan was to be amended so as to add it as an additional primary obli-gor. Under the Assumption Agreement, North Fork and Traveler both promised the Bank, “absolutely, fully, irrevocably, personally, [and] unconditionally,” to “jointly and severally assume [or remain] and be bound as ... joint and several primary obligor along with [the other].” Notably, all three agreements were executed on February 11, 2008.

In August 2009, North Fork notified Community Trust Bank of its intent to default on the loan, and later that month, as soon as the default became official, Hall, his wife, and Traveler (collectively “Hall”) brought suit in Pike Circuit Court against North Fork and the Bank alleging breaches by North Fork of the Assumption Agreement and the Employment Agreement and seeking damages and declaratory relief. Citing choice of forum and arbitration provisions in both the Employment Agreement and Asset Purchase Agreement, North Fork thereupon moved to have the Complaint dismissed or stayed pending arbitration. The trial court denied those motions by Order entered October 13, 2009.

Pursuant to CR 65.07, North Fork then sought interlocutory review by the Court of Appeals. While the matter was pending before that Court, Hall filed notice of his intent to dismiss without prejudice his employment-related claims. The Employment Agreement was in that way taken out of play, and thus, according to Hall, the central issue remaining before the trial court is “who — as between North Fork and the Respondents [Hall]. — is responsible for paying the CTB debt,” an issue Hall has carefully couched in terms of the Assumption Agreement, which does not have an arbitration clause, rather than the Asset Purchase Agreement, which does. The Court of Appeals ruled that the trial court did not abuse its discretion by allowing Hall to go forward in circuit court on the purported Assumption Agreement claim because that agreement “arguably superseded the documents which did contain arbitration clauses.” North Fork Collieries, LLC v. Hall, 2009-CA-002038-I (April 12, 2010). Thus, according to the Court of Appeals, North Fork will not be irreparably injured by having to litigate Hall’s claim. We disagree. Because the Assumption Agreement cannot reasonably be thought to have superseded the detailed agreements made contemporaneously with it, and because it cannot settle the issue which Hall has raised in the Complaint, the trial court abused its discretion by relying on that agreement to deny North Fork’s demand for arbitration.

ANALYSIS

As the parties correctly note, under CR 65.09 this Court may grant interlocutory relief from an order of the Court of Appeals if the movant demonstrates “extraordinary cause,” and we have held that “ ‘abuses of discretion by the courts below can supply such cause.’ ” Board of Regents of Western Kentucky University v. Clark, 276 S.W.3d 819, 822 (Ky.2009) (quoting from NCAA v. Lasege, 53 S.W.3d 77, 84 (Ky.2001)). In the arbitration context, we have recognized CR 65.07 and CR 65.09 as appropriate avenues for the review of trial court orders denying motions to compel arbitration, particularly when, as here, the KRS 417.220 right to an interlocutory appeal does not apply. Kindred Hospitals v. Lutrell, 190 S.W.3d 916 (Ky.2006).

Although motions to compel arbitration are in some ways akin to motions for injunctions under CR 65.04, they are significantly different as well. Whereas a typical request for a temporary injunction seeks to preserve the status quo pending a decision on the merits of some controversy, and thus raises questions about the movant’s likely success on the merits and the risk of irreparable harm should the injunction be denied, Maupin v. Stansbury, 575 S.W.2d 695 (Ky.App.1978), a motion to compel arbitration seeks rather the specific performance of the asserted contractual right, Vaden v. Discover Bank, - U.S. -, 129 S.Ct. 1262, 173 L.Ed.2d 206 (2009), a right in many instances implicating either Kentucky’s Uniform Arbitration Act, Kentucky Revised Statute (KRS) Chapter 417 (the “KUAA”), or, as here, the Federal Arbitration Act, 9 U.S.C. § 1 et seq. Both the KUAA and the Federal Arbitration Act require that arbitration agreements be enforced no less rigorously than other contract provisions. The task of the trial court confronted with such a motion, thus, is not to weigh the equities of the situation, to assess the merits of the underlying controversy, or to determine whether litigation would or would not “irreparably harm” the movant. Its task generally is simply to decide under ordinary contract law whether the asserted arbitration agreement actually exists between the parties and, if so, whether it applies to the claim raised in the complaint. Id.; First Options of Chicago v. Kaplan, 514 U.S. 938, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995); Oakwood Mobile Homes, Inc. v. Sprawls, 82 S.W.3d 193 (Ky.2002). If an arbitration agreement is applicable, the motion to compel arbitration should be granted.

Although injunctive relief is said to be within the sound discretion of the trial court, in this context that discretion extends no further than the correct application of the law, and accordingly we have held that the improper denial of a motion to compel arbitration warrants relief under CR 65.09. Kodak Mining Company v. Carrs Fork Corporation, 669 S.W.2d 917 (Ky.1984). The trial court’s factual findings, if any, are reviewed for clear error, but its construction of the contract, a purely legal determination, is reviewed de novo. American General Home Equity, Inc. v. Kestel, 253 S.W.3d 543 (Ky.2008).

It is true, as Hall and the Court of Appeals note, that under CR 65.04, temporary injunctive relief is only appropriate if without it the movant will suffer irreparable injury or the final judgment will be rendered ineffectual. Relying on writ cases, in which we have held that the ordinary costs and delays of litigation are not the sort of injury that will justify the extraordinary remedies of mandamus or prohibition, the Court of Appeals opined that North Fork would not be irreparably injured by having to litigate Hall’s claim.

The writ cases have no application in this context, however, where North Fork’s claim to interlocutory relief is not based on the merely equitable assertion that the ordinary course of litigation and appeal will prove costly, but rather on its bargained-for contractual right to proceed in another forum. That right, if it exists, would be destroyed by requiring North Fork to proceed in the Pike Circuit Court and could not be vindicated by an ordinary appeal at the conclusion of the trial. Bridgestone/Firestone d/b/a Firestone Industnal Products Company v. McQueen, 3 S.W.3d 366 (Ky.App.1999). We have indicated, therefore, that in this context irreparable injury arises from an improper denial of a motion to compel arbitration and that the principal question on review is simply whether the trial court correctly decided the contract issue. Kodak Mining, supra. Where movants for interlocutory review under CR 65.09 have failed to address that question, we have declined to disturb facially reasonable trial court rulings, Kindred Hospitals v. Lutrell, supra; Oakwood Mobile Homes, Inc. v. Sproivls, supra, but here North Fork has adequately raised the contract issue. The Court of Appeals erred, therefore, by treating that issue as though review of it could be postponed until a final appeal without irreparably injuring North Fork’s rights.

Turning to whether the parties’ contracts provide for arbitration, this might, at first glance, appear to be an easy case. North Fork relies on the arbitration clause in the Asset Purchase Agreement, but Hall purports to be proceeding under the Assumption Agreement. The Asset Purchase Agreement and its arbitration clause might thus appear to be irrelevant and North Fork’s reliance thereon misplaced. The trial court and the Court of Appeals would then have been entirely correct in allowing the litigation to go forward. Upon even slightly closer scrutiny, however, it is apparent that notwithstanding Hall’s artful pleading, the Assumption Agreement cannot and will not carry the burden Hall is asking it to, and that to settle the issue Hall has raised — who between Hall and North Fork is responsible for the outstanding debt to the Community Trust Bank — it will be necessary to have recourse to the Asset Purchase Agreement.

This conclusion is clear from the provisions of the Assumption Agreement quoted above, upon which Hall purports to base its claim. Under that agreement North Fork and Traveler each agreed “absolutely, fully, irrevocably, personally, [and] unconditionally,” to be bound as joint and several primary obligors for the Community Trust Bank loan. Hall asserts that North Fork’s default breached that agreement, but even if it did, North Fork’s promise was to the Bank, not to Traveler, as fellow primary obligor, or to Hall, as guarantor, and the breach, therefore, would not give either of them a cause of action. Even were they deemed third-party beneficiaries of North Fork’s promise to the Bank, the benefit they would be entitled to is only that North Fork could be held jointly and severably liable for the loan debt. The Assumption Agreement, in short, concerns North Fork’s and Hall’s relationship with the Community Trust Bank, not with each other. It has nothing to say about which of them, if either, is responsible to the other for the Bank debt and thus it cannot resolve the issue Hall seeks to litigate.

This is hardly surprising given the fact that in conjunction with the Assumption Agreement the parties executed the Asset Purchase and Employment Agreements, in which their relationship with each other was spelled out in considerable detail. The Asset Purchase Agreement is twenty-six pages long; the Employment Agreement is seventeen pages. The Court of Appeals’ suggestion that these lengthy agreements might be deemed superseded by the contemporaneously executed, four-page Assumption Agreement is simply illogical. Nothing in the Assumption Agreement remotely suggests such an intention. The Court of Appeals may have been focusing on the Assumption Agreement’s merger clause, which provides in pertinent part that “[t]his Agreement and the Loan Documents and any amendments thereto referred to herein constitute the entire understanding between the parties with respect to the subject matter hereof and supersede all prior or contemporaneous agreements in regard thereto,” but as noted already the “subject matter” of the Assumption Agreement is the relationship between the parties and the Community Trust Bank. That agreement does not address Hall’s and North Fork’s relationship with each other, and was clearly not meant to merge or supersede the detailed agreements which do expressly address that relationship.

That Hall’s claim in fact, if not in form, relies on the Asset Purchase Agreement is apparent from reading the Complaint, where the Asset Purchase Agreement, not the Assumption Agreement, is identified as the source of North Fork’s obligation both to Traveler and to Hall and his wife, to repay the Community Trust Bank loan as well as its obligation to indemnify those Plaintiffs for any amounts which they are required to pay in the event of North Fork’s default. We agree with North Fork, therefore, that notwithstanding Hall’s attempt to plead around the Asset Purchase Agreement, that Agreement is necessarily the foundation for Hall’s claim against North Fork and, therefore, its arbitration clause is relevant.

That clause, headed “Arbitration and Jurisdiction,” provides in its entirety as follows:

EACH PARTY HERETO EXPRESSLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT TO TRIAL BY JURY OF ANY DISPUTE RELATING HERETO, INCLUDING ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING IN CONNECTION WITH THIS AGREEMENT, ANY TRANSACTION RELATING HERETO OR THERETO, OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THEREWITH, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. EACH PARTY HERETO CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN NEW YORK COUNTY, NEW YORK SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG ANY OF THE PARTIES HERETO PERTAINING TO THIS AGREEMENT, THE TRANSACTION, AND INVESTIGATION, LITIGATION, OR PROCEEDING RELATED TO OR ARISING OUT OF ANY SUCH MATTERS, ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY TO THIS AGREEMENT PROVIDED THAT THE PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF SUCH JURISDICTION AND THAT ANY SUCH DISPUTE MUST FIRST BE SUBMITTED TO BINDING ARBITRATION. EACH PARTY HERETO EXPRESSLY AGREES NOT TO ASSERT ANY CLAIM RELATING HERETO ELSEWHERE, BUT INSTEAD SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND HEREBY WAIVES ANY OBJECTION WHICH SUCH PARTY MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR INCONVENIENT FORUM.

(capitalization of text in original).

Hall argued below and suggests here that even if the Asset Purchase Agreement is applicable, this arbitration clause is so ambiguous as to be unenforceable. Generally, of course, in construing contracts courts endeavor to give effect to the parties’ intent as expressed by the ordinary meaning of the language they employed. Island Creek Coal Company v. Wells, 113 S.W.3d 100 (Ky.2003); Siler v. White Star Coal Company, 190 Ky. 7, 226 S.W. 102 (1920). Although not, perhaps, a model of lucid draftsmanship, the quoted provision nevertheless evidences the parties’ intent that disputes “pertaining to this agreement [the Asset Purchase Agreement]” “must first be submitted to binding arbitration,” and, if litigation ensues, litigated in New York County, New York. The mere fact that the clause addresses litigation as well as arbitration does not, as Hall suggests, render the provision ambiguous; the parties could have waived arbitration in favor of litigation and thus brought the litigation provisions into play immediately but, even where parties opt for arbitration initially, litigation frequently follows as the parties seek to enforce or challenge the arbitration award. Because, as discussed above, Hall’s claim that North Fork is liable to it for the Community Trust Bank loan is founded on the parties’ obligations set forth in the Asset Purchase Agreement, the Agreement’s arbitration clause applies, and the Pike Circuit Court abused its discretion by failing to give the arbitration clause effect.

Finally, Hall asserts that because the Complaint involves parties — Hall individually and his wife, as co-guarantors of Traveler’s debt to the Community Trust Bank, and the Bank itself — who were not parties to the Asset Purchase Agreement, the trial court could reasonably conclude that the matter should be litigated rather than arbitrated. Indeed, the United States Supreme Court has held that because the Federal Arbitration Act does not provide for scenarios in which some parties are and others are not subject to an arbitration agreement, parties to arbitration agreements may, without running afoul of the FAA, opt for State procedural rules that give the court discretion to stay arbitration pending related litigation. Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989). The parties here, however, have not opted for such an alternative rule, and under the FAA related litigation is to be stayed, if necessary, to allow for arbitration, not the other way around. Rodriguez v. American Technologies, Inc., 136 Cal.App.4th 1110, 39 Cal.Rptr.3d 437 (2006). The issue is a non-starter here, moreover, because again it is more a matter of artful pleading than substance. Hall named the Bank as a defendant, but as the Bank has correctly noted in filings with this Court, it is not a necessary party to the dispute between Hall and North Fork. Under the Assumption Agreement, the Bank may seek to recoup the outstanding balance on its loan from either or both of the joint primary obligors or from the guarantors, and need not address the question of priority among them or their rights vis-á-vis each other. The Bank’s claim, therefore, has no bearing on the arbitrability of Hall’s claim against North Fork.

Likewise, whatever claim Hall and his wife, as guarantors of Traveler’s debt, may have against North Fork, it does not derive from the Assumption Agreement, which gives them no rights against North Fork just as it gave no rights to Traveler. If their claims arise from their status as third-party beneficiaries of the Asset Purchase Agreement, and that appears to be what the Complaint in fact asserts, then even though they were not signatories to that Agreement they would be estopped from disavowing that Agreement’s arbitration provision. See Thomson-CSF, S.A. v. American Arbitration Association, 64 F.3d 773 (2nd Cir.1995) (discussing theories for binding nonsignatories to arbitration agreements, including the estoppel theory, whereby a third-party who knowingly accepts a direct benefit under the contract may be held to the contract’s arbitration clause). Here, Hall and his wife are claiming the direct benefit of the Asset Purchase Agreement’s loan assumption and indemnity provisions so they are estopped from disavowing the Agreement’s arbitration provision.

CONCLUSION

In sum, while CR 65.09 reserves interlocutory relief from injunctive rulings for instances of extraordinary cause, our cases recognize that a trial court’s improper denial of a motion to compel arbitration can supply that cause. Such is the case here. Although Hall, his wife and Traveler have taken pains to allege that North Fork breached the Assumption Agreement, not the Asset Purchase Agreement, the rights they assert all derive from the latter Agreement, not the former, and thus their claim plainly implicates the Asset Purchase Agreement’s arbitration clause. By exalting the form of the Complaint over its substance, the trial court deviated from the Federal Arbitration Act’s mandate that arbitration agreements be enforced and, consequently, abused its discretion. The Court of Appeals erred by ruling otherwise. Accordingly, we reverse the April 12, 2010 Order of the Court of Appeals and remand to the Pike Circuit Court for entry of an order granting North Fork’s motion to stay litigation so that the claims asserted by Barry and Leetha Hall and Traveler Coal, LLC, against North Fork may be submitted to arbitration.

MINTON, C.J.; CUNNINGHAM, NOBLE, and VENTERS, JJ., concur. SCHRODER, J., dissents without opinion. SCOTT, J., not sitting.

      . KRS Chapter 417 contains the Kentucky Uniform Arbitration Act. Recently, in Ally Cat, LLC v. Chauvin, 274 S.W.3d 451 (Ky.2009), this Court held that a Kentucky circuit court has no jurisdiction under KRS 417.200 to enforce an arbitration agreement unless the agreement provides for arbitration in Kentucky. None of the agreements at issue in this case provide for arbitration in Kentucky and thus the KRS 417.220 interlocutory appeal right is not available.

      . Section 2 of the Federal Arbitration Act provides in part that "A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. Hall does not dispute that the Asset Purchase Agreement evidences a transaction involving interstate commerce. Cf. Kodak Mining Company v. Carrs Fork Corporation, 669 S.W.2d 917 (Ky.1984) (noting that coal mining contracts are generally deemed to involve interstate commerce.) Where it applies, the federal act is enforceable in State, as well as federal court, Southland Corporation v. Keating, 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984), and indeed “[u]nder the FAA, state courts as well as federal courts are obliged to honor and enforce agreements to arbitrate.” Vaden v. Discover Bank, 129 S.Ct. at 1278.


author: LAMBERT, Judge:

text:
    COMMONWEALTH of Kentucky, Appellant, v. Thomas ELLIOTT, Appellee.
    No. 2009-CA-001603-MR.
    Court of Appeals of Kentucky.
    Sept. 10, 2010.

      Jack Conway, Attorney General, Michael J. Marsch, Assistant Attorney General, Frankfort, KY, for appellant.
    No brief for appellee.
    Before CLAYTON and LAMBERT, Judges; HENRY, Senior Judge.

      . Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.

   OPINION

LAMBERT, Judge:

The Commonwealth appeals a July 8, 2009, Logan Circuit Court order granting Thomas Elliott’s motion to suppress evidence of cocaine and drug paraphernalia found in his automobile. The Commonwealth contends the trial court erred in holding that the evidence was seized in violation of Elliott’s Fourth Amendment rights. After careful review, we reverse the trial court.

Despite being given several opportunities to do so, Elliott failed to file a brief. Accordingly, we will set forth the Commonwealth’s statement of facts and issues, presuming such to be correct. Kentucky Rules of Civil Procedure (CR) 76.12(8)(c).

In the early morning hours of March 15, 2009, Officer Roger Lindsey of the Rus-sellville Police Department observed Elliott park his vehicle in an empty public parking lot. Officer Lindsey watched Elliott rummage through his vehicle and then observed Elliott exit the vehicle and wander around the parking lot. Upon initiating contact with Elliott, Officer Lindsey testified that he detected a strong odor of alcohol.

Elliott informed Officer Lindsey that he had Parkinson’s disease. Conscious of Elliott’s disability, Officer Lindsey proceeded to perform a select series of field sobriety tests, which Elliott failed. Officer Lindsey then asked Elliott for consent to search his vehicle. Elliott consented, but as Officer Lindsey made the approach to Elliott’s vehicle, Elliott suddenly withdrew his consent. Prior to this withdrawal, Officer Lindsey observed a white powder substance on the middle console, driver’s seat, and gear shift of the vehicle. He also observed a couple of torn clear plastic baggie corners lying on the seat.

At this point, more field sobriety tests were performed, and Elliott failed each one. Officer Lindsey then placed Elliott under arrest for driving under the influence. Upon securing Elliott in the back of his cruiser, Officer Lindsey searched Elliott’s vehicle. There, he found cocaine in a Marlboro pack and drug paraphernalia located in the console.

On May 21, 2009, Elliott filed a motion to suppress the evidence discovered during the search of his vehicle. In testifying during this hearing, Officer Lindsey stated that at the time of arrest, he felt Elliott had more in his system than just alcohol due to the results of his field sobriety tests. Officer Lindsey also testified that he believed the white powder, observed in Elliott’s vehicle prior to Elliott’s arrest was a controlled substance. He formed this belief because of Elliott’s behavior, the results of the field sobriety tests, and his observation of the torn baggie corners. Laboratory results indicated that Elliott had both alcohol and cocaine in his system.

Upon considering the testimony, the trial court determined as follows:

Concerning the search of the interior of the automobile, the question is whether the search is justified as a search incident to arrest. The court cannot find that the observation of the plastic corners on the seat created probable cause that drugs would be found elsewhere in the interior of the car under the automobile exception to the warrant requirement. Analysis of the facts of this case involves the recent case of Arizona v. Gant [— U.S. -], 129 S.Ct. 1710, 173 L.Ed.2d 485 [(2009)] decided on April 21, 2009. In this case, the United States Supreme Court reversed (the majority did not characterize it as a reversal — but that is what it was) the longstanding rule established in New York v. Belton, 453 U.S. 454 [101 S.Ct. 2860, 69 L.Ed.2d 768 (1981)], which allowed officers to search, incident to arrest, the interior of a vehicle where a recent occupant had been subject to arrest. Gant concluded that the safety and evidentiary justifications underlying the “search incident to arrest” rationale apply only when there is a reasonable possibility that the person under arrest might still gain access to the vehicle.
The Gant Court recited that the purpose of the search-incident-to-arrest exception to the warrant requirement was 1) to protect officers from any weapons in the area, and 2) to safeguard any evidence of the offense of arrest. The Court reasoned that “if there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply.” Id. Despite this clear statement in the dicta of the opinion, the holding of Gant states that police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. This apparent conflict leaves open for legitimate argument whether the search-incident-to-arrest exception still applies where the arres-tee no longer has access to the area to be searched but it is still “reasonable to believe” evidence might be found in the area. In interpreting Gant, this Court will presume that the holding was intended to be consistent with the stated reasoning of the opinion. The holding is thus interpreted to mean that where the arrestee no longer has access to the area to be searched, the search-incident-to-arrest exception no longer applies.
In this case the search took place after Elliott was arrested and handcuffed in the back of the police cruiser. Under Gant, the search-incident-to-arrest exception cannot apply. This warrantless search must be found unreasonable and the evidence must be suppressed. It is recognized that the rules of search and seizure were changed and that the officer in fact acted reasonably in following what appeared to be the law at the time.

(Emphasis in original).

On July 24, 2009, the Commonwealth filed a motion to reconsider. In this motion, the Commonwealth pointed out relevant portions of Officer Lindsey’s testimony in which he indicated he observed a white powder substance in plain view of Elliott’s vehicle in addition to torn baggie corners, which the Commonwealth argued gave Officer Lindsey probable cause to search the vehicle for cocaine under the plain view exception. The Commonwealth further argued that because the search of Elliott’s vehicle was premised on a plain view observation of the white powder and torn baggies that it was not required to defend the search as a search incident to arrest, and therefore Gant is not implicated.

On August 3, 2009, the trial court granted, in part, the Commonwealth’s motion to reconsider by a hand written order stating, “[o]rder suppressing modified so as not to exclude evidence of visible powder and 4 baggie corners. Otherwise to remain as is.” (Emphasis added). In open court on that same day, the court explained its decision to modify its original order was based on the fact that the white powder on the console and the torn baggie corners were in plain view. Thus, the trial court ultimately decided to suppress only the cocaine found in the Marlboro pack found by Officer Lindsey in the console of Elliott’s vehicle.

The Commonwealth now appeals the trial court’s July 8, 2009, order suppressing evidence and the August 3, 2009, order modifying the July 8, 2009, order.

On appeal to this Court, the Commonwealth argues that the above ruling is erroneous as a matter of law. After careful review of controlling precedent, we agree. Our standards of review in this case are as follows:

When reviewing an order on a motion to suppress, the trial court’s findings of fact are conclusive if they are supported by substantial evidence. Using those facts, this Court then reviews de novo the trial court’s application of the law to those facts to determine whether its decision is correct as a matter of law.

Owens v. Commonwealth, 291 S.W.3d 704, 707 (Ky.2009) (internal citations and quotations omitted).

In Gant, the United States Supreme Court determined the scope of the so-called “search-incident-to-arrest” rule. 129 S.Ct. at 1723. This rule is really an exception. It is an exception to the well-settled constitutional tenet that “all searches without a warrant are unreasonable....” Owens, 291 S.W.3d at 707 (quoting Cook v. Commonwealth, 826 S.W.2d 300, 331 (Ky.1992)).

In applying Gant, the Kentucky Supreme Court has directed as follows:

The [United States] Supreme Court previously afforded officers virtual carte blanche to search an automobile incident to the arrest of a recent occupant of a vehicle, holding that “[o]nce an officer determines that there is probable cause to make an arrest, it is reasonable to allow officers to ensure their safety and to preserve evidence by searching the entire passenger compartment.” Thornton v. United States, 541 U.S. 615, 623, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004). This carte blanche has been greatly reduced by Gant, however. According to the new, far more restrictive rule expressed in Gant, “[p]olice may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” 129 S.Ct. at 1723.

Owens at 708 (emphasis added).

The Gant Court explained that permitting officers to search the vehicle of an arrestee occupant without a warrant in circumstances where it is reasonable to believe that the vehicle contains evidence of the offense of arrest is necessary and legitimate due to “circumstances unique to the vehicle context[.]” 129 S.Ct. at 1719 (citing Justice Scalia’s concurrence in Thornton, 541 U.S. at 632, 124 S.Ct. 2127). These circumstances include “the ready mobility of automobiles as well as the reduced expectation of privacy [one has] in an automobile, owing to its pervasive regulation.” Dunn v. Commonwealth, 199 S.W.3d 775, 776 (Ky.App.2006) (citing Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 2487, 135 L.Ed.2d 1031 (1996)) (internal quotation omitted). Accordingly, we agree with the Commonwealth that the trial court erred as a matter of law in ruling that the search-incident-to-arrest exception to the warrant requirement was not available unless the arrestee is within reaching distance of the passenger compartment of the automobile. A reasonable reading of Gant, as set forth by our Supreme Court in Owens, clearly holds that the exception is also available if it is reasonable to believe the vehicle contains evidence of the offense of arrest.

The Commonwealth further argues that the trial court erred by rejecting its argument that the search of Elliott’s automobile was permissible under the “automobile” exception to the warrant requirement. This exception “permits an officer to search a legitimately stopped automobile [without a warrant] where probable cause exists that contraband or evidence of a crime may be in the vehicle.” Morton v. Commonwealth, 232 S.W.3d 566, 569 (Ky.App.2007).

In reviewing a probable cause determination, we are guided as follows:

[T]he ultimate issue of the existence of reasonable suspicion or probable cause is a mixed question of law and fact subject to de novo review. In conducting this analysis, the reviewing court must give due weight to inferences drawn from the facts by the trial court and law enforcement officers and to the circuit court’s findings on the officers’ credibility-

Baltimore v. Commonwealth, 119 S.W.3d 532, 539 (Ky.App.2003) (internal footnotes omitted).

In this case, the trial court found that Officer Lindsey acted reasonably and made no findings questioning his credibility. According to Officer Lindsey, he believed the white powder he observed on the middle console, driver’s seat, and gear shift of Elliott’s vehicle was an illegal controlled substance based on the following: (1) Elliott’s behavior; (2) the results of the field sobriety tests; and (3) the existence of a couple of torn clear plastic baggie corners lying on the seat. Based on the totality of these circumstances, we agree that this evidence compels a conclusion that Officer Lindsey had probable cause to believe that contraband was present in the vehicle. See McCloud v. Commonwealth, 279 S.W.3d 162, 167 (Ky.App.2007) (probable cause found where officers observed various items used in the manufacture of methamphetamine). The trial court’s contrary conclusion was erroneous as a matter of law.

Pursuant to the above analysis, we hereby reverse the Logan Circuit Court’s August 3, 2009 order, which modified the order entered on July 8, 2009, granting Thomas Elliott’s motion to suppress evidence of cocaine and drug paraphernalia found in his automobile. Officer Lindsey’s search of Elliott’s vehicle was lawful under both the revised “search-ineident-to-ar-rest” exception set forth in Gant and the “automobile” exception.

ALL CONCUR.