IMPORTANT NOTICE
"NOT TO BE PUBLISHED OPINION"
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED" PURSUANT TO RULE OF APPELLATE
PROCEDURE (RAP) 40(D). THIS OPINION SHALL NOT
BE CITED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE.
UNDER RAP 41, UNPUBLISHED OPINIONS OF
KENTUCKY APPELLATE COURTS RENDERED
AFTER JANUARY 1, 2003, THAT ARE FINAL UNDER
RAP 40(G), MAY BE CITED BY A PARTY FOR
CONSIDERATION BY A COURT IF THERE IS NO
PUBLISHED OPINION THAT ADEQUATELY
ADDRESSES THE POINT OF LAW BEING ARGUED
BY A PARTY.
IF AN UNPUBLISHED OPINION IS CITED FOR
CONSIDERATION BY A COURT THE OPINION SHALL
BE SET OUT AS AN UNPUBLISHED OPINION IN THE
DOCUMENT IN WHICH THE UNPUBLISHED
OPINION IS CITED.
1
RENDERED: SEPTEMBER 24, 2026
NOT TO BE PUBLISHED
Supreme Court of Kentucky 2025-SC-0189-MR
TIMOTHY MCQUEARY APPELLANT
V.
ON APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MITCHELL PERRY, JUDGE
NO. 22-CR-001039
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Timothy McQueary was convicted following a jury trial in Jefferson Circuit Court of rape in the first degree, four counts of sodomy in the first degree, three counts of sexual abuse in the first degree, four counts of incest, and intimidating a participant in the legal process. He was sentenced to serve an aggregate term of thirty years in prison and appeals to this Court as a matter of right.1Following a careful review, we affirm.
FACTS AND PROCEDURAL HISTORY
In June of 2020, McQueary and his wife, Dottie, purchased a home in Louisville, Kentucky, where they lived along with Dottie's two minor biological
2
2
children, S.C.2and J.C. At that time, S.C. was seven years old. The marriage was far from perfect, and the relationship deteriorated to the point where discussions of divorce and property division became common. April 1, 2022, was S.C.'s ninth birthday. That day, Dottie awakened around 3:20 a.m. to discover that McQueary was not in bed with her. She looked for him in the bathroom, but he was not there. As she continued her search, she noticed that S.C.'s bedroom door was open, but S.C. was not in her room. Dottie found McQueary smoking in the basement dressed only in a robe, and he indicated he would return to bed shortly.
On her way back upstairs, Dottie saw a light in a spare bedroom which should not have been on, and the door was slightly ajar. When she entered the room, she saw a white towel and a bottle of personal lubricant on the bed. S.C. was crouching beside the bed, pulling up her underwear. Although she initially denied anything was happening, upon further questioning, S.C. picked up the bottle of lubricant and told Dottie that McQueary was "trying to use this to get inside of me." Dottie immediately called 911 to report the events, and police responded to the scene to begin an investigation. Later that day, S.C. went to the hospital for a sexual assault examination and spent most of her birthday there.
Dottie had previously set up motion-activated security cameras throughout the interior and exterior of the home to watch her children to
3
ensure they were not bothering McQueary's woodworking items or taking food from the refrigerator when they were not supposed to. One of the cameras was intended to be trained on the stairwell to the basement, but McQueary often moved it because he did not want others "knowing his comings and goings."
Both Dottie and McQueary had access to the camera system through an app on their phones. Notably, for a period of approximately four hours between 1:46 a.m. and 5:59 a.m. on April 1, 2022, the stairwell camera stopped recording.
Investigating officers from Louisville Metro Police Department (LMPD) collected numerous articles of evidence from the home, which were sent to an outside lab for DNA testing and analysis. They also obtained over 6,800 video clips recorded by the home's security cameras as well as messages and data from Dottie and McQueary's cellphones and social media accounts. Based on the evidence collected, McQueary was subsequently indicted for rape, sodomy, incest, sexual abuse, and intimidating a participant in the legal process. At trial, S.C. testified that April 1, 2022, was her ninth birthday. That night she had gone to sleep in her room but woke up downstairs in the spare room. She assumed McQueary must have carried her there. McQueary took off her shirt, pajama pants, and underwear before touching her with his hands
"everywhere except around [her] head." He said nothing during the attack and stopped only when he heard Dottie coming down the stairs. S.C. remembered telling Dottie she didn't know what was going on and was unsure what the bottle of lubricant was for. However, she did know the towel was there to wipe
4
off something "white" that came out of McQueary's "front part." She explained it "didn't get that far" that night because he was interrupted. S.C. described other instances of abuse. She said McQueary would sometimes put his "front private part" on the outside of her "front private part."
Other times, he would carry her to the basement where he would place her on a chair he used for performing tattoos, touch her in various sexual ways, and force her to perform oral sex on him. She said McQueary would place his private part in her mouth and make thrusting motions until "white stuff" came out into her mouth. She would spit the "white stuff" onto a towel. Other times he would make her grab his front part with her hand while he moved back and forth until she let go because she "didn't want to do it." During these events, his front part would get bigger. McQueary also put his mouth and hands on the outside and inside of her front part. She recalled that McQueary would sometimes place her on her stomach on the tattoo chair and try to insert a wooden object he had made into her "back part." He had previously given her similar objects and told her to "practice" with them.
S.C. did not disclose the abuse to anyone. McQueary threatened that if she ever told, he would "find a way out of jail," but if she kept the secret, he would buy her a new phone for her birthday and give her preferential treatment over her brother. In an attempt to normalize the behavior, he told S.C. that Dottie had been doing "what [they] were doing" since she was five years old. Dottie had not previously disclosed to S.C. that she had been sexually abused by a relative when she was a child.
5
Over the course of the seven-day trial, the jury also heard testimony and received evidence from—among others—officers who responded to the initial 911 call, Dottie, the physician who examined S.C. following discovery of the abuse, the lead detective on the case, and a forensic scientist from the DNA laboratory. McQueary exercised his right not to testify in his own defense. The jury convicted McQueary of all charges and recommended sentences of thirty years on each count of rape, sodomy, and incest, five years for each count of sexual abuse, and one year for intimidating a participant in the legal process, with all sentences to be run concurrently. The trial court imposed an aggregate sentence of thirty years' imprisonment. This appeal followed.
ANALYSIS
McQueary raises four allegations of error in seeking reversal. First, he contends the trial court violated his Sixth Amendment right to confrontation in allowing testimony from the Commonwealth's DNA expert. Second, he asserts the Commonwealth failed to establish a sufficient chain of custody to present the DNA evidence to the jury, and the trial court erred in not so concluding. Third, McQueary argues the Commonwealth was improperly permitted to elicit hearsay to bolster Dottie's credibility. Fourth, he alleges the trial court erred in refusing to permit him to cross-examine S.C. about prior inconsistent statements. Finally, he also contends that if none of the errors alone warrant relief, their cumulative effect does, in fact, mandate reversal.
I. No Sixth Amendment Violation Occurred in Allowing DNA Expert Testimony.
6
McQueary first argues the trial court erroneously permitted the Commonwealth to introduce testimonial hearsay through its DNA expert, senior lab analyst Rebecca Williams, in violation of his Sixth Amendment right to confrontation. He contends the expert was a "surrogate analyst" who was permitted to testify regarding work done by others, leaving him without an avenue to properly challenge and cross-examine the individuals who conducted the testing regarding their methods and conclusions.
DNA Labs, Intl. (DLI) was contracted by LMPD to perform DNA analysis. Williams testified extensively regarding the results of testing on the various samples the laboratory received relative to this case. She first explained the lab's accreditation procedure and that it complied with national standards before discussing the various processes utilized to obtain results. For each item sent to the lab, Williams provided a "likelihood ratio" that McQueary was a
"contributor" to the tested DNA mixture. She explained her analysis of each item as well as S.C.'s sexual assault kit. While several of the samples showed the presence of male DNA, the sample size was insufficient to develop a full profile. In others, including S.C.'s exterior genitalia swabs, McQueary could not be excluded as being a contributor.
On cross-examination, and pertinent to the issue raised in this appeal, she testified that all of the actual testing was performed by technicians in Florida and the raw results and data from that testing were forwarded to her in Minnesota for analysis and her ultimate conclusions. Williams conceded she did not personally perform any of the laboratory testing nor did she physically
7
come into contact with any of the samples provided. She was also unable to identify the technicians who produced the data underlying her analysis. However, she stated she was the one who reviewed and analyzed the data. Near the end of Williams' cross-examination, and citing Bullcoming v. New Mexico, 564 U.S. 647 (2011), McQueary asked the trial court to strike her testimony because she did not perform any of the testing. The trial court denied the motion, conceding it was unaware of the holding in Bullcoming, but concluding Williams was the actual analyst working in a team approach spanning multiple states. The trial court stated defense counsel could "submit something on it" and counsel indicated it would do so. However, no additional filings were presented nor was there any further discussion of the issue. McQueary now asserts the trial court's ruling constituted a Confrontation Clause violation. We disagree.
The Confrontation Clause of the United States Constitution provides that
"[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]" U.S. Const. amend. VI; U.S. Const. amend. XIV. See also Ky. Const. § 11 ("In all criminal prosecutions the accused has the right to . . . meet the witnesses face to face[.]") In the context of forensic evidence, the United States Supreme Court has concluded that reports detailing the results of forensic testing and analysis are testimonial in nature and neither the report not its contents may be admitted in the absence of the declarant who prepared the report and the prosecution may not resort to the use of a surrogate analyst to introduce the testimonial hearsay. See Smith
8
v. Arizona, 602 U.S. 779 (2024); Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009); Bullcoming, 564 U.S. at 647. Because forensic reports are testimonial, they are subject to a defendant's right of confrontation under the Sixth Amendment. Melendez-Diaz, 557 U.S. at 307.
In Smith, numerous items of drug evidence were seized and sent to a lab for testing. An analyst at the lab communicated with prosecutors, ran the requested tests, and prepared notes and a report to be used at trial. For unexplained reasons, the analyst left her employment with the lab before trial could begin. The prosecution opted to call a different analyst from the lab to testify as a "substitute expert" who reviewed the first analyst's work and reached the same conclusions. The Supreme Court concluded that because the second analyst had not participated in any of the testing or analysis and was merely reading from the first analyst's records, the defendant's confrontation rights had been violated.
Similarly, in Melendez-Diaz, the prosecution sought to introduce baggies of cocaine linked to the defendant along with three "certificates of analysis"
showing the results of forensic testing performed on the substances contained within the baggies. The certificates were signed before a notary by the analyst who performed the testing as required under Massachusetts law. An additional statute provided that the sole purpose of the certificates was to provide "prima facie evidence of the composition, quality, and net weight" of the analyzed substance. At trial, none of the analysts were present to testify. The Supreme Court readily concluded the certificates were testimonial and the analysts were
9
"witnesses" for Sixth Amendment purposes, and the defendant was denied his right to be confronted by them at trial.
Finally, in Bullcoming, the analyst who performed testing of the defendant's blood sample was placed on unpaid leave prior to trial. The prosecution sought to introduce the analyst's report as a "business record"
through another analyst who was familiar with the testing methods, machines, and processes but who did not personally perform or observe testing of the defendant's blood sample. The Supreme Court held that the prosecution could not admit a forensic laboratory report bearing a testimonial certification which was prepared solely to prove a fact at a criminal trial by use of the in-court testimony of another analyst unless the first analyst was unavailable and the defendant had a prior opportunity to confront that witness. This Court recently considered the foregoing cases to determine whether forensic evidence constituted testimonial hearsay subject to the Confrontation Clause. Baldwin v. Commonwealth, 723 S.W.3d 676 (Ky. 2025). In that case, the defendant's cellphone was seized, and the data was extracted by an analyst from Cellebrite.3That raw data was not further analyzed by anyone at Cellebrite but was sent to the Kentucky State Police (KSP), which ran further testing that generated a report translating the data into usable form that confirmed the presence of child pornography. That report and the raw data
10
were forwarded to the local detective who had arrested the defendant. At trial, the defendant's cellphone and numerous images of child pornography revealed by the data extraction were introduced into evidence. The detective and KSP Trooper who performed the analysis testified; the Cellebrite analyst did not. Baldwin appealed his conviction, asserting the absence of the Cellebrite analyst constituted a confrontation violation. We disagreed and concluded that the Cellebrite extraction was not testimonial because it contained only raw, machine-produced data; the analyst who conducted the extraction did not render any conclusions or assertions relative to that data; and the officers who ultimately analyzed and translated the data were available and did testify. In this case, we conclude Williams was not the type of surrogate analyst prohibited by Smith, Melendez-Diaz, and Bullcoming as McQueary posits. Rather, much like in Baldwin, Williams received raw data generated by other testing technicians. Those technicians offered no conclusions or opinions about the results of their testing and made no testimonial statements. Upon receipt of that raw data, Williams undertook a detailed analysis and interpretation of the results, made appropriate comparisons among the various data, and generated a report detailing her findings. She was the only individual to translate the raw data into a usable and coherent DNA profile and draw a conclusion that McQueary was a contributor to the samples which were collected. Therefore, her report was the only one containing testimonial statements subject to McQueary's right to confrontation. Williams was called to testify and subjected to rigorous cross-examination as required under the
11
Sixth Amendment. Indeed, we are "satisfied that [McQueary's] Confrontation Clause rights were not violated because they were never implicated to begin with[.]" Id. at 695.
II. The Commonwealth Sufficiently Proved the Chain of Custody.
McQueary next contends the Commonwealth failed to establish a sufficient chain of custody for the DNA evidence to permit its admission. He argues the chain "broke" once the out-of-state laboratory received the evidence. We disagree.
"[A]buse of discretion is the proper standard of review of a trial court's evidentiary rulings." Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000). A trial court abuses its discretion if its decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). McQueary concedes the Commonwealth sufficiently proved the chain of custody from LMPD to the Kentucky State Police and back. However, he argues the chain was incomplete because Williams was unable to identify each and every person within the lab who may have interacted with the samples once they were received at DLI and that she, herself, did not physically touch or see the samples. Further, he asserts it was error to allow presentation of the chain of custody in a nonlinear fashion, as Williams testified prior to the Commonwealth providing testimony that the samples had been collected, sent to KSP, and then forwarded to DLI.
12
The purpose of proving a chain of custody of items such as blood, DNA, or other bodily fluids or secretions—as opposed to physical evidence which is clearly identifiable and distinguishable—is to show that the sample tested in a laboratory is the same specimen as collected by law enforcement for the purpose of analysis. "All possibility of tampering does not have to be negated. It is sufficient . . . that the actions taken to preserve the integrity of the evidence are reasonable under the circumstances." Thomas v. Commonwealth,
153 S.W.3d 772, 782 (Ky. 2004). The admission of physical evidence requires
"a finding that the matter in question is what its proponent claims." KRE 901(a)4.
Logically, a proper foundation requires the proponent to prove that the proffered evidence was the same evidence actually involved in the event in question and that it remains materially unchanged from the time of the event until its admission. The necessary foundation depends upon the nature of the evidence. Evidence readily identifiable and impervious to change may be admitted based solely on testimony that it appears to be the actual object in an unchanged condition. However, the more fungible the evidence, the more significant its condition, or the higher its susceptibility to change, the more elaborate the foundation must be.
Thomas, 153 S.W.3d at 779.
Even with respect to substances which are not clearly identifiable or distinguishable, it is unnecessary to establish a perfect chain of custody or eliminate all possibility of tampering or misidentification, so long as there is persuasive evidence that the reasonable probability is that the evidence has not been altered in any material respect. Gaps in the chain normally go to the weight of the evidence rather than to its admissibility.
13
Rabovsky v. Commonwealth, 973 S.W.2d 6, 8 (Ky. 1998) (internal citations and quotation marks omitted).
Here, the Commonwealth provided sufficient testimony from Williams, Detective Livers, and KSP analysts to prove there was a reasonable probability that the DNA evidence was not altered in any material respect between collection and trial. Contrary to McQueary's assertion that the chain broke somewhere inside DLI, "[i]t is unnecessary . . . that the police account for 'every hand-to-hand transfer' of the item; it is sufficient if the evidence demonstrates a reasonable assurance the condition of the item remains the same from the time it was obtained, until its introduction at trial." State v. Price, 731 S.W.2d 287, 290 (Mo. Ct. App. 1987). There was persuasive evidence and testimony presented as to the chain of custody of the samples. Any gaps in Williams' ability to identify the individuals involved within her lab in the testing processes would impact the weight of the results rather than their admissibility. Rabovsky, 973 S.W.2d at 8. Plainly, "the adequacy of the chain of custody was a factual question which the jury resolved against the appellant[]." U.S. v. Graham, 464 F.2d 1073, 1076 (5th Cir. 1972). Additionally, apart from his own bald assertions and unsupported beliefs, McQueary offers no authority for his claim that the Commonwealth's nonlinear presentation of evidence of the chain of custody was erroneous. Bare assertions, lacking evidentiary support and deficient in legal reasoning, carry no weight and cannot form a basis for relief. We are loath to create an
14
argument for a party and will not practice the case for them. See Milby v. Mears, 580 S.W.2d 724, 727 (Ky. 1979).
III. There Was No Improper Bolstering.
For his third allegation of error, McQueary contends the trial court erred in failing to fully grant his motion to limit testimony from Dr. Rebecca Hart. While the trial court prohibited any testimony which would identify the perpetrator of the abuse, it declined to prohibit Dr. Hart from repeating allegations made to her by S.C. during a medical examination following the events of April 1, 2022. It so ruled based on its determination that the testimony would be covered by the hearsay exception contained in KRE 803(4). He believes the Commonwealth was improperly permitted to elicit testimony that implied he was the perpetrator and to further introduce evidence which was not pertinent to medical treatment but was instead hearsay intended to bolster Dottie's credibility. As previously stated, evidentiary rulings are reviewed for abuse of discretion. Goodyear Tire, 11 S.W.3d at 577. During her testimony, Dr. Hart explained she and her team obtain a medical history to determine what type of examination is warranted under the circumstances. She indicated that in this case, the team first spoke with Dottie and then talked with S.C. Dottie informed them she had awakened to find neither her partner nor S.C. in their respective beds but subsequently located S.C. in the guest room pulling up her pants. S.C. subsequently informed her that she had been touched all over, thereby warranting a call to 911 and the ensuing visit to the emergency room for an examination. Dr. Hart
15
also indicated a medical form had a box checked for "verbal threats" and stated her recollection that S.C. had reported being threatened with bodily harm or death if the abuse was disclosed. It is these statements which McQueary contends tainted his trial and require reversal.
KRE 803(4) provides out-of-court statements "made for purposes of medical treatment or diagnosis and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to treatment or diagnosis" are not excluded by the hearsay rule. The underlying reason for this hearsay exception "is the patient's desire for treatment, not the doctor's duty to treat, that gives credibility to the patient's out-of-court statement." Colvard v. Commonwealth, 309 S.W.3d 239, 245 (Ky. 2010). Determination of whether a statement falls within the exception is based upon whether the content is of the type "reasonably relied on by a physician in treatment or diagnosis." Id. "Generally, in a child sex abuse case, only those statements that relate to the patient's physical injuries and what caused them are pertinent to treatment and diagnosis under KRE 803(4)." Hoff v. Commonwealth, 394 S.W.3d 368, 374 (Ky. 2011). "[T]he general rule is that the identity of the perpetrator is not relevant to treatment or diagnosis." Colvard,
309 S.W.3d at 244 (citation omitted). It is well-recognized this kind of hearsay testimony is significantly prejudicial when repeated by a professional. See Sharp v. Commonwealth, 849 S.W.2d 542, 545 (Ky. 1993).
16
As with his previous contention, McQueary offers little more than bare assertions and unsupported beliefs in seeking relief. There is little doubt that a physician requires some factual background regarding a patient and the reason that person is seeking treatment to inform his or her decision regarding appropriate medical care. Here, Dr. Hart was acting in the normal course of treatment as S.C.'s physician. She recounted the information she received from Dottie and S.C. and indicated this was pertinent to her and her team to decide "how much of an exam [was] necessary" and whether a sexual assault kit or other testing was needed. Clearly, the background facts were made by Dottie and S.C. for the purpose of receiving treatment or diagnosis and thereby fall squarely under the exception contained in KRE 803(4). Unlike Hartsfield v. Commonwealth, 277 S.W.3d 239 (Ky. 2009), or Manery v. Commonwealth, 492 S.W.3d 140 (Ky. 2016), this is not a case where a medical professional was working with or in cooperation with the police to gather evidence through formal interviews. See Commonwealth v. McKee, 486 S.W.3d 861, 869 (Ky. 2016). Thus, Dr. Hart's testimony and medical records did not constitute inadmissible testimonial statements and were properly admitted pursuant to
KRE 803(4).
In addition, we discern no error in admission of the brief statements regarding S.C.'s recounting of threats against her. The threats were relevant to explain any delay in reporting her abuse and further assisted Dr. Hart in determining whether fresh injuries or trauma would likely be present. This, in
17
turn, helped inform Dr. Hart's decisions on the necessity for additional testing or treatment.
Finally, contrary to McQueary's fleeting challenge, based upon our review of the record, it is plain that Dr. Hart did not identify McQueary as the perpetrator. She did not attribute the threats or abuse to him, nor did she mention his name. In addition, her singular reference to Dottie's "partner" did not imply that McQueary committed any act of wrongdoing. There was no error.
IV. The Trial Court Properly Limited Cross-Examination.
McQueary next argues the trial court denied his right to cross-examine S.C. relative to her prior inconsistent statements in violation of his rights under the Sixth Amendment. He also asserts he was improperly denied the ability to impeach S.C.'s testimony through another witness. We disagree. On cross-examination, S.C. made some vacillating and inconsistent statements from those she gave during her interview at the Child Advocacy Center (CAC). McQueary then introduced a transcript of the CAC interview to impeach her on her in-court testimony. During a lengthy bout of questioning following introduction of the transcript, S.C. repeatedly pushed back on defense counsel's repeated assertions she was being inconsistent. Numerous times, defense counsel berated S.C. and, as noted by the trial court, was simply "blurting out stuff from the transcript" rather than asking questions. The cross-examination proceeded for another half hour before defense counsel requested the trial court to permit him to play video clips of the CAC interview.
18
The trial court denied the motion, indicating counsel had failed to directly inquire whether S.C. believed the transcript was accurate. It further noted that there was no legitimate challenge to the veracity of the transcript. Indeed, the trial court and Commonwealth agreed the transcript was accurate. Nevertheless, the trial court stated counsel had clearly obtained sufficient responses from S.C. to imply that the transcript was accurate and that S.C.'s memory was different. In the trial court's estimation, introducing the recordings would have no impact on the defense's ability to argue the existence of discrepancies in the transcript and S.C.'s trial testimony for impeachment purposes.
Later in the day, the CAC interviewer, Becky Lee, was called to testify. At the beginning of her cross-examination, defense counsel attempted to question her about the veracity of the interview transcript to impeach S.C.'s recollection of events. The trial court again rejected McQueary's endeavor, indicating it was improper to impeach the prosecuting witness through another witness with hearsay statements. Additionally, S.C. had previously been impeached with the transcript, and no rule of evidence permitted the line of questioning proposed by the defense. Immediately thereafter, Lee was questioned about the recording and the purposes thereof, including the ability to easily and readily resolve any discrepancies in recollections of what was said during the interview. McQueary now contends the trial court's rulings were erroneous. Both the United States Constitution and the Kentucky Constitution protect a criminal defendant's "right to present a complete and meaningful
19
defense." Roberson v. Commonwealth, 694 S.W.3d 272, 280 (Ky. 2024) (citation omitted). "The defendant is allowed to actively defend the case, which includes the right to put on evidence. . . . [T]rial judges must leave litigants with the flexibility to produce the most convincing case they have." Daugherty
v. Commonwealth, 467 S.W.3d 222, 234 (Ky. 2015) (citation omitted). However,
"[t]he right to present a defense . . . does not abrogate the rules of evidence."
Roberson, 694 S.W.3d at 280 (internal quotation marks and citation omitted). Nevertheless, "[t]rial courts retain broad discretion to regulate cross- examination." Bratcher v. Commonwealth, 151 S.W.3d 332, 342 (Ky. 2004). That discretion extends to "determining whether testimony is 'inconsistent' with prior statements; inconsistency is not limited to diametrically opposed answers but may be found in evasive answers, inability to recall, silence, or changes of position." Meece v. Commonwealth, 348 S.W.3d 627, 672 (Ky. 2011) (internal citations omitted). So long as a trial court's exclusion of evidence
"does not significantly undermine fundamental elements of the defendant's defense," we review the decision for abuse of discretion. Newcomb v. Commonwealth, 410 S.W.3d 63, 85 (Ky. 2013) (footnote omitted). The right to cross-examine witnesses is essential to the Sixth Amendment Confrontation Clause. Commonwealth v. Armstrong, 556 S.W.3d 595, 602 (Ky. 2018) (footnote omitted). "Witness credibility is always at issue and relevant evidence which affects credibility should not be excluded."
Commonwealth v. Maddox, 955 S.W.2d 718, 721 (Ky. 1997) (citation omitted). Yet, the court may limit cross-examination based on "harassment, prejudice,
20
confusion of the issues, the witness'[s] safety, or interrogation that is repetitive or only marginally relevant." Newcomb, 410 S.W.3d at 85. (footnote omitted). The trial court must apply limitations to cross-examination cautiously. Maddox, 955 S.W.2d at 720 (citations omitted). Such limitations cannot hinder the defendant's ability to develop a "reasonably complete picture of the witness' veracity, bias and motivation[.]" Id. at 721 (citation omitted). A review of the record readily reveals S.C.'s answers during cross- examination did not align with the admittedly correct transcript of her CAC interview. There can be no doubt her testimony was inconsistent with the interview. Defense counsel vehemently and repeatedly made this point during his questioning of her. S.C. was confronted with the transcript and was questioned about it extensively but persisted in her answers, which did not match her previous statements. Only after a multitude of questions and reading segments of the transcript revealing the discrepancies did counsel attempt to introduce the videos from which the transcript was made. However,
"[b]efore other evidence can be offered of the witness having made at another time a different statement, he must be inquired of concerning it, with the circumstances of time, place, and persons present, as correctly as the examining party can present them[.]" KRE 613 (a). Under the facts of this case, it is plain that S.C.'s credibility had already been adequately impeached on cross-examination by use of the transcript, and McQueary was able to show the jury a "reasonably complete picture" of her veracity. Id. As correctly found by the trial court, allowing the video would have lacked any further
21
impeachment purpose and would have been nothing more than cumulative. See Bratcher, 151 S.W.3d at 342 (holding that "[p]laying the videotape would have had no impeachment value and would simply have been cumulative"). We cannot discern any error in the trial court's disallowance of the video. For similar reasons and with equal force, we reject McQueary's challenge to the limitations placed on his questioning of Lee. The line of questioning he sought to pursue was intended solely to have her verify the correctness of the transcript, a matter he had failed to ask S.C., and was an issue that was not in dispute. Further, because there was never a serious controversy as to the accuracy of the transcript, any statement by Lee on the matter would have been marginally relevant, at best. Additionally, had the trial court permitted McQueary's questioning, Lee would have been essentially commenting on S.C.'s veracity through the guise of impeachment, which would be undeniably suspect if not wholly improper. Again, we discern no abuse of discretion in the trial court's ruling.
V. No Cumulative Error Occurred.
Finally, McQueary contends his convictions should be overturned due to cumulative error. We disagree.
Under the cumulative error doctrine, "multiple errors, although harmless individually, may be deemed reversible if their cumulative effect is to render the trial fundamentally unfair." Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010). Cumulative error has been found "only where the individual errors were themselves substantial, bordering, at least, on the prejudicial." Id. (citing
22
Funk v. Commonwealth, 842 S.W.2d 476 (Ky. 1992)). Further, "[w]here . . . none of the errors individually raised any real question of prejudice, we have declined to hold that the absence of prejudice plus the absence of prejudice somehow adds up to prejudice." Id. (citing Furnish v. Commonwealth, 95 S.W.3d 34 (Ky. 2002)).
As we have found no individual errors, there can be no cumulative error.
CONCLUSION
For the foregoing reasons, the judgment of the Jefferson Circuit Court is affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Erin Hoffman Yang Assistant Public Advocate
COUNSEL FOR APPELLEE:
Russell M. Coleman Attorney General of Kentucky Graham Pilotte
Assistant Solicitor General