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RENDERED: FEBRUARY 15, 2018 

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201 7 -SC-000234-MR · 

[))~ lrEi~r&:J&;.~,DC- JOHNNY BURCHETT APPELLANT 

v. 

ON APPEAL FROM CLINTON CIRCUIT COURT 

HONORABLE DAVID L. WILLIAMS, JUDGE 

NO. 16-CR-00060 

COMMONWEALTH OF KENTUCKY 

MEMORANDUM OPINION OF THE COURT 

AFFIRMING 

APPELLEE 

In June of 2016, Appellant, Johnny Burchett, was living with his mother, 

Arlene Burchett, in Clinton County, Kentucky. On June 14, 2016, a Federal 

Express package addressed to Appellant was delivered to Arlene's house. After 

Appellant opened the parcel, Arlene observed that it contained drugs. Soon 

thereafter, she contacted her pastor, Brother Ted Burchett. Bro. Burchett anq 

Arlene then informed the police that Appellant was in possession of drugs. 

While searching Arlene's residence, investigating officers discovered nearly a 

pound of methamphetamine in an open package located in Appellant's 

bedroom. Appellant was subsequently arrested and questioned by the police. 
Appellant cooperated with the police and informed them that he received 

the package from someone named Hector in Arizona. Appellant stated that he I -

was going to sell the meth and then send some of the proceeds to Hector as 

payment. Appellant worked with the Kentucky State Police (KSP) and 

authorities in Arizona in order to catch Hector. However, Appellant backed out 

of the deal immediately before KSP was scheduled to contact Hector. 

Appellant was tried and convicted by a Clinton County Circuit Court jury 

of first-degree trafficking in a controlled substance (TICS), and for being a 

second-degree persistent felony offender (PFO). The jury recommended a total 

sentence of twenty years' imprisonment, which was imposed by the trial court. 

Appellant now appeals his judgment and sentence as a matter of right 

pursuant to§ 110(2)(b) of the Kentucky Constitution. 

Trial Testimony 

Appellant raises only one issue on appeal. He argues _that during his 

cross-examination by the Commonwealth, the court erred ·by permitting the 

prosecutor to ask him whether his mother, Arlene, was lying. This issue arose 

after Appellant's testimony directly contradicted Arlene's testimony. The 

prosecutor asked him twice whether Arlene lied. Each time, Appellant provided 

an evasive response. The judge instructed Appellant to answer the question. 

Appellant stated that Arlene made a "mistake" and that she testified falsely to 

protect his sister. 

Appellant failed to oqject to this line of questioning and the judge's 

instruction to answer the question. Because this issue was not properly 

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preserved, we will review for palpable error. See RCr 10.26; and Mccleery v. 

Commonwealth, 410 S.W.3d 597, 606 (Ky. 2013) (we will not reverse uriless "it 

can be determined that manifest injustice, i.e., a repugnant and intolerable 

outcome, resulted from that error."). 

In Moss v. Commonwealth, we stated 'thaf"[a] witness should. not be 

required to characterize the testimony of another witness, [] as lying." 949 

S.W.2d ~79, 583 (Ky. 1997). Therefore, we agree that it was error for the trial· 

court to require Appellant to answer the question posed-whether Arlene lied 

during her testimony~ We condemn this practice especially in this case 

because the Appellant was being placed in the unsavory position of calling his 

·own mother a liar. However, we cannot say that this error dses to the level of 

manifest injustice, .nor is there any indication that the result would have been 

different had the contested .questioning not occurred. The Commonwealth 

presented significant evidence in support of its case. Arlene testified that the 

package her son received contained drugs. Sheriff Jim Guffey testified that he 

discovered the package containing methamphetamine in Appellant's bedroom. 

KSP Detective George Atwood testified about Appellant's cooperation in the 

sting operatfon to catch "Hector." As a result, Appellant confessed to the 

crime. 

At trial however, Appellant testified that the package did not belong to 

him. He stated that he did not open the package and did not know what was 

inside. Therefore, the prosecutor's contested que~tioriing was intended to 

rebut Appellant's defense-Le., that he was falsely accused. We have 

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previously held that such errors are not palpable. E.g., Newma,n v. 

Commonwealth, 366 S.W.3d 435, 442 (Ky. 2012). Similarly, there was no 

palpable error here. 

Conclusion 

For the foregoing reasons, we hereby affirm the judgment of the Clinton 

Circuit Court. 

All sitting. All concur. 

COUNSEL FOR·APPELLANT: 

Samuel N. Potter 

Department of Public Advocacy 

COUNSEL FOR APPELLEE:· 

Andy Beshear 

Attorney General of Kentucky 

Bryan Darwin Morrow 

Assistant Attorney General 

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