# IMPORTANT NOTICE NOT 

# ·yo BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOTTOBE PUBLISHED." PURSUANT TO THE RULES OF CIVILPROCEDURE PROMULGATED BY THE SUPREME COURT, CR76.28(4)(C), THIS OPINIONISNOT TO BE PUBLISHED AND SHALLNOT BE CITED ORUSED AS BINDING PRECEDENT INANY OTHER CASE INANY COURT OF THIS STATE; HOWEVER,
_ UNPUBLISHED KENTUCKYJ\PPELLATE DECISIONS, RENDERED AFTERJANUARY 1, 2003, MAY BE CITED FOR CONSIDERATIONBY THE COURT IF THERE IS NO PUBLISHED OPINIONTHATWOULD ADEQUATELYADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FORCONSIDERATION BY THE COURT SHALL BE SET OUTAS AN UNPUBLISHED DECISIONINTHEFILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITHTHE DOCUMENT TO THE COURTAND ALL PARTIES TO THE ACTION.RENDERED: FEBRUARY 15, 2018 NOT TO BE PUBLISHED

# ~upumt filnutf nf

# M~**~**

# l

2017-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, BrotherTed Burchett. Bro. Burchett anq Arlene then informed the police thatAppellant was in possession ofdrugs. While searchingArlene's residence, investigating officers discovered nearly a pound ofmethamphetamine 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 ofthe 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 ofthe deal immediately before KSP was scheduled to contact Hector. Appellant was tried and convicted by a Clinton County Circuit Courtjury offirst-degree trafficking in a controlled substance (TICS), and for being a second-degree persistent felony offender (PFO). Thejuryrecommended a total sentence oftwentyyears' imprisonment, which was imposed by the trial court. Appellant now appeals hisjudgment and sentence as a matter ofright pursuant to§ 110(2)(b) ofthe 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 afterAppellant's testimony directly contradictedArlene's testimony. The prosecutor asked him twice whetherArlene lied. Each time, Appellant provided
an evasive response. Thejudge instructed Appellant to answer the question. Appellant stated thatArlene made a "mistake" and that she testified falsely to protect his sister. Appellant failed to oqject to this line ofquestioning and thejudge's instruction to answer the question. Because this issue was not properly 2preserved, 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 ofanother 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-whetherArlene lied during her**testimony~** We condemn this practice especially in this case because the Appellantwas being placed in the unsavory position ofcalling 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 ofits case. Arlene testified that the package her son received contained drugs. SheriffJim Guffey testified that he discovered the package containing methamphetamine in Appellant's bedroom. KSP Detective George Atwood testified aboutAppellant'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 rebutAppellant's defense-Le., that he was falsely accused. We have 3previously 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 thejudgment ofthe Clinton Circuit Court. All sitting. All concur.

COUNSEL FOR·APPELLANT: Samuel N. Potter Department ofPublic Advocacy

COUNSEL FORAPPELLEE:· Andy Beshear Attorney General ofKentucky Bryan Darwin Morrow AssistantAttorney General

4