WOODSIDE v. COMMONWEALTH (2024)

Brandon Woodside was convicted by a Hardin County jury of burglary in the first degree and being a persistent felony offender in the first degree (PFO I). He was sentenced to twenty (20) years in prison. Woodside brings one issue on appeal. He claims that the trial court improperly limited his cross examination of the victim. Upon review, we affirm the Hardin Circuit Court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Woodside broke into an occupied motel room in Elizabethtown, Kentucky, by kicking down a door, and after inside, assaulted its occupant, Marvin. The victim, the perpetrator, and a witness provided consistent testimony about Woodside's entry into the motel room, his actions taken to exit the room, and his actions after leaving the room. Woodside's defense at trial was voluntary intoxication and he received an intoxication instruction.

According to trial testimony, on May 9, 2022, Marvin was working in central Kentucky and was staying at an Elizabethtown motel. Woodside knocked at his door, Marvin opened the door, and Woodside asked to use Marvin's phone. Because Marvin had seen Woodside and a female looking through the motel dumpster earlier, he feared Woodside was trying to rob him. Marvin declined to let Woodside use his phone, telling Woodside that he was currently talking to his wife on the phone.

Woodside left but after a couple of minutes Marvin heard more knocking on the door. Marvin did not answer the door and the knocking got progressively louder. Eventually, Marvin heard kicking against the door. The kicking became so violent that the door frame broke and the door opened. According to Marvin, Woodside rushed into the room. Marvin defended himself as Woodside punched and kicked him. Marvin sustained injuries to his face, head, and shoulder.

While defending himself, Marvin grabbed the base of a blender and hit Woodside in the head. Marvin then ran out of the motel room and closed and held the door so Woodside could not follow him. Marvin yelled at two nearby motel patrons for help, but they did not immediately respond. While Marvin was holding the door, Woodside, using a piece of wood from the door frame, broke out the window next to the door. Marvin ran to the motel office and told them to call the police. Woodside fled the scene and was chased by the two bystanders.

Richardson, one of the bystanders, also testified at trial. Richardson testified that he was staying at the motel about five or six rooms down from Marvin. Richardson and his son were outside smoking when he witnessed Woodside knock and Marvin answer the door. Richardson also witnessed Woodside walk away from the door but then return and begin knocking on the door again. Marvin did not answer the door and Woodside kicked it until it opened.

After Woodside entered the room, Richardson heard Marvin screaming before exiting the room covered in blood. Marvin yelled something in Richardson's direction. Richardson also witnessed Woodside break out the window and Marvin run to the motel office. Richardson and his son chased Woodside and within moments the police arrived. Richardson stated that despite being outside during the entire time, before this occurred, Woodside never asked him to use his phone.

Woodside testified about his history of drug use and his use of methamphetamine prior to entering the motel room and assaulting Marvin. Woodside, raised in Louisville, was in Elizabethtown after being released from prison and placed at an addiction recovery center. Within a few days of being placed there, he used methamphetamine. After program directors told Woodside he would be kicked out of the program for drug use, Woodside finished off his remaining methamphetamine and left the recovery center. He became concerned about getting a phone because he wanted to go back to Louisville and was worried that he would be stuck in Elizabethtown.

Woodside explained that the methamphetamine started to “mess” with him and he experienced omens of his coming death. He also stated that he met a girl in the motel parking lot. Woodside testified that the girl told him that people were going to bury him alive in a ritual and that she had protected him the night before, but if he did not get out of town or off the streets, she could not protect him that night. Woodside said the girl did not have a phone but kept telling him that he needed to get a phone or a room. He tried to get a room but the motel staff told him to leave. Woodside wanted to call family for help.

Woodside testified that he knocked on Marvin's door. After Marvin told him to go away, Woodside thought maybe Marvin would let him use the landline so he knocked several times, getting louder each time. Woodside testified that he thought Marvin told him to kick the door. Woodside turned around, kicked the door down, and stumbled into the room. Woodside stated that to the best of his recollection, Marvin threw the first punch and the two fought and then fell to the ground. Woodside testified that he kicked Marvin, and then Marvin ran out of the room and called for help. Woodside also testified that he was able to get out of the room and run down the street with two men following saying the cops were coming. When the police arrived, Woodside had a small cut on the side of his head and a larger laceration on the back of his head. The police officer testified that Woodside appeared intoxicated but was cooperative.

After the jury found Woodside guilty of the crimes as charged, it recommended Woodside serve ten years for committing burglary and then a PFO I enhancement to his prison sentence of an additional ten years. The trial court sentenced Woodside to a total of twenty years and this appeal follows. Additional facts pertinent to Woodside's claim on appeal are set forth below.

ANALYSIS

Woodside argues that the trial court erred by limiting cross-examination of the victim, an undocumented immigrant, regarding his bias and credibility. More particularly, Woodside complains the trial court erroneously limited his ability to effectively cross-examine or question Marvin outside the jury's presence about immigration related issues. Woodside's primary complaint is that he was not allowed to question the victim about his knowledge of or efforts to obtain U nonimmigrant status, also known as U visa, which would relate to his bias and motivation when testifying as the victim. Woodside's other complaint, which is unpreserved, is that he was not allowed to probe the victim to determine if there were specific instances of dishonest conduct related to his immigration status which could be used to attack the victim's credibility.

To put the U visa trial and appellate arguments in context, we begin with a brief description of the U visa program and the application process.

With the passage of the Victims of Trafficking and Violence Protection Act of 2000, Public Law 106-386, 114 Stat. 1464 (2000), Congress created a new nonimmigrant ¹ visa classification to aid in the prosecution of crimes against aliens. See Pub. L. No. 106-386 § 1513(a)(2).² The classification, defined in 8 U.S.C.³ § 1101(a)(15)(U) (2000), is commonly referred to as U visa.⁴

U visa approval is dependent upon four criteria being met. The criteria are: the victim (1) has suffered substantial physical or mental abuse as a result of having been a victim of qualifying criminal activity, 8 U.S.C. § 1101(a)(15)(U)(i)(I);⁵ 8 U.S.C. § 1101(a)(15)(U)(iii);⁶ (2) possesses information concerning the criminal activity, 8 U.S.C. § 1101(a)(15)(U)(i)(II);⁷ (3) has been helpful, is being helpful, or is likely to be helpful to a Federal, State, or local law enforcement official, to a Federal, State, or local prosecutor, to a Federal or State judge, to the Immigration and Naturalization Service of the Department of Justice, or to other Federal, State, or local authorities investigating or prosecuting the criminal activity, 8 U.S.C. § 1101(a)(15)(U)(i)(III);⁸ and (4) the criminal activity violated the laws of the United States or occurred in the United States or the territories and possessions of the United States, 8 U.S.C. § 1101(a)(15)(U)(i)(IV).

The U visa, if approved, provides the crime victim with temporary immigration status, initially up to four years, including work authorization. See 8 U.S.C. § 1184(p)(6) (2020),⁹ 8 U.S.C. § 1184(p)(3)(B).¹⁰ An approved U visa may also result in temporary immigration status for qualifying family members of the victim, 8 U.S.C.A § 1101(a)(15)(U)(ii), and the possibility of lawful permanent resident status, 8 U.S.C. § 1255(m)(1)(A). The victim may also be granted work authorization pending approval of the application. 8 U.S.C. § 1184(p)(6). Benefits may be revoked if an applicant fails to assist in the investigation and prosecution of criminal activity. See 8 C.F.R. § 214.14(h)(2)(i)(A).

The petition for the U visa is made to U.S. Citizenship and Immigration Services. 8 C.F.R. § 214.14(c)(1). In addition to the Petition for U Nonimmigrant Status, Form I-918, being completed by the applicant, the U Nonimmigrant Status Certification, Form I-918 Supplement B, must be completed by a certifying agency, “a Federal, State, or local law enforcement agency, prosecutor, judge, or other authority, that has responsibility for the investigation or prosecution of a qualifying crime or criminal activity.” 8 C.F.R. § 214.14(a)(2); see 8 U.S.C. § 1184(p)(1). The supplement must be “signed by a certifying official within the six months immediately preceding the filing of Form I-918.” 8 C.F.R. § 214.14(c)(2)(i). Pertinently, the certification must state that the applicant meets the four eligibility criteria. See 8 C.F.R. § 214.14(c)(2)(i).

Before examination of witnesses began on January 12, 2023, the Commonwealth moved the trial court to preclude the defense from inquiring into the victim's immigration status.¹¹ The Commonwealth reviewed the U visa requirements and application process. The Commonwealth cited Romero-Perez v. Commonwealth, 492 S.W.3d 902 (Ky. App. 2016), and cases from other jurisdictions to support its argument that Marvin's immigration status would not be relevant evidence as to whether the burglary occurred. However, if like the witness in Romero-Perez, Marvin had the potential to receive an immigration status benefit through the U visa program because of his testimony, receipt of that benefit would be relevant as it would pertain to bias. Nevertheless, the Commonwealth had no evidence that Marvin was a U visa applicant, a status which the Commonwealth believed Marvin would be aware, and the prosecutor himself had not signed off on the required certification. Furthermore, the Commonwealth did not believe that Marvin would qualify for the program because burglary was not listed as a qualifying crime and because at most, Marvin's level of assault would be misdemeanor assault in the fourth degree,¹² not the qualifying crime of felonious assault.¹³

The defense objected, pointing to a difference between the Romero-Perez case and Woodside's case. In Romero-Perez, the trial judge had the defendant's U visa application in hand but had not signed it because the case was still pending, and the judge was concerned that if the application were signed before trial, the witness would not appear to testify. Romero-Perez, 492 S.W.3d at 904. Here, on the other hand, defense counsel did not know any facts regarding whether Marvin had made a U visa application. Defense counsel stated she would like to hear under oath if Marvin had applied for a U visa, if he tried to apply, if he thinks he could apply when this trial was over, his impression of the U visa, and if anyone from the Commonwealth or law enforcement had spoken to Marvin about the program. Defense counsel argued that without such information, which was not in discovery, it could not be determined if the U visa was relevant to Marvin's testimony. The defense asked the trial court, if it were uncomfortable with the unknowns, to allow questioning of Marvin outside of the jury due to the uncertainty of Marvin's responses. Defense counsel argued that without relevant information the defense could not fully formulate its argument or formulate a nonspeculative cross-examination based on accurate information. Defense counsel further argued that even if the U visa program were not applicable to Marvin, with Marvin being an undocumented resident, his continuous lie about his citizenship was a perpetual falsehood, and relevant to Marvin's credibility as a witness.

The trial court ruled in part for each party. The trial court ruled that questioning of Marvin's immigration status alone was irrelevant. However, like with other Commonwealth witnesses, the defense was allowed to ask Marvin if he was receiving any benefit for his testimony, and then, in accordance with Romero-Perez, if Marvin responded “yes,” defense counsel could delve into the benefit and its implications for his immigration status. But if Marvin responded “no,” defense counsel was to move on because there was no evidence that Marvin was receiving a U visa benefit or otherwise which would serve as a basis for impeachment. Marvin testified that he had not received any benefit related to his participation in this case.

Woodside specifically complains that there were questions about benefits and immigration status that were unknown to the parties, and when the court did not grant the defense's request to inquire further about his status, this foreclosed the defense's ability to question Marvin about any changes to his immigration status during the pendency of the case, about any discussions with other agencies about changes to his status as a result of the incident, or about any threats made against him to negatively affect his status if he did not cooperate such as deportation. Woodside further argues that he was not allowed to question Marvin about his immigration status which would have exposed some history of untruthfulness; and that if he had been allowed to ask the victim about his immigration status, he could have learned if the name he provided was his true identity and if he was denied a visa based on criminal behavior.

Woodside asserts that absent granting the defense's request to probe Marvin's bias and credibility during trial, the court should have granted its request for a hearing outside the jury's presence to determine if there were issues relevant to bias and credibility as it related to Marvin's immigration status and crimes of dishonesty. Woodside offers that the questions could have been asked confidentially, protecting the victim from potential prejudice unless something relevant was gleaned from the questioning.

The Sixth Amendment's Confrontation Clause provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right ․ to be confronted with the witnesses against him.” It is well recognized that witness credibility is always at issue, see Commonwealth v. Maddox, 955 S.W.2d 718, 721 (Ky. 1997) (citing Parsley v. Commonwealth, 306 S.W.2d 284 (Ky. 1957)), and “the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.” Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) (citation omitted). However, “[t]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985)). Insofar as the Confrontation Clause is concerned, trial courts “retain wide latitude ․ to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Van Arsdall, 475 U.S. at 679, 106 S.Ct. 1431.

In addition to the defendant's constitutional right to put in evidence any fact which might show bias on the part of a witness who has testified against him, see Adcock v. Commonwealth, 702 S.W.2d 440, 441 (Ky. 1986), subject to reasonable limits, the Kentucky Rules of Evidence (KRE) have similar provisions. Under the Rules, “[t]he credibility of a witness may be attacked by any party, including the party calling the witness,” KRE 607, and “[a] witness may be cross-examined on any matter relevant to any issue in the case, including credibility,” KRE 611(b). However, KRE 611(a) prescribes that the trial court “shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to, inter alia, make the interrogation and presentation effective for the ascertainment of the truth, KRE 611(a)(1), and protect witnesses from harassment or undue embarrassment, KRE 611(a)(3). “KRE 611 embodies the ‘wide open’ rule of cross-examination by allowing questioning as to any matter relevant to any issue in the case, subject to judicial discretion in the control of interrogation of witnesses and production of evidence.” Derossett v. Commonwealth, 867 S.W.2d 195, 198 (Ky. 1993) (emphasis original).

In addition to the trial judge's discretion under KRE 611, pertinent to this case, KRE 608 puts into context Woodside's argument that he should have been allowed to probe Marvin, either during trial or at a hearing outside the jury's presence, about misconduct related to his immigration status. KRE 608 sets parameters for cross-examination attacking a witness's credibility based on conduct that, while not constituting a criminal conviction, nevertheless bears on truthfulness or untruthfulness. Pertinently, KRE 608(b) limits the evidence to specific instances of conduct, limits admission of the evidence to the discretion of the trial court, and limits cross-examination to inquiries for which there is a factual basis. KRE 608(b) states:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in Rule 609 [pertaining to impeachment by evidence of a felony conviction], may not be proved by extrinsic evidence.[14] They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness: (1) concerning the witness’ character for truthfulness or untruthfulness ․ No specific instance of conduct of a witness may be the subject of inquiry under this provision unless the cross-examiner has a factual basis for the subject matter of his inquiry.

In accordance with KRE 608, this Court has stated: “While this Court has recognized the wide latitude afforded criminal defendants in conducting cross-examination, ‘a connection must be established between the cross-examination proposed to be undertaken and the facts in evidence.’ ” Davenport v. Commonwealth, 177 S.W.3d 763, 772 (Ky. 2005) (quoting Maddox, 955 S.W.2d at 721).

Woodside argues that he should have been able to question Marvin about the U visa program. He argues that even though the Commonwealth claimed that Marvin would not qualify for a U visa because the crime of burglary was not on the list of offenses for which one could apply for the program, the assault may have been a qualifying crime under the U visa program because the program covers felonious assault and “any similar activity.” However, because Woodside does not dissect the assault in this case in comparison and in contrast to the felonious assault defined in KRS 508.010, a Class B felony, and KRS 508.020, a Class C felony, in further support of its argument, we find this argument of limited persuasive value.¹⁵ It is not evident by looking at the elements of KRS 508.010 and KRS 508.020 that Marvin's uncharged assault would be declared a qualifying crime under the U visa program.

It is apparent that neither the Hardin County Commonwealth's Attorney nor the Hardin Circuit Court trial judge completed the U Nonimmigrant Status Certification. The record also does not reflect that another qualifying law enforcement authority, such as a federal agency, was involved in the prosecution of Woodside or would have served as the certifying agency. We must agree that it is unclear whether U.S. Citizenship and Immigration Services would have decided that the burglary or the assault suffered by Marvin was a qualifying crime if a certifying agency completed the required supplement and Marvin filed U visa Form I-918. Nevertheless, the trial court reasonably considered that even if the Commonwealth did not know whether Marvin had applied for U nonimmigrant status, if Marvin were a U visa applicant or participant, an associated benefit was relevant to Marvin's bias. In accordance with KRE 104(b),¹⁶ the trial court allowed Woodside to inquire whether Marvin was receiving a benefit for his testimony, and if so, then follow with relevant questions.

The trial court did not abuse its discretion (1) by limiting the U visa inquiry until the defense fulfilled the condition of fact or (2) by not holding a hearing outside the jury's presence so Woodside could determine whether he had made, was making, or intended to make the effort to obtain a benefit from the government for his testimony or whether he had engaged in specific instances of misconduct related to his immigration status. In general, credibility may only be questioned based upon facts in evidence, Davenport, 177 S.W.3d at 772. And as to Woodside's complaint that he was not allowed a hearing outside the jury's presence, we note that under KRE 608, the cross-examiner may not go on a “fishing expedition” in the hope of finding some misconduct. We do not view it as an abuse of discretion for the trial court to deny the same fishing expedition outside the presence of the jury either, especially under the circumstances of this case.

Notably, five months before trial, the defense served its ongoing request for constitutionally required disclosure of exculpatory material. The request apparently covered the information which the defense sought through trial examination or at a hearing outside the jury's presence to reveal Marvin's potential bias and credibility problems.¹⁷ The defense did not argue that the Commonwealth committed a Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), violation or did not comply with its requests for disclosure of information. And while defense counsel apparently did not conduct a conclusive pretrial investigation into Marvin, Woodside also did not file a post-trial motion alleging that he had, since trial, discovered evidence of the victim being offered a benefit for his testimony or specific instances of conduct probative of the victim's untruthfulness. Furthermore, the defense did not object to the motion in limine being untimely under Hardin Circuit Court Rule 4 or the trial court's orders setting motion deadlines. Thus, based upon the facts of this case, we cannot say that the trial judge did not allow a reasonably complete picture of Marvin's veracity, bias and motivation for testifying to be developed. So long as that occurs, “the judge enjoys power and discretion to set appropriate boundaries.” Maddox, 955 S.W.2d at 721 (quoting U.S. v. Boylan, 898 F.2d 230, 254 (1st Cir. 1990)).

CONCLUSION

For the foregoing reasons, the Hardin Circuit Court's judgment is affirmed.

FOOTNOTES

1.   A noncitizen who is admitted to the United States for a specific temporary period of time. See Immigration and Nationality Act of 1952, Pub. L. No. 414 § 101(a)(15), 66 Stat. 278 (1952).

2.   One purpose of the U visa classification is to:strengthen the ability of law enforcement agencies to detect, investigate, and prosecute cases of domestic violence, sexual assault, trafficking of aliens, and other crimes described in section 101(a)(15)(U)(iii) of the Immigration and Nationality Act committed against aliens, while offering protection to victims of such offenses in keeping with the humanitarian interests of the United States.Pub. L. No. 106-386 § 1513(a)(2)(A). “It also gives law enforcement officials a means to regularize the status of cooperating individuals during investigations or prosecutions.” Id. at § 1513(a)(2)(B).

3.   United States Code.

4.   See U.S. Citizenship and Immigration Services, Victims of Criminal Activity: U Nonimmigrant Status, https://www.uscis.gov/humanitarian/victims-of-criminal-activity-unonimmigrant-status (last accessed Aug. 27, 2024).

5.   8 C.F.R. (Code of Federal Regulations) § 214.14(b)(1) states:Whether abuse is substantial is based on a number of factors, including but not limited to: The nature of the injury inflicted or suffered; the severity of the perpetrator's conduct; the severity of the harm suffered; the duration of the infliction of the harm; and the extent to which there is permanent or serious harm to the appearance, health, or physical or mental soundness of the victim, including aggravation of pre-existing conditions. No single factor is a prerequisite to establish that the abuse suffered was substantial. Also, the existence of one or more of the factors automatically does not create a presumption that the abuse suffered was substantial. A series of acts taken together may be considered to constitute substantial physical or mental abuse even where no single act alone rises to that level.

6.   Under 8 U.S.C. § 1101(a)(15)(U)(iii), qualifying criminal activities are “one or more of the following or any similar activity in violation of Federal, State, or local criminal law:” (1) abduction; (2) abusive sexual contact; (3) being held hostage; (4) blackmail; (5) domestic violence; (6) extortion; (7) false imprisonment; (8) felonious assault; (9) female genital mutilation; (10) fraud in foreign labor contracting (as defined in section 1351 of title 18); (11) incest; (12) involuntary servitude; (13) kidnapping; (14) manslaughter; (15) murder; (16) obstruction of justice; (17) peonage; (18) perjury; (19) prostitution; (20) rape; (21) sexual assault; (22) sexual exploitation; (23) slave trade; (24) stalking, (25) torture; (26) trafficking; (27) witness tampering; (28) unlawful criminal restraint; or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes.

7.   8 C.F.R. § 214.14(b)(2) describes this requirement, in pertinent part, as:The alien possesses credible and reliable information establishing that he or she has knowledge of the details concerning the qualifying criminal activity upon which his or her petition is based. The alien must possess specific facts regarding the criminal activity leading a certifying official to determine that the petitioner has, is, or is likely to provide assistance to the investigation or prosecution of the qualifying criminal activity.

8.   8 C.F.R. § 214.14(b)(3) describes this requirement, in pertinent part, as:The alien has been helpful, is being helpful, or is likely to be helpful to a certifying agency in the investigation or prosecution of the qualifying criminal activity upon which his or her petition is based, and since the initiation of cooperation, has not refused or failed to provide information and assistance reasonably requested.

9.   8 U.S.C. § 1184(p)(6) states in full:The authorized period of status of an alien as a nonimmigrant under section 1101(a)(15)(U) of this title shall be for a period of not more than 4 years, but shall be extended upon certification from a Federal, State, or local law enforcement official, prosecutor, judge, or other Federal, State, or local authority investigating or prosecuting criminal activity described in section 1101(a)(15)(U)(iii) of this title that the alien's presence in the United States is required to assist in the investigation or prosecution of such criminal activity. The Secretary of Homeland Security may extend, beyond the 4-year period authorized under this section, the authorized period of status of an alien as a nonimmigrant under section 1101(a)(15)(U) of this title if the Secretary determines that an extension of such period is warranted due to exceptional circumstances. Such alien's nonimmigrant status shall be extended beyond the 4-year period authorized under this section if the alien is eligible for relief under section 1255(m) of this title and is unable to obtain such relief because regulations have not been issued to implement such section and shall be extended during the pendency of an application for adjustment of status under section 1255(m) of this title. The Secretary may grant work authorization to any alien who has a pending, bona fide application for nonimmigrant status under section 1101(a)(15)(U) of this title.

10.   8 U.S.C. § 1184(p)(3)(b) states in full: “With respect to nonimmigrant aliens described in subsection (a)(15)(U) of section 1101 of this title-․ the Attorney General shall, during the period those aliens are in lawful temporary resident status under that subsection, provide the aliens with employment authorization.”

11.   The jury was empaneled the previous afternoon.

12.   KRS 508.030(1) states:A person is guilty of assault in the fourth degree when: (a) He intentionally or wantonly causes physical injury to another person; or (b) With recklessness he causes physical injury to another person by means of a deadly weapon or a dangerous instrument.

13.   The Commonwealth pointed out that in Romero-Perez, the U visa application was based upon domestic violence, a specifically listed qualifying crime, not the crime of burglary. See 492 S.W.3d at 907.

14.   Given that the rule does not allow proof of specific instances of conduct by extrinsic evidence, “counsel is limited to asking the witness about the specific instance of conduct on cross-examination and is stuck with whatever answer is given.” Allen v. Commonwealth, 395 S.W.3d 451, 462 (Ky. 2013).

15.   KRS 508.010(1) states:A person is guilty of assault in the first degree when: (a) He intentionally causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or (b) Under circumstances manifesting extreme indifference to the value of human life he wantonly engages in conduct which creates a grave risk of death to another and thereby causes serious physical injury to another person.KRS 508.020(1) states:A person is guilty of assault in the second degree when: (a) He intentionally causes serious physical injury to another person; or (b) He intentionally causes physical injury to another person by means of a deadly weapon or a dangerous instrument; or (c) He wantonly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument.

16.   KRE 104(b) states: When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

17.   Pertinently, on August 1, 2022, defense counsel served its ongoing request for constitutionally required disclosure of exculpatory material. Part of the request was for information in the possession of the Commonwealth, or known to the Commonwealth, or which the Commonwealth is charged with knowing which might fairly be termed “favorable,” including information which might be termed “favorable” in the sense that it might be fairly used by the defendant to impeach the credibility of any witness the government intends to call. The request stated more specifically that the defendant does not limit the request, inter alia, to:1) The nature and substance of any agreement, immunity promise or understanding between the government or any agent thereof, and any witness, relating to the witness's expected testimony, including but not limited to, understanding or agreements related to the pending or potential prosecutions.2) The nature and substance of any preferential treatment given at any time by any Commonwealth agent, whether or not in connection with this case, to any potential witness, including, but not limited to, letters from Commonwealth's or other law enforcement personnel to governmental agencies, state agencies, creditors, etc., setting out that witness's cooperation or status with the Commonwealth, and which letter or communication might fairly be said to have been an attempt to provide some benefit or help to the witness.3) Whether any witness ․ was on parole, probation, pretrial diversion, or conditional discharge for a felony, misdemeanor, or violation at the time the alleged offense occurred or during the pendency of this case.4) Prior conviction of witnesses, as well as any criminal charges, indictments, or information pending against prosecution witnesses.

OPINION OF THE COURT BY JUSTICE LAMBERT

All sitting. All concur.