¶1DISSENTING:
¶2I respectfully dissent.
¶3Nothing is more troublesome to a prosecution’s case and the ends of justice than a surprising, untruthful alibi witness. Especially in combination with the defendant’s own testimony. Recognizing this, a majority of states require notice from the defense to the Commonwealth of the identities of any such witnesses. An alibi witness notice provision has even been adopted in the Federal Rules of Criminal Procedure through Rule 12.01.
¶4Kentucky is in the minority in not having a witness notice requirement. Our prosecutors .usually have the alibi witness sprung upon .him or her cold at trial. No time to have checked the reputation of the witness. No time to find that the witness professed to investigators they knew nothing about the crime. No time to prepare for any useful cross-examination. So, the flab-footed prosecutor must revert to his quick wit and own trial savvy instincts for his cross-examination. One of the few effective tools of a prosecutor in cross-examining an alibi witness, be it the defendant or another person, is common sense. If a mother knows that her son was home with her the night of the alleged crime, she is not going to wait till the trial date to say so. She will be at the courthouse demanding to be heard by the sheriff, prosecutor, the judge, or anybody. It is, if valid, the first claim asserted by a person falsely accused.
¶5While this case centers primarily upon the alibi testimony of the Appellant, it spins off of KRE 801A(b)(2) which pertains to all witnesses in a criminal trial. By deciding this case. today under that rule, the majority effectively strips from the prosecutor one of its key weapons in coping with surprise.
¶6Of course, the criminal defendant has 6th Amendment rights to remain silent when being interrogated and therefore cannot be questioned about failure to assert an alibi. However, in this case the Appellant was Mirandized when first questioned by the police. He knowingly waived his right not to make a statement. In doing so, he also waived all attending privileges which- have been determined by judicial decisions, including either his silence in response to certain questions or failure to assert certain obvious defenses. , .
¶7The majority correctly acknowledges this fact by moving quickly past the constitutional question. However, I respectfully submit that the majority totally mischarac-terizes the issue as one involving the evi-dentiary rule of “adoptive admission” under KRE 801A(b)(2). This has nothing to do with inconsistent statements. It has nothing -to do with statements at all except as a means to an end. It has to do with what action the Appellant took, or didn’t *424take, once he learned of the date of the crime.
¶8This is not a case about an inconsistent statement. It is a case about inconsistent conduct.
¶9First of all,' after reviewing the trial record, I must take issue with the standard of review. The Appellant did not lodge his objection to evidence being introduced as to the interview of August 11, 2011, at which time the Appellant may not have known the date of the alleged wrong. Appellant’s counsel objécted to the evidence of the failure of the Appellant to report his alibi over the months between that date and trial. In stating this objection, counsel states that once Appellant had counsel appointed, it was the responsibility, even duty, of the defense lawyer to speak for the Appellant. Therefore, his client is- being held responsible for the acts or inaction of his lawyer—breach of the right of confidentiality between counsel and client. There does not seem to be a narrowing of the complaint to the interview of August 11, 2011, and questioning by the detective. Therefore, I would submit the standard is a palpable error standard, not a harmless error examination.
¶10It’s important that we place the issue in full context within the trial itself. First of all, the Appellant comes forth with the alibi defense. 'He, himself, raised the issue with the witness Clifford Hutchison. Mr. Hutchison was a prosecutor’s worst nightmare. He appeared as a decent, honest witness who stated that the Appellant was with him in Indiana, one hour and twenty minutes away, until after midnight of the date of the crime. He had good reference point because of the date being July 4th with fireworks and celebration.
¶11The testimony of Mr. Hutchison took place at trial on November 20, 2012, sixteen months after the date of the crime— July. 4, 2011. This is apparently the first time the Commonwealth had heard of the alibi.
¶12The exchange between the Appellant and cross-examination by the prosecutor which draws the ire of the majority bears repeating here.
¶13Significantly, it spins off the testimony of Clifford Hutchison, the alibi witness.
Prosecutor: Mr. Cunningham, we were discussing a little earlier, about a witness that was here today, Mr. Hutchi-son.
Appellant: Yes, ma’am.
Prosecutor: And did you ever tell law enforcement about Mr. Hutchison? (emphasis added)
Appellant: No, ma’am.
Prosecutor: So you never told law enforcement that you were with Mr. Hutchinson [sic] on July 4, 2011. Appellant: No, ma’am.
¶14It was a tactical attempt to try to minimize or discredit the unannounced alibi testimony of Hutchison. This exchange did not necessarily pei^tain to the statement taken from Appellant on August 11, at which time he did not know the date he was being charged with committing the crimes. So, it had' nothing to do with silence at that interview or adoption by silence or anything pertaining to KRE 801A(b)(2). The prosecution was simply attacking the credibility by exposing the Appellant’s inaction. This cross-examination tactic is a close relative of the “delayed reporting” in rape cases by the victim.
¶15It is brought together in the Commonwealth’s closing argument reported in the majority opinion. “The first thing I would like for you to think about is 15 months. Why 15 months? That is how long it took for this defendant to tell law enforcement he had somebody that could clear him of these charges.” (Incidentally, the majority emphasizes this argument as major error, but counsel for Appellant neither objected *425to it at the time, nor requested an admonition.)
¶16It is a fair argument. It was a needed question to raise in light of the testimony of the independent alibi witness, Mr. Hutchison. I emphasize that it was the lack of action, not the silence at the interview, that was at the heart of this whole approach by the Commonwealth.
¶17If this case had been prosecuted in Indiana or Ohio or a majority of other states, there would have been no witness Hutchison in this case. There would have been no alibi witness allowed in this case. Or at least they would not have been a surprise to the prosecutor. The Commonwealth Attorney would not have to confront this issue flat-footed on the day of trial because the Appellant would have been required to give notice.
¶18Surely, there is no error in this case. There is certainly not sufficient error to affect the “substantial rights” of the Appellant. More importantly, • as !to what I would submit is the proper standard, there is no palpable error of a manifest injustice.
¶19Therefore, I respectfully dissent.