dissenting.
Respectfully, I dissent. The Majority has painted a mural when, in effect, a single graphic painting would disclose neither prejudice nor prosecutorial misconduct occurred at the trial of this case.
At the end of the first day of trial, the prosecutor met with potential witness More-field and potential witness Grooms, who revealed that their testimony at trial would, in one part, contradict that which each gave to the Grand Jury. They were told if they testified truthfully and honestly to all of the questions, then, “I (the prosecutor) had no intention of taking criminal charges” — referring to perjury.
On the following day, Morefield took the stand as a prosecution witness and at a subsequent in-chambers hearing, the witness was advised of his right not to incriminate himself, but after being informed by the prosecution that it had no intention of taking criminal charges, the witness Morefield elected to continue his testimony.
The other witness, Grooms, was called by the defense and prior to her taking the stand, the trial court informed her, as it had informed Morefield, of the consequences of testifying. The prosecution informed her that no promises were being made, in fact, the exact words were:
MS. GROOMS: You did say yesterday that if I got up there and told the truth that you’d—
MR. KALTENBACH: I’m not making any promises.
THE COURT: Let me tell you something. He cannot tell you something that would keep the Commonwealth Attorney’s office from taking charges against you.
MS. GROOMS. Yes.
THE COURT: He may have in his own mind an intention not to do that.
MR. KALTENBACH: Which I don’t. I mean I do have — I’m not making that representation at all. I may well prosecute.
Further inquiry at the in-chambers hearing fully expanded the position of the prosecutor and the potential witness Grooms. Appellant’s attorney inquired — “Did Mr. Kalten-*296bach (the prosecutor) indicate to you yesterday that if you testified truthfully today that he wouldn’t prosecute you?” MRS. GROOM: “Yes, sir.” MR. KALTENBACH: “I told her yesterday, Tod, that I thought she was lying to me yesterday again.” Grooms thereafter decided not to testify and her testimony was offered by way of avowal.
Appellant’s complaint arises from the prosecutor’s offer not to prosecute its own witness, Morefield, and failing to do likewise for Grooms, a defense witness. Appellant’s reliance upon Workman v. Commonwealth, Ky., 580 S.W.2d 206 (1979) (overruled by Morton v. Commonwealth, Ky., 817 S.W.2d 218 [1991]), is seriously misplaced as that case involved an agreement with a defendant who detrimentally relied upon the Commonwealth’s promise. There is a significant distinction in this case for the promise, if it were any more than an intention, was distinctly made to witnesses who, alone, were potential prosecution witnesses.
The prosecutor’s out-of-court conversation with Grooms and Morefield appears to be in direct reference to them being called as Commonwealth witnesses. The Commonwealth’s case in chief was closed without calling Grooms and with the further proviso that the prosecutor thought Grooms was continuing to lie. The rationale in this case reflects that the fact-finding process could, in no wise, be deemed to have been distorted by the Commonwealth’s action, nor did any inquiry or questions raised by the trial court in order to ascertain that Grooms understood her Fifth Amendment right against self-incrimination constitute an abuse of discretion.
The Majority’s reliance upon Workman, supra, is misplaced. The great weight of authority in this country supports the principle that absent statutory or constitutional provisions to the contrary, a prosecutor has no inherent power to grant immunity to a witness in order to compel his testimony. The comments of the trial court (during the in-chambers hearings) emphasized these conditions to the potential witnesses. Workman, supra, actually offers no solace and the thrust of that opinion was that the government, as a promisor, will be required to perform its bargain once the promisee has relied on the promise and performed his or her part of the bargain. Commonwealth v. Brown, Ky., 619 S.W.2d 699 (1981).
Appellant claims that Grooms’ testimony was most significant because she was the only witness who heard the decedent say he was going to “whip” her. A simple comparison of Grooms’ avowal testimony with the testimony of both defense, and prosecution witnesses verifies that Grooms’ testimony was cumulative in nature and not exculpatory. While a criminal defendant may not compel the government to grant immunity to a witness, an exception has been recognized if the fact finding process is deemed to have been distorted, intentionally, by the government. An exception does not exist in this case. While Grooms’ testimony was relevant, there was an abundance of testimony by other witnesses that dispelled the argument that without Grooms’ testimony the fact-finding process was intentionally distorted by prosecutorial misconduct which denied a fair trial.
I would affirm the judgment of the trial court and the opinion of the Court of Appeals.
SPAIN and WINTERSHEIMER, JJ., join in this dissent.