CONCURRING IN‘RESULT:
I applaud the Majority in upholding the conviction in this case. I write separately to concur in the result. I respectfully disagree with some, but certainly not all, of Justice Noble’s well written opinion."
I do not believe the impeachment attempts of the witness Brad Saulsberry by the Commonwealth Attorney to be error. I write to respectfully protest’the criticism of the prosecutor by the Majority.
Former Chief Justice John Palmore spoke eloquently to the highly important role of the Commonwealth Attorney in our criminal justice system. Niemeyer v. Commonwealth, 533 S.W.2d 218, 222 (Ky.1976). The majority opinion is impervious to the broad duties of this office, which extend in unique ways, outside the court room.
It is fair to -say that every day, somewhere in this state, a prosecutor receives a request from someone to talk to him or her about important information dealing with crimes and criminal prosecution.' Most times the request is in writing. More often than not it comes from inmates in jail or prison.
It is derelict for that prosecutor not to oblige the request, either personally or by a representative. The conversations most of the time prove futile. But, sometimes the information may solve a crime, or aid a prosecution. Information can sometimes protect a life. It is typical, if not the norm, for the person to insist on seeing the prosecutor alone. They are distrustful of others in the system. I.perceive there to be a lack of understanding between the majority opinion and .reality. The prosecutor does not always have the option of bringing a third- party witness-to the conversation.
Witness Brad Saulsberry requested to talk to the Commonwealth-Attorney. He provided evidence of hearing the Appellant engaged in a conversation with another inmate where he made admissions of guilt. Saulsberry even signed a statement to that effect. He reaffirmed this information the day before trial. The written statement was provided to the defense, and . the lawyer for the Appellant actually-interviewed witness Saulsberry before trial. ■
The Commonwealth Attorney did his duty" and called' Saulsberry as a witness. He was not an articulate and concise witness. He “waffled.” The definition of “waffled” is to “talk foolishly.” (Webster’s New .Collegiate Dictionary 1973 G. & C. Merriam Co.). 'The. term aptly fits this case because it was not so much that the witness contradicted his previous statement, but he even contradicted himself in his own erratic testimony at trial.- One almost gets a headache watching his testimony. To giye Saulsberry credit, he was more creative than most. He did say at times that McIntosh made the statement, then kept coming back to “they were talking.” ‘ Of course, this is a “foolish” prattle, because McIntosh was not involved in the crime at all and would have -no reason to be stating anything as to what happened. (Incidentally,⅛ this raises serious questions whether, the statements assigned to McIntosh were even hearsay since what McIntosh said could- not possibly have been *25“offered in evidence to prove the truth of the matter asserted.” KRE 801(c));
KRE 613 allows impeachment of any witness through the use of a prior statement as long as the time (June) and place (court room) of the statement is provided to the witness and “when the impeaching party has acted in good faith.” There is no question of good faith here, as evidenced by the signed statement of the witness. The term “good faith” is very telling. That has always been the guiding star for trial lawyers impeaching witnesses by prior statements. That is the protection against unscrupulous and dishonest lawyers from making up prior statements and getting it before the jury in their own words. As long as there is “good faith” that such prior statements were actually made, the proper impeachment method should be known by all good trial lawyers.
The esteemed professor Robert G. Lawson states that “[o]ne of the oldest and most frequently used of all credibility rules is that a witness may be impeached with evidence that he/she had earlier made statements that are inconsistent with testimony given at trial.” See Robert G. Lawson, The Kentucky Evidence Law Handbook § 4.15[1][a], at 297 (5th ed., 2013). How can the foundation for a prior inconsistent statement be laid without the impeaching attorney stating the previous statement to the witness? That was exactly what the prosecutor did in this case. And the witness, unlike in Holt, admitted that he made it.
Saulsberry — in his rambling and disjointed manner — admitted that the Appellant was the one engaged in the conversation and made the incriminating evidence. The Majority erroneously treats the foundation questions of impeachment by the Commonwealth as “testimony” by the prosecutor. That could be said of many leading questions on cross examination.
In the landmark impeachment case of Jett v. Commonwealth, 436 S.W.2d 788 (Ky.App.1969), the prosecutor- asked the witness if she had not told the sheriff “that your husband, Tex Jett, was fooling around with or taking advantage of your sister?” Surely this was not considered testimony by the Commonwealth Attorney as to what the sheriff would say. It was a necessary foundation inquiry for impeachment purposes, the same as the questions by the Commonwealth Attorney in this case.
A proper foundation for impeachment requires more than just asking if the witness made a prior statement. This Court has held that the foundation for impeachment is inadequate unless an inquiry about the contents of the specifics of that statement is made. Fisher v. Duckworth, 738 S.W.2d 810 (Ky.1987). Again, we are criticizing the Commonwealth Attorney in this case for doing exactly what we have required for a proper foundation. What the Majority has done today with its rationale is to strip the prosecutor of the ability to impeach a witness, sinlply because the statement was made to the prosecutor alone. Thus,' we have seriously undermined a valuable safeguard of truth. ■
The Majority ignores the big distinction in this cáse and Holt. In that case, the witness never admitted making thé prior statement as Saulsberry' did here. That distinction is critical for two reasons. First, it was. not the prosecutor testifying but, finally, the witness. And secondly, it explains why the prosecutor did not introduce the prior statement. The prosecutor no doubt perceived — as I ‘do in viewing that testimony — that the confusing witness admitted making the statement. Furthermore, the witness admitted to the essence of the statement in his own circumlocutory testimony to what was in the statement. Remember, Saulsberry ended up stating,
*26“I heard Dillon saying the same thing McIntosh was saying.” Was the essence of his testimony inconsistent with his prior statement? Probably not. At least the prosecutor didn’t think so. It is hornbook law that an out of court statement-is not admissible to impeach testimony when it is not inconsistent with the trial testimony. Dennis v. Commonwealth) 526 S.W.2d 8 (Ky.App.1975). Certainly there was no need, nor a basis, for the Commonwealth Attorney to be sworn as a witness.
Recognizing the bright minds and excellent scholarship of my brothers and sisters, I must respectfully disagree that their analysis “has been the law in Kentucky. for 125 years.”,. That statement is simply inaccurate.. We have essentially made up this new rule out of whole cloth in Holt. The centerpiece case of. the 1888 Cook case is not about impeachment at all, The Majority admits this fact, but inexplicably asserts that, distinction “misses the point.”
It doesn’t miss the point at all. In Cook, the witness had already finished testifying and was asking the judge for his witness fee. The testimony was over. Piqued by the evasive testimony the witness- had given the Commonwealth Attorney, he stood up in front of the judge and jury and gratuitously and without any semblance of procedural necessity declared what the witness had said on a prior occasion. But here, when the witness was on the stand testifying, foundational rules for impeachment require, the cross-examining lawyer to relate to the witness in the presence of the. jury the content of the prior statement. Impeachment is not only just “the point,” it creates the gaping, abyss between Cook and this case.
. Again, I commend the Majority for finding there was .no palpable error in this case. I write simply to state that the prosecutor’s treatment of the strange testimony of Saulsberry, was not error at all. For that reason, I concur in result .only.
Barber and Keller, JJ., join.