## Facts

- Noah Hicks, Erroll Rogers, and two other coconspirators robbed Carroll Garvey, tied him up, placed him in the trunk of a car, and drove around for about two hours.
- Garvey escaped from the trunk but was shot once as he ran away.
- Garvey identified his attackers to police, specifically naming Hicks and Rogers as responsible for his injuries.
- Police executed a warrant to search Hicks’s home; during the search, Hicks told officers the gun was at Rogers’s house, where police recovered it.
- Hicks gave a statement admitting he helped tie up Garvey, helped place him in the trunk, held the gun when Garvey got out, and fired it as Garvey ran away.
- The Commonwealth tried Hicks, Rogers, and another coconspirator together.
- In his defense, Hicks called inmate Ryan Spence, who had met Hicks and Rogers in jail or prison.
- Spence testified that when other inmates asked Rogers what he had done, Rogers said he “shot an Asian kid and put him in the trunk.”
- On cross-examination, the prosecutor asked Spence to show the jury a swastika tattoo on his arm. Spence initially refused.
- Outside the jury’s presence, the prosecutor argued the tattoo was relevant to Spence’s credibility because racial bias could have motivated Spence (white) to incriminate Rogers (African American) instead of Hicks (white).
- Hicks argued the tattoo alone did not establish racism and that requiring its display would unfairly prejudice the defense.
- The trial judge ordered Spence to show the tattoo and admonished the jury to consider it only as bearing on Spence’s credibility for “testimony that appears to be non-favorable to an African-American.”
- Spence’s cellmate also testified that Hicks had offered to pay the cellmate and Spence for their testimony.
- The jury convicted Hicks of kidnapping with serious physical injury, robbery, and first-degree assault with a deadly weapon.

## Issues

1. Did the trial court err by compelling defense witness Ryan Spence to display a swastika tattoo to the jury as impeachment evidence of possible racial bias affecting his credibility?
2. Was the tattoo evidence excludable because any probative value on bias and credibility was substantially outweighed by the danger of unfair prejudice?
3. If admitting the tattoo evidence was error, did it require reversal or was it harmless in light of the other proof?

## Decision

- The Supreme Court of Kentucky affirmed Hicks’s convictions.
- The court held the trial court acted within its discretion by allowing the Commonwealth to use the tattoo to show possible bias affecting Spence’s credibility.
- The court concluded that the limiting admonition reduced the risk that the jury would misuse the evidence.
- The court further indicated that, given the strength of the Commonwealth’s evidence and other impeachment of Spence, any error in admitting the tattoo would not justify reversal.

## Legal Principles

- A party may impeach a witness by showing bias, including racial bias, because bias bears directly on credibility.
- Evidence need not conclusively prove bias to be relevant; it is enough that it tends to make a fact about credibility (such as possible prejudice) more likely than it would be without the evidence.
- Trial courts have discretion to admit impeachment evidence and to balance probative value against the risk of unfair prejudice.
- A limiting instruction may confine the jury’s consideration of inflammatory impeachment evidence to a proper purpose (such as credibility), reducing the risk of misuse.
- Even if an evidentiary ruling is mistaken, a conviction will stand when the remaining evidence of guilt is strong and the challenged evidence did not affect substantial rights.

## Conclusion

In *Hicks v. Commonwealth of Kentucky*, the Kentucky Supreme Court upheld convictions for kidnapping, robbery, and first-degree assault, ruling that the Commonwealth could impeach a defense inmate-witness by requiring him to display a swastika tattoo as circumstantial proof of possible racial bias against an African American codefendant, especially where the jury received a limiting admonition and the case against Hicks included the victim’s identification, Hicks’s admissions, and additional impeachment evidence.


Hicks v. Commonwealth of Kentucky, 2009 WL 3526699 (2009)