Commonwealth of Kentucky v. Kendall Daugherty
This text of Commonwealth of Kentucky v. Kendall Daugherty (Commonwealth of Kentucky v. Kendall Daugherty) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
RENDERED: MAY 29, 2026; 10:00 A.M. TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0367-MR
COMMONWEALTH OF KENTUCKY APPELLANT
FROM MONTGOMERY CIRCUIT COURT v. HONORABLE DAVID A. BARBER, JUDGE ACTION NO. 24-CR-00079
KENDALL DAUGHERTY APPELLEE
AND
NO. 2025-CA-0752-MR
FROM MONTGOMERY CIRCUIT COURT v. HONORABLE DAVID A. BARBER, JUDGE ACTION NO. 24-CR-00079
KENDALL DAUGHERTY APPELLEE OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; CALDWELL AND A. JONES, JUDGES.
THOMPSON, CHIEF JUDGE: In this consolidated appeal, the Commonwealth
appeals from two orders of the Montgomery Circuit Court, one which allowed
Kendall Daugherty to invoke the spousal-testimony privilege at trial and one in
which the trial court scheduled the underlying trial to begin while the first appeal
was pending. We believe the trial court erred in allowing Appellee to utilize
spousal privilege to block all testimony of his wife and we reverse and remand on
this issue. It is our conclusion that Appellee waived this privilege by allowing his
wife to testify during pre-trial proceedings. We also believe that the issue of
scheduling the trial to begin during the pendency of this appeal is moot.
FACTS AND PROCEDURAL HISTORY
On May 24, 2024, Appellee was indicted for attempted murder1 after
he shot William Harris. Appellee called on his wife, Haley Daugherty, to testify
during two pre-trial hearings. Ms. Daugherty was questioned by defense counsel
and cross-examined by the Commonwealth on both occasions. The day before
trial, Appellee made a motion seeking to prevent his wife from testifying at trial
1 Kentucky Revised Statutes (KRS) 506.010 and KRS 507.020.
-2- pursuant to the spousal privilege found in Kentucky Rules of Evidence (KRE)
504(a). KRE 504(a) states that “[t]he spouse of a party has a privilege to refuse to
testify against the party as to events occurring after the date of their marriage. A
party has a privilege to prevent his or her spouse from testifying against the party
as to events occurring after the date of their marriage.” The Commonwealth
objected, but the trial court granted the motion. The Commonwealth then filed an
interlocutory appeal.
While that appeal was pending, the trial court set Appellee’s case for
trial. The Commonwealth then appealed that order. The Commonwealth also filed
a motion with this Court seeking to stay the trial until after the completion of the
spousal privilege appeal. This Court granted that motion, and the criminal trial
was stayed. This consolidated appeal followed.
ANALYSIS
We will first address the appeal regarding the spousal privilege issue.
The Commonwealth argues that the trial court erred in allowing Appellee to invoke
spousal testimony privilege to prevent Ms. Daugherty from testifying at trial. The
Commonwealth raises multiple arguments; however, we believe its argument
regarding waiver is determinative of this appeal. The Commonwealth argues that
by allowing his wife to testify during the two pre-trial hearings, Appellee waived
his spousal testimony privilege. We agree.
-3- We review a trial court’s ruling regarding this privilege for abuse of
discretion. Meyers v. Commonwealth, 381 S.W.3d 280, 283 (Ky. 2012). “The test
for abuse of discretion is whether the trial judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v.
English, 993 S.W.2d 941, 945 (Ky. 1999). Here, we believe the trial court abused
its discretion when it prevented Appellee’s wife from testifying at trial. KRE 509
states in relevant part that “[a] person upon whom these rules confer a privilege
against disclosure waives the privilege if he or his predecessor while holder of the
privilege voluntarily discloses or consents to disclosure of any significant part of
the privilege matter.”
KRE 509 controls. Appellee consented to the disclosure of privileged
matters by calling his wife as a witness in two pre-trial hearings. Ms. Daugherty
was questioned by both defense counsel and the prosecution regarding the shooting
and the events leading up to it. Although her testimony only lasted a few minutes
during each hearing, she testified to facts surrounding the shooting; therefore, we
believe that the spousal privilege was waived and it cannot prevent Ms. Daugherty
from testifying to relevant matters regarding the shooting that are adverse to
Appellee’s position.
-4- We emphasize the term adverse on purpose in this case. The trial
court held that Ms. Daugherty could not testify as to any matters; however, the
spousal testimony privilege is not a complete bar. The spousal testimony privilege
neither applies to favorable testimony, nor to impeachment testimony. The spousal testimony privilege is, however, limited to testimony “against” the party- spouse. This is clear in the plain language of the rule. Whether testimony is “against” the party-spouse and thus privileged requires an inquiry into the individual facts to be elicited during the testimony of the non-party spouse.
Lucas v. McDonald-Burkman, 581 S.W.3d 20, 24 (Ky. 2019) (citation omitted). In
other words, testimony that is “against” a party-spouse is testimony that is “truly
adverse to the party-spouse[.]” Id. at 25. Testimony that is not adverse should not
be excluded by the privilege. To determine what testimony could be excluded, a
court would need to examine each individual question posed by an attorney to a
spouse witness to determine if it would elicit an answer that is truly adverse to the
other spouse. Id. at 25-26. Ms. Daugherty should have been permitted to testify to
anything that was not adverse to Appellee.
The Commonwealth also argues that Appellee should not be allowed
to invoke the privilege at all because the marriage between Appellee and Ms.
Daugherty is failing and will likely not survive.2 Citing to Mullins v.
2 Evidence in the record indicates that Appellee has threatened to kill Ms. Daugherty and the couple is heading toward divorce.
-5- Commonwealth, 956 S.W.2d 210 (Ky. 1997), the Commonwealth states that
spousal privilege “exists only to protect marital harmony.” Id. at 212. The
Commonwealth argues that since the marriage between Appellee and Ms.
Daugherty appears to be broken, there is no harmony to protect and Ms. Daugherty
should be free to testify without restriction from the spousal privilege rule.
Spousal privilege under KRE 504(a) does not survive divorce.
Winstead v. Commonwealth, 327 S.W.3d 386, 391 (Ky. 2010), as modified (Dec.
16, 2010), as corrected (Dec. 17, 2010). Should Appellee and Ms. Daugherty be
divorced by the time this trial takes place, then Ms. Daugherty will be able to
testify to any events surrounding the shooting; however, we decline to expand the
negation of the privilege to periods of marital unrest. A divorce shows courts and
the world at large that a marriage is over and no longer harmonious. If a marriage
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