Appellant Jordan Bentley and Buddy Pyle both admitted being at the scene of the murder, but each said the other fired the shots that killed Lucky Cox. No physical evidence at the scene determined which one fired the shots. The State tried only Bentley and contended that Bentley acted without any co-conspirator or accomplice. Tina Creed, a pivotal witness for the State, changed her story -- she first said Pyle fired the shots, then she said Bentley fired the shots. In her testimony, Creed answered the Prosecution's questions, but on cross examination pled the 5th on some issues.
The sustaining of Creed's Fifth Amendment privilege is not at issue in this appeal. What is at issue is the alleged denial of Bentley's Sixth Amendment right to confront a witness who testified against him. The record shows that Creed's bias and motive for changing her testimony ultimately determine which of her versions of the shooting the jury would believe. > > >
A Witness' invocation of the Fifth Amendment does not automatically entitle a defendant to a new trial. . . . Instead, the defendant must at least show a substantial danger of prejudice flowing from the absence of such testimony. If the invocation of the privilege merely precludes inquiry into collateral matters, there is no substantial danger of prejudice to the defendant. . . . however, if the invocation of the privilege "precludes inquiry into the details of his direct testimony, there may be a substantial danger of prejudice because the defense is deprived of the right to test the truth of his direct testimony and, therefore, that witness's testimony should be stricken in whole or in part." If there is a substantial danger of prejudice, the witnesses' direct testimony must be stricken from the record.
The Court decided that Bentley did demonstrate a substantial danger of prejudice and reversed and remanded for a new trial.
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