Second, these courts reason that the Perry Court squarely rejected the notion that due process demands judicial prescreening of eyewitness identifications whenever they might be unreliable or the product of suggestion. See, e.g., Fairley v. Commonwealth, 527 S.W.3d 792, 799 (Ky. 2017) ("Pointedly, the Court observed that many eyewitness identifications are problematic for any number of reasons including . . . a witness's poor vision, the stress of the encounter, personal grudges and cross-racial perceptions . . . ."). In so doing, the Court implicitly rejected the notion that due process requires judicial prescreening of all in-court identifications.

United States v. Whatley , 719 F.3d 1206, 1216 (11th Cir. 2013).See also, e.g. , United States v. Thomas , 849 F.3d 906, 910–11 (10th Cir. 2017) ; United States v. Hughes , 562 F. App'x 393, 398 (6th Cir. 2014) ; Young v. State , 374 P.3d 395, 411–12 (Alaska 2016) (but announcing new, more protective due process test under state law for future cases); Fairley v. Commonwealth , 527 S.W.3d 792, 798–800 (Ky. 2017) ; Galloway v. State , 122 So.3d 614, 664 (Miss. 2013) ; State v. Ramirez , 409 P.3d 902, 911–13 (N.M. 2017) ; State v. Hickman , 355 Or. 715, 330 P.3d 551, 571–72 (2014) ; cf. Benjamin v. Gipson , 640 F. App'x 656, 659 (9th Cir. 2016) (rejecting ineffective assistance of counsel claim for failure to move to suppress first-time in-court identification because, given Perry , motion likely to have been unsuccessful).

This issue has been raised in a number of similar previous cases brought to the Kentucky Supreme Court; see, e.g., Fairley v. Commonwealth, 527 S.W.3d 792 (Ky. 2017); Murray v. Commonwealth, 399 S.W.3d 398 (Ky. 2013); Monroe v. Commonwealth, 244 S.W.3d 69 (Ky. 2008); and White v. Commonwealth, 178 S.W.3d 470 (Ky. 2005). These precedents indicate that when the "evidence at trial supported only two theories: that Appellant was an active participant in planning the crime and intended that it be carried out, or that he was an innocent bystander . .

le was found some two months after it was stolen); Gargotta v. United States , 77 F.2d 977, 982 (8th Cir. 1935) (holding that the possession of pistols 293 days after theft, "cannot in any sense be considered so recent a possession as to sustain a finding of guilty knowledge that the property was stolen"); see also United States v. Fairfield , 526 F.2d 8, 12-13 (8th Cir. 1975) (noting that a finding of sufficient recency can be inferred from possessing stolen goods five to fifteen months within their taking); United States v. Wood , 500 F.2d 681, 683 (5th Cir. 1974) (holding that six months is sufficient for recency finding); Altom v. United States , 454 F.2d 289, 294 (7th Cir. 1971) (finding that a lapse of 15 months still allowed for a determination that property was recently stolen). The Supreme Court of Kentucky has also found that property was "recently stolen" when a petitioner first argued on appeal that he possessed the property fifteen months after the initial theft occurred, Fairley v. Commonwealth , 527 S.W.3d 792, 801-02 (Ky. 2017) ; notably, this case was subject to palpable error review, which requires that manifest injustice result from the error; presented a "close call" on the issue of recency; and is the largest gap in time found in the applicable case law that still allowed for a finding of recency. Id.

Commonwealth v. Crayton , 470 Mass. 228, 21 N.E.3d 157, 169 & n.16 (2014) (cleaned up).See, e.g. , United States v. Thomas , 849 F.3d 906, 910-11 (10th Cir. 2017) ; Lee v. Foster , 750 F.3d 687, 691-92 (7th Cir. 2014) ; United States v. Hughes , 562 F. App'x 393, 398 (6th Cir. 2014) ; United States v. Whatley , 719 F.3d 1206, 1214-17 (11th Cir. 2013) ; Domina , 784 F.2d at 1368-69 ; Garner v. People , 436 P.3d 1107, 1119-20 (Colo. 2019) (en banc); Byrd v. State , 25 A.3d 761, 767 (Del. 2011) ; State v. Doolin , 942 N.W.2d 500, 511-15 (Iowa 2020) ; Fairley v. Commonwealth , 527 S.W.3d 792, 799-800 (Ky. 2017) ; State v. King , 156 N.H. 371, 934 A.2d 556, 561 (2007) ; State v. Ramirez , 409 P.3d 902, 912-13 (N.M. 2017) ; People v. Brazeau , 304 A.D.2d 254, 759 N.Y.S.2d 268, 271 (2003) ; State v. Hickman , 355 Or. 715, 330 P.3d 551, 572 (2014) (en banc), modified on reconsideration , 356 Or. 687, 343 P.3d 634 (2015) (en banc) (per curiam); State v. Lewis , 363 S.C. 37, 609 S.E.2d 515, 518 (2005). For all of these reasons, we conclude that the Due Process Clause does not require a court to conduct a pre-screening of an eyewitness's testimony before that witness is permitted to identify the defendant for the first time in court.

Curry v. Fireman's Fund Ins. Co., 784 S.W.2d 176, 178 (Ky. 1989). Fairley v. Commonwealth, 527 S.W.3d 792, 799-800 (Ky. 2017). As we further made clear when it came to suspect identifications, "Absent the ‘taint of improper state action,’ Perry establishes that the jury and the ordinary rules of trial provided Jeter with all the process due him for contesting Albrecht's testimony.

"The palpable error rule requires reversal when 'manifest injustice has resulted from the error.'" Fairley v. Commonwealth, 527 S.W.3d 792, 801 (Ky. 2017) (quoting Elery v. Commonwealth, 368 S.W.3d 78, 98 (Ky. 2012)). In assessing whether there has been a showing of manifest injustice, the Court focuses "on what happened and whether the defect is so manifest, fundamental and unambiguous that it threatens the integrity of the judicial process."

Garrett's argument is not well taken. After appellate briefs were submitted in this case, this Court issued an Opinion in Fairley v. Commonwealth , 527 S.W.3d 792 (Ky. 2017), rejecting the very claim Garrett now presents. In Fairley , we held that the witness's inability to identify the defendant in a photographic lineup did not bar him from making an in-court identification:

Jeter contends that Albrecht's identification of him was not reliable as measured according to Biggers and asks us to join the courts that have found Biggers applicable to all identifications made for the first time in court. We recently rejected this very argument in Fairley v. Commonwealth, 527 S.W.3d 792, 2016-SC-000021, 2017 WL 4297162 (Ky. Sept. 28, 2017). In any event, Perry makes clear that Biggers and the other cases in its line do not apply to identifications that are not the product of state action.

"Generally stated, ‘opening the door’ to otherwise inadmissible evidence is a form of waiver that happens when one party’s use of inadmissible evidence justifies the opposing party’s rebuttal of that evidence with equally inadmissible proof." Fairley v. Commonwealth, 527 S.W.3d 792, 802 (Ky. 2017) (quoting Commonwealth v. Stone, 291 S.W.3d 696, 701-02 (Ky. 2009)). The main thrust of Workman’s appeal on this issue is that a recent Supreme Court case, Hemphill v. New York, 595 U.S. 140, 142 S. Ct. 681, 211 L. Ed. 2d 534 (2022), "cast serious doubt on the continued viability of the ‘opening of the door’ doctrine[.]"