JAMES BAKER v. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: SEPTEMBER 14, 2007; 2:00 P.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-000498-MR
JAMES BAKER
v.
APPELLANT
APPEAL FROM BREATHITT CIRCUIT COURT
HONORABLE LARRY MILLER, JUDGE
ACTION NO. 05-CR-00002
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; NICKELL AND WINE, JUDGES.
COMBS, CHIEF JUDGE: James Baker appeals from a jury verdict and judgment of the
Breathitt Circuit Court finding him guilty of first-degree trafficking in a controlled
substance and sentencing him to five-years’ imprisonment. After our review, we affirm.
On April 18, 2004, Detectives Ken Spicer and Craig Burch were working in
an area of Breathitt County known as Barwick as part of the “UNITE” drug task force.
The detectives approached Baker’s wife, who was standing by the side of the road, and
asked her if she had anything to sell. She told them to come back in a little while because
her husband might have some Percocet. They told her that they would call later.
Later that day, Spicer and Burch met with Imogene Daniel, a “cooperating
witness,” at Buckhorn Dam. Burch searched Daniel and her car for drugs, weapons, and
money and confirmed that she was clean. Daniel subsequently called Baker’s wife and
was told that she had pills; they arranged to meet at Baker’s residence.
Burch and Daniel left the dam in Daniel’s car. Burch had a tape recorder in
his pocket and the money to buy the drugs from the Bakers. Spicer followed them in his
car and parked approximately a one-half mile from the Baker residence. Burch and
Daniel met the Bakers at their home and then drove them approximately two miles to an
isolated, graveled area. Baker’s wife got out of the car, and Baker offered to sell Burch
two Percocet pills for $25.00. Burch took the pills and gave Baker the money. All of
these events were recorded. After the sale, Daniel drove the parties back to the Bakers’
house and dropped them off. Burch took the tape recorder from his pocket and ended the
recording by summarizing what had just transpired. Burch and Daniel met Spicer at
Buckhorn Dam, where Spicer took the drugs and the recording.
On January 21, 2005, some nine months later, the Breathitt County Grand
Jury indicted Baker on one count of Trafficking in a Controlled Substance in the First
Degree, pursuant to Kentucky Revised Statutes (KRS) 218A.1412, for knowingly and
unlawfully selling Percocet, a Schedule II controlled substance. Baker was tried before a
jury on January 17, 2006, which found him guilty as charged in the indictment. The jury
-2-
recommended the minimum sentence of five-years’ imprisonment. On February 25,
2006, Baker was formally sentenced in accordance with the jury’s recommendations. He
now appeals his conviction.
Baker alleges that the trial court erred in allowing tape-recorded statements
made by Imogene Daniel to be played to the jury since she was unavailable for crossexamination at trial. During Detective Burch’s testimony at trial, the Commonwealth
played the tape recording of the drug buy to the jury. On the recording, some time after
the events of the drug buy itself, Daniel could be heard commenting on Burch’s statement
that he had purchased drugs with the remarks, “Yes, you did. You gave that to him, and
he had his hand out.” Later in the recording, while Burch was giving his summary of the
events surrounding the buy, Daniel could again be heard saying, “They’ve got ‘Percocet’
wrote right on them,” in reference to the pills purchased from Baker.
Baker’s counsel objected to allowing the jury to hear Daniel’s gratuitous
statements because she was unavailable for cross-examination, arguing that the admission
of the statements into evidence would violate Baker’s rights under the Confrontation
Clause of the Sixth Amendment to the United States Constitution. The Commonwealth
countered with the argument that the statements were admissible as non-hearsay pursuant
to Norton v. Commonwealth, 890 S.W.2d 632 (Ky.App. 1994) – even though Daniel was
unavailable to testify – because the tape recording was being offered into evidence “to
show what happened.” The trial court agreed with the Commonwealth and allowed the
statements to be played to the jury. The parties now raise the same arguments.
-3-
The Confrontation Clause of the Sixth Amendment provides: “In all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him[.]” U.S. Const. Amend. VI. This constitutional guarantee is
applicable to the states through the Fourteenth Amendment to the U.S. Constitution.
Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 1069, 13 L.Ed.2d 923 (1965). The
Commonwealth again contends that Norton v. Commonwealth serves to rebut Baker’s
claim that his rights under the Confrontation Clause were violated because Daniel’s
statements were played to the jury.
In Norton, the Paducah Police Department organized an undercover drug
buy during which an undercover officer and his informant purchased LSD from Norton
and another defendant. The transaction and the conversations of the parties involved
were recorded on tape and were played to the jury during trial. We summarized the
substance of the recording as follows:
The recordings at issue relate a conversation between
the two defendants, Norton and Street, Officer Acree, and
informant Fritz. The tapes also contain non-substantive
remarks and sounds made by unidentified voices in the
background. The conversation revolves around a discussion
of a possible sale of marijuana, including the logistics of how
such a transaction might occur, such as: the quantity desired;
the cost; how the money and goods would be delivered and
exchanged. Intermingled in this conversation is some
discussion regarding “acid”: whether Norton has any; how
much it costs; and its quality.
Id. at 634.
-4-
Norton objected to introducing the tape recording at trial, arguing that the
statements that it contained were hearsay and that they violated his right to confrontation.
In disagreeing, we held that the tapes in issue did not constitute hearsay. Id. at 635. We
reasoned that the tapes were not offered into evidence for the purpose of proving the truth
of the matters being asserted in the recorded conversations; “i.e., that a pound of
marijuana cost $2,000 or that someone ‘took a hit and a half and said he was fried . . . .’”
Id. Instead, we found that the Commonwealth “had no interest in proving whether such
statements were true but rather that the defendants . . . were present, engaged in
negotiations, and were involved in the transaction . . . .” Id. Consequently, since the
tapes did not contain hearsay, a Confrontation Clause violation could not be at issue and
thus did not occur. Id.
After reviewing the record before us, we tend to agree that the
Commonwealth and the trial court properly relied on Norton as a basis for admitting
Daniel’s statements into evidence as essentially non-hearsay. However, we are
persuaded that appellant has raised some legitimate hearsay arguments suggesting that
the statements present a hybrid issue as to their quasi-hearsay/non-hearsay nature. We
note that while the contested statements in Norton occurred simultaneously with the drug
buy, those at issue here were recorded after the transaction had taken place.
Additionally, Daniel’s comments presented her version of what she had witnessed and
bolstered Detective Burch’s account of events. Thus, the reliability of such statements is
potentially questionable and merits more analysis than automatic reliance on Norton.
-5-
The statements fit within none of the enumerated hearsay exceptions set
forth in Kentucky Rules of Evidence (KRE) 803 (under which the availability of the
declarant is immaterial). For example, the statements do not reflect a present sense
impression under KRE 803(1) because they did not describe events as they were
happening but instead alluded to events that had already occurred. Fields v.
Commonwealth, 12 S.W.3d 275, 279-80 (Ky. 2000). They also were not admissible as
public records and reports under KRE 803(8)(A), id. at 280, or as part of any records of
regularly conducted activity under KRE 803(6) since nothing was introduced to suggest
that the statements qualified for admission under a separate hearsay exception. See
Manning v. Commonwealth, 23 S.W.3d 610, 613-14 (Ky. 2000). The statements also do
not fit within any of the hearsay exceptions set forth in KRE 804.
In light of these hearsay arguments, we shall re-visit their ramifications as
to Baker’s constitutional rights under the Confrontation Clause. In Crawford v.
Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States
Supreme Court re-examined its prior case law dealing with the Confrontation Clause and
held that the Clause forbids the admission into evidence of all “testimonial” hearsay
statements of a witness against a criminal defendant unless the witness is unavailable to
testify at trial and the defendant has had a prior opportunity for cross-examination. Id.,
541 U.S. at 68, 124 S.Ct. at 1374; see also Bray v. Commonwealth, 177 S.W.3d 741, 744
(Ky. 2005). In Davis v. Washington, 547 U.S. ----, 126 S.Ct. 2266, 165 L.Ed.2d 224
-6-
(2006), the Court refined Crawford and held that the Confrontation Clause applies only
to testimonial statements and has no bearing on non-testimonial hearsay:
A critical portion of [Crawford], and the portion central to
resolution of the two cases now before us, is the phrase
“testimonial statements.” Only statements of this sort cause
the declarant to be a “witness” within the meaning of the
Confrontation Clause. See id., at 51, 124 S.Ct. 1354. It is
the testimonial character of the statement that separates it
from other hearsay that, while subject to traditional
limitations upon hearsay evidence, is not subject to the
Confrontation Clause.
Id., 126 S.Ct. at 2273 (Emphasis added); see also Whorton v. Bockting, --- U.S. ----, 127
S.Ct. 1173, 1183, 167 L.Ed.2d 1 (2007).
In the case before us, Daniel did not testify at trial, and the
Commonwealth’s efforts to procure her testimony were unsuccessful; however, the
record reflects that Baker did not have a prior opportunity to cross-examine her – as
contemplated by Crawford. Accordingly, the sole question that we must consider as to
Baker’s claim for relief under the Confrontation Clause is whether Daniel’s statements
were testimonial in nature. Bray, 177 S.W.3d at 744.
In Crawford, the U.S. Supreme Court set forth the Confrontation Clause’s
emphasis on “testimonial hearsay,” noting that “[i]t applies to ‘witnesses’ against the
accused -- in other words, those who ‘bear testimony.’” Crawford, 541 U.S. at 51, 124
S.Ct. at 1364 (Quotation omitted). The Court defined testimony as “typically ‘[a] solemn
declaration or affirmation made for the purpose of establishing or proving some fact.’”
Id. (Quotation omitted). The Court added: “An accuser who makes a formal statement
-7-
to government officers bears testimony in a sense that a person who makes a casual
remark to an acquaintance does not.” Id. Our Supreme Court acknowledged and adopted
this reasoning in Commonwealth v. Walther, 189 S.W.3d 570 (Ky. 2006).
The statements made by Daniel certainly qualify as a “declaration or
affirmation” tending by their nature to “establish[] or prov[e] some fact”; i.e., what had
occurred during the drug buy. Her statements directly implicated Baker in the crime for
which he was charged and reflected what she had observed as a witness to the
transaction. The fact that Daniel’s statements were an after-the-fact account of criminal
conduct raises concerns. In Davis, the U.S. Supreme Court distinguished the disputed
interrogation (which occurred during a 911 call) from the exchange in Crawford by
noting that the witness in Davis “was speaking about events as they were actually
happening, rather than ‘describ[ing] past events . . . .’” The present-tense nature of the
recitation bolstered the non-testimonial nature of the statement. Davis, 126 S.Ct. at 2276
(Quotation omitted) (Emphasis in original).
Daniel’s statements in this case are clearly a description of past events –
albeit very recently past. They were not made in the context of an ongoing emergency,
and they were not made during the actual course of the drug buy as it was occurring. The
statements undoubtedly implicated Baker as being involved in criminal activity. These
facts, taken together, suggest that the statements were testimonial in nature. See Heard v.
Commonwealth, 217 S.W.3d 240, 244 (Ky. 2007).
-8-
The fact that the statements were not made in response to questioning does
not necessarily render them non-testimonial. Davis, 126 S.Ct. at 2274 n.1. Ultimately,
“it is in the final analysis the declarant's statements, not the interrogator's questions, that
the Confrontation Clause requires us to evaluate.” Id. Crawford also endorsed the view
that statements were testimonial if they “were made under circumstances which would
lead an objective witness reasonably to believe that the statement[s] would be available
for use at a later trial[.]” Crawford, 541 U.S. at 52, 124 S.Ct. at 1364. Daniel’s
statements were made while Detective Burch was recording a summary of the events that
had occurred at the drug buy. We believe that any objective witness would reasonably
believe that this recording would be available for use at a later trial.
We must next determine whether Daniel’s statements were made under
circumstances that would render them sufficiently solemn and formal to qualify as
testimonial for purposes of the Confrontation Clause. The Court’s emphasis on
solemnity and formality with respect to testimonial hearsay is readily apparent
throughout Crawford – as demonstrated by the Court’s definition of testimony provided
above (i.e., “[a] solemn declaration or affirmation” of one who “bear[s] testimony”). Id.,
541 U.S. at 51, 124 S.Ct. at 1364. Davis reiterates that emphasis: “We do not dispute
that formality is indeed essential to testimonial utterance.” Davis, 126 S.Ct. at 2278 n.5;
see also People v. Coleman, 16 A.D.3d 254, 791 N.Y.S.2d 112, 113 (N.Y.App.Div.
2005).
-9-
While the Court failed to define or to set any general guidelines for
determining formality, it did note in Davis that “[t]he solemnity of even an oral
declaration of relevant past fact to an investigating officer is well enough established by
the severe consequences that can attend a deliberate falsehood.” Davis, 126 S.Ct. at
2276. The Court later added: “It imports sufficient formality, in our view, that lies to
such officers are criminal offenses.” Id. at 2278 n.5.
After careful consideration, we conclude that Daniel’s statements to
Detective Burch were not sufficiently formal to implicate the Confrontation Clause.
Daniel’s comments were unprompted, unsolicited, and spontaneous and were not the
result of any prompting from Burch. We also note that the situation surrounding Daniel’s
statements was somewhat unique in that she was doing nothing more than verifying a
version of events that Detective Burch had personally witnessed. Because of his own
direct involvement, Burch had full knowledge of what had occurred. He was not
conducting a formal post-incident investigation that required reliance on any information
that Daniel provided him. He himself had been a participant, and Daniel was not telling
him anything that he did not already know. Daniel's statements were not made under
formal conditions that would give a witness time for reflection. We conclude that
Daniel’s recorded comments were not sufficiently formal to fall within the realm of
testimonial hearsay. Therefore, the Confrontation Clause was not implicated.
- 10 -
While it is undoubtedly unfortunate that these statements were allowed to
be heard by the jury, we are persuaded that any error was harmless. Kentucky Rules of
Criminal Procedure (RCr) 9.24 provides that:
No error in either the admission or the exclusion of
evidence and no error or defect in any ruling or order, or in
anything done or omitted by the court or by any of the parties,
is ground for granting a new trial or for setting aside a verdict
or for vacating, modifying or otherwise disturbing a judgment
or order unless it appears to the court that the denial of such
relief would be inconsistent with substantial justice. The
court at every stage of the proceeding must disregard any
error or defect in the proceeding that does not affect the
substantial rights of the parties.
As the Kentucky Supreme Court has recently noted, “An error is harmless where,
considering the entire case, the substantial rights of the defendant are not affected or there
appears to be no likely possibility that the result would have been different had the error
not occurred.” Greene v. Commonwealth, 197 S.W.3d 76, 84 (Ky. 2006). After
reviewing the record before us, we cannot say that there is a likely possibility that the
result of the trial would have been different even if Daniel’s statements had not been
introduced to the jury. Detective Burch gave specific and elaborate eyewitness testimony
detailing how Baker personally sold him Percocets for cash in a hand-to-hand exchange.
Baker provided nothing to refute this version of events. Under these circumstances,
Daniel’s questionable statements could not be deemed to constitute reversible error.
Baker last claims that the trial court erred in denying his motion for a
directed verdict following the Commonwealth’s case-in-chief. He contends that without
additional substantiation of Detective Burch’s testimony at trial, there was insufficient
- 11 -
evidence for a reasonable jury to find him guilty beyond a reasonable doubt. We
disagree.
Our review of the denial of a motion for directed verdict is governed by the
standard set forth in Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991):
On motion for directed verdict, the trial court must
draw all fair and reasonable inferences from the evidence in
favor of the Commonwealth. If the evidence is sufficient to
induce a reasonable juror to believe beyond a reasonable
doubt that the defendant is guilty, a directed verdict should
not be given. For the purpose of ruling on the motion, the
trial court must assume that the evidence for the
Commonwealth is true, but reserving to the jury questions as
to the credibility and weight to be given to such testimony.
On appellate review, the test of a directed verdict is, if
under the evidence as a whole, it would be clearly
unreasonable for a jury to find guilt, only then the defendant
is entitled to a directed verdict of acquittal.
Id. at 187. After reviewing the entirety of the evidence here, we cannot say that it was
clearly unreasonable for the jury to find Baker guilty of trafficking in a controlled
substance. Detective Burch gave specific, elaborate, and uncontroverted eyewitness
testimony detailing his interaction with Baker and the events surrounding the drug buy.
A Kentucky State Police crime lab technician verified that the pills purchased from Baker
were Percocets that contained oxycodone. This evidence was more than sufficient to
support a conviction.
The judgment of the Breathitt Circuit Court is affirmed.
ALL CONCUR.
- 12 -
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
Donald H. Morehead
Department of Public Advocacy
Frankfort, Kentucky
BRIEF FOR APPELLEE:
Gregory D. Stumbo
Attorney General of Kentucky
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky
ORAL ARGUMENT FOR APPELLEE:
Ken W. Riggs
Frankfort, Kentucky
- 13 -
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.