LARRY OSBORNE V. COMMONWEALTH OF KENTUCKY
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1999-SC-0124-MR
LARRY OSBORNE
V.
APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE PAUL BRADEN, JUDGE
98-CR-006-1
APPELLEE
COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE COOPER
REVERSING AND REMANDING
I. FACTS.
Sometime after 12:30 a.m. on December 14, 1997, Sam and Lillian Davenport,
ages 82 and 76 respectively, died in a fire that consumed their residence on highway
1804 in Whitley County, Kentucky. Forensic testing revealed the presence of an
accelerant in the room where the bodies were found and on a portion of Mrs.
Davenport’s clothing, indicating the fire had been intentionally set. Autopsies revealed
that each victim had sustained a cranial injury consistent with blunt force trauma, but
that the cause of death in each instance was smoke inhalation.
Earlier that same evening, Appellant Larry Osborne had borrowed a “DS80”
motorcycle (described by some witnesses as a “dirt bike”) from Dustin Oyer, a visitor at
the Osborne residence, and had driven it from his residence on Burke Hollow Road to
highway 1804, then south on 1804 past the residence of Sam and Lillian Davenport to
the residence of Scott Duncan on highway 25. Appellant, Duncan, Sarah Tissott and
Joe Reid, age fifteen, then proceeded back north on 1804 past the Davenport
residence to the residence of William Nix and Irene Ramsey. Appellant drove the
motorcycle with Reid riding on the back as a passenger. Duncan and Tissott followed
in a pickup truck. Appellant and Reid left the Nix/Ramsey residence sometime after
midnight and drove south on 1804 past the Davenport residence to Jellico, where Reid
lived with his grandmother, Mildred McLemore. Appellant and Reid arrived at the
McLemore residence at approximately 1255 a.m. To return to his home on Burke
Hollow Road, Appellant was required to again drive north on 1804 past the Davenport
residence. Mildred McLemore testified that Appellant telephoned his mother from her
residence and that she overheard him say: “Mom, me and Joe heard glass breaking
down here at a house on the road. Come and follow me home. I’m scared.”
McLemore then watched as Appellant drove the motorcycle to a nearby store referred
to alternatively as “Ray’s market” and the “Red Ace.”
Dustin Oyer testified that he was asleep at the Osborne residence when Patricia
Osborne awakened him and asked him to accompany her to meet Appellant.
Pat woke me up, said that we’re -- well, could you ride to the Red
Ace with me? Larry’s waiting on me on your motorcycle. We rode up
there. Larry said I heard some glass shattering around the house, the
Davenports’ house. The house wasn’t burning when we come through.
We come back through. We got at her house. Then she dialed 911, the
law, or something like that and said that her son heard glass breaking
around the house, the Davenports’ house. And then somebody called her
back. It could have been the law that called her back. I don’t know. But
somebody called her back and her and Larry got in the car and went down
to the Davenports’ house. She said it was the law that called them and
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told them to come to the house. They needed questions from them or
something.
The Whitley County “911” dispatcher testified that at I:18 a.m. a person
identifying herself as “Pat Osborne” called to report that her son had heard glass
breaking when he drove past the Davenport residence. The caller gave both her name
and her telephone number to the dispatcher. At trial, the Commonwealth introduced an
audiotape recording of the entire “911” telephone conversation. The dispatcher then
contacted Kentucky State Police Trooper Sam Durham who arrived at the Davenport
residence at I:36 a.m. to find it engulfed in flames. Durham unsuccessfully attempted
to enter the burning home, then directed the dispatcher to call the fire department. Also
at Durham’s request, the dispatcher called the Osborne residence and asked Appellant
and his mother to report to the scene. Upon arrival, Appellant told Durham that he and
Reid had driven by the Davenport residence on a motorcycle and had heard “the crash
of glass breaking.”
Appellant did not testify at trial. However, in addition to the oral statement made
to Trooper Durham, he gave the following written statement to Kentucky State Police
Detective Gary Lane on the morning after the murders:
Me and Joe Reid were riding a motorcycle past Mr. Davenport’s
when I heard a glass breaking. We then went to Joe Reid’s residence
where I called my mom, Pat Osborne, to pick me up. I drove the
motorcycle home while Mom followed. We seen nothing on the way back
through. This happened on 12-14-97 approx 0130 hrs.
Joe Reid gave Detective Lane the following written statement:
On 12-14-97 approx 0100 hrs me and Larry Osborne were riding a
trail bike past Davenport residence. I heard some glass breaking. I did
not see anybody around the residence.
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On December 31, 1997, Reid submitted to a polygraph examination. Upon being
told that he had failed the examination, Reid “confessed” the following sequence of
events to Detective Lane: After leaving the Nix/Ramsey residence, Appellant told Reid
he was going to borrow some money from the Davenports to purchase a horse.
Appellant drove the motorcycle to the Davenport residence with Reid riding on the back.
Appellant got off the motorcycle and proceeded to the rear of the house, then returned
with a wooden lawn chair and placed it under a window. When Reid realized that
Appellant was going to break into the house, he urged Appellant not to do so. Reid
then attempted to start the motorcycle, but the chain fell off. Appellant broke the
window and entered the residence. Reid put the chain back on the motorcycle and
drove down the road, but returned to find Appellant waiting for him outside the
Davenport residence with a “pocketful” of money. Reid claimed he heard no screams
or gunshots and that Appellant did not have a gun. Appellant drove Reid home on the
motorcycle.
On January 21, 1998, Reid testified before a Whitley County grand jury
substantially as follows: Appellant picked him up at Scatty Duncan’s residence and
drove him to the Nix/Ramsey residence on a motorcycle that Appellant had borrowed
from Dustin “Whittier” (presumably Oyer). At about IO:30 - II:00 p.m., Appellant told
Reid he was going to get some money for a horse and was absent from the
Nix/Ramsey residence for thirty to thirty-five minutes. Reid speculated that Appellant
went to his own home either to obtain a weapon or to enlist his mother’s assistance in
robbing the Davenports. Reid and Appellant left the Nix/Ramsey residence at
approximately 12: 15 - 12:20 a.m. with Appellant driving the motorcycle and Reid riding
on the back. Upon arrival at the Davenport residence, Appellant stopped, got off the
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motorcycle, and told Reid he was going to borrow some money from the Davenports.
Appellant had a handgun. Appellant went to the rear of the Davenport house and Reid
attempted to drive the motorcycle “down the road,” but the chain came off. Reid then
heard glass breaking and two gunshots from the rear of the house. Appellant returned
from the rear of the house and placed a lawn chair under a window, then broke out the
window glass with his forearm and entered the residence. Reid heard more glass
breaking, another gunshot, and a woman screaming inside the residence. Appellant
came out of the house with money in his pockets and the gun up his sleeve, got back
on the motorcycle, and drove Reid to his home. Appellant told Reid that his mother
would help him burn the Davenports’ residence and threatened to beat Reid if he
“ratted” on him.
In response to a question from a grand juror about the chain incident, Reid
testified that he had previously worked on Oyer’s motorcycle, but had failed to properly
tighten the chain; and when he attempted to push the motorcycle, the chain fell off. He
put or “threw” the chain back on the motorcycle, but made no attempt to tighten it, then
pushed the motorcycle forward to see if the chain would stay on. The following colloquy
then occurred:
Juror: Were you planning to leave him?
Reid:
I was going to drive it.
Juror: While he was in the house?
Reid: Yeah.
The Whitley County grand jury indicted Appellant on two counts of murder and
one count each,of robbery in the first degree, burglary in the first degree, and arson in
the first degree. Patricia Osborne was indicted on two counts of complicity to murder
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and one count each of arson in the first degree and complicity to burglary in the first
degree. The Commonwealth’s theory was that Appellant forcibly entered the Davenport
residence and assaulted and robbed the victims; and that he and his mother later
returned to the residence and set the fire to cover up the earlier crimes. The joint
indictments of Appellant and his mother were severed for purposes of trial. Appellant
was subsequently convicted of all charges and sentenced to death for each murder, to
life in prison for first-degree arson, and to twenty years each for first-degree burglary
and first-degree robbery. He appeals to this Court as a matter of right. Ky. Const. §
110(2)(b); KRS 532.075. We reverse and remand because of the improper admission
of hearsay evidence during Appellant’s trial. We will only address those additional
issues affecting retrial or likely to recur upon retrial.
II. JUVENILE TRANSFER PROCEEDINGS.
Appellant was seventeen years old when these offenses occurred, thus the
charges against him were first brought in the juvenile division of the Whitley District
Court. KRS 635.010. The juvenile complaint/petition charged Appellant with two
murders, first-degree arson and first-degree robbery, but not first-degree burglary.
Following a transfer hearing held pursuant to KRS 640.010, Appellant was transferred
to the Whitley Circuit Court as a youthful offender. Appellant claims it was error to
indict and convict him of first-degree burglary, or to use that offense as an aggravating
circumstance authorizing the death penalty, since he had not been charged with that
offense in juvenile court; thus, the district judge had no authority to transfer that offense
to circuit court. (The transfer order recites that Appellant was charged with two
murders, first-degree arson and first-degree burglary, but not first-degree robbery.)
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However, under the statutory scheme for youthful offenders, it is the offender that is
transferred to circuit court, not the offense.
[Tjhe child may be transferred to Circuit Court, and if the child is
transferred the District Court shall issue an order transferring the child as
a youthful offender and shall state on the record the reasons for the
transfer. The child shall then be proceeded against in the Circuit Court as
an adult, except as otherwise provided in this chapter.
KRS 640.010(2)(c) (emphasis added).
Appellant’s reliance on KRS 640.010(3) is misplaced. That statute requires that
the child be returned to juvenile court if the grand jury does not find probable cause to
indict the child as a youthful offender under KRS 635.020(2), (3), (5) (6) (7) and (8),
but does find probable cause to indict the child for another criminal offense. If the
grand jury finds probable cause to indict the child as a youthful offender, KRS
640.010(3) does not preclude it from indicting the child for other offenses arising out of
the same course of conduct that gave rise to the offense that caused the child to be
transferred to circuit court. In fact, the provisions of KRS 610.015(2) and KRS
635.020(8) anticipate that other offenses arising out of the same course of conduct can
be charged and adjudicated in circuit court after transfer.
Relying on Harden v. Commonwealth, Ky. App., 885 S.W.2d 323 (1994)
Appellant also complains that the transfer order did not contain written findings with
respect to each of the eight factors enumerated in KRS 640.010(2)(b). When Harden
was decided, KRS 640.010(2)(c) provided:
If, following the completion of the preliminary hearing, the court is of the
ooinion. after considerina the factors enumerated in subsection (b) of this
section, that the child should be transferred to circuit court, the court shall
issue an order transferring the child as a youthful offender and shall state
on the record the reasons for the transfer. . . . (Emphasis added.)
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The transfer order in Harden stated the reasons for the transfer, but did not
recite that the district judge had considered all the factors enumerated in KRS
640.010(2)(b). The Court of Appeals held that this omission required reversal and
remanded the case to the juvenile court for a new transfer hearing. Id. at 325.
Subsequent to the transfer at issue in Harden, KRS 640.010(2)(c) was amended’ so
that it now reads:
If, following the completion of the preliminary hearing, the District Court
finds. after considerina the factors enumerated in paraaraoh (b) of this
subsection. that two (2) or more of the factors soecified in baraaraDh (b1
of this subsection are determined to favor transfer, the child may be
transferred to Circuit Court, and if the child is transferred the District Court
shall issue an order transferring the child as a youthful offender and shall
state on the record the reasons for the transfer. (Emphasis added.)
Here, the transfer order recites that “all the factors” (presumably those
enumerated in KRS 640.010(2)(b)) were considered and that three of those factors
were found to favor transfer: (1) the seriousness of the offenses; (2) the offenses were
committed against both persons and property; and (3) Appellant’s age made it unlikely
that reasonable rehabilitation could be accomplished by use of juvenile services and
facilities. Thus, the transfer order satisfied the requirements of the statute and sufficed
to vest the circuit court with jurisdiction to adjudicate the charges for which Appellant
was subsequently indicted and convicted.
III. HEARSAY: GRAND JURY TESTIMONY.
Joe Reid died by accidental drowning on July 8, 1998.
Appellant’s trial began
on November 23, 1998. At trial, Detective Lane was allowed to read to the jury a
transcript of Reid’s January 21, 1998 grand jury testimony. Since that testimony was
’ 1996 Ky. Acts, ch. 358, § 55, eff. July 15, 1997.
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offered to prove the truth of its content, i.e., that Appellant robbed and killed the
Davenports and burglarized and burned their residence, the testimony was clearly
hearsay and inadmissible unless it fell within an exception to the hearsay rule. KRE
801(c); KRE 802. It is immaterial that Appellant was permitted to impeach Reid’s grand
jury testimony by cross-examining Lane about Reid’s prior inconsistent statements.
Impeachment of incompetent evidence is no substitute for its exclusion.
The trial judge held Reid’s grand jury testimony admissible under the hearsay
exception for statements against interest. KRE 804(b)(3). That Rule provides an
exception for:
A statement which was at the time of its making so far contrary to the
declarant’s pecuniary or proprietary interest, or so far tended to subject
the declarant to civil or criminal liability . . . that a reasonable person in the
declarant’s position would not have made the statement unless believing it
to be true. A statement tending to expose the declarant to criminal liability
is not admissible unless corroborating circumstances clearly indicate the
trustworthiness of the statement.
The Commonwealth’s argument in response to Appellant’s motion to suppress
was that Reid’s statement that he put the chain back on the motorcycle exposed him to
criminal liability for criminal facilitation. KRS 506.080(l) provides:
A person is guilty of criminal facilitation when, acting with knowledge that
another person is committing or intends to commit a crime, he engages in
conduct which knowingly provides such oerson with means or oooortunity
for the commission of the crime and which in fact aids such oerson to
commit the crime. (Emphasis added.)
Obviously, Reid’s act of putting the chain back on the motorcycle did not provide
Appellant with the means or opportunity to rob and kill the Davenports or to burglarize
and burn their residence. Thus, on appeal, the Commonwealth argues that Reid’s
statement exposed him to criminal liability for hindering prosecution or apprehension.
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KRS 520.120 (hindering in the first degree) and KRS 520.130 (hindering in the second
degree) both provide in pertinent part:
A person is guilty of hindering prosecution or apprehension . . . when, with
the intent to hinder the apprehension, prosecution, conviction or
punishment of another [who] is being sought in connection with the
commission of a [criminal] offense . . . he renders assistance to such
person. (Emphasis added.)
KRS 520.11 O(1) defines “renders assistance” to include, inter alia: “Provid[ing]
such person with money, transportation, weapon, disguise or other means of avoiding
discovery or apprehension.” (Emphasis added.) Even assuming Reid put the loose
chain back on the motorcycle’s cogs with the intent to hinder Appellant’s apprehension
or prosecution, as opposed to (as his testimony suggested) facilitating his own
departure from the scene, the fact remains that Reid did not “provide” Appellant with
the “transportation” that Appellant supposedly used to avoid discovery or apprehension.
The motorcycle belonged not to Reid, but to Dustin Oyer. Presumably, if Reid had not
slipped the loose chain back on the motorcycle, Appellant could have done so himself.
This simple act was insufficient to expose Reid to criminal liability for hindering
prosecution or apprehension by providing transportation to one being sought in
connection with a criminal offense. The prosecutor obviously agreed; for despite the
fact that Reid received no “deal” in exchange for his grand jury testimony, no effort was
made during the interim between that testimony and Reid’s death to charge him with
any criminal offense premised upon his testimony. There is also a complete absence of
any corroboration, as required by KRE 804(b)(3), either that the chain came off the
motorcycle or that Reid put it back on.
But even, if Reid’s description of the chain incident had been admissible as a
statement against his own penal interest, such would not have authorized the wholesale
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admission of his entire grand jury testimony, the balance of which served only to
incriminate Appellant. The United States Supreme Court has held that a “statement”
against penal interest is “a single declaration or remark,” not the entire “report or
narrative” within which it is contained.
[Tjhe most faithful reading of Rule 804(b)(3) is that it does not allow
admission of non-self-inculpatory statements, even if they are made within
a broader narrative that is generally self-inculpatory. The district court
may not just assume for purposes of Rule 804(b)(3) that a statement is
self-inculpatory because it is part of a fuller confession, and this is
especially true when the statement implicates someone else.
Williamson v. United States, 512 U.S. 594, 599, 600-01, 114 S.Ct. 2431, 2434, 2435,
129 L.Ed.2d 476 (1994); see also Vincent v. Seabold,
226 F.3d 681, 687, 689 (6th Cir.
2000). Although the hearsay rule and many of its recognized exceptions predate the
United States Constitution,* the application of those exceptions clearly implicates the
Confrontation Clause of the Sixth Amendment, Ohio v. Roberts, 448 U.S. 56, 100 S.Ct.
2531, 65 L.Ed.2d 597 (1980) made applicable to the states by the Fourteenth
Amendment. Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1068, 13 L.Ed.2d
923 (1965). Thus, we are bound by the United States Supreme Court’s interpretation of
what constitutes an admissible out-of-court “statement” under the hearsay exception for
statements against penal interest. Cf. Moselev v. Commonwealth, KY., 960 S.W.2d
460, 462 (1997). Pursuant to Williamson, each statement within the broader narrative
must be examined individually to determine whether it is, in fact, self-inculpatory. If not,
* The exception for statements against penal interest, however, is of more
recent origin. See Chambers v. Mississippi, 410 U.S. 284, 298-301, 93 S.Ct. 1038,
1047-49, 35 L.Ed.2d 297 (1973); Crawlev v. Commonwealth, Ky., 568 S.W.2d 927,
930-31 (1978), cert. denied, 439 U.S. 1119 (1979), limited on other arounds, Martin v.
Commonwealth, Ky., 13 S.W.3d 232 (1999); Thomas v. State, 580 N.E.2d 224 (Ind.
1991).
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it is inadmissible. Gabow v. Commonwealth, Ky., 34 S.W.3d
63, 78 n.12 (2000). Here,
the Commonwealth can identify but one isolated remark in the broader narrative of
Reid’s grand jury testimony as even arguably against Reid’s own penal interest. The
remainder of his testimony was self-exculpatory, i.e., that he was an innocent bystander
to crimes committed by Appellant. Moore v. Commonwealth, Ky., 282 S.W.2d 613, 615
(1955) (“mere presence at the scene of a crime is not sufficient to attach guilt”).
We also reject the novel theory advanced during oral argument that any
statement made under oath is a “potential” statement against penal interest because, if
untrue, the statement would subject the declarant to prosecution for perjury. If that
were so, every prior statement made under oath by an unavailable witness would be
automatically admissible against any person inculpated by that statement. There is, of
course, a separate hearsay exception for former testimony; but that exception permits
the admission of prior sworn testimony only if the party against whom the testimony is
now offered had an opportunity when it was given to develop the testimony by direct,
cross, or redirect examination. KRE 804(b)(l). Obviously, Appellant never had an
opportunity to cross-examine Reid’s grand jury testimony.
The improper admission of the grand jury testimony of Joe Reid requires reversal
for a new trial at which none of Reid’s statements inculpating Appellant shall be
admitted.
IV. HEARSAY: “911” AUDIOTAPE.
Appellant asserts that the audiotape of Patricia Osborne’s telephone call to the
“911” dispatcher should have been excluded as hearsay, because Mrs. Osborne did not
testify at trial and her statements to the dispatcher could not reasonably be
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characterized as “excited utterances” under KRE 803(2).3
However, an out-of-court
statement is not hearsay if it is relevant to prove only that the statement was made and
not for the truth of the matter asserted. KRE 801 (c). Obviously, the Commonwealth did
not introduce the audiotape to prove the truth of Patricia Osborne’s assertion that
Appellant heard glass breaking when he drove past the Davenport residence. That was
Appellant’s theory of the case, not the Commonwealth’s. It was the Commonwealth’s
theory that the statements made during the “911” call were false and, thus, proved a
scheme by Appellant and his mother to divert police attention away from themselves to
an unknown perpetrator. As such, the statements made during the “911” call had a
relevancy existing without regard to the truth of the assertions. Perdue v.
Commonwealth, Ky., 916 S.W.2d 148, 156 (1995) cert. denied, 519 U.S. 855 (1996);
R. Lawson, The Kentucky Evidence Law Handbook § 8.05, at 367-68 (3d ed. Michie
1993).
Coughing is heard in the background of the audiotape of the “911” call. The
prosecutor speculated during closing argument that it was Appellant coughing smoke
and soot from the fire out of his lungs. Mrs. Osborne made several aside comments
during the “911” call from which it could be inferred that Appellant was present and
providing her with information at the time. Though dubious and obviously speculative,
the prosecutor’s characterization of the background coughing was not such an
unreasonable inference from the evidence as to constitute reversible error. Tamme v.
3 Appellant does not contest the authentication of the “911” call. Mrs. Osborne
gave both her name and telephone number to the dispatcher, and he was able to reach
her later by return call to that same number. Cf. KRE 901 (b)(6); compare Crowe v.
Commonwealth, Ky -7 - S.W.3d - (2001).
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Commonwealth, Ky., 973 S.W.2d
13, 39 (1998), cert. denied, 525 U.S. 1153 (1999);
Bills v. Commonwealth, Ky., 851 S.W.2d 466, 473 (1993).
V. CRIME ROUTE VIDEO.
Detective Lane introduced a videotape purporting to show the routes and
distances supposedly traveled by Appellant and his mother on the night in question and
the approximate times it took to travel those distances. The Commonwealth’s theory
was that Appellant and Reid first traveled from the Nix/Ramsey residence south on
highway 1804 to the Davenport residence where Appellant robbed the Davenports, then
from the Davenport residence south on 1804 to its merger with highway 25, then south
on highway 25 to Jellico, then up Kentucky Hill to Mildred McLemore’s residence; that
Appellant then drove down Kentucky Hill to Ray’s market on highway 25 where he met
his mother; that Appellant and his mother proceeded back to highway 1804 and north to
the Davenport residence where they set the fatal fire, then continued north on 1804 to
Burke Hollow Road where they turned right and proceeded to their own residence.
Appellant agrees this was the route he traveled that night, but disagrees that he ever
stopped at the Davenport residence.
Detective Lane used a video camera mounted inside his police cruiser to
videotape the routes while he drove from point to point at a speed of forty miles per
hour, marking the travel times with a stopwatch. However, he did not videotape the socalled “crime route” in the sequence in which it occurred. The videotape starts at the
Davenport residence, then proceeds north on 1804 to Burke Hollow Road, then to the
Osborne residence. Lane testified that the travel time from the Davenport residence to
the Osborne residence was one minute and fifty-three seconds. The next scene on the
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videotape is the Nix/Ramsey residence, but there is no depiction of any route to or from
that location. The videotape then switches to the McLemore residence on Kentucky
Hill, from where it proceeds to Ray’s market on highway 25, then to highway 1804 and
back to the Davenport residence. Detective Lane testified that the travel time from the
McLemore residence to the Davenport residence was two minutes.
Appellant asserts three errors with respect to the admission of the crime route
video: (1) the video was made during daylight hours whereas the actual events
occurred at night; (2) there was no evidence as to how fast Appellant was driving the
motorcycle on the night in question; and (3) the transposition of the Nix/Ramsey
residence from the Osborne residence on the videotape created an inference that they
are located next to each other when, in fact, they are several miles apart.
Presumably, the purpose of the crime scene video was to demonstrate the
relatively short distances and travel times between locations crucial to this case in order
to prove that it was possible for Appellant and his mother to drive from Ray’s market to
the Davenport residence, set the fire, and arrive at their own residence by I:18 a.m.,
when Patricia Osborne made her “911” call. Thus, it is of no consequence that the
video was made during daylight rather than at night, or that the motorcycle may have
been going faster or slower than Lane’s police cruiser. Similar to the posed photograph
described in Gorman v. Hunt, KY., 19 S.W.3d 662 (2000) the crime scene video simply
demonstrated the plausibility of the Commonwealth’s theory of the case. While the
transposition to the Nix/Ramsey residence from the Osborne residence may have been
confusing, Lane clarified on cross-examination that they were not located near each
other and that the Nix/Ramsey residence was located further north on highway 1804.
Though it may have been preferable to have deleted the portrayal of the Nix/Ramsey
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residence from the videotape, that request was not made at trial. We conclude that the
trial judge did not abuse his discretion in admitting the crime scene video into evidence.
Id. at 669.
VI. GLASS PARTICLES.
Glass fragments found at seven different locations on the Davenport property
were sent to the Kentucky State Police Crime Laboratory for forensic examination, as
was the clothing Appellant was wearing on the night the crimes were committed.
Scrapings of Appellant’s clothing produced numerous small glass particles, but none
matched the glass fragments found on the Davenport property. Appellant complains
that the evidence that glass particles were found on his clothing should have been
excluded as irrelevant, since those particles did not match the glass fragments gathered
from the crime scene. Appellant did not object to the admission of this evidence at trial.
Since the evidence was more exculpatory than inculpatory, we regard this omission as
a legitimate trial tactic. Sanders v. Commonwealth, KY., 801 S.W.2d 665, 668 (1990)
cert. denied, 502 U.S. 831 (1991); Cosbv v. Commonwealth, Ky., 776 S.W.2d
367, 369
(1989), cert. denied, 493 U.S. 1063 (1990), overruled on other grounds, St. Clair v.
Roark, Ky., 10 S.W.3d
482 (1999). In fact, counsel for Appellant literally “pounced” on
the mismatch during cross-examination of the forensic analyst who testified to it.
At oral argument, Appellant’s primary complaint was that the prosecutor, in his
closing argument, cited the presence of glass particles on Appellant’s clothing as
evidence of his guilt. The prosecutor did not claim that the particles matched the glass
fragments gathered from the crime scene and forwarded to the crime laboratory.
Clearly, there was a lot of broken glass at the crime scene. The absence of a match
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between the glass particles on Appellant’s clothing and the glass fragments sent to the
crime laboratory does not eliminate the possibility that the glass on Appellant’s clothing
came from the Davenport residence. It just eliminates the possibility that the glass on
Appellant’s clothing came from the same objects as the glass fragments sent to the
crime laboratory. The prosecutor did not misstate the evidence with respect to the
glass particles.
VII.
INSTRUCTIONS.
The trial judge instructed the jury on alternative theories of intentional and
wanton murder, KRS 507.020(1)(a) and (b), and on second-degree manslaughter, KRS
507.040, as a lesser included offense. Appellant asserts error in the trial judge’s failure
to further instruct the jury on first-degree manslaughter (intent to injure, but not to kill),
KRS 507.030(1)(a), and reckless homicide, KRS 507.050, as lesser included offenses.
An instruction on a lesser included offense is appropriate if, and only if, on the given
evidence a reasonable juror could entertain a reasonable doubt of the defendant’s guilt
on the greater charge, but believe beyond a reasonable doubt that the defendant is
guilty of the lesser offense. Skinner v. Commonwealth, Ky., 864 S.W.2d 290, 298
(1993); Luttrell v. Commonwealth, KY., 554 S.W.2d 75, 78 (1977).
Appellant’s reliance on Commonwealth v. Wolford, Ky., 4 S.W.3d 534 (1999) is
misplaced. In Wolford, shots were heard and the victims were found dead from
gunshot wounds. The evidence against the various defendants was entirely
circumstantial. We held that “where . . . the evidence is purely circumstantial and does
not conclusively establish [the defendant’s] state of mind at the time he killed the victim,
it is appropriate to instruct on all degrees of homicide and leave it to the jury to sort out
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the facts and determine what inferences and conclusions to draw from the evidence.”
Id. at 539-40.
The Davenports died not from injuries sustained during the robbery, but
from smoke inhalation sustained as a result of the arson. Reid testified that Appellant
intended to set the fire; an accelerant was found at the scene and on the clothing of
one of the victims. We agree with the trial judge that such evidence does not support
an inference that Appellant set the fire with an intent to merely injure the victims, i.e.,
first-degree manslaughter, or that a reasonable person would have failed to perceive
the risk that if he set fire to an occupied residence, the occupants would be killed, i.e.,
reckless homicide.
VIII.
MISCELLANEOUS.
We find no error in the trial judge’s failure to change venue. Though many
prospective jurors had heard about the case, we are unable to conclude that public
opinion in Whitley County was so aroused against Appellant as to preclude a fair trial.
Kordenbrock v. Commonwealth, Ky., 700 S.W.2d 384, 387 (1985), cert. denied, 476
U.S. 1153 (1986) habeas aranted in oar-t on other arounds, Kordenbrock v. Scroaay,
919 F.2d 1091 (6th Cir. 1990), cert. denied, 499 U.S. 970 (1991). “A trial judge’s
decision not to change venue ‘is given great weight because he is present in the county
and presumed to know the situation.“’ Hodae v. Commonwealth, Ky., 17 S.W.3d 824,
835 (2000) (quoting Nickel1 v. Commonwealth, Ky., 371 S.W.2d 849, 850 (1963)
cert. denied, - U.S. -, 121 S.Ct. 581, 148 L.Ed.2d 498 (2000).
Appellant repeats the litany of issues raised in every death penalty appeal, u,
the death penalty is unconstitutional, the jury should have been instructed on “residual
doubt,” that aggravating factors must outweigh mitigating factors, and that unanimity is
-18-
not required when considering mitigating factors, etc. We have consistently held
otherwise and see no reason to repeat our reasons for rejecting these arguments here.
See, a, Tamme v. Commonwealth, supra; McQueen v. Parker, Ky., 950 S.W.2d 226
(1997); Bowling v. Commonwealth, Ky., 942 S.W.2d 293 (1997), cert. denied, 522 U.S.
986 (1997).
Finally, Appellant asserts that absent Joe Reid’s grand jury testimony, there was
insufficient competent evidence to convict him of these crimes and that to retry him
would constitute double jeopardy. However, the issue is not whether Appellant would
have been entitled to a directed verdict of acquittal absent the improperly admitted
evidence, but whether the evidence that was, in fact, admitted was sufficient to take the
case to the jury. Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265
(1988). We conclude that it was. Commonwealth v. Benham, Ky., 816 S.W.2d 186
(1991). It is not our province to determine now whether the Commonwealth can
produce sufficient competent evidence to avoid a directed verdict of acquittal upon
retrial.
Accordingly, the judgments of conviction and sentences imposed by the Whitley
Circuit Court are reversed, and this case is remanded for a new trial in accordance with
the content of this opinion.
Lambert, C.J., Johnstone, Stumbo and Wintersheimer, JJ., concur. Keller, J.,
concurs by separate opinion in which Graves, J., joins.
-19-
COUNSEL FOR APPELLANT:
M. Gail Robinson
513 Capital Avenue
Frankfort, KY 40601
Timothy G. Arnold
Assistant Public Advocate
Department of Public Advocacy
Suite 302
100 Fair Oaks Lane
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
A. B. Chandler, III
Attorney General
State Capitol
Frankfort, KY 40601
Elizabeth A. Heilman
Anitria M. Franklin
Assistant Attorneys General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
-2o-
RENDERED: APRIL 26,200l
TO BE PUBLISHED
1999-SC-0124-MR
APPELLANT
LARRY OSBORNE
V.
APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE PAUL BRADEN, JUDGE
98-CR-006-1
COMMONWEALTH OF KENTUCKY
APPELLEE
CONCURRING OPINION BY JUSTICE KELLER
I agree with the majority that we must reverse Osborne’s convictions because
the trial court allowed the Commonwealth to introduce abundant inadmissible hearsay
statements when it permitted the prosecution to read Joe Reid’s entire grand jury
testimony into the record. I write separately, however, because I believe the majority
adopts an overly narrow construction of KRE 804(b)(3)‘s exception for statements which
“so far tend[] to subject the declarant to civil or criminal liability . . . that a reasonable
person in the declarant’s position would not have made the statement unless believing
it to be true.“’ The majority’s analysis appears to suggest that only those statements
which, standing alone, establish a prima facie case for a criminal offense against the
‘KRE 804(b)(3).
declarant fall within the KRE 804(b)(3) “statements against penal interest” exception.
I
believe that KRE 804(b)(3) contemplates a broader exception to the hearsay rule.
Reid testified before the grand jury that: (1) he was present at the Davenport
residence on the night their lives were taken; (2) he waited outside the Davenport
residence and observed as Osborne eliminated the Davenport’s security lights and
illegally entered the home by breaking a window; (3) he repaired the chain on the
motorbike upon which Osborne had driven them to the residence; (4) he heard
gunshots and screams from inside the home; and (5) that he rode away from the scene
on the motorbike with Osborne. The majority opinion emphasizes that mere presence
at the scene where a crime is committed does not create liability and demonstrates
that, if Reid were merely a bystander, as he claimed, he would have no liability for
facilitation of the crimes.
The “statements against penal interest” exception in KRE 804(b)(3), however, is
not limited to “confessions” or statements which, by themselves, demonstrate criminal
liability. The Kentucky Evidence Rules Study Committee’s commentary to KRE
804(b)(3) emphasizesthat the rule “is widely construed to cover declarations which
would have probative value against declarants in criminal prosecutions,“2 and
Kentucky’s leading evidence scholar, Robert Lawson, observes that “[sltatements
confessing to the commission of crimes are clearly against penal interests by any
standard of measurement. But self-incrimination need not be so absolute in order for a
2KRE 804 (Kentucky Evidence Rules Study Committee Commentary) (emphasis
added).
-2-
statement to aualifv for admission under the exceotion.“3 In United States v. Thomas4
the Fifth Circuit Court of Appeals determined that the language of FRE 804(b)(3)
embraces a class of statements broader than mere confessions:
The government argues that Weeks’ statement was not
against his penal interest because he did not expressly
confess to the crime involved. We do not read Rule
804(b)(3) to be limited to direct confessions of guilt. Rather,
by referring to statements that “tend” to subject the decfarant
to criminal liability, the Rule encompasses . . . statements by
a declarant that would have probative value in a trial against
the declarant5
Many of the statements Reid made in his grand jury testimony would
unquestionably have had probative value in a trial against him. While the majority
correctly observes that evidence of Reid’s presence at the scene of the crime would
not, by itself, establish his guilt of the crime, such an admission would be a valuable
“piece of the puzzle” in a case against him. Likewise, although Reid’s statements,
standing alone, might not demonstrate all of the elements necessary to convict him of a
3Robert G. Lawson, Kentucky Evidence Law Handbook (3rd Ed.) § 8.45 at 425
(Michie 1993) (emphasis added).
4571 F.2d 285 (5’h Cir. 1978).
51d. at 288. See also United States v. Barrett, 539 F.2d 244, 251 (1 st Cir. 1976):
Although the remarks did not amount to a clear confession
to a crime . . . we do not understand the hearsay exception
to be limited to direct confession. A reasonable person
would have realized that remarks of the sort attributed to
Tilley [attributing involvement in the crime to one party and
not another and thereby implying knowledge and
involvement] strongly implied his personal participation in the
crimes and hence would tend to subject him to criminal
liability. Though by no means conclusive, the statement
would be important evidence against Tilley were he himself
on trial for the . . . crimes.
Id.
-3-
criminal offense, they build a strong foundation. A prima facie case for facilitation
against Reid lacks only one element - knowingly providing means or opportunity which
aids the commission of the offense’ - and the Commonwealth could establish through
reasonable inferences that Reid acted as a “lookout” rather than the innocent bystander
he claimed to be.
If just one more ingredient is added to the pot - a culpable mental
state’ -the Commonwealth could prove complicity to murder and arson. In my opinion
many of the statements Reid made during his testimony would tend to expose him to
criminal liability, and I believe those statements came within the scope of KRE
804(b)(3).
I concur in the result reached by the majority because the lion’s share of Reid’s
grand jury testimony does not fall within KRE 804(b)(3), and I agree with the other
errors identified by the majority. Accordingly, I see no reason, at this time, to determine
whether other evidence sufficiently corroborated those statements or to address
Osborne’s constitutional challenge to KRE 804(b)(3). I write separately merely to
express my discomfort with the majority’s narrow construction of the language of the
KRE 804(b)(3) “statements against penal interest” exception.
Graves, J., joins.
6& KRS 506.080(l).
7a KRS 502.020.
-4-
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