BENJI A. STOUT v. COMMONWEALTH OF KENTUCKY
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RENDERED: August 11, 2000; 2:00 p.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002456-MR
BENJI A. STOUT
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE SHEILA R. ISAAC, JUDGE
ACTION NO. 97-CR-00847
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, JOHNSON AND McANULTY, JUDGES.
JOHNSON, JUDGE: Benji A. Stout appeals from the judgment and
sentence imposed by the Fayette Circuit Court on September 21,
1998, following his conditional plea of guilty to two counts of
receiving stolen property over $3001, both Class D felonies, and
to three misdemeanor charges, including receiving stolen property
under $300,2 possession of a handgun by a minor,3
1
and resisting
Kentucky Revised Statutes (KRS) 514.110.
2
This was a felony charge that was amended to a misdemeanor
offense.
3
KRS 527.100.
arrest.4
Pursuant to his plea agreement, Stout has appealed his
transfer to circuit court and argues that the waiver was invalid
for the following reasons: (1) that the waiver statute is
constitutionally infirm; (2) that he could not be waived to
circuit court on anything less than a clear and convincing
standard of proof; (3) that the district court abused its
discretion in finding that transfer to circuit court was
appropriate; and (4) that the district court’s refusal to
consider a psychological evaluation constituted reversible error.
Since we find no merit to these arguments, we affirm.
The charges against Stout stem from events which
occurred in May 1997, when Stout was 17 years old.
Police
officers had located and placed under surveillance a 1994 Jeep
Cherokee that had been reported stolen.
On May 27, 1997, Stout
was observed by officers getting out of another stolen vehicle, a
1995 Chevrolet Blazer, and into the Jeep.
Stout attempted to
start the vehicle, but was unsuccessful as the officers had
disabled the car by removing its fuel pump.
Before officers
could reach the vehicle, Stout locked himself in the Jeep.
When
Stout was finally removed from the car, he attempted to bite the
officers and kicked and spit at them.
After he was handcuffed,
the officers found a loaded .38 caliber revolver in Stout’s
pants’ pocket.5
4
KRS 520.090.
5
The discovery of Stout’s fingerprints in another stolen
vehicle recovered by police earlier in May 1997, linked Stout to
yet another vehicle related crime of receiving stolen property.
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On June 16, 1997, a transfer hearing was held in the
Juvenile Division of the Fayette District Court to determine
whether Stout should be treated as a youthful offender.
At the
conclusion of the hearing, the district court stated its findings
in support of transferring Stout to circuit court as a youthful
offender:
I do believe that it is appropriate now that
the case be transferred and that [Stout] be
tried as a youthful offender. I believe that
the offenses that have been committed are
serious enough to warrant that. I
acknowledge that the two offenses were
against property as opposed to against
persons, but I believe that Mr. Stout is
mature enough to understand the consequences
of his actions. His prior record clearly
indicates that he has had a prior felony
offense, two felony offenses here today. I
think the likelihood that he, if he were
released to the community that he would
continue to commit serious offenses is very
great at this point. Based on his total
disregard of the terms and conditions that
have been previously set for him under
probation is [inaudible]. Whether he has
done time or not, I believe that the
Commonwealth has established probable cause
that the offense was committed and the child
committed this offense and falls under KRS
635.020. The child is over 16 and I’m
ordering that the charges be transferred to
the Fayette Circuit Court and that he be
tried as a youthful offender. The
Commonwealth has met the burden of proof.
After Stout was arraigned in Fayette Circuit Court, he
filed a motion to dismiss the indictment and to remand the case
to juvenile court.
Stout argued that the transfer was invalid as
the district court had not articulated the standard of proof it
had employed in making its decision to transfer, and that
regardless of the standard the requirements for transfer had not
been met.
In its September 30, 1997 order, the Fayette Circuit
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Court rejected Stout’s argument that the district court was
required to utilize any particular standard of proof.
However,
it did determine that the district court’s findings were not
sufficiently delineated in order “to permit a meaningful review,”
and remanded the matter to district court for “more complete and
specific findings” with respect to the factors contained in KRS
640.010(2)(b) 4, 5, 6, and 7, and to make a statement as to each
“even if that consists of one sentence. . .”
Finally, the
circuit court held that the evidence on the issue of Stout’s
prior felony adjudications was insufficient and ordered that
additional evidence be heard to establish the existence of those
adjudications.
At the second transfer hearing, conducted on November
19, 1997, the clerk of the court testified that on November 11,
1996, Stout pled guilty to receiving stolen property over $300, a
felony, and on February, 7, 1997, two months prior to the current
charges, he pled guilty to a charge of burglary in the first
degree, also a felony offense.
The Commonwealth called a
juvenile service specialist to testify concerning the programs
the juvenile system would be able to offer Stout, particularly
since Stout at that time was just a month shy of being 18 years
old.
This witness also testified that although Stout had had
frequent contact with juvenile court, he had not been offered any
rehabilitative services as a result of that prior contact.
Stout
attempted to introduce a psychological report that was prepared
by a licensed clinical social worker after the original hearing,
but the district court refused to allow the report to be
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admitted.
The district court stated that the purpose of the
hearing on remand “was very specific,” and that it was “not going
to hear any new evidence that was not presented before”--that it
was not going to allow Stout “a second bite of the apple.”
In support of its renewed decision to transfer Stout to
circuit court to be prosecuted as a youthful offender, the
district court noted that in addition to the two prior felony
adjudications, Stout had “an extensive court record with a
variety of other charges that have been brought before the
court.”
It further articulated the following findings:
I think that when we are dealing with a
child who has had extensive exposure to the
court system and who is very, very close to
his 18th birthday as Mr. Stout is, that we’re
continuing to weigh the balance between you
know, what we can do to try to rehabilitate
this child and what we can, what we need to
do and must do to protect the community. And
I find it very offensive that while these
other charges, very serious charges are
pending that Mr. Stout goes out and is
involved in another offense which he has
admitted to.6 To me that is an indication of
a, his lack of interest in trying to be
involved in or participate in his own
rehabilitation, if that were an option. And
I think that we are to the point where the
value [sic] and protecting the community is
greater than, it’s risen to the level that we
need to protect the community. Mr. Stout
doesn’t seem to care too much about
himself[.] Circuit Court can make a
determination on what’s appropriate for
him[,] but I think it’s in the best interest
of the community certainly that he have
consequences as an adult. It may be in his
6
While Stout was out on bond set by the circuit court for
the charges involved in the case sub judice, he was charged with
burglary in the second degree. He stipulated his guilt to an
amended charge of receiving stolen property under $300 in
juvenile court, the disposition of which was pending at the time
of the second transfer hearing.
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best interest to get his attention at this
point in life so that we hope that he will
not continue to re-offend as an adult. I
think that even if he is in the adult system,
if he is convicted of these charges at the
Circuit Court level, there are still many,
many opportunities for rehabilitation that
are available to adults through the adult
system. That those resources would be
available to him, I don’t know why he in
particular has not moved through the system
quicker, I mean I can’t explain that. There
may be a variety of reasons as to why he may
not have been able to be helped. But it
hasn’t occurred. Maybe he didn’t do, maybe
if he just didn’t get in as much trouble as
he could have, up to this point and we’re
down to the last couple of months of his
minority and I’m not going to let that be a
factor. I think that it’s appropriate that
it goes on up. I think on the prior order
the clarification indicated as to subsection
4 of the statute and the child’s prior
record, there are two prior felonies that
have been testified to. I do believe that
the offenses that he was charged with today,
I consider them to be serious offenses. One
of which involved possession of a handgun and
as to subsection 5, I think I’ve addressed
that issue that I believe that it’s in the
best interest of Benji and the community that
this case be transferred to Circuit Court.
The prospects of adequate protection of the
statute, what concerns me quite honestly is
that while this was pending Benji re-offended
so the public was not protected even though
the process was in place and I think he was
out on bond on the other offense still reoffending, so we as a system are not able to
protect the public. The likelihood is
greater that we can protect the public if
this case is transferred to Circuit Court.
And I think that the likelihood of him [sic]
being able to use the rehabilitation services
that are available through the juvenile court
system are just pretty slim at this point in
view of his age. It may be too little, too
late from the stand-point of using those
resources, but I’m just not willing to back
down on what my original opinion was in this
case. I think that I have clarified those
points and I will issue a new amended
transfer hearing order which will be sent to
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the Circuit Court and let the case proceed
accordingly.
After the second order was entered transferring
jurisdiction to circuit court, Stout again sought to have his
case remanded to the district court and argued that he did not
meet the criteria for transfer.
Stout attached to his motion a
copy of the psychological evaluation which the lower court had
refused to consider.
At the hearing on the motion to dismiss in
June 1998, the circuit court remarked that the district court
judge had taken “great pains to explain why she did what she
did,” and concluded that the order was neither arbitrary nor an
abuse of discretion.
On August 25, 1998, Stout pled guilty to the various
pending charges, as well as to other offenses committed in June
1998, after his 18th birthday which are not the subject of this
appeal.7
He was sentenced to serve one year on each of the two
felony convictions of receiving stolen property over $300, with
the sentences to run consecutively with each other, and 12 months
each on the handgun conviction and a misdemeanor conviction of
receiving stolen property, and 90 days for the resisting arrest
conviction.
The latter sentences were run concurrently with the
sentences imposed for the two felony convictions.
Finally, Stout
was ordered to be placed in the custody of the Juvenile Justice
7
These offenses included criminal possession of a forged
instrument, wanton endangerment in the second degree, and
possession of marijuana.
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Department to be placed in a treatment program until his 19th
birthday.8
This appeal followed.
It is axiomatic that a juvenile offender has no
constitutional right to be tried in juvenile court.9
In our
Unified Juvenile Code,10 our Legislature has created a scheme in
which most juvenile offenders are proceeded against in the
juvenile division of district court.11
However, our Legislature
has recognized that not all juvenile offenders should be
proceeded against in juvenile court and, accordingly, the scheme
it enacted provides for both automatic12 and discretionary13
transfer of certain juvenile offenders to circuit court.
In the
case sub judice, since Stout was charged with two Class D
felonies, was at least 16 years old, and because he had
8
The record does not reveal what sentence Stout received
upon the re-sentencing required to be conducted upon his 19th
birthday.
9
See Woodward v. Wainwright, 556 F.2d 781, 785 (5th
Cir.1977), cert. denied, 434 U.S. 1088, 98 S.Ct. 1285, 55 L.Ed.2d
794 (1978) (“[T]reatment as a juvenile is not an inherent right
but one granted by the state legislature, therefore the
legislature may restrict or qualify that right as it sees fit, as
long as no arbitrary or discriminatory classification is
involved.”)
10
KRS Chapters 600 through 645.
11
KRS 635.020(1).
12
KRS 635.020(4) provides for automatic waiver of district
court jurisdiction of a child who is at least 14 years old who is
“charged with a felony in which a firearm was used in the
commission of the offense.”
13
KRS 635.020(3) and (4) provide that a minor charged with a
felony offense may be transferred to circuit court and prosecuted
as youthful offenders, depending on the class of felony with
which he is charged, his age, and/or his previous contacts with
the juvenile justice system.
-8-
previously “been adjudicated a public offender for a felony
offense,”14 it was within the discretion of the district court to
transfer him to circuit court.
KRS 640.010(2)(b) sets out the criteria the district
court must consider in determining whether to transfer a juvenile
as a youthful offender.
At a minimum, the district court must
consider:
1. The seriousness of the alleged offense;
2. Whether the offense was against persons
or property, with greater weight being given
to offenses against persons;
3. The maturity of the child as determined
by his environment;
4. The child’s prior record;
5. The best interest of the child and
community;
6. The prospects of adequate protection of
the public;
7. The likelihood of reasonable
rehabilitation of the child by the use of
procedures, services, and facilities
currently available to the juvenile justice
system; and
8. Evidence of a child’s participation in a
gang.15
At the time of Stout’s original hearing, subsection (2)(c) of
this statute provided that if the court was “of the opinion,
after considering the factors enumerated in subsection (b)” that
the child should be transferred, it “shall issue an order
transferring the child as a youthful offender.”16
14
KRS 635.020(3).
15
The factor contained in KRS 640.010(2)(b)8., concerning
gang participation, was added to the list effective July 15,
1998, and thus was not considered in the case sub judice.
16
The statute was amended effective July 15, 1998, to
provide for discretionary transfer if the district court finds
“two (2) or more of the factors . . . are determined to favor
(continued...)
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As Stout points out, the statute does not set forth the
standard of proof that governs the district court’s determination
on the issue of transfer, or the weight to be given the various
factors.
Stout’s initial argument in this appeal is that KRS
640.010(2)(b), violates Sections 2 and 11 of the Kentucky
Constitution because it does not provide for a “clear and
convincing” standard of proof.
Stout contends that
[b]ecause the transfer hearing affects
the minor’s liberty interest, and because the
hearing is a matter of critical importance
which affects the rights of the minor, the
court must be held to a higher standard of
review in order to assure that fundamental
fairness is guaranteed and that any arbitrary
and capricious application of the law is
avoided.
Any lesser standard, he argues, subjects the transfer hearing “to
an unreliable factfinding process.”
The Commonwealth insists
that such a high standard of proof is not necessary because there
“already exists sufficient procedural and constitutional
safeguards to protect a juvenile defendant’s constitutional
rights.”
Both Stout and the Commonwealth rely on Kent v. United
States,17 the seminal case concerning the transfer of
jurisdiction in juvenile cases.
Stout relies upon the United
States Supreme Court’s characterization in Kent of a transfer
hearing as a “critically important” stage of the juvenile court
16
(...continued)
transfer.”
17
383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966).
-10-
process.18
Clearly, the Supreme Court’s holding in Kent requires
a state’s statutory scheme for transfer of a juvenile to adult
court to provide a degree of procedural regularity that comports
with “the essentials of due process and fair treatment.”19
The
Commonwealth contends that this state’s statutory scheme for
transfer of jurisdiction complies in every respect with the
procedural due process requirements mandated by Kent.
Certainly, Kent does not require a statutory scheme to
provide for any particular standard of proof.
Indeed, in Breed
v. Jones,20 the United States Supreme Court specifically
discussed its holding in Kent, and remarked that it had “never
attempted to prescribe criteria for, or the nature and quantum of
evidence that must support, a decision to transfer a juvenile for
trial in adult court.”21
Thus, the fact that a transfer hearing
is “critically important,” does not necessarily require a
18
Id., 383 U.S. at 556, 16 L.Ed.2d at 94.
19
Id., 383 U.S. at 562, 16 L.Ed.2d at 98.
20
421 U.S. 519, 537, 95 S.Ct. 1779, 1790, 44 L.Ed.2d 346,
360 (1975).
21
Breed, which concerned a double jeopardy challenge by a
juvenile adjudicated to be guilty in juvenile court and then
transferred to adult court, held:
We require only that, whatever the relevant
criteria, and whatever the evidence demanded,
a State determine whether it wants to treat a
juvenile within the juvenile court system
before entering upon a proceeding that may
result in an adjudication that he has
violated a criminal law and in a substantial
deprivation of liberty, rather than subject
him to the expense, delay, strain, and
embarrassment of two such proceedings.
-11-
particular evidentiary standard, much less the standard of clear
and convincing proof, in order to comport with traditional
notions of due process.
“Under Kentucky law no less than under federal law, the
concept of procedural due process is flexible.”22
In determining
which standard of proof is appropriate in any particular context,
our Courts, and the United States Supreme Court, have utilized
the due process analysis set forth in Mathews v. Eldridge.23
Mathews articulates three factors whose consideration is required
by “the specific dictates of due process”: (1) “the private
interest that will be affected by the official action”; (2) “the
risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or
substitute procedural safeguards”; and (3) “the Government’s
interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute
procedural requirement would entail.”24
Under this analysis, the private and governmental
interests are easy to discern.
A juvenile offender subject to
waiver, such as Stout, clearly has a substantial interest in
maintaining his status as a juvenile, in part because of the
privacy afforded an adjudication in the juvenile court, but more
22
Smith v. O’Dea, Ky.App., 939 S.W.2d 353, 357 (1997).
23
424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). See
Commonwealth v. Raines, Ky., 847 S.W.2d 724 (1993) and Shaw v.
Seward, Ky.App., 689 S.W.2d 37, 39 (1985).
24
Mathews v. Eldridge, supra, 424 U.S. at 335, 96 S.Ct. at
903, 47 L.Ed.2d at 33.
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importantly, because of its potential for a lesser punishment.
As recognized by our Supreme Court, a wavier order “can make the
difference between a brief period of regenerative treatment and
life imprisonment or even death.”25
On the other hand, the
Commonwealth wants to ensure that a juvenile offender receives
the appropriate rehabilitation treatment.
This is reflected in
the Legislature’s stated intent that “[a]ny child brought before
the court under KRS Chapters 600 to 645 shall have the right to
treatment reasonably calculated to bring about an improvement in
his condition.”26
Additionally, the state has a compelling
interest in protecting the public from a juvenile who will not be
helped by the juvenile justice system, as demonstrated, for
example, by his previous exposure to juvenile court.
Finally in regard to the Mathews test, we believe the
risk of erroneous deprivation is minimal due to the well honed
statutory framework guiding the district court in making a waiver
determination.
The specific factors set forth in KRS
640.010(2)(b) direct the court’s focus on individual juveniles to
“ensure individualized consideration of the maturity and moral
responsibility of 16- and 17-year-old offenders before they are
even held to stand trial as adults.”27
Thus, we are unconvinced
that the transfer scheme is unconstitutional because it does not
25
Buchanan v. Commonwealth, Ky., 652 S.W.2d 87, 88 (1983).
26
KRS 600.010(d).
27
See Stanford v. Kentucky, 492 U.S. 361, 375, 109 S.Ct.
2969, 2978, 106 L.Ed.2d 306, 322 (1989)(imposition of capital
punishment on juveniles convicted of murder held not to
constitute cruel and unusual punishment).
-13-
provide for a standard of proof.
Obviously, the decision must be
supported by substantial evidence to pass judicial review;
however, no greater standard need be applied.
Indeed, the
transfer scheme evinces the Legislature’s intent that the
district court judge have considerable discretion in balancing
the needs of the juvenile with those of society.28
The
imposition of a clear and convincing standard of proof would
significantly reduce the discretion of the district court and
therefore conflict with that intent.
We hold that the statutory scheme established for the
discretionary transfer of juvenile offenders to circuit court is
not constitutionally infirm or violative of a juvenile’s due
process rights because it neglects to provide a standard of
proof, much less the standard of clear and convincing proof.
Stout’s reliance on Santosky v. Kramer,29a case concerning the
termination of parental rights, and Addington v. Texas,30which
concerned the standard of proof required to satisfy due process
in a civil commitment proceeding, is misplaced.
The private
interests at stake in those cases are not sufficiently analogous
to those involved in a juvenile transfer hearing.
Stout
overlooks the fact that a transfer hearing does not resolve the
issue of his guilt or innocence, or set his punishment, if any,
but merely determines the jurisdiction to resolve the charges
28
See Pevlor v. Commonwealth, Ky., 638 S.W.2d 272 (1982),
cert. denied 459 U.S. 1149, 103 S.Ct. 794, 74 L.Ed.2d 998 (1983).
29
455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).
30
441 U.S. 418, 99 S.Ct.1804, 60 L.Ed.2d 323 (1979).
-14-
against him.31
Even if we agreed with Stout’s assertion that his
interest in remaining in juvenile court is “a most precious
personal interest,” that interest pales in comparison to the loss
of a parent’s fundamental liberty interest in the care and
custody of his child, or the loss of liberty and other “adverse
social consequences” suffered by a person confined to a mental
hospital for an indefinite period of time.32
In short, Stout was
afforded the “essentials” of due process as required by Kent.
Next, Stout contends that at a bare minimum the
district court’s transfer order was not supported by substantial
evidence.
In particular, he challenges the finding by the
district court that the transfer was in his best interest.
Having reviewed the record, which includes a transcript of both
hearings, and the district court’s findings, set out verbatim
earlier in this opinion, we conclude that there is substantial
evidence to support the district court’s transfer decision.
While the evidence establishes that Stout’s two felony
charges were Class D felonies, which is the least serious degree
of crime to qualify for waiver; and that the two charges of
receiving stolen property involved motor vehicles, obviously
crimes against property and not people, he was also charged with
31
See Buchanan, supra, at 88, where the Court observed that
“an order waiving jurisdiction does not restrain a juvenile of
his liberty, or place him in the custody of any institution, or
fine or punish him in any manner. The wavier order addresses
only the question of jurisdiction to deal with the charge against
the juvenile. . . . It is the charge against the juvenile that
restrains his liberty and not the order establishing that circuit
court shall deal with him.”
32
Addington, supra 444 U.S. at 426, 60 L.Ed.2d at 331.
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two misdemeanors; and the record reflects that despite Stout’s
considerable exposure to juvenile court, his criminal misconduct
was escalating.
Furthermore, while these charges were pending,
Stout was involved in yet another burglary.
Stout takes great exception to the district court’s
finding with respect to his best interest.
He argues that
“[t]here is absolutely no case which could be found that supports
the notion that the best interest of a child is promoted through
‘getting their attention’ by moving the child improperly into the
adult system of justice.”
The district court was of the opinion,
given the number of times Stout had appeared in juvenile court,
that nothing short of waiver to circuit court would convince
Stout that his criminal conduct could have serious consequences
both for himself and his victims.
The district court noted that
although Stout’s crimes had so far been directed towards
property, Stout carried a loaded handgun in his pocket and had
the capability of causing serious harm to people.
The record
clearly supports the district court’s concern for Stout and the
public.
Finally, Stout alleges that the district court’s
refusal to consider the evaluation prepared by Joy Kokernot,
after the case was remanded by the circuit court constitutes
reversible error.
While Stout argues that ”a psychological
report concerning a child’s development is one of the most
relevant pieces of evidence that the court could possibly
consider,” he made no attempt to obtain such evidence to offer at
the original transfer hearing.
Instead, Stout did not obtain the
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evaluation until after the circuit court remanded the matter for
additional findings.
The circuit court did not order the
district court to conduct a new hearing on all issues, but rather
directed that the district court clarify its findings, and hear
evidence on the sole issue of Stout’s prior felony adjudications
in juvenile court.
While it was within the district court’s
discretion to have allowed the introduction of other evidence, we
know of no authority that required it to consider new evidence
that could have been presented earlier.
Further, we have examined the psychological evaluation
and conclude that even if error did occur in this regard, it was
harmless.
Despite Stout’s allegation that the evaluation
contained relevant evidence, we found no evidence in the report
that was not provided at the original hearing.
Indeed, the
evaluation essentially repeats the theory articulated by Stout’s
mother at the original transfer hearing, that is, that Stout’s
criminal conduct is the result of his family’s move to Lexington
from Paris, Kentucky in 1995, and his desire to fit in with his
There was nothing new33 or insightful in the
new peers.
evaluation that would have affected the outcome of the hearing
had it been admitted.34
Accordingly, the judgment of the Fayette Circuit Court
is affirmed.
33
For example, the evaluation states that Stout completed a
Multiphasic Personality Inventory-2 but it does not state the
results of the test.
34
See McQueen v. Commonwealth, Ky., 393 S.W.2d 787, 790
(1965) (failure to admit cumulative evidence constituted harmless
error).
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Suzanne A. Hopf
Frankfort, KY
A.B. Chandler, III
Attorney General
Vickie L. Wise
Asst. Attorney General
Frankfort, KY
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