MARQUIS DERON HEARD v. COMMONWEALTH OF KENTUCKY
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RENDERED: JUNE 18, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-002494-MR
MARQUIS DERON HEARD
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JOHN R. ADAMS, JUDGE
ACTION NO. 02-CR-00244
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, Chief Judge; TACKETT and VANMETER, Judges.
COMBS, CHIEF JUDGE.
Marquis Heard appeals from the final
judgment of the Fayette Circuit Court which convicted him of
first-degree criminal trespass and second-degree assault.
Heard
argues that the trial court made several errors during his
trial:
the admission of hearsay testimony, the failure to give
an instruction on extreme emotional distress, and the denial of
his motion for a mistrial.
After our review of the record, we
do not agree with his allegations of error.
Thus, we affirm.
The events leading to Heard’s conviction occurred at
the home of Sara Saunders (Saunders), the grandmother of the
victim, Andreal Saunders (Angel).
youngest of Angel’s three children.
Heard is the father of the
On December 11, 2001, Heard
went to the Saunders residence, where Angel was visiting, in
order to speak with Angel.
Aware of tensions between her
granddaughter and Heard, Saunders denied him permission to enter
the home.
Later in the day, when Saunders left to run errands,
Heard returned.
When Angel refused him entry, he knocked the
door off its hinges.
He then assaulted Angel by hitting her in
the head with the butt of a handgun; he left the premises with
their child.
When Saunders returned home at about 6:00 p.m., she
found her granddaughter in a hysterical state, crying and
shouting incoherently.
Angel’s face was covered with blood; her
head wounds were bleeding.
minutes.
Police and paramedics arrived within
Angel told Officer Steve Gilbert that Heard had kicked
the door down and that he hit her in the head with a gun because
she would not let go of her infant child.
child down, Heard took the child.
When she did put her
Before leaving, Heard pointed
the gun at her and told her that the only reason he did not
shoot her was that the gun was broken.
While police and emergency workers were still at the
scene, Saunders received a telephone call from Heard.
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While
police attempted to trace the call, Lieutenant William McCord, a
paramedic, listened to the conversation and heard the appellant
threaten Saunders that he would kill Angel and himself if they
reported the incident to the police.
At that point, police
officers took the phone from Saunders and attempted to persuade
Heard to reveal where he had taken the child.
Heard refused to
speak to the police but agreed to talk with the paramedic.
He
told Lieutenant McCord that he had hit Angel with his fists -but not with a gun.
He refused to tell Lieutenant McCord what
had prompted him to assault Angel nor would he reveal where he
had taken the child.
Angel was taken to the emergency room of Good
Samaritan Hospital.
Dr. Jeff Wicker treated her bruises and the
multiple cuts to her head.
Angel told Dr. Wicker that the cuts
were the result of being struck with a pistol.
Police eventually recovered the child with the
cooperation of Heard’s mother.
Heard was indicted on charges of
first-degree burglary, second-degree assault, and custodial
interference.
His trial was scheduled for September 12, 2002.
On August 29, 2002 and September 5, 2002, the
Commonwealth served Angel with a subpoena commanding her to
appear and to testify at Heard’s trial.
When she did not
appear, the trial court considered granting Heard’s motion for a
dismissal of the charges against him but instead granted the
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Commonwealth’s motion for a brief continuance.
A warrant was
issued for Angel’s arrest.
When Angel did not appear on October 9, 2002, the date
of the second trial, the court allowed the Commonwealth to
proceed against Heard with its circumstantial evidence of the
burglary and the assault.
The custodial interference count of
the indictment was dismissed by agreement of the parties.
The
court also allowed the Commonwealth to introduce Angel’s out-ofcourt statements implicating Heard through various witnesses.
The jury found Heard guilty of first-degree criminal trespass
and second-degree assault; he was sentenced to ten (10) years in
prison.
This appeal followed.
Heard first argues that the trial court violated his
Sixth Amendment right to confront and to cross-examine his
accuser by permitting the Commonwealth to introduce the out-ofcourt statements made by Angel on the evening of the incident
through the testimony of Saunders, Officer Gilbert, and Dr.
Wicker.
He alleges that Angel was not “unavailable” as a
witness within the context of our evidentiary rules so as to
permit such hearsay evidence to be admitted.
He claims that the
Commonwealth acted in bad faith in failing to produce his
accuser at trial.
We conclude that these arguments are without
merit.
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There is no evidence in the record to support Heard’s
claim that the prosecutor failed to act reasonably in attempting
to secure Angel’s presence at trial.
The Commonwealth had
served her with two subpoenas prior to the first trial and
caused an arrest warrant to be issued when she failed to appear.
Under the Kentucky Rules of Evidence (KRE), Angel’s
physical presence was not solely determinative as to the issue
of whether the out-of-court statements could be admitted.
KRE
803 provides that some types of hearsay may be admitted
regardless of the availability of the declarant.
Such
statements –- including excited utterances (KRE 803(2)) and
statements for purposes of medical treatment (KRE 803(4)) -– are
those at issue in this case.
Heard argues that KRE 803 is unconstitutional as
applied in criminal cases because it violates the Confrontation
Clause of the Sixth Amendment to the United States Constitution.
He relies on Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65
L.Ed.2d 597 (1980), for the proposition that “the Confrontation
Clause restricts introduction of otherwise admissible hearsay by
requiring the Commonwealth to demonstrate the unavailability of
the witness.”
(Appellants brief, p. 10).
However, as the
Commonwealth correctly contends, the holding in Ohio v. Roberts
has been undermined by more recent U.S. Supreme Court decisions
that have analyzed admissibility of hearsay in light of the
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Confrontation Clause.
See, United States v. Inadi, 475 U.S.
387, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986), and White v.
Illinois, 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992).
In White v. Illinois, the Court dealt with testimony
falling within the same exceptions to the hearsay rule which as
occurred in the case before us.
The White Court addressed the
identical issue raised by Heard:
whether the Confrontation
Clause requires the prosecution to produce the declarant at
trial or in the alternative to prove the declarant to be
unavailable before admitting testimony under the hearsay
exceptions.
Emphasizing the essential reliability of the
evidence on its own separate and apart from the declarant, the
White Court held as follows:
[W]here proffered hearsay has sufficient
guarantees of reliability to come within a
firmly rooted exception to the hearsay rule,
the Confrontation Clause is satisfied.
We therefore think it clear that the out-ofcourt statements admitted in this case had
substantial probative value, value that
could not be duplicated simply by the
declarant later testifying in court. To
exclude such probative statements under the
strictures of the Confrontation Clause would
be the height of wrongheadedness, given that
the Confrontation Clause has as a basic
purpose the promotion of the “’integrity of
the factfinding process.’” Coy v. Iowa, 487
U.S. 1012, 1020, 101 L.Ed.2d 857, 108 S.Ct.
2798, 2802, (1988) (quoting Kentucky v.
Stincer, 482 U.S. 730, 736, 96 L.Ed.2d 631,
107 S.Ct. 2658, 2662, (1987)). And as we
have also noted, a statement that qualifies
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for admission under a “firmly rooted”
hearsay exception is so trustworthy that
adversarial testing can be expected to add
little to its reliability. [Idaho v.]
Wright, 497 U.S. at 820-821, 111 L.Ed.2d
638, 110 S.Ct. 3149. . . . We therefore see
no basis in Roberts or Inadi for excluding
from trial, under the aegis of the
Confrontation Clause, evidence embraced
within such exceptions to the hearsay rule
as those for spontaneous declarations and
statements made for medical treatment.
Id. 502 U.S. at 356-357.
Accordingly, we hold that the trial
court did not violate Heard’s right of confrontation under the
Sixth Amendment by admitting the victim’s out-of court
statements to her grandmother and her treating physician despite
her absence from the trial.
Heard also argues that the statements made to Saunders
and Officer Gilbert do not properly qualify as excited
utterances under KRE 803.
failing memory.”
He contends that Saunders had “a
Therefore, he challenges whether she could
remember how long after coming home it was that she learned of
Angel’s assault.
(Appellant’s brief, p. 14-15.)
He attacks the
spontaneity of Angel’s statements to Officer Gilbert, claiming
that they were not made automatically and naturally but rather
that they were coerced by the officer’s interrogation of her.
He cites Young v. Commonwealth, Ky., 50 S.W.3d 148 (2001), for
the proposition that “statements made after direct inquiry are
absolutely not admissible as excited utterances.”
-7-
(Appellant’s
brief, p. 16).
Finally, he relies on Crawford v. Washington,
___ U.S. ___, 124 S.Ct. 1354, ___ L.Ed.2d ___ (2004), a decision
rendered after his trial, as requiring a new trial due to the
allegedly erroneous admission of the statements made by Angel to
the police officer which implicated Heard as her assailant.
We find no merit as to the allegation of error
concerning the admission of Saunders’s testimony.
Although we
agree that allowing Officer Gilbert to repeat the statements
Angel made to him constituted a violation of Heard’s Sixth
Amendment rights to confrontation, we believe that under the
facts of this case the admission of this evidence constituted
harmless error.
KRE 803(2) defines an excited utterance as “[a}
statement relating to a startling event or condition made while
the declarant was under the stress of excitement caused by the
event or condition.”
In Jarvis v. Commonwealth, Ky., 960 S.W.2d
466 (1998), the Kentucky Supreme Court set forth the criteria to
be considered in determining whether a statement qualifies as an
excited utterance:
(i)[the] lapse of time between the main act
and the declaration, (ii) the opportunity or
likelihood of fabrication, (iii) the
inducement to fabrication, (iv) the actual
excitement of the declarant, (v) the place
of the declaration, (vi) the presence there
of visible results of the act or occurrence
to which the utterance relates, (vii)
whether the utterance was made in response
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to a question, and (viii) whether the
declaration was against interest or selfserving.
Id. at 470 (quoting Souder v. Commonwealth, Ky., 719 S.W.2d 730,
733 (1986)).
Pursuant to the Jarvis criteria, we conclude that the
trial court correctly allowed Saunders to repeat Angel’s
statements to the jury.
Heard is correct that Saunders did not
recall what time she left her apartment to run errands on the
day in question; nor could she testify exactly how much time had
elapsed between Heard’s forceful entry into her home and her
return.
However, Saunders’s testimony described Angel as
hysterical, crying, incoherent, and still bleeding from the
assault.
The trial court determined that the victim’s
statements implicating Heard were sufficiently close to the time
of her assault in order to qualify as excited utterances.
We
agree and find no error in their admission into evidence as a
proper exception to the hearsay rule.
Officer Gilbert recounted that he was dispatched to
Saunders’s residence at 6:00 p.m. and that he arrived within
three minutes.
He stated that the door of the residence had
been kicked in and that a woman inside the residence had been
assaulted.
He testified that Angel was crying and was very
upset; she was holding her right arm and was bleeding about the
head.
Although he did not witness the assault and was unable to
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establish exactly when it occurred, the trial court found that
Angel’s statements were made close to the time of the assault
and while she was still suffering from the stress of that event.
Contrary to Heard’s contentions, Young v.
Commonwealth, supra, did not create an absolute ban on the
introduction of excited utterances made in response to police
questioning.
Young holds that the characterization of a
statement as an excited utterance “depends on the circumstances
of each case” and that the trial court’s resolution of the fact
issue is entitled to great deference.
50 S.W.3d at 167.
Thus,
the lower court did not err under the state of the law as it
existed at the time of trial when it exercised its discretion to
admit this testimony.
However, the very recent ruling in Crawford, supra,
clearly announces that the admission of testimonial statements
made by an unavailable declarant violates a defendant’s Sixth
Amendment confrontation rights, reinforcing without any doubt
the sacrosanct nature of the Confrontation Clause:
Where nontestimonial hearsay is at issue, it
is wholly consistent with the Framers’
design to afford the States flexibility in
their development of hearsay law – as does
Roberts, and as would an approach that
exempted such statements from Confrontation
Clause scrutiny altogether. Where
testimonial evidence is at issue, however,
the Sixth Amendment demands what the common
law required: unavailability and a prior
opportunity for cross-examination. We leave
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for another day any effort to spell out a
comprehensive definition of “testimonial.”
Whatever else the term covers, it applies at
a minimum to prior testimony at a
preliminary hearing, before a grand jury, or
at a former trial; and to police
interrogations. These are the modern
practices with closest kinship to the abuses
at which the Confrontation Clause was
directed. . . . Where testimonial statements
are at issue, the only indicium of
reliability sufficient to satisfy the
constitutional demands is the one the
Constitutional actually prescribes:
confrontation.
Id. 124 S.Ct. at 1375.
(Emphases added.)
The Court further
explained that it was using the term interrogation in its
“colloquial, rather than any technical legal, sense.”
1365 n.4.
Id. at
Thus, the admission of the nontestimonial statements
made by Angel to her grandmother and to her treating physician
remained admissible under Crawford.
But Crawford dictates that
the admission of her statements to Officer Gilbert implicating
Heard as her attacker should not have been admitted under any
exception to the hearsay rule.
Crawford specifically refrained from addressing
whether the introduction of such hearsay was subject to harmless
error analysis.
Id. at 1359 n.1.
However, we believe that
harmless error analysis is appropriate and that it poses no
impediment to the Confrontation Clause as interpreted by
Crawford.
(1998).
See, Talbott v. Commonwealth, Ky., 968 S.W.2d 76
After reviewing all the evidence presented at Heard’s
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trial, we conclude that those portions of Officer Gilbert’s
testimony which offended Heard’s Sixth Amendment rights were
cumulative with respect to other evidence which was properly
admitted.
The evidence left no question concerning the identity
of the perpetrator of the crime.
Heard acknowledged to
Lieutenant McCord that he assaulted Angel and that following the
assault, he left with Angel’s infant child.
The only remaining
discrepancy concerned the manner in which the assault occurred.
Heard told the paramedic that he hit Angel with his fists; Angel
told her doctor that she was hit with a pistol.
The doctor’s
testimony established that the cuts to Angel’s scalp were not
consistent with lacerations caused by mere fists; rather, he
testified that the wounds were caused by a blunt object.
There
is no reasonable doubt that the outcome would have been any
different even if the trial court’s evidentiary ruling as to
Officer Gilbert’s testimony had been in harmony with the mandate
announced Crawford.
Heard also challenges the court’s ruling allowing Dr.
Wicker to testify to statements made by Angel under the medical
treatment exception to the hearsay rule -- KRE 803(4).
This
rule allows admission of hearsay statements made by the
declarant “for purposes of medical treatment or diagnosis and
describing medical history.”
Heard contends that Dr. Wicker had
no independent recollection of treating Angel and that the
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information of the assault in the doctor’s records was provided
by Officer Gilbert.
The doctor acknowledged that he had only a “vague”
memory of treating Angel.
However, contrary to Heard’s
allegations, Dr. Wicker testified that the information in
Angel’s medical records –- recorded in his own handwriting -–
had been elicited directly from his patient and not from Officer
Gilbert.
Therefore, we find no error in the court’s ruling to
allow Dr. Wicker to testify to statements made by Angel in the
course of her treatment in the emergency room.
Heard next argues that the court erred in failing to
grant his motion for a mistrial during the testimony of
Lieutenant McCord.
While talking with Heard on the phone within
minutes of the assault, the officer made notes of the statements
made by Heard.
The court allowed Lieutenant McCord to read his
notes to the jury, excluding any statements that alluded to
Heard’s previous encounters with the law.
During cross-examination, McCord repeated Heard’s
statement, “Next level, lock-up, will kill Angel.”
Heard’s
attorney asked for a mistrial on the basis that the witness’s
use of the term “lock-up” revealed Heard’s prior criminal record
to the jury.
The trial court denied the motion, and no
admonition or further relief was requested.
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A mistrial should be granted only where manifest,
“urgent or real necessity for such an action” is shown.
v. Commonwealth, Ky., 694 S.W.2d 672, 678 (1995).
Skaggs
A trial court
enjoys broad discretion in deciding whether or not to grant a
mistrial, and its decision will not be disturbed absent an abuse
of that discretion.
Bray v. Commonwealth, Ky., 68 S.W.3d 375
(2002).
It is not apparent from the record that McCord
disregarded an order of the trial court.
The record reveals
only that McCord was instructed not to refer to the fact that
Heard had been previously arrested.
His use of the language at
issue provides no direct reference to Heard’s criminal history
and merely reflects Heard’s style of expression.
It may be that
his criminal context molded his choice of words, but Heard
nonetheless adopted the words as his own.
Their repetition by
the officer does not amount to a violation of the court order;
nor does it require a mistrial.
Heard also alleges that the statement is prejudicial
because it contains a death threat –- although that argument was
not the basis of his motion for a mistrial.
However, Officer
McCord had already testified earlier -- and without objection -that Heard made no fewer than three threats to kill Angel during
the brief telephone conversation.
Thus, this last statement was
cumulative with respect to Heard’s threats to cause further harm
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to Angel.
We find no basis for a mistrial as to this allegation
of error.
Heard next argues that he is entitled to reversal of
his conviction based on the failure of the Commonwealth to
provide him with exculpatory statements made by the victim prior
to trial.
His allegations in this regard are supported by an
affidavit executed by Angel after Heard’s conviction.
In her
affidavit, Angel stated that she made several attempts to
explain to the prosecutor that Heard did not instigate the
assault or hit her with a gun.
In the alternative, Heard
contends that he is entitled to a new trial based on the
contents of Angel’s post-trial affidavit.
Throughout the trial, the prosecuting attorney
maintained that she had not obtained any statements from the
victim recanting the version of the events provided at the time
of the assault.
The Commonwealth continues to argue that it did
not fail to provide Heard with exculpatory evidence.
It cites
Hensley v. Commonwealth, Ky. App., 488 S.W.2d 338, 339 (1972),
for the proposition that the victim’s affidavit should be
“regarded with distrust” and “given little weight.”
We agree
that the trial court was not required to believe Angel’s postconviction affidavit or to afford Heard any relief based on its
contents.
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Heard also complains that the trial court failed to
give an instruction on extreme emotional distress.
The Kentucky
Supreme Court has defined this mitigating element as “a
temporary state of mind so enraged, inflamed, or disturbed as to
overcome one’s judgment, and to cause one to act
uncontrollably.”
McClellan v. Commonwealth, Ky., 715 S.W.2d
464, 468-469 (1986).
Heard argues that the evidence established
that he and Angel were at odds over the issues of custody and/or
visitation of their child.
He states that the fact that he left
with his child after the assault is “a further indication that
the child was the impetus of the events” which transpired.
(Appellant’s brief, p. 21.)
However, the jury found Heard guilty of the lesser
crime of criminal trespass rather than burglary.
Thus, it
apparently accepted Heard’s defense that he had gone to
Saunders’s residence desiring merely to talk to Angel rather
than intending to engage in criminal conduct.
Our review of the
record reveals no evidence to support Heard’s claim that the
jury could reasonably have believed that he committed the
assault while under the influence of an extreme emotional
disturbance.
The sole fact that Heard and his victim were
having a dispute over parenting does not suffice as grounds or a
predicate to warrant an instruction on extreme emotional
disturbance.
Id., at 469.
We find no error in the ruling of
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the trial court that the evidence did not support such an
instruction.
Two arguments remain.
Heard contends that he was
entitled to a directed verdict of acquittal and that he was the
victim of cumulative error.
Our review of the evidence at
trial, much of which we have recounted in this opinion, when
construed most favorably to the Commonwealth, is sufficient to
support Heard’s convictions for criminal trespass and seconddegree assault.
187 (1991).
Commonwealth v. Benham, Ky., 816 S.W.2d 186,
As there is no error affecting Heard’s rights to a
fair trial, his argument as to the existence of cumulative error
must also fail of its own accord.
The judgment of the Fayette Circuit Court is affirmed.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
Matthew W. Boyd
Lexington, Kentucky
BRIEF FOR APPELLEE:
Albert B. Chandler III
Attorney General of Kentucky
Brian T. Judy
Assistant Attorney General
Frankfort, Kentucky
ORAL ARGUMENT FOR APPELLEE:
Brian T. Judy
Frankfort, Kentucky
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