JOHN LOUIS CAVINS, JR. v. COMMONWEALTH OF KENTUCKY
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RENDERED: APRIL 22, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000028-MR
JOHN LOUIS CAVINS, JR.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. CLARK, JUDGE
INDICTMENT NO. 02-CR-01287
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: BARBER, HENRY, AND JOHNSON, JUDGES.
HENRY,
JUDGE:
verdict
and
manslaughter
John
judgment
and
Louis
Cavins,
finding
complicity
him
to
Jr.
appeals
guilty
robbery
of
from
second
first
sentencing him to fifteen (15) years imprisonment.
a
jury
degree
degree
and
Upon review,
we affirm.
The facts of the case relevant to this appeal are as
follows: On the evening of December 26, 2001, Wally Newstead was
shot multiple times and killed in front of his home in a trailer
park located at 1081 New Circle Road in Lexington, Kentucky.
Other residents at the trailer park reported hearing the gun
shots
and
seeing
a
white
car
entering
the
shooting and leaving immediately afterwards.
area
before
the
A number of them
also reported seeing three men wearing dark clothing and masks
walking towards Newstead’s trailer prior to the shooting.
None
of the residents, however, were able to identify at trial any of
the three men involved.
One resident, April Perez, further testified that she
saw Newstead running from his trailer with one man chasing after
him before falling in the street following the gun shots.
The
three men apparently fled the scene in the white car following
Newstead’s collapse.
Perez then went to Newstead to try to
render assistance and found that he had been shot multiple
times.
Newstead made references to “my money” and told Perez
that the three men wanted his money.
When Perez asked him if he
knew who the men were, Newstead told her that he did not know,
and he then died as a result of the multiple gunshot wounds that
he had sustained.
In October 2002, Richard Marshall and his brother,
Aaron “Worm” Marshall, were arrested and questioned in
connection with the subject incident after their names were
given to the police by an apparent eyewitness.
Aaron Marshall
indicated to the police that Richard had told him that he was
planning to rob Newstead, and that he had later told him that he
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was involved in Newstead’s death.
Richard denied being the
person who actually shot Newstead.
On October 4, 2002, Richard Marshall was questioned by
the police about his role in the incident.
He admitted helping
to plan an intended robbery of Newstead with two other
individuals—Richard Houp and Appellant Cavins—and indicated that
they sought to carry out the planned robbery on December 26,
2001.
Marshall stated that Newstead was known to be a drug
dealer who kept quantities of money and pills in his trailer,
and that the plan was to rob him of both.
Houp would take the
pills, while Marshall and Cavins would split the money that they
obtained.
Richard Marshall told the police that he drove his
vehicle to the trailer park on the night of Newstead’s death,
intending to rob Newstead, and that he had brought a mask and
gloves to wear.
He further indicated that Cavins had brought
along a handgun to be used to threaten Newstead, and that a twoliter soda bottle was taped to the gun to act as a makeshift
silencer.
Marshall claimed that he did not know that a gun was
going to be involved in the robbery until the individuals were
on their way to Newstead’s trailer park, and he denied having a
gun of his own.
Newstead.
He also denied that the men intended to shoot
Upon arriving at the trailer park, the three men
walked to Newstead’s trailer, and Houp asked Newstead to open
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the door.
Upon opening the door, Newstead saw the men,
apparently realized that something was afoot, pushed his way
through them, and ran from the trailer.
At this point,
according to Marshall, Cavins began firing shots at Newstead
that ultimately caused him to collapse and fall.
Cavins, Houp,
and Marshall then fled the scene in Marshall’s vehicle without
taking anything from Newstead’s person or home.
Following these interviews, Cavins was brought in for
questioning about the Newstead death.
He made no particular
admissions to the police about his role in the events leading up
to Newstead’s death.
Instead, he asked a number of hypothetical
questions about possible punishments for the crimes in question,
including the death penalty.1
On December 9, 2002, Richard Marshall and Cavins were
indicted by the Fayette County Grand Jury on charges of murder
and first degree robbery.2
Marshall was also indicted on a
felony count of tampering with physical evidence.3
Both
individuals pled “not guilty” to these charges and the matter
1
A recording of this interview with Appellant was played for the jury at the
trial of this matter. The audio of the recording is difficult to understand,
and no transcripts were supplied in the record on review.
2
Richard Houp was not indicted for the subject incident and was apparently
the referenced “eyewitness” to the Newstead killing who had implicated the
Marshall brothers and, eventually, Appellant Cavins. Houp ultimately refused
to testify at the trial of this matter, invoking his Fifth Amendment rights.
3
The jury ultimately found Marshall to be “not guilty” of this offense.
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proceeded to trial, which was conducted from November 3 to
November 13, 2003.
At trial, Richard Marshall testified relatively
consistently with his statements to the police, again admitting
to his part in the intended robbery with Houp and Cavins but
denying that he was the person who shot Newstead.
Cavins did
not testify, instead offering an alibi defense featuring the
testimony of a number of friends and family members.
The jury
found both Cavins and Marshall guilty of second degree
manslaughter and complicity to first degree robbery and
sentenced each man to fifteen (15) years incarceration.
Judgment was entered in accordance with this verdict.
This
appeal followed.
Cavins first argues that the trial court erred in
refusing to admit a statement against penal interest purportedly
made by Richard Houp to his girlfriend, Melissa Robinson.
In
that statement, Houp allegedly identified himself and the
Marshall brothers as the three men involved in the death of
Wally Newstead, implying that Cavins was not involved.
Robinson
was subpoenaed to testify at trial, but she apparently fled the
area before being called to testify and could not be located
prior to the conclusion of trial.
- 5 -
Consequently, the proffered
statement is actually Cavins’ attorney’s summary of Robinson’s
anticipated testimony as to Houp’s purported statement4.
As an initial matter, we cannot perceive how Cavins
intended to introduce the statement, given Robinson’s absence.
Cavins failed to identify another witness through whom this
hearsay would be offered into evidence, or even to specify which
hearsay exception would allow it to be introduced without
Robinson’s testimony.
Unfortunately, neither counsel nor the
trial court addressed this issue in any comprehensive manner.
Nevertheless, assuming, arguendo, that this statement could have
been introduced through another witness or hearsay exception, we
find that the trial court did not err in refusing to admit it
into evidence.
“It is a well-settled principle of Kentucky law that a
trial court ruling with respect to the admission of evidence
will not be reversed absent an abuse of discretion.”
Commonwealth v. King, 950 S.W.2d 807, 809 (Ky. 1997) (citation
omitted).
“The test for abuse of discretion is whether the
trial judge's decision was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.”
Commonwealth v.
English, 993 S.W.2d 941, 945 (Ky. 1995) (citations omitted).
4
Cavins’ brief refers to Robinson’s statement as having been “preserved by
avowal.” There was no avowal, and there could have been none, because
Melissa was absent and Houp asserted his Fifth Amendment privilege. An
avowal under the former rule required a “witness.” See former Kentucky Rule
of Criminal Procedure 9.52, deleted by order of the Kentucky Supreme Court
effective January 1, 2005.
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Accordingly, we will adhere to these standards in reviewing the
trial court’s decision to exclude the evidence in question.
The applicable evidentiary rule for statements against
interest is KRE5 804(b)(3), which provides:
KRE 804(b). Hearsay exceptions. The
following are not excluded by the hearsay
rule if the declarant is unavailable as a
witness:
. . . .
(3) Statement against interest. 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, or to render invalid a claim by
the declarant against another, 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.
“In order for the hearsay exception for statements against penal
interest to apply, the proponent of the statement must show that
the declarant is unavailable.”
Marshall v. Commonwealth, 60
S.W.3d 513, 519 (Ky. 2001) (citing KRE 804(b); Justice v.
Commonwealth, 987 S.W.2d 306, 313 (Ky. 1998)).
“A declarant is
unavailable if he is exempted from testifying by a ruling of the
court on grounds of a privilege.”
Id. (citing KRE 804(a)(1);
Taylor v. Commonwealth, 821 S.W.2d 72 (Ky. 1990)).
5
Kentucky Rules of Evidence.
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Given that
Houp invoked his Fifth Amendment privilege against selfincrimination and indicated that he would not answer any
questions because of that privilege, he was unquestionably
unavailable as a witness under the requirements of KRE
804(a)(1).
See Taylor, 821 S.W.2d at 74.
The rule also requires that the offered statement
against interest be averse to the declarant’s penal interest in
that it would subject him to criminal liability.
Here, the
purported statement by Houp implicated himself and the Marshall
brothers as being involved in the death of Wally Newstead.
Consequently, we are inclined to agree with Cavins that this
requirement of KRE 804(b)(3) is satisfied here.
Of particular relevance in our examination, however,
and the factor upon which the trial court gave the bulk of its
attention, is the last sentence of KRE 804(b)(3), which requires
that “corroborating circumstances clearly indicate the
trustworthiness of the statement.”
See also Crawley v.
Commonwealth, 568 S.W.2d 927, 931 (Ky. 1978) (“Trustworthiness
of a statement against penal interest is a prerequisite to its
admissibility.”).
A number of federal appellate courts, in
interpreting FRE6 804(b)(3), have explicitly held that trial
courts are left with substantial discretion in determining the
sufficiency of corroboration.
6
See, e.g., United States v.
Federal Rules of Evidence.
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Mackey, 117 F.3d 24, 29 (1st Cir. 1997); United States v. Garcia,
986 F.2d 1135, 1139 (7th Cir. 1993).
The trial court here
expressed particular concern over the trustworthiness of the
statement from Houp and, given the facts and arguments presented
at trial, we cannot conclude that the trial court abused its
discretion in rejecting the introduction of the statement
because of this concern.
We note from the record that counsel for Cavins spent
a considerable amount of time in opening argument and in crossexamination of Detective Paul Williams characterizing Richard
Houp as being completely untrustworthy due to the fact that he
apparently gave multiple inconsistent statements to the police
and to two girlfriends (including Robinson) about the events of
December 26, 2001.
Indeed, a sizable portion of Cavins’ defense
appeared to be directed toward discrediting Houp in the event
that he decided to take the stand and testify for the
Commonwealth.
With this being the case, we can easily
understand the trial court’s hesitancy to admit into evidence a
hearsay statement of this nature from a man that counsel for
Cavins took great pains to otherwise label as a liar.
Indeed,
at least one court has held that the existence of conflicting
statements by an unavailable witness whose statement is being
offered under FRE 804(b)(3) indicated a lack of trustworthiness.
See United States v. Groce, 999 F.2d 1189, 1191 (7th Cir. 1993).
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Consequently, we cannot conclude that failing to allow the
introduction of the purported statement made by Houp to Robinson
was an abuse of discretion by the trial court.
Cavins’ second contention is that the trial court’s
failure to allow the introduction of Richard Houp’s purported
statement against interest was unconstitutional in that it
deprived him of a fair trial and his right to present a defense
in his behalf.
The U.S. Supreme Court has long recognized that “state
and federal rulemakers have broad latitude under the
Constitution to establish rules excluding evidence from criminal
trials.
Such rules do not abridge an accused's right to present
a defense so long as they are not ‘arbitrary’ or
‘disproportionate to the purposes they are designed to serve.’”
United States v. Scheffer, 523 U.S. 303, 308 (1998) (citations
omitted).
The Supreme Court has further found “the exclusion of
evidence to be unconstitutionally arbitrary or disproportionate
only where it has infringed upon a weighty interest of the
accused.”
Id. (citations omitted).
The Supreme Court has also
recognized that state and federal governments “unquestionably
have a legitimate interest in ensuring that reliable evidence is
presented to the trier of fact in a criminal trial.”
(citations omitted).
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Id. at 309
Cavins states that his defense was premised on the
fact that he was not involved in the death of Wally Newstead,
but that Houp and the Marshall brothers had implicated him in an
effort to protect Aaron Marshall from prosecution.
Because Houp
invoked his Fifth Amendment rights, Cavins argues that
Robinson’s testimony as to what was told to her by Houp was the
only means of establishing that those other three men committed
the charged offenses.
This, however, does not appear to be the case, as
Cavins put on a number of alibi witnesses, including his mother
and father, who testified that he was somewhere else on the
night of December 26, 2001.
Moreover, because Richard Marshall
and Aaron Marshall both took the stand during the course of the
trial, counsel for Cavins was able to engage in a thorough
cross-examination of both men as to their role in the incident
and as to any efforts to protect Aaron Marshall from
prosecution.
Consequently, Cavins was given ample opportunity
to argue and present his theory of defense even without the
evidence of Houp’s statements to Melissa Robinson.
The fact
that one piece of favorable evidence presented by Cavins was
excluded by the trial court does not mean that he was not given
an ample and fair opportunity to defend himself.
523 U.S. at 316.
See Scheffer,
Furthermore, as discussed above, the trial
court had legitimate concerns about the reliability of the
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offered evidence and decided to exclude it because Haup had
given multiple conflicting statements, a fact repeatedly
emphasized by Cavins himself.
Accordingly, we cannot conclude
that the exclusion of this evidence "significantly undermined
fundamental elements of the defendant's defense” so as to merit
a reversal here.
Beaty v. Commonwealth, 125 S.W.3d 196, 206-07
(Ky. 2003) (citation omitted).
Cavins’ final contention is that the trial court erred
in failing to give an “attempted robbery” instruction.
As
grounds for its decision not to give such an instruction, the
trial court relied upon the case of Kirkland v. Commonwealth, 53
S.W.3d 71 (Ky. 2001), finding the facts of that case analogous
to the situation at hand.
The Commonwealth urges us to follow
Cavins, however, contends that Kirkland is
this decision here.
distinguishable.
In Kirkland, two men entered a liquor store intending
to rob the owner.
A surveillance camera in the store showed
that as one man went to take money from the cash register, the
other fired a shot that passed through the register and struck
the owner.
money.
73.
Both men then fled the scene without taking any
The store owner died as a result of the gunshot.
Id. at
At trial, Kirkland testified in his own defense and
admitted that he and his accomplice entered the store in order
to take the money from the owner.
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Id. at 76.
In finding that
no “attempted robbery” instruction needed to be given under
these facts, the Kentucky Supreme Court held: “All the evidence
indicates that McKee and Kirkland entered the store with a gun
in order to steal money from the victim.
accomplished at that point.
‘attempt.’
The robbery was
There was no evidence of any
Under the totality of the evidence, there was no
basis for an attempt instruction.”
Id. (citing Commonwealth v.
Collins, 821 S.W.2d 488 (Ky. 1991)).
In addressing this issue, we first note that a
conviction of first degree robbery does not require that
something be taken from the alleged robbery victim; that is, it
does not require a completed theft.
See Wade v. Commonwealth,
724 S.W.2d 207, 208 (Ky. 1986) (citations omitted); Lamb v.
Commonwealth, 599 S.W.2d 462, 463-64 (Ky. 1980) (citations
omitted).
Accordingly, the fact that nothing was actually taken
from Newstead in this case is of no consequence.
The testimony given by Richard Marshall at trial
indicated that he and two other individuals, whom he named as
Cavins and Houp, went to Newstead’s home with the intention of
stealing money and pills from him.
The evidence indicates that
when Newstead saw the three men at his door, he clearly
perceived a threat, attempted to flee, and was shot to death.
He subsequently made a dying declaration that the men were after
his money.
We agree with the trial court that an “attempted
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robbery” instruction was unnecessary here for the same reasons
given in Kirkland.
“attempt” to rob.
There is nothing in the record to support an
If the robbery was not completed at the
moment the three men confronted Newstead at his home dressed in
masks and dark clothing while armed with a gun, it certainly was
when Newstead was shot and killed only moments after this
confrontation after attempting to flee.
Accordingly, we do not
believe that the trial court erred in failing to give an
“attempted robbery” instruction.
For the foregoing reasons, the judgment of the Fayette
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
David A. Franklin
John Kevin West
Lexington, Kentucky
Gregory D. Stumbo
Attorney General
George G. Seelig
Assistant Attorney General
Frankfort, Kentucky
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