GARY BROOKS V. COMMONWEALTH OF KENTUCKY
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RENDERED : SEPTEMBER 18, 2003
TO BE PUBLISHED
AuprMt (90urf of
2001-SC-0458-MR
APPELLANT
GARY BROOKS
V.
APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE STEPHEN HAYDEN, JUDGE
99-CR-00018
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE WINTERSHEIMER
AFFIRMING
This appeal is from a judgment based on a jury verdict which convicted Brooks of
criminal attempt to commit murder, first-degree robbery and two counts of seconddegree unlawful transaction with a minor. He was found to be a second-degree
persistent felony offender and his sentence was enhanced to a total of 70 years in
prison .
The questions presented are whether the trial judge correctly permitted
videotaped testimony from an incarcerated witness ; whether the audiotape of the
statement made by the witness to police was admissible ; whether the closing argument
by the prosecutor was improper; whether the victim suffered serious physical injury and
whether the trial judge allowed too much of a description of the prior misdemeanor
convictions of Brooks into the sentencing portion of the trial.
The evidence at trial indicated that Brooks, acting in complicity with others,
including Wood and her minor son, robbed a cab driver. Brooks used a knife to cut the
throat of the cab driver, and during the struggle that followed, he also slashed and
stabbed the cab driver in the face and on his hands and arms . Subsequently, an
informant contacted the police and told them that he had been present when Brooks
planned the crime and that Brooks showed him a sum of money and told him that he
and the others committed the robbery. This informant then assisted the police by
wearing a wire and obtained incriminating statements from Wood and her minor son .
The cab driver/victim positively identified Brooks at trial.
Brooks testified in his own defense and denied planning or committing the
robbery. He testified that the other individuals, including the informant, had committed
the robbery and that Wood framed him because he refused to marry her on several
occasions. He also denied telling the informant that he committed the robbery or
driving him to the scene of the occurrence . After two mistrials, Brooks was convicted of
attempted murder, first-degree robbery and two counts of unlawful transaction with a
minor. As a second-degree persistent felony offender, he was sentenced to a total of
70 years in prison . This appeal followed .
I . Prior Videotaped Testimony
Brooks argues that the trial judge erred to his substantial prejudice and denied
him the right to confront witnesses against him when he declared that an incarcerated
witness who had recently attempted suicide was unavailable and permitted the prior
videotaped testimony of that witness to be shown to the jury in lieu of her live testimony .
We disagree .
At a pretrial hearing the day before the scheduled trial, the prosecutor advised
the trial judge that Mary Wood, an incarcerated witness, had attempted suicide and
would not be available to testify at trial. The Commonwealth filed a motion in limine to
be allowed to play the videotape of Wood's testimony from an earlier trial of Brooks in
lieu of her being present at the third trial in person . The Commonwealth was allowed to
play the videotape of the testimony from the September 20, 2000 trial which had ended
in a mistrial . At the earlier trial, Wood was called by the prosecution and recalled by the
defense. The earlier trial involved the same defendant and the same offense on the
same charges . The Commonwealth relied on RCr 7 .20 and RCr 7.22 which permit the
use of previous trial testimony where a witness is unavailable . Defense counsel
objected claiming that the evidence did not comport with the hearsay exception under
KRE 804(b)(1) and that the defense did not believe Mary Wood was legally unavailable .
He claimed that the unavailability was due to the inaction of the Commonwealth in not
preventing the suicide attempt . The trial judge rejected the defense arguments and
found that the witness was unavailable and that such unavailability was not caused by
the Commonwealth .
Brooks also objected to the finding as to unavailability asserting that the
Commonwealth had presented no physical evidence with regard to her illness . The
Commonwealth then presented a sworn affidavit from the prosecutor about the
information he had obtained noting that the affidavit also contained the telephone
numbers of persons he had spoken to at the Kentucky Correctional Institute for
Women. The defense countered that it did not believe the affidavit was sufficient and
the trial judge asked if defense counsel would like, on the record, to telephone either or
both of the prison officials listed in the affidavit to determine if the facts asserted were
correct. Defense counsel declined to do so . After further discussion, the trial judge
himself telephoned the prison during the in-chambers hearing in order to corroborate
the affidavit and to ascertain the apparent condition of the witness. Neither party
objected to the trial judge speaking to the representatives at the prison . The trial judge
spoke to an officer at the prison who verified the circumstances that the prosecutor had
reported . The officer also stated that although they could transport Wood and would
follow any order of the court in that regard, it would be against medical advice and that
the prison did not want the potential liability in the event that anything happened to
Wood.
Following this conversation, the trial judge found that based on the affidavit of
the prosecutor and his personal contact with the correctional facility personnel that the
witness was unavailable for trial. Defense counsel told the court that he might, after
consulting with Brooks, seek a continuance .
The following morning, the trial judge conducted another in-chambers meeting,
this time with Brooks present, and ruled that he would allow the playing of the prior
testimony. The trial judge also inquired directly of Brooks if he wanted a continuance in
the light of his ruling . Brooks stated that he did not. There was no formal motion made
for a speedy trial . Consequently, this issue was waived .
The trial judge properly exercised his sound discretion in determining that Mary
Wood was unavailable to attend or testify because of sickness or infirmity pursuant to
RCr 7.20(1). Such a decision is within the sound discretion of the trial judge . See
Lovett v. Commonwealth , Ky., 103 S.W .3d 72 (2003); see also Ruppee v.
Commonwealth , Ky., 821 S .W .2d 484 (1992), citing Carter v . Commonwealth , Ky., 782
S .W.2d 597 (1990). Such a determination will not be reviewed unless the decision of
the trial judge is clearly unreasonable . Ruppee , supra . A careful review of the record
here shows that the decision of the trial judge was not clearly unreasonable. The trial
judge correctly concluded that there had been a sufficient showing as to the
unavailability of Wood because of health concerns . See Bruce v. Commonwealth , Ky.,
441 S .W .2d 435 (1969).
Any concerns for the confrontation clause lack merit. There is an exception to a
defendant's constitutional right to be confronted with the witnesses against him where a
witness is unavailable and has given testimony at previous judicial proceedings against
the same defendant which was subject to cross-examination by that defendant. Barber
v. Page, 390 U .S. 719, 88 S .Ct. 1318, 20 L.Ed .2d 255 (1968). Barber, supra , is
otherwise factually distinguishable . That case involved a witness who was located in a
federal prison in another state. The court held that the mere absence of a witness is
not sufficient grounds for dispensing with the constitutional right of confrontation,
particularly in view of the increased cooperation between states and between states
and the federal government with respect to processes for obtaining the presence of
witnesses from outside the jurisdiction .
Here, the witness' presence was compromised by her medical health .
Commonwealth v. Howard, Ky.App ., 665 S .W .2d 320 (1984), stated that if the prior
testimony is found by the trial court to be reliable and trustworthy, and the witness was
subject to cross-examination, it makes no difference whether the prior testimony comes
by way of deposition, previous trial, preliminary hearing, or as in the Howard case, a
bond reduction hearing, provided the same offense and same charge are dealt with .
See also Wells v. Commonwealth , Ky., 562 S .W .2d 662 (1978) cent. denied 439 U.S .
861, 99 S.Ct.181, 58 L .Ed. 2d 170 ; Cf. Ohio v. Roberts , 448 U .S . 56, 100 S.Ct. 2531,
65 L.Ed .2d 597 (1980). The case of Stoner v. Sowders , 997 F.2d 209 (6 th Cir. 1993), is
factually different because in that case the Commonwealth failed to show why two
witnesses were unavailable to give the same testimony in court when the depositions
had been taken the day before trial . No such factual pattern occurred in this case . The
trial judge was correct.
II . Audiotape Admissible
Brooks contends that the trial judge erred to his substantial prejudice and denied
him his Sixth Amendment right to confront witnesses against him when the trial judge
permitted the unredacted recorded statement of Mary Wood made to the police to be
played for the jury even though she was not present at this trial. We disagree .
This assignment of error is related to the first issue involving the prior testimony
of Wood . At the pretrial hearing the day before the trial, the trial judge considered the
issue of the admissibility of the prior testimony of Wood . One of the objections raised
by defense counsel was that he, unlike his predecessor in the previous trial, did not
intend to cross-examine Wood by introducing her taped statement to the police . Brooks
notes that defense counsel claimed that this decision was an exception to the exception
under KRE 804(b)(1) because, under his analysis, the rule referred not only to there
having been an opportunity to cross-examine the witness during former testimony, but
also a similar motive with regard thereto .
The trial judge heard additional arguments on this question the morning of trial .
He overruled the objections to the admissibility of the taped statement made to police .
Such ruling was not erroneous .
Defense counsel introduced the taped statement of Wood at the second trial for
the purpose of impeachment. As we previously determined in this opinion, Brooks
waived the issue concerning the availability of Wood at the third trial and the trial judge
correctly admitted her earlier testimony as the equivalent of a deposition. See RCr 7.20
and RCr 7.22 . The former testimony was subject to all the proper exceptions and
objections which could have been advanced to exclude the testimony of the witness
when it was first given . See RCr 7.20(2). This is the general rule followed in most
jurisdictions . See John E . Theuman, Annotation, Former Testimony Used at
Subsequent Trial as Subject to Ordinary Objections and Exceptions , 40 A.L.R. 514
(1985).
Some jurisdictions, however, have carved out an exception to the general rule
based on the concept of waiver. See Theuman, supra , citing ea, Scribner v. Palmer ,
156 P . 531 (Wash . 1916) which upheld the denial of the defendant's objections as to
the competency of certain former testimony by a deceased plaintiff because the
defendant himself elicited that testimony in cross-examination at the former trial. We
agree with those jurisdictions and find that waiver occurred here when defense counsel
introduced the taped statement at the second trial . The purported change in trial
strategy was not sufficient grounds to sustain the objection. Nor does KRE 804(b)(1)
require the exclusion of otherwise admissible prior testimony because of changes in, or
second thoughts about, trial strategy . The trial judge correctly admitted the prior
testimony of Wood including her taped statement to police . There was no Sixth
Amendment violation .
III . Prosecutorial Misconduct
The trial judge properly overruled the defense objection to the closing argument
of the prosecutor. Brooks complains that reversal is required because the remarks of
the prosecutor supposedly shifted the burden of proof to the defendant when he argued
that there were non-family member witnesses the defense could have called but failed
to do so . We find no foundation for such a claim .
The record indicates that all of the defense witnesses except a police detective
were relatives of Brooks and that this matter was first brought up by defense counsel in
his closing argument. During trial, the defendant testified that because he supposedly
traveled on the job, he had very few friends other than family members . The remarks of
the prosecutor in closing argument did not produce error. As recently noted in Maxie v.
Commonwealth , Ky., 82 S .W .3d 860 (2002), prosecutors are allowed wide latitude
10
during closing arguments and may comment upon the evidence presented . By
comparison, the comments of the prosecutor in this instance were not improper and the
ruling of the trial judge was correct . There was no constitutional violation .
IV. Serious Physical Injury
The trial judge did not deny Brooks his right to due process when he made a
determination that the defendant was a violent offender and that the victim suffered
serious physical injury . The trial judge determined for the purposes of the violent
offender parole ineligibility provisions of KRS 439.3401 that the injuries inflicted by
Brooks on the victim were serious physical injuries. This followed the jury verdict
finding Brooks guilty of the charged offenses .
Brooks now claims that this ruling was in error because "the jury specifically
rejected a finding of serious physical injury" and because there was "no record evidence
that the victim suffered a serious physical injury ." It should be understood that the
statute which was amended in 1998 requires a violent offender to serve at least 85% of
a sentence before becoming eligible for parole . See Myers v. Commonwealth
Ky., 42 S.W .3d 594 (2001). Serious physical injury is defined in KRS 500.080(15) as
"physical injury which creates a substantial risk of death, or which causes serious and
prolonged disfigurement, prolonged impairment of health, or prolonged loss or
impairment of the function of any bodily organ ."
Here, there was sufficient evidence to show that the defendant inflicted wounds
on the neck which subjected the victim to substantial risk of death and caused serious
and prolonged disfigurement. The most immediate risk was occasioned by the victim's
loss of blood . Hospital records demonstrate that when emergency technicians reached
the victim on the highway, a large amount of blood was in his lap . Emergency room
records confirm that following treatment, the patient was to continue to have close
observation .
During the criminal incident, the victim had been ordered to travel miles out into
the county to a remote location where he was attacked . There were two long crossing
slashes on the neck of the victim and he had stab wounds at the right side of his face
and neck and multiple defensive wounds on both upper extremities . The fact that the
victim was found before he bled to death does not change the life threatening nature of
his injuries. Although medical testimony may be the preferred method of proving the
serious physical injury requirement, lay testimony may be considered . Johnson v.
Commonwealth, Ky.App ., 926 S .W .2d 463 (1996) . The medical and nonmedical
evidence in this case support the decision by the trial judge that the victim suffered
serious injuries at the hands of the defendant. Thus, he was properly a subject for the
violent offender parole limitation provided in KRS 439.3401 .
Here, the jury correctly found from the evidence that Brooks attempted to kill the
victim but that does not mean that the jury thereby rejected a finding of serious physical
injury . The jury was instructed on first-degree assault as a lesser-included offense of
criminal attempt to commit murder--even though both offenses are Class B felonies.
Having found Brooks guilty of the greater offense, the jury did not need to reach the
lesser offense . It should be noted that there was no defense objection to the firstdegree assault instruction on the basis of any lack of serious physical injury evidence .
The ruling by the trial judge was appropriate . There was no constitutional violation of
any nature .
V. Prior Misdemeanor Convictions
Brooks argues that the trial judge committed error when he allowed the
Commonwealth to enter far too much description of prior misdemeanor convictions into
evidence during the sentencing phase of the trial. We disagree .
During the sentencing phase, the Commonwealth presented a probation and
parole officer to testify about a prior felony conviction of Brooks for first-degree assault
under extreme emotional disturbance with a sentence of one year in the penitentiary .
Thereafter, the Commonwealth introduced certified records pertaining to the
misdemeanor convictions over defense objections .
KRS 532.055(2)(x)(2) permits the introduction of the nature of prior offenses for
which a defendant was convicted . Here, the Commonwealth introduced a criminal
complaint associated with prior convictions for unlawful transaction with a minor,
terroristic threatening and theft by unlawful taking under $300 . Brooks complains that
the information contained in the criminal complaint far exceeds the amount of
information a jury is allowed to hear for the purpose of imposing a sentence. He relies
on Robinson v. Commonwealth , Ky., 926 S .W .2d 853 (1996) . This Court stated in that
case that all that is admissible as to the nature of a prior conviction is a general
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description of the crime . This Court went on to say that it would be sufficient to
introduce the judgment with testimony that the defendant assaulted the woman with
whom he had been living .
A careful examination of the record shows that there was no objection to this
evidence on the grounds that it was more than permitted by the statute, and therefore
prejudiced the defendant. The defense counsel did interpose a general objection to
any misdemeanor record of Gary Brooks. Earlier at a bench conference, the defense
counsel stated that he would object to the misdemeanor convictions, although he knew
the felony convictions were admissible .
As a general rule, a party must make a proper objection to the trial court and
request a ruling on that objection or the issue is waived. Commonwealth v. Pace, Ky.,
82 S .W .3d 894 (2002) ; accord Bell v. Commonwealth , Ky., 473 S.W.2d 820 (1971) .
Here, Brooks waived the issue because his stated objection at trial was not at all of the
nature which he now raises on appeal. There was no federal or state constitutional
violation .
There was no error of any kind in reaching the decision promulgated by the trial
judge. The elements enumerated in the rule have been recognized as being illustrative,
rather than exhaustive. See Commonwealth v . Higgs , Ky., 59 S.W.3d 886 (2001),
citing Cornelison v. Commonwealth , Ky., 990 S.W .2d 609 (1999) . It has been
recognized as a policy to provide full and accurate information to a sentencing jury.
Cornelison , supra . See also Huff v. Commonwealth , Ky., 763 S .W .2d 106 (1988).
Here, the information provided regarding misdemeanor convictions of Brooks
was directly relevant to the crimes for which the jury had just found him guilty. The
criminal complaint on the third-degree unlawful transaction with a minor showed that
Brooks previously had engaged in the sort of coercive conduct which he used to induce
the two minors into the robbery of the cab driver. The criminal complaint regarding
terroristic threatening indicated that the defendant was prone to the sort of violent
conduct inflicted on the victim here . Finally, the criminal complaint on the charge
unlawful taking under $300 demonstrated an inclination to commit theft crimes
motivated by relatively small amounts of cash such as that which he took from the
victim in this case. Robinson, supra , is factually distinguishable because the
complained of penalty evidence there consisted of testimony by a victim of a prior
assault who was allowed to testify at length . No such detailed testimony was permitted
here. The penalty phase misdemeanor evidence was not clearly beyond the limitation
set for such evidence by Robinson. See also Hudson v. Commonwealth , Ky., 979
S .W.2d 106 (1998). The information provided here was relevant to arriving at an
appropriate sentence for this particular offender . See Williams v. Commonwealth , Ky.,
810 S .W .2d 511 (1991).
The judgment of conviction and sentence is affirmed .
Lambert, C.J ., and Graves, J ., concur. Cooper and Johnstone, JJ., concur but
as to result only on issue I . Kelller, J., dissents by separate opinion and is joined by
Stumbo, J ., who also dissents by separate opinion .
COUNSEL FOR APPELLANT :
Richard Hoffman
Assistant Public Advocate
Department of Public Advocacy
1000 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE :
A . B. Chandler III
Attorney General
Samuel J. Floyd, Jr.
Assistant Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
RENDERED : SEPTEMBER 18, 2003
TO BE PUBLISHED
,*uyr=r (gourf of 'firttfurkV
2001-SC-0458-MR
GARY BROOKS
V.
APPELLANT
APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE STEPHEN HAYDEN, JUDGE
99-CR-00018
COMMONWEALTH OF KENTUCKY
APPELLEE
DISSENTING OPINION BY JUSTICE KELLER
Because substantial evidence supports the trial court's determination that Mary
Wood ("Wood") was unavailable to testify at Appellant's third trial, I agree with the
majority's conclusion that the trial court properly allowed the Commonwealth to
introduce Wood's videotaped prior sworn trial testimony . I respectfully dissent from the
result reached by the majority and vote to reverse Appellant's convictions and to
remand the case for a new trial, however, because the trial court erred when it
permitted the introduction of Wood's audiotaped, unsworn, out-of-court interview with
investigating officers as part and parcel of her prior trial testimony . In my view, the
evidentiary issues in this case can - and should - be resolved under the Kentucky
Rules of Evidence . Because the trial court's finding that Wood was unavailable was not
clearly erroneous, Wood's prior trial testimony was properly admitted under KRE
804(b)(1) . The lion's share of Wood's out-of-court confession, however, constituted
rank hearsay that does not fall within an exception to the hearsay rule and thus should
have been excluded .'
To properly contextualize the error in this case, I find it necessary to give a more
extensive recitation of the factual background of this case - focusing upon the nature of
Appellant's defense and Appellant's cross-examination of Wood, including the manner
in which Wood's out-of-court confession was introduced - than the majority provides .
Thus, briefly : (1) an assailant, acting in complicity with others, robbed a cab driver in
rural Henderson County, Kentucky, and, during a struggle, used a knife to slash and
stab the driver's face, hands, and arms; (2) subsequently, Kenneth "Cowboy"
McClanahan contacted the authorities and informed them that he had been present
when Appellant planned the crime, and that Appellant had later shown him a sum of
money and told him that he (Appellant), Appellant's girlfriend Wood, Wood's minor son
B .W ., and B .W .'s friend C. P. had committed the crime together ; (3) McClanahan then
assisted the investigating officers by wearing a wire and obtaining taped incriminating
statements from Wood (the initial getaway driver) and B .W . (who assisted the assailant
during the robbery by taking the driver's money bag and wallet to his mother's vehicle) ;
(4) Appellant, Wood, B .W., and C .P. were all charged ; (5) B .W .'s and C .P.'s charges
were disposed of in juvenile court and Wood entered a guilty plea in circuit court and
received a prison sentence ; (6) Appellant proceeded to trial, and his theory of the case
was that McClanahan, Wood, B .W ., and C.P ., had committed the robbery, and that
Wood had "cooked up" the scheme to finger Appellant as the assailant as retribution for
Appellant's refusal to become her fourth husband . Prior to the trial that is the subject of
' KRE 802 ("Hearsay is not admissible except as provided by these rules or by
rules of the Supreme Court of Kentucky.").
the present appeal to this Court, two (2) separate juries were unable to reach a
unanimous verdict as to Appellant's guilt.
During the Commonwealth's direct examination of Wood at Appellant's second
trial, Wood described the planning, preparation, and execution of the robbery. Defense
counsel's cross-examination consisted primarily of laying KRE 613 foundations to
impeach Wood with alleged inconsistencies between her trial testimony and a previous
statement that Wood had given to police officers upon her arrest ten (10) days after the
crime. Specifically, defense counsel addressed inconsistencies including : (1) whether
Appellant, while leaping into Wood's car after robbing the cab driver and slicing the
driver's throat, exclaimed "Drive, bitch, drive!" (as Wood testified at trial) or "go, go, go"
(as Wood had stated in her audiotaped statement to the police) ; (2) whether during her
trial testimony, in which she described the knife that Appellant allegedly used and
explained that Appellant shaved his beard immediately after the crime for the purpose
of changing his appearance, Wood disclosed new details regarding the crime "for the
first time" ; and (3) whether, in contrast to her earlier statement to the police in which she
described "getting caught up in the `hype' of it," Wood's trial testimony attempted to
emphasize that her own role in the crime and the role of her son was the result of
Appellant's coercion . In response to many of these KRE 613 foundational questions,
Wood stated that she could not remember the exact words that she had used during
her statement to police two (2) years earlier. After a handful of Wood's "I can't
remember what I said back then" responses, defense counsel stated/inquired "Why
don't we just play the tape?" After a lengthy bench conference, that is exactly what
transpired .
Wood remained seated on the witness stand while Appellant's trial counsel
played for the jury Wood's approximately-fifteen-minute-long audiotaped interview with
the investigating officers . During the interview, Wood indicated that she was
"cooperating" with the authorities, started her narrative of the events by stating that
"Gary wanted to go do a job," and proceeded to describe Appellant's role in soliciting,
planning, and executing the robbery . When the tape concluded, defense counsel
engaged in a few follow-up questions to establish the alleged inconsistencies - e.g .,
"Now you heard yourself tell the officer that Gary said 'go, go, go' right?" - and then he
concluded his cross-examination . The Commonwealth had no redirect examination .
However, defense counsel later recalled Wood to the stand to lay additional
groundwork for Appellant's "you lied on me because I wouldn't take you as my bride"
defense - i.e., more KRE 613 foundational questions regarding whether she had asked
Appellant to marry her in the presence of other people and whether, when she
discovered that Appellant was already married to someone else, she made statements
to the effect of "paybacks are hell" and "he'll pay." The case was subsequently
submitted to the jury for its deliberations, and the trial court declared a mistrial when the
jury was unable to reach a unanimous verdict.
After the trial court ruled prior to Appellant's third trial that the Commonwealth
could introduce Wood's videotaped trial testimony from the second trial, Appellant's
new defense counsel requested that the trial court redact the videotape to omit the
portion where Appellant's former trial counsel had played Wood's audiotaped out-ofcourt statement to police. The trial court denied Appellant's motion. And, thus, at
Appellant's third trial, after all of the Commonwealth's "live and in person" witnesses
testified : (1) the bailiff rolled a TVNCR "media cart" in front of the jury; (2) the trial court
informed the jury that Wood was unavailable to testify in person at the trial, but
admonished the jury to give Wood's testimony from a prior "hearing" as much credibility
as it would if Wood had testified in person because Wood had been under oath at the
time she testified at the prior "hearing" ; and (3) both Wood's trial testimony and her outof-court audiotaped statement to police were played for the jury (with the trial court's
bench clerk muting and fast-forwarding through the bench conferences) .
The trial court erred when it denied Appellant's motion to redact Wood's out-ofcourt confession from the videotape that contained Wood's former trial testimony .
Despite the majority's suggestion to the contrary , 2 Wood's out-of-court confession,
although played during her earlier testimony, was not, itself, testimony, and was
certainly not, therefore, "testimony given as a witness at another hearing of the same or
a different proceeding ,4 that would be admissible under KRE 804(b)(1) . Instead,
Wood's interview contained extrajudicial statements5 that could be admitted into
evidence at Appellant's trial only if they independently satisfied an exception to the
2 Brooks v. Commonwealth , Ky.,
S .W.3d
(200_) (Slip Op. at 7)
("Nor does KRE 804(b)(1) require the exclusion of otherwise admissible prior testimony
because of changes in, or second thoughts about, trial strategy. The trial judge
correctly admitted the prior testimony of Wood including her taped statement to police."
(emphasis added)) .
3 See BLACK'S LAw DICTIONARY 1485 (7 t" ed . 1999) (defining "testimony" as
"[e]vidence that a competent witness under oath gives at trial or in an affidavit or
deposition ." (emphasis added)) .
4 KRE 804(b)(1) .
5 See KRE 801 (a) ("A `statement' is . . . an oral or written assertion[ .]"). Cf.
Williamson v. United States , 512 U .S . 594, 114 S .Ct . 2431, 129 L.Ed .2d 476 (1994)
(holding that "statement," under FIRE 804(b)(3) means "a single declaration or remark"
rather than "a report or narrative") .
hearsay rules Although a handful of individual statements contained within Wood's
interview would have been admissible under KRE 801-A(1)(a) as prior statements that
were inconsistent with Wood's trial testimony, and certain inculpatory statements may
have been admissible under KRE 804(b)(3) as statements against Wood's interest,
much of Wood's "confession" consisted of descriptions of Appellant's conduct rather
than her own . Simply stated, neither KRE 804(b)(3) nor any other rule permitted the
introduction of Wood's extrajudicial statements about Appellant's conduct. 7
The majority, however, does not address the substantive issue of whether
Wood's extrajudicial "confession" was, in fact, properly admissible at Appellant's trial .
Instead, the majority holds that Appellant waived his right to object to the playing of the
audiotape because Appellant's former trial counsel had introduced the audiotape of
Wood's police interview during his cross-examination at the prior trial. In so doing, the
majority adopts what it acknowledges to be a minority position, which could be
characterized as "you made your bed, now you get to sleep in it," in apparent reliance
upon pre-WWI authority, which has not been cited by any court since before WWII, that
only holds, on a matter of statutory interpretation, that a statute did not permit
objections to portions of former testimony .$ Most significantly, however, the majority
opinion's waiver analysis all but ignores our own rules addressing objections to former
testimony. The Kentucky Rules of Criminal Procedure: (1) treat a witness's testimony
6 See KRE 805 ("Hearsay included within hearsay is not excluded under the
hearsay rule if each part of the combined statements conforms with an exception to the
hearsay rule provided in these rules .")
See Osborne v. Commonwealth , Ky., 43 S .W .3d 234, 239-241 (2001).
8 Scribner v. Palmer , 156 P. 531, 532 (Wash . 1916) ("It is the testimony of the
deceased witness given in a former trial, not some part of it, which is in plain and
positive terms made admissible at the second trial. The statute leaves no room for
construction .").
at a former trial as the equivalent of a deposition ;9 (2) make the admissibility of a
witness's former testimony subject to the Kentucky Rules of Evidence ;' ° and (3)
explicitly authorize objections at trial to portions of deposition testimony and set out the
circumstances under which such objections may have been waived :
Objections may be made at the trial or hearing to receiving
in evidence any deposition or part thereof for any reason
that would require exclusion of the evidence if the witness
were then present and testifying ; provided, however, that:
(a)
objections to the competency of a witness or to the
competency, relevancy, or materiality of testimony are
not waived by failure to make them before or during
the taking of the deposition unless the ground of the
objection is one that might have been obviated or
removed if presented at that time ;
(b)
errors and irregularities occurring in the oral
examination in the manner of taking the deposition, in
the form of the questions or answers, in the oath or
affirmation or in the conduct of the parties, and errors
of any kind that might be obviated, removed, or cured
if promptly presented are waived unless seasonable
objection is made at the taking of the deposition ; and
(c)
objections to the form of written questions are waived
unless served in writing on the party propounding
them within the time allowed for serving the
succeeding cross or other questions and within three
(3) days after service of the last questions
authorized ."
Today's majority opinion adopts, by judicial fiat, a new fourth exception to RCr
7.20(2)'s general rule that former testimony is subject to all proper objections that could
have been raised at the time the testimony was originally given . If the Court wishes to
9 RCr 7 .22 ("For purposes of Rule 7.20 a duly authenticated transcript of
testimony given by a witness in a previous trial of the same offense in any district or
circuit court on the same charge shall be the equivalent of a deposition .") .
'° RCr 7 .20(1) ("At the trial or upon any hearing, a part or all of a deposition, so
far as otherwise admissible under the rules of evidence, may be used . . . ." (emphasis
added)) .
11
RCr 7 .20(2).
amend its rules, we have procedures to do so. As we have not done so, however, I
would apply RCr 7.20(2) as written . I therefore disagree with the majority's apparently
ad hoc conclusion that Appellant waived his right to object to this inadmissible hearsay,
and I would hold that the trial court erred when it failed to redact Wood's videotaped
prior testimony as Appellant had requested . Because the erroneous admission of the
audiotaped confession prejudiced Appellant by improperly bolstering Wood's sworn
testimony, I vote to reverse Appellant's convictions and to remand this indictment to the
trial court for a new trial.
Stumbo, J., joins this dissenting opinion.
RENDERED : SEPTEMBER 18, 2003
TO BE PUBLISHED
,Sixpxmur (gaurf of ~mfurkg
2001-SC-0458-MR
GARY BROOKS
APPELLANT
APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE STEPHEN HAYDEN, JUDGE
99-CR-00018
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
DISSENTING OPINION BY JUSTICE STUMBO
Respectfully, I must dissent from the majority's holding that the trial court did not
err in admitting the unredacted recorded testimony of Mary Wood .
The Confrontation Clause of the Sixth Amendment to the United States
Constitution made applicable to the states through the Fourteenth Amendment,
guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with witnesses against him ." To overcome this guarantee there must be a
viable exception . Maryland v. Craig, 497 U .S . 836, 110 S. Ct . 3157, 111 L . Ed . 2d 666
(1990) .
In this case, the Commonwealth presented an affidavit and the trial judge made a
personal inquiry as to Ms. Wood's unavailability . Satisfied that Ms. Wood was indeed
unavailable, the trial judge permitted admission of Ms. Wood's prior testimony via
videotape.
If the only issue was whether Ms. Wood was successfully characterized as an
unavailable witness, Appellant's argument would fail. The trial judge was satisfied that
the Commonwealth adequately demonstrated Ms . Wood's unavailability, thus meeting
the rule of necessity required by the Confrontation Clause. Idaho v . Wright, 497 U .S.
805, 110 S. Ct. 3139, 111 L. Ed . 2d 638 (1990) ; Ohio v. Roberts , 448 U .S. 56, 100 S .
Ct. 2531, 65 L. Ed . 2d 597 (1980) .
However, the issue in this case is whether it was error to include all prior
testimony given by Ms . Wood . The second prong of the Confrontation Clause test
requires that before admission of testimony from an unavailable witness there must be
an "indicia of reliability ." Roberts , supra , at 66.
Defense counsel objected to the
inclusion of that portion of Ms . Wood's prior testimony containing her confession that
was obtained during "custodial interrogation ."
Traditionally, statements obtained through the use of leading questions regarding
a serious crime and the role of a party in that crime have been viewed by the courts as
unreliable. Lilly v . Vir` inia , 527 U .S. 116, 119 S. Ct. 1887, 144 L. Ed. 2d 117 (1999). A
review of the totality of the circumstances surrounding Ms . Wood's confession,
including : the immanency of the charges; her co-defendant status; the participants'
tendency to shift blame; and the omission of the procedural safeguards of oath and
limited or restricted cross-examination, all create doubt as to any "particularized
guarantees of trustworthiness ." Roberts , supra , at 66.
Ms. Wood's unavailability denied Appellant the opportunity to confront his
accuser at his third trial. The trial court believed there was sufficient evidence to
overcome the denial of Appellant's Sixth Amendment guarantee. I disagree .
Ms. Wood's confession did not bear any "indicia of reliability" or "particularized
guarantees of trustworthiness" and thus was inadmissible .
Defense counsel requested that the confession be redacted from the testimony
of the second trial prior to being presented to the jury at Appellant's third trial . The trial
judge's decision to allow the unredacted testimony containing Ms . Wood's custodial
confession denied Appellant his Sixth Amendment right to confront his accuser and
therefore, was reversible error.
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