PHILLIP L. BROWN V. COMMONWEALTH OF KENTUCKY
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IMPORTANTNDTicE
NOT TO BE PUBLISHED OPINION
THIS OPINIONIS DESIGNA TED "NOT TO BE
PUBLISHED. " PURSUANT TO THE RULES OF
CIVIL PROCED URE PROMUL GA TED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS A UTHORITY INANY OTHER
CASE IN ANY COUR T OF THIS STATE.
RENDERED : AUGUST 25, 2005
NOT TO BE PUBLISHED
,$uyxetcr (9ourf of
2003-SC-1023-MR
PHILLIP L. BROWN
V
APPELLANT
APPEAL FROM ADAIR CIRCUIT COURT
HONORABLE JAMES G . WEDDLE, JUDGE
2002-CR-101
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
REVERSING AND REMANDING
This appeal is from a judgment based on a jury verdict that convicted Brown of
murder, first-degree burglary and first-degree robbery. He was sentenced to life in
prison without the possibility of probation or parole for 25 years .
The questions presented are whether two prospective jurors should have been
removed for cause; whether hearsay evidence was improperly admitted ; whether
evidence of bias by prosecution witnesses was erroneously excluded ; and whether the
defendant was denied the right to present evidence in his defense .
The victim was brutally murdered inside her home on or about the 10th, 11 th, or
12th day of January, 2001 . A state medical examiner testified that the cause of death
was multiple blunt force and sharp force injuries sustained in an assault . Both a tire
iron and knife were recovered from the scene. The victim's television was missing .
On the night of January 12, 2001, a police officer came into contact with Brown
and noticed that he had some scratches on his left wrist. A couple of days later, the
police photographed the two scratches and confiscated his clothes . A T-shirt belonging
to Brown gave a positive chemical test indicating the presence of blood but could not be
confirmed.
In a taped statement given to police on November 6, 2001, Brown denied
knowing anything about the crimes perpetrated against the victim. When asked why
some of his confiscated clothes had what appeared to be blood on them, he said that
he had cut his wrist moving a speaker out of a car . In a second statement given to
police eight days later, Brown indicated that two other individuals, Jerry and Joseph
Kemp may have been involved in the crime . He later recanted this story at trial.
Brown was indicted and tried for the murder, first-degree burglary and firstdegree robbery of the victim. Among other witnesses, four individuals, including Jerry
and Joseph Kemp, testified against Brown . All four individuals had some type of
criminal record . Brown testified in his own defense and completely denied the charges.
The jury convicted Brown of all of the offenses . He was sentenced to life in
prison without the possibility of probation or parole for twenty-five years for the murder,
fifteen years for the first-degree burglary and ten years for the first-degree robbery. The
fifteen year sentence and the ten year sentence were ordered to run consecutively, but
concurrently with the life sentence. This appeal followed .
I . Removal of Prospective Jurors
Brown argues that the trial judge erred in refusing to excuse two prospective
jurors for cause. It is unnecessary to address this issue because we are reversing this
case on other grounds and it is unlikely this issue will arise on retrial .
II . Double Hearsay Testimony
Brown contends that prejudicial hearsay evidence was improperly admitted . In
particular, he asserts that the proper foundation was not laid for the introduction of the
double hearsay testimony . We disagree .
A prosecution witness, Hughes, testified that he never had any conversation with
Brown about the victim and further stated that he never made any statement to another
individual, Lane, about any such conversation he had with Brown. Following the
denials by Hughes, the Commonwealth elicited testimony from Lane that Hughes had
told him that Brown had admitted to committing the murder. Lane also stated that
Hughes had told him that Brown said if he did not believe him, he could drive by the
victim's house to see that he (Brown) had left the door open.
Defense counsel only made a general objection to the testimony of Lane . The
trial judge ruled that the testimony was admissible on grounds that it was impeachment
of a prior witness.
Although the testimony of Lane as to what Hughes said Brown told him was
double hearsay, it was admissible because each part of the combined statements
conforms with an exception to the hearsay rule. KRE 805 . See also , Thurman v .
Commonwealth , 975 S .W .2d 888, 893 (Ky. 1998) . Brown's statements were admissible
as admissions of a party. KRE 801A(b)(1) ; Thurman , supra . Hughes could have
testified to those statements because he was the person to whom the admissions were
made . His statements to Lane were then admissible as prior inconsistent statements of
a witness . KRE 801A(a)(1) ; Thurman ; Jett v. Commonwealth , 436 S .W .2d 788 (Ky.
1969) .
The proper foundation was laid for the admission of Lane's testimony by asking
Hughes if he had made any statements to Lane. KRE 613(a) ; Thurman. The fact that
Hughes was never asked if he had made the particular statements to Lane is of no
consequence . Hughes denied making any statements to Lane about what Brown had
said to him. There was no error in the admission of the testimony .
III . Evidence of Bias of Prosecution Witnesses
Brown claims that the trial judge abused his discretion and denied him his rights
of due process and confrontation by refusing to allow him to introduce evidence
establishing that key prosecution witnesses had received legal assistance from the
Commonwealth . We must agree.
Before trial, the Commonwealth Attorney filed a "Voluntary Compliance With
Defendant's Request For Discovery" in which he detailed the assistance given to four
prosecution witnesses, Jerry Kemp, Joseph Kemp, Roy Ingram and Brant Lane, in their
own criminal cases. The assistance given "in exchange for information provided"
ranged from helping the witnesses obtain release from jail via bond reductions or shock
probation to reduction or dismissal of charges. At trial, defense counsel asked each of
these witnesses during cross-examination about the assistance they had received .
Each of them either equivocated or denied having any knowledge of receiving
assistance from the Commonwealth.
Wanting to impeach the testimony of the four witnesses, defense counsel sought
to introduce the discovery document through the testimony of an Adair circuit clerk
pursuant to KRE 801 A(b) . The trial judge rejected the testimony on grounds that the
prosecuting attorney was not a party to the action . Defense counsel was permitted to
do an avowal of the circuit clerk's testimony .
A criminal defendant has a constitutionally protected right to cross-examine
witnesses in order to expose a potential bias or motivation in testifying. Turner v.
Commmonwealth , 153 S.W .3d 823 (Ky. 2005) citing Davis v. Alaska, 415 U.S . 308,
316, 94 S .Ct . 1105, 1110, 39 L .Ed .2d 347, 354 (1974) . He also has a right to put in
evidence any fact which might show bias on the part of a witness who has testified
against him. Adcock v. Commonwealth , 702 S.W.2d 440 (Ky. 1986) .
Here, Brown was denied the right to present evidence which demonstrated the
potential for bias on the part of the four prosecuting witnesses . The document sought
to be introduced was admissible as an admission by a party under KRE 801A(b) . The
prosecutor was a representative of the Commonwealth and the Commonwealth was
certainly a party to this action . The document may have also been admissible under
the public records exception to the hearsay rules. Considering the entire record, we are
unable to conclude that the error was harmless. Consequently, this case is reversed
and remanded for a new trial.
IV. Right to Present a Defense
Brown asserts that the trial judge abused his discretion and denied him his due
process right to present a defense when he refused of allow him to introduce evidence
of alternative perpetrators . We disagree .
The trial testimony of Jerry Kemp and others indicated that Jerry Kemp was in
possession of a television very similar to the one taken from the victim . In fact, Jerry
Kemp admitted that he had the television in his house; that he helped remove it when
people began connecting it to the one taken from the victim's house and that he took
the police to the location where he abandoned it. The police were unable to find a
television at that location . Apparently, some dairy farmers had found a similar one
earlier and unknowingly disposed of it.
During Brown's case-in-chief, he presented a witness who indicated that she had
a television stolen from her home and that the Kemp brothers were involved . This
occurred almost a year after the crime in this case. The trial judge prohibited the
testimony and admonished the jury to disregard the portion of it they heard . The
witness later testified by avowal that her television was stolen from her home and that
several individuals, one of whom was Joseph Kemp, had participated in the theft. She
later heard that Jerry Kemp was in possession of the television and she attempted to
retrieve it from him. Unable to do so, she had all the participants arrested . Jerry Kemp
later returned the television and the charges were dropped .
A defendant does have a right to introduce evidence that another person
committed the offense with which he is charged . Beaty v. Commonwealth , 125 S .W .3d
196 (Ky. 2003). That right, however, is not unlimited . Evidence is not automatically
admissible simply because it tends to show that someone else committed the offense .
Beats supra . For instance, motive evidence alone is insufficient to guarantee
admissibility. Beats. The same can be said for evidence of opportunity . Beats.
Evidence that Jerry and Joseph Kemp were involved with or were in possession
of a second stolen television nearly a year after the present crime was committed
demonstrated neither motive nor opportunity in this case.
Moreover, although Brown
had indicated earlier in a statement to the police that the Kemps where involved in the
present crime, he recanted that story entirely at trial. He still claimed that he did not
commit the present offenses, but when he testified, he was no longer casting any blame
on the Kemps . Brown was not denied his right to present a defense by the exclusion of
the "reverse 404(b)" evidence .
The judgment of conviction is reversed and this matter is remanded for a new
trial.
All concur except Johnstone, J ., who concurs in result only.
COUNSEL FOR APPELLANTS :
Donna L. Boyce
Appellate Branch Manager
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Gregory D. Stumbo
Attorney General
Susan Roncarti Lenz
Assistant Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
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