MARQUIS DERON HEARD V. COMMONWEALTH OF KENTUCKY
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2004-SC-000551-DG
MARQUIS DERON HEARD
V.
[OAT IELA_V~._n
APPELLANT
ON REVIEW FROM THE COURT OF APPEALS
2002-CA-002494
FAYETTE CIRCUIT COURT NO. 02-CR-00244
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE LAMBERT
AFFIRMING _ IN PART AND REVERSING IN PART
Appellant, Marquis Deron Heard, was convicted of criminal trespass in the
first degree and of second-degree assault, a class D felony . His convictions stem from
an altercation with Andreal (Angel) Saunders, the mother of his infant daughter, while
she and the child were visiting the home of her grandmother, Sara Saunders.' The
principal issue is whether Appellant's confrontation clause rights were infringed.
Appellant attempted to visit Angel at Sara's home, but Sara would not
allow him in. Later, when Sara left the residence to do errands, Appellant broke into the
house by kicking in the door. An altercation ensued, and on charges brought thereafter,
The record is unclear whether Sara Saunders is the grandmother or greatgrandmother of Andreal (Angel) Saunders. Filings in the trial record refer to her as the
grandmother, but the appellate briefs identify her as the great-grandmother. The
confusion seems to arise from the fact that Andreal (Angel) and her child have the same
name.
Appellant was found guilty of assaulting Angel with the butt of a handgun . When
Appellant left the residence, he took the parties' child with him .
When Sara returned home, she saw the aftermath of the altercation
including damage to her door and physical injuries to Angel's face . Angel described the
altercation to Sara and directly implicated Appellant. Thereafter, Officer Gilbert of the
Lexington -Fayette Urban County Division of Police was called to the scene . Angel
responded to Officer Gilbert's questions and again implicated Appellant . She told him
that Appellant had called to see if her grandmother was at home, and upon learning that
she was not, he came to the residence . When Angel refused to open the door,
Appellant kicked it in. Angel also told Officer Gilbert that Appellant began hitting her
over the head with a handgun because she would not let go of their infant child, and
when she finally did have to let go, Appellant grabbed her. According to her statement
to Officer Gilbert, Appellant pointed the weapon at her and said that he would have shot
her if the gun had not been broken . Another police officer and a paramedic both spoke
to Appellant when he called his own cell phone, which he had left at Sara Saunders'
residence . Eventually Appellant hung up the cell phone and called the house phone.
Officers listened as he spoke with Sara, and he also spoke with the paramedic .
Appellant admitted to the paramedic that he had hit Angel with his fists, but not with a
gun. Angel was taken to Good Samaritan Hospital and treated for her injuries by Dr.
Wicker . Later that night, the child was returned to Angel after an officer had located the
child in the care of Appellant's mother .
At trial, the victim, Angel Saunders, refused to testify. She refused to
honor a subpoena to testify and subsequently recanted her previous incriminating
statements in an affidavit . Angel's affidavit was filed in support of Appellant's motion for
judgment of acquittal or for a new trial. The trial court overruled the motions.
Appellant appealed to the Court of Appeals arguing that the trial court
violated his Sixth Amendment right to confront his accuser by admitting into evidence
the victim's out-of-court statements made through Officer Gilbert and Dr. Wicker. He
also asserted error in the trial court's admission of various parts of Sara Saunders'
testimony. Finally, he argued that the trial court should have granted his motion for a
mistrial due to a paramedic's reference to Appellant's prior criminal record in violation of
a pre-trial order .
Recognizing that portions of Officer Gilbert's testimony were improperly
admitted in light of the United States Supreme Court's decision in Crawford v.
Washington , the Court of Appeals nevertheless affirmed Appellant's conviction upon its
conclusion that the erroneously admitted testimony was cumulative of other admissible
evidence and therefore harmless. This Court granted Appellant's motion for
discretionary review, heard oral argument, and now reverses in part the decision of the
Court of Appeals .
We begin with a discussion of the Confrontation Clause and relevant
jurisprudence and focus upon two recent decisions of the Supreme Court of the United
States. The Sixth Amendment provides that "In all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses against him. ,4 In a
landmark decision overruling settled precedent, the United States Supreme Court held
'541 U.S . 36,124 S .Ct. 1354, 158 L.Ed.2d 177 (2004) .
3 Crawford , 541 U.S . 36, and Davis v. Washington , 547 U .S.
L.Ed.2d 224 (2006) .
4 U.S. Const . amend. VI .
, 126 S.Ct. 2266, 165
in Crawford v. Washingtons that where testimonial evidence is at issue, the Sixth
Amendment demands unavailability and a prior opportunity for cross-examination, and
that the admission of testimonial statements against an accused without an opportunity
to cross-examine the declarant is alone sufficient to establish
a violation of the Sixth
Amendment.
With respect to testimonial statements, Crawford overruled the Ohio v.
Roberts6 balancing test which had prevailed for a quarter century. Roberts was far
more liberal and had generally allowed unavailable out-of-court witness statements to
be admitted, even if testimonial in nature, as long as the statement possessed sufficient
indicia of reliability.' The trial of this case pre-dated Crawford and the trial court
admitted Officer Gilbert's testimony in accordance with Roberts . However, this Court
must evaluate admission of the evidence in light of the more recent Crawford and Davis
v. Washington ,$ decisions that appear to be controlling of the case at bar.
While Crawford declared statements made during a police interrogation to
be testimonial in nature, it did not elaborate on the definition of "interrogation," nor upon
when or under what circumstances such out-of-court statements may be admitted .
Davis provided the elaboration as follows :
Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the primary
purpose of the interrogation is to enable police assistance to meet an
ongoing emergency . They are testimonial when the circumstances
objectively indicate that there is no such ongoing emergency, and that the
5 541 U .S. 36.
G Ohio v. Roberts , 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).
_Id.
8 547 U.S .
, 126 S.Ct. 2266.
primary purpose of the interrogation is to establish or prove past events
potentially relevant to later criminal prosecution .9
One of the "interrogations" under review in Davis occurred after the
victim had called 911 for assistance. The 911 operator asked the caller (the
victim) several questions . Davis identified the statements initially made by the
victim as non-testimonial because she was being assaulted during the
conversation and was speaking about events as they were actually occurring .
The Court noted, however, that statements made to address an ongoing
emergency may evolve into testimonial statements if they recount past events
after the emergency is over. Thus, Davis sets a high standard . Not all
statements made in the general context of an emergency will meet it. The
emergency must be in progress for the statements to qualify .
Officer Gilbert was permitted to repeat what Angel had told him about the
attack Appellant made on her, events that had already occurred . She gave no reported
information bearing upon the safety or whereabouts of her child. There was no ongoing
emergency with respect to the events Angel recounted. She was safely in the presence
of one or more police officers and the statements concerned violations of law. Angel's
statements to Officer Gilbert were clearly testimonial and they should not have been
allowed into evidence. The Court of Appeals recognized this but found the error to be
harmless. Accordingly, we must examine Officer Gilbert's testimony in light of all of the
evidence to determine whether its admission can be so characterized . It must not be
overlooked that "before a federal constitutional error can be held harmless, the
9 Id. at
[reviewing] court must be able to declare a belief that it was harmless beyond a
reasonable doubt."'°
Appellant contends that Officer Gilbert's testimony was not harmless .
He
offers seven particular out-of-court statements made by Angel that he alleges were
offered exclusively through this testimony: 1) Appellant had called and asked if her
grandmother was gone ; 2) Appellant showed up a few minutes after the call and
threatened to kick in the door; 3) Appellant did kick in the door; 4) Appellant hit Angel in
the head with a gun; 5) Angel refused to let go of the child; 6) when Angel did let go,
Appellant grabbed the child; and 7) Appellant pointed a gun at Angel and said that he
would have shot her if the gun were not broken .
Upon thorough review of the trial record, we cannot in good conscience
declare that this erroneously admitted testimony was harmless beyond a reasonable
doubt. While Officer Gilbert's testimony was cumulative of Sara's testimony to the
extent that Sara testified that Appellant apologized to her over the phone for breaking
down the door, and to the extent that Angel told Sara that Appellant hit her with a gun,
the most detrimental evidence against Appellant was Officer Gilbert's hearsay repetition
of Angel's statements, in violation of the Sixth Amendment .
In Barth v. Commonwealth ," this Court declined to hold harmless the
erroneous admission of a non-testifying co-defendant's confession which implicated
some "other party ." Though the confession was not specifically incriminating to the
defendant on its face, it became so when linked with other evidence adduced at trial.
`° Barth v. Commonwealth . 80 S .W.3d 390, 395 (Ky. 2001) (citing Chagman v.
California , 386 U .S. 18, 24, 87 S.Ct . 824, 828, 17 L.Ed.2d 705 (1967)) .
11 80 S.W .3d 390 .
Moreover, in Barth, there was additional evidence against the defendant including an incourt identification by the victim and the defendant's fingerprints at the scene of the
crime and in the vehicle stolen therefrom . Nevertheless, we rejected the
Commonwealth's contention that the error was harmless based on our conclusion that
the co-defendant's confession "was clearly the most damning evidence against [the
.,,12
.
defendant] . We therefore reverse [the defendant's] case for a new trial
Likewise, in the instant case, Officer Gilbert's testimony was the most
damning against Appellant with regard to the second-degree assault conviction . There
are three means by which one may commit assault in the second degree . Two require
proof of "serious physical injury." 13 The jury here was instructed only on the remaining
means 14 which requires proof of intentionally causing "physical injury" by means of a
"dangerous instrument." Despite the victim's failure to testify, and the fact that no gun
or other dangerous instrument was persuasively linked to the assault by admissible
evidence, the jury found Appellant guilty of this offense and recommended the
maximum allowable sentence of ten years imprisonment . Additionally, one of the most
influential statements from which the jury could have inferred Appellant's intent to cause
Angel physical injury was offered exclusively in Officer Gilbert's testimony, i.e., that
Angel said that Appellant pointed a gun at her and said that he would have shot her if
the gun were not broken. While there were vague references to the gun by two other
witnesses, nothing was as powerful as Officer's Gilbert's repetition of Angel's statement
about Appellant shooting her if the gun were not broken .
_Id . at 396.
KRS 508 .020(a) and (c) .
14
KRS 508.020 (b).
'2
'3
We have not overlooked Sara's testimony that Angel told her Appellant hit
her with a gun, but this testimony was undermined by her initial statement that she
could not remember what Angel said to her. The other witness to refer to the gun was
Dr. Wicker, Angel's treating physician at the hospital . However, while he testified that
his notes implied that Angel was the direct source of this information, he also noted that
he had received some information from the paramedics. As Dr. Wicker had only a
vague recollection of treating Angel, he could not say with certainty that Angel was the
one who told him the injuries resulted from being hit with a gun .
Our examination of Officer Gilbert's testimony in light of the other evidence
presented at trial reveals that it was not harmless beyond a reasonable doubt.
Therefore, we reverse Appellant's conviction of second-degree assault for a new trial, at
which Officer Gilbert's testimony relaying testimonial statements made by Angel should
be excluded.
As a new trial will be required and the admissibility of Sara Saunders' and
Dr. Wicker's testimony will likely be challenged, it is appropriate to address these claims
of error. The trial court was within its discretion when it admitted Dr. Wicker's testimony
under the medical treatment exception to the hearsay rule. ' 5 Any shortcoming in the
testimony can be dealt with on cross-examination .
With regard to Sara Saunders' testimony, Appellant asserts that Angel's
statements to Sara immediately upon Sara's return to the residence should not have
been admitted . Though Appellant seems to object to the entirety of Sara's testimony,
we note that most of it consisted of her personal observations . For example, she
'S
See KRE 803( 4) .
observed Angel crying when she returned home . She also observed that Angel's head
was bleeding and that the door to her home was damaged. In fact, our review of her
testimony reveals only two statements regarding something Angel said to her. 16
Specifically, Sara testified that Angel said something about the door to the house, and
that Angel told her that Appellant had hit her in the head with a gun . The trial court
admitted this testimony as an excited utterance . KRE 803(2) provides that "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" is an exception to the hearsay rule.
Our examination of the record leaves us unable to say whether Sara's
testimony should have been admitted as an excited utterance . Factors that should be
considered include the lapse of time between the act and the declaration, the
opportunity, likelihood or inducement to fabricate, the place of the declaration, whether it
was made in response to a question, whether the declaration is against interest or is
self-serving, the presence of visible results of the act to which the utterance relates and
the emotional state of the declarant . 17 Thus, on remand, the trial court should hold a
hearing to determine whether Sara's testimony satisfies the excited utterance exception
or some other applicable exception to the hearsay rule .
We see no need to address the reference to Appellant's prior criminal
record in violation of the pre-trial order as we are confident it will not recur upon retrial.
Crawford, supra and Davis . supra make a clear distinction for purposes of
Confrontation Clause applicability between out-of-court statements to a person in a
position of authority, such as a police officer, and more casual statements made to nonofficial actors . "An accuser who makes a formal statement to government officers bears
testimony in a sense that a person who makes a casual remark to an acquaintance
does not." Crawford, 541 U .S. at 51 .
17
Thomas v. Commonwealth , 170 S .W.3d 343 (2005).
'6
Finally, as Appellant made no claim of entitlement to a directed verdict or
asserted trial error warranting reversal with respect to his first-degree criminal trespass
conviction, we affirm that portion of the decision of the Court of Appeals and the final
judgment of the trial court. However, as required by our analysis herein, we reverse the
decisions of the courts below with respect to the second-degree assault conviction and .
remand to the trial court for further consistent proceedings .
Cunningham, Mcanulty, Minton, Noble, Schroder, and Scott, JJ ., concur.
COUNSEL FOR APPELLANT :
Matthew Boyd
BOYD & BOYD
101 W. Short Street, Suite 300
Lexington, KY 40507
COUNSEL FOR APPELLEE:
Gregory D . Stumbo
Attorney General of Kentucky
Room 118, Capitol Building
Frankfort, KY 40601-8204
Louis F. Mathias, Jr.
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
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