*1 375 remanding the case for another fair trial. more have
As even courts embraced type require
view that errors of this do not reversal,6 I again suggest
automatic
this Court “reexamine its decisional law
concerning peremptory challenges used to jurors
excuse whom the trial court has
erroneously failed to excuse for cause ... bring Kentucky law in
[and] accordance prevailing
with the federal jurispru- 7 dence.”
Because I find no in reversible error
either the majority issue addressed
opinion or the other issues rais-
es, judgment I would affirm the Circuit
McCracken Court. WINTERSHEIMER,
GRAVES
JJ., join dissenting opinion. this BRAY, Appellant,
Steven
v. Kentucky,
COMMONWEALTH of
Appellee.
No. 1998-SC-0746-MR.
Supreme Kentucky. Court of 21,
Feb.
2002.
Lindell,
Commonwealth, supra
689,
Stopher
State v.
See
7.
v.
note 3 at
245 Wis.2d
Fire,
(2001);
State N.W.2d
Wash.2d
Albert Chandler in turn and conclude We discuss each Wilson, Kentucky, Michael G. Assis- al of his denied a fair trial аnd General, Appellant was Attorney Appellate Criminal tant General, Division, Attorney convictions are reversed. Office of the Frankfort, Appellee. Counsel for RE- I. AFFIDAVIT SUPPORTING LAMBERT, Chief Justice. ORDER STRAINING *4 Bray, was convicted
Appellant, Steven claim of error is that Appellant’s second County jury first-degree of by a Marshall a motion for a re- supporting an affidavit He was and two counts of murder. arson victim, appeals Audrey life in and he the prison straining sentenced to order filed right.1 a to this as matter of Court conjunction petition in with a divorce Bray, because it not have been admitted should 8, 1982, home in November a mobile On hearsay. Appellant contained inadmissible ground. the County Marshall burned to restraining for argues that the motion also the bodies of Effie Found inside were mother-in-law, are inadmissible York, Au- order and the order itself Appellant’s prior Both victims had bad drey Bray, they his wife. reveal inadmissible because gunshot prior wounds to the head received acts. police investi- part to this fire. As restraining order was The motion for sought question- for gation, Appellant was 3, 1981, year onе and five filed on June Appellant learned that
ing. It was soon and contained prior to the crimes months the day since the of had not been seen The affida- physical abuse. allegations later, Bu- the Federal crimes. Two months stated, had part, in that vit (FBI), in- Investigation, became reau of in past the “physically [the victim] abused charge brought volved and a federal attention requiring medical point to the flight unlawful against Appellant for abuse or physical fears such and that she methods were prosecution. avoid Sеveral not restrained from bodily harm if he is Appellant, to find by the FBI employed their resi- coming occupying about her or Kentucky Eight Most Want- including the that stipulate television show offered to popular ed List and the dence.” a restraining Over decade order and “America’s Most Wanted.” motion for the Toronto, later, in Bray filed, in was located objected divorce were but petition for Canada, a living he was under false where The trial of the affidavit. to the contents name, Kentucky and he was extradited rec- initially rulеd that the business court prosecution. rule, KRE hearsay exception ords the af- 803(6),2 admission of permitted the charged with two counts
Appellant was under fidavit, held it admissible and also first-degree one count of of murder and activity. 110(2)(b). regularly conducted Records of § Ky. Const. record, memorandum, report, or data A 803(6) Hearsay exceptions: availabili- 2. KRE form, acts, events, compilation, any in ty immaterial. of declarant conditions, diagnoses, at opinions, or made following the hear- are not excluded by, from informatiоn or near the time rules, though declarant say even knowledge, by, person with if a transmitted available as a witness: 804(b)(1)3 statement unchallenged to hear testimony. KRE as former proceeding by his wife a divorce made it to party brought neither has While she earlier in which years two and a half attention, we must address Barnes v. our to shoot ‘threatens appellant said that Commonwealth,4 close simi bearing a case handgun.’ with his rifle or Petitioner at bar. The defendant larity to the case prove offered to This evidence trial for the murder of his wife. was on asserted, matter i.e. truth of the presented two and Evidence threat, had made such a appellant death, had filed years prior half to her she jury to infer permitted restraining order sought for divorce and At no time been carried out. threat had supporting and executed an affidavit subjected to cross- was this statement recited requested order. The affidavit possible exag- to reveal its examination husband, defendant, phys that her facts, or out- abridgement of geration, kill and threatened tо her. ically assaulted Thus, in tri- appellant’s falsehood. right admitted the objection, the trial court Over jury which determined al for murder conviction, his Barnes upon affidavit and was allowed to hear evidence guilt his extensively appealed to this Court. We intent, the tended to establish his which pur rule and the reviewed *5 crime most element of the basic underlying its We stat poses application. to any opportunity without test charged, the ed that the essence of the rule was by evidence cross-examination.5 such opportunity absence of an to cross-examine out-of-court statements offered for the meaningfully distin- We are unable to Concluding truth the con thereof. Barnes guish between the instant case and improperly tents of the affidavit had been instance, In each the v. Commonwealth. admitted, we said: a and affidavit arose out of divorce case order; in in- case, restraining a each appellant sought
In the instant was on stance, past acts of intentionally alleged the the affidavit causing trial for death harm, bodily right challenge physical abuse and fear of of his wife. It was his to instance, oppor- in there was no presented and cross-exam- and each the evidence tunity the truthfulness of the affida- against him. This to test right ine witnesses by Although cross-examination.6 jury permitted was denied when the vit deposition proceeding, or in a kept regularly a different in the course of a conducted regular activity, if it was the course compliance business taken with law in the in practice activity make of that business proceeding, if the or anоther of the same memorandum, record, report, the or data testimony party against whom the is now compilation, by all as shown the offered, or, proceeding, a in a civil action or witness, qualified or of the custodian other interest, opportunity predecessor had an in the source of information or the unless develop the and similar motive preparation in- method or circumstances direct, cross, examination. by or redirect The term dicate lack of trustworthiness. paragraph in- as used in this "business” 794 S.W.2d аssociation, business, institution, cludes every profession, occupation, calling 5. Id. at 167-68. kind, profit. whether or not conducted for case, 804(b)(1) the trial court admitted Hearsay exceptions. In the instant 3.KRE 803(6), the pursuant affidavit to KRE the by following the hear- are not excluded hearsay exception to the records business rule, say the unavailable as a rule if declarant is 804(b)(1), exception hearsay a and KRE witness: testimony. The trial court also former Testimony given as for testimony. Former party to the expressed that as a hearing the view at another of the same or a witness 804(b)(1) case, deposition, KRE is Barnes is a hearing the or pre-evidence code Kentucky Rules of Evi- adoption applicable. not in re- change did not the law this dence argues that The Commonwealth spect. 803(8),7 KRE the affidavit fits within inadmissible The affidavit was hearsay public exception records hearsay. excep It does not fall within the This, too, unavailing. The affida rule. is trial court for its admis given by tions public agency pur made vit was not 803(6) KRE not be applicable sion. Al resрonsibility. to its lawful suant parties rule be requires cause the was under though the Circuit Court Clerk in the normal course of business acting affidavit, Audrey Bray duty to file the in document and that the information and she was under reporting party was the While, court clerk was trustworthy. duty report. to make such a public no in business acting the normal course of alleging physical Accordingly, the affidavit affidavit, the victim filing the motion and support and fear filed abuse supporting was not. Affidavits motions restraining order is outside motion for a may trustworthy, be restraining orders not 803(8). mеaning of KRE may falsify exaggerate parties as affi- Finally, Appellant contends improve circumstances to the likelihood prior davit contained inadmissible bad acts granted. their motion will be There 404(b).8 However, pursuant to KRE we 803(6) fore, KRE cannot be a basis for the affi- need not reach this issue because does the admitting the affidavit. Neither any exception not fall within davit does 804(b)(1), fall KRE affidavit within rule. testimony. hearsay exception for former that the victim’s Upon our determination *6 had The trial court noted that in her affidа- hearsay statements set forth action, former but the party been a to the any fail to meet restraining vit for a order testimony be taken requires rule rule, neces- hearsay to the it is exception hearing a or where cross- deposition at for a Appellant’s to reverse conviction sary As there was no examination can occur. action, (A) by police and oth- Investigative reports have had an divorce would personnel; opportunity the facts stated in the to contest er law enforcеment (B) Investigative reports prepared by or for affidavit. office, agency public an government, a or a 803(8) Hearsay exceptions: 7. KRE availabili- by in which it is a when offered it in case ty of declarant immaterial. party; and following by the hear- are not excluded The (C) findings govern- offered Factual rules, say though declarant even in criminal cases. ment available as a witness: (8) reports. Unless the Public records and and evidence 8. KRE 404 Character evidence circum- of information or other sources crimes. оf other trustworthiness, indicate lack of stances crimes, (b) wrongs, Evi- or acts. Other statements, records, data reports, or other crimes, wrongs, acts is other or dence of compilations any public form of a office prove of a to the character not admissible agency setting regularly con- forth its or person to show action in conformi- in order activities, regularly and recorded or ducted however, may, be admissi- ty therewith. It duty imposed pursuant to matters observed ble: duty there was a by law and as to which purрose, such If offered for some other resulting report, findings from an or factual intent, motive, opportunity, proof of as authority investigation pursuant made knowledge, identity, plan, or preparation, following are granted by law. The not mistake or accident. exception hearsay rule: absence of to the within this sion, must made while be made the statement trial. The has new Commonwealth the event.9 observing the declarant contention that admission no serious hear that “she could Audrey as harmless Here stated regarded affidavit could be lighting he his him and that coughing error. This was flashlight.” had a cigarettes and II. HEARSAY TESTIMONY through observing, while she said event, sound, Appellant’s sight and next claim of error is
Appellant’s her house. The trial court presence near Goins, testimony of Ernestine concern- properly admitted sister, Audrey’s contained inadmissible Audrey’s present statements under ing hearsay. Goins’ concerned impression exception. sense had with the telephone conversation she they were killed. night victims the Goins trial, ar At Commonwealth Audrey Bray the victim had stated admis that York’s statements were gued under the “[Appellant] told her that im present to' the sense pursuant sible house, at the house... was below the [he] daughter, her pression exception. Unlike hill, foot of the the mail box and however, observing not Audrey, she was [Audrey] coughing could hear him she by her statements. an event or condition lighting cigarettes that he was his described her emotion York’s statements further light.” had a flash Goins testified Appellant’s ap al state at the moment York, mother, stated, that Effie her may be ad Statements of fear proach. life, “Honey, my I’m not scared for I’ve 803(3).10 to KRE pursuant missible hurt him or him. nothing never done However, hearsay exception offers no this Audrey But I’m I’m scared because never for York’s statement “I’ve refuge gonna afraid he’s kill her.” is a nothing hurt' done to him.” This or present sense ex impression fact, present not of past statement of rule, 803(1), ception KRE condition. exception describes the as “a statement of her statement re The remainder describing explaining an event or condi and this must lated to her state of mind perceiv tion made while declarant was *7 of rele satisfy fail for failure to the rules immediately ing the event or condition or vancy. Appellant thereafter.” that Au argues mind is not at drey and could a victim’s state of Appellant did not see so Where issue, testimony the is not allowed to be perceived not have that it was him. The Specifically, argues that admitted into evidence. present Commonwealth the did not claim self- impression by sense does not have to be where a defendant death, suicide, sound, defеnse, an accidental or sight, by it could also be smell or ‘little rele- usually statements have present impres- other senses. For sense such mind, Commonwealth, existing emo- then state of clarant’s 9. See Slaven tion, sensation, (such physical S.W.2d condition or motive, intent, plan, design, mental feel- as Hearsay exceptions: 10. KRE 803. availabili- health), ing, pain, bodily and but not in- ty of declarant immaterial. memory cluding or belief a statement following by the hear- The are not excluded prove believed un- the fact remembered or rules, though say even the declarant execution, revocation, it relates to the less available as a witness: identification, will. or terms of declarant’s emotional, mental, existing Then physical of the de- condition. A statement (v) declarant, except strong place toward excitement of the the vancy providing intent, (vi) declaration, of appellant’s presence inference actions or the culpability.’11 of the there of visible results act or occurrence to which the utterance re- statе of mind at issue in the York’s was not lates, (vii) the utterance was whether case, Appellant any nor did invoke defense (viii) response question, made in to a might that her make statements relevant. in- against whether the declaration was remand, Upon entirety of York’s state- self-serving.13 terest or ments should not be admitted into evi- dence. that argues The Commonwealth the tes- III. APPELLANT’S REACTION timony is inadmissible under Jarvis THE
UPON HEARING OF MUR- con- argues factors. It that the “event or DERS Audrey dition” was the death of not the by Audrey’s statement Candie of death.
Appellant’s next claim of еrror con Therefore, day there time lapse was a two cerns the trial court’s refusal to allow the testimony Bray regarding Ap “startling of Candie between the event” and Also, pellant’s hearing by reaction to of the victims’ Appellant. statement Com- permitted testify deaths. Candie was argues Appellant monwealth that did not by Appellant that there was a reaction but proving sustain his burden of permitted specify she was not what that hearsay exception. within a falls avowal, reaction was. On Candie testified factors, Applying the Jarvis we hold deaths, Appellant that when she told proffered testimony should have scream,” a bloodcurdling he “let out 803(2). pursuant admitted to KRE been God, my Audrey.” He main said “oh not lapse day While there was a two between tains that his reaction and statement show the time Appel- the time of the deaths and he hear genuinely upon shocked them, the were not lant was told of deaths ing about the deaths. The the event to which the rule refers. this Appellant contends Candie to event is statement made within exceрtion falls the excited utterance dead. that the victims were The 803(2) rule. KRE defines event could not be the murders because an excited utterance as “a statement relat- presumed to be innocent and ing to a event or made startling condition to have known presumed therefore is not while the declarant under stress he of the murders until heard from Candie. condition.” In excitement caused Commonwealth,12 great Jarvis v. this Court set trial entitled to defer- court is where, here, eight guidance to use for when out factors as admis- especially ence *8 determining which utterances fall within sibility is debatable. We need not decide the rule. These factors are: of the excited utterance whether exclusion alone,
(i)
testimony, standing
require
would
between the main act
lapse of time
(ii)
declaration,
whether
exclusion could be
reversal or
its
opportunity
and the
(iii)
retrial,
fabrication,
Upon
viewed as harmless error.
the in-
or likelihood of
(iv)
fabrication,
the evidence
be admitted.
to
the actual
should
ducement
Jarvis,
Commonwealth,
(quoting
385 requested to the second- by the did to trial court refuse trial court not amount lowed re- upon of arson instructions and degree an abuse discretion.19 mand, on be instructed jury the should ARSON VI. such offеnse. Second-Degree A. Arson instruction first- Denial on B. of directed verdict charge
Appellant’s degree final claims of error arson for first-degree from his conviction arise rea argues for the that Appellant contends that since the arson.20 above, been should have stated he sons already gun from two victims were dead first- verdict on the granted directed on wounds the home was set shot before evidence degree charge. arson Under the fire, jury have the the could believed that whole, be verdict will not as a directed occupied house was not inhabited or clearly granted unless it is unreasonable it have found living persons; could jury guilt.23 to find The evidence for a second-degree guilty him of arson21 inconclusive as to the victims whether giv an instruction should have been such the house living or dead at time the were en. The Commonwealth contends such, error set afire. As there was no is first-degree designed arson statute first giving of an instruction on the the of while “dwellings,” cover destruction arson. degree arson is de second-degree statute signed to cover other such as situations VII. CONCLUSION profit.
arson for of the summary, “An on a In it is the opinion instruction lesser-includ if of given ed offense should be the evidence admission in evidence Court restraining juror Audrey Bray’s such that a for a is reasonable could doubt affidavit re- guilty prejudicial that the defendant is of crime order amounted to error charged, but of for a new We are guilty quiring conclude he is reversal trial. opinion Appel- offense.”22 The evi that exclusion of lesser-included also learning of in this in reaction to permitted dence case would have lant’s statements jury to conclude that murder of his wife and the victims mother-in-law Moreover, killed before the fire also error. it was error been was started Effie court the trial should have instructed admit statements made trial jury finally, as to And it was for the the lesser-included offense York. error second-degree It was for the an instruction on second- arson. error court refuse Commonwealth, damage a Copley Ky., explosion destroy v. 854 with intent to or See (1993); S.W.2d 748 v. Mad building: Commonwealth dox, (1997). Ky., 955 718 another; S.W.2d (a) оr Of another, (b) Of his own or of to collect degree. in the 20. KRS 513.020. Arson first proceeds facilitate collection insurance (1) person guilty A of arson in the first such loss. when, destroy damage a with intent to or building, explo- he or starts a fire causes an Commonwealth, S.W.2d Ky., 22. Webb 904 v. sion, and; 226, (1995) (citing 229 Luttrell v. Common- (a) occupied building is inhabited or or 75, wealth, (1977)). S.W.2d building person has reason to believe occupied. may be inhabited or Benham, Ky., 816 23. Commonwealth degree. KRS in the second 513.030. Arson S.W.2d person guilty second A of arson in the degree when a fire causes an he starts *11 degree reasons, arson. For these
judgments of conviction are reversed and
this cause remanded for a new trial
conformity herewith.
COOPER, GRAVES, JOHNSTONE,
KELLER, STUMBO, JJ, concur.
WINTERSHEIMER, J., in part concurs in part
and dissents because the
documents were properly admitted as an
official public pursuant record 803(8).
exception found in KRE WHITTAKER,
Robert L. Director Special Fund, Appellant, IVY; Peabody
Edward Compa E. Coal
ny (Settled); Campbell, Richard H.
Jr., Judge; Administrative Law Compensation Board, Appel
Workers’
lees.
No. 2001-SC-0322-WC.
Supreme of Kentucky. Court
Feb.