Brooks v. Commonwealth

Gary BROOKS, Appellant, Kentucky,

COMMONWEALTH

Appellee.

No. 2001-SC-0458-MR.

Supreme Kentucky. Court of

Sept. 2003. indicated that

Brooks, others, acting in complicity with son, including Wood and minor robbed a cab driver. Brooks used a to cut knife driver, the throat of the cab and during struggle followed, the he also slashed and stabbed the cab driver the face and on his hands Subsequently, and arms. an informant contacted police the and told present them he had been when .that planned Brooks the crime and that Brooks showed him a sum of money and told him that he and the others committed the rob- bery. This informant then assisted the police by wearing a wire and obtained Hoffman, Richard Assistant Ad- Public incriminating statements from Wood and vocate, Department Advocacy, of Public posi- her minor son. The cab driver/victim Frankfort, Counsel Appellant. tively identified’Brooks at trial. III, General, Attorney A.B. Chandler Brooks testified in own defense and his Jr., Floyd, Samuel J. Attorney Assistant denied planning committing or the rob- General, Division, Criminal Appellate bery. He that the testified other individu- Frankfort, Counsel for Appellee. als, informant, including the had commit- robbery ted the and that Wood framed Opinion of the Court Justice him because he marry refused to her on WINTERSHEIMER. telling several He also occasions. denied appeal This is from a judgment based on the informant that he committed the rob- jury verdict which convicted Brooks of bery driving him to the scene of the attempt murder, criminal to commit first- mistrials, occurrence. After two Brooks degree robbery and two counts second- murder, attempted was convicted of first- degree unlawful transaction with a minor. degree robbery and two counts unlawful He was found to be a second-degree per- transaction with a minor. As a second- felony sistent offender his sentence offender, degree persistent felony he was was years enhanced to a total of 70 years sentenced to a total of 70 in prison. prison. appeal This followed. The questions presented are whether judge correctly permitted the trial video- Videotaped Testimony I. Prior

taped testimony from an incarcerated wit- ness; whether the audiotape argues of the state- Brooks the trial judge police ment made prejudice witness erred to his substantial and de admissible; closing whether argument nied him the to confront witnesses by. prosecutor improper; against whether him that an in when he declared victim physical injury suffered serious recently carcerated witness who had at judge tempted per whether the trial allowed too suicide was unavailable and description much of prior videotaped testimony misde- mitted the meanor convictions of Brooks into the sen- that witness to be shown to the lieu tencing portion testimony. disagree. of the trial. of her live We were if the facts asserted to determine day before pretrial hearing At a to do declined advised the Defense counsel prosecutor correct. scheduled discussion, Wood, an incarcerat- further judge so. After witness, suicide and attempted telephoned prison ed judge himself be available to to cor- would not in order hearing in-chambers in li- a motion The filed Commonwealth to ascertain the the affidavit and roborate play videotape allowed to mine to be Nei- of the witness. apparent condition trial of testimony from an earlier objected to the trial party ther at the being present in lieu of her pris- at the representatives speaking to person. third trial Commonwealth spoke to an officer on. The trial play videotape was allowed the circumstances verified prison the who 20, 2000 testimony September from reported. The had prosecutor that had ended in a mistrial. At the trial which although they could officer stated that also prose- was called earlier Wood any or- and would follow transport Wood The cution and recalled the defense. regard, in that it would be der of the court trial involved the same defendant earlier prison and that the against medical advice charges. offense on the same same in liability potential did not want the 7.20 The relied on RCr Commonwealth happened to Wood. anything event that permit 7.22 which the use of and RCr conversation, trial Following is previous where a witness the affidavit of judge found that based on objected Defense unavailable. counsel personal contact prosecutor and his claiming comport that the evidence did not that facility personnel with the correctional hearsay exception with the under trial. De- unavailable for the witness was 804(b)(1) and that the defense did not be- might, told the court that he fense counsel Mary legally unavailable. lieve Wood Brooks, a con- consulting after with seek unavailability He claimed that the was due tinuance. to the inaction of the Commonwealth The preventing attempt.

not suicide morning, judge the trial following The rejected judge arguments the defense meeting, in-chambers conducted another that the unavailable and found witness was present, and ruled this time with unavailability and that such was not caused playing that he would allow by the Commonwealth. in- testimony. judge also objected finding Brooks also as to if he wanted a quired directly of Brooks unavailability asserting that the Common- ruling. light of his continuance presented physical had no wealth There that he did not. Brooks stated regard to her illness. The Common- speedy for a no formal motion made presented a sworn affidavit wealth then this issue was waived. Consequently, about the information prosecutor from the exer judge properly The that the affidavit noting

he had obtained determining discretion cised his sound numbers of telephone contained the also unavailable to attend Wood was Kentucky spoken he had to at the persons infirmity or because of sickness Institute Women. Correctional 7.20(1). a decision pursuant to RCr Such countered that it did not believe defense of the trial the sound discretion is within the trial was sufficient and affidavit Commonwealth, like, Lovett v. judge. See if defense counsel would judge asked (2003); v. Ruppee see also record, 103 72 either or both S.W.3d telephone on the Commonwealth, 484 Ky., 821 S.W.2d in the affidavit prison officials listed 822

(1992), Commonwealth, citing charge Carter v. the same offense and same are (1990). Ky., 782 S.W.2d 597 Such a deter- with. also v. dealt See Wells Common wealth, mination mil not be reviewed unless the Ky., 562 S.W.2d 622 cert. judge clearly S.Ct.181, decision of the trial is 861, unrea- denied 439 U.S. 99 58 A Ruppee, supra. 170; Roberts, sonable. careful re- L.Ed.2d v. Ohio U.S. Cf. view of the record here 2531, shows 100 S.Ct. 65 L.Ed.2d 597 clearly decision was not Sowders, The case of v. Stoner F.2d judge correctly unreasonable. The trial (6th Cir.1993), factually is different concluded that there had sufficient because case the Commonwealth showing unavailability as to the of Wood why failed show two witnesses were because of health concerns. See Bruce give unavailable to the same Commonwealth, Ky., 441 S.W.2d 435 court when the depositions been taken day pat before trial. No such factual tern in this case. The trial occurred Any concerns for the confrontation was correct. clause lack merit. There an exception is to a defendant’s constitutional to be II. Admissible Audiotape against confronted the him with witnesses Brooks contends a where unavailable witness is and has judge prejudice to his substantial erred given testimony previous judicial at pro him right and denied his Sixth Amendment ceedings against the same defendant which him against to confront when the witnesses subject by was to cross-examination judge the unredacted re permitted 719, Page, defendant. Barber v. 390 U.S. to corded statement of Wood made 88 S.Ct. 20 L.Ed.2d 255 . Bar for the police played the to be even ber, supra, factually is otherwise distin though present she not this was guishable. That involved a case witness disagree. We prison who was located a federal This error is related to assignment another state. The court held that the of involving mere absence of a not sufficient first the testimo- witness is the issue for grounds dispensing ny pretrial hearing with the constitu of Wood. At the confrontation, trial, judge tional consid- particularly day of before the cooperation admissibility view of the increased of the between ered issue of the objec- prior testimony states and between states and of the the federal Wood. One was that government respect processes by to tions raised defense counsel he, previous obtaining presence predecessor of witnesses from unlike his jurisdiction. trial, outside the did'not intend to cross-examine Wood by taped to the introducing statement Here, presence the witness’ was compro counsel police. Brooks notes that defense mised her medical health. Common exception an claimed this .decision Howard, Ky.App., wealth v. 665 S.W.2d 804(b)(1) exception to the be- under (1984), if stated that testimo cause, referred analysis, under his the rule ny found trial court to be is reliable only having opportu- not to there been an trustworthy, and the was sub witness to the witness nity cross-examine cross-examination, ject it no to makes dif testimony, former but also a similar motive prior testimony ference whether the comes with regard thereto. trial, by way previous of deposition, pre argu- liminary hearing, or as in the Howard heard additional case, hearing, provided question morning a reduction on this bond ments Misconduct III. Prosecutorial objections to trial. He overruled made admissibility taped statement judge properly overruled ruling was not erroneous. police. Such argu closing the defense taped Defense counsel introduced complains Brooks prosecutor. ment of the trial for statement of Wood at the second re required that reversal is because pre- As we impeachment. purpose supposedly shifted prosecutor marks of the in this viously opinion, determined the defendant when proof the burden of availability concerning the waived the issue non-family argued that there were he the third trial and the trial of Wood at could have witnesses the defense member correctly her earlier testi- admitted find no failed to do so. We called but mony equivalent deposition. as the for such a claim. foundation 7.22. The former See RCr 7.20 and RCr subject all the all of the de proper The record indicates that have exceptions objections which could detective except police fense witnesses advanced to exclude the of Brooks and that were relatives given. the witness when it was first See brought by defense up matter was first 7.20(2). general This rule fol- RCr is During closing argument. counsel in his E. jurisdictions. lowed in most See John testified that because the defendant Theuman, Annotation, Testimony Former job, traveled on the he supposedly he Trial as Subsequent Subject Used family than mem very few friends other Ordinary Objections and Exceptions, prosecutor The remarks of the bers. A.L.R.4th 514 closing argument produce did not error. recently noted in Maxie v. Common As however, jurisdictions,

Some have wealth, (2002), Ky., prosecu 82 S.W.3d 860 exception general carved out an to the rule are allowed wide latitude clos tors concept based on the of waiver. See Theu may upon comment ing arguments and man, supra, citing e.g., Scribner v. Palm By comparison, er, presented. 90 156 P. 531 which Wash. in this in prosecutor of the objec comments upheld the denial of the defendant’s ruling and the improper stance were not competency tions as to the of certain for There was no testimony by plaintiff judge mer a deceased be the trial was correct. cause the defendant himself elicited that constitutional violation.

testimony in cross-examination at the for agree jurisdic

mer trial. We with those Physical Injury IV. Serious tions and find that waiver occurred here deny did not The taped when defense counsel introduced the he process his to due when Brooks pur trial. The statement the second determination that the defendant made a in not ported change strategy was and that the victim was a violent offender objection. grounds sufficient to sustain the injury. The trial 804(b)(1) physical suffered serious require Nor the exclu does purposes judge determined for sion of otherwise admissible testimo ineligibility provi parole violent offender in, or ny changes because of second injuries sions of KRS 439.3401 about, thoughts strategy. were by inflicted Brooks on the victim judge correctly admitted the testimo injuries. followed physical This serious ny including taped statement Wood jury finding guilty verdict Brooks police. There was no Sixth Amendment charged offenses. violation.

824 wealth, ruling Ky.App.,

Brooks now claims that this was S.W.2d jury in error re- specifically because “the The medical in and nonmedical evidence jected finding injury” a of serious physical support decision the trial case and because there was “no record evidence inju that the victim suffered serious physical that the victim suffered a serious Thus, ries the hands of the defendant. injury.” It should be that the understood properly subject he was a for the violent statute which was amended 1998 re- parole offender limitation provided KRS quires a violent offender to serve at least 439.3401. becoming eligible 85% of a sentence before Here, jury correctly found from the parole. Myers See v. Commonwealth evidence that to kill attempted Brooks physi- S.W.3d 594 Serious victim but not mean that does 500.080(15) injury cal is defined KRS jury thereby rejected finding a of serious “physical injury a which creates substan- jury physical injury. The instructed was death, tial risk of or which causes serious first-degree on assault as lesser-included prolonged disfigurement, prolonged attempt offense of criminal to commit mur- health, impairment prolonged loss or though der —even offenses are Class- both impairment any bodily of the function of Having guilty B found Brooks felonies. organ.” offense, greater did not need Here, there was sufficient evidence to It to reach the lesser offense. should be show that the inflicted defendant wounds noted that no defense there subjected on the neck which the victim to first-degree assault instruction on substantial risk of death and seri- caused any physical the basis of lack of serious prolonged disfigurement. ous and injury ruling by evidence. The the trial most immediate risk was occasioned judge was There no con- appropriate. Hospital

victim’s loss of blood. records stitutional violation of nature. emergency demonstrate that when techni- highway, cians reached on the the victim V. Prior Convictions Misdemeanor large amount of blood was his lap. argues Emergency room records confirm that fol- he allowed judge committed error when treatment, lowing patient the was to con- far too much the Commonwealth to enter tinue to have close observation. description misdemeanor convic prior incident, During the criminal the sentencing the tions into evidence victim had been ordered to travel miles out phase disagree. of the trial. We county into the to a remote location where sentencing phase, the Com- During the long he was attacked. There were two presented probation pa- monwealth a and victim crossing slashes on the neck of the felony prior role officer to a about and he had stab wounds side as- first-degree of Brooks for conviction multiple of his face and neck and defensive sault under extreme emotional disturbance upper wounds on both extremities. peniten- year with a sentence of one fact that was found he the victim before Thereafter, in- tiary. the Commonwealth life change bled to death does not to pertaining troduced certified records threatening injuries. nature of his Al misdemeanor convictions over defense testimony pre though may medical be objections. phys proving ferred method of the serious 532.055(2)(a)(2) intro- injury requirement, lay testimony may permits the ical KRS prior v. duction of the nature of offenses be considered. Johnson Common trative, Here, Com rather than exhaustive. See which a defendant was convicted. introduced a criminal Higgs, Ky., Commonwealth v. 59 S.W.3d 886 monwealth convictions complaint associated with (2001), v. Common citing Cornelison minor, for unlawful transaction with a ter- (1999). wealth, It has Ky., 990 S.W.2d threatening by theft unlawful roristic full provide a recognized policy taking complains under $300. sentencing information to a and accurate the information contained the criminal Cornelison, supra. See also jury. Huff far the amount of infor- complaint exceeds Commonwealth, Ky., 763 S.W.2d 106 jury mation a is allowed to hear for the purpose imposing a sentence. He relies Commonwealth, Here, provided regard information on Robinson v. S.W.2d 853 This Court stated ing misdemeanor convictions of Brooks all that case that that is admissible as to directly relevant to the crimes for a gener- the nature of a conviction is just guilty. had found him which description al of the crime. This Court third-degree complaint The criminal on the say went on to that it would be sufficient unlawful transaction with a minor showed judgment testimony to introduce the previously engaged that Brooks the defendant assaulted the woman sort of coercive conduct which he used living. with whom he had been robbery minors induce the two into A careful the record examination of complaint The criminal cab driver. objection shows that there was no to this regarding threatening terroristic indicated on grounds that it was more to the sort of prone that the defendant was statute, than permitted and there- inflicted on the here. violent conduct victim prejudiced fore the defendant. The de- Finally, complaint the criminal on the interpose general fense counsel did a ob- charge taking unlawful under demon $300 jection Gary misdemeanor record of strated an inclination to commit theft conference, Brooks. Earlier at a bench by relatively small crimes motivated the defense counsel stated that he would such as that which he took amounts cash convictions, object to the misdemeanor al- Robinson, in this case. from the victim he though felony knew the convictions factually distinguishable because supra, is were admissible. complained penalty evidence there rule, general party As a a must of a consisted of victim objection make a proper the trial court testify at prior assault who was allowed to request ruling on that length. No such detailed the issue is waived. Commonwealth v. permitted penalty phase here. The misde Pace, (2002); accord 82 S.W.3d beyond clearly meanor evidence was not Commonwealth, Ky., Bell v. 473 S.W.2d by limitation set for such evidence (1971). Here, Brooks waived the issue also Hudson v. Common Robinson. See because his stated at trial was wealth, The Ky., 979 S.W.2d 106 not at all of which now raises the nature he provided here was relevant to information appeal. on There was no federal or state arriving appropriate at an sentence for this constitutional violation. v. Com particular offender. See Williams in reach There was no error of kind monwealth, Ky., 810 S.W.2d 511 ing promulgated by the decision the trial and sentence judgment of conviction in judge. The elements enumerated recognized being as illus is affirmed. rule have been (1)

LAMBERT, C.J., GRAVES, J., Thus, jority provides. briefly: and an as- sailant, JOHNSTONE, others, acting complicity with concur. and COOPER robbed,a JJ., in rural cab driver Henderson only concur but as to result on issue I. and, KELLER, County, Kentucky, struggle, J., by separate opinion dissents STUMBO, J., used a knife to slash and stab the driver’s joined by and is who also (2) face, hands, arms; subsequently, and by separate opinion. dissents contacted “Cowboy” Kenneth McClanahan KELLER, Justice, dissenting. the authorities and informed them he Because substantial evidence supports, present Appellant planned when determination that court’s crime, and that had later (‘Wood”) Wood was unavailable money him a told him shown sum of and trial, I Appellant’s agree third with the (Appellant), Appellant’s girlfriend that he majority’s conclusion that the trial court Wood, B.W., Wood’s minor son and B.W.’s properly to in- allowed Commonwealth friend C.P. had committed the crime to- videotaped prior (3) troduce sworn tri- Wood’s gether; McClanahan then assisted the I testimony. respectfully al dissent from wearing a investigating officers wire majority the result and reached incriminating and state- obtaining taped vote to Appellant’s (the reverse convictions and getaway from initial driv- ments Wood trial, to remand the case for a er) (who new howev- and assisted the assailant B.W. er, it because the trial court erred when robbery by taking the driver’s during the permitted the introduction of au- Wood’s mother’s vehi- money bag and wallet to his unsworn, diotaped, (4) Wood, out-of-court interview cle); B.W., and C.P. Appellant, investigating part par- (5) officers and C.P.’s charged; were all B.W.’s and my In testimony. cel of her juvenile court charges disposed of were view, evidentiary issues this case guilty plea in circuit and Wood entered a (6) sentence; can—and should—be resolved under the prison and court received a Kentucky of Evidence. Because the trial, Rules his theo- Appellant proceeded to and McClanahan, finding trial court’s that Wood was unavail- ry of the case was that erroneous, clearly able was not Wood’s Wood, B.W., C.P., had committed the properly admit- robbery, up” had “cooked that Wood 804(b)(1). ted under KRE The lion’s share as the as- finger Appellant the scheme to confession, however, out-of-court refus- Appellant’s sailant as retribution hearsay that does not fall constituted rank Prior to al to become her fourth husband. hearsay exception within an rule subject present of the the trial that is the Court, ju- and thus should have been excluded.1 separate appeal two to this reach a unanimous ries were unable properly To contextualize the error guilt. Appellant’s as to verdict case, necessary give I it a more find ex- direct During recitation of the factual back- the Commonwealth’s extensive second Appellant’s ground focusing upon of this amination of Wood case— planning, prepa- Appel- defense and Wood nature of described Wood, ration, robbery. De- including lant’s and execution cross-examination consisted cross-examination the manner in out-of-court fense counsel’s which Wood’s KRE 613 foundations laying the ma- primarily confession was introduced —than Kentucky.”). ("Hearsay except Supreme 1. is not admissible Court of KRE n provided by these rules or rules of the as concluded, defense tape bery. When inconsisten- alleged with impeach to Wood follow-up ques- in fewa testimony engaged and a counsel trial between her cies inconsisten- alleged to given had to establish that Wood tions previous statement (10) tell yourself ten heard e.g., you her arrest upon officers “Now police cies— n go, go’ defense Specifically, Gary ‘go, the crime. said days after officer that includ- inconsistencies his cross- counsel addressed then he concluded right?” —and (1) leaping Appellant, while no ing: whether The Commonwealth examination. robbing the cab driv- However, car after into Wood’s defense examination. redirect throat, ex- slicing and the driver’s er to to the stand later recalled Wood counsel (as bitch, “Drive, Wood drive!” claimed Appellant’s for groundwork lay additional (as trial) go” Wood “go, go, at testified I take wouldn’t “you lied on me because to audiotaped in statement had stated her i.e., more my as you bride” defense — (2) during her trial police); whether regarding questions 613 foundational the knife testimony, in she described which marry to Appellant she had asked whether and ex- allegedly used Appellant that and people of other presence in the his beard plained shaved whether, Appel- she discovered when immediately pur- after the crime for else, already married to someone lant was Wood changing appearance, his pose “pay- to the effect of made statements she regarding the crime disclosed new details The case pay.” and “he’ll are hell” backs (3) whether, time”; “for the first and jury to the subsequently submitted contrast to her earlier statement deliberations, de- and the trial court its “getting in which she described police unable jury when the a mistrial clared it,” trial ‘hype’ of Wood’s caught up a unanimous verdict. to reach testimony emphasize to that her attempted Ap- to trial court ruled After the of her own role in the crime and the role trial the Common- pellant’s third result of coercion. Appellant’s son was the videotaped introduce Wood’s wealth could response many In of these KRE trial, Ap- the second from stated that questions, foundational Wood requested counsel new defense pellant’s she could not remember the exact words videotape to used her statement to trial court redact the that she had that the (2) years After a hand- former police portion Appellant’s two earlier. where omit I ful “I remember what audiotaped of Wood’s can’t played trial counsel had Wood’s responses, back defense counsel said then” police. out-of-court statement just “Why play don’t we stated/inquired And, Appellant’s motion. court denied lengthy After a bench confer- tape?” trial, thus, after all of Appellant’s third ence, exactly transpired. that is what in person” “live and the Commonwealth’s (1) rolled a the bailiff witnesses testified: remained seated on the witness

Wood jury; cart” front “media TWVCR counsel stand while (2) jury that informed the the trial court jury approximately- for the played person was unavailable Wood fifteen-minute-long audiotaped interview admonished but During officers. investigating “hear- from give Wood’s she was interview, indicated that Wood if it would credibility much as authorities, ing” started “cooperating” with the person because had testified Wood stating that of the events her narrative time she under oath at the had been Wood job,” pro- and “Gary go wanted to do prior “hearing”; at the in soli- testified Appellant’s role ceeded to describe testimony and her out- both Wood’s executing the rob- citing, planning, 828 audiotaped police descriptions Appel-

of-court statement to sion” consisted of (with played Simply were for the lant’s conduct rather than her own. 804(b)(3) stated, clerk KRE muting court’s bench and fast-for- neither nor oth- conferences). warding through permitted the bench er rule introduction extrajudicial Ap- Wood’s statements about The trial court it erred when denied pellant’s conduct.7 Appellant’s motion to redact out- Wood’s however, videotape majority, of-court confession from the that not address does testimony. contained former trial Wood’s substantive issue of whether Wood’s was, fact, Despite majority’s suggestion extrajudicial to the “confession” n confession, contrary,2 Appellant’s out-of-court trial. properly Wood’s admissible at Instead, although played during majority her earlier testi- holds that not, itself, mony, object playing to the testimony,3 and was waived his not, therefore, certainly “testimony given Appellant’s former audiotape because audiotape hearing as a witness another trial counsel had introduced proceeding”4 police same or a different interview his Wood’s 804(b)(1). In would be admissible under KRE cross-examination at the so Instead, it ac- doing, majority adopts interview contained extra- what Wood’s judicial minority position, knowledges statements5 could be admit- to be a “you ted into evidence at trial if characterized as made only which could be it,” bed, they independently exception your you sleep satisfied an get now hearsay Although upon pre-WWI rule.6 a handful authori- apparent reliance ty, by any of individual statements contained within not been cited court which has WWII, holds, only on a interview would have admissi- since Wood’s before 801A(a)(l) statutory interpretation, that a ble under KRE state- matter of objections por- permit ments that were statute did not inconsistent Wood’s signifi- Most testimony, inculpatory testimony.8 and certain tions of former however,' may majority opinion’s un- cantly, statements have been admissible 804(b)(3) analysis ignores all our own against der as statements waiver but interest, former addressing objections much of “eonfes- rules testi- Wood’s Commonwealth, (holding that "state- 2. Brooks v. 114 S.W.3d 129 L.Ed.2d 476 ment,” 818, (2003) (“Nor 804(b)(1) 804(b)(3) single "a under FRE means does KRE report rather than "a require declaration or remark” the exclusion of otherwise admissible narrative”). in, or prior testimony changes because of or sec- about, thoughts strategy. ond (“Hearsay within 6. See KRE 805 included judge correctly prior testimony admitted the hearsay hearsay under the is not excluded including taped po- of Wood statement to part of the combined statements rule if each added)). (emphasis lice.” hearsay exception to the conforms with an rules.”) provided in these rule (7th 3. BLACK’SLAWDICTIONARY1485 See "[ejvidence ed.1999) (defining "testimony” as Commonwealth, Ky., 43 v. 7. See Osborne gives competent witness under oath that a 234, S.W.3d 239-241 deposition.” (empha- in an or affidavit added)). sis 595, Palmer, Wash. 156 P. 8. Scribner v. 531, (1916) ("It testimony of the is the 804(b)(1). 4. KRE given in a not deceased former witness it, positive plain part of which is in some 801(a) ("A ... an at the second trial. 5. See KRE 'statement' is terms made admissible assertion!)]”). no room for construc- oral or written Williamson The statute leaves Cf. States, 2431, tion.”). 512 U.S. 114 S.Ct. United cross or oth- succeeding serving Kentucky Rules of Criminal mony. The (3) (1) three testimony questions a and within treat witness’s er Procedure: ques- equivalent of a service of the last days a trial as the after former (2) admissibility of make the authorized.11 deposition;9 tions subject testimony a witness’s former by judi- majority opinion adopts, Today’s Evidence;10 and Kentucky Rules of fiat, to RCr exception a new fourth cial objections at explicitly authorize 7.20(2)’s rule that former testimo- general and set testimony of portions deposition objections that proper to all ny subject is such circumstances under which out the time the raised at the could have been objections may been waived: have If the testimony originally given. at the trial or Objections may be made rules, have we wishes to amend its Court any de- hearing receiving done As have not procedures to do so. we any reason position part or thereof 7.20(2) as so, however, RCr apply I would of the evi- require that would exclusion with the ma- disagree I therefore written. present if the were then dence witness jority’s apparently ad hoc conclusion however, that: testifying; provided, object to this Appellant waived his (a) of a objections competency hold hearsay, and I would inadmissible competency, witness or to the rele- it failed to trial court erred when vancy, materiality testimony or of testimony videotaped prior redact Wood’s to make are not waived failure Because the requested. as taking before or of them audiotaped admission of the erroneous deposition ground unless the im- prejudiced Appellant confession objection might is one that have bolstering Wood’s sworn testimo- properly if pre- obviated or removed I reverse convic- ny, vote to time; sented at that indictment to the tions and to remand this (b) irregularities occurring errors and trial court for a new in the man- in the oral examination taking deposition, ner of in the STUMBO, J., joins dissenting answers, in questions form of the opinion. the oath or affirmation or and errors of parties, conduct STUMBO, Justice, dissenting. obviated, kind that be any might I dissent from Respectfully, must removed, if promptly pre- or cured did holding that the trial court majority’s unless seasonable sented are waived re- admitting the unredacted not err taking is made at the corded Wood. deposition; (c) of the Sixth The Confrontation Clause objections to the form of written to the United States Constitu- Amendment

questions are waived unless served through to the states applicable tion made writing party propounding on the Amendment, guarantees the Fourteenth the time allowed for them within 7.20(1) ("At any ("For upon duly the trial or purposes a 10. RCr of Rule 7.20 9.RCr 7.22 deposition, hearing, part or all of a so given by transcript authenticated far evi- under the rules otherwise admissible previous the same in a trial of witness used_” added)). dence, may (emphasis be district or circuit court on offense in depo- charge equivalent of a shall be the same 7.20(2). sition.”). 11. RCr confession, all criminal the ac- prosecutions, including: immanency “[i]n enjoy cused shall ... con- status; be charges; her co-defendant against fronted with him.” To witnesses blame; participants’ tendency to shift guarantee overcome this there must abe procedural safeguards omission viable v. exception. Maryland Craig, 497 of oath and limited or- restricted cross- 836, 3157, 111 U.S. 110 S.Ct. L.Ed.2d 666 examination, any all create doubt as to (1990). “particularized guarantees of trustworthi- Roberts, 66, ness.” at supra, 100 S.Ct. case, In pre- the Commonwealth 2531. sented an affidavit and the

made a personal inquiry as to Ms. Wood’s Ms. unavailability Appel- Wood’s denied unavailability. Satisfied that Ms. Wood opportunity lant the to confront his accus- unavailable, was indeed judge per- er at his third trial. The trial court be- prior mitted admission of Ms. Wood’s testi- lieved there was sufficient evidence mony videotape. via Appellant’s overcome the denial of Sixth

If only issue was whether guarantee. disagree. Ms. Wood Amendment I Ms. successfully was un- characterized as an confession did not bear “indi- Wood’s witness, available Appellant’s argument reliability” cia of “particularized guaran- would fail. The was satisfied tees of and thus in- trustworthiness” adequately the Commonwealth dem- admissible. unavailability, onstrated Ms. Wood’s thus Defense counsel that the con- requested meeting the rule of necessity required by fession be redacted from the the Confrontation Clause. Idaho v. being presented the second trial 805, Wright, 3139, 497 U.S. 110 111 S.Ct. third trial. The (1990); Roberts, L.Ed.2d 638 Ohio v. 448 judge’s to allow the unredact- decision 56, 2531, U.S. 100 S.Ct. 65 L.Ed.2d 597 testimony containing ed Ms. custo- Wood’s dial confession denied his Sixth However, the issue in this case is wheth- Amendment confront his accuser right to er it error to include all testimo- therefore, was reversible error. ny given by Ms. prong Wood. second of the requires Confrontation Clause test before admission of from an there an

unavailable witness must be “indi- Roberts, 66, reliability.” supra,

cia of objected 100 S.Ct. 2531. Defense counsel Kentucky, COMMONWEALTH that portion inclusion of of Ms. Appellant, prior testimony containing her con- v. fession that was obtained “custodial interrogation.” BRANDENBURG, Appellee. Elizabeth Traditionally, statements obtained No. 2001-SC-0722-DG. through leading questions the use of re- Kentucky. Supreme Court of garding a serious crime and the role of a party in that crime have been viewed 18, Sept. 2003. Lilly Virginia, the courts as unreliable. 1887, 144 L.Ed.2d U.S. S.Ct. totality A review of the surrounding

circumstances Ms. Wood’s

Case Details

Case Name: Brooks v. Commonwealth

Court Name: Kentucky Supreme Court

Date Published: Sep 18, 2003

Citation: 114 S.W.3d 818

Docket Number: 2001-SC-0458-MR

Court Abbreviation: Ky.