*1 ipation. Appellant agreed testified that he victim,
only robbing a claim about
which closely he was cross-examined. Yet
co-defendant Dunn’s claim put similar jury jury
before the without hearing
any questions as to the validity of his
assertion. While it is true that wit- other contested Appellant’s testimony
nesses issue, the fact remains that the man put
who Appellant’s veracity on the line
was not subject to cross-examination and jurors had no opportunity judge
themselves his truthfulness. This be-
lieve was reversible error.
Additionally, I find the verdict forms to
have been in error. The verdict form sub
mitted to the provide did not the jury opportunity, upon the finding of an circumstance,
aggravating impose any
sentence less than life without parole for
twenty-five years. repeatedly We have
rendered opinions criticizing similar ver See,
dict e.g., forms. Chumbler v. Com
monwealth, Ky., 488, 905 S.W.2d 497-98
(1995); Commonwealth, Foley v. Ky., 942 876,
S.W.2d 888-89 and Haight v.
Commonwealth, Ky., 938 S.W.2d
(1996). Here, any cases, unlike of those
there is no considered, evidence the jury consider,
or even knew could the lesser
penalties years of a term of straight life.
I would therefore reverse the decision of
the trial court and remand for a new trial. CLIFFORD, Appellant,
Charles Kentucky,
COMMONWEALTH of
Appellee.
97-SC-368-MR.
Supreme Kentucky. Court of
Nov. 1999.
Rehearing Denied Jan. 2000. *2 Popplewell, Somerset, Brenda crack Appel- gave cocaine which he Birken- lant. hauer. gave Birkenhauer Vanover and told him to tell $75.00 Chandler, III, General, A.B. Attorney he would return later for the rest. Van- Frankfort, Capitol, State Courtney A. bedroom, over reentered then came Jones, General, Attorney Assistant Frank- *3 back out a accompa- few seconds later and fort, Appellee. for
nied Birkenhauer outside to his vehicle. Opinion of the court Justice Birkenhauer returned an a hour and half COOPER. later, Appellant but neither nor Vanover present was at the apartment.
Following jury a trial in Campbell Court, Appellant Circuit was convicted of Vanover testified the crack cocaine one count of trafficking a controlled him, actually belonged that he had made first-degree. substance He then Birkenhauer, the sale to Appel- guilty plea entered a to being persistent a lant was not involved in the transaction. felony offender in first-degree Appellant testify. did not waived sentencing. He was sen- tenced to yеars prison ten for the traf- Unknown to Appellant either or Van- conviction, ficking which was enhanced to over, Birkenhauer was “wired” with an twenty years for the PFO conviction. He transmitter, audio police other officers appeals to this Court as a right. matter of were in nearby apartment a with surveil- 110(2)(b). Ky. § Const. equipment lance receiver. One of officers, Smith, those Darin listening I. FACTS. to the transaction over the A receiver. Detective William Birkenhauer of the tape recording of the pro- transaction was Kentucky Northern Drug Strike Force duced, but the judge trial determined that had an agreement Vanover, Gary with recording was inaudible and it was informant, police whereby Vanover would neither admitted into played evidence nor assist Birkenhauer in setting up drug jury. However, permit- Smith was “sting” operations. 20, 1996, May On ted to to what he heard over the Birkenhauer and Vanover up meeting set rеceiver as the transaction occurring. Appellant with approximately p.m. 8:00 Smith testified he saw Birkenhauer apartment. Vanover’s Birkenhauer in- apartment. enter the He then heard four structed Vanover to Appellant tell that he voices, different the first of which he rec- purchase wanted to a quarter of an ounce ognized being that of Birkenhauer. He of crack cocaine. male, then heard the voice of аnother Birkenhauer testified that when ar- female, and, later, voice of a then a fourth rived apartment, at the Vanover answered voice which “sounded as if it was of male the door and a female friend of Vanover black.” Smith testified that he had been a present. was also Appellant emerged then police years officer for thirteen and had from the bedroom. told Birken- spoken to black males on numerous ocсa- only hauer he had worth of cocaine $75.00 sions; and that based on that experience, him, with because he did not like to carry he believed the last voice which he heard more than person, that on his but stated was that of a black male. is a that he could complete the order later that male; black Vanover is a white male. afternoon. Birkenhauer told Smith then testified as follows: would take the “75” and return later for (Smith’s Q: rest. then еxperience), went back into Based recall, the bedroom you just and instructed Vanover to as best want follow him. When you Vanover came out of me you to tell what can recall bedroom, carrying he was a baggie you the conversation heard between Birkenhauer, telling interpretation tape of an inaudible record just
Detective
said,
However,
ing.
purport
the male
did not
jury what
black
you
recording.
to be a
interpret
tape
or the
believed
He testified
he, himself,
male black.
heard as the transac
to what
place.
v. Com
taking
tion
Gordon
A:
the fourth
That would
been
monwealth,
Ky., 916 S.W.2d
tape.
and final voice on
Detec-
Cyl
see
States v.
also United
tive Birkenhauer
that he
stated
(6th Cir.1977)
kouski,
(par
minutes or
didn’t
me,
my house,
express
you
permitted
I
it at
know should not have been
to
left
saying,
opinion
I
to
that the fourth voice he heard
what I am
didn’t want
A
me.
Birken-
like
of a black male.
have
Detective
sounded
that
said,
now,
I’ll
nonexpert
may express
opinion
hauer
take the “75”
an
witness
up
and
rationally
perception
we will hook
later.
on the
which is
based
and
to a determina
helpful
of the witness
cross-examination,
following col-
On
the
A
tion of
fact
in issue. KRE 701.
loquy occurred between Smith and defense
corollary to
rule is the
known
concept
counsel:
rule,”
permits
which
as the “collective facts
Well,
man
Q.
how does a black
Okay.
to a
or
laya
witness to resort
cоnclusion
sound?
opinion
phe
an
an
to describe
observed
Uh,
a, a
A.
some male blacks have
feasi
nomenon where there exists no other
of,
their voice.
different sound
of
ble alternative
which to communicate
if I have a
sound of
Just as
different
to the trier
fact. See
that observation
my
as Detective Birkenhauer
voice
Lawson,
Kentucky
Law
R.
The
Evidence
you.
I
does.
sound different
(3d
6.05,
§
ed. Mi
Handbook
at 275-76
Q. Okay,
you
demonstrate that
1993). Thus,
hаve
chie
witnesses
been
jury?
the
speed
mov
testify
to
of a
permitted
think that
a fair
A.
don’t
would be
vehicle,
Bros.
v.
Constr. Co.
Clement
the,
description
you
and
accurate
Moore,
(1958); the
Ky.,
S.W.2d 526
314
know,
way
of the
the man sounds.
person
that
age
of a
and whether
alike?
Q. So not all male blacks sound
intoxicated,
Al
Kentucky
Howard
Bd.,
429,
correct,
Ky.
294
Beverage
coholic
Control
yes.
A. That’s
(1943);
physi
degree
172
S.W.2d 46
fact,
Q.
In
some of them sound
Okay.
another,
Zogg v.
suffering
cаl
endured
whites,
they?
like
don’t
511
O'Bryan,
Ky.
314
S.W.2d
A. Yes.
state
and mental
emotional
Q. Do all whites sound alike?
another,
Ky.,
Sego,
Commonwealth
A. No sir.
(1994),
Emerine v.
444
872 S.W.2d
sound
Q.
people
Do some white
Okay.
(1953).
Ford,
King
In
Ky., 254
938
S.W.2d
talking?
they’re
when
blacks
Co., 212
Fire & Marine Ins.
Valley
v. Ohio
Possibly, yes.
A.
(1926),
127
a witness was
Ky.
280 S.W.
upon arriving
to
permitted
II. LAY OPINION TESTIMONY.
fire,
gasoline.”
“smellfed]
the scene of a
the wit
response
argument
argues
In
to
first
that Smith’s
merely
permitted
been
to an
ness should have
impermissible
amounted
accent,
odor,
or
testify that
and an Italian
not to
Yiddish accent
describe
held:
ac-
gasoline,
English
odor was
the Court
Russian and an
between a
cent,
Spanish
or
and French
between
Technically, perhaps,
have
should
addition,
accent.
In
within broad cate-
done,
man
average
but the
would
accents,
specific
more
just
gories, certain
great
telling
how
difficulty
region,
smells,
[a]
ac-
characteristic
gasoline
though
coal oil or
may
exаmple,
For
odors,
perhaps
with their
be ascertained.
quainted
reliably
be able to
iden-
description
best
could
witness
witness
odors,
accent,
say
tify
“Brooklyn”
distin-
give was
he knew their
oil,
accent,
could
coal
could smell
guished
smell
or he
from
“Boston”
“Cockney”
gasoline.
accent from the
“Southern”
taught
experience
accent. Human
has
Id.,
rule would
witness to
(1912), it
held
Ark.
voice. United States controlled substance as lesser included of (4th Cir.1983); Robinsоn, 811, F.2d 707 814 trafficking. Appel of first-degree fenses Commonwealth, Ky., 788 Campbell preserve alleged not this error lant did (1990); Howard v. Common 260 S.W.2d objection tender contemporaneous (1989). wealth, 787 264 Ky.App., S.W.2d 9.54(2). RCr ing the desired instructions. here, the unfamiliar When, witness is as palpable as error. requests He review voice, speaker’s declarant’s have held it to Although 10.26. we be RCr proven by be circumstantial identity jury error on an palpable to instruct 641 Espinoza, Statеs v.. evidence. United indictment, in the not contained offense cf. (4th denied, Cir.1981), 153, 170 cert. F.2d Caretenders, Commonwealth, Ky., Inc. v. 841, 102 153, 125 454 S.Ct. 70 L.Ed.2d U.S. 83, (1991), arewe unaware 821 S.W.2d 86 Martinez, (1981); 555 United States v. authority palpable it to be any holding (5th Cir.1977), 1248, cert. 1249-50 F.2d fail to on a lesser included instruct error 404, denied, 924, 54 434 U.S. 98 S.Ct. in charged of that the indictment. offense (1977); v. Car L.Ed.2d 282 United States on a (9th Regardless, an instruction Cir.1972); 704, rion, 463 F.2d 706-07 if, required only 287, included is States, lesser offense 291 F.2d Grogan v. United 394 evidence, (5th denied, 830, considering totality Cir.1967), cert. 393 U.S. (1968); doubt as to jury could a reasonable 21 Cwach 89 L.Ed.2d 100 S.Ct. (8th States, greater of guilt 212 the defendant’s F.2d 525 United
877 fense, yet beyond mony. majority opinion believe a reasonable The cites in cases guilty that he is doubt of the lesser of which witnesses have been allowed to Commonwealth, white, Ky., identify sounding fense. Webb v. 904 voices as (1995); black, persons. S.W.2d 226 Bills v. Common well as wealth, (1993). Ky., 851 469 S.W.2d in adoption The KRE 701 this Com- The theory Commonwealth’s of the case signaled monwealth this Court’s intention Appellant brought was that the cocaine to clearly to follow favoring the modern trend apartment Vanover’s and sold it to Detec lay opinion the admission of such evidence. tive Appellant’s theory Birkenhauer. philosophy KRE 701 reflects the of this that Vanover had in apart the cocaine Court, country, and most courts Birkenhauer, ment and sold and that inclusionary view KRE 701 as more Appellant’s presence on that occasion was exclusionary when opin- witness’s a mere coincidence. Since there was no ion rationally perception is based on the jury evidence from which a could conclude the witness helpful and is guilty of either facili trial court for a clear understanding of the possession cocaine, tation or but not witness’s or the determination cocaine, trafficking he was not entitled of a factual issue. to an instruction on either those theo Moreover, guidelines set out in KRE ries. Commonwealth v. Day, Ky., 988 401 KRE 403 regarding relevance and S.W.2d Houston v. Common probative whether the value of relevant wealth, (1998). Ky., 975 S.W.2d outweighed by evidence is prejudicial its Accordingly, judgments of conviction effect are decisions for the trial court. imposed by sentences the Campbell Those decisions will not be disturbed Circuit Court are affirmed. the absence of an abuse of discretion. Commonweаlth, Partin v. Ky., 918 S.W.2d GRAVES, JOHNSTONE, KELLER, (1996). . WINTERSHEIMER, JJ., concur. Sadly, spun the dissent has this eviden-
JOHNSTONE, J., concurs separate tiary issue into a needless racial diatribe. opinion in KELLER, which GRAVES and my It that as we approach the JJ., join. millennium, majority opinion next per- petuates the time-honored deference to the STUMBO, J., by separate dissents *7 judges discretion of trial in this Common- LAMBERT, opinion C.J., in which joins. wealth and allows additional valuable evi- JOHNSTONE, Justice, concurring. by dence to be considered the diverse group jurors of that in diligently serve so I majority concur the opinion in all Kentucky the Court of Justice. respects, but write separately dispute to the misguided dissent’s assertion that “the KELLER, JJ., join GRAVES and this majority takes a step tremendous back- concurring opinion. with holding today permits wards its and prejudice and inference to convict a Justice, man STUMBO, dissenting . logic objectivity where would not.” dismay, much I With must dissent. The simply That is untrue. majority opinion only fundamentally is not by levеls, The contentious issue confronted the flawed on several but is also tre- Court this case mendously is whether a disheartening. opinion The may express as to the race of a the condones admission of Officer Smith’s person from an Despite overheard voice. testimony that voice the fourth any inferences to contrary, other speaker tape he heard on the “sounded as previously courts have if testimony addressed this issue it was of a male black.” This and allowed such witness opinion only impermissibly testi- not bolstered testi- Birkenhauer, testify to that the fourth whose Smith mony Detective Officer videotape voice black.” inculpating version of events had on “sounded question improper This would by type testimony been called into serious be context, in- all so of the Commonwealth’s own but it is the more any formant, incredibly prejudi- was also the lone black but because the defendant was man Appellant, sitting Although cial to the sole black sitting man at the defense table. Additionally, at the defense table. the tes- both Appellant’s voice unknown to timony was, own by Officer Smith’s admis- overwhelming in- jury, Smith and the sion, probative of entirely irrelevant and was that was the fourth ference Thus, absolutely nothing. it should have by De- speaker, guilty urged and thus as being under KRE 403 as been excluded tective Birkenhauer. prejudicial probative.
more majority оpin- holds Officer Smith’s The object premise I must the basic first to tape ion that the voice on the sounded majority’s rationale in which underlies perfectly acceptable that a black man is person’s this case—that a race can be as- rationally as based on lay opinion which is by certained the sound and cadence simply testi- perception, Smith’s because “Smith voice, pronunciation of of his his certain poliсe fied had that he officer in- accent. An words—his accent be spoken had to black years thirteen person’s many things dicative of As dis- males on numerous occasions.” —how countries, regions parents speak, above, any rationality cussed fail to see lived, neighborhoods in he has even which person’s to that one can hear a the notion attended, languages the schools he has moment, us, as- skin color. Let for the clаss, speaks, he social and even whom was inartful- sume that what Officer Smith definitely can- he admires. What most ly that attempting say, is the voice the color his skin. not indicate is tape spoken in an accent heard on African or dialect which he associated with us this. The Common sense should tell Americans, for which could not reasons quality particular of a voice is sensed explain linguist. not a because he was just appearancе of a hearing, person as the so, were being This Smith’s observations simply It not by sight. possi- is sensed is any entirely still absent show- perceive appearance using the sense inadmissible ble himself, Appellant, might speaks that hearing. presume One of accent. As Smith had never or accent would be indica- kind particular voice might Appellant speak look. How- heard speaker tive of how the trial, ever, was no be chose not to therе presumption would based ideas, stereotypes, way on to connect solely preconceived In- type accent logic reality. not described Smith. assumptions, stead, simply left with Race, is, color, per- must skin be impermissible because inference sight. say ceived To African associated the voice with *8 capable ascertaining another’s race sole- Americans, Appellant was an and because tantаmount ly hearing his voice is American, be the Appellant must African color” or “smell saying the one can “hear a person Smith heard. a One can no a sound” or “taste noise.” illogicality Smith himself conceded person’s that a skin is more determine testimony. cinnamon, his own simply hear- and irrelevance of pale, ebony cross-examination, acknowl- Smith voice, Upon one that an perceive alike, nor accent, edgеd a all black men sound have a British individual will .not acknowledged accent, men. He also do all white York accent or Portuguese New “sound African American men by gazing accent some Appalachian simply whites,” people “some white of his skin. his countenance the color essence, con- Thus, like blacks.” In entirely permit it sound improper millennium, ceded that Appellant’s approach voice and accent As wе the next might majority sound like the step accent Smith associ- takes tremendous back- Americans, holding today ated wards with its permits with African but that it prejudice more, and inference to convict a man might say not. could He no because logic objectivity where would not. Appellant’s he had never heard Ev- voice. idence is relevant when it tends to make LAMBERT, C.J., joins dissenting disputed
the existence of a issue more opinion. probable probable or less than it would be Here,
without the evidence. KRE 401. testimony
Smith’s that the voice he heard
sounded like an “African American accent” way
in no tended to increase the probabili-
ty was the speaker, because showing
there was no Appellant, him-
self, spoke in the manner described. As irrelevant, Smith’s clearly Nancy WABNER, Appellant, yet undoubtedly extremely prejudicial to Appellant, it should have been excluded
under KRE 408. Bain, Ron BLACK and Frank Co- George Executors of the Estate of Finally I must take pri- issue with the Tapp, Deceased, Appellees. mary majority case the cites an effort to support find for its unfortunate holding. No. 98-SC-1051-DG. Somehow, majority has improperly Supreme Kentucky. Court of broadened the issue before us to that of whether a “express an Dec. 1999. opinion that an overheard voice was that of particular nationality or race.” In so doing, majority quotes at length from Sanchez, People case of 129 Misc.2d
91, 492 N.Y.S.2d (N.Y.Sup.Ct.1985), easily
case which is distinguishable from There,
the instant controversy. ques-
tion was suspect whether the speaking
Spanish in a Dominican or Puerto Rican
accent. in way That ease no dealt with the
issue of accent as it relates to race or skin
color, nationality. but rather as it relates to
Given one’s accent is largely affected country region grows he or she in,
up entirely permit reasonable to
identification a nationality based on a accent, long kind of so as the
listener is familiar with the accent of that
particular nationality. Such is not the case *9 skin, the color person’s of a which has
absolutely impact way no on the
speaks. I find the majority fact that the grasp
seems unable to this obvious distinc- extremely
tion to be disconcerting.