*1 Larry OSBORNE, Appellant, Kentucky,
COMMONWEALTH Appellee. No. 1999-SC-0124-MR. Supreme Kentucky. Court of
April *2 Robinson, Frankfort, Timothy
M. Gail Advocate, Arnold, De- G. Assistant Public Frankfort, partment Advocacy, of Public appellant. III, General, Chandler, A.B. Attorney Frankfort, Capitol, State Elizabeth A. Heilman, Franklin, Anitria M. Assistant Attorneys General, Attorney Gen- Office of eral, Division, Frank- Appellate Criminal fort, for appellee.
COOPER, Justice.
I. FACTS. 12:30 December
Sometime after a.m. on 14, 1997, ages Lillian Davenport, Sam and respectively, 82 and in a fire that died highway their residence on consumed County, Whitley Kentucky. Forensic presence an accel- testing revealed room where were erant the bodies Daven- portion found and on a of Mrs. been port’s clothing, indicating the fire had Autopsies intentionally set. revealed injury cranial each victim had sustained a trauma, but consistent with blunt force death in instance cause of each inhalation. smoke evening, Earlier that same burning house. The house wasn’t when Larry Osborne had borrowed a “DS80” through. we come We come back (described by some witnesses through. gotWe at her house. Then bike”) Oyer, “dirt from Dustin a visi- law, she dialed something or residence, tor at the Osborne and had *3 like that and said that her son heard it from driven his residence on Burke Hol- house, glass breaking around the the low to highway Road then south on Davenports’ somebody house. And then past the residence Sam and Lillian her called back. It could have been the Davenport to the residence of Scott Dun- law that called her back. I don’t know. Duncan, can highway Appellant, on But somebody called her back and her Reid, fifteen, age Sarah Tissott and Joe Larry got the car and went down proceeded past then back north on 1804 Davenports’ to the house. She said it Davenport residence to the residence was the law that called them and told Ramsey. of William Nix and Irene Appel- them They to come to the house. need- motorcycle lant riding drove the with Reid questions something. ed from them or on the passenger. back as a Duncan and Tissott in a truck. pickup Appel- followed Whitley County dispatcher “911” lant and Reid left Nix/Ramsey resi- testified that a.m. person identify- at 1:18 dence sometime after midnight drove ing herself as “Pat Osborne” called to re- past south on 1804 the Davenport resi- port that her son glass breaking had heard Jellico, dence to where Reid lived with his past when he drove the Davenport resi- grandmother, McLemore. Appel- Mildred dence. The gave caller both her name and lant and at Reid arrived the McLemore telephone dispatcher. her number to the approximately residence at 12:55 a.m. To trial, At the Commonwealth introduced an Road, return to his home on Burke Hollow recording audiotape of the entire “911” Appellant required again to drive telephone dispatcher conversation. The north on 1804 past Davenport resi- Kentucky then contacted Police State dence. Mildred McLemore testified that Trooper Durham Sam who arrived at the Appellant telephoned his mother from her at Davenport residence 1:36 a.m. to find it say: residence and that she overheard him engulfed flames. Durham unsuccessful- “Mom, glass breaking me and Joe heard home, ly attempted to the burning enter down here at a house on the road. Come dispatcher then directed the to call the fire and follow me home. I’m scared.” McLe- department. request, Also at Durham’s Appellant more then watched as drove the dispatcher called the Osborne resi- motorcycle nearby ato store referred to Appellant dence and his mother and asked alternatively “Ray’s market” and the arrival, report Upon Ap- scene. “Red Ace.” told Durham he and Reid had pellant Oyer asleep Dustin testified that he was on a driven residence at the Osborne residence when Patricia motorcycle had heard “the crash of him Osborne awakened and asked him to glass breaking.” accompany Appellant. her to meet testify at trial. Appellant did not How-
Pat up, woke me said that we’re— ever, in addition to the oral statement well, you could to the Red ride Ace with Durham, Trooper gave made to he Larry’s your me? on me on waiting Kentucky following written statement motorcycle. up Larry rode there. We Gary Police Lane on the glass shattering said I some State Detective heard house, Davenports’ around the after the murders: morning riding Scotty and Joe a motor- residence and drove Me Reid were Duncan’s Davenport’s Nix/Ramsey I cycle past Mr. when heard breaking. then to Joe glass motorcycle We went had borrowed my I (presumably Oyer). residence where called Reid’s from Dustin “Whittier” - Osborne, mom, I pick up. Pat me told p.m., Appellant 10:30 11:00 At about home Mom money drove while some for a going get Reid he was way nothing followed. We seen on the from and was absent horse Nix/Ram- through. happened This on 12-14- back thirty to min- sey thirty-five residence for approx 0130 hrs. speculated that went utes. Reid weapon to obtain a to his own home either gave fol- Joe Reid Detective Lane the assistance in rob- or to enlist mother’s lowing written statement: *4 Reid bing Appellant the and Davenports. 12-14-97 0100 hrs me and approx On residence Nix/Ramsey approxi- left the Larry riding bike Osborne were a trail - 12:15 a.m. mately Appellant 12:20 with Davenport past residence. I heard driving motorcycle riding the and on Reid any- I did glass breaking. some not see Upon Davenport arrival at the back. the body around the residence. residence, Appellant the stopped, got off 31, 1997, On December Reid submitted and Reid he to motorcycle, going told was polygraph Upon being to a examination. money Davenports. from the borrow some examination, that he the told had failed went Appellant handgun. Appellant had a following Reid “confessed” the of sequence Davenport rear of house and to the the leaving events to Detective Lane: After attempted motorcycle the Reid to drive residence, Nix/Ramsey Appellant the told road,” off. “down the but the chain came was going money Reid he to borrow some two glass breaking Reid then heard and Davenports purchase from the to a horse. the gunshots Ap- from the rear of house. Appellant motorcycle drove the to the the pellant returned from the rear of Davenport riding residence with on Reid placed lawn a house and chair under Appellant motorcycle the back. off got window, glass then broke out window house, proceeded and rear with his forearm and entered the resi- then returned with a wooden chair lawn glass breaking, dence. Reid heard more it placed and under a window. When Reid screaming gunshot, another and a woman that Appellant realized was break going to Appellant inside the residence. came out house, urged Appellant into the he to not money pockets the house with in his and attempted do so. Reid then to start sleeve, gun up got on the back motorcycle, but fell Appel- the chain off. motorcycle, Reid home. and drove to his lant broke the window and entered told Reid that his mother would Appellant residence. the chain on the put Reid back him help Davenports’ burn the residence road, motorcycle and drove down the but if and threatened to beat Reid “ratted” he to him Appellant waiting returned find him. on with a outside Reid “pocketful” money. claimed he response question grand In from a no gunshots heard screams or and incident, juror about the chain Reid testi- gun. did have a Appellant Appellant not he previously fied that had worked motorcycle. drove Reid home on the motorcycle, Oyer’s prop- had failed to but chain; January 21, he at- erly tighten Reid testified be- when On motorcycle, chain Whitley grand jury tempted push County fore substan- tially Appellant picked up put him He “threw” the chain back as follows: fell off. or murders, motorcycle, attempt first-degree
on the but made no arson and first-de- it, tighten pushed gree robbery, then for- but not first-degree burgla- stay ward to see if the chain ry. Following hearing would on. a transfer held pur- 640.010, The following colloquy Appellant then occurred: suant to KRS was Whitley transferred to the Circuit Court you planning Juror: Were to leave him? youthful as a offender. claims going Reid: I was to drive it. was error to indict and convict of first- Juror: While he was in the house? degree burglary, or to use offense as Reid: Yeah. aggravating authorizing circumstance Whitley County grand jury indicted penalty, the death since he had not been Appellant on two counts murder and juvenile court; charged with that offense in robbery one count each in the first thus, judge authority no the district had degree, burglary degree, in the first (The transfer offense to circuit court. degree. arson in the first Patricia Os transfer order recites that borne was indicted on two counts of com murders, charged first-degree two ar- plicity to murder and one count each of first-degree burglary, son and arson in the degree complicity first However, first-degree robbery.) under burglary degree. in the first The Com *5 statutory the youthful scheme for offend- theory Appellant monwealth’s was that ers, it is the offender that is transferred to forcibly entered the court, circuit not the offense. victims; and assaulted and the robbed and may child be transferred to Cir- [T]he that he and his mother later returned to Court, cuit and if the child is trans- the residence up and set the fire to cover ferred the District Court shall issue an joint the earlier crimes. The indictments transferring youth- order the child as a Appellant of and his mother were severed ful offender and shall state on the record purposes for of trial. Appellant was sub the reasons for the transfer. The child sequently charges convicted of all and sen in proceeded against shall then be the murder, tenced to death for each to life in adult, except Circuit Court as an arson, prison first-degree for and to twen provided in this chapter. otherwise ty years first-degree burglary each for and added). 640.010(2)(c)(emphasis KRS first-degree robbery. appeals He to this 640.010(3) Appellant’s Ky. Court reliance on KRS right. as matter of Const. 110(2)(b); misplaced. requires § is That statute KRS 532.075. We reverse juvenile the if and remand because of child be returned to court improper the ad grand jury the does find hearsay during Appel probable mission of evidence youthful cause to indict the child as a only lant’s trial. We will address those 635.020(2), (5), (3), (6), offender under affecting likely additional issues retrial or KRS (7) (8), cause probable recur and but does find upon retrial. indict the child for another criminal of- II. JUVENILE TRANSFER jury probable If grand fense. the finds
PROCEEDINGS. youthful as a cause to indict the child 640.010(3) offender, years pre- was seventeen old does not KRS occurred, indicting when these offenses child other thus the clude from the for charges against brought him were first arising offenses out of the same course juvenile Whitley gave the division of the District conduct that the rise to offense juvenile cir- Court. KRS 635.010. The com caused the child to be transferred to fact, plaint/petition charged Appellant provisions with two cuit court. In of KRS reasons 635.020(8) on the record the 610.015(2) state anticipate and shall and KRS added.) (Emphasis arising out of the same that other offenses transfer. for and ad- charged can be course of conduct that “all Here, order recites the transfer after transfer. judicated in circuit court those enumerat- (presumably factors” Harden v. Common Relying on 640.010(2)(b))were considered ined KRS wealth, Ky.App., 885 S.W.2d factors were found those and that three of transfer complains that the Appellant also (1) the seriousness transfer: to favor with findings written order did not contain (2) offenses; were com- the offenses eight each of the factors enu respect property; and persons both mitted 640.010(2)(b). When merated KRS unlikely made it age Appellant’s and 640.010(2)(c) decided, Harden was KRS ac- could be rehabilitation that reasonable provided: juvenile use of services complished by
If, completion pre- following Thus, transfer order satis- facilities. hearing, court liminary of the statute requirements fied the considering the opinion, juris- vest the circuit court sufficed to factors after (b) this sec- enumerated in subsection for which adjudicate charges diction to tion, the child should be subsequently indicted transferred court, to circuit the court shall issue convicted. youth- as a transferring
order the child and shall state on the rec- ful offender JURY III. HEARSAY: GRAND .... ord the reasons transfer TESTIMONY. added.) (Emphasis drown died accidental Joe Reid transfer order in Harden stated the *6 8, trial be July Appellant’s 1998. ing on transfer, but did not recite reasons for the trial, De 1998. At on November gan all judge that the district had considered to the allowed to read tective Lane was in factors enumerated KRS January jury transcript of Reid’s 640.010(2)(b). held Appeals The Court of that testimony. Since jury grand required reversal and this omission the truth of testimony prove was offered to juvenile for remanded the case to the court i.e., content, robbed and its hearing. a new transfer Id. at 325. Sub- burglarized Davenports killed the Harden, in sequent to the transfer issue residence, testimony was their burned 640.010(2)(c) it was amended1 so that KRS it and inadmissible unless clearly hearsay now reads: hearsay exception fell within If, pre- following completion 801(c), KRE It is imma KRE 802. rule. hearing, the District Court liminary im permitted to terial considering the enu- finds, after factors testimony by grand jury peach Reid’s (b) this subsec- paragraph merated in of prior Lane Reid’s cross-examining about tion, that two or more of factors Impeachment statements. inconsistent (b) this sub- paragraph in specified for no substitute evidence is incompetent transfer, are determined to section favor its exclusion. may transferred to Circuit the child be jury grand Reid’s judge trial held Court, The if the child is transferred hearsay under the testimony admissible trans- shall issue an order District Court offender, interest. exception for statements youthful ferring the child as July § Ky.Acts, ch. eff. 1. 1996 804(b)(3). provides being That Rule an ex- in sought [who] other is connec-
ception for: tion with the commission of [criminal] ... he offense renders assistance to
A statement which was at the time its added.) person. (Emphasis such far making contrary so to the declarant’s interest, pecuniary or proprietary or so 520.110(1) KRS defines “renders assis- subject far tended to the declarant include, tance” to inter “Providing] alia: civil ... liability or criminal that a rea- person money, transportation, such with person posi- sonable in the declarant’s weapon, disguise or other means of avoid- tion would not have made the statement ing discovery apprehension.” or (Empha- believing unless to be trae. A state- added.) assuming put sis Even Reid tending expose ment the declarant to motorcycle’s chain cogs loose back on the liability criminal is not admissible unless Appellant’s ap- with the intent to hinder corroborating clearly circumstances indi- prehension or prosecution, opposed cate the trustworthiness of the state- (as testimony suggested) facilitating his his ment. scene, departure own from the fact in argument Commonwealth’s re- “provide” Appel- remains that Reid did not sponse Appellant’s suppress motion to “transportation” Appel- lant with the put was that Reid’s statement that he discovery supposedly lant used to avoid or chain back on exposed apprehension. motorcycle belonged liability to criminal for criminal facilitation. Reid, Oyer. not to but to Dustin Presum- 506.080(1)provides: KRS ably, if Reid had not slipped the loose A person guilty is of criminal facilitation chain back on the motorcycle, Appellant when, acting knowledge that anoth- could simple have done so himself. This person committing er or intends expose act was insufficient to Reid to crim- crime, commit a in engages he conduct liability hindering prosecution inal for or knowingly provides person which such apprehension providing transportation opportunity toith means or the com- being sought to one connection with a for mission the crime and which in prosecutor criminal offense. The obvious- fact person aids such to commit the crime. ly agreed; despite for the fact that Reid added.) (Emphasis exchange received no “deal” *7 jury testimony, grand no effort was made Obviously, Reid’s act of putting the during testimony the interim between that motorcycle pro- chain back on the did not him charge any and Reid’s death to vide Appellant opportu- with the means or upon criminal testi- premised offense his nity to and kill the Davenports rob or to mony. There a complete is also absence of burglarize and burn their residence. any corroboration, KRE required by Thus, appeal, the Commonwealth ar- 804(b)(3), that chain came off either gues exposed that Reid’s statement put it or Reid back on. liability hindering prosecution criminal for apprehension. (hindering or KRS 520.120 description But even if Reid’s of (hin- in the degree) first and KRS 520.130 chain incident had been admissible as a dering degree) provide the second both interest, against penal statement his own in pertinent part: such would not have authorized the whole- person guilty hindering prosecu- jury
A is of admission of his entire grand sale when, ... apprehension testimony, tion or with the the balance of which served apprehension, pros- only Appellant. intent to hinder the to incriminate The United ecution, or an- a punishment Supreme conviction of States Court has held that
241 identify one can but penal interest is “a the Commonwealth against “statement” remark,” of in the narrative single or not en- isolated remark broader declaration argu- “report grand jury testimony narrative” which it is as even tire or within Reid’s against penal contained. Reid’s interest. ably own testimony self- of remainder reading faithful of Rule most [T]he i.e., that an innocent 804(b)(3) exculpatory, he was it allow admis- is that does not statements, by Appel- non-self-inculpatory bystander to crimes committed sion Commonwealth, Ky., if made a 282 they even are within broader v. lant. Moore (1955) (“mere self-inculpato- generally 613, that is at presence narrative 615 S.W.2d just ry. may court as- The district of a crime is not sufficient the scene 804(b)(3) purposes sume for Rule guilt”). attach self-inculpatory is because statement reject theory the novel ad- We also confession, part fuller and this is is of a any oral during argument vanced especially true when im- the statement “potential” made under oath is statement plicates someone else. because, against penal statement interest States, 594, v. United 512 U.S. Williamson untrue, subject statement would if 599, 2434, 2435, 600-01, 2431, 114 S.Ct. 129 If prosecution perjury. for declarant to (1994); L.Ed.2d 476 see also Vincent v. so, every prior statement made that were 681, (6th Seabold, 687, 226 F.3d 689 Cir. by under unavailable witness oath 2000). rule Although hearsay automatically against admissible would be many recognized exceptions predate of its any person inculpated by that statement. Constitution,2 the appli- the United States course, is, hearsay separate There exceptions clearly impli- cation those testimony; exception for former cates the of the Sixth Confrontation Clause exception prior the admission of permits Amendment, Roberts, Ohio v. 448 U.S. only testimony party against if the sworn 100 S.Ct. 597 L.Ed.2d testimony now offered had an whom the applicable by made the Four- states given develop when it was opportunity Texas, teenth Amendment. Pointer cross, direct, or testimony redirect 1065, 1068, U.S. 85 S.Ct. 804(b)(1). Obviously, examination. (1965). Thus, L.Ed.2d 923 we are bound opportunity had an Appellant never by the United States Court’s in- Supreme jury Reid’s grand cross-examine testimo- terpretation of what an admis- constitutes ny. under sible out-of-court “statement” improper grand admission hearsay exception statements requires jury testimony of Joe Reid rever- v. Common- penal Moseley interest. Cf. none of Reid’s sal for a new trial which (1997). wealth, Ky., 960 S.W.2d shall be inculpating Appellant statements Williamson, Pursuant each statement *8 admitted. be within narrative must ex- the broader individually amined to determine whether “911” IV. HEARSAY: AUDIOTAPE. is, not, fact, If self-inculpatory.
it
it is
Commonwealth,
the audio
Appellant asserts
Gabow v.
inadmissible.
(2000). Here,
63,
telephone
Osborne’s
call to
Ky.,
tape
34
78
12
Patricia
S.W.3d
n.
denied,
927,
(1978), cert.
against penal
568
930-31
exception
S.W.2d
statements
1028,
1119,
interest, however,
99
the “911” dispatcher should have been ex
background
ization of the
coughing was
hearsay,
cluded as
because Mrs. Osborne
not such an unreasonable inference from
testify
did not
at trial and her statements
the evidence as to constitute reversible
dispatcher
reasonably
could not
be
Commonwealth,
error. Tamme v.
Ky.,
characterized as “excited
un
13,
utterances”
(1998),
denied,
973 S.W.2d
39
cert.
803(2).3 However,
der KRE
an out-of-
1153,
1056,
U.S.
119 S.Ct.
matter asserted. KRE
Obviously,
V. CRIME ROUTE VIDEO.
the Commonwealth did not introduce the
Detective Lane introduced a video
audiotape
prove
the truth of Patricia
tape purporting to show the routes and
Appellant
Osborne’s assertion that
heard
distances supposedly
by
traveled Appellant
glass breaking when he
past
drove
night
his mother on the
in question
Davenport
Appel
residence. That was
approximate
and the
times
took to travel
case,
theory
lant’s
not the Common
those distances. The Commonwealth’s
wealth’s. It was the Commonwealth’s the
theory
Appellant
was that
and Reid first
ory that the statements made during the
Nix/Ramsey
traveled from the
residence
and, thus,
“911” call were false
proved a
highway
south on
Davenport
scheme
Appellant and his mother to residence where Appellant
robbed the
police
divert
away
attention
from them Davenports, then from
Davenport
resi
selves to
unknown perpetrator. As dence south on 1804
merger
to its
such,
the statements made during the
highway
then south on highway 25 to
“911” call
relevancy
had a
existing without
Jellico, then up Kentucky Hill to Mildred
regard to the truth of the assertions. Per
residence;
McLemore’s
that Appellant
Ky.,
due v.
916 S.W.2d
Commonwealth
Kentucky
then
Ray’s
drove down
Hill to
denied,
cert.
619 U.S.
highway
market on
25 where he met his
(1996);
117 S.Ct.
243 in Gorman v. However, photograph described videotape posed the so- he did Hunt, (2000), crime 19 662 the Ky., in S.W.3d sequence route” the in called “crime simply plau- demonstrated the scene video videotape it starts at occurred. which theory of sibility of the Commonwealth’s residence, proceeds then Davenport the the the transposition to the case. While Road, Burke north on 1804 to Hollow then the Nix/Ramsey residence from Osborne Lane testified to the Osborne residence. confusing, Lane may have been residence Davenport from the that the travel time they that clarified on cross-examination to the Osborne residence was residence that near each other and were not located fifty-three minute seconds. The one fur- Nix/Ramsey was located the residence videotape on the is the next scene it highway Though on ther north residence, is no de- Nix/Ramsey but there to have may preferable been deleted have to that any route or from loca- piction Nix/Ramsey the portrayal the residence to videotape tion. The then switches the videotape, request was not from the Hill, Kentucky residence on McLemore that the trial made at trial. We conclude Ray’s market on proceeds from where to discretion in ad- judge did not abuse his 25, to 1804 and highway highway then mitting video evi- the crime scene into Davenport to the residence. Detec- back dence. at 669. Id. Lane travel tive testified the time from the McLemore to the Dav- residence PARTICLES. GLASS VI. two enport residence was minutes. dif fragments found seven Glass Appellant asserts three errors re- Davenport ferent on the proper locations spect to the admission of the crime route Kentucky ty were to the State Police sent (1) during was day- video: the video made Laboratory forensic examina Crime for the events light hours whereas actual oc- tion, Appellant was clothing was the (2) at night; curred there was no evidence night were wearing on the the crimes driving Appellant as to how fast the was Appellant’s Scrapings committed. night question; on the in glass small clothing produced numerous Nix/Ramsey transposition glass particles, frag none matched the residence from Osborne residence on Davenport property. on the ments found videotape created an inference that the evidence that Appellant complains that they when, are located next each other clothing glass particles were found fact, they apart. several are miles irrelevant, should been excluded as have
Presumably,
purpose
of the crime
particles
not match the
since those
did
video
scene
was
demonstrate
rela-
from
crime
glass fragments gathered
tively short distances and travel times be-
object
scene.
did not
crucial to this case
order
tween locations
at trial.
of this evidence
Since
admission
prove
possible
that it was
exculpatory
than
the evidence
more
Ray’s
his mother to drive
market
from
regard
as a
inculpatory, we
this omission
fire,
residence,
set the
legitimate trial
tactic.
v.
Sanders
Com
own
monwealth,
and arrive at their
1:18
Ky.,
668
801 S.W.2d
denied,
a.m.,
(1990),
when Patricia
made her
112
Osborne
U.S.
cert.
Thus,
(1991);
consequence
Cosby
“911” call.
it is of no
v.
S.Ct.
cle have been faster slower grounds, other St. Clair cruiser. Similar ruled on police than Lane’s *10 244
Roark,
(1999).
fact,
Ky.,
monwealth,
inference that set the fire with victims, i.e., merely injure an intent to VII. INSTRUCTIONS. first-degree manslaughter, or a rea The trial judge instructed the person sonable per would have failed to jury on alternative theories of intentional ceive the risk that if he set fire to an murder, 507.020(l)(a) and wanton KRS residence, occupied the occupants would be (b), second-degree on manslaugh killed, ie., reckless homicide. ter, 507.040, KRS as lesser included of fense. Appellant asserts error in trial VIII. MISCELLANEOUS.
judge’s failure to further jury instruct the (intent first-degree manslaughter to in We find no error in the trial jure, kill), 507.030(l)(a), but not to judge’s KRS failure change Though venue. homicide, 507.050, and reckless many prospective jurors KRS had heard about case, lesser included An offenses. instruction we are unable to conclude that appropriate on lesser included offense is public opinion Whitley County was so if, if, only given on the evidence a against Appellant preclude aroused as to Commomuealth, juror reasonable could entertain a reason fair trial. Kordenbrock v. able guilt (1985), doubt of the defendant’s Ky., on the 700 S.W.2d cert. de nied, greater charge, beyond believe a rea 476 U.S. 106 S.Ct. sonable guilty doubt the defendant is granted part L.Ed.2d habeas of the lesser offense. Skinner v. grounds, Scroggy, Com- on other Kordenbrock v.
245 (6th denied, Cir.1990), to avoid a directed competent F.2d 1091 cert. evidence 919 retrial. 970, 1608, acquittal upon verdict 111 113 L.Ed.2d 499 U.S. S.Ct. (1991). judge’s “A not to
669 trial decision judgments of conviction Accordingly, the given great weight venue be change ‘is Whitley by the Cir- imposed and sentences present county in the and cause he is reversed, is are and this case cuit Court ” Hodge the presumed know situation.’ in trial accordance for a new remanded Commonwealth, 824, Ky., 17 835 v. S.W.3d opinion. the content of this (2000) Commonwealth, (quoting v. Nickell LAMBERT, C.J., JOHNSTONE, (1963), S.W.2d 850 cert. de Ky., 371 JJ., — WINTERSHEIMER, STUMBO nied, -, 121 148 U.S. S.Ct. concur. (2000)). L.Ed.2d 498 KELLER, J., by separate the of issues concurs
Appellant repeats
litany
GRAVES, J., joins.
in
every
penalty
e.g., opinion
which
appeal,
raised
death
unconstitutional,
the
penalty
the death
is
KELLER, Justice, concurring.
jury should have been instructed on “re
majority
we must
agree
I
with the
doubt,”
aggravating
factors
sidual
the
reverse Osborne’s convictions because
factors,
outweigh mitigating
and that
must
the Commonwealth to
trial court allowed
unanimity
required
is not
when consider
hearsay
inadmissible
introduce abundant
factors,
ing mitigating
etc. We have con
permitted
prosecu-
when it
statements
sistently held
otherwise
see no reason
grand jury
read
entire
tion to
Joe Reid’s
repeat
rejecting
our reasons for
these
I
testimony
sepa-
into
record.
write
See,
arguments
e.g.,
v.
here.
Tamme
however,
I
ma-
rately,
because believe
Commonwealth,
McQueen
Par
supra;
v.
overly
construc-
jority adopts an
narrow
ker,
(1997);
Ky.,
Bowling
S.W.2d
804(b)(3)’s
exception
tion
Commonwealth, Ky., 942
v.
S.W.2d
subject
far
tend[ ]
statements which “so
denied,
cert.
522 U.S.
118 S.Ct.
liability
civil or criminal
the declarant
(1997).
451,
ing a
repaired
he
the chain
government argues
that Weeks’
*12
upon
motorbike
which Osborne had
statement
against
penal
was not
his
in-
(4)
residence;
driven them to the
he heard
terest because he
expressly
did not
con-
gunshots and screams from inside the
fess
the crime involved.
do not
We
home;
804(b)(3)
and
that
away
he rode
from the
read Rule
to be limited to di-
scene on the motorbike with
Rather,
Osborne.
rect
guilt.
by
confessions of
The majority opinion emphasizes
referring
to statements that “tend” to
presence
subject
mere
at the scene where a crime
the declarant
criminal
liabili-
is committed
liability
ty,
does not create
and
encompasses
the Rule
...
state-
that, if
merely
demonstrates
Reid were
by
ments
a declarant
that would have
bystander,
claimed,
probative
as he
he would have
value in a trial against
liability
no
for facilitation of the crimes.
declarant.5
against penal
“statements
Many
interest”
of the statements Reid made in
804(b)(3),
exception
however,
in KRE
grand jury
is his
testimony
unques-
would
not
tionably
limited
“confessions” or
probative
statements
have had
in a
value
trial
which,
themselves,
by
crimi-
against
demonstrate
him.
majority correctly
While the
nal
liability.
Kentucky
Evidence
observes
evidence of Reid’s presence
Study
Rules
commentary
not,
Committee’s
at the
scene of the crime would
804(b)(3)
itself,
emphasizes
crime,
that the rule “is
guilt
establish his
such
widely construed to cover declarations
“piece
admission would be a valuable
which
probative
against
would have
value
puzzle”
against
in a case
him. Like-
wise,
declarants in
prosecutions,”2
statements,
criminal
although
and
standing
Reid’s
Kentucky’s
scholar,
alone,
leading evidence
might
Rob-
not demonstrate all of the
Lawson,
ert
necessary
observes
elements
“[statements
to convict him of a
confessing
offense,
to the commission of
they
strong
crimes are
criminal
build
foun-
clearly against penal
by any
interests
stan-
A prima
dation.
facie case for facilitation
dard of measurement. But
only
Reid lacks
one element—
self-incrimi-
nation need not be so absolute in
knowingly providing
order for
opportunity
means or
qualify
statement
admission tin- which aids the
commission
the offense6
for
der the exception.”3 In United
v.
States
—and the Commonwealth could establish
Thomas,4 the Fifth Circuit
of Ap-
through
Court
reasonable
inferences
Reid
peals
language
determined that
acted as a “lookout” rather than the inno-
804(b)(3)
FRE
embraces a
bystander
just
class of state-
cent
he claimed to be.
If
ments broader than mere confessions:
one more ingredient
pot—
is added to the
(Kentucky
2. KRE 804
Study
per-
Evidence Rules
ited to direct confession. A reasonable
added).
Commentary) (emphasis
Committee
son would have realized that remarks of the
Tilley [attributing
sort attributed to
involve-
Lawson,
party
ment in the crime
and
to one
Kentucky
3. Robert G.
Evidence Law
(Michie
(3rd Ed.)
thereby implying knowledge
another and
§
Handbook
8.45 at 425
1993)
strongly implied
per-
added).
involvement]
(emphasis
participation
sonal
in the ... crimes and
subject
hence would tend to
him to crimi-
(5th Cir.1978).
4.
wealth could murder my opinion many arson. In during made his testimo- statements Reid to criminal ny expose would tend to liability, I believe those statements 804(b)(3). scope of KRE
came within the *13 by I result concur reached majority because the lion’s share of Reid’s
grand jury testimony not fall within does 804(b)(3), agree KRE and I with the other majority. errors identified Accord- reason, time, I ingly, see no at this other suffi- determine whether evidence ciently corroborated those statements or to address constitutional chal- Osborne’s 804(b)(3).
lenge separate- to KRE I write my ly merely express discomfort with majority’s narrow construction 804(b)(3) language of the “state- exception. ments penal interest” J., GRAVES, joins. CABINET, KENTUCKY LABOR Appellant, GRAHAM, Judge, William L. Franklin Court, Appellee, Circuit Tyson Foods, Inc., Valley and River (Real
Animal Foods Parties Interest), Appellees. No. 2000-SC-0283-MR. Kentucky. Supreme Court April 7. See KRS 502.020.