Smith v. Commonwealth
920 S.W.2d 514
Ky.
1996
Check Treatment

*1 lights on, view. The in the store were even though wearing the robber bag was SMITH, Appellant, Buford Carl head, entirely his face not was ob- stature, mustache,

scured. His and hair col- or were all observable. The second factor is Kentucky, COMMONWEALTH of degree witnesses’ During of attention. Appellee. robbery, both clerks were able to view varying robber for lengths of time and No. 94-SC-397-MR. gave descriptions perpetrator. similar of the accuracy third factor is the Kentucky. Court of descriptions. show-up, Before the the clerks provided description with a of the Nov. 1995. proved robber that later to match the Rehearing As Modified on Denial of short, Caucasian, mustache, brown lant — May hair, glasses. The fourth factor is the certainty level of at confrontation. The

clerks based their on physi- identification

cal factors mentioned above which were

readily observable with or bag without the overruling

mask. In suppress, the motion to pointed

the court out that the clerks

show-up had not made an identification but simply said that the robber and the

appellant shared characteristics. The fifth

factor is time between the crime and the period

confrontation. The time between the

robbery show-up thirty and the was less than

minutes.

By analyzing factors, Biggers the five

totality of circumstances indicate that

appellant’s process rights due were not vio reliable,

lated. in-trial identification was though pretrial

even may identification or

may suggestive, not been have as shown Biggers

the same five factors discussed

above. Ky. See Jones v.

App., 556 S.W.2d The ad

mission of not such evidence did violate the process rights. due Further

more, the in-court identification the clerks money person

of the stolen found on provided at the time of arrest

evidence for the to consider whether the robber. reasons, foregoing

For the the decision of hereby

the Jefferson Circuit is Court af-

firmed.

All concur. *2 Hackett, Appellate De- Deputy P.

Bruce District Public De- fender of the Jefferson fender, Louisville, appellant; Daniel T. for Defender, Goyette, District Public Jefferson of counsel. General, Gorman, Attorney Lana
Chris General, Grandon, Attorney Crimi- Assistant Division, Attorney Appellate Office of the nal General, Frankfort, appellee. FUQUA, Justice. Detective William August

On Stanley], a member of Stanley [hereinafter Department’s Louisville Police quently, Crimes Commonwealth called Against (CACU) Children Unit arrested the extensive whose reiterated that to appellant pursuant to a alleging warrant F.T. already which testified. The F.T., sexual step-grand- molestation of objected Stanley’s testimony lant as it was daughter. arrest, Stanley At the time of the scope hearsay not within the limited ad- *3 orally appellant advised the 801A(a)(2) of his Miranda under KRE prior missible as a rights rights and later advised him of in his consistent statement. writing at appel- the CACU office which the Ultimately, appel- the convicted the lant writing. then in waived first-degree two sodomy lant of counts of and Stanley specifically then ap- informed the of A one count sexual abuse. total sentence pellant charges of one of the against him. (24) twenty-four years’ imprisonment of was appellant responded, The say “I I can’t didn’t imposed appellant appeals and the now as a things, do those but I speak want to to an right. of matter attorney.” point Stanley stopped At that his important The most con questioning appellant jail took the to tention is that the trial court committed re booking, attorney since was unavailable. by permitting versible error Detective jail, While en route to the tried to Stanley testify prior to about consistent re-open charges the discussion about the only statements F.T. which served to against Stanley him. informed the credibility the F.T.’s bolster of trial testi requested that since he had the assistance of Commonwealth, mony. The on the other counsel, Stanley could not the discuss case hand, argues that the trial court did not with him further. testimony admitting appel err in the since arriving jail, Stanley After at placed the (that theory of lant’s the case F.T.’s against a wall and went across “growing”) was fabricated and continued speak the room to with another officer. opened the door for the Commonwealth to Stanley a then noticed brief be- conversation allegation. rebut The Commonwealth Childress, officer, tween Officer a corrections in admitting further asserts that error conversation, appellant. and the After the consistent statement was harm Childress Stanley walked to and in- less. quired why as to was under continuously This court has held standing arrest. While Childress was with hearsay Stanley officer, testimony social workers is another voluntarily up inadmissible and to constitutes reversible error walked the officers and said, unfairly it allegedly good testimony because thing being “One bolsters alleged Commonwealth, victim. v. Sharp here is I anyone can’t do it to Chil- else.” 542, (1993); Ky., appellant, you dress 849 S.W.2d 546 Brown then asked the “Are v. Commonwealth, Ky., telling you 812 S.W.2d things?” appel- me did these The 503- (1991); Commonwealth, replied, Ky., lant 504 Mitchell v. person,” “I’m a sick and then (1989); away. Appellant walked S.W.2d Reed v. Common later returned and wealth, stated, Ky., (1987); prove I 738 S.W.2d 821-822 “The first case think I could I Commonwealth, Ky., v. guilty, just Hester 734 S.W.2d wasn’t but this a little case is (1987); Bussey Ky., year girl. only seven old She is about this 139, 141(1985). high 697 S.W.2d and I am rotten son a The a of bitch.” appellant disputed the these al- content of prohibiting hearsay rationale The behind leged statements. testimony involving in situations social work- trial, prosecution appropriately present

At as applicable called F.T. its ers is to the first F.T. relating prior witness. testified detail to case of detective many things already conveyed testimony had to The she the victim. Stanley prejudicial highly Detective and others. On cross-ex- Detective was be- amination, only bring out it served F.T.’s the defense tried to cause to bolster credi- addition, bility. In inconsistencies between F.T.’s statements at lacked already trial value had Stanley. probative and her statements to Subse- because F.T. ef- appellant, on the Basically, Stanley’s fectively testi- these statements. testified. contrary, argues he that once asserted mony dispute unnecessary because counsel, right the initi- fifth amendment to to existed as what F.T. since she him was of further conversation with ation adequately it stated in the courtroom and until was made absolutely forbidden counsel jury. front of the Basically, contends available. Moreover, the recent Court had the burden to that the Commonwealth U.S., -, ruling Tome 513 U.S. presumption overcome (1995), suggests S.Ct. 130 L.Ed.2d 574 voluntary. lant’s statements were not Stanley’s testimony would have been admissi- Commonwealth, on other if only ble F.T. had made statements hand, argues that the issue whether Stanley before her motive for fabrication ex- *4 rights subsequent fifth amendment waiver of strengthens long This case the held isted. viewed under the two- is valid should be Kentucky rule in set forth in Eubank v. Illinois, in Smith v. 469 prong test set forth 150, Ky. 210 630 275 S.W. (1984). 91, 105 490, 83 488 S.Ct. L.Ed.2d U.S. (1925), generally that (1) in two-prong includes: The test Smith by proof a witness cannot be corroborated clearly the accused invoked Whether previous on has the that occasions he made (2) counsel, right to the accused and Whether in same statements as those his tes- made “(a) voluntarily initiated further discussions Where, however, timony. a witness has (b) knowingly and intelli police, with the and ground on been assailed the that his right gently the he had invoked.” waived fabrication, is he a recent or that has some 493, Smith, 95, at 105 S.Ct. at 83 469 U.S. falsely, testifying proof that he motive so, 494. If are L.Ed.2d at such statements gave a similar account of the matter when admissible. valid and exist, not the the motive did effect before appellant’s right The fifth-amendment foreseen, of an or such account could be violated, volun because he to silence was not in- or when motive interest would have Supreme Court tarily it. The waived U.S. statement, duced a different is admissible. a has added.) that even where defendant has held (Emphasis counsel, right to invoked his silence and Id., Clearly, at 633. F.T.’s motive remained rights may subsequently be those invoked investigation the from the same start of the initi partially if “the accused himself waived Thus, through lack given and the trial. the communication, exchanges, or ates further probativeness Stanley’s testimony of and police.” with the Edwards conversations motive, consistency the of F.T.’s the admis- 477, 485, 1880, Arizona, 101 451 U.S. S.Ct. Stanley’s testimony sion as consis- 378, 1885, At the L.Ed.2d 386 tent statement constitutes reversible error. statements, appellant was not time Secondly, that contends interrogated. initiated being “Had Edwards in the trial court error committed reversible and meeting nothing ... in the Fifth objection, ap admitting, of the several prohibit the Amendments would Fourteenth custody. pellant’s in statements while voluntary merely listening to his police from The statements appellant believes these against him at using and them statements not have been admitted for constitu should 485, Edwards, at trial.” 451 U.S. tional, evidentiary procedural, reasons. 1885, soon as at 68 L.Ed.2d at 387. As S.Ct. counsel, which was following appellant requested allegedly made the Appellant all jail questioning began, dis intake area. actual statements at before while here, Stanley by ceased thing being in I can’t cussion initiated good “One jail. directly More anyone person.” appellant was taken else.” “I’m a sick do it to over, re-open tried to rights when appellant’s were constitutional case, Stanley reiterated about the not since the made discussion violated any part longer invoking he discuss his Miranda could after he voluntarily until the case with the rights, because ap by represented counsel. informed police and made reinitiated contact with the pellant, officer, not or other For reasons, the aforementioned this initiated further charges. discussion of the Court reverses the trial court’s admission of The U.S. Court clarified Stanley’s this ratio Detective concerning pri- Bradshaw, in Oregon nale 1039, 462 U.S. or consistent statements of the victim (1984) 103 S.Ct. L.Ed.2d 405 801A(a)(2), witness under KRE but affirms stating that the word “initiation” should be the trial court’s admission of Detective Stan- “ordinary construed dictionary sense ley’s testimony appellant’s relative to the Bradshaw, of the word.” at U.S. police custody. is, statements while in It 103 S.Ct. at 77 L.Ed.2d at Using therefore, be, ORDERED that this cause interpretation, this broad is, hereby and same REMANDED to the clearly this case “initiated” further discussion Jefferson proceed- Circuit Court for further police. with the ings consistent herewith. Thus, light of the voluntary STEPHENS, C.J., STUMBO, J, and initiation of discussion police, with the LEVIN, S.J., concur. appellant validly waived his fifth amendment rights as to incriminating statements he LAMBERT, J., only. concurs in result and, such, made prop- statements were WINTERSHEIMER, J., dissents erly admitted. *5 separate opinion, REYNOLDS, J., in which procedural also raises joins. questions, 3.02, under why RCr as to WINTERSHEIMER, Justice, dissenting. However, should be excluded. because no “unnecessary delay” occurred I respectfully must dissent part from that bringing judge, before the RCr majority opinion which reverses the Furthermore, 3.02 was not violated. “unnec conviction judge because the trial admitted essary delay” should not invalidate con testimony police concerning of a detective fession or statements made alleged consistent statements of the during period, this 801A(a)(2). unless coercive pursuant tactics victim-witness to KRE Commonwealth, were used. Ky., Reeves v. judge The trial did not commit reversible (1971); 462 S.W.2d 926 Carson Common permitting error in testify the detective to wealth, Ky., (1964); 382 S.W.2d 85 Common about the statements made to him Mayhew, Ky., wealth v. S.W.2d 928 victim. (1944). Appellant has failed to raise such integral part It was an of the defense allegations before this appeal. Court on theory story grown of the victim had from questioned the time she was first about Finally, cites KRE occurred, the abuse and anything denied that pertaining evidence, to other crimes mother, to statements to her to various social grounds statement, for the exclusion of his finally police. workers and to the The de- “The first I think I prove ease could I wasn’t theory fense was that the victim was fabri- guilty, just but year this case is a little seven cating story her spoke as she of various girl. only old high She is I this persons details to being ques- different while am a rotten son of a bitch.” It should be tioned about the abuse. Smith cross-exam- noted that the Commonwealth redacted ined the victim about the inconsistencies and appellant’s fourth statement to exclude growing allegations nature of her references to activity. other criminal After theory closing continued this argu- however, days, fourteen elected ment. jury statement, to let the hear the entire including previous references to the theory opened crime. The defense the door for jury prosecution Since elected to let allegations to rebut the of a statements, hear these growing he cannot now com and therefore untruthful plain they improperly were admitted. properly provid- order that the would be Commonwealth, Ky., Hendron v. possible understanding S.W.2d ed with the best (1972). actually what was and for said no other Hendron v. purpose. Cf.

Ky., 487 S.W.2d not unfair- unnecessarily bol-

ly prejudicial and did not the victim under the

ster statement

circumstances. in all re-

I affirm the conviction would

spects.

REYNOLDS, J., joins in this dissent. FRYREAR,

Leroy Jones, Daniel Charles Sloan,

McDonald, William Robert Eu Stover,

gene Smith, A. Earl Willie Tins

ley, Appellants, *6 PARKER, Kentucky

Phil Warden Penitentiary, Appellee.

State

No. 94-SC-539-DG. Kentucky. Court of 18, 1996.

Jan. May 23,

Rehearing Denied Advocate, Frank- Connelly, Public

Allison Burkhead, fort, Eddy, Assis- Hank William Advocates, Story, E. Ed- James tant Public appellants. dyville, for General, Gorman, Attorney Pamela Chris General, Attorney Murphy, Assistant J. Smith, Criminal Spenard, E. A. David David Division, Attorney Gener- Appellate Office Frankfort, Vanceburg, al, E. Lloyd Spear, Counsel, Ford, Angela Cabinet M. General Law, Resources, Department for Human Frankfort, appellee.