*1 wealth, 794, (Ky.2005)
(“We CLAIR, Appellant, Michael D. mil ST. also address other issues retrial.”). likely are upon recur trial,
As to the join March 2003 I Parts Kentucky, COMMONWEALTH of IV.B., IV.C. and IV.D. majority Appellee.
opinion. I only concur result Part as to No. 2001-SC-0209-MR. IV.A.
Supreme Kentucky. Court of SCOTT, Opinion by Justice Concurring 20, Oct. in Part and Dissenting in Part. As Corrected Oct.
I concur all Cooper’s with of Justice IV.A.2,
opinion except issue in regards to objection.” “continuing objections granting such is
trolled the trial courts and is used to repetitive
avoid interruptions. They are a upheld
useful tool and should be when Otherwise,
granted. use their will become fraught waiver,”
so “danger with the attorney’s trial will avoid their use.
One, through repet- who has sat trials with objection
itive after repetitive objection, damaging
knows how can be
party how can irritating it be to the jury.
court—and not something It’s
one should do and this reason for,
asking getting ob- “continuing
jection.” objection continuing granted
in this case purpose served its and should upheld so to preserve its intended object
function—which in this case was to otherwise) (hearsay evidence
pertaining to the convictions.
General, Division, Appellate Criminal Frankfort, for Appellee. Counsel *3 of Opinion the Court Chief Justice LAMBERT.
FACTS
Clair,
Appellant, Michael D. St.
was con-
victed
two
of receiving
of
counts
stolen
$100,
property over
attempt
murder,
arson,
second-degree
commit
capital kidnapping. He was sentenced to
Brady,
death
kidnapping
for the
of Frank
Brady
Ap-
was murdered.
pellant
right
jury sentencing
waived his
on
non-capital charges,
agreed
ato
twenty years
of
attempted
sentence
for
murder,
twenty
for
years
second-degree
arson,
years
and five
on each count
$100,
stolen
receiving
property over
for
fifty years.
total of
Appellant
appeals
now
right.1
to this Court as a matter of
particular
This is not the first time this
defendant is before this Court.
Febru
ary
Jury
a Bullitt
Grand
County
Appellant
Capital
for
indicted
Murder
Brady.
of Frank
He was tried and con
August,
victed in
and sentenced to death in
September of
in a
1998. This Court
recent
Commonwealth,2
decision, St
Clair
(hereinafter
I”),
“St. Clair
reversed and
hearing
for a
penalty phase
remanded
new
death sentence. Prior
County,
trial
Court
Hardin
this
ren
(St.
Roark,3
II), in
Clair v.
Clair
dered St.
extraordinary
petition
which St. Clair’s
for
Namkin,
Boyce, Judy
Donna L.
Assis-
prosecution
for
prevent
relief to
Frankfort,
Advocates,
tant Public
Counsel
County
was denied.
kidnapping Hardin
Appellant.
In large part
complete
recitation of the
Stumbo,
Gregory
I
Attorney
D.
General of
facts is contained
St. Clair
and St.
Smith,
Kentucky,
II,
upon
David A.
Tami Allen Clair
and is
to illustrate the
relied
Stetler,
Judy,
Attorneys
Brian T.
appeal.
Assistant
facts relevant
110(2)(b).
§
Ky.
(Ky.2000).
Const.
3.
jail and in he St. Clair traveled facts will tenced to death. Additional they to kidnapped Colorado where Timo- necessary. Clair presented argues St. thy Keeling pickup and stole Keeling’s improperly al- Bylynn that his wife Keeling truck. was later in murdered testify privileged lowed to to four conver- New and pro- Mexico. St. Clair Reese sations, that those conversations and Keeling’s ceeded to drive truck to New should have excluded his assertion been Louisiana, Orleans, through then Arkansas KRE of the marital under arriving and Tennessee before at a rest made, St. When statements were stop County, in southern Hardin Ken- Bylynn married. were tucky. they in Hardin County, While de- Brady’s cided Frank model to steal late Privilege I. Marital They kidnapped pickup Brady truck. given by The first statement contested County drove him from Hardin Bullitt in Bylynn was that when she met St. Clair County shot killed where St. Clair Kentucky, reached Texas before St. Clair Brady. and Reese then St. Clair returned hugged something felt hard she him and County Keeling’s and set fire Hardin objection, on his belt. St. Clair’s she Over truck. if he testified that when she asked had gave Witnesses to the arson the Ken- he, Clair, she that St. told gun, testified tucky description State Police man he took off that old whose gun her Brady truck seen near the location where (the he into home of house had broken that truck was on fire. on Keeling’s Based Oklahoma). Stephens Vernon description, Trooper Herbert Bennett Bylynn’s statement concerned second stopped Reese and St. Clair while Brady’s Oklahoma driving through meeting were truck her St. Clair still changed Zandt. remarried her name Van She has since Frost’s Farm in December of long how St. Clair had told her he had night before he was arrested. It was been in Oklahoma and the date of the there Bylynn that St. Clair stated to that conversation when he did so. She re- St. Clair and Reese had to leave their sponded 17, 1991, it was December belongings and that they burned a truck. day before his arrest. This Bylynn Clair told St. that he returned to was elicited to contradict anticipat- Reese’s Oklahoma by riding with truck drivers. ed testimony that St. Clair had arrived at objected St. Clair and moved for a mistrial 1,1991. his farm on October on grounds that this latter statement objected St. Clair to the testimony, and had not been included the Common- objection the trial court notice, overruled the privileged wealth’s and that it was grounds under the marital privilege. Commonwealth could Bylynn cross-examine any subject about Bylynn’s third statement at trial con- previously she had testified. St. telephone cerned a conversation between argues Clair now that the introduction of her and St. Clair. She testified process, violated due Clair called her from Louisiana and that *5 right to a fair trial Bylynn’s and that testi- Reese was in the bathroom while he was mony was admitted in violation the mar- calling. The Commonwealth then elicited ital privilege. argues Clair also St. that at Bylynn St. Clair told that he had to 421.210(1) trial, things leave some of his in the time of appli- behind the KRS was truck, and that he said something about cable and spouse prohibit allowed one to in being objected Louisiana. St. Clair on the other testifying from to communica- grounds the that he provided was not no- during tions made marriage, their tice of the Commonwealth’s intention to Finally, are confidential in nature.5 relating introduce evidence to his travel to argues Bylynn’s statements that Louisiana, unexpect- and that it not an was incriminated St. Clair were also inadmissi- ed answer since the Commonwealth asked 7.24(1). they ble since violated RCr her if anything St. Clair had ever said The Commonwealth contends that the about in being Louisiana. The Common- privilege marital not in apply does responded wealth that this First, case for two reasons. the Common- Bylynn not new information since had tes- argues wealth Bylynn and St. Clair County tified to it at the Bullitt trial. joint activity were involved in un- Bylynn’s fourth statement is that St. 504(c)(1). der KRE It that no posits privi- Louisiana, Clair told her that he inwas lege applicable is since the communications and that he had told her he had in been testified to occurred St. Clair’s es- Oklahoma for a few weeks before he saw cape Bryan County from the in Jail Okla- in her December at a friend’s in house Bylynn homa and that him provided with County, Durant Oklahoma. She stated kidnap items which he later used to that he had told her that the Oklahoma Second, kill Brady. the Commonwealth (OSBI) Investigation State Bureau of had argues that these communications were place, the hiding searched but that he was hay they under some confidential because were made saw him. never The Commonwealth then asked presence of Reese. Bylynn 421.210(1) 1992, repealed by present KRS Acts law see KRE 501 to 511. 1, July ch. Sec. 30 effective 1992. For (1) (2) in which one any proceeding In testi spousal contains a
KRE wrongful conduct 504(a), charged with confiden spouse KRE a privilege, monial of: property privilege, against person marital communications tial 504(b), privi those exceptions KRE (A) other; The 504(c). are privileges Both leges in KRE either; (B) child of A minor mari protect and enhance designed (C) in the residing individual An otherwise relationship expense at the tal either; household 504(c)(1) KRE codifies useful evidence.6 (D) wrongful if the person A third 421.210(1).7 law, KRE KRS preexisting course of committed conduct is provides: against any of conduct wrongful (a) testimony. spouse Spousal named in this previously individuals to tes- privilege to refuse party has may court refuse sentence. oc- as to events tify against party pro- privilege allow their mar- curring after the date of of a minor if the interests ceeding privilege A riage. party has may be adverse- spouse of either child from testi- prevent spouse his or her affected; or ly fying against party events their mar- occurring after the date of in which any proceeding riage. parties. spouses are adverse (b) An indi- Marital communications. 504(a) (b) changed spousal KRE to refuse to vidual has 421.210(1) sig- in two privilege from KRS testify and to another prevent *6 First, testimonial respects.8 nificant commu- testifying any to confidential 504(a) expanded to in KRE privilege by made individual to his nication a wit- spouse preclude party enable marriage. their spouse or her him.9 testifying against spouse ness only by may The be asserted privilege Second, privi- communications the marital or holding privilege the individual 504(b) by narrowed de- in KRE lege conservator, by guardian, the holder’s require fining the term “confidential” A com- personal representative. intended was not that the communication munication is confidential if it is made i.e., any person, other for disclosure by an individual to his or her privately expecta- positive have been a there must and is not intended for disclo- spouse confidentiality.10 tion of any person. sure to (c) un- There is no Exceptions. must first address The issue we (c)(1)
der this rule: in this applies subsection whether analysis by our exam begin in which situation. We proceeding In criminal 504(c)(1). of KRE plain language sup- ining the is introduced to sufficient evidence exception states language of the conspired plain finding spouses that the port evidence” to must be “sufficient that there jointly in the commission of the or acted spouse finding “support charged; crime Commonwealth, Ky., (Ky. generally Slaven 8. See 6. Gill v. (1998). 851-56 S.W.2d 1964). Id. at 851. Lawson, Kentucky Evidence Law Hand- book, 5.10[6], 374(4th § ed. Lexis Nexis 2003). 10.Id. spired jointly crimes, or acted in the of him commission in various and their sensitive charged.”11 Plainly, crime excep- this nature combined with the circumstances of tion to the privilege applies only if each their disclosure rendered them confiden- spouse has contributed to or participated tial. For these reasons statements two charged. the crime In v.Gill Common- and three fall within the ambit confi- ' wealth,12,this applica- Court discussed the communication, dential and should have tion of the marital privi- communications been excluded virtue of the marital lege exceptions and its existed privilege. 421.210(1). Gill,
under KRS spouse of one privileged was held not Upon review, there is some doubt spouses where both being were accused of as to the confidential nature of statements particeps having criminis with the wife one and place four.15 Statement one took been indicted for the same crime that her fair, at a apparently in full was made husband had been convicted of commit- Moreover, public eye. view of the based ting.13 on the Bylynn, it is unclear whether St. Clair was alone or with Reese case, In this Bylynn facilitated St. However, at the time of this statement. Clair’s flight prison after his escape, but confidential statements need not be given there was no evidence that Bylynn con- behind closed doors to retain their confi spired jointly or acted in the commission of dential A whispered character. hushed or the crimes with which St. Clair was (two spouse statement from one may another charged of receiving counts stolen be considered $100, depending confidential property attempt over murder, circumstances of its disclosure. In arson, commit second-degree case, kidnapping). record is insufficient to make a definitive determination as to the confiden This Court has reviewed the rec Therefore, tial nature of statement one. extensively. ord Statements two and upon remand trial judge should hear undoubtedly three14 were made outside additional regarding evidence the circum *7 presence the any of Reese or other person. stances of statement one and make a factu Bylynn acknowledged on the stand that finding. al statement two in private occurred when Whether statement four was confidential she and St. Clair were in a barn loft. She trial, equally Bylynn unclear. At also confirmed that statement oc three seemed to relate the statement four disclo- phone curred a conversation with to telephone sure the same conversation in St. Clair while Reese was out of the room. 504(b), which the statement three As disclosure was stated KRE communica “[a] case, If made. this is the statement four privately tion is confidential if it is- made enjoy by privileged an would the same status as spouse individual his or her and is However, not intended for disclosure to statement three. review of the person.” running enough St. Clair was record leaves the Court with doubt authorities, require hearing and confided certain informa a on the statement four tion to his implicated wife. His statements issue. 504(c)(1) added). (emphasis
11. KRE
supra p.
14. See
12.
Accordingly, statements During penalty robbery. have ex- a privileged and should been committed were aggrava- all three phase, jury cluded at trial. As statements one found four, be held on hearing a should remand tors.
to determine their status. on aggrava- following instructions given during the ting circumstances were the privileged admission of penalty phase trial: prejudicial because the statements was cor testimony used Commonwealth testimony that
roborate Clair NO. 3 Reese’s St. INSTRUCTION By- and the ringleader was shooter. Circumstances) (Aggravating lynn witness as her testimo was a critical Michael fixing In Dale St. jail escape sentence ny repeated the details you of Kidnapping, for the offense alleged had stolen Clair St. Clair following aggravating It felt shall consider the weapon. murder revealed that she you believe from gun person when she met circumstances which Dallas, him in a reasonable testimony beyond and her contra the evidence doubt that he dicted St. defense had never to be Clair’s true: in Kentucky been because he told her he was re- Kidnapping 1. The victim Kentucky. Bylynn’s had truck in burned a leased alive. crucial because contained 2. The has a record of Defendant only guilt, St. Clair of admission Murder, of- conviction for pieces and one of a few evidence fense. placed Kentucky time of Kidnapping The offense of was com- Consequent and murder. kidnapping mitted the Defendant was en- while ly, Bylynn’s admission of Robbery gaged in the commission prejudicial error retrial is re Degree, in the as defined in In- first quired. struction 4.No. aggravates Appellant that these contends Jury II. Instructions 532.025(2) improper. provides: are KRS retrial, we anticipation of deem it for which the In all of offenses cases
necessary provide guidance pen- on the authorized, penalty may death alty phase given instructions the lan- consider, shall judge shall or he include guage with to some of the respect aggrava- jury for in his to the it to instruction tors misstated or was either erroneous. *8 consider, any mitigating circumstances argues St. Clair that he was denied his aggravating or circumstances otherwise right by penalty phase a fair trial the any of the by authorized law and follow- jury. given Specifical- instructions ing statutory aggravating mitigating or ly, improper St. Clair contends that was may be supported circumstances which the jury to be allowed to recommend a by the evidence. if it found that kidnap- death sentence 532.025(2)(a) alive; eight forth a list of ping victim was not released if it KRS sets to be prior aggravating found had a record convic- circumstances16 consid- that he of 532.025(2)(a) kidnapping or aggravating 1. The of murder 16. KRS lists cir- offense person with by a a committed cumstances follows: offense, capital or record of for a conviction a) Aggravating circumstances: by committed a murder was offense of by jury ered for eligibility aggravator to establish by “otherwise authorized law” 509.040(2) death, specifically the sentences of KRS imprisonment allowing of a jury impose death, life, a sentence of life or probation parole, without benefit of or LWOP 25 for kidnapping.22 In a note in or imprisonment for life probation without Commonwealth,23 Young v. we said that (LWOP 25) parole or years for 25 if those capital punishment could imposed be supported circumstances are by the evi- where a defendant murdered the victim case, dence and are by found a Young clarified kidnapping. jury beyond to exist a reasonable doubt.18 that “[kjidnapping is a capital offense and An inherent conflict exists within KRS Harris holds that murder, though not an 532.025 provisions between the requiring a aggravating circumstance enumerated in trial judge “any to instruct on mitigating 532.025(2)(a), KRS is an cir ‘aggravating or aggravating circumstances otherwise cumstance by otherwise authorized by authorized ”,19 532.025(3) law and KRS ”24 law.’ expla note culminates in an prohibits imposition of sentences nation of the interplay between KRS death, life, of or jury LWOP 25 unless the 532.025(2) and kidnapping by the crime of finds that one of the enumerated statutory stating as follows: aggravating circumstances exists.20 Murder, course, of proscribed by KRS statutory conflict was reconciled in 507.020. While kidnapping is enhanced group of decisions from this Court. to a offense if victim is not Harris v. Commonwealth,21 we held that subsequently released alive or dies as a Mdnapping murder of a victim is an result of kidnapping, the additional person officer, sheriff, history who public has substantial police of official or or convictions; deputy serious assaultive engaged sheriff at the time of the act kidnapping duties; The offense of performance murder or in the lawful of his was committed while the offender was en- gaged in the commission of arson in the 8.The offender murdered the victim degree, robbery degree, first emergency in the first protective when an order or a burglary effect, degree, rape in the first in the first domestic violence order was in or degree, sodomy degree; any or designed protect in the first when other order murder, offender, by 3. The offender act victim from the such as an bond, robbery, kidnapping knowingly armed or order issued as a condition of a release, great probation, parole, pre- created a risk of ditional death more than (1) diversion, person public place by one in a trial was in effect. means destruction, weapon weapon, of mass Cooper, Kentucky 17. 1 Instructions to Juries normally or other device which would (Criminal) (4th 1999). § 12.06 ed. Anderson hazardous to the lives of more one than person; 532.025(3). 18. KRS 4. The offender committed the offense of another, murder for pur- himself or for the 532.025(2) added). (emphasis 19. KRS pose receiving money thing value, monetary profit; or for other Cooper, Kentucky 20. 1 to Juries Instructions 5. The offense of murder was committed (Criminal) (4th 1999). § 12.06 ed. Anderson person prisoner who was a and the prison employee engaged
victim was a
*9
(Ky.1990).
21.
483
of the KRS
light
in
In
our construction
of
to kill
KRS
of
element
intent
532.025(2)(a)(l)
circum
507.020(l)(a)
aggravating
provides
statutory ag-
the
stance,
allegations of error
capi-
gravating
authorizing
circumstance
First,
we find
easily
are
resolved.
punishment
kidnapping.
tal
for
satisfies
aggravating
circumstance
Roark,
482,
Ky.,
v.
10
486-
Clair
S.W.3d
“pro
demands and
the Constitutional
(1999).25
87
meaningful
for distin
a
basis
vided
Harris, Young,
in
reasoning
line of
cases in
guishing
[the
the few
which
v.
in
and St. Clair Roark was reconfirmed
many
from
cases
penalty]
imposed
is
v.
Jacobs stated
Jacobs Commonwealth.26
not,”
Georgia,
Godfrey
v.
which it is
only
in obiter dictum that “Hams holds
1764,
427,
1759,
420,
100
446
S.Ct.
U.S.
death-eligible
that a defendant is
for
(1980)
398,
(quoting
64
406
Fur
L.Ed.2d
capital
if he
kidnapping
offense of
or she
238, 313, 92
Georgia,
v.
408 U.S.
man
kidnapping
also murdered the
victim.”27
2764,
2726,
S.Ct.
26. 58 (4th (Criminal) § Anderson ries 12.06 ed. 1999). Id. at 450-451. at 449. Id. (Ky.2004). 32.140 S.W.3d 510 (Ky.2002). 29. 84 S.W.3d
484
were not
in Appellant’s
entered
receiving
first two ed of
property thereby
stolen
Oklahoma Murder
implicitly
convictions until No-
acquitting him of
greater
22, 1991,
vember
approximately
six
first-degree
offense of
robbery.
(6)weeks
murder,
Brady’s
after
Appel-
It is
felony
well established that a
acknowledged
lant
culpability
first-degree
such as
robbery
proper
is a
phase testimony that he had been con-
aggravating
making
circumstance
one con
victed
those two
counts of Murder
victed of kidnapping
eligible.36
death
We
following a trial.... Because these two
find no
in
merit
St. Clair’s
contention
(2) murder
convictions demonstrated
there was
error in the language of the
that Brady was murdered by
person
“a
instruction. The instruction mirrored the
prior
with a
record of conviction for a
language
verbatim
of the model instruction
offense,”
capital
correctly
the trial court
as well as
language
of the statute.37
denied
motion
for
directed
Moreover, there was no error in the inclu
verdict
aggravating
circum-
sion of the definition of first-degree rob
Benham,
stance. Commonwealth v.
816
bery
jury
as its inclusion aided the
186,187 (Ky.1991).33
S.W.2d
determine
robbery
whether a
had been
The determination
finality
of level of
for a
remand,
committed.
If on
the evidence is
“prior record of conviction” under KRS substantially similar, the same instruction
532.025(2)(a)(l) was determined to
an
first-degree
on
robbery
aggravator
as an
accepted guilty plea
guilty
or a
verdict
given.
should be
rendered
a judge
jury.34
Our decision
Likewise, we find
no- merit
held that
purposes
of KRS
argument
Clair’s
that the Commonwealth
532.025(2)(a)(l) that a pending appeal does
was precluded
seeking
pen
the death
impact
finality
“prior
record
alty because
County
the Hardin
Grand
of conviction for a capital offense.”35 As a
Jury’s
identify
ag
indictment did not
law,
matter of
St. Clair had two
gravating circumstances.
capital convictions for the 1991 murders
Although “a defendant cannot be made
before he
kidnapping.
committed the
sentencing phase
to face the
Therefore,
retrial,
jury
should be
given
trial unless he or she is first
suffi-
accordingly.
instructed
cient notice of the
in-
Commonwealth’s
St. Clair also contends that
the third
penalty!,]”
tention to seek the death
...
aggravating
circumstance
Instruction
authority supporting [Ap-
is no
“[t]here
No. 3 of kidnapping
engaged
while
in a
pellant’s]
aggravating
claim that an
cir-
first-degree robbery
charged
was not
cumstance must be described in the in-
indictment,
and that the definition of
38
dictment.”
robbery in
4
Instruction No. misstated the
aggravating circumstance. St. Clair also
complied
The Commonwealth
with KRS
532.025(l)(a)
argues that he was entitled to a
by providing
directed
St. Clair with
verdict of acquittal because he was convict- written
in aggrava-
notice of the evidence
532.025(2)(a)(2); Cooper, Kentucky
33.
Id. at 570-71.
37. KRS
(Criminal)
(4th
§
Instructions to
12.06
Juries
Id. at 568-70.
1999).
ed. Anderson
Id. at 568-70.
Commonwealth,
38. St. Clair v.
485 give to coerce her to introduce. table ever tried it intended to tion her. She interview taped statement clearly Clair was stated indictment had, that no one at that table responded capital kidnapping with the charged with a man” lady headed but “a blond accomplish or advance the com- “intent house flashed pulled to her up felony,” i.e., first-degree rob- mission badge that if not talk 582.025(1) and told her she did only requires bery. KRS writ- her the sheriff to make get would aggravating notice of circumstances ten hearsay objected talk. on St. Clair 19, 1998, prior to trial.39 June On the trial court sustained grounds and of filed its Notice Intent Commonwealth continued objection. The Commonwealth 2001, January Penalty. of Seek Death a connec- attempting to show questioning approximately was tried two- Appellant people questioned tion between who years after the Commonwealth and-a-half trial, At St. Clair and St. Clam. Weedmen filed its notice. reliance on ground moved for a mistrial v. the proposi- Jones United States40 for testimony prejudicial. irrelevant and was aggravators all must alleged tion that Although admission of this Jones is incorrect. held the indictment reversal, error would it was not warrant charged elements offense that the retrial.42 upon and should not be admitted indictment, alleged in the must be sentencing penalty ag- considerations The second error concerned gravators.41 The indictment satisfies transcript of of Ste admission Vernon 6.10, requirements of and there RCr was testimony in phens preliminary hearing no error as to the indictment. of The Com Oklahoma in March 1992. transcript moved to admit the monwealth
In addition the claims of error ad- 804(b)(1). I,43we In St. Clair under KRE above, Appellant dressed has asserted nu- held the offense occurred before that as Most merous claims. asserted of adoption the 1992 and effective date error, frivolous, claims were not or are not 804(b)(1), governed KRE it would be upon However, likely to recur retrial. we previous rule introduction prohibiting a few will address such claims of error that unless prior testimony at criminal trial upon may recur retrial if the evidence is given previous “a substantially similar. trial of offense ... on the same the same admis charge.”44 Although we held the III. Various Other Claims sion of such evidence harmless because likely first upon error recur testimony, it of St. was cumulative Clair’s the testimony retrial is the introduction of error in this case nonetheless Mary Weedman about individuals com should be excluded. ing attempting to coerce her into talking Finally, we will address St. Clair’s with them. The Commonwealth He claims anyone whether at the defense last valid assertion error. inquired 510, (Ky.2004). v. 127 43. 140 S.W.3d 536-537 39. Garland S.W.3d 529, (Ky.2003). 546 Commonwealth, 140 S.W.3d 44. St. Clair v. 227, 1215, U.S. S.Ct. 143 L.Ed.2d 40. 526 119 510, 536-537, citing Com RCr 7.22. See also (1999). 311 119, (Ky. Bugg, 514 S.W.2d monwealth v. Howard, 1974); Commonwealth 1218, Id. at (Ky.App.1984). S.W.2d 42.KRE 401. *12 that when Commonwealth asked Reese death.46 It is well settled that statements “was there conversation that went on may be admitted show the declarant’s between Brady St. Clair and Mr. you as all mind, state of testimony showing a thirty drove that minutes to an hour toup mind, fear, declarant’s state of e.g., is ad- old Boston Road?” immediately Defense However, missible. testimony objected hearsay grounds. A bench cerning Brady’s daughter and his desire to conference was held and the trial judge go home was inadmissible hearsay and testify allowed Reese to grounds on the should have been excluded from trial. that Brady’s subject declaration was to the reasons, For forgoing we reverse dying exception declaration in KRE and remand. 804(b)(2). Reese Brady testified that said he had a daughter college and that she I, part As to COOPER and
was home for the weekend. Brady also JOHNSTONE, JJ., concur.
talked about his wife. The Commonwealth ROACH, J., by separate concurs Brady asked what had said about his wife opinion; WINTERSHEIMER, J., answered, and Reese “He wanting was by separate dissents opinion in which go back home.” SCOTT, JJ., join. GRAVES and Upon appeal, this the Commonwealth II, As to responds by part all concur noting except that Reese testified COOPER, J., who Brady by separate told dissents St. Clair that he wanted to go opinion. family. home to his The Common-
wealth
claims that this
was be-
III,
part
As to
all concur.
ing
Brady
used to show that
being
Concurring opinion by Justice ROACH.
against
held
his will. The Commonwealth
posits that this was admitted to
show
join
I
Parts II and III of
majority
topic of conversation
Brady
not what
actu-
I,
opinion. As to Part
I concur with the
ally said.
In support, the Commonwealth majority’s conclusion that it was error to
cites
v.
Wilson
Commonwealth45 for the
admit
statements two and three as
proposition
showing
that evidence
that a
communications,
were privileged marital
begged
victim had
always
for his life is
pursuant
to KRE
I agree
with the
However, Wilson,
admissible.
nei-
we
majority that the admission of statement
hearsay
ther addressed
nor discussed the
two mandates reversal of the case. How-
dying
exception.
declaration
We note that
ever, I believe the admission of statement
this argument is novel to
appeal
three amounted to
I
harmless error and
argued
at trial.
would not
ground.
reverse the case on that
This
was not admissible as a
Opinion by
COOPER,
Justice
dying declaration because the statements
concurring
part
dissenting
in part.
did not concern the impending causes of
death,
the victim’s
and it is not clear that
I agree that this case must be reversed
the victim was aware of
impending
because of introduction of evidence in vio-
1992).
(Ky.
45.
refusal
testify
or excluding
conclusion,
relevant evi
a declaration of the husband or
public good
dence has a
transcending the wife at the
question
time
the act in
normally predominate principle
utilizing
not privileged”. Certainly, under the situ
”
all rational means for ascertaining truth.’
facts,
ation
described
these
the wife
citing
der, or second-degree argua- arson. It is dissent. aiding abetting ble whether escape
results in conspiring purposes for the
rendering privilege. v.Gill Common-
wealth,
states,
(Ky.1964)
“when co-conspira- husband and wife are