Brooks v. Commonwealth

114 S.W.3d 818, 2003 Ky. LEXIS 213, 2003 WL 22149337

• Court: Kentucky Supreme Court
• Decided: September 18, 2003
• Docket: 2001-SC-0458-MR
• Status: Published

Opinions

Opinion of the Court by

Justice WINTERSHEIMER.

This appeal is from a judgment based on a jury verdict which convicted Brooks of criminal attempt to commit murder, first-degree robbery and two counts of second-degree unlawful transaction with a minor. He was found to be a second-degree persistent felony offender and his sentence was enhanced to a total of 70 years in prison.

The questions presented are whether the trial judge correctly permitted videotaped testimony from an incarcerated witness; whether the audiotape of the statement made by the witness to police was admissible; whether the closing argument by. the prosecutor was improper; whether the victim suffered serious physical injury and whether the trial judge allowed too much of a description of the prior misdemeanor convictions of Brooks into the sentencing portion of the trial.

The evidence at trial indicated that Brooks, acting in complicity with others, including Wood and her minor son, robbed a cab driver. Brooks used a knife to cut the throat of the cab driver, and during the struggle that followed, he also slashed and stabbed the cab driver in the face and on his hands and arms. Subsequently, an informant contacted the police and told them .that he had been present when Brooks planned the crime and that Brooks showed him a sum of money and told him that he and the others committed the robbery. This informant then assisted the police by wearing a wire and obtained incriminating statements from Wood and her minor son. The cab driver/victim positively identified’ Brooks at trial.

Brooks testified in his own defense and denied planning or committing the robbery. He testified that the other individuals, including the informant, had committed the robbery and that Wood framed him because he refused to marry her on several occasions. He also denied telling the informant that he committed the robbery or driving him to the scene of the occurrence. After two mistrials, Brooks was convicted of attempted murder, first-degree robbery and two counts of unlawful transaction with a minor. As a second-degree persistent felony offender, he was sentenced to a total of 70 years in prison. This appeal followed.

I. Prior Videotaped Testimony

Brooks argues that the trial judge erred to his substantial prejudice and denied him the right to confront witnesses against him when he declared that an incarcerated witness who had recently attempted suicide was unavailable and permitted the prior videotaped testimony of that witness to be shown to the jury in lieu of her live testimony. We disagree.

At a pretrial hearing the day before the scheduled trial, the prosecutor advised the trial judge that Mary Wood, an incarcerated witness, had attempted suicide and would not be available to testify at trial. The Commonwealth filed a motion in li-mine to be allowed to play the videotape of Wood’s testimony from an earlier trial of Brooks in lieu of her being present at the third trial in person. The Commonwealth was allowed to play the videotape of the testimony from the September 20, 2000 trial which had ended in a mistrial. At the earlier trial, Wood was called by the prosecution and recalled by the defense. The earlier trial involved the same defendant and the same offense on the same charges. The Commonwealth relied on RCr 7.20 and RCr 7.22 which permit the use of previous trial testimony where a witness is unavailable. Defense counsel objected claiming that the evidence did not comport with the hearsay exception under KRE 804(b)(1) and that the defense did not believe Mary Wood was legally unavailable. He claimed that the unavailability was due to the inaction of the Commonwealth in not preventing the suicide attempt. The trial judge rejected the defense arguments and found that the witness was unavailable and that such unavailability was not caused by the Commonwealth.

Brooks also objected to the finding as to unavailability asserting that the Commonwealth had presented no physical evidence with regard to her illness. The Commonwealth then presented a sworn affidavit from the prosecutor about the information he had obtained noting that the affidavit also contained the telephone numbers of persons he had spoken to at the Kentucky Correctional Institute for Women. The defense countered that it did not believe the affidavit was sufficient and the trial judge asked if defense counsel would like, on the record, to telephone either or both of the prison officials listed in the affidavit to determine if the facts asserted were correct. Defense counsel declined to do so. After further discussion, the trial judge himself telephoned the prison during the in-chambers hearing in order to corroborate the affidavit and to ascertain the apparent condition of the witness. Neither party objected to the trial judge speaking to the representatives at the prison. The trial judge spoke to an officer at the prison who verified the circumstances that the prosecutor had reported. The officer also stated that although they could transport Wood and would follow any order of the court in that regard, it would be against medical advice and that the prison did not want the potential liability in the event that anything happened to Wood.

Following this conversation, the trial judge found that based on the affidavit of the prosecutor and his personal contact with the correctional facility personnel that the witness was unavailable for trial. Defense counsel told the court that he might, after consulting with Brooks, seek a continuance.

The following morning, the trial judge conducted another in-chambers meeting, this time with Brooks present, and ruled that he would allow the playing of the prior testimony. The trial judge also inquired directly of Brooks if he wanted a continuance in the light of his ruling. Brooks stated that he did not. There was no formal motion made for a speedy trial. Consequently, this issue was waived.

The trial judge properly exercised his sound discretion in determining that Mary Wood was unavailable to attend or testify because of sickness or infirmity pursuant to RCr 7.20(1). Such a decision is within the sound discretion of the trial judge. See Lovett v. Commonwealth, Ky., 103 S.W.3d 72 (2003); see also Ruppee v. Commonwealth, Ky., 821 S.W.2d 484 (1992), citing Carter v. Commonwealth, Ky., 782 S.W.2d 597 (1990). Such a determination mil not be reviewed unless the decision of the trial judge is clearly unreasonable. Ruppee, supra. A careful review of the record here shows that the decision of the trial judge was not clearly unreasonable. The trial judge correctly concluded that there had been a sufficient showing as to the unavailability of Wood because of health concerns. See Bruce v. Commonwealth, Ky., 441 S.W.2d 435 (1969).

Any concerns for the confrontation clause lack merit. There is an exception to a defendant’s constitutional right to be confronted with the witnesses against him where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant which was subject to cross-examination by that defendant. Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). . Barber, supra, is otherwise factually distinguishable. That case involved a witness who was located in a federal prison in another state. The court held that the mere absence of a witness is not sufficient grounds for dispensing with the constitutional right of confrontation, particularly in view of the increased cooperation between states and between states and the federal government with respect to processes for obtaining the presence of witnesses from outside the jurisdiction.

Here, the witness’ presence was compromised by her medical health. Commonwealth v. Howard, Ky.App., 665 S.W.2d 320 (1984), stated that if the prior testimony is found by the trial court to be reliable and trustworthy, and the witness was subject to cross-examination, it makes no difference whether the prior testimony comes by way of deposition, previous trial, preliminary hearing, or as in the Howard case, a bond reduction hearing, provided the same offense and same charge are dealt with. See also Wells v. Commonwealth, Ky., 562 S.W.2d 622 (1978) cert. denied 439 U.S. 861, 99 S.Ct.181, 58 L.Ed.2d 170; Cf. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). The case of Stoner v. Sowders, 997 F.2d 209 (6th Cir.1993), is factually different because in that case the Commonwealth failed to show why two witnesses were unavailable to give the same testimony in court when the depositions had been taken the day before trial. No such factual pattern occurred in this case. The trial judge was correct.

II. Audiotape Admissible

Brooks contends that the trial judge erred to his substantial prejudice and denied him his Sixth Amendment right to confront witnesses against him when the trial judge permitted the unredacted recorded statement of Mary Wood made to the police to be played for the jury even though she was not present at this trial. We disagree.

This assignment of error is related to the first issue involving the prior testimony of Wood. At the pretrial hearing the day before the trial, the trial judge considered the issue of the admissibility of the prior testimony of Wood. One of the objections raised by defense counsel was that he, unlike his predecessor in the previous trial, did'not intend to cross-examine Wood by introducing her taped statement to the police. Brooks notes that defense counsel claimed that this .decision was an exception to the exception under KRE 804(b)(1) because, under his analysis, the rule referred not only to there having been an opportunity to cross-examine the witness during former testimony, but also a similar motive with regard thereto.

The trial judge heard additional arguments on this question the morning of trial. He overruled the objections to the admissibility of the taped statement made to police. Such ruling was not erroneous.

Defense counsel introduced the taped statement of Wood at the second trial for the purpose of impeachment. As we previously determined in this opinion, Brooks waived the issue concerning the availability of Wood at the third trial and the trial judge correctly admitted her earlier testimony as the equivalent of a deposition. See RCr 7.20 and RCr 7.22. The former testimony was subject to all the proper exceptions and objections which could have been advanced to exclude the testimony of the witness when it was first given. See RCr 7.20(2). This is the general rule followed in most jurisdictions. See John E. Theuman, Annotation, Former Testimony Used at Subsequent Trial as Subject to Ordinary Objections and Exceptions, 40 A.L.R.4th 514 (1985).

Some jurisdictions, however, have carved out an exception to the general rule based on the concept of waiver. See Theuman, supra, citing e.g., Scribner v. Palmer, 90 Wash. 595, 156 P. 531 (1916) which upheld the denial of the defendant’s objections as to the competency of certain former testimony by a deceased plaintiff because the defendant himself elicited that testimony in cross-examination at the former trial. We agree with those jurisdictions and find that waiver occurred here when defense counsel introduced the taped statement at the second trial. The purported change in trial strategy was not sufficient grounds to sustain the objection. Nor does KRE 804(b)(1) require the exclusion of otherwise admissible prior testimony because of changes in, or second thoughts about, trial strategy. The trial judge correctly admitted the prior testimony of Wood including her taped statement to police. There was no Sixth Amendment violation.

III. Prosecutorial Misconduct

The trial judge properly overruled the defense objection to the closing argument of the prosecutor. Brooks complains that reversal is required because the remarks of the prosecutor supposedly shifted the burden of proof to the defendant when he argued that there were non-family member witnesses the defense could have called but failed to do so. We find no foundation for such a claim.

The record indicates that all of the defense witnesses except a police detective were relatives of Brooks and that this matter was first brought up by defense counsel in his closing argument. During trial, the defendant testified that because he supposedly traveled on the job, he had very few friends other than family members. The remarks of the prosecutor in closing argument did not produce error. As recently noted in Maxie v. Commonwealth, Ky., 82 S.W.3d 860 (2002), prosecutors are allowed wide latitude during closing arguments and may comment upon the evidence presented. By comparison, the comments of the prosecutor in this instance were not improper and the ruling of the trial judge was correct. There was no constitutional violation.

IV. Serious Physical Injury

The trial judge did not deny Brooks his right to due process when he made a determination that the defendant was a violent offender and that the victim suffered serious physical injury. The trial judge determined for the purposes of the violent offender parole ineligibility provisions of KRS 439.3401 that the injuries inflicted by Brooks on the victim were serious physical injuries. This followed the jury verdict finding Brooks guilty of the charged offenses.

Brooks now claims that this ruling was in error because “the jury specifically rejected a finding of serious physical injury” and because there was “no record evidence that the victim suffered a serious physical injury.” It should be understood that the statute which was amended in 1998 requires a violent offender to serve at least 85% of a sentence before becoming eligible for parole. See Myers v. Commonwealth Ky., 42 S.W.3d 594 (2001). Serious physical injury is defined in KRS 500.080(15) as “physical injury which creates a substantial risk of death, or which causes serious and prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ.”

Here, there was sufficient evidence to show that the defendant inflicted wounds on the neck which subjected the victim to substantial risk of death and caused serious and prolonged disfigurement. The most immediate risk was occasioned by the victim’s loss of blood. Hospital records demonstrate that when emergency technicians reached the victim on the highway, a large amount of blood was in his lap. Emergency room records confirm that following treatment, the patient was to continue to have close observation.

During the criminal incident, the victim had been ordered to travel miles out into the county to a remote location where he was attacked. There were two long crossing slashes on the neck of the victim and he had stab wounds at the right side of his face and neck and multiple defensive wounds on both upper extremities. The fact that the victim was found before he bled to death does not change the life threatening nature of his injuries. Although medical testimony may be the preferred method of proving the serious physical injury requirement, lay testimony may be considered. Johnson v. Commonwealth, Ky.App., 926 S.W.2d 463 (1996). The medical and nonmedical evidence in this case support the decision by the trial judge that the victim suffered serious injuries at the hands of the defendant. Thus, he was properly a subject for the violent offender parole limitation provided in KRS 439.3401.

Here, the jury correctly found from the evidence that Brooks attempted to kill the victim but that does not mean that the jury thereby rejected a finding of serious physical injury. The jury was instructed on first-degree assault as a lesser-included offense of criminal attempt to commit murder — even though both offenses are Class-B felonies. Having found Brooks guilty of the greater offense, the jury did not need to reach the lesser offense. It should be noted that there was no defense objection to the first-degree assault instruction on the basis of any lack of serious physical injury evidence. The ruling by the trial judge was appropriate. There was no constitutional violation of any nature.

V. Prior Misdemeanor Convictions

Brooks argues that the trial judge committed error when he allowed the Commonwealth to enter far too much description of prior misdemeanor convictions into evidence during the sentencing phase of the trial. We disagree.

During the sentencing phase, the Commonwealth presented a probation and parole officer to testify about a prior felony conviction of Brooks for first-degree assault under extreme emotional disturbance with a sentence of one year in the penitentiary. Thereafter, the Commonwealth introduced certified records pertaining to the misdemeanor convictions over defense objections.

KRS 532.055(2)(a)(2) permits the introduction of the nature of prior offenses for which a defendant was convicted. Here, the Commonwealth introduced a criminal complaint associated with prior convictions for unlawful transaction with a minor, ter-roristic threatening and theft by unlawful taking under $300. Brooks complains that the information contained in the criminal complaint far exceeds the amount of information a jury is allowed to hear for the purpose of imposing a sentence. He relies on Robinson v. Commonwealth, Ky., 926 S.W.2d 853 (1996). This Court stated in that case that all that is admissible as to the nature of a prior conviction is a general description of the crime. This Court went on to say that it would be sufficient to introduce the judgment with testimony that the defendant assaulted the woman with whom he had been living.

A careful examination of the record shows that there was no objection to this evidence on the grounds that it was more than permitted by the statute, and therefore prejudiced the defendant. The defense counsel did interpose a general objection to any misdemeanor record of Gary Brooks. Earlier at a bench conference, the defense counsel stated that he would object to the misdemeanor convictions, although he knew the felony convictions were admissible.

As a general rule, a party must make a proper objection to the trial court and request a ruling on that objection or the issue is waived. Commonwealth v. Pace, Ky., 82 S.W.3d 894 (2002); accord Bell v. Commonwealth, Ky., 473 S.W.2d 820 (1971). Here, Brooks waived the issue because his stated objection at trial was not at all of the nature which he now raises on appeal. There was no federal or state constitutional violation.

There was no error of any kind in reaching the decision promulgated by the trial judge. The elements enumerated in the rule have been recognized as being illustrative, rather than exhaustive. See Commonwealth v. Higgs, Ky., 59 S.W.3d 886 (2001), citing Cornelison v. Commonwealth, Ky., 990 S.W.2d 609 (1999). It has been recognized as a policy to provide full and accurate information to a sentencing jury. Cornelison, supra. See also Huff v. Commonwealth, Ky., 763 S.W.2d 106 (1988).

Here, the information provided regarding misdemeanor convictions of Brooks was directly relevant to the crimes for which the jury had just found him guilty. The criminal complaint on the third-degree unlawful transaction with a minor showed that Brooks previously had engaged in the sort of coercive conduct which he used to induce the two minors into the robbery of the cab driver. The criminal complaint regarding terroristic threatening indicated that the defendant was prone to the sort of violent conduct inflicted on the victim here. Finally, the criminal complaint on the charge unlawful taking under $300 demonstrated an inclination to commit theft crimes motivated by relatively small amounts of cash such as that which he took from the victim in this case. Robinson, supra, is factually distinguishable because the complained of penalty evidence there consisted of testimony by a victim of a prior assault who was allowed to testify at length. No such detailed testimony was permitted here. The penalty phase misdemeanor evidence was not clearly beyond the limitation set for such evidence by Robinson. See also Hudson v. Commonwealth, Ky., 979 S.W.2d 106 (1998). The information provided here was relevant to arriving at an appropriate sentence for this particular offender. See Williams v. Commonwealth, Ky., 810 S.W.2d 511 (1991).

The judgment of conviction and sentence is affirmed.

LAMBERT, C.J., and GRAVES, J., concur. COOPER and JOHNSTONE, JJ., concur but as to result only on issue I. KELLER, J., dissents by separate opinion and is joined by STUMBO, J., who also dissents by separate opinion.