Commonwealth of Kentucky v. Steven D. Roark

• Court: Kentucky Supreme Court
• Decided: February 24, 2022
• Docket: 2020 SC 0080
• Status: Unknown

Opinion

Supreme Court of Kentucky 2020-SC-0080-DG

COMMONWEALTH OF KENTUCKY APPELLANT

ON REVIEW FROM COURT OF APPEALS V. NO. 2017-CA-1665 KNOX CIRCUIT COURT NO. 15-CR-0112-003

STEVEN D. ROARK APPELLEE

ORDER GRANTING PETITION FOR MODIFICATION

The Petition for Modification, filed by the Appellee, of the Opinion of the

Court, rendered December 16, 2021, is GRANTED.

All sitting. All concur.

ENTERED: FEBRUARY 24, 2022.

_______________________________________ CHIEF JUSTICE CORRECTED: FEBRUARY 24, 2022 RENDERED: DECEMBER 16, 2021 TO BE PUBLISHED

ON REVIEW FROM COURT OF APPEALS NO. 2017-CA- 1665 KNOX CIRCUIT COURT NO. 15-CR-0112-003 V.

OPINION OF THE COURT BY JUSTICE CONLEY

REVERSING AND REMANDING

This case comes before the Court on appeal by the Commonwealth, the

Appellant, from the opinion of the Court of Appeals which reversed Steven

Roark, the Appellee’s, conviction and sentence, ordering a new trial. We

granted discretionary review as there was a novel question whether the

Commonwealth had the same motive and opportunity to cross-examine a

person during their guilty plea as it would have if the same person were

subsequently a witness at a criminal trial under KRE1 804(b)(1). After oral

argument and review of the record, however, we conclude the proposed

witness’ unavailability is a threshold matter dispositive of the case.

1 Kentucky Rules of Evidence.

1 As a result, we hold the trial court did not abuse its discretion in finding

the witness was not unavailable pursuant to KRE 804(a)(5), and reverse the

Court of Appeals. We accordingly remand this case to the Court of Appeals for

consideration of Roark’s additional arguments that were not addressed by the

court due to its reversal of his conviction.2

I. Factual and Procedural Background

On February 25, 2015, Roark and Alvin Couch, along with several

others, were arrested by Kentucky State Police in Knox County after a search of

the trailer (wherein they were present) revealed methamphetamine, equipment

for the manufacturing of methamphetamine, and other drug paraphernalia.

The Commonwealth indicted all persons on manufacturing methamphetamine,

first offense; possession of a controlled substance, first degree; controlled

substance endangerment to a child, fourth degree; tampering with physical

evidence; and possession of drug paraphernalia. Roark was also indicted as a

persistent felony offender, but the charge was dropped prior to his trial.

In early May 2017, Couch entered an open plea of guilty. During the plea

colloquy, he made several statements to the effect that he acted alone in

manufacturing the methamphetamine. Later that same month, Roark went to

trial. His defense was he had no part in manufacturing the methamphetamine.

He sought to introduce a certified video record of Couch’s plea colloquy as

exculpatory evidence in support of this defense. The trial court, however,

2 Roark v. Commonwealth, 2017-CA-001665-MR, 2020 WL 594129, at *7 (Ky.

App. Feb. 7, 2020) (“Because we are reversing for a new trial, we need not address Roark's arguments that there were three errors regarding his jury instructions.”).

2 refused to admit the video as it believed Couch was available to testify in

person.

At the time of Roark’s trial, Couch was known by both the

Commonwealth and Roark to be located at the Leslie County Detention Center.

Both Leslie and Knox counties are in Southeastern Kentucky. Though they do

not share a contiguous border, we take notice that the Leslie County Detention

Center, located in Hyden, is approximately 51 miles distance by public roadway

from the Knox County courthouse, located in Barbourville.3

Roark represented to the trial court he had subpoenaed Couch to testify

at trial and his investigator had delivered the subpoena to the Leslie County

Detention Center. His counsel specifically stated, “My investigator took care of

that and I’m pretty sure it was left with the defendant, but I will not—but I

don’t want to go on record. He told me it was taken care of and I just

assumed.” There was also some mention of a transport order that had been

discussed between the trial judge and defense counsel prior to trial, but Roark

concedes no transport order exists in the record. Neither is there a returned

subpoena. The trial court found no court order existed compelling Couch’s

attendance at trial, therefore he did not qualify as an unavailable witness

under KRE 804(a)(5).

Roark was convicted of manufacturing methamphetamine, possession of

a controlled substance, tampering with physical evidence, and possession of

drug paraphernalia. The jury recommended a ten-year sentence on the

3 Courts will take judicial notice of the geography of the state and location of cities therein. Commonwealth v. Payne, 245 S.W.2d 581, 582 (Ky. 1952).

3 manufacturing methamphetamine count, with concurrent sentences of one

year each on all other charges totaling ten years’ imprisonment. The trial court

imposed the recommendation. Roark appealed.

The Court of Appeals reversed his conviction and ordered a new trial. Its

decision rested on three points. First, citing Dickerson v. Commonwealth, 174

S.W.3d 451 (Ky. 2005), it stated its belief that the refusal to admit the video

recording implicated Roark’s Due Process right to present a defense. Secondly,

it concluded Roark’s counsel’s representation to the trial court that a subpoena

had been delivered was sufficient to demonstrate a good faith effort had been

made to procure Couch’s presence at trial. The court reasoned since the

Commonwealth has a higher burden to demonstrate a witness’ unavailability

pursuant to the Confrontation Clause, this Court’s approval of unavailability

determinations based solely upon representations of the Commonwealth must

perforce mean an accused defendant’s representations also are sufficient to

determine unavailability. Additionally, the court believed the trial court’s

demand for physical proof of a subpoena or transport order was effectively

creating a new element under KRE 804(a)(5). Finally, under KRE 804(b)(1), the

court ruled the Commonwealth has the same opportunity and motive to cross-

examine a defendant during their guilt allocution as it would have if the same

person was subsequently a witness in a criminal trial of another person.

We now address the merits of the appeal.

II. Standard of Review

Determinations of a witness’ availability for purposes of KRE 804(a) are

reviewed for an abuse of discretion. Brooks v. Commonwealth, 114 S.W.3d 818,

4 821 (Ky. 2003). In the civil context, though equally applicable here, we have

noted this standard assumes the trial court is “empowered to make a

decision—of its choosing—that falls within a range of permissible decisions.”

Miller v. Eldridge, 146 S.W.3d 909, 915 (Ky. 2004) (quoting Zervos v. Verizon

New York, Inc., 252 F.3d 163, 169 (2d Cir. 2001)). Thus, only a decision which

is “arbitrary, unreasonable, unfair, or unsupported by sound legal principles”

will be reversed. Id. at 914.

III. Analysis

A. KRE 804(a)(5) and the Good Faith Requirement

Among the several scenarios to determine witness availability, a witness

is unavailable if he is “absent from the hearing and the proponent of the

statement has been unable to procure the declarant's attendance by process or

other reasonable means.” KRE 804(a)(5). The Court of Appeals premised its

ruling below on the belief that Roark had a lesser standard of proof to

demonstrate unavailability than the Commonwealth. The court also believed

the Commonwealth’s heightened burden “has not been proven to be all that

onerous as out-of-court testimony has been admitted even without an effort to

subpoena the witness or submit proof of true unavailability based on bare

assurances from the Commonwealth that a witness is unavailable.” This

statement was supported by citations to Lovett v. Commonwealth, 103 S.W.3d

72, 83-4 (Ky. 2003), and St. Clair v. Commonwealth, 140 S.W.3d 510, 539-40

(Ky. 2004).

The Commonwealth does indeed have a constitutional burden of proof to

demonstrate a good faith effort pursuant to the Confrontation Clause. Barber v.

5 Page, 390 U.S. 719, 724-25 (1969). But as Professor Lawson aptly notes, our

rule also “intends to require a good faith effort to procure the attendance of the

declarant at trial even when he is beyond the court’s jurisdiction.” Robert G.

Lawson, The Kentucky Evidence Law Handbook § 8.40[6][f], at 645 (5th ed.). In

a word, KRE 804(a)(5) embraces the Barber rule. KRE 804(a)(5) makes no

distinction between Commonwealth and defendant, speaking only of the

“proponent of the statement . . .” Thus, the good faith requirement is equally

applicable to all parties, and there is no basis within the rule to find a

heightened burden for the Commonwealth.

In Marshall v. Commonwealth, we held “[a] trial court cannot merely rely

on the Commonwealth's assurances of unavailability in deciding to admit

hearsay evidence that is conditioned upon unavailability.” 60 S.W.3d 513, 519

(Ky. 2001). Importantly, we cited to the case of Justice v. Commonwealth, 987

S.W.2d 306, 313 (Ky. 1998), for that holding. The Justice case, however, did

not involve the Commonwealth asserting the unavailability of a witness but

rather the accused defendant. Id. Thus, we have consistently held KRE

804(a)(5) requires the proponent of a witness, whether the Commonwealth or a

defendant, to demonstrate a good faith effort to procure the witness by process

or other reasonable means. Moreover, we have disapproved of trial courts

relying merely on the assurances of a proponent to predicate a finding of

unavailability. As we remarked before,

the requirement of KRE 804(a)(5) that the proponent of the introduction of the statement must show that he was unable to produce the declarant through process or other reasonable means is a logical safeguard against self-serving fabrication; i.e., if the declarant's testimony is critical to the defense [or prosecution],

6 then it stands to reason that the defendant [or prosecutor] would do all he reasonably could to put the declarant before the jury. Id. at 314. The Court of Appeals’ understanding of our holdings in Lovett and

St. Clair to the contrary does not withstand scrutiny.

In Lovett, the defendant had entered an Alford plea and appealed the trial

judge’s order that an unavailable witness’ deposition be taken by video tape in

South Dakota with both the defendant and his counsel present. Lovett, 103

S.W.3d at 77. Thus, the issue was not whether introduction of witness

testimony violated the Confrontation Clause. Id. “In fact, because Appellant

entered a plea before trial, the trial judge never made a final ruling on the

admissibility of the deposition at trial; indeed, the deposition was never taken.”

Id. at 82. Lovett then is completely inapposite to the case at bar and its peculiar

factual scenario suggests a limited range of application. Moreover, the issue of

the Commonwealth’s good faith effort was not that the trial court had relied

only upon the Commonwealth’s mere verbal assurances of unavailability, but

the Commonwealth had not followed the Uniform Act to Secure the Attendance

of Witnesses from Within or Without a State in Criminal Proceedings.4 We held

the Commonwealth had no mandatory duty to resort to that law in order to

satisfy the good faith effort requirement. Id. at 84. Therefore, we believe the

Court of Appeals’ reliance on Lovett is misplaced. Lovett is both factually and

legally distinguishable. Additionally, the Court of Appeals’ interpretation of

Lovett’s import is directly contrary to otherwise clear statements of law on

point. Justice, 987 S.W.2d at 314; Marshall, 60 S.W.3d at 519.

4 KRS 421.230 - 421.270.

7 The reliance upon St. Clair is equally misplaced. In fact, Part III(D)(4) of

that opinion—addressing the determination whether a witness, Van Zandt, was

unavailable—divided this Court in several ways. No position advocated on that

issue commanded a majority. The memorandum opinion’s discussion in Part

III(D)(4), endorsed only by Justice Graves, equivocated on the issue; noting only

that a doctor’s letter stating Van Zandt could not travel due to pregnancy

complications was handed to the defense counsel but not to the trial judge nor

ever submitted in the record. St. Clair, 140 S.W.3d at 540. After noting “the

Commonwealth could have made a much cleaner record . . . [,]” Justice Graves

concluded the trial court did not abuse its discretion. Id.

Justice Cooper, however, joined by Chief Justice Lambert, concurred

only with the result of Part III(D)(4). He preferred to “conclude that the hearsay

evidence offered by the prosecutor in this case was sufficient to support the

trial court's finding that Van Zandt was unavailable . . .” Id. at 574 (Cooper, J.,

concurring in part and dissenting in part). Nonetheless, Justice Cooper did

believe the record demonstrated the defendant and trial judge were handed

physical proof of the doctor’s letter at a hearing on the issue of Van Zandt’s

unavailability. Id. at 573. Thus, three justices believed physical evidence

existed to demonstrate the validity of the Commonwealth’s assertions Van

Zandt could not travel due to pregnancy complications; therefore, she was

properly deemed unavailable under KRE 804(a)(4).

Contrary to that belief, three justices dissented from the conclusion in

Part III(D)(4). Justice Keller, joined by Justices Johnstone and Stumbo, cited

the Court’s decision discussed above in Marshall v. Commonwealth, thereby

8 concluding “there is absolutely nothing in the record of this case to

demonstrate Ms. Van Zandt's unavailability other than the Commonwealth's

representation that Ms. Van Zandt's pregnancy prevented her from traveling to

Kentucky . . .” Id. at 576 (Keller, J., concurring in part and dissenting in part).

Thus, three justices believed no physical evidence supported the

Commonwealth’s representations in that case. Justice Wintersheimer did not

join any opinion but concurred in result only. Id. at 572.

Suffice it to say, St. Clair is not binding authority concerning KRE

804(a)(5)’s evidentiary demand to demonstrate good faith. But given our

understanding of the good faith requirement contained in KRE 804(a)(5) as

explained in Justice v. Commonwealth and Marshall v. Commonwealth, we now

explicitly reject Justice Cooper’s partial concurrence in St. Clair insofar as it

holds the mere representations of a proponent are sufficient to predicate a

determination of a witness’ unavailability. Justice Keller’s partial dissent

advocating for the rule as laid down in Marshall, 60 S.W.3d at 519, was and is

the correct statement of law in the Commonwealth. St. Clair, 140 S.W.3d at

576. (Keller, J., concurring in part and dissenting in part).

KRE 804(a)(5) imposes an equal burden on both parties to demonstrate a

good faith attempt had been made to procure a witness’ presence at trial before

the witness will be deemed unavailable. Generally, the trial court may not rely

on mere verbal representations of the proponent to determine unavailability.

Marshall, 60 S.W.3d at 519. Instead, the evidence demanded to prove good

faith must be independent of a proponent’s mere verbal representations, lest

9 the “self-serving fabrication” intended to be guarded against comes in through

the backdoor. Justice, 987 S.W.2d at 314.

B. Roark’s Failure to Demonstrate Good Faith Effort per KRE 804(a)(5) Having clarified the rule, the Court of Appeals’ opinion cannot stand. At

trial, the only evidence as to Couch’s unavailability offered by Roark was his

counsel’s statement that his investigator had delivered a subpoena to the Leslie

County Detention Center. Significantly, counsel declined to affirm the

subpoena had been personally delivered to Couch. Despite this, the subpoena

is not the dispositive factor. Because Couch was in the custody of the

Commonwealth, a subpoena would have been insufficient to procure his

presence at trial.

It is a matter of routine practice that when a witness is in the

Commonwealth’s custody and his presence is necessary at a hearing or trial,

the proponent of the witness will obtain a transport order signed by the trial

judge authorizing the witness’ release at the designated time and to the

designated courthouse, and deliver said transport order to the relevant

custodial authority. The record contains no transport order although Roark’s

attorney did allude to one. But mere verbal representations are not enough to

determine the transport order existed. Justice, 987 S.W.2d at 314.

Neither the Rule of Civil Procedure nor the Rules of Criminal Procedure

speak of transport orders. Nonetheless, given their ubiquity in the day-to-day

business of the courts, we hold transport orders fit comfortably within the

“other reasonable means” contemplated by KRE 804(a)(5).

10 C. Roark’s Due Process Right was not Harmed by Application of the Rules of Evidence Finally, we address the Court of Appeals’ conclusion that application of

the rules of evidence in this case constituted a Due Process violation per the

Fourteenth Amendment of the Constitution. We believe that conclusion without

merit. While we do not denigrate the holding in Dickerson v. Commonwealth,

174 S.W.3d 451 (Ky. 2005), we do not believe it is controlling in this case.

“[W]here constitutional rights directly affecting the ascertainment of guilt

are implicated, the hearsay rule may not be applied mechanistically to defeat

the ends of justice.” Chambers v. Mississippi, 410 U.S. 284, 302 (1973). But we

have applied that rule to mean only where the rules of evidence “place an

impossible bar” upon the proponent, obstructing his presentation of a defense,

will the constitutional considerations overcome evidentiary niceties. Justice,

987 S.W.2d at 313. Dickerson conforms to that condition.

In Dickerson, the trial court refused to admit a transcript, prepared by

the proponent, from a video recording of an unavailable witness’ prior

testimony, which was the sole evidence the defendant could present, because it

was not properly authenticated pursuant to CR5 30.06(1). Dickerson, 174

S.W.3d at 470. We noted, however, that CR 30.06(1) applied to an era prior to

the adoption of video recordings as official records for trials. Id. In short, by

applying CR 30.06(1) the trial court essentially required a non-existent court

reporter to authenticate the proponent’s transcript which, even had the court

reporter existed, he would not have been empowered to do—an impossible bar

5 Kentucky Rules of Civil Procedure.

11 if there ever was one. Instead, the proper rule the trial court should have

applied was KRE 901(a). Id. at 470. After identifying the correct rule, we then

verified the proponent’s transcript satisfied the conditions of KRE 901(a). Id. at

471. Only after ensuring the transcript conformed to the rules of evidence, did

we determine the transcript should be admitted upon retrial if the witness was

again unavailable. Id. Dickerson therefore does not stand for the proposition

that when a defendant’s only evidence is hearsay, he is constitutionally

absolved from complying with the rules of evidence.

In this case, had Roark simply made copies of the returned subpoena

and transport order he alleged existed and presented them to the trial court,

the court would have had a proper basis to find Couch unavailable and admit

the video recording. This is hardly an impossible bar to meet nor is it a

mechanistic application of KRE 804(a)(5). Dickerson is inapplicable to his case.

Roark’s right to present a defense was not harmed by the trial court’s refusal to

find Couch unavailable.

IV. Conclusion

KRE 804(a)(5) requires a proponent of a witness demonstrate good faith

efforts have been made to procure the witness’ presence at trial either by

process or other reasonable means before the witness will be declared

unavailable. Mere verbal representations of the proponent may not be relied

upon by the trial court to predicate a determination of unavailability. Roark did

not satisfy this burden as he could not produce a copy of the returned

subpoena delivered to Alvin Couch nor a transport order delivered to an

authorized authority at the Leslie County Detention Center. Therefore, the trial

12 court did not abuse its discretion in determining Alvin Couch was available for

trial. The Court of Appeals is reversed. This case is hereby remanded to the

Court of Appeals for consideration of Roark’s additional arguments.

COUNSEL FOR APPELLANT:

Shannon Dupree Assistant Public Advocate Department of Public Advocacy

COUNSEL FOR APPELLEE:

Daniel Cameron Attorney General of Kentucky

Robert Baldridge Assistant Attorney General