Commonwealth v. King

950 S.W.2d 807, 1997 WL 200430
CourtKentucky Supreme Court
DecidedApril 25, 1997
Docket95-SC-361-DG
StatusPublished
Cited by15 cases

This text of 950 S.W.2d 807 (Commonwealth v. King) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. King, 950 S.W.2d 807, 1997 WL 200430 (Ky. 1997).

Opinions

GRAVES, Justice.

Appellee, Terry Michael King, was convicted of conspiracy to sell or possess with intent to sell over five pounds of marijuana. He was fined $7,500 and sentenced to five years imprisonment, probated for five years. The Court of Appeals reversed and remanded for a new trial upon a finding of improperly admitted hearsay evidence. We granted discretionary review. The issues raised on appeal are: (1) the proper application of KRE 801A(b)(5), the hearsay exception for statements made during and in furtherance of a conspiracy; and (2) the duty of a reviewing appellate court to give proper deference to the trial court’s findings that are supported by the evidence.

The Metro Narcotics Division of the Louisville Police Department and Detective Greg Treadway, an undercover officer, arranged a reverse sting operation targeting Eugene Boyd, a co-defendant of Appellee. On Octo[808]*808ber 24, 1990, the sting was executed at Boyd’s residence. As Detective Treadway approached the residence, he spotted Appel-lee’s van parked in front of Boyd’s residence. Since the presence of a van was unexpected, he contacted Boyd, via walkie-talkie, for clarification. Boyd responded, “It’s okay, that’s my money man.” Detective Treadway then delivered a sample of the marijuana to Boyd’s back door. Explaining that he had to talk to his money man, Boyd left the room and reappeared shortly thereafter carrying a zippered pouch containing $17,000. Detective Treadway gave Boyd the pound of marijuana which Boyd took to another part of the house. Upon returning, Boyd stated that he liked the sample and that if the rest of the marijuana was of the same quality, he would take all fifteen pounds. Police officers stormed the house once Detective Treadway had taken Boyd outside under the pretense of obtaining the rest of the marijuana.

Detective Warman entered the kitchen and found Appellee fumbling in a garbage can. Appellee was then patted down, seated at a kitchen table, and given instructions not to move. The pound of marijuana was in the trash can. However, neither the marijuana nor the trash can had Appellee’s fingerprints.

Appellee and Boyd were arrested, indicted, and tried together for conspiracy to sell or possess with intent to sell over five pounds of marijuana. Boyd pled guilty after opening statements and the case proceeded against Appellee. Appellee moved to exclude Boyd’s out-of-court hearsay statements which identified Appellee as the money man.

Appellee claims he went to Boyd’s residence because Boyd sold him an engine for his van and the van was vibrating excessively. Appellee contends Boyd’s girlfriend admitted him into the house and instructed him to wait in the kitchen because Boyd was busy. While he was waiting, the police stormed the house and arrested him. In ruling on Appellee’s suppression motion, the trial judge rejected Appellee’s explanation of his presence at the crime scene and inferred that he was there for the marijuana transaction. Apparently, the trial court did not find it to be a satisfactory explanation that a person entering the premises to complain about a van engine happened to be found fumbling in a garbage can containing a bag of marijuana. Because the trial judge was in a unique position to hear and observe the witnesses, we must defer to the trial court’s findings which are reasonable and logical inferences from the facts.

At trial, the court agreed with the Commonwealth’s argument that Boyd’s statement that Appellee was the “money man” was admissible hearsay under KRE 801A(b)(5), which provides that the out-of-court statements by a co-conspirator made during the course and in furtherance of the conspiracy are admissible. However, the Court of Appeals reversed and ruled that admissibility of the hearsay statement under KRE 801A(b)(5) would require some independent evidence of conspiracy between Boyd and Appellee. By using a preponderance of the evidence standard for proof of the conspiracy, the Court of Appeals held de novo that the trial court lacked sufficient evidence. We disagree and reverse.

Though the lower courts have extensively discussed the application of KRE 801A(b)(5), we need not concern ourselves with the Kentucky Rules of Evidence because the facts giving rise to this prosecution arose prior to July 1992, the date of the adoption of the rules. In accordance with KRE 107, the trial court and the Court of Appeals did not need to apply1 KRE 801A(b)(5). Therefore, we must look to prior Kentucky law for guidance. In Section 8.20 of the 1984 edition of The Kentucky Evidence Law Handbook, Dean Lawson states:

(A) General Rule: In both criminal and civil litigation, an extrajudicial statement by a participant in a conspiracy may be introduced as an “admission” against all other participants in that conspiracy if the statement was made in furtherance of the conspiracy.
* % # ‡ &
(B) Preliminary Proof Requirement: An extrajudicial statement is not admissible under this rule (i.e., as a statement by a coconspirator) until after the party who offers the evidence introduces prima facie evidence of a conspiracy between the de-[809]*809clarant and the party against whom the evidence is offered.

Robert G. Lawson, The Kentucky Evidence Law Handbook, § 8.20 (2d Ed.1984).

As applied for many years in Kentucky, this part of the common law exception to the hearsay rule was described as follows:

If a conspiracy be shown to exist, then everything said, done, or written by one of them during the existence of the conspiracy and in the execution or furtherance of the common purpose is admissible in evidence against the others even when they are not present.

Canada v. Commonwealth, 262 Ky. 177, 178, 89 S.W.2d 880, 881 (1936).

The case of Ottley v. Herriford, 161 Ky. 7, 170 S.W. 205 (1914), offers an excellent illustration of a statement made by a party’s coconspirator in furtherance of a conspiracy. Ottley was an action to set aside an election because of an alteration of ballots. There was proof of a conspiracy to affect the election through such an act. The out-of-court statement offered as evidence was one made to a county clerk requesting that a room containing ballots be left unlocked and unattended for an entry by the conspirators. This Court ruled that it was obvious that this statement was made to further the conspiracy.

Before evidence can be introduced under this exception the offering party must introduce proof of a conspiracy. Davis v. Commonwealth, 256 Ky. 423, 76 S.W.2d 259 (1934). Most cases describe the necessary proof as a “prima facie showing of the conspiracy.” Ray v. Commonwealth, 284 S.W.2d 76 (Ky.1955); Shell v. Commonwealth, 245 Ky. 223, 53 S.W.2d 524 (1932). Some decisions have required a somewhat greater burden of preliminary proof: “Of course, proof of the existence of the conspiracy must be introduced as a predicate, and it is held the evidence must be clear.” McIntosh v. Commonwealth, 272 Ky. 159, 161, 113 S.W.2d 1144

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Commonwealth v. King
950 S.W.2d 807 (Kentucky Supreme Court, 1997)

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950 S.W.2d 807, 1997 WL 200430, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-king-ky-1997.