Hayes v. Commonwealth

734 S.W.2d 481, 1987 Ky. App. LEXIS 491
CourtCourt of Appeals of Kentucky
DecidedMay 29, 1987
StatusPublished
Cited by1 cases

This text of 734 S.W.2d 481 (Hayes v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hayes v. Commonwealth, 734 S.W.2d 481, 1987 Ky. App. LEXIS 491 (Ky. Ct. App. 1987).

Opinion

COOPER, Judge.

These are related appeals from a judgment convicting the appellant, Earl Steve Hayes, of theft by unlawful taking of property valued over $100, and of being a persistent felony offender in the second degree, and also convicting the appellant, Vicki Lynn Graham (hereinafter Graham), of theft by unlawful taking of property valued over $100. The appellant was sentenced to six years’ imprisonment, and Graham to two years' imprisonment. On appeal, the principal issue is whether the trial court erred in: (1) allowing the Commonwealth to introduce into evidence an “unsa-nitized” statement of Graham during the trial of the appellant; and (2) allowing Graham to be represented by counsel who was in the same law firm as counsel representing the appellant. Reviewing the record below, we reverse and remand on the first issue, and affirm on the second.

The facts relative to this action are as follows: In October of 1985, the appellant and Graham were jointly indicted for theft by unlawful taking of property valued over $100. KRS 514.030 (Class D Felony). Additionally, the appellant was indicted for being a persistent felony offender in the first degree. KRS 532.080. Such indictments arose out of a series of events occurring on August 14, 1985 in Jefferson County-

According to the testimony introduced during the joint trial, the following sequence of events occurred. On Wednesday, August 14, at approximately noon, the [483]*483appellant picked up Carl Ateher and went to the Clean Up Shop to work on an automobile owned by the appellant. Together with Paul Gillisby, they worked on appellant’s vehicle until 5:30 in the afternoon. At this time, Graham arrived at the Clean Up Shop to give the appellant a ride. Subsequent to her arrival, she indicated to Carl Ateher that she needed to borrow some money, and she was willing to sell him some clothes if he were willing to buy them. Specifically, she indicated to Ateher that she had many pairs of new blue jeans in the trunk of her car. Ateher refused the sale.

Subsequently thereafter, both appellant and Graham departed in the latter’s vehicle and arrived at Oxmoor Center. There, they were observed by two store detectives at Shillito-Rikes Department Store both entering the store and leaving it. Specifically, they were observed going to Graham’s vehicle at which time she took something out of her purse and put it in the trunk of her car. They were then observed returning to Shillito-Rikes. Once in the store, they purportedly went to the “University Shop” section of the store where the appellant picked up two pairs of Levi’s, rolled them up, and handed them to Graham who then stuffed them into her purse. They then exited the store and went back to Graham’s vehicle. As soon as Graham opened the trunk of her vehicle, both she and the appellant were arrested.

During the trial, the arresting officers testified that upon looking into the trunk of Graham’s vehicle, they saw numerous pairs of jeans with Shillito-Rikes tags on them. They further testified that upon questioning the appellant, he responded that he was out of work and needed the money. Significantly, one of the arresting officers, J.B. Watts, testified that Graham admitted she and the appellant had taken the jeans in order to resell them to other people. Graham also informed Watts that the Shillito-Rikes jeans which were found in the trunk of her car had come from that specific Shillito-Rikes Store. A notebook, containing a list of the merchandise and the specific sizes of the merchandise was found in Graham’s purse.

Subsequent to an indictment being issued against them — that count of the indictment charging the appellant with being a persistent felony offender in the first degree was reduced to being a persistent felony offender in the second degree — the appellant and Graham were tried jointly. Prior to the time of trial, the appellant’s counsel moved the Court to “sanitize” the statement taken from Graham which specifically implicated the appellant not only in the theft of the two pairs of jeans found in her purse, but also in the theft of other pairs of jeans found in the trunk of her automobile, as well as the total scheme relating to stealing clothes and reselling them. The trial court summarily overruled this motion. Although the appellant admitted during his own testimony that he had assisted Graham in taking the two pairs of jeans in question, he denied any other involvement in any other criminal activity.

Subsequent to the presentation of all the evidence, the jury was instructed on both the felony and misdemeanor crime of theft by unlawful taking. The jury subsequently entered a verdict finding the appellant guilty of theft by unlawful taking of property valued over $100 and assessed his punishment at two years’ imprisonment. As a result of a conviction for being a persistent felony offender in the second degree, his sentence was enhanced to six years. Graham was convicted of theft by unlawful taking over $100 and sentenced to two years’ imprisonment. It is from such judgments that both appellant and Graham now appeal.

On appeal, the appellant raises a single issue. He argues that he was denied his federal and state constitutional right to confront a critical witness as a result of the trial court’s refusal to “sanitize” his co-defendant’s out-of-court statement. Specifically, he argues that as his defense was one of limited involvement extending only to the theft of the two pairs of jeans from the “University Shop” at the Shillito-Rikes Department Store, the introduction of this out-of-court statement implicating him in a general overall criminal [484]*484scheme resulted in a denial of his constitutional rights. Reviewing the record below, we agree.

In a pretrial motion requesting the trial court to “sanitize” Graham’s out-of-court statement, the appellant requested that any references in such statement to “they” be changed to “I”. His argument was premised on the belief that a failure to do so would result in a violation of the mandate of the Court set forth in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The Bruton Court, in delineating the scope of a defendant’s right to confrontation secured by the Sixth Amendment to the United States Constitution, held that such a right is violated if a defendant, in a joint trial with a co-defendant, is inculpated by the confession of a nontestifying co-defendant. Furthermore, that Court held that such a right of confrontation is violated even if the trial court specifically instructs the jury to disregard inadmissible evidence which incriminates the defendant:

[Tjhere are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.... Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefend-ant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial.

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Bluebook (online)
734 S.W.2d 481, 1987 Ky. App. LEXIS 491, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hayes-v-commonwealth-kyctapp-1987.