Johnson v. Commonwealth

883 S.W.2d 482, 1994 Ky. LEXIS 53, 1994 WL 221808
CourtKentucky Supreme Court
DecidedMarch 24, 1994
DocketNo. 92-SC-797-MR
StatusPublished
Cited by1 cases

This text of 883 S.W.2d 482 (Johnson v. Commonwealth) 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
Johnson v. Commonwealth, 883 S.W.2d 482, 1994 Ky. LEXIS 53, 1994 WL 221808 (Ky. 1994).

Opinion

LAMBERT, Justice.

In Garner v. Commonwealth, Ky., 645 S.W.2d 705 (1983), this Court held that hearsay testimony based on Department of Cor[483]*483rections records was admissible in a persistent felony offender proceeding to prove the defendant’s age and parole status, matters which were elements of the crime charged. We relied on the regular business entries exception to the hearsay rule1 and Buckler v. Commonwealth, Ky., 541 S.W.2d 935 (1976), for the proposition that despite its hearsay character, evidence from such records has a “circumstantial guarantee of trustworthiness.” 645 S.W.2d at 707. Gamer acknowledged that without a birth certifícate age is always hearsay, but regarded Corrections’ records as sufficiently reliable to permit introduction of such evidence from the records. The issue presented here is whether the Gamer rule should be extended, when the defendant’s identity is not manifest, to include the defendant’s home address, social security number, and parents’ names. Such other issues as have been raised will be identified and addressed hereinafter.

This appeal is from appellant’s 1992 conviction as a persistent felony offender in the first degree. At trial, the Commonwealth contended and evidence was presented that Cholly Bernadine Dickerson, who had been convicted in 1968 for two counts of robbery and sentenced to five years imprisonment on each count, was the same person as Cholly B. Johnson, who had been convicted in 1973 of two counts of robbery and sentenced to consecutive terms of ten years. From the evidence presented, appellant was found guilty and sentenced as a persistent felony offender.

The evidence utilized to establish that appellant, Johnson, was the same person as robbery convict Dickerson was testimony from Department of Corrections records which showed that they had the same date of birth, the same social security number, the same parents, Elcapitola V. Johnson and Jerome Dickerson, and the same home address. If such evidence was properly admitted, the conclusion would be inescapable that Johnson and Dickerson were one and the same person.

Appellant’s 1992 PFO conviction, here under review, has a complex procedural history. It resulted from a re-trial which followed a 1986 trial court order which granted relief pursuant to RCr 11.42. The underlying criminal action arose in 1983 when appellant was convicted of burglary, rape, sodomy and PFO I. These convictions were affirmed by this Court in 1984. However, in 1986, appellant sought relief pursuant to RCr 11.42 claiming ineffective assistance of counsel. With respect to the underlying charges, relief was denied, but the PFO conviction was vacated. The Commonwealth did not appeal from the order vacating the PFO conviction. Thereafter, over appellant’s double jeopardy objection, he was re-tried in 1992 for the PFO charge and it is this conviction which brings us here.

The first issue we must confront is appellant’s double jeopardy claim. He contends that if the improper hearsay evidence from Department of Corrections records had been excluded, the Commonwealth would have been without any proof of one of the required prior felony convictions and the only permissible conviction would have been PFO in the second degree. He attempts to distinguish this case from Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988), and Commonwealth v. Mattingly, Ky., 722 S.W.2d 288 (1986), cert. denied, Mattingly v. Kentucky, 481 U.S. 1015, 107 S.Ct. 1891, 95 L.Ed.2d 498 (1987). We have considered his contentions but are unable to draw a meaningful distinction. This Court and the'Supreme Court of the United States have indulged the view that such error is trial error which results in no double jeopardy bar. Appellant would have us conclude that the Commonwealth would have had no other means of proving that he. and Dickerson were the same person, but Mattingly permits no such speculation.

Hon v. Commonwealth, [Ky., 670 S.W.2d 851 (1984) ], and Hudson v. State of Louisiana, [450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981) ], did not involve the improper admission of evidence which, [484]*484when admitted, was sufficient to sustain the verdict. In each of those cases there was simply no evidence, improperly admitted or otherwise, which was sufficient to sustain the conviction. In this case there was sufficient evidence, albeit improperly admitted, to sustain the verdict. This is a case of a new trial granted because of a trial error, and the result is controlled by our decision in Hobbs v. Commonwealth, [Ky., 655 S.W.2d 472 (1983), cert. denied, Hobbs v. Kentucky, 465 U.S. 1067, 104 S.Ct. 1419, 79 L.Ed.2d 745 (1984)].

722 S.W.2d at 289. Even improperly admitted evidence is sufficient to defeat a motion for directed verdict. A reviewing court or a court considering a collateral attack may not bar retrial on double jeopardy grounds because the evidence was improperly admitted.

Next we consider appellant’s claim for reversal for the violation of Garner v. Commonwealth, supra. At trial and over appellant’s objection, a witness for the Commonwealth was permitted to testify from Department of Corrections records that appellant and Cholly Bemadine Dickerson had the same date of birth, the same social security number, the same parents, and the same home address. This, appellant contends, was in clear violation of our decision in Garner v. Commonwealth which said:

This court would extend the holding of Buckler, supra, to include the duly proven records of the Bureau of Corrections, Department of Justice, to prove two elements required by KRS 532.080, viz., age and parole status. Additionally, the information should be received by testimony from the records and not by introduction of the records themselves, as we would restrict this evidence to proof of age and parole status alone.

645 S.W.2d at 707.

As such, appellant concludes that any hearsay evidence from Corrections records other than his age and proof of parole status is inadmissible entitling him to a reversal.

Our decision in Garner v. Commonwealth was premised on the regular business entries exception to the hearsay rule. We discussed the elements of the exception, the issue of trustworthiness, and noted that the hearsay evidence in question proved elements of the offense. We observed the improbability that any Corrections officials would have actual knowledge of the data and that Corrections officers necessarily relied on their records. We expressed the view that

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Jones v. Commonwealth
907 S.W.2d 783 (Court of Appeals of Kentucky, 1995)

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883 S.W.2d 482, 1994 Ky. LEXIS 53, 1994 WL 221808, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-commonwealth-ky-1994.