LaMastus v. Commonwealth

878 S.W.2d 32, 1994 Ky. App. LEXIS 74, 1994 WL 276742
CourtCourt of Appeals of Kentucky
DecidedJune 24, 1994
DocketNo. 92-CA-2884-MR
StatusPublished
Cited by5 cases

This text of 878 S.W.2d 32 (LaMastus 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
LaMastus v. Commonwealth, 878 S.W.2d 32, 1994 Ky. App. LEXIS 74, 1994 WL 276742 (Ky. Ct. App. 1994).

Opinions

JOHNSTONE, Judge.

Rigdon Leslie LaMastus appeals from a judgment of the Warren Circuit Court convicting him of fraudulent use of a bank debit card. He was sentenced to one year probated for three years. After reviewing the arguments of the parties and the record, we must reverse the conviction and remand for a new trial.

Minnie Taft offered to let LaMastus move into her home in the spring of 1991, because he had no other place to live. Taft gave LaMastus his own bedroom and did not ask LaMastus to pay rent or expenses. However, Taft’s husband was bedridden, and La-Mastus occasionally helped Mrs. Taft to care for her husband and to do grocery shopping.

To avoid overdraft problems, Taft got a bank debit card to pay her bills. She allowed LaMastus to use the card for grocery shopping. Taft testified that LaMastus refused to return the card upon her request, but LaMastus testified that he gave her the card when she asked for its return. Apparently, LaMastus charged $568.72 to the card before Taft got it back from him. She informed a social worker from the Cabinet for Human Resources, and the social worker recommended that Taft call the police. Mrs. Taft did so, and LaMastus was arrested for fraudulent use of a bank card and theft of a ring belonging to Mr. Taft.

A jury found LaMastus guilty of the fraudulent use charge and not guilty on the theft charge. LaMastus now appeals on the grounds that the trial court erred by permitting the introduction of “investigative hearsay” by a police officer, and by allowing the prosecutor to introduce impermissible character evidence of both Mrs. Taft and LaMas-tus.

LaMastus initially contends that the testimony of Police Officer Brown, the Commonwealth’s first witness, constituted extensive hearsay and prejudiced the jury. During trial, Brown started to relate what Mrs. Taft had told him about the offense. LaMas-tus’ counsel objected on hearsay grounds, and the trial judge sustained the objection. Brown then continued to explain the case facts, but soon testified again concerning Mrs. Taft’s statements to him. LaMastus’ counsel again objected, but the judge overruled the objection for the purpose of allowing Brown “to relate the nature of the complaint” to the jury. The judge then allowed Brown to discuss what Mrs. Taft had reported to him during the investigation leading to LaMastus’ arrest, culminating with Brown stating, “She (pause) at that point in time, and with concern for her safety and the safety of her husband, I obtained a district court warrant ... [for LaMastus’ arrest].”

[34]*34LaMastus argues that Brown’s testimony constituted “investigative hearsay,” the introduction of which has been repeatedly condemned by Kentucky courts. The Commonwealth counters that Brown merely testified as to what Taft later repeated. Because Taft testified and was available for crossexamination, the Commonwealth claims that any error was harmless, citing Carter v. Commonwealth, Ky., 782 S.W.2d 597, (1989) cert. denied, 497 U.S. 1029, 110 S.Ct. 3282, 111 L.Ed.2d 791 (1990). We disagree.

Our Supreme Court dealt with a similar situation in Bussey v. Commonwealth, Ky., 797 S.W.2d 483 (1990). In Bussey, the victim of sexual abuse testified concerning his recollection of the offense. Then, during the Commonwealth’s case in chief, four police officers were permitted to repeat the victim’s version of the events. Id. at 484. Additionally, the trial court allowed one of the officers to testify as to his conclusion of whether the events had transpired as the victim had described. The officer was permitted to state, ‘Tes. I came to the conclusion that there had to have been some type of misconduct or I would not have received a complaint.” Bussey, 797 S.W.2d at 485.

In reversing the Bussey conviction, the Supreme Court cited Sanborn v. Commonwealth, Ky., 754 S.W.2d 534 (1988), for the rule that a police officer may testify about information furnished to him only where it tends to explain the action that was taken by the police officer and not to prove the facts told. Bussey, 797 S.W.2d at 486 (quoting Sanborn, swpra, at 541). The Bussey Court stated:

The only witnesses to the occurrence of this crime were appellant and the Bussey brothers. To arrive at a conviction, it was necessary for the jury to believe the victim and disbelieve appellant. As such, the jury was required to determine the credibility of all fact witnesses. This process was flawed when four law enforcement witnesses were permitted to bolster the victim’s testimony by repeating what he had told them.

Bussey, 797 S.W.2d at 485. Concerning the police officer’s conclusion, the Court continued:

There is little doubt that Officer Shirley’s statement amounted to a declaration that he believed the story told by the victim. In a number of cases, this has been held reversible error. [Citations omitted].
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In this case, the police officer testified that he believed the victim’s report of the incident and determined on this basis to initiate further investigation by telling his captain....
This Court has firmly rejected the admission of hearsay evidence under the so-called “investigative hearsay exception.” Trial courts and counsel should understand that such evidence is no less hearsay because it comes from a police officer and that any conviction obtained through the use of such evidence is in jeopardy of reversal.

Id. at 485-86.

In the case at bar, Officer Brown was permitted to testify concerning the facts of the case as told to him by the victim, Mrs. Taft. He then stated to the jury that, based upon those facts, he obtained an arrest warrant for LaMastus because of his concern for the Tafts’ safety. Officer Brown’s actions were not an issue in this case. Cf. Sanborn, 754 S.W.2d at 541. We believe that, according to Bussey, supra, Officer Brown’s testimony improperly lent credence to Mrs. Taft’s testimony and unfairly prejudiced the jury in her favor.

Furthermore, Carter, 782 S.W.2d 597, cited by the Commonwealth for the proposition that such testimony is harmless, is distinguishable from this case by the fact that the statements made in Carter did not directly name or implicate the defendant. Carter, 782 S.W.2d at 600. That is not the case here. Finally, the Commonwealth does not argue, nor do we find, that Brown’s testimony qualified as an exception to the hearsay rule. See KRE 803-805. Consequently, we must reverse the conviction by the trial court.

LaMastus also argues that the trial court erred by allowing the prosecutor to introduce impermissible character evidence [35]*35of both LaMastus and Taft. Specifically, LaMastus claims that the Commonwealth improperly bolstered Taft’s credibility by introducing on rebuttal several witnesses to testify to her reputation for truthfulness. La-Mastus argues that this violated KRE 404(a) because Taft’s reputation for truthfulness had not been attacked.

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Cite This Page — Counsel Stack

Bluebook (online)
878 S.W.2d 32, 1994 Ky. App. LEXIS 74, 1994 WL 276742, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lamastus-v-commonwealth-kyctapp-1994.