Moseley v. Commonwealth

960 S.W.2d 460, 1997 Ky. LEXIS 146, 1997 WL 721713

• Court: Kentucky Supreme Court
• Decided: November 20, 1997
• Docket: 96-SC-306-MR
• Status: Published

Opinions

OPINION

COOPER, Justice.

Appellant was convicted in the Daviess Circuit Court of wanton murder and sentenced to confinement in the penitentiary for twenty-eight years. He appeals to this Court as a matter of right. Ky. Const. § 110(2)(b).

On January 31, 1995, Appellant shot and killed Mary Yvett Fuqua Norris with whom he was then cohabiting. His defense was that the shooting was accidental. To prove otherwise, the Commonwealth presented a series of witnesses to testify to statements made to them by the victim before her death. Elizabeth Creamer testified that on the day before her death, the victim told her that Appellant had stabbed her in the leg and had bitten her. Alice Burden testified that a few days prior to her death, the victim told her that Appellant had stabbed her in the leg. Burden also testified that on the day before the victim’s death, she observed red marks on the victim’s leg, and that the victim told her that Appellant had caused the injuries. Burden also testified that in 1994, the victim told her that Appellant had “beaten her up.” Angela Phillips testified that in June or July 1994, the victim told her that Appellant had beaten her up and hit her with a gun, breaking her tooth. Phillips also testified that in August 1994, the victim told her that Appellant had caused bruises on her chest and upper thigh.

During rebuttal, Nadine Ranson and Cathy Evans testified that before her death, the victim told each of them separately that Appellant had beaten her, causing her to limp. Sally Kell testified that the victim told her over the phone in June 1994 that Appellant had hit her. Kell also testified that one week before her death, the victim told her that Appellant had beaten her and dragged her into a car.

Evidence that Appellant had abused his victim on prior occasions was relevant to prove the absence of accident or mistake when he subsequently killed her. KRE 404(b)(1); Smith v. Commonwealth, Ky., 904 S.W.2d 220, 224 (1995). However, to be admissible, the statements must satisfy not only Article IV (Relevancy), but also Article VIII (Hearsay) of the Kentucky Rules of Evidence. Clearly, the witnesses could testify to what they observed insofar as such was relevant. The issue is whether they could testify to what they were told.

The Commonwealth candidly and correctly admits that all of the statements in issue are hearsay, because they are out-of-court statements offered to prove the truth of the matters asserted, i.e., that Appellant physically abused his victim in the past, from which it can be inferred that her subsequent death was not accidental. KRE 801(c). The statements have no legitimate nonhearsay use.

A legitimate nonhearsay use of an out-of-court statement always involves relevancy in the mere utterance of the words comprising the statement (i.e., a logical connection between the utterance of the words and some material element of the case). Absent such relevancy, a claim of nonhear-say must be regarded as nothing more than a pretext for violating the hearsay rule.

R. Lawson, The Kentucky Evidence Law Handbook, § 8.05, p. 361 (3rd ed., Michie, 1993).

The statements do not fall within the category of nonhearsay statements tending to prove state of mind. The victim’s mental state at the time of her death is not an issue in this case. Nor are the statements probative of Appellant’s mental state, since he was not the recipient of the statements. Id. at 364-65.

The Commonwealth posits that the statements fall within the state of mind exception to the hearsay rule. KRE 803(3). However, the statements were offered to prove Appellant’s state of mind and KRE 803(3), by its very language, only applies to prove the state of mind of the declarant, i.e., the victim in this ease.

The following are not excluded by the hearsay rules, even though the declarant is available as a witness:

[[Image here]]

(3) ... A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed....

KRE 803(3) (emphasis added).

Even if the statements had been offered to prove the declarant’s state of mind, they would have been excluded by the “memory or belief” clause of the exception. The purpose of this clause is to codify the ruling contained in the famous United States Supreme Court decision of Shepard v. United States, 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196 (1933).

The evidence in Shepard was a statement by an alleged victim of homicide accusing the defendant of taking steps to bring about her death — “Dr. Shepard has poisoned me.” The trial judge admitted the statement as a dying declaration, without adequate proof that it had been made under consciousness of impending death. The Court of Appeals found error in the trial court’s reasoning below but not in its ruling on admissibilify; the statement, said the Court, was admissible to show the state of mind of the declarant. The Supreme Court of the United States disagreed, ruling that the state of mind exception may not be used to admit into evidence a statement of belief or memory for the purpose of proving the act, event, or occurrence that generated the belief or memory. In its opinion, the Court provided the following explanation:

Declarations of intention, easting light upon the future, have been sharply distinguished from declarations of memory, pointing backwards to the past. There would be an end, or nearly that, to the rule against hearsay if the distinction were ignored.

Lawson, supra, § 8.50, p. 437, quoting from Shepard v. United States, supra, 290 U.S. at 105, 54 S.Ct. at 26, 78 L.Ed. at 202.

The hearsay rule has its origin in the Confrontation Clause of the Sixth Amendment. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); see generally, Lawson, supra, § 8.00, pp. 354-57. Thus, we are bound by Shepard v. United States, supra, as embodied in KRE 803(3). Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965) (Sixth Amendment right of an accused to confront the witnesses against him made obligatory on the states by the Fourteenth Amendment).

Since the victim’s out-of-court statements were hearsay and do not fall within any applicable exception to the hearsay rule, this case must be reversed for a new trial. Because the case must be retried, we will address Appellant’s other claim of error.

Detective Keith Cain was permitted to testify that Appellant gave four inconsistent statements as to how the shooting occurred. In fact, Appellant did not make the statements to Cain, but to four separate members of the Mosleyville Fire Department, who arrived on the scene shortly after the shooting. The inconsistent statements were relayed to Cain by one of the firemen and by an investigating police officer who did not testify. Appellant argues that Cain’s testimony amounted to “investigative hearsay,” which we condemned in Sanborn v. Commonwealth, Ky., 754 S.W.2d 534 (1988). However, unlike Sanborn, in which the out-of-court statements were made by non-testifying witnesses, the persons to whom the statements were made in this case testified to the statements and were subject to cross-examination. The statements were properly admitted as admissions under KRE 801A(b)(l). However, Cain’s repetition of the statements was hearsay and should be excluded upon retrial.

For the reasons stated in this opinion, the judgment of conviction and the sentence imposed upon Appellant are reversed and this case is remanded to the Daviess Circuit Court for a new trial.

STEPHENS, C.J., and LAMBERT and STUMBO, JJ., concur. JOHNSTONE, J., dissents by separate opinion, with GRAVES and WINTERSHEIMER, JJ., joining that dissent.