RENDERED: MARCH 25, 2021 TO BE PUBLISHED
Supreme Court of Kentucky 2019-SC-0738-MR
RICK AARON FISHER APPELLANT
ON APPEAL FROM HARDIN CIRCUIT COURT HONORABLE KELLY MARK EASTON, JUDGE V. NO. 18-CR-00576
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
AFFIRMING
Rick Aaron Fisher and his co-defendant, Lisa Harvey, tried jointly, were
convicted by a circuit court jury of complicity to murder and tampering with
physical evidence. Fisher was sentenced to thirty years’ imprisonment
consistent with the jury’s recommendation, and he now appeals the resulting
judgment as a matter of right.1 We affirm the judgment.
The central issue we address is whether the trial court erred in violation
of Fisher’s Confrontation Clause rights by admitting incriminating hearsay
offered against Fisher consisting of unredacted out-of-court statements in
which co-defendant Harvey incriminated herself and Fisher to a cellmate who
testified at trial. The trial court ruled the Confrontation Clause was not
implicated because Harvey’s out-of-court statements to her cellmate were not
1 Ky. Const. § 110(2)(b). testimonial under Crawford v. Washington and sufficient corroboration
otherwise supported admissibility of the out-of-court statements under a
hearsay exception. We find no error in the trial court’s ruling on this issue.
On a second issue, we find no error in the trial court’s admitting a jail
phone call of Fisher’s. Finally, we find harmless error in the Commonwealth’s
Attorney’s improperly injecting her own testimony into the trial during
questioning.
I. FACTUAL BACKGROUND
Investigators found Andrew Folena’s decomposing body beaten and
buried in the wooded area bordering a cornfield not far behind his house.
Folena had returned home to find that his fiancée, Lisa Harvey, and two men,
Fisher and Joe Goodman, had been staying in his house while he was away.
Harvey had ongoing sexual relations with Fisher and Goodman, and the three
apparently used methamphetamines together in Folena’s house while he was
away.
Goodman testified at Fisher and Harvey’s joint trial that earlier on the
day of the murder, Fisher and Harvey stated they would kill Folena, although
Goodman did not take them seriously. Goodman testified that later that night
he heard from the basement what must have been Folena trying to come
through the front door of the house. Unable to get into the house that way,
Folena walked around to the back of the house. After hiding in the basement
for a moment, Goodman heard a commotion and looked outside to the
backyard to see Fisher bludgeoning Folena with a baseball bat and Harvey
2 positioned on top of Folena strangling him. Goodman quickly packed his
things, called his ex-girlfriend to tell her to alert the police, and ran out into the
cornfield. Goodman stayed there for, in his estimate, about twenty minutes,
unsure of what to do. Before long Fisher found Goodman and sent him back to
the house. Several days later, Goodman’s ex-girlfriend finally called law
enforcement officers, who performed a welfare check at the Folena residence.
Fisher, Harvey, and Goodman were there when the officers arrived.
During a search, the officers found a bloody baseball
bat, a metal hook tool, and work gloves. Outside, they found a fresh trail
leading to the back of the property where they found a wheelbarrow, bleach
bottles, a shovel, tarps, and recently disturbed earth. A cadaver-dog found
Folena’s body in the disturbed earth. A medical examiner determined the
cause of death was a combination of blunt-force trauma and strangulation.
Fisher and Harvey were charged with Folena’s murder. While Goodman’s DNA
was found on several items of interest in the house and near the crime scene,
he was not charged.
II. STANDARD OF REVIEW
Fisher has preserved all the issues he now raises on appeal. Preserved
claims of error are subject to our normal standard of review.2 Under this
standard, we first determine if there is an error, and if we find error, we then
2 Ordway v. Commonwealth, 391 S.W.3d 762, 774 (Ky. 2013).
3 determine whether it negatively affected the substantial rights of the parties.3
If the error had no such effect, we will regard it as harmless and affirm.4 If
such an error has constitutional implications, we will affirm only if the error
was harmless beyond a reasonable doubt.5
III. ANALYSIS
A. Admitting Harvey’s out-of-court statements against Fisher did not violate the Confrontation Clause or the Rule Against Hearsay.
Neither of the defendants testified at their joint trial, but three of their
former cell-mates did. If all three cell-mates are believed, Fisher and Harvey
independently confessed to their cell-mates their own participation in the
murder. Harvey’s cell-mate, Tonya Dean, testified that on an occasion when
she and Harvey were together in their cell, Harvey described Folena’s murder,
stating that two men beat Folena while or before she, Harvey, strangled him.
Fisher’s cell-mates testified that Fisher told them essentially the same thing,
except that Fisher’s account did not involve another man.6
Fisher claims the trial court erred in admitting Harvey’s hearsay
statement without redaction in violation of the Confrontation Clause of the
Sixth Amendment of the United States Constitution. During conference at trial
3 Brafman v. Commonwealth, 612 S.W.3d 850, 857 (Ky. 2020) (citing Allen v. Commonwealth, 395 S.W.3d 451, 467 (Ky. 2013)). See Rules of Criminal Procedure (RCr) 9.24. 4 See RCr 9.24. 5 Nunn v. Commonwealth, 461 S.W.3d 741, 750 (Ky. 2015) (citing Winstead v.
Commonwealth, 283 S.W.3d 678, 689 n.1 (Ky. 2009)). See Crossland v. Commonwealth, 291 S.W.3d 223, 231 (Ky. 2009). 6 This discrepancy as to the number of men involved is never truly explained.
4 and in a thorough post-trial order, the trial court carefully analyzed this issue,
ultimately concluding that admitting Harvey’s statement against Fisher did not
violate Fisher’s Confrontation right. We find it worthwhile now to clarify the
standards for admitting hearsay against a criminal defendant under the
Confrontation Clause.
1. The Confrontation Clause applies only to testimonial hearsay statements.
As it pertains to hearsay that incriminates an accused in a criminal trial,
the right of the accused under the Sixth Amendment to confront the witness
against him applies only to bar those statements that can be considered
“testimony” against the accused. This approach to the Confrontation right was
handed down in the landmark case Crawford v. Washington.7 Crawford shifted
the constitutional focus from the statement’s apparent reliability to an
emphasis on the context in and purpose for which the statement was originally
made.8 Crawford has since assumed an important role in Confrontation
Clause precedent, a body of authority that includes cases like Bruton and
Richardson, discussed below.9
In Crawford, the Supreme Court of the United States held that,
independently and separately from the rules of evidence,10 “the Confrontation
7 Crawford v. Washington, 541 U.S. 36 (2004). 8 See id. at 68–69. 9 Rodgers v. Commonwealth, 285 S.W.3d 740, 746 (Ky. 2009). 10 Crawford, at 51, 62 (2004) (“This [previous] focus [on the law of Evidence]
also suggests that not all hearsay implicates the Sixth Amendment's core concerns. An off-hand, overheard remark might be unreliable evidence and thus a good candidate for exclusion under hearsay rules, but it bears little resemblance to the 5 Clause forbids admission of all testimonial hearsay statements against a
defendant at a criminal trial unless the witness is unavailable and the
defendant has had a prior opportunity for cross-examination.”11 The central
focus of Crawford was the key term testimonial as it pertains to hearsay
statements offered against a criminal defendant.12 The Court elaborated on
what this term meant: “The text of the Confrontation Clause . . . applies to
‘witnesses’ against the accused—in other words, those who ‘bear testimony.’
‘Testimony,’ in turn, is typically ‘[a] solemn declaration or affirmation made for
the purpose of establishing or proving some fact.’”13 It has since become clear
that whether a statement is testimonial is a declarant-centric inquiry.14
Under Bruton v. United States,15 a trial court may not admit a non-
testifying co-defendant’s testimonial out-of-court statement as evidence against
the accused in their joint trial.16 “In the context of a joint trial, therefore, ‘the
pretrial confession of one [defendant] cannot be admitted against the other
unless the confessing defendant takes the stand.’”17 Bruton simply extends to
civil-law abuses the Confrontation Clause targeted. On the other hand, ex parte examinations might sometimes be admissible under modern hearsay rules, but the Framers certainly would not have condoned them.”). 11Bray v. Commonwealth, 177 S.W.3d 741, 744 (Ky. 2005), overruled on other grounds by Padgett v. Commonwealth, 312 S.W.3d 336 (Ky. 2010) (citing Crawford, at 68) (emphasis added). 12 See id. 13 Id. at 745 (quoting Crawford, at 51). 14 See United States v. Johnson, 581 F.3d 320, 325 (6th Cir. 2009). 15 391 U.S. 123 (1968). 16 See id. at 125–26. 17 Rodgers, at 745–46.
6 joint trials Crawford’s prohibition against out-of-court testimony, protecting the
accused in a joint trial from the incrimination of his non-testifying co-
defendants’ hearsay statements.18
Richardson v. Marsh19 further complements Bruton in another analytical
layer, in that same specific circumstance of the joint trial.20 Richardson held
that redaction of a statement to omit reference to the accused may suffice for
purposes of Bruton and, therefore, the protections of the Confrontation
Clause.21
Before proceeding, the doctrinal connection among Crawford, Bruton,
and Richardson bears discussion because each plays a relevant part in
Confrontation Clause precedent pertaining to hearsay. As stated above, the
Confrontation Clause addresses out-of-court statements, utterances, and
assertions against the accused that are testimonial,22 a concept derived from
Crawford and its progeny. “Crawford’s progeny” includes
18 Although Bruton preceded Crawford by over thirty years, the two cases do not establish independent “lines,” or branches, of Confrontation Clause precedent. Rather, Bruton now extends Crawford’s principles to the joint trial scenario. Bruton has always effectively concerned the specific situation in which a statement is offered, while Crawford addresses the type or nature of the statement itself. 19 481 U.S. 200 (1987); Rodgers, at 746. 20See Richardson, at 207–08; Commonwealth v. Stone, 291 S.W.3d 696, 700 (Ky. 2009). 21 See Rodgers, at 746 (citing Gray v. Maryland, 523 U.S. 185 (1998)). 22 See Johnson, 581 F.3d at 325–26 (“[T]he Supreme Court answered this question and explained that the Confrontation Clause has no bearing on nontestimonial out-of-court statements.”) (citing Davis v. Washington, 547 U.S. 813, 825 (2006) and Whorton v. Bockting, 549 U.S. 406, 420 (2007)). See also Miller v. Commonwealth, 2008 WL 466138 at *13 (Ky. Feb. 21, 2008) (“Under Davis, however, the Confrontation Clause is not implicated by nontestimonial hearsay statements, the admissibility of which is governed solely by the rules of 7 Davis v. Washington,23 Michigan v. Bryant,24 and persuasive Sixth Circuit
authority based on Crawford. The role of Crawford and its progeny primarily
has been to elaborate on what constitutes testimony for purposes of the
Confrontation Clause.25 Bruton merely extends that same Crawford-oriented
protection against testimonial hearsay to the accused in a joint trial. And
finally, Richardson, specifically invoked by Fisher, applies to the very same
hearsay statements to which Bruton would apply.26 So if a co-defendant’s out-
of-court statement is not testimonial, Crawford, Bruton, or Richardson, do not
bar potentially admissible statements.27
evidence.”) (emphasis added) (citing United States v. Arnold, 486 F.3d 177 (6th Cir. 2007)); Leslie W. Abramson, 9 Ky. Prac. Crim. Prac. & Proc. § 15:39, n. 1 (hereafter “Abramson”) (“For a statement to be considered under Bruton, the statement must be testimonial under Crawford.”) (citing Johnson, supra), § 27:232 (“[Under the Sixth Amendment], a nontestimonial out-of-court statement may be admissible at trial regardless of either the declarant's availability to testify at trial or any prior opportunity to cross-examine the declarant.”) (emphasis added). 23 547 U.S. 813 (2006). 24 562 U.S. 344 (2011). 25See Stone, 291 S.W.3d at 699–700; Robert G. Lawson, The Kentucky Evidence Law Handbook, § 8.00[2][a] (LexisNexis Matthew Bender) (2020) (hereafter “Lawson”) (“The [Crawford] Court narrowed the reach of the Clause by limiting its application to ‘testimonial statements’ . . . .”). 26The Richardson Court stated that it was addressing Bruton joint-trial situations, a notably specific circumstance: “In Bruton, however, we recognized a narrow exception to this principle: We held that a defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating confession of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant.” Richardson, at 207 (emphasis added). 27 See Johnson, at 325–26; Abramson, § 15.39, n. 1.
8 Our jurisprudence has been confused in this area. At least one
unpublished case out of this Court, Miller v. Commonwealth,28 cited by the trial
court in its order, has held clearly and correctly that “the Confrontation Clause
is not implicated by nontestimonial hearsay statements, the admissibility of
which is governed solely by the rules of evidence.”29 This conclusion finds
support in authoritative caselaw from the Sixth Circuit, stating effectively the
same thing, cases like Johnson v. United States30 and United States v. Arnold.31
But two recent cases from this Court, Maiden v. Commonwealth32 and Hatfield
v. Commonwealth,33 both unpublished companion cases, appear at odds with
Miller and the weight of authority. These cases suggest there may be a
remaining Bruton-Richardson issue to resolve even if the statement is veritably
nontestimonial.34 To the contrary, the weight of authority cited above and
below holds that Bruton-Richardson issues are present only where the hearsay
statement in question is testimonial per Crawford and, as a corollary, not
where the statement is nontestimonial.
28 2008 WL 466138 (Ky. Feb. 21, 2008). 29 Id. at *13. 30 581 F.3d 320, 325–26. 31 486 F.3d 177, 192–93. 32 2017 WL 1538277 (Ky. Apr. 27, 2017). 33 2017 WL 1538507 (Ky. Apr. 27, 2017). 34 Maiden, at *5 and Hatflield, at *3.
9 2. Harvey’s out-of-court statements were not testimonial, so they were not rendered inadmissible under the Confrontation Clause.
In the present case, Harvey made voluntary, unprompted out-of-court
statements to her cellmate, Dean. Those statements were later offered at trial
as evidence against Fisher, but Harvey did not testify at trial and was at no
point subject to Fisher’s cross-examination. Harvey’s statements incriminated
herself and arguably Fisher by implication.35 For the sake of thoroughness and
fairness to Fisher, we will assume Harvey’s statement, as retold by Dean,
effectively asserts Fisher was one of those two men for purposes of Bruton-
Richardson. Again, though, only if these statements were testimonial under
Crawford was the trial court obligated to exclude the statements under Bruton
or redact them under Richardson.36
The Crawford conception of testimony is instructive. The classic,
archetypal circumstance that concerns us here is that which was seen in
England during the political trials of the 16th and 17th centuries.37 At the
time, it was not uncommon for the English prosecutor to offer a purported
witness’s statement against the accused, a statement uttered somewhere
beyond the walls of the courtroom, often ex parte.38 Of course, these witnesses
would at times be unavailable for cross-examination at trial, leaving both the
35 Dean said only that Harvey referred to “two other gentlemen” involved in the beating. 36 See Bray, at 745; Lawson, at § 8.00[2][a]. 37 See Crawford, at 44. 38 See id.
10 party offering the statement and the purported declarant completely
unaccountable for the substance or basis of his accusation. Still the English
court might not honor the common-law tradition of bringing the accusing
witness to face the accused in court,39 admitting the statement for
consideration without adversarial examination by the accused.40 Perhaps the
most famous instance of this practice was the admission of Lord Cobham’s ex
parte accusation of treason against Sir Walter Raleigh.41 The Crawford Court
recognized this evil, plain in historical context, as among several abusive
prosecutorial practices the Framers intended the Confrontation Clause to
remedy.42
These concerns continue to guide our application today. What
constitutes a testimonial statement is an objective circumstantial inquiry
viewed from the declarant’s perspective, a decidedly declarant-centric inquiry.43
The United States Supreme Court clarified in Davis that “it is in the final
analysis the declarant's statements, not the interrogator's questions, that the
39See id. (citing 3 W. Blackstone, Commentaries on the Laws of England 373– 374 (1768)). 40 Id. 41 See id, at 44–45 (citing Raleigh’s Case, 2 How. St. Tr. 1, 15–16) (“[Expecting Cobham might recant his accusation,] Raleigh demanded that the judges call [Cobham] to appear, arguing that ‘[t]he Proof of the Common Law is by witness and jury: let Cobham be here, let him speak it. Call my accuser before my face. . . .’ The judges refused,[] and, despite Raleigh's protestations that he was being tried ‘by the Spanish Inquisition,’[] the jury convicted, and Raleigh was sentenced to death.’”). 42 See id, at 50–52. 43 Johnson, 581 F.3d at 325 (“In determining whether statements are testimonial, we ask whether the declarant intended to bear testimony against the accused.”) (citing United States v. Cromer, 389 F.3d 662, 675 (6th Cir. 2004)) (internal quotations omitted, and emphasis added).
11 Confrontation Clause requires us to evaluate.”44 Circumstances tending to
indicate a statement is testimonial include when the statement describes a
past event, as opposed to an immediate, ongoing event like an emergency;45 the
apparent, primary purpose of the interrogation or conversation is to use the
statements obtained as evidence in a prospective criminal prosecution;46 and
particularly where the interrogation, if the exchange can be characterized that
way, is formally arranged or conducted,47 especially by an officer or agent of
the state intending to elicit statements as evidence.48
44 Rankins v. Commonwealth, 237 S.W.3d 128, 131 (Ky. 2007) (citing Davis, at 822, n. 1). 45 Id. 46 Crawford, at 51 (“Various formulations of ‘testimonial’ statements exist: ‘ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial interrogations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be use prosecutorially . . . .”) (emphasis added). 47 See Crawford, at 68 (“Whatever else the term [‘testimonial’] covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial.”). 48 Crawford, at 52, 68 (“Statements taken by police officers in the course of interrogations are also testimonial under even a narrow standard. Police interrogations bear a striking resemblance to examinations by justices of the peace in England . . . . [T]he term [‘testimonial’] applies to . . . police interrogations”.). A distinction worth mentioning on this point: Statements obtained through routine interrogations by police are usually testimonial but should not be conflated with statements obtained through a confidential informant, even an informant working closely with police. Again, that police are involved at all is a factor for consideration, but the focus is whether a person in the declarant’s position would have objectively figured whom he was speaking to and for what purpose. Incriminating statements to an undercover informant are still generally not testimonial, even where police are involved closely, at least where a reasonable person in the declarant’s position would have been unaware of the informant’s role in an investigation. E.g., Johnson, at 325 (“Because [the declarant] did not know that his statements were being recorded and because it is clear that he did not anticipate them being used in a criminal proceeding against Johnson, they are not testimonial, and the Confrontation Clause does not apply.”). See United States v. Dale, 614 F.3d 942, 956 (8th Cir. 2010) (citing wider adoption in federal sister circuits in United States v. 12 Again, before proceeding, we must address and overrule the unpublished
Kentucky authority inconsistent with the above declarant-centric approach. In
particular, Maiden and Hatfield, cited above, which suggest that even if a
statement is not testimonial from the declarant’s perspective, such statements
may somehow become testimonial “in every relevant respect” when the
nontestimonial statement is later repeated in the testimony of the receiving
witness at trial.49 Whether a statement is testimonial depends solely on the
circumstances of the declarant himself at the time he made the statement, not
whether a person who heard the statement eventually repeats under solemn
oath what she allegedly heard the declarant say.
Harvey’s statements in the present case were not testimonial under
Crawford. Harvey’s statements to Dean were an account of past events, which
may tend to indicate the statement was testimonial.50 But Harvey’s statements
were not originally made to or at the behest of an officer’s interrogation. That
the state did not prompt or elicit the statement, although not dispositive,
strongly indicates Harvey was not bearing testimony. Harvey apparently made
the incriminating statement in what objectively seemed to be a private
conversation. And the trial court was correct when it concluded that, as a
general matter, conversations between cell-mates will not be testimonial under
Udeozor, 515 F.3d 260, 269–70 (4th Cir. 2008); United States v. Watson, 525 F.3d 583, 589 (7th Cir. 2008); United States v. Underwood, 446 F.3d 1340, 1347–48 (11th Cir. 2006); United States v. Hendricks, 395 F.3d 173, 182–84 (3d Cir. 2005); United States v. Saget, 377 F.3d 223, 229–30 (2d Cir. 2004)). 49 Maiden, at *5 and Hatfield, at *3. 50 See Davis, at 822; Rankins, at 131.
13 the Confrontation Clause. Consistent with federal authority, jailhouse
conversations between cell-mates are not typically attended by the above-listed
circumstances that indicate a statement is testimonial.51
Since Harvey’s statements were not testimonial, the statements did not
implicate the Confrontation Clause under Crawford or Bruton.52 Absent a true
Bruton issue, the trial court was not required to exclude or redact Harvey’s
statements under Richardson as Fisher claims. The trial court correctly ruled
the admission did not violate the Confrontation Clause.
3. Harvey’s out-of-court statement is otherwise admissible under Kentucky Rule of Evidence (KRE) 804(b)(3) as a statement against penal interest.
Having resolved the constitutional issue, we turn to the remaining
evidentiary hearsay issue. As with the Confrontation Clause issue, the trial
court’s order and disposition on the hearsay issue followed astute reasoning.53
We accept and start with the circuit court’s first premise that Harvey’s
statement implicated her in Folena’s murder, rendering it admissible as an
admission of a party per KRE 801(b)(1). Then, to the extent the statement also
asserts Harvey was complicit in the murder with Fisher under KRS 502.020, it
51 E.g., Davis, 547 U.S. at 825 (citing Dutton v. Evans, 400 U.S. 74, 87–89 (1970) (plurality), as a case involving “clearly nontestimonial” “statements from one prisoner to another”). See also Johnson, 581 F.3d 320 (6th Cir. 2009); United States v. Pelletier, 666 F.3d 1 (1st Cir. 2011). 52See Johnson, at 326 (citing Davis, 547 U.S. at 825; Whorton v. Bockting, 549 U.S. 406, 420 (2007)). 53We note that Fisher raises only the Constitutional issue under the Confrontation Clause and does not seriously dispute the admissibility of the hearsay statement under the following exceptions.
14 is also admissible as a statement against penal interest under KRE 804(b)(3).
This latter conclusion is more closely connected with the nature of the
Commonwealth’s specific theory—that of complicity—because evidence of
Fisher’s involvement was necessarily proof of Harvey’s complicity.
Hearsay is an out-of-court statement offered to prove the truth of the
matter asserted.54 Sitting in their jail cell, Harvey asserted to Dean that two
men beat Folena, contributing to his death. The Commonwealth sought to
offer these statements, not just as evidence against Harvey, but also to prove
Fisher was one of the men with whom Harvey admitted she was complicit. So
to the extent Harvey’s statement is an assertion that Harvey and Fisher were
complicit with one another, the statement is hearsay.
Hearsay is inadmissible unless it is excepted under the Kentucky Rules of
Evidence.55 The rules contain an exception for statements made against the
declarant’s interest under KRE 804(b)(3). The exception applies where the
declarant is unavailable to testify at trial and, where the statement exposes the
declarant to criminal liability, sufficient corroboration of the statement clearly
indicates its trustworthiness.56 The declarant may be unavailable to testify for
purposes of KRE 804(b)(3) when she invokes her Fifth Amendment right to
remain silent and avoid self-incrimination.57
54 KRE 801. 55 KRE 802. 56 KRE 804(b)(3). 57 KRE 804(a)(1).
15 It was clearly against Harvey’s penal interest to admit her own
involvement in Folena’s murder, i.e., it was directly against her penal interest
to admit complicity. And Harvey was unavailable to testify at trial, having
invoked her right to avoid self-incrimination. The trial court found correctly
within its discretion that the statements were corroborated by Goodman’s
testimony and by the totality of forensic and other circumstantial evidence.
Particularly corroborating was the fundamental consistency between Fisher’s
and Harvey’s independent accounts to their respective cell-mates. Harvey’s
statement fell within the exception of KRE 804(b)(3). This was not error for the
trial court to admit Harvey’s unredacted statements as evidence against Fisher.
B. Appellant’s phone call from jail was not inadmissible hearsay.
We review the admission of this evidence for abuse of discretion.58 A trial
court abuses its discretion when its decision was arbitrary, unreasonable,
unfair, or unsupported by sound legal principles.59
The trial court admitted a jail phone call between Fisher and an
unidentified woman. In the call, the woman tells Fisher that “Jayden” “didn’t
see nothing” but “he heard it out of the horse’s mouth.” Following the phone
call, Detective Priddy went to Jayden Grissom, who was Fisher’s former cell-
mate and later a witness for the Commonwealth. The Commonwealth argued
the recording was offered to show why Priddy sought out Grissom. The trial
court determined the phone call contained hearsay, even before hearing it, but
58 Parton v. Commonwealth, 918 S.W.2d 219, 222 (Ky. 1996). 59 Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).
16 allowed the Commonwealth to play the recording under the trial court’s
admonition to the jury that it was to be used only to show why Detective Priddy
went to Grissom as part of her investigation.
The review here is brief because contrary to Fisher’s claim on appeal, this
phone call did not contain hearsay. While the call contained statements or,
more aptly, allusions to statements of “Jayden’s” made out-of-court, the
woman relayed no relevant assertion of fact, much less any that implicated
Fisher.60 Perhaps if the woman had elaborated on what Jayden had
purportedly heard “out of the horse’s mouth,” maybe there would be a hearsay
issue. But having found these statements were not hearsay and satisfied that
they were admitted for the valid purpose of showing Detective Priddy’s course
of investigation, the trial court did not err in admitting the phone call.
C. The Commonwealth’s Attorney’s questioning techniques were improper but do not warrant reversal.
Fisher claims the Commonwealth’s Attorney used improper questioning
techniques at trial while questioning Detective Priddy, allowing the prosecutor
to testify vicariously through this witness. Fisher bases his claim on Kentucky
60 See KRE 801(c) (“‘Hearsay’ is a statement, [made out-of-court], offered to prove the matter asserted.”) (emphasis added); Harris v. Commonwealth, 384 S.W.3d 117, 125–26 (Ky. 2012) (“[A]n ‘assertion’ is a statement or expression of a fact, condition or opinion.”).
17 Rules of Professional Conduct (SCR) 3.130-3.4(e)61 and -3.7,62 both rules
against counsel offering testimony at trial, and KRE 60363 and KRE 802.64
Fisher argues the prosecutor’s questioning ultimately constituted prosecutorial
misconduct warranting reversal. Because errors of this sort implicate
constitutional rights, if it was indeed error, we may only affirm if we conclude
this alleged error was harmless beyond a reasonable doubt.65
For context, the defense had just cast doubt on whether Fisher’s former
cell-mate, Jayden Grissom, had learned the details of the crime from Fisher
himself, i.e., “out of the horse’s mouth,” or if he had learned this by perusing
Fisher’s discovery materials while Fisher was away from the cell. The
Commonwealth’s Attorney set out to prove that Grissom learned the details of
the crime directly from Fisher himself. And she meant to do this by having
Detective Priddy testify about the Commonwealth’s Attorney’s discovery log, a
document showing the discovery production timeline. She hoped to prove that
Grissom could not have had access to that information through Fisher’s
61“A lawyer shall not . . . assert personal knowledge of facts in issue except when testifying as a witness or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.” 62 In general, “[a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness. . . .” 63 “Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so.” 64 “Hearsay is not admissible except as provided by these rules or by rules of
the Supreme Court of Kentucky.” 65 Holt v. Commonwealth, 219 S.W.3d 731, 738 (Ky. 2007) (citing Chapman v.
California, 386 U.S. 18 (1967)).
18 discovery materials since discovery had not progressed very far when Grissom
and Fisher were cell-mates.
Since the prosecutor and Detective Priddy had worked together over the
course of the investigation and had conferred about the discovery before trial,
Detective Priddy may have had some conceivable familiarity with the
progression of discovery disclosures. But it was apparent at trial that Detective
Priddy did not have such personal knowledge or memory of the specific
discovery timeline. The Commonwealth’s Attorney resorted to highly suggestive
and leading questioning during direct examination. The Commonwealth’s
Attorney put a purported discovery log in front of Detective Priddy on the
witness stand, and then seemed to point to or otherwise suggest specific
entries in the log to prompt Detective Priddy’s responses. This became a
pattern for that topic of inquiry. As examples of the Commonwealth’s
Attorney’s questions:
“Were you present in my office when we typed this up?”66 ...
“Do you know when the next batch of information would have come into the Commonwealth’s office?”67 ...
“And I wouldn’t have gotten anything else until August 3rd?”68 ...
66 I.e., “I typed this up.” 67 I.e., “My office turned this batch of information over at this time.” 68 I.e., “These are the documents I (or my office) would have had on August 3rd.”
19 “Were we able to note when the preliminary diagnosis from the medical examiner’s office was given to me?”69
Fisher objected to the form of questioning and the subject matter, asserting
Detective Priddy was not competent to testify to such matters without personal
knowledge. The trial court directed the Commonwealth’s Attorney soon after
questioning began to limit the questioning to matters of which Detective Priddy
had personal knowledge, but the form of questioning continued for several
more lines thereafter.
For the Commonwealth’s Attorney to persist in this manner was not
proper and was, in fact, error. SCR 3.130–3.4(e) forbids a lawyer from
asserting matters of personal knowledge unless testifying as a witness.
SCR 3.130–3.7 forbids a lawyer’s advocacy in a trial if the lawyer is expected to
be a witness. Deliberate violations of these rules, depending on how deliberate
and effective they are, can amount to prosecutorial misconduct and might
require reversal.70
The purpose of these rules against lawyer testimony and rules like
KRE 603, especially in the criminal context, is not only to avoid the obvious
biases an attorney has as advocate for her own client but also because
“improper suggestions, insinuations, and, especially, assertions of personal
knowledge [made by a prosecutor] are apt to carry much weight against the
69I.e., “This was when I (or my office) received the preliminary diagnosis from the medical examiner’s office.” 70Dickerson v. Commonwealth, 485 S.W.3d 310, 329 (Ky. 2016) (considering whether a prosecutor’s improper commentary was isolated or extensive, deliberate or accidental).
20 accused when they should properly carry none.”71 In our precedent is a
longstanding, sensitive standard that requires reversal when “any statement of
fact outside of the evidence [is made to the jury] which may be in the slightest
degree prejudicial to the rights of the accused.”72
Fisher’s claim here is similar to the Appellant’s claim of error in Holt v.
Commonwealth.73 This Court in Holt characterized the prosecutor’s conduct as
taking “broad liberties” in the mode of examination, whereby the
Commonwealth’s Attorney effectively testified “through” a witness.74 The
Commonwealth’s Attorney had met with her witness before trial to discuss the
substance of his prospective testimony. The Commonwealth’s Attorney
expected the witness to testify at trial that the defendant, Holt, admitted to the
witness his involvement in the crime. But on direct examination, the witness
balked, not responding as the prosecutor had hoped or anticipated. The
Commonwealth’s Attorney then asked outright, “Do you remember talking to
me this morning? . . . Do you remember telling me that [Holt] told you that [he
committed the crime]?”75 By doing this, the Commonwealth’s Attorney was
indirectly making assertions and establishing facts regarding’s Holt’s guilt, not
71 Holt, at 737. See Commonwealth v. Cook, 7 S.W. 155, 156 (Ky. 1888) (“[B]ut it is not [the prosecutor’s] duty to make a statement of fact, the credence of which is always more or less strengthened by his official position, outside of the record or evidence, which may tend in the least degree to prejudice the rights of the accused.”). 72 Cook, at 156. 73 See Holt, 219 S.W.3d at 732. 74 Id. at 733. 75 Id. Actual phrasing: “Do you remember telling me that he told you that he did it?”
21 properly drawing those facts from the witness’s own recollection and
understanding.
This Court held reversible error in Holt for a prosecutor to testify to facts
beyond the record through questioning, especially where the witness’s
testimony concerns a defendant’s out-of-court admission to a crime.76 The
suspect prosecutorial conduct is a manner of questioning that “place[s] the
prosecutor in the position of making a factual representation.”77 Holt
articulates a particularly sensitive standard toward these violations.78 The
majority in Holt also expressly rejected the dissent’s more tolerant approach
toward a prosecutor’s trying to “make the best of a bad situation with a difficult
witness.”79 “Hardly a lawyer who has tried a case has not been disappointed
by the testimony of a witness on direct examination. Our rules do not provide,
however, that when the witness disappoints, the lawyer may testify in his
stead.”80
76 Id. at 734. 77 Id. at 738 (“When the prosecutor effectively became a witness and confessed guilt for the defendant as if the confession came from his lips, the error was particularly egregious.”). 78 See id. at 734 (“While there was substantial evidence of appellant's guilt, we are not concerned here with whether there was sufficient evidence on which the petitioner could have been convicted without the evidence complained of. The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.”) (quoting Fahy v. Connecticut, 375 U.S. 85, 86–87 (1963)) (internal quotations omitted). 79 Holt, at 738. 80 Id.
22 A review of the present trial record raises concerns. The questioning
seemed intentional and persistent, and it was self-admittedly unnecessary in
light of available documentary alternatives.81 The Commonwealth’s Attorney
was feeding a witness facts beyond the witness’s personal knowledge through
leading questions and gestures, something that would have been apparent to
the jury. The Commonwealth’s Attorney thus improperly placed her credibility
in issue as an unsworn witness against Fisher.82 Her questioning was
improper.83 As a brief aside, the Commonwealth’s Attorney might have
attempted properly to refresh the witness’s recollection per KRE 612. But such
a writing “cannot be read [aloud] under the pretext of refreshing the witness’s
recollection.”84 That is what occurred here, so it cannot be affirmed as a
routine refreshing of a witness’s recollection.
Ultimately, while this is a close case considering the strict standard
articulated in Holt, we carefully conclude this was not a case of reversible
prosecutorial misconduct. In distinguishing the immediate case from the
outcome in Holt, we cannot help but account for the different circumstances of
81 The Commonwealth’s Attorney stated in conference, “I can get a certified copy [of the discovery timeline].” Trial Recording, 10/18/19, 9:31:15 AM. 82 See Holt, at 739 (“What transpired here is more than some technical violation of evidence rules or proper conduct by lawyers.”). 83 What is also troubling was that this testimony went to an important issue of fact, namely whether Grissom’s testimony of Fisher’s hearsay admission was true. Both the defense and the Commonwealth recognized Grissom’s credibility was a considerable issue at trial. Indeed, proving the cell-mate’s testimony, testimony that included a purported admission, arguably depended on proof of the discovery timeline. 84 Lawson, § 3.20[6][c] (on KRE 612) (citing Payne v. Zapp, 431 S.W.2d 890, 892
(Ky. 1968)).
23 the case before us. In Holt, the prosecutor herself practically supplied a
purported confession of a criminal defendant to the jury directly and
unqualifiedly when she found herself faced with a recalcitrant witness. Here,
the Commonwealth’s Attorney used suggestion to work with a witness that was
simply unprepared to testify to the unfamiliar details of the discovery timeline.
This Commonwealth’s Attorney did not misrepresent the discovery timeline.
Available certifiable documentation would have proven the same facts Detective
Priddy parroted on the stand. Detective Priddy would likely have said the same
things had she been properly prepared for trial. In Holt, by contrast, the
Commonwealth’s Attorney’s statement, made four different times, was directly
contrary to the witness’s testimony, as the witness persistently denied ever
sharing the confession with the prosecutor.85
Before us now is perhaps nothing more than an ill-prepared witness.
What the Commonwealth’s Attorney added to Priddy’s testimony did not lend
the sort of central, necessary support to the Commonwealth’s case as the
alleged confession did in Holt. The Commonwealth had otherwise
overwhelming evidence against Fisher, so we are satisfied that this error did
not achieve Fisher’s conviction. Though we do not retreat from the sensitive
standard for this form of misconduct, attorney testimony, the context in which
it occurs deserves more consideration than Holt seems to suggest. Holt’s
circumstances presented an evident, shocking case of misconduct.
85 Holt, at 734.
24 Although this questioning in the present case was improper and warrants
our disapproval, Fisher is not entitled to reversal for this error. We must
reiterate the higher standard to which we hold the Commonwealth’s Attorneys
as a matter of course.86 So we carefully affirm the judgment notwithstanding
this conduct, not because it is particularly tolerable but because we find the
error happened to be harmless beyond a reasonable doubt.
D. There is no cumulative reversible error.
Fisher claims that even if the errors in his trial do not individually require
reversal, they do require reversal in the aggregate because they cumulatively
rendered the trial fundamentally unfair. Here, though, only one error has been
identified, that which was found in the Commonwealth’s Attorney’s
questioning. That error did not warrant reversal. There being no other error to
aggregate with it, we need not engage in cumulative error analysis.87
III. CONCLUSION
There was only one error here, that the Commonwealth's Attorney
improperly questioned her witness. That error did not render Fisher's trial
fundamentally unfair. Therefore, we affirm the judgment.
All sitting. All concur.
86 Caudill v. Commonwealth, 374 S.W.3d 301, 309 (Ky. 2012) (“Prosecutors have a special role in the judicial system. Unlike other attorneys, a prosecutor has the responsibility of a minister of justice and not simply that of an advocate.”) (citing Model Rules of Prof'l Conduct R. 3.8 cmt. 1) (internal quotations omitted). 87 See Peacher v. Commonwealth, 391 S.W.3d 821, 852 (Ky. 2013).
25 COUNSEL FOR APPELLANT:
Adam Meyer Department of Public Advocacy
COUNSEL FOR APPELLEE:
Daniel J. Cameron Attorney General of Kentucky
Aspen Caroline Carlisle Roberts Assistant Attorney General