Taylor v. Commonwealth

821 S.W.2d 72, 1990 WL 323242

• Court: Kentucky Supreme Court
• Decided: July 3, 1991
• Docket: 86-SC-481-MR
• Status: Published

Opinions

WINTERSHEIMER, Justice.

Victor Dewayne Taylor appeals from a judgment based on a jury verdict which convicted him of two counts of murder, kidnapping and first-degree robbery and one count of first-degree sodomy. He was sentenced to death on the murder and kidnapping convictions and to consecutive twenty year terms of imprisonment for the robbery and sodomy convictions.

Taylor and codefendant George Wade were charged with the murders, kidnapping and robbery of two high school students. The prosecution presented evidence in the form of a statement by Wade which indicated that he and Taylor kidnapped and robbed the two students who had gotten lost on their way to a football game. The young men had stopped at a fast food restaurant to ask directions when they were confronted by Taylor and Wade. Other witnesses indicated that Taylor had a gun and forced the victims to get into their car and drive away. Wade in his statement said that he and Taylor robbed the boys and that he had removed both boys trousers, bound their ankles and gagged them in a Louisville alley. Wade’s statement was that Taylor decided to kill the two victims because he was afraid they would identify them. Wade said he waited on a nearby street while Taylor shot both boys in the head.

Upon a change of venue both Taylor and Wade were tried in Lexington. Wade was tried separately and found guilty of two counts of murder, kidnapping, first-degree robbery, but was acquitted of sodomy. The jury recommended sentences of fifteen years on the robbery, twenty-two years on the kidnapping and life imprisonment on the murders. All sentences were to run concurrently, and Wade was sentenced to a total of life imprisonment.

At Taylor’s trial Wade, who was tried first, cited his Fifth Amendment right against self-incrimination, and refused to testify. His edited confession was admitted against Taylor.

Taylor, through counsel, raises forty-four assignments of alleged error in this appeal. We have carefully reviewed all of the issues presented by Taylor and this opinion will concentrate on the question of the admissibility of the Wade confession and the propriety of the trial judge’s refusal to grant a second change of venue. Allegations of error which we consider to be without merit will not be addressed here.

I

The trial judge did not err by admitting Wade’s statement into evidence pursuant to Federal Rule of Evidence 804(b)(3) which was adopted by this Court in Maynard v. Commonwealth, Ky.App., 558 S.W.2d 628 (1977); Crawley v. Commonwealth, Ky., 568 S.W.2d 927 (1978) and reaffirmed in Dodson v. Commonwealth, Ky., 753 S.W.2d 548 (1988).

The trial judge in ruling on motions concerning Wade’s unavailability as a witness and whether his statement was against his own interest found that FRE 804(e) provides in pertinent part that a witness is unavailable if he is exempted from testifying concerning the subject matter of his statement by a ruling of the trial judge on the grounds of privilege. The trial judge in the presence of Wade, but outside the presence of the jury, determined that Wade would rely on the Fifth Amendment privilege and that the privilege was valid because his conviction was pending on appeal. Accordingly, the trial judge found that Wade was unavailable as a witness pursuant to FRE 804(a)(1) and Crawley, supra.

The trial judge after hearing argument of counsel and considering the provisions of the Federal Rule of Evidence 804(b)(3) as well as Kentucky authority concluded that the out-of-court statement of Wade at the time of its making was so far contrary to Wade’s penal interests and subjected him to criminal liability that a reasonable man in such a position would not have made the statement unless it was true. He further concluded that the admissions against Taylor in Wade’s statement were essentially consistent with his sworn in-court testimony as well as the testimony of three other prosecution witnesses, and in the context of other admissions against Taylor, exclusion would appear to deprive the finder of fact of relevant and reliable evidence.

Trustworthiness of a hearsay statement against penal interest is a prerequisite to its admissibility. Crawley, supra, quoting from Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), set out the four factors the Supreme Court deemed relevant to the trustworthiness of such statements: (1) The time of the declaration and the party to whom made; (2) the existence of corroborating evidence in the case; (3) the extent to which the declaration is against the declar-ant’s penal interest and (4) the availability of a declarant as a witness.

Wade’s statement was properly admitted into evidence. His statement was made to the police prior to his arrest but after he had been picked up for questioning. He was Mirandized three times, informed that he failed a polygraph test and identified in a lineup prior to his confession. His final waiver of rights was tape-recorded, reduced to writing and signed in the presence of two police officers. The mere fact that Wade had initially denied any involvement in the crimes and confessed only after receiving notice that he had been identified in the lineup does not render the confession involuntary. Cf. Commonwealth v. Vanover, Ky., 689 S.W.2d 11 (1985). There is no suggestion that Wade was attempting to curry favor from the arresting officer. He confessed without promises being made. While he was not under arrest, Wade certainly knew he was a suspect. The statement Wade gave to the police was corroborated in part by five different witnesses. Every material detail of Wade’s confession was corroborated by independent testimony and physical evidence.

Wade’s statement was against his own interest. His confession was not any less a statement against his own penal interest simply because it also implicated Taylor. Wade admitted that he actively participated in the kidnapping and robbery. He said that he bound, gagged and robbed the victims. He also described the events which culminated in the shootings. The determination of whether an out of court statement is against the declarant’s penal interest does not require an assessment of the declarant’s subjective motivation. The determination should be made upon an examination of the statement made and application of an objective measure of whether it is against penal interest. By such an assessment, Wade’s confession was a statement against his own interest for the purpose of FRE 804(b)(3).

Federal Rule of Evidence 804(a), in relevant part, provides that a declarant is not available for the purposes of the hearsay rule if he:

1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement; or

2) persists in refusing to testify concerning the subject matter of the declar-ant’s statement despite an order of the court to do so....

Wade informed the Court that in spite of the prosecutor’s proffered immunity he would invoke his fifth amendment privilege against self-incrimination if called to testify. The trial judge correctly determined that Wade who had a pending criminal appeal at the time was unavailable as a witness under FRE 804(a).

Courts are reluctant to admit hearsay evidence because of the its inherent unreliability. Numerous exceptions have been carved out of the general prohibition against admitting hearsay. FRE 804(b)(3), statements against penal interest, allows hearsay statements to be admitted if they are against declarant’s penal or proprietary interest, trustworthy, and the declarant is unavailable. No lack of trustworthiness could be implied regarding the content of Wade’s confession or the circumstances surrounding it. There was no factual basis for the presumptive suspicion that frequently relates to a codefendant’s confession. Wade’s confession was corroborated in every material detail by independent testimony and physical evidence. Wade was unavailable, his statement was against his own interest, and from the physical evidence, the testimony of witness and Wade’s confession, it was reliable and trustworthy. The trial judge was correct in admitting Wade’s statement. As a reviewing court, we find no reason to disturb the action taken. Reichle v. Reichle, Ky., 719 S.W.2d 442 (1986).

Taylor argues that the introduction of a nontestifying-codefendant’s confession invariably results in a violation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). He also contends that Rule 804(b)(3) is unconstitutional. The trial judge correctly ruled that the edited confession was admissible in Taylor’s separate trial. The confession was the last item of evidence presented by the prosecution in the case in chief. It was edited to delete all references to other crimes.

Bruton, supra, holds generally that a defendant’s Sixth Amendment right to confrontation is violated when he is directly incriminated by the confession of a nontestifying codefendant. The rationale for this general rule of constitutional law is the same as that underlying the general prohibition against hearsay evidence, that is the presumptive unreliability of an extrajudicial confession. Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987), a conspiracy case, discussed the relationship between various Federal Rules of Evidence and the Confrontation Clause, and indicates that out of court statements are only presumed unreliable and the presumption may be rebutted by appropriate proof. It also recognizes the cumulative value of certain evidence. When taken together the two principles demonstrate that what may be unreliable in isolation may be probative when corroborated by other evidence. Bourjaily also indicated that the literal interpretation of the confrontation clause was too extreme and that the societal interest of accurate fact finding requires harmonization with the confrontation provision. Accommodation of these competing interests has in general required the prosecution to demonstrate both the unavailability of the witness and the indicia of reliability surrounding the out of court statements.

A number of federal circuit courts have followed the Bourjaily philosophy. See United States v. Robinson, 635 F.2d 363 (5th Cir.1981); United States v. Katsougrakis, 715 F.2d 769 (2nd Cir.1983); United States v. Harrell, 788 F.2d 1524 (11th Cir. 1986); United States v. Kelley, 526 F.2d 615 (8th Cir.1975).

A codefendant’s confession is not per se untrustworthy but is only presumptively unreliable and the presumption may be rebutted. Dodson, supra, held that this type of evidence can be admissible if its presumptive unreliability is sufficiently rebutted by corroborating circumstances which clearly indicate its trustworthiness.

In view of the trial judge’s holding that the statement came in as a recognized exception to the hearsay rule, we find no conflict with the confrontation clause. See Crawley, supra; Bourjaily, supra.

II

The trial judge did not abuse his discretion when he overruled Taylor’s second change of venue motion for lack of reasonable notice. Taylor admitted that his motion was filed late.

The prosecution was not given reasonable notice of the motion for a second change of venue. Accordingly without reasonable notification the Commonwealth could not present evidence in support of its opposition to the motion by subpoenaing witnesses to testify or otherwise prepare to contest the motion. Sullivan v. Commonwealth, 185 S.W. 134, 169 Ky. 797 (1916). Therefore the trial judge did not abuse his discretion by denying the motion. Cf. Geary v. Commonwealth, Ky., 503 S.W.2d 505 (1972). The argument that the prosecution received constructive notice is without merit.

It is unnecessary to consider the argument by Taylor that Kentucky Revised Statute 452.240 is unconstitutional. The statute provides that not more than one change of venue shall be allowed to any person or to the state in the same criminal action. Taylor had already been granted one change of venue from Louisville to Lexington. The trial judge did indicate when he denied the second change of venue that he would consider moving the trial if he discovered problems in seating an impartial jury.

In regard to the issue of juror bias, a careful examination of the extensive record of jury voir dire indicates that the trial judge took very extended precautions to insure the fairness of the jury panel. The prospective jurors were subject to general and individual voir dire regarding publicity about Wade's sentence and as to their ability to be impartial. All prospective members of the jury received a letter from the Court Administrator advising them not to read or discuss the Wade trial. They all indicated that they had followed the instructions of the court. The record clearly indicates that all twelve jurors demonstrated that they had little if any knowledge of either Wade or Taylor and only one juror had even heard of the so-called Truth in Sentencing legislation. None of the responses indicated any degree of prejudice as a result of pretrial publicity. The selection of the jury was fair and impartial. Consequently there was no need for a second change of venue. See Kimbrough v. Commonwealth, Ky., 550 S.W.2d 525 (1977); also Payne v. Commonwealth, Ky., 623 S.W.2d 867 (1981).

Under the trial court’s instructions the appellant was sentenced to death four times, once each for murder and kidnapping as to each victim. The appellant argues that Section 13, the double jeopardy provision of the Bill of Rights in the Kentucky Constitution, and the 5th and 14th Amendments of the United States Constitution, prohibit imposing the death penalty for kidnapping and murder of the same victim in present circumstances. The appellant was death eligible for kidnapping under Kentucky law, KRS 509.040(2), only because he was found guilty of murdering the victims.

The defendants in Cosby v. Commonwealth, Ky., 776 S.W.2d 367 (1989), like the present appellant, argued that double jeopardy principles forbid the imposition of the death penalty for murder and kidnapping, “when the same act of murder” provides the justification. Kidnapping is only a capital offense under Kentucky law “when the victim is not released alive,” which “refers to the victim’s death being caused by some aspect of the kidnapping, not to a fortuitous and unrelated circumstance.” Id. at 372. Therefore, as Cosby states, “murder and kidnapping merge at the enhancement stage.” Id. at 373.

The death sentence imposed on Taylor was not inappropriate, arbitrary, cruel, unusual or disproportionate. The death penalty statute was constitutionally applied. The mitigating circumstances did not outweigh the aggravating circumstances.

In making review required by K.R.S. 532.075(3), we find nothing in the record that the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor. The death sentence was not excessive or disproportionate to the penalty imposed in similar sentences since 1970 considering both the crime and the defendant. Those cases have been previously recited by this Court in Simmons v. Commonwealth, Ky., 746 S.W.2d 393 (1988) and that list is incorporated herein by reference and our review is in accordance with K.R.S. 532.075(5). In addition, we have also considered the case of Moore v. Commonwealth, Ky., 771 S.W.2d 34 (1989). We have conducted an independent review of the circumstances and conclude that they exceed any minimum justifying capital punishment.

While the judgment of conviction is affirmed, the Court vacates two of the four death sentences, being the two imposed on the kidnapping convictions, and remand is directed for resentencing on these charges as Class A felonies.

STEPHENS, C.J., and LAMBERT, REYNOLDS and SPAIN, JJ., concur. LEIBSON, J., dissents by separate opinion, in which COMBS, J., joins.