Rogers v. Com., s. 95-SC-844-M

• Citation: 992 S.W.2d 183
• Decision Date: 25 March 1999
• Docket Number: Nos. 95-SC-844-M,96-SC-232-MR,s. 95-SC-844-M
• Parties: Ernest Arnaze ROGERS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 183

992 S.W.2d 183

Ernest Arnaze ROGERS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Nos. 95-SC-844-MR, 96-SC-232-MR.

Supreme Court of Kentucky.

March 25, 1999.

As Modified June 17, 1999.

Marie Allison, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Karen Maurer, Assistant Public Advocate, Department of Public Advocacy, Frankfort, for Appellant.

A.B. Chandler, III, Attorney General, Frankfort, Kent T. Young, Assistant Attorney General, Office of the Attorney General, Criminal Appellate Division, Frankfort, for Appellee.

STEPHENS, Justice.

Appellant Ernest Rogers was tried and found guilty of murder, first degree robbery, criminal attempt to commit murder, kidnapping and first degree attempted rape. Rogers was sentenced to a term of eighty years of incarceration. The jury was unable to reach a unanimous agreement on what sentence Rogers should be awarded for his murder conviction. Since the murder was committed during the commission of a first-degree robbery, Rogers was eligible for the death penalty. Subsequently, Rogers was sentenced to the death penalty. Rogers appeals his convictions for various reasons which shall be discussed in the body of this opinion.

On the night of July 11, 1994, two men abducted and robbed Steve Marquess and Tracey Geordan while they were working in the Brickyard Plaza parking lot in Hopkinsville, Kentucky. Marquess was able to escape from his captors. However, Geordan was not so fortunate. She was found dead and the victim of an attempted rape. Ernest Rogers and Nakia Dillard were arrested and charged with these crimes. Dillard made a statement to the police that was recorded on videotape. In this statement, Dillard admits that he abducted, robbed and shot without result at Marquess. However, Dillard placed all blame on Rogers for the attempted rape and murder.

Although Rogers raises numerous issues in this matter of right appeal, in view of our disposition of this case we find it necessary only to deal with the two following matters. One, was the statement given by Rogers' co-defendant Nakia Dillard properly admitted into evidence at trial? Two, should the trial court have permitted the defendants to show their fingernails to the jury? We shall now discuss both these issues in greater detail.

I. Admissibility of Confession of Co-Defendant at Trial.

During the course of the trial of Rogers and Dillard, Dillard's videotaped statement was played in its entirety for the jury. The only redaction to the videotape was that whenever Dillard referred to Rogers, the audio was deleted at that part. This redaction was the sole attempt to comply with the requirements of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) and Cosby v. Commonwealth, Ky., 776 S.W.2d 367 (1989). We find this attempt insufficient. The dictates of these cases require that any statement which is to be shown to the jury must be so purged of the mention of a co-defendant as to remove any prejudicial effect. That was not achieved in this case. It was obvious that the silence referred to Rogers. No other conclusion is possible.

Section Eleven of the Kentucky Constitution, as well as the Sixth Amendment to the United States Constitution, guarantees a defendant the right to meet and challenge the witnesses who come to offer evidence at trial. In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the United States Supreme Court held that in a joint trial the admission of a non-testifying co-defendant's confession which "expressly implicated" his fellow co-defendant, was a violation of the Confrontation Clause of the Sixth Amendment, as extended to the several States by the Fourteenth Amendment. Id. at 124, n. 1, 88 S.Ct., at 1621 n. 1. Bruton was based on the proposition that while it is legitimate in many cases to give a limiting instruction to a jury, in this case a limiting instruction is not "an adequate substitute for [a co-defendant's] constitutional right of cross-examination." Id. at 136, 88 S.Ct. at 1628. The right of confrontation includes the right to cross-examine witnesses. Pointer v. Texas, 380 U.S. 400, 404, 406-07, 85 S.Ct. 1065, 1068, 1069-70, 13 L.Ed.2d 923 (1965).

In Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987), the United States Supreme Court again had occasion to revisit the issue of the admissibility of a non-testifying co-defendant's statement. In Richardson, the issue was whether a confession of the first defendant, which in its redacted form omitted all references to the second defendant, was admissible against the second defendant. The Richardson Court held that under such conditions, a confession would be admissible against the second defendant. The reason the confession was admissible in Richardson, but not in Bruton was that in the latter case the confession clearly implicated the co-defendant, while in the former case, the confession made no mention of the co-defendant or for that matter that anyone other than the confessor and a third person had been involved in the wrongdoing. Richardson, 481 U.S. at 203, 107 S.Ct. at 1705. In Richardson, the confession only became incriminating when it was "linked with other evidence introduced later at trial." Id. at 208, 107 S.Ct. at 1707.

This Court has also dealt with the issue of the admissibility of a co-defendant's confession in a joint trial. In Cosby v. Commonwealth, Ky., 776 S.W.2d 367 (1989), basing our decision on Bruton and Richardson, we found that a co-defendant's confession had been improperly admitted into evidence. Cosby and his co-defendant, Walls, were jointly tried for robbery, kidnapping and murder. The statement of Cosby's non-testifying co-defendant was played before the jury, which, just as in the instant case, placed the blame for the most serious crime upon Cosby. The Cosby court held that since Walls' statement was improperly introduced to the jury, Cosby's conviction was reversed and remanded for new trial.

In a case remarkably similar to the instant case, the United States Supreme Court held that simply replacing a co-defendant's name with the words "deleted" or "deletion", does not comply with the dictates of Bruton and Richardson. In Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998), a confession was read into evidence with some other word being substituted for the co-defendant's name. That court held:

Unless the prosecutor wishes to hold separate trials or to use separate juries or to abandon the use of the confession, he must redact the confession to reduce significantly or to eliminate the special prejudice that the Bruton Court found. Redactions that simply replace a name with an obvious blank space or a word such as "deleted" or a symbol or other similarly obvious indications of alteration, however, leave statements that, considered as a class, so closely resemble Bruton's unredacted statements that, in our view, the law must require the same result. (emphasis added).

Id., 118 S.Ct. at 1155, 523 U.S. 185.

The Gray Court had three primary reasons for reaching the result it did. First "a jury will often react similarly to an unredacted confession and a confession redacted this way, for the jury will often realize that the confession refers specifically to the defendant." Id. Second, "the obvious deletion may well call the jurors' attention specifically to the removed name. By encouraging the jury to speculate about the reference, the redaction may overemphasize the importance of the confession's accusation--once the jurors work out the reference." Id. at 1155-56, 523 U.S. 185. "Finally, Bruton's protected statements and statements redacted to leave a blank or some similarly obvious alteration, function the same way grammatically. They are directly accusatory... The blank space in an obviously redacted confession also points directly to the defendant." Id. at 1156, 523 U.S. 185. For these reasons the Gray Court found that confessions which are redacted as was the instant confession are no different than the admission of an unredacted confession and thus "warrant the same legal results." Id.

In discussing why confessions redacted in the manner of the instant confession fall outside of the ambit of Richardson, the Gray Court pointed out that "Richardson's inferences involved statements that did not refer directly to the defendant himself and became incriminating only when linked with evidence introduced later at trial." Id. at 1157, 523 U.S. 185 (citing Richardson, 481 U.S. at 208, 107 S.Ct. at 1707) (internal quotes omitted). While in Gray and in the instant case, the redacted confession with an obvious blank prominent on its face, in the words of the Richardson Court, "facially incriminat[es] the codefendant." Id. (citing Richardson, 481 U.S. at 209, 107 S.Ct. at 1708). Accordingly, we hold that the merely deleting the defendant's name is not sufficient to comport with the dictates of Bruton, Richardson, Cosby and Gray and in so doing violates Section 11 of the Kentucky Constitution as well as the Sixth Amendment to the United States Constitution.

When the Commonwealth wishes to employ the statement of a non-testifying co-defendant, it has two choices. It can either engage in separate trials for each defendant or it can redact the statement, if it is possible, so that "the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence." Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 1705, 95 L.Ed.2d 176 (1987).

II. Viewing of Co-defendants Fingernails by Jury.

The second issue which we shall address is the viewing of Dillard's fingernails (or more appropriately, the lack thereof) by the jury. Counsel for Dillard made a motion that both Dillard and Rogers exhibit their hands to the jury. The apparent reason for this had little to do with the defendants' hands and much more to do with their fingernails. According to...