Barnes v. Com.

• Citation: 794 S.W.2d 165
• Decision Date: 28 June 1990
• Docket Number: No. 88-SC-831-MR,88-SC-831-MR
• Parties: Mitchell C. BARNES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court (Kentucky)

Page 165

794 S.W.2d 165

Mitchell C. BARNES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 88-SC-831-MR.

Supreme Court of Kentucky.

June 28, 1990.

As Modified on Denial of Rehearing Sept. 6, 1990.

Marie Allison, Asst. Public Advocate, Dept. of Public Advocacy, Frankfort, for appellant.

Frederic J. Cowan, Atty. Gen., Rickie L. Pearson, Asst. Atty. Gen., Frankfort, for appellee.

LAMBERT, Justice.

Claiming a number of trial errors, including the admission into evidence of an affidavit for a restraining order signed by the victim two and a half years prior to her death, appellant appeals to this Court from his murder conviction by which he was sentenced to an indeterminate term of confinement not to exceed fifty years.

The tragic facts of this case are not unfamiliar. Appellant and his wife married young. During their time together, appellant drank alcohol to excess, frequently assaulted his wife, and finally caused or contributed to her death.

According to appellant, after an evening of dancing and excessive drinking, he and his wife returned to their home. Appellant was depressed and while his wife was in the bathroom, he obtained a shotgun from another room with the thought of suicide. When his wife entered the room and discovered him sitting on the bed holding the gun, she exclaimed and grabbed the barrel of the gun with both hands and when she did, the gun discharged into her abdomen causing her death. Appellant left the house and shortly thereafter encountered a police officer to whom he said "help me, help me. I shot my wife." A trip to the home revealed that appellant's wife was dead and appellant was arrested.

After waiving his right to remain silent appellant gave the police a statement which disclosed that he had been drinking, that he and his wife had argued, that he had obtained the shotgun to shoot himself, that a struggle had occurred, and that as the victim pulled the barrel of the previously cocked shotgun, it accidentally discharged. Appellant said he shoved the gun under a couch and left the house en route to his brother's home to obtain help.

The post mortem examination confirmed that the victim died of a gunshot wound to the abdomen and the ballistics experts placed the distance between the muzzle of the shotgun and the victim's body at between one and five feet.

About two and a half years prior to her death, the victim brought a divorce action against appellant. In the divorce proceeding she moved for a restraining order and executed an affidavit in support of her motion. Paragraphs three and four of the affidavit were as follows:

"3. In spite of numerous requests by Petitioner that Respondent [appellant herein] refrain from such acts, the respondent has on numerous occasions physically thrown her out of home, has hit her and threatens to shoot Petitioner with his rifle or handgun.

4. The Petitioner believes that unless a Restraining Order is issued she will suffer immediate and irreparable harm."

Over appellant's motion in limine prior to trial and his objection on hearsay grounds when the evidence was offered, the Commonwealth was permitted to read the foregoing affidavit to the jury. On appeal, appellant claims denial of his federal and state constitutional right of confrontation. The Commonwealth contends that the affidavit was properly admitted under the present state of mind exception to the hearsay rule.

Any discussion of the hearsay rule must start with the proposition that hearsay evidence is not admissible unless it fits within a recognized exception to the rule against admissibility. Hearsay is defined as "an extrajudicial utterance (oral or written) offered to prove the truth of the matter asserted." R. Lawson, The Kentucky Evidence Law Handbook, Sec. 8.00 (2nd. ed. 1984). In a widely quoted statement explaining the principles underlying exclusion of hearsay evidence, this Court said:

"The theory of the hearsay rule is that when a human utterance is offered as evidence of the truth asserted in it, the credit of the assertor becomes the basis of our inference, and therefore the assertion can be received only when made upon the stand and subject to the test of cross-examination. Wigmore on Evidence, section 1361.

This hearsay rule forbids the use of an assertion, made out of court, as testimony to the truth of the fact asserted...." Davis v. Bennett's Adm'r, 279 Ky. 799, 132 S.W.2d 334, 338 (1939).

These principles were elaborated in Kinder v. Commonwealth, Ky., 306 S.W.2d 265, 266 (1957), as follows:

"Hearsay has been defined as evidence which derives its value not solely from the credit to be given to the witness upon the stand, but in part, from the veracity and competency of some other person. The hearsay rule signifies a rule rejecting assertions offered testimonially which have not been in some way subjected to the test of cross-examination under oath. It is an extrajudicial testimonial assertion which may be either written or spoken. The theory of the rule is that the many possible deficiencies, suppressions, sources of error and untrustworthiness, which lie underneath the bare untested assertion of a witness, may be best brought to light and exposed by the fundamental test of cross-examination."

The essence of the rule prohibiting the admission of hearsay evidence is the absence of an opportunity for cross-examination. While a number of exceptions have been developed to permit the admission of hearsay evidence when it has been shown to be necessary and trustworthy, the general rule has not been lost in the exceptions. To deprive a litigant of a right so fundamental as the right to confront and cross-examine witnesses, the statements must possess characteristics or have been made under circumstances which substantially eliminate the possibility of error. Reliability must be established. See generally Lawson, The Kentucky Evidence Law Handbook, Chapter 8 (2nd ed. 1984).

In the instant case, appellant was on trial for intentionally causing the death of his wife. It was his right to challenge the evidence presented and cross-examine witnesses against him. This right was denied when the jury was permitted to hear the unchallenged statement made by his wife in a divorce proceeding two and a half years earlier in which she said that appellant "threatens to shoot Petitioner with his rifle or handgun." This evidence was offered to prove the truth of the matter asserted, i.e. that appellant had made such a threat, and permitted the jury to infer that the threat had been carried out. At no time was this statement subjected to cross-examination to reveal its possible exaggeration, abridgement of facts, or outright falsehood. Thus, in appellant's trial for murder the jury which determined his guilt was allowed to hear evidence which tended to establish his intent, the most basic element of the crime charged, without any opportunity to test such evidence by cross-examination.

We have examined the authorities cited by the Commonwealth, and particularly our decisions in Fleenor v. Commonwealth, 255 Ky. 526, 75 S.W.2d 1 (1934), and Scruggs v. Commonwealth, Ky., 566 S.W.2d 405, cert. denied, 439 U.S. 928, 99 S.Ct. 314, 58 L.Ed.2d 321 (1978). Fleenor is easily distinguished from the instant case because the threat was disclosed by a witness who testified at trial and was subject to cross-examination. Our holding that proof of the state of antagonism between the defendant and the deceased was competent does not dispense with the requirement that the source of the testimony be subject to cross-examination. Our decision in Scruggs is likewise distinguishable in that the appellant sought to introduce the exculpatory oral statements of and a note written by the victim. Affirming the trial court's decision to exclude this evidence, we said:

"[T]he person making the statements and writing the note is dead and certainly not available. The evidence does not establish the oral or written statements of the decedent to possess a high degree of trustworthiness nor are the statements shown to be relevant to the guilt or innocence of the appellant of the murder of his wife. Neither the statements made by the victim on the weekend prior to her disappearance nor the contents of the note comes within the exception to the hearsay rule. Both were properly excluded." Id. at 410.

Appellee also relies on this Court's decision in Matthews v. Commonwealth, Ky., 709 S.W.2d 414 (1985), cert. denied, 479 U.S. 871, 107 S.Ct. 245, 93 L.Ed.2d 170 (1986), in which we found no error in the admission of evidence that the victim had taken a warrant against appellant shortly before the crime was committed. This evidence was found to be relevant to the motive or state of mind of appellant and to be a part of the immediate circumstances bearing on the crimes charged. The instant case is inapposite. The Commonwealth does not contend that appellant murdered his wife in retaliation for her attempt to obtain a restraining order two and a half years earlier nor does it contend that the affidavit was a part of the immediate circumstances bearing on the crimes charged. The fact of the warrant obtained in Matthews was found to be relevant as to motive or state of mind. No such finding can be made with regard to the affidavit admitted in the evidence of this case.

Moreover, it is of little significance that the hearsay evidence was in the form of an affidavit. We are unaware of any rule of law whereby inadmissible hearsay is rendered admissible by virtue of the fact that it is sworn. At most a statement made under oath might be regarded as possessing a greater degree of trustworthiness, but such is not sufficient to overcome the general rule elaborated herein. ¹

On this issue we conclude as we began. In Jett v. Commonwealth, Ky., 436 S.W.2d 788 (1969), this Court greatly expanded the use of hearsay evidence. Central to our holding, however, was preservation of the right of cross-examination. We...