Barth v. Com., 1999-SC-1027-MR.
| Citation | 80 S.W.3d 390 |
| Decision Date | 25 October 2001 |
| Docket Number | No. 1999-SC-1056-MR.,No. 1999-SC-1027-MR.,1999-SC-1027-MR.,1999-SC-1056-MR. |
| Parties | Michael David BARTH, Appellant v. COMMONWEALTH OF KENTUCKY, Appellee. and Peter John BARTH, IV Appellant v. COMMONWEALTH OF KENTUCKY Appellee |
| Court | United States State Supreme Court (Kentucky) |
John Palombi, Emily Holt, Department of Public Advocacy, Frankfort, Counsel for Appellant Michael David Barth (1999-SC-1027-MR).
A.B. Chandler, III, Attorney General, John E. Zak, Assistant Attorney General, Criminal Appellate Division, Office of the
Attorney General, Frankfort, Counsel for Appellee Commonwealth of Kentucky (1999-SC-1027-MR).
Timothy G. Arnold, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Counsel for Appellant Peter John Barth, IV (1999-SC-1056-MR).
A.B. Chandler, III, Attorney General, Vickie L. Wise, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee Commonwealth of Kentucky (1999-SC-1056-MR).
On May 8, 1998, two individuals entered the home of Randall Jackson in Nelson County, Kentucky, bound him, blindfolded him, tortured him, stole his money and certain other valuables, then drove off in his wife's Cadillac. Michael David Barth was arrested for these crimes on May 15, 1998. Two weeks later, Michael's brother, Peter John ("P. J.") Barth, IV, was arraigned in juvenile court and, on June 8, 1998, transferred to Nelson Circuit Court to be tried as an adult. Following a trial by jury, both brothers were found guilty of first-degree burglary, first-degree robbery, second-degree assault, and criminal mischief. Each was sentenced to twenty-three years in prison and each now appeals to this Court as a matter of right. Ky. Const. § 110(2)(b).
On that May morning, two men appeared at the home of sixty-one-year-old Randall Jackson feigning car trouble to gain entry into the residence. Once inside, one of the men drew a handgun and told Jackson to lie down. The perpetrators used duct tape to bind Jackson's feet and hands and to blindfold his eyes. The two then took Jackson's wallet and demanded to know where his money was hidden. When Jackson failed to respond, the assailants dragged him across the carpet, beat him with sticks, threatened to kill him, prodded him with the gun, and dripped hot candle wax on his neck and ears in an effort to force him to reveal the location of his money. To no avail.
Finally, the men discovered the soughtafter money in the spare tire of Mrs. Jackson's Cadillac. After taking some jewelry and two bottles of bourbon, the two then drove off with the car. The Cadillac was recovered on May 10, 1998. After it was discovered that Michael Barth had sold some jewelry at an Elizabethtown pawn shop, that he matched Jackson's description of one of the robbers, and that his mother was in possession of some of the stolen jewelry, a warrant was issued for his arrest. Michael subsequently confessed to the crimes, but refused to reveal the identity of his accomplice. Police, however, suspected that Michael's brother, P. J., was the other culprit. Latent fingerprints, taken from Jackson's residence and the Cadillac, were later determined to be those of the brothers.
P.J. argues that his brother's confession was improperly admitted at trial and was improperly used at his juvenile transfer hearing in the Nelson District Court. We conclude that the admission of Michael's confession at trial violated P. J.'s right of confrontation, but that it was permissible to use the confession at the transfer hearing.
A. Use of the confession at trial.
The Nelson Circuit Court admitted Michael's confession at trial under Richardson. v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987), because the confession did not explicitly refer to P.J. by name. The confession was admitted without a limiting admonition by the trial court (none was requested). On appeal, P.J. argues that Michael's confession was inadmissible because it was not sufficiently redacted and, alternatively, that the trial judge should have admonished the jury sua sponte as to its limited use.
Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), held that the admission of a non-testifying defendant's confession that expressly implicated his codefendant violated the Confrontation Clause of the Sixth Amendment of the United States Constitution. Id. at 137, 88 S.Ct. at 1628. In that situation, the codefendant has no opportunity to directly question his hearsay "accuser." Bruton overruled Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957), which had allowed the introduction of a non-testifying defendant's inculpatory confession in a joint trial provided that a limiting instruction was given to the jury to consider the confession as evidence only against the confessor.
In Richardson v. Marsh, supra, the United States Supreme Court held that the Confrontation Clause is satisfied if "the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence." Id. at 211, 107 S.Ct. at 1709. In reaching this conclusion, the Court in Richardson distinguished Bruton:
In Bruton, the codefendant's confession "expressly implicat[ed]" the defendant as his accomplice. Thus, at the time that confession was introduced there was not the slightest doubt that it would prove "powerfully incriminating." By contrast, in this case the confession was not incriminating on its face, and became so only when linked with evidence introduced later at trial....
Id. at 208, 107 S.Ct. at 1707 (citations omitted).
Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998), addressed the extent and sufficiency of the redaction required by Richardson. In Gray, the non-testifying defendant's confession had been redacted by replacing any reference to the codefendant's name with a blank space or the word "deleted." Id. at 188, 118 S.Ct. at 1153. The Supreme Court concluded that, unlike in Richardson, the confession at issue referred "directly to the `existence' of the nonconfessing defendant." Id. at 192, 118 S.Ct. at 1155. The Court held that a confession "which substitute[s] blanks and the word `delete' for the [defendant's] proper name, falls within the class of statements to which Bruton`s protections apply." Id. at 197, 118 S.Ct. at 1157. Likewise, the admission of Michael's confession violated P. J.'s Sixth Amendment rights as interpreted in Bruton and Gray. In relevant part, Michael stated in his confession:
Q. And who did you go to Randall Jackson's house with?
A. I can't tell you that.
* * * * * *
Q. Who taped up Randall?
A. The other party....
Q.... You and another party, that you're not naming[,] went into the house?
A. Uh-huh.
Q. Okay, who ... did all the injuries to Randall?
A. The other party. I made sure he's all right. I didn't touch him.
* * * * * *
Q.... And when you took the gun to the saw mill, you were by yourself?
A. Naw. Somebody was with me.
Q. Was it this other unnamed party? A. Yeah. It was.
Q. Okay, so this person was with you at the hospital?
A. Yeah.
* * * * * * *
Q. When you went [into Randall's house] this other party was with you.... How come you didn't get involved in none of that hitting on Randall?
A. `Cause I'm not like that. I didn't go there to hurt nobody.
* * * * * *
Q. [How did Randall] get wax on him?
A. I guess the other party dumped it on him.
Q. What, candle wax?
A. Yeah.
* * * * * *
Q. So who took the one gun. Did you take it?
A. The other party did.
* * * * * *
Q. Okay, ... did you hide the gun?
A. Nope.
Q. Then who hid it.
A. The other party.
Q. And you don't [want to] say who this other party is?
While the confession did not directly implicate P.J. by name, it was facially inculpatory as to the unnamed "other party." As in Gray, supra, the jury needed only to make a slight, intuitive leap to infer that P. J., the confessor's codefendant, was the "other party" identified in the confession as the primary perpetrator of these crimes. As explained in Gray, supra:
The inferences at issue here involve statements that, despite redaction, obviously refer directly to someone, often obviously the defendant, and which involve inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial. Moreover, the redacted confession with the blank prominent on its face ... "facially incriminates" the codefendant.
Id. at 196, 118 S.Ct. at 1157 (emphasis in original).
A Bruton violation can be subject to harmless error analysis. Gill v. Commonwealth, Ky., 7 S.W.3d 365, 368 (1999), cert. denied, 531 U.S. 830, 121 S.Ct. 83, 148 L.Ed.2d 45 (2000). However, "before a federal constitutional error can be held harmless, the [reviewing] court must be able to declare a belief that it was harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). Upon review of the record before us, we conclude that the error in this case was not harmless beyond a reasonable doubt.
Other than Michael's confession, the only evidence linking P.J. to the crime was Randall Jackson's in-court identification and P. J.'s fingerprints found on the Cadillac and other stolen items. The reliability of identification testimony has long been questioned by various litigants, courts and commentators. See, e.g., United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 1933, 18 L.Ed.2d 1149 (1967) (). While sufficient to avoid a directed verdict of acquittal, we do not believe the victim's identification of P.J. as one of his attackers or the evidence linking P.J. to the spoils of the robbery were "so overwhelming that the...
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