Bray v. Com.
| Decision Date | 21 February 2002 |
| Docket Number | No. 1998-SC-0746-MR.,1998-SC-0746-MR. |
| Citation | 68 S.W.3d 375 |
| Parties | Steven BRAY, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Shelly R. Fears, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Counsel for Appellant.
Albert B. Chandler III, Attorney General of Kentucky, Michael G. Wilson, Assistant Attorney General, Criminal Appellate Division, Office of the Attorney General, Frankfort, Counsel for Appellee.
Appellant, Steven Bray, was convicted by a Marshall County jury of first-degree arson and two counts of murder. He was sentenced to life in prison and he appeals to this Court as a matter of right.1
On November 8, 1982, a mobile home in Marshall County burned to the ground. Found inside were the bodies of Effie York, Appellant's mother-in-law, and Audrey Bray, his wife. Both victims had received gunshot wounds to the head prior to this fire. As part of the police investigation, Appellant was sought for questioning. It was soon learned that Appellant had not been seen since the day of the crimes. Two months later, the Federal Bureau of Investigation, (FBI), became involved and a federal charge was brought against Appellant for unlawful flight to avoid prosecution. Several methods were employed by the FBI to find Appellant, including the Kentucky Eight Most Wanted List and the popular television show "America's Most Wanted." Over a decade later, in 1995, Bray was located in Toronto, Canada, where he was living under a false name, and he was extradited to Kentucky for prosecution.
Appellant was charged with two counts of murder and one count of first-degree arson by a Marshall County Grand Jury. Following a change of venue, trial was held in Calloway County. Appellant claims several errors occurred at his trial. We discuss each in turn and conclude that Appellant was denied a fair trial and his convictions are reversed.
Appellant's second claim of error is that an affidavit supporting a motion for a restraining order filed by the victim, Audrey Bray, in conjunction with a divorce petition should not have been admitted because it contained inadmissible hearsay. Appellant also argues that the motion for restraining order and the order itself are inadmissible because they reveal inadmissible prior bad acts.
The motion for restraining order was filed on June 3, 1981, one year and five months prior to the crimes and contained allegations of physical abuse. The affidavit stated, in part, that Appellant had "physically abused [the victim] in the past to the point of requiring medical attention and that she fears such physical abuse or bodily harm if he is not restrained from coming about her or occupying their residence." Appellant offered to stipulate that the motion for the restraining order and petition for divorce were filed, but objected to the contents of the affidavit. The trial court initially ruled that the business records exception to the hearsay rule, KRE 803(6),2 permitted the admission of the affidavit, and also held it admissible under KRE 804(b)(1)3 as former testimony.
While neither party has brought it to our attention, we must address Barnes v. Commonwealth,4 a case bearing close similarity to the case at bar. The defendant was on trial for the murder of his wife. Evidence was presented that two and a half years prior to her death, she had filed for divorce and sought a restraining order and executed an affidavit supporting the requested order. The affidavit recited that her husband, the defendant, had physically assaulted and threatened to kill her. Over objection, the trial court admitted the affidavit and upon his conviction, Barnes appealed to this Court. We extensively reviewed the hearsay rule and the purposes underlying its application. We stated that the essence of the rule was the absence of an opportunity to cross-examine out-of-court statements offered for the truth thereof. Concluding that the contents of the affidavit had been improperly admitted, we said:
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.5
We are unable to meaningfully distinguish between the instant case and Barnes v. Commonwealth. In each instance, the affidavit arose out of a divorce case and sought a restraining order; in each instance, the affidavit alleged past acts of physical abuse and fear of bodily harm, and in each instance, there was no opportunity to test the truthfulness of the affidavit by cross-examination.6 Although Barnes is a pre-evidence code case, the adoption of the Kentucky Rules of Evidence did not change the law in this respect.
The affidavit was inadmissible hearsay. It does not fall within the exceptions given by the trial court for its admission. KRE 803(6) is not applicable because the rule requires that the parties be acting in the normal course of business and that the information in the document is trustworthy. While, the court clerk was acting in the normal course of business by filing the motion and affidavit, the victim was not. Affidavits supporting motions for restraining orders may not be trustworthy, as parties may falsify or exaggerate the circumstances to improve the likelihood that their motion will be granted. Therefore, KRE 803(6) cannot be a basis for admitting the affidavit. Neither does the affidavit fall within KRE 804(b)(1), the hearsay exception for former testimony. The trial court noted that Appellant had been a party to the former action, but the rule requires that the testimony be taken at a hearing or deposition where cross-examination can occur. As there was no hearing or deposition, KRE 804(b)(1) is not applicable.
The Commonwealth argues that the affidavit fits within KRE 803(8),7 the public records exception to the hearsay rule. This, too, is unavailing. The affidavit was not made by a public agency pursuant to its lawful responsibility. Although the Circuit Court Clerk was under a duty to file the affidavit, Audrey Bray was the reporting party and she was under no public duty to make such a report. Accordingly, the affidavit alleging physical abuse and fear filed in support of the motion for a restraining order is outside the meaning of KRE 803(8).
Finally, Appellant contends that the affidavit contained inadmissible prior bad acts pursuant to KRE 404(b).8 However, we need not reach this issue because the affidavit does not fall within any exception to the hearsay rule.
Upon our determination that the victim's hearsay statements set forth in her affidavit for a restraining order fail to meet any exception to the hearsay rule, it is necessary to reverse Appellant's conviction for a new trial. The Commonwealth has made no serious contention that admission of the affidavit could be regarded as harmless error.
Appellant's next claim of error is that the testimony of Ernestine Goins, Audrey's sister, contained inadmissible hearsay. Goins' testimony concerned a telephone conversation she had with the victims the night they were killed. Goins stated that the victim Audrey Bray had told her that "[Appellant] was under the house ... [he] was below the house, at the foot of the hill, by the mail box and that she [Audrey] could hear him coughing and that he was lighting his cigarettes and had a flash light." Goins further testified that Effie York, her mother, had stated,
The present sense impression exception to the hearsay rule, KRE 803(1), describes the exception as "a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter." Appellant argues that Audrey did not see Appellant and so could not have perceived that it was him. The Commonwealth argues that the present sense impression does not have to be by sight, it could also be by sound, smell or other senses. For present sense impression, the statement must be made while the declarant is observing the event.9 Here Audrey stated that "she could hear him coughing and that he was lighting his cigarettes and had a flashlight." This was said while she was observing, through sight and sound, the event, Appellant's presence near her house. The trial court properly admitted the testimony concerning Audrey's statements under the present sense impression exception.
At trial, the Commonwealth argued that York's statements were admissible pursuant to the present sense impression exception. Unlike her daughter, Audrey, however, she was not observing an event or condition by her statements. York's statements described her emotional state at the moment of Appellant's approach. Statements of fear may be admissible pursuant to KRE 803(3).10 However, this hearsay exception offers no refuge for York's statement "I've never hurt or done nothing to him." This is a statement of past fact, not of present...
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