Bray v. Com.

• Decision Date: 22 December 2005
• Docket Number: No. 2003-SC-0656-MR.,2003-SC-0656-MR.
• Citation: 177 S.W.3d 741
• Parties: Steven BRAY, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.
• Court: United States State Supreme Court — District of Kentucky

177 S.W.3d 741

Steven BRAY, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.

No. 2003-SC-0656-MR.

Supreme Court of Kentucky.

September 22, 2005.

Rehearing Denied December 22, 2005.

COPYRIGHT MATERIAL OMITTED

Thomas M. Ransdell, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Counsel for Appellant.

Gregory D. Stumbo, Attorney General, Brian T. Judy, Assistant Attorney General, Frankfort, Counsel for Appellee.

Opinion of the Court by Justice COOPER.

In the early morning hours of November 8, 1982, a mobile home in Marshall County, Kentucky, burned to the ground. Inside, police found the bodies of Audrey Bray and her mother, Effie York, each with a gunshot wound to the head. Appellant, Steven Bray, who was Audrey's husband and Effie's son-in-law, was charged with the crimes.

In August 1998, a Marshall Circuit Court jury convicted Appellant of two counts of murder, KRS 507.020(1), and one count of arson in the first degree, KRS 513.020, and sentenced him to life in prison for each conviction. In Bray v. Commonwealth, 68 S.W.3d 375 (Ky.2002), we reversed those convictions and sentences and remanded for a new trial. Following a change of venue to the Christian Circuit Court, Appellant was retried and again convicted of two counts of murder and one count of arson in the first degree. He was sentenced to life imprisonment for each murder conviction and to forty years imprisonment for the arson conviction. He appeals to this court as a matter of right, Ky. Const. § 110(2)(b), asserting the following claims of error: (1) admission of certain hearsay statements in violation of his Sixth Amendment right to confrontation; (2) insufficiency of the evidence to support his convictions; (3) denial of his motion for a continuance for the purpose of obtaining an independent competency evaluation; (4) failure to hold a competency hearing after ordering that a competency evaluation be performed by the Kentucky Correctional Psychiatric Center (KCPC) or its designee; and (5) failure to declare a mistrial after the prosecutor introduced evidence of Appellant's other bad acts.

I. CONFRONTATION.

Just before midnight on November 7, 1982, Ernestine Goins, a resident of Alabama, received a telephone call from her sister, Audrey Bray. Audrey told Goins that she was "scared" and needed to talk. Audrey told Goins that she was looking out her front windows and could see Appellant sitting at the bottom of the hill. She said that he had been sitting there for "quite a while" and that she knew it was Appellant because she heard him coughing and could see him lighting his cigarettes. She stated that she could see Appellant carrying a flashlight and that she "feared for her life." Goins told her to call emergency services, but Audrey responded "I done called, and they won't come because it's a domestic problem and the law won't get involved until there has been someone hurt."

On Appellant's first appeal, we held that Audrey's statements identifying Appellant as the person sitting near her residence were properly admitted pursuant to the "present sense impression" exception to the hearsay rule. KRE 803(1); Bray, 68 S.W.3d at 381. During the interim, the United States Supreme Court decided Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), holding that the Confrontation Clause of the Sixth Amendment forbids admission of all¹ testimonial hearsay statements against a defendant at a criminal trial, unless the witness is unavailable and the defendant has had a prior opportunity for cross-examination. Id. at 68, 124 S.Ct. at 1374. Thus, the threshold issue under Crawford is whether Audrey's hearsay statements were testimonial.²

To provide guidance for lower courts, Crawford explained:

The text of the Confrontation Clause . . . . applies to "witnesses" against the accused — in other words, those who "bear testimony." "Testimony," in turn, is typically "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.

Id. at 51, 124 S.Ct. at 1364 (internal citations omitted). The Court stated that, at a minimum, the term "testimonial" applies to police interrogations and to prior testimony, whether at a preliminary hearing, before a grand jury, or at a former trial. Id. at 68, 124 S.Ct. at 1374. However, because the statement at issue in Crawford, a statement given under custodial interrogation by police, was "testimonial under any definition," id. at 61, 124 S.Ct. at 1370, the Court "[left] for another day any effort to spell out a comprehensive definition of `testimonial.'" Id. at 68, 124 S.Ct. at 1374.

Crawford endorsed the view that statements were testimonial if, e.g., they "were made under circumstances which would lead an objective witness reasonably to believe that the statement[s] would be available for use at a later trial." Id. at 52, 124 S.Ct. at 1364. The circumstances of the case sub judice did not present that situation. In Crawford, the declarant's statements were directed to police and in response to questioning. Id. at 38-39, 124 S.Ct. at 1357. Audrey Bray's statements, on the other hand, were spontaneous and were directed to her sister. See United States v. Lee, 374 F.3d 637, 645 (8th Cir.2004) ("[Co-defendant's] statements to his mother do not implicate the core concerns of the confrontation clause."); United States v. Manfre, 368 F.3d 832, 838 n. 1 (8th Cir.2004) (statements were nontestimonial because they "were made to loved ones or acquaintances and are not the kind of memorialized, judicial-process-created evidence of which Crawford speaks"); People v. Butler, 127 Cal.App.4th 49, 25 Cal.Rptr.3d 154, 161-62 (2005) (statements held not testimonial where "[n]o government official was present . . . . [and][t]he statements were made spontaneously to co-workers."); People v. Coleman, 16 A.D.3d 254, 791 N.Y.S.2d 112, 113-14 (N.Y.App.Div.2005) (statements held not testimonial where, although made to police, "did not result from structured questioning"); State v. Staten, 364 S.C. 7, 610 S.E.2d 823, 836 (App.2005) (statements held not testimonial where they were made to declarant's cousin and roommate). Audrey Bray's statements were not made under formal conditions that would give a witness time for reflection; they bear greater resemblance to "casual remark[s] to an acquaintance." Crawford, 541 U.S. at 51, 124 S.Ct. at 1364.

Many courts have held that statements made to a 911 (emergency) telephone operator under similar circumstances are not testimonial in nature. See, e.g., State v. Wright, 686 N.W.2d 295, 302-03 (Minn.Ct.App.2004) (statements to 911 operator held nontestimonial where no evidence suggested the call was handled by the 911 operator under a formalized investigatory protocol, and the victims were providing information for immediate intervention and not for eventual prosecution); Coleman, 791 N.Y.S.2d at 113 (statements made to 911 operator held nontestimonial where declarant's "primary motivation was to call for urgent assistance, and not to phone in an anonymous accusation"); State v. Mason, 127 Wash.App. 554, 110 P.3d 245, 249 (2005) (statements made to 911 operator held nontestimonial because they were "made while in peril for the purpose of seeking protection, rather than for the purpose of bearing witness").

Appellant asserts that because Goins lived in Alabama and could not have prevented the crime, the only plausible reason for the telephone call was testimonial, i.e., to let Goins know that if she (Audrey) were subsequently killed, Appellant was the perpetrator. We disagree. Both the content and the context of the conversation indicate that Audrey telephoned Goins in the throes of fear — not to provide evidence for use at a future trial, but to seek advice and assurance. She had already sought help from the police to no avail. Her frantic statements to Goins describing her ongoing observations were not indicative of the calculated reflections engaged in by one seeking to preserve evidence.

In United States v. Arnold, 410 F.3d 895 (6th Cir.2005), statements to a 911 dispatcher that defendant had threatened her with a gun were held to be testimonial under Crawford because the declarant would reasonably expect the statements to be used to prosecute the defendant. Id. at 903-04. Arnold explained that, under its facts, "it would be antithetical . . . to suggest that [declarant] made the statement for any other reason than to establish that the alleged incidents occurred." Id. at 903. At first blush, Arnold appears to support Appellant's contention. However, in United States v. Cromer, 389 F.3d 662 (6th Cir.2004), the Sixth Circuit explained that "in the case of a crime committed over a short period of time, a statement . . . made before the crime is committed . . . almost certainly is not testimonial." Id. at 673 (quoting Richard D. Friedman, Confrontation: The Search for Basic Principles, 86 Geo. L.J. 1011, 1042-43 (1998)). In this case, Audrey's statements to her sister were made prior to the crime.³ A declarant's fearful statements over the telephone that a crime may occur do not alone establish "circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial . . . ." Crawford, 541 U.S. at 52, 124 S.Ct. at 1364. The statements at issue here were not testimonial in nature, thus not within the type of hearsay absolutely precluded by Crawford.

II. SUFFICIENCY OF THE EVIDENCE.

At trial, Appellant moved for directed verdicts of acquittal on all charges. His motions were overruled. On a motion for a directed verdict of acquittal, all fair and reasonable inferences are drawn in the Commonwealth's favor. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991). On appellate review, we determine whether,...