Carter v. Com., 88-SC-172-MR

• Decision Date: 28 September 1989
• Docket Number: No. 88-SC-172-MR,88-SC-172-MR
• Citation: 782 S.W.2d 597
• Parties: Claude Earn CARTER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 597

782 S.W.2d 597

Claude Earn CARTER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 88-SC-172-MR.

Supreme Court of Kentucky.

Sept. 28, 1989.

Rehearing Denied Feb. 8, 1990.

As Modified Feb. 8, 1990.

Julie Namkin, Dept. of Public Advocacy, Frankfort, for appellant.

Frederic J. Cowan, Atty. Gen., Carol C. Ullerich, Asst. Atty. Gen., Criminal Appellate Div., Frankfort, for appellee.

LEIBSON, Justice.

Claude Carter was convicted in the Logan Circuit Court of possession of marijuana and trafficking in LSD. He was sentenced to five years imprisonment for the marijuana conviction, and ten years imprisonment for the LSD conviction. Both sentences were enhanced to terms of thirteen years, a total of twenty-six years, as a first-degree persistent felony offender.

The principal issues raised on appeal involve taking and admitting into evidence the videotaped deposition of one Charles Elam, Jr., a paid police informant. Elam testified by deposition that he encountered Carter during his quest for drugs. We will summarize his testimony.

According to Elam, on November 3, 1985, he agreed to go with one Billy Driskell from Union City, Tennessee, to Elkton, Kentucky, in search of some marijuana. Elam's girlfriend also went on this excursion. As the trio was leaving the pool hall at Elkton they encountered Carter. Driskell told Elam and his girlfriend to go on to the car and wait, that he would join them in a few minutes. When Driskell joined the others in the car, he told them Carter had agreed to let them have some marijuana on credit to take to Union City and sell. Carter then left in his car while Driskell, Elam and his girlfriend followed in theirs, proceeding by different routes to Carter's house. Carter arrived first.

Driskell, alone at first, entered a trailer located beside the house. Five minutes later he came out and told Elam to come with him. Elam's girlfriend remained in the car. When they entered the trailer, Elam saw Carter sitting on a couch with a rifle across his lap. Carter opened a cabinet containing marijuana and told the two men that he would allow them to pick out ten bags to take on credit. Elam estimated there was one hundred pounds or more of marijuana in the trailer.

As they were collecting their ten bags of marijuana, Driskell told Elam that they also might be able to get some LSD for Elam. Elam then purchased eight "hits" of LSD from Carter for five dollars apiece. Driskell and Elam then put the marijuana in a tote sack and left Carter's trailer.

When Elam returned to Tennessee he gave the LSD to the Dyersburg Police Department, and informed them of the drug transaction just described. This led to Carter's arrest and the convictions now on appeal.

First, we consider the events leading up to the taking of Elam's deposition. Elam is an out-of-state witness. The deposition was taken on June 30, 1986, pursuant to motion and court order entered May 15, 1986, authorizing a videotaped deposition "for all purposes allowed pursuant to the rule of civil and/or criminal procedure." The Commonwealth utilized KRS 421.250, Kentucky's Uniform Non-Resident Witness Act to secure Elam's appearance for his deposition, pursuant to an order of court which was entered in Oklahoma directing him to attend. Elam was asked on deposition where he would be "come September of this year when this case comes to trial," to which he replied, vaguely, "Honestly I can't say, but I hope to be back in Oklahoma."

Carter's then attorney, Louis M. Waller, appeared at the deposition, but Carter did not attend. Mr. Waller stated for the record that he had written his client on June 20, 1986, advising Carter, "You may wish to be present," and that he had made other efforts to contact him, all with no success. Mr. Waller then stated he could not properly represent his client at the deposition unless Carter was available for consultation, so he would not stay for it. Waller "served notice" that he intended to withdraw as counsel. Later on he withdrew, pursuant to a motion filed July 10, 1986.

Elam was deposed, not subject to cross-examination. No subpoena for trial was ever issued on Elam, whose whereabouts were then unknown. Before trial Carter's new counsel moved to quash the deposition. At the time of trial this motion was overruled upon the Commonwealth's Affidavit that "diligent effort" to locate Elam for trial did not avail. Elam's videotaped deposition was played to the jury. It was the principal evidence proving Carter's guilt.

The Sixth Amendment to the United States Constitution, made applicable to state prosecutions by the Fourteenth Amendment, guarantees Carter the right to confront Elam as a witness against him, and the right to legal counsel. Section Eleven of Kentucky's Constitution guarantees Carter those same rights. The question is whether the use of Elam's deposition at trial violated Carter's rights.

The first problem is whether the deposition of Elam, taken without the presence of Carter or his counsel, deprived him of his right to confront Elam, as Carter asserts, or, whether Carter and his counsel effected a waiver of that right, as the Commonwealth asserts. We hold that Carter's right to confront Elam at the deposition was waived.

Ample notice of the deposition was provided to Carter's counsel. Carter's attorney appeared at the deposition and announced that he was serving notice that he would withdraw as Carter's counsel. But that motion had not yet been considered or sustained. He made a conscious decision not to remain and not to cross-examine in his representative capacity as Carter's attorney, proceeding in what he no doubt believed to be Carter's best interest. Carter's counsel knew well in advance of the deposition that Elam would be deposed as a prosecution witness, and therefore had ample opportunity to prepare for cross-examination. There was no evidence that Carter, personally, had a legal reason why he was unable to attend, and no proof that his presence would have made a difference. Carter's counsel never requested a continuance of the deposition, or objected to its being taken before he walked away from it. He could not properly obtain a tactical advantage by refusing to stay. As in Richmond v. Commonwealth, Ky., 637 S.W.2d 642, 647 (1982), Carter was not "denied an adequate opportunity of confrontation." Waiver occurred.

Appellant argues that before the deposition could be utilized the Commonwealth must establish a good faith effort to procure the personal attendance of the witness. Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). Elam's presence at the deposition was procured using the Uniform Non-Resident Witness Act, KRS 421.250, but the Commonwealth could not use the same act to arrange his presence at trial because the Commonwealth did not know his whereabouts at the time of trial. Under KRS 421.260, Elam was not subject to subpoena for trial when he was present in the jurisdiction only by reason of a court order to attend and testify by deposition. Moreover, two police officers working with the prosecution testified that, while they did not know Elam's whereabouts, they knew that Elam wanted to stay away from Kentucky because he was afraid of Carter. It is not surprising that he had vanished by trial time.

We agree with Carter it does not follow that, because Carter and his attorney waived his right to confront Elam at the deposition, his right to confront and cross-examine Elam at trial was also waived. See Barber v. Page, supra, 390 U.S. at 725, 88 S.Ct. at 13. Nevertheless, RCr 7.20 authorizes the use of a deposition in appropriate circumstances relating to unavailability, as specified therein. The decision whether the Commonwealth made a bona fide effort to have Elam present at trial is one addressed to the sound discretion of the trial court. The circumstances here do not demonstrate an abuse of discretion.

After the jury had been shown Elam's videotaped deposition, the Commonwealth called Lieutenant Rieger of the Union City, Tennessee Police Department to the stand. Rieger testified that Elam was working for his department as an informant/undercover agent for the purpose of helping to arrest persons making illicit drug deals. He was asked to tell the jury what Elam had told him about the trip he had made to Kentucky that led to Carter's arrest. Defense counsel objected on hearsay grounds. The objection was overruled. Rieger's testimony included details of what Elam had told him, and of Rieger's resultant investigation.

Arguably, some of Lt. Rieger's testimony relative to what Elam had told him should have been disallowed.

"[H]earsay is no less hearsay because a police officer supplies the evidence. In short, there is no separate rule, as such, which is an investigative hearsay exception to the hearsay rule." Sanborn v. Commonwealth, Ky., 754 S.W.2d 534, 541 (1988).

Background information supplied to a police officer may be admissible under the "verbal act" doctrine in circumstances where it has a "proper nonhearsay use" to explain "the action subsequently taken by the police officer." Id. Otherwise, as with any other witness, the officer may only repeat hearsay when to do so conforms to a recognized hearsay exception.

Nevertheless, the statements Rieger attributed to Elam did not directly name or implicate Carter. According to Rieger, Elam told him that he and Billy Driskell brought back ten pounds of marijuana packaged in plastic bags and stashed it in Driskell's car or apartment. Both parties to the conversation, Rieger and Elam, testified at trial, Rieger in person and Elam by deposition. Rieger was fully cross-examined and Elam could have been cross-examined had Carter or counsel elected to attend a deposition where there was ample opportunity to do so.

Under the circumstances, if any of Rieger's testimony was inadmissible hearsay, it was harmless error. Because the objectionable testimony merely repeated Elam's deposition,...