Chestnut v. Com., No. 2007-SC-000154-MR.

• Decision Date: 24 April 2008
• Docket Number: No. 2007-SC-000154-MR.
• Citation: 250 S.W.3d 288
• Parties: Julian CHESTNUT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

250 S.W.3d 288

Julian CHESTNUT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2007-SC-000154-MR.

Supreme Court of Kentucky.

April 24, 2008.

Daniel T. Goyette, Louisville Metro Public Defender, Cicely Jaracz Lambert, Deputy Appellate Defender, Louisville, KY, Counsel for Appellant.

Jack Conway, Attorney General of Kentucky, Kenneth Wayne Riggs, Assistant Attorney General Office of Criminal Appeals, Office of the Attorney General, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice SCOTT.

Appellant, Julian Chestnut, was convicted by a Jefferson Circuit Court jury on four counts of burglary in the second degree, receiving stolen property over three hundred dollars, possession of a controlled substance, and illegal possession of drug paraphernalia. The jury recommended an aggregate sentence of seventy-seven (77) years imprisonment, as enhanced by persistent felony offender status. Appellant now appeals as a matter of right. Ky. Const. § 110(2)(b).

Appellant raises eight claims of error: 1) that investigative hearsay testimony was allowed at trial, violating his confrontation rights; 2) that he was denied due process because of the Commonwealth's failure to disclose an incriminating statement made by him; 3) that the trial court abused its discretion in permitting the Commonwealth's motion to join offenses; 4) that the trial court erred in permitting the peremptory strike of a juror in violation of Batson; 5) that the trial court abused its discretion in allowing the introduction of prejudicial photographs; 6) that Appellant was denied his due process rights when the jury was allowed to consider excluded evidence during deliberations; 7) that the trial court erred in failing to make findings of fact at a suppression hearing; and 8) that Appellant was denied due process due to faulty jury instructions on the illegal use or possession and persistent felony offender charges. Upon review, having concluded that the Commonwealth's failure to disclose an incriminating oral statement of the defendant per RCr 7.24(1) impermissibly tainted the Appellant's defense in this case, we hereby reverse the conviction and sentencing and remand this matter for a new trial.

I. BACKGROUND

The following facts center on the criminal activity of Appellant, Julian Chestnut, during the course of a nine-day period in August 2004. In the early morning hours of August 18, 2004 a series of burglaries were committed on Mt. Rainier Drive in Jefferson County. At that time, officers were dispatched to respond to a call for a burglary in progress. Officer Ebersol was one of the officers who responded to the call. Once in the area, Ebersol noticed a gray Chevrolet parked outside of the residence from which the call had been made. The gray Chevrolet then started its engine and sped away. Ebersol gave chase in his cruiser, eventually catching up with the car approximately a mile later. Appellant was the driver and sole occupant of the gray Chevrolet.

Upon being stopped, Appellant told Ebersol that he was lost and had turned around in the subdivision. Subsequently, a show-up identification was conducted with the owner of the residence, Anne Boldrick, and the back-up officer, Detective Mellon. Appellant was then arrested and taken for further questioning. In total, three burglaries occurred on Mt. Rainier Drive on the night in question. All burglaries were perpetrated in a similar manner and with similar items being taken, i.e. wallets, purses, money, cell phone, etc.

Appellant's partially estranged wife, Shakita, was also indicted for the Mt. Rainier burglaries and pled guilty under a complicity theory. According to Shakita's testimony, she and Appellant and had spent the day together, drinking and getting high smoking crack cocaine. Upon running out of drugs, the two decided to go get money to obtain more drugs.

Testimony indicates that the two went to a neighborhood with nice homes where Appellant told Shakita to wait in the car while he got some money from a "friend." Shakita testified that she became bored with waiting and decided to burglarize some homes. She was confronted in one of the homes by the homeowner and fled. Thereupon, she called Appellant on a cell phone which she had stolen from one of the residences. At this point, however, Appellant was already in the custody of police.

Appellant, on the other hand, claims that he was working at the Waffle House on the night in question, and that he was only in the area to pick up Shakita, who called him indicating that she had burglarized some homes and needed a ride. Appellant denied ever being in the Mt. Rainier subdivision.

On August 13, 2004, the home of Richard LeBlanc on Falls Creek Rd., was burglarized. In the early morning hours, Richard's son noticed a gray Chevrolet parked in front of the house. Upon waking, the family noticed that a purse, laptop computer, and some distinctive, personalized men's jewelry were missing. A pawn shop record showed Appellant pawned the jewelry.

On August 20, 2004, a home was burglarized on Mockingbird Lane in Jefferson County. Additionally, their black Lexus sedan was stolen. Two days later on August 22, 2004, officers on narcotics patrol in west Louisville pulled the black Lexus over. Appellant was the passenger in the car. Upon being stopped, testimony indicates Appellant shouted to the driver "go, go, go!" Appellant had a key to the Lexus in his pocket along with a bag of cocaine and a used crack pipe. The Lexus was the same automobile stolen from the Mockingbird Lane residence two days earlier.

II. ANALYSIS

A. Appellant's confrontation rights were not denied because the testimony was non-hearsay offered for the purpose of explaining the development of Appellant as a suspect in the case and thus not investigative hearsay.

Appellant argues that testimony presented at trial by Officers Ebersol and Mellon is investigative hearsay, and that, as such, his confrontation rights were violated by its admission. We disagree.

During trial Appellant objected to the introduction of certain testimony by Officer Ebersol indicating that after the stop of Appellant in the Mt. Rainier Dr. area, a "show-up" identification was held. Additionally, Appellant objected to testimony by Detective Mellon that he took Ms. Boldrick to the scene of the stop to conduct the "show-up" identification, and that the purpose of a "show-up" is to see if a witness can identify a suspect. The officers also testified that Appellant was arrested following the "show-up." The trial judge sustained Appellant's objections to the extent that no hearsay statements of Ms. Boldrick regarding identification would be admissible. Thus, no identification testimony was presented regarding what Ms. Boldrick said about Appellant.

It is well-established that investigative hearsay is still, fundamentally, hearsay and, thus, disallowed. See, e.g., Sanborn v. Commonwealth, 754 S.W.2d 534, 541 (Ky.1988), overruled on other grounds by Hudson v. Commonwealth, 202 S.W.3d 17 (Ky.2006). However, it is equally evident that not all testimony from a police officer concerning an investigation is hearsay.

This Court accepted the plurality holding of Sanborn regarding investigative hearsay and the verbal acts doctrine in Brewer v. Commonwealth, 206 S.W.3d 343, 351 (Ky.2006), therefore rendering it binding precedent. Thus, the rule on investigative hearsay which Sanborn announced proves dispositive. "The rule is that a police officer may testify about information furnished to him only where it tends to explain the action that was taken by the police officer as a result of this information and the taking of that action is an issue in the case." Sanborn, 754 S.W.2d at 541. Such testimony is then admissible not for proving the truth of the matter asserted, but to explain why a police officer took certain actions. Young v. Commonwealth, 50 S.W.3d 148, 167 (Ky.2001). However, Sanborn places a short leash on the extent to which investigative hearsay, or as more appropriately styled, investigative verbal acts, may be used. It limits such testimony

to circumstances where the taking of action by the police is an issue in the case and where it tends to explain the action that was taken as a result of the hearsay information. In such circumstances, hearsay may be admissible to prove why the police acted in a certain manner, but not to prove the facts given to the officer.

Gordon v. Commonwealth, 916 S.W.2d 176, 179 (Ky.1995).

Here, development of Appellant as a suspect in the case, and his subsequent arrest were certainly at issue, particularly in light of Appellant's testimony at trial. Appellant testified that he was never in the Mt. Rainier subdivision. However, at trial, testimony was presented that police saw a gray Chevrolet in the area of the burglary call they responded to, that the car drove away and was pursued by the police and subsequently stopped. Moreover, Appellant accused Officer Ebersol of lying during his testimony. Therefore, why the police arrested Appellant was clearly at issue.

Thus, the complained of testimony concerning the show-up identification also served to explain Appellant's arrest. The testimony was not offered to prove the truth of what Boldrick told the officers. Rather, it was offered to prove the officers' motive for arresting Appellant. In the present instance, what was not said concerning the "show-up" identification is as important as what was said. There was no hearsay testimony presented purporting to show that what Boldrick told the officers was true or untrue. The officers' testimony concerned only what they did on the night in question, not that Boldrick identified the Appellant. Therefore, Appellant was not denied his right to confrontation. See Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); Norton v. Commonwealth, 890 S.W.2d 632, 635 (Ky.App.1994) (noting that the admissibility of out of court statements for...