Com. v. Ferrell, 1999-SC-0341-DG.

• Decision Date: 18 May 2000
• Docket Number: No. 1999-SC-0341-DG.,1999-SC-0341-DG.
• Citation: 17 S.W.3d 520
• Parties: COMMONWEALTH of Kentucky, Appellant, v. Wilburn David FERRELL, Appellee.
• Court: United States State Supreme Court — District of Kentucky

17 S.W.3d 520

COMMONWEALTH of Kentucky, Appellant, v. Wilburn David FERRELL, Appellee.

No. 1999-SC-0341-DG.

Supreme Court of Kentucky.

May 18, 2000.

A.B. Chandler, III, Attorney General, Dana M. Todd, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellant.

Herbert T. West, Lexington, Counsel for Appellee.

ISSUE

KELLER, Justice.

During Ferrell's trial testimony, the trial court sustained an objection by the Commonwealth and did not allow Ferrell to answer a question asked by his counsel. Ferrell's counsel then informed the trial court of the nature of what Ferrell's answer to the question would be, but Ferrell himself did not make a specific offer of his answer by way of avowal. Was Ferrell's avowal testimony necessary to preserve the trial court's ruling for appellate review? Because we cannot determine admissibility and prejudice issues on appeal without this witness's testimony before us, we hold that an avowal by the witness, not the attorney, is necessary to preserve the error.

BACKGROUND

At Ferrell's jury trial on a charge of second degree escape¹ from Blackburn Correctional Complex in Fayette County, unchallenged evidence demonstrated that after serving one (1) month of a one (1) year sentence Ferrell walked away from the prison without permission prior to the 9:00 p.m. "lockdown" in his dormitory, and authorities recaptured him in Louisville the following day. Ferrell alleged in his defense that he fled the prison because other inmates had threatened him and caused him to fear for his life, and, therefore, he made a "choice of evils"² which would entitle him to a not guilty verdict.

Ferrell testified in his own defense and described a "clique" of five inmates with whom he was initially housed at the Blackburn Correctional Complex who intimidated and threatened him. Ferrell described one incident where a member of the group vandalized a phone which he used to phone his wife daily and then the group surrounded him as he attempted to use another phone. On another occasion, one member of the group allegedly hit and poked Ferrell in the back with a tray while in line at the mess hall. Ferrell claimed that he repeatedly and unsuccessfully sought assistance both from the prison guards and prison case workers who advised him to stand up for himself physically against the group but also advised him that a physical altercation with other inmates could extend the length of his incarceration. Eventually, however, Ferrell secured an administrative relocation to another dormitory, but within a few days, three members of the group were also relocated to the new dormitory.

During his direct examination, Ferrell's attorney attempted to solicit testimony from him relating to specific threats which he received:

Defense: Now, you said they were making some threats, can you tell me what specifically people were saying to you? Ferrell: One of the guys that was involved with them came to me. They moved him right over top of me in Al. He came to me and he told me he said "You seem like a pretty good guy — Commonwealth: Your honor, I'm going to object to the —

Judge: Sustained

Commonwealth: (continuing) — hearsay. Judge: Sir, you may not testify as to anything anyone said to you unless that person is here to testify.

Ferrell: O.K., I'm sorry.

Defense: But, your Honor ... if we could approach on this.

[The attorneys then conferred at the bench]

Defense: Your Honor, we're asking him to testify to statements which led to his frame of mind. We believe that he had reason to fear these inmates. What he's about to testify to is that one of these individuals was going to warn him of specific actions that was planned to take against him.

Commonwealth: Your Honor, I would object to him being able to testify to that. If that individual actually warned him, they could have called him to testify here, and I've let a lot of hearsay go already. And I think he's stated that he had some conflicts, but I would object to him being permitted to testify as to what somebody else told him, especially for the fact that he's testified for it as the truth — that he was under this threat.

Defense: We understand that it might be hearsay, your Honor, but we — referring to the matter of self-defense, even hearsay is available if it relates to the person's state of mind as to what they reasonably might expect as a need to defend themselves.

Commonwealth: I don't think we have an issue of self-defense here.

Judge: I think that's ... I've had a hard time following this. We've already had a lot of testimony about this man, Smitty, whoever that is —

Commonwealth: I should have objected earlier.

Judge: (continuing) — and this guard named "Red." Clearly those people are available if, in fact, they said these things. I don't think it's fair to let this defendant get into all of this stuff. If you all had wanted to get those people here, you could have gotten them here, so I'm sustaining the objection.

When the testimony continued, Ferrell testified that he had personally observed the "same crew whup a forty-seven (47) or forty-eight (48) year old guy" in the presence of a prison guard who did not intervene. After a verbal altercation with a member of the group, Ferrell claimed that he again requested assistance from officers and case workers without success. Ferrell testified that on the night he left Blackburn Correctional Complex he found a razor blade placed on his bed, which, in prison parlance, communicates a death threat to the recipient. Ferrell explained that he took the threat seriously because he felt that he would receive no protection from the prison after "lockdown," as only one guard patrolled three floors in his dormitory, and he fled the prison because of this threat.

Ferrell's trial counsel did not ask the judge to allow him to question Ferrell by way of avowal outside the presence of the jury as to the specific words of the threats communicated to his client.

The trial court found the evidence sufficient to instruct the jury as to Ferrell's "choice of evils" defense, but the jury found Ferrell guilty and recommended a five year sentence on the second degree escape conviction. The jury recommended a total sentence of sixteen (16) years based on Ferrell's status as a first degree persistent felony offender, and the trial court followed the jury's recommendation. Ferrell appealed to the Court of Appeals, which reversed the conviction on the basis that the trial court should have permitted Ferrell to answer his counsel's question regarding the specific threats communicated to him because such threats would not constitute hearsay as the defense sought their admission not for the truth of the matter asserted, but rather to demonstrate Ferrell's state of mind. The Commonwealth sought discretionary review in this Court, which we granted, and we now reverse the Court of Appeals.

ANALYSIS

KRE 103 outlines the procedures for preserving for appellate review questions regarding trial court rulings as to the admission of evidence, testimonial or otherwise:

(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected; and

. . .

(2) Offer of proof. In case the ruling is one excluding evidence, upon request of the examining attorney, the witness may make a specific offer of his answer to the question.

(b) Record of offer and ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.³

Rule of Criminal Procedure 9.52 describes this procedure with language that closely tracks KRE 103 in the context of jury and non-jury trials when the trial court sustains an objection to certain testimony:

In an action tried by a jury, if an objection to a question propounded to a witness is sustained by the court, upon request of the examining attorney, the witness may make a specific offer of his or her answer to the question. The court shall require the offer to be made out of the hearing of the jury. The court may add such other or further statement as clearly shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. In actions tried without a jury the same procedure may be followed, except that the court upon request shall take and report the evidence in full, unless it clearly appears that the evidence is not admissible on any ground or that the witness is privileged.⁴

In Partin v. Commonwealth,⁵ this Court explained that trial attorneys in Kentucky must offer avowal testimony from the witness himself or herself in order to preserve such an issue for appellate review:

A review of the record discloses that appellant did not request that an examination be conducted outside the presence of the jury and offer the testimony by avowal under RCr 9.52. As stated in Cain v. Commonwealth, Ky., 554 S.W.2d 369 (1977), "without an avowal to show what a witness would have said an appellate court has no basis for determining whether an error in excluding his proffered testimony was prejudicial." Counsel's version of the evidence is not enough. A reviewing court must have the words of the witness. As a result, we find this issue has not been preserved.⁶

In the case now before us, the Court of Appeals acknowledged this Court's holding in Partin but believed the evidence in this case met an exception it...