Crane v. Com.

• Decision Date: 14 May 1992
• Docket Number: No. 91-SC-122-MR,91-SC-122-MR
• Citation: 833 S.W.2d 813
• Parties: Major CRANE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 813

833 S.W.2d 813

Major CRANE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 91-SC-122-MR.

Supreme Court of Kentucky.

May 14, 1992.

Rehearing Denied Aug. 28, 1992.

Frank W. Heft, Jr., Chief Appellate Defender of the Jefferson Dist. Public Defender, Larry D. Simon, Appellate Public Advocate, Daniel T. Goyette, Jefferson Dist. Public Defender, Louisville, for appellant.

Chris Gorman, Atty. Gen., Ian G. Sonego, John S. Gillig, Asst. Attys. Gen., Criminal Appellate Div., Frankfort, for appellee.

SPAIN, Justice.

This is a direct appeal from a judgment of the Jefferson Circuit Court sentencing the appellant, Major Crane, to thirty years' imprisonment following his conviction by a jury for wanton murder. A liquor store clerk was shot in the head and killed, apparently during an attempted robbery.

A forty-year sentence imposed on appellant following an earlier trial was set aside by the federal courts on constitutional procedural grounds. ¹ There is no contention that those original errors were repeated at the second trial.

The first two of the five claims of error raised in this appeal involve the admission of an out-of-court statement of an accomplice implicating appellant in an unrelated shooting and a statement to the court by the attorney for said accomplice during the latter's guilty plea to said shooting. Next, the appellant argues that it was error for the trial judge not to instruct the jury on the lesser-included offenses of second-degree manslaughter and reckless homicide. Fourth, it is claimed that the trial judge was disqualified from presiding over the second trial. Finally, it is argued that reversible error was committed when a deputy clerk in the jury's presence referred to the fact that the appellant had appealed the order of the juvenile court transferring jurisdiction of his case to the circuit court. We will address these issues in the order listed.

On August 14, 1981, one week after the liquor store clerk was found murdered, the appellant, then age sixteen, was taken into custody by the police after he was identified as an accomplice in an unrelated service station burglary. After being advised of his rights, Crane agreed to talk to the police. Over the course of the next two and one-half to three hours, during which he was again advised of his rights, he admitted involvement in several different robberies and shootings, including the Keg Liquor Store, a hardware store, and one in which the victim was a jogger. Crane identified one Gregory Powell as his accomplice in the robbery of a woman of her purse at gunpoint in the Big A Shopping Center and in the shooting of the jogger. Although in his pretrial statement to the police Crane claimed it was he who took the purse and also admitted that he shot the jogger, later, when he testified during his trial, he recanted his admissions and claimed that Powell took the purse and shot the jogger.

In rebuttal, the Commonwealth sought to call Powell to testify that Crane shot the jogger as Powell had stated in a pretrial statement to the police. On advice of counsel, however, Powell declined to testify, invoking his Fifth Amendment privilege. Thereupon, the Commonwealth moved the trial court to declare Powell unavailable to testify and to admit Powell's previous statement under Federal Rule of Evidence (FRE) 804(b)(3) (adopted by Crawley v. Commonwealth, Ky., 568 S.W.2d 927 (1978)), as a statement against penal interest, inasmuch as Powell had implicated himself at least as an accomplice. The trial court overruled the defense objection and admitted Powell's statement.

Crane insists that the admission of Powell's out-of-court statement denied appellant his right of confrontation and cross-examination under Section 11 of the Kentucky Constitution and violated his rights under the Sixth and Fourteenth Amendments to the U.S. Constitution. We disagree and find no error.

In the first place, it was Crane, not the Commonwealth, who injected into this trial the entire matter of the unrelated shooting of the jogger. Of course, the appellant did so as a matter of strategy to help cast doubt on his now recanted confession, arguing that since it was false about his shooting the jogger it could be equally false about his killing the liquor store clerk.

When Crane himself testified about the collateral shooting of the jogger by Powell, he opened the door for the Commonwealth to offer evidence in rebuttal. As such, the admission of Powell's out-of-court statement was for a non-hearsay purpose; i.e., to corroborate appellant's own confession, not to prove per se who actually shot the jogger. Moreover, the statement of Powell was not introduced as substantive evidence against appellant for the murder of the liquor store clerk, the only crime charged in the trial in progress.

The situation here is remarkably similar to that in the case of Tennessee v. Street, 471 U.S. 409, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985). There the United States Supreme Court held that Street's rights under the Confrontation Clause were not violated by the introduction of the confession of an accomplice for the non-hearsay purpose of rebutting Street's testimony that his own confession was coercively derived from the accomplice's statement. In that case the Court stated in part (471 U.S. at 413, 414, 415, 105 S.Ct. at 2081, 2082) This case is significantly different from the Court's previous Confrontation Clause cases such as Ohio v. Roberts, 448 U.S. 56 [100 S.Ct. 2531, 65 L.Ed.2d 597] (1980), Dutton v. Evans, 400 U.S. 74 [91 S.Ct. 210, 27 L.Ed.2d 213] (1970), and Bruton v. United States, 391 U.S. 123 [88 S.Ct. 1620, 20 L.Ed.2d 476] (1968). Confrontation Clause issues arose in Roberts and Dutton because hearsay evidence was admitted as substantive evidence against the defendants. And in Bruton, the Court considered whether a co-defendant's confession, which was inadmissible hearsay as to Bruton, could be admitted into evidence accompanied by a limiting instruction.

In this case, by contrast, the prosecutor did not introduce Peele's out-of-court confession to prove the truth of Peele's assertions.

* * * * * *

The nonhearsay aspect of Peele's confession--not to prove what happened at the murder scene but to prove what happened when respondent confessed--raises no Confrontation Clause concerns.

* * * * * *

When respondent testified that his confession was a coerced imitation, therefore, the focus turned to the State's ability to rebut respondent's testimony. Had the prosecutor been denied the opportunity to present Peele's confession in rebuttal so as to enable the jury to make the relevant comparison, the jury would have been impeded in its task of evaluating the truth of respondent's testimony and handicapped in weighing the reliability of his confession. Such a result would have been at odds with the Confrontation Clause's very mission--to advance "the accuracy of the truth-determining process in criminal trials."

Moreover, unlike the situation in Bruton, there were no alternatives that would have both assured the integrity of the trial's truth-seeking function and eliminated the risk of the jury's improper use of evidence. [Citations and footnotes omitted. Emphasis added.]

In our opinion, the trial court's decision to admit Powell's out-of-court statement was not clearly erroneous either as to his unavailability or as to the statement's reliability.

As a part of his effort to repudiate his confession and to show that it was false in numerous particulars, Crane sought to prove that he had confessed to other unrelated crimes (such as the assault on the jogger and the taking of the lady's purse) for which others and not he had been actually prosecuted and convicted. In this connection, the defense called a deputy circuit court clerk and had her testify as to various indictments against Gregory Powell and others, reading the charges and quoting from the court records as to convictions and sentences. This tactic was pursued regarding the shooting of the jogger and the jury was informed that appellant had not even been indicted for this crime, notwithstanding his confession thereto. Rather, it was shown that Powell, pursuant to a plea agreement with the Commonwealth, entered a guilty plea to first-degree assault of the jogger. With the evidence as to the unrelated assault of the jogger left in this posture, the appellant, of course, cast doubt with the jury as to Powell's out-of-court statement naming appellant as the shooter as well as casting doubt on appellant's own confession that he had done the shooting. At the same time, this evidence bolstered appellant's trial testimony wherein he recanted the confession and pointed to Powell as the trigger-man in the jogging case.

As rebuttal, the prosecutor on cross-examination of the records clerk asked her to read statements of Powell's attorney made to the judge as a part of Powell's guilty plea, along with some of the colloquy between Powell and the judge. The gist of the statements was that Powell was not admitting necessarily that he had fired the weapon at the jogger, but rather that he was only admitting that he was a participant in the offense along with others.

Appellant objected to this evidence as hearsay but the trial judge overruled the objection on the grounds that the excerpts from the colloquy were part of an official record.

Once again it is clear that appellant opened the door for the admission of this evidence. This Court has repeatedly held that, when the defendant only introduces part of a document or record, the Commonwealth can introduce other portions to refute that offered by the defendant. Price v. Commonwealth, 294 Ky. 708, 172 S.W.2d 576 (1943); Winn v. Commonwealth, Ky., 303 S.W.2d 275 (1957); Mitchell v. Commonwealth, Ky., 781 S.W.2d 510 (1989).

Since the appellant chose to introduce the issue of Powell's involvement in the assault on the jogger and introduced the record of Powell's guilty...