Dodson v. Com., 87-SC-308-MR

• Decision Date: 30 June 1988
• Docket Number: No. 87-SC-308-MR,87-SC-308-MR
• Citation: 753 S.W.2d 548
• Parties: David S. DODSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 548

753 S.W.2d 548

David S. DODSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 87-SC-308-MR.

Supreme Court of Kentucky.

June 30, 1988.

Russell J. Baldani, Fayette County Legal Aid, Inc., Lexington, for appellant.

Frederic J. Cowan, Atty. Gen., Elizabeth Myerscough, Asst. Atty. Gen., Frankfort, for appellee.

VANCE, Justice.

The appellant was convicted on two charges of first-degree robbery and as a second-degree persistent felon.

He contends on appeal that the admission of an out-of-court statement of a codefendant who refused to testify at trial was prejudicial error. The codefendant, Timothy Reed, had negotiated a plea bargain whereby he was sentenced to ten years' imprisonment on one charge of burglary and six other counts of the indictment against him were dismissed. His confession to the investigating officers implicated the appellant as the person who was with him during the commission of four robberies, including the two from which this appeal is prosecuted.

The appellant contends that because Timothy Reed refused to testify in court, he was denied his right to be confronted with his accuser and that he was denied the right to cross-examine the accuser.

Timothy Reed was arrested for his participation in several burglaries. He confessed and named the appellant as a participant with him in the two robberies for which appellant has been convicted. At appellant's trial, Reed was called as a witness and refused to testify. The Commonwealth was then permitted to introduce into evidence statements which Reed had made to police officers in his confession which implicated the appellant in the robberies.

The Commonwealth contends that these out-of-court statements of codefendant Reed implicating the appellant were admissible in evidence against appellant as a statement of the codefendant against his penal interests pursuant to Federal Rule of Evidence 804(b)(3) which has been adopted by this court in Crawley v. Commonwealth, Ky., 568 S.W.2d 927 (1978).

The admissibility of extra-judicial statements against interest prior to the decision in Crawley v. Commonwealth, supra, were related to statements against the declarant's pecuniary or proprietary interests. Crawley expanded this exception to the hearsay rule to include declarations against the penal interests of the declarant, and it expressly overruled all prior cases which held to the contrary.

The out-of-court statement which was the subject of the Crawley opinion was a statement which tended to exculpate the defendant, not inculpate him as does the statement at issue here. The court held that the out-of-court exculpatory statement was properly excluded because there was no corroborating evidence which clearly established the trustworthiness of the statement. It appears that the statement would have been inadmissible under the law of Kentucky before the adoption of FRE 804(b)(3), and under the circumstances of Crawley it was inadmissible after the rule was adopted. The adoption of FRE 804(b)(3) was entirely unnecessary to the decision in Crawley. Nevertheless, FRE 804(b)(3) was adopted, and we have not been asked here to reconsider the Crawley decision.

Federal Rule of Evidence 804(b)(3) provides:

"The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

....

"(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement."

This rule makes no distinction between statements against interest by an unavailable witness which are inculpatory and those which are exculpatory except that it provides that exculpatory statements are not admissible in evidence unless corroborating circumstances clearly indicate the trustworthiness of the statement.

There are a number of reasons which sometime cast doubt on the credibility of an inculpatory statement of a confessing codefendant who has negotiated a plea bargain for himself. These reasons were categorized in United States v. Sarmiento-Perez, 633 F.2d 1092 (5th Cir.1981) as follows:

1) the confession is custodial and therefore made under potentially coercive circumstances that could not be examined at trial;

2) the desire of the confessor to curry favor from the arresting officer;

3) the confessor's attempt to alleviate the culpability by implicating others;

4) the confessor may feel enmity for others in a conspiracy gone awry;

5) the confessor's desire for revenge against the third person;

6) the confessor's ability to ultimately entertain a favorable plea agreement.

For these reasons we think it is equally important that a statement against interest made by an unavailable witness which inculpates another person should likewise not be admissible unless there are corroborating circumstances which clearly indicate its...