Fisher v. Commonwealth

Decision Date25 March 2021
Docket Number2019-SC-0738-MR
Parties Rick Aaron FISHER, Appellant v. COMMONWEALTH of Kentucky, Appellee
CourtUnited States State Supreme Court — District of Kentucky

COUNSEL FOR APPELLANT: Adam Meyer, Department of Public Advocacy.

COUNSEL FOR APPELLEE: Daniel J. Cameron, Attorney General of Kentucky, Aspen Caroline Carlisle Roberts, Assistant Attorney General.


Rick Aaron Fisher and his co-defendant, Lisa Harvey, tried jointly, were convicted by a circuit court jury of complicity to murder and tampering with physical evidence.

Fisher was sentenced to thirty years’ imprisonment consistent with the jury's recommendation, and he now appeals the resulting judgment as a matter of right.1 We affirm the judgment.

The central issue we address is whether the trial court erred in violation of Fisher's Confrontation Clause rights by admitting incriminating hearsay offered against Fisher consisting of unredacted out-of-court statements in which co-defendant Harvey incriminated herself and Fisher to a cellmate who testified at trial. The trial court ruled the Confrontation Clause was not implicated because Harvey's out-of-court statements to her cellmate were not testimonial under Crawford v. Washington and sufficient corroboration otherwise supported admissibility of the out-of-court statements under a hearsay exception. We find no error in the trial court's ruling on this issue.

On a second issue, we find no error in the trial court's admitting a jail phone call of Fisher's. Finally, we find harmless error in the Commonwealth's Attorney's improperly injecting her own testimony into the trial during questioning.


Investigators found Andrew Folena's decomposing body beaten and buried in the wooded area bordering a cornfield not far behind his house. Folena had returned home to find that his fiancée, Lisa Harvey, and two men, Fisher and Joe Goodman, had been staying in his house while he was away. Harvey had ongoing sexual relations with Fisher and Goodman, and the three apparently used methamphetamines together in Folena's house while he was away.

Goodman testified at Fisher and Harvey's joint trial that earlier on the day of the murder, Fisher and Harvey stated they would kill Folena, although Goodman did not take them seriously. Goodman testified that later that night he heard from the basement what must have been Folena trying to come through the front door of the house. Unable to get into the house that way, Folena walked around to the back of the house. After hiding in the basement for a moment, Goodman heard a commotion and looked outside to the backyard to see Fisher bludgeoning Folena with a baseball bat and Harvey positioned on top of Folena strangling him. Goodman quickly packed his things, called his ex-girlfriend to tell her to alert the police, and ran out into the cornfield. Goodman stayed there for, in his estimate, about twenty minutes, unsure of what to do. Before long Fisher found Goodman and sent him back to the house. Several days later, Goodman's ex-girlfriend finally called law enforcement officers, who performed a welfare check at the Folena residence. Fisher, Harvey, and Goodman were there when the officers arrived.

During a search, the officers found a bloody baseball bat, a metal hook tool, and work gloves. Outside, they found a fresh trail leading to the back of the property where they found a wheelbarrow, bleach bottles, a shovel, tarps, and recently disturbed earth. A cadaver-dog found Folena's body in the disturbed earth. A medical examiner determined the cause of death was a combination of blunt-force trauma and strangulation. Fisher and Harvey were charged with Folena's murder. While Goodman's DNA was found on several items of interest in the house and near the crime scene, he was not charged.


Fisher has preserved all the issues he now raises on appeal. Preserved claims of error are subject to our normal standard of review.2 Under this standard, we first determine if there is an error, and if we find error, we then determine whether it negatively affected the substantial rights of the parties.3 If the error had no such effect, we will regard it as harmless and affirm.4 If such an error has constitutional implications, we will affirm only if the error was harmless beyond a reasonable doubt.5

A. Admitting Harvey's out-of-court statements against Fisher did not violate the Confrontation Clause or the Rule Against Hearsay.

Neither of the defendants testified at their joint trial, but three of their former cell-mates did. If all three cell-mates are believed, Fisher and Harvey independently confessed to their cell-mates their own participation in the murder. Harvey's cell-mate, Tonya Dean, testified that on an occasion when she and Harvey were together in their cell, Harvey described Folena's murder, stating that two men beat Folena while or before she, Harvey, strangled him. Fisher's cell-mates testified that Fisher told them essentially the same thing, except that Fisher's account did not involve another man.6

Fisher claims the trial court erred in admitting Harvey's hearsay statement without redaction in violation of the Confrontation Clause of the Sixth Amendment of the United States Constitution. During conference at trial and in a thorough post-trial order, the trial court carefully analyzed this issue, ultimately concluding that admitting Harvey's statement against Fisher did not violate Fisher's Confrontation right. We find it worthwhile now to clarify the standards for admitting hearsay against a criminal defendant under the Confrontation Clause.

1. The Confrontation Clause applies only to testimonial hearsay statements.

As it pertains to hearsay that incriminates an accused in a criminal trial, the right of the accused under the Sixth Amendment to confront the witness against him applies only to bar those statements that can be considered "testimony" against the accused. This approach to the Confrontation right was handed down in the landmark case Crawford v. Washington .7 Crawford shifted the constitutional focus from the statement's apparent reliability to an emphasis on the context in and purpose for which the statement was originally made.8 Crawford has since assumed an important role in Confrontation Clause precedent, a body of authority that includes cases like Bruton and Richardson , discussed below.9

In Crawford , the Supreme Court of the United States held that, independently and separately from the rules of evidence,10 "the Confrontation Clause forbids admission of all testimonial hearsay statements against a defendant at a criminal trial unless the witness is unavailable and the defendant has had a prior opportunity for cross-examination."11 The central focus of Crawford was the key term testimonial as it pertains to hearsay statements offered against a criminal defendant.12 The Court elaborated on what this term meant: "The text of the Confrontation Clause ... applies to ‘witnesses’ against the accused—in other words, those who ‘bear testimony.’ ‘Testimony,’ in turn, is typically [a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ "13 It has since become clear that whether a statement is testimonial is a declarant-centric inquiry.14

Under Bruton v. United States ,15 a trial court may not admit a non-testifying co-defendant's testimonial out-of-court statement as evidence against the accused in their joint trial.16 "In the context of a joint trial, therefore, ‘the pretrial confession of one [defendant] cannot be admitted against the other unless the confessing defendant takes the stand.’ "17 Bruton simply extends to joint trials Crawford ’s prohibition against out-of-court testimony, protecting the accused in a joint trial from the incrimination of his non-testifying co-defendants hearsay statements.18

Richardson v. Marsh19 further complements Bruton in another analytical layer, in that same specific circumstance of the joint trial.20 Richardson held that redaction of a statement to omit reference to the accused may suffice for purposes of Bruton and, therefore, the protections of the Confrontation Clause.21

Before proceeding, the doctrinal connection among Crawford , Bruton , and Richardson bears discussion because each plays a relevant part in Confrontation Clause precedent pertaining to hearsay. As stated above, the Confrontation Clause addresses out-of-court statements, utterances, and assertions against the accused that are testimonial,22 a concept derived from Crawford and its progeny. " Crawford ’s progeny" includes Davis v. Washington ,23 Michigan v. Bryant ,24 and persuasive Sixth Circuit authority based on Crawford . The role of Crawford and its progeny primarily has been to elaborate on what constitutes testimony for purposes of the Confrontation Clause.25 Bruton merely extends that same Crawford -oriented protection against testimonial hearsay to the accused in a joint trial. And finally, Richardson , specifically invoked by Fisher, applies to the very same hearsay statements to which Bruton would apply.26 So if a co-defendant's out-of-court statement is not testimonial, Crawford , Bruton , or Richardson , do not bar potentially admissible statements.27

Our jurisprudence has been confused in this area. At least one unpublished case out of this Court, Miller v. Commonwealth ,28 cited by the trial court in its order, has held clearly and correctly that "the Confrontation Clause is not implicated by nontestimonial hearsay statements, the admissibility of which is governed solely by the rules of evidence."29 This conclusion finds support in authoritative caselaw from the Sixth Circuit, stating effectively the same thing, cases like United States v. Johnson30 and United States v. Arnold .31

But two recent cases from this Court, Maiden v. Commonwealth32 and Hatfield v. Commonwealth ,33 both unpublished companion cases, appear at odds with Miller and the...

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    ...U.S. v. Wilson (D.C. Cir. 2010) 605 F.3d 985, 1016.) And other jurisdictions have concluded similarly. ( Fisher v. Commonwealth (Ky. 2021) 620 S.W.3d 1, 8 ; State v. Nieves (2017) 376 Wis.2d 300, 897 N.W.2d 363, 366 ; State v. Wilcoxon (2016) 185 Wash.2d 324, 373 P.3d 224, 229 ; Burnside v.......
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    ... ... v. Wilson (D.C. Cir ... 2010) 605 F.3d 985, 1016.) And other jurisdictions have ... concluded similarly. ( Fisher v. Commonwealth (Ky ... 2021) 620 S.W.3d 1, 8; State v. Nieves (Wis. 2017) ... 897 N.W.2d 363, 366; State v. Wilcoxon (Wash. 2016) ... ...
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