Gerlaugh v. Com.

• Decision Date: 17 February 2005
• Docket Number: No. 2002-SC-0382-MR.,2002-SC-0382-MR.
• Citation: 156 S.W.3d 747
• Parties: Steven A. GERLAUGH, Appellant v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

156 S.W.3d 747

Steven A. GERLAUGH, Appellant v. COMMONWEALTH of Kentucky, Appellee.

No. 2002-SC-0382-MR.

Supreme Court of Kentucky.

February 17, 2005.

Misty Dugger Judy, Department of Public Advocacy, Assistant Public Advocate, Frankfort, KY, Counsel for Appellant.

Gregory D. Stumbo, Attorney General, Courtney J. Hightower, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, KY, Counsel for Appellee.

COOPER, Justice.

Appellant, Steven A. Gerlaugh, was convicted by a Montgomery Circuit Court jury of robbery in the first degree and sentenced to twenty years in prison. He appeals to this Court as a matter of right, Ky. Const. § 110(2)(b), asserting the following claims of error, viz: (1) denial of a speedy trial; (2) improper eyewitness identification; (3) admission of hearsay evidence; (4) admission of a firearm that was not proven to have been connected to the crime; (5) admission of the description and a photograph of an alleged but unidentified co-perpetrator; (6) admission of evidence of Appellant's post-arrest silence; (7) insufficiency of the evidence to support a conviction. We reverse and remand for a new trial because of the improper admission of the hearsay evidence and the insufficiently identified firearm.

On Father's Day, June 17, 2001, Richard and Kristina Boone had dinner with Richard's son and daughter-in-law before returning to their residence in Jeffersonville, Montgomery County, Kentucky. On their way home, they stopped at R & D Food Mart to purchase cigarettes. While doing so, Mrs. Boone noticed another female customer in the store. The Boones arrived at their residence at about 10:00 p.m. Approximately fifteen minutes later, they heard a knock at their door. Upon opening the door, Mr. Boone was confronted by a man and a woman. The man struck Boone in the face with a pistol, knocking him across the room and rendering him partially insensible. The two intruders then ordered Mrs. Boone to remain on the sofa as they proceeded to steal wrist watches, jewelry, approximately $400.00 in cash, and all of the telephones in the residence. Before departing, they bound the hands and feet of both victims with wire tie straps. Mrs. Boone ultimately freed herself and her husband. She then proceeded to a neighbor's residence and called for emergency assistance.

On June 25, 2001, Appellant was arrested and charged with the robbery. Although neither perpetrator wore a mask, Mr. Boone could not identify Appellant as the person who entered his residence on June 17, 2001, and struck him in the face with a pistol. However, he did overhear the male robber say, "You shouldn't let other people know your business," before leaving his home. Although Boone did not know Appellant, both were acquainted with Dennis Yarber. Boone had fathered a child by Yarber's daughter, and Appellant and Yarber had been childhood friends in Ohio. According to Boone, Yarber knew that Boone kept large amounts of cash at his residence and had been inside Boone's residence "looking around" three or four days before the robbery. The police found a 9-mm pistol, which was introduced at trial, in Yarber's possession.

Mrs. Boone recognized the female perpetrator as the person she had seen inside the R & D Food Mart shortly before the robbery. The woman has never been located or charged. Although Mrs. Boone had never seen Appellant before the robbery, she subsequently identified him by photograph and in person during trial as being the male perpetrator. She had also told Detective Shane Barnes that the male perpetrator was wearing a green, long-sleeved shirt with a button-down collar, two breast pockets, and a shirttail rounded off at the bottom. After Appellant's arrest, Barnes found a shirt matching that description in Appellant's vehicle.

I. SPEEDY TRIAL.

Appellant was arrested in Madison County on a charge of possession of a handgun/firearm by a convicted felon on June 25, 2001, and bond was set at $20,000. While in custody on that charge, he was served with a warrant on this robbery charge. He was indicted on the robbery charge on July 13, 2001, and arraigned on July 27, 2001. Bond was set at $50,000. His trial was initially scheduled for January 15, 2002, but was continued until March 20, 2002, because of a conflict with an ongoing murder trial. That March 20th trial date was also continued because of a scheduling conflict. On March 21, 2002, Appellant filed a motion for an immediate trial or for pretrial release. In response to this motion, the trial court set a new trial date of April 3, 2002, and the case was tried on that date. The record does not reflect how long Appellant remained in custody on the Madison County charge or when or if that charge was ever resolved. Except for being in pretrial detention, Appellant identifies no prejudice caused by the fact that his trial was held in April instead of January or March. Thus, the issue becomes whether the nine-month lapse of time between indictment and trial was presumptively prejudicial.

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court established a four-part test for determining whether a defendant's Sixth Amendment right to a speedy trial has been violated. However, that inquiry is triggered only if the length of delay is presumptively prejudicial. Id. at 530, 92 S.Ct. at 2192. In Doggett v. United States, 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992), the Court held that the delay becomes presumptively prejudicial "as it approaches one year." Id. at 652 n. 1, 112 S.Ct. at 2691 n. 1. See Cowart v. Hargett, 16 F.3d 642, 646 (5th Cir.1994) ("delay of less than one year will rarely qualify as presumptively prejudicial"). In Barker, the Court held that ten months of pretrial incarceration was only minimally prejudicial. Id. at 534, 92 S.Ct. at 2194. And in United States v. Cope, 312 F.3d 757 (6th Cir.2002), a delay of eight months and three weeks was held not presumptively prejudicial. Id. at 778. See also United States v. Titlbach, 339 F.3d 692, 699 (8th Cir.2003) (thirteen-month delay presumptively prejudicial, but eight-month delay not presumptively prejudicial); United States v. Kalady, 941 F.2d 1090, 1095-96 (10th Cir.1991) (eight-month delay not presumptively prejudicial); Arnold v. McCarthy, 566 F.2d 1377, 1382-83 (9th Cir.1978) (nine-month delay not presumptively prejudicial).

Similarly, we held in Dunaway v. Commonwealth, 60 S.W.3d 563, 569 (Ky.2001), that a thirteen and one-half month delay was presumptively prejudicial, but in Brown v. Commonwealth, 934 S.W.2d 242, 248-49 (Ky.1996), that a ten-month delay was not presumptively prejudicial. The nine-month delay in this case was not presumptively prejudicial; thus, absent some other claim of prejudice, we need not address the remainder of the Barker analysis. Appellant was not denied his constitutional right to a speedy trial.

II. EYEWITNESS IDENTIFICATION.

Appellant did not preserve this issue for appellate review but seeks review for palpable error, i.e.,"manifest injustice." KRE 103(e); RCr 10.26. Kristina Boone observed the male perpetrator for approximately fifteen minutes as he and his female companion ransacked her residence. Shortly after the police arrived, Mrs. Boone described the man as a white male, thirty to thirty-five years old, with brown, medium-length hair, of average build, and approximately 5' 6" tall. She also described the green shirt mentioned supra. On the morning of June 20, 2001, Mrs. Boone spent several hours with a forensic sketch artist, at which time she described the male perpetrator as a white male in his late thirties to early forties, with blondish-brown slightly wavy shoulder-length hair, bluish-green eyes, tan skin, weighing approximately 150-160 pounds, and approximately 5' 4" tall. Even Appellant admitted at trial that the sketch that the artist rendered is a remarkable resemblance of him. Nevertheless, he claims on appeal that Mrs. Boone's description was flawed because he was fifty-two years old, fair-haired, blue-eyed, and 5' 8" tall.

Meanwhile, Detective Barnes was able to obtain a driver's license photograph from the county of Appellant's residence in Ohio. Though the photograph was not obtained until after completion of the artist's sketch, it is almost an exact replica of the sketch. Barnes assembled a "photo-pack" that included photographs of Appellant and five other individuals, none of whom had blonde hair or light-colored eyes. However, the other individuals did have brown hair that matched Mrs. Boone's original description of the male perpetrator. She easily selected Appellant as the person who had entered her residence on the night of June 17, 2001. At trial, she again identified Appellant as the male perpetrator. On appeal, Appellant claims Mrs. Boone's in-trial identification was tainted by the improper photo-pack line-up in which Appellant was the only fair-haired, light-eyed person depicted.

A conviction based on identification testimony following pretrial identification violates the defendant's constitutional right to due process whenever the pretrial identification procedure is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. The determination of whether the in-trial use of identification testimony violates due process involves a two-step process. First, the court examines the pre-identification encounters to determine whether they were unduly suggestive. If so, the identification may still be admissible if under the totality of the circumstances the identification was reliable even though the [identification] procedure was suggestive.

Dillingham v. Commonwealth, 995 S.W.2d 377, 383 (Ky.1999) (internal citations and quotations omitted). Assuming the photo-pack was suggestive, we have adopted the test employed in Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (19...