Maynard v. Com.

• Decision Date: 11 November 1977
• Citation: 558 S.W.2d 628
• Parties: Charlie MAYNARD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Kentucky Court of Appeals

Page 628

558 S.W.2d 628

Charlie MAYNARD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Nov. 11, 1977.

Irvin D. Foley, Louisville, for appellant.

Robert F. Stephens, Atty. Gen., James L. Dickinson, Asst. Atty. Gen., Frankfort, for appellee.

Before HAYES, HOGGE and LESTER, JJ.

HAYES, Judge.

The appellant, Charlie Maynard, was indicted by the Russell County Grand Jury for violation of KRS 506.030, for soliciting the murder of Russell Circuit Judge Leonard F. Wilson. Maynard was found guilty by a jury and the minimum sentence of ten (10) years was assessed. He appeals from the judgment of Russell Circuit Court assigning as reversible error, among other things, the trial court's admission into evidence:

(1) The hearsay testimony of an F.B.I. Agent as to conversations between Maynard and one Norwood Jones, deceased, which violated Maynard's right to confrontation as guaranteed by the 6th Amendment of the U.S. Constitution.

(2) The hearsay testimony of Judge Wilson as to the threats made on his life.

(3) Taped recordings of conversations between Maynard and the deceased Jones.

It is necessary that we set forth in more detail than usual the factual circumstances in order to assess the impact of the challenged testimony on the total evidence introduced against the appellant Maynard. A review of the evidence against Maynard demonstrates the Commonwealth's case against him was highly circumstantial and consisted mainly of testimony by law enforcement personnel, who had no personal knowledge of the circumstances of the charge against Maynard. The only other evidence was portions of a tape recording of conversations on two occasions between Maynard and Norwood Jones, who died before trial.

On the day of trial, October 25, 1976, and before, the attorney for Maynard made numerous objections to the testimony by F.B.I. Agent, Eugene N. Thomeczek concerning conversations the agent had with his informer, Jones. Over these objections, Thomeczek was permitted to testify as follows:

Q. When did you first come into contact with Norwood Elmer Jones?

A. Mr. Jones came to the Louisville office on December 5, 1975, and said he wanted to report a possible violation of Federal law.

Q. Since your meeting with Jones in December of last year, from your own personal knowledge tell the Court and Jury if Jones is now living or dead.

A. Jones is now deceased.

Q. Did you have on the 5th day of December, 1975 a conversation relating to a purported crime against Leonard Wilson?

A. I did.

Q. Would you please tell this Jury what Mr. Jones said to you concerning the commission of a crime against Leonard Wilson?

OBJECTION BY MR. FOLEY: Your Honor at this point we will object on the basis that the testimony is hearsay, and not under oath. Mr. Jones was not under oath at the time he made these statements. His statements are not subject to cross examination, and should this testimony be permitted, then I move for a mistrial.

BY THE COURT: As we have gone into this matter a number of times, and the Court's ruling still stands that the objection is overruled.

Q. With that in mind proceed to relate the conversation that you had with Mr. Jones.

A. Mr. Jones told me on December 5, 1975 that he was acquainted, uh, he was staying at the Dismas House, which is a pre-release guidance center in Louisville with an individual by the name of Earl Conover. And that in approximately the first part of October, 1975 Conover had come to Jones and asked him if he would like to earn some money. That he thought maybe he could set up a way they could get some money. Jones said he was interested, and subsequently he and Conover traveled to Jamestown, Kentucky where they met with Charlie Maynard. During this meeting Mr. Maynard discussed the fact that Judge Leonard Wilson was the only candidate at that time for the Circuit Judge in Russell County, or for Russell and the other counties, and that if he was elected, that he would put Mr. Maynard out of business, and . . .

Q. Excuse me, what kind of business was he suppose to have been engaged in?

A. He was a bootlegger, and according to Mr. Jones Mr. Maynard told him that Mr. Wilson if he was elected Judge, and he most assuredly would be since he was the only candidate, he said he had campaigned that he was going to stop bootlegging in Russell County, and Mr. Maynard felt if he did so, and if he stopped, if Judge Wilson stopped Mr. Maynard from bootlegging he would of course not have a source of income. He, during either this trip, or a subsequent trip, offered Mr. Jones and Mr. Conover $2,000.00 to kill Judge Wilson. He told them that he wanted this accomplished before Judge Wilson took office, which I believe was January 6th of this year, and that he would give them the weapons to do so. During the second trip he gave Mr. Conover and Mr. Jones a .30 caliber carbine, which Mr. Maynard told them was fully automatic.

Special Agent Thomeczek then related that he had a tape recording device placed upon the person of the informant Jones. Jones went to Jamestown, Kentucky, and attempted to engage Maynard into a conversation that would in effect verify the conversations Jones previously had with Agent Thomeczek.

Jones also carried a transmitter on his person during these taped conversations with Maynard. F.B.I. Agents, including Thomeczek, and state police officers listened to the conversations between Jones and Maynard. The officers were secreted in automobiles some distance from the actual presence of Maynard and Jones.

The tape recordings of the Maynard-Jones conversations generally verified that Jones and one Earl Conover had received guns from Maynard and they discussed hand grenades that could be thrown into Wilson's office.

Armed with this information Agent Thomeczek went before the Russell County Grand Jury on February 11, 1976, and obtained an indictment against Maynard for soliciting Jones and Conover to murder Judge Wilson. Norwood Jones, the informer, was himself murdered on February 11, 1976, at Paducah, Kentucky. He had been strangulated with a coat hanger. Jones's death apparently had no connection with his acquaintance with Maynard.

We perceive the issues in this case to be threefold:

(1) Was the F.B.I. agent's testimony of conversations he had with his informant, Jones, about Maynard prejudicial to Maynard, or stated another way, were these conversations offered by the Commonwealth for their testimonial import?

(2) If the testimony of the F.B.I. agent was prejudicial or was offered by the Commonwealth for the truth of the matter asserted, then was there a violation of the Confrontation Clause of the 6th Amendment to the U.S. Constitution?

(3) If the admission of the testimony was in violation of the Confrontation Clause, was it still properly admitted under a valid exception to the hearsay rule of evidence?

The Commonwealth contends that the testimony of the F.B.I. agent was admissible either because: (A) Even if it was hearsay, it was properly admitted under an exception to the hearsay rule as defined in the Federal Rules of Evidence, which we should adopt, or, (B) the testimony was not offered to assert the truth of the matter contained therein, but for the purpose of explaining the course of events that transpired after the statements were heard by the agent. The Commonwealth relies heavily upon Armstrong v. Commonwealth, Ky., 517 S.W.2d 233 (1975), and Stallard v. Commonwealth, Ky., 432 S.W.2d 401 (1968).

We believe the testimony of Agent Thomeczek had testimonial import and constituted a very significant link in the chain of circumstantial evidence against Maynard. Therefore, the reliance of the Commonwealth on Armstrong v. Commonwealth, supra, is in error. In Armstrong, it was held that the testimony of a police officer, relating his conversations and transactions with his informant, and the substance of the informer's end of a telephone conversation with an alleged seller of heroin was admissible, even though the informer did not testify at the trial of the heroin seller, because the words and the acts of the informer were part of a relevant course of events observed by the witness, the police officer. The conversation testified to by the officer who overheard the conversations was roughly: "Do you have any stuff? I want some . . . . About two spoons . . . . Same place . . . . O.K." It turned out that the person the informer was talking to was not the defendant, Armstrong.

The Court of Appeals stated on page 236 the following:

White's extrajudicial utterances had no testimonial import. Had he made some such statement as, "I am calling up a man named Danny Robinson. He pushes dope for a fellow named Harry Armstrong," it would have had a definite testimonial effect and, even though spoken in the course of relevant acts and conduct, might very well have been inadmissible, . . .

Also, an important factor in Armstrong that we do not have in the case before us is that the police officer in Armstrong was actually present and overheard the telephone conversation.

The testimony permitted by the court in Stallard v. Commonwealth, supra, was by the police officer who repeated the information he had received from people regarding the theft, descriptions and identifications of a stolen motorcycle. The Court of Appeals concluded that none of the testimony was introduced to establish the fact that the appellant, Stallard, was operating the motorcycle without the owner's consent. The court held that testimony as to the manner in which the investigation of the crime was conducted was an exception to the hearsay rule. Generally, these utterances have no testimonial significance as to the defendant's guilt. Such is not our case here.

Our belief that Agent Thomeczek's testimony of his December 5th conversation with Jones was offered for its effect on the guilt of Maynard is further strengthened when we search the record and find no other mention that Maynard had...