Oakes v. Commonwealth Of Ky.

• Citation: 320 S.W.3d 50
• Decision Date: 26 August 2010
• Docket Number: No. 2009-SC-000186-MR.,2009-SC-000186-MR.
• Parties: Charles D. OAKES, Appellant,v.COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court (Kentucky)

320 S.W.3d 50

Charles D. OAKES, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.

No. 2009-SC-000186-MR.

Supreme Court of Kentucky.

Aug. 26, 2010.

320 S.W.3d 51

COPYRIGHT MATERIAL OMITTED

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Julia Karol Pearson, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.

Jack Conway, Attorney General, Jason Bradley Moore, Assistant Attorney General, Office of Criminal Appeals, Attorney General's Office, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice NOBLE.

A Bullitt Circuit Court jury convicted Appellant, Charles D. Oakes, of second-degree robbery and of being a second-

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degree persistent felony offender. He raises three issues on appeal: the trial court's refusal to allow him to introduce a KASPER report of the victim into evidence, problems relating to the victim's identification of him, and the court's refusal to give a lesser-included offense instruction. For the reasons set forth below, his conviction and sentence are affirmed.I. Background

The case against Appellant was principally based on the testimony of the complaining witness, Laura Kustes. Kustes testified that late one night she and one of her co-workers went to White Castle to eat. Inside the restaurant, a man, who Kustes later identified as Appellant, approached Kustes and her co-worker and began flirting.

Eventually Kustes and her co-worker left the restaurant. Outside, Appellant warned Kustes that he had overheard two police officers saying that they would pull her over. (Kustes had consumed one drink that night.) He offered them a ride home, but Kustes and her co-worker declined.

Kustes began driving her co-worker home. On the way, she had to stop at a set of train tracks. According to a witness who was driving behind Kustes, Appellant then got out of his car and walked towards Kustes's car. Kustes heard a “thump” on her driver-side window. She looked over and saw Appellant, who then promptly left. Kustes later discovered that her driver-side door handle was broken.

Kustes dropped her friend off, and then continued driving to her own home. Kustes pulled into her driveway and turned her car off. The passenger-side door was immediately opened. Kustes testified that she then saw Appellant lean into her car and say “What's up, girl?”

At this point, Kustes grabbed her purse and tried to flee, but Appellant grabbed her purse and started hitting her on her neck and side. Kustes dropped the purse, and Appellant took it and fled.

Kustes then entered her home and called the police. Kustes gave the investigating officer, Detective McGaha, a description of the perpetrator. McGaha obtained surveillance video from White Castle, which showed Kustes, her co-worker, and a man fitting Kustes's description of the perpetrator. The officer then received help from the Louisville Police Department in identifying the man in the surveillance footage; apparently, Appellant was identified by an officer who had previously arrested him.

McGaha then contacted the Kentucky State Police to construct a photo-array lineup of six men, including Appellant. McGaha showed this photo-array lineup to Kustes, who immediately identified Appellant as the man who hit her and took her purse.

The jury found Appellant guilty of second-degree robbery and of being a second-degree persistent felony offender. He was sentenced to twenty years in prison and appeals to this Court as a matter of right. Ky. Const. § 110(2)(b).

II. Analysis A. Admissibility of KASPER Report

Appellant first argues that reversal is required because the trial court refused to allow him to introduce or refer to a Kentucky All-Schedule Prescription Electronic Reporting (KASPER) record to impeach Kustes, who testified against him at trial. This Court disagrees.

The issue here is not whether Appellant can invade the KASPER privilege to receive exculpatory information or to use any such information in his defense. He clearly

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can under Commonwealth v. Bartlett, 311 S.W.3d 224 (Ky.2010). However Bartlett does not make a KASPER report necessarily admissible. It can still be excluded under our rules of evidence, such as for lack of relevance, just like anything else.

Because the question here is about the admissibility of evidence, the trial court's decision must be reviewed for an abuse of discretion. E.g., Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999). A trial court abuses its discretion if its decision was “arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Id.

The report here was offered to impeach Kustes. Appellant began his defense by calling Kustes, who had already testified against him during the Commonwealth's case in chief. Defense counsel asked Kustes about a prescription she had for Lortab, which she had said was in her purse the night of the robbery. Counsel asked her if she refilled her prescription as indicated, which would have been every two weeks. Kustes replied that she did. Counsel then asked: “So, if I were able to show you a KASPER report regarding you-,” at which point the prosecutor objected and the attorneys approached the bench.

At the bench conference, the court examined the report and asked defense counsel pointedly: “How is this probative and relevant?” Defense counsel explained how he wanted to use it for impeachment purposes. In particular, he responded that it was “probative and relevant, because, again, it goes to impeachment testimony. She says she gets refills every two weeks, but under this report here, she got one that was sooner, a lot sooner, than two weeks there, so it's impeachment material.” The court then sustained the prosecutor's objection. Defense counsel complained: “Again, she clearly stated that she gets refills every two weeks. Again, this would go to directly impeach that, Your Honor.”

The report was not admissible for impeachment because it was extrinsic evidence. KRE 608(b) provides: “Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility ... may not be proved by extrinsic evidence.” Applied here, the “[s]pecific instances of the conduct of a witness” is the frequency Kustes received Lortab refills, “attacking ... the witness' credibility” is her failure to recollect or tell the truth about the refills, and the prohibited “extrinsic evidence” is the KASPER report at issue here. The trial court's ruling was therefore correct under KRE 608(b).

On appeal, Appellant now claims that the report would have been admissible not for impeachment purposes, but to directly support his defense theory. Apparently, Appellant's theory was that Kustes was selling him Lortab, and after the drug sale went sour, she made up the story about the robbery to get revenge. Indeed, counsel mentioned this at a pre-trial conference to get discovery of the report. And during the Commonwealth's case in chief, defense counsel did ask Kustes if she met Appellant that night to sell him Lortab. (She denied doing so.)

Nevertheless, counsel did not explain to the court that the KASPER report would be used for anything other than impeachment. In fact, after the court ruled the report would be inadmissible to impeach Kustes, the court explained: “I don't know what context you're going to use it in, so I'm not going to make a blanket ruling [on its admissibility] until I know what grounds you believe it's admissible on.” This begs for the response that the report

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would be used to support this defense theory, if it were going to be explored any further. Yet, defense counsel responded that it was admissible for impeachment.

However, even assuming that Appellant tried to introduce the report to support this defense theory, it would still be inadmissible. As the trial court pointed out, the only entries on the KASPER report showing a sooner-than-biweekly refill “post-date the date of the events related to the indictment.” Thus, the report could not directly show that Kustes had any extra Lortab to sell the night of the robbery; at most, it could show her character as an excessive prescription refiller to prove she may have gotten an extra refill on a prior occasion (despite this not being in the report). However, this would run afoul of KRE 404(b), which provides: “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” Consequently, there was no error.

B. Identification Procedure 1. Pre-Trial Confrontation

Appellant next argues that his right to confrontation was violated when Kustes failed to show up at a pre-trial suppression hearing concerning the admissibility of her identification of him. This Court does not agree.

First and foremost, the U.S. Supreme Court has never held that the right to confront witnesses applies to pre-trial hearings. In fact, to the contrary, it has repeatedly described the right as a trial right. E.g., Pennsylvania v. Ritchie, 480 U.S. 39, 52, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) (“The opinions of this Court show that the right to confrontation is a trial right ....”) (plurality opinion); California v. Green, 399 U.S. 149, 157, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) (“[I]t is this literal right to ‘confront’ the witness at the time of the trial that forms the core of the values furthered by the Confrontation Clause.”); Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968) (“The right to confrontation is basically a trial right.”). The Court's recent decisions, such as Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), do not indicate a change to this long-lived understanding.

For that reason, every other state ruling on this issue rejects claims that the Confrontation Clause applies to pre-trial hearings. E.g., State v. Sherry, 233 Kan. 920, 667 P.2d 367, 376 (1983) (“There is no constitutional right to allow the accused to confront witnesses against him at a preliminary...