Rogers v. Com., Nos. 95-SC-844-M

CourtUnited States State Supreme Court (Kentucky)
Writing for the CourtSTEPHENS; LAMBERT; GRAVES; WINTERSHEIMER; GRAVES; WINTERSHEIMER
Citation992 S.W.2d 183
PartiesErnest Arnaze ROGERS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
Decision Date25 March 1999
Docket NumberNos. 95-SC-844-M,96-SC-232-MR

Page 183

992 S.W.2d 183
Ernest Arnaze ROGERS, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
Nos. 95-SC-844-MR, 96-SC-232-MR.
Supreme Court of Kentucky.
March 25, 1999.
As Modified June 17, 1999.

Page 184

Marie Allison, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Karen Maurer, Assistant Public Advocate, Department of Public Advocacy, Frankfort, for Appellant.

A.B. Chandler, III, Attorney General, Frankfort, Kent T. Young, Assistant Attorney General, Office of the Attorney General, Criminal Appellate Division, Frankfort, for Appellee.

STEPHENS, Justice.

Appellant Ernest Rogers was tried and found guilty of murder, first degree robbery, criminal attempt to commit murder, kidnapping and first degree attempted rape. Rogers was sentenced to a term of eighty years of incarceration. The jury was unable to reach a unanimous agreement on what sentence Rogers should be awarded for his murder conviction. Since the murder was committed during the commission of a first-degree robbery, Rogers was eligible for the death penalty. Subsequently, Rogers was sentenced to the death penalty. Rogers appeals his convictions for various reasons which shall be discussed in the body of this opinion.

On the night of July 11, 1994, two men abducted and robbed Steve Marquess and Tracey Geordan while they were working in the Brickyard Plaza parking lot in Hopkinsville, Kentucky. Marquess was able to escape from his captors. However, Geordan was not so fortunate. She was found dead and the victim of an attempted rape. Ernest Rogers and Nakia Dillard were arrested and charged with these crimes. Dillard made a statement to the police that was recorded on videotape. In this statement, Dillard admits that he abducted, robbed and shot without result at Marquess. However, Dillard placed all blame on Rogers for the attempted rape and murder.

Although Rogers raises numerous issues in this matter of right appeal, in view of our disposition of this case we find it necessary only to deal with the two following matters. One, was the statement given by Rogers' co-defendant Nakia Dillard properly admitted into evidence at trial? Two, should the trial court have permitted the defendants to show their fingernails to the jury? We shall now discuss both these issues in greater detail.

I. Admissibility of Confession of Co-Defendant at Trial.

During the course of the trial of Rogers and Dillard, Dillard's videotaped statement was played in its entirety for the jury. The only redaction to the videotape was that whenever Dillard referred to Rogers, the audio was deleted at that part. This redaction was the sole attempt to comply with the requirements of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) and Cosby v. Commonwealth, Ky., 776 S.W.2d 367 (1989). We find this attempt insufficient. The dictates of these cases require that any statement which is to be shown to the jury must be so purged of the mention of a co-defendant as to remove any prejudicial effect. That was not achieved in this case. It was obvious that the silence referred to Rogers. No other conclusion is possible.

Page 185

Section Eleven of the Kentucky Constitution, as well as the Sixth Amendment to the United States Constitution, guarantees a defendant the right to meet and challenge the witnesses who come to offer evidence at trial. In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the United States Supreme Court held that in a joint trial the admission of a non-testifying co-defendant's confession which "expressly implicated" his fellow co-defendant, was a violation of the Confrontation Clause of the Sixth Amendment, as extended to the several States by the Fourteenth Amendment. Id. at 124, n. 1, 88 S.Ct., at 1621 n. 1. Bruton was based on the proposition that while it is legitimate in many cases to give a limiting instruction to a jury, in this case a limiting instruction is not "an adequate substitute for [a co-defendant's] constitutional right of cross-examination." Id. at 136, 88 S.Ct. at 1628. The right of confrontation includes the right to cross-examine witnesses. Pointer v. Texas, 380 U.S. 400, 404, 406-07, 85 S.Ct. 1065, 1068, 1069-70, 13 L.Ed.2d 923 (1965).

In Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987), the United States Supreme Court again had occasion to revisit the issue of the admissibility of a non-testifying co-defendant's statement. In Richardson, the issue was whether a confession of the first defendant, which in its redacted form omitted all references to the second defendant, was admissible against the second defendant. The Richardson Court held that under such conditions, a confession would be admissible against the second defendant. The reason the confession was admissible in Richardson, but not in Bruton was that in the latter case the confession clearly implicated the co-defendant, while in the former case, the confession made no mention of the co-defendant or for that matter that anyone other than the confessor and a third person had been involved in the wrongdoing. Richardson, 481 U.S. at 203, 107 S.Ct. at 1705. In Richardson, the confession only became incriminating when it was "linked with other evidence introduced later at trial." Id. at 208, 107 S.Ct. at 1707.

This Court has also dealt with the issue of the admissibility of a co-defendant's confession in a joint trial. In Cosby v. Commonwealth, Ky., 776 S.W.2d 367 (1989), basing our decision on Bruton and Richardson, we found that a co-defendant's confession had been improperly admitted into evidence. Cosby and his co-defendant, Walls, were jointly tried for robbery, kidnapping and murder. The statement of Cosby's non-testifying co-defendant was played before the jury, which, just as in the instant case, placed the blame for the most serious crime upon Cosby. The Cosby court held that since Walls' statement was improperly introduced to the jury, Cosby's conviction was reversed and remanded for new trial.

In a case remarkably similar to the instant case, the United States Supreme Court held that simply replacing a co-defendant's name with the words "deleted" or "deletion", does not comply with the dictates of Bruton and Richardson. In Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998), a confession was read into evidence with some other word being substituted for the co-defendant's name. That court held:

Unless the prosecutor wishes to hold separate trials or to use separate juries or to abandon the use of the confession, he must redact the confession to reduce significantly or...

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20 practice notes
  • St. Clair v. Commonwealth, 2011-SC-000774-MR
    • United States
    • United States State Supreme Court (Kentucky)
    • 21 Agosto 2014
    ...review. But "[d]eath is unlike all other sanctions the Commonwealth is permitted to visit upon wrongdoers." Rogers v. Commonwealth, 992 S.W.2d 183, 187 (Ky. 1999); Gregg v. Georgia, 428 U.S. 153, 188 (1976) ("the penalty of death is different in kind from any other punishment imposed under ......
  • St. Clair v. Commonwealth, No. 2011–SC–000774–MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • 21 Agosto 2014
    ...review. But “[d]eath is unlike all other sanctions the Commonwealth is permitted to visit upon wrongdoers.” Rogers v. Commonwealth, 992 S.W.2d 183, 187 (Ky.1999) ; Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (“the penalty of death is different in kind from any ......
  • Dunlap v. Commonwealth, 2010-SC-000226-MR
    • United States
    • United States State Supreme Court (Kentucky)
    • 20 Junio 2013
    ...straightforward. Death is unlike all other sanctions the Commonwealth is permitted to visit upon wrongdoers." Rogers v. Commonwealth, 992 S.W.2d 183, 187 (Ky. 1999). Thus, the invocation of the death penalty requires a more expansive standard of review than is normally necessary in the crim......
  • Hunt v. Com., No. 2006-SC-000634-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • 18 Marzo 2010
    ...of evidence is a demonstration of its integrity—that it is in fact what its proponent claims it to be. Rogers v. Commonwealth, 992 S.W.2d 183, 187 Hunt attempted to introduce the telephone billing records for the truth of the matter contained therein; and, thus, the records must clear the h......
  • Request a trial to view additional results
20 cases
  • Hunt v. Com., No. 2006-SC-000634-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • 18 Marzo 2010
    ...of evidence is a demonstration of its integrity—that it is in fact what its proponent claims it to be. Rogers v. Commonwealth, 992 S.W.2d 183, 187 Hunt attempted to introduce the telephone billing records for the truth of the matter contained therein; and, thus, the records must clear the h......
  • Meece v. Commonwealth, 2006-SC-000881-MR
    • United States
    • United States State Supreme Court (Kentucky)
    • 16 Junio 2011
    ...Death is unlike all other sanctions the Commonwealth is permitted to visit upon wrongdoers." Rogers v. Commonwealth, 992 S.W.2d 183, 187 (Ky. 1999). Thus, the invocation of the death penalty requires a more expansive standard of review than is normally necessary in the criminal justice......
  • Dunlap v. Commonwealth, 2010-SC-000226-MR
    • United States
    • United States State Supreme Court (Kentucky)
    • 20 Junio 2013
    ...Death is unlike all other sanctions the Commonwealth is permitted to visit upon wrongdoers." Rogers v. Commonwealth, 992 S.W.2d 183, 187 (Ky. 1999). Thus, the invocation of the death penalty requires a more expansive standard of review than is normally necessary in the criminal justice......
  • Dunlap v. Commonwealth, No. 2010–SC–000226–MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • 20 Febrero 2014
    ...straightforward. Death is unlike all other sanctions the Commonwealth is permitted to visit upon wrongdoers.” Rogers v. Commonwealth, 992 S.W.2d 183, 187 (Ky.1999). Thus, the invocation of the death penalty requires a more expansive standard of review than is normally necessary in the crimi......
  • Request a trial to view additional results

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