Summitt v. Com.

• Citation: 550 S.W.2d 548
• Parties: James Willard SUMMITT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Decision Date: 22 April 1977
• Court: United States State Supreme Court (Kentucky)

Page 548

550 S.W.2d 548

James Willard SUMMITT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Supreme Court of Kentucky.

April 22, 1977.

Terrence R. Fitzgerald, Deputy Public Defender, David M. Lewis, Asst. Dist. Defender, Louisville, for appellant.

Robert F. Stephens, Atty. Gen., Victor Fox, Asst. Atty. Gen., Frankfort, for appellee.

PALMORE, Justice.

James Willard Summitt appeals from a judgment sentencing him to life imprisonment pursuant to a jury verdict finding him guilty of rape. KRS 435.090 (now superseded by the Kentucky Penal Code, eff. January 1, 1975).

Shortly after midnight of July 20-21, 1974, Donna Jean Furgason was abducted by two men and raped by one of them. Some 20 hours later, after having reviewed over 1200 "mug shots" at the headquarters of the Jefferson County and Louisville police, she identified a photograph of the appellant as the man who raped her. In due course he was arrested and brought to trial. His defense was a denial that he was the guilty party.

The first contention on which Summitt relies for a reversal is that the trial court erred in permitting a police detective to relate substantive details of the report Donna had given him before she looked through the photographs. He stated, for example, that she was fearful because her assailant had warned her that if she reported the incident to the police he would do harm to her and her family, and that she described him as follows:

"The subject that had done the rape was supposed to have been a white male, in his 30's approximately five foot nine, 180 to 190 pounds, had a rough complexion and had tattoos on both arms. She said that she heard him she knew that he went by the name of Jimbo, that was his nickname, and that she had learned this during the offense."

The detective was the first witness called by the Commonwealth, and when he began to testify from his report Summitt's counsel objected on grounds of the hearsay rule. In overruling the objection the trial court commented, "She is going to testify."

We agree that from the standpoint of this witness the statement received from the victim was purely hearsay and at this stage of the trial was inadmissible. As it developed, however, and in our opinion would inevitably have developed, the trial focused on the reliability of the identification. Even had Donna testified before the detective, the only avenue of defense was to discredit her initial identification of Summitt from the police photograph. Once that attack was made through cross-examination, evidence that she had accurately described him before she saw the photograph was competent for corroborative purposes. Cf. 4 Wigmore, Evidence §§ 1130, 1132 (Chadbourne rev. 1972); Preston v. Commonwealth, Ky., 406 S.W.2d 398, 403 (1966). So, while the detective should not have been allowed to give the details of what Donna said to him during their first interview until after she had appeared as a witness and had been cross-examined, the error was erased by subsequent legitimation of the incompetent testimony.

Before the first witness was introduced, counsel for the appellant unsuccessfully sought an evidentiary hearing on his motion to suppress or exclude Donna's in-court identification of Summitt. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), is cited for the proposition that the denial of such a hearing is constitutionally fatal. As the Commonwealth points out, however, the pertinent decision with reference to photographic identification is Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), which says:

"Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs. The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method's potential for error. We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a...