Taylor v. Com., No. 86-SC-481-MR

CourtUnited States State Supreme Court (Kentucky)
Writing for the CourtWINTERSHEIMER; STEPHENS; LEIBSON, J., dissents by separate opinion, in which COMBS; LEIBSON; COMBS
Citation821 S.W.2d 72
PartiesVictor Dewayne TAYLOR, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
Docket NumberNo. 86-SC-481-MR
Decision Date06 September 1990

Page 72

821 S.W.2d 72
Victor Dewayne TAYLOR, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
No. 86-SC-481-MR.
Supreme Court of Kentucky.
Sept. 6, 1990.
As Modified July 3, 1991.
Dissenting Opinion of
Justice Leibson July 3, 1991.
Certiorari Denied Feb. 24, 1992.
See 112 S.Ct. 1243.

Page 73

Frank W. Heft, Jr., Louisville (Daniel T. Goyette, Jefferson Dist. Public Defender, of counsel), for appellant.

Frederic J. Cowan, Atty. Gen., David A. Smith, Denise A. Garrison, Asst. Attys. Gen., Frankfort, Ernest A. Jasmin, Sp. Asst. Atty. Gen., Asst. Comm. Atty., Louisville, for appellee.

WINTERSHEIMER, Justice.

Victor Dewayne Taylor appeals from a judgment based on a jury verdict which convicted him of two counts of murder, kidnapping and first-degree robbery and one count of first-degree sodomy. He was sentenced to death on the murder and kidnapping convictions and to consecutive twenty year terms of imprisonment for the robbery and sodomy convictions.

Taylor and codefendant George Wade were charged with the murders, kidnapping and robbery of two high school students. The prosecution presented evidence in the form of a statement by Wade which indicated that he and Taylor kidnapped and robbed the two students who had gotten lost on their way to a football game. The young men had stopped at a fast food restaurant to ask directions when they were confronted by Taylor and Wade. Other witnesses indicated that Taylor had a

Page 74

gun and forced the victims to get into their car and drive away. Wade in his statement said that he and Taylor robbed the boys and that he had removed both boys trousers, bound their ankles and gagged them in a Louisville alley. Wade's statement was that Taylor decided to kill the two victims because he was afraid they would identify them. Wade said he waited on a nearby street while Taylor shot both boys in the head.

Upon a change of venue both Taylor and Wade were tried in Lexington. Wade was tried separately and found guilty of two counts of murder, kidnapping, first-degree robbery, but was acquitted of sodomy. The jury recommended sentences of fifteen years on the robbery, twenty-two years on the kidnapping and life imprisonment on the murders. All sentences were to run concurrently, and Wade was sentenced to a total of life imprisonment.

At Taylor's trial Wade, who was tried first, cited his Fifth Amendment right against self-incrimination, and refused to testify. His edited confession was admitted against Taylor.

Taylor, through counsel, raises forty-four assignments of alleged error in this appeal. We have carefully reviewed all of the issues presented by Taylor and this opinion will concentrate on the question of the admissibility of the Wade confession and the propriety of the trial judge's refusal to grant a second change of venue. Allegations of error which we consider to be without merit will not be addressed here.

I

The trial judge did not err by admitting Wade's statement into evidence pursuant to Federal Rule of Evidence 804(b)(3) which was adopted by this Court in Maynard v. Commonwealth, Ky.App., 558 S.W.2d 628 (1977); Crawley v. Commonwealth, Ky., 568 S.W.2d 927 (1978) and reaffirmed in Dodson v. Commonwealth, Ky., 753 S.W.2d 548 (1988).

The trial judge in ruling on motions concerning Wade's unavailability as a witness and whether his statement was against his own interest found that FRE 804(e) provides in pertinent part that a witness is unavailable if he is exempted from testifying concerning the subject matter of his statement by a ruling of the trial judge on the grounds of privilege. The trial judge in the presence of Wade, but outside the presence of the jury, determined that Wade would rely on the Fifth Amendment privilege and that the privilege was valid because his conviction was pending on appeal. Accordingly, the trial judge found that Wade was unavailable as a witness pursuant to FRE 804(a)(1) and Crawley, supra.

The trial judge after hearing argument of counsel and considering the provisions of the Federal Rule of Evidence 804(b)(3) as well as Kentucky authority concluded that the out-of-court statement of Wade at the time of its making was so far contrary to Wade's penal interests and subjected him to criminal liability that a reasonable man in such a position would not have made the statement unless it was true. He further concluded that the admissions against Taylor in Wade's statement were essentially consistent with his sworn in-court testimony as well as the testimony of three other prosecution witnesses, and in the context of other admissions against Taylor, exclusion would appear to deprive the finder of fact of relevant and reliable evidence.

Trustworthiness of a hearsay statement against penal interest is a prerequisite to its admissibility. Crawley, supra, quoting from Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), set out the four factors the Supreme Court deemed relevant to the trustworthiness of such statements: (1) The time of the declaration and the party to whom made; (2) the existence of corroborating evidence in the case; (3) the extent to which the declaration is against the declarant's penal interest and (4) the availability of a declarant as a witness.

Wade's statement was properly admitted into evidence. His statement was made to the police prior to his arrest but after he had been picked up for questioning. He was Mirandized three times, informed that he failed a polygraph test and

Page 75

identified in a lineup prior to his confession. His final waiver of rights was tape-recorded, reduced to writing and signed in the presence of two police officers. The mere fact that Wade had initially denied any involvement in the crimes and confessed only after receiving notice that he had been identified in the lineup does not render the confession involuntary. Cf. Commonwealth v. Vanover, Ky., 689 S.W.2d 11 (1985). There is no suggestion that Wade was attempting to curry favor from the arresting officer. He confessed without promises being made. While he was not under arrest, Wade certainly knew he was a suspect. The statement Wade gave to the police was corroborated in part by five different witnesses. Every material detail of Wade's confession was corroborated by independent testimony and physical evidence.

Wade's statement was against his own interest. His confession was not any less a statement against his own penal interest simply because it also implicated Taylor. Wade admitted that he actively participated in the kidnapping and robbery. He said that he bound, gagged and robbed the victims. He also described the events which culminated in the shootings. The determination of whether an out of court statement is against the declarant's penal interest does not require an assessment of the declarant's subjective motivation. The determination should be made upon an examination of the statement made and application of an objective measure of whether it is against penal interest. By such an assessment, Wade's confession was a statement against his own interest for the purpose of FRE 804(b)(3).

Federal Rule of Evidence 804(a), in relevant part, provides that a declarant is not available for the purposes of the hearsay rule if he:

1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or

2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so....

Wade informed the Court that in spite of the prosecutor's proffered immunity he would invoke his fifth amendment privilege against self-incrimination if called to testify. The trial judge correctly determined that Wade who had a pending criminal appeal at the time was unavailable as a witness under FRE 804(a).

Courts are reluctant to admit hearsay evidence because of the its inherent unreliability. Numerous exceptions have been carved out of the general prohibition against admitting hearsay. FRE 804(b)(3), statements against penal interest, allows hearsay statements to be admitted if they are against declarant's penal or proprietary interest, trustworthy, and the declarant is unavailable. No lack of trustworthiness could be implied regarding the content of Wade's confession or the circumstances surrounding it. There was no factual basis for the presumptive suspicion that frequently relates to a codefendant's confession. Wade's confession was corroborated in every material detail by independent testimony and physical evidence. Wade was unavailable, his statement was against his own interest, and from the physical evidence, the testimony of witness and Wade's confession, it was reliable and trustworthy. The trial judge was correct in admitting Wade's statement. As a reviewing court, we find no reason to disturb the action taken. Reichle v. Reichle, Ky., 719 S.W.2d 442 (1986).

Taylor argues that the introduction of a nontestifying-codefendant's confession invariably results in a violation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). He also contends that Rule 804(b)(3) is unconstitutional. The trial judge correctly ruled that the edited confession was admissible in Taylor's separate trial. The confession was the last item of evidence presented by the prosecution in the case in chief. It was edited to delete all references to other crimes.

Bruton, supra, holds generally that a defendant's Sixth Amendment right

Page 76

to confrontation is violated when he is directly incriminated by the confession of a nontestifying codefendant. The rationale for this general rule of constitutional law is the same as that underlying the general prohibition against hearsay evidence, that is the presumptive unreliability of an extra-judicial confession. Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987), a conspiracy case, discussed the...

To continue reading

Request your trial
38 practice notes
  • Taylor v. Simpson, Civil Action No. 5: 06-181-DCR
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Eastern District of Kentucky
    • September 30, 2014
    ...summary of facts is derived largely from the Supreme Court of Kentucky's opinion in Taylor's direct appeal, Taylor v. Commonwealth, 821 S.W.2d 72 (Ky. 1990) (Taylor I). In 1984, Taylor and co-defendant George Wade were charged in the Jefferson Circuit Court with the murder, kidnapping, robb......
  • Taylor v. Simpson, No. 14-6508
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 25, 2020
    ...(which the court rejected without comment) and a Confrontation Clause claim regarding Wade's confession. Taylor v. Kentucky (Taylor I) , 821 S.W.2d 72 (Ky. 1991). Taylor filed a Kentucky Rule 11.42 post-conviction motion that renewed the Confrontation Clause claim and raised an ineffective-......
  • Fulcher v. Motley, No. 03-6216.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 18, 2006
    ...inherent trustworthiness, not by reference to other evidence at trial"). Fulcher also cited the Kentucky case of Taylor v. Commonwealth, 821 S.W.2d 72 (Ky.1990), which allowed an unavailable party's confession to be admitted against his alleged accomplice, for the proposition that a non-tes......
  • Hodge v. Com., No. 1996-SC-1085-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • February 24, 2000
    ...the issue following voir dire. There is no statutory entitlement to a second change of venue. KRS 452.240; Taylor v. Commonwealth, Ky., 821 S.W.2d 72 (1990), cert. denied, 502 U.S. 1100, 112 S.Ct. 1185, 117 L.Ed.2d 428 (1992), overruled on other grounds, St. Clair v. Roark, 10 S.W.3d 482 (K......
  • Request a trial to view additional results
38 cases
  • Taylor v. Simpson, Civil Action No. 5: 06-181-DCR
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Eastern District of Kentucky
    • September 30, 2014
    ...summary of facts is derived largely from the Supreme Court of Kentucky's opinion in Taylor's direct appeal, Taylor v. Commonwealth, 821 S.W.2d 72 (Ky. 1990) (Taylor I). In 1984, Taylor and co-defendant George Wade were charged in the Jefferson Circuit Court with the murder, kidnapping, robb......
  • Taylor v. Simpson, No. 14-6508
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 25, 2020
    ...(which the court rejected without comment) and a Confrontation Clause claim regarding Wade's confession. Taylor v. Kentucky (Taylor I) , 821 S.W.2d 72 (Ky. 1991). Taylor filed a Kentucky Rule 11.42 post-conviction motion that renewed the Confrontation Clause claim and raised an ineffective-......
  • Fulcher v. Motley, No. 03-6216.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 18, 2006
    ...inherent trustworthiness, not by reference to other evidence at trial"). Fulcher also cited the Kentucky case of Taylor v. Commonwealth, 821 S.W.2d 72 (Ky.1990), which allowed an unavailable party's confession to be admitted against his alleged accomplice, for the proposition that a non-tes......
  • Hodge v. Com., No. 1996-SC-1085-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • February 24, 2000
    ...the issue following voir dire. There is no statutory entitlement to a second change of venue. KRS 452.240; Taylor v. Commonwealth, Ky., 821 S.W.2d 72 (1990), cert. denied, 502 U.S. 1100, 112 S.Ct. 1185, 117 L.Ed.2d 428 (1992), overruled on other grounds, St. Clair v. Roark, 10 S.W.3d 482 (K......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT