Taylor v. Commonwealth, No. 2004-SC-0018-MR (KY 5/19/2005)

• Decision Date: 19 May 2005
• Docket Number: No. 2004-SC-0018-MR.,2004-SC-0018-MR.
• Parties: Victor Dewayne TAYLOR, Appellant v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

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Victor Dewayne TAYLOR, Appellant v. COMMONWEALTH of Kentucky, Appellee.

No. 2004-SC-0018-MR.

Supreme Court of Kentucky.

May 19, 2005.

Appeal from Fayette Circuit Court, Honorable Barry Willett, Judge, No. 85-CR-00334.

Thomas M. Ransdell, Assistant Public Advocates, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.

Gregory D. Stumbo, Attorney General of Kentucky, David A. Smith, Ian G. Sonego, Assistant Attorneys General, Criminal Appellate Division, Office of the Attorney General, Frankfort, KY, Counsel for Appellee.

OPINION

LAMBERT, Chief Justice.

Once again this Court is faced with deciding an issue that arises from one of the most heinous and highly publicized murder cases in Kentucky's recent history. Victor Taylor was convicted of the murder, kidnap, and robbery of two Trinity High School students as they were on their way to attend a high school football game. Taylor was also convicted of sodomizing one of the students. As a result, he received two death sentences for the murder convictions, two death sentences for the kidnapping convictions,¹ and a total of sixty years imprisonment for the two counts of robbery and one count of sodomy. This appeal comes to this Court upon denial of his CR 60.02 motion for a new trial.

Taylor asserts that he is entitled to a new trial for two reasons, and seeks a declaratory judgment as to the constitutionality of KRS 422.285. First, he claims that the recanted testimony of his co-conspirator, George Wade, suffices to exculpate him from guilt, entitling him to a new trial. Second, Taylor claims that a juror's false responses to questions about her views on capital punishment during voir dire entitles him to a new trial. Finally, Taylor argues that KRS 422.285 is unconstitutional because it infringes upon the Supreme Court's rule-making authority under §116 of the Constitution of Kentucky. We affirm the trial court's denial of Taylor's CR 60.02 motion; and we find that KRS 422.285 is an unconstitutional infringement upon the Supreme Court's rule-making prerogatives, but we extend comity to the statute and will enforce its provisions.

I. Facts

The facts of this case are recorded in detail in this Court's opinion by Justice Wintersheimer on direct appeal, so we will rely in large part upon that recitation.² Therefore, we reiterate only the pertinent facts to the issues currently before us. On Saturday, September 29, 1984, high school students Richard Stephenson and Scott Nelson stopped at a restaurant to ask for directions to a high school football game. While at the restaurant, Taylor and Wade kidnapped the students at gunpoint. Cecil Pepper and Dino Pace testified that they witnessed the abduction and followed the car a few blocks until it turned down a side street. Both Pepper and Pace identified Taylor as the kidnap gunman. After reaching a secluded area, Taylor and Wade forced the students to get out of the car. In an attempt to rob them, Taylor and Wade forced them to take off their clothes and hand over their personal property. After the boys had taken off their clothes, Taylor sodomized one of them. To avoid being turned in to the police by the victims, Taylor shot each of them in the head. Their bodies were each found with a gunshot wound to their temples from point-blank range.

The tattered and partially-clothed bodies of the victims were found early the next morning and an investigation ensued. A few days later the police arrested Taylor and Wade based upon an abundance of evidence both physical and testimonial. Wade was convicted first, and then Taylor was taken to trial partially upon a statement made by Wade to police, which is a subject of this appeal.

II. Wade's recantation

Taylor's CR 60.02 motion can be separated into two issues. We take them one at a time. First, Taylor argues that he is entitled to a new trial because Wade recanted his statement to the police that Taylor was with him when he kidnapped, sodomized and killed the boys. Wade made this statement at Taylor's RCr 11.42 evidentiary hearing in 1997, which was more than eleven years after Taylor's conviction. The trial court ruled that Wade's new testimony that contradicted his previous testimony was not enough to entitle Taylor to a new trial, and that ruling is reviewed for an abuse of discretion.³ In denying relief pursuant to CR 60.02, the trial court cited Hensley v. Commonwealth⁴ for the proposition that recanted testimony of a trial witness is viewed with suspicion and does not normally warrant a new trial. In Hensley, a "vital witness" testified that the defendant was the only one shooting when the decedent was killed. That "vital witness" later recanted and stated in an affidavit that he was not sure who shot the decedent and that "others were shooting at the time the decedent... fell."⁵ Justice Palmore, in an opinion rich in brevity, noted that this recantation was to be given little weight, and, as such, was not sufficient to entitle the defendant to a new trial.⁶ The truism that recanted testimony is not reliable and should therefore be given little weight is even more relevant to this case. This is so because Wade recanted his statement that Taylor committed the heinous crimes against the Trinity students more than eleven years after Taylor's conviction, and only after the Parole Board denied him parole and ordered him to serve out the remainder of his sentence. The trial court did not find Wade's recantation credible. Therefore, we agree with the trial court's ruling that Taylor is not entitled to a new trial because of the recanted testimony.

However, though not briefed by the parties, we note that Wade's statement to the police admitted at trial was not subject to cross-examination. And, though this issue was considered on direct appeal, the United States Supreme Court has since held, in Crawford v. Washington, admission of this type of testimony to be violative of the Sixth Amendment's Confrontation Clause.⁷ Specifically, the Court noted that out-of-court testimonial statements are inadmissible as a violation of the Confrontation Clause "unless [the witness] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination."⁸ Here, though Wade was unavailable under KRE 804(a)(1), Taylor had at no time the ability to cross-examine Wade's statement to the police. Therefore, if Crawford is applicable, Taylor's constitutional right to confront witnesses against him was violated. However, that does not end the question, for Taylor is only entitled to a new trial if the error prejudiced him. In other words, if the admission of the statement amounted to harmless error beyond a reasonable doubt,⁹ then this Court will not disturb Taylor's conviction.

To determine whether the admission of Wade's statement was harmless beyond a reasonable doubt, we must inquire whether excluding this evidence from the jury's consideration would have changed the result. And since the old trial cannot be recreated, we look to what might have happened upon retrial. In this case, though Wade's statement could not be used substantively at a new trial due to Crawford, if Wade testified to the contrary it would likely come into play because it would be inconsistent.¹⁰ Therefore, this evidence in and of itself offers very little to Taylor in his attempt to show that using Wade's statement for substantive reasons is reversible error. But even if this statement were out of the universe of evidence that a jury would be allowed to consider upon a new trial, i.e., not admissible even as a prior inconsistent statement, it would not be enough to turn the verdict in his favor. The other evidence against Taylor is mountainous. And we are convinced that no reasonable jury could acquit Taylor of his deplorable crimes even if half the evidence was stricken from its deliberations. In short, this is the precise type of case for which the harmless error rule exists.

The evidence that led the jury to return a guilty verdict against Taylor is too voluminous to recount in full. What follows is some of the highlights. Dino Pace and Cecil Pepper witnessed the events that took place at the restaurant where the boys were kidnapped, and they both identified Taylor as the man that kidnapped the boys at gunpoint. In fact, Taylor had stood in line next to them as they were ordering food. After the abduction, Pace and Pepper followed the car until it pulled off onto a side street. Pace and Pepper had ample opportunity to view Taylor. And though Taylor was not picked out in a photo line-up both witnesses identified Taylor at trial as the gunman, and identified Wade in a line-up. Taylor was never placed in a line-up.

Jeffrey Brown, a jailhouse lawyer, testified that Taylor told him what happened as part of an attempt by Taylor to obtain legal advice. Taylor admitted to the shooting in his conversation with Brown, stating that he had to do it after Wade said Taylor's name as he was sodomizing one of the boys.

Eugene Taylor, Taylor's cousin, saw Taylor and Wade in a car with the boys on the night of the murder. Later that night Eugene also saw Taylor and Wade with a Trinity High School gym bag at Taylor's mother's house. Taylor and Wade were also in possession of a pair of gray tennis shoes, a pair of blue jeans, a Led Zeppelin cassette tape, a watch, a ring, and some firecrackers. Eugene further testified that he overheard Taylor ask his sister whether the news had said anything about two white boys being murdered. Then Eugene heard Taylor tell his sister that he shot the two boys. Eugene further testified that Taylor exchanged pistols and money with his sister, and then divided the money with Wade.

Beverly Shackleford, who had known Taylor for more than ten years, testified that Taylor tried to sell her a Trinity class ring and school jacket on the morning after the murders. Neither the jacket nor ring of one of the boys had been found at the crime scene. The...