Terry v. Com., No. 2003-SC-0237-MR.

• Decision Date: 20 January 2005
• Docket Number: No. 2003-SC-0237-MR.
• Citation: 153 S.W.3d 794
• Parties: Denarrius TERRY, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.
• Court: United States State Supreme Court — District of Kentucky

153 S.W.3d 794

Denarrius TERRY, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.

No. 2003-SC-0237-MR.

Supreme Court of Kentucky.

January 20, 2005.

Randall L. Wheeler, Assistant Public Advocate, Frankfort, KY, Counsel for Appellant.

Gregory D. Stumbo, Attorney General, John R. Tarter, Office of the Attorney General, Assistant Attorney General, Criminal Appellate Division, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice COOPER.

Appellant, Denarrius Terry, was convicted by a Logan Circuit Court jury of murder, robbery in the first degree, and wanton endangerment in the first degree, and sentenced to a total of forty-five years in prison. He appeals to this Court as a matter of right, Ky. Const. § 110(2)(b), asserting five claims of reversible error, viz: (1) admission of hearsay statements of a nontestifying accomplice; (2) limitation of defense cross-examination of an alleged eyewitness; (3) excessive examination by the trial judge of another alleged eyewitness; (4) admission of juvenile misdemeanor adjudications during the penalty phase of the trial; and (5) admission of improper victim impact evidence during the penalty phase of the trial. We reverse and remand for a new trial primarily because of the admission into evidence of a nontestifying accomplice's out-of-court statements that inculpated Appellant as the perpetrator of the offenses. We will also address other issues that are likely to recur upon retrial. Springer v. Commonwealth, 998 S.W.2d 439, 445 (Ky.1999).

In the early morning of December 25, 2001, the Russellville Police Department received a call that a shooting had occurred at Big Jessie's bar in Russellville, Kentucky. When the police arrived, they found Theodore ("Candy Man") Suggs shot dead inside the bar. Waiting outside were Nakeitha ("KiKi") Jackson, the owner of Big Jessie's, Calvin Merrell, the bartender, and Servado Boyd, a passer-by. Jackson and Merrell told police that they and Alexander ("RiRi") Browder had been present when Appellant shot and killed Suggs, but that Browder had fled the scene. Boyd had arrived after the shooting. Jackson told the police that Appellant and Suggs were "shooting" dice, that Suggs had won all of Appellant's money, and that Appellant had departed with the ostensible intent of getting more money. Upon his return, Appellant pulled a pistol and began shooting, killing Suggs and narrowly missing Jackson. Jackson then removed $300 to $400 from Suggs's vest and gave it to Appellant who then departed. Merrell gave a videotaped statement at the police station essentially agreeing with Jackson. Browder subsequently told police that he did not witness the shooting but that, as he was leaving Big Jessie's, he saw "out of the corner of his eye" Appellant pull something from his waist area. Once outside, Browder heard gunshots and left the scene.

When contacted by police, Appellant admitted that he was at Big Jessie's on the night of December 24-25, 2001, but denied shooting Suggs, claiming that Jackson Merrell, and Suggs were still in the bar when he left. The murder weapon, a handgun owned by Cantrell Nourse, was later found under a mattress in the bedroom of Nourse's residence. Appellant was charged with and convicted of the murder and robbery of Suggs and the wanton endangerment of Jackson. Nourse was charged in a separate indictment with complicity to murder and rob Suggs, as well as possession of marijuana and being a felon in possession of a handgun. At Appellant's trial, Nourse invoked his Fifth Amendment right not to testify. Thus, he was an "unavailable" witness as defined in KRE 804(a)(1).

I. HEARSAY.

Julie Bogle, Nourse's domestic companion, testified that she and Nourse were asleep in bed when someone knocked on their door between 1:30 and 2:00 a.m. on December 25, 2001. Nourse went into the living room to answer the door. Bogle could hear Nourse talking with a person whom she recognized by voice as Appellant. Nourse then returned to the bedroom and retrieved something from between the bed's mattresses. Bogle could not see the object retrieved, but Nourse later told her that it was his handgun. Although there was no objection to this statement, a bench conference ensued concerning whether Nourse's statement fell within any exception to the hearsay rule. The trial court ultimately concluded that it did not. Defense counsel did not request an admonition to the jury to disregard the statement and no admonition was given.

Bogle then testified that Nourse returned to the living room and that she heard the front door shut. Nourse then returned to bed. Approximately twenty to thirty minutes later, Bogle heard another knock at the front door and Nourse again went into the living room. Bogle again heard him talking with a person whom she recognized by voice as Appellant. Nourse re-entered the bedroom with a handgun, placed the gun in a dresser drawer, and began getting dressed. When Bogle asked him where he was going, he extended his hand to show her five empty shell casings and said that he "had to go take care of them." Nourse then left the house for about fifteen minutes. When he returned, Bogle overheard Nourse say, "Cuz, you've got it lit up like the Fourth of July down there." The trial court overruled Appellant's objection to this statement, apparently believing either that it was admissible as an adoptive admission, KRE 801A(b)(2), or that there was no proof that Nourse was addressing Appellant when he made the statement. Shortly thereafter, however, as Bogle was entering the bathroom, she observed Appellant in the living room. She also observed Nourse standing at the bathroom sink washing blood off of a wad of money.

When Nourse finally returned to bed at about 4:30 to 5:00 a.m., he told her that "it was Denarrius that had come in the first time and got his gun and he was bringing it back because he had killed a guy named `Candy Man.'" The trial court overruled Appellant's objection to this testimony in the belief that it fell within the hearsay exception for admissions by a party. KRE 801A(b)(1). While that would have satisfied the hearsay aspect of a statement made by Appellant to Nourse, no exception applies to Nourse's repetition of the statement to Bogle. KRE 805; see Thurman v. Commonwealth, 975 S.W.2d 888, 893 (Ky.1998) (double hearsay admissible only if each part of the combined statements conforms with an exception to the hearsay rule). Nevertheless, when Bogle further testified that she did not know who had told Nourse that Appellant had killed "Candy Man," the trial court retroactively sustained the objection and admonished the jury "to disregard the statement she made as to the statement Mr. Nourse made to her about who committed this act." Appellant's motion for a mistrial was overruled.

Bogle's testimony that Nourse told her that the object he retrieved from between the mattresses of their bed was his handgun fell within the hearsay exception for statements against interest, KRE 804(b)(3), as a declaration against Nourse's own penal interest since it implicated him in the murder of Suggs and in the additional offense of possession of a handgun by a convicted felon. See Brock v. Commonwealth, 947 S.W.2d 24, 31 (Ky.1997). As also required by KRE 804(b)(3), the statement was corroborated by proof that Nourse's handgun was used to kill Suggs. At that point, the hearsay statement tended to inculpate only Nourse and, no doubt, that was why defense counsel did not object to its admission. However, Bogle's later testimony that Nourse told her that he gave the gun to Appellant who then used it to kill Suggs was clearly inadmissible against Appellant. Bruton v. United States, 391 U.S. 123, 129 n. 3, 88 S.Ct. 1620, 1624 n. 3, 20 L.Ed.2d 476 (1968) ("We emphasize that the hearsay statement inculpating petitioner was clearly inadmissible against him under traditional rules of evidence, ... the problem arising only because the statement was ... admissible against the declarant....").

The "Fourth of July" statement could not have referred to the shooting itself, if Bogle was truthful in her testimony that Nourse did not leave the residence until after he placed the gun in the dresser and showed her the spent shell casings. Under that scenario, a reasonable jury could assume that the "Fourth of July" statement referred to the presence of police vehicles with flashing lights at the scene of the crime. In fact, the prosecutor admitted as much when the trial court inquired as to the relevancy of the statement and the prosecutor replied that Suggs's murder was the only exciting event that occurred in Russellville on Christmas morning, 2001. Of course, the jury could have disbelieved Bogle's exculpation of Nourse and believed that Nourse accompanied Appellant to Big Jessie's, and that the "Fourth of July" remark did refer to the shooting. Either way, Nourse's statement inferentially inculpated Appellant in Suggs's murder. Bogle was not present in the room with Appellant when Nourse made the statement and did not discover that Appellant was still in the residence until after the statement was made. She could not and did not testify that Appellant agreed or disagreed with the statement, or that he heard it and did not deny it. Thus, the statement was not admissible as an adoptive admission. Robert G. Lawson, The Kentucky Evidence Law Handbook § 8.20[4], at 595 (4th ed. LexisNexis 2003) ("A statement may not be admitted as an adoptive admission unless it is established that the party heard and understood the statement and remained silent.") (citing James v. Wilson, 95 S.W.3d 875, 899 (Ky.App.2002); Ray v. Ray, 196 Ky. 579, 245 S.W. 287, 290 (1922)). Compare Marshall v. Commonwealth, 60 S.W.3d 513, 521 (Ky.2001); Hodge v. Commonwealth, 17 S.W.3d 824, 847 (Ky.2000).

Finally, as the trial court ultimately concluded, Bogle's testimony that Nourse told her that Appellant had used his gun to kill "Candy Man" did not fall under...