Released for Publication July 2, 2015.
ON APPEAL FROM LAWRENCE CIRCUIT COURT. HONORABLE JOHN DAVID PRESTON, JUDGE. NO. 11-CR-00110.
COUNSEL FOR APPELLANT: Samuel N. Potter, Assistant Public Advocate.
COUNSEL FOR APPELLEE: Jack Conway, Attorney General of Kentucky, James Daryl Havey, Assistant Attorney General.
Appellant, Arnold Moore, appeals from a judgment of the Lawrence Circuit Court imposing a sentence of fifty years' imprisonment following a jury trial in which he was convicted of manufacturing methamphetamine (first offense), first-degree possession of a controlled substance, and of being a first-degree persistent felony offender (PFO). Appellant alleges two errors: (1) the trial court refused to allow his girlfriend to testify under the statements-against-interest exception to the general exclusion of hearsay evidence about certain out-of-court statements uttered to her by a declarant whose unavailability at trial was not shown; and (2) the trial court declined to grant a directed verdict on the PFO charge.
We reject Appellant's arguments with respect to the trial court's evidentiary ruling excluding the hearsay testimony of Melinda Keeton, and so we affirm his convictions for the offenses of manufacturing methamphetamine (first offense) and first-degree possession of a controlled substance. However, based upon our conclusion that the evidence presented was insufficient to sustain the PFO verdict, we reverse that conviction and vacate the enhanced
sentence arising therefrom. We remand the case to the Lawrence Circuit Court for sentencing on the underlying felony convictions and entry of a judgment consistent with this opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
In the fall of 2011, an unidentified woman entered the sheriff's office in Lawrence County to complain of criminal activity at a house rented by Appellant. Two police officers went to investigate. Upon arriving at the house, they smelled ammonia, an odor commonly associated with the manufacture of methamphetamine, and they saw Appellant fleeing from the side entrance of the house. Upon command from the officers, he halted and joined them on the front porch where he gave the officers permission to enter the house.
Almost immediately after entering, the officers encountered Rodney Young. They escorted both Young and Appellant outside, placed them in separate cruisers, and informed them of their Miranda rights. A search of the residence produced an array of methamphetamine paraphernalia and ingredients indicative of an active methamphetamine lab. At the scene, Appellant admitted to using and manufacturing methamphetamine.
Appellant was indicted for manufacturing methamphetamine (first offense), first-degree possession of a controlled substance, and for being a first-degree persistent felony offender. At the conclusion of the guilt phase of the trifurcated trial, the jury returned a guilty verdict on both drug offenses and, during the sentencing phase, recommended a sentence of fifteen years' imprisonment. In the phase that followed, the jury convicted Appellant of being a first-degree persistent felony offender, for which the jury recommended an enhanced sentence of fifty years' imprisonment. The trial court accepted the jury's recommendation and sentenced Appellant accordingly.
A. Mere Speculation That a Witness may Assert his Right Against Self-Incrimination Does not Render a Witness Unavailable for Purposes of KRE 804(b)(3).
At the time of his arrest, Appellant was involved in a romantic relationship with Melinda Keeton. Appellant's cousin, Jason Moore, and Jason's brother, Dale Moore, reportedly resented this relationship. Dale had been Keeton's long-time boyfriend. Shortly after breaking up with Dale, Keeton began cohabiting with Appellant. She gave birth to Appellant's child; the child was eight-months old at the time of Appellant's arrest.
While Appellant awaited trial, Keeton was jailed on a matter unrelated to this case. At the same time, Dale was lodged in the same jail and the two were placed in adjacent holding cells. According to Keeton, Dale made three critical statements to her during their time together in jail: (1) he had set up Appellant for his pending prosecution; (2) he was glad Appellant was going down for something he did not do; and (3) he was glad Appellant's child would grow up without a father.
At trial, Appellant attempted to mount an alternative perpetrator defense. In support of this defense, he called Keeton to testify to the exculpatory statements purportedly uttered to her by Dale while they were incarcerated together. The trial court sustained the Commonwealth's objection to Keeton's proposed testimony on hearsay grounds. Appellant properly inserted Keeton's avowal testimony into the record to preserve the trial court's ruling for appeal.
Hearsay-an out-of-court statement by a declarant offered to prove the truth of the matter asserted-is generally inadmissible at trial unless " it meets one of our well established exceptions." Wells v. Commonwealth, 892 S.W.2d 299, 301, 42 2 Ky.L.Summary 44 (Ky. 1995); KRE 802. These exceptions, " supported by the theory that the character and context of [the] statement adds sufficient reliability to permit admission[,]" " grew from ancient common law." Id. The only exception potentially applicable to the instant case is the " statement against interest" exception codified as KRE 804(b)(3).
KRE 804(b)(3) allows the admission of a " statement which . . . so far tended to subject the declarant to civil or criminal liability . . . that a reasonable person in the declarant's position would not have made the statement unless believing it to be true." However, before we examine whether Dale's statements to Keeton would qualify under KRE 804(b)(3) as a " statement against interest," we must first address the overarching condition for admitting any of the hearsay exceptions covered by KRE 804: the unavailability of the declarant as a witness. At this point, Appellant's argument crumbles.
In the broad sense, KRE 804 applies only to situations in which the declarant--the individual whose out-of-court statements are proffered as evidence--is unavailable as a witness.
Unavailability of the declarant arises when the declarant: (1) is " exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement" ; (2) " [p]ersists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so" ; (3) " [t]estifies to a lack of memory of the subject matter of the declarant's statement" ; (4) " [i]s unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity" ; or (5) " [i]s absent from the hearing and the proponent of the statement has been unable to procure the declarant's attendance by process or other reasonable means." KRE 804(a)(1)-(5).
It is conceded that Dale's alleged jailhouse statements are against his penal interest. And, although these out-of-court statements may be construed as tending to exonerate Appellant, Appellant has never shown that Dale was unavailable to personally testify at trial about the subject matter of the statements. Appellant argues that if Dale had been called to testify at trial, he would have invoked his privilege against self-incrimination guaranteed by the Fifth Amendment to the United States Constitution. But because no one attempted to procure Dale's ...