Opinion
NO. 2017-CA-001665-MR
02-07-2020
STEVEN D. ROARK APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Shannon Dupree Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Joseph A. Beckett Assistant Attorney General Frankfort, Kentucky
TO BE PUBLISHED APPEAL FROM KNOX CIRCUIT COURT
HONORABLE DAVID A. TAPP, SPECIAL JUDGE
ACTION NO. 15-CR-00112-003 OPINION
REVERSING AND REMANDING
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BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND K. THOMPSON, JUDGES. THOMPSON, K., JUDGE: Steven D. Roark appeals from a final judgment in which he was convicted and sentenced after a jury trial, arguing that the Knox Circuit Court abused its discretion in excluding exculpatory testimony from his co-defendant's plea hearing and committed error regarding jury instructions.
On February 25, 2015, Roark, Alvin Couch, Tonia Couch (Alvin's wife), D.C. (Alvin's minor son), Kim Hammonds and Ashley Wilder-Smith were in Tonia's trailer, when Trooper Taylor Mills and Trooper Jason Partin arrived to do a welfare check based upon a report that there was a juvenile at a residence where there was a possible methamphetamine lab. Tonia, Wilder-Smith and D.C. were in the living room and Roark, Hammond and Alvin were in a bedroom in the back of the trailer. Tonia let the police in, told them no one else was present and then consented to a search after the police heard a sound in the back of the trailer. The police found Roark, Hammond and Alvin in the bedroom lying on a mattress and feigning sleep.
The police found a small plastic baggie containing white powder stored in a cellophane wrapper on the floor next to the mattress. In the attached bathroom, the police found a funnel with a white, powdery substance inside, a used coffee filter and a large bag of salt. Inside the toilet they found a plastic baggie with clear liquid and a spoon. The police also found needles in the bathroom cabinet. Inside the bathroom floor vent police found a modified Mountain Dew bottle with green tubing attached, another plastic bottle, which contained a clear liquid substance, and a plastic bag containing coffee filters.
The police arrested everyone in the trailer. As no one admitted that the drugs and paraphernalia were theirs, Alvin, Tonia, Hammonds, Wilder-Smith and Roark were all indicted for: (1) manufacturing methamphetamine, first offense; (2) possession of a controlled substance, first degree; (3) controlled substance endangerment to a child, fourth degree; (4) tampering with physical evidence; and (5) possession of drug paraphernalia.
Roark was also indicted for being a persistent felony offender in the second degree but prior to trial, the Commonwealth dismissed this charge.
Before Roark went to trial, Tonia and Wilder-Smith both pled guilty to reduced charges in exchange for truthful testimony against Roark and Hammons. Tonia pled guilty to facilitation to manufacturing methamphetamine and Wilder-Smith pled guilty to possession of a controlled substance.
Tonia testified at trial that she received a sentence of five years of incarceration, probated for five years, and the dismissal of the remaining counts against her in exchange for her truthful testimony. She admitted she was aware that drug manufacturing was occurring in her residence.
Alvin entered an open plea of guilty to all the indicted charges against his counsel's advice. During the entry of Alvin's plea, Alvin repeatedly testified that he acted alone. He also admitted he was the one who stuffed the one-step lab in the air vent.
During Roark's joint trial with Hammonds held on May 15, 2017, the jury heard testimony for the Commonwealth from Trooper Mills, Trooper Partin, Jamie Hibbard of the Kentucky State Police Lab, Detective Jason Browning of the KSP Drug Enforcement Special Investigations Unit and Tonia. The troopers testified about what they found when they searched as detailed above. Hibbard testified as to the analysis that the baggie of white powder in the bedroom was methamphetamine and the clear liquid in the plastic bottle from the vent was methamphetamine. Detective Browning testified about how people manufacturing methamphetamine acted, including that they burned their trash to conceal evidence of the manufacture of methamphetamine. He also testified as to the purpose of the items found in making methamphetamine and that the plastic bottles in the bathroom vent were a one-step methamphetamine lab and an HCL generator. Although there was a lot of testimony about the manufacture of methamphetamine and the presence of drugs, paraphernalia and the hidden location of the lab, this testimony did not tie Roark to these things beyond his mere presence in the trailer.
Tonia's testimony connected Roark with the manufacture of methamphetamine. Tonia testified that Roark lived in the trailer with her and Alvin and was in the process of moving out when they were arrested. She claimed Roark was staying in the master bedroom by the back door (which was where the drugs were found), while she chose to occupy a smaller bedroom to be closer to the bedroom where her children slept.
Tonia testified that when the police knocked, Roark yelled from the back, "Don't open the door," but she disregarded his command, opened the door and granted the police consent to search. She testified that Roark burned the trash every day. She also testified that Roark called her in May or June of 2015 and "apologized for bringing it into my house."
At the close of the Commonwealth's case, Roark moved for a directed verdict on the felony charges, which was denied except as to controlled substance endangerment to a child, which was granted as there was no evidence that Roark knew D.C. was present.
Roark testified in his own defense. He testified that on the morning when the police found the drugs, Wilder-Smith drove Hammonds and him to Tonia's trailer in the morning at around 8:30 or 9:00 a.m. as Tonia wanted a ride to go pick up her children. He testified that when they arrived, they entered through the back door and went in the back bedroom where they found Tonia putting on her make-up and fixing her hair to prepare to go to town. Later, Tonia left the bedroom and closed the door behind her.
Roark testified that he, Alvin and Hammonds sat down on the mattress on the floor in the bedroom and they were playing on their phones and listening to music. He admitted to using methamphetamine at that point and admitted that he would have recognized methamphetamine manufacturing if he had seen it, but denied going into the bathroom, seeing the lab, seeing any components of methamphetamine manufacturing except maybe salt sitting on a shelf, having drugs on him or that the bag of methamphetamine belonged to him. He denied bringing any of the contraband items into the house and denied destroying or concealing anything.
Roark also denied living in the trailer. He claimed that Tonia moved in a couple of months after she separated from Alvin and he helped her move in her furniture and get rid of items in the trailer left by the previous occupant. He admitted he stayed overnight a couple of times when he was working on this. He stated he did not receive mail there; instead, he lived with his mother.
Roark denied calling and apologizing to Tonia. He testified she put some money on his phone account when he was in jail. Later, he called Tonia because he heard she was sick. He testified that during this phone call Tonia "was basically apologizing to me for me being locked up for this matter."
Roark admitted he was a drug addict and used about ¼ gram of methamphetamine a day, every day or every other day when he could afford it. He testified he started using methamphetamine in 2013 or 2014, recognized a lot of the components for it and had seen recipes for making it. He also admitted he was a convicted felon.
Roark attempted to introduce into evidence a certified recording of Alvin's plea hearing. During a bench conference, Roark explained he wanted to introduce into evidence Alvin's statement that he acted alone as it supported his alternate perpetrator theory. Roark claimed he had a due process right to get such evidence admitted and could not receive a fair trial without it.
Initially, Roark, the Commonwealth and the trial court seemed to be under the impression that Alvin was unavailable pursuant to Kentucky Rules of Evidence (KRE) 804(a)(5) as he was subpoenaed and did not attend the trial and, therefore, his former testimony could be admitted under KRE 804(b)(1) if the Commonwealth had the motive and opportunity to develop his testimony or (b)(3) if his statement against interest was trustworthy. Roark's counsel told the trial court that he subpoenaed Alvin and had his investigator serve him in jail. The Commonwealth's main objection to the use of Alvin's prior testimony was that it did not have an opportunity to cross-examine Alvin and his testimony was untrustworthy. Roark also relied on KRE 803(6) (records of regularly conducted activity) and (8) (public records) as bases for admitting Alvin's testimony.
The trial court denied the motion determining that it was not established that Alvin was truly unavailable as there was no court order compelling Alvin to be in court as a witness and there was no evidence that a subpoena was served upon him. The trial court also rejected the other grounds for admission, explaining that while there was no issue that the DVD of Alvin's plea hearing was a valid record, it did not fit neatly into either category Roark claimed provided a valid hearsay exception. The trial court was also troubled by the fact that while Alvin's statement was made against Alvin's penal interest under oath, it might not be trustworthy as others had pled guilty to facilitation or possession which indicated that Alvin did not act alone. The trial court deemed the statement somewhat untrustworthy.
Roark presented his own proposed jury instructions. He also requested an instruction for facilitation to manufacture methamphetamine as a lesser-included offense of manufacturing methamphetamine. Roark did not request any other instructions for lesser-included offenses, such as unlawful possession of a methamphetamine precursor.
Even though Alvin had already pled guilty to manufacturing the methamphetamine in the bathroom, the Commonwealth sought to convict Roark as a principal rather than an accomplice and did not request a complicity instruction. The trial court determined that the Commonwealth's proposed instructions on manufacturing were appropriate and Roark was not entitled to an instruction on facilitation because it was not a lesser-included offense.
After the jury was instructed, Roark was found guilty of manufacturing methamphetamine, possession of a controlled substance, tampering with physical evidence and possession of drug paraphernalia. The jury recommended ten years of incarceration for the manufacturing offense, one year for possession, one year for tampering, and twelve months on the drug paraphernalia charge, to run concurrently for a total of ten years' imprisonment. These were the minimum sentences the jury could recommend on the felony charges.
The trial court dismissed the possession of drug paraphernalia charge based on a defect in the completion of the paraphernalia instruction. The trial court sentenced Roark in accordance with these recommendations on the remaining charges to a total of ten years of incarceration.
Roark argues that the trial court abused its discretion in excluding Alvin's plea hearing testimony where Roark subpoenaed Alvin and he failed to appear at the trial. Roark preserved this evidence by avowal by submitting into evidence the certified video record of Alvin's plea hearing.
During Alvin's plea hearing, when the judge asked Alvin if he was manufacturing methamphetamine on the day in question, he responded: "Yes . . . . It was at the residence out on Route 6. . . . I was acting alone, and I had a methamphetamine bottle, and it was an active lab." When questioned about whether he was indeed manufacturing all by himself without help, Alvin again acknowledged that he acted alone without help. Alvin stated that while the manufacturing occurred at his wife's residence, "she didn't know that it was there."
The judge then stated that Tonia had testified under oath a few minutes earlier that she did know. Alvin seemed surprised and interjected, "She did know?" and then added, "Oh wow! I guess she did know then," but then added, "I mean I acted alone in that situation with the stuff." Regarding the tampering charge, Alvin acknowledged that he stuffed the lab in the air vent as the police were coming through the trailer.
When the prosecutor was asked whether he was satisfied with the factual basis for the plea, the prosecutor stated he contested whether Alvin acted alone, but was satisfied with the factual basis. A brief discussion ensued about the fact that Alvin was not required to testify at any co-defendants' trials, but that he could be subpoenaed.
Roark argues that Alvin's plea testimony should have been admitted as he was an unavailable witness under KRE 804(a)(5) and his testimony should have been admitted under KRE 804(b)(1) as former testimony; under KRE 804(b)(3) as a statement against interest; or pursuant to KRE 803(6) as a record of regularly conducted activity or KRE 803(8) as a public record because defense counsel had a certified copy of Alvin's plea hearing.
We review the trial court's exclusion of purported hearsay evidence for abuse of discretion. Mason v. Commonwealth, 559 S.W.3d 337, 342 (Ky. 2018). However, before we address the specific requirements of admitting or excluding Alvin's plea hearing testimony, we review Roark's due process rights as they inform our interpretation of the hearsay rules. The Due Process Clause is implicated because Alvin's statement constituted critical exculpatory evidence that was necessary for Roark's defense. The evidence of Roark's guilt was not overwhelming. Here, other than his mere presence and Tonia's testimony, nothing tied Roark to the manufacturing charges. As the officer admitted at trial, all the defendants were arrested and charged because no one admitted to being responsible at the scene.
Defendants have a due process right to present a defense. Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967). As explained in Dickerson v. Commonwealth, 174 S.W.3d 451, 471 (Ky. 2005):
The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations. This right, often termed the "right to present a defense," is firmly ingrained in Kentucky jurisprudence, and has been recognized repeatedly by the United States Supreme Court. An exclusion of evidence will almost invariably be declared unconstitutional when it significantly undermines fundamental elements of the defendant's defense.
Beaty v. Commonwealth, 125 S.W.3d 196, 206-07 (Ky. 2003) [overruled on other grounds by Gray v. Commonwealth, 480 S.W.3d 253 (Ky. 2016)] (internal citations and quotations omitted). "It is crucial to a defendant's fundamental right to due process that he be
allowed to develop and present any exculpatory evidence in his own defense, and we reject any alternative that would imperil that right." McGregor v. Hines, 995 S.W.2d 384, 388 (Ky. 1999).
The exclusion of hearsay evidence that has the indicia of trustworthiness and is critical to a defendant's defense can deprive a defendant of due process and, thus, a fair trial. Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973). "[W]here constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice." Id. Accordingly, in Dickerson, 174 S.W.3d at 471, the exclusion of testimony by an unavailable witness who would support the appellant's defense was in error where it "was the only evidence other than Appellant's own testimony that proved his defense."
Roark's strongest argument that Alvin's claim of sole responsibility for manufacturing methamphetamine should have been admitted into evidence is that Alvin was unavailable as a witness and his former testimony qualified for a hearsay exception. To use hearsay evidence on the basis that a witness is unavailable, the proponent must first establish unavailability pursuant to KRE 804(a) and then establish that there is a valid hearsay exception pursuant to KRE 804(b).
KRE 804(a)(5) provides that a declarant is unavailable as witness if he "[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." Reasonable means are not satisfied where the defendant made no effort to show that he attempted to produce the witness. Justice v. Commonwealth, 987 S.W.2d 306, 313 (Ky. 1998).
We agree with the Commonwealth that Roark cannot establish that Alvin was unavailable due to privilege. See Marshall v. Commonwealth, 60 S.W.3d 513, 519 (Ky. 2001) ("Before a declarant may be excused as unavailable based on a claim of privilege, the declarant must appear at trial, assert the privilege, and have that assertion approved by the trial judge."). However, Roark does not argue on appeal that Alvin's unavailability was due to privilege and, thus, this ground does not require any further discussion.
While the rules of evidence regarding unavailable witnesses apply to both parties, the standards for establishing unavailability are heightened for the Commonwealth based on the Confrontation Clause. Lovett v. Commonwealth, 103 S.W.3d 72, 83 (Ky. 2003); Marshall, 60 S.W.3d at 519. However, the Commonwealth's heightened burden, as applied, has not been proven to be all that onerous as out-of-court testimony has been admitted even without an effort to subpoena the witness or submit proof of true unavailability based on bare assurances from the Commonwealth that a witness is unavailable. See Lovett, 103 S.W.3d at 83-84; St. Clair v. Commonwealth, 140 S.W.3d 510, 539-40 (Ky. 2004).
The trial court erred by determining that Roark could not establish Alvin was unavailable without establishing that there was a court order compelling Alvin to be at court as a witness. KRE 804(a)(5) contains no such requirement. The trial court also erred by determining there was no evidence that a subpoena was served upon Alvin. While there may not have been written proof in the court file, that is not the required standard. The defense attorney represented several times that he had subpoenaed Alvin and did not understand why he was not present in court unless he wished to assert a privilege. This was proof that Roark was "unable to procure the declarant's attendance by process[.]" When Roark's due process rights are considered in interpreting the hearsay rule on unavailability, it becomes evident that Roark did enough to establish Alvin's unavailability.
Because the trial court erred in ruling that Alvin was not unavailable, the next step is to determine whether his plea hearing testimony qualified for a hearsay exception pursuant to KRE 804(b). Roark argued that Alvin's statements qualified for a hearsay exception as former testimony under KRE 804(b)(1) and as a statement against interest under KRE 804(b)(3). KRE 804(b)(1) provides a hearsay exception in relevant part as follows: "Testimony given as a witness at another hearing of . . . a different proceeding . . . if the party against whom the testimony is now offered . . . had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination."
The Commonwealth argues that it neither had the opportunity nor a similar motive to develop Alvin's testimony because its only responsibility was to establish that there was a factual basis for the plea. This is patently incorrect.
It has long been established that the prosecuting attorney should not simply seek to obtain convictions. "[T]he duty of a prosecuting attorney is not to persecute, but to prosecute[.]" Bailey v. Commonwealth, 193 Ky. 687, 237 S.W. 415, 417 (1922). "He represents the people of the state, and in a degree should look after the rights of a person accused of a crime by endeavoring to protect the innocent and seeing that truth and right shall prevail." Bennett v. Commonwealth, 234 Ky. 333, 28 S.W.2d 24, 26 (1930). It is the prosecutor's duty to "to see that the innocent [are acquitted] as much as it is to see that the guilty man is convicted." Dalton v. Commonwealth, 216 Ky. 317, 287 S.W. 898, 900 (1926).
In the situation where several defendants were charged with the exact same crimes because no one admitted responsibility, it was the prosecuting attorney's duty to try to determine who was guilty and who was innocent. Alvin's plea hearing was a perfect opportunity to do just that by questioning Alvin about other persons' involvement or lack of involvement, especially where he accepted responsibility. However, no such attempt was made even though the prosecuting attorney stated he disagreed that no one else was involved. A missed opportunity to cross-examine Alvin when there was ample motivation to do so should not be treated as the absence of an opportunity.
Although the trial court opined that Alvin's prior testimony was somewhat untrustworthy, this is not a valid reason to exclude it where it satisfied the necessary requirements to be admitted under KRE 804(a)(5) and (b)(1). Alvin's testimony had the indicia of trustworthiness because it was given during a court proceeding after he was sworn. While the trial court questioned Alvin's veracity because other co-defendants pled guilty to facilitation or possession which indicated that Alvin did not act alone, Tonia's plea to facilitation did not necessarily require Alvin's knowledge and Wilder-Smith's plea to possession of a separate quantity of methamphetamine had nothing to do with acting to aid manufacturing of methamphetamine. Additionally, the prosecuting attorney had an opportunity to explore Alvin's veracity at the plea hearing through cross-examination and failed to do so.
The issue of trustworthiness would only be directly at issue if we were instead determining the admissibility of Alvin's statements as statements against penal interest pursuant to KRE 804(b)(3), which states in relevant part that "[a] statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement."
While "in exceptional circumstances, a witness's testimony may be so improbable and implausible that it must be disregarded as having absolutely no probative value as a matter of law[,] . . . such exceptional circumstances do not arise because a particular witness is so lacking in the objective indicators of trustworthiness as to remove from her testimony all vestiges of credibility[]" but instead "arise when the substance of the testimony, detached from the personal credibility of the witness who bears [it], is so laden with doubt and implausibility that it cannot rationally be regarded as a fact capable of supporting a verdict." Ross v. Commonwealth, 531 S.W.3d 471, 475 (Ky. 2017). "[I]t is the inherent lack of probative value in the testimony itself, not the witness's lack of credibility, that allows the court to disregard it." Id. Disregarding a witness's statement because of "apparent or perceived untrustworthiness borders very closely upon declaring [the witness] incompetent to testify in violation of KRE 601. It also improperly shifts the credibility determination from the jury to the judge." Id. at 477. Accordingly, unless a witness's statement is so "extraordinarily implausible or inherently impossible that it is manifestly without probative value or patently unworthy of belief[,]" it will remain the jury's responsibility to determine whether it is credible and the weight it should be given. Id.
In the case of Alvin's plea hearing statement, it would also have the absurd result of essentially declaring he was incompetent for purposes of Roark's trial when his competency was already established for purposes of his plea hearing testimony.
Alvin's statement was patently not extraordinarily implausible or inherently impossible and, therefore, should have been admitted. With a video of the plea hearing, the jury would be able to judge Alvin's veracity based on his demeanor for themselves and decide whether he was credible and the weight that should be assigned to his testimony.
The exclusion of Alvin's plea hearing testimony was harmful because it prevented Roark from proving his defense. The addition of Alvin's statements that he was solely responsible for the manufacturing of the methamphetamine and hid the one-step lab himself could have resulted in Roark's acquittal on the manufacturing and tampering charges. Additionally, this testimony was consistent with Roark's defense, which was that he was present because he was an addict who wanted access to the drugs Alvin had. Under these circumstances, the hearsay rules as interpreted in conformance with the Due Process Clause required that Roark be able to present this evidence where he made a good faith effort to obtain Alvin's attendance and the other requirements for admission were satisfied. Without Roark being able to present this evidence, we have no confidence in the outcome of this trial. Therefore, if the facts are the same upon retrial, Alvin shall be permitted to present video of Alvin's plea hearing to the jury. See Dickerson, 174 S.W.3d at 471. Because we determine Alvin's former testimony should have been admitted into evidence during Roark's trial pursuant to KRE 804(a)(5) and (b)(1), we do not need to decide whether Roark satisfied the other avenues to have this testimony admitted.
However, we naturally believe Roark should have done more to make sure that Alvin would attend the trial, including obtaining a court order for transportation. On remand, Roark should act in a more rigorous manner to ensure Alvin's attendance on retrial. As Alvin is incarcerated, if the appropriate procedure is followed, he should attend. Once present, Alvin will either testify or plead a privilege (in which case a court ruling would determine whether he must testify, or he is unavailable due to privilege).
We express doubt that the other grounds Roark relied upon would allow admission of Alvin's former testimony. See Williamson v. United States, 512 U.S. 594, 599-601, 114 S.Ct. 2431, 2434-35, 129 L.Ed.2d 476 (1994) and Osborne v. Commonwealth, 43 S.W.3d 234, 240-41 (Ky. 2001) (explaining the limitations of a statement against interest being admissible under the Federal Rules of Evidence 804(b)(3) and KRE 804(b)(3)); and Bray v. Commonwealth, 68 S.W.3d 375, 380 (Ky. 2002) and Prater v. Cabinet for Human Resources, Commonwealth of Kentucky, 954 S.W.2d 954, 958-59 (Ky. 1997) (explaining the limitations of a record of regularly conducted activity or public record being admissible under KRE 803(6) or KRE 803(8)).
Because we are reversing for a new trial, we need not address Roark's arguments that there were three errors regarding his jury instructions.
Accordingly, we reverse Roark's conviction and sentence, and remand for a new trial because the Knox Circuit Court erred by excluding the prior plea hearing testimony of co-defendant Alvin Couch in which he claimed he was solely responsible for the manufacturing of the methamphetamine and concealed the evidence himself.
ALL CONCUR. BRIEFS FOR APPELLANT: Shannon Dupree
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Joseph A. Beckett
Assistant Attorney General
Frankfort, Kentucky