# Sanborn v. Commonwealth

> Kentucky Supreme Court · June 9, 1988 · 754 S.W.2d 534

URL: https://www.frixlaw.com/law-library/cases/9682077

## Case

- **Full name:** Parramore Lee SANBORN, Appellant, v. COMMONWEALTH of Kentucky, Appellee
- **Court:** Kentucky Supreme Court
- **Decided:** June 9, 1988
- **Citations:** 754 S.W.2d 534; 1988 Ky. LEXIS 35; 1988 WL 57757
- **Precedential status:** Published
- **Opinion:** Dissent by Wintersheimer
- **Judges:** Stephens, Lambert, Leibson, Gant, Vance, Wintersheimer, Stephenson
- **Cited by:** 160 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Hudson v. Commonwealth, 202 S.W.3d 17 (2006).
- Negative treatments: 1
- Distinguished by: 1
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9682077

## How later opinions describe it (automated extraction)

- holding that the witnesses whose taped statements were erased were “not essential to the Commonwealth’s case” and that a “missing evidence instruction was sufficient to offset the prosecutor’s misconduct.”
- noting that ''[t]he Brief for Appellant raise[d] sixty-one assignments of error and [wa]s 358 pages in length (the 'Appendix' and ‘Reply Brief not included”)

## Opinion text

WINTERSHEIMER, Justice,
dissenting.
I respectfully but strongly dissent from the majority opinion because the defendant received a fundamentally fair trial and the alleged errors complained of by the majority did not prejudice the verdict of the jury.
The majority decision is a tragic triumph of the so-called system over substance. Every defendant is entitled to a fair trial, *551 but not a textbook perfect one. See Brown v. United States, 411 U.S. 223 , 98 S.Ct. 1565 , 36 L.Ed.2d 208 (1973). A careful and exhaustive evaluation of the record indicates that the principles of law, order and justice which govern our society do not indicate that the so-called trial errors require a reversal of this conviction. The noble language of the majority must be tested in the light of the totality of the situation and the response of existing law in similar circumstances. Certainly, any accused must be afforded procedural protections, but in a context of reality and not second-hand fantasy. There is no basis for reversal here.
The majority maintains that there are three prosecutorial errors so substantial that each standing alone would require reversal. I disagree on the basis of an analysis of the majority rationale when measured against the facts.
1. The erasure of tape recorded interviews of three witnesses by the prosecutor did not deprive the defendant of due process. The defendant had sufficient opportunity to cross-examine the witnesses concerning the content of any pretrial statements they had given but did not do so. An aggrieved party must exhaust all reasonably available means to have the claimed error corrected before he can demand other relief. Cf. Harper v. Commonwealth, Ky., 694 S.W.2d 665 (1985); Romans v. Commonwealth, Ky., 547 S.W.2d 128 (1977). There is no contention that the evidence might have contained exculpatory material which would require a new trial.
In any event, any possible error is entirely harmless. The three witnesses were not material, and the other evidence of guilt was overwhelming. The three witnesses testified about the defendant’s drinking in the afternoon and gave cumulative testimony about the knife and his employment. The other witness was merely the defendant’s landlady and the third stated that he saw the defendant driving in the area on the night in question. I do not believe there would be any difference in the ultimate outcome if all the technical requirements now raised by the majority were adhered to. The failure to comply with RCr 7.26 does not require automatic and absolute reversal. McRay v. Commonwealth, Ky.App., 675 S.W.2d 397 (1984).
The real thrust of the majority is that there was prosecutorial misconduct of constitutional dimension under Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed. 215 (1963) and its progeny. I disagree because the majority now posits a shrewdly constructed rule on a very shaky syllogism of the Supreme Court case elevated by a Federal circuit court opinion and finally by a district court decision. I believe this is flawed logic. Brady, supra, held that the suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material. Here there is no showing that the suppressed tapes contain material evidence which would be favorable to the defendant as to guilt. In Hilliard v. Spalding, 719 F.2d 1443 (9th Cir.1983), a colorable claim was raised that the prosecution suppressed evidence relative to an earlier rape conviction. Although the tapes were erased, Sanborn could have cross-examined the witnesses on the content of their statements and determined if it would have aided in his defense. Sanborn had a sufficient opportunity to discover the content of the statements which is different from the destruction of a sperm sample in Hilliard, supra, which made it impossible for the defendant to discover its content.
United States v. Pollock, 417 F.Supp. 1332 (D.C.Mass.1976) involved the falsifying of a document as to the time of its preparation and the notes used to prepare the document were destroyed. If the testimony of the witnesses was not material to the defendant’s guilt or innocence, the holding in Pollock, supra, and Brady, supra, do not apply. State v. Maniccia, 355 N.W.2d 256, 259 (Iowa App.1984) likewise does not apply to this situation. Maniccia, supra, cites State v. Brown, 337 N.W.2d 507, 510 (Iowa 1983), stating that “Where evidence is material and there is the ‘unavoidable possibility that the [evidence] might have significantly favored the accused,’ denial of access to the evidence is a *552 denial of due process.” The Maniccia court went on to state that, “Evidence is material if it is offered to prove a proposition which is a matter in issue or is probative of the matter in issue.” In Maniccia the tape destroyed was a recording of a conversation which occurred during an alleged cocaine transaction. Such evidence was clearly material and might have been favorable to the defendant. There is no such showing of materiality or the possibility of favorableness to Sanborn in this case. Therefore the carefully woven web of the majority is easily pierced. The legal basis for finding that the erased tapes constitutes reversible error is totally without merit.
Ford v. Commonwealth, Ky., 665 S.W.2d 304 (1983), held that the unnecessary destruction of blood samples did not violate the due process requirements in the absence of a showing that such evidence had exculpatory value. The evidence must possess an exculpatory value that was apparent before it was destroyed and that it must be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. California v. Trombetta, 467 U.S. 479 , 104 S.Ct. 2528 , 81 L.Ed.2d 413 (1984).
2. The method of the trial court’s solution of the highlighting of the dispute over the written transcript does not merit reversing. The defendant has the opportunity to bring to the attention of the jury where he thought the transcript was in error. The trial court admonished the jury that the transcript was intended only as a listening aid and that the highlighted parts were areas where the transcript might be inaccurate and that any conflicts with the transcript should be resolved in favor of what they heard on the tape. The use of a transcript is within the sound discretion of the trial judge. In United States v. Robinson, 707 F.2d 872 (6th Cir.1983), the Court of Appeals endorsed an instruction as adequate which was very similar to the admonition in this case. The Robinson court did hold that if the tape is clear enough for a juror to detect that the tape is at variance with the transcript and where the tape is partially inaudible the likelihood is that the transcript becomes the evidence. However, in Robinson the tapes were relied on very heavily by the prosecution. Here the tapes lacked materiality at least in regard to the inaudible portions. The portions inaudible which were highlighted were not prejudicial and there was sufficient other evidence to support the conviction. Any error is harmless. If the prosecutor was in violation of any of his duties in anything he did in connection with this or any other representations, then Niemeyer v. Commonwealth, Ky., 533 S.W.2d 218 (1976), should cover this situation. In that case, the prosecutor was criticized but the conviction was upheld.
3. The majority labels the police testimony investigative hearsay and inveighs against it, expounding a legal philosophy which distracts attention from the actual situation. The police were reporting on what they had learned as a result of their investigation, not for the truth of the individual statements but for the fact of statistical information and the scope of the report. The police were available for cross-examination and the defendant was not prejudiced. The evidence of information acted upon by investigating officers was admissible. It was not admitted for the purpose of proving the truth of what was said but to describe the relevant details of what occurred. Preston v. Commonwealth, Ky., 406 S.W.2d 398 (1966).
Sanborn gave police a tape-recorded statement stating that he drove the getaway car for two other people who actually committed all the crimes. He described these anonymous individuals as brothers one of whom resided in Campbellsburg and the other in LaGrange. The Sheriff testified that he interviewed 40 to 50 people in an unsuccessful effort to locate the brothers. At a certain point, he stopped recording the names of his interviewees. Another officer also tried to locate the phantom brothers. He testified that none of the witnesses had seen Sanborn with another person that night. The defendant believes that defense counsel should have the opportunity to examine the 50 or so persons involved. If this request were granted, the *553 trial could have taken two years rather than just two months.
All of the officers were acting on information they had received. The state police officer had eliminated one suspect by his investigation. The Sheriff was following the defendant’s lead by canvassing the community. The detective summarized the testimony of witnesses who had already appeared at trial. None of the witnesses had been able to discover the existence of the two brothers.
There is no Kentucky case which gives us any assistance in deciding this type of issue. However, other jurisdictions have considered this matter and have determined that the testimony of police officers investigating the existence of “nonpersons” is admissible.
Thomas v. State, 54 Okla.Cr. 97, 98-99 , 14 P.2d 953, 954 (1932), is similar in that a deputy sheriff testified concerning his inquiry about the existence of a certain person. The Oklahoma court stated, “That there are certain matters which cannot always be proven by positive testimony.” It is not always possible to produce a witness who can testify that there is no such person.
The substance of the witness’ testimony is that in his opinion no such person exists; his opinion is based on the fact that he made inquiry. Testimony of the nonexistence of a claimed person is a matter of opinion which may be based on what is usually termed hearsay. Such testimony is not strictly speaking hearsay, but circumstantial evidence tending to prove that the claimed individual had no existence in fact.
State v. Kern, Iowa, 307 N.W.2d 22, 26 (1981), adopted the view of the Oklahoma court.
The Supreme Court of Delaware also followed the Thomas v. State analysis in Dutton v. State, 452 A.2d 127 (Del.Supr.1982), stating that the majority of cases dealing with negative results from inquiries appear to allow such evidence of inability of the inquirer to find after a diligent search and this is circumstantial evidence of the nonexistence of the fact in question.
McCormick on Evidence § 250 at 743-44 (3rd ed. E. Cleary 1984) states that, “It is true that the residents of whom inquiry was made could be brought in to testify as to their lack of knowledge but only at the price of substantial inconvenience and loss of time. However, application of the hearsay definition yields a satisfactory avoidance of the hearsay argument. The question asked would in essence have been, “Do you know, or have you ever heard of, a person named ... in this community?” with the answer “No.” “The assertion in the answer is that the declarant has not heard of the person, but the inference suggested from the aggregate of the answers is not that the declarant had not heard of such a person, but rather such a person does not exist.”
The majority opinion will add a greater unnecessary burden to the prosecutor’s already difficult task of proving a negative, the nonexistence of a person.
We must now turn to what the majority describes as cumulative errors which require reversal. This Court is required to review every claimed error in a death penalty case. That does not mean we are obliged to reverse a jury decision because of harmless error. The majority admits that the so-called cumulative errors are in many cases not preserved and in others not sufficiently serious to require reversal. In regard to the alleged prosecutorial misconduct, nearly half of the arguments presented were not properly preserved for appellate review. Nonetheless any such alleged errors should be reviewed. It should be recognized that in a two-month trial there can be mistakes and omissions by all parties. Consequently the rule that in a death penalty situation all errors should be reviewed has value.
The prosecutor’s statements regarding the fact that the victim was a living human being and had a family, although very dramatic in presentation, did not unduly inflame the jury. The majority opinion itself describes the evidence here as proving a particularly vicious and shocking premeditated murder. The prosecutor had no need *554 to inflame the jury. It was the fact of the murder that produced the verdict.
The prosecutor’s behavior towards defense counsel does not amount to prosecu-torial misconduct which would be prejudicial to the defendant. Most of the complained of comments were made outside the hearing of the jury. Actually, both counsel exchanged rather rough remarks about each other. None of these exchanges affected the outcome. Cf. United States v. Hasting, 461 U.S. 499 , 103 S.Ct. 1974 , 76 L.Ed.2d 96 (1983); United States v. Young, 470 U.S. 1 , 105 S.Ct. 1038 , 84 L.Ed.2d 1 (1985). Even taken at its best, the majority opinion refers to items discussed during closing argument at the penalty phase. Any error in that regard would relate only to that phase.
The trial judge read prospective jurors questions it intended to ask each individually. Neither the defendant nor the majority can cite authority that this procedure was error. The scope of jury inquiry is best governed by the wise and liberal discretion of the trial judge. The exercise of such discretion does not constitute reversible error unless clearly abused and when it appears that harmful prejudice has been caused thereby. Webb v. Commonwealth, Ky., 314 S.W.2d 543 (1958). That is not the case in this situation.
The conduct of the county sheriff was not reversible error. The question of whether to exclude a juror on the basis of close relationship is ordinarily within the sound discretion of the trial judge. Here there is no abuse of that discretion. The same is true in regard to the question of separation of witnesses and jurors. Turner v. Louisiana, 379 U.S. 466, 473 , 85 S.Ct. 546 , 13 L.Ed.2d 424 (1965), deals with a continuous and intimate association as distinguished from a brief encounter with jurors. Here the sheriff was at the motel where the jury was sequestered on the night prior to the giving of instructions on the guilt phase. He was also present during the penalty phase deliberations. He had no direct contact with any of the jurors. There is no basis for complaint. The refusal of the trial judge to excuse juror Snyder because of the death in his family, is not reversible error. The juror did not wish to be excused. This Court is not bound by the majority citation to a federal circuit court in Cherry v. Director, State Bd. of Corrections, 635 F.2d 414 (5th Cir.1981).
The refusal to permit cross-examination of a prosecution witness about his probation statute was not error. A misdemeanor conviction for wanton endangerment has never been admissible to impeach the credibility of a witness. Cotton v. Commonwealth, Ky., 454 S.W.2d 698 (1970). The reliance by the majority on Davis v. Alaska, 415 U.S. 308 , 94 S.Ct. 1105 , 39 L.Ed.2d 347 (1974), is strained. The witness in this case is not on probation for the same type offense, he was not a suspect, his testimony was not evasive and he was not a material witness.
The other assignments of alleged error are not significant enough even when viewed as cumulative to require reversal.
This Court has previously unanimously determined that the nonprejudicial error or harmless error rule applies in death penalty cases. Stanford v. Commonwealth, Ky., 734 S.W.2d 781 (1987). The jury could not ignore the abundant physical evidence relating to the defendant’s guilt. The error so earnestly urged by the majority is harmless beyond any reasonable doubt. Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967). Nothing could have changed the result in this case and nothing could have added much fuel to the fire. Timmons v. Commonwealth, Ky., 555 S.W.2d 234 (1977). The result in this case will not be any different upon an ultimate retrial. Considering the entire case there is no substantial possibility that the result would be any different and the alleged errors are clearly nonprejudicial. RCr 9.24; Abernathy v. Commonwealth, Ky., 439 S.W.2d 949 (1969).
I would affirm the conviction.
STEPHENSON, J., joins in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9682077. Public record. Not legal advice.