St. Clair v. Commonwealth

COOPER, Justice,

Concurring in Part and Dissenting in Part.

I concur in the majority opinion’s affir-mance of the jury’s verdict of guilt in this case (though not with its analysis of the evidence relating to the Van Zandt deposition) and in its reversal for a new penalty phase trial. However, I dissent from the majority’s conclusion that Appellant is eligible for the death penalty in this case.

I. VAN ZANDT DEPOSITION.

At the time of trial, Bylynn Van Zandt, Appellant’s former wife, lived in Durant, Oklahoma. Less than two weeks before trial, the Commonwealth petitioned the trial court for a certificate to obtain her attendance as a witness at trial. KRS 421.250. Five days before trial, the prosecutor informed the court and defense counsel by telephone that Van Zandt’s attorney had informed him that due to complications related to her pregnancy, she could not travel to Kentucky. The prosecutor moved for permission to take her testimony by deposition in Oklahoma. Appellant objected on 'grounds that the prosecutor had provided no documentation that Van Zandt was unable to travel for medical reasons. The issue was argued before the court at an oral hearing on August 17, 1998. The transcript of that hearing states, inter alia, as follows:

Defense: [W] are faced with the record here where the Commonwealth has introduced no evidence that Ms. Van Zandt is in fact unavailable beyond their hearsay say-so and — okay, they’re now handing me ...

Pros.: I don’t mean to interrupt, your Honor. Here is what happened. As I told the Court on the telephone we literally learned it within minutes — well within an hour of me calling the Court and [defense counsel]. No we didn’t have anything other than our word but as officers of the court I would have hoped that would have been sufficient.

We have asked the doctor who was treating Ms. Van Zandt to — we con *573 tacted her attorney who notified us of this situation. The doctor has faxed us this morning a letter showing that she’s not able — medically able to travel. And I would have certainly given you this had I had it.

This morning, once I received a motion of [defense counsel], this morning we have been in contact with Ms. Van Zandt’s attorney and we hope to supplement with an affidavit at some point during the trial — his affidavit. Which is substantially going to say what the doctor’s letter or statement has said. And if the Court wishes, and if [defense counsel] wishes, we will have that letter reduced to affidavit form and have that forwarded by the doctor.

(Emphasis added.) A lengthy debate ensued as to whether the Commonwealth should furnish Appellant with a summary of Van Zandt’s expected testimony and whether, for security reasons, it was feasible to have Appellant view the deposition by two-way video transmission instead of transporting him to Oklahoma to attend the deposition in person. The trial judge ultimately allowed Van Zandt’s testimony to be taken by deposition. While he denied the motion for a summary of her expected testimony, he required that Appellant be transported to Oklahoma to personally attend the deposition. The deposition was taken in Durant, Oklahoma, on August 23, 1998, in the presence of Appellant and counsel for both parties. At the conclusion of the deposition for the Commonwealth, Appellant separately deposed Van Zandt for the purpose of eliciting mitigating evidence to be presented during the penalty phase of the trial.

Although the faxed statement from Van Zandt’s treating physician to the prosecutor is absent from the record, it is obvious from the transcript that the prosecutor handed copies of the statement to both defense counsel and the trial judge when he interrupted Appellant’s argument at the August 17,1998, hearing. Appellant never again mentioned the unavailability issue (possibly because of his own desire to obtain Van Zandt’s deposition for mitigating evidence). Prior to the playing of her testimony at trial, Appellant moved to strike her deposition, but only because she had refused on cross-examination to identify another co-conspirator who aided her efforts to hinder Appellant’s prosecution.

The majority opinion correctly states that a witness for the Commonwealth in a criminal case cannot be deemed unavailable for purposes of KRE 804 unless the proponent has shown a good-faith effort to obtain the witness’s presence at trial. Lovett v. Commonwealth, Ky., 103 S.W.3d 72, 82-84 (2003). Cf. Barber v. Page, 390 U.S. 719, 724-25 , 88 S.Ct. 1318, 1321-22 , 20 L.Ed.2d 255 (1968) (witness not unavailable for purposes of Confrontation Clause unless state made a good faith effort to procure her attendance). The burden of proof in this circumstance is on the Commonwealth. Ohio v. Roberts, 448 U.S. 56, 74-75 , 100 S.Ct. 2531, 2543 , 65 L.Ed.2d 597 (1980); Justice v. Commonwealth, Ky., 987 S.W.2d 306, 313 (1998) (burden rests on offering party). Here, the Commonwealth made a good faith effort to obtain Van Zandt’s presence by utilizing the procedures in KRS 421.250. The real question is not whether the Commonwealth made a good faith effort to obtain Van Zandt’s presence but whether the proof was sufficient to support a finding that she was unavailable.

“ ‘Unavailability’ for purposes of KRE 804 is a preliminary issue for the trial judge under KRE 104(a).” Robert G. Lawson, The Kentucky Evidence Law Handbook § 845[7], at 644 (4th ed.2003). In considering a preliminary question con- *574 eerning the admissibility of hearsay evidence, e.g., whether a witness is unavailable, the trial judge “is not bound by the rules of evidence except those with respect to privileges.” KRE 104(a); Turner v. Commonwealth, Ky., 5 S.W.3d 119, 123 (1999). Thus, there was no need for Van Zandt’s doctor to render his opinion in court or even by affidavit. In fact, the trial judge could simply have accepted the prosecutor’s hearsay statement that Van Zandt was unavailable because of complications with her pregnancy. In United States v. McGuire, 307 F.3d 1192 (9th Cir.2002), it was held that the district court did not abuse its discretion in finding that a witness who was seven months pregnant was unavailable based on her doctor’s written but unsworn statement that her advanced pregnancy rendered her unable to undergo the. stresses of testimony. Id. at 1205 . See also State v. Steward, 219 Kan. 256 , 547 P.2d 773 (1976), which held that a trial court did not abuse its discretion in finding that a witness was unavailable where the prosecutor and an investigator both testified that the witness’s treating physician had advised them that the witness was in the late stages of pregnancy and could not travel from Louisiana to Kansas for trial. Id. at 780-83.

Similarly, in Brooks v. Commonwealth, Ky., 114 S.W.3d 818 (2003), we held that the trial court did not abuse its discretion in relying (1) on the prosecutor’s oral and written representations that prison officials where the witness was incarcerated informed him that the witness was too ill to be transported to trial, and (2) the trial court’s own confirmation of that information by a telephone conversation with prison officials. Id. at 821-22 . In Lovett, supra, we upheld a trial judge’s decision to permit the deposition of a critical prosecution witness based on the prosecutor’s mere proffer that the witness was in an out-of-state “Teen Challenge” drug-abuse program in South Dakota and could not obtain a pass to return to Kentucky before trial. Id. at 83 . (The primary issue in that case was whether the Commonwealth had made a good faith effort to obtain the witness’s presence for trial.) I would conclude that the hearsay evidence offered by the prosecutor in this case was sufficient to support the trial court’s finding that Van Zandt was unavailable “because of ... existing physical ... infirmity.” KRE 804(a)(4).

II. AGGRAVATING CIRCUMSTANCE.

I also agree with the majority opinion that Thompson v. Commonwealth, Ky., 862 S.W.2d 871 (1993), superseded on other grounds by RCr 9.38, was wrongly decided and should be overruled. However, the Due Process Clauses of -the Fifth and Fourteenth Amendments preclude us from retroactively applying our decision to overrule Thompson to Appellant’s case. In 1798, the United States Supreme Court identified four types of prohibited ex post facto laws:

1st. Every law that makes an action, done before passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different testimony than the law required at the time of the commission of the offence, in order to convict the offender.

Calder v. Bull, 3 U.S. (3 Dall.) 386 , 390, 1 L.Ed. 648 (1798) (emphasis added). These four categories are still recognized today. Rogers v. Tennessee, 532 U.S. 451, 456 , 121 S.Ct. 1693, 1697 , 149 L.Ed.2d 697 (2001).

*575 In 1964, the United States Supreme Court held that a judicial decision that has the same effect as retroactive legislation violates the “fair warning” requirement of the Due Process Clause.

When a state court overrules a consistent line of procedural decisions with the retroactive effect of denying a litigant a hearing in a pending case, it thereby deprives him of due process of law “in its primary sense of an opportunity to be heard and to defend (his) substantive right.” When a similarly unforeseeable state-court construction of a criminal statute is applied retroactively to subject a person to criminal liability for past conduct, the effect is to deprive him of due process of law in the sense of fair warning that his contemplated conduct constitutes a crime.

Bouie v. City of Columbia, 378 U.S. 347, 354-55 , 84 S.Ct. 1697, 1703 , 12 L.Ed.2d 894 (1964) (citation omitted). While Bouie involved a retroactive application of a judicial interpretation of a statute defining substantive criminal conduct, its holding has been consistently applied to judicial interpretations that increase punishment beyond what the defendant could have foreseen at the time of the offense. E.g., Davis v. Nebraska, 958 F.2d 831, 833 (8th Cir.1992); Helton v. Fauver, 930 F.2d 1040, 1044-45 (3d Cir.1991); Dale v. Haeberlin, 878 F.2d 930, 934 (6th Cir.1989); Devine v. N.M. Dep’t of Corr., 866 F.2d 339, 344-45 (10th Cir.1989); People v. King, 5 Cal.4th 59 , 19 Cal.Rptr.2d 233 , 851 P.2d 27, 40 (1993); State v. LeCompte, 538 A.2d 1102 (Del.1988) (per curiam); Stevens v. Warden, 114 Nev. 1217 , 969 P.2d 945, 948 (1998); Commonwealth v. Davis, 760 A.2d 406, 410 (Pa.Super.Ct.2000). In United States v. Newman, 203 F.3d 700 (9th Cir.2000), the United States Court of Appeals for the Ninth Circuit declined to extend Bouie to prohibit judicial retroactive increases in punishment, Id. at 702, but specifically exempted from its holding cases involving retroactive constructions of aggravating factors for imposition of the death penalty. Id. at 702 n. 2.

Thus, I conclude that the aggravating factor set forth in KRS 532.025(2)(a)(l) cannot be applied to Appellant because Thompson was the law of this Commonwealth at the time his offense was committed. Accordingly, I concur in the affir-mance of Appellant’s conviction but would reverse the sentence and remand for a new sentencing phase trial at which life imprisonment would be the maximum possible penalty.

LAMBERT, C.J., joins as to Part I only of this opinion, concurring in part and dissenting in part.