Petition for Writ of Certiorari — Victor Dewayne Taylor, Petitioner v. Scott Jordan, Warden

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

CENTRAL DIVISION

(at Lexington)

VICTOR DEWAYNE TAYLOR, )

)

Petitioner, ) Civil Action No. 5: 06-181-DCR

)

V. )

)

THOMAS SIMPSON, Warden, ) MEMORANDUM OPINION

. ) AND ORDER

Respondent. )

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In 1986, Victor Dewayne Taylor was convicted in Fayette Circuit Court of two

counts of murder, two counts of kidnaping, two counts of robbery, and one count of sodomy.

Ultimately, he received two death sentences. Taylor filed a petition for habeas corpus relief

in this Court, claiming that he is entitled to a new trial because his conviction resulted from

numerous violations of his constitutional rights. [Record No. 1] Finding no merit in his

arguments, the petition will be denied. |

mS I. :

The following summary of facts is derived largely from the Supreme Court of

Kentucky’s opinion in Taylor’s direct appeal, Taylor v. Commonwealth, 821 S.W.2d 72 (Ky.

1990) (Taylor D. In 1984, Taylor and co-defendant George Wade were charged in the

Jefferson Circuit Court with the murder, kidnapping, robbery, and sodomy of two Trinity

High School students, Richard Stephenson and Scott Nelson. They encountered the students

on the evening of September 29, 1984, after the students became lost on the way to a football

game. The prosecution presented a statement by Wade that he and Taylor kidnapped and

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@ robbed the two students. The boys had stopped at a fast food restaurant to ask for directions

when they were approached by Taylor and Wade. Other witnesses testified that Taylor had a

gun and forced the victims into their car. The four then left in the victims’ vehicle. In his

statement, Wade said that he and Taylor robbed the boys and that he had removed both boys’

trousers, bound their ankles, and gagged them in a Louisville alley. Wade indicated that

Taylor killed the boys because he was afraid they would identify them. Wade stated that he

waited on a nearby street while Taylor shot both boys in the head. Id. at 73-74.

Taylor and Wade were tried in Fayette County following a change of venue.'! Wade

was called as a prosecution witness at Taylor’s trial. However, Wade, citing his Fifth

Amendment right against self-incrimination, refused to testify because his conviction was

pending on a direct appeal at the time. Due to the pending appeal, the trial ‘court found that

@ Wade was unavailable and admitted Wade’s custodial statement made to the police that

implicated Taylor. Jd. at 74. On April 30, 1986, the jury convicted Taylor of two counts of

murder, kidnaping, and first-degree robbery, and one count of first-degree sodomy. On May

23, 1986, consistent with the jury’s recommendation, Taylor received a death sentence on

each of the kidnaping and murder charges regarding each victim. Accordingly, he originally

received a total of four death sentences.

1 Taylor and Wade were tried separately, with Wade being tried first. Wade was convicted of two

} counts of murder, kidnaping, and first-degree robbery, but was acquitted of sodomy. He received a

sentence of life imprisonment.

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The Kentucky Supreme Court affirmed Taylor’s conviction on direct appeal but

~ remanded for resentencing.” Jd. at 77. Thereafter, Taylor moved the trial court, pursuant to

RCr 11.42, to set aside the remaining judgments against him. The Bullitt Circuit Court,

Thomas L. Waller, Special Judge, denied that motion and the Kentucky Supreme Court

affirmed. Taylor v. Commonwealth, 63 S.W.3d 151 (Ky. 2001) (Taylor I). Taylor then

moved for a new trial under CR 60.02 and RCr 10.02. That motion was also denied and

affirmed on appeal. Taylor v. Commonwealth, 175 S.W.3d 68 (Ky. 2005) (Taylor III).

On June 2, 2006, Taylor filed the present action pursuant to 28 U.S.C. § 2254.

[Record No. 1] ‘As grounds for this petition, Taylor raises fifty-four claims which he

contends entitle him to habeas relief. In the interests of judicial economy, these are not

separately itemized, but are considered below in the same order as presented in the petition.

II.

Before a federal court may grant relief based upon a claim presented in a federal

habeas petition, the petitioner must have presented the claim to the state courts and exhausted

all remedies available in the state system. 28 U.S.C. § 2254(b)(1)(A). To “fairly present” a

claim to the state courts, the petitioner must have presented the state courts with both the

legal and the factual bases supporting the claim. Hanna v. Ishee, 694 F.3d 596, 609 (6th Cir.

2012) (citing Williams v. Taylor, 529 U.S. 420, 437 (2000)). Fair presentation of a federal

constitutional claim requires that the petitioner make the federal basis of the claim explicit to

the state court, either by citing federal law or decisions of federal courts. Duncan v. Henry,

2 The Kentucky Supreme Court concluded that while Taylor was death-penalty eligible, the Fifth

and Fourteenth Amendments of the United States Constitution prohibited imposing the death penalty for

kidnaping and murder of the same victim. For this reason, the Supreme Court vacated Taylor’s two death

sentences on the kidnaping charges and remanded for resentencing on those charges as Class A felonies.

Taylor’s two death sentences on the murder charges remained intact.

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513 U.S. 364, 365-66 (1995) (“If state courts are to be given the opportunity to correct

alleged violations of prisoners’ federal rights, they must surely be alerted to the fact that the

prisoners are asserting claims under the United States Constitution.”); Gatlin v. Madding,

189 F.3d 882, 888 (9th Cir. 1999). Ifa petitioner cites exclusively to state statutes and state

court decisions, he may fail to adequately indicate that he is asserting a violation of his

federal civil rights. Baldwin v. Reese, 541 U.S. 27, 33 (2004) (holding that a petitioner’s

failure to identify a federal claim or to cite case law which might alert the state court to the

federal nature of a claim is not fair presentation); Gray v. Netherland, 518 U.S. 152, 163

(1996) (“[I]t is not enough to make a general appeal to a constitutional guarantee as broad as

due process to present the ‘substance’ of such a claim to a state court”) If the petitioner has

not exhausted a claim, the federal court may nonetheless deny relief if the claim is without

merit. 28 U.S.C. § 2254(b)(2). |

Exhaustion is an affirmative defense and may be waived if the respondent fails to

assert it. Smith v. Moore, 415 F. App’x 624, 628 (6th Cir. 2011) (“A respondent failing to

raise his procedural default challenge waives it. ‘The state may waive a defense,’ including

procedural default, “by not asserting it.’”) (quoting Baze v. Parker, 371 F.3d 310, 320 (6th

Cir. 2004)). Additionally, if a petitioner’s claim has been exhausted in the state courts, he

bears the burden of demonstrating any right to federal habeas relief. Garner v. Mitchell. 557

F.3d 257, 261 (6th Cir. 2009) (citing Caver v. Straub, 349 F.3d 340, 351 (6th Cir. 2003).

When a petitioner presents a claim to state courts but those courts do not address the

merits of the claim in any manner, the federal habeas court evaluates the merits of the claim

de novo. Van v. Jones, 475 F.3d 292, 293 (6th Cir. 2007); Maples v. Stegall, 340 F.3d 433,

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436-37 (6th Cir. 2003) (citing Wiggins v. Smith, 539 U.S. 510, 531 (2003)). De novo review

is only appropriate if the petitioner affirmatively shows that the state court’s decision “did

not involve a determination of the merits of his claim,” such as where the state court denied

the claim on procedural grounds. Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 784-85

(2011) (emphasis added).

Where the state courts adjudicated the claim presented for federal collateral review,

habeas relief is only available if the state court’s decision was either “contrary to, or involved |

an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States[,]” 28 U.S.C. § 2254(d)(1), or “was based on an

unreasonable determination of the facts in light of the evidence presented in the State court

proceeding.” Jd. § 2254(d)(2). These two provisions collectively require a “highly

deferential standard for evaluating state-court rulings, which demands that state-court

decisions be given the benefit of the doubt.” Bell v. Cone, 543 U.S..447, 455 (2005)

(citations omitted) (internal quotation marks omitted). This deference is required even if the

state court provides no explanation for its decision. Harrington, 131 S. Ct. at 784.

To apply the deference required by § 2254(d)(1) to the state court’s legal conclusions,

“clearly established law” refers to both bright-line rules and legal principles set forth in the

decisions of the United States Supreme Court as of the time the state court rendered the

pertinent decision. Williams v. Taylor, 529 U.S. 362, 412 (2000) (O’Connor, J., opinion of

the Court for Part II); Taylor v. Withrow, 288 F.3d 846, 850 (6th Cir. 2002). Conversely,

“clearly established law” does not include dicta in Supreme Court decisions. Williams, 529

US. at 412. Nor does it include holdings from the federal courts of appeals. Jd. at 381-82.

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_ A state court’s decision is “contrary to” Supreme Court precedent if the state court

reaches the opposite legal conclusion than the Supreme Court has reached in a prior case or

arrives at a different outcome when the case presents a “set'of materially indistinguishable

facts.” Id. at 412-13. A state court’s decision constitutes an “unreasonable application” of

Supreme Court precedent only if the issue presented is so one-sided that “there is no

possibility fairminded jurists could disagree that the state court’s decision conflicts with

[Supreme Court] precedents.” Harrington, 131 S. Ct. at 786-87 (“[T]he state court’s ruling

on the claim being presented in federal court [must be] so lacking in justification that there

was an error well understood and comprehended in existing law beyond any possibility for

fairminded disagreement.”); Yarborough v. Alvarado, 541 U.S. 652, 664 (2004); Harris v.

Haeberlin, 526 F.3d 903, 909 (6th Cir. 2008). Deference is required “whether or not the .

state court reveals which of the elements, in a multipart claim it found insufficient, for §

2254(d) applies when a ‘claim,’ not a component of one, has been adjudicated.” Harrington,

131 S. Ct. at 784.

A state court determination premised on a factual determination is “based on an

unreasonable determination of the facts” under § 2254(d)(2) only when it is “objectively

unreasonable in light of the evidence presented in ‘the state court-proceeding[.]” Méiller-El v.

Cockrell, 537 U.S. 322, 340 (2003). The state court factual findings underpinning such

determinations are presumed correct absent clear and convincing evidence to the contrary.

28 U.S.C. § 2254(e)(1); Ayers v. Hudson, 623 F.3d 301, 308 (6th Cir. 2010).

If there were errors in the state court proceeding, the habeas court must determine if .

the errors were “structural defects” or “trial errors.” Structural defects, such as the denial of

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the right to counsel, defy analysis by “harmless error” standards and require reversal of the

state-court conviction. Brecht v. Abrahamson, 507 U.S. 619, 629 (1993). On the other hand,

constitutional trial errors must be assessed to determine if the error had a “substantial and

injurious effect” in determining the jury’s verdict or other case result. Jensen v.

Romanowski, 590 F.3d 373, 378 (6th Cir. 2009). If the error had little or no effect, then

habeas relief should be denied. However, if the habeas court finds itself in “virtual

equipoise” regarding whether the error had a substantial influence on the jury’s verdict, it

should grant the writ. Id. at 378-79 (citing O’Neal v. McAninch, 513 U.S. 432, 435 (1995)).

Finally, the Court notes that federal habeas relief is unavailable for errors in the application

of state law unless such errors deny the defendant the due process tight to a fundamentally

fair trial. Estelle v. McGuire, 502 U.S. 62, 68-70 (1991); Brooks v. Anderson, 292 F. App’x

431, 437 (6th Cir. 2008).

A. George Wade’s Out-of-Court, Custodial Statement Made to the Police

The police picked up Wade for questioning at approximately 3:35 p.m., on October 3,

1984, four days after the murders. He was taken to the Louisville Police Department,

advised of his rights, and informed that he was a suspect in the murders of Nelson and

Stephenson. Wade denied any involvement in these crimes. Roughly an hour later, Wade

executed a written waiver of his rights. Wade was then interviewed by two different police

detectives, first by Detective Mason for a couple of hours, and then by Detective Wilson,

who began his questioning about 6:30 p.m. Around 8:30 p.m., Wade agreed to take a

polygraph examination, which was completed about 11:30 p.m. The polygraph

administrator, Detective Duff, informed Detective Wilson that Wade had failed the

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examination. Detective Wilson resumed his interrogation of Wade at approximately 11:30

p.m. He told Wade that he had failed the polygraph. However, Wade continued to deny any

involvement in the murders.

Wade agreed to participate in a line-up, on October 4, 1984, at approximately 12:35

a.m. The line-up assembled by the police consisted of six participants, including Wade. All

of the participants put their hair in braids. The line-up began around 2:10 a.m., and was

completed at approximately 2:28 a.m. Cecil Pepper, who claimed to have seen the abduction.

in this case, identified Wade as one of the victims’ abductors from the fast food restaurant.

After Detective Duff advised Wade that he had been identified as one of the abductors, Wade

changed his story about having no involvement in these crimes. Duff then took another

statement from him. This tape-recorded statement commenced at approximately 2:40 a.m.

Wade completed his statement about 3:30 a.m., approximately twelve hours after he had

been picked-up for questioning. Wade’s statement was then transcribed, and he signed it. In

that statement, Wade implicated Taylor for the first time as a participant in the crimes and as

the person who shot Nelson and Stephenson.

The first three claims Taylor raises in this petition (Grounds 1, 2, and 3) concern the

pretrial statement of George Wade. Each claim is considered separately.

Ground 1 - The Admission of George Wade’s Statement at Trial Does Not

Support Habeas Relief.

Taylor contends that the trial court erred in allowing the Commonwealth to introduce

the edited, out-of-court, custodial statement of George Wade, his non-testifying codefendant, in violation of his rights under the Sixth and Fourteenth Amendments to the U.S.

Constitution to confront and cross-examine the evidence against him, resulting in the denial

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of a fair trial and a constitutionally infirm conviction. The Kentucky Supreme Court spoke

on this issue on three separate occasions: first, in Taylor’s direct appeal, Taylor I; next, in

Taylor’s appeal of the denial of his RCr 11.42 motion, Taylor IT; and finally, in Taylor’s

appeal of the denial of his CR 60.02 motion, Taylor III.

In Taylor’s direct appeal, the Kentucky Supreme Court held that the trial court did not

err by admitting Wade’s statement pursuant to FRE 804(b)(3), which was adopted by the |

Kentucky Supreme Court as Kentucky law in Maynard v. Commonwealth, 558 S.W.2d 628

(Ky. 1977), and Crawley v. Commonwealth, 568 S.W.2d 927 (Ky. 1978). See also Dodson

v. Commonwealth, 753 S.w.2d 548 (Ky. 1988). In reaching this conclusion, the Taylor I

majority engaged in the following analysis:

The trial judge in ruling on motions concerning Wade’s unavailability as a

' witness and whether his statement was against his own interest found that FRE

804(e) provides in pertinent part that a witness is unavailable if he is exempted

from testifying concerning the subject matter of his statement by a ruling of

the trial judge on the grounds of privilege. The trial judge in the presence of

Wade, but outside the presence of the jury, determined that Wade would rely

on the Fifth Amendment privilege and that the privilege was valid because his

conviction was pending on appeal. Accordingly, the trial judge found that

Wade was unavailable as a witness pursuant to FRE 804(a)(1) and Crawley,

supra.

The trial judge after hearing argument of counsel and considering the

provisions of the Federal Rule of Evidence 804(b)(3) as well as Kentucky

authority concluded that the out-of-court statement of Wade at the time of its

making was so far contrary to Wade’s penal interests and subjected him to

criminal liability that a reasonable man in such a position would not have

made the statement unless it was true. He further concluded that the

admissions against Taylor in Wade’s statement were essentially consistent

with his sworn in-court testimony as well as the testimony of three other

prosecution witnesses, and in the context of other admissions against Taylor,

exclusion would appear to deprive the finder of fact of relevant and reliable

evidence.

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}

Trustworthiness of a hearsay statement against penal interest is a prerequisite

to its admissibility. Crawley, supra, quoting from Chambers v. Mississippi,

410 US. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), set out the four factors

the Supreme Court deemed relevant to the trustworthiness of such statements:

(1) the time of the declaration and the party to whom made; (2) the existence

of corroborating evidence in the case; (3) the extent to which the declaration is

against the declarant’s penal interest and (4) the availability of a declarant as a

witness.

Wade’s statement was properly admitted into evidence. His statement was

made to the police prior to his arrest but after he had been picked up for

questioning. He was Mirandized three times, informed that he failed a

polygraph test and identified in a lineup prior-to his confession. His final

waiver of rights was tape-recorded, reduced to writing and signed in the

presence of two police officers. The mere fact that Wade had initially denied

any involvement in the crimes and confessed only after receiving notice that

he had been identified in the lineup does not render the confession involuntary.

Cf’ Commonwealth v. Vanover, Ky., 689 S.W.2d 11 (1985). There is no

suggestion that Wade was attempting to curry favor from the arresting officer.

He confessed without promises being made. While he was not under arrest,

Wade certainly knew he was a suspect. The statement Wade gave to the

police was corroborated in part by five different witnesses. Every material

detail of Wade’s confession was corroborated by independent testimony and

physical evidence.

Wade’s statement was against his own interest. His confession was not any

less a statement against his own penal interest simply because it also

implicated Taylor. Wade admitted that he actively participated in the

kidnapping and robbery. He said that he bound, gagged and robbed the

victims. He also described the events which culminated in the shootings. The

determination of whether an out of court statement is against the declarant’s

penal interest does not require an assessment of the declarant’s subjective

motivation. The determination should be made upon an examination of the

statement made and application of an objective measure of whether it is

against penal interest. By such an assessment, Wade’s confession was a

statement against his own interest for the purpose of FRE 804(b)(3).

Federal Rule of Evidence 804(a), in relevant part, provides that a declarant is

not available for the purposes of the hearsay rule if he:

1) is exempted by ruling of the court on the ground of privilege

from testifying concerning the subject matter of the declarant’s

statement; or ;

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2) persists in refusing to testify concerning the subject matter of

the declarant’s statement despite an order of the court to do so. .

Wade informed the Court that in spite of the prosecutor’s proffered immunity

he would invoke his fifth amendment privilege against self-incrimination if

called to testify. The trial judge correctly determined that Wade who had a

pending criminal appeal at the time was unavailable as a witness under FRE

804(a).

Courts are reluctant to admit hearsay evidence because of the [sic] its inherent

unreliability. Numerous exceptions have been carved out of the general

prohibition against admitting hearsay. FRE 804(b)(3), statements against

penal interest, allows hearsay statements to be admitted if they are against

declarant’s penal or proprietary interest, trustworthy, and the declarant is

unavailable. No lack of trustworthiness could be implied regarding the content

of Wade’s confession or the circumstances surrounding it. There was no |

factual basis for the presumptive suspicion that frequently relates to a

codefendant’s confession. Wade’s confession was corroborated in every

material detail by independent testimony and physical evidence. Wade was

unavailable, his statement was against his own interest, and from the physical

evidence, the testimony of witness and Wade’s confession, it was reliable and

trustworthy. The trial judge was correct in admitting Wade’s statement. As a

reviewing court, we find no reason to disturb the action taken. Reichle v.

‘Reichle, Ky., 719 S.W.2d 442 (1986).

- Taylor argues that the introduction of a nontestifying-codefendant’s confession

invariably results in a violation of Bruton v. United States, 391 U.S. 123, 88

S.Ct. 1620, 20 L.Ed.2d 476 (1968). He also contends that Rule 804(b)(3) is

unconstitutional. The trial judge correctly ruled that the edited confession was

admissible in Taylor’s separate trial. The confession was the last item of

evidence presented by the prosecution in the case in chief. It was edited to

delete all references to other crimes.

Bruton, supra, holds generally that a defendant’s Sixth Amendment right to

confrontation is violated when he is diréctly incriminated by the confession of

a nontestifying codefendant. The rationale for this general rule of

constitutional law is the same as that underlying the general prohibition

against hearsay evidence, that is the presumptive unreliability of an extrajudicial confession. Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775,

97 L.Ed.2d 144 (1987), a conspiracy case, discussed the relationship between

various Federal Rules of Evidence and the Confrontation Clause, and indicates

that out of court statements are only presumed unreliable and the presumption

may be rebutted by appropriate proof. It also recognizes the cumulative value

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of certain evidence. When taken together the two principles demonstrate that

what may be unreliable in isolation may be probative when corroborated by

other evidence. Bourjaily also indicated that the literal interpretation of the

confrontation clause was too extreme and that the societal interest of accurate

fact finding requires harmonization with the confrontation provision.

Accommodation of these competing interests has in general required the

prosecution to demonstrate both the unavailability of the witness and the

indicia of reliability surrounding the out of court statements.

A number of federal circuit courts have followed the Bourjaily philosophy.

See United States v. Robinson, 635 F.2d 363 (5th Cir. 1981); United States v.

Katsougrakis, 715 F.2d 769 (2nd Cir. 1983); United States v. Harrell, 788

F.2d 1524 (11th Cir. 1986); United States v. Kelley, 526 F.2d 615 (8th Cir.

1975).

A codefendant’s confession is not per se untrustworthy but is’ only

presumptively unreliable and the presumption may be rebutted. Dodson,

supra, held that this type of evidence can be admissible if its presumptive

unreliability is sufficiently rebutted by corroborating circumstances which

clearly indicate its trustworthiness.

"In view of the trial judge’s holding that the statement came in as a recognized -

exception to the hearsay rule, we find no conflict with the confrontation

clause. See Crawley, supra; Bourjaily, supra.

Taylor I, 821 8.W.2d at 74-76.

In 2001, in Taylor I, the Kentucky Supreme Court addressed Taylor’s request to

reconsider the admissibility of Wade’s confession based on the United States Supreme

Court’s decision in Lilly v. Virginia, 527 U.S. 116 (1999). Although the Taylor II Court

declined Taylor relief on this issue, it modified the rationale for its holding in Taylor I that

the admission of Wade’s statement did not violate Taylor’s constitutional rights. The Taylor

ZT Court held:

On direct appeal, both the majority and dissenting opinions addressed and

discussed Taylor’s Confrontation Clause argument. Taylor, 821 S.W.2d at

75-76, 80-82. Thus, the issue of whether Wade’s statement was admissible

under the Kentucky and U.S. Constitutions was decided against Taylor on

direct appeal. Therefore, given Roberts either/or two-prong approach to

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admissibility, Taylor should be read as holding that Wade’s confession was

admissible under the second prong of Roberts, rather than as a “firmly rooted”

exception to the hearsay rule. Consequently, even if Lilly was binding

precedent, Lilly would not a fortiori overrule Taylor.

Therefore, Taylor’s argument is reduced to a plea that we reexamine an issue

that was raised and decided against him on direct appeal. This is foreclosed by

both the above-discussed rule set forth in Thacker, and the law of the case

doctrine. Under the law of the case doctrine, “an opinion or decision of an

appellate court in the same cause is the law of the case for a subsequent trial or

appeal however erroneous the opinion or decision may have been.” Union

Light, Heat & Power Co. v. Blackwell’s Adm’r, Ky., 291 S.W.2d 539, 542

(1956). A rarely-employed exception to the law of the case doctrine exists

when it can be shown that the former decision was clearly and palpably

erroneous, but no such showing is made in this case. Lilly does not overrule or

render Taylor erroneous. Nor is it clearly apparent that Taylor reaches the

wrong result under the applicable case law.

63 S.W.3d at 167-68.

Subsequently, in 2005, the Kentucky Supreme Court affirmed the denial of Taylor’s .

CR 60.02 motion for a new trial. Taylor III, 175 S.W.3d at 77. In that decision, the 7 aylor

IIT Court, sua sponte, revisited the issue of the admissibility of Wade’s statement in view of

the United States Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004).

Crawford held that out-of-court testimonial statements are inadmissible as a violation of the

Confrontation Clause “unless [the witness] was unavailable to testify, and the defendant had

had a prior opportunity for cross-examination.” Jd. at 53-54. The Taylor III Court

acknowledged that Wade was unavailable under KRE 804(a)(1) and that Taylor did not have

the ability to cross-examine Wade’s statement to the police. Therefore, the Taylor III Court

concluded that if Crawford were applicable, Taylor’s constitutional right to confront

witnesses against him was violated. 175 S.W.3d at 71-75.

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However, the Taylor III Court further held that Taylor would only be entitled to a new

trial if he were prejudiced by the error. In other words, if the admission of the statement

amounted to harmless error beyond a reasonable doubt, then his conviction would not be

disturbed. Chapman v. California, 386 U.S. 18, 24 (1967). The Taylor II Court then

reviewed all of the other evidence presented against Taylor at the guilt phase of his trial,

)

including the testimony of Jeffrey Brown, Eugene Taylor, Beverly Shackelford, the

testimony of a hair analysis expert, the testimony of a firearm’s expert, the coroner’s

testimony, evidence found at the crime scene, and other evidence obtained from the homes of

Taylor’s mother, sister, and girlfriend. In the final analysis, the Taylor III Court concluded -

that the admission of Wade’s statement was harmless error.

From this evidence no reasonable jury could have acquitted Taylor of

murdering the two Trinity High School students even if Wade’s statement

were kept from its consideration. Wade’s initial statement incriminating

Taylor, though persuasive by itself, was little more than cumulative of other

evidence. This is especially true in light of the probability that the prosecution’

would offer this statement into evidence to rebut Wade’s recantation.

However, with or without the statement, the proof that Taylor kidnapped,

. sodomized, and murdered the two boys was overwhelming and no jury could

fail to find guilt beyond a reasonable doubt.

175 S.W.3d at 73-74.

| At the time of Taylor’s direct appeal, the test for the admissibility of a statement made

by a non-testifying co-defendant was contained in Ohio v. Roberts, 448 U.S. 56 (1980).

Pursuant to Roberts, |

The Confrontation Clause operates in two separate ways to restrict the range of

admissible hearsay. First, in conformance with the Framers’ preference for

face-to-face accusation, the Sixth Amendment establishes a rule of necessity.

In the usual case (including cases where prior cross-examination has

occurred), the prosecution must either produce, or demonstrate the

unavailability of, the declarant whose statement it wishes to use against the

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defendant. See Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d

293 (1972); Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255

(1968). See also Motes v. United States, 178 U.S. 458, 20 S.Ct. 993, 44 L.Ed.

1150 (1900); California v. Green, 399 U.S., at 161-162, 165, 167, n. 16, 90

S.Ct., at 1936-1937, 1938, 1939, n. 16.

The second aspect operates once a witness is shown to be unavailable.

Reflecting its underlying purpose to augment accuracy in the factfinding

process by ensuring the defendant an effective means to test adverse evidence,

the Clause countenances only hearsay marked with such trustworthiness that

“there is no material departure from the reason of the general rule.” Snyder v.

Massachusetts, 291 U.S., at 107, 54 S.Ct., at 333. The principle recently was

formulated in Mancusi v. Stubbs :

“The focus of the Court’s concern has been to insure that there

‘are indicia of reliability which have been widely viewed as

determinative of whether a statement may be placed before the

jury though there is no confrontation of the declarant,’ Dutton v.

Evans, supra, at 89, 91 S.Ct., at 220 and to ‘afford the trier of

fact a satisfactory basis for evaluating the truth of the prior

statement,’ California v. Green, supra, 399 U.S., at 161, 90

S.Ct., at 1936. It is clear from these statements, and from

numerous prior decisions of this Court, that even though the

witness be unavailable his prior testimony must bear some of

these ‘indicia of reliability.” 408 U.S., at 213, 92 S.Ct. at

2313.

The Court has applied this “indicia of reliability” requirement principally by

concluding that certain hearsay exceptions rest upon such solid foundations

that admission of virtually any evidence within them comports with the

“substance of the constitutional protection.” Mattox v. United States, 156

US., at 244, 15 S.Ct., at 340. This reflects the truism that “hearsay rules and

the Confrontation Clause are generally designed to protect similar values,”

California v. Green, 399 U.S., at 155, 90 S.Ct., at 1933, and “stem from the

same roots,” Dutton v. Evans, 400 U.S. 74, 86, 91 S.Ct. 210, 218, 27 L.Ed.2d

213 (1970). It also responds to the need for certainty in the workaday world of

conducting criminal trials.

In sum, when a hearsay declarant is not present for cross-examination at trial,

the Confrontation Clause normally requires a showing that he is unavailable.

Even then, his statement is admissible only if it bears adequate “indicia of

reliability.” Reliability can be inferred without more in a case where the

evidence falls within a firmly rooted hearsay exception. In other cases, the

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evidence must be excluded, at least absent a showing of particularized

guarantees of trustworthiness.

Roberts, 448 U.S. at 65-66 (footnotes omitted).

Thus, Roberts held that the Sixth Amendment requires that hearsay statements, to be

admissible, must have “indicia of reliability” — ie., either fall into a “firmly rooted

exception” or have “particularized guarantees of trustworthiness.” Jd. at 66. Further, in Lee

v. Illinois, 476 U.S. 530, 543 (1986), the Court held that inculpatory hearsay statements by

accomplices, such as George Wade's, are “presumptively unreliable,” but that the

presumption can be overcome by a sufficient showing of indicia of reliability.

On direct appeal, the Kentucky Supreme Court upheld the admission of Wade’s

statement under the common-law hearsay exception for statements against penal interest

pursuant to FRE 804(b)(3), which was adopted by that court in Crawley, 568 S.W.2d 927.

Taylor I, 821 S.W.2d at 74. The rationale for this holding was that the statement also

inculpated Wade as an accomplice. Therefore, it was a statement against Wade’s penal

interest. Id. The Kentucky Supreme Court analyzed the trustworthiness of Wade’s statement

by examining: (i) the time of the declaration and the party to whom made; (ii) the existence

of corroborating evidence in the case; (iii) the extent to which the declaration is against the

declarant’s penal interest; and (iv) the availability of the declarant as a witness. Id. (citing

Crawley, 568 S.W.2d at 931); Chambers v. Mississippi, 410 USS. 284 (1973). In Taylor J,

the Kentucky Supreme Court, in analyzing the trustworthiness of Wade’s statement,

memorialized the assurances of its reliability, as detailed above. 821 S.W.2d at 74-75.

At the time of Taylor’s direct appeal, the Kentucky Supreme Court’s holding and

rationale in Taylor I were legally sound. Subsequent case law has no effect on the

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correctness of the Taylor I decision, as it was based on Roberts, 448 U.S. 56, controlling

precedent from the United States Supreme Court at that time. Thus, Taylor’s claim of

constitutional error in this instance is without merit. Because Wade’s confession had the

requisite indicia of reliability and particularized guarantees of trustworthiness, pursuant to

Roberts, the Kentucky Supreme Court in Taylor J correctly analyzed this issue. That analysis

was consistent with federal law and U.S. Supreme Court precedent at the time it was decided.

The Taylor I court committed no error in its analysis.

However, before reviewing the other two decisions by the Supreme Court of

Kentucky (Taylor II and Taylor III) concerning the admission of George Wade’s custodial

statement, it is necessary to determine whether subsequent decisions from the United States

Supreme Court as to the issue of the admission of an inculpatory statement by a nontestifying co-defendant have any retroactive effect in Taylor’s case. In his petition, Taylor

cites to Lilly v. Virginia, 527 U.S. 116 (1999) and Crawford v. Washington, 541 U.S. 36

(2004), as applicable to his case. Lilly and Crawford were decided nine years and fourteen

years, respectively, after Taylor’s direct appeal had concluded. As noted above, in 2001, the

Kentucky Supreme Court, in Taylor II, modified the rationale for its holding in Taylor I that

the admission of Wade’s statement did not violate Taylor’s constitutional rights. 63 S.W.2d

at 166-68.

In the interim between Taylor II and Taylor III, the United States Supreme Court

decided Crawford, holding that out-of-court testimonial statements are inadmissible as a

violation of the Confrontation Clause “unless [the witness] was unavailable to testify, and the

defendant had had a prior opportunity for cross-examination.” Crawford, 541 U.S. at 54.

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The Taylor III Court acknowledged that Wade was unavailable under KRE 804(a)(1) and

that Taylor did not have the ability to cross-examine Wade’s statement to the police.

Therefore, the Taylor III Court concluded that if Crawford were applicable, Taylor’s

constitutional right to confront witnesses against him was violated. However, the Taylor III

Court did not end its analysis there. It also concluded that Taylor would only be entitled to a

new trial if he were prejudiced by the error. In other words, if the admission of the statement

amounted to harmless error beyond a reasonable doubt, then his conviction would not be

disturbed. Chapman, 386 USS. at 24.

Looking at this matter through the “harmless error’ lens, the Taylor III Court

reviewed all of the other evidence presented against Taylor during the guilt phase of his trial,

including the testimony of Brown, Eugene Taylor, Shackelford, the testimony of a hair

analysis expert, the testimony of a firearms expert, the coroner’s testimony, evidence found

at the crime scene, and other evidence obtained from the homes of Taylor’s mother, sister,

and girlfriend. In the final analysis, the Taylor IJ Court concluded that the admission of

.Wade’s statement was harmless error:

From this evidence no reasonable jury could have acquitted Taylor of

murdering the two Trinity High School students even if Wade’s statement

were kept from its consideration. Wade’s initial statement incriminating

Taylor, though persuasive by itself, was little more than cumulative of other

evidence. This is especially true in light of the probability that the prosecution

would offer this statement into evidence to rebut Wade’s recantation.

However, with or without the statement, the proof that Taylor kidnapped,

sodomized, and murdered the two boys was overwhelming and no jury could

fail to find guilt beyond a reasonable doubt. ;

175 S.W.3d at 73-74.

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@ Consistent with decisions in other federal circuits, the Sixth Circuit has held that

| Crawford cannot be applied retroactively in habeas cases due to: (i) the limiting language in

28 U.S.C. § 2254(d), and (ii) the non-retroactivity doctrine established in Teague v. Lane,

489 U.S. 288, 305-11 (1989). See Dorchy v. Jones, 398 F.3d 783, 788 (6th Cir. 2005); see

also Lave v. Dretke, 444 F.3d 333 (Sth Cir. 2005); Brown v. Uphoff, 381 F.3d 1219, 1223-27

(10th Cir. 2004); Owens v. Frank, 394 F.3d 490, 501-503, n.8 (7th Cir. 2005) (holding that

Roberts set the standard for evaluating alleged Confrontation Clause violations in a case

which became final on direct appeal prior to Crawford); Mungo v. Duncan, 393 F.3d 327,

332-36 (2nd Cir. 2004); Evans v. Luebbers, 371 F.3d 438 (8th Cir. 2004).

As seen in Teague, to be entitled to an exemption from the non-retroactivity doctrine,

a habeas petitioner must demonstrate that the interpretation of federal constitutional law on

@ which he relies is the only reasonable interpretation of federal law at the time his conviction

became final on direct appeal and that no other interpretation was reasonable. Lambrix v.

Singletary, 520 U.S. 518, 538 (1997). A showing that a later ruling was the most reasonable

interpretation of existing precedent will not suffice. Jd. Under Teague, even the opinions of

lower courts must be considered in determining whether the state court’s ruling was a

reasonable interpretation of then existing Supreme Court precedent. Caspari v. Bohlen, 510

U.S. 383, 390-96 (1994).

The 1980 decision in Roberts established the standard for evaluating alleged

Confrontation Clause violations. In fact, Roberts remained controlling precedent when -

Taylor’s case became final on direct appeal in 1990. Subsequently, the law regarding

Confrontation Clause violations began to evolve, as seen by the plurality opinion in Lilly in

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1999. By the time Crawford was decided in 2004, the evolution had progressed further. The

Crawford Court concluded that, “[w]here testimonial evidence is at issue, however, the Sixth

Amendment demands what the common law required: unavailability and a prior opportunity

for cross-examination.” 541 U.S. at 68. Thus, as to testimonial evidence, Crawford

essentially rendered Roberts and numerous lower courts’ opinions obsolete because “the

Roberts test is inherently, and therefore permanently, unpredictable.” Id., n.10 (emphasis

original); Cf. Earnest v. Dorsey, 87 F.3d 1123, 1130-34 (10th Cir. 1996). |

However, in 1990, the Kentucky Supreme Court’s reasoning in the Taylor I decision

was based on the long-standing tule established in Roberts in 1980. It was the only

‘reasonable interpretation of federal law existing at the time and no other interpretation was

reasonable. Lambrix, 520 US. at.538. It was only in the 1990s, post-Taylor I, that the law

concerning the admissibility of this Confrontation Clause evolved to the point of casting a

shadow on the viability of Roberts. However, by no means was there a clear consensus on

the course that this evolution would take. The plurality opinion in Lilly in 1999 illustrates

the lack of compelling clarity on the Confrontation Clause issue at that time (as it relates to

Taylor’s direct appeal in 1990). See also O'Dell v. Netherland, 521 U.S. 151, 159-60 (1997)

(pointing to the Court’s lack of consensus when the issue was decided after O’Dell’s direct

appeal had been decided). It was not until the Crawford decision in 2004 that the law

regarding this issue had evolved such that Roberts was rendered obsolete.

Nevertheless, Crawford does not qualify for an exemption from the Teague nonretroactivity doctrine for “watershed rules of criminal procedure implicating the fundamental

fairness and accuracy of the criminal proceeding.” Tyler v. Cain, 533 US. 656, 665 (2001).

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The second Teague exception is available only if the new rule “alter[s] our understanding of

the bedrock procedural elements essential to the fairness of a proceeding.” Jd. at 666 n.7

(internal quotations and citations omitted). Tyler also points out that a new ruling

establishing that an error has occurred and that such error is structural is insufficient by itself

to require that the new ruling be applied retroactively on habeas review. Id. at 666-67.

Further, the new rule in Crawford does not establish that trials conducted under the

Roberts standard requiring indicia of reliability so seriously diminishes “accuracy as to

produce an impermissibly large risk of injustice.” Schriro v. Summerlin, 542 U.S. 348, 356

(2004) (internal quotations and citations omitted). “Because we operate from the premise

that such procedures [qualifying under this exception to non-retroactivity] would be so

central to an accurate determination of innocence or guilt, we believe it unlikely that many

such components of basic due process have yet to emerge.” Teague, 489 U.S. at 313; see

Beard v. Banks, 542 U.S. 406, 415-20 (2004) (noting the Court at that time had yet to find

any new rule that qualifies under this exception); Graham v. Collins, 506 U.S. 461, 478

(1993).

However, even assuming arguendo that Crawford qualifies as an exception to the

Teague non-retroactivity doctrine and that the admission of Wade’s statement was a violation

of the Confrontation Clause, the error was harmless error under the applicable standard for

habeas review contained in Brecht v. Abrahmson, 507 U.S. 619, 636 (1993), which is

whether the error has substantial and injurious effect on the outcome. See Stapleton v. Wolfe,

288 F.3d 863, 867-68 (6th Cir. 2002) (applying Brecht but also citing factors set forth in

Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986), which include: (i) the importance of the

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witness’s testimony in the prosecution’s case; (ii) whether the testimony was cumulative; (iii)

the presence or absence of evidence corroborating or contradicting the testimony of the

witness on material points; (iv) the extent of cross-examination otherwise permitted; and (v)

the overall strength of the prosecution’s case); Gilliam v. Mitchell, 179 F.3d 990, 994-95

(6th Cir. 1999); Hill v. Brigano, 199 F.3d 833, 847 (6th Cir. 1999).

With no consideration being given to Wade’s statement, other evidence in the case

was overwhelming regarding Taylor’s guilt. For instance, Taylor acknowledged the killings _

to at least three other people — Beverly Shackelford, Eugene Taylor, and Jeffrey Brown.

Taylor acknowledged to Brown that he killed the boys because Wade mentioned his name

while he was sodomizing one of the victims. An autopsy found sperm in the anus of one of

the victims. Eugene Taylor witnessed Taylor admit to the killings, exchange firearms with

his sister, and then divide the money stolen from the victims with Wade. |

Additionally, two other individuals, Dino Pace and Cecil Pepper, witnessed the

gunpoint abduction and identified Taylor and Wade as the abductors. Further, Pace and

Pepper exited the parking lot of the fast food restaurant in their vehicle about the same time

as Taylor, Wade, and the victims exited the parking lot in the victims’ car. Pace and Pepper

followed them for a time while Taylor and Wade were riding in the back seat of the victims’

car. Pepper had ample opportunity to observe Taylor while he and Taylor were at the

counter at the fast-food restaurant, and Pepper observed Taylor holding a gun as he entered

the back seat of the victims’ car.

Eugene Taylor also saw Taylor and Wade riding in the car with the victims prior to

the murders. Live .357 magnum rounds were found in Taylor’s home that matched the.

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bullets at the crime scene (a firearms expert indicated that both victims were killed with the

same gun). Numerous items of stolen property, easily identified as belonging to the victims,

were in Taylor’s possession or found in the homes of Taylor’s mother and sister. Taylor

gave several of the victims’ items to others (friends, family, and his girlfriend) or offered the

items to others for sale (e.g., Taylor offered to sell a Trinity High School class ring and a

school jacket to Beverly Shackelford). Further, a witness to the abduction stated that Taylor

was wearing a beige shirt. A beige shirt was found near the crime scene that contained hairs

consistent with Taylor’s head and pubic hair.

In summary, there was more than ample evidence of Taylor’s guilt without giving any

consideration to Wade’s statement.? The evidence against Taylor sans Wade’s statement

was overwhelming, as the Taylor IIT Court observed: “The other evidence against Taylor is

mountainous.” 175 S.W.3d at 72. Wade’s statement was cumulative and provided details

that allowed the evidence to tell a more complete story (such as giving reasons for certain

actions - ¢.g., prior to the killings, Wade threw Nelson’s car keys on top of a building

because if the victims got loose, he did not want the victims to be able to follow them in their

car). Nothing contained in Wade’s statement provides additional evidence to an element of

the crimes that was not already contained in other evidence against Taylor. Thus, Wade’s

statement was corroborating, but it was not essential to Taylor’s conviction. Therefore, if its

admission was erroneous, it was harmless error under the Brecht standard.

3 As noted by the Kentucky Supreme Court in Taylor III, if Taylor were retried, Wade could no

longer assert a Fifth Amendment privilege and would be required to testify. If Wade were to testify

contrary to his earlier statement at issue, portions of this earlier statement would likely be used as prior

inconsistent statement. Taylor III, 175 S.W.3d at 72 (citing KRE 801A(a)(1) for the admissibility of

Wade’s pretrial statement if used as a prior inconsistent statement).

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@ Given the legal landscape surrounding the Confrontation Clause ‘at the time of

Taylor’s direct appeal, specifically, the well-established Roberts decision, it is clear that the

Kentucky Supreme Court’s decision in Taylor I was the only reasonable interpretation of

federal law existing at the time and that no other interpretation was reasonable.

Consequently, the Taylor I decision on the admission of George Wade’s custodial statement

was neither contrary to clearly established federal law nor an unreasonable application of

United States Supreme Court precedent. Taylor’s argument on this issue is without merit.

Ground 2 — Taylor’s Trial Attorneys Were Not Ineffective Because Wade’s

Statement Was Admitted As Evidence at Trial.

Taylor claims that the admission of Wade’s statement violated his Sixth Amendment

right to the effective assistance of counsel. To be clear, Taylor is not claiming that his

counsel was ineffective or that his counsel’s performance was deficient but, because his

counsel had no opportunity to cross-examine Wade as to this statement, that circumstance

operated to deny him effective assistance of counsel. Taylor contends that the resolution of

this issue in the state courts in Kentucky was based on an unreasonable determination of the

facts in light of the evidence, and that it was contrary to, or involved an unreasonable

application of, clearly established federal law as determined by the United States Supreme

Court.

Due to the nature of the claim, Taylor did not raise this argument on direct appeal.

However, Taylor raised the issue in his collateral proceeding in the trial court, pursuant to

RCr 11.42, but the trial court rejected this claim. Taylor then raised it in appealing the denial

of his RCr 11.42 motion. The Kentucky Supreme Court in Taylor I affirmed the denial of

© Taylor’s RCr 11.42 motion, and acknowledged this claim of ineffective assistance of counsel

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by stating, “[i]n conclusion, we note that any allegation of error not specifically addressed

above has been considered and rejected as having no merit.” 63 S.W.3d at 168.

The trial court transcript reflects that Taylor’s counsel made repeated attempts to

exclude Wade’s statement from being admitted, objecting that its admission was a

Confrontation Clause violation because the statement had not been cross-examined and, with

Wade not testifying, could not be cross-examined. Counsel moved to exclude Wade’s

statement [Trial Record (“TR”) 37, 5437] and vigorously objected on the record to its

admission. Counsel’s motion in limine objecting to the admission of Wade’s statement and

discussion with the trial court is memorialized in thirty pages of trial transcript. [Transcript

of Evidence (“TE”) 4/10/86, 2-31] Although the trial court ruled that Wade’s statement was

admissible, Taylor’s counsel succeeded in getting Wade’s statement redacted to delete

evidence of other crimes. Because Taylor’s counsel recognized the issue and strenuously

objected on Taylor’s behalf, his trial counsel cannot be deemed ineffective. The fact that

counsel did not prevail on his motion in limine to prohibit the admission of Wade’s statement

does not change the fact that Taylor received effective assistance of counsel. Thus, there was

no violation of Taylor’s Sixth Amendment right to counsel. See Bell, 535 U.S. at 694-98,

Consequently, the Kentucky Supreme Court’s decision in 7% aylor II rejecting this

claim as having no merit was not an unreasonable determination of the facts in light of the

evidence. Further, it was neither contrary to, nor did it involve an unreasonable application

of clearly established federal law as determined by the United States Supreme Court.

Taylor’s contention otherwise is without merit.

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Ground 3 — Admission of Testimony Regarding Wade’s Verbal Acts Was Proper

. and Did Not Violate the Confrontation Clause.

The foundation for this claim is based on the following facts: Lieutenant Moody

testified that after Cecil Pepper identified Wade in a lineup, he and Detective Duff took

Wade to 716 E. Oak Street and 915 S. Jackson Street, where Wade identified the residences

at these addresses as Taylor’s residences. [TE 4/9/86, 105-10] Detective Sherrard testified

that, on the basis of Wade’s information that the residences located at these two addresses

were Taylor’s, he went to 915 S. Jackson Street to get a description of the residence for a

search warrant. [TE 4/8/86, Vol. I, 23-24]

On direct appeal, Taylor claimed that the police officer’s testimony was inadmissible

hearsay evidence (since Wade did not testify at trial) and argued that no exception to the

hearsay rules justified the admission of this testimony. Sanborn v. Commonwealth, 754 _

S.W.2d 534, 541 (Ky. 1988). Taylor contended that the jury should not have been allowed to

learn why the police knew to search these two particular residences. Taylor contends that

this hearsay evidence amounted to an impermissible vouching for Wade’s veracity and

bolstered the taped statement Wade made that painted Taylor as the triggerman which Taylor

submits was a critical factor in the prosecution’s case.

In Taylor I, the Kentucky Supreme Court affirmed Taylor’s conviction, finding no

merit to any of his claims, and addressed this particular claim in the following manner:

Taylor, through counsel, raises forty-four assignments of alleged error in this

appeal. We have carefully reviewed all of the issues presented by Taylor and

this opinion will concentrate on the question of the admissibility of the Wade

confession and the propriety of the trial judge’s refusal to grant a second

change of venue. Allegations of error which we consider to be without

merit will not be addressed here.

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821 S.W.2d at 74 (emphasis added).

In this habeas petition, Taylor claims that the admission of Lieutenant Moody and

Sherrard’s testimony violated the Confrontation Clause because Wade’s statements to the

police while he was in custody were testimonial statements against him by a non-testifying

witness. Taylor also contends that the admission of Moody and Sherrard’s testimony

violated the Due Process Clause because it related to Wade’s veracity and his statement

implicating Taylor as the triggerman was a critical factor in the prosecution’s case. Taylor

relies on Snowden v. Singletary, which indicates that “[a] denial of fundamental fairness

occurs whenever the improper evidence ‘is material in the sense of a crucial, critical, highly

significant factor.’”” 135 F.3d 732, 737 (11th Cir. 1998) (quoting Osborne v. Wainwright,

720 F.2d 1237, 1238 (11th Cir. 1983)).

Federal habeas corpus ordinarily does not lie to review questions about the

admissibility of evidence. McGuire, 502 U.S. 62. Generally, to rise to the level of a

constitutional violation, the state court evidentiary ruling complained of must be so

prejudicial that it renders a fair trial impossible. Lisenba v. People of State of California, 314

U.S. 219, 228-29 (1941). The evidentiary ruling must be so egregious as to amount to a

denial of fundamental fairness. McGuire, 502 U.S. at 67; see also Lewis v. Jeffers, 497 U.S.

764, 780 (1990). This obviously is a high standard. See, e.g., Baze, 371 F.3d at 318.

Although Taylor characterizes the police officers’ testimony as “hearsay,” his

complaint centers on the fact that the police officers escorted George Wade to two different

residential addresses that he identified as being Taylor’s residences. Armed with this

information, the police officers then obtained a search warrant for these residences. Taylor

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misrepresents this testimony as hearsay. Wade’s act of pointing out Taylor’s residences to

the police was nothing more than a “verbal act.” Moody did not repeat anything that Wade

said. Instead, he described what Wade said. For this reason, the hearsay rule does not apply,

and there was no need to consider if it were admissible as an exception thereto. See Preston

v. Commonwealth, 406 S.W.2d 398, 401 (1966). To be admissible, evidence of a verbal act

need only be relevant to the facts in issue. Jd. (“This is not hearsay evidence; it is not

admitted for the purpose of proving the truth of what was said, but for the purpose of

describing the relevant details of what took place.”) In Sanborn, the Court elaborated on the

relevancy requirement of verbal act evidence. 754 S.W.2d at 541. The Court noted that a

verbal act introduced through the testimony of an investigating police officer is admissible if

two requirements are met. First, it must tend to explain why the police officer took certain |

action, and second, the police officer’s taking of that action must involve a fact in issue:

The rule is that a police officer may testify about information furnished to him

only where it tends to explain the action that was taken by the police officer as

a result of this information and the taking of that action is an issue in the case.

Such information is then admissible, not to prove the facts told to the police

officer, but only to prove why the police officer then acted as he did. It is

admissible only if there is an issue about the police officer’s action.

Id.

As stated in Lawson’s Kentucky Evidence Law Handbook, § 8.00 (2d ed. 1984), in

distinguishing “verbal act” doctrine evidence from hearsay, “[ajn extrajudicial statement has

a proper nonhearsay use when its utterance (not its substance) is a part of the issues of the

case.” The fundamental premise underlying the use of such testimony is not the

admissibility of “investigative hearsay” but the “verbal act” doctrine because it is admitted

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“for the purpose of describing the relevant details of what took place.” Preston, 406 S.W.2d

at 401.

In Taylor’s case, this evidence was relevant because it explained why Lt. Moody

initiated the search of Taylor’s residences. The identification and search of Taylor’s

residences clearly involved material issues of fact. Thus, the police officer’s testimony was

admissible under the “verbal act” doctrine. It was not hearsay, and the trial court did not err

iin admitting it. Because this information was presented only to explain why the officers

took action to search Taylor’s residences, this testimony was admissible under Kentucky’s

evidentiary rules. The Kentucky Supreme Court’s decision in Taylor I, rejecting this claim

as having no merit, was not an unreasonable determination of the facts in light of the

evidence. Further, it was neither contrary to nor did it involve an unreasonable application of

clearly established federal law as determined by the United States Supreme Court.

B. The Proximity of the Wade and Taylor Trials

Wade’s trial immediately preceded that of Taylor.* Wade’s trial concluded on March

5, 1986. On March 13, 1986, Wade was sentenced and received a life sentence. [TR 50,

7335-38] Taylor’s trial began on March 17, 1986. There was significant publicity regarding

the decision to sentence Wade to a life term rather than impose the death penalty. As a result

of the publicity, on March 10, 1986, Taylor moved for a continuance. Taylor claimed that

the public was outraged that Wade did not receive the death penalty, and he argued that a

1

4 Taylor’s claims identified as Grounds 4, 5, and 6 all concern the proximity of Wade and Taylor’s

separate trials. In the interests of judicial economy, the following factual background will serve as the

basis for these arguments.

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continuance would be a suitable alternative to a second change of venue. However, the trial

court denied the motion to continue.

On March 17, 1986, the day jury selection began, Taylor filed a second motion to

change venue. He cited the continuing publicity regarding the Wade sentence, including

numerous newspaper articles and media coverage. The motion was served on the

Commonwealth on March 14, 1986, and filed on March 17. Taylor also filed an addendum

to the motion on March 17, requesting a change of venue to Boyle County, Anderson

County, or Fulton County. The trial court denied Taylor’s second motion for a change of

venue because Taylor did not give “reasonable notice” to the Commonwealth. [TR 52, 7596]

Before trial began, Taylor moved the trial court to reconsider its denial of the motion, but

that motion was also denied. However, while denying the motion, the trial court advised

counsel that it was keeping an open mind as to a possible change of venue, indicating that a

second change of venue was available if difficulty occurred in seating a fair and impartial

jury in Fayette County.

Ground 4 — The Trial Court Did Not Err by Denying Taylor’s Request for

Change of Venue Due to Pretrial Publicity and Information about Wade’s Trial.

On direct appeal, Taylor claimed that he was deprived of a fair trial by the denial of

his motion for a second change of venue. Specifically, he argued that pretrial publicity and

information about the Wade trial and sentence made it impossible for a fair and impartial

jury to be seated in Fayette County. “Supreme Court precedent instructs that, when

evaluating whether the pretrial publicity violated the defendant’s right to an impartial jury,

[the court is] to consider the content, quantity, and timing of the publicity.” Hetzel v. Lamas,

372 F. App’x 280, 282-83 (3rd Cir. 2010) (citing Murphy v. Florida , 421 U.S. 794, 798-

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