McAtee v. Commonwealth

CUNNINGHAM, J.,

Concurring in Result:

I concur in result only. I respectfully submit that the majority goes to great length in its expansive dicta to turn Jett v. Commonwealth on its head and, by implication, even creates confusion as to the proper use of written or videotaped confessions.

On July 9, 2009, Rodney Haskins was murdered in front of Pamela Beals and Gregory Kilgore. Both gave incriminating statements against Appellant. Beals gave her statement by telephone. Kilgore gave his statement during a videotaped interview. Both changed their stories at trial and said they could not remember. The trial court properly allowed the Commonwealth to impeach both witnesses by their prior statements. As the majority correctly notes in citing KRE 801(a)(1), a statement is inconsistent if the witness simply “claims to be unable to remember it.” The trial court allowed into evidence the notes of Detective Trees’ telephone interview with Beals and the videotaped interview with Kilgore.

Perhaps what most disturbs me about the majority opinion is its totally misplaced reliance on Berrier v. Bizer. That case is in no way germane to the discussion at hand. It was a wrongful discharge from employment case. The employer went through the store getting statements from employees and. reduced them to written summaries. Before trial, the employer asked the employees to review the statements for correctness and initial them. At trial, the employees were called to testify. The defendant employer then asked that the summaries be introduced into evidence to bolster and supplement their testimony. Objections were made, but they were admitted anyway. This Court ruled it was error to admit the summaries because no foundation had been established for their admission. There were also matters in the summaries which the witnesses did not testify to at trial, making their content hearsay.

The Berrier court went to great lengths to explore different ways the reports might have been admissible. One option where they would have been admissible was if they had been inconsistent statements from the witnesses’ testimony at trial, as allowed by KRE 801. The Court said that the witnesses “did not testify inconsistently with the contents of the ‘witness interview’ summaries.” Of course, that is exactly what we have here. So, the Berrier decision does not contravene the trial court’s ruling here, but actually supports it.

I am especially concerned with our Court’s direction here today in regard to the videotaped interview with Kilgore and the transcript. Unlike the detective’s notes, this was the actual verbatim statement of the witness without any opportunity for an error in reporting of its content.

The majority makes it dear that evidence of the contents of inconsistent *637statements of witnesses — be they written, orally recorded, or videotaped — may be “introduced” by way of witnesses; but the statements themselves do not come in as exhibits and go to the jury room.

For almost 45 years, the landmark case of Jett v. Commonwealth has stood in good stead to assist litigants in capturing the truth out of witnesses who, for various reasons, try to lie in court. The progeny of that historic decision includes a myriad of cases where the recordings — either written, oral or videotaped — have been deemed admissible. See, e.g., Alexander v. Commonwealth, 862 S.W.2d 856, 860-61 (Ky.1993) (overruled on other grounds by Stringer v. Commonwealth, 956 S.W.2d 883 (Ky.1997) (stating that a written record was appropriately introduced as an inconsistent statement)); Porter v. Commonwealth, 892 S.W.2d 594, 597 (Ky.1995) (determining that the introduction of a videotaped guilty plea was properly allowed as an inconsistent statement); Shepherd v. Commonwealth, 251 S.W.3d 309, 322 (Ky.2008) (allowing the introduction of a recorded police interview as an inconsistent statement).

The jury will now be left to strive to remember what the recorded out-of-court statement said. This impedes truth and justice because it forces the jury to simply rely upon its fallible recollection.

I digress just a bit to express a most realistic concern about how our opinion here today will affect the prosecution of domestic violence. In a large number of cases, the victim will recant. Several prosecutors in this state have established special investigative units to record the truthful and spontaneous complaint freshly made by the victim. When weeks later the victim recants, the playing and introduction of the audio tape at trial becomes critical. Just as critical is the introduction of the taped interview for the jury to review in the jury room. Otherwise, the perjured and misleading in-court testimony overwhelms the truth. Our opinion here today severely impedes that important process.

Most troublesome to me is the majority’s opinion that, even after the admission of the videotape into evidence, it was error to allow the jury to watch it in the privacy of the jury room.

RCr 9.74 states as follows:

No information requested by the jury or any juror after the jury has retired for deliberation shall be given except in open court in the present of the defendant (unless the defendant is being tried in absentia) and the entire jury, and in the presence of or after reasonable notice to counsel for the parties.

No information was requested by the jury after it had retired in this case. The jury only requested a means to re-view the information that had already been admitted into evidence and taken to the jury room. What is the point of introducing an exhibit into evidence and allowing the jury to take the exhibit to. the jury room unless it can be examined by the jury in the jury room? Such logic would dictate that any evidence examined in the courtroom must be left in the courtroom.

For some reason, the majority has anchored its reasoning on the theory that the videotaped statement in question was testimonial. Confessions are certainly testimonial. In many instances, a confession may be of such powerful import as to send a person to prison. It is sometimes fully written, but many times is tape recorded or videotaped. Of the thousands of cases which have been tried in this Commonwealth dealing with confessions, I challenge this Court to cite one case where a challenge was made to a transcribed confession going to the jury room. Yet, to*638day, we extend an open invitation to even undermine that ancient practice.

Writes Justice Scott for the majority: “What is still unclear, perhaps, is whether a party’s recorded confession — which is obviously testimonial in nature — may be taken to the jury room upon deliberation.... We reserve judgment on this issue until it is properly before us.”

The admission of written or videotaped confessions into evidence, and their review in the jury room, is a long standing practice in this Commonwealth. We do violence to, and seriously undermine, that practice here today.

Furthermore, most of the case law cited by the majority is not germane.

McGuire and Malone have no relevance as they deal with the issue of the in-court testimony of a trial witness being replayed in open court without the defendant being present.

Mills has no relevance because it deals with the erroneous admission of taped interviews with witnesses that had not been played at trial nor had a proper foundation been laid.

Welch has no relevance because it deals with the judge’s ex parte answering of questions sent out by the jury during deliberations.

Berrier we have already discussed. It supports the trial court, not the majority’s view.

The majority goes to great length to respond to this dissent. I find no solace in that effort. I would simply ask the Court to pause and consider the practical effect of our decision here today; There is no testimonial distinction between videotaped statements of witnesses, as in this case, and written statements and transcripts. So, in the future, when a written inconsistent statement is introduced into evidence, that exhibit will remain in the courtroom. If the jury wishes to review it, they will be required to do so in open court. There, in the muted presence of the judge at the bench, with the lawyers seated at tables and the defendant returned from the jail, the jurors will silently read and pass the exhibit among themselves. Eleven jurors will be staring into space the entire time. I find this a cumbersome and unnecessary waste of time. And, yes, it “turns Jett on its head.”

For all the foregoing reasons, I ask to be exonerated from these portions of the majority opinion. Otherwise, I concur.