Supreme Court of Kentucky
2020-SC-0080-DG
COMMONWEALTH OF KENTUCKY APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. NO. 2017-CA-1665
KNOX CIRCUIT COURT NO. 15-CR-0112-003
STEVEN D. ROARK APPELLEE
ORDER GRANTING PETITION FOR MODIFICATION
The Petition for Modification, filed by the Appellee, of the Opinion of the
Court, rendered December 16, 2021, is GRANTED.
All sitting. All concur.
ENTERED: FEBRUARY 24, 2022.
_______________________________________
CHIEF JUSTICE
CORRECTED: FEBRUARY 24, 2022
RENDERED: DECEMBER 16, 2021
TO BE PUBLISHED
Supreme Court of Kentucky
2020-SC-0080-DG
COMMONWEALTH OF KENTUCKY APPELLANT
ON REVIEW FROM COURT OF APPEALS
NO. 2017-CA- 1665
KNOX CIRCUIT COURT NO. 15-CR-0112-003
V.
STEVEN D. ROARK APPELLEE
OPINION OF THE COURT BY JUSTICE CONLEY
REVERSING AND REMANDING
This case comes before the Court on appeal by the Commonwealth, the
Appellant, from the opinion of the Court of Appeals which reversed Steven
Roark, the Appellee’s, conviction and sentence, ordering a new trial. We
granted discretionary review as there was a novel question whether the
Commonwealth had the same motive and opportunity to cross-examine a
person during their guilty plea as it would have if the same person were
subsequently a witness at a criminal trial under KRE1 804(b)(1). After oral
argument and review of the record, however, we conclude the proposed
witness’ unavailability is a threshold matter dispositive of the case.
1 Kentucky Rules of Evidence.
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As a result, we hold the trial court did not abuse its discretion in finding
the witness was not unavailable pursuant to KRE 804(a)(5), and reverse the
Court of Appeals. We accordingly remand this case to the Court of Appeals for
consideration of Roark’s additional arguments that were not addressed by the
court due to its reversal of his conviction.2
I. Factual and Procedural Background
On February 25, 2015, Roark and Alvin Couch, along with several
others, were arrested by Kentucky State Police in Knox County after a search of
the trailer (wherein they were present) revealed methamphetamine, equipment
for the manufacturing of methamphetamine, and other drug paraphernalia.
The Commonwealth indicted all persons on manufacturing methamphetamine,
first offense; possession of a controlled substance, first degree; controlled
substance endangerment to a child, fourth degree; tampering with physical
evidence; and possession of drug paraphernalia. Roark was also indicted as a
persistent felony offender, but the charge was dropped prior to his trial.
In early May 2017, Couch entered an open plea of guilty. During the plea
colloquy, he made several statements to the effect that he acted alone in
manufacturing the methamphetamine. Later that same month, Roark went to
trial. His defense was he had no part in manufacturing the methamphetamine.
He sought to introduce a certified video record of Couch’s plea colloquy as
exculpatory evidence in support of this defense. The trial court, however,
2 Roark v. Commonwealth, 2017-CA-001665-MR, 2020 WL 594129, at *7 (Ky.
App. Feb. 7, 2020) (“Because we are reversing for a new trial, we need not address
Roark's arguments that there were three errors regarding his jury instructions.”).
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refused to admit the video as it believed Couch was available to testify in
person.
At the time of Roark’s trial, Couch was known by both the
Commonwealth and Roark to be located at the Leslie County Detention Center.
Both Leslie and Knox counties are in Southeastern Kentucky. Though they do
not share a contiguous border, we take notice that the Leslie County Detention
Center, located in Hyden, is approximately 51 miles distance by public roadway
from the Knox County courthouse, located in Barbourville.3
Roark represented to the trial court he had subpoenaed Couch to testify
at trial and his investigator had delivered the subpoena to the Leslie County
Detention Center. His counsel specifically stated, “My investigator took care of
that and I’m pretty sure it was left with the defendant, but I will not—but I
don’t want to go on record. He told me it was taken care of and I just
assumed.” There was also some mention of a transport order that had been
discussed between the trial judge and defense counsel prior to trial, but Roark
concedes no transport order exists in the record. Neither is there a returned
subpoena. The trial court found no court order existed compelling Couch’s
attendance at trial, therefore he did not qualify as an unavailable witness
under KRE 804(a)(5).
Roark was convicted of manufacturing methamphetamine, possession of
a controlled substance, tampering with physical evidence, and possession of
drug paraphernalia. The jury recommended a ten-year sentence on the
3 Courts will take judicial notice of the geography of the state and location of
cities therein. Commonwealth v. Payne, 245 S.W.2d 581, 582 (Ky. 1952).
3
manufacturing methamphetamine count, with concurrent sentences of one
year each on all other charges totaling ten years’ imprisonment. The trial court
imposed the recommendation. Roark appealed.
The Court of Appeals reversed his conviction and ordered a new trial. Its
decision rested on three points. First, citing Dickerson v. Commonwealth, 174
S.W.3d 451 (Ky. 2005), it stated its belief that the refusal to admit the video
recording implicated Roark’s Due Process right to present a defense. Secondly,
it concluded Roark’s counsel’s representation to the trial court that a subpoena
had been delivered was sufficient to demonstrate a good faith effort had been
made to procure Couch’s presence at trial. The court reasoned since the
Commonwealth has a higher burden to demonstrate a witness’ unavailability
pursuant to the Confrontation Clause, this Court’s approval of unavailability
determinations based solely upon representations of the Commonwealth must
perforce mean an accused defendant’s representations also are sufficient to
determine unavailability. Additionally, the court believed the trial court’s
demand for physical proof of a subpoena or transport order was effectively
creating a new element under KRE 804(a)(5). Finally, under KRE 804(b)(1), the
court ruled the Commonwealth has the same opportunity and motive to cross-
examine a defendant during their guilt allocution as it would have if the same
person was subsequently a witness in a criminal trial of another person.
We now address the merits of the appeal.
II. Standard of Review
Determinations of a witness’ availability for purposes of KRE 804(a) are
reviewed for an abuse of discretion. Brooks v. Commonwealth, 114 S.W.3d 818,
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821 (Ky. 2003). In the civil context, though equally applicable here, we have
noted this standard assumes the trial court is “empowered to make a
decision—of its choosing—that falls within a range of permissible decisions.”
Miller v. Eldridge, 146 S.W.3d 909, 915 (Ky. 2004) (quoting Zervos v. Verizon
New York, Inc., 252 F.3d 163, 169 (2d Cir. 2001)). Thus, only a decision which
is “arbitrary, unreasonable, unfair, or unsupported by sound legal principles”
will be reversed. Id. at 914.
III. Analysis
A. KRE 804(a)(5) and the Good Faith Requirement
Among the several scenarios to determine witness availability, a witness
is unavailable if he is “absent from the hearing and the proponent of the
statement has been unable to procure the declarant's attendance by process or
other reasonable means.” KRE 804(a)(5). The Court of Appeals premised its
ruling below on the belief that Roark had a lesser standard of proof to
demonstrate unavailability than the Commonwealth. The court also believed
the Commonwealth’s heightened burden “has not been proven to be all that
onerous as out-of-court testimony has been admitted even without an effort to
subpoena the witness or submit proof of true unavailability based on bare
assurances from the Commonwealth that a witness is unavailable.” This
statement was supported by citations to Lovett v. Commonwealth, 103 S.W.3d
72, 83-4 (Ky. 2003), and St. Clair v. Commonwealth, 140 S.W.3d 510, 539-40
(Ky. 2004).
The Commonwealth does indeed have a constitutional burden of proof to
demonstrate a good faith effort pursuant to the Confrontation Clause. Barber v.
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Page, 390 U.S. 719, 724-25 (1969). But as Professor Lawson aptly notes, our
rule also “intends to require a good faith effort to procure the attendance of the
declarant at trial even when he is beyond the court’s jurisdiction.” Robert G.
Lawson, The Kentucky Evidence Law Handbook § 8.40[6][f], at 645 (5th ed.). In
a word, KRE 804(a)(5) embraces the Barber rule. KRE 804(a)(5) makes no
distinction between Commonwealth and defendant, speaking only of the
“proponent of the statement . . .” Thus, the good faith requirement is equally
applicable to all parties, and there is no basis within the rule to find a
heightened burden for the Commonwealth.
In Marshall v. Commonwealth, we held “[a] trial court cannot merely rely
on the Commonwealth's assurances of unavailability in deciding to admit
hearsay evidence that is conditioned upon unavailability.” 60 S.W.3d 513, 519
(Ky. 2001). Importantly, we cited to the case of Justice v. Commonwealth, 987
S.W.2d 306, 313 (Ky. 1998), for that holding. The Justice case, however, did
not involve the Commonwealth asserting the unavailability of a witness but
rather the accused defendant. Id. Thus, we have consistently held KRE
804(a)(5) requires the proponent of a witness, whether the Commonwealth or a
defendant, to demonstrate a good faith effort to procure the witness by process
or other reasonable means. Moreover, we have disapproved of trial courts
relying merely on the assurances of a proponent to predicate a finding of
unavailability. As we remarked before,
the requirement of KRE 804(a)(5) that the proponent of the
introduction of the statement must show that he was unable to
produce the declarant through process or other reasonable means
is a logical safeguard against self-serving fabrication; i.e., if the
declarant's testimony is critical to the defense [or prosecution],
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then it stands to reason that the defendant [or prosecutor] would
do all he reasonably could to put the declarant before the jury.
Id. at 314. The Court of Appeals’ understanding of our holdings in Lovett and
St. Clair to the contrary does not withstand scrutiny.
In Lovett, the defendant had entered an Alford plea and appealed the trial
judge’s order that an unavailable witness’ deposition be taken by video tape in
South Dakota with both the defendant and his counsel present. Lovett, 103
S.W.3d at 77. Thus, the issue was not whether introduction of witness
testimony violated the Confrontation Clause. Id. “In fact, because Appellant
entered a plea before trial, the trial judge never made a final ruling on the
admissibility of the deposition at trial; indeed, the deposition was never taken.”
Id. at 82. Lovett then is completely inapposite to the case at bar and its peculiar
factual scenario suggests a limited range of application. Moreover, the issue of
the Commonwealth’s good faith effort was not that the trial court had relied
only upon the Commonwealth’s mere verbal assurances of unavailability, but
the Commonwealth had not followed the Uniform Act to Secure the Attendance
of Witnesses from Within or Without a State in Criminal Proceedings.4 We held
the Commonwealth had no mandatory duty to resort to that law in order to
satisfy the good faith effort requirement. Id. at 84. Therefore, we believe the
Court of Appeals’ reliance on Lovett is misplaced. Lovett is both factually and
legally distinguishable. Additionally, the Court of Appeals’ interpretation of
Lovett’s import is directly contrary to otherwise clear statements of law on
point. Justice, 987 S.W.2d at 314; Marshall, 60 S.W.3d at 519.
4 KRS 421.230 - 421.270.
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The reliance upon St. Clair is equally misplaced. In fact, Part III(D)(4) of
that opinion—addressing the determination whether a witness, Van Zandt, was
unavailable—divided this Court in several ways. No position advocated on that
issue commanded a majority. The memorandum opinion’s discussion in Part
III(D)(4), endorsed only by Justice Graves, equivocated on the issue; noting only
that a doctor’s letter stating Van Zandt could not travel due to pregnancy
complications was handed to the defense counsel but not to the trial judge nor
ever submitted in the record. St. Clair, 140 S.W.3d at 540. After noting “the
Commonwealth could have made a much cleaner record . . . [,]” Justice Graves
concluded the trial court did not abuse its discretion. Id.
Justice Cooper, however, joined by Chief Justice Lambert, concurred
only with the result of Part III(D)(4). He preferred to “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 . . .” Id. at 574 (Cooper, J.,
concurring in part and dissenting in part). Nonetheless, Justice Cooper did
believe the record demonstrated the defendant and trial judge were handed
physical proof of the doctor’s letter at a hearing on the issue of Van Zandt’s
unavailability. Id. at 573. Thus, three justices believed physical evidence
existed to demonstrate the validity of the Commonwealth’s assertions Van
Zandt could not travel due to pregnancy complications; therefore, she was
properly deemed unavailable under KRE 804(a)(4).
Contrary to that belief, three justices dissented from the conclusion in
Part III(D)(4). Justice Keller, joined by Justices Johnstone and Stumbo, cited
the Court’s decision discussed above in Marshall v. Commonwealth, thereby
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concluding “there is absolutely nothing in the record of this case to
demonstrate Ms. Van Zandt's unavailability other than the Commonwealth's
representation that Ms. Van Zandt's pregnancy prevented her from traveling to
Kentucky . . .” Id. at 576 (Keller, J., concurring in part and dissenting in part).
Thus, three justices believed no physical evidence supported the
Commonwealth’s representations in that case. Justice Wintersheimer did not
join any opinion but concurred in result only. Id. at 572.
Suffice it to say, St. Clair is not binding authority concerning KRE
804(a)(5)’s evidentiary demand to demonstrate good faith. But given our
understanding of the good faith requirement contained in KRE 804(a)(5) as
explained in Justice v. Commonwealth and Marshall v. Commonwealth, we now
explicitly reject Justice Cooper’s partial concurrence in St. Clair insofar as it
holds the mere representations of a proponent are sufficient to predicate a
determination of a witness’ unavailability. Justice Keller’s partial dissent
advocating for the rule as laid down in Marshall, 60 S.W.3d at 519, was and is
the correct statement of law in the Commonwealth. St. Clair, 140 S.W.3d at
576. (Keller, J., concurring in part and dissenting in part).
KRE 804(a)(5) imposes an equal burden on both parties to demonstrate a
good faith attempt had been made to procure a witness’ presence at trial before
the witness will be deemed unavailable. Generally, the trial court may not rely
on mere verbal representations of the proponent to determine unavailability.
Marshall, 60 S.W.3d at 519. Instead, the evidence demanded to prove good
faith must be independent of a proponent’s mere verbal representations, lest
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the “self-serving fabrication” intended to be guarded against comes in through
the backdoor. Justice, 987 S.W.2d at 314.
B. Roark’s Failure to Demonstrate Good Faith Effort per KRE 804(a)(5)
Having clarified the rule, the Court of Appeals’ opinion cannot stand. At
trial, the only evidence as to Couch’s unavailability offered by Roark was his
counsel’s statement that his investigator had delivered a subpoena to the Leslie
County Detention Center. Significantly, counsel declined to affirm the
subpoena had been personally delivered to Couch. Despite this, the subpoena
is not the dispositive factor. Because Couch was in the custody of the
Commonwealth, a subpoena would have been insufficient to procure his
presence at trial.
It is a matter of routine practice that when a witness is in the
Commonwealth’s custody and his presence is necessary at a hearing or trial,
the proponent of the witness will obtain a transport order signed by the trial
judge authorizing the witness’ release at the designated time and to the
designated courthouse, and deliver said transport order to the relevant
custodial authority. The record contains no transport order although Roark’s
attorney did allude to one. But mere verbal representations are not enough to
determine the transport order existed. Justice, 987 S.W.2d at 314.
Neither the Rule of Civil Procedure nor the Rules of Criminal Procedure
speak of transport orders. Nonetheless, given their ubiquity in the day-to-day
business of the courts, we hold transport orders fit comfortably within the
“other reasonable means” contemplated by KRE 804(a)(5).
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C. Roark’s Due Process Right was not Harmed by Application of the
Rules of Evidence
Finally, we address the Court of Appeals’ conclusion that application of
the rules of evidence in this case constituted a Due Process violation per the
Fourteenth Amendment of the Constitution. We believe that conclusion without
merit. While we do not denigrate the holding in Dickerson v. Commonwealth,
174 S.W.3d 451 (Ky. 2005), we do not believe it is controlling in this case.
“[W]here constitutional rights directly affecting the ascertainment of guilt
are implicated, the hearsay rule may not be applied mechanistically to defeat
the ends of justice.” Chambers v. Mississippi, 410 U.S. 284, 302 (1973). But we
have applied that rule to mean only where the rules of evidence “place an
impossible bar” upon the proponent, obstructing his presentation of a defense,
will the constitutional considerations overcome evidentiary niceties. Justice,
987 S.W.2d at 313. Dickerson conforms to that condition.
In Dickerson, the trial court refused to admit a transcript, prepared by
the proponent, from a video recording of an unavailable witness’ prior
testimony, which was the sole evidence the defendant could present, because it
was not properly authenticated pursuant to CR5 30.06(1). Dickerson, 174
S.W.3d at 470. We noted, however, that CR 30.06(1) applied to an era prior to
the adoption of video recordings as official records for trials. Id. In short, by
applying CR 30.06(1) the trial court essentially required a non-existent court
reporter to authenticate the proponent’s transcript which, even had the court
reporter existed, he would not have been empowered to do—an impossible bar
5 Kentucky Rules of Civil Procedure.
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if there ever was one. Instead, the proper rule the trial court should have
applied was KRE 901(a). Id. at 470. After identifying the correct rule, we then
verified the proponent’s transcript satisfied the conditions of KRE 901(a). Id. at
471. Only after ensuring the transcript conformed to the rules of evidence, did
we determine the transcript should be admitted upon retrial if the witness was
again unavailable. Id. Dickerson therefore does not stand for the proposition
that when a defendant’s only evidence is hearsay, he is constitutionally
absolved from complying with the rules of evidence.
In this case, had Roark simply made copies of the returned subpoena
and transport order he alleged existed and presented them to the trial court,
the court would have had a proper basis to find Couch unavailable and admit
the video recording. This is hardly an impossible bar to meet nor is it a
mechanistic application of KRE 804(a)(5). Dickerson is inapplicable to his case.
Roark’s right to present a defense was not harmed by the trial court’s refusal to
find Couch unavailable.
IV. Conclusion
KRE 804(a)(5) requires a proponent of a witness demonstrate good faith
efforts have been made to procure the witness’ presence at trial either by
process or other reasonable means before the witness will be declared
unavailable. Mere verbal representations of the proponent may not be relied
upon by the trial court to predicate a determination of unavailability. Roark did
not satisfy this burden as he could not produce a copy of the returned
subpoena delivered to Alvin Couch nor a transport order delivered to an
authorized authority at the Leslie County Detention Center. Therefore, the trial
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court did not abuse its discretion in determining Alvin Couch was available for
trial. The Court of Appeals is reversed. This case is hereby remanded to the
Court of Appeals for consideration of Roark’s additional arguments.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Shannon Dupree
Assistant Public Advocate
Department of Public Advocacy
COUNSEL FOR APPELLEE:
Daniel Cameron
Attorney General of Kentucky
Robert Baldridge
Assistant Attorney General
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