Slaven was convicted of murder and first degree robbery in the Perry Circuit Court and sentenced to life imprisonment without the benefit of parole for twenty-five years. The charges arose out of a robbery and a shooting at a gas station. The Commonwealth’s case was based on circumstantial evidence. Slaven relied on an alibi defense that he was at home with his wife.

At trial Slaven and his wife Becky invoked the marital privilege set out in KRE 504. However, the trial court ruled she was an unavailable witness and admitted her out of court statements under KRE 804(a)(1). On appeal, Slaven argued the trial court erred when it allowed the prosecutor to introduce his wife’s out of court statements through the testimony of other witnesses.

The Kentucky Supreme Court stated that an out-of-court statement of a witness who is precluded from testifying because of invocation of the spousal privilege is admissible if that statement falls within a recognized exception to the hearsay rule and if it does not divulge a confidential marital communication. Applying this test to the facts of the case at bar, the Court examined each of Becky’s fourteen out of court statements to determine if it was hearsay; whether it fell within an exception to the hearsay rule; whether it was excluded by the marital privilege, and whether its admission at trial was prejudicial. Out of a total of fourteen statements, the Court held that admission of seven constituted prejudicial error requiring reversal of Slaven’s convictions. The Court found the admission of two other statements was harmless error, and held those statements should be excluded upon retrial.

The evidence presented at trial from numerous witnesses showed that Slaven had consumed large quantities of beer, whiskey, xanax and marijuana on the day of the charged offenses. Based on this evidence, the trial court instructed the jury, in a separate instruction, on the defense of intoxication. However, the trial court refused to give Slaven’s requested instruction on second degree manslaughter.

The Kentucky Supreme Court held it was reversible error for the trial court to fail to instruct the jury on the lesser-included offense of second degree manslaughter. The Court stated that "while voluntary intoxication is a defense to intentional murder, it is not a defense to second degree manslaughter." A jury’s belief that a defendant was so voluntarily intoxicated that he did not form the requisite intent to commit murder does not require an acquittal, but could reduce the offense from intentional homicide to wanton homicide, i.e., second degree manslaughter. As part of its instructions, the trial court included a definition of intoxication and voluntary intoxication. During its deliberations the jury sent a note to the trial court asking for a clarification of the difference between the two terms and does the fact that the intoxication is voluntary have any bearing on the intoxication defense instruction. The trial court did not answer the jury’s questions.

On appeal, Slaven argued that the definition of voluntary intoxication was prejudicial surplusage. The Kentucky Supreme Court held the error was not in the instruction on the definition of voluntary intoxication, but in failing to instruct on second degree manslaughter and the definition of wantonly.

A third issue raised by Slaven was that the introduction of a prior consistent statement of prosecution witness Joey Gadberry amounted to improper bolstering. Gadberry and Slaven had spent the afternoon and early evening of the day of the robbery together. Gadberry gave two written statements to the police: one on January 15^th and a more detailed statement on January 24^th. During his direct testimony, Gadberry told the jury about Slaven’s activities on the day of the robbery. On cross-examination, defense counsel pointed out that most of the significant details of Gadberry’s testimony were not included in his January 15^th statement to the police. On redirect, the prosecutor attempted to rehabilitate Gadberry by having him read to the jury, in its entirety, his January 25^th statement.

The Supreme Court pointed out it was Slaven who initially introduced portions of the January 28^th statement. The Court held that [o]nce a portion of a statement is introduced by one party, the rule of completeness allows the adverse party to require the introduction of the remainder of the statement. KRE 106. Thus, no error occurred.

Slaven raised the following additional issues on appeal.

First, Slaven argued it was error to prevent him from impeaching a defense witness, Jeff Jones, a third cousin of the victim, by showing that at another time and place Jones had fired a pistol into a car occupied by another of his cousins, for which he was convicted of second degree wanton endangerment. The Supreme Court held this evidence was properly excluded because it was impeachment on a collateral matter; it was really an effort to get inadmissible evidence before the jury under the guise of impeachment; it was not relevant because it did not prove Jones killed Noble; and second degree wanton endangerment is a misdemeanor and only felony convictions may be used for impeachment.

Second, Slaven argued the prosecutor engaged in misconduct by repeatedly asking improper questions and then rephrasing or withdrawing them after the damage was done. The Supreme Court held the record did not reveal a pattern of improper questioning and thus there was no ground for reversal.

Third, the Court held it was not error for the prosecutor to elicit from the chief investigating officer that the two men had consulted on the case prior to seeking a warrant for Slaven’s arrest.

Fourth, the Court held it was not error for the prosecutor to elicit from Slaven’s mother-in-law that it was only after Slaven changed attorneys that he came up with the theory that either Joey Gadberry or Jeff Jones had stolen his pistol and used it to commit the robbery and murder. The evidence was relevant to support the Commonwealth’s theory that Slaven’s alibi was a recent fabrication.

Fifth, the Court held the prosecutor’s comment in closing argument, AI think he’s a cold-blooded murderer from the evidence that we’ve shown you, was within the bounds granted to both parties in closing argument.

Sixth, the Court held it was error to allow Sgt. Allen to testify that police dispatcher Wayne Delph called him to report an anonymous tip that Slaven had been seen in the vicinity of the crime with a 9-mm pistol, taking drugs and trying to borrow money.

Seventh, Slaven argued it was error for the trial court to use the capital penalty verdict forms at Section 12.10 in Cooper, Kentucky Instructions to Juries (Criminal), (4^th ed., Anderson, 1993), instead of the form at Section 12.10A. The Supreme Court held that even though it preferred the form in the latter section, it was not reversible error to use the form in Section 12.10.

Slavens’ convictions were reversed for a new trial.

Meredith was indicted in the Franklin Circuit Court for capital kidnapping, capital murder and first degree rape. At the close of the Commonwealth’s case, the trial court granted Meredith’s motion to dismiss the rape charge due to the Commonwealth’s failure of proof. At the close of all the evidence, the jury was unable to reach a verdict on the remaining kidnapping and murder charges. On retrial, Meredith was convicted of capital kidnapping and capital murder and sentenced to life imprisonment without the possibility of parole for twenty-five years and life respectively.

On appeal, the Kentucky Supreme Court addressed five issues raised by Meredith.

The first issue concerned the sufficiency of the evidence to support the capital kidnapping conviction. Meredith argued he was entitled to a directed verdict of acquittal because there was absolutely no evidence he unlawfully restrained Teresa Larsen with the intent to rape her. The Kentucky Supreme Court disagreed. The Court stated the evidence showed that Larsen’s body was found rolled up in a carpet, unclothed from the waist down, with a coaxial cable wrapped around her neck and right wrist. Other evidence showed the cable came from Meredith’s CB radio. There was also evidence that the duct tape, which was found around Larsen’s neck, was possibly used as a gag around her mouth and had slipped down around her neck due to decomposition of her body. Accordingly, it would not have been unreasonable for the jury to conclude that Meredith restrained Larsen with the intent to rape her.

The second issue concerned the introduction of improper, prejudicial hearsay testimony. Det. Ball testified the prosecutor had given him a letter written by Paul Childers, a concerned inmate, that said another inmate, Pearl Smith, had information about Meredith’s case. Childers’ letter alleged that Smith had told Childers that Meredith had told Smith certain details about the crime. As a result of the letter, Det. Ball went to interview Pearl Smith.

Smith testified and denied knowing Childers. The prosecutor asked Smith a series of questions as to what Smith told Det. Ball that Meredith had told Smith. Smith denied making most of the statements to Det. Ball. The prosecutor then asked Smith if Ball had read him a portion of the Childers’ letter which said: "Yeah, I [Meredith] really fucked up when I left that cable where the police could find it." Smith admitted that Ball had read the sentence to him, but testified that Meredith did not say that. The prosecutor then asked Smith if Ball had read a portion of the letter to him that said "Hank had strangled someone with a cord to a radio antenna," and asked Smith if Smith had said that. Smith denied making the statement.

Det. Ball was recalled later in the trial and the prosecutor elicited from him that Smith had told him that the information in the Childers’ letter was accurate. Defense counsel specifically objected to Det. Ball repeating the contents of the letter, since Childers was not a witness at trial, but the trial court made no ruling and the prosecutor had Det. Ball read portions of the letter to the jury.

Citing Jett v. Commonwealth, Ky., 436 S.W.2d 788 (1969), the Kentucky Supreme Court held Det. Ball’s testimony as to the contents of the Childers’ letter was inadmissible hearsay and reversible error. Unlike in Jett, where both the wife, who made the out-of-court statement, and the sheriff, to whom she allegedly made the statement, testified, in the case at bar Paul Childers never testified. Thus, Meredith was denied his right to confront the witnesses against him.

The Court pointed out that if the prosecutor’s true intent was to impeach Pearl Smith, he could have done so with the testimony of Det. Ball. Childers had no personal knowledge of the charged offenses and the letter was not necessary to prove what Smith told Det. Ball.

The Court also stated it was improper to place the contents of the Childers’ letter before the jury because it contained an opinion of a witness as to Meredith’s guilt.

The Court reversed and remanded for a new trial because of the improper introduction of the Childers’ letter.

A third issue concerned the introduction of testimony about an out-of-court experiment the prosecutor conducted which was offered to show that the duct tape found around Larsen’s neck was consistent with having been placed over her mouth. The prosecutor had a trace analyst from the KSP lab testify as to the length of each piece of duct tape that was found around Larsen’s neck. The pieces ranged in length from four to nineteen inches. The prosecutor then had his paralegal testify that as part of an experiment with the trace analyst and the prosecutor it was determined that the circumference of her head at the point of her mouth was nineteen and one half inches. Based upon this out of court experiment, the prosecutor told the jury in closing argument that "I think it’s clear that was a gag that was on there at one time and due to the decomposition of the body and the hair and everything coming down, it got below her neck."

The Supreme Court held that the paralegal’s testimony and the prosecutor’s comments upon it during closing argument were improper because they were based on facts outside the record. Since no evidence was introduced as to the circumference of Larsen’s head, the evidence of the out of court experiment was irrelevant. The Court reversed on this issue.

The fourth issue concerned the prosecutor’s comments during closing argument that DNA extracted from two cigarettes found in Larsen’s apartment matched Meredith’s DNA. Evidence was introduced that several cigarette butts found in Larsen’s apartment were the same brand as the brand Meredith was smoking at the time of his arrest. Because there was only a very small amount of saliva on the cigarette butts, they could not be tested at the KSP crime lab, but had to be sent to an out of state lab that was able to do PCR type testing. The lab report stated that "[t]he HLA DQ alpha type 1.2, 1.3 obtained from the cigarette butt is consistent with the HLA DQ alpha type obtained from Hank W. Meredith and occurs with a frequency of 2.6% in the North American Caucasian population."

Based on this evidence, the prosecutor told the jury in closing argument that of that 2.6% of the population, .8% smokes; and "what percentage of them smoke Doral full flavor filter kings? I submit to you . . . that we’re getting that percentage of who that could have possibly been way back."

The Court held the prosecutor’s "comments lacked an adequate foundation in statistical theory and seem to have come about by virtue of the brand of cigarettes [Meredith] allegedly smoked...The calculations were completely unfounded and in error." Because the Commonwealth had a weak, circumstantial case, the Court held the error was not harmless and reversed for a new trial on this issue.

A fifth issue was that the trial court’s capital kidnapping instruction was improper because it violated principles of double jeopardy. The court instructed the jury that it could find Meredith guilty of kidnapping if it believed beyond a reasonable doubt that he restrained Larsen with the intent "to accomplish the commission of attempted rape..." However, the first degree rape charge had been dismissed at Meredith’s first trial due to the insufficiency of the evidence.

The Court, citing Davis v. Commonwealth, Ky., 561 S.W.2d 91, 95 (1978), stated "it is improper to use a crime, for which one had been acquitted, to satisfy an element of another crime. In the case at bar, [Meredith] cannot be convicted of kidnapping if the rape, for which he had previously been acquitted, is an essential element of that charge." Thus, the use of the attempted rape to satisfy the "felony" element of the kidnapping statute violated double jeopardy principles and was reversible error.

Meredith’s convictions were reversed for a new trial.

Stallard and Adams were separately indicted for first degree perjury based on testimony each had given before a Special Letcher County Grand Jury. The Grand Jury was conducting an investigation into the activities of Letcher County Commonwealth’s Attorney James Wiley Craft and possible public corruption. Stallard was a permanent part-time secretary in the Commonwealth Attorney’s office and Adams was a detective employed by the Commonwealth Attorney. The Letcher Circuit Court dismissed the charges against Stallard and Adams. The Court of Appeals affirmed the circuit court’s dismissal. The Commonwealth sought discretionary review which was granted by the Kentucky Supreme Court.

To obtain a conviction for first degree perjury, the Commonwealth must prove beyond a reasonable doubt that the accused, under oath, in an official proceeding, knowingly made a "material false statement." KRS 523.010(1) defines a "material false statement" as "any false statement, regardless of its admissibility under the rules of evidence, which could have affected the outcome of the proceeding." The circuit court’s dismissal of the indictments against Stallard and Adams specifically found that, under KRS 523.010(1), no "material false statement" which could "affect the outcome of the grand jury proceeding was made by Stallard and Adams."

The circuit court’s ruling was based on the fact that the amount of time spent by Stallard on [her] job could not be used as a proper basis for a criminal indictment since no published guidelines or definition existed as to the minimum number of hours of work required for said position.

The Kentucky Supreme Court pointed out that "[w]hether a false statement is ‘material’ in a given factual situation is a question of law . . . This Court is not inclined to establish a rigid or inflexible standard that trial courts must follow in deciding whether a ‘material false statement’ has been made. Instead, that determination should be left to the sound judgment of Kentucky’s trial court judges on a case by case basis. The Court held "that, under the facts of this particular case, the elements of first degree perjury have not been fulfilled. We do not pass on whether the elements of any other crime relating to false testimony have been fulfilled, because that issue is not before the Court."

The Court affirmed the opinion of the Court of Appeals.

This case involves an original action in the Court of Appeals in which McGinnis sought a writ of prohibition to prevent his retrial on double jeopardy grounds. The Court of Appeals denied the writ. McGinnis appealed the denial to the Kentucky Supreme Court. The action was the result of the following facts.

McGinnis was tried in the Jefferson Circuit Court for murder and was convicted of wanton murder. Not only did the jury sign the verdict form of guilty under wanton murder, it also signed the not guilty verdict forms for the lesser-included homicide offenses of first degree manslaughter, second degree manslaughter and reckless homicide. The prosecutor did not move to set aside these not guilty verdicts, nor did the trial court set them aside sua sponte. The Kentucky Supreme Court reversed McGinnis’ conviction. Upon remand to the circuit court for a new trial, McGinnis moved to dismiss the indictment, or for a judgment of acquittal, on the ground that a retrial would violate double jeopardy principles. The Commonwealth did not intend to retry McGinnis for intentional murder; rather it sought retrial on the lesser-included homicide offenses.

In support of his writ of prohibition, McGinnis argued that the jury’s signature on the not guilty verdict forms for the lesser-included homicide offenses prevented his retrial on those offenses. The circuit court and the Court of Appeals rejected McGinnis’ argument, holding the not guilty verdicts were unnecessary and unauthorized surplusage.

On appeal from the Court of Appeals’ denial of his writ of prohibition, the Kentucky Supreme Court framed the issue as "whether the jury’s conduct in completing the not guilty portions of the verdict forms of the lesser-included offenses, despite the admonition in the wanton murder instruction to ‘say no more,’ bars retrial." The Court stated that "an action by a jury which exceeds the scope of its authority is mere surplusage, which is not binding on the trial court." "When the jury found McGinnis guilty of wanton murder, it necessarily concluded that all of the elements of the lesser-included offenses were present.... By proceeding beyond its instructions and authority, the additional verdicts amounted to no more than mere surplusage." The Court held "the unauthorized recommendations of the jury on the lesser-included offenses to be nonbinding surplusage, which may be ignored."

The Court of Appeals’ opinion was affirmed.

Jarvis was angry at his wife and threw a knife at her during an argument. The knife blade entered her throat killing her. Jarvis was indicted for murder and possession of cocaine. The cocaine charge was dismissed, and the jury convicted Jarvis of wanton murder and sentenced him to thirty years in the penitentiary. On appeal, Jarvis raised the following issues.

First, Jarvis argued the trial court erred when it found the couple’s three and one half year old daughter, who witnessed the stabbing, competent to testify. The Kentucky Supreme Court held the trial court did not abuse its discretion in finding the child competent to testify after holding a competency hearing.

Second, Jarvis argued his daughter’s testimony was improperly bolstered by the testimony of several other prosecution witnesses. Some witnesses repeated what the child had told them, and other witnesses testified to what they had overheard the child tell someone else. The repetition of the child’s out-of court statements was hearsay. The Commonwealth argued the child’s out-of -court statements were admissible as exceptions to the hearsay rule because they were either present sense impressions or excited utterances.

The Kentucky Supreme Court held the hearsay statements were not admissible under the present sense impression exception to the hearsay rule (KRE 803(1)) because there was no evidence in the record as to the amount of time between the mother’s death and the child’s statements. Also, the child was not questioned regarding the circumstances surrounding the making of her statements, and the witnesses who testified to the statements were only questioned generally as to the circumstances surrounding the statements.

The Court also held the out-of-court statements were not admissible under the excited utterance exception to the hearsay rule. In Souder v. Commonwealth, Ky., 719 S.W.2d 730 (1986), the Court set out eight criteria that should be met for an out-of-court statement to be admissible under the excited utterance exception to the hearsay rule. In the case at bar, the Commonwealth failed to meet these criteria since it did not present evidence of the child’s emotional state at the time the statements were made; it did not establish the time period between the child’s statements and her mother’s death; and it did not establish whether the statements were made spontaneously or in response to questioning.

A third issue raised by Jarvis concerned the improper admission of character evidence through three different witnesses. One witness testified she saw bruises on Jarvis’ wife days prior to her death. However, since there was no evidence connecting this abuse to Jarvis, the Supreme Court held the evidence was irrelevant and should have been excluded under KRE 403 as being more prejudicial than probative.

Another witness testified that just prior to Jarvis’ wife’s death, she [the witness] and Jarvis were going out to buy a controlled substance. Since this evidence was not introduced to show motive, intent or malice, and was only used to paint Jarvis in a bad light, it should have been excluded under KRE 404.

A third witness testified Jarvis had made threats to cut his wife’s throat, within three to four weeks prior to her death, if she did not leave him alone. The Court held this testimony was admissible to establish malice or intent to kill. [Yet it should be noted that Jarvis was convicted of wanton, not intentional, murder].

However, the Court concluded the erroneous admission of the hearsay evidence was harmless error because when Jarvis testified he confirmed his daughter’s testimony as well as the evidence of prior abuse testified to by the two above-mentioned witnesses. As to the evidence that Jarvis was about to go purchase a controlled substance before he killed his wife, the Court held there was not a reasonable probability that said testimony contributed to Jarvis’ wanton murder conviction.

Lastly, Jarvis argued the trial court erred when it read Count Two of the Indictment to the jury during voir dire even though there was a motion pending to dismiss Count Two. When Count Two was dismissed, the trial court, at defense counsel’s request, informed the jury that the charges in Count Two had been dismissed. The Kentucky Supreme Court held the trial court’s actions were not an abuse of discretion and no error occurred.

Jarvis’ wanton murder conviction was affirmed.

Walker, a juvenile, was indicted in the Fayette Circuit Court for first degree robbery. Walker's case was transferred to circuit court pursuant to KRS 635.020.

Walker entered a guilty plea to an amended charge of criminal facilitation to commit first degree robbery, a class D. felony. Walker was sentenced to five years. The trial court then probated Walker's sentence. One of the conditions of Walker's probation was that he serve an additional six months in the Fayette County Juvenile Detention Center. Walker requested credit for the 215 days he had already served in the juvenile facility, but the trial court denied the request, holding that the six months additional incarceration was a "'tool for the court to use as a condition of probation.’"

The only issue on appeal was whether the trial court could impose the additional six month jail sentence as a condition of probation since Walker had already served more than six months awaiting sentencing.

The Court of Appeals held that Walker was entitled to credit for the time he had already served awaiting sentencing based on the interplay of KRS 533.030(6) and KRS 532.120(3).

The Court of Appeals vacated that portion of the judgment requiring Walker to serve an additional six months in the juvenile detention center as a condition of probation, without receiving credit for the time he previously served awaiting sentencing.

Logston entered a conditional guilty plea, in the Fayette Circuit Court, to one count of use of a minor under the age of sixteen in a sexual performance in violation of KRS 531.310. He was sentenced to ten years imprisonment. The charge arose from the following facts.

Logston persuaded a twelve year old girl to try on and model two bathing suits in his home. Logston secretly hid a video camera in his bedroom and taped the young girl while she was trying on the bathing suits. The videotape showed the young girl's exposed breasts, buttocks and pubic area. The videotape was found in Logston's home dubbed onto a commercially available sexually explicit adult videotape. Approximately one hundred bathing suits and negligees were found in Logston's home and he admitted having a fetish for this type of clothing.

Logston raised two issues on appeal.

First, Logston argued that "mere nudity of the minor was not 'obscene' sexual conduct." The Court of Appeals stated the issue as being "whether the videotape depicting the twelve-year old girl exposing her breasts, buttocks and pubic area while she is in the process of changing her clothes, has as its predominate appeal, when taken as a whole, a prurient interest in sexual conduct involving a minor." The Court of Appeals concluded that it did because of Logston's carefully planned manipulation of the young girl dressing and undressing in sexually appealing clothing, his surreptitiously videotaping the girl in the nude while her breasts, buttocks and pubic are were exposed and his dubbing that videotape onto a sexually explicit adult videotape.

Second, Logston argued his conduct was not prohibited by the statute. The Court of Appeals disagreed. It held the videotape depicts the victim in a manner that "the predominate appeal of the matter taken as a whole is to a prurient interest in sexual conduct involving a minor." KRS 531.310.

Logston's conviction was affirmed.

JULIE NAMKIN
Assistant Public Advocate
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
Tel: (502) 564-8006
Fax: (502) 564-7890

The Advocate, Vol. 20, No. 2  (March 1998)
 

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