Osborne v. Commonwealth

¶1concurring.

¶2I agree with the majority that we must reverse Osborne’s convictions because the trial court allowed the Commonwealth to introduce abundant inadmissible hearsay statements when it permitted the prosecution to read Joe Reid’s entire grand jury testimony into the record. I write separately, however, because I believe the majority adopts an overly narrow construction of KRE 804(b)(3)’s exception for statements which “so far tend[ ] to subject the declarant to civil or criminal liability ... that a reasonable person in the declar-ant’s position would not have made the statement unless believing it to be true.”1 The majority’s analysis appears to suggest that only those statements which, standing alone, establish a prima facie case for a criminal offense against the declarant fall within the KRE 804(b)(3) “statements against penal interest” exception. I believe that KRE 804(b)(3) contemplates a broader exception to the hearsay rule.

¶3Reid testified before the grand jury that: (1) he was present at the Davenport residence on the night their fives were taken; (2) he waited outside the Davenport residence and observed as Osborne eliminated the Davenport’s security fights and illegally entered the home by break*246ing a window; (3) he repaired the chain on the motorbike upon which Osborne had driven them to the residence; (4) he heard gunshots and screams from inside the home; and (5) that he rode away from the scene on the motorbike with Osborne. The majority opinion emphasizes that mere presence at the scene where a crime is committed does not create liability and demonstrates that, if Reid were merely a bystander, as he claimed, he would have no liability for facilitation of the crimes.

¶4The “statements against penal interest” exception in KRE 804(b)(3), however, is not limited to “confessions” or statements which, by themselves, demonstrate criminal liability. The Kentucky Evidence Rules Study Committee’s commentary to KRE 804(b)(3) emphasizes that the rule “is widely construed to cover declarations which would have probative value against declarants in criminal prosecutions,”2 and Kentucky’s leading evidence scholar, Robert Lawson, observes that “[statements confessing to the commission of crimes are clearly against penal interests by any standard of measurement. But self-incrimination need not be so absolute in order for a statement to qualify for admission tinder the exception.”3In United States v. Thomas,4 the Fifth Circuit Court of Appeals determined that the language of FRE 804(b)(3) embraces a class of statements broader than mere confessions:

The government argues that Weeks’ statement was not against his penal interest because he did not expressly confess to the crime involved. We do not read Rule 804(b)(3) to be limited to direct confessions of guilt. Rather, by referring to statements that “tend” to subject the declarant to criminal liability, the Rule encompasses ... statements by a declarant that would have probative value in a trial against the declarant.5

¶5Many of the statements Reid made in his grand jury testimony would unquestionably have had probative value in a trial against him. While the majority correctly observes that evidence of Reid’s presence at the scene of the crime would not, by itself, establish his guilt of the crime, such an admission would be a valuable “piece of the puzzle” in a case against him. Likewise, although Reid’s statements, standing alone, might not demonstrate all of the elements necessary to convict him of a criminal offense, they build a strong foundation. A prima facie case for facilitation against Reid lacks only one element— knowingly providing means or opportunity which aids the commission of the offense6 —and the Commonwealth could establish through reasonable inferences that Reid acted as a “lookout” rather than the innocent bystander he claimed to be. If just one more ingredient is added to the pot— *247culpable mental state7 — the Commonwealth could prove complicity to murder and arson. In my opinion many of the statements Reid made during his testimony would tend to expose him to criminal liability, and I believe those statements came within the scope of KRE 804(b)(3).

¶6I concur in the result reached by the majority because the lion’s share of Reid’s grand jury testimony does not fall within KRE 804(b)(3), and I agree with the other errors identified by the majority. Accordingly, I see no reason, at this time, to determine whether other evidence sufficiently corroborated those statements or to address Osborne’s constitutional challenge to KRE 804(b)(3). I write separately merely to express my discomfort with the majority’s narrow construction of the language of the KRE 804(b)(3) “statements against penal interest” exception.

¶7GRAVES, J., joins.