Rogers v. Commonwealth

¶1Dissenting.

¶2Respectfully, I dissent.

¶3Despite acknowledgment in the majority opinion that the trial court erred when it excluded the testimony of Michelle Agee, the majority has nevertheless affirmed the conviction on grounds that exclusion of the testimony was harmless error. For the following reasons, I believe the majority is mistaken.

¶4As shown in the majority opinion, Appellant was acquitted of the murder of Irvin, but was convicted of manslaughter for the shooting of Taylor. Appellant was also convicted of three counts of second degree wanton endangerment pertaining to three persons in a car that was struck by shotgun pellets.

¶5Appellant claims that the trial court erred by excluding the testimony of Michelle Agee. The underlying facts leading to this claim of error are as follows. In its case in chief, the prosecution called Jennifer Baker as a witness and questioned her about a conversation she had had with Paul Rogers and Michelle Agee. During cross examination of Baker, defense counsel asked if, during that conversation, she *561had made a statement that Taylor and Irvin, in another conversation, had discussed “taking care of the Rogers boys.” Baker denied having made such a statement. Defense counsel later called Agee as a witness, intending to elicit through her testimony that Baker had indeed told her that Taylor and Irvin had talked about killing Appellant and Paul Rogers. The Commonwealth objected, arguing that the statement was inadmissible hearsay. Following an offer of proof through avowal, the trial court excluded the testimony based upon KRE 801.

¶6Appellant contends that the statement should have been admitted based upon several exceptions to the hearsay rule. He first points out that the statement was an example of hearsay within hearsay, or double hearsay, which is admissible if each part of the combined statement conforms to an exception to the hearsay rule.1 Appellant maintains that Agee’s statement constituted admissible double hearsay because each statement within it fell under an exception to the hearsay rule. The statement Agee attributed to Baker, Appellant argues, was a prior inconsistent statement of a witness and thus admissible pursuant to KRE 801A(a)(l). Taylor’s and Irvin’s remarks about killing the Rogers brothers, Appellant further argues, were admissible under the KRE 803(3) exception for statements regarding “then existing mental, emotional, or physical conditions (such as intent, plan, motive, design, mental feeling, pain, and bodily health).”

¶7In response, the Commonwealth maintains that the threatening statements by Taylor and Irvin were not admissible because they were made prior to the day of the shootings, in effect, at a time too far removed from the crimes to be relevant. This argument, however, must fail, as “It is well-settled that relevancy of expressions of state of mind can exist without a concurrence in point of time between the making of the statements and the states of mind required to be proved.” 2 For example, in a murder case in which the defendant claimed self-defense, a statement made by the defendant two years prior to the murder regarding his desire to kill the victim was admitted for the inference that the same state of mind existed at a later date.3 In the case at bar, the few weeks between the day of the crimes and the time the statement at issue was made were not so significant as to obviate its relevancy. Thus, it was error for the trial court to exclude this evidence as inadmissible hearsay, as each statement within this example of double hearsay satisfies an exception to the hearsay rule.4

¶8Appellant contends that he was prejudiced by the exclusion of Agee’s testimony because it would have shown that Taylor was not an innocent third party tragically caught up in the quarrel between Irvin and the Rogers brothers, but instead was involved with Irvin in the plan to kill the Rogers brothers. Agee’s testimony would also help to explain Taylor’s threatening statement made at the Waco BP, “Show him to me. I’ll take care of him.” As there were conflicting accounts of who the initial aggressor was, the exclusion of Agee’s statement severely weakened his *562claim of self-defense with respect to Taylor.5

¶9“Under the harmless error doctrine, if upon consideration of the whole case it does not appear that there is a substantial possibility that the result would have been any different, the error will be held nonprejudicial.” 6 Clearly there is a substantial possibility that the result would have been different had Michelle Agee’s testimony been admitted. As noted above, Appellant was convicted of first degree manslaughter of Taylor but not Irvin. Agee’s testimony regarding what Baker had told her about Taylor and Irvin and their plan to “take care of the Rogers boys” would have detracted from Baker’s credibility and supported Appellant’s self defense claim especially with respect to Taylor. The majority admits that the evidence at trial supported both the Commonwealth’s and Appellant’s versions of the events and that some witnesses’ testimony was contradictory. The result might very well have been different had Agee’s testimony been admitted, aiding Appellant’s theory of the case that he was merely protecting himself because Taylor was the first aggressor. By excluding this testimony the substantial rights of Appellant were affected because he was not able to fully present his self defense claim. Agee’s testimony supplies a motive the jury could have believed for Taylor’s alleged aggression against Appellant.

¶10The majority also holds that the excluded testimony of Agee was cumulative and that the jury heard testimony of the threat made by Taylor shortly before the shootings, therefore the exclusion was not prejudicial. I disagree. A jury may believe the consistent testimony of two or three witnesses but may not believe only one witness’s testimony. Here there was testimony of one witness that Taylor made a threat aimed at Rogers. Had there been another witness testifying to the same effect on a prior occasion, it would increase the likelihood that the jury would have believed it.

¶11The majority holds that Agee’s testimony was mainly cumulative and therefore not prejudicial. If a proposition is so compelling that no reasonable person could fail to believe it, the testimony would be cumulative and its exclusion not prejudicial. However, where, as here, the proposition is uncertain, additional evidence should be permitted to support that proposition. Such additional evidence should not be regarded as cumulative and its exclusion is prejudicial.

¶12The excluded evidence, if believed by the jury, would have established that Taylor was a participant in a plan to “take care of the Rogers boys,” which I interpret to mean infliction of harm upon them. If this evidence had been admitted as it should have been, the jury could well have reached a different conclusion with respect to the reasonableness of Appellant’s belief in the need for self-protection against Taylor. My view in this regard is strengthened by the fact that Appellant was acquitted of having committed homicide against Irvin after the jury had heard evidence of his long-standing antagonism towards the Rogers brothers. It cannot be said with confidence that admission of the evidence that Taylor was a participant in the plan to harm the Rogers brothers would not have *563led to a similar acquittal. Accordingly, Appellant should have a new trial with the excluded evidence being admitted.

¶13COOPER and STUMBO, JJ., join this dissenting opinion.