CRIMINAL PROCEDURE – Taped telephone conversations & “forfeiture by wrong doing” hearsay exception: Kenneth Wayne Parker v. Commonwealth of Kentucky (SC 5/21/2009)

Kenneth Wayne Parker v. Commonwealth of Kentucky
2006-SC-000102-MR May 21, 2009
Opinion by Chief Justice Minton; all sitting.

Kenneth Parker—the alleged leader of Louisville’s Victory Park Crips gang—was sentenced to two life terms after being convicted on two counts of murder and nine other felony offenses. On appeal, he raised a host of alleged errors.

Parker argued, inter alia, that taped telephone conversations between he and one of the persons he was charged with murdering were inadmissible under Crawford since they were testimonial in nature and he had not been afforded a prior opportunity for crossexamination. The prosecution argued that the “forfeiture-bywrongdoing” hearsay exception in KRE 804(b)(5) was applicable. That rule states that the hearsay rule does not apply where the party to whom the statement is offered against has engaged in wrongdoing to procure the unavailability of the declarant as a witness. The Court cited the recent U.S. Supreme Court decision in Giles which limits the “forfeiture-by-wrongdoing” exception to instances where the defendant engaged in wrongdoing designed to prevent the witness from testifying. To satisfy Giles, the Kentucky Supreme Court adopted the following procedure: at the evidentiary hearing, “the proponent of the hearsay must first introduce evidence establishing good reason to believe that the defendant intentionally procured the absence of the declarant, then the burden of going forward shifts to the party opposing introduction of the hearsay to offer credible evidence to the contrary.” Applying this analysis, the Court determined that the taped conversations did not violate the Confrontation Clause under Crawford and Giles.

The Court reversed Parker’s conviction on the charge of criminal syndication. The Court held that under KRS 506.120(3), the offense requires collaboration of five or more persons in illegal conduct on a continuing basis. The Court noted that the 4 prosecution failed to cite in its appellate brief any evidence in the record showing it presented proof at trial that Parker and four others collaborated to traffic in narcotics on a continuing basis, forcing the Court to conclude the trial court erred by failing to grant Parker’s motion for a directed verdict on the criminal syndication charge. The Court rejected Parker’s remaining evidentiary issues and claims of prosecutorial misconduct. Justice Venters concurred in result only, disagreeing with the majority’s conclusion that an indictment is sufficiently specific as long as it “names the offense.” He contended that the indictment must also contain a statement of the essential facts constituting the offense.

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