Opinion
NO. 2017-CA-000411-MR
07-06-2018
MARCUS HASS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Kevin M. Glogower Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General William Robert Long, Jr. Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANGELA MCCORMICK BISIG, JUDGE
ACTION NO. 15-CR-002567 OPINION
AFFIRMING
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BEFORE: JONES, KRAMER, AND D. LAMBERT, JUDGES. JONES, JUDGE: Appellant, Marcus Hass, brings this appeal following his conviction in Jefferson Circuit Court of one count of sexual abuse in the first degree. Following review of the record and applicable law, we affirm.
I. BACKGROUND
On September 28, 2015, a Jefferson County Grand Jury issued an indictment charging Hass with one count of sexual abuse in the first degree. The charge arose from allegations made by K.P., an eight-year-old child. K.P. had disclosed to several individuals that on June 26, 2015, Hass had reached into her underwear and rubbed her vagina while Hass was seated next to K.P. on a couch watching a movie at K.P.'s home. Hass pleaded not guilty to the charge.
Kentucky Revised Statutes (KRS) 510.110(1)(b)(ii).
Following completion of discovery, Hass made numerous pretrial motions. As is relevant to this appeal, Hass moved to exclude the testimony of K.P.'s aunt, T.P., and the testimony of Kim Cook, a forensic interviewer who had interviewed K.P. about her allegations against Hass. Hass contended that the only knowledge T.P. or Cook had about the incident came from statements made to them by K.P. and that, accordingly, any testimony given by T.P. or Cook would be hearsay and would serve no purpose but to improperly bolster K.P.'s testimony.
Additionally, Hass moved to exclude two recorded phone calls, and any testimony concerning those phone calls, from being introduced into evidence. The first recording was of a phone call between Hass and Jace Hardesty, Hass's friend and K.P.'s step-brother (the "Controlled Call"). In the Controlled Call, Hardesty informs Hass of K.P.'s allegations and questions Hass about whether those allegations are true. In response, Hass admits to Hardesty that he rubbed K.P.'s leg and asked her if it felt good, but he denies touching K.P.'s vagina. Hass argued that all questions posed to him by Hardesty were based on hearsay and must be excluded. Because he believed that Hardesty's questions could not be admitted, Hass contended that his responses to those questions must also be excluded, as they would be highly prejudicial to him without the proper context. The second phone call was between Hass and the lead detective on the case, Detective Bramer (hereafter, the "Bramer Call"). In the Bramer Call, Hass denies any wrongdoing and denies that he told Hardesty that he had rubbed K.P.'s leg. Hass contended that this call was wholly irrelevant and must be excluded.
The trial court entered an order on Hass's pretrial motions on September 13, 2016. In that order, the trial court announced that it would wait until trial to rule on testimony given by T.P. to see if T.P.'s testimony was properly given to rebut any attacks against K.P.'s credibility and the circumstances of K.P.'s disclosures. As to Cook, the trial court granted Hass's motion to the extent that Cook could not testify as to her opinion regarding the veracity of K.P.'s testimony; however, the trial court found that Cook could testify about the timing of her interview with K.P. and about the fact that K.P. had made a disclosure to her. Additionally, the trial court found that the statements made by Hass during the two phone calls were admissible at trial under KRE 801A(b) and KRE 804(b)(3) and that the questions posed to Hass during those conversations could be admitted to give context to Hass's responses.
Kentucky Rules of Evidence.
A jury trial was scheduled to begin on September 20, 2016. The Commonwealth had planned to call Hardesty as a witness at trial and had properly served Hardesty in the state of Kentucky. Subsequent to obtaining that service, the Commonwealth discovered that Hardesty had moved to Arizona where he was now being held in a county jail. The Commonwealth attempted to serve Hardesty in Arizona, and Hardesty was brought before a judge to determine the validity of the out-of-state service. At that hearing, Hardesty waived service and confirmed that he would be present to testify on behalf of the Commonwealth. Despite the fact that the Commonwealth arranged for transportation for Hardesty, he was not present on the date trial was set to begin.
Upon learning that Hardesty would not be testifying at trial, Hass again moved to exclude the recording of the Controlled Call. Hass argued that introducing the Controlled Call in Hardesty's absence would violate the Confrontation Clause of the Sixth Amendment to the United States Constitution. Additionally, Hass argued that Hardesty was the only witness who could authenticate the recording and who could confirm that Hardesty had consented to having the conversation recorded. The Commonwealth argued that there was no Confrontation Clause issue because Hardesty's statements were not testimonial in nature and that Detective Bramer could authenticate the recording. Further, the Commonwealth noted that Hardesty consents to having the conversation recorded at the beginning of the recording. The trial court agreed with the Commonwealth and concluded that the recording could be played at trial.
K.P. testified first for the Commonwealth. K.P. identified Hass in the courtroom and testified that Hass had touched her on her "private part," which she clarified was the "private part" she uses to urinate. K.P. testified that on the night of the incident she had been watching a movie at her home with Hardesty, Hass, and three of her siblings. K.P. was shown a picture of her living room and pointed to where each person had been sitting that night. K.P. testified that she had been seated to the far left of the couch, Hass had been in the middle, and K.P.'s brother, D.P., had been seated on the far right. Hardesty and K.P.'s other siblings had been seated in front of the couch. K.P. testified that towards the end of the film, Hass had put his hand under the blanket K.P. was using, reached into her pajama pants and rubbed her leg. He then reached into her underwear, rubbed her vagina, and asked her if it felt good. K.P. testified that the rubbing lasted for about a second. When it was done, Hass told K.P. not to tell anyone. K.P. stated that this made her feel "nasty," so she tricked Hass and told him that she had to use the restroom. Instead, she went upstairs and told T.P. what Hass had done. K.P. estimated that she had been upstairs talking with T.P. for about a minute. She testified that when she came downstairs with T.P. the television was blank, and that Hass had left the house. She and T.P. had then talked with K.P.'s grandmother and then they had all gone to the hospital.
D.P. testified next for the Commonwealth. D.P. confirmed that he had been sitting on the couch with Hass and K.P. watching a movie on the night of the incident. He testified that K.P. and Hass had both been using blankets - first using separate blankets and then sharing one. D.P. stated that he had watched the entire movie and then had left the room to let his cat up from the basement. While he was doing this, D.P. had seen Hass go into the bathroom, which is adjacent to the basement door. D.P. testified that Hass had left the bathroom door open and washed his hands, but he did not use the toilet. When he was finished in the bathroom, Hass had left the house. On cross-examination, D.P. testified that they had had no issues with the water service in the house that summer. D.P. stated that he did not remember K.P. leaving the room after they had watched the first movie, but he thought that they had watched a second movie and that K.P. got up and went upstairs when it was over. He stated that shortly after K.P. went upstairs he heard T.P. coming down the stairs screaming.
Next, T.P. testified. T.P. confirmed that they were having movie night when the incident occurred. T.P. testified that she had gone upstairs to take K.P.'s younger sister to bed and had stayed upstairs watching television with her. T.P. stated that K.P. had appeared to be very nervous when she came upstairs and made the disclosure. She testified that after K.P. made the disclosure to her, K.P. went back downstairs and then came immediately back up the stairs. When T.P. went downstairs, the other children were watching a second movie and Hass was gone. T.P. testified that she woke up her mother, K.P.'s grandmother, when she got downstairs and had K.P. repeat what she had disclosed. T.P. then called a friend to drive them to the hospital and called her sister to come and watch the other children while they were gone. T.P. testified that the police were not contacted until the group arrived at the hospital. On cross examination, T.P. testified that their basement had flooded that summer and that they had turned the main water valve off. She stated that during this time, if someone wanted to use the restroom they had to first go to the basement and turn the water back on. T.P. testified that she was unsure of the exact dates that the water had been off, but that she was sure the water had been working fine on the night in question.
Cook testified next. Cook stated that she is employed as a forensic interviewer at Kosair Charities Child Advocacy Center. As part of her job, Cook interviews children who have been referred to her by either the police department or Child Protective Services because there have been allegations of physical or sexual abuse. Cook testified that she had interviewed K.P. in July of 2015. Cook stated that it had only been K.P. and herself in the interview room, but that Detective Bramer had been able to watch the interview in a separate room via closed circuit television. Cook testified that the interview was recorded, but that only Detective Bramer, the Commonwealth, and Hass's counsel had been provided with copies. Cook testified that she did not discuss any information gleaned from the interview with anyone in K.P.'s family.
Detective Bramer testified last for the Commonwealth. Detective Bramer testified that he had conducted the Controlled Call on July 2, 2015. Detective Bramer explained the mechanics of recording the call and testified that he had been present during the entire call. Detective Bramer testified that he had instructed Hardesty to turn the volume on his phone all the way up so that Detective Bramer was able to hear the entire conversation as it was taking place. Detective Bramer testified that the Controlled Call was the first time that he had heard Hass's voice. He stated that when he later called Hass on his own, he recognized the voice on the phone as being the same voice he heard during the Controlled Call. Over multiple objections by Hass, the trial court allowed the Commonwealth to play the Controlled Call for the jury.
During the Controlled Call, Hardesty tells Hass that K.P. informed him that Hass had put his hand under her panties, asked her if it felt good, and told her not to tell anybody. Hass states that he was rubbing K.P.'s leg, but that it had not been in a sexual way. Hass states that if he touched K.P.'s vagina it was by accident. When Hardesty asks Hass why he would be rubbing K.P.'s leg, Hass states that that is what he does to his nieces and will ask them if it feels good. Hass again clarifies that this touching is not meant in a sexual way and explains that he has rough hands, so he will ask if it feels good to make sure he is not hurting them. Hass confirmed that he had asked K.P. if it felt good when he rubbed her leg, but he maintained that he had not purposefully touched her vagina. Hass stated that he did not remember telling K.P. not to tell.
Detective Bramer then testified that the Bramer Call was made on July 21, 2015, to try to get Hass to come in for questioning. The Bramer Call was also played for the jury. During this call, Hass vehemently denies touching K.P.'s leg and denies asking her if it felt good. When Detective Bramer tells Hass that he knows that Hass told Hardesty that he rubbed K.P.'s leg and may have accidentally touched K.P.'s vagina, Hass denies telling Hardesty this and denies that he told Hardesty that he does the same with his nieces. When Detective Bramer asks Hass if he is lying to him, Hass states that he could have accidentally swiped K.P.'s leg, but that he did not touch her on purpose. Hass tells Detective Bramer that this is the first time he has heard about these allegations.
At the close of the Commonwealth's case, Hass moved for a directed verdict of not guilty. The trial court denied the motion. Hass elected not to present any evidence in his defense and renewed his motion for a directed verdict, which was again denied. Following deliberation, the jury returned a verdict finding Hass guilty of sexual abuse in the first degree. The jury recommended a sentence of five years' imprisonment.
On January 12, 2017, Hass filed a motion for a new trial or, in the alternative, for a judgment notwithstanding the verdict. Hass contended that the Commonwealth presented insufficient evidence at trial such that no reasonable jury could have found him guilty beyond a reasonable doubt. Additionally, Hass contended that the trial court precluded him from cross examining Hardesty, which violated his rights under the United States and Kentucky Constitutions and violated KRE 801, KRE 402, and KRE 403. Hass also contended that the recorded statements had not been properly authenticated, were impermissible hearsay, violated the eavesdropping statute, and violated his Fifth Amendment right to remain silent. The Commonwealth responded to Hass's motion and argued that it was untimely filed under RCr 10.06 and RCr 10.24.
Kentucky Rules of Criminal Procedure.
The trial court entered a judgment of conviction and sentence on January 31, 2017, finding Hass guilty of first-degree sexual abuse and sentencing him in accordance with the jury's recommendation. Hass's motion for a new trial or, in the alternative, judgment notwithstanding the verdict was denied by order entered February 2, 2017.
This appeal followed.
II. ANALYSIS
On appeal, Hass contends that the trial court erred by improperly permitting T.P. and Cook to testify at trial and by admitting the recorded phone calls into evidence. "Rulings upon admissibility of evidence are within the discretion of the trial judge; such rulings should not be reversed on appeal in the absence of a clear abuse of discretion." Simpson v. Commonwealth, 889 S.W.2d 781, 783 (Ky. 1994). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
A. The Testimonies of T.P. and Cook Were Properly Admitted
Hass acknowledges that neither Cook nor T.P. repeated any statements that K.P. made to them. He acknowledges that neither revealed whom K.P. identified as the perpetrator of the sexual abuse she experienced and that neither expressly stated whether she believed that K.P. was being truthful. However, because both T.P. and Cook testified that K.P. made a disclosure, Hass argues that their testimony was improperly admitted. Hass contends that the testimony of T.P. and Cook had the effect of bolstering K.P.'s testimony, as it created a presumption that K.P. made disclosures consistent with her testimony at trial. Hass argues that because he did not attack K.P.'s credibility, this testimony should have been excluded. To support his argument, Hass directs our attention to a line of cases dealing with the applicability of KRE 801A(a)(2), which is an exception to the rule against hearsay. See Dickerson v. Commonwealth, 174 S.W.3d 451 (Ky. 2005); Alford v. Commonwealth, 338 S.W.3d 240 (Ky. 2011); Hoff v. Commonwealth, 394 S.W.3d 368 (Ky. 2011). Hass recognizes that the testimonies of Cook and T.P. did not contain hearsay recitals. However, he contends that the effect of the cases he cites is to prohibit a witness from testifying to the fact that a disclosure was made, even if the witnesses do not repeat that disclosure or reveal any details about it. We disagree.
The cases Hass cites are specifically concerned with hearsay statements offered at trial to confirm another witness's testimony and whether those statements were properly admitted under an exception to the rule against hearsay. "The hearsay rules are, unsurprisingly, concerned with the admission of hearsay evidence, that is, out-of-court statements offered for the truth of the matter asserted." Edmonds v. Commonwealth, 433 S.W.3d 309, 314 (Ky. 2014) (citing KRE 801(c)). KRE 801A(a)(2) allows a testifying witness to repeat out-of-court statements made by a witness in her own testimony to rebut allegations of recent fabrication or improper motive. Thus, had Hass attacked K.P.'s credibility, the Commonwealth could have elicited testimony from T.P., Cook, or any other witness repeating corroborating statements that K.P. made to them. However, KRE 801A(a)(2) "has no effect on a witness's independent observation that corroborates the other person's testimony." Edmonds, 433 S.W.3d at 314.
The simple fact is that the testimonies of T.P. and Cook did not contain any hearsay recitals. They testified that K.P. made statements to them, but no details about those statements were given. Neither stated that the disclosures K.P. made to them were identical or similar to the testimony she gave at trial. There was no hearsay; accordingly, there was no need to rely on KRE 801A(a)(2) for this testimony to be admissible. Further, contrary to Hass's contentions, the Commonwealth did not call Cook or T.P. to testify solely for the purpose of showing that K.P. made multiple disclosures. Cook's testimony described the process of a forensic interview and discussed how that process fits into a police investigation. Her testimony was relevant to show that K.P.'s allegations were properly investigated by police. T.P. was present in the home when the alleged incident occurred. While T.P. did not witness the incident, her testimony was able to help clear up inconsistencies in the timeline of events that had arisen from the testimony of D.P. and K.P. Her testimony also revealed how K.P.'s disclosures led to a police investigation.
B. The Recordings Were Properly Admitted
Hass next contends that the trial court abused its discretion in allowing the two recorded phone calls to be introduced into evidence and published to the jury. Hass argues that the statements made by Hardesty on the Controlled Call constitute testimonial hearsay and, accordingly, that playing the Controlled Call violated Hass's Sixth Amendment right to confront a witness against him. Additionally, Hass contends that Detective Bramer could not properly authenticate either recording, making those recordings unreliable. Finally, Hass contends that there was no evidence that Hardesty consented to the Controlled Call being recorded.
i. Authentication of the Recordings
During the jury trial, the Commonwealth introduced both the Controlled Call and the Bramer Call through the testimony of Detective Bramer. Hass fervidly contested Detective Bramer's ability to do so, both in his pretrial motions and in contemporaneous motions made during Detective Bramer's testimony. Hass continues to argue that allowing Detective Bramer to identify his voice on the recording was erroneous. Hass contends that Detective Bramer completely lacked any firsthand knowledge of Hass's voice, as he has never spoken to Hass in person and was, therefore, unable to show that the speaker he identifies as Hass was, in fact, Hass.
"Authentication is a foundational requirement or condition precedent to admissibility. Before evidence may be admitted, there must be 'evidence sufficient to support a finding that the matter in question is what its proponent claims.'" Hall v. Commonwealth, 468 S.W.3d 814, 831 (Ky. 2015) (quoting KRE 901(a)). "The burden on the proponent of authentication is slight; only a prima facie showing of authenticity is required." Sanders v. Commonwealth, 301 S.W.3d 497, 501 (Ky. 2010).
KRE 901(b) provides various examples of ways in which evidence can be properly authenticated or identified. One way in which the recordings could be properly authenticated was by testimony that the voice heard on the recordings is Hass's voice. Hall, 468 S.W.3d at 832. KRE 901(b)(5) states that a voice can be properly identified at trial "if the proponent of the evidence offers the witness's 'opinion based upon hearing the voice at any time under circumstances connecting with the alleged speaker' regardless of whether the witness had previously heard the voice in question 'firsthand or through mechanical or electronic transmission or recording . . . .'" Parker v. Commonwealth, 291 S.W.3d 647, 665 (Ky. 2009) (quoting KRE 901(b)(5)).
During Detective Bramer's testimony, the Commonwealth established that, while Detective Bramer could hear Hass's voice clearly during the Controlled Call, he had never heard Hass speak before and, therefore, at the time the Controlled Call was placed, had no way of knowing that he was hearing Hass's voice besides the fact that Hardesty indicated that it was Hass's voice. When the Commonwealth moved to enter the Controlled Call into evidence after establishing only that Detective Bramer could hear the conversation, the trial court sustained Hass's objection that a proper foundation had not been laid to establish that Detective Bramer could identify the voice on the Controlled Call as belonging to Hass.
Following Hass's objection, Detective Bramer testified that he later spoke to Hass on the phone himself. Detective Bramer testified that the voice he heard when he spoke to Hass on the telephone is the same as the voice he heard when he conducted the Controlled Call. Hass objected that this was still insufficient identification, as Detective Bramer had not shown that he had independent knowledge of Hass's voice prior to conducting the Controlled Call. The trial court disagreed, stating that the question was whether the recording of the Controlled Call was reliable for the jury to hear and that because Detective Bramer could testify that he later spoke with Hass and recognized the voice to be the same, the recording was reliable.
The trial court was correct that the test for reliability is not whether Detective Bramer could identify Hass's voice at the time the Controlled Call was made. The test is whether Detective Bramer, at the time the call was being introduced, had knowledge of Hass's voice, such that he was able to verify that it was Hass's voice depicted in the recording of the controlled call. That is what makes the recording reliable for the jury to hear. It does not matter at what time Detective Bramer became familiar with Hass's voice so long as he was familiar enough with it to express an opinion on it at the time the Commonwealth sought to play the Controlled Call to the jury. Accordingly, if Detective Bramer established that he was familiar with Hass's voice from the Bramer Call, sufficient foundation was laid for Detective Bramer to identify Hass's voice in the Controlled Call.
However, there remains an issue as to whether Detective Bramer had properly established that the person with whom he spoke during the Bramer Call was, in fact, Hass. Detective Bramer testified that he had never spoken with Hass in person and that his opinion that the voice on the Controlled Call belonged to Hass was based on the fact that it was the same the voice he heard during the Bramer Call. Under KRE 901(b)(5), the fact that Detective Bramer had only heard Hass's voice via a telephone conversation does not, itself, make Detective Bramer incompetent to identify Hass's voice. However, the Commonwealth was required to establish that the person with whom Detective Bramer spoke on the telephone was Hass. Otherwise, Detective Bramer was able to identify the voices on both recordings as the same, but he was unable to show that the voice belonged to Hass.
When testifying about the Bramer Call, Detective Bramer stated that he had called Hass in an attempt to get Hass to come to the police station for an interview. Under KRE 901(b)(6), an outgoing telephone call can be authenticated "by evidence that a call was made to the number assigned at the time by the telephone company to a particular place or business if . . . circumstances, including self-identification, show the person answering the be the one called." KRE 901(b)(6) is not the exclusive means by which a telephone call can be authenticated, but is illustrative. KRE 901(b). Under KRE 901(b)(4), Hass's identity as the speaker in the recorded telephone conversations can also be authenticated based on "contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances."
The Commonwealth did not introduce any evidence demonstrating that the number called for either the Controlled Call or the Bramer Call was registered to Hass. For reasons that are unclear in the record, the beginning of the Bramer Call was not recorded by Detective Bramer. As the recording begins in the middle of the parties' conversation, there is no point on the recording where Hass identifies himself. In the recording of the Controlled Call, Detective Bramer states that he is conducting a controlled call between Hardesty and Hass and recites a cellphone number that purportedly belongs to Hass. Hass does not identify himself during that call and Hardesty does not refer to Hass by name.
On the morning that the jury trial was set to begin, Hass orally moved to exclude a portion of the Bramer Call where he declines to take a polygraph examination and the Commonwealth played the entire recording of the Bramer Call for the trial judge. The recording begins in what appears to be the middle of the parties' conversation, with Detective Bramer asking Hass: "Well, when do you get off work?" Defense counsel noted the fact that the recording of the Bramer Call did not capture the entire conversation between Hass and Bramer; however, he does not object to admission of the recording on that ground.
However, twice during the Bramer Call, Detective Bramer refers to Hass by name and Hass responds without voicing any objection. In the recording of the Controlled Call, Detective Bramer states that they are making a controlled call to Hass's cellphone and recites the telephone number. The telephone number recited by Detective Bramer is identical to the number Hass gave on his pre-trial bond form. R. 9. Both recorded conversations include references to the allegations K.P. made against Hass. While these facts are not the best way for the Commonwealth to demonstrate that Hass is the person speaking on the recordings, they do amount to sufficient circumstantial evidence for the trial court to conclude that the Commonwealth had properly authenticated the recordings. See Sanders, 301 S.W.3d at 501-02. Accordingly, we cannot find that the trial court abused its discretion in admitting the recordings into evidence.
ii. Confrontation Clause Issue
Finding that the recordings were properly authenticated, we address Hass's contention that admitting the Controlled Call into evidence violated the Confrontation Clause. The Confrontation Clause of the Sixth Amendment provides that: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]" U.S. CONST. amend. VI. "[T]his bedrock procedural guarantee applies to both federal and state prosecutions." Crawford v. Washington, 541 U.S. 36, 42, 124 S.Ct. 1354, 1359, 158 L.Ed.2d 177 (2004). The United States Supreme Court has "held that the Confrontation Clause bars the admission into evidence of testimonial hearsay 'unless [the declarant] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.'" Turner v. Commonwealth, 248 S.W.3d 543, 545 (Ky. 2008) (quoting Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 2273, 165 L.Ed.2d 224 (2006)). It is undisputed that Hardesty did not testify at trial and that Hass had no prior opportunity to cross-examine him. Whether Hardesty's recorded statements should have been excluded from evidence depends on whether they can be categorized as "testimonial hearsay."
In Turner, the Court addressed whether a confidential informant's statements contained on an audio recording of a drug transaction were testimonial hearsay barred by the Confrontation Clause. Looking to precedent from two federal Circuit Courts of Appeal, the Turner court noted that "an informant's recorded statements may well be testimonial . . . since the informant is aware that his or her statements are being recorded by government agents for the very purpose of criminal prosecution." Id. at 545 (citing United States v. Nettles, 476 F.3d 508, 517 (7th Cir. 2007); United States v. Hendricks, 395 F.3d 173 (3d Cir. 2005)). However, the Court concluded that an "informant's statements are not hearsay and thus . . . their admission does not violate [the Sixth Amendment] when they are offered not for their truth, but 'to put [the defendant]'s admissions on the tapes into context, making the admissions intelligible for the jury.'" Id. (quoting Nettles, 476 F.3d at 517).
In the present case, Hardesty posed several questions to Hass in which he repeated statements that K.P. had allegedly made to him. If Hardesty's questions had been introduced at trial for the purpose of proving the truth of K.P.'s statements, they would undoubtedly be barred under the rule against hearsay. However, as in Turner, that is not the purpose for which Hardesty's questions were introduced. Hardesty's questions were introduced as they were necessary to provide context for Hass's responses. Accordingly, the trial court did not abuse its discretion by allowing Hardesty's statements on the recording to be published to the jury.
iii. Hardesty's Consent to the Recording of the Controlled Call
For his final argument against admission of the Controlled Call, Hass argues that the Commonwealth failed to elicit any testimony suggesting that Hass had consented to having the Controlled Call recorded. Accordingly, Hass argues that recording the Controlled Call violated Kentucky's eavesdropping statutes and should have been excluded from the evidence admitted at trial. This was one of the grounds raised by Hass when he objected to introduction of the Controlled Call after learning that Hardesty was not present to testify.
KRS Chapter 526.
Because Hardesty did not testify at trial, he was unable to confirm that he did, in fact, freely consent to having his conversation recorded. However, "[i]t has long been held that the testimony of the informant himself is not necessary in order to establish his consent." Carrier v. Commonwealth, 607 S.W.2d 115, 118 (Ky. App. 1980). While Detective Bramer testified that he provided Hardesty with a recording device, he did not testify to the fact that Hardesty voluntarily consented. Hardesty's statement on the Controlled Call that he has given consent would be hearsay - the only purpose for it being offered is for proof that Hardesty did consent to being recorded. The issue of whether Hardesty had given consent, however, was raised pretrial as grounds to suppress the Controlled Call. The trial court was free to consider the hearsay statement in determining whether Hardesty had given consent and the Controlled Call could be admitted into evidence. "[T]he rules of evidence do not apply to a ruling on the admissibility of evidence." Turner v. Commonwealth, 5 S.W.3d 119, 123 (Ky. 1999) (citing KRE 104(a)).
III. CONCLUSION
In light of the foregoing, we AFFIRM the judgment of conviction and sentence of the Jefferson Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Kevin M. Glogower
Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General William Robert Long, Jr.
Assistant Attorney General
Frankfort, Kentucky