Clifford v. Commonwealth
7 S.W.3d 371, 1999 Ky. LEXIS 142, 1999 WL 1044493 (1999)
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Rule of Law:
Under Kentucky Rule of Evidence 701, a lay witness may offer an opinion as to the race of a speaker based on their voice, provided the opinion is rationally based on the witness's perception and is helpful to the determination of a fact in issue.
Facts:
- Detective William Birkenhauer and a police informant, Gary Vanover, arranged a drug 'sting' operation to purchase crack cocaine from the Appellant.
- The meeting was set for Vanover's apartment, where Birkenhauer, Vanover, and a female friend of Vanover were present.
- Appellant emerged from a bedroom and told Detective Birkenhauer he only had $75.00 worth of cocaine with him at that moment but could complete the larger order later.
- Appellant went back into the bedroom and instructed Vanover to follow him.
- Vanover then came out of the bedroom, gave a baggie of crack cocaine to Birkenhauer, and received $75.00 in return.
- During the transaction, Detective Birkenhauer wore an audio transmitter, which was monitored by another officer, Darin Smith, from a nearby apartment.
- Appellant is a black male, and the informant, Vanover, is a white male.
- At trial, the informant Vanover testified that the cocaine actually belonged to him and that Appellant was not involved in the sale.
Procedural Posture:
- Appellant was charged with trafficking in a controlled substance in the first-degree.
- Following a jury trial in the Campbell Circuit Court (the court of first instance), Appellant was convicted.
- Appellant subsequently entered a guilty plea to being a persistent felony offender in the first-degree.
- The trial court sentenced Appellant to ten years for trafficking, enhanced to twenty years for the persistent felony offender conviction.
- Appellant appealed his conviction as a matter of right to the Supreme Court of Kentucky (the highest court).
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Issue:
Does Kentucky Rule of Evidence 701 permit a lay witness, who overheard a conversation via audio surveillance, to testify that one of the voices 'sounded as if it was of a male black'?
Opinions:
Majority - Justice Cooper
Yes, Kentucky Rule of Evidence 701 permits a lay witness to testify that a voice sounded like that of a person of a particular race. Such testimony is admissible lay opinion if it is rationally based on the witness's perception and is helpful to the trier of fact. The court reasoned that this falls under the 'collective facts rule,' which allows a lay witness to use a conclusion to describe an observed phenomenon where no other feasible alternative exists to communicate the observation, similar to testifying that one 'smelled gasoline.' The court found a proper foundation was laid, as Officer Smith testified he had been a police officer for thirteen years and had spoken to black males on numerous occasions. The fact that Smith could not demonstrate 'how a black man sounds' illustrated the necessity of the collective facts rule. The statements were also deemed admissible as admissions by a party opponent, with the speaker's identity proven by circumstantial evidence, namely that Appellant was the only black male present.
Dissenting - Justice Stumbo
No, a lay witness should not be permitted to testify about a speaker's race based on their voice. Such testimony is based on preconceived ideas and stereotypes, not logic or reality, as one cannot 'hear a color.' The dissent argues that an accent may indicate many things like region or social class, but it cannot indicate skin color. The testimony was highly prejudicial, irrelevant, and should have been excluded under KRE 403, as there was no evidence that Appellant himself speaks with the accent described by the officer. The majority's reliance on cases involving national origin accents (e.g., Dominican vs. Puerto Rican) is misplaced because nationality is distinct from race.
Concurring - Justice Johnstone
Yes, the lay witness opinion testimony was properly admitted. Kentucky Rule of Evidence 701 reflects a modern trend favoring the admission of lay opinion evidence when it is rationally based on the witness's perception and is helpful to the jury. The decision of whether the testimony's probative value is outweighed by its prejudicial effect is within the trial court's discretion, and there was no abuse of discretion in this case. The dissent mischaracterizes a standard evidentiary issue as a 'needless racial diatribe.'
Analysis:
This decision establishes a precedent in Kentucky that racial identification by voice is permissible lay opinion testimony under KRE 701. It broadens the application of the 'collective facts rule' to include characteristics like race, so long as a witness can establish a foundation of familiarity. The ruling highlights the tension between admitting potentially helpful evidence and the risk of allowing testimony based on stereotypes, as forcefully argued by the dissent. Future litigation may focus on the adequacy of the foundation required for such testimony and challenge its admission under KRE 403 as being more prejudicial than probative.
