Supreme Court of Kentucky Finds the State Does Not Adopt Statements of Facts in Plea Agreements

Similar to its federal counterpart, Kentucky Rule of Evidence 801(d)(2)(B) excludes from the rule against hearsay a statement offered against a part if it is

A statement of which the party has manifested an adoption or belief in its truth

Imagine, for instance, that Dan, Carl, and Ed are having a conversation, with Ed saying to Carl, “Dan just shot Vince,” and Dan responding, “He had it coming.” Under Rule 801(d)(2)(B), a court would conclude that Dan adopted Carl’s statement, meaning that it would be admissible against him at his subsequent trial for murdering Vince.

But what if multiple people are alleged to have participated in a crime? For instance, imagine that the State believes that Dan and Carl killed Vince together and reaches a plea deal with Carl that contains a statement of facts. By subsequently presenting that deal to the judge, has the State manifested an adoption or belief in the truth of Carl’s statement of facts, meaning that Dan could introduce that statement if it helps him in his subsequent murder trial? That was the question addressed by the Supreme Court of Kentucky in its recent opinion in Lewis v. Commonwealth, 475 S.W.3d 26 (Ky. 2015).

In Lewis, the State believed that Seaundre Horsley and Tawaain Lewis were responsible for the deaths of Jonte Johnson and Quinntin Knighton and injuries to Demarcus Johnson and Dejuan Johnson. Horsley entered into a plea agreement with the State that contained the following statement of facts:

I was standing in the yard in front of the apartment building at 4908 Saddlebrook Lane on September 23, 2009, around 10:00 pm at night, here in Jefferson County, Kentucky. I was armed with a loaded Assault rifle. Tawaiin “Chum/Chub” Lewis was also standing in the yard. There were individuals on the stoop/porch at that address who were facing out into the yard where I was. When some or all of the five (5) individuals sitting or standing on the stoop/porch made sudden movements, I panicked and thought someone on the stoop/porch might be armed and have the intention of firing at me. I fired my weapon in the direction of the individuals on the porch. Although I did not know who was all on the porch at the time, I am now aware that the firing of the weapon by me caused the death of Quinntin Knighton and Jonte Johnson and injury to Demarcus Johnson and Dejuan Johnson. I am also now aware that Terry Matthews was the fifth individual on the stoop/porch that was put in danger by the firing of my weapon. I left the area after the shooting.

Thereafter, Lewis proceeded to trial for intentional murder and related crimes. At that trial, Lewis sought to introduce the statement of facts “for two reasons: (1) to show that Horsley only acted wantonly, not intentionally; and (2) to limit his culpability to Horsley’s.” 

According to Lewis, the Commonwealth manifested an adoption and belief in the truth of Horsley’s statement of facts by signing the agreement, by not challenging the statement of facts when Horsley entered his plea, and by stipulating that Horsley was armed with an assault rifle and pled guilty.

The trial court disagreed, and Lewis was convicted, prompting his appeal to the Supreme Court of Kentucky, which noted that this was an issue of first impression in the Bluegrass State. As such, it looked beyond its borders and 

adopted the reasoning set forth by the Eleventh Circuit Court of Appeals in United States v. Delgado, 903 F.2d 1495 (11th Cir. 1990). In Delgado, Abdul Ajami and four others were indicted on several drug related charges, including conspiracy to distribute cocaine. Prior to trial, Ajami pled guilty to “importing certain artifacts from Ecuador by means of a false or fraudulent invoice,” in exchange for dismissal of the drug charges….The other defendants sought to introduce Ajami’s plea agreement and colloquy as an admission by the Government that Ajami was not guilty of conspiracy. …They argued that, if Ajami had not conspired with anyone, they could not have conspired with him….The district court denied the defendants’ motion and the Circuit Court affirmed….In doing so, the Court held that:

There are many factors that influence the government’s decision not to prosecute a defendant on certain charges, one of the most common being the government’s interest in obtaining the cooperation of the defendant as a witness against codefendants. Certainly, we cannot attribute the government’s decision not to prosecute to an independent determination that the defendant is not guilty. Furthermore, by holding that the government admits innocence when it dismisses charges under a plea agreement, we would effectively put an end to the use of plea agreements to obtain the assistance of defendants as witnesses against alleged co-conspirators.

The Kentucky Supremes found this logic applicable to the case before it because

As the Government did in Delgado, the Commonwealth agreed to reduce charges against one participant in a crime. The record does not disclose all of the reasons why the Commonwealth reduced the charges against Horsley. However, the trial court could not say, and we cannot say, that the Commonwealth did so because it had made an independent determination that Horsley acted wantonly rather than intentionally. Thus, in this case, the Commonwealth’s acceptance of Horsley’s plea agreement did not amount to an admission by adoption.

I don’t necessarily disagree with the logic of the court, but I also think that logic could apply to any statement a party seeks to offer under Rule 801(d)(2)(B). As an example, take the hypothetical that led this post. Facially, it appears as if Dan adopted Carl’s statement accusing Dan of killing Vince.

Or was it that Dan was afraid of Carl? Or was he trying to look tough? Or was he trying to protect someone else? 

In other words, there is always reason to doubt someone’s adoption of someone else’s statement. The question with the State’s “adoption” of a statement of facts in a plea agreement is whether there is more reason to doubt that adoption than other adoptions. And, if the answer is “yes,” what does that tell us about our entire plea bargaining system?

-CM