RENDERED: DECEMBER 16, 2021

TO BE PUBLISHED

Supreme Court of Kentucky

2020-SC-0080-DG

COMMONWEALTH OF KENTUCKY APPELLANT

ON REVIEW FROM COURT OF APPEALS

NO. 2017-CA- 1665

KNOX CIRCUIT COURT, HONORABLE DAVID A. TAPP, SPECIAL JUDGE

NO. 15-CR-0112-003

V.

STEVEN D. ROARK APPELLEE

OPINION OF THE COURT BY JUSTICE CONLEY

REVERSING

This case comes before the Court on appeal by the Commonwealth, the 

Appellant, from the opinion of the Court of Appeals which reversed Steven 

Roark, the Appellee’s, conviction and sentence, ordering a new trial. We 

granted discretionary review as there was a novel question whether the 

Commonwealth had the same motive and opportunity to cross-examine a

person during their guilty plea as it would have if the same person were 

subsequently a witness at a criminal trial under KRE1 804(b)(1). After oral 

argument and review of the record, however, we conclude the proposed witness’ 

unavailability is a threshold matter dispositive of the case. 

 

1 Kentucky Rules of Evidence.
2

As a result, we hold the trial court did not abuse its discretion in finding 

the witness was not unavailable pursuant to KRE 804(a)(5), reverse the Court 

of Appeals, and reinstate Roark’s conviction and sentence. 

I. Factual and Procedural Background

On February 25, 2015, Roark and Alvin Couch, along with several 

others, were arrested by Kentucky State Police in Knox County after a search of 

the trailer (wherein they were present) revealed methamphetamine, equipment 

for the manufacturing of methamphetamine, and other drug paraphernalia. 

The Commonwealth indicted all persons on manufacturing methamphetamine, 

first offense; possession of a controlled substance, first degree; controlled 

substance endangerment to a child, fourth degree; tampering with physical 

evidence; and possession of drug paraphernalia. Roark was also indicted as a 

persistent felony offender, but the charge was dropped prior to his trial. 

In early May 2017, Couch entered an open plea of guilty. During the plea 

colloquy, he made several statements to the effect that he acted alone in 

manufacturing the methamphetamine. Later that same month, Roark went to 

trial. His defense was he had no part in manufacturing the methamphetamine. 

He sought to introduce a certified video record of Couch’s plea colloquy as 

exculpatory evidence in support of this defense. The trial court, however, 

refused to admit the video as it believed Couch was available to testify in 

person.

At the time of Roark’s trial, Couch was known by both the 

Commonwealth and Roark to be located at the Leslie County Detention Center. 
3

Both Leslie and Knox counties are in Southeastern Kentucky. Though they do 

not share a contiguous border, we take notice that the Leslie County Detention 

Center, located in Hyden, is approximately 51 miles distance by public roadway

from the Knox County courthouse, located in Barbourville.

2

Roark represented to the trial court he had subpoenaed Couch to testify 

at trial and his investigator had delivered the subpoena to the Leslie County 

Detention Center. His counsel specifically stated, “My investigator took care of 

that and I’m pretty sure it was left with the defendant, but I will not—but I 

don’t want to go on record. He told me it was taken care of and I just 

assumed.” There was also some mention of a transport order that had been 

discussed between the trial judge and defense counsel prior to trial, but Roark 

concedes no transport order exists in the record. Neither is there a returned 

subpoena. The trial court found no court order existed compelling Couch’s 

attendance at trial, therefore he did not qualify as an unavailable witness 

under KRE 804(a)(5). 

Roark was convicted of manufacturing methamphetamine, possession of 

a controlled substance, tampering with physical evidence, and possession of 

drug paraphernalia. The jury recommended a ten-year sentence on the 

manufacturing methamphetamine count, with concurrent sentences of one 

year each on all other charges totaling ten years’ imprisonment. The trial court 

imposed the recommendation. Roark appealed. 

 

2 Courts will take judicial notice of the geography of the state and location of 

cities therein. Commonwealth v. Payne, 245 S.W.2d 581, 582 (Ky. 1952).
4

The Court of Appeals reversed his conviction and ordered a new trial. Its 

decision rested on three points. First, citing Dickerson v. Commonwealth, 174 

S.W.3d 451 (Ky. 2005), it stated its belief that the refusal to admit the video 

recording implicated Roark’s Due Process right to present a defense. Secondly, 

it concluded Roark’s counsel’s representation to the trial court that a subpoena 

had been delivered was sufficient to demonstrate a good faith effort had been 

made to procure Couch’s presence at trial. The court reasoned since the 

Commonwealth has a higher burden to demonstrate a witness’ unavailability 

pursuant to the Confrontation Clause, this Court’s approval of unavailability 

determinations based solely upon representations of the Commonwealth must 

perforce mean an accused defendant’s representations also are sufficient to 

determine unavailability. Additionally, the court believed the trial court’s 

demand for physical proof of a subpoena or transport order was effectively 

creating a new element under KRE 804(a)(5). Finally, under KRE 804(b)(1), the 

court ruled the Commonwealth has the same opportunity and motive to crossexamine a defendant during their guilt allocution as it would have if the same 

person was subsequently a witness in a criminal trial of another person.

We now address the merits of the appeal.

II. Standard of Review

Determinations of a witness’ availability for purposes of KRE 804(a) are 

reviewed for an abuse of discretion. Brooks v. Commonwealth, 114 S.W.3d 818, 

821 (Ky. 2003). In the civil context, though equally applicable here, we have 

noted this standard assumes the trial court is “empowered to make a 
5

decision—of its choosing—that falls within a range of permissible decisions.”

Miller v. Eldridge, 146 S.W.3d 909, 915 (Ky. 2004) (quoting Zervos v. Verizon 

New York, Inc., 252 F.3d 163, 169 (2d Cir. 2001)). Thus, only a decision which 

is “arbitrary, unreasonable, unfair, or unsupported by sound legal principles” 

will be reversed. Id. at 914.

III. Analysis

A. KRE 804(a)(5) and the Good Faith Requirement

Among the several scenarios to determine witness availability, a witness 

is unavailable if he is “absent from the hearing and the proponent of the 

statement has been unable to procure the declarant's attendance by process or 

other reasonable means.” KRE 804(a)(5). The Court of Appeals premised its 

ruling below on the belief that Roark had a lesser standard of proof to 

demonstrate unavailability than the Commonwealth. The court also believed 

the Commonwealth’s heightened burden “has not been proven to be all that 

onerous as out-of-court testimony has been admitted even without an effort to 

subpoena the witness or submit proof of true unavailability based on bare 

assurances from the Commonwealth that a witness is unavailable.” This 

statement was supported by citations to Lovett v. Commonwealth, 103 S.W.3d 

72, 83-4 (Ky. 2003), and St. Clair v. Commonwealth, 140 S.W.3d 510, 539-40 

(Ky. 2004).

The Commonwealth does indeed have a constitutional burden of proof to 

demonstrate a good faith effort pursuant to the Confrontation Clause. Barber v. 

Page, 390 U.S. 719, 724-25 (1969). But as Professor Lawson aptly notes, our 
6

rule also “intends to require a good faith effort to procure the attendance of the 

declarant at trial even when he is beyond the court’s jurisdiction.” Robert G. 

Lawson, The Kentucky Evidence Law Handbook § 8.40[6][f], at 645 (5th ed.). In 

a word, KRE 804(a)(5) embraces the Barber rule. KRE 804(a)(5) makes no 

distinction between Commonwealth and defendant, speaking only of the 

“proponent of the statement . . .” Thus, the good faith requirement is equally 

applicable to all parties, and there is no basis within the rule to find a 

heightened burden for the Commonwealth. 

In Marshall v. Commonwealth, we held “[a] trial court cannot merely rely 

on the Commonwealth's assurances of unavailability in deciding to admit 

hearsay evidence that is conditioned upon unavailability.” 60 S.W.3d 513, 519 

(Ky. 2001). Importantly, we cited to the case of Justice v. Commonwealth, 987 

S.W.2d 306, 313 (Ky. 1998), for that holding. The Justice case, however, did 

not involve the Commonwealth asserting the unavailability of a witness but 

rather the accused defendant. Id. Thus, we have consistently held KRE 

804(a)(5) requires the proponent of a witness, whether the Commonwealth or a 

defendant, to demonstrate a good faith effort to procure the witness by process 

or other reasonable means. Moreover, we have disapproved of trial courts

relying merely on the assurances of a proponent to predicate a finding of 

unavailability. As we remarked before, 

the requirement of KRE 804(a)(5) that the proponent of the 

introduction of the statement must show that he was unable to 

produce the declarant through process or other reasonable means 

is a logical safeguard against self-serving fabrication; i.e., if the 

declarant's testimony is critical to the defense [or prosecution], 
7

then it stands to reason that the defendant [or prosecutor] would 

do all he reasonably could to put the declarant before the jury.

Id. at 314. The Court of Appeals’ understanding of our holdings in Lovett and 

St. Clair to the contrary does not withstand scrutiny. 

In Lovett, the defendant had entered an Alford plea and appealed the trial 

judge’s order that an unavailable witness’ deposition be taken by video tape in 

South Dakota with both the defendant and his counsel present. Lovett, 103 

S.W.3d at 77. Thus, the issue was not whether introduction of witness 

testimony violated the Confrontation Clause. Id. “In fact, because Appellant 

entered a plea before trial, the trial judge never made a final ruling on the 

admissibility of the deposition at trial; indeed, the deposition was never taken.” 

Id. at 82. Lovett then is completely inapposite to the case at bar and its peculiar 

factual scenario suggests a limited range of application. Moreover, the issue of 

the Commonwealth’s good faith effort was not that the trial court had relied 

only upon the Commonwealth’s mere verbal assurances of unavailability, but 

the Commonwealth had not followed the Uniform Act to Secure the Attendance 

of Witnesses from Within or Without a State in Criminal Proceedings.

3 We held 

the Commonwealth had no mandatory duty to resort to that law in order to 

satisfy the good faith effort requirement. Id. at 84. Therefore, we believe the 

Court of Appeals’ reliance on Lovett is misplaced. Lovett is both factually and 

legally distinguishable. Additionally, the Court of Appeals’ interpretation of 

 

3 KRS 421.230 - 421.270.
8

Lovett’s import is directly contrary to otherwise clear statements of law on 

point. Justice, 987 S.W.2d at 314; Marshall, 60 S.W.3d at 519. 

The reliance upon St. Clair is equally misplaced. In fact, Part III(D)(4) of 

that opinion—addressing the determination whether a witness, Van Zandt, was

unavailable—divided this Court in several ways. No position advocated on that 

issue commanded a majority. The memorandum opinion’s discussion in Part 

III(D)(4), endorsed only by Justice Graves, equivocated on the issue; noting only 

that a doctor’s letter stating Van Zandt could not travel due to pregnancy 

complications was handed to the defense counsel but not to the trial judge nor 

ever submitted in the record. St. Clair, 140 S.W.3d at 540. After noting “the 

Commonwealth could have made a much cleaner record . . . [,]” Justice Graves

concluded the trial court did not abuse its discretion. Id.

Justice Cooper, however, joined by Chief Justice Lambert, concurred 

only with the result of Part III(D)(4). He preferred to “conclude that the hearsay 

evidence offered by the prosecutor in this case was sufficient to support the 

trial court's finding that Van Zandt was unavailable . . .” Id. at 574 (Cooper, J., 

concurring in part and dissenting in part). Nonetheless, Justice Cooper did 

believe the record demonstrated the defendant and trial judge were handed 

physical proof of the doctor’s letter at a hearing on the issue of Van Zandt’s 

unavailability. Id. at 573. Thus, three justices believed physical evidence 

existed to demonstrate the validity of the Commonwealth’s assertions Van 

Zandt could not travel due to pregnancy complications; therefore, she was 

properly deemed unavailable under KRE 804(a)(4). 
9

Contrary to that belief, three justices dissented from the conclusion in 

Part III(D)(4). Justice Keller, joined by Justices Johnstone and Stumbo, cited 

the Court’s decision discussed above in Marshall v. Commonwealth, thereby 

concluding “there is absolutely nothing in the record of this case to 

demonstrate Ms. Van Zandt's unavailability other than the Commonwealth's 

representation that Ms. Van Zandt's pregnancy prevented her from traveling to 

Kentucky . . .” Id. at 576 (Keller, J., concurring in part and dissenting in part). 

Thus, three justices believed no physical evidence supported the 

Commonwealth’s representations in that case. Justice Wintersheimer did not 

join any opinion but concurred in result only. Id. at 572. 

Suffice it to say, St. Clair is not binding authority concerning KRE 

804(a)(5)’s evidentiary demand to demonstrate good faith. But given our 

understanding of the good faith requirement contained in KRE 804(a)(5) as 

explained in Justice v. Commonwealth and Marshall v. Commonwealth, we now

explicitly reject Justice Cooper’s partial concurrence in St. Clair insofar as it 

holds the mere representations of a proponent are sufficient to predicate a 

determination of a witness’ unavailability. Justice Keller’s partial dissent 

advocating for the rule as laid down in Marshall, 60 S.W.3d at 519, was and is 

the correct statement of law in the Commonwealth. St. Clair, 140 S.W.3d at 

576. (Keller, J., concurring in part and dissenting in part). 

KRE 804(a)(5) imposes an equal burden on both parties to demonstrate a 

good faith attempt had been made to procure a witness’ presence at trial before 

the witness will be deemed unavailable. Generally, the trial court may not rely 
10

on mere verbal representations of the proponent to determine unavailability. 

Marshall, 60 S.W.3d at 519. Instead, the evidence demanded to prove good 

faith must be independent of a proponent’s mere verbal representations, lest 

the “self-serving fabrication” intended to be guarded against comes in through 

the backdoor. Justice, 987 S.W.2d at 314. 

B. Roark’s Failure to Demonstrate Good Faith Effort per KRE 804(a)(5)

Having clarified the rule, the Court of Appeals’ opinion cannot stand. At 

trial, the only evidence as to Couch’s unavailability offered by Roark was his 

counsel’s statement that his investigator had delivered a subpoena to the Leslie 

County Detention Center. Significantly, counsel declined to affirm the 

subpoena had been personally delivered to Couch. Despite this, the subpoena 

is not the dispositive factor. Because Couch was in the custody of the 

Commonwealth, a subpoena would have been insufficient to procure his 

presence at trial. 

It is a matter of routine practice that when a witness is in the 

Commonwealth’s custody and his presence is necessary at a hearing or trial, 

the proponent of the witness will obtain a transport order signed by the trial 

judge authorizing the witness’ release at the designated time and to the 

designated courthouse, and deliver said transport order to the relevant

custodial authority. The record contains no transport order although Roark’s 

attorney did allude to one. But mere verbal representations are not enough to 

determine the transport order existed. Justice, 987 S.W.2d at 314. 
11

Neither the Rule of Civil Procedure nor the Rules of Criminal Procedure 

speak of transport orders. Nonetheless, given their ubiquity in the day-to-day 

business of the courts, we hold transport orders fit comfortably within the 

“other reasonable means” contemplated by KRE 804(a)(5). 

C. Roark’s Due Process Right was not Harmed by Application of the 

Rules of Evidence

Finally, we address the Court of Appeals’ conclusion that application of 

the rules of evidence in this case constituted a Due Process violation per the 

Fourteenth Amendment of the Constitution. We believe that conclusion without 

merit. While we do not denigrate the holding in Dickerson v. Commonwealth, 

174 S.W.3d 451 (Ky. 2005), we do not believe it is controlling in this case. 

“[W]here constitutional rights directly affecting the ascertainment of guilt 

are implicated, the hearsay rule may not be applied mechanistically to defeat 

the ends of justice.” Chambers v. Mississippi, 410 U.S. 284, 302 (1973). But we 

have applied that rule to mean only where the rules of evidence “place an 

impossible bar” upon the proponent, obstructing his presentation of a defense, 

will the constitutional considerations overcome evidentiary niceties. Justice, 

987 S.W.2d at 313. Dickerson conforms to that condition. 

In Dickerson, the trial court refused to admit a transcript, prepared by 

the proponent, from a video recording of an unavailable witness’ prior 

testimony, which was the sole evidence the defendant could present, because it 

was not properly authenticated pursuant to CR4 30.06(1). Dickerson, 174 

 

4 Kentucky Rules of Civil Procedure.
12

S.W.3d at 470. We noted, however, that CR 30.06(1) applied to an era prior to 

the adoption of video recordings as official records for trials. Id. In short, by

applying CR 30.06(1) the trial court essentially required a non-existent court 

reporter to authenticate the proponent’s transcript which, even had the court 

reporter existed, he would not have been empowered to do—an impossible bar 

if there ever was one. Instead, the proper rule the trial court should have 

applied was KRE 901(a). Id. at 470. After identifying the correct rule, we then 

verified the proponent’s transcript satisfied the conditions of KRE 901(a). Id. at 

471. Only after ensuring the transcript conformed to the rules of evidence, did 

we determine the transcript should be admitted upon retrial if the witness was 

again unavailable. Id. Dickerson therefore does not stand for the proposition

that when a defendant’s only evidence is hearsay, he is constitutionally 

absolved from complying with the rules of evidence.

In this case, had Roark simply made copies of the returned subpoena 

and transport order he alleged existed and presented them to the trial court, 

the court would have had a proper basis to find Couch unavailable and admit 

the video recording. This is hardly an impossible bar to meet nor is it a 

mechanistic application of KRE 804(a)(5). Dickerson is inapplicable to his case.

Roark’s right to present a defense was not harmed by the trial court’s refusal to 

find Couch unavailable. 

IV. Conclusion

KRE 804(a)(5) requires a proponent of a witness demonstrate good faith 

efforts have been made to procure the witness’ presence at trial either by 
13

process or other reasonable means before the witness will be declared 

unavailable. Mere verbal representations of the proponent may not be relied 

upon by the trial court to predicate a determination of unavailability. Roark did 

not satisfy this burden as he could not produce a copy of the returned

subpoena delivered to Alvin Couch nor a transport order delivered to an 

authorized authority at the Leslie County Detention Center. Therefore, the trial 

court did not abuse its discretion in determining Alvin Couch was available for 

trial. The Court of Appeals is reversed. The conviction and sentence of Roark is 

reinstated.

All sitting. All concur. 

COUNSEL FOR APPELLANT:

Shannon Dupree

Assistant Public Advocate

Department of Public Advocacy

COUNSEL FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Robert Baldridge

Assistant Attorney General