TED JOSEPH DAVIDSON v. COMMONWEALTH OF KENTUCKY
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RENDERED:
February 5, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-001799-MR
TED JOSEPH DAVIDSON
v.
APPELLANT
APPEAL FROM PIKE CIRCUIT COURT
HONORABLE EDDY COLEMAN, JUDGE
ACTION NO. 94-CR-00139
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
* * * * * * * * * *
BEFORE:
BUCKINGHAM, JOHNSON, and KNOX, Judges.
BUCKINGHAM, JUDGE.
Ted Joseph Davidson (Davidson) appeals from a
judgment of the Pike Circuit Court wherein he was convicted and
sentenced to nineteen years of imprisonment after a jury trial
for the offenses of third-degree rape and being a first-degree
persistent felony offender.
We affirm.
On April 21, 1994, Davidson drove M.N., a fourteenyear-old girl from Bulan, Kentucky, to Virginia, where he
attempted to marry her but was unable to obtain a marriage
license due to her young age.
Davidson and M.N. then returned to
Kentucky and rented a motel room in Pikeville, where they engaged
in sexual intercourse.
Following telephone contact with M.N.’s
angry father, Davidson and M.N. went to Tennessee where they
stayed for several days before they were located by authorities.
Davidson was arrested in May 1994 and indicted in Pike
County in June 1994 for two counts of unlawful transaction with a
minor and one count of being a first-degree persistent felony
offender.1
Following his pretrial release, Davidson was
arraigned in August 1994 and ordered to appear at trial on
February 14, 1995.
Although a condition of his release was that
he have no contact with M.N., Davidson concedes that he violated
this condition by taking M.N. to Oklahoma in October 1994.
After
the sureties on Davidson’s bond located him in Oklahoma, he was
extradited back to Kentucky.
The trial court revoked Davidson’s bond after he failed
to appear at his bond revocation hearing and issued an arrest
warrant charging Davidson with bail jumping.
In January 1995,
Davidson was indicted in Perry County for custodial interference
as a result of his taking M.N. to Oklahoma.
Furthermore, a Perry
County Grand Jury later indicted Davidson for promoting
contraband in the local jail in an August 1995 incident.
Davidson pled guilty to the Perry County charges in December 1995
and was sentenced to two concurrent one-year terms of
imprisonment.
In October 1996, Davidson filed a pro se motion for a
speedy trial on the rape charges.
In March 1997, his counsel
requested a competency hearing and a stay of the proceedings
1
The unlawful transaction charges were later amended to
charges of third-degree rape.
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until the competency evaluation was complete.
Davidson filed a
pro se motion to dismiss his indictment for lack of a speedy
trial in April 1997, which was denied by the trial court.
After
the trial court received the competency evaluation and determined
Davidson to be competent, his trial was rescheduled for May 27,
1997.
Following the trial, the jury found Davidson guilty of the
charged offenses, and he was sentenced to nineteen years in
prison.
His appeal followed.
Davidson’s first argument is that he was deprived of
his Sixth Amendment right to a speedy trial due to the almost
three-year lapse of time between his June 1994 indictment and his
May 1997 trial.
In determining whether Davidson was deprived of
his right to a speedy trial, we must consider (1) the length of
the delay, (2) the reasons for the delay, (3) Davidson’s
assertion, or lack thereof, of the right to a speedy trial, and
(4) the prejudice, if any, suffered by Davidson.
McDonald v.
Commonwealth, Ky., 569 S.W.2d 134, 136 (1978), citing Barker v.
Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972).
We
will assume that the almost three-year delay between indictment
and trial “gives rise to a need for further scrutiny.”
Preston
v. Commonwealth, Ky. App., 898 S.W.2d 504, 506 (1995) (holding
that a three-and-one-half-year delay between indictment and trial
merited further scrutiny).
Where the delay is caused in large part by the
defendant’s own actions, however, the defendant’s speedy trial
rights are not violated thereby.
App., 948 S.W.2d 569, 570 (1997).
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Tabor v. Commonwealth, Ky.
Having examined the record in
this case, we conclude that most of the delay in the instant case
arose from the actions of Davidson or his counsel, including his
absconding to Oklahoma with M.N., his criminal activity and
proceedings in Perry County, his counsel’s request for a
competency evaluation, and his numerous pro se motions.
Furthermore, Davidson has failed to identify any actual prejudice
resulting from the delay, but only speculates that M.N. might
have testified more favorably toward him if the trial had taken
place earlier.
In addition to the almost three-year delay between
indictment and trial, Davidson also draws attention to the sevenmonth lapse of time between his demand for a speedy trial and his
trial and contends that this was a violation of KRS 500.110.
KRS 500.110 provides that upon a demand for a speedy trial upon
an untried indictment by a person in custody, the trial court
must try that person within 180 days.
However, KRS 500.110 also
provides that “for good cause shown in open court, the prisoner
or his counsel being present, the court having jurisdiction of
the matter may grant any necessary or reasonable continuance.”
In the case sub judice, the trial court granted counsel
for Davidson’s request for a stay of proceeding pending an
evaluation of his competency.
Thus, the fact that the trial
occurred approximately seven months after Davidson’s demand for a
speedy trial rather than within 180 days does not constitute a
violation of his rights under KRS 500.110.
See also Wells v.
Commonwealth, Ky., 892 S.W.2d 299, 303 (1995) (holding that as
the defendant had requested continuance to obtain new counsel, he
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could not then assert that his right to a speedy trial had been
violated).
In short, we conclude that the trial court did not
err in refusing to dismiss Davidson’s indictment for lack of a
speedy trial.
Davidson’s next argument is that the trial court erred
in denying his motion for a directed verdict on the ground of
insufficient evidence that M.N. was under the age of 16 when the
incident at issue occurred and because “the evidence is
uncontradicted” that he believed M.N. to be at least sixteen
years of age “at all relevant times.”
Although the trial court
did not allow M.N.’s birth certificate to be introduced into
evidence by the Commonwealth, M.N. and both of her parents
testified that she was born on December 6, 1979, and was only
fourteen years old in April 1994.
The testimony of these three
witnesses was sufficient evidence to support the conviction,
especially since the jury had an opportunity to view M.N. and
judge her age for itself.
See Chaney v. Commonwealth, 149 Ky.
464, 149 S.W.2d 923, 924 (1912) (evidence was sufficient to
support a statutory rape conviction despite the fact that the
victim’s testimony as to age was uncorroborated); 65 Am. Jur. 2d
Rape § 58, at 794 (1972).
Concerning Davidson’s argument that there was
insufficient evidence to support his conviction due to
uncontradicted evidence of his belief that M.N. was at least
sixteen years old, we note that Kentucky does recognize mistake
as to the victim’s age as a defense to a charge of statutory
rape.
See KRS 510.030.
However, a mistake of fact must be
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reasonable to relieve the defendant of liability when the
elements of the crime are otherwise met.
Ky. App., 904 S.W.2d 239, 242 (1994).
Cheser v. Commonwealth,
Viewing the evidence as a
whole, we conclude that the jury could reasonably have determined
that Davidson did not, in fact, believe M.N. to be sixteen at the
time or that any mistaken belief as to her age was not
reasonable.
M.N. testified that she told Davidson she was only
fourteen years old, and Davidson himself testified that M.N.
showed him her birth certificate which indicated that she was
born on December 6, 1979.
Under the standard for directed
verdicts set forth in Commonwealth v. Benham, Ky., 816 S.W.2d
186, 187 (1991), we hold that the trial court did not err and
that there was sufficient evidence to support Davidson’s
convictions.
Davidson’s next argument is that the trial court erred
by failing to grant a mistrial at four different times during the
trial.
A mistrial should be granted only where there is a
“manifest necessity for such action.”
Ky., 780 S.W.2d 619, 621 (1989).
Turpin v. Commonwealth,
The issue to be resolved in
deciding whether to grant a mistrial is “whether the impropriety
would likely influence the jury.”
849 S.W.2d 525, 547 (1993).
Sharp v. Commonwealth, Ky.,
Whether to declare a mistrial is
within the trial court’s sound discretion; however, that
discretion is not unlimited.
Id.
Davidson contends that a mistrial should have been
granted due to M.N.’s testimony on direct examination that she
did not scream or run away from Davidson because he had
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threatened her family and said he would kill her parents.
Davidson had requested discovery of any alleged statements made
by him, but this statement was not provided.
According to the
prosecutor’s statements at a bench conference, however, this
testimony came as a surprise to the Commonwealth as well as to
the defendant.
The trial court denied Davidson’s request for a
mistrial when the statement was introduced, but sustained
Davidson’s objection and admonished the jury to disregard the
statement.
“It is ordinarily presumed that an admonition
controls the jury and removes the prejudice which brought about
the admonition.”
204 (1993).
Clay v. Commonwealth, Ky. App., 867 S.W.2d 200,
We conclude that the admonition was sufficient.
Davidson’s second argument concerning his request for a
mistrial is that the trial court erred due to an argument between
the bailiff and a deputy sheriff concerning who would guard
Davidson during the trial which he alleges the jury could have
overheard.
The trial court conducted a hearing during which the
attorney who witnessed the dispute, the deputy jailer, and the
bailiff testified.
The attorney testified that he overheard the
dispute while he was in the courtroom and that the dispute
occurred just outside an open door to the courtroom next to the
jury box.
Neither party requested that the jurors be
interviewed, and the trial court denied the motion for a mistrial
finding that Davidson failed to show that the jurors overheard
the dispute.
As Davidson fails to cite any evidence to indicate
that the trial court’s finding was incorrect, we find no error.
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Davidson next asserts that a mistrial should have been
granted due to the prosecutor’s attempted introduction of M.N.’s
birth certificate into evidence after the trial court had
previously granted Davidson’s motion in limine to exclude it.
While Davidson claims prosecutorial misconduct, a review of the
videotape of the hearing on the motion in limine reveals that the
prosecutor could have misunderstood the court’s ruling regarding
the admission of this evidence, as the court said it would
“sustain” the motion but that it would “let it in.”
At any rate,
the prosecutor was not allowed to admit the birth certificate
into evidence at trial, and no further mention was made of it.
Also, Davidson’s statement that the prosecutor was “waving
around” the birth certificate in front of the jury is a
mischaracterization, as the videotape shows the prosecutor merely
holding the certificate in his hand.
Even if the birth
certificate had been admitted into evidence, its effect would
have been minimal as M.N. and her parents had already testified
to her birth date.
Davidson’s final argument concerning his request for a
mistrial is that the trial court erred in denying his request
although the prosecutor made misstatements of fact or law in the
closing argument.
Davidson contends that he was prejudiced by
the prosecutor’s telling the jurors that they only had to believe
that Davidson and M.N. engaged in sexual intercourse “at some
point” during the twelve- or thirteen-day period from April 21,
1994, until they were located in Tennessee, and the prosecutor’s
argument that because Davidson must have known that M.N. was
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under age sixteen in October 1994 when he took her to Oklahoma,
he had to have believed she was under age sixteen on April 21,
1994.
The trial court clearly instructed the jury that it
would have to find that Davidson and M.N. engaged in sexual
intercourse in Pike County on or about April 21, 1994, to convict
him of third-degree rape.
Therefore, we find no error in
connection with Davidson’s first argument concerning the
prosecution’s closing statement.
The trial court further instructed the jury that it
should find Davidson not guilty if it found that he did not know
that M.N. was under sixteen years of age.
Although this mistake
of fact instruction did not specifically state that the relevant
time frame as to his belief would also be on or about April 21,
1994, this appears evident, and Davidson does not argue on appeal
that he objected to the wording of this instruction.
We conclude
that the prosecutor’s misstatements did not prejudice Davidson
and that the trial court did not err in refusing to grant a
mistrial for that reason.
The judgment of the Pike Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Susan J. Balliet
Louisville, KY
A. B. Chandler, III
Attorney General
Christopher M. Brown
Assistant Attorney General
Frankfort, KY
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