JOEY DEAN HERNDON v. COMMONWEALTH OF KENTUCKYAnnotate this Case
November 19, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
JOEY DEAN HERNDON
APPEAL FROM CLARK CIRCUIT COURT
HONORABLE JULIA HYLTON ADAMS, JUDGE
ACTION NO. 00-CR-00048
COMMONWEALTH OF KENTUCKY
REVERSING AND REMANDING
** ** ** ** **
McANULTY AND SCHRODER, JUDGES; MILLER, SENIOR JUDGE.1
A male teacher at a day care was targeted as a
child abuser by an inexperienced and unqualified detective.
Without any physical evidence, eyewitnesses, or corroborative
evidence, the detective went so far as to manufacture evidence
Senior Judge Miller sitting as Special Judge by assignment of the Chief
Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS
to ensure a conviction.
The teacher was convicted of one count
of first-degree sexual abuse2 (a class D felony) and four counts
of (non-sexual) third-degree criminal abuse3 (class A
The felony conviction was built on a foundation
of incompetent, unreliable, and even manufactured evidence, and,
thus, cannot stand.
The record includes a videotape of all four
misdemeanor incidents, which exonerates the appellant.
Therefore, we reverse and remand.
The Lighthouse day care4 was a child day care located
in Richmond, Kentucky, run by the United Apostolic Lighthouse
The day care was set up as a ministry of the church,
and catered to underprivileged children.
Portis (“Brother Portis”) was the church pastor, and his wife
Anatole Portis (“Sister Portis”) was the director of the day
The day care enrolled children ranging in age from
infants to school-age.
The day care provided childcare,
including meals and activities for the children, in a Christian
A high percentage of these children came from
families who were under the supervision of social services, and
unfortunately, many had prior case files for abuse and neglect.
The day care at issue is referred to in the record in several ways,
including “Lighthouse Child Care Center” and “Lighthouse Day Care Center”.
We shall refer to it as the “Lighthouse” day care.
The day care also had a van for children whose families could
not provide transportation.
The Lighthouse day care was located in a building at
1417 East Main Street, in Richmond.5
The physical layout of this
building is important for an understanding of this case.
building had two stories.
The first floor, where the day care
was located, included a large room, an infant room, a small
kitchen, and bathrooms.
in the large room.
The children played, ate, and took naps
The day care had a videotaping system which
recorded the activities in the large room, as part of the day
care’s normal operating procedure.
There was a door to a
stairway leading up to a second floor landing which had a copy
machine and a storage area.
There were two doors off the
one to Brother Portis’s office and one to an
The office and apartment were separate units, and
the office was not accessible from the apartment.
not allowed to go upstairs, unless they were being taken up to
the office for a conference with Brother Portis because of their
The Lighthouse day care was open Monday through
Friday, from 6:00 a.m. to 5:30 or 6:00 p.m.
time, part-time, and “drop-in” children.
There were full-
There were a number of
In January of 1999, the Lighthouse day care moved out of the East Main
Street building, to a new location at 219 Moberly Avenue, also in Richmond.
The Moberly Avenue location is not relevant to this case.
caregivers, teachers, and teacher’s assistants assigned to the
different age groups.
The daily routine included hand washing,
breakfast, lunch, and snacks, activities, naptime, and playtime.
Many of the children had behavior problems (including violence
and foul language).
Discipline was handled in several ways.
There were “timeouts” and “criss-cross applesauce,” which was
when a teacher would sit on the floor and hold an unruly child
until the child calmed down.
Another form of discipline was for
a misbehaving child to be taken upstairs to the office to be
lectured by the church pastor, Brother Portis.
The day care
contacted parents about serious misbehavior and parents would
sometimes be required to come to the day care for a conference
about their child’s behavior.
Also important for an understanding of this case, is
the manner in which the accused teacher, Joey Herndon, became
associated with the Lighthouse day care.
Joey graduated from
high school in 1986, and entered the University of Kentucky that
fall, majoring in electrical engineering.
After two years at
UK, Joey transferred to the computer science program at Eastern
In the spring of 1990, Joey met Jesse
Bailey on the EKU campus where Jesse was involved with the
Lighthouse church’s campus ministry.
Joey was impressed by
Jesse’s knowledge of the Bible and accepted Jesse’s invitation
to the Lighthouse church.
Thereafter, Joey, began attending the
Lighthouse church regularly, and was “born again” into the
Joey became very active in the church, and, in the
fall of 1991, Sister Portis asked Joey to work at the Lighthouse
Joey was still a student at EKU and also working at
Kroger’s, so initially he worked at the day care part-time when
his school and Kroger schedule permitted.
At first, he helped
Sister Portis with things such as tying shoes, serving food, and
cleaning up, basically whatever Sister Portis asked him to do.
Joey learned about child care from Sister Portis, and in the
spring of 1992, began working full-time at the day care.
December of 1992, Joey graduated from EKU, with a teaching
degree in computer science and math for the high school level.
Joey considered the church to be his “life,” and continued in
his job at the day care.
In 1994, Joey and Jesse moved into the
aforementioned apartment on the second floor of the East Main
In the course of his employment at the day care, Joey
performed a variety of duties, including teaching, helping with
activities and meals, and driving the van, as well as
administrative work, such as keeping track of attendance and the
Joey received annual child care training (per
state requirements) in subjects such as art, discipline, and
The state regulated free-meal program.
guidance, and also completed a one-year correspondence course in
He also moved into a supervisory role.
early 1997, Sister Portis opened a branch of the Lighthouse day
care in Lancaster, Kentucky.
In October, 1997, Joey was
certified by the state as the Richmond Lighthouse day care
Brother Portis, as pastor of the Lighthouse Church,
was Joey’s supervisor.
Detective Ellen Alexander started out as an undercover
narcotics officer for the Richmond Police Department.
formal education consists of a GED.
In 1994, she completed
basic training at the Criminal Justice Bureau of Training and
worked as a uniformed road patrol officer before becoming a
detective in January, 1999, when she was placed in charge of sex
abuse investigations for the Department.
training, she completed the “Reid Interview Interrogation
In March of 1999, she went to a sixteen-hour “child
This case began on March 19, 1999, when Detective
Alexander received a phone call from the mother of a fourteenmonth-old girl, who had recently been enrolled in the Lighthouse
The mother was upset that the day care van had been
an hour late bringing her child home on March 1.
The United States Supreme Court is very aware of, and critical of, this
method. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
was the van driver, and had explained to the mother that no one
answered when he first tried to drop off the child.
therefore took some other children home, and returned.
calling Detective Alexander, the mother had complained about the
matter to social services.
Social services had looked into the
matter, found nothing of concern, and dismissed it.
inexperienced Detective Alexander, however, took a different
Although there was no evidence that this child had
been abused by anyone, Detective Alexander, fresh from her
sixteen-hour child abuse class, concluded she had uncovered
widespread sex abuse at the day care, and that Joey, the van
driver, was the perpetrator.
Detective Alexander launched an investigation which
was flawed procedurally from the beginning.
Instead of looking
at the evidence to see if a crime was committed, she concluded
sex crimes were committed and then launched an investigation
seeking evidence (even fabricated evidence) to prove her
conclusion, disregarding all evidence to the contrary.
parents quickly became aware of her investigation.
Alexander appeared on television and was interviewed by the
local newspaper, the Richmond Register, where she urged people
who had their children in the day care from 1991 (the year Joey
was hired) to the present to contact her to see if their
children were sexually abused.
The Lexington Herald Leader
quoted Detective Alexander to say she expected more victims.
There was extensive media coverage of Joey’s arrest (by
Detective Alexander without a warrant at the beginning of the
The day care was closed.
swept through the community.
Outrage and hysteria
Upset and angry parents and
grandparents of children who had attended the day care formed a
group called the “Madison County Petitioners for Child Safety.”
The group met to discuss the investigation, and held protests at
the Madison County jail where Joey was being held, and at the
Within weeks of Joey’s arrest, the group had
collected thousands of signatures on a petition to keep the day
Amidst the hysteria, parents and children were being
interviewed for the investigation.
300 children and their parents or guardians were interviewed.
Parents were warned that their children’s misbehavior, such as
acting out or temper tantrums, could be a sign that they had
been sexually abused by Joey.
Interviews with the children
sought to elicit “disclosures” that Joey had sexually abused
them in some way.9
Many of these children were very young, or
had not even attended the Lighthouse day care for years.
Many parents, including J.B.’s, filed civil suits.
Add to the scenario, Detective Alexander’s interrogation training. She was
trained in the “Reid” interrogation method which is notorious for producing
The case against Joey Herndon was built entirely on
The entire investigation resulted in no witnesses,
no physical evidence, or corroborative evidence of sexual abuse
of any child at the Lighthouse day care.
Detective Alexander was able to secure fifteen felony
indictments for various sexual offenses involving eight boys and
To say the evidence was weak requires a leap of
faith that there was any evidence of sex abuse at all.
actually alarming to this Court that an individual could be
indicted, much less tried, on the facts and shenanigans in this
According to Detective Alexander’s notes, a mother
told her that her twenty-one-month-old son said “Dasha” (another
child) did something inappropriate at the day care.
affidavit for a search warrant, Detective Alexander substituted
“Joey” for “Dasha.”
Neither Detective Alexander nor the
examining doctor could understand the child’s speech.
felony indictment was for “Joey.”
false confessions. The Reid approach assumes something happened and the
interview is not supposed to end until a confession or disclosure is made.
Our United States Supreme Court reviewed this interrogation method in
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966),
and was so appalled that it created the Miranda warnings which are required
to be given before each interrogation of a suspect (but not witnesses). The
Supreme Court described the mechanics or methodology of a “Reid”
interrogation, which include: to display an air of confidence in knowing
what happened and appear to only be interested in confirming certain details;
dismissing and discouraging explanations to the contrary; to put the subject
in a psychological state where his story is merely an elaboration of what the
police purport to already know; interrogating steadily and without relent;
and using trickery. Miranda, 384 U.S. at 448-455, 86 S. Ct. at 1614-1618.
Another felony indictment involved a twenty-four-month
old (who had been in the day care for two months in late 1998),
whose mother remembered he had said “bubby hurt” when he was 1820 months old and recently said “mean man.”
Because of the
investigation, the mother now believed the child must have been
referring to “Joey.”
Joey was indicted.
Alexander nor the investigating doctor could get anything out of
An older child, T.G., age eight, had attended the
Lighthouse day care when he was five and six.
Alexander was not able to get any “disclosures” out of T.G., but
Cindy Maggard, a social worker working with Detective Alexander,
was able to “substantiate” sexual abuse and fingered “Joey” as
the perpetrator based on behavior for which T.G.’s family had
been investigated for before he ever attended the Lighthouse day
It gets better.
“Joey” was indicted, and at the
competency hearing, T.G. did not recognize Joey.
what Joey “did” he could only remember “watch us.”
for something bad that Joey did, T.G. could only say “I can’t
remember what granny told me.
I keep forgetting.”
T.G. was not the only child told to make a disclosure.
Another eight-year old, T.R., when questioned by her parents,
originally denied any abuse and told them she could not even
She had not attended the day care since she was
four years old, and had been out of the day care for four years,
with no concerns.
Nevertheless, Detective Alexander and Missy
Jo Wilson (another social worker) still wanted to interview T.R.
and amazingly got T.R. to “disclose” and Joey received another
count to the felony indictment.
At the June 29, 2000,
competency hearing, when asked about Joey, T.R. made no
statements involving sexual abuse.
She was asked if anyone had
told her what to say and she revealed that two ladies had come
to pick her up for court, and one lady had told her what to say
but she forgot.
At trial, T.R. was asked about the Lighthouse
day care and she did not remember going there.
through leading questions, the prosecutor did get T.R. to
“disclose” one incident - that “Joey” had “touched” her at the
Lighthouse day care.
The defense asked T.R. if anyone told her
to say that Joey had touched her and she readily admitted
someone had, but she couldn’t remember their name.
how hard the prosecutor tried after that, T.R. would not say
that the touching “really” happened.
Another eight-year-old, E.J., had an interesting
He had not been at the day care for several years when
the investigation started, and in his first interview, did not
remember Joey doing anything bad to him.10
remembered an amazing story.
Joey had attempted to touch him
E.J.’s grandmother had even worked at the Lighthouse day care for a time,
with no concerns.
“inappropriate” but he fought Joey off and ran away.
response was to start shooting at him but E.J. zig-zagged and
the bullets all missed.
Of course, Joey was indicted (without
Detective Alexander finding any bullet holes).
S.B. was not quite five years old when the
investigation started, and had attended the day care on and off.
(S.B. was off for a time because her mother had inflicted a
serious head injury upon her.
The mother was serving time for
the incident and when S.B. recovered she returned to the day
S.B. had expressed no concerns with the day care until
interviewed by Detective Alexander who racked up two more felony
However, at the competency hearing, she could not
identify Joey or remember why she did not like him.
The charges on the other children included in the
indictment were equally lacking in substance.
To say the
Commonwealth’s case was weak is an understatement.
Commonwealth stipulated that no physician had ever reported any
suspicion of sexual abuse as to any of the children included in
the indictment, as physicians are required to do by KRS 620.030
if they suspect abuse.
None of the doctors selected to examine
and interview the children for the investigation and trial found
any physical signs of sexual abuse.
No eyewitnesses were found
and there was no corroborative evidence as to any of the
allegations, save one, J.B., for whom Detective Alexander
fabricated evidence, and which resulted in the one felony
conviction in this case.
J.B.’s case started out no differently than the other
He attended the Lighthouse day care from 1994, when
he was 18 months old, until late May or early June of 1998, when
he was five years old.
He usually rode the van.
sister attended the day care as well.
The family had no
concerns of sexual abuse while J.B. was attending the day care,
or at any time leading up to Detective Alexander’s
J.B. had not attended the Lighthouse day care for
almost a year when the day care story broke in March, 1999.
March 30, 1999, Detective Alexander and social worker Cindy
Maggard interviewed J.B., who was not quite six years old.
During this interview, they got him to say that he was touched
The same day, Detective Alexander sought and executed
a search warrant on the East Main Street building.
The search included the second floor,11 which included
the storage area, Brother Portis’s office, and Joey and Jesse’s
Detective Alexander was present at the search.
would become significant to this case are three items she took
from Brother Portis’s office; a picture of a lighthouse and
The day care had been located on the first floor.
birds12 (the “eagle picture”), a wood plaque with an eagle on it
(the “eagle plaque”), and a mug with a lighthouse on it.
also picked up a child’s toy necklace, allegedly from the floor
of the apartment.
The next day, Detective Alexander interviewed J.B.
again, by herself, for the purpose of discussing the furnishings
in the “apartment.”
Following this interview, she wrote up a
Uniform Offense Report, wherein she falsely reported that J.B.
could accurately describe Joey’s apartment.
In this U.O.R, she
explained that J.B. had “advised” her that he had been in Joey’s
apartment, and that he identified the eagle picture and eagle
plaque as having been in the apartment.
Knowing full well that
the eagle picture and eagle plaque were actually found in the
office, she nevertheless went on in the report to verify these
items were, in fact, found in Joey’s apartment in the search.
Thus began the lie that J.B. could accurately describe items in
This lie, that J.B. could describe items found in
Joey’s apartment, was fed by Detective Alexander to J.B.’s
mother, as proof that J.B. must have been taken into the
apartment and abused.
The angry mother became one of the
We will refer to the picture as it was at trial, as an eagle picture. The
picture appears to be of a lighthouse, ocean, and flying birds. Detective
Alexander originally called it a picture of eagles in her search warrant
return. Joey’s roommate, Jesse Bailey, testified that Brother Portis bought
this picture from Captain D’s, and that it had always hung in Brother
leaders of the protest group.
J.B. was put in sex abuse
counseling with a social worker, and was taken to a child abuse
clinic, where he was interviewed and examined by Dr. Janice
Kregor, both of whom were told this lie.13
also fed this misinformation to the prosecutor,14 who relied on
this bogus evidence in trying the case.
Due to the publicity and hysteria surrounding the
case, the trial court granted a change of venue from Madison
County to Clark County.15
On the morning of trial, August 23,
2000, in chambers, the prosecutor revealed a last minute
The child’s toy necklace, allegedly found
in the apartment, previously was of no significance.
while preparing items for trial the past week, Detective
Alexander noticed what appeared to be African-American hairs in
the “knot” of the necklace, which was made out of rope.
Detective Alexander believed the hairs were a lead to the
necklace’s ownership, and decided to show it to “all the
The second child she showed it to was J.B., who
claimed it was his and told her that he might have lost it on
J.B.’s examination was normal, and showed no physical evidence of sexual
As evidenced by the “Commonwealth’s Response to Pretrial Order” of July 14,
2000, wherein the prosecutor states that J.B. has a good recall of items
located inside the defendant’s apartment.
The change of venue order even notes a June, 2000, Lexington Herald Leader
article which reported Joey had been threatened with harm.
J.B., however, is Caucasian.
The importance of
finding something of J.B.’s in the apartment as possible
corroborative evidence was not lost on the defense.
immediately moved for a continuance to have the hairs tested to
see if they were, in fact, African-American hairs, which would
tend to prove the necklace was not J.B.’s (exculpatory
The trial court denied the continuance and the trial
immediately commenced thereafter.
A well-prepared J.B., now seven, testified at trial.
At this time, he had been out of the day care for over two
With leading from the prosecutor, J.B. had a story to
One day at day care,16 Joey grabbed J.B. by the shirt,
dragged him upstairs into the apartment and threw him on the
There, he made J.B. touch his “pee-bird” and Joey touched
Both Joey and J.B. had their clothes on all the time.
When the prosecutor asked if he tried to get away, J.B. said
that he tried to get away but Joey pulled a knife and “tried to
As to how the standoff ended, J.B. said his mother
pulled up outside so Joey put the knife away.
The Commonwealth had no evidence to corroborate any of
Therefore, the prosecutor’s strategy was to show
that J.B. could describe items in the apartment as proof that he
No one asked, and J.B. did not say, “when” this alleged incident happened.
However, J.B. was in the day care from the time he was 18 months old, until
May or June of 1998, when he was five years old, and had been out of the day
care for almost a year before the investigation began.
was in the apartment, from which the jury could infer the abuse
The prosecutor had J.B. identify the “eagle picture”17
and “eagle plaque,”18 and asked where he saw them.
they were hanging over Joey’s bed.
The lighthouse mug19 was
added to the story as well, and J.B. identified it, and said
that it was in the apartment too, although he did not know
We know from earlier in the investigation that Detective
Alexander found these three items in Brother Portis’s office,
not Joey’s apartment.
It is unknown to this Court why she ever
fabricated finding these items in the apartment to back up
J.B. could not remember anything else about the
apartment, except for these three exhibits, all of which came
from the office.
J.B. was asked if he had ever been in the
office, and he denied that he was ever in there.
This is not
Teachers called as witnesses by both the Commonwealth and
defense, testified that J.B. was a frequent discipline problem
who had been taken up to the office to talk to Brother Portis
about his behavior.20
Commonwealth Exhibit 18.
Commonwealth Exhibit 21.
Commonwealth Exhibit 19.
J.B. was considered by his teacher as one of the worst behaved children in
her class. J.B.’s mother admitted that the day care had sent notes home to
her about J.B.’s fighting, and that she had been called to come to the day
care for a conference in the office as well.
After being reminded that he was wearing something
around his neck when Joey dragged him upstairs, J.B. said he was
wearing the rope necklace21 and immediately volunteered that “I
might have lost it up in his apartment.”
Reminded that when
Detective Alexander first showed him the necklace a few days
ago, he told her he lost it on the playground, J.B. claimed that
he had told her he could have lost it in the apartment or on the
On cross-examination, the defense tried to reconcile
J.B.’s trial testimony with the completely different story that
he had told to Dr. Janice Kregor, who had testified earlier in
Dr. Kregor had interviewed J.B. and his mother in
connection with the investigation on April 20, 1999.
had testified that, in response to her questions about what Joey
did, the story J.B. had told her was that Joey “sticks his
finger in my butt,” that it happened “about twice on the weekend
and 45 on the days,” and that one time Joey grabbed J.B.’s peter
and ran away.
When Dr. Kregor had asked if Joey made J.B. touch
him, J.B. had said “nope.”
When questioned about this
conflicting story, at first, J.B. said he couldn’t remember
seeing Dr. Kregor because that was when he was six and now he is
When the defense tried to refresh his memory by reading
him the statements he had made to Dr. Kregor, J.B. vehemently
Commonwealth Exhibit 22.
denied that he ever told Dr. Kregor those things and insisted
that they never happened and that the story he told today was
what really happened.
Detective Alexander assisted the prosecutor with the
trial, and even sat at counsel’s table for the duration of the
She was also the Commonwealth’s star witness at trial,
having opened the investigation and nursed it to trial.
trial, she attempted to mislead the jury whenever possible if it
benefited her case.
In J.B.’s case, she tried to bolster his
testimony that he was in the apartment by manipulating the
She attempted to represent the three items in J.B.’s
story, the eagle picture,22 eagle plaque,23 and lighthouse mug,24
as having been in found in Joey’s apartment.
Even when the
prosecutor initially had some question about the exact location
where she found these items, she dispelled his concerns with
statements like the office and apartment were all “one unit.”
Fortunately for the defense, other officers of the Richmond
Police Department had videotaped the search.
notified Detective Alexander that they had seen the video, and
were going to play the tape to the jury (and in fact did so)
before she finally conceded (as the tape would show) that the
Commonwealth Exhibit 18.
Commonwealth Exhibit 21.
Commonwealth Exhibit 19.
eagle picture,25 eagle plaque,26 and lighthouse mug27 were
actually recovered from Brother Portis’s office, not the
apartment, and that the office and apartment were separate.
Another deceit at trial by Detective Alexander
involved the child’s necklace which was the focus of the
pretrial hearing in chambers a few days earlier.28
hearing, the Commonwealth disclosed to the defense that it had
just learned that the necklace was J.B.’s, although Detective
Alexander first believed that hairs found in the knot of the
necklace were African-American hairs (possible exculpatory
evidence since J.B. is Caucasian).
At trial, Detective
Alexander claimed to have found the necklace on the floor of
She also testified that J.B. identified it as
his and said he might have lost it on the playground.
contrary to the representation made a few days earlier in
chambers, she refused to admit that the hairs appeared AfricanAmerican or that she ever believed that the hairs were AfricanAmerican.
Another noteworthy attempt to mislead the jury
occurred when Detective Alexander described in detail how she
found a turquoise diaper bag containing children’s clothing and
underwear in Joey’s bedroom (to suggest to the jury that Joey
must be of despicable character).29
This “smoking gun” was
dispelled by the defense when he informed Detective Alexander
that he had seen the videotape of the search warrant which
showed the bag was not found in Joey’s bedroom.
It was found in
the day care’s upstairs storage closet, and had been carried
into Joey’s bedroom by another police officer.
Detective Alexander knew this all along, defense counsel had her
read from the notes she was testifying from, which listed the
diaper bag as having been found on the “top shelf on right at
top of stairs” (the storage area).30
Through Detective Alexander, the Commonwealth also
introduced four videotape snippets which served as the basis of
four (non-sexual) misdemeanor counts.
As previously noted, the
Lighthouse day care had a videotaping system, which recorded the
goings on in the large room, as part of the day care’s normal
In her search, Detective Alexander seized
18 of these videotapes.
She watched them all, eight hours each
(or about 144 hours worth).
found on the tapes.
No evidence of sexual abuse was
However, she picked out four snippets which
Detective Alexander emphasized the fact that the diaper bag was found in
Joey’s bedroom, even going into great detail of just where she found it.
“When you walk in the bedroom, you go straight back. There’s a small closet
to your left. The diaper bag was in the very back, sitting beside the
closet. Not inside the closet, but beside the closet.”
Although the Commonwealth appeared to consider this bag a very important
piece of evidence, Detective Alexander testified that she was not able to
find out who it belonged to. At trial, when Joey was asked if he could
identify it, he simply opened the bag, and written inside was the name of
Sister Portis’s daughter.
showed Joey using the “criss-cross applesauce” hold on four
The defense rewound the tapes, and showed the
misbehavior which precipitated the hold.
Even the trial court
found there was no physical injury.31
Joey took the stand on his own behalf, testifying at
length about the day care and himself.
Most importantly, he
denied ever abusing any child, sexually or otherwise.
and even a former student testified on Joey’s behalf.
witness, called by either the Commonwealth or the defense, which
included the teachers who actually had these children in their
classes, ever saw Joey do anything sexually inappropriate with
No witness, including the teachers and day care
workers, had any corroborative evidence that J.B. was ever in
Even Joey’s roommate Jesse Bailey’s testimony
included that he never saw any children in the apartment with
The prosecutor’s closing argument reflected the
weakness of his case.
His only corroborative evidence (save the
necklace) that J.B. had been in the apartment was exposed as a
fabrication by Detective Alexander.
His alleged victim, J.B.,
gave a contradictory story to the one he told Dr. Kregor and
denied telling the first story to the doctor.
The prosecutor’s position was that the use of the hold for discipline
automatically constituted fourth-degree assault, or third-degree criminal
to comment on, out of desperation, the prosecutor attacked
Joey’s choice of the teaching profession as proof that he was a
Why else, he queried the jury, would a passing
engineering student work his way down to education, other than
as part of a plan to gain access to young children?
prosecutor also forgot to change his closing argument after the
fabrication by Detective Alexander was exposed, mistakenly
telling the jury that J.B. had given specific details of the
apartment (the picture, plaque, and mug) which proved J.B. was
telling the truth.
The prosecutor went on to embellish J.B.’s
story, dramatically asking the jury to remember how J.B. said
the necklace was “torn off” in the apartment or as he was
dragged up the stairs – neither of which J.B. ever said.
Still, Joey was convicted of one felony count of
first-degree sexual abuse (involving J.B.) and four misdemeanor
counts of third-degree criminal abuse (non-sexual).
sentenced to five years on the felony count, and twelve months
plus fines on each of the misdemeanor counts, to run
This appeal followed with a number of alleged
A. Denial of Continuance to Obtain a Witness
On appeal, Joey contends the trial court erred when it
refused to grant a continuance in order to obtain Brother Portis
as a witness.
The defense had originally planned to call
Brother Portis as a witness on Joey’s behalf.
Portis had been charged in Madison County with misdemeanor
facilitation charges related to Joey’s charges, and, therefore,
upon the advice of his attorney, would refuse to testify.
Consequently, Joey requested his trial be continued until after
Brother Portis’s trial.
At the continuance hearing, the Commonwealth Attorney
explained that the Madison County Attorney was refusing to try
Brother Portis until after Joey’s trial.
The court did not
dispute the fact that Brother Portis was an important witness
for Joey, but denied the continuance because the continuance
would still not require Brother Portis to testify.
Whether a continuance is appropriate in a particular
case depends upon the unique facts and circumstances presented.
Snodgrass v. Commonwealth, Ky., 814 S.W.2d 579 (1991), overruled
on other grounds, Lawson v. Commonwealth, Ky., 53 S.W.3d 534
We agree with the trial court that there was no
reasonable solution to the Brother Portis issue.
privilege against self-incrimination may be invoked whenever a
witness has a real and appreciable apprehension that the
information requested could be used against him in a future
Hodge v. Commonwealth, Ky., 17 S.W.3d
824, 841 n.2 (2000).
Clearly, the facilitation charges give
Brother Portis the right to claim the Fifth Amendment privilege.
Further, the trial court was without power to compel the Madison
County Attorney to try Brother Portis much less who to try
See Taylor v. Commonwealth, Ky., 63 S.W.3d 151, 158
See also Sections 27 and 28 of the Kentucky
Further, were Brother Portis tried and convicted,
he could continue to claim the privilege on appeal.
v. Commonwealth, Ky., 471 S.W.2d 716, 718 (1971).
Kentucky has no statute of limitation on felonies.
Commonwealth, Ky., 738 S.W.2d 818 (1987).
Therefore, even if
the misdemeanor charges were dismissed or Brother Portis were
tried and acquitted, he could continue to invoke the privilege
because of possible future charges.
Id.; Hodge, 17 S.W.2d at
Accordingly, a continuance would not have resolved the
Brother Portis issue, and as such, the trial court did not abuse
its discretion in denying a continuance on this ground.
Snodgrass, 814 S.W.2d 579; Rosenzweig v. Commonwealth, Ky. App.,
705 S.W.2d 956 (1986).
Denial of Continuance to Obtain Exculpatory Evidence
The next assignment of error is the trial court’s
denial of a continuance to have the hairs in the rope necklace
Complicating the matter is the fact that the Commonwealth Attorney
prosecutes felonies in circuit court while the County Attorney prosecutes
misdemeanors in district court.
At trial, the necklace33 was alleged to be J.B.’s, and
was used as evidence to corroborate his story that he was abused
in Joey’s apartment.
We agree the denial of a continuance was
The necklace was allegedly found by Detective
Alexander on the floor of Joey’s bedroom, on March 30, 1999,
during the execution of the search warrant.34
It was given no
However, the week before trial, in August, 2000,
Detective Alexander noticed what appeared to be African-American
hairs tangled in the knot of the necklace, which was made out of
Believing she had a “lead” because of the hairs, she
first showed it to an African-American girl, who denied it was
She next showed it to seven-year-old J.B., who is a
J.B. claimed it was his and told her that he
might have lost it on the playground.
At this time, J.B. had
not attended the day care for over two years.
On the morning the trial was to begin, in chambers,
the Commonwealth announced that Detective Alexander had just
discovered that the rope necklace found in Joey’s apartment
belonged to J.B., although the hairs in the knot of the necklace
did appear to be African-American. The defense moved for a
Commonwealth Exhibit 22.
Joey did not recognize this necklace. The apartment was very messy, and
was also used for day care storage. Joey and Jesse were not the first
occupants of this apartment. Additionally, in an earlier time not relevant
to this case, the apartment area had been used as a day care.
continuance to have the hairs analyzed.
The trial court denied
the continuance and the trial started immediately.35
The announcement that the necklace would be introduced
at trial as J.B.’s came as a surprise.
The necklace had
previously been given no significance in the case.
J.B. had not
even attended the day care for almost a year when the necklace
was found, and, in the year and a half leading up to the trial,
he had never mentioned owning, losing, or wearing a necklace in
any of his prior interviews associated with this case.
trial, J.B. claimed he was wearing the necklace the day he was
abused, and that he might have lost it in Joey’s apartment.
Detective Alexander testified she found it on the floor of
Joey’s bedroom, but, despite the representation made in
chambers, suddenly could not remember telling the prosecutor
that the hairs in the necklace appeared African-American.
with a persistent cross-examination, she insisted she did not
know what type of hairs they were or ever believed they were
The prosecutor also enhanced the necklace
evidence by adding to J.B.’s story in his closing, telling the
Contrary to the Commonwealth’s assertion, it is apparent, from the posttrial motions and hearing on the motion to set aside/new trial, that Joey did
timely move for a continuance, and that such was done during the conference
in chambers immediately prior to trial. Further, we dismiss the
Commonwealth’s assertion that Joey was required to tender an affidavit with
regard to what proof he believed hair testing would produce, per RCr 9.04.
Defense counsel made his motion for a continuance orally, immediately prior
to trial, at which time he gave his reasons orally that he would have put in
such an affidavit. The court accepted the oral reasons and ruled on the
motion. Accordingly, we conclude the issue was properly preserved.
jury that J.B. said his necklace was “torn off” when Joey abused
him. (J.B. said no such thing.)
All of the other evidence which supposedly
corroborated J.B.’s story of being in the apartment was exposed
at trial as a fabrication by Detective Alexander.
found in the apartment, if believed to be J.B.’s, thus became
the only direct or circumstantial evidence that in any way
corroborated J.B.’s story.
Testing the hair was critical.
Evidence of hair testing is admissible in Kentucky.
Johnson v. Commonwealth, Ky., 12 S.W.3d 258 (1999).
Kentucky Supreme Court has recognized the significance of hair
as exculpatory evidence.
In Funk v. Commonwealth, Ky., 842
S.W.2d 476, 481 (1992), the appellant alleged that the
Commonwealth had withheld exculpatory evidence in violation of
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215
In Funk, among the evidence the Commonwealth failed to
disclose in advance of trial was information that a human hair
found on the victim’s sock was from an African-American person.
Funk, 842 S.W.2d at 481-482.
This information tended to
exculpate the appellant, who was Caucasian.
Id. at 482.
In the present case, the defense was not only denied a
continuance to have the hairs in the necklace tested as
exculpatory evidence, but the investigating officer even misled
the jury by refusing to admit the hairs appeared African-
American or that she ever believed they were.
Supreme Court, in Funk, considered the value of hair as
exculpatory evidence of such an “importance and magnitude to
constitute reversible error.”
Funk, at 482.
less under the facts of this case.
Justice demands no
The necklace alleged to be
J.B.’s was the only piece of evidence the Commonwealth had which
in any way corroborated J.B.’s story of being in the apartment.
Both J.B. and Detective Alexander had told numerous untruths in
The defense was entitled to any exculpatory evidence
that showed the necklace was not J.B.’s, but just another lie.
J.B. is Caucasian.
We believe this hair evidence was
of such importance that, if the hairs in the necklace were
African-American, the jury would have believed the necklace
found in Joey’s apartment was not J.B.’s, and this would likely
have changed the outcome of the trial.
See Stump v.
Commonwealth, Ky., 747 S.W.2d 607 (1987); Funk, 842 S.W.2d at
The trial court’s denial of a continuance to have the
hairs tested was an abuse of discretion, and constitutes
We also believe it was unreasonable, particularly considering the
complexity of this trial, for the trial court to expect the defense to be
able to have the hair tested during trial. The trial court itself
acknowledged that a hair expert was difficult to find. “[T]he question
cannot be limited to what the defense is able to do despite the denial of its
continuance motion, but whether legitimate, substantial avenues of
investigation were prematurely cut off.” Eldred v. Commonwealth, Ky., 906
S.W.2d 694, 700 (1994), overruled in part on other grounds, Commonwealth v.
Barroso, Ky., 122 S.W.3d 554 (2003). The trial court’s denial of the
continuance had such an effect in the present case.
Joey contends the trial court erred when it concluded
that the children were competent to testify.
In this appeal we
need only address the competency of J.B. as his testimony is the
only child witness testimony that resulted in a felony
The trial court conducted a pre-trial competency
hearing on June 29, 2000, and ruled J.B. competent to testify.
J.B. was seven years old when he testified at trial on
August 28, 2000, at which time he had not attended the
Lighthouse day care for over two years.
Competency is an ongoing determination for a trial
Kentucky v. Stincer, 482 U.S. 730, 107 S. Ct. 2658, 96
L. Ed. 2d 631 (1987).
An appellate court may consider a trial
court’s competency determination from a review of the entire
record, including the evidence subsequently introduced at trial.
It is clear from our review of the record that J.B. failed
to meet the minimal qualifications for competency under KRE 601,
(b) Minimal qualifications. A person is
disqualified to testify as a witness if the
trial court determines that he:
(1) Lacked the capacity to perceive
accurately the matters about which he
proposes to testify;
Lacks the capacity to recollect facts;
(3) Lacks the capacity to express himself
so as to be understood, either directly or
through an interpreter; or
(4) Lacks the capacity to understand the
obligation of a witness to tell the truth.
The record in this case, in particular the evidence
introduced at trial and the testimony of J.B. at trial,
conclusively proves that J.B. could not accurately recall facts
or accurately perceive the matters about which he was called to
testify, or, in the alternative, lacked the capacity to
understand the obligation of a witness to tell the truth.
J.B.’s testimony at trial was that he was abused on the bed in
The prosecutor’s strategy was to have J.B.
describe items in Joey’s apartment as proof that he was in the
apartment, from which abuse could be inferred.
the eagle picture and eagle plaque, as hanging over Joey’s bed
in the apartment, and the lighthouse mug as having been
somewhere in the apartment.
He could not remember anything else
about or in the apartment.
The problem was that the three items
he identified were conclusively proven to have been recovered
from Brother Portis’s office, not from Joey’s bedroom, or even
from the apartment.
J.B. could not accurately recall facts or
accurately perceive the matters about which he was called to
To see if perhaps J.B. was merely confused as to where
he had seen those items, he was asked by the Commonwealth if he
was ever in the office or knew what was in there.
that he was ever in the office.
The teachers testified
As a disciplinary problem, J.B. was a visitor to the
Again, J.B. could not accurately recall facts, or, he
Dr. Kregor testified at length to a conversation she
had with J.B., wherein he told a completely different story
about what Joey supposedly did.
At trial, J.B. denied that he
ever made those statements to Dr. Kregor at all.
could not accurately recall facts, or, he was lying.
A few days before trial, J.B. identified the rope
necklace as his, and told Detective Alexander he lost it on the
Yet, at trial, he changed the story to say he might
have lost it in the apartment.
When reminded of what he told
Detective Alexander just a few days earlier, he accused
Detective Alexander of getting it wrong.
J.B.’s recall was in
error, or, he was lying.
Our Supreme Court once warned in a child abuse case
that “[t]here may be a temptation among judges to let pity for
small children who may have been victimized . . . overcome their
duty to enforce the rules of evidence”.
Ky., 849 S.W.2d 542, 546 (1993).
Sharp v. Commonwealth,
“‘The rules of evidence have
evolved carefully and painstakingly over hundreds of years as
the best system for arriving at the truth.
They bring to the
law its objectivity.
Their purpose would be subverted if courts
were permitted to disregard them at will . . . [O]beying these
rules is the best way to produce evidence of a quality likely to
produce a just result.’”
Id., quoting Fisher v. Duckworth, Ky.,
738 S.W.2d 810, 813 (1987).
Because he could not accurately recall facts or
accurately perceive the matters about which he was called to
testify, J.B. was incompetent under KRE 601(b)(1) and (2).
we did not hold that J.B. could not accurately perceive or
recall, then we would be compelled, in the alternative, to hold
him incompetent on grounds that he did not understand the
obligation of a witness to tell the truth, KRE 601(b)(4).
trial court should have reversed itself following J.B.’s trial
testimony, found him incompetent, and stricken the testimony.
Stincer, 482 U.S. 730.
J.B. was incompetent, and the trial
court’s admission of his testimony was an abuse of discretion
and constitutes reversible error.
Whitehead v. Stith, 268 Ky.
703, 709, 105 S.W.2d 834, 837 (1937).
See also, Pendleton v.
Commonwealth, Ky., 83 S.W.3d 522 (2002).
Joey next contends that the trial court erred when it
allowed Dr. Janice Kregor to repeat out-of-court statements
allegedly made by J.B. describing alleged abusive acts and
identifying Joey as the perpetrator.
The trial court admitted
the hearsay under the exception for statements made for the
purpose of medical treatment or diagnosis, KRE 803(4).
conclude the admission of this testimony constitutes reversible
Dr. Kregor is a pediatrician with a pediatric practice
at the University of Kentucky.
She also examines alleged sexual
abuse victims at UK’s Children’s Advocacy Center.
She is not a
psychologist, and does not provide psychological treatment.
rarely sees children brought to the Children’s Advocacy Center
for follow up, doing so only if they have a medical condition
such as a sexually transmitted disease.
J.B. was brought to see Dr. Kregor at the Children’s
Advocacy Center on April 20, 1999, at which time he had not
attended the Lighthouse day care for almost a year.37
She took a
medical history on J.B. from his mother and conducted a lengthy
question and answer type interview with J.B., focused on
gathering information about Joey sexually abusing him at the day
Dr. Kregor performed a complete physical exam of J.B.,
including rectal, genital, and testing for sexually transmitted
The exam was normal and showed no signs of sexual
She provided no treatment for J.B. and never saw him
Dr. Kregor was not J.B.’s regular doctor, and had never seen him before
this visit. No doctor had ever reported any suspicion of sexual abuse as to
J.B., as doctors are required to do per KRS 620.030 if they suspect abuse.
again, but did provide her report of the interview to Detective
Dr. Kregor was called as a Commonwealth’s witness at
Dr. Kregor described J.B. as a “talker” and admitted
that she believed he had been told that he was brought to see
her because “Joey did bad things.”
Over the objections of the
defense, Dr. Kregor was permitted to read the interview she
conducted with J.B., in complete, unsanitized form.38
the interview, Dr. Kregor testified that, in response to her
questions, J.B. told her about these sexual acts:
“sticks his finger in my butt,” that it happened “about twice on
the weekend and 45 on the days,” and that their clothes were on
when it happened; that Joey grabbed J.B.’s peter and “runned
away,” and that their clothes were on when this happened; and
that he saw Joey’s “peter.”
When she asked if Joey ever made J.B. touch him, J.B.
When asked if Joey ever touched J.B. with his
mouth, J.B. said “nope.”
When she asked if Joey ever made J.B.
kiss him, J.B. said “no.”
When asked if Joey made him play any
games, J.B. told her just criss-cross applesauce which he
explained was a “very bad game” where you pass around a “little
The interview was not recorded. Dr. Kregor took handwritten notes of what
J.B. said during the interview, which defense counsel noted she had “enlarged
somewhat” in creating the report from which she testified.
peter” which was a “bean baggy little thing and has hair all
The trial court found Dr. Kregor to be a “treating”
physician, and as such, ruled the hearsay admissible under KRE
803(4), the exception for statements made for purposes of
medical treatment or diagnosis.
the hearsay testimony was error.
Joey contends the admission of
We first note that much of the argument regarding the
admissibility of Dr. Kregor’s testimony revolved around whether
she was a “treating” or “examining” physician.
Since the trial
of this case, Drumm v. Commonwealth, Ky., 783 S.W.2d 380 (1990),
which retained a distinction between treating and examining
physicians in determining the admissibility of statements under
KRE 803(4), has been overruled by Garrett v. Commonwealth, Ky.,
48 S.W.3d 6 (2001).
Garrett held that KRE 803(4) does not
distinguish between statements made to treating and examining
Hence, we must analyze the testimony of Dr. Kregor
under Garrett, which requires us to simply apply the rule as
KRE 803 provides, in pertinent part:
The following are not excluded by the
hearsay rules, even though the declarant is
available as a witness:
(4) Statements for purposes of medical
treatment or diagnosis. Statements made for
purposes of medical treatment or diagnosis
and describing medical history, or past or
present symptoms, pain, or sensations, or
the inception or general character of the
cause or external source thereof insofar as
reasonably pertinent to treatment or
The hearsay at issue is Dr. Kregor’s reading of her
interview with J.B.
She was permitted to read this interview in
complete, unsanitized form, which not only repeated J.B.’s
statements alleging abuse, but identified Joey throughout as the
On an aside, but not necessary for our decision, it
appears somewhat questionable as to whether this interview, or
at least numerous statements therein which Dr. Kregor was
allowed to repeat, should qualify under KRE 803(4) on its face.
J.B. was taken to Dr. Kregor, almost a year after he left the
day care, for purposes of the criminal investigation, to look
for physical evidence of sexual abuse.
She found none.
statements did not relate to “past or present symptoms, pain, or
sensations” – he had no such complaints.
She was not providing
It would appear quite a stretch of
the hearsay exception to consider many of J.B.’s statements in
the interview as “medical history,” which included J.B.’s
answers to questions such as “did you see his peter,” “what did
it look like,” “who did you tell about Joey,” and whether Joey
In fact, she believed J.B. was already in sex abuse therapy, which she was
told by J.B.’s mother.
said anything; or that such statements were reasonably pertinent
to medical treatment or diagnosis.40
However, we do not need to make a line-by-line
analysis of J.B.’s statements, because the identity of the
perpetrator was not admissible.
KRE 803(4) requires, as a
prerequisite for admission, that a statement be “reasonably
pertinent to treatment or diagnosis.”
It is well-settled law
that, even in child abuse cases, “statements of identity are
‘seldom if ever’ pertinent to diagnosis or treatment.”
48 S.W.3d at 12, quoting United States v. Iron Shell, 633 F.2d
77, 84 (8th Cir. 1980), cert. denied, 450 U.S. 1001, 101 S. Ct.
1709, 68 L. Ed. 2d 203 (1981).
See also, Souder v.
Commonwealth, Ky., 719 S.W.2d 730, 735 (1986) (Information
important to an effective diagnosis and treatment “does not
include information provided as part of a criminal
investigation, nor does it usually include information
identifying the name of the wrongdoer because normally the name
of the wrongdoer is not essential to treatment.”)
exception, wherein a child’s statements identifying a
perpetrator were found reasonably pertinent, has been found in
cases where the doctor was providing psychological treatment and
We believe Dr. Kregor’s testimony represents the type of testimony
Professor Lawson has warned about in child abuse cases, as testing the “outer
limits” of a number of hearsay exceptions, including the one for statements
made for purposes of medical treatment or diagnosis. Robert G. Lawson, The
Kentucky Evidence Law Handbook, §8.55 at 661 (4th ed. 2003).
the abuser was a household member, under the theory that the
identity was important to treatment because the abuse would
continue if the child were left in the home.
Garrett, at 11-12.
None of these factors were present in this case.
J.B. was presented to Dr. Kregor as a sexual abuse
victim of Joey Herndon.
Dr. Kregor knew Joey’s identity from
the intake process, from the history taken by the mother, and
admitted J.B. had been told he was there because of “Joey.”
Kregor’s exam of J.B. was completely normal.
Dr. Kregor was not
providing psychological treatment, and Joey was not a household
member for which learning the identity of a perpetrator was
important to removing the child from the home.
Most telling was
Dr. Kregor’s own testimony when the prosecutor questioned her as
to whether a perpetrator’s identity was important to her.
testified that a perpetrator’s identity was only important to
her in a situation where it pertained to keeping a child safe,
and that was not an issue when a child is brought to the
Children’s Advocacy Center, as was J.B.
She explained that when
children are brought to the Center, the case has already been
reported, and she already knows the identity of the perpetrator
from the intake form.
Hence, she does not need to find out this
information to keep a child safe.41
Dr. Kregor described the type of situation where the identity of a
perpetrator would be important to her, as being if she was examining a child
in her general pediatric practice and saw signs of sexual abuse. Then she
J.B.’s identification of Joey falls squarely under the
general rule, that statements of identity are not pertinent to
diagnosis or treatment, and were inadmissible under KRE 803(4).
See Garrett, 48 S.W.3d at 11-12.
Accordingly, the trial court
erred in allowing that testimony of Dr. Kregor which identified
Joey as the perpetrator of the acts alleged by J.B.
admission of the testimony identifying Joey was reversible
Garrett also reminded us that even when hearsay is
admissible under KRE 803(4), it is still, of course, subject to
exclusion under KRE 403, which excludes otherwise relevant
evidence “if its probative value is substantially outweighed by
the danger of undue prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, or
needless presentation of cumulative evidence”.
Id. at 14.
probative value of Dr. Kregor’s testimony was extremely low.
She admitted that J.B. had been told that he was there to see
her because Joey had done bad things.
J.B. had not even
attended the day care for almost a year when she interviewed
Much of what J.B. told Dr. Kregor in the interview was
blatantly false, for example, J.B.’s claim that Joey abused him
on the weekend (the day care was closed on weekends), and that
criss-cross applesauce was a game where you passed around a
would want to try to find out from the child who did it so that she could
report it in order to keep the child safe.
“peter” (it was not).
Further, J.B. himself testified at trial
and denied that any of the things he told Dr. Kregor ever
The Commonwealth’s case was extremely weak.
Kregor’s testimony was unduly prejudicial and misleading to the
jury, and of little or no probative value.
Therefore, it should
have been excluded under KRE 403 as well.
Joey contends the trial court erred when it held the
children’s testimony was not tainted.
In light of our decision
that J.B. was not competent to testify, this argument becomes
Likewise, our Supreme Court, in Pendleton v.
Commonwealth, Ky., 83 S.W.3d 522 (2002), declined to adopt the
holding in State v. Michaels, 136 N.J. 299, 642 A.2d 1372
(1994), which set forth special procedures for taint hearings to
determine whether the interviewing techniques were so flawed as
to distort the child witness’s recollection.
The Lighthouse day care had a videotaping system as
part of its normal operating procedure.
In her March 30, 1999,
search, Detective Alexander seized 18 of the day care’s
videotapes from Brother Portis’s office.
She watched all the
tapes, or about 144 hours worth, and picked out four snippets
which showed Joey holding four different children.
Joey was originally indicted on four (non-sexual) misdemeanor
counts of fourth-degree assault, or, in the alternative, thirddegree criminal abuse.
Testimony at trial referred to the hold Joey was
using, a “basket-weave” type hold, as “criss-cross” or “crisscross applesauce.”
The testimony indicated that this is a hold
which is taught to day care workers, and was used by the other
Lighthouse teachers as well.
The hold consists of the worker
sitting on the floor cross-legged with the child in his/her lap,
with the arms and legs crossed across the child so that the
child cannot get away.
There was conflicting testimony as to
whether this type of hold should be used only when a child is a
danger to himself or others, or for discipline.
In either case,
however, the testimony indicated that it was up to the
subjective judgment of the day care worker when the hold should
The Commonwealth introduced four snippets of videotape
showing Joey using the “criss-cross applesauce” hold on four
The defense rewound the tapes and showed the jury the
behavior which precipitated the hold.
It was the prosecutor’s
opinion that the “criss-cross” hold should be used only if the
child is in imminent danger to himself or others, but that, in
his opinion, Joey was using it for discipline.
position was that the use of criss-cross for discipline would
automatically constitute either fourth-degree assault or thirddegree criminal abuse.
The trial court ruled that the evidence was
insufficient to find any physical injury and gave a directed
verdict of acquittal as to each of the four children on the
charge of fourth-degree assault.
That left the jury with the
alternative charge of third-degree criminal abuse (non-sexual).
The jury returned a verdict of guilty as to each of the four
Joey contends there was insufficient evidence to
support the verdict.
We have reviewed the tapes played to the
“On appellate review, the test of a directed verdict
is, if under the evidence as a whole, it would be clearly
unreasonable for a jury to find guilt, only then the defendant
is entitled to a directed verdict of acquittal.”
v. Benham, Ky., 816 S.W.2d 186, 187 (1991).
KRS 508.120, criminal abuse in the third degree,
states in pertinent part:
(1) A person is guilty of criminal abuse in
the third degree when he recklessly abuses
another person or permits another person of
whom he has actual custody to be abused and
Causes serious physical injury; or
(b) Places him in a situation that may
cause him serious physical injury; or
(c) Causes torture, cruel confinement or
to a person twelve (12) years of age or
less, or who is physically helpless or
In the present case, the jury was instructed as to KRS
In Cutrer v. Commonwealth, Ky. App., 697 S.W.2d 156,
158 (1985), we discussed the meaning of what constitutes “cruel”
Our courts experience no difficulty in
determining what constitutes cruel
punishment within the strictures of Section
17 [of the Kentucky Constitution] and the
Eighth Amendment. See, e.g., Workman v.
Commonwealth, Ky., 429 S.W.2d 374 (1968).
[Cruel punishment is punishment which shocks
the general conscience and violates the
principles of fundamental fairness].
Outside the criminal arena, our cases define
“cruel” as “heartless and unfeeling”.
[Citation omitted.] This is consistent with
KRS 446.080’s directive that ordinary words
in statutes shall be given their ordinary
meaning, and the dictionary definition of
“cruel” as “disposed to inflict pain or
suffering: devoid of human feeling.”
Webster’s Ninth New Collegiate Dictionary
The videos depict Joey appearing to instruct some of the
children to do something (such as to take a nap or quit running
around) but the child would continue doing what he or she
wanted, while disturbing the other children who, in some cases,
were trying to nap.
The tapes show all four occasions where
children were held with the basket-weave hold.
We saw no
evidence of being held too tight, no evidence of pain,
suffering, or even fear on the part of any of the children while
in the hold.
In fact, after being released, one child runs
after Joey and another begins doing pushups.
There was no
No hold lasted longer than two minutes.
Joey’s actions do not shock the conscience, are not “disposed to
inflict pain or suffering,” and are not “devoid of human
Cutrer, 697 S.W.2d at 158.
Although the children
were restrained, it was minimal, reasonable, and necessary to
calm down the children and prevent them from disturbing the
We do not believe Joey’s conduct in holding any
of these children depicted in the tapes amounted to criminal
abuse, and it would be unreasonable for a juror to so find.
Commonwealth introduced no statute, regulation, or policy that
says criss-cross should not be used for discipline.
Commonwealth simply misstates the law.
Therefore, we reverse
all four counts of criminal abuse in the third degree.
Due process requires that a defendant receive a fair
United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375,
Due process requires a court notice issues which bring into question the
substantial fairness of the proceedings at any time, even upon appeal or
discretionary review. Vachon v. New Hampshire, 414 U.S. 478, 94 S. Ct. 664,
38 L. Ed. 2d 666 (1974). See also, RCr 10.26; Schoenbachler v. Commonwealth,
87 L. Ed. 2d 481 (1985).
This Court finds it necessary to
remind the Commonwealth that its goal at trial “is not that it
shall win a case, but that justice shall be done.”
Id. at 675,
n.6, quoting, Berger v. United States, 295 U.S. 78, 88, 55 S.
Ct. 629, 633, 79 L. Ed. 1314 (1935).
The purpose of trial is as
much to acquit the innocent as to convict the guilty.
692 (citation omitted) (Marshall, J., dissenting).
From the very beginning of the Lighthouse
investigation, Joey Herndon was targeted, without cause.
investigation was supported or carried out with outright lies.
Children were told what to say.
Even though the investigation
found no corroborative evidence of abuse, the matter was taken
to trial where the investigating detective continued lying to
mislead the jury.
“[D]eliberate deception of a court and jurors
by the presentation of known false evidence is incompatible with
‘rudimentary demands of justice.’”
Giglio v. United States, 405
U.S. 150, 153, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104 (1972),
quoting, Mooney v. Holohan, 294 U.S. 103, 112, 55 S. Ct. 340,
342, 79 L. Ed. 791 (1935).43
“The same result obtains when the
State, although not soliciting false evidence, allows it to go
uncorrected when it appears.”
Giglio at 153, quoting, Napue v.
Ky., 95 S.W.3d 830, 836 (2003); Perkins v. Commonwealth, Ky. App., 694 S.W.2d
721, 722 (1985).
The police are part of the prosecutor’s team. Kyles v. Whitley, 514 U.S.
419, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995).
Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173, 1177, 3 L. Ed. 2d
PROCEEDINGS ON REMAND
The question on remand is whether the matter should be
retried or the charges dismissed.
As to the misdemeanor
convictions, as a matter of law, they must be dismissed because
the convictions are based on a record lacking evidence of guilt
as to crucial elements of the four counts of the offense of
third-degree criminal abuse.
In fact, the record, specifically
the videotapes of the incidents, exonerates the appellant.
Therefore, on remand, the circuit court should enter an order
dismissing the misdemeanor charges.
Vachon v. New Hampshire,
414 U.S. 478, 94 S. Ct. 664, 38 L. Ed. 2d 666 (1974).
The lone felony conviction, for first-degree sexual
abuse, is not so simple.
With our opinion that J.B.’s testimony
was inadmissible and that Dr. Kregor’s testimony was
inadmissible, there is no evidence of a crime.
trial court should have given a directed verdict of acquittal
based on the insufficiency of the evidence.
Benham, Ky., 816 S.W.2d 186 (1991); Schoenbachler v.
Commonwealth, Ky., 95 S.W.3d 830 (2003).
See also, Vachon, 414
U.S. at 480, quoting Harris v. United States, 404 U.S. 1232,
1233, 92 S. Ct. 10, 12, 30 L. Ed. 2d 25 (1971), “a conviction
based on a record lacking any relevant evidence as to a crucial
element of the offense charged . . . violate[s] due process.”
Therefore, on remand, the felony charge should be dismissed.
For the foregoing reasons, the judgment of conviction
entered in the Clark Circuit court is therefore reversed and the
case is remanded with directions to dismiss the charges.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
R. Burl McCoy
Tonya S. Conner
Albert B. Chandler, III
Attorney General of Kentucky
Matthew D. Nelson
Assistant Attorney General