PADILLA (JESSICA) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: DECEMBER 29, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001221-MR
JESSICA PADILLA
v.
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NO. 08-CR-00408
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: TAYLOR, CHIEF JUDGE; LAMBERT, JUDGE; HENRY,1 SENIOR
JUDGE.
HENRY, SENIOR JUDGE: Jessica Padilla appeals from a judgment of the
Kenton Circuit Court which imposed a sentence of ten years after a jury found her
guilty of criminal abuse in the first degree. Padilla raises two arguments on appeal:
first, she requests palpable error review of her contention that, at her sentencing
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Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
hearing, the Commonwealth introduced false statistical evidence regarding her
likelihood of receiving parole. Second, she contends that her right to confront
witnesses was violated by one of the Commonwealth’s medical witnesses who
testified regarding the opinions of her colleagues. Upon review, we affirm the
judgment of the Kenton Circuit Court.
Padilla was charged with criminal abuse after she brought her eight-monthold baby to the hospital with a broken arm. The child’s left elbow was swollen,
severely broken and significantly displaced. The pediatric orthopedic surgeon who
operated on the child testified that the fracture was caused by hyper-extension, or a
“bending back” of the elbow. At the hospital, it was discovered that the child
suffered from six other fractures, to the left shoulder, right shoulder, right radius,
right ulna, femur and tibia/fibula. Some of these fractures were partially healed.
The child also had a lacerated liver and bruising of the face.
Padilla offered various explanations for the broken arm, including that she
had dropped the baby, or lifted her up by the arms from her play pen and heard a
popping sound. She stated that the bruising to the child’s face was caused by force
feeding and cleaning the child. According to the testimony of Dr. Berkeley
Bennett of Cincinnati Children’s Hospital, simply pulling an eight-month-old baby
by the arms from her playpen would not cause the type of fracture suffered by the
child in this case, because such a fracture would require a lot of force and twisting.
Dr. Bennett testified that a normal household accident would not cause this type of
injury either. As to the laceration of the liver, she testified that it would be caused
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by the child being squeezed very hard, or by something hitting the child’s abdomen
very hard with a lot of force. The child’s father, who had resided intermittently
with Padilla, testified at her trial that he had cautioned her for being too rough with
the baby. In her closing argument, Padilla’s defense counsel focused on Padilla’s
mental state and argued that the Commonwealth had failed to prove that she had
the requisite intent to commit first-degree criminal abuse.
On appeal, Padilla argues that testimony presented during her sentencing
hearing by Talia Jefferson of the Kentucky Department of Corrections division of
Probation and Parole office was false and constituted palpable error warranting
reversal of her sentence. Jefferson was asked by the Commonwealth attorney
when Padilla would become eligible for parole if she received a sentence of five
years, then if she received a sentence of ten years. Jefferson responded one year
and two years respectively. The Commonwealth attorney then asked whether
Jefferson had any idea or knowledge of the likelihood of individuals being released
on parole for this type of offense. Jefferson responded that forty-seven percent of
those eligible are released. The Commonwealth attorney then asked, “So of all the
cases the parole board looks at, almost half are released from prison?” Jefferson
replied, “That is correct.” The Commonwealth attorney asked, “On their first time
before the board?” Jefferson replied, “Yes.”
Although the alleged error was unpreserved, Padilla argues that the
admission of this statistical evidence constitutes palpable error. As support for her
argument, she relies on Young v. Commonwealth, 129 S.W.3d 343 (Ky. 2004). In
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that case, a defendant convicted of capital murder sought to introduce statistical
evidence of the likelihood of receiving parole in order to demonstrate to the jury
that he did not have a high probability of receiving parole if given a sentence lesser
than death. The trial court did not allow the statistical evidence to be admitted.
The Supreme Court affirmed the trial court’s decision, stating in part as follows:
The statistics compiled by Young and sought to be
introduced as to parole probability are not probative of
his chances of being paroled. The evidence he attempts to
present does not predict his actual chances of being
paroled and therefore is irrelevant and incompetent. See
KRE 401-403. The statistics presented for the years 1993
to 2001 cover only the actions of the current parole
board. His parole determination will be made by a
different board selected by a different administration
which may have different parole policies. Parole
determination is inherently an individualized decision
based on the particular facts of the case under
consideration and it is therefore difficult, if not
impossible, to predict by generalized probability
statistics.
...
Our review indicates that the trial judge did not abuse her
discretion in refusing to accept the proffered statistical
evidence from Young. The evidence simply fails to
demonstrate what it is offered to prove; it does not
indicate that Young is likely or unlikely to be paroled
when he becomes eligible. The evidence relies on the
assumption that the Young case is an “average” case and
is highly speculative. The decision whether to grant
parole to a defendant is an inherently individualized
decision and although statistics may illustrate what
happens in the average situation, they are not probative
as to what will happen in a particular case.
Id. at 344-345 (internal citations omitted).
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Relying on Robinson v. Commonwealth, 181 S.W.3d 30 (Ky. 2005), in
which the Kentucky Supreme Court held that the use of incorrect or false
testimony by the prosecution is a violation of due process when the testimony is
material, Padilla argues that the use of parole statistics in sentencing hearings in an
effort to imply that a specific defendant has a precise likelihood of being granted
parole is a falsity warranting reversal as palpable error.
For an error to be palpable, it must be easily perceptible,
plain, obvious and readily noticeable. A palpable error
must involve prejudice more egregious than that
occurring in reversible error. A palpable error must be so
grave in nature that if it were uncorrected, it would
seriously affect the fairness of the proceedings. Thus,
what a palpable error analysis boils down to is whether
the reviewing court believes there is a substantial
possibility that the result in the case would have been
different without the error. If not, the error cannot be
palpable. (internal quotation marks and footnotes
omitted).
Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006). “To discover
manifest injustice, a reviewing court must plumb the depths of the proceeding, . . .
to determine whether the defect in the proceeding was shocking or
jurisprudentially intolerable.” Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky.
2006).
In Robinson, the testimony which constituted palpable error consisted of
incorrect information as to when statutory good time credits would be applied to
the defendant’s sentence. Robinson, 181 S.W.3d at 38. By contrast, the statistics
to which Jefferson testified are not false or incorrect. Neither were the statistics at
issue in Young. Rather, the Young court ruled that the statements were properly
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excluded because they were not probative and were in fact irrelevant and
incompetent. Similarly, the statistics introduced in Padilla’s case were irrelevant,
incompetent and prejudicial. The question is whether the statistical evidence was
so prejudicial that there is a substantial possibility that the result in this case would
have been different had it not been introduced. In light of the factual
circumstances of this case, and the grave nature of the injuries suffered by the
child, we do not think that there is a substantial possibility that the statistical
evidence seriously affected the jury’s decision to impose the maximum sentence.
Any error in the admission of the evidence was not palpable.
Padilla’s next argument concerns the testimony of Dr. Berkeley Bennett
regarding the possibility that the child may have had a genetic condition which
made her bones fragile and more prone to fractures. She claims Dr. Bennett was
improperly permitted to testify about the results of testing conducted by other
doctors who were not called to testify, thereby violating Padilla’s right to confront
witnesses.
On cross-examination, Dr. Bennett testified that she was part of a child
abuse team that was called upon to evaluate the child due to concerns about
potential abuse. Padilla’s trial counsel asked if she had not studied all possible
causes of the child’s injuries, and Dr. Bennett replied,
We, whenever we make a, a decision of whether we think
something is consistent with child abuse, we definitely
consider if there are other possibilities in terms of
metabolic bone diseases, accidental mechanisms, uh, and
that was reflected in our workup as we, um, got a
geneticist consult and took a history to see is there any
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other possible reason that [the child] would get fractures
more easily than another child, um, are there any other
possible accidental mechanisms, that’s all part of our
history and our evaluation.
Padilla’s counsel then asked if it was her conclusion that this was abuse, and Dr.
Bennett responded, “Yes.”
On redirect examination, the Commonwealth attorney asked whether Dr.
Bennett had looked at the history given. Dr. Bennett said, “Correct.” The
Commonwealth attorney then inquired, “You looked at the genetics testing to
ensure she didn’t have fragile bones?” Dr. Bennett replied,
Well I looked at . . . we, we took a history
and we even, we asked our genetics
colleagues, those who specialize in that, to
see her and evaluate if they thought further
testing was needed. They did not feel
further testing was needed.
Defense counsel objected, stating that Dr. Bennett had referred to the results of
testing performed by other physicians, and that this testimony violated Padilla’s
right to confrontation under the Sixth Amendment. “The Sixth Amendment
prohibits the admission of a testimonial statement of a declarant who does not
appear at trial, unless the declarant is unavailable to testify and the defendant had a
prior opportunity for cross examination.” Roach v. Commonwealth, 313 S.W.3d
101, 111 -112 (Ky. 2010) citing Crawford v. Washington, 541 U.S. 36, 124 S.Ct.
1354, 158 L.Ed.2d 177 (2004). The trial court overruled the objection, stating that
factual routine descriptive findings are not covered by the holding in Crawford v.
Washington.
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Crawford violations are reviewed under a harmless error analysis. Heard v.
Commonwealth, 217 S.W.3d 240, 244 (Ky. 2007). “The test is whether there is a
reasonable possibility that the evidence complained of might have contributed to
the conviction, . . . or, put otherwise, whether the error was harmless beyond a
reasonable doubt.” Talbott v. Commonwealth, 968 S.W.2d 76, 84 (Ky. 1998)
(internal citations and quotation marks omitted).
If we assume, without deciding, that Dr. Bennett’s reference to her other
colleagues’ feelings that further testing was not needed constituted testimonial
evidence and was therefore inadmissible, there is no reasonable possibility that the
purported error contributed to Padilla’s conviction. “In Milton v. Wainwright, 407
U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972), the admission of a confession
obtained in violation of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12
L.Ed.2d 246 (1964) was held harmless, since it only contained information which
was cumulative to that contained in three other admissible confessions.” Id. The
cross-examination of Dr. Bennett by Padilla’s own defense counsel had already
elicited the information that Dr. Bennett had consulted a geneticist and concluded
that the child’s injuries were the result of abuse. The more detailed information
elicited by the Commonwealth on re-direct examination was merely cumulative.
The admission of the statement does not entitle Padilla to relief.
The judgment of the Kenton Circuit Court is therefore affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
J. Brandon Pigg
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
W. Bryan Jones
Assistant Attorney General
Frankfort, Kentucky
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