BRYANT PENDLETON V. COMMONWEALTH OF KENTUCKY
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RENDERED: JUNE 13, 2002
TO BE PUBLISHED
BRYANT
PENDLETON
APPEAL FROM TODD CIRCUIT COURT
HONORABLE TYLER L. GILL, JUDGE
99-CR-018
V.
i:OMMONWEA-TH
OF KENTUCKY
OPlNlON
APPELLEE
OF THE COURT BY JUSTICE GRAVES
Part,and Remanding, In Part_
Affirming, In _-/?ppellant. Bryant Pendleton. was convicted in the Todd Circuit Court of firstc!qrce
sodomy and sentenced to fifty years imprisonment. He appeals to illis Coilit as
a njaiter of right claiming that the trial court committed reversible error by: (I) denying a
tlcaI-rrng to derl!onstrate
that the victim’s testimony was incompetent and unreiiable: (21
denying a contrnuance to obtain funds for an independent expel2 in child witness
IntervIewing
techniques; (3) failing to secure exculpatory evidence; (4) dismissing
a
juror for cause; (5) failing to appoint an expert to assist the defense in deterrnintng the
nature and reliability of the sex-offender risk assessment;
(6j
a!lowing the victim to
testify to prior acts of sodomy; and (7) refusing to grant a directed verdict. After l;earlr:g
oral argument and reviewing the record. we affirm, in part and remand! in part
In 19X. Appellant and his girlfriend, Dana Uhles. were living in a trailer in
Trenton, Kentucky, with the couple’s daughter, Appellant’s son, and Uhles’ ten-year-old
dauglhter, D.A. In April 1998, D.A. claimed that she was playing in her bedroom when
AppcllX?t entered and shut the door. He then pulled down his pants and tcld her to
“suck his private.” At trial, D.A. testified that “something white came out” and that
Appellant wiped the substance on his shirt. Appellant thereafter left, saying nothing
frrrther. D.A. claimed that this was not the first such incident.
D.A. apparently informed her mother of the incidents in a note, and again, some
confusion exists over whether she then gave the note to her mother or whether her
mottler found it. In any event, mother and child confronted Appellant twice over the
next two days, but both times he denied all allegations He responded that D.A. was
mad at him because he had refused to buy her a present on the day he had delivered a
present from another family member to his son. D.A ‘s mother contacted a social
workerr Kathy Holman, who subsequently interviewed D.A. Appellant was eventually
rildrcted for two counts of first-degree sodomy. Additional
facts are set forth as
necessary.
I
Prior to trial. defense counsel moved to disqualify D.A.‘s testimony on the
grounds that it was the product of interview techniques employed by the social worker
that were “leading, suggestive, cajoling, and coercive.” At a hearing, the trial court
framed the issue as one concerning D.A.?+ credibility, not the admissibility of the
videotaped interview, which the Commonwealth did not intend to introduce. The court
also noted that Kentucky does not follow the holding in New Jersevv.Michaels.
642
A.23 1372 (N.J. 1994), which upheld a taint hearing to determine whether intervrewing
techntques were so flawed as to distort a child witness’s recollection of events and
7
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thereby undermine the reliability of the testimony. On the morning of trial, defense
counsel again moved the trial court to review the videotape to determine D.A.3
sompe?ency
Again, the motion was denied.
The parties disagree whether this issue is properly preserved for review. The
Commonwealth contends that Appellant’s request for the trial court to review the video
tape was not, in fact, a motion for a competency hearing, to which Appellant now claims
he was entitled. Furthermore. once D.A. took the stand, Appellant never raised an
objection to her testimony Appellant, on the other hand, argues that a “taint hearing” is
nothtng less than a competency hearing because it challenges the first-hand knowledge
of the victim.
Appellant asserts first-hand knowledge is lacking in this case, and D-A’s
testimony is merely the product of suggestion by the social worker. In any case,
although the trial court declined to review the videotape, it was never introduced at trial.
Pursuant to KRE 601. a witness is competent to testify if she is able to perceive
accurately that about which she is to testify, can recall the facts. can express herself
inte!iigibly, and can understand the need to te!l the truth. The competency bar is low.
witfh a child’s competency depending on her level of development and upon the subject
matter at hand. Jarvis v. Cotnmonwealth, Ky., 960 S.W.2d 466 (1998).
T-he trral court has the sound discretion to determine whether a witness
IS
competent to testify. Pendleton v. Commonwealth Ky., 685 S.W.2d 549, 551 (1985).
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The trial court is in the unique position to observe witnesses and to determine their
competency.
See Kotas v. Commonwealth, Ky., 565 S.W.Zd 445, 447 (1978). Age is
not determinative of competency and there is no minimutn age for testrr-nonral
liuiuif>_hrey
v. Commonwealth, Ky., 962 S.W.2d 870 (1998). In Capps v.
Cot.rtn]onwealth. Ky.. 560 S.W.2d 559, 560 (1977), we stated:
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capacity.
When the competency of an infant to testify is properly raised it is then the
duty of the trial court to carefully examine the witness to ascertain whether
she (or he) is sufficiently intelligent to observe, recollect and narrate the
facts and has a moral sense of obligation to speak the truth. (Quoting
lvkmre ‘J. Commonwealth, Ky., 384 S.W.2d 498, 500 (1964)).
In this case, not only did the trial court have the opportunity to observe D.A. in
the courtroom, but the judge stated that he had heard D.A.? testimony from another
case in another county and was familiar with her competency to testify. Based on its
familiarity with D.A.‘s ability to testify, the trial court properly held that she was
competent. A review of D.A.% testimony reveals that she was able to identify Appellant
as the perpetrator, and could provide details of the acts committed against her
Furthermore, Appellant had the ability to cross-examine D.A. and undermine her
credibility wrth the jury, if he felt her testimony had been coerced by the social worker
No error occurred
Il.
Four days before trial, Appellant moved for a continuance “for the purpose of
allowrng the defendant to retain and interview one or more expert witnesses to ald the
jury by explaining the coercive or suggestive propensities of the interviewing techniques
employed in the videotape of the child victim.” In denying the motion. the trial court
stated that Appellant had been under indictment for four months and the case should
be tried on schedule.
Smdgrass v. Commonwealth, Ky., 814 S.W.2d 579, 581 (‘1991), sets forth seven
factors to be weighed in determining the propriety of granting a continuance. length of
delay, number of prior continuances granted, inconvenience to litigants, which party
caused the delay, availability of counsel, complexity of the case, and prejudice to the
parties
See also Hunter v. Commonwealth, Ky., 869 S.W.2d 719 (1994). Appellant
readily admits that the length of the delay would be unknown, since interviewing
chirdren is a complex issue. The record reveals that the trial court had a/read>’ granted
one prior continuance for more than two weeks. Finally, Appellant concedes that the
defense had the videotape of D.A.‘s interview for a month before requesting the
continuance. As such. the trial court did not abuse its discretion in determining that
further delay for the purpose of exploring a controversial topic and setting up a battle of
experts was not appropriate.
Furthermore, as noted above, the videotape was never played for the jury. Thus,
Appellant was not prejudiced by the denial of additional time to controvert evidence that
was never introduced. Appellant had the opportunity to cross-examine D.A., who
testified about the events she remembered without reference to the videotape. Failure
tcJ gra::t a COrltinUanCe
Was not erm.
111.
Appellant next takes issue with the failure of police officers to locate the short
D.A. alleged he used to wipe off the “white stuff.” as well as arresting Officer Harris
refusal to permit Appellant to pull down his pants to demonstrate that he suffered from
genitai herpes. Appellant concedes that this issue is not preserved but urges review
under RCr 10.26.
First, contrary to Appellant’s claim, we fail to perceive how the shirt would have
been exculpatory evidence. In fact, had police found the shirt, it would have further
supported D.A.‘s allegations. Similarly, we cannot agree that the fact that Appellant
was suffering from genital herpes, which D.A. evidently did not contract, constitutes
exculpatory evidence either. Appellant did not offer any evidence that herpes is
transmitted by each and every contact with an infected person. As Appellant failed to
raise these issues before the trial court, such are not preserved for review in this Court
Further, error, if any, did not affect Appe!fant’s substantive rights and does nc;\t warran:
reversal of his conviction. RCr 10.26.
IV.
After the trial began, Juror Townsend revealed that he recognized members of
D.A.3 family from church, although he had not remembered their names when asked
during voir dire. During an in-chambers hearing, Juror Townsend stated that his
knowledge of D.A.‘s family would not affect him because he was “leaning towards the
defendant.” The Commonwealth thereafter moved for the dismissal of Juror Townsend
The trial court stated it would make a decision at the close of the evidence, at which
time Juror Townsend was dismissed as the alternate. Appellant now argues that the
dIsmissal
was improper.
This Court has long recognized that “[a] determinatlo:)
as to whether to exciude a
juror for cause lies within the sound discretion of the trial court. and unless the action of
the trial court is an abuse of discretion or is clearly erroneous, an appellate court will not
Ireverse the trial court’s determination.” Sholler v. Commonwealth, Ky., 969 S.W.2d
706, 708 (1998), quoting Commonwealth v. Lewis, Ky., 903 S.‘vV.2d
524. 527 (1995).
Jurors are routinely dismissed for cause for knowing parties and/or witnesses, as well
as for expressing bias toward one party or the other.
Obviously, Appellant wished to
keep Juror .Townsend because of his indication of bias toward Appellant. While we can
understand Appellant’s desire to keep a juror he felt could be a proverbial ace in the
hole, Appellant has no right to the inclusion of any particular juror on the panel. We
cannot conclude that the trial court abused its discretion in this instance since it was tn
the best position to view and make decisions about the demeanor and answers of juror
Townsend.
Appellant argues that defense counsel did not have adequate time to review the
risk assessment report. We have recently held that due process rights require that
Appellant have sufficient time to review the risk assessment report, and to employ an
expert to study the report, examine Appellant, and help address the conclusions
reached in the report. As such, it was error for the trial court to deny defense counsel’s
request for a continuance during the risk assessment hearing.
KRS 17.570(l), as amended in 1998’, provides that upon the conviction of a
“sex crime” as defined in KRS 17.500, the sentencing court shall order a sex offender
risk assessnrent
to determine whether the offender should be classified as a high.
moderate, or low risk offender: to designate the length of time the offender should
register. and to designate the type of community notification that should be provrded
upon the offender’s release, Following the completion of the assessment by a certified
provider, the court is required to hold a hearing and “review the recommendations of
the certified provider along with any statement by a victim or victims and any materials
submitted by the sex offender.” KRS 17.570(3).
The Kentucky Rules of Criminal
Procedure apply and the sex offender has the right to attend the hearing and be heard.
KRS 17.570(4).
Recently, this Court in Hyatt v. Commonwealth, 2000-SC-0676-DG
(February 21,
’ In April 2000, the General Assetnbly enacted Senate Bill 263. which eliminated
the process of ordering a risk assessment prior to the classificatron of a sex offender
and the entire classification scheme. As Appellant was convicted and sentenced in
1999. the 1998 version of the statute is applicab!e.
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2002) held that the defendant’s due process rights were violated at the risk assessment
hearing because the report arrived too late to provide him with notice of its contents. to
a!low counsel to read and consider it, and to a!low sufficient time for preparation
including the calling of expert witnesses, if any, to counter the conclusions of the report,
The situation presented in this case is essentially indistinguishable from Hyatt, suora.
Defense counsel received Appellant’s risk assessment report the day before the
hearing. At the hearing, counsel stated he was not prepared to address the
conclusions reached by the certified provider and requested a continuance to review
the report and have an expert appointed to help prepare for the hearing and possrbly
conduct an independent evaluation of Appellant. The Commonwealth contends that
Appellant drd not contest the contents of the report. However, a review of the video
rndrcates
that the trial court asked if there were any factual discrepancies contained
therein. While defense counsel noted he did not see any factual errors. at no time did
he state that Appellant accepted the conclusions in the report.
Both the Fourteenth Amendment to the United States Constitutron and Section
1-I of the Kentucky Constitution guarantee the right of a defendant to call witnesses on
hrs behalf Whrle due process rights may be limited in certain proceedings, Appellant
was entitled to notice of the reports contents rn order to be able to present experts to
testify during the risk assessment hearing. By failing to grant a continuance. the trial
coutt denied Appellant due process of law. This case is remanded for a hearing in
accordance with the pre-2000 amendments.
Vi.
Appellant argues that the trial court erred in allowing D.A. to testify that Appellant
sodomized her on multiple occasions. Under KRE 404(b). “[elvidence of other crimes,
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wrongs, or acts is not admissible in order to prove the character of a person or in order
to show action in conformity therewith.” Prior acts may be admissible for other
purposes, however, and the Commonwealth argues here that the evidence was
admissible under KRE 404(b)(2), because it was “so inextricably intertwined with other
evidence essential to the case that separation of the two could not be accomplished
without serious adverse effect on the offering party.”
In the instant case, the witness was an 1 l-year-old child, who was unable to
answer specific questions as to the dates of specific crimes. The prosecutor asked her
general questions about locations and dates to which she responded sometimes with
answers that pertained to the incident in question and somettmes
to other incidents
Evidence of similar acts against the same victim is admissible under KRE 404(b)(l) as
proof of “motive. opportunity. intent, preparation, plan, knowledge, identity. or absence
of mistake or accident ” Thus. while D.A. was unable to separate the details of the
various Incidents, her testimony was nonetheless admissible. Price v. Comrnwealt~.
Ky.. 31 S.W3d 885, 888, n.4 (2000). Further, to limit her testimony to only the midApril Incident could have effectively prevented her from testifying as to any of the acts.
VII.
Finally, Appellant argues that he was entitled to a directed verdict because D.A.‘s
testimony, in his opinion, was “inherently incredible and improbable.” Again. Appellant
relies on the fact that D.A. did not contract genital herpes. Appellant did not produce
any evidence that genital herpes, if in fact he was suffering from an outbreak at the time
of the offense, is always transmitted. We are of the opinion that the Commonwealth
produced sufficient evidence for a reasonable jury to conclude that Appellant was guilty
of the charged offenses so as to withstand a directed verdict. Commonwealth v.
Benham
___--- ! Ky , 816 S.W.2d 186 (1991); Commonwealth v. Sawhill, Ky., 660 S.W.2d 3
(1983).
For the foregoing reasons, we affirm Appellant’s conviction for first-degree
sodomy. However, we remand the matter for a new risk assessment hearing
consistent with this opinion
Lamhert,
C.J., Cooper, Graves, Johnstone, and Wintersheimer. J.J. concur
Stumbo, J., dissents in a separate opinion in which Keller, J., joins..
COUNSEL FOR APPELLANT
David T. Eucker
Department of Public Advocacy
100 Fair Oaks Lane
Frankfort, KY 40601
COUNSEL FOR APPELLEE
A B. Chandler III
Attorney General
Perry T. Ryan
Assistant Attorney General
Office of Attorney General
Crtminai Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
RENDERED: JUNE 13, 2002
TO BE PUBLISHED
1999-SC-1092-MR
BRYANT PENDLETON
V.
APPELLANT
APPEAL FROM TODD CIRCUIT COURT
HONORABLE TYLER L. GILL, JUDGE
99-CR-018
COMMONWEALTH OF KENTUCKY
APPELLEE
DISSENTING OPINION BY JUSTICE STUMBO
Respectfully, I must dissent from that portion of the majority opinion which holds
that it was not error for the trial court to conduct an evidentiary hearing into the issue of
whether the victim’s testimony should be suppressed due to the use of improper and
perhaps coercive interview techniques. The majority, like the trial court, simply treats
this issue as one of witness competency. While that is in essence the final decision
that must be reached by a trial court when considering this particular type of challenge
to witness testimony, the issue is more subtle and complex than the plain factors set
forth in KRE 601. That, however, is where the inquiry must begin.
KRE 601 establishes that a witness is competent only if four facts exist;
1. The witness is able to perceive accurately whatever it is they want to testify
about;
2. The witness can recall the facts;
3. The witness can express him or herself intelligibly; and,
4. The witness understands the need to tell the truth.
The New Jersey Supreme Court noted that “[i]f a child’s recollection of events
has been molded by an interrogation, that influence undermines the reliability of the
child’s responses as an accurate recollection of actual events.” New Jersev v.
Michaels, 642 A.2d 1372, 1377 (N.J. 1994). The precise issue the court addressed in
Michaels was “whether the interview techniques used by the State in this case were so
coercive or suggestive that they had a capacity to distort substantially the children’s
recollections of actual events and thus compromise the reliability of the children’s
statements and testimony based on their recollections.” Id. at 1377. The concern
voiced by the New Jersey Supreme Court and Appellant herein is that the child witness
can be suggestible and easily led and that if questioned repeatedly and in a coercive
fashion, the child will no longer be able to distinguish between what actually happened
to him or her and what the questioning party wanted to hear. As noted in Michaels:
“[A] fairly wide consensus exists among experts, scholars
and practitioners concerning improper interrogation
techniques. They argue that among the factors that can
undermine the neutrality of an interview and create undue
suggestiveness are a lack of investigatory independence,
the pursuit by the interviewer of a preconceived notion of
what has happened to the child, the use of leading
questions, and a lack of control for outside influences on the
child’s statements, such as previous conversations with
parents or peers.”
Id. Thus, the inquiry is whether the method of questioning has so affected the victim
that his or her ability to recall facts and to perceive accurately whatever it was they were
to testify about. The witness can be competent in the sense that his or her mental
acuity and maturity are such that ordinarily the witness would be allowed to testify, yet
-2-
the witness’ recollection of the specific incident at issue is so warped or affected by the
improper questioning that he or she is rendered incompetent.
Appellant argued to the trial court and asserts here that the videotape of the child
victim’s interview was leading and suggestive and that the social worker doing the
questioning assumed that bad things had happened. He further states that the social
worker, not the victim, told the story. At trial, he specifically requested that the court
consider whether the victim’s testimony was tainted by the method by which she was
questioned and hold a taint hearing to take evidence. The trial court specifically denied
the motion on the grounds that there was no legal precedent for such a hearing in
Kentucky. He further stated that he had not reviewed the videotape of the interview.
The court also denied a defense motion for funds with which to hire an expert on child
interviewing techniques.
Given that there was no physical evidence to support the charges, the victim’s
testimony was critical to the case. Appellant faces fifty years in prison. The trial court
should have held a hearing to determine whether the method of questioning used
tainted the victim’s testimony to the extent that she was rendered incompetent to testify,
I would reverse and remand this conviction for retrial.
Keller, J., joins this dissent.
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