JAMES W. HOLLOMAN V. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: FEBRUARY 22,200l
TO BE PUBLISHED
1999-SC-110%MR
JAMES W. HOLLOMAN
V.
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
97-CR-2459
COMMONWEALTH OF KENTUCKY
2000-SC-0475MR
And
APPELLANT
JAMES W. HOLLOMAN
V.
APPELLEE
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
97-CR-2459
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE WINTERSHEIMER
REVERSING AND REMANDING
Holloman seeks review, in separate appeals, from a judgment of conviction and
from an amended judgment. In IQQQ-SC-1105-MR, Holloman appeals from a judgment
based on a jury verdict which convicted him of one count of rape in the first degree, two
counts of sodomy in the first degree and one count of sexual abuse in the first degree.
He was originally sentenced to life imprisonment on each count with the sentences to
run consecutively. In 2000-SC-475MR, Holloman appeals from the Amended
Judgment of Conviction and Sentence which imposed a life sentence for the rape
charge, a fife sentence for each of the sodomy charges and a term of five years for the
sexual abuse charge, all sentences to be served consecutively. We have consolidated
the two appeals.
The questions presented are whether the trial judge abused his discretion in
excluding expert testimony that sought to demonstrate that the confession by Holloman
was not credible; whether the trial judge abused his discretion in not permitting
Holloman to ask questions of a witness on cross-examination that were not asked on
direct; whether use of a racial slur at trial was prejudicial; whether other bad act
evidence was properly admitted; whether the confession by Holloman was properly
admitted; whether the trial judge abused his discretion in not striking a prospective juror
for cause; whether the proper jury instructions were given; whether a statement by the
Commonwealth in her closing argument was improper; whether the Jefferson County
circuit court was without jurisdiction to amend the judgment after the notice of appeal to
this Court had been filed and whether the circuit court erroneously imposed consecutive
sentences.
Two police detectives went to the trailer where Holloman lived to question him
about allegations of sexual abuse made by a young girl. While there, Holloman not only
admitted sexually abusing that girl but he also admitted doing the same to another
victim. The latter became the sole victim named in the indictment which charged
-2-
Holloman with one count of first degree rape, two counts of first degree sodomy and
one count of first degree sexual abuse.
The prosecuting victim was eight years old at the time of the offenses and
eighteen years old at the time of trial. She testified that the acts occurred at Holloman’s
apartment between 1988 and 1990 while he babysat her and her sisters. The other
victim, who was twelve years old at the time of trial, also testified. She stated that when
she was ten years old, Holloman sexually abused her when he babysat her. Besides
the testimony of the two victims, the two police detectives testified concerning the
confession by Holloman. Although Holloman testified at the suppression hearing
concerning the voluntariness of his confession, he did not testify at trial.
The jury found Holloman guilty of all the charges in the indictment. It
recommended a sentence of life imprisonment for each charge except the sexual
abuse charge for which they recommended a five-year sentence and it recommended
that all the charges be served consecutively. The final judgment in this case was
entered on November 2, 1999, and it reflected the recommendation by the jury except
that it sentenced Holloman to life imprisonment on the sexual abuse charge.
Notice of appeal to this Court was timely filed on December 2, 1999. On April 26,
2000, the Commonwealth filed a motion in the Jefferson circuit court, seeking a
corrected or amended judgment, pursuant to CR 60.01 and 60.02, to reflect that the
sentence for sexual abuse first degree was five years, rather than life imprisonment. On
May 3, 2000, the circuit court entered and Amended Judgment of Conviction and
Sentence which imposed life sentences on the rape and sodomy offenses and a fiveyear sentence on the sexual abuse offense. It also ordered that all of the sentences be
-3-
served consecutively for a total sentence of life imprisonment. These consolidated
appeals followed.
.
I. Confession and Mental State
Holloman argues that the trial court committed prejudicial error when it excluded
evidence that demonstrated that his confession was not worthy of belief. The defense
sought to introduce the testimony of Dr. Wagner, a Clinical Psychologist, concerning
Holloman’s mental retardation and how that condition affects his ability to understand
and to communicate. It maintains that the proposed testimony was relevant on the
question of the credibility of the confession because the condition of Holloman makes
him vulnerable to suggestibility, to manipulation and to intimidation. When the trial
judge ruled that the evidence could not be admitted at trial, Holloman presented the
testimony of Dr. Wagner by avowal.
After Dr. Wagner testified on avowal, the trial judge excluded the testimony for
three reasons. First, he agreed with the Commonwealth that the opinion testimony
would go to the ultimate issue of the voluntariness of the confession. Second, he
believed the defense was using the testimony of Dr. Wagner as a subterfuge to get into
evidence mental retardation as a sympathy factor for the defendant. Finally, the trial
judge stated that he was concerned that defense counsel did not give appropriate notice
that it intended to offer such testimony.
In the context of lay testimony, the U.S. Supreme Court, in Crane v. Kentucky,
476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986), held that a defendant is denied
his 6th and 14th Amendment right to present a defense if prohibited from presenting
evidence “about the physical and psychological environment in which the confession
was obtained.” Therein, a 16-year-old minor was arrested for robbery and, while being
questioned, confessed to a totally unrelated murder and robbery. Counsel for the
defendant in that case unsuccessfully attempted to introduce evidence relating to the
duration of the interrogation or the individuals who were present in order to show that
the confession was not worthy of belief. In reversing the conviction and remanding the
case for harmless error analysis, the U.S. Supreme Court rejected the determination by
the trial court that the issue had been resolved by its earlier finding that the defendant
had confessed voluntarily. The Court explained that the Due Process Clause and the
Confrontation Clause of the Sixth Amendment entitle a criminal defendant to a
meaningful opportunity to present a complete defense, entirely independent of the
determination of the voluntariness of his confession.
Crane v. Kentuckv, H e r e is dispositive. r a n e ,
supra, , a s i n C
even
though
the
issue of voluntariness had been ruled upon, Holloman also had the constitutional right
to a fair opportunity to persuade the jury that his statements were not credible and
should not be believed. His proffered expert testimony should not have been excluded
on the basis of relevancy because it was permissible evidence bearing directly on the
reliability of his statements. The stated reasons offered by the trial judge for excluding
the testimony were not sufficient.
When a constitutional error may have contributed to the conviction, it is
presumed to be prejudicial unless the reviewing court can declare that it was harmless
error beyond a reasonable doubt. Chaoman v. California, 386 U.S. 18, 87 S.Ct. 824, 17
L.Ed.2d 705 (1967). In determining whether an error is prejudicial, an appellate court
must consider whether upon the whole case there is a substantial possibility that the
-5-
result would have been any different. Abernathv v. Commonwealth, Ky., 439 S.W.2d
949, 952 (1969). Two important circumstances in making such a determination are the
weight of the evidence and the degree of punishment fixed by the verdict. Abernathv,
Here, although the testimony by the prosecuting victim was enough to convict
supra.
Holloman, the jury imposed the maximum sentence on each charge. Consequently, the
error was not harmless. Thus, we must reverse the conviction and remand for a new
trial.
II. Redirect Testimony
Next, Holloman argues that the trial judge abused his discretion in declining to
admit testimony of a witness on redirect. At trial, defense counsel requested that he be
granted permission to go beyond the scope of cross-examination to ask a witness, the
girlfriend of Holloman, about two topics that counsel had forgotten to question her about
during direct examination. Defense counsel explained that he forgot to ask her about
the difficulty she had in communicating with Holloman and about the phone
conversation she had with him after he had talked to the police. The trial judge stated
that he would not permit the inquiry because the testimony would be cumulative and
was beyond the scope of cross-examination. We express no opinion as to this
allegation of error because we consider it unlikely that it will reoccur upon another trial.
Ill. Racial Slur
Holloman was not denied a fair trial when the trial judge permitted the
Commonwealth to introduce testimony that he had used a racial slur during his
interrogation by the police. The record discloses that the language used by some of the
parties in this case is crude, coarse and foul and includes what might be called a racial
-6-
slur. Experienced law enforcement officers encounter such common vulgarity on a
regular basis. Here, the police detective testified that when he asked Holloman about
sexual intercourse with one of the victims, he denied it, stating he wouldn’t do that
because he perceived the victim as promiscuous. When the prosecutor then asked
specifically what Holloman had stated, defense counsel objected. During a bench
conference, the trial judge was advised by the prosecutor and the officer about the
sexual activity of one of the victims in the neighborhood. The trial judge then asked if it
was necessary to the prosecution’s case and was told that it was an explanation of why
Holloman had stopped his own sexual activities with one of the victims. The judge
overruled the defense objection that the testimony was inflammatory and irrelevant.
The detective then paraphrased Holloman’s graphic language in testifying that Holloman
claimed he did not engage in sexual intercourse with this victim because she was ‘If-----all the ‘n-word[s]’ in the neighborhood.”
Holloman was Caucasian, and three of the
nine women on the jury were African Americans.
Upon remand, if the Commonwealth again seeks to introduce testimony
concerning this portion of the defendant’s statement and the trial court again finds this
testimony relevant, the trial court should evaluate the admissibility of this testimony
pursuant to KRE 403 and determine whether the possible prejudice associated with the
statement substantially outweighs its probativeness. If the trial judge finds the
probative value of the statement is substantially outweighed by the danger of undue
prejudice then it may be excluded. See KRE 403. Otherwise, the trial judge once
again should allow the Commonwealth to introduce testimony concerning the
defendant’s statement.
-7-
IV. Unrelated Allegations
The trial judge did not abuse his discretion in admitting evidence of related acts
against a second victim. Evidence of independent sexual acts between the accused
and a person other than the prosecuting victim, if similar to the act charged, and not too
remote in time, is admissible to show intent, motive, or a common plan. a, Anastasi
v. Commonwealth, Ky., 754 S.W.2d 860 (1988). The facts related by the second victim
were sufficiently similar to the facts related by the prosecuting victim. In both cases,
Holloman was the victim’s babysitter and was alone with the girls. Both victims were
less than twelve years of age at the time of abuse. He committed the offenses against
both girls on the living room floor and his bedroom. Finally, the specific sexual acts
committed against both victims were very similar. Clearly, this evidence was relevant.
Furthermore, the probative value of this evidence was not substantially
outweighed by the danger of undue prejudice. KRE 403. The trial judge did not abuse
his discretion in admitting the evidence of prior acts of sexual misconduct by Holloman.
a, Commonwealth v. Enalish, Ky., 993 S.W.2d
941 (1999).
V. Exclusion of Involuntary Confession
The trial judge did not abuse his discretion in declining to suppress the
confession made by Holloman. Before trial, Holloman filed a motion to suppress his
statements to the police claiming they were involuntarily obtained. The trial judge held a
suppression hearing at which Holloman testified, as did the police detective, Dr. Wagner
and Holloman’s girlfriend. The trial judge found that the statements by Holloman were
made in a non-custodial setting. Indeed, the detective testified that he and another
-8-
detective went to the home of Holioman to speak with him about allegations made by
one of the victims. Holloman invited the detectives in, asked if they wanted something
to drink and got them an ashtray. They then sat in the living room and spoke. Although
Holloman was not under arrest, he was orally advised of his Miranda rights and signed
a form acknowledging his rights. The trial judge also found that based on his
observance of Holloman that he was capable of expressing himself and that he knew
what he was doing when he made the statements.
After a careful review of the record, we hold that substantial evidence supports
the findings by the trial court. Although Holloman presented testimony from Dr. Wagner
regarding his low I.Q., that alone is an insufficient basis for find the statement was
involuntary. Cf. Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.Zd
473
(1986). The confession was properly admitted.
VI. Juror
Holloman claims that the trial court abused its discretion when it refused to strike
for cause a juror who said that she was a personal friend of an assistant
Commonwealth’s attorney. We express no opinion as to this allegation of error
because we consider it unlikely that it will reoccur upon another trial.
VII. Course of Conduct Instruction
Next, Holloman contends that the trial judge erred when it instructed the jury on a
definition of “course of conduct” which did not apply to the charged offenses and which
invited the jury to convict based upon uncharged offenses. The jury was instructed in
the “definitions” instruction that:
-9-
“Course of Conduct” means a pattern of conduct composed
of two (2) or more acts, evidencing a continuity of purpose.
In each of the instructions defining the four offenses, the jury was told that it
could find Holloman guilty if it found beyond a reasonable doubt that he had
raped/sodomized/sexually abused the victim “in a continuing course of conduct.” The
statute in which the statutory definition of course of conduct is found is KRS 508.130
and relates to the crime of stalking. It states that the definitions in that statute, including
course of conduct, are definitions as used in KRS 508.130 to 508.150. Clearly, course
of conduct as defined in KRS 508.130 applies only to the crime of stalking and was
improperly included in these instructions. The use of “course of conduct” as it relates to
these charges should not be repeated in the instructions on retrial.
VIII. Closing Argument
Holloman maintains that the closing argument by the prosecutor in which she told
the jury that the defense attorney had to confuse one juror, while she had to convince all
twelve jurors, deprived him of a fair trial. He contends that the obvious suggestion was
that what the defense really wanted was for the jury to deadlock.
Holloman concedes
that this issue was not properly preserved but alleges that the error was palpable.
This issue is speculative. The Commonwealth did not urge the jury to deadlock.
Even if the comment by the prosecutor was ambiguous, such a statement in closing
argument is not presumed to have its most damaging meaning. Cf. White v.
Commonwealth, Ky.App., 66 S.W.2d 529 (1980), citing Donnellv v. DeChristoforo, 416
U.S. 637, 94 S.Ct. 1868,40 L.Ed.2d
431 (1974). No palpable error occurred.
-lO-
IX. Sentencing
As it relates to his sentencing, Holloman argues that the circuit court was without
jurisdiction to amend the judgment after the notice of appeal to this Court had been
filed. He also contends that the circuit judge erroneously imposed consecutive
sentences. We must agree. Once the appeal was perfected, the judgment could not be
amended without leave of this Court. RCr 10.10. Moreover, it is erroneous for a
judgment to run a sentence of life imprisonment consecutively to a five-year sentence.
Mabe v. Commonwealth, KY., 884 S.W.2d 668 (1994); Hall v. Commonwealth, KY., 862
S.W.2d
321 (1993). Consecutive life sentences are also improper. Lear v.
Commonwealth, Ky., 884 S.W.2d
657 (1994). Nevertheless, because we are reversing
the conviction of Holloman these issues are now moot.
The judgment of conviction is reversed and remanded for a new trial.
All concur.
COUNSEL FOR APPELLANT:
COUNSEL FOR APPELLEE:
Daniel T. Goyette
Jefferson District Public Defender
A. B. Chandler III
Attorney General
Bruce P. Hackett
Deputy Appellate Defender
Office of the Jefferson District Public
Defender
200 Civic Plaza
719 West Jefferson Street
Louisville, KY 40202
Kent T. Young
Assistant Attorney General
1024 Capital Center Drive
Frankfort, KY 40601
-ll-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.