BONNIE EARL NORRIS, SR . V. COMMONWEALTH OF KENTUCKY
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2001-SC-0193-MR
BONNIE EARL NORRIS, SR .
V.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE GARY D . PAYNE, JUDGE
2000-C R-0649
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE JOHNSTONE
REVERSING AND REMANDING
Appellant, Bonnie Earl Norris, Sr., was convicted by a Fayette Circuit Court jury
of two counts of incest against his daughter . Appellant received the maximum
sentence on each count : ten years' imprisonment, to be served consecutively. He
appeals as a matter of right. We reverse and remand for a new trial .
On January 18, 2000, Detective Brett Goode of the Lexington Police Department
received a report alleging that Appellant had engaged in sexual intercourse with his
minor daughter, AX, who was living in foster care at the time of the accusation . She
had been removed from her family home by the Cabinet for Families and Children
because she had conceived a child fathered by her brother, Bonnie Norris, Jr. By the
time of Appellant's trial, Appellant's wife, Fern Norris, had been tried and acquitted of
incest with her son, Ronnie Jr. Appellant did not testify on his own behalf, but his
defense was that he was physically incapable of committing incest with A .N . because
he had recently had major leg surgery and that A .N . fabricated the allegations to avoid
being forced to leave her foster home, where she was well-adjusted and happy.
Norris appeals his conviction, claiming four errors: (1) the trial court improperly
refused to admit testimony that a defense witness, Appellant's wife, had been acquitted
of a charged sex offense ; (2) the trial court improperly admitted evidence of an alleged
sex offense by Appellant against another daughter ; (3) the trial court should have
granted Appellant's directed verdict motion ; and (4) the trial court did not grant him
sufficient peremptory challenges.
I.
Fern Norris's Acquittal from Incest Charges
Appellant's first claim is that the trial court erred when it refused to allow him to
elicit testimony that Fern Norris had been acquitted of incest with her son, Ronnie Jr.,
in a separate case tried prior to Appellant's case. At trial, Detective Goode testified for
the prosecution . During cross-examination, defense counsel questioned Goode about
how he typically handled a case. Goode responded that he started by examining the
allegation, which he then offered to read to the jury. Defense counsel permitted Goode
to proceed and he read the allegation, which first described the victim's age, address,
and foster care arrangement. Goode concluded the allegation : "And this is what the
allegation states, that the father has done everything sexually to her [A.N .] that her
brother did. . . . And, also, Ronnie Jr ., . . . has had a sexual relationship with his
mother, Fern Norris . . . ."
After Detective Goode read the allegation, defense counsel concluded the crossexamination . The prosecutor then requested a bench conference, during which she
informed the court that she wanted to re-examine Detective Goode concerning, among
other things, the alleged incest between Mrs. Norris and Ronnie Jr. The prosecutor
claimed that defense counsel had already touched upon that line of inquiry. In addition
to reading the allegation of incest between Mrs. Norris and Ronnie Jr ., Detective
Goode had testified during cross-examination that a statement by Jeanie Benton - the
substance of which was not disclosed - "broke" Ronnie Jr . into confessing the various
sexual offenses he alleged in his statement . Ms . Benton's statement included an
allegation that she witnessed Mrs. Norris and Ronnie Jr . engaged in sexual
intercourse . The prosecutor claimed that since the subject was now broached, she
should be allowed to inquire about it . Defense counsel did not object .
On redirect examination, the prosecutor asked several questions about the
investigation of the charges of incest by Fern Norris against Ronnie Jr. For example,
the prosecutor asked Detective Goode : "So, [Ronnie Jr.] finally came around and
admitted to you that he had had sex with his mother?" Goode answered affirmatively.
And later, the prosecutor asked : "Is Jeanie Benton [a witness] talking about seeing
Ronnie Norris, Jr ., and his mother having sexual intercourse, is that right?" Goode
again confirmed.
On recross, defense counsel attempted to rehabilitate Fern Norris, since she
was to testify later, by eliciting a statement by Detective Goode that Mrs . Norris had
been acquitted of the incest charges . In a bench conference, the prosecutor objected
that the outcome of Mrs . Norris's case was irrelevant and inadmissible in Appellant's
case . Defense counsel responded that it was relevant because the prosecutor created
the perception that Mrs . Norris committed incest even though she had, in fact, been
acquitted of those charges . The trial court sustained the objection, suppressing the
acquittal evidence .
Later in the trial, Mrs . Norris testified on her husband's behalf . She was one of
only two defense witnesses, the other witness being a surgeon who testified that he
had performed surgery on Appellant's leg, shortly before the alleged incest occurred .
During Mrs . Norris's testimony, the prosecutor requested to approach the bench, where
she addressed the acquittal evidence : "I don't know if you've [defense counsel] talked
to her [Mrs . Norris] about it but she's not, well she's not, she's very liable to blurt out
that she was acquitted . And the court has already ruled that that's not admissible . So,
pull her over here and tell her (inaudible) on the witness stand (inaudible) ." While the
court's ruling was inaudible, it appears that the objection was sustained because
defense counsel immediately conferred with Mrs . Norris away from the jury .
Appellant claims that he should have been able to introduce evidence of his
wife's acquittal and that the trial court's decision to suppress that evidence was error.
We agree. At the outset, the Commonwealth contends that Appellant's argument is not
preserved because, the Commonwealth claims, Appellant made a different argument at
trial than on appeal . On the contrary, Appellant renews on appeal the argument he
made at trial: "I think [the evidence] is very relevant, [the prosecutor] has created the
perception that Fern [committed incest] when she has been acquitted in Fayette
County."
Appellant concedes, and the Commonwealth reiterates, that ordinarily evidence
of a prior acquittal is inadmissible . Neither party, however, correctly cites any authority
for this proposition . Yet there is case law that warns that it is improper to show that a
co-indictee has already been convicted [or acquitted] under the indictment . Martin v.
Commonwealth , Ky., 477 S.W.2d 506, 508 (1972); see also Tipton v. Commonwealth ,
Ky ., 640 S .W.2d 818, 820 (1982) . The reason for this common law rule is that whether
the defendant committed a [specific crime] is not aided in the slightest by the admission
of evidence of the fact that another jury concluded that another defendant had [or had
not] committed the [same crime] . Meredith v. Pennsylvania , 425 A.2d 334, 337-38 (Pa.
1981) (quoting Pennsylvania v. Amato, 297 A.2d 462 (Pa . 1972)) .
Appellant draws our attention to two exceptions to this rule . See Meredith , 425
A.2d at 338 (evidence of witness codefendant's acquittal permitted for limited purpose
of removing cloud cast over witness's testimony by commonwealth evidence indicating
witness's involvement in the alleged crimes) ; see also Arizona v. Farmer, 617 P .2d 521,
524-25 (Ariz. 1980) (when the state was allowed to ask a witness [acquitted
codefendant] whether he had been indicted for purpose of showing the possible bias
and motive of the witness . . . the defense should have been allowed to show that fear
of pending prosecution was not the motive.) But we need not search for or create an
exception to the rule: the rule is simply inapposite to Appellant's case . All of the cases
cited, supra, refer to codefendants or co-indictees, a relationship that Mrs . Norris did
not share with Appellant. Not only does the rule not apply, but there is no other good
reason for the evidence of Mrs . Norris's acquittal to be suppressed . That is, the
purpose served by the rule, which prohibits improperly bolstering the defendant's case
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not make it admissible . The prejudice against Mrs . Norris and, consequently, the
damage to Appellant, was substantial . While this case is a little different from the
norm, in that the party that seeks to cure, Norris, technically opened the door, we agree
with defense counsel's remarks to the prosecutor : "I cracked the door and you threw it
open, I say we can walk through . . . (inaudible) ." Or, to borrow the analogy used by
our predecessor Court: "[T]he appellants, having opened the book on the subject, were
not in a position to complain when their adversaries sought to read other verses from
the same chapter and page ." Harris v. Thompson , Ky., 497 S.W.2d 422, 430 (1973).
Evidence of Mrs. Norris's acquittal should have been admitted to attempt to
restore her character in the jurors' eyes . Concerning curative evidence, the Kansas
Supreme Court in Dewev held that " . . . the opponent may reply with similar
[inadmissible] evidence whenever it is needed for removing an unfair prejudice which
might otherwise have ensued from the original evidence . . . ." 505 P.2d at 724
(emphasis in original) . Defense counsel's failure to object does not alter our
conclusion . See R . Lawson, § 1 .10 IV, at 31-32 (3d ed . Michie 1993) (citing 1 Louisell
& Mueller, Federal Evidence, 51-52 (1977 & 1989 Supp .) ("A leading authority on
federal evidence law asserts that objections always carry an onus, that a party should
not have to object in order to retort in kind to inadmissible evidence, and that modern
federal cases support this conclusion .") This is especially true here, considering that
the acquittal evidence, unlike the curative evidence in cases like Jansen and Dewev ,
supra, did nothing to discredit the evidence against Norris but merely neutralized the
harmful effect of the Commonwealth's character attack . In other words, the
Commonwealth's case against Norris would not have been diminished in the slightest
by the acquittal evidence . Suppression of this evidence was error; because Mrs. Norris
was the central witness for Appellant, we cannot say the error was harmless.
Accordingly, we reverse and remand this case for a new trial . On retrial, barring any
unforeseen circumstances, evidence of the incest charges against Mrs . Norris should
not be admitted . If for some reason the evidence is admitted, however, evidence of
Mrs . Norris's acquittal would then be admissible .
II .
Taped Interview of Ronnie Jr. Accusing Appellant of Incest with
Another Daughter
We address Appellant's other arguments to the extent that they might recur on
retrial. During his investigation, Detective Goode interviewed Ronnie Jr . about the
alleged abuse committed by Ronnie Jr.'s father and mother . At trial, Ronnie Jr .'s
testimony contradicted his previous taped statements to Detective Goode . Ronnie Jr.
claimed that his earlier statements inculpating his father and mother had been coerced
by Detective Goode. The prosecutor introduced Ronnie Jr.'s taped statements as
impeachment evidence, with the stated purpose of disproving coercion . But the portion
of tape played by the prosecution contained statements about Mrs . Norris's alleged
incest with Ronnie Jr. as well as statements about Appellant's alleged incest with both
A .N . and one of Appellant's other daughters, K.N . Appellant was never charged with
incest against K.N . Appellant claims that Ronnie Jr.'s taped statements referring to
Appellant's alleged incest with K.N . violated KRE 404(b) .
After examining the taped statement, it appears that some parts of the statement
might be inadmissible; however, we decline to make a definitive ruling on this evidence
because of the changing circumstances that could occur on retrial. Of course, the most
obvious reason to exclude the evidence on retrial would be if Ronnie Jr.'s testimony at
-8-
trial is consistent with his taped statement. But also, the prosecutor argued that the
taped statement should be admitted because there was already evidence before the
jury that Appellant had committed incest against K.N . If that evidence is not in the
record on retrial, that fact would militate against admission of the taped statement, or
portions of it. Instead of making a ruling, we remind the trial court to follow the analysis
we outlined in Bell v. Commonwealth , Ky., 875 S.W.2d 882 (1994), for examining the
admissibility of KRE 404(b) evidence . And, as Professor Lawson points out, in
exercising its discretion under Rule 403, a trial court must consider in the balancing
test evidentiary alternatives (other available evidence to prove the fact in issue) . . . . R .
Lawson, The Kentucky Evidence Law Handbook, § 2.25 (3d ed. Michie 1993, 2000
supp.) (citing Old Chief v. United States , 519 U .S. 172, 117 S. Ct. 644, 136 L . Ed. 2d
574 (1997)) . Finally, as we cautioned in Bell, the trial court should include in the record
the reasons for its finding on admissibility .
III.
Directed Verdict Motion
Appellant also claims that the trial court erred by denying his motion for a
directed verdict. Appellant accurately asserts that AX's testimony about Appellant's
incest was undeniably equivocal : A.N. testified both that Appellant did have sexual
intercourse with her and that he did not. And her version of the events seemed to
change several times throughout her examination and cross-examination, especially
with respect to whether intercourse with her father occurred . Appellant also points out
that Ronnie Jr.'s testimony indicated that he did not witness Appellant commit incest
with A . N .
The standard of review concerning sufficiency of the evidence is stated in
Commonwealth v. Benham , Ky., 816 S .W .2d 186,187 (1991):
On motion for directed verdict, the trial court must draw all
fair and reasonable inferences from the evidence in favor of
the Commonwealth . If the evidence is sufficient to induce a
reasonable juror to believe beyond a reasonable doubt that
the defendant is guilty, a directed verdict should be given .
For the purpose of ruling on the motion, the trial court must
assume that the evidence for the Commonwealth is true, but
reserving to the jury questions as to the credibility and
weight to be given such testimony .
Appellant was charged with two counts of incest . According to the evidence,
one count allegedly took place in the bedroom and the other in the computer room.
Apart from her initial response, that Appellant did not have sexual intercourse with her,
AN did not waiver concerning her claim that Appellant committed incest with her in the
bedroom . The evidence on this count unquestionably meets the directed verdict
standard . The evidence concerning the second count is more equivocal, but no less
admissible . Although AX's version of events in the computer room changed during
her testimony, she ultimately affirmed that incest occurred . In other words, AX's
testimony suffered from credibility problems. But the credibility of a witness and weight
to be given to sworn testimony are for the jury to decide . Young v. Commonwealth , Ky.,
50 S .W.3d 148,165 (2001) ; Commonwealth v. Smith , Ky., 5 S.W.3d 126,129 (1999) .
Moreover, Ronnie Jr .'s impeachment testimony, introduced on audiotape, corroborated
AX's claim of incest in the computer room. Jett v . Commonwealth , Ky., 436 S.W.2d
788 (1969) (prior inconsistent statements serve as both impeachment and substantive
evidence .)
Appellant's final claim is without merit .
-10-
For the foregoing reasons, the judgment of the Fayette Circuit Court is reversed
and this case is remanded to the Fayette Circuit Court for a retrial consistent with this
opinion .
Lambert, C .J . ; Cooper, Graves, and Stumbo, JJ ., concur. Keller, J ., dissents by
separate opinion, with Wintersheimer, J ., joining that dissent .
COUNSEL FOR APPELLANT :
Richard Hoffman
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, #302
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
A. B . Chandler, III
Attorney General of Kentucky
William Robert Long, Jr.
Assistant Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
RENDERED : NOVEMBER 21, 2002
TO BE PUBLISHED
,*Uyrrn1r (~ourf of 'PtrufurkV
2001-SC-0193-MR
RONNIE EARL NORRIS, SR.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE GARY D. PAYNE, JUDGE
2000-CR-0649
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
DISSENTING OPINION BY JUSTICE KELLER
I respectfully dissent from the majority opinion because Appellant did not
properly preserve for appellate review his allegation that the trial court erred when it
sustained the Commonwealth's objections and thereby prevented Appellant from
questioning witnesses regarding his wife's acquittal of incest charges .
In my view, this
case is indistinguishable from Commonwealth v. Farrell ,' where the Appellee alleged
error in the trial court's ruling sustaining the Commonwealth's objection to a question
posed to hirh by his trial counsel, but did "not suppl[y] us with the answer to that
question by means of avowal ."' In Farrell , we unequivocally stated that "a party must
offer an avowal by the witness in order to preserve for appellate review an issue
concerning the exclusion of evidence,"' and, in so doing, we merely reaffirmed existing
'Ky ., 17 S .W.3d 520 (2000).
2Id . at 525.
'Id . at 525 (emphasis in original) .
precedent interpreting the KRE 103 preservation rule. As the record before us does
not contain avowal testimony from either Detective Goode or Appellant's wife, this
allegation of error is not properly preserved for our review. Accordingly, I would affirm
the judgment of the Fayette Circuit Court.
Wintersheimer, J ., joins.
4See Partin v. Commonwealth , Ky., 918 S .W .2d 219, 223 (1996) ("Counsel's
version of the evidence is not enough . A reviewing court must have the words of the
witness .").
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