DARRYL KEITH BELT v. COMMONWEALTH OF KENTUCKY
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RENDERED: January 8, 1999; 2:00 p.m.
ORDERED PUBLISHED BY SUPREME COURT
OCTOBER 13, 1999; 99-SC-0119-D
C ommonwealth O f K entucky
C ourt O f A ppeals
NOS. 1997-CA-002418-MR and 1998-CA-000686-MR
DARRYL KEITH BELT
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE KEN G. COREY, JUDGE
ACTION NO. 96-CR-001430
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING AND REMANDING WITH DIRECTIONS
APPEAL NO. 1997-CA-002418-MR
AFFIRMING APPEAL NO. 1998-CA-000686-MR
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BEFORE: EMBERTON, GARDNER, AND MILLER, JUDGES.
MILLER, JUDGE:
Darryl Keith Belt (Belt) brings Appeal No. 1997-
CA-002418-MR from a September 11, 1997 judgment of the Jefferson
Circuit Court, and pro se Appeal No. 1998-CA-000686-MR from a
March 3, 1998 order of the Jefferson Circuit Court.
We reverse
and remand for a new trial in Appeal No. 1997-CA-0002418-MR and
affirm in Appeal No. 1998-CA-000686-MR.
Appeal No. 1997-CA-002418-MR
The facts are these:
On June 25, 1996, Belt was
indicted on charges of first-degree sodomy (Kentucky Revised
Statutes) (KRS) 510.070), kidnapping (KRS 509.040), second-degree
assault (KRS 508.020), first-degree wanton endangerment (KRS
508.060), terroristic threatening (KRS 508.080), and fourthdegree assault (KRS 508.040).
victim of all listed offenses.
His girlfriend, A.G., was the
Belt was tried before a jury on
June 24 and 25, 1997, and convicted of the lesser-included
offense of first-degree unlawful imprisonment (KRS 509.020),
fourth-degree assault, and terroristic threatening.
Judgment was
entered on September 11, 1997, wherein Belt received a total
sentence of five years' imprisonment.
This appeal followed.
Belt asserts several points of error.
We begin by
addressing his most compelling argument--that the trial court
committed reversible error when it permitted the Commonwealth to
introduce certain damaging hearsay evidence.
At trial, the court
allowed into evidence a tape recording of Belt being interviewed
by a police detective wherein the detective read the “narrative”
from a uniform citation.
The narrative, essentially an affidavit
from A.G., embodied many of the same incriminating facts
testified to by A.G. at trial.
Belt advances the theory that the
introduction of such evidence was highly prejudicial as it
impermissibly bolstered the victim’s testimony.
In addition, he
asserts that such evidence had no probative value since A.G. had
already testified.
In support thereof, Belt directs us to Smith
v. Commonwealth, Ky., 920 S.W.2d 514 (1996).
In Smith, a police detective was permitted to testify
about statements made to him by the victim of a sexual abuse.
The victim had already testified about the same facts at the
trial.
The Kentucky Supreme Court held that the detective’s
testimony was not within the limited scope of hearsay admissible
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under Kentucky Rule of Evidence (KRE) 801A(a)(2) as a prior
consistent statement.
The Court opined that the testimony was
highly prejudicial as it served only to bolster the victim’s
credibility.
It further explained that such testimony lacked
probative value because the victim had already testified
effectively.
judice.
We believe Smith to be dispositive of the case sub
As in Smith, the testimony in question served only to
bolster A.G.’s testimony and had no probative value because she
[A.G.] had already testified.
Hence, the admission of same
constituted reversible error entitling Belt to a new trial.
Belt also challenges the admissibility of certain
testimony by Dr. Bill Smock, the physician who treated A.G. at
the emergency room.
At trial, Dr. Smock read into evidence the
extensive medical history given to him by A.G. at the hospital
emergency room soon after the assault.
Many of the details
included in the medical history were identical to those testified
to by A.G. at trial.
Belt claims that such prior consistent
statements were inadmissible as they served only to bolster
A.G.’s statement.
We disagree.
Such testimony was admissible
under the well-recognized exception to the hearsay rule for
statements made for the purposes of medical treatment or
diagnosis.
KRE 803(4).
KRE states in relevant part as follows:
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
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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
diagnosis. [Emphasis added.]
Having reviewed the medical record in question, we believe that
most of what is contained therein pertains to the “inception or
general character of the cause” of A.G.’s injuries.
As to any
details not pertaining specifically thereto, we believe the
introduction of same was harmless error.
Ky. R. Crim. P. (RCr)
9.24.
Belt next complains that the trial court erred when it
denied his motion for a mistrial after an emotional outburst
by A.G. in the presence of the jury.
While A.G. was being cross-
examined, she called Belt a “bitch.”
The trial court ordered a
short recess and A.G. began yelling at Belt while the jurors
exited the courtroom.
The trial court held that no harm was
caused by A.G.’s eruption and denied Belt’s motion for a
mistrial.
Nevertheless, the trial court admonished the jury that
such statements by A.G. were not to be considered as evidence.
Belt maintains that because of the trial court’s
refusal to discharge the jury after A.G.’s outburst, he was
“denied a fair trial and due process of law under Sections 2,7,11
and 13 of the Kentucky Constitution and Amendments 5 and 14 to
the United States Constitution.”
We disagree.
It is well
established that the decision to grant a mistrial is within the
trial judge's discretion, and his ruling will not be disturbed
absent the showing of an abuse of that discretion.
Richardson, Ky., 740 S.W.2d 929 (1987), and Jones v.
Chapman v.
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Commonwealth, Ky., 662 S.W.2d 483 (1983).
We are of the opinion
that any harm caused by A.G’s outburst was effectively remedied
by the court’s admonition.
Thus, we perceive no abuse of
discretion in the trial court’s refusal to grant a mistrial.
Last, Belt charges that the trial court erred when it
permitted the prosecutor to read from a certain uniform citation
during the sentencing phase of the trial.
The uniform citation
related to Belt’s prior conviction for trespass wherein A.G. was
the victim.
A statement made by A.G. was included describing how
Belt “hit her in the back of the head and twisted her arm.”
Belt
argues that this statement had no relevance to the trespass
conviction and was, thus, inadmissible.
Although we may not have
ruled as the trial court did, we will not reverse on this issue.
We believe the holding in Mabe v. Commonwealth, Ky., 884 S.W.2d
668 (1994), to be sufficiently broad to allow such statements
during the “truth-in-sentencing” phase of a trial.
Based on the foregoing, the judgment of the Jefferson
Circuit Court in Appeal No. 1997-CA-002418-MR is reversed and
this cause is remanded for a new trial.
Appeal No. 1998-CA-000686-MR
In light of our opinion set forth above, this appeal
may prove moot.
Nevertheless, we shall address same.
The facts enunciated in Appeal No. 1997-CA-1430-MR are
incorporated herein.
to this appeal:
The following additional facts are relevant
On December 18, 1997, Belt filed a motion “to
have credit for all presentence confinement time reflected in
final judgment.”
By order dated January 7, 1998, the trial court
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increased the jail time credit from 120 days to 124 days.
On
February 25, 1998, Belt filed a second motion “to have credit for
all presentence confinement time reflected in judgment.”
In
this latter motion he raised essentially the same arguments
contained in his December motion.
March 3, 1998.
The trial judge denied same on
This appeal followed.
Belt maintains that he is entitled to custody credit
for time he was simultaneously awaiting trial in the instant case
and serving out a sentence on a misdemeanor conviction.
period was from May 9, 1996, through May 7, 1997.
The
The
Commonwealth makes a cogent argument that Belt is precluded from
raising this issue under the doctrines of “case of the law” and
res judicata.
Nevertheless, we will decide this case on its
merits.
We have reviewed the applicable law and the
calculations performed by the Department of Corrections and
conclude that Belt properly received custody credit of 124 days.
KRS 532.120.
He was not entitled to credit for the period set
forth above because the time spent in custody during that period
was related to a separate conviction.
See Houston v.
Commonwealth, Ky. App., 641 S.W.2d 42 (1982).
Hence, the trial
court committed no error by denying Belt’s motion for additional
custody credit.
For the foregoing reasons, the order of the Jefferson
Circuit Court in Appeal No. 1998-CA-000686-MR is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT
IN 1998-CA-000686-MR:
BRIEFS FOR APPELLEE:
A. B. Chandler III
Attorney General
Darryl Keith Belt, Pro Se
Wheelwright, KY
and
BRIEF FOR APPELLANT
IN 1997-CA-002418-MR:
Perry T. Ryan
Assistant Attorney General
Frankfort, KY
Bruce P. Hackett
Daniel T. Goyette
Office of the Jefferson
District Public Defender
Louisville, KY
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