FRANCISCO BARROSO v. COMMONWEALTH OF KENTUCKY
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RENDERED:
AUGUST 31, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000705-MR
FRANCISCO BARROSO
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
ACTION NO. 99-CR-001976
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
BARBER, COMBS, and TACKETT, Judges.
COMBS, JUDGE:
Francisco Barroso (“Barroso”) appeals from a
judgment of the Jefferson Circuit Court finding him guilty of
first-degree rape and second-degree robbery.
After reviewing the
record on appeal, we vacate and remand for a new trial.
On August 12, 1999, Barroso was charged under a twocount indictment for the rape and robbery of Jennifer Hollenkamp,
a former girlfriend.
The incident which led to his indictment
allegedly occurred on May 22, 1999, at a house in the Lyndon area
of Jefferson County, where John Hall (an acquaintance of Barroso)
lived with his brother.
The house was apparently a “hang-out”
for local teenagers without adult supervision.
Hollenkamp testified that on May 22, 1999, she received
a telephone call from Barroso, stating that he needed to see her.
She agreed to meet Barroso, and the two ultimately went to John
Hall’s house.
After speaking briefly to others in the house,
Barroso and Hollenkamp went to a bedroom and began to kiss.
According to Hollenkamp, Barroso told her that they were going to
have sex and tried to unfasten her shorts even as she told him
“no.”
She further testified that Barroso lost his temper because
she refused to have sex with him.
He struck her on her jaw,
cheekbone, and forehead with a closed fist.
Hollenkamp then
stated that she became dizzy and frightened and that she could
only cry and tell Barroso to stop as he forcibly had sex with
her.
Hollenkamp testified that after the rape, she
immediately left the house and was followed by Barroso.
She told
Barroso that she wanted to go to the home of her friend, Angela
Ormerod, but he told her “no.”
Hollenkamp then testified that
after they had walked approximately one (1) block from the house,
Barroso grabbed her purse from her shoulder, pulled out her
wallet, took the money that was inside the wallet, and threw the
wallet back at her.
On the night of the incident in question,
however, Hollenkamp told a police detective that Barroso had
taken the money from her wallet before they left the bedroom.
Hollenkamp further testified that Barroso walked back to Hall’s
house while she continued walking to Ormerod’s home.
Later that
night, Angela’s mother found out about the incident and notified
the police.
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Barroso’s testimony was that he and Hollenkamp went to
John Hall’s house and began kissing in a bedroom.
He further
testfied, however, that Hollenkamp willingly had sex with him and
that he did not strike her.
Barroso also testified that he and
Hollenkamp left the house together and that they decided to get
something to eat.
He recalled asking Hollenkamp if he could
borrow some money.
She responded by removing money from her
wallet and counting it, explaining to Barroso that she needed it
to buy a birthday present for a friend.
Barroso admitted that he
grabbed the money from her hand and refused to give it back.
When Hollenkamp tried to take the money from him, he pushed her
away with his elbow.
Barroso testified that Hollenkamp then
began screaming at him and chased after him before she finally
decided to walk away.
Barroso stated that he then returned to
John Hall’s house.
On May 24, 1999, Barroso was arrested and was charged
with first-degree rape and second-degree robbery.
On July 6,
1999, the charges against Barroso (who was a juvenile at the time
of the incident) were transferred from the juvenile division of
Jefferson District Court to the Jefferson Circuit Court.
On
January 13, 2000, a jury convicted Barroso on both the rape and
robbery charges and recommended a sentence of ten (10) years for
the rape conviction and a sentence of five (5) years for the
robbery conviction with the sentences to run concurrently.
On
January 21, 2000, Barroso filed a motion for Judgment
Notwithstanding the Verdict on both convictions.
This motion was
denied by the court, and on February 23, 2000, a Judgment of
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Conviction and Sentence was entered in accordance with the jury’s
recommendations.
This appeal followed.
Although Barroso raises several issues on appeal, we
shall address only two (2) for purposes of our review.
We first
consider whether the trial court abused its discretion in not
allowing Barroso to have access to certain mental health records
of Hollenkamp.
In particular, Barroso contends that the court
erred in conducting an in-camera review of these records without
the presence of his defense counsel.
On September 15, 1999, in compliance with a discovery
request, the Commonwealth provided Barroso an investigative
report which stated that Hollenkamp had previously been
hospitalized “for depression ... because she had broken up with
her boyfriend and her best friend had moved away.”
The
Commonwealth also provided Barroso medical records from the night
of the incident in question.
Among these records was a statement
made by Hollenkamp that she had been hospitalized for depression
and that she was currently taking at least three (3) antidepressant medications.
Based upon this information, counsel for Barroso filed
a motion to compel the production of Hollenkamp’s mental health
records, arguing that these records could bear upon her
credibility as a witness.
On January 11, 2000, the trial court
questioned Hollenkamp about her past hospitalization and then
granted the motion for the records to be produced.
The court
received the records the next day and reviewed them during a
lunch recess.
The court then told both parties that he had
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received and reviewed the records and that -- with the exception
of one minor incident -- he had found nothing germane to the case
therein.
Accordingly, the court denied Barroso’s motion to
review the records.
As part of a motion for a new trial, Barroso
argued that Eldred v. Commonwealth, Ky., 906 S.W.2d 694 (1994),
cert. denied, 516 U.S. 1154 (1996), required an in-camera review
of the records in the presence of defense counsel and that the
court erred in not allowing the defense to have access to the
records.
“It is clear that the government must produce evidence
that is favorable to the accused and material to the question of
his guilt and punishment.”
Id. at 701, citing Pennsylvania v.
Ritchie, 480 U.S. 39, 55-56 (1987).
“Information regarding the
credibility of a prosecution witness has been recognized as the
sort of exculpatory evidence which is subject to disclosure.”
Id. at 701-02, citing Ritchie, supra, at 56-57; and Rolli v.
Commonwealth, Ky. App., 678 S.W.2d 800, 802 (1984).
In Eldred,
supra, the Kentucky Supreme Court stated that where a trial court
is “‘[confronted] with articulable evidence that raises a
reasonable inquiry of a witness’s mental health history, [the]
court should permit a defendant to discover that history’”
because of its potentially exculpatory nature.
Id. at 702,
quoting Illinois v. Dace, 449 N.E.2d 1031, 1035 (1983).
However,
the Eldred court qualified this assertion by stating that “the
defendant is not entitled to unlimited access or use of the
evidence sought.”
Id.
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If a prosecution witness raises an issue involving a
privacy interest such as the physician-patient privilege,
an in-camera hearing shall be conducted by
the trial court in the presence of the
prosecutor and defense counsel to determine
which information would be both relevant and
material to the witness’s credibility.
Id. (Emphasis added.)
Any privacy interest raised by a
prosecution witness may be overcome “where the critical nature of
the evidence sought by the defendant outweighs the potential for
harm caused by the resulting invasion of the victim’s privacy[.]”
Id. at 701.
The language allowing presence of defense counsel is
mandatory rather than permissive, leaving little room for a
court’s exercise of discretion.
In this case, we hold that the trial court abused its
discretion in denying the discovery sought by Barroso.
By
ordering the production of Hollenkamp’s mental health records for
review, the trial court agreed that Barroso had presented the
requisite amount of “articulable evidence” needed to meet the
threshold requirement of Eldred, supra.
At that point -- in
accordance with the unequivocal language of Eldred, supra -- the
trial court was required to conduct an in-camera hearing “in the
presence of the prosecutor and defense counsel” to determine
which information in those records -- if any -- might bear on
Hollenkamp’s credibility.
In unilaterally reviewing the records
to determine their relevance and materiality, the trial court
failed to follow the explicit instructions of Eldred, supra.
The Commonwealth cites Hodge v. Commonwealth, Ky., 17
S.W.3d 824 (2000), as supportive of its position that in a case
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such as this, a trial court is not required to conduct an incamera hearing in the presence of counsel.
We disagree.
Hodge,
supra, reveals only that the trial judge in that case “pursuant
to Eldred v. Commonwealth ... reviewed the records in camera and
determined that they did not contain information sufficiently
relevant to overcome the psychotherapist-patient privileges....”
Id. at 843. (Citation omitted.)
In and of itself, this language
does not disclose or indicate whether counsel was present at the
hearing.
Moreover, this language alone does not intimate that
the Supreme Court intended to abandon the requirements of Eldred,
supra.
We restrict our holding solely to the error of the
trial court in denying the discovery of Hollenkamp’s mental
health records without venturing an opinion as to whether those
records might contain information sufficiently relevant to
overcome a claim of privilege.
made by the trial court.
That determination is yet to be
However, this is a case in which the
primary evidence necessarily involves conflicting testimony by an
alleged victim and a defendant; therefore, the credibility of
those witnesses assumes an enhanced significance.
Barroso has
met his burden to support his discovery requests and is entitled
to an in-camera hearing conducted in the presence of his counsel.
Accordingly, we vacate Barroso’s convictions and remand for a new
trial.
See Eldred, supra, at 703.
Barroso also contends that the court erred in allowing
the Commonwealth to impeach his testimony with a prior juvenile
adjudication pursuant to Kentucky Revised Statutes (“KRS”)
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610.320(4).
At trial, counsel for Barroso requested that the
Commonwealth be prevented from eliciting testimony that Barraso
had pled guilty to receiving stolen property in juvenile court in
March 1997.
Defense counsel argued that KRS 610.320(4) was
inapplicable to Barroso’s guilty plea because it became effective
in July 1997 and, accordingly, could not be applied
retroactively.
The trial court disagreed and allowed the
juvenile adjudication to be admitted for impeachment purposes.
On cross-examination by the Commonwealth, Barroso
testified that he had pled guilty to receiving over $300 dollars
in stolen property in juvenile court in March 1997.
He also
testified that receiving over $300 dollars in stolen property was
considered a felony offense.
KRS 610.320(4) provides that:
Subject to the Kentucky Rules of Evidence,
juvenile court records of adjudications of
guilt of a child for an offense which would
be a felony if committed by an adult shall be
admissible in court at any time the child is
tried as an adult, or after the child becomes
an adult, at any subsequent criminal trial
relating to that same person. Juvenile court
records made available pursuant to this
section may be used for impeachment purposes
during a criminal trial, and may be used
during the sentencing phase of a criminal
trial. However, the fact that a juvenile has
been adjudicated delinquent of an offense
which would be a felony if the child had been
an adult shall not be used in finding the
child to be a persistent felony offender
based upon that adjudication.
The Commonwealth concedes that KRS 610.320(4) was applied
retroactively to Barroso’s juvenile court adjudication.
KRS 446.080(3) provides: “No statute shall be construed
to be retroactive, unless expressly so declared.”
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“This is a
principle fundamental to statutory construction in Kentucky.”
Kentucky Industrial Utility Customers, Inc. v. Kentucky Utilities
Company, Ky., 983 S.W.2d 493, 499 (1998).
“The courts have
consistently upheld this admonition and have declared that there
is a strong presumption that statutes operate prospectively and
that retroactive application of statutes will be approved only if
it is absolutely certain the legislature intended such a result.”
Commonwealth Dept. Of Agriculture v. Vinson, Ky., 30 S.W.3d 162,
169 (2000). (Emphasis added.)
We have discovered no evidence of
a clear legislative intent that KRS 610.320(4) was to be applied
retroactively.
Therefore, we hold that the trial court erred in
allowing the Commonwealth to impeach Barroso’s testimony with his
guilty plea from a prior juvenile adjudication.
Having concluded that Barroso is entitled to a new
trial, we need not address the additional issues which he has
raised.
Accordingly, the judgment of the Jefferson Circuit Court
is vacated, and the case is remanded for proceedings consistent
with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Bruce P. Hackett
Daniel T. Goyette
Louisville, KY
Albert B. Chandler III
Attorney General of Kentucky
Vickie L. Wise
Assistant Attorney General
Frankfort, KY
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