COMMONWEALTH OF KENTUCKY ON DISCRETIONARY REVIEW v. M.G., a child under eighteen AND COMMONWEALTH OF KENTUCKY v. P.A.M., a child under eighteen
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RENDERED:
MAY 10, 2002; 10:00 a.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NOS. 2000-CA-002095-DR
COMMONWEALTH OF KENTUCKY
v.
APPELLANT
ON DISCRETIONARY REVIEW FROM WARREN CIRCUIT COURT
HONORABLE JOHN D. MINTON, JUDGE
APPEAL NO. 99-XX-00022
M.G., a child under eighteen
years of age
AND:
NO.
APPELLEE
2000-CA-002098-DR
COMMONWEALTH OF KENTUCKY
v.
APPELLANT
ON DISCRETIONARY REVIEW FROM WARREN CIRCUIT COURT
HONORABLE JOHN D. MINTON, JUDGE
ACTION NO. 99-XX-00024
P.A.M., a child under eighteen
years of age
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, Chief Judge; COMBS and HUDDLESTON, Judges.
HUDDLESTON, Judge:
The Commonwealth appeals from a Warren Circuit
Court opinion and order reversing a juvenile adjudication and
disposition in which Warren District Court found that M.G. had
committed first-degree sexual abuse and ordered him into the
custody of the Department of Juvenile Justice (DJJ) for placement
in a secure residential treatment facility for juvenile sexual
offenders.
Finding that the district court deprived M.G. of his
constitutional right to confrontation by ejecting him from the
courtroom during the testimony of his alleged victim and that the
procedure constituted clear error, the circuit court remanded for
a new adjudication.
Likewise, the circuit court cited the fact
that both P.A.M. and his lawyer were excluded from this critical
stage of the juvenile proceedings against him as the basis for
reversing an identical disposition imposed on P.A.M. after the
district court found that he committed first-degree sodomy.
Court granted discretionary review.
This
Because the same issue is
raised in both cases, the two appeals have been consolidated.
* * *
M.G. was seventeen years old when the alleged offense
occurred on March 20, 1999.
years old at the time.
R.W., the alleged victim, was ten
M.G. resided with his older sister (his
legal guardian) and her husband, Angela and Carl J.1 (R.W.’s
uncle), and their two young sons. Angela was expecting their third
child.
According to her testimony, R.W. would visit with the J.’s
about three times a week to spend time with their sons while Carl
was working and Angela was housecleaning.
On those occasions, she
would spend the night at their home.
On the evening in question, the J.’s left home for about
an hour to get dinner, leaving R.W. with M.G. for the first time
without adult supervision.
R.W. testified that she was sitting in
a recliner in the living room when M.G. came in the room and sat on
1
To shield the identity of the juveniles involved in these
cases, we use their initials and the initials of their relatives.
-2-
the couch.
M.G. then threw pillows at her and as she removed the
pillows from the floor, he grabbed her by the arm and sat her down
beside him.
When R.W. attempted to move away, M.G. continued
holding her arm.
Allegedly, M.G. then led her back to his room
where he kissed her on the lips and touched her “middle spot,” or
vagina, through her clothing. At that point, the J.’s returned and
M.G. told R.W. to open the door for Angela.
As R.W. exited the
room, M.G. told her not to tell anyone what had just happened, and
she agreed because she “was scared.”
When
the
J.’s
entered
the
home,
“everything
seemed
normal” so they sent R.W. to bed and began to watch a movie.
Shortly thereafter, M.G. went into the bedroom, where R.W. and her
cousins were sleeping, to play with the Sony Playstation.
A few
minutes later, R.W. emerged from the bedroom, saying, “[M.G.] won’t
quit touching me and he keeps on kissing me.”
M.G. denied the
accusation.
On July 14, 1999, a Bowling Green Police Department
detective
filed
a
petition
charging
M.G.
with
second-degree
unlawful imprisonment and first-degree sexual abuse as a result of
his alleged abuse of R.W.
Due to his age at the time of the
offense, M.G. appeared before the juvenile session of the district
court where he entered a plea of not guilty.
The J.’s appeared
with M.G. at his preliminary hearing on July 26, 1999, at which
time their rights as enumerated in Kentucky Revised Statute (KRS)
610.060 were read and explained to them.
Both M.G. and Angela
signed a disclosure form indicating that they were aware of and
understood his rights.
-3-
At the adjudicatory hearing held on August 16, 1999,
three
witnesses
testified,
namely
Carl,
Angela
and
R.W.
Admittedly, the J.’s had no firsthand knowledge of the events which
gave
rise
to
observations
the
and
charges.
statements
allegedly happened to her.
Their
which
testimony
R.W.
made
consisted
concerning
of
what
At the conclusion of their testimony,
the Commonwealth requested that the court conduct an interview with
R.W. and the court granted that request.
Before R.W. testified,
however, the court ordered everyone to leave the courtroom with the
exception
of
one
bailiff,
the
prosecutor
and
M.G.’s
lawyer.
Defense counsel objected at the beginning of R.W.’s testimony, but
only with respect to whether the Commonwealth had established that
“sexual contact” did occur.
The court then called the alleged
victim and proceeded to question her outside the presence of M.G.
R.W.’s account of the incident revealed that M.G. had attempted to
kiss her and had touched her vaginal area with his hand through her
clothing.
R.W.
Counsel for both sides were then permitted to question
While the record is silent on this point, apparently M.G.
returned to the proceeding after R.W. had testified.
No other
witnesses were presented.
Ultimately, the court found M.G. guilty of first-degree
sexual abuse, but dismissed the unlawful imprisonment charge.
addition,
the
court
ordered
M.G.
to
undergo
a
mental
In
health
assessment pursuant to KRS 635.510(2), the results of which were
considered at his disposition hearing.
committed
to
the
custody
of
DJJ
for
M.G. was subsequently
placement
in
a
secure
residential treatment facility for juvenile sexual offenders.
-4-
On appeal to the circuit court, M.G. challenged the
process alleging several errors, most significantly the court’s
abrogation of his constitutional right to be present and confront
the witness against him. In response, the Commonwealth argued that
the issues had not been properly preserved. Relying on the holding
in Dean v. Commonwealth,2 the circuit court disagreed with this
contention,
concluding
that
the
right
to
confrontation
is
a
personal one that cannot be waived by the action or inaction of
counsel. The circuit court dismissed the remaining claims of error
as being without merit.
We granted the Commonwealth’s request for
discretionary review in order to answer the question of whether a
defendant can waive his right to be present during his accuser’s
testimony and determine whether the issue is preserved for review
despite the lack of a contemporaneous objection.
* * *
On April 15, 1999, elementary school officials removed
J.M., P.A.M.’s then eight-year-old brother and alleged victim, from
the classroom for exhibiting inappropriate sexual behavior. School
officials then called Judy Brown, a child abuse investigator
employed
by
the
Department
of
Community
Based
Services,
who
interviewed J.M. and his sister P.M. at the school in the presence
of Deena Holland, the family resource director for the school, and
Susan Rice, an adult who had apparently known the children for some
time and was “present to support” them.
During
the
interviews,
J.M.
accused
his
brother
of
engaging in sexual contact with him on two or more occasions during
2
Ky., 777 S.W.2d 900 (1989).
-5-
the
previous
months.
Specifically,
J.M.
accused
P.A.M.
of
masturbating in his presence and of inserting his penis into J.M.’s
anus.
When Brown questioned J.M.’s sister P.M. regarding these
allegations, she became upset and called J.M. a liar.
At this
point, Brown contacted her supervisor and the police department to
request assistance.
call.
Upon
his
Officer Anton Kahlil Flesher responded to the
arrival,
Flesher
and
Brown
interviewed
together, again in the presence of Holland and Rice.
J.M.
Brown’s
supervisor contacted Kim Vincent, a colleague of Brown’s, to
interview P.A.M., J.M. and their father at the police station.
Later that day, Flesher located P.A.M. at his school and
brought the fourteen-year-old to the police station without an
accompanying parent or guardian.
about
J.M.’s
separately.
allegations;
and
Flesher then questioned P.A.M.
Vincent
interrogated
P.A.M.
P.A.M. made incriminating oral statements to Flesher
and Vincent during these interviews.
At trial, Flesher testified that P.A.M. was “in custody”
at the time of the interview since he was transported to the police
station for questioning, was not free to leave headquarters and did
not have a parent present during the interrogation.
Flesher also
admitted that he did not advise P.A.M. of his rights to an attorney
and to remain silent in accordance with the dictates of Miranda v.
Arizona.3
Vincent also neglected to inform P.A.M. of these rights.
After interviewing P.A.M. at police headquarters, Vincent
transported him to the Warren County Justice Center where they met
Brown
who
3
questioned
P.A.M.
in
a
stairwell
adjacent
to
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
-6-
the
courtroom.
Again, he was questioned without being made aware of
his rights pursuant to Miranda and in the absence of a parent or
guardian.
Brown
reported
that
P.A.M.
made
incriminating
statements4 similar to those he had made earlier to Vincent.
Days
later, Brown questioned P.A.M. again, this time at the home of his
biological
mother.
allegations.
On
that
occasion,
P.A.M.
denied
the
Defense counsel did not move to suppress any of the
statements P.A.M. made to Brown.
Flesher
filed
a
juvenile
complaint
against
P.A.M.
charging him with first-degree sodomy, and he subsequently appeared
in the juvenile session of district court.
hearing, four witnesses testified:
J.M., the alleged victim.
of
his
rights
pursuant
At the adjudicatory
Flesher, Brown, Vincent and
Because Flesher failed to inform P.A.M.
to
Miranda,
the
testimony regarding P.A.M.’s statements.
court
suppressed
his
Over defense objection,
Brown was permitted to relay the content of the out-of-court
statements J.M. and P.M. made to her as well as the substance of
P.A.M.’s incriminating statements.
At the Commonwealth’s request and without defense
objection,
the
court
cleared
the
courtroom
and
proceeded
to
question J.M. P.A.M., his lawyer and the prosecutor were unable to
see or hear what transpired during this critical stage of the
proceedings.
After the court completed its interview with J.M.,
P.A.M., his lawyer and the prosecutor were permitted to reenter the
courtroom at which time the court summarized J.M.’s testimony and
described its impressions of his demeanor while testifying.
4
P.A.M. indicated that he “did him between the legs.”
-7-
P.A.M. was found guilty of first-degree sodomy and, like
M.G., was ordered to undergo a mental health assessment to be
performed by the DJJ for use at the disposition hearing.
counsel did not object to the evaluation.
Defense
Ultimately, the court
ordered P.A.M. committed to the custody of the DJJ for placement in
a juvenile sexual offender treatment program.
On appeal, the circuit court reversed, finding that
P.A.M.’s exclusion from the courtroom during the testimony of his
alleged victim violated his personal right to confrontation and,
because the violation constituted a clear error, it was reviewable
despite the lack of a timely objection.
In addition, the
circuit
court concluded that the statements made by J.M., P.M., the school
officials
and
the
family
members
were
inadmissible
hearsay
declarations as there is no recognized exception to the hearsay
rule for social workers or the results of their investigations.
Because the portion of Flesher’s testimony which was not suppressed
related to the content of statements by others and was admitted to
prove how he acted in response to the statements, the circuit court
determined that the “investigative hearsay” should have also been
excluded.
Finding that the unpreserved issues of whether P.A.M.’s
statements to Brown and Vincent can be suppressed due to their
failure to advise him of his rights pursuant to Miranda and whether
P.A.M. can invoke his right to remain silent with regard to the
preparation of the mental health assessment ordered by the district
court are likely to recur on retrial, the circuit court provided
guidance as to how both issues should be addressed.
-8-
With respect
to the former issue, the circuit court indicated that, if on
retrial the defense moves to suppress the statements P.A.M. made to
the social workers, the district court should examine the totality
of the circumstances surrounding their questioning of P.A.M.,
determine objectively whether P.A.M. was in custody when they
interrogated him and ascertain whether they were acting as agents
of law enforcement at the time of the interrogation.
Confirming that the privilege against self-incrimination
extends to sentencing in any criminal case and that a defendant
cannot be compelled to cooperate with a psychiatrist if he does not
offer psychological evidence of his own, the circuit court found
that, if the case reaches the disposition stage on retrial, P.A.M.
has the right to remain silent during the court ordered evaluation
without a negative inference being drawn from his silence.
It is
that order which is the subject of the Commonwealth’s second
appeal.
* * *
If we are to affirm the circuit court’s reversal of the
district court’s orders, it must be on the ground that a palpable
error was committed by the district court, a concept articulated in
Kentucky Rule of Criminal Procedure (RCr) 10.26.5
On review, we
must determine whether the district court’s error was of such
magnitude that “manifest injustice has resulted.”6
While the
constitutional error standard, a “harmless beyond a reasonable
5
See Sherley v. Commonwealth, Ky., 889 S.W.2d 794, 802
(1994).
6
Id.
-9-
doubt” review, applies when the error has been preserved, it does
not control when there has been no contemporaneous objection.
Although the meaning of “manifest injustice” has never been fully
explained, “it applies where the appellate court ‘believes there
may have been a miscarriage of justice.’”7
In Price v. Commonwealth,8 the Kentucky Supreme Court
noted
that
it
has
“long
recognized
the
importance
of
the
constitutional right of the accused to be present with his counsel
at all stages of a trial.”
That right originated with the Sixth
Amendment to the United States Constitution, commonly referred to
as the Confrontation Clause, which provides as follows:
In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury
of the State and district wherein the crime shall have
been committed, which district shall have been previously
ascertained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for
obtaining
witnesses
in
his
favor,
and
to
have
the
Assistance of Counsel for his defense.
In Faretta v. California,9 the United States Supreme
Court emphasized that the defendant’s right to be present and
confront his accusers is a personal right under the Sixth and
7
Id. (Citation omitted.)
8
Ky., 31 S.W.3d 885, 892 (2000).
9
422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
-10-
Fourteenth
Amendments
to
the
U.S.
Constitution.
“It
is
the
accused, not counsel, who must be ‘informed of the nature and cause
of the accusation,’ who must be ‘confronted with the witnesses
against him,’ . . . .
The right to defend is given directly to the
accused; for it is he who suffers the consequences if the defense
fails.”10
Section 11 of the Kentucky Constitution specifically
preserves the right to confrontation and to be present for its
citizens with similar language:
“In all criminal prosecutions the
accused has the right to be heard by himself and counsel; to demand
the nature and cause of the accusation against him; to meet the
witnesses
face
to
face,
and
to
have
obtaining witnesses in his favor.”
compulsory
process
for
These rights are further
spelled out in RCr 8.28 which, in relevant part, provides that:
“(1) The defendant shall be present at . . . every critical stage
of the trial.”
As noted by Kentucky’s highest court in Commonwealth v.
Wasson,11 Kentucky has afforded protection of individual rights
beyond
that
guaranteed
Commonwealth,12
illustrative.
on
involving
the
federal
the
right
level,
of
citing
Dean
confrontation,
v.
as
In Dean, the Court held that because the right to be
present and confront is personal in nature under Section 11, only
the
defendant
can
waive
this
right,
and
the
waiver
must
be
10
Id., 422 U.S. at 819, 95 S.Ct. at 2533, 45 L.Ed.2d at 572.
11
Ky., 842 S.W.2d 487, 497 (1992).
12
Supra, n. 2.
-11-
sufficiently clear as to indicate a “conscious intent.”13
These
constitutional rights have been made applicable in the context of
state juvenile proceedings.14
This policy has been explicitly
adopted by the General Assembly as indicated by KRS 600.010 (2)(g)
which provides: “Unless otherwise provided, such protections belong
to the child individually and may not be waived by any other
party.”
In the present case, the Commonwealth concedes that the
exclusion of the juveniles was an error but argues that the issue
is not preserved for review because defense counsel failed to
object when the court announced that it was clearing the courtroom.
We disagree.
The error is not harmless as reflected by the
preceding legal authority.
In Dean, the accused was absent during the deposition of
two key prosecution witnesses.15
Although Dean’s counsel attended
the depositions and cross-examined the witnesses, he waived Dean’s
right to be present and the depositions were later read at trial.16
Because there was no indication in the record that it was Dean’s
conscious intent to waive his right of confrontation, his counsel’s
waiver was deemed ineffective and the Court held that deposing the
witnesses in Dean’s absence was a violation of Section 11 of the
13
Id. at 903.
14
In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527
(1967).
15
Dean, supra, n. 2, at 903.
16
Id.
-12-
Kentucky Constitution.17
In reaching that conclusion, the Court
determined that both witnesses’ testimony by deposition “played a
significant role in the overall weight of the evidence against
Dean” and that it was “impossible to predict with certainty what
effect recognition of [Dean’s] right to be present and to confront
[the] witnesses during their live testimony would have had in the
outcome of the case.”18
Here, there is no doubt that the testimony of the victims
had a significant influence on the outcome as, is usually the case
in these instances, they were the only eyewitnesses to the alleged
abuse, their testimony provided the only evidence of sexual contact
which is an essential element of the offense, and the court found
their testimony credible.
In P.A.M.’s case, the court explicitly
acknowledged its reliance on the testimony in question, saying:
“I’m basing my decision on the fact in talking with the child, the
child is extremely believable and I think he has been consistent.
He didn’t hear any of the testimony in here and yet when questioned
he was, his testimony is basically what he had told everybody all
along.”
It is impossible to gauge the impact of the court’s
decision to exclude M.G. and P.A.M. (and his counsel) from such a
17
Id.
18
Id. In Fugate v. Commonwealth, Ky., 62 S.W.3d 15, 20
(2001), the Court, agreeing with Justice Leibson’s dissent in Dean,
held that there was “no reason, constitutional or otherwise, to
create a rule that counsel cannot waive his client’s presence at
depositions” or competency hearings.
Fugate is distinguishable
since it involved a waiver that was explicit, was made by counsel
and did not occur at trial. See also McKinney v. Commonwealth,
Ky., 60 S.W.3d 499, 510 (2001).
-13-
critical stage of the proceedings.
However, it was the most
crucial testimony provided by the Commonwealth’s principal witness
in both cases and with respect to P.A.M., the impact on the fact
finder is definite. The parties were not forewarned of the court’s
intention to proceed in such a manner and, accordingly, the parties
were deprived of the opportunity to confer with counsel regarding
strategy.
There was no overt waiver by counsel in either case, nor
was there any suggestion that the juveniles themselves expressed a
conscious intent to relinquish their right to be present when the
Commonwealth’s principal witness testified or to participate in the
cross-examination of that witness.
the
courtroom
under
these
Barring M.G. and P.A.M. from
circumstances
deprived
them
of
a
fundamental, personal right and constitutes an error which warrants
reversal even in the absence of an objection.
* * *
After conducting extensive public hearings on the matter
of child sexual abuse, the General Assembly responded to the plea
for witness protection, accepting the philosophy that testifying in
a formal courtroom atmosphere at a criminal trial before the
defendant, judge and jury is one of, if not the most intimidating
and stressful aspects of the legal process for children.19
exercise of its legislative policymaking function,
In an
the General
Assembly enacted KRS 421.350 in order to balance these competing
interests.
Pursuant to the statute, the testimony of a child
witness can be presented via videotape recorded before trial, by
closed
19
circuit
television
used
during
trial,
or
by
in-court
Commonwealth v. Willis, Ky., 716 S.W.2d 224, 227 (1986).
-14-
screening of the defendant from the sight and hearing of the
witness with the proviso that consideration must be given to the
defendant’s rights contained in the Sixth Amendment of the U.S.
Constitution and Section Eleven of the Kentucky Constitution.
Whichever method is employed, any infringement on the rights of the
accused must be minimal.20
In upholding the constitutionality of the statute in
question, the Supreme Court made it clear that the Commonwealth
bears
the
“reasonably
emotional
burden
of
persuading
necessary”21
distress
to
that
the
trial
shield
the
often
results
court
child
that
victim
from
it
from
is
the
face-to-face
confrontation with the alleged perpetrator and said that after such
a showing is made and the technical details have been worked out,
“the testimony will be taken with the child screened from the sight
and hearing of the defendant while at the same time the defendant
can view and hear the child and maintain continuous audio contact
with defense counsel.”22
The Court
also emphasized that the
applicable sections of the statute apply only to a narrow class of
witnesses, i.e., children twelve years old or younger who are
victims of sexual offenses.
They impose no restrictions on cross-
examination, allow the fact finder to observe the demeanor of the
20
Id. at 227.
21
In the statute, the standard is “compelling need.”
22
Willis, supra, n. 19, at 227.
-15-
witness and “require that defendant be present to see and hear the
testimony.”23
In
the
proceedings
prerequisites was met.
at
issue,
none
of
the
above
To begin with, the court made no attempt to
determine whether a compelling need existed to shield the alleged
victims.
the
Beyond that, neither juvenile defendant was present for
alleged
victims’
testimony,
nor
was
either
afforded
the
opportunity to see or hear the witnesses, let alone cross-examine
them. In short, the statutory safeguards which the Court in Willis
cited as reasons for classifying the outlined procedures as “the
functional equivalent of testimony in court” were disregarded
entirely in the present cases.
According
to
the
equipment was not available.24
Commonwealth,
the
necessary
video
A lack of technical facilities to
accommodate the mandatory protections for the accused does not
justify completely abridging his/her rights.
If the technology is
not available, the accused cannot be excluded from the courtroom.
“[I]t is of primary import that an accused’s constitutional rights
remain preeminent.”25
* * *
23
Id. (emphasis supplied).
24
We take judicial notice (Ky. R. Evid. (KRE) 201(c)) of the
fact that the Warren County Justice Center, where the proceedings
in question took place, had several rooms with video capabilities.
While district court sessions were recorded on audiotape only,
accommodations could have been made to enable the court to comply
with the statutory requirements.
25
George v. Commonwealth, Ky., 885 S.W.2d 938, 940 (1994).
-16-
On appeal to the circuit court, P.A.M. also argued that
the court erred in permitting Flesher, Brown and Vincent to testify
as to the out-of-court statements made by the alleged victim and
others because the statements constituted inadmissible hearsay.
Defense counsel’s objection to the admission of these statements
was overruled.
As reflected by its decision, the district court
relied directly on the statements attributed to J.M., the alleged
victim, to corroborate his testimony.
Specifically, the court
indicated that it found J.M.’s testimony credible because it was
consistent with his out-of-court statements.
Kentucky Rules of Evidence (KRE) 801(c) defines hearsay
as “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.”
By definition, the statements
in question, i.e., those made to investigators by J.M., his sister,
P.M.,
the
school
declarations.
officials
Hearsay
is
and
family
inadmissible
members,
unless
are
a
hearsay
recognized
exception applies, and no specific exceptions have been argued by
the Commonwealth at any level.
In Souder v. Commonwealth,26 the Supreme Court stated
unequivocally that there is no recognized hearsay exception for
social workers or the results of their investigations.
In so
doing, the Court reaffirmed a prior holding that the testimony of
a social worker is categorized as inadmissible hearsay, again
rejecting the argument that the need for this type of hearsay
evidence should cause it to fall within the residual exception to
26
Ky., 719 S.W.2d 730, 734 (1986).
-17-
the hearsay rule.27
Accordingly, we hold that the statements made
to Brown and Vincent were improperly admitted and must be excluded
on retrial.
Although the court suppressed the portion of Flesher’s
testimony relating to the statements P.A.M. made to him, Flesher
was permitted to testify as to the content of other out-of-court
statements made to him during the course of his investigation.
In
Sanborn v. Commonwealth,28 the Court determined that the extensive
use of such testimony, “offered under the guise of a so-called
‘investigative hearsay’ exception to the hearsay rule[,]” standing
alone required reversal.29
At the outset, the Court said, “hearsay
is no less hearsay because a police officer supplies the evidence.
In
short,
there
is
no
separate
rule,
exception
to
as
such,
which
is
an
hearsay
rule.”30
“Investigative hearsay” is a “misnomer, an oxymoron.”31
The rule
investigative
hearsay
the
is that a police officer may testify about information furnished to
him only when it tends to explain the action taken by the officer
as a result of this information and the taking of that action is an
issue in the case.32
Here, the Commonwealth contends that the
testimony was offered to prove how Flesher acted in response to the
information he received, but it would only be admissible if the
27
Id. at 734.
28
Ky., 754 S.W.2d 534 (1988).
29
Id. at 541.
30
Id.
31
Id.
32
Id.
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motivation for his actions was an issue.
Why Flesher acted the way
he did is not an issue; his testimony must also be excluded when
the case is retried.
P.A.M. also argues that the court should have suppressed
the testimony of Brown and Vincent as it related to the statements
P.A.M. made to them since they failed to inform him of his rights
in accordance with Miranda.
This issue was raised for the first
time on appeal to the circuit court.
Defense counsel did not ask
the district court to suppress the evidence or object to its
introduction on
this basis.
preserved for our review.
Accordingly, the issue is not
While we agree with the circuit court’s
assessment of the factors which must be considered when determining
if a social worker is required to inform juveniles of their
constitutional rights, further elaboration as to this issue is
unwarranted; the issue is moot since we have already excluded the
testimony on separate grounds.
P.A.M.’s final argument, also raised for the first time
on appeal, is that the district court’s order directing him to
participate in a mental health assessment as required by KRS
635.510(3) was improper since he was not advised of his right to
remain silent prior to the evaluation.
While this issue was not
preserved for our review, we offer the following guidance as it
presents a question that is apt to resurface.
In Estelle v. Smith,33 the United States Supreme Court
concluded that “[t]he considerations calling for the accused to be
warned prior to custodial interrogation apply with no less force to
33
451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981).
-19-
[a] pretrial psychiatric examination,” agreeing with this Court
that the defendant’s Fifth Amendment rights were violated when the
trial court admitted at the penalty phase of a trial the testimony
of the doctor who had examined the defendant while he was in
custody.34 The Court went on to hold that when a criminal defendant
does not attempt to introduce any psychiatric evidence, he may not
be compelled to respond to a psychiatrist if his statements can be
used against him at a capital sentencing proceeding.35
That
protection was extended to the sentencing phase of any criminal
case in Mitchell v. United States.36
In Mitchell, the Court also
said that the normal rule in a criminal case is that no negative
inference may be drawn from the defendant’s silence and declined to
adopt an exception for the sentencing phase.37 Consistent with this
authority, if this case reaches the disposition phase on retrial,
P.A.M. has the right to remain silent during the mandatory mental
health assessment performed by DJJ, and no negative inference may
be drawn from his silence.
Because the district court committed palpable error when
it excluded M.G. and P.A.M. (and his counsel) from the courtroom
during perhaps the most critical stage of the proceedings against
them, we affirm the circuit court’s reversal of both adjudications
34
Id. at 467, 101 S.Ct. at 1875.
35
Id. at 468, 101 S.Ct. at 1876.
36
526 U.S. 314, 328, 119 S.Ct. 1307, 1315, 143 L.Ed.2d 424
(1999).
37
Id. at 328, 119 S.Ct. at 1314.
-20-
and remand these cases to Warren District Court for proceedings
consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF AND ORAL ARGUMENT
FOR APPELLEES:
Michael E. Caudill
Warren County Attorney
Timothy G. Arnold
Assistant Public Advocate
DEPARTMENT OF PUBLIC ADVOCACY
Frankfort, Kentucky
Timothy K. Chism, Jr.
Assistant Warren County
Attorney
Bowling Green, Kentucky
ORAL ARGUMENT FOR APPELLANT:
Timothy K. Chism, Jr.
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