CHARLES SAMUEL McDONALD v. COMMONWEALTH OF KENTUCKY
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RENDERED: APRIL 7, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002168-MR
CHARLES SAMUEL McDONALD
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANN O'MALLEY SHAKE, JUDGE
INDICTMENT NO. 152496
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; DYCHE AND KNOPF, JUDGES.
COMBS, CHIEF JUDGE:
Charles Samuel McDonald, pro se, appeals
from those portions of an Opinion and Order of the Jefferson
Circuit Court entered on September 1, 2004, which denied his
motion to vacate or set aside judgment pursuant to the
provisions of CR1 60.02(e) and (f) -- as well as for his motion
for appointment of counsel.
1
We affirm.
Kentucky Rules of Civil Procedure.
In 1978, a jury convicted McDonald of raping his
stepdaughter, engaging in indecent and immoral practices, and
committing assault and battery against his wife.
He was
sentenced to life imprisonment without parole on the rape
charge; he received lesser concurrent sentences of five years
and twelve months, respectively, on the other two charges.
His
conviction was affirmed by the Kentucky Supreme Court in a
published opinion.2
The motion that is the subject of the present appeal
was filed on August 9, 2004.
McDonald also filed accompanying
motions for appointment of counsel and for leave to proceed in
forma pauperis.
The circuit court granted the motion to proceed
in forma pauperis and denied the other motions.
Although McDonald asserted three different grounds for
relief in his CR 60.02 motion, he has raised only one issue on
appeal.
That issue concerns the introduction into evidence of a
medical record made by Dr. B. Martin, who examined McDonald’s
stepdaughter at the hospital emergency room after the rape.
Dr.
Martin did not testify at the trial, nor did McDonald ever have
an opportunity to cross-examine him.
McDonald argues that his life sentence without parole
for rape should be vacated in light of the recent decision of
2
See McDonald v. Commonwealth, 569 S.W.2d 134 (Ky. 1978)(reh’g denied 1978).
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the United States Supreme Court in Crawford v. Washington, 541
U.S. 36, 124 S.Ct.1354, 158 L.Ed.2d 177 (2004), which held that:
the Confrontation Clause of the Sixth
Amendment forbids admission of all
testimonial hearsay statements against a
defendant at a criminal trial, unless the
witness is unavailable and the defendant has
had a prior opportunity for crossexamination.
Bray v. Commonwealth, 177 S.W.3d 741, 744 (Ky. 2005) citing
Crawford, 541 U.S. at 68, 124 S.Ct. at 1374.
This holding
superseded a prior rule holding that the admission of hearsay
did not violate the Confrontation Clause if the declarant was
unavailable and the statement fell under a “firmly rooted
hearsay exception” or otherwise bore “particularized guarantees
of trustworthiness.”
Ohio v. Roberts, 448 U.S. 56, 66, 100
S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980).
McDonald contends that under Crawford, the medical
report constituted inadmissible hearsay.
He seeks relief under
CR 60.02(e), which allows a court to relieve a party from a
final judgment if:
the judgment is void, or has been satisfied,
released, or discharged, or a prior judgment
upon which it is based has been reversed or
otherwise vacated, or it is no longer
equitable that the judgment should have
prospective application[.]
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CR 60.02(e).
In his original CR 60.02 motion, McDonald also
relied on CR 60.02(f), allowing relief on the basis of “any
other reason of an extraordinary nature[.]”
CR 60.02(f).
We must first consider whether this question may be
addressed pursuant to CR 60.02 (e) or (f).
In general, new
rules pertaining to criminal prosecutions will apply
retroactively only to cases that are pending on direct review or
that are not yet final.
Griffith v. Kentucky, 479 U.S. 314,
328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987).
McDonald contends that Crawford did not establish a
new rule and that it is merely a “clarification” of the meaning
of the Confrontation Clause.
We disagree.
Crawford abandoned
the Roberts test for admissibility of testimonial statements and
represents a marked departure from Roberts, rendering
inadmissible evidence that would have been permitted under
Roberts if it is now determined to be “testimonial” in nature.
Crawford strengthens and expands the scope of the Confrontation
Clause far beyond Roberts by subjecting all testimonial hearsay
to cross-examination.
Thus, Crawford establishes a new rule of
procedure as to admissibility of evidence, but
[n]ew rules of procedure . . . generally do
not apply retroactively. They do not
produce a class of persons convicted of
conduct the law does not make criminal, but
merely raise the possibility that someone
convicted with use of the invalidated
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procedure might have been acquitted
otherwise.
Schriro v. Summerlin, 542 U.S. 348, 352, 124 S.Ct. 2519, 2523,
159 L.Ed.2d 442 (2004)(citations and quotation marks omitted).
Additionally, the medical report in this case did not
constitute the type of “testimonial” evidence that was the focus
of concern in Crawford.
In Crawford, the Supreme Court
carefully distinguished between testimonial and non-testimonial
evidence.
When testimonial declarations are at issue, the Court
concluded that judicial assessments of reliability are not
sufficient to foreclose or to satisfy the Confrontation Clause.
Crawford, 541 U.S. at 61, 124 S.Ct. at 1370.
The text of the Confrontation Clause . . .
applies to “witnesses” against the accused –
in other words, those who “bear testimony.”
“Testimony,” in turn, is typically “[a]
solemn declaration or affirmation made for
the purpose of establishing or proving some
fact.” An accuser who makes a formal
statement to government officers bears
testimony in a sense that a person who makes
a casual remark to an acquaintance does not.
Bray, 177 S.W.3d at 745, quoting Crawford, 541 U.S. at 51, 124
S.Ct. at 1364 (internal citations omitted).
The Crawford court discussed three general categories
of “testimonial” statements:
[1] ex parte in-court testimony or its
functional equivalent--that is, material
such as affidavits, custodial examinations,
prior testimony that the defendant was
unable to cross-examine, or similar pretrial
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statements that declarants would reasonably
expect to be used prosecutorially,
. . .
[2] extrajudicial statements . . . contained
in formalized testimonial materials, such as
affidavits, depositions, prior testimony, or
confessions, [and]
. . .
[3] statements that were made under
circumstances which would lead an objective
witness reasonably to believe that the
statement would be available for use at a
later trial[.]
Id., 541 U.S. at 51-52, 124 S.Ct. at 1364.
At McDonald’s trial, the medical report was introduced
into evidence through the testimony of Valerie Breunig, who was
employed as the assistant director in the Medical Records
Department at Louisville General Hospital.
She testified that
she maintained control and exercised supervision over such
records and that the records were maintained as part of the
routine business of the hospital.
The Commonwealth then moved
for the admission of the medical report into evidence.
Breunig read aloud the following excerpt from the
report:
Chief complaint at the time 6/7/74, 10:16
A.M. was alleged rape. History at that time
was a 13 year old negro female . . . states
at 0545 hours A.M. her step-father
threatened to hurt her mother if she did not
have sexual intercourse with him. He did
not hit her but did penetrate her vagina and
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he ejaculated. Patient is on no birth
control. She states that she has had sexual
intercourse only once before, six months
ago.
. . .
General appearance, 13 years old, negro in
no acute distress, oriented times three, no
external bruises or lacerations noted.
Pelvic, BUS negative, [I’m not sure what
that next word is], laceration and abrasion
at 7:00 o’clock, cervix no discharge, uterus
small anteverted, adenexa negative.
Laboratory findings: Wet prep times 3
negative.
Diagnosis: Alleged rape.
Medication: Was stilbeateral 25 milligram
BID times 5 days.
Compasine five milligrams PO BID 30 minutes
prior to stilbeateral.
And she was to return to the G.Y.N. Clinic
in two weeks.
While defense counsel did not object to the initial
admission of the medical record, he did object later in the
trial when the prosecutor asked McDonald on cross-examination:
“And you’re telling me that it’s a figment of that doctor’s
imagination that [the alleged victim] had abrasions and
lacerations?”
Defense counsel objected on the grounds that the
record was entered only as a shop book entry rather than as a
business record.
clear.)
(The basis for the objection is less than
Before the jurors retired to deliberate, they asked the
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judge whether an interpretation of the medical records would be
available.
The judge informed them that it would not be.
The medical report in McDonald’s case does not fit
within any of the three categories of the testimonial statements
outlined in Crawford as falling within the protection of the
Confrontation Clause.
The report is essentially a routine
record containing the doctor’s own medical observations and an
account of what the alleged victim told him.
course of treatment.
It was made in the
The doctor drew no conclusions as to
whether the alleged victim had been raped, nor did he speculate
as to the identity of the perpetrator.
There is no indication
that the doctor was acting as an agent of the police; the report
was not prepared in response to police questioning but in the
normal course of a medical examination.
The Supreme Court of Kansas recently applied Crawford
to test whether an autopsy report was testimonial in nature.
Its analysis is particularly pertinent to this case:
factual, routine, descriptive, and
nonanalytical findings made in an autopsy
report are nontestimonial and may be
admitted without the testimony of the
medical examiner. In contrast, contested
opinions, speculations, and conclusions
drawn from the objective findings in the
report are testimonial and are subject to
the Sixth Amendment right of crossexamination set forth in Crawford.
(Emphasis added.)
State v. Lackey, 120 P.3d 332, 351-52 (Kan. 2005).
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The medical report in McDonald’s case contained no
opinions, speculations, or conclusions about the patient’s
condition.
The report was routine, descriptive, and
nonanalytical; i.e., it was non-testimonial in nature and thus
did not trigger the Crawford mandate for cross-examination
pursuant to the Confrontation Clause.
In his CR 60.02 motion,
McDonald himself described the statements in the report as “not
particularly incriminating to movant” and stated that the
doctor’s diagnosis of the victim “was not a find [sic] of rape.”
Thus, Crawford is not available for retroactive
application in collateral, post-conviction proceedings.
Additionally, the medical report in this case was not
testimonial evidence implicating the Sixth Amendment rights of
the appellant.
Accordingly, we affirm the opinion and order of the
Jefferson Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT PRO SE:
BRIEF FOR APPELLEE:
Charles Samuel McDonald
Eddyville, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Ian G. Sonego
Assistant Attorney General
Frankfort, Kentucky
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