WARNER (EARL) VS. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: NOVEMBER 6, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001734-MR
EARL WARNER
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL, JR., JUDGE
ACTION NO. 07-CR-00853
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON, CLAYTON AND DIXON, JUDGES.
CLAYTON, JUDGE: This is an appeal from a conviction of robbery and rape in
the Fayette Circuit Court. The appellant, Earl Warner, brings his appeal based
upon evidence he contends should have been suppressed as well as other errors he
argues were made by the trial judge.
For the reasons that follow, we affirm Warner’s conviction.
BACKGROUND INFORMATION
Warner was indicted on June 26, 2007, for first-degree rape and firstdegree burglary stemming from a crime that occurred on December 15, 1988. It
was alleged at trial that Warner entered the home of E.G. in Fayette County with
the intent to commit a crime. While in E.G.’s home, it was alleged that Warner
raped her.
On the night of the incident, E.G. went to the University of Kentucky
Medical Center for treatment. Dr. Charles Eckerline examined her and was
allowed at trial to testify regarding the comments E.G. made at that time.
Lt. James Curless testified that E.G. had reported to police that she
had been raped by a black male who had forced his way into her house. E.G. was a
seventy-four-year-old woman at that time living alone. During the
contemporaneous investigation, a fingerprint of the intruder was obtained at E.G.’s
house. It was from a piece of broken glass. On February 23, 2005, the fingerprint
was matched to Warner.
In January of 2006, Lt. Curless obtained a search warrant in order to
get DNA from Warner to be tested against the DNA evidence in E.G.’s rape kit.
Warner went to the police station of his own accord. Lt. Curless testified that there
was no reason Warner should have believed he was under arrest at the time of the
ensuing conversation between the two. In fact, Curless stated that he informed
-2-
Warner on several occasions during the conversation that he was not under arrest.
Curless read Warner his Miranda1 rights.
Lt. Curless showed Warner a lab report that his DNA was found on
E.G.’s slip that she was wearing on the night of the incident. Lt. Curless finished
the interview and allowed Warner to leave.
The trial court found that Warner had been Mirandized and that he
had been informed by Lt. Curless that he was not under arrest during his interview.
Warner stated that he did not remember the night in question due to his drug use at
that time.
At trial, Warner contended that his rights had been violated by the
questioning of Lt. Curless. The trial court found that the interview by Lt. Curless
was non-custodial. The trial court then overruled Warner’s motion to suppress the
statements he made during the interview.
On February 1, 2008, Warner moved the trial court to suppress the
statements made by the victim during her examination by medical personnel on the
night of the incident. Relying on Heard v. Com., 217 S.W.3d 240 (Ky. 2007), the
trial court found that a medical doctor could testify at trial as to what the victim
had said during an examination based upon the medical exception to the hearsay
rule. Kentucky Rules of Evidence (KRE) 803(4).
1
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694(1966).
-3-
The trial court excluded certain statements made by E.G. during her
examination that did not pertain to her symptoms, pain, or cause of her seeking
medical treatment.
After Warner was convicted, he brought this appeal contending that
the trial court erred in not suppressing his statements made to Lt. Curless during
his interview and the statement E.G. made during her medical examination on the
night of the incident. For the foregoing reasons, we affirm the decision of the trial
court.
STANDARD OF REVIEW
In a direct appeal from circuit court, an appellate court must review
evidentiary rulings made by the trial court under an abuse-of-discretion standard.
“[A]buse of discretion is whether the trial judge’s decision was arbitrary,
unreasonable, unfair or unsupported by sound legal principles.” Woodard v. Com.,
147 S.W.3d 63, 67 (Ky. 2004), citing Goodyear Tire and Rubber Co. v. Thompson,
11 S.W.3d 575, 581 (Ky. 2000).
DISCUSSION
The trial court found that the statement by Dr. Eckerline should not be
suppressed based upon KRE 803(4), which provides that a statement made:
for purposes of medical treatment or diagnosis and
describing medical 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.
-4-
Warner, however, contends that the statement was testimonial and that
his right to confront the witness was denied. E.G. died on January 4, 2004, and
therefore was not available to testify at trial. In Crawford v. Washington, 541 U.S.
36, 124 S.Ct. 1354, 158 L.Ed. 177 (2004), the state played a tape recording made
by Sylvia, the wife of the defendant Michael Crawford. Michael Crawford stabbed
a man who was allegedly trying to rape Sylvia. Sylvia’s tape-recorded statement
to the police described the stabbing but she did not testify at trial because of the
marital privilege which bars a spouse from testifying without the other spouse’s
consent. The Supreme Court then considered whether the Sixth Amendment
Confrontation Clause was violated by the failure of having the accused confront
the witnesses against him. The Court held that the Sixth Amendment right of
confrontation applied to both in court and out of court statements of witnesses.
The Court accepted the dictionary definition of testimony as “typically ‘a solemn
declaration or affirmation made for the purpose of establishing or proving some
fact.”’ Id. at 51. The Court held that “[s]tatements taken by police officers in the
course of interrogations are also testimonial under even a narrow standard.” Id. at
52. However, if the hearsay at issue is nontestimonial, then states had flexibility to
develop their own hearsay rules. The Supreme Court declined to further define
testimonial evidence.
However, in Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266,
2273, 165 L.Ed 2d 224 (2006), the Supreme Court opined that in Crawford they
had “set forth ‘various formulations’ of the core class of ‘testimonial’ statements . .
-5-
. but found it unnecessary to endorse any of them, because ‘some statements
qualify under any definition[.]”’ Clearly again, statements made in the course of
police interrogation were testimonial statements; however, statements made to
enable police to meet an ongoing emergency and statements given by someone
who is not acting as a witness were not testifying. Therefore, the hearsay rules
apply.
The Kentucky Supreme Court in Heard, 217 S.W.3d 240, addressed
whether a doctor’s testimony, which would include statements given by victims
who seek medical treatment, is an exception to the hearsay rule. The Kentucky
Court held that it was. Heard also held that “[s]tatements are nontestimonial when
made in the course of police interrogation under circumstances objectively
indicating that the primary purpose of the interrogation is to enable police
assistance to meet an ongoing emergency.” Id at 243. In the case sub judice, Dr.
Eckerline and the nurse testified about what E.G. had told them concerning the
rape during her course of treatments. These statements were not from individuals
who were employed by the police or a part of the investigation. Therefore, we
agree with the trial court that the defendant’s right of confrontation was not
violated by allowing the testimony of Dr. Eckerline into evidence.
Next, Warner contends that the trial court erred in denying his motion
to suppress the statements he made to Lt. Curless while being interviewed. The
trial court determined that these statements were made by Warner when he was not
-6-
in custody. In fact, although not required to, Lt. Curless informed Warner of his
rights under Miranda.
While Warner was being interviewed at the police station, Lt. Curless
informed him that he was free to leave at any time. There is no doubt from the
conversation between Lt. Curless and Warner that the former was trying to elicit
information from Warner. He specifically told him that he had DNA evidence
from E.G.’s person and clothing and that he was investigating Warner for the rape
of E.G.
While Warner contends that he did at one point say he thought he
needed a lawyer, it does not appear from the conversation that Warner would
believe he was in a custodial situation where he was not free to leave. The mere
mention of needing a lawyer is not sufficient to require officers stop questioning a
suspect. Davis v. U. S., 512 U.S. 452, 458-462, 114 S.Ct. 2350, 2354-2357, 129
L.Ed. 2d 362 (1994).
Warner also argues that the trial court abused its discretion when it
imposed a consecutive sentence, rather than a concurrent one, as was
recommended by the jury. He also asserts that the trial court erred in enhancing
his sentence from fourteen to eighteen years. The trial judge’s reasoning regarding
the imposition of an enhanced sentence was the age of the victim and the fact that
Warner was under the influence of drugs at the time of the crime.
In Dotson v. Com., 740 S.W.2d 930 (Ky. 1987), the Court held that a
trial judge could determine at the time of the sentencing whether to run the
-7-
sentence concurrently or consecutively. Warner’s argument that Apprendi v. New
Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000), prohibits the trial
judge running the sentences consecutively also fails since Oregon v. Ice, 129 S.Ct.
711, 172 L.Ed. 2d 517 (2009), clearly set forth that Apprendi’s holding is
inapplicable in consecutive/concurrent sentencing situations.
Finally, Warner argues that he should not be required to register as a
sex offender due to his conviction as such violates the Ex Post Facto Clause of the
U.S. Constitution. The Kentucky Supreme Court, however, has held that the sex
offender registration and notification statutes are constitutional. See Martinez v.
Com., 72 S.W.3d 581, 584 (Ky. 2002), and Hyatt v. Com., 72 S.W.3d 566, 572-574
(Ky. 2002). Thus, we affirm the trial court on this issue as well.
Based upon the discussion set forth above, we affirm Warner’s
conviction.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Edward Dove
Lexington, Kentucky
Jack Conway
Attorney General of Kentucky
Susan Roncarti Lenz
Assistant Attorney General
Frankfort, Kentucky
-8-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
