JOHN ANDERSON v. COMMONWEALTH OF KENTUCKY
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RENDERED: SEPTEMBER 27,200l
TO BE PUBLISHED
I
v:
x&SC-O1 76-MR
APPEAL FROM WAYNE CIRCUIT COURT
HONORABLE EDDIE C. LOVElACE, JUDGE
97-CR-00070, 97-CR-00071, 97-CR-00072, 97-CR-00073, 97-CR-00074
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE STUMBO
AFFIRMING IN PART AND REVERSING IN PART
This appeal is based on a jury verdict from the Wayne Circuit Court convicting
John Anderson of two counts of first-degree rape, four counts of first-degree sodomy,
and one count of sexual abuse of his stepdaughter, C.S.B. The victim testified that
Appellant began having sexual relations with her in 1992 when she was ten years old.
Anderson was sentenced to twenty years for each rape charge, twenty years for each
count of sodomy, and five years for the sexual abuse charge, all to run concurrently.
He appealed to this Court as a matter of right.
Appellant raises four issues on appeal. First, Anderson argues that the trial court
erred by not granting Defendants motion for a continuance. Second, Appellant asserts
that evidence showing the victim’s past sexual experience was erroneously excluded
under the rape shield law. Third, Appellant claims he was denied due process of law
when the trial court allowed the Commonwealth to amend the indictments at the close
of the Commonwealth’s case-in-chief. Last, Anderson argues that the trial court
erroneously refused to grant a motion for judgment notwithstanding the verdict, a
motion for new trial, and a motion for a new trial based on newly discovered evidence.
We take each issue in turn.
I. CONTINUANCE
The facts regarding this argument are somewhat convoluted. On July I, 1997,
the trial judge entered a standard discovery order stating the Commonwealth was to
provide discovery materials, including exculpatory evidence, to defense counsel.
Several weeks later, the Commonwealth complied with this order. In January of 1998,
the defense moved for supplemental discovery based on the prior discovery provided.
The defense asked specifically for all hospital records of the victim and for any reports
done by Dr. Artie Ann Bates. The defendant discovered that an examination was
performed on the victim by Dr. Bates by reading through the CHR records provided by
the original discovery order, but no report had been provided with the discovery.
On February 17, 1998, the trial court heard Defendant’s motion, and made a
docket entry stating, “Order to be entered directing that records, tapes and doctor’s
reports be sent to the court for a review of same. Trial date has previously been set for
June 22, 1998.” No such order, however, was entered. The trial court instead entered
an order, on May 22, 1998, directing the Commonwealth to submit to the defense (not
to the court for an in-camera review) a list of all places the victim had been hospitalized.
On June 12,1998, the Commonwealth moved to set aside the May 22,1998 order
based on the fact that it did not follow the spirit of the February 17, 1998 docket entry.
The Commonwealth asserted defense counsel should have submitted an order to the
court requiring the specific agencies where C.S.B. was hospitalized to deliver the
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records to the court for an in-camera review. In response, defense counsel argued that
she had no way of knowing to which agencies to distribute such an order, since the
Commonwealth had not revealed where the victim had been hospitalized until the
morning of June 12, when the Commonwealth’s Attorney had telephoned her. During
the same conversation, the Commonwealth’s Attorney also informed defense counsel
that he did not have the report of Dr. Bates in his possession, but would fax it to
defense counsel as soon as he received it. He did fax the report to defense
counsel-at 5:30 p.m. As this was a Friday, and defense counsel was out of town at a
training seminar, she was not able to review the report until Thursday, June 18th.
On June 18th, defense counsel filed a motion for continuance, claiming Dr.
Bates’ report was illegible, but from what she could tell it contradicted the findings of Dr.
Cunningham, another doctor whose report had been provided with the original
discovery. Hence, she argued, her trial strategy had changed. Despite her motion, the
trial began on June 22, 1998, and defense counsel orally supplemented her motion for
continuance, but the motion was denied. The trial went on as planned, and the
Commonwealth presented its entire case-in-chief. Defense counsel received the
hospital records at the end of the first day of trial, whereupon it was discovered that the
victim had told a nurse that she had engaged in sexual intercourse with someone other
than the defendant. Defense counsel renewed her motion for a continuance on the
second day of trial, based on the fact that she had just received records that may
contain exculpatory evidence. The trial court again denied her motion.
Appellant argues that the trial court abused its discretion by not granting
Defendant’s motion for a continuance. Appellant asserts he met all of the factors
articulated in Eldred v. Commonwealth, KY., 906 S.W.2d 694 (1994).
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Further,
Appellant argues that the Commonwealth failed to disclose exculpatory information in a
timely manner, and the trial court should have granted a continuance to give defense
counsel adequate time to examine the evidence. After a thorough review of the record,
we agree.
In Eldred, this Court set out seven factors that should be considered by a trial
court when deciding whether to grant a continuance:
(1) The length of delay;
(2) Whether there have been any previous continuances;
(3) The inconvenience to the litigants, witnesses, counsel, and the
court;
(4)
(5)
(6)
(7)
prejudice.
Whether the delay is purposeful or caused by the accused;
The availability of competent counsel, if at issue;
The complexity of the case; and
Whether denying the continuance would lead to any identifiable
u. at 699.
In the case at bar, Defendant moved for a 60-day continuance, the same length
of time we found to be minimal in F u r t h e ru. t h i s c a s e w a s b a r e l y a y e a r o l d
Eldred. ,
when the trial began, this was the first continuance sought, and a two-month
continuance would not have been a substantial inconvenience to any of the parties.
The delay here was not purposeful, or caused by the accused. In fact, one may argue
the delay was caused by the Commonwealth in not timely turning over evidence to the
defense. Further, counsel for the defense stated on the record that it would be difficult
to be an effective counsel because she did not receive the discovery at the proper time.
In addition, this case was complex because of the suspect discovery practices that
occurred, and the defendant clearly suffered prejudice from the denial of the
continuance.
We hold the trial court abused its discretion in not allowing the continuance
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requested by the defendant. Accordingly, the case is remanded for a new trial.
II. RAPE SHIELD LAW
Appellant asserts that evidence showing the victim’s past sexual experience was
erroneously excluded under the rape shield law. The victim was examined by a doctor
at the request of CHR. Dr. Bates, the examining physician, testified at trial that C.S.B.
had a “loose vaginal opening” and concluded that C.S.B. had previously been
penetrated, leaving the jury to believe that it must have been the defendant who
penetrated her. As stated, infra, defense counsel discovered, at the end of the first day
of trial, a report in which the victim told a nurse that she had previously had sex with
another boy. The defense tried to cross-examine C.S.B. regarding this, but the
Commonwealth objected, citing KRE 412, the rape shield law. KRE 412 holds that
evidence of a victim’s sexual experience is not admissible unless it is at issue whether
the defendant is the source of an injury:
(a)
09
Reputation or opinion. Notwithstanding any other provision of law,
in a criminal prosecution under KRS Chapter 510 or for attempt or
conspiracy to commit an offense defined in KRS Chapter 510, or
KRS 530.020, reputation or opinion evidence related to the sexual
behavior of an alleged victim is not admissible.
Particular acts and other evidence. Notwithstanding any other
provision of law, in a criminal prosecution under KRS Chapter 510,
or KRS 530.020, or for attempt or conspiracy to commit an offense
defined in KRS Chapter 510, evidence of a victim’s past sexual
behavior other than reputation or opinion evidence is also not
admissible, unless such evidence is admitted in accordance with
subdivision (c) and is:
Evidence of past sexual behavior with persons other than
(1)
the accused, offered by the accused upon the issue of
whether the accused was or was not, with respect to the
alleged victim, the source of semen or injury;
Evidence of past sexual behavior with the accused and is
(2)
offered by the accused upon the issue of whether the
alleged victim consented to the sexual behavior with respect
to which an offense is alleged; or
Any other evidence directly pertaining to the offense
(3)
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charged.
The trial judge sustained the Commonwealth’s objection on the grounds that a loose
vaginal opening was not an injury under KRE 412(b)(l). Since the adoption of KRE
412, we have not considered this issue, and we do not believe that we have to reach
that question here. Under KRS 510.145, Kentucky’s rape shield law prior to the
adoption of KRE 412 in 1992, a victim’s prior sexual history was inadmissible, unless it
was considered “evidence directly pertaining to the act.” That language is very similar
to the exception found in KRE 412(b)(3), “[alny other evidence directly pertaining to the
offense charged.”
In Barnett v. Commonwealth, Ky., 828 S.W.2d 361 (1992) a case
decided under KRS 510.145, we held evidence of sexual conduct with someone other
than the accused was relevant to show an alternative explanation for a doctor’s
findings. We stated:
Upon review of the arguments of counsel, their briefs, and the
video transcript of the trial, it is apparent that appellant was
convicted based on the child’s testimony and the corroborating
medical testimony of the examining physician. Appellant was
required to defend himself without the benefit of evidence which
could have explained the expert’s physical findings.
M. at 363.
The situation at bar is very similar. The victim was a child, and unlikely to have
any sexual partners. The only partner identified to the jury was Appellant. Therefore,
testimony from a doctor that C.S.B. had a “loose vaginal opening” would lead the jury to
believe that Appellant must have been the one who penetrated C.S.B. and caused her
vaginal opening to be loose. Therefore, under Barnett, it appears that the evidence of
the victim’s past sexual encounter is relevant to provide an explanation for why she had
a loose vaginal opening, and rebut the inference of guilt. This is directly “pertaining to
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the offense charged,” as required by KRE 412(b)(3). As a result, we find that the trial
court erred in refusing to let defense counsel question C.S.B. about her prior sexual
experience. We further note that, on avowal, C.S.B. denied making the statement to
the nurse regarding her prior sexual history. If, on remand, she again denies making
the statement, we want to make it clear that the report may also be admitted as a prior
inconsistent statement under KRE 801A(s)(l), assuming it is properly authenticated per
KRE 902 and satisfies the requirements of KRE 803(6).
Having found that this limited statement to a nurse should be allowed, we find it
necessary to comment on the breadth of the Rape Shield law. As we stated in Barnett,
“[tlhe purpose of the Rape Shield Statute . . . is to insure that [the victim] does not
become the party on trial through the admission of evidence that is neither material nor
relevant to the charge made.” Barnett, 828 S.W.2d at 363. We stand by this sound
principle, and by no means want to expand the law to admit more evidence than
necessary to allow a defendant a fair trial. The exception here is limited to the factual
situation of this case. The victim is a child, likely to be chaste, and the Commonwealth
introduced medical testimony that she had a “loose vaginal opening caused by
penetration.” Therefore, in order for the defendant to rebut the inference that he is the
person who caused the “loose vaginal opening,” he must be permitted to introduce
testimony that C.S.B. made a statement to a nurse that she had sex with another boy.
On this basis we likewise reverse for a new trial.
III. AMENDED INDICTMENTS
Appellant argues that he was prevented from preparing and presenting an
adequate defense because the trial court allowed the Commonwealth to amend Wayne
County Indictment No. 97-CR-00071 from “on or about 1994” to “on or about 1992,”
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and Wayne County Indictment Nos. 97-CR-00072, -00073, and-00074 from reading “on
or about April 26, 1997” to “on or about April, 1997.” Several times throughout C.S.B.‘s
testimony, she stated that the abuse by her stepfather began in 1994 “when she was
ten years old.” However, C.S.B. was actually ten years old in 1992. The trial court
allowed the Commonwealth to amend the indictment to say “on or about 1992.” RCr
6.16 allows an indictment to be amended if there will be no prejudice to the defendant:
The court may permit an indictment, information, complaint or
citation to be amended any time before verdict or finding if no
additional or different offense is charged and if substantial rights of
the defendant are not prejudiced. If justice requires, however, the
court shall grant the defendant a continuance when such an
amendment is permitted.
The amendments to the indictments here did not charge Appellant with any
additional or different offenses, it simply changed the dates. The Defendant maintains
that these events never occurred, whether in 1992 or 1994, or whether on April 26 or
April 17. As such, any sort of alibi defense was not prejudiced by an amendment to an
indictment. Further, these amendments were made before Appellants case-in-chief.
Appellant argues that changing the dates on the indictment “left the defense
unprepared.” Appellant’s Brief at 26. If the defendant felt such an amendment was
prejudicial, though it is our conclusion that it was not, the defense could have moved to
continue the trial in an effort to revamp his defense.
IV. MOTION FOR NEW TRIAL
We are troubled by the events which took place in this case regarding the
subpoena of Dr. Robert Cunningham. Dr. Cunningham was served with a subpoena
issued at the Commonwealth’s request. During jury selection on the first day of trial,
the Commonwealth advised the court that Dr. Cunningham was to be called as a
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witness. It was not until the Commonwealth rested its case that the defense realized
Dr. Cunningham was not going to testify.
Further, there is an affidavit from the doctor, claiming he received a phone call
Wednesday prior to trial informing him that the defendant had pled guilty and that he
was released as a witness. Defendant had, in fact, never pled guilty. Appellant
intimates that the Commonwealth released Dr. Cunningham from his subpoena in an
intentional effort to sabotage the defendants case. The defense was unsuccessful in
serving its own subpoena on Dr. Cunningham, and as a result of the Commonwealth
releasing him, was unable to present his testimony at trial. The defense counsel
received information, after the trial, that the prosecutor admitted to such behavior.
Defendant filed a Motion for a New Trial Based on Newly Discovered Evidence and the
trial judge heard extensive testimony. During the hearing, Dr. Cunningham testified in
direct contradiction to the assistant Commonwealth’s Attorney. As a result, one of them
was indubitably lying. Despite this, the trial judge denied the motion, stating that Dr.
Cunningham’s testimony would not have changed the verdict, as it was not entirely
contradictory to Dr. Bates’ testimony.
At trial, Dr. Bates testified that there was a “reasonable medical probability that
[C.S.B.] had been penetrated.” Dr. Cunningham’s report stated that “[tloday’s exam
neither rules in nor rules out previous penetration.” We believe Dr. Cunningham’s
testimony could have refuted the findings of Dr. Bates. There is further evidence that
C.S.B. gave a different history to Dr. Cunningham, which could have also been used to
impeach the alleged victim.
However, after reviewing the hearing on Defendant’s Motion for a New Trial
Based on Newly Discovered Evidence, we believe that the trial judge did not abuse his
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discretion in declining to grant a new trial. It is clear that in order to warrant a new trial,
the defendant must make a showing of reasonable certainty that a different verdict
would have been reached had the evidence been presented. Carwile v.
Commonwealth, Ky. App., 694 S.W.2d 469, 470 (1985). We believe that Dr.
Cunningham’s testimony, if it had been presented at trial, may have met this burden.
However, in this case, the question we really have to answer is whether this evidence
was “newly discovered .” It is clear that the defense had both reports before trial. The
Court of Appeals has held, and we agree, that to succeed on a Motion for a New Trial
Based on Newly Discovered Evidence, “the defendant must show that the evidence
was discovered affer the trial.” u. at 470. It is by defendant’s own admission that we
know he had both reports in his possession before trial. The evidence the defense
claims to be newly discovered is that the Commonwealth’s Attorney deceitfully kept a
witness from testifying. Even if true, this does not fit the definition of newly discovered
evidence.
Though we decline to reverse on this issue, because the Commonwealth’s
release of a witness is not “newly discovered evidence,” we find it appropriate to
comment on the behavior of the Commonwealth’s Attorney in this case. It appears that
he knew the defense was relying on the Commonwealth’s subpoena and purposefully
did not disclose that he intended to, or had already, released Dr. Cunningham. In its
own defense, the Commonwealth argues that the defense cannot rely on the
Commonwealth’s subpoenas, and cites Commonwealth v. Calloway, Ky., 737 S.W.2d
691, 693 (1987) for this dubious proposition. In Calloway, however, the witness had not
been subpoenaed. The defendant simply relied on the Commonwealth’s Attorney’s
promise to make the witness available. Unfortunately, the witness “absquatulated,” id.
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at 692, and the Commonwealth was unable to produce him. That is quite different from
a situation where, as here, the witness was subpoenaed and was available for trial, but
was excused sua soonte by the party who had requested the subpoena.
Witnesses are not subpoenaed by parties, but by the circuit court clerk. RCr
7.02(l). Indeed, the subpoena issued for Dr. Cunningham was issued by the Clerk of
the Wayne Circuit Court, albeit at the request of the Commonwealth. We believe that
once subpoenaed, the witness is answerable to the court and can only be excused by
the court. In affirming a contempt order against an absent subpoenaed witness in Otis
v. Meade, Ky., 483 S.W.2d 161 (1972) we held that “the subpoena created a
continuing obligation on his part to be available as a witness until the case was
concluded or until he was dismissed bv the court.” M. at 162 (emphasis added).
Any other view taken would require the issuance of multiple subpoenas to a
witness whose testimony is deemed material by more than one party. That means
more work for the parties to request subpoenas for witnesses already subpoenaed by
other parties, more work for the clerk to issue the extra subpoenas, more work for the
sheriff to serve the extra subpoenas, and more inconvenience for the witness who will
be interrupted from his own business to be served with multiple subpoenas to appear at
one trial. Similar rules apply in civil cases. CR 45.01; CR 45.06.
For the reasons stated above, this case is reversed and remanded to the Wayne
Circuit Court for a new trial on all charges in accordance with this opinion.
Lambert, C.J.; Cooper and Johnstone, JJ., concur. Keller, J., dissents by
separate opinion, with Graves and Wintersheimer, JJ., joining that dissent.
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COUNSEL FOR APPELLANT:
Shannon Dupree Smith
Assistant Public Advocate
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:
A. B. Chandler, III
Attorney General of Kentucky
Michael G. Wilson
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
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RENDERED: SEPTEMBER 27,200l
TO BE PUBLISHED
1999-SC-0176-MR
APPELLANT
JOHN ANDERSON
V.
APPEAL FROM WAYNE CIRCUIT COURT
HONORABLE EDDIE C. LOVELACE, JUDGE
97-CR-00070,97-CR-00071,97-CR-00072,97-CR-00073
& 97-CR-00074
COMMONWEALTH OF KENTUCKY
APPELLEE
DISSENTING OPINION BY JUSTICE KELLER
I respectfully dissent from the majority opinion and I would affirm Anderson’s
convictions.
In my opinion, the trial court did not err either by denying Anderson’s
request for a continuance or by preventing defense counsel from questioning the child
victim about her prior sexual history. Accordingly, I write separately to express my
views concerning Parts I and II of the majority opinion. Although I concur with the
majority’s Part IV conclusion that the trial court did not abuse its discretion in denying
Anderson’s motion for a new trial, I disagree with the majority’s gratuitous discussion
concerning the release of witnesses under subpoena. Accordingly, I write separately
concerning the Part IV issues to express my opinion that the Commonwealth had the
authority under our rules of procedure to release Dr. Cunningham from its subpoena.
I. CONTINUANCE
Continuances are the bane of a trial court’s efforts to maintain a current trial
calendar, and, if freely granted, will quickly lead to an unmanageable backlog of cases.
Although the majority appears to believe otherwise,’ trial courts have only a limited
number of available trial dates, and postponements can wreak havoc on a trial court’s
calendar. The reshuffling required by an eve-of-trial continuance typically creates a
“domino effect“ which sacrifices at least two trial dates - the original trial date, which
can no longer be reassigned, and the date to which the continued matter is rescheduled
- and delays justice for other litigants before the court.
Recognizing that this Court has no business micro-managing docket control in
the trial courts, we have held that “[i]t is fundamental for a judge to have the right to
decide when it is appropriate to grant a continuance in any given case.“’ Accordingly,
“[t]he granting of a continuance is always in the sound discretion of the trial judge, and
unless it appears that he has abused that discretion, his determination will not be
‘The majority’s rhetoric is telling. See Majority Opinion at - S.W.3d -,
(2001) (‘JTjhis case was barely a year old when the trial began . . . . ” Id. (emphasis
added). Furthermore, the majority’s characterization of a sixty-day continuance as
“minimal” on the basis of language from Eldred v. Commonwealth, Ky., 906 S.W.2d
694 (1995) ignores no less than four passages from that opinion which base that
characterization, as well as the final result, on the fact that Eldred was tried as a capital
case. See Id. at 699 (“We also note that Appellant’s case was a capital case, with the
death penalty possible, which makes the case qualitatively different.” Id.); L (“The
length of delay in this case was only sixty days, which is rather minimal, particularly in a
death penalty case.” Id. (emphasis added)); !& (“Second, the continuance was the first
sought by anyone, which distinguishes . . . most other death penalty cases, where
numerous continuances are the rule rather than the exception.” Id.); Id. at 700 (“This
case was a death penalty case, which factor alone makes it more complex.” Id.).
*Brutlev v. Commonwealth, Ky., 967 S.W.2d 20, 23 (1998).
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disturbed on appeal.“3
These principles are embodied within RCr 9.04, which governs
the granting of continuances:
The court, upon motion and sufficient cause shown by
either party, may grant a postponement of the hearing or
trial. A motion by the defendant for a postponement on
account of the absence of evidence may be made only upon
affidavit showing the materiality of the evidence expected to
be obtained, and that due diligence has been used to obtain
it. If the motion is based on the absence of a witness, the
affidavit must show what facts the affiant believes the
witness will prove, and not merely the effect of such facts in
evidence, and that the affrant believes them to be true. I f
the attorney for the Commonwealth consents to the reading
of the affidavit on the hearing or trial as the deposition of the
absent witness, the hearing or trial shall not be postponed
on account of the witness’s absence. If the Commonwealth
does not consent to the reading of the affidavit, the granting
of a continuance is in the sound discretion of the trial judge.4
I strongly disagree with the majority’s belief that the trial court abused its
discretion when it denied Anderson’s continuance motions. After engaging in its own
factfinding, and without regard to the contrary beliefs of the trial court, the majority finds
5
that the criteria outlined in Eldred v. Commonwealth warranted a continuance. This
appellate “Monday-morning quarterbacking” flies in the face of the discretion we
allegedly give trial courts in such matters and appears to authorize a sixty-day “freebie”
3Esteo v. Commonwealth, KY., 663 S.W.2d 213, 216 (1983). See also Johnson
v. Commonwealth, KY., 12 S.W.3d 258, 265 (1999) (“Whether to grant a continuance is
generally within the sound discretion of the trial court.” U); Pickard Chrysler. Inc. v.
Sizemore, Ky.App., 918 S.W.2d 736, 740 (1995) (“It is well established that a motion for
postponement of trial lies within the sole discretion of the trial court.” U); Dishman
B, KY., 906 S.W.2d 335, 340 (1995) (“The trial judge has broad discretion
in either granting or refusing a continuance. A reviewing court will not reverse a
criminal conviction unless the trial court abused its discretion in the denial of a
continuance. In order to obtain a continuance, a criminal defendant must show
sufficient cause.” Id. (citations omitted)).
4RCr 9.04.
‘KY., 906 S.W.2d 694 (1995).
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continuance in any criminal case. In my opinion, a careful review of the record refutes
counsel’s unsubstantiated claims that Anderson suffered prejudice from tardy
discovery.
In Eldred, this court identified seven factors which trial courts should consider
when determining, in the exercise of their discretion, whether sufficient cause exists to
grant a continuance.6 In one paragraph of conclusory statements without supporting
analysis or even a passing mention of the appropriate standard of review, the majority
finds that all of the Eldred factors supported a continuance. While a couple of these
factors are largely objective (e.g., the length of delay and whether there have been any
previous continuances), the remainder of the factors involve value judgments by the
trial court, and we should not disturb those judgments unless they are clearly erroneous
and unsupported by substantial evidences7
I believe the majority’s findings as to the Eldred factors are inappropriate given
the standard of review and also highly suspect.
In Eldred, the Court instructed trial
courts to consider “the inconvenience to the litigants, witnesses, counsel, and the
c0urt? Today’s majority ignores all but the first of these when stating, without any
indication from the record that the Court’s calendar would accommodate the proposed
continuance, “a two-month continuance would not have been a substantial
inconvenience to any of the parties.”
The majority’s findings concerning Eldred factors
(4) (5) and (6) explicitly repudiate the appropriate standard of review by engaging in a
new type of “one may argue . . . ” review, address a factor which is relevant only when
6Eldred v. Commonwealth. ma note 5 at 699.
7&Thurman v. Meridian Mutual Ins. Co., KY., 345 S.W.2d 635, 639 (1961).
‘Eldred v. Commonwealth, supra note 5 at 699.
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the continuance is requested in connection with trial counsel’s request to withdraw,g and
remove any doubt that the anointed result is driving the analysis by labeling a serious,
but unexceptional-in-terms-of-preparation-required, child sex abuse case as “complex.”
The majority concludes by decreeing, with no more support than Appellant’s naked
allegation, that “the defendant clearly suffered prejudice from the denial of the
continuance.” Each of these conclusions flies in the face of the discretion this Court
allegedly gives trial courts.
I find the trial court’s denials of Anderson’s motions to continue proper
because
I do not believe Anderson demonstrated “sufficient cause” to justify the continuances.
The crux of Anderson’s pretrial motion for continuance was the Commonwealth’s
Attorney’s alleged failure to provide Dr. Bates’s report to defense counsel in a timely
fashion. However, the Commonwealth supplied the report to defense counsel within
the time constraints outlined in the trial court’s supplemental discovery order, and the
report was faxed to defense counsel the same day that it was received by the
Commonwealth’s Attorney - ten davs prior to the scheduled trial.
Although defense
counsel asserts that the faxed copy provided to the defense was not legible, counsel
found Dr. Bates’s findings clear enough to describe them to the Court five (5) days
before trial when first moving for a continuance.
Anderson’s trial counsel argued that an intervening out-of-town, three-day
training seminar prevented her from reviewing the report until four days before the trial.
Although the trial court initially heard the defense motion for supplemental discovery
91d. at 700 n.2 (“There is no issue in this case concerning Appellant’s counsel, or
any potential substitute counsel, as would arise if there were an attempt to withdraw by
counsel on the eve of trial as a result of a breakdown of communications between
counsel and client.” Id.).
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and orally ruled in favor of the defense four months before trial and entered a written
order a full month before trial, defense counsel first raised this scheduling conflict in
connection with Anderson’s pretrial motion for a continuance.
Neither trial nor
appellate counsel has ever articulated any reason why trial counsel could not prepare
for this evidence between the end of the conference and the beginning of the trial.
While Appellant asserts that he needed additional time to secure an expert witness to
contradict Dr. Bates’s results, we cannot help but notice that the defense made no effort
to contact or subpoena Dr. Cunningham, who had already expressed his contrary
findings in writing.
Nor do I believe that Appellant demonstrated “sufficient cause” to justify a
continuance on the basis of the Commonwealth’s tardy disclosure of C.S.B.‘s medical
records. Defense counsel informed the trial court on the record that she had reviewed
these documents, and the court permitted counsel to recall witnesses and crossexamine them regarding matters found within these documents.
II. RAPE SHIELD LAW
The practical effect of today’s majority opinion is that the protection of Kentucky’s
“Raoe Shield Law” is no lonaer available to vouna victims!
Regardless of the majority’s
lofty declaration that they stand by the “sound principle” that the victim “does not
become the party on trial through the admission of evidence that is neither material nor
relevant to the charge made,” the majority concludes that the trial court erred by failing
to allow defense counsel to question C.S.B. regarding her past sexual behavior. In
order to reach this result, the majority creates a new exception to KRE 412 - the aae
of the victim - which paves the way for the widespread admission of immaterial and
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irrelevant evidence of children’s past sexual behavior whenever any physical findings
support the child victim’s account.
KRE 412 incorporates the sound policy reasons supporting the reciprocal
Federal Rule” and balances competing interests by “protect[ing] alleged victims of sex
crimes against unfair and unwarranted assaults on character without depriving criminal
defendants of evidence needed for a proper defense against charges involving such
crimes.“”
KRE 412, therefore, generally prohibits evidence of an alleged sex crime
victim’s past sexual behavior unless the evidence meets one of the three exceptions set
forth in subsection (b) of the rule. In my opinion, evidence that C.S.B. told a nurse that
she had previously had sex with another boy does not fall within an exception.
Anderson’s trial counsel argued to the trial court that the evidence was
admissible under KRE 412(b)(l) as “evidence of past sexual behavior with a person
other than the accused, offered by the accused upon the issue of whether the accused
was or was not, with respect to the alleged victim, the source of semen or injury.“‘*
loa 2 Weinstein’s Federal Evidence § 412.02[4] (2nd Ed. 2001):
[Tjhe rationale underlying [FRE 4121 is to prevent the
victim, rather than the defendant, from being put on trial.
The low incidence of reports of rape . . . was felt to stem
from the victim’s reluctance to be cross-examined about her
sexual past as was permitted under the common-law
approach.
“1992 Kentucky Evidence Rules Study Committee Commentary to KRE 412.
& also Barnett v. Commonwealth, KY., 828 S.W.2d 361, (1992) (“The purpose . . .
[for] generally prohibiting evidence of prior sexual conduct of a complaining witness is to
insure that the witness does not become the party on trial through the admission of
evidence that is neither material nor relevant to the charge made.” Id.).
12KRE
412(b)(l).
-7-
Although KRE 412(b)(l)‘s “source of semen or injury” exception was the only basis
upon which the defense argued for the admission of this evidence, the majority
sidesteps this question of first impression’3 and instead finds this evidence admissible
under KRE 412(3)‘s residual exception for “any other evidence directly pertaining to the
offense charged.“14
Relying on Barnett v. Commonwealth,‘5 which interpreted the
exception’s broader statutory predecessor,” the majority concludes that the evidence of
13a Robert G. Lawson, 2 $j 2.30 at 110 (3rd
Ken
Ed. 1993) (“Kentucky’s preexisting rape shield law contained no such provision, and
there is no Kentucky case law suggesting what might or might not be admissible under
this exception” Id.).
14KRE 412(b)(3).
“KY., 828 S.W.2d 361 (1992).
16KRS 510.145 (repealed by adoption of KRE 412):
(1)
(2)
(3)
As used in this section, “complaining witness” means
the alleged victim of the crime charged, the
prosecution of which is subject to the provisions of
this section.
In any prosecution under KRS 510.040 through
510.140, or for assault with intent to commit, attempt
to commit, or conspiracy to commit a crime defined in
any of these sections, reputation evidence, and
evidence of specific instances of the complaining
witness’ prior sexual conduct or habits is not
admissible by the defendant.
Notwithstanding the prohibition contained in
subsection (2) of this section, evidence of the
complaining witness’ prior sexual conduct or habits
with the defendant or evidence directly pertaining to
the act on which the prosecution is based, may be
admitted at the trial if the relevancy of such evidence
is determined in the following manner:
(a)
A written motion shall be filed by the
defendant with the court no later than
two (2) days prior to the day of trial, or at
such later time as the court may for
good cause permit, stating that the
(continued.. .)
-8-
C.S.B.‘s prior sexual activity “is relevant to provide an explanation for why she had a
loose vaginal opening, and rebut the inference of guilt” and therefore “is directly
‘pertaining to the offense charged,’ as required by KRE 412(b)(3).” The majority’s
reliance upon the KRE 412(b)(3) exception and Barnett is misplaced.
Anderson never alleged in the trial court that the residual exception offered an
avenue for the introduction of this evidence, and the only issue before the trial court
was whether this evidence was admissible under KRE 412(b)(l)‘s exception for “source
of semen or injury.” By finding the evidence admissible under KRE 412(b)(3), the
majority not only divorces its holding from the issue before the trial court, but also
ignores KRE 412(b)(l)‘s limitation on the nature of admissible source evidence.
The
Barnett Court interpreted a prior statute which allowed the admission of “evidence
directly pertaining to the act on which the prosecution is based” whenever the trial court
found such evidence relevant and not unduly prejudicial or inflammatory.17 Although
16(...continued)
w
defendant has an offer of relevant
evidence of prior sexual conduct or
habits of the complaining witness.
A hearing on the motion shall be heard
in the judge’s chambers. If, following
the hearing, the court determines that
the offered proof is relevant and that it is
material to a fact in issue, and that its
probative value outweighs its
inflammatory or prejudicial nature, the
court shall admit the offered proof, in
whole or in part, in accordance with the
applicable rules of evidence.
Id.
17a KRS 510.145 (repealed by adoption of KRE 412).
-9-
the exception in our prior statute was broad enough to encompass source evidence,18
KRE 412(b)(l) has narrowed the scope of admissible source evidence to situations
where “there is evidence of a connection between the past behavior and a specific
injury suffered in the events involved in the case. Otherwise the exception might
undermine the exclusionary purpose of the general rule.“”
I do not believe KRE 412(b)(l) offers an avenue for the introduction of this
evidence, and I would note that the Circuit Court of Appeals for the Eighth Circuit has
held that a similar physical condition, a “stretched hymen,” did not constitute an “injury”
for purposes of the reciprocal federal rule.2o The Eighth Circuit recognized the
*8Lawson, supra note 13 at § 2.30 at 110 n. 260 (“Kentucky’s preexisting statute
had a broadly stated exception (i.e., “evidence directly pertaining to the act”) that could
have been construed to cover source of semen or injury.” u).
“Richard H. Underwood and Glen Weissenberger, Kentucky Evidence: 2001
Courtroom Manual Ch. 412 at 150 (Anderson Publishing Co. 2000) (emphasis added).
‘“a United States v. Shaw, 824 F.2d 601, 605 (8’h Cir. 1987) cert. denied, 484
U.S. 1068, 98 L.Ed.2d 997, 108 S.Ct. 1033 (1998):
[w]e conclude that the evidence regarding S.A.‘s hymen
did not establish the existence of an “injury.” The witnesses
expressly disavowed finding any evidence of tears to S.A.‘s
hymen, cuts, scratches, bruises, blood, injury to the vaginal
canal, tears that may have healed, or scars. Such findings
would demonstrate infliction of an injury. The absence of all
these indicia, however, strongly suggests that while the
condition of S.A.‘s vaginal area might have changed, she
was not injured. The testimony, in sum, indicated that S.A.‘s
hymen was not intact; it had been stretched; her vaginal
orifice was widened. Even if this physical condition was the
result of sexual intercourse, it is not an injury. Unlike a
situation where the evidence indicates, for example, that
sexual intercourse caused a tearing or bruising of the hymen
or unusual bleeding, the evidence concerning S.A.‘s hymen,
while it may describe a physiological accommodation, falls
short of establishing an injury so as to trigger the
applicability of Rule 412’s injury exception.
(continued.. .)
-lO-
balancing of interests present in the federal rule when rejecting a broad construction of
“injury”:
We recognize that a compelling argument . . . is that it
defies principles of relevancy to allow past sexual behavior
evidence to rebut evidence of a physical consequence that
constitutes an injury (for example, evidence that the
defendant broke the complainant’s nose), while prohibiting it
for evidence of a physical consequence that does not
constitute an injury (for example, evidence that the
defendant caused a stretching of the complainant’s hymen).
The defendant’s need to introduce source evidence is
equally strong regardless of what type of physical
consequence the prosecution contends the defendant
caused when he allegedly raped the complainant. Morever,
it can be argued that the type of physical consequence in
issue has no bearing on the probative value of the past
sexual behavior evidence.
We think that while these evidentiary concerns have
persuasive force when viewed in an isolated context, they do
not withstand the fact that when Congress created the injury
exception to Rule 412, it decided to exclude past sexual
behavior evidence in numerous situations where these same
evidentiary concerns would dictate that the evidence be
admitted. When Congress enacted the injury exception to
Rule 412, it had to weigh competing interests: On one hand,
the defendant’s need to introduce relevant evidence; on the
other hand, the complainant’s interest in not having her
sexual history publicly disclosed and society’s concomitant
interest in having rapes reported and effectively prosecuted.
In balancing these interests, Congress faced a range of
alternatives. At one end of the continuum, Congress could
have done nothing and allowed the admission of past sexual
behavior evidence to rebut the prosecution’s physical fact
evidence whenever the probative value of the past sexual
behavior evidence was not substantially outweighed by its
unfair prejudicial effect. . . .
Congress chose, however, to enact the Rule 412 injury
exception and prohibit past sexual behavior evidence in
numerous situations where such evidence would be highly
probative. Admittedly, by distinguishing between physical
consequences that are injuries and those that are not,
20(...continued)
Id.
-ll-
Congress did not select a point based solely on relevancy
considerations at which to draw the line of admissibility.2’
Although that fact that KRE 412(b)(l) is worded identically to its federal
counterpart suggests that we have reached a similar conclusion regarding the
competing interests, the majority finds that a different exception entirely authorizes the
introduction of evidence relevant to demonstrate the source of any physical
manifestation of child sexual abuse. The majority thus finds such evidence admissible
on the basis of a residual exception despite a specific exclusion for source evidence
which limits itself to source evidence relating to semen and injuries. This is not the
“sparing and careful” use contemplated for KRE 412(b)(3)‘s exclusion:
KRE 412(b)(3) authorizes the use of evidence of past
sexual behavior of a victim when it is “directly pertaining to
the offense charged.” The drafters of the new rule provided
the following explanation for this exception: “It recognizes
the difficulty of anticipating every possible circumstance in
which evidence of prior sexual conduct may have a
necessary and proper role in a case other than as evidence
of an alleged victim’s character.” In other words, it is a
safety valve that is to be administered “carefully and
sparingly without violating the objective of protecting against
unwarranted attacks on the character of an alleged victim.“22
Under the circumstances of this case, the evidence of C.S.B.‘s prior sexual conduct
does not have “a necessary and proper role,” and I cannot agree with the majority’s
conclusion that KRE 412(b)(3) contemplates a broader exception for source evidence
than the one specifically outlined in KRE(b)(l).
The majority’s erroneous construction of the KRE 412(b)(3) exclusion appears to
stem from its application of the holding in Barnett to the factually distinct situation now
*‘1d. at 606-7.
**Lawson, w note 13 at 5 2.30 at 113.
-12-
before us. In Barnett the “examining physician . . . testified to findings of chronic sexual
contact and, without exception, identified appellant as the perpetrator of such
contact.“23
The Barnett majority found the proffered evidence admissible largely
because it cast doubt upon the physician’s identification of Barnett - an identification
the Court characterized as a “branding”:
Omission of the evidence concerning the ongoing sexual
activity between the complaining witness and her brother
was devastating to appellant in liaht of the testimonv of the
examinina bhvsician who expressed findings of chronic
sexual contact and, without objection, identified appellant as
the auilty partv. The bossibility that the victim had engaaed
in onaoina sexual contact with her siblina was not revealed
to the ohvsician durina his examination and interview of the
victim. This revelation mav have caused the ohvsician to
aualifv or omit his brandina of aooellant as the assailant.24
Here, the examining physician, Dr. Bates, testified that C.S.B. had a “loose
vaginal opening,” but did not make a finding of frequent sexual activity or attribute such
condition to sexual intercourse with the Appellant.
Further, Anderson produced no
evidence demonstrating that the conduct suggested in the statement upon which
Anderson wished to cross-examine C.S.B. could have produced these physical
findings. As in Violett v. Commonwealth,*’ ” there is no direct connection between the
evidence of prior sexual activity that directly challenged medical testimony introduced at
23Barnett v. Commonwealth, supra notea15 n e362. m a j o r i t y f o u n d
T h e B r at t t
the portion of the examining physician’s testimony which identified the Appellant as the
perpetrator significant enough to mention it twice in a six (6) paragraph opinion and to
note both times that the evidence was admitted “without objection.”
241d. (emphasis added).
25Ky., 907 S.W.2d 773, 776 (1995).
-13-
trial. In that respect, it is clearly distinguishable from Barnett . . . . “26 The trial court
properly refused to allow defense counsel to question C.S.B. about her alleged prior
sexual history.
III. RELEASE OF WITNESS
I concur with the majority’s Part IV conclusion that the trial court acted within its
discretion in denying Anderson’s motion for a new trial, but I write separately to address
the majority’s misconception that only trial courts may release witnesses from
subpoena.
In reality, the circuit court clerk does not subpoena witnesses. While the clerk
technically issues the subpoena for a witness,27 in actual practice, the clerk merely
signs the subpoena in blank and gives it to the requesting attorney. The attorney then
fills in the blanks and secures service of the subpoena.*’ Accordingly, it is the parties not the clerk - who, through their attorneys, subpoena witnesses.
The information on a subpoena includes the name of the requesting attorney,
together with his or her telephone number,*’ and often a request for the subpoenaed
witness to call the attorney. A subpoena “commands [the] person to whom it is directed
*“ld, at 776.
27& RCr 7.02(l) (,‘A subpoena shall be issued by the clerk.” Id.).
28See Id. (“The clerk shall issue a subpoena, signed but otherwise in blank, to a
party requesting it, who shall fill in the blanks before it is served.” b); RCr 7.02(2) (“A
subpoena for an unmarried infant . . . shall command each person to whom it is
directed to attend with the infant for the ouroose of the infant aivina testimony at a time
and place for the party therein specified ” Id. (emphases added)); RCr 7.02(4) (“A
subpoena may be served by any officer’by whom a summons might be served.” Id.).
29$& RCr Appendix of Official Forms, Form 6, Court of Justice Form AOC-025
(Subpoena) (hereinafter “Form AOC-025 (Subpoena)“).
-14-
to attend and give testimony at the time and place and for the party therein specified.“30
It is for these reasons that “[a] party who has caused a subpoena to be issued may
excuse the witness served from appearing pursuant to its subpoena.“31
If Appellant desired the attendance of Dr. Cunningham at trial, he had the right to
secure his attendance by having a subpoena issued and served upon him. Appellants
right to do so satisfied his right to compulsory process,32 and he did not have the
additional right to rely upon subpoenas issued and served by the Commonwealth.
Since Dr. Cunningham was subpoenaed as a witness Q& by the Commonwealth, the
Commonwealth was authorized to release him from its subpoena.
For the above-mentioned reasons, I dissent from the majority opinion and would
affirm the judgment of the Wayne Circuit Court.
Graves, Wintersheimer, JJ., join this dissent.
30CR 45.01; RCr 7.02(l) (A subpoena “shall command each person to whom it is
directed to attend and give testimony at the time and place specified therein.” Id.); RCr
.‘I Id.).
7.02(3); Form AOC-025 (Subpoena) (“5. q To testify in behalf of
31L. Abramson, Kentucky Practice, Criminal Practice and Procedure § 23.16 (3d
ed. WEST) (“Because the subpoena contains the name of the party seeking the
testimony, the party appears to be able to waive the presence of the witness.” Id. n. 1).
32& State v. Sepchich, 473 S.o.2d 380, 386 (La.Ct.App. 1985) (“The
defendant’s right to compulsory process is the right to request subpoenas for witnesses
and the right to have the requested subpoenas issued by the court. However, a
defendant cannot claim that he was denied the right to compulsory process for
obtaining witnesses on his behalf where he does not seek to subpoena the witnesses.”
Id. (citations omitted); Dean v.Commonwealth, 515 S.E.2d 331 (Va.Ct.App. 1999).
-15
1999-SC-0176-MR
JOHN ANDERSON
V.
APPELLANT
APPEAL FROM WAYNE CIRCUIT COURT
HONORABLE EDDIE LOVELACE, JUDGE
97-CR-70, 97-CR-71, 97-CR-72,
97-CR-73, 97-CR-74, 97-CR-75,
AND 97-CR-76
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER DENYING PETITION FOR REHEARING
The Commonwealth of Kentucky’s petition for rehearing of this Court’s opinion
rendered on September 27, 2001 is denied
Lambert, C.J.; Cooper, Graves, Johnstone, Stumbo and Wintersheimer, JJ.,
concur. Keller, J., would grant petition for rehearing.
ENTERED: January 17,2002.
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