KEITH GUY V. COMMONWEALTH OF KENTUCKY
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RENDERED : JANUARY 22, 2004
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2002-SC-000412-MR
KEITH GUY
V.
7
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE GARY D. PAYNE, JUDGE
CRIMINAL NO . 00-CR-00070
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant stands convicted for the kidnapping and first degree sodomy of L.S., a
minor child under twelve (12) years of age . Appellant waived jury sentencing, choosing
instead to rely upon the Commonwealth's sentencing recommendations . The trial court
followed these recommendations, fixing Appellant's punishment at thirty (30) years for
the sodomy conviction and ten (10) years for kidnapping, with each sentence to run
concurrently . Appellant now appeals to this Court as a matter of right.
At trial, Appellant testified that he invited L .S. to accompany him for an overnight
stay so that the young girl might get to know his wife and children . Plans were also
made to visit a local theme park the next morning . The grandmother of L.S. gave her
consent, and Appellant picked up L.S. for the evening . Unbeknownst to L .S. or her
grandmother, however, Appellant's wife strongly objected to this overnight visit . In fact,
opposition to these plans led Appellant's wife to ask for the house key back from her
husband. Therefore, instead of driving L.S . to his home or calling off the visit altogether,
Appellant took the child to a vacant apartment where the sodomy allegedly occurred .
According to L.S ., upon arriving at the vacant apartment, Appellant expressed
concern that their clothing might aggravate his son's allergies . For this ostensible
reason, L.S . testified that she and Appellant showered together . Afterwards, Appellant
provided L .S . with an intoxicating mixture of wine and grape soda, and encouraged her
to drink quickly . L.S. testified she became dizzy and passed out, but later awoke to find
Appellant orally sodomizing her. L.S . kicked free of Appellant, dressed herself, then
demanded to be taken home . Following a rambling, all-night drive through the
countryside, Appellant eventually complied, dropping L.S. off at her great-grandmother's
house .
I. Standard of Review
Appellant raises a number of unpreserved errors on this appeal, and in lieu of
palpable error review, Appellant urges this court to apply the somewhat more deferential
standard applicable in death penalty cases. See KRS 532 .075(2) (requiring the
Supreme Court to consider "any error enumerated by way of appeal" whenever a death
sentence is imposed) . To support his position, Appellant equates his thirty (30) year
sentence to the death penalty, positing that the combination of his sentence and his age
means he will likely die behind bars .
Although Appellant's concerns regarding his future prospects are valid, the death
penalty differs markedly from his punishment in both severity and finality . See Beck v.
Alabama , 447 U .S . 625, 637, 100 S .Ct. 2382, 65 L.Ed .2d 392 (1980) . Execution allows
no reprieve, whereas Appellant's sentence, although lengthy, is not immutable .
2
Accordingly, the extraordinary safeguards associated with death penalty review are not
herein required .
II. Allegations of Judicial Mistake and Misconduct
Appellant claims that several "judicial errors" violated his due process rights and
denied him a fair and impartial trial. Appellant's first allegation involves a letter he sent
to presiding Fayette Circuit Judge Gary D. Payne prior to trial . In this letter, Appellant
expressed unease over the preparation of his defense counsel . Appellant now
contends that Judge Payne failed to address this concern . The record, however, shows
otherwise .
The circuit court received Appellant's letter on the Friday before trial . On
Monday, before commencing voir dire, Judge Payne asked Appellant if he still had
misgivings regarding his representation in this case . Appellant answered : "Not so much
as a concern, Your Honor. I think they can do an adequate job, you know, but it was
just some things that we had went over that I brought to their attention. And since then I
think that we've pretty much covered it." The judge further questioned Appellant and
counsel, extensively vetting this issue before proceeding with trial . We therefore find no
basis for Appellant's claim that Judge Payne ignored this matter . Nor do we find error in
the judge's decision to allow defense counsel to continue in their representation of
Appellant, for Appellant waived this issue prior to trial .
Appellant next alleges that Judge Payne worked and played games on a
computer throughout trial, depriving Appellant of the judge's undivided attention. As
further evidence of lax trial oversight, Appellant contends that the judge neglected to
preserve four juror communications as part of the record on appeal. According to
Appellant, this behavior created a structural defect in the conduct of the entire trial,
calling into question the reliability of the verdict and undermining confidence in the
judiciary .
Our review of the record reveals that Appellant's claims are largely
unsubstantiated . For example, although the videotapes of trial do show Judge Payne
using a computer on several occasions, the tapes disclose nothing more . Likewise,
from the record we are unable to determine if Judge Payne ever received
communications from jurors during trial, let alone misplaced them . Civil Rule 75.13
provides a means for documenting such events not otherwise recorded at trial, and
defense counsel has not availed herself of this procedural device .
After paring away the unsupported allegations, we are left to consider only
whether Judge Payne's computer usage during trial created a structural error, depriving
Appellant of the "'basic protections' without which `a criminal trial cannot reliably serve
its function as a vehicle for determination of guilt or innocence."' Neder v. United States ,
527 U .S . 1, 8-9, 119 S .Ct. 1827, 144 L .Ed .2d 35 (1999), quoting Rose v. Clark, 478
U.S . 570, 577-78, 106 S.Ct. 3101, 92 L.Ed .2d 460 (1986) . We think not. Appellant has
not detailed any specific harm stemming from the judge's computer usage, nor has
Appellant described any instance where this practice impeded Judge Payne's ability to
effectively preside at trial.
As a final allegation of judicial error, Appellant asserts that Judge Payne failed to
conduct a competency hearing, sua sponte, after defense counsel complained that the
child victim appeared sedated during her testimony . Not only is this issue unpreserved,
but counsel has come dangerously close to misrepresenting the facts . In her brief,
counsel for Appellant implies that this issue was raised during the trial testimony of L .S .
Instead, we note that defense counsel first voiced this complaint following the close of
the Commonwealth's case, more than twenty-four hours after L.S. had testified .
At the time of trial, L .S . was twelve years of age, having been ten years old when
the charged offenses occurred . Youth will not bar a witnesses from testifying, for even
young witnesses are generally presumed competent to testify at trial . Price v.
Commonwealth , Ky., 31 S .W.3d 885, 891 (2000) . The steady and even demeanor of
L .S . on the witness stand could easily be viewed as strength of character instead of
Appellant's suggestion that she was under sedation . There was no indication that L.S .
lacked the capacity to recollect, express or truthfully relate her version of events.
Furthermore, any inconsistencies in the testimony of L.S., which Appellant points out in
great detail, are matters of credibility for the jury, not of competency of the witness . See
Price , supra , at 891 . Therefore, lacking any contemporaneous motion for a competency
hearing, we find no merit in Appellant's claim.
III. Grand Jury Indictment
Prior to trial, Appellant moved to dismiss the indictment against him on the
grounds that the prosecutor knowingly introduced false and misleading testimony before
the grand jury. The trial judge, following an evidentiary hearing, denied Appellant's
motion. On appeal, Appellant not only asserts that the trial judge erred in his ruling, but
now claims the prosecutor surreptitiously altered the tape recording of grand jury
proceedings .
The primary basis for Appellant's claim of error stems from the grand jury
testimony of Detective Ann Guiterrez . Appellant contends the detective misstated by
several orders of magnitude the victim's blood alcohol level following her encounter with
Appellant . The Commonwealth acknowledges this mistake, but counters that the
detective simply repeated incorrect information given to her by hospital personnel.
Once the error was discovered, the Commonwealth immediately notified Appellant
through supplemental discovery, although by this time the grand jury had indicted
Appellant for kidnapping and sodomy .
Typically, a court will not look behind the face of a grand jury indictment to test
the legality or sufficiency of the evidence on which the indictment is based . Jackson v.
Commonwealth, Ky., 20 S .W.3d 906, 907 (2000) ; Rice v. Commonwealth , Ky., 288
S .W.2d 635, 638 (1956). Appellant, however, compares the prosecutor's conduct
before the grand jury with that described in Baker v . Commonwealth , Ky. App ., 11
S.W.3d 585 (2000) . In Baker , the Court of Appeals affirmed the dismissal of an
indictment where a Commonwealth's Attorney intentionally elicited false testimony in
order to elevate the degree of an offense . Specifically, the Commonwealth's Attorney
represented that an aluminum baseball bat was used in an assault, when in reality the
weapon was nothing more than a wooden stick . Id. a t 589.
The Court of Appeals in Baker responded to a "flagrant abuse of the grand jury
process that resulted in both actual prejudice and deprived the grand jury of
autonomous and unbiased judgment." Id. at 588, citing Bank of Nova Scotia v. United
States , 487 U .S . 250, 108 S.Ct. 2369, 101 L.Ed .2d 228 (1988) . In the present case,
Detective Guiterrez averred that she simply informed the grand jury of statements made
to her by hospital personnel. Beyond noting a lack of the same brazen disregard for the
facts as in Baker, we are reticent to engage in any reevaluation of the evidence
supporting this otherwise valid indictment, for to do so would infringe upon the province
of the grand jury. See Holland v . Commonwealth , Ky., 114 S.W .3d 792, 808 (2003) .
Consequently we find no error in the trial court's denial of Appellant's motion to dismiss
the indictment .
In a similar vein, we also reject Appellant's argument that prosecutors should be
required to present grand jurors with all evidence affecting the credibility of witnesses,
thereby extending to these early proceedings the holding of Brady v. Maryland, 373
U .S . 83, 10 L.Ed .2d 215, 83 S.Ct. 1194 (1963) . The grand jury adequately serves its
gatekeeping function by considering the sufficiency of evidence to support an
indictment, rather than weighing all the evidence to determine the likelihood of guilt. To
insist that a prosecutor "present exculpatory as well as inculpatory evidence would alter
the grand jury's historical role, transforming it from an accusatory to an adjudicatory
body." United States v. Williams , 504 U .S. 36, 51, 112 S.Ct . 1735, 1744, 118 L.Ed.2d
352 (1992).
Finally, we find wholly unpreserved Appellant's claim that the prosecutor secretly
edited the tape recording of grand jury proceedings . This issue was not raised before
the trial court, nor has the grand jury tape been included in the record on appeal . An
appealing party has the responsibility to ensure that all materials necessary for effective
review are included in the record . Oldfield v. Oldfield, Ky., 663 S .W .2d 211 (1983) ;
Fanelli v. Commonwealth , Ky., 423 S .W.2d 255 (1968) . Counsel's personal
transcription of the grand jury tape is not properly before this Court . Any further review,
based upon a silent record, would be entirely speculative . Commonwealth v. Thompson ,
Ky., 697 S.W.2d 143,144 (1985).
IV. Exclusion of Evidence
Appellant charges that the Commonwealth conspired with local government "to
prosecute the Appellant with trumped up false criminal charges" in retaliation for
7
Appellant's role in separate criminal and civil cases involving a local political figure,
Ron Berry . See generally Berry v . Commonwealth , Ky. App., 84 S.W .3d 82 (2001) .
Appellant contends that he was denied the opportunity to present his "Micro-City
Government--Ron Berry--Commonwealth" conspiracy theory at trial, and that the
exclusion of evidence supporting this theory prevented Appellant from demonstrating
the bias of key prosecution witnesses. However, like many of Appellant's claims of
error, Appellant failed to raise this issue at trial .
Other than defense counsel's brief reference to Appellant as a "political prisoner,"
the Commonwealth points out that at no time during trial did Appellant seek to portray a
governmental conspiracy against him. Instead, during his attempts to impeach the
credibility of the victim and her family, Appellant sought to introduce the details of his
separate suit against Mr. Berry . The Commonwealth argued such details were
irrelevant to establish the possible bias of the victim and her family, and the trial judge
agreed . Appellant now attempts to ratchet the exclusion of the facts surrounding the
Berry case into an exclusion of Appellant's conspiracy theory defense.
Based on the arguments presented at trial, Judge Payne permitted Appellant
considerable leeway to establish the possible biases of the victim and her family,
including the family's attempted seizure of Berry settlement funds from Appellant, but
excluded other specific details of the Berry case on relevancy grounds. A trial judge
may "impose reasonable limits on defense counsel's inquiry into the potential bias of a
prosecution witness, to take account of such factors as `harassment, prejudice,
confusion of the issues, the witness' safety, or interrogation that [would be] repetitive or
only marginally relevant ."' Olden v. Kentucky, 488 U .S. 227, 232, 109 S. Ct . 480, 483,
102 L. Ed . 2d 513 (1988) uotin Delaware v. Van Arsdall , 475 U .S. 673, 679, 106 S .
8
Ct. 1431, 1435, 89 L. Ed . 2d 674 (1986) . Because Appellant failed to inform the trial
judge of any possible connection between the Berry case details and Appellant's
conspiracy theory, Appellant cannot now be heard to complain . Kennedy v.
Commonwealth , Ky., 544 S .W .2d 219, 222 (1976).
V. Admissibility of Forensic Evidence
Appellant asserts the trial court improperly admitted DNA evidence that
implicated Appellant in the sodomization of L .S . The initial forensic testing of the
victim's panties yielded no spermatozoa, but a later test indicated the presence of
saliva.
Subsequent genetic analysis of a swatch cut from the panties revealed a
mixture of two DNA profiles, a mixture from which neither Appellant nor L.S . could be
eliminated .
According to Appellant, the Commonwealth failed to establish a credible chain of
custody for the panties . Without recounting the lengthy series of events surrounding the
collection, inspection, storage and testing of this evidence, Appellant's complaint
centers on the fact that a forensic serologist neglected to reseal the bag in which the
panties were stored following her initial examination of this evidence . Thereafter, all
individuals who inspected the panties, including the prosecutor, also failed to reseal the
collection bag .
Appellant links the unsealed evidence bag with the prosecutor's "private viewing"
of the panties to suggest tampering with this evidence . Undeniably, the saliva and DNA
evidence which tied Appellant to these crimes was not discovered until after the
prosecutor examined the panties. However, as we stated in Rabovsky v.
Commonwealth , Ky., 973 S .W.2d 6, 8 (1998), "it is unnecessary to establish a perfect
chain of custody or to eliminate all possibility of tampering or misidentification, so long
as there is persuasive evidence that `the reasonable probability is that the evidence has
not been altered in any material respect ."' ug oting United States v . Cardenas , 864 F .2d
1528, 1532 (10th Cir.1989), cert . denied , 491 U.S . 909, 109 S .Ct. 3197, 105 L.Ed.2d
705 (1989) .
In the present matter, the Commonwealth adequately established the chain of
custody for the evidence in question . All relevant persons documented their handling of
this evidence, and the panties, although kept in an unsealed bag, were transported
within a larger sealed container . In addition, Appellant's assertion that the prosecutor
tampered with this evidence is nothing more than speculation . "The burden of the State
to establish integrity is not absolute ; all possibility of tampering need not be negatived ."
Brown v . Commonwealth , Ky., 449 S.W .2d 738, 740 (1969) . Any lingering uncertainty
regarding the unsealed bag in which the panties were kept simply affected the weight,
rather than the overall admissibility of this evidence . See Rabovsky, supra, at 8 .
Appellant also claims the trial court erred by neglecting to conduct a Daubert
hearing to determine the admissibility of the forensic evidence in this case . See Daubert
v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579,113 S.Ct. 2786, 125 L.Ed.2d 469
(1993) . This issue was not raised at trial, therefore this matter is not preserved for
appellate review . See Tharp v. Commonwealth , Ky., 40 S .W.3d 356, 367-68 (2000),
cert. denied 534 U .S. 928, 122 S.Ct. 289, 151 L.Ed .2d 213 (2001) (declining to
"speculate on the outcome of an unrequested Daubert hearing, or to hold that the failure
to conduct such a hearing sua sponte constitutes palpable error") . Nonetheless, we
observe that the reliability of the Polymerase Chain Reaction DNA comparison
technique, used here to link Appellant to these crimes, has been sufficiently established
so as to no longer require a Daubert hearing . Fugate v. Commonwealth , Ky., 993
10
S .W.2d 931, 937 (1999) . We therefore find no error in the trial court's decision to deny
Appellant's motion to exclude the DNA evidence .
VI. Voir Dire
Prior to trial, Appellant moved the court to permit individualized voir dire in order
to determine the effect of pre-trial publicity on potential jurors. Defense counsel argued
that they could not "explore this publicity issue in detail in group voir dire without the risk
of prejudicing previously impartial jurors ." Without specifically denying this motion, the
trial judge instead elected to first ask the entire panel if they were aware of any media
reports regarding Appellant's pending case . When two panelists affirmatively
responded, the judge invited them to the bench where they were individually
questioned .
Appellant claims that the trial judge's rejection of individualized voir dire for all
potential jurors "preempted Appellant's substantial right to knowledgeably exercise his
preemptory challenges ." We disagree . The record shows that Appellant had ample
opportunity to individually voir dire each of the panelists who admitted prior knowledge
of this case . Moreover, the fact that just two venire members evinced some familiarity
with Appellant or this case appears to contradict Appellant's claims regarding the
widespread effects of pre-trial publicity upon potential jurors . The decision of whether to
allow individualized voir dire, except in death penalty cases, is a matter of judicial
discretion . See RCr 9.38 ; Lawson v. Commonwealth , Ky., 53 S.W.3d 534, 539 (2001) .
We find no such abuse of discretion here .
VII. Allegations of Prosecutorial Misconduct
Under the heading of prosecutorial misconduct, Appellant makes a number of
claims of error, including the contention that the prosecutor refused to offer a plea
bargain or participate in a pretrial conference . In support of this particular claim,
Appellant points out that local Rule 10(A) of the Fayette Circuit Court requires the
Commonwealth's Attorney to attend a pretrial conference in all criminal cases . The trial
judge addressed this matter, but stated that he could not compel the prosecutor to meet
with Appellant before trial.
Although a technical violation of local rule 10(A) may have occurred, the error
was harmless . We observe that "[n]o defendant has a constitutional right to plea
bargain . The prosecutor may engage in it or not in his sole discretion. If he wishes, he
may go to trial ." Commonwealth v. Reyes , Ky., 764 S.W.2d 62, 64 (1989), citing
Weatherford v. Bursey, 429 U .S. 545, 97 S .Ct. 837, 51 L.Ed .2d 30 (1977) . There is little
likelihood that the results would have been any different had the judge ordered a pretrial
conference, for at most the judge could only order prosecutor's attendance, not actual
negotiation .
In regard to Appellant's remaining claims of "prosecutorial misconduct," we
observe that none involve the knowing use of false evidence, the sine qua non for such
allegations . Davis v . Commonwealth , Ky., 967 S.W .2d 574, 579 (1998) . Furthermore,
Appellant failed to preserve these allegations for our review . As we have often stated,
"unpreserved claims of error cannot be resuscitated by labeling them cumulatively as
'prosecutorial misconduct."' Young v. Commonwealth , Ky., 50 S.W.3d 148, 172 (2001) ;
Davis , supra, at 579. We therefore decline further review of these matters .
VIII . Motion for Directed Verdict
With no supporting facts or argument, Appellant asserts the evidence adduced at
trial was not sufficient to support his conviction . We disagree . The prosecution
introduced far more than a mere scintilla of evidence from which a juror could infer guilt.
12
Considering the evidence as a whole, including the saliva and DNA found on the
panties of L .S ., the victim's testimony, and Appellant's corroboration of many of the
events on the night in question, we cannot say the jury's verdict was clearly
unreasonable . See Commonwealth v. Benham, Ky., 816 S .W.2d 186, 187 (1991) .
IX. Cruel and Unusual Punishment
Lastly, Appellant asserts that his thirty (30) year sentence constitutes "cruel and
unusual punishment" in violation of the Eighth and Fourteenth Amendments to the
United States Constitution as well as Section 17 of the Kentucky Constitution .
Notwithstanding the fact that Appellant expressly waived jury sentencing in lieu of the
Commonwealth's recommended term of incarceration, we do not believe Appellant's
sentence is disproportionate to the nature of his offenses . See Solem v. Helm, 463 U .S.
277, 290, 103 S.Ct. 3001, 3009, 77 L. Ed .2d 637 (1983) .
We note that the permissible range for a particular sentence is "purely a matter of
legislative prerogative ." Hampton v. Commonwealth , Ky., 666 S.W.2d 737, 741 (1984),
citing Rummel v. Estelle , 445 U .S. 263, 100 S .Ct. 1133, 63 L.Ed.2d 382 (1980) .
Appellant's sentence falls well within the prescribed ranges for his offenses . As a
reviewing court, we are hesitant to disturb any sentence that does not exceed the
statutory maximum. See Marshall v. Commonwealth , Ky., 60 S.W.3d 513, 524 (2001),
cert. denied , 535 U .S. 1024 (2002) . Furthermore, a thirty year sentence does not strike
us as a greatly disproportionate punishment for the kidnapping and sodomy of a ten
year old child .
Therefore, the judgment of conviction and the sentence imposed upon Appellant
by the Fayette Circuit Court are hereby affirmed .
All concur.
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COUNSEL FOR APPELLANT
Gayle E. Slaughter
453 Ohio Street
Lexington, KY 40508
COUNSEL FOR APPELLEE
Gregory D. Stumbo
Attorney General
Samuel J . Floyd, Jr.
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601
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