JAMES MELVIN RIGGS V. COMMONWEALTH OF KENTUCKY
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IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE
PUBLISHED." PURSUANT TO THE RULES OF
CIVIL PROCED URE PROMULGATED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS A UTHORITY IN ANY OTHER
CASE INANY CO UR T OF THIS STA TE.
RENDERED: DECEMBER 18, 2003
NOT TO BE PUBLISHED
,Sixpremt C~oixrf of ~ie
2002-SC-0880-MR
BATF
APPELLANT
JAMES MELVIN RIGGS
V.
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BARRY WILLETT, JUDGE
NO . 98-CR-0993
APPELLEE
COMMONWEALTH OF KENTUCKY
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, James Melvin Riggs, was convicted of first-degree sexual abuse and
first-degree sodomy in connection with the sexual molestation of his then stepdaughter.
Appellant received five years on the sexual abuse charge and twenty years on the
sodomy charge to run concurrently for a total of twenty years imprisonment . He was
acquitted of the same charges brought in connection with his biological daughter . He
appeals to this Court as a matter of right. Ky. Const. ยง 110(2)(b) .
Appellant alleges four issues on appeal, namely that: (1) the trial judge
committed reversible error when he failed to excuse three jurors for cause ; (2) it was
error to overrule Appellant's motion to compel the two victims to submit to a monitored
interview with defense counsel ; (3) it was error not to sever for trial the counts pertaining
to the stepdaughter victim from the counts involving Appellant's biological child ; and (4)
the prosecutor made improper comments during the closing arguments . For the
reasons set forth below, we affirm Appellant's conviction .
Appellant was indicted in 1998 after his stepdaughter, then aged thirteen, alleged
that Appellant had molested her numerous times from approximately 1989 through
1991, when she was four to six years of age. Appellant's biological daughter also
claimed that Appellant had molested her several times during a two-week period she
had visited Appellant at his home in 1997 . Appellant's biological daughter was eight
years old when the alleged abuse occurred .
Appellant's stepdaughter testified that Appellant would come into her bedroom
after he got off of work (late at night) and wake her by fondling her under her pajamas .
She also testified that Appellant forced her to engage in oral sex on numerous
occasions. Appellant allegedly told his stepdaughter that her mother would be taken
away from her if she told anyone about the abuse. The abuse ended apparently when
Appellant and his stepdaughter's mother divorced and he moved from the home they
shared .
Appellant's biological daughter testified that she had only been molested during
the two-week period she stayed with Appellant during vacation . She testified that
Appellant woke her in the night and had her come to the living room to watch a
pornographic video titled "Dads and Daughters," where Appellant touched her and had
her touch him . She also testified that Appellant then took her back to the bedroom
where he forced her to engage in oral sex. Appellant also allegedly told her that she
would be taken away from her family if she told anyone what had happened .
Appellant's biological daughter did not come forward with her story until after her
stepsister had revealed her abuse. Ultimately, the jury acquitted Appellant on all counts
relating to his biological daughter .
CHALLENGES FOR CAUSE
Appellant first alleges that the trial court erred in not striking three jurors for
cause, thereby requiring that Appellant exercise peremptory strikes to remove the jurors
from the venire panel .
Juror #36089 stated during voir dire that she had two family members that had
been sexually abused and that she would therefore tend to lean toward the maximum
penalty if Appellant was found guilty. This juror also stated that it would be hard to say
if she could put her family history behind her and be impartial because "it's a sensitive
issue ." The juror ultimately stated that she could consider the entire penalty range .
Juror #26911 stated that he did not think even the maximum penalty available
was harsh enough . This juror maintained that anything short of tying a rock around a
child molester's neck and throwing him in the river would not be severe enough . After
further questioning, the juror stated that he could live with a twenty-year sentence, since
the rock was not an option, and further stated that he did not know the facts of this case
yet.
Juror #27817 also favored the maximum punishment for a child molester . She
stated that in her opinion, this offense was just short of murder . She also stated that
she thought she could put those feelings aside and listen to the facts of the case.
In reviewing the failure to excuse prospective jurors for cause, we are bound to
defer to the decision of the trial court unless that decision is found to be an abuse of
discretion . Mabe v . Commonwealth , Ky ., 884 S .W.2d 668, 670 (1994) . If the trial court
abused its discretion in not excusing a juror for cause, such is reversible error even if
Appellant ultimately used a peremptory challenge to remove the juror from the panel .
Id .
Along with giving due deference to the decision of the trial court, we must look at
the totality of the evidence when determining whether the challenged jurors possessed
a mental attitude of "appropriate indifference ." Id. at 671 . "The test is whether, after
having heard all of the evidence, the prospective juror can conform his views to the
requirements of the law and render a fair and impartial verdict ." Id.
Although a juror who would otherwise be disqualified as biased cannot be
rehabilitated upon further questioning by the Commonwealth, Montgomery v.
Commonwealth, Ky., 819 S.W .2d 713, 717-718 (1992), the record here does not show
that any of the challenged jurors exhibited such a bias that they could not follow the
requirements of the law and render a fair verdict. "A per se disqualification is not
required merely because a juror does not instantly embrace every legal concept
presented during voir dire examination ." Mabe, supra , at 671 . The fact that Jurors
#26911 and #27817 did not initially feel that the maximum sentence for a child molester
was harsh enough, does not automatically excuse them for cause . A review of the
entirety of their comments suggests an ability to listen to the facts and consider the
range of penalties for each charge . Likewise, just because a juror has been the victim
of a violent crime, or has had family members who were victims of a violent crime, does
not automatically require his or her excusal for cause in a trial for similar charges .
Woodall v. Commonwealth , Ky., 63 S .W.3d 104, 118 (2001) . Therefore, we cannot say
that the trial judge abused his discretion when he failed to excuse Juror #36089, whose
family members had suffered prior sexual abuse, for cause .
REQUEST TO INTERVIEW CHILD WITNESSES
Appellant next claims that the trial court erred when it denied his "Motion to Allow
Defense Counsel to Interview [the minor children] ." Defense counsel asked the trial
court to compel the Commonwealth and the children's guardian to grant an interview
with both children . Appellant states that without being allowed to interview the children,
he was "essentially operating blind at trial."
Appellant concedes that no criminal rule of evidence explicitly gives him the right
to interview a witness prior to trial . Appellant states that he is not advocating the right to
take depositions of the child victims in all sexual abuse cases, but rather only when the
circumstances of the particular case require it. He contends that the trial court has the
inherent authority to order a witness to submit to a pre-trial interview. Appellant's
argument has no merit .
"There is no right to take depositions for discovery in criminal proceedings in
Kentucky." Rigsby v. Commonwealth , Ky., 495 S .W.2d 795, 798 (1973), overruled on
other grounds by Pendleton v. Commonwealth , Ky., 685 S.W.2d 549 (1985) ; Wickware
v. Commonwealth, Ky., 444 S .W.2d 272, 274 (1969) . RCr 7 .10 states in relevant part
the grounds for taking depositions in criminal trials and allows the court to order a
deposition only when "it appears that a prospective witness may be unable to attend or
is or may be prevented from attending a trial or hearing . . . ." Since there was no
concern that either witness would not be able to testify in person at trial, RCr 7.10 does
not afford Appellant a right to depose/interview the witnesses .
Appellant also tries to equate the current situation with a trial court's authority to
order that a witness submit to a physical or psychological examination by a defense or
independent expert . See Turner v. Commonwealth , Ky., 767 S .W.2d 557 (1988) and
Mack v. Commonwealth , Ky., 860 S.W.2d 275 (1993) . Turner and Mack both dealt with
the application of CR 35.01, which gives a trial court the authority to order a party to
submit to a physical or mental examination if such a condition is in controversy . In each
case, this Court, guided by due process concerns, extended the scope of that rule to
cover nonparty victims of child sexual abuse. We do not find Appellant's analogy to the
present situation persuasive . This Court explicitly confined the holdings in those cases
to the facts of each case, and we decline to extend the reasoning to the present
circumstances . Appellant was not denied due process simply by the fact that he was
unable to interview his accusers prior to trial . Appellant had both victims' statements to
police prior to trial, and both victims testified at trial and were subject to defense crossexamination . There was no error.
SEVERENCE OF COUNTS
Appellant also finds error in the trial court's refusal to sever the counts pertaining
to his stepdaughter from the counts in the indictment pertaining to his biological
daughter .
The decision of whether to join offenses for trial is within the sound discretion of
the trial judge and will be reversed only upon an abuse of that discretion. Violett v.
Commonwealth , Ky., 907 S .W.2d 773, 775 (1995) . The question is whether the joinder
of the offenses resulted in undue prejudice to Appellant . Roark v. Commonwealth , Ky.,
90 S .W.3d 24, 28 (2002) ; RCr 9 .16. "The primary test for determining whether joinder
constitutes undue prejudice is whether evidence necessary to prove each offense would
have been admissible in a separate trial of the other." Id . We have previously said that
evidence of other sexual crimes committed by the accused may be admissible at trial if
offered to show intent, motive, identity, knowledge, absence of mistake, or common
scheme or plan. Commonwealth v . English , Ky., 993 S .W.2d 941, 943 (1999); Anastasi
v. Commonwealth, Ky., 754 S.W .2d 860, 861 (1988) . Evidence of other instances of
sexual misconduct is also admissible to show a common modus operandi . Pendleton v.
Commonwealth , Ky., 685 S.W.2d 549, 552 (1985) . In order for evidence of prior sexual
misconduct to be relevant and not unduly prejudicial, the acts must be sufficiently
similar and not too remote in time to one another . English , supra, at 944-945 .
The trial court found in this case that the acts against Appellant's stepdaughter
and biological daughter were similar enough to one another to warrant joinder of the
offenses for trial. Specifically, the trial court found :
In the present case, the Defendant is being charged with
both sodomy and sexual abuse against two female children,
one was his step-daughter at the time of the alleged act, the
other is his natural daughter . Both children were around the
same age at the time the alleged acts were committed ; and,
as a father figure, the Defendant stood in a position of
authority over both children . He approached each child at
night in her room while she was sleeping and was careful not
to draw anyone else's attention to the transaction . The
offenses were comprised of similar acts on each child, and
the Defendant instilled fear in each child in an attempt to
prevent them from telling anyone .
We agree that the similarity of acts committed on each child was sufficient to establish a
pattern of conduct, or modus operandi, on the part of Appellant . The trial court relied on
Anastasi , supra , that held an eight-year time span between incidences of sexual
misconduct was not too remote, in finding that the five and a half year time gap in the
current case was not unduly prejudicial. We cannot say that the trial court abused its
discretion in finding that the probative value established by the similarities of the
offenses outweighed any prejudice Appellant may have suffered as a result of the
passage of time between offenses .
Appellant attempts to persuade us that our previous cases dealing with the
admissibility of other acts of sexual misconduct are based on the conceptual flaw that
the mental state of the accused is relevant in sex offense cases . Appellant contends
that the only legitimate purpose for introducing evidence of abuse of his stepdaughter at
the trial of his biological daughter (and vice versa) would be to prove the identity of the
alleged perpetrator, which is not at issue . Modus operandi, Appellant contends, is
usually used to prove the identity of an unknown assailant . Therefore, according to
Appellant, evidence of other crimes is not relevant in his case . In Billings v.
Commonwealth , Ky., 843 S.W.2d 890, 893 (1992), we said :
While the issue of the corpus delicti is primary in these
cases, identity of the perpetrator (if any) is not wholly
irrelevant . It seems more accurate to say that the latter
issue is assimilated into the former. If the act occurred, then
the defendant almost certainly was the perpetrator. The two
issues are essentially integrated . It is entirely appropriate,
we believe, for purposes of assessing the admissibility of
evidence of collateral crimes in the present context, to treat
the evidence as if offered to prove identity by similarity, and
to require that the details . . . be sufficiently similar as to
demonstrate a modus operandi .
The similarity of the methods of commission of the acts upon Appellant's stepdaughter
and biological daughter indicate a reasonable probability that the acts were committed
by the same person . Adcock v. Commonwealth , Ky., 702 S .W.2d 440, 443 (1986).
Evidence of Appellant's modus operandi would also be relevant to substantiate the
victims' accusations by showing them not to be fabrications . The evidence of
misconduct with Appellant's stepdaughter would have been admissible at the separate
trial of his biological daughter ; and likewise, the evidence pertaining to the biological
daughter would have been admissible at the trial relating to the stepdaughter .
PROSECUTOR'S COMMENTS
Appellant concedes that this issue is not preserved for review and asks us to
examine the prosecutor's comments for palpable error pursuant to RCr 10.26.
Appellant takes offense to the prosecutor's final statement asking the jury to hold
Appellant responsible on behalf of the two children . Appellant's argument has no merit
and there was no palpable error.
For the reasons set forth above, we hereby affirm the judgment of the Jefferson
Circuit Court .
Lambert, C.J. ; Cooper, Graves, Johnstone, Stumbo, and Wintersheimer, JJ .,
concur. Keller, J ., concurs in result only.
COUNSEL FOR APPELLANT :
Frank Wm . Heft, Jr.
Jefferson District Public Defender
200 Civic Plaza
719 West Jefferson Street
Louisville, KY 40202
J . David Niehaus
Office of the Public Defender for
Jefferson District Public Defender
200 Civic Plaza
719 West Jefferson Street
Louisville, KY 40202
COUNSEL FOR APPELLEE:
A. B . Chandler, III
Attorney General
Capitol Building
Frankfort, KY 40601
William Robert Long, Jr.
Assistant Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
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