JOHN RUSSELL WALKER V. COMMONWEALTH OF KENTUCKY
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THIS OPINION IS DESIGNATED "NOT TO BE
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SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
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RENDERED : MAY 18, 2006
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Auyrmt 01ourf of
2004-SC-0815-MR
JOHN RUSSELL WALKER
V
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. CLARK, JUDGE
03-CR-00637
APPELLEE
COMMONWEALTH OF KENTUCKY
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, John Russell Walker, was convicted in the Fayette Circuit Court of
kidnapping, first degree sodomy, and three counts of first degree rape . Appellant's
convictions stem from his crimes perpetrated against T.S., his former girlfriend . He was
sentenced to a total of twenty-five years imprisonment and appeals to this Court as a
matter of right. Additional facts will be set forth as necessary.
I.
Appellant's first argument on appeal is that the trial court erred when it permitted
Anita Capillo, the nurse examiner who examined T .S ., to testify to T.S .'s hearsay
statements . Capillo is a Sexual Assault Nurse Examiner, also known as a SANE nurse .
She is employed by the Lexington Police Department and performs examinations of
sexual assault victims at the University of Kentucky Medical Center Emergency
Room. These examinations serve two purposes: (1) to treat the victim's injuries; and
(2) to collect evidence .
At trial, the Commonwealth asked Capillo to recount the history given by T.S.
during the physical examination . Appellant objected on hearsay grounds . The
Commonwealth argued that the testimony was admissible pursuant to KRE 803(4)
because the overall purpose of T.S .'s statements was for medical diagnosis and
treatment. After acknowledging that Kentucky courts have not ruled specifically on the
testimony of SANE nurses, the trial judge allowed the testimony under KRE 803(4).
Appellee argues that this issue is not properly preserved for review . Prior to
Capillo's testimony, Appellant objected on hearsay grounds. The trial judge allowed
Capillo to testify under the medical diagnosis exception . Capillo recounted in detail the
history given by T.S . Appellant, however, failed to object during Capillo's testimony .
Appellant now alleges that the bulk of her testimony was not reasonably pertinent to
medical diagnosis or treatment . We agree that there were portions of Capillo's
statement that were not related to medical diagnosis or treatment. However, Appellant
failed to object . The trial judge allowed Capillo to testify under the KRE 803(4)
exception to the hearsay rule. Nevertheless, the trial judge could not foretell the specific
details of Capillo's testimony, and when the testimony deviated from the scope of KRE
803(4), it was incumbent upon Appellant to object . Insofar that Appellant complains to
any particular statement as being inadmissible under KRE 803(4), the objection is not
properly preserved for review. See Meadows v. Commonwealth , 178 S .W.3d . 527, 53738 (Ky. App. 2005) (Appellant did not properly preserve the issue for review where he
failed to object to the doctor's testimony that exceeded the scope of KRE 803(4)) .
Nevertheless, we must still consider Appellant's initial objection concerning the
admissibility of Capillo's statement as a whole . As discussed above, a SANE nurse
serves the dual function of gathering evidence and providing medical treatment . The
rationale behind the KRE 803(4) exception to the hearsay rule is that there is a
presumption that the declarant, in the interest of aiding her medical treatment, is being
truthful. See Johnson v. Commonwealth , 864 S .W.2d 266, 274 (Ky. 1993) . T.S. still
had this motivation to be truthful because Capillo was providing medical treatment,
notwithstanding her role as evidence gatherer. Therefore, we believe that Capillo's
testimony was admissible pursuant to KRE 803(4).
II.
Next, Appellant argues that the trial court erred when it allowed Capillo to testify,
in violation of the hearsay rule, regarding a statistical report listing the type and
frequency of injuries sustained during non-consensual sexual intercourse . Upon review
of the record, we find that this error was not preserved . When Capillo initially mentioned
the statistical report, defense counsel objected on the ground that he had not previously
been furnished with the study and could not adequately prepare for it. The trial court
ruled that Capillo could discuss the study as it relates to her education, knowledge, and
experience, without mentioning its specific details . When Capillo mentioned the study
during her testimony, defense counsel once again objected, stating, "I think you said
she could testify from her experience, not the researchers' ." This second objection was
not a hearsay objection, but rather, related to the earlier trial court ruling that Capillo
could testify without specifically mentioning the details of the study. Because defense
counsel did not object on the basis of hearsay, this alleged error was not preserved .
Moreover, it does not rise to the level of palpable error. RCr 10.26.
Ill .
Appellant claims that the trial court erred in permitting the Commonwealth to
introduce evidence of his prior felony conviction for impeachment purposes. Appellant's
prior felony was a bank robbery. The Commonwealth was permitted to impeach
Appellant with the prior felony conviction on two issues . On direct, after being asked
whether he committed the charged offenses, Appellant testified that he "would never do
nothing like that to a woman ." During cross-examination, the Commonwealth asked
Appellant whether he testified that he would never victimize a woman . Appellant
answered in the affirmative . The Commonwealth then named two females who were
present during the bank robbery, at which point defense counsel objected . Defense
counsel argued that the Commonwealth's question regarding whether he would
"victimize" a woman was confusing because Appellant's testimony concerned whether
he would ever commit sexual assault against a woman. The trial court overruled the
objection, and the Commonwealth proceeded to ask Appellant about his prior felony
conviction .
The Commonwealth also introduced the testimony of Linda Black, the Fayette
County Chief Deputy Clerk, who testified that Appellant had been indicted and convicted
of a felony involving the possession of a handgun .' Appellant pled guilty to that offense .
Black's testimony was offered after Appellant was asked, "And you had a gun in that
crime didn't you?" Appellant replied in the negative . The attorneys approached the
bench and clarified that Appellant's previous felony involved the possession of a gun by
one of the parties involved, but it was unclear whether Appellant had the gun. The
' In his brief, Appellant discusses a line of questioning involving whether Appellant had
ever victimized females. Appellant testified that he would never victimize a woman, but
later admitted that two females were the victims of his previous felony . This line of
questioning, however, was not impeached, and unnecessary for us to discuss in detail .
4
Commonwealth rephrased the question to ask whether the previous felony conviction
involved the possession of a gun, and Appellant answered, "No ." The Commonwealth
moved to admit the impeachment evidence . Defense counsel objected on the grounds
that the question was confusing because Appellant was likely still under the impression
that he was being asked whether he personally had a gun during the crime . Defense
counsel requested that the Commonwealth rephrase the question to ask whether the
felony involved possession of a gun by any of the parties. The trial court overruled the
objection and allowed the impeachment evidence . Black testified that Appellant was
convicted of a felony that involved the possession of a gun, but it was unclear from the
indictment whether Appellant or another party was actually in possession of the gun .
Upon review of the record, it is evident that reasonable minds could differ as to
whether Appellant was confused by the questions that triggered the admissibility of the
impeachment evidence . While the trial judge might have cleared up this confusion by
directing the Commonwealth to rephrase its questions, we cannot say that the trial court
abused its discretion when it ultimately admitted the impeachment evidence . Matthews
v. Commonwealth, 163 S.W.3d 11, 19 (Ky. 2005) (This Court will not disturb a trial
court's decision to admit evidence absent an abuse of discretion) .
IV.
Next, Appellant alleges that the trial court erred in admitting impermissible bad
acts evidence, under KRE 404(b). As motive evidence, Commonwealth sought to
introduce evidence that T.S. obtained an Emergency Protective Order (EPO) after
Appellant had slapped her, and that when he learned of the EPO, he became angry at
her because he had an outstanding warrant, and because he kept drugs in his car
which could be discovered by authorities .
Initially, the trial court only allowed evidence regarding the domestic violence and
the EPO, but later amended its ruling, and allowed evidence of Appellant's outstanding
warrants as evidence of motive. T.S . testified that Appellant was angry when she
obtained an EPO because he feared being arrested on outstanding warrants . On direct
examination, Appellant testified that, after the EPO had been filed, he had inquired
about the outstanding warrants and was told that there was only a summons for traffic
tickets carrying a penalty of a fine.
At this point, the Commonwealth requested that the trial court reconsider its
ruling regarding drugs in Appellant's car. The trial court agreed, and allowed the
Commonwealth to ask Appellant whether he had drugs in his car . The trial court found
that this was admissible evidence of Appellant's motive. The Commonwealth asked
Appellant whether he had drugs in his car, and he replied in the negative .
We recognize that the tendency of the bad acts evidence to show motive was
attenuated . Ultimately, however, we find that there is not a substantial possibility that
any of this evidence had an effect on the outcome of the case. Any error was clearly
harmless . RCr 9 .24 .
V.
Appellant argues that the trial court erred when it overruled his motion to
suppress his statements to police. Appellant claims that this statement was taken in
violation of his Fifth Amendment privilege against self-incrimination . Detectives Pugh
and Johnson took Appellant's statement while he was in custody . Detective Pugh read
him his Miranda rights, and stated, "You have the right to stop (the interview). All you
have to do is say, you know, I don't want to do this anymore ." The trial court held a
suppression hearing on Appellant's motion to suppress, and overruled the motion on the
ground that Appellant did not sufficiently invoke his right to remain silent.
Appellant claims that he asserted his right to remain silent on three occasions,
during the following exchange:
Detective Pugh: Why would she get this EPO? Do you have any idea, if it wasn't
the slapping, was she just mad at you or what?
John Walker:
You know what, I'm going to keep it all real with you, okay?
DP:
Okay.
JW:
Her little feelings is real, real hurt and all she needs is a hug,
that's my statement, that's really all l got to say.
DP :
Okay.
JW:
And I'll tell you everything that really, really went on, in trial.
Formal.
DP :
Okay. You're saying its just hurt feelings, all the way through
the whole thing?
JW:
I mean, I could sit here and tell you that, I can't tell you that I
have not hurt this girl's feelings, I mean, I couldn't tell you that.
[interview continues]
DP :
You know, is she using, is she selling (drugs)? What kinds of
things you want me to check out?
JW :
l can't help you. I'm saying I can't help you. My lawyer has
told me I cannot help you. I can't help you.
Concerning a suspect's right to remain silent, "[i]f the individual indicates in any
manner, at any time prior to or during questioning, that he wishes to remain silent, the
interrogation must cease ." Miranda v. Arizona , 384 U .S. 436, 473-74, 86 S .Ct. 1602, 16
L .Ed .2d 694 (1966) . "[N]o ritualistic formula or talismanic phrase is essential in order to
invoke the privilege against self-incrimination . All that is necessary is an objection
stated in language that a committee may reasonably be expected to understand as an
attempt to invoke the privilege ." Emspak v. United States, 349 U.S . 190, 194, 75 S.Ct.
687, 99 L Ed . 997 (1955). Furthermore, suspects must make a "clear and unequivocal"
assertion of their Fifth Amendment rights . 2 Davis v. United States, 512 U .S. 452, 46162, 114 S.Ct. 2350, 129 L .Ed.2d 362 (1994) . See also Talbott v. Commonwealth , 968
S .W.2d 76 (Ky. 1998).
Upon careful analysis of the record, we do not find that Appellant made a clear
and unambiguous assertion of his right to remain silent . In Furnish v. Commonwealth ,
95 S .W .3d 34, 47 (Ky. 2002), the suspect told questioning officers, "I don't know what
you are talking about" and "I've got nothing else to say." We found that the suspect did
not remain silent, but rather, denied any knowledge of the crimes . We held, "at no point
did Appellant state that he did not wish to talk to the officers." Similarly, in this case, we
do not find that Appellant's statements, "that's all I really have to say," and "I can't help
you" are tantamount to requests for the interview to stop . Similarly, we do not find
Appellant's statement that "I will tell you everything . . . in trial" was an unequivocal
assertion of his right to silence.
By contrast, Appellant was instructed by Detective Pugh that he could express
his desire to stop the interview by saying "I don't want to do this anymore ." While it may
seem as though we are splitting hairs, a statement like "I don't want to do this anymore"
can be distinguished from Appellant's statements because the former expresses the
2 Although the holding in Davis concerns a suspect's request for counsel, and not a
statement asserting his right to remain silent, many federal courts have applied the
Davis holding to a suspect's request to remain silent . See e .,q, Coleman v. Singletary ,
30 F.3d 1420, 1424-25 (11 th Cir. 1994) (finding it unnecessary to apply a different rule
for invocations of right to remain silent) ; McGraw v. Holland , 257 F.3d 513, 519 (6 th Cir.
2001) (applying Davis ); U.S . v. Johnson, 56 F.3d 947, 955 (8th Cir. 1995) (citing to Davis
regarding right to remain silent); U.S . v. Ramirez, 79 F.3d 298 (2nd Cir. 1996)
(recognizing that other circuits have applied Davis to invocations of right to remain
silent, and following suit).
suspect's desire to terminate the interview. Our holding is consistent with the Sixth
Circuit case cited by Appellant, McGraw v. Holland , 257 F .3d 513 (6 th Cir. 2001), which
found the statement, "I don't want to talk about it" to be an unequivocal assertion of the
right to remain silent. Id . at 519 .
The judgment and sentence of the Fayette Circuit Court are affirmed .
Graves, Roach, Scott, and Wintersheimer, J.J. concur.
Lambert, C.J ., Cooper and Johnstone, J .J ., dissent and would reverse and
remand this case for a new trial because of the admission of improper hearsay evidence
by the witness, Capilla, and factual details of Appellant's prior conviction under the
guise of impeachment . Purcell v. Commonwealth , 149 S .W.3d 382, 395-401 (Ky.
2004).
COUNSEL FOR APPELLANT
Emily Holt Rhorer
Department of Public Advocacy
100 Fair Oaks Lane
Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE
Gregory D. Stumbo
Attorney General
Kristin N . Logan
Office of Attorney General
1024 Capital Center Dr.
Frankfort, KY 40601
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