RUSSELL GENE SULLIVAN V. COMMONWEALTH OF KENTUCKY
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RUSSELL GENE SULLIVAN
V.
APPELLANT
ON APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE KELLY M . EASTON, JUDGE
NO . 05-CR-000101
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING IN PART AND REMANDING IN PART
This is a matter of right appeal from a judgment in which Appellant was convicted
of the murder and first-degree criminal abuse of his girlfriend's three-year-old son.
Appellant claims as error: the admission of the mother's guilty plea to Complicity to
Criminal Abuse; that the three children who were witnesses for the Commonwealth
were not competent to testify; the admission of prior bad acts of Appellant ; the improper
foundation laid for prior inconsistent statement testimony; and the Appellant's sentence
of years was improperly ordered to run consecutively with his life sentence . We agree
that Appellant's ten-year sentence was improperly ordered to run consecutively with his
life sentence, and thus we remand the judgment for correction of the sentences to run
concurrently. In all other respects, the judgment is affirmed .
On the Sunday morning of August 1, 2004, three-year-old Ryan Arnold had been
playing outside of his mother's trailer in the countryside of Hardin County with several
other children . Later that day, Ryan came inside and complained to his mother, Andrea
Arnold, that his head was hurting . Andrea gave him some Motrin, put him to bed, and
asked Russell Sullivan, her boyfriend, to watch Ryan while she drove into town to get
some food . According to Sullivan, whose nickname was "Rusty", approximately twenty
minutes after Andrea left, he checked in on Ryan in his bedroom and saw that he had
turned blue, was not breathing, and was unresponsive . Sullivan called 911 and told
authorities that he would meet them at the local middle school because the area where
Andrea lived could be difficult to find. Sullivan then drove Ryan and his four siblings to
the Hardin Middle School where they met the EMS first responders. Paramedics
attempted to revive Ryan and transported him to Hardin Memorial Hospital . From there,
Ryan was transferred to Kosair Children's Hospital in Louisville, where he died the
following day.
At the time of Ryan's death, Sullivan had been staying with Andrea and her five
children at Andrea's trailer in the country. There was conflicting evidence as to whether
he lived there or just stayed there on the weekends . Andrea testified that Sullivan had
been living with them for about three weeks, while Sullivan testified that he was living at
his mother's house at the time . However, it was undisputed that Sullivan had stayed at
the trailer from Friday, July 30 to Sunday, August 1, 2004, and that Sullivan was at the
trailer with Ryan when he first lost consciousness.
Kentucky State Trooper Jeff Gregory testified at trial that he talked to Sullivan in
the waiting room at Hardin Memorial Hospital and asked him what had happened .
Sullivan replied that he was babysitting the children when he checked on Ryan and
found him turning blue. At that point, Trooper Gregory went to check on Ryan's status
and observed extensive bruising on the child. When he returned to the waiting room, he
asked Sullivan a second time what happened with the child. This time, Sullivan stated
that Ryan had been playing with some other children the night before and they were
fighting with sticks . Sullivan said the sticks were still in the yard and they were not very
big. When Andrea arrived at the hospital, Trooper Gregory observed her talking with
Sullivan . Trooper Gregory then approached Sullivan and asked a third time about the
source of Ryan's injuries, stating that the boy's massive head injuries were not
consistent with stick fighting . Sullivan stated that he had just remembered that Ryan
had fallen off the steps of the porch that morning .
Photos of Ryan from the hospital were admitted into evidence . These photos
showed extensive bruising all over the child's body, including his forehead, chin, back,
both ears, chest, shins, knees, thigh, arm, shoulder, genitals, and the tops and soles of
his feet. The photos also showed abrasions to Ryan's nose and mouth.
Dr. Betty Spivack, a forensic pediatrician who had written many articles on
abusive head trauma in children, was present during the autopsy of Ryan . Dr. Spivack
opined that while some of the injuries could be attributed to normal childhood play or
accident (the bruising to the shins and knees and abrasions on the nose and mouth),
the character of the remainder of the bruises would be unusual for accidental injuries
and was much more typical of inflicted injuries. In particular, the bruising on the
forehead, which was in a cluster pattern, as well as the widespread hemorrhaging in the
brain, was consistent with multiple inflicted blows by a flat surface at a high velocity and
was not consistent with Ryan's recent medical history of a fall off of a bike or a porch,
stick fighting or roughhousing with other children . Similarly, the clustered pattern of
bruising on the sides of the chest, the arm, and the chin would indicate inflicted injury .
Dr. Spivack specifically noted that the bruising on the genitals, the tops and soles of his
feet and in one of Ryan's ears was extremely unusual and would not have been caused
by normal play or accident .
Dr. Tina Slusher, a pediatric intensivist who specialized in pediatric critical care,
treated Ryan when he was transported to Kosair Children's Hospital . Dr. Slusher
testified that when Ryan arrived at Kosair, he was brain dead . His CT scan showed a
subdural hematoma . Dr. Slusher's assessment of the cause of Ryan's injuries
corroborated Dr. Spivack's opinion that many of the injuries were inflicted and could not
have been caused by a fall off of a bike or a porch or by playing with sticks. Dr. Slusher
specifically noted the bruise on Ryan's thigh. Dr. Slusher testified that it was in such a
pattern that it was likely caused by a belt or an adult human bite . Dr. Slusher agreed
with Dr. Spivack that the bruising to the genitals, the bottom of the toes, and the one in
his ear were extremely unusual .
Dr. Tracy Corey, Kentucky's Chief Medical Examiner since 1997, who is boardcertified in anatomical pathology and forensic pathology, performed the autopsy on
Ryan. Based on her findings during the autopsy, Dr. Corey concluded that Ryan died
as a result of an inflicted, closed head injury with the manner of death being homicide .
The autopsy revealed a subdural hematoma (bleeding under the membrane just
underneath the skull - the dura) and a subarachnoid hematoma (bleeding in the thin
layer underneath the dura). Dr. Corey testified that she observed multiple areas of
trauma to the head and an area of abdominal trauma indicating that Ryan had also
suffered some type of major blow to the abdomen. In Dr. Corey's opinion, falling down
steps two feet high, falling off of a bicycle with training wheels, or stick fighting would not
have caused Ryan's massive head injury. She stated that Ryan would have shown
symptoms of the head trauma immediately or almost immediately . Dr. Corey testified
that she also found multiple, external contusions and abrasions on Ryan's body . While
some of the bruises in some areas might have been caused by normal childhood play or
accidents, Dr. Corey stated that the sheer number of bruises, the location of them (in
recessed or protected areas), and the pattern injury on the thigh indicated that they
were inflicted injuries .
The prosecution also presented the testimony of Toby Gillespie, a neighbor of
the Amolds who came by the trailer for a ride on Saturday, July 31, 2004. Gillespie
testified that while he was waiting outside the trailer for Andrea to finish the dishes, he
saw Sullivan "hitting on" the Arnold children . According to Gillespie, when Ryan came
on the porch and said he was hurting, Sullivan told Ryan he was going to "toughen him
up" and started smacking Ryan in the face and right eye area. Sullivan then picked
Ryan up and started repeatedly swinging his head into the metal door of the trailer .
Finally, Gillespie observed Sullivan throw Ryan down the steps, knocking the other
children off of the steps. Gillespie testified that he asked Sullivan how he would like it if
someone did that to him, to which Sullivan responded by calling Gillespie a "pussy."
Gillespie claimed that an altercation between he and Sullivan then ensued when they
started swinging and grabbing at each other, until eventually Sullivan pulled out his
penis and declared he was "king of the porch ."
Three of the Arnold children were called as witnesses for the Commonwealth :
A.A., C.A ., and H .A ., who were nine, eight, and six years old, respectively, at the time of
trial . While A .A . was not able to remember much about what happened when Rusty
lived with them at the trailer, he testified that he remembered telling someone that Rusty
whipped Ryan and fought the children with sticks . C.A. testified that he saw Rusty do
bad things to Ryan, but at trial could not remember what they were. Madeline
Dunaway, a supervisor for the Cabinet for Families and Children who interviewed the
Arnold children on August 1, 2004, testified that C.A. told her that Rusty sometimes
whipped Ryan, would push Ryan off his bicycle, would put Ryan on the wall and hang
him by his feet and swing him, and that he bit Ryan. H.A . testified that she remembered
Rusty hurting Ryan and punching him in the face, but she did not remember Rusty
hitting Ryan on a wall . Social worker Cynthia Little testified that H.A. told her that Rusty
hit Ryan against the wall and beat him, making him bleed and cry.
The Commonwealth called Andrea Arnold as a rebuttal witness . Arnold testified
that Ryan had gotten sick and vomited after dinner on the evening of July 31, 2004.
She stated that the next morning, however, he was up playing and seemed fine. She
testified that Ryan fell off the porch on Sunday and bloodied his nose . Later, in the day,
Ryan came in complaining that his head hurt and she gave him Motrin and put him to
bed before she left to go get food . Andrea testified that she had never seen Sullivan get
angry with any of her children or hurt them in any way .
In his testimony at trial, Sullivan denied causing Ryan's injuries or ever hurting
Ryan . Sullivan stated that he could not explain what caused Ryan's injuries . According
to Sullivan, he went to his mother's house on Sunday morning and when he got back to
the trailer in the early afternoon, Andrea said Ryan had fallen down the stairs of the
porch. Sullivan stated that Ryan had cuts on his nose and face after the fall. Sullivan
testified that Ryan was constantly falling off of his bike. Sullivan also testified that when
Gillespie and his friend Gage Jobe came over on Sunday, he observed them throwing
rocks and bullying the children .
On February 28, 2005, Sullivan was indicted for Murder and First-Degree
Criminal Abuse . After a seven-day jury trial commencing February 8, 2006, Sullivan
was found guilty on both counts. Following the jury's recommendation, the trial court
sentenced Sullivan to life imprisonment for Murder and ten years imprisonment for FirstDegree Criminal Abuse, to run consecutively . This appeal followed .
COMPETENCY OF CHILD WITNESSES
Sullivan maintains that all three Arnold children were incompetent to testify in this
case . Competency hearings were held for all three children. KRE 601 sets forth the
following standard for determining the competency of a witness :
(a) General . Every person is competent to be a witness
except as otherwise provided in these rules or by statute .
(b) Minimal qualifications . A person is disqualified to testify
as a witness if the trial court determines that he :
(1) Lacked the capacity to perceive accurately the matters
about which he proposes to testify;
(2) Lacks the capacity to recollect facts;
(3) Lacks the capacity to express himself so as to be
understood, either directly or through an interpreter ; or
(4) Lacks the capacity to understand the obligation of a
witness to tell the truth .
KRE 601 establishes a presumption of competency, and the burden of proof is on the
party challenging the witness' competency. Price v. Commonwealth, 31 S.W.3d 885,
891 (Ky. 2000) . The determination of whether a witness is competent to testify is within
the sound discretion of the trial court, and unless there is a clear abuse of that
discretion, a trial court's ruling on competency will not be overturned on appeal . Jarvis
v. Commonwealth , 960 S.W.2d 466, 468 (Ky. 1998) (citing Wombles v. Commonwealth ,
831 S.W.2d 172,174 (Ky. 1992) and Pendleton v. Commonwealth, 685 S.W.2d 549,
551 (Ky. 1985)) . When the competency of a child witness is at issue, "it is then the duty
of the trial court to carefully examine the witness to ascertain whether she (or he) is
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sufficiently intelligent to observe, recollect, and narrate the facts and has a moral sense
of obligation to speak the truth ." Pendleton v. Commonwealth, 83 S .W.3d 522, 525-26
(Ky. 2002) (quoting Capps v. Commonwealth , 560 S .W .2d 559, 560 (Ky. 1977)) .
At the competency hearing for A .A., who was age nine at the time of trial, A.A .
could not remember his current or previous address, the name of town in which he
lived, or who lived with him besides his father. However, A.A. knew his school, teacher,
grade, birthday, and who brought him to court that day. A.A. correctly answered all of
the questions posed by the court for the purpose of establishing that he knew the
difference between the truth and a lie . A.A. testified that it was a bad thing to tell a lie
and expressed awareness of the consequences of lying, such as getting into trouble
and going to jail. Later in his testimony, A.A. recalled living with Rusty and his siblings
in the trailer two years ago and that Rusty was "mean ." In our view, A .A. met the
minimum qualifications for competency in KRE 601 . Hence, there was no abuse of
discretion in the court's adjudication of his competency.
As for the competency of C .A., who was eight years old at trial, he likewise could
not state his address or the town in which he lived . He stated that he lived in an
apartment and before that, he lived at Rusty's . C.A. was able to name his three siblings
that he currently lived with in his father's apartment . C.A. testified to the name of his
school, his grade and how he got to school. He could not remember his teacher's name
or his birthday, but was able to recall that he had a Wildcat cake for his last birthday . As
for the court's questions intended to elicit whether he knew the difference between the
truth and a lie, C.A . answered two correctly and one incorrectly . He correctly answered
the Commonwealth's simpler questions on whether it would be a lie to say his shirt was
red or that it was dark in the courtroom . When the court asked C .A. what happens
when someone tells a lie, C .A . responded, "I don't have any clue." However, C.A. did
testify that it was a "bad thing to tell a lie," and that you get in trouble in school for telling
a lie by having your name written on the board. He testified that before living in the
apartment, he lived in a trailer with Rusty and that he did not like living with Rusty
because he was mean .
Sullivan argues that C .A. was incompetent to testify at trial because of his
difficulty in distinguishing truth from a lie and because of his difficulty recalling facts and
events . From our review of C.A.'s testimony, although his responses were not all
correct and he had difficulty recalling some facts, he nevertheless demonstrated
sufficient competency to meet the minimum qualifications of KRE 601 . C .A. was
responsive to the questions posed to him, was able to express himself, showed the
ability to recollect facts, and demonstrated that he could accurately recall the time
period in question, when Rusty lived with the family . As for his capacity to understand
the obligation to tell the truth, C .A.'s correct responses to basic truth/lie questions and
his acknowledgement that it was a bad thing to tell a lie convince this Court that he had
a sufficient understanding of this obligation . Accordingly, the lower court did not abuse
its discretion in finding C.A. competent to testify.
Six-year-old H.A. competency was challenged by Sullivan also because she was
unable to recall certain events and because she did not demonstrate that she
understood the difference between the truth and a lie. When questioned by the
Commonwealth, H .A. knew her grade, teacher, and school. H .A. recalled living in a
trailer with Rusty, her mom, and her brothers when she was five. She also testified that
she remembered going to the hospital when Ryan got sick.
In attempting to ascertain H.A.'s capacity to differentiate the truth from a lie, the
court employed visual aids for the child in the form of a piece of paper with two children
drawn on it and an object in the middle. Above one of the child's head was a circle
containing the middle object, and above the other child's head was a circle containing a
different object. The court explained that the object above each child represented what
the child claimed the object in the middle was. The court then asked H.A. which child
was lying or telling the truth, the one on the right or the one on the left. Although H .A.
demonstrated to the court that she knew her right from her left and correctly identified all
of the middle objects, she answered two of the truth/lie questions incorrectly and stated
that she did not know the answer to another . She answered only one of the truth/lie
questions correctly. The court then gave H .A . two papers with a picture of a judge in
the middle and two children on either side of the judge . After telling H.A. which one of
the children told a lie (the right or left child), the court asked H.A. which child would get
in trouble for lying . H.A. correctly responded to both of these scenarios. When asked if
it would be a lie to say that the judge brought her to court that day, the child responded,
"I don't know ." And when asked if she knew the difference between the truth and a lie,
the child replied, "no." However, when the court asked H .A. if it would be the truth or a
lie to say that the (pink) shirt she was wearing was green, H.A. correctly indicated it
would be a lie. As for her knowledge of the consequences of lying, H.A. testified that it
was a bad thing to tell a lie and that you might be punished for telling a lie .
Sullivan points to H .A.'s incorrect answers on the truth/lie questions as evidence
of her incompetency . In viewing the visual aids used by the court, which were included
in the record before us, and the method of questioning by the court, we question
whether they were an accurate measure of this young child's capacity to understand the
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obligation to tell the truth. Although H .A. indicated she knew her right hand from her
left, she had to stop and think about it before answering . Also, the pictures of the
objects in the circles above the children's heads (speech bubbles) could have been too
abstract of a concept for this young child . Certainly adding these other levels of
analysis to the questioning made this type of inquiry more complex and difficult for a sixyear-old child. Although H .A. testified she did not know the difference between truth
and a lie, when the court asked the truth/lie questions in a more simplistic way, H.A.
answered correctly. Further, H.A. recognized that it was a bad thing to tell a lie and that
one can be punished for telling a lie . Unlike the four-year-old child in B .B. v.
Commonwealth , 226 S.W .3d 47 (Ky. 2007), H.A . demonstrated some understanding of
the obligation to tell the truth and the consequences of lying. H.A . also demonstrated
her capacity to perceive and recollect facts and to express herself so as to be
understood. Accordingly, from our review of H.A.'s testimony as a whole, we cannot
say that the trial court abused its discretion in finding her competent to testify at trial .
PRIOR BAD ACTS
Sullivan argues that the trial court erred in allowing in evidence of prior bad acts
through the testimony of the child witnesses (A.A ., C .A., and H .A.) and social workers
Madeline Dunaway and Cynthia Little, in violation of KRE 404(b). Sullivan contends
that the various testimony about his mistreatment of Ryan was prior bad act evidence
because there was no time frame mentioned as to when many of these acts were
committed . Hence, there was no evidence that these alleged acts related to the injuries
Sullivan was charged with inflicting in this case. In particular, Sullivan objects to: H .A.'s
testimony that he would hit Ryan in the face ; A.A.'s testimony that he would whip Ryan
and fight the children with sticks ; C .A.'s testimony that he did bad things to Ryan;
Cynthia Little's testimony that H.A. told her that Rusty would beat Ryan, hit Ryan
against the wall, make him cry and make him bleed ; and Madeline Dunaway's testimony
that C .A. told her that Rusty would whip Ryan, push him off his bike, put him on the wall,
hang him by his feet and swing him, and that Rusty bit Ryan . The trial court overruled
objections to this evidence . The trial court reasoned that because Sullivan was charged
with First-Degree Criminal Abuse, as well as Murder, if there was any possibility that the
prior acts caused the injuries that were the subject of the charges, the testimony was
not evidence of "other crimes, wrongs, or acts" within the meaning of KRE 404(b)
(emphasis added) .
We agree with the trial court's ruling . KRE 404(b) applies to evidence of criminal
conduct other than that being tried . See Billings v. Commonwealth , 843 S.W .2d 890,
892 (Ky. 1992). In the Criminal Abuse indictment, Sullivan was charged with
intentionally abusing or permitting the abuse of Ryan "on or about the 31 St day of July,
2004." The injuries Sullivan was charged with inflicting on Ryan pursuant to the FirstDegree Criminal Abuse charge were evidenced by the profuse bruising on Ryan's body.
The expert medical testimony regarding the age of these bruises was that the exact age
could not be conclusively determined. The bruises could have been hours old or days
old at the time of Ryan's death . There was also evidence that Sullivan had only been
living with Andrea and the Arnold children for about three weeks. Thus, it was possible
that all of the physically abusive acts testified to could have been the source of the
injuries at issue in this case. Accordingly, they were not "other" crimes, wrongs, or acts.
IMPROPER FOUNDATION
Sullivan argues that the trial court erred in allowing the Commonwealth to re-call
Cabinet supervisor Madeline Dunaway to testify to C.A .'s prior statements to her about
12
Sullivan's abuse of Ryan. Sullivan contends that the Commonwealth failed to lay a
proper foundation for such impeachment testimony pursuant to KRE 613(a) . KRE
613(a) provides in pertinent part:
Before other evidence can be offered of the witness having
made at another time a different statement, he must be
inquired of concerning it, with the circumstances of time,
place, and persons present, as correctly as the examining
party can present them . . . .
On direct examination, C.A . testified that he remembered Rusty doing bad things
to Ryan, but when the Commonwealth asked C.A. what those things were, C.A .
responded that he forgot. The Commonwealth then asked C.A. if he remembered a
lady named Ms. Dunaway coming to his house or his Dad's house and talking to him on
the night Ryan got sick. C.A. responded, "no." After C .A. was released as a witness,
the Commonwealth announced its intention to re-call Madeline Dunaway as a witness to
testify to a prior statement made to her by C.A. about the things he saw Rusty do to
Ryan. A bench conference then ensued on the issue of whether a proper foundation
had been laid for re-calling Ms. Dunaway. The defense argued that C.A. was neither
asked about the specific prior statement he allegedly made to Ms. Dunaway, nor the
time and place of the statement as required by KRE 613(a). The trial court agreed that
merely examining the child about whether he had talked to Ms. Dunaway, without
examining him about the specific statement he made to Ms. Dunaway, did not meet the
foundation requirements of KRE 613(a) . The trial court suggested that the
Commonwealth re-call C .A. to the stand to ask him the requisite foundational questions .
The prosecution questioned whether an inquiry into the specific statement made by the
child was necessary in light of the fact that he testified he did not remember even talking
to Ms. Dunaway . Nevertheless, the Commonwealth agreed to re-call the child to ask
13
about the specific statement he made to Ms. Dunaway . Defense counsel then objected
to re-calling C.A . because he had been released as a witness . Without formally
addressing the objection to re-calling C .A., the trial court proceeded to allow the
Commonwealth to re-call Ms. Dunaway to testify to the prior statement of C.A. (that
Rusty sometimes whipped Ryan, would push Ryan off his bicycle, would put Ryan on
the wall, hang him by his feet and swing him, and that he bit Ryan) without the
additional foundational testimony of C.A..
In Noel v. Commonwealth , 76 S.W.3d 923, 929-930 (Ky. 2002) (quoting Cole v.
State, 65 Tenn. 239, 241 (1873)), this Court made clear that strict compliance with KRE
613(a) is required, which includes asking "whether he said or declared that which it is
proposed to prove by the impeaching witness," as well as "the time, place and person to
whom the declaration was made ." From our review of the Commonwealth's
examination of C.A., the "time, place, and person" foundational elements were met by
asking whether C.A. remembered talking to Ms. Dunaway at his or his Dad's house on
the night Ryan got sick. However, simply asking C .A. whether he remembered talking
with Ms. Dunaway, without stating the substance of the specific statement he
purportedly made to her, was not sufficient .
The Commonwealth argues on appeal that Sullivan waived the error by his
objection to re-calling C.A. . The Commonwealth maintains that any deficiency in laying
a foundation for the impeachment testimony would have been cured by re-calling C.A.,
and thus it was Sullivan that invited the error by preventing the error from being
remedied . Although C .A. had been released as a witness, no subsequent witness had
been called to testify, and the trial court had the discretion to re-call the witness . See
Metcalf v. Commonwealth , 158 S.W.3d 740, 748-49 (Ky. 2005); McQueen v.
14
Commonwealth , 28 Ky.L.Rptr . 20, 88 S .W. 1047 (1905) . Indeed, the Commonwealth
had already agreed to and was ready to re-call C.A. . "[C]ounsel for the aggrieved party
must exhaust all reasonably available means to have the error rectified" before he can
demand relief from the claimed error. Romans v. Commonwealth, 547 S .W.2d 128,131
(Ky. 1977) . Because Sullivan stood in the way of the error being remedied in this case,
we deem said error to have been waived.
EVIDENCE OF ANDREA ARNOLD'S GUILTY PLEA
The Commonwealth called Andrea Arnold as a rebuttal witness at trial to
ostensibly rebut evidence offered by the defense that Sullivan was living at his mother's
house at the time of Ryan's death, not with Andrea and the children . After the
Commonwealth asked Andrea several questions about her relationship with Sullivan
and their living arrangements at the time, the following exchange occurred :
Commonwealth:
have you not?
Arnold:
Yes
Commonwealth:
protecting Ryan.
from?
Arnold:
You have pled guilty to Criminal Abuse,
And you pled guilty to not properly
Who did you not properly protect him
Rusty.
Commonwealth:
As part of that plea agreement, you're
going to serve ten years in jail, correct?
Arnold :
Yes sir.
Commonwealth:
As part of that plea agreement, are you
required to testify here today?
Arnold :
No sir.
Commonwealth :
Arnold:
You're doing this your own self?
Yes sir.
15
After this exchange, the Commonwealth proceeded to ask Andrea a series of
questions about the events leading up to Ryan's death, none of which elicited any
response implicating Sullivan, except for the fact that she left Ryan in Sullivan's care
during the time he lost consciousness. The defense then cross-examined Andrea,
asking her, "Rusty didn't give you any reason to believe he did it?" Andrea responded,
"! didn't think he did it." On re-direct, the Commonwealth again asked Andrea about her
guilty plea :
Commonwealth :
You didn't plead guilty to murdering
Ryan Arnold, did you?
Arnold :
No.
Commonwealth :
Arnold?
Arnold:
Yes.
Commonwealth :
Russell Sullivan?
Arnold:
You pled guilty to not protecting Ryan
Not protecting him from the defendant
Yes.
On re-cross, the defense then elicited the details of Andrea's guilty plea and sentence,
including the fact that it was the result of a plea agreement whereby the charge of
Complicity to Murder was dismissed. At the end of the questioning, defense counsel
asked, "During the plea, you didn't say you failed to protect Ryan from Rusty, did you?"
Andrea responded, "no." On the second re-direct, the Commonwealth directly asked
Andrea, "Who did you fail to protect your children from?" to which Andrea responded,
"Rusty, he was the only one there ." The inquiry surrounding Andrea's plea was finally
concluded on the second re-cross when defense counsel asked, "You didn't say
anything about Rusty during your plea, did you?" Andrea responded, "no."
16
On appeal, Sullivan argues that introducing evidence of Andrea's guilty plea to
Complicity to Criminal Abuse in the case denied him a fair trial because it was offered
by the Commonwealth as evidence of Sullivan's guilt.
"It has long been the rule in this Commonwealth that it is
improper to show that a co-indictee has already been
convicted under the indictment." To make such a reference
and to blatantly use the conviction as substantive evidence
of guilt of the indictee now on trial is improper regardless of
whether the guilt has been established by plea or verdict,
whether the indictee does or does not testify, and whether or
not his testimony implicates the defendant on trial .
Tipton v. Commonwealth , 640 S.W.2d 818, 820 (Ky. 1982) (quoting Parido v.
Commonwealth , 547 S.W.2d 125, 127 (Ky. 1977)) . One exception to the rule is when
the evidence of the conviction is used to impeach the co-indictee, and, if so used, an
admonishment should follow that it is only to be considered for credibility purposes .
Parido, 547 S.W.2d at 127 (citing Webster v. Commonwealth , 223 Ky. 369, 3 S .W.2d
754 (1928)) . And in St. Clair v. Commonwealth , 140 S.W.3d 510, 545 (Ky. 2004), this
Court adjudged it was not reversible error to introduce evidence of the co-indictee's
guilty plea when no objection was raised to the evidence and when the defense
referenced the guilty plea as part of its trial strategy . See also Tamme v.
Commonwealth , 973 S.W.2d 13, 33 (Ky. 1998), cert . denied, 525 U.S. 1153, 119 S. Ct.
1056, 143 L. Ed . 2d 61 (1999).
In the instant case, Sullivan admittedly failed to object to the introduction of the
evidence of Andrea's guilty plea . Although the Commonwealth certainly used Andrea's
guilty plea as evidence of Sullivan's guilt (by repeatedly asking her who she failed to
protect Ryan from), defense counsel, for impeachment purposes, elicited more detailed
information about the guilty plea and plea agreement on re-cross, and used the fact that
Andrea did not mention Sullivan during her plea as evidence that Sullivan was not
17
guilty . Thus, it appears that defense counsel referenced the guilty plea as part of her
trial strategy . Accordingly, it was not reversible error to allow in evidence of Andrea's
guilty plea.
CONSECU TIVE SENTENCE
Sullivan received a ten-year sentence on the First-Degree Criminal Abuse charge
and a life sentence on the Murder charge, with said sentences to run consecutively .
Sullivan argues that it was error to run the ten-year sentence consecutively with the life
sentence . We agree. In Bedell v. Commonwealth, this Court held that under KRS
532.110(1)(c), "no sentence can be ordered to run consecutively with . . . a life sentence
. . . . " 870 S .W.2d 779, 783 (Ky. 1993) ; see also Mabe v. Commonwealth , 884 S .W.2d
668, 673 (Ky. 1994) . Although this error was not preserved for review, under RCr 10 .26
we adjudge said error to be palpable error affecting the substantial rights of Sullivan .
Accordingly, this case is remanded for the limited purpose of correcting the sentence to
run Sullivan's ten-year sentence concurrent with his life sentence.
For the reasons set forth above, the judgment of the Hardin Circuit Court is
affirmed in part and remanded in part for proceedings consistent with this opinion .
All sitting . Abramson, Cunningham, Minton, Noble, Schroder, and Scott, JJ.,
concur . Lambert, C .J ., concurs in result only.
COUNSEL FOR APPELLANT :
Shelly R . Fears
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane
Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEES :
Jack Conway
Attorney General
James C. Shackelford
Assistant Attorney General
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort, KY 40601
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