ROY APPLEGATE V. COMMONWEALTH OF KENTUCKY
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2007-SC-000444-MR
01APPELLANT
ROY APPLEGATE
V.
ON APPEAL FROM LEWIS CIRCUIT COURT
HONORABLE ROBERT B. CONLEY, JUDGE
NO . 05-CR-00070
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE SCHRODER
AFFIRMING
Roy Applegate appeals from the May 21, 2007, judgment of the Lewis
Circuit Court convicting him of rape in the first degree, sodomy in the first
degree, and incest. Appellant was sentenced to thirty years imprisonment, and
appeals to this Court as a matter of right. I
BACKGROUND
Appellant lived in Lewis County, Kentucky with his daughter, HA. HA
testified that her father sexually abused her beginning when she was five years
old and continued until October 21, 2005. HA could not recall any specific
incidents of abuse prior to turning twelve years old, but testified that her father
engaged in this activity on repeated occasions between the time she was five
1 Ky. Const . § 110(2)(b) .
years old and the time she turned twelve years old. She also testified that he
wiped his semen on a blue sleeping bag. These incidents formed the basis for
Counts I and II of the indictment .
HA did recall one specific incident on October 20th or 21 st, 2005 (after
she was already twelve) where Appellant "did what he usually did." HA testified
that around 9:30 in the evening, "he made me go and take off my clothes." She
then described acts of intercourse and sodomy, which she said made her throw
up. HA also testified that "at three o'clock in the morning he would come in
there and wake me up and make me do it all over again."
On October 26, 2005, Appellant admitted to a worker for the Cabinet for
Health and Family Services that he had attempted to engage in anal sex with
HA, but "couldn't get it in." He admitted that he had engaged in sexual activity
with HA beginning when HA was seven or eight years old. He admitted that he
had performed oral sex on HA and that HA had performed oral sex on him. He
stated that he did not begin having sexual intercourse with HA until six
months prior to this meeting in October 2005. However, when Appellant
testified at trial, he denied any wrongdoing.
At trial, Dr. Leroy Gallenstein testified that he had examined HA and
found that her hymen was not intact and that her vagina had been penetrated.
Sabrina Christian, a forensic biologist for the Kentucky State Police Central
Forensic Laboratory testified that she examined a cutting from the sleeping bag
which was seized from Appellant's home and that semen extracted from the
sleeping bag matched Appellant's DNA.
The jury found Appellant guilty of rape in the first degree, sodomy in the
first degree, and incest . The jury recommended, and the court imposed, two
concurrent sentences of twenty years for the rape and sodomy convictions and
a consecutive sentence of ten years for the incest conviction .
On appeal, Appellant raises six allegations of error:
1) the language in the indictment for Counts I and II failed to state an offense
and therefore violated the doctrine of separation of powers ;
2) the language in the indictment for Counts I and II left Appellant unable to
protect against double jeopardy in the future ;
3) the language in the indictment for Counts I and II, combined with the
Commonwealth's theory of the case, HA's testimony, and the trial court's jury
instructions created the possibility of a jury verdict that was not unanimous;
4) the language in the indictment for Count III, combined with the
Commonwealth's theory of the case, HA's testimony, and the trial court's jury
instructions created the possibility of a jury verdict that was not unanimous;
5) the trial court erred by denying Appellant the right to cross-examine two
witnesses himself; and
6) the trial court erred by determining, in the presence of jurors, the status of
two witnesses as experts .
For the reasons that follow, we affirm Appellant's convictions and
sentence .
ANALYSIS
A.
The Indictment Sufficiently Stated An Offense And Did Not Violate
The Separation Of Powers
Appellant argues that the trial court erred by entering convictions on
Counts I and II of the indictment because the indictment violated the
separation of powers doctrine. Appellant concedes that this claim of error was
not preserved for appellate review and seeks review of this issue under the
palpable error rule, RCr 10.26 . To prevail on an unpreserved claim of error
under the palpable error rule, the Appellant must show that "manifest injustice
has resulted from the error." RCr 10.26 . We will reverse only if a substantial
possibility exists that the result of the trial would have been different without
the alleged error. Brock v. Commonwealth , 947 S.W.2d 24, 28 (Ky. 1997) .
Counts I and II of the indictment read :
COUNT I: The Lewis County, Kentucky, Grand Jury, charges that from
July 1998 to July 9, 2005, in Lewis County, Kentucky, the above named
defendant unlawfully committed the offense of 1ST DEGREE RAPE by
engaging in sexual intercourse with HA, a child under 12 years old,
AGAINST THE PEACE AND DIGNITY OF THE COMMONWEALTH OF
KENTUCKY .
COUNT II: The Lewis County, Kentucky, Grand Jury, charges that from
July 1998 to July 9, 2005, in Lewis County, Kentucky, the above named
defendant unlawfully committed the offense of 1ST DEGREE SODOMY
by engaging in deviate sexual intercourse with HA, a child under 12
years old, AGAINST THE PEACE AND DIGNITY OF THE
COMMONWEALTH OF KENTUCKY .
Appellant argues that the indictments for Counts I and 11 could be read
as alleging that HA was raped and sodomized an unspecified number of times.
Because the Kentucky legislature has not enacted a statute specifically
criminalizing "a pattern of sexual abuse," Appellant argues that the prosecutor
has usurped the Legislature's power by "creating a new crime out of whole
cloth." Appellant cites the federal habeas corpus case Valentine v. Konteh, 395
F.3d 626 (6th Cir. 2005), to argue that because the legislature could enact a
statute criminalizing a pattern of abuse but has not, the prosecutor's lack of a
specific date of rape or sodomy in the indictment is akin to creating a new
crime of a "pattern of abuse."
We disagree . In Valentine, the defendant was convicted of 20 counts of
child rape, with indictments and jury instructions for each count identically
worded, and 20 counts of felonious sexual penetration, each of which was also
identically worded . Id. at 628. The Valentine court noted that while "[sltates
have the authority to enact criminal statutes regarding a `pattern' or a
`continuing course' of abuse[,] [t]hey do not have the power to prosecute one for
a pattern of abuse through simply charging a defendant with the same basic
offense many times over." Id. at 634 . The court concluded the prosecution's
failure to differentiate factually between the offenses in each set of twenty
counts violated due process in that it deprived the defendant of both adequate
notice to defend himself and sufficient protection from double jeopardy . Id. at
636. Accordingly, the court allowed only one conviction of rape and one
conviction of felonious sexual penetration to stand, and set aside the other 38
convictions. Id . at 637.E
Unlike in Valentine , in the present case the Commonwealth did not issue
multiple, identical indictments for the same offenses. Appellant was simply
charged with a single count of rape, a single count of sodomy, and a single
count of incest . Further, it is not necessary that a child victim of sexual abuse
give specific dates that the offenses occurred . In fact, "[i]t would be wholly
unreasonable to expect a child of such tender years to remember specific dates,
especially given the long time period over which the abuse occurred ." Farler v.
Commonwealth , 880 S.W.2d 882, 886 (Ky.App. 1994) . This Court has long
held that in sexual abuse cases, especially those involving children, if "time is
not a material ingredient of the offense . . . . all that is necessary in the
indictment in this respect is that it should appear from its averments that the
offense was consummated before the finding of the indictment." Salvers v.
Commonwealth , 255 S.W.2d 605, 606 (Ky. 1953) . Accordingly, the indictment
was proper and did not violate the separation of powers.
The Indictment Was Sufficient And Does Not Render Appellant
Subject To Double Jeopardy
Appellant argues that the trial court erred by entering convictions on
Counts I and II of the indictment because the lack of specificity in the
indictment fails to protect him from double jeopardy. Appellant concedes that
2
As grounds for upholding one conviction of each crime, the court recognized that
Valentine did have notice that he was charged with the two separate crimes during
the period of time specified in the indictment . Valentine , 395 F.3d at 628 . In
Kentucky, the failure to differentiate between the multiple offenses would have
likely required all 40 convictions to be set aside. See Harp v. Commonwealth, 266
S .W.3d 813 (Ky. 2008) .
this claim of error was not preserved for appellate review and seeks review of
this issue under the palpable error rule, RCr 10 .26. Having reviewed the issue,
we opine that this issue is not yet ripe for appeal.
This Court does not have jurisdiction to decide a question unless there is
a real and justiciable controversy involving specific rights of specific parties .
Commonwealth ex rel. Watkins v. Winchester Water Works Co., 197 S.W.2d
771, 772 (Ky. 1946) . See also Veith v. City of Louisville , 355 S .W.2d 295, 297
(Ky. 1962) (quoting Black v. Elkhorn Coal Corporation, 233 Ky. 588, 26 S.W.2d
481, 483 (1930)) ("The court will not decide speculative rights or duties which
may or may not arise in the future, but only rights and duties about which
there is a present actual controversy presented by adversary parties, and in
which a binding j udgment' concluding the controversy may be entered.") .
Appellant has not been again arrested or indicted for any crimes for which he
has already been convicted. His concerns about double jeopardy are
speculative and not justiciable at this time .
Regardless of the ripeness of the issue, we believe a defendant who is
charged and convicted of a sexual crime that occurred during a range of time
cannot subsequently be charged with the same crime against the same person
during the period stated in the original conviction. Valentine, 395 F.3d at 629.
See also Schrimsher v. Commonwealth , 190 S .W.3d 318, 327 (Ky. 2006)
("Appellant could defend himself from double jeopardy in any future
prosecution . . . by pleading his conviction in the case subjudice and requiring
the subsequent prosecution to establish a different. . . . time frame of
commission .").
C.
The Trial Court Did Not Err In Its Instructions To The Jury
Regarding Unanimity
Appellant argues that the trial court's instruction to the jury that their
verdict "must be unanimous" was not precise enough to ensure that they
actually agreed about "just what it was that defendant did." Appellant
maintains that because the indictment and jury instructions alleged a range of
dates wherein the offenses occured, that there is no way to know if the jury
agreed on a specific incident of sexual abuse . Appellant concedes that this
claim of error was not preserved for appellate review and seeks review of this
issue under the palpable error rule, RCr 10.26 .
A criminal defendant is entitled to a unanimous verdict. Ky. Const. § 7
as interpreted by Cannon v. Commonwealth , 291 Ky. 50, 163 S.W.2d 15
(1942) ; RCr 9 .82(1). Recently, this Court held that when an indictment
charges a defendant with the same offense multiple times, the jury instructions
must include language to factually distinguish one offense from another. Harp
v. Commonwealth, 266 S.W.3d 813, 816 (Ky. 2008) . Harp was indicted for and
convicted of one count of first-degree sodomy, seven counts of first-degree
sexual abuse and one count of indecent exposure . Id. All seven of the sexual
abuse jury instructions were identical . Id . We held in that case that it was
error to submit seven identical jury instructions, and instructed that in the
case of multiple counts of the same offense, the jury instructions must contain
some sort of distinguishing facts so that the jury may determine whether it is
satisfied from the evidence the existence of facts which prove that each of the
separate offenses occurred. Id. at 818. More important to the present case,
this Court also held that there was no unanimity problem with regard to the
single sodomy instruction "because Harp was charged with only one count of
sodomy. Our precedent does not support: a conclusion that a trial court is
required to include any identifying evidentiary detail in instructions in which a
defendant is charged with only one count of an offense." Id. at 821 n.25 .
In the case at hand, Appellant was not charged with the same offense
multiple times . Rather, he was charged with one count of rape, one count of
sodomy, and one count of incest. Accordingly, no error occurred.
D.
The Trial Court Did Not Err In Refusing Appellant's Request to
Cross-Examine Two Witnesses On The Second Day Of Trial
Appellant contends that the trial court deprived him of his right to self-
representation by refusing to allow him to cross-examine witnesses . On the
second day of trial, Appellant notified the court that he was interested in crossexamining two witnesses, HA and Dr. Gallenstein, who had already been
dismissed from the stand . Defense counsel explained Appellant's request to
cross examine as:
He contends that her playing football busted her
hymen. And, I told him that I did not see any
reasonable basis to inquire about that so I didn't .
Number two, he's contending that the doctor who
testified made up records. That the doctor never had
seen [HA] before. And I told him that no doctor is
gonna do that and risk losing his license to come here
and testify. And I refused to ask questions about that.
The trial court denied Appellant's request to cross-examine witnesses because
he did not have a law degree and was "not trained to ask questions on crossexamination," and Appellant agreed to give his attorney questions to ask for
him instead.
The trial court's rationale for not allowing Appellant to perform crossexaminations, that Appellant was not a lawyer, was not sound . A criminal
defendant has a Sixth Amendment right to self-representation. Faretta v.
California, 422 U.S. 806, 821 (1975) . A criminal defendant also has a state
constitutional right to self-representation and hybrid representation under
Section Eleven of the Kentucky Constitution . See Wake v. Barker, 514 S.W.2d
692, 695-96 (Ky. 1974) . As the United States Supreme Court recognized in
Faretta:
It is undeniable that in most criminal prosecutions
defendants could better defend with counsel's
guidance than by their own unskilled efforts . . . . And
although he may conduct his own defense ultimately
to his own detriment, his choice must be honored out
of "that respect for the individual which is the lifeblood
of the law."
422 U.S. at 834 (internal citation omitted) . Denying a request for hybrid
representation solely on the grounds that a defendant does not have a law
degree or is not trained in cross-examining witnesses is improper .
However, Appellant's request to cross-examine witnesses was not timely.
In Kentucky, "an accused may make a limited waiver of counsel, specifying the
extent of services he desires, and he then is entitled to counsel whose duty will
be confined to rendering the specified kind of services (within, of course, the
normal scope of counsel services) ." Wake, 514 S .W.2d at 696 . However, a
defendant who wishes to waive his right to counsel, or make a limited waiver,
must do so in a timely manner so as not to cause a delay in proceedings . Soto
v. Commonwealth , 139 S.W.3d 827, 857 (Ky. 2004) (citing Robards v. Rees ,
789 F.2d 379, 383-84 (6th Cir. 1986)) . A demand for self-representation is
timely if made "before meaningful trial proceedings have begun," i.e. before the
jury is selected or empaneled. Soto, 139 S.W.3d at 857 (quoting United States
v. McKenna, 327 F.3d 830, 844 (9th Cir. 2003)) ; See also United States v.
Youn, 287 F.3d 1352, 1354-55 (11th Cir. 2002)) .
In Moore v. Commonwealth, we held that a motion for self-representation
filed on the morning of trial was not timely . 634 S.W.2d 426, 430 (Ky. 1982) .
The trial court may grant an untimely request, but that decision is within the
sole discretion of the trial court . Soto, 139 S .W .3d at 857 (citing Robards , 789
F.2d at 384) . As such, we will not disturb the decision of the trial court unless
"the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported
by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945
(Ky. 1999) .
As in Soto, where the defendant did not request that he make the closing
argument until the closing of the guilt phase of the trial, and Moore, where the
motion to proceed pro se was not filed until the morning of the trial, Appellant's
request to represent. himself in a limited manner was not timely. Therefore, we
will not disturb the trial court's decision unless it was an abuse of discretion .
With regard to cross-examination of HA, the court may limit a
defendant's contact with the victim . Even if a defendant is granted the right to
cross-examine witnesses, there is no constitutional right to personally crossexamine the victim of his crimes . Partin v. Commonwealth , 168 S.W.3d 23, 27
(Ky. 2005) . Particularly in the case of sexual abuse, courts have widely held
that it is not error to restrict a defendant from personally questioning the
victim . See, ej~. , Maryland v. Craig, 497 U.S. 836, 851 (1990) ; Fields v.
Murray , 49 F.3d 1024, 1034 (4th Cir . 1995) .
With regard to Dr. Gallenstein, Appellant presented no basis for his
beliefs to the trial court. His own attorney acknowledged that he knew of
Appellant's beliefs about Dr. Gallenstein and had refused to ask questions on
the subject because he had no basis for doing so .
Accordingly, while the trial court's reasoning was unsound, there were
nevertheless legitimate reasons for denying Appellant's request to crossexamine the witnesses. Therefore, we conclude the trial court did not abuse its
discretion in denying Appellant's request.
E.
The Trial Court's Determination Of The Status Of Two Witnesses
As Experts In The Jury's Presence Was Harmless Error
Appellant argues that the trial court erred by determining, in the
presence of the jury, that two of the prosecution's witnesses were experts . On
the first day of trial, the Commonwealth called Dr. Leroy Gallenstein to testify.
After stating his qualifications, the following exchange occurred:
"PROSECUTOR : Judge, we submit Dr. Gallenstein as an expert.
COURT: Objection?
DEFENSE COUNSEL: Yes, Judge, for the record, I object.
COURT: Overruled ."
On the second day of trial, the Commonwealth called Sabrina Christian
to testify. After stating her qualifications, the following exchange occurred :
PROSECUTOR: Judge, we would submit Ms. Christian
as an expert witness in this field.
COURT: Objections?
DEFENSE COUNSEL : Yes, Judge, for the record I
object.
COURT: Overruled . Ladies and gentlemen, the witness
will be considered an expert in her field which means
she is qualified to give the opinion evidence which she
is about to give. Which we treat as any other evidence .
Appellant maintains that the court's statements bolstered the credibility
of these two witnesses, as well as the credibility of HA, because their testimony
corroborated her testimony . The determination that a witness is an expert
should be made outside the presence of the jury. Luttrell v. Commonwealth,
952 S .W.2d 216, 218 (Ky. 1997) ("Great care should be exercised by a trial
judge when the determination has been made that a witness is an expert. . . .
All such rulings should be made outside the hearing of the jury and there
should be no declaration that the witness is an expert.") . Although we agree
that the trial court. should not make such determinations in front of the jury,
these statements by the trial court were harmless error. We have noted that
"the credibility of every witness . . . including expert witnesses, is subject to
attack and cross-examination, this being the primary means by which trial
counsel can attempt to persuade jurors of the weight or significance to be
attached to testimony of the witnesses . . . ." Edwards v. Commonwealth, 554
S .W.2d 380, 385 (Ky. 1977) . Based on the evidence presented at trial and
defense counsel's opportunity to cross-examine the expert witnesses, the error
was not unduly prejudicial.
CONCLUSION
For the above stated reasons, we hereby affirm Appellant's convictions
and sentence .
All sitting. Minton, C.J., Abramson, Noble, Scott, and Venters, JJ.,
concur. Cunningham, J., concurs in result only by separate opinion.
CUNNINGHAM, J ., CONCURRING IN RESULT ONLY: With the exception
stated hereafter, I concur with the excellent work of the majority.
I do not believe the trial judge committed any error in his handling of the
expert witnesses in this case. In fact, I think the procedure in which the
experts were qualified was entirely appropriate. Therefore, there was no need
to apply the harmless error standard.
On this issue, the majority leans upon a weak reed in citing the case of
Luttrell v. Commonwealth, 952 S.W.2d 216 (Ky. 1997) . We said in Luttrell :
"This Court has never held that a trial judge is precluded from informing the
jury that a witness had been recognized as an expert." Id. at 218. Only in
dictum does that case say that "[g)reat care should be exercised by a. trial judge
when the determination has been made that a witness is an expert . . . . All
such rulings should be made outside the hearing of the jury and there should
be no declaration that the witness is an expert." Id .
The Luttrell opinion goes on to say that 'Ji]f the jury is so informed such
a conclusion obviously enhances the credibility of that witness in the eyes of
the jury." Id . Of course, that is exactly what the qualification of an expert is
supposed to do. It affords that witness the elevated status of credibility so that
he or she is entitled to offer an opinion.
Except in cases where qualifications are stipulated, experts are always
qualified in front of a jury. Even the sponsoring party may choose not to
stipulate to the qualifications in order that the jury has the opportunity to
know of the qualifications and judge that expert's credibility accordingly.
Equally important is the right for the opposing party to have the opportunity to
question these qualifications before a jury.
If the witness meets the threshold requirement of an expert, it is less
than candid for the jury not to be apprised of that status . Otherwise, it can
lead to confusion. The friendly neighbor is not allowed to give an opinion as to
the danger of the gas leak she smelled ; but the stranger from out of town with
a briefcase is able to not only give an opinion, but offer a half day discourse on
the subject.
It is my opinion that many trial judges in Kentucky deal with expert
witnesses at jury trials in the same or similar manner as was done in this case.
The qualifications, or lack of qualifications, are properly aired before the jury.
The proper certification of the witness is made by the judge in front of the jury .
It is further appropriate, in my opinion, for the court to inform the jury exactly
what all the fuss is about. The fact that they are told that expert status only
allows a witness to give an opinion, and the validity of that opinion rests in
their discretion, is an even-handed and straightforward way to proceed .
COUNSEL FOR APPELLANT:
Jamesa J . Drake
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE :
Jack Conway
Attorney General
Joshua D. Farley
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
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