DAVID TOLLE V. COMMONWEALTH OF KENTUCKY
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RENDERED: NOVEMBER 25, 2009
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2008-SC-000345-MR
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DAVID TOLLE
V.
Kt~u
APPELLANT
ON APPEAL FROM BRACKEN CIRCUIT COURT
HONORABLE STOCKTON B . WOOD, JUDGE
NO . 07-CR-00027
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
On July 10, 2007, A .R., age 10, asked her mother, Ann Tolle, to tell
Appellant not to "wake her up ." When Ms. Tolle asked A.R. what she meant,
A. R. indicated that Appellant would wake her up and make her lie on top of
him while he was naked . Ms . Tolle then called the Bracken County Cabinet for
Health and Human Services to report the allegations. On July 12, 2007,
Patricia Conley, a social worker, conducted an interview with A .R. and Ms .
Tolle at their home . She also spoke with Ms. Tolle's other children, A.J .R. and
M.T., several days later. Ms. Conley recommended a forensic interview and
physical examination at the Buffalo Trace Children's Advocacy Center in
Maysville, Kentucky. Both events were completed the following day.
At trial, Appellant's step-daughter, A .R ., testified that on multiple
occasions while Ann was at work, Appellant woke her up in the middle of the
night and touched her "where she did not need to be touched ." A.R. said he
would enter her room without wearing clothing, get her out of bed, and take
her back to his bedroom . During these encounters, A .R. testified that
Appellant would "touch her pee-pee" ; tickle her thighs; squeeze her "fifties" ;
and touch her "bathroom spot" with his hands . A.R . testified that on one
occasion, Appellant tried to stick his "bad spot" in her, and that he touched her
"bathroom spot" with his mouth . These actions occurred multiple times per
week for a period of approximately six to seven months. Dr. Leroy Gallenstein
testified that his examination of A.R . revealed that her hymen was intact and
that the examination was otherwise normal. He further testified that his
findings were not inconsistent with A.R .'s allegations .
Appellant was convicted of criminal attempt to commit first-degree rape,
first-degree sodomy, and first-degree sexual abuse . The jury recommended
Appellant be sentenced to twenty years in prison for sodomy, ten years for
criminal attempt to commit first-degree rape, and one year for first-degree
sexual abuse, with the sentences to run concurrently for a total of twenty
years. He now appeals the final judgment entered as a matter of right, Ky.
Const. ยง 110(2)(b) .
Appellant raises . multiple issues on appeal: (1) that it was error for the
trial court to deny his motion for a Daubert hearing regarding the scientific
testimony of Dr. Gallenstein; (2) that multiple hearsay statements vouching for
A.R.'s truthfulness improperly bolstered her testimony; (3) that there were
multiple violations of Appellant's constitutional right to remain silent when
witnesses referenced his refusal to talk to investigators; (4) that the trial court
erred in admitting evidence of the sexual relationship between Appellant and
his wife; and -(5) that-the trial court erred in admitting evidence of an
emergency protective order and domestic violence order. Each shall be
addressed in turn .
Daybe
hearing
on
the scientific
testimony of Dr. Gallenstein
Appellant challenges the admissibility of Dr. Gallenstein's testimony on
the grounds that it did not satisfy the test set forth in Daubert v. Merrell Dow
Pharmaceuticals, Inc . ., 509 U .S . 579 (1993) . Notably, Appellant contends that
a hearing was required regarding its admissibility into evidence .
Daubert provides that when expert scientific testimony is offered, the
trial court must determine at a preliminary hearing "whether the expert is
proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact
to understand or determine a fact in issue! A at 592 . Thus, when a party
seeks to introduce expert testimony, an initial determination is made to ensure
that the expert is proposing to testify to scientific knowledge which "entails a
preliminary assessment of whether the reasoning or methodology underlying
the testimony is scientifically valid . . . ." Id . at 592-93.
In the instant case, Dr. Gallenstein testified that there are many variants
of a "normal" hymen, and that its presence is not necessarily evidence of
virginity. He also indicated that several recent studies have shown that a
female could have an intact hymen even though pregnant. We considered a
similar issue in Collins v. Commonwealth, 951 S .W .2d 569 (Ky. 1997) . 1
Collins, Dr. Artie Bates testified that "it was not uncommon for women who
have had numerous sexual; encounters to still have a hymen ."-: Id . at 574 . The
defendant claimed that Dr. Bates's testimony did not comport with the Daubert
requirements and that the trial court erred in its admission . Disagreeing with
the defendant, this Court held:
Having articulated that Kentucky follows the Daubert
analysis for the admissibility of scientific evidence, we
conclude that such analysis is not, in fact, triggered in
this case . Daubert and Mitchell use the catch phrases
"expert scientific testimony," "theory," "technology,"
and "methodology ." Dr . Bates's testimony, on the other
hand, concerned basic female anatomical findings . Her
examinations did not involve any novel scientific
techniques or theories. Likewise, the research - that Dr.
Bates referred to involved the study of a female
physical characteristic . Dr. Bates testified that the
studies she relied upon were compilations of statistics
derived from pelvic examinations of young females in
various age groups. We discern nothing of a scientific
nature to trigger the necessity of applying the Daubert
analysis.
Id . at 575 .
Like Collins , Dr. Gallenstein's testimony concerned "basic female
anatomical findings" and did not trigger analysis under Daubert. His
testimony was based on multiple studies that showed the presence of intact
hymens in sexually active females and clearly assisted the trier of fact to
understand a fact in issue - the presence of a hymen in a female who has been
sexually abused. The trial court committed no error in allowing Dr.
Gallenstein's expert testimony without a Daubert hearing.
Improper bolstering ofA .R.'s testimony
I
This argument was . not preserved for review, and is thus analyzed under
the palpable error standard. RCr 10.26. Palpable error is one "which affects
the substantial rights of a party [and] may be considered . . . by an appellate
court on appeal, even though insufficiently raised or preserved for review, and
appropriate relief may be granted upon a determination that manifest injustice
has resulted from the error." RCr 10-26 . The basic palpable error review,
where an unpreserved error requires reversal, is "if a manifest injustice has
resulted from the error," which means there "is [a] probability of a different
result or [the] error [is] so fundamental as to threaten a defendant's entitlement
to due process of law." Martin v. Commonwealth, 207 S .W .3d 1, 3 (Ky. 2006) .
A palpable error "must involve prejudice more egregious than that occurring in
reversible error[ .]" Brewer v. Commonwealth, 206 S .W.3d 343, 349 (Ky. 2006) .
Thus, the alleged error must be "so improper, prejudicial, and egregious as to
have undermined the overall fairness of the proceedings." Id .
Appellant first contends that the testimony of A.R . was improperly
bolstered on numerous occasions by Trooper Jones, Patricia Conley, Teresa
Conway, and Ms. Toile. According to Appellant, each of these witnesses simply
repeated A.R.'s testimony and at times offered opinions as to its veracity, which
cumulatively resulted in manifest injustice. The crux of Appellant's complaint
seems to stem, however, from the testimony of Ms. Conway .
Ms . Conway conducted the forensic interview with A.R. She was asked
on direct examination about certain statements made by A.R . during the
-interview. During her testimony, M-s -Conway confirmed that A.R. indicated
that Appellant had "touched her" ; that he had "taken his mouth and put it on
her pee-pee"; that he had tried "to get her to touch it" ; and that he had "tried to
put it in her." Ms . Conway also testified that
R . confirmed that these
encounters occurred "3, 4, or 5 times per week" and "every Saturday ."
Additionally, A .R.'s testimony was, in her opinion, consistent with her
statements made during the forensic interview .
This Court has made clear its discomfort with convictions for child abuse
based upon the hearsay testimony and ultimate fact opinion given by social
workers . Sharp v. Commonwealth ,
849 S .W.2d 542, 546 (Ky. 1993) .
It is also
true that "[t]here is no recognized exception to the hearsay rule for social
workers or the results of their investigations." Souder v. Commonwealth, 719
S.W.2d 730, 734
(Ky. 1986) .
However, when viewed in the context of the trial
as a whole, the testimony by Ms. Conway does not amount to palpable error. A
major piece of Appellant's defense strategy was to point out perceived
inconsistencies in A .R.'s testimony and her statements given during the
forensic interview. Virtually, the entirety of the cross-examination of Patricia
Conley and Ms. Conway centered on this point. To advance his theory that
A. R.'s statements were full of inconsistencies, Appellant requested that the trial
court play the videotaped forensic interview. This was done over the objection
of the Commonwealth . Any prejudicial effect of the statements made by Ms.
Conway during her testimony, which were clearly hearsay, was severely
weakened when Appellant requested that the interview, from which these
statements were taken, be played for the jury. Taken in this light, we are not
convinced that Ms . Conway's testimony fundamentally threatened Appellant's
entitlement to due process of law . Nor does the record suggest that a different
result would have occurred with the exclusion of this testimony. A. R.'s
testimony alone constituted adequate evidence upon which a jury could
determine Appellant's guilt beyond a reasonable doubt . "The testimony of even
a single witness is sufficient to support a finding of guilt, even when other
witnesses testified to the contrary if, after consideration of all of the evidence,
the finder of fact assigns greater weight to that evidence ." Commonwealth v.
Suttles, 80 S.W .3d 424, 426 (Ky. 2002) . Any error in the admission of the
testimony was not palpable .
References to Appellant's refusal to speak to investigators
This argument was not preserved for review and is, thus, analyzed under
the palpable error standard . RCr 10 .26.
Appellant argues that there were multiple violations of his constitutional
right to remain silent when witnesses referenced his refusal to talk to
investigators. Appellant's silence was brought up on two separate occasions,
once by Patricia Conley ("My supervisor actually attempted to do that for me
here at the courthouse and he refused the interview.") ; and by Trooper Jones
(Appellant indicated he was "not talking further until he got a lawyer .") . This
argument, however, is simply without merit.
At the time Appellant made these remarks, he was not under arrest, nor
was he in custody. In both instances, the remarks were not used extensively
by the Commonwealth nor offered in any way as affirmative proof during its
case-in-chief. See Hall v. Commonwealth , 862 S.W .2d 321., 323 (Ky. 1993) ("It
is clear that the prosecution is prohibited from using the defendant's silence in
its case-in-chief.") . In the context of the remarks made by Ms. Conley, it is
clear from the record that her testimony related the investigative steps used by
Child Protective Services . Trooper Jones merely testified to what Appellant told
him during an interview at the home - statements clearly admissible under
KRE 801A(b) (1) . The references to Appellant's silence were not improper
comments on Appellant's right to silence and do not rise to the level of palpable
error.
Admission of evidence concerning Appellant's sexual relationship with
Ms. Tolle
This argument was not preserved for review . Appellant's objection was
based upon a question that would elicit a hearsay response, and Appellant did
not object to any other portion of Ms . Tolle's testimony. Therefore, the claim is
analyzed under the palpable error standard . RCr 10 .26.
Appellant argues that the Commonwealth's introduction of evidence
concerning the lack of sexual relations between him and Ms . Tolle was unduly
prejudicial and should have been excluded under KRE 403 . This evidence is
ambiguous at best. It could be interpreted as showing a lack of sexual desire
on Appellant's part, which would arguably be mitigating; or it could be
interpreted that such deprivation of sexual relations with his wife caused him
to prey upon A. R. Even if the admission of this evidence was in error, it
certainly is not so "shocking or jurisprudentially intolerable" as to undermine
the overall fairness of the proceedings. Martin v. Commonwealth, 207 S .W-3d
1, 4 (Ky. 2006) . There was no palpable error.
Admission of evidence of an EPO and DVO
An appellate court's standard of review for admission of evidence is
whether the trial court abused its discretion. Commonwealth v. English, 9 0 3
-,
S .W .2d 941, 945 (Ky. 1999) . "The test for abuse of discretion is whether the
trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by
sound legal principles." Id . The Commonwealth offered no evidence that an
EPO or DVO was actually obtained against Appellant . Trooper Jones was
called to Ms . Tolle's residence after Appellant had vacated it, but had returned
to find a trailer he owned missing. Appellant became very upset, but left
without incident after Trooper Jones advised him that the trailer had been
loaned to someone by Ms. Tolle . Trooper Jones then advised Ms . Tolle in
passing that she could obtain a protective order if she believed there would be
continuing problems . The trial court did not abuse its discretion by allowing
admission of Trooper Jones' comment to Ms. Tolle .
For the reasons set forth herein, the judgment of the Bracken Circuit
Court is hereby affirmed.
Minton, C .J . ; Abramson, Cunningham, Scott and Venters, JJ., , concur.
Noble, J., concurs in result only by separate opinion in which Schroder, J .,
joins. Schroder, J ., also concurs in result only by separate opinion in which
Noble, J ., joins .
NOBLE, J., CONCURRING IN RESULT: Since Appellant was charged
with Rape in the First Degree, the physical state of the victim was clearly
relevant. Consequently, the testimony of Dr. Gallenstein, who examined her,
was appropriate as to what he found . In this instance, he found that the
victim's hymen was intact, and that the exam was otherwise normal. At first
blush, this would appear to be supportive of the Appellant's position that he
did not rape the victim. However, the doctor was allowed to go further in his
testimony, to state that these findings were not inconsistent with rape. In
support of this statement, he referenced a recent study, which he did not
identify, that showed that the "vast majority" of young sexually abused girls
show no tears in their hymens . The Appellant properly and timely objected to
this testimony, claiming that he was entitled to a hearing on its scientific
reliability and admissibility pursuant to Daubert v. Merrell Dow
Pharmaceuticals, Inc. , 509 U.S . 579 (1993), which has been adopted as the
standard under the Kentucky Rules of Evidence, Miller v. Eldridge, 146 S .W .3d
909, 913 (Ky. 2004) .
In Collins v. Commonwealth, 951 S .W.2d 569 (Ky . 1997), this Court held
that such an analysis was not necessary since the doctor's testimony in that
case "concerned basic female. anatomical findings" rather than "expert scientific
testimony," even though the doctor relied on "studies" that she claimed were
compilations of statistical data. on young females of various ages. The Court
found "nothing of a scientific nature" in the testimony. Since all the testimony
was medical in nature and much of it went beyond mere description of the
state of the victim's anatomy, I believe the Court clearly was overbroad in its
holding in that case.
The United States Supreme Court established in Daubert that Federal
Rule of Evidence 702, governing expert testimony, required first a
determination whether the proposed evidence was "scientific," and if so,
whether it would assist the trier of fact. To answer the first question, the
Supreme Court stated, "The adjective `scientific' implies a, grounding in the
methods and procedures of science." Daubert, 509 U .S . at 590. Science is
based on more than a subjective belief or unsupported speculation. Medicine
is a science . And, surely, proper medical evidence would assist the trier of fact
in determining what the facts are related to a victim's physical or mental
condition .
It is also not unusual for experts to offer opinions that are not based on
first-hand knowledge or observation-that is primarily how an expert witness
differs from a lay witness . But as the Supreme Court pointed out in .Dauber
that testimony "is premised on an assumption that the expert's opinion will
have a reliable basis in the knowledge and experience of his discipline ." id. at
592 . It is the. reliability of Dr. Gallenstein's testimony that is at issue-h ere .
.
He did not identify the study he quoted by name . It had not been
provided to the Appellant to prepare for cross-examination. There was no
testimony about the method of collecting the data, and most importantly, there
was no real distinction that the claimed study dealt with cases that were
factually similar to the one on trial . Allowing the doctor to pluck a "study" out
of thin air without some kind of validation invites speculation that he might be
making it up on the spot. This is not the kind of evidence in which a court can
have reasonable confidence that it is correct or even a part of the known
knowledge of his discipline . This is clearly more than a bare description of the
physical anatomy that the doctor found during his examination; indeed, he
drew inferences that appeared counterintuitive in light of those findings, and
premised those inferences on an unnamed source.
A Daubert hearing would have fleshed out the source and content of the
alleged study, and whether it met scientific standards . The hearing indicated
in Daubert is not a rigid, formulaic hearing because "[m]any factors will bear
on the inquiry, and we do not presume to set out a definitive checklist or test."
Id . at 593 . As the Supreme Court further pointed out, the focus must be on
how the evidentiary submission was obtained, not on the conclusions that may
be drawn from it. A proper expert is free to give any opinion that is a
permissible inference from the evidence, so long as the evidence is relevant and
reliable . Unreliable evidence certainly has the potential to prejudice the party
against whom it is offered, and that is why it should not be.
Having said this, however, I do concur in the result of the majority,
because the evidence, while improper, clearly did not prejudice the jury against
Appellant. He was charged with First-Degree Rape but was convicted of
Attempted First-Degree Rape. The point the doctor was trying to make, that
the victim could have been raped but kept an intact hymen, apparently did not
persuade the jury that Appellant was guilty of rape . Thus, while the failure to
conduct a Daubert hearing was error, it is harmless in this case because it did
not affect the verdict. I would, however, overrule Collins, because it allows
scientific testimony that has not been vetted under the standards laid out in
Daubert.
Additionally, the hearsay testimony of several witnesses and any
bolstering through statements of belief in the victim's testimony was error. As
the majority notes, several of the witnesses commented on the veracity of the
minor victim . This was improper . See Moss v. Commonwealth , 949 S .W .2d
579, 583 (Ky.1997) ("`A witness's opinion about the truth of the testimony of
another witness is not permitted. . . . That determination is within the exclusive
province of the jury."' (quoting State v. James, 557 A .2d 471, 473 (R .I .1989)) ;
Stringer v. Commonwealth, 956 S .W.2d 883, 888 (Ky.1997) ("Generally, a
witness may not vouch for the truthfulness of another witness .") . However,
because the hearsay and bolstering were not objected to at trial and did not
result in a manifest injustice, they do not require reversal .
Schroder, J ., joins :
...
SCHRODER, J ., CONCURRING IN RESULT: In a case where the only
evidence of a crime is the unsupported allegations of an alleged victim, the
introduction of the type and amount of inadmissible hearsay as was introduced
in this case, in particular, the contents of a forensic interview, would generally
rise to the level of palpable error . The reasons given by the majority would not
suffice to make it otherwise . However, the majority fails to point out the crucial
sequence of events which makes the error non-palpable in this case - that it
was the defense who initiated the introduction of the inadmissible hearsay.
Near the beginning of the Commonwealth's case, prior to any testimony by
Teresa Conway or Trooper Jones regarding the interview, defense counsel
requested and received, over the objection of the Commonwealth on hearsay
grounds, a ruling by the trial court that he could play the entire tape of the
forensic interview as part of the defense. What would otherwise have been
palpable error was, in this case, trial strategy.
Noble, J., joins.
COUNSEL FOR APPELLANT:
Raymond S. Bogucki
218 Stanley Reed Court
P. 0. Box 277
Maysville, KY 41056
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
Jason Bradley Moore
Assistant Attorney General
Office of Criminal Appeals
1024 Capitol Center Drive
Frankfort, KY 40601-8204
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