DANNY MONTGOMERY V. COMMONWEALTH OF KENTUCKY
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DANNY MONTGOMERY
V
ON APPEAL FROM TRIMBLE CIRCUIT COURT
HONORABLE KAREN A. CONRAD, JUDGE
NOS . 05-CR-00048, 06-CR-00035 AND 07-CR-00023
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTIC E ABRAMSON
AFFIRMING
Danny Montgomery appeals as a matter of right from a Judgment of the
Trimble Circuit Court convicting him of first-degree sexual abuse, in violation
of KRS 510 .110, and sentencing him as a first-degree persistent felony offender
(PFO) to twenty years in prison . The Commonwealth alleged that on five
occasions Montgomery raped his early-adolescent stepdaughter, K .B, and that
shortly prior to one of the rapes he abused her by placing his hand on her
vagina . The jury acquitted Montgomery of the rape charges, but convicted him
of sexual abuse . Montgomery challenges his conviction on three grounds. He
maintains (1) that the rape and abuse charges should have been tried
separately; (2) that the trial court erred by admitting evidence pursuant to KRE
404(b) that Montgomery had similarly abused three other young girls; and (3)
that the trial court erred by excluding evidence tending to show that K .B . had
knowledge which enabled her to make sexual allegations and that she had a
motive to falsely accuse him. Montgomery also challenges his sentence . He
contends that the trial court improperly gave the Commonwealth an
opportunity to perfect its PFO proof, that crucial portions of the
Commonwealth's evidence were incompetent, and that the court incorrectly
instructed the jury to recommend an enhanced sentence on the PFO charge
without first recommending a sentence for the underlying sexual abuse .
Convinced that Montgomery has not established grounds for relief, we affirm
both his conviction and his sentence .
RELEVANT FACTS
In October 2005, a Trimble County Grand Jury indicted Montgomery for
allegedly having raped K .B . ten times between December 2, 2004 and August
18, 2005, when K.B . was thirteen and fourteen years old. The ten counts of
the indictment were identical . In response to Montgomery's motion for a bill of
particulars, the Commonwealth, in October 2006, detailed five rapes : one on
December l, 2004, a day after Montgomery, K .B., and K.B .'s mother had
arranged to move to Trimble County from Johnson County, Indiana; a second
in January 2005; a third in March 2005; a fourth later that spring, and a fifth
during the morning of May 20, 2005, following an incident the night before
when Montgomery allegedly awakened K.B. by reaching inside her pants and
fondling her vagina . All of these incidents were alleged to have occurred at
Montgomery's Trimble County residence . The other five counts of rape were
dismissed, but the May 2005 fondling allegation gave rise in November 2006 to
a separate indictment for sexual abuse . The rape and abuse charges were
ultimately joined and tried together with a first-degree persistent felony
offender charge in July 2007 .
Trial testimony established that K.B . was born in California in May 1991 .
She has two older half siblings, a brother and a sister . In 2000, the family
moved from California to Indiana, where K.B .'s mother soon met, commenced
living with, and eventually married Montgomery. Almost as soon as
Montgomery moved in, the elder sister accused him of molesting her. The
accusations were not pursued, but the sister was allowed to return to
California to live with her father. At some point, too, the brother left the home
to live with relatives. In 2002, when K.B. was eleven, she told a friend and
then a school counselor that Montgomery had "raped" her. The counselor
informed K .B .'s mother, who immediately took K.B . to the emergency room to
be examined . The exam revealed that K.B.'s hymen was still intact and that
otherwise her genitals were completely normal . Soon thereafter K.B . told the
investigating social worker that she had made up the "rape" allegation and that
in fact nothing had happened .
Allegations against Montgomery arose again in November 2004, when
K.B . was thirteen years old and still living in Indiana with her mother and
Montgomery . The mother of one of K.B .'s classmates reported to authorities a
rumor that Montgomery had molested some of K.B .'s friends and had subjected
K.B . to intercourse . A police officer and a social worker promptly interviewed
the girls at school . Three of K.B .'s friends reported that they had, at separate
times, spent the night at K.B .'s home and that during the night they had been
awakened by Montgomery reaching into their pants and touching their vaginal
areas . When initially questioned, K.B ., too, made allegations against
Montgomery .
It was in the wake of the investigation of these allegations that
Montgomery, K.B ., and K .B.'s mother moved from Indiana to Trimble County .
K.B. testified that she and Montgomery spent December 1, 2004 at their new
trailer painting and preparing to move in . That night, she claimed,
Montgomery forcibly subjected her to intercourse . She admitted, however, that
the next day, when she was again interviewed by the Indiana police officer
investigating the allegations against Montgomery there, she not only did not
report the alleged rape but, recanting her allegations of a few days before,
denied that Montgomery had abused her in Indiana .
K.B . also testified concerning the four other alleged rapes and the May
19 incident of abuse. In addition, her testimony and that of others described
how, on May 20, 2005, the day of the last alleged rape, K.B .'s brother moved
from his grandparents' home in Indiana to his mother's and Montgomery's
Trimble County trailer. About a week after his arrival, he allegedly found a
letter the then fourteen year old K.B . had written to herself but addressed to
her mother, in which she described Montgomery's alleged assaults and sought
her mother's protection . The brother showed the letter to his mother, and
when she confronted Montgomery a melee erupted that soon involved the police
and resulted in an emergency protective order barring Montgomery from the
home . A few days later, however, K .B. again told one of the investigating
officers that she had fabricated her allegations. K.B . was on probation for a
burglary at the time, and the investigating officers testified that she claimed to
have made up the allegations against Montgomery in an attempt to divert
attention from herself.
Following the May altercation, Montgomery and K.B .'s mother separated
and by the time of Montgomery's trial they had divorced . Once they had
separated, apparently, that is where matters stood until the following August.
In August 2005, however, another of K.B .'s Indiana friends, who is also
Montgomery's great niece, accused K.B . of molesting her. The officer who
investigated that charge was the same officer who had investigated the Indiana
charges against Montgomery by the three friends who had slept overnight at
K.B .'s residence . In the course of his interview with K.B ., the officer again
asked about those earlier accusations. This time K.B . reported that
Montgomery had in fact abused her in Indiana, and she renewed her
allegations of rape in Kentucky as well . Those allegations were again referred
to Kentucky authorities and provided the basis for Montgomery's October 2005
indictment .
ANALYSIS
I. Evidence That Montgomery Had Similarly Abused Three Other Young
Girls was Properly Admissible As to the Sexual Abuse Charge Under the
Modus Operandi Exception to KRE 404(b)
The Commonwealth indicated prior to trial that it would offer the
testimonies of three girls from Indiana, each of whom, on separate occasions,
had been an overnight guest in the residence occupied by K. k3 . and
Montgomery . Each girl would testify that while she was sleeping in a room
with at least one other girl, Montgomery had awakened her by reaching into
her pants and that as soon as she awoke he had desisted, without comment or
further touching, and left the room . The sexual abuse charge in the November
2006 indictment involved virtually identical conduct . The trial court, after a
hearing, denied Montgomery's motion in limine to exclude this evidence,
finding it a "strikingly similar . . . method of sexual abuse."
Montgomery argues that this evidence was not admissible and that his
abuse conviction must therefore be reversed. He correctly notes that under
KRE 404(b) evidence of other crimes or bad acts is not admissible as proof of
character "in order to show action in conformity therewith ." Other-crimes
evidence may be admissible for other purposes, however, such as proof of
motive, opportunity, intent and plan . KRE 404(b)(1) . In particular, this Court
has upheld the admission of evidence of prior sexual misconduct as proof of
the corpus delicti in sex offense cases where the prior misconduct is sufficiently
similar to the charged offense to indicate that both acts were committed by the
same person . Wkersonn v. Commonwealth, 174 S .W .3d 451, 467-70 (Ky. 2005)
(discussing the sufficient commonality necessary to establish a "signature
crime") . In Clark v. Commonwealth, 223 S.W.3d. 90 (Ky. 2007), we recently
emphasized the narrowness of this "modus operandi" exception to KRE 404(b)'s
general rule of exclusion by recognizing
the fundamental principle that conduct that serves to
satisfy the statutory elements of an offense will not
suffice to meet the modus operandi exception .
Instead, the modus operandi exception is met only if
the conduct that meets the statutory elements
evidences such a distinctive pattern as to rise to the
level of a signature crime .
Id. at 98 . The trial court's decision regarding KRE 404(b) matters is reviewed
by this Court under an abuse of discretion standard, i.e., was it "arbitrary,
unreasonable, unfair or unsupported by sound legal principles." Id. at 95 .
Here K .B . testified that while she and an overnight guest were sleeping in
her family's computer room, she was roused by something touching her and
woke to find Montgomery reaching under her clothes and placing his hand on
her vagina. l When she stirred, Montgomery removed his hand and without
saying anything or touching her in any other way left the room . K.B .'s friends
all likewise testified that while sleeping over at K.B.'s house they were
awakened by Montgomery reaching his hand into their pants and placing his
hand on or near their vaginas . As soon as they awoke and moved away, he
desisted and without saying anything either he left or, in one instance, allowed
the victim to leave the room.
Under Clark, the mere facts that Montgomery touched or attempted to
touch the girls' genitals and that the girls were all roughly the same agetwelve or thirteen-would not justify invoking the modus operandi exception .
Appellate counsel has argued that, unlike the Indiana girls, K.B.'s description of the
event did not include a reference to Montgomery placing his hand "in her pants ."
To support this point, counsel cites the Bill of Particulars which makes no reference
to K.B .'s clothing . While how victims are clothed should not undermine a modus
operandi finding, we note that K.B., in fact, testified that Montgomery placed his
hand under her clothing .
However, the additional facts that Montgomery had access to all of the alleged
victims in his home, that he assaulted each of them in the same manner while
they were asleep with another girl or girls sleeping nearby, and that in each
case when the victim awoke he silently withdrew establish a pattern of conduct
distinctive enough to be deemed a modus operandi . The trial court
acknowledged these various similarities and the only difference proffered by
Montgomery (K.B. was his stepdaughter while the other three girls were not
related to him) before ruling the evidence admissible . On appeal Montgomery
continues to emphasize his different status as to the three Indiana girls but,
like the trial court, we deem that insufficient to undermine a finding of modus
operandi . In Clark, we noted that the defendant was in a priest/ counselor role
as to the child-witness while he was simply a family friend to the two childvictims and this resulted in different reasons and locations for his contact with
the three children, who testified to abuse "in many different places, such as
schools, bedrooms, bathrooms, living rooms, and vehicles ." Id. at 99 . By
contrast, Montgomery had nighttime contact with K.B . because she was his
stepdaughter and lived in his home. Similarly, he had nighttime contact with
the three Indiana girls because K.B. was his stepdaughter, she lived in his
home and the girls were K.B.'s overnight guests. In short, the trial court
correctly found a distinctive pattern of conduct and did not abuse its
discretion, at least with respect to the sex abuse charge, by admitting the
evidence under the modus operandi exception to KRE 404(b) .
II. The Consolidation Of The Sex Abuse Indictment With The Rape
Indictment for Trial Does Not Entitle Montgomery To Relief.
A. Montgomery Was Not Prejudiced By The Alleged Misjoinder Of His
Rape And Abuse Charges.
Montgomery next contends that the rape and abuse indictments should
have been tried separately. Under RCr 9 .12, of course, two indictments may be
tried jointly if the offenses could have been. joined in a single indictment, and
under RCr 6 .18 joinder in a single indictment is appropriate if the offenses "are
of the same or similar character or are based on the same acts or transactions
connected together or constituting parts of a common scheme or plan." These
rules must be applied in conjunction with RCr 9 .16 which requires separate
trials ifjoinder of offenses would result in prejudice to either party.
In this case, the joinder consisted of six sexual offenses against the same
minor victim in the same residence over at five and (one-half month period . The
sexual abuse charge was based on nighttime conduct that occurred a few
hours prior to the last alleged rape on the morning of May 20. These charges
can certainly be deemed "connected" or "parts of a common scheme or plan ."
Nevertheless, Montgomery claims he was prejudiced by the joinder citing cases
such as Rearick v. Commonwealth, 858 S .W.2d 185, 187 (Ky. 1993) wherein we
stated :
Yk
significant factor in identifying such prejudice is the extent to which
evidence of one offense would be admissible in a trial of the other offense ."
Significantly, Rearick and the other cases cited by Montgomery where joinder
was improper involved the trial of the same or similar offenses perpetrated
against different victims . See, e.g. Romans v. Commonwealth, 547 S .W.2d 128
(Ky . 1977) (rape charges as to two different women) . Cases involving similar
offenses against multiple victims present different considerations not
applicable here .
Montgomery correctly notes, however, that the evidence that he allegedly
molested the three girls in Indiana would not have been admissible under KRE
404(b) in a separate trial of the five rape charges . He then posits that unless
the Commonwealth was willing to forego using that evidence altogether K.B.'s
abuse and rape allegations should have been severed . Even assuming the trial
court abused its discretion by joining those offenses, Montgomery is not
entitled to relief unless he was prejudiced by the improper joinder. Jackson
V.
Commonwealth, 20 S.W.3d. 906 (Ky. 2000) . The joinder clearly did not
prejudice him with respect to the rape charges because he was acquitted of
those five offenses. As to the sexual abuse charge of which he was convicted,
the KRE 404(b) evidence on which he premises his misjoinder argument was
properly admissible as to that charge .
Finally, Montgomery argues that the joinder prejudiced him because it
may have led the jury to reach a compromise verdict. Specifically, he questions
why the jury would "believe sex abuse if they disbelieved the rapes?" He posits
that the jury compromised a verdict to "hedge their bet that he didn't commit
the rapes." As the Commonwealth correctly notes, however, the prejudice
required for relief under RCr 9 .16 must appear more clearly than as a matter of
mere speculation, Jackson v. Commonwealth, supra, and here Montgomery can
only speculate about the jury's reasoning. One obvious distinction is that
K.B .'s elder sister (whose testimony has not been challenged on appeal) and the
three Indiana girls also testified to sexual abuse by Montgomery .
B . The Sex Abuse Indictment Does Not Give Rise To A Presumption Of
Vindictiveness.
Montgomery also argues that the Commonwealth sought the sex abuse
indictment "vindictively" in retaliation for Montgomery's motion to exclude the
collateral sex abuse evidence regarding the three girls from Indiana. He relies
on Blackledge v. Perry, 417 U .S. 21 (1974), in which the United States Supreme
Court ruled that a prosecutor violated the due process rights of a defendant
who exercised his right to appeal a misdemeanor conviction when the
prosecutor obtained a new felony indictment based on the same conduct while
the misdemeanor appeal was still pending . In those post-conviction
circumstances, the Court explained, the prosecutor's act could reasonably be
presumed to have the impermissible intent of discouraging an appeal .
In United States v. Goodwin, 457 U.S. 368, 382 (1982), however, the
Court rejected any presumption of vindictiveness in the pre-trial setting, where
"[a] prosecutor should remain free . . . to exercise the broad discretion
entrusted to him to determine the extent of the societal interest in
prosecution ." The Court noted that prior to trial defendants routinely invoke
procedural rights that impose some burden on the prosecutor, as Montgomery
did in this case by moving to exclude the collateral sex-abuse evidence. But
"[i]t is unrealistic," the Goodwin Court explained, "to assume that a
prosecutor's probable response to such motions is to seek to penalize and to
deter. The invocation of procedural rights is an integral part of the adversary
process in which our criminal justice system operates ." Id. at 381 . Indeed, in
Dickerson v. Commonwealth, 278 S.W .3d 145 (Ky. 2009), we recently held that
the addition of new charges to address an evidentiary problem following
remand from this Court did not support a presumption of vindictiveness. The
suggestion of vindictiveness is even less supportable in the pre-trial setting,
where the Commonwealth is adjusting its case to developing facts and must
remain free to respond to defense motions in ways that protect "the societal
interest in prosecution." Goodwin, supra. This distinction is especially welltaken where, as here, the issue was not preserved by objection at trial .
Notably, Montgomery (does not contend that he was not legitimately subject to
the sex abuse charge, and the Commonwealth's decision to add it in light of
how the case was developing most assuredly does not raise a palpable error
subject to relief under RCr 10.26. Commonwealth v. Jones, 283 S .W .3d 665
(Ky. 2009) (noting that palpable error relief is available only for errors
appearing plainly on the record) . It may well be that the Commonwealth
sought the ninth-hour sex abuse indictment strategically, in hopes of
bootstrapping the collateral sex abuse evidence into Montgomery's rape trial,
but, as noted, such a strategy does not imply vindictiveness, and certainly not
such apparent vindictiveness as to justify palpable error relief.
In sum, although the trial court may have abused its discretion by
joining the rape and abuse offenses where joinder entailed the introduction of
collateral acts of sexual abuse A Montgomery's rape trial, the misjoinder, if
any, did not result in prejudice. Consequently, Montgomery is not entitled to
relief from his sex abuse conviction on this ground .
III. The Trial Court Properly Excluded Evidence of K.B .'s Collateral Sexual
Conduct.
Montgomery next contends that the trial court erroneously excluded
several pieces of evidence and that by so doing it usurped his right to present a
defense . His defense, essentially, was that K.B . had falsely accused him of sex
crimes because she resented his discipline and wished to remove him from the
family. In addition to an attack upon various inconsistencies within and
among K.B .'s different accounts of the alleged incidents in her statements to
police officers and to the prosecutor, this defense involved several lines of
proof. One such line was that K.B. had a history of making false accusations
against Montgomery, with the implication that the current accusations were
false as well. Another line of proof was that K.B . was a wild, sexually
precocious child which Montgomery argued was relevant to two aspects of his
defense: first that she resented his attempts to discipline and control her and
thus had a motive to have him out of her life; and second that, despite her
youth, she had the knowledge and lack of compunction necessary to make
credible, albeit false, allegations of sexual misbehavior. Yet another line of
proof was that K.B . had in the past and was again using false allegations
against Montgomery to deflect allegations of wrong doing against herself.
Although Montgomery was permitted to introduce some evidence along each of
these lines of proof, the trial court excluded some evidence pertinent to each
line as well. Montgomery maintains that the exclusions were erroneous under
13
the rules of evidence and denied him his constitutional right to present a
meaningful defense . We consider each line of proof in turn, beginning with
Montgomery's attempt to show that K .B. had accused him falsely in the past:.
A. Even If Erroneous, The Exclusion Of A Doctor's Opinion That K.B.
Was A Virgin in 2002 Was Rendered Harmless When The Opinion Was
Actually Presented To The Jury for Consideration.
At trial, Montgomery was permitted to offer proof and to argue that i n
2002, in November 2004, and again in May 2005, K .B . had accused hire of
"raping" and/or molesting her but that soon afterward, on all three occasions,
she had recanted her allegations . K.B . testified at trial that the 2002 incident
had actually involved fondling, not intercourse, but that at the time, being only
eleven years old, she had believed that the improper touching was "rape ."
Hence, she had accused Montgomery of rape, but later recanted. Montgomery
was also permitted to offer proof and to argue that, in early December 2004,
after the mother of one of K .B.'s Indiana classmates reported rumors of abuse,
K.B. denied that any abuse had occurred.
As part of his proof that the 2002 allegation was false, Montgomery
sought to introduce the deposition of the emergency room physician who had
examined K .B . in the wake of that allegation, which apparently was not
reported until three or four months after the alleged incident. In addition to
his testimony that K.B .'s exam had been normal with no visible damage to her
hymen, the physician testified that in his opinion the normal exam was
inconsistent with K.B.'s claim of rape and indicated that at the time K.B . was
still a virgin. The trial court permitted the introduction of the physician's
factual observations, but ordered that
his
opinions be redacted from the
deposition testimony. Montgomery argues that the physician was competent to
offer the opinion that K.B . had never been sexually penetrated and that the
trial court's contrary ruling rendered his trial unfair.
We need not address the first contention (although we note that we have
upheld testimony by gynecological experts to the effect that a "normal" exam
following an alleged rape, particularly an exam months after the alleged rape, is
not inconsistent with the allegation, see, e.g., Collins v. Commonwealth, 9,51
S.W.2d 569 (Ky. 1997) ; Garrett v. Commonwealth, 48 S .W .3d 6 (Ky . 2001)),
because even if the trial court erred by deeming a non-gynecologist's opinions
in this area inadmissible, there is no possibility in this case that the error had
a substantial effect on the outcome. Indeed, the court's ruling on the
testimony was not actually implemented and, in any event, K .B . herself
acknowledged that that she was not raped by Montgomery in 2002 . Thus, any
error in the handling of this issue was harmless . Winstead v. Commonwealth,
283 S-W-3d 678, 689 (Ky. 2009) (noting that a non-constitutional error may be
deemed harmless "if the reviewing court can say with fair assurance that the
judgment was not substantially swayed by the error") .
While the emergency room physician was prevented from opining that
K.B . was a virgin in 2002, he was allowed, perhaps through inadvertence, to
testify that in his opinion a penis had never penetrated K.B .'s vagina.
Notwithstanding the court's decision to exclude such statements from the
physician's deposition, that statement was not redacted, it was read to the
jury, and it figured prominently in the closing argument by Montgomery's
counsel. Montgomery thus had the benefit of the physician's opinion despite
the court's ruling, and the exclusion of other statements by the physician to
the same or similar effect could not have substantially swayed the jury's
decision . Furthermore, K.B . herself conceded during her trial testimony that
she had not been raped in 2002 . Given the evidence the jury actually heard,
both from the physician and K .B., the court's pretrial ruling on the physician's
testimony, however erroneous, was harmless . Winstead, supra.
B . The Trial Court Did Not Err By Excluding Evidence of K.B.'s
Collateral Sexual Conduct Allegedly Offered to Show K.B .'s Sexual
Knowledge and Motives to Accuse Montgomery .
In addition to proof tending to show that K.B .'s allegations were false,
Montgomery also sought to show that K.B. had both a motive and the ability to
make false sexual accusations . He argued, for example, that similar
allegations brought on behalf of her older sister against K.B .'s biological father
and that sister's own allegations against Montgomery (about which the sister
testified at trial) taught K.B . the power such accusations could have . He
testified, moreover, that he had tried to introduce discipline into the home and
to limit when and where K.B . could see her boyfriend . Montgomery maintained
that K.B .'s resentment of those restraints made her want to get rid of him and
prompted her allegations .
Additionally, Montgomery sought to testify and/or to cross-examine K .B .
concerning a sexually explicit note K.B . passed at school, a sexually explicit
website K.B . allegedly maintained on myspace.com, and sexual aggression K.B.
allegedly exhibited toward her brother's friends, all of which tended, he
claimed, to show that K.B ., despite her youth, had sufficient sexual knowledge
to fabricate the charges against him. A4ontgornery also sought to testify and to
cross-examine K.B . concerning statements she allegedly had made to
Montgomery proclaiming that she had had. sex with her older brother. His
objection to that relationship, he asserts, is what prompted the final altercation
in May 2005 and the ensuing allegations of rape.
The trial court disallowed all of this evidence concerning K.B .'s alleged
collateral sexual activity as violative of KRE 412, the so-called rape shield rule .
Under that rule, in cases involving alleged sexual misconduct, evidence is
generally not allowed which is offered to prove that an alleged victim engaged in
other sexual behavior or to prove an alleged. victim's sexual predisposition . The
rule is meant both to shield the victims of sex crimes from painful and
embarrassing questions and disclosures about their private sexual activities as
well as to preserve the fairness of the proceedings by excluding irrelevant
attacks on the victim's character and guarding against distracting the jury with
collateral matters.
I . KRE 412 Applies to Minors as Well as Adults.
Montgomery first argues that the rule does not apply to K.B . because as
a minor she is presumed not to have consented to sexual activity . He posits
that, being underage and incapable of consent, she cannot be prejudiced by
evidence that she engaged in other sexual behavior or even evidence that she
was sexually predisposed . Montgomery construes the purpose of the rule too
narrowly. It is not meant only to preclude evidence of "consensual" sexual
activity, but, as noted, it is also meant to protect victims from unduly
harassing cross-examination and to eliminate from trials immaterial evidence
about the victim's (character . Minors no less than adults can find questions
about their sexual activities humiliating and offensive, and, whatever the law's
technical rules about consent, evidence about a minor's character and
collateral sexual activity is no less subject to misuse by the jury than is similar
evidence about an adult. See People v. Parks, 766 N.W .2d 650 (Mich . 2009)
(collecting cases demonstrating that the vast majority of states to have
considered the issue have held that their rape shield laws apply to involuntary
as well as voluntary sexual conduct) . We therefore reject Montgomery's
contention that KRE 412 does not apply to minors.
2 . KRE 412(b)(1)(c) Is the Only Exception Potentially Relevant Here .
KRE 412 clearly applies here but the "shield" is not always absolute . The
rule itself recognizes three exceptions . Evidence of the victim's past sexual
experience with others is admissible if offered not as proof of character but "to
prove that a person other than the accused was the source of semen, injury, or
other physical evidence." KRE 412(b)(1)(A) . Evidence offered by the defense of
the victim's past sexual experience with the accused is admissible "to prove
consent ." KRE 412(b)(1)(B) . And, in general, evidence of the victim's past
sexual behavior is admissible if it "directly pertain[s] to the offense charged ."
KRE 412(b)(1)(C) . The rule's drafters noted that this third exception was
included only as a safety valve to allow for unanticipated circumstances in
which evidence of a victim's prior sexual conduct would be appropriate. They
cautioned, however, that it should be invoked "carefully and sparingly," so as
not to undermine the rule's objective "of protecting against unwarranted
attacks on the character of the alleged victim ." Robert G . Lawson, Kentucky
Evidence Law Handbook, p. 166
(4th
Ed . 2003) (citing and quoting from
Evidence Rules Study Committee, Kentucky Rules of Evidence-Final Draft, p.
36 (Nov . 1989)) .
The Commonwealth did not rely in this case on. semen, injury, or other
physical evidence to substantiate &BA allegations, and Montgomery did not
defend or seek to defend on the basis of consent The first two exceptions in
KRE 412(b)(1)(A) and (1) (B) therefore do not apply, and we are left with
exception (1)(C), the residual exception for evidence "directly pertaining to the
offense charged ." The trial court construed this exception narrowly and ruled
that K.B.'s alleged note to school friends and myspace website, and her alleged
his
behavior with her brother and toward
friends all pertained only to K .BA
character, not directly to the charged offenses, and thus were not admissible
under exception(I#CY Montgomery contends that the trial court read the
exception too narrowly, apparently construing "directly pertaining to the
offense charged" to require that the prior sexual behavior have a direct
connection with the behavior allegedly constituting the offense. He maintains
that prior sexual behavior pertains directly to the charged offense if it bears
materially on any aspect of his defense .
3. A Defendant's Constitutional Rights Must be Balanced Against
Legitimate State Interests Protected in Evidentiary Rules.
In so contending, Montgomery correctly points out that KRE 41.2 must be
construed, as must all the rules of evidence, in a. manner that does not
contravene his constitutional rights . He correctly notes that in several cases
the United States Supreme Court has held that a defendant's constitutional
right to present a meaningful defense trumped an evidentiary rule. See, e.g.,
Chambers v. Mississippi, 410 U .S . 284 (1973) (rules precluding hearsay and
impeachment of one's own witness, invoked to exclude three out-of-court
admissions by a witness that he, and not the defendant, had committed the
murder) ; Davis v. Alaska, 415 U.S 308 (1974) (rule protecting the
confidentiality of juvenile offense records, invoked to exclude the fact that key
prosecution witness may have been biased in favor of the prosecution because
he was on juvenile probation) ; Delaware v. Van Arsdall, 475 U .S . 673 (1986)
(rule excluding evidence more prejudicial than probative, invoked to exclude
the fact that in exchange for his cooperation a prosecution witness in a murder
case had had a criminal charge dismissed) ; Crane v. Kentucky, 476 U .S . 683
(1986) (although not specified, apparently the rule excluding irrelevant
testimony, implicitly invoked to exclude defendant's testimony describing the
physical and psychological circumstances in which his confession was
obtained) ; Rock v. Arkansas, 483 U.S . 44 (1987) (per se rule excluding all
hypnotically refreshed testimony, invoked to exclude crucial portions of
manslaughter defendant's own testimony regarding defective gun misfiring) ;
Olden v. Kentucky, 488 U.S . 227 (1988) (rule excluding evidence more
prejudicial than probative, invoked to exclude the fact that prosecuting witness
in a rape case was in an interracial relationship where defendant wished to
argue that protecting that relationship gave the witness a motive to fabricate
her rape allegations) ; Holmes v. South Carolina, 547 U .S . 319 (2006) (rule
limiting a defendant's ability to introduce evidence of a third-party perpetrator
where there is strong forensic evidence of defendant's guilt, invoked to exclude
evidence of a third-party who could have committed crimes) .
As these cases establish, Montgomery has a right under the federal
Constitution (and the Kentucky Constitution as well) to "a meaningful
opportunity to present a complete defense." Crane v. Kentucky, 476 U .S . at
690 (quoting from California v. Trombetta, 467 U.S. 479, 485 (1984)) ; Beaty v.
Commonwealth, 125 S .W-3d 196 (Ky. 2003) . That right, grounded in the Fifth,
Sixth, and Fourteenth Amendments to the United States Constitution and
Section I I of the Kentucky Constitution, includes, of course, Montgomery's
right to testify on his own behalf, Rock v. Arkansas, supra, and his right to
cross-examine the witnesses against him. Davis v. Alaska, supra. Indeed, "an
accused?s right to present his own version of events in his own words," the
United States Supreme Court has explained, is "Jelven more fundamental to a
personal defense than the right of self-representation." Rock, 483 U .S . at 52 .
The Supreme Court has recognized, moreover, that "a proper and important
function of the constitutionally protected right of cross-examination" is "the
exposure of a witness' motivation in testifying ." Delaware v. Van Arsdall, 475
U.S. at 678-79 (citation and internal quotation marks omitted) . These rights
must be balanced, however, against both the wide latitude trial judges retain
"to impose reasonable limits on cross-examination based on concerns about.,
among other things, harassment, prejudice, confusion of the issues, the
witness' safety, or interrogation that is repetitive or only marginally relevant,"
id, at 679, and the broad latitude state rule makers have "to establish rules
excluding evidence from criminal trials ." United States v. Scheffer, 523 U .S .
303, 308 (1.998) .
In Michigan v. Lucas, 500 0S . 145 (1991), the Supreme Court addressed
the need to balance these competing concerns in the context of a rape shield
law . The Court reversed, a decision by the Michigan Court of Appeals holding
that the notice requirement in Michigan's rape shield law violated, per se, the
Sixth Amendment in all cases where it was used to preclude evidence of past
sexual conduct between a rape victim and a criminal defendant. Noting that
the Michigan statute "represents a valid legislative determination that rape
victims deserve heightened protection against surprise, harassment, and
unnecessary invasions of privacy," id. at 150, the Court asserted that the Sixth
Amendment right to present relevant testimony "may, in appropriate cases,
bow to accommodate other legitimate interests in the criminal trial process ."
Id. at 149 (quoting from Rock, 483 U .S . at 55) . In upholding the rape shield
law's notice provision, the Court emphasized that any restrictions on a criminal
defendant's right to confront witnesses and to present relevant evidence, "'may
not be arbitrary or disproportionate to the purposes they are designed to
serve ."' Id. a t 151 (quoting from Rock, 483 U .S . at 56) .
In the wake of Lucas and Rock, numerous courts have held that with
those cases the Supreme Court established a balancing test: for evaluating, on
a case-by-case basis, Confrontation Clause and other Sixth Amendment
challenges premised upon the exclusion of evidence. Under that test, courts
must "determine whether the rule relied upon for the exclusion of evidence is
`arbitrary or disproportionate' to the `State's legitimate interests."' Barbe v.
McBride, 521 F .3d 443, 457
(4111
Cir. 2008) (quoting from Quinn v. Haynes, 234
F.3d 837, 849 (4th Cir. 2000) and discussing what the Fourth Circuit has
referred to as the "Rock-Lucas principle") . See also, e.g., United States v.
Pumpkin Seed, 572 F.3d 552
(8th
Cir. 2009) ; Ferensic v. Birkett, 501 F.3d 469
(6th Cir . 2007) ; White v. Coplan, 399 F.3d 18 (1st Cir. 2005) ; LaJOie v.
Thompson, 217 F.3d 663 (9th Cir. 2000) . The Supreme Court itself has applied
this standard in Holmes v. South Carolina, supra and United States v. Scheffer,
supra.
An evidentiary exclusion is not arbitrary if it meaningfully furthers a
valid purpose the rule was meant to serve. Holmes, supra; United States v.
Pumpkin Seed, supra. In determining whether the exclusion is
disproportionate, courts have weighed "the importance of the evidence to an
effective defense, [and] the scope of the ban involved" White v. Coplan, 399 F .3d
at 24 (citing Davis and Van Arsdall), against any prejudicial effects the rule was
designed to guard against . Barbe, supra; LaJoies, supra . Exclusions have been
found invalid where the probative value of the excluded evidence was
substantial, White; Barbe, and where the trial court failed to consider its
probative value, Holmes, but they have been upheld where the probative value
of the excluded evidence was deemed slight, Pumpkin Seed; Quinn . Cf. Van
Arsdall at 680 (holding that a defendant states a violation of the Confrontation
Clause where "[a] reasonable jury might have received a significantly different
impression of [the witness's] credibility had respondent's counsel been
permitted to pursue his proposed line of cross-examination .") .
4. The Trial Court's Rulings Reflect a Proper Balancing of The
Competing Interests .
With this constitutional background in mind, we turn again to KRE 412 .
Although we have not often had occasion to consider the application of KRE
412 (b) (1) (C), the residual exception to the rule, in the few cases we have
considered we have adopted an approach much like and completely consistent
with the balancing of interests required under the federal constitution. In
Barnett v. Commonwealth, 828 S .W .2d 361 (Ky. 1992), for example, we
construed a virtually identical provision in KRE 412's predecessor statute, and
held that in the face of medical evidence establishing that the young victim had
been sexually active, evidence of the victim's sexual contact with her brother
was crucial to the defense and should have been admitted as "directly
pertaining" to the charged offense. Similarly, in Anderson v. Commonwealth,
63 S .W .3d 135 (Ky. 2001), we again held that evidence of the child victim's
prior sexual activity "directly pertained" to the charges inasmuch as it provided
the defense's only means of countering medical evidence showing that the
victim had been sexually active. In Woodard v. Commonwealth, 219 S .W.3d
723 (Ky. 2007), Stringer v. Commonwealth, 956 S .W.2d 883 (Ky. 1997), and
Violett v. Commonwealth, 907 S .W .2d 773 (Ky. 1995), on the other hand, we
held, respectively, that marginally probative collateral evidence concerning the
victim's prior sexual activity, evidence of the victim's remote and doubtfully
relevant prior acts, and cumulative evidence of the victim's alleged conspiracy
with her boyfriend to "get the defendant out of the way" did not outweigh the
purposes of the rule and so did not "pertain directly" to the charged offenses .
We add little to this precedent by holding now that evidence of a. sexual offense
victim's prior sexual behavior pertains directly to the charged offense and thus
is admissible under the KRE 412(b)(1)(C) residual exception if, and only if,
exclusion of the evidence would be arbitrary or disproportionate with respect to
KRE 412's purposes of protecting the victim's privacy and eliminating unduly
prejudicial character evidence from the trial .
In this case, Montgomery sought to introduce evidence that K.B . had
passed a sexually explicit note at school, that she had posted sexually explicit
material on the Internet, that she had behaved in a sexually suggestive manner
toward her brother's friends, and that she had made statements about having
had sex with her brother. Montgomery first argues that this evidence was
probative of K.B.'s sexual knowledge and was necessary to counter the jury's
likely presumption that she would not have known about intercourse or about
male ejaculation unless Montgomery had in fact abused her . As Montgomery
notes, several courts have ruled evidence of a young victim's prior sexual
experience admissible on this alternative-source-of-knowledge ground . See
State v. Budis, 593 A . 2d 784 (N .J . 1991) (collecting cases) ; State v. Jacques,
558 A .2d 706 (Me. 1989) . In most of those cases, however, the victim was very
young at the time he or she made the allegations, generally under eleven; the
victim had had a well-documented prior experience; and the details of the prior
experience were strikingly like the details of the alleged offense . Here, while
K.B. conceded at trial that in 2002 when she first accused Montgomery of
"rape" she did not even know what the term meant, by May 2005, when she
first made her more detailed allegations in this case, she was fourteen years
old, old enough in our sexually saturated culture to have acquired a great deal
of sexual knowledge. K.B.'s jury was thus not likely to presume, as in the case
of younger victims, that K.B .'s knowledge must have derived from experience .
The evidence Montgomery sought to introduce, moreover, does not clearly
establish a similar prior incident, one the details of which could account for
some particularly striking detail in her accusations against Montgomery . In
terms of sexual detail, indeed, K .B.'s accusations were fairly generic, the sort of
detail a teenager might know, and thus the excluded circumstantial evidence,
no striking details of which have been brought to our attention, would have
added little, if anything, to the jury's understanding of K.B.'s knowledge. On
the other hand, the excluded evidence posed a substantial threat of casting
K.B .'s character in a bad light and distracting the jury from the real issues in
the case, the principal evils which KRE 412's shield is intended to avoid . With
respect to K.B .'s knowledge, therefore, the exclusion of the evidence was
neither arbitrary nor disproportionate, and on that ground, accordingly, the
trial court did not abuse its discretion under KRE 412 or deprive Montgomery
of any constitutional right.
Montgomery also contends that the excluded evidence was probative of
K.B.'s motive to fabricate her allegations. The argument is that K.B . resented
Montgomery's discipline, resented his curtailing of her sexual activities in
particular, and, specifically, that his objecting to what he suspected was a
sexual relationship between K .B . and her brother precipitated the May 26,
2005 uproar that culminated in K.B.'s allegations. Montgomery insists those
allegations were intended to remove him from the household . As Montgomery
correctly notes, substantially probative evidence that a sex offense victim has a
motive to fabricate charges has received strong constitutional protection even
in the face of legitimate countervailing interests. Olden v. Kentucky, supra;
White v. Coplan, supra; United States v. Platero, 72 F.3d 806 (loth Cir. 1995)
(citing Olden) . The evidence must be substantially probative, however . The
exclusion of speculative or merely cumulative evidence is not rendered
arbitrary or disproportionate merely because the word "motive" has been
invoked. In Violett v. Commonwealth, supra, for example, a case very similar to
this one, a stepfather accused of sexually abusing his stepdaughter sought to
introduce her letters describing sexual activity with her boyfriend so as to
bolster his defense that the two young people fabricated the abuse allegations
in order to get rid of him . This Court held that the trial court had not abused
its discretion under KRE 412 by excluding the letters and any other reference
to the stepdaughter's sexual activity . The defendant had been given ample
opportunity otherwise to develop his conspiracy theory, we noted, and thus the
sexual-activity evidence was merely cumulative .
In this case, too, Montgomery was permitted to develop his "resentment
of discipline" defense by testifying and by questioning K.B . about instances
when he had denied K .B. some privilege, ordered a- boyfriend to go home,
forbade K.B . from seeing certain friends, or ordered K.B . to stay in the house
and she, allegedly, had rebelled. Montgomery was also permitted to testify that
the May 26th uproar arose when he objected to K .B.'s brother's presence in the
family because K.B . and the brother were "too close ." K.B .'s note to school
friends, her alleged Internet postings, her alleged aggression toward her
brother's friends, and the alleged relationship between K.B . and her brother
were thus no less cumulative than the daughter's alleged sexual relationship in
I/Olettand were even more apt to cast K.B.'s character in a bad light.
Finally, we are compelled to rate that Montgomery's suspicions about
K.B. and her brother appear to have been merely that, suspicions .
Montgomery has referred us to nothing in the record which might lend
credence to them. In the absence of any facts giving probative value to those
suspicions, they were properly excluded under KRE 412 as merely speculative .
Davenport v. Commonwealth, 177 S .W.3d 763 (Ky. 2005) (not erroneous to
exclude evidence of merely speculative defense theories) .
In sum, the exclusion of evidence of K.B.'s alleged sexual boasting in a
school note and myspace page, her alleged aggression toward her brother's
friends, and her alleged relationship with her brother under KRE 412 was
neither arbitrary nor disproportionate to the legitimate interests protected by
the rule. The trial judge's rulings comported fully with the balancing test. to be
applied in the wake of Lucas and Rock when defendants seek to offer evidence
marginally relevant to a defense but contrary to important interests addressed
in state evidentiary rules.
C. The Trial Court Did Not Err By Excluding Evidence That Abuse
Allegations Had Been Made Against K.B .
Montgomery also pursued a third line of proof, which, like the second,
was meant to show that K.B . had a motive to make false accusations. He was
allowed to introduce the fact that in May 2005, when the family had its final
blowup and K.B . made the allegations that led to his indictment, K.B . was on
probation for a burglary offense. He argued that K.B . made the allegations
against him in hopes of somehow diverting attention from her own legal
problems, and, indeed, there was police testimony to the effect that when K.B.
recanted her allegations a few days after making them, she said that when she
made the allegations protecting her probation had been on her mind. As noted
above, K.B.'s recantation put a halt to any investigation of her allegations until
August 2005, when she recanted her recantation, as it were, and renewed the
allegations which then led to Montgomery's indictment .
Montgomery sought to introduce evidence showing that a few days prior
to K.B .'s renewed allegations in August, two of Montgomery's relatives had
29
complained to Indiana authorities that K .B. had sexually abused their young
children. It was during questioning in Indiana about those allegations against
her that K .B . renewed her prior allegations against Montgomery . Montgomery
sought to introduce the complaints of abuse against-K.B . in order to argue that
she had again accused him falsely in order to divert attention from herself and
her own issues . The trial court disallowed any evidence'of K.B .'s alleged abuse
of others, however, as violative of KRE 412 . Montgomery again argues that the
trial court erred by applying KRE 41.2 in a way that deprived him of vital
defense evidence. We disagree .
Again, only the residual exception to KRE 412 is potentially applicable to
the evidence of K.B.'s alleged abuse of others, and we agree with the trial court
that evidence of that alleged abuse of Montgomery's young relatives did not
"directly pertain" to the charges against Montgomery . Moreover, balancing
Montgomery's right to present a defense against legitimate interests reflected in
KRE 412 as discussed above, the exclusion of that evidence was neither
arbitrary under the rule nor disproportionate to the rule's purposes . The
exclusion plainly served to shield K .B. from an attack upon her character, and
it also served to prevent what was virtually certain to become a highly
confusing and time consuming trial-within-the-trial regarding the validity of
the allegations against K.B ., a matter distinctly collateral to the issues properly
before the jury. Against those very real concerns, the probative value of the
evidence of allegations made by Montgomery's Indiana relatives was slight.
Although K.B .'s interview regarding the Indiana allegations provided an
occasion for the renewal of her allegations against Montgomery, it provided only
weak evidence of a motive for that renewal . The occasion was adequately
explained to the jury when the Indiana investigator testified that he called K.B .
in on "another matter" and that when he finished talking to her about that
matter asked her again. about the 2004 allegations against Montgomery .
In addition, with respect to K.B .'s alleged motive, Montgomery does not
argue, and there is no suggestion in the record, that this is a case like Davis,
supra, and like Van Arsdall, supra, in which there is the possibility that the
prosecuting witness cooperated with the police in exchange for leniency or to
protect her probationary status. Nor is this a case, like Davis, in which K.B .
might have accused Montgomery of a crime in order to deflect suspicion from
herself for that very same crime . Instead, Montgomery argues that K.B . hoped
to divert attention from her alleged abuse of others by accusing him of different
abuse . There is very little logic, and thus very little force, to that argument. As
far as diverting suspicion is concerned, K .B. would have scant motive to accuse
Montgomery of abusing her, since that accusation would have no bearing on
different allegations in which she was the alleged abuser. In short, the
evidence of K.B .'s alleged abuse of Montgomery's young relatives had
questionable probative value and, given its highly prejudicial potential, its
exclusion did not amount to a disproportionate application of KRE 412 .
D. The Trial Court Properly Applied KRE 412, the Specifically
Applicable Evidentiary Rule, As Opposed to the General Provisions of KRE
404(b).
Finally, Montgomery argues that notwithstanding KRE 412, the evidence
of K.B .'s prior and collateral sexual behavior should have been admitted under
KRE 404(b) as so called reverse 404(b) evidence . This reverse evidence would
tend not to inculpate but rather to exculpate Montgomery by proving K.B .'s
motive for making false allegations as opposed to proving K.B .'s character
generally, an impermissible use. As noted above, KRE 404(b) is a very general
rule excluding much character evidence, but providing that evidence of "other
crimes, wrongs, or acts," may be admissible if offered for some purpose other
than to prove character and action in conformity therewith such as "proof of
motive . .
It is a commonplace principle of statutory construction, however, that
where statutory provisions overlap the provision that deals more specifically
with the matter at issue controls . Light v. City of Louisville, 248 S .W .3d 559
(Ky. 2008) . Here, clearly, KRE 412 addresses the evidence of K.B.'s alleged
sexual behavior more specifically than do the general provisions of KRE 404(b) .
By its own terms, moreover, KRE 404(a)(2) provides that an accused cannot
introduce character evidence regarding the victim of criminal sexual conduct.
This language is generally viewed as a reference to KRE 412, thus
subordinating KRE 404 to that rule . Underwood and Weissenberger, Kentucky
Evidence Courtroom Manual 125 (2009-2010 Ed.) . Accordingly the trial court
correctly looked to KRE 412 in assessing the admissibility of evidence regarding
K.B.'s alleged collateral sexual conduct.
IV. Montgomery's Alleged Errors in the Penalty Phase of His Trial Do Not
Entitle Him to Relief.
Montgomery next complains that he was improperly sentenced. He
32
contends first that the trial court unfairly and improperly continued the
penalty phase of the trial to allow the Commonwealth to perfect its proof of
Montgomery's prior felony convictions in Indiana, proof necessary to establish
Montgomery's persistent felon status. Montgomery also argues the certified
proof of his prior felonies was admitted without a proper foundation . Finally,
Montgomery contends palpable error occurred when the jury returned a firstdegree persistent felon sentence without having also recommended an
unenhanced sentence for his underlying sexual abuse offense. We disagree
with all three contentions .
A. The Trial Court Did Not Abuse Its Discretion By Granting The
Commonwealth A Brief Continuance Within Which To Perfect Its Proof Of
Montgomery's PFO Status.
The jury convicted Montgomery of sexual abuse late on a Thursday night.
The court reconvened the next morning to address Montgomery's sentencing .
The Commonwealth alleged that Montgomery had been convicted of at least
two prior felony offenses2 and thus was subject to enhanced sentencing as a
persistent felony offender (PFO) under KRS 532 .080 . Before the opening of the
penalty phase, Montgomery moved, in essence, to have the PFO charge
dismissed because the proof the Commonwealth had proffered of his prior
convictions-records of Indiana felony judgments-had not been certified by an
Indiana judge as required by KRS 422 .040 . That statute provides in part that
the judgment of another state shall be given full faith and credit in Kentucky if
The Commonwealth eventually introduced evidence of five prior felony offenses on
the persistent felony offender charge.
33
it is attested by the clerk of the foreign court "and certified by the judge, chief
justice, or presiding magistrate of th[at] court ." The records of the Indiana
judgments the Commonwealth proposed to rely upon had been attested by an
appropriate clerk, but they had not been certified by an appropriate judge.
Montgomery argued that without the judicial certifications the judgments were
inadmissible and that without the judgments the Commonwealth could not
meet its burden of proving his PFO status. The court acknowledged that
Montgomery had raised a valid concern about the competency of the records,
but rather than dismiss the PFO charge the court continued Montgomery's
penalty phase from that day, Friday, until the following Wednesday to allow the
Commonwealth an opportunity to perfect its proof. The Commonwealth
obtained the required certifications, and, as noted above, when Montgomery's
sentencing was resumed the jury found him to be a first-degree persistent
felon . Montgomery now contends that the continuance of the penalty phase of
his trial to allow the Commonwealth to shore up its proof rendered the trial
proceedings fundamentally unfair. We disagree .
As Montgomery concedes, the granting of a continuance is in the sound
discretion of the trial court and will not provide grounds for relief absent an
abuse of that discretion. Eldred v. Commonwealth, 906 S.W .2d 694 (Ky. 1994) .
Among the factors bearing on the court's decision are the length of the delay;
the inconvenience apt to be imposed on parties, witnesses, jury, counsel, and
court; whether the delay is purposeful or otherwise caused by the party
desiring the continuance ; and whether the opposing party would suffer any
undue prejudice . Id. at 699 (citing Snodgrass v. Commonwealth, 814 S .W.2d
579 (Ky. 1991)) .
Here, the three day continuance was not significantly inconvenient, but
Montgomery maintains that it was caused by the Commonwealth's lack of
diligence in marshalling its evidence and was unduly prejudicial in that it
denied him the windfall of what he insists would and should have been a PFO
acquittal. The Commonwealth's fault was not a lack of diligence, however . It
timely obtained sufficient proof of Montgomery's PFO status but erred in
determining precisely how to authenticate the out-of-state proof. As the trial
court correctly observed, the issue raised was not about the sufficiency of the
Commonwealth's evidence but rather its competency .
In Merriweather v. Commonwealth, 99 S .W.3d 448 (Ky. 2003), a. case in
which the defendant had been deemed a PFO on the basis of uncertified prior
judgments, we held that the uncertified records were incompetent and required
that the PFO finding be reversed . We further held that the remedy was not the
dismissal of the PFO allegation, for which sufficient albeit incompetent
evidence had been introduced, but instead a remand for a new sentencing at
which time the Commonwealth would have an opportunity to correct the initial
flaw .
Under Merriweather, then, the trial court here could have admitted the
Commonwealth's questionable proof with the possibility, in the event of a PFO
finding, that the case would eventually be remanded for the Commonwealth to
perfect its proof, or the court could, as it did, grant at the outset the relief
Merriweather declares is appropriate and require the Commonwealth to perfect
its sufficient but flawed PFO proof if it could . This is all the relief to which
Montgomery was entitled, and he was not unduly prejudiced by being denied
more . Although the Commonwealth's lapse would not have occurred had the
rule and statute been carefully read, the mistake was not an egregious one,
and the trial court neither abused its discretion nor denied. Montgomery a fair
penalty phase by giving the Commonwealth a reasonable opportunity to correct
it.
B. The Trial Court Did Not Err By Admitting Duly Certified Records Of
Prior Judgments Without Additional Authentication .
The duly certified copies of the Indiana records were introduced at
Montgomery's sentencing through the testimony of a Kentucky probation and
parole official, who, without claiming any prior knowledge of them, read from
the records the facts pertinent to the PFO charge . Montgomery next contends
that even having certified its copies of the Indiana records, the Commonwealth
still failed to authenticate them by means of a witness from the Indiana agency
that created them, a witness who could testify that the records were what they
purported to be .
As the parties note, our Court of Appeals addressed this issue at some
length in Skimmerhorn v. Commonwealth, 998 S .W.2d 771 (Ky . App. 1998) .
That Court correctly observed that under KRE 1005 the contents of official
federal, state, county, or municipal records "may be proved by copy, certified as
correct in accordance with KRE 902 or testified to be correct by a witness who
has compared it with the original ." (emphasis supplied) . Either method of
36
authentication suffices under the rule, and accordingly the Court of Appeals
held, correctly, that the pertinent contents of a prior judgment could be
introduced in a PFO proceeding by means of a copy of the judgment, duly
certified in accordance with KRE 902 (and with KRS 422 .040 we would add),
even without the testimony of the record's custodian or anyone else familiar
with it. Montgomery (does not dispute that ultimately the copies of his Indiana
judgments were properly certified in accordance with the applicable statutes
and rules. The trial court did not err, therefore, when it permitted the contents
of those records to be introduced through a, Kentucky probation and parole
officer.
Against this conclusion Montgomery relies on several casesMer-riweather v. Commonwealth, supra; Robinson v. Commonwealth, 926
S .W.2d 853 (Ky. 1996); Hall v. Commonwealth, 817 S .W .2d 228 (Ky. 1.991) ;
Commonwealth v. Willis, 719 S.W.2d 440 (Ky. 1986) ; and Hobbs v.
Commonwealth, 655 S .W.2d 472 (Ky. 1983)-all of which imply, he maintains,
that both certification and custodian testimony are required to authenticate,
for PFO purposes, the record of a prior conviction . His reliance on these cases
is misplaced . As pertinent here, these cases all hold or acknowledge that a
copy of the prior judgment itself (not the mere reflection of that judgment in
some other agency's records) is necessary to prove a. prior conviction . None of
these cases, however, addresses how the record of the prior judgment is to be
authenticated, although in Robinson we refer to "exemplification" under KRS
422 .040 and "a witness who can testify" concerning the record's authenticity as
alternative methods of establishing the admissibility of court data.. Id. a t 854 .
These, of course, are the alternatives expressly provided for under KRE 1005,
which applies to records of conviction no less than to other official records .
None of the cases Montgomery has referred us to imply, much less hold,
anything to the contrary.
C. The Trial Court's Failure To Instruct The Jury To Impose An
Underlying Sentence For The Primary Offense Before Imposing An
Enhanced PFO Sentence Did Not Amount To A Palpable Error.
Following the introduction of penalty phase evidence, the jury was
instructed to decide whether Montgomery was a persistent felon and if so to fix
his sentence at between ten and twenty years. If the jury determined that
persistent felon status had not been established, it was instructed to sentence
Montgomery on the underlying sexual abuse offense to between one and five
years. Montgomery did not object to these instructions. In accord with them,
the jury found that Montgomery was a persistent felon and, without fixing a
sentence for the underlying offense, sentenced him to twenty years'
imprisonment as a PFO . 3 Montgomery now contends that the instructions
should have required the jury to fix an underlying sentence first before
recommending any PFO sentence . This latter procedure is the one approved in
Commonwealth v. Reneer, 734 S.W.2d 794 (Ky. 1987) and is arguably required
under KRS 532 .080(1), which provides that the PFO sentence shall be fixed "in
Although the jury did not fix an underlying sentence, the trial court did.
Montgomery's final judgment imposes a five year sentence for the offense of firstdegree sexual abuse . The propriety of this has not been raised nor is it germane to
our disposition of this issue.
38
lieu of the sentence of imprisonment assessed . . . for the crime of which [the
defendant] presently stands convicted. "4 Montgomery concedes that this issue
is not preserved, but seeks review for palpable error under RCr 10.26 . That
question, however, has already been decided against him.
In Montgomery v. Commonwealth, 819 S .W.2d 713 (Ky. 1991), we held
that where, as here, there is no possibility that the PFO sentence is unlawful,
any error in not requiring the jury to fix an underlying sentence was a mere
procedural defect not subject to review in the absence of a contemporaneous
objection. Although in Montgomery we did not expressly review the allegedly
faulty sentencing procedure for palpable error, we clearly indicated that absent
some possibility of an illegal sentence, any mere procedural error did not result
in a manifest injustice . We expressly so hold today, and conclude that the
jury's not having fixed an underlying sentence does not entitle Montgomery to
palpable error relief. Commonwealth v. Jones, supra, (noting that palpable
error relief is not available unless the error resulted in a manifest injustice) .
CONCLUSION
In sum, Montgomery is not entitled to relief with respect to either his
conviction or his sentence . Although Montgomery's trial included evidence of
collateral acts of sexual abuse against third parties, evidence that arguably
required the severing of the rape and abuse charges against him, the joint trial
was not prejudicial because Montgomery was acquitted of the rape charges and
This Reneer procedure is highly preferable because in those cases where the only
reversible error relates to the PFO charge, there is a sentence on the underlying
charge, limiting the necessary proceedings on remand.
39
the collateral act evidence was admissible with respect to the abuse charge .
Nor was Montgomery's trial marred by the exclusion of defense evidence. His
expert's opinion regarding K.B .'s virginity was introduced despite the trial
court's contrary ruling, and otherwise the evidence of K.B .'s prior sexual
conduct was properly excluded under KRE 412 . The exclusion did, not violate
Montgomery's right to present a meaningful defense . Nor, finally, was
Montgomery improperly sentenced. The trial court did not abuse its discretion
by giving the Commonwealth. a brief continuance to further certify its PFO
proof; the certified proof was properly admitted without additional
authentication by a record custodian ; and the trial court's failure to have the
jury recommend a sentence for Montgomery's underlying sexual abuse offense
did not render Montgomery's PFO sentence manifestly unjust. Accordingly, we
affirm the October 8, 2007 Judgment of the Trimble Circuit Court .
Minton, C.J . ; Cunningham, Schroder, Scott, and Venters, JJ ., concur .
Noble, J ., concurs in result only.
COUNSEL FOR APPELLANT:
Susan Jackson Balliet
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE :
Jack Conway
Attorney General
Jason Bradley Moore
Assistant Attorney General
Office of Criminal Appeals
Attorney General's Office
1024 Capitol Center Drive
Frankfort, KY 40601-8204
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