ROBERT EUGENE DENNIS V. COMMONWEALTH OF KENTUCKY
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RENDERED : MARCH 1.8, 2010
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2008-SC-000049-MR
ROBERT EUGENE DENNIS
V
ON APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE THOMAS O . CASTLEN, JUDGE
NO. 06-CR-00760
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE ABRAMSON
VACATING AND REMANDING
Robert Dennis appeals as a matter of right from a Judgment of the
Daviess Circuit Court sentencing , him to sixty-five years in prison following a
jury determination that he had sodomized and sexually abused S .J ., his
stepdaughter. Dennis, who denied having had any sexual contact with his
stepdaughter, claims the trial court erred by excluding evidence that S .J . had
on a prior occasion made a false accusation of sexual abuse against other
persons. We reject Dennis's claim on the record as it now stands but agree
with him that he was entitled to have the trial court inspect Cabinet for Health
and Family Services (CHFS) records pertaining to the prior accusation and to
have released to him any records bearing on the falsity of S.J.'s prior
allegations. Because the requested records were never produced for the court's
review, we vacate the judgment and remand for the trial court's consideration
of those materials . In evaluating the admissibility of prior accusations, the
trial court must first determine whether they have been shown to be
demonstrably false, and if so, it must then consider the probativeness of the
evidence pursuant to KRE 608(b) . If the evidence is "probative of truthfulness
or untruthfulness," it must still pass the balancing test in KRE 403 in order to
be admissible . As we discuss infra, depending upon the outcome of the court's
review of the CHFS materials, Dennis may be entitled to a new trial but,
alternatively, should there be no additional admissible evidence, his prior
judgment is to be reinstated by the trial court .
RELEVANT FACTS
The Commonwealth's evidence established that S .J . was born in January
1995 and that she has a sister, L.A., who is about eleven years her elder. S .J.'s
parents separated in about 1999, and her mother began residing with Dennis
in about 2001 . Her mother and Dennis married in 2003 . They resided with
S .J. in a small trailer on First Street in Owensboro, where L.A. would
occasionally stay with them for a week or two at a time . The charges against
Dennis arose in March 2006, when S .J ., then eleven years old, informed her
mother that Dennis had subjected her to acts of anal and oral sodomy, the last
such act having occurred the previous December. S.J.'s mother took her to the
emergency room, where hospital personnel referred S .J .'s allegations to the
Owensboro Police .
S .J . eventually told police investigators and investigators from CHFS that
Dennis's abuse had continued sporadically for about four years . At trial,
although unsure of the dates, she testified in considerable detail to three acts
of sodomy and to another incident when Dennis placed his mouth on her
breast . She testified that during one of the acts of anal sodomy a neighbor had
walked in on them and had appeared shocked. The neighbor, James Goins,
testified that he had entered Dennis's trailer to offer Dennis a beer and had
found Dennis sitting in a chair holding S.J . on his lap . According to Goins,
Dennis had his hand up S .J .'s dress and was rocking her back and forth .
When Dennis realized that Goins was there, he screamed at him to get out .
Two witnesses testified for the defense . Dennis denied having had any
sexual contact with S .J. and claimed that her allegations had been instigated
by her sister, L.A. Dennis maintained that L.A. resented him as a stepparent
and had had numerous conflicts with him. The last such conflict, he testified,
occurred just a few days before S .J. made her allegations. L.A. had been
making one of her occasional stays in the household, and, frustrated by her
unwillingness to help around the house, Dennis and S .J .'s mother had insisted
that she leave . According to Dennis, this made L.A. very angry . A few days
later, L.A. stopped by to visit with S.J. Dennis testified that the two girls spent
about a half hour locked in the bathroom and about a half hour after L .A . left
S.J . made the allegations against him. Dennis claimed that Goins, the
neighbor, also bore a grudge against him after a recent fight .
S .J .'s mother testified on Dennis's behalf and generally confirmed his
testimony concerning L.A. In particular, she seconded his testimony that L.A.
had visited S .J . shortly prior to S .J .'s allegations . L.A . and S .J . testified,
however, that L.A. had not visited that day . S.J. testified that, although Dennis
had never overtly threatened her, she had said nothing about his abuse
because she was afraid of him . She had finally decided to speak up, however,
because she concluded that if she did not the abuse would continue .
As noted, the jury rejected Dennis's defense and found him guilty of
three counts of first-degree sodomy and one count of first-degree sexual abuse .
The jury recommended twenty-year sentences for each sodomy count and five
years for the sexual abuse count, all to be served consecutively, for a total
sentence of sixty-five years . The trial court imposed the recommended
sentence .
Dennis contends on appeal that his defense was unduly impaired by the
exclusion of evidence that in about 2001, when S.J. was five or six years old,
she accused her father, along with her sister, L.A., and L.A.'s boyfriend, of
touching her vaginal area inappropriately after a dog had jumped on her lap
and licked or scratched her groin. Apparently S.J . told her mother about the
incident, and she reported it to the police . Police and CHFS investigators
eventually determined that no wrongdoing could be substantiated, and so the
matter was dropped.
Prior to trial, Dennis sought discovery of CHFS records pertaining to that
2001 incident and also moved in limine to be allowed to impeach S .J.'s veracity
with what he characterized as proof of that prior false allegation of sexual
misconduct . The trial court granted the discovery request, with limitations
that will be explained below, but following a KRE 104 admissibility hearing in
which testimony was offered by a CHFS investigator and S.J.'s mother,
disallowed any evidence at trial concerning S.J.'s 2001 allegations . Dennis
complains that the trial court mishandled the discovery matter by failing to
obtain for the court record and then to review those potentially exculpatory
materials. He further contends that the trial court erred by excluding the
evidence he had of S.J.'s prior false allegations. Although on the record before
us we reject this latter contention, we agree with Dennis that he was entitled to
have the trial court inspect the records which CHFS failed to produce.
Consequently, we must remand for those records to be acquired, if they exist,
and then reviewed and handled in the manner described herein .
ANALYSIS
I. On The Existing Record, Dennis Was Not Entitled To Cross-Examine
S.J. Concerning The 2001 Incident Because the Allegations Were Not
Demonstrably False.
Prior to trial, Dennis sought to explore the circumstances surrounding
the 2001 episode when S .J. apparently complained that a dog had jumped on
her lap and that afterward her father, her sister, and her sister's boyfriend had
touched her inappropriately. CHFS investigated that incident, but was unable
to substantiate any impropriety and consequently closed its file . As noted, at
the KRE 104 admissibility hearing, Dennis called the CHFS investigator
involved in the 2001 incident and S .J.'s mother. Dennis claimed that S .J .
fabricated the earlier complaint and contended that he should be permitted to
use evidence of that prior fabrication to impeach S .J .'s truthfulness and
thereby cast doubt on her claims against him . The trial court denied Dennis's
motion, finding the allegations were not demonstrably false.
Dennis correctly notes that KRE 608 permits an attack on a witness's
credibility and that under KRE 608(b) that attack may take the form of crossexamination about specific instances of conduct if, in the court's judgment, the
specific instances are "probative of truthfulness or untruthfulness ."' The rule
cautions, however, that "[n]o specific instance of conduct of a witness may be
the subject of inquiry under this provision unless the cross-examiner has a
factual basis for the subject matter of his inquiry ."
Dennis also relies on KRE 404, which provides in relevant part for the
introduction of evidence concerning either a victim's or a witness's character,
KRE 608(b) provides in pertinent part :
Specific instances of the conduct of a witness, for the
purpose of attacking or supporting the witness'
credibility, other than conviction of crime as provided in
rule 609, may not be proved by extrinsic evidence. They
may, however, in the discretion of the court, if probative
of truthfulness or untruthfulness, be inquired into on
cross-examination of the witness; (1) concerning the
witness' character for truthfulness or untruthfulness, or
(2) concerning the character for truthfulness or
untruthfulness of another witness as to which character
the witness being cross-examined has testified. No
specific instance of conduct of a witness may be the
subject of inquiry under this provision unless the crossexaminer has a factual basis for the subject matter of his
inquiry.
including his or her character for truthfulness .2
(a) Character evidence generally. Evidence of a
person's character or a trait of character is not
admissible for the purpose of proving action in
conformity therewith on a particular occasion, except :
(2) Character of victim generally. Evidence of a
pertinent trait of character of the victim of the crime
offered by an accused, other than in a prosecution for
criminal sexual conduct, or by the prosecution to
rebut the same, or evidence of a character trait of
peacefulness of the victim offered by the prosecution in
a homicide case to rebut evidence that the victim was
the first aggressor;
(3) Character of witnesses. Evidence of the
character of witnesses, as provided in KRE 607, KRE
608, and KRE 609 .
Although KRE 404(a)(2) suggests 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, the rape shield law, which "governs
the admissibility of such a victim's behavior and reputation for past sexual
behavior." Underwood and Weissenberger, Kentucky Evidence Courtroom
Manual 125 (2009-2010 ed .). The rape shield provision in KRE 412 prohibits,
except in carefully delineated circumstances, the admission of evidence (1)
"offered to prove that any alleged victim engaged in other sexual behavior" or
(2) "offered to prove any alleged victim's sexual predisposition ." With respect to
With respect to the victim's character, however, KRE 405 in pertinent part limits
the admissible evidence to testimony "as to general reputation in the community or
by testimony in the form of opinion." That rule does not allow for evidence of a
victim's specific instances of conduct.
a witness's character for truthfulness, KRE 404(a)(3) merely incorporates KRE
608, and thus does not provide for any rights in addition to those created by
the latter rule .3
These rules, moreover, like the other rules providing for the admission of
evidence, are all subject to the KRE 403 balancing test, which permits the
exclusion of otherwise admissible evidence "if its probative value is
substantially outweighed by the danger of undue prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, or needless
presentation of cumulative evidence ." The probative value of the prior
allegation, therefore-both its factual basis and its materiality-is of crucial
importance to the admissibility determination .
Under these and similar rules, numerous courts, both federal and state,
have held that the credibility of the complaining witness in a sex crime case
may be attacked by cross-examination concerning a prior false accusation .
This is so notwithstanding the fact that such an attack implicates KRE 412,
the rape shield rule. Pursuant to that rule, as noted above, evidence that the
alleged victim of sexual misconduct "engaged in other sexual behavior" is
generally not admissible in any proceeding involving the alleged misconduct .
False allegations of abuse, however, do not involve "other sexual behavior," and
thus evidence of such false allegations is not barred by the rape shield rule and
3
KRE 404(b), of course, allows for the introduction of evidence of other crimes,
wrongs, or acts not to prove a person's general character, but as proof of some
particular fact such as a person's motive, intent or plan . Dennis does not claim,
however, that S .J.'s purportedly false prior accusation is evidence of anything but
her tendency not to tell the truth.
may be admitted in accord with the other rules of evidence . See Lawson,
Kentucky Evidence Law Handbook ยง 2 .30[7]
(4th
ed . 2003) (noting that drafters
of federal rape shield rule did not intend for it to apply to false accusations and
the federal courts have interpreted it accordingly) . See also Nancy M. King,
"Impeachment or Cross-Examination ofProsecuting Witness in Sexual Offense
Trial by Showing that Similar Charges were Made Against Other Persons," 71
ALR 4th 469 (1989) . To insure that the rape shield rule is not circumvented,
however, the proponent of such evidence is required to make a preliminary
showing that the prosecuting witness made a prior accusation and that the
accusation was in fact false . State v. Guenther, 854 A .2d 308 (N .J . 2004)
(collecting cases) ; United States v. Kenyon, 481 F.3d 1054 (8th Cir. 2007) .
Courts have differed in the standard of proof the defendant must satisfy
to make this preliminary showing. Some permit cross-examination about the
matter if the defendant establishes the false allegation by a preponderance of
the evidence. Guenther, supra; Morgan v. State, 54 P .3d 332 (Alaska App .
2002) . Some have required a showing by clear and convincing evidence . State
v. Brum, 923 A.2d 1068 (N.H . 2007) . Some require "a reasonable probability of
falsity ." State v. Barber, 766 P.2d 1288 (Kan . App. 1989) . Some require
"strong and substantial proof of actual falsity." State v. Quinn, 490 S.E .2d 34
(W .Va. 1997) . Others, including our own Court of Appeals, have required that
the prior accusation be shown to be "demonstrably false ." Capshaw v.
Commonwealth, 253 S.W.3d 557 (Ky. App. 2007) (citing Hall v. Commonwealth,
956 S . W.2d 224 (Ky. App . 1997)) ; Blair v. State, 877 N. E .2d 1225 (Ind. App .
2007) ; State v. Casillas, 205 P .3d 830 (N .M . App. 2009); State v. .Maxwell, 18
P.3d 438 (Or. App. 2001) .
In Hall, our Court of Appeals justified a heightened standard of proof by
opining "evidence of this nature is without a doubt extremely prejudicial . Its
admission would undermine the purpose of KRE 412, shifting the focus from
the real issues, and effectively put the victim on trial." Id. at 227. Similarly, at
least one commentator has argued that to further the important purposes of
the rape shield rule, it is fair to require the defendant to establish by clear and
convincing evidence that he is not probing prior sexual behavior but only prior
dishonesty. Bopst, "Rape Shield Laws and Prior False Accusations of Rape : The
Need for Meaningful Legislative Reform," 24 J. Legis . 125 (1998) . We recently
noted the Hall "demonstrably false" standard in Kreps v. Commonwealth, 286
S . W.3d 213 (Ky. 2009), but without considering the propriety of that standard
emphasized that evidence of false prior accusations remains subject to KRE
403's probative value-prejudicial effect balancing test and held that the prior-
accusation evidence in that case was properly excluded under this latter rule.
The Hall panel did not attempt to define "demonstrably false" beyond
saying that prior allegations could not be inquired about unless they were
"proven" or "admitted" to be false. 956 S.W.2d at 227. The Court of Appeals
did not indicate what proof of falsity would suffice, but it did hold in the case
before it that the alleged perpetrators' denials of the allegations and the
decision by the investigating agency (and apparently the victim herself) not to
press charges were by themselves insufficient . Numerous courts have similarly
held that an alleged perpetrator's self-serving denial and a merely inconclusive
investigation are not sufficiently probative of falsity to remove a prior allegation
from the strictures of the rape shield rule . King, supra, 71 ALR 4111 469 .
The standard of proof question is complicated, moreover, by the fact that
evidence of an alleged victim's prior false accusations implicates not just the
evidence rules but also the defendant's right under the Confrontation Clause of
the Sixth Amendment to the United States Constitution to subject the
witnesses against him to meaningful cross-examination . The rules of evidence,
of course, may not be construed so as to usurp that right, and thus, although
the United States Supreme Court has emphasized that state and federal rule
makers have broad latitude "to establish rules excluding evidence from
criminal trials," United States v. Scheffer, 523 U.S . 303, 308 (1998), and that
trial judges enjoy wide latitude "to impose reasonable limits on crossexamination 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," Delaware v. Van Arsdall, 475 U.S . 673,
679 (1986), the Court has also declared that that latitude has limits: "Whether
rooted directly in the Due Process Clause of the Fourteenth Amendment or in
the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the
Constitution guarantees criminal defendants a meaningful opportunity to
present a complete defense . . . . This right is abridged by evidence rules that
infring[e] upon a weighty interest of the accused and are arbitrary or
disproportionate to the purposes they are designed to serve ." Holmes v. South
Carolina, 547 U .S . 319, 324 (2006) (citations and internal quotation marks
omitted) .
"Arbitrary" rules, the Court explained in Holmes, are those "that exclude[]
important defense evidence but that d[o] not serve any legitimate interests ." Id.
at 325. In determining whether an exclusion is "disproportionate," other
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 18, 24 (1st Cir.
2005) (citing Davis v. Alaska, 415 U .S . 308 (1974) and Van Arsdall, supra),
against any prejudicial effects the rule was designed to guard against. Barbe v.
McBride, 521 F .3d 443 (4th Cir. 2008) ; LaJoie v. Thompson, 217 F.3d 663 (9th
Cir. 2000) .
Under this "arbitrary or disproportionate" standard, the Fourth Circuit
Court of Appeals has held that the exclusion of prior allegation evidence where
the only proof of falsity was the alleged perpetrator's denial did not run afoul of
the defendant's constitutional rights . Quinn v. Haynes, 234 F.3d 837 (4th Cir .
2000) . In White v. Coplan, supra, on the other hand, the First Circuit Court of
Appeals held that the exclusion of prior-allegation cross-examination did
violate the federal constitutional rights of a defendant convicted of sexually
assaulting two sisters, ages eight and twelve, where these was evidence of
falsity beyond the alleged perpetrators' denials. Both girls had previously
accused a neighbor of assaulting them and ultimately the neighbor had been
acquitted by a jury. In addition, the older girl had accused a cousin of assault
but had subsequently recanted those allegations, allegations which the police
had investigated and found inconsistent with "background facts". Id. a t 22 .
Finally, the younger sister had made an allegation against a man named "Mac"
who was never identified or located in an ensuing investigation. Evidence of
these allegations was not admitted because although the New Hampshire
Supreme Court found them false to a "reasonable probability" they did not
meet the state's higher "demonstrably false" standard . Although the First
Circuit, on habeas corpus review, made clear that in its view a heightened
standard of proof in these prior-allegation cases is not unconstitutional per se,
it held that a "demonstrably false" standard could be unconstitutional in a
particular application as it was on "the peculiar facts" of that case.4 Id. at 26.
The White Court noted the vital importance of impeachment in a case that
turned almost entirely on the alleged victims' credibility, and opined that the
evidence of prior falsity (at least as to the allegations of which the neighbor was
acquitted and the allegations against the cousin which were recanted and
unsubstantiated by investigation) was substantial enough that crossexamination concerning it "could easily have changed the outcome ." Id . a t 25.
Cf. Delaware v. Van Arsdall, 475 U.S. at 680 (holding that the Confrontation
Clause was violated where the defendant was denied cross examination from
which "[a] reasonable jury might have received a significantly different
impression of [the witness's] credibility. . . .") .
The threejudge panel specifically noted that in Ellsworth v. Warden, 333 F.3d 1, 6
(2003), the First Circuit sitting en banc held that a constitutional challenge to the
demonstrably false standard would be "an uphill struggle", noting "the
confrontation clause objection is pretty well limited to extreme cases where the
state restriction is patently unreasonable ." 399 F.3d at 26.
13
With this constitutional background in mind, we turn again to KRE 412 .
Rape shield rules, the United States Supreme Court has recognized, serve the
legitimate purpose of protecting the victims of sex crimes "against surprise,
harassment, and unnecessary invasions of privacy." Michigan v. Lucas, 500
U .S . 145, 150 (1991) (upholding against constitutional challenge the
application of a 10-day notice provision in Michigan's rape shield law to
preclude the accused from presenting evidence of his prior sexual relationship
with the accuser) . They also enhance the fairness of trials by excluding
irrelevant character evidence highly apt to distract and confuse the jury. We
agree with the Court of Appeals in Hall that to prevent these important
purposes from being undermined or circumvented, evidence, including crossexamination, concerning an alleged sex-crime victim's allegations of sexual
impropriety against another is not admissible at trial unless the proponent of
the evidence establishes at a KRE 104 hearing that the prior accusation was
demonstrably false. To meet that standard, the proponent must show that
there is a distinct and substantial probability that the prior accusation was
false . This heightened standard of proof is meant to exclude the evidence
where the proponent's only proof of falsity is the alleged perpetrator's denial
and/or an inconclusive investigation of the allegation . Self-serving denials and
investigations that do not exonerate but merely fail to substantiate are not
sufficiently probative of falsity to justify breaching the alleged victim's shield.
Applying the shield and excluding the evidence where there is no proof that the
prior allegations were "demonstrably false" is neither arbitrary nor
disproportionate.
This demonstrably false standard should be applied so as to balance the
Commonwealth's and the victim's interest in excluding collateral character
evidence against the defendant's interest in confronting the victim with
evidence genuinely and significantly bearing on his or her credibility . So
applied, the standard the Court adopts today does not create an impassable
barrier for prior-allegation evidence . For example, the victim's recantation of
the prior allegation, an investigation which establishes pertinent facts wholly
inconsistent with the allegation, or circumstances strongly suggesting that the
victim had a motive to fabricate the prior and current allegations are all
instances potentially justifying confrontation on this issue. We reiterate,
however, as we explained in Kreps, supra, that even if the prior allegation is
demonstrably false and thus not barred by KRE 412, the evidence is still
subject to other evidence rules, including KRE 608 and KRE 403, and may be
limited or excluded as those rules require, consistent, of course, with
constitutional restraints .
With respect to KRE 608, we note, finally, that that rule permits a
witness to be cross-examined with specific incidents of conduct, but expressly
precludes the introduction of extrinsic evidence regarding that conduct . Purcell
v. Commonwealth, 149 S .W.3d 382 (Ky. 2004) . Under what rule or rules and
under what circumstances, if any, extrinsic evidence of a prior false accusation
would be admissible are questions we leave for another day .
At the pre-trial admissibility hearing in this case, Dennis sought to
establish the falsity of S .J .'s 2001 accusation by questioning the CHFS
employee who investigated that case and ultimately dismissed it . The
investigator explained that S.J ., only five or six years old at the time, never
clearly articulated exactly what happened after the dog jumped in her lap . She
said only that her father, sister, and her sister's boyfriend had then examined
and touched her groin . The adults all denied the incident and thought that
S.J . was referring to a time when she had wet herself and one or more of them
had helped to wash her. The investigator concluded that a dog probably had
jumped on S .J .'s lap, but that it could not be substantiated that the adult
response, if any, was sexual in nature. The trial court ruled that for the
purposes of KRE 608 and 404(a)(3) this testimony, even in conjunction with
evidence that the six-year-old S .J . had had a lively imagination, did not
amount to proof of falsity. We agree .
The investigator's testimony established no more than that the alleged
perpetrators had denied any wrongdoing and that otherwise the allegations
could not be substantiated. Indeed, the investigator believed that something
probably had happened with the dog and that S.J.'s (or her mother's)
interpretation of how the adults reacted may simply have been mistaken,
although even that much could not be substantiated. Even under a
preponderance of the evidence standard, much less the demonstrably false
standard we announce today, this evidence is not sufficient to show that the
2001 incident amounted to a false accusation . On the record currently before
us, therefore, the trial court did not abuse its discretion by disallowing crossexamination with respect to that incident .
As explained more fully infra, however, the record in this case must be
supplemented . On remand, Dennis is entitled to production of CHFS's records
regarding the 2001 incident, if there are any, and to have the ,trial court inspect
them. If, notwithstanding the investigator's testimony, those records establish
demonstrable falsity, if the evidence is "probative of truthfulness or
untruthfulness" pursuant to KRE 608(b), and if that evidence survives the KRE
403 balancing test, then Dennis must be granted a new trial at which he will
be allowed to cross-examine S .J. about the 2001 false report. A retrial would
be required in that event because the evidence against Dennis was not so
overwhelming that impeachment of S .J . with a duly established false prior
accusation would not, within a reasonable probability, have altered the
outcome. Pennsylvania v. Ritchie, 480 U .S . 39 (1987) .
Finally, Dennis contends that even if he is not entitled under the
Kentucky Rules of Evidence to impeach S .J . with the purportedly false 2001
accusation, he is entitled to do so under the Sixth Amendment's Confrontation
Clause. This argument was not presented to the trial court and in any event in
light of the foregoing discussion regarding the balancing of a defendant's Sixth
Amendment rights and the legitimate state interests advanced by our
evidentiary rules it is patently without merit. Dennis sought to make a general
attack on S .J.'s credibility by showing that she had fabricated a dissimilar
abuse accusation in the past. He was unable, however, to establish the falsity
of the prior accusation by even a preponderance of the evidence . No court has
held that the Constitution requires the admission of purported general
credibility evidence for which there is no factual predicate. Simply put,
invocation of the United States Constitution does not save Dennis from his
failure to prove the falsity of S.J.'s 2001 report .
II. The Trial Court Erred By Failing To Obtain And Review Potentially
Material CHFS Records.
When Dennis learned of the 2001 incident in which S .J . raised concerns
that she had been inappropriately touched, he made a pretrial motion to
inspect CHFS records pertaining to that incident. Because CHFS is an agent of
the Commonwealth, in a criminal case its records are subject to discovery
under RCr 7 .24 . Anderson v. Commonwealth, 864 S.W .2d 909 (Ky. 1993) .
Because the Cabinet's records are otherwise confidential, however, under KRS
194A .060, the parties agreed that the records would initially be disclosed to the
trial court for an in camera inspection . The court would then turn exculpatory
or otherwise discoverable materials over to the defense and would place the
remainder of the Cabinet's records under seal. This is a procedure deemed
constitutionally adequate in Pennsylvania v. Ritchie, supra, and Commonwealth
v. Barroso, 122 S .W .3d 554 (Ky. 2003), and was the procedure employed under
RCr 7 .24 in Anderson, supra.
Accordingly, the trial court ordered CHFS to "produce all records
concerning the minor child, [S.J.], and deliver same" to the trial court . The
order was meant to reach all records concerning S.J ., including those from the
2001 investigation, but as the record forwarded to this Court under seal
discloses, CHFS produced only those records from the then-pending 2006
investigation of Dennis. It may be, of course, that records from 2001 no longer
existed and that the 2006 records were indeed all of the records CHFS had
concerning S .J . Because Dennis was particularly interested in the 2001
records regarding S .J .'s earlier allegations of abuse, however, he was entitled to
know whether such records existed and if they did to have the trial court
inspect them . When CHFS's response to the trial court's discovery order
included nothing from 2001, the trial court should have supplemented its order
with a specific request for the 2001 materials . Instead, the trial court
apparently overlooked the absence of those materials and determined merely
that the 2006 records included nothing bearing on the 2001 allegation and
were in no other way exculpatory. Although our own examination of the 2006
materials convinces us that the trial court did not abuse its discretion by
deeming them non-discoverable, we agree with Dennis that the trial court erred
when it failed to pursue the 2001 records. Accordingly, we must vacate
Dennis's judgment and remand this matter for an inspection of the 2001
records, if they exist, and for a new trial if those records contain evidentiary
material such that "there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been
different." Pennsylvania v. Ritchie, 480 U.S . at 57.
CONCLUSION
In sum, KRE 608 permits the cross-examination of a sex crime victim
concerning a prior false accusation if the prior accusation is shown to be
demonstrably false, if the accusation is "probative of truthfulness or
untruthfulness," and if the prior accusation evidence otherwise survives KRE
403's probative value balancing test. In this case, Dennis's proof of falsity did
not satisfy the demonstrably false standard and thus the trial court properly
disallowed cross-examination concerning the prior accusation . Dennis was
entitled, however, to have the trial court inspect CHFS records pertaining to the
prior accusation and to release to him records bearing materially on the falsity
issue. Because that inspection did not take place, we must remand the matter
to the trial court so that it may obtain those records, if they exist, and then
determine if they contain evidence (or could lead to evidence) sufficiently
probative of falsity to satisfy Dennis's burden and if so to grant Dennis a new
trial. If there are no additional records regarding the 2001 incident or if they
do not contain sufficiently probative evidence of falsity, then the judgment
against Dennis shall be reinstated . Accordingly, we vacate the January 4,
2008 Judgment of the Daviess Circuit Court and remand for proceedings
consistent with this Opinion .
All sitting . All concur.
COUNSEL FOR APPELLANT:
Erin Hoffman Yang
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General of Kentuc
Kenneth Wayne Riggs
Assistant Attorney General
Office of the Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601
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