CHRISTINA ST. CLAIR V. COMMONWEALTH OF KENTUCKY
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IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE ; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY l, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
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DOCUMENT TO THE COURT AND ALL PARTIES TO THE
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RENDERED : NOVEMBER 18., 2010
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CHRISTINA ST. CLAIR
V.
APPELLANT
ON APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE ROBERT B. CONLEY, JUDGE
NO . 08-CR-00185
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Christina St. Clair appeals as a matter of right from an August 19, 2009
Judgment of the Greenup Circuit Court convicting her of two counts of firstdegree Sodomy, in violation of Kentucky Revised Statute (KRS) 510 .070, three
counts of complicity to first-degree sodomy, in violation of KRS 510 .070 and
KRS 502.020, and two counts of complicity to first-degree sexual abuse, in
violation of KRS 510.110 and KRS 502 .020 . In accord with the jury's
recommendation, the trial court sentenced St. Clair to concurrent terms of
imprisonment, resulting in a twenty-year sentence . The Commonwealth
alleged, and the jury found, that during 2005 and 2006, St. Clair compelled
her two daughters, C.S . and S .S ., then ages six to seven and five to six,
respectively, to perform oral sex on her and on one of her boyfriends. In the
younger daughter's case, St. Clair also compelled her to perform oral sex on a
second boyfriend and to submit to sexual contact by both men . The sole
ground of St. Clair's appeal is that her trial was rendered unfair when the
Commonwealth asked her whether she believed that her daughters, both of
whom testified at trial, were lying. Because the Commonwealth's question was
not timely objected to and did not render the trial fundamentally unfair, we
affirm .
RELEVANT FACTS
The Commonwealth's proof, principally the testimony of the two girls,
tended to show that on numerous occasions during the time period alleged, St.
Clair compelled her daughters to engage in oral sex by threatening to whip and
to ground them if they refused. S .S. testified that during some of the episodes
when she was thus compelled to sodomize St. Clair's boyfriends, they also
touched her vaginal area and her chest. The girls also testified that one of the
boyfriends was abusive toward their mother and was mean to them . In
January 2007, his abusiveness resulted in the girls' being removed from St.
Clair's custody and placed first in foster care and then in the custody of their
paternal grandmother and her husband.
S.S. testified that during one of her mother's visits after the girls had
joined their grandmother's household, St. Clair told them that she hoped to
regain custody. Because she did not want to be returned to the former
"situation," S .S . then told her grandmother's husband about the sexual
activity . C.S . confirmed S .S .'s allegations, and the matter was referred first to
social workers and then to the police.
A Greenup County grand jury indicted St. Clair in August 2008 . She
was tried in May 2009 . St. Clair testified in her defense, denied the allegations
in their entirety, and asserted that the paternal grandmother and her husband
had induced the girls to bring false charges so as to thwart her chances of
regaining custody. As noted, the jury rejected this defense. On appeal, St.
Clair maintains that the prosecutor's improper cross-examination of her
deprived her of a fair trial .
ANALYSIS
During her brief direct examination, St. Clair testified that she loved her
daughters and that she had not forced them to engage in sexual activity either
with her or with others . Early in his cross-examination, the prosecutor then
questioned her as follows:
Commonwealth : You're telling us, I guess, that your
children, both your girls, just came
in here and lied?
St. Clair:
Yes sir, I am .
Commonwealth : And that you never allowed them to
be, um, allowed them sexual contact
with either of these men?
St. Clair:
Yes sir, that's what I'm telling you .
That yes, they came in here and lied,
and no I did not allow that.
Commonwealth : Those girls love you; they said they
did.
St . Clair :
And I love them.
Commonwealth : And, um, you're the only mother
they've ever known, correct?
St. Clair:
Yes.
Commonwealth : Buford [the abusive boyfriend] is
gone, isn't he? How long have you
been rid of Buford?
St. Clair:
Yes; two years approximately.
Commonwealth : So no reason to be afraid of Buford
now, is there?
St . Clair :
No .
Commonwealth : The children are in the permanent
custody, are they not, of the
grandparents?
St. Clair:
Yes .
Commonwealth : And have been for a year and a half
or more, correct?
St. Clair:
Yes.
Commonwealth : So there's no reason for the children
to come down here and lie on you.
There's no custody case left.
.
" Only at this point, a minute and a half and several questions after St . Clair was
first asked whether she believed her daughters had lied, did defense counsel
0
object on the ground that by asking St. Clair to provide a reason for .the girls'
alleged dishonesty the prosecutor was asking her to speculate about facts she
could not know. The trial court admonished the prosecutor not to invite the
witness to speculate . Instead of simply asking whether St. Clair knew of any
reason the children might have for lying, the prosecutor again asked, "Isn't it
correct that the children have no reason to lie on you?" When defense counsel
made the same objection, the prosecutor tried again: "Why would the children
say these awful things about you?" The same objection was this time
overruled, and St. Clair answered that the grandparents had induced the girls'
allegations and their testimony. Several minutes later, at the end of his crossexamination, the prosecutor once again asked, "Tell me why the children would
tell these lies?" Defense counsel again objected, this time noting that it is
improper to ask a witness to comment on another witness's credibility, and
also noting that the question had been asked and answered . The objection was
overruled, however, and St . Clair repeated that the children lied at the
grandparents' behest .
As St. Clair correctly notes, .in Moss v. Commonwealth, 949 S. W.2d 579
(Ky. 1997), we observed that
[a] witness should not be required to characterize the
testimony of another witness, particularly a wellrespected police officer, as lying. Such a
characterization places the witness in such an
unflattering light as to potentially undermine his entire
testimony. Counsel should be sufficiently articulate to
show the jury where the testimony of the witnesses
differ without resort to blunt force . Our decision in
Howard v. Commonwealth, 227 Ky. 142, 12 S.W .2d
324 (1928), has long been the standard for proper
cross-examination . The Supreme Court of Rhode
Island recently commented appropriately on tactics
such as the prosecutor employed here, as follows :
With few exceptions, it is improper to require a witness
to comment on the credibility of another witness. A
witness's opinion about the truth of the testimony of
another witness is not permitted . Neither expert nor
lay witnesses may testify that another witness or a
defendant is lying or faking. That determination is
within the exclusive province of the jury. State v.
James, 557 A.2d 471, 473 (R.I . 1989) .
949 S .W.2d at 583 . In Moss, a burglary case, the defendant was asked if one of
the testifying police officers had lied. In State v. James, however, the Rhode
Island case we cited with approval, the defendant was charged with having
sexually assaulted his daughters, and his defense, like St. Clair's defense in
this case, was that the allegations were false . The court held that it was
improper for the prosecutor to ask, several times and over repeated objection,
whether he considered his daughters truthful . Not only did those questions
violate the fundamental rule that one witness is not to comment on the
credibility of another, but, as the Court noted, those questions were also
argumentative . They were asked not so much to elicit information, since the
answer was obvious, but were meant rather to cast the father in the
unflattering light of one willing to impugn his own daughters. As we observed
in Moss, that use of cross-examination not to question, but to insinuate the
defendant-witness's bad character, is improper. Had St. Clair objected to the
prosecutor's initial question in this case asking her to characterize the girls'
testimonies as lies, it may well be that the court should have foreclosed that
line of inquiry .
As noted, however, there was no objection to that initial question, and
instead St. Clair readily volunteered her opinion that the girls had lied . Where
a Moss violation has not been objected to, relief is appropriate only if the
question rendered the trial fundamentally unfair. Moss, supra; Caudill v.
Commonwealth, 120 S .W.3d 635 (Ky. 2003) ; Tamme v. Commonwealth, 973
S .W .2d 13 (Ky. 1998) . Since St . Clair's defense was precisely that her
daughters had testified to what they knew were fabricated allegations, we
cannot say that her being asked to state that defense in bald terms amounted
to a fundamental unfairness or that it was at all likely to have affected the
outcome of the trial . Once St. Clair volunteered her opinion that the girls had
lied, moreover, it was not improper for the prosecutor to ask her for the basis of
that opinion. The trial court did not err, therefore, by permitting the
prosecutor to elicit St. Clair's testimony that the grandparents had instigated
the allegations against her . St. Clair's objection to the prosecutor's final
question-"Tell me why these children would tell these lies?"-arguably should
have been sustained either on the basis of Moss or on the ground that the
question had been asked and answered, but even if the trial court erred, at
that point the error was clearly harmless . .
CONCLUSION
In sum, although we reiterate that it is generally improper for one
witness to be asked to characterize or to comment upon the credibility of
another's testimony, in this case any impropriety was allowed to pass without
objection and was not such as to render the trial fundamentally unfair .
Accordingly, we affirm the August 19, 2009 Judgment of the Greenup Circuit
Court .
All sitting. All concur.
COUNSEL FOR APPELLANT:
Joseph Brandon Pigg
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE :
Jack Conway
Attorney General
Joshua D. Farley
Assistant Attorney General
Attorney General's Office
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort, KY 40601-8204
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