Alford v. Commonwealth of Kentucky
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Appellant appealed from his convictions of first-degree sodomy and first-degree sexual abuse for which he received a total sentence of life imprisonment. Appellant raised numerous assignments of error, most of which were not preserved by trial counsel, for which appellant requested palpable error review under RCr 10.26. The court held that the admission of an egregious amount of inadmissible hearsay required appellant's convictions to be reversed and remanded for a new trial.
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RENDERED : MAY 19, 2011
TO BE PUBLISHED
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2009-SC-000141-MR
WILLIAM ALFORD
V.
APPELLANT
ON APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE JANET P. COLEMAN, JUDGE
NO. 01-CR-00159
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT
REVERSING AND REMANDING
William Alford appeals from his convictions of first-degree sodomy and
first-degree sexual abuse, for which he received a total sentence of life
imprisonment . He appeals to this Court as a matter of right.' The extensive
use of inadmissible hearsay requires we reverse and remand for a new trial.
' Ky. Const . § 110(2)(b) . Appellant's Judgment and Order Imposing Sentence was
entered on March 14, 2003, and no notice of appeal was ever filed. On March 9,
2009, Appellant filed a Motion to File Belated Appeal with this Court. This Court
then remanded the case to the Hardin Circuit Court for a hearing and
determination as to whether Appellant could be properly charged with his counsel's
ineffectiveness in failing to file a notice of appeal. See Commonwealth v. Wine, 694
S .W .2d 689 (Ky. 1985), overruled on other grounds by Hollon v. Commonwealth, 334
S .W .3d 431 (Ky. 2010) . On remand, the circuit court found that Appellant's trial
counsel had failed to file a notice of appeal and had never discussed the possibility
of an appeal with Appellant, that Appellant was never advised of his right to appeal
by the trial judge, and that Appellant should not be held responsible for his
counsel's ineffective assistance . This Court then granted Appellant's motion, and
permitted his belated appeal to proceed .
This case arose pursuant to an allegation by S .A ., then age thirteen, that
Appellant, her mother's boyfriend, had sexually abused her for a number of
years . Appellant, who is not S.A.'s biological father, began living with S.A .'s
mother Billie Jo White and her children (S .A . and her younger brother W.A.)
when S .A . was three years old. The family (Appellant, White, S .A., and W.A.)
moved to Hardin County, Kentucky, in 1993 when S.A. was five years old .
Appellant and White subsequently had two children together. After moving to
Hardin County, the family first lived in a two-bedroom trailer, and, in 1998,
moved to a three-bedroom trailer. S .A. and W.A. shared the same biological
father, with whom they had visitation .
On January 28, 2001, during a visitation with her biological father in
Louisville, S.A., who had just turned thirteen, told her stepsister and
stepmother that Appellant had been sexually abusing her. S .A.'s biological
father took her to Kosair Hospital that evening, where a physical examination
was performed. This examination did not reveal any evidence of sexual or
physical abuse. Later that evening, S .A. was interviewed by Detective Bruce
Slack of the Kentucky State Police, in which interview she alleged that
Appellant had sexually and physically abused her. W .A. was interviewed as
well. Thereafter, S.A. began living with her biological father, and did not return
to her mother's home. Two months later, on March 29, 2001, S.A. was
interviewed and examined at the Barren River Area Child Advocacy Center by
Dr. Patrick Hayden. Dr. Hayden's examination revealed physical evidence of
sexual contact. On March 30, 2001, an indictment was returned charging
Appellant with one count of first-degree rape and one count of first-degree
sodomy, alleged to have occurred from 1993 through January 25, 2001 .
A jury trial commenced on October 23, 2002 . At the time of trial, S .A.
was fourteen years old and living with her biological father. S .A . testified that
Appellant began touching her private parts when she was three or four years
old . S .A. testified that Appellant began forcing her to perform oral sex on him
when she was in about second grade.2 S .A. recalled being six or seven years
old when Appellant first began putting his penis in her vagina. She recalled
being in third grade when he first began putting his penis in her anus . S.A.
estimated that Appellant had raped her "three to four hundred times, it felt
like ." S .A. testified that Appellant made her perform oral sex "a couple
hundred times ."
S.A . indicated the incidents usually took place in the bedrooms or
bathroom of the trailer . At times she would testify as to what Appellant would
generally do, and also described approximately fifteen specific incidents of oral,
anal, or vaginal intercourse . S .A. testified that sometimes her mother was
home when the abuse took place and sometimes she was not. S.A. testified
that she did not tell her mother, or anyone, about what Appellant was doing to
her because she was afraid that Appellant would hurt her (S.A.) or her family.
S.A. described Appellant as a "violent man," and testified that he had hit,
kicked, slapped, and choked her, including once causing her to black out; that
2 On cross-examination, S.A. recalled being about five years old at the time .
he had hit W.A. and had once choked her younger sister, L.A., when L.A . was
two years old ; and that he had hit and thrown things at White and once held a
gun to her head . S.A. testified that Appellant drank alcohol and smoked
marijuana. She testified that he made her and W.A. drink wine coolers, and
that Appellant hit her when she got sick and could not finish her wine cooler .
She testified that Appellant once forced her to smoke marijuana, which made
her sick.
S .A. testified that she was raped for the last time on January 25, 2001 .
She testified that this occurred in Appellant's bedroom in the trailer while her
mother was at the store . On January 28, 2001, while visiting her biological
father in Louisville, she told her stepsister and her stepmother that Appellant
had been abusing her. After this date S .A. began living with her biological
father, and did not return to her mother's home.
S.A. testified that she had
always wanted to live with her biological father, but denied having made up the
allegations in order to be able to do so.
S.A.'s mother, Billie Jo White, testified that despite living in a small
trailer with thin walls, she never saw, nor heard, anything that indicated S.A.
was being sexually assaulted or physically abused . White acknowledged,
however, that there were times when she was not at home, because she was at
work or elsewhere, and therefore could not say what may or may not have
happened when she was not there. White denied that Appellant had been
physically abusive to her (White) .
W.A. (S.A.'s brother), who was thirteen years old at the time of trial,
testified that he never saw Appellant engage in anything improper with S.A.
When confronted with a statement he had made to police when he was
interviewed in January, 2001, regarding S .A.'s allegations - that he once
walked in the bedroom and saw S .A . on her hands and knees and saw
Appellant sitting on the edge of the bed - W .A . testified that he hadn't really
seen this . W .A . testified that he been told to say that story by their (his and
S .A.'s) biological father . W.A. testified that the allegations were the result of a
plan by their biological father so that S.A. could come and live with him . When
confronted with another statement he had made in the interview - that there
were times when he had seen Appellant and S .A. in the bathroom together W.A. testified that their father had told him to say that too and that he had
never really seen this either. W .A . further testified that their father had
pornographic movies and adult sex toys in his home .
Dr . Hayden testified as to his interview and examination of S.A. Dr.
Hayden testified that his physical findings were consistent with sexual
penetration of S.A.'s vagina. He did not find evidence of anal penetration .
Detective Slack testified as to the contents of his interview with S.A.
Appellant did not take the stand. The jury was instructed on one count
of first-degree rape and one count of first-degree sodomy, with first-degree
sexual abuse as a lesser included offense of both charges . The jury found
Appellant guilty of first-degree sodomy and first-degree sexual abuse (as a
lesser included offense of first-degree rape) . Appellant was ultimately
sentenced to life imprisonment for the first-degree sodomy conviction and five
years for the first-degree sexual abuse conviction, for a total of life
imprisonment .
Appellant raises a number of assignments of error, most of which were
not preserved by trial counsel, for which Appellant requests palpable error
review under RCr 10 .26 .3 We conclude that the admission of an egregious
amount of inadmissible hearsay requires the convictions be reversed and the
case remanded for a new trial . We shall first address this error, and then
address Appellant's remaining arguments likely to recur on retrial.
Inadmissible Hearsay/ Bolstering
Appellant contends that the repeated use of inadmissible hearsay,
through the testimony of Detective Slack and Dr. Hayden, constitutes palpable
error requiring reversal . Appellant concedes that these assignments of error
are unpreserved, as trial counsel failed to object, and requests review per RCr
10.26 .
Detective Bruce Slack of the Kentucky State Police was called as the last
Commonwealth's witness . Slack testified that he took a taped statement from
S .A. on January 28, 2001 . The prosecutor asked, "Was her testimony [at trial]
consistent with the statement that she gave to you?" Detective Slack
responded that it was. On re-direct, the prosecutor asked specifically about
Detective Slack's interview with S.A., including the following:
3 Appellant retained new counsel for the purpose of filing this appeal.
4
Did you ask her the question, did the defendant ever
use condoms? Do you recall if she responded, no, he
never did?
A:
Yes, sir.
Q:
Do you recall her making the statement that "he told
me I will kill you and he said to my mom, if you ever
leave me, I will kill you"? And then [S.A.] saying that
the defendant said that to her and her mother Billie Jo
White?
A:
Yes, sir.
Q:
[S .A.] said that she had her last sexual contact that
Thursday night, is that correct, sir?
A:
Yes, sir.
Q:
Do you recall that she said he forces her, speaking in
relation to her mother, he forces her to do things? "He
gets drunk, he makes mom do things he makes me
do ." And then she said, "have sex with me ." Is that
correct?
A:
Yes, sir.
Q:
Do you recall, related to alcohol, [S .A .] said that "he
tricked me into drinking gin and orange juice"?
A:
Yes, sir.
Do you recall [S.A.] said that "he tells me I'm really
good at it"?
A:
Yes, sir.
Q:
Do you recall . . . the question was asked, "How many
times did you have intercourse?" And she said, "More
than I can count ." And then you in fact were the one
that prodded her to assign a number to this. Is that
correct?
A:
That's correct, sir.
You prodded her with 200, and then you said 300 or
400, and finally she adopted the 300 to 400 . Is that
an accurate assessment, sir?
A:
Q:
The question was asked, related to oral sex, and she
responded, "He makes me do it every day of the week ."
Then, the question was asked, "How often was that?"
And she said, "Four days a week." Is that correct?
A:
That's correct.
Q:
Did she tell you that she felt safer with her natural
father, sir?
A:
Yes, sir.
Q:
Then again she was asked questions related to her
little brother, and the questions were asked, "What
does he do physically to [W.A.]?" She said, to both of
us, he hits us, he chokes us, he kicks us . . . . when
he has no beer or weed . . . and when he does have
beer and weed? Do you recall her saying that?
A:
Yes, sir.
Q:
Do you recall that she told you that at 9 years of age,
her mother found blood in her panties, and her mother
"asked me about it, and I told her, I don't know
anything about it." Do you recall that statement?
A:
Yes, sir. While her mother was doing the laundry
Q:
4
Yes, sir.
Did she ever say anything to you about why she would
make this up and lie?
. . . .4
At trial, White was asked (apparently in light of this claim by S.A.) if she ever found
blood on S .A.'s clothing in the laundry. She testified that she did not.
A:
No, sir. She did not. She was very much afraid,
scared, of what the outcome was going to be . . . .
We agree with Appellant that the admission of this testimony was error .
There is no hearsay exception for statements made by an alleged victim of
sexual abuse to a police detective . Smith v. Commonwealth, 920 S .W.2d 514,
516-17 (Ky . 1995) (The rationale behind prohibiting hearsay testimony in
situations involving social workers is applicable to the case of a police detective
relating prior statements by an alleged victim.) . See also Bussey v.
Commonwealth, 797 S .W.2d 483, 484-85 (Ky. 1990) ; Belt v. Commonwealth, 2
S .W .3d 790, 792 (Ky. App. 1999) .
On appeal, the Commonwealth does not attempt to justify the admission
of this testimony under any hearsay exception, 5 but simply urges this court to
hold any error in its admission harmless. Because the error is unpreserved,
our review is limited to one for palpable error . RCr 10 .26. "In order to
demonstrate an error rises to the level of a palpable error, the party claiming
palpable error must show a `probability of a different result or [an] error so
fundamental as to threaten a defendant's entitlement to due process of law.'"
Allen v. Commonwealth, 286 S .W.3d 221, 226 (Ky. 2009) (quoting Martin v.
Commonwealth, 207 S .W.3d 1, 3 (Ky. 2006)) .
5 The statements do not meet the criteria for admissibility under KRE 801A(a)(2) (prior
consistent statements) under the facts of this case, cf. Noel v. Commonwealth, 76
S .W .3d 923, 927-29 (Ky. 2002), and the Commonwealth does not attempt to argue
such .
This Court has consistently recognized that this type of hearsay
testimony is highly prejudicial, and unfairly bolsters the credibility of the
alleged victim. See Smith, 920 S .W.2d at 516-17 (reversible error where police
detective permitted to testify about statements made to him by alleged victim of
sexual abuse) ; Bussey, 797 S .W.2d at 484-85 (reversible error where four law
enforcement officials were permitted to repeat what alleged sexual abuse victim
told them); Belt, 2 S .W .3d at 792 (reversible error where police detective read
narrative from uniform citation containing alleged sexual assault victim's
allegations) .
S.A.'s in-court and out-of-court statements were the only evidence
linking Appellant to the evidence of sexual contact. Hence, S .A.'s credibility
was crucial to the Commonwealth's case. The extensive hearsay by Detective
Slack was highly prejudicial and served only to unfairly bolster S.A.'s
credibility . In light of the above, we conclude the admission of this testimony,
particularly when combined with the inadmissible hearsay repeated by Dr.
Hayden (as will be discussed forthcoming), rises to the level of palpable error .
Allen, 286 S.W .3d at 226 .
Dr. Patrick Hayden interviewed and examined S .A. at the Barren River
Area Child Advocacy Center on March 29, 2001, two months after the
allegations were reported. At trial, Dr. Hayden read extensively from his
interview with S .A ., and, in doing so, identified Appellant as the perpetrator
and basically repeated the allegations to which S .A. had already testified . In
this regard, Dr. Hayden testified, without objection, that S .A. told him that, on
the evening of January 28, 2001, she had reported to her stepmother that she
had been repeatedly raped over a number of years by "her mother's boyfriend."
Dr. Hayden then testified at length as to various acts of oral, vaginal, and anal
intercourse, and sexual touching, which S.A . had related to him. Dr. Hayden
testified that S .A. told him that the sexual abuse continued over the years until
she got to the point of where she was tired of him (Appellant) touching her and
forcing her to have sex, until one weekend when she was visiting her father she
got up the nerve to tell her stepsister who told her to tell her stepmother. Dr.
Hayden further testified that S .A. told him that Appellant would beat, kick, hit,
and slap her, and that she saw him hit and punch her stepbrother and
stepsister 6 who lived with her.
As to his physical findings, Dr. Hayden testified that he found notching
of S .A.'s hymen and scarring which indicated vaginal penetration . He did not
find any physical signs of anal penetration . Dr. Hayden was asked on both
direct and cross-examination to read from a report from Kosair Hospital, where
S .A. was examined on January 28, 2001, the day she reported the allegations .
The Kosair report stated that no evidence of vaginal or anal tearing or other
evidence of trauma was found. As to the discrepancy between his findings and
those from Kosair, Dr. Hayden testified that while he performed an extensive
6 The doctor appeared to be referring to S .A.'s half (rather than "step") brother and
sister .
examination, he could not tell from the report what type of exam was
performed at Kosair . 7
On appeal, Appellant contends that much of the testimony by Dr.
Hayden as to his interview with S .A. was inadmissible under KRE 803(4) and
constitutes palpable error. We agree. First, Dr. Hayden's repetition of S .A.'s
identification of Appellant as the perpetrator was error .$ It is well settled that
the identity of the perpetrator is rarely, if ever, pertinent to medical diagnosis
or treatment . Garrett v. Commonwealth, 48 S.W. 3d 6, 11-12 (Ky. 2001) . This
principle was recently reaffirmed by this Court in Colvard v. Commonwealth,
309 S.W .3d 239 (Ky. 2010) . This case falls squarely under the general rule .
Additionally, while S.A.'s statements to Dr. Hayden describing what was done
to her physically are admissible under KRE 803(4), her statements regarding
whom she told, and why, are not pertinent to medical diagnosis and treatment,
and do not qualify for admission under this exception .9
Appellant concedes that this error was unpreserved, as trial counsel
offered no objections, and requests this court review for palpable error per RCr
10 .26 . Dr. Hayden's testimony not only named Appellant as the perpetrator,
but went on to basically repeat the allegations to which S.A. had already
testified, including statements that had no relevance to medical diagnosis and
7 No medical personnel from Kosair testified at trial .
8 There was no doubt that the term "her mother's boyfriend" was referring to
Appellant, based on the trial testimony of others .
9 For purposes of retrial, we note that S .A.'s statements to Dr. Hayden that she saw
Appellant hit and punch her siblings are not relevant to diagnosis or treatment of
S.A. and hence, do not qualify for admission under KRE 803(4) .
treatment (identity notwithstanding) . The extremely prejudicial nature of this
type of hearsay, when repeated by a professional, is well recognized . Sharp v.
Commonwealth, 849 S .W.2d 542, 545 (Ky. 1993) . See also Colvard, 309
S .W.3d at 247 (recognizing extreme prejudice and reversible error due to
physician's testimony repeating hearsay of alleged victim of sexual abuse
identifying defendant as alleged perpetrator) . In the present case, the
extensive, inadmissible hearsay testimony by Dr. Hayden was highly
prejudicial and unfairly bolstered the credibility of S.A.
As previously discussed, S .A.'s credibility was crucial to the
Commonwealth's case . We conclude that the cumulative, if not individual,
error in the admission of the extensive and highly prejudicial hearsay by Dr.
Hayden and Detective Slack unfairly bolstered the credibility of S .A. to the
extent as to rise to the level of palpable error . RCr 10 .26. Accordingly, the
case must be reversed and remanded for retrial.
Sufficiency of the Indictment and Instructional Error
Appellant makes two closely related claims of error, which we will
address together : that the indictment was insufficient under the Due Process
Clause, and that error in the jury instructions deprived him of his due process
rights and violated principles of double jeopardy. 10 The sufficiency of an
to The indictment states :
The Grand Jurors of the County of Hardin, the name and by the authority of
the Commonwealth of Kentucky, charge:
COUNT 1 : That from 1993, when the victim was five (5) years of age, through
the 25th day of January, 2001, in Hardin County, Kentucky, the above named
indictment is measured by two criteria under the Due Process Clause : first, it
must "sufficiently apprise a defendant of the criminal conduct for which he is
called to answer ;" second, the indictment and instructions together must
provide adequate specificity so as to allow the defendant to "plead acquittal or
conviction as a defense" against future indictment and punishment for the
same offense. Schrimsher v. Commonwealth, 190 S.W.3d 318, 325 (Ky. 2006)
(citing Russell v. United States, 369 U.S . 749, 763-64 (1962) ; Valentine v.
Konteh, 395 F.3d 626, 634-35 (6th Cir. 2005)) . See also RCr 6.10(2) (stating
that an indictment "shall be sufficient if it contains, a plain, concise and
definite statement of the essential facts constituting the specific offense with
which the defendant is charged") .
Appellant argues that the indictment was insufficient because it failed to
adequately inform him of the specific crimes for which he was charged .
However, when there is evidence of a pattern of abuse, the Commonwealth is
permitted to charge the defendant with a single, general count of each offense,
as was done here . See Applegate v. Commonwealth, 299 S .W .3d 266, 270-71
(Ky. 2009) (holding sufficient an indictment that charged the defendant with a
single, general count of each of the offenses of first-degree rape and first-degree
sodomy, where the testimony indicated multiple occasions of sexual abuse, and
Defendant committed the offense of First-Degree Rape when he engaged in sexual
intercourse with "S.M .A.", by forcible compulsion.
COUNT 2 : That from 1993, when the victim was five (5) years of age, through
the 25th day of January, 2001, in Hardin County, Kentucky, the above named
Defendant committed the offense of First-Degree Sodomy, when he engaged in
deviate sexual intercourse with "S .M.A.", by forcible compulsion.
Against the peace and dignity of the Commonwealth of Kentucky.
noting that a second prosecution for the same conduct would be barred by
principles of double jeopardy) . The indictment was therefore sufficient on its
face.
Appellant further argues that the sexual abuse instructions under Count
1 and Count 2 violated due process and double jeopardy, as they were identical
and did not differentiate what physical conduct of Appellant constituted the
two separate counts of sexual abuse ." Appellant was charged with first-degree
sexual abuse as a lesser included offense of both first-degree rape and firstdegree sodomy . As to Count 1, the jury acquitted Appellant of first-degree
rape, but convicted him of the lesser included offense of first-degree sexual
abuse . As to Count 2, the jury convicted Appellant of first-degree sodomy .
While the jury instructions for the primary charges stated entirely separate
offenses, the instructions for the two lesser included offenses were identical . 12
It is well settled that where there are multiple counts of the same offense,
"a trial court is obliged to include some sort of identifying characteristic in each
instruction that will require the jury to determine whether it is satisfied from
11
12
Appellant concedes this alleged error was unpreserved and requests palpable error
review per RCr 10 .26 .
The jury instructions for both lesser included counts of first-degree sexual abuse
stated :
If you do not find the Defendant guilty under [instruction number], you will find
the Defendant guilty of First-Degree Sexual Abuse under this Instruction if, and
only if, you believe from the evidence beyond a reasonable doubt all of the following:
A.
That in this county from 1993 through January 25, 2001, and before the
finding of the Indictment herein, he subjected [S.A.] to sexual contact ;
AND
B.
That at the time of such contact, [S.A.] was less than 12 years of age .
the evidence the existence of facts proving that each of the separately charged
offenses occurred ." Harp v. Commonwealth, 266 S .W.3d 813, 818 (Ky. 2008) .
In the present case, however, the sexual abuse instructions did not violate
Harp because the jury was clearly directed to two different types of conduct .
Count 1 of the jury instructions gave the jury two choices - rape, 13 or sexual
abuse as a lesser included offense of rape . Count 2 of the instructions again
gave the jury two choices - sodomy, 14 or sexual abuse as a lesser included
offense of sodomy. Looking at the instructions in toto, not in isolation, there
was no Harp issue, and hence, no error, because of the deliberate way the
instructions were structured .
KRE 404(b) Evidence
Appellant assigns as error, 15 in violation of KRE 404(b), testimony that
Appellant had threatened and beaten S.A.'s mother and placed a gun to her
head; that Appellant had threatened or beaten S .A., and beaten her brother
W .A. ; that Appellant used alcohol and marijuana; that Appellant had given
alcoholic beverages and/or marijuana to S.A. and W .A. ; and that Appellant had
once used excessive discipline on one of the younger children.
The rape instruction under Count 1 required a finding that Appellant engaged in
"sexual intercourse" with S .A. "Sexual intercourse" was defined per the
instructions as "sexual intercourse in its ordinary sense."
14 The sodomy instruction under Count 2
required a finding that Appellant engaged in
"deviate sexual intercourse" with S .A. "Deviate sexual intercourse" was defined per
the instructions as "any act of sexual gratification involving the sex organs of one
person and the mouth or anus of another ."
1s Appellant concedes
said error is unpreserved, as defense counsel made no
objections to any of the complained of testimony. Appellant requests review under
RCr 10.26.
13
Appellant contends that the aforementioned evidence was inadmissible
under KRE 404(b), as it was not probative as to whether the rape and sodomy
charges occurred and served only to poison the sentiment of the jury against
him . Evidence of other crimes or bad acts is generally not admissible to prove
a person committed the crime charged . KRE 404(b) . "[E]vioence of criminal
conduct other than that being tried is admissible only if probative of an issue
independent of character or criminal predisposition, and only if its probative
value on that issue outweighs the unfair prejudice with respect to character ."
Billings v. Commonwealth, 843 S .W.2d 890, 892 (Ky. 1992) . KRE 404(b) is
exclusionary in nature, and must be applied cautiously. Bell v.
Commonwealth, 875 S .W.2d 882, 889 (Ky. 1994) .
We believe the evidence regarding threats and violence by Appellant
against not only S.A., but her other family members as well, was relevant in
light of S.A.'s testimony that she was afraid to report the abuse out of fear that
Appellant would hurt her or her family. See Norton v. Commonwealth, 890
S .W.2d 632, 638 (Ky. App . 1994) (citing United States v. Masters, 622 F .2d 83
(4th Cir . 1980)) . The testimony regarding marijuana and alcohol use by
Appellant and forced use by the children was necessary for a full presentation
of the case, and also related to S .A .'s alleged fear of Appellant . See Gilbert v.
Commonwealth, 838 S .W.2d 376, 379 (Ky. 1991) (" `In order to determine
exactly what did or did not happen at any particular stage in the sequence, it
was necessary that the jury see the entire picture . . . evidence that provides
necessary perspective is competent .' . . . Juries do not have to perform their
function of fact-finding in a vacuum .") (quoting Ware v. Commonwealth, 537
S .W .2d 174, 179 (Ky. 1976)) . Accordingly, on retrial, with proper notice, the
aforementioned evidence would be admissible .
Sufficiency of the Evidence
Appellant argues that the evidence was insufficient to sustain a
conviction . We disagree . S.A.'s testimony describing the various instances of
abuse and identifying Appellant as the perpetrator was sufficient to defeat a
motion for a directed verdict . See Commonwealth v. Benham, 816 S .W.2d 186,
187 (Ky. 1991).
Finally, in light of our holding that Appellant is entitled to a new trial, the
arguments raised by Appellant regarding improprieties in the prosecutor's
closing argument are rendered moot . For the aforementioned reasons, the
judgment of the Hardin Circuit Court is reversed, and the case remanded for
proceedings consistent with this opinion .
All sitting . Minton, C.J ., Abramson, Cunningham, Noble, and Scott, JJ.,
concur. Cunningham, J ., concurs by separate opinion in which Abramson and
Scott, JJ ., join . Venters, J., concurs in result by separate opinion in which
Schroder, J ., joins .
CUNNINGHAM, J ., CONCURRING : I continue to subscribe to the belief
that for this Court to reverse a criminal conviction on palpable error, the
threshold of palpable error must be very high. It should be so egregious that it
jumps off the page. When considered in the context of the trial in this case, it
jumps off the page and cries out for relief. That is why I concur in the excellent
opinion of the majority .
Anyone familiar with the trials of serious sex cases, such as this one,
knows that they are tense and highly emotionally charged affairs . They become
more so when the victims are, as in this case, children. As recognized down
through the ages, the charge of rape or comparable wrong doing is easily made
and difficult to defend . That is why, until recent times, corroboration was
required for allegations by a single witness .
The sexual assault upon a child is a horrible crime. The charge itself
almost carries inherent prejudice . There is tremendous societal pressure for
juries to convict . Unfortunately, in many cases-such as this one-it comes
down to the victim's word against the defendant's . Whether a guilty person
goes unpunished for a dastardly crime or an innocent person goes to the
penitentiary for the rest of his life comes down to credibility .
The only physical evidence in this case was highly questionable and
somewhat mysterious . A physical exam of the victim at Kosair Children's
Hospital immediately after her initial allegations revealed no evidence of abuse.
However, after being away from Appellant and living with her biological father
for two months, the victim was examined at the Barren River Area Child
Advocacy Center by Dr. Patrick Hayden . At that time, Dr. Hayden found
evidence of sexual abuse. This evidence of "late discovery" becomes suspect
when coupled with the testimony of the victim's brother who said he was put
up to making false allegations against Appellant by their biological father. The
victim's brother also stated that their biological father had pornographic movies
and sex toys in the home.
It was against this back drop that the Commonwealth called Detective
Slack and Dr. Hayden to testify, not just as to their findings, but also
concerning detailed statements made to them by the alleged victim. Through
two pages of opinion, the majority recites the leading questions whereby the
Commonwealth's Attorney testifies as much as the witness . It is a full
regurgitation of the victim's testimony told through the Commonwealth's
Attorney and state detective . Add to this the testimony of Dr. Hayden, a
member of a profession which wears the mantle of respect and authority in
most every community . He testified at length about the hearsay statements
made to him by the victim . Unquestionably, the testimony of these two
witnesses was error. In light of the fact that this case was primarily a "he saidshe said" trial, the echoing of the claims of the victim through their respective
positions was highly prejudicial and amounts to manifest injustice .
No objection was made at trial to the highly prejudicial testimony . Trial
defense counsel may well have had legitimate reasons for this inaction .
However, the defense lawyer is not the only lawyer in the courtroom who has
an obligation to follow the rules of evidence and pursue the ends of justice .
When I was a Commonwealth's Attorney, I always took pride in the words of
this Court in the case of Niemeyer v. Commonwealth, 533 S.W .2d 218, 222 (Ky.
1976) : "One of the finest offices the public can give to a member of the legal
profession in this state is that of Commonwealth's Attorney. Its very status
becomes a mantle of power and respect to the wearer. Though few are apt to
wear it lightly, some forget, or apparently never learn, to wear it humbly. No
one except for the judge himself is under a stricter obligation to see that every
defendant receives a fair trial, a trial in accordance with the law, which means
the law as laid down by the duly constituted authorities, and not as the
prosecuting attorney may think it ought to be ."
These are the words of a former Commonwealth's Attorney and Chief
Justice of this Court, the distinguished John Palmore . They are germane to
this case in one real sense . Well-intended as he may have been, the prosecutor
should have known better. Hopefully, this case will be instructive to all . I
regret that this case must be reversed. But I must concur fully with the
majority.
Abramson and Scott, JJ ., join .
VENTERS, J ., CONCURRING IN RESULT: I concur in the reversal of the
judgment upon the grounds stated by the majority, but I would also reverse the
case because the two identical jury instructions for first-degree sexual abuse,
as presented to the jury, did not sufficiently distinguish the two offenses, and
therefore they fail to satisfy the requirements of Harp v Commonwealth, 266
S .W .3d 813 (Ky. 2008) .
Schroder, J., joins .
COUNSEL FOR APPELLANT :
David S . Mejia
455 South Fourth Ave ., Suite 382
Louisville, KY 40202
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
William Bryan Jones
Office of the Attorney General
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort, KY 40601
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