Bennnington v. Commonwealth of Kentucky
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Appellant was convicted of multiple sex crimes against his daughter which occurred over the course of fifteen years. Appellant raised numerous issues on appeal. The court held that appellant's conviction on Count 6 was reversed where the Commonwealth conceded that there was insufficient evidence to convict him of the rape described due to the absence of testimony that sexual intercourse had begun by that point. The court also held that all other convictions were affirmed and the case was remanded for modification and re-entry of judgment.
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RENDERED : MAY 19, 2011
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2009-SC-000521-MR
PERRY BENNINGTON
APPELLANT
ON APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE RODNEY D. BURRESS, JUDGE
NO . 07-CR-00120
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE NOBLE
AFFIRMING IN- PART, REVERSING IN PART AND REMANDING
Appellant, Perry Bennington, was convicted by a Bullitt County jury of
multiple sex crimes against his daughter, T.R., which occurred over the course
of fifteen years . He was sentenced to seventy years' imprisonment . He appeals
his convictions on several grounds . One of his convictions, for first-degree
rape, is reversed for insufficiency of the evidence, as conceded by the
Commonwealth . The rest are affirmed .
I. Background
Appellant's sex crimes against his daughter, T .R., stretched over a period
of over fifteen years, beginning when she was six years old . Now over 40, T . R.
testified at trial to the history of these events .
The first incident of sexual abuse T.R. could remember occurred in 1974 .
T. R. recalled Appellant holding her upside down and forcefully performing oral
sex on her. T . R. informed her mother of what happened, and they briefly
moved out of the house . But after being convinced by Appellant that it was
actually T.R.'s uncles who had abused T.R., her mother agreed to move back
in .
The next instance of sexual misconduct occurred three years later, in
1977, when T .R . was nine . This time Appellant touched T.R. sexually . Once
again T.R . and her mother left home because of the incident but also again,
after persuasion by Appellant, soon returned.
The next incident T.R. recalled happened in 1982 . Appellant pulled her
out of bed, took her to his room, and performed oral sex on her . This time,
when T .R. informed her mother of what had occurred, the mother left by
herself, checking into Our Lady of Peace Hospital. While the mother was gone,
Appellant would pull T.R. out of bed every night after she fell asleep and
perform oral sex on her.
T.R. further testified that as she turned fourteen years old, Appellant
continued this same pattern of behavior, performing oral sex on T. R. "all the
time ." Sexual intercourse began that year as well . After Appellant observed
T . R. talking to a young boy, he beat her so hard he was afraid he had seriously
injured her and then, after determining she was okay, forcefully initiated
sexual intercourse . T.R. recalled that after the first instance of sexual
intercourse, it recurred every night thereafter .
When T. R. was fifteen years old, she became pregnant with Appellant's
child . This child died at nine months old, but Appellant went on to father two
more children through T .R. T .R. testified that between the ages of fifteen and
22, sexual activity between her and her father occurred on a daily basis .
At age 22, T.R. finally fled home, but did not pursue criminal charges
against her father. Eventually in 2007, when her own daughter was being
molested, T .R. came forward to authorities and disclosed her sexual past with
Appellant . Appellant was indicted on five counts of first-degree sodomy, three
counts of first-degree rape, and six counts of incest. One count of sodomy was
later amended to first-degree sexual abuse to conform to the evidence
presented at trial .
Appellant was convicted on all four counts of sodomy, two as first-degree
and two as third-degree ; one count of first-degree sexual abuse ; all three
counts of rape, one as first-degree and two as third-degree ; and all six counts
of incest. During the penalty phase, the court discovered that "first-degree
sodomy" was not a crime in 1974, when one of the first-degree sodomies
Appellant was convicted of occurred. Thus, with approval of both parties, the
court applied the penalty from the most analogous crime then existing in 1974,
"Indecent or Immoral Practices with Another," KRS 435 .105 (repealed), to
Appellant's conviction on that count . The jury awarded the maximum
penalties on each count and the court, running some convictions concurrently
and some consecutively, issued an aggregate sentence of 70 years .
Appellant now challenges his conviction and sentence before this Court
as a matter of right. Ky. Const . § 110(2)(b) .
II. Analysis
Appellant raises numerous arguments on appeal. First, he claims that
his prosecution and conviction under the first-degree sodomy statute for
conduct predating that statute is palpable error. Second, he argues that he
was denied a unanimous verdict as a result of unspecific language in the
instructions. Third, he alleges that there was insufficient evidence underlying
virtually every count, thus mandating a directed verdict in his favor . Fourth,
he argues that the refusal of the court to order certain discovery requests was
reversible error . Finally, he contends that the exclusion of evidence calling into
question T .R.'s description of her mother .checking into Our Lady of Peace
Hospital served to prevent him from presenting a defense at trial.
A. Indecent or Immoral Practices with Another
Appellant claims that his conviction for first-degree sodomy for oral sex
with his daughter alleged to have occurred in 1974 is flawed because he was
indicted, prosecuted, and convicted under KRS 510 .070, which did not go into
effect until 1975 . He argues that he should have been indicted instead under a
statute in effect in 1974 . He also claims, with little explanation, that his
conviction under these circumstances violates the ex post facto and due
process clauses of the United States and Kentucky Constitutions. However,
Appellant did not object to this alleged error at trial.
The indictment on the count in question read : "That during the year
1974 . . . the above named Defendant committed the offense of Sodomy in the
First Degree by engaging in deviate sexual intercourse with [T.R.], a female less
than twelve years of age." That this presented a potential problem was raised
by the prosecutor when the case was called for trial . The prosecutor told the
trial court that the sodomy statute did not go into effect until January 1, 1975,
but that the indictment still stated a crime under the law in effect in 1974 and
that he was trying to get a copy of the 1974 statute . Appellant's counsel stated
that he had no response at that time, but that he might raise the matter in the
future . The jury was instructed and convicted Appellant under KRS 510 .070,
without objection.
The issue was not raised again until the penalty phase. The trial court
had done some research into the older statutes and found that the closest
crime existing in 1974 was indecent or immoral practices with another, under
KRS 435.105 (now repealed), which was punishable by a lesser sentence, one
to ten years, than first-degree sodomy, which would be a class A felony under
the circumstances . The trial court then instructed the jury as to the penalty
range for indecent or immoral practices instead of that for sodomy, which
resulted in a ten-year sentence.
Appellant lodged no objection to this remedial measure at trial and did
not raise the issue at any other time before this appeal. His claim, therefore, is
reviewable only as palpable error. See RCr 10 .26; see also Martin v .
Commonwealth, 207 S .W .3d 1, 3 (Ky . 2006) ("This Court reviews unpreserved
claims of error on direct appeal only for palpable error.") .
That at least a technical error occurred in this case is without question.
The offense of which Appellant was convicted was created as part of the Penal
Code, specifically KRS 510 .070, which went into effect in 1975 . But KRS
510.070 could not serve as the basis of a criminal conviction for behavior
occurring prior to its enactment:
The provisions of this code shall not apply to any offense
committed prior to January 1, 1975, notwithstanding the
provisions of KRS 446.110 . Such an offense must be construed
and punished according to the provisions of law existing at the
time of the commission thereof in the same manner as if this code
had not been enacted.
KRS 500 .040(1) .
However, mere technical error does not necessarily require reversal,
especially where the error was not preserved for appellate review and thus only
results in reversal if it is palpable and prejudicial . To reverse because of a
palpable error, an appellate court must find that "manifest injustice has
resulted from the error." RCr 10.26; see also Martin, 207 S .W.3d at 3 . "[T]he
showing is probability of a different result or error so fundamental as to
threaten a defendant's entitlement to due process of law." Martin, 207 S .W.3d
at 3 . Or, as stated elsewhere in Martin, palpable error exists when "the defect
in the proceeding was shocking or jurisprudentially intolerable ." Id. at 4 .
To decide whether the result likely would have been different had the
alleged error not occurred in this case, this Court must determine whether the
act that Appellant committed was criminalized prior to the time it was
committed, whether a conviction under the prior statute would have occurred,
and whether Appellant was sentenced in conformity with any penalties
prescribed at the time of the offense.'
The first question is whether Appellant's conduct was considered
criminal in 1974 . At that time, the various sexual offenses were classified
differently than under the modern Penal Code . But while the various names of
the offenses changed with the enactment of the Code, very little, if any,
previously innocent conduct was criminalized . Appellant's 1974 conduct was
covered by KRS 435.105(1), which read:
Any person of the age of seventeen (17) years or over who carnally
abuses the body, or indulges in any indecent or immoral practices
with the body or organs of any child under the age of fifteen (15)
years . . . shall be guilty of a felony, punishable on conviction
thereof by imprisonment in the penitentiary for not less than one
(1) year nor more than ten (10) years .
Whereas the Penal Code proscribes "deviate sexual intercourse" with
minors, see KRS 510 .070 - .090, the now repealed KRS 435.105 condemned
"carnally abus[ing] the body, or indulg[ing] in any indecent or immoral
practices with the body or organs of any child under the age of fifteen (15)
years ." Deviate sexual intercourse includes oral sex . See KRS 510 .010(1) . The
question, therefore, becomes whether "carnal abuse" and "indecent and
immoral practices" also covered such activity. Or, conversely, do the terms
mean something different?
' Answering these questions will also answer whether an ex post facto violation or due
process violation based on the ex post facto clause even occurred . See Collins v.
Youngblood, 497 U.S . 37, 49-50 (1990) (noting that a conviction would violate the bar
on ex post facto laws only if the law under which defendant was prosecuted
increased the punishment for the illegal behavior, or if it made previously legal
behavior illegal or altered the definition of the offense to Appellant's disadvantage) .
7
Both phrases are to a large extent antiquated and euphemistic . They
were polite attempts to describe the prohibited conduct indirectly . This makes
them difficult to readily define .
"Carnal abuse" was at least a commonly used phrase, both in cases and
statutes, and is included as an entry in Black's Law Dictionary. Recent
editions include the term, but do not define it, and instead cross-reference and
equate the term to "sexual abuse" under the definition of "abuse." See Black's
Law Dictionary 10, 226 (8th ed. 2004) . A more contemporaneous edition,
published in 1968, actually defined the term: "An act of debauchery of the
female sexual organs by those of the male which does not amount to
penetration . . . ." Black's Law Dictionary 268 (4th ed. 1968) . That definition,
however, states that the term "carnal abuse" is included under "carnal
knowledge" when the victim is a child, id., though "carnal knowledge"
ordinarily refers to intercourse with penetration, see id. (defining "carnal
knowledge" as "[c]oitus; copulation;
. . . sexual intercourse") .2
The phrase "indecent or immoral practices" was less commonly used .
Though use of the phrase to describe criminal sexual behavior was not unique
to Kentucky law, it appears that only a few other states employed it. See, e.g.,
People v. Groszman-Bagrati, 202 N.Y .S .2d 572, 573 (N.Y . City Ct. 1960)
(discussing a New York statute that criminalized both "carnally abuse[ing] the
body of a child" and "indulg[ing] in any indecent or immoral practice with the
sexual parts or organs of any such child, in a manner other than by an act of
2 The third edition, published in 1944, includes almost identical definitions . See
Black's Law Dictionary 282 (3d ed. 1944) .
8
sexual intercourse") ; State v. Robinson, 139 A .2d 596, 596 (Me. 1958) (noting
Maine statute criminalizing "tak[ing] any indecent liberty or liberties or
indulg[ing] in any indecent or immoral practice or practices with the sexual
parts or organs of any other person . . . under the age of 16 years") . The rarity
of this phrase is underscored by its complete omission from the last seven
editions of Black's Law Dictionary, though similar phrases are defined. See,
e.g., Black's Law Dictionary 783 (8th ed. 2004) (defining "indecent assault" as
"sexual assault" and "indecent liberties" as "[i]mproper behavior, usu. toward a
child, esp . of a sexual nature") .
More helpful is an examination of Kentucky case law contemporaneous
with the statute, where "carnal abuse" or "indecent immoral practices" were
found. But this, too, has its limits, since this Court's predecessor was
apparently uncomfortable describing the details of the crimes, preferring
instead to maintain the use of euphemisms or simply not to describe the
crimes at all. See, e.g., Dixon v. Commonwealth, 487 S .W.2d 928, 929 (Ky .
1972) (noting the ages of the offender and victim and nothing else but that
"[t]he victim's testimony clearly established the criminal offense charged and
positively identified Dixon as the offender") .
From those few Kentucky cases actually describing the offenses,
however, it appears that the terms used in KRS 435.105 covered sexual contact
other than intercourse, which was itself defined as "carnal knowledge" and was
the basis for other crimes, such as carnal knowledge of a child under KRS
435. 100, also now repealed.3 "Carnal abuse" and "indecent and immoral
practices," therefore, included a wide range of sexual conduct. For example, a
defendant's "rub[bing] his hand over [a girl's] breasts and between her legs"
was held to be carnal abuse . Faulkner v. Commonwealth, 343 S .W.2d 581, 582
(Ky. 1961) . In that case, "the child's testimony concerning the manner in
which the private parts of her body were molested, was sufficient to support a
finding that appellant had carnally abused her in the normal meaning of those
words ." Id. at 583.
This Court's predecessor also held that oral sexual contact violated KRS
435. 105 . Edwards v. Commonwealth, 500 S .W .2d 396, 398 (Ky. 1973) .4
Specifically, the defendant's "forc[ing] the victims to perform an oral sexual act"
violated the statute . Id. The Court stated that "[w]hile `indecent and immoral
practices' may be committed in many ways, we cannot conceive of any person
who would characterize [the defendant's] offense as anything other than
`indecent and immoral .' 1d; see also McDonald v. Commonwealth, 569 S .W .2d
3 That there is a difference between the two under Kentucky law is unquestionable .
See Lair v. Commonwealth, 330 S.W.2d 938, 940 (Ky . 1960) ("The instant charge on
which appellant was convicted is a violation of KRS 435.105, which was enacted in
1948 . This statute created the distinct offense of indecent and immoral practices by a
person over seventeen years of age with a child under fifteen regardless of sex or
consent . KRS 435 .100 was enacted to protect infants, either male or female, under
the age of eighteen years from being carnally known, while KRS 435 .105 is directed
to the protection of infants under the age of fifteen years against indecent and
immoral practices by one over the age of seventeen years . Each is directed to a
specific but different social problem and constitutes a separate and distinct
offense .") .
4 Edwards does not state the age of the victims or whether the prosecution was under
subsection (2) of KRS 435 . 105, which applies when the victim is over age fifteen.
Regardless, both subsections criminalized the same behavior--carnal abuse or
indecent or immoral acts-and differentiated the level of punishment based on the
age of the victim .
10
134, 135 (Ky. 1978) (defendant convicted of "indecent or immoral practices" for
forcing his wife to have oral sex) .5
Indeed, oral sexual contact with a child was, by itself, sufficient to
constitute a crime . The Commonwealth was not required to demonstrate any
specific intent (e .g., lustful) to prove a violation of KRS 435 .105 . "The carnal
abuse of a child is a crime without regard to the reasons or the intent with
which it was done ." Hatfield v. Commonwealth, 473 S .W.2d 104, 106 (Ky.
1971) .
Based on these authorities, this Court concludes that Appellant's
behavior was criminalized in 1974 . Specifically, his behavior was criminalized
by KRS 435.105 .
The next question is whether there is a substantial probability that
Appellant would not have been convicted if he had been indicted and
prosecuted under the now repealed statute . The crime of indecent or immoral
practices, when committed through an oral sexual assault on a child, is
essentially the same crime as first-degree . sodomy . The proof at trial would
have been the same. The Commonwealth would not have been required to
prove any additional factual elements, such as a mental state. No reasonable
jury would have failed to convict Appellant under KRS 435.105 where it was
willing to (and did) convict him under the modern sodomy statute . There is no
probability of a different result .
5 The Court in Edwards also held that despite its use of euphemistic language to
describe the prohibited acts, KRS 435 .105 was not unconstitutionally vague.
Edwards, 500 S.W.2d at 398 .
Finally, this Court must examine whether Appellant received a different
punishment than he would have under KRS 435.105. This is easily answered
by the fact that the trial court presciently decided to sentence Appellant under
KRS 435 .105 rather than KRS 510 .070 .
From this, we conclude that Appellant has not demonstrated a palpable
error. Justice Cunningham argues that regardless of palpability, the defective
indictment, failing to specify the appropriate indecent or immoral practices
charge and naming the modern statute, placed this crime beyond the court's
jurisdictional grasp, thereby imposing a structural bar to conviction . It is
established precedent, however, that a defective indictment can be waived. See
Strong v. Commonwealth, 507 S.W.2d 691, 692 (Ky. 1974) . "The deficiency
could easily have been cured in response to a timely objection . . . ." Id. As
Justice Cunningham points out, all the Commonwealth would have had to do
is reindict Appellant on this count or, with his consent, charge him by
information. However, not only did Appellant refrain from objecting, but he
affirmatively declared his consent to proceed with sentencing under the terms
of the applicable statute . Absent any manifest injustice, it would be unfair to
allow Appellant, through his consent, to bait the Commonwealth into
continuing with sentencing, only to now turn around and seek a second chance
on this charge.
In any event, this charge was properly under the jurisdiction of the court .
It is the allegation of criminal conduct, not the correct naming of an offense,
that activates a court's jurisdiction. The indictment's allegation of "deviate
12
sexual intercourse with . . . a female less than twelve years of age"--conduct
now known as sodomy but previously called indecent or immoral practices-satisfies this requirement. This adequately described conduct that was
criminalized in 1974, meaning the indictment was not void on its face and
Appellant was given adequate notice of the charged criminal conduct . The
circuit court's jurisdiction was, therefore, properly and sufficiently invoked by
the indictment in this case .
It is true, however, that the final judgment ought to have reflected the
technically applicable offense and statute that Appellant was actually
sentenced under, and not the contemporary crime of sodomy that was stated in
the indictment. Yet this technical error by the trial court need not require this
Court to throw out the baby with the bathwater. Appellant was tried under an
indictment describing conduct that was criminalized in 1974 . He was also
sentenced in conformity with the 1974 statute . The only correction necessary
is amendment of the judgment to reflect the proper name of the offense . We,
therefore, need only remand to the Bullitt Circuit Court with instructions to
amend its judgment to reflect that Appellant's conviction was for the crime of
indecent or immoral practices with a child under the age of fifteen in violation
of KRS 435 .105 .
B . Unanimous Verdict
Appellant next contends that he was deprived of his right to a
unanimous verdict by the lack of specificity in jury instructions . He did not
13
object to this alleged lack of specificity at trial, so this issue is also reviewed
only for palpable error . RCr 10 .26.
Appellant points to the similarity of instruction on counts 3 - 5 (sodomy) ;
counts 6 - 8 (rape) ; and counts 9 - 14 (incest) . The three sodomy instructions
are virtually identical ; the three rape instructions are virtually identical ; and
the six incest instructions are virtually identical . Appellant complains that
these virtually identical instructions could have given rise to a nonunanimous
verdict as in Miller v. Commonwealth, 283 S .W .3d 690, 695-96 (Ky. 2009) . In
Miller, "because the trial court used identical jury instructions on multiple
counts of third-degree rape and sodomy, none of which could be distinguished
from the others as to what factually distinct crime each applied to, [Miller] was
presumptively prejudiced ." Id. It was impossible to ascertain which particular
rape and sodomy the jury was convicting of on each count, or even if all jury
members were convicting him of the same rape and sodomy. Id. Thus, the
defendant in Miller was deprived a unanimous verdict .
The critical distinction between Miller and the case at bar, however, is
that the instructions here are not truly identical . The exception to this identity
is that each sodomy, rape, and incest is uniquely identified by the particular
year when it occurred: Instruction 3 refers to a sodomy between May 1981 and
May 1982; instruction 4 to a sodomy between May 1982 and May 1983 ;
instruction 5 to a sodomy between May 1983 and May 1984 ; instruction 6
refers to a rape between May 1981 and May 1982 ; instruction 7 to a rape
between May 1982 and May 1983 ; instruction 8 to a rape between May 1983
14
and May 1984 ; instruction 9 refers to incest between May 1984 and May 1985;
instruction 10 to incest between May 1985 and May 1986; instruction 11 to an
incest between May 1986 and May 1987; instruction 12 to an incest between
May 1987 and May 1988 ; instruction 13 to an incest between May 1988 and
May 1989; and instruction 14 to an incest between May 1989 and May 1990.
Each instruction refers to a factually distinct crime . While the
instructions do not detail the specifics of each particular instance of sodomy,
rape, and incest, such as the setting or the exact conduct engaged in, such
detail is not required. There is no uncertainty as to which crime the jury
convicted of on each count and thus, no deprivation of a unanimous verdict.
C. Sufficiency of the Evidence
Appellant next takes issue with the sufficiency of the evidence underlying
the convictions.
Appellant first argues that there was insufficient evidence supporting
counts 4 and 5, under which he was convicted of third-degree sodomy . Count
4 charges Appellant with engaging in oral sex with T .R. when she was fourteen
years old, and count 5 when she was fifteen years old . Appellant's basis for
this argument is unclear . T.R . specifically testified that when she was fourteen
years old, oral sex occurred "all the time ." She further testified that once she
turned fifteen, sexual activity-both vaginal and oral-took place daily .
Clearly, such victim testimony was sufficient to convict Appellant of these
crimes .
15
Appellant next questions the sufficiency of the evidence for the rape
convictions under counts 6 and 8 . The Commonwealth concedes the
insufficiency of evidence to convict Appellant of the rape described in count 6
(May 1981-May 1982) due to the absence of testimony that sexual intercourse
had begun by that point. As such, his conviction on that count is reversed .
However, as to Appellant's conviction under count 8, for raping T.R .
between May 1983 and May 1984, when she was fifteen years old, there was
indeed sufficient evidence. Once again, T.R .'s testimony that from the time she
turned fifteen, sexual activity-both vaginal and oral-occurred daily, suffices .
Appellant also challenges the incest convictions on sufficiency of the
evidence grounds. These six convictions relate to the incestual sexual activity
engaged in by Appellant from the time T. R. was sixteen until she was 21 . Yet
again, the Commonwealth met its burden of providing sufficient evidence to
support these charges through T.R.'s testimony that from the time she turned
fifteen until she left home at age 22, sexual intercourse occurred daily. This
testimony was fully sufficient to support the six convictions for incest.
D. Discovery Requests
Following initial discovery proceedings, Appellant filed two additional
discovery requests, for a bill of particulars and for T.R .'s medical records .
These were both denied, at least in part, by the trial court and are raised on
appeal .
Appellant sought a bill of particulars regarding the rape, sodomy, and
incest charges . The trial court granted this motion with respect to counts 1
16
and 2 of sodomy, which charged isolated events occurring in 1974 and 1977 .
It denied a bill of particulars on the remaining allegations because they
represented a continuous course of conduct of sodomy, rape, and incest
instead of isolated events .
"It is a basic premise of the law that the granting of a bill of particulars,
after an indictment has been returned addresses itself to the sound discretion
of the trial court which will not be overturned on appeal unless there is an
abuse of this discretion." Deskins v. Commonwealth, 512 S .W .2d 520, 524 (Ky.
1974) ; see also RCr 6.16. The decision to grant the bill of particulars on the
two isolated instances of sodomy, but not on the rest, was a proper exercise of
the trial court's discretion. Because the remaining instances of sodomy, rape,
and incest occurred frequently, or even daily for some time, the Commonwealth
did not intend to focus on specific occurrences. Indeed, T.R. did not describe
them in any further detail at trial, simply explaining that those crimes
continuously occurred in each year . It might well have even been impossible
for her to distinguish isolated instances of this continuing course of conduct .
Having received a statement setting forth all details that T.R. could recall,
Appellant was on satisfactory notice . No bill of particulars was needed for him
to prepare a defense . See Sussman v. Commonwealth, 610 S.W .2d 608, 612
(Ky. 1980) .
Appellant also made an unsuccessful discovery request for T. R.'s
prenatal care records, pediatric records, and obstetrics/ gynocology records. He
claims that these materials could have contained exculpatory evidence for his
17
defense . Specifically, he suggests that these records might have contained
statements that someone else was her father or that someone else abused her.
The trial court was well justified in denying Appellant's request.
According to Kentucky's rules of criminal procedure, a defendant may obtain
discovery only "upon a showing that the items sought may be material to the
preparation of the defense." RCr 7 .24(2) . Appellant made no showing why
T. R.'s medical records may contain statements about Appellant not being her
father or evidence of other abusers.
Appellant argues that regardless of Kentucky's discovery rules, he had a
constitutional right to obtain the records. - However, in all the cases cited by
Appellant for constitutional support of this discovery request, the defendant
had failed to receive an actual document known or likely to contain specific
information alleged to be exculpatory . See, e.g., Brady v. Maryland, 373 U.S .
83, 84 (1963) (suppression of confession of third party, discovered after trial) ;
United States v. Bagley, 473 U .S. 667, 671 (1985) (suppression of contracts
between the United States and its witnesses to provide information related to
the defendant's prosecution, which were discovered following trial pursuant to
FOIA demands) . In fact, in the lone Kentucky Supreme Court case cited by
Appellant on this matter, the Court held that discovery of a victim's
psychotherapy records is permitted "only upon receipt of evidence sufficient to
establish a reasonable belief that the records contain exculpatory evidence."
Commonwealth v. Barroso, 122 S .W.3d 554, 564 (Ky. 2003) .
18
Admittedly, discovery of psychotherapy records may be treated differently
than ordinary medical records due to the explicit psychotherapist-patient
privilege in the rules of evidence . See KRE 507(3) . Still, there is no
constitutional right to discover any records absent some showing why the
materials sought might reasonably contain information helpful to one's
defense . Here, Appellant has provided no concrete proof that the information
he sought to obtain would actually be found in the hospital records. His quest
for exculpatory evidence was purely speculative . If such pure speculation were
sufficient grounds for discovery, the scope would be limitless and the process
neverending . Such a result is not authorized by rules of procedure or
mandated by any constitutional provision .
E. Impeachment Evidence
Appellant's final challenge arises from the Court's refusal of his attempt
to introduce Our Lady of Peace's records to prove that T.R.'s mother had never
been admitted as a patient there . Appellant was not permitted to introduce the
hospital records because he could not authenticate them .
While admitting he should have called a custodian of the records as a
witness to authenticate the documents, Appellant suggests that KRE 803(7)
exempts him from this requirement . That evidentiary rule, however, has
nothing to do with authentication; it is an exception to the hearsay rule .
Whether or not these documents are excepted from hearsay, and indeed
whether or not they are relevant at all (or purely collateral), they still must be
authenticated to be admitted at trial. KRE 901 . Authentication is a separate
19
requirement for admissibility . Appellant failed to meet this requirement and
the court, therefore, acted properly in denying admission of the records into
evidence.
III. Conclusion
For the aforementioned reasons, the conviction on count 6, first-degree
rape, is reversed. All other convictions are affirmed and this case is remanded
to Bullitt Circuit Court for modification and re-entry of judgment consistent
with this opinion .
Minton, C .J . ; Abramson, Schroder and Venters, JJ., concur.
Cunningham, J., concurs in part and dissents in part by separate opinion in
which Scott, J ., joins .
CUNNINGHAM, J ., CONCURRING IN PART AND DISSENTING IN PART : I
concur in most all of the majority opinion . However, I take strong exception to
this Court's affirming the conviction and sentence on Count One to the 1974
crime . I recognize that, in this case, it will not substantially affect the ultimate
sentence. However, I firmly believe that the serious flaw in the Court's
reasoning will bode ill in future cases .
Actually, the majority's handling of this narrow issue strikes me as being
unusual and bordering on the bizarre . We hold today that a trial judge can
change one criminal charge to another after a person has been tried on the first
charge .
This is not a matter of palpable error as addressed by the majority . Nor
is the error "technical" unless we consider the whole subject ofjurisdiction as
20
being technical. The trial court never acquired jurisdiction over the offense for
which Appellant was sentenced. And all agree that the court did not have
jurisdiction of the 1974 act under the sodomy in the first degree statute . That
statute was not enacted until 1975.
To recap succinctly, Appellant was charged with and convicted of sodomy
in the first degree for a 1974 crime . Yet, there was no sodomy in the first
degree crime in 1974 . The prosecutor knew of this problem before the case
was tried, but inexplicably charged on. After conviction and before sentencing,
the prosecutor and judge went to work looking for a crime that existed in 1974
which seemed to fit the facts of the case . They found it in the old KRS
435.105-"indecent or immoral practices with another." Pull the first-degree
sodomy offense on which the jury had already voted and slip in "indecent or
immoral practices with another." So, Appellant was convicted of sodomy in the
first degree under KRS 510.070 and sentenced under KRS 435 .105 for another
crime .
That, to me, is slightly bizarre .
As it stands, this case holds that the circuit court can take jurisdiction of
any felony at any time it pleases--as long as the facts developed in the case fit
the crime .
The majority spends almost eight pages in its opinion attempting to show
that the old crime is, in essence, the same as the new sodomy in the first
degree felony. That exhaustive analysis seems irrelevant to me since we are
talking about jurisdiction . With that said,, no history lesson on the two crimes
21
is needed . They are distinguishable on their face . Under the old law, KRS
435.105, this crime cannot be committed by a juvenile less than seventeen
years of age . And the victim must be under fifteen years of age . Pursuant to
KRS 510 .070, under which Appellant was convicted, a person of any age can
commit the crime and the victim has to be under the age of twelve . Certainly,
they are "different offenses" as intended by RCr 6 .16.
"The court may permit an indictment, information, complaint or citation
to be amended at any time before verdict or finding if no additional or different
offense is charged . . . ." RCr 6 .16. (Emphasis added) . Clearly, different
offense was charged in this case for sentencing.
The issue is addressed in Crouch v. Commonwealth, 323 S .W.3d 668 (Ky .
2010) . There, the defendant was charged with theft of identity, but he asked that
the indictment be amended, charging him with the offense of giving a false name to
a peace officer . This Court affirmed the Court of Appeals holding that the trial
court could not amend the indictment because it would result in the defendant
being charged with an entirely different offense . The Court said:
[A] trial court lacks jurisdiction to change a valid
indictment except as provided by Kentucky Rules of
Criminal Procedure (RCr) 6.16 . RCr 6 .16 provides in
pertinent part that a court "may permit an indictment,
information, complaint or citation to be amended any
time before verdict or finding if no additional or
different offense is charged and if substantial rights of
the defendant are not prejudiced ."
(Emphasis in
original) .
Id. at 672 .
22
Clearly, changing the charge against Crouch from the felony offense of
theft of identity to the misdemeanor . charge of giving a false name to a peace
officer would have resulted in Crouch being charged with an entirely different
offense . So the trial court properly denied Crouch's request to modify the
indictment .
In Coleman v. Commonwealth, 501 S .W.2d 583, 584 (Ky. 1973), the
defendant was indicted for murder, convicted of voluntary manslaughter, and
sentenced to twenty-one years. He made a motion to amend the indictment
from murder to homicide occurring in the course of striking, stabbing or
shooting. In response to the motion, the Court said : "A trial court has no
authority to amend an indictment to charge an additional or different offense,
RCr 6.16. This has been the rule in this Commonwealth for a great number of
years, see Commonwealth v. Adams, 92 Ky. 134, 17 S .W. 276 (1891) ."
There are only two ways that a circuit court in Kentucky acquires
jurisdiction of felony cases-through grand jury indictment or by information .
Neither method was used in this case for the crime in question .
RCr 6 .02(1) states: "All offenses required to be prosecuted by indictment
pursuant to Section 12 of the Kentucky Constitution shall be prosecuted by
indictment unless the defendant waives indictment by notice in writing to the
circuit court, in which event the offense may be prosecuted forthwith by
information ." Appellant was never indicted under KRS 435 .105, nor waived
"indictment by notice in writing to the circuit court" before his conviction .
23
Justice Graves speaks to this issue in the important case of Malone v.
Commonwealth, 30 S.W .3d 180, 183 (Ky. -2000) :
A criminal prosecution requires the existence of an
accusation charging the commission of an offense.
Such an accusation either in the form of an indictment
or an information, is an essential requisite of
jurisdiction. In Kentucky, subject matter jurisdiction
over a felony offense may be invoked either by a grand
jury indictment or by information in cases where the
individual consents. (Emphasis added) .
In Malone, our Court simply upheld the proposition that a defendant may
waive a grand jury indictment and be charged by information . It simply follows
RCr 6.02 . Either an indictment or information is required. There is no other
way.
The Malone case makes clear that there is a peculiar twist in regard to
the prosecution of felonies . It is a subject matter jurisdictional question . But
it is one instance where jurisdiction can be waived . Waiver does not come into
play here for two reasons. The charge was not changed before the prosecution
and conviction, but afterwards-way too late for any waiver . Secondly, any
acquiescence to be sentenced under a different statute was never given in
writing as required by RCr 6 .02 .
In this case, the prosecution would not have been able to amend the
indictment, even before trial, since it charged a separate offense and not a
lesser included . The proper procedure would have been to re-indict Appellant
or charge him on this count by information if he consented-which would have
been likely since it was one of several charges for which he stood trial.
24
Today, this Court, by judicial fiat, has created a third way for the circuit
court to gain jurisdiction over criminal cases-indictment, information, and
agreement. In doing so, we have totally eviscerated RCr 6 .02(l)-the rule for
proceeding by information. That rule now becomes no more necessary than
the human appendix . We have also held that an indictment can be amended,
even if it charges a different crime-a practice proscribed by RCr 6 .16.
The importance of this error gets lost in this case because of numerous
charges and sentences . However, I respectfully submit that it will loom large
somewhere down the road. I, therefore, dissent only in regard to Count One
and concur in what is otherwise a very fine opinion .
Scott, J ., joins .
COUNSEL FOR APPELLANT :
Emily Holt Rhorer
Department of Public Advocacy
100 Fair Oaks Lane
Suite 302
Frankfort, Kentucky 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, Kentucky 40601-8204
25
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