WILLIAM BRADLEY STIGALL V. COMMON OF KENTUCKYAnnotate this Case
NOT TO BE PUBLISHED OPINION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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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 CI'T'ED FOR. CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
RENDERED : JUNE 16, 2011
NOT TO BE PUBLISHED
,Suprnar Courf of "rufurhv
WILLIAM BRADLEY STIGALL
ON APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE JOHN KNOX MILLS, JUDGE
COMMONWEALTH OF KENTUCKY
MEMORANDUM OPINION OF THE COURT
AFFIRMING IN PART AND REVERSING AND VACATING IN PART
Appellant, William Bradley Stigall, was convicted by a Laurel Circuit
Court jury of first-degree rape and sentenced to twenty-eight years'
imprisonment . He now appeals as a matter of right. Ky. Const. § 110(2)(b) .
On April 4, 2007, Contessa Ellington, her five children, and husband
went to visit her mother, Darlene Stigall . Contessa's sixteen-year-old brother,
Appellant, was "hanging out" at his mother's house that day.
Contessa's three sons remained at the house while some of the family,
including Contessa and her daughters, left to look at trailers . Upon returning
to the house, L.E ., Contessa's five-year-old daughter, went inside to use the
bathroom . L.E . would later report to police that she opened the door to find
Appellant already in the bathroom . She further claimed that when she
attempted to leave the bathroom, Appellant grabbed her, put his hand over her
mouth, fondled, and raped her. L.E. also testified that Appellant warned her
not to tell anyone or he would kill her mother . The rape ended abruptly when
L.E .'s brother knocked on the door.
L. E . stayed with Contessa's sister-in-law, Margo Byrd, that evening and
eventually broke down crying and relayed the details of the rape . Byrd, a
pediatric nurse, examined L. E . and noticed redness in her vaginal area. L. E .
was taken to the emergency room and examined by the SANE nurse, who noted
redness or first stage bruising in L.E.'s right labia. The nurse advised L.E.'s
parents to take her to the Cumberland Valley Children's Advocacy Center (TLC
House), because the emergency room did not have proper equipment to
examine victims less than thirteen years of age.
Two days after the incident, Detective Stacey Anderkin, a Kentucky State
Police Detective specializing in child sex abuse cases, interviewed L.E. at the
TLC house . Several days later, Dr. Jackie Crawford, a TLC House physician,
examined L.E . and again noted bruising and swelling to L. E.'s labia minora, as
well as scarring and tearing of L. E.'s hymen . Dr. Crawford would later testify
that her findings were consistent with a sexual assault.
Appellant was eventually indicted and tried on one count of First-Degree
Rape and one count of First-Degree Sexual Abuse .' The first jury was unable
to reach a verdict, forcing the court to declare a mistrial . Appellant was retried
1 The district court granted the Commonwealth's motion to certify Appellant as a
Youthful Offender and transfer the case to circuit court. Appellant raises no issues
related to this transfer.
approximately six months later, convicted, and sentenced to twenty-eight years'
On appeal, Appellant raises four issues for our review . He contends that
the trial court erred when it failed to direct a verdict of acquittal for the offense
of first-degree rape; that he was denied due process of law by impermissible
bolstering of L .E.'s testimony ; that he was substantially prejudiced and denied
due process of law by the trial court's failure to order a competency hearing ;
and that the trial court erred by assessing costs on an indigent defendant .
For reasons that follow, we affirm Appellant's convictions and sentence,
but vacate the portion of the sentence imposing court costs .
A. Directed Verdict
Appellant first argues that the trial court deprived him of due process of
law when it failed to direct a verdict of acquittal for the offense of first-degree
rape. He claims that there was insufficient evidence demonstrating an
opportunity to commit the rape, as well as insufficient physical evidence-no
hair, blood, or semen-linking him to the rape . Specifically, he points out five
witnesses-himself, his father, mother, aunt, and a neighbor-that testified he
was outside during the timeframe the rape allegedly occurred.
The Commonwealth responds by arguing that matters of credibility and
weight given to testimony are reserved for the jury, not the trial court
considering the motion. The Commonwealth contends that it introduced the
victim's testimony that Appellant raped her and medical testimony that L.E.'s
injuries were consistent with sexual assault. Therefore, the Commonwealth
argues, based on the ample evidence, it was not clearly unreasonable for the
jury to find Appellant guilty of first-degree rape . We agree .
When considering a motion for directed verdict :
[T]he trial court must draw all fair and reasonable inferences from
the evidence in favor of the Commonwealth . If the evidence is
sufficient to induce a reasonable juror to believe beyond a
reasonable doubt that the defendant is guilty, a directed verdict
should not be given. For the purpose of ruling on the motion, the
trial court must assume that the evidence for the Commonwealth
is true, but reserving to the jury questions as to the credibility and
weight to be given to such testimony .
Commonwealth v. Benham, 816 S .W.2d 186, 187 (Ky. 1991) . On appellate
review, we affirm the trial court's denial of a directed verdict "[i]f under the
evidence as a whole it would not be clearly unreasonable for a jury to find the
defendant guilty . . . ." Commonwealth v. Sawhill, 660 S .W.2d 3, 5 (Ky. 1983)
(internal citation and quotations omitted) . We went on in Benham to further
clarify the minimal burden to withstand a directed verdict motion, stating that
"the trial court is expressly authorized to direct a verdict for the defendant if
the prosecution produces no more than a mere scintilla of evidence." Benham,
816 S .W.2d at 187-88 (emphasis added) .
In applying this standard to the present case, we conclude that the trial
court did not err in denying Appellant's motion for directed verdict. As with
most sex crimes, especially those involving minors, the only witnesses are the
perpetrator and victim. Here, the jury heard the victim testify that Appellant
trapped her in the bathroom, covered her mouth, raped her, and threatened to
kill her mother if she told anyone . Medical evidence corroborated L.E .'s
accusation of forced vaginal intercourse, as Dr. Crawford testified that L.E's
hymen was torn and that there was bruising and swelling on the right side of
her labia minora .
Appellant's arguments-that he lacked the opportunity, there was
minimal physical evidence, and he was accused as a cover-up-are also
unpersuasive at this level . This is a matter-of-right appeal, not a retrial for this
Court to reevaluate, based on a cold record, the victim's credibility .
Notwithstanding Appellant's overstated characterization of the evidence, we
limit our review to whether the Commonwealth produced more than a mere
scintilla of evidence, leaving credibility and weight of evidence determinations
for the jury. Here, victim testimony, corroborated by medical evidence, was
substantially more than the "mere scintilla" necessary to withstand a motion
for directed verdict. Therefore, we conclude that the trial court properly denied
Appellant's motion for directed verdict.
B. Bolstering of L.E.'s Testimony
Appellant next contends that a portion of Detective Anderkin's testimony
on recall improperly bolstered L.E.'s testimony and thus violated his due
process rights. Specifically, Appellant takes issue with the testimony regarding
L.E.'s purported escape from the bathroom .
Several days after the incident, L.E. reported to Anderkin that she
escaped when one of her brothers knocked on the door. This description was
consistent with her testimony at the second trial. However, at the first trial,
L.E. testified that she was able to get out of the bathroom when Appellant
slipped. Appellant sought to highlight this inconsistency at the second trial
and asked L . E. whether she remembered being previously asked if anyone
knocked on the bathroom during the incident . L.E . responded that she did
Subsequent to Appellant's cross-examination of L.E., Anderkin was
recalled by the Commonwealth, and testified that L.E .'s testimony at trial
regarding the knocking on the door was consistent with what L.E. initially
reported to her. Appellant alleges Anderkin bolstered L.E.'s testimony through
the following exchange :
Commonwealth : You've heard [L .E .] testify, you've heard the rest of
[L.E.'s] testimony today, have you not?
Anderkin : Yes I have.
Commonwealth : Were there any other inconsistencies in [L.E.'s]
testimony that you found striking?
Anderkin : No, Sir.
Then, when making its closing argument, the Commonwealth stated:
I asked Detective Anderkin, `the knocking on the door, did [L.E.] tell you
that two days later, when you interviewed her?'`Yes, she did.' `Anything
else different in her story.' `No .' She's been pointing at him for three
years now and a day. That's not changed .
Appellant contends that Anderkin, as a witness, cannot vouch for the
truthfulness of another witness . He further argues that Anderkin's testimony
was not a prior consistent statement under KRE 801 (a) (2), as he only
challenged L.E.'s testimony regarding the escape, not the entirety of her
As such, Appellant claims that the "striking inconsistencies"
testimony . 2
question went well beyond rebutting an implied charge of fabrication under
KRE 801 (a) (2), and was pure bolstering. However, he concedes the issue is
unpreserved . Therefore, our review is limited to determining whether any error
was palpable, i .e ., "so manifest, fundamental and unambiguous that it
threatens the integrity of the judicial process ." Martin v. Commonwealth, 207
S.W .3d 1, 5 (Ky. 2006) ; RCr 10 .26.
Although Appellant primarily focuses his argument on whether
Anderkin's rebuttal testimony was a prior consistent statement under KRE
801A(a)(2), that framework is inapplicable. Notably, Anderkin did not repeat
any of L. E.'s out-of-court statements; rather, she merely stated her opinion that
there were no striking inconsistencies in L.E .'s initial statement and L.E .'s
testimony at the (second) trial. Thus, the only cogent argument Appellant
presents relates to the propriety of Anderkin's purported bolstering testimony .
2 Appellant briefly contends that Anderkin's claim that L.E. has been consistent "does
not seem to be accurate" because "both the uniform citation and juvenile complaint
filled out by Det. Anderkin in this case states that Mr . Stigall fondled L.E .'s breasts .
That was not testified to at this trial or at [the first] trial ." This non sequitur argument
lacks legal citation, a request for relief, and is not properly briefed. CR 76.12 (4)(c)(v)
mandates that a brief shall contain arguments with "citations of authority pertinent to
each issue of law . . . ... (Emphasis added) . We will not consider arguments that fail to
conform with our rules.
"Generally, a witness may not vouch for the truthfulness of another
witness ." Stringer v. Commonwealth, 956 S .W.2d 883, 888 (Ky . 1997) .
Recently, we were confronted with a similar unpreserved bolstering allegation,
arising when a detective testified that various witnesses' testimony was
consistent with his investigation . Roach v. Commonwealth, 313 S .W .3d 101
(2010) . Although we reasoned that the detective's testimony "did not directly
assert that the other witnesses were truthful," his assertion, regarding the
consistency of the witnesses' testimony, suggested that he believed their
accounts to be credible . Id. at 113. However, we found no palpable error since
without the detective's testimony, the jury could have compared his
investigation results with the other witnesses' testimony and observed no
troubling inconsistencies .
Here, the contested portion of Anderkin's testimony-that L.E.'s
testimony was not strikingly inconsistent with her initial confession-did not
directly assert that L.E . was truthful, but did infer victim credibility . However,
such testimony was, at best, indirect bolstering. Borrowing our reasoning from
Roach, we likewise conclude that such bolstering was minimally impactful in
light of the vast evidence of guilt, and, therefore, does not amount to palpable
Finally, the above reasoning is equally applicable to Appellant's assertion
that he was further prejudiced by the Commonwealth's reference to Anderkin's
statement during closing argument . Moreover, we note that counsel have great
leeway in their closing statements, because a closing argument "is just thatan argument." Slaughter v. Commonwealth, 744 S .W.2d 407, 412 (Ky. 1987)
(emphasis in original) . Additionally, "[c]ounsel may draw reasonable inferences
from the evidence and propound their explanations of the evidence and why
the evidence supports their particular theory of the case." Wheeler v.
Commonwealth, 121 S .W.3d 173, 180-181 (Ky. 2003) . Consequently, we
cannot say that with the wide leeway allotted to closing arguments, in addition
to the other evidence of guilt, that the Commonwealth's reference to Anderkin's
statement during closing was palpable error .
C. Potential Incompetency to Stand Trial .
Appellant next argues that he was substantially prejudiced and denied
due process when the trial court failed to order a mental examination to
determine his competency to stand trial. In support of this contention,
Appellant points out that his first attorney filed a motion, prior to this first
trial, for a competency evaluation in connection with a motion to withdraw as
counsel . That motion conclusively opined that : Appellant did not appreciate
the gravity of the charges or the legal repercussions of a conviction, he did not
participate or assist in his defense, could not understand what was or was not
a proper defense, and rejected a plea offer without giving a reason.4 Appellant
also contends that his competency was called into question by the fact that he
The motion was filed on June 4, 2008 . The first trial was held on October 5, 2009.
Appellant's original trial counsel appears to have parroted the substance of the
relevant rule for determining incompetency . See KRS 504.060(4) ("lack of capacity
to appreciate the nature and consequences of the proceedings against one or to
participate rationally in one's own defense.") .
failed to retain another attorney for three months after his initial counsel
Although his motion for a competency evaluation was filed almost two
years prior to his second trial,5 the trial court neither ruled on the motion, nor
does it appear that subsequent defense counsel raised the issue.6
Conveniently, Appellant seems to suggest that he was competent for the first
trial-which ended with a hung jury-but after the second trial resulted in
conviction, his competency was apparently implicated by events occurring
before the first trial (the motion and failure to expediently secure replacement
counsel) . We find no merit in Appellant's argument .
Under Kentucky law, a defendant is incompetent when he lacks "capacity
to appreciate the nature and consequences of the proceedings against [him] or
to participate rationally in [his] own defense."
KRS 504 .060(4) . However,
"[coompetency to stand trial pertains to the defendant's mental state at the time
of trial . . . ." Bishop v. Caudill, 118 S .W.3d 159, 162 (Ky . 2003) (emphasis
added) . "If upon arraignment, or during any stage of the proceedings, the court
has reasonable grounds to believe the defendant is incompetent to stand trial,
the court shall appoint at least one (1) psychologist or psychiatrist to examine,
treat and report on the defendant's mental condition." KRS 504 .100(1)
(emphasis added) . "It is within the trial court's discretion to determine whether
there are `reasonable grounds' to believe a defendant may be incompetent to
His second trial commenced on April 5, 2010 .
His counsel did move for a criminal responsibility hearing, which was conducted
July 31, 2009 . Appellant was found to be criminally responsible .
stand trial ." Bishop, 118 S.W.3d at 162 . We therefore review the trial court's
implicit finding that was no "reasonable grounds" to believe Appellant was
incompetent for abuse of discretion .
Here, Appellant's entire argument is based on events that occurred prior
to his first trial. This appeal, quite plainly, is the result of his conviction at the
second jury trial . As emphasized above, a defendant's competency to stand
trial is assessed "at the time of trial." Id. Thus, apart from the dubious merits of
Appellant's claim that his generic competency motion and failure to secure
replacement counsel implicated his competency, we note that both events
preceded his first trial, and are thus inapposite to the determination of his
competency at his second trial . Consequently, Appellant fails to identify any
evidence demonstrating "reasonable grounds" to- doubt his competency to
stand trial for the second time. Therefore, we conclude that the trial court did
not abuse its discretion in not ordering an examination .
D. Assessment of Court Costs on an Indigent Defendant
Appellant finally contends that the trial court erred when it imposed
court costs of $155 .00, despite finding him indigent . He notes that his indigent
status was further evinced by the fact that he received the services of a public
defender at trial and was granted the right to appeal in forma pauperis. We
As we have stated several times over the last year, "court costs [may not]
be levied upon defendants found to be indigent." Travis v. Commonwealth, 327
S .W .3d 456, 459 (Ky. 2010) . Although this issue was not preserved,
sentencing is jurisdictional and cannot be waived by failure to object. Id.
Therefore, we vacate the trial court's imposition of court costs.
For these reasons, we affirm Appellant's conviction and sentence, save
the portion ordering him to pay court costs, which we reverse and vacate .
All sitting . Minton, C.J. ; Abramson, Cunningham, Noble, Scott, and
Venters, JJ., concur. Schroder, J ., concurs in result only.
COUNSEL FOR APPELLANT :
Rebecca Lynn Hobbs
Emily Holt Rhorer
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Attorney General of Kentuc
Michael John Marsch
Assistant Attorney General
Office of Criminal Appeals
Attorney General's Office
1024 Capital Center Drive
Frankfort, KY 40601