Samuel Hunter v. Commonwealth of Kentucky ( 2020 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
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PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
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BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
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2019-SC-000165-MR
SAMUEL HUNTER APPELLANT
ON APPEAL FROM MCCRACKEN CIRCUIT COURT
V. HONORABLE TIMOTHY JON KALTENBACH, JUDGE
NO. 16-CR-00411
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Samuel D. Hunter was convicted by a McCracken County jury of rape in
the first degree, victim under twelve years of age,1 and sentenced to life
imprisonment. He appeals to this Court as a matter of right, Ky. Const. §
110(2)(b). Hunter raises five allegations of error on appeal, asserting 1) the
trial court should have granted his motion for a directed verdict, 2) two of the
Commonwealth’s witnesses improperly bolstered the victim’s testimony, 3)
prosecutorial misconduct denied him a fair trial, 4) the trial court improperly
1 Kentucky Revised Statutes (KRS) 510.040, a Class A felony.
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denied him the ability to present an alternate perpetrator defense, and 5)
cumulative error. Following a careful review, we affirm.
In 2016, seven-year-old Stacy2 lived with her father, stepmother, and
grandmother. After school on Friday, May 27, 2016, Stacy went to stay with
her biological mother for the weekend. Hunter lived in the same trailer as
Stacy’s biological mother and the mother’s live-in boyfriend. Stacy came home
early from the visit on Saturday. Stacy subsequently began complaining of
itching and burning with urination. Her step-mother examined her and
noticed Stacy’s underwear was caked with mucus. Her step-mother collected
the underwear, placed them in a zippered plastic bag, and stored them in the
refrigerator.
On Thursday, June 2, 2016, Stacy went to the Pediatric Group of
Paducah for an office visit where vaginal discharge and a rash were observed,
and her mucus-caked underwear was presented for medical professionals to
see. Lab testing was ordered, and on June 6, 2016, Stacy was diagnosed with
gonorrhea. After Stacy told her pediatrician, Dr. Elizabeth McGregor, someone
had touched her private area and identified the perpetrator as Hunter, the
doctor contacted social services who in turn sought police intervention. Topical
creams were applied, and an injection of antibiotics was administered to treat
Stacy’s infection.
2 Stacy is a pseudonym used in place of the victim’s actual name to protect her
privacy.
2
McCracken County Sheriffs Detective Sarah Martin spoke with Stacy,
her father, and stepmother on June 6, 2016. Two days later, Stacy underwent
a forensic interview at the Purchase Area Sexual Assault and Child Advocacy
Center (“PASAC”). Stacy informed the interviewer what happened, where it
happened, and who hurt her, claiming Hunter had hurt her “pee spot.” Stacy
was interviewed a second time at PASAC a couple of months later and provided
the same information to the interviewer, including the name of her abuser as
being Hunter. Testing on Stacy’s underwear revealed the presence of DNA from
a source other than Stacy, but an insufficient quantity existed to make any
match. Presumptive human blood and saliva were also found during testing
but again, no match could be made.
Detective Martin interviewed numerous individuals during her
investigation. When questioned, Hunter denied any sexual contact with Stacy
but admitted he saw the girl on the night the rape occurred. He speculated a
former girlfriend was trying to frame him. Hunter consented to undergo a rape
test kit. He subsequently tested positive for gonorrhea. Hunter was arrested
and indicted for raping Stacy.
A three-day jury trial was convened on December 18, 2018. Evidence
presented included the facts previously stated, albeit in significantly greater
detail. Additional, conflicting evidence was likewise adduced. Pertinent to this
appeal, Stacy’s pediatrician and the forensic interviewer were permitted to
testify Stacy spoke to them about the assault and provided them the name of
the assailant; the trial court did not permit either witness to specify the
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individual Stacy identified. Hunter presented an alternative perpetrator
defense, asserting a friend of the step-mother or a co-worker of the father had
committed the rape; he was prohibited from introducing copies of the uniform
citation of a charge against one of the men or certified copies of the criminal
conviction of either man. Hunter’s motions for directed verdict, wherein he
asserted the Commonwealth had presented insufficient evidence of penetration,
were denied. The jury returned a guilty verdict and recommended a sentence
of life imprisonment. This appeal followed.
Hunter asserts five errors exist warranting reversal of his conviction and
sentence. He first contends the trial court should have granted his motion for
a directed verdict. Next, Hunter asserts Dr. McGregor and the PASAC
interviewer were improperly permitted to bolster Stacy’s testimony. Third,
Hunter argues the prosecutor repeatedly made improper comments and
engaged in a pattern of misconduct sufficient to deny him a fair trial. Fourth,
he contends the trial court’s refusal to permit him to introduce certain
documents related to alternate perpetrators improperly denied him the ability
to present a complete defense. Finally, Hunter presents a cumulative error
claim. Conceding his second and third arguments are unpreserved for
appellate review, Hunter requests palpable error review under RCr3 10.26. A
palpable error occurs if a defendant’s substantial rights were affected and a
manifest injustice occurred. Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky.
3 Kentucky Rules of Criminal Procedure.
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2006). Only if an error is “shocking or jurisprudentially intolerable,” id. at 4,
will it be deemed palpable. Justice Cunningham, in his concurring opinion in
Alford v. Commonwealth, 338 S.W.3d 240, 251 (Ky. 2011), once described the
threshold for palpable error: “It should be so egregious that it jumps off the
page . . . and cries out for relief.”
For his first allegation of error, Hunter contends the trial court
improperly denied his motions for a directed verdict of acquittal because the
prosecution’s timeline does not fit with the incubation period of gonorrhea.
However, as noted by the Commonwealth, this argument was not presented to
the trial court for consideration. Rather, Hunter’s motions for directed verdict
below challenged only the sufficiency of the Commonwealth’s proof regarding
penetration. Although testimony was elicited during trial regarding the
incubation period of gonorrhea being two to seven days, absolutely no mention
of such timeline was made during any of the three times Hunter made and
renewed his motions for directed verdict.
It is axiomatic “[o]ur jurisprudence will not permit an appellant to feed
one kettle of fish to the trial judge and another to the appellate court.” Owens
v. Commonwealth, 512 S.W.3d 1, 15 (Ky. App. 2017) (citing Elery v.
Commonwealth, 368 S.W.3d 78, 97 (Ky. 2012) (citing Kennedy v.
Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976)). “It goes without saying that
errors to be considered for appellate review must be precisely preserved and
identified in the lower court.” Elwell v. Stone, 799 S.W.2d 46, 48 (Ky. App.
1990) (citation omitted). Contrary to Hunter’s assertion, his argument is not
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the type of “more focused and specific version” of an argument permitted in
Buster v. Commonwealth, 364 S.W.3d 157, 162 (Ky. 2012), it is a completely
new and separate theory of error. Acknowledging the probability the error is,
in fact, unpreserved for appellate review, in his reply brief Hunter requested
palpable error review. The record clearly reveals this is the only review
available to Hunter on this issue.
In ruling on a motion for directed verdict, the trial court takes as true all
evidence favoring the Commonwealth and all reasonable inferences which can
be drawn from such evidence. It is not at liberty to determine the weight or
credibility to be given to the evidence, that function being reserved for the jury.
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). On review of a
trial court’s decision, we are tasked with determining whether, “if under the
evidence as a whole, it would be clearly unreasonable for a jury to find guilt,
only then the defendant is entitled to a directed verdict of acquittal.” Lamb v.
Commonwealth, 510 S.W.3d 316, 325 (Ky. 2017). Convictions must be based
on more than a mere “scintilla of evidence,” Benham, 816 S.W.2d at 187-88, as
“there must be evidence of substance.” Commonwealth v. Sawhill, 660 S.W.2d
3, 5 (Ky. 1983).
The trial court utilized the appropriate standard in ruling on Hunter’s
motions for directed verdict and analyzed the evidence in the light most
favorable to the Commonwealth. Hunter and Stacy were present in the same
mobile home on the weekend of May 27, 2016; Stacy’s mother’s live-in
boyfriend testified he was awakened on the night of May 27 by a child’s scream
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and her mother told him the next day someone had “touched” Stacy; Stacy and
Hunter both tested positive for gonorrhea, a disease which testimony revealed
can only be transmitted by secretions during sexual contact; and Stacy named
Hunter as her assailant who “hurt her pee spot.” Based on these facts alone, a
reasonable juror could conclude Hunter was guilty of the rape. Clearly, other
evidence was introduced indicative of guilt and other evidence regarding
Hunter’s innocence. However, substantial evidence of guilt existed and we
cannot say such a finding would have been clearly unreasonable. Thus, we
discern no error in the trial court’s ruling. There being no error, clearly there
can be no palpable error.
Next, Hunter requests palpable error review of what he contends was
improper bolstering of Stacy’s testimony by Dr. McGregor and the PASAC
interviewer. He argues each of these witnesses was permitted to give hearsay
testimony by recounting details of their interviews with Stacy. In support of
his position, Hunter relies on Alford and Hoff v. Commonwealth, 394 S.W.3d
368, 379 (Ky. 2011), cases in which this Court found palpable error in sexual
abuse cases where witnesses were permitted to recount the victim’s version of
events and identity of the abuser. Again, as noted by the Commonwealth,
these elements were not present in the instant case.
Stacy testified Hunter was her rapist. That identification was later called
into question and the jury was aware Hunter was presenting an alternative
perpetrator defense. Subsequently, Dr. McGregor and the PASAC interviewer
testified Stacy told them who her attacker was. Neither was permitted or
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attempted to name Hunter as the assailant Stacy identified. In Edmonds v.
Commonwealth, 433 S.W.3d 309 (Ky. 2014), this Court concluded permitting
medical professionals to testify to a hearsay statement naming a defendant as a
perpetrator is highly prejudicial and inappropriate. However, we went on to
hold repetition of statements which do not directly identify the defendant as
having committed the charged offense are not improper, specifically referring to
the rule laid down in Alford.
“Rulings upon admissibility of evidence are within the discretion of the
trial judge; such rulings should not be reversed on appeal in the absence of a
clear abuse of discretion.” Simpson v. Commonwealth, 889 S.W.2d 781, 783
(Ky. 1994). The complained of testimony was properly admitted under
Edmonds. The mere fact the juiy could infer Stacy named Hunter as her rapist
is insufficient to require reversal. No manifest injustice occurred and therefore,
there was no palpable error in permitting the testimony.
Third, Hunter contends the prosecutor engaged in several instances of
misconduct in questioning Dr. McGregor and the PASAC interviewer and in
making comments on the evidence in closing statements, resulting in the
denial of a fair trial. As with his previous assertion, this allegation of error is
unpreserved and Hunter requests palpable error review.
Prosecutorial misconduct is “a prosecutor’s improper or illegal act
involving an attempt to persuade the jury to wrongly convict a
defendant or assess an unjustified punishment.” Noakes v.
Commonwealth, 354 S.W.3d 116, 121 (Ky. 2011) (alterations omitted)
(quoting Black’s Law Dictionary (9th ed. 2009)). It can take a variety of
forms, including improper questioning and improper closing argument.
Duncan v. Commonwealth, 322 S.W.3d 81, 87 (Ky. 2010).
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Dickerson v. Commonwealth, 485 S.W.3d 310, 329 (Ky. 2016). Where, as here,
no contemporaneous objection is lodged concerning the alleged improper acts,
we will reverse only if the alleged prosecutorial conduct is “flagrant” and
renders the trial fundamentally unfair. Id. Flagrant misconduct is judged
utilizing a four-factor test:
“(1) whether the remarks tended to mislead the jury or to prejudice
the accused; (2) whether they were isolated or extensive; (3)
whether they were deliberately or accidentally placed before the
jury; and (4) the strength of the evidence against the accused.”
Mayo [u Commonwealth, 322 S.W.3d 41, 56 (Ky. 2010)] (quoting
Hannah v. Commonwealth, 306 S.W.3d 509, 518 (Ky. 2010)). In
the end, our review must center on the essential fairness of the
trial as a whole, with reversal being justified only if the
prosecutor’s misconduct was “so improper, prejudicial, and
egregious as to have undermined the overall fairness of the
proceedings.” Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky.
2006) (citing Soto v. Commonwealth, 139 S.W.3d 827, 873 (Ky.
2004)); see also Slaughter v. Commonwealth, 744 S.W.2d 407, 411­
12 (Ky. 1987) (“The required analysis . . . must focus on the overall
fairness of the trial, and not the culpability of the prosecutor.”)
(citing Smith v. Phillips, 455 U.S. 209, 102 S. Ct. 940, 71 L. Ed. 2d
78 (1982)).
Id.
Hunter asserts the prosecutor improperly questioned Dr. McGregor and
the PASAC interviewer regarding Stacy telling them the name of her rapist and
tied their answers back to Stacy in summation by repeating her testimony she
“told the doctor everything.” He further challenges the prosecutor’s attempt to
tie the saliva found in Stacy’s underwear to Hunter by positing spit could be
used as a lubricant to aid in penetrating a young girl’s vagina. Finally, he
asserts it was improper to comment on the incubation period of gonorrhea to
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tie him to the assault based on his contention the timeline for symptoms
arising conclusively excludes him from being the perpetrator. Hunter contends
the prosecutor’s improper comments were excessive, deliberately placed before
the jury to prejudice him, and the evidence of his guilt was not overwhelming.
Thus, he urges reversal. We disagree.
“Issues involving the admission of evidence or testimony, when ruled
upon by the trial court, do not constitute prosecutorial misconduct.” Stopher v.
Commonwealth, 57 S.W.3d 787, 806 (Ky. 2001). “Unpreserved claims of error
cannot be resuscitated by labeling them cumulatively as ‘prosecutorial
misconduct.”’ Noahes, 354 S.W.3d at 122 (quoting Young v. Commonwealth,
50 S.W.3d 148, 172 (Ky. 2001)) (bracket omitted). Fundamentally, that is the
gist of Hunter’s allegations.
The first and third assertions are “nothing more than alleged evidentiary
errors,” id., do not constitute prosecutorial misconduct, and no further review
is required. As to the second assertion, “opening and closing arguments are
not evidence and prosecutors have a wide latitude during both. ‘A prosecutor
may comment on tactics, may comment on evidence, and may comment as to
the falsity of the defense position.’” Stopher, 57 S.W.3d at 805-06 (quoting
Slaughter, 744 S.W.2d at 412). The Commonwealth’s closing statement
included no misconduct because the challenged comment represented a
legitimate inference drawn from the evidence. The overall fairness of the trial
cannot reasonably be said to have been undermined by the prosecutor’s
statement. There was no palpable error.
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Fourth, Hunter argues the trial court denied him the ability to present a
complete alternate perpetrator defense when it disallowed introduction of
several documents. He contends “the trial court abused its discretion in
preventing defense counsel from introducing evidence that [the alleged
alternate perpetrators] were child molesters.” We review a trial court’s
evidentiary rulings for an abuse of discretion. Woodard v. Commonwealth, 147
S.W.3d 63, 67 (Ky. 2004). An abuse of discretion occurs when the decision is
arbitrary, unreasonable, unfair, or unsupported by sound legal principles.
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
Hunter sought to introduce evidence of prior bad acts to prove the
alleged alternate perpetrators acted in conformity therewith. While Hunter
asserts the proposed evidence was proof of “motive,” the documents he
attempted to introduce were, in fact, propensity evidence which is strictly
inadmissible under Kentucky Rules of Evidence 404.
Though the bar is set lower for admissibility of reverse-404(b)
evidence, that evidence “is not automatically admissible.” Beaty [v.
Commonwealth, 125 S.W.3d 196, 208 (Ky. 2003)]. “[E]ven when
offered by the defendant, evidence of a person’s prior bad act may
be admissible to establish identity only if ‘the prior uncharged act
is sufficiently similar to the charged act so as to indicate a
reasonable probability that the acts were committed by the same
person.” McPherson v. Commonwealth, 360 S.W.3d 207, 213 (Ky.
2012) (quoting Commonwealth v. Maddox, 955 S.W.2d 718, 722
(Ky. 1997)).
St. Clair v. Commonwealth, 455 S.W.3d 869, 894 (Ky. 2015).
The similarities of the alleged alternate perpetrators’ prior acts and the
rape for which Hunter stood trial were superficial at best. One was convicted
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of sodomy of a nineteen-year-old victim while the other was convicted of
viewing a young child’s private areas. Both convictions were more than twenty
years old and no evidence of subsequent bad acts was offered. Additionally,
showing these men were on the sex offender registry does not constitute a prior
bad act. Absolutely no evidence was presented showing their prior sexual
wrongdoings were sufficiently similar to the crime charged herein and nothing
indicated a reasonable probability either of these men raped Stacy. Id. The
trial court correctly determined the proffered evidence was inadmissible.
Finally, Hunter asserts the cumulative effect of the alleged errors so
marred the proceedings as to require reversal. However, having discerned
there to be no individual errors, there can be no cumulative error. See Sanborn
v. Commonwealth, 975 S.W.2d 905, 913 (Ky. 1998) (overruled on other grounds
by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009)).
For the foregoing reasons, the judgment and sentence of the McCracken
Circuit Court is AFFIRMED.
All sitting. All concur. Lambert, J., concurs by separate opinion.
LAMBERT, J., CONCURRING: I concur with the majority but write
separately to further address the directed verdict error issue. As the majority
points out, trial counsel argued that Hunter was entitled to a directed verdict
as to the rape charge as there had been no testimony by the victim or other
witnesses as to penetration.4 However, appellate counsel chose to argue that
4 The jury was also instructed as to First Degree Sexual Abuse.
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the defendant was entitled to a directed verdict based on the incubation period
for gonorrhea. Having reviewed the testimony thoroughly and finding no
evidence of penetration, it is my belief that a much better argument was
abandoned to assert an argument that case law prevents us from even
considering.
COUNSEL FOR APPELLANT:
Robert Chung-Hua Yang
Assistant Public Advocate
COUNSEL FOR APPELLEE:
Daniel Jay Cameron
Attorney General of Kentucky
James Patrick Judge
Assistant Attorney General
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