Jeffrey Dougoud v. Commonwealth of Kentucky ( 2022 )

RENDERED: NOVEMBER 4, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1101-MR
JEFFREY DOUGOUD APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT
v. HONORABLE JULIE REINHARDT WARD, JUDGE
ACTION NO. 19-CR-00141
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, MCNEILL, AND K. THOMPSON, JUDGES.
THOMPSON, K., JUDGE: Jeffrey Dougoud appeals from his convictions on two
counts of sexual abuse in the first degree and sentencing for those convictions by
the Campbell Circuit Court following a jury trial. We affirm as the circuit court
properly denied: (1) Dougoud’s motions for a directed verdict as there was
sufficient evidence to establish the two counts of sexual abuse based on sexual
contact by forcible compulsion; (2) Dougoud’s motion to review victim’s
psychotherapy records as Dougoud failed to make the preliminary showing needed
to access them; (3) Dougoud’s motion for a mistrial as mother’s statement that he
had killed before in the line of duty was appropriately addressed through an
admonition. We also reject Dougoud’s argument that cumulative error based on
improper character evidence requires reversal as the circuit court properly
addressed the objections that Dougoud made.
FACTUAL AND LEGAL BACKGROUND
Assuming the truth of the evidence in favor of the Commonwealth,
and drawing all fair and reasonable inferences from it, the facts are as follows. The
victim in this case was C.T. (victim). Victim’s mother and stepfather1 had a home
outside of Alexandria, Kentucky. They had four sons – two each from previous
marriages – who lived there at least some of the time. Victim, who was born in
2001, was the oldest and he lived primarily in that home.
Stepfather had been friends with Dougoud for most of his life.
Mother had met Dougoud before, but they became friends only after he started
visiting the house regularly in 2015 to socialize with the family. Dougoud was
openly gay, and stepfather and mother accepted his sexuality.
1
To protect victim’s privacy, we do not refer to mother and stepfather by name. Mother and
stepfather previously cohabitated and then married after the incidents at issue but before the trial;
to avoid confusion, we consistently refer to mother’s paramour and then husband as stepfather.
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According to stepfather and mother, Dougoud usually carried a
Kimber .380 handgun, holstered to his hip. Stepfather also owned and carried
firearms. Stepfather, Dougoud, and sometimes the boys, would step out to
stepfather’s backyard range to shoot. Victim testified that, on occasions prior to
the events of this case, Dougoud showed him the Kimber he usually carried and
allowed him to fire it at the backyard range; that Dougoud often spoke about being
a military veteran; and that Dougoud had frequently described himself as a “well-
received and important” and “well-qualified” member of the armed forces, “some
form of sniper,” and that he “had killed during his service.”
Victim considered himself to have had a great relationship with
Dougoud prior to the events of this case, and he thought of Dougoud as the
equivalent of his “uncle.” He also liked Dougoud’s pickup truck.
On September 21, 2016, when victim was 15 years old, Dougoud
picked victim up from his home under the pretense of giving him practice driving
the truck. Mother photographed victim in the driver’s seat before the two of them
departed and posted the photograph to her social media account. She testified her
understanding was that victim and Dougoud were going to practice driving in the
parking lot of a local elementary school.
Thereafter, Dougoud and victim alternated driving backroads in
Campbell County. They stopped at victim’s house briefly; then victim drove to a
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convenience store five minutes away where they purchased drinks. Afterward,
Dougoud took over driving, initially heading back toward victim’s house, and
victim believed they were returning to his home until Dougoud passed his street
and began traveling roads unfamiliar to victim.
Victim testified that during the drive his conversation with Dougoud
started out “normal,” but that as Dougoud continued driving, he gradually steered
it toward sexual topics. He questioned victim about his workout routine. He asked
victim about his abdominal muscles and told victim to show them to him. Victim
thought Dougoud’s request was “weird,” but raised his shirt. Dougoud “poked”
his abdominal muscles and said that victim was “doing alright.”
Next, according to victim, Dougoud asked about the appearance of
victim’s pubic hairline, and whether victim trimmed it. Victim testified that at that
point, he was scared. No one had ever asked to see his pubic hairline; he believed
the request was odd; and he told Dougoud, “that’s kind of weird. I don’t really
want to do that.” Dougoud responded, “No, it’s okay. You should really just show
me.” When victim refused again, Dougoud said, forcefully, “No. Show me.”
Victim testified, “at that point, I felt like I had to, or something was
going to happen that I didn’t want to happen.” Victim hooked his thumb inside the
waistband of his pants “and just kind of pushed downward, and you could see the
line, but nothing more. And after that, I pulled my pants back up as fast as I could,
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and just kind of sat there.” Victim testified Dougoud told him his pubic line
“wasn’t that bad,” and that he’d “seen worse,” which made victim feel awkward.
After the two discussed other topics, Dougoud then asked victim
whether he had ever had sex or anything like it. Victim answered that he and his
girlfriend had engaged in sexual activity but had not had sex. Dougoud asked
victim what he was “working with,” and if he was “doing a good enough job.”
Victim did not understand. From there, things progressed:
Victim: And at that point, he was like, “Well, why don’t
you show me what you got? And I was like, “I don’t
think that’s good at all. I really don’t want to do this.”
And he was like, “No. You should really, you should
really show me.” And, um, at that point I was, I was
really scared. I mean, you hear of this stuff happening to
other people, but, uh, I didn’t think it was going to be me.
And, um, he was like, “You should really just, just show
it to me.” Um, I said okay. I felt like I had to. I didn’t
see any other option, it was in a moving car. So I did
what he had told me to do, and took my penis out.
Victim testified Dougoud then “complimented” him on his penis.
Victim testified he felt uncomfortable and did not want to be in the truck with
Dougoud. He further testified:
Victim: At that point, he was getting ready to make a
turn in the road. As all of this was happening, he was
still driving. And, at that point, when he looked away, I
pulled my pants up as fast as I could. And he looked
back over and said, “No. Pull that back out.” And I was
like, “Uh, I don’t really think so.” And he was like, “No,
it’s okay. You should do that.” And, I did.
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Commonwealth: And why did you do that?
Victim: Again, that same forceful, assertive
commentary, I guess you would say. The voice he was
giving to me, I didn’t feel like I had an alternative. I felt
like if I didn’t, then something was going to happen to
me, and I couldn’t get away because I was in a truck,
moving. I couldn’t just jump out. So I did what he asked
again. And at that point, he asked me to touch myself,
um, masturbate, and I did as he agreed, er, I did what he
had asked, I agreed. I did that, and, um, at that point, he,
had had, um, taken his own penis out while he was
driving. And, we were right by a church, um, that we
were passing, and he had, um. I looked out the window
for a split second.
Commonwealth: You said the window, which window
were you looking out of?
Victim: The passenger-side window. And I had looked
out the window, um, and he, when I looked back, I heard
a sound and it was his belt coming undone. You know
how you can hear a belt, it’s metal. I looked back and he
had pulled his pants to about his lower thigh, towards his
knees. And, he had his penis out, and asked me to touch
it. And, I was like, “that’s a little much. I don’t, I don’t
think I want to do that at all.” And, he had said, “Naw,
it’s okay. You should do that.” I was like, “No, I really
don’t want to.” He was like, “No. Do it. Touch it.” As,
overall, I was just scared. Um, and then he said it again,
he had, almost like a, not quite a snap, but like a break of
just like, “No! Do it!” Um, I said “okay.” Um, I just, I
just touched it, and then backed off, just quick. Just
placed and then removed.
Victim then testified about the incident that formed the basis for the
first sexual abuse charge:
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Victim: . . . And then at that point he had grabbed my
hand and placed it around it [Dougoud’s penis] in a, like
this. Like a, what would, a circular motion with my
hand.
Commonwealth: So, you’re saying he placed his hand
onto, over your hand?
Victim: Yes. Over my hand. Like this, and then
wrapped around his penis, and made me perform a
masturbatory motion.
Commonwealth: And when you said he “made you,”
how did he make you?
Victim: Um, my, his hand was around mine, and kind of
did it himself, but my hand was there and in between.
And, um, he had made me do that for a while, and then
he had to make a turn, not like a full turn, but a veer, with
both hands, and I removed my hand as soon as he took it
off.
Victim testified that shortly after he had removed his hand from
Dougoud’s penis, Dougoud drove them to a wooded section of an isolated road and
parked. Victim started to pull his pants up, and Dougoud told, rather than asked,
victim to pull them back down. Victim complied. Dougoud opened the center
armrest and removed a partial roll of paper towels that held a bottle of lubricant in
the core. Dougoud used his own hand to apply the lubricant to his own penis.
Victim then testified about the incident that formed the basis for the
second sexual abuse charge. Dougoud then rubbed lubricant onto victim’s penis.
Victim did not resist. Victim testified that while this was happening:
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Victim: I was just overall scared and anxious, not only
because of, I was worried about what was happening, but
also what would happen if I did try to escape? Or, or just
say anything about it, ever? And that was already going
through my head when it was happening.
Victim testified that immediately after Dougoud rubbed lubricant onto
his penis, Dougoud reached down and produced a handgun (what victim
recognized as Dougoud’s Kimber .380, still in its nylon holster); placed the
holstered gun onto the dashboard, barrel pointed toward victim; and said in a stern
tone, “I’m just going to get this out of the way.” Victim testified this was the first
time he had seen the weapon during their ride, that he regarded the action as an
intimidation tactic, and that he was in fact intimidated by it.
We will not detail the remainder of the incident between victim and
Dougoud in the truck, as what followed formed the basis of the sodomy charge
which is not at issue in this appeal.
Before Dougoud ultimately drove victim home, the following
exchange took place according to the victim.
Victim: He said, “Now, you know not to tell anybody
about this, right?” And I said, “Yeah. I gathered.” And
he said, “You know I’ve killed people before. I’m not
afraid to do it again.” I just kind of nodded.
After the conclusion of the jury trial, Dougoud was convicted of two
counts of sexual abuse in the first degree, one count of sodomy in the third degree,
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and was consequently sentenced to three consecutive terms of five years’
imprisonment, for a total of fifteen years.
ISSUES ON APPEAL
Half of Dougoud’s appeal is devoted to what he believes were the
circuit court’s errors in denying his directed verdict motions regarding his sexual
abuse charges. The latter half of his appeal relates to asserted evidentiary errors.
I. DIRECTED VERDICT ON SEXUAL ABUSE CHARGES
Our standard of review relative to a trial court’s denial of a directed
verdict motion is as follows:
[O]n a motion for directed verdict, the 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 purposes 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.
To defeat a directed verdict motion, the
Commonwealth must only produce more than a mere
scintilla of evidence. On appellate review, the test of a
directed verdict is, 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.
Lynch v. Commonwealth, 642 S.W.3d 647, 658 (Ky. 2022) (internal citations,
brackets, quotation marks, and footnotes omitted).
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The Commonwealth’s theory of its case against Dougoud was that he
was guilty of two counts of sexual abuse in the first degree because, on two
occasions during a truck ride, he subjected victim to sexual contact “by forcible
compulsion.” Kentucky Revised Statutes (KRS) 510.110(1)(a). In his motion for
a directed verdict, Dougoud argued the Commonwealth failed to present sufficient
evidence of the “forcible compulsion” element with respect to both counts.
“Forcible compulsion,” for purposes of sexual abuse in the first
degree, means:
[P]hysical force or threat of physical force, express or
implied, which places a person in fear of immediate
death, physical injury to self or another person, fear of
the immediate kidnap of self or another person, or fear of
any offense under this chapter. Physical resistance on the
part of the victim shall not be necessary to meet this
definition[.]
KRS 510.010(2) (emphasis added).
In other words, there are two types of “forcible compulsion” described
in KRS 510.010(2): (1) “physical force” forcible compulsion; and (2) “threat”
forcible compulsion. The Commonwealth relied on both types to prove its case
against Dougoud, using “physical force” forcible compulsion to secure a
conviction as to the first count of sexual abuse and “threat” forcible compulsion to
secure a conviction on the second count of sexual abuse.
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A. Did the Commonwealth present sufficient evidence to establish
the first count of sexual abuse by “physical force” forcible
compulsion?
As to “physical force” forcible compulsion, the Kentucky Supreme
Court explained in Yates v. Commonwealth, 430 S.W.3d 883 (Ky. 2014), what was
sufficient as follows:
We have found that a defendant used forcible
compulsion to commit sexual abuse by taking the
victim’s hand, without her consent, and placing it on the
area of his pants over his penis. Gibbs v.
Commonwealth, 208 S.W.3d 848 (Ky. 2006), overruled
on other grounds by Padgett v. Commonwealth, 312
S.W.3d 336 (Ky. 2010). This is correct because he
directly compelled her to touch him.
...
While it is true that an act as simple as grabbing
someone’s hand can amount to lack of consent by
forcible compulsion given the right circumstances, not all
touching will provide those circumstances. If that were
the case, then every sex act between otherwise
consenting adults would satisfy the elements of the first-
degree rape statute, because there is always physical
contact between them. Instead, the phrase “forcible
compulsion” requires another factual element, namely,
lack of consent by the victim, in the sense of lack of
voluntariness or permissiveness. This is dictated by the
use of the word “compulsion.”
Id. at 890 (emphasis added). Stated differently, the definition of “physical force”
forcible compulsion, as opposed to “threat” forcible compulsion, requires nothing
more than physical contact without permission of the victim. “[T]he evaluation of
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physical force is based on a victim’s express non-consent, or other involuntariness,
to a defendant’s act. Thus, it may be in one case that a touch of the hand
constitutes forcible compulsion while in another it does not.” Id. at 891.
Regarding the first count of sexual abuse in the first degree of which
Dougoud was convicted, the jury determined:
A. That in [Campbell] county, on or about September
21, 2016, and before the finding of the Indictment herein;
B. The Defendant engaged in sexual contact with
[victim] when the Defendant grabbed [victim’s] hand and
put it on the Defendant’s penis;
AND
C. That the Defendant did so by forcible compulsion.
On appeal, Dougoud argues his “act of placing [victim’s] hand on
[Dougoud’s] penis should not be considered a physical act that compelled or was
sufficient to overcome the [victim’s] own volition under these facts,” further
explaining in his brief:
In this case, according to [victim’s] testimony, [victim]
had allegedly already acted on several of Mr. Dougoud’s
propositions, such as [victim] showing Mr. Dougoud his
penis and [victim] touching Mr. Dougoud’s penis.
[Victim] only alleged that Mr. Dougoud urged him to
participate. [Victim] did not testify that when Mr.
Dougoud placed his hand on his penis, that he hesitated
in any way or told Mr. Dougoud to stop. In fact, the only
time [victim] claimed he told Mr. Dougoud to stop, Mr.
Dougoud complied.
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We disagree. Based upon victim’s testimony, a reasonable jury could
find victim evinced, at the very least, “other involuntariness.” Yates, 430 S.W.3d
at 891. Victim testified that when this offense occurred, he believed he had no
means of escaping from Dougoud, as they were traveling in a moving vehicle in an
unfamiliar area. He rejected each of Dougoud’s “propositions” until Dougoud
changed them from requests or suggestions to intimidating demands. When victim
acquiesced, he attempted to do so minimally: He “pulled [his] pants back up as
fast as [he] could” after showing Dougoud his pubic hairline; he “pulled [his] pants
up as fast as [he] could” to cover his exposed penis “when [Dougoud] looked
away”; and when Dougoud exposed his own penis and asked – then told – victim
to touch it, victim “just touched it, and then backed off, just quick. Just placed and
then removed.”
Victim also testified about what Dougoud “made” him do: Dougoud
“grabbed” victim’s hand and used it as a means of masturbating himself. This was
well beyond the scope of anything victim had minimally acquiesced in; and when
Dougoud released victim’s hand, victim immediately removed his hand from
Dougoud’s penis. Thus, evidence of record supported that victim had no desire to
touch Dougoud’s penis and that, but for Dougoud’s physical compulsion, victim
would not have held and rubbed it.
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As for Dougoud’s assertion that “the only time [victim] claimed he
told Mr. Dougoud to stop, Mr. Dougoud complied,” Dougoud is referring to an
incident a short time later on in the truck when, according to victim, Dougoud put
his left hand underneath victim’s legs, reaching for victim’s anus; victim pushed
his arm away and jumped high enough to strike his head on the cabin ceiling; and
Dougoud snickered and remarked, “I guess you’re not into that.” Whether
Dougoud subsequently did not touch victim’s anus does not, for directed verdict
purposes, somehow negate the evidence that Dougoud forcibly compelled victim to
touch Dougoud’s penis. Therefore, the circuit court committed no error in denying
this facet of Dougoud’s directed verdict motion.
B. Did the Commonwealth present sufficient evidence to establish
the second count of sexual abuse by “threat” forcible
compulsion?
As to “threat” forcible compulsion as defined in KRS 510.010(2),
“the Commonwealth was required to show that Appellant (1) made a threat of
physical force (2) either explicitly or implicitly (3) that created fear (4) of
immediate death or physical injury (5) to the victim or another person.” Yates, 430
S.W.3d at 892. “In determining whether the victim felt threatened to engage in sex
or feared harm from the attacker, a subjective test is applied.” Newcomb v.
Commonwealth, 410 S.W.3d 63, 79 (Ky. 2013) (citation omitted).
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Regarding the second count of sexual abuse in the first degree, the
jury determined:
A. That in [Campbell] county, on or about September
21, 2016, and before the finding of the Indictment herein;
B. The Defendant engaged in sexual contact with
[victim] when the Defendant rubbed [victim’s] penis;
AND
C. That the Defendant did so by forcible compulsion.
Dougoud argues the Commonwealth failed to present evidence of
“threat” forcible compulsion in this instance as set out in Yates. In particular, he
claims a directed verdict was warranted regarding this second offense because, in
relation to it, the Commonwealth failed to adduce evidence that he made any threat
of physical force.
We disagree with Dougoud’s contention that no evidence was
produced supporting, at the very least, that he implicitly threatened victim with
physical force that caused victim to fear immediate death or physical injury. A
reasonable jury could infer, based upon the circumstances that preceded
Dougoud’s rubbing lubricant on victim’s penis, that victim honestly believed
Dougoud would harm him if he resisted. Victim assumed, prior to this incident,
that Dougoud had killed in the line of duty; Dougoud had told him so. Victim had
no reason to doubt Dougoud was able to kill again, as victim knew Dougoud often
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carried a pistol, had witnessed Dougoud’s skill in using firearms, and because
Dougoud had told victim that Dougoud had received specialized military training.
From victim’s testimony, it could be inferred that Dougoud’s skill with firearms,
military experience, and apparent history of killing was, by Dougoud’s design, a
constant undercurrent throughout this incident and a standing, implicit threat of
harm that commanded victim’s obedience.
In the moments before this second offense, Dougoud had become an
unpredictable stranger to victim; his demeanor toward victim had suddenly shifted,
for the first time, from that of a trusted family friend, to that of someone willing to
demand and, despite victim’s reluctance, ultimately compel sexual contact from
him. Moreover, Dougoud had taken measures to isolate victim, who did not
believe he could escape the situation; and had chosen a secluded location to
perform the act, demonstrating he clearly did not wish to be caught.2 Sufficient
evidence supported that victim had a well-founded belief that he would suffer
immediate harm if he resisted Dougoud. Accordingly, the circuit court also
properly denied this aspect of Dougoud’s directed verdict motion.
2
We do not consider victim’s testimony about the threats that Dougoud made after he rubbed
lubricant on the victim’s penis (Dougoud’s act of placing the handgun on the dashboard pointing
at victim “to get this out of the way” or the warning as Dougoud drove victim home that victim
should not tell anyone because Dougoud had “killed people before” and was “not afraid to do it
again.”). These later threats could not inform victim’s fear at the time of this second incident of
sexual abuse. However they are consistent with victim having an implicit understanding of what
Dougoud could do to victim, should Dougoud chose to do so, which Dougoud confirmed after-
the-fact through his threatening action and words.
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II. EVIDENTIARY ISSUES
Dougoud also asserts he is entitled to a new trial because, in his view,
the circuit court made several erroneous evidentiary rulings. His arguments are
addressed below.
A. Access to Victim’s Psychotherapy Records
On February 2, 2020, the day before trial, Dougoud moved the circuit
court to order the production of victim’s psychological counseling records, and to
conduct an in camera review of those records to ascertain whether they contained
exculpatory evidence. In his motion, in relevant part, he explained:
Mr. Dougoud discovered that eight (8) months after this
alleged incident, there was a family court hearing
regarding [victim] in the Campbell Family Court, 02-CI-
1604. The matter revolved around [victim], and his
desire to live with his dad. In anticipation of potential
impeachment evidence, Mr. Dougoud ordered a certified
copy of the hearing and some of the documents filed in
regards to the hearing. Mr. Dougoud received said
documents from the Campbell County Circuit Clerk on
January 28, 2020.
In preparation of trial, on February 1, 2020 Mr. Dougoud
discovered, in a Motion for Contempt, that [victim] had
been receiving counseling with Viewpoint Psychological
Services. This means, eight months after the alleged
sexual assault, [victim] was working in counseling, with
a licensed therapist, and that information was never
provided to Mr. Dougoud in discovery.
...
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Applying the appropriate standard to the above styled
case, it is clear that Mr. Dougoud is entitled to an in
camera review of the psychiatric records of [victim], held
by Viewpoint Psychological Services. There is clearly a
reasonable belief they contain exculpatory evidence.
[Victim] has made statements that he didn’t want to live
with him [sic] mom because he “feared Dougoud.” Yet,
while in counseling, it appears this was never disclosed
as a basis for why he didn’t want to live with his mom.
According to [victim’s] dad, [victim] was stating his
mom kept “a dirty home, engages [him] in adult
discussions, and often embarrasses him by being sexually
provocative on social media available to friends.”
Furthermore, this issue is confirmed by [victim] in his
Children’s Advocacy Interview that he did not disclose a
sexual assault as a basis for his issues in 2017 to his
therapist. [Victim] was asked if he had ever told anyone
these allegations. He responded he told three girls, in the
back of a van, at the Waffle house. He never said he told
a therapist. In fact, he never disclosed he had ever
received therapy.
The circuit court considered Dougoud’s motion on the morning of the
first day of trial; and again on February 4, 2020, after Dougoud renewed his
motion. Denying it, the circuit court explained that any evidence derived from
victim’s counseling records for the purposes expressed in Dougoud’s motion
would be either irrelevant or cumulative. In that vein, the circuit court noted it was
unnecessary to search victim’s 2017 counseling records to ascertain whether victim
had informed his therapist about his sexual encounter with and resulting fear of
Dougoud because, as Dougoud noted in his motion, victim had already indicated
in his CAC interview that, prior to February 2, 2019, he had never informed any
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adult of his sexual encounter with and resulting fear of Dougoud. Furthermore, it
explained that if victim ultimately testified that his fear of Dougoud had caused
him to want to stop living with his mother, Dougoud did not need victim’s
counseling records for impeachment purposes. Rather, Dougoud could just as
effectively resort to the family court’s record of victim’s custody proceedings, and
what it indicated were the other reasons victim had expressed in that separate
matter for not wanting to live with his mother.
Dougoud appeals the circuit court’s ruling. Upon review, we affirm.
The Kentucky Supreme Court recently reviewed the law on this subject,
explaining:
[I]n Commonwealth v. Barroso, this Court held that “[i]f
the psychotherapy records of a crucial prosecution
witness contain evidence probative of the witness’s
ability to recall, comprehend, and accurately relate the
subject matter of the testimony, the defendant’s right to
compulsory process must prevail over the witness’s
psychotherapist-patient privilege.” 122 S.W.3d 554, 563
(Ky. 2003). The defendant must make a preliminary
showing “sufficient to establish a reasonable belief that
the records contain exculpatory evidence” before the
records are subject to an in camera review by the trial
court. Id. at 564. Exculpatory evidence has been
described as “evidence favorable to the accused and
material to guilt or punishment, including impeachment
evidence.” Id. Evidence is material “only if there is a
reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding
would have been different.” United States v. Bagley, 473
U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).
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If the defendant makes this preliminary showing,
then “the witness’s psychotherapy records are subject to
production for an in camera inspection to determine
whether the records contain exculpatory evidence,
including evidence relevant to the witness’s credibility.”
Barroso, 122 S.W.3d at 563.
Smith v. Commonwealth, 636 S.W.3d 421, 438-39 (Ky. 2021).
Evidentiary rulings are reviewed under the abuse of discretion
standard. Kerr v. Commonwealth, 400 S.W.3d 250, 261 (Ky. 2013). Here, no
abuse occurred.3 As the circuit court’s ruling tends to indicate, Dougoud failed to
make the “preliminary showing” that victim’s counseling records contained
evidence that, within reasonable probability, would have favorably affected the
outcome of his trial had they been produced. If the records confirmed that victim
had not discussed his sexual encounter with and resulting fear of Dougoud, his
records would have been cumulative evidence. If the records demonstrated victim
had discussed those issues with his counselor in 2017, they would have
undermined, rather than helped, Dougoud’s defense. And, to the extent victim’s
records had the impeachment value expressed in Dougoud’s motion, the circuit
court also did not cause Dougoud any undue prejudice by denying him access. The
record of victim’s custody proceedings – which the circuit court permitted
3
Dougoud also argues that if the circuit court abused its discretion in this regard, it should have
also granted his motion to continue his trial for purposes of conducting an in camera inspection
of victim’s counseling records. Considering that the circuit court did not abuse its discretion in
this regard, this issue is moot.
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Dougoud to utilize at trial – had the same value. Additionally, during trial,
Dougoud ultimately chose not to ask victim why victim wanted to move from his
mother’s house to his father’s house.
B. Mother’s Statement Regarding Dougoud’s Comment that he
had Killed People in the Line of Duty
As discussed, victim testified that on occasions prior to his incident
with Dougoud in the truck, Dougoud had described himself as a “well-received and
important” and “well-qualified” member of the armed forces; “some form of
sniper”; and that Dougoud had told him he “had killed during his service.” Victim
also testified he waited two-and-a-half years to tell an adult about the incident
because Dougoud had told him after their encounter not to tell anyone about it, and
“You know, I’ve killed people before. I’m not afraid to do it again.”
On appeal, Dougoud does not contest the relevance or admissibility of
that testimony. However, he asserts the circuit court erred by denying his motion
for a mistrial in relation to the following emphasized testimony that another
witness, mother, provided during her direct examination by the Commonwealth:
Commonwealth: So [Dougoud] told you he was a sniper
in the military?
Mother: Yes.
Commonwealth: Is that something that people in your
family are aware of, your children?
Mother: Yes.
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Commonwealth: And why would they be aware of that?
Mother: He was very proud of it.
Commonwealth: Okay. And, when he talked about
being a sniper, um, did he tell you any more detail, or
what that entailed?
Mother: He said that he had killed people while
overseas.
Mother testified before victim testified. Dougoud objected to the
emphasized testimony based upon Kentucky Rules of Evidence (KRE) 404,
claiming it improperly bolstered what he anticipated victim would later relate
about how Dougoud had told victim that Dougoud had killed people in the line of
duty while serving overseas. He asserted mother’s statement qualified as
inadmissible evidence of “other crimes, wrongs, or acts” per subsection (b) of the
rule; and that he had not been provided adequate notice of mother’s testimony
pursuant to KRE 404(c).
The circuit court disagreed with Dougoud’s contention that mother’s
testimony was prejudicial enough to warrant a mistrial. From the bench, it
explained that any prejudice arising from the notion that Dougoud may have killed
before was limited by the fact that, from all indications, he had only done so within
the proper scope of his military service; and that it is commonly understood that
military service – particularly military service as a sniper – can require the use of
lethal force as an incident of duty. Nevertheless, upon Dougoud’s request, the
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circuit court did instruct the jury to disregard mother’s testimony about whether he
had any occasion to use lethal force while he was in the military.
As indicated, Dougoud now asserts the circuit court erred by denying
his motion for a mistrial. We disagree. Our standard for reviewing a trial court’s
denial of a mistrial request is as follows:
The decision to declare a mistrial is properly within the
sound discretion of the trial court. A mistrial is an
extreme remedy and should be resorted to only when
there appears in the record a manifest necessity for such
an action or an urgent or real necessity. A manifest
necessity can be understood as to be an urgent need for a
new trial in consideration of the totality of the
circumstances. As such, a ruling declaring a mistrial will
not be disturbed absent an abuse of discretion by the trial
court.
Hammond v. Commonwealth, 504 S.W.3d 44, 51 (Ky. 2016) (internal quotation
marks and citations omitted).
Here, we agree with the circuit court’s assessment that Dougoud’s
claim that he had killed while fulfilling his military duties is qualitatively different
from any claim that he had committed a prior criminal act or other wrong. Apart
from that,
[T]he jury is presumed to follow an admonition to
disregard evidence and the admonition thus cures any
error. Such presumption can be overcome by a showing
either that there is an (1) overwhelming probability that
the jury will be unable to follow the court’s admonition
and there is a strong likelihood that the effect of the
inadmissible evidence would be devastating to the
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defendant, or (2) the question asked lacks any factual
basis and was highly inflammatory.
Carson v. Commonwealth, 621 S.W.3d 443, 450 (Ky. 2021) (internal quotation,
citations, and footnotes omitted).
Relative to mother’s offending testimony, Dougoud does not argue –
nor do we find – it was overwhelmingly probable that the jury was unable to
follow the circuit court’s admonition, or that the Commonwealth’s question lacked
any factual basis. Therefore, we find no error in this respect.
C. Cumulative Error Regarding Improper Character Evidence
Dougoud also argues that mother’s offending testimony, taken in
conjunction with three other purported evidentiary errors roughly following the
same theme, amounted to cumulative reversible error – a point he did not raise
below as a basis for a mistrial.
“[M]ultiple errors, although harmless individually, may be deemed
reversible if their cumulative effect is to render the trial fundamentally unfair. We
have found cumulative error only where the individual errors were themselves
substantial, bordering, at least, on the prejudicial.” Brown v. Commonwealth, 313
S.W.3d 577, 631 (Ky. 2010) (citation omitted). “If the errors have not individually
raised any real question of prejudice, then cumulative error is not implicated.”
Elery v. Commonwealth, 368 S.W.3d 78, 100 (Ky. 2012) (internal quotation marks
and citation omitted). “Where . . . none of the errors individually raised any real
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question of prejudice, we have declined to hold that the absence of prejudice plus
the absence of prejudice somehow adds up to prejudice.” Brown, 313 S.W.3d at
631 (citation omitted).
As to the three other purported evidentiary errors, the first two involve
statements made by the Commonwealth during its opening and closing arguments.
Minutes before the Commonwealth made the statement during its opening
arguments which Dougoud found objectionable, the circuit court cautioned the jury
that:
Opening statements are really like a roadmap. It’s an
opportunity for the attorneys to sort of tell you what they
think the evidence is going to be presented to you, but
their words, as [the Commonwealth] mentioned in her
voir dire of you is not evidence. The attorneys at the end
of the case will give you closing arguments. They try to
sum up the evidence that they think that you’ve heard,
and what it means, they think, it means to you or to them.
But that doesn’t mean anything, meaning it’s just a
roadmap and a closing. You all are ultimately the
determinators to find out what the facts are, and what you
believe those facts mean, based on the evidence and the
law that I’m going to give you.
In its opening argument, the Commonwealth told the jury, “What you
discover as you listen to the evidence is that the defendant, Jeffrey Dougoud, was
known somewhat as being a badass.” Dougoud objected, arguing he had received
no notice of “bad acts” evidence pursuant to KRE 404(c), and asked the circuit
court to instruct the jury to disregard the Commonwealth’s statement. The circuit
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court granted his request and instructed: “Ladies and gentlemen of the jury, in
terms of the defendant being a ‘badass,’ I’m going to ask you to strike that from
your minds at this point in time.” The Commonwealth thereafter proceeded,
without objection, by stating: “What you’re going to hear is that [Dougoud’s]
former military, they [i.e., his friends] thought he was in special forces, that he
carried a weapon all the time, that he could hold his own, so he’s not someone you
messed around with.”
Regarding the objectionable statement in its closing argument, prior to
when the Commonwealth made it, the circuit court once again cautioned the jury
that the arguments of counsel were not to be considered evidence. Dougoud
objected to the emphasized language given in the following context, below:
So, what you heard from [victim] on the stand, when he
described the various acts, the various steps this
defendant engaged in, before he forced him to perform
on him, before he forced him to do anything in this case,
I want you to look back at it, at what he told you. How
did he start with it? He talked about sexual experiences.
Here’s a 49-year-old man, trusted family friend, former
military, has killed before –
At the ensuing bench conference, Dougoud’s counsel explained that
whether Dougoud actually killed during his military service was never a fact in
evidence; victim merely testified at trial that Dougoud told him he had done so.
The circuit court sustained Dougoud’s objection, and the Commonwealth
accordingly qualified what it had said, continuing its closing arguments by stating,
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without objection: “When [victim] told you, that’s what he knew about him.
That’s what he knew about Jeffrey Dougoud, he was a tough guy, he’d been in the
military, and he had killed.”
With respect to the third purported evidentiary error, it occurred when
the Commonwealth played a portion of a controlled call that authorities in the
Campbell County Police Department had stepfather make to Dougoud in February
2019, in an effort to have Dougoud incriminate himself. Specifically, while
stepfather was speaking to Dougoud at the start of the call, Dougoud stated: “Here
I am, this big tough guy, getting into fights and drinking, this that and the other.”
(Emphasis added.)
Dougoud objected. At the ensuing bench conference, he argued that
his own statement about “getting into fights” was improper KRE 404(b) evidence.
The circuit court sustained his objection. Moreover, it granted the only remedy
Dougoud requested, which was a recess to review the remainder of the controlled
call tape to ensure it included nothing more about his penchant for fighting.
We disagree that these three purported errors, taken collectively with
what has previously been discussed, amounted to cumulative error warranting a
mistrial. We begin with the first two. Opening and closing arguments are just that
– arguments. Slaughter v. Commonwealth, 744 S.W.2d 407, 412 (Ky. 1987).
Because opening and closing arguments are not evidence, the prosecutor’s
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comments during those arguments fall outside the scope of KRE 404(b), which by
its plain terms prohibits the use of evidence of other crimes, wrongs, or acts to
prove a propensity to commit some specific act. Here, the circuit court prefaced
both the opening and closing argument segments of the trial by explaining to the
jury that arguments of counsel were not evidence, and that they were not to be
taken as such.
Regarding the Commonwealth’s statement during opening arguments
regarding Dougoud being “a badass,” the prosecutor explained during her later
comments, without objection, that the evidence would reflect Dougoud was
formerly in the military; that his friends believed he was in special forces and was
a sniper; that he frequently carried a sidearm and was familiar with firearms; that
he could “hold his own”; and that “he’s not someone you messed around with.”
To the extent that the prosecutor’s characterization of Dougoud as “a badass” was
an expression of what she believed those evidentiary details reflected, a prosecutor
may generally state what he or she believes from the evidence. “It is
unquestionably the rule in Kentucky that counsel has wide latitude while making
opening or closing statements.” Brewer v. Commonwealth, 206 S.W.3d 343, 350
(Ky. 2006). “A prosecutor may comment on tactics, may comment on evidence,
and may comment as to the falsity of a defense position.” Slaughter, 744 S.W.2d
at 412. Apart from that, the circuit court also admonished the jury to disregard the
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prosecutor’s “badass” comment. And, as before, Dougoud makes no argument that
the circuit court’s admonition was insufficient; or that the jury was unable to
follow the admonition due to the applicability of either of the two exceptions
discussed in Carson, 621 S.W.3d at 450.
Regarding the Commonwealth’s statement during closing arguments
that Dougoud had “killed before,” the Commonwealth had already prefaced that
detail – prior to Dougoud’s objection – by stating it derived from “what you heard
from [victim] on the stand.” Nevertheless, following Dougoud’s objection, the
circuit court granted Dougoud all the relief he requested, directing the prosecutor
to provide the jury with further clarification. Afterward, the Commonwealth once
again explained that whether Dougoud had killed was not a proven fact, and that
victim’s understanding on that point solely derived from what he had testified
Dougoud had told him. In short, the Commonwealth followed the circuit court’s
directive to Dougoud’s apparent satisfaction, and it was abundantly clear that
victim’s testimony was the source of any valid evidence indicating Dougoud had
killed in the line of duty. We see no real question of undue prejudice.
Lastly, with respect to Dougoud’s recorded statement about “getting
into fights,” we cannot say that, taken in isolation, this brief statement raised any
real question of prejudice; indeed, Dougoud did not request any admonition in this
respect, and he was apparently satisfied when the circuit court granted him all the
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relief he requested due to the statement. In sum, none of these purported
individual errors themselves or cumulatively were substantial and Dougoud
received all the relief to which he was entitled through admonishments and
clarifications. Thus, reversal is not warranted due to cumulative error.
CONCLUSION
We have addressed the breadth of Dougoud’s appellate arguments.
Finding no error, we affirm his conviction and sentence by the Campbell Circuit
Court.
DIXON AND MCNEILL, JUDGES, CONCUR IN RESULT ONLY.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Steven Nathan Goens Daniel Cameron
Assistant Public Advocate Attorney General of Kentucky
Frankfort, Kentucky
James Havey
Assistant Attorney General
Frankfort, Kentucky
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