Anderson v. Commonwealth , 2001 Ky. LEXIS 164 ( 2001 )

STUMBO, Justice.

This appeal is based on a jury verdict from the Wayne Circuit Court convicting John Anderson of two counts of first-degree rape, four counts of first-degree sodomy, and one count of sexual abuse of his stepdaughter, C.S.B. The victim testified that Appellant began having sexual relations with her in 1992 when she was ten years old. Anderson was sentenced to twenty years for each rape charge, twenty years for each count of sodomy, and five years for the sexual abuse charge, all to run concurrently. He appealed to this Court as a matter of right.

Appellant raises four issues on appeal. First, Anderson argues that the trial court erred by not granting Defendant’s motion for a continuance. Second, Appellant asserts that evidence showing the victim’s past sexual experience was erroneously excluded under the rape shield law. Third, Appellant claims he was denied due process of law when the trial court allowed the Commonwealth to amend the indictments at the close of the Commonwealth’s case-in-chief. Last, Anderson argues that the trial court erroneously refused to grant a motion for judgment notwithstanding the verdict, a motion for new trial, and a motion for a new trial based on newly discovered evidence. We take each issue in turn.

I. CONTINUANCE

The facts regarding this argument are somewhat convoluted. On July 1, 1997, the trial judge entered a standard discovery order stating the Commonwealth was to provide discovery materials, including exculpatory evidence, to defense counsel. Several weeks later, the Commonwealth complied with this order. In January of 1998, the defense moved for supplemental discovery based on the prior discovery provided. The defense asked specifically for all hospital records of the victim and for any reports done by Dr. Artie Ann Bates. The defendant discovered that an examination was performed on the victim by Dr. Bates by reading through the CHR records provided by the original discovery order, but no report had been provided with the discovery.

On February 17, 1998, the trial court heard Defendant’s motion, and made a docket entry stating, “Order to be entered directing that records, tapes and doctor’s reports be sent to the court for a review of same. Trial date has previously been set for June 22, 1998 .” No such order, however, was entered. The trial court instead entered an order, on May 22, 1998, directing the Commonwealth to submit to the defense (not to the court for an in-camera review) a list of all places the victim had been hospitalized. On June 12, 1998, the Commonwealth moved to set aside the May 22, 1998 order based on the fact that it did not follow the spirit of the February 17, 1998 docket entry. The Commonwealth asserted defense counsel should have submitted an order to the court requiring the specific agencies where C.S.B. was hospitalized to deliver the records to the court for an in-camera review. In response, defense counsel argued that she had no way of knowing to which agencies to distribute such an order, since the Commonwealth had not revealed where the victim had been hospitalized until the morning of June 12, when the Commonwealth’s Attorney had telephoned her. During the same conversation, the Commonwealth’s Attorney also informed defense counsel that he did not have the report of Dr. Bates in his possession, but would fax it to defense counsel as soon as he received it. He did fax the report to defense counsel — at 5:30 p.m. As this was a Friday, and defense counsel was out of town at a training seminar, she was not able to review the report until Thursday, June 18th.

On June 18th, defense counsel filed a motion for continuance, claiming Dr. Bates’ report was illegible, but from what she could tell it contradicted the findings of Dr. Cunningham, another doctor whose report had been provided with the original discovery. Hence, she argued, her trial strategy had changed. Despite her motion, the trial began on June 22, 1998, and defense counsel orally supplemented her motion for continuance, but the motion was denied. The trial went on as planned, and the Commonwealth presented its entire case-in-chief. Defense counsel received the hospital records at the end of the first day of trial, whereupon it was discovered that the victim had told a nurse that she had engaged in sexual intercourse with someone other than the defendant. Defense counsel renewed her motion for a continuance on the second day of trial, based on the fact that she had just received records that may contain exculpatory evidence. The trial court again denied her motion.

Appellant argues that the trial court abused its discretion by not granting Defendant’s motion for a continuance. Appellant asserts he met all of the factors articulated in Eldred v. Commonwealth, Ky., 906 S.W.2d 694 (1994). Further, Appellant argues that the Commonwealth failed to disclose exculpatory information in a timely manner, and the trial court should have granted a continuance to give defense counsel adequate time to examine the evidence. After a thorough review of the record, we agree.

In Eldred, this Court set out seven factors that should be considered by a trial court when deciding whether to grant a continuance:

(1) The length of delay;

- (2) Whether there have been any previous continuances;

(3) The inconvenience to the litigants, witnesses, counsel, and the court;

(4) Whether the delay is purposeful or caused by the accused;

(5) The availability of competent counsel, if at issue;

(6) The complexity of the case; and

(7) Whether denying the continuance would lead to any identifiable prejudice.

Id. at 699.

In the case at bar, Defendant moved for a 60-day continuance, the same length of time we found to be minimal in Eldred. Id. Further, this case was barely a year old when the trial began, this was the first continuance sought, and a two-month continuance would not have been a substantial inconvenience to any of the parties. The delay here was not purposeful, or caused by the accused. In fact, one may argue the delay was caused by the Commonwealth in not timely turning over evidence to the defense. Further, counsel for the defense stated on the record that it would be difficult to be an effective counsel because she did not receive the discovery at the proper time. In addition, this case was complex because of the suspect discovery practices that occurred, and the defendant clearly suffered prejudice from the denial of the continuance.

We hold the trial court abused its discretion in not allowing the continuance requested by the defendant. Accordingly, the case is remanded for a new trial.

II. RAPE SHIELD LAW

Appellant asserts that evidence showing the victim’s past sexual experience was erroneously excluded under the rape shield law. The victim was examined by a doctor at the request of CHR. Dr. Bates, the examining physician, testified at trial that C.S.B. had a “loose vaginal opening” and concluded that C.S.B. had previously been penetrated, leaving the jury to believe that it must have been the defendant who penetrated her. As stated, infra, defense counsel discovered, at the end of the first day of trial, a report in which the victim told a nurse that she had previously had sex with another boy. The defense tried to cross-examine C.S.B. regarding this, but the Commonwealth objected, citing KRE 412, the rape shield law. KRE 412 holds that evidence of a victim’s sexual experience is not admissible unless it is at issue whether the defendant is the source of an injury:

(a) Reputation or opinion. Notwithstanding any other provision of law, in a criminal prosecution under KRS Chapter 510 or for attempt or conspiracy to commit an offense defined in KRS Chapter 510, or KRS 530.020, reputation or opinion evidence related to the sexual behavior of an alleged victim is not admissible.

(b) Particular acts and other evidence. Notwithstanding any other provision of law, in a criminal prosecution under KRS Chapter 510, or KRS 530.020, or for attempt or conspiracy to commit an offense defined in KRS Chapter 510, evidence of a victim’s past sexual behavior other than reputation or opinion evidence is also not admissible, unless such evidence is admitted in accordance with subdivision (c) and is:

(1) Evidence of past sexual behavior with persons other than the accused, offered by the accused upon the issue of whether the accused was or was not, with respect to the alleged victim, the source of semen or injury;

(2) Evidence of past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior with respect to which an offense is alleged; or

(3) Any other evidence directly pertaining to the offense charged.

The trial judge sustained the Commonwealth’s objection on the grounds that a loose vaginal opening was not an injury under KRE 412(b)(1). Since the adoption of KRE 412, we have not considered this issue, and we do not believe that we have to reach that question here. Under KRS 510.145, Kentucky’s rape shield law prior to the adoption of KRE 412 in 1992, a victim’s prior sexual history was inadmissible, unless it was considered “evidence directly pertaining to the act.” That language is very similar to the exception found in KRE 412(b)(3), “[a]ny other evidence directly pertaining to the offense charged.” In Barnett v. Commonwealth, Ky., 828 S.W.2d 361 (1992), a case decided under KRS 510.145, we held evidence of sexual conduct with someone other than the accused was relevant to show an alternative explanation for a doctor’s findings. We stated:

Upon review of the arguments of counsel, their briefs, and the video transcript of the trial, it is apparent that appellant was convicted based on the child’s testimony and the corroborating medical testimony of the examining physician. Appellant was required to defend himself without the benefit of evidence which could have explained the expert’s physical findings.

Id. at 363.

The situation at bar is very similar. The victim was a child, and unlikely to have any sexual partners. The only partner identified to the jury was Appellant. Therefore, testimony from a doctor that C.S.B. had a “loose vaginal opening” would lead the jury to believe that Appellant must have been the one who penetrated C.S.B. and caused her vaginal opening to be loose. Therefore, under Barnett, it appears that the evidence of the victim’s past sexual encounter is relevant to provide an explanation for why she had a loose vaginal opening, and rebut the inference of guilt. This is directly “pertaining to the offense charged,” as required by KRE 412(b)(3). As a result, we find that the trial court erred in refusing to let defense counsel question C.S.B. about her prior sexual experience. We further note that, on avowal, C.S.B. denied making the statement to the nurse regarding her prior sexual history. If, on remand, she again denies making the statement, we want to make it clear that the report may also be admitted as a prior inconsistent statement under KRE 801A(a)(l), assuming it is properly authenticated per KRE 902 and satisfies the requirements of KRE 803(6).

Having found that this limited statement to a nurse should be allowed, we find it necessary to comment on the breadth of the Rape Shield law. As we stated in Barnett, “[t]he purpose of the Rape Shield Statute ... is to insure that [the victim] does not become the party on trial through the admission of evidence that is neither material nor relevant to the charge made.” Barnett, 828 S.W.2d at 363. We stand by this sound principle, and by no means want to expand the law to admit more evidence than necessary to allow a defendant a fair trial. The exception here is limited to the factual situation of this case. The victim is a child, likely to be chaste, and the Commonwealth introduced medical testimony that she had a “loose vaginal opening caused by penetration.” Therefore, in order for the defendant to rebut the inference that he is the person who caused the “loose vaginal opening,” he must be permitted to introduce testimony that C.S.B. made a statement to a nurse that she had sex with another boy. On this basis we likewise reverse for a new trial.

III. AMENDED INDICTMENTS

Appellant argues that he was prevented from preparing and presenting an adequate defense because the trial court allowed the Commonwealth to amend Wayne County Indictment No. 97-CR-00071 from “on or about 1994” to “on or about 1992,” and Wayne County Indictment Nos. 97-CR-00072, -00073, and-00074 from reading “on or about April 26, 1997” to “on or about April, 1997.” Several times throughout C.S.B.’s testimony, she stated that the abuse by her stepfather began in 1994 “when she was ten years old.” However, C.S.B. was actually ten years old in 1992. The trial court allowed the Commonwealth to amend the indictment to say “on or about 1992.” RCr 6.16 allows an indictment to be amended if there will be no prejudice to the defendant:

The 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. If justice requires, however, the court shall grant the defendant a continuance when such an amendment is permitted.

The amendments to the indictments here did not charge Appellant with any additional or different offenses, it simply changed the dates. The Defendant maintains that these events never occurred, whether in 1992 or 1994, or whether on April 26 or April 17. As such, any sort of alibi defense was not prejudiced by an amendment to an indictment. Further, these amendments were made before Appellant’s case-in-chief. Appellant argues that changing the dates on the indictment “left the defense unprepared.” Appellant’s Brief at 26. If the defendant felt such an amendment was prejudicial, though it is our conclusion that it was not, the defense could have moved to continue the trial in an effort to revamp his defense.

IV. MOTION FOR NEW TRIAL

We are troubled by the events which took place in this case regarding the subpoena of Dr. Robert Cunningham. Dr. Cunningham was served with a subpoena issued at the Commonwealth’s request. During jury selection on the first day of trial, the Commonwealth advised the court that Dr. Cunningham wTas to be called as a witness. It was not until the Commonwealth rested its case that the defense realized Dr. Cunningham was not going to testify.

Further, there is an affidavit from the doctor, claiming he received a phone call Wednesday prior to trial informing him that the defendant had pled guilty and that he was released as a witness. Defendant had, in fact, never pled guilty. Appellant intimates that the Commonwealth released Dr. Cunningham from his subpoena in an intentional effort to sabotage the defendant’s case. The defense was unsuccessful in sei'ving its own subpoena on Dr. Cunningham, and as a result of the Commonwealth releasing him, was unable to present his testimony at trial. The defense counsel received information, after the trial, that the prosecutor admitted to such behavior. Defendant filed a Motion for a New Trial Based on Newly Discovered Evidence and the trial judge heard extensive testimony. During the hearing, Dr. Cunningham testified in direct contradiction to the assistant Commonwealth’s Attorney. As a result, one of them was indubitably lying. Despite this, the trial judge denied the motion, stating that Dr. Cunningham’s testimony would not have changed the verdict, as it was not entirely contradictory to Dr. Bates’ testimony.

At trial, Dr. Bates testified that there was a “reasonable medical probability that [C.S.B.] had been penetrated.” Dr. Cunningham’s report stated that “[tjoday’s exam neither rules in nor rules out previous penetration.” We believe Dr. Cunningham’s testimony could have refuted the findings of Dr. Bates. There is further evidence that C.S.B. gave a different history to Dr. Cunningham, which could have also been used to impeach the alleged victim.

However, after reviewing the hearing on Defendant’s Motion for a New Trial Based on Newly Discovered Evidence, we believe that the trial judge did not abuse his discretion in declining to grant a new trial. It is clear that in order to warrant a new trial, the defendant must make a showing of reasonable certainty that a different verdict would have been reached had the evidence been presented. Carwile v. Commonwealth, Ky.App., 694 S.W.2d 469, 470 (1985). We believe that Dr. Cunningham’s testimony, if it had been presented at trial, may have met this burden. However, in this case, the question we really have to answer is whether this evidence was “newly discovered.” It is clear that the defense had both reports before trial. The Court of Appeals has held, and we agree, that to succeed on a Motion for a New Trial Based on Newly Discovered Evidence, “the defendant must show that the evidence was discovered after the trial.” Id. at 470. It is by defendant’s own admission that we know he had both reports in his possession before trial. The evidence the defense claims to be newly discovered is that the Commonwealth’s Attorney deceitfully kept a witness from testifying. Even if true, this does not fit the definition of newly discovered evidence.

Though we decline to reverse on this issue, because the Commonwealth’s release of a witness is not “newly discovered evidence,” we find it appropriate to comment on the behavior of the Commonwealth’s Attorney in this case. It appears that he knew the defense was relying on the Commonwealth’s subpoena and purposefully did not disclose that he intended to, or had already, released Dr. Cunningham. In its own defense, the Commonwealth argues that the defense cannot rely on the Commonwealth’s subpoenas, and cites Commonwealth v. Calloway, Ky., 737 S.W.2d 691, 693 (1987) for this dubious proposition. In Calloway, however, the witness had not been subpoenaed. The defendant simply relied on the Commonwealth’s Attorney’s promise to make the witness available. Unfortunately, the witness “absquatulated,” id. at 692, and the Commonwealth was unable to produce him. That is quite different from a situation where, as here, the witness was subpoenaed and was available for trial, but was excused sua sponte by the party who had requested the subpoena.

Witnesses are not subpoenaed by parties, but by the circuit court clerk. RCr 7.02(1). Indeed, the subpoena issued for Dr. Cunningham was issued by the Clerk of the Wayne Circuit Court, albeit at the request of the Commonwealth. We believe that once subpoenaed, the witness is answerable to the court and can only be excused by the court. In affirming a contempt order against an absent subpoenaed witness in Otis v. Meade, Ky., 483 S.W.2d 161 (1972), we held that “the subpoena created a continuing obligation on his part to be available as a witness until the case was concluded or until he was dismissed by the court.” Id. at 162 (emphasis added).

Any other view taken would require the issuance of multiple subpoenas to a witness whose testimony is deemed material by more than one party. That means more work for the parties to request subpoenas for witnesses already subpoenaed by other parties, more work for the clerk to issue the extra subpoenas, more work for the sheriff to serve the extra subpoenas, and more inconvenience for the witness who will be interrupted from his own business to be served with multiple subpoenas to appear at one trial. Similar rules apply in civil cases. CR 45.01; CR 45.06.

For the reasons stated above, this case is reversed and remanded to the Wayne Circuit Court for a new trial on all charges in accordance with this opinion.

LAMBERT, C.J.; COOPER and JOHNSTONE, JJ., concur. KELLER, J., dissents by separate opinion, with GRAVES and WINTERSHEIMER, JJ., joining that dissent.