DocketNumber： No. 94-SC-818-MR
Judges： Cooper, Graves, Johnstone, Joining, Lambert, Only, Stephens, Stumbo, That, Wintersheimer
Filed Date： 11/20/1997
Status： Precedential
Modified Date： 10/19/2024
Appellant was convicted in the Pulaski Circuit Court of three counts of first-degree sodomy and two counts of first-degree sexual abuse. He was sentenced to confinement for twenty years on each of the sodomy convictions and confinement for one year on each of the sexual abuse convictions, all to run concurrently each with the others. He appeals to this court as a matter of right. Ky. Const, § 110(2)(b).
The indictment charged Appellant with four counts of first-degree sodomy and ten counts of first-degree sexual abuse of J.V., a minor child less than twelve years of age. In addition, he was charged with three counts of first-degree sexual abuse of N.P., B.C., and K.G., also children less than twelve years of age. He was acquitted of all counts except three counts of first-degree sodomy of J.V. and two counts of first-degree sexual abuse of J.V.
I. SUFFICIENCY OF THE EVIDENCE
J.V. testified that she was bom on October 22,1983 and that she was ten years old when the trial was held in May-June, 1994. The indictment charged offenses occurring in September and October 1992. At that time, J.V. was enrolled at Bev’s Day Care Center, which was owned and operated by Beverly Mitchell, Appellant’s daughter. Appellant lived two houses from the day care center and, although he was not employed by the center, he ran errands for Mitchell and transported children in his van. J.V. testified that the first incident of sexual abuse occurred after Appellant had taken all of the other children home in the van. He then drove J.V. to the fairgrounds, where he subjected her to acts of sexual contact and oral sodomy. The second occasion occurred under similar circumstances at Trinity Springs, where Appellant again subjected J.V. to sexual contact and oral sodomy. The third occasion occurred again at the fairgrounds, where J.V. claimed Appellant subjected her to sexual contact and two separate acts of oral sodomy. J.V. testified to other acts of sexual contact which are not relevant to this appeal, since Appellant was found not guilty of those charges.
Appellant claims the evidence was insufficient to prove his guilt because J.V. failed to testify to specific dates and times when the acts of sexual abuse occurred. In a felony case, the failure to prove the specific date of
II. TESTIMONY OF J.V.
On the recommendation of J.V.’s treating psychologist, J.V. was permitted to testify from the circuit court library. Her testimony was transmitted by closed circuit television to a monitor in the courtroom where it was viewed by the jury and courtroom spectators. Appellant was permitted to remain in the library where he could observe J.V. “face to face” during her testimony. Ky. Const., § 11. The trial judge explained his decision as follows:
The Court sympathizes with the need to permit young children to testify in a nonthreatening environment. The Court will allow the Commonwealth to present the testimony of the children through closed circuit television transmission from the circuit court library into the circuit courtroom before the jury. Based on the Court’s experience with the competency hearing, the Court finds that the children are capable of testifying in the presence of the Defendant. The Court therefore shall allow the Defendant to be present in the library when each child testifies so that his rights under the confrontation clause may be respected. The Defendant may choose, at his option, to remain in the courtroom in the presence of the jury while the children testify.
The procedure used in this case was much more favorable to Appellant than that authorized by KRS 421.350(3) and approved in Commonwealth v. Willis, Ky., 716 S.W.2d 224 (1986). Since Appellant was permitted to remain in the same room with the witness during her testimony, there was no implication of the confrontation clauses of the Sixth Amendment of the United States Constitution or Section 11 of our Constitution. Appellant cites no authority for the proposition that a witness and the jury must be in the same room during the witness’s testimony. Modern technology permits the procedure allowed in this case without impairing the jury’s ability to observe the witness’s demeanor during her testimony. The trial judge did not abuse his discretion in permitting this procedure and no violation of Appellant’s constitutional rights resulted.
Appellant also claims it was error to permit J.V. to use anatomically detailed dolls while describing the acts perpetrated against her by Appellant. In Souder v. Commonwealth, Ky., 719 S.W.2d 730 (1986), we held that a social worker could not describe to the jury the child victim’s out-of-court manipu
III. TESTIMONY OF J.V.’S MOTHER
Appellant asserts it was error to permit J.V.’s mother to testify that when she told J.V. on November 4, 1994, that Appellant would bring her home from the day care center on the following day, J.V. responded, “Please don’t make me ride with him.” This statement is not hearsay, since it does not purport to prove the truth of the matter asserted. What it tends to prove is that J.V. was then in fear of Appellant. Thus, the statement was admissible as a nonhearsay utterance reflecting the state of mind of the declarant. L.K.M. v. Department for Human Resources, Ky.App., 621 S.W.2d 38 (1981); R. Lawson, The Kentucky Evidence Law Handbook § 8.05, pp. 364-65 (3rd ed., Michie, 1993).
Appellant also claims error with respect to a second statement of J.V.’s mother, which she made during the prosecutor’s attempt to elicit proof that J.V. was referred to William House for the purpose of treatment and not merely for evaluation. The colloquy was as follows:
Q. Okay—let me back up here. I am not sure that I am phrasing the question correctly. Did you learn—did someone tell you that [J.V.] had been sexually abused?
[Objection.]
[Overruled.]
A. No, [J.V.] was the one that told me that.
Q. Okay—thank you.
A. It was her.
Q. And, as a result of allegations for things that you had heard, did, at some point, you obtain some type of counseling for [J.V.]?
A. Yes, I did.
Q. Okay—with whom?
A. With William House.
In analyzing whether an “out-of-court” statement is inadmissible hearsay, the “ultimate inquiry is ... whether the statement has a relevancy that exists without regard to the truth of the assertions contained in the statement.” Lawson, supra, § 8.05, p. 368. In Sanborn v. Commonwealth, Ky., 754 S.W.2d 534 (1988), we said with respect to information furnished to police officers that:
The rule is that a police officer may testify about information furnished to him only where it tends to explain the action that was taken by the police officer as a result of this information and the taking of that action is an issue in the case. Such information is then admissible, not to prove the facts told to the police officer, but only to prove why the police officer then acted as he did. It is admissible only if there is an issue about the police officer’s action.
Id. at 541; see also Ruppee v. Commonwealth, Ky., 821 S.W.2d 484, 485 (1991). Whether J.V. was referred to Mr. House for treatment or evaluation and whether the referral was at the behest of J.V.’s mother or the police were both contested issues in this case. Thus, J.V.’s mother’s explanation of why she referred J.V. to Mr. House was relevant without regard to the truthfulness of J.V.’s assertion that she had been abused. We do not regard this form of nonhearsay as confined solely to the testimony of police officers.
Furthermore, J.V.’s statement to her mother did not identify Appellant as the perpetrator of the abuse. J.V., herself, testified at great length and detail concerning the abuse perpetrated against her by Appellant, and the jury heard Appellant’s recorded confession to the acts of sodomy and sexual abuse of which he was convicted. Thus, even if there had been a hearsay aspect to J.V.’s out-of-court statement, any error in its ad
IV. TESTIMONY OF WILLIAM HOUSE
William R. House is a certified psychological counselor and cognitive therapist. He has a masters degree in counseling and eighteen years experience in the field. He testified that the purpose of his counseling of J.V. was to address any emotional problems she may have been suffering as a result of sexual abuse. Appellant claims it was error to permit House to repeat statements made to him by J.V. describing the sexual abuse and identifying Appellant as the perpetrator. The trial judge made a KRE 104(a) finding that the statements were made for the purpose of treatment or diagnosis related to the cause or external source of her symptoms. KRE 803(4). In Edwards v. Commonwealth, Ky., 833 S.W.2d 842 (1992), we held that statements made by a child sexual abuse victim to a clinical psychologist for the purpose of psychological therapy fell within the parameters of KRE 803(4). We also held that statements of the identity of the perpetrator are generally admissible if offered by one treating the child for psychological injuries and the abuser was a household member. Id. at 844, citing United States v. Renville, 779 F.2d 430 (8th Cir.1985). Although Appellant was not a member of J.V.’s household, he was in a position of special trust, so that his continued access to J.V. could exacerbate the psychological conditions for which she was being treated.
Appellant also asserts that House erroneously was permitted to vouch for the credibility of J.V. House testified that he was initially concerned that J.V. might have been “coached.” Subsequently, however, he found J.V.’s responses to be “consistent” and supported by “internal logic,” and that such alleviated his initial concerns. He concluded his direct testimony by stating that “I felt that I trusted [J.V.]—or the veracity of the statements and
Generally, a witness may not vouch for the truthfulness of another witness. Hall v. Commonwealth, Ky., 862 S.W.2d 321, 323 (1993); Hellstrom v. Commonwealth, supra, at 614 (1992). However, there was no contemporaneous objection to any of these statements. R.Cr. 9.22; Commonwealth v. Preece, Ky., 844 S.W.2d 385 (1992), cert. denied, 510 U.S. 816, 114 S.Ct. 66, 126 L.Ed.2d 36 (1993). At one point during House’s examination, defense counsel argued, “He cannot—that is a comment on somebody’s truthfulness.” However, this objection was made not in response to the testimony in which House vouched for the truthfulness of J.V.’s statements, which occurred four pages prior to this objection and six pages thereafter in the transcript of evidence, but during an objection to a question which asked House to relate “what statements [J.V.] made,' concerning those difficulties she was experiencing.” If a party does not timely inform the trial judge of the alleged error and request the relief to which he considers himself entitled, the issue is not preserved for appellate review. West v. Commonwealth, Ky., 780 S.W.2d 600, 602 (1989). Nor do we believe that the admission of this evidence constituted “manifest injustice” so as to rise to the level of palpable error. R.Cr. 10.26; Schambon v. Commonwealth, Ky., 821 S.W.2d 804 (1991); Jackson v. Commonwealth, Ky.App., 717 S.W.2d 511 (1986).
Finally, Appellant asserts error in the trial judge’s refusal to require House to produce his office records regarding his treatment of J.V. The records were not subpoenaed and House did not bring them to trial, but testified from memory. He informed the trial judge that his records did not contain any statements of J.V. and the judge accepted his word. Contrary to Appellant’s assertion, Anderson v. Commonwealth, Ky., 864 S.W.2d 909 (1993) does not require production of these records. That case dealt only with production of a prior statement of a witness who testified at trial. Since House did not rely on his records in giving his testimony, the trial judge did not abuse his discretion in declining to order him to re
V. TESTIMONY OF DR. LARRY NUNEMAKER
Dr. Nunemaker is a licensed obstetrician/gynecologist. He testified that his examination of J.V. revealed some hypertrophy and tearing in the vaginal area as well as some stretching and partial destruction of the hymen. He testified over objection that “those findings were compatible with [J.V.’s] history that she had given me” and with “something being inserted in there, and, trying to stretch it.” Appellant claims that the admission of this testimony is precluded by our holdings in Brown v. Commonwealth, Ky., 812 S.W.2d 502 (1991) and Alexander v. Commonwealth, Ky., 862 S.W.2d 856 (1993), and that the facts in Alexander are indistinguishable.
Qualified medical experts traditionally have been permitted to testify to the cause of a physical condition. E.g., Hellstrom, v. Commonwealth, supra, at 617; Pevlor v. Commonwealth, Ky., 638 S.W.2d 272 (1982), cert. denied, 459 U.S. 1149, 103 S.Ct. 794, 74 L.Ed.2d 998 (1983); Hicks’ Adm’x v. Harlan Hospital, 231 Ky. 60, 21 S.W.2d 125, 126 (1929). “A sufficiently qualified witness may testify as to whether certain detailed occurrences would be a natural, sufficient, probable, or possible cause of a certain physical result, or of death.” 32 C.J.S. Evidence, § 644. It was not until Brown v. Commonwealth, supra, that this virtually universal rule was called into question in this jurisdiction. There, convictions of rape and incest of a child were reversed partially because a qualified medical doctor was permitted to testify to the approximate age of a cervical tear observed during her examination of the victim. Even though the doctor did not purport to state what caused the tear, her testimony was characterized as “opinion testimony as to the ultimate issue.” Id. at 504. In Alexander v. Commonwealth, supra, convictions of rape and sodomy of a child were reversed partially because a qualified medical doctor was permitted to testify that a small tear of the victim’s hymenal ring was “consistent” with the medical history of vaginal intercourse with an adult. Brown v. Commonwealth, supra, was cited as authority for holding that admission of this testimony was reversible error. Alexander, supra, at 862. In Turner v. Commonwealth, Ky., 914 S.W.2d 343 (1996), we held that it was not error to permit two doctors to testify that their physical findings were “not inconsistent” with the child victim’s history of sexual abuse. (In retrospect, we are unable to discern a distinction between “consistent” and “not inconsistent.”) While Turner represented a modest retreat from Brown and Alexander, it did not overrule them.
Brown and Alexander are based on a false premise that any opinion which makes the existence of the ultimate fact more probable than not is an “opinion as to the ultimate issue” and, for that reason, inadmissible. In fact, the definition of relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” KRE 401. If Dr. Nunemaker had testified that he believed Appellant to be guilty, such would have been an opinion as to the ultimate issue. However, an opinion that a result is consistent with a factual scenario is not an opinion that the scenario occurred.
The real question should not be whether the expert has rendered an opinion as to the ultimate issue, but whether the opinion “will assist the trier of fact to understand the evidence or to determine a fact in issue.” KRE 702. Generally, expert opinion testimony is admitted when the issue upon which the evidence is offered is one of science and skill, Greer’s Adm’r v. Harrell’s Adm’r, 306 Ky. 209, 206 S.W.2d 943 (1947), and when the subject matter is outside the common knowledge of jurors. O’Connor & Raque Co. v. Bill, Ky., 474 S.W.2d 344 (1971). Presumably, jurors do not need assistance in the form of an expert’s opinion that the defen
Until Hampton v. Commonwealth, supra, we followed the majority rule as expressed in the Federal Rules of Evidence, FRE 704, and the Uniform Rules of Evidence (U.L.A.), Rule 704, that testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. Department of Highways v. Widner, Ky., 388 S.W.2d 583 (1965); Lawson, supra, § 6.25. In Hampton, another child sexual abuse case, we upheld a trial judge’s decision to exclude the opinion of a clinical social worker that the defendant’s psychological development by history indicated that the twelve-year-old victim was too young to be attractive to him. . The trial judge held that the witness was unqualified to express such an opinion. On appeal, we agreed, but additionally held that the opinion was inadmissible because it invaded the province of the jury. Hampton, supra, at 742. In so doing, Hampton made no mention of Department of Highways v. Widner, supra, which had overruled a long line of cases holding that an expert could riot render an opinion as to the ultimate issue. In Pendleton v. Commonwealth, Ky., 685 S.W.2d 549, 553 (1985), we followed Hampton and upheld a trial judge’s decision to exclude expert testimony that a defendant’s psychological profile was inconsistent with that of a sex offender, “because it went to the ultimate issue of innocence or guilt.” Id. at 553. Since Pendleton, our decisions on this issue have been inconsistent not only with respect to what is or is not the ultimate issue, but also with respect to what constitutes an expression of opinion on that issue, viz:
1.In Wemyss v. Coleman, Ky., 729 S.W.2d 174 (1987), we held that a properly qualified expert witness could express an opinion that the failure of a driver to use a seat belt was a contributing cause of injuries received in an automobile accident.
2. In Kroth v. Commonwealth, Ky., 737 S.W.2d 680 (1987), a police officer was permitted to express his opinion that the defendant would not possess the quantity of drugs in his possession except for the purpose of sale.
3. In Carpenter v. Commonwealth, Ky., 771 S.W.2d 822 (1989), a doctor was permitted to express his opinion that the child victim’s physical condition was caused by physical abuse. Citing Department of Highways v. Widner, supra, and not mentioning Pendleton v. Commonwealth, supra, it was held that, “Opinion testimony is admissible where it appears that the trier of fact would be assisted in the solution of the ultimate problem.” Carpenter, supra, at 825.
4. In Brown v. Commonwealth, supra, it was held that a doctor’s testimony as to the age of a cervical tear was an opinion as to the ultimate issue.
5. In Sargent v. Commonwealth, Ky., 813 S.W.2d 801 (1991), a police officer was permitted to express his opinion that the marijuana possessed by the defendant was of such quantity as to have been possessed for the purpose of sale, citing Kroth, supra.
6. In Hellstrom v. Commonwealth, supra, it was held that a witness’s opinion that “delayed disclosure” is common among victims of child sexual abuse was an expression of an opinion on the ultimate issue. (The witness also was found to be unqualified to express an expert opinion on the subject.) However, it was held in the same case that it was not error to admit a doctor’s opinion that physical changes observed during examination of the child victim’s external genitalia were consistent with her history of sexual abuse.
7. In Turfway Park Racing Ass’n v. Griffin, Ky., 834 S.W.2d 667 (1992), an economic expert was permitted to express his opinion as to the damage sustained by the plaintiffs estate as a result of his wrongful death.
8. In Hall v. Commonwealth, supra, an expert’s opinion that if a child repeats the same statement consistently over a period of
9. In Alexander v. Commonwealth, supra, a doctor’s opinion that a small tear in the child victim’s hymenal ring was consistent with a medical history of vaginal intercourse with an adult was held inadmissible as an expression of opinion as to the ultimate issue, citing Brown, supra, but not mentioning Hellstrom, supra.
10. In Cecil v. Commonwealth, Ky., 888 S.W.2d 669 (1994), a psychologist’s opinion that the defendant was acting intentionally when she killed her victim was held admissible because “the testimony was offered to assist the trier of fact in understanding the evidence of mental illness, and in determining the fact in issue of the appellant’s ability to form the intent to commit murder.” Id. at 675. (Emphasis added.)
11. In Renfro v. Commonwealth, Ky., 893 S.W.2d 795 (1995), it was held that an opinion of an accident reconstruction expert that the accident was caused by the defendant’s driving in the wrong lane, running a red light, being under the influence of alcohol, and driving at a high rate of speed improperly invaded the province of the jury, but was “harmless error.”
12. In Turner v. Commonwealth, supra, the opinions of two doctors that the child victim’s history was “not inconsistent” with their physical findings were held to have been properly admitted.
13. In Newkirk v. Commonwealth, Ky., 937 S.W.2d 690 (1996), an expert’s opinion that it is common for victims of child sexual abuse to recant was held to be an opinion “synonymous” with the ultimate fact of guilt.
In a criminal case, the ultimate fact in issue is whether the defendant is guilty or not guilty. Whether the physical findings testified to by Dr. Nunemaker were consistent with sexual abuse is only a relevant evidentiary fact tending to make the ultimate fact more or less probable. KRE 401. As Professor Lawson politely notes:
The end result of these developments is extreme difficulty in the lower courts in determining admissibility of expert testimony embracing ultimate issues. The most one can say in summary of this part of the law is that expert opinion testimony may be inadmissible in some instances because it embraces ultimate issues of fact.
Lawson, supra, § 6.25, p. 313.
Part of our responsibility as the highest Court of this Commonwealth is to provide guidance for our trial judges as to how we expect them to conduct their trials. No doubt, the inherent inconsistency in our decisions with respect to the so-called “ultimate issue” rule is why these same issues continue to recur. The “ultimate issue” rule reflects a distrust of the jury’s ability to separate the wheat from the chaff and, in that respect, is an anachronism. “[The] common sense view is to receive the opinion testimony where it appears that the trier of fact would be assisted rather than impeded in the solution of the ultimate problem.” Department of Highways v. Widner, supra, at 586-87, quoting 2 Jones on Evidence, § 418 (5th ed.). This common sense view is now codified in KRE 702.
We now once again depart from the “ultimate issue” rule and rejoin the majority view on this issue. Expert opinion evidence is admissible so long as (1) the witness is qualified to render an opinion on the subject matter, (2) the subject matter satisfies the requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), (3) the subject matter satisfies the test of relevancy set forth in KRE 401, subject to the balancing of probativeness against prejudice required by KRE 403, and (4) the opinion will assist the trier of fact per KRE 702. Brown v. Commonwealth, supra, and Alexander v. Commonwealth, supra, are overruled insofar as they hold otherwise. Our departure from the “ultimate issue” rule does not contravene KRE 1102 and 1103. Our failure to adopt proposed KRE 704 simply left the “ultimate issue” unaddressed in the Kentucky Rules of Evidence and, therefore, subject to common law interpretation by proper application of
The opinion rendered by Dr. Nunemaker in this case concerned a subject peculiarly within the knowledge of a trained physician and was likely to assist the jury in determining whether J.V. had been sexually abused by Appellant: There was no error in the admission of this testimony.
VI. SUPPRESSED EVIDENCE
The trial judge suppressed evidence offered by Appellant in four respects.
1. Appellant sought to introduce some handwritten notes contained in records prepared by a previous owner of the day care center describing conduct by J.V. which occurred in 1989. One entry related that J.V. was observed touching her vaginal area with her hand during naps. Another related that J.V. teased the boys at the center by raising her dress. The trial judge excluded this evidence as being nonspecific and too remote in time.
Evidence of the character of the victim of criminal sexual conduct is generally inadmissible. KRE 404(a)(2). KRE 412(b) sets forth three exceptions to this rule, which may be summarized as follows: (1) to prove Appellant was not the source of the semen or injury; (2) to prove that the victim consented to the sexual behavior; or (3) to prove any other fact directly pertaining to the offense charged. The proffered evidence did not tend to prove any other cause of J.V.’s vaginal abnormalities. Consent is not a defense to sexual misconduct with a child under the age of twelve. Finally, since the evidence concerned events occurring three years prior to the events for which Appellant was indicted, they could not have directly pertained to the offenses charged. The evidence was properly excluded. Billings v. Commonwealth, Ky., 843 S.W.2d 890, 894 (1992).
2. Dr. Terence Campbell testified by avowal that children are generally suggestible and may be improperly influenced by adult interrogators if proper procedures are not followed. Since the interviews of J.V. were neither videotaped nor audiotaped, Dr. Campbell could not ascertain whether proper procedures had been followed in this case. Thus, he presumed that proper techniques were not followed and, ergo, the testimony of the children was unreliable. This proposed hypothesis premised upon speculation was properly excluded as irrelevant.
3. Lora Poynter was the mother of another child suspected of having been abused by Appellant. She proposed to testify that she did not approve of the manner in which the social workers interviewed her daughter. However, she had no background which would qualify her to render an opinion on that subject.
4. Ernest Alexander was the father of another child suspected of having been abused by Appellant. He was of the opinion that the social workers were already convinced of Appellant’s guilt. No social worker rendered an opinion as to Appellant’s guilt at trial. In the absence of any proof that the social workers falsified evidence, Alexander’s opinion was irrelevant.
For the reasons stated herein, the judgments of conviction and the sentences imposed by the Pulaski Circuit Court are affirmed.
. Rule 704(a) of the Federal Rules of Evidence (which we refused to adopt) states, in pertinent part: ‘‘[TJestimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.”