Herbert Eades v. Commonwealth of Kentucky

RENDERED : APRIL 22, 2010
U"ISI-ZD
,*uyrrmr (~Vurf of
2008-SC-000920-MR
HERBERT EADES
DATE S-r3-to - D,C
APPELLA
- i;~
ON APPEAL FROM OHIO CIRCUIT COURT
V HONORABLE RONNIE C . DORTCH, JUDGE
NO . 07-CR-00060
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant Herbert Eades appeals his conviction for three counts of first-
degree sodomy, and one count of first-degree sexual abuse . Appellant received
a life sentence on each of the sodomy convictions and a sentence of five years'
imprisonment for the sex abuse conviction . The court ordered that the
sentences run concurrently for a total of life imprisonment. Appellant appeals
to this Court as a matter of right' and raises two assignments of error: (1) that
the trial court erred in allowing testimony suggesting prior sexual abuse of
children ; and (2) that the trial court erred in failing to conduct an in camera
review of the victim's mental health records .
Ky. Constitution F 110 .
The charges against Appellant were made by J .M ., a boy who was eight
years old at the time of the incidents and ten years old at the time of trial .
Appellant was a friend of J .M .'s family. In the summer of 2006, Appellant
asked J .M .'s mother if J .M . could help him with some yard work at his house
in Beaver Dam, Kentucky . J .M . stayed overnight at Appellant's house on two
occasions with Appellant and Appellant's girlfriend Dana Gould.
J .M . testified that, on the second visit, he and Appellant drove to get ice
cream in Appellant's truck, but Appellant first took him to a wooded area .
Once there, Appellant told J .M . to put on a pair of shorts that he had in the
truck, and they moved to the camper in the back of the truck. According to
J.M ., Appellant then removed the shorts and placed his mouth on J .M .'s penis .
He then turned J .M . over and placed his tongue in J .M .'s rectum . Then, he
turned J.M . back over to once again place his mouth on J.M.'s penis .
J .M . also testified that, one night when he and Appellant were alone in
Appellant's living room, Appellant licked J .M .'s leg. These two incidents formed
the basis for Appellant's conviction for three counts of first-degree sodomy and
one count of sexual abuse . Appellant now appeals from those convictions.
ALLEGED PRIOR BAD ACTS EVIDENCE
Prior to trial, Appellant filed a motion to suppress evidence of his prior
convictions and prior bad acts . More specifically, Appellant wanted to exclude
evidence of his conviction for numerous sexual offenses involving a young boy,
including first-degree sodomy, in 1989 . The court ruled the evidence of
Appellant's prior sexual abuse convictions inadmissible because the probative
value of such evidence was substantially outweighed by the danger of undue
prejudice.
At trial, when cross-examining Appellant's girlfriend Dana Gould, the
Commonwealth asked about statements she had made to the investigating
detective . The prosecutor asked, "Isn't it true that you told Detective Jones
that you made a point not to let [Appellant] alone with children?" Gould
answered yes . The Commonwealth then asked, "Is it also true that [Appellant]
made a point not to be alone with children?" Gould again answered yes.
Appellant testified in his own defense, denying any abuse. On cross-
examination, the prosecutor asked, "And actually you made a point yourself to
stay away from eight-year-old boys, didn't you?" Appellant answered yes . The
trial court permitted these questions over Appellant's objection, but did not
permit any specific mention of Appellant's prior bad acts.
On appeal, Appellant contends it was error to allow these questions,
because they were highly suggestive of a predisposition to sexual abuse and
were merely an attempt to circumvent the prohibitions of KRE 404(b), which
states that "[e]vidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in conformity
therewith ." We review a trial court's evidentiary rulings for an abuse of
discretion, Anderson v. Commonwealth, 231 S .W.3d 117, 119 (Ky. 2007) (citing
Woodard v. Commonwealth, 147 S .W.3d 63 (Ky. 2004)), i.e. "whether the trial
judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound
legal principles." Goodyear Tire & Rubber Co . v. Thompson, 11 S .W .3d 575, 581
(Ky. 2000) (citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)) .
First, we note that not wanting to be alone with children is not illegal or
immoral, and thus is not "bad acts" evidence by itself. There is no doubt that
the jury could only speculate as to why Appellant was not left alone with
children . However, the questions by the prosecutor were aimed more at
pointing out the inconsistency of Appellant not wanting to be alone with
children, and yet choosing to be alone with J.M. The questions were asked in
isolation, without reference to any specific bad acts by Appellant .
And viewed in context with the prosecutor's other questions, these
isolated questions were not particularly persuasive with respect to Appellant's
guilt or innocence . After reviewing the complete cross-examination of Gould
and Appellant, we "can say with fair assurance that the judgment was not
substantially swayed" by the questions at issue . Winstead v. Commonwealth,
283 S.W .3d 678, 689 (Ky. 2009) (citing Kotteakos v. United States, 328 U.S .
750 (1946)) . Therefore, the error, if any, was harmless .
DENIAL OF MOTION FOR IN CAMERA REVIEW OF VICTIM'S MENTAL
HEALTH RECORDS
Prior to trial, Appellant filed a motion requesting the production of, and
an in camera review of, J .M .'s mental health records. The motion contended
that J.M . was being seen by both a psychiatrist and a psychologist, and was on
medication . The motion also contended that J .M .'s mother had taken him to
see his psychiatrist, because she had doubts as to whether J .M . was telling the
truth about the alleged sexual abuse.
Appellant's motion requested the court conduct an in camera inspection
of the mental health records for exculpatory or impeachment material . The
trial court heard the motion on August 19, 2008, after the jury was selected .
The trial court denied the motion, agreeing with the Commonwealth that the
request was a "fishing expedition," and stating that there must be a reasonable
expectation that the files would produce exculpatory evidence .
On appeal, Appellant contends that he met the preliminary showing of
evidence sufficient to establish a reasonable belief that the records contain
exculpatory evidence to request the court review those records .
Only upon a preliminary showing of "evidence
sufficient to establish a reasonable belief that the
records contain exculpatory evidence" are a witness's
psychotherapy records subject to production . And
even at that point, the production is limited to an in
camera inspection by the trial court to determine
whether the records, in fact, contain exculpatory
evidence, including that relevant to the witness's
credibility.
Richardson v. Commonwealth, 161 S .W.3d 327, 329 (Ky. 2005) (quoting
Commonwealth v. Barroso, 122 S.W.3d 554, 564 (Ky 2003)) (internal citation
and footnote omitted) .
Factors a court should consider in allowing such
evidence are the nature of the psychological problem,
the temporal recency or remoteness of the condition,
and whether the witness suffered from the condition at
the time of the events to which she is to testify. For
example, a. mental illness that causes hallucinations
or delusions is generally more probative of credibility
than a condition causing only depression, irritability,
impulsivity, or anxiety.
Barroso, 122 S .W.3d at 562-63 (quoting People v. Anderson, 22 P.3d 347, 391
(Cal . 2001) (Kennard, J ., concurring)) .
Here, Appellant failed to make the preliminary showing necessary to
trigger an in camera review of J.M.'s mental health records. Appellant's motion
simply asserted that J.M .'s mother took him to a psychiatrist because she was
unsure he was telling the truth. We recognize that it may be difficult for
someone in Appellant's position to formulate a reasonable belief without first
seeing the contents of the mental health records. However, without a
preliminary showing of some articulable evidence, the inquiry is simply a
"fishing expedition." Therefore, the trial court did not err in denying
Appellant's motion for an in camera inspection of J .M .'s mental health records .
For the forgoing reasons, the judgment and sentence of the Ohio Circuit
Court is hereby affirmed .
All sitting . All concur.
COUNSEL FOR APPELLANT:
Shelly R . Fears
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601-1133
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
Michael John Marsch
Assistant Attorney General
Office of Criminal Appeals
Attorney General's Office
1024 Capital Center Drive
Frankfort, KY 40601