Gregory Stephens v. Commonwealth of Kentucky

RENDERED: DECEMBER 14, 2023
TO BE PUBLISHED
Supreme Court of Kentucky
2022-SC-0244-MR
GREGORY STEPHENS APPELLANT
ON APPEAL FROM HARLAN CIRCUIT COURT
V. HONORABLE KENT HENDRICKSON, JUDGE
NO. 21-CR-00011
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE THOMPSON
REVERSING AND REMANDING
Gregory Stephens appeals from the Harlan Circuit Court’s judgment and
sentence after a jury trial, in which he was convicted of first-degree rape and
being a persistent felony offender in the second-degree (PFO-2). Stephens
argues that various trial errors rendered his trial fundamentally unfair. We
agree, and reverse and remand because palpable error occurred.
The entirety of the evidence for the Commonwealth was derived from the
statements of the child victim, Amy. 1 Amy testified that Stephens, her mother’s
“on-again/off-again” boyfriend, raped her at his trailer when she was twelve
years old. She was certain about the event, certain about Stephens being her
rapist, and certain about where she was raped, explaining she was very
1 Amy is a pseudonym employed by the Court to protect the privacy of the child.
We also refrain from naming Amy’s brother, mother, or the members of the family with
whom she lives.
familiar with Stephens and his home. Amy’s only uncertainty was when exactly
the rape occurred. While she was a very credible witness, reversal is required
because in this “he said, she said” case, the Commonwealth was erroneously
allowed to elicit testimony from additional witnesses to bolster Amy’s testimony
with her prior hearsay statements and to vouch for her credibility.
Stephens testified and denied ever raping Amy. There was no physical
evidence. The only witness who could have confirmed or denied that Amy was
taken to Stephens’s trailer and the related circumstances of this event, Amy’s
mother, was not called to testify as a witness by either party.
Stephens’s defense was innocence and that it would have been almost
impossible for him to commit the crime during the identified time frame. 2
Detective Roddy Sturgill testified that Amy’s mother in her interview indicated
that she had not seen Stephens since 2016, when she broke up with him;
Stephens testified he had not seen Amy’s mother or Amy since 2016.
The indictment stated that the rape occurred on or around October 28,
2018; this date was determined from Amy telling Kayla Byrd (a social worker
and a forensic investigator with a child advocacy center) that the rape occurred
before Halloween. Amy testified she misspoke to Byrd because she was nervous
and the crime occurred after Halloween in 2018, when it was cold out, but
before she started staying with the deputy jailer’s family; the deputy jailer
testified that Amy began staying with his family on November 12, 2018, and
2 Certainly, unusual circumstances can be true, and the crime being committed
at a different time does not mean that the crime did not occur as described by Amy.
2
that when Amy told him about the crime two years after she began staying with
him, she said it happened around Halloween.
Detective Sturgill testified that Stephens was incarcerated from
September 2017 until November 6, 2018, when he was released on home
incarceration. Probation and Parole Officer Adam Tyler Smith and Stephens
both testified that Stephens was released onto home incarceration on
November 6, 2018, to Stephens’s mother’s address (a different address than
where his trailer was located) until Stephen’s home incarceration terminated on
November 30, 2018. Officer Smith explained that Stephens could leave his
mother’s residence for appropriate preapproved purposes.
To reconcile the timeline, Amy would have needed to be raped by
Stephens between November 6, 2018, and November 12, 2018, while Stephens
was on home incarceration at his mother’s address, a difficult but not
impossible scenario. Under these circumstances, it was prejudicial to have
Amy’s testimony improperly bolstered by multiple witnesses. Both the deputy
jailer and Byrd were allowed to identify Stephens as Amy’s rapist based on
Amy’s hearsay statements and the deputy jailer also provided a complete
hearsay account of Amy’s rape. Detective Sturgill, the deputy jailer and Byrd
were all allowed to vouch for Amy’s credibility. Additionally, the deputy jailer
was also improperly permitted to testify during the guilt phase of the trial
about the impact the rape had on Amy. We cannot allow Stephens’s conviction
to stand given such obvious and palpable combined errors.
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I. FACTUAL AND LEGAL BACKGROUND
Amy was twelve when she began living with the deputy jailer, his wife,
and their family. Before that, Amy had an unstable living situation with her
brother’s father. The deputy jailer’s daughter, who went to school with Amy
and was on a cheerleading team with her, told her parents that Amy was
walking around in a t-shirt and broken flipflops in cold weather. On Tuesday,
November 12, 2018, the deputy jailer’s family invited Amy for a meal and gave
her basic necessities. Amy spent the night and, with her brother’s father’s
permission, continued to stay with the deputy jailer’s family. Eventually, the
deputy jailer and his wife became Amy’s guardians.
In October 2020, Amy disclosed to the deputy jailer and his wife that she
had been raped two years earlier by Stephens when Amy’s mother took her to
Stephens’s trailer home and left her there. Stephens was indicted for first-
degree rape, with the indictment specifying this took place on or around
October 28, 2018.
Detective Sturgill testified about his investigation. He testified he
watched via closed circuit television as Amy was interviewed by Byrd and,
based on what she said, he went and talked with the county attorney who
issued an arrest warrant. In answering a question about whether an arrest
warrant is typically issued immediately, Detective Sturgill stated “if they hear
what we have to say and they believe it as well, they’ll go ahead and issue the
warrant.” When additionally asked if there was a reason he decided to get the
arrest warrant immediately, he explained “[a]fter hearing [Amy’s] story and
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listening to her and listening to some of the facts that she provided in the case,
I believed her story[.]”
Detective Sturgill testified he then went to the Harlan County Detention
Center where Stephens was already lodged, issued the warrant and then
interviewed Stephens. According to Sturgill, Stephens denied all the allegations
and expressed that he did not know why Amy would think he did it, explaining
he was incarcerated prior to when the allegations were made. Detective Sturgill
explained he next went to get the jail records and found out that Stephens had
been incarcerated from September 2017 until he was released onto home
incarceration on November 6, 2018.
Detective Sturgill stated it was hard to get an interview with Amy’s
mother, but he was finally able to interview her when she was incarcerated at
the Warren County Detention Center. Amy’s mother indicated she was unsure
of dates and times, but that she had last dated Stephens back in 2016. During
cross-examination, Detective Sturgill stated that Amy’s mother indicated she
had not had any communication with Stephens since her relationship with
Stephens ended in 2016; the relationship ended badly, and she sought a
protective order in 2016.
The deputy jailer testified extensively about how Amy came to live with
them, his family’s involvement in church and Amy’s involvement with them and
their church. He explained that Amy disclosed the rape to them because it was
required by “her spiritual race”, “she was living a lie by not being honest”, and
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“she didn’t feel like she could get any closer to God until she spoke her truth
and was honest about what she’d been through.”
The deputy jailer then recounted in great detail, and without any
objection, Amy’s entire account to him about the rape. The deputy jailer
testified Amy told him that in 2018, around the time of Halloween, when Amy
was twelve, her mother came to pick Amy up. According to Amy, she did not
know where they were going, but her mother took her to Stephens’s home.
The deputy jailer explained that Amy told him that she did not want to go
to Stephens’s home because Stephens had previously been abusive toward
Amy when she tried to intervene in abuse happening to her mother, resulting
in Amy going to school with marks and a black eye, and telling the school
counselor what had occurred. Later, the deputy jailer explained that Amy had
previously told him about the physical abuse involving Stephens and he
believed Stephens had gone to jail for it.
The deputy jailer explained that Amy told him that despite her objection,
Amy’s mother drove her to Stephens’s home. The deputy jailer testified that
Amy told him that after she and her mother arrived at Stephens’s home, Amy’s
mother made Amy take a pill and left her there alone with Stephens while her
mother went to Walmart. He explained that although he and his wife had
asked, Amy did not know what type of pill it was.
The deputy jailer testified that according to Amy, when Amy was left
alone with him, “Greg Stephens grabbed her, pushed her face down in the
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couch and raped her from behind.” The deputy jailer repeated over and over
the name “Greg Stephens” in reciting Amy’s account of what occurred.
The deputy jailer also stated that Amy was certain of what had happened
and clear that Stephens had done it, saying that Amy knew how to get to
Stephens’s home and “[t]here is no question of identifying who the attacker
was.”
The deputy jailer also testified that Amy had problems when she tried to
sleep, from the time she began to live with them, although it was somewhat
better after she disclosed the rape to him. He explained that Amy suffers from
night terrors, sees dark figures, and has an inability to sleep. He also testified
that Amy wants to have a job but fears who might come in there, and that he
does not want her fear to control her life.
On cross-examination, the deputy jailer admitted that in his role as
deputy jailer, he was familiar with who is in the jails and knew that Stephens
was incarcerated and not released onto home incarceration until November 6,
2018.
Amy testified that shortly before she began to live with the deputy jailer’s
family, her mother picked her up from her brother’s father’s home and took her
to Stephens’s house, a trailer. Amy explained that when her mother got her,
she did not know where they were going, but as they were driving, she
recognized the route to Stephens’s home, which Amy knew well because she
had been in his home many times. Amy explained her mother always went
back to Stephens. Amy testified she vehemently objected to going to Stephens’s
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home, but her mother said she needed to go to there to get her purse. Amy
explained she did not want to go to Stephens’s home as he had been physically
abusive to her mother many times, and also hit her brother and her when they
tried to intervene. 3
Amy testified her mother insisted they needed to go to Stephens’s home
but given her protests initially her mother gave Amy permission to remain in
the car. However, once they arrived her mother yelled at her and demanded she
get out of the car. Amy stated that when they walked in, she sat on the couch
and her mother went back into Stephens’s bedroom and remained inside for
five to ten minutes. Then her mother came out and told her to stay there.
Amy testified she told her mother “I am not,” and then Stephens walked
out of his bedroom and “a fear came upon me” so she “piped down.” Then her
mother told her to take a pill, she objected, and her mother insisted. Amy
explained she took the pill because she was afraid of Stephens; she drank it
with her mother’s sweet tea, which she hated.
Amy testified that after her mother left, Stephens told her that she could
watch cartoons. When she picked up the remote from by the television, he
came up to her and she believed he was going to beat her, so she backed up to
the wall, and closed her eyes. Then she felt him softly putting her hair behind
her ear, and she knew what was going to happen. Amy moved away, and
Stephens picked her up and threw her on the couch. She was pinned down
3 Amy did not state when the prior physical violence by Stephens occurred.
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because he was sitting on her chest; she was hollering, hitting, and fighting
him, but it did not have any effect.
Amy testified that Stephens pulled her shorts off and her underwear
down to her ankles. She got loose for a moment and got up, but Stephens
turned her over and pressed her head into the corner of the couch and then
“stuck his penis into my vagina” which caused the “most indescribable pain.”
Amy testified she kept trying to fight, but the more she fought, the more it
hurt, and she was becoming weaker and could not breathe.
Amy described hearing a car door, a dog barking, and then Stephens
getting up. At that point she hit the floor trying to get away. Amy reported not
remembering her mother arriving, and not remembering most of the car ride
back to her brother’s father’s home; she was dizzy and did not feel right. Amy
testified that the next few days she felt mentally numb, “not okay at all” and
wondering why she was “still on the earth if life was going to be like this.”
Amy testified that when she disclosed the rape to the deputy jailer and
his wife, she told them the details of what happened but did not tell them an
exact date. She explained that the rape occurred when she was living with her
brother’s father and “not long at all before” she began living with the deputy
jailer’s family, “right before” or “soon before” then, around Halloween, but she
was not sure of an exact date, just that it occurred when there was colder
weather (the deputy jailer previously testified Amy started staying with them on
November 12, 2018). Amy explained when she told the interviewer about when
it occurred, she meant to tell her it happened around Halloween but
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accidentally told her it was before Halloween, explaining she misspoke to her
because she was nervous.
Amy positively identified photos of Stephens’s trailer, remembered the
address, and stated that the incident occurred there, by the railroad tracks.
The photos were introduced into evidence.
Byrd testified she was a forensic interviewer at the children’s advocacy
center, had a master’s degree in social work, had previously conducted over
three hundred forensic interviews, and had completed a five-day training
course on forensic interviewing. Byrd explained that upon the conclusion of
conducting a forensic interview, she could then refer the child for counseling or
for a medical examination.
Byrd explained Amy was emotional, and that Byrd guided the interview
in a nonleading, nonsuggestive manner. Byrd repeatedly stated that when she
interviewed Amy that she communicated her story “very well” with “detail.”
Byrd recommended trauma therapy for Amy.
Byrd specifically recounted that Amy told her that “Gregory Stephens,
which was mother’s boyfriend, put his ‘bad part’ in her” and Byrd was able to
clarify that meant he had put his penis in her vagina. Byrd confirmed Amy told
her this incident happened before Halloween, in October. Byrd testified she
found Amy’s story to be credible but later clarified that she could not say
whether Amy was telling the truth or not but had no reason to believe she
would lie about “such serious allegations with detail.”
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Officer Smith testified that Stephens was incarcerated until he was
released on home monitoring to his mother’s house on November 6, 2018, and
remained there on home incarceration until it terminated on November 30,
2018. Officer Smith explained that Stephens could leave his home for
prearranged purposes, including to attend church, purchase groceries, to look
for a job and go to work. 4
Stephens testified he was in custody at the Harlan County Detention
Center on October 28, 2018, which according to the indictment was “on or
about” the date the rape occurred. He explained he was not released until
November 6, 2018, and that day was placed on home incarceration with an
ankle monitor at his mother’s home and lived with his mother and his brother
on monitoring until November 30, 2018. Stephens testified he could not step
five feet outside of his mother’s home without getting a call and having the
police show up. He stated he only left his mother’s home once during that time
after asking for permission and naming his destination as required twenty-four
hours prior to the outing and was monitored during that time.
Stephens admitted to dating Amy’s mother and to knowing Amy but
denied having seen Amy’s mother or Amy after he stopped dating Amy’s mother
in 2016. He denied ever hitting or touching Amy or her brother and stated Amy
made that up. Stephens testified he argued with Amy’s mother, defending
himself against Amy’s mother when she was high on drugs and acting crazy,
4 Officer Smith did not testify as to whether Stephens had ever made any
arrangements to leave his mother’s house while he was on home incarceration.
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but admitted that Amy’s mother had gotten a domestic violence order (DVO)
against him. Stephens denied raping Amy and testified that Amy made up the
account of the rape.
The jury found Stephens guilty of first-degree rape. It also found him
guilty of PFO-2. The jury recommended he serve twenty years of incarceration
on the rape conviction, enhanced to twenty-five years for being a PFO-2.
II. ANALYSIS OF ARGUMENTS
Stephens raises several arguments on appeal regarding trial errors: (1)
the deputy jailer’s testimony as a whole (which included bolstering hearsay
testimony, vouching testimony regarding Amy’s certainty and religious reasons
for coming forward, extensive irrelevant background information including
religious belief by Amy and the deputy jailer, and victim impact evidence),
violated Stephens’s rights; (2) Byrd’s testimony contained improper hearsay
bolstering and vouching of Amy testimony; (3) testimony regarding physical
abuse of Amy, her brother and her mother was irrelevant and improper
character evidence; (4) the prosecutor should not have been allowed to ask
Stephens to characterize other witnesses as lying; (5) the prosecutor committed
misconduct in closing argument; (6) the prosecutor tainted the penalty phase
by presenting evidence about prior charges that were dismissed or amended
down; and (7) cumulative error occurred. 5
5 We have reordered Stephens’s arguments to address the reversible errors first,
combining the discussion of errors that pertain to more than one witness to avoid
unnecessary duplication of the discussion. As we are reversing, we omit addressing
cumulative error as a separate issue.
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The trial court erred in permitting the witnesses to improperly bolster
Amy’s testimony in this close case through repeating her hearsay statements
naming Stephens as her rapist and relating what he did to her, vouching for
her credibility, and allowing victim impact testimony during the guilt phase of
the trial. Even though these errors were not preserved, as established by a trio
of our prior cases, Chavies v. Commonwealth, 374 S.W.3d 313 (Ky. 2012),
Alford v. Commonwealth, 338 S.W.3d 240 (Ky. 2011), and Hoff v.
Commonwealth, 394 S.W.3d 368 (Ky. 2011), reversal is warranted for such a
serious and prejudicial breach of our evidentiary rules which rendered
Stephens’s trial fundamentally unfair.
A. Reversable Errors
Stephens argues that the deputy jailer and Byrd were wrongfully allowed
to relate Amy’s hearsay statements and to vouch for her credibility and
truthfulness. He also argues that the deputy jailer was wrongfully allowed to
testify about the impact the rape had on Amy’s life during the guilt phase.
These issues were not preserved. Stephens seeks palpable error review.
Although these errors were not objected to, the familiar standard of
review applies; whether a remedy is required then depends upon whether the
error is palpable. “An appellate court’s standard of review for admission of
evidence is whether the trial court abused its discretion.” Brewer v.
Commonwealth, 206 S.W.3d 313, 320 (Ky. 2006). “The test for abuse of
discretion is whether the trial judge’s decision was arbitrary, unreasonable,
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unfair, or unsupported by sound legal principles.” Commonwealth v. English,
993 S.W.2d 941, 945 (Ky. 1999).
1. Hearsay Statements
Kentucky Rules of Evidence (KRE) 802 provides that unless it qualifies
for an exception, hearsay testimony is not admissible. No general hearsay
exception allows a friend, parental figure, guardian, police officer, or other law
enforcement personnel to testify to the prior statements of a victim of sexual
assault. See Chavies, 374 S.W.3d at 322 (no hearsay exceptions for statements
made to a friend or teacher); Alford, 338 S.W.3d at 246 (no hearsay exceptions
for statements made to a police officer); Prater v. Cabinet for Human Res., 954
S.W.2d 954, 959 (Ky. 1997) (no hearsay exceptions for statements made to
social workers).
There is a hearsay exception for statements made for purposes of medical
treatment, pursuant to KRE 803(4). Generally, licensed social workers who can
refer clients for therapy come under this hearsay exception. See Cabinet for
Health & Fam. Servs. v. A.G.G., 190 S.W.3d 338, 343-44 (Ky. 2006). However,
such exception does not reach as far as allowing medical professionals to
testify as to the identity of the perpetrator. Hoff, 394 S.W.3d a 372-74. “This
Court has recognized that it is highly prejudicial for a doctor or other
professional to repeat the hearsay statement of a child identifying the child’s
abuser.” Id. at 373.
KRE 801A(a)(2) contains a narrow hearsay exception, but it does not
apply here as Stephens did not imply a charge of recent fabrication by Amy.
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See Dickerson v. Commonwealth, 174 S.W.3d 451, 472 (Ky. 2005); Edmonds v.
Commonwealth, 433 S.W.3d 309, 313-14 (Ky. 2014). “A witness cannot be
corroborated by proof that on previous occasions he has made the same
statements as those made in his testimony.” Dickerson, 174 S.W.3d at 472.
(a) The deputy jailer should not have been permitted to testify
about Amy’s statements describing her rape and identifying
her rapist as no hearsay exception permitted such
testimony.
Stephens argues that the entirety of the deputy jailer’s testimony
recounting Amy’s allegations against Stephens was inadmissible hearsay.
Stephens explains that there is no exception which would allow the deputy
jailer to relate statements from Amy about her sexual abuse and such
testimony unfairly bolsters Amy’s own testimony and is highly prejudicial.
Stephens additionally argues that where Amy’s testimony was also presented,
the deputy jailer’s testimony to the same events also lacks probative value. The
Commonwealth counters that the deputy jailer’s statements relating what Amy
told him were not inadmissible hearsay because they were offered not for the
truth of the matter asserted but as proof that Amy disclosed the rape to the
deputy jailer.
We disagree with the Commonwealth that Amy’s statements to the
deputy jailer were not hearsay because they were only admitted to establish
that she made a disclosure to him. The detailed allegations which the deputy
jailer related from Amy went far beyond this scope.
The Commonwealth Attorney asked the deputy jailer if Amy “at some
point came to him and made a very specific report.” The deputy jailer replied
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that “she told my wife that she had been raped and by who” and then his wife
called him into the room and “[Amy] explained to me what she had just
explained to my wife.” This exchange and others about the timeline of when
Amy disclosed was sufficient to establish that Amy told them about the rape.
However, the Commonwealth did not cease its questioning about the
underlying incident after such testimony. Instead, the Commonwealth Attorney
asked further questions which elicited detailed hearsay statements. Such
testimony had no other purpose but to bolster Amy’s anticipated testimony:
Q: And in telling you what happened to her, was she able to give
you specific details?
A: She told us, in 2018 around the time of Halloween, her mother
came to pick her up to spend time with her. Her mother was not
allowed to legally spend time with her, be around her, but when
you have a child that is cast to the winds with really no adult
supervision, her mother came and went as she pleased. She came
to pick [Amy] up to spend time with her. [Amy] didn’t know where
they were going, she just wanted to see her mother. She was twelve
years old at the time. She told me her mother took her to Greg
Stephens’s house and that she was not comfortable being there
because she had seen violence from Greg Stephens in the past.
She had seen him be abusive towards her mother. She is a child
who tried to intervene with him being violent towards her mother
which led to him being violent towards her. [Amy] told us that she
went to school with marks, and I believe she told me a black eye
and the school pulled her aside to speak with a counselor, the
counselor asked her what happened, and she freely told her that
Greg Stephens had physically attacked and abused her as she
tried to intervene in the abuse happening to her mother. Her
mother took her to Greg Stephens’s residence on this day. She said
they weren’t there long when her mother said, “I need to run to
Walmart, and I need you to stay here.” She said her mother
handed her some type of pill, she doesn’t, she . . . she was twelve,
she really can’t even tell us what it was she gave her. And . . . she
said her mother left her alone in the house with Greg Stephens
with the excuse that she had to run to Walmart. She told me that
Greg Stephens grabbed her and pushed her face down in the
couch and raped her from behind.
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In Chavies, Alford, and Hoff, our Court rejected that the admission of
hearsay testimony in which a witness repeated a victim’s prior statements
regarding sexual abuse was harmless. Instead, these opinions emphasize that
“[w]e have consistently recognized that such testimony is highly prejudicial and
unfairly bolsters the credibility of the allege victim.” Chavies, 374 S.W.3d at
322. See Alford, 338 S.W.3d at 246 (repeating this same pronouncement
almost verbatim).
These cases also recognized that such an error has the most impact and
is at its apex where the victim’s in-court and out-of-court statements are the
only evidence linking the defendant to the commission of the sexual assault
and the resolution of the case comes down to credibility, with the jury weighing
the victim’s word against the defendant’s word. Chavies, 374 S.W. 3d at 323;
Alford, 338 S.W.3d at 246-47. See Hoff, 394 S.W.3d at 377 (extending such
reasoning when the case only largely depends upon the victim’s credibility).
The trial court here abused its discretion in admitting the deputy jailer’s
substantive hearsay evidence which bolstered Amy’s testimony.
(b) Byrd should not have been permitted to testify about Amy’s
identification of Stephens as her rapist as no hearsay
exception permitted such testimony.
Stephens argues that Byrd, a social worker, could not properly relay
Amy’s identification of Stephens as her rapist because the hearsay exceptions
for purposes of medical treatment do not extend to the identity of the
perpetrator. The Commonwealth admits that Byrd’s testimony relaying Amy’s
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identification of her rapist is impermissible hearsay but argues this error does
not require reversal because “[t]he identity of who the perpetrator was or who
could have raped [Amy] was not at issue.”
Byrd’s testimony positively identified Stephens as Amy’s rapist:
Q: Was [Amy] able to specifically tell you about intercourse that
may have occurred?
A: Yes.
Q: Do you remember how she described that?
A: She stated that Gregory Stephens, which was her mother’s
boyfriend, put his “bad part” in her. I asked her what a “bad part”
was, and she spelled out P. E. N. I. S. and I confirmed she was
spelling penis and I confirmed she said he put it in her vagina.
Byrd’s testimony that Amy identified Stephens as her rapist is improper
hearsay testimony that does not qualify for any exception. This error was
obvious and undisputable. Byrd should not have been allowed to make this
statement.
2. Vouching Statements
A witness cannot vouch for the truthfulness of another witness either
directly or indirectly. Hoff, 394 S.W.3d at 376. “For example, physicians . . .
may not give an opinion as to the truthfulness of their patient.” King v.
Commonwealth, 472 S.W.3d 523, 531 (Ky. 2015).
“[T]his Court has repeatedly held that no expert, including a medical
doctor, can vouch for the truth of the victim’s out-of-court statements . . . even
. . . indirectly . . . .” Hoff, 394 S.W.3d at 373. An example of inappropriate
indirect vouching occurred in Bell v. Commonwealth, 245 S.W.3d 738, 744-45
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(Ky. 2008), overruled on other grounds by Harp v. Commonwealth, 266 S.W.3d
813 (Ky. 2008), when a social worker stated “that a child sounded
‘spontaneous’ and ‘unrehearsed’ in describing sexual abuse” as the social
worker’s opinion that the child was truthful “was implicit in her statements,
and so her testimony was impermissible bolstering.” Hoff, 394 S.W.3d at 373
(internal citations omitted, quoting from Bell). “This Court has held that social
workers and psychologists are not qualified to testify that they believe a child
has been sexually abused based on the child’s demeanor.” Id. See Hall v.
Commonwealth, 551 S.W.3d 7, 18 (Ky. 2018) (internal citation footnotes
omitted) (in discussing vouching in a closing statement the Court explained
“improper vouching . . . [can involve] comments that imply . . . special
knowledge of facts not in front of the jury or of the credibility and truthfulness
of witnesses and their testimony”).
In Hoff, our Court concluded that a physician’s statement that he did not
disbelieve the victim’s story was improper bolstering culminating in palpable
error. King, 472 S.W.3d at 531 (citing Hoff, 394 S.W.3d at 375). Similarly, in
King, “the testimony that the Task Force had ‘recommended’ prosecution is the
same thing as saying that it was the opinion of the members of the Task Force
that [the victim’s] charges were true [and] thus impermissibly bolstered the
victim’s testimony with the opinion of Task Force members.” Id. The Task
Force’s belief was irrelevant and prejudicial and its “only purpose . . . was to
improperly influence the jury’s perception of [the victim’s] account by
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suggesting that knowledgeable and reputable members had already accepted
his testimony as truthful.” Id. at 531-32.
In Ruiz v. Commonwealth, 471 S.W.3d 675, 684 (Ky. 2015), a case which
was already being reversed, our Court explained that a police officer’s
testimony that after hearing the six-year-old victim’s account “he ‘found
probable cause’ to prepare a report so further investigation would ensue[,]” was
problematic:
Although ambiguous, [the officer’s] testimony could be readily
understood to mean that he personally believed [the victim’s
account]. While it was certainly relevant and admissible for [the
officer] to explain that he filed his report and further investigation
followed, his characterization of the process as having ‘found
probable cause’ certainly expresses sufficient belief in the
truthfulness of the victim to run afoul of the rule against vouching,
and more importantly, the officer’s belief that “probable cause”
existed is absolutely irrelevant.
Id.However, testimony that is based not on the victim’s prior consistent
statements but on the witness’s own personal knowledge is not thereby barred
just because it is consistent with the victim’s prior consistent statements.
Edmonds v. Commonwealth, 433 S.W.3d 309, 314 (Ky. 2014).
(a) The deputy jailer should not have been permitted to
indirectly vouch for Amy’s credibility based on her being
certain of the identity of her attacker.
Stephens argues that the deputy jailer’s testimony about the certainty
with which Amy identified Stephens was impermissible bolstering by vouching
for her credibility. The Commonwealth disagrees that the deputy jailer’s
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testimony about Amy’s certainty was impermissible, arguing it was at most
indirect vouching which is not palpable error.
After the deputy jailer finished testifying about Amy’s account of what
happened to her, he then gave reasons why her account ought to be believed
despite her taking two years to disclose that the rape occurred:
Q: Did [Amy] disclose this [rape] soon after she came to live with
you?
A: No, it took time. It took about . . . [two years] . . . . She knows
where he lives. She can tell you in any direction in Harlan County
to go to get to his house. She knows the man. She knows who Greg
Stephens is. She knows where his house is. I mean she has a
history. It’s not like she doesn’t know who hurt her, who he is.
There’s no question of identifying who the attacker was.
Q: So that was going to be my next question, did she have any
trouble whatsoever, any hesitation, in naming who her attacker
was?
A: No, no.
Arguably, the portion of the deputy jailer’s testimony in which he stated
that Amy could tell you how to get to Stephens’s home from anywhere in
Harlan County and knew where his house was located may have been based on
the deputy jailer’s personal knowledge. Perhaps Amy had demonstrated this
knowledge when they were driving around which he could confirm by knowing
where Stephens’ home was located. 6
However, the deputy jailer also made other vouching statements that
could not have come from his own personal knowledge: “She knows the man.
6 How easy or difficult of a feat that was is subject to interpretation. Stephens
testified that everyone in the county knew where he lived.
21
She knows who Greg Stephens is . . . . I mean she has a history. It’s not like
she doesn’t know who hurt her, who he is. There’s no question of identifying
who the attacker was.” By making such statements, the deputy jailer was
making an indirect vouching statement that he believed Amy based on her own
certainty, rather than his own independent knowledge of what occurred.
Allowing such testimony was error.
(b) The deputy jailer should not have been permitted to
indirectly vouch for Amy’s credibility based on her coming
forward being based on her religious beliefs spurring her to
be honest about what had occurred.
Stephens argues that the deputy jailer’s statements that Amy told him
about the rape because “her religious journey and spiritual awakening
compelled her to come forward and be truthful . . . amounted to an assertion
that [Amy] would be more likely to be telling the truth because of her religious
faith” as prohibited by KRE 610. The Commonwealth argues that “[j]ust
because [Amy] was, in [the deputy jailer’s] view, choosing to disclose in part
because of her religious beliefs does not make it so prejudicial as to where the
jury was more likely to believe her story[,]” and defends these statements as
“not [being] made for the explicit purpose of enhancing her credibility.”
Our rules clearly prohibit bolstering a witness’s credibility based upon
religious belief. KRE 610 provides: “Evidence of the beliefs or opinions of a
witness on matters of religion is not admissible for the purpose of showing that
by reason of their nature the witness’ credibility is impaired or enhanced.” See
generally Allen v. Commonwealth, 286 S.W.3d 221, 232-33 (Ky. 2009)
(discussing limits on references to religious matters).
22
The deputy jailer testified as follows regarding this topic:
Q: [Amy’s] a different child now, she started out so reserved but at
some point, you said she never went home, and at some point she
did come to you and made a very specific report, can you tell us
about that?
A: She, she began praying, her, my daughter and her began
praying at about the same time at church, they prayed at the altar,
we attend church a lot, she, she, she really devoted herself to try to
seek the Lord and she came to a point, she came to my wife one
day . . . and she told my wife that she had been raped and by who
and said she was coming forward now because in her spiritual race
she felt like if she didn’t speak the truth—because we asked her in
past, “Has anybody touched you?” and she didn’t want to go there,
and to her she felt like she was living a lie by not being honest. So,
she told my wife first, my wife called me in the room, we, the three
of us together and [Amy] explained to me what she had just
explained to my wife. And she said that she didn’t feel like she
could get any closer to God until she spoke her truth and was
honest about what she’d been through.
Although the deputy jailer appears to have testified about Amy’s religious
journey as it interfaced with why she told them about rape rather than to
deliberately bolster the credibility of Amy’s statements as truthful, his intent is
not important. We are concerned that such references could have the
misleading effect of persuading members of the jury to believe Amy’s account
because it was spurred by her professed beliefs and her need to be honest with
God. This type of vouching based on religious belief is of course prohibited and
improper and should have been excluded.
(c) Byrd should not have been permitted to vouch for Amy’s
credibility directly and based on the details she gave
regarding the rape.
Stephens argues that Byrd could not properly vouch for Amy’s credibility.
The Commonwealth argues that by providing a caveat for her opinion and
23
generally stating that there was no reason not to believe “a child” rather than
Amy specifically, any bolstering by Byrd had minimal impact.
The objectionable testimony from Byrd is as follows:
Q: Did [Amy] communicate her story well?
A: Very well.
Q: In terms of details?
A: Yes.
....
Q: Did you find [Amy’s] story [regarding the rape] to be credible?
A: Yes.
Q: Is that part of your job, to determine, to make some judgments
in order to guide your recommendation?
A: It is not. I can’t say whether she was telling the truth or not but
with my education and background I have no reason to believe that
the child would lie about such serious allegations with detail.
Byrd later testified in direct and on cross-examination that no part of Amy’s
testimony was foggy, Amy was certain about the details and Amy was not
unclear about anything. 7
7 This testimony built upon prior testimony by the deputy jailer that Amy was
able to give a detailed report. The Commonwealth Attorney previously asked him if
Amy was able to give him specifical details, which resulted in his extensive monologue
relating all she had related about the rape. The Commonwealth Attorney repeatedly
returned to the topic of whether Amy had been able to give specific details:
Q: Okay, and so when she describes specifically what had happened to
her, are you telling all of us that she gave graphic details?
A: She did; she did to me . . . .
The Commonwealth Attorney commented before another question, “So the
details, even though she was a child, the details were there[.]”
24
Byrd’s initial statement that she found Amy’s story credible constituted
improper vouching. While Byrd initially appeared to correct this statement
when she stated “I can’t say whether she was telling the truth or not[,]” Byrd
then backtracked from this correction to say that she had “no reason to believe
the child would lie about such serious allegations with detail” and then to
confirm that Amy was certain about the details. In the context of Byrd’s whole
statement, we have no difficulty inferring that her statements were all
understood to refer to Amy and not just a general child victim. This was both
direct and indirect vouching for Amy’s credibility and is prohibited.
(d) Deputy Sturgill should not have been permitted to vouch
for Amy’s credibility directly and comment on the
county attorney believing her.
While Stephens has not raised this as an error, there is one further
example of how palpable error occurred in permitting a witness to vouch for
Amy’s credibility. Detective Sturgill specifically testified that after hearing
Amy’s interview with Byrd, he believed there was probable cause, he
immediately went to talk to the county attorney; and the county attorney
issued a warrant. When asked if having a warrant issued immediately was
typical, he explained “if they [the county attorney] hear what we have to say
and they believe it as well, they’ll go ahead and issue the warrant.” The
following exchange then took place:
Q: Was there any particular reason that you decided to get the
arrest warrant immediately?
A: After hearing [Amy’s] story and listening to her and listening to
some of the facts that she provided in the case, I, I fully believed
25
her story and went over and talked to the county attorney and
that’s why we issued the warrant.
(Emphasis added).
The testimony about Detective Sturgill believing there was probable
cause, his statement that the county attorney believed Amy’s statement (as
related through Detective Sturgill) and that Detective Sturgill “fully believed her
story” were all examples of inappropriate vouching for Amy’s credibility, with
the last example being direct vouching with no other possible interpretation.
This is clear error.
3. Victim Impact Evidence
Stephens argues that the deputy jailer’s testimony about the effects that
the rape had on Amy, “including her night terrors, inability to sleep, and her
concern about working a local job where she might encounter [Stephens][,]”
constitutes “prototypical victim impact evidence, which is not permitted in the
guilt phase of trial.” 8 The Commonwealth denies that the deputy jailer’s
testimony about the effects the rape had on Amy were victim impact
statements and defends their use as being simply that of background
information about the victim.
8 These were not the only statements that could be considered victim impact
testimony. The deputy jailer also opined that Amy had been through a “severely
traumatic” experience involving “things that will follow her adulthood, [Amy] will be
into her mid-twenties and only with the help of the Lord will she be able to overcome
the things that her past has given her.” Additionally, Amy testified that in the days
immediately after the rape she was “numb mentally” and unsure why she was “still on
the earth if life was going to be like this.”
26
As we recently reiterated in Alderson v. Commonwealth, 670 S.W.3d 884,
893 (Ky. 2023) (quoting Tackett v. Commonwealth, 445 S.W.3d 20, 33 (Ky.
2014)), “victim impact evidence masquerading as victim background evidence
is not permissible as the ‘introduction of victim impact evidence during the
guilt phase is reversible error.’” To sort out whether evidence is victim impact
evidence or victim background evidence, we examine “whether the evidence is
‘aimed primarily at appealing to the jurors’ sympathies’ or ‘providing an
understanding of the nature of the crime[.]’” Id. (quoting Tackett, 445 S.W.3d at
33). “‘[H]ighly inflammatory’ evidence with ‘little or no probative value’ which
concerns the ‘terrible loss’ suffered based on the crime is not appropriate for
introduction during the guilt phase of a trial.” Id. (quoting Ice v.
Commonwealth, 667 S.W.2d 675-76 (Ky. 1984)). In a case in which the
resolution depends upon whether the victim or the defendant should be
believed and other evidence is lacking, the perception of the child as a victim
who suffered “would arouse the jurors’ sympathy and could result in a verdict
rooted in that sympathy rather than based on the evidence properly admitted.”
Id. at 894.
As was the case in Alderson, the information about how the crime
affected Amy “was not background evidence . . . and was not relevant to
establish the underlying crime. There is no acceptable justification whatsoever
for admitting victim impact testimony at this phase of the criminal trial[.]” 670
S.W.3d at 895. Such statements’ only purpose was to serve to potentially goad
the jury into making a ruling not based on the evidence but based on their
27
sympathies. The trial court erred in permitting such testimony to be introduced
during the guilt phase of the trial.
B. These Cumulative Errors are Palpable and Warrant Reversal.
Although the Commonwealth generally does not admit that errors
occurred regarding hearsay bolstering, vouching, and permitting the use of
victim impact evidence during the guilty phase of the trial, it repeatedly argues
that if we determine errors occurred, these unpreserved errors are not
palpable. We disagree.
Under [the Kentucky Rules of Criminal Procedure (RCr)] 10.26, an
unpreserved error may only be corrected on appeal if the error is
both “palpable” and “affects the substantial rights of a party” to
such a degree that it can be determined “manifest injustice
resulted from the error.” For error to be palpable, “it must be easily
perceptible, plain, obvious and readily noticeable.” Brewer v.
Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006). The rule’s
requirement of manifest injustice requires “showing . . . [a]
probability of a different result or error so fundamental as to
threaten a defendant’s entitlement to due process of law.” Martin v.
Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006). Or, as stated
differently, a palpable error is where “the defect in the proceeding
was shocking or jurisprudentially intolerable.” Id. at 4. Ultimately,
“[m]anifest injustice is found if the error seriously affected the
fairness, integrity, or public reputation of the proceeding.” Kingrey
v. Commonwealth, 396 S.W.3d 824, 831 (Ky. 2013) (quoting
McGuire v. Commonwealth, 368 S.W.3d 100, 112 (Ky. 2012)).
Young v. Commonwealth, 426 S.W.3d 577, 584 (Ky. 2014).
If hearsay bolstering occurs where the victim’s credibility is crucial to the
Commonwealth’s case, such an error can be palpable. Chavies, 374 S.W.3d at
323; Hoff, 394 S.W.3d at 377; Alford, 338 S.W.3d. at 246. In fact, unpreserved
hearsay bolstering errors, when combined with other unpreserved errors,
warranted reversal in Chavies, Hoff, and Alford. Chavies, 374 S.W.3d at 323-
28
24; Hoff, 394 S.W.3d at 379; Alford, 338 S.W.3d. at 246-47. “[Vouching]
testimony by a respected professional gives extra weight to the child victim’s
testimony and serves to unfairly prejudice the defendant.” Hoff, 394 S.W.3d at
379.
1. Hearsay Statements
In this case, the admission of this hearsay evidence was highly damaging
to Stephens because the only evidence in this case revolved around Amy’s
account of the rape, whether directly testified to by her, or testified to by the
deputy jailer or Byrd based on Amy’s statements. Stephens denied committing
this crime and provided a reasonable basis for why it would have been
extremely difficult for him to commit this crime during the timeframe Amy
identified.
The Commonwealth points out minor differences between the deputy
jailer’s account of Amy’s rape and her testimony, such as the fact that the
deputy jailer stated Amy’s mother told her she was leaving her with Stephens
so Amy’s mother could go to Walmart. The Commonwealth argues a bolstering
hearsay error cannot be palpable when differences occur between a hearsay
account and testimonial account of the crime committed against the victim. 9
We reject the Commonwealth’s premise. Whether such an error is palpable
depends not on whether accounts are identical but on the effect of the hearsay
9 The Commonwealth relies on an unpublished case in support of this
proposition. We remind the Commonwealth that it is not appropriate to cite to
unpublished cases when there are published cases on point. See Kentucky Rules of
Appellate Procedure (RAP) 41(A)(3).
29
admitted. Undoubtedly, any hearsay recitation is likely to vary at least slightly
from that of the victim testifying directly about what occurred, but such
variations do not prevent such testimony from being bolstering. There may be
occasions when such an error is not palpable because the accounts differ so
greatly that the erroneously admitted hearsay testimony either harms the
victim’s credibility or at least partially neutralizes the efficacy of the
erroneously admitted testimony. However, this is not one of those situations.
We also reject the Commonwealth’s supposition that we can ignore such
an error because the jury most likely relied on Amy’s testimony in rendering its
guilty verdict. The whole problem is that given such serious evidentiary errors,
we do not know whether the jury relied on admissible or inadmissible evidence
in rendering its verdict.
We disagree with the Commonwealth that the error in Byrd naming
Stephens as Amy’s rapist could not be palpable because there was no dispute
as to who Amy’s alleged rapist was. While Amy may have been certain in her
identification, there was in fact a dispute as to the identity of any purported
rapist because Stephens denied raping Amy. Additionally, Byrd’s testimony
endorsing Amy’s identification of Stephens as Amy’s rapist had the potential to
be given additional weight by the jury due to her status as a trained and
experienced professional forensic interviewer who had conducted numerous
interviews and followed the protocol in conducting such interviews as provided
in her forensic interview training.
30
The Commonwealth has not persuaded us that the deputy jailer’s
detailed hearsay account of Amy’s rape and Byrd’s testimony identifying
Stephens as the rapist are not palpable errors. No appropriate grounds justified
such testimony, the violation of our evidentiary rules is clear, and such severe
violations are quite prejudicial.
2. Vouching Statements
Additionally troubling is testimony in which the deputy jailer, Byrd and
Detective Sturgill vouched for Amy’s credibility. All three witnesses were
respected professionals, which undoubtedly could provide a reason for
members of the jury to trust their opinions. While the deputy jailer was mostly
not testifying in his professional capacity, Byrd and Detective Sturgill were
testifying as purported neutral and experienced professionals. The jury may
have especially valued Byrd’s and Detective Sturgill’s opinions that Amy was
credible.
The deputy jailer’s vouching testimony about Amy’s certainty regarding
the identity of her rapist if considered alone may not be palpable. However,
when combined with his testimony that Amy “confessed” what had happened
in conjunction with her religious beliefs, this is very concerning.
As to Byrd, the inference that Amy’s detailed account made Byrd believe
Amy could have resulted in the jurors substituting Byrd’s opinion for their
own, rather than independently concluding for themselves that they believed
Amy. While Amy’s detailed account could be a reason for the jurors to believe
31
her, such a conclusion would need to be the result of their own judgment,
rather than derived from Byrd’s.
As to Detective Sturgill’s testimony, it was even more inappropriate and
damaging than Byrd’s in vouching for Amy’s credibility. Detective Sturgill told
the jury that both the county attorney and he believed Amy’s account, with
Detective Sturgill specifically testifying “I fully believed her[.]” The belief trusted
law enforcement and prosecuting professionals who had likely seen many
similar cases was powerful. Given such testimony, there was a very real danger
that the jurors chose to substitute the judgment of the detective and the
county attorney for their own.
The jury was advised they should believe Amy because the deputy jailer,
Byrd, Detective Sturgill and the county attorney did, while Stephens stood
alone in claiming his innocence. This combined vouching testimony was highly
prejudicial to Stephens.
3. Palpable Error is Established
When we consider these errors together, we are satisfied that reversal for
palpable error is warranted because the admission of such evidence “jumps off
the page” and “cries out for relief.” Chavies, 374 S.W.3d. at 323-24 (quoting
Alford, 338 S.W.3d at 251 (Cunningham, J., concurring)). As occurred in Hoff,
we believe the combined extensive improper hearsay bolstering and vouching
testimony “tipped the scales against the defendant to the extent that the trial
was fundamentally unfair, thus rising to a manifest injustice” and requiring
reversal. Hoff, 394 S.W.3d at 378-79. Amy made a very credible witness, but
32
we cannot say the result would have been the same without the additional
testimony adding weight to her side of the credibility scale.
While the victim impact evidence alone may not have been palpable,
when considered along with the hearsay bolstering and vouching testimony, a
picture emerges of a very unfair trial. Therefore, reversal for a new trial is
necessary.
C. Additional Issues
We address Stephens’s other claimed errors to the extent they are liable
to reoccur on retrial, to provide guidance.
1. The Character Evidence Regarding Prior Violence Toward Amy
and her Family was Inextricably Intertwined with the Crime
Under these Specific Circumstances but Should Properly be
Limited on Remand.
Stephens argues that evidence of his prior bad acts in abusing Amy and
her family as testified to by the deputy jailer and Amy should have never come
before the jury as the Commonwealth failed to provide any notice of its intent
to elicit such testimony as required by KRE 404(c). Stephens also argues that
these prior bad acts were not admissible pursuant to KRE 404(b) because
Stephens’s alleged physical abuse of Amy’s mother, brother and Amy does not
make it more probable that he raped Amy. He argues that Amy’s reasons for
not wanting to go to Stephens’s home were irrelevant as she feared physical
abuse and not being raped.
The Commonwealth argues that the evidence of physical abuse was
appropriate because it showed intent, a common scheme and was inextricably
intertwined with other evidence.
33
During the deputy jailer’s testimony, Stephens failed to make any
objection to his testimony that Amy told him that she had not wanted to go to
Stephens’s home because Stephens had previously assaulted her when she
tried to intervene when he was hurting her mother and his testimony that she
had a black eye, told the counselor what happened, and that Stephens went to
jail for doing that. Stephens did object when Amy testified that he repeatedly
hit her mom and had hit her when she tried to intervene. However, this
objection only related to KRE 404(b) and not KRE 404(c).
KRE 404(b), which concerns character evidence regarding “other crimes,
wrongs, or acts[,]” provides as follows:
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may, however, be admissible:
(1) If offered for some other purpose, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident; or
(2) If so inextricably intertwined with other evidence essential to
the case that separation of the two (2) could not be
accomplished without serious adverse effect on the offering
party.
“In order to determine if other bad acts evidence is admissible, the trial
court should use a three-prong test: (1) Is the evidence relevant? (2) Does it
have probative value? (3) Is its probative value substantially outweighed by its
prejudicial effect?” Leach v. Commonwealth, 571 S.W.3d 550, 554 (Ky. 2019).
“[A]fter determining relevancy and probativeness, the trial court must weigh the
prejudicial nature of the ‘other bad acts’ evidence versus its probative value.
Only if the potential for undue prejudice substantially outweighs the probative
34
value of the evidence must it be excluded.” Id. “The prejudice must go beyond
that which is merely detrimental to a party’s case and be of such character that
it ‘produces an emotional response that inflames the passions of the triers of
fact or is used for an improper purpose.’” Kelly v. Commonwealth, 655 S.W.3d
154, 165 (Ky. 2022) (quoting Robert G. Lawson, The Kentucky Evidence Law
Handbook, § 2.25[3][d], at 135 (4th ed. 2003)). Such evidence “is, of course,
prejudicial to [the defendant] as all evidence of culpability is in a criminal
proceeding” but is still properly admissible so long as it is not “unduly
prejudicial because it is not unnecessary or unreasonable.” Luna v.
Commonwealth, 460 S.W.3d 851, 873 (Ky. 2015) (footnote omitted).
We agree that the Commonwealth should have provided notice to
Stephens that it planned to seek to admit prior bad acts testimony. It must do
so on remand.
We disagree with the Commonwealth that any past physical abuse was
tied to intent to rape Amy because there was no evidence that any of this past
physical abuse was of a sexual nature or that Stephens had previously
threatened any sexual violence. We also disagree that past physical violence
was part of a common scheme with the rape that occurred here.
However, we agree that the evidence about the previous physical
violence, while it was evidence of previous crimes and character evidence, was
at least in part not improperly admitted here because it was inextricably
intertwined with rape. This evidence explained why Amy was afraid of Stephens
but did not disobey her mother and took the pill and remained in Stephens’s
35
home as instructed. Amy’s testimony implied she believed that if she disobeyed
her mother or objected in front of Stephens that Stephens would hit her. Amy
taking the pill to avoid being hit was significant, and the pill itself was
significant as it was potentially some kind of drug which would facilitate
Stephens raping Amy or obscure her memory of the event afterwards. Thus,
Amy’s reasons for taking the pill and remaining in Stephens’s residence despite
her fears of physical violence were inextricably intertwined with the sexual
assault upon her under these facts.
As we ruled that the deputy jailer should not have testified about Amy’s
hearsay statements, he likewise should not have been permitted to testify
about Stephens hitting Amy, her brother and her mother, about Amy reporting
the incident and about Stephens going to jail for the incident. Even had this
not been hearsay, any criminal consequences were irrelevant to Amy’s fears.
We also note that other bad acts testimony was introduced and the proper
scope of that should be considered. 10
On remand, the Commonwealth shall provide appropriate pretrial notice
in conformance with the requirements of KRE 404(c) should it wish to
introduce such evidence again. The Commonwealth has a duty to conform its
10 Some of this evidence may be permissible to Stephens because it supported
his position that he could not commit the crime because he was incarcerated.
Stephens also opened the door to some evidence through his own questions. Examples
of this other bad acts evidence included that Stephens was incarcerated when
Detective Sturgill interviewed him and Amy’s mother had a DVO against Stephens (a
fact Stephens elicited during his cross-examination of Detective Sturgill, which was
then raised by the Commonwealth Attorney during the cross-examination of
Stephens).
36
actions to what our evidentiary rules require. A pretrial notice gives the parties
an appropriate framework for addressing the scope of what is proper in
advance of trial. The trial court may wish to limit this testimony to alleviate at
least some potential prejudice to Stephens and issue a limiting instruction to
the jury, if the defense agrees this would be appropriate.
2. Other Background and Religious Testimony by the Deputy Jailer
We agree with Stephens that the amount and type of background
information that the deputy jailer testified to was excessive and largely
irrelevant. The testimony regarding the deputy jailer’s religious observance was
not pertinent to the issues that the jury needed to resolve and had the potential
danger that it could provide a basis for believing the deputy jailer. While some
background information about Amy, her life and her relationship with the
deputy jailer is appropriate, the total volume and content should be more
limited in a future trial.
3. Asking Stephens to characterize the testimony of Amy as lying or
“making up a story” was inappropriate.
Stephens argues it was improper during his cross-examination for the
Commonwealth Attorney to try to get him to characterize Amy as lying about
being hit by him and asked if she was lying about her brother being hit as well.
Having reviewed the testimony, the Commonwealth Attorney asked Stephens
about Amy “making up” a story about the physical abuse of her brother after
Stephens himself stated that Amy “made it up.” It was Stephens that then
stated, “it’s a lie.” Then the Commonwealth Attorney repeated “a lie?” to which
Stephens then confirmed “yes.” The Commonwealth Attorney then asked about
37
the rape allegations, restating Amy’s testimony and asking “[t]hat was a pretty
big story for a twelve-year-old, wasn’t it?” Then when Stephens confirmed that
it was, the Commonwealth Attorney asked “[b]ut she made it up, right?” and
then later asked if Amy was a “wonderful storyteller.”
In Moss v. Commonwealth, 949 S.W.2d 579, 583 (Ky. 1997), our Court
stated plainly:
A witness should not be required to characterize the testimony of
another witness . . . as lying. Such a characterization places the
witness in such an unflattering light as to potentially undermine
his entire testimony. Counsel should be sufficiently articulate to
show the jury where the testimony of the witnesses differ without
resort to blunt force.
However, the Commonwealth can inquire as to what the defendant means by
his testimony when the version of events testified stands in stark contrast with
that to which the victim testified. See Graham v. Commonwealth, 571 S.W.3d
575, 584–85 (Ky. 2019). The wording of “making that up” and telling “stories”
when asking new questions (rather than just clarifying Stephens’s testimony) is
essentially the same as characterizing Amy as lying. This was improper. On
remand, the Commonwealth Attorney must use more care in the wording of
questions.
4. The Commonwealth Attorney Improperly Referred to Matters
Not in Evidence During the Closing Argument.
Stephens argues the Commonwealth Attorney erred by referring to
matters which were not in evidence by erroneously stating the jury had heard
that 88% of sexual abuse against children goes unreported and by stating that
Amy testified that part of her motive for reporting the rape was to protect
38
others. We agree that these statements were made in error as neither was
supported by the evidence produced at trial. Now that these errors have been
identified, they should not reoccur on remand.
5. Information about dismissed or reduced charges should not be
provided to the jury during the penalty phase.
We agree that providing information during the penalty phase about
charges that were different than Stephens’s prior convictions was inappropriate
as explained in Blane v. Commonwealth, 364 S.W.3d 140, 152 (Ky. 2012),
abrogated on other grounds by Roe v. Commonwealth, 493 S.W.3d 814 (Ky.
2015), but believe that now that this error has been identified it will not
reoccur on retrial.
III. CONCLUSION
We reverse and remand the judgment and sentence of the Harlan Circuit
Court because palpable error occurred when witnesses were allowed to testify
about Amy’s hearsay statements regarding the rape, bolster her credibility
through vouching testimony, and testify about the impact the crime had on her
during the guilty phase.
Although Stephens did not object to various errors committed during his
trial, we wish to emphasize that a defense attorney abdicating required duties 11
11 We echo the prior words of our Court: “Why defense counsel was complacent
with the prosecutor’s conduct is unknown to this Court. Nevertheless, ‘the defense
lawyer is not the only lawyer in the courtroom who has an obligation to follow the
rules of evidence and pursue the ends of justice.’” Chavies, 374 S.W.3d at 324
(quoting Alford, 338 S.W.3d at 251 (Cunningham, J., concurring)). If we had not found
such errors palpable, Stephens would have a strong postconviction claim pursuant to
RCr 11.42 for receiving ineffective assistance of counsel under Strickland v.
Washington, 466 U.S. 668, 694 (1984), because there is a reasonable probability that
39
should not result in the Commonwealth Attorney introducing evidence that is
clearly inappropriate, prohibited and will deprive the defendant of a fair trial.
As explained in Caudill v. Commonwealth, 374 S.W.3d 301, 309 (Ky. 2012):
Prosecutors have a special role in the judicial system. Unlike other
attorneys, “[a] prosecutor has the responsibility of a minister of
justice and not simply that of an advocate.” See Model Rules of
Prof’l Conduct R. 3.8 cmt. 1. The sovereign, represented in a
criminal trial by the prosecutor, has an interest “not that it shall
win a case, but that justice shall be done.” Berger v. United States,
295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935).
Commonwealth Attorneys should not rely on the hope that known errors they
make will not be considered palpable on appeal but should instead engage in
best practices. When errors in the admission of evidence are as obvious and
rampant as they are here and defense counsel repeatedly fails to make an
objection, the trial court should consider intervening in the interest of seeing
that justice is done.
All sitting. All concur.
absent such errors in failing to object to this testimony the result of the jury trial
would have been different. An evidentiary hearing likely would be required to resolve
whether Stephens’s counsel’s failure to object “was trial strategy, or ‘an abdication of
advocacy.’” Hodge v. Commonwealth, 68 S.W.3d 338, 345 (Ky. 2001). However, we
have serious doubts that a deliberate choice not to object to the widespread
introduction of blatantly improper testimony could constitute a valid trial strategy.
While sometimes counsel may not want to draw a jury’s attention to prejudicial
evidence by objecting to it, the evidence at issue here was extremely detrimental,
unequivocally inadmissible, and undoubtedly harmful.
40
COUNSEL FOR APPELLANT:
Aaron Reed Baker
Assistant Public Advocate
COUNSEL FOR APPELLEE:
Daniel J. Cameron
Attorney General of Kentucky
Rachel A. Wright
Assistant Solicitor General
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