*1 135 intent the exercise discriminatory majority would have us eradicate held and challenge. None was right peremptory Constitutional involved important court on ruling by the trial trial court to there was no by failing require the here expla- prosecution’s legitimacy ma- give requested instruction. The apparently, nation instruction is not because jority states Ap- erroneously, not believed that because necessary because did contest Woodall white, ground to pellant he had no aggravating of the facts or circum- black object to the exclusion of the sole surrounding stances the crimes. That crimi- so, juror remaining “[A] in the venire. Appellant but did contest the may be object may nal to race-based during penalty his defendant sought penalty death through per- jurors effected phase trial. He cross-examined eleven exclusions of not emptory challenges whether or presented by witnesses Commonwealth juror share and the excluded witnesses of his defendant presented fourteen Ohio, 499 U.S. the same Powers v. Appellant’s testified life race.” own who about 1364, 400, 402, 411 L.Ed.2d his had on him. 111 S.Ct. 113 upbringing and the effects (1991). 327, Mitchell, at 119 As noted 526 U.S. 1307, case, appears “it this as S.Ct. KELLER, J., as to joins dissent justice in the system, is often true criminal voir Batson mitigation due and concerned
the defendant less issues, finds the trial court’s failure but proof guilt or innocence than with [his] instruction, if give no adverse inference severity punishment.” For [his] erroneous, harmless because the defendant Appellant herein could not have the stakes to the only guilty, but admitted pled higher and Fifth been his Amendment aggravating circumstances. could not more rights impor- have been tant. disagree trial judges’
I also with the
ruling permitted was not jury specific mitigating
voir dire the about Appellant’s
factors such as mental retarda- IQ Appellant’s test
tion. While results sufficiently enough were not low to render ANDERSON, Appellant, John ineligible penalty, him the death KRS v. 532.140, facing pen- a defendant the death KENTUCKY, OF COMMONWEALTH only present alty must be allowed Appellee. IQ jury his evidence of low but must give be able to consider and effect to it as No. 1999-SC-0176-MR. Eddings evidence. v. mitigating Okla- Kentucky. Supreme Court homa, 106, 869, 104, 71 455 U.S. 102 S.Ct. (1982); Illinois, Morgan 504 L.Ed.2d 27, Sept. 2001. 722, 2222, 119 L.Ed.2d S.Ct. U.S. Denied Rehearing Jan. I Finally, challenge, the Batson this case to the trial
would have remanded at which time the hearing
court for inquiry into the
Court should conduct question there was
ultimate of whether *2 each issue take evidence. We
discovered in turn.
I. CONTINUANCE *3 are regarding argument this The facts 1, 1997, July convoluted. On somewhat Smith, Public Dupree Shannon Assistant discov- judge entered a standard the trial Advocate, Frankfort, Appel- Counsel for stating was ery order the Commonwealth lant. materials, including discovery provide III, Chandler, Attorney A.B. General evidence, to defense counsel. exculpatory Wilson, Kentucky, Michael G. Assistant later, weeks the Commonwealth Several General, Divi- Attorney Appellate Criminal January In complied order. General, sion, Attorney Office 1998, supplemental for the defense moved Frankfort, for Appellee. Counsel prior discovery based on the discovery specifically The defense asked provided. STUMBO, Justice. of the victim and hospital for all records Dr. Artie Ann jury any reports by based verdict done appeal This on for convicting an from the Circuit Bates. The defendant discovered Wayne Court the victim performed of two first-de- was on John Anderson counts of examination by through the CHR gree rape, first-degree by reading four counts sod- Dr. Bates omy, discovery provided original and one count of abuse of his sexual records order, report provided stepdaughter, C.S.B. The victim testified but no had been began discovery. rela- Appellant having sexual with the tions in 1992 ten with her when she was 17, 1998, February the trial court On years old. Anderson was sentenced motion, and made a Defendant’s heard twenty years charge, twenty for each rape entry stating, to be entered docket “Order years five sodomy, for each count of records, and doctor’s directing tapes years all to charge, for the abuse for a review of reports be sent the court run He concurrently. appealed to this been Trial date has set previously same. right. Court as a matter of order, 22, 1998 .” No such howev- for June er, four entered. The trial court instead
Appellant appeal. raises issues on was order, 22, 1998, First, May court on direct- argues Anderson that the trial entered submit to the granting ing erred motion the Commonwealth to Defendant’s (not Second, to the for an in-camera Appellant for a as- court continuance. defense review) of all the victim had showing places serts that evidence the victim’s a list 1998, 12, erroneously ex- June experience hospitalized. been On Third, aside moved to set rape under the shield law. Commonwealth cluded 22, order on the fact that pro- May he was due based claims denied spirit February cess when the court allowed it did not follow of law entry. indict- docket Common- to amend the Commonwealth counsel should asserted defense at the close of wealth ments Commonwealth’s Last, an order to the re- argues have submitted case-in-chief. Anderson specific where C.S.B. quiring agencies refused to erroneously the trial court records judgment hospitalized deliver grant a motion for notwithstand- review. In verdict, for an in-camera a motion new the court ing the newly argued defense counsel she response, a new trial based motion way had no of knowing to which agencies articulated Commonwealth, in Eldred v. order, distribute such an since the Com- Ky., 906 Further, S.W.2d 694 Ap- monwealth had not revealed where the pellant argues that the Commonwealth victim had been hospitalized until failed to exculpatory disclose information morning of June when the Common- manner, timely and the trial court wealth’s Attorney telephoned her. should granted have give continuance to During conversation, the same the Com- adequate defense counsel time to examine monwealth’s Attorney also informed de- thorough evidence. After a review of fense counsel that he did not have the record, agree. we report of Dr. possession, Bates his but Eldred, set out seven this Court fac- would fax it to defense counsel as soon as tors that should be considered a trial *4 he received it. He fax report did the court when deciding grant whether a defense counsel—at p.m. 5:30 this As was continuance: Friday, and defense counsel was out of (1) delay; The length seminar, town at a training she was not - (2) any pre- Whether there have been able to review the report Thursday, until continuances; vious June 18th. (3) litigants, The inconvenience to 18th, On June defense counsel filed a witnesses, counsel, court; and the continuance, motion for claiming Dr. (4) delay purposeful Whether the report Bates’ illegible, was but from what accused; by or caused she could tell it contradicted the findings (5) availability competent The of Dr. Cunningham, another doctor whose counsel, issue; if at report had provided been with original (6) case; complexity The of the and Hence, discovery. argued, she her trial (7) denying Whether the continuance strategy had changed. Despite her mo- would lead any prejudice. identifiable tion, began the trial on June and defense counsel orally supplemented her Id. at 699. continuance, motion for but the motion was bar, In the at case Defendant moved for denied. The trial went on planned, and continuance, 60-day length the same presented Commonwealth its entire time we minimal in Eldred. found to be case-in-chief. Defense counsel received Further, barely year case was hospital records at the end of the first the first began, old when the trial this was trial, day of whereupon it was discovered con- sought, continuance and a two-month that the victim had told a nurse that she a substantial tinuance would not have been had engaged sexual intercourse with parties. inconvenience to The someone other than the defendant. De- delay here caused purposeful, was not or fense counsel renewed her motion for a fact, by the In may argue accused. one continuance on the day second delay was by caused the Common- based on the fact that just she had re- timely wealth over turning ceived records that may contain exculpato- Further, to the defense. counsel for the
ry evidence. The trial court again denied defense stated on the record that it would her motion. be difficult to be an effective counsel be- Appellant argues discovery the trial court cause she did not receive the at addition, abused its by granting proper discretion De- time. this case fendant’s motion for a Ap- complex suspect continuance. because discov- pellant occurred, he met all ery asserts of the factors practices that and the defen- or reputation other than from the behavior clearly prejudice dant suffered not admissi- opinion evidence also the continuance. denial of ble, is admitted such evidence unless its hold trial court abused We (c) with subdivision accordance in not the continuance allowing discretion is: Accordingly, the defendant. requested (1) past behavior sexual Evidence trial. is remanded for a new case the ac- persons with other cused, upon accused offered II. RAPE LAW SHIELD accused of whether the the issue showing asserts that evidence not, respect with was or was past experience victim’s victim, the of semen alleged source erroneously rape excluded under injury; aby law. victim was examined shield behavior Evidence Bates, request Dr. doctor at the of CHR. accused is offered with the physician, examining testified at upon accused the issue vaginal opening” “loose C.S.B. alleged victim consent- whether had previously and concluded C.S.B. re- ed to the sexual behavior jury penetrated, leaving been be- *5 alleged; which an is spect to offense it must lieve that have been defendant or stated, infra, her. de- penetrated who As directly per- Any other evidence discovered, the end fense counsel at charged. to the taining offense trial, day report first a which the previously victim told a nurse that she had the Common- judge The trial sustained The boy. had sex with another defense that a objection grounds wealth’s on the regarding tried cross-examine C.S.B. injury opening loose not an vaginal was this, objected, 412(b)(1). but the Commonwealth cit- adoption under KRE Since 412, ing KRE rape KRE shield law. 412, KRE have we not considered this 412 holds that evidence of a victim’s sexual issue, that we have we do not believe and experience is not unless it is at admissible question to reach that here. Under KRS issue whether defendant is the source 510.145, Kentucky’s rape prior law shield injury: 1992, an 412 in a adoption to the KRE (a) inadmissi- history victim’s sexual was Reputation prior or Notwith- opinion. ble, law, “evidence di- any it was considered
standing provision other unless rectly pertaining to the That lan- act.” prosecution a criminal under KRS exception similar to the guage very or or Chapter attempt conspir- for 412(b)(3), “[a]ny evi- in KRE other in found acy to commit an offense defined the offense 530.020, directly pertaining to 510, dence Chapter or KRS KRS Commonwealth, charged.” In Barnett v. reputation opinion or evidence related (1992),a case decided Ky., 828 of an S.W.2d alleged to the sexual behavior 510.145, we under held evidence KRS victim is not admissible. with other than sexual someone conduct (b) Particular acts and other evidence. an alter- relevant show was accused provision Notwithstanding any other findings. for explanation native doctor’s law, prosecution in a criminal under We stated: 530.020, Chapter or KRS or KRS of coun- Upon arguments review of attempt conspiracy to commit sel, briefs, transcript and their the video Chapter in KRS
an offense defined appellant apparent it is past of victim’s sexual evidence Barnett, was convicted charge based on the child’s testi- made.” 828 S.W.2d at mony and corroborating medical tes- stand We this sound principle, timony examining physician. Ap- and no expand means want to the law pellant required to defend himself to admit more evidence necessary to without the benefit of which allow a defendant fair trial. The excep- could have explained expert’s physi- tion here limited the factual situation cal findings. child, of this case. The victim is a likely to chaste, and the Commonwealth intro- Id. at 363. testimony duced medical she very The situation at bar is similar. vaginal opening “loose caused pen- child, The victim was a unlikely and Therefore, etration.” in order for the de- partners. have only part fendant to inference that rebut the he is ner identified to the jury Appellant. person who the “loose vaginal caused Therefore, testimony from a doctor that opening,” permitted he must be to intro- C.S.B. had a “loose vaginal opening” would duce made a testimony that C.S.B. state- lead the jury to believe that Appellant ment to a had sex nurse that she must have been the penetrated one who we boy. another On this basis likewise vaginal C.S.B. caused her opening to reverse for a trial. new Therefore, Barnett, be loose. under it ap pears that the evidence of the victim’s III. AMENDED INDICTMENTS provide encounter is relevant explanation why vagi she had a loose prevented he was argues that
nal opening, and rebut the inference of preparing presenting from an ade- guilt. directly This is “pertaining to the court al- quate defense because the trial offense charged,” required by KRE Wayne lowed the Commonwealth to amend *6 412(b)(3). result, As a we find that the County Indictment No. from 97-CR-00071 trial court in refusing erred to let defense 1992,” or “on about 1994” to “on or about question counsel prior C.S.B. about her Wayne County Indictment Nos. 97- that, sexual experience. We further note CR-00072, -00073, and-00074 from read- avowal, on C.S.B. denied making the state ing “on or to “on or April about 1997” ment to the regarding prior nurse her April, about 1997.” times Several If, remand, sexual history. on again she throughout testimony, C.S.B.’s she stated statement, making denies we want to began in stepfather that the abuse her make it report may clear that the be also How- years 1994 “when ten old.” she was prior admitted as a inconsistent statement ever, actually years old in C.S.B. was ten 801A(a)(l), under KRE assuming it is 1992. The trial court allowed the Com- properly per authenticated KRE 902 and say monwealth to amend the indictment to 803(6). the requirements satisfies of KRE an “on or about 6.16 allows 1992.” RCr indictment to be amended if there will be found that
Having limited prejudice no to the defendant: allowed, statement to a nurse should be we indictment, find it necessary to comment on The may permit an information, breadth of the Rape Shield law. As we or citation complaint Barnett, stated purpose any “[t]he before verdict or amended time Rape Shield Statute ... is to insure that if or of- finding no additional different party rights does not if charged [the victim] become on fense is and substantial through If prejudiced. the admission of evidence of the defendant are not however, that justice requires, is neither material nor relevant to the the court shall him, pres- releasing was unable grant the a continuance when wealth defendant at trial. defense testimony ent The his permitted. an such amendment information, after the tri- received counsel indict The amendments al, admitted such prosecutor Appellant with charge ments here did not filed a Motion behavior. Defendant offenses, it sim any or different additional Newly Discovered Trial Based on New ply changed the Defendant dates. heard exten- judge the trial Evidence and maintains these events never oc hearing, Dr. testimony. During sive curred, in 1992 or or wheth whether in direct contra- Cunningham testified such, As April er on April 26 assistant Commonwealth’s diction prejudiced by sort of alibi defense was result, of them one Attorney. As Further, an amendment to an indictment. this, the trial indubitably lying. Despite Ap amendments were made before these motion, stating that Dr. judge denied the argues pellant’s case-in-chief. Cunningham’s testimony would not have changing on the indictment the dates verdict, entirely it was not changed unprepared.” Appellant’s “left the defense testimony. Dr. contradictory to Bates’ Brief at 26. If the defendant felt such an At Dr. Bates testified that there though it prejudicial, amendment was probability “reasonable medical not, it our conclusion that was the defense Dr. Cun- penetrated.” had been [C.S.B.] could have to continue the trial in moved “[tjoday’s ningham’s report stated revamp his effort defense. previ- exam neither rules in nor rules out FOR TRIAL Dr. Cun- IV. MOTION NEW ous believe penetration.” We testimony could have refuted ningham’s We are troubled the events which findings Dr. Bates. There is fur- took in this case place regarding sub gave a different ther evidence that C.S.B. Dr. Dr. poena Cunningham. Robert history Cunningham, to Dr. which could Cunningham subpoena was served with a impeach alleged have also been used to request. at issued the Commonwealth’s victim. During jury day selection the first trial, the Commonwealth advised the court However, reviewing after hear that Dr. to be Cunningham wTas called as a for a New Trial ing on Defendant’s Motion *7 It not
witness. until Common Evidence, we Newly Based on Discovered rested that wealth its case the defense judge that trial did not abuse believe Cunningham Dr. to going realized to a new declining grant his in discretion testify. warrant a trial. It is clear that in order to
Further, a from new defendant must make there is an affidavit doctor, that a certainty a dif claiming phone showing he received call reasonable him verdict would have been reached Wednesday prior informing to trial ferent presented. had been Carwile guilty that defendant had and that the evidence pled Commonwealth, Ky.App., 694 S.W.2d he as a Defendant v. was released witness. Dr. had, fact, We Cun 470 believe pled guilty. Appellant in never testimony, if it been pre had ningham’s intimates that the Commonwealth released trial, may in at have met this burden. Cunningham subpoena from an sented Dr. his However, case, the we sabotage question in this intentional effort to the defen- this evi have to answer is whether really case. The defense was unsuccessful dant’s “newly It is clear its on Dr. Cun- dence was discovered.” sei'ving subpoena own before reports had both ningham, and that the defense result Common- 142 held,
trial. The of Appeals Court has and subpoenaed, believe once the witness agree, to we succeed on a Motion for a is answerable to court and can only be New Trial Based Newly on Discovered excused the court. In affirming con- Evidence, “the show defendant must order tempt against absent subpoenaed the evidence was discovered the tri- Meade, Ky., witness Otis 483 S.W.2d after al.” at 470. It is defendant’s own (1972), held subpoena we that “the admission that we know he had both re- continuing created a obligation part on his ports in possession his before trial. The to be available as witness until the case newly evidence the defense claims to be was concluded or until he was dismissed discovered that the Commonwealth’s At- by (emphasis court.” Id. at add- torney deceitfully kept a from witness tes- ed). true,
tifying. if Even this does not fit the other Any require view taken would newly definition of discovered evidence. multiple subpoenas issuance a wit- Though we decline to reverse on this testimony ness whose is deemed material issue, because the Commonwealth’s re- than one party. more That means lease a witness is “newly discovered parties request more work for the sub- evidence,” find it appropriate we com- poenas already for subpoenaed witnesses on ment the behavior of the Common- by for clerk parties, other more work Attorney in appears wealth’s this case. It subpoenas, more work issue extra that he relying knew defense was on subpoe- for extra the sheriff to serve the subpoena pur- the Commonwealth’s and nas, for wit- and more inconvenience posefully did not disclose he intended his interrupted ness will from own who to, or already, Cunning- released Dr. multiple business to be served with sub- defense, ham. In own its the Common- poenas appear at one trial. Similar argues wealth that the defense cannot rely 45.01; apply in CR rules civil cases. CR on the subpoenas, Commonwealth’s 45.06. Ky., cites Calloway, Commonwealth v. above, For reasons stated case 691, 693 S.W.2d this dubious Wayne reversed and remanded however, Calloway, proposition. charges Court a new on all Circuit subpoenaed. had not
witness been opinion. accordance with this simply defendant relied the Common- Attorney’s wealth’s to make the promise C.J.; LAMBERT, COOPER and witness Unfortunately, available. wit- JJ., JOHNSTONE, concur. at “absquatulated,” ness id. KELLER, J., by separate dissents produce Commonwealth was unable to opinion, with GRAVES and quite him. That is different from situa- WINTERSHEIMER, JJ., joining that *8 where, here, was tion as the witness sub- dissent. trial, poenaed and was available for but sponte by party was excused sua the who KELLER, Justice, dissenting. the requested subpoena. majority I dissent from the respectfully I con- opinion affirm Anderson’s subpoenaed by Witnesses are would trial did parties, by my opinion, but the circuit the court court clerk. victions. 7.02(1). Indeed, re- subpoena by denying not err either Anderson’s RCr the issued Cunningham by quest by preventing Dr. was for a or issued the continuance Court, Wayne of albeit from the child questioning Clerk Circuit at defense counsel Ac- request prior history. victim about Commonwealth. We her
143
which
at
express my
a
effect”
sacrifices
separately
I
ates
“domino
cordingly, write
original
II
trial
concerning
views
Parts I and
least
two trial dates —the
date,
with
majority opinion. Although
longer
reassigned,
I concur
can no
be
which
majority’s Part IV conclusion that
the continued matter
and the date which
abuse
discretion
trial court did not
its
delays justice for oth-
is rescheduled —and
a
Anderson’s motion for new
denying
court.
litigants
er
before
disagree
majority’s gratuitous
I
with the
no
Recognizing that this Court has
busi-
wit-
concerning
release of
discussion
in the
micro-managing docket control
ness
I
Accordingly,
subpoena.
nesses under
courts,
held
is fun-
“[i]t
we have
that
trial
separately concerning
write
Part
IV
right
judge
a
to have
damental for
express my opinion that the Com-
issues to
a
grant
it is
appropriate
when
decide
our
authority
had the
under
monwealth
case.”2 Accord-
given
continuance
Cunning-
rules of
to release Dr.
procedure
of a
ingly!
granting
continuance
“[t]he
subpoena.
ham from its
always
in the sound discretion
trial
appears
has
judge, and unless it
that he
I. CONTINUANCE
discretion,
his determination
abused
trial
Continuances are the bane
a
will not
disturbed on
These
appeal.”3
court’s efforts to maintain a current
trial
9.04,
within RCr
principles are embodied
and,
calendar,
if freely granted,
quick-
will
governs
granting
of continu-
which
unmanageable backlog
to an
ly lead
ances:
Although
majority appears
cases.
court, upon motion
and sufficient
otherwise,1
a
only
believe
trial courts have
party, may grant
dates,
cause shown
either
limited number
trial
of available
hearing
or trial.
postponement
a
on trial
postponements can wreak havoc
a
for a
post-
A
the defendant
reshuffling
court’s calendar. The
motion
required
ere-
on account of the absence of
typically
ponement
eve-of-trial continuance
case,
("This
majority's
telling.
penalty
1. The
was a
which
rhetoric is
See Ma
case
death
Id.).
135,
(2001)
complex.”
jority
it more
Opinion
factor alone makes
at 63 S.W.3d
138
(“[Tjhis
barely year
case
a
old when
Commonwealth,
Brutley
Ky., 967
2.
v.
S.W.2d
added)).
(emphasis
began
trial
....”
Fur
Id.
20,
(1998).
23
thermore,
majority's
characterization of
sixty-day
as
continuance
"minimal” on
Commonwealth,
Estep
Ky., 663
v.
S.W.2d
language
basis
from
v.
Eldred
Common
213,
v.
See also Johnson
Com-
216
wealth,
(1994)
Ky.,
ignores
6. supra Eldred v. note 5 at counsel, concerning Appellant’s case counsel, potential substitute as would arise if Co., attempt 7. See were Thurman Meridian Mutual Ins. there to withdraw counsel Ky., 345 S.W.2d eve of trial on the as a result of a breakdown *10 has ever articu- counsel by trial nor analysis appellate the driving anointed result serious, could unexceptional-in- why but trial counsel labeling any lated reason child sex terms-of-preparation-required, the this evidence between prepare for “complex.” majority case The abuse beginning of the and the end of conference decreeing, sup- no concludes with more Appellant that he trial. asserts the While port Appellant’s allegation, naked expert an additional time to secure needed clearly preju- that “the defendant suffered results, Dr. Bates’s witness to contradict from the denial the continuance.” dice the defense help cannot but notice we in face Each of these conclusions flies the Dr. subpoena no to contact or made effort allegedly gives this of the discretion Court already expressed Cunningham, who trial courts. writing. contrary findings his find trial denials of I the court’s dem- do I believe that Nor motions to be- proper Anderson’s continue justify to cause” onstrated “sufficient I cause do not believe Anderson demon- the continuance on basis Common- justify “sufficient to the strated cause” C.S.B.’s med- tardy disclosure of wealth’s The crux pre- continuances. of Anderson’s Defense counsel informed ical records. trial motion for continuance was the Com- trial court on the record that she Attorney’s alleged to monwealth’s failure documents, these and had reviewed provide report Dr. Bates’s to defense coun- permitted counsel to recall wit- court However, timely in a sel fashion. them regarding nesses and cross-examine supplied report to de- Commonwealth found within these documents. matters fense counsel within the time constraints supplemental in the trial court’s outlined order, discovery and faxed report II. RAPE SHIELD LAW it day to defense counsel the same today’s majority effect practical At-
was received the Commonwealth’s protection Kentucky’s opinion is that torney days prior scheduled —ten longer “Rape Law” is no available Shield Although trial. defense counsel asserts ma- young Regardless victims! copy provided faxed to the de- they jority’s lofty declaration that stand legible, fense was not counsel Dr. found that the victim “does principle” the “sound findings enough Bates’s clear to describe through the party on trial become five days them the Court before trial mate- admission of evidence that is neither moving first when a continuance. made,” the charge rial nor relevant argued Anderson’s trial counsel majority concludes out-of-town, three-day training intervening by failing to allow defense counsel erred prevented reviewing seminar her from regarding her question C.S.B. trial. report days until four before the result, In order to reach this behavior. initially Although the trial court heard majority exception creates a new discovery supplemental defense motion for age KRE 412—the the victim —which orally ruled favor of the defense way widespread admis- paves months before trial and entered four irrelevant evidence sion of immaterial and a full month before written order past sexual behavior whenev- of children’s scheduling first defense counsel raised child support the physical findings er pre- conflict connection with Anderson’s victim’s account. trial motion for continuance. Neither Id.). client.” of communications between counsel *11 146 412(b)(1)
KRE 412 incorporates policy the sound ble KRE under as “evidence of supporting reasons the reciprocal Federal past sexual with a person behavior other Rule10 and balances competing interests accused, offered the accused by “protect[ing] alleged victims of sex upon the issue of whether the accused against crimes unfair and unwarranted as- not, was or was respect with to the al- saults on character depriving without crim- victim, leged the source of semen or inju- inal of defendants evidence needed for a 12 412(b)(l)’s ry.” Although KRE “source proper against charges defense involving of injury” exception semen or was the 11 412, therefore, such KRE crimes.” gen- only upon argued basis which defense erally prohibits evidence of alleged sex evidence, for the admission of this the ma- crime past victim’s sexual behavior unless jority sidesteps question of first im- the evidence meets one of three excep- 13 pression and instead finds this evidence (b) tions set forth in subsection of the rule. 412(3)’s admissible under KRE my residual opinion, In evidence that C.S.B. told a nurse that she had previously exception “any had sex other evidence directly boy another does not fall within an excep- pertaining charged.”14 to the offense Re- tion. Commonwealth,15 lying on Barnett interpreted exception’s which argued
Anderson’s trial
broader
counsel
to the
trial court that the evidence was
statutory predecessor,16
majority
admissi-
con-
10. See 2 Weinstein's
Ky.,
Federal Evidence
15.
We that a dence compelling argu- prosecution’s to rebut the physical ... ment is that it principles defies fact evidence whenever the probative relevancy past to allow sexual behavior value of the sexual behavior evi- evidence to rebut physical evidence of a substantially dence was not outweighed *13 consequence that injury constitutes an by its unfair prejudicial effect.... (for example, evidence that the defen- chose, however, Congress to enact the nose), dant complainant’s broke the injury Rule 412 exception prohibit and prohibiting while it for evidence of a past sexual behavior in evidence numer- physical consequence that does not con- ous situations where such evidence (for stitute an injury example, evidence highly probative. would be Admittedly, that the defendant caused a stretching by distinguishing physical between con- of complainant’s the hymen). The de- sequences injuries that are and those fendant’s need to introduce source evi- not, Congress are did not select a equally strong dence is regardless of point relevancy solely based on consider- type physical what of consequence the ations at which to draw the line of ad- prosecution contends the defendant missibility.21 caused allegedly when he raped the 412(b)(1) Although that fact that KRE Morever, complainant. it can be argued identically worded to its federal counter- type physical consequence of in part suggests that we have reached a simi- issue bearing has no on probative lar regarding conclusion in- competing value of past sexual behavior evi- terests, majority finds a different dence. exception entirely authorizes the introduc- think We evidentiary while these tion of evidence relevant to demonstrate persuasive concerns have force when any physical source of manifestation of context, viewed in an they isolated do child majority sexual abuse. The thus not withstand the fact that when Con- finds such evidence admissible on the basis gress created injury exception exception despite specific of a residual Rule it decided to exclude sex- exclusion for source evidence which limits ual behavior evidence in numerous situa- relating itself source evidence to semen tions where these evidentiary same con- injuries. and “sparing This is not the and cerns would dictate that the evidence be careful” use for KRE contemplated admitted. Congress When enacted the 412(b)(3)’sexclusion: injury exception Rule it had to 412(b)(3) KRE authorizes the use of weigh competing interests: On one hand, evidence of past sexual behavior of a defendant’s need to introduce evidence; hand, victim when it is “directly pertaining relevant the other complainant’s the offense charged.” interest in not The drafters of having history her sexual the new rule publicly provided following disclosed and ex- society’s having planation exception: recog- concomitant interest for this “It rapes reported effectively prosecut- difficulty anticipating every and nizes the of interests, balancing ed. In possible these circumstance in which evidence Con- gress range faced a prior alternatives. At may sexual conduct have a nee- Id. at 606-7. contact with ongoing sexual gaged role a case other essary proper and phy- sibling was not revealed alleged as victim’s her evidence words, in- during it is a safe- examination and character.” other his sician “care- to be ty valve that is administered This revelation terview victim. violating without fully sparingly physician quali- have caused the may unwar- objective protecting against branding appellant his or omit fy assailant,24 of an on the character ranted attacks alleged victim.”22 Dr. Here, examining physician, case, the circumstances Under had a “loose Bates, testified C.S.B. conduct prior C.S.B.’s a find- did make opening,” but vaginal necessary proper “a does have activity or frequent attribute ing of role,” majori- I agree and cannot with the to sexual intercourse condition such 412(b)(3) KRE contem- ty’s conclusion that Further, pro- Anderson Appellant. *14 exception source evi- plates broader the demonstrating no evidence duced in specifically dence than the one outlined upon in the statement suggested conduct KRE(b)(l). to Anderson wished cross-examine which majority’s The erroneous construction produced physical could have these C.S.B. 412(b)(3) to appears the KRE exclusion v. As in Violett Common- findings. in holding from application stem its the wealth, connection be- “there is no direct factually to Barnett the distinct situation activity prior sexual tween the evidence of “examining now before us. In Barnett the testimony medical directly challenged physician findings ... testified to of chron- In that it is respect, at trial. introduced and, exception, ic sexual contact without distinguishable from Barnett clearly the identified as appellant perpetrator properly refused ....”26 The court majority such contact.”23 The Barnett question C.S.B. allow defense counsel found the admissible proffered evidence history. alleged prior her about largely upon because it cast doubt the physician’s identification of Barnett —an III. RELEASE OF WITNESS identification the Court characterized as majority’s IV I concur with the Part “branding”: within that the trial court acted conclusion concerning Omission mo- denying in Anderson’s its discretion ongoing activity between I write separately a new but tion for complaining witness her brother misconception the majority’s to address devastating appellant light in only may trial courts release wit- testimony examining physi- from subpoena. nesses chronic expressed findings cian who and, does reality, the circuit clerk objection,
sexual contact without the clerk subpoena witnesses. While guilty party. as the appellant identified subpoena a wit- possibility technically that the had en- issues the The victim Lawson, § admitted ob- supra note 13 at 2.30 at 113. that the evidence was "without 22. jection.” Commonwealth, supra Barnett note 15 at 23. added). (emphasis majority portion 24. 362. The Barnett found examining testimony physician’s which sig- Ky., perpetrator as the 907 S.W.2d identified the 25. it enough nificant to mention twice in a six paragraph opinion times Id. at 776. note both in actual practice, merely clerk compulsory and he did not have
ness,27 process,32 signs the subpoena gives right rely upon blank and additional subpoenas it to issued and served attorney. requesting attorney Commonwealth. Since Dr. Cunningham was subpoenaed then fills the blanks and secures service only by Commonwealth, witness Accordingly, it is the subpoena.28 Commonwealth was authorized to release parties who, through their —not clerk— him from subpoena. its attorneys, subpoena witnesses. reasons, For the above-mentioned I dis- subpoena The information on a includes sent from majority opinion and would the name of requesting attorney, to- affirm the judgment Wayne Circuit gether with her telephone his or number,29 Court. and often request for the subpoenaed attorney. witness to call the subpoena A GRAVES, WINTERSHEIMER, person JJ.,
“commands [the] whom it join this dissent. directed to and give attend testimony at the time and place party there- and/or It is for these reasons specified.”30 party subpoena “[a] who has caused a may
to be issued excuse the witness appearing pursuant
served from to its sub- *15 31
poena.”
If Appellant desired the attendance of
Dr. Cunningham at he had the right
to secure his attendance by having sub-
poena issued and upon served him. Appel- right
lant’s so to do satisfied his right to 7.02(1) ("A subpoena 27. See testimony RCr give shall be is- to attend and at the time and Id.). Id); 7.02(3); sued place specified clerk therein.” RCr ("5. n (Subpoena) testily Form To AOC-025 of_” Id). ("The in behalf subpoena, 28. See Id. clerk shall issue a blank, signed party but otherwise in to a it, Practice, requesting Abramson, shall fill in Kentucky who the blanks be- 31. L. Criminal Id.)-, 7.02(2) ("A (3d fore it is served.” RCr § sub- Practice and Procedure 23.16 ed. poena WEST) ("Because for an unmarried infant ... subpoena shall com- contains the person mand each to whom it is directed to seeking testimony, party name purpose attend with the infant party appears presence be able to waive the for testimony giving place at a time and 1). of the witness.” n. infant the Id. party specified." (emphases therein Id. added)); 7.02(4) ("A subpoena may RCr 380, Sepcich, 32. See State 473 So.2d 386 by any served officer whom a summons ("The (La.Ct.App.1985) right defendant’s Id). might be served.” right compulsory process request is the subpoenas right for witnesses and the to have Forms, Appendix 29. See RCr Official Form requested subpoenas issued the court. (Subpoe- Court of Justice Form AOC-025 However, cannot claim defendant that he na) (hereinafter (Subpoe- "Form AOC-025 compulsory right process was denied the na)”). obtaining witnesses on his behalf where subpoena he does not seek to the witnesses.” 45.01; (A 7.02(1) (citations omitted); subpoena 30. CR RCr "shall Dean v. Common- wealth, person Va.App. command each to whom it S.E.2d is directed