*1 Roy APPLEGATE, Appellant, Kentucky,
COMMONWEALTH
Appellee.
No. 2007-SC-000444-MR. Kentucky.
Supreme Court
Oct. 2009. *2 General, Conway, Attorney
Jack Joshua General, Farley, D. Attorney Assistant Of- Appeals, fice of Criminal Office of the At- *3 General, Frankfort, KY, torney Counsel Appellee. for Opinion of the Justice Court SCHRODER.
Roy Applegate appeals May from the 2007, judgment of the Lewis Circuit Court convicting rape him of in the degree, first sodomy in the degree, first and incest. Appellant thirty years was sentenced to imprisonment, appeals and to this Court as right.1 a matter of
BACKGROUND in Appellant County, lived Lewis Ken- tucky his daughter, with HA. HA testified that her father sexually begin- abused her ning years when she was five old and continued until October HA 2005. any could not recall specific incidents of old, prior turning years twelve but testified that her father in engaged activity repeated this on occasions between the time she five years was old and the years time she turned twelve old. She wiped also testified that he his semen on a sleeping blue bag. These incidents formed for basis Counts I and II of the indict- ment.
HA specific did recall one incident on (after 21st, October 20th or she was twelve) already Appellant where “did what usually he did.” HA testified that around 9:30 in the me evening, go “he made and take off my clothes.” She then described sodomy, acts of intercourse and which she up. said made her throw HA also testified Drake, Jamesa J. Assistant Public morning Advo- “at three o’clock he cate, Advocacy, of Public Department up would come there and wake me KY, Frankfort, Counsel for make Appellant. again.” me do it all over 110(2)(b). Ky. § 1. Const. 3) 26, 2005, language October admitted indictment
On for II, Health for the for to a worker Cabinet Counts combined with the attempted Services that he had Family theory case, Commonwealth’s HA’s in anal sex but “couldn’t engage with testimony, and the trial jury court’s in- in.” that he it He admitted had en- get structions created the possibility of a HA activity beginning sexual gaged unanimous; with verdict not that was eight years HA when was seven or old. 4) the in the language indictment performed He that he oral admitted had III, Count combined the Common- performed HA HA had sex on and that case, theory wealth’s of the HA’s testimo- *4 on him. He stated that he did not oral sex and the ny, jury trial court’s instructions having sexual intercourse with HA begin created the of a possibility jury verdict prior meeting until six months to this unanimous; was not that However, Appellant October 2005. when 5) the trial by denying court erred Appel- trial, any at he wrongdo- testified denied right lant to cross-examine two wit- ing. himself; nesses and trial, Dr. Leroy At Gallenstein testified 6) by the trial determining, court erred had and that he examined HA found that presence jurors, of status of two hymen and that her was not intact her experts. witnesses as had been vagina penetrated. Sabrina Christian, a for the Ken- biologist forensic follow, For the affirm reasons that we State tucky Police Central Forensic Labo- Appellant’s convictions and sentence. a ratory testified that she examined cut- bag which
ting sleeping from was ANALYSIS from Appellant’s seized home and se- sleeping extracted bag men from the Sufficiently The A. Indictment Stated Appellant’s matched DNA. An Offense And Did Not Violate Separation The Of Powers jury Appellant guilty rape The found of sodomy in degree, argues in the first the first Appellant the trial degree, and incest. The recom- by entering court erred convictions on mended, imposed, and the two con- I court and II of the indictment Counts because twenty years separation current sentences of for the the indictment violated the of rape sodomy and convictions and a consec- powers Appellant doctrine. concedes that years utive sentence of ten for the incest claim of not preserved this error was for conviction. appellate review and seeks review of this rule, error palpable issue under the RCr appeal, Appellant allega- On raises six prevail unpreserved To on an 10.26. claim error: tions of rule, error palpable under the error 1) language in the indictment for Appellant injus must show that “manifest I II Counts failed to state an offense tice has from the error.” resulted RCr sepa- and therefore violated the doctrine only if 10.26. We will reverse a substan of powers; ration possibility tial exists that the result of the trial would have been different without the 2) language in the indictment alleged error. Brock I and II left unable Counts to 24, protect against jeopardy double in the fu- ture; indictment Counts and II of the read: jury instruc- rape, with indictments County, Ken- The Lewis I: COUNT worded, identically for each count that from tions Jury, charges
tucky, Grand
pen-
felonious sexual
2005,
20 counts of
9,
July
Lewis
July 1998
etration,
identically
was also
each of which
above named de-
Kentucky, the
County,
court
Id. at 628.
Valentine
worded.
the of-
unlawfully committed
fendant
“[sjtates have the authori-
en- noted that while
RAPE
1ST DEGREE
fense of
a
regarding
criminal statutes
ty to enact
a
intercourse with
in sexual
gaging
‘continuing course’
or a
old,
‘pattern’
years
AGAINST
child under
power
have the
abuse[,][t]hey do not
THE
DIGNITY OF
AND
THE PEACE
pattern
prosecute one for
OF KENTUCKY.
COMMONWEALTH
simply charging a defendant
through
County, Ken-
The Lewis
II:
COUNT
times over.”
many
the same basic offense
Jury, charges that
tucky, Grand
prose-
concluded the
Id. at 634. The court
July
Lewis
July 1998
factually
failure to differentiate
cution’s
above named de-
Kentucky, the
County,
twenty
in each set of
the offenses
between
unlawfully
the of-
committed
fendant
*5
it
in that
de-
process
violated due
counts
by
DEGREE SODOMY
fense of 1ST
adequate
both
no-
the defendant of
prived
intercourse
in deviate sexual
engaging
pro-
and sufficient
tice to defend himself
old,
years
12
a ehild under
with
636.
jeopardy.
Id. at
tection from double
AND DIGNI-
AGAINST THE PEACE
only one
the court allowed
Accordingly,
OF
THE
TY OF
COMMONWEALTH
one conviction of
rape
conviction of
and
KENTUCKY.
stand,
to
and
penetration
felonious sexual
the indictments
argues that
Appellant
Id. at
the other 38 convictions.
set aside
II could be read as
for
and
Counts
637.2
sodomized
raped
that HA was
alleging
times. Because
number of
unspecified
Valentine,
present
in the
Unlike
a
Kentucky legislature has not enacted
the
mul
did not issue
case the Commonwealth
criminalizing
pattern
“a
specifically
statute
same
indictments for the
tiple, identical
abuse,”
that the
Appellant argues
of sexual
charged
Appellant
simply
was
offenses.
usurped
Legislature’s
the
prosecutor has
count
rape,
single
count of
a
single
with a
of
by “creating a new crime out
power
incest.
single
count of
sodomy,
of
a
cites the federal
Appellant
whole cloth.”
Further,
child
necessary
not
that a
it is
Konteh,
v.
corpus
habeas
case Valentine
dates
give specific
victim of sexual
(6th Cir.2005),
argue
that
318, 327 (Ky.2006) (“Appellant could de B. Indictment Was Sufficient And fend himself from jeopardy double in any Appellant Subject Does Not Render prosecution future ... pleading his con Jeopardy To Double viction in the judice case sub and requiring the subsequent prosecution to establish a that argues the trial commission.”). ... different time frame by entering court erred convictions on I and II of the indictment Counts because C. The Trial Court Did Not Err In Its lack specificity in the indictment Jury Instructions Regarding To The protect him double jeopardy.
fails
Unanimity
Appellant concedes that this claim of error
not preserved
appellate
was
review and
Appellant argues
the trial
seeks review of this issue under the palpa
court’s
instruction to the
their
*6
rule,
error
Having
ble
10.26.
RCr
re
verdict “must be unanimous” was
pre
not
issue,
opine
viewed the
we
that this issue
enough
they
cise
to ensure that
actually
yet ripe
not
appeal.
for
agreed
“just
about
it
what was that defen
Appellant
dant did.”
maintains that be
jurisdic
This
not have
Court does
the
jury
cause
indictment and
instructions
tion to decide a question unless there is a
alleged a range of dates wherein the of
justiciable controversy
real and
involving
occurred,
fenses
there
way
that
is no
to
specific rights
specific parties.
of
Com
know if
jury agreed
specific
the
on a
inci
monwealth ex
v.
rel. Watkins Winchester
of
Appellant
dent
sexual abuse.
concedes
Co.,
420,
Ky.
Water Works
303
197 S.W.2d
that this claim
preserved
of error was not
771,
(1946).
772
City
See also Veith v.
of
appellate
for
review and seeks review of
Louisville,
295,
(Ky.1962)
355
297
S.W.2d
rule,
this issue
palpable
under the
error
(quoting Black v.
Corpora
Elkhorn Coal
RCr 10.26.
tion,
588,
481,
Ky.
233
483
(“The
(1930))
not
A
specula
court will
decide
criminal defendant
is entitled to a
rights
may
tive
or
which
or may
§
duties
not
Ky.
unanimous verdict.
Const.
7
in-
as
future,
only
Commonwealth,
arise
the
rights
terpreted
but
v.
by Cannon
50,
(1942);
duties about which
is a present
Ky.
there
actu
291
272 her football playing of first- He contends that
first-degree sodomy, seven counts
And,
him that
hymen.
busted her
I told
abuse and one count
inde-
sexual
degree
any
I
basis to
did not see
reasonable
All
the
Id.
seven of
sexual
exposure.
cent
inquire
that so
Number
about
didn’t.
identical. Id.
instructions were
jury
two,
who
contending
he’s
that the doctor
it was error to
held in that case that
We
up
That
testified made
records.
instructions,
jury
seven identical
submit
before.
doctor
had seen [HA]
never
multiple
case of
that
and instructed
gonna
And I
him that no doctor is
told
offense,
jury in-
of the same
counts
to
losing
that
do
and risk
his license
contain
sort of
must
some
dis-
structions
to
testify.
come here and
And I refused
may
so that the
de-
tinguishing facts
that.
questions
ask
about
it is satisfied
termine whether
Appellant’s request
prove
which
The trial court denied
existence
facts
evidence the
he did
to cross-examine witnesses because
separate
offenses oc-
that each of
Id,,
degree
have
“not
not
a law
and was
important
curred.
at 818. More
to
to
case,
questions
trained
ask
on cross-examina-
held
present
this Court also
tion,”
agreed
give
and Appellant
to
his
unanimity
with
problem
there
no
re-
was
attorney questions to ask
him instead.
single sodomy
to
instruction “be-
gard
only
charged
cause
was
with
one
Harp
The trial
rationale for
court’s
sodomy.
precedent
Our
does not
count
cross-
allowing Appellant
perform
not
a
that a trial court is
support
conclusion
examinations,
Appellant
not
was
a
any
required
identifying
include
eviden-
lawyer,
not
A
defen
was
sound.
criminal
tiary
in which
de-
detail
instructions
has a
to self-
right
dant
Sixth Amendment
count
charged
only
one
fendant is
representation.
California,
Faretta v.
n.
Id. at 821 25.
offense.”
806, 821,
L.Ed.2d
U.S.
95 S.Ct.
(1975).
A criminal defendant also has
hand,
In the
at
was not
case
right
self-repre
a state constitutional
charged
multiple
with the same offense
*7
representation under
hybrid
sentation and
Rather,
charged
times.
he was
one
the Kentucky
Section Eleven of
Constitu
sodomy,
count of
one count of
rape,
Barker,
692,
tion. See
v.Wake
514 S.W.2d
Accordingly,
count
incest.
no
one
of
error
(Ky.1974).
695-96
As the
States
United
occurred.
recognized in
Supreme Court
Faretta:
It is
criminal
undeniable
most
D. The
Not Err
Trial Court Did
In
prosecutions
could better de-
defendants
Refusing Appellant’s Request
to
than
guidance
fend with counsel’s
Two Witnesses On
Cross-Examine
their own
And al-
unskilled efforts....
Day
Of Trial
Second
though may
he
conduct his own defense
detriment,
ultimately to his own
his
the trial
Appellant contends
choice
be honored out of “that
must
deprived
of
to
right
court
him
his
self-
respect
which is
for the individual
him
representation by
to allow
refusing
to
lifeblood of the law.”
cross-examine witnesses. On the second
(internal
trial,
834,
day
422
of
notified
court
U.S. at
273 However, Appellant’s request trial court’s decision unless it was an abuse timely. was not to cross-examine witnesses of discretion. “an make Kentucky, may
In accused a regard to With cross-examination counsel, specifying waiver of limited may the court limit a defendant’s desires, he and he extent services then contact with the victim. Even if a defen duty to will is entitled counsel whose be granted right dant is to cross-examine rendering specified to kind confined witnesses, there is no (within, course, right constitutional services the normal services).” personally to cross-examine the Wake, victim of scope of counsel 514 Commonwealth, his crimes. Partin v. However, 168 S.W.2d at 696. defendant who 23, counsel, (Ky.2005). S.W.3d 27 Particularly right wishes to waive his or abuse, waiver, the case of sexual courts have wide make a limited must do so in a ly held that it is not error restrict a timely delay manner so as not to cause a Commonwealth, defendant from personally questioning the proceedings. Soto v. 139 See, e.g., Maryland victim. v. 827, Craig, 497 (Ky.2004) (citing S.W.3d 857 Robards 836, 851, (6th 3157, Rees, 379, U.S. 110 111 S.Ct. L.Ed.2d v. 789 F.2d 383-84 Cir. (1990); 1986)). 666 v. Murray, Fields 49 F.3d self-representation A demand for (4th Cir.1995). 1024, 1034 if timely meaningful made “before trial proceedings begun,” have i.e. before the Gallenstein, With Dr. regard Appel- Soto, jury is selected or 139 empaneled. presented lant no basis for his beliefs to (quoting S.W.3d at 857 United v. States attorney the trial court. His own acknowl- McKenna, (9th 830, 327 F.3d 844 Cir. edged Appellant’s that he knew of beliefs 2003)); Young, See also United States v. Dr. about Gallenstein and had refused to (11th Cir.2002)). 287 F.3d 1354-55 questions subject ask on the because he
In Moore had doing no basis for so. that a self-representa we held motion for Accordingly, while the trial court’s rea- morning tion filed on the of trial was not unsound, soning was there were never- timely. legitimate for denying theless reasons may grant untimely The trial court Appellant’s request to cross-examine the request, but that decision is within the sole Therefore, witnesses. we conclude the Soto, discretion of the trial court. trial court not its discretion in did Robarás, (citing S.W.3d at 857 at F.2d request. denying Appellant’s *8 384). such, As we will not disturb the decision of the trial court unless “the trial E. The Trial Determination Court’s Of judge’s arbitrary, decision was unreason Witnesses As Status Of Two able, unfair, unsupported by legal or sound Jury’s Experts In The Presence Was principles.” English, Commonwealth v. Harmless Error 941, (Ky.1999). 993 S.W.2d 945 Solo,
As in where the trial Appellant argues defendant did not that the that request closing argument by determining, pres he make the court in the erred closing guilt phase until the of the the jury, prosecu of the ence of the two of trial, Moore, pro- experts. where the motion to tion’s witnesses were On the first trial, pro morning day ceed se was not filed until the called Dr. the Commonwealth trial, testify. of the Appellant’s request repre- Leroy stating Gallenstein to After qualifications, following exchange sent himself in a limited manner the was not his Therefore, timely. we will not disturb the occurred:
274 persuade jurors weight signifi- we Dr. of the or Judge, submit
“PROSECUTOR: testimony of the expert. an cance to be attached to Gallenstein as ” witnesses.... Edwards v. Common- Objection? COURT: wealth, (Ky.1977). S.W.2d Yes, Judge, DEFENSE COUNSEL: at trial presented Based on the evidence record, object. I for the opportunity to cross- and defense counsel’s COURT: Overruled.” witnesses, the expert examine the error trial, day of the Common- On the second unduly prejudicial. was not testify. Sabrina Christian to wealth called stating qualifications, After her the follow- CONCLUSION exchange occurred: ing reasons, hereby For the above stated we Judge, we would PROSECUTOR: sub- Appellant’s affirm convictions and sen- expert mit as an witness Ms. Christian tence. in this field. Objections? COURT: MINTON, C.J., All sitting. Yes, Judge, DEFENSE COUNSEL: SCOTT, ABRAMSON, NOBLE, I object. the record VENTERS, JJ., concur. gentle- COURT: Overruled. Ladies and CUNNINGHAM, J., only concurs in result men, will an the witness be considered by separate opinion. in her expert field which means she is qualified give opinion the evidence CUNNINGHAM, J., concurring in give. which she is about to Which we only: result any treat other evidence. as hereafter, exception stated I With Appellant maintains ma- concur with the excellent work of the credibility court’s statements bolstered jority. witnesses, of these two as well as the commit- judge do not believe the trial credibility testimony because them expert any handling ted error his testimony. corroborated her The determi fact, I think witnesses this case. In expert nation that a witness is an should quali- were procedure experts which jury. the presence
be made outside
of the
Therefore,
entirely appropriate.
fied was
Commonwealth,
Luttrell v.
apply
there was no need to
the harmless
(“Great
(Ky.1997)
care
should be
error standard.
judge
exercised
a trial
when the deter
issue,
majority
upon
mination
made that a
has been
witness is
On this
leans
expert....
rulings
citing
an
All such
be weak reed in
the case of Luttrell v.
should
hearing
made outside the
of the
“[i]f obviously credibility enhances the
sion jury.” eyes
that witness in the of the Id. course, exactly qualifi-
Of that is what the expert supposed of an is to do. It
cation that witness the elevated status of
affords credibility that he or she is entitled to so JASPER, LIFESTYLES OF an opinion. offer INC., Appellant, qualifications where Except cases are stipulated, experts always qualified are jury. Even the sponsoring par-
front of (Now Nikki GREMORE Nikki ty may stipulate quali- not to to the choose Acuff), Appellee. jury fications in order that has the No. 2008-CA-001396-DG. qualifications opportunity to know of the judge credibility that expert’s accord- Appeals Kentucky. Court of ingly. Equally important right is the opposing opportunity to have the party Nov. 2009. question qualifications these before a jury-
If the witness re- meets threshold
quirement expert, of an it is than less apprised
candid for the not to be Otherwise,
that status. it can lead to con- friendly neighbor
fusion. The is not al- opinion an give danger
lowed to as to the smelled; gas
of the leak she but
stranger from out of town with a briefcase only give opinion,
is able to not but day subject.
offer a half discourse on the many
It my opinion judges is trial Kentucky expert deal with at witnesses
jury trials in the same or similar manner qualifica-
as was done this case. The
tions, qualifications, or lack of are properly jury. proper
aired before the certifi- judge
cation of the witness is made jury.
in front of the It further appropri-
ate, in my opinion, for the court to inform juiy exactly what all the fuss is about. they
The fact that expert are told that *10 only give
status allows witness to
opinion, validity opinion and the of that