*1 451 under here was due at issue prejudg- amount denying in its discretion abuse be- Nucor, and been fixed—even 145. contract had at ment S.W.2d interest. invalidated) (which at- fore lien reasons, opinion of foregoing For the tendency of the courts is tached. “[T]he is Appeals the Court of reversed in accordance allow interest charge and is Circuit Court judgment of the Jefferson accomplish equity, to principles with reinstated. case.” particular in justice each the amount issue It is evident that LAMBERT, GRAVES, ROACH, C.J.; unpaid fixed con- liquidated, was a here JJ., WINTERSHEIMER, concur. liquidated remained amount which tract J., SCOTT, in and dissents part resulting concurs Any throughout. confusion separate opinion, part by and cross-claims the other claims J., COOPER, joining. En- unliquidated. 3D amount render the to pre- been entitled terprises should have SCOTT, Justice, Concurring Part and amount. judgment interest on liened Dissenting Part. J., COOPER, joins opinion. this except I agree majority opinion with the prejudgment as to the interest respectfully I must dissent. undisputedly liquidated
The amount was How- filing time of the of the lien.
ever, majority now holds the known unliquidated funds to as a result
liened be DICKERSON, Appellant, counter-claims of the various claims and Robert A. parties during the course asserted v. litigation. of the Kentucky, COMMONWEALTH concedes, As miss- majority but then Appellee. es, Kentucky is longstanding rule 2003-SC-0543-MR, No. 2003-SC- prejudgment as a interest is awarded 0833-TG, 2003-SC-0834-TG. demand, right liquidated matter of on a a matter within discretion of Kentucky. Supreme Court unliquidated or de- Oct. 2005. Court, Nucor, gave spe- mands.1 This liquidated examples cific amounts. due, an past include “a bill or note
These account, an open due on an or
amount price.”2 gener- fixed contract “In
unpaid
al, certain or fixed ‘liquidated’ means made by opera-
by agreement parties
tion of law.”3 Mechanical, Co., Naylor Industri Inc. Corp. 4.Reliable v. General Electric Nucor 1. Inc., Services, (Ky. al App.2003). Id. at 141.
2. Id. *4 Robinson, Gail Assistant Public Advo- cate, Department Advocacy, of Public Frankfort, (2003- Appellant Counsel for 2003-SC-0833-TG). SC-0543-MR and Robinson, Gail Assistant Public Advo- cate, Department Advocacy, of Public Frankfort, Rivers, Michael Robert Padu- (2003-SC- cah, Counsel for 0834-TG). Stumbo, General, D.
Gregory Attorney Stetler, Tami Attorney Allen Assistant General, Division, Appellate Criminal (2003- Frankfort, Appellee Counsel for SC-0543-MR, 2003-SC-0833-TG and 2003-SC-0834-TG).
Opinion of the Court Justice COOPER. appeal
This in- separate involves three County dictments rendered Fulton grand juries against Appellant, Robert Dickerson, jury and three trials 110(2)(b). appealed § He charges. Court on those Pulton Circuit convictions registry and sex offender by a different represented sentences, and 01-CR- 01-CR-00015 He was at each trial. public defender as a matter Appeals to the Court of sod- ultimately of one count convicted § subse- 1st”), Ky. 115. We right. Const. (“sodomy omy degree in the first appeals, (which transfer of those quently granted felony should have been a B Class 74.02, them with CR and consolidated felony jury since found that A Class and PFO 2nd 1st appeal than twelve the victim was less 510.070(2), which he was convictions. age), KRS for penitentia- to confinement sentenced years, en-
ry twenty subsequently I. FACTS. thirty years because the hanced to convicted previously was twice felony him to offend- persistent found be Circuit Jefferson of sexual offenses (PFO 2nd), KRS degree in the second er 1988, Appellant was indict- In Court. 532.080(2); of a possession count of one degree rape count of the first ed on one *5 felon, by a Class C a convicted 1st”) two compulsion; forcible by (“rape 527.040(2), felony, KRS for which he 1st, upon sodomy premised one counts of years and prison; to ten one sentenced compulsion prem- and the other forcible violating Regis- count of the Sex Offender than twelve upon being the victim less ised failing notify tration Act Division of years age; of and one count sexual of change and of his of Probation Parole (“sexual degree abuse abuse in the first 17.510(10)(b), address, presently clas- KRS 1st”), less upon being the victim premised 17.510(11), D felony, as a Class KRS sified All the of- years age. than twelve years for which was sentenced five against allegedly perpetrated fenses were prison. victim, plea to a “L.A.” Pursuant same 1989, 31, May (In agreement consummated on fact, grand jury Appel- indicted count 17.510(10)(b). convicted of one Appellant violating KRS lant twice for (“sodomy degree sodomy in second 01-CR-00088, in- Indictment number 2nd”), premised upon the felony a Class C subject appeal, of this dictment that fourteen and 2001; being victim between twelve 27, of June alleged a violation date age mentally incapacitated, 02-CR-00122, years of in- indictment number 510.080; and one count sexual KRS Appellant was tried dictment under years five He was sentenced abuse 1st. convicted, alleged originally a violation and year to one for sexual sodomy for 2nd and 23, May Appellant was in- date 2002. 1st, be served with the sentences to abuse County carcerated in the Fulton Jail years. for concurrently, probated five 2001, but arrest, 24, January date of his 10, 2003, July he was until at least when a 1995, was indicted In finally sodomy 1st convic- sentenced on jury on three County grand Jefferson tion, encompassing June period a both 1st, rape counts of sodomy two counts of 2002.) and 2nd, 1st, perpetrated PFO all victim, the 1995 “C.B.” One of sen- the same all of the The trial court ordered upon the premised sodomy charges was concurrently a total of to run tences age. being less than twelve the con- victim thirty years. Appellant appealed premised all 1st, remaining charges were en- The and sentence for viction to a 01-CR-00015, compulsion. Pursuant 2nd, forcible upon to this by PFO hanced on Novem- plea agreement consummated Ky. Const. right. as a matter of Court 28, 1995, did, ber Appellant pled guilty “register” address; three his new but if it charges amended sexual abuse 1st was then responsibility Mitchell’s to for- four-years was sentenced to serve on each ward the information to the Information count, with the to run sentences concur- Services at Kentucky Center State Police rently. Appellant Frankfort, not, Headquarters “served out” this sen- e.g., to the August 1, (Mitchell’s tence and was released 1997. Department of Corrections em- ployer). The information alleg- 17, 1997, July On pursuant to KRS gave es he to Mitchell is not on file 17.510(2), provision of the Sex Offender Information Services Center. Mitchell did Registration Act, Appellant executed a testify and the record does not reflect pre-release sex register entry offender whether he is employee still an form on which post- he indicated that his Department of Corrections. release address would be 2409 24th Ave. North, Nashville, Tennessee. The form Crystal children, Crumble and her three following contained the notice: including ten-year-old daughter, A.H., her I have been notified that the in- above began residing Appellant’s residence at being formation is Kentucky sent Fulton, Street, 908 Maiden Kentucky, place State Police in order to me on the during sometime the summer of Ap- 2000. sex I register. offender also understand pellant and Crumble married December if I change should have of ad- night worked the shift at dress, I notify am the local factory, day local and Crumble worked probation parole officer within four- 21, 2001, Sunday night, January shift. On *6 I days. teen further understand that A.H. told Crumble that while Crumble was
my failure comply with this law a January 20, at morning work on the A Class misdemeanor. 2001, Appellant showed A.H. a brown-and- release, Upon Appellant his did not blaek-eolored and threatened to Nashville, Tennessee, move everyone but to Ful- kill her and if the house she ton, Kentucky. Grogan Renee testified at did not asdo she was told. then Appellant the trial of the registration bedroom, sexual offense took A.H. into her told her to underwear, that she met Appellant at the bus “pri- remove her her licked vates,” in early August station Paducah then turned and leaned her over “behind,” him and drove to Fulton. testi- spot” against She also his “middle her at runny fied that she and Jawan Ghoulson something accom- which time she felt and panied Appellant to the Hickman office of Appellant soft. then told that “it A.H. was Mitchell, Lawrence probation pa- and gave yellow rag over” and her a wash with role officer for Fulton County. Ghoulson which to clean herself. A.H. she claimed he accompanied Grogan rag verified that hung railing” put the wash “on a Appellant to Appellant Mitchell’s office. her “in dirty underwear clothes.” asserted that since he had “served out” immediately his Crumble the Fulton notified sentence, obligation he was under no Department, Police instituted which a report to a parole except officer criminal register investigation. The underwear his new address. He wearing testified that he told A.H. was at the time of the of- Mitchell a regis- yellow that he was sex offender and the rag fense wash were never name, trant and gave testing Mitchell his social Forensic bed found. AH.’s number, birth, security clothing wearing date of and new and the at sheets she was alleged nega- address. We are not here to the time of the tested offense determine duty bodily whether that satisfied his tive for semen or fluids. other at course, residing then was Appellant from work Of
Appellant did not come home 19, 21, September January County Jail. On Sunday night on the Fulton after his shift Instead, in 2001, formally a motel room “arrested” Appellant 2001. he rented was telephone sex Mayfield, Kentucky. comply He made with “failure jail for mother-in-law, her who used number call to Indictment registry.” offender identify ID” telephone’s “caller function to September rendered on 01-CR-00088 the call telephone number violating 27, 2001, charging Appellant police made. The traced the number 27, Act on June Registry Offender Sex Mayfield Appel- motel and to the arrested charge Ap- not indictment did 2001. The 24, January to his lant 2001. Prior does as a PFO. The record pellant arrest, had overdosed himself Appellant date of June significance reflect in a suicide at- with medication claimed noted, 27, had been Appellant As 2001. tempt. specifically con- County Jail Fulton incarcerated Fulton sodomy but told Police fess to 24, January 2001. since (now city manager) John Ward Captain 2001, Thomas, On November Julie they say “I I did what did.” officer for Fulton parole probation hospital to a police took jail and at the County, visited overdose, lodged and then treatment of listing Ap- registry form prepared a new Jail, County him in the Fulton where Fulton address as the pellant’s present July remained until least Jail, Hickman, re- Kentucky, and County 8, 2001, County On March a Fulton upon expected that his address flecting grand rendered indictment number Street, Ful- 908 Maiden release would be 01-CR-00015, charging Appellant with ton, form contains the Kentucky. That 1st, possession “handgun” of a following notice: “firearm”) (but felon, convicted in- I that the above have been notified and PFO 1st. Ken- Sometime Kentucky being formation is sent to Bates, tucky Police Brad State Lieutenant on the place me State Police order *7 Branch, Commander the Records I Register. also understand Offender Center, includes the Information Services address, I any prior change that “tip” a from received the “coordinator” local Probation required notify am Appel- that Department Corrections I office. I understand and Parole (It in residing lant Fulton. un- was I any in in which register state must whether, Appellant suggests, known relocate, employment, am a student have tip Appellant on the information based expira- or vocation until the carry on a provided to have to Leonard Mitch- claims I further my period. registration tion of 1997, Appel- in it from ell whether resulted I will be understand that 2001, January lant’s incarceration in verify my periodically with address neither.) Bates then obtained information form Kentucky State Police in whatever a the Fulton Clerk that driv- Circuit my fail- and that they appropriate deem had er’s license been issued this portion comply ure 10, 2000, reflecting August Appellant’s on felony. is a D law Class On August Street address. 908 Maiden 17.510(11) 11, 2000, KRS April Effective 2001, of Non- “Warning Bates mailed a penalty increase the had been amended to at the 908 Maid- Compliance” 17.510 from Class address, for a violation of KRS threatening prosecution en Street felony. D A to Class address misdemeanor report if his new 16(11). Acts, 401, § Ky. Parole. ch. to the Division of Probation and II. THE MAY 2002 TRIAL. III. THE SEPTEMBER TRIAL. 21, 2002, 20May On Appellant was A. Registration Sex Offender tried jury Fulton Circuit Court on the Violation; Jurisdiction. sodomy 1st and PFO charges 1st contained The place Septem- second trial took on in indictment number 01-CR-00015. The ber 2002. retrying Instead of handgun charge was severed from the in- sodomy and in charges PFO in- contained dictment purposes of trial. RCr 9.16. 01-CR-00015, dictment number the Com- 404(c), Pursuant to KRE the Common- monwealth elected to consolidate the gave pretrial wealth notice of its intent to indictment with introduce Appel- evidence pertaining sex registration charge offense in in- prior lant’s sexual dur- offense convictions dictment try number 02-CR-00122 and ing guilt phase of the trial. The trial together. Although them indictment limine that it ruled permit would number part 02-CR-00122 is not of this pertaining to the 1995 convictions record, prosecutor and defense coun- but not the 1989 convictions. As it turned sel to it on morning referred of trial out, the Commonwealth did not introduce “superseding as a indictment.” any evidence pertaining to the 1995 convic- Appellant’s court overruled motion to dis- Appellant’s complete tions. defense was grounds miss indictment on denial. He claimed that when he learned charged an offense that was a misde- home, police that the had been to his he meanor. could not face Crumble and decided to commit suicide he knew because she had Registration The Sex Offender Act was learned that he awas convicted felon and Acts, Ky. enacted 1994. 1994 ch. 392. would leave him. He also claimed that It was amended 1998 and 2000. 1998 police, when told the “I they did what Acts, 138-154; Ky. §§ ch. Ky. did,” say I he was referring to his Acts, 401, §§ ch. pertinent 15-30. The Further, convictions. Jawan Ghoulson tes- provisions Act, of the 1994 which was in tified as a defense witness that Crumble effect when Appellant was released from told him after “[Ap- arrest that 1, 1997, prison August were as follows: pellant] didn’t do it.” A mistrial de- SECTION clared when the was unable to reach a used 1 to of this As Sections Act: verdict. *8 On some date mistri- unknown after the (4) felony a “Sex crime” means offense al, grand the rendered indictment 510, in Chapter defined KRS KRS 02-CR-00122, charging number 530.020, 530.064, 531.310, felony or a violating the Sex Registra- Offender crime, a attempt to commit sex or 23, 2002, May tion Act on days two after jurisdic- similar offenses another the mistrial of sodomy/PFO trial. This tion. time, unlike indictment 01-CR- number 00088, grand jury the added a of charge 1st. significance
PFO of the date of 2. SECTION 23, 2002, unknown. still County resided the Fulton Jail on (2) 1, 1995, chaiiged Beginning January any per-
date and had not hi's address (18) signing registry years age since new on eighteen form son of or older 8, November 2001. at the time who is re- of offense added). Acts, (emphasis Ky. ch. 392 discharge a ... a final leased Appellant because Act to applied at- The 1994 committing or penal institution the ef- after shall, occurred his 1995 convictions to commit a sex crime tempting July Act, was (14) of which date days his re- fective after fourteen within language de- emphasized As lease, probation local register with the register to notes, required county in the parole office his 1995 sex the victim of or not whether resides. which he a minor. crime was (B) 1, 1995, any per- Beginning January re- paroled, or discharged, who is son Act, in- to The 2000 amendments jail, probation from a shock leased on 17.510(11) to KRS cluding the amendment where he prison, or other institution a of penalty for violation that increased of the because commis- was confined felony, specifically a D Act Class to to a sex crime attempt or commit sion who, persons all apply “shall to after shall, discharge, parole, or to Act, un- required this are date effective of release, duty of to informed be regis- Act to become der of this Section by the offi- under this section register trants, 15 of this defined Section place confine- cial Acts, (empha- § 37 Ky. ch. Act.” 2000 ... ment. added). of the Act The effective date sis (KRS 15(4) April 2000. Section (7) any reg- If the residence address 17.500(4)) per- as a “registrant” a defines reg- shall changes, person istrant who has age or older eighteen son (14) ister, days of the within fourteen crime, or criminal a a committed sex of- address, pro- local change of with the minor; or who is a victim fense county in the parole bation and office register to under any person required pro- The local new residence. (out-of-state 17.510(6) (7) convic- KRS parole this office shall send bation registrations), person or a who tions and Ser- information to the Information involuntary civil subjected has been Center, Police, Kentucky vices State sexually predator. violent commitment as Frankfort, Kentucky. 17.510(2) requires regis- Since KRS (8) Any required register un- person “on or before the date register trant any of this section who violates der release,” to “com- the reference his or her guilty provisions of this section is obviously “con- crime” means mitted a sex A misdemeanor. of Class of a sex crime.” victed asserts The Commonwealth B. SECTION Act, in the 2000 version register pursuant penalty Persons for a violation creased Act of Section 2 this In provisions applies Appellant. D felony, Class *9 period Shake, a registered (Ky. shall remain for v. S.W.3d Peterson (10) .... 2003), ten 37 of the 2000 we held Section and that the 2000 unambiguous
isAct
applied retroac
not be
amendments could
6.
SECTION
registrant
a
person who became
tively to a
the Act
version of
the 1998
in 1999 when
1 to 5 of this
provisions of Sections
The
Similarly, we
in
Id. at 709-10.
effect.
persons convicted af-
apply to
Act shall
can
2000 amendments
hold that the
Act.
now
of this
ter the effective date
applied retroactively
not be
a
if
person
only
indictment
“the
are
offenses
of the
registrant
who became a
same or
or
1997 when the
similar character
are based on
1994 version
Act
or
of the
was in effect.
same acts
transactions connected
together
constituting parts
offenses
of a common
charged
indictments numbers
plan.”
scheme or
RCr 6.18.
01-CR-00088 and
There is no
02-CR-00122 were mis
similarity
handgun
between the
offense
demeanors.
registration
and the sex offender
offense.
The district court has exclusive
To
handgun
convict
of-
jurisdiction
charges,
over misdemeanor
fense,
(or
not)
may
may
been nec-
have
24A.110(1),
KRS
unless a misdemeanor of
essary to introduce both the 1995 and 1989
joined
felony
fense is
in a
indictment.
However,
convictions.
it was completely
6.18;
Commonwealth,
RCr
Keller v.
highly prejudicial
prove
irrelevant and
589,
591-92
Neither of
Appellant’s
possession
trial for
of a
the two
for
indictments
violation
the Sex
handgun
was not
Offender Registration
joined
Act was
convicted sexual offender but also that he
thus,
felony
charge;
the Fulton Circuit
had violated
Sex
Registration
Offender
Court was without jurisdiction
try
them
Act. The
can
same
be said for the intro-
and should have remanded both to the
duction at Appellant’s
violating
trial for
Fulton District
disposition.
Court for
Pe
Registration
the Sex Offender
Act of evi-
terson,
B. Improper Joinder. Jury C. Issues. objection to the consoli registration During general dation of the sex offender the trial court’s handgun charge pur panel, with the voir Appel dire the entire poses erroneously of trial was overruled. public lant’s new learned that defender of separate thirty-seven panel Consolidation indictments for mem nineteen permitted only if panel the offenses bers had also been members of the charged in those indictments could participated have the voir dire of the joined single 20, 2002, been in a indictment. RCr trial.1 or, joined 9.12. single Offenses moved to panel strike entire alter can.be occurred, It is how this report particular unclear since a ed to for a trial. But cf. jury duty Bartley Loyall, citizen cannot be summoned for 874-75 (reversible peri- (Ky.App.1982) try more than once within a twelve-month error 29A.080(2)(g); by calling KRS equalize od. Admin. Proc. Ct. workload numbers Justice, § 8(2)(g). Part Perhaps jurors participated II the trial who have in fewer cases *10 simply impaneled petit large jury calling jurors one before the numbers of who have cases). year required only participated per and the number need- in more 20th knew May panel the voir dire the jurors who had natively, to strike those only of in trial. The accused not participated the 20th was in latter, course, have would resulted handgun a convicted possession continuance, jurors only eighteen since forcibly sodom- using it to but also felon remained, twenty- have whereas would the age of At under the twelve. ize a child (twelve felony for a trial eight are dire, of those of voir sixteen conclusion try peremptory to the case and sixteen for twenty- remaining jurors among were the 9.40). strikes, RCr court excused jurors Appel- from which eight prospective who had actual- panel those members four Despite using chosen. lant’s was jurors sodomy case or ly as served to strikes excuse eight peremptory of his in and remained the courtroom who had (and jurors jurors two more excuse such to the evidence. The court also listened they could be expressed who doubts juror previously excused a whom had of the twelve seven impartial3), fair and sodomy she excused from the trial because try handgun case jurors selected to sexually as a child. had been abused participated in the dire of also voir had oth- already “pulled” court had The trial case, juror sodomy including one whom panel September er members who attorney had removed Appellant’s previous for rea- had asked be excused various sodomy jury peremptory from the sons, farm, e.g., another had one needed to juror foreperson That became the strike. appointment, another was emo- dental jury. 10th September matter, etc., tionally upset family about a Commonwealth, 99 In Merriweather jurors only if there intending seat those case, burglary we (Ky.2003), a S.W.3d 448 twenty- were less than the minimum trial court did commit held that jurors voir eight remaining complete for by refusing to strike error reversible upshot “pulling” dire.2 The was that after participated jurors six who had hardships excusing those with those cause actually unrelated as- previous, who had heard of a the voir dire trial, sodomy only twenty-six panel mem- Id. defendant. sault case remained. The trial court added the However, bers is distin- Merriweather 450-51. person farmer and the with the dental judice on sev- guishable from the case sub in order to achieve the appointment re- First, two cases in Mer- grounds. eral jurors, quired twenty-eight number of Here, riweather were unrelated. court’s may explain reluctance directly to the charge related grant any further strikes for cause. and, fact, in- had been sodomy charge sodomy from the Thus, dicted with severed every juror September on the in Merriweather charge.4 The trial court panel during who had 10th been juror "magic “rehabilitating” procedure. each object to this 2. Montgomery v. Common question." But see One, the of the Fulton Chief of brother wealth, 717-18 Police, relationship with his stated reversing for a new are this case Since we weight give would cause him to more brother reasons, we need address trial for other testimony police of a officer Fulton expressed bias to jurors sufficient whether the other, correc- than other witnesses. The for required their excusal cause. have tions who worked with sex offenders officer doubt, charge knowledge County 4.No the Fulton Jail where incarcerated, being prejudice inherent presently stated she was “not also enhanced registrant impartial. offender violator. tried a sex that she could be fair sure” However, already that it jurors we have determined Appellant challenged cause. both circuit court. try challenges after was error The trial court overruled *11 determined, jurors that the had only vague selected for of prior his codefen- dant, recollections of the nature of the actually and three had served on the Here, prior jurors of many trial. jury that tried and convicted the eodefen- during general volunteered the court’s voir dant. The trial court continued the trial dire of the panel they entire that recog- until following day the clerk told nized partic- because of their only jurors to instruct those who were not ipation in prior trial. The trial court on the codefendant’s panel report jurors they did not ask the whether re- jury duty. in mistakenly When the clerk called the nature of prior charge but jurors eight structed on who had served they stayed whether in the court- had. return, panel the codefendant’s the trial presented room and heard the evidence at eight jurors (“pulled”) withheld those During prosecutor’s trial. actually and none served on the defen dire, inquired any pro- voir he whether dant’s case. The United Court of States juror spective had anything during heard Appeals for the Sixth Circuit concluded May 20th prevent trial that would that no error occurred. Id. from person rendering impartial fair and course, Dempsey, of is factually more akin trial, September verdict he re- to Merriweather than to the sub judi- case ceived no response. Defense counsel did ce. any not inquire jurors whether re- jurors partici- conclude that the who
called the nature of We the offense for which pated the voir dire at sod- 20th, was tried on no doubt omy thereby trial and learned that he positive used response because would have re- handgun forcibly sodomize child forgotten. educated those who had Final- impliedly under of ly, age the defendant in twelve were Merriweather excused jurors question all six of the by exercis- biased and should have been excused from strikes; ing thus, peremptory serving subsequent handgun none actual- on the trial. ly jurors Here, served as on his case. Unlike in Dempsey, Merriweather if Appellant eight even had all exercised jurors actually three those served his peremptory against jurors strikes who trial, constituting thus reversible present during were the voir dire requiring error a new trial. trial,
sodomy jurors such least three would have jury. served on this Appellant, who is African-Ameri can, complains jury panel also juror
Since no
being actually
admitted to
contained a
disproportionate number
trial,
biased
participating
Specifically,
non-African-Americans.
the issue is whether such
im
constituted
whereas
he claims
African-Americans
plied bias. This case falls
be
somewhere
comprise
twenty-five
approximately
per
tween Merriweather and
v.
Miracle
Com
County,
population
cent
Fulton
monwealth,
(Ky.1983),
463 jury the admonished subsequently court jury in order to eligibility accounts for case, fact. Id. at 164-65. facie based on not to consider prima out a make exclusion). such data, systematic to introduce prejudicial of It far more population of a trial. during guilt phase D. Failure to Redact. course, have avoided could Of by sim judgment admitted into of either The the admission Commonwealth Old Appel to convictions. judgments reflecting stipulating ply evidence the States, 172, sodomy of 2nd and 190- 1989 convictions 519 U.S. lant’s v. United Chief 654-55, his 1995 convictions L.Ed.2d 574 sexual abuse 1st and 136 117 S.Ct. (where (1997) of abuse 1st. The of three counts sexual was relevant prior conviction sought introduce a also to Commonwealth of defendant’s only prove the element to indictment, charged copy of 1995 felon and defendant status as convicted 1st, of of two counts fact, three counts court stipulate to that offered 1st, The trial court rape and PFO 2nd. by permitting govern abused discretion objection to the ad Appellant’s sustained prove of the offense ment to the nature but mission the indictment overruled objection).5 Appellant If over defendant’s from Appellant’s motion to redact introduction of the could have avoided judgment a recitation that the convictions stipulating that was a he judgment from of sexual 1st were “amended abuse felon, clearly entitled to he was convicted (2 (8 counts), I Sodomy Rape I with judgment from the informa redacted have counts), II Felony Persistent Offender jury could deduce that tion from which the Thus, being dismissed.” Common than greater far offenses he committed wealth was able inform the of which was convicted. those though contents of the indictment even itself, indictment, The was excluded. 1997 sex of The notation admitted into evi Commonwealth also irrelevant registry form was also fender register entry dence the offender form sex the 1994version of prejudicial. Under 17, 1997, July by Appellant executed Act, age Registration Offender Sex prison. his release from The trial before A person not a factor. of the victim was also overruled motion required to sex crime was convicted form the redact notation: “Sexu 2(2). Acts, 392, § register. Ky. ch. year I daughter al with twelve old abuse relevant age of the victim became girl live-in friend.” increased the the 2000 amendments when requirement Commonwealth, registration duration of the In v. Perdue Ky. a minor. 2000 life if the victim was (Ky.1995), we held that was 17.520(2)). 17(2) (KRS Acts, 401, § ch. jury during to inform the reversible error Thus, trial that the Commonwealth sentencing phase age the victim order manslaugh- prove conviction of prior defendant’s Appellant was a sex offender from the establish ter had been amended down particularly registrant. The though notation of murder —even the trial have a underlying offense could reasoning expressed in ture of the Old The same Chief greater prejudicial than the mere effect far provision KRE 609 which underlies that espe impeachment value of the precludes party impeaching a witness with conviction — a similar proving cially defendant is on trial for if the conviction from nature See Commonwealth impeaching ad- or related offense. when the witness offense Richardson, (Ky. 517-18 existence. When the mits the conviction’s defendant, 1984). identifying the na- is the witness prejudicial respect pistol, Stephens caliber .16-gauge shot- *13 because, offense judgment gun, while 'special the and six .38 bullets. When did reflect Appellant objected the nature of relevancy those indicted to the of the bullets, offenses that had shotgun been reduced or prosecutor dis- the re- missed, it did not age sponded reflect the that the charged pos- the indictment victim. session of a firearm a convicted felon
(Class D felony). Upon being advised Crimes, E. Other Wrongs, possession charged only the indictment UOkOb). Acts; or KRE (Class handgun by a a convicted felon C felony), prosecutor responded the that the The Commonwealth did not serve a relevancy shotgun was that was 404(c) KRE notice of its to intent intro- found Appellant’s residence. He did not crimes, wrongs, duce evidence of other explain relevancy the of the bullets. Of 404(b). acts under KRE Appellant filed a course, evidence that shotgun motion in limine to such exclude evidence found Appellant’s only residence was Nevertheless, ruling. but obtained no de- prove relevant to that he possessed the fense counsel registered contemporane- a shotgun possessed the fact that he objection ous —but the admission of the fol- shotgun prove was irrelevant lowing evidence. handgun charge. Pinson, In addition to 3rd; 1. Terroristic threatening KRS Ward, Captain the former Fulton P.D. evi- 508.080(1)(a). custodian, dence and Officer David Town- The Commonwealth send, called the sod present custodian, also victim, omy A.H., to the stand shotgun, identified and discussed purpose of establishing that she observed which was marked and introduced into evi- Appellant possession handgun aof on Captain dence. Ward even handled the However, January the Common an weapon, breaking it down in ostensible wealth elicited only from A.H. not attempt she to find its serial number and observed possession pointing out jury weapon’s to the that the handgun, brown-and-black-colored but also stock was handmade. if anyone, he “said I had he told 3.Sodomy; 510.070. KRS going to shoot me with it.” The only Captain prepared separate Ward had evidence, conviction, other than a reports sodomy handgun on the necessary prove posses the offense of reason, charges. brought For he some handgun by sion a convicted felon is reports handgun both to the trial of the that the possessed defendant a handgun, During offense. direct cross-examina- not that he threatened to shoot someone tion, report he testified from his de- Obviously,
with it. the evidence scribing weapons Appel- obtained from threat was irrelevant and was offered sole cross-examination, residence. lant’s On ly for prejudicial its effect. Appellant pointed discrepancy out a in the 2. Possession a con- firearm report. attempting In rehabilitate 527.0^0(1). felon; victed KRS witness, prosecutor asked Ward about Pinson,
Wiley report. former officer another entry respond- Ward Fulton Department, Police testified that ed: “That report was the on the obtained from Appellant’s wife a brown- case. This report is the on and-black-colored Smith & Wesson .38 cal- case.” Appellant moved for mistrial. revolver, Ruger iber as well as a silver .45 mo- The trial court overruled testify that Crumble would apply because tion and offered admonish when were sod- her children Ward’s reference “the to consider her, thus the handguns to displayed declined this offer omy case.” confidential, cit only emphasize communications were grounds it would (Ky. Ewing May, 705 ing S.W.2d jury. further taint the point and Co., Mining 1986), Wadlington v. Sextet Frankly, perceive fail how this we and Com (Ky.App.1994), by an jury could have been further tainted *14 (Ky. Byrd, S.W.2d monwealth v. irrel- how the avalanche of admonition—or however, cases, were Those App.1985). introduced prejudicial evant and 421.210(1), former KRS decided under been an in this case could have cured by KRE replaced and repealed which was Except the factual details admonition. for giving 1992, long the events 504 in before sodomy charge, jury already the of Ky. place. took rise to this issue known if everything knew would have 504(a) Acts, provides: § ch. 30. KRE sodomy charge and a testimony. spouse The of Spousal ju- At three had not been severed. least testify party privilege has a to refuse Ap- began rors knew before the trial that occurring party as to events against the previously sodomizing tried for pellant was A marriage. of after the date their age child under the of In case twelve. prevent his or party privilege has they forgotten, they were reminded had spouse testifying her from by Captain reference to that fact Ward’s party occurring events after sodomy They case.” also told in “the were marriage. date their to kill Appellant this trial threatened added.) sodomizing; the child he was accused of (Emphasis previously three that he was convicted of motion exclude Grumble's sexually abusing child counts of another fact, testimony In Crum- overrated. was age, only was twelve but who of her children were ble testified that none perpetrating after the indictment for far Appellant on occasions when those charges against more serious that child The trial weapons to her. displayed the dismissed; either amended verge granting Appel- court was had another that he conviction prose- for a mistrial when lant’s motion for he served and sexual abuse which no prove that he could proffered cutor prison. They time in now also knew that to Crum- weapons Appellant displayed only handgun in addition to possessing the Crumble then marriage. their ble before evidence, by competent proven that was her the showed testified possessed handgun, a shot- also second before revolver brown-and-black-colored stock, and six bul- gun with handmade that he did not they were married but lets. pistol shotgun or the her the silver show marriage. trial court until after the The Spousal Privilege. F. for a then overrated the motion mistrial “disregard all jury Crystal called and admonished When Commonwealth .45 witness, you have heard about as a invoked evidence Crumble they are shotgun and the spousal privilege preclude her automatic By that from the evidence.” against him about events occur- stricken testifying i.e., testified that the point, four witnesses had ring during marriage, posses- shotgun were pistol .45 caliber and the handgun. prosecutor prof- of a sion light In Appellant’s residence. privilege that the did not found fered to all of unfairly prejudicial 1986); offense, the other evi- standing and the 1989 case, dence alone, admitted this we qualify conclude did not aas PFO enhancer 532.080(2)(c)l. the trial court’s admonition to disre- under KRS Although it is gard “all evidence” about the .45 pistol record, reflected this shotgun “unring the bell.” states his brief that the trial court sub Commonwealth, Foster sequently merged indictment numbers 01- (“We 683 (Ky.1991) suspect 02-CR-00122, here that be- CR-00088 and and then dis phase very fore the penalty many 02-CR-00122, missed leaving posture old, hours the court and the attorneys if Appellant the case as had been tried came grim to the 01-CR-00088, realization that it was too and convicted under late ‘unring the bell’ and that death explains why Appellant appealed a convic penalty verdicts returned tion under an indictment which he was duration.”). ephemeral would be never tried.
Likewise, admonishing after jury the to
disregard the evidence pertaining the THE IV. MARCH 2003 TRIAL. pistol shotgun, the the trial court in A. Prior Convictions. the sub judice prosecutor: case told The retrial and PFO 1st “This coming one’s back.” 14, charges began on Again, March Appellant’s handgun defense to the gave pursuant the Commonwealth notice was that brown-and-black-col- 404(c) to KRE of its intent to introduce belonged ored revolver to Crumble and during guilt phase pertaining evidence that she it in protect obtained order to to Appellant’s 1989 and 1995 convictions. herself and her children while he was The nature of the intended evidence was working at night, defense might that revealed, not as the Commonwealth mere- plausible have seemed more had the jury ly prior attached copies convictions that handgun known a second and a (third) Appellant’s its motion. at- new shotgun were found in the also residence— torney filed a written motion limine to presumably prosecutor what meant suppress grounds that the evidence on explained when he that the shotgun was satisfy any evidence did not of the “other it relevant because was found the resi- 404(b). purpose(s)” Although KRE dence. At the evidence, conclusion court mo- had sustained finding Appel- rendered verdicts tion in limine to evidence of the suppress guilty lant handgun both the and sex May trial, at it 1989 conviction 2002 offender registry charges and fixed his overruled the in limine motion with re- sentences for those offenses the maxi- spect to both at the March prior offenses mum years, of ten respec- five 2003 trial. tively. 1. Law the Case. The Commonwealth dismissed the PFO charge, presumably because the con 1995 that the trial contends viction, been prove Ap which had used to pertaining court’s exclusion evidence felon, pellant’s status as convicted could the 2002 trial 1989 conviction at the not be penalty precluding re-used to enhance his for was the its “law of the case” offense, v. Boulder Common ap admission the March 2003 trial. As wealth, 615, (Ky.1980), plied S.W.2d 617-18 in Kentucky, law of the case grounds by overruled other Dale v. applies only doctrine rulings ap an Commonwealth, 227, (Ky. pellate S.W.2d rulings and not to a trial licked Commonwealth, that no 376 was court. Scamahorne penis his placed that he vagina, C.B.’s also 687-88 See anus, against, penetrate, but did not C.B.’s Akers, States v. 702 F.2d United There ejaculated on her anus. (D.C.Cir.1983). or that he some While 1147-48 Appellant flour- was also no evidence take a more liberal view courts harm C.B. weapon or threatened to ished to trial court applied doctrine and have comply if with his wishes. she did rulings, v. Alexan e.g., see United States reading testify Ward did not (9th Cir.1997), der, F.3d 876-77 any or from public from a record record join decline to them. we by him or that prepared that had been 2. Preservation. the 1995 custody or control. Since prosecutor began dis When oc- premised upon offenses conviction was cussing prior during opening offenses likely County, it is curring in Jefferson statement, approached defense counsel an reading investigative he was following and made the statement: bench summary prepared by a Jeffer- report objec- police agency. I like a Defense coun- Judge, running County would son object hearsay, tion in this acts case sel did not this obvious objection through- believing an follow that the trial court’s apparently would continuing objection “any I grant out this whole trial so won’t have to of a *16 objection again; object an I to prior pre- make but of bad acts sufficed to evidence” any prior evidence of bad acts on the issue. serve part of Mr. Dickerson. counterpart, its Unlike federal added.) (Emphasis 103(a)(1) require a party KRE does not obtaining After grounds reconfirmation from the objecting to evidence to state the prosecutor that the upon request evidence would show objection, except for the operandi, Lawson, modus trial court said to The Ken court. Robert G. counsel, “Okay, right,” defense all tucky Evidence Law Handbook (4th 1.10[4][b], assume he coun- granted § which we defense ed. LexisNexis at 38-39 objection. 2003). continuing sel a are Continuing objections appro is that the priate when claim of error The not prosecutor did elicit evidence testify any incompetent witness is pertaining the 1995 conviction from the testimony thing, e.g., that the violates anyone personal victim or else with knowl- privilege; marital that out-of-court state Instead, edge of the facts of that case. of the same declarant violate ments Fulton Captain former Police John Ward rule; hearsay or that the same irrelevant began from an reading unidentified docu- repeated when evidence is inadmissible allega- ment in his file. read that He Davis v. Common different witnesses. perpetrated tions involved sexual acts wealth, (Ky.2004). 721 during against period C.B. from 1992 continuing objection was obvi Appellant’s 1995; years that C.B. over twelve of mo ously premised upon the denial his 1995; age daughter that C.B. was the pertain tion in limine to exclude evidence Appellant’s girlfriend; acts oc- prior pursuant to the convictions ing curred in the bedroom of the home while 404(b), hearsay pursu KRE not to exclude work; C.B.’s mother was at and that the objection continuing The ant to KRE 802. sodomy.” an allegation acts “involved hearsay preserve the did not issue. description There was no factual kOk(h); Operandi. alleged sodomy. Specifically, act of there 3. KRE Modus In addition to cally, the evidence per testify she did not that Appellant convictions, taining to the 1995 vagina, penis Com licked her placed against, presented monwealth testimony penetrate, anus, did but her or that he L.A., the victim of the 1989 convictions. ejaculated on Although her anus. she tes- L.A. testified that she was fourteen threats, tified to testify she did not old (or sexual Appellant a gun threatened her with activity gone with her had on “for some sword) even machete or induce her time” before the indictment was rendered. to accede his wishes. Although she activity usually occurred her while testified that her mother was either mother or was work asleep, Appel occurred, asleep work or when acts she lant told her that if anyone, she ever told testify as to where the acts oc- he would kill her and her mother. When curred. if asked Appellant any weapons, had L.A. 404(b) KRE provides first that “[e]vi- responded that he had a machete and a crimes, wrongs, dence of other or acts is sword. did testify She that he threat prove not admissible to the character (or ened her awith firearm ma with the person in order to show action conformi sword). chete or respect With to the facts added.) Thus, ty (Emphasis therewith.” offenses, testimony sexual her entire we have held that evidence of sexual
aswas
follows:
proves only
misconduct
inadmissible if it
Q. Did
occur
something
in 1988
be-
a “lustful inclination.” Pendleton v. Com
fore
in a
resulted
criminal
monwealth,
prosecution
in Louisville
Mr.
However,
404(b)(1) permits
KRE
ad
Dickerson?
mission of such evidence
offered for
“[i]f
A. Yes.
proof
some
purpose,
other
such as
of mo
*17
Q. Did it involve acts of
na-
a sexual
tive,
intent,
opportunity,
preparation, plan,
ture?
knowledge,
or
of
identity,
absence mistake
A. Yes.
or
pur
accident.” This list of “other
Q.
if any
What
of
in-
part
those acts
pose[s]”
than
is illustrative rather
exhaus
sodomy—
volved what the law calls
Commonwealth,
tive. Tamme v.
973
of
touching
private
your
his
areas with
Here,
(Ky.1998).
29
evi
S.W.2d
the
private areas?
prove
corpus
offered to
the
dence was
(No response.)
A.
offense,
delicti, ie.,
fact,
the
oc
acts,
Q.
they
These sexual
did
involve
curred, by demonstrating a modus operan-
(cid:127)
sodomy?
degree
di. We
the
first' discussed
of simi
A. Yes.
larity necessary to demonstrate a modus
operandi
pre-Rules
in the
of
case Adcock
Q.
you
,by
Do
understand
Iwhat mean
Commonwealth,
(Ky.
v.
A. Yes. scheme, pattern a establish the real Thus, is the question L.A. was not asked and whether the method of testify constituting facts the sexual commission the other crime or crimes of perpetrated offenses her so so unique other is similar and as to indi- they sodomy.” than that Specifi- probability “involved cate a reasonable the say more accurate vant. It seems by per- same committed the crimes were assimilated into latter issue is that the son. occurred, then If the act the former. added). (emphasis Id. the certainly was almost the defendant Commonwealth, 843 In Billings are essen- The two issues perpetrator. (Ky.1992), we discussed S.W.2d entirely tially integrated. appropri- It is necessary length degree similarity the of ate, believe, assessing purposes we probability that a reasonable indicate admissibility of of collateral evidence by the committed same sexual crimes were context, present to treat crimes by corpus delicti person prove so as prove as if offered iden- demonstrating operandi. a modus require that the tity similarity, and to in- many In the case—as uncharged charged details of volving charges of sexual crimes—the as demon- sufficiently similar acts be corpus issue delicti— ascendant is operandi. strate a modus at all. And whether the event occurred is application on this issue (footnote omitted). Id. at 892-93 evidentiary problematic. rules most Thus, commonality it is act Unless the collateral has some direct commonality but the crimes act, in- relationship charged the crimes that demon constituting facts charged ference that the act occurred is Although operandi. a modus strates necessarily nothing founded on more the facts be identical in pre- than the defendant’s character and of other acts of respects, all “evidence the collateral disposition revealed ... be so similar to sexual deviance must act. on trial as to constitute so- the crime nature, long In of this cases we have crime.” Rearick v. Com signature called similarity recognized degree that the monwealth, charged uncharged between the establishing acts is critical factor previ- had Mere evidence relationship independent direct of char- proved only L.A. ously C.B. and sodomized in- degree similarity acter. As commonality and estab- crimes creases, operandi appears, and a modus lustful inclination only Appellant’s lished *18 likely are to be more drawn inferences sodomizing age females of that toward the events’ rather common facts to No were introduced de- group. facts criminality. than their common sodomy acts nature of the scribe the against C.B. or Appellant perpetrated
that be acts The conclusion must that two testimony only conclusory that L.A.— involving not sexual crimes are neces- sodomy. there whatever did was While ” ... sarily “similar. acts evi- [B]ad “in that he C.B. was evidence sodomized prove to the corpus offered delicti dence was at while mother the bedroom her similarity meet cri- by should the same work,” no that he there was evidence offered to prove teria as such evidence bodily harm if she did threatened her with is, it identity by similarity should to advances. there —that not accede While operandi. modus indicate that he threatened to harm evidence was abuse sometimes
L.A. that the sexual her was at work delicti is occurred when mother corpus While issue of the (but cases, identity when her mother was in these also sometimes primary (if home), evidence asleep there was no wholly irrele- perpetrator any) is indicating where occurred and cause notary the certificate public no evidence that Appellant used a firearm. who had transcribed the testimony from Reiterating that the facts need be videotape the official read: identical in all in- respects, there was an I, Kimberly Boyd, Notary Public in and commonality sufficient facts these Kentucky the State of at Large, do prove cases to a “signature crime” demon- hereby certify foregoing jury that strating operandi a modus order testimony in Commonwealth v. prove that committed pres- by Dickerson has been transcribed me ent offense. my ability the best of day this the 8th
This is not to say there was insuffi- of August, 2002. cient evidence to convict so- Appellant of ruling trial court its reconsidered domizing A.H. testimony A.H.’s alone objection, and sustained the apparently be- support sufficient to his conviction. Nor 30.06(1) requires cause CR that the officer saying are we the Commonwealth taking deposition certify “shall on the could not present more detailed evidence deposition duly that the witness was sworn prior sexual misconduct by him deposition and that the is a true upon retrial that would meet standard testimony given by record of the the wit- Adcock, established Billings, and Rear- ness.” Defense counsel introduced the ick. hold We pre- transcript way of KRE avowal. sented at the March 2003 trial was insuffi- 103(a)(2). reason, For some defense coun- thus, prove operandi and, cient to a modus request play sel did not the official proved inclination, only Appellant’s lustful videotape prior testimony Ghoulson’s requiring reversal for new trial. jury. Regardless, the March 2003 never May heard Ghoulson’s 2002 testimo- B. Right Denial to Present Defense. ny that him “[Appellant] Crumble told conferences, During one of the bench didn’t do it.” defense counsel advised the trial court that 30.06(1) he had been unable to subpoena serve a Civil applies Rule to a person Ghoulson, Jawan who had places testified at who the witness under oath and May 2002 trial that Crumble told him that creates a record of the oral witness’s testi- it,” “[Appellant] mony given. didn’t do is defense as it That how a tran- permission script testimony counsel asked read would have been jury a transcript previous produced prior adoption of Ghoulson’s to our of video Instead, testimony. recording trial court direct- as the official record. There give subpoena ed defense counsel to no reporter the sheriff and at- directed the sheriff to 2002 trial who could have an prepared *19 tempt to serve it on the transcript Ghoulson before official of that trial. The tran- in day, script by conclusion of the trial. purport Later offered did the sheriff advised the court that had to be public “official” or even a record. Thus, applicable been unable to locate Ghoulson. The trial rule respect with court to be as found Ghoulson “unavailable the authentication that transcript is 901(a), witness,” 804(a)(5), ie., in as defined KRE KRE that or authentication and indicated that defense counsel “is could identification satisfied evidence suf- prior testimony. prosecutor finding read his The to support ficient that the matter objected grounds question then on that the tran- in is its proponent what claims.” script authenticated, improperly succinctly be- The to this answer issue is stat-
471 Hines, Commonwealth, 995 S.W.2d in Bruce v. S.W.2d ed may only infringe upon this “A (Ky.1969): trial theory unsup- is right when the defense also that the testi- contends and far-fetched and ported, speculative, authenticated, mony duly read was not jury.” or mislead the thereby could confuse RCr 7.22. We think this (internal citation Beaty, at no con- objection is without merit since omitted). sole Appellant’s testimony quotation made read tention is was that he sodomy charge to the testimony actually given by defense .... commit the offense. Ghoulson’s this witness the former trial testimony respect Crumble’s Id. at 437-38. only was the evi- inconsistent statement (who Likewise, prosecutor other than own testimo- dence trials) participated in both did not claim If ny proved the facts his defense. transcript that the was inaccurate. Ghoul- retrial, ie., if upon are the same Ghoulson testimony min son’s defense lasted seven is an “unavailable witness” as defined transcript and the consists of fewer utes 804(a)(5), Appellant permit- KRE shall be typewritten pages. than six have We transcript ted to read the of his either compared transcript with the official testimony play 2002trial videotape and have found testimony jury. to the videotape of discrepancy notary, when the occurred counsel’s statement transcribing defense Unpreserved C. Claims of to the trial court that he intended “to Evidentiary Error. a prior introduce inconsistent statement of Crumble’s,” “existing” Ms. for substituted complains also Otherwise, transcript “inconsistent.” pertaining to the admission evidence is accurate. A.H., i.e., impact emotional the crime rape that her mother took her to a crisis in a right an accused criminal treatment, and offered is, essence, center for process due repeated A.H. by several witnesses that
right to a fair opportunity to defend her times and version of events several the State’s accusations. This no inconsis perceived that the witnesses right, “right often termed defense,” firmly is There were no ingrained Ken- tencies her statements. contemporaneous objections of this tucky jurisprudence, and has rec- been thus, pre testimony; this issue is not ognized repeatedly by the States United appellate KRE Supreme An of evi- served review. Court. exclusion 103(a)(1). of this invariably dence will almost be Nor did admission declared testimony injustice. un- constitute manifest significantly unconstitutional when 103(e). However, will address KRE we dermines fundamental elements likely they are these issues because defendant’s defense. upon recur retrial. Commonwealth, Beaty v. (internal (Ky.2003)
206-07 citations and inju- victim’s emotional Evidence of omitted). “It crucial to a quotations ry. right pro- defendant’s fundamental due *20 evidence of AH.’s emotional develop that he be allowed to and The cess prove that directly in relevant to injury evidence his was any exculpatory assaulted, defense, sexually an element of reject any she was own we alternative McGregor the Commonwealth’s case-in-chief. imperil right.” that would that 472 properly
evidence became even more relevant when admitted as “relevant circumstan Appellant denied that the assault occurred. tial that experience evidence a traumatic reject Appellant’s We assertion that this occurred”); rape such as has v. State evidence was inadmissible as indirect evi Shaw, 275, 1106, 149 Vt. 542 A.2d 1107-08 dence of Sexual Abuse Accommodation (1987) (evidence changes com Syndrome. Although this is an issue of plainant’s personality was material to the Kentucky, juris first impression in other question key a sexual whether assault permitted have of a dictions vic occurred). agree with these other We following tim’s emotional state a sexual and hold evidence that A.H. courts that assault, fact, proof assault that the rape center for visited crisis treatment See, State, e.g., occurred. Simmons v. 504 prove was relevant that she was sexual (trial 575, (Ind.1987) 581 N.E.2d court did ly assaulted. in admitting not abuse discretion testimo prior 2. Evidence victim’s consistent ny family following members that statements. rape, go victim became outside afraid herself, often, stayed at home more improper permit It is a wit family feared for members who went out ness another witness has testify alone, concluding probative that it was statements, prior made consistent absent raped); fact that victim had been State v. express implied an 647, 765, Bishop, 240 Kan. 732 P.2d of recent or improper declarant fabrication (1987) (victim’stestimony that received she 801A(a)(2). Otherwise, KRE influence. being as a counseling raped result of simply vouching is witness had circumstantial evidence that she been statement, truthfulness of declarant’s Dube, 742, raped); v. State 598 A.2d 746 which we held to be have reversible error. (“Evidence (Me.1991) changes Commonwealth, Russey 483, v. 797 S.W.2d personality victim’s and behavior immedi (Ky.1990). also v. 484-85 See LaMastus ately reported after the time of the assault Commonwealth, 32, (Ky. 878 S.W.2d prove something tends to of a trau perceive conceptual no App.1994). We dis matic nature had in fact occurred and thus testimony that repeats tinction between case.”); clearly relevant to the State’s prior the witness’s consistent statement State, 252, Parker v. 156 Md.App. 846 A.2d testimony verbatim and the witness (2004) 485, (jury legitimately 497-98 could previously con made statements were changed infer that due victim’s behavior testimony. sistent with her trial Either rape “abrupt from the fact that behavioral way, prove that the evidence is offered to change[s] closely on the heels of occurred testimony is truthful declarant’s Seiter, rape”); State v. 949 S.W.2d prior consistent with her because (Mo.Ct.App.1997) laymen (experts and “A witness cannot be corrob statements. testify about their con can observations previous proof orated that on occasions cerning psychological changes physical made the same statements as those has helps in the victim because such evidence testimony.” v. made Smith Com prove of the elements of sexual monwealth, fense, itself, may and thus be admitted to did, fact, occur); show the offense State Penalty D. Phase Claims Error. (Utah Cosey, P.2d 1181-82 1. Prior convictions. Ct.App.1994) (testimony of victim’s mother During penalty phase of the March contrasting victim’s behavior trial, trial court made the same incident with that after the incident was 2003 *21 records, public not are guilt phase in the of the D.O.C. records error it made records; permitted thus Commonwealth September 2002 trial when business them judgment required clerk to read from the 1995 not introduce was qualified of which other through that the offenses a “custodian or of conviction 803(8) (public “amended Appellant Com/pare was convicted were KRE witness.” (2 (3 803(6) counts), records) (business I I Sodomy Rape with KRE rec- II counts), ords). Felony Morris, agency and Persistent Offender employee an Perdue, records, being See dismissed.” tes- custody entrusted with court com- (holding that the trial they at 164-65 knowledge from his that were tified failing grant mitted reversible error D.O.C., ie., The trial public, records. informed, jury mistrial after the dur- obviously source[ ] that “the court believed phase, ing penalty that the defendant’s Morris, information,” i.e., not “indi- did manslaughter conviction had resulted prior KRE cate lack of trustworthiness.” charges). from an amendment of murder 803(8). admit- properly The records were by preserved this was not Although issue ted. objection, ad- we have contemporaneous conviction judgments Accordingly, likely upon it because it is to recur dressed imposed by Fulton Cir- sentences
retrial. and this case cuit Court are reversed object to prior did convic- that for further pro- remanded they grounds tions on improper- were of this ceedings consistent with content ac- ly authenticated because there was no opinion. knowledgment, by as KRE 902(8). However, each conviction contains LAMBERT, C.J.; GRAVES, and certificate, purports signed to be JOHNSTONE, JJ., concur. by a clerk of the deputy Jefferson Circuit ROACH, J., by separate concurs Court, it is copy a “certified of records opinion. Miller, Court, Tony Circuit Jefferson satisfy That suffices to the au- Clerk.” SCOTT, J., in part concurs and dissents 902(2). requirements thentication of KRE by opinion. part separate PFO Status. Proof of WINTERSHEIMER, J., dissents Morris, probation pa Joe opinion. separate without by Department employed role officer Concurring opinion Justice ROACH. (D.O.C.), of Corrections testified from trial, I join As to D.O.C. re records III.D., III.A., III.B., III.E. Parts prison leased from less August However, opinion. majority III.F. of the years prior than five to the commission is no likelihood that because there KRS present offense. See III.C., issues, Part will be 532.080(2)(c)l discussed (providing that PFO status retrial, I do believe we felony present con imposed previous can be for a them. See lce v. Common should address completed viction for which the offender wealth, (Ky.1984) service of sentence within five (“Since commission this case we have reversed to the objected given, we will not dis felony). previously to Morris’s reasons points appellant grounds that he was not the cuss the other raised testimony on they to recur on unlikely are custodian of records and could inasmuch as case.”); However, v. Common Terry of this accuracy. authenticate their retrial *22 wealth, (Ky.2005)
(“We CLAIR, Appellant, Michael D. mil ST. also address other issues retrial.”). likely are upon recur trial,
As to the join March 2003 I Parts Kentucky, COMMONWEALTH of IV.B., IV.C. and IV.D. majority Appellee.
opinion. I concur result Part as to No. 2001-SC-0209-MR. IV.A.
Supreme Kentucky. Court of SCOTT, Opinion by Justice Concurring Oct. 2005. in Part and Dissenting in Part. As Corrected Oct.
I concur all Cooper’s of Justice IV.A.2,
opinion except issue in regards to objection.” “continuing objections granting
The such con- is
trolled the trial courts and is used to repetitive
avoid interruptions. They are a upheld
useful tool and should be when Otherwise,
granted. use their will become fraught waiver,”
so “danger with the attorney’s will avoid their use.
One, through repet- who has sat trials with objection
itive after repetitive objection, damaging
knows how can they be
party how can irritating it be to the jury.
court—and not something It’s
one should do and this reason for,
asking getting ob- “continuing
jection.” objection continuing granted
in this case purpose served its and should upheld
be so to preserve its intended object
function—which in this case was to otherwise) (hearsay
pertaining to the convictions.