Dyer v. Commonwealth

explicitly by others. Here the doctors the histo- opinions

based their causation DYER, Appellant, David Allen from Mr. When a ry elicited Osborne. opinion solely upon histo- medical is based Kentucky, COMMONWEALTH ry, trier of fact is not constricted to a Appellee. focusing only physi- myopic view testimony bearing testimony. cians’ Other No. 90-SC-248-MR. history may accuracy of the on the Supreme Kentucky. Court of all, funneling a state- considered. After 26, Sept. 1991. provides through party a second no

ment credibility additional enhancement. The history by physician does

recitation of history it If the is

not render unassailable.

sufficiently impeached, the trier of fact

may disregard opinions based on it. Martin,

See, Michael M. Basic Problems of (6th 1988).

Evidence, ed. Yol. at 361 all, opinion does not rest on the

After knowledge, predi-

doctor’s own an essential

cate to make uncontradicted con- Gay, supra.

clusive. Bullock v. nothing supervi-

Mr. Osborne said to his being injured day

sor on the about

injury supposedly occurred. Rather he leaving

claimed sickness as his reason for reported

work. When he first for treat-

ment, specifically no stated there was injury. employer He later called his

known occasions, complaint

on two but voiced no injury presented at work. He an exten- history problems.

sive back trier questioned credibility.

fact We hold

under circumstances cannot be said overwhelming

the evidence was so to com-

pel finding in Mr. Osborne’s favor. Par- Foods, Burkhardt, Ky.,

amount Inc. v. Appeals

The decision of the Court of

affirmed. concur, REYNOLDS, except

All J. J., REYNOLDS, sitting, except

All

sitting. insufficient;

1) The exhibit, 2) admitting Error in an consist- ing pictures, reading of ma- miscellaneous memorabilia, personal terials seized apartment appellant from shared companion, with a female which rel- lacked prosecu- evancy other than to bolster the he fit the tion’s unsubstantiated claim that profile “pedophile”; 3) repeated prosecutor’s Error ref- appellant “pedophile” a erence to as support when there was no evidence to charge.

We conclude there was evidence suffi- conviction, support a re- cient to but we above, points verse on and three stated two for reasons that follow. of of April Officer Gerald Curtis Department a Maysville Police received report

call a a from social worker about appellant. The child molestation ten-year boy. a old Cur- victim was tape tis viewed social worker’s recorded stated, boy in interview with the alia, appellant him that the showed inter boys girls pictures of naked from “Playboy” magazine, and Curtis then ob- “magazines tained a search warrant for containing photographs of an obscene sexual nature.” apartment police occu- went pied girlfriend and his appellant items from different there seized various in and within it which included locations from within under bedroom bookcase as to source or various boxes unidentified portion ownership. trial a of this mate- At investigating offi- rial identified II, Griggs, Lexington, appel- J. Kirk for cer, group as and then introduced lant. 1.” “Exhibit Gen., Cowan, Atty. Frederic J. Lana posters of some old Exhibit included: Gen., Grandon, Appellate Atty. Asst. Crim. idols, on teenage an article adoles- former Div., Frankfort, appellee. page torn from cent sexual behavior magazine page and another “Hustler” LEIBSON, Justice. magazine on of a pictures same women their sex convicted naked man and two appellant was indicted and organs pamphlet entitled “First exposed, a Sodomy Degree in the First committed graphically illustrating and describ- years age. He Hand” boy under 12 activity, ing miscella- penitentia- hard-core homosexual twenty years sentenced from various right, pictures boys neous cut out appeals as a matter of ry, and he publications other such newspapers and claiming errors: three did not they improve, did not catalogue, and some nondes- a mail order individual named cript buy notes from an the shoes. appears pages photo- It “Don.” neighbor he saw the Appellant’s testified graphs magazines torn or cut out of the youth boy and another named Jonathan done, part, by police at the was least appellant’s apart- into attempting to break during process gathering the this mate- of day ment with knife at the back door the rial. boy’s The testi- after Christmas. mother the that boy appellant At trial testified brought appellant’s fied that her son to she him, and, acts oral sex on on performed of apologize so for the at- house he could occasion, the appellant masturbated at boy’s also tempted The mother break-in. explained appel- same time. He also having problems with the testified she was neighbor lant was a who had befriended boy’s lying had talked to the social and

him, go appel- he often to the would having him counselor worker about see a Appellant house to TV. had lant’s watch for it. library, riding, him to horseback taken the appellant post- The identified some appellant’s play tennis. Sometimes years belonging ers as to his sister from girlfriend boy went them. testi- with teenager, pictures him when was a and when appellant fied the showed of back she girls boys ‘Playboy’ in “a “naked” she the girlfriend the testified said some of book,” boy but the not asked to iden- was During hers. his testi- material seized was the tify any of material “Exhibit 1” as any mony cutting the denied out appellant having to him. Common- been shown pictures seized of the obscene articles solely “Exhibit 1” was introduced wealth’s police, they probably by the and said were through the of Officer Curtis. years articles 10-15 old. obscene offered, prosecutor the When the advised undated, pages except themselves were the judge: magazine from were a “Decem- “Hustler” boy] just type “He described what of [the Appellant “Don” as ber” issue. identified shown, Judge. pictures he I don’t was neighborhood left a fellow the who boy identify any particular think can friendly. attempt to these notes in an pictures.” stopped friendly Appellant being he said suspected might be Don he Don when investigating officer could not iden- “gay.” tify among which the materials seized be- longed to the appellant, which to apartment leased the Originally appellant girlfriend. the court as When commented conducted, was but at where search just pictures, pic- “This is

to one apartment of had been time the search it?”, club, prosecutor ture of a isn’t ball name, girlfriend’s leased certainly responded, appellant] “He [the process moving out. appellant explain jury if he could testifies.” [it] Appellant’s identified some girlfriend appellant girlfriend Both the and his did posters materials seized and other testify. appellant any denied that sex- belonging her. Officer Curtis admitted boy. him and the ual acts occurred between they say magazines he could whose not boy he He testified let the watch TV be- cut out the and he did not know who seized boy’s home was cause the TV at broken. articles. library, play taken him to the He had prove undertook to The Commonwealth even, tennis, one riding, horseback pedophile as central occasion, the home visit to opening case. In his statement its grandmother in Ohio. He stat- appellant’s persuade we’ll be- prosecutor “I think said boy angry he did that the because ed this is a defendant yond doubt him buy tennis shoes for new Reebok pre- has never been pedophile.” This word Christmas, promised buy if nor purposes cisely defined for boy’s grades improved. school Since at filth, perversion, deg- explanation of Here’s the any clear

has there been in this case.1 radation and sickness of mind.’ We can’t supposed prove what it that, you you we can show show all but Curtis, undertaking to de- Officer when gentlemen, he had. Ladies and what as a result of the scribe what was found picture pedophile, pure and that’s a said, alia, apartment, inter search simple. Typical pedophile.” that, article from a “and also there’s an attempts to de- magazine closing argument prosecutor that the author also on, at the pedophallia Later fend said: [sic?].” examination, prosecu- end of his direct any problem “I don’t think there’s tor asked Officer Curtis: Dyer fact that David went out of his things riding, word, way to do to take him pedo- ... “Q. You’ve used the 26. promise buy things, him then asked pedophile phile. jury Tell the what him watch him over to the house to let means. television, typical, this is that’s because (sic?) engag- is the adult Pediphee A. pedophile. you you’re do when a what ing activity in sexual with children. You treat them nice.” training re- Q. you any had 27. Have appellant’s objected counsel point At this garding pedophiles? use of a term here.” “to this constant Yes, A. sir.” objection and admon- court “sustained” the then asked Officer Curtis: prosecutor his refer- jury: ished the “Don’t consider jury you “Basically, would describe being pedophile.” to the defendant ence Whereupon pedophile?” of a the behavior course, far too late point this it was Of objected prosecu- defense counsel any to have made for such an admonition pursue the matter further. tor did not enough, prosecu- Strangely difference. the officer was On cross-examination argu- the same line of tor then continued by defense counsel: asked commenting length on the con- ment at you “Q. only anything seized You 1,” “Exhibit and the defendant’s tents of depict something as thought might objection to this was “overruled.” said, I the search warrant believe this jury had a difficult time with pornographic nature. they after and a half hours case. One sir, yes, that Anything A. that would— deliberating they judge: told the began to, ah, charac- possible relate would enough we have not had just feel that “We pedophile. teristics of a They to view the then asked evidence.” post- Q. you I And do think that see. interview with the videotape of the child’s showing age teen stars or what- ers tape was told the social worker and were the aim of determin- ever is toward why asked part of the evidence. When something finding ing or called to had not been the social worker (sic)? depict pedophilia would just “I responded am testify judge to deliberate itself, jury went back judge.” could even- in and of A. Not hours and a half approximately two the characteristics tually fall into they the court compared they other informed pedophile with later charge The Allen agree. material.” couldn’t jury hour later given. One then prosecutor said: closing In “guilty” verdict. reached proving police] came as close “[The there was question is whether The first you mind as in this defendant’s what’s beyond a jury to convince No, get into his we can’t ever prove. can comply doubt sufficient reasonable picture say ‘here’s mind and Sawhill, v. in thinking. the standard Commonwealth what he’s mind. Here’s describe, (1983 ed.) "pedophilia” as Dictionary defines "pedophilia" if ate "pedophile" and 1. What are the perversion in which children psy- "sexual anything, the standard nomenclature object,” "pedophile” as "one preferred sex provided For chiatry in this case. is nowhere pedophilia.” worth, Collegi- New affected Webster’s Ninth it is what sufficiency (1983), of the evidence federal ruled on the and the Ky., 660 S.W.2d standard in Jack- facts and circumstances exist- process established under the due 307, S.Ct. Virginia, 443 U.S. ing present son v. case.” 2781, (1979), especially in 61 L.Ed.2d 560 decision of the United States Unlike a jury began light of what occurred after the Court, is not bound in Supreme our Court deliberating. the Com- At the threshold by a United States Court subsequent cases pre- is not argues monwealth the issue v. Com- Appeals’ decision. Conklin Cf. motion for served because defendant’s monwealth, Ky., 799 S.W.2d 582 at the close of the Com- a directed verdict Leibson reasoning Carpenter v. But at case was not renewed monwealth’s point persuasive. criminal on this evidence, citing of all the our Court’s close rule application procedural cases the Blair, Ky., Opinion in Commonwealth limited to Kimbrough and Blair must be (1980), the evidence adduced sub- situations where stated: Court motion for a sequent to the defendant’s rule, in Kim procedural “The as clarified is sufficient to cure directed verdict [Kimbrough brough exists at the evidentiary shortfall which (1977)], is that in Ky., 550 S.W.2d 525 is made. time it sufficiency of order for the issue of the appel preserved the evidence to be in problem for the review, wishing to the party late the use the evidence fails to raise a this case is appeal insufficiency as a basis for his only question sufficiency; it raises a of must have moved for a directed verdict credibility. if the evi question of Even evidence, just all the at the close of alleged is viewed as dence of the victim the case at the close of Commonwealth’s uncorroborated, standing alone it is still in chief.” the prove to all the elements of sufficient Kimbrough rule is sound where charged, jury a issue. crime and to create presents the Com- defense evidence after in long Kentucky the rule in It has been may case have been monwealth’s rape unsupported that “the testimo cases any evidentiary insuffi- sufficient to cure contradictory ny prosecutrix, of the if not ciency, Kimbrough is at best a state but incredible, improbable, inherently or procedural give way to the rule which must conviction,” a may be sufficient sustain that a conviction constitutional mandate Commonwealth, Ky., 459 Robinson v. on insufficient evidence cannot based 147, (1970), is no and there S.W.2d Indeed, Blair, Borders, Carpen- stand. sodomy rule in a rationale for a different ter, by whose convictions were affirmed uncorroborated, Here, although case. Blair, in held supra, our Court were later is neither testimony of the victim by way corpus entitled to relief of habeas incredible, self-contradictory, nor inherent (6th Leibson, in 683 F.2d 169 Carpenter v. standing suf ly improbable, and alone Cir.1982), stating Appeals the U.S. Court of challenge a under ficient to withstand (Id., 172-73): Sawhill, supra, Commonwealth “Since it was not even contended that though supra, even Virginia, Jackson after evidence offered the defendants against mitigated the bulk of the for a directed the denial of their motions it. supported the Commonwealth’s verdict case, legitimate Unfortunately, although boy’s interest the state had no of the motion for requiring renewal to make a testimony was sufficient directed verdict. unwilling to rest its testimony, sought to bol boy’s

case on the testimony the contents of ster that really to determine There is no need boy never But the appellant’s bookcase. Supreme Court of whether the relevancy by identifying of established not in properly applied a new rule or apartment from the the evidence seized Supreme Kimbrough, as the Court [of girlfriend appellant and have shared Kentucky] nevertheless should having young appel- as to him. At the time tim was too been shown attract lant.” “Exhibit material Commonwealth’s offered, 1” was it was with the excuse Hampton, held: we supports testimony “it child’s that he 1) “qualified A social is not as an worker type was shown this of literature.” express expert opinion” on the mental of Exhibit falls far short this claim. person condition at the time act of a beyond 1” is material in “Exhibit far criminally accused. what in the boy’s description of he saw 2) testimony proffered “The as went It appellant’s apartment. is obvious question guilt ultimate or inno- purpose, purpose, real the sole of this evi- appellant, cence ...” was, appel- general, prove dence 3) (and, “Mitigating” evidence and, converse- pervert, particu- lant was sexual evidence) ly, aggravating qualify does not lar, prove pedo- perversion that his except perhaps admissible as “back- reading philia, and on the to do so basis ground penalty phase information” possession in his material found some penalty of a death case. number which would offend substantial ap- jurors, against them prejudicing long recognized We have a distinction proved pellant regard without to whether it condi- between about mental anything against porno- him. The various of an and “his mental tion accused actual pictures the non- graphic and articles and place” at a time particular attitude descript photographs and memorabilia crime, allegedly when he committed a meaning provid- except were devoid Commonwealth, Ky., 449 Koester v. police investigating ed officer’s tes- (1970), stating: S.W.2d timony la- prosecutor’s and the objective “It is the difference between an beling proof seized that conclusion, material opinion subjective and a [ci- appellant pedophile. was a put way, it tation Or another omitted.] the mental ab- is difference between declare, unqualifiedly, We that citizens pro- normality specific ‘product’ subject not and residents of are thereby.” duced upon criminal the con- to conviction based Commonwealth, Ky., v. until Pendleton tents of their bookcase unless and (1985), 549, 553 we held 685 S.W.2d linking is to the crime “[t]he there evidence it correctly refused Pendleton’s at- trial court boy’s in- charged. testimony If the psy- testimony of tempt to introduce the link, to connecting tended be the evidence that chologist Kroger.... effect boy to that would be limited which profile psychological Pendleton’s having shown to identify could been of a sex offender.” consistent with that pro- supposed him. If is to this material We stated: appellant picture pedo- vide a opinion “An as to whether the accused phile, profile such evidence is inadmissible commit prove guilt ability propensity or had the or in criminal either cases is [sodomy year act of a six such an Hampton innocence. v. old] opinion an on the (1984), improper it is Ky., presented 742 because 666 S.W.2d fact, is, guilt." innocence or admitting profile ultimate that stronger a far case nevertheless, one, and, Id. evidence than this properly held court had exclud-

we the trial psy testimony If the trained ed as irrelevant accused chologist to effect con “profile designated or does not have ... from a witness does “... evidence worker,’ of a sex offender” then testi- sistent a ‘clinical social who inadmissible, testimony opinion fortiori, fied avowal that his an ac investigating police in- officer that appellant not have’ become ‘would pedophile, based profile has the yeár twelve old victim cused volved with the library miscella of his (appellant’s) psycho- on the contents because ‘based residence, found by history,’ this vic- neous memorabilia logical development, ” 610(B)).” test, “Frye Frye short of of admissible It fails falls the threshold § States, (D.C.Cir. 293 F. 1013 opinion v. United Officer suffers evidence. Curtis’ 1923), requires proof subject Koester, that the all of the covered defects testimony expert matter of has attained Pendleton, plus failing Hampton commu general acceptance scientific elementary principles involved in de- meet nity. Lawson, relevancy. See termining Ken- Handbook, (2d Law tucky Evidence 2.00 § has Recently, our Court been confronted 1984). The trial court’s decision ad- ed. involving cases a similar series of “Exhibit 1” as

mit the Commonwealth’s at problem, the Commonwealth wherein in this prejudicial case was error. evidence tempted testimony to bolster profile regard victim with evidence Further, because the contents of Com- ing the “child sexual accom so-called abuse 1” monwealth’s “Exhibit were central Bussey syndrome”: modation v. Common closing opening the Commonwealth’s wealth, (1985); Ky., 697 S.W.2d Lan argument to the effect that the Common- Commonwealth, Ky., trip v. prove, prove, did wealth would that the (1986); Commonwealth, Ky., Hester appellant pedophile, was a and to the testi- (1987); 734 S.W.2d 457 and Mitchell mony investigating police officer in Commonwealth, Ky., 777 S.W.2d support premise, of this these comments all of reversed these cases be We testimony improper. and this were cause the to ad evidence insufficient preservation argues lack of Commonwealth “Frye’’ mit the under the test: of argument testimony. to this line “There was no evidence that the so- appellant responds that since his coun- syn- called accommodation ‘sexual abuse objected vehemently profusely sel accept- drome’ attained a scientific has 1,” objec- Commonwealth’s “Exhibit these among credibility ance or psychol- clinical protect against should tions suffice to fur- ogists psychiatrists. Even should generated by ther and comment accepted, become ... there would remain the admission of this Exhibit. The record question of whether children other objected shows on some occa- [sexually] similarly who not been had sions, others, continuing but not on at the might develop also the same abused pedophile, using effort to label him a and to symptoms Lantrip, supra, or traits.” and support this characterization to bolster 713 at 817. S.W.2d against case him. argument Profile and to estab- In using the context of this case pedophile, person lish the accused as a error, against terms the accused was and sexually a chil- propensity with molest we need not and decide when where there dren, opposite of a coin but side objection sufficient was because we have stamped side sexual on the other “child already held the case must be reversed syndrome.” This abuse accommodation the use “Ex- because of Commonwealth’s appears nothing “pedophilia” profile to be However, prejudicial hibit 1” was error. attempt at end run more than the an trial, may there a new must because we that our principles around the controlled their use. address Lantrip, Hester, and Bussey, decisions in “pedophile” “pedophilia” The terms and require by much more Mitchell. It will here for rea- improperly were used three proof of way of scientific accreditation and sons: have in the record before probity than we admissibility. testimony to attain us for this 1) proof quali- police officer was provide testimony expert fied to 3) only purpose conceivable inadequate. subject woefully was served “pedophile” “pedophilia” terms 2) the mental state laid to here was to characterize No foundation was establish subject person a with an abnor testimony “a mat of the as the officer’s was in testimony (Law propensity engage “sexual activi appropriate expert mal ter for son, Handbook, ty This was the with children.” framework Evidence Law

654 term, proceedings in which Officer Curtis defined the further consistent opinion. major prosecutor’s thrust closing opening statement as COMBS, SPAIN, JJ., LEIBSON testimony. as well the officer’s Com concur. Ky., 783 Craig, monwealth v. S.W.2d (1990), held “Ramona 389 we that evidence C.J., STEPHENS, except concurs Craig suffering from battered was [the portion respect opinion ad shooting syndrome at the time wife] dressing (Kim Kimbrough issue Craig” a George not evidence of brough Ky., v. condition,” “mental and we overruled Com (1977)). S.W.2d 525 Rose, Ky., monwealth v. S.W.2d J., LAMBERT, separate opin- dissents

(1987) held to the extent the Rose case ion. in never Majority Craig otherwise. explained why or it reached this re how WINTERSHEIMER, J., dissents justices sult. Three dissented from this J., REYNOLDS, separate opinion in which J., Vance, opinion, portion Craig joins. stating: LAMBERT, Justice, dissenting. will, you this is condition “Call it what a ably As Wintersheimer demon- Justice plea support mind.... used to opinion, dissenting strates in his the claims of self-defense. upon majority of error relied Moreover, I preserved. reversal were certainly I that ... do not believe [‘the in majority gone has too far believe the permit- social have should been worker’] Ky., overruling Craig, v. Commonwealth appel- diagnosis ted to make the that the (1990), a decision with the suffering lee such state of from reinstating barely dry, ink our earlier mind.” 783 S.W.2d at 391. Rose, Ky., decision Commonwealth syn- Concepts such as a “battered woman 725 S.W.2d 588 cases, Rose or a Craig drome” case, majority In this seems to have no “pedophile” present have preservation settled rules of abandoned bearing case ex- conceivable criminal necessary gone beyond point well cept they as bear on the accused’s mental agrees dis- Whether one or for decision. condition at the time of the offense. agrees, Craig Commonwealth proposition they should be used this Court Janu- considered decision of fur- acquit convict or without evidence to hardly be said that ary of 1990 and could expert qualified ther experience has demonstrated clear error positively establishing field obsolescence, grounds typically relied entity, recognized condition is a scientific overruling upon for earlier decisions. the to mental tying and then accused this state, is indefensible. Commonwealth Justice, WINTERSHEIMER, dissenting. error, is to the Craig was overruled majority respectfully I dissent the extent it has overruled Commonwealth clearly is sufficient opinion because there point. present In the Rose on this of sod- to affirm the conviction evidence be of a retrial no evidence should the event require do omy. The claimed errors not admitted, permitted, char- no reversal, upon any the ultimate result “pedophile,” acterizing the The the trial was retrial will be same. “pedo- suggesting that he suffers from no fundamentally fair and reversal serves ex- proof from an philia,” unless there is purpose. useful express an pert subject qualified to on the condi- opinion appellant’s mental about first-degree sod- Dyer convicted of tion. inter- by engaging in deviate sexual omy age of a child under in this case course with judgment The conviction and him of the offense reversed, jury convicted years. for A and the case remanded are charged years majority self-styled he to 20 to and was sentenced here seeks become a prison. defender of the bookcase. It creates the of profile issue evidence in an effort presented Pursuant to the at evidence justify magni- of this the reversal case and trial, Dyer was not entitled to a directed importance its in this fies elaborates acquittal argues verdict of as he first case. appeal. Dyer properly preserved has not appellate issue for officer he investigating review because the testified that question was first raised at the close of the obtained warrant for residence a search Dyer prosecution “magazines containing photo- case. This Court has held that of for sufficiency graphs in order for the nature.” issue of of an obscene sexual preserved appellate legal authority evidence for re- The officer had clear under view, party wishing use the insuffi- both law of and the United ciency appeal as a basis for his must States of America to items have obtain the Obviously, sought a directed verdict at the close of all which were introduced at trial. evidence, just not at the end evidence relevant it is ad- of must be before prosecution’s case-in-chief. mitted at Here the Common- trial. evidence corrobo- Blair, Ky., testimony wealth v. 592 S.W.2d 132 rated the victim about (1977); surrounding Kimbrough v. circumstances crime. (1977). Ky., Dyer Consequently photographs 550 S.W.2d 525 failed and articles for a magazines clearly move directed verdict at the close of in the were relevant consequently, all the evidence and is- into Al- properly were admitted evidence. properly preserved. though objected sue not grounds, RCr 9.22. he later on other by there objection was no defense counsel A review of the record indicates that the testimony by Dyer victim that presented prosecu- evidence at trial pictures “Play- had shown him the tion was sufficient. K.R.S. 510.070 re- boy” girls boys. naked book of the quires proof that engaged the defendant deviate sexual intercourse with victim issue relative materials ob- years age. through under of Deviate tained the lawful sexual search has preserved intercourse has been defined as re- properly appellate act of been for gratification persons sexual between not view. A review the record RCr 9.22. involving married to each other indicates the sex that there were six references organs person “pedophile.” of one and the the use first mouth or of the term Here, another. during opening anus of the victim who was reference statement years trial, old at the time of the testi- the Commonwealth and did not draw references, by Dyer objection. fied that was sodomized more The next two also during the Clearly objection, than once. under the as a without were made whole, prosecution. The jury it was not unreasonable case-in-chief Dyer guilty. to find Trowel v. fourth was made Common- reference defense wealth, Ky., 550 of the in- during S.W.2d 530 counsel cross-examination vestigating police officer. The two remain- testimony of the victim was suffi- ing during were made the clos- references to prove cient evidence all the evidence of ing argument prosecution. charged. jury the crimes It established a found unsupported issue. The The officer testified the items during search an article victim was sufficient to meet the burden of the lawful included prosecution in said proof magazine of the and the to from a which the officer test acquittal. Any attempted pedophilia. a directed the author to defend refuse verdict of easily Dyer object did to this The rational trier of fact could have not statement. any if law found that the essential elements officer was then asked he had of the beyond a in enforcement education child molestation crime reasonable doubt were “Yes.” then presented Although responded trial. and he He was the evidence at “pedophile” the admitting that sufficient asked to described word there is evidence is pedophile the testified that “a support sodomy, to the conviction of the officer 656 monwealth, (1985); Ky., in engaging activity sexual 685 S.W.2d 549

an adult objection There was no to this children.” RCr 9.24. testimony. majority The there was evidence admits During closing argument pros- of the the to That support sufficient conviction. ecutor, “typical he to as a Dyer referred opinion affirming should be the end of Again, objection. no pedophile.” there was lengthy the than the ma- conviction rather final to also reference the term was seeking jority opinion to rationalize a rever- prosecutor during closing argument by the A sal of the careful review of conviction. con- objected and defense counsel clearly you indicates record that when use term The objection stant here. sufficiency quality consider the immediately jury and the was sustained particularly evidence re- properly No further was admonished. no victim and the entire there is sub- requested. lief was any possibility upon that the result stantial to the use Clearly, Dyer object failed to any Consequently, retrial will be different. failed “pedophile” of the term to ask error, any, regard if in objection further relief when his for “profile evidence” or the use of the word given. admonition There- sustained and an “pedophilia" clearly nonprejudicial. is Cf. fore, preserved for properly the issue is not Commonwealth, 439 Ky., v. Abernathy appellate and he cannot seek fur- review Here, (1969); 949 RCr 9.24. S.W.2d through appellate courts. ther relief majority, the evidence conceded Commonwealth, Ky., 780 v. S.W.2d West guilt clear. There was the defendant’s (1989); Commonwealth,

600 v. Hamilton prosecutorial required no misconduct which (1983); Ky., 659 201 McDonald v. S.W.2d prosecutor any The comments of reversal. Commonwealth, (1977); Ky., 84 total viewed in the context of the must be 9.22. RCr fairness what it has on the trial and effect Disregarding the settled law this State 470 Young, of that trial. United States v. preservation, sufficiency of the evidence (1985). 1 1, 105 S.Ct. 84 L.Ed.2d U.S. misconduct, prosecutorial majority v. dissenting opinion in Morris my See concept its own of the issue seeks review (1989). 58 Ky., S.W.2d and reverse the case. relatively simple majority uses this situation, closing argument by In this far-reaching to launch a broad case prosecutor was fair comment on the The ma- another unrelated case. attack on objec- and was admitted without prob- is a similar jority asserts that there at trial. This has been law tion so- case its lem it raises in this generations. Nugent v. See Commonwealth, Ky., regarding the “profile 639 S.W.2d 761 evidence rule” called (1982). syn- accommodation “child sexual abuse totally lack- Such a statement is drome.” police officer not allowed to attempt ing logic. Clearly this is not an pedophile of a but describe behavior majority plant a small acorn jury merely defined the word for is a bold sapling; even to substitute magazine had used in a article which word when mature oak tree planting fully of a into evidence. already been introduced sexual analogized child objection testimony. this case There was no ma- prosecutor syndrome. was obvi- The statement abuse accommodation ously on the facts evidence and shaky comparison based to over- jority uses therefrom. fair inference reflected a Ky., 783 Craig, rule Commonwealth Commonwealth, Ky., Williams (1990). involved Craig, supra, S.W.2d S.W.2d manslaughter convic- affirmance held that the bat- in which this Court tion event, remarks made the isolated syndrome is a mental tered woman closing did prosecutor by the condition, syn- testimony on the expert error when con- to reversible not amount than may come from someone other drome in context. Pendleton Com- sidered in cer- or clinical psychiatrist psychologist limited circumstances. tain examination the briefs

A careful party

this case reveals neither process cited

appellate the case overruled perpe- majority

or the case used overruling. giant Clearly this is a

trate totally beyond effort that

leap

authority majority of even a of this Court place in has no this case. The noble

language majority defending pales insignifi- of the state into

bookcases inva-

cance when we consider the ultimate privacy upon year

sion of visited an 11 old

boy by sodomy. The conviction should respects. affirmed in all

REYNOLDS, J., joins in this dissent. Kentucky,

COMMONWEALTH of

Appellant, Bailey MILES, Jr., Appellee.

Kenneth

No. 89-CA-2171-MR. Appeals Kentucky.

Court 15,

Feb. 1991. 19,

Rehearing May Denied 1991.

Discretionary Review Denied

Supreme Court Nov. 1991.

Case Details

Case Name: Dyer v. Commonwealth

Court Name: Kentucky Supreme Court

Date Published: Sep 26, 1991

Citation: 816 S.W.2d 647

Docket Number: 90-SC-248-MR

Court Abbreviation: Ky.