Bernice Milton GARRETT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
No. 1999-SC-0356-MR
Supreme Court of Kentucky.
June 14, 2001.
As Amended June 19, 2001.
A.B. Chandler, III, Attorney General, David A. Smith, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.
COOPER, Justice.
Appellant Bernice Milton Garrett was convicted in the Fayette Circuit Court of one count of first-degree rape, one count of second-degree sodomy, three counts of first-degree sexual abuse, and two counts of second-degree sexual abuse, all perpetrated against his biological daughter, T.J., during the period extending from approximately 1991 through December 1997. Appellant was sentenced to concurrent terms of imprisonment of twenty-four years for rape, six years for sodomy, two years each for first-degree sexual abuse, and twelve months each for second-degree sexual abuse. He appeals to this Court as a matter of right,
T.J.‘s date of birth was December 26, 1984. Until December 1997, she lived in the same household with Appellant. T.J. testified that Appellant began sexually abusing her when she was six years old, at first fondling her chest and vaginal areas, later subjecting her to oral sodomy, and, finally, to sexual intercourse. Three other witnesses partially corroborated her testimony. T.J.‘s mother, Hazel Garrett, testified that when T.J. was approximately ten years old, she (Mrs. Garrett) entered a bedroom and discovered T.J. lying on her back on the bed with her legs up and Appellant positioned between her legs looking at her vaginal area. Appellant explained that T.J. had complained of a rash and that he was examining it. T.J.‘s elementary school friend, E.C., testified that, when she and T.J. were in the fifth grade, she visited the Garrett residence
Appellant was arrested on January 19, 1998 and arraigned in the Fayette District Court the following day. He was waived to the grand jury on January 27, 1998 and indicted on March 23, 1998. Meanwhile, Dr. Katherine Bright, a pediatrician specializing in sexual abuse evaluations, examined T.J. on February 9, 1998. She obtained a history from T.J., then performed a complete pediatric examination. Examination of T.J.‘s vaginal area revealed no abnormalities except a nonspecific fragility of the posterior fourchette, which Dr. Bright testified could be attributable to any one of a number of possible causes unrelated to sexual abuse. The examination revealed no sexually transmitted diseases, no pregnancy, and an intact hymen. The doctor testified that a normal pelvic examination does not rule out a history of sexual abuse and an intact hymen does not rule out a history of sexual intercourse. She explained that the hymen does not always rupture during intercourse and that child victims are often too inexperienced to accurately describe the extent of penetration that occurred during an alleged act of sexual intercourse. Since the examination was essentially normal, no treatment was rendered.
I. SUFFICIENCY OF THE EVIDENCE.
Appellant asserts there was insufficient evidence to convict him of first-degree rape. He argues that T.J.‘s trial testimony with respect to the dates on which the alleged abuse occurred so varied from the statements she gave to the police, as reflected by the indictment, that her credibility was insufficient to support a conviction absent corroboration; and that Dr. Bright‘s testimony did not corroborate T.J.‘s claim that she had engaged in sexual intercourse. See Carrier v. Commonwealth, Ky., 356 S.W.2d 752 (1962).
The standard of review with respect to the sufficiency of the evidence is as stated in Commonwealth v. Benham, Ky., 816 S.W.2d 186, 187 (1991):
On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.
The indictment described eleven separate offenses and recited the year each offense was alleged to have occurred. At trial, T.J. testified not to the year each offense was committed, but to her age at the time each offense was committed. We agree with the Court of Appeals’ observation in Farler v. Commonwealth, Ky.App., 880 S.W.2d 882, 886 (1994), that it is “wholly unreasonable to expect a child of such tender years to remember specific dates, especially given the long time period over which the abuse occurred.” As in Hampton v. Commonwealth, Ky., 666 S.W.2d 737 (1984),
Corroboration in a child sexual abuse case is required only if the unsupported testimony of the victim is “...contradictory, or incredible, or inherently improbable.” Robinson v. Commonwealth, Ky., 459 S.W.2d 147, 150 (1970); see also Commonwealth v. Cox, Ky., 837 S.W.2d 898, 900 (1992); Dyer v. Commonwealth, Ky., 816 S.W.2d 647, 651 (1991), overruled on other grounds, Baker v. Commonwealth, Ky., 973 S.W.2d 54 (1998). Otherwise, discrepancies in the victim‘s testimony are matters of credibility going to the weight to be given by the jury to the child‘s testimony. Commonwealth v. Cox, supra, at 900.
T.J.‘s testimony occasionally contradicted her previous statements to the police as to her age and the exact nature of Appellant‘s conduct with respect to the alleged offenses. To the extent that her testimony as to her age and Appellant‘s conduct corresponded with the year and the offense charged in the indictment, Appellant‘s motions for directed verdict were overruled. To the extent that it did not, the motions were granted. The trial judge directed verdicts of acquittal with respect to Count 4 (second-degree rape in 1996), Count 7 (first-degree sodomy in 1995), and Count 8 (first-degree sexual abuse in 1995); and reduced Count 1 (first-degree rape in 1991) and Count 6 (first-degree sodomy in 1994) to first-degree sexual abuse and second-degree sodomy, respectively. The jury found Appellant not guilty under Count 2 (first-degree rape in 1994) and found Appellant guilty under Count 5 not of the charged offense of first-degree sodomy, but of the lesser included offense of first-degree sexual abuse. Thus, the trial judge carefully considered the evidence in ruling on the motion for directed verdicts of acquittal, and the jury found Appellant guilty only of those offenses that were supported by T.J.‘s testimony at trial. As to Count 3, first-degree rape in 1995 or 1996, T.J. testified that when she was eleven years old, Appellant had sexual intercourse with her, that the penetration was “just a little bit,” and that it “hurt.” (T.J.‘s eleventh birthday occurred on December 26, 1995.) There was nothing so contradictory, incredible or inherently improbable about this testimony as to require corroboration.
II. HEARSAY EVIDENCE: KRE 803(4).
Dr. Bright testified that when she examined T.J. on February 9, 1998, T.J. gave her a history of being sexually abused from age seven, including sexual touching, oral sodomy, and sexual intercourse. Dr. Bright was not permitted to repeat T.J.‘s identification of the perpetrator or the details of the sexual acts described by T.J. Appellant asserts that Dr. Bright was an examining physician, not a treating physician, and, thus, her repetition of the history related to her by T.J. should have been excluded on grounds that its prejudicial effect outweighed its probative value. Drumm v. Commonwealth, Ky., 783 S.W.2d 380, 385 (1990); see also Miller v. Commonwealth, Ky., 925 S.W.2d 449, 451 (1995); Bell v. Commonwealth, Ky., 875 S.W.2d 882, 887-88 (1994); Sharp v. Commonwealth, Ky., 849 S.W.2d 542, 544-45 (1993). The Commonwealth responds that Dr. Bright was, in fact, a treating physician, because she testified that she saw T.J. for the purpose of both examination and treatment, thus obviating the need to apply the balancing test described in Drumm, supra. We conclude that the distinction between treating and examining
Prior to Drumm, the common law rule in Kentucky was that a physician consulted for the purpose of prescribing treatment could testify to the case history related by the patient, but that a physician consulted only for the purpose of examination or evaluation could not. Mary Helen Coal Corp. v. Bigelow, Ky., 265 S.W.2d 69, 70 (1954).1 This was also the rule generally applied in federal courts prior to 1975. See e.g., Padgett v. S. Ry. Co., 396 F.2d 303 (6th Cir.1968); United States v. Calvey, 110 F.2d 327 (3rd Cir.1940); United States v. Nickle, 60 F.2d 372 (8th Cir.1932). This distinction between “treating” and “examining” physicians was eliminated in the federal courts with the 1975 adoption of the Federal Rules of Evidence (FRE).
Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. (Emphasis added.)
The FRE Advisory Committee left no doubt that the rule was drafted with an intent to eliminate the distinction between statements made to treating as opposed to examining physicians.
Conventional doctrine has excluded from the hearsay exception, as not within its guarantee of truthfulness, statements to a physician consulted only for the purpose of enabling him to testify. While these statements were not admissible as substantive evidence, the expert was allowed to state the basis of his opinion, including statements of this kind. The distinction thus called for was one most unlikely to be made by juries. The rule accordingly rejects the limitation. This position is consistent with the provision of Rule 703 that the facts on which expert testimony is based need not be admissible in evidence if of a kind ordinarily relied upon by experts in the field.
Drumm v. Commonwealth, supra, was decided in January 1990, more than two years prior to the adoption of the Kentucky Rules of Evidence. Drumm departed from the previous common law rule of automatic exclusion of statements made to examining physicians and formulated a new rule that was, in fact, a modified version of
Furthermore, the balancing test recommended by Justice Powell in Morgan v. Foretich was that contained in
The Drumm rule was subsequently applied to exclude hearsay statements of medical history in Bell v. Commonwealth, supra, Sharp v. Commonwealth, supra and Miller v. Commonwealth, supra. The offenses in Bell and Sharp were committed prior to July 1, 1992, the effective date of the Kentucky Rules of Evidence. See
The Kentucky Rules of Evidence were drafted with the intent of conformance with the Federal Rules.
An early decision was made by the Committee to strive for uniformity with the Federal Rules of Evidence and to propose a departure from the Federal Rules only for good reason. Uniformity between the state and federal rules would serve the purpose of minimizing the possibility of forum shopping and would in time add to the efficiency of the judicial system. The Federal Rules have been in operation since 1975; several states have adopted Rules patterned after the Federal Rules. As a result there is a substantial and growing body of case law construing these Rules, case law which can be of invaluable assistance in the application of a new set of evidence rules for Kentucky.
Prefatory Note, Evidence Rules Study Committee, Final Draft (1989). See also R. Lawson, Interpretation of the Kentucky Rules of Evidence---What Happened to the Common Law? 87 Ky. L.J. 517, 527 (1999).
The language of
All relevant evidence is admissible, except as otherwise provided by the Constitutions of the United States and the Commonwealth of Kentucky, by acts of the General Assembly of the Common-wealth of Kentucky, by these rules, or by other rules adopted by the Supreme Court of Kentucky.
This general rule of inclusion contains no exception for preexisting case law. The Commentary explains that the phrase “other rules adopted by the Supreme Court of Kentucky” refers to “rules of court promulgated by the Supreme Court of Kentucky,” i .e., the Civil and Criminal Rules of Procedure. Commentary to
We conclude that the hybrid rule enunciated in Drumm, which labeled as “inherently unreliable” a statement made to a physician solely for the purpose of diagnosis and which required exclusion of such a statement if its prejudicial effect merely outweighed its probative value, did not survive the adoption of
Of course,
any other relevant evidence, is subject to exclusion “if its probative value is substantially outweighed by the danger of undue prejudice [not if its prejudicial effect merely outweighs its probative value per Drumm], confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.”
III. REAL EVIDENCE: THE VICTIM‘S DIARY.
During direct examination, T.J. admitted that she had kept a diary during part of the period when the sexual abuse was supposed to have occurred, and that the diary did not include the detailed acts of sexual abuse described in her testimony. She explained that the diary was mostly fictional and was written primarily for entertainment purposes. On cross-examination, apparently to prove bias and a motive to falsify, defense counsel had T.J. read from certain entries in the diary in which she had written that she hated Appellant, that he was “tight,” that he drank alcohol and smoked, and that “I hate the way he treats me.” On redirect examination, the prosecutor authenticated and offered into evidence one redacted page of the diary that
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
The Rule does not require introduction of the complete document merely because a portion of the document is offered into evidence. As explained in Gabow v. Commonwealth, Ky., 34 S.W.3d 63, 68 n. 2 (2000), the “fairness” aspect of the Rule is intended to prevent a misleading impression as a result of an incomplete reproduction of a statement. Id. (quoting Commonwealth v. Collins, Ky., 933 S.W.2d 811, 814 (1996) and R. Lawson, The Kentucky Evidence Law Handbook § 1.20, at 48 (3d ed. Michie 1993)). Having candidly admitted that there was nothing “helpful” or “exculpatory” in the remainder of the diary, defense counsel essentially admitted that the exclusion of the remaining portions of the diary did not hinder or jeopardize Appellant‘s trial strategy or theory of the case. Commonwealth v. Collins, supra, at 814.
Appellant now claims that it was “unfair” not to require introduction of the entire diary because such prevented the jury from considering the truth of T.J.‘s claim that the diary was mostly fictional. This theory was not presented to the trial judge, thus was not preserved for review. Kennedy v. Commonwealth, Ky., 544 S.W.2d 219, 222 (1976). Nor was the issue preserved by avowal. Commonwealth v. Ferrell, Ky., 17 S.W.3d 520 (2000). While
IV. CLOSING ARGUMENT.
On the morning of trial, the prosecutor advised the trial judge and defense counsel that T.J. was obviously pregnant and that Appellant was not responsible for her pregnancy. It was agreed that the jury would be informed of that fact so as to avoid the possibility of any prejudice against Appellant. It was also agreed that T.J. would not be questioned about her pregnancy, presumably in accordance with
During the course of the trial today, during the course specifically of [T.J.‘s]
testimony, you‘re going to learn that she is currently pregnant.... We are not alleging in any way that this baby that [T.J.] is carrying is her father‘s---or the defendant in this case. You‘re going to see that she‘s pregnant, so I want to make sure that everyone understands that.
Dr. Bright testified at trial that child sexual abuse victims are often too inexperienced to accurately describe the extent of penetration that occurred during an alleged act of sexual intercourse. During closing argument, defense counsel remarked that since T.J. was pregnant, she now knew how much penetration constituted sexual intercourse. The trial judge sustained the prosecutor‘s objection, prohibited defense counsel from making any further reference to T.J.‘s pregnancy, and admonished the jury to disregard that portion of the argument. Appellant asserts that the trial judge‘s ruling and admonition constituted reversible error.
Attorneys are allowed great latitude in their closing arguments. They may draw reasonable inferences from the evidence and propound their explanations of the evidence and why the evidence supports their respective theories of the case. Tamme v. Commonwealth, Ky., 973 S.W.2d 13, 38-39 (1998), cert. denied, 525 U.S. 1153, 119 S.Ct. 1056, 143 L.Ed.2d 61 (1999). However, they may not argue facts that are not in evidence or reasonably inferable from the evidence. Coates v. Commonwealth, Ky., 469 S.W.2d 346 (1971); Parsley v. Commonwealth, Ky., 306 S.W.2d 284 (1957). Appellant argues that the fact of T.J.‘s pregnancy was in evidence because as soon as she entered the courtroom, the jurors could plainly see that she was pregnant.
It is simply wrong to say that everything the jury sees or observes during the course of a trial is “evidence.” E.g.:
It has been made abundantly clear in civil cases that what is observed in the course of a jury view is not evidence.... “What is observed by them in the course of the view is not evidence.“...
There is no reason for any difference in this respect between civil and criminal proceedings.
Barnett v. Commonwealth, Ky., 403 S.W.2d 40, 45 (1966) (quoting Commonwealth, Dep‘t of Highways v. Hackworth, Ky., 400 S.W.2d 217, 220 (1966)). The cases cited in Justice Keller‘s concurring opinion, ante, deal with the jury‘s observation of a witness‘s demeanor, i.e., facial expressions, fidgeting, etc., as indications of truthfulness or lying. Pregnancy is not demeanor; it is a condition.
For purposes of the offenses of which Appellant was convicted, sexual intercourse “occurs upon any penetration, however slight.”
Pregnancy, of course, can occur in this day and age without sexual intercourse. There is no evidence in this case (and, admittedly, little likelihood) that T.J. was impregnated by artificial insemination. Nor, however, is there any evidence to the contrary. That is why jurors are instruct-
Accordingly, the judgments of conviction and sentences imposed by the Fayette Circuit Court are affirmed.
All concur.
LAMBERT, C.J., concurs by separate opinion as to Part II, in which STUMBO, J., joins.
KELLER J., concurs by separate opinion as to Part IV, in which LAMBERT, C.J., and STUMBO, J., join.
LAMBERT, Chief Justice, Concurring.
While I concur with the majority opinion, I disagree with Part II which overrules a long line of important decisions of this Court. Even if the majority believes these decisions should be overruled, it is unnecessary in this case as Dr. Bright was clearly a treating physician.
This Court has long observed the view that statements of medical history given to treating physicians were reliable, while such statements given to physicians who merely examine for the purpose of collecting evidence lacked reliability. This view was articulated in Drumm v. Commonwealth, Ky., 783 S.W.2d 380 (1990), and followed in a number of subsequent decisions. On the view that
As Drumm and other cases make clear, exclusion of the history given by the person being examined serves to prevent bolstering or lending of physician credibility to the version of evidence told by the witness or party in interest in circumstances where the physician has no direct knowledge. Without such a rule of exclusion, inevitably the jury or trier of fact will tend to give greater weight to the testimony of the witness simply because it is repeated by the physician, when in fact, there is only one version and the physician is merely repeating it.
STUMBO, J., joins this concurring opinion.
KELLER, Justice, Concurring.
Although I concur in the result reached by the majority, I believe the trial court improperly instructed the jury to disregard a portion of defense counsel‘s closing argument, and I therefore write separately as to Section IV. In my opinion, Garrett‘s trial counsel‘s commentary regarding the complaining witness‘s knowledge of sexual penetration at the time of trial fell within the latitude we allow attorneys during closing argument.1 While I believe the trial court erred when it sustained the Commonwealth‘s objection and admonished the jury to disregard trial counsel‘s statement, I do not believe the error warrants reversal because it caused Garrett no prejudice.
The majority contends this statement was improper commentary because there was no evidence introduced at trial from which counsel could draw such a reasonable inference. While I agree completely that attorneys may not argue facts without some evidentiary support,2 I beg to differ with the majority‘s strained interpretation of “facts in evidence.” In my opinion, a fact is “in evidence” when the jury can visually observe and recognize that fact from the jury box.
I have a picture of a horse in my office, but nowhere on the picture does it state that it is a picture of a horse. Yet, everyone who sees the picture recognizes it as a horse. T.J.‘s pregnancy was equally recognizable. Not one person in the courtroom who even glanced at T.J. during her testimony could have possibly harbored any doubt that she was pregnant and I believe the fact of her pregnancy was thus a fact in evidence.
During a bench conference at the beginning of the voir dire examination, the Commonwealth recognized that any juror with the ability to see would quickly discover T.J.‘s pregnancy and thus sought advice and consent from the trial court on how best to avoid the possibility of prejudicing the defendant:
She‘s very pregnant---nine months pregnant. Since she‘s going to walk in here looking pregnant, that‘s something that we‘re going to have to address.
As the majority observes, the Commonwealth informed the jury about T.J.‘s pregnancy during its voir dire and clarified that Garrett was not responsible. Once again, just before the Commonwealth called T.J. as its first witness, the Assistant Commonwealth‘s Attorneys asked to approach the bench and emphasized just how undeniably pregnant T.J. was by advising the trial court that T.J. had just experienced some “dizziness and lightheadedness” which they hoped were not labor-related. Less than a minute later, T.J. entered the courtroom and was sworn as a witness. The video record reflects a fourteen (14) year old girl visibly in the ninth month of pregnancy. If any member of the jury missed the disclosure during voir dire and failed to observe T.J. as she entered the court-
Apparently, the majority believes that T.J.‘s pregnancy was not introduced into evidence because no attorney ever asked her during her testimony whether she was pregnant. A witness‘s testimony is not confined to the words he or she speaks3---certainly not in an era of video records where the image and mannerisms of a witness are available for appellate review.4 While the majority cites authority suggesting that matters observed by members of the jury during a “jury view” of the crime scene are not evidence,5 the Commonwealth presented T.J.‘s obvious pregnancy during T.J.‘s sworn testimony inside the courtroom. Although, without citation, the majority urges a narrow reading of our prior cases, this Court has emphasized countless times that trial courts and juries are in a prime position to assess a witness‘s credibility because they can physically observe that witness‘s demeanor as well as the witness‘s appearance.6 In a very real sense, thus, a testifying witness puts him or herself into evidence. As T.J.‘s pregnancy was an identifiable characteristic of a testifying witness---just as her hair or eye color, her height or weight, her clothing, or any other physical characteristic would be---it was “in evidence” and trial counsel should have been allowed to argue reasonable inferences from this fact.
Nevertheless, I agree with the majority that no reversible error resulted from the trial court‘s rulings. Although I believe defense counsel properly addressed testimony which the Commonwealth could have utilized during its closing argument, the Commonwealth‘s closing argument did not discuss this portion of Dr. Bright‘s testimony. As such, I believe defense counsel
LAMBERT, C.J., and STUMBO, J., join this concurring opinion.