Kevin Ray HILLARD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
No. 2002-SC-0702-MR.
Supreme Court of Kentucky.
Feb. 17, 2005.
As Modified April 22, 2005.
158 S.W.3d 758
Appellants, however, have not raised this issue. And though in the context of a writ case where the lower court was acting outside its jurisdiction our predecessor court noted that “it would be a most inept ruling to deny the writ, require a trial on the merits, and then on an appeal be forced to reverse the case,”24 it also noted that “question [of jurisdiction] is squarely presented”25 and that jurisdiction was “the very question ... before [the Court].”26 Thus, because the issue is not before us and was never even presented to the Court of Appeals, we cannot reverse the denial of the writ on this ground.
IV. CONCLUSION
For the foregoing reasons, the judgment of the Court of Appeals is affirmed.
LAMBERT, C. J.; COOPER, GRAVES, JOHNSTONE, SCOTT and WINTERSHEIMER, JJ., concur.
Gregory D. Stumbo, Attorney General, Michael Harned, Brian T. Judy, Assistant Attorneys General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.
COOPER, Justice.
Appellant, Kevin Ray Hillard, was convicted by an Ohio Circuit Court jury of one count of unlawful transaction with a minor in the first degree,
I. SUFFICIENCY OF THE EVIDENCE.
A person is guilty of unlawful transaction with a minor in the first degree when he knowingly induces, assists, or causes a minor to engage in illegal sexual activity....
On the night of June 29-30, 2001, Appellant, who was then at least twenty-nine years of age,1 hosted a party at his residence in Beaver Dam, Ohio County, Ken-
Since
The Commonwealth posits that the conduct described by A.W. violated
However, the conduct described by A.W. did violate
(a) He subjects another person to sexual contact without the latter‘s consent.
(b) In any prosecution under this section, it is a defense that:
- The other person‘s lack of consent was due solely to incapacity to consent by reason of being less than sixteen (16) years old; and
- The other person was at least fourteen (14) years old; and
- The actor was less than five (5) years older than the other person.
A.W. was fifteen years of age, thus statutorily incapable of consent,
Certainly a proper test to determine if the part of the body is “intimate” should revolve around an examination of three factors: 1) What area of the body is touched; 2) What is the manner of the touching, and 3) Under what circumstances did the touching occur. Id. Professors Lawson and Fortune assert matter-of-factly that “[d]igital penetration of the ... anus is sexual abuse.” Robert G. Lawson & William H. Fortune, Kentucky Criminal Law § 11-6(a)(1), at 437 (1998). Under the facts of this case, we have no difficulty concluding that A.W.‘s “fisting” of Appellant was “sexual contact.” Appellant‘s statement that it “felt great” sufficed to prove that Appellant solicited the conduct for the purpose of his own sexual gratification.
The 1974 Commentary to
We conclude that the evidence was sufficient for a jury to believe beyond a reasonable doubt that Appellant committed the offense of unlawful transaction with a minor in the first degree. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991); cf. Young, 968 S.W.2d at 673 (“If Appellant had successfully persuaded P.C. to engage in any sexual activity with him ..., the offense described in
II. EXCLUSION OF EVIDENCE OF VICTIM‘S SEXUAL HISTORY.
Appellant asserts that the trial court erred in sustaining the Commonwealth‘s motion to exclude evidence of A.W.‘s sexual history, correctly noting that the pre-2003 version of
III. ALLEGED JUROR MISCONDUCT.
Juror No. 35 was the ex-brother-in-law of defense witness, Melissa Cline, and may or may not have been an acquaintance of Appellant. He was one of the twelve jurors who sat on the case and agreed to both verdicts. Appellant asserts that Juror No. 35 did not respond to voir dire questions as to whether any jurors knew Appellant or any witnesses for the defense. In claiming reversible error for this, Appellant relies on United States v. Colombo, 869 F.2d 149, 151 (2nd Cir. 1989), for the proposition that deliberate concealment or purposely incorrect or misleading answers by a juror may impair a party‘s right to meaningful exercise of causal or peremptory challenges; United States v. Perkins, 748 F.2d 1519, 1532 (11th Cir. 1984), for the proposition that false answers give rise to a presumption of bias (“Goad‘s dishonesty, in and of itself, is a strong indication that he was not impartial.“); and McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 850, 78 L.Ed.2d 663 (1984), for the proposition that a new trial may be obtained by demonstrating that a juror “failed to answer honestly a material question on voir dire,” and “that a correct response would have provided a valid basis for a challenge for cause.” See also Adkins v. Commonwealth, 96 S.W.3d 779, 796 (Ky. 2003); Anderson v. Commonwealth, 864 S.W.2d 909, 911-12 (Ky. 1993). However, we need not determine the applicability of these precedents to this case, because there is no evidence that Juror No. 35 failed to honestly answer a material question asked of him on voir dire.
Juror No. 35 was not one of the thirty-one persons initially seated as potential jurors for this case (enough for twelve jurors, one alternate, and nine peremptory strikes for each side,
Approximately thirty minutes into voir dire, Juror No. 35 was called to replace a juror who was excused for cause. For some unknown reason, defense counsel‘s microphone was on and Appellant can be clearly overheard stating, “I know him,” and identifying Juror No. 35 by name. Upon his arrival at the jury box, Juror No. 35 immediately volunteered that he knew the Commonwealth‘s attorney because he (the juror) had been a crime victim and the Commonwealth‘s attorney had prosecuted the case against the perpetrator of that crime. However, Juror No. 35 was not asked, as other potential jurors had been, whether he would have responded affirmatively to any of the other previous questions. During defense counsel‘s voir dire, Juror No. 35 was questioned about his experience as a crime victim but was never asked if he knew Appellant or any of the potential witnesses. Since the juror was never asked those questions, he cannot be deemed to have failed to answer questions propounded to him.
At a hearing on Appellant‘s post-trial motion for a new trial, a subpoena had been issued for Juror No. 35‘s appearance but had not been served. The motion was continued until the next day. Again, Juror No. 35‘s attendance had not been procured, but Appellant did not request another continuance. Melissa Cline testified at the post-trial hearing that Juror No. 35 was her ex-brother-in-law, but that she had divorced his brother six months before trial and changed her name from the juror‘s last name back to her previous married name of “Cline,” perhaps explaining why Juror No. 35 did not recognize her name when it was read in open court. She also testified that Juror No. 35 was a “good man” and that she had never had any “trouble” with him. Finally, it could not have prejudiced Appellant that Juror No. 35 did not reveal his acquaintanceship with Appellant if Appellant, himself, recognized that acquaintanceship and never requested that the juror be excused for cause. Absent any evidence that Juror No. 35 deliberately withheld information during voir dire or that any prejudice resulted to Appellant from the failure to acquire this information, no reversible error occurred.
IV. PROSECUTORIAL MISCONDUCT.
A. Abuse of subpoena power.
The prosecutor caused subpoenas to be served on N.M. and J.S. to appear at his office for ex parte interviews.
However, we also agree with the Commonwealth that this misconduct does not require either a dismissal of the indictment or a retrial. After all, the prosecutor may have been able to obtain the same information from the defense witnesses by voluntary interviews. Standard Oil Co., 316 F.2d at 897. The appropriate cure for such misconduct is to preclude the prosecutor from using any information obtained solely from the improper interview. Rita v. State, 674 N.E.2d 968, 971 (Ind. 1996). Defense counsel, however, did not request that relief but only objected on grounds that the prosecutor had not permitted discovery of the notes he had taken during the interviews. Having failed to raise the issue before the trial court, Appellant has not preserved it for appellate review.
B. Threatening or intimidating witnesses.
The prosecutor revealed during his cross-examination of N.M. not only that he had issued a subpoena to compel N.M.‘s attendance at an ex parte investigative interview, but also that, prior to the interview, he informed N.M. of the definition of perjury. N.M. testified that he believed the prosecutor was trying to intimidate him into agreeing with the prosecutor‘s theory of the case. Nevertheless, N.M. testified that both his statements to the prosecutor during the interview and his testimony at trial were truthful.
Although no Kentucky cases have addressed the issue, federal courts have consistently held that a judge or prosecutor who threatens or intimidates a defense witness who is otherwise willing to testify into refusing to testify thereby denies a defendant his or her constitutional rights to due process and compulsory process. Webb v. Texas, 409 U.S. 95, 98, 93 S.Ct. 351, 353-54, 34 L.Ed.2d 330 (1972) (per curiam) (judge‘s unnecessarily strong admonition against perjury aimed at discouraging defense witness from testifying and which caused witness not to testify violated defendant‘s constitutional rights); United States v. Vavages, 151 F.3d 1185, 1188-93 (9th Cir. 1998) (prosecutor‘s thinly-veiled threat to prosecute defense witness for perjury and to withdraw plea agreement in witness‘s own unrelated case if witness testified in support of defendant‘s alibi required reversal of defendant‘s conviction); United States v. Blackwell, 694 F.2d 1325, 1334 (D.C. Cir. 1982) (“[W]arnings concerning the dangers of perjury cannot be emphasized to the point where they threaten and intimidate the witness into refusing to testify.“); United States v. Morrison, 535 F.2d 223 (3d Cir. 1976) (where witness was previously willing to testify for defense that she (when a juvenile) committed the offense with which Appellant was charged, but invoked her Fifth Amendment rights after prosecutor subpoenaed her to his office and threatened to prosecute her for both that offense and perjury, defendant was entitled to a new trial and, if witness refused to testify and government did not
However, “perjury warnings are not improper, per se.” Vavages, 151 F.3d at 1189. “[A defendant‘s] rights are not trenched upon by mere information or advice about the possibility of a perjury prosecution, but by deliberate and badgering threats designed to quash significant testimony.” United States v. Davis, 974 F.2d 182, 187 (D.C. Cir. 1992). Reversal is required only when the judge‘s or prosecutor‘s conduct interfered substantially with the witness‘s free and unhampered choice to testify. United States v. Pinto, 850 F.2d 927, 932-33 (2nd Cir. 1988). Thus, if some other reason motivated the witness‘s refusal to testify, the threats are deemed harmless. United States ex rel. Jones v. DeRobertis, 766 F.2d 270, 274-75 (7th Cir. 1985)(state‘s contact with inmate witnesses deemed harmless where evidence showed the witnesses may have believed defendant‘s claim was meritless). And, if the witness did, in fact, testify favorably for the defendant, the threats are deemed harmless. Johnson v. Renico, 314 F. Supp. 2d 700, 709-10 (E.D. Mich. 2004). See also United States v. Thompson, 130 F.3d 676, 687 (5th Cir. 1997); United States v. Stewart, 820 F.2d 370, 375-76 (11th Cir. 1987). That is especially true here where N.M. not only testified favorably for the defense but also clearly indicated that he was not intimidated by the prosecutor‘s reference to the perjury statute.
C. Failure to provide discovery of prosecutor‘s notes.
The prosecutor did not purport to have taken a written or recorded statement from N.M. during the ex parte interview.
D. Alleged unsworn statements.
During his cross-examination of N.M., the prosecutor brandished what were purported to be notes that he had taken during the ex parte interview, intimating that they reflected N.M.‘s prior inconsistent statements. Appellant asserts that the prosecutor used these notes to introduce N.M.‘s unsworn statements at trial. Of course, if the notes did reflect any prior inconsistent statements of N.M., those statements were a proper subject of cross-examination and admissible not only for impeachment but also for substantive purposes.
Accordingly, Appellant‘s conviction of unlawful transaction with a minor in the third degree and the sentences imposed therefor are VACATED, and his conviction
LAMBERT, C.J.; GRAVES, KELLER, SCOTT, and WINTERSHEIMER, JJ., concur.
JOHNSTONE, J., dissents by separate opinion.
JOHNSTONE, Justice, dissenting.
I respectfully dissent because the majority‘s construction of
I. Notice of Charges
On August 30, 2001, Hillard was indicted for the offenses of use of a minor in a sexual performance, unlawful transaction with a minor in the first degree, and three counts of unlawful transaction with a minor in the third degree. Later, he was convicted and sentenced. He appealed and the majority has reached a decision herein. But it is this decision—not the indictment, not the proof at trial, and not the jury instructions—that gives Hillard his first notice of the specific charges for which he now stands convicted. This is the untenable result reached by the majority today.
Hillard was convicted of first-degree unlawful transaction with a minor in connection with paying A.W. to “fist” him.
Hillard contends that the jury‘s findings do not support the conclusion that he committed any sexual act prohibited by statute. The Commonwealth responds that the underlying illegal sexual offense was prostitution. The majority disagrees with both parties. While it concludes that the definition of prostitution does not fit, the majority does not reverse Hillard‘s conviction. Rather, the majority formulates its own theory of the case and retroactively applies this new theory to a trial that ended long ago. After carefully sifting through the evidence adduced at trial, the majority concludes that the evidence supports a finding that Hillard was guilty of third-degree sexual abuse. Of course, Hillard was never charged with the underlying offense of third-degree sexual abuse. And, the elements of third-degree sexual abuse were never submitted to the jury. Nonetheless, since the definition fits, the majority concludes that Hillard‘s conviction for unlawful transaction with a minor in the first degree was supported by the evidence at trial.
Hillard had the basic and fundamental constitutional right to be given notice of the specific charges against him before he was put on trial. See, e.g., Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948); Malone v. Commonwealth, 30 S.W.3d 180, 183 (Ky. 2000). Giving him notice only now is truly sentence first, verdict second. His conviction must be reversed.
II. Proof of Every Element of the Offense
The theory that Hillard‘s conviction for unlawful transaction with a minor in the first degree is based on the underlying offense of third-degree sexual abuse did not exist until the majority opinion was drafted. While this new theory might conform to the evidence, it does not conform to the jury instructions. Apart from the lack of notice, this requires reversal of Hillard‘s conviction.
In a criminal case, the government must prove every element of the offense charged beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361, 90 S.Ct. 1068, 1070-71, 25 L.Ed.2d 368 (1970); Commonwealth v. Collins, 821 S.W.2d 488, 490 (Ky. 1991). The jury instruction for unlawful transaction with a minor in the first degree violated this fundamental principle because it did not require the jury to find every element of the underlying illegal sexual offense. And, of course, we discovered for the first time in the majority‘s opinion that the underlying offense is third-degree sexual abuse.
There are only two elements to third-degree sexual abuse: (1) subjecting another person to sexual contact (2) without the latter‘s consent.
“Sexual contact” is defined as “any touching of the sexual or other intimate parts of a person done for the purpose of gratifying the sexual desire of either party.”
Like the majority, I have “no difficulty concluding that A.W.‘s ‘fisting’ of Appellant was ‘sexual contact.‘” But unlike the majority, I believe that this was an issue
Hillard admittedly did not preserve the error by objecting to the instructions. But, in his defense, the error did not exist at the time. Rather, it came into being with the majority‘s retroactive theory of the case. As such, I simply cannot fault the defense for failing to object to an error that did not yet exist.
III. Abuse of Subpoena Power
The majority concedes that the prosecutor unlawfully subpoenaed two teenage witnesses to his office and unlawfully compelled them to give him a statement under the threat of perjury. But the majority deftly changes the issue from the Commonwealth‘s violation of the law to one of trial error. This slight of hand permits the majority to characterize the Commonwealth‘s blatant violation of the law as unpreserved error.
The prosecutor‘s abuse of power first came to light at trial during the following exchange during the Commonwealth‘s Attorney‘s cross-examination of N.M., who was a defense witness:
CA: Can you tell the jury whether or not you have ever spoken to me before?
N.M.: Um huh.
CA: And when I spoke to you, I let you know that anything you said was pretty serious. I mean this is a serious matter.
N.M.: Right.
CA: And I actually subpoenaed you to come to my office?
N.M.: Right, you brought me a subpoena at Dairy Queen.
CA.: And I also brought out there a subpoena for [J.S.], is that correct?
N.M.: Correct.
C.A.: Now, you showed up at my office?
N.M.: Correct.
C.A.: And I let you know right off the bat how serious a charge this man is facing, and I read you the definition of perjury?
N.M.: Right, every time ... before I spoke, you brought that up.
C.A.: So, that‘s a yes or is that a—
N.M.: Right.
C.A.: So, I wanted you to know that this was serious?
N.M.: Right.
C.A.: Now—
N.M.: But ... I don‘t feel that you wanted me to know it was serious. I feel [that] you were trying to intimidate me—
C.A.: O.K.
N.M.: —into saying what you thought was true.
C.A.: O.K., that‘s your feeling and you‘re entitled to that. Now, do you recall talking to me in that office with [J.S.]?
N.M.: Um huh.
C.A.: And you noticed at that time I made a lot of notes? Do you remember me making a bunch of notes? In fact, I made them with a blue-colored pen—
I would agree with the majority if the defense had learned of the Commonwealth‘s Attorney‘s unlawful actions prior to trial. In such instance, the defense would have had time to formulate a strategy and determine what relief was available. And in such a scenario, the defense fairly could be held accountable for failing to take appropriate action. But I cannot reward the Commonwealth, as the majority does herein, for successfully concealing its unlawful acts until trial. These are not mere technical violations of complicated rules. Rather, the Commonwealth‘s unlawful acts remove any “justice” from the criminal justice system.
Relying on the color of his office, the Commonwealth‘s Attorney used unlawful subpoenas to compel two witnesses to come to his office. Neither Hillard nor defense counsel was given notice of the subpoenas. So, of course, neither was present when the witnesses were compelled to give their statements. Once the witnesses were in his office, the Commonwealth‘s Attorney further abused his office by falsely threatening the teenage witnesses with perjury.1 One of the teenagers testified that he felt intimidated and coerced by the Commonwealth‘s Attorney‘s unchecked and unrecorded show of force. While the Commonwealth has the authority to fully investigate its cases, it cannot compel a witness in a criminal case to make an extrajudicial, pre-trial statement without the presence of defense counsel or the defendant. The potential for abuse, e.g., witness intimidation, denial of the defendant‘s constitutional rights, etc., is just too great.
The majority flippantly implies that these violations do not warrant reversal because the Commonwealth could have obtained the same information through voluntary interviews. I believe, however, that what the Commonwealth could have obtained through proper methods of discovery is entirely irrelevant. The end does not justify the means.
The only authorized, lawful means for securing a prospective witness‘s statement before a criminal trial is by deposition, and then, only upon a showing of the witness‘s unavailability at trial.
“As applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it, we must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial.” Lisenba v. People of State of California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166 (1941). The Commonwealth‘s Attorney in this case acted outside of the law and beyond the powers of his office in direct contravention of his sworn duty to enforce and to uphold the law. This gross distortion of the judicial process is utterly incompatible with basic notions of fairness and justice. And no matter what the majority calls it, it stinks. To paraphrase Gertrude Stein, “a skunk is a skunk is a skunk.”
While the usually able members of the majority may be able to hold their collective noses to affirm this case, I cannot. Therefore, I dissent.