*1 аlone, theory the Court of lied on Anthony PRICE, Appellant, in this Michael found that the evidence
Appeals cases, case, itself only unlike in other lent interpretation one reasonable —that Kentucky, COMMONWEALTH the crack cocaine [Appellant] possessed Appellee. fact, trial, intent to sell. In could parties conceded that the evidence No. 1998-SC-0760-MR. with intent to sell. possession show Kentucky. Court of Supreme by the there could be no confusion method of
jury deciding on another Nov. 2000. total lack of evidence
trafficking. The theory an alternate does not
supporting
require reversal.
Here, the facts indicate that the instruc- create a “substantial possibili-
tion did not any the result would have been
ty Abernathy v.
different.”
Ky., 439 overruled S.W.2d Commonwealth, Ky., part, Blake (1983). Any error was harm- 9.24. was over-
less. RCr The evidence
whelming drugs possessed that the sell, any
with the intent to other theo- Therefore,
ry. even had been precisely,
instructed more there is no indi-
cation that the verdict would have been
any different. The instructions were not
prejudicial received a unani-
mous verdict. harmless,
Any error was Court Kentucky affirm Ap-
should Court of
peals and the Jefferson Circuit Court.
LAMBERT, C.J., and
WINTERSHEIMER, J., join this dissent. *2 General, Chandler, III, Attorney
A.B. Frankfort, Assis- Courtney Hightower, J. General, Attorney Office Attorney tant Division, General, Appellate Criminal *3 Frankfort, appellee. for
COOPER, Justice. 31, 1996, Appel- night
On the of October and killed Anthony lant Price shot Michael Price, wife, sexually then assault- Carol eleven-year-old stepdaughter, L.B. ed his County Jury subsequently A Hart Grand 96-CR-00056, indictment, returned this rape with murder and charging Appellant By separate in indict- degree. the first ment, 96-CR-00057, Appellant was additional counts of charged with seven degree allegedly рerpe- first rape against trated L.B. indictment, Appellant
At the trial of this accident; that he shot his wife claimed L.B., though sexually he abuse he and did her, did have sexual intercourse with rape the offense of thus did not commit Rejecting degree. the first KRS 510.040. shooting, accepting but his version of assault, sexual his version of the of the murder of Appellant guilty found attempted Price and of the first- Carol L.B. was sentenced to degree rape of He twenty murder prison life for each years attempted first-degree rape, for the oth- concurrently to run sentence as a matter appeals er. He Court 110(2)(b), § and as- right, Ky. Const. (1) the rape five claims of error: serts charges murder should have been severed (2) trial; tape recorded purposes for suppressed; confession should have been (3) his constitutional his assertion of have been deleted from to counsel should (4) confession; been L.B. should have (5) testify; incompetent declared not have been excluded from should testimony. L.B.’s during courtroom I. SEVERANCE. Romines, Romines, & Steven R. Weis Louisville, provides: Rule 6.18 Criminal Young, appellant. but charge; the murder may
Two
оr more offenses
be
fend
unduly preju-
in the
or two
he was
charged
complaint
same
real issue is whether
diced, ie.,
whether
felonies or
him
prejudice
or more offenses
whether
misdemeanors,
both, may
charged
or
be
unnecessary and unreasonable. Ro-
or information in
the same indictment
Ky.,
mans
offense, if
separate
count for each
Upon reviewing
the evi-
are of the same or similar char-
offenses
considering
parties’ respec-
dence and
or
on
acts
acter
are based
the same
or
concerning
tive theories
the murder
together
transactions connected
or con-
prior
charge
we conclude that
of a
or
stituting parts
common scheme
L.B.
assaults of
subsequent
sexual
plan.
were, indeed,
to the
inextricably connected
*4
Price.
death of Carol
provides:
Rule 9.16
Criminal
appears
If it
that a defendant or the
30,
November
1984.
L.B. was born on
prejudiced
is or will be
Commonwealth
Appellant
in 1990.
Her mother married
trial,
...
joinder
a
for
the court shall
thereafter,
developed what
Appellant
Soon
separate
order
trials of counts ... or he, himself,
as an uncontrol-
characterized
provide
justice
whatever other relief
re-
He ad-
with L.B.
lable sexual obsession
quires ....
her on four dif-
assaulting
sexually
mitted
occasions,
occurring in
first
trial
mo-
ferent
judge
denied
on October
and the last
severance,
September 1991
rape
tion
that the
finding
for
having
21, 1996; however,
ever
he denied
charges
closely
and murder
were “so
inter-
(L.B. testi-
with her.
sexual intercourse
they
Ap-
twined that
cannot be severed.”
al-
assaults occurred
fied that the sexual
of his
pellant complains that
the denial
five-yеar period
weekly
most
over
to
allowed the
to consid-
motion
sever
intercourse.)
sexual
frequently included
prior
er evidence of his
sexual assaults of
incident,
L.B.
After the October
deliberating
guilt
while
his
or inno-
L.B.
as-
mother of the sexual
informed her
unrelated murder of his wife.
cence of the
confronted,
and,
Appel-
being
upon
saults
deny
did not
Although Appellant
pro-
The three
guilt.
lant admitted his
night
L.B. on the
sexually assaulting
Department
to the local
together
ceeded
31, 1996,
deny any
October
he did
intent to
(DSS)
“get
for
office
Social Services
have sexual intercourse with her. Such
workers
social
help.”
of the DSS
One
sexual
intent is the element which elevates
suicidal, so ar-
thought
Appellant
D
degree,1
in the first
a Class
felo
abuse
him to
admit
rangements were made to
attempt
criminal
to commit first-
ny, to
in-
for
Bowling
Medical Center
Green
B
degree rape,2
felony.3
a Class
depression.
treatment of
patient
Appellant’s prior
evidence of
sexual as
the hos-
discharged from
prove
saults of L.B. was admissible
28, 1996,
time he
intent,
at which
plan
pital
motive and
with
on
as well as
October
report-
workers had
first-degree rape.4 learned that the DSS
respect
charge
to the
enforcement
may well
ed his sexual offenses to law
The admission of this evidence
that he could
to de-
authorities. He then learned
prejudiced Appellant’s ability
have
upon
with and
of the same nature committed
1. KRS510.110.
competent’’);
person
Keeton
the same
510.040;
506.020(1).
2.
KRS
KRS
(1970);
Commonwealth, Ky.,
S.W.2d 612
Lawson,
Kentucky Evi-
generally R.
see
506.010(4).
3. KRS
2.25,
(3d
§
at 105-06
dence Law Handbook
1993)
Commonwealth,
for a discussion of
ed. Michie
404(b)(1);
4. KRE
Roberson
sexual
(1994);
admissibility of evidence of other
Ky.,
315-16
Mess
913 S.W.2d
against the
victim
рerpetrated
same
crimes if
Ky., 472 S.W.2d
mear v.
(1971) ("evidence
opposed
as
to a different victim.
of other sex activities
kill himself
attempting
if
he was
family;
not return to his home and
that
that
return,
accidentally
and killed his
him to
would
shot
allowed
she
when he
wife
arrested,
L.B.;
theory
custody
lose
and that
wife. The Commonwealth’s
employ-
sexually
was so
obsessed
he
terminated from his
that
would be
29th,
intention-
Kentucky
killed his wife
ment.
October
State with L.B.
On
way,
Either
Ap-
get rid
her.
ally
Police Detective Steve Fitts contacted
Appellant’s prior
and subse-
pellant
requested
he сome
evidence
of L.B. was so inextri-
Appellant agreed
quent
office
an interview.
sexual abuse
concerning
with
Fitts at 1:00
on October
the issues
p.m.
cably
meet with
connected
However,
intent
kill his wife that
keeping that
motive and
30th.
instead of
admissible
by bicy-
would have been
appointment, Appellant proceeded
the evidence
KRE
murder.
separate
cle to a
located behind his residence.
in a
trial for
shed
even
(2).
404(b)(1)
significant
took
him three
a Colt
That is a
handguns,
He
.45,
.22,
determining
and a
severance is
Ruger
Taurus 9-mm.
factor in
whether
Commonwеalth, Ky.,
Spencer v.
required.
in the
about
Appellant hid
shed from
(1977);
Rearick v.
living room of his home. He testified that
II. CONFESSION: VOLUNTARINESS.
he
commit
(though
intended to
suicide
he
residence,
police
at his
When
arrived
why
never explained
he needed two fire-
of the Colt
Appellant placed
barrel
.45
himself).
arms
kill
was
to
Carol Price
take
intending
his head as
against
asleep
the sofa. Appellant
on
testified
not pull
trigger.
life. He did
He
own
her,
that he knelt down beside
placed
arrest,
placed
then
under
handcuffed
was
it;
Ruger
temple,
.22
and cocked
Horse Cave Police
by an officer
whereupon
suddenly
Carol
awoke and
the Hart
transported
and
Department,
arm,
grabbed
weapon
which caused the
inter-
where he was
County Sheriffs office
accidentally
to fire
discharge
and
a bullet
by Detective Fitts and Detective
rogated
temple.
into her left
then en-
Appellant
Kentucky
of the
Police.
Scruggs
Jeff
State
adjacent
tered the
bedroom where L.B.
Mi-
rights,
read his Miranda
being
After
L.B.,
sleeping. Appellant
awakened
Arizona,
436,
86 S.Ct.
randa
U.S.
told
had tied
up
her that he
her mother
(1966),
ad-
Appellant
16 L.Ed.2d
room,
kill her
living
and that he would
(but omitted
that he shot his wife
mitted
(Carol)
him.
if L.B. did not have
sex
accident). He also admit-
by
claim it was
floor,
He
L.B. to the
removed her
forced
sexually
L.B.
that he
assaulted
and
ted
his,
clothing
physically
then
assaulted
abusing her for
sexually
he had been
that
sexually
abused her. He claims that
inter-
years,
having
but denied
sexual
five
up”
“woke
L.B. to
then
allowed
invoked his
with her. He then
course
go
nearby
leave the house and
to a
resi-
counsel,
interroga-
whereupon
dence
poliсe.
to call the
was re-
The
interview
tion ceased.
entire
first
theory
tape.
an audio
five
the case was
corded on
only of the
tape
conse-
of the
consists
depressed
he was so
over the
minutes
L.B.
of the
to remove
quences
prior
of his
sexual abuse of
futile efforts
detectives
from Appellant’s
handcuffs
wrists
by
indication of coercion
the detectives or
Appellant’s occasional utterance of expres-
complaints
pain by Appellant, the trial
pain
sions of
they
doing
as
so.
finding
court’s
that the cоnfession was vol
untarily
by
given
supported
substantial
asserts
his confession
thus,
and,
evidence
is conclusive. RCr 9
should have been suppressed because the
.78;
Springer
Ky.,
“totality of [the] circumstances” indicates
(1999).
439, 446
that it
involuntary.
v.Mills Common
wealth,
Ky., 996 S.W.2d
—
denied,
U.S. -,
cert.
120 S.Ct.
III. CONFESSION:
INVOCATION
891 him- lent, Arizona, capacity express to at n. Lacks the supra, Miranda v. 468 understood, either 37, 37, Doyle to be at n. v.. self so as 86 S.Ct. 1624-25 610, 2240, Ohio, interpreter; through an directly 426 U.S. 96 S.Ct. or (1976), Romans v. Common or L.Ed.2d 91 130, wealth, supra, at the same conclusion to understand capacity Lacks the is with to a defen required respect not a tell obligation of witness to to right dant’s invocation counsel. truth. Blankenship Ky.
E.g.,
164,
App.,
740 S.W.2d
incompe-
that
Appellant claims
L.B.
prejudice
informing jury
from
a
of a defen
him
incon-
against
to
because
tent
remain
to,
assertion
si
dant’s
testimony
respect
sistencies
her
implication
lent
from the
that
arises
times
assaulted
e.g., the number of
she was
police
defendant refused to talk to
penetration oc-
by Appellant, whether
guilt,
his own
because of a consciousness of
curred,
the time frame which
ie.,
person
profess
an innocent
would
innо
occurred, proved
she
sexual assaults
However,
person
even an innocent
cence.
accurately
recollect
was unable
likely
attorney
is
to want
consult an
However,
KRE
Commentary
facts.
crime
not
accused of a
which he did
com
explains:
susceptible
mit.
the issue
is more
This
serves to establish
provision
analysis
harmless error
than is
comment
minimum
compe-
of testimonial
standard
9.24;
Bentley
on
e.g.,
silence. RCr
It
tency
designed
for witnesses.
(2d Cir.1994),
Scully, 41 F.3d
cert.
judge
empower the trial
to exclude
denied,
516 U.S.
116 S.Ct.
mental-
a witness who is so
testimony of
(1996);
L.Ed.2d 107
v. Mat
United States
immature
ly incapacitated
mentally
or so
(2d Cir.1994).
thews,
20 F.3d
551-52
probative
no
worth
testimony
Here, Appellant never refused to
It
from
expected
could be
the witness.
police.
talk to the
The detectives discon
applied grudgingly,
should be
interrogation,
tinued the
and the
“incapable”
and nev-
against the
witness
they
required
informed that
to do
witness, since
er
the “incredible”
so
his right
because
had invoked
adept
particularly
fact are
triers of
counsel,
444-45,
Miranda,
per
supra,
*7
credibility.
judging
at
473-74,
at
86 S.Ct.
1627-28. But
KRE
Rules
Commentary to
Evidence
by
time
importantly,
most
the
(1989).
Committee,
Study
Final Draft
counsel,
right
he
invoked his
had al
his
ready admitted
he had shot
wife
recognizes
presump
KRE 601
sexually
and
stepdaughter.
assaulted his
permits disqualifi
of
and
competency
tion
Thus, any
guilt
might
inference
which
only
upon proof
cation
a witness
his right
have arisen from his invocation of
years
incompetency. L.B.
thirteen
beyond
was harmless
reason
counsel
at
trial.
when
testified
old
she
able doubt.
on the
trial
interviewed her
judge
The
in
before
days
court three
open
record
OF
IY. COMPETENCY
WITNESS.
finding
written
trial and entered a
order
601(b)
KRE
states:
testify. Her
competent
that she
person
A
is
qualifications.
Minimal
dis-
unemo
testimony at trial was lucid and
qualified to
as a witness
the
all
she could not recollect
Though
tional.
that he:
trial court determines
surrounding her
specific
of the
details
ac-
capacity
perceive
Lacked the
the
by
abuse
affected
Appellant,
the
which he
curately
matters about
testimony,
her com
credibility
her
not
to testify;
proposes
v. Com
testify.
Hendricks
petency
Cf.
facts; monwealth, Ky.,
Y. EXCLUSION OF DEFENDANT dant remain the courtroom protects the
FROM COURTROOM. right present defendant’s to be every “аt critical stage of the trial.” RCr 8.28. This During L.B.’s testimony, Appellant was right protected 8.28, only by RCr excluded the from courtroom required Fifth, by but also the Sixth and Four to view the proceedings on a monitor an teenth Amendments of the United States anteroom, where he could not be in con- Constitution and Section of the Consti stant audio contact with his attorney. He Allen, Kentucky. tution of Illinois v. given a legal pad pen and a with which 337, 338, 1057, 1058, U.S. 90 S.Ct. notes, to make and was advised that if he (1970) (“[o]ne L.Ed.2d 353 of the most wished directly to consult with his attorney rights guaranteed basic by the Confronta notify should the bailiff whо would noti- tion Clause is the right accused’s to be fy judge stop who would the trial and present in the courtroom at every stage of permit Appellant’s attorney to leave the trial”); Snyder Massachusetts, his courtroom in order to consult with him in 97, 107-08, 330, 333, U.S. 54 S.Ct. 78 L.Ed. the anteroom. This procedure was pur- (1934), grounds, overruled on other portedly employed pursuant to KRS Malloy Hogan, 378 U.S. 84 S.Ct. 421.350(2), provides: which 1489, 12 (“the L.Ed.2d 653 presence may, The court on the motion of the of a defendant is a condition of process due attorney any party upon a find- to the extent that a fair just heаring need, ing compelling order that the absence”); would be by thwarted Car testimony of the child be taken in a ver v. Ky., 256 S.W.2d room other than the courtroom and be (1953) (“[t]his 375, 377 long court has rec by televised equipment closed circuit ognized the importance of the constitution the courtroom to be by viewed the court right al of the accused to be present with and the finder of fact in proceeding. trial”). stages counsel at all of a Only attorneys for the defendant The rights bill of declares “That in all state, and for persons necessary to prosecutiоns criminal the accused hath operate equipment, any person right be heard himself and presence whose the court finds would counsel.” ... right necessarily em- contribute to the welfare and well-being right present braces the to be himself of the may present child be in the room ... every step progress of the with the child during testimony. trial, deprive and to him of this is a Only attorneys may question the violation of that provision of the funda- persons child. The operating equip- just mental law quoted. ment shall be adjacent confined to an presence of the accused is not a room or behind a screen or mirror that mere form. It very is of the essence of permits them to see and hear the child *8 a only criminal trial not that during the accused testimony, his but per- does not brought shall be face to mit face with the the child to see or hear them. The him, against witnesses but also with his permit court shall the defendant to ob- triers. He has a right present to be not serve and hear the testimony of the only that he may in see that is person, nothing child but shall ensure that the done or omitted which tends to prej- child his cannot hеar or the see defendant. udice, added.) but to have the benefit of whatev- (Emphasis er presence influence his in may exert emphasized language was his favor. by added the 1996 Assembly, ap General Commonwealth, (14 Temple v. Ky. 77 parently response to case law discussed Bush) 769, 770-71 Ky.Acts § 1996 ch. 178 1. The stat infra. utory provision Willis, that the testify child from In Commonwealth v. Ky., 716 outside the (1986), courtroom and that the defen- 224 S.W.2d we held that KRS
893 421.350(2) (3) one-way the determine whether use of ] did not violate a [then procedure is nec- confront closed circuit television right defendant’s constitutional Const, him, essary par- welfare of the protect the the witnesses U.S. VI, 11, witness seeks to testi- ticular child who Ky. provided § Const. amend. trial must find fy.... The court also prove that that: the Commonwealth be that witness would trauma- the child of procedure reasonably the use is tized, generally, by not the courtroom necessary to of testimony obtain the the of the (in by presence the defen- Willis, but testify child the child refused ... Denial of face-to-face confron- dant. defendant); presence in the of the further tation is not needed to the state provide the Commonwealth the technical child protecting the witness interest (a) testimony the will whereby details be presence unless the of from trauma it is taken with the child from the screened that the trauma. the defendant causes while, sight hearing of the defendant words, In other the state interest (b) time, same at the the defendant can merely protecting the interest child the child view hear and maintain trauma gener- witnesses from courtroom continuous audio contact with defense ally, of confrontation (Leib- denial face-to-face 231, 227, Id. counsel. at and аt 232 unnecessary would be because the child son, J., concurring). concurring opin- testify could in- permitted be less (three justices) noted use ion that the of albeit timidating surroundings, with the statutory the procedure was conditioned Finally, trial present. defendant the inter alia upon “technology [being] avail- court find that the emotional dis- must impairment able and utilized so that any of tress the child in the suffered witness rights the the accused to confront the presence the is more than defendant witness technical and insubstantial.” Id. minimis, i.e., de than “mere ner- more (Leibson, J., 232 concurring). Appellant at or some vousness or excitement reluc- also claims that the denial of continuous testify.” tance to audio contact with his violated counsel Sixth Amendment effective assis- 855-56, Maryland Craig, at 110 supra, v. tance of counsel. (citations omitted). at S.Ct. 3169 Maryland
In Craig, George Ky., In U.S. (1994), 111 L.Ed.2d S.Ct. the issue whether Supreme United applied States Court considered the statute a child witness who Maryland a held whether statute with similar was not a child victim. We that at provisions violated version of the statute in effect that time Confrontation not,5 did, noted if it Clause the Sixth Amendment. Howev- did but that even er, a compel- that statute a had shown specific contained re- Commonwealth quirement ling justify proce- remain in utilization of defendant need to only electronic communication evidence on this issue was counsel dure. The during proceeding. testimony Id. at 110 the social worker that the Ann., 3161; presence could in the Md.Code Cts. & Jud. child witness S.Ct. 9-102(b)(3). defendant, father, § her but that she Proc. the Court was the issue traumatized than the aver- required upon focus of would be more necessity impair- age by doing sufficient to so. justify child rights. ment of defеndant’s confrontation It is the trial court failed apparent *9 a necessity “compelling The to use the standard of requisite finding of necessary to use tes- ease-specific must of be a one: need” which TV course obtaining to timony The trial must hear evidence and as alternative court § Ky.Actsch. 178 1. subsequently amended to sexual abuse. 1996 5. The statute was application extend its to all child witnesses of truthful testimony from the the charge attempted rape. child. of gave She Kentucky provide statute does not a no testimony to pertaining thе murder testimony blanket process taking for charge than that other she saw her every of by child witness TV simply body mother’s on the sofa as she was testifying may because be stressful. running house. out of the She did not claim that or Appellant she saw heard Id. at 941. kill her or that Appellant mother told Three respect errors occurred with to her that he had done so. the er- 421.350(2) the application of KRS in this roneous exclusion from the case: courtroom L.B.’s during testimony does (1) Appellant was excluded from require of Appellant’s reversal mur- the courtroom whеreas the pro statute conviction, der but of his conviction vides that the defendant will remain in the attempted first-degree rape. testify courtroom and the child witness will Accordingly, judgment of the Hart from another room. We would not have Circuit Court is affirmed with alone, respect reversed this on this case issue since Appellant’s defendant, conviction and sentence though technically absent murder, trial, respect but reversed with during stage a critical was able conviction and for attempted to view the courtroom sentence proceedings by vid Nevertheless, first-degree and this rape; eo monitor. ease is remand- the statute cre ed to exception ates a narrow the Hart Court for a a constitutional Circuit new thus, right, trial on provisions charge. its should be the latter scrupu lously followed. JOHNSTONE, was not continuous au- KELLER and STUMBO, JJ„
dio contact with his defense counsel. No concur. argument is made technology GRAVES, J., by separate dissents accomplish If purpose this is unavailable. LAMBERT, C.J., opinion, with made, argument response WINTERSHEIMER, J., joining that statutory would have to be that the proce- dissent. dure is until unavаilable unless technology (Apparently, is available. it is Justice, GRAVES, dissenting. Maryland. available in Maryland 3161.) Craig, supra, at 110 S.Ct. at Respectfully, I dissent. finding No hearing held nor procedure KRS 421.350 authorizes a made with respect to whether there awas of a testimony allow the child witness to be compelling employ procedure need to taken in a room other than the courtroom particular this case. The record does by and be televised closed circuit equip- not contain a motion the Common- ment in the This procedure courtroom.
wealth permit L.B. to outside the Willis, approved Commonwealth presence Appellant. procedure de- Ky., 716 In Danner v. 421.350(2) may scribed not be uti- KRS Ky., 963 S.W.2d specific lized absent and a proof finding of in deciding we held that whether to therefor. compelling need of illegal allow a child victim sexual activity
Noncompliance to testify through these re closed circuit television video, quirements in case requires taped the con or “the trial court must have clusion that testimony age L.B.’s violated wide discretion to consider the witness, right constitutional of сon demeanor of the child the nature offense, likely impact frontation and to be present and the of testimo- every of his stage ny facing (quot- critical trial. Howev in court or the defendant.” er, Willis, testimony pertained only ing L.B.’s supra.) *10 Here, employed hybrid the trial court II, Movant, chambers, the trial KLAPHEKE 421.350. In William
of KRS that L.P. was twelve court stated incident, at the old time of years ASSOCIATION, BAR KENTUCKY testify permitted would that she be Respondent. in the jury Appellant with front of chambers, he could watch judge’s where 2000-SC-0896-KB. No. on the proceedings hear the monitor Kentucky. of Supreme Cоurt attorney. to his unlimited access with This method was favorable 22, 2000. Nov. actually the child had to because jury. was able to front of pad and legal give
write comments on a words, attorney to his other notes —in freely attorney. able to consult court The trial admonished Appellant’s presence lack of in the courtroom mandated statute be guilt that no inference of should made. Appellant’s multiple of crimes Because L.P. prolonged period over a time, there was a need that compelling face Appellant. Apрellant L.P. not heard had testimony all of unlimited attorney pur- consultation Appellant fully pose cross-examination. L.P. and was not denied cross-examined to- confrontation. Under the circumstances, tality of these there nowas hybrid of discretion in using abuse meth- protected Appellant’s which od constitu- rights. tional I would affirm the trial court’s judgment rape. of conviction for LAMBERT, C.J., and WINTERSHEIMER, J., join dissent. AND ORDER OPINION Movant, II, Klapheke, of Glas- William prac- admitted to the gow, Kentucky, moves April law 1973. now tice of He disciplinary proceed- termination of for the suspend- against him and for an order ings law for a practice him ing from KBA has years. period three objection the motion. no