Stokes v. Commonwealth

ENTERED: December 2008. Minton, John D. Jr.

/s/ Justice

Chief

Stanley STOKES, Appellant, Kentucky,

COMMONWEALTH

Appellee.

No. 2007-SC-000006-MR.

Supreme Court of Kentucky.

Dec. General, Conway,

Jack Attorney Julie Scott, General, Attorney Renae Assistant Attorney General, Office of the Criminal Division, Frankfort, KY, Appellate Counsel for Appellee.

Opinion the Court Justice NOBLE. Stanley Stokes,

Appellant, was convicted sodomy two counts of and sentenced to thirty years prison. appeal, On he by allowing claims the trial court erred definition of a medical to be read term into expert evidence outside the context of an testimony, by answering and witness’s during penalty phase delib- Finding requiring no error rever- eration. sal, Appellant’s conviction sentence are affirmed. Background

I. son, Stokes, and Appellant’s Kevin his wife, Tracey, custody minor B., child H. involved twelve- adopted year-old Tracey’s girl who was 3, 2005, Kevin took September sister. On B., sister, biological H. her older daughter Appellant at his home. to visit lawn, girls mowed While the other two Appellant’s dog H. a bath. Kevin gave B. Gibson, friend, Ronnie working were Appellant on a garage, scooter Appellant them. later followed H. the house B. into and did immedi- ately back out. then looked come Kevin they were, through a window see where H. he and he testified at trial that saw standing sitting Appellant in a chair with the door opened front of her. Kevin on, at which going asked what was Kevin jumped time back and Appellant H. pull his out of B.’s Appellant penis saw Rhorer, Holt Pub- Emily Department of that he was Appellant mouth. claimed Frankfort, KY, Advocacy, lic Counsel child, and indicated Appellant. merely hugging simply more could take nothing plied could be because he notice of judicial from erectile the definition. dysfunction. suffered When seen, H. B. confirmed Kevin had expert The trial court ruled Appellant, beat until nod- Kevin judicial it took required if claimed, that he had acted as child ded treatise, a learned dictionary was dragged Appellant. and Gibson off Kevin again prop- made to which defense counsel mistrial, for a objection er and moved B. Appellant H. claimed that had made The trial court then which was overruled. perform or four her sex acts three times recognizing it informed the that was time previously, and that the first he had book,” “this remained unidenti- which still slapped her and threatened force her if fied, treatise, as a learned and that what she did not do as he demanded. She going to read was Commonwealth was knife that a Appellant claimed held to her considered during reliable and could be and told her if she told anyone, throat that deliberations. The then Commonwealth he kill her her fami- jeopardize “produced as psychogenic defined or Further, ly. Appellant she that testified by psychological caused factors.” have an erection July did inci- In closing, argued the Commonwealth dent. Appellant’s dysfunction that “related to a Consequently, Appellant charged was psychological type problem, in his first-degree one count of sodomy with head,” nothing as there physically was count of second-degree sodomy. one At wrong Appellant, including his testos- trial, Kevin, B.H. and Gibson testified to terone levels. pointed The Commonwealth the above events. Appellant testified out that the medical records indicated that behalf, his own and raised as his defense February Appellant as of had had he get that could not an erection due to and, intercourse three four times “Gets placed impotence, into evidence his he is able good erections to have when concerning medical records this health intercourse.” then prosecutor argued problem, which indicated that he had been Appellant that dysfunctional was “because seeing a urologist for condition this off and sexually adult women do not arouse on since Those records indicated him.... He girls.” is aroused little physical Appellant’s dys- that cause for objected The defense that there was noth- found, function could be and that the doc- ing in support the medical records to this thought tor the problem was probably argument, any nor been had there testimo- “psychogenic.” The records also indicated ny Nonetheless, to that effect. the trial that, occasion, on Appellant was able to ruled, objection, court over the defense’s sexually. however, function Appellant, rational, “a statement reason- claimed that could not he achieve complaint, inference.” able On further an at all. erection trial then told the could “draw any from reasonable inference the evi- rebuttal, During the Commonwealth that’s presented.... dence been That’s for asked to be allowed to the definition read decide, you your- the decision you make “psychogenic” from an unnamed medical self.” dictionary as a pursuant learned treatise 808(18). KRE counsel of both charges, Defense was convicted rule, under the the jury a learned treatise recommended the maximum expert imposed be introduced an on each. trial court through

must wit- sentence In response, years first-degree ness. re- sentence of on twenty a second-degree years over for erec- years ten on treatment a number

sodomy and consecutively for he his dysfunction, by ran tile which bolstered sodomy, and them lying, that H. defense he was thirty years. appeal This followed total of erection, incapable of an and that he had right. as a matter records, hug. giving been her Analysis II. however, that he also indicated had been occasionally able to have intercourse with Learned A. Treatise erection, problem an and that Judicial Notice psychogenic. What probably Com- Appellant argues do, though wanted to monwealth “judi by taking its court abused recognition its as of a request couched dictionary cial notice” of medical treatise, ask the court to take learned treatise.” there is much “learned While notice judicial “psycho- of the definition here, terms confusion of to genic” and read the definition to the no error it allowed the committed when adjudicative to jury as an fact establish to read a definition of dysfunction Appellant’s psycho- into the record. “psychogenic” logical physical. rather than 803(18), KRE as known Under may judicial A trial court take rule, from such learned treatise statements notice of the of a word as an definition by not the hear a document are excluded adjudicative fact the defhxition of a where rules, though is not say even the declarant is, indisputable, term is where witness, these state as when available ready “capable accurate and determina expert an used questioning ments are accuracy by resort to sources whose cross, witness, on or if the either direct reasonably questioned.” be KRE cannot are established as reliable statements 201(b)(2). Essentially, ju KRE 201 allows witness, by other ex authority either to “facts notice be taken of dicial ‘which testimony, notice. pert by judicial unimpeachable can be determined from goes judicial only notice used in this rule ” Lawson, Ken sources.’ Robert G. reliable au the document is a to whether tucky Evidence Law Handbook read not that the are thority, statements ed.2003) (4th 1.00[3][c], § at 1 (quoting 10 weight always, facts. As adjudicative & Laird C. Kirk Christopher Mueller authority must be determined (2d § Federal Evidence 51 patrick, the trier of fact. ed.1994)). not- As Professor Lawson has 201, however, KRE Judicial notice under ed, general such sources include authori- adjudicative facts. KRE only concerns calendars, “encyclopedias, such as ties 201(a). noticed judicially If a fact is under treatises, al- maps, medical and historical rule, instructed to must be manacs, public Beyond Id. records.” fact conclusive. KRE accept such as doubt, dictionaries fall within the same noticed, properly judicially To 201(g). be sources,” “unimpeachable and thus class of subject not be to reasonable the fact must may in them be the definitions contained generally known or dispute, because noticed, long they are indis- judicially so resort to sources be determined can v. Lexington See Bank putable. Comerica accuracy reasonably cannot whose (6th Cir.1993) Co., 939, Ins. F.3d 201(b). KRE questioned. its court was within (holding district notice of the judicial take Here, allowed intro- Appellant was word); dictionary of a regarding his definition B.V.D. records duce his medical Licensing Corp. Body Action Design, thority reflects that our courts generally Inc., (Fed.Cir.1988) 846 F.2d regard dictionaries as ‘sources ac- whose (“Courts may judicial take notice of ... curacy reasonably questioned.’ cannot dictionaries.”); H. Richard & 201(a). Underwood conclude, See Evid. R. We Wissenberger, Glen Kentucky Evidence therefore, judicial that a court take 2005-2006 Courtroom Manual 44 dictionary notice of a definition of a (“Judicial notice is English taken of the word, long so as the other conditions set language.... Representative authoritative out in R. 201 are Evid. met. sources for verification [of include facts] Id. at 501. works, such materials as historical science suggestion No has been made that the books, and art language and jour- medical definition read to the in this case was dictionaries, calendars, nals and ency- accurate, and the did not ” clopedias added)); .... (emphasis see object definition, content of the Parker, 180, 132-38, also v.Werk 249 U.S. dictionary the medical being treated as (1919) (“We 39 S.Ct. 63 L.Ed. 514 a learned treatise. The trial court intend- clear, deem it beyond question ... ed to take judicial notice of the meaning justified taking judicial the term “psychogenic,” and found a medi- appeared facts that abundantly so from dictionary cal an indisputable source standard every works accessible in consid- of the accuracy definition. Since the of the library.”); erable Samuel A. Thumma and readily ascertainable, definition was the Jeffrey Kirchmeier, L. The Lexicon Has trial court did not abuse its discretion in

Become a Foiiress: The United States allowing it to be read to the jury. Wheth- Supreme Dictionaries, Court’s Use of er it appropriate was for this evidence to 227, Buff. L.Rev. (noting that introduced rebuttal is perhaps “by 1920, [Supreme] the Court had decided matter, another but this has not been judicial that taking dictionary notice of appeal, raised on and does not rise to the definitions unquestionably proper”). was of palpable level error. Indisputability of a definition can be but- by Appellant tressed also takes issue with the cross-referencing the definition with other use the Commonwealth made of this defi- dictionaries or authorities. Specifically, judicial nition in closing argument. be taken of Since it was the appropriate definitions of medical for the trial court judi- terms from a to take dictionary, Shelton, medical cial Campbell v. notice of the definition of “psychogen- ic,” 727 N.E.2d it (Ind.Ct.App.2000), appropriate follows that it was those definitions are admissible into evi- Commonwealth to comment on that trial, dence in a jury of assuming closing course definition in argument, provided its requirements other judicial inferences were reasonable. It is true that notice rule are met: specific there was before the jury that Appellant stated could not be are mindful

We that there is a distinc- women, aroused adult only but little referring dictionary between to a girls. However, Appellant testified factfinding setting for the that he purpose of get could not an judicially noticing erection for intercourse meaning of a word, hand, on one H. B. consulting such while testified that he in a source upon appellate fact did an erection during review to dis- have at least this, cern the meaning purposes July episode. of a term for From it could be of, for example, statutory construc- inferred that due to the psychological na- Nevertheless, tion. ... preceding au- ture of dysfunction, he could the elements an erection a child. While could read of achieve second-degree abuse. defense Commonwealth did state factual sexual definitively, couching attorney than that this was new evi- claim rather it language presented during it did so in that had not possibility, of dence been argument. penalty phase context of There evi- Commonwealth’s support as a that all the could do at dence the assertion reason- trial court that inference, tell speculation. point and not mere was decline to answer and able argument improper, to follow the The Com- thus not instructions. certainly prose- actually agreed did rise to the level of monwealth that trial that cutorial misconduct. There no error. court should not tell the of that a child. victim offense was Penalty Phase Deliberations Nonetheless, stated Appellant complains also dur prosecutor since the could have told the deliberations, penalty phase ing child, jury the victim awas gave additional factual and should tell them. was whether now legal information not enti to which was Concluding that since the matter involved tled. truth in he determined to tell sentencing, offense involved truth penalty In the under phase, subjecting person years less than 14 of sentencing, informed contact, that he age to sexual previously “any touching define sexual contact as second-degree been convicted of sexual parts intimate record, the sexual other On the but outside abuse. purpose gratifying done for person hearing of the jury, the Commonwealth party.” desire either Over the sexual that it the certi- indicated would not send so, he did continuing objection, defense copy prior of the back fied conviction minutes, fixed jury and five had within jury previously because maximum on both counts before charged degree of sentences higher been under a them, they and run In recommended closing, offense. the Commonwealth thirty years. offense, consecutively for a total of specifically stating referenced this it “first time” Appellant’s that was All under Rob- properly that is allowed jury Appel- directed to consider what of the crime. general description inson is a in past recommending lant had done in case, the In that trial court allowed the The jury a sentence. then retired to delib- prior testify to at of the crime victim erate. to the of the assault length specifics as deliberations, against A minutes into the her. Defense counsel few being in sent out this to that this resulted in the defendant question: “We want offense, and again if the on a tried this prev. know child?” effect for conv. argued agreed. clarify, To this Court held Commonwealth first Court that is for truth sen- necessary could do this because the arrest that all judge general description “a prior tencing in the case stated is warrant illustrate what first-degree sexual crime.” Id. at To Appellant committed years appropriate 12 in the Robinson against abuse minor less than of would be case, stated, “In this it objected, the Court age. When defense counsel issue, judg- introduce the and deter- be sufficient to trial court researched the that defendant as- pursuant testimony v. Com- ment with mined to Robinson monwealth, he had been (Ky.1996), he saulted woman with whom S.W.2d evidence, ease, living.” Id. In a later v. possible Hudson introduce corrective Commonwealth, argue no to the (Ky.1998), given opportunity 979 S.W.2d 106 cir- specified this Court that the factual jury regarding the additional evidence. closed, cumstances in the warrants or uniform and had jury. citations be read telling could not concerns about the court is thus permissible What lies prior somewhere case. age of victim stated in between rules these two Generally, reopen courts are reluctant to cases. closed, proof after a case has been but trial Here, gave than more to do courts do have the discretion so. general description of the offense 9.42(e) (giving court to al RCr Robinson, as such would be allowed under low evidenee-in-chief after side has including that the crime had been commit- v. proof); Common closed its Marshall against person age ted under the of wealth, (Ky.1981). 625 S.W.2d fourteen, by defining but then went farther an injustice is generally test whether sexual contact meant. This is consid- if likely is to result evidence is not new erably more than the limit set Robin- 9.42(e) (al put jury. before the See RCr son, in that the definition falls into good “for lowing proof only such new rea language typically used in warrants son in of justice”). furtherance indictments, gives more than specifics However, very authority there is little necessary know to ascer- proof about after the ease has reopening Possibly, tain the nature of the offense. been submitted to the has ways here, the sword cuts both because begun case its deliberations. One which term “sexual contact” con- could be squarely, does the issue but that has frame Thus, it actually strued worse than is. one, Henry from facts different this defining terms in other offenses creates States, (6th 817, 821 United 204 F.2d Cir. very kinds of collateral issues 1953). Henry, In after the dead Despite Court disfavored Robinson. locked, requested the court allow it to this, the definition the trial court read testimony rehear the of some wit simply a statement of the statutory defini- objection, nesses. Over defense the term sexual contact as the word allowed the witnesses to two would be defined if in a instruc- In played jury. particular, be back for the Thus, case, tion. in this it is though even replaying the defense to the testi practice better not to be too the specific in so mony annoyed of one witness that had occurred, “general any statement” what judge the that the with evasive answers error is harmless. questioning over the and casti judge took problem greater gated reversing, here to In the Sixth is how the witness. the pointed replaying treat introduction additional evi Circuit out that testimo ny the a judge projected negative dence after the case has been submitted where jury begun credibility and the has No deliberations. view of the witness’s overem made; in the timely reopen phasized point motion to that to stead, decision, judge the introduced In reaching new evidence unfairness. its how ever, response question jury Kentucky in to a from the the Sixth Circuit reviewed reopening to whether the offense in to and communi regard victim law jury a child. Those facts cation the and concluded: were weight by iron-bound, trial being copper-fastened, delivered the “There is opportunity against had no to rule the admission court. double-riveted 192 (allowing reexamination of a witness after parties both have rested

of evidence after deliberations). the jm'y jury began their and even the upon proof after it deliberations. Con- upon has entered 249 of the Some cases under Section old in is vested in siderable latitude Practice,1 predeces- Code of Criminal at respect.” in this Id. 820 judge the trial appear superficially sor to 9.74 to RCr added). The Circuit did (emphasis Sixth against understanding. counsel For recognize general practice, as a that Commonwealth, example, in Houston or the must parties must consent evidence (1937), 125, Ky. 270 109 S.W.2d 45 to matter relate some non-controversial deliberations, jury asked the court complete the record before essential to effect a conviction have under jurors introduced after evidence be the Habitual Act on the defen- Criminal begun deliberations. Id. at 820-21. have obtaining pardon. judge dant a told “No informa- specifically says, RCr 9.74 them the would not affect ob- conviction juror requested by jury any Court, pardon. a in taining reversing, retired deliberation jury after the has for point held that this was a on in given except open shall case, not in the and indicated law involved (unless the of the defendant de- presence only judge should said that have absentia) is tried and the being fendant required give he was to law of presence of or jury, after entire so, that he done par- to for the reasonable notice counsel to tell them. that was all he was allowed added.) ties,” Had the sen- (Emphasis model, Taking this as a this has become “given” the word tence ended after standard trial courts make to approach clearly proscribe giving addi- rule would jury questions. most But Houston was after deliberations proof tional to premised giving on evidence or of the “ex- begun. With addition have not legal instruction to which it enti- reasonable infer- cept” language, tled, finding not trial court’s re- on given, pro- proof such can be ence per sponding jury’s question to be Though it are met. qualifiers vided The case not mean improper. se does rare, of in such is not unheard procedure circumstances, may not under certain Kentucky See v. Common- law. Elkins to introduce after proper new evidence (1932) wealth, 199, 53 Ky. S.W.2d begun. deliberations have (holding court abused discretion should be rare Certainly, those instances impeachment allowing call defendant very carefully out. As thought deliberations); began after witness Henry, out in “After pointed Sixth Circuit Commonwealth, Ky. Easterling v. inability agree reported its has (“While trial courts 257 S.W. verdict, is, in incum- upon opinion, our reopen ease after power have upon judge to exercise ex- bent verdict, pur- submission and before for the evidence, reopening treme care in the case the receiving of further pose per- or in testimony introduction of further to their is addresses itself matter one that or re- ”); mitting any be restated evidence discretion.... Burk Common- sound (5 J.J.Marsh) wealth, restraint jurors. read to the Unless is Ky. time, Upon court. "After officer to conduct them into At the Section 249 read: court, deliberation, being brought into the informa- jury if there be a their for retires given presence any required in the disagreement part must be between them as to to, of, evidence, par- of the they or the counsel if desire to be informed after law, they require ties.” point must on a presented be that could this by judge, may exercised have well jury had it chosen to emphasis to be same evidence to the permit he would undue (and be during if do its case-in-chief would upon portions testimony, of the so placed the sen- by jury.” present able to it at retrial were portions such called were Court), by deciding this applies at 821. This caution tence reversed 204 F.2d even presenta- in must be the mere disagreement more is not factor whether when by judge in the but is tion of this is suffi- over the record evidence fundamentally unfair trial cient to create looking for additional evidence. emphasis on the evi- by placing undue judge’s In this answer to that it dence. This does not believe Court apply point did to facts and does, and thus finds no error. of law that is relevant to the case. purpose sentencing of truth in is to allow III. Conclusion jurors to a criminal defendant’s consider reasons, foregoing judgment For the history assessing in his likelihood of re- af- of the McCracken Circuit Court is offending appropriate level of what firmed. punishment for the current It offense is. certainly is relevant to this determination ABRAMSON, sitting. All All concur. previously committed a J., by separate opinion. also concurs against sexual offense a minor. itWhile CUNNINGHAM, J., concurs because inappropriate be to introduce evi- information prove dence of character to propensity definition of an offense uncontroverted guilt phase trial, of the character and introduced, already “proof,” not new propensity sentencing. are at the heart of not error —harmless or was therefore arguable It be that there was no otherwise. necessity to give this additional Concurring Opinion by Justice deliberations;

evidence on the oth- ABRAMSON. hand, er it may arguable injustice if would occur did do so. I concur because I cannot fault the ma- That determination is within sound jority’s analysis by issue raised court, discretion of the trial and this Court judge’s provision of information to the say cannot that there anwas abuse of that they after had retired for delibera- discretion. However, I am penalty phase. tions compelled emphatically to state even more remaining question then is whether not, judge that the trial and should not giving unduly the additional information viewed, counsel, safety as a net for emphasized portion testimo- standing ready supply they have ny primary Henry. concern in Un- —the inadvertently omitted. Information con- doubtedly, given weight the evidence was veyed by judge typically a trial is accorded court; being Ap- delivered the trial heightened respect by jurors po- and the pellant opportunity had no to introduce great. Only emphasis tential for undue challenge or to corrective evidence evi- practice, this rarest instances will jury; Appellant giv- dence before the view, my pass muster. opportunity en no to argue to the evidence; about and the Common- judge

wealth had concerns about the tell-

ing age of the child in the However, offense.

Case Details

Case Name: Stokes v. Commonwealth

Court Name: Kentucky Supreme Court

Date Published: Dec 18, 2008

Citation: 275 S.W.3d 185

Docket Number: 2007-SC-000006-MR

Court Abbreviation: Ky.