Violett v. Commonwealth

legal bibliography also serves as a for the victed of some criminal offense. Frank effec- subject, general although tively right the conviction was waived his to contest this issue on grounds reversed on other in that appeal. case. Here, any objection Frank waived to the judgment of conviction is affirmed.

taking fingerprints during trial when he they fingerprints denied that were his found C.J., LAMBERT, STEPHENS, FUQUA, burglary. at the scene of the STUMBO, JJ., REYNOLDS and Frank also contends that the trial LEVIN, Justice, Special concur. prejudice court erred to his substantial when, right denied him the to confrontation objection, prosecutor

over defense place jury alleged

allowed to before the hear

say testimony by police officer. We dis

agree. police

A officer testified that he was

neighborhood burglary of a because report suspicious person. of a He did not Ray VIOLETT, Appellant, Donald identify suspicious person person or the report. who made the It was until cross- examination defense counsel that a link Kentucky, COMMONWEALTH of was established between Frank and this sus- Appellee. picious person. Consequently, pre- Frank is vented from prosecu- when the No. 93-SC-806-MR. tion then elicited more information because opened Supreme Kentucky. Frank had inquiry this line of Court of during made the connection cross-examina- Oct. 1995. prosecution tion of a witness. only

It was on redirect that the iden

tity presented. of the caller was A defen objection

dant’s to evidence is waived

subsequent prosecu cross-examination of a respect

tion witness in to the same matter.

Asher v.

Finally, Frank maintains that

prosecutor permitted place before the

jury testimony inferring conviction of unre activity by

lated collateral criminal the defen during

dant. In this it was learned

direct examination of a defense witness jail.

Frank had worked in a There was no previously

evidence that he had been convict However,

ed of crime. on redirect ex witness,

amination of a defense it devel

oped for the first time the defense that actually furlough jail.

Frank was from the successfully

Frank cannot now raise such an

issue on it because was the defense presented furlough

that first the fact of from jury might

which the have inferred for the previously

first time that he had been con- Newport, Appellant. Kidney, A.

James General, Gorman, Attorney David E. Chris General, Spenard, Attorney Crimi- Assistant Division, Frankfort, Appellate Appel- nal lee.

WINTERSHEIMER, judge has broad discretion Justice. joinder regard and the decision of the judgment This is from a based on a will not be overturned juiy verdict which convicted Violett of 157 absence of a demonstration a clear abuse degree counts of sexual abuse in first-degree rape. five counts of He was of discretion. See Schambon v. Common years prison. sentenced to a total of 754 in wealth, (1991); Ky., 821 S.W.2d 804 Wilson Commonwealth, Ky., 695 S.W.2d 854 questions presented The it are whether (1985). join Violett has not demonstrated was error to the two indictments in one trial, whether it was error to refuse to by judge, allow abuse of discretion the trial and he stepdaughter letters written to her identify any preju has failed to substantial boyfriend past as evidence sexual behavior joinder dice connected with the of the two conspiracy; or as evidence of a whether the indictments. particulars proper; bill of was whether there retrial, prejudice in the video and wheth- significant determining A factor in properly er the sentence was calculated. joinder unduly whether of offenses for trial is There were two indictments in this case. prejudicial is whether evidence of one of the charged committing Violett was with one separate offenses would be admissible in a week, first-degree sodomy, count of once a Spencer trial for the other offense. v. Com May from the weeks of 1982 until Janu- (1977). monwealth, Ky., 554 S.W.2d 355 In 20, 1989, ary stepdaughters. on one of his the evidence of misconduct of Viol- charged The second indictment five counts of stepdaughter ett with the would have been first-degree rape on biological one of his separate concerning in admissible trial daughters. stepdaughter The testified that daughter, and evidence of his misconduct began improperly touching her when daughter with the would have been admissi years she was improper twelve old and his separate concerning step ble in a trial period advances continued over a daughter. pattern The con behavior and and rape. biological time included The strikingly duct was similar it was suffi daughter although testified that she ciently began in improperly close time. He household, a full-time member of the she stayed touching daughter overnight visited and at when she was his residence eleven during question. in the time years She testified improperly old and he touched the years that she was eleven old when Violett stepdaughter years when she was twelve old. began improperly touching body and that situations, In touching both escalated engaged he also improper various other improper rubbing into of the victims’ advances, including rape, five times and..digital penetration. bodies Both victims prior birthday. to her twelfth ultimately raped testified that he them. During trial, jury following gaining The method of access to both chil- presentation evidence, prior all the but to very dren was similar. Each victim was a instructions, jury the defense counsel suf- member of the household at the time the fered a heart attack. A mistrial was de- misconduct occurred. The defendant would clared retrial scheduled. Prior to the bedroom, get gain each child alone in retrial, or agreed both sides that the evidence fully by approaching access to the victims developed been at the first trial and them counsel, Violett, agreed both as well they as getting ready the bathroom when were present evidence from the first trial taking or a shower. He also warned each tape jury. means of a video to the second anyone victim not to tell about the incidents. This followed conviction and sentenc- strikingly This behavior indicates that it was ing. similar conduct.

I that the offenses were too remote is without merit. The acts were argues that Davis v. Com monwealth, years (1970), separated approximately four Ky., ap 464 250 S.W.2d plies. disagree. began We in 1989 and terminated in 1992. The 776

trial judge determining was correct in the step- Violett cross-examined both supported daughter extensively. the evidence a determination and the they sufficiently were close in time. v. Violett introduced of what Mack he con- Commonwealth, Ky., (1993); alleged conspiracy by sidered an means of testimony. opportu- Anastasi v. other He had S.W.2d sufficient circumstances, nity theory. develop all Under ruling by misconduct of prevent Violett with either victim court to discus- would separate stepdaughter’s past have been admissible at a sion of the sexual behav- strikingly trial. deny unfairly conspir- The behavior was similar ior did not limit the joinder acy error, sufficiently any, close in nonprej- time. defense. if unduly prejudicial. was not udicial. RCr 9.24. not

did abuse his discretion.

III It was not error the II reversible for judge require trial to decline to the Common judge The did not abuse his complete spe wealth file a more or to more discretion or commit reversible error when particulars. cific bill of Violett claims that he refused to allow to the defendant offer the particulars bill of submitted for each case by stepdaughter letters the written to her agree. was insufficient. We do not He has boyfriend purpose the introducing of evi any significant failed preju to demonstrate past dence of her sexual behavior. Any possible dice. error was harmless. Violett that op- claims he was denied the particulars purpose The of a bill of is portunity present main to one of his defense provide to a defendant with information nec judge theories the refusal of the trial to essary against prepare to defense his permit into the letters The evidence. letters charges. prejudicial It serves eliminate to question theory to relate that Commonwealth, surprises trial. at Abbott v. daughter boyfriend and her concocted a (1992). Ky., 822 S.W.2d 417 An examination charge against stepfather criminal her in or- in this record case indicates that the get way. der to him out of letters prosecution supplied the defendant with all stepdaughter’s also describe activ- the details of the crime that it had available ity boyfriend. proposed with the evi- comply was sufficient to with RCr 6.22. directly dence did not relate to the offense Commonwealth, Ky., Deskins v. charged. Violett’s was that (1974). Davis, Reliance Violett letters were admissible under the residual supra, misplaced is because case is 412(b)(3). exception provision of KRE We readily distinguishable. no find error in the decision of the trial 412(b) to the letters. KRE is exclude knowledge Here Violett what the sparingly carefully. used See Commen- prosecution prove attempt would to at trial. tary KRE 412. complain surprise He not unfair did particulars caused the bill of for either In is there no direct connection complete case. His defense was a denial and activity prior between the evidence of specific alibi. has not a more He shown how challenged directly testimony medical particulars complete or bill of have would respect, introduced at trial. In that it is provided theory a different of defense. Yar clearly distinguishable from Barnett Com- nell v. 833 S.W.2d 834 monwealth, (1992). Ky., 828 S.W.2d (1992). Moreover, the evidence is not similar to evi- dence be under KRE that would admissible IV 412(b)(1) (2). Violett not or denied argued per defense. He at trial that It was reversible error to there boyfriend presentation that the did not him mit a to evidence like video relationship jury. agreed because would not the second to the man he allow between the two children. ner his retrial and therefore waived complaint concerning step-daughter it. The record indi- into evidence letters from his (a witness) boyfriend cates that Violett discussed this matter with to her step-daughter’s counsel and that he made an informed to introduce of his voluntary activity. only decision. Counsel for both the If this were indeed the prosecution agreed and the defense to purpose, agree I would be the letters should procedure. video no in- There was manifest excluded.

justice palpable pursuant error to RCr However, was, purpose of introduction by employing procedure. 10.26 such a RCr part, for the most to introduce evidence of a preclude 10.26 rights does not the waiver of step-daughter between the under the state constitution. See v.West “get” Violett and “make Commonwealth, Ky., 780 S.W.2d 600 conspiracy, life hell.” As evidence of a extremely letters were relevant V step-daughter that his boy- defense and her jury convicted a total charge against friend concocted a criminal of 141 counts of sexual abuse get way. Violett to him out of the first-degree rape. and for five counts of Sev purpose Rape of the former Shield enteen of the sexual abuse counts drew a Statute, it, replaced and of KRE 412 which punishment years of five on each count. One protect complaining witness from “be- Twenty-three Hundred of the sexual abuse coming party on through the admis- punishment years counts had fixed at three sion of that is neither material nor on each count rape and the five counts had charge relevant to the made.” Barnett v. punishment sixty years fixed at on each 363 count. The sentences were to rim concur (1992). Evidence that is relevant and mate- rently for years. a total of 754 That would admitted, rial should be if even it relates to a years mean 85 for the 17 sexual abuse witness’s sexual behavior. counts, years 369 remaining for the sexual years majority abuse counts and rape opinion for the states that Violett counts. opportunity develop sufficient his con- spiracy theory by means of “other testimo- 532.110(l)(c), KRS which deals with con- ny.” recognizes To so state the relevance current and imprison- consecutive terms of materiality conspiracy theory of the ment, when read in tandem with KRS regarding the need to have evidence it intro- 532.080, Felony Sentencing, Persistent indi- majority duced at trial. The does not con- upper cates that there is no limit on the term why, front conspiracy the issue of if the years felony. sentenced for a Class A relevant, theory was the trial court limited Consequently, there upper is no limit on the by excluding highly persuasive that defense length aggregate of the consecutive regarding possible written evidence con- indeterminate terms. Violett has failed to spiracy, particularly im- when irrelevant and show that his sentence was improperly calcu- portions dealing material of the letters with lated. the witness’s sexual behavior could have been judgment of conviction is affirmed. portions redacted and the relevant entered into evidence. STEPHENS, C.J., and LAMBERT and portions regarding If the of the letters REYNOLDS, JJ., concur. complaining witness’s sexual behavior had LEIBSON, J., by separate dissents redacted, inapplica- been KRE 412 would be J., opinion FUQUA, joins in which Through ble to the rest of the letters. STUMBO, J., joins in part. method, written evidence of the relationship and strained between Violett and LEIBSON, Justice, dissenting. step-daughter boyfriend, and her with a Respectfully I dissent. greater potential impact jury, on the majority opinion imply revealing seems to could have been admitted without purpose in attempting step-daughter’s to introduce irrelevant details of the 532.080(6)(b). Thus, experiences. goal of KRE maximum sentence in could have been achieved much under 92- manner Violett could receive indictment damaging years. ease. twenty Trying less to Violett’s The trial him under CR-532 is letters, holding magically court erred that the as a does more than one indictment not whole, were Violett inadmissible. should re- increase the maximum sentence he can required to be defend himself with one hand individual ceive under each indictment. tied his back. behind Thus, guilt phase if re- is not even 412(b)(3) KRE states that “evidence direct- versed, reversed Violett’s sentence must be relating charged” is ly to the offense admissi- and the trial court directed to remanded rulé construed to ble. This should be include years twenty years enter a of 320 sentence — Thus, the motive witness. under 92-CR-532 and three hun- indictment any portions regarding if of the letters years dred under indictment 92-CR-626. relationship step-daugh- between attorney The fact that Violett’s abandoned inextricably ter and are inter- issue at oral and that there twined with the motive statements and are practical little no difference between nature, substantiating portions those are years years and 320 should sentence of 754 admissible. statutory requirements. not blind us to the

Further, imposed sentence incorrectly. FUQUA, J., calculated Under joins. indict- 92-CR-532, upon ment for crimes committed J., STUMBO, joins sentencing as to the step-daughter, guilty was found only. issue abuse, 17 counts of years per he was to five which sentenced consecutively for a

count served total years. Under that same indictment he guilty

was found of an additional 140 counts abuse for he

of which count, years per

received sentence of three consecutively, served for a total 92-CR-626, years. Under indictment CARTER, Movant, Robert P. upon daughter, crimes committed his natural guilty was found of five counts of first-degree rape, for which he received ASSOCIATION, BAR KENTUCKY sixty years per count to run sentence Respondent. consecutively for under that indict- a total years. ment of 300 All the above sentences No. 95-SC-721-KB. consecutively grand run for a total of were Kentucky. Supreme Court years. 532.110(c) provides that when multi- KRS 19, 1995. Oct. imposed on a ple sentences are defendant for crime, than one more aggregate of consecutive indetermi-

nate terms shall not exceed maximum

length term longest extended which

would be authorized KRS 532.080 highest crime for which class of imposed.

the sentences is “highest imposed of crime” un- class felony D the first indictment is a Class

der abuse). longest (first-degree sexual ex- by KRS 532.080for a

tended term authorized felony years, twenty D under KRS

Class

Case Details

Case Name: Violett v. Commonwealth

Court Name: Kentucky Supreme Court

Date Published: Oct 19, 1995

Citation: 907 S.W.2d 773

Docket Number: 93-SC-806-MR

Court Abbreviation: Ky.