Tackett v. Commonwealth

• Decision Date: 23 October 2014
• Docket Number: No. 2013–SC–000208–MR.,2013–SC–000208–MR.
• Citation: 445 S.W.3d 20
• Parties: General TACKETT, Jr., Appellant v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

445 S.W.3d 20

General TACKETT, Jr., Appellant

v.COMMONWEALTH of Kentucky, Appellee.

No. 2013–SC–000208–MR.

Supreme Court of Kentucky.

Oct. 23, 2014.

Molly Mattingly, Department of Public Advocacy, for appellant.

Jack Conway, Attorney General, James Hays Lawson, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY JUSTICE KELLER

KELLER, Judge.

The Carter Circuit Court convicted General Jackson Tackett, III (Tackett) of two counts of first degree sexual abuse and three counts of first degree sodomy of two victims, Sarah and Nicholas.¹ The court sentenced Tackett to thirty (30) years' imprisonment. He appeals his sentence as a matter of right under Ky. Const. § 110 (2)(b). Tackett raises eight issues on appeal. He argues that: (1) he was unduly prejudiced by the irrelevant and bolstering testimony of Dr. Drema Hunt and Dr. Gail Fineburg; (2) he was unduly prejudiced by introduction of Kentucky Rule of Evidence (KRE) 404(b) evidence; (3) he was unduly prejudiced by Sarah's victim impact testimony and by the bolstering testimony of Sarah and Nicholas; (4) he was unduly prejudiced by the bolstering testimony from other witnesses; (5) he was unduly prejudiced by the admission of a picture Nicholas drew in elementary school; (6) the trial court violated his right to a fair trial by failing to excuse a juror; (7) he was denied a right to a speedy trial; and (8) he was denied a fair trial because of the cumulative impact of all of these alleged errors. The Commonwealth responds that Dr. Hunt's and Dr. Fineburg's testimony does not amount to palpable error, and that there was no improper KRE 404(b) evidence; furthermore, the Commonwealth argues that the six remaining issues should be brought under an ineffective assistance of counsel claim pursuant to RCr 11.42. Although this Court would like to see briefs from the Commonwealth which actually address all the issues raised on appeal, we still find no merit in Tackett's other arguments. Consequently, having reviewed the record and the parties' arguments, we affirm.

I. FACTS.

In June 2011, Tackett returned to the United States from his then home in Guatemala. Upon his arrival, he was arrested and charged with seven counts of sex crimes against two alleged victims, his son, Nicholas, and Sarah, a female friend of Tackett's children. At the time of trial, Nicholas was 20 years old and Sarah was 18 years old. The events giving rise to the charges occurred approximately ten years prior to trial. The Commonwealth accused Tackett of one count each of first degree sexual abuse, first degree rape and first degree sodomy as to Sarah; and one count of first degree sexual abuse and three counts of first degree sodomy as to Nicholas.

Sarah, the Commonwealth's first witness, testified that her grandmother, who lived on the same street as Tackett, took care of her after school when she was approximately seven (7) years old. As a result, Sarah became friends with Tackett's children, especially Tackett's daughter, Abigail. Sarah testified that she began visiting the Tackett children at their home, but the visits stopped when Sarah moved to Paintsville, Kentucky, when she was approximately nine (9) years old.

Sarah testified about four sexual encounters involving Tackett. The first occurred when she spent the night at Tackett's house with Abigail. Abigail had told Sarah that they were not to leave Abigail's room during the night, but Sarah, who was thirsty, went to the kitchen to get a drink of water. Tackett walked into the kitchen and told Sarah that he would have to punish her for leaving Abigail's room. Sarah testified that Tackett then raped her. Sarah stated it felt like she was being ripped apart but she could not remember any other details about this encounter. A second encounter also took place in the kitchen, when Tackett put his penis in Sarah's mouth. A third encounter took place in “a room with dolls and pink” when Tackett touched her between the legs with his hand. The final encounter Sarah testified about took place in the basement, where Tackett forced Nicholas to sodomize her by putting his penis in her mouth and to rape her.

Sarah testified that she did not tell anyone about these incidents until a few summers before the trial, when she told her mother. At some point, the police became involved and Sarah was ultimately referred to Hope's Place, a children's advocacy center in Ashland, Kentucky, where she reluctantly spoke with a forensic interviewer, Jennifer Kelly.

On cross-examination, Sarah testified that previous allegations of sexual abuse arose when her aunt noticed a difference in her as a person, and her aunt suspected Sarah's father had molested her. At that time, Sarah saw a psychologist and told the psychologist her father never hurt her.

After Sarah testified, the Commonwealth called Nicholas to testify. Nicholas testified he was five (5) years old the first time Tackett sexually abused him. Nicholas said he was asleep in his room when Tackett came and got in bed with him, reached down his pants and began stroking him. According to Nicholas, Tackett then inserted his fingers into Nicholas's rectum. This lasted for ten to fifteen minutes and then Tackett told Nicholas it was just a game and not to tell anyone. Nicholas testified these acts continued once a night or every other night for “quite a while.”

Nicholas further testified that when he was seven (7) years old Tackett came in his room and anally sodomized him. Nicholas testified he knew what happened because “it” felt bigger and hurt. Tackett told him if he screamed it would get worse, so Nicholas never made any noise. Nicholas testified that he was afraid to tell anyone because he thought they wouldn't believe him, and they would shun him.

Nicholas also recalled two other specific acts. One occurred when Tackett took him and Sarah to the basement. According to Nicholas, Tackett stated that he was going to abuse Nicholas's little sister, Juliana, so Nicholas and Sarah offered to take her place. Tackett then made Sarah and Nicholas perform oral sex on him. The second incident occurred at a Holiday Inn when Tackett and Nicholas's mother were getting divorced. According to Nicholas, he and Tackett went for a swim in the hotel's pool after which Tackett anally sodomized him in the hotel room shower.

Nicholas testified that, when he was approximately twelve years old, his parents' divorce was final and Tackett moved to Guatemala, thus putting an end to the abuse. Nicholas told two trusted friends about these incidents; however, he did not tell any adults until he turned 18 years old, when he told his mother, whereupon the police and personnel at Hope's Place became involved. At Hope's Place, Nicholas underwent a recorded forensic interview, which was played to the jury by agreement of the parties.

In addition to the testimony from Sarah and Nicholas, the Commonwealth offered testimony from: Dr. Hunt and Dr. Fineburg, two physicians who examined Sarah and Nicholas at Hope's Place; Jennifer Kelly, a forensic interviewer from Hope's Place; Detective Chris Fraiser with the Kentucky State Police Electronic Crimes Branch; Regina Jackson, a guidance counsel at Nicholas's former elementary school; Sarah's and Nicholas's mothers; and Detective Chris Carter, the lead investigator.

Tackett did not present any evidence. After an hour and twenty (20) minutes of deliberation, the jury returned a verdict, finding Tackett guilty of: first degree sexual abuse of Sarah by touching her between the legs with his hand while in the room with dolls and pink in the Tackett home; first degree sexual abuse of Nicholas by stroking Nicholas's penis while in Nicholas's bedroom; first degree sodomy of Sarah by placing his penis in Sarah's mouth while in the kitchen of the Tackett home; and first degree sodomy of Nicholas by placing his penis in the anus of Nicholas while in Nicholas's bedroom. The jury acquitted Tackett of first degree rape of Sarah in the Tackett kitchen and of first degree sodomy of Nicholas while in a room at the Holiday Inn.

II. STANDARD OF REVIEW.

Tackett did not properly preserve any of his arguments for review. Therefore, we review them for palpable error. Kentucky Rule of Criminal Procedure (RCr) 10.26.

We will reverse under the palpable error standard only when a “manifest injustice has resulted from the error.” RCr 10.26. “[T]he required showing is probability of a different result or error so fundamental as to threaten a defendant's entitlement to due process of law.” Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky.2006). When we engage in palpable error review, our “focus is on what happened and whether the defect is so manifest, fundamental and unambiguous that it threatens the integrity of the judicial process.

Baumia v. Commonwealth, 402 S.W.3d 530, 542 (Ky.2013).

II. ANALYSIS.

With the above standard in mind, we address each of Tackett's arguments on appeal.

A. Testimony from Dr. Hunt and Dr. Fineburg.

Tackett argues that he was unduly prejudiced by irrelevant and impermissible bolstering hearsay testimony from the Commonwealth's witnesses, Dr. Hunt and Dr. Fineburg. The Commonwealth admits that error occurred but argues that any error was not palpable. We agree with the Commonwealth, although for different reasons.

(1) Dr. Hunt's Testimony.

Dr. Hunt examined Nicholas for Hope's Place on December 29, 2011, when Nicholas was 19 years old, and Dr. Hunt issued a report regarding her findings. At the beginning of Dr. Hunt's testimony, the Commonwealth moved to introduce her report into evidence. The trial court asked Tackett's counsel if he had any objections to the admission of the report; counsel responded that he did not; and the court admitted the report into evidence. The report stated that Nicholas told Dr. Hunt he had been sexually abused and that the perpetrator was his “dad.” Counsel for Tackett, who had a copy of the report, was, or should have been, aware of its contents before he affirmatively waived any objection...