862 S.W.2d 856 (Ky. 1993), 92-SC-308, Alexander v. Commonwealth

Docket Nº92-SC-308-MR.
Citation862 S.W.2d 856
Opinion JudgeSTEPHENS, Chief Justice.
Party NameEarl Flint ALEXANDER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
AttorneyFrank W. Heft, Jr., Public Defender, and Bruce P. Hackett, Asst. Public Defender, Louisville, for appellant. Chris Gorman, Atty. Gen. and Lana Grandon, Asst. Atty. Gen., Frankfort, for appellee.
Judge PanelSTEPHENS, Chief Justice, dissenting.
Case DateMay 27, 1993
CourtSupreme Court of Kentucky

Page 856

862 S.W.2d 856 (Ky. 1993)

Earl Flint ALEXANDER, Appellant,

v.

COMMONWEALTH of Kentucky, Appellee.

No. 92-SC-308-MR.

Supreme Court of Kentucky

May 27, 1993

Page 857

Rehearing Denied Sept. 2, 1992.

Page 858

Frank W. Heft, Jr., Public Defender, and Bruce P. Hackett, Asst. Public Defender, Louisville, for appellant.

Chris Gorman, Atty. Gen. and Lana Grandon, Asst. Atty. Gen., Frankfort, for appellee.

STEPHENS, Chief Justice.

Appellant was indicted by a Jefferson County Grand Jury for the rape and sodomy of his seven year old stepdaughter, A.C. The first trial of appellant ended in mistrial. At the second trial the jury was instructed on rape in the first degree, with sexual abuse as a lesser included offense, and two counts of sodomy in the first degree. The jury found appellant guilty of rape in the first degree and guilty of one count of sodomy in the first degree. A jury poll revealed that the not guilty verdict as to the second count of sodomy was due to a failure of proof beyond a reasonable doubt as to that charge. The jury recommended, and the judge imposed, twenty (20) years on each offense, to run consecutively.

A.C. testified that on July 2, 1990, when her mother was in the hospital giving birth, appellant raped and sodomized her. Appellant denied the allegations and asserted that A.C. fabricated such charges due to her jealousy of appellant. The facts will be discussed in more detail as specific issues are reviewed.

The issues considered by this Court are as follows: (1) whether appellant was denied a fair trial due to general prosecutorial misconduct; (2) whether it was reversible error for the investigating detective to testify that in her opinion the alleged victim was telling the truth; (3) whether the Commonwealth's cross-examination of appellant's job status was unduly prejudicial; (4) whether testimony by a social worker as to what the alleged victim told her was unduly prejudicial; (5) whether it was prejudicial error for the examining doctor to testify as to the ultimate issue in the case; and (6) whether the trial court erred when it refused to strike for cause two venirepersons who expressed reservations about whether they could sit impartially on the case.

A majority of this Court does not deem that the first three issues constitute reversible error and would affirm as to these issues. However, a majority does find that the last three issues constitute prejudicial error and reverses as to these issues.

Appellant raised additional issues. However, after consideration of those issues, we have determined that they do not merit discussion.

  1. GENERAL PROSECUTORIAL MISCONDUCT

    Appellant asserts that throughout the trial the Commonwealth engaged in a pattern of misconduct which denied appellant a fair trial. In addition to the alleged errors discussed subsequently in this opinion, appellant cites as prosecutorial misconduct: (1) the Commonwealth's comment in voir dire that the Commonwealth represented the community and defense counsel did not; (2) the Commonwealth's derogatory comments in opening statement concerning A.C.'s mother; (3) the Commonwealth's comment in opening statement that Dr. Pope would give a diagnosis of sexual abuse; and (4) the Commonwealth's improper comments on jury instructions and defense counsel's actions.

    The trial court sustained numerous objections by appellant's counsel and gave admonitions to the jury when appropriate. "[A] trial of this magnitude will invariably be marred with occasional minor or surface knicks which, when cured by the trial court, cause no substantial error." Stanford v. Commonwealth, Ky., 734 S.W.2d 781, 791 (1987).

    Page 859

    In reviewing the actions of lower courts, appellate courts "must focus on the overall fairness of the trial, and not the culpability of the prosecutor." Slaughter v. Commonwealth, Ky., 744 S.W.2d 407, 411, 412 (1987). Alleged errors are not to be considered in a vacuum. We must consider the Commonwealth's conduct in context and in light of the trial as a whole. When viewed in this manner, a majority of this Court finds that the cumulative effect of the Commonwealth's actions did not deprive appellant of a fair trial.

  2. OPINION TESTIMONY BY THE DETECTIVE

    Detective Fraction, who is with the Louisville Police Division Crimes Against Children Unit (hereinafter CACU), spoke with A.C. concerning the alleged sexual abuse and assisted in taking her to the emergency room for an examination. During Detective Fraction's testimony, the Commonwealth asked Fraction what she did after taking A.C. to the emergency room. Fraction responded:

    I left the hospital. When I left the hospital, I went to seek a warrant for the arrest of Mr. Alexander because I felt, in my opinion, that the child was telling the truth.

    Appellant's immediate objection was sustained, but a request for mistrial was overruled. The jury was admonished by the trial judge as follows:

    Let me admonish you to disregard Detective Fraction's testimony concerning her opinion regarding whether the child was telling the truth. It is the function of the jury to determine the credibility to accord the child's testimony and it is not admissible evidence for this detective or anyone else to offer opinion testimony on whether or not the child was telling the truth. That is for the jury's determination alone.

    It is normally presumed that a jury will follow an instruction to disregard inadmissible evidence that is inadvertently presented to it, unless (1) there is an overwhelming probability that the jury will be unable to follow the court's admonition; and (2) a strong likelihood that the effect of the inadmissible evidence would be devastating to the defendant. Greer v. Miller, 483 U.S. 756, 766, n. 8, 107 S.Ct. 3102, 3109, n. 8, 97 L.Ed.2d 618 (1987).

    Appellant cites Bussey v. Commonwealth, Ky., 797 S.W.2d 483 (1990) for the proposition that Detective Fraction's testimony constituted reversible error. However, Bussey is distinguishable from the case presently before the Court. In Bussey the Commonwealth asked the officer whether he had come to a conclusion about whether the victim had been taken against his will. The officer responded that he had come to the conclusion that some type of misconduct had occurred. In the case at bar, Officer Fraction gave her opinion as an unsolicited response. Because Fraction had only testified on two previous occasions she was unaware that it was impermissible to give her opinion. We are not saying that ignorance of the law, or rules of evidence is an excuse, but under the facts of this case it appears that the opinion was not given in bad faith and the subsequent admonition made the error harmless.

    Absent bad faith, an admonition given by the trial judge can cure a defect in testimony. See Stanford v. Commonwealth, Ky., 734 S.W.2d 781 (1987); Dunn v. Commonwealth, Ky.App., 689 S.W.2d 23 (1984). There is no "overwhelming probability" that the jury was unable to follow the trial judge's thorough and specific admonition. In the instant case, a majority of the Court finds that the trial judge's admonition to the jury did cure any error resulting from Detective Fraction's unsolicited response.

  3. CROSS-EXAMINATION OF APPELLANT

    Appellant testified at trial that he was working during the time frame in which the alleged abuse occurred. On cross-examination of appellant the Commonwealth sought to rebut appellant's testimony through the use of inconsistent statements made by appellant. These statements were contained in documents appellant filed in order for his family to receive AFDC and food stamps. According to the documents of the social security insurance office, appellant had only

    Page 860

    worked in January of 1990 and had not worked during the time frame of the alleged abuse. The trial court ruled that the Commonwealth was entitled to evidence which showed whether appellant was working on the days the events were to have occurred.

    "That the credibility of any and every witness may be impeached 'by showing that he has made statements different from his present testimony' was the law in this state as long ago as 1851." Jett v. Commonwealth, Ky., 436 S.W.2d 788, 790 (1969). In Jett the Court held that when a witness has testified about some facts of a case, the jury is entitled to hear what else the witness has said about it. This is true so long as the evidence is relevant to the merits of the case and does not concern a collateral issue.

    In the case before the Court, part of appellant's defense was that he was working during the time the alleged abuse occurred. Records showing that appellant had earlier stated that he was not working during this time go directly to the heart of appellant's defense.

    The Commonwealth was required to lay a proper foundation before confronting appellant with the social security insurance office records. This foundation was accomplished by establishing that appellant's family was receiving food stamps and AFDC.

    While the Commonwealth did stray to collateral matters in regard to appellant's welfare benefits, the trial judge sustained appellant's objection to such questions. The collateral issue questions were not unduly prejudicial and do not require reversal. A majority of this Court finds that the Commonwealth's line of questioning does not constitute reversible error.

  4. TESTIMONY OF THE SOCIAL WORKER

    Ms. Horrar, an investigative social worker employed with the Child Protective Services of the Cabinet for Human Resources (hereinafter CHR) and assigned to the CACU, testified as a...

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