Alford v. Commonwealth of Ky., 2009–SC–000141–MR.

• Decision Date: 19 May 2011
• Docket Number: No. 2009–SC–000141–MR.,2009–SC–000141–MR.
• Citation: 338 S.W.3d 240
• Parties: William ALFORD, Appellant,v.COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

338 S.W.3d 240

William ALFORD, Appellant,

v.COMMONWEALTH of Kentucky, Appellee.

No. 2009–SC–000141–MR.

Supreme Court of Kentucky.

May 19, 2011.

David S. Mejia, Louisville, KY, Counsel for Appellant.Jack Conway, Attorney General, William Bryan Jones, Office of the Attorney General, Office of Criminal Appeals, Frankfort, KY, Counsel for Appellee.

OPINION OF THE COURT

William Alford appeals from his convictions of first-degree sodomy and first-degree sexual abuse, for which he received a total sentence of life imprisonment. He appeals to this Court as a matter of right.¹ The extensive use of inadmissible hearsay requires we reverse and remand for a new trial.

This case arose pursuant to an allegation by S.A., then age thirteen, that Appellant, her mother's boyfriend, had sexually abused her for a number of years. Appellant, who is not S.A.'s biological father, began living with S.A.'s mother Billie Jo White and her children (S.A. and her younger brother W.A.) when S.A. was three years old. The family (Appellant, White, S.A., and W.A.) moved to Hardin County, Kentucky, in 1993 when S.A. was five years old. Appellant and White subsequently had two children together. After moving to Hardin County, the family first lived in a two-bedroom trailer, and, in 1998, moved to a three-bedroom trailer. S.A. and W.A. shared the same biological father, with whom they had visitation.

On January 28, 2001, during a visitation with her biological father in Louisville, S.A., who had just turned thirteen, told her stepsister and stepmother that Appellant had been sexually abusing her. S.A.'s biological father took her to Kosair Hospital that evening, where a physical examination was performed. This examination did not reveal any evidence of sexual or physical abuse. Later that evening, S.A. was interviewed by Detective Bruce Slack of the Kentucky State Police, in which interview she alleged that Appellant had sexually and physically abused her. W.A. was interviewed as well. Thereafter, S.A. began living with her biological father, and did not return to her mother's home. Two months later, on March 29, 2001, S.A. was interviewed and examined at the Barren River Area Child Advocacy Center by Dr. Patrick Hayden. Dr. Hayden's examination revealed physical evidence of sexual contact. On March 30, 2001, an indictment was returned charging Appellant with one count of first-degree rape and one count of first-degree sodomy, alleged to have occurred from 1993 through January 25, 2001.

A jury trial commenced on October 23, 2002. At the time of trial, S.A. was fourteen years old and living with her biological father. S.A. testified that Appellant began touching her private parts when she was three or four years old. S.A. testified that Appellant began forcing her to perform oral sex on him when she was in about second grade.² S.A. recalled being six or seven years old when Appellant first began putting his penis in her vagina. She recalled being in third grade when he first began putting his penis in her anus. S.A. estimated that Appellant had raped her “three to four hundred times, it felt like.” S.A. testified that Appellant made her perform oral sex “a couple hundred times.”

S.A. indicated the incidents usually took place in the bedrooms or bathroom of the trailer. At times she would testify as to what Appellant would generally do, and also described approximately fifteen specific incidents of oral, anal, or vaginal intercourse. S.A. testified that sometimes her mother was home when the abuse took place and sometimes she was not. S.A. testified that she did not tell her mother, or anyone, about what Appellant was doing to her because she was afraid that Appellant would hurt her (S.A.) or her family. S.A. described Appellant as a “violent man,” and testified that he had hit, kicked, slapped, and choked her, including once causing her to black out; that he had hit W.A. and had once choked her younger sister, L.A., when L.A. was two years old; and that he had hit and thrown things at White and once held a gun to her head. S.A. testified that Appellant drank alcohol and smoked marijuana. She testified that he made her and W.A. drink wine coolers, and that Appellant hit her when she got sick and could not finish her wine cooler. She testified that Appellant once forced her to smoke marijuana, which made her sick.

S.A. testified that she was raped for the last time on January 25, 2001. She testified that this occurred in Appellant's bedroom in the trailer while her mother was at the store. On January 28, 2001, while visiting her biological father in Louisville, she told her stepsister and her stepmother that Appellant had been abusing her. After this date S.A. began living with her biological father, and did not return to her mother's home. S.A. testified that she had always wanted to live with her biological father, but denied having made up the allegations in order to be able to do so.

S.A.'s mother, Billie Jo White, testified that despite living in a small trailer with thin walls, she never saw, nor heard, anything that indicated S.A. was being sexually assaulted or physically abused. White acknowledged, however, that there were times when she was not at home, because she was at work or elsewhere, and therefore could not say what may or may not have happened when she was not there. White denied that Appellant had been physically abusive to her (White).

W.A. (S.A.'s brother), who was thirteen years old at the time of trial, testified that he never saw Appellant engage in anything improper with S.A. When confronted with a statement he had made to police when he was interviewed in January, 2001, regarding S.A.'s allegations—that he once walked in the bedroom and saw S.A. on her hands and knees and saw Appellant sitting on the edge of the bed—W.A. testified that he hadn't really seen this. W.A. testified that he been told to say that story by their (his and S.A.'s) biological father. W.A. testified that the allegations were the result of a plan by their biological father so that S.A. could come and live with him. When confronted with another statement he had made in the interview—that there were times when he had seen Appellant and S.A. in the bathroom together—W.A. testified that their father had told him to say that too and that he had never really seen this either. W.A. further testified that their father had pornographic movies and adult sex toys in his home.

Dr. Hayden testified as to his interview and examination of S.A. Dr. Hayden testified that his physical findings were consistent with sexual penetration of S.A.'s vagina. He did not find evidence of anal penetration. Detective Slack testified as to the contents of his interview with S.A.

Appellant did not take the stand. The jury was instructed on one count of first-degree rape and one count of first-degree sodomy, with first-degree sexual abuse as a lesser included offense of both charges. The jury found Appellant guilty of first-degree sodomy and first-degree sexual abuse (as a lesser included offense of first-degree rape). Appellant was ultimately sentenced to life imprisonment for the first-degree sodomy conviction and five years for the first-degree sexual abuse conviction, for a total of life imprisonment.

Appellant raises a number of assignments of error, most of which were not preserved by trial counsel, for which Appellant requests palpable error review under RCr 10.26.³ We conclude that the admission of an egregious amount of inadmissible hearsay requires the convictions be reversed and the case remanded for a new trial. We shall first address this error, and then address Appellant's remaining arguments likely to recur on retrial.

Inadmissible Hearsay/Bolstering

Appellant contends that the repeated use of inadmissible hearsay, through the testimony of Detective Slack and Dr. Hayden, constitutes palpable error requiring reversal. Appellant concedes that these assignments of error are unpreserved, as trial counsel failed to object, and requests review per RCr 10.26.

Detective Bruce Slack of the Kentucky State Police was called as the last Commonwealth's witness. Slack testified that he took a taped statement from S.A. on January 28, 2001. The prosecutor asked, “Was her testimony [at trial] consistent with the statement that she gave to you?” Detective Slack responded that it was. On re-direct, the prosecutor asked specifically about Detective Slack's interview with S.A., including the following:

Q. Did you ask her the question, did the defendant ever use condoms? Do you recall if she responded, no, he never did?

A. Yes, sir.

Q. Do you recall her making the statement that “he told me I will kill you and he said to my mom, if you ever leave me, I will kill you”? And then [S.A.] saying that the defendant said that to her and her mother Billie Jo White?

A. Yes, sir.

....

Q. [S.A.] said that she had her last sexual contact that Thursday night, is that correct, sir?

A. Yes, sir.

Q. Do you recall that she said he forces her, speaking in relation to her mother, he forces her to do things? “He gets drunk, he makes mom do things he makes me do.” And then she said, “have sex with me.” Is that correct?

A. Yes, sir.

Q. Do you recall, related to alcohol, [S.A.] said that “he tricked me into drinking gin and orange juice”?

A. Yes, sir.

Q. Do you recall [S.A.] said that “he tells me I'm really good at it”?

A. Yes, sir.

Q. Do you recall ... the question was asked, “How many times did you have intercourse?” And she said, “More than I can count.” And then you in fact were the one that prodded her to assign a number to this. Is that correct?

A: That's correct, sir.

Q: You prodded her with 200, and then you said 300 or 400, and finally she adopted the 300 to 400. Is that an accurate assessment, sir?

A: Yes, sir.

Q: The question was asked, related to oral sex, and she responded, “He makes me do it every day of the week.” Then, the question was asked, “How often was that?” And s...