Bell v. Com.
| Decision Date | 24 March 1994 |
| Docket Number | No. 92-SC-807-MR,92-SC-807-MR |
| Citation | 875 S.W.2d 882 |
| Parties | David BELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Mark Wettle, Louisville, for appellant.
Chris Gorman, Atty. Gen., Laura Early, Asst. Atty. Gen., Frankfort, for appellee.
This is a direct appeal from the judgment of the Garrard Circuit Court which sentenced appellant, David Bell, to eighty years' imprisonment following a conviction of sodomy in the first degree.
David A. Bell was indicted by the Garrard County Grand Jury on February 14, 1992 for the offenses of sodomy in the first degree The facts leading up to appellant's arrest for sodomy first came to light on December 14, 1989 when A.C. responded positively to the questioning of his mother, Sharon Cornelius, about whether anyone had ever "bothered him." A.C. replied that appellant had "played" with his penis. A.C.'s mother immediately confronted appellant. He denied the allegations. She then packed the clothes belonging to herself and A.C. and moved out of appellant's home.
and assault in the second degree. The indictment alleged that the appellant forced A.C., the minor child of his live-in girlfriend, to engage in deviate sexual intercourse on or about November 1989. The assault charge, which was later amended to assault in the fourth degree, involved the hitting of A.C. by appellant with a nickel-studded belt and allegedly occurred on January 24, 1992. Appellant was acquitted of the assault charge.
On advice from her psychologist, A.C.'s mother reported the allegations to a social worker, Marsha Green, at the Department of Social Services, Cabinet for Human Resources (CHR). Ms. Green scheduled an interview with A.C. for December 20, 1989 and advised Ms. Cornelius to keep A.C. out of appellant's home. After interviewing A.C., Ms. Green recommended counseling for the child. She repeated her admonition to Ms. Cornelius to keep A.C. out of appellant's home, even cautioning the mother that her failure to protect him would result in the child being removed from her custody by the Department of Social Services and placed in foster care. The next day Ms. Green reported the abuse allegation to the Kentucky State Police, who apparently never investigated the report.
Despite the advice of the social worker, Sharon Cornelius moved A.C. back into appellant's home. While she testified that it was approximately four months later, several other witnesses including her sister, Connie Cornelius, testified that it was only ten days later.
Regrettably it was not until January, 1992, that this child was permanently removed from appellant's home, after Connie Cornelius discovered not only that appellant's abuse of A.C. was ongoing, but also that appellant had, on one occasion, allegedly abused T.C., A.C.'s older brother. At this point CHR re-entered the picture. A.C. and T.C. stayed with their aunt for nine days until they moved in with their natural father.
The evidence at trial consisted of A.C.'s testimony which described the various acts of sexual and physical abuse. Marsha Green, the original CHR social worker, testified about the first report made to CHR in December, 1989. Also through Ms. Green, the Commonwealth introduced into evidence a detailed picture drawn by A.C. during an interview with Ms. Green depicting his version of appellant ordering him to engage in sodomy, with A.C. resisting appellant's advances. The Commonwealth did not attempt to elicit from Ms. Green any conclusion she may have drawn from the picture, but rather simply that the picture was drawn by A.C. in her presence. Defense counsel did not object to the introduction of this evidence.
A.C.'s fourteen year old brother, T.C., was also called to the stand to describe for the jury two acts of sodomy allegedly perpetrated against him by appellant while on a camping trip in 1991. The trial court allowed the testimony over defense counsel's strenuous objections stated both in a pre-trial motion in limine, as well as during the trial.
Appellant's defense consisted of several witnesses, including friends, neighbors, and a former baby-sitter of the victim and his brother. All of these witnesses testified that they were frequently in the Bell home, often unannounced, and had never observed inappropriate behavior on the part of appellant toward either child. Moreover, through these witnesses defense counsel attempted to establish that, from all appearances, the rapport between appellant and the two boys was loving, normal and suggestive of a father-son type relationship. Appellant elected not to testify on his own behalf. The jury was admonished accordingly.
In this appeal appellant raises three issues which he claims constitute reversible error on the part of the trial court. First he alleges that error occurred with respect to With respect to appellant's first two allegations of error this Court finds, with the utmost reluctance, 1 that we must reverse appellant's conviction and remand for a new trial. The reasons are compelling and will be discussed in detail below. As to the drawing because it is an unpreserved error, we affirm and for that reason, will not address it in this opinion.
the admission into evidence of medical records from the office of Dr. Deborah Martz, a physician who examined A.C. more than two years after the alleged sexual abuse. Next, appellant complains of substantial prejudice resulting from the introduction of evidence regarding uncharged crimes alleged to have been committed by appellant against T.C., the victim's brother. These two claims of error are preserved by defense counsel's timely objections during trial. Finally, appellant contends the trial court erred by admitting into evidence a drawing made by A.C. depicting his account of appellant's sexual violence towards him. As stated before, A.C. produced the drawing during his interview with the social worker, Marsha Green, in December of 1989. This alleged error is unpreserved.
Following the testimony of the Commonwealth's final witness, the trial court, over appellant's objection, admitted into evidence medical records from the office of Dr. Deborah Martz. Dr. Martz examined A.C. on January 30, 1992, more than two years after the sexual abuse alleged to have occurred in November of 1989.
Dr. Martz's report relates A.C.'s detailed description of appellant's abuse of him. She wrote, "evidently, there was penile penetration of the rectum at least twice and then a number of episodes, 18 to 20, of either oral or tactile touching of his penis." It should be noted that the number of episodes mentioned in this report is significantly higher than that contained either in the indictment or in A.C.'s actual testimony at trial. Further, the report indicated the existence of "a small ulcer-like area about 0.1 mm" located near A.C.'s rectum, ordered testing for chlamydia and recommended therapy for the child. The primary diagnosis on the report was listed as "sexual abuse." The report also states that A.C. identified appellant as his abuser. Dr. Martz did not testify at trial.
The following portion from the trial transcript reveals the circumstances under which Dr. Martz's office records were admitted into evidence:
that's a few of them I read. I also understand your position.
(Emphasis added). As reflected by the transcript there are two basic defense objections to the admissibility of Dr. Martz's medical report. Both are valid and involve basic propositions of evidence law.
The threshold obstacle to the admissibility of this medical report is its lack of authentication. The concept of authentication (or the laying of a "foundation,") relates to a trial court's need for preliminary proof of two things: (1) the pertinence of the proposed evidence to the litigation, and (2) that a document is what its proponent claims it to be. The...
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