Bennett v. Commonwealth
| Decision Date | 17 July 2020 |
| Docket Number | NO. 2017-CA-001948-MR,2017-CA-001948-MR |
| Parties | CECIL BENNETT APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM CAMPBELL CIRCUIT COURT
The victim in this case is S.C. She is the daughter of Tammy Riley's late husband's cousin. S.C. and her two-year-old sister came to live with them in 2000, when S.C. was four years old.
By the time S.C. turned sixteen and her sister was fourteen, in 2012, the household had grown. Tammy then had custody of her three-year-old grandson. Her fiancé, William "Bill" Caudill, was also living in the home, and he had custody of his step-granddaughter (four years old) and step-grandson (seven years old).
Around this time, forty-seven-year-old Bennett asked his cousin, Bill, if he could stay for a short time in an empty room in the basement. Bennett had just lost his apartment and needed a place to stay. Bill obliged.
All the children were assigned age-appropriate chores and received an allowance. S.C. was the oldest and her chores included caring for the younger children. She told a child advocacy counselor that sometimes she felt like a "teen-mom."
One night after a late arrival home from a camping trip, Tammy saw Bennett and S.C. watching a movie in the living room on the first floor. Becauseof the late hour, Tammy said, "Movie night is over," and told S.C. it was time to go to bed. S.C.'s room was on the second floor. Tammy suggested to Bennett it was time for him to go down to his room in the basement, too. S.C. complied, but needed to go to the bathroom first.
The only bathroom in the home adjoined the living room. As she exited the bathroom, Bennett surprised her, turned her around, pushed her against the door, and lifted her off the ground by putting his hand under her bottom. He slid his hand beneath her shorts and inserted his fingers into her vagina. She slapped him. S.C. testified that Bennett threatened to kill her if she told anyone. Tammy then returned to the living room and asked what the noise was she heard. S.C. said it was nothing.
The next day, Bill asked S.C. to move laundry from the washer to the dryer. The laundry room was in the basement where Bennett resided. S.C. did not see Bennett's car parked on the street and thought he was absent from the home. She proceeded downstairs and started the chore. As she was placing clothes in the dryer, Bennett surprised her again, pushed her against the dryer, lifted her as he had the night before, and again inserted his fingers in her vagina. S.C. screamed and immediately went upstairs to tell Tammy. Tammy then told Bill. Bill attempted to confront Bennett as Bennett was fleeing the house. Bennett got to his car, drove away, and never returned.
Tammy took S.C. to the hospital, where she underwent a sexual assault exam. S.C. also spoke with a police officer.
Bennett had relocated to Kansas. That may explain the delay in prosecuting this case. Four years after the incident, the Commonwealth indicted Bennett on two counts of first-degree sexual abuse.
At some point during pretrial discovery, Bennett's counsel learned that S.C.'s school counselor had spoken to S.C. about an incident involving Tammy and S.C. in the autumn of 2011. There was an accusation that Tammy had struck S.C. The counselor referred the matter to the Cabinet for Families and Children. The Cabinet, whose representative made periodic site visits anyway, sent a worker who investigated but could not substantiate the incident.
Bennett's counsel requested access to the Cabinet's record and school counseling records regarding the incident. He believed the records would show S.C. lied to school counselors and Cabinet workers in the past. He was developing a defense theory that S.C. had fabricated false claims to give the Cabinet a reason to remove her to a different foster home.
Both the prosecution and defense counsel agreed the records should be reviewed in camera for any relevant information prior to release. The judge reviewed the records but did not release them, having determined they contained no information relevant to the charged crimes.
At trial, defense counsel asked Tammy on cross-examination whether S.C. had told a school counselor that Tammy had slapped her. Tammy said she had and explained a Cabinet investigation found no substantiation. (Video Record (V.R.) 7/11/17; 4:34:30.) Defense counsel also asked Bill, on cross-examination, the same question and Bill gave essentially the same answer. (V.R. 7/11/17; 5:22:00.)
When defense counsel cross-examined S.C. regarding this incident, she contradicted Tammy and Bill, denying that she told a school counselor that Tammy slapped her. About eleven minutes after this exchange, the judge called a recess and asked the attorneys to chambers. In this conference, the judge released the one-page record she had reviewed in camera, expressing her view that until S.C. denied telling her counselor Tammy struck her, the record contained no relevant information.
The subject record is a "Counseling Contact Log" and the only entry in the entire log is dated November 29, 2011, (9:56 a.m.), more than six months before the crime; it makes no mention of Bennett. In its entirety, it says:
[S.C.] was brought to me by my NKU intern who discovered that [S.C.] was hit in the face by her mother this morning. After speaking with [S.C.] and getting specific details I contacted the Cabinet who will be sending a social worker to meet with [S.C.] today.1
Although this record does not say S.C. told either the intern or the counselor directly that Tammy struck her, Bennett has taken the position that it implies as much and wanted to have it admitted into evidence for substantive and impeachment purposes.
After the conference in chambers, defense counsel returned to questioning S.C. about the incident in more detail.
After completing cross-examination of S.C., defense counsel told the trial court that he needed to call the counselor to testify and to introduce the schoolrecord. The judge gave the defense the rest of the day, and the next morning, to locate and subpoena the counselor. Defense counsel was unsuccessful.
When trial resumed, the defense attempted to introduce the school records through Ron Kinmen, Director of Student Services at Dayton Independent Schools. The trial court held that, notwithstanding Kinmen's ability to authenticate the record, it remained inadmissible on hearsay grounds. He testified by avowal, thereby preserving this issue for appeal.
Defense counsel also believed two other prosecution witnesses testified inconsistently with interviews they had given to defense investigator Paul Long. Long said the two witnesses, S.C.'s boyfriend and S.C.'s sister, had told him S.C. described her assault to them in some detail. But S.C. testified she had not told either what had happened to her. S.C.'s boyfriend testified that S.C. had called him from the hospital but was not very forthcoming about the details. S.C.'s sister testified that Tammy had explained the incident to her and not S.C.
Defense counsel wanted Long to testify about the discrepancies. The trial court disallowed the testimony because defense counsel had not laid a proper foundation when questioning the boyfriend and sister. The defense moved to recall those witnesses for that purpose, but the trial court denied the request.
After the close of evidence, the jury deliberated and found Bennett guilty on both counts of sexual abuse and sentenced him to three years on each count, with the terms to run consecutively. This appeal followed.
The standard of review regarding admission of evidence is whether there has been an abuse of discretion. Mason v. Commonwealth, 559 S.W.3d 337, 342 (Ky. 2018). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted).
Initial ruling of non-disclosure and non-admissibility of school record
Bennett argues the trial court erred in two ways regarding the one-page, one-paragraph school counselor's record he claimed showed S.C. reported that Tammy struck her. First, says Bennett, withholding the school record prejudiced his ability to present the substance of his defense theory - that S.C. wanted to leave the home and began making false representations of abuse, first against Tammy, and then against Bennett. Second, he says not allowing the counselor's note into evidence prevented his effective impeachment of S.C.'s credibility. We are not persuaded by either argument.
To support Bennett's theory of the case, he needed proof that S.C. falsely accused Tammy of slapping her. The school record only indirectly supports that fact. It does not say S.C. told anyone anything, but rather that an intern "discovered" Tammy...
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