Bussey v. Com.

• Decision Date: 18 October 1990
• Docket Number: No. 90-SC-05-DG,90-SC-05-DG
• Citation: 797 S.W.2d 483
• Parties: Tommy BUSSEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 483

797 S.W.2d 483

Tommy BUSSEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 90-SC-05-DG.

Supreme Court of Kentucky.

Oct. 18, 1990.

Richard Meena, Jr., Louisville, for appellant.

Frederic J. Cowan, Atty. Gen., Perry T. Ryan, Asst. Atty. Gen., Frankfort, for appellee.

LAMBERT, Justice.

This Court granted discretionary review of the opinion of the Court of Appeals which affirmed appellant's conviction of sexual abuse in the first degree. In the trial court appellant was sentenced to three years imprisonment. Six issues are presented for our review.

Appellant was convicted of sexually abusing a profoundly retarded, obese, fifty-year-old man. According to the victim, as appellant and his brother, Clifford Bussey, drove down a street in Shelbyville, the victim, a man whom they knew, called to them and asked for a ride. The Bussey brothers stopped and the victim entered the vehicle and sat in the right front seat, with appellant's brother driving and appellant riding in the back seat. The victim requested that he be taken to the fairgrounds, but the party did not go directly there. Instead, according to the victim, while they were riding along, appellant reached from the back seat between the passenger's seat and the right front door, unfastened the victim's trousers, partially removed his trousers and underclothes, fondled his genitals, and placed his finger inside the victim's rectum and left it there for ten minutes. Thereafter, the victim was taken to the main gate of the fairgrounds where he was released.

After leaving the fairgrounds and returning home, the victim told his mother what had happened and she contacted the local police.

At the outset, appellant contends he was entitled to a directed verdict and that the trial court erred in failing to sustain his motion. For this contention appellant relies upon the fact that the victim was severely retarded, a physically mature and strong adult, and that the victim's account of the encounter is inherently improbable. In addition to Commonwealth v. Sawhill, Ky., 660 S.W.2d 3 (1983), this Court's decision which defines the accepted standard for entitlement to a directed verdict, appellant relies on Holland v. Commonwealth, Ky., 272 S.W.2d 458 (1954), and analogizes this case to cases involving the sexual abuse of small children. In Holland, this Court said, "[If] circumstances ... [are] so incredible or improbable or so at variance with natural laws or common human experience as to be patently untrue," a directed verdict should be given. "This rests upon the appellate court's conclusion that the conviction was the result of passion and prejudice and was not based upon evidence having the quality of legal proof." Id. at 459.

While appellant insists that no reasonable juror could have believed the story told by the victim, we believe otherwise. We acknowledge the improbability of some of the details of the victim's version of the story, but the jury could have reasonably concluded that despite the improbability of every detail related by the victim, an act of sexual abuse occurred. In other words, to survive a motion for directed verdict, it is not necessary that every fact related by the victim be reasonable and probable. It is sufficient if the victim's testimony taken as a whole could induce a reasonable belief by the jury that the crime occurred.

Appellant next contends that the trial court erred to his substantial prejudice by admitting the hearsay testimony of four police officers. During the Commonwealth's case in chief, Officers Shirley, Scott, Schiller and Mullhull were permitted to repeat the victim's version of what transpired. The Commonwealth argues that this testimony was properly admitted because the victim's credibility had been attacked during cross-examination. According to this theory, anytime the credibility of a witness is attacked, hearsay evidence which tends to corroborate the witness's story becomes admissible. This view of the law is much too expansive.

The rule which permits rehabilitation of a witness is limited to those circumstances in which the credibility of the witness is attacked on the basis of a prior inconsistent statement, recent fabrication, improper influence, or some circumstance which impairs his present ability to recall and narrate the event. Eubank v. Commonwealth, 210 Ky. 150, 275 S.W. 630 (1925), and Reed v. Commonwealth, Ky., 738 S.W.2d 818 (1987). The Commonwealth's reliance on Lowery v. Commonwealth, Ky., 566 S.W.2d 750 (1978), is misplaced. In that case, the witness was impeached by evidence that he had been drinking alcohol shortly before his testimony. In view of this circumstance, the court permitted rehabilitation of the witness by proof that he had earlier told a story consistent with his testimony at trial. The prior consistent statement was permitted because it disclosed that the story was the same as before the "onset of the malady."

Nothing contained in the facts presented here permits such a result. There was no contention of recent fabrication nor was there any evidence that the victim's mental condition had become diminished in the period between the occurrence of the crime and trial. He was cross-examined on the basis of the improbability of his story, his understanding of the difference between truth and falsity, and cross-examination generally was directed toward persuading the jury that it should not believe the victim's testimony. Merely challenging the truthfulness of a witness's testimony does not open the door to a parade of witnesses who repeat the witness's story as told to them. The law of Kentucky is well stated in Eubank v. Commonwealth, supra, as follows:

"As a general rule, a witness cannot be corroborated by proof that on previous occasions he has made the same statements as those made in his testimony. Where, however, a witness has been assailed on the ground that his story is a recent fabrication, or that he has some motive for testifying falsely, proof that he gave a similar account of the matter when the motive did not exist, before the effect of such an account could be foreseen, or when the motive or interest would have induced a different statement, is admissible." Id. at 275 S.W. 633.

This case well illustrates the reason for the foregoing rule. The only witnesses to the occurrence of this crime were appellant and the Bussey brothers. To arrive at a conviction, it was necessary for the jury to believe the victim and disbelieve appellant. As such, the jury was required to determine the credibility of all fact witnesses. This process was flawed when four law enforcement witnesses were permitted to bolster the victim's testimony by repeating what he had told them. Accordingly, we must reverse the conviction.

Despite a finding by the trial court that the victim was severely retarded, it nevertheless permitted him to testify. While this presents a close question of law, we must accord great deference to the trial judge's determination of competency. Strong v. Abner, 268 Ky. 502, 105 S.W.2d 599 (1937). See R. Lawson, The Kentucky Evidence Law Handbook, § 3.05(A). Accordingly, there was no error in this ruling.

Appellant next contends that the trial court erred to his prejudice by permitting Officer Shirley to testify as to an inadmissible conclusion. The Commonwealth contends this issue is unpreserved for our review, but we believe the objection was properly brought to the attention of the trial court and that the trial court overruled the objection, albeit in ambiguous terms.

On direct examination, Officer Shirley was asked whether he had come to a conclusion that the victim had been taken against his will to the scene where the sexual abuse occurred. He answered, "Yes. I came to the conclusion that there had to have been some type of misconduct or I would not have received a complaint." Officer Shirley then...