Campbell v. Commonwealth, No. 2007-SC-000146-MR (Ky. 6/25/2009)
| Decision Date | 25 June 2009 |
| Docket Number | No. 2007-SC-000146-MR.,2007-SC-000146-MR. |
| Parties | WILLIAM CAMPBELL, Appellant, V. COMMONWEALTH OF KENTUCKY, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
On Appeal from Kenton Circuit Court, Honorable Philip D. Overstreet, Special Judge, No. 05-CR-00496.
Shelly R. Fears, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.
Jack Conway, Attorney General of Kentucky, James Coleman Shackelford Office of the Attorney General Frankfort, Kentucky, Counsel for Appellee.
Not to be Published
Appellant, William Campbell, was convicted by a Kenton County jury of twenty (20) counts of sodomy in the first degree (under age 12), two (2) counts of use of a minor in a sexual performance, criminal abuse in the first degree, rape in the second degree, and sodomy in the first degree (forcible compulsion). The jury recommended, and the trial court imposed, a sentence of fifty (50) years for the sodomy convictions, twenty (20) years for the use of a minor in a sexual performance convictions, ten (10) years for the criminal abuse conviction, ten (10) years for the rape in the second degree (forcible compulsion) conviction, and twenty (20) years for the sodomy in the first degree conviction, all to be served concurrently. This appeal followed.
Facts
Appellant lived with his wife, Karen, and their five (5) children, A.L.C.,1 J.C.,2 A.C,3 W.C., and B.C., at various addresses in Ohio and Kentucky, including the house where most of the abuse occurred, 37 Euclid Ave., in Ludlow, Kentucky. The family had been investigated for years by social services for the neglect of their children, resulting in twenty (20) social service reports in Kentucky and twelve (12) in Ohio. The reports dealt primarily with an extreme lack of cleanliness in the home, and the medical neglect of A.L.C., Appellant's developmentally-delayed daughter, who suffered from a seizure disorder. As a result, the children were temporarily removed from the home on three (3) separate occasions.
Allegations of sexual abuse began in the fall of 2004, upon A.L.C.'s pregnancy. She gave birth on December 22, 2004. Suspected fathers ranged from A.L.C.'s classmates at school, to Appellant, Appellant's brother, Stephen Campbell, and Appellant's son, A.C. DNA testing was performed on Appellant, and A.C. The testing confirmed that A.C. was the father. During the investigations surrounding A.L.C.'s pregnancy, both A.C. and J.C. alleged that Appellant had sexually abused them and A.L.C. Appellant was eventually charged and convicted of the multiple counts aforementioned.
Prior to trial, Appellant worked out a plea bargain with the Commonwealth. With the consent of the victims, Appellant agreed to plead guilty to two (2) counts of sodomy in the second degree in exchange for the dismissal of the other charges and a recommendation for five (5) to ten (10) years on each charge, with the parties being able to argue the penalty at sentencing. Thereafter, Appellant attempted to enter an Alford plea, but the trial court refused to accept the plea because of a perceived conflict with entry into the Sexual Offender Treatment Program (SOTP) after incarceration. The matter then went to trial.
At trial, J.C. was the first complaining witness to take the stand. Appellant was charged with anally sodomizing J.C. sometime during the period of January 1, 1997 through December 31, 1998. However, when a visibly distraught J.C. testified on the late afternoon of October 16, 2006, he testified that Appellant merely touched his lower abdomen while he was wearing nothing but underwear. As J.C/s direct examination occurred late in the day and because J.C. was so distraught, the trial court recessed for the day.
During the overnight recess, the prosecution was permitted to confer with J.C. The next morning, J.C. testified that Appellant pulled his underwear off, turned him over, and stuck his penis into his "butt." A.C. later testified that he witnessed Appellant anally sodomizing J.C. but did not interrupt because he was afraid he would be "forced to do something."
J.C. also testified that he once saw Appellant sitting in a chair watching A.C. and A.L.C. having sex in his sister's bedroom. Lastly, J.C. testified that Appellant would make him stand in the corner against the wall for long periods of time, to the point where his knees would buckle, and his body would leave oil stains on the wall.
A.C. testified after J.C. He testified that, while the family lived in Ludlow, Appellant repeatedly forced him to have both oral and anal sex. A.C. said that Appellant would hold him down and put his penis into A.C.'s mouth, while A.C. would try and fight him off. In addition, A.C. claimed Appellant would push him down on the floor, hold him down, and anally penetrate him. A.C. alleged the acts of oral sex occurred approximately twelve (12) — fifteen (15) times and the alleged anal sex occurred approximately twelve (12) — twenty (20) times. Lastly, A.C. also testified as to the occurrence of group sexual activity with A.L.C, Appellant, and Stephen Campbell, Appellant's brother.
Detective Brian Frodge of the Covington Police Department testified that he spoke with Appellant on two (2) separate occasions in 2005 regarding the sexual abuse allegations. In their first interview, Detective Frodge testified that Appellant denied all the allegations of sexual abuse. In the second interview, however, Appellant stated that he had no conscious memory of sexually abusing his children, but that if he did do it, he did not remember it. Appellant then told Det. Frodge that if he did it, he must have mistaken his son, J.C, for his wife.
The jury found Appellant guilty of twenty-one (21) counts of sodomy in the first-degree (under age 12), two (2) counts of use of a minor in a sexual performance, criminal abuse in the first-degree, rape in the second-degree, and sodomy in the first-degree (forcible compulsion). Appellant was convicted and sentenced as aforementioned.
Appellant now argues the trial court erred by 1) denying his motion for directed verdict on multiple counts of sodomy in the first-degree pertaining to A.C; 2) using twenty (20) duplicate jury instructions VI through XXV — which correspond to Counts 2 through 21 of the indictment — without identifying separate and distinct incidents of sodomy in the first degree pertaining to A.C; 3) recessing trial to allow the Commonwealth to confer overnight with a key prosecution witness during his direct testimony; and 4) refusing to accept Appellant's Alford plea.
For reasons set out below, we find the trial court erred in using identical instructions.
Appellant first argues that there was insufficient evidence to convict him of twenty (20) counts of sodomy in the first-degree involving A.C. (Counts 2 through 21 of the indictment). He also makes a related claim that he was denied a unanimous verdict because the language of Instructions VI through XXV (corresponding to Counts 2 through 21 of the indictment) was identical and contained no differentiating factors separating each instance of sodomy. Because these arguments overlap, we will address them together. See Miller v. Commonwealth, 77 S.W.3d 566, 576 (Ky. 2002).
We note that "[t]he proper procedure for challenging the sufficiency of evidence on one specific count is an objection to the giving of an instruction on that charge." Seay v. Commonwealth, 609 S.W.2d 128, 130 (Ky. 1980).
[T]hat rule applies only when there are two or more charges and the evidence is sufficient to support one or more, but not all, of the charges. In that event, the allegation of error can only be preserved by objecting to the instruction on the charge that is claimed to be insufficiently supported by the evidence.
Combs v. Commonwealth, 198 S.W.3d 574, 578-579 (Ky. 2006); see also Miller, 77 S.W.3d at 577, Campbell v. Commonwealth, 564 S.W.2d 528, 530-31 (Ky.1978); Kimbrough v. Commonwealth, 550 S.W.2d 525, 529 (Ky.1977).
Here, Appellant made only a general motion for directed verdict at the end of the Commonwealth's case-in-chief, then renewed his motion at the end of the presentation of the Commonwealth's rebuttal evidence, specifically stating the motion was being renewed on the same grounds previously argued to the court. Thus, pursuant to our holdings in Pate v. Commonwealth, 134 S.W.3d 593, 597-598 (Ky. 2004) and Gibbs v. Commonwealth, 208 S.W.3d 848, 857 (Ky. 2006), Appellant's general motion for directed verdict did not properly preserve this issue for appeal. Therefore, Appellant requests palpable error review pursuant to RCr 10.26.
Under RCr 10.26, an unpreserved error may be reviewed on appeal if the error is "palpable" and "affects the substantial rights of a party." Even then, relief is appropriate only "upon a determination that manifest injustice has resulted from the error." Id. An error is "palpable," only if it is clear or plain under current law. Brewer v. Commonwealth, 206 S.W.3d 343 (Ky. 2006). Generally, a palpable error "affects the substantial rights of a party" only if "it is more likely than ordinary error to have affected the judgment." Ernst v. Commonwealth, 160 S.W.3d 744, 762 (Ky. 2005). We note that an unpreserved error that is both palpable and prejudicial, still does not justify relief unless the reviewing court further determines that it has resulted in a manifest injustice; in other words, unless the error so seriously affected the fairness, integrity, or public reputation of the proceeding as to be "shocking or jurisprudentially intolerable." Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006).
In this regard, "[i]t is [] elementary that the burden is on the government in a criminal case to prove every element of the charged offense beyond a reasonable doubt and that the failure to do so is an error of Constitutional magnitude." Miller, 77 S.W.3d at 576. Plainly, a defendant cannot be...
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