Dennis v. Com., No. 2008-SC-000049-MR.
| Decision Date | 18 March 2010 |
| Docket Number | No. 2008-SC-000049-MR. |
| Citation | 306 SW 3d 466 |
| Parties | Robert Eugene DENNIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Erin Hoffman Yang, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.
Jack Conway, Attorney General of Kentucky, Kenneth Wayne Riggs, Assistant Attorney General, Frankfort, KY, Counsel for Appellee.
Robert Dennis appeals as a matter of right from a Judgment of the Daviess Circuit Court sentencing him to sixty-five years in prison following a jury determination that he had sodomized and sexually abused S.J., his stepdaughter. Dennis, who denied having had any sexual contact with his stepdaughter, claims the trial court erred by excluding evidence that S.J. had on a prior occasion made a false accusation of sexual abuse against other persons. We reject Dennis's claim on the record as it now stands but agree with him that he was entitled to have the trial court inspect Cabinet for Health and Family Services (CHFS) records pertaining to the prior accusation and to have released to him any records bearing on the falsity of S.J.'s prior allegations. Because the requested records were never produced for the court's review, we vacate the judgment and remand for the trial court's consideration of those materials. In evaluating the admissibility of prior accusations, the trial court must first determine whether they have been shown to be demonstrably false, and if so, it must then consider the probativeness of the evidence pursuant to KRE 608(b). If the evidence is "probative of truthfulness or untruthfulness," it must still pass the balancing test in KRE 403 in order to be admissible. As we discuss infra, depending upon the outcome of the court's review of the CHFS materials, Dennis may be entitled to a new trial but, alternatively, should there be no additional admissible evidence, his prior judgment is to be reinstated by the trial court.
The Commonwealth's evidence established that S.J. was born in January 1995 and that she has a sister, L.A., who is about eleven years her elder. S.J.'s parents separated in about 1999, and her mother began residing with Dennis in about 2001. Her mother and Dennis married in 2003. They resided with S.J. in a small trailer on First Street in Owensboro, where L.A. would occasionally stay with them for a week or two at a time. The charges against Dennis arose in March 2006, when S.J., then eleven years old, informed her mother that Dennis had subjected her to acts of anal and oral sodomy, the last such act having occurred the previous December. S.J.'s mother took her to the emergency room, where hospital personnel referred S.J.'s allegations to the Owensboro Police.
S.J. eventually told police investigators and investigators from CHFS that Dennis's abuse had continued sporadically for about four years. At trial, although unsure of the dates, she testified in considerable detail to three acts of sodomy and to another incident when Dennis placed his mouth on her breast. She testified that during one of the acts of anal sodomy a neighbor had walked in on them and had appeared shocked. The neighbor, James Goins, testified that he had entered Dennis's trailer to offer Dennis a beer and had found Dennis sitting in a chair holding S.J. on his lap. According to Goins, Dennis had his hand up S.J.'s dress and was rocking her back and forth. When Dennis realized that Goins was there, he screamed at him to get out.
Two witnesses testified for the defense. Dennis denied having had any sexual contact with S.J. and claimed that her allegations had been instigated by her sister, L.A. Dennis maintained that L.A. resented him as a stepparent and had had numerous conflicts with him. The last such conflict, he testified, occurred just a few days before S.J. made her allegations. L.A. had been making one of her occasional stays in the household, and, frustrated by her unwillingness to help around the house, Dennis and S.J.'s mother had insisted that she leave. According to Dennis, this made L.A. very angry. A few days later, L.A. stopped by to visit with S.J. Dennis testified that the two girls spent about a half hour locked in the bathroom and about a half hour after L.A. left S.J. made the allegations against him. Dennis claimed that Goins, the neighbor, also bore a grudge against him after a recent fight.
S.J.'s mother testified on Dennis's behalf and generally confirmed his testimony concerning L.A. In particular, she seconded his testimony that L.A. had visited S.J. shortly prior to S.J.'s allegations. L.A. and S.J. testified, however, that L.A. had not visited that day. S.J. testified that, although Dennis had never overtly threatened her, she had said nothing about his abuse because she was afraid of him. She had finally decided to speak up, however, because she concluded that if she did not the abuse would continue.
As noted, the jury rejected Dennis's defense and found him guilty of three counts of first-degree sodomy and one count of first-degree sexual abuse. The jury recommended twenty-year sentences for each sodomy count and five years for the sexual abuse count, all to be served consecutively, for a total sentence of sixty-five years. The trial court imposed the recommended sentence.
Dennis contends on appeal that his defense was unduly impaired by the exclusion of evidence that in about 2001, when S.J. was five or six years old, she accused her father, along with her sister, L.A., and L.A.'s boyfriend, of touching her vaginal area inappropriately after a dog had jumped on her lap and licked or scratched her groin. Apparently S.J. told her mother about the incident, and she reported it to the police. Police and CHFS investigators eventually determined that no wrongdoing could be substantiated, and so the matter was dropped.
Prior to trial, Dennis sought discovery of CHFS records pertaining to that 2001 incident and also moved in limine to be allowed to impeach S.J.'s veracity with what he characterized as proof of that prior false allegation of sexual misconduct. The trial court granted the discovery request, with limitations that will be explained below, but following a KRE 104 admissibility hearing in which testimony was offered by a CHFS investigator and S.J.'s mother, disallowed any evidence at trial concerning S.J.'s 2001 allegations. Dennis complains that the trial court mishandled the discovery matter by failing to obtain for the court record and then to review those potentially exculpatory materials. He further contends that the trial court erred by excluding the evidence he had of S.J.'s prior false allegations. Although on the record before us we reject this latter contention, we agree with Dennis that he was entitled to have the trial court inspect the records which CHFS failed to produce. Consequently, we must remand for those records to be acquired, if they exist, and then reviewed and handled in the manner described herein.
I. On The Existing Record, Dennis Was Not Entitled To Cross-Examine S.J. Concerning The 2001 Incident Because the Allegations Were Not Demonstrably False.
Prior to trial, Dennis sought to explore the circumstances surrounding the 2001 episode when S.J. apparently complained that a dog had jumped on her lap and that afterward her father, her sister, and her sister's boyfriend had touched her inappropriately. CHFS investigated that incident, but was unable to substantiate any impropriety and consequently closed its file. As noted, at the KRE 104 admissibility hearing, Dennis called the CHFS investigator involved in the 2001 incident and S.J.'s mother. Dennis claimed that S.J. fabricated the earlier complaint and contended that he should be permitted to use evidence of that prior fabrication to impeach S.J.'s truthfulness and thereby cast doubt on her claims against him. The trial court denied Dennis's motion, finding the allegations were not demonstrably false.
Dennis correctly notes that KRE 608 permits an attack on a witness's credibility and that under KRE 608(b) that attack may take the form of cross-examination about specific instances of conduct if, in the court's judgment, the specific instances are "probative of truthfulness or untruthfulness."1 The rule cautions, however, that "no specific instance of conduct of a witness may be the subject of inquiry under this provision unless the cross-examiner has a factual basis for the subject matter of his inquiry."
Dennis also relies on KRE 404, which provides in relevant part for the introduction of evidence concerning either a victim's or a witness's character, including his or her character for truthfulness.2
Although KRE 404(a)(2) suggests that an accused cannot introduce character evidence regarding the victim of criminal sexual conduct, this language is generally viewed as a reference to KRE 412, the rape shield law, which "governs the admissibility of such a victim's behavior and reputation for past sexual behavior." Underwood and Weissenberger, Kentucky Evidence Courtroom Manual 125 (2009-2010 ed.). The rape shield provision in KRE 412 prohibits, except in carefully delineated circumstances, the admission of evidence ...
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