Duncan v. Commonwealth Of Ky.

• Decision Date: 23 September 2010
• Docket Number: No. 2007-SC-000925-MR.,2007-SC-000925-MR.
• Citation: 322 S.W.3d 81
• Parties: Errick D. DUNCAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

322 S.W.3d 81

Errick D. DUNCAN, Appellant,

v.COMMONWEALTH of Kentucky, Appellee.

No. 2007-SC-000925-MR.

Supreme Court of Kentucky.

Sept. 23, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Erin Hoffman Yang, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.

Jack Conway, Attorney General of Kentucky, Susan Roncarti Lenz, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, KY, Counsel for Appellee.

Opinion of The Court by Justice ABRAMSON.

Errick Duncan appeals from a Judgment of the Jefferson Circuit Court convicting him of kidnapping, in violation of KRS 509.040; of first-degree sexual abuse, in violation of KRS 510.110; and of two counts of second-degree stalking, in violation of KRS 508.150. In accord with the jury's status determination and sentence recommendation, Duncan was sentenced as a first-degree persistent felon to concurrent terms of imprisonment totaling thirty years. He appeals to this Court as a matter of right.

Duncan was accused of a series of crimes that occurred in south Louisville in the fall of 2003. The Commonwealth alleged that he kidnapped fourteen-year-old SM, twice sexually abused her, sodomized her, and raped her. The jury found him guilty of kidnapping and of one count of sexual abuse, but could not reach a verdict on the other charges. The Commonwealth also alleged that Duncan stalked two other girls from the same neighborhood, thirteen-year-old JM and fourteen-year-old JH, and that he unlawfully imprisoned and menaced JH. The jury could not reach a verdict on the unlawful imprisonment and the menacing charges, but found Duncan guilty of stalking both girls. Duncan, who testified at trial, denied the charges and argued that he had been wrongly identified as the perpetrator.

On appeal, Duncan contends that his trial was rendered unfair when he was subjected to improper cross-examination and when, during her closing argument, the prosecutor misrepresented evidence concerning DNA test results. He also contends that one of the investigating officers was improperly allowed to bolster the victims' testimony; that under the kidnapping exemption statute he was entitled to a directed verdict on the kidnapping charge; and that JH's out-of-court identification of him as her stalker was tainted by a suggestive identification procedure and so should not have been admitted into evidence. We agree with Duncan that the Commonwealth misrepresented its DNA evidence and by so doing deprived Duncan of a fair trial, but reject his other claims of error.

RELEVANT FACTS

The Commonwealth relied on the three victims for proof that the crimes occurred. Each victim testified about encounters with a man in the neighborhood of Southern Middle School in Louisville in the fall of 2003. JM testified that on Halloween evening, while she was walking to a friend's house, a van pulled up beside her and the driver asked for directions. He then asked other questions that JM felt were inappropriate, such as her name and whether she had a boyfriend. The same man drove past her later that night as she was trick-or-treating. Soon thereafter she began to see the man parked in front of her house when she left for school in the morning. Finally, one day while she was visiting with two male friends, the same man, this time driving a white Lincoln, drove past them several times. The two boys confronted the man, asked why he was following JM, and wrote down his license number.

JH testified that one day in early November she and a friend were walking home from school when they noticed a man in a white van watching them. When the van approached them and the man began asking questions, the girls became frightened and ran home. A few days later, on November 5, 2003, JH was walking down an alley on her way home, when she again saw the white van. Moments later, a man grabbed her from behind, told her he had a gun, and warned her not to scream. JH testified that she freed herself by hitting the man with her elbow and ran home.

SM testified that on November 22, 2003, she was walking home from a friend's house when a man grabbed her from behind, pressed something hard against her back, told her he had a gun, and warned her not to scream. The man led her a short way down an alley, and then led her into a secluded area behind an abandoned house. There he ordered her to lower her pants and fondled her vagina. He then had her pull her pants up and led her through several city blocks, over a pedestrian bridge across the freeway, through an opening in a fence, and into a secluded area behind Southern Middle School. As they were walking they were approached by two people, but the man warned SM that he “would hate to have to shoot them.” When they reached the area behind the school, the man put a toboggan over SM's face and again had her lower her pants. SM testified that he fondled her, orally sodomized her, and twice tried to rape her, although he was not able to penetrate her fully. He then forced SM to kiss him while he masturbated. Finally, he had SM adjust her clothes, removed the toboggan, and told her to leave without looking back. SM told her mother what had happened, and her mother summoned the police.

A principal issue at trial was the identity of the perpetrator. The Commonwealth's proof against Duncan included photo identifications by all three victims. JH and JM positively picked Duncan's photo from a photo array as the man who had stalked them, and SM picked out Duncan's photo, but told the officers that she was not positive. The police traced the license number JM had recorded to Duncan's white Lincoln. Duncan's girlfriend in the fall of 2003 testified that she had then owned a white van, which Duncan sometimes borrowed. JM identified both vehicles, and JH identified the van. Duncan's former girlfriend also authenticated two letters Duncan had sent to her from prison. In one letter he admitted having had sex with an underage girl, but claimed the encounter was consensual, and in the other he asserted that the girls making the other charges were “lying their asses off.” Finally, the Commonwealth presented the results of DNA analyses performed on samples taken from the panties SM wore at the time of her assault. Those analyses indicated the presence of a male's DNA, ¹ and the partial profiles obtained matched, to the extent that they yielded results, the profiles obtained from Duncan.

Duncan presented a denial defense. He claimed to have had no encounters with any of the victims. He established that SM and JH, when first describing the man to the police, had guessed him to be short, in the neighborhood of five feet, eight inches tall, when in fact Duncan is over six feet tall. He elicited testimony from the forensic witnesses to the effect that the DNA analyses did not identify him as the source of the DNA found in SM's panties, but rather as one of an undetermined number of potential sources. And he testified that the letter to his former girlfriend referred not to SM but to a seventeen-year-old girl he had been seeing at the time and who, he mistakenly believed, was the source of the rape charges. As noted, although the jurors did not accept Duncan's defense, neither were they all convinced that he had committed the more serious of the crimes charged.

Duncan maintains that his trial was rendered unfair in several ways. His principal complaint concerns instances of what he characterizes as prosecutorial misconduct. He contends that he was cross-examined unfairly when the prosecutor asked him to “explain” the DNA evidence and to characterize the testimony of other witnesses as “lying” or as “wrong.” He also contends that during her closing argument one prosecutor misrepresented the DNA evidence by stating that it established that he was the source of the male DNA recovered from SM's panties. We begin with these alleged instances of prosecutorial misconduct.

ANALYSIS

I. Duncan's Trial Was Rendered Unfair by Prosecutorial Overreaching.

As Duncan correctly notes, prosecutorial misconduct can assume many forms, including improper questioning and improper closing argument. Brown v. Commonwealth, 313 S.W.3d 577 (Ky.2010); State v. Singh, 259 Conn. 693, 793 A.2d 226 (2002). If the misconduct is objected to, we will reverse on that ground if proof of the defendant's guilt was not such as to render the misconduct harmless, and if the trial court failed to cure the misconduct with a sufficient admonition to the jury. Where there was no objection, we will reverse only where the misconduct was flagrant and was such as to render the trial fundamentally unfair. Barnes v. Commonwealth, 91 S.W.3d 564 (Ky.2002); Partin v. Commonwealth, 918 S.W.2d 219 (Ky.1996).

A. During His Cross-Examination of Duncan, the Prosecutor Misrepresented Key Aspects of the Commonwealth's Evidence.

Toward the end of his lengthy cross-examination, one prosecutor asked Duncan, “Your story today is that JM was lying. JM has to be lying in order for your story to be true, right?” Defense counsel objected on the ground that JM could have testified honestly but mistakenly. Although the court did not sustain the objection, it did advise the prosecutor to “clear the matter up.” The prosecutor then asked, “For your story to be right, JM has to be wrong. Right?” He then proceeded to ask the same question with respect to SM and JH, with respect to the detectives, and with respect to the DNA evidence, i.e., “The DNA has to be wrong for your story to be true. Isn't that correct.” When Duncan protested that he did not understand the DNA evidence, the prosecutor held up the exhibit which showed the results of the DNA analysis, had Duncan acknowledge, point by point, the instances where the DNA from SM's panties was consistent with his DNA, and then asked again: “The DNA has to be wrong for your story to be right. Isn't that true?” To none of these latter...