Edmonds v. Com., No. 2004-SC-1003-MR.

• Decision Date: 20 April 2006
• Docket Number: No. 2004-SC-1003-MR.
• Citation: 189 S.W.3d 558
• Parties: Todd Edward EDMONDS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

189 S.W.3d 558

Todd Edward EDMONDS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2004-SC-1003-MR.

Supreme Court of Kentucky.

April 20, 2006.

COPYRIGHT MATERIAL OMITTED

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Shannon Dupree, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Counsel for Appellant.

Gregory D. Stumbo, Attorney General, Bryan D. Morrow, Office of the Attorney General, Frankfort, Counsel for Appellee.

COOPER, Justice.

Pursuant to RCr 8.08, 8.09, and North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), Appellant, Todd Edward Edmonds, pled guilty in the Jefferson Circuit Court to two counts of rape in the first-degree, KRS 510.040(1)(a), two counts of sodomy in the first-degree, KRS 510.070(1)(a), two counts of burglary in the first-degree, KRS 511.020, one count of kidnapping, KRS 509.040, one count of robbery in the first-degree, KRS 515.020, one count of unlawful imprisonment, KRS 509.020, two counts of wanton endangerment, KRS 508.060, one count of failure to notify the Division of Probation and Parole of a change of address, KRS 17.510, and to being a persistent felony offender in the first degree, KRS 532.080(3). Under the plea agreement, the sentence for each count was enhanced to twenty years because of the persistent felony offender status, and all sentences were to run concurrently for a total of twenty years.

He now appeals the final judgment entered pursuant to his guilty plea as a matter of right, Ky. Const. § 110(2)(b), charging the trial court with reversible error for overruling (1) his motion to sever the counts with respect to each victim; (2) his motion to continue his jury trial indefinitely pending completion of his treatment for hepatitis-C; and (3) his motion to withdraw his guilty plea prior to sentencing on the basis that it was not voluntary and intelligent. Finding no error, we affirm.

I. FACTS.

Appellant was indicted on October 15, 2001, based on alleged offenses against two women. The factual bases underlying all counts to which Appellant pled guilty are as follows. On June 4, 2001, the first victim, D.P., reported to Jefferson County police that a man she identified as Appellant persuaded her to invite him into her home, at which point he tied her to her bed and forcibly raped and sodomized her, then remained in her home throughout the evening. On August 21, 2001, the second victim, D.M., reported to Jefferson County police that a man she identified as Appellant persuaded her to invite him into her home, at which point he bound her and forcibly raped and sodomized her. He then briefly tied D.M. to a clothes rack, then untied her and forced her at knife-point to drive him to an A.T.M. (automatic teller machine) and withdraw $300 from her bank account. After he took this money, he forced her to drive him to a different location, at which point he exited her vehicle.

On both occasions, Appellant allegedly committed the sexual offenses without using prophylactics despite knowledge that he was infected with hepatitis-C, a communicable disease.¹ The Commonwealth stated that it would present evidence from the rape kits of both victims to show that DNA evidence from each crime scene matched Appellant's DNA. At the time of both offenses, Appellant was a convicted felon and sex offender, and he had not registered the address of his residence as required by KRS 17.510.

After several delays and a change of defense counsel, a jury trial was scheduled for February 23, 2004. Prior to trial, the Commonwealth offered Appellant a plea agreement under which he would enter a conditional Alford plea to all counts and would be sentenced to twenty years in prison. On the morning of trial, after the trial court ruled on twenty-three pro se motions filed by Appellant the previous day, Appellant accepted the Commonwealth's plea offer, maintaining his innocence but pleading guilty and reserving the right to appeal all adverse rulings.

II. SEVERANCE.

Appellant moved the trial court to sever all counts in the indictment relating to the two different victims on grounds that the two alleged offenses occurred eleven weeks apart and that the evidence of both offenses together would have a cumulative effect that would amount to undue prejudice.² The Commonwealth responded that no unfair prejudice would result and further explained that the "prejudicial" evidence regarding the separate offenses would be introduced into each trial under KRE 404(b) even if Appellant's motion to sever was granted, thus the joinder of offenses was not prejudicial. After hearing argument from both sides, the trial court overruled the motion. We review a trial court's ruling on a motion to sever for an abuse of discretion. Foster v. Commonwealth, 827 S.W.2d 670, 679-80 (Ky.1991); Boggs v. Commonwealth, 424 S.W.2d 806, 808 (Ky.1966); Smith v. Commonwealth, 375 S.W.2d 819, 820 (Ky. 1964).

Criminal Rule (RCr) 9.16 states that a trial court shall order separate trials for counts in an indictment "[i]f it appears that a defendant . . . will be prejudiced by a joinder of offenses." A criminal defendant is entitled to a severance only upon a showing, prior to trial, that joinder would be unduly prejudicial. Humphrey v. Commonwealth, 836 S.W.2d 865, 868 (Ky.1992); Ware v. Commonwealth, 537 S.W.2d 174, 176-77 (Ky.1976); Edwards v. Commonwealth, 500 S.W.2d 396, 397-98 (Ky.1973). "A significant factor in identifying such prejudice is the extent to which evidence of one offense would be admissible in a trial of the other offense." Rearick v. Commonwealth, 858 S.W.2d 185, 187 (Ky. 1993); see also Spencer v. Commonwealth, 554 S.W.2d 355, 357 (Ky. 1977).

The Commonwealth correctly noted that any potentially prejudicial evidence of the acts committed against the separate victims would be admissible in each prosecution, if severed, under KRE 404(b). Kentucky Rule of Evidence 404(b) states that evidence of other crimes, wrongs, or acts committed by a defendant is admissible to prove, inter alia, the intent or identity of the perpetrator. Noel v. Commonwealth, 76 S.W.3d 923, 931 (Ky.2002); Funk v. Commonwealth, 842 S.W.2d 476, 481 (Ky.1992). Evidence of other bad acts to prove intent or identity by modus operandi must generally be so similar as to constitute a "signature crime." See Commonwealth v. Maddox, 955 S.W.2d 718, 722 (Ky.1997); Rearick, 858 S.W.2d at 187-88. However, "a number of common features of lesser uniqueness, although insufficient to generate a strong inference of identity if considered separately, may be of significant probative value when considered together." United States v. Myers, 550 F.2d 1036, 1045 (5th Cir.1977); see also Dickerson v. Commonwealth, 174 S.W.3d 451, 468-71 (Ky.2005).

Whether Appellant's defense to the charges was identity (i.e., that someone else committed the alleged offenses) or intent (i.e., the intercourse was consensual), evidence of the acts committed against each victim would be admissible in a separate trial for the offenses committed against the other. The facts of each offense in the case sub judice are strikingly similar: Appellant, who identified himself to each victim as "Todd," approached each victim outside her home and elicited an invitation into her home through the guile of his feigned friendship; once inside, with the victim's back turned, Appellant attacked. Appellant bound each victim with articles of her own clothing; Appellant first vaginally raped, then anally sodomized each victim; Appellant threatened the life of each victim if she reported the crime to the police; and each victim described similar tattoos on her assailant and identified Appellant from a police photopack following the attack. "[I]t is not the commonality of the crimes but the commonality of the facts constituting the crimes that demonstrates a modus operandi." Dickerson v. Commonwealth, 174 S.W.3d at 469. The commonality of the facts of the offenses committed against each victim, though not exceedingly unique when considered independently, "indicate a reasonable probability that the crimes were committed by the same person." Lear v. Commonwealth, 884 S.W.2d 657, 659 (Ky. 1994).

Our courts have held comparable evidence admissible under KRE 404(b). See, e.g., Furnish v. Commonwealth, 95 S.W.3d 34, 47 (Ky.2002) (evidence of previous burglary where employment as carpet cleaner provided guise for entry into home held admissible in murder prosecution where entry into victim's home allegedly achieved through same); Violett v. Commonwealth, 907 S.W.2d 773, 775-76 (Ky.1995) (denying severance) ("He began improperly touching the daughter when she was eleven years old and he improperly touched the stepdaughter when she was twelve years old. In both situations, the touching escalated into improper sexual rubbing of the victims' bodies and digital penetration. Both victims testified that he ultimately raped them. The method of gaining access to both children was very similar. Each victim was a member of the household at the time the misconduct occurred. The defendant would get each child alone in the bedroom, or gain access to the victims by approaching them in the bathroom when they were getting ready or taking a shower. He also warned each victim not to tell anyone about the incidents."); Berry v. Commonwealth, 84 S.W.3d 82, 88 (Ky.App.2001) (denying severance) ("[T]he earliest offense charged in the 1998 indictment occurred in December 1977, and the latest offense in that indictment occurred in 1980. The ten counts in the 1998 indictment were committed on five different victims. The 2000 indictment charged that Berry committed the same criminal act as in the first indictment—third-degree sodomy—on another victim in 1982, and again in 1986. In every instance, the crime involved a boy under the age of sixteen who was participating in Micro City Government. All twelve instances of third-degree sodomy occurred in Berry's home while he was there alone with each boy.") (...