Gartley v. Commonwealth
| Decision Date | 28 September 2012 |
| Docket Number | NO. 2010-CA-001039-MR,2010-CA-001039-MR |
| Parties | BEMON GARTLEY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM MCCRACKEN CIRCUIT COURT
Appellant Bemon Gartley appeals the judgment of the McCracken Circuit Court convicting him of first-degree sexual abuse of a victim under twelve years of age and sentencing him to ten years' imprisonment. On appeal, Gartley alleges numerous trial errors which he claims mandate a new trial. Because we do not find his arguments persuasive, we affirm.
On February 27, 2009, the McCracken County grand jury returned an indictment charging Gartley with first-degree sexual abuse. The charge stemmed from an allegation by Gartley's then six-year-old granddaughter, C.H., that between October 31, 2008, and November 27, 2008, Gartley subjected C.H. to inappropriate sexual contact. The grand jury subsequently issued a superseding indictment also charging Gartley with first-degree sodomy.
Because the evidence against Gartley would consist largely of C.H.'s testimony, the circuit court held a pretrial competency hearing to determine if C.H. was competent to testify. After questioning C.H., the circuit court determined that she was competent to testify pursuant to Kentucky Rules of Evidence (KRE) 601(b).
The circuit court also held a hearing on Gartley's motion to suppress statements he made on the grounds that he made them while in law enforcement custody and prior to being Mirandized.1 The circuit court denied Gartley's motion.
Thereafter, the circuit court conducted a hearing to address two other motions - the Commonwealth's motion to permit C.H. to testify outside the courtroom and Gartley's motion to exclude KRE 404(b) evidence. The circuit court granted the former and denied the latter.
Gartley's trial took place on March 15, 2010. C.H. testified in the circuit judge's chambers, outside the presence of the jurors who watched hertestimony on closed circuit television. C.H. testified that she was seven years old and told the court her birth date. She then testified that "her mom's dad" had touched her private areas. C.H. described "private areas" as where "you pee from" and where "you poop from." C.H. explained that Gartley touched her when she was at his apartment and her mom was at work. C.H.'s older brother and younger sister were also there and, while C.H. could not remember what time this happened, she did recall it was nighttime.
Throughout her testimony, C.H. frequently struggled to respond to the Commonwealth's more personal questions, often answering while she rested her head on her arm that lay across the table. At one point, the prosecutor drew a picture of a person and asked C.H. to point to where Gartley touched her; C.H. pointed to the area between the drawing's legs; when asked by the Commonwealth, she drew a circle around the area she indicated. The Commonwealth then drew another picture of a person and asked C.H. to circle what Gartley used to touch her between her legs; C.H. circled Gartley's hands. C.H. then enlarged the drawing's mouth and explained that Gartley had also touched her with his tongue. C.H. clarified that Gartley touched her on the outside of her front private area with his fingers and tongue, she was lying down on the couch when it happened, and her clothes were down near her feet. She did not recall making an additional statement to Mary Foley, a forensic examiner, that Gartley's finger also went inside her front private area. C.H. also remembered being examined by a doctor, but did not recall telling the doctor that Gartley had penetrated her with his finger. C.H. did notrecall how long Gartley touched her, nor did she remember when the incident occurred, but did say she thought it was a year ago. She could remember she was watching television, but could not remember what program she was watching.
C.H.'s mother testified that, on a subsequent Sunday afternoon in 2008, C.H. did not want to go to Gartley's residence for him to babysit her. Mother explained that C.H. became upset and refused to go to Gartley's apartment. Eventually, C.H. revealed to Mother what Gartley had done to her. Mother then spoke to Gartley and, though Gartley initially denied the allegations, he later stated that if C.H. said he did it, then he did it. He said he was not going to call C.H. a liar, and he may have been drunk or under the influence of pills which was why he could not remember anything. Mother promptly took C.H. to the emergency room.
At the emergency room, Dr. Tariq Sayyad conducted a visual examination of C.H.'s genitalia and did not discover bruising, cuts, or other evidence of trauma. However, Dr. Sayyad recommended C.H. visit a pediatric gynecologist to receive a more thorough examination.
Pediatrician Kimberly Burch then examined C.H. When Dr. Burch took C.H.'s medical history, C.H. told her she was touched in the front and that it hurt. Additionally, during the examination, Dr. Burch used a colposcope to examine the cells of C.H.'s cervix and vagina allowing direct observation and study of the living tissue. Dr. Burch discovered a labial adhesion with "an abnormal insertion," and a rectal fissure. Dr. Burch explained that these findings were consistent with C.H.'s history, but were not definite evidence of sexual abuse,since the injuries could have been caused by diaper rash, irritation from wiping, localized infection, birth defect, or trauma. Dr. Burch also testified that, while she did not find evidence of bruising, bleeding, tears, or scars, she would not expect to find evidence of these injuries one year after the alleged incident occurred. Dr. Burch further testified that her ultimate finding was a normal exam with the aforementioned anomalies, and that C.H. was a talkative, happy, and healthy child.
Mary Foley, a forensic examiner with the Purchase Area Sexual Assault Center, testified that she interviewed C.H. on January 8, 2009, and again on November 25, 2009, regarding Gartley's alleged conduct. During the January 2009 interview, C.H. told Foley that she was watching a cartoon, "Sponge Bob Square Pants," when the incident occurred. Additionally, during the November 2009 interview, C.H. told Foley that Gartley touched her in her vaginal area with his finger, that his finger went inside but not all the way inside, and that it hurt. Foley clarified that, during the January interview, C.H. told her Gartley did not use any other body parts to touch her private areas; however, during the November interview, C.H. told her Gartley also touched her private area with his tongue.
Gartley did not testify. However, Detective Troy Turner with the Paducah Police Department recounted an interview he conducted with Gartley prior to his arrest on January 9, 2009. When asked about Gartley's initial response to C.H.'s allegations, Detective Turner testified that Gartley stated he did not remember touching C.H. because he was in a blackout state. Gartley told Detective Turner that he had consumed a pint of rum and taken approximately fiveLoratab pills prior to the children's arrival. Detective Turner also repeated Gartley's statement that, "if someone is in bed with me, I have a tendency to move my hands around."
Detective Turner went on to recount Gartley's description of similar occurrences when he touched someone in bed. The detective testified that Gartley stated that, while in Chicago, he was "high" and he woke up with his hands on his fourteen-year-old niece's thighs. According to the detective, Gartley also said his wife or girlfriend had told him that when he slept with her after consuming drugs or alcohol he would engage in behavior similar to that C.H. alleged, though he had no personal recollection of it. Further, Gartley admitted that, on two occasions, he passed out near male friends and woke up groping their genitals. Finally, Detective Turner testified that, when he asked Gartley about the particular incident involving C.H., Gartley said, "C.H. would not lie on me."
The jury found Gartley guilty of first-degree sexual abuse, but not guilty of first-degree sodomy. The jury recommended a sentence of ten years and on May 13, 2010, the circuit court sentenced Gartley consistent with that recommendation. This appeal followed. As additional facts become relevant, they will be discussed.
Gartley presents five arguments. First he argues the circuit court abused its discretion in finding C.H. competent to testify at trial. Second, that the court erred in finding that a "compelling need" existed for C.H. to testify outside the courtroom. Third, that the circuit court improperly admitted evidence pursuant toKRE 404(b). Fourth, that the circuit court erred in overruling Gartley's motion to suppress evidence. Fifth, that the circuit court erred in denying his directed verdict motion. We are unpersuaded by these arguments.
Gartley asserts C.H. was incompetent to testify because she was unable to sufficiently recall and narrate facts as required by KRE 601(b). As a result, Gartley argues, the Commonwealth's use of an incompetent witness violated his right to confront and cross-examine the witness against him guaranteed by §11 of the Kentucky Constitution and the Sixth Amendment to the United States Constitution, mandating reversal for a new trial. We disagree.
KRE 601 governs witness competency. It provides that "[e]very person is competent" to testify unless the trial court finds he or she: "(1) lacked the capacity to perceive accurately the matters about which he proposes to testify; (2) lacks the capacity to recollect facts; (3) lacks the capacity to express himself so as to be understood, either directly or through an interpreter; or (4) lacks the capacity to understand...
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