Grigsby v. Commonwealth, 2013-CA-002068-MR

Decision Date07 August 2015
Docket NumberNO. 2013-CA-002068-MR,2013-CA-002068-MR
PartiesCHRISTOPHER GRIGSBY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
CourtKentucky Court of Appeals

NOT TO BE PUBLISHED

APPEAL FROM MARION CIRCUIT COURT

HONORABLE DAN KELLY, JUDGE

ACTION NO. 11-CR-00054

OPINION

REVERSING AND REMANDING

BEFORE: CLAYTON, JONES, AND VANMETER, JUDGES.

VANMETER, JUDGE: Christopher Grigsby was convicted of sexual abuse first degree by the Marion Circuit Court and received a five-year sentence. Grigsby appeals a number of the trial court's evidentiary rulings, including the exclusion of previous allegations of sexual abuse by the victim. Because we believe that theexclusion of those previous allegations inhibited Grigsby's constitutional right to present a meaningful defense, we reverse and remand for a new trial.

I. Factual and Procedural Background.

Grigsby was indicted by the Marion Circuit grand jury and originally charged with thirteen sex crimes1 involving his step-daughter, A.B., the daughter of Grisgby's wife, Crystal. A.B. was five years old when the charges arose. After a jury trial, Grigsby was acquitted of all charges, except one. He was convicted of sexual abuse in the first degree, as a lesser included offense of the original charge of rape in the first degree.

II. Standard of Review.

In Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000), the Kentucky Supreme Court stated, "abuse of discretion is the proper standard of review of a trial court's evidentiary rulings. The same standard applies under the Kentucky Rules of Evidence[]" (internal citations omitted). The test for abuse of discretion is "'whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.'" McDaniel v. Commonwealth, 415 S.W.3d 643, 655 (Ky. 2013) (quoting Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)).

III. Issues on Appeal.

Grigsby challenges a number of the trial court's evidentiary rulings: a) excluding the victim's testimony of other allegations involving sexual contact: b) admitting into evidence an electric blanket seized by a deputy sheriff and its semen evidence despite a gap of seventy-six days in its chain of custody; c) permitting introduction of Grigsby's DNA from the blanket without confirming the source of other unknown DNA on the blanket; and d) permitting medical opinion evidence without a proper foundation. And finally, Grigsby challenges, under palpable error review, the jury instruction used to convict him of sexual abuse first degree. We address these issues in turn, with additional facts as necessary.

A. Exclusion of Previous and Contemporary Allegations of Sexual Activity.

Grigsby filed a pretrial motion to permit testimony of A.B.'s claims that an eight-year-old, D.D., had performed sodomy on her over a year prior to the allegations involving Grigsby, and that this act had been witnessed by her six-year-old brother, M.G. In addition, Grigsby sought to introduce A.B.'s allegation of a similar act by M.G. The trial court denied the motion based on Capshaw v. Commonwealth, 253 S.W.3d 557 (Ky. App. 2007); finding that since the allegations had not been shown to be demonstrably false, they were inadmissible. Grigsby argues the trial court erred, and that since the evidence was not presented as evidence of A.B.'s character, he was denied his right to present a meaningful defense.

KRE2 412 provides:

(a) Evidence generally inadmissible. The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):
(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.
(2) Evidence offered to prove any alleged victim's sexual predisposition.
(b) Exceptions:
(1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:
(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;
(B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and
(C) any other evidence directly pertaining to the offense charged.

KRE 412 is commonly known as the "rape shield" law. In Capshaw, after analyzing earlier cases, this court held that "Kentucky's Rape Shield law applies to prior accusations to the extent that the statements are (1) true or (2) have not been proven to be demonstrably false. And, even if proved to be demonstrably false, the allegations must survive a balancing test." 253 S.W.3d at 565. In otherwords, prior accusations are admissible only if they are shown to be "demonstrably false."3 The court further stated that "'demonstrably false' is self explanatory: '[p]rior accusations are demonstrably false where the victim has admitted the falsity of the charges or they have been disproved.'" Id. (citation omitted). In this case, A.B.'s allegations have not been shown to be demonstrably false, and thus would be inadmissible under the Capshaw analysis.

Notwithstanding, Grigsby argues that in Montgomery v. Commonwealth, 320 S.W.3d 28 (Ky. 2010), the Kentucky Supreme Court effectively modified the Capshaw ruling such that "KRE 412 must be construed, as must all the rules of evidence, in a manner that does not contravene [a defendant's] constitutional right to present a meaningful defense[.]" Id. at 40. The Court expounded at length on the tension between KRE 412 and a defendant's right to present a meaningful defense:

As these cases establish, [a defendant] has a right under the federal Constitution (and the Kentucky Constitution as well) to "a meaningful opportunity to present a complete defense." Crane v. Kentucky, 476 U.S. [683,] 690, 106 S.Ct. 2142[, 90 L.Ed.2d 636 (1986)] (quoting from California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984)); Beaty v. Commonwealth, 125 S.W.3d 196 (Ky. 2003). That right, grounded in the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Section 11 of the Kentucky Constitution, includes, of course, Montgomery's right to testify on his own behalf, Rock v. Arkansas, [483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987)], and his right to cross-examine thewitnesses against him. Davis v. Alaska, [415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974)]. Indeed, "an accused's right to present his own version of events in his own words," the United States Supreme Court has explained, is "[e]ven more fundamental to a personal defense than the right of self-representation." Rock, 483 U.S. at 52, 107 S.Ct. 2704. The Supreme Court has recognized, moreover, that "a proper and important function of the constitutionally protected right of cross-examination" is "the exposure of a witness' motivation in testifying." Delaware v. Van Arsdall, 475 U.S. [673,] 678-79, 106 S.Ct. 1431[, 89 L.Ed.2d 674 (1986)] (citation and internal quotation marks omitted). These rights must be balanced, however, against both the wide latitude trial judges retain "to impose reasonable limits on cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant," id. at 679, 106 S.Ct. 1431, and the broad latitude state rule makers have "to establish rules excluding evidence from criminal trials." United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998).
In Michigan v. Lucas, 500 U.S. 145, 111 S.Ct. 1743, 114 L.Ed.2d 205 (1991), the Supreme Court addressed the need to balance these competing concerns in the context of a rape shield law. The Court reversed a decision by the Michigan Court of Appeals holding that the notice requirement in Michigan's rape shield law violated, per se, the Sixth Amendment in all cases where it was used to preclude evidence of past sexual conduct between a rape victim and a criminal defendant. Noting that the Michigan statute "represents a valid legislative determination that rape victims deserve heightened protection against surprise, harassment, and unnecessary invasions of privacy," id. at 150, 111 S.Ct. 1743, the Court asserted that the Sixth Amendment right to present relevant testimony "may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process." Id. at 149, 111 S.Ct. 1743 (quoting from Rock, 483 U.S. at 55, 107 S.Ct. 2704). In upholding the rape shield law's notice provision, the Court emphasizedthat any restrictions on a criminal defendant's right to confront witnesses and to present relevant evidence, "'may not be arbitrary or disproportionate to the purposes they are designed to serve.'" Id. at 151, 111 S.Ct. 1743 (quoting from Rock, 483 U.S. at 56, 107 S.Ct. 2704).
In the wake of Lucas and Rock, numerous courts have held that with those cases the Supreme Court established a balancing test for evaluating, on a case-by-case basis, Confrontation Clause and other Sixth Amendment challenges premised upon the exclusion of evidence. Under that test, courts must "determine whether the rule relied upon for the exclusion of evidence is 'arbitrary or disproportionate' to the 'State's legitimate interests.'" Barbe v. McBride, 521 F.3d 443, 457 (4th Cir. 2008) (quoting from Quinn v. Haynes, 234 F.3d 837, 849 (4th Cir. 2000) and discussing what the Fourth Circuit has referred to as the "Rock-Lucas principle"). See also, e.g., United States v. Pumpkin Seed, 572 F.3d 552 (8th Cir. 2009); Ferensic v. Birkett, 501 F.3d 469 (6th Cir. 2007); White v. Coplan, 399 F.3d 18 (1st Cir. 2005); LaJoie v. Thompson, 217 F.3d 663 (9th Cir. 2000). The Supreme Court itself has applied this standard in Holmes v. South Carolina, [547 U.S. 319, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006)] and United States v. Scheffer, supra.
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