Holbrook v. Com.
| Decision Date | 13 January 1984 |
| Citation | 662 S.W.2d 484 |
| Parties | Ernest C. HOLBROOK, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | Kentucky Court of Appeals |
Thomas W. Miller, Miller, Griffin & Marks, Lexington, for appellant.
Steven L. Beshear, Atty. Gen., Suzanne Guss, Asst. Atty. Gen., Frankfort, for appellee.
Before DUNN, HOWARD and McDONALD, JJ.
This is an appeal from a final judgment of the Fayette Circuit Court, wherein appellant was sentenced to a period of probation of five years after a jury returned a verdict that he was guilty of the crime of use of a minor in a sexual performance, as prohibited by K.R.S. 531.310, and fixed his sentence at one and one-half years in the penitentiary.
The facts of this case are as follows. Appellant met Carlos Diaz, a minor born May 13, 1964, during a trip to Puerto Rico. On March 28, 1981, Diaz returned with appellant to Lexington, Kentucky. In May of 1981, Diaz and appellant moved into a two-bedroom apartment where they shared a master bedroom and engaged in a continuing homosexual relationship.
Mike McCormick, a subsequent witness for the prosecution at the trial of this case who had known appellant for 28 years and who had accompanied appellant to Puerto Rico in March of 1981, was given a video tape by appellant in July of 1981 with the request that he destroy it. Upon viewing the video tape several months later, McCormick discovered that it showed the appellant and Diaz engaging in sexual activities. McCormick recognized the scene of the activities as the master bedroom at the apartment where appellant and Diaz resided. He eventually turned the tape over to Detective Al Borne of the Lexington Police Department.
On August 9, 1982, appellant was indicted by the Fayette County Grand Jury with the offense mentioned above, and his trial began on October 13, 1982, culminating in the sentencing and probation.
Appellant argues on appeal two grounds for reversal: first, that the trial court abused its discretion in limiting defense counsel's voir dire and in failing to exclude jurors Critchfield, Wilkinson, and Givens; and, second, that the prosecution introduced insufficient evidence that appellant "employed, consented to, authorized, or induced" Diaz to engage in a sexual performance.
With regard to the first issue, appellant argues that the trial court erred in refusing to permit defense counsel to continue with the line of questioning he was utilizing at the voir dire proceeding, and specifically that the trial court was clearly erroneous in refusing to exclude for cause the aforementioned three jurors.
Defense counsel attempted to ask each individual juror a hypothetical question in an attempt to determine whether that juror had any prejudice toward homosexuality which would prevent her from rendering an impartial verdict. The purpose of the question was to isolate those jurors who would convict the defendant solely on the basis of the homosexual acts he had engaged in without regard to whether he had induced, used, or consented to the use of a minor in a sexual performance. One juror, Mrs. Critchfield, stated:
Mrs. Critchfield: I definitely think it's sinful but no more sinful than adultery, fornication, or anything like that. But if it is minors, I wouldn't have any qualms about finding 'em guilty.
Further testimony of this juror in response to questions posed by defense counsel was as follows:
Mr. Miller: ... Now, the evidence will be, Mrs. Critchfield, as I think the prosecutor has alluded to and the Judge has told you, the evidence the prosecutor anticipates proving is that there was homosexual activity in a movie and there was a minor involved in the movie. Now, if just those two details are known to you, if they prove just those two details, did you say that you would not have any trouble convicting him?
Mrs. Critchfield: I would not have as long as--as long as it was a minor. If it's two consenting adults, I definitely think it's wrong but that's their affair.
* * *
Mr. Miller: Mrs. Critchfield, if the only proof you had ... that Dr. Holbrook had engaged in a movie in sexual activity and it had been proven to you ... that ... the other male in the movie was a minor ... would you tend to convict Dr. Holbrook? Now, that's without knowing what the law of the case is.
Mrs. Critchfield: Do you mean the movie will be about him?
Mr. Miller: I believe that the ... Commonwealth Attorney will try to prove that; otherwise, we wouldn't be here in court today.
Mrs. Critchfield: If it was a minor in the case, I would have to find him guilty of it.
In response to questions from the court and from defense counsel as to whether she would be able to decide the case on the basis of the law and not on the basis of her personal views on homosexual activities, this juror responded, "I believe so," and
Defense counsel posed to another juror, Mrs. Wilkinson, a similar question Mr. Miller: Mrs. Wilkinson, the Judge has explained to you that there will be possibly more in his instructions than just your having to find that Dr. Holbrook was involved in homosexual activity or sexual activity with a person in a movie and that person was a minor under eighteen years of age. What my question is is regardless of what he instructs you, if you're convinced that Dr. Holbrook was involved in homosexual activity and you're convinced that the person he was involved in that activity with in the movie was less than eighteen years of age, knowing only those two facts, would you tend to convict him regardless of what the law was?
Mrs. Wilkinson: Yes, if I knew that, just what you finished saying. Yes, I would.
Later questioning from the court elicited the following statements from this juror:
The Court: Will you follow the law?
Mrs. Wilkinson: I will follow the law.
The Court: Whatever the law may happen to be, without regard for your personal views?
Mrs. Wilkinson: Yes.
Mrs. Givens, the third juror, likewise indicated that she believed she could retire to the jury room and decide the case solely on the law without regard to her personal beliefs.
Appellant argues, citing the Sixth Circuit Court of Appeals case of United States v. Blanton, 700 F.2d 298 (6th Cir.1983), that the impairment of the peremptory strike is reversible error. Blanton concerned the effect of massive pretrial publicity upon the...
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