Hunter v. Commonwealth
| Decision Date | 20 August 2020 |
| Docket Number | 2019-SC-000165-MR |
| Parties | SAMUEL HUNTER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | United States State Supreme Court — District of Kentucky |
IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.
NOT TO BE PUBLISHED
ON APPEAL FROM MCCRACKEN CIRCUIT COURT
MEMORANDUM OPINION OF THE COURT
Samuel D. Hunter was convicted by a McCracken County jury of rape in the first degree, victim under twelve years of age,1 and sentenced to life imprisonment. He appeals to this Court as a matter of right, Ky. Const. § 110(2)(b). Hunter raises five allegations of error on appeal, asserting 1) the trial court should have granted his motion for a directed verdict, 2) two of the Commonwealth's witnesses improperly bolstered the victim's testimony, 3) prosecutorial misconduct denied him a fair trial, 4) the trial court improperlydenied him the ability to present an alternate perpetrator defense, and 5) cumulative error. Following a careful review, we affirm.
In 2016, seven-year-old Stacy2 lived with her father, stepmother, and grandmother. After school on Friday, May 27, 2016, Stacy went to stay with her biological mother for the weekend. Hunter lived in the same trailer as Stacy's biological mother and the mother's live-in boyfriend. Stacy came home early from the visit on Saturday. Stacy subsequently began complaining of itching and burning with urination. Her step-mother examined her and noticed Stacy's underwear was caked with mucus. Her step-mother collected the underwear, placed them in a zippered plastic bag, and stored them in the refrigerator.
On Thursday, June 2, 2016, Stacy went to the Pediatric Group of Paducah for an office visit where vaginal discharge and a rash were observed, and her mucus-caked underwear was presented for medical professionals to see. Lab testing was ordered, and on June 6, 2016, Stacy was diagnosed with gonorrhea. After Stacy told her pediatrician, Dr. Elizabeth McGregor, someone had touched her private area and identified the perpetrator as Hunter, the doctor contacted social services who in turn sought police intervention. Topical creams were applied, and an injection of antibiotics was administered to treat Stacy's infection.
McCracken County Sheriff's Detective Sarah Martin spoke with Stacy, her father, and stepmother on June 6, 2016. Two days later, Stacy underwent a forensic interview at the Purchase Area Sexual Assault and Child Advocacy Center ("PASAC"). Stacy informed the interviewer what happened, where it happened, and who hurt her, claiming Hunter had hurt her "pee spot." Stacy was interviewed a second time at PASAC a couple of months later and provided the same information to the interviewer, including the name of her abuser as being Hunter. Testing on Stacy's underwear revealed the presence of DNA from a source other than Stacy, but an insufficient quantity existed to make any match. Presumptive human blood and saliva were also found during testing but again, no match could be made.
Detective Martin interviewed numerous individuals during her investigation. When questioned, Hunter denied any sexual contact with Stacy but admitted he saw the girl on the night the rape occurred. He speculated a former girlfriend was trying to frame him. Hunter consented to undergo a rape test kit. He subsequently tested positive for gonorrhea. Hunter was arrested and indicted for raping Stacy.
A three-day jury trial was convened on December 18, 2018. Evidence presented included the facts previously stated, albeit in significantly greater detail. Additional, conflicting evidence was likewise adduced. Pertinent to this appeal, Stacy's pediatrician and the forensic interviewer were permitted to testify Stacy spoke to them about the assault and provided them the name of the assailant; the trial court did not permit either witness to specify theindividual Stacy identified. Hunter presented an alternative perpetrator defense, asserting a friend of the step-mother or a co-worker of the father had committed the rape; he was prohibited from introducing copies of the uniform citation of a charge against one of the men or certified copies of the criminal conviction of either man. Hunter's motions for directed verdict, wherein he asserted the Commonwealth had presented insufficient evidence of penetration, were denied. The jury returned a guilty verdict and recommended a sentence of life imprisonment. This appeal followed.
Hunter asserts five errors exist warranting reversal of his conviction and sentence. He first contends the trial court should have granted his motion for a directed verdict. Next, Hunter asserts Dr. McGregor and the PASAC interviewer were improperly permitted to bolster Stacy's testimony. Third, Hunter argues the prosecutor repeatedly made improper comments and engaged in a pattern of misconduct sufficient to deny him a fair trial. Fourth, he contends the trial court's refusal to permit him to introduce certain documents related to alternate perpetrators improperly denied him the ability to present a complete defense. Finally, Hunter presents a cumulative error claim. Conceding his second and third arguments are unpreserved for appellate review, Hunter requests palpable error review under RCr3 10.26. A palpable error occurs if a defendant's substantial rights were affected and a manifest injustice occurred. Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky.2006). Only if an error is "shocking or jurisprudentially intolerable," id. at 4, will it be deemed palpable. Justice Cunningham, in his concurring opinion in Alford v. Commonwealth, 338 S.W.3d 240, 251 (Ky. 2011), once described the threshold for palpable error: "It should be so egregious that it jumps off the page . . . and cries out for relief."
For his first allegation of error, Hunter contends the trial court improperly denied his motions for a directed verdict of acquittal because the prosecution's timeline does not fit with the incubation period of gonorrhea. However, as noted by the Commonwealth, this argument was not presented to the trial court for consideration. Rather, Hunter's motions for directed verdict below challenged only the sufficiency of the Commonwealth's proof regarding penetration. Although testimony was elicited during trial regarding the incubation period of gonorrhea being two to seven days, absolutely no mention of such timeline was made during any of the three times Hunter made and renewed his motions for directed verdict.
It is axiomatic "[o]ur jurisprudence will not permit an appellant to feed one kettle of fish to the trial judge and another to the appellate court." Owens v. Commonwealth, 512 S.W.3d 1, 15 (Ky. App. 2017) (citing Elery v. Commonwealth, 368 S.W.3d 78, 97 (Ky. 2012) (citing Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976)). "It goes without saying that errors to be considered for appellate review must be precisely preserved and identified in the lower court." Elwell v. Stone, 799 S.W.2d 46, 48 (Ky. App. 1990) (citation omitted). Contrary to Hunter's assertion, his argument is notthe type of "more focused and specific version" of an argument permitted in Buster v. Commonwealth, 364 S.W.3d 157, 162 (Ky. 2012), it is a completely new and separate theory of error. Acknowledging the probability the error is, in fact, unpreserved for appellate review, in his reply brief Hunter requested palpable error review. The record clearly reveals this is the only review available to Hunter on this issue.
In ruling on a motion for directed verdict, the trial court takes as true all evidence favoring the Commonwealth and all reasonable inferences which can be drawn from such evidence. It is not at liberty to determine the weight or credibility to be given to the evidence, that function being reserved for the jury. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). On review of a trial court's decision, we are tasked with determining whether, "if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal." Lamb v. Commonwealth, 510 S.W.3d 316, 325 (Ky. 2017). Convictions must be based on more than a mere "scintilla of evidence," Benham, 816 S.W.2d at 187-88, as "there must be evidence of substance." Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky. 1983).
The trial court utilized the appropriate standard in ruling on Hunter's motions for directed verdict and analyzed the evidence in the light most favorable to the Commonwealth. Hunter and Stacy were present in the same mobile home on the weekend of May 27, 2016; Stacy's mother's live-in boyfriend testified he was awakened on the night of May 27 by a child's screamand her mother told him the next day someone had "touched" Stacy; Stacy and Hunter both tested positive for gonorrhea, a disease which testimony revealed can only be transmitted by secretions during sexual contact; and Stacy named Hunter as her assailant who "hurt her pee spot." Based on these facts alone, a reasonable juror could conclude Hunter was guilty of the rape. Clearly, other evidence was introduced indicative of guilt and other evidence regarding Hunter's innocence. However, substantial evidence of guilt existed and we cannot say such a finding would have...
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