Jenkins v. Com.
| Decision Date | 22 April 2010 |
| Docket Number | No. 2007-SC-000248-DG.,2007-SC-000248-DG. |
| Citation | 308 SW 3d 704 |
| Parties | John Tim JENKINS, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
J. Guthrie True, Samuel Ryan Newcomb, Johnson, True & Guarnieri, LLP, Frankfort, KY, Counsel for Appellant.
Jack Conway, Attorney General, David Wayne Barr, Assistant Attorney General, Office of Attorney General, Office of Criminal Appeals, Frankfort, KY, Counsel for Appellee.
Through this appeal, we recognize the admissibility of expert testimony regarding suggestive interviewing techniques which can affect the reliability or accuracy of a child witness's memory or recall. Consequently, because significant evidence of improper methods existed in this case, the trial court erred in denying the defense's request to call an expert witness on the subject. Therefore, we reverse the conviction and remand for a new trial consistent with this opinion.
In 2001, Appellant, John Tim Jenkins, a married father of three, became a volunteer with the Central Kentucky Big Brothers program. At the time, Jenkins was the Engineering Manager at the Osram Sylvania plant in Versailles, Kentucky. Jenkins testified that he had been a Big Brother, and his wife a Big Sister, many years earlier (before they had their own children), and had enjoyed it. Jenkins testified that with his son leaving for college, and his wife and two teenage daughters involved in dance (and not interested in going to ballgames), he decided to get involved with Big Brothers again.
Jenkins completed the extensive Big Brothers application and screening process, and was matched with a "little brother," J.S., then six years old, in September, 2001. J.S.'s parents were divorced. J.S. lived with his mother in Woodford County, Kentucky, during the school year, and spent summers with his father in Georgia. As his Big Brother, Jenkins would do various activities with J.S., including taking him to ballgames, bike riding, swimming, and to the movies. J.S. would also occasionally eat dinner at the Jenkins' home with Jenkins and his wife and family. As part of Big Brothers' standard procedure, periodic reviews were conducted with J.S. and his mother, concerning the match with Jenkins. Neither J.S. nor his mother ever expressed any concerns. In the reviews, the mother reported that J.S. talked about Jenkins a lot and looked forward to their activities together, that J.S. had fun with Jenkins, and that J.S. would be happy and excited after returning from his activities with Jenkins. Jenkins had been J.S.'s Big Brother for two years, with no concerns.
The questionable events giving rise to this case began after work on October 8, 2003, when Jenkins took J.S., then eight years old, and his friend B.F., then six years old, on a planned swimming outing at the Falling Springs Arts and Recreation Center in Versailles, Kentucky. Jenkins and the boys arrived at approximately 7:15 p.m. Jenkins and the boys first swam in the smaller pool (the Center has two pools). Brittany King and Megan Davenport, two lifeguards on duty, became suspicious of the way Jenkins was playing with the boys, in that he was swimming up under them and lifting them up out of the water. King also thought it looked like Jenkins was "nibbling on their thighs." King asked her supervisor, Greg Shanks, to observe. Shanks watched Jenkins and the boys, and saw nothing of concern.
Nevertheless, King and Davenport continued to watch the three attentively. After the three went to the big pool, King and Davenport again observed Jenkins swimming up under the boys and lifting them out of the water. They also thought Jenkins was kissing the boys on their faces and legs. While the three were playing in the pool, there was another family in the pool, the swim team and dive team were also practicing, and people were watching from the bleachers. No one else expressed any concern about Jenkins and the boys.
King and Davenport also expressed their concerns to the head lifeguard, Roger Maybrier. Maybrier looked in on Jenkins and the boys in the pool. He recognized that the three were playing a game of "shark" or "alligator," where one person pretends to be the shark or alligator, and the others try to swim across the pool without getting "eaten." Maybrier was not concerned.
When the three were finished swimming, Shanks followed them into the locker room. Jenkins and J.S. were using the shower in the handicapped shower stall, and B.F. was in the adjoining shower stall. The shower curtain was not completely drawn, so Shanks looked into the shower. He could see that Jenkins and J.S. were naked. Shanks did not see any physical contact between the two. Shanks went to get Maybrier, and when the two came back, B.F. had joined Jenkins and J.S. in the handicapped shower. Again, the curtain was not all the way closed, and both looked in. J.S. was sitting on the floor of the shower, B.F. was on one side of the shower, and Jenkins was on the other side. They looked into the stall several times but never saw any physical contact between Jenkins and either boy. Maybrier and Shanks decided to let Jenkins know someone was in there, by being loud and opening and closing lockers.
When the water stopped, B.F. came out of the shower first. Shanks asked who he came with. B.F. said Jenkins was "Big Brother Big Sister." Shanks asked B.F. if he was having a good time, and he said he was. Because Jenkins was not a relative, Shanks and Maybrier suspected that something "fishy" was going on, and called the police.
Police officers arrived at the pool at approximately 8 p.m., and immediately separated Jenkins from the boys. Six-year-old B.F. was driven home in a police car and turned over to his mother. Eight-year-old J.S. was taken in a police car to the Versailles Police Department. Detective Rick Quails was on call, and arrived at the Versailles police station at approximately 10:30 p.m. When Quails arrived, J.S., scared and crying, was sitting in the break room. Because the break room was noisy, Quails decided to have J.S. transported to the Woodford County police station, where it would be quieter. J.S. was again taken in a police car, to the Woodford County police station, arriving at about 11:00 p.m. J.S. was scared and wanted his mother. A social worker and J.S.'s mother arrived shortly thereafter. Quails informed the mother that he was concerned J.S. may have been sexually abused because of the lifeguards' suspicions, and because Jenkins had been reported nude in the shower with J.S. Quails basically testified that he thought he knew what happened but that he needed to hear it from J.S.
Detective Quails was not specialized in interviewing children. Quails began interviewing eight-year-old J.S. around midnight. His mother was not allowed to be present during the interview. For the first half-hour, J.S. denied that Jenkins had done anything sexually inappropriate.1 Quails would not accept J.S.'s denials, and would not let him go home. After unrelenting and suggestive questioning, J.S., who had been to school that day and was very tired, finally agreed with Quails' suggestion that he had been touched once.2 Quails ended the interview around 1:30-2:00 a.m. and released J.S. to his mother. Much of the interview was tape recorded. The next morning, Quails and the social worker visited J.S. at his home for a second interview, which was tape recorded as well. J.S. agreed with Quails' suggestion that there was a second touching. On January 7, 2004, a four-count indictment was returned against Jenkins.3 The indictment charged two counts of first-degree sexual abuse of J.S., and two counts of indecent exposure for showering in the nude in the presence of J.S. and B.F.
Following the allegations of October 8, 2003, J.S. was put into sex abuse therapy. J.S. saw a therapist at least once a week, and attended group therapy as well. On March 1, 2004, J.S. was taken to the Children's Advocacy Center, where he was interviewed by a forensic interviewer. Based on statements elicited in this interview, a second indictment was returned charging Jenkins with two counts of sodomy.4 The indictments were consolidated for trial.
At trial, the defense proposed to call Dr. Terence Campbell, a forensic psychologist, to testify concerning improper interviewing techniques which can result in unreliable reporting by child witnesses. Dr. Campbell had reviewed all of the discovery provided by the Commonwealth, including the interviews of J.S. He had prepared a lengthy report, and was prepared to testify as an expert witness that improper methods were used in this case. The Commonwealth objected to Dr. Campbell's proposed testimony. The trial court held an extensive Daubert5 hearing on the matter. Dr. Campbell testified at length, both as to his qualifications as an expert, and as to the scientific acceptance of the principle that suggestive interviewing techniques can affect the reliability or accuracy of a child's memory or recall. Then, Dr. Campbell analyzed the interviewing techniques used in this case, pointing out serious improprieties.
Following the Daubert hearing, the trial court agreed with the Commonwealth's objection to Dr. Campbell's testimony under a belief that, notwithstanding compliance with Daubert, Kentucky law prohibited this type of testimony. Because the trial court would not allow Dr. Campbell to testify, the defense requested that the tape of the interviews be played for the jury, so that the jury could decide if the allegations were made by J.S., or only in response to prompting and suggestions by Quails. The Commonwealth objected to the playing of the tape, and the trial court sustained the Commonwealth's objection.
The trial court granted a directed verdict on the indecent exposure charge involving B.F. Jenkins was found guilty of one count of first-degree sexual abuse of J.S., allegedly occurring on October 8, 2003, at Falling Springs, and one...
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