L.J.K. v. State

• Decision Date: 23 December 2005
• Docket Number: CR-04-0060.
• Citation: 942 So.2d 854
• Parties: L.J.K. v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

942 So.2d 854

L.J.K. v. STATE of Alabama.

CR-04-0060.

Court of Criminal Appeals of Alabama.

December 23, 2005.

Opinion Overruling Rehearing March 3, 2006.

Certiorari Denied May 12, 2006 Alabama Supreme Court 1050807.

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W. Stan Garner, Jr., Ozark, for appellant.

Troy King, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.

PER CURIAM.

The appellant, L.J.K., was indicted for three counts of sexual abuse in the first degree, violations of § 13A-6-66(a)(3), Ala. Code 1975, and three counts of sodomy in the first degree, violations of § 13A-6-63(a)(3), Ala.Code 1975. Count I charged L.J.K. with the sexual abuse of his then four-year-old son, I.K.; Count II charged L.J.K. with the sexual abuse of his then four-year-old daughter, M.K.; Count III charged L.J.K. with the sexual abuse of his then six-year-old daughter, F.K.;¹ Count IV charged L.J.K. with the sodomy of I.K.; Count V charged L.J.K. with the sodomy of M.K.; and Count VI charged L.J.K. with the sodomy of F.K. The trial court granted L.J.K.'s motion for a judgment of acquittal at the close of the State's case as to Count IV and dismissed that charge. A jury convicted L.J.K. of sexual abuse as charged in Counts I through III, and of sodomy as charged in Counts V and VI. The trial court sentenced L.J.K. to 10 years' imprisonment for each of the sexual-abuse convictions and to life imprisonment for each of the sodomy convictions. The three 10-year sentences were to run concurrently with each other and with the two life-imprisonment sentences; the two life-imprisonment sentences were to run consecutively to each other.

The evidence adduced at trial indicated the following. In the summer of 2002, L.J.K. and his three children moved in with L.J.K.'s then girlfriend, W.K.,² and her 12-year-old son, J.D. In October 2002, L.J.K. was arrested for domestic violence with respect to J.D.³ Upon his arrest, L.J.K. requested that his children be removed from the home and placed in foster care;⁴ the evening of L.J.K.'s arrest, the children were picked up by an employee of the Dale County Department of Human Resources ("DHR") and taken to the Wiregrass Children's Home. The following day, pursuant to standard procedure, the children were taken for medical examinations. After the examinations, Teresa Robbins, a child-abuse investigator with DHR, drove the children back to the Wiregrass Children's Home. During the drive, Robbins said, M.K. began singing "I suck Daddy's weenie" over and over. (R. 51.) Robbins reported M.K.'s statements and later interviewed the three children, as well as J.D.

Robbins testified that M.K. told her that "she did suck Daddy's weenie"; that her father "put chalk in her mouth," which Robbins said indicated semen; and that "she had licked [F.K.'s] cat," which Robbins said was the name M.K. and F.K. used when referring to their vaginal areas. (R. 55.) Robbins testified that when she asked F.K. whether she and M.K. had ever "licked each other," F.K. said yes. (R. 56.) Robbins testified that I.K. told her that he had never been touched by anyone, but that "he had seen [F.K.] and [M.K.] lick" and that "[h]e had seen [F.K.] and [M.K.] in the bed with [W.K.], licking [W.K.]." (R. 56.) Robbins testified that J.D. told her that "he had witnessed [M.K.] and [F.K.] on the floor with no clothes on, licking each other" and that "he had seen [L.J.K.] join in," but that J.D. did not explain what he meant by "join in." (R. 57.) Believing the children's statements to be credible, Robbins notified the police.

The three children were later interviewed again by Sherry Shaw, a forensic evaluator at the Southeast Alabama Child Advocacy Center. Shaw testified that F.K. told her that "[M.K.], [J.D.,] and her daddy had — they liked to lick her cat" (R. 98); that "she had licked her sister's cat before," but that "it tastes nasty," so "she just licks weenies" (R. 99); and that "she had licked her daddy's weenie, [J.D.'s] weenie, and [I.K.'s] weenie." (R. 99.) Shaw testified that M.K. told her that "[J.D.] had licked her cat and kissed her booty," which Shaw said was the name M.K. used for her buttocks (R. 100); that "[F.K.] licked her cat" but would not kiss her "booty" even though she had "kissed [F.K.'s] booty" (R. 101); that "[I.K.] licks her cat but he doesn't like to, and he just wants her to suck his weenie" (R. 101); and that her "daddy licks her cat, too, but that she couldn't tell [Shaw] about that" because she didn't "want [her] daddy to get in trouble." (R. 101.) Shaw testified that I.K. told her that "[m]y daddy doesn't touch my weenie . . . I only touch daddy's weenie, and I touch [F.K.] and [M.K.'s] cat" (R. 102); that "his sisters had touched . . . his dad's weenie" (R. 102); but that "he couldn't talk about anything about his daddy because his daddy is good and he doesn't want his daddy to be in trouble." (R. 102-03.)

Lois Madison, a therapeutic foster parent, testified that F.K., M.K., and I.K. were placed in her home in 2002 and stayed with her for nine months. She said that, during their stay, F.K. had repeated vaginal yeast infections; that twice she had caught M.K. on top of F.K. "grinding in a sexual motion" (R. 34); and that she had once caught M.K. masturbating in her bedroom in the presence of F.K. In addition, Madison testified that on two occasions she fell asleep watching cartoons with the children and awoke to I.K.'s attempting to perform sexual acts on her. Specifically, Madison said that the first time she awoke to I.K.'s "rubbing my buttocks and kissing me from behind" (R. 36), and that the second time she awoke and I.K. was "between [her] legs with his mouth on [her] privates." (R. 36.)

D.C. and P.C., friends of J.D., both testified that they had seen inappropriate sexual conduct involving the three children and L.J.K. D.C. testified that he once saw M.K. and F.K. kissing each other using their tongues, and that one night, when he spent the night at L.J.K.'s home, he heard noises and went into the living room where he saw L.J.K. and M.K. on their knees and M.K. was "suck[ing]" L.J.K.'s penis. (R. 67.) P.C. testified that he often saw the three children "grab each other's private spot" (R. 78), and that one time he walked into the living room and saw L.J.K. on top of M.K. and both had their pants down.

Neither M.K. nor F.K. testified at trial; after extensive questioning, the trial court determined that they did not understand what it meant to tell the truth or to take an oath, and the court found them incompetent to testify. However, I.K., after questioning, was deemed qualified to testify by the trial court, and he testified at trial. His testimony contradicted his previous statements to Sherry Shaw and was internally inconsistent. I.K. began by stating that he remembered talking to Shaw, but he denied that he had talked to her about anyone ever touching his or his sisters' "body parts" (R. 116), or about whether he had touched anyone else's "body parts." (R. 119.) I.K. also testified that he had never "licked" anyone's "cat," or anyone's "penis" and that no one had ever "licked" his "penis." (R. 122-23.) When asked whether he had "ever seen anybody lick another person's penis," I.K. nodded his head in the affirmative. (R. 123.) When asked "[w]hose penis did you see get licked?" he responded, "[t]hat big boy like this. He this tall." (R. 123.) The prosecutor then asked "[w]ho licked his penis?" and I.K. responded, "[m]y daddy know." (R. 123.) When the prosecutor again asked "[w]ho licked his penis?" I.K. said "[h]e start with J." (R. 123.) However, when the prosecutor asked a third time, "[w]ho licked his penis?" I.K. said, "It wasn't nobody" (R. 123), and when the prosecutor then asked "[b]ut you saw somebody lick his penis?" I.K. shook his head in the negative. (R. 124.) In response to further questioning by the prosecutor, I.K. testified that he remembered telling Shaw that he had seen his sisters "lick somebody's penis" and that he told Shaw that because it was the truth. However, when asked "so who did you tell [Shaw] that you had seen your sisters lick?" I.K. responded: "I didn't see no girls lick nobody else. My sisters, I didn't see them lick nobody else." (R. 125.) Finally, when asked again by the prosecutor whether he had told Shaw that he had seen his sisters "lick somebody," I.K. denied making such a statement. (R. 125.)

L.J.K. testified on his own behalf; he denied all of the allegations against him. W.K. also testified on L.J.K.'s behalf; she testified that she had never witnessed any sexual contact between L.J.K. and any of his three children. Finally, Kelly Parrish, a child and adolescent counselor at New Horizons in Columbus, Georgia, testified on L.J.K.'s behalf. Parrish testified that she had been counseling I.K., M.K., and F.K. for several months;⁵ that their school records indicated that they were "well-behaved, well-adjusted children" (R. 205); that she had seen no signs of abuse from the children; and that all three children had denied any abuse.

I.

L.J.K. first contends that the trial court erred in admitting into evidence the testimony of Teresa Robbins and Sherry Shaw regarding the hearsay statements of M.K. and F.K. because, he says, the court failed to comply with § 15-25-32, Ala.Code 1975. Specifically, L.J.K. argues that the court did not make any findings that M.K. and F.K. were unavailable to testify for any of the reasons stated in § 15-25-32(2)a., or that M.K.'s and F.K.'s hearsay statements possessed particularized guarantees of trustworthiness as required by § 15-25-32(2)b. Although L.J.K. objected to the admission of the hearsay statements of all three children, he did so on the grounds that § 15-25-30 et seq., Ala.Code 1975, was unconstitutional and that under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the admission of the hearsay statements would violate his right to confront his accusers....