Mercado v. Commonwealth

• Decision Date: 28 August 2015
• Docket Number: NO. 2012-CA-001916-MR,2012-CA-001916-MR
• Parties: ALBERT R. MERCADO APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
• Court: Kentucky Court of Appeals

ALBERT R. MERCADO APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2012-CA-001916-MR

Commonwealth of Kentucky Court of Appeals

AUGUST 28, 2015

NOT TO BE PUBLISHED

APPEAL FROM CARTER CIRCUIT COURT

HONORABLE REBECCA K. PHILLIPS, JUDGE

ACTION NO. 10-CR-00074

OPINION

AFFIRMING

BEFORE: DIXON, KRAMER, J. LAMBERT, JUDGES.

KRAMER, JUDGE: Albert R. Mercado appeals the Carter Circuit Court's judgment convicting him of second-degree rape and sentencing him to seven years of imprisonment. After a careful review of the record, we affirm because the bolstering of Mercado's stepdaughter's credibility did not amount to palpableerror, Mercado's speedy trial rights were not violated, and the circuit court was required to instruct on the lesser-included offense.

I. FACTUAL AND PROCEDURAL BACKGROUND

Mercado was indicted in April 2010 on the charges of first-degree rape and three counts of first-degree sodomy. All of the charges alleged that his stepdaughter, who was the purported victim, was physically helpless at the time he committed the crimes against her. The stepdaughter was then thirteen years old.

Mercado moved for a modification of his bond in May 2010, but his motion was denied. Mercado orally requested a speedy trial during his arraignment in June 2010, but he did not request a trial date be set at that time considering that large amounts of discovery had not been provided to him. Mercado filed a written motion for a speedy trial in November 2010. A hearing was conducted on that motion on December 6, 2010, during which the jury trial was scheduled for March 1, 2011. Mercado also informed the court during that hearing that he still had not received various discovery items, including Mercado's interview by law enforcement and the Hope's Place¹ interview of his stepdaughter, both of which had been mentioned during an earlier hearing in August 2010 as having not been provided to the defense yet. The court stated that copies of those interviews should be turned over to the defense. Over the next couple of months, several other hearings were held, and during each of these hearings, the defensereiterated that Mercado's interview still had not been turned over to the defense, and the court stated each time that it needed to be provided to them. During the hearing in late February 2011, the court expressed its irritation with the fact that Mercado's interview still had not been provided to the defense, and the court told the Commonwealth that if law enforcement did not provide it to the Commonwealth by that Friday (presumably so the Commonwealth could give it to the defense), the court was going to hold a show cause hearing. The court noted that it had been almost one year since Mercado's arrest, he had been in custody that entire time, and the interview of Mercado was presumably conducted soon after his arrest. No show cause hearing was ultimately conducted, however, so we assume that the interview was provided to the defense by the deadline set by the court.

In April 2011, Mercado moved the court to reconsider the issue of bond due to the fact that the DNA analysis still had not been completed. The court ordered the DNA hair analysis to be provided by July 11, 2011. Mercado still was not released on bond.

During a pretrial conference in July 2011, Mercado orally moved to dismiss the case against him on the basis that his right to a speedy trial had been violated. The court denied Mercado's motion to dismiss. The court reasoned that during the February 2011 pretrial conference, which was conducted about one week before the trial was originally scheduled to begin on March 1, 2011, Mercado's counsel advised the court that he would not be available for trial onMarch 3, 4, or 7, 2011, due to a previously scheduled family vacation. At that time the circuit court had asked defense counsel if he was trying the case, and he responded that he was. The trial was expected to take at least four days to complete. The circuit court had stated that it was not feasible to begin a trial when defense counsel would not be present for two of the first four days of trial. Defense counsel had told the court during that February 2011 pretrial conference that another attorney in his office who had handled some of the pretrial hearings in Mercado's case might be able to represent Mercado during trial while primary counsel was on vacation. However, the court decided to continue the case because counsel had said he was trying the case, not the other attorney from his office.

Additionally, the circuit court noted in its written order denying Mercado's motion to dismiss the case that when defense counsel had requested a continuance, the court had informed him that it would not be able to reschedule the trial for a time immediately after his vacation because the court had various other trials scheduled in the upcoming months. The court also noted that when counsel was informed that trial would not be rescheduled immediately, counsel did not object to the continuance of the trial and did not assert that it would violate Mercado's right to a speedy trial. Further, the circuit court reasoned as follows:

[T]his Court has repeatedly inquired about the status of discovery and has pushed the Commonwealth to turn over the discovery information as soon as possible to ensure that [Mercado] has received all information. Given the circumstances of this case, there has obviously been no denial of [Mercado's] rights. This case is one which involved lab analysis and DNA testing. It is wellknown that an extensive delay occurs when the completion of DNA testing at the Kentucky State Police Crime Lab is necessary. Such delay is regrettable yet unavoidable due to the fact that only one lab conducts DNA testing.

Therefore, the circuit court denied Mercado's motion to dismiss the case on speedy trial grounds.

Mercado's jury trial began in July 2011. Before the case was submitted to the jury, the circuit court granted Mercado a directed verdict on one of the charges of first-degree sodomy because the evidence presented regarding that charge did not constitute first-degree sodomy, but it could constitute the lesser-included offense of first-degree sexual abuse. Therefore, the charge of first-degree sexual abuse was submitted to the jury in place of one of the counts of first-degree sodomy. Mercado was ultimately convicted of second-degree rape (a lesser-included offense of first-degree rape), and he was acquitted of the remaining charges. He was sentenced to serve seven years of imprisonment, to be served consecutively "with the misdemeanor sentence imposed in Carter District Court Case No. 10-M-00171."

Mercado filed a motion for a belated appeal, so this Court remanded the matter to the circuit court for an evidentiary hearing "to determine whether movant, implicitly or explicitly, waived the right to appeal." The circuit court held the hearing and entered its findings of fact and conclusions of law concerning Mercado's waiver of his right to appeal. This Court then granted Mercado's motion for a belated appeal.

On appeal, Mercado contends that: (a) a witness for the Commonwealth improperly bolstered his stepdaughter's credibility by saying her demeanor was typical of a victim; (b) Mercado was denied his right to a speedy trial; and (c) the circuit court erred when it instructed the jury on a lesser-included offense over his objection.

II. ANALYSIS

A. BOLSTERING OF STEPDAUGHTER'S CREDIBILITY

Mercado first alleges that a witness for the Commonwealth improperly bolstered his stepdaughter's credibility by saying that her demeanor was typical of a victim. Mercado acknowledges in his brief that this issue was not preserved for our review, but he asks us to review it for palpable error. Kentucky Rules of Criminal Procedure (RCr) 10.26 provides as follows: "A palpable error which affects the substantial rights of a party may be considered . . . by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error."

[T]he requirement of "manifest injustice" as used in RCr 10.26 . . . mean[s] that the error must have prejudiced the substantial rights of the defendant, . . . i.e., a substantial possibility exists that the result of the trial would have been different. . . .

[The Kentucky Supreme Court has] stated that upon consideration of the whole case, the reviewing court must conclude that a substantial possibility exists that the result would have been different in order to grant relief.

Castle v. Commonwealth, 44 S.W.3d 790, 793-94 (Ky. App. 2000) (internal quotation marks omitted).

Erica Brown, the executive director of Hope's Place, testified as a witness for the Commonwealth. Ms. Brown attested that she conducted the forensic interview of Mercado's stepdaughter at Hope's Place and, during the interview, she "found [the stepdaughter's] demeanor to be typical of a victim." Mercado argues that although Ms. Brown did not testify concerning what his stepdaughter said to her, by making this statement, Ms. Brown vouched for the truthfulness of his stepdaughter's statements, which he contends was improper.

In Hoff v. Commonwealth, 394 S.W.3d 368 (Ky. 2011), the Kentucky Supreme Court held:

It is well-settled that a witness cannot vouch for the truthfulness of another witness. . . . In Bell [v. Commonwealth, 245 S.W.3d 738 (Ky. 2008), overruled on other grounds by Harp v. Commonwealth, 266 S.W.3d 813 (Ky. 2008)], this Court stated that it was error to allow a social worker to testify that a child sounded "spontaneous" and "unrehearsed" in describing sexual abuse. Bell, 245 S.W.3d at 744-45. Although the social worker in Bell did not literally say that she believed the child to be truthful, her opinion about the child's truthfulness was implicit in her statements, and so her testimony was impermissible bolstering. Id. at 745 n.1.

This Court has held that social workers

...