Mounce v. Com.

Decision Date06 September 1990
Docket NumberNo. 88-SC-730-MR,88-SC-730-MR
Citation795 S.W.2d 375
PartiesVernon MOUNCE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
CourtUnited States State Supreme Court — District of Kentucky

John R. Halstead, Danville, and Barbara M. Holthaus, Dept. of Public Advocacy, Frankfort, for appellant.

Frederic J. Cowan, Atty. Gen., John S. Gillig, and Denise A. Garrison, Asst. Attys. Gen., Frankfort, for appellee.

STEPHENS, Chief Justice.

Appellant was convicted of one count of first-degree sodomy, one count of first-degree sexual abuse, and one count of second-degree sexual abuse, in incidents involving his two 13-year-old stepdaughters. He was sentenced to 15 years on the first count, five years on the second count, to run consecutively, and to one year on the final count, to run concurrently with the first two counts, for a total of 20 years. Appellant appeals his conviction as a matter of right.

The appellant raises four allegations of error. We find that two of these allegations constitute reversible error and therefore reverse and remand for a new trial.

The first basis for reversal involves issues of discoverability and admissibility of evidence. Appellant was accused of committing the acts in question between June 20, 1986, and July 4, 1986. A social worker employed by the Cabinet for Human Resources interviewed the girls on August 28 1986. The Commonwealth subpoenaed the social worker to trial, and she arrived with a written report in hand. The Commonwealth then decided not to use her as a witness and attempted to send her away. When defense counsel saw what was transpiring, she stopped the social worker, questioned her, and then became aware of the report. The defense was first able to examine this report after the close of the Commonwealth's case. The Commonwealth claims that it did not know of the report until the day of the trial.

Defense counsel called the social worker to the stand to describe the interview she conducted with the alleged victims. The Commonwealth objected, arguing that the oral testimony and the written report were hearsay, and that the report could not be used for impeachment because no foundation had been laid. The trial judge sustained the objection and refused defense counsel's request to recall the prosecuting witnesses in order to lay the proper foundation. The social worker's testimony and report were entered into the record by avowal. The report contained a number of inconsistencies with the statements made by the prosecuting witnesses during their testimony at trial.

We find that the combined actions of the Commonwealth in failing to comply with a discovery order, and the trial judge in denying defense counsel the opportunity to lay the foundation to impeach amount to reversible error.

Looking first at the discovery issue, the record shows that the trial court issued an order on April 14, 1988, four months before trial, granting the defense the right to inspect:

"7. [A]ny and all exculpatory evidence, including evidence in mitigation, now known to the Commonwealth, or which may become known, or through the exercise of due diligence may be learned from the investigating officers or witnesses in this case. Brady v. Maryland (citation omitted); U.S. v. Bagley (citation omitted).... This request includes, but is not limited to the following:

....

C. All records of the Cabinet of Human Resources or the equivalent Ohio agency ... regarding (the alleged victims).

....

E. [E]vidence or information which may be used to impeach any Commonwealth witness or which may lead to evidence which might be used to impeach any witness. See U.S. v. Bagley (citation omitted).

F. Disclosure of any statements of any individuals, including children and/or their foster parents, which may be inconsistent, in whole or in part, with any other statements made by the same individuals and any statements made by any individuals which are inconsistent, in whole or in part, with any statements made by other individuals who have given statements relevant to the charges against the defendant;

....

H. [A]ny other matter which would affect the credibility of the Commonwealth's witnesses.... It also includes any reports and/or statements by any witness or agent for the Commonwealth which are exculpatory or tend to be exculpatory in nature, including any taped, oral, or written statement, any record or report, or any other information."

The Commonwealth argues that there was no violation of discovery because it did not know of the existence of the report until the morning of the trial; that the report, at any rate, was nondiscoverable under Kentucky's rules of criminal procedure; and that the report was not exculpatory. We find these arguments to be without merit.

The record shows that the Commonwealth was under a continuing discovery order. The record also reveals that the prosecutor did not alert the trial court or defense counsel to the existence of the report once he became aware of it. Thus, the Commonwealth's claim that it did not know of the report until the morning of trial is no defense at all.

During a conference with the court, the prosecutor stated that "I elected not to call (the social worker) because anything that she would testify would obviously be objectionable as hearsay evidence and would not, in my opinion, have been admissible.... They (defense counsel) couldn't have used her testimony directly from that report because it would have been inadmissible hearsay." The Commonwealth is confusing discoverability of evidence with its admissibility. Admissibility issues aside, the Commonwealth was under a continuing court order to provide certain evidence to the defense, which it failed to do.

The Commonwealth next argues that the report was nondiscoverable under Kentucky's rules of criminal procedure. The record shows that the Commonwealth did not object to the defense's discovery motion, which included a specific request for CHR records. If the Commonwealth thought that CHR reports were not discoverable under RCr 7.24(2) or 7.26, as it now claims, its failure to object at the time the discovery motion was made waives this collateral attack. Cf. Gullett v. McCormick, Ky., 421 S.W.2d 352, 354 (1967).

The Commonwealth's final contention is that the social worker's report is not "exculpatory," as that word is defined in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and discussed in Sweatt v. Commonwealth, Ky., 550 S.W.2d 520 (1977). This argument is superfluous, since the Commonwealth was bound by the trial court's order to provide any and all CHR records to defense counsel.

Without deciding whether the report is exculpatory, we note that the Commonwealth states in its brief that the primary value of the report was to impeach the prosecuting witnesses, not to exculpate the appellant. However, impeachment evidence as well as exculpatory evidence can constitute evidence favorable to an accused that must be disclosed under Brady. U.S. v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). And again we refer to the trial court's discovery order, which compelled production of impeaching as well as exculpatory material.

We turn now to the trial judge's refusal to allow defense counsel to lay the necessary foundation. It is well established that the right to cross examine a witness to impeach his or her credibility is fundamental to a fair trial. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). One method of impeachment is to show that on other occasions the witness has made statements inconsistent with his or her testimony at trial. See R. Lawson, Kentucky Evidence Law Handbook, § 4.10, at 93 (2d ed. 1984).

Evidence of these inconsistent statements may not be introduced unless the witness who is alleged to have made the statement is examined about it with respect to the circumstances of time, place, and persons present. Lawson, supra. However, it was impossible for defense counsel to lay the necessary foundation at the time the prosecuting witnesses were on the stand since counsel did not know the report existed at that point. The trial judge erred in refusing defense counsel's request to recall the witnesses in order to lay the necessary foundation, and the appellant was denied a fair trial as a result. On retrial, should a proper foundation be laid by defense counsel, the prior inconsistent statements can be used both to impeach and as substantive evidence. Jett v. Commonwealth, Ky., 436 S.W.2d 788 (1969).

The Commonwealth argues that any error regarding exclusion of the social worker's report and testimony was harmless because the evidence excluded was merely cumulative of the victims' testimony. The Commonwealth concedes in its brief, however, that the report of the social worker relates "to the credibility of two witnesses and the weight the jury should give their testimony." The appellant's sole defense was to attack the credibility of the prosecuting witnesses, which was bolstered by their apparent ability on the stand to recall specific details about the events they alleged took place. Their statements to the social worker, which varied in several details with their testimony at trial, may have eroded this credibility. After examining the record, we conclude that there is a substantial possibility that the result would have been different if the evidence in question had not been excluded. Commonwealth v. McIntosh, Ky., 646 S.W.2d 43, 45 (1983). The trial judge committed reversible error.

Appellant's second ground for reversal is that the trial court erred in allowing Theresa Mounce, the mother of the complaining witnesses, to testify as to what they had told her about the alleged incidents. The evidence at trial shows that the mother talked to her daughters about the complained of acts some 9 to 23 days after they allegedly occurred. The trial judge permitted the testimony under the spontaneous statement exception to the hearsay rule. We hold that the...

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