Paenitz v. Com., 89-SC-937-MR
| Decision Date | 06 June 1991 |
| Docket Number | No. 89-SC-937-MR,89-SC-937-MR |
| Citation | 820 S.W.2d 480 |
| Court | United States State Supreme Court — District of Kentucky |
| Parties | Steven PAENITZ, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
Elizabeth A. Hill, Fayette County Legal Aid, Lexington, for appellant.
Frederic J. Cowan, Atty. Gen., Perry T. Ryan, Asst. Atty. Gen., Frankfort, for appellee.
Appellant was convicted of the first-degree rape of a three-and-one-half-month-old girl and sentenced to eighty years' imprisonment. He appeals as a matter of right.
After being evicted from his apartment, appellant moved in with acquaintances William and Mary Bogumil. They had two children, a boy eighteen months old and a girl three and one-half months old. Two weeks later, on December 10, 1988, the Bogumils went to a nearby laundromat. Because the baby girl was asleep and because William planned to return in five minutes, the baby was left at home with the appellant.
William returned in approximately fifteen minutes. He found the appellant crouched over the baby on the couch and blood all around. The baby had suffered a tearing between her vagina and rectum, and blood was still oozing from the wound when the baby thereafter was seen at the hospital. Subsequently, appellant was charged with first-degree rape.
Appellant's defense was that the tearing must have occurred because he inserted his finger in the baby's vagina while he was masturbating. Appellant testified that he suffers from the condition of pedophilia, wherein an adult has a sexual fascination for children. While his testimony indicated that he had been involved in problems with children before, he stated that he had not previously engaged in sexual acts with a victim so young as this one. Appellant further noted that he turned himself in some two days after this crime because he believed it was time to stop running.
Appellant argues that the evidence was insufficient to prove the insertion of his penis into this baby and, therefore, he should have been entitled to a directed verdict on the first-degree rape charge. On the contrary, it appears that the circumstantial evidence was sufficient to submit this matter to the jury. Pubic hairs were found in the baby's vaginal area which were consistent with the pubic hairs taken from appellant. Furthermore, there were lice found in appellant's pubic hairs and there were empty lice eggs found in the pubic hairs taken from the vaginal area of the baby. The examining doctor's testimony indicated that the tear in the baby could have been caused by a penis, although it also could have been caused by any blunt object. The case necessarily depends on circumstantial evidence; however, the evidence here was sufficient to submit to the jury the question of whether there was penile penetration.
An infinitely more troublesome issue involves the failure of Karen Carter, a juror who sat on this case, to disclose during voir dire a pretrial conversation she had about the case with Dr. Janice Porter, who testified at trial as the examining doctor. Dr. Porter called the Commonwealth's Attorney's office shortly after the trial and informed the prosecutor that she had had a discussion with this juror prior to the trial. During voir dire, this juror was given every opportunity to admit such a discussion, but failed to do so. Instead, she simply acknowledged knowing the first name of the doctor and that she knew her by way of their swimming together at the YWCA. She stated that her decision in this case would not be influenced by her minimal knowledge of the doctor. Because of this assurance, this juror was not challenged for cause nor peremptorily. Of course, there was no indication at all from this juror that she had any knowledge whatsoever about this case, nor any relationship with the doctor wherein she would have gleaned any information about this case.
As it turned out, this was false. During a hearing on a motion for a new trial, Dr. Porter testified that she had discussed the case with this juror three days prior to trial. She had informed the juror that it was an "awful" case involving the rape of a three-and-one-half-month-old baby. She noted that the baby was "ripped" from her vagina to her rectum, and she further noted that she would not want to be a juror in a case like this. This juror assured her that she would not be sitting on the case even though she was on the jury panel because her husband was a lawyer and because she would tell the court that she knew the doctor.
It was a flagrant abuse of juror responsibility for this juror to have failed to disclose the discussion during voir dire examination. The trial court asked if any juror had any knowledge or information about this case. This juror sat...
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