Pendleton v. Com.

Decision Date28 February 1985
Docket NumberNo. 84-SC-226-MR,84-SC-226-MR
Citation685 S.W.2d 549
PartiesFred PENDLETON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
CourtUnited States State Supreme Court — District of Kentucky

Michael A. Wright, Asst. Public Advocate, Frankfort, for appellant.

David L. Armstrong, Atty. Gen., Paul E. Reilender, Jr., Asst. Atty. Gen., Frankfort, for appellee.

WINTERSHEIMER, Justice.

This appeal is from a judgment based on a jury verdict convicting Pendleton of first-degree rape and first-degree sodomy. He was sentenced to life in prison on each charge.

Although there are six claims of error, the most important issue involves the excluded testimony from a psychologist who had administered tests and offered expert opinion that Pendleton's psychological profile was not indicative of or consistent with that of a sex offender. The testimony was taken on avowal.

The other questions are whether it was proper to allow the child victim to testify, whether a continuance should have been granted for an absent defense witness, whether the testimony about instances of past sexual abuse from the victim's sister should have been admitted, whether references to collateral criminal activity should have been admitted, and whether the prosecution's closing argument was proper.

The principal witness was the 6-year-old victim. The child was staying with Pendleton at the time of the alleged incidents. Pendleton and his wife were separated. She described the assaults on her with the use of anatomically correct dolls. On cross-examination she denied ever telling anyone including two defense witnesses that the father had done anything to her. Towards the end of her cross-examination, she refused to listen to the questions and placed her fingers in her ears. The defense objected to her competency to testify because they believed she had no conception of the oath.

The victim's 14-year-old sister testified, over objection, that she had been sexually abused by her father over a period of 6 or 7 years, although there was no sexual intercourse. The older sister also testified to a nonsexual assault. The jury was admonished to disregard that testimony.

The defense attempted to introduce the testimony of a psychologist regarding tests conducted on Pendleton. The trial court refused to allow the psychologist to testify but permitted his testimony as an avowal. Pendleton testified in his own defense and denied all allegations charged.

The jury returned a verdict of guilty on both charges and gave Pendleton two life sentences. This appeal followed.

This Court affirms the judgment of the circuit court.

The trial judge correctly ruled that the 6-year-old victim was competent to testify. Whether a witness is competent is a question for the sound discretion of the trial court. Unless that discretion is abused, it will not be disturbed on appeal. See Moore v. Commonwealth, Ky., 384 S.W.2d 498 (1964); Capps v. Commonwealth, Ky., 560 S.W.2d 559 (1977). There was no abuse of discretion.

The trial judge did not commit reversible error when he denied the motion of Pendleton for a continuance. Pendleton maintains that the trial judge committed reversible error when he denied the defendant's motion for a continuance because of the absence of a potential witness. The affidavit submitted in this case does not meet the requirements of the rule which require the affidavit show the materiality of the evidence expected to be obtained and that due diligence has been used to obtain the evidence. The facts which Pendleton would have used the missing witness to prove were presented to the jury through the victim's testimony. The defense theory was not hampered by the witness's absence. Under all the circumstances the denial of the continuance was nonprejudicial and the trial judge acted within his authority and did not abuse his discretion. RCr 9.24. A reviewing court will not disturb such a decision unless it is clearly demonstrated to be an abuse. Davidson v. Commonwealth, Ky., 555 S.W.2d 269 (1977).

The issue regarding evidence of past sexual misconduct by the accused with his daughter Janet who was a witness at the trial is not reversible error.

Evidence of independent sexual acts between the accused and persons other than the victim are admissible if such acts are similar to that charged and not too remote in time provided the acts are relevant to prove intent, motive or a common plan or pattern of activity. The acts performed on Janet were of a similar nature as those performed on April. Janet's testimony was admissible as showing a method of operation of sexual activity with his young daughters and to indicate a common and continuing pattern of conduct on the part of the accused.

Contrary to the language in Russell v. Commonwealth, Ky., 482 S.W.2d 584 (1972), no evidence is admissible to show "lustful inclination." This Court is uncertain as to what is meant by the broad and subjective phrase "lustful inclination." The better standard requires evidence to be the type that shows a common plan or pattern of activity as stated above.

Kentucky, like many other jurisdictions, has consistently followed the general rule that evidence of other criminal acts of the accused is inadmissible unless it comes within certain well-defined exceptions which must be strictly construed. Jones v. Commonwealth, Ky., 198 S.W.2d 969 (1947).

Evidence of other crime is admissible when the crime has a special relationship to the offense charged. Such evidence would show motive, identity, absence of mistake or accident, intent, or knowledge, or common scheme or plan. See Lindsay v. Commonwealth, Ky., 500 S.W.2d 786 (1973); Leigh v. Commonwealth, Ky., 481 S.W.2d 75 (1972); Rake v. Commonwealth, 450 S.W.2d 527 (1970), Spencer v. Commonwealth, Ky., 554 S.W.2d 355 (1977); Wonn v. Commonwealth, Ky.App., 606 S.W.2d 169 (1980).

Evidence of other crimes of sexual misconduct is also admissible for the purpose of showing motive, a common pattern, scheme or plan. See Keeton v. Commonwealth, Ky., 459 S.W.2d 612 (1970), Spencer v. Commonwealth, supra; Jones v. Commonwealth, supra.

So much of Russell v. Commonwealth, Ky., 482 S.W.2d 584 (1972), is overruled to the extent that it relates to the admission of evidence used to prove lustful inclination in the accused and that case is limited to the same standards that are provided for other crimes, that is, a pattern of activity, common plan or motive and scheme. Rigsby v. Commonwealth, Ky., 495 S.W.2d 795 (1973), is overruled to the same extent.

The testimony of the witness was admissible, not to show lustful inclination, but to show motive, common pattern scheme or plan, or common modus operandi. Young v. Commonwealth, Ky., 335 S.W.2d 949 (1960).

Pendleton was not denied due process of law or his right to a fair trial by the evidence of prior acts of assault. The unsolicited testimony of prosecution witnesses regarding prior conduct did not constitute grounds for reversal. The jury was promptly and properly admonished not to consider the testimony.

The statement made by Janet concerning a bomb threat was not directly related to the appellant. In any event, the trial judge properly admonished the jury not to consider it. No prejudice to Pendleton resulted from the statements and, if there was any problem, it was cured by the trial judge's admonition to the jury. See Ware v. Commonwealth, Ky., 537 S.W.2d 174 (1976); Seay v. Commonwealth, Ky., 609 S.W.2d 128 (1980).

The isolated remarks made by the prosecutor in closing argument were not reversible error. When the entire closing argument is considered in context, the remarks complained of do not amount to reversible error. Elswick v. Commonwealth, Ky.App., 574 S.W.2d 916 (1978). When considering the case as a whole, there is no error so prejudicial that there is any substantial possibility that the result could have been any different. Blake v. Commonwealth, Ky., 646 S.W.2d 718 (1983).

The trial court correctly refused Pendleton's attempt to introduce the testimony of psychologist Kroger. Kroger's testimony, as given on avowal, should not have been admitted because it went to the ultimate issue of innocence or guilt. The testimony was to the effect that Pendleton's psychological profile was not consistent with that of a sex offender. In addition there was a desire to present Kroger's testimony as to the probability that Pendleton had committed the act.

An opinion as to whether the accused had the ability or propensity to commit such an act is improper because it is an opinion on the ultimate fact, that is, innocence or guilt. Consequently it invades the proper province of the jury. Such an opinion is not evidence of mental condition but is a factual conclusion of the witness on the ultimate issue before the jury which can be reached only by consideration of all the facts. Koester v. Commonwealth, Ky., 449 S.W.2d 213 (1969). Also see, Hampton v. Commonwealth, Ky., 666 S.W.2d 737 (1984), as dispositive of this question because the testimony as proffered went to the ultimate question of innocence or guilt rather than being limited to the professional opinion regarding mental condition.

The psychologist's testimony was not limited to a professional opinion or mental condition. Robinson v. Commonwealth, Ky.App., 569 S.W.2d 183 (1978), is distinguishable because it specifically notes that the clinical psychologist did not attempt to say that appellant's mentality was such that she could not perceive a danger. The Court goes on to point out that such testimony would probably be improper. Id. at p. 185.

Buckler v. Commonwealth, Ky., 541 S.W.2d 935 (1976), is in no way relevant to the case at bar because it is a case where the defense of insanity is specifically pled. Although the issue is not before us, the case would have been an entirely different animal had the defense of insanity been relied on and the proper statutory notices been given in regard to the psychologist's testimony.

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