Smith v. Commonwealth

• Decision Date: 16 December 2021
• Docket Number: 2020-SC-0370-MR
• Citation: 636 S.W.3d 421
• Parties: Brett A. SMITH, Appellant v. COMMONWEALTH of Kentucky, Appellee
• Court: United States State Supreme Court — District of Kentucky

636 S.W.3d 421

Brett A. SMITH, Appellant

v.COMMONWEALTH of Kentucky, Appellee

2020-SC-0370-MR

Supreme Court of Kentucky.

DECEMBER 16, 2021

COUNSEL FOR APPELLANT: Michael Romano Mazzoli, Cox & Mazzoli PLLC, Louisville.

COUNSEL FOR APPELLEE: Daniel J. Cameron, Attorney General of Kentucky, Mark Daniel Barry, Assistant Attorney General.

OPINION OF THE COURT BY JUSTICE KELLER

Brett A. Smith was convicted of one count of sodomy in the first degree, victim under 12 years old, and three counts of sexual abuse in the first degree, victim under 12 years old, by a Henry County jury. He was sentenced to a total of twenty-five years’ imprisonment. He now appeals to this Court as a matter of right. See KY. CONST. Section 110 (2)(b). After careful review of the record and arguments of the parties, we affirm the Henry Circuit Court.

I. BACKGROUND

In May 2013, M.F.,¹ who was 12 years old at the time, disclosed to her aunt that her mother, Laura Pike, and her mother's live-in boyfriend, Brett Smith, had sexually assaulted her on multiple occasions. During the summer of 2013, M.F. underwent two forensic interviews regarding these allegations. In February 2014, Smith and Pike were both indicted by a Henry County grand jury on multiple charges. Smith, specifically, was indicted on one count of sodomy in the first degree, victim under 12 years old, and three counts of sexual abuse in the first degree, victim under 12 years old. Pretrial litigation ensued, including an interlocutory appeal by the Commonwealth regarding a trial court ruling excluding certain Kentucky Rule of Evidence (KRE) 404(b) evidence. Just prior to trial, Smith's and Pike's cases were severed. Smith proceeded to a trial by jury in February 2020 and was convicted of all counts. The Henry County jury recommended sentences of twenty-five years on the sodomy count and five years on each of the sexual abuse counts and further recommended that these sentences be served concurrently. The trial court sentenced Smith consistently with the jury's recommendation. Smith then appealed to this Court. We will discuss additional facts as needed for our analysis.

II. ANALYSIS

Smith alleges the trial court committed five errors. First, he alleges the trial court erred in denying his motion for a directed verdict on one of the sexual abuse counts. Second, he alleges the trial court erred by admitting testimony about wrongful acts Pike committed outside his presence and without his knowledge. Third, he asks this Court to review M.F.’s psychotherapy records to determine if the trial court erred in concluding they did not contain any exculpatory evidence. Fourth, he argues that his speedy trial right was violated by the Commonwealth's interlocutory appeal of the trial court's ruling excluding KRE 404(b) evidence. Finally, Smith argues that the trial court abused its discretion when it denied his motion for a reduced sentence under Kentucky Revised Statute (KRS) 532.070. We will discuss each allegation in turn.

A. The trial court did not err in denying Smith's motion for a directed verdict.

Smith first argues that the trial court erred in denying his motion for a directed verdict on one count of sexual abuse, specifically, that was described in Count II of the indictment. In order to understand Smith's argument, we must describe certain parts of the proceedings in detail, beginning with the indictment itself.

As previously described, Smith was indicted on one count of sodomy in the first degree and three counts of sexual abuse in the first degree. Each of the sexual abuse counts is described identically in the indictment:

On or about and between July 1, 2012, and November 30, 2012, in Henry County, Kentucky, the above-named defendant, BRETT A. SMITH, committed the offense of sexual abuse in the first degree, a class C felony, when he had sexual contact with M.F., date of birth July 15, 2001, a person less than twelve years of age, all in violation of KRS 510.110, contrary to other laws, statutes, and regulations as made and provided in such cases, and against the peace and dignity of the Commonwealth of Kentucky.

Use of identical indictment counts is the typical practice of the Commonwealth. See Johnson v. Commonwealth , 405 S.W.3d 439, 453 n.8 (Ky. 2013). Although sometimes problematic, the practice is compliant with our general notice-pleading standard. Id. Indictments such as this are then fleshed out through bills of particulars and then by the jury instructions at trial. Id.

During Smith's trial, M.F. testified to at least four separate incidents of sexual assault perpetrated on her by Smith and Pike in Henry County. The first incident that occurred in Henry County began when she was in Smith and Pike's bedroom playing on the computer. According to her testimony, Smith and Pike were sitting on either side of her when they began touching her legs and trying to pry them open. Eventually they told M.F. that it was their turn to play on the computer, and they put on pornography. M.F. testified that Smith and Pike removed her clothing. They then rubbed, put their fingers in, and licked her vagina. She also stated that Smith attempted to insert his penis into her vagina but that it would not fit.

M.F. also testified that on at least two occasions Smith and Pike went into her bedroom in the middle of the night to sexually assault her. She stated that on those occasions Smith and Pike removed her clothes and then had oral sex with her, put their fingers on her vagina, and inserted their fingers into her vagina. M.F. also testified to one instance that occurred during the day. On that occasion, Pike and Smith made G.F., M.F.’s younger brother, go outside. They then began kissing each other on the couch before telling her to go into their bedroom with them. She testified that Smith and Pike took off her clothes. She stated she was "orally assaulted" and that Smith and Pike put their fingers in her. She also testified that Pike sat on her face but that she kept her mouth closed and did not breathe.

In addition to those specific instances, M.F. testified that Smith and Pike grabbed her hands and put them on Smith's penis. They also made her put her mouth on his penis. She did not link these instances to any particular occasion of sexual assault as previously described. She did, however, explain that the acts performed on her were very similar every time they occurred.

At the close of the Commonwealth's case, Smith moved for a directed verdict, arguing that at least one of the sexual abuse charges should be dismissed. He argued that it was unclear how many acts of sexual abuse took place but that M.F. testified to two instances at most. The Commonwealth, on the other hand, argued that the first instance of sexual assault that M.F. testified occurred in Henry County included both sodomy and sexual abuse. The trial court denied Smith's directed verdict motion, specifically stating that it was "not sure what [it would] see on the instructions," and that it had seen the Commonwealth's proposed instructions² but not Smith's. At the close of the defense case, Smith renewed his motion for a directed verdict, "stand[ing] on [his] prior arguments." The trial court again denied his motion.

The Commonwealth then submitted a new set of jury instructions with slight changes from its original set. Under the instruction for Count 1, the jury was instructed to find Smith guilty of sodomy in the first degree if it believed beyond a reasonable doubt that Smith engaged in deviate sexual intercourse with M.F. under the following circumstances:

while in the bedroom of Brett Smith and Laura Pike ... [M.F.] was sitting between them playing a game on a laptop computer when Brett Smith and Laura Pike took the computer from [M.F.] and began to watch porn in her presence, then pried her legs open, all while the door to the bedroom was closed, and placed his mouth on her vagina.^{[3 ]}

Under the instruction for Count 2, the jury was instructed to find Smith guilty of sexual abuse in the first degree if it believed beyond a reasonable doubt that Smith subjected M.F. to sexual contact under the following circumstances:

while in the bedroom of Brett Smith and Laura Pike ... [M.F.] was sitting between them on the bed playing a game on her computer when Brett Smith and Laura Pike took the computer from [M.F.] and began to watch porn in her presence, he then took her hands and put them on his penis, all while the bedroom door was closed.

Under the instruction for Count 3, the jury was instructed to find Smith guilty of sexual abuse in the first degree if it believed beyond a reasonable doubt that Smith subjected M.F. to sexual contact under the following circumstances:

on the occasion when he and Laura Pike made [G.F.] go outside, while [M.F.] stayed inside the home, Laura Pike and Brett Smith began to touch each other on the couch, before taking her to their bedroom where Brett Smith fondled her vagina with his fingers.

Finally, under the instruction for Count 4, the jury was instructed to find Smith guilty of sexual abuse in the first degree if it believed beyond a reasonable doubt that Smith subjected M.F. to sexual contact under the following circumstances:

on the occasion in the bedroom of [M.F.] ... when while she laid asleep in her bed, Brett Smith and Laura Pike came into her bedroom, removed her clothing while she pretended to still be asleep and Brett Smith fondled her vagina with his finger.

Smith objected to these instructions explaining that he did not believe the jury should be given more than three total instructions, two for sexual abuse and one for sodomy. He argued that M.F. testified to two instances of sexual assault that occurred in the middle of the night and to one that occurred during the day, totaling only three separate instances. The Commonwealth countered Smith's argument by asserting that M.F. actually testified to four separate instances: the very first time in Henry County, the two occasions in the middle of the...