Spencer v. Com.

• Decision Date: 10 June 1977
• Citation: 554 S.W.2d 355
• Parties: Harold Lawrence SPENCER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 355

554 S.W.2d 355

Harold Lawrence SPENCER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Supreme Court of Kentucky.

June 10, 1977.

John Tim McCall, Louisville, for appellant.

Robert F. Stephens, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for appellee.

CLAYTON, Justice.

The Jefferson County Grand Jury returned a six-count indictment against the appellant, Harold L. Spencer, charging him with the kidnapping, first-degree robbery and first-degree rape of Marilyn Louden occurring on February 7, 1976, and with the kidnapping, first-degree rape and first-degree sodomy of Deborah Wise occurring on April 17, 1976. Following a jury trial, Spencer was acquitted of those charges involving Marilyn Louden but convicted of those involving Deborah Wise. He was sentenced to 20 years' imprisonment on each such charge, the sentences for kidnapping and rape to run concurrently, and that for sodomy to be served consecutively to the two other charges. Five allegations of error are raised by his appeal from that conviction.

The testimony presented at trial was in agreement in showing that appellant, a part-time policeman and security guard, was wearing a police uniform and driving a car equipped with flashing blue lights when he stopped Deborah Wise for the ostensible purpose of giving her a speeding ticket. The testimony as to the subsequent events, however, was in disagreement. The victim testified that after appellant asked to see her driver's license, he ordered her to "scoot over" and she "wouldn't get hurt", then took his pistol out, got behind the wheel of her car, drove it a short distance to a darker location within the parking lot in which she had stopped, removed her clothing, forced her to engage in oral sex, and raped her. Her testimony does not indicate her confinement to be of any significant length greater than that incidental to the commission of the crimes alleged. Appellant's testimony, on the other hand, admitted his having sexual relations with the victim, but denied his using force or threats in doing so, claiming instead that she knew him from an apartment complex at which they had both once been residents and consented to the acts. Appellant therefore argues that since his testimony contradicted that of the victim as to the element of "forcible compulsion", which must be present for convictions for first-degree rape and sodomy, he was entitled to an instruction on the lesser included offense of sexual misconduct, defined by KRS 510.140 as ". . . sexual intercourse or deviate sexual intercourse with another person without the latter's consent." We disagree. In Cooper v. Commonwealth, Ky., 550 S.W.2d 478 (rendered January 28, 1977), we held, after discussing the language of KRS 510.140 and its accompanying commentary, that this statute is not applicable where both parties are over 21 years of age and neither was physically or mentally incapacitated at the time of the occurrence. This being the situation presented herein, we conclude there to have been no error in the trial court's refusal to instruct the jury on the offense of sexual misconduct as sought by the appellant.

Appellant's next allegation of error concerns the trial court's admitting into evidence the testimony of a Kentucky State Police Crime Laboratory technician who had earlier submitted to the Jefferson County Police Department a report of the results of scientific tests performed on various bodily samples taken from the appellant and the prosecuting witnesses. Appellant argues that since he was not furnished this report until the day of trial, although he had previously requested it through a motion to produce, inspect and copy pursuant to RCr 7.24, the admission of the technician's testimony elaborating on the contents of the report was prejudicial error. We have studied the results of the tests as reported by the technician in his testimony and cannot find the untimely furnishing of this report to appellant's counsel to have so prejudiced his right to a fair trial as to warrant reversal of his conviction. As we read these findings, they are inconclusive in regard to connecting appellant to the crime against Deborah Wise. Moreover, the record of the in-chambers hearing on appellant's objection to the introduction of this testimony does not establish any intentional withholding of the report from appellant's counsel by the attorney for the Commonwealth. Rather, that transcript establishes that although the report was received by the police department approximately two weeks earlier, it was not made available to either side prior to trial, the Commonwealth first becoming aware of its existence during a telephone conversation occurring the morning the...