Stokes v. Com.

• Decision Date: 18 December 2008
• Docket Number: No. 2007-SC-000006-MR.,2007-SC-000006-MR.
• Citation: 275 S.W.3d 185
• Parties: Stanley STOKES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

275 S.W.3d 185

Stanley STOKES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2007-SC-000006-MR.

Supreme Court of Kentucky.

December 18, 2008.

Emily Holt Rhorer, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.

Jack Conway, Attorney General, Julie Renae Scott, Assistant Attorney General, Office of the Attorney General, Criminal Appellate Division, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice NOBLE.

Appellant, Stanley Stokes, was convicted of two counts of sodomy and sentenced to thirty years in prison. On appeal, he claims the trial court erred by allowing the definition of a medical term to be read into evidence outside the context of an expert witness's testimony, and by answering a jury question during penalty phase deliberation. Finding no error requiring reversal, Appellant's conviction and sentence are affirmed.

I. Background

Appellant's son, Kevin Stokes, and his wife, Tracey, had custody of the minor child involved in this case, H. B., a twelve-year-old girl who was Tracey's adopted sister. On September 3, 2005, Kevin took H. B., her older sister, and his biological daughter to visit Appellant at his home. While the other two girls mowed the lawn, H. B. gave Appellant's dog a bath. Kevin and a friend, Ronnie Gibson, were working on a scooter in the garage, and Appellant was with them. Appellant later followed H. B. into the house and did not immediately come back out. Kevin then looked through a window to see where they were, and he testified at trial that he saw H. B. sitting in a chair with Appellant standing in front of her. Kevin opened the door and asked what was going on, at which time Appellant jumped back and Kevin saw Appellant pull his penis out of H. B.'s mouth. Appellant claimed that he was merely hugging the child, and indicated that it could be nothing more because he suffered from erectile dysfunction. When H. B. confirmed what Kevin had seen, Kevin beat Appellant, until Appellant nodded that he had acted as the child claimed, and Gibson dragged Kevin off Appellant.

H. B. claimed that Appellant had made her perform sex acts three or four times previously, and that the first time he had slapped her and threatened to force her if she did not do as he demanded. She claimed that Appellant held a knife to her throat and told her that if she told anyone, he would kill her and jeopardize her family. Further, she testified that Appellant did have an erection during the July incident.

Consequently, Appellant was charged with one count of first-degree sodomy and one count of second-degree sodomy. At trial, Kevin, H. B. and Gibson testified to the above events. Appellant testified in his own behalf, and raised as his defense that he could not get an erection due to impotence, and placed into evidence his medical records concerning this health problem, which indicated that he had been seeing a urologist for this condition off and on since 1994. Those records indicated that no physical cause for Appellant's dysfunction could be found, and that the doctor thought the problem was probably "psychogenic." The records also indicated that, on occasion, Appellant was able to function sexually. Appellant, however, claimed that by 1996, he could not achieve an erection at all.

During rebuttal, the Commonwealth asked to be allowed to read the definition of "psychogenic" from an unnamed medical dictionary as a learned treatise pursuant to KRE 803(18). Defense counsel objected that under the rule, a learned treatise must be introduced through an expert witness. In response, the Commonwealth replied that the trial court could simply take judicial notice of the definition.

The trial court ruled that no expert would be required if it took judicial notice that the dictionary was a learned treatise, to which defense counsel again made proper objection and moved for a mistrial, which was overruled. The trial court then informed the jury that it was recognizing "this book," which still remained unidentified, as a learned treatise, and that what the Commonwealth was going to read was reliable and could be considered during deliberations. The Commonwealth then defined psychogenic as "produced or caused by psychological factors."

In closing, the Commonwealth argued that Appellant's dysfunction "related to a psychological type of problem, in his head," as there was nothing physically wrong with Appellant, including his testosterone levels. The Commonwealth pointed out that the medical records indicated that as of February 1995, Appellant had had intercourse three or four times and, "Gets good erections when he is able to have intercourse." The prosecutor then argued that Appellant was dysfunctional "because adult women do not sexually arouse him.... He is aroused by little girls." The defense objected that there was nothing in the medical records to support this argument, nor had there been any testimony to that effect. Nonetheless, the trial court ruled, over the defense's objection, that this statement was "a rational, reasonable inference." On further complaint, the trial court then told the jury it could "draw any reasonable inference from the evidence that's been presented.... That's for you to decide, you make the decision yourself."

Appellant was convicted of both charges, and the jury recommended the maximum sentence on each. The trial court imposed a sentence of twenty years on first-degree sodomy and ten years on second-degree sodomy, and ran them consecutively for a total of thirty years. This appeal followed as a matter of right.

II. Analysis

A. Learned Treatise and Judicial Notice

Appellant argues that the trial court abused its discretion by taking "judicial notice" of a medical dictionary as a "learned treatise." While there is much confusion of terms here, the trial court committed no error when it allowed the Commonwealth to read a definition of "psychogenic" into the record.

Under KRE 803(18), known as the learned treatise rule, statements from such a document are not excluded by the hearsay rules, even though the declarant is not available as a witness, when these statements are used in questioning an expert witness, either on direct or cross, if the statements are established as a reliable authority either by the witness, other expert testimony, or by judicial notice. The judicial notice used in this rule goes only to whether the document is a reliable authority, not that the statements read are adjudicative facts. As always, the weight of the authority must be determined by the trier of fact.

Judicial notice under KRE 201, however, concerns only adjudicative facts. KRE 201(a). If a fact is judicially noticed under this rule, the jury must be instructed to accept such fact as conclusive. KRE 201(g). To be properly judicially noticed, the fact must not be subject to reasonable dispute, because it is generally known or can be determined by resort to sources whose accuracy cannot be reasonably questioned. KRE 201(b).

Here, Appellant was allowed to introduce his medical records regarding his treatment over a number of years for erectile dysfunction, by which he bolstered his defense that H. B. was lying, that he was incapable of an erection, and that he had only been giving her a hug. The records, however, also indicated that he had been able to occasionally have intercourse with an erection, and that his problem was probably psychogenic. What the Commonwealth wanted to do, though it couched its request as recognition of a learned treatise, was ask the court to take judicial notice of the definition of "psychogenic" and to read the definition to the jury as an adjudicative fact to establish that Appellant's dysfunction was psychological rather than physical.

A trial court may take judicial notice of the definition of a word as an adjudicative fact where the definition of a term is indisputable, that is, where it is "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." KRE 201(b)(2). Essentially, KRE 201 allows judicial notice to be taken of "facts `which can be determined from unimpeachable sources.'" Robert G. Lawson, The Kentucky Evidence Law Handbook § 1.00[3][c], at 10 (4th ed.2003) (quoting 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 51 (2d ed.1994)). As Professor Lawson has noted, such sources include general authorities such as "encyclopedias, calendars, maps, medical and historical treatises, almanacs, and public records." Id. Beyond doubt, dictionaries fall within the same class of "unimpeachable sources," and thus the definitions contained in them may be judicially noticed, so long as they are indisputable. See Comerica Bank v. Lexington Ins. Co., 3 F.3d 939, 944 (6th Cir.1993) (holding that district court was within its discretion to take judicial notice of the dictionary definition of a word); B.V.D Licensing Corp. v. Body Action Design, Inc., 846 F.2d 727, 728 (Fed.Cir.1988) ("Courts may take judicial notice of ... dictionaries."); Richard H. Underwood & Glen Wissenberger, Kentucky Evidence 2005-2006 Courtroom Manual 44 (2005) ("Judicial notice is taken of the English language.... Representative authoritative sources for verification [of facts] include such materials as historical works, science and art books, language and medical journals and dictionaries, calendars, encyclopedias ...." (emphasis added)); see also Werk v. Parker, 249 U.S. 130, 132-33, 39 S.Ct. 197, 63 L.Ed. 514 (1919) ("We deem it clear, beyond question ... that the court was justified in taking judicial notice of facts that appeared so abundantly from standard works accessible in every considerable library."); Samuel A. Thumma and Jeffrey L. Kirchmeier, The Lexicon Has Become a Fortress: The United States Supreme Court's Use of Dictionaries, 47 Buff. L.Rev. 227, 248 (1999) (noting that "by 1920, the [Supreme] Court had decided that taking judicial notice of dictionary...