Turner v. Com., 88-SC-000020-MR

• Decision Date: 15 December 1988
• Docket Number: No. 88-SC-000020-MR,88-SC-000020-MR
• Citation: 767 S.W.2d 557
• Parties: Wesley N. TURNER III, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 557

767 S.W.2d 557

Wesley N. TURNER III, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 88-SC-000020-MR.

Supreme Court of Kentucky.

Dec. 15, 1988.

Rehearing Denied May 4, 1989.

Robert W. Baxter, Lexington, for appellant.

Frederic J. Cowan, Atty. Gen., Michael L. Harned, Asst. Atty. Gen., Frankfort, for appellee.

OPINION OF THE COURT

The appellant was convicted of first-degree rape and sentenced to 20 years' imprisonment. He was also convicted of first-degree sexual abuse and sentenced to 5 years to be served consecutively with the 20-year sentence.

He contends on appeal that the trial court erred by refusing his motion for a physical examination of the victim by his own experts, by excluding him from a hearing to determine the competency of the alleged child victim to testify, in its finding that the alleged victim was competent to testify, by failure to grant him a directed verdict on the charge of sexual abuse, and by permitting a conviction on both of the charges which arose out of one single incident.

The alleged victim was the appellant's four-year-old daughter. Her testimony was sufficient to permit a jury to believe that appellant made sexual contact upon her private parts with his hand and that he engaged in sexual intercourse with her. There was no error in the denial of a directed verdict. Likewise, we find no error in the conduct of the competency hearing or in the court's finding of competency.

We must reverse the judgment, however, for two reasons. First, there was only one incident about which testimony was offered. The evidence does not show that the sexual contact between the appellant's hand and his daughter's private parts was distinct and separate from the incident of rape. As far as we can discern from her testimony, physical contact was only incidental to the accomplishment of the rape, and therefore, the charge of sexual abuse merged into the charge of rape. The conviction of both offenses constituted double jeopardy, and the conviction for first-degree sexual abuse is reversed.

We also hold the denial of appellant's request for a physical examination of the alleged victim was a prejudicial error. Although we uphold the decision of the trial court as to the competency of the four-year-old child witness, and the sufficiency of her testimony to sustain the verdict, we note that her testimony occupied 60 pages of the transcript of record, much of which was rambling, and only a small portion of her testimony, in response to leading questions by the Commonwealth, was sufficient to sustain the conviction.

A most material element in the conviction was the testimony of Dr. Reva Tackett, a gynecologist, who had examined the alleged victim at the request of the Richmond Department of Social Services. She testified that the child, at the time of her examination, had injuries to the hymenal ring at the 3 o'clock, 5 o'clock, 7 o'clock, 9 o'clock, and 11 o'clock positions. Each of the injuries had healed and had formed scar tissue. Because of the healing, Dr. Tackett could express no opinion as to the age of the injuries.

Dr. Tackett acknowledged that small girls sometimes masturbate or insert foreign objects into their vaginas which rupture the hymenal ring, but she expressed the opinion that some of the injuries to the alleged victim were caused by penile penetration. She reached this conclusion, not from the nature of the injuries, but from their location on the hymenal ring. She testified that injury to the superior position of the ring would likely be caused by digital penetration or by the insertion of foreign objects, but that tears in the posterior section of the ring were probably the result of penile penetration. This is true, Dr. Tackett testified, because penile penetration involves entry from the posterior position with the pressure going downward toward the posterior vaginal wall.

Perhaps in the case of sexually active females a vaginal examination, remote in time from an allegation of sexual abuse, would reveal little of probative value as to whether sexual assault had occurred, but in the case of a four-year-old child, evidence of tears in the hymenal ring was a significant circumstance, and testimony that penile penetration caused the injury was a significant incriminating factor.

In this case, the alleged victim was only four years old. The physical examination of the child by an independent expert might have permitted the appellant to offer evidence to contradict that offered by the Commonwealth as to whether there were, in fact, any injuries to the hymenal ring. If such an injury was found, the examination by an independent expert may have enabled appellant to contradict testimony for the Commonwealth that the location of the injuries indicated the probability of penile penetration. In any event, the examination of the alleged victim by an independent expert and consultation with that expert as to the results of the examination would have been of material assistance to the appellant in his cross-examination of Dr. Tackett.

There does not appear to be any specific rule of criminal procedure concerning physical examination of prosecuting a witness which is directly applicable to this case. RCr 9.46 does permit the appointment by the court of expert witnesses in criminal cases. CR 35.01 provides that when the mental or physical condition of a party or a person in the custody or under the control of a party, is in controversy, the court may order a physical examination. The Commonwealth points out that this rule is not expressly applicable to this case because the four-year-old child is not a party nor is she under the control of a party.

We have approved orders that blood samples be produced for analysis in paternity cases, but this is required by statute, K.R.S. 406.081.

In some cases the physical condition of an alleged victim may, in itself, negate the fact that a particular crime has been committed. In a case such as this, the critical question is whether the evidence sought by the appellant is of such importance to his defense that it outweighs the potential for harm caused by the invasion of the alleged victim's privacy and the probability that the prospect of undergoing a physical examination might be used for harassment of a prosecuting witness.

We must be vigilant not to open the door to the opportunity for a defendant in a criminal case to invade the privacy of a prosecuting witness or to harass the witness. In this case, a physical examination of the four-year-old child might have disclosed evidence to completely refute the charge, and at the very least, would have been of enormous benefit to the appellant in the conduct of the trial. In our view, this out-weighs the potential for harm above expressed.

In these circumstances and limited to the facts of this case, we hold that appellant, as a matter of due process and fairness, was entitled at least to have the alleged victim examined by an independent gynecologist in preparation for trial.

The judgment is reversed for further proceedings consistent with this opinion.

GANT, LAMBERT, STEPHENSON and VANCE, JJ. concur.

STEPHENS, C.J., concurs in part and dissents in part by separate opinion in which LEIBSON, J., joins.

WINTERSHEIMER, J., dissents by separate opinion.

STEPHENS, Chief Justice, concurring in part/dissenting in part.

I join the majority insofar as it reverses appellant's conviction on double jeopardy grounds, and for denial of the appellant's right to a physical examination of the victim. However, I disagree with its finding no error in the conduct of the competency hearing. Appellant's conviction should be reversed because he was excluded, over objection, from an in-chambers hearing conducted to determine the alleged child victim's competency as a witness, in violation of the eleventh section of the Bill of Rights of the Kentucky Constitution.

In all criminal prosecutions the accused has the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor.

Ky. Const. sec. 11 (emphasis added).

The facts of this case require the Court to reconsider the scope of its holding in See v. Commonwealth, Ky., 746 S.W.2d 401 (1988). That case was this Court's first opportunity to consider the defendant's right to be present during a competency hearing after the United States Supreme Court rendered its decision in Kentucky v. Stincer, 482 U.S. 730, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987). In Kentucky v. Stincer, the Kentucky Supreme Court had reversed the defendant's conviction of sodomy of several children, because his exclusion from the competency hearing violated his right to confrontation guaranteed by both the sixth amendment to the United States Constitution and section eleven of the Kentucky Constitution. Stincer v. Commonwealth, Ky., 712 S.W.2d 939, 940 (1986). The United States Supreme Court granted certiorari on the sixth amendment grounds, and reversed the Kentucky Supreme Court. Kentucky v. Stincer, 107 S.Ct. at 2666.

Because [Stincer] had the opportunity for full and effective cross-examination of the two witnesses during trial, and because of the nature of the competency hearing at issue in this case, we conclude that respondent's rights under the Confrontation Clause were not violated by his exclusion from the competency hearing of the two girls.

Id. (emphasis added).

The United States Supreme Court did not hold that a defendant's exclusion from a competency hearing could never violate his or her confrontation rights under the Sixth...