McCullum v. Commonwealth | Unpublished Unpublished Unpublished | February 23, 2006 | Joe Srednicki

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McCullum v. Commonwealth

Original Creator: Jeannie Suk Current Version: Joe Srednicki
1

SAMUEL EARL MCCULLUM, APPELLANT

2

V.

3

COMMONWEALTH OF KENTUCKY, APPELLEE. 

4

2002-CR-1234

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APPEAL FROM JEFFERSON CIRCUIT COURT

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HONORABLE LISABETH HUGHES ABRAMSON, JUDGE

7

 

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MEMORANDUM OPINION OF THE COURT REVERSING

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Appellant, Samuel Earl McCullum, was convicted in the Jefferson Circuit Court of first-degree Sodomy and first-degree Unlawful Imprisonment and Possession of a Firearm by a Convicted Felon. He was sentenced to thirty-five (35) years in prison and appeals to this Court as a matter of right. For the reasons set forth herein, we reverse Appellant's convictions and remand for a new trial consistent with this opinion.

10

FACTS

11

On Sunday, May 19, 2002, the Appellant encountered the victim, hereinafter referred to as "A.J.," at the bus stop on the corner of 18th and Broadway in Louisville. A.J., who testified she was waiting for a bus to take her home after spending the night with a friend, arrived at the bus stop at approximately 7:45 a.m. (though the bus was not scheduled to arrive until 8:30 a.m.). Appellant was traveling from his home in Jeffersonville, Indiana to his auto repair business on Dixie Highway. On the way he drove past A.J. Mistakenly believing he recognized her, he returned to the bus stop -- then realized he was wrong. Nonetheless, he offered A.J. a ride, which she accepted. They drove to within two houses of her residence, when she indicated she did not want to get out of the car and asked Appellant to take her to the White Castle restaurant so she could get something to eat. Appellant complied, but told A.J. he needed to stop by his business, The Tool Box, for a few minutes to print some paperwork. A.J.'s and Appellant's versions of the story are much the same up to this point, but from here on, they diverge -- with A.J.'s version detailing a day of forcible rape and sodomy -- while Appellant's version reflects a day of consensual sex.

12

A.J. testified that once the pair arrived at The Tool Box and after she had finished eating her White Castle meal, she was raped three times by Appellant and held against her will, bound with chains and duct tape, for approximately seven and one-half hours and then forcibly sodomized after making a 911 call, but before rescue by the police. A.J. testified she was raped twice downstairs and then a third time in the upstairs portion of the building, all occurring by approximately 9:30 a.m.

13

She testified after the third rape and after returning downstairs, Appellant came in and out of the room she was in and, on one of these trips, bound her to a pole with duct tape and then left again. However, she was able to free herself. When Appellant returned the next time, he bound her again with the duct tape, using more and this time covering her mouth and wrapping it around her head. Nonetheless, she was once again able to free herself.

14

Because A.J. was able to escape again, Appellant wrapped a chain around her neck and waist and padlocked her to the pole. He then duct-taped her and put a rag in her mouth. She testified that once Appellant left again (this time for approximately one hour and forty-five minutes) she was again able to free herself and dialed 911 on her cellular telephone.[1] She testified that during the call, she heard the door open so she threw the phone down, without disconnecting the call, and sat back down by the pole.

15

A.J. testified Appellant then re-entered the room and stated that he knew she would get out and that he had gone home to take care of some business. According to A.J., Appellant again wanted to engage in sexual relations with her. She testified that he unzipped his pants, took out his penis and demanded she put it in her mouth; A.J. refused, the Appellant slapped her, told her not to say what she would not do, and grabbed her by the neck and forced his penis in her mouth. This, according to A.J., caused her to vomit. Appellant was displeased and told her to lie down and he proceeded to get on top of her. At that point, they heard loud knocking on the door. Appellant immediately jumped up and chained her back against the pole. The loud knocking turned out to be the police responding to the 911 call.

16

Appellant's version of the story is quite different. He testified that A.J. was eating her food and he was going over an ignition circuit diagram for a car he was working on. He stated that he first initiated sex with A.J. by placing his hands on her thighs and she reciprocated by doing the same to him. This led to sexual intercourse. Shortly thereafter, the pair engaged in sexual intercourse again in the same office. He stated that the third occasion of sexual intercourse occurred after A.J. expressed curiosity in an upstairs office and the pair went up to that office.

17

Appellant testified that A.J. smoked a cigar on numerous occasions during the day. At one point he observed her hollowing a cigar out and inquired of her what she was doing. A.J. replied she was "freaking it," or removing the filter and tobacco and replacing it with marijuana. He testified that the second time she smoked one of her cigars, he could smell marijuana.

18

Appellant testified that during one of their conversations, A.J. asked him if he had ever been handcuffed. He said he had experimented with an old girlfriend, but was "not into it." He advised A.J. to use silk scarves, etc., rather than metal handcuffs. The use of the duct tape, however, began when he introduced A.J. to what he called "the kissing game." According to Appellant, part of the game was to kiss the other person on different parts of the body without using the hands in any way. When A.J. kept using her hands, he wrapped them together with the tape. A.J. participated willingly and was able to pull her hands apart afterward. He testified that she asked him if she could do the same to him and he declined.

19

Appellant testified that A.J. had brought up the subject of money for sex on two occasions. First, she told him that she was supposed to be braiding her aunt's hair for which she would get $25.00. She asked Appellant if he would give her $25.00. Appellant told her he would and interpreted the request as payment for sex since she had waited until after the sex to make the request. Second,
A.J. asked Appellant if he would take her to the Jefferson Mall. He responded that he could do that later. A.J. told him a long list of things that she wanted him to buy for her. Appellant testified that he had no intention of buying the things A.J. wanted. It was after this discussion that A.J. mentioned her upcoming graduation from high school. Appellant testified that he sensed something was wrong, as A.J. had earlier told him she was 21 years old, and then, later told him she was 18 years old.

20

Appellant testified that once A.J. realized he was not going to take her to the mall and buy her the things she wanted, she threatened to call the police and say she was only seventeen and Appellant had raped her. Appellant testified that he panicked upon hearing the threat and led A.J. to a back room where he taped her to the pole; Appellant did not use the chains which were in the room. Appellant testified he taped A.J. to the pole to give her time to cool off.

21

At this point, Appellant testified that he received a phone call and traveled to his home in Jeffersonville, Indiana, returning to The Tool Box approximately 45 minutes later. When he returned, A.J. had freed herself from the duct tape. She asked him how long he had been gone and said that she had been calling for him. He testified that she was aggravated that he had left.

22

Appellant stated that the conversation again led to sex. A.J. was the aggressor this time, performing oral sex on Appellant. Appellant had no idea A.J. had already made a 911 call and given her general location.

23

During all this, Louisville Metro Police Officer Heather Boggs arrived on the scene, unsure at that time if the location was that of the 911 call, as A.J. had put the phone down before she could give her exact location. Officer Boggs believed she may have found the location, one fitting the description given by A.J. She noticed the gate to The Tool Box was open. This was unusual because it was Sunday and she had observed the business to be closed on the prior Sunday. Because the 911 call had not been disconnected, the dispatcher, Melissa Harley, could assist the officer in determining that she was at the correct location. Specifically, the officer inquired as to whether the dispatcher could hear her knocking and kicking on the shop doors and whether the dispatcher could hear the barking dogs inside the shop. The dispatcher confirmed she could hear the knocking as well as the barking dogs.

24

As Officer Boggs was attempting to gain entry into the shop, Officer Darren Utsey arrived. Both he and Officer Boggs continued kicking on doors until Officer Utsey managed to kick one open. At that time, Officer Boggs returned to her cruiser to retrieve a flashlight so the officers could make their way through the building. By the time the officers were just inside the door, they were met by the Appellant.

25

The officers informed Appellant they were responding to a 911 call and needed to confirm that everything was alright. Appellant told the officers that he and his girlfriend were fighting and it was probably a "crank call."

26

Appellant walked them through the building and told them of A.J.'s presence and that she wanted to "play this game." As they continued through the building, they heard a scream from another room leading the officers to immediately handcuff Appellant. By this point, a third officer, Detective Finch, had arrived on the scene. Officer Utsey remained with Appellant, while the other officers continued the search for the then unknown 911 caller.

27

Ultimately, the officers located A.J. in a small room in the back of the building. When they found her, she was crying and appeared "clearly in absolute distress." She was duct taped with a chain around her neck and padlocked to a pole. She was seated with her pants pulled down to her ankles. After her release from the chain and duct tape, A.J. informed the officers that the Appellant had a gun. The officers located a loaded handgun in the office near his briefcase.

28

Appellant admitted using duct tape on A.J., but denied binding her with the chains. He stated the chains were in the room with A.J. when he left to see what the police were doing but that he did not know how the chain got on her.

29

A.J. was transported to the hospital where she was seen by Dr. Lisa Reynolds. Dr. Reynolds collected "rape kit" evidence from A.J. to compare with evidence from the Appellant.[2]

30

As part of the investigation, Appellant's business computer was seized as evidence. This led to the discovery that on May 19, 2002, someone accessed a video clip entitled "Asian - Two Guys Rape Japanese Girl." Specifically, the video was accessed at 10:02 a.m. that day, after the three initial sexual encounters, but before the alleged implementation of the duct tape, chain and sodomy.

31

Also, a day planner/calendar or "diary" was retrieved from a purse belonging to A.J. The "diary" included numerous entries detailing A.J.'s sexual exploits and personal drug use. The diary noted the name and the date of the sexual encounters and in one instance detailed their financial nature.

32

A.J.'s cell phone records were obtained and revealed several incoming calls to the phone on May 19, 2002, beginning at 10:23 a.m. One of the calls was four minutes in duration and originated from A.J.'s friend Corey Brown, with whom she had spent the previous night.

33

At trial, Appellant moved to introduce the "diary" belonging to A.J. However, the trial court denied the defense's motion. The trial court, however, over Appellant's objection, admitted the testimony by Detective Kevin Lamkin as to the computer "rape" video, even though it had previously ruled it inadmissible.

34

The trial court's ruling of admissibility was premised on the basis that Appellant had opened the door when he stated he only did work on his computer that day.

35

After deliberations, the jury returned not guilty verdicts on the three rape charges, but guilty on the Sodomy and Unlawful Imprisonment. In the sentencing phase, the jury returned verdicts recommending the maximum sentence of 20 years for Sodomy and 5 years for Unlawful Imprisonment.

36

Thereafter, Appellant also entered a plea of guilty to Possession of a Firearm by a Convicted Felon. His later motion to amend the guilty plea to an "Alford" plea was denied and Appellant was sentenced to the maximum 10 years on the firearm charge. All sentences were ordered to be served consecutively for a total of 35 years imprisonment. Appellant appeals his convictions.

37

He claims the trial court: (1) erred in instructing the jury; (2) erred in ruling Appellant could be impeached by a 19-year-old conviction from New Jersey; (3) erred by allowing the Commonwealth to present evidence of the "Asian Rape video"; (4) erred when it refused introduction of A.J.'s "diary" into evidence; and (5) erred when it refused to allow Appellant to withdraw his guilty plea and substitute an "Alford" plea. We will address each claim of error separately.

38

PROPOSED JURY INSTRUCTIONS

39

Appellant's first claim of error arises from the instructions submitted to the jury upon the close of evidence at trial. Appellant claims the trial court should have adopted his version because his proposed instructions more accurately reflected the proper allocation of the burden of proof. The trial judge rejected the tendered written instructions stating that she was going to use "what I always use in criminal cases," that is, instructions that are "right out of Cooper." Appellant claims that the rejected instructions were actually similar to the language contained in 1 Cooper, Kentucky Instructions to Juries (Criminal), §§ 2 .10A- 2.01D, pp. 67-68 (4th ed. Anderson 1999) (hereinafter Cooper). We disagree.

40

Appellant's proposed jury instructions were phrased to read, "You will find the Defendant, Samuel McCullum, not guilty of ... under this instruction unless and only if, you believe from the evidence beyond a reasonable doubt all of the following...." The instructions actually given provided that the jury "will find the Defendant, Samuel McCullum, guilty under this Instruction if and only if, you believe from the evidence beyond a reasonable doubt ..." Further, Instruction No. 1 specifically put the jury on notice that it could find the Defendant not guilty, or could find him guilty. Instruction No. 7 notified the jury of the presumption of innocence, and specifically stated:

41

"The law presumes a defendant to be not guilty of a crime and the indictment shall not be considered as evidence or as having any weight against him. You shall find the defendant not guilty unless you are satisfied from the evidence alone and beyond a reasonable doubt that he is guilty. If upon the whole case, you have a reasonable doubt that he is guilty, you shall find him not guilty."

42

In comparing the proposed instructions and those submitted to the jury, it is clear that the trial court provided the jury with proper instructions. Moreover, the "Cooper instructions" are worded just as those submitted by the trial judge. As such, we find no error in the trial court's jury instructions.

43

MCCULLUM'S 19-YEAR-OLD CONVICTION

44

As his second claim of error, Appellant argues the trial court abused its discretion by admitting evidence of his 1984 New Jersey conviction for second-degree sexual assault.

45

Appellant claims the prejudice resulting from his impeachment by a 19-year-old prior felony conviction was not substantially outweighed by any probative value the conviction may have possessed, even though the jury was not informed of the nature of the prior conviction.

46

KRE 609(b) provides:

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(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten (10) years has elapsed since the date of the conviction unless the court determines that the probative value of the conviction substantially outweighs its prejudicial effect.

48

The balancing of the probative value of such evidence against the danger of undue prejudice is a task properly reserved for the sound discretion of the trial judge. Rake v. Commonwealth, 450 S.W.2d 527, 528 (Ky.1970). And such decisions of the trial court will not be overturned on appeal absent an abuse of that discretion. See Partin v. Commonwealth, 918 S.W.2d 219, 222 (Ky.1996).

49

Here, the trial judge held:

50

"Well, let me state this ruling differently. The probative value of the conviction substantially outweighs its prejudicial effect. The New Jersey case was essentially for the same type of conduct that's on trial here. And there was a conviction in that case. It's an adjudicated conviction. It's a jury verdict. Okay, here we are, once again, in front of a jury. And once again, Mr. McCullum's charged with the same type of conduct. And once again, presumably he denied it last time or he wouldn't have gone to trial. And it's being denied this time. I think it's highly probative. I think it's a prime example of what 609(b) was designed for, which was to state a ten-year guideline generally, but to give the trial judge discretion, if they think it has probative value. And in my exercise of discretion, I conclude that it does have probative value because his whole defense here is that this was all voluntary acts, as I understand it, on the part of the victim. And I think under those circumstances, when he's got an adjudicated determination that conduct occurred in the past and he was guilty of it, I don't see any reason why this jury shouldn't hear that he's been convicted of a felony. Now, once he acknowledges the felony conviction, under our rules, that's the end of it. They won't hear what it was for unless there's some manner in which he opens the door."

51

This "similarity rationale" is suggestive of a propensity analysis - he did something like this before, thus it is believable he would again - but the rationale is violative of the principles enunciated in KRE 404(b). "Courts have universally agreed for more than a century that evidence of other crimes, wrongs, or bad acts cannot be used to prove a defendant's propensity to commit crimes in order to show that he or she committed the charged crime." R. Lawson, The Kentucky Evidence Law Handbook, §2.25 [2], p.124 (4th ed. 2003).

52

Under KRE 609 (a) and (b), the nature of the charge is not disclosed; nor was the jury otherwise advised here. Thus, the conviction wasn't admitted to show "propensity," but to show the Appellant wasn't a trustworthy or truthful person. In this regard, it seems the probative grounds weighed in the analysis must be relevant under KRE609(b). Propensity's inadmissibility under KRE 404(b) suggests it should not be a relevant consideration under KRE 609(b). And as credibility appears to be the focus under KRE 609(b), there must besome intended correlation between the aged conviction submitted and the credibility of the witness.

53

When a trial court is charged with determining admissibility of an aged conviction, "[t]he balancing test that is normally used to determine admissibility (KRE 403) is turned on its head and trial judges are directed to tilt strongly in favor of excluding such convictions." Lawson, supra, § 2 .25[2], at 318.[3]

54

"The age of a conviction (its recentness or remoteness to the date of trial) has always been viewed as a factor bearing on its probative value, because the conviction is admitted as proof of the witness' character for truthfulness as of the time of his or her testimony at trial." Id. at 317. Thus, this Court has upheld the admissibility of a 13-year-old conviction, but we have also held a 17-year-old conviction inadmissible ...." Brown v. Commonwealth, 812 S.W.2d 502, 503 (Ky. 1991) (held error to admit 22-year-old conviction), overruled on other grounds by Stringer v. Commonwealth, 956 S.W.2d 883 (Ky. 1997).

55

More recently, we have recognized that the impact of a witness' testimony is a factor in the probative balancing under KRE 609(b). Miller ex rel. Monticello Banking Co. v. Marymount Medical Center, 125 S.W.3d 274 (Ky.2004). Another factor in the probative balancing would be the nature of the prior conviction, e .g., "....[a] conviction for burglary is a crime of dishonesty that .... would be more probative of untruthfulness than a conviction of e.g., rape." Id. at 284 -85 (trial court properly admitted evidence of Plaintiff's 10-plus-year-old burglary conviction) citing Commonwealth v. Richardson, 674 S.W.2d 515, (Ky. 1984); a holding suggestive of a more stringent relevancy to an untruthfulness requirement under KRE 609(b).

56

In Cotton v. Commonwealth, 454 S.W.2d 698, 701 (Ky.1970), we held "that except for felonies involving dishonesty, fraud, false swearing or theft, the prejudice outweighed the impeachment value of such proof." Richardson at 518. Richardson overruled Cotton and is the basis for KRE 609(a), but it is not the basis for KRE 609(b).

57

We have always retained a belief that "[t]he device of admitting past felony convictions that are not actually related to the issue of credibility is unnecessary and unfair." Cotton at 701; cf. Miller at 284-85 ("a conviction for burglary is a crime of dishonesty"). This is KRE 609(b) - and the farther away the age of the conviction is from the 10 year floor of KRE 609(b) - the stronger our conviction.
Having considered the matter, we do not believe that the "similarity" in convictions - which is more akin to a "propensity analysis" --is a proper ground upon which to weigh the probative value of the aged conviction. It is just too much like the "lustful inclination" analysis disapproved under Pendleton v. Commonwealth, 685 S.W.2d 549, 552 (Ky.1985), and does not reflect well on the age analysis of the older convictions. Cf. Brown, at 203. The more attenuated the conviction, the more relevant the balance tested probative issue should be to the central issue of untruthfulness. "As a conviction recedes into the past, the value on the issue of credibility wanes proportionately, while its prejudice as to guilt is less easily dispelled." Sommers v. Commonwealth, 43 S.W.2d 879, 887 (Ky. 1992) (17-18 year-old felony held error).

58

Ultimately, when a trial court is faced with determining the admissibility of a stale conviction (significantly older than the 10 year minimum floor for KRE 609(b)), it must evaluate the nature of the crime committed and determine if that crime is one that is indicative of untruthfulness. If the trial court finds the conviction to be for a crime that reflects on the untruthfulness of the witness, then the trial court must use its discretion to further determine if the probative value of that conviction on the issue of untruthfulness substantially outweighs its prejudicial effect. Obviously, some crimes will be more probative than others - depending on the nature of the crime. And other factors, such as the value of the witness' evidence to the case, should be considered. But the ultimate answer to most KRE 609(b) questions on significantly older cases will be resolved properly by analyzing the relationship of conviction to the issue of untruthfulness along with consideration of the age of the case versus its prejudicial effect.

59

As the grounds weighed here in regards to its probative value dealt only with "propensity"- and this was a 19-year-old conviction - we find the KRE 609(b) balancing analysis was improper; thus there was an abuse of discretion and error; error which, under the circumstances of this case, we cannot say was harmless.

60

TESTIMONY REGARDING "RAPE" VIDEO

61

Appellant also argues the trial court abused its discretion when it allowed testimony regarding the "rape video" found on his computer.

62

At pretrial, the court held the video would not be admissible. However, during cross-examination, the Commonwealth asked Appellant about his use of the computer at the shop on the day of the incident. When he explained that he had used the computer to view diagrams of the car he was working on that day and later affirmed he did not think he had used the computer for any other purpose that day, the Commonwealth pounced on the Appellant's testimony and informed the court that it then intended to impeach Appellant's testimony regarding the computer usage on the day in question by pointing out the access of the "rape video."

63

Two theories were then offered for admitting evidence of the video. First, the evidence was admissible for impeachment purposes --Appellant testified he only used the computer for work-related activities. Second, the video demonstrated "preparation" for his sexual acts against A.J., as well as intent. Over Appellant's objection, the trial court then ruled Appellant had "opened the door" by testifying the computer was only used for business purposes. Additionally, the trial court ruled the evidence was admissible under KRE 404(b) to show "preparation" and "intent." In making its determination, the trial court concluded, however, that it would not allow the Commonwealth to play the video for the jury as it would be too prejudicial. It limited the evidence to the fact that this "rape video" had been accessed.

64

Thus, Detective Kevin Lamkin, the Commonwealth's computer forensic analyst, was permitted to testify that his examination of the hard drive on the computer revealed that on May 19, 2002, at 10:02 a.m., someone accessed and opened a 30-second-long movie file entitled "Asian-Two Guys Rape Japanese Girl." However, he could not testify as to who viewed the file. Interestingly enough, according to A.J.'s testimony, the video was said to have been viewed after the completion of the rapes and nearly six hours prior to the sodomy. The issue then, is whether the trial court "abused its discretion" by admitting evidence of the "rape video" at trial. See Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999).

65

The rules of evidence are quite clear that a trial court is free to reconsider its prior rulings on motions in limine. KRE 103(d) ends its discussion of such motions by matter-of-factly stating "Nothing in this rule precludes the court from reconsidering at trial any ruling made on a motion in limine."

66

Plainly, however, the "rape video" was not admissible as evidence of "preparation or intent" as described in KRE 404(b); such a holding in matters such as this would broaden KRE 404(b) beyond recognition. Even so, if this evidence fell under the province of KRE 404(b), the Commonwealth would not have acquiesced in the Appellant's original motion to suppress in the first place. It was correct the first time - this is not proper evidence of "preparation" or "intent." What this evidence would do -- is show Appellant's "lustful inclinations." In Pendleton, 685 S.W.2d at 552, we held evidence tending only to prove a "lustful inclination" is not admissible.

67

Moreover, it has been a long-standing principle in our jurisprudence that impeachment on collateral facts is not a proper basis for admitting otherwise inadmissible evidence." A prosecutor cannot make improper inquiries about collateral matters on cross-examination and then introduce otherwise inadmissible evidence in rebuttal under the guise of impeachment." Purcell v. Commonwealth, 149 S.W.3d 382, 397 (Ky.2004); citing Stansbury v. United States, 219 F.2d 165, 168-71 (5th Cir. 1955).

68

"A witness may not be impeached on matters that are irrelevant or collateral to the issue being tried. Incompetent evidence cannot be made the foundation for impeachment of a witness. A witness's answers to questions relating to his previous conduct are regarded as so far collateral that they cannot be contradicted by the party cross-examining unless they go to matter which the law permits to be shown for the purpose of impairing credibility."

69

Id. (quoting Keene v. Commonwealth, 307 Ky. 308, 210 S.W.2d 926, 929 (1948).

70

"Although there is no provision in the Kentucky Rules of Evidence prohibiting impeachment on collateral facts, we have continued to recognize the prohibition as a valid principle of evidence." Id. at 397-98 (citing Neal v. Commonwealth, 95 S.W.3d 843, 849 (Ky.2003); Slaven v. Commonwealth, 962 S.W.2d 845, 858 (Ky.1997); Eldred v. Commonwealth, 906 S.W.2d 694, 705 (Ky.1994), abrogated on other grounds by Commonwealth v. Barroso, 122 S.W.3d 554, 563-64 (Ky. 2003)).

71

In Purcell, this Court noted that Professor Lawson suggests that the issue is more properly decided by applying the KRE 403 balancing test, i.e., weighing the probative value of the impeachment against the prejudicial effect of the evidence and its possible confusion of the issue and that it would be a rare occurrence, when the prejudicial effect of the evidence of "other bad acts" would not substantially outweigh the impeachment value of such evidence. Id. at 398 (citing Lawson, supra, §4.05 [3], at 276. Plainly, in this instance, this was a collateral matter to which the Appellant was not subject to impeachment on extrinsic evidence. Whoever did access the "rape video" apparently did so after the alleged rapes for which Appellant was acquitted, but almost six hours prior to the sodomy for which he was convicted.

72

We find the trial court committed error by admitting the "rape video" into evidence and it was not harmless.

73

A.J.'s "DIARY"

74

Appellant further claims the trial court erred by depriving him of the right to present a defense when it refused to permit the introduction of A.J.'s day planner/calendar or "diary" into evidence.

75

A.J.'s "diary" contained 63 entries made by her between January 2, 2002 and May 18, 2002. Thirty-one of the entries had to do with sexual encounters with named individuals, including entries documenting sex with multiple partners on the same day, as each of these entries were symbolized "HSW." One of the entries noted the "$" symbol.[4]

76

Subsequent to the admission of the "Rape video," the appellant moved the trial court to admit the diary 'into evidence as it was relevant to support his contention that (1) A.J. was expecting money in exchange for sex and, thus, was a defense to the allegations of rape and sodomy to punish him for not giving her money or taking her shopping at the mall,[5] and (2) to refute the natural tendency to believe that it would have been Appellant that accessed the "rape video" - rather than A.J. (the minor female), whose sexual proclivity appears from a review of the diary (a female child is presumed not to be sexually active - Barnett v. Commonwealth, 828 S.W.2d 361, 363 (Ky.1992)).

77

The trial court, however, denied Appellant's motion to admit the "diary" holding that it was irrelevant and inadmissible and did not meet any of the three exceptions in KRE 412 (the Kentucky Rape Shield Rule). The Appellant then tendered the "diary" as an avowal.

78

KRE 412 exists to generally prohibit admission of evidence of prior sexual conduct of a complaining witness to insure that a victim does not become the party on trial through the admission of evidence that is neither material, nor relevant to the charge made. The rule does not prohibit the introduction of relevant, probative evidence at trial, if the evidence of prior sexual conduct directly pertains to the crime with which the defendant is charged. Barnett at 363 (citing former KRS 510.145, repealed by 1990 Ky.Acts, ch.88, §92, eff. July 1, 1992, and Bixler v. Commonwealth, 712 S.W.2d 366 (Ky.App.1986)).

79

The goal of KRE 412 is to protect victims of sex crimes against embarrassing and humiliating disclosures about private sexual activities. The rule is crucial in protecting victims from being prosecuted and even persecuted by defendants who attempt to draw attention from their own alleged crimes by making the victim look like the criminal. KRE 412 permits admission of evidence of an alleged victim's past sexual history only after the proffered evidence is determined to fall under one of the three narrow exceptions to KRE 412 and after determination is made by the trial court that the prejudicial effect is substantially outweighed by the probative value, as required by subsection (c).[6] R. Lawson, The Kentucky Evidence Law Handbook, at 168-70.

80

To be admissible, evidence of an alleged rape victim's behavior must be: (1) evidence of past sexual behavior with persons other than the accused, offered by the accused upon the issue of whether the accused was or was not, with respect to the alleged victim, i.e., the source of semen or injury; (2) evidence of past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior with respect to which an offense is alleged; or (3) any other evidence directly pertaining to the offense charged. KRE 412(b).

81

The drafters of this third exception, KRE 412(b)(1)(C), noted, "it recognizes the difficulty of anticipating every circumstance in which evidence of a prior sexual conduct may have a necessary and proper role in a case other than as evidence of an alleged victim's character." Id. at 113. "It is, in other words, a safety valve, albeit one that needs to be administered `carefully and sparingly' [and without violating] the objective of protecting against unwarranted attacks on the character of an alleged victim." Id. at 166 (citing Evidence Rules Study Comm., Ky. Rules of Evidence - Final Draft, p. 36 (Nov. 1989)).

82

Notably, the Federal Rape Shield Rule (FRE 412) has the same exception, yet with somewhat different language. It allows "evidence the exclusion of which would violate the constitutional right of the defendant." FRE 412 (b)(1)(C). KRE 412(b)(1)(C) and FRE 412(b)(1)(C) serve essentially the same function, as the U.S. Supreme Court has held that a criminal defendant has a constitutional right to "a meaningful opportunity to present a complete defense." California v. Trombetta, 467 U .S. 479, 485, 104 S.Ct. 2528, 2533, 81 L.Ed.2d 413 (1984). "...[R]estrictions on a criminal defendant's right to confront adverse witnesses and to present evidence may not be arbitrary or disproportionate to the purposes they are designed to serve." Rock v. Arkansas, 483 U.S. 44, 55-56, 107 S.Ct. 2704, 2711, 97 L.Ed.2d 37 (1987).

83

Pursuant to the Sixth and Fourteenth Amendments to the United States Constitution and Section 11 of the Kentucky Constitution, a criminal defendant is guaranteed the right not only to confront witnesses against him, but also to compel witnesses in his favor. "[T]he exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination." Olden v. Kentucky, 488 U.S. 227, 231, 109 S.Ct. 480, 483, 102 L.Ed.2d 513 (1988).

84

Olden involved a Caucasian woman allegedly raped by the defendant, who was African-American. She first reported being raped to her friend, with whom she was visiting, when dropped off at his house by the defendant. The friend, also an African-American male, had come out on his porch, just as she got out of the defendant's car.

85

At the time of the trial, she had separated from her husband and was living with this friend (who had also separated from his wife), and the defendant sought to introduce their co-habitation as part of his defense that she had fabricated the rape charge to protect her then future, and now present, relationship with this other man. Interestingly enough, this Court (then the Kentucky Court of Appeals) held this evidence of a fabrication was not barred by Kentucky's Rape Shield Law [then KRS 510.145 (Michie, 1985)]. However, it was excluded by this Court upon the finding that "[t]he defendant's right to effective cross examination was outweighed by the danger that revealing [her] interracial relationship would prejudice the jury against her." Id. at 232.

86

In finding the exclusion erroneous, the U .S. Supreme Court stated, "While a trial court may, of course, impose reasonable limits on defense counsel's inquiry into the potential bias of a prosecuting witness, to take account of such factors as `harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that would be repetitive, or only marginally relevant, .... the limitation here was beyond reason'." Id.

87

In finding that the error was not harmless, the Court stressed "the central, indeed crucial" role her testimony played in the prosecution, since she was the only witness/victim. Id. at 233. In addition, the Court placed great weight upon the apparent inconsistencies between the jury verdicts and the prosecution's theory of the case: "Based on the evidence at trial, the jury acquitted [another defendant) of being either a principal or an accomplice to any of the charged offenses. Petitioner was likewise acquitted of kidnapping and rape. However, in a somewhat puzzling turn of events, the jury convicted Petitioner of forcible sodomy." Id. at 230." As demonstrated graphically by the jury's verdicts, which cannot be squared with the state's theory of the alleged crime, the state's case against Petitioner was far from overwhelming." Id. at 233.

88

Here, Appellant claimed that A.J. expected money or other material remuneration (at the mall) in exchange for providing him sex. He did not deny engaging in sexual activities with A.J. He consistently claimed the occasions of sexual intercourse and oral sex were consensual, stating that A.J. became angry and issued threats to accuse him of rape when she realized he was not going to "pay" or "take her to the mall." His sole defense was that A.J. was fabricating the claims against him as retribution for his not satisfying her demands. He, too, was acquitted of the rape charges, but convicted of the sodomy charge. Also a somewhat puzzling turn of events in this case.

89

Having reviewed the record and the "diary," we believe the facts of this case, as well as its closeness on the evidence, are such to transform A.J.'s "diary," or most of its entries,[7] from evidence properly excluded under KRE 412, into one of the rare instances where evidence of the victim's past sexual activity is admitted under KRE 412(b)(1)(C), the residual exception clause. To hold otherwise would be a fundamental violation of the Appellant's constitutional right to confrontation and effective cross-examination.[8]

90

"The Due Process Clause affords a criminal defendant the fundamental right to a fair opportunity to present a defense. Crane v. Kentucky, 476 U.S. 683, 690-91, 106 S.Ct. 2142, 2146, 90 L.Ed.2d 636 (1986); Chambers v. Mississippi, 410 U .S. 284, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297; Beatty v. Commonwealth, 125 S.W.3d 196, 206 (Ky.2003). The exclusion of evidence violates that constitutional right when it "significantly undermine[s] fundamental elements of the defendant's defense." United States v. Scheffer, 523 U.S. 303, 315, 118 S.Ct.1261, 1267-68, 140 L.Ed.2d 413 (1998)." Harris v. Commonwealth, 134 S.W.3d 603, 606 (Ky.2004). Thus, we believe the line of demarcation between the "right to confrontation" and the "Rape Shield rule" is crossed when the "shield" becomes a "sword."

91

In Anderson v. Commonwealth, 63 S.W.3d 135 (Ky.2001), we warned against excessive use of the residual exception stating, `[t]he purpose of the Rape Shield Statute is to insure that [the victim] does not become the party on trial through the admission of evidence that is neither material[,] nor relevant to the charge made.' .... We stand by this sound principle, and by no means want to expand the law to admit more evidence than is necessary to allow a defendant a fair trial." Id. at 140; quoting Barnett at 363).

92

However, we cannot find the error in this case harmless for the same reasons set out in Olden.

93

THE TRIAL COURT'S DENIAL OF APPELLANT'S MOTION TO AMEND HIS GUILTY PLEA

94

Following the jury verdict convicting Appellant of first-degree sodomy and first-degree unlawful imprisonment and recommending a sentence of twenty-five (25) years, Appellant entered a plea of guilty on the other charge, possession of a firearm by a convicted felon. Yet later, at the sentencing hearing on November 14, 2003, counsel for Appellant moved to amend this plea of guilty to an "Alford" plea. The trial court, however, requested the motion be reduced to writing. Ultimately, after the motion to amend and the response there to were filed, it was denied. Appellant argues the trial court erred in denying the motion.

95

The U .S. Supreme Court in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), allowed the use of a "best interest" guilty plea. When entering an "Alford" plea, the defendant acknowledges the weight of the evidence against him, yet still chooses to maintain his innocence. The impetus for entry of such a plea is hope for a lesser sentence in exchange for the entry of a plea.

96

The decision to accept an Alford plea in the first place is within the discretion of the trial court. Even in Alford, the U .S. Supreme Court stated:

97

Our holding does not mean that a trial judge must accept every constitutionally valid guilty plea merely because a defendant wishes so to plead. A criminal defendant does not have the absolute right under the Constitution to have his plea accepted by the court .... [T]he States may bar their courts from accepting guilty pleas from any defendants who assert their innocence.

98

Id. at 38.

99

Although we do allow such pleas at the discretion of the trial court, the Kentucky Rules of Criminal Procedure do not provide for their entry.[9] They provide for pleas of guilty, not guilty, or guilty but mentally ill.

100

In this case, Appellant participated in a full plea colloquy during which he waived his right to a jury trial.[10] The Appellant "knowingly, understandingly and voluntarily" waived his right to a jury trial. He entered a guilty plea with no promise of a recommendation of a lesser sentence by the Commonwealth. More accurately, he entered an "open" and unconditional guilty plea, acknowledging to the court his guilt.

101

Thus, we find no error in the trial court's decision to deny Appellant's motion to amend his guilty plea to an "Alford" plea.

102

CONCLUSION

103

In that we conclude the trial court committed reversible error in admitting evidence of the 19-year-old conviction, in admitting evidence of the "rape" video, as well as in the exclusion of the "diary," the Appellant's convictions for first degree sodomy and first degree unlawful imprisonment are hereby reversed and this case is remanded to the trial court for a new trial consistent with the rulings herein. We affirm the judgment and sentencing on the possession of a firearm, subject to the trial court's re-evaluation of the plea pursuant to the rulings herein.

104

Lambert, C .J.; Graves, Roach, Scott and Wintersheimer, JJ., concur. Cooper, J., dissents by separate opinion, with Johnstone, J., joining that dissent.

105

OPINION BY JUSTICE COOPER

106

CONCURRING IN PART AND DISSENTING IN PART

107

I concur with the majority opinion except insofar as it holds that Appellant may, upon retrial, introduce excerpts from the victim's diary showing that she engaged in other acts of consensual sex with other men in exchange for money or other remuneration.

108

Except for a forty-five-minute period during which Appellant left A.J. alone while he purchased some beer and delivered it to his residence, Appellant and A.J. were together at Appellant's place of business from approximately 8:00 a.m. to 4:00 p.m. on Sunday, May 19, 2002. They both testified that during the period from 8:00a.m. until 10:30 a.m., they engaged in sexual intercourse three times, twice in the reception office and once in an upstairs office. A.J. claimed she was forcibly raped on each occasion;
Appellant claimed the intercourse was consensual. Appellant testified that after their first act of intercourse, A.J. asked him if he would give her twenty-five dollars and he told her that he would (though he apparently never did). He then testified that, after the third act of intercourse, A.J. asked him to take her to the Jefferson Mall and recited a list of items that she wanted him to purchase for her. According to Appellant, he told her that he had no intention of purchasing any of those items for her.

109

Both parties testified that after Appellant returned from purchasing and delivering the beer, and after A.J. had called the 911 emergency operator and reported that she had been raped, A.J. performed an act of oral sodomy on Appellant. Again, A.J. claimed she was forcibly compelled to do so; Appellant claimed that A.J. initiated the contact and voluntarily performed the act without any force or threat from him. Neither testified that A.J. demanded any money or gifts before or after this incident, which occurred shortly before the police arrived and placed Appellant under arrest. Appellant was subsequently indicted for, inter alia, three counts of rape in the first degree and one count of sodomy in the first degree.

110

The trial court sustained the Commonwealth's objection to the introduction of excerpts from A.J.'s diaries which indicated that she had been paid for sex by other men in the past, including a man with whom she had spent the previous evening. The majority opinion holds that the excerpts were admissible because they tended to show that A.J. was a practicing prostitute who had consensual intercourse with Appellant in expectation of remuneration. However, the exception to the rape-shield rule with respect to proof of consent allows only evidence of prior sexual behavior by the victim with the accused. KRE 412(b)(1)(B). The majority opinion relies on the exception at KRE 412(b)(1)(C) ("any other evidence directly pertaining to the offense charged"). Nothing in A.J.'s diary directly pertains to the offenses charged in this case. Appellant (Ky.App.1978) (upholding constitutionality of former KRS 510.145). The U.S. Supreme Court has held that exclusion of this type of evidence for failure to comply with a notice- hearing requirement, see KRE 412(c), does not violate a defendant's Sixth Amendment right to present a defense. In fact, Appellant was not denied the right to present his defense. He "had an opportunity to testify regarding the events of the day leading up to the rape, to argue the victim's ability to consent, and to cross-examine [the victim] regarding the events of the day." Hardaway v. McKane, 125 Fed.Appx. 955, 957 (10th Cir.2005). He was only precluded from introducing evidence regarding A.J.'s previous sexual experiences with other persons.

111

Regardless, under Appellant's own version of the facts, he had told A.J. that he was not going to provide her with money or gifts in exchange for sexual intercourse by approximately 10:30 a.m., after the occurrence of the alleged rapes but some five hours before the occurrence of the alleged sodomy. The diary entries were probative only as a defense to the rape charges because Appellant admits that any discussion of remuneration for sex had been terminated prior to the act of sodomy. Since Appellant was acquitted of the rape charges, the entries are now irrelevant unless the Commonwealth can re-introduce evidence of the rape allegations upon retrial.

112

This case is factually distinguishable from Olden v. Kentuckv, 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988), the case upon which the majority opinion primarily relies. In Olden, the U .S. Supreme Court held that the defendant's Sixth Amendment right to confrontation was violated when he was prevented from presenting evidence that the alleged rape victim was cohabitating with another man for the purpose of showing her motive to fabricate the accusation that the defendant had raped her. Id. at 232, 109 S.Ct. at 483. While the diary excerpts in the case sub judice tend to show that A.J. fabricated the rape charges, they do not tend to show a motive for fabricating the remaining sodomy charge.

113

There is no Constitutional prohibition against the admission at retrial of evidence of the three acts of sexual intercourse between Appellant and A.J. Dowling v. United States, 493 U.S. 342, 348-50, 110 S.Ct. 668, 672-73, 107 L.Ed.2d 708 (1990). Because the standard of proof is lower for admission of evidence under KRE 104(a) than for a criminal conviction, Appellant's acquittal of the three rape charges does not preclude their admission under KRE 404(b) at retrial, so long as the evidence falls within the "proper purpose" exception established by that Rule, Dowlin, 493 U.S. at 348-50, 110 S.Ct. at 672-63; Hampton v. Commonwealth, 133 S.W.3d 438, 441-42 (Ky. 2004), and provided the trial court admonishes the jury that Appellant has been previously acquitted of forcible rape with respect to those acts. Dowlin, 493 U.S. at 345-46, 110 S.Ct. at 674-75; Hampton, 133 S.W.3d at 442.

114

The KRE 404(b) problem here is that evidence of the three acts of consensual sexual intercourse does not satisfy the "other purpose" requirement for admission under KRE 404(b)(1). Both parties admitted to engaging in three acts of sexual intercourse and one act of oral sodomy. Since the jury found Appellant not guilty of the rapes, they must have found that the three acts of sexual intercourse were consensual. The only remaining issue at retrial is whether the sodomy was consensual or the product of forcible compulsion. The three prior acts of consensual sexual intercourse do not tend to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident" with respect to a subsequent forcibly compelled sodomy. It would only tend to prove a "lustful inclination," which is not permitted in Kentucky. Pendleton v. Commonwealth, 685 S.W.2d 549, 552 (Ky.1985). If the Commonwealth attempts to claim at retrial that the three acts of sexual intercourse were forcibly compelled, it is faced not only with the trial court's admonition to the jury that Appellant was acquitted of those charges but also with the introduction of the diary excerpts, which are far more devastating to the Commonwealth's case than proof of alleged nonconsensual acts of sexual intercourse for which he has been acquitted.

115

Nor are the three consensual sexual acts so "inextricably intertwined" with the alleged nonconsensual sexual act as to compel admission under KRS 404(b)(2). As we noted in Funk v. Commonwealth, 842 S.W.2d 476 (Ky.1992):

116

[T]he key to understanding this exception is the word "inextricably." The exception relates only to evidence that must come in because it "is so interwoven with evidence of the crime charged that its introduction is unavoidable."

117

Id. at 480 (emphasis added) (quoting Robert G .Lawson, The Kentucky Evidence Law Handbook § 2.20, at 37 (2d ed. 1984)). See also Fleminq v. Commonwealth, 284 Ky. 209, 144 S.W.2d 220, 221 (1940) (evidence is inextricably intertwined where "two or more crimes are so linked together in point of time or circumstances that one cannot be fully shown without proving the other"). It would be a simple (and prudent) matter for the Commonwealth to introduce all of the other evidence leading up to the alleged forcible sodomy, excluding the three acts of consensual intercourse.

118

In fact, Appellant is more likely to move for the introduction of evidence of consensual intercourse pursuant to KRE 412(b)(1)(B)("evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent") than is the Commonwealth to move for its introduction pursuant to KRE 404(b). But if Appellant introduces evidence that the intercourse was consensual (as circumstantial evidence that the sodomy was also consensual), the diary excerpts, i.e., evidence of sex for money, remain irrelevant because their only purpose is to rebut the claim of nonconsensual sexual intercourse, not the claim of nonconsensual oral sodomy. A.J. could not have expected money or gifts in return for performing a consensual act of sodomy, since Appellant had already told her he had no intention of giving her money or gifts, and A.J. knew the police would soon arrive and arrest Appellant as a result of her 911 call charging him with rape.

119

Accordingly, I dissent with respect to the majority's holding that the diaries are admissible at retrial; otherwise, I concur in the majority opinion.

120

Johnstone, J., joins this opinion.

121

 

122

[1] Police records show the 911 call to have been placed at 3:32 p.m.

123

[2] At trial, the parties stipulated that the male DNA profile from the vaginal specimen matched Appellant and that the saliva swabs from Appellant's penis matched A.J.

124

[3] Federal Courts, in addressing "stale convictions," have stated that such convictions should be admitted rarely and only under exceptional circumstances. Id.

125

[4] The March 23, 2002 entry.

126

[5] The 911 call was placed from A.J.'s cell phone at 3:32 p.m., and thereafter the "police rescue" occurred. However, A.J. received a four-minute call from the man she spent the night before with sometime after 10:23 a.m.; the three "rapes" were committed by approximately 9:30 a.m., yet no 911 call was placed as a result of this conversation (nor was there any independent attempt at rescue).

127

[6] This test is the same as that applied to KRE 609 (Appellant's 19-year-old conviction).

128

[7] The "burnt up my bird and buried it in the yard "entry and other similar entries of irrelevant material should be redacted.

129

[8] See Sixth Amendment to the United States Constitution and Section 11 of the Kentucky Constitution.

130

[9] See. RCr 812; RCr 8.08. Cf. Commonwealth v. Hillhaven Corp., 687 S.W.2d 545, 549 (Ky.App.1984) (holding that criminal rules do not provide for a plea of nolo contendere).

131

[10] The jury was still present and the trial judge explained to Appellant that they could be brought back in to try the firearm charge. Though, it appears from the circumstances that the Appellant made the decision to enter a plea to end all of the proceedings against him out of frustration; a decision that may have been made precipitously and in the "clutch of frustration" following the other convictions; yet the standard we must following in this review is whether it was made knowingly, intelligently, and voluntarily.


132

 

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