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ERIC RAE BELL APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
NOT TO BE PUBLISHED
OPINIONREVERSING IN PART,AFFIRMING IN PART, AND REMANDING
Eric Rae Bell appeals the Jefferson Circuit Court's judgment convicting him of first-degree sodomy, tampering with physical evidence, and fourth-degree assault. After a careful review of the record, we reverse in part, concerning the imposition of the fine and the circuit court's failure to admit evidence concerning the complainant's history of drug use and addiction. We affirm the remainder of the Jefferson Circuit Court's judgment, and we remand the case for a new trial.
I. FACTUAL AND PROCEDURAL BACKGROUND
Bell was indicted on charges of first-degree rape, first-degree sodomy, fourth-degree assault, tampering with physical evidence, and being a second-degree Persistent Felony Offender (PFO–2nd). Following a jury trial, he was acquitted of the first-degree rape and PFO–2nd charges, but he was convicted on the first-degree sodomy, fourth-degree assault, and tampering with physical evidence charges. He was sentenced to serve thirteen years of imprisonment for the sodomy conviction, two years of imprisonment for the tampering with physical evidence conviction, and twelve months of imprisonment and a $1,000.00 fine for the assault conviction. The sentences for sodomy and tampering with physical evidence were ordered to be served consecutively, and the sentence for assault was ordered to be served concurrently to the other sentences. Therefore, Bell was sentenced to a total term of fifteen years of imprisonment.
Bell now appeals, contending that: (a) the circuit court erred when it denied his motions for a directed verdict on the rape and sodomy charges; (b) the circuit court erred in excluding statements the complainant Double made to medical personnel concerning her history of drug use and addiction; (c) the circuit court erred in excluding evidence that could have been used to impeach the complainant's credibility; (d) the circuit court improperly instructed the jury after the jury reported it was deadlocked; and (e) the circuit court erred in assessing a fine against Bell when he was indigent. Further facts will be discussed as needed to address these claims, infra.
A. DIRECTED VERDICT
Bell first claims that the circuit court erred in denying his motions for a directed verdict concerning the charges of rape and sodomy. Double He asserts that “the only testimony that the sex between Bell and [the complainant] was not consensual came from [the complainant].” Double He further alleges that it was unreasonable for the jury to have convicted him of sodomy and that “[b]y not granting the motion to direct a verdict on the rape count, the [circuit] court increased the chances of a compromise[d] verdict despite the absence of credible evidence, which is exactly what occurred.”
Although Bell claims that there was an increased chance of a compromised verdict, he does not explain how the verdict would be compromised and he does not cite any legal authority on this point. Therefore, his assertion regarding a compromised verdict is conclusory. Kentucky Rule of Civil Procedure (CR) 76.12(4)(c)(v) requires briefs to contain arguments that include citations of authority that are applicable to each legal issue in the case. Thus, Bell's assertion regarding the allegedly compromised verdict does not comply with CR 76.12(4)(c)(v). Consequently, we refuse to consider this part of the claim. See Cherry v. Augustus, 245 S.W.3d 766, 781 (Ky.App.2006).
To the extent Bell challenges the circuit court's denial of his motion for a directed verdict pertaining to the rape charge, the claim is moot because the jury acquitted him of that charge.
Bell also challenges the circuit court's denial of his motion for a directed verdict regarding the sodomy charge. The standard of review on appeal from a circuit court's order concerning a motion for a directed verdict is as follows:
On motion for [a] directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.
On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal.
․ [T]here must be evidence of substance, and the trial court is expressly authorized to direct a verdict for the defendant if the prosecution produces no more than a mere scintilla of evidence.
Commonwealth v. Benham, 816 S.W.2d 186, 187–88 (Ky.1991) (internal quotation marks and citation omitted).
In the present case, there was sufficient evidence to support Bell's sodomy conviction, and it was not unreasonable for a jury to convict him. The complainant, who has multiple sclerosis, testified during trial that Bell offered to drive her to a particular location where she was going to babysit her grandchildren and that she accepted the offer because she sometimes has trouble walking. She stated that after she got in the car with Bell, he punched her, drove her to a different house, and pushed her into that house. The complainant attested that once inside the house, Bell told her to take her clothes off and made her perform oral sex on him three to four times. The complainant testified that Bell subsequently attempted to have intercourse with her. He was able to penetrate her, but he was unable to remain inside her. She stated that he then became frustrated and began to beat her. She told him she wanted to go to the bathroom, but he would not allow her to do so. She then defecated on the floor due to her multiple sclerosis. She attested that Bell continued beating her until she was able to hit him on the head with an ash tray, at which time Bell left and went upstairs. The complainant testified that, although she was nude, she then crawled out to the street and hid behind a vehicle.
Additionally, Detective Docky Ousley, who was employed by the Louisville Metro Police Department, attested that he responded to the call to go to the area. When he arrived, he found the complainant on a curb behind a vehicle. She was nude, with the exception of having a coat over her shoulders. Detective Ousley testified that the complainant was bleeding from the mouth; she had a swollen face; her eyes were practically closed from the swelling; she was in and out of consciousness; and he feared for her life. Although Bell offered a different version of the facts, there was sufficient evidence introduced by the Commonwealth through the complainant and Detective Ousley for a jury to reasonably convict Bell of sodomy. Consequently, the circuit court did not err in denying Bell's motion for a directed verdict.
B. HISTORY OF DRUG USE
Bell next alleges that the circuit court erred in excluding statements the complainant made to medical personnel concerning her history of drug use and addiction. He contends that if he had been permitted to introduce evidence of the complainant's drug use history, the jury would have been more likely to believe his version of the events in question, i.e., that due to the complainant's twenty-year drug addiction, she consensually traded sex in exchange for receiving crack cocaine from Bell. He alleges that if he had been allowed to present evidence to the jury that complainant “was a chronic crack cocaine addict and had no money,” the jury may have inferred she would have traded sex for crack cocaine. Bell states that the circuit court refused to admit evidence of the complainant's drug use history because the court found it to be inadmissible character evidence. However, Bell asserts that the “evidence was probative impeaching evidence that should have been admitted.”
We review a trial court's evidentiary rulings for an abuse of discretion. See Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky.2000). “The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Id. at 581.
Bell primarily cites cases from other states in support of this claim. He also cites a few United States Supreme Court cases for the broader propositions of a defendant's due process rights to present a defense, but those cases are not factually on point to the present case.
Bell quotes United States v. Scheffer, 523 U.S. 303, 315, 118 S.Ct. 1261, 1267–68, 140 L.Ed.2d 413 (1998), for the general proposition that excluding evidence violates a defendant's due process rights when it “significantly undermine[s] fundamental elements of the defendant's defense.” The Court in Scheffer also stated as follows:
A defendant's right to present relevant evidence is not unlimited, but rather is subject to reasonable restrictions. A defendant's interest in presenting such evidence may thus bow to accommodate other legitimate interests in the criminal trial process. As a result, state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials. Such rules do not abridge an accused's right to present a defense so long as they are not arbitrary or disproportionate to the purposes they are designed to serve. Moreover, we have found the exclusion of evidence to be unconstitutionally arbitrary or disproportionate only where it has infringed upon a weighty interest of the accused.
Scheffer, 523 U.S. at 308, 118 S.Ct. at 1264 (internal citations, quotation marks, and footnotes omitted).
Bell also cites cases from other states in support of his claim. He cites a case from Maryland's highest court, Johnson v. Maryland, 632 A.2d 152 (Md.1993), in which the issue was whether the complainant had exchanged sex for cocaine or had been raped. The court held:
[B]ecause these are the only possible explanations for what occurred, evidence that she has [exchanged sex] for cocaine in the past and, particularly, the very recent past, has special relevance to that issue; such evidence transcends mere evidence of bad character or, in the context of this case, sexual promiscuity. In turn, it is relevant to, and probative of, the victim's motive. From a finding that on this occasion she was [exchanging sex] for cocaine but did not receive the bargained for cocaine, the jury could then infer that the victim had an ulterior motive for making a false accusation of rape against the petitioner.
Johnson, 632 A.2d at 159–60.
Although the Johnson case has facts similar to those in the present case, the issue in Johnson was whether to admit evidence that the victim had exchanged sex for drugs in the past. In the present case, Bell was permitted to testify that he and the complainant had exchanged sex for drugs in the past (a claim that the complainant denied), but the issue was whether evidence of the complainant's long-term past drug addiction was admissible.
Bell further cites the Illinois Appellate Court's decision in Illinois v. Crisp, 609 N.E.2d 740, 745 (Ill.App.1992), which more closely addresses the issue he presents, and it provides:
It is well settled that narcotics addiction has an important bearing upon the credibility of a witness, and counsel may use legitimate methods to attack the credibility of such a witness․ Thus, ․ the question of whether a witness is a narcotics addict at the time of testifying or at the time that an event occurred is a proper subject of cross-examination.
Upon the Court's own research, we have found a recent published case by the Supreme Court of Vermont involved facts and legal issues similar to those in the present case to be of persuasive value. See Vermont v. Memoli, _ A.3d _, 2011 WL 478578, No.2009–349, *1 (Vt.Fe.10, 2011). Double In Memoli, there was evidence in the record that the complainant had smoked marijuana on the evening in question. Id. at ¶ 2. The complainant testified that the defendant's companion blew crack cocaine smoke into her mouth. Id. at ¶ 4. Memoli and his companion testified that the complainant smoked the crack cocaine herself. Id. at ¶ 6. Additionally, Memoli and his companion testified that the complainant traded sex for drugs, but the complainant alleged that she was raped. Memoli's defense counsel sought to introduce evidence of the complainant's use of drugs both before and after the date of the offense as her motive for engaging in sexual acts. Defense counsel argued that without the introduction of such evidence, Memoli did not have a defense because his defense was: (1) that the complainant traded sex for drugs; (2) that she therefore consented to the sexual relations; and (3) that the reason she did so was because she “was a crack addict.” Id. at ¶ 8. However, the trial court did not permit Memoli to introduce evidence of the complainant's prior and subsequent drug use. The court only permitted Memoli to introduce evidence of the complainant's drug use on the night of the incident. The court held that any other evidence of the complainant's drug use was irrelevant to the issue of consent. Id. at ¶ 11.
On appeal, the Vermont Supreme Court stated that “[c]onsent to sexual conduct with one person has no tendency to prove consent to conduct with another.' ” Id. ¶ 19 (quoting Vermont v. Patnaude, 438 A.2d 402, 410 (Vt.1981)). The Court held that Vermont's rape shield statute, which “precludes admission of [e]vidence of prior sexual conduct of the complaining witness,” was not applicable in Memoli's case because he “did not seek to introduce evidence of complainant's prior sexual conduct.” Id. at ¶¶ 19–20 (internal quotation marks omitted). The Court noted:
Defendant requested to admit evidence of complainant's crack cocaine use, both before and after the incident to demonstrate complainant's affection for the drug. Only then could he argue his defense – that her desire for cocaine was strong enough to motivate her to consent to sexual interactions with him in exchange for the drug.
Id. at ¶ 20.
The Vermont Supreme Court then noted that the trial court's other rationale for excluding the evidence, i.e., that the evidence was not relevant, was also erroneous. The Court stated that, pursuant to Vermont Rule of Evidence 401,
[e]vidence is relevant if it has a tendency to make the existence of a fact in issue more or less probable than without the evidence․ The trial court has broad discretion in determining the relevance of evidence; however, this discretion is limited in criminal cases by defendant's constitutional due process rights and right to confront witnesses against him.
Id. at ¶ 23 (internal quotation marks omitted). The Vermont Supreme Court held that the trial court erred in not admitting the evidence of the complainant's drug use thirty days before and after the incident because that evidence was relevant to whether she had consented to the sexual relations with Memoli in exchange for crack cocaine. Id. at ¶ 24.
The Court in Memoli noted that the State argued “that even if relevant there was no error in exclusion of this evidence because defendant incorrectly sought to introduce complainant's prior conduct to prove that she is a drug addict, and this is a character trait which cannot be proven through specific instances of conduct.” Id. at ¶ 27 (citing Vermont Rule of Evidence 404(a)). The Vermont Supreme Court disagreed and held:
The State's argument misunderstands the issue. Defendant did not seek to introduce complainant's drug use to prove that she had a specific character trait of being an addict or a reputation as a drug user to undercut her credibility․ Defendant's proffer was narrower: that evidence of complainant's drug use was relevant to demonstrate that she had motive to consent to sexual acts with defendant. This purpose is consistent with the rule.
Id. at ¶ 27 (citing Vermont Rule of Evidence 404(b)).
The Court also reasoned that Vermont Rule of Evidence 403 “did not bar admission of complainant's drug use” because “the evidence held strong probative value because it was critical for the defense to demonstrate to the jury why complainant would consent to the described sexual acts.” Id. at ¶ 28. The Court further held that the prejudicial effect of admitting the evidence did not substantially outweigh the evidence's probative value. Id. at ¶ 28. Consequently, Memoli was granted a new trial by the Vermont Supreme Court.
We find the Vermont Supreme Court's analysis in Memoli persuasive and hold that the reasoning applies to this case. As in Memoli, in Bell's case, there was evidence that the complainant had drugs in her system the evening in question; the defendant testified that he and the complainant had exchanged sex for drugs; the complainant testified that she was raped; the defendant wanted to introduce evidence of the complainant's history of drug use because his defense was that due to complainant's drug addiction, she was willing to trade sex for drugs; and the court did not admit evidence of the complainant's history of drug use.
The Kentucky Rules of Evidence at issue in this case and the Vermont Rules of Evidence at issue in Memoli are quite similar. As the Memoli Court held, the evidence of the complainant's prior drug use in the present case that Bell sought to admit did not concern her prior sexual conduct and, therefore, KRE Double 412, Kentucky's “Rape Shield Law,” was inapplicable to this evidence. Additionally, the evidence of prior drug use was relevant for the purpose of determining whether the complainant consented to the sexual relations with Bell in exchange for drugs. See KRE 401.
Pursuant to KRE 404(a)(2), “in a prosecution for criminal sexual conduct,” evidence proffered by an accused concerning “a pertinent trait of character of the victim” is inadmissible. However, in the present case, the evidence of prior drug use was not being offered to establish a character trait of the complainant; rather, defense counsel sought to introduce it to prove that the complainant had a motive to consent to the exchange of sex for drugs, which is permissible under KRE 404(b).
Furthermore, KRE 403 did not bar admission of the evidence of prior drug use because it had strong probative value pertaining to the issue of whether the complainant had a motive to consent to trading sex for drugs. If there was any prejudicial effect of introducing such evidence, it did not substantially outweigh the evidence's probative value. Therefore, as in Memoli, we conclude the evidence related to the complainant's history of drug use in the present case was admissible.
As previously mentioned, Bell specifically seeks to introduce the complainant's medical record, which revealed that she had reported a personal history of using cocaine. Bell claims that these statements from her medical record are admissible pursuant to KRE 803(4), which provides:
The following are not excluded by the hearsay rules, even though the declarant is available as a witness:
* * *
Statements made for purposes of medical treatment or diagnosis and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to treatment or diagnosis.
The complainant's statement that she had a history of using cocaine pertained to her medical history, and considering that she tested positive for cocaine at the hospital the night she made that statement, the statement was reasonably pertinent to her treatment or diagnosis. Therefore, the complainant's statement in her medical record regarding her history of drug use is admissible, and the circuit court erred when it denied defense counsel's request to admit it. Because Bell was not afforded the opportunity to present his defense theory to the jury due to this error, he is entitled to a new trial.
C. IMPEACHMENT EVIDENCE
Bell asserts that the circuit court erred in excluding evidence to impeach the complainant's credibility. Specifically, he states that the circuit court improperly granted the prosecutor's motion to suppress evidence that showed the complainant had previously been charged with filing a false police report. Bell's defense counsel presented evidence by avowal concerning the complainant's prior charge of filing a false police report.
Officer Andreas Shabaan from the Louisville Metro Police Department testified that in 2007, he had arrested the complainant for filing a false police report. Officer Shabaan explained that he and at least one other unnamed officer were dispatched to the complainant's location, and upon their arrival, she told them she had been robbed. She informed the officers that someone on a bicycle attacked her, took her purse, took the money out of her purse, threw down her purse, and rode away. Officer Shabaan initially believed the complainant. The more questions the officers asked of her, however, the more it became evident to him that she was not being truthful. Officer Shabaan attested that the complainant repeatedly changed her description of the suspect and his bike. The officers asked if they could look in her purse. When they did, they found that she still had money in her purse, as well as a crack pipe. The officers asked why she still had money in her purse when she previously told them she had been robbed and the offender had taken all of her money. The complainant could not explain why she still had money in her purse. Officer Shabaan testified the complainant made some nonsensical statement that she needed the police report so she could get her $200 back from the welfare office by showing the welfare office that the police report said she had been robbed of $200. The complainant was then charged with filing a false police report based on her demeanor, the fact that the injuries she showed to Officer Shabaan were not consistent with the brutal attack she alleged she had endured, and the fact that she still had money in her purse even though she had previously alleged that the robber had taken all of it. Officer Shabaan was uncertain if she was convicted of that charge or not because he was deployed to Iraq by the time she was brought into court on the charge.
Bell contends that he should have been permitted to introduce this evidence of the complainant's prior charge of filing a false police report. Specifically, he argues that Officer Shabaan “testified to two different types of impeachment evidence: his opinion concerning the truthfulness of [the complainant], and a specific instance of conduct,” and Bell alleges that both types of impeachment evidence should have been admitted under KRE 608. Kentucky Rule of Evidence 608 provides as follows:
(a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness: (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. No specific instance of conduct of a witness may be the subject of inquiry under this provision unless the cross-examiner has a factual basis for the subject matter of his inquiry.
Regarding Bell's claim that the officer should have been permitted to testify about his opinion of the complainant's untruthfulness, his claim lacks merit. Officer Shabaan did not testify that he knew the complainant prior to the date he charged her with filing a false police report. Therefore, he had no basis for having knowledge of the complainant's character for untruthfulness. See Stewart v. Commonwealth, 197 S.W.3d 568, 571 (Ky.App.2006) (reasoning that a woman's mother was qualified to testify concerning her daughter's truthfulness because the mother had knowledge of her daughter's character). Officer Shabaan's only allegation was that he believed the complainant had lied to him about having been robbed, but he could not state whether she was actually convicted of the charge of filing a false police report.
Furthermore, even if the charge alone was sufficient to qualify Officer Shabaan to testify regarding the complainant's untruthfulness, whether his opinion should have been admitted as evidence still must be subjected to the KRE 403 balancing test. See Dennis v. Commonwealth, 306 S.W.3d 466, 472 (Ky.2010). Because Officer Shabaan could not state whether the complainant was actually convicted of the crime, his testimony concerning the charge and the events leading to the charge would have been substantially more prejudicial than probative. Therefore, the evidence would not have been admissible pursuant to the KRE 403 balancing test, even if Officer Shabaan had a basis for having knowledge of the complainant's untruthfulness. Consequently, the circuit court did not err when it ruled that Officer Shabaan's opinion testimony was inadmissible.
Bell also contends that Officer Shabaan's testimony should have been admissible as testimony concerning a specific instance of conduct. Pursuant to KRE 405(c), “[i]n cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct.” However, in Dennis, the Kentucky Supreme Court noted that “[w]ith respect to the victim's character, ․ KRE 405 in pertinent part limits the admissible evidence to testimony as to general reputation in the community or by testimony in the form of opinion. That rule does not allow for evidence of a victim's specific instances of conduct.” Dennis, 306 S.W.3d at 471 n.2 (internal quotation marks omitted). Thus, pursuant to Dennis, evidence of the complainant's specific instance of conduct was inadmissible.
However, even if we were to assume for the sake of argument, that this type of evidence was typically admissible pursuant to KRE 405, the method to introduce it would still be limited by KRE 608. Pursuant to KRE 608(b), a witness's specific instance of conduct may not be proved by extrinsic evidence. In the present case, defense counsel sought to introduce evidence of the complainant's specific instance of conduct via testimony from Officer Shabaan. This was extrinsic evidence and, therefore, it was not admissible under KRE 608(b).
Furthermore, we note that under KRE 404(b), “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” It appears that the only reason Bell wanted to introduce evidence of the complainant's prior charge was to show that she had allegedly falsely reported crimes to the police in the past. Thus, under KRE 404(b), this type of evidence is inadmissible. There are, of course, exceptions to this rule, i.e., if the evidence is “offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident” or if the evidence is “so inextricably intertwined with other evidence essential to the case that separation of the two (2) could not be accomplished without serious adverse effect on the offering party.” However, none of the exceptions applies to this evidence.
Moreover, even if the evidence qualified as an exception to KRE 404(b), to be permitted to use a prior crime for impeachment purposes, “[t]he impeaching crime must be a felony conviction, and not a pending charge.” Moore v. Commonwealth, 634 S.W.2d 426, 436 (Ky.1982); see also KRE 609. In the present case, Bell failed to show that the complainant was actually convicted of, rather than simply charged with, filing a false police report. Additionally, the crime of falsely reporting an incident is a misdemeanor. See KRS 519.040. Therefore, the circuit court did not abuse its discretion when it ruled that Officer Shabaan's testimony concerning the complainant's prior charge for filing a false police report was inadmissible.
D. COURT'S INSTRUCTION TO JURY
Bell next contends that the circuit court improperly instructed the jury after the jury reported it was deadlocked. Bell acknowledges that this claim was not preserved for appellate review, but he asks us to review it for palpable error under RCr Double 10.26, which provides as follows: “A palpable error which affects the substantial rights of a party may be considered ․ by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.”
[T]he requirement of “manifest injustice” as used in RCr 10.26 ․ mean[s] that the error must have prejudiced the substantial rights of the defendant, ․ i.e., a substantial possibility exists that the result of the trial would have been different․
[The Kentucky Supreme Court has] stated that upon consideration of the whole case, the reviewing court must conclude that a substantial possibility exists that the result would have been different in order to grant relief.
Castle v. Commonwealth, 44 S.W.3d 790, 793–94 (Ky.App.2000) (internal quotation marks omitted).
Bell asserts that approximately three hours after beginning deliberations, the jury sent the following note to the circuit court:
AS OF 5:00 p[.]m[.], THE JURY HAS COME TO A UNANIMOUS DECISION ON ONLY 2 OF THE 4 CHARGES. WE ARE SIGNIFICANTLY SPLIT ON THE REMAINING 2 INSTRUCTIONS. CAN YOU PROVIDE U.S. WITH SOME GUIDANCE AS TO OUR OPTIONS[?]
At approximately 5:30 p.m., the court informed the attorneys for both sides of the jury's note. The Commonwealth recommended that the court respond by telling the jury to “please continue to deliberate on the remaining two charges.” Defense counsel agreed with the Commonwealth's proposed response to the jury. The court asked the attorneys about the option of allowing the jury to order dinner. Defense counsel stated he was fine with that proposal. The Commonwealth recommended that the court only send the note with its original recommendation at that time and then, at about 6:00 p.m., send the sheriff in with menus from which the jury could order dinner. The court then informed the attorneys of its decision to instruct the jurors to continue to deliberate on the remaining two charges and to inform the jury that if they wanted dinner delivered, it would take approximately one hour for it to be delivered. The court asked the attorneys if they had any problem with that response to the jury, and neither party stated that it had any objection to that response.
The circuit court's response note to the jury stated as follows:
You are instructed to continue to deliberate based upon the jury instructions and the evidence.
You are entitled to have dinner provided. It will take approximately one hour for dinner to be delivered. Please let the deputy know if you would like to order dinner.
Bell now contends that the jury's letter to the court stated that the jury was deadlocked and therefore, pursuant to RCr 9.57, the court improperly instructed the jury in its response note. Kentucky Rule of Criminal Procedure 9.57(1) provides as follows:
If a jury reports to a court that it is unable to reach a verdict and the court determines further deliberations may be useful, the court shall not give any instruction regarding the desirability of reaching a verdict other than one which contains only the following elements:
(a) in order to return a verdict, each juror must agree to that verdict;
(b) jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;
(c) each juror must decide the case, but only after an impartial consideration of the evidence with the other jurors;
(d) in the course of deliberations, a juror should not hesitate to reexamine his or her own views and change his or her opinion if convinced it is erroneous; and
(e) no juror should surrender his or her honest conviction as to the weight or effect of the evidence solely because of the opinion of other jurors, or for the mere purpose of returning a verdict.
If a court's comment to a jury is in violation of RCr 9.57, “the focus on appeal is whether the comment itself was coercive.” Mills v. Commonwealth, 996 S.W.2d 473, 493 (Ky.1999), overruled on other grounds by Padgett v. Commonwealth, 312 S.W.3d 336 (Ky.2010).
In Commonwealth v. Mitchell, 943 S.W.2d 625 (Ky.1997), after “three hours of deliberations, the jury returned to the courtroom and delivered the following note to the trial judge: ‘The jury has reached a decision on one of the counts but seems firmly divided on the other two counts. What should we do?’ ” Mitchell, 943 S.W.2d at 626. The trial court in Mitchell responded to the jury's note with instructions that included all of the requirements set forth in RCr 9.57, with the exception of the requirement that the verdict must be unanimous. The jury deliberated approximately two hours longer before returning its verdict. Mitchell appealed, and the Kentucky Supreme Court held that “[a]lthough the instruction did not readvise the jury that its verdict must be unanimous, that omission was harmless since the jury had already been so advised in the court's initial written instructions, which were still in the possession of the jury.” Mitchell, 943 S.W.2d at 627.
The note sent by the jury in the present case was very similar to that sent by the jury in Mitchell. In both cases, the jury reported that it had reached a decision on some of the counts, but it was divided on other counts. Also in both cases, the jury asked the court for guidance as to what it should do. In Mitchell, the Supreme Court held that it could
assume that the jurors already had concluded that further deliberations were not useful; otherwise, they would not have ceased their deliberations and returned to open court to report that they were “divided.” Rule 9.57(1) contemplates that it is the trial judge who shall determine whether “further deliberations may be useful” based on the circumstances apparent to the judge at that point in time. [In Mitchell ], the jury had deliberated for only three hours and this was their first report of a problem. The jurors did not report that they were deadlocked, but only “divided.” Finally, they asked the judge for advice: “What should we do?” Under these circumstances, the trial judge could and did reasonably conclude that “further deliberations may be useful.”
Mitchell, 943 S.W.2d at 627.
As in Mitchell, in the present case, the circuit court could have assumed that the jurors had already decided that further deliberations would not be useful because otherwise they would not have sent the note to the court. They did not report that they were deadlocked, but only “split.” The jurors also asked the court for advice as to their options: “Can you provide us with some guidance as to our options[?]” Pursuant to the Mitchell decision, under these circumstances, the court could reasonably conclude that “further deliberations may be useful.” It appears that the circuit court in this case did find that further deliberations may be useful because the court responded to the jury's note by instructing them to continue deliberating “based upon the jury instructions and the evidence” and by telling them that dinner could be ordered for them.
Furthermore, the court's omission from its note to the jury of the elements set forth in RCr 9.57 was harmless because the court instructed the jury to continue deliberating “based upon the jury instructions and the evidence.” The elements required by RCr 9.57 were included in the initial jury instructions, which the jury still had in its possession. See Mitchell, 943 S.W.2d at 627. The initial jury instructions in this case stated, inter alia, as follows:
In the jury room it is your duty to discuss the case in order to reach a verdict. Each of you must decide the case for yourself, but should do so only after considering the views of each juror. You should not hesitate to change an opinion if you are convinced it is wrong. However, you should not be influenced to decide any question in a particular way simply because a majority of the jurors, or any of them, favor such a decision.
* * *
The verdict of the Jury must be unanimous finding the defendant guilty or not guilty, and must be signed by one of you as Foreperson.
Therefore, the court did not err in its instruction to the jury which referred the jury to its initial instructions that included all of the requirements of RCr 9.57. Thus, this claim lacks merit, and the trial court did not commit palpable error in its instruction.
E. ASSESSMENT OF FINE
Finally, Bell argues that the circuit court erred in assessing a fine against him when he was indigent. Bell acknowledges that he did not preserve this claim for appellate review, but he nonetheless asks this Court to review it for palpable error.
Although Bell was represented by privately retained counsel during the circuit court proceedings, at his sentencing, the circuit court imposed a $1,000.00 fine for the fourth-degree assault conviction. Later in that same hearing, the court was asked to declare Bell indigent for purposes of his appeal, and the court did so by granting Bell's motion to proceed in forma pauperis on appeal.
Pursuant to KRS 534.040(4), fines required by that statute for the commission of misdemeanors “shall not be imposed upon any person determined by the court to be indigent pursuant to KRS Chapter 31.” Because Bell was declared indigent by the court during the same hearing in which he was fined, he should not have been fined by the circuit court. See KRS 534.040(4).
Accordingly, the judgment of the Jefferson Circuit Court is reversed in part, concerning the imposition of the fine and the circuit court's failure to admit evidence concerning the complainant's history of drug use and addiction. The remainder of the Jefferson Circuit Court's judgment is affirmed, and the case is remanded for a new trial.
ISAAC, SENIOR JUDGE, CONCURS IN PART AND DISSENTS IN PART AND FILES SEPARATE OPINION.
COMBS, JUDGE, CONCURS IN PART AND DISSENTS IN PART AND FILES SEPARATE OPINION.
ISAAC, SENIOR JUDGE, DISSENTING IN PART: I agree with the majority in all respects except for its remand for a new trial on the charge of tampering with physical evidence. The jury returned a verdict of guilty on this charge and the trial court's erroneous evidentiary ruling had no bearing on any issue or element of that charge. Therefore, I would reverse and remand only for a new trial on the charges of first-degree sodomy and fourth-degree assault and affirm the conviction for tampering with physical evidence.
COMBS, JUDGE, DISSENTING IN PART: I am not persuaded that the trial judge erred in this case in refusing to admit evidence of the complainant's sexual conduct in relation to previous drug use. As a matter of fact and the record, the jury was made fully aware of her past conduct. As noted by the majority opinion at p. 9, “Bell was permitted to testify that he and the complainant had exchanged sex for drugs in the past․” (Emphasis added.) I believe that that testimony was enough for the jury to assess the true nature of the complainant's motive in this immediate case without inviting it to delve into a sordid inquiry as to her distant past.
I would refrain from adopting a rule from a foreign jurisdiction that essentially would render evidence of drug use into a rebuttable presumption of sexual promiscuity or an automatic inference that sexual favors must be a quid pro quo for drugs. And the Vermont case relied upon by the majority creates that very evidentiary outcome – an outcome which, in effect, may further victimize and stigmatize the victim of an alleged sexual assault.
I am persuaded that the trial court ruled correctly on this issue in finding that complainant's drug use was indeed inadmissible character evidence under the particular circumstances of this case that would have been more prejudicial than probative had it been admitted. Therefore, I would not remand for a new trial on this issue.
I concur with the majority opinion on all other issues.
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Docket No: NO. 2009–CA–002109–MR
Decided: May 27, 2011
Court: Court of Appeals of Kentucky.
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