Alfredo Martinez v. Commonwealth of Kentucky

• Court: Kentucky Supreme Court
• Decided: December 19, 2024
• Docket: 2023-SC-0548
• Status: Unpublished

Opinion

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: DECEMBER 19, 2024 NOT TO BE PUBLISHED

Supreme Court of Kentucky 2023-SC-0548-MR

ALFREDO MARTINEZ APPELLANT

ON APPEAL FROM BOONE CIRCUIT COURT V. HONORABLE JAMES R. SCHRAND, II, JUDGE NO. 22-CR-00750

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Alfredo Martinez was convicted by a Boone Circuit Court jury of three

counts each of incest, rape in the first degree, and sodomy in the first degree.

He received a sentence of life imprisonment and now appeals as a matter of

right. 1 Following a careful review, we affirm.

The victim, S.M., 2 is the biological daughter of L.M. and Martinez. She

lived with her mother but would visit Martinez and his family at his home in

Hebron, Kentucky. When she was between 10 and 11 years old, she was

sleeping on a pull-out trundle bed while her younger biological sister, M.M.,

was asleep on the top bed. S.M. awakened to find Martinez’s mouth on her

1 KY. CONST. §110(2)(b). 2 We use initials to protect the privacy of this minor individual. See Kentucky

Rules of Appellate Procedure (RAP) 31(B). vagina. He then got on top of her and placed his penis in her vagina. She

recalled wearing a Disney princess nightgown and said she did not fight back

or call for help because she did not think anyone would believe her.

On another occasion, she was asleep on the lower trundle bed, but her

younger sister was not on the top bed. Everyone in the house was asleep but,

as before, she awoke to Martinez putting his mouth on her vagina. He again

placed his penis inside her vagina. Martinez asked S.M. if she liked it and she

said no and told him to stop.

On a third occasion, S.M. and M.M. had been playing in the basement.

Martinez came downstairs when M.M. went upstairs. He prevented S.M. from

leaving the basement, made her lie down on the couch, and remove her pants

and underwear. He got on top of her and placed his penis inside her vagina.

He asked her questions such as “do you like it?” and “is it mine?” while he was

vaginally penetrating her. She told him no and asked him to stop. He

continued for a little while longer before suddenly stopping. After he got up

there was a wet spot on the couch he wiped up with a tissue.

As she grew older, Martinez would text S.M. and pick her up from her

mother’s home in Covington, Kentucky, under the guise of taking her to

Walmart to do some shopping. He would instead take her to the dark end of a

soccer field parking lot in Latonia, Kentucky, and force her to have sexual

intercourse with him in the back seat of his vehicle. S.M. said this happened

multiple times.

2 In 2022, when she was sixteen years old, S.M. became pregnant by her

boyfriend. Afraid to have Martinez around her unborn daughter, she finally

informed her mother of the years of sexual abuse she had been subjected to.

S.M. was interviewed at the Children’s Advocacy Center and she agreed to

participate in a controlled call with Martinez which was recorded by the Boone

County Sheriff’s Office. During the call, Martinez made numerous statements

which officers believed amounted to admissions of wrongdoing. He answered

no when S.M. asked if he was calling her a liar when she said he “made her

have sex with him.” Martinez apologized a dozen times or more and, at the end

of the call, offered S.M. $125 when she threatened to tell someone about the

abuse.

Martinez was charged with three counts each of incest, rape in the first

degree, and sodomy in the first degree. His defense at trial was a complete

denial of all allegations. The jury convicted him of all of the charges and

recommended a sentence of life imprisonment which the trial court

subsequently imposed. This appeal followed.

Martinez raises several allegations of error in seeking reversal. First, he

contends the trial court erred in denying his motion for a new trial based on

alleged juror misconduct during voir dire. Second, Martinez argues the trial

court erred in permitting the Commonwealth to elicit testimony from S.M.

regarding uncharged acts of sexual abuse. Third, he alleges victim impact

testimony was improperly admitted during the guilt phase. Finally, he urges

reversal due to cumulative error.

3 Martinez first contends he was entitled to a new trial because a juror

allegedly downplayed the extent of her relationship with Martinez’s wife, Julie

Martinez. During voir dire, Juror 351 asked to approach the bench and

informed the court she had not originally recognized the name but that she

knew Julie, and they were friends on Facebook. The parties undertook a

lengthy and thorough questioning of Juror 351 who confirmed she knew Julie

as a waitress at Chuy’s restaurant but did not know her well and the two had

not “hung out” together. The juror said it had been a couple of years since she

had seen Julie because Julie no longer worked at the restaurant. She stated

she was unaware Martinez had been charged with a crime and had not seen

any social media posts regarding the case. She indicated she did not think she

would believe Julie over any other witnesses and would listen to both sides

while indicating the allegations made her “sick to her stomach” because she

had been a juror in a similar case years before. Juror 351 affirmed she could

be fair and impartial, would listen to all the details, and her knowing Julie

would not impact her. Neither party moved to strike Juror 351 for cause, nor

was a peremptory strike used to remove her. Ultimately, she sat on the jury.

Shortly after the trial concluded, Martinez moved for a new trial alleging,

inter alia, the jury was not fair and impartial because Juror 351 downplayed

her relationship with Julie. Attached to the motion was an affidavit from Julie

asserting that besides knowing Juror 351 from Chuy’s, the pair had

volunteered together at an elementary school, and they would “hug and catch

up” when seeing each other out in public. They had been Facebook friends

4 since 2016 but had not seen each other since Martinez was indicted. In

response, the Commonwealth countered that Juror 351 had been candid

during questioning and Julie’s affidavit corroborated answers given during the

bench conference.

The trial court denied the motion for a new trial, concluding neither side

had sought to remove Juror 351 from the panel, the relationship between the

two women was primarily based on contact at the restaurant where Julie

formerly worked, and Juror 351 had not committed misconduct relative to

disclosing her relationship with the Martinez family. Martinez disagrees with

the trial court’s assessment and persists in claiming Juror 351 either lied

explicitly about the closeness of the relationship or, at the very least, may have

lied by omission. He believes the jury was therefore so tainted as to have

deprived him of a fair trial. We disagree.

“To obtain a new trial because of juror mendacity, ‘a party must first

demonstrate that a juror failed to answer honestly a material question on voir

dire, and then further show that a correct response would have provided a

valid basis for a challenge for cause.’” Adkins v. Commonwealth, 96 S.W.3d

779, 796 (Ky. 2003) (quoting McDonough Power Equip., Inc. v. Greenwood, 464

U.S. 548, 556 (1984)). Further, when challenging a juror based on the juror’s

relationship with another person, a defendant “must do more than simply

speculate that the relationship might have somehow affected the jury verdict.”

Sluss v. Commonwealth, 381 S.W.3d 215, 223 (Ky. 2012). Martinez has done

none of these things.

5 If he had a reasonable ground to believe Juror 351 could not be fair and

impartial, it was incumbent on Martinez to challenge her for cause. RCr 3

9.36(1). Had that challenge failed, Martinez would have the opportunity to

exercise a peremptory strike to remove her from the panel. He did neither. It

is well-settled that a challenge to a juror for cause must be made prior to the

jury being sworn. See Pelfrey v. Commonwealth, 842 S.W.2d 524, 526 (Ky.

1992); see also RCr 9.36(3). Generally, “objection to a juror because of his

disqualification is waived by a failure to object to such juror until after verdict.”

Pelfrey, 842 S.W.2d at 526.

Here, it was not until after he had been convicted that Martinez brought

any potential bias or indication of juror impropriety to the trial court’s

attention. Even then, the entirety of his position was based on the

unsupported affidavit of his wife which offered little information about the

relationship apart from what Juror 351 had already disclosed. Although Julie

indicated she was aware of the averments made in her affidavit while the trial

was ongoing, Martinez offers no explanation for the delay in bringing the

matter before the trial court. He further offers no proof that Juror 351 was

dishonest during voir dire, but merely speculates she lied or omitted details

about the closeness or extent of her relationship with Julie. Rank speculation

is insufficient to justify the relief sought. The trial court did not err in refusing

to grant Martinez a new trial on that basis.

3 Kentucky Rules of Criminal Procedure.

6 Next, Martinez argues the trial court erred in allowing S.M. to testify

about acts of sexual abuse which occurred at the Latonia soccer fields for

which no criminal charges had been brought. 4 Before trial, the Commonwealth

filed a notice pursuant to KRE 5 404(c) that it intended to introduce evidence of

other uncharged sexual acts. Martinez asserts the sole purpose of the evidence

was to inflame the jury by showing he had a criminal disposition to sexually

assaulting his minor daughter, and that the trial court should have therefore

granted his motion to exclude it. We disagree.

The general rule is well-established “that evidence of other crimes is not

admissible to show that a defendant is a person of criminal disposition.”

Gasaway v. Commonwealth, 671 S.W.3d 298, 333 (Ky. 2023) (citing KRE

404(a)). However, such evidence may be admissible when offered for a purpose

other than criminal predisposition “such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or

accident; or . . . [i]f 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.” KRE 404(b)(1)-(2). Trial courts are

to assess the relevance, probativeness, and prejudice of the evidence of other

crimes or wrongs when determining its admissibility. Leach v. Commonwealth,

571 S.W.3d 550, 554 (Ky. 2019). We review evidentiary rulings under KRE

4 Latonia is located in Kenton County, Kentucky. Martinez was indicted for these alleged acts in that county. 5 Kentucky Rules of Evidence.

7 404(b) for abuse of discretion. Gasaway, 671 S.W.3d at 331. An abuse of

discretion occurs when “the trial judge’s decision was arbitrary, unreasonable,

unfair, or unsupported by sound legal principles.” Commonwealth v. English,

993 S.W.2d 941, 945 (Ky. 1999).

The Commonwealth sought to introduce evidence of the sexual assaults

which occurred at the Latonia soccer fields to prove motive, intent, plan,

knowledge, opportunity, or absence of mistake. Those acts included oral and

vaginal sex between S.M. and Martinez. The trial court evaluated the proposed

evidence under the three-part test articulated in Leach and determined it was

admissible. We discern no abuse of discretion in the trial court’s ruling.

“[E]vidence of similar acts perpetrated against the same victim are almost

always admissible” for 404(b) purposes. Noel v. Commonwealth, 76 S.W.3d

923, 931 (Ky. 2002). Martinez put forth a defense of total denial of any illicit

acts against his daughter thereby putting in issue his motive, intent, plan,

knowledge, opportunity, or absence of mistake. The evidence adduced at trial

revealed a common scheme whereby Martinez would isolate S.M. before orally

sodomizing and vaginally raping her, thus evincing a pattern for the bad acts.

Martinez articulates no basis of prejudice resulting from S.M.’s testimony

recounting similar uncharged acts of rape and sodomy. The jury had been

made fully aware of the sordid details of his acts of continuing abuse against

S.M. We are unconvinced testimony regarding the Latonia soccer field

incidents caused undue prejudice such as to require its exclusion. See KRE

8 403; Harp v. Commonwealth, 266 S.W.3d 813, 822-23 (Ky. 2008). The trial

court acted within its discretion in permitting the testimony.

Third, Martinez contends S.M.’s mother improperly gave victim impact

testimony in the guilt phase of trial. He concedes this error is unpreserved and

requests palpable error review under RCr 10.26. “Under this rule, an error is

reversible only if a manifest injustice has resulted from the error. That means

that if, upon consideration of the whole case, a substantial possibility does not

exist that the result would have been different, the error will be deemed

nonprejudicial.” Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006) (quoting

Graves v. Commonwealth, 17 S.W.3d 858, 864 (Ky. 2000)). A palpable error is

“easily perceptible, plain, obvious, and readily noticeable.” Brewer v.

Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006). In other words, a palpable

error occurs where “the defect in the proceeding was shocking or

jurisprudentially intolerable.” Martin, 207 S.W.3d at 4.

During her testimony, the Commonwealth asked S.M.’s mother how the

abuse had impacted her daughter. In response, she stated, “Her trust in

everybody is different. She doesn’t trust no man. Not even her family. It’s

impacted a lot of us. Our whole family.” Martinez claims these statements

rendered his trial fundamentally unfair. Again, we disagree.

Evidence of emotional injuries to a victim is relevant and admissible to

prove the fact of a sexual assault so long as the evidence pertains to “behavior

or conduct that is within the understanding of ordinary personal experience[.]”

Blount v. Commonwealth, 392 S.W.3d 393, 397 n.3 (Ky. 2013) (citing Dickerson

9 v. Commonwealth, 174 S.W.3d 451, 471-72 (Ky. 2005)). That is to say, our

decision in Dickerson permits the victim or a person familiar with the victim to

describe observed changes in the victim's behavior following the alleged

assault. 174 S.W.3d at 471-72. Evidence of this sort is especially probative to

contradict a defendant’s denial that the assault occurred. Id.

In Alderson v. Commonwealth, 670 S.W.3d 884, 893 (Ky. 2023), we held

that “victim impact evidence masquerading as victim background evidence is

not permissible as the ‘introduction of victim impact evidence during the guilt

phase is reversible error.’” (Quoting Tackett, 445 S.W.3d at 33). While the

Commonwealth is certainly permitted to “introduce evidence, after a

determination of guilt, relevant to the impact of the crime upon the victim,

including any physical, psychological, or financial harm” pursuant to KRS

532.055(2)(a)(7), we have consistently disapproved of the use of this type of

evidence when determining guilt. Roe v. Commonwealth, 493 S.W.3d 814, 823

(Ky. 2015). However, the Commonwealth is “entitled to show the jury that the

victim was not a mere statistic, but a living person[.]” Id. (quoting Bennett v.

Commonwealth, 978 S.W.2d 322, 324-26 (Ky. 1998)). “The line between

relevant-background information and prejudicial-impact testimony is a narrow

one; but we essentially distinguish the two forms of testimony by inquiring

whether the witness was overly emotional, condemnatory, or accusatory in

nature.” Id. at 824 (citing Foley v. Commonwealth, 953 S.W.2d 924, 937 (Ky.

1997)). Another “way to determine the difference between victim impact

evidence and victim background evidence is whether the evidence is ‘aimed

10 primarily at appealing to the jurors’ sympathies’ or ‘providing an understanding

of the nature of the crime[.]’” Alderson, 670 S.W.3d at 893 (quoting Tackett,

445 S.W.3d at 33). The issue of whether such evidence is truly relevant in a

particular case is committed to the sound discretion of the trial court. Davis v.

Commonwealth, 620 S.W.3d 16, 29 (Ky. 2021).

After reviewing the mother’s testimony, we are convinced it did not

approach the line described in Alderson and was an even further cry from

being labeled a palpable error. It was brief and straightforward, was not overly

emotional, inflammatory, or calculated to garner sympathy from the jury.

Rather, it was indicative of the emotional and psychological changes which

occurred because of the abuse Martinez inflicted on S.M. See KRS

532.055(2)(a)(7). The testimony was offered as factual evidence to counter

Martinez’s denial that any sexual assaults ever occurred. There was no error,

and certainly no palpable error.

Finally, Martinez claims his convictions should be reversed due to

cumulative error. Under the cumulative error doctrine, “multiple errors,

although harmless individually, may be deemed reversible if their cumulative

effect is to render the trial fundamentally unfair.” Brown v. Commonwealth,

313 S.W.3d 577, 631 (Ky. 2010). Cumulative error has been found “only where

the individual errors were themselves substantial, bordering, at least, on the

prejudicial.” Id. (citation omitted). As we have found no individual errors,

there can be no cumulative error.

11 For the foregoing reasons, the judgement of the Boone Circuit Court is

affirmed.

All sitting. All concur.

COUNSEL FOR APPELLANT:

Robert C. Yang Assistant Public Advocate Department of Public Advocacy

COUNSEL FOR APPELLEE:

Russell M. Coleman Attorney General of Kentucky

Courtney J. Hightower Assistant Attorney General