Colvard v. Commonwealth

309 S.W.3d 239, 2010 WL 997405
CourtKentucky Supreme Court
DecidedApril 9, 2010
Docket2007-SC-000477-MR
StatusPublished
Cited by32 cases

This text of 309 S.W.3d 239 (Colvard v. Commonwealth) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Colvard v. Commonwealth, 309 S.W.3d 239, 2010 WL 997405 (Ky. 2010).

Opinions

Opinion of the Court by

Justice VENTERS.

Appellant, Fred Colvard, was convicted by a Jefferson Circuit Court jury of one count of first-degree sodomy, two counts of first-degree rape, one count of first-degree burglary, and of being a second-degree persistent felony offender (PFO II). For these crimes, Appellant was sentenced to life imprisonment. Appellant now appeals to this Court as a matter of right. Ky. Const. § 110.

Among other things, Appellant argues on appeal that certain testimony from medical personnel was improperly admitted through the hearsay exception under KRE 803(4). Because we find that our previous interpretation of the hearsay exception for “statements for purposes of medical treatment or diagnosis” was too broad, we find that the testimony was inappropriate. In addition, several other hearsay statements from other witnesses were improperly admitted. Because, in combination, the errors were not harmless, we reverse Appellant’s conviction and remand this matter for a new trial. We will address Appellant’s other arguments which may arise in his new trial to provide guidance to the trial court.

FACTUAL AND PROCEDURAL, BACKGROUND

On March 2, 2006, Appellant allegedly sexually assaulted two girls, D.J. and D.Y., in their bedroom. D.J. and D.Y. were six and seven years old, respectively, at the time of the events. Appellant knew the children because not only did he live in the same apartment complex as them, but just a few months before, he was engaged to marry their grandmother. The grandmother ended the engagement when she learned that Appellant was convicted of attempting to rape a ten-year-okl girl in 1994.

When D.J. and D.Y. told their mother that they had just been sexually assaulted by Appellant, she immediately reported it to the authorities. The girls were then medically examined and interviewed by several medical professionals. The medical examinations turned up no DNA or other physical evidence connecting Appellant to the crime. However, the examinations were not inconsistent with the girls’ allegation of sexual assault.

A jury trial was conducted and the jury found Appellant guilty of two counts of first-degree rape, one count of first-degree sodomy, and one count of first-degree burglary. He was also convicted of PFO II and the jury recommended sentences of twenty years for the burglary and life on each of the sex offenses. Those sentences were all enhanced to life imprisonment as a result of the PFO II conviction. Additional facts will be developed further below, as needed.

I. HEARSAY TESTIMONY WAS IMPROPERLY ADMITTED UNDER KRE 803(1); EDWARDS V. COMMONWEALTH IS OVERRULED

Jennifer Polk, Dr. Cole Condra, and Dr. Lisa Pfitzer are medical personnel who testified at trial that the victims identified [243]*243Colvard as the perpetrator of the crimes committed against them. Because the testimony of each of these medical personnel implicates KRE 803(4)1 and the ongoing viability of the extension of that rule created in Edwards v. Commonwealth, 833 S.W.2d 842 (Ky.1992) (overruled on other grounds by B.B. v. Commonwealth, 226 S.W.3d 47 (Ky.2007)), we consider Col-vard’s allegations of error as it relates to these medical witnesses together.

A. Jennifer Polk

Polk, an EMT who responded to the emergency call, was called by the Commonwealth to testify about the events of March 2, 2006. Over Colvard’s objection, Polk was allowed to testify that the first child to whom she spoke said that “Fred from number seven [Appellant] ... stuck his ‘dick’ in her.” Polk also testified that the second child to whom she spoke told her, in substance, that Appellant had “hurt” her anus. Appellant timely objected to the testimony, but the trial court overruled the objection upon the basis that it was admissible under KRE 803(4).

B. Dr. Condra

Appellant argues that Dr. Condra improperly gave testimony about statements DJ made to the triage nurse at the hospital. Dr. Condra testified from notes made by the nurse on March 2, 2006, when the children were initially admitted into the hospital for evaluation. Among other things, Dr. Condra testified that D.J. told the triage nurse that Appellant sexually abused her. He also testified that D.J. told the nurse that “Fred has been f* * *ing her, putting his weenie in her private parts.”

Dr. Condra also testified that D.J. and D.Y. informed him that they were sexually assaulted that day “and over the past months.”2

C. Dr. Pfitzer

Appellant argues that Dr. Pfitzer, a treating pediatrician providing follow-up examination and treatment to D.Y. and D.J., should not have been permitted to testify as to the medical history provided by G.W., the girls’ mother. Appellant timely objected to the evidence, but his objection was overruled.

Dr. Pfitzer testified that she saw the children as a result of sexual abuse allegations made against “a neighbor” named “Fred” and that the allegations involved vaginal and anal penetration. Dr. Pfitzer also testified that D.J.’s mother reported that D.J. told her that “Fred was f* * *ingus.”

D. KRE 803(4.) and Edwards v. Commonwealth

As previously noted, the testimony of these medical personnel implicates KRE 803(4), the medical diagnosis exception to the hearsay rule. KRE 803(4) provides that “[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 diagno[244]*244sis” are not excluded by the hearsay rule even though the declarant is available as a witness. However, the general rule is that the identity of the perpetrator is not relevant to treatment or diagnosis. Souder v. Commonwealth, 719 S.W.2d 730, 735 (Ky.1986) (overruled on other grounds by B.B., 226 S.W.3d at 47).

However, in Edwards, this Court recognized an exception to the identification rule in cases where a family or household member is the perpetrator of sexual abuse against a minor of that household. See also J.M.R. v. Commonwealth of Kentucky, Cabinet for Health and Family Services, 239 S.W.3d 116 (Ky.App.2007) (applying exception). In Edwards, we relied on United States v. Renville, 779 F.2d 430 (8th Cir.1985), as persuasive authority for the family, or household member, exception to the general rule. Therein, we acknowledged:

In Renville, the Court made this exception to the general rule that physicians rarely have reason to rely on statements of identity because of two important aspects involved in the case: (1) the physician was not merely diagnosing and treating the child/patient for physical injuries but psychological injuries as well, and (2) the abuser was a family, household member.
The physician in that case testified that he was treating the child for her emotional and physical trauma. He also said that the identity of the abuser was extremely important to him in helping the child work through her problems.

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Cite This Page — Counsel Stack

Bluebook (online)
309 S.W.3d 239, 2010 WL 997405, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colvard-v-commonwealth-ky-2010.