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THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: JANUARY 18, 2024 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2022-SC-0301-MR
DURRELL DAVIS APPELLANT
ON APPEAL FROM KENTON CIRCUIT COURT V. HONORABLE KATHLEEN LAPE, JUDGE NO. 21-CR-01403
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Durrell Davis was indicted on charges of sodomy in the first degree,
victim under 12, and sexual abuse in the first degree, victim under 12, relative
to conduct allegedly perpetrated against his girlfriend’s minor daughter. Both
charges were alleged to have occurred in a continuing course of conduct 1 over
a four-and-a-half-year period. Following a jury trial, Davis was convicted and
received a life sentence. He now appeals as a matter of right. 2 We affirm.
1 Kentucky Revised Statutes (KRS) 501.100(2) (“A person may be charged with committing an offense against a vulnerable victim in a continuing course of conduct if the unlawful act was committed against the same person two (2) or more times over a specified period of time.”). It is undisputed that each of the crimes charged qualified as an “offense against a vulnerable victim” as that term is defined in KRS 501.100(1).
2 KY. CONST. §110(2)(b). FACTS AND PROCEDURAL HISTORY
In late 2018, after a presentation on body safety and inappropriate
touching at her elementary school, Nicole 3 reported to her second-grade
teacher that Davis had touched her in her “bathing suit area.” 4 The teacher
alerted the appropriate authorities and an investigation into potential sexual
abuse was initiated. The investigation revealed Davis had previously been
involved in a sexual relationship with Nicole’s mother, DeeDee, and would often
stay overnight at DeeDee’s apartment in Covington, Kentucky. Nicole disclosed
that Davis abused her when she was between three and five years of age. She
stated Davis would remove her clothes and touch her private parts with his
hands, mouth, and penis. The abuse occurred on two or three occasions and
Davis warned her not to tell anyone what had happened.
During a voluntary interview with police on March 15, 2019, Davis stated
he was a father-figure to Nicole and considered her his “starter-daughter”
although they were not biologically related. In response to the allegations
against him, he told investigators Nicole was a hypersexualized child who was
“thirsty” for knowledge about sex. She would often enter the room while he
and DeeDee were engaging in sexual relations, and she repeatedly tried to
touch and kiss his genitals. Davis said Nicole would often awaken him by
“grinding” on him or sitting on his face. He indicated that on one occasion,
3 In accordance with Kentucky Rules of Appellate Procedure (RAP) 7(B), we refer to the juvenile victim by a pseudonym to protect her privacy.
4 The presentation apparently used this term to refer to a child’s private parts.
2 Nicole masturbated him almost to the point of ejaculation before he awoke
sufficiently to stop the contact. Davis admitted to having dreams of having sex
with Nicole. He claimed to have told DeeDee about Nicole’s inappropriate
conduct, but she seemed unconcerned. Davis stated he left his relationship
with DeeDee when Nicole was three or four and had no contact with them after
about 2015 when he moved to Cincinnati, Ohio.
Sometime after the interview, Davis contacted several of his family
members and made incriminating statements. After the phone calls, Davis, his
mother, brother, and sister had a family meeting where Davis made more
horrific and damning admissions. He told his relatives Nicole was like “crack
cocaine” to him, he “had to have her,” and that he “loved the way [she] tasted.”
He said he “had never been so hard in his life” and that Nicole “brought out the
monster” in him. Davis indicated Nicole was coming on to him and he was just
giving her what she wanted. When pressed on how often things happened
between the two, he stated “10, 50, 80, 100, I don’t know how many times.”
A jury convicted Davis of sodomy in the first degree and sexual abuse in
the first degree. He received a life sentence for the sodomy conviction and a
concurrent five-year sentence for the sexual abuse conviction. This appeal
followed.
ANALYSIS
Davis now raises six allegations of error in seeking reversal. First, he
contends the continuing course of conduct language in the instructions
violated the rule laid down in Ramos v. Louisiana, 590 U.S. ___, 140 S.Ct. 1390
3 (2020). Second, and closely related to his first argument, he asserts the jury
instructions contained double jeopardy and unanimity violations. Next, Davis
argues the trial court failed to find a compelling need before permitting Nicole
to testify out of his line of sight. Fourth, Davis contends the trial court
erroneously permitted the Commonwealth to introduce improper KRE 5 404(b)
evidence against him. Davis next alleges the trial court prevented him from
putting forward a defense when it limited his cross-examination of a police
detective. Finally, he contends two police detectives were improperly permitted
to give irrelevant testimony during the penalty phase of the trial.
Several of the arguments raised on appeal were admittedly not preserved
for appellate review. To the extent his arguments are unpreserved, Davis
requests palpable error review pursuant to RCr 6 10.26. Although not properly
preserved, a palpable error “affects the substantial rights of a party” and “relief
may be granted upon a determination that manifest injustice has resulted”
from the error. RCr 10.26. To obtain a reversal based on an alleged palpable
error, a defendant must show such error was “shocking or jurisprudentially
intolerable.” Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006). “When an
appellate court engages in a palpable error review, its focus is on what
happened and whether the defect is so manifest, fundamental and
unambiguous that it threatens the integrity of the judicial process.” Id. at 5.
5 Kentucky Rules of Evidence.
6 Kentucky Rules of Criminal Procedure. 4 I. No Ramos violation occurred
Davis first argues the continuous course of conduct language in the
instructions violated Ramos and his right to a unanimous verdict. This issue
was admittedly not raised before the trial court and is unpreserved. We will
therefore review only for palpable error.
In Ramos, the United States Supreme Court simply held the Sixth
Amendment right to a unanimous verdict in criminal matters applies to the
states through the Fourteenth Amendment. 140 S.Ct. at 1397. Louisiana and
Oregon were the only two states directly affected by the ruling as those states
allowed for a conviction on a finding of guilt by ten jurors. Id. at 1394. Ramos
had no practical impact in the Commonwealth because “Kentucky has long
required criminal convictions by a unanimous jury verdict.” Capstraw v.
Commonwealth, 641 S.W.3d 148, 158 (Ky. 2022). See also Wells v.
Commonwealth, 561 S.W.2d 85, 87 (Ky. 1978) (“Section 7 of the Kentucky
Constitution requires a unanimous verdict reached by a jury of twelve persons
in all criminal cases[]”); KRS 29A.280(3) (“A unanimous verdict is required in
all criminal trials by jury”); RCr 9.82(1) (“The verdict shall be unanimous. It
shall be returned by the jury in open court[]”).
Nevertheless, Davis asserts inclusion in the jury instructions of the
continuing course of conduct language of KRS 501.100 violated Ramos and
created a unanimity issue. Although his argument is underdeveloped and
5 based primarily on speculation, supposition, and belief, 7 it is clear that Davis
seeks an expansive reading of the Ramos holding to cover a situation neither
contemplated nor ruled upon by the Supreme Court. While unanimity was
generally addressed, that opinion plainly does not reach the type of issue
raised herein. Davis raises no challenge to the validity of KRS 501.100 and
there is nothing in the record to indicate less than all twelve jurors voted for a
finding of guilt. Under the facts presented, Ramos is inapplicable in this
matter, and we decline Davis’s invitation to expand it beyond its clear and
narrow holding. There was no error, and certainly no palpable error.
II. The instructions did not violate unanimity or double jeopardy
Second, and closely related to his first argument, Davis contends the
instructions presented unanimity and double jeopardy violations as they did
not sufficiently differentiate between the acts identified as sodomy from the
acts identified as sexual abuse. He asserts the language in the instructions
made it possible for the jury to rely on the same conduct to convict him of the
two separate charged offenses. Davis acknowledges his challenges are
unpreserved and requests palpable error review. As an unpreserved alleged
error, absent a finding that manifest injustice resulted, no palpable error will
be deemed to have occurred. See Sexton v. Commonwealth, 647 S.W.3d 227,
7 Davis contends the verdict in his case did not reflect the “conscience of the community” but rather “the passions of a subset of the jury” which occurred “in the already pressurized environment” surrounding child sex cases. He baldly asserts that because the jury deliberated his guilt for just over an hour, there can be no certainty of unanimity in their decision.
6 232 (Ky. 2022) (holding that “reversal is not the universal, essential result of a
unanimous verdict error. Where manifest injustice will not result, this Court
can find no palpable error”). “In all cases presenting an unpreserved error
regarding a unanimous jury, the courts must ‘plumb the depths of the
proceeding’ and scrutinize the factual idiosyncrasies of the individual case.
That includes a consideration of the weight of the evidence.” Johnson v.
Commonwealth, 676 S.W.3d 405, 417 (Ky. 2023) (quoting Martin, 207 S.W.3d
at 4).
Davis presents a challenge based on what he characterizes as a
“multiple-acts” unanimous-verdict violation as described in Martin v.
Commonwealth, 456 S.W.3d 1, 6 (Ky. 2015). Further, he asserts the evidence
permitted the jury to convict him of two crimes based on the same act, thereby
resulting in a double jeopardy violation. He contends the sexual abuse
instruction merely required the jury to find he engaged in sexual contact with
Nicole without specifying what body parts were used to perpetrate the crime or
what act or acts would qualify as sexual contact. In his estimation, if the jury
were to conclude his act of touching Nicole’s vagina with his mouth constituted
deviate sexual intercourse sufficient to convict him of sodomy, it would
automatically also have to conclude he subjected Nicole to sexual contact. In
short, he contends one cannot engage in deviate sexual intercourse without
also engaging in sexual contact and thus the instructions were infirm as it
cannot be said with certainty that the jurors did not use the same conduct to
convict him of two separate crimes. His arguments are without merit.
7 The evidence adduced at trial revealed multiple instances of sexual abuse
comprised of two distinct categories of acts: oral sex and rubbing/touching of
genitals with hands. The instructions made clear that deviate sexual
intercourse required for a finding of guilt on the charge of sodomy related to
the sex organs of one person and the mouth of the other and the sexual
contact required for sexual abuse involved the touching of the sexual or
intimate parts of another for the purpose of sexual gratification. There were
two separate and discrete criminal acts which were each supported by
substantial testimony.
First-degree sexual abuse is properly classified as a lesser included offense of first-degree sodomy. Johnson v. Commonwealth, 864 S.W.2d 266, 277 (Ky. 1993). The distinction between the two offenses is the body part touched for purposes of sexual gratification. Sexual abuse requires “sexual contact,” KRS 510.110, which means “touching of the sexual or other intimate parts of a person,” KRS 510.010(7). Sodomy, on the other hand, requires “deviate sexual intercourse,” KRS 510.070, which means “any act of sexual gratification involving the sex organs of one (1) person and the mouth or anus of another,” KRS 510.010(1). The additional element in a sodomy offense is the specific sexual or intimate parts involved, namely, the mouth or anus.
Mash v. Commonwealth, 376 S.W.3d 548, 559 (Ky. 2012). Thus, whether
Davis’s convictions for sodomy and sexual abuse violate double jeopardy
depends on whether the sexual abuse was incidental to and thus subsumed by
the sodomy or was instead a separate criminal act. See Commonwealth v.
Burge, 947 S.W.2d 805, 811 (Ky. 1996) (adopting the test set forth in
Blockburger v. U.S., 284 U.S. 299, 304 (1932)).
8 The acts of Davis touching Nicole’s vagina with his hands and Nicole
grabbing Davis’s genitals and masturbating him were wholly unrelated to and
independent of the oral sodomy Davis inflicted on Nicole. The separate charge
of sexual abuse here was not based on contact related to the oral sodomies,
but on separate acts of sexual gratification. See Benet v. Commonwealth, 253
S.W.3d 528, 536 (Ky. 2008); Hampton v. Commonwealth, 666 S.W.2d 737, 739-
40 (Ky. 1984). There was no double jeopardy violation.
Further, the instructions sufficiently differentiated the criminal acts
necessary for a finding of guilt under each. This is simply not the type of
unanimity violation described in Martin. There was no error, and certainly no
palpable error as there can be no reasonable possibility a manifest injustice
occurred.
III. Davis waived any challenge to the trial court’s decision to shield Nicole from his line of sight
Davis next contends the trial court erred in failing to make a finding of a
“compelling need” for Nicole to be shielded from his sight line during her
testimony. He asserts the placing of a television set and other equipment
between himself and Nicole while she was on the witness stand violated his
constitutional right to confront his accuser. Our review of the record reveals
Davis waived any challenge to the trial court’s ruling.
Almost all issues are subject to waiver, whether from inaction or consent, even in a criminal case, and “[a] new theory of error cannot be raised for the first time on appeal.” Springer v. Commonwealth, 998 S.W.2d 439, 446 (Ky. 1999)[.] . . . The lone exception to this rule, of course, is when the question is whether the trial court had general subject-matter jurisdiction.
9 Commonwealth v. Steadman, 411 S.W.3d 717, 724 (Ky. 2013) (citations
omitted).
Prior to trial, the Commonwealth filed a motion pursuant to KRS
26A.140 and 421.350 seeking to permit Nicole to testify via closed circuit
television from outside the courtroom or, alternatively, to allow her to testify
out of Davis’s line of sight, citing the emotional trauma which would ensue
from Nicole having to see Davis, a substantial probability she would then be
unable to testify, and the emotional and physical consequences which would
befall her following her testimony. A hearing was held on the motion
approximately a week before trial, during which defense counsel acknowledged
that “by statute they are entitled to” the requested accommodation. After Davis
indicated his preference for using a whiteboard to shield Nicole from his view
rather than having her testify via closed circuit television, the trial court noted
its desire to protect Davis’s confrontation rights and agreed to allowing
placement of a whiteboard. Defense counsel further stated it was “fine” for
Nicole to enter the courtroom in a way that would prevent her from having to
see Davis.
At the beginning of the second day of trial and just before Nicole was to
testify, defense counsel objected to the use of any screening and informed the
trial court that although Davis had previously consented to using the
whiteboard accommodation, he now believed based on an unnamed Court of
Appeals opinion that the Commonwealth was required to show a compelling
need prior to being granted an accommodation for a witness such as Nicole. In 10 response, the Commonwealth indicated the objection was untimely, especially
considering Davis had consented to the accommodation at the pretrial hearing.
The trial court overruled Davis’s objection, noting there had been two pretrial
conferences to handle all pending motions and plenty of time to argue the
matter before trial commenced.
Davis now challenges the trial court’s ruling on the Commonwealth’s
motion for an accommodation, asserting KRS 421.350 mandates a finding of a
compelling need prior to allowing a child victim to testify outside the presence
of the defendant. His argument fails for two reasons. First, by its plain
language, KRS 421.350 is inapplicable as that statute concerns only child
victim testimony taken outside the courtroom, and here, Nicole admittedly
testified inside the courtroom. Second, and perhaps more importantly, Davis
has waived the right to raise this argument. He never raised KRS 421.350
before the trial court as a basis for seeking relief so he cannot now present this
new theory for the first time on appeal. Further, he explicitly consented to the
use of a screening mechanism, objecting only at an untimely and inappropriate
time to such screening. Davis is not now entitled to any relief.
IV. There was no error in allowing KRE 404(b) evidence
Davis next posits the trial court erroneously permitted the
Commonwealth to elicit testimony from Nicole about uncharged illicit sexual
acts which occurred in Ohio. He contends the evidence served only to show he
was predisposed to sexually assault a child and should have therefore been
excluded. We disagree.
11 Although Davis argues to the contrary, we discern this issue was not
properly preserved for appellate review. No objection to the introduction of this
portion of Nicole’s testimony appears on the record, nor have we been directed
to a ruling by the trial court. The Commonwealth filed the required notice
pursuant to KRE 404(c) indicating an intention to elicit other crimes evidence
from Nicole during trial. The trial court convened a hearing on the notice the
day before trial, but Davis challenged Nicole’s proposed testimony only on
competency grounds and noted alleged inconsistencies between statements she
made during her investigatory interview and those he made to police during his
own interview. No contemporaneous objection was lodged during Nicole’s trial
testimony. Thus, the issue is not preserved for appeal. However, in his reply
brief, Davis has requested we undertake a palpable error review of this issue.
As previously stated, an error is palpable only if it resulted in a manifest
injustice. Upon review, we discern no error, much less palpable error.
Nicole was on the witness stand for approximately twelve minutes. When
asked if Davis had ever touched her in a way she did not like, she testified
Davis “raped” her. Upon subsequent questioning by the Commonwealth, she
explained “rape” to her meant Davis touched her private parts with his penis,
hands, and mouth. She stated these acts occurred on more than one occasion
at her apartment and she also remembered things happening at “JuJu’s
house.” On cross-examination, Nicole said she thought JuJu lived in Ohio. No
other mention of any uncharged acts arose during Nicole’s testimony.
12 KRE 404(b) regulates the admissibility of evidence of other crimes,
wrongs, or acts. Such evidence “is not admissible to prove the character of a
person in order to show action in conformity therewith.” Id. The Rule provides
for two exceptions allowing such evidence to be admitted:
(1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; or
(2) If 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.
Id. Furthermore, “evidence of similar acts perpetrated against the same victim
are [sic] almost always admissible” to prove intent, plan, or absence of mistake
or accident. Lopez v. Commonwealth, 459 S.W.3d 867, 875 (Ky. 2015) (quoting
Noel v. Commonwealth, 76 S.W.3d 923, 931 (Ky. 2002)).
The question of whether uncharged misconduct should be admissible
“confront[s] . . . courts with a difficult choice between protecting defendants
against unfair prejudice and impeding the proof of charges by the prosecution.”
Robert G. Lawson, The Kentucky Evidence Law Handbook § 2.30[1][a] (2022
ed.). KRE 404(b) is “exclusionary in nature” and, as such, “any exceptions to
the general rule that evidence of prior bad acts is inadmissible should be
‘closely watched and strictly enforced because of the dangerous quality and
prejudicial consequences of this kind of evidence.’” Clark v. Commonwealth,
223 S.W.3d 90, 96 (Ky. 2007) (quoting O’Bryan v. Commonwealth, 634 S.W.2d
153, 156 (Ky. 1982)). We review a trial court’s decision to admit evidence
13 under KRE 404(b) for an abuse of discretion. Anderson v. Commonwealth, 231
S.W.3d 117, 119 (Ky. 2007). Such an abuse occurs only when the trial court’s
ruling was “arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
Here, there was little more than a fleeting mention of Nicole recalling
“things happening” while she and Davis were visiting JuJu’s house. The
Commonwealth quickly moved on from the topic and did not seek to obtain
details of any uncharged occurrences. The testimony did not draw an objection
for the defense and the trial court was never asked to rule on the
appropriateness and admissibility of the evidence. We can perceive no
prejudice suffered by Davis by this testimony, and certainly not sufficient harm
to overcome the general rule permitting admission of similar acts perpetrated
against the same victim. Furthermore, we are unpersuaded by Davis’s
suggestion that Nicole’s brief mention of unspecified acts occurring in Ohio
served only to show he was predisposed to sexually assaulting a child. There
being no prejudice, no manifest injustice, and no showing the trial court
abused its discretion, we conclude there was no error in Nicole’s testimony,
and undoubtedly no palpable error.
V. Davis was not prevented from presenting a defense
For his fifth allegation of error, Davis contends the trial court erred when
it prevented questioning of one of the investigating detectives about the use of
14 the “Reid Technique” of interrogation. 8 On cross-examination, the detective
was asked whether he had been trained in the technique and whether he was
aware of the controversy surrounding its use. The Commonwealth objected to
further questioning on relevancy grounds and the trial court agreed. Davis
asserts the ruling was flawed and prevented him from presenting an entire
defense. We disagree.
Recently, in Carson, this Court analyzed the use of testimony regarding
the Reid Technique. 621 S.W.3d at 447-51. There, under direct questioning
from the Commonwealth, a police officer described at length the methodology
underlying the technique and was allowed to state he was able to use its
behavioral analysis principles to determine from verbal and non-verbal cues
that the defendant was being deceptive during the interview. We held the
officer’s testimony went beyond the pale and infringed on the province of the
jury as he claimed to have specialized knowledge beyond that of a lay witness
which essentially gave him the ability to be a human lie detector.
On the contrary, in this matter it was the defendant who broached the
subject matter, hoping to undermine the reliability of his own statement to
police. Further, a review of the recorded interview reveals no adversarialism or
8 The Reid Technique is “a multi-phase interrogation technique in which an investigating officer analyzes the suspect’s behavior, looking for signs of deception, and then engages in a confrontational interrogation if they believe they spot such indicators.” Carson v. Commonwealth, 621 S.W.3d 443, 446 (Ky. 2021). Use of this method of interrogation has been subjected to great scrutiny and was one of the main motivating factors for the United States Supreme Court creating the Miranda warnings which are required to be given before any suspect can be interrogated. See Miranda v. Arizona, 384 U.S. 436, 448-55 (1966).
15 deceptive or dismissive practices for which the Reid Techniques is known. The
interview had previously been played for the jury and no concerns had been
raised. Contrary to his assertion, we cannot discern any relevance to
permitting further questioning regarding an interrogation method which was
not actually used during his interaction with police. The trial court did not err
in restricting this line of questioning.
VI. Penalty phase testimony was improper but harmless
For his final assertion of error, Davis argues two detectives were
permitted to give irrelevant testimony about the impacts of the investigation on
Nicole. During the penalty phase, two investigating detectives testified for a
total of approximately nine minutes. Pertinent to the issue raised by Davis, the
first detective stated his first interview with Nicole was ended early because she
“shut down” after her mother began crying and lost her composure and a
second interview was only marginally better than the first. The other detective
commented that upon speaking with staff at Nicole’s school, he was informed
Nicole would “be incontinent for a week or so” after any interaction with police.
Davis argues neither detective qualified as a “victim” under the definition
of KRS 421.500 9 and therefore their testimony regarding the emotional impacts
of the investigation on Nicole was infirm. Davis further contends the detectives’
9 After defining the term “victim” as one who is directly harmed as the result of certain crimes, KRS 421.500(1)(a) states: “[i]f the victim is a minor, incapacitated, or deceased, ‘victim’ also means one (1) or more of the victim’s spouse, parents, siblings, children, or other lawful representatives which shall be designated by the court[.]”
16 testimony was so improper and prejudicial that it incited the jury to give him
the maximum sentence. These allegations of error are concededly unpreserved.
KRS 532.055(2)(a)(7) allows the Commonwealth to present evidence
regarding “[t]he impact of the crime upon the victim or victims, as defined in
KRS 421.500, including a description of the nature and extent of any physical,
psychological, or financial harm suffered by the victim or victims[.]” We agree
with Davis that based on the definition of “victim” in KRS 421.500, neither
detective fits into that category, and further agree their testimony crossed the
line to be considered victim impact testimony. However, we conclude the error
was harmless and did not impact the outcome of Davis’s trial.
Each detective’s testimony was brief, gave a factual account of their
experiences investigating the crimes, did not tend to over-dramatize the
impacts of the crimes, and did not attempt to inflame the passions of the jury
or appeal for sympathy. The testimony was plainly not extreme, emotional, or
outrageous. Neither detective even alluded to the pending penalty decision nor
made a recommendation of the appropriate course of action for the jury to
take. Nevertheless, their testimony did constitute improper victim impact
evidence as it tended to show the victim’s mindset and the psychological
impact the crimes and ensuing investigation had on her.
Although the detectives were not competent under the statutory language
to qualify as “victims,” we can discern no undue prejudice from the testimony.
In no way could these brief statements be seen as having “substantially
swayed” the verdict in the penalty phase. See Winstead v. Commonwealth, 283
17 S.W.3d 678, 688-89 (Ky. 2010) (“A non-constitutional evidentiary error may be
deemed harmless [ ] if the reviewing court can say with fair assurance that the
judgment was not substantially swayed by the error.”). While the detectives’
testimony regarding their difficulties in interviewing the child victim and her
school personnel’s dissatisfaction with her resulting behaviors was erroneous,
there was no manifest injustice and thus the error does not rise to the level of
palpable error warranting the reversal Davis seeks.
CONCLUSION
For the foregoing reasons, the judgment of the Kenton Circuit Court is
affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Kathleen Schmidt Assistant Public Advocate
COUNSEL FOR APPELLEE:
Russell M. Coleman Kentucky Attorney General
Matthew R. Krygiel Assistant Attorney General