Metcalf v. Commonwealth

158 S.W.3d 740, 2005 WL 119576
CourtKentucky Supreme Court
DecidedApril 21, 2005
Docket2003-SC-0098-MR
StatusPublished
Cited by35 cases

This text of 158 S.W.3d 740 (Metcalf 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
Metcalf v. Commonwealth, 158 S.W.3d 740, 2005 WL 119576 (Ky. 2005).

Opinions

COOPER, Justice.

A McCracken Circuit Court jury convicted Appellant, Kevin Wayne Metcalf, of one count of sodomy in the first degree, KRS 510.070, and one count of sexual abuse in the first degree, KRS 510.110. The trial court sentenced him to twenty years imprisonment for the sodomy conviction and one year imprisonment for the sexual abuse conviction. Appellant appeals to this Court as a matter of right, Ky. Const. § 110(2)(b), asserting the following claims of error: (1) admission of uncharged acts in violation of KRE 404(b) and (c); (2) denial of his motion to suppress his confession; (3) improper interpretation by witnesses of inaudible portions of his audiotaped confession; (4) destruction of exculpatory evidence by the Commonwealth; (5) release of a subpoenaed witness by the Commonwealth without Appellant’s consent; and (6) the Commonwealth’s recall of two witnesses for rebuttal purposes during its case-in-chief. We reverse and remand this case for a new trial because of the improper admission of evidence of uncharged crimes. We will address those additional claims of error that are likely to recur upon retrial. Springer v. Commonwealth, 998 S.W.2d 489, 445 (Ky.1999).

Appellant’s convictions of sexual abuse and sodomy stem from allegations that he fondled and licked the vagina of his stepdaughter, C.I. The investigation began in [742]*742September 2001 when Stacey Albritton of the Cabinet for Families and Children received a complaint that Appellant had videotaped another stepdaughter, S.K., while she was undressing. Albritton and Kentucky State Police Detective Sam Steger went to Appellant’s residence and interviewed S.K., who related that Appellant took her upstairs and videotaped her as she removed all of her clothing except her panties. Albritton and Steger then interviewed C.I. and H.K., another stepdaughter. C.I. stated that during the Christmas holidays in 2000, Appellant carried her, kicking and screaming, to a trailer behind the home, and that once inside the trailer, he lifted her dress, touched her genitals, and then licked them, while restraining her. H.K. stated that while on a bicycle trip with Appellant, Appellant stopped to urinate and exposed his penis to her. All of the children were under twelve years old when these incidents occurred.

Steger and Albritton interviewed Appellant at the Department of Social Services (“DSS”) office. When Appellant did not provide any useful information, Steger offered to conclude the interview. At trial, Steger, Albritton, and two social workers, who were watching the interview through a two-way mirror for training purposes, testified that Appellant then broke down crying, admitted to all the allegations, and referred to himself as a “sick bastard.” He was placed under arrest.

The Commonwealth sought indictments for all three incidents, but the grand jury indicted Appellant only for the sexual abuse and sodomy of C.I. At trial, C.I., S.K., and H.K. all recanted their allegations, stating that they had jointly fabricated them to “scare” Appellant so that he would stop drinking. They explained that C.L’s father had beaten them when drunk and that they thought of the sexual abuse allegations because another relative had recently been jailed for sexually abusing his child and Appellant would be “scared” that the same thing would happen to him.

I. UNCHARGED ACTS.

Appellant made a pretrial motion in li-mine to exclude any evidence of his inappropriate sexual conduct involving S.K. and H.K. Appellant specifically sought to exclude testimony regarding the videotaping of S.K., the indecent exposure to H.K., and another allegation by H.K. that he induced her to watch a pornographic movie with him. The prosecutor conceded that the pornographic movie incident was inadmissible. The trial court agreed that the indecent exposure evidence should be excluded as irrelevant, but ruled that evidence of Appellant’s videotaping of S.K. was admissible under KRE 404(b)(2) because it explained why Albritton and Steger had gone to Appellant’s residence and interviewed C.I. During trial, however, the court ruled that evidence elicited during cross-examination of H.K. by defense counsel “opened the door” to admission of both the indecent exposure evidence and the pornographic movie evidence.

A. Preservation.

The Commonwealth asserts that these issues were not preserved for appellate review because they were inadequately preserved at trial. The in limine rulings were made on the morning of trial, and defense counsel did not further object during trial to the evidence of the videotaping of S.K. However, defense counsel did argue at trial that his cross-examination of H.K. had not “opened the door” for admission of evidence of the indecent exposure and pornographic movie. Because the issues were properly preserved by the in limine motions, we need not address whether defense counsel failed to preserve the issue because he did not specifically [743]*743state, “I object.” The Commonwealth cites Tucker v. Commonwealth, 916 S.W.2d 181, 183 (Ky.1996), for the proposition that the motion in limine was insufficient to preserve these issues for review. This argument ignores an entire sentence in KRE 103(d), which states, “A motion in limine resolved by order of record is sufficient to preserve error for appellate review.” As explained in Davis v. Commonwealth, 147 S.W.3d 709, 722-23 (Ky.2004), Tucker applies when the motion in limine is directed at a general area of inquiry, sometimes referred to as a “class of evidence,” Robert G. Lawson, The Kentucky Evidence Law Handbook, § 1.10[3][f], at 36 (4th ed. LexisNexis 2003), not a particular evidentiary fact. Appellant’s motion in limine and the trial court’s rulings thereon covered testimony regarding particular ev-identiary facts and thus properly preserved all three of these issues for appellate review.

B. Notice.

Appellant asserts that he did not receive notice of the Commonwealth’s intent to introduce these uncharged acts as required by KRE 404(c). However, the Commonwealth included this information in its bill of particulars. RCr 6.22. See Hayes v. Commonwealth, 58 S.W.3d 879, 881 (Ky.2001) (“The Commonwealth provided notice in its Bill of Particulars that it planned to introduce [appellant’s] three-year-old misdemeanor conviction ... ”). Further, the purpose of KRE 404(c) is to provide the defendant an opportunity to challenge the admission of the evidence. Tamme v. Commonwealth, 973 S.W.2d 13, 31 (Ky.1998). The fact that Appellant filed a motion in limine to suppress the evidence is proof that he was not prejudiced by a failure to receive formal notice. Soto v. Commonwealth, 139 S.W.3d 827, 859 (Ky.2004); Bowling v. Commonwealth, 942 S.W.2d 293, 300-01 (Ky.1997).

C. “Inextricably intertwined. ”

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” KRE 404(b).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Kenneth H Baker v. Andre Mulligan
Court of Appeals of Kentucky, 2025
Andre Mulligan v. Kenneth H Baker
Court of Appeals of Kentucky, 2025
Clinton Hulsey v. Commonwealth of Kentucky
Court of Appeals of Kentucky, 2024
Leroy Love v. Commonwealth of Kentucky
Kentucky Supreme Court, 2024
Angela Wynn Workman v. Commonwealth of Kentucky
Court of Appeals of Kentucky, 2024
State v. Taylor
Superior Court of Delaware, 2023
Donald Hoskins v. Commonwealth of Kentucky
Court of Appeals of Kentucky, 2023
Darion Dietrich v. Commonwealth of Kentucky
Court of Appeals of Kentucky, 2023
Barry Elliott v. Commonwealth of Kentucky
Kentucky Supreme Court, 2023
Jerry Beasley v. Commonwealth of Kentucky
Court of Appeals of Kentucky, 2023
Sheets v. Commonwealth
495 S.W.3d 654 (Kentucky Supreme Court, 2016)
Chesher v. Commonwealth
485 S.W.3d 347 (Court of Appeals of Kentucky, 2016)
Stansbury v. Commonwealth
454 S.W.3d 293 (Kentucky Supreme Court, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
158 S.W.3d 740, 2005 WL 119576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/metcalf-v-commonwealth-ky-2005.