Pendleton v. Commonwealth

685 S.W.2d 549, 1985 Ky. LEXIS 208
CourtKentucky Supreme Court
DecidedFebruary 28, 1985
StatusPublished
Cited by112 cases

This text of 685 S.W.2d 549 (Pendleton 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
Pendleton v. Commonwealth, 685 S.W.2d 549, 1985 Ky. LEXIS 208 (Ky. 1985).

Opinions

WINTERSHEIMER, Justice.

This appeal is from a judgment based on a jury verdict convicting Pendleton of first-degree rape and first-degree sodomy. He was sentenced to life in prison on each charge.

Although there are six claims of error, the most important issue involves the excluded testimony from a psychologist who had administered tests and offered expert opinion that Pendleton’s psychological profile was not indicative of or consistent with that of a sex offender. The testimony was taken on avowal.

The other questions are whether it was proper to allow the child victim to testify, whether a continuance should have been granted for an absent defense witness, whether the testimony about instances of past sexual abuse from the victim’s sister should have been admitted, whether references to collateral criminal activity should have been admitted, and whether the prosecution’s closing argument was proper.

The principal witness was the 6-year-old victim. The child was staying with Pendle-ton at the time of the alleged incidents. Pendleton and his wife were separated. She described the assaults on her with the use of anatomically correct dolls. On cross-examination she denied ever telling anyone including two defense witnesses that the father had done anything to her. Towards the end of her cross-examination, she refused to listen to the questions and placed her fingers in her ears. The defense objected to her competency to testify because they believed she had no conception of the oath. '

The victim’s 14-year-old sister testified, over objection, that she had been sexually abused by her father over a period of 6 or 7 years, although there was no sexual intercourse. The older sister also testified to a nonsexual assault. The jury was admonished to disregard that testimony.

The defense attempted to introduce the testimony of a psychologist regarding tests conducted on Pendleton. The trial court refused to allow the psychologist to testify but permitted his testimony as an avowal. Pendleton testified in his own defense and denied all allegations charged.

The jury returned a verdict of guilty on both charges and gave Pendleton two life sentences. This appeal followed.

This Court affirms the judgment of the circuit court.

The trial judge correctly ruled that the 6-year-old victim was competent to testify. Whether a witness is competent is a question for the sound discretion of the trial court. Unless that discretion is abused, it will not be disturbed on appeal. See Moore v. Commonwealth, Ky., 384 S.W.2d 498 (1964); Capps v. Commonwealth, Ky., 560 S.W.2d 559 (1977). There was no abuse of discretion.

The trial judge did not commit reversible error when he denied the motion of Pendleton for a continuance. Pendleton maintains that the trial judge committed reversible error when he denied the defendant’s motion for a continuance because of the absence of a potential witness. The affidavit submitted in this case does not meet the requirements of the rule which require the affidavit show the materiality of the evidence expected to be obtained and that due diligence has been used to obtain [552]*552the evidence. The facts which Pendleton would have used the missing witness to prove were presented to the jury through the victim’s testimony. The defense theory was not hampered by the witness’s absence. Under all the circumstances the denial of the continuance was nonprejudicial and the trial judge acted within his authority and did not abuse his discretion. RCr 9.24. A reviewing court will not disturb such a decision unless it is clearly demonstrated to be an abuse. Davidson v. Commonwealth, Ky., 555 S.W.2d 269 (1977).

The issue regarding evidence of past sexual misconduct by the accused with his daughter Janet who was a witness at the trial is not reversible error.

Evidence of independent sexual acts between the accused and persons other than the victim are admissible if such acts are similar to that charged and not too remote in time provided the acts are relevant to prove intent, motive or a common plan or pattern of activity. The acts performed on Janet were of a similar nature as those performed on April. Janet’s testimony was admissible as showing a method of operation of sexual activity with his young daughters and to indicate a common and continuing pattern of conduct on the part of the accused.

Contrary to the language in Russell v. Commonwealth, Ky., 482 S.W.2d 584 (1972), no evidence is admissible to show “lustful inclination.” This Court is uncertain as to what is meant by the broad and subjective phrase “lustful inclination.” The better standard requires evidence to be the type that shows a common plan or pattern of activity as stated above.

Kentucky, like many other jurisdictions, has consistently followed the general rule that evidence of other criminal acts of the accused is inadmissible unless it comes within certain well-defined exceptions which must be strictly construed. Jones v. Commonwealth, Ky., 198 S.W.2d 969 (1947).

Evidence of other crime is admissible when the crime has a special relationship to the offense charged. Such evidence would show motive, identity, absence of mistake or accident, intent, or knowledge, or common scheme or plan. See Lindsay v. Commonwealth, Ky., 500 S.W.2d 786 (1973); Leigh v. Commonwealth, Ky., 481 S.W.2d 75 (1972); Rake v. Commonwealth, 450 S.W.2d 527 (1970), Spencer v. Commonwealth, Ky., 554 S.W.2d 355 (1977); Wonn v. Commonwealth, Ky.App., 606 S.W.2d 169 (1980).

Evidence of other crimes of sexual misconduct is also admissible for the purpose of showing motive, a common pattern, scheme or plan. See Keeton v. Commonwealth, Ky., 459 S.W.2d 612 (1970), Spencer v. Commonwealth, supra; Jones v. Commonwealth, supra.

So much of Russell v. Commonwealth, Ky., 482 S.W.2d 584 (1972), is overruled to the extent that it relates to the admission of evidence used to prove lustful inclination in the accused and that case is limited to the same standards that are provided for other crimes, that is, a pattern of activity, common plan or motive and scheme. Rigsby v. Commonwealth, Ky., 495 S.W.2d 795 (1973), is overruled to the same extent.

The testimony of the witness was admissible, not to show lustful inclination, but to show motive, common pattern scheme or plan, or common modus operandi. Young v. Commonwealth, Ky., 335 S.W.2d 949 (1960).

Pendleton was not denied due process of law or his right to a fair trial by the evidence of prior acts of assault.

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Bluebook (online)
685 S.W.2d 549, 1985 Ky. LEXIS 208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pendleton-v-commonwealth-ky-1985.