Opinion
NO. 2011-CA-000918-MR
11-16-2012
JEREMY WATKINS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Elizabeth B. McMahon Louisville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Jason B. Moore Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES M. SHAKE, JUDGE
ACTION NO. 10-CR-001071
OPINION
AFFIRMING
BEFORE: COMBS AND STUMBO, JUDGES; LAMBERT, SENIOR JUDGE. LAMBERT, SENIOR JUDGE: Jeremy Watkins appeals from his conviction in the Jefferson Circuit Court for sexual abuse in the first degree. Specifically, he alleges evidentiary errors in the admission of evidence, that the court erred by refusing to strike two jurors for cause, and that the trial court improperly coerced the jury to reach a verdict after it was deadlocked. Upon a thorough review of the record, we disagree and affirm the Jefferson Circuit Court.
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580. Senior Judge Lambert authored this opinion prior to the completion of his senior judge service effective November 2, 2012. Release of the opinion was delayed by administrative handling.
Watkins was indicted by a Jefferson County grand jury on April 8, 2010, with four counts of sexual abuse and one count of first degree sodomy. The charges arose from Watkins' sexual abuse of M.T., the daughter of his former girlfriend. The abuse took place between January 2006 and December 2009, during a time in which M.T. was living with Watkins and her mother, and was less than twelve years old. Watkins entered a plea of not guilty to all charges.
During the course of the investigation, Watkins was interviewed by a detective with the local Crimes Against Children Unit ("CACU"). In the recorded interview, Watkins stated that it was impossible for him to have wanted to sexually abuse a child because he had also been sexually abused himself as a child. Watkins then proceeded to tell the detective what happened on the days of the alleged abuse, giving a statement the Commonwealth presented to the jury as a confession. Thereafter, in a telephone call with his fiancée from jail, Watkins indicated that his statements in the interview were inaccurate and that he would ask his attorney to have the statements excluded at trial.
Prior to trial, during voir dire, one of the venire members admitted that she was a social worker in Jefferson County and had investigated cases of alleged sexual abuse as part of her job. Another venire member disclosed that she was a registered nurse at a treatment facility where she had assisted in performing patient assessments on children who had been sexually abused. Both individuals stated that they could consider the evidence and render a fair and impartial verdict in the case. The trial court refused to strike either individual for cause and Watkins was forced to exhaust his peremptory strikes to exclude them.
At trial, M.T. testified to several occasions where Watkins touched her breasts, her vagina, and penetrated her with his fingers. Watkins took the stand and denied touching her in an inappropriate manner, but admitted to "treating" her for a rash from an allergic reaction. He admitted to touching her body during this "treatment" and leaving his hands "down there too long." Watkins also admitted that he "felt like he was going to [get aroused]" when this happened. Both the recorded interview and the jail phone call were admitted at trial, over Watkins' objection.
At the conclusion of trial, the jury deliberated for three hours before sending a note to the court that it was having difficulty reaching a unanimous verdict. The trial court called the jury out and read the text of RCr 9.57(1), then sent them back for further deliberation. The jury eventually reached a verdict and found Watkins guilty of sexual abuse in the first degree and sentenced him to five-years' imprisonment, which was imposed by the judge. Watkins now appeals to this Court.
We first address Watkins's allegation that the trial court erred by refusing to strike the social worker and registered nurse for cause. Pursuant to RCr 9.36, a motion to strike for cause should only be granted where "there is reasonable ground to believe that a prospective juror cannot render a fair and impartial verdict on the evidence." A trial court must "weigh the probability of bias or prejudice" against the "juror's responses and demeanor." Shane v. Commonwealth, 243 S.W.3d. 336, 338 (Ky. 2007). We review a trial court's decision not to strike a juror for abuse of discretion. Adkins v. Commonwealth, 96 S.W.3d 779, 796 (Ky. 2003).
In the present case, both jurors indicated that they could be fair and impartial. Moreover, although both jurors had professionally encountered children who had been victims of sexual abuse, their demeanor and responses to questions during voir dire, when taken as a whole, indicated their ability to consider the evidence before them and render a fair and impartial judgment.
Notwithstanding this fact, we find it necessary to distinguish this case from Alexander v. Commonwealth, 862 S.W.2d 856, 864 (Ky. 1993), overruled on other grounds by Stringer v. Commonwealth, 956 S.W.2d 883, 891 (Ky. 1997). In Alexander, a venire member identified herself as an investigative worker for Child Protective Services in a working relationship with CACU, and stated that her position would affect her ability to be impartial. After further questioning, she eventually stated that she could consider the evidence and make a decision without being influenced by her position. However, in Alexander, the key witness for the prosecution was also a CPS worker, and the venire member in question had been assigned to work with the same CACU unit in which the CACU detective who investigated the case was assigned. The Supreme Court found that "the probability of bias on behalf of [the juror] was so great that it was an abuse of the trial court's discretion to fail to excuse her for cause." Alexander, supra, at 864. We find the present case to be distinguishable. To begin, the social worker in this case never indicated that her position would affect her ability to be impartial. Moreover, although she was employed by Child Protective Services, no witness from that agency played a role in this trial. As there was no direct professional relation to a testifying witness, and as the venire member maintained throughout voir dire that she could be fair and impartial, we find no abuse.
Accordingly, we now turn to the second issue presented for our review: whether the trial court erred by allowing Watkins's recorded statement from the interview and the jail phone call to be played before the jury. Watkins challenges their admission on the grounds that neither was relevant, and that any relevancy was outweighed by the danger of unfair prejudice.
We review evidentiary rulings for abuse of discretion. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Id.
We first address Watkins's statement during the recorded interview that he was abused as a child. Watkins claimed that the portion of his taped interview where he admitted to being sexually abused as a child was irrelevant and would unnecessarily prejudice the jury. The Commonwealth argued that the statement was relevant to provide context to other statements he made in the interview, and that it was relevant to explain Watkins's ultimate admission that he had, in fact, touched M.T. The trial court allowed the statement to come in, but specifically prohibited the Commonwealth from arguing that the offenses against M.T. were part of any ongoing cycle of abuse.
Under KRE 401, all evidence that tends to make the existence of any fact of consequence more or less probable is relevant evidence. Nonetheless, relevant evidence is properly excluded where its probative value is outweighed by the danger of unfair prejudice. KRE 403.
In the present case, Watkins's statement that he was abused met at least some minimal standard of relevance, as it tended to explain other statements he made during the interview. Indeed, the rest of the interview would have left the jury confused without this key piece of information. Watkins presented his own abuse as the reason he would never abuse a child himself. Accordingly, we find that the statement was properly construed as relevant and as having probative value. Furthermore, the relevance of the statement was not outweighed by the danger of unfair prejudice, as the fact of Watkins's own abuse did not make his abuse of M.T. any more or less likely. Regardless, the trial court precluded the Commonwealth from framing the statement in a light that suggested as much. Hence, the trial court did not abuse its discretion by allowing the statement in for that limited purpose.
We now turn to Watkins's final allegation of error on review, that the telephone conversation with his fiancée from jail was not relevant, or that its relevance was outweighed by the danger of unfair prejudice. During the conversation, when referencing his interview with CACU, Watkins stated: "That's nowhere near what happened ... I'm going to have to get Joe to throw that out."
The trial court allowed the recorded telephone call to be played for the jury at trial. When Watkins testified, he explained his statement to mean that the detective interviewing him had confused him by asking questions too quickly, and that he had only touched M.T.'s upper thighs when applying hydrocortisone cream to a rash.
Watkins again alleges that the telephone conversation was not relevant. However this assertion is completely meritless. The telephone conversation indicated that Watkins knew his statement to police was inculpatory, and it called into question his truthfulness with police investigators. Such information is relevant.
Watkins further alleges that the phone call should not have been admitted because allowing a jail phone call at trial is akin to having a prisoner walk into the courtroom in shackles. This assertion is also meritless. Watkins has cited no law to the Court in support of this position.
Other than cases actually involving inmates appearing in court in shackles.
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Watkins last argument with respect to the phone call was that it involved trial strategy with his lawyer. However, Watkins was speaking to his fiancée and not his counsel, and it could not have been actual trial strategy as his counsel never moved to exclude the call. Hence, we find no error.
Accordingly, we turn to the final issue raised on appeal, whether the trial court erred by instructing the jury to continue deliberating. During deliberations, a juror sent a note to the court asking: "What do we do when we can't reach an agreement?" Defense counsel suggested that the court send a letter back to the jury stating: "Do you think additional time would be useful?" The trial court did so. The jury sent a letter back replying: "No decisions are set. Still have not reached unanimous verdict." When the trial court inquired as to whether the jury had reached a verdict on any of the five charges, and the jury responded that it had reached a verdict on four out of the five charges.
Over defense counsel's objection, the court brought out the jury and read the text of RCr 9.57(1) aloud to them before sending them back to the jury room to deliberate further. Thereafter, the jury found Watkins guilty of one count of first degree sexual abuse and acquitted him of the other four charges.
Watkins argues that reading the text of RCr 9.57(1) to the jury coerced the jury into reaching a decision when it was clear they could not arrive at a unanimous verdict. RCr 9.57(1) reads as follows:
(1) If a jury reports to a court that it is unable to reach a verdict and the court determines further deliberations may be useful, the court shall not give any instruction regarding the desirability of reaching a verdict other than one which contains only the following elements:Appellant concedes that the trial court read from RCr 9.57 verbatim, and that no other instructions were given to the jury.
(a) In order to return a verdict, each juror must agree to that verdict;
(b) Jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;
(c) Each juror must decide the case, but only after an impartial consideration of the evidence with the other jurors;
(d) In the course of deliberations, a juror should not hesitate to reexamine his or her own views and change his or her opinion if convinced it is erroneous; and
(e) No juror shall surrender his or her honest conviction as to the weight or effect of the evidence solely because of the opinion of other jurors, or for the mere purpose of returning a verdict.
We cannot find that it was error for the court to read the rule on jury deliberations to the jury. Indeed, this Court can think of no better action to take at such a time. As the Supreme Court of Kentucky has noted, individual jurors' beliefs as to whether further deliberations would be useful does not control. Commonwealth v. Mitchell, 943 S.W.2d 625, 627 (Ky. 1997). Rather, it is the trial judge who determines whether further deliberations may be useful. Id.
Accordingly, we find no error. There is no indication that reading RCr 9.57 to the jury after three hours of deliberation coerced a verdict.
In light of the foregoing, we affirm the Jefferson Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Elizabeth B. McMahon
Louisville, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Jason B. Moore
Assistant Attorney General
Frankfort, Kentucky