Opinion
2023-SC-0160-MR
06-13-2024
ANTHONY BERGMAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
COUNSEL FOR APPELLANT: Molly Mattingly Assistant Public Advocate COUNSEL FOR APPELLEE: Russell M. Coleman Attorney General of Kentucky, Jenny L. Sanders Assistant Attorney General
NOT TO BE PUBLISHED
ON APPEAL FROM MCCRACKEN CIRCUIT COURT HONORABLE WILLIAM ANTHONY KITCHEN, JUDGE NO. 20-CR-00218
COUNSEL FOR APPELLANT: Molly Mattingly Assistant Public Advocate
COUNSEL FOR APPELLEE: Russell M. Coleman Attorney General of Kentucky, Jenny L. Sanders Assistant Attorney General
MEMORANDUM OPINION
Anthony Bergman was convicted by a McCracken County jury of first-degree rape, first-degree sodomy, first-degree incest, and being a first-degree persistent felony offender (PFO I). He received a total sentence of twenty years' imprisonment and appeals to this Court as a matter of right. On appeal, Bergman argues: (1) the trial court erred by denying his motion to inspect the victim's medical records pertaining to a prior rape allegation; and (2) his right to present a defense was violated by the Commonwealth's improper cross-examination of his expert witness. We affirm.
KY. CONST. § 110(2)(b).
In times of personal turmoil, Bergman often turned to his adult halfsister, Jessica, for emotional support. On April 11, 2020, Bergman showed up to Jessica's house unannounced to vent about difficulties he was having with his girlfriend. They drank alcohol and talked together while sitting around the firepit in her backyard. Jessica's seven-year-old child was watching a movie in bed at the time. Because Bergman had been drinking heavily, Jessica told him not to drive and invited him to spend the night on the couch.
We use a pseudonym to protect the victim's privacy.
While they were in the kitchen tidying up, Bergman hugged Jessica for an awkwardly long time. She told him she was tired and ready to go to bed. Bergman then scooped her up into his arms and carried her out of the kitchen. When Jessica asked what he was doing, Bergman told her he was taking her to bed. Jessica told him she could go by herself, but he did not let her down.
When Bergman reached Jessica's bedroom, he dropped her on the bed and laid on top of her. He told her, "I've always been so attracted to you. It's so sick." He lifted her shirt and started rubbing her body. Bergman then pulled her pants and underwear down. Jessica demanded Bergman to stop and reminded him that he was her brother. In a further effort to get Bergman to stop, Jessica told him she was on her period. Bergman replied he did not care and began to perform oral sex on Jessica.
Despite Jessica's repeated attempts to stop Bergman, he continued to violate her. He roughly inserted his fingers in her vagina before attempting to penetrate her with his penis. Bergman could not achieve a full erection and was only able to place the tip of his penis inside Jessica's vagina. He tried to stimulate himself by kissing Jessica's neck and biting her on the face. Bergman also intermittently grabbed Jessica by the throat and squeezed. He continually called Jessica's name throughout the attack and urged her to calm down.
Jessica was able to escape by telling Bergman she had to use the bathroom. He let her up and she was able to grab her cellphone and charger. In the bathroom, she had to wait for the phone to charge before calling her exboyfriend, Bryan Willis. After he did not answer, Jessica left him a frantic voicemail and series of texts begging for help. She asked Willis not to call the police. However, when Willis saw the messages, he went to her and called 911. At the time Willis arrived at Jessica's residence, she was screaming and crying in the street. She asked Willis to retrieve her child who was still in the house. Willis got Jessica to sit in his truck while he went inside to gather the child. The police arrived shortly thereafter.
The officers discovered Bergman naked and unconscious in Jessica's bed. When roused, Bergman claimed not to remember the events of the previous evening. The officers collected the pants Jessica had been wearing. She refused to go the hospital that night for a sexual-assault examination because her child was upset and there was no one to care for him until the child's father could pick him up.
After her child's father arrived the next morning, Jessica underwent a sexual-assault examination. The examining nurse confirmed Jessica was on her period and discovered abrasions to the hymen, which was swollen and irritated. Jessica also had abrasions on her outer vaginal area. The nurse documented bruising on Jessica's neck, wrists, and hands. DNA testing was performed on genital swabs taken from Jessica and a cutting of fabric from the crotch of the pants she was wearing on the night of the attack. No DNA foreign to Jessica was found on the swabs and a mixture of Jessica's DNA and two other individuals was found on the fabric cutting. Due to the complexity of the mixed profiles, no meaningful comparisons could be made. The fabric cutting was also tested for Y-STR DNA, which also revealed a mixture of two individuals with the major profile matching Bergman and his paternal relatives. A partial Y-STR profile taken from the genital swabs were too limited for meaningful comparison.
Y-STR (short tandem repeat) testing focuses solely on the presence of the Y (male) chromosome, ignoring female genetic material.
Bergman was indicted on charges of first-degree rape, first-degree sodomy, first-degree incest, first-degree strangulation, and PFO I. Following a jury trial, Bergman was acquitted on the strangulation charge and convicted of the remaining offenses. He received a total sentence of twenty years' imprisonment. This appeal followed.
Bergman first argues the trial court erred by denying his motion to inspect Jessica's medical records pertaining to a prior rape allegation. He argues these records potentially contained material impeachment evidence. We disagree.
Prior to trial, Bergman filed a motion to produce and inspect Jessica's medical records. In support of the motion, Bergman cited Jessica's statement to officers that she did not want to undergo a sexual assault examination "again" and referred to a rape allegation she had purportedly made against a person by the name of Anderson in 2015. At a hearing on the motion, Bergman candidly acknowledged the basis of his motion was "unsubstantiated rumors that [Jessica] made previous accusations of rape that may or may not have been accurate." The trial court denied Bergman's motion.
Under the Compulsory Process Clause, a criminal defendant has "the right to obtain and present exculpatory evidence, including impeachment evidence, in the possession of a third party that would otherwise be subject to . . . privilege." Commonwealth v. Barroso, 122 S.W.3d 554, 561 (Ky. 2003). Evidence is deemed exculpatory if it is "favorable to the accused and material to guilt or punishment[.]" Id. at 564. However, "in camera review of a witness's . . . records is authorized only upon receipt of evidence sufficient to establish a reasonable belief that the records contain exculpatory evidence." Id. at 564. This restrictive standard is necessary to prevent fishing expeditions and "'unrestrained foray[s] into confidential records in the hope that the unearthing of some unspecified information would enable [the defendant] to impeach the witness.'" Id. at 563 (citing Commonwealth v. Bishop, 416 Mass. 169, 617 N.E.2d 990, 997-98 (1993)). A trial court's ruling that a defendant failed to make a preliminary showing under Barroso is reviewed for abuse of discretion. Howard v. Commonwealth, 595 S.W.3d 462, 469 (Ky. 2020). An abuse of discretion occurs when "the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
U.S. Const. amend. VI.
While Barroso dealt specifically with records subject to the patientpsychotherapist privilege, its holding extends to any confidential records held in the possession of a third-party. Commonwealth, Cabinet for Health & Family Servs. v. Bartlett, 311 S.W.3d 224, 227 (Ky. 2010)
Here, Bergman failed to make an adequate preliminary showing of a reasonable belief that the requested records contained exculpatory evidence. He has merely made vague assertions that records containing material evidence potentially exist. Moreover, the possibility that Jessica previously made an allegation of rape against another man is not relevant to the charges against Bergman in the absence of any showing she recanted the allegation or that it was otherwise demonstrably false. See Dennis v. Commonwealth, 306 S.W.3d 466, 472 (Ky. 2010) (holding evidence of rape victim's prior allegations against a different perpetrator is inadmissible unless the present defendant demonstrates "a distinct and substantial probability that the prior accusation was false."). As in Howard, we conclude Bergman's speculative references to potentially material evidence are insufficient to establish a reasonable belief under the Barroso standard. Howard, 595 S.W.3d at 469. The trial court did not abuse its discretion.
Bergman next argues his right to present a defense was violated by the Commonwealth's improper cross-examination of his expert witness. He concedes this alleged error is unpreserved and requests palpable error review under RCr 10.26, which provides:
Rules of Criminal Procedure.
A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.
A palpable error is "easily perceptible, plain, obvious and readily noticeable." Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006). To demonstrate manifest injustice, a party must show the "probability of a different result or error so fundamental as to threaten a defendant's entitlement to due process of law." Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006) (quoting Burns v. Level, 957 S.W.2d 218, 222 (Ky. 1997)). In other words, a palpable error occurs where "the defect in the proceeding was shocking or jurisprudentially intolerable." Id. at 4.
Bergman called Dr. James Wheeler, an OB-GYN physician from Houston, Texas, as an expert witness to contradict the medical evidence presented by the nurse who performed the sexual assault examination upon Jessica. On crossexamination, the Commonwealth was permitted, over Bergman's objection, to question Dr. Wheeler on his compensation as a paid expert. The Commonwealth proceeded to question Dr. Wheeler regarding his qualifications to opine on the subject of sexual assault. The remainder of the Commonwealth's cross-examination involved questions pertaining to Dr. Wheeler's conduct in private practice. Bergman specifically asserts the following line of inquiry was improper:
Com.: Prior to that , did you have privileges at the Methodist Hospital in Houston?
Dr. Wheeler: I did.
Com.: From 1988-1995, you were under a PIP, is that right?
Dr. Wheeler: No, from 1993 to 1994 or 5. The PIP was instigated just as I was leaving. I'd already largely relocated at that point to Women's Hospital.
Com.: What's a PIP?
Dr. Wheeler: It's termed a practice improvement plan.
Com.: Okay. You resigned from Methodist Hospital in 1995, is that right?
Dr. Wheeler: 1994 or 1995, yes.
Com.: Right around the time you opened up your own practice, is that right?
Dr. Wheeler: Yes.
Com.: Isn't it true, Doctor, that you resigned from Methodist Hospital because it was alleged you violated your PIP, is that right?
Dr. Wheeler: Could you ask that question again, please?
Com.: You resigned because it was alleged by your employers that you violated your PIP, is that right?
Dr. Wheeler: Not exactly. It was alleged I violated my PIP by two of my reviewers who were not my employers but represented to me they had the power to suspend me. I flinched, I resigned, and then they turned me in to the medical board.
Com.: And you sued them for defamation, correct?
Dr. Wheeler: I did, and we settled that in 2007.
Com.: Okay. Not asking you whether it's true or not, but I'm going to ask you if the allegations that they brought were that you had performed cystoscopies without delineated privileges?
Dr. Wheeler: Correct.
Com.: That you had frequent complications?
Dr. Wheeler: Of some sorts, yes.
Com.: Failure to secure timely surgical consults?
Dr. Wheeler: Yes.
Com.: Questionable indications for induction of labor?
Dr. Wheeler: Yes.
Com.: Unusual forceps complications?
Dr. Wheeler: Yes.
Com.: Failure to respond to emergency calls?
Dr. Wheeler: Yes.
Com.: And then when confronted with it, you resigned?
Dr. Wheeler: When confronted with?
Com.: With these allegations.
Dr. Wheeler: No, I've been confronted with them before.
Com.: Testifying as a witness in which you're paid helps supplement your income, doesn't it?
Dr. Wheeler: Yes.
Com.: And it helps keep the lights on at your clinic, doesn't it?
Dr. Wheeler: Yes.
Com.: And if word gets out that you're not helpful, there's a likelihood attorneys will stop hiring you, isn't there?
Dr. Wheeler: I don't know because that's not happened very often.
Com.: Thank you, Doctor, that's all I have.
KRE 611 entitles a party "to cross-examine an expert on any subject that reflects on the expert's credibility." Kemper v. Gordon, 272 S.W.3d 146, 155 (Ky. 2008). However, a witness generally may not be impeached on collateral matters which only tangentially relate to credibility. Morrow v. Stivers, 836 S.W.2d 424, 429 (Ky. App. 1992). While not ruling out the possibility that professional misconduct is an appropriate subject for crossexamination, this Court has viewed the use of such evidence with suspicion especially when the prior misconduct lacks a temporal and factual relation to the matter at hand. Trover v. Estate of Burton, 423 S.W.3d 165, 176 (Ky. 2014). In Trover, we determined the familiar test for prior bad acts under KRE 404(b) applies in this situation and held evidence of an expert witness's prior misconduct is "admissible only if (1) it is relevant for a legitimate purpose; (2) it is probative, i.e., only if there is sufficient evidence that the other crime, wrong, or act actually occurred; and (3) its probative value is not substantially outweighed by any prejudicial effect." Id. at 173 (citing Bell v. Commonwealth, 875 S.W.2d 882, 889-91(Ky. 1994)).
Kentucky Rules of Evidence.
Here, we agree with Bergman that the probative value of Dr. Wheeler's prior misconduct was substantially outweighed by the potential for undue prejudice. Dr. Wheeler's professional misconduct occurred approximately 27 years ago and does not impact his knowledge and ability to opine on the cause and extent of Jessica's injuries in the present matter. While the Commonwealth's line of inquiry was improper, we cannot conclude it amounted to palpable error.
We perceive the evidence of Bergman's guilt to have been overwhelming. Jessica testified in convincing detail regarding the violent attack she endured and its aftermath. Indeed, a sexual assault victim's uncorroborated testimony is sufficient to sustain a conviction. Commonwealth v. Cox, 837 S.W.2d 898, 900 (Ky. 1992). Conversely, a lack of medical evidence does not call the validity of a rape conviction into question where the essential elements of the offense have been otherwise established. Blanton v. Commonwealth, 429 S.W.2d 407, 410 (Ky. 1968). While Bergman challenged the existence and extent of Jessica's physical injuries, any doubt cast on the medical evidence does not negate her compelling testimony pertaining to the essential elements of the charged offenses. Upon consideration of the evidence as a whole, we remain unconvinced the improper cross-examination of Dr. Wheeler changed the outcome of this case. Martin, 207 S.W.3d at 3. Therefore, we discern no manifest injustice.
Accordingly, the judgment of the McCracken Circuit Court is affirmed.
All sitting. All concur.