While Judge Crone's thoughtful dissent claims that the length of an IAD continuance is not subject to the good-cause and open-court requirements of the IAD, at least one court has considered this issue and concluded otherwise. See Roberson v. Kentucky, 913 S.W.2d 310, 314 (Ky. 1994) ("the trial court did not address whether there was good cause for the length of the continuance") (emphasis added). In addition, from a common sense perspective, if the IAD required "nothing more" than good cause for the setting of an indefinite continuance in open court, the State would have been free to set Conn's trial at its leisure after the indefinite continuance.
In this case, the petitioner is arguing that the charges against him should be dismissed with prejudice prior to trial because his transfer violated Section IV(5) of the IAD. Kentucky case law indicates that the proper manner for a defendant to assert his rights under the IAD is a motion to dismiss made before the trial court, which, if denied, can be appealed in the state courts. See Roberson v. Commonwealth, 913 S.W.2d 310, 315 (Ky. 1994). Here, it does not appear as if either the petitioner or his counsel have raised the IAD issue before the trial court, and they certainly have not pursued appellate relief as related to that issue as the petitioner has not yet been tried or convicted on the charges.
In Ward v. Commonwealth, 62 S.W.3d at 404, Kentucky’s intermediate appellate court decided that New York v. Hill had invalidated an earlier decision in which the Kentucky Supreme Court held that, "[a]s long as [the prisoner] did not affirmatively request the court to follow a procedure inconsistent with the IAD, it was not necessary that he demand the court comply with the IAD, since … the burden of complying with the IAD is on the Commonwealth." Roberson v. Commonwealth, 913 S.W.2d 310, 315 (Ky. 1994). In reaching its decision, the Kentucky court correctly recognized that in New York v. Hill "the United States Supreme Court held that a defendant implicitly waives the IAD’s time limits where he or his counsel agrees to a trial date outside those limits."
The relation to the continuing attack also renders this testimony probative because it provided context to the circumstances surrounding the attack. "The fact that the victim and the date of the crimes were the same, the crimes were related in nature, and the crimes were part of a continuing course of conduct, raises reasonable inferences bearing on motive, opportunity, intent and common plan or scheme." Roberson v. Commonwealth, 913 S.W.2d 310, 316 (Ky. 1994), overruled on other grounds, abrogation recognized by Parks v. Commonwealth, 89 S.W.3d 395 (Ky. 2002). Because the sexual assault was part of an uninterrupted series of violent and aggressive acts toward D.B., the trial court properly admitted the testimony. Additionally, the references to the sexual assault kit were fleeting, brief, and merely provided during testimony about evidence collection.
This court is not a fact-finding body and, thus, it would be inappropriate for us to engage in fact-finding now. See Ryan's Express Transp. Servs. v. Amador Stage Lines, Inc., 128 Nev. 289, 299, 279 P.3d 166, 172 (2012) ("An appellate court is not particularly well-suited to make factual determinations in the first instance."); Roberson v. Commonwealth, 913 S.W.2d 310, 314-15 (Ky. 1994) (remanding where the trial court failed to address whether the length of the continuance was for good cause and was necessary or reasonable), abrogation recognized by Parks v. Commonwealth, 89 S.W.3d 395 (Ky. 2002). Therefore, we remand to the district court to determine whether Price's IAD right to a speedy trial was violated.
See Romans v. Commonwealth, 547 S.W.2d 128, 131 (Ky. 1977). See, e.g., Noel v. Commonwealth, 76 S.W.3d 923, 931 (Ky. 2002); Price v. Commonwealth, 31 S.W.3d 885, 888 (Ky. 2000); Roberson v. Commonwealth, 913 S.W.2d 310, 316 (Ky. 1994) ("The fact that the victim and the date of the crimes were the same, the crimes were related in nature, and the crimes were part of a continuing course of conduct, raises reasonable inferences bearing on motive, opportunity, intent and common plan or scheme."); Keeton v. Commonwealth, 459 S.W.2d 612, 613 (Ky. 1970) KRE 404(b)(1).
(Emphasis added). Thus, "[i]f the prosecuting authority initiates proceedings, the prisoner must be tried within 120 days after his arrival in the jurisdiction seeking to try him[,]" Roberson v. Commonwealth, Ky., 913 S.W.2d 310, 312 (1994), and if the time limitations are violated, "the trial court is compelled to dismiss the charges with prejudice." Id. at 313; Lovitt v. Commonwealth, Ky., 592 S.W.2d 133 (1979).
The claims by Parks concerning his and his trial counsel's knowledge about the IAD at the time the trial date was set are purely speculative and wholly without merit. Furthermore, his reliance on Roberson v. Commonwealth, Ky., 913 S.W.2d 310 (1994) is in error because that case is no longer the controlling authority on the issue of waiver. See Ward v. Commonwealth, Ky.App., 62 S.W.3d 399 (2002) which correctly recognized thatHill has superseded and pre-empted Roberson, supra.
KRS 506.010(4). KRE 404(b)(1); Roberson v. Commonwealth, Ky., 913 S.W.2d 310, 315-16 (1994); Messmear v. Commonwealth, Ky., 472 S.W.2d 682, 684 (1971) ("evidence of other sex activities of the same nature committed with and upon the same person is competent"); Keeton v. Commonwealth, Ky., 459 S.W.2d 612 (1970); see generally R. Lawson, The Kentucky Evidence Law Handbook § 2.25, at 105-06 (3d ed. Michie 1993) for a discussion of the admissibility of evidence of other sexual crimes if perpetrated against the same victim as opposed to a different victim. L.B. was born on November 30, 1984.
The trial court should be given the opportunity to consider whether an admonition would cure the error. See Roberson v. Commonwealth, Ky., 913 S.W.2d 310, 317 (1994). Regardless, the prosecutor's statements did not address themselves directly to Appellant's silence.