Opinion
NO. 2017-CA-000048-MR
09-14-2018
CHRISTOPHER SPEROS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Christine Foster Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM PENDLETON CIRCUIT COURT
HONORABLE JAY DELANEY, JUDGE
ACTION NO. 11-CR-00016 OPINION
AFFIRMING
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BEFORE: ACREE, D. LAMBERT AND J. LAMBERT, JUDGES. ACREE, JUDGE: Appellant Christopher Speros appeals from an order of the Pendleton Circuit Court denying his motion for post-conviction relief pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 on grounds that he received ineffective assistance of counsel. We affirm.
On March 6, 2011, Speros was at the home of Tisa Pompillio (Mom) with Mom's daughter, L.P. (the victim) and her grandmother. The three of them were watching a movie while seated on an L-shaped sofa. The victim claims that while they were on the couch, Speros inserted his toe into her vagina. She stated that she was scared and went to the bathroom. Speros followed here there, but left when L.P.'s grandmother came to the door and asked if they were okay.
Later that evening, while Mom was giving the victim a bath, the child started to cry and told Mom what had happened. Mom confronted Speros and he stated that if such a thing had happened, it must have been while he was sleeping on the sofa. Mom had the victim examined at Cincinnati Children's Hospital and injuries were discovered which were consistent with the victim's assertions. Specifically, Nurse Katlynn Rufflal and Dr. Elena Duma, a pediatric emergency medicine physician, initially examined the victim. Dr. Duma identified two small bruises - each around two millimeters in size - mixed with menstrual blood on the victim's vagina. Dr. Duma attempted to photograph the injuries, but the resulting images failed to adequately depict the reported injuries.
The victim returned to the hospital two days later for follow-up care. Dr. Kathi Makoroff, a physician who specializes in child abuse pediatrics, examined the victim. Dr. Makoroff observed no injuries. She noted that the injuries seen by Dr. Duma had fully healed.
On March 9, 2011, the Kentucky State Police arrested Speros for first-degree sexual abuse of a victim less than 12 years of age. A jury found Speros guilty of this crime and sentenced him to five years' imprisonment. We affirmed Speros's conviction on direct appeal. Speros v. Commonwealth, 2011-CA-001989-MR, 2013 WL 4512016, at *1 (Ky. App. Aug. 23, 2013).
Speros then filed an RCr 11.42 motion alleging ineffective assistance of counsel. He argued his trial counsel was ineffective for failing to object to impermissible bolstering by medical experts, failing to investigate and present mitigation evidence during the trial's sentencing phase, and failing to inform Speros of his right to testify at trial. The circuit court held an evidentiary hearing on the last claim, after which it overruled Speros's motion in its entirety by order entered December 5, 2016. As it relates to the improper bolstering claim, the circuit court stated:
The movant first alleges that he was denied effective assistance of counsel when his previous counsel failed to object to impermissible bolstering by medical experts. He specifically sets forth the testimony of Dr. Makoroff, asserting that this testimony amounted to bolstering and improper hearsay evidence. First of all, the Movant sets forth none of the alleged hearsay statements and the court finds the testimony cited by the Movant was proper, and the failure to object did not fall below an objective standard of reasonableness. Furthermore, even if an objection should have been made, the defendant did not suffer any prejudice.(R. 151). Speros appealed. Additional facts will be discussed herein.
STANDARDS GOVERNING OUR REVIEW
Every defendant is entitled to reasonably effective - but not necessarily errorless - counsel. Fegley v. Commonwealth, 337 S.W.3d 657, 659 (Ky. App. 2011). In evaluating a claim of ineffective assistance of counsel, we apply the familiar "deficient-performance plus prejudice" standard first articulated in Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674 (1984).
Under this standard, the movant must first prove that his trial counsel's performance was deficient. Id. at 687, 104 S. Ct. at 2064. To establish deficient performance, the movant must show that counsel's representation "fell below an objective standard of reasonableness" such that "counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment[.]" Commonwealth v. Tamme, 83 S.W.3d 465, 469 (Ky. 2002); Commonwealth v. Elza, 284 S.W.3d 118, 120-21 (Ky. 2009).
Second, the movant must prove that counsel's "deficient performance prejudiced the defense." Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To establish prejudice, the movant must demonstrate "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068.
As a general matter, we recognize "that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S. Ct. at 2066. For that reason, "[j]udicial scrutiny of counsel's performance [is] highly deferential." Id. at 689, 104 S. Ct. at 2065. We must make every effort "to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id.
ANALYSIS
Speros has abandoned all his claims of ineffective assistance of counsel except one: counsel's failure to object to impermissible bolstering by medical experts. But before delving into his specific arguments on appeal, we must examine in closer detail the argument as it is articulated in his RCr 11.42 motion.
He began by identifying Dr. Duma's findings and her failed attempt to photograph the victim's injuries. Speros then argued:
Dr. Makoroff [who treated the victim two days after her initial visit to the ER] testified she observed no injuries and that the purpose of her visit was primarily to make the child victim "feel better" by letting her know her body had healed. Such testimony served no purpose toward medical treatment; instead it was used to repeat L.P.'s injuries and reported statements to the jury a third time, through an expert witness.
When questioned why L.P. returned to the hospital after her initial Emergency Room visit, Dr. Makoroff testified:
We like to bring [them] back. Often times, we know that the findings will no longer be there because findings heal very quickly. But sometimes we feel that it just helps the patient to know that they have healed; that the findings that they were told about in the Emergency Department have in fact healed and that everything looks okay to them. We find that has been helpful for them. Some patients develop further symptoms, develop findings, so we also want to see them just to make sure they are doing okay, that they haven't had any further symptoms and also to make sure they don't have any questions for us. Lots of time when people are in an Emergency Department, the doctor talks to them and they look like they're hearing it, but because of so many things that are going on sometimes they can't process all of that. So, when they come back to us, they often have questions that we can answer for them.
Dr. Makoroff went on to testify that she saw no injuries on L.P. at the time of her examination and stated that the injuries Dr. Duma had seen had fully healed. Dr. Makoroff stated again on cross that she had seen no injuries on L.P. However, she was allowed to take the stand and testify without an objection from defense counsel. Failure to object to irrelevant and highly prejudicial testimony from a medical expert in a child sexual abuse case prejudiced Mr. Speros because the jury was allowed to hear the victim's version[] of events through yet another medical expert who confirmed the origin of the injury for a third time. This testimony was more prejudicial than probative and served only to
impermissibly bolster the Commonwealth's case against Mr. Speros.
The Supreme Court of Kentucky has recognized it is highly prejudicial for a doctor or her professional to repeat the hearsay statement of a child identifying the child's abusers. The Court ruled that such hearsay should be considered inadmissible because it was not medically necessary for the purpose of treatment. Generally in a child sex abuse case, only those statements that relate to the patient's physical injuries and what cause them are pertinent to treatment and diagnosis under KRE 803(4).
In this case, Dr. Makoroff testified that the purpose of her visit with L.P. was merely for emotional support and that no injuries were found. Thus, had trial counsel objected, her testimony should have been considered inadmissible because it was not medically necessary in any sense. This type of testimony by a respected professional gives additional weight to the child victim's testimony and serves to unfairly prejudice the defendant. . . .
This case depended on L.P.'s credibility. Her in-court and out-of-court statements form the bulk of the Commonwealth's case, in light of the lack of DNA linking Movant to the crime. Allowing a third medical expert to testify to L.P.'s version of events and emotional state, without any eye toward medical treatment, improperly bolstered the victim's testimony and resulted in a parade of witnesses vouching for the Commonwealth's theory of the case. The question is whether the jury would have believed the victim based on her testimony alone or whether the bolstering by the doctor's testimony tipped the scale against the defendant to the extent the trial was fundamentally unfair, thus rising to manifest injustice. Trial counsel's failure to object to the cumulative evidence and improper bolstering prejudiced Mr. Speros by allowing the jury to
hear L.P.'s version of events again through an expert witness.(R. 116-19). This is the extent of Speros's argument as to this issue. It is worth noting that the objection is to the allegedly bolstering testimony of Dr. Makoroff, not Dr. Duma, and it claims Speros's trial counsel was ineffective, not his appellate counsel.
Before this Court, Speros impermissibly expands his arguments. He attacks not only Dr. Makoroff's testimony as improper bolstering, but also Dr. Duma's testimony and the Commonwealth Attorney's open and closing statements. Additionally, his argument before this Court, unlike his motion below, claims ineffective assistance by both his trial counsel and his appellate counsel during the first appeal.
These arguments were not presented to the circuit court and therefore were not preserved. We will not consider them.
"[A]n appellant preserves for appellate review only those issues fairly brought to the attention of the trial court." Elery v. Commonwealth, 368 S.W.3d 78, 97 (Ky. 2012) (citation omitted). We review a circuit court's rulings on claims of error. If none is made, there is no claim of error for us to review.
However, reviewing Dr. Duma's testimony reveals it was noncumulative and, therefore, not improper bolstering testimony. It focused on the doctor's care of the victim and her medical opinions derived from that care. See Alford v. Commonwealth, 338 S.W.3d 240, 247 (Ky. 2011) (victim's statements to physician "describing what was done to her physically are admissible" when relevant to medical diagnosis and treatment). Furthermore, much of what Speros now objects to was elicited by his own counsel on cross-examination.
The newly minted claim that his appellate counsel was ineffective fails for the same reason that it was not a claim of error below. Hollon v. Commonwealth, 334 S.W.3d 431, 439 (Ky. 2010) ("IAAC claims may henceforth be pursued by motion in the trial court of conviction under RCr 11.42" (emphasis added)). Speros fatally failed to bring these arguments before the circuit court.
Speros asserted both before the trial court and this Court that his trial counsel was ineffective when he failed to object on grounds that Dr. Makoroff should not have been allowed to testify because her testimony was not related to necessary medical treatment, provided no additional details that made the victim's allegations more or less likely, and was cumulative to expert testimony already presented. He points out that the needless presentation of cumulative evidence is prohibited under KRE 403. We again see no deficient performance by trial counsel.
Kentucky Rules of Evidence.
Dr. Makoroff was one of the victim's treating physicians. She testified it was common for a child to receive follow-up care following an ER visit to ensure his or her injuries had healed properly. Follow-up care is medically necessary treatment. The doctor's testimony was relevant, and the Commonwealth was entitled to present it. See KRE 402 ("All relevant evidence is admissible."); KRE 401 (evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence").
Dr. Makoroff's testimony was also not cumulative. KRE 403 provides that, "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." As explained by our Supreme Court:
We note that "[n]ot all evidence that is duplicative is therefore cumulative, and evidence should not be excluded on this ground merely because it overlaps with other evidence." Multiple witnesses bring multiple viewpoints and "testimony from multiple sources about the same event is likely to differ in ways that are helpful to the factfinder."Doneghy v. Commonwealth, 410 S.W.3d 95, 109 (Ky. 2013) (footnotes omitted).
Dr. Makoroff's treatment was part of the victim's total treatment package related to this event. Dr. Duma described the initial treatment the victim received, and Dr. Makoroff described her follow-up treatment. The fact that the victim's injuries had healed by the time Dr. Makoroff treated her does not render the doctor's testimony irrelevant and cumulative.
Furthermore, while Dr. Makoroff did repeat the victim's general allegations, i.e., that the injury occurred when someone tried to insert a toe in her vagina, Dr. Makoroff did so to illustrate that she, like Dr. Duma, relied on the victim's history in forming her diagnosis. Both physicians emphasized that a patient's medical history and reason for seeking medical care are integral components that shape a medical diagnosis. We are fully convinced that Dr. Makoroff's testimony was not offered simply to bolster the victim's version of events and was not needlessly cumulative. Trial counsel was not deficient for failing to object to her testimony on these grounds.
We pause to emphasize that neither Dr. Makoroff nor Dr. Duma stated that the victim identified Speros as the perpetrator. "It is well settled that the identity of the perpetrator is rarely, if ever, pertinent to medical diagnosis or treatment." Alford, 338 S.W.3d at 247.
Speros next asserts, as he did before the circuit court, that the Commonwealth intentionally waited until all the medical and supportive family witnesses had been presented to the jury before calling the victim to testify. He claims the Commonwealth did so to impermissibly bolster her testimony. Speros fails to recognize that the Commonwealth retains complete control over its case. See Neighbors v. Commonwealth, 488 S.W.3d 36, 41 (Ky. App. 2016) ("The Commonwealth was entitled to present its case as it saw fit."). It is free to call its witnesses in the order of its choosing. We see nothing suspect here. Each medical witness treated the victim in some fashion. Each lay witness was involved in some manner with the underlying event or subsequent investigation. The Commonwealth's decision to call these witnesses prior to calling the victim was a reasonable and perfectly tenable strategic decision.
The Commonwealth called the following witnesses: A Kentucky State Trooper, Nurse Rufflal, Dr. Duma, Dr. Makoroff, the victim's great-grandmother, the victim's grandmother, Mom, the victim herself, and two other officers.
Finally, Speros claims the cumulative effect of the errors he argued above deprived him of a fair trial. Because we have found no error in any of the allegations Speros has raised, we likewise hold there is no cumulative error. See Woodall v. Commonwealth, 63 S.W.3d 104, 134 (Ky. 2001).
We affirm the Pendleton Circuit Court's December 5, 2016 order denying Speros's RCr 11.42 motion alleging ineffective assistance of counsel.
ALL CONCUR. BRIEFS FOR APPELLANT: Christine Foster
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky