Opinion
NO. 2013-CA-002016-MR
01-30-2015
RICHARD S. TURPIN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Dax R. Womack Henderson, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE KAREN L. WILSON, JUDGE
ACTION NO. 12-CR-00164
OPINION
AFFIRMING
BEFORE: MAZE, THOMPSON, AND VANMETER, JUDGES. MAZE, JUDGE: Appellant, Richard Turpin, appeals from his convictions for rape, sodomy, and kidnapping stemming from a 2012 incident. Turpin alleges numerous violations of his due process rights under Kentucky's Constitution. However, we observe no such violation of Turpin's rights, and we affirm.
Background
On September 11, 2012, a Henderson County grand jury indicted Turpin for rape in the first degree, sodomy in the first degree, kidnapping in the first degree, and being a persistent felony offender (PFO) in the second degree. A trial on these charges took place over three days beginning on September 25, 2013, at which time the following information came to light.
Turpin and the victim met in May of 2012 on an online dating website. As their relationship developed, Turpin and the victim emailed regularly and began to see each other routinely in the weeks leading up to July 21, 2012. On that date, according to plans they made in the days before, Turpin and the victim left Turpin's residence and went to dinner at a local restaurant. After dinner, Turpin left the restaurant without the victim. Turpin testified that this was due to a disagreement with the victim about where to go next. Too inebriated to drive herself, the victim called a friend, Larry Brooks, to drive her to Turpin's home and collect her belongings.
After letting herself into Turpin's home, the victim confronted Turpin for stranding her at the restaurant. As the victim prepared to leave, she asked Turpin for certain personal items that she had asked him to carry with him to the restaurant. Turpin refused. The victim attempted to leave; however, Turpin took her car keys from her. A physical altercation ensued in which Turpin restrained the victim, the victim scratched Turpin's face with her fingernails, and, according to the victim, Turpin threatened to kill her if she did so again. Turpin refuted this, stating that he got "stern" with the victim about driving while intoxicated, and that a "scuffle" occurred only because he tried to stop her from driving home.
Citing her fear of Turpin, the victim stopped physically resisting him as he continued restraining her. The victim stated that Turpin then took her to the bedroom and repeatedly forced her to engage in oral, vaginal, and anal intercourse over the course of several hours. She complied with Turpin's demands, stating at one point that she "was too afraid to do anything. ... I just wanted to get it done ... and hope to survive." Throughout the incident, Turpin continued to prevent the victim from leaving the bedroom, or to monitor her movements if she did leave the bedroom. The victim stated that Turpin even accompanied and observed her in the restroom.
After several hours, the victim feigned chest pain and convinced Turpin to let her leave. She drove away from the home and once again called Brooks to meet her at a store. When Brooks arrived, the victim was extremely upset and Brooks called the police. After the victim told officers what occurred at Turpin's home, an officer transported her to the hospital in Henderson where Dr. Neil Troost conducted a physical examination of her.
Dr. Troost's examination revealed abrasions and bruising to the victim's lip, arms, wrist, and shin. The victim's urethra was reddened and swollen, a fact which Dr. Troost testified was attributable to "repeated trauma." Dr. Troost also observed that there was a fresh skin tear to the victim's anus and bruising to her sphincter. He attributed these injuries to forced penetration.
Following the close of proof and deliberations, the jury found Turpin guilty of rape, sodomy, and kidnapping, but not guilty of being a PFO. This appeal follows. Additional facts will be provided as necessary for our analysis of Turpin's various allegations of error.
Analysis
On appeal, Turpin alleges several violations of his right to a fair trial. Specifically, he alleges prejudicial error resulted at trial from his wearing of an ankle monitor stemming from prior DUI convictions. In addition, Turpin contends that the presence of rape victim counselors in the courtroom during and after the victim's testimony further prejudiced his defense. Turpin also alleges that the trial court improperly allowed Dr. Troost to bolster the victim's testimony when it admitted his statement on cross-examination that his findings were consistent with the victim's allegation of sexual assault. Finally, Turpin contends that the cumulative effect of these errors requires reversal of his conviction. We address each of these allegations of error in turn.
I. Turpin's Ankle Monitor
At the time of the incident in July 2012, Turpin, a convicted felon, wore an ankle monitor confining him to his home during certain hours. Turpin testified to these facts at the beginning of his testimony, and he states on appeal that he continued to wear the monitor at the time of trial. Turpin contends that the ankle monitor affected his gait and was otherwise apparent to the jury. He claims that this forced him to address, or "open the door" to, the ankle monitor and his criminal history. However, Turpin raises these concerns for the first time on appeal.
At trial, Turpin never moved the trial court to remove his ankle monitor during his trial. Turpin never objected to its presence on the basis of prejudice or violation of the presumption of innocence, as he now does on appeal. For this reason, we will only review the substantive issue, and grant relief if necessary, if we find that "manifest injustice has resulted from the error." RCr 10.26. Such injustice occurs only when the alleged error "seriously affected the fairness, integrity, or public reputation of the proceeding." Newcomb v. Commonwealth, 410 S.W.3d 63, 79 (Ky. 2013) (citing Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006)) (internal quotations omitted).
Kentucky Rules of Criminal Procedure.
No manifest injustice resulted from Turpin's use of the ankle monitor at trial. The primary defect in Turpin's argument regarding his ankle monitor, other than his failure to preserve it for appeal, is his unsupported assertion that a defendant wearing a small ankle monitor is treated the same under Kentucky law as a defendant wearing leg irons and shackles. That is not the case. Furthermore, our review of the video record at trial and at the various preliminary hearings at which Turpin was presumably wearing his ankle monitor reveals nothing which demonstrates that the ankle monitor was even visible to the jury or that it affected Turpin's gait. Hence, the record does not support Turpin's argument that the visibility of the monitor forced him to "open the door" to his criminal history. We therefore detect no error.
II. The Presence of Rape Victim Counselors in the Courtroom
During the victim's testimony, two rape victim counselors were present in the courtroom. Immediately following her testimony, the victim left the witness's stand, the court adjourned for a recess, and the jury left the courtroom. When the court reconvened, Turpin's attorney informed the court that after the victim's testimony, the rape victim counselors gathered around her to console her. Turpin's attorney requested a mistrial based on this having occurred in the jury's presence. The trial court stated in response that it had observed the event; that it occurred while the jury exited the courtroom; and that it was neither "a hysterical display" nor was it "so overwhelming as to prejudice the jury." The trial court overruled Turpin's motion for a mistrial but offered to admonish the jury. The trial court then did so.
Turpin argues that the presence of rape victim counselors in the courtroom and around the victim after her testimony impaired his ability to receive a fair trial. Though the trial court admonished the jury to disregard the interaction it may have witnessed between the counselors and the victim, Turpin argues that this admonition was inadequate.
We begin with the very general rule that a mistrial is unwarranted absent a manifest or real necessity for such an extreme remedy. See Sherroan v. Commonwealth, 142 S.W.3d 7, 17 (Ky. 2004) (quoting Grundy v. Commonwealth, 25 S.W.3d 76, 82 (Ky. 2000)). Furthermore, both the decision to grant a mistrial and the control over decorum and conduct of those in the courtroom rest squarely within the inherent authority and discretion of the trial court. See Bray v. Commonwealth, 177 S.W.3d 741, 752 (Ky. 2005) (overruled on other grounds by Padgett v. Commonwealth, 312 S.W.3d 336 (Ky. 2010)); Allen v. Commonwealth, 286 S.W.3d 221 (Ky. 2009).
More germane to the facts in this case, Turpin relies heavily upon our Supreme Court's decision in Allen v. Commonwealth for his argument that the conduct of the rape victim counselors in this case was prejudicial and required a mistrial. In Allen, the jury in a murder trial observed a public gallery that contained members of the victim's family wearing shirts imprinted with the victim's picture and the words "in loving memory." Even under these facts, the Supreme Court refused to hold that such conduct was "inherently unfair as always to constitute reversible error." Allen at 229. Instead, the Court deemed it best that trial courts faced with such a display determine whether the display "caused the defendant to suffer any tangible prejudice." Id.
Turpin also cites Sharp v. Commonwealth, 849 S.W.2d 542 (Ky. 1993), in which a courtroom bystander gave approving gestures such as winking and the "thumbs up" sign to a child witness while the child testified. The Supreme Court held that this conduct affected the testimony of a crucial witness and was therefore prejudicial to the defendant, requiring a mistrial. Id. at 547. Turpin contends that the conduct of the rape victim counselors in this case was "far more egregious" than the conduct in Allen and Sharp. We disagree.
The alleged exchange between the victim and the rape victim counselors did not prejudice Turpin and did not compel a mistrial. After Turpin's attorney raised the issue, the trial court stated that it observed the exchange between the counselors and the victim while the jury was exiting the courtroom, that the counselors did not hug the victim, and that what it observed was not a hysterical display, nor was it so overwhelming as to prejudice Turpin in the eyes of the seemingly oblivious jury. A review of the video record reveals no audible or extended display in the courtroom. Nevertheless, after a brief recess, the trial court directed the jury to disregard any interaction it may have observed between the victim and others in the courtroom. The law presumes that the jury heeded this admonition and therefore, that the admonition cured the alleged error. See Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003) (citing to Mills v. Commonwealth, 996 S.W.2d 473, 485 (Ky. 1983)). Given these facts, the trial court's decision to admonish the jury and to overrule Turpin's request for a mistrial fell within its discretion, and no tangible prejudice resulted.
III. Dr. Troost's Testimony Regarding Appellee's Injuries
At trial, Dr. Troost testified to his observations during the physical examination he conducted. On direct examination, he concluded that the victim's injuries were consistent with a sexual assault. On cross-examination, Turpin's attorney inquired, and Dr. Troost responded, as follows:
COUNSEL: Your overall finding is that these injuries are consistent with sexual assault - is that a fair statement?Turpin's attorney objected to Dr. Troost's response as hearsay and as "a finding toward the facts." The trial court overruled this objection and pointed out that Dr. Troost had already testified to this fact on direct examination. On appeal, Turpin contends that Dr. Troost's statement impermissibly bolstered the victim's testimony, effectively vouching for her credibility.
DR. TROOST: Yes, and I'd say the findings are consistent with her allegation of the events of the evening.
It is well-established that one witness's vouching for the credibility of another witness is impermissible. See Dickerson v. Commonwealth, 174 S.W.3d 451, 472 (Ky. 2005); Moss v. Commonwealth, 949 S.W.2d 579, 583 (Ky. 1997) ("[a] witness's opinion about the truth of the testimony of another witness is not permitted"); Bussey v. Commonwealth, 797 S.W.2d 483, 484-85 (Ky. 1990). In arguing that Dr. Troost's testimony ran afoul of this rule, Turpin cites an unpublished case, Clark v. Commonwealth, 2008 WL 4692347, 2006-SC-000379-MR (Ky. 2008), where the Supreme Court reversed a defendant's conviction because the jury heard an investigating officer say that he believed the victim was telling the truth and that the defendant was lying. Turpin argues that these facts stand "on all fours" with those in his trial, and therefore we, like the Supreme Court in Clark, should hold that the admitted testimony constituted impermissible vouching.
However, Turpin's contemporaneous objection to Dr. Troost's statement was not based on vouching. Rather, Turpin's objection was that the statement constituted hearsay as well as "a finding toward the facts," which we interpret as an "ultimate issue" argument. Hence, Turpin raises the issue of vouching for the first time on appeal, and it is unpreserved. As such, we will again review the issue for palpable error, reversing the trial court's decision only if it resulted in "manifest injustice." See RCr 10.26. It did not.
A trial court acts within its discretion in permitting a medical professional to testify that his findings were consistent with the history a sexual assault victim provides prior to examination. See Stringer v. Commonwealth, 956 S.W.2d 883 (Ky. 1997); Meadows v. Commonwealth, 178 S.W.3d 527, 538-39 (Ky. App. 2005); see also Baraka v. Commonwealth, 194 S.W.3d 313, 315-16 (Ky. 1997) (holding that an expert's opinion as to a person's cause of death does not constitute an opinion on guilt or innocence). This evidence is probative, and not prejudicial, because it assists the jury not in determining factual guilt or innocence, but in determining the medical cause of a physical condition. Stringer at 889-90 (citation omitted).
The trial court properly overruled Turpin's objections to Dr. Troost's statement. Dr Troost did not state that he believed the victim more than Turpin; nor did he state his belief that Turpin was the perpetrator. Tracking Turpin's contemporaneous objections, we conclude that Dr. Troost's testimony constituted neither hearsay nor an opinion as to the ultimate question of Turpin's guilt. It merely provided an opinion as to the medical cause of the victim's injuries; and it was admissible.
IV. Cumulative Error
Cumulative error is appropriate "only where the individual errors were themselves substantial, bordering, at least, on the prejudicial. If the errors have not individually raised any real question of prejudice, then cumulative error is not implicated." Elery v. Commonwealth, 368 S.W.3d 78, 100 (Ky. 2012) (internal quotations marks and citations omitted). Having found no prejudice in the trial court's rulings concerning the preceding issues, we decline to further address Turpin's assertion of cumulative error.
Conclusion
For the foregoing reasons, the Henderson Circuit Court's Judgment of Conviction and Sentence is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Dax R. Womack
Henderson, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky