William Mark Bell v. Commonwealth of Kentucky

MODIFIED : MARCH 13, 2008
RENDERED: FEBRUARY 21, 2008
TO BE PUBLISHED

6;VUyrtMt Courf of 'Pt
2005-SC-000963-MR

WILLIAM MARK BELL APPELLANT

ON APPEAL FROM LARUE CIRCUIT COURT
V. HONORABLE THOMAS McDONALD, SPECIAL JUDGE
NO. 01-CR-000059

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

REVERSING

Following a jury trial, the Larue Circuit Court convicted William Mark Bell of five

counts of sexual abuse in the first-degree and one count of sodomy in the first-degree.

He appeals the conviction as a matter of right. Ky. Const. §110(2)(b) . For the reasons

set forth herein, we reverse the judgment.

The allegations against Bell were brought by K.T., his girlfriend's daughter. The

incidents of alleged sexual abuse occurred over a three-year period during which K.T.

lived in a small trailer with her mother, Tammy Despain, and C.T., her sister. Bell also

lived in the trailer with D.B., his daughter by Despain.

According to K.T., Bell began to rape and sodomize her when she was in the

second grade. She testified that as the rest of the family slept, Bell would remove her

from the bunk beds that she shared with her stepsister, and take her into the living

room . K.T. stated that Bell would give her pills to keep her awake. These incidents
 allegedly occurred "most nights" and continued until the summer after her third grade

school year. During a visit with her biological father, Keith Tennyson, K.T. confided the

abuse to her stepmother, Lisa Tennyson . Ms. Tennyson contacted authorities and K.T.

was thereafter removed from Bell's home . Bell took the stand in his own defense and

denied all the charges.

K.T.'s credibility at trial was challenged by her numerous prior allegations of

abuse. K.T.'s teacher and a guidance counselor testified that social services had been

contacted on multiple occasions, following allegations made by K.T. against both Bell

and her biological father. A social worker with the Cabinet for Families and Children

explained that no actions had been taken following these accusations because they

were deemed unsubstantiated and problematic due to K.T.'s changing stories. The

Commonwealth attempted to explain K.T.'s varying allegations by her testimony that

Bell threatened to kill her if she did not accuse her biological father of the abuse . K.T.

also testified that Bell killed her dog to scare her, though credible testimony was

presented that the dog was euthanized for other reasons.

As is frequently the case in ongoing sexual abuse trials, little physical evidence

corroborated K.T.'s allegations . On one occasion, after K.T. made an allegation against

her father, Bell and Despain took K.T. to Hardin Memorial Hospital for a physical

examination . The exam revealed that K.T.'s hymen was intact, and that there was no

evidence of tears or lacerations . However, a later examination by another child abuse

expert, Dr. Betty Spivak, revealed a slight healing tear to the hymen. The

Commonwealth explained the discrepancy by pointing out that Dr. Spivak had

conducted a more thorough examination of K.T. with specialized equipment unavailable

at Hardin Memorial Hospital .
 The jury was instructed on five counts of rape, with five counts of sexual abuse

as lesser-included offenses, and five counts of sodomy . Ultimately, the jury returned a

verdict of guilt on five counts of sexual abuse in the first-degree and one count of

sodomy in the first-degree. Bell was acquitted on the other charges. The jury

recommended a sentence of five years as to each sexual abuse count and twenty-five

years as to the sodomy count, to be run concurrently . The trial court imposed the jury's

recommended sentence . Bell now appeals to this Court as a matter of right .

Bell argues that the trial court coerced the jury's guilty verdict. This issue is

unpreserved and Bell requests palpable error review pursuant to RCr 10 .26 . Palpable

errors which affect the substantial rights of a party may be considered on appellate

review, even when not properly preserved, when it is determined that manifest injustice

has resulted from the error. An error is deemed non-prejudicial when, upon

consideration of the entire case, the reviewing court does not believe that there is a

substantial possibility that the result of the trial would have been any different absent the

error . Cochran v. Commonwealth, 114 S .W.3d 837 (Ky. 2003).

A brief recitation of the record is warranted for full understanding of the issue

presented for review. The jury was instructed and began deliberations at 3 :30 p.m.

About three hours later, the trial judge brought only the jury foreperson into the

courtroom, with all counsel and the defendant present. After first stating that he did not

want to hear any details of what was going on in the jury room, the trial court asked the

foreperson if the jury was deadlocked or having difficulty reaching a verdict . The trial

court then inquired if it would be necessary to order dinner, and the ,foreperson replied

that it would be. An hour and a half later, absent any indication whatsoever that the jury

was deadlocked, the trial court brought the entire jury into the courtroom and delivered
 an Allen charge pursuant to RCr 9 .57 . The jury was then sent back out to deliberate

further .

One hour later, now approaching 9:00 p .m ., the trial court called the foreperson

alone into chambers. Also present in chambers was the Commonwealth's Attorney,

defense counsel, Bell, the court's clerk, and a deputy sheriff. Initially, the trial judge

again stated that he did not want to hear any of the particulars of the deliberations . But

the judge noted that the jury had been deliberating for six hours and asked whether

further deliberations would be fruitful . The foreperson, visibly uncomfortable, replied

that he thought the jury could use "just a little more time." He also explained that it was

an "unusual situation for him," and that he was not used to "talking like this." He

explained that the jury believed it was a "hard decision" involving "a lot of issues," but

that they were making progress . Finally, the foreperson twice apologized for "how long

it is taking us." The trial court replied that no apology was necessary and that

deliberations could continue if necessary. The foreperson again explained that he

believed the deliberations were progressing well and that they would do their best. The

foreperson returned to the deliberation room and a verdict was reached less than twenty

minutes later.

The trial court's behavior and actions during the jury's deliberations were

improper and unduly coercive . By the express terms of RCr 9.57, an Allen charge is

properly delivered when "a jury reports to a court that it is unable to reach a verdict ."

Here, the jury made no such report to the trial court. Furthermore, the circumstances of

the deliberations in no way justified delivery of an Allen charge. Considering the

complexity of the case, the conflicting stories presented by multiple witnesses, and the

fact that the jury was considering over ten possible criminal counts, there was no cause
 for concern that the jury was deadlocked after less than five hours of deliberation . The

evidence against Appellant in this case, while certainly sufficient for a conviction, was

not that overwhelming . It was virtually a "he said, she said" type of case.

More egregious is the fact that the trial court brought the foreperson, alone, into

chambers to inquire about the progress of deliberations . The fact that the foreperson

was brought into a small office with the defendant sitting a few feet away created an

unduly coercive environment . The trial court should never isolate one juror from the rest

of the jurors for questioning on a matter which pertains to them all . Though the trial

judge stated several times during the brief meeting that he did not want to know the

details of the deliberations, the goal of the meeting was clear - to determine how much

longer it would take the jury to reach a verdict. This being the trial court's third contact

with the jury during its deliberations, any reasonable juror, placed in such a situation,

would have received the clear and distinct impression that the trial court was concerned

or surprised that deliberations had continued for as long as they had. A reasonable

juror would have gotten the clear message from the judge that it was "time for a verdict."

The character of the foreperson's responses and his repeated apologies made it equally

apparent that he had received such a message .

When analyzing whether a trial court has coerced a jury verdict, this Court has

explained that the "ultimate test of coercion is whether the instruction actually forces an

agreement on a verdict or whether it merely forces deliberation which results in an

agreement ." Abbott v. Commonwealth, 352 S.W.2d 552, 554 (Ky. 1961) . We analyze

the totality of the circumstances. The time lapse between the alleged coercive

comment and the verdict may be relevant as part of the totality of circumstances,

though not decisive . Commonwealth v. Mitchell, 943 S.W .2d 625, 628 (Ky. 1997).
 "[S]tatements which merely impress upon the jury the propriety and importance of

coming to an agreement do not rise to the level of reversible error." Mitchell , 943

S .W .2d at 628. At the same time, however, it must be remembered that "the words and

acts of a presiding judge have great weight with juries, and for that reason we have

often written that he should at all times be cautious in what he says or does in the

presence of the jury." Burnam v. Commonwealth, 283 Ky. 361, 141 S.W.2d 282, 284

(1940).

Looking at the totality of the circumstances in the present case, we are

compelled to conclude that the trial court's behavior and statements to the jury

amounted to coercion . The trial court's delivery of an Allen charge absent any

indication of a deadlock was unwarranted . Such behavior leaves any reasonable juror

with the impression that the trial court had expected a verdict already. Moreover, by

engaging in the highly improper behavior of bringing the foreperson alone into

chambers, the trial court again sent the distinct message that the verdict was taking too

long. Also, the foreperson stated that they were having trouble due to the complexity of

the charges, but making progress . He gave every indication that further deliberations

would be fruitful . Nonetheless, the jury returned a verdict little more than fifteen minutes

later. This circumstance strongly indicates that the foreperson returned to the jury room

and expressed his belief that the trial court wanted a verdict promptly, and that one was

promptly reached .

The trial court's , overall conduct and repeated interaction with the jury during its

deliberations constituted an improper invasion into the deliberations of the jury. When

the province of the jury has been invaded, the validity of the verdict is completely
 undermined and such error cannot be deemed harmless . Accordingly, the judgment of

the Larue Circuit Court is hereby reversed .

Because the judgment has been reversed for the foregoing reasons, we will

address only those additional assignments of error that are likely to recur upon retrial.

Terry v. Commonwealth , 153 S.W.3d 794, 797 (Ky. 2005).

Bell complains that evidence of his marijuana use was improperly admitted in

violation of KRE 404(b). During the testimony of social worker, Ann Cash, the

Commonwealth inquired if she knew anything about the prescription pills that Appellant

allegedly gave K.T. during the abuse. Ms . Cash responded that she did not know

anything about the prescription pills, but then gave substantial testimony regarding

Appellant's marijuana use around his children. While K.T.'s testimony linked the

prescription pills to the sexual abuse claims, the Commonwealth presented absolutely

no evidence tying Appellant's marijuana use to the charged offenses . For this reason,

Ms . Cash's testimony regarding marijuana use was irrelevant and improperly admitted .

KRE 402; KRE 404(b). On retrial, such testimony should be prohibited .

Next, Bell argues that because the jury instructions failed to identify each specific

incident of abuse, they are unsupported by the evidence, deny him a unanimous verdict,

and violate his right against double jeopardy . The jury was instructed on five counts of

rape in the first degree, five counts of sexual abuse as lesser-included offenses, and

five counts of sodomy in the first degree . All instructions on each offense were

verbatim . That is, each rape instruction was identical, each sexual abuse instruction

was identical, and each sodomy instruction was identical . Bell's complaint centers on

the fact that each set of instructions contains no differentiating factors whatsoever and

does not attempt to identify each particular instance of abuse.
 The problem herein does not involve the sufficiency of the evidence . Cf. Miller v.

Commonwealth , 77 S.W.3d 566 (Ky. 2002). The Commonwealth, during its opening

and closing arguments, identified five distinct instances during which K.T. was allegedly

sodomized and raped. K.T.'s testimony provided sufficient evidence as to each incident

to overcome a motion for a directed verdict.

The wording of the instructions, however, calls into question the unanimity of the

verdict. A criminal defendant, of course, is entitled to a unanimous verdict. Ky. Const .

§7, as interpreted in C annon v. Commonwealth, 291 Ky. 50, 163 S.W .2d 15 (1942); RCr

9 .82(1). When the evidence is sufficient to support multiple counts of the same offense,

the jury instructions must be tailored to the testimony in order to differentiate each count

from the others . While the Commonwealth differentiated the offenses during its closing

arguments, there is nothing in the written instructions to distinguish each count of rape,

sexual abuse and sodomy .

It was error for the trial court in this case to deliver multiple instructions that failed

to distinguish in some fashion each incident of rape, sexual abuse, or sodomy. We note

that a simple parenthetical notation within each instruction identifying the location of the

offense (i.e., in K.T.'s living room), or the general time period of the offense (i.e ., before

K.T. confessed the abuse to Ms. Tennyson), could have easily cured this problem. The

trial court might also have used a heading or label for each instruction to differentiate

the various counts.

Though we have reversed Bell's convictions for sexual abuse, we note that the

error in the instructions with respect to these convictions would have been harmless.

The jury was instructed on five counts of rape, with sexual abuse as a lesser-included

offense . The Commonwealth, in its closing, identified the five distinct incidents.
 Because the jury ultimately found Bell guilty of all five counts of sexual abuse, it can be

rationally and fairly deduced that each juror believed Bell was guilty of the five distinct

incidents identified by the Commonwealth .

The single conviction for sodomy presents a different scenario . The

Commonwealth argues that, because the jury ultimately found Bell guilty of only one

count of sodomy, they must have differentiated each instance and agreed upon one that

had occurred . Satisfaction of Kentucky's unanimity requirement cannot be based on

this type of conjecture . Rather, it must be evident and clear from the instructions and

verdict form that the jury agreed, not only that Bell committed one count of sodomy, but

also exactly which incident they all believed occurred . Otherwise, Bell is not only

denied a unanimous verdict, but is also stripped of any realistic basis for appellate

review of his conviction for sodomy . In other words, without knowing which instance of

sodomy is the basis of his conviction, Bell cannot rationally challenge the sufficiency of

the evidence on appeal . Accordingly, had Bell's sodomy conviction not already been

reversed for the foregoing reasons, the instructional error explained above would have

constituted palpable, reversible error.

Finally, to avoid reversible error on retrial, we address the testimony of the

investigating social worker, Ann Cash, who interviewed K.T. concerning the sexual

abuse allegations . Over objection by defense counsel, Cash was permitted to testify

that K.T. was "spontaneous" and "unrehearsed" in telling her story, as opposed to

alleged victims who sound "rehearsed" or "canned ." Also, over objection, Cash was

permitted to testify that K.T.'s demeanor during the interview, such as anger and

sadness, was "consistent with sexual abuse victims."
 We have consistently held that this type of testimony in cases involving

allegations of sexual abuse is inadmissible on a number of grounds. First, it is well

settled that a witness may not vouch for the credibility of another witness . Stringer v.

Commonwealth , 956 S.W.2d 883, 888 (Ky. 1997); Hellstrom v. Commonwealth , 825

S.W.2d 612, 614 (Ky. 1992) ; Hall v. Commonwealth, 862 S .W .2d 321, 323 (Ky. 1993).

Clearly implicit in Cash's description of K.T. as "spontaneous" and "unrehearsed," as

opposed to alleged victims who sound "rehearsed" or "canned," was her opinion that

because of K.T .'s manner of speaking, she was being truthful. Accordingly, this

testimony was improper vouching and inadmissible . Second, -we have held that

psychologists and social workers are not qualified to express an opinion that a person

has been sexually abused . Hall , 862 S.W.2d at 322; Hellstrom , 825 S .W .2d at 614.

Third, we have consistently held as inadmissible, evidence of a child's behavioral

symptoms or traits as indicative of sexual abuse (sometimes referred to as "Child

Sexual Abuse Accommodation Syndrome") on grounds that this is not a generally

accepted medical concept. Brown v. Commonwealth , 812 S.W .2d 502 (Ky. 1991)

(social worker's testimony that child's behavior "consistent with abuse" was reversible

error), overruled on other grounds by Stringer v. Commonwealth , 956 S .W.2d 883 (Ky.

1997) . See also Hellstrom , 825 S.W.2d at 613-14; Hester v. Commonwealth , 734

S.W.2d 457 (Ky. 1987); Lantrip v. Commonwealth , 713 S .W .2d 816 (Ky.1986) ; Busse

v. Commonwealth; 697 S .W.2d 139 (Ky. 1985). Accordingly, Cash's testimony that

K.T.'s demeanor during the interview, such as anger and sadness, was "consistent with

sexual abuse victims" was inadmissible as well.

The trial court appeared to believe this testimony was admissible as long as Cash did not
explicitly state that, in her opinion, K.T. was truthful . However, Cash's opinion that a person
who sounds "spontaneous" and "unrehearsed" is truthful was clearly implicit in her testimony.
Therefore, this testimony runs afoul of the law.
10
 Another assignment of error also likely to occur upon retrial involves the

testimony of a teacher, Diana Cattrell, that K.T . was a good and "very honest" child .

Appellant concedes the error is unpreserved . Cattrell's statement that K.T. is very

honest constituted improper vouching for K.T.'s credibility. However, as the case is

being sent back for retrial, it is not necessary to consider whether this rose to the level

of palpable error.

Again, based upon the foregoing, the judgment of the Larue Circuit Court is

hereby reversed .

All sitting . All concur.

COUNSEL FOR APPELLANT:

Shelly R. Fears
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601-1133

COUNSEL FOR APPELLEE:

Jack Conway
Attorney General

Clint Evans Watson
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
 ,*UyrrMr Courf of ~Rrufurhv

2005-SC-000963-MR

WILLIAM MARK BELL APPELLANT

ON APPEAL FROM LARUE CIRCUIT COURT
V. HONORABLE THOMAS McDONALD, SPECIAL JUDGE
No. 01-CR-000059

COMMONWEALTH OF KENTUCKY APPELLEE

ORDER OF CORRECTION

Appellant's motion for modification of the Opinion is granted. The Memorandum

Opinion Of The Court rendered February 21, 2008, is modified on its face by

substitution of the attached pages 1 and 11 in lieu of pages 1 and 11 of the original

opinion . Said modification does not affect the holding of the original Memorandum

Opinion of the Court .

ENTERED : March 13, 2008