Sheets v. Commonwealth

NOBLE, J.,

CONCURRING IN PART, DISSENTING IN PART:

I agree that Sheets is not entitled to directed verdicts of acquittal. But I must otherwise dissent because the Common: wealth’s questioning of Rhonda Sheets about her sexual activities with her husband, coupled with misleading questioning and closing argument about her cooperation with defense counsel’s pre-trial investigation and subsequent loss of custody of her children, led to the admission of irrelevant testimony and was highly prejudicial. I disagree with the majority about the admissibility of much of the testimony elicited by that questioning, and I would find that the admission of the improper evidence amounted to palpable error requiring reversal and remand for retrial.

In my view, the greatest problem with the majority opinion involves the questioning related to Rhonda’s use and cleaning of her various sex toys, particularly including the speculum. The majority concludes that this was not error because Rhonda’s testimony in response was relevant since Michelle had possibly been infected with gonorrhea. In support, the majority cites Dr. Bennett’s testimony speculating that if the sex toys had been used by others (who, presumably, were infected themselves), then the toys could have gotten infectious material on them and thus increased the risk of Michelle becoming infected. This fails to explain how Rhonda’s use and cleaning of the sex toys had any tendency to prove or disprove whether Michelle had been infected with gonorrhea, which is the purported issue the majority finds established its relevancy. The fact is that her testimony says nothing about this issue. (Nor does the majority even attempt to *674explain how the frequency of Rhonda’s use of her sex toys, pornography, .and lubricants made any relevant fact in contention any more or less likely.7 Simply put, it does not.)

On top of this lack of probativeness,, the majority’s summary conclusion provides no reasoning how Michelle’s infection with gonorrhea is actually relevant to proving the charges against Sheets. There was no evidence that either Rhonda or Sheets (or anyone else for that matter) had been infected with gonorrhea. At best, then, evidence of Michelle’s infection prove d that she may have somehow become infected. It says nothing about how or by whom. So to the extent that Rhonda’s testimony about her use of the sex toys and her washing of them had any relevancy at all, it was on a collateral issue that served no legitimate purpose in furthering the Commonwealth’s cause against Sheets. The lack of probative valué for proving, at best, a questionably relevant purpose was easily outweighed by the undue prejudice flowing from this improper line of questioning in casting Rhonda — and, by extension, Sheets — in an un-fiatteringly prurient light.

Similarly, the majority’s conclusions as to the evidence of the speculum taken from Rhonda’s gynecologist’s office for use as a sex toy are also summary in nature and unconvincing. Despite acknowledging that the Commonwealth conceded the irrelevance of this evidence, the majority dismisses that concession on the ground that the contents of the sex-objects drawer, and when they were acquired, were relevant. This relevance supposedly arises because of Sheets’s defense that Michelle had made false allegations against him based on her knowledge of certain of her mother’s sex toys that she likely acquired by snooping around in the couple’s bedroom. But Rhonda was not questioned about each and every item found in that drawer or when any of these items were obtained. In fact, there was no testimony as to when even the speculum itself was obtained. How can this testimony about the speculum be relevant to proving when the numerous items found in the drawer were acquired if it did not even establish when the speculum was acquired? Similarly, Michelle too was not questioned about her knowledge of each and every item found jin the drawer, but only those items she alleged Sheets used on her.

The reasoning underlying the majority’s conclusion, then, would appear to be: because Michelle did not allege that Sheets used each and every item found in the couple’s drawer on her, then his defense— that she obtained, by snooping .around on her own, knowledge-of those items which she did allege were used on her — must be false. This non sequitur highlights the flaws in the majority’s analysis.

And while I disagree with most of the majority’s individual conclusions as to relevancy, I admit that in other instances the majority’s conclusions, viewed in a vacuum, seem correct on their face. For example, the majority explains how responses from Rhonda disclaiming any knowledge of Sheets’s having ever given her son pornography or condoms (but confirming them having talked about sex and girls) were *675“actually helpful to his defense,” thus obviating any reason to object to them and showing that the failure to do so was reasoned trial strategy. I do not have major qualms with the majority here in the abstract, but that is only true when the line of questioning at issue is considered in isolation. ,

However, when this irrelevant questioning about Sheets’s interactions with her son are considered in context with the entire course of questioning about the couple’s sexual proclivities — and with the totality of Rhonda’s examination, which became largely geared toward attacking her credibility to nullify her testimony about disbelieving her daughter’s allegations— the majority’s analysis falls apart. It ignores that the. Commonwealth engaged in an inappropriate line of questioning that, combined with its continuous assault on the witness’s credibility, in effect served to prove the impermissible assertions that its questioning might have, in a technical sense, failed to prove.

The majority’s endeavor to walk through the Commonwealth’s questioning of Rhonda piece by piece, characterizing particular questions and answers as proper or otherwise non-pregudicial, strains the meaning of “relevant” beyond recognition and, in doing so, misses the forest for the trees. As a consequence, the majority allows for the admission of what is at best marginally relevant collateral evidence that in no way serves to prove any fact of actual consequence and that, by its very nature, is unduly prejudicial.

. In determining whether the erroneous questions warrant reversal, it is of course correct that defense counsel’s failure to object to these questions is an important factor in our review. But that factor comes into play only when deciding whether the questions, once found to be error, require reversal: if no objection was raised to the objectionable matter, instead of analyzing whether the error is. harmless, we must decide whether it amounts to palpable error. Whether defense counsel objected plays no role, however, in determining whether the complained-about matter constitutes error in the first instance, as some of the majority’s discussion about trial strategy suggests.

As in its relevance analysis, the majority’s palpable-error analysis is essentially no more than a conelusory holding that there was none. This is largely because the majority does not consider much of the improper questioning to be error at all. But the majority further fails to appreciate the degree of prejudice flowing from the presentation of this evidence, which many, if not most, jurors would likely consider salacious. And the prejudicial nature of this evidence is particularly acute when considered in the full context of the Commonwealth’s examination of Rhonda.

. The majority’s resolution seems to instead turn largely on its view that the Commonwealth’s questions were “not confrontational” and purportedly were “asked for purposes of clarification rather than sensationalism,” along with insisting that trial strategy explains the lack of any objections. Based on my own view of the video, I do not perceive the questions to be for clarification of any salient point. And whether the prosecutor was confrontational in demeanor or not, the questions were asked during a confrontational cross-examination.

More to the point, though, I am left asking: How is the steadied poise of the prosecutor in maintaining a non-confrontational demeanor while examining a witness relevant to deciding whether a line of improper. but unobjected-to questioning warrants reversal? It should be clear it is not. (Indeed, it seems to me that improper questions asked .in a non-confrontational *676manner might actually result in a more insidious error, considering that an overly confrontational prosecutor risks turning off the jury, thereby undercutting the effectiveness of his examination of the witness.)

Similarly, why should the prosecutor’s subjective purposes for asking such questions, be they innocent or ill-intentioned, factor into the analysis? Again, it is clear they should not. An error is an error. With the exception of certain claims of intentional or flagrant misconduct, whether an erroneous line of questioning should be deemed to have resulted in manifest injustice — that is, “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) — has nothing to do with what the questioner was thinking when he chose to ask such questions.

And I take issue with the view that defense counsel’s failure to object was appropriate trial strategy. Even if it was, trial strategy is not a basis to overlook error on appeal, but rather is appropriate on an ineffective-assistance-of-counsel claim — which is not what is before us here.

In any event, as the majority explains it, because objecting too often may cause the jury to form negative impressions of the objector, .counsel often forgo raising valid objections when the perceived harm from the objectionable evidence is something less than “significant.” Thus, the majority’s reasoning continues, since defense counsel did not object to the questioning here, he was presumably of the opinion that it was not particularly harmful, and therefore this Court would be “hijacking” defense counsel’s trial strategy if it were to reach a conclusion to the contrary. Boiled down, this circular logic suggests that there cannot be palpable error precisely because defense counsel did not object. Of course, that cannot be the answer, given that palpable-error review is triggered only when a particular error is not preserved through contemporaneous objection.

In contrast, I believe that this improper line of questioning was, by its nature, very damaging. So damaging, in fact, that notwithstanding the relative brevity of the offensive questioning, it calls into question the fundamental fairness of the entire trial.

I therefore disagree with the majority holding' that this evidence was not irrelevant character evidence that ordinarily would have been barred by KRE 404(b). It undeniably was. It was evidence of “bad”8 conduct introduced for no purpose other than to show Sheets’s and his wife’s sexual proclivities — that is, that they had a propensity for behaving sexually in ways that some might find unusual. It served only the impermissible purpose of showing the couple’s purportedly debaucherous relationship to further demonstrate Sheets’s (and his wife’s) character for sexual deviance. And though the “bad” acts were legal, that character for deviance was further used to show — or could readily have been viewed by an unsympathetic jury as showing — an increased likelihood of Sheets’s having committed the alleged illegal conduct. Thus, it is inadmissible.

The prejudice of this cannot be trivial1 ized given the offenses Sheets was charged with committing and the reality that the proof of his guilt was far from overwhelm*677ing. And the evidence, through similarly compromising Rhonda’s character in the eyes of the jury, also had the incidental effect of prejudicing the jury against her as a witness and her testimony about her belief that her daughter’s allegations were fabricated.

In reviewing for palpable error under Criminal Rule 10.26, “[t]o discover manifest injustice, a reviewing court must plumb the depths of the proceeding, ... to determine whether the defect in the proceeding was shocking or jurisprudentially intolerable.” Martin, 207 S.W.3d at 4. The “focus is on what happened and whether the defect is so manifest, fundamental and unambiguous'that it threatens the integrity of the judicial process.” Id. at 5. In light of the evidence and circumstances of this case, I am convinced that standard is met here.

This case was really no more than a “he-said, she-said” fight, as is lamentably often true in child-sex-abuse prosecutions. There was no physical evidence of abuse (aside from the inconclusive gonorrhea evidence, which essentially proved nothing at all, at least with respect to Sheets). Nor were there any witnesses to any abusive acts or behaviors. Instead, there was only the alleged victim’s testimony and the alleged perpetrator’s denials (and supportive testimony from his wife, the alleged victim’s mother), so the jury’s task thus boiled down to deciding whom to believe.

To that end, the Commonwealth’s strategy at trial was clear: convince the jury to believe and sympathize , with the alleged victim by painting Sheets (as well as his wife) as prone to sexual deviance, with Michelle, thus having been subjected to his “world of sexual perversion,” as the Commonwealth described it in closing argument. The Commonwealth carried this off quite effectively by giving the jury, through Rhonda’s improper testimony, a voyeuristic view into, the normally sacrosanct privacy of the marital bedroom.

Indeed, the speculum evidence is particularly troubling in this respect because it involved sexual activities that would be likely to be viewed as unusual, to say the least. Such evidence served as a powerful reinforcement of the picture of sexual perversion the Commonwealth was painting of Sheets (and Rhonda as well). And its prejudicial effect cannot be deemed ameliorated, as the majority apparently sees it, by its relative brevity because the Commonwealth made sure to draw the jury’s attention back to the speculum in closing arguments as part of its emphasizing a perception of sexual depravity permeating the Sheetses’ household.

The problem, then, lies in giving the jury a glimpse of the goings-on in the Sheetses’ marital bed, goings-on that were completely unrelated to the charged offenses or any fact of consequence at trial. This exposed the jurors to indelible images of Sheets and his wife engaging in uncommon sexual behaviors that some of the more prudish of the panel might even deem abhorrent. Having demonstrated Sheets’s predisposition to achieving sexual gratification through uncommon means, the Commonwealth improperly invited the jury — offended and.inflamed by mental images of Sheets’s and his wife’s sex acts — to convict him based on its perception of that predisposition and not on the actual evidence presented of his guilt or innocence of the charged crimes.

Furthermore; the prejudice of introducing this inflammatory evidence was compounded by the Commonwealth’s largely improper impeachment of Rhonda Sheets on the collateral matters of losing custody of her children and her cooperation with defense counsel’s pre-trial investigation of Michelle’s allegations. This point is yet *678another on which I disagree with the majority..

As I viewed the examination of Rhonda, I was struck by the aggressive impeachment (purporting, to demonstrate bias for her husband and against her daughter) of the witness on redirect on entirely collateral issues.

Yet the majority dispenses with this allegation of error, in part, by signing off on the trial court’s conclusion that .defense counsel “opened the door” to such questioning regarding Rhonda’s losing custody of her children. That seems to have been premised, however, on a fundamental misconception of the “opening the door” concept, which is more aptly termed the doctrine of “curative admissibility.” E.g., Norris v. Commonwealth, 89 S.W.3d 411, 414 (Ky.2002). This doctrine is triggered when one party introduces inadmissible evidence that prejudices the other party in some way — this “‘opens the door’ for the other party to introduce equally inadmissible evidence in rebuttal.” Purcell v. Commonwealth, 149 S.W.3d 382, 399 (Ky.2004), overruled on other grounds by Commonwealth v. Prater, 324 S.W.3d 393, 400-01 (Ky.2010).9 And it should be emphasized that “[t]he open door doctrine is supposed to prevent prej-udiee (not to introduce or exacerbate it).” Id. (quoting Robert G. Lawson, The Kentucky Evidence Law Handbook, § 1.10[5], at 46 (4th ed. 2003)).

So the concept should apply here only if Rhonda’s responses to defense questioning contained inadmissible, prejudicial evidence — only then would it be subject to rebuttal by equally inadmissible evidence to mitigate the prejudicial taint of the improperly introduced evidence. See Norris, 89 S.W.3d at 415 (“Concerning curative evidence, ... ‘the opponent may reply with similar [inadmissible] evidence whenever it is needed for removing an unfair prejudice which might otherwise have ensued from the original evidence.’ ” (quoting Dewey v. Funk, 211 Kan. 54, 505 P.2d 722, 724 (1973) (bracketed language in original))). Failing to appreciate this, however, the majority never attempts to explain how the fairly offhand mention10 by Rhonda of losing custody of her children was inadmissible, let alone prejudicial, to warrant the extensive redirect examination by the Commonwealth. Nor could the majority possibly supply such an explanation because the original testimony was not inadmissible (in the sense that improper hearsay or character evidence is inadmissi*679ble) or prejudicial to Commonwealth’s case.11

As Professor Lawson has observed, this Court’s past cases suggest our embrace of the view that “all evidence that properly serves to counter the inferences generated by the original evidence should be admissible, but none other.” Robert G. Lawson, The Kentucky Evidence Law Handbook, § 1.10[4], at 45 (5th ed. 2013) (quoting 1 Wigmore, Evidence in Trials at Common Law, § 15 (Tiller’s rev. 1983)). What inferences were generated by the original testimony here? How did the Commonwealth’s follow-up questioning (and argument) serve to counter .those inferences? When this issue is thus properly framed, it is clear that Rhonda’s .brief testimony “did not open the door to the storm of evidence that followed.” Sanborn v. Commonwealth, 754 S.W.2d 534, 548 (Ky.1988). That storm — the improper questioning and subsequent closing arguments — was both highly prejudicial and misleading.

To be sure, this questioning and argument is most concerning when it is viewed in tandem with the improper sex evidence, especially considering the he-said-she-said nature of the proof in this case. In short, the prosecutor was allowed to attack Rhonda’s maternal judgment through questioning that misleadingly implied (or, perhaps more accurately, led the witness to answer misleadingly, if not counterfac-tually) that the family court had removed the children from her custody because she had allowed them to speak with Sheets’s counsel.12 (E.g., Commonwealth: “[You took your children to meet defense counsel i]n preparation for trial, is- that correct?” Rhonda: “This was a while ago, yes.” Commonwealth: “And, at that point, your children were taken away?” Rhonda: “Yes.”) It is not proper impeachment to question a witness in such a way as to mislead jurors, particularly when on a collateral and irrelevant, yet prejudicial, matter. The record makes clear that this is exactly what happened.

Turning back to why this questioning (and accompanying closing arguments related to it) was problematic: this attack made the taint of the improper sex evidence much more pronounced. It allowed the Commonwealth to be that much more successful in painting the Sheetses’ residence as a “world of sexual perversion,” where Michelle’s well-being was allegedly overlooked and ignored or, if the Commonwealth’s theory was correct, intentionally damaged by Sheets.- •

In sum, it is clear to me that the Commonwealth’s introduction of the irrelevant sex evidence here served no proper purpose and instead only inflamed the passions of the jury. Coupled with the improper impeachment, of Rhonda on the collateral issues of her children’s custody and defense counsel’s investigation of Michelle’s allegations, it casts doubt on the fundamental fairness of Sheets’s trial as a whole. So I must conclude that the intro*680duction of the inadmissible evidence was palpable error that threatened Sheets’s entitlement to due process of law and resulted in manifest injustice warranting reversal.

Therefore, I would reverse all of Sheets’s convictions and remand for a new trial.

, After conceding that the proof of the speculum and the questions involving Rhonda’s son were irrelevant and should not have been admitted, the Commonwealth asserts in its brief that the evidence of the frequency of ' Rhonda's use of the sex toys was relevant •"because not only did [Michelle] testify that Sheets used one of these toys, ‘a silver vibrator[;]’ on her vagina, there was also the issue of whether [Michelle] had seen these sex . toys on her own or had been shown them by Sheets.” Like the majority opinion, however, the Commonwealth does not (and cannot) explain what exactly the frequency of Rhonda’s use of the sex toys says about those disputed issues, The answer to that question: nothing.

. I use this term loosely. KRE 404(b) is not limited to unlawful conduct. The uncharged sexual conduct here is considered bad because of its tendency to cast the actors in an unflattering, even contemptible, light in the eyes of at least some members of the jury. Thus, it is other-bad-acts character evidence that is inadmissible absent it being offered for some other permissible purpose under KRE 404(b)(1), which it was not.

. In Prater, this Court clarified that trial courts have discretion whether to'allow impeachment by extrinsic evidence on purely collateral issues when a party raises them on direct examination,' overruling Purcell and other cases to the extent they suggested that trial courts lacked such discretion, 324 S.W,3d at 400-01. We explained that "the trial court is in, the best position to decide whether the facts and circumstances of that case present a scenario in which the evil of allowing a party to offer voluntarily what may be knowingly false testimony with impunity outweighs the evil of having to devote trial time to impeachment on collateral matters." Id. at 401. Of course, that scenario is not implicated here where it was never alleged that Rhonda’s testimony regarding the.custody of her children was untrue and, the Com- . monwealth’s questioning on redirect examination was not "impeachment” in the sense that it attacked the truthfulness of such testimony.

. And that is all it was. The exchange, which purportedly "opened the door” to the Commonwealth’s questioning on redirect examination, went as follows: • :

Defense Counsel: Are you fighting for custody ,• of your children?

Rhonda: Yes.

Defense Counsel: They are in the custody of your parents right now, correct?

Rhonda: Yes.

. Indeed, the majority’s alternate conclusion that this questioning was proper impeachment (purportedly to show bias) is in direct conflict with its invocation of the open-door doptrine, which again involves curative admissibility of otherwise inadmissible evidence. If the redirect examination questioning here really was a proper means for showing bias (which I dispute), then whether the defense "opened the door” on that topic is irrelevant.

. It appears, instead, that the Kenton Family' Court removed the children from Rhonda's custody because she violated that court’s order that she have no contact with Sheets. In his brief, Sheets’s counsel also complains about an order of the family court barring Rhonda from further contact with defense counsel issued after the family court learned of her cooperation with the defense investigation. Whether or not the family court acted appropriately is not before this Court.