Alexander v. Commonwealth

SPAIN, Justice,

concurring in part and dissenting in part.

I concur in so much of the Majority Opinion as affirms the trial court’s rulings on the first three issues raised by the appellant, but respectfully dissent from the reversal on the remaining three issues.

I believe that the trial court correctly allowed the admission of testimony by Ms. Nancy Horrar, the investigative social worker, regarding the contents of a report made by her of her previous interview with the victim. It should be noted that this was allowed as rehabilitation after the victim had fully testified and after the defense had cross-examined her and inferred that her trial testimony had been influenced by the prosecutor; i.e., that it was a recent fabrication because of the prosecutor’s influence. Under these circumstances, the fact that the report contained information from the victim consistent with her trial testimony and recorded by the social worker as a business entry before there was any opportunity for prosecutorial influence, rendered the rebuttal evidence clearly admissible. See R. Lawson, Kentucky Evidence Law Handbook § 4.10(c)(2) quoting from Eubank v. Commonwealth, 210 Ky. 150, 158, 275 S.W. 630, 633 (1925) as follows:

As a general rule, a witness cannot be corroborated by proof that on previous occasions he has made the same statements as those made in his testimony. Where, however, a witness has been assailed on the ground that his story is a recent fabrication, or that he has some motive for testifying falsely, proof that he gave a similar account of the matter when the motive did not exist, before the effect of such an account could be foreseen, or when motive or interest would have induced a different statement, is admissible.

*866Also see Reed v. Commonwealth, Ky., 738 S.W.2d 818 (1987).

It is also my opinion that the trial court correctly admitted testimony by Dr. Melissa Pope regarding her physical examination of the victim at the emergency room and the history elicited from the little girl. The doctor testified that she observed a tear in the victim’s hymenal ring of recent origin and that such an injury was consistent with the medical history related by the child of vaginal intercourse with an adult. A physician certainly possesses sufficient expertise by reason of training and experience to state an opinion regarding this medical matter. We have so held in Hellstrom v. Commonwealth, Ky., 825 S.W.2d 612, 617 (1992), and in Pevlor v. Commonwealth, Ky., 638 S.W.2d 272 (1982). The trial court further properly distinguished the instant ease from Brown v. Commonwealth, Ky., 812 S.W.2d 502 (1991), now relied on by the Majority, wherein the physician based her testimony as to the age of a cervical tear solely on the case history.

With further regard to the admission by the trial court of the testimony of the social worker and the physician, it would seem that even if one found such evidence to have been improperly admitted, it is nevertheless clear that any error was harmless as being merely cumulative of the victim’s trial testimony. See Hellstrom v. Commonwealth, supra; Flannery v. Commonwealth, Ky., 443 S.W.2d 638 (1969); and Ringstaff v. Commonwealth, Ky., 275 S.W.2d 946 (1955).

Finally, we turn to the issue of whether the trial court erred in refusing to excuse for cause potential jurors Leason and Woods. The Majority Opinion quotes verbatim the colloquy between the court, counsel, and the venirepersons. It reflects that Ms. Leason did not know personally any of the individuals involved in this case, although she was employed as an investigative social worker with child protection services in Louisville. Although at first she stated that she believed that her work would affect her decision, she stated after questioning that she could be fair and would listen to the evidence and make a decision based upon what she heard from the witness stand in court. She further answered defense counsel that she didn’t think she “carried any baggage” from being a social worker that would affect her judgment in this case, nor would she be more inclined based on her past experience to believe what a child said versus what the defendant said.

The other potential juror whose qualifications are in issue, Mr. Woods, simply expressed his distaste for mixed marriages and inquired if that were the situation with the appellant. He nonetheless stated that such a fact would not cause him to view the appellant’s wife’s testimony differently than that of another witness and that he was certain he could make a fair decision as to guilt or innocence.

We recently stated in Stoker v. Commonwealth, Ky., 828 S.W.2d 619, 625, 625 (1992):

Another judge may have excused this juror for cause based on her answers, but the question is whether in failing to excuse this juror the trial court abused its discretion. The juror’s answers, when reviewed in their entirety, suggest the juror was being conscientious, not showing bias. Ultimately, the juror assured those present that she could listen to the evidence and render a fair and impartial verdict. We have recently recognized that the decision regarding juror “impartiality is not a technical conception ... limited to the juror’s response to a ‘magic question.’” Montgomery, Sherman and Hudson v. Commonwealth, Ky., 819 S.W.2d 713 (1991). But here when reviewed “in the totality of circumstances,” the juror’s responses were not such as to require disqualification. They do not compel the conclusion that the trial court abused its discretion.

Similarly, in the present case, the answers given by Jurors Leason and Woods show that they were being conscientious and not showing bias. When reviewed in the “totality of the circumstances,” the jurors’ responses did not require disqualification. The trial court did not abuse its discretion.

WINTERSHEIMER, J„ joins in this opinion.