Sharp v. Commonwealth

SPAIN, Justice,

dissenting.

Respectfully, I dissent. Regrettably, my brothers of the majority have deemed it necessary to reverse the convictions and sentences of a child molester who has raped and sodomized two little girls under eight years of age over whom he held a position of familial authority. Again, reversal turns on the admission of hearsay evidence from a social worker and a psychiatrist, who repeated for the jury the out-of-court statements made to them by the child victims during their interviews, and such reversal is ordered notwithstanding the fact that the children themselves “testified effectively” in court. In such a case, I would hold, as we did in Hellstrom v. Commonwealth, Ky., 825 S.W.2d 612 (1992), with regard to out-of-court drawings and captions supplied by the children, that the admission was harmless and only cumulative.

With regard to the court bystander who was accused of coaching a child witness and of speaking to separated witnesses, I would defer to the finding of the trial judge. He denied a motion for a mistrial after holding a hearing in chambers. The judge not only questioned the bystander, but also questioned potential witnesses who were separated in the witness room. Only one of these witnesses actually testified following the bystander’s intrusion into the witness room, and that witness had not been present in the witness room at the time of the intrusion. The bystander denied assisting the child with her testimony but stated that she was only reassuring the child. The child independently verified that *549the bystander had not told her what to say but had only told her not to be afraid. Under the circumstances, I find no reversible error and would affirm the judgment of the trial court.

WINTERSHEIMER, J., joins this dissent.