James Dee Lanham v. Commonwealth of Kentucky ( 2016 )


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    RENDERED: MAY 5, 2016
    NOT TO BE PUBLISHED
    oi5uprrntr          Courf 7,fintfuritv
    2015-SC-000388-MR
    JAMES DEE LANHAM                                                         APPELLANT
    ON APPEAL FROM JEFFERSON CIRCUIT COURT
    V.              HONORABLE OLU ALFREDO STEVENS, JUDGE
    NO. 12-CR-2979
    COMMONWEALTH OF KENTUCKY                                                  APPELLEE
    MEMORANDUM OPINION OF THE COURT
    AFFIRMING
    Between the dates of January 15, 2012, through September 8, 2012, the
    Appellant, James Dee Lanham committed a series of sexual assaults and other
    sex crimes against three minor girls. The majority of the crimes involved a
    young girl named Amy,' who was less than twelve years old when the crimes
    occurred. The other two victims, Heather and Elizabeth, were less than sixteen
    years old at the time of the crimes. Another minor girl, Katie, testified at trial
    as having witnessed sexual acts between Lanham and Amy. She was
    seventeen at the time she testified.
    After Lanham was arrested and indicted, his home was searched,
    revealing several items of evidence that will be discussed as necessary.
    Pseudonyms are being used to protect the anonymity of all the child
    victims.
    A Jefferson Circuit Court jury convicted Lanham on four counts of rape,
    two counts of sodomy, five counts of promoting sexual performance by a minor,
    four counts of first-degree sexual abuse, and three counts of distribution of
    obscene matter to minors. The jury acquitted Lanham on one count of
    distribution of obscene matter to minor that involved Katie.
    The jury recommended a sentence of 30 years' imprisonment for each
    rape conviction, 30 years for each sodomy conviction, 15 years for each
    promoting sexual performance by a minor conviction, seven years for each
    first-degree sexual abuse conviction, and three years for each distribution
    conviction. The jury further recommended that the sentences involving crimes
    against Amy shall run concurrently with each other, for a total sentence of 30
    years. It also recommended that the sentences involving crimes against
    Heather shall run concurrently with each other for a total sentence of 15 years.
    The sentences involving crimes against Elizabeth were recommended to run
    concurrently with each other for a total sentence of 15 years. The sentences
    against each of the three victims were to run consecutively for a total sentence
    of 60 years' imprisonment. The trial court accepted the jury's
    recommendation. Lanham now appeals his judgment and sentence as a matter
    of right pursuant to § 110(2)(b) of the Kentucky Constitution. Five issues are
    raised and addressed as follows.
    Missing Evidence
    One of the items of evidence discovered by police at Lanham's home was
    a miniature baseball bat that Amy claims was used by Lanham to vaginally
    penetrate her. She testified that the bat was "medium sized" and held her
    hands out slightly wider than her shoulders. The Commonwealth presented a
    picture of the bat to the jury but could not produce the actual bat itself.
    Lanham argues that he was entitled to a missing evidence instruction and that
    the Commonwealth's failure to introduce the bat into evidence violated his right
    to due process. More specifically, he contends that due to the bat's size and
    lack of blood, as well as the absence of any internal injuries to Amy, the bat
    was relevant to Amy's credibility. According to Lanham, "[t]he entire case
    rested on the credibility of the girls, and mainly that of [Amy]."
    Due Process
    "In order to establish a due process violation, the evidence must either be
    intentionally destroyed, or destroyed inadvertently outside normal practices."
    Tamme v. Commonwealth, 
    759 S.W.2d 51
    , 54 (Ky. 1988). "Furthermore, the
    lost evidence must 'possess an exculpatory value that was apparent before it
    was destroyed."' 
    Id. (citing California
    v. Trombetta, 
    467 U.S. 479
    , 489 (1984)).
    The photograph of the bat that was presented to the jury contained a
    measuring device that was situated alongside the bat in order to demonstrate
    scale. However, the units of measure are difficult to discern from that photo.
    During deliberations, the jury posed the question: "how many centimeters are
    in one inch?" Lanham claims that this is a clear indication that the jury was
    confused as to the bat's dimensions. The court responded to the jury: "you
    have all the evidence that you are going to receive in this matter."
    3
    Lanham also cites the trial testimony of Dr. Lisa Fitzer, who testified at
    trial concerning her sexual assault examination of Amy. Dr. Fitzer testified
    that Amy had a "normal exam." In response to questioning by defense counsel,
    however, Dr. Fitzer also testified that she would not necessarily expect to see
    physical signs that the bat was inserted into Amy's vagina. It is also
    noteworthy that Amy's examination occurred almost one month after the
    allegation of sexual abuse. In referencing female child patients generally, Dr.
    Fitzer testified that "time passes, the body heals, and [the patients] usually
    look pretty good on the exam." Forensic evidence was also introduced
    indicating that the bat contained Amy and Lanham's DNA.
    During a hearing on the missing evidence issue, which occurred during
    trial, the Commonwealth introduced the testimony of Abigail Freedman. M
    Freedman is the civilian supervisor of the Louisville Metro Police Department
    ("LMPD") property room. She testified that the bat and two cigar tubes were
    logged into the property room and were not logged out. Ms. Freedman further
    testified that all three of those items, the bat and two cigar tubes, were in the
    property room but could not be located. Like the miniature bat, the evidence
    presented at trial indicated that Lanham used a cigar tube to penetrate Amy
    vaginally. One of his rape convictions involved the bat and another involved
    the cigar tubes.
    Although the failure of the LMPD and the Commonwealth to ascertain
    the location of the bat may have been negligent, Lanham has failed to provide
    any evidence that the bat was "intentionally destroyed, or
    destroyed inadvertently outside normal practices."    
    Tamme, 759 S.W.2d at 54
    (citation omitted). Moreover, Lanham has failed to present convincing evidence
    that the bat possessed "exculpatory value that was apparent before it was
    destroyed[,]" or in this case, misplaced. 
    Id. See also
    Swan v. Commonwealth,
    
    384 S.W.3d 77
    , 90 (Ky. 2012) ("Speculation is not exculpation as required by
    Tamme and Trombetta . . ."). As previously stated, the Commonwealth
    presented evidence that the bat contained Amy and Lanham's DNA. Of
    course, this proof is not exculpatory.
    Furthermore, the two cigar tubes were also missing from the physical
    evidence that was presented to the jury. Yet, Lanham did not take issue with
    the absence of those items. Therefore, the jury was presented with additional
    evidence that the bat was used in the manner in which Amy testified, and that
    items other than the bat were also used in a similar manner. Both of these
    facts would have bolstered Amy's credibility regarding her testimony that
    Lanham used the bat to penetrate her in a sexual manner. There was no due
    process violation here.
    Missing Evidence Instruction
    Similar to our preceding due process analysis, any negligence or
    inadvertence on the part of the Commonwealth or the LMPD negates a finding
    of bad faith. Ordway v. Commonwealth, 
    391 S.W.3d 762
    , 793 (Ky. 2013)
    ("[w]hen it is established that the evidence was lost due to mere negligence or
    inadvertence, which, in effect, negates a finding of bad faith, the missing
    instruction should not be given.") (citations omitted). Lanham has failed to
    5
    present evidence that the alleged omissions of the Commonwealth and/or the
    LMPD in failing to present the bat at trial were intentional or done in bad faith.
    Nor does his unsupported claim of "extreme negligence" satisfy this standard.
    Therefore, a missing evidence instruction was not warranted.
    ,   Fifth Amendment Claim
    For his next assignment of error, Lanham raises two alleged violations of
    his right not to testify against himself that is preserved by the Fifth
    Amendment of the federal constitution„ as well as Kentucky law. KRS 421.225.
    First, he claims that, during voir dire, the prosecutor impermissibly referenced
    the possibility that Lanham may choose not to testify during trial. He also
    asserts that the jury instructions impermissibly commented on his right not to
    testify against himself by drawing undue attention to that issue.
    Voir Dire
    During voir dire, the prosecutor informed the venire panel that "if the
    defendant decides not to testify you can't consider it." She then asked the
    panel if everyone understood and agreed that "it's ok if he doesn't testify."
    Lanham's trial counsel moved to discharge the panel, which the court denied.
    Lanham does not develop his argument here beyond a facial claim that the
    prosecutor's statements constituted error.    However, there was no error here.
    It is permissible and, in fact, common for defense counsel to ask these types of
    question during voir dire. And if defense counsel is permitted to ask these
    questions, then so can the Commonwealth.
    6
    Jury Instruction
    Lanham requested at trial that the court not instruct the jury on his Fifth
    Amendment right against self-incrimination, and that failure to testify cannot
    be construed as a presumption of guilt. In support, he cites RCr 9.54(3), which
    provides:
    The instructions shall not make any reference to a defendant's
    failure to testify unless so requested by the defendant, in which
    event the court shall give an instruction to the effect that a
    defendant is not compelled to testify and that the jury shall not
    draw any inference of guilt from the defendant's election not to
    testify and shall not allow it to prejudice the defendant in any way.
    It appears that Lanham's request not to include the instruction was based on
    the prosecutor's previous statement concerning Lanham's decision not to
    testify, which, at the time was merely hypothetical. Lanham asserts that his
    reasoning for requesting that the court omit this instruction was a strategic
    decision not to draw attention to the prosecutor's statement. The trial court
    denied Lanham's request and the jury was presented with the contested
    instruction.
    As Lanham correctly observes, this Court has previously acknowledged
    that it can be a valid trial strategy not to instruct the jury on the defendant's
    Fifth Amendment right not to testify. Thornton v. Commonwealth, 
    421 S.W.3d 372
    , 377 (Ky. 2013). In that case, the appellant argued that "manifest injustice
    occurred because the trial court failed to sua sponte instruct the jury
    concerning a defendant's right not to testify during the penalty phase of the
    trial." 
    Id. We held
    that appellant was not entitled to palpable error review of
    7
    that issue. 
    Id. Unlike Thornton,
    however, the issue in the present case was
    properly preserved, meaning that the court denied Lanham's explicit request
    that the instruction be omitted. Thus, we must now decide as a matter of first
    impression whether the court's denial of Lanham's request was error, and
    whether such error requires reversal.
    In Sargent v. Shaffer, we held that "a trial court's decision on whether to
    instruct on a specific claim will be reviewed for abuse of discretion; the
    substantive content of the jury instructions will be reviewed de novo." 
    467 S.W.3d 198
    , 204 (Ky. 2015). Here, the issue is whether the trial court erred in
    authorizing a specific instruction. Thus, we will review for an abuse of
    discretion. RCr 9.54(3) is clear: "[t]he instructions shall not make any
    reference to a defendant's failure to testify unless so requested by the
    defendant . . . ." While some ambiguity may exist where a defendant fails, for
    whatever reason, to request the instruction, no such instruction shall be given
    when a defendant unequivocally requests that the instruction be omitted.
    Although the trial court likely had the best interests of Lanham in mind when
    it declined Lanham's request to omit the contested instruction, the court
    nevertheless abused its discretion under our rules of criminal procedure. The
    issue now turns to the impact of this error on the judgment.
    Before we address whether the error here was harmless, we must first
    address Lanham's claim that the trial court violated the Fifth and Fourteenth
    Amendments to the U.S. Constitution. If so, then we must determine whether
    8
    the error was harmless beyond a reasonable doubt.      Chapman v.
    California, 
    386 U.S. 18
    , 23 (1967).
    When faced with an identical issue, the U.S. Supreme Court held that
    "the giving of such an instruction over the defendant's objection does not
    violate the privilege against compulsory self-incrimination guaranteed by the
    Fifth and Fourteenth Amendments." Lakeside v, Oregon, 
    435 U.S. 333
    , 340-41
    (1978). Therefore, there is no violation of the federal constitution here. We will
    proceed to determine whether the trial court's error was harmless. RCr 9.24.
    There was extensive testimonial and forensic evidence presented by the
    Commonwealth in support of its case. This included testimony from the
    victims. Moreover, the only real "error" here was the trial court's insistence
    that the jury be instructed not to prejudice Lanham for not testifying. There is
    no way that the judgment was substantially swayed by this error.     Winstead v.
    Commonwealth, 
    283 S.W.3d 678
    , 688-89 (Ky. 2009). Thus, the trial court's
    instruction to the jury concerning Lanham's Fifth Amendment right not to
    testify was harmless.
    Mistrial
    Lanham also argues that a mistrial was required when the prosecutor
    impermissibly attempted to define "reasonable doubt" during closing
    arguments. Slide shows accompanied the prosecutor's oral argument to the
    jury at closing. One slide was entitled "Reasonable Doubt." Another slide was
    entitled "Proof Beyond a Reasonable Doubt" and contained the following
    question: "Ask yourself: Do you believe he did it?" That slide also provided
    9
    that "Proof does not need to eliminate all possible or imaginary doubt." The
    prosecutor elaborated as follows: "But you do have to ask yourself, do I believe
    that this happened? It does not need to eliminate all possible doubt or
    imaginary doubt. It is not beyond a shadow of a doubt, or 100% sure."
    Defense counsel objected to the prosecutor's comments and moved that
    the panel be discharged. The court denied the motion, sustained the objection
    defining reasonable doubt, and instructed the prosecutor to "move on from this
    slide." We will review his motion to "discharge the panel" as a motion for
    mistrial.
    We must determine whether there was manifest necessity for a mistrial,
    and specifically whether the alleged error here "prejudice[d] [Lanham's] right to
    a fair trial." Grimes v. McAnulty, 
    957 S.W.2d 223
    , 224 (Ky. 1997) (citations
    omitted). It is also critical to note that "a finding of manifest necessity is a
    matter left to the sound discretion of the trial court."   Commonwealth v. Scott,
    
    12 S.W.3d 682
    , 684 (Ky. 2000). The trial court did not abuse its discretion
    here.
    In support of his argument, Lanham cites Rodgers v. Commonwealth,
    
    314 S.W.3d 745
    (Ky. App. 2010). In that case, the Court of Appeals determined
    that the prosecutor's closing argument regarding reasonable doubt was
    inappropriate and required reversal, where the prosecutor told the jury that
    "[I]f you know he did it, then this case was proven." 
    Id. at 748.
    However, the
    court also noted in Rodgers that "[o]ver time, our courts have narrowly refined
    the rule to construe as harmless error a statement that reasonable doubt does
    10
    not mean 'beyond all doubt."' 
    Id. at 748
    (citing Johnson v. Commonwealth, 
    184 S.W.3d 544
    , 550-51 (Ky. 2005)). Unlike the present case, however, the Court
    of Appeals reversed in Rodgers because, "the Commonwealth bodaciously
    exceeded the Johnson limit that reasonable doubt does not mean beyond all
    doubt[.]" 
    Id. The prosecutor's
    statements here were far from "bodacious." In
    fact, the comments at issue in the present case comport with the Johnson
    limitation. See also, Brooks v. Commonwealth, 
    217 S.W.3d 219
    , 225 (Ky.
    2007); Rogers v. Commonwealth, 
    315 S.W.3d 303
    , 308 (Ky. 2010).
    Improper Testimony and Closing Argument
    Lanham argues that the trial court erred by allowing impermissible
    testimony concerning child sexual abuse syndrome. This issue is unpreserved.
    Therefore, we will review for palpable error. RCr 10.26; McCleery v.
    Commonwealth, 
    410 S.W.3d 597
    , 606 (Ky. 2013) (we will not reverse unless "it
    can be determined that manifest injustice, i.e., a repugnant and intolerable
    outcome, resulted from that error.").
    During direct examination, the Commonwealth questioned LMPD
    Detective Jennifer Boyer as follows: "In your experience as a crimes against
    children detective, is it more common to have delayed disclosure cases or fresh
    cases?" As previously stated, she responded that it is more common to have
    delayed cases. The prosecutor also referenced Det. Boyer's testimony during
    the Commonwealth's closing argument. The prosecutor stated as follows:
    We heard from the detective, Detective Boyer, who has been a
    crimes against children unit detective for three years, that a
    delayed disclosure case is the norm in her unit. That's because
    11
    these children are normal. They believe they would get in trouble.
    They felt shame because of what they had done. And frankly that's
    why people prey on children.
    Lanham correctly notes that we have previously held that using testimony
    regarding the symptoms of child sexual abuse syndrome, even without
    referring directly to the syndrome, is an impermissible way , to bolster the
    prosecution's case. Blount v. Commonwealth, 
    392 S.W.3d 393
    , 396 (Ky. 2013).
    However, Lanham cites no authority from this Court that has held such errors
    to be palpable.
    We recently addressed a similar issue in King v. Commonwealth, 
    472 S.W.3d 523
    , 527 (Ky. 2015). That case involved the trial court's admission of a
    police detective's testimony wherein he stated that the victim's delay in
    reporting the sexual abuse was not unusual because, in her experience with
    more than 1,500 cases, it was "very rare" for children to immediately report
    sexual abuse. 
    Id. at 527.
    We held that, while obviously erroneous, the
    detective's testimony did not result in manifest injustice. Id at 528.
    Having reviewed the relevant portions of Detective Boyer's testimony, we
    find no palpable error here. And while the contested statements made during
    the Commonwealth's closing argument may have been error, we cannot
    conclude that such error did not create the "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). There was
    extensive testimonial and forensic evidence presented by the Commonwealth in
    12
    support of its case. This included testimony from the victims. There was no
    palpable error here.
    Cumulative Error
    Lastly, Lanham argues that his conviction should be reversed on the
    basis of cumulative error. Under this limited doctrine, we will reverse only
    when the "individual errors were themselves substantial, bordering, at least, on
    the prejudicial." Brown v. Commonwealth, 
    313 S.W.3d 577
    , 631 (Ky. 2010).
    Here, there is "insufficient harmless error to create a cumulative effect which
    would mandate reversal for a new trial." Tamme v. Commonwealth, 
    973 S.W.2d 13
    , 40 (Ky. 1998).
    Conclusion
    For the foregoing reasons, we hereby affirm the judgment of the Jefferson
    Circuit Court.
    All sitting. Minton, C.J.; Cunningham, Keller, and Wright, JJ., concur.
    Hughes, Noble, and Venters, JJ., concur in result only.
    COUNSEL FOR APPELLANT:
    David Lambertus
    Tricia Frances Lister
    COUNSEL FOR APPELLEE:
    Andy Beshear
    Attorney General of Kentucky
    Thomas Allen Van De Rostyne
    Assistant Attorney General
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