Roger Dale Rafferty v. Commonwealth of Kentucky ( 2015 )


Menu:
  •              IMPORTANT NOTICE
    NOT TO BE PUBLISHED OPINION
    THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED!'
    PURSUANT TO THE RULES OF CIVIL PROCEDURE
    PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
    THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
    CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
    CASE IN ANY COURT OF THIS STATE; HOWEVER,
    UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
    RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
    CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
    OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
    BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
    BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
    DECISION IN THE FILED DOCUMENT AND A COPY OF THE
    .
    ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
    DOCUMENT TO THE COURT AND ALL PARTIES TO THE
    ACTION.
    RENDERED: AUGUST 20, 2015
    NOT TO BE PUBLISHED
    S5uprrittr &turf                    71,firrtfurkv
    2014-SC-000408-MR
    ROGER DALE RAFFERTY                                                    APPELLANT
    ON APPEAL FROM DAVIESS CIRCUIT COURT
    V.                HONORABLE JOSEPH W. CASTLEN, III, JUDGE
    NO. 13-CR-00334
    COMMONWEALTH OF KENTUCKY                                               APPELLEE
    MEMORANDUM OPINION OF THE COURT
    AFFIRMING
    On March 18, 2013, Appellant, Roger Dale Rafferty, and his wife, Jane
    Rafferty, babysat their granddaughters, Francine and Madison.' At some point
    during the day, Appellant and Francine, who was three-years-old at the time,
    were left alone. During that time, Appellant placed his mouth on Francine's
    vagina and then proceeded to masturbate in front of her. Approximately two
    weeks passed before Francine mustered up the courage to tell her parents of
    Appellant's actions. The very next day, after Francine's father confronted him,
    Appellant admitted to orally sodomizing Francine and masturbating in her
    presence. Francine's father immediately notified law enforcement. Shortly
    thereafter, Detective Brandon Sims of the Owensboro Police Department
    interviewed Appellant and procured his recorded confession.
    1   Pseudonyms are being used to protect the girls' anonymity.
    On May 8, 2013, a Daviess County Grand Jury indicted Appellant on one
    count of first-degree sodomy and first-degree sexual abuse. Despite Appellant's
    admissions, his attorney entered a not guilty plea on his behalf. The case
    proceeded to trial on Mach 25, 2014. Over Appellant's objection, Francine,
    who was five-years-old at the time of trial, testified via closed circuit television.
    She explained that Appellant touched her "bad part" with his tongue, and then
    "peed" into toilet paper. The jury ultimately found Appellant guilty of each
    charge. The jury recommended a life sentence for the first-degree sodomy
    charge and ten years imprisonment for the first-degree sexual abuse charge,
    both to run concurrently. On July 11, 2014, the trial court sentenced
    Appellant in conformity with the jury's recommendation. Appellant now
    appeals his conviction and sentence as a matter of right pursuant § 110(2)(b) of
    the Kentucky Constitution.
    Appellant's sole argument on appeal is that the trial court abridged his
    federal and state constitutional rights to confrontation and to a fair trial as
    guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United
    States Constitution and Section Eleven of the Kentucky Constitution. Prior to
    trial, the Commonwealth notified Appellant and the trial court that it intended
    on calling Francine to testify during its case-in-chief. However, the
    Commonwealth requested that Francine be allowed to testify by way of a closed
    circuit television pursuant to Kentucky Revised Statute ("KRS") 421.350.
    Appellant objected to the motion and claimed that testimony given outside of
    the courtroom, without him present, would impede his ability to confront
    2
    Francine. Prior to trial, the court conducted a hearing on the matter to
    determine if there was a compelling reason to allow Francine to testify via
    closed circuit television.
    In support of its motion, the Commonwealth called Tara Gann, a licensed
    clinical social worker, who had counseled Francine. Gann testified that in past
    counseling sessions, Francine expressed her fear of Appellant. Francine
    relayed to Gann that if she was to ever see Appellant she would run away.
    Accordingly, Gann informed the trial court that if forced to testify in front of
    Appellant, Francine would not only suffer emotional distress, but she would
    likely be unable to reasonably communicate to the jury. In addition, Francine's
    mother, Haley, testified that her daughter was extremely wary of seeing
    Appellant and expressed concern that he would touch her again. Like Gann,
    Haley believed Francine would be unable to testify in Appellant's presence,
    and, if forced to do so, would suffer emotional distress.
    At the conclusion of the hearing, the trial court agreed with the
    Commonwealth that Francine should not testify in open court. The trial court
    explained that Francine's fear of Appellant would prevent her from adequately
    informing the jury of her experience. Per the Commonwealth's request,
    Francine was allowed to testify in the judge's chambers while Appellant waited
    in the courtroom. To ensure that Appellant maintained continuous audio
    contact with his attorney during Francine's testimony, both Appellant and his
    counsel were provided with walkie-talkies. As the trial judge explained, if
    3
    Appellant had a question, he could make the walkie-talkies "beep," after which
    his counsel could leave the judge's chambers to field his questions.
    KRS 421.350(1)-(2) permits a victim of sexual abuse to testify outside of
    the courtroom, by way of a closed circuit television, if the victim was twelve
    years of age or younger when the abuse occurred and there is a compelling
    need for the victim to testify outside of the defendant's presence. "A trial
    court's finding of compelling need pursuant to KRS 421.350 is reviewed for
    abuse of discretion." Kurtz v. Commonwealth, 
    172 S.W.3d 409
    , 411 (Ky. 2005)
    (citing Danner v. Commonwealth, 
    963 S.W.2d 632
    , 634 (Ky. 1998)). A
    compelling need is defined as "the substantial probability that the child would
    be unable to reasonably communicate because of serious emotional distress
    produced by the defendant's presence." KRS 421.350(5). Some non-exclusive
    factors a court may consider in determining the existence of a compelling need
    include "the age and demeanor of the child witness, the nature of the offense
    and the likely impact of testimony in court or facing the defendant."
    Commonwealth v. Willis, 
    716 S.W.2d 224
    , 230 (Ky. 1986).
    In analyzing the above-referenced factors, we place great weight on the
    fact that Francine was only three-years-old at the time of the offense and only
    five-years-old at the time of trial. Based on Francine's young age and the
    sensitive nature of her testimony, testifying in open court would most certainly
    cause her mental distress. The victim's anguish is amplified in light of her
    reasonable expectation of never seeing her assailant face-to-face again.
    
    Danner, 963 S.W.2d at 635
    (holding that it was not an abuse of discretion to
    4
    allow the victim to testify via closed circuit television because face-to-face
    arrangement would inhibit her testimony and cloud the jury's search for truth).
    Indeed, even after explaining that the trial judge, attorneys, and bailiff would
    be present, Francine expressed concern to her mother that Appellant would
    touch her if the two were in the courtroom together.
    The aforementioned testimony that Francine was frightened by even the
    thought of seeing Appellant is sufficient to prove that Francine's trepidation
    goes beyond a de minis nervousness or "reluctance to testify."     See 
    Kurtz, 172 S.W.3d at 411
    (sole testimony of children's mental health counselor was
    sufficient to support the trial court's finding of a compelling need); Hardy v.
    Commonwealth, 
    719 S.W.2d 727
    , 728-29 (Ky. 1986) (videotaped deposition was
    properly used at trial after psychologist and treating physician opined that it
    would be emotionally and psychologically detrimental to require a six-year-old
    victim to testify in person at trial). Furthermore, we believe the distress
    Francine may have endured if forced to testify in open court makes it extremely
    likely that her testimony would have been hindered. As a result, "and in the
    interest of presenting all evidence to the jury," we conclude that the trial court
    did not abuse its discretion in finding a compelling need. See 
    Danner, 963 S.W.2d at 635
    .
    For the aforementioned reasons, the Daviess Circuit Court's judgment is
    hereby affirmed.
    All sitting. Minton, C.J.; Abramson, Barber, Cunningham, Keller, and
    Venters, JJ., concur. Noble, J., concurs in result only.
    5
    COUNSEL FOR APPELLANT:
    Erin Hoffman Yang
    Assistant Public Advocate
    COUNSEL FOR APPELLEE:
    Jack Conway
    Attorney General of Kentucky
    Nathan Todd Kolb
    Assistant Attorney General of Kentucky
    

Document Info

Docket Number: 2014 SC 000408

Filed Date: 8/17/2015

Precedential Status: Precedential

Modified Date: 8/20/2015