Davis v. Commonwealth

1

DURRELL DAVIS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

No. 2022-SC-0301-MR

Supreme Court of Kentucky

January 18, 2024

NOT TO BE PUBLISHED

ON APPEAL FROM KENTON CIRCUIT COURT HONORABLE KATHLEEN LAPE JUDGE NO. 21-CR-01403

COUNSEL FOR APPELLANT: KATHLEEN SCHMIDT ASSISTANT PUBLIC ADVOCATE

COUNSEL FOR APPELLEE: RUSSELL M. COLEMAN KENTUCKY ATTORNEY GENERAL MATTHEW R. KRYGIEL ASSISTANT ATTORNEY GENERAL

MEMORANDUM OPINION

Durrell Davis was indicted on charges of sodomy in the first degree victim under 12, and sexual abuse in the first degree, victim under 12, relative to conduct allegedly perpetrated against his girlfriend's minor daughter. Both charges were alleged to have occurred in a continuing course of conduct^[1] over a four-and-a-half-year period. Following a jury trial, Davis was convicted and received a life sentence. He now appeals as a matter of right.^[2] We affirm.

FACTS AND PROCEDURAL HISTORY

In late 2018, after a presentation on body safety and inappropriate touching at her elementary school, Nicole^[3] reported to her second-grade teacher that Davis had touched her in her "bathing suit area."^[4] The teacher alerted the appropriate authorities and an investigation into potential sexual abuse was initiated. The investigation revealed Davis had previously been involved in a sexual relationship with Nicole's mother, DeeDee, and would often stay overnight at DeeDee's apartment in Covington, Kentucky. Nicole disclosed that Davis abused her when she was between three and five years of age. She stated Davis would remove her clothes and touch her private parts with his hands, mouth, and penis. The abuse occurred on two or three occasions and Davis warned her not to tell anyone what had happened.

During a voluntary interview with police on March 15, 2019, Davis stated he was a father-figure to Nicole and considered her his "starter-daughter" although they were not biologically related. In response to the allegations against him, he told investigators Nicole was a hypersexualized child who was "thirsty" for knowledge about sex. She would often enter the room while he and DeeDee were engaging in sexual relations, and she repeatedly tried to touch and kiss his genitals. Davis said Nicole would often awaken him by "grinding" on him or sitting on his face. He indicated that on one occasion, Nicole masturbated him almost to the point of ejaculation before he awoke sufficiently to stop the contact. Davis admitted to having dreams of having sex with Nicole. He claimed to have told DeeDee about Nicole's inappropriate conduct, but she seemed unconcerned. Davis stated he left his relationship with DeeDee when Nicole was three or four and had no contact with them after about 2015 when he moved to Cincinnati, Ohio.

Sometime after the interview, Davis contacted several of his family members and made incriminating statements. After the phone calls, Davis, his mother, brother, and sister had a family meeting where Davis made more horrific and damning admissions. He told his relatives Nicole was like "crack cocaine" to him, he "had to have her," and that he "loved the way [she] tasted." He said he "had never been so hard in his life" and that Nicole "brought out the monster" in him. Davis indicated Nicole was coming on to him and he was just giving her what she wanted. When pressed on how often things happened between the two, he stated "10, 50, 80, 100, I don't know how many times."

A jury convicted Davis of sodomy in the first degree and sexual abuse in the first degree. He received a life sentence for the sodomy conviction and a concurrent five-year sentence for the sexual abuse conviction. This appeal followed.

ANALYSIS

Davis now raises six allegations of error in seeking reversal. First, he contends the continuing course of conduct language in the instructions violated the rule laid down in Ramos v. Louisiana, 590 U.S.___, 140 S.Ct. 1390 (2020).

Second, and closely related to his first argument, he asserts the jury instructions contained double jeopardy and unanimity violations. Next, Davis argues the trial court failed to find a compelling need before permitting Nicole to testify out of his line of sight. Fourth, Davis contends the trial court erroneously permitted the Commonwealth to introduce improper KRE^[5] 404(b) evidence against him. Davis next alleges the trial court prevented him from putting forward a defense when it limited his cross-examination of a police detective. Finally he contends two police detectives were improperly permitted to give irrelevant testimony during the penalty phase of the trial.

Several of the arguments raised on appeal were admittedly not preserved for appellate review. To the extent his arguments are unpreserved, Davis requests palpable error review pursuant to RCr^[6] 10.26. Although not properly preserved, a palpable error "affects the substantial rights of a party" and "relief may be granted upon a determination that manifest injustice has resulted" from the error. RCr 10.26. To obtain a reversal based on an alleged palpable error, a defendant must show such error was "shocking or jurisprudentially intolerable." Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006). "When an appellate court engages in a palpable error review, its 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.

I. No Ramos violation occurred

Davis first argues the continuous course of conduct language in the instructions violated Ramos and his right to a unanimous verdict. This issue was admittedly not raised before the trial court and is unpreserved. We will therefore review only for palpable error.

In Ramos, the United States Supreme Court simply held the Sixth Amendment right to a unanimous verdict in criminal matters applies to the states through the Fourteenth Amendment. 140 S.Ct. at 1397. Louisiana and Oregon were the only two states directly affected by the ruling as those states allowed for a conviction on a finding of guilt by ten jurors. Id. at 1394. Ramos had no practical impact in the Commonwealth because "Kentucky has long required criminal convictions by a unanimous jury verdict." Capstraw v. Commonwealth, 641 S.W.3d 148, 158 (Ky. 2022). See also Wells v. Commonwealth, 561 S.W.2d 85, 87 (Ky. 1978) ("Section 7 of the Kentucky Constitution requires a unanimous verdict reached by a jury of twelve persons in all criminal cases[]"); KRS 29A.280(3) ("A unanimous verdict is required in all criminal trials by jury"); RCr 9.82(1) ("The verdict shall be unanimous. It shall be returned by the jury in open court[]").

Nevertheless, Davis asserts inclusion in the jury instructions of the continuing course of conduct language of KRS 501.100 violated Ramos and created a unanimity issue. Although his argument is underdeveloped and based primarily on speculation, supposition, and belief,^[7] it is clear that Davis seeks an expansive reading of the Ramos holding to cover a situation neither contemplated nor ruled upon by the Supreme Court. While unanimity was generally addressed, that opinion plainly does not reach the type of issue raised herein. Davis raises no challenge to the validity of KRS 501.100 and there is nothing in the record to indicate less than all twelve jurors voted for a finding of guilt. Under the facts presented, Ramos is inapplicable in this matter, and we decline Davis's invitation to expand it beyond its clear and narrow holding. There was no error, and certainly no palpable error.

II. The instructions did not violate unanimity or double jeopardy

Second, and closely related to his first argument, Davis contends the instructions presented unanimity and double jeopardy violations as they did not sufficiently differentiate between the acts identified as sodomy from the acts identified as sexual abuse. He asserts the language in the instructions made it possible for the jury to rely on the same conduct to convict him of the two separate charged offenses. Davis acknowledges his challenges are unpreserved and requests palpable error review. As an unpreserved alleged error, absent a finding that manifest injustice resulted, no palpable error will be deemed to have occurred. See Sexton v. Commonwealth, 647 S.W.3d 227, 232 (Ky. 2022) (holding that "reversal is not the universal, essential result of a unanimous verdict error. Where manifest injustice will not result, this Court can find no palpable error"). "In all cases presenting an unpreserved error regarding a unanimous jury, the courts must 'plumb the depths of the proceeding' and scrutinize the factual idiosyncrasies of the individual case. That includes a consideration of the weight of the evidence." Johnson v. Commonwealth, 676 S.W.3d 405, 417 (Ky. 2023) (quoting Martin, 207 S.W.3d at 4).

Davis presents a challenge based on what he characterizes as a "multiple-acts" unanimous-verdict violation as described in Martin v. Commonwealth, 456 S.W.3d 1, 6 (Ky. 2015). Further, he asserts the evidence permitted the jury to convict him of two crimes based on the same act thereby resulting in a double jeopardy violation. He contends the sexual abuse instruction merely required the jury to find he engaged in sexual contact with Nicole without specifying what body parts were used to perpetrate the crime or what act or acts would qualify as sexual contact. In his estimation, if the jury were to conclude his act of touching Nicole's vagina with his mouth constituted deviate sexual intercourse sufficient to convict him of sodomy, it would automatically also have to conclude he subjected Nicole to sexual contact. In short, he contends one cannot engage in deviate sexual intercourse without also engaging in sexual contact and thus the...