Sallee v. Commonwealth

ANTONIO SALLEE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

2019-SC-000030-MR

Supreme Court of Kentucky

MAY 28, 2020

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.

NOT TO BE PUBLISHED

ON APPEAL FROM CHRISTIAN CIRCUIT COURT

HONORABLE JOHN L. ATKINS, JUDGE

NO. 17-CR-00166

MEMORANDUM OPINION OF THE COURT

REVERSING AND REMANDING

Antonio Sallee ("Sallee"), appeals his convictions of fifteen (15) counts of sexual crimes against two of his step-granddaughters. These include: one count of first-degree sexual abuse; six counts of first-degree sodomy; one count of first-degree rape; and seven counts of first-degree incest. Sallee contends that the trial court erred by (1) instructing the jury on ten (10) new and unindicted felony charges; (2) giving the jury flawed instructions which resulted in a violation of his right to a unanimous verdict; (3) subjecting him to a second trial for two counts of sodomy and two corresponding counts of incest regarding Jane, after a directed verdict had been entered in his favor in the prior trial; (4) permitting one child's mother to bolster the child's credibility; (5) instructing the jury on incest charges for acts for which he was also charged with sodomy and rape; (6) finding the children were competent to testify andwithout a formal oath; and (7) permitting the jury to hear inaccurate testimony about parole eligibility in the penalty phase.

The Commonwealth concedes that a reversal is required because the trial court (1) added ten (10) unindicted charges, (2) gave jury instructions that led to a unanimous verdict violation, and (3) retried Sallee on four (4) previously adjudicated charges which had been dismissed on a directed verdict motion. While the Commonwealth concedes that it was error to permit the child's mother to bolster her testimony, as the error is unpreserved, the Commonwealth asserts that the error did not result in manifest injustice. The Commonwealth does not concede that the incest charges violated double jeopardy principles, nor does it agree that there was error as to the finding of competency to testify or error as to the probation and parole testimony.

I. FACTUAL BACKGROUND

Sallee and Rosetta Sallee ("Rosetta") had been married for seven years and resided in Hopkinsville, Kentucky. Between July 2015 and February 2016, Rosetta's daughter Emily (mother of Jane) and Jane¹ lived in the Sallee household for about a month and a half. Rosetta's other daughter, April (Mary's mother), and Mary, also spent time in the Sallee home during the same time period.

In December 2016, April reported to police that Mary had been sexually abused by Sallee. After an investigation, Sallee was indicted on the following six charges stemming from the alleged sexual abuse of his step-grandchildren:sexual abuse, first-degree (Mary); sodomy, first-degree (Jane); rape, first-degree (Jane); unlawful transaction with a minor, first-degree (Mary); incest (Jane); and indecent exposure, first-degree (Mary). The indictment was amended about a year later to add three additional charges pertaining to Mary: sodomy, first-degree; rape, first-degree; and incest.

The first trial was held April 26, 2018. At the conclusion of the trial, the court granted a directed verdict on the charges of rape, first-degree (Mary); sodomy, first-degree (Jane); indecent exposure, first degree (Mary); and unlawful transaction with a minor. Because the jury was unable to reach a verdict on the remaining charges, a mistrial was declared.

When the case was tried again a couple of months later, both children testified. Mary, who was eight at the time of the trial, testified Sallee touched her on her "front part" with his tongue, licking her. When asked, she testified that this type of encounter happened more than once. Mary testified that it happened in the living room on the couch at her grandma's when she was six. Mary also stated that sometimes when her cousins would come to their grandmother's house Sallee would put her in the laundry room and would do a similar act with her on the dryer.

The prosecutor then asked Mary if Sallee did anything else to her and she stated "no." Then the prosecutor asked her if Sallee touched her with any other parts of his body. Mary testified that Sallee put his "front part" into her "bottom" and moved it back and forth. She stated this occurred when she was six, that it hurt, and that Sallee told her to keep it secret. Mary testified that it was always on the living room couch and that it occurred more than one time.

April, Mary's mother, testified about behavioral changes in Mary that she noticed before she went to police. She testified that Mary began having accidents on herself, refused to bathe on her own, and exhibited a different attitude.

Jane was seven when she testified at the second trial and she carried her doll Annabelle with her to the stand. She initially had trouble verbalizing where she was touched, but finally did say he touched her "front spot." Jane stated that Sallee touched her where he was not supposed to touch her. When the prosecutor asked her to come off the witness stand and identify Sallee, she became very upset. Jane stated she could not answer questions, could not say where he touched her, the court then stated she did not have to look around the courtroom. The prosecutor tried to have her declared unavailable, but the court denied the request. The court then took a break.

When Jane returned she had two dolls, and the prosecutor asked her to show where Sallee touched her. She paused for almost a minute before she would answer. Jane then indicated that Sallee touched her crotch, pointing to the crotch on the doll, and said he touched her crotch with his tongue. She stated that it happened at his house, in the living room on the couch. The prosecutor then asked if Sallee touched her with his tongue more than once, and Jane responded "more." Jane also stated that on another occasion it happened in the laundry room, on top of the dryer.

Jane further testified that Sallee had put his "private part" in her "private part." The prosecutor asked her if this had occurred more than once, to which Jane responded "more." Jane said she was in the laundry room when it happened, and that her grandmother was in her room when it happened. Janewas five years old at the time and she said that her three-year-old sister walked in, but Sallee did not do anything. Jane testified that she does not remember if Sallee said anything to her when it happened, and that she did not remember anything else from when she was five.

At the close of the second trial Sallee was found guilty of fifteen (15) separate counts: one count of sexual abuse; six counts of sodomy; one count of rape; and seven counts of incest. Sallee was sentenced to ten years for the one count of sexual abuse, thirty years on each count of sodomy, thirty-five years on the count of rape, and thirty years on each count of incest to run for a total of seventy (70) years.

II. ANALYSIS

A. THE COMMONWEALTH CONCEDES THAT THE TRIAL COURTERRED BY ADDING ADDITIONAL UNINDICTED FELONY CHARGES

The Fifth Amendment requires that a defendant only be tried for criminal conduct that is presented in an indictment handed down by a grand jury.² Sallee submits that he went to trial facing five charges yet was convicted of fifteen. Further, it is a constitutional requirement of an indictment to "sufficiently apprise a defendant of the conduct for which he is called to answer."³ Sallee claims that as a result of these additional charges without an amended indictment he was not presented with an opportunity to plan a defense to all of the state's accusations, violating his Fourteenth Amendment rights. Furthermore, pursuant to Kentucky Rules of Criminal Procedure (RCr)6.16, "[t]he court may permit an indictment, information, complaint or citation to be amended any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced."

The Commonwealth notes that the jury convicted Sallee on ten felony counts that had not been charged in the indictment. The Commonwealth states that while an indictment can be amended at any time pursuant to RCr 6.16, and while these additional charges were of the same type of crime, they are ten entirely separate criminal acts.

The Commonwealth concedes that Sallee was not provided notice of the ten additional felonies of which he was ultimately convicted. Additionally, the Commonwealth concedes that it was improper to subject Sallee to conviction on these ten unindicted charges. Upon retrial, the jury shall only be instructed on charges as per the indictment.

B. UNANIMOUS JURY VERDICT ISSUE

Sallee argues that the jury instructions provided were not unanimous since both Mary and Jane testified that the acts perpetrated by Sallee occurred more than once. "Section 7 of the Kentucky Constitution requires a unanimous verdict."⁴ Sallee claims that in the present case, the jury could not differentiate which of the incidents they were being instructed on. The Commonwealth concedes that the instructions were deficient "since they did not have the jury identify which 'more than once' instance on which it was convicting."

Because we are reversing on...