lMPORTANT NOT|CE
NOT TO BE PUBL|SHED OP|N|ON

TH|S OP|N|ON lS DESIGNATED “NOT TO BE PUBL|SHED.”
PURSUANT TO THE RULES OF C|VlL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(€),
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C|TED OR USED AS B|ND|NG PRECEDENT lN ANV OTHER
CASE |N ANY‘ COURT OF TH|S STATE; HOWEVER,
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RENDERED: DECEMBER 15, 2016
NOT TO BE PUBLISHED

§§npreme Tnurt of Benfnckg

2015-SC-OOO622-MR
JAMIE DARRELL KEENE APPELLANT

ON APPEAL FROM PIKE CIRCUIT COURT
V. HONORABLE EDDY COLEMAN, JUDGE
NO. 14-CR-00248

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT
AFFIRMING

A jury in Pike Circuit Court convicted Jamie Darrell Keene (Keene) of
1 three counts of first-degree rape. Consistent With the jury’s sentencing
recommendations, the trial court fixed his sentence at seventy-years’
imprisonment

Keene now appeals as a matter of right, Kentucky Constitution §
1 10(2)(b), arguing that the trial court erred by: (1) permitting the
Commonwealth, during its opening statement, to comment on a defense
witness’s credibility; (2) admitting hearsay testimony from two of the
Commonwealth’s witnesses; (3) admitting testimony regarding Keene’s prior
assault conviction; and (4) admitting testimony that Keene invoked his right to
silence during an interview With police. For the reasons set forth below, We

affirm.

I. BACKGROUND

When the victim in this matter, A.C., was four years old, Keene married
A.C.’s mother, Angel Keene (Angel). In November 2013, Keene was investigated
for assaulting Angel, and Child Protective Services (CPS) began monitoring A.C.
Shortly thereafter, A.C. was removed from the home of Keene and Angel, and
placed in the care of Keene’s mother, Donna Keene (Donna). On November 23,
2013, in coordination with CPS’s prevention plan, Donna transported A.C. to
Judy’s Place, a support home for abused children. Once at Judy’s Place, A.C.
submitted to a forensic interview in which she denied that Keene had Sexually
abused her. However, during a second interview at Judy’s Place on April 1,
2014, A.C. recanted her previous statements and provided numerous details of
rape and physical abuse by Keene. With the information A.C. provided in the
second interview, Keene was indicted in Pike County on three counts of first-
degree rape, which occurred between July 1, 2013 and January 27, 2014. A.C.
was eleven years old at the time of each rape.

At trial, A.C. testified that she did not feel safe during her first interview
due to threats from Donna that, if she testified, Donna would “kick” her and
her family out of her house. A.C. later testified that Keene had raped her: in
his Chevrolet Blazer on a remote hill in Pike County; in the garage of the home
they shared; and in Keene and Angel’s bedroom during Keene’s birthday party.
She also testified that: during the first rape, she began to cry and Keene said
he would do it harder if she did not stop crying; she began to bleed following

one of the rapes and Keene told her that he had “popped her cherry”; and

2

Keene told her that if she or Angel got him in trouble that he would kill them
both. A.C. testified that she had seen Keene beat her mother many times;
thus, she believed his threats to be true. We note that Keene admitted at trial
that he pled guilty to domestic violence against'Angel and that, during the
course of the sexual abuse investigation, he was incarcerated. We set forth
additional facts as necessary below.
II. STANDARD OF REVIEW

Each of Keene’s challenges on appeal was unpreserved in the trial court.
An unpreserved error may generally be noticed on appeal if the error is
“palpable” and if it “affects the substantial rights of a party.” Kentucky Rule of
Criminal Procedure (RCr) 10.26. Even then, relief is appropriate only “upon a
determination that manifest injustice resulted from the error.” Id. “For an
error to rise to the level of palpable, it must be easily perceptible, plain, obvious
and readily noticeable.” Doneghy v. Commonwealth, 410 S.W.3d 95, 106 (Ky.
2013) (internal citation omitted). “When we engage in palpable error review,
our focus is on what happened and whether the defect is so manifest,
fundamental and unambiguous that it threatens the integrity of the judicial
process.” Baumia v. Commonwealth, 402 S.W.3d 530, 542 (Ky. 2013) (internal
citation omitted).

III. ANALYSIS

A. While the Commonwealth’s comments during its opening statement
constituted error, it did not rise to palpable error.

During opening statement, the Commonwealth’s Attorney made the

following three statements that Keene asserts constituted prosecutorial

3

misconduct The first statement concerned Angel and the influence Keene had
over her:

I think that once you’ve heard all the evidence in this case, you’re

going to see that Angel Keene, the mother of [A.C.] was like a

whipped dog.

The next statement concerned A.C. and the differing interviews she
gave at Judy’s place:

Jamie Darrell Keene doesn’t want the things going on in that

household to be seen in the light of day, and so this secrecy and

this, ‘Oh, you can’t believe them, they have told more than one

story. We’ll get away with this, because you can’t believe anything

this child has said,’ and I am here to tell you when you understand

the timing of what she said, and you understand why she said

what she said, you’ll know which interview she gave was the

truthful one.

The last statement concerned Donna and whether or not she had
threatened to kick A.C. out of her house if she reported Keene’s sexual
abuse:

You’re going to hear about Donna Keene, the Defendant’s mother,

and the efforts that She took. I don’t think she will admit to you

when I put her on the stand. I don’t expect her to, I don’t think

she’s going to be truthful here.

We note that it is well-settled that opening statements and closing
arguments are not evidence and prosecutors are given considerable latitude
during both. Stopher v. Commonwealth, 57 S.W.3d 787, 805-06 (Ky. 2001).
However, this latitude does have limits. See, e.g., Commonwealth v. Mitchell,

165 S.W.3d 129 (Ky. 2005). This Court has consistently held that, “[i]t is never

proper in an opening statement for counsel to argue the case or to give [her]

personal opinions or inferences from the facts [she] expects to prove.” Tumer v.
Commonwealth, 240 S.W.2d 80, 81 (Ky. 1951).

While the Commonwealth’s first comment, referring to Angel as a
“whipped dog,” may have been harsh, it did not exceed the bounds of a proper
opening statement As such, we find no error in the Commonwealth’s first
comment.

Next, we discern no error in the Commonwealth’s second comment. By
telling the jury it would understand which of A.C.’s interviews were truthful
based on the timing and the circumstances of the interviews, the
Commonwealth’s Attorney merely asked the jury to do precisely what it is
empaneled to do: evaluate the veracity of the witnesses’ testimony based on the
evidence presented. As such, the Commonwealth’s second comment, although
bordering on argument, was not palpably impermissible

Lastly, the Commonwealth’s Attorney inarguably gave her personal
opinion as to the veracity of Donna’s proposed testimony. We agree with Keene
that this comment was improper. Nonetheless, this Court will only reverse a
conviction where “the misconduct of the prosecutor [was] so serious as to
render the entire trial fundamentally unfair.” Stopher, 57 S.W.3d at 805 (Ky.
2001). Here, the Commonwealth’s comments occurred during its opening
statement Subsequently, the jury heard Donna’s testimony, and both parties
examined her. Thus, the jury was able to evaluate for itself the veracity of
Donna’s testimony and was not required to rely on the Commonwealth’s

opening statement to reach its decision. We hold that, while the

5

Commonwealth’s third comment was improper, it was not so egregious as to
render the entire trial fundamentally unfair.

B. The trial court did not err in permitting the statements of Pam
Taylor and Dr. Arwanda Wells.

Keene asserts that the trial court erred in admitting hearsay evidence
and allowing the Commonwealth to bolster A.C.’s testimony through the
testimony of Pam Taylor (Taylor) and Dr. Arwanda Wells (Dr. Wells).
Specifically, Keene bases his assertion on the two witnesses’ recitation of what
A.C. told them during her interviews at Judy’s Place. Keene contends that the
testimony is hearsay and that, because there is “no hearsay exception for
statements made by an alleged victim of sexual abuse to a ‘forensic interviewer’
or doctor,” the evidence is inadmissible The Commonwealth concedes that the
testimony of both witnesses constituted inadmissible hearsay. However, we '
disagree with the parties that the evidence was inadmissible

1. Pam Taylor’s testimony.

- Taylor testified during direct examination that A.C. changed her story
between the April and November interviews because A.C. said she was scared
after Keene had threatened her and her mother, According to Taylor, A.C.
related to her numerous details regarding incidents of rape and sexual abuse
by Keene; she also testified that there was a greater likelihood of recantation
when a child still had contact with the person who had abused them.

The Kentucky Rules of Evidence define hearsay as “a statement, other
than the one made by the declarant while testifying at trial or hearing, offered

in evidence to prove the truth of the matter asserted.” Kentucky Rule of
6

Evidence (KRE) 803(c). Unless the rules of evidence provide therefor, hearsay
is prohibited by KRE 802. Keene argues that Taylor’s testimony contained the
hearsay statements of A.C., and that none of these statements fall under a
valid exception to the hearsay rule

However, A.C.’s statements, as made clear within the full'context of the
Commonwealth’s direct examination, were not offered into evidence to prove
the truth of the matter asserted - i.e., that Keene had threatened A.C. Rather,
this testimony was offered to show the effect Keene’s threats had on A.C. in
order to explain her recantation following her November 2013 interview at
Judy’s Place. Because this testimony was not admitted to prove the truth of
the matter asserted, i.e., that Keene had threated A.C., it did not constitute
hearsay.

Furthermore, the testimony did not bolster A.C.’s testimony, as Keene
asserts. Taylor did not testify to A.C.’s truthfulness or whether she was, in
fact, raped by Keene. Rather, she testified only to what A.C. told her and why
A.C. changed her story. Thus, this testimony did not bolster A.C.’s contention
that Keene raped her.

Finally, we note that A.C. had already testified to her having been
threatened by Donna and Keene, as well as to numerous instances of Keene
raping her. For the preceding reasons, we discern no error in the trial court

admitting Taylor’s testimony.

2. Dr. Arwanda Wells.

At trial, Dr. Wells testified that she had performed a physical evaluation

on A.C. to determine if she had engaged in sexual activity. A.C.’s examination

took place on December 4th, 2013 - less than a month after the allegations of

sexual abuse were reported to CPS. Dr. Wells testified that her findings were

“non-specific,” in that she could not say with whom A.C. had had sex, but she

was able to determine that someone had in fact penetrated A.C.’s vagina.

Keene asserts that submission of the following testimony by Dr. Wells during

the Commonwealth’s direct examination constituted error:

Commonwealth Attorney:

Dr. Wells:

Commonwealth Attorney:

Dr. Wells:

Commonwealth Attorney:

Dr. Wells:

Commonwealth Attorney:

Dr. Wells:

And in fact, did [A.C.] make any
statements to you about prior sexual
contact?

Umm, she did.
And who did she attribute that to?

She initially told me that a boyfriend, a
boyfriend, that she had had sex one time
with a boyfriend. That’s what she told me

And I note, on the last page of your report
you have a number of options that you
can check off under summary of physica
findings. '

Yes.

Can you please list for the jury what you
did check off and explain what that
means?

Okay, so I checked off “normal exam
consistent with history,” because she told
me in her, When l spoke to her, that she

8

said she had had some sexual activity,
okay.

We first note that Dr. Wells never attributed any sexual activity with A.C.
to Keene. The above testimony was admissible not as evidence of A.C. having
had sex with a boyfriend - the truth of the matter asserted - it was offered to
explain Dr. Wells’s findings that A.C. was sexually active Thus, because the
testimony was not offered to prove the truth of the matter asserted, it is not
hearsay. See KRE 801(c).

Furthermore, the testimony did not bolster any claim that A.C. or any
other witness had previously made As such, we hold that the trial court did
not err by permitting Dr. Wells’s testimony. However, we note that, even if Dr.
Wells’s testimony had constituted error, it would have been harmless because
it did not implicate Keene, rather, it provided him a countervailing version of
events with which to argue to the quy.

C. The trial court did not err in admitting evidence of Keene’s prior
assaultive behavior.

Keene contends that the trial court erred by admitting evidence of his
prior assaultive behavior toward A.C., Angel, and others. He challenges the
admission of the evidence by asserting that it was improper KRE 404(b)
evidence and that'its probative value was substantially outweighed by the
danger of undue prejudice, thereby violating KRE 403. On the second day of
trial, the judge admonished the jury that they should consider the testimony
that Keene engaged in assaultive conduct toward A.C., Angel, and others, “only

for the limited purpose of determining whether [Keene] utilized such acts, if he

9

did so, to accomplish or facilitate the commission of the crime which he is
charged for as a motive for why . . . the alleged victim did not immediately
disclose the offenses at the time they had occurred, if they did so.” While we
note that neither the record before us nor the parties indicate at whose request
the trial court admonished the jury, Keene clearly stated during the preceding
bench conference that he had no objection to such an admonition.

1. KRE 404(b).

Evidence of prior crimes or bad acts must be relevant “for some purpose
other than to prove the criminal disposition of the accused . . . .” Meeoe v.
Commonwealth, 348 S.W.3d 627, 662 (Ky. 2011). Keene arguesthat 404(b)(1]
permits the introduction of Keene’s “bad acts” to show motive only if the motive
pertains to Keene, himself - not if the motive pertains to a testifying witness.
We agree KRE 404(b)(1) states:

Other crimes, wrongs, or acts. Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith. It
may, however, be admissible:

(1) If offered for some other purpose, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident[.]

It is clear that KRE 404(b)(1)’s “motive” exception pertains to the person
who committed the “bad act” - in this case, Keene. Because Keene’s acts are at
issue, it is Keene’s motive that is also at issue - not A.C.’s.

But this does not end our analysis. The statements were admissible

under 404(b)(2). KRE 404(b)(2) permits evidence of other crimes, wrongs, or

acts to be used “[i]f so inextricably intertwined with other evidence essential to

10

the case that separation of the two (2) could not be accomplished without
serious adverse effect on the offering party.” Here, A.C. reported Keene’s
sexual and physical abuse during her April 2014 interview. A.C.’s April 2014
interview was the primary reason for Keene’s indictment and her testimony at
trial confirming the information she gave in that interview was the
Commonwealth’s primary evidence In his opening statement, Keene asked
the jury “that [they] be able to weigh [A.C.’s] conflicting statements, that [they]
consider that one or the other may or may not be true, because there is no
possible way that both can be true.” The Commonwealth was entitled to offer
evidence explaining why A.C.’s April 2014 interview differed from her
November 2013 interview. In disputing Keene’s attack on A.C.’s testimony,
evidence of his assaultive behavior was inextricably intertwined with the
evidence of rape, and it is clear to us that the two could not have been
separated without serious effect on the Commonwealth. Therefore, we discern

no error here.

2. KRE 403.

Keene also asserts that evidence of his assaultive behavior toward A.C.,
her mother, and others was inadmissible under KRE 403 because it was more
prejudicial than probative KRE 403 provides that, “[a]lthough relevant,
evidence may be excluded if its probative value is substantially outweighed by
the danger of undue prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, or needless presentation of cumulative

evidence.”

11

As this Court noted in its decision in Webb v. Commonwealth, the trial
court must make three basic inquiries when engaging in a KRE 403
determination:

(i) assessment of the probative worth of the evidence whose

exclusion is sought; (ii) assessment of the probable impact of

specified undesirable consequences likely to flow from its

admission (i.e., “undue prejudice, confusion of the issues, or v

misleading the jury, . . . undue delay, or needless presentation of

cumulative evidence”); and (iii) a determination of whether the

product of the second judgment (harmful effects from admission)

exceeds the product of the first judgment (probative worth of

evidence).

387 S.W.3d 319, 325-26 (Ky. 2012).

` KRE 403 “does not offer protection against evidence that is merely
prejudicial in the sense that it is detrimental to a party’s case.” Id. Evidence of
Keene’s assaultive behavior was probative as to why A.C. gave inconsistent
statements during her interviews at Judy’s Place. Any negative impact in
admitting such testimony was diluted by the trial judge admonishing the jury,
“Jurors are presumed to have followed an admonition.” Tamme 1).
Commonwealth, 973 S.W.2d 13, 26 (Ky. 1998). By admonishing the jurors not
to base their opinions as to the charged crimes on Keene’s assaultive behavior,
the judge sanitized any concerns of undue prejudice, confusion of issues, or

misleading of the jury. Therefore, we hold that the evidence of Keene’s

assaultive behavior was properly permitted and did not violate KRE 403.

12

D. The trial court did not err by permitting John Preston’s testimony
regarding CPS’s investigation into Keene’s domestic abuse. The
trial court did err by permitting John Preston’s testimony regarding
Keene’s incarceration; however, that error was harmless.

Keene argues that the trial court erred by admitting the testimony of
social worker, John Preston (Preston). Specifically, Keene complains that
Preston’s testimony regarding his incarceration violated KRE 403 because it
was more prejudicial than probative

During the Commonwealth’s direct examination, Preston, who took the
witness stand before A.C., was asked where A.C. and Angel were living when
CPS began its investigation. Preston stated, “She stayed in the trailer.” The
Commonwealth prompted, “...with?” Preston then replied, “At that time-- She
was by herself at that time because l think Mr. Keene was back incarcerated.”
The Commonwealth then asked, “To your knowledge, did he ever get out of jail
or come back to live in that residence with Angel Keene again?” To which
Preston responded, “Not after that time, not to my knowledge.”

Additionally, Keene complains that the trial court erred in admitting
Preston’s testimony that, in performing a domestic violence assessment, he
looked at Keene’s and Angel’s arrest records, and that allegations of the
couple’s domestic violence had been substantiated during his investigation.

Preston’s testimony regarding Keene’s domestic violence was not more
prejudicial than probative See KRE 403. His testimony regarding CPS’s
investigation into Keene’s and Angel’s domestic violence was probative into the
procedure CPS initiated which, ultimately, led to A.C.’s first and second

interviews. The Commonwealth is entitled to present a complete picture of the

13

crime charged and the investigation leading to those charges. Adkins 1).
Commonwealth, 96 S.W.3d 779, 793 (Ky. 2003). “[A] jury cannot be expected
to make its decision in a void - without knowledge of the time, place, and
circumstances of the acts which form the basis of the charge” Kerr v.
Commonwealth, 400 S.W.3d 250, 262 (Ky. 2013) (citing United `States v. Moore,
735 F.2d 289, 292 (8th Cir. 1984)).

However, Preston’s testimony revealing the fact that Keene was
incarcerated at the time Preston interviewed him was more prejudicial than
probative See KRE 403. As we have noted elsewhere in this opinion, the fact
that Keene was or was not incarcerated was entirely irrelevant to whether or
not he raped A.C. Thus, this evidence was not probative, rather, it required the
jury to ignore the fact that Keene was incarcerated for crimes for which he was
not on trial in the instant matter. However, while permitting this testimony
was error, the error was harmless because A.C. had already testified to Keene
having been incarcerated and having seen him assault Angel, Furthermore,
Keene confirmed at trial that he was incarcerated for domestic violence against
Angel.

As we noted above, Keene’s assaultive behavior was relevant as to why
A.C. did not allege that Keene raped her during her first interview but then
later recanted. While Preston was entitled to testify to CPS’s investigation into
Keene, he exceeded that entitlement by testifying to Keene’s incarceration
Evidence that Keene was incarcerated was more prejudicial than probative

See KRE 403. We hold that permitting Preston’s testimony regarding Keene’s

14

assaultive behavior was not error. And although permitting Preston’s

testimony regarding Keene’s incarceration was error, that error was harmless.

E. The trial court erred by admitting Detective Kevin Newsome’s
testimony regarding Keene’s invocation of his right to remain silent.

However, that error did not rise to palpable error,

During the Commonwealth’s direct examination of Detective Kevin
Newsome (Detective Newsome), the Commonwealth’s Attorney asked two
questions that Keene contends were improper and require reversal of his
conviction. Keene complains that the trial court erred when it admitted
Detective Newsome’s testimony regarding Keene’s incarceration and his
invocation of his right to remain silent under the Fifth and Fourteenth
Amendments to the United States Constitution and Section Eleven of the
Kentucky Constitution. We agree However, admitting Detective Newsome’s
testimony did not constitute palpable error,1

1. Testimony related to Keene’s incarceration.

During the Commonwealth’s direct examination of Detective Newsome,

the Commonwealth elicited the following testimony:

Commonwealth Attorney: Ok and where was Mr. Keene located
when you conducted that interview?

Detective Newsome: He was in the Pike County Detention
Center.

We first note that Detective Newsome’s testimony that Keene was in the
Pike County Detention Center violated KRE 403. KRE 403 states that relevant

evidence may be excluded if its probative value is substantially outweighed by

 

1 We note that the Commonwealth did not address this issue in its brief.
15

the danger of undue prejudice Here, there was nothing probative in asking
Detective Newsome where Keene was located when he was interviewed.
However, as we discussed above, evidence that Keene had assaulted Angel was
inextricably intertwined with the Commonwealth’s primary evidence: A.C.’s
testimony regarding her second interview. See KRE 404(b)(2). While Detective
Newsome’s testimony regarding Keene’s incarceration was more prejudicial
than probative, it did not result in manifest injustice See RCr 10.26. In so
deciding, we note that A.C. had testified to Keene’s incarceration and Keene
later confirmed his incarceration on the witness stand. Therefore, we hold
that, although error, Detective Newsome’s testimony did not rise to the level of

palpable error.

2. Testimony related to Keene’s invocation of his right to remain
silent.

Next, we address Detective Newsome’s statement regarding Keene’s
invocation of his Miranda rights.2 During its direct examination, the
Commonwealth continued questioning Detective Newsome regarding his
interview with Keene;

Commonwealth Attorney: Ok, now about how long did your
interview with him last?

Detective Newsome: It was very short, I don’t know, it was not
a long interview, at that point he invoked
his Miranda rights.

We first note that “[t]he Commonwealth is prohibited from introducing

evidence or commenting in any manner on a defendant's silence once that

 

2 See Miranda v. Arizona, 384 U.S. 436 (1966).
16

defendant has been informed of his rights and taken into custody.” Hunt v.
Commonwealth, 304 S.W.3d 15, 35 (Ky. 2009). However, as this Court stated
in Nunn v. Commonwealth “Not every isolated instance referring to post-arrest
silence will be reversible error. Typically reversal is warranted where the
prosecutor has repeatedly mentioned and emphasized an accused’s post-arrest
silence.” 461 S.W.3d 741, 751 (Ky. 2015) (citing Wallen v. Commonwealth, 657
S.W.2d 232, 233 (Ky. 1983)). Moreover, the error is only reversible where
“post-arrest silence is deliberately used to impeach an explanation
subsequently offered at trial or where there is a similar reason to believe the
defendant has been prejudiced by reference to the exercise of his constitutional
right” Wallen, 657 S.W.2d at 233.

Here, the Commonwealth did not use Keene’s invocation of his right to
remain silent to impeach an explanation Keene had previously made In fact,
Detective Newsome’s testimony was introduced as a result of his own
elaboration - not directly elicited by the Commonwealth’s question. Thus, we
discern no deliberate attempt by the Commonwealth to elicit this testimony.
However, we strongly caution the Commonwealth that it should more strictly
instruct its witnesses to answer the questions posed to them and not elaborate
beyond the scope of the questions presented. ‘

The Commonwealth’s question regarding the duration of Keene’s
interview was entirely irrelevant and most certainly constituted error.

However, we stand by our decision in Nunn. lt does not appear to this Court

that the complained-of testimony was “repeated, emphasized, or used as a

17

prosecutorial tool.” Hunt, 304 S.W.3d at 37. Nor does it appear that Keene
was prejudiced in any way by the reference to his invocation of his right to
remain silent See Nunn, 461 S.W.3d at 751. Therefore, we hold that the
single reference to Keene’s invocation of his right to remain silent did not result

in palpable error.
IV. CONCLUSION

For the foregoing reasons, the judgment of the Pike Circuit Court in this

matter is affirmed.

All sitting. Minton, C.J., Hughes, Keller, Noble and Wright, JJ., concur.

Cunningham and Venters, JJ., concur in result only.

COUNSEL FOR APPELLANT:

Stephen W. Owens

COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

James Hays Lawson
Assistant Attorney General

18

