Opinion
NO. 2014-CA-000914-MR
05-08-2015
JAMES SCHOOK APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: David A. Lambertus Tricia F. Lister Louisville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky James C. Shackelford Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MITCHELL PERRY, JUDGE
ACTION NOS. 11-CR-002004 AND 14-CR-000798
OPINION
AFFIRMING
BEFORE: J. LAMBERT, STUMBO, AND VANMETER, JUDGES. J. LAMBERT, JUDGE: James Schook appeals from the Jefferson Circuit Court's judgment convicting him of one count of indecent or immoral practices with another and three counts of sodomy and sentencing him to 15 years in prison. After careful review, we affirm.
Schook was a Catholic priest in Louisville in the 1970s and was indicted in 2011 for alleged sexual misconduct involving two boys (R.W. and M.S.) while he was a priest or priest-in-training during the 1970s. With one exception, all the acts occurred before the enactment of the Kentucky Penal Code. Because of this, the Commonwealth obtained a superseding indictment on March 27, 2014, charging Schook with six counts of pre-Penal Code sexual misconduct and one count of Sodomy in the Third Degree, a violation of Kentucky Revised Statutes (KRS) 510.090(1)(b).
As instructed by the trial court, a jury ultimately found Schook guilty of indecent or immoral practices under former KRS 435.105 by placing his mouth onto the penis of R.W. between April 15, 1971, and April 14, 1972, when R.W. was less than 15 years old, and Schook was more than 18 years old. The jury also found Schook guilty of sodomy in violation of KRS 436.050 by placing his penis into R.W.'s anus between April 15, 1972, and April 14, 1974, when R.W. was "either 14 or 15 years of age and [Schook] was more than 18 years of age." The jury also found Schook guilty of Sodomy in violation of former KRS 436.050, by placing his penis into the mouth of R.W. between April 15, 1972, and April 14, 1974, when R.W. was "14 or 15 years old and [Schook] was more than 18 years old. Finally, the jury convicted Schook of Sodomy in violation of former KRS 436.050, when Schook placed his mouth on R.W.'s penis between April 15, 1972, and April 14, 1974, when R.W. was "less than 16 years old."
The parties agreed to refer to the alleged violations of former KRS 436.050 simply as "sodomy" without any reference to the term "buggery," which was part of the statute's heading. Since the jury acquitted Schook of some of the charges, the penalty phase instructions and the trial court judgment refer to the offenses for which Schook was convicted as instructions 1 through 4, respectively. The jury recommended a sentence of nine years on Count 3 of the indictment and two years each on the other three counts, all to run consecutively for a total of fifteen years. This appeal follows.
On appeal, Schook makes two central arguments. First, he argues that his entire trial was rendered unfair when the prosecutor directly referenced his failure to testify. Second, he argues that the indictment was complicated by the complete revision of the Kentucky Penal Code in 1974 and the changing nature of the law regarding homosexual activity. Schook contends that the indictment contained hybrid charges created by the prosecutor that did not accurately reflect the state of the law at the time of the alleged acts. Both the indictment and the instructions based on the indictment were faulty, according to Schook.
Schook argues that he exercised his Fifth Amendment right not to testify in his own defense, and that right forbids comment by the prosecution on the accused's silence at trial. See Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). During closing arguments, the prosecutor stated, "Does Jim Schook have anything to lose by telling you the truth? You bet he does." Schook immediately objected and moved to discharge the jury, which the trial court interpreted as a motion for a mistrial.
An appellant must make a "clear showing" that there was a manifest necessity for a mistrial. The trial court's determination of that issue is reviewed only for an abuse of discretion. Winstead v. Commonwealth, 327 S.W.3d 386, 403 (Ky. 2010); see also Major v. Commonwealth, 177 S.W.3d 700, 711 (Ky. 2006).
To give context to the prosecutor's statement, Schook had attacked the recollection of witnesses and argued reasonable doubt as to the dates of the offenses. For example, he referred to the Commonwealth Exhibit 5, which was a letter in Schook's personnel file written by Schook and dated in June 1972. He argued that this letter was inconsistent with dates of three of the charged offenses. He also attacked the credibility of the two victims who testified. He argued to the jury that R.W. testified he had continued sexual contact with Schook after he turned 16, that such contact was legal, and that perhaps R.W. had a broken heart when his relationship with Schook ended. Schook argued that both R.W. and M.S. first sought to obtain money before proceeding on the instant criminal charges.
The Commonwealth argues that because Schook had brought witness credibility into question, the prosecutor spent a considerable amount of time discussing witness credibility, including the credibility of R.W. and M.S. At the end of seven minutes of discussion, the prosecutor made the statement above, and Schook immediately objected. At the bench conference, Schook moved for a mistrial. The judge noted that Schook had cut the prosecutor off in mid-comment and asked what he had intended to say. The prosecutor replied, "I was going to say the defendants having nothing to gain by what they do." The judge thought the prosecutor was going to refer to a letter Schook had written appearing in the personnel files of the Archdiocese that included a reference to the date Schook had been assigned to one of the parishes. The prosecutor offered to "clear up" the comment by telling the jury that Schook had no obligation to testify but Schook declined because he thought it would only bring more attention to it. The judge told the prosecutor he could clean up the comment but to do so without commenting on Schook's failure to testify.
The prosecutor then told the jury:
In the course of the investigation, in the course of working for the archdiocese, obviously Mr. Schook filled out papers and did things in regard to his daily activities, and I think that recognizing a sense of guilt, you have to wonder if he is always going to be honest and truthful in regards to that.The Commonwealth argues that the prosecutor's comment, when viewed in context, was a reference to a letter penned by Schook and the credibility of the specific dates Schook set out in that letter. The Commonwealth points this Court to Ragland v. Commonwealth, 191 S.W.3d 569, 588 (Ky. 2006), wherein the Kentucky Supreme Court held that the prosecutor did not improperly comment on a defendant exercising his right not to testify when he stated, "The only person who knows where that shot was fired from exactly is the person sitting in that chair over there [indicating Appellant] and he hasn't seen fit to tell us."
We agree with the Commonwealth that comments about a non-testifying defendant are not always an impermissible comment on the defendant's failure to testify. Id. at 589, citing Ex Parte Loggins, 771 So.2d 1093, 1101 (Ala. 2000). Moreover, "not every comment upon silence is reversible error." Ragland at 588, citing United States v. Robinson, 485 U.S. 25, 33-34, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988).
In Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), which Schook cites as his primary authority for reversal based on the prosecutor's comments, both the trial court and the prosecutor expressly pointed out to the jury that the defendant had not testified, and the prosecutor even went so far as to urge conviction for that reason. Id. at 610-11. The Supreme Court later restricted "[t]he broad dicta in Griffin" that the prosecution cannot comment on an accused's silence. Robinson, 485 U.S. at 33-34. Instead the prosecutor's comments "must be taken in light of the facts of that case." Id. A prosecutor cannot normally use silence as substantive proof of guilt but can respond to a defense argument by referring to the defendant's silence. Id. at 34.
The Commonwealth argues that at the very worst, the prosecutor's isolated comment was an indirect comment on Schook's failure to take the stand. Courts distinguish between direct and indirect comments when it comes to assessing prejudice. The Kentucky Supreme Court has stated "A prosecutor's comment on the failure of a defendant to testify must be manifestly intended to reflect on the accused's silence or of such a character that the jury would naturally and necessarily take it as such to constitute prejudice." Byrd v. Commonwealth, 825 S.W.2d 272, 275 (Ky. 1992) (citations omitted) overruled on other grounds by Shadowen v. Commonwealth, 82 SW.3d 896 (Ky. 2002). This Court has also held that indirect comments "are violative of a defendant's rights only when they are 'manifestly intended to be, or was of such that the jury would necessarily take it to be, a comment upon the defendant's failure to testify, or invited the jury to draw an adverse inference of guilt from that failure.'" Commonwealth v. Robertson, 431 S.W.3d 430, 436 (Ky. App. 2013) (quoting Ragland, supra).
In the instant case, the prosecutor was responding to defense arguments, and we agree that based on the context of the arguments being made at the time, the prosecutor's comments were not manifestly intended to reflect on Schook's failure to testify, but on his credibility and the sense of guilt he felt as he was penning the letter put into evidence. We also agree that the fact that it was a brief and isolated comment, coupled with the trial court's "no adverse inference" instruction minimized any prejudicial impact that comment may have had on the jury. See Ragland, supra at 591. Our review indicates that Schook has not shown a manifest necessity for a mistrial, and the trial court did not abuse its discretion in denying the motion for a mistrial.
Next, Schook argues that counts five and six of the indictment were not criminal acts at the time they occurred, and thus were not cognizable under the law. Furthermore, Schook argues that the jury was instructed on the counts as contained in the indictment, and thus the instructions were also in error. He urges this Court to review those questions of law de novo. See Carver v. Commonwealth, 328 S.W.3d 206, 209 (Ky. App. 2010).
In support of his argument, Schook contends that two of the four counts on which he was convicted were for sodomy charged as oral sex when R.W. was 15 years of age. Sodomy, as it was defined at that time, did not include oral sex. Commonwealth v. Wasson, 842 S.W.2d 487, 491 (Ky. 1993); KRS 510.070, Kentucky Crime Commission/LRC Commentary, 1974. Oral sex with a child at that time was charged under Indecent or Immoral Practices, which was limited to acts with a "child under the age of fifteen years." Schook argues that the Commonwealth, with absolutely no authority, expanded the range that a particular act was a crime based on age and that the jury was instructed on these non-existent crimes as well.
The charge of Indecent or Immoral Practices with Another, KRS 435.105, was limited to acts with "any child under the age of fifteen years." The Sodomy statute in effect at the time of the alleged acts, KRS 436.050, had no age reference at all. Schook argues that the official commentary to the 1974 Revision of the Kentucky Penal Code states that "the inclusion of the concept of statutory sodomy would appear to be an innovation." In addition, the new penal code sodomy statutes, KRS 510.070 through 510.100, "broaden[] former Kentucky law by including oral copulation." Id. "Under former Kentucky law, penetration of the mouth was not sufficient." Id.
Schook argues that statutes criminalizing anal sex between consenting adults, such as Sodomy in the Fourth Degree, KRS 510.100 of the current penal code, and pre-code Sodomy (which had no age constraints), KRS 436.050, have been found to be unconstitutional in Kentucky. Criminalization of such behavior based on age was capped at age 15 under the Indecent and Immoral Acts statute. During the extended colloquy at the bench regarding this issue, the Commonwealth acknowledged the problem and offered to limit the crimes as to R.W. to the ages of 13 and 14. Schook contends that the judge disagreed that the crimes were wrongly charged and stated that the charges would stay as they were. Schook argues that this ruling was in error and that the charges should have been limited to "under the age of fifteen years" as specified in the statute in effect at the time of the alleged acts, KRS 435.105.
The Commonwealth counters that counts five and six of the indictment are criminal acts in violation of former KRS 435.105. That statute stated:
(1) Any person of the age of seventeen years or over who carnally abuses the body, or who indulges in any indecent or immoral practices with the body or organs of any child under the age of fifteen years, or who induces, procures, or permits a child under the age of fifteen years to indulge in immoral sexual or indecent practices with himself or any person shall be guilty of a felony, punishable on conviction thereof by imprisonment in the penitentiary for not less than one year nor more than ten years.
(2) Any person of the age of seventeen years or over who carnally abuses the body, or indulges in any indecent or immoral practices with the body or
organs of any other person of the age of fifteen years or over or who induces, procures, or permits any person over the age of fifteen years or older to indulge in immoral sexual or indecent practices with himself or any other person shall be guilty of a felony, punishable on conviction thereof by imprisonment in the penitentiary for not less than one nor more than five years.Thus, both sections of the statute make "indecent or immoral practices" unlawful. The Commonwealth contends that the phrase includes an oral sexual act, citing Edwards v. Commonwealth, 500 S.W.2d 396, 398 (Ky. 1973) (holding KRS 435.105 was not unconstitutionally vague); see also McDonald v. Commonwealth, 569 S.W.2d 134, 135 (Ky. 1978) (oral sex with wife forming the basis of the conviction for indecent or immoral practices under KRS 435.105).
Citing Edwards, McDonald, and other authorities, the Kentucky Supreme Court more recently held that oral sexual contact was one form of indecent or immoral practices and was criminal under former KRS 435.105. Bennington v. Commonwealth, 348 S.W.3d 613, 619-21 (Ky. 2011). In that case, the grand jury had indicted the appellant for sodomy under the modern statute, KRS 510.070, for conduct occurring before its enactment, and the trial judge did not discover this problem until the penalty phase of the trial. Id. at 617-18. The trial judge then instructed the jury on the penalty range available under former KRS 435.050. Id. at 617.
The Supreme Court held there was "technical error" because the defendant was indicted for sodomy under a statute not enacted until after the defendant's conduct. Id. at 618. Technical error, however, does not necessarily require reversal. Id. at 619. Because the defendant's conduct was criminal under the statute in effect at the time of the conduct (KRS 435.105), the defendant's conviction would be affirmed if the result would have likely been the same if he had been indicted under the correct statute and correct name. Id.
The Commonwealth argues that here, there was the same sort of "technical error" that occurred in Bennington, which resulted in no prejudice in the guilt phase of the trial. The instructions referred to "sodomy," but both instructions five and six required the jury to unanimously find Schook engaged in oral sex with R.W., which was an indecent or immoral practice under KRS 435.105. Instruction five required the jury to find Schook placed his penis into R.W.'s mouth when R.W. was 14 or 15 years old. Instruction six required the jury to find Schook placed his mouth onto R.W.'s penis when R.W. was under the age of 16.
The Commonwealth argues that the instructions allowed the jury to consider a sentence range of two to five years on each of the two counts in question, and the jury recommended a sentence of two years on each count. KRS 435.105(1) set the penalty range as two to five years, but that section required the victim to be "under the age of fifteen." The guilt phase instructions on the two counts required the jury to find R.W. was under the age of sixteen on each of the two counts, but not necessarily under the age of fifteen. Subsection (2) of KRS 435.105, however, contains no age limit for the victim and carries a penalty range of one to five years. See also Harris v. Commonwealth, 469 S.W.2d 68, 69 (Ky. 1971) (defendant convicted of indecent or immoral acts with one aged 15 or older).
The Commonwealth argues that Schook has waived this argument, however, because Schook expressly stated that he had no objection to the sentencing phase instructions. The Kentucky Supreme Court has reaffirmed that there is a difference "between unpreserved errors in the giving or the failure to give an instruction, and unpreserved errors consisting of defects in instructions otherwise appropriately given" and palpable error review is only available in the latter circumstance. Thornton v. Commonwealth, 421 S.W.3d 372, 376 (Ky. 2014); see also Webster v. Commonwealth, 438 S.W.3d 321, 324 (Ky. 2014).
The Commonwealth also argues that Schook's argument that applying KRS 435.105(2) would be unconstitutional under the authority of Commonwealth v. Wasson, 842 S.W.2d 487, 491 (Ky. 1993), has been waived because he failed to notify the Attorney General. We agree that this portion of Schook's argument is waived. Moreover, we also agree with the Commonwealth that Wasson is inapplicable because it applied to consenting adults, and R.W. was not an adult and had not reached the age of consent. In 1964, the legislature lowered the age of majority from 21 to 18 years old, subject to listed exceptions irrelevant to this appeal. KRS 2.015; see also Commonwealth v. Hallahan, 391 S.W.2d 378, 379 (Ky. 1965). During the time period of the charged acts, KRS 435.100 made unlawful any carnal knowledge of either a male or a female under age eighteen. If the child was at least 12 but under 16 years old, the penalty was five to twenty years. KRS 435.100(2). With the advent of Penal Code in 1975, the general age of consent to sexual activity (subject to exceptions) became sixteen years old. KRS 510.020(3)(a); see also Young v. Commonwealth, 968 S.W.2d 670, 672 (Ky. 1998) overruled on other grounds by Matthews v. Commonwealth, 163 S.W.3d 11 (Ky. 2005). In the current case, the instructions for both counts five and six of the indictment required the jury to find R.W. was under the age of sixteen on the date of the offenses. R.W. was not an adult and could not consent to sexual activity with Schook when he was under the age 16.
The Supreme Court recognized this fact in Bennington when it held:
Indeed oral sexual contact with a child was, by itself, sufficient to constitute a crime. The Commonwealth was not required to demonstrate any specific intent (e.g. lustful) to prove a violation of KRS 435.105....[T]his Court concludes that Appellant's behavior was criminalized in 1974 [the offense date]. Specifically, his behavior was criminalized by KRS 435.105.Bennington v. Commonwealth, 348 S.W.3d at 621. At the time of the offenses charged in counts five and six of the indictment, R.W. was incapable of consent. We agree with the Commonwealth and the jury that Schook's acts were criminal then and now. Schook's attenuated arguments to the contrary are without merit.
Based on the foregoing, we affirm the judgment of the Jefferson Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: David A. Lambertus
Tricia F. Lister
Louisville, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky