APPEAL FROM HENRY CIRCUIT COURT. HONORABLE DENNIS A. FRITZ, JUDGE. 92-CR-009.
Released for Publication December 19, 1996. Petition for Rehearing Denied December 19, 1996.
Stephens, C.j., Baker, Graves, King, Lambert and Wintersheimer, JJ., concur. Stumbo, J., concurs in part and Dissents in part by separate opinion.
MEMORANDUM OPINION OF THE COURT
This appeal arises from the judgment of conviction of Stella Marie Collins for intentional murder and first-degree criminal abuse, for which she received twenty-one years' imprisonment. Appellant appeals to this Court as a matter of right.
The Commonwealth also appeals to this Court, not in the form of a cross-appeal to Appellant's action, but as two separate appeals eventually consolidated into one and designated to be heard with Appellant's action herein. The appeal by the Commonwealth, which concerns the punishment phase and for which we remand this case for resentencing, will be discussed below, after Disposition of the issues as related to Appellant's appeal, which relates to the guilt/innocence phase.
Appellant was charged with the criminal abuse, between June 6, 1991 and June 24, 1991, and subsequent murder, on or about June 24, 1991, of her stepson, Otis Wayne Collins, Jr. ("Wayne Junior"), who suffered from an advanced stage of Duchenne's Muscular Dystrophy. The disease weakens the large muscles around the hips and shoulders and progresses to other muscles, including the heart and lungs, with an eventual prognosis being death, usually in the mid to late teenage years. At the time of his death, Wayne Junior was one day shy of his twelfth birthday.
In early June of 1991, Wayne Junior was permitted visitation with his father, Otis Wayne Collins, Sr. ("Wayne Senior") and Appellant, and stayed at the Henry County trailer the couple shared with their two-year-old son, Daniel. During this time, Teresa Devore, a friend of the couple, frequently stayed at the Collins' residence and would sometimes lend assistance in the care of Wayne Junior. Devore proved to be a key prosecution witness, as she testified to instances of abuse dealt to Wayne Junior by Appellant. For instance, Devore stated that Appellant would force Wayne Junior to crawl around inside the trailer for two hours at a time, two to three times a day, claiming that such "exercise" had been prescribed by the doctor, and that if he refused to do what she wanted, Appellant would spank the child, sometimes with a fly swatter.
Devore further testified that on June 23, 1991, the day before the child died, Appellant called her to the trailer because Wayne Junior was misbehaving and Appellant needed someone to help her calm down. Devore stated that at the trailer, she observed Appellant take the belt from her bathrobe and wrap it around Wayne Junior's neck, commenting that this would quiet the child. Devore also noted that later that evening, Appellant beat the boy about the head, chest and face, after Wayne Junior had pinched her. Devore testified that after this outburst, there were no more fights that night, and that everyone eventually went to sleep. However, the next morning, Devore was awakened by Appellant, who had noticed that Wayne Junior's breathing had become irregular and he had mucous-type fluids coming from his mouth. Devore stated that she fell back to sleep, but was later again awakened, this time by Wayne Senior, who began screaming upon finding the boy not breathing.
Attempts to revive the child proved to no avail and on June 24, 1991, Wayne Junior was pronounced dead in the Emergency Room of Carrollton Hospital. An autopsy revealed that Wayne Junior suffered a horizontal, linear injury to the carotid artery and airway, along with various abrasions and contusions, and, of course, the advanced Muscular Dystrophy. The cause of death was determined to be traumatic asphyxia.
Although Devore's testimony was valuable to the Commonwealth's case, she was, by her own admission, not wholly an innocent observer to the mistreatment of Wayne Junior. She stated that she too, at times, became short with the boy, sometimes even striking him. Devore also admitted to forcing the child, on one occasion, to drink his own urine, something she had initially blamed on Appellant. It is Appellant's contention, thus, that based upon Devore's character and her penchant for lying, she was not a credible witness and her testimony should not have been given much weight in the determination of Appellant's guilt. Appellant raises five issues on appeal, the first of which discussed herein more specifically involves Devore's role as a witness.
At issue is a diary kept by Devore during her stay at the Collins' residence which Appellant contends should have been admitted at trial in its entirety. According to Appellant, this diary contained, with some degree of particularity, an accounting of the daily activities and attitudes of Devore. In it, Devore made disparaging remarks about Wayne Junior, referring to him as a "hateful brat," and writing, at one point, "He needs to die if he don't want to do his [exercises]." Appellant notes that conspicuously absent from the diary was any mention of abuse of Wayne Junior by Appellant or any statements regarding the child's death. Appellant asserts that while the diary was shown, on cross examination, to have been written totally contemporaneously with Devore's presence with the Collins family between June 6, 1991 and June 24, 1991, the diary was not permitted at trial to be completely and totally allowed for the jury's consideration.
Appellant asserts that as the prosecution questioned Devore extensively regarding her diary, the defense should have been allowed to present the remainder of the diary upon cross-examination of Devore pursuant to the rule of completeness. In sum, Appellant asserts that the Commonwealth's examination of Devore opened the door for the admission of the entire diary, in that once a party elicits part of a statement or writing from a witness, the opposing party may introduce all other portions of that writing which are relevant to the case. Crane v. Commonwealth, Ky., 833 S.W.2d 813 (1992); Tarrance v. Commonwealth, Ky., 521 S.W.2d 521 (1975); Winn v. Commonwealth, Ky., 303 S.W.2d 275 (1957); Meadors v. Commonwealth, 281 Ky. 622, 136 S.W.2d 1066 (1940). Appellant adds that cross-examination of the government's star witness is extremely important in ensuring that the criminal defendant receives a fair trial, and that there is a presumption which favors free cross-examination on possible bias, motive, ability to perceive and remember, and general character for truthfulness. United States v. Phelps, 733 F.2d 1464 (11th Cir. 1984). Appellant also cites to Grigsby v. Commonwealth, 299 Ky. 721, 725, 187 S.W.2d 259, 262 (1945), for the proposition that a witness, by taking the stand, "must submit to ...