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Walker v. Commonwealth

Supreme Court of Kentucky

June 14, 2018

DARRIN WALKER APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

          ON APPEAL FROM KENTON CIRCUIT COURT HONORABLE PATRICIA M. SUMME, JUDGE NO. 15-CR-00157-001

          COUNSEL FOR APPELLANT: Erin Hoffman Yang Assistant Public Advocate.

          COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky Mark Barry Assistant Attorney General.

          OPINION

          CUNNINGHAM JUSTICE.

         Appellant, Darrin Walker, sexually assaulted Hannah Morris[1] on numerous occasions from 2005 through 2011. The individual instances of assault involved Appellant touching Hannah's vagina and placing his penis in her mouth. She was seven to eight years old when these events occurred. Appellant also raped Hannah when she was approximately twelve years old. Hannah's grandmother, Lois Jones, was Appellant's girlfriend. At the time of the crimes, Appellant, Lois, and Hannah lived together in a home in Covington, Kentucky and eventually in an apartment in Erlanger, Kentucky.

         Law enforcement officials discovered this information concerning Appellant's sexual assault after Hannah disclosed this information to a therapist. As a result, Hannah was interviewed at the Children's Advocacy Center (CAC) in October, 2014. Appellant was subsequently arrested on eight counts of first-degree sodomy and one count of first-degree rape. Appellant was tried in Kenton Circuit Court. Lois was also charged with one count of an unlawful transaction with a minor.

         The jury convicted Appellant of four counts of first-degree sodomy and one count of first-degree rape. The trial court directed a verdict for the other four counts of first-degree sodomy. The court adopted the jury's recommendation and sentenced Appellant to life imprisonment on each sodomy conviction and twenty years' imprisonment for the rape conviction. His sentences were ordered to be served concurrently. Appellant now appeals his judgment and sentence as a matter of right pursuant to § 1 lO(2)(b) of the Kentucky Constitution.

         Confrontation

         For his first argument, Appellant alleges that his Sixth Amendment right ~- to confront witnesses was violated when the prosecutor, with the court's permission, used a television cart to block him from viewing Hannah during trial. We review for an abuse of discretion. Kurtz v. Commonwealth, 172 S.W.3d 409, 411 (Ky. 2005). An abuse of discretion occurs when the court's decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).

         Hannah was called as the Commonwealth's first witness. She was seventeen years old at the time of trial. She testified for approximately five minutes in full view of Appellant. When the Commonwealth started asking questions concerning the specific details of the sexual assault, Hannah began crying and placed her head on the witness stand. After a brief recess for Hannah to attempt to compose herself, the trial resumed. At that time, the prosecutor approached the bench and informed the judge that she was moving a television cart to block the direct line of sight between Hannah and Appellant. Defense counsel was present and made no objection at that time. After Hannah continued her testimony for approximately one minute, defense counsel objected to the placement of the cart alleging a violation of Appellant's right to confront witnesses under the Sixth Amendment Confrontation Clause.

         Appellant specifically argues that the trial court's actions here violated KRS 421.350. KRS 421.350 only applies to child witnesses who are twelve years old or younger. See Sparkman v. Commonwealth, 250 S.W.3d 667, 669 (Ky. 2008). Hannah was seventeen at the time she testified. Therefore, KRS 421.350 is inapplicable. However, KRS 26A.140 does apply. It provides in pertinent part as follows:

(1) Courts shall implement measures to accommodate the special needs of children which are not unduly burdensome to the rights of the defendant, including, but not limited to:
(d) In appropriate cases, procedures shall be used to shield children from visual contact ...

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