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77 S.W.3d 566

Miller v. Commonwealth

Kentucky Supreme Court

Decided June 13, 2002

Kentucky Supreme Court · decided 2002-06-13

Cited by 35 later decisions — most recently August 2018 · most notably Beaty v. Commonwealth (2003), Harp v. Commonwealth (2008)

34 state decisions

Relies on Commonwealth v. Benham · Hellstrom v. Commonwealth · Sargent v. Commonwealth

Good law ✅— No negative treatment on recordhow we know

Decided 2002-06-13

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WINTERSHEIMER,

¶1Justice, dissenting.

¶2I respectfully dissent from the majority opinion because I believe the admission of the letters into evidence was not error; that the testimony concerning the delay in reporting was not error and that the instructions were not erroneous.

¶3It was not reversible error to admit into evidence letters written by the victim. Miller claims that the letters should not have been read to the jury because they constituted inadmissible hearsay. He relies on Hellstrom v. Commonwealth, Ky., 825 S.W.2d 612 (1992), but a careful reading of Hellstrom, supra,indicates that the language relied on by Miller is actually the dissenting opinion in that case. Moreover, Hellstromwas decided before the adoption of the present Kentucky Rules of Evidence and is thus not applicable here.

¶4On direct examination, the victim testified that the letters in question belonged to her. However, these letters were not introduced through her testimony but were read by her mother during the testimony of the mother. The letters contained two statements implicating Miller in the crimes. Subsequently, the Commonwealth recalled the victim to the stand to testify regarding the letters after they had been introduced. Miller had the opportunity to confront and cross examine the witness regarding the letters. The error, if any, was harmless. RCr 9.24.

¶5The trial judge did not commit reversible error in allowing the investigating officer to testify that in 90 percent of the cases she investigated there was a delay in reporting by the victim. At trial the officer testified that this victim waited three years to report the alleged sexual abuse. The officer did not testify as an expert on the subject of “child sexual abuse accommodation syndrome.” She only testified regarding her experiences in sexual abuse cases that she had investigated. See Sargent v. Commonwealth, Ky., 813 S.W.2d 801 (1991).

¶6Finally, the trial judge did not err when he instructed the jury on the 150 counts of *578first-degree rape and 75 counts of first-degree sodomy. The victim testified that for several years Miller would force her to have sex with him almost every weekend and sometimes more often. The victim testified in great detail about the events. A careful review of the record demonstrates that there was sufficient evidence presented to instruct the jury on the numerous counts of rape and sodomy. It was not necessary for the prosecution to elicit testimony from the victim about the specifies of each incident. The trial judge properly denied the motion for a directed verdict under the standards set out in Commonwealth v. Benham, Ky., 816 S.W.2d 186 (1991).

¶7Under all the circumstances, the judgment of conviction should be affirmed.

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