CRIMINAL – juror strikes (victim of crime), evidence of recent fabrication: Allen v. Commonwealth (COA 3/6/2009)

Allen v. Commonwealth
2009 WL 563526

Opinion by Judge Wine; Senior Judge Buckingham concurred; Chief Judge Combs dissented by separate opinion.

The Court affirmed a judgment and sentence of the circuit court convicting appellant on eleven counts of first-degree sexual abuse and sentencing him to eleven years’ imprisonment.

The Court held that the trial court did not err in refusing to strike for cause a prospective juror who had been a victim of sexual abuse. Based on the entirety of the prospective juror’s responses, it could not be reasonably inferred that he was biased and therefore, RCr 9.36(1) did not require the trial court to excuse him.

The Court also held that admission of letters and testimony regarding the relationship between appellant and the victim were properly admitted under KRE 801A(a)(2) to rebut an implied charge of recent fabrication; the trial court did not abuse its discretion in instructing the jury; the trial court did not err by allowing the prosecutor to ask if appellant had any reason to think another witness would lie so as to question whether any bias might exist on the part of a witness as to appellant; and appellant was not unduly prejudiced by a spontaneous comment from a police detective regarding prior EPO actions filed against him.

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