Criminal Law – Sentencing, consecutive, felony sex crimes: Michael Cecil v. Commonwealth of Kentucky (SC 10/29/2009)

Michael Cecil v. Commonwealth of Kentucky
2008-SC-000159-MR October 29, 2009
2008-SC-000369-MR October 29, 2009
Opinion by Justice Cunningham; all sitting.

Cecil was indicted on two counts of first-degree rape and one count of intimidating a participant in the legal process. The first count of rape involved Cecil’s eight year old niece. The rape was witnessed by the victim’s brother, whom Cecil threatened to kill—leading to the intimidation charge. The second victim was Cecil’s 14 year old sister-in-law. Cecil successfully moved to have the trials severed, and he was convicted in the first and entered a conditional guilty plea in the second. The cases were then consolidated on appeal. The Court affirmed Cecil’s conviction in the first case, rejecting his argument that a forensic interviewer’s testimony about her interview with the victim improperly bolstered the victim’s own testimony. The Court held the testimony was probative and admissible to refute suggestions the interviewer had coached the victim. The Court also held that Cecil was not entitled to a jury instruction on first-degree sexual abuse since there had been no evidence presented at trial that penetration had not occurred.

The Court remanded the case for a new sentencing hearing on the second rape conviction. As amended in 2006, KRS 532.110(d) requires that sentences for felony sex crimes be served consecutively. Since Cecil’s crimes were all committed prior to 2004, the Court held that application of the amendment to Cecil was improper under the ex post facto clauses of the state and federal constitutions. Justice Schroder (joined by Justice Noble) concurred in result only, contending that the forensic interviewer’s testimony had improperly bolstered the victim’s testimony—but that the error was harmless.

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