Harmless error in admitting confidential statements from pre-trial services agency records found in criminal trial: COUCH V. COM. (SC 6/19/2008)

CRIMINAL:  Harmless error in admitting confidential statements from pre-trial services agency records
DATE RENDERED: 6/19/2008

SC affirmed Couch’s conviction and five year sentence for failing to register as a sex offender pursuant to KRS 17.510. KRS 17.510 sets forth the registration system for individuals who have committed sex crimes or crimes against minors, their duties of registration, and the concomitant penalty for failure to register. Pursuant to RCr 4.08, information provided to pretrial services representatives is confidential and cannot be used at trial without the written consent of the defendant, except in certain enumerated exceptions, none of which are applicable here. RCr 4.08 states in pertinent part: "Information supplied by a defendant to a representative of the pretrial services agency during the defendant’s initial interview or subsequent contacts, or information obtained by the pre-trial services agency as a result of the interview or subsequent contacts, shall be deemed confidential and shall not be subject to subpoena or to disclosure without the written consent of the defendant. Clearly, RCr 4.08 was violated here, as a pretrial services intake agent testified concerning confidential information supplied to her without Defendant’s written consent, and none of the exceptions apply. How a violation of RCr 4 .08 should be treated, however, is a matter of first impression in Kentucky. There was other substantial evidence presented at trial that Defendant was living in Kentucky at the time of the arrest. The error in this circumstance did not rise to the level of palpable error and was harmless beyond a reasonable doubt.

TC was properly within its purview to re-open and call such witness pursuant to RCr 9.42 and KRE 614. A trial court is vested with the authority to call and question witnesses pursuant to KRE 614. TC was proper in denying Defendant’s request for a directed verdict, as a finding of guilt was not clearly unreasonable.

Although the testimony of witness violated rule of criminal procedure governing confidentiality of pre-trial services agency records, the SC held that trial court’s error in admitting the testimony was harmless.

By Scott C. Byrd, ed.

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