author: COOPER, Justice. GRAVES, Justice,

text:
    Michael Anthony PRICE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 1998-SC-0760-MR.
    Supreme Court of Kentucky.
    Nov. 22, 2000.

      Steven R. Romines, Romines, Weis & Young, Louisville, for appellant.
    A.B. Chandler, III, Attorney General, Frankfort, Courtney J. Hightower, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, for appellee.
   COOPER, Justice.

On the night of October 31, 1996, Appellant Michael Anthony Price shot and killed his wife, Carol Price, then sexually assaulted his eleven-year-old stepdaughter, L.B. A Hart County Grand Jury subsequently returned this indictment, 96-CR-00056, charging Appellant with murder and rape in the first degree. By a separate indictment, 96-CR-00057, Appellant was charged with seven additional counts of rape in the first degree allegedly perpetrated against L.B.

At the trial of this indictment, Appellant claimed that he shot his wife by accident; and though he did sexually abuse L.B., he did not have sexual intercourse with her, thus did not commit the offense of rape in the first degree. KRS 510.040. Rejecting his version of the shooting, but accepting his version of the sexual assault, the jury found Appellant guilty of the murder of Carol Price and of the attempted first-degree rape of L.B. He was sentenced to life in prison for murder and to twenty years for attempted first-degree rape, each sentence to run concurrently with the other. He appeals to this Court as a matter of right, Ky. Const. § 110(2)(b), and asserts five claims of error: (1) the rape and murder charges should have been severed for purposes of trial; (2) his tape recorded confession should have been suppressed; (3) his assertion of his constitutional right to counsel should have been deleted from his confession; (4) L.B. should have been declared incompetent to testify; and (5) he should not have been excluded from the courtroom during L.B.’s testimony.

I. SEVERANCE.

Criminal Rule 6.18 provides:

Two (2) or more offenses may be charged in the same complaint or two (2) or more offenses whether felonies or misdemeanors, or both, may be charged in the same indictment or information in a separate count for each offense, if the offenses are of the same or similar character or are based on the same acts or transactions connected together or constituting parts of a common scheme or plan.
Criminal Rule 9.16 provides:
If it appears that a defendant or the Commonwealth is or will be prejudiced by a ... joinder for trial, the court shall order separate trials of counts ... or provide whatever other relief justice requires ....

The trial judge denied Appellant’s motion for severance, finding that the rape and murder charges were “so closely intertwined that they cannot be severed.” Appellant complains that the denial of his motion to sever allowed the jury to consider evidence of his prior sexual assaults of L.B. while deliberating his guilt or innocence of the unrelated murder of his wife.

Although Appellant did not deny sexually assaulting L.B. on the night of October 31, 1996, he did deny any intent to have sexual intercourse with her. Such intent is the element which elevates sexual abuse in the first degree, a Class D felony, to criminal attempt to commit first-degree rape, a Class B felony. Thus, the evidence of Appellant’s prior sexual assaults of L.B. was admissible to prove intent, as well as motive and plan with respect to the charge of first-degree rape. The admission of this evidence may well have prejudiced Appellant’s ability to defend against the murder charge; but the real issue is whether he was unduly prejudiced, ie., whether the prejudice to him was unnecessary and unreasonable. Romans v. Commonwealth, Ky., 547 S.W.2d 128, 131 (1977). Upon reviewing the evidence and considering the parties’ respective theories concerning the murder charge we conclude that Appellant’s prior and subsequent sexual assaults of L.B. were, indeed, inextricably connected to the death of Carol Price.

L.B. was born on November 30, 1984. Her mother married Appellant in 1990. Soon thereafter, Appellant developed what he, himself, characterized as an uncontrollable sexual obsession with L.B. He admitted sexually assaulting her on four different occasions, the first occurring in September 1991 and the last on October 21, 1996; however, he denied ever having sexual intercourse with her. (L.B. testified that the sexual assaults occurred almost weekly over a five-year period and frequently included sexual intercourse.) After the October 21, 1996 incident, L.B. informed her mother of the sexual assaults and, upon being confronted, Appellant admitted his guilt. The three proceeded together to the local Department for Social Services (DSS) office to “get help.” One of the DSS social workers thought Appellant was suicidal, so arrangements were made to admit him to the Bowling Green Medical Center for inpatient treatment of depression.

Appellant was discharged from the hospital on October 28, 1996, at which time he learned that the DSS workers had reported his sexual offenses to law enforcement authorities. He then learned that he could not return to his home and family; that if his wife allowed him to return, she would lose custody of L.B.; and that if arrested, he would be terminated from his employment. On October 29th, Kentucky State Police Detective Steve Fitts contacted Appellant and requested that he come to his office for an interview. Appellant agreed to meet with Fitts at 1:00 p.m. on October 30th. However, instead of keeping that appointment, Appellant proceeded by bicycle to a shed located behind his residence. He took with him three handguns, a Colt .45, a Ruger .22, and a Taurus 9-mm.

Appellant hid in the shed from about noon on October 80th until about 10:30 p.m. on October 31st, observing the activities of his wife and stepdaughter and occasionally sneaking into the house for food. He wrote a suicide note in which he blamed his predicament on the social workers who had reported his crimes to the police. At approximately 10:30 p.m. on October 31st, Appellant, armed with the Colt .45 and the Ruger .22, entered the living room of his home. He testified that he intended to commit suicide (though he never explained why he needed two firearms to kill only himself). Carol Price was asleep on the sofa. Appellant testified that he knelt down beside her, placed the Ruger .22 to his temple, and cocked it; whereupon Carol suddenly awoke and grabbed his arm, which caused the weapon to fire and accidentally discharge a bullet into her left temple. Appellant then entered the adjacent bedroom where L.B. was sleeping. Appellant awakened L.B., told her that he had tied up her mother in the living room, and that he would kill her (Carol) if L.B. did not have sex with him. He forced L.B. to the floor, removed her clothing and his, then physically assaulted and sexually abused her. He claims that he then “woke up” and allowed L.B. to leave the house and go to a nearby residence to call the police.

Thus, Appellant’s theory of the case was that he was so depressed over the consequences of his prior sexual abuse of L.B. that he was attempting to kill himself when he accidentally shot and killed his wife. The Commonwealth’s theory was that Appellant was so sexually obsessed with L.B. that he killed his wife intentionally to get rid of her. Either way, the evidence of Appellant’s prior and subsequent sexual abuse of L.B. was so inextricably connected with the issues concerning his motive and intent to kill his wife that the evidence would have been admissible even in a separate trial for murder. KRE 404(b)(1) and (2). That is a significant factor in determining whether severance is required. Spencer v. Commonwealth, Ky., 554 S.W.2d 355 (1977); cf. Rearick v. Commonwealth, Ky., 858 S.W.2d 185 (1993). Since the same evidence would have been admissible at separate trials, Appellant was not unduly prejudiced by the denial of his motion to sever the rape and murder charges. Schambon v. Commonwealth, Ky., 821 S.W.2d 804, 808-09 (1991).

II. CONFESSION: VOLUNTARINESS.

When the police arrived at his residence, Appellant placed the barrel of the Colt .45 against his head as if intending to take his own life. He did not pull the trigger. He was then placed under arrest, handcuffed by an officer of the Horse Cave Police Department, and transported to the Hart County Sheriffs office where he was interrogated by Detective Fitts and Detective Jeff Scruggs of the Kentucky State Police. After being read his Miranda rights, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Appellant admitted that he shot his wife (but omitted to claim it was by accident). He also admitted that he sexually assaulted L.B. and that he had been sexually abusing her for five years, but denied having sexual intercourse with her. He then invoked his right to counsel, whereupon the interrogation ceased. The entire interview was recorded on an audio tape. The first five minutes of the tape consists only of the futile efforts of the detectives to remove the handcuffs from Appellant’s wrists and Appellant’s occasional utterance of expressions of pain as they were doing so.

Appellant asserts that his confession should have been suppressed because the “totality of [the] circumstances” indicates that it was involuntary. Mills v. Commonwealth, Ky., 996 S.W.2d 473, 481 (1999), cert. denied, — U.S. -, 120 S.Ct. 1182, 145 L.Ed.2d 1088 (2000). As factual support for this assertion, he cites his suicidal mental state and the physical pain caused by the handcuffs. He makes no claim of any abuse, threats or intimidation perpetrated against him by the detectives. The trial judge held an in-chambers hearing at which Appellant was present but did not testify. After listening to the tape recording of the confession, the trial judge found that it had been voluntarily given.

“[C]oercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment,” Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 522, 93 L.Ed.2d 473 (1986); and although a defendant’s mental condition is a significant factor to consider in determining vol-untariness, “this fact does not justify a conclusion that a defendant’s mental condition, by itself and apart from its relation to official coercion, should ever dispose of the inquiry into constitutional ‘voluntariness.’ ” Id. at 164, 107 S.Ct. at 520. While the audio tape indicates that Appellant endured some pain while the detectives were manipulating his arms and wrists in their attempts to remove the handcuffs, there is no indication that he was enduring any pain during the actual interrogation. More significantly, Appellant never claimed that his confession was induced by pain caused merely by being handcuffed. Excluding the five minutes consumed by the detectives’ efforts to remove the handcuffs and the one minute consumed in advising Appellant of his Miranda rights, the entire interrogation lasted less than eight minutes. Absent any indication of coercion by the detectives or complaints of pain by Appellant, the trial court’s finding that the confession was voluntarily given is supported by substantial evidence and, thus, is conclusive. RCr 9.78; Springer v. Commonwealth, Ky., 998 S.W.2d 439, 446 (1999).

III. CONFESSION: INVOCATION OF RIGHT TO COUNSEL.

The interrogation concluded as follows:
Appellant: Could I have a court appointed lawyer? I don’t have no money.
Scruggs: You can have one appointed for you, yeah.
Appellant: I need a lawyer.
Scruggs: You need a lawyer?
Appellant: I don’t have no money.
Scruggs: Okay. Well, we are going to stop talking to you now since you asked for a lawyer, okay? The time is 0400 hours and it’s on the 1st day of November, 1996, and our interview took place at the Hart County Sheriffs Office in Munfordville, Kentucky, and I am Detective Jeff Scruggs and Detective Steve Fitts sitting here and your name is Mike Price, right?
Appellant: Right.
Scruggs: Okay. That ends the interview.

The Commonwealth played the tape recording of the interrogation for the jury. It had been agreed that the tape would be stopped at a point just prior to Appellant’s request for counsel and, indeed, the tape was stopped at that point. However, when court and counsel realized that each juror had been furnished with a typed transcript of the interrogation from which the colloquy in question had not been deleted, it was agreed to play the remainder of the tape to its conclusion.

Appellant asserts that it was prejudicial error to inform the jury that he had invoked his right to counsel. While it is held more often than not to be prejudicial error to inform a jury that, upon arrest, a defendant invoked his right to remain silent, Miranda v. Arizona, supra, at 468 n. 37, 86 S.Ct. at 1624-25 n. 37, Doyle v.. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), Romans v. Commonwealth, supra, at 130, the same conclusion is not required with respect to a defendant’s invocation of his right to counsel. E.g., Blankenship v. Commonwealth, Ky. App., 740 S.W.2d 164, 167 (1987). The prejudice from informing a jury of a defendant’s assertion of his right to remain silent arises from the implication that the defendant refused to talk to the police because of a consciousness of his own guilt, ie., an innocent person would profess innocence. However, even an innocent person is likely to want to consult an attorney if accused of a crime which he did not commit. Thus, the issue is more susceptible to harmless error analysis than is a comment on silence. RCr 9.24; e.g., Bentley v. Scully, 41 F.3d 818 (2d Cir.1994), cert. denied, 516 U.S. 1152, 116 S.Ct. 1029, 134 L.Ed.2d 107 (1996); United States v. Matthews, 20 F.3d 538, 551-52 (2d Cir.1994).

Here, Appellant never refused to talk to the police. The detectives discontinued the interrogation, and the jury was not informed that they were required to do so because Appellant had invoked his right to counsel, per Miranda, supra, at 444-45, 473-74, 86 S.Ct. at 1612, 1627-28. But most importantly, by the time Appellant invoked his right to counsel, he had already admitted that he had shot his wife and sexually assaulted his stepdaughter. Thus, any inference of guilt which might have arisen from his invocation of his right to counsel was harmless beyond a reasonable doubt.

IY. COMPETENCY OF WITNESS.

KRE 601(b) states:
Minimal qualifications. A person is disqualified to testify as a witness if the trial court determines that he:
(1) Lacked the capacity to perceive accurately the matters about which he proposes to testify;
(2) Lacks the capacity to recollect facts;
(3) Lacks the capacity to express himself so as to be understood, either directly or through an interpreter; or
(4) Lacks the capacity to understand the obligation of a witness to tell the truth.

Appellant claims that L.B. was incompetent to testify against him because inconsistencies in her testimony with respect to, e.g., the number of times she was assaulted by Appellant, whether penetration occurred, and the time frame in which the sexual assaults occurred, proved that she was unable to accurately recollect the facts. However, the Commentary to KRE 601 explains:

This provision serves to establish a minimum standard of testimonial competency for witnesses. It is designed to empower the trial judge to exclude the testimony of a witness who is so mentally incapacitated or so mentally immature that no testimony of probative worth could be expected from the witness. It should be applied grudgingly, only against the “incapable” witness and never against the “incredible” witness, since the triers of fact are particularly adept at judging credibility.

Commentary to KRE 601, Evidence Rules Study Committee, Final Draft (1989).

KRE 601 recognizes a presumption of competency and permits disqualification of a witness only upon proof of incompetency. L.B. was thirteen years old when she testified at Appellant’s trial. The trial judge interviewed her on the record in open court three days before trial and entered a written order finding that she was competent to testify. Her testimony at trial was lucid and unemotional. Though she could not recollect all of the specific details surrounding her abuse by Appellant, that affected only the credibility of her testimony, not her competency to testify. Cf. Hendricks v. Commonwealth, Ky., 550 S.W.2d 551 (1977).

Y. EXCLUSION OF DEFENDANT FROM COURTROOM.

During L.B.’s testimony, Appellant was excluded from the courtroom and required to view the proceedings on a monitor in an anteroom, where he could not be in constant audio contact with his attorney. He was given a legal pad and a pen with which to make notes, and was advised that if he wished to consult directly with his attorney he should notify the bailiff who would notify the judge who would stop the trial and permit Appellant’s attorney to leave the courtroom in order to consult with him in the anteroom. This procedure was purportedly employed pursuant to KRS 421.350(2), which provides:

The court may, on the motion of the attorney for any party and upon a finding of compelling need, order that the testimony of the child be taken in a room other than the courtroom and be televised by closed circuit equipment in the courtroom to be viewed by the court and the finder of fact in the proceeding. Only the attorneys for the defendant and for the state, persons necessary to operate the equipment, and any person whose presence the court finds would contribute to the welfare and well-being of the child may be present in the room with the child during his testimony. Only the attorneys may question the child. The persons operating the equipment shall be confined to an adjacent room or behind a screen or mirror that permits them to see and hear the child during his testimony, but does not permit the child to see or hear them. The court shall permit the defendant to observe and hear the testimony of the child in person, but shall ensure that the child cannot hear or see the defendant. (Emphasis added.)

The emphasized language was added by the 1996 General Assembly, apparently in response to case law discussed infra. 1996 Ky.Acts ch. 178 § 1. The statutory provision that the child testify from outside the courtroom and that the defendant remain in the courtroom protects the defendant’s right to be present “at every critical stage of the trial.” RCr 8.28. This right is protected not only by RCr 8.28, but also by the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and Section 11 of the Constitution of Kentucky. Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353 (1970) (“[o]ne of the most basic rights guaranteed by the Confrontation Clause is the accused’s right to be present in the courtroom at every stage of his trial”); Snyder v. Massachusetts, 291 U.S. 97, 107-08, 54 S.Ct. 330, 333, 78 L.Ed. 674 (1934), overruled on other grounds, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), (“the presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence”); Carver v. Commonwealth, Ky., 256 S.W.2d 375, 377 (1953) (“[t]his court has long recognized the importance of the constitutional right of the accused to be present with his counsel at all stages of a trial”).

The bill of rights declares “That in all criminal prosecutions the accused hath the right to be heard by himself and counsel.” The right ... necessarily embraces the right to be present himself ... at every step in the progress of the trial, and to deprive him of this right is a violation of that provision of the fundamental law just quoted.
The presence of the accused is not a mere form. It is of the very essence of a criminal trial not only that the accused shall be brought face to face with the witnesses against him, but also with his triers. He has a right to be present not only that he may see that nothing is done or omitted which tends to his prejudice, but to have the benefit of whatever influence his presence may exert in his favor.

Temple v. Commonwealth, 77 Ky. (14 Bush) 769, 770-71 (1879).

In Commonwealth v. Willis, Ky., 716 S.W.2d 224 (1986), we held that KRS 421.350(2) [then (3) ] did not violate a defendant’s constitutional right to confront the witnesses against him, U.S. Const, amend. VI, Ky. Const. § 11, provided that: (1) the Commonwealth prove that the use of this procedure is reasonably necessary to obtain the testimony of the child (in Willis, the child refused to testify in the presence of the defendant); and (2) the Commonwealth provide the technical details whereby (a) the testimony will be taken with the child screened from the sight and hearing of the defendant while, at the same time, (b) the defendant can view and hear the child and maintain continuous audio contact with his defense counsel. Id. at 227, 231, and at 232 (Leib-son, J., concurring). The concurring opinion (three justices) noted that the use of the statutory procedure was conditioned inter alia upon “technology [being] available and utilized so that any impairment of the rights of the accused to confront the witness is technical and insubstantial.” Id. at 232 (Leibson, J., concurring). Appellant also claims that the denial of continuous audio contact with his counsel violated his Sixth Amendment right to effective assistance of counsel.

In Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), the United States Supreme Court considered whether a Maryland statute with similar provisions violated the Confrontation Clause of the Sixth Amendment. However, that statute contained a specific requirement that the defendant remain in electronic communication with his counsel during the proceeding. Id. at 842, 110 S.Ct. at 3161; Md.Code Ann., Cts. & Jud. Proc. § 9-102(b)(3). Thus, the Court was required to focus only upon the issue of necessity sufficient to justify the impairment of a defendant’s confrontation rights.

The requisite finding of necessity must of course be a ease-specific one: The trial court must hear evidence and determine whether use of the one-way closed circuit television procedure is necessary to protect the welfare of the particular child witness who seeks to testify.... The trial court must also find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant. ... Denial of face-to-face confrontation is not needed to further the state interest in protecting the child witness from trauma unless it is the presence of the defendant that causes the trauma. In other words, if the state interest were merely the interest in protecting child witnesses from courtroom trauma generally, denial of face-to-face confrontation would be unnecessary because the child could be permitted to testify in less intimidating surroundings, albeit with the defendant present. Finally, the trial court must find that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis, i.e., more than “mere nervousness or excitement or some reluctance to testify.”

Maryland v. Craig, supra, at 855-56, 110 S.Ct. at 3169 (citations omitted).

In George v. Commonwealth, Ky., 885 S.W.2d 938 (1994), the issue was whether the statute applied to a child witness who was not a child victim. We held that the version of the statute in effect at that time did not, but noted that even if it did, the Commonwealth had not shown a compelling need to justify utilization of the procedure. The only evidence on this issue was the testimony of a social worker that the child witness could testify in the presence of her father, the defendant, but that she would be more traumatized than the average child by doing so.

It is apparent that the trial court failed to use the standard of a “compelling need” which is necessary to use TV testimony as the alternative to obtaining truthful testimony from the child. The Kentucky statute does not provide a blanket process for taking the testimony of every child witness by TV simply because testifying may be stressful.

Id. at 941.

Three errors occurred with respect to the application of KRS 421.350(2) in this case:

(1) Appellant was excluded from the courtroom whereas the statute provides that the defendant will remain in the courtroom and the child witness will testify from another room. We would not have reversed this case on this issue alone, since the defendant, though technically absent during a critical stage of the trial, was able to view the courtroom proceedings by video monitor. Nevertheless, the statute creates a narrow exception to a constitutional right, thus, its provisions should be scrupulously followed.

(2) Appellant was not in continuous audio contact with his defense counsel. No argument is made that the technology to accomplish this purpose is unavailable. If that argument were made, the response would have to be that the statutory procedure is unavailable until and unless the technology is available. (Apparently, it is available in Maryland. Maryland v. Craig, supra, at 842, 110 S.Ct. at 3161.)

(3) No hearing was held nor finding made with respect to whether there was a compelling need to employ the procedure in this particular case. The record does not contain a motion by the Commonwealth to permit L.B. to testify outside the presence of Appellant. The procedure described in KRS 421.350(2) may not be utilized absent proof and a specific finding of a compelling need therefor.

Noncompliance with these requirements in this case requires the conclusion that L.B.’s testimony violated Appellant’s constitutional right of confrontation and his right to be present at every critical stage of his trial. However, L.B.’s testimony pertained only to the charge of attempted rape. She gave no testimony pertaining to the murder charge other than that she saw her mother’s body on the sofa as she was running out of the house. She did not claim that she saw or heard Appellant kill her mother or that Appellant told her that he had done so. Thus, the erroneous exclusion of Appellant from the courtroom during L.B.’s testimony does not require reversal of Appellant’s murder conviction, but only of his conviction of attempted first-degree rape.

Accordingly, the judgment of the Hart Circuit Court is affirmed with respect to Appellant’s conviction and sentence for murder, but reversed with respect to his conviction and sentence for attempted first-degree rape; and this ease is remanded to the Hart Circuit Court for a new trial on the latter charge.

JOHNSTONE, KELLER and STUMBO, JJ„ concur.

GRAVES, J., dissents by separate opinion, with LAMBERT, C.J., and WINTERSHEIMER, J., joining that dissent.

GRAVES, Justice,

dissenting.

Respectfully, I dissent.

KRS 421.350 authorizes a procedure to allow the testimony of a child witness to be taken in a room other than the courtroom and be televised by closed circuit equipment in the courtroom. This procedure was approved in Commonwealth v. Willis, Ky., 716 S.W.2d 224 (1986). In Danner v. Commonwealth, Ky., 963 S.W.2d 632, 634 (1998), we held that in deciding whether to allow a child victim of illegal sexual activity to testify through closed circuit television or taped video, “the trial court must have a wide discretion to consider the age and demeanor of the child witness, the nature of offense, and the likely impact of testimony in court or facing the defendant.” (quoting Willis, supra.)

Here, the trial court employed a hybrid of KRS 421.350. In chambers, the trial court stated that L.P. was twelve (12) years old at the time of the incident, and that she would be permitted to testify in front of the jury with Appellant in the judge’s chambers, where he could watch and hear the proceedings on the monitor with unlimited access to his attorney. This method was favorable to Appellant because the child actually had to testify in front of the jury. Appellant was able to write comments on a legal pad and give notes to his attorney — in other words, he was able to freely consult his attorney. The trial court admonished the jury that the lack of Appellant’s presence in the courtroom was mandated by statute and that no inference of guilt should be made. Because of Appellant’s multiple crimes against L.P. over a prolonged period of time, there was a compelling need that L.P. not face Appellant. Appellant heard all of the testimony and had unlimited consultation with his attorney for the purpose of cross-examination. Appellant fully cross-examined L.P. and was not denied his right of confrontation. Under the totality of these circumstances, there was no abuse of discretion in using a hybrid method which protected Appellant’s constitutional rights.

I would affirm the trial court’s judgment of conviction for rape.

LAMBERT, C.J., and WINTERSHEIMER, J., join in this dissent.

      . KRS510.110.

      . KRS 510.040; KRS 506.020(1).

      . KRS 506.010(4).

      . KRE 404(b)(1); Roberson v. Commonwealth, Ky., 913 S.W.2d 310, 315-16 (1994); Messmear v. Commonwealth, Ky., 472 S.W.2d 682, 684 (1971) ("evidence of other sex activities of the same nature committed with and upon the same person is competent’’); Keeton v. Commonwealth, Ky., 459 S.W.2d 612 (1970); see generally R. Lawson, The Kentucky Evidence Law Handbook § 2.25, at 105-06 (3d ed. Michie 1993) for a discussion of the admissibility of evidence of other sexual crimes if perpetrated against the same victim as opposed to a different victim.

      . The statute was subsequently amended to extend its application to all child witnesses of sexual abuse. 1996 Ky.Acts ch. 178 § 1.


source: Caselaw Access Project

author: /s/ Joseph E. Lambert Chief Justice

license: Public Domain

text:
    William KLAPHEKE II, Movant, v. KENTUCKY BAR ASSOCIATION, Respondent.
    No. 2000-SC-0896-KB.
    Supreme Court of Kentucky.
    Nov. 22, 2000.
   OPINION AND ORDER

Movant, William Klapheke, II, of Glasgow, Kentucky, was admitted to the practice of law in April 1973. He now moves for the termination of disciplinary proceedings against him and for an order suspending him from the practice of law for a period of three (3) years. The KBA has no objection to the motion.

Movant acknowledges five (5) pending disciplinary matters. In KBA 7343, Mov-ant represented Robert Bierman in a personal injury action. Movant failed to file pleadings and documents in a timely manner causing the statute of limitations to expire on Mr. Bierman’s claims for no-fault insurance and workers’ compensation benefits, in violation of SCR 3.130-1.3. Movant also falsely advised Mr. Bierman of the status of his ease by leading Mr. Bierman to believe that he had taken action on his behalf in the matter, in violation of SCR 3.130-8.3(c). See also, Bierman v. Klapheke, Ky., 967 S.W.2d 16 (1998). Mr. Bierman filed a malpractice claim and was subsequently awarded $59,000 in compensatory damages and $50,000 in punitive damages.

In KBA 7363, Movant represented Judy Young in a personal injury action. Movant failed to respond to opposing counsel’s motion for a judgment on the pleadings or summary judgment, resulting in a dismissal of Ms. Young’s case, in violation of SCR 3.130-1.1 and SCR 3.130-1.3. Thereafter, Movant failed to inform Ms. Young concerning the dismissal of the action and instead led her to believe the case was still proceeding, in violation of SCR 3.130-8.3(c).

In KBA 7506, Movant represented Shirley Wilson on a no-fault claim arising out of an automobile accident. Movant failed to file Ms. Wilson’s claim and failed to notify Kentucky Farm Bureau that Ms. Wilson’s no-fault insurance coverage should be reserved for lost wages and replacement of services claims, in violation of SCR 3.130-1.3. Movant also falsely advised Ms. Wilson that the claims had been filed, in violation of SCR 3.130-8.3(c). Ms. Wilson filed a malpractice action against Movant and was awarded $3,400 in compensatory damages and $10,000 in punitive damages.

In KBA 7741, Movant represented Rachel Kidd in a divorce action. Movant indicated to Ms. Kidd that he would appeal the trial court’s order requiring her to pay $25,814 to her ex-husband. Movant failed to file the necessary pleadings to perfect the appeal, in violation of SCR 3.130-1.3. Moreover, in response to opposing counsel’s motions to hold Ms. Kidd in contempt for failure to pay, Movant misrepresented the status of Ms. Kidd’s appeal to the trial court on several occasions and later informed the trial court that Ms. Kidd was making arrangements to satisfy the judgments, in violation of SCR 3.130-3.3(a)(l) and SCR 3.130-8.3(e). During this time period, Movant led Ms. Kidd to believe her appeal was proceeding, and failed to inform her of the contempt proceedings which almost resulted in the sale of her home, in violation of SCR 3.130-1.4(a) and (b).

In KBA 7121, Movant was charged with violation of SCR 3.130-1.3 and SCR 3.130-1.4(a) and (b) arising from his representation of Daniel Davis. Movant denies these charges.

Movant requests the termination of the disciplinary proceedings against him and moves this Court for an order suspending him from the practice of law for three (3) years. Movant further agrees that as a condition to any application for reinstatement, he will enter into a contract with the Lawyers Helping Lawyers Committee (LHL) for a period of three years. Mov-ant states he will cooperate with LHL and will waive any confidentiality for purposes of providing progress information to the Character and Fitness Committee.

Therefore, Movant’s motion is granted. It is hereby ordered that:

1. Movant, William Klapheke, II, shall be suspended from the practice of law in this Commonwealth for a period of three (3) years, commencing from the date of entry of this Opinion and Order. The suspension shall continue until such time as he is reinstated to the practice of law by order of this Court pursuant to SCR 3.510.

2. In accordance with SCR 3.450, Mov-ant is directed to pay all costs associated with the disciplinary proceedings against him, said sum being $4,388.81, and for which execution may issue from this Court upon finality of this Opinion and Order.

3. Pursuant to SCR 3.390, Movant shall within ten (10) days of the entry of this order notify all clients of his inability to represent them and furnish copies of said letters of notice to the Director of the Kentucky Bar Association. He shall also provide such notification to all courts in which he has matters pending.

4. In accordance with SCR 3.390, Mov-ant shall immediately disburse all funds held for clients and third persons in his escrow account and shall provide proof of said disbursements to the Director of the Kentucky Bar Association.

All concur.

ENTERED: November 22, 2000.

/s/ Joseph E. Lambert Chief Justice


author: JOHNSTONE, Justice. STUMBO, Justice,

text:
    Mark Alan GOSSER, Appellant/Cross-Appellee, v. COMMONWEALTH of Kentucky, Appellee/Cross-Appellant.
    Nos. 1997-SC-0946-MR, 1997-SC-0947-MR.
    Supreme Court of Kentucky.
    Nov. 22, 2000.

      Mark J. Stanziano, Kathryn G. Wood, Law Office of Mark J. Stanziano, Somerset, for appellant/cross-appellee.
    A.B. Chandler III, Attorney General of Kentucky, Perry T. Ryan, Gregory A. Ous-ley, Assistant Attorneys General, Criminal Appellate Division, Office of the Attorney General, Frankfort, for appellee/cross-ap-pellant.
   JOHNSTONE, Justice.

Appellant, Mark Alan Gosser, was convicted of wanton murder in the Pulaski Circuit Court, and was sentenced to twenty years’ imprisonment. He appeals to this Court as a matter of right. We affirm.

Gosser’s conviction stems from the events of February 9-10, 1996, when a party was held at a home in Somerset, Kentucky. Witnesses testified that Gosser went to the party to find Danny Abbott, with whom Gosser had a dispute a few days before. Abbott blamed Gosser for slashing his tires, and Gosser thought Abbott had set him up to-be arrested.

At some point after Gosser arrived at the party, he saw Abbott and the two stepped outside to settle their dispute. They began to argue, and a crowd gathered in anticipation of a fight. Shortly thereafter, Christopher Ryan Parmalee, a friend of Gosser, came outside, and he and Abbott began to fight. Gosser briefly entered the fight, then stepped back, pulled out a gun, and fired it. Although several witnesses testified that Gosser fired the gun while it was pointed at Abbott, Gosser maintained that the positioning of the participants in the fight made it impossible for the gun to be pointed at Abbott, and that he fired the gun only to break up the fight between Abbott and Parmalee.

In any event, the shot fired by Gosser hit Britt Bell in the center of his chest, and Bell died approximately seven hours after arriving at the hospital. Gosser was tried and convicted of wanton murder, and was sentenced to twenty years’ imprisonment. This appeal followed.

On appeal, Gosser presents three issues: (1) whether the trial court erred in admitting into evidence photographs and computer-generated models of the crime scene that were prepared by the police; (2) whether the trial court erred in denying Gosser a continuance; and (3) whether the trial court erred in fading to grant a mistrial because the Commonwealth made a key witness unavailable to testify. For the reasons set forth below, we affirm Gosser’s conviction.

On cross-appeal, the Commonwealth presents one issue: whether the trial court erred in excluding statements made by Britt Bell after he was shot, because those statements constituted a dying declaration. The Commonwealth has requested review of this issue only if Gosser’s conviction is reversed and remanded for a new trial. Because we affirm Gosser’s conviction, we will not consider the issue presented on cross-appeal.

I. ADMISSION OF POLICE-CREATED PHOTOGRAPHS AND COMPUTER DIAGRAMS

Gosser argues that the trial court erred by admitting Commonwealth’s Exhibits 7, 8, 9 and 10. Exhibits 7 and 8 are photographs of the crime scene in which the police had planted colored flags and had made spray-painted marks to show the locations of individuals and evidence at the time of the shooting. Exhibit 9 is a two-dimensional computer-generated diagram of the crime scene. Exhibit 10 is a three-dimensional computer-generated diagram of the crime scene.

Exhibits 7 and 8, the Photographs

These exhibits were admitted through the Commonwealth’s first witness, Detective Rice. When the Commonwealth sought to admit Exhibits 7 and 8, Gosser objected on two separate grounds: (1) that the photos did not fairly and accurately depict the area photographed on the night of the shooting; and (2) that the photographs were “composite” diagrams for which the Commonwealth had not laid the proper foundation for their admission. The trial court overruled the objections and admitted the photographs subject to Gosser’s right to cross-examine Detective Rice and other witnesses on how the information was obtained. On direct examination, Detective Rice identified who or what each colored flag and spray-painted mark in Exhibit 7 represented and explained how the reconstruction of the crime scene represented in the photograph was prepared in the following manner:

Prosecutor: OK. Now what did you rely upon in determining the positions of the various witnesses to the shooting?
Rice: The witnesses] statements....
Prosecutor: OK. Did you take any witness with you when you did the reconstruction of the actual shooting itself?
Rice: Yes. We had one witness come out ... Jimmy Dan Carroll.
Prosecutor: And with his assistance!,] and relying upon the [other] witnesses’ statements that had been taken by the police department!,] were you able to reconstruct where the witnesses were standing at the time of the shooting?
Rice: Yes.
Prosecutor: OK. And how did you do that — do that reconstruction?
Rice: We just had a working knowledge ourselves through our witnesses as to where they were positioned and we had Jimmy Dan Carroll pointing out to us where different witnesses were standing, where those involved, the three individuals were at, and we placed orange flags, repositioning of these individuals.
Prosecutor: OK. Now, after you placed the orange flags[,] did you take some photographs of that?
Rice: Yes. Lieutenant Gary Jones took photographs.
Prosecutor: OK. But you were out there.
Rice: Yes, sir. I was videoing.

Detective Rice then testified that the photograph fairly and accurately depicted the reconstruction as it appeared when photographed. Detective Rice’s testimony concerning Commonwealth’s Exhibit 8, the aerial photograph, was similar.

It was improper for the Commonwealth to introduce Exhibits 7 and 8 through Detective Rice. While the exhibits ai’e physical photographs, they were used by the Commonwealth as diagrams of the crime scene to show the locations of various witnesses, the defendant, the victim, and the murder weapon. Detective Rice, who was not present at the crime at the time of the shooting, did not have personal knowledge of the location of the persons and the items represented in the photographs at the time of the shooting. His testimony to that effect was based on hearsay.

Nor was Detective Rice’s testimony necessary to show how the crime scene reconstruction was prepared. The introduction of a map or diagram made prior to trial is in “no wise different from one drawn by a witness in the presence of the jury.” Cook v. Commonwealth, Ky., 232 Ky., 613, 24 S.W.2d 269, 271 (1930). In State v. Furlough, 797 S.W.2d 631 (Tenn.Crim.App.1990), the defendant objected on hearsay grounds to the introduction of a diagram of the crime scene. Id. at 646. The diagram had been prepared by the investigating officer, who did not testify. Id. The Furlough court determined that the diagram, while based on hearsay, should not be excluded as such, stating:

As long as the witness has personal knowledge of the subject matter and the diagram is accurate, drawings drafted out of court are admissible despite the hearsay rule. The in-court authentication of the drawing is the assertion permitting cross-examination of its accuracy. That is sufficient to satisfy the hearsay objection.

Id. at 647 (internal citations omitted). The fact that the diagram in this case was created in a photograph, rather in a drawing, is of no consequence.

In the case at bar, the Commonwealth should have authenticated the crime scene reconstruction photographs/diagrams through the individual witnesses who were present at the time of the shooting. These witnesses had personal knowledge of the subject matter of both the physical crime scene and the accuracy of the placement of the identifying orange flags. Once the photographs/diagrams had been properly authenticated, whether to formally admit them as an exhibit would have been left to the sound discretion of the trial judge. See Wilson v. Commonwealth, Ky., 551 S.W.2d 569, 571 (1977).

Exhibits 9 and 10, the Computer Diagrams

The use of computer-generated graphics and animation as evidence is a growing trend in the Commonwealth, as it is in courtrooms all across the land. Heretofore, this Court has not addressed any of the many issues concerning the admission of this type of evidence. However, there is a growing body of case law and law review articles concerning these issues.

Computer generated visual evidence (CGVE) is usually divided into two broad categories: (1) demonstrative; and (2) substantive. Demonstrative CGVE usually consists of still images or animation which merely illustrates a witness’s testimony. Substantive CGVE usually consists of computer simulations or recreations, which are prepared by experts and which are based on mathematical models in order to recreate or reconstruct an incident or event. In turn, the standard of admissibility depends on how the CGVE is categorized. This situation is much like our approach to the introduction of photographs. As explained in Litton v. Commonwealth, Ky., 597 S.W.2d 616 (1980):

Photographs are most commonly admitted into evidence as demonstrative evidence on the theory either that they are merely a graphic portrayal of oral testimony or that a qualified witness adopts the photograph as a substitute for words. See McCormick on Evidence, Sec. 214 (1972); 3 Wigmore on Evidence, Sec. 790 (Chadbourn rev. 1970). When a photograph is used as demonstrative evidence, the witness need not be the photographer, nor must he have any personal knowledge of the time, method, or mechanics of the taking of the photographs. The witness is only required to state whether the photograph fairly and accurately depicts the scene about which he is testifying....
Photographs can be admitted as real evidence in a proper case. As stated in Wigmore:
“With later advancements in the art of photography, however, and with increasing awareness of the manifold evidentiary uses of the products of the art, it has become clear that an additional theory of admissibility of photographs is entitled to recognition. Thus, even though no human is capable of swearing that he personally perceived what a photograph purports to portray (so that it is not possible to satisfy the requirements of the ‘pictorial testimony’ rationale) there may nevertheless be good warrant for receiving the photograph in evidence. Given an adequate foundation assuring the accuracy of the process producing it, the photograph should then be received as a so-called silent witness or as a witness which ‘speaks for itself.’ “

Id. at 618-19.

Litton was decided before the adoption of the Kentucky Rules of Evidence. While its approach to admissibility is entirely consistent with the KRE, it is not necessary to classify the photographs as “demonstrative” or “real” in order to determine their admissibility under the KRE. Likewise, while classifying a particular type or piece of CGVE as either “demonstrative” or “real” might be helpful as a starting point, the question of admissibility is ultimately determined under the KRE.

The admissibility of computer-generated diagrams, like those at issue in the case at bar, are analyzed the same as diagrams drawn by hand or photographically created (see discussion infra). That is, computer-generated diagrams have to be relevant, KRE 402; are subject to exclusion under KRE 403; are subject to the trial court’s discretion over the mode and order of the presentation of evidence, KRE 611; and have to be authenticated by testimony of a witness that he or she has personal knowledge of the diagram’s subject matter and the diagram is accurate, KRE 901. Further, because a computer-generated diagram, like any diagram, is merely illustrative of a witness’s testimony, its admission normally does not depend on testimony as to how the diagram was prepared, e.g., how the data was gathered or inputted into the computer. Cf. Cook v. Commonwealth, supra; State v. Furlough, supra. Of course, where a diagram purports to contain exact measurements, to be drawn to scale, etc., then testimony as to how the data was obtained and inputted into the computer would be relevant and could be necessary to the admission of the diagram.

The computer diagrams, Commonwealth’s Exhibits 9 and 10, were likewise introduced through Detective Rice, who again testified that the location of persons and items depicted in the diagrams were supplied to him by witnesses. While he also testified as to physical landmarks (trees, air conditioning units, etc.) and distances in the diagram which he personally observed and measured, Detective Rice Iacked personal knowledge of the most relevant parts of the subject matter of the diagram. His testimony, as it was illustrated in the diagrams, concerning where persons were located at the time of the shooting was based on hearsay and should not have been admitted.

While it was error to allow the Commonwealth to admit the above exhibits through Detective Rice, the error was harmless. RCr 9.24.

The Commonwealth called a variety of witnesses who were present at the time of the shooting and who referred to the diagrams in question. The testimony from these witnesses was sufficient to authenticate the diagram. Thus, the error as to the introduction of the diagram through Detective Rice was cured by the testimony of subsequent witnesses. There remains the potential prejudice created by Detective Rice’s testimony, which effectively served to bolster the testimony of the witnesses to the shooting. See Bussey v. Commonwealth, Ky., 797 S.W.2d 483, 485 (1990).

Under the harmless error doctrine, if upon consideration of the whole case it does not appear that there is a substantial possibility that the result would have been any different, the error will be held non-prejudicial. Abernathy v. Commonwealth, Ky., 439 S.W.2d 949, 952 (1969). We do not believe that the result in this case would have been any different had the diagrams been properly introduced through the witnesses who were present at the scene of the shooting rather than through Detective Rice for the following reasons.

The jury was instructed on both intentional murder and wanton murder. The intentional murder instruction allowed the jury to find Gosser guilty of the intentional murder of Britt Bell if he pulled the trigger of his handgun with the intention of killing Danny Abbott. This is a classic example of the principle of transferred intent.

The Commonwealth’s theory of the case was that Gosser and Ryan Parmalee went to the party where the shooting occurred to pick a fight with Danny Abbott. According to the Commonwealth’s witnesses, Parmalee and Abbott began fighting and Gosser came to Parmalee’s assistance by striking Abbott in the head with a football style block. According to Abbott’s testimony, he responded by stating, “Oh, it’s two on one.” Immediately thereafter, Gosser stepped back, pulled a handgun from his pocket, pointed it at Abbott’s head and fired.

The defense’s theory of the case was that Gosser was not involved in the fight between Abbott and Parmalee and that Gosser neither aimed nor shot at Abbott. Rather, Gosser blindly shot away from both Abbott and Parmalee in an attempt to break up the fight between the two. Par-malee’s statements, which were introduced into evidence, and the testimony of another witness supported the argument that Gos-ser fired away from both Parmalee and Abbott.

The diagrams support the Commonwealth’s theory in that they tend to show Britt Bell and Gosser at opposite endpoints of an imaginary straight line, with Abbott located at a point on the line between the two. The jury, however, did not convict Gosser of intentional murder. Rather, he was convicted of wanton murder. Thus, the jury did not accept the Commonwealth’s theory of the case on this point. However, by all accounts, the night was dark and a number of people were outside watching the fight between Abbott and Parmalee and, possibly, Gosser. The presence of others was known to all involved in the altercation. To randomly fire a gun in the dark in a direction where one knows or should know there exists a high probability of the presence of people, clearly supports the jury’s finding that Gosser acted wantonly under circumstances manifesting extreme indifference to human life. There is not a substantial possibility that, under the facts of this case, the exclusion of the improper bolstering testimony of Detective Rice would have produced a different result. The error was harmless.

II. CONTINUANCE

Next, Gosser argues that the trial judge abused his discretion when he denied Gos-ser’s motion for a continuance because the Commonwealth withheld statements made by Parmalee to the police and the grand jury until shortly before trial. Four days before trial, Gosser made a motion for a sixty-day continuance because approximately five days before he had received notice that the Commonwealth had reached an agreement with Parmalee. Gosser’s attorney argued that this information required changes in strategy, and that he could not adequately prepare for the cross-examination of Parmalee without the continuance.

Further, Gosser urges that he should have received a continuance because, on the date trial was to begin, the Commonwealth provided six diagrams which were created during police interviews with eyewitnesses. The diagrams were kept by one of the investigating officers, and the Commonwealth asserted that it produced all the information it had at the time of Gosser’s request.

As Parmalee’s statements and the witness diagrams were provided within different time frames, they will be discussed separately below.

A. Diagrams from Witness Statements

The witness diagrams were not provided until the first day of trial. Their late production violated RCr 7.26, which is commonly referred to as the “forty-eight hour rule.” RCr 7.26 provides, in pertinent part:

Except for good cause shown, not later than forty-eight ... hours prior to trial, the attorney for the Commonwealth shall produce all statements of any witness in the form of a document or recording in its possession which relates to the subject matter of the witness’s testimony and which (a) has been signed or initialed by the witness or (b) is or purports to be a substantially verbatim statement made by the witness. Such statement shall be made available for examination and use by the defendant.

The diagrams at issue fell within the scope of RCr 7.26. They were witness statements in documentary form that were in the possession of the Commonwealth. Further, they were related to the subject matter of the witnesses’s testimony and were signed by the witnesses.

However, even if the forty-eight hour rule is violated, automatic reversal is not required. McRay v. Commonwealth, Ky.App., 675 S.W.2d 397, 400 (1984). Some prejudice must be found, or the error, if any, is harmless. Id. Gosser argues that the violation of the forty-eight rule, without demonstrating any prejudice from that violation, is sufficient for reversal. We disagree. Because Gosser has not shown that he was prejudiced by that violation, we will not disturb the trial judge’s decision.

B. Parmalee’s Statements

Parmalee’s statements were provided five or six days before trial. The production of Parmalee’s statements to the police clearly did not violate the forty-eight hour rule. However, waiting four days before trial to provide his statement to the grand jury investigating the shooting of Britt Bell violated the spirit, if not the letter,- of RCr 5.16(3), which provides in pertinent part, “any person indicted by the grand jury shall have a right to procure a transcript of any stenographic report or a duplicate of any mechanical recording relating to his or her indictment....” (emphasis added).

Gosser first requested a copy or a tape of the grand jury testimony on March 1, 1996. The transcript of Parmalee’s testimony to the grand jury was not provided to the defense until September 2, 1997. While it is not clear from the record when a copy of the rest of the grand jury testimony was provided to Gosser, it apparently was provided much earlier in time. The Commonwealth has offered absolutely no justification or reason that it delayed providing the defense with Parmalee’s testimony to the grand jury. While the failure to do so is indefensible, it is not reversible error under the facts of this case.

Whether a continuance is appropriate in a particular case depends upon the unique facts and circumstances presented. Snodgrass v. Commonwealth, Ky., 814 S.W.2d 579 (1991). A ruling on a motion for a continuance will not be overturned without a showing of abuse of discretion. Bagby v. Commonwealth, Ky., 424 S.W.2d 119 (1968).

In denying Gosser’s motion for a continuance, the trial court stated that, while it found defense counsel’s argument to be compelling, it also found that trying the case as scheduled would not substantially prejudice the defense. Gosser argues that notice of the Commonwealth’s deal with Parmalee and the tardily provided written statements necessitated defense counsel reformulating the case. While possibly true, we cannot say that the trial court abused its discretion in denying Gos-ser’s motion for a continuance, especially in light of the fact that this case previously had been continued twice because of scheduling conflicts.

III. MISTRIAL

Parmalee made four statements to police after Bell’s death, and he also testified before the grand jury that indicted Gosser. Subsequently, Parmalee was charged and indicted in a separate case for conspiracy to commit murder. Shortly before trial, the Commonwealth reached an agreement with Parmalee whereby he would provide truthful testimony of the circumstances surrounding the shooting in exchange for the dismissal of the indictment.

The Commonwealth closed its case in chief without calling Parmalee as a witness. Thereafter, the court held a conference in chambers to hear motions by counsel. Defense counsel inquired as to Parmalee’s whereabouts and indicated the defense’s intention to call Parmalee as a witness. After the Commonwealth Attorney stated that he was not going to dismiss the indictment against Parmalee, Parmalee’s attorney advised the trial court and counsel that he would advise Parma-lee to assert his Fifth Amendment privilege if he was called to the stand by the defense. Defense counsel then moved for a mistrial.

The trial court initially indicated that it would grant a mistrial because Gosser was unable to call Parmalee as a witness. However, defense counsel raised the possibility of declaring Parmalee an unavailable witness pursuant to KRE 804(a)(1), and admitting his statements to the grand jury as an exception to the hearsay rule pursuant to KRE 804(b)(1). Nonetheless, defense counsel moved the trial court to rule on his motion for a mistrial, which motion the trial court denied. Subsequently, Par-malee’s grand jury testimony was read to the jury in its entirety. Without objection from the Commonwealth, the trial court also allowed Parmalee’s statements to the police to be read to the jury.

A defendant’s motion for a mistrial should only be granted where there is a “manifest necessity for such an action or an urgent or real necessity.” Skaggs v. Commonwealth, Ky., 694 S.W.2d 672, 678 (1985), cert denied, 476 U.S. 1130, 106 S.Ct. 1998, 90 L.Ed.2d 678 (1986). The trial court has broad discretion in determining when a mistrial is necessary. As explained in Wiley v. Commonwealth, Ky.App., 575 S.W.2d 166 (1979), “Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared.... ” Id. at 169, quoting Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961).

In his brief, Gosser states, “... when one looks at the totality of Parma-lee’s statements ... one is confronted with the realization that Parmalee’s version of events support [Gosser’s] version of events and not the prosecution’s ... theory.... Parmalee’s statements ... are replete with exculpatory statements.” Indeed, Parmalee’s statements support the defense’s theory that Gosser did not aim and intentionally fire at Abbott, but rather, that he fired the gun in a direction away from Abbott. Thus, Parmalee’s hearsay statements benefited the defense.

Gosser argues that live testimony is preferable to statements read into the record. However, this Court deals with reversible error, not preferences. Parma-lee’s hearsay statements were read to the jury. The statements supported Gosser’s theory of the case. Finally, Gosser has not argued that Parmalee’s live testimony would have been substantially different or more beneficial to the defense. There was no manifest necessity requiring a mistrial; the trial court did not abuse its discretion in denying Gosser’s motion.

For the foregoing reasons, Gosser’s conviction is affirmed.

LAMBERT, C.J.; COOPER, GRAVES, KELLER, and WINTERSHEIMER, JJ., concur.

STUMBO, J., dissents by separate opinion.

STUMBO, Justice,

dissenting.

Respectfully, I must dissent. The majority opinion finds that the trial court erred in admitting a number of exhibits because they were not properly authenticated, that there was a violation of RCr 7 .26 and of RCr 5.16(3) and that while a mistrial could have been declared, same was waived by the defense. In summary, the majority opinion holds that the trial was rife with error, none of it reversible. Perhaps that is so, but in my view, when the errors are considered together, it is clear that Appellant was denied a fundamentally fair trial. The jury saw exhibits that may not truly have been representative of the crime scene, heard testimony from witnesses that could not be cross-examined and the defendant had a defense counsel who was faced with a change in defense strategy only days before trial. We seldom reverse cases on the basis of cumulative error but this is one in which we should. I would grant Appellant a new trial.

      . Dean M. Harts, Reel to Real: Should You Believe What You See, 66 Def.Couns.J. 514, October 1999.

      . Timothy W. Cerniglia, Computer-Generated Exhibits-Demonstrative, Substantive or Pedagogical-Their Place in Evidence, 18 Am.J. Trial Advoc. 1, Summer 1994 at 4-5.

      . Id. at 5.

      . Compare Cleveland v. Bryant, 236 Ga.App. 459, 512 S.E.2d 360, 362 (1999) (computer-generated animation, which merely illustrates the witness's testimony, is admissible if it is a fair and accurate representation of the scene sought to be depicted) with Livingston v. Isuzu Motors, Ltd., 910 F.Supp. 1473, 1494-95 (D.Mont.1995) (The trial court properly admitted a computer-generated accident simulation introduced through one of the plaintiff’s experts. The simulation recreated the underlying accident and was produced using a vehicle simulation computer program developed by the expert. Based on the lengthy testimony by the expert concerning the development, testing, error rate, acceptance of the program by others in the field and the peer review of the computer simulation methodology, the trial court found that the simulation was admissible under FRE 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)).

        . See generally, Robert G. Lawson, The Kentucky Evidence Law Handbook, § 11.05, pp. 597-610 (3d ed.1993).

      . Cf. Norman C. Ankers & Ronald S. Longhofer, Computer-Based Evidence Under the Michigan Evidence Rules, 78 Mich.B.J. 678, July 1999 at 685, in which the authors conclude that the Michigan Rules of Evidence "work nicely in conjunction with computer data....”; Gregory P. Joseph, A Simplified Approach to Computer-Generated Evidence and Animations, 156 F.R.D. 327 (October, 1994), in which the author applies the Federal Rules of Evidence to a variety of issues arising from the introduction of computer-generated evidence; But cf. Alexandra Tzoumas, Maryland Sets New Standard for Computer-Generated Evidence Admissibility, 12 No. 4 Inside Litig. 18 (April, 1998), in which the author outlines changes made to Maryland Rules of Practice and Procedure for the admission of certain types of computer-generated imagery.

      . See David J. Leibson, 13 Kentucky Practice: Tort Law § 1.3, pp. 5-7 (1995).

      . A statement taken by an investigating officer or other agent of the Commonwealth is deemed to be in the possession of the Commonwealth, regardless of whether the Commonwealth’s attorney is personally aware of the existence of the statement. Anderson v. Commonwealth, Ky., 864 S.W.2d 909, 912 (1993).


author: JOHNSTONE, Justice.

text:
    Seth Sebastian BOLEN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 1998-SC-1128-MR.
    Supreme Court of Kentucky.
    Nov. 22, 2000.

      Richard Hoffman, Assistant Public Advocate, Department of Public Advocacy, Frankfort, for appellant.
    A.B. Chandler III, Attorney General of Kentucky, David A. Smith, Dana M. Todd, Assistant Attorneys General, Criminal Appellate Division, Office of the Attorney General, Frankfort, for appellee.
   JOHNSTONE, Justice.

Appellant, Scott Bolen, appeals from his McCracken Circuit Court conviction for possession of drug paraphernalia (second offense), first-degree possession of a controlled substance, resisting arrest, and first-degree persistent felony offender. The jury recommended a total sentence of twenty-five years’ imprisonment which was reduced without objection to twenty years’ imprisonment. We affirm in part, reverse in part, and remand.

Bolen was in the wrong place at the wrong time. On February 7, 1998, the Paducah Police received a call concerning a domestic violence complaint at a particular residence. Officer Grimes was the first police officer to arrive at the residence. With permission, Grimes entered the residence. Inside, he saw Bolen in an adjoining room. Grimes observed Bolen drop what appeared to be a crack pipe and subsequently attempted to place him in custody. Bolen resisted the officer’s efforts. Two other officers intervened in order to subdue him. A search of Bolen’s person yielded a metal crack pipe and two cotton balls. Testing confirmed that both crack pipes contained cocaine residue.

I. PERSISTENT FELONY OFFENDER ENHANCEMENT

Between the time Bolen was indicted and tried, KRS 532.080, as amended in the Omnibus Crime Bill of 1998, became effective. The amended version of the statute created a new section, which was codified as KRS 532.080(8). This new subsection provides:

No conviction, plea of guilty, or Alford plea to a violation of KRS 218A.500 shall bring a defendant within the purview of or be used as a conviction eligible for making a person a persistent felony offender under this section.

Bolen moved the trial court in limine to allow him to take advantage of the benefits of this new subsection of the statute, i.e., he argued that the amendment precluded a sentence for a possible conviction for possession of drug paraphernalia (second offense) from being enhanced under KRS 532.080. The trial court denied the motion on grounds that the amendment in question was not substantive and did not apply. After being convicted, Bolen renewed the motion at sentencing. This time, the trial court reasoned that KRS 532.080(8) operates to prevent enhancement where a previous conviction for possession of drug paraphernalia constitutes a prior felony in the determination of persistent felony offender status, but that the provision did not preclude a second conviction for possession, of drug paraphernalia from being enhanced. We disagree, and therefore reverse the conviction for PFO I based on his conviction for possession of drug paraphernalia (second offense).

First of all, we note that clearly Bolen was entitled to take advantage of the benefits of the statute. KRS 446.110 provides in pertinent part:

If any penalty, forfeiture or punishment is mitigated by any provision of the new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect.

This statute creates an exception to the general rule that “[n]o statute shall be construed to be retroactive, unless expressly so declared.” KRS 446.080. The exception of KRS 446.110 only applies if the new penalty is definitely mitigating. Commonwealth v. Phon, Ky., 17 S.W.3d 106, 108 (2000), citing Coleman v. Commonwealth, 160 Ky. 87, 169 S.W. 595, 597 (1914).

The amendment to KRS 532.080 in question eliminates an eligible person’s sentence from being enhanced as a persistent felony offender. The amendment is definitely mitigating. Further, we have no trouble concluding that the plain meaning of KRS 532.080(8) makes Bolen eligible to take advantage of its benefit.

Bolen’s conviction for possession of drug paraphernalia (second offense) was a conviction for violation of KRS 218A.500. KRS 532.080(8) expressly provides: “No conviction [for] a violation of KRS 218A.500 shall ... be used as a conviction eligible for making a person a persistent felony offender under this section.” Nonetheless, the trial court instructed the jury on first-degree persistent felony offender as to possession of drug paraphernalia (second offense). The jury found Bolen guilty of the offense and fixed his punishment at ten (10) years’ imprisonment. In other words, Bolen was convicted of PFO I based on his conviction for a violation of KRS 218A.500. This is contrary to KRS 532.080(8), which made Bolen ineligible for being convicted as a persistent felony offender based on his conviction for possession of drug paraphernalia (second offense).

II. POSSESSION OF A CONTROLLED SUBSTANCE

Bolen contends that his conviction for possession of a controlled substance cannot be upheld since the amount of cocaine found in each pipe was not measurable. Testing by the Commonwealth revealed that a non-weighable amount of residue existing on each pipe contained the molecular structure of cocaine.

Bolen asserts that the statute calls for “any quantity” and that quantity implies a measurable amount. See KRS 218A.1415(1). This argument is directly contrary to this Court’s holding in Commonwealth v. Shivley, Ky., 814 S.W.2d 572 (1991), that “possession of cocaine residue ... is sufficient to entitle the Commonwealth’s charge to go to a jury when there is other evidence or the inference that defendant knowingly possessed the controlled substance.” Id. at 574. Similar to this case, testing in Shivley revealed cocaine residue that could not be accurately weighed. However, this Court declared that the quantity of the controlled substance possessed is immaterial to the criminality of the act. Id. at 573. See also Commonwealth v. Harrelson, Ky., 14 S.W.3d 541, 549-50 (2000). Therefore, the existence of cocaine residue on each pipe was sufficient to support a conviction under KRS 218A.1415(1).

III. FAILURE TO STRIKE JUROR FOR CAUSE

Bolen also argues that the trial court erred in its refusal to strike a juror for cause. Bolen believes that the juror had already formed an opinion as to Bo-len’s defense which deprived Bolen of his constitutional right to an impartial jury. See U.S. Const, amend. VI.; Ky. Const. §§ 7,11.

Consistent with a defendant’s federal and state constitutional right to trial b ' an impartial jury, RCr 9.36 states in relevant part, as follows:

When there is reasonable ground to believe that a prospective juror cannot render a fair and impartial verdict on the evidence, he shall be excused as not qualified.

The standard of review for a trial court’s decision on a challenge for cause is whether there was an abuse of discretion. Bowling v. Commonwealth, Ky., 942 S.W.2d 293 (1997), cert. denied, 522 U.S. 986, 118 S.Ct. 451, 139 L.Ed.2d 387 (1997). In order to find reversible error, Bolen must demonstrate a probability of bias or prejudice based on the particular facts of the case. Pennington v. Commonwealth, Ky., 316 S.W.2d 221, 224 (1958). See also Tayloe v. Commonwealth, Ky., 335 S.W.2d 556 (1960).

During voir dire, the challenged juror volunteered information pertaining to her experience as a schoolteacher and the frail excuses she received from her past students. She questioned whether an individual could commit a crime without actually knowing it. However, she specifically indicated that she had not heard all the facts of this particular case. There was no suggestion that she would not consider all of the evidence presented nor apply the law as instructed. The juror in this case demonstrated that she could lay aside her opinion and the trial court judge accepted this assurance. Therefore, there was no abuse of discretion by the trial court in its refusal to strike the juror for cause.

IV. OTHER ERRORS

Bolen makes three additional claims of error: (1) whether expert testimony via closed circuit television violates the Confrontation Clause; (2) whether there was prosecutorial misconduct during voir dire; and (3) whether his convictions for both possession of drug paraphernalia and possession of a controlled substance violated the constitutional prohibition against double jeopardy. All three of these issues are unpreserved. We have carefully reviewed these and conclude that each one is without merit and none deserve to be discussed further.

For the reasons set forth above, we affirm Bolen’s convictions for possession of drug paraphernalia (second offense), first-degree possession of a controlled substance, resisting arrest, and PFO I based on his conviction for first-degree possession of a controlled substance, and reverse his conviction for PFO I based on his conviction for possession of drug paraphernalia (second offense), and remand for a new sentencing hearing consistent with this Opinion.

All concur.


author: WINTERSHEIMER, Justice.

text:
    Kevin OSBORNE, Appellant, v. Charles Anthony PAYNE and the Roman Catholic Diocese of Owensboro, Ky., Appellees. and Charles Anthony Payne, Appellant, v. Kevin Osborne and the Roman Catholic Diocese of Owensboro, Ky., Appellees.
    Nos. 1999-SC-0616-DG, 1999-SC-0621-DG.
    Supreme Court of Kentucky.
    Nov. 22, 2000.

      Albert William Barber III, Owensboro, for Appellant/Appellee Charles Anthony Payne.
    Stephen B. Lee, Owensboro, for Appellant/Appellee Kevin Osborne.
    Marvin P. Nunley, McCarroll Nunley & Hartz, Charles J. Kamuf, Kamuf, Yewell, Pace & Condon, Owensboro, for Appellee Roman Catholic Diocese of Owensboro.
   WINTERSHEIMER, Justice.

This appeal is from an opinion of the Court of Appeals which affirmed in part, reversed in part and remanded a judgment of the circuit court which had summarily dismissed the complaint of the husband against a former priest and the Roman Catholic Diocese of Owensboro.

The questions presented are whether the Court of Appeals was in error when it determined that Osborne was not acting within the scope of his employment as a priest when he engaged in an adulterous sexual relationship with the wife; whether the catholic diocese should be held vicariously hable for his actions and whether the husband abandoned his claim that the diocese was negligent. The broader issue is whether the action for intentional infliction of emotional distress or outrage may be brought against a clergyman when the clergyman was sought out for marital counseling but the result was an interference with the marriage because of an illicit sexual relationship.

Payne and his wife were experiencing marital difficulties and went to Osborne, their parish priest, for counseling. Ultimately, Payne and his wife were divorced following his discovery of a 45-day adulterous relationship between his wife and Osborne. Apparently, the relationship did not continue and Osborne left the priesthood. Payne sued the former priest for the tort of outrageous conduct and the Diocese of Owensboro under a vicarious liability theory for its alleged negligent training, screening and supervision of Osborne.

The circuit court gave summary judgment to both defendants on the grounds that adultery can never reach the stage of outrageous conduct and that the claim of outrage was actually a claim for interference with marital relations or alienation of spousal affection which had previously been abolished by this Court in Hoye v. Hoye, Ky., 824 S.W.2d 422 (1992). The Court of Appeals affirmed the dismissal of the diocese but reversed the summary judgment in favor of Osborne because there was a special relationship which distinguished the conduct of the former priest from that of a traditional adulterer, and that a jury question was presented as to whether his behavior was outrageous conduct. This Court accepted discretionary review.

I. Osborne

During the summary judgment proceedings, the depositions of both Charles Payne and Kevin Osborne were taken. Payne testified that as a result of discovering the adulterous affair, he suffered a nervous breakdown, lost his religion, lost his house and lost his job as well as his wife. Osborne testified that after the sexual affair, he had resigned from the ministry and was no longer employed as a priest and had moved to Tennessee.

Craft v. Rice, Ky., 671 S.W.2d 247 (1984), is the seminal case involving the tort of intentional infliction of emotional distress or outrageous conduct in Kentucky. In order to establish such a claim, the plaintiff must prove the following elements: The wrongdoer’s conduct must be intentional or reckless; the conduct must be outrageous and intolerable in that it offends- against the generally accepted standards of decency and morality; there must be a causal connection between the wrongdoer’s conduct and the emotional distress and the distress suffered must be severe. As noted in Kroger Company v. Willgruber, Ky., 920 S.W.2d 61 (1996), the tort is not available for “petty insults, unkind words and minor indignities.” Nor is it to compensate for behavior that is “cold, callous and lacking sensitivity.” Humana of Ky., Inc. v. Seitz, Ky., 796 S.W.2d 1 (1990). Rather, it is intended to redress behavior that is truly outrageous, intolerable and which results in bringing one to his knees. Willgmber, supra.

The circuit court summarily dismissed the claim against the former priest for failure to allege misconduct that was sufficient to satisfy the outrageous element of the tort, relying on Whittington v. Whittington, Ky.App., 766 S.W.2d 73 (1989). In that case, the claim of the wife was dismissed under CR 12.02 for failure to state a claim upon which relief can be granted; the circuit court concluded that ordinary fraud and adultery can never reach the status of outrageous conduct.

Here, the most important element of the complaint by Payne, as demonstrated by his deposition testimony, is that he was injured as a result of the misconduct of Osborne while in a special relationship as priest and counselor. Moreover, the alleged exploitation of that relationship occurred in a situation when the former priest was aware that the marriage partners were most vulnerable.

This Court in Seitz, supra, indicated that the special relationship of patient to nurse had not been violated, but left for “another day” a decision as to whether such special relationships are part of the tort of outrageous conduct. In this case, as distinguished from Seitz, Payne has presented sufficient evidence from which a jury could conclude that he had a special relationship with his priest or marriage counselor and that this special relationship was violated in an outrageous fashion so as to cause him severe emotional distress. It is the concept of special relationship that distinguishes this factual situation from Whittington. The establishment of the existence of a special relationship between the parties can make conduct outrageous. The use of a confidential relationship between Payne and his priest counselor is the heart of his lawsuit. The relationship itself cannot be used to give rise to a presumption of outrageousness, rather the relationship between the parties, is an aid in determining whether the conduct itself is outrageous.

For the purpose of summary judgment, it is evident that the former priest used his relationship with the husband and the wife to obtain a sexual affair with the wife. Conduct and relationship can form the basis for outrageous conduct. It must be remembered that pursuant to CR 56.03 the grounds for summary judgment are: 1) there is no genuine issue as to any material fact, and 2) the moving party is entitled to judgment as a matter of law. This Court has repeatedly announced that summary judgments are to be cautiously applied and not to be used as a substitute for trial. A movant must convince the court, based upon evidence in the record, of the nonexistence of a material fact issue, and a motion will not be granted unless the right to summary judgment is shown with such clarity that there is no room left for controversy. Osborne has not satisfied that requirement and cannot seek refuge in summary dismissal. Reliance on Whit-tington does not solve the issue as to whether the conduct of Osborne was sufficiently outrageous to allow the matter to proceed to a jury verdict.

The mere fact that in recent years there has been apparently an increasing number of claims against clergy for sexual misconduct does not make the behavior any less outrageous or disgraceful or otherwise actionable. Some jurisdictions have denied relief under a theory of intentional infliction of emotional distress after concluding that the claims were merely an attempt to bring amatory actions which were no longer viable. See Strode v. Pressnell, 38 Ohio St.3d 207, 527 N.E.2d 1235 (1988). However, we are persuaded by the reasoning used in the cases noted by the Court of Appeals including Destefano v. Grabrian, 763 P.2d 275, 285 (Colo.1988), in which it was stated that: a plaintiff will not be able to mask one of the abolished actions ... behind a common law label. However, if the essence of the complaint is directed to a cause of action other than one which has been abolished, that claim is legally cognizable. See also Figueiredo-Torres v. Nickel, 321 Md. 642, 584 A.2d 69 (1991).

We note that this Court abolished the action for breach of promise to marry in Gilbert v. Barkes, Ky., 987 S.W.2d 772 (1999), but stated that it in no way prohibited other remedies, such as claims for breach of contract and intentional infliction of emotional distress, should a party be able to make such a case. It should be emphasized that these claims must be approached on a case-by-case basis, and there is no blanket or automatic imposition of a cause of action in the clergy/counselor relationship.

II. The Diocese

Payne next argues that Osborne, as a priest, was engaging in an activity sanctioned by the church and ordinarily performed by a priest, that is, marriage counseling. He argues that it was because Osborne was a priest that he was called upon by them; that his help was sought and that he was invited into the home. Payne reasons that the diocese should be vicariously liable for the actions of Osborne. We cannot agree. To accept such a theory would in effect require the diocese to become an absolute insurer for the behavior of anyone who was in the priesthood and would result in strict liability on the part of the diocese for any actionable wrong involving a parishioner. We must conclude that such an argument is absurd. Certainly, the scope of employment of a priest could include marriage counseling, but it clearly does not include adultery.

The critical analysis is whether the employee or agent was acting within the scope of his employment at the time of his tortious act. Wood v. Southeastern Greyhound Lines, 302 Ky. 110, 194 S.W.2d 81 (1946), provides that for it to be within the scope of its employment, the conduct must be of the same general nature as that authorized or incidental to the conduct authorized. A principal is not liable under the doctrine of respondeat superior unless the intentional wrongs of the agent were calculated to advance the cause of the principal or were appropriate to the normal scope of the operator’s employment. Hennis v. B.F. Goodrich Co., Inc., Ky., 349 S.W.2d 680 (1961). In this situation, it is the abuse by the priest of his position that exceeds the scope of his employment. It is beyond question that Osborne was not advancing any cause of the diocese or engaging in behavior appropriate to the normal scope of his employment. There are a variety of cases from other jurisdictions that comport with our conclusion in this matter. See Amato v. Greenquist, 287 Ill.App.3d 921, 223 Ill.Dec. 261, 679 N.E.2d 446, 455 (1997); L.L.N v. Clauder, 203 Wis.2d 570, 552 N.W.2d 879 (Ct.App.1995) (reversed on other grounds in L.L.N. v. Clauder, 209 Wis.2d 674, 563 N.W.2d 434 (1995)) H.R.B. v. J.L.G., 913 S.W.2d 92 (Mo.Ct.App.1995); Gibson v. Brewer, 952 S.W.2d 239 (Mo.1997).

Here, Payne has failed to present any evidence in the record that Osborne had a history of sexual misconduct involving parishioners or that the diocese had any knowledge that Osborne might conceivably engage in such misconduct. Consequently, we must conclude that the summary judgment granted by the circuit court and affirmed by the Court of Appeals as to the diocese was correct. There was no basis to support a claim of independent negligence by the diocese so as to support a rejection of the motion for a summary judgment. We recognize that independent negligence can be a valid claim under the proper circumstances as found in Roman Catholic Diocese of Covington v. Secter, Ky.App., 966 S.W.2d 286 (1998).

We must also note that Payne has failed to preserve properly his claim against the diocese. Civil Rule 76.03(8), provides that a party shall be limited on appeal to the issues in the prehearing statement before the Court of Appeals. Here, the civil appeal prehearing statement contained no issue regarding the diocese. The argument sections of the brief of Payne in the Court of Appeals referred only to the ruling of the circuit court regarding the conduct of Osborne. The failure to argue before the Court of Appeals that summary judgment was improper as to the diocese is tantamount to a waiver. Cf. Hall v. Kolb, Ky., 374 S.W.2d 854 (1964). Any part of a judgment appealed from that is not briefed is affirmed as being confessed. Cf. Stansbury v. Smith, Ky„ 424 S.W.2d 571 (1968).

We conclude that members of the clergy can be liable for damages resulting for their intentional tortious conduct, commonly called the tort of outrage, when it constitutes the intentional infliction of emotional distress. It is a combination of relationship and conduct that distinguishes this kind of behavior from adultery which has been effectively abolished as a tort claim in Kentucky. Thus, Payne is allowed to proceed with his claim in circuit court against Osborne. However, there is nothing to support a claim of vicarious liability for the conduct of the former priest against the diocese, and it cannot be held vicariously hable in this matter.

The judgment of the Court of Appeals is affirmed and this matter is remanded for proceedings consistent with this opinion.

LAMBERT, C.J., COOPER, JOHNSTONE, STUMBO and WINTERSHEIMER, JJ„ concur.

GRAVES, J., concurs in result only.

KELLER, J., concurs but believes the issue as to the diocese was preserved.


author: LAMBERT, Chief Justice.

text:
    HUMCO, INC., d/b/a Humana Hospital-Lexington, Appellant, v. Honorable Mary C. NOBLE, Judge, Fayette Circuit Court, Fifth Division, Appellee. Mary Coleman, Real Party in Interest.
    No. 2000-SC-0018-MR.
    Supreme Court of Kentucky.
    Nov. 22, 2000.

      Jeffrey J. Kuebler, Kuebler Law Offices, Lexington, for Appellant.
    Mary C. Noble, Judge, Fayette Circuit Court, Lexington, for Appellee, Mary C. Noble.
    Albert F. Grasch, Jr., Theodore E. Cow-en, Grasch & Cowen, P.S.C., Lexington, for Appellee, Real Party in Interest, Mary Coleman.
    John C. Roach, Robert E. Wier, Rans-dell, Roach & Wier, PLLC, Lexington, for Amicus Curiae, the Kentucky Academy of Trial Attorneys.
   LAMBERT, Chief Justice.

Pursuant to CR 76.36(7)(a), Humeo, Inc., doing business as Humana Hospital-Lexington (“Humana”), appeals from an order of the Court of Appeals denying its petition for a writ of mandamus. Through the writ, Humeo sought to compel Judge Mary C. Noble of the Fayette Circuit Court to disqualify opposing counsel for allegedly making improper ex parte contacts, in violation of SCR 3.130(4.2), with current and former Humana employees and to suppress written statements obtained as a result of these contacts.

The underlying claim involves allegations of racial discrimination by the real party in interest, Mary Coleman, against Humana, her former employer for which she worked as a nurse from 1988 to 1995. In July 1995, prior to suit being filed, Coleman’s former counsel, Virginia M. Angellis, wrote to Becky Adams, hospital administrator for Humana, regarding Coleman’s discrimination claims. Adams responded in a letter, noting on the letter that it was copied to Humana’s legal counsel: “Lois Hess, House Counsel, Jewish Hospital Healthcare Services.” The letter indicated that Humana did not tolerate discrimination in its organization and that it had an internal grievance procedure for dealing with discrimination claims.

In September 1995, prior to the commencement of litigation, Angellis contacted five Humana employees regarding the matter. At least four were current employees at the time of contact, and the position and employment status of the fifth is unknown. Of these four, three were staff nurses and one was a staffing coordinator. In her affidavit in this proceeding, Angellis stated that she did not know that Humana was represented by counsel on this matter at the time she undertook the witness interviews. She further stated that she was unaware that Humana was formally represented until March 1996, after suit had been filed and William Rambi-cure had entered his appearance as counsel for Humana.

In March 1996, Coleman filed suit against Humana. In May 1996, Albert F. Grasch and Theodore E. Cowen of Grasch and Cowen, P.S.C., replaced Angellis as counsel for Coleman, and the new attorneys took possession of the notes prepared by Angellis from her communications with Humana employees. From September 1996 through the winter of 1998, Coleman’s counsel contacted approximately ten former Humana employees, at both management and non-management levels, without notice to or consent of Humana counsel. Two of these former employees were involved in meetings and discussions regarding the disciplining of Coleman and the ultimate termination of her employment with Humana.

On February 5, 1999, Humana filed a motion in the trial court seeking disqualification of Coleman’s attorneys based upon allegedly improper ex parte contacts with current and former Humana employees. In its motion, Humana also requested that the trial court suppress any further use of statements obtained from Humana employees through these contacts. The trial court denied- the motion for two reasons. With regard to the current employees An-gellis had contacted, the trial court held that the contacts were not improper because the employees were not at a managerial or supervisory level or because the contacts occurred before Humana was represented by counsel. With regard to the former employees contacted by Grasch and Cowen, the trial court held such contact is not prohibited by SCR 3.130(4.2), regardless of whether the employees were at management level or otherwise.

Humana then filed a petition for a writ of mandamus in the Court of Appeals, seeking to compel the trial court to disqualify Grasch and Cowen and to suppress the statements they had obtained. The Court of Appeals denied the writ, holding with regard to the Angellis contacts that there was no evidence that Humana was formally represented by counsel at that time and that the July 1995 letter to An-gellis, copied to Humana’s in-house counsel, was insufficient to put Angellis on notice that Humana was represented by counsel. In support of this conclusion, the Court of Appeals relied upon K-Mart v. Helton, which held that the knowledge that corporations have in-house counsel is not sufficient to provide actual notice of representation.

The Court of Appeals further held that the second set of contacts, between Coleman’s current counsel and former Humana employees, were not improper because contact with former employees is not prohibited. In support of this result, the Court of Appeals adopted Formal Ethics Opinion, KBA E-381, which states that communications with unrepresented former employees of an organizational party do not violate SCR 3.130(4.2).

Humana now contends, relying on Shoney’s Inc. v. Lewis, that the contacts made by Angellis with current employees were improper as Humana was represented by counsel at the time. Humana maintains that the letter sent by Adams to Angellis and copied to Humana’s in-house counsel makes such representation clear. In Shoney’s, the plaintiffs counsel was explicitly advised that the defendant corporation was represented by counsel and was given the name of such counsel. No such explicit information was conveyed to An-gellis in this case. Adams’ letter did not state that Humana was represented by an attorney nor state that all further contact was to be through Hess. Adams’ letter did not state that Hess was to be consulted in the matter.

Individuals often copy “their attorney” on letters, but that fact alone does not establish that the attorney is representing the letter-writer nor does this record reveal any such representation.

This conclusion is supported by a Formal Opinion of the American Bar Association, No. 95-396. This opinion states that the requirement in Rule 4.2 of “securing permission of counsel is limited to those circumstances where the inquiring lawyer ‘knows’ that the person with whom he wants to speak is represented by counsel with respect to the subject of the communication.” The opinion further states that actual knowledge is required and may be inferred from the circumstances. Such circumstances are not present in this case, as there is no evidence from the record that Humana was formally represented by Hess when the communications occurred or that Angellis knew that Humana was represented by counsel.

With regard to former managerial employees, Humana urges this Court to hold that such contacts should be prohibited if they concern the subject of representation and if the former employee has personal knowledge of the matter that could be imputed to the employer. With regard to former non-managerial employees, Hu-mana argues that contact should be prohibited if an employee’s acts or omissions may be imputed to the organization or if their statements may constitute admissions by the organization. To resolve the issue of whether confidential information should remain confidential regardless of whether the individual is still employed, it is necessary to review the rule, its rationale, and interpretations thereof.

SCR 3.130, Rule 4.2, entitled “Communication with Person Represented by Counsel,” limits an attorney’s right to contact the employees of a represented organization. Specifically, the rule provides:

In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

The official commentary to the rule explains that there are three categories of employees of a represented organization that are off limits to opposing counsel: 1) persons having managerial responsibility on behalf of the organization, 2) any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability, and 3) any other person whose statement may constitute an admission on the part of the organization.

The rule does not distinguish between current and former employees of the organization.- As noted by the Court of Appeals, Formal Ethics Opinion KBA E-381 provides guidance in this area. In holding that ex parte contact with an organization’s former employees is not prohibited, the ethics opinion reasoned, “a former employee is no longer subject to the control of the organization nor in a position to speak for the organization, and cannot make vicarious admissions under the state and federal evidence rules.” The opinion refers to a formal opinion issued in 1991 by the American Bar Association Committee on Ethics and Professional Responsibility, which explicitly states that Rule 4.2 does not extend to former employees, even if they are former managerial employees or those whose conduct might have been the basis for imputing liability to the employer or whose statements could be admitted in evidence as an admission by the employer.

We believe this to be the sound approach and observe that it has been adopted by the majority of other jurisdictions. The majority rule is consistent with the purposes and policies of Rule 4.2. The purpose of Rule 4.2 is not “to prevent the flow of information, even if damaging to a party in a suit.” Rather, it is to preserve the positions of the parties in an adversarial system and thereby to maintain the protections obtained by employing counsel and prevent disruption of the attorney-client relationship. A former employee with no present relationship with the organizational party is not a “party” under the rule, and thus the individual is not adverse in the sense that his interests are at stake in the litigation.

Finally, Humana argues that the Court of Appeals should be reversed and the writ of mandamus granted because, even if no technical ethical violation occurred, Coleman’s attorneys have created an impermissible appearance of impropriety. This standard has been adopted as a basis independent of SCR 1.9 for enforcing an attorney’s duty of loyalty and confidentiality to a former client to avoid compromise by subsequent representation of another party. Lovell is clearly limited to protecting the attorney/client relationship or the reasonable expectations of parties in that regard and to promoting public confidence in the integrity of the legal profession. We decline the invitation to extend this standard to situations involving transactions with persons other than clients under SCR 4.2.

A writ of mandamus is an extraordinary remedy and should be granted only when the lower court “is proceeding or about to proceed without jurisdiction, and there is no adequate remedy by law, or to establish that the lower court, although acting with jurisdiction, is about to act incorrectly and there is no adequate remedy by appeal and great injustice or irreparable injury would result.” In deciding the propriety of the denial of a writ, this Court must determine whether the Court of Appeals exercised sound discretion or acted arbitrarily. Here, we are compelled to conclude that the Court of Appeals’ decision was not arbitrary and that it acted properly in denying Humana’s request for a writ ordering disqualification of opposing counsel.

For the foregoing reasons, the judgment of the Court of Appeals is affirmed.

All concur, except WINTERSHEIMER, J., who concurs in result only.

      . Ky., 894 S.W.2d 630 (1995).

      . Ky., 875 S.W.2d 514 (1994).

      . See K-Mart v. Helton, supra; Miano v. AC & R Advertising, Inc., 148 F.R.D. 68, 80 (S.D.N.Y.1993)("mere existence of general counsel, without particular involvement in the matter at issue, is insufficient to render a corporation 'represented' ").

      . ABA Formal Opinion 95-396 at 12-13.

      . See Shoney’s v. Lewis, Ky., 875 S.W.2d 514, 515 (1994)(citing SCR 3.130, Rule 4.2, comment 2).

      . ABA Committee on Ethics and Professional Responsibility, Formal Op. 91-359, at 6 (March 22, 1991).

      . Aiken v. The Business and Industry Health Group, Inc., 885 F.Supp. 1474, 1479 (D. Kan.1995).

      . Lovell v. Winchester, Ky., 941 S.W.2d 466 (1997).

      . Id. at 468-469.

      . Bock v. Graves, Ky., 804 S.W.2d 6, 9 (1991).

      . Jones v. Hogg, Ky., 639 S.W.2d 543 (1982).