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Bell v. Commonwealth, 2009-CA-002109 Not to be published
REVERSING IN PART, AFFIRMING IN PART, AND REMANDING
After a Petition for Rehearing was filed by the Commonwealth in response to the first Bell Opinion issued in May 2011, the Court granted the Petition and modified their Opinion. In Bell I, the COA held that the trial court erred in excluding under KRE 412 evidence that the complaining witness, who alleged having been raped, sodomized and assaulted by Bell, had a history of drug use, particularly since the defense forwarded by Bell at trial involved a consensual exchange of sex for drugs. The COA, in Bell II, held that the error only affected the charges of sodomy and rape, but did not impact the findings of guilt on assault or tampering with physical evidence. There were two dissenting opinions:
Judge Combs dissented, arguing that the drug history information was not admissible and its exclusion was not error. Reasoning that KRE 412 seeks to protect victims of sexual assault from allegations of immoral behavior which justify the assault, Judge Combs argued that a “quid pro quo” allegation of sex for drugs was the type of evidence contemplated by KRE 412.
Judge Moore also dissented, holding that the majority correctly found that the evidence did not meet the bar of KRE 412 and further holding that the trial court’s error of excluding the evidence impacted not only the sodomy and rape convictions, but also the assault and tampering convictions. “However, because the underlying allegations that lead to these charges are so entwined, I believe the United States Constitution requires granting a new trial on all of the charges, to allow Bell to present his full defense theory to the jury on all of the charges, rather than just on the sodomy charge.” Dissent of Judge Moore at 18.
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