Kennedy v. State4/29/2005
On March 4, 2004, Brenda L. Kennedy was convicted of child abuse, a violation of § 26-15-3, Ala. Code 1975. On June 3, 2004, the trial court sentenced Kennedy, as a habitual felony offender, to 20 years in prison, but split the sentence and ordered Kennedy to serve 3 years in prison, to be followed by 5 years on supervised probation. On June 5, 2004, Kennedy filed a "Motion to Reconsider Sentence or in the Alternative Defendant's Objection to Sentence," which the trial court denied on June 22, 2004. On June 25, 2004, Kennedy filed a motion for a new trial, which the trial court denied on July 16, 2004. This appeal followed.
The facts adduced at trial indicate the following: On June 7, 2003, eight-year-old C.J. telephoned emergency 911 from the house he shared with, Kennedy, his mother. C.J. called 911 because he was home alone and believed someone was trying to break into the house. When the police officer arrived, he found C.J. alone, naked and hungry, with his wrists and ankles bound with duct tape. C.J. told the officer that, early that morning, Kennedy had left C.J. alone and bound in the bathtub. According to C.J., this was not the first time this had occurred. On this particular day, C.J. had managed to work his hands loose, but his ankles were tightly bound, forcing him to hop to the telephone and to the door. Upon entering the house, the police officer covered C.J. with newspaper and, after ensuring there was no intruder in the house, cut the duct tape from C.J.'s ankles. C.J. was taken to the police station, where he was fed. At the time of Kennedy's sentencing, C.J. was still in the custody of the Department of Human Resources because no family member had appeared at his permanency hearing. See § 12-15-62(c), Ala. Code 1975.
Kennedy raises two issues on appeal. We address each in turn.
I.
Kennedy argues that the trial court erred in several ways by allowing the State's expert witness to testify. The witness, Emily Israel, was employed as a counselor and forensic interviewer at the Prescott House, a child advocacy center. At trial, the State questioned Israel, then moved to have her qualified as an expert witness. Kennedy objected on the following grounds:
"[Defense counsel]: I object. ... I don't know if she should be qualified as an expert. I mean, the tape speaks for itself. The jury can look at that and make a determination based on what they've seen. So I object to her giving any inferences as to his statements on the tape.
"....
"THE COURT: I'm going to overrule your objection. She's qualified as an expert."
(R. 132-22.)
"[Prosecutor]: Ms. Israel, after talking to [C.J.], the young man on the tape, did you form an opinion as to whether or not he had been abused?
"[Defense counsel]: Objection, Your Honor. That's a question for the jury.
"THE COURT: I'm going to sustain that.
"[Argument by the prosecutor].
"THE COURT: I'm going to sustain at this time."
(R. 133-34.) Another witness, a social worker, testified that Kennedy at first had maintained that C.J. had tied himself up, then changed her story to blame a homeless woman, whom, Kennedy maintained, she had hired to take care of C.J. After that testimony, the trial court reconsidered its previous ruling that Israel could not offer her opinion as to whether C.J. had been abused, stating:
"Of course, now there are two ultimate issues: whether or not he was abused and whether or not this defendant, in fact, did that.
"I'm still not completely definite that it's proper. I would like to review the cases that we've sent [someone] to
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