# Brown v. Commonwealth

> Kentucky Supreme Court · July 3, 1991 · 812 S.W.2d 502

URL: https://www.frixlaw.com/law-library/cases/9646987

## Case

- **Full name:** Malcolm T. BROWN, Appellant, v. COMMONWEALTH of Kentucky, Appellee
- **Court:** Kentucky Supreme Court
- **Decided:** July 3, 1991
- **Citations:** 812 S.W.2d 502; 1991 Ky. LEXIS 93; 1991 WL 117512
- **Precedential status:** Published
- **Opinion:** Dissent by Wintersheimer
- **Judges:** Stephens, Combs, Lambert, Leibson, Spain, Wintersheimer
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Stringer v. Commonwealth, 1997 Ky. LEXIS 149 (1997).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9646987

## Opinion text

WINTERSHEIMER, Justice,
dissenting.
I would respectfully dissent from that part of the majority opinion which reverses the conviction.
It would appear that the majority establishes a new rule by judicial mandate that any conviction more than 10 years old is inadmissible because of remoteness. I believe that such an automatic fixed rule is in contradiction to the philosophy expressed in Commonwealth v. Richardson, Ky., 674 S.W.2d 515 (1984). Richardson, supra, provided a balanced approach to the definition of remoteness when it noted that other pertinent factors in addition to time may be considered. The circumstances of each case should determine the application of prior convictions in regard to a remoteness consideration. The status of Scruggs v. Commonwealth, Ky., 566 S.W.2d 405 (1978) and Hunter v. Commonwealth, Ky., 560 S.W.2d 808 (1977) seem to be unclear. If the court wishes to establish a new definite time standard then such a rule should be promulgated in a prospective fashion.
The trial judge did not commit reversible error in admitting testimony of factors which would be consistent with abuse. In this case, Brown seeks to explain the behavior of the victim as that of a disturbed child or a born liar. There was no reversible error in permitting evidence to the contrary whether it was in anticipation or in response to such a theory. Onwan v. Commonwealth, supra, presents a common sense approach to this difficult subject.
The trial judge did not commit reversible error in permitting the medical witness to consider the case history relative to her medical findings. The doctor examined the prosecuting witness in the emergency room and noted a significant but old healed cervical tear. The expression of these facts involved medical testimony only and do not go to the ultimate issue which is always reserved to the jury.
I would affirm the conviction in all respects.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9646987. Public record. Not legal advice.