IMPORTANT NOTICE

NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."

PURSUANT TO THE RULES OF CIVIL PROCEDURE

PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),

THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE

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6

*ixprsme C-Ourf of

2005-SC-000707-MR

RENDERED: NOVEMBER 1, 2007

NOT TO BE PUBLISHED

ON APPEAL FROM CUMBERLAND CIRCUIT COURT

V. HONORABLE EDDIE C. LOVELACE, JUDGE

NOS. 04-CR-000052 & 04-CR-000054

JOHN T. THURMAN APPELLANT

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Appellant, John T. Thurman, was convicted of rape in the first degree,

sodomy in the first degree, and use of a minor in a sexual performance . He now

appeals his convictions as a matter of right . Ky. Const. § 110(2)(b) .

On appeal, Appellant argues that the trial court denied him due process by

not sua sponte ordering a continuance as a result of the Commonwealth's failure

to disclose potentially exculpatory evidence. For the reasons set forth herein, we

affirm.

I . FACTS

In August 2004, Cord Thurman, Appellant's son, met M.W., the 15-yearold victim in this matter. Cord and M.W. began dating . A few weeks into the

relationship, Cord and M.W . started having sex at Appellant's residence, where

Cord lived with Appellant and Nora Thurman, Appellant's girlfriend .
The events that followed are in dispute. On one occasion, Appellant

allegedly walked into Cord's bedroom while he was having sex with M .W . M.W .

testified that Appellant said he had been watching them through the window and

that the only way they could continue having sex was if he could watch .

Appellant denies watching Cord and M.W. having sex.

According to M.W., on October 19, 2004, Appellant walked into Cord's

bedroom while he was having sex with M.W . and stood over the bed. M.W.

testified that Appellant pulled down his pants and made M.W . kiss his penis.

Appellant purportedly told Cord that he was doing it wrong and to get up.

Appellant allegedly got on top of M.W., told Cord to hold the door shut so that

Nora could not come in, and began kissing M .W.'s breasts . M.W. stated that

Appellant pinned her arms down while he forced her to have sex. M .W. further

testified that she could not push Appellant off and was unable to scream . The

incident was reported to the police on October 31, 2004.

Appellant denies raping M.W. Cord testified that Appellant did not have

sex with M.W . According to Cord, Appellant caught him and M.W . having sex,

reported it to Nora, and threatened to ground him .

Appellant was charged in the Cumberland Circuit Court with rape in the

first degree, sodomy in the first degree, and use of a minor in a sexual

performance. The jury found Appellant guilty of all three charges . He was

sentenced to 20 years imprisonment, and this appeal followed .

11 . ANALYSIS

On the first day of trial, prior to the jury being empanelled, defense

counsel approached the bench after announcing that the defense was ready.
Defense counsel informed the trial judge that she had just found out that the

Commonwealth was in possession of exculpatory evidence that it failed to

disclose to Appellant. Cathy Lay, M.W.'s aunt, apparently informed defense

counsel fifteen minutes earlier that M.W. had told her that Appellant did not rape

M.W . According to Lay, M.W. had sex with Appellant in exchange for clothing.

Lay indicated that she had provided the Commonwealth Attorney's office with the

potentially exculpatory evidence two weeks earlier .

Commonwealth's Detective Patty Rich was called to the bench. Rich

stated that Lay had contacted her with allegations that M.W . had sex with

Appellant in exchange for clothing. However, Rich claimed that Lay did not

mention how she had gotten this information .

Appellant moved to dismiss the charges, arguing that the Commonwealth

violated the discovery agreement by failing to provide the defense with

exculpatory evidence in its possession . The trial court denied Appellant's motion

and noted his objection for the record.

During the trial, Lay was called to testify as a witness for the defense.

Apparently, M.W . had made conflicting statements to Lay about the alleged rape.

M.W. first told Lay that Appellant had raped her then later stated that she had not

been raped.

At no point did defense counsel ask the trial court for a continuance under

RCr 9.44 . Thus, Appellant argues that the trial court erred by not sua sponte

ordering a continuance. Specifically, Appellant alleges a violation of due process

because defense counsel "did not have time to adequately evaluate this

evidence and properly prepare for trial with the full knowledge of the evidence."
Appellant's argument is not preserved for appeal . See Hilsmeier v.

Chagman , 192 S.W.3d 340, 345 (Ky. 2006) (holding that claims must be

presented to the trial court in order to be preserved for appellate review) .

Therefore, we may review only for palpable error pursuant to RCr 10.26 . A

palpable error exists if, upon consideration of the entire case, there is a

substantial possibility that the outcome would be different had the error not

occurred . Schoenbachler v. Commonwealth, 95 S.W.3d 830, 836 (Ky. 2003) .

Appellant cites no authority that requires a trial court to sua sponte order a

continuance under these circumstances . The United States Supreme Court in

Brady v. Maryland , 373 U .S. 83, 83 S. Ct. 1194, 10 L . Ed. 2d 215 (1963), held

that the prosecution's suppression of evidence favorable to an accused on

request violates due process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the prosecution .

However, "Brady only applies to `the discovery, after trial , of information which

had been known to the prosecution but unknown to the defense."' Bowling v.

Commonwealth , 80 S.W.3d 405, 410 (Ky. 2002) .

We find no error here, palpable or otherwise . No Brady violation occurred

because the defense obtained knowledge of the potentially exculpatory evidence

prior to the jury being empanelled. Moreover, because Lay testified at trial for the

defense, we find no manifest injustice . See RCr 10.26 ("appropriate relief may

be granted upon a determination that manifest injustice has resulted from the

error") . The trial court thus had no obligation to sua sponte order a continuance.

See Shegog v. Commonwealth , 142 S .W .3d 101, 109 (Ky. 2004) (holding that
the decision to grant a continuance lies within the sound discretion of the trial

court).

111 . CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court.

All sitting . All concur. .
COUNSEL FOR APPELLANT

Shelly R . Fears

Assistant Public Advocate

Dept. of Public Advocacy

100 Fair Oaks Lane, Suite 301

Frankfort, KY 40601

COUNSEL FOR APPELLEE

Gregory Stumbo

Attorney General of Kentucky

Jason Bradley Moore

Assistant Attorney General

Office of the Criminal Appeals

Attorney General's Office

1024 Capitol Center Drive

Frankfort, KY. 40601