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Just one day after a Trimble County jury began hearing testimony in the rape/sexual abuse case against Bedford resident Marion “Frank” McCane Sr., Circuit Court Judge Karen Conrad called a mistrial.
McCane defense attorney Tobi Shartzer said the mistrial was the result of a misunderstanding over suppression of information that was introduced during his cross-examination of the first witness, Kentucky State Police Detective Todd Harwood.
While questioning Harwood, Shartzer asked if the detective’s background check of the alleged victim had included looking into similar allegations made by the victim in a case that played out in a Georgia court.
Shartzer said the judge had ruled before the trial that any information about the Georgia case was “inadmissible in its entirety.” He said he had understood that mentioning the case was only inadmissible when the alleged victim was on the witness stand.
He said based on that ruling, Baxter requested a mistrial. The request was granted Tuesday morning, when court was set to resume at the Oldham County Courthouse.
A new trial is scheduled to begin March 21 at Trimble County.
The 65-year-old McCane was standing trial for 19 sex-related counts, ranging from first-degree rape to second-degree sodomy. Originally, he was indicted on one charge of first-degree rape that stemmed from an alleged incident reported in April 2008.
Court records indicate that the alleged victim, a 13-year-old girl, accused McCane of the abuse in early April 2008. KSP filed the additional charges in the May indictment after subsequent interviews with the girl and other witnesses revealed the alleged abuse may have begun as early as 2002, when she was 8 years old.
KSP Detective Todd Harwood was the first to address the jury from the witness stand late Monday afternoon, as Commonwealth’s Attorney D. Berry Baxter questioned him about his initial interview with McCane, a few days after the allegations were made.
Harwood said McCane voluntarily met with him at KSP Post 5 in Campbellsburg, Ky., on April 9, 2008. Portions of their conversation were recorded, Harwood said, after McCane verbally admitted to fondling the girl in his bedroom.
The two recorded segments, the first lasting three minutes, 21 seconds, and the second about four minutes, were replayed for the jury. In the tapes, Harwood seems to be asking McCane to clarify or verify statements he had made when the tape recorder was off.
In each tape, Harwood first asks McCane to verify his own signature on a document outlining his Miranda rights, which include the right not to speak without an attorney present. McCane had waived that right.
“He was willing to continue talking,” Harwood told the jury.
In the tapes, McCane confirms that he told Harwood he had fondled the girl under her nightgown and that he briefly had sexual contact with her genital area. In the recording, McCane is heard denying that his contact with the victim that night went any further than that.
McCane also states that he immediately began apologizing to the victim and promised her it would never happen again. “I cried for three hours afterward,” he said on the tape.
Upon cross-examination, Shartzer asked Harwood if a background check of the alleged victim included research into the Georgia case, in which one of the victim’s grandfathers was accused of similar crimes that allegedly occurred in 2001. The grandfather was acquitted in that case.
Baxter objected, and Conrad sustained it. After meeting with the attorneys in closed chambers, Conrad returned to the courtroom and ended the day’s session.
She dismissed the jury, admonishing them to disregard Shartzer’s last question to Harwood.