Opinion
NO. 2014-CA-001812-MR
01-15-2016
DALE BROWN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Gene Lewter Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM NELSON CIRCUIT COURT
HONORABLE JOHN DAVID SEAY, JUDGE
ACTION NO. 13-CR-00188 OPINION
AFFIRMING BEFORE: DIXON, NICKELL AND VANMETER, JUDGES. DIXON, JUDGE: Dale Brown appeals as a matter of right, Ky. Const. § 110(2) (b), his conviction of fourth-degree assault, whereby he was sentenced by the Nelson Circuit Court to twelve months imprisonment. For the reasons stated herein, we affirm.
On the afternoon of July 2, 2013, the victim in this case, Tim Kennedy, and his friend, James Wimsett, decided to eat at a Subway restaurant in New Haven, Kentucky. Another friend, William S. Nally, saw Kennedy and Wimsett at the restaurant and decided to join them for lunch. According to the Commonwealth's witnesses' uncontroverted version of the events, while the three were eating, Brown entered the restaurant, approached Kennedy, and asked to speak with Kennedy outside. Kennedy declined. After the three friends finished eating, they exited the restaurant and encountered Brown waiting outside. Upon seeing Kennedy, Brown began yelling and gesturing, claiming that Kennedy owed him money and needed to pay him immediately.
An altercation ensued in which Kennedy was knocked to the ground unconscious. Brown then straddled Kennedy punching him in the face four or five times. At some point, Brown reached into Kennedy's pocket and retrieved a small pocket knife, which he tossed across the restaurant's parking lot. The police were called and arrived shortly thereafter. After the police finished interviewing Kennedy, he was transported by ambulance to the local hospital. According to medical reports, Kennedy suffered lacerations to both sides of his lip and to the back of his head, one eye was blackened and swollen, his nose was fractured, three teeth were missing, and one tooth was loose.
On August 21, 2013, Brown was indicted by a Nelson County grand jury for 1) assault in the second degree, and 2) being a persistent felony offender in the second degree. On October 8, 2014, Brown was tried before a jury, which found him guilty of the lesser offense of fourth degree assault, a Class A misdemeanor. Brown was sentenced to twelve months' imprisonment and released for time served. Brown now appeals his conviction and sentence. Other facts will be discussed as they relate to particular arguments in this appeal.
On appeal, Brown argues that the trial court erred by failing to grant his motions for a mistrial after witnesses made reference to his criminal past. He also argues that the cumulative effect of all of the inadmissible testimony mandates the reversal of his conviction. The Commonwealth argues that any error was harmless. This issue was properly preserved for appellate review by Brown's objections to the testimony and contemporaneous motions for a mistrial.
Brown claims that on three separate instances, Commonwealth witnesses gave inadmissible, highly prejudicial testimony warranting a mistrial. The first instance occurred during the cross-examination of Wimsett. After a question was posed by defense counsel regarding Wimsett's impression of what he thought was going to happen while Brown and Kennedy were talking inside of the Subway, Wimsett testified that he did not think Brown would do anything because of his prior history. Brown immediately objected to this testimony as improper character evidence and requested a mistrial. The trial court sustained the objection, but Brown's motion for a mistrial was overruled. The court admonished the jury not to consider Wimsett's response.
The second instance occurred during the direct examination of Kennedy. The Commonwealth asked Kennedy to describe what happened when Brown walked into the Subway. During Kennedy's response, he stated that he thought Brown "was broke and needed to get high." Defense counsel objected again on the ground that the testimony was improper character evidence. The trial judge agreed and sustained the objection. Defense counsel requested an admonishment and the trial judge admonished the jury not to consider Kennedy's statement.
The third and final instance of which Brown complains occurred during the cross-examination of Kennedy. The following colloquy between defense counsel and Kennedy occurred:
Defense counsel: So, when Dale was in the Subway first, he said, 'I want to talk to you' and mentioned money, correct?
Kennedy: he said, 'I need to speak to you outside.' I said, 'I don't have anything to talk to you about outside.' We can talk here. Nothing happened in front of anybody, so let's just talk right here.' Because I could tell he was puffed up and mad or something, I don't know what.
Defense counsel: Now, Mr. Kennedy, he never said that he was going to punch you at that time, did he?
Kennedy: At that time. No. The only thing he—the statement I made earlier—is he didn't threaten me in front of everybody. He said, 'You're going to talk to me outside.' I said, 'Dale, if you want to talk to me, talk to me here. I'm not a street fighter. I didn't—I didn't fight in prison for cigarettes like you did, and I'm not going to go out and fight you. I know you can whip me.'
Defense counsel once again objected to the improper character evidence and the objection was once again sustained. For a third time defense counsel moved for a mistrial, but the trial court again denied the request. However, this time the court warned the Commonwealth that another instance of a witness offering unsolicited testimony regarding inadmissible evidence could lead to a mistrial. The Court once again admonished the jury to not consider Kennedy's nonresponsive answer concerning Brown's time in prison, and the trial resumed with no further unsolicited prejudicial revelations from the Commonwealth's witnesses.
Brown argues that the admonitions given to the jury were insufficient to cure the prejudicial effect that the inadmissible testimony had on the jury. He believes that the statements made by Kennedy and Wimsett were so prejudicial it made it impossible for him to receive a fair trial. We disagree.
A mistrial is an extreme remedy and should be resorted to only when there is a fundamental defect in the proceedings and there is a manifest necessity for such an action." Woodard v. Commonwealth, 147 S.W.3d 63, 68 (Ky. 2004). "[The] purpose of this standard is to reserve the extraordinary relief of declaring a mistrial for situations in which an error has been committed that is of such magnitude that [the] litigant would be denied a fair and impartial jury absent a new trial." Shabazz v. Commonwealth, 153 S.W.3d 806, 810-811 (Ky. 2005). For the purpose of appellate review, the trial judge is always recognized as the person best situated to properly evaluate ... when a mistrial is required." Kirkland v. Commonwealth, 53 S.W.3d 71, 76 (Ky. 2001). Accordingly, a trial court's decision to declare or deny a mistrial should not be disturbed absent an abuse of discretion. Clay v. Commonwealth, 867 S.W.2d 200, 204 (Ky. App. 1993).
Wimsett's statement that Brown had a "prior history" and Kennedy's statement that Brown had to fight for cigarettes in prison were improper. Both nonresponsive answers could have been calculated to direct the jury's attention to the fact that Brown had some sort of prior criminal history. It is certainly arguable that in this case the disputed testimony from the Commonwealth's witnesses violated KRE 404(b). KRE 404(b) states:
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible:The objectionable testimony was not offered for an approved purpose under KRE 404(b) (1), nor was it inextricably intertwined with other evidence under KRE 404(b) (2). Therefore, the statements were inadmissible.
(1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; or
(2) If so inextricably intertwined with other evidence essential to the case that separation of the two (2) could not be accomplished without serious adverse effect on the offering party.
Kennedy's statement to the effect of Brown needing the money to get high was also clearly inadmissible. Even if the reason Kennedy believed Brown needed the money were relevant evidence, the prejudicial effect of the evidence outweighed its probative value. KRE 403.
Here, the inadmissible evidence was introduced through the non-responsive answers of the Commonwealth's witnesses. The Supreme Court of Kentucky has held that "[w]here...evidence of other crimes is introduced into evidence through the non-responsive answer of a witness, [a reviewing] court must look at all of the evidence and determine whether the defendant has been unduly prejudiced by that isolated statement. Matthews v. Commonwealth, 163 S.W.3d 11, 18 (Ky. 2005) (quoting Phillips v. Commonwealth, 679 S.W.2d 235, 237-38 (Ky. 1984)).
We do not view the vague references to Brown's prior jail time and drug use to be unduly prejudicial in light of the evidence in this case. The prosecution introduced the testimony of the victim and two eye witnesses to the crime. It also introduced surveillance video corroborating the witnesses' version of events. Brown did not deny that he struck Kennedy or that he injured Kennedy. Instead, Brown attempted to introduce evidence, through the Commonwealth's witnesses, that he was acting in self-defense. The only proof Brown introduced was the testimony of his witnesses who testified that Kennedy had a reputation for violence, and the testimony of a witness who claimed that Kennedy rammed into her car while she was parked in Brown's driveway.
While the jury, through the unsolicited remarks from Wimsett and Kennedy, was made aware that Brown had been in prison before, they did not know for how long or for what reason. "[B]ecause the jury could have assumed that [Brown] had been [incarcerated] for any number of relatively minor crimes, the testimony was not 'inflammatory', both references to [Brown's previous incarceration] lacked any description of the underlying offense." See Sherroan v. Commonwealth, 142 S.W.3d 7, 17 (Ky. 2004) (multiple references to defendant's probation status was cured by admonition). Additionally, the isolated reference to Brown needing the money to get high was speculative testimony made by the obviously biased victim in the case. The trial judge immediately admonished the jury on each occasion that they were not to consider the testimony when deciding whether or not Brown committed the crimes with which he was presently charged. No further mention was made of Brown's prior incarceration or of any alleged drug use. "A jury is presumed to follow an admonition to disregard evidence and the admonition thus cures any error." Johnson v. Commonwealth, 105 S.W.3d 430,441 (Ky. 2003). We do not view the non-pervasive evidentiary errors in this case as the types that cannot be easily cured by admonition to disregard the testimony.
In 1989, Brown was convicted of capital murder and first -degree arson and sentenced to 300 years imprisonment. According to the trial judge in this case, Brown was one vote shy of receiving the death penalty. --------
There are two circumstances in which the presumption of the efficacy of an admonition can be rebutted: 1) when there is an overwhelming probability that the jury will be unable to follow the court's admonition and there is a strong likelihood that the effect of the inadmissible evidence would be devastating to the defendant, or 2) when the question was asked without a factual basis and was "inflammatory" or "highly prejudicial." Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003).
In Johnson, the Supreme Court of Kentucky found that the prosecutor's reference to a defendant's prior guilty plea was not so "devastating" as to rebut the presumption that the jury followed the judge's admonition. Id. In this case, the second exception is inapplicable because the statements were nonresponsive answers to questions that had a factual basis. Under the first exception, similar to Johnson, we find that the brief, casually made references to Brown once being in jail and "needing the money to get high" are insufficient to establish the "overwhelming probability" that the jury would be unable to follow the trial judge's admonitions. Nor was there a strong likelihood that these isolated references were "devastating" to Brown's case. The jury rendered a fair and impartial verdict based on the admissible evidence.
The trial judge, exercising his sound discretion, determined that the admonitions in this case were sufficient to cure the effects of the erroneous testimony. The trial court has broad discretion in determining when a manifest necessity for a mistrial exists because the trial judge is "best situated intelligently to make such a decision." A trial court's decision to deny a motion for a mistrial should not be disturbed absent an abuse of discretion. Matthews v. Commonwealth, 163 S.W.3d 11, 17-18 (Ky. 2005). Brown has offered no proof that the immediate admonitions were insufficient. Therefore, the admonitions cured the errors. Because the admonitions cured the errors, we cannot say that the trial court abused its discretion when it denied Brown's requests for a mistrial.
Brown argues that the cumulative effect of the alleged errors resulted in his receiving an unfair trial. Cumulative error is only found "where the individual errors were themselves substantial, bordering, at least on prejudicial. Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010). We are of the opinion that each error about which Brown complains was cured by the trial court's admonishment. There being no individual error, there can be no cumulative error. See Sanborn v. Commonwealth, 975 S.W.2d 905, 913 (Ky. 1998) (overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009)).
For the foregoing reasons, the judgment of the Nelson Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Gene Lewter
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky