Wrenda B. Gallien v. Hon F. Kenneth Conliffe Judge, Jefferson Circuit Court ( 2006 )

JMPORTANT N-0 E
NOT TO BE PUBLISHEDOPINION
THIS OPINION IS DESIGNA TED "NOT TO BE
PUBLISHED. f' PURSUANT TO THE RULES OF
CIVIL PR 0CED URE PR OMUL GA TED B Y THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOTBE
CITED OR USED AS A UTHORITYIN ANY OTHER
CASE INANY COURT OF THIS STA TE.
RENDERED : SEPTEMBER 21, 2006
NOT TO BE PUBLISHED
,$uyrrmt Courf of
2005-SC-000792-MR
WRENDA B. GALLIEN APPELLANT
ON APPEAL FROM THE COURT OF APPEALS
V. 2005-CA-001148-M R
HON. F. KENNETH CONLIFFE, JUDGE,
JEFFERSON CIRCUIT COURT, ET AL. APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
In this original action in the Court of Appeals, Appellant, Wrenda B.
Gallien, petitioned for a writ prohibiting the Jefferson Circuit Court from retrying her after
the Circuit Court granted a mistrial . The Court of Appeals denied the writ, holding that
the trial court's decision to declare a mistrial was manifestly necessary. Appellant now
seeks review of the order of the Court of Appeals as a matter of right.' For the reasons
stated herein, we affirm the denial of the writ.
The facts, as well stated by the Court of Appeals, are as follows:
In November 2003, the Jefferson County Grand Jury
issued an indictment against Wrenda B. Gallien, charging
her with thirteen (13) counts of prohibited activities relating to
controlled substances, fifteen (15) counts of complicity to
obtain or attempting to obtain a controlled substance by
fraud or deceit, and nine (9) counts of wrongfully filling
' Ky. Const. § 115 .
prescriptions. The Jefferson Circuit Court selected a jury
and commenced a jury trial in this matter on September 22,
2004.
The events relevant for this petition occurred on the
third day of trial. During the trial proceedings on September
24, 2004, the respondent, Judge F. Kenneth Conliffe,
counsel for the Commonwealth and counsel for the
defendants2 were engaged in a conference at the bench . At
this bench conference, counsel for the Commonwealth
indicated that it would close its case against the defendants
after presenting one additional witness to the court. After
this bench conference, a deputy sheriff requested to speak
with the respondent in his chambers . At this point, the
proceedings were recessed and the jury excused from the
courtroom.
Upon his return to the courtroom, respondent
informed the deputy sheriffs that the jury should remain
outside the courtroom . Respondent then proceeded to
inform counsel that the deputy sheriff had informed the court
that, during the bench conference, a girl left her seat in the
gallery, approached Gallien, got her attention and presented
Gallien with a stuffed animal . Gallien accepted the stuffed
animal from the girl . This exchange occurred in the
presence of the jury and was captured on the video record of
the trial . Respondent played the video record of these
events to counsel .
After playing the videotape, respondent ordered the
girl's father, Steven Deluka, to testify concerning the events
that occurred during the bench conference . Deluka testified
that his daughter wanted to give a small stuffed dog name
"Courage" to Gallien for support. Deluka acknowledged that
he and his daughter are friends of Gallien and that Deluka's
daughter had no opportunity prior to this bench conference
in which to give this stuffed toy to Gallien. Deluka denied
planning this event with defense counsel or with Gallien .
Respondent then called Deputy Sheriff Clifford Gagel
to testify . Deputy Gagel testified that he and Deputy George
Thornton had observed the girl leave her seat in the gallery
and approach the courtroom bar, yet neither deputy reacted
to the girl. Deputy Gagel observed the girl getting Gallien's
attention during the bench conference and presenting her
with the stuffed animal. Deputy Gagel informed the court
2 Appellant was being tried with a co-defendant. The co-defendant is not named in this
matter as he was not a party to the original action in the Court of Appeals, nor is he a
party in this appeal.
that he noticed that members of the jury panel took note of
this event.
Deputy Thornton also testified during the court's
investigation of this matter. Deputy Thornton testified that he
was helping Deputy Gagel with courtroom security for this
trial because the court had previously had problems with
Gallien's family members distracting the proceedings .
Deputy Thornton stated that he observed Deluka talking with
his daughter and that Deluka was pointing upward. After this
conversation, the girl walked to the courtroom's bar and
ultimately gave the stuffed animal to Gallien. Deputy
Thornton further testified that the girl's actions were not
spontaneous, but were the direct result of Deluka's direction .
In response to a question from defense counsel, Deputy
Thornton stated that it appeared Gallien did not know that
the girl was going to present her with a stuffed toy during
trial.
After replaying the videotape and hearing testimony
from Deluka, Deputy Gagel and Deputy Thornton,
respondent issued the following statement from the bench:
"There have been difficulties during this week with
some members of the gallery, for a better term, making
audible comments, signs, things of that nature, body
language, while we were presenting matters and many times
typically when we've come to the bench, the deputies have
reported they have had to advise these people to tone it
down so to speak. This individual [Deluka] who was on the
stand has been here from day one, he was in the box during
when we were doing voir dire . We had a little difficulty with
him because, while it was innocent in the sense that I guess
he wanted to use the restroom while we were doing voir dire,
during that time he left the jury box and went back into the
secure area at a time after the secure area had been closed .
There was no staff back there and he apparently just used
the restroom, but was confronted at that point and told about
the rules. And has been here, by the Court's observation,
the deputies' observation, ever since. I'm extremely
concerned as indicated because there have been issues
raised in this case in opening statement about matters which
the defendant has done good things for people and the
Commonwealth has contended that's not the issue. The
issue is whether or not she violated the law as it relates to
prescriptions, and now we have this action which I do
believe was not brought about as any plan of the defense
team, but certainly has an effect on the jury since they
clearly saw what went on . And I don't know if it was staged
by this member of the gallery. It certainly wasn't
spontaneous since obviously his 10 year old child brought
along a toy to a courtroom on a day when I would expect
most 10 year old children to be in school and the jury totally
saw that."
The Commonwealth then moved the circuit court to
declare a mistrial on grounds that the actions undertaken by
Deluka's daughter unduly prejudiced the Commonwealth .
Gallien, by counsel, objected to the motion. The trial court
granted the Commonwealth's motion for a mistrial over
Gallien's objection .
After declaring a mistrial, Judge Conliffe ordered that Gallien be retried .
Thereafter, the Commonwealth re-indicted Gallien, amending the original charges and
adding new ones . At or about the same time, Gallien sought a writ of prohibition from
the Court of Appeals prohibiting Judge Conliffe from conducting a retrial because of
double jeopardy concerns. The Court of Appeals held that Appellant did not have an
adequate remedy on appeal, but that the trial court did not abuse its discretion in
granting the mistrial .
"A writ of prohibition is an ``extraordinary remedy and we have always been
cautious and conservative both in entertaining petitions for and in granting such relief. "4
Writ cases are divided into two classes, whereby a lower court is either acting without
jurisdiction, or acting erroneously within its jurisdiction . Although not specifically stated
by Appellant, we assume'that she contends the case at bar falls into the
aforementioned latter class of cases . A writ of this type will not ordinarily be granted,
3 A new indictment was returned against Gallien in March 2005 to correct errors in
Counts 10 through 13 of the November 2003 indictment. The March 2005 indictment
also added new charges of obtaining drugs by fraud or deceit as well as tampering with
4pphysical
hysical evidence .
Mutual Ins. Co. v. Trude , 151 S .W.3d 803, 808 (Ky. 2004) (gotin Bender v.
Eaton , 343 S.W.2d 799, 800 (1961)).
5 Id.
unless Appellant can show, as conditions precedent, that she "(a) had no adequate
remedy by appeal or otherwise, and (b) would suffer great and irreparable injury (if error
has been committed and relief denied) ."6 This Court has "consistently (apparently
without exception) required the petitioner to pass the first test ; i.e ., he must show he has
no adequate remedy by appeal or otherwise ."' Appellant must then satisfy the
requirements of the second test, by showing great and irreparable injury.8
We agree with the Court of Appeals, in that Appellant would have no
adequate remedy by appeal, because if the trial court's decision to declare a mistrial is
declared erroneous, double jeopardy would attach if Gallien were tried again .
Furthermore, we have held that "double jeopardy is an appropriate subject for a writ of
prohibition ."9 We find no error in this assessment .
We therefore will examine the Court of Appeals' analysis of the second
prong of the test (great and irreparable injury), and we do so using a clear error
review.' ° The trial court found that the stuffed animal incident, coupled with ongoing
disruptions from the gallery, rose to the level of manifest necessity for a mistrial .
"Whether to grant a mistrial is within the sound discretion of the trial court, and ``such a
ruling will not be disturbed absent . . . an abuse of that discretion."' "A mistrial is an
extreme remedy and should be resorted to only when there appears in the record a
6 Id . (uotin Bender, 343 S.W .2d at 801) (emphasis in original) .
Bender , 343 S .W.2d at 801 .
8 _Id .
9 St. Clair v. Roark, 10 S .W.3d 482, 485 (Ky. 2000).
"5G-range Mutual Ins. Co. , 151 S .W.3d at 8-10.
" Bray v. Commonwealth , 177 S.W .3d 741, 752 (Ky. 2005) ( uotin Woodard v.
Commonwealth , 147 S .W.3d 63,68 (Ky. 2004)).
manifest necessity for such action or an urgent or real necessity ." "The occurrence
complained of must be of such character and magnitude that a litigant will be denied a
fair and impartial trial and the prejudicial effect can be removed in no other way." 13
The trial judge determined that the act of the girl giving the stuffed animal
to Appellant, at her father's apparent direction, and in full view of the jury created an
atmosphere in which the Commonwealth could no longer receive a fair trial. We also
note that the trial judge determined that the cumulative effects of the disruptions from
members of the gallery added to the necessity of declaring the mistrial . The disruptions
were of such an apparent magnitude an extra deputy was brought in to assist in
maintaining order during the trial. A trial court has the authority to grant a mistrial based
on courtroom misconduct, 14 and were this not the rule spectators could influence juries
without a trial court possessing the ability to remedy the situation . "The trial judge was
in the best position to determine whether any remedial action was necessary to
preserve decorum and ensure a fair trial . "15
Appellant argues that the trial court had a duty to try and remedy the
prejudice to the jury through other alternatives (e.g., an admonition or sanctions against
the offending spectators), before a mistrial should have been granted. However, when
a trial court clearly believes other alternatives will not remedy the prejudice, he has no
duty to attempt such alternatives . In this case the trial judge believed any attempt to
remedy the prejudice would have been futile.
'2
Id. (citing Skaggs v. Commonwealth, 694 S.W.2d 672, 678 (Ky. 1985)).
13
Gould v. Charlton Co. , 929 S .W.2d 734, 738 (Ky. 1996) .
14
See Raney v. Commonwealth , 287 Ky. 492,153 S.W.2d 935 (Ky. 1941) .
15 Wilson v. Commonwealth, 836 S .W.2d 872, 890 (Ky. 1992) .
The Court of Appeals did not abuse its discretion in denying the writ. Its
opinion is affirmed .
Lambert, CJ, and Graves, Minton, Roach, Scott, and Wintersheimer, JJ .,
concur. McAnulty, J ., dissents by separate opinion .
COUNSEL FOR APPELLANT :
Kevin C. Burke
125 South Seventh Street
Louisville, KY 40202
Steven R. Romines
ROMINES, WEIS & YOUNG, P.S.C.
600 West Main Street, Suite 100
Louisville, KY 40202
COUNSEL FOR APPELLEES :
Hon. F. Kenneth Conliffe
Judge, Jefferson Circuit Court
Hall of Justice
600 West Jefferson Street
Louisville, KY 40202
Gregory D. Stumbo
Attorney General of Kentucky
118 Capitol Building
Frankfort, KY 40601
Ruth E. Lerner
Jeanne Deborah Anderson
514 West Liberty Street
Louisville, KY 40202-2887
RENDERED : SEPTEMBER 21, 2006
NOT TO BE PUBLISHED
Q
'vuyrrme Courf of ~irufurhV
2005-SC-0792-MR
WRENDA B . GALLIEN APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. 2005-CA-1148-MR
HON . F . KENNETH CONLIFFE, JUDGE,
JEFFERSON CIRCUIT COURT, ET AL APPELLEE
DISSENTING OPINION BY JUSTICE McANULTY
Respectfully, I dissent from the Majority's Opinion affirming the denial of the writ
of prohibition . In my opinion, the trial court's decision to declare a mistrial after a girl
presented a stuffed animal to Gallien during a bench conference in an otherwise calm
courtroom was not manifestly necessary, especially in light of the court's stated belief
that this presentation had nothing to do with the defense team. I believe the prejudicial
effect, if any, of this gesture could have been removed by an admonition to the jury
and/or a jury instruction and/or removal of the girl and her father from the audience.
Such measures should have been sufficient to protect the substantial rights of the
Commonwealth against the influence or cumulative influence of the bystanders . See
Miller v. Commonwealth , 240 Ky. 346, 42 S.W.2d 518, 522 (Ky. 1931) (holding that trial
court's act of sounding of gavel and statements (1) rebuking the audience for
demonstration during the Commonwealth's closing argument, which included hollering,
clapping hands and stamping feet that could be heard a distance of 300 to 400 feet
from the courthouse ; (2) admonishing the audience that courtroom would be cleared if
such behavior continued; and (3) admonishing the jury that such conduct had nothing to
do with the trial were sufficient to protect the substantial rights of the defendant).
Under the circumstances of this case, I believe the trial court abused its
discretion . As outlined above, the ends of substantial justice could have been achieved
in a number of ways far short of declaring a mistrial. See Gosser v. Commonwealth , 31
S .W.3d 897, 906 (Ky. 2000).