James L. Sneed Jr v. Hon Rodney Burress Judge, Bullitt Circuit Court ( 2016 )

RENDERED: MARCH 17, 2016
TO BE PUBLISHED
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2015-SC-000169-MR
JAMES L. SNEED, JR. APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2014-CA-001786
BULLITT CIRCUIT COURT NO. 12-CR-00292
HON. RODNEY BURRESS, JUDGE APPELLEES
BULLITT CIRCUIT COURT, ET AL.
OPINION OF THE COURT BY JUSTICE CUNNINGHAM
AFFIRMING
In 2012, Appellant, James L. Sneed, Jr., was indicted by the Bullitt
County grand jury and charged with first-degree rape, first-degree sodomy, and
first-degree incest. The alleged victim was Sneed's granddaughter, referred to
herein as Sarah.' The matter proceeded to trial on July 29, 2014. During her
opening statement, Sneed's attorney commented that Sarah's father—a
scheduled witness for the Commonwealth—used untruthfulness as a
mechanism for revenge. The Commonwealth objected and moved for a mistrial
on the basis that defense counsel-had characterized the witness as a liar. 2
I A pseudonym is being used to protect her anonymity.
2 This portion of defehse counsel's opening statement has not been presented to
this Court. Therefore, it is unclear the extent to which defense counsel characterized
the witness as a liar.
After a lengthy and thorough discussion of relevant case law outside of
the presence of the jury, the trial court denied the mistrial motion. The court
then admonished the jury to disregard defense counsel's characterization of a
particular witness as a liar and that only the jury can make credibility
determinations. Sneed's attorney continued her opening statement,
commenting as follows:
The other way we can look back now and think to ourselves maybe
this isn't very reliable is that in this counseling that [Sarah] has
been involved in, that we've talked about, there are notes about
[Sarah's] trouble with lying. This is a known issue.
The Commonwealth objected and again moved for a mistrial. After another
lengthy discussion of the matter outside of the presence of the jury, the court
granted the mistrial motion. The case was subsequently scheduled for retrial.
Sneed filed a Motion to Prohibit Retrial and Dismiss the Indictment. He
argued that there was no manifest necessity for granting the mistrial and that
retrial would violate his constitutional right to be free from double jeopardy.
The trial court denied the motion to dismiss. Sneed filed a writ of prohibition
with the Court of Appeals requesting an order prohibiting the trial court from
retrying him. The Court of Appeals denied the writ and Sneed appealed to this
Court. Having reviewed the facts and the law, we affirm the Court of Appeals'
denial of the writ and remand this case to the trial court for retrial.
Analysis
An appellate court has discretion to grant a writ where a trial court is
proceeding within its jurisdiction upon a showing that the court is: 1) acting or
is about to act erroneously; 2) there exists no adequate remedy by appeal or
2
otherwise, and 3) great injustice and irreparable injury will result if the petition
is not granted. Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004). We review the
Court of Appeals' determination under an abuse of discretion standard.
Sowders v. Lewis, 241 S.W.3d 319, 322 (Ky. 2007).
The first issue to be addressed is whether a writ of prohibition is the
appropriate form of relief in this case. We held in St. Clair v. Roark that
"although double jeopardy is an appropriate subject for a writ of prohibition, it
is not mandatory that it be addressed in that context." 10 S.W.3d 482, 485 (Ky.
2000). The Court continued as follows:
The court in which the petition is filed may, in its discretion,
address the merits of the issue within the context of the petition for
the writ, or may decline to do so on grounds that there is an
adequate remedy by appeal. Neither approach is mandatory and
the exercise of discretion may well depend on the significance of
the issue as framed by the facts of the particular case. Because of
the importance of the issue raised by St. Clair, and because the
issue is well framed by the facts of this case, the majority of this
Court deems it appropriate to address the issue now rather than
delay resolution until a possible appeal. Id.
Like in St. Clair, it is appropriate here to address the issue now rather than
delay resolution.
Jeopardy attaches when the jury is impaneled and sworn. Cardine v.
Commonwealth, 283 S.W.3d 641, 645-47 (Ky. 2009). It is undisputed that the
jury was impaneled and sworn here. Once jeopardy attaches, Cardine
instructs as follows:
[the] prosecution of a defendant before a jury other than the
original jury or contemporaneously-impaneled alternates is barred
unless 1) there is a 'manifest necessity' for a mistrial or 2) the
3
defendant either requests or consents to a mistrial. Id. at 647
(citation omitted).
It is also undisputed that Sneed did not request or consent to the mistrial.
Thus, retrial is barred unless there was manifest necessity for the mistrial.
When determining whether there was manifest necessity to declare a
mistrial, we must consider whether the statements made by Sneed's attorney
constitute "improper evidence which prejudice[d] the Commonwealth's right to
a fair trial." Grimes v. McAnulty, 957 S.W.2d 223, 224 (Ky. 1997) (citations
omitted). It is also critical to note that "a finding of manifest necessity is a
matter left to the sound discretion of the trial court." Commonwealth v. Scott,
12 S.W.3d 682, 684 (Ky. 2000).
Sneed contends that his defense was that Sarah was lying and that the
rules of evidence permit him to demonstrate Sarah's history of lying.
Therefore, Sneed argues that by not allowing his counsel to comment on the
credibility of a witness, the trial court denied him the right to present a
defense. The contested comments made by Sneed's counsel in her opening
statement referenced notes from Sarah's therapist concerning Sarah's alleged
untruthfulness. These sealed records documented Sarah's treatment at Seven
Counties Services. The issue of lying was noted in two separate documents
detailing two separate treatment sessions. One of those reports indicates that
Sarah's aunt expressed concern about Sarah's alleged untruthfulness
regarding minor matters.
It is unclear whether the victim's aunt was scheduled to be called as
character or fact witnesses for either party, or whether the therapist would
4
have qualified as an expert if called to testify. See KRE 405; KRE 702; and
KRE 703. However, Sneed argues that the victim's "aunt and the therapist
were under subpoena in the event that they were needed for impeachment."
Sneed further asserts that Inlo rules would have stopped defense counsel from
asking Sarah if she had a history of lying about things as simple as what she
had for breakfast." If Sarah denied this, Sneed contends that Sarah's "aunt or
the therapist could have been called for purposes of impeachment."
Sneed specifically cites KRE 608(b) as a mechanism for introducing this
evidence. However, KRE 608(b) "limits the attack . . . to cross-examination,
meaning that the cross-examiner is bound by the witness's answer and is not
authorized to contradict that answer by introduction of what the Rule calls
``extrinsic evidence."' Robert G. Lawson, The Kentucky Evidence Law
Handbook 4.25[4][c], at 319 (5th ed., 2013). Therefore, if Sarah denied any
alleged specific instances of conduct relating to the information contained in
the therapist's notes, then Sneed would not have been able to "impeach" Sarah
by introducing testimony of the therapist or the aunt in order to contradict
Sarah's answers.
It is also critical to note that "KRE 608(b) does not give parties a 'right' to
cross-examine on specific acts found to be probative of
truthfulness/untruthfulness . . . ." Robert G. Lawson, The Kentucky Evidence
Law Handbook § 4.25[4][e], at 320 (5th ed., 2013). Rather, introduction of
specific acts evidence on cross-examination is at "the discretion of the [trial]
court." Id. citing KRE 608(b). Therefore, it is unlikely that the court would
5
have even permitted Sarah to be cross-examined in such a manner under KRE
608(b). In other words, it would seem illogical for the court to admonish
defense counsel's reference to the victim's history of lying during opening
statements, only to allow the same or similar evidence to come in later under
KRE 608(b). In any event, it would have been inadmissible to elicit testimony
from the therapist or Sarah's aunt in order to contradict Sarah's testimony
concerning her alleged history with lying. KRE 608(b).
And although it was not addressed by either party, introduction of the
therapist's notes and testimony would have been barred by either the
counselor-client privilege or the psychotherapist-patient privilege. KRE 506
and KRE 507. More precisely, that information would have been inadmissible
unless Sneed satisfied at least one of the exceptions enumerated in either KRE
506(d) or KRE 507(c). See also Commonwealth v. Barroso, 122 S.W.3d 554 (Ky.
2003) (providing circumstances in which defendant's right to compulsory
process must prevail over the witness's psychotherapist-patient privilege.).
None of the KRE 507 exceptions apply here and the record does not indicate
that a Barroso hearing was ever conducted. Also, there is no indication that
the trial court considered, or was ever asked to consider, the exceptions
presented in KRE 506(d). Thus, there was no way that this evidence could
have been admissible at trial.
Because defense counsel's statements constituted improper evidence
which prejudiced the Commonwealth's right to a fair trial, we cannot say that a
mistrial was an inappropriate remedy here. Grimes, 957 S.W.2d at 224. As
6
previously noted, this determination was within the sound discretion of the
trial court. Scott, 12 S.W.3d at 684.
And while it is well-settled that lolpening and closing statements are not
evidence and wide latitude is allowed in both" Wheeler v. Commonwealth, 121
S.W.3d 173, 180 (Ky. 2003), the law is also clear that In'either expert nor lay
witnesses may testify that another witness or a defendant is lying or faking."
Moss v. Commonwealth, 949 S.W.2d 579, 583 (Ky. 1997) (citation omitted).
This restriction applies to attorneys as well.
It is equally impermissible for an attorney to phrase her remarks so as to
indicate that a witness is lying based on the evidence presented. Of course,
pointing out inconsistencies in a witness's statements and other evidence—and
drawing reasonable inferences therefrom—is entirely permissible to the extent
that it otherwise comports with our rules of practice and procedure. However,
counsel is not permitted to make affirmative conclusions as to the credibility of
a witness. Determining witness credibility "is within the exclusive province of
the jury." Id. (citation omitted).
It is also critical to consider the specific context in which defense
counsel's impermissible statements were received by the jury here. The
remarks by Sneed's attorney that triggered the Commonwealth's second
mistrial motion occurred within minutes after the jury was admonished to
disregard counsel's previous statement indicating that one of the
Commonwealth's witnesses was lying. Prior to that admonition, defense
counsel was instructed by the court not to comment on the truthfulness of any
7
witness and was specifically told not to use the word "lied" when referring to
witnesses. Trial courts must be afforded wide latitude in controlling the
discipline of their own court rooms and orderly trial proceedings. Declaring a
mistrial is an extreme, but sometimes necessary measure available to the trial
arbiter.
An additional factor weighing in favor of sustaining a mistrial is whether
the defendant created the circumstances necessitating the mistrial. United
States v. Gantley, 172 F.3d 422, 430 (6th Cir. 1999). In Gantley, the court held
that there was manifest necessity for a mistrial where defendant, in direct
violation of a court order, introduced evidence that he had taken a polygraph
test which "obviously was to bolster his own testimony, to the prejudice of the
government." Id. Similar to Gantley, defense counsel's disregard for the trial
court's admonition in the present case created the circumstances necessitating
a mistrial.
Furthermore, it is unlikely that a second admonition would have been
effective under these circumstances. Defense counsel's disregard for the
court's ruling likely confused the jury and certainly brought additional
attention to the disputed matter.
An isolated or discrete statement erroneously impugning the credibility of
witnesses may be considered harmless. Cf. Meece v. Commonwealth, 348
S.W.3d 627, 664-65 (Ky. 2011) (witness's testimony concerning defendant's
experience with lying was held to be harmless error where defense was
premised upon taped statements "having been successful lies, and considering
8
the other evidence produced . . . ."). In the context of the present case,
however, defense counsel's statements concerning Sarah's history of lying were
based on evidence that was inadmissible, highly prejudicial, and in direct
contradiction to the court's previous admonition not to characterize any
witness as a liar. This prejudiced the Commonwealth's right to a
fundamentally fair trial and, thus, created the manifest necessity for a mistrial.
It is also necessary to briefly address the argument presented by the
dissent. Notably, the dissent provides the relevant factual summaries of three
cases, Bartley, Parker, and Johnson, in support of the contention that this
Court routinely affirms the denial of mistrial motions raised by the defense. In
each of these cases, however, we determined that the trial court's admonition
was sufficient to cure the respective error. In contrast, Sneed's counsel directly
defied a previous admonition, thus creating the circumstances in which a
second admonition would not suffice.
Remiss from the dissent's analysis are three cases in which this Court
has held that a mistrial was necessary in order to preserve the
Commonwealth's right to a fair trial. Grimes, 957 S.W.2d at 224; Chapman v.
Richardson, 740 S.W.2d 929 (Ky. 1987); and Stacy v. Manis, 709 S.W.2d 433,
434 (Ky. 1986). In Chapman and Stacy, the circumstances necessitating the
mistrial were based on a single improper question posed by defense counsel to
a prosecution witness. Although we clearly dispute the dissent's
characterization of the contested statement by Sneed's counsel as a "run-of-
the-mill routine misstep," there is nevertheless authority supporting the
9
proposition that a mistrial may be appropriate even when the error is based on
a single improper question or statement posed by counsel. Of course, such
determinations must be analyzed on a case-by-case basis.
Some trial judges may have handled the situation differently. But we
cannot declare that the trial court here abused its discretion by granting the
Commonwealth's motion for a mistrial, or that the Court of Appeals abused its
discretion by denying the writ.
Conclusion
For the foregoing reasons, we affirm the Court of Appeals' denial of the
writ of prohibition and remand this case to the trial court for retrial.
All sitting. Minton, C.J.; Hughes, Keller, and Wright, JJ., concur.
Hughes, J., concurs with separate opinion in which Minton, C.J., joins.
Venters, J., dissents by separate opinion in which Noble, J., joins.
HUGHES, J., CONCURRING: I agree completely with the Court's
conclusion that the declaration of a mistrial in this case was not an abuse of
the trial court's discretion. I write separately in hopes that a fuller account of
the trial court's proceedings and this Court's standard of review will serve as a
response to the concerns raised by the dissent.
RELEVANT FACTS
Near the outset of her opening statement, counsel for Sneed explained to
the jury that the defendant denied the sex-offense allegations that had been
leveled against him and contended that the alleged victim, the defendant's
granddaughter, had fabricated them. Counsel acknowledged that that was a
10
contention the jury would not, and should not, entertain lightly. The
granddaughter had alleged serious crimes, and the jury would rightly be
reluctant to believe that someone might lie about something so grave.
Nevertheless, defense counsel continued, evidence along several different fronts
would show that in this case there was plenty of reason to doubt the veracity of
the granddaughter's accusations. Counsel then proceeded to outline the
different types of evidence which, she asserted, would give the jury pause.
First, counsel promised evidence tending to show that the victim's father,
Jimmy (the defendant's son), was an inveterate liar and manipulator ("Jimmy
used lying as a way to retaliate against people. He did it against James [the
victim's grandfather]."). That was important, counsel said, for a couple of
reasons, one general and one more specific. The general reason was that the
father, by example, had passed his penchant for deceit and manipulation on to
his daughter ("She learned that that was a way to get back at people."), who
was also a liar and manipulator. And, more specifically, the granddaughter's
present accusations illustrated both her and her father's tendencies. She
accused her grandfather, counsel said, at a time when she was mad at her
grandfather for interfering in her relationship with an older boy. It was also at
a time, counsel said, when the father was feuding with the grandfather, and he,
the father, had manipulated his daughter into siding with him in the feud.
Another sort of evidence also suggesting false accusations, counsel
continued, was evidence tending to show that the granddaughter's accusations
had changed over time. She had given a number of statements to different
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investigators, and those statements included, according to counsel, significant
discrepancies. One such discrepancy concerned the granddaughter's
statement to one investigator that the sexual assaults had been preceded by
the defendant's forcing upon the victim white, prescription pills which had put
her to sleep.
At that point the Commonwealth objected. From the ensuing bench
conference (which expanded into a sort of hearing when the jury was excused),
it appears that prior to trial the Commonwealth had sought clearance under
Kentucky Rule of Evidence (KRE) 404(c) to introduce evidence concerning the
pills, but at the hearing on the Commonwealth's motion the granddaughter
testified and essentially recanted her prior statement. She acknowledged that
her grandfather had occasionally given her white pills, but only, she testified at
the KRE 404 hearing, at her request when she had a headache, and never as a
prelude to any sort of sexual contact. In light of that testimony, the trial court
had denied the Commonwealth's motion for leave to introduce pill evidence
prior to trial, ruling all such evidence irrelevant. Defense counsel's reference to
the pills, the Commonwealth now complained, violated that pretrial ruling.
Defense counsel responded by pointing out that she was not interested
in the pill evidence as such, but rather in the granddaughter's glaringly
inconsistent statements to the investigator and to the court. After considerable
discussion, the court agreed with defense counsel that the inconsistent
statements were relevant to the defense and overruled the Commonwealth's
objection.
12
Before recalling the jury and allowing defense counsel to continue with
her opening, the court gave the parties a brief recess. When the record
resumes, the jury is still absent and the Commonwealth is renewing its
objection to any reference to the pills, but this time is moving for a mistrial on
the ground not only that defense counsel's reference to the pills was a blatant
violation of a prior evidentiary ruling, but also on the ground that defense
counsel's earlier remarks about the victim's father, remarks characterizing him
as a liar, ran afoul of a general rule against that sort of witness
characterization.
The court gave the parties thirty minutes to look for pertinent authority
on this latter issue, and when the hearing recommenced the Commonwealth
referred the court to Moss v. Commonwealth, 949 S.W.2d 579 (Ky. 1997), for
the proposition that no witness, expert or otherwise, should be asked to
characterize the testimony of another witness as a lie or lying. Although
acknowledging that Moss did not apply directly to the present situation, the
court agreed with the Commonwealth that Moss's general solicitude for the
jury's role as credibility determiner was pertinent, and that defense counsel's
opening statement references to key prosecution witnesses as liars were at
odds with that fundamental principle. The trial court also referred to KRE 608,
the rule governing evidence about a witness's character for truthfulness, and
expressed concern that defense counsel's characterizations were not consonant
with the limitations that rule imposes on how and when a witness's character
for truthfulness can be attacked.
13
The court thus agreed with the Commonwealth that defense counsel's
references to the victim's father as a liar were improper. It did not agree,
however, that a mistrial was the appropriate remedy. The Commonwealth
argued in effect that by characterizing them as "liars" defense counsel had
tainted beyond recall the victim's and the victim's father's characters for
truthfulness such that the jury could not be relied upon to give their
testimonies a fair hearing. The trial court rejected that argument. Reading
from Cardine v. Commonwealth, 283 S.W.3d 641 (Ky. 2009), concerning the
standard for granting and the potential double jeopardy consequences of
mistrials, the court ruled that the Commonwealth's interest in a jury not
improperly biased against its witnesses could, at that point at least, be
adequately protected by an admonition. Accordingly, once the jury had
reassembled, the court admonished it as follows: "Statements made by counsel
that a particular witness is a liar are to be disregarded. The credibility of any
and all witnesses during the course of trial is within the exclusive province of
the jury and is for you to decide."
The jury thus advised, defense counsel resumed her opening. She briefly
recalled her earlier remarks about the granddaughter's inconsistent statements
concerning the present allegations, and then asserted that yet a third sort of
evidence cast doubt on the granddaughter's veracity. This evidence, counsel
said, included notes compiled by the girl's counselor during or soon after
therapy sessions, notes that, defense counsel continued, made reference to the
14
fact that the granddaughter's "issues with lying" had emerged as a concern in
therapy.
The Commonwealth promptly objected and renewed its motion for a
mistrial. The counselor's notes were inadmissible hearsay, the Commonwealth
argued, and so could not be referred to during opening statement. Even more
importantly, the reference to the granddaughter as, in essence, "a liar" was
grossly improper in light of the admonition the court had given the jury not five
minutes before.
The court allowed defense counsel to respond. She maintained that
hearsay was not an issue because the counselor would testify. She further
maintained that a counselor's characterization of a person as having "issues
with lying" was not the same as characterizing the person as "a liar," which is
what she had understood the court to have forbidden. She also objected to a
mistrial and offered her view that such a ruling would bar further prosecution.
The court did not this time ask for more research and it did not rehash
the mistrial standards it had noted just a few minutes earlier. It observed that
defense counsel's characterization of the victim as one who, in the eyes of her
counselor, had "issues with lying" raised the same sort of Moss and KRE 608
concerns as the earlier characterization of the victim's father as "a liar." Moss
deplored, the court noted, the characterization of another witness's testimony
as lying, even characterizations by experts. The court did not expressly rule
that an admonition could no longer assure the Commonwealth an unbiased
jury, but given the court's clear awareness of the mistrial standard and its
15
prior decision to admonish, that is a fair interpretation of its decision not to
give a second admonition. The court instead declared a mistrial.
Sneed contends that by declaring a mistrial the trial court erred in either
of two ways. Either there were no grounds for a mistrial, because there was
nothing improper about defense counsel's opening statement, or, even if there
was some impropriety, counsel's opening statement did not provide adequate
grounds for a mistrial because the presumed impropriety would have proved
harmless: regardless of counsel's statements the evidence at trial would
eventually have made the same points. 3
The dissent raises similar concerns. It, too, finds nothing particularly
objectionable in defense counsel's riding roughshod over the rules governing
not only what evidence is admissible, but how and when certain types of
evidence may be admitted. That is not the dissent's main concern, however.
Rather, even if defense counsel did exceed somehow the bounds of a proper
opening statement, the dissent maintains that the trial court misapplied the
standard for granting a mistrial, and that error, the dissent maintains, if this
Court is to be consistent with other mistrial rulings, implicates the double
3 Sneed thus would require trial courts to adopt the wait-and-see approach the
trial court employed in Lickliter v. Commonwealth, 249 Ky. 95, 60 S.W.2d 355 (1933),
whenever counsel refers in his or her opening to evidence that might become
admissible—as impeachment or rebuttal evidence, say—depending on the course of
trial. Neither Sneed nor the Commonwealth develops this idea, however, and so the
Court correctly does not address it. Tying the trial court's hands in that way seems a
bad idea to me, one at odds with what is supposed to be a genuine discretion in the
trial court, but in any event such a rule would not apply in cases like this one, where
counsel did not simply identify potentially admissible evidence, but rather used merely
potential (and highly dubious) evidence to infer and argue—activities appropriate to
closing argument, but not appropriate to opening statements.
16
jeopardy clauses of the federal and state constitutions so as to bar Sneed's
further prosecution. It is this latter concern of the dissent that I want in
particular to address, as it seems to me to misconceive our standard of review.
Before turning to that question, I will briefly address and second the majority
Opinion's conclusion that defense counsel's opening was indeed improper.
DISCUSSION
I. Defense Counsel Exceeded the Proper Bounds of Opening Statement.
In establishing the order of proceedings at a criminal trial, Kentucky
Rule of Criminal Procedure (RCr) 9.42 provides that once the jury has been
sworn "(a) The Attorney for the Commonwealth shall state to the jury the
nature of the charge and the evidence upon which the Commonwealth relies to
support it; (b) The defendant or the defendant's attorney may state the defense
and the evidence upon which the defendant relies to support it or the
defendant may reserve opening statement until the conclusion of the evidence
for the Commonwealth." Referring to the prosecutor's role under part (a) of this
rule, this Court has observed that "the only legitimate purpose of an opening
statement is so to explain to the jury the issue they are to try that they may
understand the bearing of the evidence to be introduced.' . . . Further, 'it is
never proper in an opening statement for counsel to argue the case or to give
his personal opinions or inferences from the facts he expects to prove."' Kiper
v. Commonwealth, 399 S.W.3d 736, 748 (Ky. 2012) (citations omitted). The
Court has held that under the rule, a prosecutor's use of inadmissible evidence
17
regarding a disputed fact during his opening statement is improper. Fields v.
Commonwealth, 12 S.W.3d 275 (Ky. 2000).
Although the Court appears never expressly to have held that the rule
imposes like restrictions on opening statements by the defense, I concur in the
majority's apparent presumption that it does. Cf. Supreme Court Rule (SCR)
3.130-3.4(e) ("A lawyer shall not . . . in trial, allude to any matter that the
lawyer does not reasonably believe is relevant or that will not be supported by
admissible evidence, assert personal knowledge of facts in issue except when
testifying as a witness, or state a personal opinion as to the justness of a
cause, the credibility of a witness, the culpability of a civil litigant or the guilt
or innocence of an accused."). 4 Under these rules, the opening statement by
either side is limited to outlining what counsel in good faith expects to prove or
support by evidence that is available, relevant, and admissible.
4 And see, Arizona v. Washington, 434 U.S. 497 (1978) (upholding grant of
mistrial based on defense counsel's references during opening statement to the fact
that the defendant's prior conviction had been reversed on the ground that the
prosecutor had violated Brady v Maryland, 373 U.S. 83 (1963)); Simmons v. State, 57
A.3d 541 (Md. Ct. Spc. App. 2012) (upholding grant of mistrial based on defense
counsel's disclosure during opening statement that the defendant had offered to take a
lie detector test); United States v. Shaw, 829 F.2d 714 (9th Cir. 1987) (upholding grant
of mistrial based on defense counsel's opening statement anticipating testimony by a
witness who had already indicated that she would invoke the Fifth Amendment);
Pavey v. State, 764 N.E.2d 692 (Ind. App. 2002) (upholding grant of mistrial based on
defense counsel's opening statement to the effect that a key prosecution witness had
been "bought and paid for" by plea agreement with the State); Commonwealth v.
Murray, 496 N.E.2d 179 (Mass. App. 1986) (upholding grant of mistrial based on
defense counsel's references during opening statement to prejudicial evidence some of
which was irrelevant and some was not supported by counsel's good-faith belief in its
existence); but see United States v. Sloan, 36 F.3d 386 (4th Cir. 1994) (holding that
defendant's decision not to testify did not necessitate a mistrial notwithstanding
defense counsel's limited anticipation of that testimony during opening statement).
18
As the majority opinion notes, defense counsel's characterization during
her opening statement of the victim and her father as "liars" ran afoul of those
rules because under Moss no witness at trial would have been allowed to
characterize the victim's or her father's testimony as "a lie," and under KRE
608 no witness would have 'been allowed to characterize the victim herself or
her father as "a liar." To be sure, depending on the impeachment evidence
ultimately introduced, it may have been a tolerable tactic for defense counsel to
label the victim and/or her father as "liars" during closing argument, but that
disparagement was improper during opening. It was plainly intended,
furthermore, to create a presumption in the jury, prior to any testimony,
against the Commonwealth's key witnesses, and as such the trial court was
well within its discretion when it admonished the jury not to make that
presumption.
As the majority opinion also notes, defense counsel's reference, on the
heels of the trial court's admonition, to notes by the victim's Seven Counties
Services counselor to the effect that the victim had "issues with lying," was
improper for a number of reasons. As with any other witness, the counselor
would never have been allowed to characterize the victim's testimony as a lie or
the victim as a liar. If Sneed's claim is that the victim's "issue[] with lying" is
something different from the character issue addressed by KRE 608, then
questions of expertise under KRE 702 and 703 must be addressed. The
counselor's notes, moreover, were not only hearsay but were subject to KRE
506, the counselor-client privilege. Under that rule, "a client has a privilege to
19
refuse to disclose and to prevent any other person from disclosing confidential
communications made for the purpose of counseling the client, between
himself, his counselor, and persons present at the direction of the counselor,
including members of the client's family." KRE 506(b). All of these rules, of
course, allow for the admission of otherwise inadmissible evidence under
certain circumstances. See, e.g., KRE 506(d), exceptions to the counselor-
client privilege; Cf., e.g., Commonwealth, v. Barroso, 122 S.W.3d 554 (Ky. 2003)
(discussing the limited admissibility of evidence subject to KRE 507, the
psychotherapist-patient privilege). However, the burden of establishing the
exception is unquestionably on the proponent of the evidence, and that burden
includes raising the issue in a timely manner. I concur fully in the majority
opinion's conclusion that defense counsel's reference to the victim's counselor's
notes without having secured a ruling on their admissibility was highly
improper, and the impropriety was only compounded by the fact that the notes
referred to the victim's "issues with lying." Here again, defense counsel's
purpose, plainly, was to prejudice the jury against the victim prior to her
testimony, and the question thus becomes did that impropriety and the
immediately preceding one "manifestly necessitate" a mistrial. They clearly did.
II. The Trial Court Did Not Abuse Its Discretion By Declaring a Mistrial.
Actually, the manifest need for a mistrial is not exactly the question
before us. That was the question that confronted the trial court, which, as
noted above, initially denied the Commonwealth's motion for a mistrial, but
granted its subsequent motion when defense counsel persisted in her
20
premature and improper efforts to impugn the veracity of key prosecution
witnesses. The precise question before this Court, however, is not whether
defense counsel's improper opening statement manifestly necessitated a
mistrial, but rather whether the trial court abused its discretion in deciding
that it did. Cardine v. Commonwealth, 283 S.W.3d at 641. The United States
Supreme Court addressed these related but distinct questions in Arizona v.
Washington, 434 U.S. at 497, which, like this case, involved the declaration of a
mistrial following what the state trial court deemed unduly prejudicial
comments by defense counsel during his opening statement.
As the majority Opinion explains, under the Double Jeopardy clauses of
both the federal and our Kentucky constitutions, when a mistrial has been
declared, retrial of the defendant is not allowed unless the defendant consented
to the mistrial, Cardine, 283 S.W.3d at 647 (citing United States v. Dinitz, 424
U.S. 600 (1976), or unless the mistrial was compelled by "manifest necessity."
Cardine, 283 S.W.3d at 647; Arizona v. Washington, 434 U.S. at 505-06 (citing
United States v. Perez, 22 U.S. 579, 9 Wheat. 579, 580 (1824)). In Washington,
the United States District Court and the Court of Appeals for the Ninth Circuit
agreed that the mistrial had been entered over the defendant's objection and in
the absence of "manifest necessity," and so granted and upheld, respectively,
the defendant's petition for and award of habeas corpus relief. Reversing, the
Supreme Court explained that the Court of Appeals had "applied an
inappropriate standard of review to mistrial rulings of this kind." 434 U.S. at
503.
21
The Supreme Court acknowledged the appropriateness of the "manifest
necessity" standard as a guide to trial courts confronted, in a variety of cases,
with requests for mistrials. "Nevertheless," the Court observed,
those words ["manifest necessity"] do not describe a standard
that can be applied mechanically or without attention to the
particular problem confronting the trial judge. Indeed, it is
manifest that the key word "necessity" cannot be interpreted
literally; instead, contrary to the teaching of Webster, we
assume that there are degrees of necessity and we require a
"high degree" before concluding that a mistrial is appropriate.
The question whether that "high degree" has been reached is
answered more easily in some kinds of cases than in others.
434 U.S. at 506-07 (footnotes omitted).
Thus, the Court explained, the degree of appellate scrutiny given to a
trial judge's finding of manifest necessity will vary depending on the underlying
facts. At one end of the spectrum, a trial judge's finding of manifest necessity
is entitled to the "highest degree of respect" when juror bias or a hung jury is
involved. 434 U.S. at 510-11. At the other end of the spectrum, the "strictest"
appellate scrutiny is appropriate when the finding of manifest necessity is
premised on "the unavailability of critical prosecution evidence, or when there
is reason to believe that the prosecutor is using the superior resources of the
State to harass or to achieve a tactical advantage over the accused." 434 U.S.
at 508 (footnotes omitted).
With respect to cases, such as Washington, in which potential jury bias
was the problem confronting the trial court, the Court recognized that
the extent of the possible bias cannot be measured, and that
the [federal] District Court was quite correct in believing that
some trial judges might have proceeded with the trial after
giving the jury appropriate cautionary instructions. In a strict,
22
literal sense, the mistrial was not "necessary." Nevertheless,
the overriding interest in the evenhanded administration of
justice requires that we accord the highest degree of respect to
the trial judge's evaluation of the likelihood that the
impartiality of one or more jurors may have been affected by
[defense counsel's] improper comment. . . . An improper
opening statement unquestionably tends to frustrate the public
interest in having a just judgment reached by an impartial
tribunal. Indeed, such statements create a risk, often not
present in the individual juror bias situation, that the entire
panel may be tainted. The trial judge, of course, may instruct
the jury to disregard the improper comment. In extreme cases,
he may discipline counsel, or even remove him from the trial as
he did in United States v. Dinitz, 424 U.S. 600, 96 S. Ct. 1075,
47 L. Ed. 2d 267. Those actions, however, will not necessarily
remove the risk of bias that may be created by improper
argument. Unless unscrupulous defense counsel are to be
allowed an unfair advantage, the trial judge must have the
power to declare a mistrial in appropriate cases. The interest
in orderly, impartial procedure would be impaired if he were
deterred from exercising that power by a concern that any time
a reviewing court disagreed with his assessment of the trial
situation a retrial would automatically be barred. The adoption
of a stringent standard of appellate review in this area,
therefore, would seriously impede the trial judge in the proper
performance of his "duty, in order to protect the integrity of the
trial, to take prompt and affirmative action to stop .. .
professional misconduct." Id., at 612, 96 S. Ct., at 1082.
.
434 U.S. at 511-13 (citations and footnotes omitted).
To be sure, even in the hung jury and biased jury contexts, where trial
court mistrial decisions are due considerable deference, "reviewing courts have
an obligation to satisfy themselves that, in the words of Mr. Justice Story [in
United States v. Perez, supra], the trial judge exercised 'sound discretion' in
declaring a mistrial." 434 U.S. at 514. This is not, however, a backdoor
invitation to the reviewing court to substitute its "manifest necessity" opinion
for that of the trial court. The reviewing court, rather, is to satisfy itself, "by
close examination of the record," United States v. Sloan, 36 F.3d at 400, that
23
the trial court did not act precipitately, but evinced an appropriate concern for
the possible double jeopardy consequences of an erroneous ruling; gave both
the defense counsel and the prosecutor a full opportunity to explain their
positions; and made a ruling neither irrational nor irresponsible in light of the
particular facts. Washington, 434 U.S. at 514-15.
An examination of the full record in this case makes it clear that the trial
court exercised a sound discretion. Its mistrial ruling was both well informed
and duly deliberate. Indeed, its reading of pertinent passages from Cardine on
the record makes it abundantly clear that it was aware of the mistrial standard
and of the important constitutional interests at stake. The trial court's initial
denial of the Commonwealth's motion and its opting instead for an admonition
makes it equally clear that it was aware of and considered alternatives to a
mistrial. It twice gave both parties a full opportunity to explain their positions.
Its ultimate decision to abort the trial came only after defense counsel ventured
again to paint a witness as a liar, this time by reference to privileged counselor
notes which were inadmissible absent 'a court ruling that they were admissible.
While some judges might have decided differently, this ruling can hardly be
deemed irrational or irresponsible. Defense counsel's persistent attempts—in
the face of an admonition—to bias the jury against the Commonwealth's key
witnesses before their testimonies and the introduction of any evidence, gave
the court reasonable grounds to conclude that the Commonwealth's right to a
fair trial had been compromised. A second admonition, the court could
reasonably have concluded, was apt not to be effective, and, indeed, could have
24
affected the defendant's right to . a fair trial by casting defense counsel in an
unfavorable light.
CONCLUSION
In sum, I concur fully in the majority's conclusion that the declaration of
a mistrial in this case was not an abuse of discretion. The dissent's contrary
position rests, it appears, on a cursory review of the record and a failure to
distinguish the different roles, as emphasized by the United States Supreme
Court in Washington, of trial and appellate courts.
Minton, C.J., joins.
VENTERS, J., DISSENTS: I respectfully dissent. On countless
occasions, this Court has steadfakly held that "a mistrial is an extreme remedy
and should be resorted to only when there appears in the record a manifest
necessity for such an action or an urgent or real necessity." Dunlap v.
Commonwealth, 435 S.W.3d 537, 604 (Ky. 2013), as modified (Feb. 20, 2014). 5
Wehavinstrucd lohateirdscnoamtril"s
5 Mayse v. Commonwealth, 422 S.W.3d 223, 229 (Ky. 2013), as modified on
denial of reh'g (Mar. 20, 2014); Doneghy v. Commonwealth, 410 S.W.3d 95, 107 (Ky.
2013); Brown v. Commonwealth, 416 S.W.3d 302, 312 (Ky. 2013); Oro-Jimenez v.
Commonwealth, 412 S.W.3d 174, 181 (Ky. 2013); Baumia v. Commonwealth, 402
S.W.3d 530, 541 (Ky. 2013); Slone v. Commonwealth, 382 S.W.3d 851, 858 (Ky. 2012);
York v. Commonwealth, 353 S.W.3d 603, 607 (Ky. 2011); Parker v. Commonwealth,
291 S.W.3d 647, 658 (Ky. 2009); Olson v. Commonwealth, 2005-SC-000592-MR, 2008
WL 746651 at *7 (Ky. Mar. 20, 2008), as modified on denial of reh'g (Aug. 21,
2008)(unpublished); Matthews v. Commonwealth, 163 S.W.3d 11, 17 (Ky. 2005), as
modified (Aug. 25, 2005); Dawson u. Commonwealth, 2003-SC-0363-MR, 2005 WL
1412522 at *3 (Ky. June 16, 2005)(unpublished); Bray v. Commonwealth, 177 S.W.3d
741, 752 (Ky. 2005), overruled on other grounds by Padgett v. Commonwealth, 312
S.W.3d 336 (Ky. 2010); Woodard v. Commonwealth, 147 S.W.3d 63, 68 (Ky. 2004);
Commonwealth v. Scott, 12 S.W.3d 682, 684 (Ky. 2000). Skaggs v. Commonwealth, 694
S.W.2d 672, 678 (Ky. 1985); and others too numerous to list.
25
to be used sparingly and only with the utmost caution, under urgent
circumstances, and for very plain and obvious causes." Commonwealth v.
Scott, 12 S.W.3d 682, 685 (Ky. 2000). We said in Parker v. Commonwealth,
that a trial court should declare a mistrial "only when there is a fundamental
defect in the proceedings." 291 S.W.3d 647, 658 (Ky. 2009). We said in Brown
v. Commonwealth that a trial court should declare a mistrial only when "the
error is 'of such magnitude that a litigant would be denied a fair and impartial
trial, and the prejudicial effect could be removed in no other way."' 416 S.W.3d
302, 312 (Ky. 2013) (citation omitted).
In conjunction with the foregoing principles, we have consistently held
that a mistrial is improper when the taint of improper information going to the
jury can be cured with an admonition. Matthews v. Commonwealth, 163
S.W.3d 11, 17 (Ky. 2005). In fact, so strong is our faith in the efficacy of an
admonition to cure the taint of improper evidence that we allow for only two
circumstances in which an admonition will be deemed to be an insufficient
cure: 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 improper question was asked [or other improper information
imported] without a factual basis and was inflammatory or highly prejudicial."
Bartley v. Commonwealth, 400 S.W.3d 714, 735 (Ky. 2013); Parker, 291 S.W.3d
at 658; Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003). Consider
the following recent examples in which, despite obviously improper and
26
seriously prejudicial evidence, we held that a mistrial was properly denied
because the taint could be cured by an admonition.
In Bartley, a trial witness's "disturbing" suggestion that the defendant
inflicted numerous cigarette burns on her severely disabled child was readily
cured by an admonition to the jury "not to consider" the witness's improper
cigarette-burn testimony. 400 S.W.3d 714, 735-36.
In Parker, a witness's improper and highly prejudicial testimony that he
feared he would be killed for testifying against the defendant was cured by the
judge's admonishment of the jury "to disregard the last question and answer."
291 S.W.3d at 657.
In Johnson, the prosecutor's improper questioning of a witness about the
defendant's prior criminal conviction did not warrant a mistrial because the
prejudice was cured by the trial judge's admonition to the jury to "disregard
that particular question and the fact that Mr. Johnson may have pled guilty to
any offense at any other time." 105 S.W.3d at 440-41.
In Olson v. Commonwealth, the prosecutor told the jury in his opening
statement that witnesses would testify that the defendant admitted her role in
the murder. The evidence to support that highly incriminating remark was
never presented. Not only did we conclude that a mistrial was properly denied,
we went so far as to say that the defendant herself could have "removed or
mitigated [the prejudicial effect] through [her] closing argument, by pointing
out that the Commonwealth failed to produce evidence promised in its opening
27
statement." 2005-SC-000592-MR, 2008 WL 746651 at *7 (Ky. Mar. 20, 2008),
as modified on denial of reh'g (Aug. 21, 2008).
The law could not be clearer: a mistrial is an "extreme remedy" to be
granted with "utmost caution" only as a "manifest necessity" when a
"fundamental defect in the proceedings" presents an "urgent or real necessity."
When improper information is heard by the jury, a mistrial is acceptable only if
there is an overwhelming probability that the jury will be unable to follow the
court's admonition and a strong likelihood that the effect of the inadmissible
evidence would be devastating; or if the information presented lacked a factual
basis and was inflammatory or highly prejudicial.
Significantly, in its brief to this Court, the Commonwealth does not
attempt to explain how defense counsel's comment could be "of such
magnitude that a litigant would be denied a fair and impartial trial and the
prejudicial effect could be removed in no other way" 6 but a mistrial. The
Commonwealth says that "defense counsel's blatant disregard for the trial
court's ruling is what necessitated the granting of the mistrial." Yet, we have
never held that violating a court ruling alone is grounds for a mistrial.
Certainly, a serious prejudicial effect arising out of such conduct could compel
a mistrial, but it is the effect that must meet the mistrial standard, not the
audacity of the perpetrator's defiance. The Commonwealth does not explain or
describe any prejudice caused to its case by the defense counsel's conduct; and
neither does the Court of Appeals.
6 Brown, 416 S.W.3d at 312.
28
The Court of Appeals says that the "repeated disregard of the trial court's
ruling by Sneed's counsel created the need for the trial court to declare a
mistrial." Based on our well-established standards, there cannot be a "need for
the trial court to declare a mistrial" unless there is an "error [] of such
magnitude that a litigant would be denied a fair and impartial trial and the
prejudicial effect could be removed in no other way." Id. Neither the majority
opinion, the separate concurring opinion, nor the Court of Appeals opinion
explain how the Commonwealth would be denied a fair and impartial trial by
defense counsel's conduct or what "prejudicial effect" was created that could
only be cured by a mistrial.
I fully understand that, as a court of appellate review, we do not
substitute our discretion for that of the trial court. We defer to the trial court's
discretion to determine if, based upon the exacting standards we set, a mistrial
is a manifest necessity. But, to exercise its discretion, a trial court is obliged to
use the standards we set. A discretionary decision that fails to apply the
applicable standard of law is a decision that is "unsupported by sound legal
principles," and thus, is an abuse of discretion. Commonwealth v. English, 993
S.W.2d 941, 945 (Ky. 1999). In other words, a mistrial declared without any
articulable connection to the governing rule of law is unsupported by. "sound
legal principles," and is, therefore, an abuse of discretion.
I do not suggest that this well-respected and experienced trial judge does
not know the standard for declaring a mistrial; I simply point out that he did
not apply the standard for declaring a mistrial and made no findings to indicate
29
the proper standard was applied. In neither the oral ruling from the bench,
nor the written order that later memorialized the declaration of the mistrial, did
the trial court indicate how such prejudice was inflicted upon the
Commonwealth's case that it could not be cured by another admonition. The
trial court offered no explanation for the manifest necessity of a mistrial.
The prosecutor also did not explain the necessity for a mistrial. The only
justification expressed for declaring a mistrial was that defense counsel made
an improper comment during the opening statement. In my view, especially in
the wake of Olson, how such a run-of-the-mill misstep in an opening statement
becomes "an error of such magnitude that a litigant would be denied a fair and
impartial trial and the prejudicial effect could be removed in no other way" is a
mystery that requires an explanation.
The harsh ramifications in this case of a decision of this Court adverse to
the Commonwealth is manifest. But the constitutional implication of declaring
a mistrial was also obvious and it was squarely presented in the trial court
before the mistrial was declared. It is no accident that a mistrial is an "extreme
remedy" justifiable only when it is manifestly necessary to cure a "fundamental
defect" that can be fairly addressed no other way. A mistrial in a criminal case
comes at the expense of the defendant's Constitutional right to protection
against double jeopardy. Consequently, we allow the forfeiture of that right
only when no other option is available to avoid injustice. That is why we have
the long litany of cases emphasizing the extraordinary requirements for
granting a mistrial.
30
Over the years, we have dismissed as harmless error scores of similar
offensive statements by attorneys in both criminal and civil cases because we
could see no perceptible effect at all on the outcomes of the cases. The
majority opinion casts many of those decisions in doubt. We can now expect
that in scores of future cases criminal defendants in cases like Parker,
Johnson, Bartley, and Olsen will remind us how a lawyer's opening statement
claiming that a witness will lie, or is a liar, is now "a fundamental defect in the
proceeding" requiring reversal.
I will not debate with the majority (and separate concurrence) over the
admissibility of evidence alluded to in defense counsel's opening statement.
The majority and separate concurrence postulate various reasons for its
inadmissibility that were not raised, addressed, or decided in trial court or the
Court of Appeals, and thus had no effect on whether a mistrial was necessary.
It suffices to say that the only basis utilized by the trial court and the Court of
Appeals as justification for a mistrial was their perceived violation of the rule
we set forth in Moss v. Commonwealth, 949 S.W.2d 579, 583 (Ky. 1997).
The trial court based the declaration of a mistrial upon this statement
from Moss: "[I]t is improper to require a witness to comment on the credibility
of another witness. A witness's opinion about the truth of the testimony of
another witness is not permitted." The trial court expressly quoted the excerpt
in Moss taken from the Supreme Court of Rhode Island in State v. JameS, 557
A.2d 471, 473 (R.I. 1989): "Neither expert nor lay witnesses may testify that
31
another witness or a defendant is lying or faking. That determination is within
the exclusive province of the jury."
However, Moss does not apply here. Moss prohibits questions that ask
one witness "to characterize the testimony of another witness . . . as lying."
949 S.W.2d at 583. The basis for the rule stated in Moss is that a witness's
opinion about the truth of the testimony of another witness is not relevant to
the jury's determination. Nothing in Moss, or in any other case that I know of,
prohibits a lawyer in his opening statement from telling the jury that the
evidence will show that an adversarial witness will be lying.
We may quibble about the use of such indelicate terms as "liar," and
certainly within some reasonable limits the trial court can preserve the
decorum of the courtroom by moderating the tolerable range of offensive
discourse. But Moss does not apply'o the circumstances of this case and
cannot in this instance form the basis of prejudicial error compelling a mistrial.
For the foregoing reasons, I respectfully dissent.
Noble, J., joins.
32
COUNSEL FOR APPELLANT:
Julie Marie Kaelin
APPELLEE:
Hon. Rodney Burress
Judge, Bullitt Circuit Court
COUNSEL FOR COMMONWEALTH OF KENTUCKY, REAL PARTY IN
INTEREST:
Andy Beshear
Attorney General of Kentucky
William Robert Long, Jr.
Assistant Attorney General
COUNSEL FOR AMICUS CURIAE KENTUCKY ASSOCIATION OF CRIMINAL
DEFENSE LAWYERS:
William G. Deatherage, Jr.
33