Glen A. Davis v. Commonwealth of Kentucky ( 2020 )

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RENDERED: FEBRUARY 20, 2020
NOT TO BE PUBLISHED
GLEN A. DAVIS APPELLANT
ON APPEAL FROM SCOTT CIRCUIT COURT
V. HONORABLE PAUL F. ISAACS, JUDGE
NO. 13-CR-00179
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Glen A. Davis appeals as a matter of right from the Scott Circuit Court
judgment sentencing him to seventy years in prison for four counts of use of a
minor in a sexual performance. On appeal, Davis argues (1) the trial court
erred by denying the motion to sever the four counts of use of a minor in a
sexual performance from other charges for which he was acquitted including
incest and rape; (2) the trial court erred by admitting the four photos into
evidence; (3) the trial court erred by denying Davis’s request for a lesser
included offense instruction; (4) the trial court erred in denying the motion for
a mistrial due to a Brady violation;1 and (5) the jury selection procedures were
improper.
1 Brady v. Maryland, 373 U.S. 83 (1963).
FACTSAND PROCEDURALHISTORY
Glen A. Davis and his wife, Megan Davis, were married in 1995. After
moving to Scott County, the couple had two daughters: M.D., born September
23, 2000, and a second daughter born in 2005. Their marriage began to fall
apart and in 2012 Davis informed Megan that he wanted a divorce. Thereafter
Megan noticed distressing changes in M.D.’s behavior. She became angry,
moody, and afraid. She was very reluctant to spend time with Davis. M.D. was
treated twice at a psychiatric facility for her self-harming behaviors, which
included clawing and scratching at her own skin and banging her head against
a wall. Upon being questioned by Megan in January 2013, M.D. disclosed that
she had been abused. Megan reported the allegations to law enforcement on
January 31, 2013.
Police opened an investigation and arranged an interview for M.D. at a
children’s advocacy center. After viewing this interview via closed circuit
television, a detective requested the family laptop and camera from Megan.
The family laptop had four different user accounts — one for each family
member. Police discovered four deleted images of what appeared to be child
pornography dated January 13, 2010. They depicted a young female lying on a
table exposing her genitals. Three of the four photos contained embedded data
which indicated they were taken with the family camera.
Megan positively identified M.D in one of the photos and determined that
they were taken during winter in the family home because she could see a
portion of one of the family’s seasonal place mats in the photos, as well as the
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wallpaper border in the background. The Commonwealth’s digital forensic
expert could not determine when the photos were uploaded from the camera to
the laptop, how many times they were viewed, which of the four family
accounts the images existed on before being deleted, or when they were
deleted.
At trial M.D. testified regarding several instances of abuse. She stated
that Davis touched her “private area” one afternoon in March 2007 when she
was six years old. She also testified that in 2010, when she was nine years old,
Davis photographed her genitals and he told her that he did so because he
wanted her to see what she looked like “down there.” She identified herself in
the photos and also identified the walls and seasonal place mats on the table.
She stated that Davis uploaded the photos to the family laptop and that they
looked at them together. M.D. also testified that Davis raped her when she was
home sick from school sometime in December 2012 when she was twelve years
old. She stated that Davis overpowered her, and she was in excruciating pain
during the rape. She was evaluated by the Children’s Advocacy Center in
Lexington and her physical exam was normal.
Davis was tried for four counts of use of a minor in a sexual performance
and one count each of first-degree sexual abuse, incest, and second-degree
rape. He testified at trial and denied all of M.D.’s allegations. The jury
convicted him of four counts of use of a minor in a sexual performance and
acquitted him on all other charges. The jury recommended a sentence of
twenty years for each count to run consecutively for an eighty-year sentence.
3
The trial court sentenced Davis to the statutory maximum of seventy years in
prison and this appeal followed.
ANALYSIS
Davis appeals as a matter of right, raising the following issues: (1) the
trial court erred by denying the motion to sever the four counts of use of a
minor in a sexual performance from the rest of the charges; (2) the trial court
erred by admitting the four nude photos of M.D. into evidence; (3) the trial
court erred by denying Davis’s request for a lesser included offense instruction;
(4) the trial court erred in denying the motion for a mistrial due to a discovery
violation, and (5) the jury selection procedures were improper.
I. The trial court properly denied the motion to sever.
Prior to trial, Davis filed a motion to sever the counts of use of a minor in
a sexual performance from the sexual abuse, incest, and rape charges, arguing
that the use of a minor in a sexual performance charges were too different in
character from the remaining charges. After a hearing, the trial court denied
the motion. Davis renewed his motion to sever at trial, but again it was denied.
He argues that this was error.
An appellate court reviews a trial court’s denial of a motion to sever for
an abuse of discretion. A trial court abuses its discretion if its decision was
“arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Davis argues that
because nothing in the photos indicates that the young girl depicted therein
had been physically abused or touched inappropriately, and the remaining
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counts in the indictment all involved allegations that Davis sexually assaulted
M.D. in varying ways, severance was required.
Kentucky Rule of Criminal Procedure (RCr) 6.18 permits two or more
offenses to be charged in the same indictment provided that “the offenses are of
the same or similar character or are based on the same acts or transactions
connected together or constituting parts of a common scheme or plan.”
Additionally, RCr 8.31 mandates when severance is necessary, and states that
“[i]f it appears that a defendant or the Commonwealth is or will be prejudiced
by a joinder of offenses . . . , the court shall order separate trials of counts . . . ,
or provide whatever other relief justice requires.” Prior to trial a defendant
seeking severance must show that joinder would be unduly prejudicial. Cohron
v. Commonwealth, 306 S.W.3d 489, 493 (Ky. 2010). “[A] defendant must prove
that joinder would be so prejudicial as to be unfair or unnecessarily or
unreasonably hurtful.” Ratliff v. Commonwealth, 194 S.W.3d 258, 264 (Ky.
2006). “If evidence from one of the offenses joined in the indictment would be
admissible in a separate trial of the other offenses, the joinder of offenses
generally will not be prejudicial.” Cohron, 306 S.W.3d at 493.
Kentucky Rule of Evidence (KRE) 404(b) provides that
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:
(1) If offered for some other purpose, such as proof of
motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or
accident[.)
5
“[E]vidence of similar acts perpetrated against the same victim are almost
always admissible....” Harp v. Commonwealth, 266 S.W.3d 813, 822 (Ky.
2008). “[E]vidence of other assaults perpetrated by a defendant against
the same victim is generally admissible to prove intent and motive with respect
to the subsequent assault.” Ratliff v. Commonwealth, 194 S.W.3d at 264.
Similarly, because evidence of the sexual abuse, rape, and use of a minor in a
sexual performance would be mutually admissible in separate trials, we cannot
say that joinder was prejudicial.
As Davis states, sexual abuse, incest and rape require some type of
contact or touching and using a minor in a sexual performance does not
contemplate physical contact. However, the offenses are appropriately joined
under RCr 6.18, “constituting parts of a common scheme or plan” to commit
sexual crimes against his daughter. Because evidence of the use of a minor in
a sexual performance would have been admissible in a separate trial for sexual
abuse and rape, and vice versa, the joinder of offenses was not prejudicial and
therefore the trial court did not abuse its discretion.
Finally, Davis emphasizes that his seventy-year sentence, despite being
acquitted of the rape, sexual abuse and incest charges, highlights the prejudice
that resulted from joinder of all offenses. However, when ruling on a motion to
sever, the trial court is tasked with assessing potential prejudice from joining
offenses prior to trial. Cohron, 306 S.W.3d at 493. Although Davis received a
lengthy sentence despite being acquitted on some charges, we cannot say that
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the harshness of the penalty means the trial court abused its discretion in
ruling on Davis’s pre-trial motion to sever.
II. The admission of the photos was not an abuse of discretion.
Davis argues that the trial court erred in admitting the four photos of
M.D. into evidence. He argues that while the photos were relevant, they were
unduly prejudicial. We review evidentiary issues for an abuse of discretion.
Clark v. Commonwealth, 567 S.W.3d 565, 576 (Ky. 2019), requires this Court
to consider whether the trial court’s decision was “arbitrary, unreasonable,
unfair, or unsupported by sound legal principles.”
Davis was charged with four counts of use of a minor in a sexual
performance. Kentucky Revised Statute (KRS) 531.310(1) states that “[a]
person is guilty of the use of a minor in a sexual performance if he employs,
consents to, authorizes or induces a minor to engage in a sexual performance.”
KRS 531.300(6) defines “sexual performance” as “any performance or part
thereof which includes sexual conduct by a minor.” “Performance” is defined
as “any play, motion picture, photograph or dance. Performance also means
any other visual representation exhibited before an audience.” KRS
531.300(5).
Davis continually objected to the admissibility of the photos. Prior to
trial, the trial court conducted an in camera review of the four photos to
determine how the photos would be used during trial. In a written order, the
trial court described each photo and determined that each was admissible.
The trial court reasoned that the photos were probative because each
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demonstrated that (1) an offense was committed (2) during a particular time
(when M.D. was a minor), both of which constitute necessary proof of the
crimes.
Davis criticizes the reliability of the photos, stating that because the
photos only show the lower half of the body it could be any young female in the
photos. Davis highlights that M.D. was biased toward him based on her
testimony that she was angry at him about the divorce. He also points out that
only seventeen-year-old M.D. identified the then nine-year-old M.D. in the
photos. However, the record indicates that Megan, M.D.’s mother, identified
M.D. as the girl in one of the photos.2 Further, “[assessing the credibility of a
witness and the weight given to her testimony rests within the unique province
of the jury . . . .” Ross v. Commonwealth, 531 S.W.3d 471, 477 (Ky. 2017)
(citations omitted). The jury was charged with deciding whether M.D.’s
identification was credible and how much weight to afford her testimony.
All photos are subject to a balancing test pursuant to KRE 403. Relevant
evidence “may be excluded if its probative value is substantially outweighed by
the danger of undue prejudice . . . .” KRE 403. Probative photos are
admissible “unless they are so inflammatory that their probative value is
substantially outweighed by their prejudicial effect.” Adkins v. Commonwealth,
96 S.W.3d 779, 794 (Ky. 2003). There is no doubt, and Davis admits, that the
photos are relevant to the crimes committed. Likewise, the probative value of
2 As noted, Megan also identified the seasonal place mats on the table and the
wallpaper border as establishing that the photos were taken in the family home.
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the photos cannot be denied. “The ‘probative value’ or ‘probative worth’ of
evidence is a measure of how much the evidence tends to make the fact it is
introduced to prove more or less probable.” Hall v. Commonwealth, 468 S.W.3d
814, 823 (Ky. 2015). Davis highlighted M.D.’s potential lack of credibility,
making the photos essential to proving the crimes. A judge must consider the
photos “within the full evidentiary context of the case, giving due regard to
other evidence admitted ... to ascertain each item’s . . . probative worth for
purposes of weighing that value against the risk of prejudice posed by the
evidence.” Id. at 824.
Here, the photos constitute physical evidence of the crime itself. When
paired with M.D.’s testimony, the photos establish that Davis used M.D. in a
sexual performance and violated KRS 531.310. Obviously, the photos were
prejudicial, but this prejudice did not outweigh their probative value. Because
the photos were relevant and probative, they were properly admitted into
evidence.
As for the admission of all four photos, each photo was necessary to
prove each of the four counts charged in the indictment. In Williams v.
Commonwealth, 178 S.W.3d 491, 493 (Ky. 2005), the appellant was convicted
of four counts of use of a minor in a sexual performance for photos he took of
his daughter. He argued that the photographs should have been consolidated
into one count. Id. at 494. The Court determined that the singular form of
“photograph” in the definition of performance, read in conjunction with “any,”
indicated that the legislature intended prosecution for each differing
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photograph. Id. at 495. “Accordingly, a person who generates differing and
multiple prohibited photographs or causes a child to engage in the creation of
such photographs commits multiple offenses of KRS 531.310, even though
each such differing photograph involves the same subject captured in a narrow
timeframe.” Id.
While the photos are not in the record transmitted to this Court, the trial
court provided descriptions of each photo.3 The photos are not substantially
different, but each photo depicts elements that corroborate the identification of
the female and where the photos were taken. For example, the first description
states that the photo displays a female in a blue vest, which M.D. used to
identify herself because she once owned a blue vest. The description of the
second photo references the blue vest, in addition to a green and white striped
shirt — an element not present in the first photo. Also, the descriptions of the
third and fourth photos indicate the female is lying on a holiday place mat and
the place mat is not visible in the other photos. The holiday place mat is
important because it further establishes that the photos were taken in the
family home. Therefore, the admission of each photo was necessary to prove
the elements of each individual count. Further, the place mats and other
background items in the photos corroborated M.D.’s allegations against Davis.
3 The record indicates that after each photo was introduced into evidence by the
Commonwealth it was passed to the jury for discreet viewing.
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The photos prove the elements necessary for each count of the use of a
minor in a sexual performance. Therefore, the photos were properly admitted,
and the trial court did not abuse its discretion.
III. No lesser included offense instruction was required.
Davis made an oral motion requesting an instruction on the lesser
included offense of possession or viewing of matter portraying a sexual
performance by a minor. KRS 531.335. He argued that the evidence justified
an instruction on the lesser included offense. The final jury instructions did
not include Davis’s requested instruction, and he argues that this was error.
When a trial court declines to give an instruction on a specific claim, the
decision is reviewed for an abuse of discretion. Sargent v. Schaffer, 467 S.W.3d
198, 204 (Ky. 2015). On appellate review, we must determine whether the trial
court’s decision was “arbitrary, unreasonable, unfair, or unsupported by sound
legal principles.” English, 993 S.W.2d at 945. Trial courts must give a lesser
included offense instruction “if, but only if, considering the totality of the
evidence, the jury might have a reasonable doubt as to the defendant’s guilt of
the greater offense, yet believe beyond a reasonable doubt that he is guilty of a
lesser offense.” Jenkins v. Commonwealth, 496 S.W.3d 435, 449 (Ky. 2016).
To determine this issue, we must delineate between the two crimes.
“A person is guilty of use of a minor in a sexual performance if he
employs, consents to, authorizes or induces a minor to engage in a sexual
performance.” KRS 531.310(1). “Sexual performance” means “any
performance or part thereof which includes sexual conduct by a minor.” KRS
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531.300(6). Photographs constitute “performance” under the statute, and
sexual conduct includes “[t]he exposure, in an obscene manner, of the
unclothed . . . female genitals ... or the female breast . . . .” KRS
531.300(4)(d).
Davis argues that KRS 531.335 is a lesser included offense of the use of
a minor in a sexual performance. KRS 531.335 provides:
1) A person is guilty of possession or viewing of matter portraying
a sexual performance by a minor when, having knowledge of its
content, character, and that the sexual performance is by a
minor, he or she
a) Knowingly has in his or her possession or control any
matter which visually depicts an actual sexual
performance by a minor person;
Davis maintains that because the photos showed a young female from
below the chest, it was impossible to identify her. He argues that only M.D.
was able to identify the pictured female, and that there were issues with M.D.’s
credibility because the jury rejected her testimony that Davis sexually
assaulted her. He further highlights that (1) M.D. testified that she was angry
at Davis because of the divorce and would do anything for her mother; (2) the
computer and camera were both in Megan’s possession when the allegations of
sexual misconduct were made; (3) Megan had a financial motive to implicate
Davis because of her desire to obtain funds from his retirement account in the
divorce; and (4) M.D. was the only witness that identified the female in the
photos and she possessed an obvious bias toward Davis. He states that this
evidence demonstrates that a jury could reasonably doubt whether he used
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M.D. in a sexual performance in violation of KRS 531.310, and instead believe
that he merely had the photos in his possession.
The Court of Appeals considered whether possession of matter portraying
a sexual performance by a minor is a lesser included offense of using a minor
in a sexual performance in Westerfield v. Commonwealth, No. 20060-CA-
000592-MR, 2007 WL 1196462 (Ky. App. Apr. 6, 2007). In Westerfield, the
defendant was charged and convicted of both crimes, and he argued on appeal
that the convictions violated double jeopardy. The Court of Appeals held that
KRS 531.310 requires [the defendant]: (1) to employ,
consent, authorize or induce; (2) a minor; (3) to engage in a
sexual performance. The elements of KRS 531.335 are to: (1)
knowingly; (2) have in possession or control; (3) any matter
visually depicting an actual sexual performance by a minor;
and (4) with knowledge of the matter's content, character,
and that the sexual performance is by a minor. Westerfield
concedes that KRS 531.310 requires additional proof of
consent, authorization, or inducement for the minor to
engage in a sexual performance. KRS 531.335 requires
possession of the material depicting the sexual performance
which KRS 531.310 does not. As a result, KRS 531.335 is
not a lesser included offense of KRS 531.310. The offense of
use of a minor in a sexual performance was completed when
Westerfield induced A.M.R. to remove her shirt and
photographed her. His decision to retain the photograph in
his possession was a distinct step that constituted a
separate criminal offense under 531.335.
Id. at *3.
These crimes require proof of different facts and constitute two separate
crimes. “An individual can induce a child to engage in a sexual performance
without creating any lasting media or possessing any record portraying the
event, and an individual may knowingly possess a depiction of a minor
engaging in a sexual performance without playing any role in the creation of
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the media.” Meade v. Commonwealth, 2014 WL 2809815, *4 (Ky. June 19,
2014). Therefore, possession of matter portraying a sexual performance by a
minor is not a lesser included offense to the use of a minor in a sexual
performance.
Applying the above reasoning to Davis’s case, possession of the photos is
a separate crime from using a minor in a sexual performance. The offense of
using a minor in a sexual performance was completed when Davis induced
M.D. to expose herself and photographed her. Uploading the photos to the
family laptop indicates possession, constituting an offense under KRS
531.335.4 He also committed the offense when he viewed the photos with M.D.
In actuality, Davis could have been charged with both crimes. “An instruction
on a separate, uncharged, but lesser’ crime — in other words, an alternative
theory of the crime — is required only when a guilty verdict as to the alternative
crime would amount to a defense to the charged crime, i.e., when being guilty
of both crimes is mutually exclusive.” Hudson v. Commonwealth, 202 S.W.3d
17, 22 (Ky. 2006).
In this case, taking the photos was not required for the crime of using a
minor in a sexual performance based on the statutory definitions provided in
KRS 531.300. Merely possessing the photos, and thus being guilty of violating
KRS 531.335, does not constitute a defense for using a minor in a sexual
4 The digital forensic investigator determined that the photos in question were
uploaded to and later deleted from the family laptop but could not state when they
were deleted. M.D. also testified that she and Davis looked at the photos on the laptop
together.
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performance. In sum, KRS 531.335 is not a lesser included offense of using a
minor in a sexual performance and the trial court did not err in denying Davis’s
request for an instruction on possession.
IV. The trial court did not err in denying Davis’s motion for a
directed verdict.
Davis also argues that the trial court erred in failing to grant his motion
for directed verdict because the evidence presented at trial was insufficient to
support a guilty verdict for use of a minor in a sexual performance. A trial
court’s ruling on a motion for directed verdict is reviewed under the following
standard:
When presented with a motion for a directed verdict, a
court must consider the evidence as a whole, presume the
Commonwealth's proof is true, draw all reasonable
inferences in favor of the Commonwealth, and leave
questions of weight and credibility to the jury. The trial
court is authorized to grant a directed verdict if the
Commonwealth has produced no more than a mere scintilla
of evidence; if the evidence is more than a scintilla and it
would be reasonable for the jury to return a verdict of guilty
based on it, then the motion should be denied. On appellate
review, the standard is slightly more deferential; the trial
court should be reversed only if it would be clearly
unreasonable for a jury to find guilt.
Acosta v. Commonwealth, 391 S.W.3d 809, 816 (Ky. 2013) (citations omitted).
Davis points to the following evidence to suggest that the jury could have
a reasonable doubt as to his guilt: (1) the photos show a female from below the
chest, making it impossible to identify her; (2) M.D. was the only witness to
positively identify the female;5 (3) M.D. lacked credibility because the jury
5 As noted, Megan, M.D.’s mother, identified the girl depicted in one of the
photos as M.D.
15
rejected her testimony that Davis sexually assaulted her, evidenced by an
acquittal of all other charges; (4) the camera and laptop were in Megan’s
possession when the allegations arose; (5) Megan had a financial motive to
implicate Davis in criminal activity; and (6) M.D. expressed her anger toward
Davis and loyalty to her mother. However, the trial court must presume that
all of the Commonwealth’s evidence is true. On appellate review, this Court
can only reverse the trial court if it would be clearly unreasonable for a jury to
find guilt. Based on the evidence presented, we cannot say it would have been
unreasonable for a jury to find Davis guilty of the four counts of use of a minor
in a sexual performance.
Davis claims that, even when viewed in a light most favorable to the
Commonwealth, the evidence presented was insufficient to support his
convictions for use of a minor in a sexual performance. We disagree. There
was sufficient evidence such that a reasonable juror could find guilt. M.D.
testified and identified herself in the four photos. As this Court stated in King
v. Commonwealth, 472 S.W.3d 523, 526 (Ky. 2015), “(t]he testimony of a single
witness is enough to support a conviction. Our courts have long held that a
jury is free to believe the testimony of one witness over the testimony of
others.” (Citations omitted).
Thus, M.D.’s sworn testimony that Davis staged the photos of her
engaged in a sexual performance was sufficient. M.D.’s testimony was further
corroborated by the photos themselves, Megan’s testimony that Davis was
home alone with M.D. when the photos were taken, and the digital forensic
16
evidence suggesting that the photos were uploaded to and subsequently deleted
from the family laptop. Given the evidence presented, the trial court did not err
in denying the motion for directed verdict.
V. The trial court properly denied the motion for a mistrial because
any discovery violation was properly cured by an admonition to
the jury.
Davis argues that the trial court erred in failing to grant a mistrial based
on the introduction of previously undisclosed evidence. At trial Megan testified
that she used the computer for work-related purposes and claimed that the
only time the computer left her possession was when she let Davis borrow it in
April 2012 so that he could erase files prior to Megan receiving the computer as
part of their divorce. Davis objected to this testimony because evidence of
allegations that he had deleted files on the laptop during this time frame had
not been previously disclosed by the Commonwealth. Davis asserts that had
he known about this evidence, he would have had his computer experts
examine the computer for evidence of file deletions that may have occurred
during April 2012.
The Commonwealth acknowledged that it did not disclose this
information to the defense because it learned of this time frame within the “last
month or two” during trial preparation. Davis argued that this evidence
potentially would have been exculpatory in nature or may have led to discovery
of exculpatory or impeachment evidence. Accordingly, Davis moved for a
mistrial because the withholding of the evidence impacted his ability to have a
17
fair trial. The trial court denied the motion, noted Davis’s objection and
permitted Megan’s testimony to continue.
At another bench conference nearly two hours after Megan’s testimony
Davis restated his motion for mistrial, moved for an admonition and
acknowledged that he should have requested an admonition previously. The
parties agreed to language for the admonition, and further agreed that the
Commonwealth would instruct Megan not to mention the April 2012 file
deletions any further. The jury was admonished as follows:
There was testimony from the witness this morning that around
the time of the divorce that the defendant asked to get the laptop
so he could delete some files and give her more room. You are not
to consider that testimony in any manner in your deliberations.
It’s though it never happened.
Davis argues that he was deprived of a fair trial because the
Commonwealth failed to reveal that Megan planned to provide the April 2012
time period in her testimony. Whether this issue is properly preserved is
questionable. The Commonwealth asserts that Davis never filed a written
request pursuant to RCr 7.24 requiring the Commonwealth to disclose certain
items. However, even if the issue was not properly preserved, any error was
cured by the admonition.
“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). The trial court admonished the jury according to
language agreed upon by both parties, directing the jury to disregard the
18
testimony about removing files from the laptop. There is nothing to suggest
that the jury was unable to follow the trial court’s admonition.
Even without the admonition, it is doubtful that we would find reversible
error. The charges in this case stem from four deleted photographs recovered
from the family computer. Any information about removing or deleting files
from the computer was relevant from the outset of this case. The
Commonwealth’s expert, an Assistant Chief of the Georgetown Police
Department trained in computer forensics, stated that no one knew when the
photos were deleted. The relevance of the laptop and photo deletion, paired
with Davis being a party to the exchange that took place in April 2012 with
Megan regarding possession of the laptop, makes it difficult to believe that
Megan’s testimony came as a total surprise. The laptop contained the primary
evidence of illegal activity and has been central to the allegations from the
start. Both parties had access to finding out when the laptop was in whose
hands and were aware of its relevance.
Davis also highlights that he was not permitted to cross-examine Megan
with respect to her testimony regarding April 2012 because the trial court
admonished the jury to ignore that portion of her testimony. However, Davis
specifically requested this admonition. Further, it was not until the
Commonwealth concluded its direct examination of Megan, nearly two hours
after the April 2012 statement, that Davis requested the admonition.
“Generally, a party is estopped from asserting an invited error on appeal.”
Quisenberry v. Commonwealth, 336 S.W.3d 19, 37 (Ky. 2011). Invited errors
19
“amount to a waiver, i.e., invitations that reflect the party’s knowing
relinquishment of a right, are not subject to appellate review.” Id. at 38. Any
lack of opportunity to question Megan regarding the time frame was initiated
by Davis himself, and he cannot now complain that the admonition deprived
him of the opportunity to cross-examine Megan regarding the statement.
Davis also argues that the trial court erred in denying his motion for a
mistrial. As this Court stated in Gray v. Commonwealth, 480 S.W.3d 253, 273
(Ky. 2016),
The decision to declare a mistrial is properly within the
sound discretion of the trial court. 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.” A “manifest necessity” can be understood as to be an
urgent need for a new trial in consideration of the totality of the
circumstances.
The trial court did not abuse its discretion in denying the motion for a mistrial
because any error was cured by the admonition. During his initial objection to
Megan’s testimony, Davis immediately requested a mistrial without considering
other options, such as a continuance to consult with co-counsel or his own
expert, or an admonition. There were other remedies available instead of
resorting to an extreme remedy reserved for cases of manifest necessity. In
considering the totality of the circumstances and evidence presented, a mistrial
was not warranted.
VL The trial court’s jury selection procedures were proper.
Davis further argues that the trial court’s jury selection procedures were
improper. The trial court summoned one hundred sixteen jurors and only
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seventy-eight appeared. Davis requested a delay of the trial to allow the sheriff
to locate some of the missing jurors. The sheriff located eight additional jurors,
placing eighty-six potential jurors in the jury pool. Davis requested a
continuance to permit the sheriff to locate even more jurors, but the trial court
denied the motion and began voir dire.
After informing the jury of the nature of the charges, the trial court
excused seven potential jurors for cause.6 In a bench conference, Juror A
reported that something happened to her in January 1969, but that she put it
behind her years ago. She insinuated that she was a victim of some type of
sexual crime nearly fifty years ago. The trial court recognized that, based on
Juror A’s demeanor, the events were troubling to her. The trial court
questioned whether she would be able to decide the issues solely on this case
and not based on her past, and she recognized that the case is about someone
else’s life, not what happened to her. Upon further questioning by the parties,
Juror A stated repeatedly and unequivocally that she could separate her
personal experience from the case. She said that she could not punish
someone else for what happened to her, and that she could decide guilt or
innocence.
Davis moved to strike Juror A arguing that she would be unable to
render a fair verdict based on her past experiences. The trial court determined
that she could be impartial but noted that it was a close question. The trial
6 These jurors reported that they could not be impartial because they or close
relatives had been victims of similar crimes, or they expressed generalized but extreme
discomfort with the subject matter.
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court was convinced by her repetitive assertions that “this is not about me, this
is about this particular case” that Juror A would decide the case based on what
happened in the courtroom, not on her personal experiences. Davis renewed
his objection.
Nineteen jurors were stricken for cause and thirty-two advanced to the
peremptory challenge phase of jury selection. Davis exercised a peremptory
strike on Juror A. Once all strikes were utilized, eighteen jurors remained.
Davis now argues that because he had to use a peremptory strike on Juror A,
who should have been stricken for cause, that he was prejudiced by being
unable to identify an alternate juror that he would have stricken.7
RCr 9.36(1) provides that the trial court shall excuse a juror for cause
when “there is reasonable ground to believe that the prospective juror cannot
render a fair and impartial verdict.” A trial court’s decision “to exclude a juror
for cause is based on the totality of the circumstances, not on a response to
any one question.” Fugett v. Commonwealth, 250 S.W.3d 604, 613 (Ky. 2008).
A determination of whether to exclude a juror for cause is reviewed for an
abuse of discretion. Little v. Commonwealth, 422 S.W.3d 238, 241 (Ky, 2013).
The test for abuse of discretion is whether the trial court’s decision was
“arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”
English, 993 S.W.2d at 945.
7 It is unclear why Davis could not have identified who he would have stricken
because at the time he exercised peremptory challenges he did not know whether the
Commonwealth would use some or all of their challenges or who they would challenge.
Several jurors remained at that juncture who Davis could have identified.
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In Little, this Court summarized the appropriate analysis where a
defendant has moved to strike a juror because that juror had been the victim of
a similar crime:
“[T]his Court has consistently held that the mere fact that a
juror or her family member has been the victim of a crime
similar to the one charged against the defendant does not, in
and of itself, justify that juror's excusal. Brown v.
Commonwealth, 313 S.W.3d 577, 598 (Ky.2010) (juror victim of
burglary); Richardson v. Commonwealth, 161 S.W.3d 327, 330
(Ky.2005) (juror victim of sexual abuse); Woodall v.
Commonwealth, 63 S.W.3d 104, 118 (Ky.2001) (juror sister of
rape victim); Hodge v. Commonwealth, 17 S.W.3d 824(Ky.2000) (citing several earlier cases holding similarly). In
those cases, additional evidence of bias is required, with
“[ojbvious factors bearing on the likelihood of bias [being] the
similarity between the crimes, the length of time since the
prospective juror's experience, and the degree of trauma the
prospective juror suffered.” Brown, 313 S.W.3d at 598.
Ultimately, “[i]t is the totality of all the circumstances, however,
and the prospective juror’s responses that must inform the trial
court’s ruling.” Id.422 S.W.3d at 242.
Juror A repeatedly stated that she could compartmentalize her personal
experience and decide Davis’s case solely upon the evidence presented. Early
in the bench conference the trial court expressed its concerns over whether she
was suitable for the jury, worrying that it may be difficult for Juror A to be
honest. Juror A assured the trial court that she could separate what happened
to her and only convict Davis if warranted by the evidence. In its lengthy
findings after Davis moved to strike Juror A, the trial court assessed her
answers to all questions, attitude and demeanor. Juror A never opined that
she believed Davis was guilty, and when asked whether she could set aside her
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experience and decide the case based solely upon the evidence presented, she
responded affirmatively. The totality of the circumstances indicated that she
could remain fair and impartial. Accordingly, the trial court did not abuse its
discretion in refusing to strike Juror A for cause.
Davis also argues that the absence of venire members ultimately proved
prejudicial because he was unable to identify another juror he would have
stricken if he did not peremptorily strike Juror A. He asserts that this
irregularity in jury selection proceedings substantially impacted his right to a
fair and impartial jury.
In Peterson v. Commonwealth, 160 S.W.3d 730, 731 (Ky. 2005), the
defendant moved for a continuance because twenty-one potential jurors failed
to appear. The trial court denied the motion, holding that the fifty-three
potential jurors present were sufficient. Id. On appeal, this Court held that
the defendant could not show that he was prejudiced or demonstrate that the
trial court erred in denying his motion for a continuance or dismissal. Id. at
732. “A mere complaint that some members of the venire did not appear for
jury duty is insufficient to demonstrate the trial court erred in this matter.” Id.
Davis has not articulated how he has been prejudiced or otherwise harmed by
being unable to designate a juror he would have stricken had there been more
prospective jurors. The fact that he cannot identify anyone who sat on the jury
who he would have peremptorily striken indicates a lack of prejudice.
Further, this Court has held that “in order to complain on appeal that he
was denied a peremptory strike challenge by a trial judge’s erroneous failure to
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grant a for-cause strike, the defendant must identify on his strike sheet any
additional jurors he would have struck.” Gabbard v. Commonwealth, 297
S.W.3d 844, 854 (Ky. 2009). Davis did not comply with this standard. Davis
was unable to identify any additional jurors he would have struck. Therefore,
he cannot argue that he was prejudiced by the jury selection procedures or
anyone that actually sat on the jury.
CONCLUSION
For the foregoing reasons, the judgment of the Scott Circuit Court is
affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Brent L. Caldwell
Caldwell Law Firm, PLLC
Bryce L. Caldwell
Gordan, Goetz, Johnson & Caldwell, PSC
COUNSEL FOR APPELLEE:
Daniel Jay Cameron
Attorney General of Kentucky <
Joseph A. Newberg, II
Assistant Attorney General
Office of Criminal Appeals
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