Price v. Commonwealth , 2001 Ky. LEXIS 200 ( 2001 )

COOPER, Justice.

Appellant, Denzil “Peck” Price, was convicted by a Clay Circuit Court jury of assault in the first degree and sentenced to ten years in prison. The Court of Appeals affirmed. We granted discretionary review to consider the propriety and/or the prejudicial effect of a demonstration conducted during the prosecutor’s closing argument in which the prosecutor and the victim reenacted the crime. Although we find the demonstration to have been improper, we conclude that the trial judge did not abuse his discretion in denying Appellant’s motion for a mistrial; thus, we also affirm.

On November 30, 1995, Russell Wolfe, a fish and wildlife officer with the Kentucky Department of Fish and Wildlife Resources, was driving home in his official state vehicle when he encountered a pickup truck being operated in a reckless manner. Wolfe activated his blue emergency lights and gave pursuit, ultimately following the pickup track into Appellant’s driveway. The owner and operator of the pickup truck was Earl Dean Fields. Appellant was riding as a passenger. Both were highly intoxicated. Fields testified at trial that the two had consumed two “fifths” of vodka and an undetermined quantity of beer that day. Since Appellant was already at his home, Wolfe directed him to leave the scene and go into his house. Wolfe then used his two-way radio to inquire as to the status of Fields’s driver’s license. Meanwhile, Appellant armed himself with a .410 caliber shotgun and returned to the driveway. When Wolfe looked up from his radio, Appellant was standing approximately three feet away with the barrel of the shotgun aimed directly at his (Wolfe’s) forehead. Wolfe testified that he instinctively grabbed the barrel of the shotgun with his left hand and pushed it down away from his head. When he did so, Appellant pulled the trigger and shot Wolfe in the right thigh. Though he described the incident during his testimony, Wolfe did not attempt to demonstrate or otherwise reenact the crime. In fact, the shotgun was not introduced into evidence until after Wolfe testified.

Fields testified that he did not see Appellant point the gun at Wolfe but did see Appellant and Wolfe struggling over the weapon before the shot was fired. Appellant did not testify, but the jury heard an audiotaped statement he made to a state police detective shortly after the shooting. In that statement, Appellant admitted that he would have shot Wolfe in the head had Wolfe not grabbed the gun. The jury was instructed on assault in the first degree, i.e., intentionally causing serious physical injury by means of a deadly weapon, KRS 508.010(l)(a), but not on assault in the second degree, ie., wantonly causing serious physical injury by means of a deadly weapon, KRS 508.020(l)(c). During closing argument, defense counsel argued that despite Appellant’s drunken statement to the police detective, the shooting may have been accidental and might not have occurred had Wolfe not grabbed the gun.

Wolfe sat at the prosecutor’s counsel table during the entire trial, including closing arguments. A review of the trial videotape reveals that, during the course of his closing argument, the prosecutor picked up the shotgun, pointed it directly at Wolfe’s head from the stated distance of about three feet, and remarked: “As he tells you, Officer Wolfe tells you, when he gets back, what does he see? Three feet away from him?” At this point, Wolfe, as if in slow motion, raised his left hand above his head, then returned it to his side. The prosecutor continued: “What is he to do?” Wolfe, again as if in slow motion, raised his left hand above his head. The prosecutor continued: “Now, Officer Wolfe, you stand right there while I shoot you in the head.” As this statement was made, Wolfe placed his left hand on the barrel of the shotgun and pulled it down toward his right thigh, thus completing the reenactment of the crime. The prosecutor concluded: “He does what anybody else does. He jerked it. What was he to do?”

Defense counsel immediately objected and moved for a mistrial. At a hearing in chambers, both Wolfe and the prosecutor vehemently denied that the demonstration was pre-planned, though Wolfe stated in response to an inquiry from the trial judge that he did not know whether his act of grabbing the gun was voluntary or involuntary. The trial judge overruled the motion for a mistrial and admonished the jury to disregard the demonstration.

Wolfe’s participation in the reenactment of the crime during the prosecutor’s closing argument, whether planned or unplanned, was highly improper. Case law on this issue is, thankfully, sparse. In Cupp v. Commonwealth, 87 Ky. 35, 7 S.W. 405 (1888), it was held reversible error for the prosecutor to call the victim of an assault before the jury and, putting his hands on the face of the victim, say: “Gentlemen, look at that scar on his face. Is that worth only fifty dollars?” And in Stacy v. Williams, 253 Ky. 353, 69 S.W.2d 697, 707 (1934), it was held improper to permit a personal injury damages plaintiff to exhibit his injured leg to the jury while his attorney referred to and commented on it during closing argument. Closer to what occurred here is the case of Robinson v. Kathryn, 23 Ill.App.2d 5, 161 N.E.2d 477 (1959), wherein a plaintiff who had been injured in a motorcycle accident was permitted to demonstrate, during his attorney’s closing argument, the manner in which he was seated and would be driving the motorcycle, where his arms would be located, and how his arms would be affected by the approach of the defendant’s vehicle.

While it would have been proper for attorney for plaintiff to have seated himself in a chair with his arms akimbo, in typical motorcycle driver style, and to have used any reasonable technique to demonstrate such physical fact, the employment of his client in this fashion amounted to a use of demonstrative evidence which was clearly improper and afforded no opportunity for cross examination, defense or reply. The place for demonstrative evidence and the time for demonstrative evidence is during the course of the trial and prior to final argument. Final argument may properly employ demonstrations by the attorney, if such demonstrations are reasonably sustained by the evidence, but the technique of using the injured plaintiff in a visual demonstration requiring movement and activity on his part would open the door to strange and completely unsound demonstrations which in the end would defeat the ends of justice for all litigants.

Id. at 479.

Nevertheless, it has long been the law in Kentucky that an admonition to the jury to disregard an improper argument cures the error unless it appears the argument was so prejudicial, under the circumstances of the case, that an admonition could not cure it. Knuckles v. Commonwealth, Ky., 261 S.W.2d 667, 671 (1953); Thomas v. Commonwealth, 196 Ky. 539, 245 S.W. 164, 166 (1922). Here, both Appellant and Wolfe agreed that Appellant pointed the shotgun at Wolfe’s head, that Wolfe grabbed the barrel and pulled it down away from his head, and that Appellant shot Wolfe in the right thigh. The only issue in dispute was Appellant’s mens rea at the time the shot was fired, and the demonstration neither proved nor disproved the necessary element of intent. Thus, the improper demonstration was cured by the trial judge’s admonition and does not require reversal for a new trial.

The only other issue raised on appeal pertains to a motion for a new trial predicated upon an alleged incompetent juror. Juror No. 57, who sat as a juror on the case, had indicated on her juror qualification form that she was “mentally unstable” and had attached a letter from her psychiatrist who opined that she was “too unstable emotionally at this time to perform juror duties.” However, Appellant did not ask that Juror No. 57 be excused for cause, nor could this information be deemed newly discovered evidence, since Appellant’s attorney had Juror No. 57’s qualification form in his possession at the time he exercised his peremptory strikes. Except on grounds of newly discovered evidence, a motion for a new trial must be served within five days after the return of the verdict. RCr 10.06(1); Johnson v. Commonwealth, Ky., 17 S.W.3d 109, 112 (2000). Appellant’s motion was served nine days after the return of the verdict; thus, it was not timely served and was properly overruled.

Accordingly, the judgment of conviction and sentence imposed by the Clay Circuit Court, and the opinion of the Court of Appeals, are affirmed.

LAMBERT, C.J.; JOHNSTONE, STUMBO and WINTERSHEIMER, JJ„ concur. KELLER, J., concurs by separate opinion with GRAVES, J., joining that concurring opinion.