Grimes v. McAnulty

957 S.W.2d 223, 1997 Ky. LEXIS 118, 1997 WL 613360

• Court: Kentucky Supreme Court
• Decided: October 2, 1997
• Docket: 95-SC-745-MR
• Status: Published

Opinions

GRAVES, Justice.

Appellant, Christina Grimes, appeals as a matter of right from an order of the Court of Appeals denying her petition for a writ of prohibition. In her petition, Appellant seeks to prevent a retrial of her murder indictment on the grounds of double jeopardy. After hearing oral arguments and reviewing the record, we affirm the Court of Appeals.

James Grimes was shot to death in his home in Jefferson County on July 2, 1992. His wife, Appellant, was accused of causing his death and was charged with murder. A trial by jury was held in the Jefferson Circuit Court from July 12 through July 22, 1994. Appellant was the last witness to testify in her defense. At the conclusion of her direct examination the Commonwealth moved for a mistrial and, over the objection of Appellant, the motion was granted. When the trial judge .proposed to schedule a new trial date, Appellant petitioned the Court of Appeals for a writ of prohibition, claiming retrial would cause her “for the same offense to be twice put in jeopardy of life and limb.” U.S. Const, amend. V; Ky. Const. § 13. The Court of Appeals denied the petition and Appellant appealed to this Court as a matter of right. Ky. Const. § 115.

A writ of prohibition is akin to mandamus, which may only be granted when no other adequate remedy by appeal exists and, absent relief, a great injustice will occur. Haight v. Williamson, Ky., 833 S.W.2d 821 (1992), cert. denied, 507 U.S. 925, 113 S.Ct. 1296, 122 L.Ed.2d 687 (1993). In Macklin v. Ryan, Ky., 672 S.W.2d 60 (1984), this Court established that such a writ is appropriate when an accused is seeking protection from a retrial when a mistrial was inappropriately ordered. “Since a mistrial, by definition, does not dispose of the merits of a case or necessarily preclude future litigation, the appellant did not have an adequate remedy by appeal from the mistrial order.” Id. at 61.

The constitutional proscription against double jeopardy protects citizens inter alia from being prosecuted again for an offense for which a former prosecution resulted in either an acquittal or a conviction which has not been subsequently set aside. KRS 505.030(1). If, as here, the former prosecution was terminated by mistrial after the first witness was sworn and before the verdict was rendered, a retrial is precluded if the mistrial was granted without the defendant’s consent and in the absence of a manifest necessity to do so. KRS 505.030(4); Nichols v. Commonwealth, Ky., 657 S.W.2d 932 (1983), cert. denied, 465 U.S. 1028, 104 S.Ct. 1289, 79 L.Ed.2d 691 (1984).

The concept of “manifest necessity” was first enunciated in United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824). It recognizes the right of a defendant to have a trial completed by a particular tribunal which has been duly and legally selected to try him. Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949); Baker v. Commonwealth, 280 Ky. 165, 132 S.W.2d 766, 768 (1939). “[I]n the final analysis, the judge must always temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate.” United States v. Jorn, 400 U.S. 470, 486, 91 S.Ct. 547, 557-58, 27 L.Ed.2d 543 (1971). The most common example of “manifest necessity” to grant a mistrial is when a jury is deadlocked and unable to reach a verdict. E.g., Skaggs v. Commonwealth, Ky., 694 S.W.2d 672 (1985), cert. denied, 476 U.S. 1130, 106 S.Ct. 1998, 90 L.Ed.2d 678 (1986); Nichols v. Commonwealth, supra; Commonwealth v. Crooks, Ky., 655 S.W.2d 475 (1983). However, it has also been found to exist when the defendant introduces improper evidence which prejudices the Commonwealth’s right to a fair trial. Chapman v. Richardson, Ky., 740 S.W.2d 929 (1987); Stacy v. Manís, Ky., 709 S.W.2d 433 (1986).

In reviewing a decision to grant a mistrial, the trial court must have a measure of discretion. “The interest in orderly, impartial procedure would be impaired if he were deterred from exercising that power by a concern that at any time a reviewing court disagreed with his assessment of the trial situation a retrial would automatically be barred.” Arizona v. Washington, 434 U.S. 497, 513, 98 S.Ct. 824, 834, 54 L.Ed.2d 717 (1978). Furthermore, “[t]he adoption of a stringent standard of appellate review in this area ... would seriously impede the trial judge in the proper performance of his ‘duty, in order to protect the integrity of the trial..." Id. (Quoting United States v. Dinitz, 424 U.S. 600, 612, 96 S.Ct. 1075, 1082, 47 L.Ed.2d 267 (1976)).

There are compelling institutional considerations militating in favor of appellate deference to the trial judge’s evaluation of the significance of possible juror bias. He has seen and heard the jurors during voir dire examination. He is the judge most familiar with the evidence and the background of the case on trial. He has listened to the tone of the argument as it was delivered and has observed the apparent reaction of the jurors. In short, he is far more “conversant with the factors relevant to the determination” than any reviewing court can possibly be.

Washington, supra, at 513, 98 S.Ct. at 834 (quoting Wade, supra, at 687, 69 S.Ct. at 836).

Because a constitutionally protected interest is inevitably affected by any mistrial decision, the trial judge must exercise “sound discretion” in declaring a mistrial. Perez, supra.

In his written order, the trial judge explained that there was a manifest necessity to discharge the jury because of the introduction by Appellant of voluminous evidence of the victim’s prior acts of domestic violence and abuse directed against Appellant and her children. The judge stated that the admissibility of such evidence was conditionally predicated upon a showing that Appellant acted in self-defense. KRS 503.050(3). However, at the close of Appellant’s testimony the court concluded that Appellant had only established that the shooting was accidental, and thus was not entitled to introduce evidence of the victim’s prior bad acts.

This Court could not have required the defendant to disclose her ultimate testimony prior to taking the witness stand nor could this Court have required her to testify prior to offering any other proof. However, having now testified that she did not intend to fire the gun, i.e. it was an accident, the entire offer of proof of specific acts of domestic violence, not only becomes irrelevant, but inflammatory. The Court, prior to defendant’s presentation of her defense, could not have precluded her offer. However, at this point having heard her testimony the Court now finds that her offer of proof in support of self defense was a subterfuge to avoid the restrictions on character evidence otherwise applicable.

The Court concluded that the admission of the evidence was prejudicial to the Commonwealth, in that it conveyed to the jury that the “victim deserved to die”, and therefore no remedy other than a mistrial was adequate.

Thus, in deciding whether a manifest necessity did, in fact, exist to justify a mistrial in this case, we must necessarily decide whether the evidence presented at trial would have supported an instruction on self-protection. Specifically, is an accused entitled to the defense of self-protection notwithstanding her testimony that the victim’s death was the result of the unintended discharge of a weapon?

Appellant relies primarily on this Court’s decision in Pace v. Commonwealth, Ky., 561 S.W.2d 664 (1978). In Pace, the defendant was indicted for the shooting death of her husband. The defendant testified at trial that she and her husband were fighting over the gun when it accidentally discharged. She further testified that the victim had threatened to kill her and her daughter. The trial court refused to give a self-defense instruction in light of defendant’s testimony of the accidental discharge. This Court reversed the conviction, holding that despite defendant’s testimony of accident, where other evidence is introduced indicating the defendant could have also acted in self-defense, a self-defense instruction is warranted. Id. at 667.

We perceive marked differences between Pace and the present ease. Notably, although the defendant in Pace testified that the shooting was accidental, other testimony presented established that prior to the incident, defendant had told a relative that she had thrown a glass at the victim during an argument and “If he .keeps on, I’m going to kill him.” Further, the defendant had initially informed authorities that the victim killed himself. Thus, despite the defendant’s ultimate testimony that the shooting was accidental, other evidence presented at trial supported the possibility that she intentionally shot her husband.

Here, we find nothing in the testimony and evidence presented to support a finding that Appellant intentionally shot her husband. During voir dire, defense counsel informed the jury that Appellant’s defense would be accident. During opening statements, counsel again stated that Appellant was a “victim of accident.” In the 911 tape which was introduced, Appellant said, “I just shot my husband ... on accident.” EMS tapes, which were also introduced, contained Appellant’s statements that “He told me to shoot him”, “I didn’t know it was loaded”, and “I didn’t mean to.” Officer James Gray, who was the first to arrive at the scene, testified that Appellant told him the victim gave her the gun and told her to shoot him. She told Officer Gray, “I never even knew it was loaded or nothing” and “I don’t know anything about guns or any shooting or anything like this.”

When Appellant took the witness stand, she recounted the victim’s abuse of her and her children. Defense counsel elicited information concerning bad acts of the victim from the 1970’s up until the time of his death. Finally, Appellant described the events of July 2, 1992. She stated that she and her husband had a conversation at their home regarding a telephone number that she had found on his beeper. They talked for awhile and then he left for a period of about four hours. According to Appellant, when her husband returned, he attacked her and dragged her outside to the patio. He then returned to the house. Appellant testified that she asked her husband where his gun was, because she knew he usually carried it with him at all times. Appellant’s husband went to the kitchen, got the gun and brought it back. Appellant testified,

I put my hand out and I said, ‘Please let me have the gun, let me have the gun.’ And he put the gun in his [left] hand and he turned it around [toward himself] ... and all I did was went like this [reaching for the gun] and it went off. I fell back after he put the gun in my hand ... and it went off.

Appellant testified that she thought her husband was playing a game when he fell; she did not realize he had been shot until she saw the blood.

A defendant is entitled to have the jury instructed on the merits of any lawful defense which he or she has. Sanborn v. Commonwealth, Ky., 754 S.W.2d 534 (1988); Curtis v. Commonwealth, 169 Ky. 727, 184 S.W. 1105 (1916). However, the entitlement to an affirmative instruction is dependant upon the introduction of some evidence justifying a reasonable inference of the existence of a defense. Brown v. Commonwealth, Ky., 555 S.W.2d 252, 257 (1977); Jewell v. Commonwealth, Ky., 549 S.W.2d 807, 812 (1977), overruled on other grounds, Payne v. Commonwealth, Ky., 623 S.W.2d 867 (1981).

After reviewing the evidence and testimony presented, we are of the opinion that nothing was presented to indicate that Appellant acted in self-defense. We recognize that our holding in Pace, supra, may be read to authorize a self-defense instruction notwithstanding a defendant’s claim of accident. “The mere fact that these defenses are inconsistent ... should not preclude a jury from considering both theories under appropriate circumstances.” Id. at 666. However, despite the fact that the defendant’s testimony in Pace rested on accident, other evidence introduced created an issue as to whether she acted in self-defense. That simply is not the case here. Therefore, we conclude the trial judge acted well within his discretion in determining that the introduction of prior bad acts of the victim, in the absence of any evidence of self-defense, was so inflammatory and prejudicial as to create a manifest necessity for mistrial. We again defer to the language set forth in Arizona v. Washington, supra,

The trial judge did not act precipitately in response to the prosecutor’s request for a mistrial. On the contrary, evincing a concern for the possible double jeopardy consequences of an erroneous ruling, he gave both defense counsel and the prosecutor full opportunity to explain their positions on the propriety of a mistrial. We are therefore persuaded by the record that the trial judge acted responsibly and deliberately, and accorded careful consideration to respondent’s interest in having the trial concluded in a single proceeding. Since he exercised “sound discretion” ... the mistrial order is supported by the “high degree” of necessity which is required in a case of this kind.

Id. at 515-516, 98 S.Ct. at 835.

In this opinion we have concluded that the trial judge appropriately determined the law under Pace, supra, and, although inconsistent defenses could have been appropriate, such was not the case given the evidence presented. However, it is our opinion that the holding of Pace is fundamentally flawed. A defendant who affirmatively asserts the defense of accident cannot also claim self-protection.

Prior to our decision in Pace, this Court had repeatedly affirmed the general principle that when a defendant in a homicide prosecution admits the killing, but claims it was an accident, he is not entitled to a self-defense instruction. Howard v. Commonwealth, Ky., 240 S.W.2d 616 (1951); Howard v. Commonwealth, 260 Ky. 467, 86 S.W.2d 126 (1935); Pelfrey v. Commonwealth, 247 Ky. 484, 57 S.W.2d 474 (1933); and Maiden v. Commonwealth, 203 Ky. 446, 262 S.W. 588 (1924). By its very nature, self-defense relates to an intentional or knowing use of force and not an accidental shooting. “In Kentucky we have long recognized as fundamental that when the accused has ‘admitted the shooting’ and then ‘attempted to justify it on the grounds of self protection ... there is no evidence that his actions were anything other than intentional.’ ” McGinnis v. Commonwealth, Ky., 875 S.W.2d 518, 521 (1994) (quoting Shannon v. Commonwealth, Ky., 767 S.W.2d 548, 548-549 (1988)). Pursuant to self-defense the defendant admits, but seeks to justify, the intentional commission of the act, whereas the essence of an accident defense is the defendant’s contention that he did not intentionally commit the act the state alleges constitutes a crime.

We are persuaded by the rationale of Justice Stephenson in his dissent to the Pace opinion,

Particularly as here in an unwitnessed killing, I do not believe that there is a rational basis for a jury to infer self-defense where the defendant herself testified that the killing was accidental and did not testify that she intentionally killed the deceased in fear of serious bodily harm or death at his hands. Accident is involuntary; self-defense is intentional. It is recognized by all that these defenses are contradictory.

Id. at 670.

Stephenson further opined that,

The majority opinion will impose an intolerable burden upon the trial bench in attempting to determine if the circumstances of cases such as this warrant a self-defense instruction. The practical solution to this problem will undoubtedly result in the various trial courts’ giving a self-defense instruction if requested in every case where death resulted during the course of a struggle or altercation.

Id.

We therefore conclude that the defenses of self-defense and accident are “mutually exclusive, the former contemplating an intentional act leading to death while the latter negatives such intention.” Id. at 671. A defendant cannot assert accident yet alternatively claim an intentional act done in self-defense, without affirmatively presenting evidence of self-defense. Therefore, we overrule Pace.

The decision of the Court of Appeals denying Appellant’s writ of prohibition is affirmed. Retrial of Appellant under the murder indictment is not barred under the principles of double jeopardy.

GRAVES, JOHNSTONE, LAMBERT and WINTERSHEIMER, JJ., concur. JOHNSTONE, J., concurs by separate opinion in which GRAVES, and LAMBERT, JJ., join. COOPER, J., dissents by separate opinion in which STUMBO, J., joins. STEPHENS, C.J., dissents separately without an opinion.