Melissa Pittman v. Commonwealth of Kentucky

• Court: Kentucky Supreme Court
• Decided: March 22, 2018
• Docket: 2017-SC-0196
• Status: Unpublished

Opinion

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION ' I

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, _ UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS TUE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION · BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: MARCH 22, 2018 NOT TO BE PUBLISHED

"uprttttt ~fourf nf ~i~ ~ l· 2017-Sc-ooo 196-M~O @ IP IE JJh ,f • ' . ' l1:V ~ LI is;; I )l.1/ I i 14m fl.JwtM, LJL MELISSA PITTMAN APPELLANT • ON APPEAL FROM MARION CIRCUIT COURT v .. HONORABLE ALLAN RAY BERTRAM, JUDGE NO. 13-CR-00089

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

A circuit court jury convicted Melissa Lynn Pittman of Second-Degree

Criminal Abuse, specifically of the charge that Pittman wantonly permitted

abuse that caused serious physical injury to a child, and of being a First-

Degree Persistent Felony Offender ("PFO"). The jury recommended a sentence of

five years' imprisonment on the.underlying c'riminal-abuse charge, enhanced to

twenty years as a PFO, and the trial court sentenced her accordingly. Pittman

appeals the resulting judgment to this Court as a matter of rightl and raises

two issues for review: 1) whether the trial court erroneously failed to strike a

prospective juror for cause; and 2) whether the trial court erroneously denied

Pittman's motions for a mistrial on two occasions. Finding no error in the

actions of the trial court, we affirm the judgment.

1 Ky. Const. § 110(2)(b). (

I. ANALYS~S.

A. The trial court did not err in denying Pittman's motion to strike a juror for cause. During voir dire, Pittman inquired of the prospective jurors whether any

of them thought that other countries that require an accused to prove

innocence, rather than the government to prove guilt, might have a better

system. Juror 1036 responded affirmatively to this question. Based on this

response and other statements Juror 1036 made during ensuing conversation

with the trial court and defense counsel, defense counsel moved to strike this.

juror for cause.

The Commonwealth disputes the preservation of this issue, but from our

reading of the record, we agree with Pittman that she properly preserved this

issue for appellate review. After the discussion that included Juror 1036, the

trial court, and defense counsel, Pittman moved to strike the juror for cause,

which the trial court denied. We take note that defense counsel's strike sheet

purports to identify another juror for whom Pittman would have removed by

peremptory strike had Pittman not felt compelled to use the peremptory strike

to remove Juror 1036.2 Pittman also argued the error in failing to excuse Juror

1036 for cause in her motion for a judgment notwithstanding the verdict.

Pittman's actions sufficiently preserve this issue for our review.

2See Gabbard v. Commonwealth, 297 S.W.3d 844, 854 (Ky. 2009) ("[T]his Court concludes that in order to complain on appeal that he was denied a peremptory challenge by a trial judge's erroneous failure to grant a for-cause strike, the defendant must identify on his strike sheet any additional jurors he would have struck.") 2 "We review a trial court's decision on whether to excuse a juror for cause

for abuse of discretion. "3 "The test for abuse of discretion is whether the trial

judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound

legal principles. "4

RCrS 9.36 states, "When there is reasonable ground to believe that a

prospective juror cannot .render a fair and impartial verdict on the evidence,

that juror shall be excused as not qualified." While it is true that "[t]he bias of a

prospective juror may be actual or implied, "6 and that "because the juror may

be unaware of [his or her own bias], it necessarily must be inferred from the

surrounding facts and circumstances, "7 the trial court did not err in denying

Pittman's motion to strike Juror 1036 for cause in this case.

After reviewing Juror 1036's conversation with the trial court and

defei:ise counsel, we find no reasonable ground for the trial court to believe

Juror 1036 to be biased. Recall the question Pittman posed to Juror 1036:

Whether the system would be better if an accused were required to prove

innocence, rather than the government prove the accused guilty. To start, this

question poses to the prospective juror an open-ended, theoretical question

3Adkins v. Commonwealth, 96 S.W.3d 779~ 795 (Ky. 2003) (citing Pendleton v. Commonwealth, 83 S.W;3d 522, 527 (Ky. 2002); Sholler v. Commonwealth, 969 S.W.2d, 706, 708 (Ky. 1998)). . . . .

4Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d,575, 581 (Ky. 2000) (citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)). s Kentucky Rules of Criminal Procedure. 6 U.S. v. Wood, 299 U.S.123, 133 (1936). 1McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984) (Brennan, J. and Marshall, J. concurring). 3 exploring a fundamental tenent of our criminal justice· system that did not bear

directly upon any prospective juror's ability to decide the facts of Pittman's case

in a fair and impartial manner according to Kentucky law.

In fact, defense counsel and the trial court directly asked Juror 1036

whether Juror: 1036's possibly favorable view of another system's requirement,

that the accused prove innocence, would affect Juror 1036's ability to decide

this case in a fair and impartial manner. And Juror 1036 responded with

numerous indications that it would not. Juror 1036 made such statements as:

"Right now, I wquld say I have no reason for that person over there to be guilty. I '

Cause I haven't seen any facts, nobody has presented a case."; "No, I don't

think [Pittman] has to prove innocence because that is not how our system (

works. I'm going to look at the facts."; " ... that's a completely different,

philosophical question."; "I believe in the American system .. .! think, basically, ' ' ·it is wrong. But do I abide by the way the laws of the country are written? Yes."

Furthermore, we r;i.ote the-following conversation between Juror 1036 and

the trial court:

.Trial Court: So, when you see the defendant here today in the courtroom, and she has this charge levied by the Grand Jury, is she guilty?

Juror 1036: She is innocent.

Trial Court: And you view her as innocent?

Juror 1036: She is innocent because I have seen no evidence that she is guilty.

Trial Court: Does she have to prove anything to you in order to walk out of here not guilty?

\ Juror 1036: Nope. She's (referring to the prosecutor) got to ~how . me stuff that she's (referring to Pittman) guilty. She (referring to Pittman) doesn't have to show me anything.

The conversation among the trial court, Pittman's counsel, and Juror

1036, shows that Juror 1036 understood that the Commonwealth has the

burden of proof in a criminal case and that he would abide by this principle of

law. In other words, the trial court, based ori Juror 1036's articulate and clear

responses, had no reason to believe that Juror 1036 was unfi{to serve on this

jury. So we conclude that the trial court did not abuse its discretion when it

denied Pittman's motion to strike Juror 1036.

B. The trial court did not err in denying Pittman's motions for a mistrial. \

Pittman argues that the trial court erred on two separate occasions when

it denied her motions for a m.istrial. Because Pittman timely moved for a

mistrial on both occasions, she has preserved these issues for our review. "[A]

ruling declaring a mistrial will not be disturbed absent an abuse of discretion

by the trial court. "8

"A mistrial is an 'extreme remedy' of last resort and is appropriate only

when there-appears in the record a manifest necessity."9 "The central inquiry is

whether either party's right to a fair trial has been infringed upon."10 A

"[m]istrial should only be 'used in those situations where an error of such .)

s Hammond v. Commonwealth, 504 S.W.3d 44, 51 (Ky. 2016) (quoting Gray v. Commonwealth, 480 S.W.3d 253, 273 (Ky. 2016)). 9 York v. Commonwealth, 353 S.W.3d 603, 607 (Ky. 2011) (internal citations omitted). 10 Id. (citing Graves v. Commonwealth, 285 S.W.3d 734, 737 (Ky. 2009))°.

5 ( import has been committed that a litigant's right to a fair and impartial jury

would be violated if a new trial were not held. "'11

l. The trial court did not .err in denying Pittman's first motion for a mistrial. During voir dire, the court took a short recess. Before coming back on

the record, Pittman herself requested to speak with the trial court. The parties

retired to chambers, and Pittman.herself expressed.concern that several

witnesses that she wanted to testify on her behalf had not been subpoenaed.

\ And she asked for a continuance to address this issue. ·

Defense counsel then moved for a mistrial because some members of the

assembled venire had heard Pittman's request to speak with the trial court and

defense counsel noted that she had heard several of the jurors say "mistrial" .

upon hearing Pittman's request. Defense counsel argued that the venire had

thus been tainted by her request. The trial court denied Pittman's motion for a

mistriaL

Pittman's only argument for the granting of a mistrial in this instance .is

a vague and unsubstantiated notion that, "Clearly, the panel became aware

that there was an issue with Ms. Pittman and might have made a neg~tive

inference from her action of requesting to speak with the judge." Without more,

such conjecture does not rise to the level of injustice required for the granting

of a mistrial. As such, the trial court did. not abuse its discretion in denying

Pittman's motion for a mistrial on this basis.

v

Kingrey v. Commonwealth, 396 $.W~3d 824, 829 (Ky. 2013) (citing Welch v. 11 Commonwealth, 235 S,W.3d 555, 559 (Ky. 2007)). .6 I 2. The trial court did not err in denying Pittman's second motion for a mistrial. During the presentation of Pittman's case-in-chief, Pittman's husband

testified as a witness for her. During the Commonwealth's cross examination,

the Commonwealth asked why he did not go to the hospital where the child

victim had been taken instead waiting until the next day after going home to

sleep. Pittman's husband responded, "I went home and got my wife out of jail."

In a bench conference, defense counsel moved for a mistrial, arguing that

the Commonwealth had just elicited KRE12 404(b) evidence without prior

notice. The Commonwealth responded that it had not attempted to elicit this

information that was volunteered by Pittman's husband. The trial court denied

Pittman's motion for a mistrial, but gr~nted Pittman's request for an

admonition, admonishing the jury to disregard Pittman's husband's response.

This Court has, several times, addressed the issue of whether an

unsolicited reference to prior criminal acts can be cured by an admonition to

disregard ,the testimony, concluding that such admonition does cure such

reference.13 Specifically, in Matthews v. Commonwealth, this Court stated:

We have long held that an admonition is usually sufficient to cure an erroneous admission of evidence, and there is a presumption that the jury will heed such an admonition. A trial court only declares a mistrial if a harmful event is of such magnitude that a litigant would be denied a fair and impartial trial and the prejudicial ~ffect could be removed in no other way. Stated

12 Kentucky Rules of Evidence.

13See Matthews v. Commonwealth, 163 S.W.3d 11, 17 (Ky. 2005); Sherroan v. Commonwealth, 142 S.W.3d 7, 17 (Ky. 2004); Gray v. Commonwealth, 203 S.W.3d 679, 691 (Ky. 2006). · 7 differently, the court must find a manifest, urgent, or real necessity for a mistrial.14

We have also previously outlined the "two circumstances in which the

presumptive efficacy of an admonition 'falters: (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 qefendant; or (2) when the question ' was \ asked without a factual basis and was 'inflammatory' or 'highly prejudicial. mis

Pittman has failed to suggest to us any specific way in which a mistrial ,

was warranted, either because the admonition failed to cure the taint or

because the taint itself warranted a mistrial. Pittman, instead, only makes

conclusory allegations that the jury disregarded the admonition ahd that the

statement violated Pittman's right to a fair trial. Again, without more, these ' '

simple, conclusory allegations do not render the trial court's denial of Pittman's

motion for a mistrial an abuse of discretion. As stated, a mistrial is· an extreme

remedy not to be granted lightly, and no facts exist in this case suggesting that

the granting of a mistrial was warranted, either because the admonition did not

sufficiently cure the taint or because the taint was inflammatory or highly

prejudicial.

14 Matthews, 163 S.W.3d at 17-18. 1s Dunlap v. Commonwealth, 435 S.W.3d 537, 570-71 (Ky. 2013) (quoting Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003)). 8 II. CONCLUSION.

We find no error by the trial court, and we affirm the judgment.

All sitting. All concur.

COUNSEL FOR APPELLANT:

Linda Roberts Horsman Assistant Public Advocate

COUNSEL FOR APPELLEE:

Andy Beshear Attorney General of Kentucky

James Daryl Havey Assistant Attorney General