Sneed v. Burress

500 S.W.3d 791, 2016 WL 1068623

• Court: Kentucky Supreme Court
• Decided: October 20, 2016
• Docket: 2015-SC-000169-MR
• Status: Published

Opinions

OPINION OF THE COURT BY

JUSTICE CUNNINGHAM

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.¹ 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

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 abqut [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 com-t 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. 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 necessity¹ for a mistrial or 2) the 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^] 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 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 “[n]o 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 “EIRE 608(b) does not give parties a ‘right’ to cross-examine on specific acts found to be probative of truthfulness/untruthful-ness_” 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 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 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 “[ojpening 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 “[njeither 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 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 Gant-ley, 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 ease 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, (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 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 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.

1 . A pseudonym is being used to protect her anonymity.

2 . This portion of defense 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.