Opinion
NO. 2011-CA-002288-MR
05-17-2013
JASON NAPIER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Theodore S. Shouse Louisville, Kentucky Steve R. Romines Louisville, Kentucky ORAL ARGUMENT FOR APPELLANT: Theodore S. Shouse Louisville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky ORAL ARGUMENT FOR APPELLEE: Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM LINCOLN CIRCUIT COURT
HONORABLE DAVID A. TAPP, JUDGE
ACTION NO. 10-CR-00001
OPINION
AFFIRMING
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BEFORE: DIXON, LAMBERT, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Jason Napier brings this appeal from a November 18, 2011, judgment of the Lincoln Circuit Court upon a jury verdict finding him guilty of second-degree manslaughter and criminal abuse of a four-year-old child and sentencing him to a total of fifteen-years' imprisonment. We affirm.
Appellant was convicted of the manslaughter and abuse of his girlfriend's four-year-old child, Nathaniel. The record indicates that appellant and his girlfriend, Jessica Noble, were living together in a trailer with Nathaniel in June 2009. Nathaniel died of blunt force trauma that caused a linear fracture to the back side of his skull. The head trauma sustained by Nathaniel undisputedly took place on July 25, 2009; however, the facts surrounding the injury to Nathaniel were disputed at trial.
According to the Commonwealth, appellant inflicted the injury to Nathaniel that ultimately caused his death. The most condemning testimony on behalf of the Commonwealth came from Jason Sparks. Sparks was a friend of appellant and went to appellant's trailer for a drug buy on the evening of July 25, 2009. After repeatedly knocking on the front door, Sparks testified that appellant opened the door, and to Sparks' incredulity, appellant appeared with Nathaniel draped over his shoulder. According to Sparks, Nathaniel was soaking wet, completely naked, and totally unresponsive. Sparks stated that appellant could not explain Nathaniel's condition and simply repeated that Nathaniel suddenly lost consciousness while getting bathed. To illustrate Nathaniel's unconscious state, Sparks testified that appellant held Nathaniel upright with Nathaniel's body extended vertically and then simply dropped him. Upon being dropped, Nathaniel's body fell hitting the arm of the couch and then to the floor. To his horror, Sparks affirmed that appellant did nothing after dropping Nathaniel. Rather, Sparks recalled that he picked up Nathaniel and placed him on the couch. Throughout this time, Sparks stated that he repeatedly urged appellant to call 911, but appellant refused and wanted to wait until Nathaniel's mother, Noble, returned from WalMart. Noble also testified at the trial. Of particular import, she testified that appellant admitted to her that he caused Nathaniel's head injury.
Conversely, appellant's defense was that Nathaniel fell and accidentally hit his head causing the trauma to his skull or that Noble, in fact, caused Nathaniel's head injury. During cross-examination of Noble by the defense counsel, Noble admitted that the Commonwealth charged her with manslaughter and criminal abuse in connection with the death of Nathaniel; however, Noble and the Commonwealth reached a plea agreement. Noble also stated that under the terms of the plea agreement, she pleaded guilty to facilitation to commit second-degree manslaughter and agreed to testify against appellant. The defense pointed out that Noble was an admitted drug abuser and did not have custody of her other two children. Additionally, the defense produced a witness who testified that Noble tried to "give" Nathaniel to her some two months before his death. Appellant's mother also testified that she found a broken concrete block on the deck of appellant's trailer with a stain on it. She thought Nathaniel had fallen and hit his head on that block, thus causing his fatal head injury.
A jury trial ensued, and the jury ultimately found appellant guilty of second-degree manslaughter and criminal abuse. By final judgment entered November 18, 2011, the circuit court sentenced appellant to a total sentence of fifteen-years' imprisonment. This appeal follows.
Appellant contends that the circuit court erred by failing to grant his motion for a mistrial due to Noble's reference to a polygraph examination during her trial testimony. For the following reasons, we disagree.
During Noble's testimony at trial, defense counsel was conducting cross-examination of Noble and was questioning her about the plea agreement with the Commonwealth when the following exchange took place:
Defense Counsel: You were not offered 15 years.Thereupon, defense counsel objected and moved for a mistrial based upon Noble's reference to taking a polygraph examination. The circuit court denied the motion for mistrial and admonished the jury to disregard Noble's response.
Noble: No.
Defense Counsel: Until August of 2010, correct?
Noble: Yes[.]
Defense Counsel: And when you were offered 15 years, you snatched it up, didn't you?
Noble: Yep. It was right after I passed the polygraph exam. (Citation omitted.)
In denying the motion for mistrial, the trial court reasoned:
You all have been hammering on her, very persuasively with great talent upon her inconsistent statements, her false statements, how she came to get this offer, the proffer she made to the court, and the fact that she made all these previous false statements, the fact she made false statements in her proffer, that she snapped up this offer as soon as it was made and everything.
. . . .
[T]he witness, who has been polled quite effectively, is responding she did not snap up the deal at all. It was only after this event involving the polygraph occurred and only as it turns out, at least based on what the Commonwealth is asserting, that her counsel disclosed to the Commonwealth and secured for her this favorable plea agreement. So, I believe that to grant a mistrial on such grounds is inappropriate. So I am denying that request. (Citation omitted.)
In this Commonwealth, it is well-settled that evidence of a polygraph examination is inadmissible. Conley v. Com., 382 S.W.2d 865 (Ky. 1964). Also, our Courts have extended such inadmissibility to the "mention of the taking of a polygraph [where] the purpose of which is to bolster the claim of credibility or lack of credibility of a particular witness[.]" Ice v. Com., 667 S.W.2d 671, 675 (Ky. 1984). However, it is likewise clear that not every reference to a polygraph examination results in prejudicial error. Conley, 382 S.W.2d 865. Rather, the trial court may only grant a mistrial where the record reveals "manifest necessity." Skaggs v. Com., 694 S.W.2d 672 (Ky. 1985). And, our Supreme Court has instructed that the test for a mistrial "permits a balancing of competing interests" and should only be utilized in the rarest of circumstances:
Skaggs v. Commonwealth, 694 S.W.2d 672 (Ky. 1985) was vacated on other grounds by Skaggs v. Parker, 235 F.3d 261 (6th Cir. 2000). See also Callihan v. Com., 142 S.W.3d 123 (Ky. 2004).
This test permits a balancing of the competing interests present whenever a Motion for Mistrial is advanced . . . . It is universally agreed that a mistrial is an extreme remedy and should be resorted to only when there is a fundamental defect in the proceedings which will resultMajor v. Com., 177 S.W.3d 700, 709 (Ky. 2006) (quoting Gould v. Charlton Co. Inc., 929 S.W.2d 734, 737-38 (Ky. 1996)).
in a manifest injustice. The occurrence complained of must be of such character and magnitude that a litigant will be denied a fair and impartial trial and the prejudicial effect can be removed in no other way.
In this case, we are unable to conclude that the trial court committed error by denying appellant's motion for mistrial. From the cross-examination of Noble, we are inclined to agree with the trial court that Noble was simply answering defense counsel's questioning concerning whether she was "snapping up the deal" with the Commonwealth, and we believe that her mention of the polygraph examination was inadvertent. Moreover, the evidence amassed against appellant was considerable. Additionally, the trial court gave the jury an admonition not to consider Noble's mention of a polygraph examination, and there is no basis or support in the record to conclude that the jury failed to follow the admonition. Considering the circumstances herein, we conclude that no manifest necessity was demonstrated entitling appellant to a mistrial.
Upon consideration of the facts in this case, we do not believe that an exception arises regarding the presumptive efficacy of a jury admonition as set forth in Johnson v. Commonwealth, 105 S.W.3d 430 (Ky. 2003) that warrants a mistrial. Additionally, during closing argument, the Commonwealth acknowledged that Jessica Noble was one of the "least important" witnesses in the case.
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We view appellant's remaining contention to be without merit.
For the foregoing reasons, the order of the Lincoln Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Theodore S. Shouse
Louisville, Kentucky
Steve R. Romines
Louisville, Kentucky
ORAL ARGUMENT FOR
APPELLANT:
Theodore S. Shouse
Louisville, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky
ORAL ARGUMENT FOR
APPELLEE:
Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky