Opinion
NO. 2011-CA-002003-MR
03-07-2014
LEON M. GRIDER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS AND ORAL ARGUMENTS FOR APPELLANT: J. Vincent Aprile, II Louisville, Kentucky BRIEF AND ORAL ARGUMENTS FOR APPELLEE: Jack Conway Attorney General of Kentucky Jeanne Anderson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM ADAIR CIRCUIT COURT
HONORABLE JAMES L. BOWLING, JR., JUDGE
ACTION NO. 05-CR-00090
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; CAPERTON AND NICKELL, JUDGES. CAPERTON, JUDGE: Leon M. Grider appeals from his conviction by jury trial of trafficking in a controlled substance in the first degree, first offense, for which he was sentenced to nine years' imprisonment, probated for five years. After a thorough review of the parties' arguments, the record, and the applicable law, we find no reversible error and, accordingly, affirm.
On August 23, 2005, Grider was indicted in Adair County on one count of trafficking in a controlled substance in the first degree, first offense, a violation of Kentucky Revised Statutes (KRS) 21A.1412, a Class C felony, and one count of trafficking in a controlled substance in the third degree, first offense, a violation of KRS 218A.1414, a Class A misdemeanor. On May 30, 2006, the misdemeanor offense was dismissed. At the time, Grider was a pharmacist and owner of three drug stores, each named Grider Drugs, with pharmacies in Russell Springs, Russell County, Kentucky.
Kentucky State Police Detective Scott Hammond was working on the Drug Enforcement Special Investigations Unit when he received a complaint from the Kentucky Board of Pharmacy concerning Grider Drug Stores. Detective Hammond contacted Joe Michael Irvin, the Chief of Russell Springs Police Department, to assist him in his investigation.
Irvin and Hammond used Leah Wilson as their confidential informant ("CI"). While working as a CI in this case, Wilson was addicted to drugs, was a paid informant, and continued to sell illegally controlled substances. Wilson lived in a mobile home in Adair County, which is adjacent to Russell County. On June 4, 2004, Wilson telephoned Grider and asked him to bring her four or five methadone pills. The officers attempted to set up recording equipment in Wilson's home but the equipment failed to work. The officers eventually placed a video recorder under a chair angled toward the door where a person would enter Wilson's trailer.
The officers went down the road from Wilson's home and hid in a secluded wooded area. As a result, none of the officers were present at Wilson's mobile home nor were they in position to identify either the vehicle that drove up to the mobile home or the person who exited the vehicle and entered the mobile home.
The video recorder recorded a transaction between Wilson and another person, in which Wilson received a distributor's bottle of 100 methadone pills and a taped-up strip of paper containing 60 Xanax pills. The other person in the video is viewed only from the neck down based on the angle of the camera. The person in the recording does not ask Wilson for payment; instead he asks if Wilson is afraid and does she want him to stay the night? Wilson testified that this person was Grider.
Officer Jamie Rogers testified that he surveilled Grider on June 4, 2004, in anticipation of the controlled buy. Officer Rogers lost sight of Grider prior to the Wilson transaction. At the time he lost sight of Grider, he was traveling in Russell County on a road that could have taken him to Adair County and Wilson's home. Officer Rogers testified that Grider was wearing the same color pants and shirt as the person in the video recording at Wilson's home. However, the police report that Officer Rogers filed in 2004 described Grider as wearing a shirt and pants different from both his trial testimony and the person in the video recording.
During defense counsel's cross-examination, Chief Irvin testified that Wilson had worked for him as a CI on "the other trafficking cases involving Mr. Grider in Russell County." The trial court had previously ruled said evidence of other charges pending in Russell County against Grider inadmissible. The court denied defense counsel's motion for a mistrial.
The Commonwealth played for the jury a video deposition of Grider in Leon and Anna Mae Grider v. City of Russell Springs, Kentucky, et al., taken in a federal case and conducted on May 20, 2011. During the deposition Grider states that he delivered some prescriptions to Wilson, but not the controlled substances or the methadone. Grider, in response to questioning, discusses going to Wilson's residence and also describes evidence seen in the tape during the transaction with Wilson.
The parties cited to this purported case. Unfortunately, neither party provided a full citation. No issue was raised concerning the authenticity of the video deposition.
After hearing the aforementioned evidence, the jury deliberated and convicted Grider of first-degree trafficking in a controlled substance, first offense, and sentenced him to nine years' imprisonment probated for five years. It is from this conviction and sentence that Grider now appeals.
On appeal Grider presents three alleged errors, namely: (1) the court erred by overruling Grider's objection to the admission of the video deposition taken in a federal case by the Commonwealth; (2) the court erred when it denied Grider's motion for a continuance due to defense counsel's illness; and (3) the court erred in denying his subsequent motion for a mistrial based on the testimony of Chief Irvin that concerned subject matter the court had previously ruled inadmissible because it referred to other criminal investigations.
In response, the Commonwealth contends that the trial court did not err because: (1) the video deposition was properly admitted into evidence; (2) no continuance was required; and (3) no mistrial was required. We now address the parties' arguments in turn.
At trial the Commonwealth advised the court of its intention to play for the jury a portion of a video deposition from Grider's federal lawsuit against the City of Russell Springs. Defense counsel timely objected on hearsay grounds, arguing that the questions were ambiguous and unclear and that Grider's answers seemed to be a combination of talking about when he was present at Wilson's residence and talking about the tape of the incident that he had been provided through discovery. The trial court overruled the objection.
In said deposition, Grider discusses delivering prescriptions to Wilson but denied providing her with controlled substances, explicitly methadone. Grider then comments on a videotape and how he was not sure "what went down there."
On appeal, Grider argues that the denial of the objection was error and additionally seeks palpable error review on two other grounds: (1) that in the video deposition Grider was asked to improperly comment on Wilson's veracity; and (2) that the video deposition discusses other uncharged bad acts. We accordingly review these two alleged errors for palpable error infra.
Grider was explicitly asked whether Wilson was lying, to which he replied yes.
Grider is asked whether Wilson was dating Phillip Grider at the time, to which he replied yes. Grider was then asked whether he knew that Phillip Grider was also a witness against him, to which he replied yes. Grider then is asked whether he ever provided Phillip Grider with narcotics of any sort without a prescription, to which Grider replies no. He was then asked whether he had ever done the same for Wilson, to which he replied no.
The issues surrounding the admission of the video deposition and the veracity of a witness and prior bad acts were not properly preserved for appeal. Accordingly, we shall review this claimed error under Kentucky Rules of Criminal Procedure (RCr) 10.26, which states:
A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.Thus, under RCr 10.26, we may grant relief for an unpreserved error only when the error is: (1) palpable; (2) affects the substantial rights of a party; and (3) has caused a manifest injustice. Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky. 2009). "Manifest injustice" requires showing a probability of a different result or error so fundamental as to threaten a defendant's entitlement to due process of law, i.e., the error so seriously affected the fairness, integrity, or public reputation of the proceeding as to be "shocking or jurisprudentially intolerable." Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006).
Further refining the parameters of RCr 10.26, the Kentucky Supreme Court in Brewer v. Commonwealth, 206 S.W.3d 343 (Ky. 2006), undertook an analysis of what constitutes a palpable error:
For an error to be palpable, it must be easily perceptible, plain, obvious and readily noticeable. A palpable error must involve prejudice more egregious than that occurring in reversible error. A palpable error must be so grave in nature that if it were uncorrected, it would seriously affect the fairness of the proceedings. Thus, what a palpable error analysis "boils down to" is whether the reviewing court believes there is a "substantial possibility" that the result in the case would have been different without the error. If not, the error cannot be palpable.Id. at 349.
Briefly, we note that Kentucky Rules of Evidence (KRE) 801A(b)(1) states:
(b) Admissions of parties. A statement is not excluded by the hearsay rule, even though the declarant is available as a witness, if the statement is offered against a party and is:The video deposition, though hearsay, was admissible as an admission of Grider as a party to the litigation. Thus, the trial court did not abuse its discretion in determining that the video deposition of Grider was not excludable hearsay per KRE 801A(b)(1).
(1) The party's own statement, in either an individual or a representative capacity;
Having so found, we now assess whether the content of the video deposition ran afoul of other evidentiary requirements, namely, the balancing test of KRE 403 and the prohibition against other bad acts to prove the character of the person in order to show conformity under KRE 404(b).
KRE 404(b) makes evidence of other crimes, wrongs, or acts inadmissible to prove the character of a person in order to show conformity therewith. Two exceptions exist within the rule. KRE 404(b)(1) allows admission of the evidence if offered for some other purpose, such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. KRE 404(b)(2) allows admission of the evidence if it is so inextricably intertwined with other evidence essential to the case that separation of the two could not be accomplished without serious adverse effect on the offering party. KRE 404(b) applies to other acts committed subsequently to the charged crime as well as to other acts committed by persons other than the criminal defendant. Robert G. Lawson, The Kentucky Evidence Law Handbook, § 2.25[2], at 125 (4th ed. LexisNexis 2003). Accordingly, the evidence rule would be applicable to the case sub judice.
In determining the admissibility of other acts evidence, our courts use a three-tier inquiry to assess the evidence: (1) relevance, (2) probativeness, and (3) prejudice. Bell v. Commonwealth, 875 S.W.2d 882 (Ky. 1994). The inquiry into relevance is whether the evidence was relevant to prove something other than propensity to commit a crime. Bell at 889. The next inquiry under Bell, probativeness, requires the court to decide whether the evidence of the uncharged crime is sufficiently probative of its commission by the accused to warrant its introduction into evidence. Id. at 890. The last inquiry, prejudice, requires a court to determine whether the potential for undue prejudice from the use of other crimes evidence substantially outweighs its probative value. Id. See also Davis v. Commonwealth, 147 S.W.3d 709, 725 (Ky. 2004) ("Although relevant and probative, the evidence can still be excluded if its probative value is substantially outweighed by its prejudicial effect. KRE 403.").
Sub judice, the unredacted video deposition from a federal civil case asked Grider if he knew that Wilson was dating Phillip Grider at the time and if he knew that Phillip Grider was also a witness against him. Grider replied yes to both questions. Grider was then asked if he had ever provided narcotics to Phillip Grider without a prescription, to which he replied no. This line of questioning clearly runs afoul of KRE 404(b); essentially the jury is informed that Grider was involved with Phillip, a witness against him, presumably for narcotics trafficking. However, the issue before us is not whether it was error but whether it was palpable error. Here the jury was presented other evidence on which to convict Grider, namely, the videotape of the narcotics transaction and the testimony of Wilson identifying Grider in said videotape. Given that this is a palpable error review, we believe that there simply was not a substantial possibility that the result in the case would have been different without the error in admitting the un-redacted video deposition. Accordingly, we decline to reverse on this ground.
Also at issue is whether the line of questioning in the video deposition, which called upon Grider to remark on the veracity of the other testifying witness, Wilson, constitutes palpable error. The Kentucky Supreme Court addressed a similar situation in Ernst v. Commonwealth, 160 S.W.3d 744, 764 (Ky. 2005), wherein the Court held:
On several occasions, the Commonwealth's Attorney brought to Appellant's attention the trial testimony of various Commonwealth's witnesses and asked him whether he would characterize those statements as lies. We have held that this method of cross-examination is improper. Moss v. Commonwealth, 949 S.W.2d 579, 583 (Ky. 1997) ("A witness should not be required to characterize the testimony of another witness, particularly a well-respected police officer, as lying. Such a characterization places the witness in such an unflattering light as to potentially undermine his entire testimony."). However, after a review of the record as a whole, we are not persuaded that the result would have been different had these questions been withheld. Compare Caudill, 120 S.W.3d at 662; Tamme, 973 S.W.2d at 28; Moss, 949 S.W.2d at 583.Ernst at 764.
While the questions were improper, they did not result in manifest injustice, thus did not amount to palpable error.
The case of Moss v. Commonwealth, 949 S.W.2d 579 (Ky. 1997), offers guidance on this matter. In Moss, the appellant:
was asked and badgered into stating that Officer Wiley, a leading witness for the Commonwealth, was lying. Among other things, appellant was asked, "So Officer Wiley is lying? Is that what you're saying, Mr. Moss?" After appellant had attempted to deflect the question by referring it to Officer Wiley, the prosecutor responded, "No, sir, I don't. I have to ask you. So you think Officer Wiley is lying if he says he didn't see anyone but you come out of that fence?"Id. at 583. The Supreme Court said that if the error had been preserved, the Court would consider such a line of questioning improper. Id. But, like Grider, Moss had not preserved the claimed error but instead sought palpable error review. The offense claimed by Grider is a single question, not a line of badgering questioning; not one posed by the Commonwealth or any prosecutor, but rather posed by unrelated, opposing counsel in a separate civil case. If the claimed error was not palpable in Moss, we are not convinced that the claimed error sub judice rises to palpable error in this case.
An unpreserved Moss violation is sometimes reviewed not as a trial court error but as a form of alleged prosecutorial misconduct as explained in Duncan v. Commonwealth, 322 S.W.3d 81, 87 (Ky. 2010),"prosecutorial misconduct can assume many forms, including improper questioning . . . .Where there was no objection, we will reverse only where the misconduct was flagrant and was such as to render the trial fundamentally unfair."
Here, not only was there no objection and no flagrant misconduct, the "conduct" was not that of the prosecutor, but of a different attorney engaged in discovery in a civil case. Therefore, the circumstances are more equivalent to those in Lanham v. Commonwealth, 171 S.W.3d 14 (Ky. 2005), in which the Supreme Court held that Moss did not extend to recordings of investigative interrogations where such questions "are a legitimate, even ordinary, interrogation technique [and that] retaining such comments in the version of the interrogation recording played for the jury is necessary to provide a context for the answers . . . ." Lanham, 171 S.W.3d at 27.
Below, the jury was presented other evidence on which to convict Grider, namely, the videotape of the narcotics transaction and the testimony of Wilson identifying Grider in said videotape. Given that this is a palpable error review, we believe that there simply was not a substantial possibility that the result in the case would have been different without the error in admitting the un-redacted video deposition which contained a single statement questioning the veracity of a witness. Accordingly, we decline to reverse on this ground.
We now turn to the remaining two arguments. First, we believe that Grider's argument that the court erred when it denied Grider's motion for a continuance due to defense counsel's illness was not an abuse of discretion. RCr 9.04 provides that "[t]he court, upon motion and sufficient cause shown by either party, may grant a postponement of the hearing or trial." A trial court's decision to grant or deny a motion for a continuance under RCr 9.04 is reviewed for an abuse of discretion. Fredline v. Commonwealth, 241 S.W.3d 793, 796 (Ky. 2007).
This Court has recognized a number of factors to be considered by the trial court in making this determination: " 'length of delay; previous continuances; inconvenience to litigants, witnesses, counsel and the court; whether the delay is purposeful or is caused by the accused; ... complexity of the case; and whether denying the continuance will lead to identifiable prejudice.' " Edmunds v. Commonwealth, 189 S.W.3d 558, 564 (Ky. 2006) (quoting Snodgrass v. Commonwealth, 814 S.W.2d 579, 581 (Ky. 1991), and discussing RCr 9.04). Sub judice, we believe that the court properly exercised its discretion in overruling Grider's motion for a continuance. Accordingly, we decline to reverse on this ground.
Last, we believe that the admonition given the jury cured the testimony of Chief Irvin referencing other criminal investigations involving Grider and, thus, the court did not err in denying his motion for a mistrial.
Whether or not to grant a mistrial is within the sound discretion of the trial court, and the trial court's ruling will not be disturbed unless its ruling constitutes an abuse of discretion. Woodard v. Commonwealth, 147 S.W.3d 63 (Ky. 2004). Moreover, a mistrial is an extreme remedy and should be utilized only when there appears in the record a manifest necessity for such action. Clay v. Commonwealth., 867 S.W.2d 200 (Ky. App. 1993). The error 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 [except by granting a mistrial]." Gould v. Charlton Co., Inc., 929 S.W.2d 734, 738 (Ky. 1996).
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 effect could be removed in no other way. Stated differently, the court must find a manifest, urgent, or real necessity for a mistrial. The trial court has broad discretion in determining when such a necessity exists because the trial judge is "best situated intelligently to make such a decision." Ultimately, the trial court's decision to deny a motion for a mistrial should not be disturbed absent an abuse of discretion. See Matthews v. Commonwealth, 163 S.W.3d 11, 17 (Ky. 2005) (internal citations omitted).
Indeed, an admonition is insufficient only when one of the following conditions exists: (1) there is an overwhelming probability that the jury will not follow the admonition and the introduced evidence will be devastating to the defendant, or (2) the question had no factual basis and was inflammatory or highly prejudicial. Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003).
We believe that sub judice the error created by the admission of Chief Irvin's testimony was cured by the admonition given the jury. Accordingly, the court did not err in denying the motion for a mistrial.
In light of the aforementioned, we affirm.
ALL CONCUR. BRIEFS AND ORAL ARGUMENTS
FOR APPELLANT:
J. Vincent Aprile, II
Louisville, Kentucky
BRIEF AND ORAL ARGUMENTS
FOR APPELLEE:
Jack Conway
Attorney General of Kentucky
Jeanne Anderson
Assistant Attorney General
Frankfort, Kentucky