Opinion
NO. 2015-CA-001724-MR
01-13-2017
MARILYN HANSFORD, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF LORA OPAL STEPHENS; ROGER STEPHENS; CAROL CREEKMORE; BRENDA MARTIN; MARCUS STEPHENS; R.L. STEPHENS, JR.; DEBBIE DIXON; JOE STEPHENS; AND JIMMY STEPHENS APPELLANTS v. JAMES MICHAEL STEPHENS APPELLEE
BRIEFS FOR APPELLANT: Jessica A. Burke Whitley City, Kentucky BRIEF FOR APPELLEE: Andrew K. Long Whitley City, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MCCREARY CIRCUIT COURT
HONORABLE PAUL K. WINCHESTER, JUDGE
ACTION NO. 13-CI-00237 OPINION
AFFIRMING
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BEFORE: DIXON, NICKELL, AND VANMETER, JUDGES. VANMETER, JUDGE: This appeal is of a judgment following a trial in which the jury found that a purported will was not the will of the decedent, Lora Opal Stephens. We must decide whether the McCreary Circuit Court erred in making a number of procedural and evidentiary rulings, such that the jury verdict and resulting judgment should be reversed. We hold that the trial court did not err and therefore affirm its judgment.
Judge Laurence B. VanMeter authored this opinion prior to being elected to the Supreme Court of Kentucky. Release of this opinion was delayed by administrative handling.
I. Factual and Procedural Background.
Following Lora Opal Stephens' death in September 2013, the McCreary District Court, on October 13, 2013, admitted the decedent's purported will dated April 23, 2013, to probate and appointed the decedent's daughter, Marilyn Hansford, as executrix. The probated will identified the decedent's seven children, including Hansford, James Michael Stephens ("Stephens"), and the decedent's grandchildren who are the children of her deceased son, R. L. Stephens. The probated will left all the decedent's property to her children in equal shares and stated that her deceased son's children should receive his share.
Stephens filed this action the following month against Hansford, individually and as executrix, and the other beneficiaries, seeking to set aside the probated will on the basis of lack of testamentary capacity, undue influence/duress, or fraud, as well as a number of other counts which are not pertinent to this appeal. Stephens claimed the decedent had executed a holographic will on July 24, 2009, by which she left the bulk of her estate to Stephens.
The decedent's children, Marilyn Hansford, individually and as Executrix, Roger Stephens, Carol Creekmore, Brenda Martin, and Marcus Stephens, as well as R. L. Stephens, Jr., Debbie Dixon, Joe Stephens, and Jimmy Stephens (the children of the decedent's deceased child, R. L. Stephens) were the defendants in the trial court and are the appellants in this court. We refer to the appellants collectively as "Hansford."
Following a trial held in August 2015, the jury returned a verdict that the probated will was not the will of the decedent. The trial court entered a Judgment upon Jury Trial in October 2015 in conformity with the jury's verdict adjudging that the document dated April 23, 2013, was not the will of the decedent, and dismissing all of the parties' other claims and counterclaims. This appeal follows; other facts shall be presented as discussed and addressed below.
II. Issues on Appeal.
On appeal, Hansford raises five issues: (1) the trial court erred in holding a jury trial despite the lack of a jury trial demand; (2) the trial court erred in admitting a voice recording into evidence; (3) the trial court erred in admitting the testimony of Gidget Slaven; (4) the jury verdict should be reversed due to juror misconduct; and (5) the trial court erred in permitting introduction of irrelevant testimony. We discuss each of these issues in turn.
A. Lack of Jury Demand. Hansford argues that the trial court erred in submitting this case to a jury despite the lack of a jury demand by either Stephens or Hansford. We disagree.
As an initial matter, Hansford has failed to state "with reference to the record showing whether the issue was properly preserved for review[.]" CR 76.12(4)(c)(v). In Ray v. Ashland Oil, Inc., 389 S.W.3d 140, 146 (Ky. App. 2012), we noted that we will entertain an argument not presented to the trial court only to avert a manifest injustice. In her reply brief, Hansford attempts to rectify this deficiency by reference to her June 5, 2014, motion to change venue to Whitley County. That motion, however, was designated Motion to Hold Jury Trial in Whitley County, and cannot by any stretch be read as an objection to a jury trial being held at all, only to a fear that McCreary County was not the proper place to hold that jury trial.
Kentucky Rules of Civil Procedure.
The record contains no explicit order denying Hansford's change of venue motion, and Hansford does not raise improper venue as an issue on this appeal.
Without unduly lengthening this opinion, we merely note that CR 39.03 states:
In all actions not triable of right by a jury the court upon motion or of its own initiative may try any issue with an advisory jury; or the court, with the consent of all parties noted of record, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right.(Emphasis added). In other words, while the parties in this case, by failing to demand a jury trial, may have waived that right, the trial court was certainly permitted to empanel a jury to try the issues, and the parties, by failing to object, are deemed to have consented. Williams v. Whitaker, 293 S.W.2d 627, 627-28 (Ky. 1956). Far from failing to object, however, Hansford, through counsel at a pretrial hearing held May 14, 2014, agreed to a jury resolution of the will contest issues.
B. Admission of Audio Recording. Hansford next complains of the admission of an audio recording of a telephone conversation between the decedent, Stephens and Marilyn Hansford which occurred on August 14, 2013. Specifically, Hansford objects that the recording was not properly authenticated, the original was not produced, and that the evidence contained in the recording was unduly cumulative and prejudicial.
The record reflects that the recording was played for the jury from Stephens' attorney's laptop computer. Stephens testified that he called his mother on August 14, 2013, spoke with her and Marilyn, and that he recorded the conversation on his cellular telephone.
Rulings on the admissibility of evidence are within the discretion of the trial court, and shall not be reversed absent clear abuse of discretion. Simpson v. Commonwealth, 889 S.W.2d 781, 783 (Ky. 1994); see also CR 61.01 (stating "[n]o error in either the admission or the exclusion of evidence . . . is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice[]"); KRE 103 (stating "[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected[]"). On appeal, we review evidentiary rulings under an abuse of discretion standard. Ten Broeck DuPont, Inc. v. Brooks, 283 S.W.3d 705, 725 (Ky. 2009). Abuse of discretion occurs when a trial court's decision is "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Baptist Healthcare Sys., Inc. v. Miller, 177 S.W.3d 676, 684 (Ky. 2005) (footnote omitted).
Kentucky Rules of Evidence.
1. Lack of Authentication. Hansford argues that the recording was not authenticated. We disagree.
Under KRE 901(a), "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." KRE 901(b) contains a number of illustrations to demonstrate authentication or identification with the meaning of the rule. The following provisions are pertinent to this case:
(5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.
(6) Telephone conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular place . . . if:
KRE 901(b). Professor Lawson has written that KRE 901(b)(5) codifies the rule that telephone conversation may be authenticated by a witness's testimony that he or she "knew and recognized the voices of participants in [the] conversation." Robert G. Lawson, The Kentucky Evidence Law Handbook, § 7.10[1][b] (5th ed. 2013). In this case, Stephens testified that he called his mother on August 14, 2013, spoke with her and Marilyn, that he recorded the conversation, and that the recording accurately reflected the conversation as he remembered it. This testimony was sufficient to authenticate the recording under KRE 901. See Brock v. Commonwealth, 947 S.W.2d 24, 30 (Ky. 1997) (holding that KRE 901(a) "requires for authentication only that evidence be introduced sufficient to support a finding that the matter in question is what its proponent claims[]").(A) In the case of a person, circumstances, including self-identification, show the person answering to be the one called[.]
2. Original of Recording. Next, Hansford argues the copy of the recording that was produced by Stephens' counsel playing the recording from his laptop renders the recording inadmissible because the original form of the recording, presumably from Stephens' cell phone, was not introduced.
KRE 1002 states that to prove the contents of a recording, the original of the recording "is required, except as otherwise provided in these rules[.]" The immediately following rule provides such an exception. "A duplicate is admissible to the same extent as an original unless: (1) [a] genuine question is raised as to the authenticity of the original; or (2) [i]n the circumstances it would be unfair to admit the duplicate in lieu of the original." KRE 1003. A duplicate is defined as "a counterpart produced by the same impression as the original . . . or by mechanical or electronic rerecording, . . . or by other equivalent technique which accurately reproduces the original." KRE 1001(4).
Our review of the record establishes that the telephone rerecording was properly introduced into evidence. Hansford makes no credible argument as to the authenticity of the original recording, or to Stephens' testimony as to the circumstances surrounding the call or his recording of it.
3. Unduly Cumulative/Prejudicial. Finally, as to the August 14, 2013 telephone recording, Hansford argues that the trial court should have excluded it pursuant to KRE 403. This rule provides that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Evidentiary rulings by the trial court balancing probative value against undue prejudice or presentation of cumulative evidence are subject to an abuse of discretion standard of review. Staples v. Commonwealth, 454 S.W.3d 803, 825 (Ky. 2014).
Hansford's argument is that the decedent admittedly suffered from occurrences of dementia, but that the August 14, 2013, recording has no bearing on the decedent's state of mind on April 23, 2013 when she signed the will at issue. As noted by Stephens, however, the timing of the recording was relevant to discredit the testimony of the attorney who prepared the decedent's will and her power of attorney in favor of Marilyn, which power of attorney was executed the day after the telephone call. The attorney testified as to the decedent's lucidity on that date. Based on our review of the record, we are unable to say that the trial court abused its discretion under KRE 403 in admitting the recording into evidence.
C. Gidget Slaven's Testimony. Slavens testified on Stephens' behalf that in October 2010, some two and one-half years prior to the execution of the April 2013 will, she had a conversation with Marilyn while looking at an apartment for rent. During the conversation, they kept hearing a car horn blow. According to Slavens, Marilyn stated, in substance, that it was just her mom, she had Alzheimer's, and she probably just had to go to the bathroom. On appeal, Hansford argues that this testimony should have been excluded under KRE 403.
We note that in the trial court Hansford argued that the testimony should have been excluded as hearsay. Hansford omits this argument on appeal, and the statement appears clearly admissible under KRE 801A(b)(1) as a party's prior statement. Thus, we find that this issue, whether Slaven's statement should have been excluded under KRE 403, is not properly preserved for review since the trial court was not given an opportunity to rule on the now proffered basis for review. See Reg'l Jail Auth. v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989) (holding that the Court of Appeals is "without authority to review issues not raised in or decided by the trial court[]").
D. Juror Misconduct. Hansford makes two claims regarding juror misconduct. First, that one juror slept through almost the entirety of the two-day trial. Second, two jurors had undisclosed relationships with Stephens which they failed to disclose during jury selection.
As to the sleeping juror, Hansford does not identify the juror but states that he was actively sleeping, that his inattentiveness was discussed among counsel and the trial court, but that no action was taken. We recognize that in Ratliff v. Commonwealth, 194 S.W.3d 258, 276 (Ky. 2006), the Court noted that "[a] juror's inattentiveness is a form of juror misconduct, which may prejudice the defendant and require the granting of a new trial." (citation and quotation omitted). The Court, however, also noted that "'[a]llegations of jury misconduct, incompetency, or inattentiveness, raised for the first time days, weeks, or months after the verdict, seriously disrupt the finality of the process.'" Id. (quoting Tanner v. United States, 483 U.S. 107, 120-21, 107 S.Ct. 2739, 2747-48, 97 L.Ed.2d 90 (1987)). Hansford fails to allege that she objected to the sleeping juror (other than engage in a general discussion), asked for corrective action, or moved for a mistrial. We hold that Hansford waived any complaint against juror misconduct based on the sleeping juror in this instance. See Shrout v. Commonwealth, 226 Ky. 660, 662, 11 S.W.2d 726, 727 (1928) (holding that "[t]he appellant could not sit by and see the juror sleeping, without asking the court to arouse him from his slumbers, and then complain about it after the trial was over[]").
As to juror bias, Hansford identifies one juror who, following the trial, stated a pre-existing acquaintance with and bias in favor of Stephens, and another unidentified juror who "appears to work with [Stephens'] sister-in-law." Appellants' Brief at 20. Hansford argues that the failure to disclose these relationships constitutes misconduct sufficient to warrant a new trial.
We agree that Kentucky decisions support the proposition that "no vestige of suspicion of improper conduct by jurors be tolerated." Leslie v. Egerton, 445 S.W.2d 116, 118 (Ky. 1969). The misconduct, however, must be specifically identified as to juror name, description of the misconduct, including date, time, to whom disclosed or by whom observed, and supported by affidavit. See id. (holding that affidavit "that some unknown person claimed to have overheard an unknown juror's statement" discussing the case during a lunch break was not sufficiently specific to present a justiciable issue as to juror misconduct); Dalby v. Cook, 434 S.W.2d 35, 37-38 (Ky. 1968) (juror misconduct established on motion for new trial by affidavits establishing on afternoon of last day of trial, attorney's secretary discussed the facts of the case with identified juror).
In this case, Hansford filed no affidavits with the trial court and made no motion for a new trial. Juror misconduct is listed as a grounds for new trial under CR 59.01(b). Of course, a motion for a new trial must be filed within ten days of the entry of the judgment. CR 59.02. From the record, Hansford did not file a motion for new trial following the entry of the judgment on October 12, 2015. The voir dire for the trial was held on August 6, 2015. Hansford had over two months to discover the juror misconduct prior to the entry of the judgment, and yet took no action before the trial court. The allegations as made are insufficient to warrant the granting of a new trial.
Even had Hansford only discovered the juror misconduct after the time for filing a motion for a new trial had closed under CR 59, CR 60.02(b) and 60.04 would have provided the means to pursue relief in the trial court. CR 60.02(b) affords a litigant the opportunity to move the trial court for relief from a judgment based on "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59.02[.]" CR 60.04 sets forth the procedure to follow if a party files a CR 60.02 motion during the pendency of an appeal. --------
E. Irrelevant Testimony. Finally, Hansford complains that the trial court, over objection, permitted Stephens to testify as to a number of matters irrelevant to the issue of decedent's will, and that the length of Stephens' case compromised Hansford's ability to present her case in the remaining time allotted for the trial. Hansford fails to identify where in the record the objection was made so to preserve it for our review. CR 76.12(4)(c)(v); see Dixon v. Commonwealth, 263 S.W.3d 583 (Ky. 2008) (stating that reply brief reference to two hours of testimony was insufficiently specific under the rule). We therefore decline to address this issue.
III. Conclusion.
Based on the foregoing, the McCreary Circuit Court's judgment is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Jessica A. Burke
Whitley City, Kentucky BRIEF FOR APPELLEE: Andrew K. Long
Whitley City, Kentucky