Opinion
NO. 2016-CA-000294-MR
06-15-2018
CHAD M. LUDWICK APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Paul J. Dickman Covington, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Emily Bedelle Lucas Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KENTON CIRCUIT COURT
HONORABLE GREGORY M. BARTLETT, JUDGE
ACTION NO. 15-CR-00374 OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, JONES, AND KRAMER, JUDGES. ACREE, JUDGE: Chad Ludwick appeals from the Kenton Circuit Court's February 27, 2016 final judgment sentencing him to ten years' imprisonment after a jury found him guilty of numerous crimes. We affirm.
FACTS AND PROCEDURE
Between August 2014 and March 2015, Ludwick, on three separate occasions, approached three different prostitutes while impersonating a police officer. He accomplished this by showing them a badge, presenting handcuffs, pretending to hold telephone conversations with other police officers, showing them his police memorial license plate, and stating he was in law enforcement. Ludwick then used this false authority to force the female victims to engage in sex acts with him in his vehicle or allegedly risk going to jail.
On March 17, 2015, the third victim in the sequence, Alice, called the Covington Police Department and asked to speak to a police officer. Detective Jeff Hamlin responded. Alice informed Detective Hamlin that a few days earlier she had been working as a prostitute in Covington when the driver of a black SUV waved her over to his car. Alice entered the car and began negotiating the price for her services. The driver, whom Alice later identified as Ludwick, told Alice he was a police officer, showed her a badge, and pretended to talk into his cell phone with other officers. Ludwick then locked the car doors and directed Alice to perform oral sex; Alice complied. Ludwick did not give her any money.
We here use three pseudonyms in place of the real names of the three victims.
Shortly after meeting with Alice, Detective Hamlin encountered the second victim, Betty, at the courthouse in Kenton County. Betty described a similar incident that occurred in late February or early March 2015. A man she later identified as Ludwick informed Betty he was an undercover police officer and would have her criminal record expunged if she had sexual intercourse with him; he pretended to make a phone call requesting that his sergeant expunge Betty's record. Ludwick then undressed Betty and forced her to have vaginal intercourse with him in his black SUV.
The Covington Police Department began a formal investigation headed by Detective Corey Warner. The investigation led officers to the first victim, Carol, whose story was consistent with the others. Carol testified that, in the fall of 2014, while working as a prostitute in Covington, she approached Ludwick's black SUV. After she entered his vehicle, Ludwick declared he was a member of the Cincinnati Police Department drug task force and flashed her a badge. In lieu of not arresting Carol, Ludwick forced her to perform oral sex followed by vaginal intercourse.
Detective Warner interviewed the victims separately. All three victims described the assailant's vehicle as a black SUV. Carol told Detective Warner that the SUV had a police memorial specialty license plate on the back of his vehicle. Betty and Alice each described the SUV's front license plate as black with a thin blue horizontal line. All three victims described the assailant as an African-American male with distinct eyes. Carol and Betty stated he had unusual blue eyes, and Alice described his eyes as light hazel. Alice also informed Detective Warner that the assailant had been wearing a black hooded sweatshirt with an insignia on the front and the word "Afghanistan" on the back.
Detective Warner first turned his attention toward a suspect named Brent Willoughby who had recently been arrested for impersonating a police officer. Willoughby's picture was posted online. Carol saw the picture and informed officers that he was not the person who had assaulted her. Upon further investigation, Detective Warner discovered Willoughby did not match the victims' physical descriptions of their assailant. Willoughby was younger, taller, and thinner than the man described. There was also nothing exceptional or distinct about Willoughby's eyes. Furthermore, Alice had identified the black SUV as a Lincoln Navigator with the distinct license plates previously described; Willoughby drove a black Cadillac SUV with a National Guard license plate.
Detective Hamlin began conducting surveillance. He observed a black Lincoln Aviator (a smaller version of the Lincoln Navigator) with the described front and back license plates driving in Covington's "prostitution triangle." The detective followed the SUV, which went to a second prostitution area in Covington and then to a nearby house. The house belonged to Ludwick.
Detective James Muscannon of the Covington Police Department learned of the victims' descriptions of their assailant and notified Detective Warner that he was familiar with a person who had distinctive, light hazel eyes and drove a black Lincoln Aviator SUV with a front license plate that was black with a thin blue line. That person was Ludwick.
Detective Warner obtained Ludwick's driver's license photograph. In the photograph Ludwick had blue eyes and was wearing a collared camouflage shirt. The detective proceeded to assemble a photograph line-up to present to the victims. He searched a national database for black males matching Ludwick's physical characteristics with blue eyes. Unable to find any photographs of black males with blue eyes, he obtained five photographs of black males wearing white shirts with similar builds and facial characteristics, and then altered all the photos to black and white, rather than color, to promote uniformity among the pictures.
The photographs were presented to the victims on three separate dates by three separate police officers who were not involved in the investigation. Each victim unhesitatingly identified Ludwick as her assailant.
On April 7, 2015, Detective John Mairose, accompanied by Detectives Warner and Hamlin, executed a search warrant on Ludwick's home. The officers discovered a duty belt with a handcuff case, a baton holder, a badge holder with a military police badge, a collapsible baton, a holster, black gloves, and a gun. Detective Warner asked Ludwick's wife if Ludwick wore contacts; she gave officers two boxes of tinted contact lenses - one was sapphire blue and the other light hazel. Officers also recovered a black hooded sweatshirt with a badge emblem on the front and the word "Afghanistan" on the back. The next day Detective Warner searched Ludwick's car, a black Lincoln Aviator SUV with a police memorial license plate on the back and a black license plate with a thin blue line on the front.
Ludwick was arrested and charged with three counts of first-degree sexual abuse, three counts of impersonating a police officer, and three counts of second-degree unlawful imprisonment. The circuit court conducted a jury trial on December 15-17, 2015. The jury found Ludwick guilty on all counts. The circuit court sentenced Ludwick to ten years' imprisonment. From this judgment, Ludwick appeals. Additional facts will be discussed in the course of our analysis.
The circuit court sentenced Ludwick to three years' imprisonment on each count of first-degree sexual abuse, to be served consecutively; one year imprisonment on each count of impersonating a police officer, to be served concurrently with each other, but consecutively to all other sentences imposed; and twelve months' imprisonment for each count of second-degree unlawful imprisonment, to be served concurrently with each other and concurrently with all other sentences imposed, for a total sentence of ten years' imprisonment.
ANALYSIS
Ludwick claims six errors occurred during the course of his criminal trial, each of which deprived him of a fair trial and requires his convictions be set aside. He argues the circuit court erred by: (1) improperly allowing the Commonwealth to use a peremptory challenge to remove the sole African-American member of the jury pool; (2) improperly admitting evidence of his prior bad acts; (3) allowing the Commonwealth to present evidence as to the victims' out-of-court identifications of Ludwick; (4) allowing improper bolstering and cumulative evidence as to Carol's out-of-court identification of Ludwick; (5) allowing testimony that a gun was found at Ludwick's home; and (6) refusing to grant a mistrial following the violation of the witness separation rule. A. No Batson Violation Occurred
Following voir dire, the Commonwealth used a preemptory strike to remove the sole African-American juror from the jury pool. Ludwick objected to the strike as racially-biased, a violation of Batson v. Kentucky, 476 U.S. 79, 86, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The Commonwealth stated it had stricken this juror because he had been convicted of domestic violence. It pointed out that it had also stricken a white woman similarly convicted of domestic violence. Ludwick challenged the Commonwealth's reason, claiming a third juror - juror 14 - also had a criminal history and was not struck. The Commonwealth corrected Ludwick, explaining that it was the husband of juror 14 who had a criminal record, and the only members of the jury pool who themselves had a criminal record were the aforementioned jurors, both of whom were stricken. The circuit court found that the Commonwealth had acted with racially-neutral motives for dismissing the African-American juror and denied Ludwick's Batson challenge.
On appeal, Ludwick argues the circuit court erred when it failed to find the Commonwealth's proffered reason for striking the juror illegitimate and pre-textual. We are not persuaded.
The Equal Protection Clause of the United States Constitution prohibits a prosecutor from excluding jurors because of their race. Id. In Batson, supra, the United States Supreme Court outlined a three-step process for evaluating claims that a prosecutor used peremptory challenges in a manner violating the Equal Protection Clause.
First, the defendant must make a prima facie showing that the Commonwealth has exercised a peremptory challenge on the basis of race. Roe v. Commonwealth, 493 S.W.3d 814, 826 (Ky. 2015). Second, if the required showing has been made, the Commonwealth must articulate a race-neutral justification for striking the juror in question. Id. Third, the circuit court must determine if the defendant has established purposeful discrimination. Id. We will not disturb the circuit court's ruling on a Batson challenge unless it is clearly erroneous. Mash v. Commonwealth, 376 S.W.3d 548, 555 (Ky. 2012).
Ludwick satisfied step one of the Batson test. The Commonwealth struck the sole African-American member of the jury panel. This is sufficient to raise "an inference of racial discrimination in exercising a challenge to remove a juror from the venire . . . ." Roe, 493 S.W.3d at 828.
The burden then shifted to the Commonwealth to provide a race-neutral explanation for its peremptory exclusion of a juror of a protected class. Id. at 827. "This step sets a fairly low bar for the Commonwealth to meet." Mash, 376 S.W.3d at 555. "Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race-neutral." Roe, 493 S.W.3d at 827 (quoting Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991)). The Commonwealth offered a facially-valid, race-neutral reason for striking the African-American juror - the juror's domestic violence conviction. The Commonwealth satisfied its burden.
At the third step of Batson, the burden shifts back to the defendant to show "purposeful discrimination." Mash, 376 S.W.3d at 555 (quoting Hernandez, 500 U.S. at 359, 111 S.Ct. at 1866). This step requires the circuit court to determine if the Commonwealth's race-neutral explanation was actually a pretext for purposeful racial discrimination. Id. at 556. This is where "the persuasiveness of the justification becomes relevant . . . ." Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995). "Although a prosecutor theoretically could fabricate a demeanor-based pretext for a racially-motivated peremptory strike, the third step in Batson alleviates this concern by permitting the court to determine whether it believes the prosecutor's reasons." Thomas v. Commonwealth, 153 S.W.3d 772, 778 (Ky. 2004). We allow significant deference to the circuit court's assessment and hesitate to interfere except in exceptional circumstances. Mash, 376 S.W.3d at 556.
Ludwick argues the circuit court's acceptance of the Commonwealth's explanation was unsupported and unreasonable. He notes that the Commonwealth dismissed the African-American juror because of his prior domestic violence conviction but did not dismiss another juror whose husband also had a criminal history. "Why dismiss one person, but not the other?" Ludwick questions.
Although the evidence of record indicates nothing more than that the juror's husband had a criminal history, Ludwick's brief repeatedly identifies that criminal conduct as domestic violence.
Ludwick's argument is based on a false premise - that there is no difference between a person convicted of a crime and a woman married to a man convicted of a crime. The contrast becomes even more stark if, as Ludwick argues, the husband's crime was domestic violence. Then, the contrast is between the perpetrator and the victim. Either way, there is no equivalency here. The argument fails.
We find no error in the circuit court's failure to find a pretext contrived to conceal racial bias. On this issue, we affirm. B. Prior Bad Acts Evidence Was Admissible
Ludwick's second argument is that evidence of his prior bad acts should have been excluded. Before trial, the Commonwealth gave notice that it intended to introduce, under KRE 404(b), witness testimony that Ludwick had impersonated a police officer in the past. Ludwick objected. The circuit court ruled, by order entered December 22, 2015, that the Commonwealth could offer testimony that Ludwick, on prior occasions, represented that he was an Erlanger Police Officer and/or a Kentucky State Police Officer when in fact he was not, to show plan, identity, and/or modus operandi. (R. 62).
Kentucky Rules of Evidence.
At trial, the Commonwealth presented testimony from Detective Tyler Smith of the Lexington Police Department. Smith testified that Ludwick had once represented that he was an Erlanger police officer when he was not. The Commonwealth also called Greg Lee, who testified that he was in the same military police unit as Ludwick for approximately eight years. During that time, Ludwick told Lee that he was a patrol officer for the Campbell County Sheriff's Department when, again, he was not.
Ludwick first takes issue with Lee's testimony as exceeding the scope of the court's KRE 404(b) ruling. He contends Lee was only permitted to testify that Ludwick had impersonated an Erlanger or Kentucky State Police officer, not an officer with the Campbell County's Sheriff's office. While Ludwick certainly objected pre-trial to the admission of any such evidence, he did not object at trial to Lee's specific testimony as violative of the circuit court's prior order. Ludwick waived any error occasioned by Lee's testimony to this extent.
Ludwick also argues that the testimony from Smith and Lee violated KRE 404(b) itself and, therefore, his conviction must be reversed. We disagree.
Because "the trial court's unique role as a gatekeeper of evidence requires on-the-spot rulings on the admissibility of evidence, [this Court] may reverse a trial court's decision to admit evidence only if that decision represents an abuse of discretion." Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007). The test for abuse of discretion is whether the trial judge's decision "was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
"[E]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." KRE 404(b). However, this rule does not prohibit such evidence "[i]f offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; or . . . [i]f so inextricably intertwined with other evidence essential to the case that separation of the two (2) could not be accomplished without serious adverse effect on the offering party." Id. Importantly, the "other purposes" listed under KRE 404(b)(1) "are illustrative rather than exhaustive." Tamme v. Commonwealth, 973 S.W.2d 13, 29 (Ky. 1998) (quoting R. Lawson, The Kentucky Evidence Law Handbook, § 2.25, at 87 (3d ed. Michie 1993)).
In Bell v. Commonwealth, 875 S.W.2d 882 (Ky. 1994), our Supreme Court established a three-part test to gauge the admissibility of evidence pursuant to KRE 404(b), namely: (1) relevance, (2) probativeness, and (3) prejudice. Id. at 888-91; see also Harp v. Commonwealth, 266 S.W.3d 813, 822 (Ky. 2008).
Under the first Bell prong, we ascertain whether the evidence presented "is relevant for some purpose other than to prove [the] criminal disposition of the accused." Robert G. Lawson, The Kentucky Evidence Law Handbook § 2.25[3][a][b], at 126 (4th ed. & 2010 Supp.). Evidence is relevant if it has any tendency to make a fact more or less likely than it would be without the evidence. KRE 401.
Ludwick argues testimony that he previously held himself out to be a police officer was irrelevant and in no way connected to the alleged crimes for which he was charged. He points out that KRS 519.055, the statute identifying the crime of impersonating a peace officer, provides: "A person is guilty of impersonating a peace officer if he pretends to be a peace officer, or to represent a law enforcement agency or act with the authority or approval of law enforcement agency, with intent to induce another to submit to the pretended official authority or otherwise to act in reliance upon the pretense to his prejudice." (emphasis added). Ludwick argues that Lee and Smith both testified that Ludwick gained nothing at all from his prior misrepresentations, there was no connection whatsoever to any alleged sexual favors, and there was no intent to induce anyone to submit to anything. Ludwick fails to recognize that "evidence which is probative of an element of the crime charged" is also relevant and admissible. Sanders v. Commonwealth, 801 S.W.2d 665, 674 (Ky. 1990) (emphasis added). Whether Ludwick pretended to be or represented himself as a police officer is an element of the crime of impersonating a peace officer. KRS 519.055. Lee's and Smith's testimony was relevant as to that element.
Kentucky Revised Statutes.
This testimony was also relevant to establish Ludwick's identity. Ludwick's defense theory was that this was a case of mistaken identity. He argued at trial that the real perpetrator was Willoughby, who was also African-American, drove a black SUV, and had recently been arrested for impersonating a peace officer. Whether Ludwick had a habit of holding himself out as a police officer tended to assist the jury in determining that, while perhaps Willoughby engaged in the same conduct, Ludwick did likewise. The first Bell factor is satisfied.
Evidence of a prior bad act must also be probative of the commission of the uncharged offense to be admissible. Billings v. Commonwealth, 843 S.W.2d 890, 893 (Ky. 1992). This test has been met if the evidence is such that "the jury could reasonably infer that the prior bad acts occurred and [the defendant] committed such acts." Parker v. Commonwealth, 952 S.W.2d 209, 214 (Ky. 1997). Here, two witnesses testified that Ludwick personally told them he was a police officer when, in fact, he was not. The evidence was probative. The second Bell factor is satisfied.
Finally, "[e]ven if other crimes evidence is determined to be relevant for a proper purpose and is sufficiently probative . . . it may still be excluded on this third ground[, prejudice]." Bell, 875 S.W.2d at 890. Bell instructs us to consider KRE 403 and ask: "Does the potential for prejudice from the use of [this] evidence substantially outweigh its probative value?" Id. KRE 403 does not bar all prejudicial evidence; only evidence that is unfairly prejudicial is excludable. Price v. Commonwealth, 31 S.W.3d 885, 888 (Ky. 2000) (explaining "the real issue is whether [Appellant] was unduly prejudiced, i.e., whether the prejudice to him was unnecessary and unreasonable"); Meece v. Commonwealth, 348 S.W.3d 627, 663 (Ky. 2011) ("This evidence, of course, was prejudicial to [the defendant] but it was not unfairly prejudicial."). Whether the undue prejudice outweighs the probative value of KRE 404(b) evidence is a matter entrusted to the circuit court's sound discretion. English, 993 S.W.2d at 945. We cannot say from our review that the circuit court abused its considerable discretion in this case.
Lee's and Smith's testimony was relatively inconsequential in light of the other substantial evidence presented by the Commonwealth. All three victims described an African-American man with distinct blue or hazel eyes; blue-tinted and hazel-tinted contacts were found at Ludwick's residence. All three victims described the assailant's vehicle as a black SUV with certain distinctive license plates on the front and back. Ludwick drove a black SUV with the exact license plates described. All three victims stated the assailant declared he was a police officer in some capacity. An abundance of police paraphernalia, including handcuffs, a badge, a badge holder, a baton, and a gun, were found at Ludwick's residence. One victim described the assailant as wearing a black hooded sweatshirt with an insignia on the front and the word "Afghanistan" on the back; a black hooded sweatshirt matching that description was found at Ludwick's residence.
While Lee's and Smith's testimony was prejudicial - as is all evidence tending to disprove a defendant's rendition of the facts - we can hardly say it was unduly prejudicial, particularly in light of all the evidence presented at trial. The probative value of that testimony was not outweighed by undue prejudice. The third Bell factor is met.
In sum, we find the circuit court did not abuse its discretion in finding that Lee's and Smith's testimony was admissible. C. Assailant Identification
Ludwick next argues that the circuit court erred in allowing the Commonwealth to present evidence of the out-of-court identification by the victims. He claims the photo lineup presented to the victims was impermissibly suggestive and unreliable as there was at least one major variation beyond the minor physical features of the individuals pictured: all the photographs in the lineup depicted the individuals in white shirts while the photograph depicting Ludwick shows him in a camouflage military shirt. Therefore, Ludwick argues, the results of the photographic lineup violated his due process rights and should have been excluded. Again, we are unpersuaded.
"Suggestive identifications deprive defendants of due process because they increase the likelihood of misidentification." Grady v. Commonwealth, 325 S.W.3d 333, 352 (Ky. 2010) (citing Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)). "And ultimately, the admissibility of identification testimony spins on its reliability." Id. (citing Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)).
Our Supreme Court has established a two-step process for determining whether identification testimony violates a defendant's due process rights. "First, the court examines the pre-identification encounters to determine whether they were unduly suggestive." King v. Commonwealth, 142 S.W.3d 645, 649 (Ky. 2004) (citation omitted). If not, the analysis ends and the identification testimony is permitted. Id. "If so, the identification may still be admissible if under the totality of the circumstances the identification was reliable even though the [identification] procedure was suggestive." Id. (internal quotation marks and citations omitted).
Ludwick filed a pre-trial motion seeking to suppress all out-of-court identifications of him by the victims. The circuit court denied his motion. It stated:
The three alleged victims of the Defendant's conduct have identified the Defendant as the perpetrator. The identification was obtained by way of a photo line-up. From the testimony produced at the hearing, this Court
finds that the sequential photo line-up for each of the three proposed witnesses was not unduly suggestive.(R. 61).
Upon careful review of the photo array, we can find no error by the circuit court in its decision. All the photographs used are of African-American males, all appear to be of the same general age as Ludwick with similar facial characteristics and shaved or closely cropped hair, and all are pictured in substantially similar surroundings. It is impossible to tell from the black and white photographs that Ludwick was wearing a camouflage shirt. Indeed, it simply appears that Ludwick's shirt has a slight amount of grey around the collar. Only a small section of Ludwick's collar is visible, as the frame is filled largely by his face. We cannot say the circuit court was clearly erroneous in its conclusion that the photographs used in the lineup were not unduly suggestive.
Ludwick also declares that the out-of-court identifications were tainted because Detective Warner admittedly altered Ludwick's photograph by coloring it black and white prior to it being placed in the photo lineup. But Detective Warner specifically testified he did so because he was unable to locate pictures of other African-American males with blue eyes. He darkened the backgrounds and converted all the photographs, including Ludwick's photo, to black and white to make the photographs more alike and less suggestive. This in no way tainted the identification process or deprived Ludwick of due process. D. Bolstering and Cumulative Evidence
Along the same lines as his prior argument, Ludwick claims the circuit court erred in allowing Detectives Andrews and Warner to testify that Carol had identified Ludwick from the photographic line up because Carol had already testified to that during her own testimony. Ludwick asserts the detectives' testimony in this regard amounted to improper bolstering and was merely cumulative. He points out that the needless presentation of cumulative evidence is prohibited under KRE 403.
Ludwick states in his brief that Sergeant Mears conducted the photographic lineup with Carol. He is mistaken. A review of the record reveals Sergeant Mears conducted the photographic lineup with Betty; Detective Andrews conducted the photographic lineup with Carol.
As previously touched upon, KRE 403 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." The circuit court has considerable discretion whether to exclude evidence pursuant to KRE 403. See Cunningham v. Commonwealth, 501 S.W.3d 414, 422 (Ky. 2016). We will not disturb the circuit court's decision absent an abuse of that discretion.
The "purpose of these delay and needless-presentation-of-cumulative-evidence 'considerations,' as [KRE 403] terms them, is 'to provide trial courts with the discretion that is needed to control tireless litigators and conduct trials efficiently.'" Daugherty v. Commonwealth, 467 S.W.3d 222, 234 (Ky. 2015) (internal quotation marks and citation omitted). Those considerations "are not aimed at protecting either side from prejudice or upholding fairness; rather, they 'are designed to conserve judicial resources.'" Id. (internal quotation marks and citation omitted). Circuit courts must proceed with special caution when excluding relevant evidence under KRE 403 based on the "needless presentation of cumulative evidence" ground. Id. (citation omitted)
Here, Carol testified at the beginning of trial. At the end of her testimony, she noted she had identified Ludwick in a photographic lineup. Little else was said by her related to the lineup.
Detective Andrews testified next. He described how the photographic lineup was conducted. He testified that he read Carol a set of instructions and then had her sign the instructions. The detective then showed each photograph to Carol individually and did not allow her to make an identification until she had seen them all. He concluded by saying Carol did not hesitate and appeared confident in her selection of Ludwick's photograph.
The instructions included several safeguards, including that a suspect might or might not be in the lineup and that she did not have to select a suspect.
Later, Detective Warner informed the jury about the process by which he assembled the photo lineup. He stated he took the assailant's physical characteristics as described by the victims and entered them into a national database to obtain five photographs of men resembling the assailant. He then adjusted the background color and made all the photographs black and white to ensure uniformity.
As explained by our Supreme Court:
We note that "[n]ot all evidence that is duplicative is therefore cumulative, and evidence should not be excluded on this ground merely because it overlaps with other evidence." Multiple witnesses bring multiple viewpoints and "testimony from multiple sources about the same event is likely to differ in ways that are helpful to the factfinder."Doneghy v. Commonwealth, 410 S.W.3d 95, 109 (Ky. 2013) (footnotes omitted). Here, Detective Warner explained the genesis of the lineup; Detective Andrews described its administration; and Carol confirmed her identification. Each witness's testimony offered a different perspective and was helpful to the jury. The circuit court properly exercised its discretion in not disallowing this evidence as bolstering or needlessly cumulative under KRE 403. E. Gun Testimony
Ludwick's next argument also turns on KRE 403. He asserts the circuit court erred in allowing Officer Mairose to testify that a gun was discovered at Ludwick's home. Ludwick claims this testimony should have been excluded by KRE 403 based on its inherent prejudicial nature, particularly in light of the fact that no victim testified that Ludwick had or brandished a gun during the commission of the crimes.
During Detective Warner's testimony, Ludwick again objected to any testimony about a gun being found at Ludwick's home. The circuit court expressed concern over the possible prejudicial effect of such testimony and offered to admonish the jury. The Commonwealth objected to an admonition, but stated it would ask Detective Warner at the end of his testimony to clarify that no gun was used in the crimes. This compromise appeared agreeable to Ludwick and the circuit court.
Before this Court, Ludwick first complains that no such question was ever asked of Detective Warner at the end of his testimony. He chastises the Commonwealth for failing to ask the question it had committed to and that was meant to limit the prejudicial effect of the gun testimony. But the record reflects the Commonwealth held up its end of the bargain. At the end of Detective Warner's testimony, the following exchange occurred:
Commonwealth: And just to be clear, so that we're clear with the jury, there was not a gun used on the victims in this case.(VR 12/16/2015, 11:33).
Detective Warner: None of the victims described a gun being used or said a gun was used.
Ludwick also claims the testimony offered by Detectives Mairose and Warner about the gun was entirely unnecessary in this case, unduly prejudicial, and wholly irrelevant. He asserts it should have been excluded under KRE 403. Once again, we are not persuaded.
As we previously said, relevant evidence may be excluded under KRE 403 if its probative value is substantially outweighed by the danger of undue prejudice. The fact that a gun was found at Ludwick's residence was certainly probative. Detective Warner testified that the gun, along with the other police equipment, gave credence to the accusation that Ludwick was impersonating a peace officer. It was also not unduly prejudicial. The Commonwealth made it perfectly clear that Ludwick did not use the guns on the victims or during the commission of the crimes. Indeed, it asked the jury in closing argument to simply consider the gun in context of all the other police equipment recovered from Ludwick's residence when considering the crime of impersonating a peace officer. We agree with the circuit court that any prejudice arising from this testimony was not substantially outweighed by its prejudicial value. We again affirm. F. Witness Separation
Finally, Ludwick argues the circuit court should have granted his request for a mistrial upon discovering that two of the Commonwealth's witnesses violated the separation of witnesses rule. That rule, KRE 615, provides in pertinent part that: "At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses and it may make the order on its own motion." The purpose of KRE 615 is "to exclude trial witnesses[] so that they cannot hear the testimony of other witnesses." McAbee v. Chapman, 504 S.W.3d 18, 24 (Ky. 2016) (citation omitted). This helps ensure "witnesses do not alter their own testimony based on what they hear from other witnesses[,]" Hatfield v. Commonwealth, 250 S.W.3d 590, 594 (Ky. 2008), and limits "fabrication, inaccuracy, and collusion." McAbee, 504 S.W.3d at 24 (citation omitted).
There is no question in this case that the parties invoked the rule at the beginning of trial.
Toward the end of trial, Ludwick informed the circuit court that his wife had overheard Detective Hamlin discussing the case with Officer Mairose in the hallway outside the courtroom. Ludwick promptly requested a mistrial. The circuit court conducted a brief hearing, at which Detective Hamlin testified that he did not speak with Officer Mairose about this case or his testimony. Detective Hamlin testified he spoke with Detective Muscannon about another case unrelated to the one before us. Officer Mairose was not available to testify.
Detective Muscannon also testified that, after both he and Detective Hamlin testified at trial, he spoke with Detective Hamlin about his testimony along with several other cases. Detective Muscannon said he also asked Officer Mairose why his testimony took so long. Again, this occurred after both officers had testified. In any event, Detective Muscannon's actions are not relevant to this inquiry, as Ludwick's wife claimed she heard Detective Hamlin and Officer Mairose talking, not Detective Muscannon. --------
The circuit court found, based on the evidence elicited during the hearing, that no violation of the separation of witnesses rule occurred and a mistrial was not warranted. We agree with its decision.
"A mistrial is an extreme remedy and should be resorted to only when there appears in the record a manifest necessity for such an action or an urgent or real necessity." Hammond v. Commonwealth, 504 S.W.3d 44, 51 (Ky. 2016) (citation omitted). "The decision to declare a mistrial is properly within the sound discretion of the trial court." Id.
Ludwick's wife claimed she overhead Detective Hamlin and Officer Mairose speaking about the case after Detective Hamlin had testified, but before Officer Mairose testified. The circuit court heard from Detective Hamlin, who denied the allegation. The circuit court found Detective Hamlin credible and believed his testimony. Based on that, the circuit court found no violation of the separation of witnesses rule. The circuit court did not abuse its discretion by denying Ludwick's motion for a mistrial.
CONCLUSION
We affirm the Kenton Circuit Court's February 27, 2016 final judgment.
ALL CONCUR. BRIEF FOR APPELLANT: Paul J. Dickman
Covington, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Emily Bedelle Lucas
Assistant Attorney General
Frankfort, Kentucky