Opinion
NO. 2015-CA-000737-MR
07-28-2017
MICHAEL PADGETT APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Emily Holt Rhorer Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Thomas A. Van De Rostyne Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM DAVIESS CIRCUIT COURT
HON. JOE CASTLEN, JUDGE
INDICTMENT NO. 14-CR-00306 OPINION
VACATING
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BEFORE: KRAMER, CHIEF JUDGE; ACREE AND JOHNSON, JUDGES. JOHNSON, JUDGE: Michael Padgett appeals from the Daviess Circuit Court's judgment and sentence following guilty verdict, entered April 29, 2015. Because the court granted a mistrial over Padgett's objection and without a showing of manifest necessity, we VACATE the conviction resulting from his retrial based upon the constitutional prohibition against double jeopardy.
BACKGROUND
The facts of this case stem from an incident on February 9, 2014, in which Padgett, an inmate of the Daviess County Detention Center, had covered the window of his cell with paper and began kicking his cell door, causing a disturbance. When deputy jailers ordered Padgett to take down the paper and to stop kicking the cell door, he refused to comply. Three deputies then entered the cell and handcuffed Padgett, with the goal of removing him from the cell and placing him in the emergency restraint chair ("ERC"). Deputies use the ERC to temporarily restrict an inmate's movements when the inmate may otherwise harm himself or others. Deputy Joseph Stone would later testify that Padgett attempted to kick him as he was removed from the cell. Padgett actively struggled against being placed in the ERC, despite commands to cease his actions, and uttered threats against the deputies. Padgett also spat in the face of Deputy Chad Payne, who was attempting to secure and control his head movements. Padgett was then tased by a deputy, after which the deputies were able to secure him in the ERC.
Padgett was subsequently indicted for two counts of third-degree assault - one based on the attempt to kick Deputy Stone, and one for spitting upon Deputy Payne. Padgett's jury trial initially took place on September 23-24, 2014, but was abruptly terminated on the second day by the Commonwealth's successful motion for mistrial. Following a second jury trial on February 25-26, 2015, Padgett was found not guilty of assault against Deputy Stone, but guilty of assault against Deputy Payne and for being a first-degree persistent felony offender (PFO). The trial court sentenced Padgett to one year in prison, enhanced to ten years by the PFO. This appeal follows.
Kentucky Revised Statutes (KRS) 508.025 provides, in relevant part, "[a] person is guilty of assault in the third degree when the actor... [b]eing a person confined in a detention facility... inflicts physical injury upon or throws or causes feces, or urine, or other bodily fluid to be thrown upon an employee of the facility." Third-degree assault is a Class D felony.
KRS 532.080. --------
STANDARD OF REVIEW
It is well established that the decision to grant a mistrial is within the trial court's discretion, and such a ruling will not be disturbed absent a showing of an abuse of discretion. Moreover, a mistrial is an extreme remedy and should be resorted to only when there is a fundamental defect in the proceeding and there is "manifest necessity for such an action".Woodard v. Commonwealth, 147 S.W.3d 63, 68 (Ky. 2004) (citations omitted).
ANALYSIS
Padgett presents four issues on appeal, in one of which he contends the trial court erred by retrying him after the Commonwealth's successful motion for mistrial on September 24, 2014. Because we vacate Padgett's conviction based upon this issue, we need not consider his other arguments at this time.
The Commonwealth's motion for mistrial resulted from an objection to defense counsel's initial questions to Deputy Payne on cross-examination. The court had previously ruled upon a motion in limine that questions relating to Deputy Payne's disciplinary history would not be permitted. Deputy Payne had two prior disciplinary infractions in his file, one of which occurred after the incident of this case and resulted in Payne's demotion from Sergeant to Deputy. Despite the court's exclusion of matters relating to Deputy Payne's disciplinary history, defense counsel questioned him on cross-examination as follows:
Counsel: So you were a supervising officer at the time of this incident?
Payne: (nods head)
Counsel: And at the time of this incident, what was your rank?
Payne: Sergeant.
Counsel: Are you a sergeant now?
Payne: No.
Commonwealth: Approach, your honor.
The Commonwealth and the trial court both interpreted defense counsel's last question as a deliberate violation of the court's order on the motion in limine. The court had prohibited counsel from eliciting responses that would bring up Deputy Payne's disciplinary records, and as previously noted, one of those disciplinary actions had resulted in Payne's demotion from Sergeant to Deputy. At the subsequent bench conference, the court was demonstrably unhappy with defense counsel's apparent disregard of its order. Despite defense counsel urging the court that the issue could be resolved with an admonition, the Commonwealth argued that a mistrial was necessary, on grounds that the jury had heard the question and its response, and "you cannot unrung [sic] that bell." The court granted the motion for mistrial, stating, "I have no other reason to expect that that question meant anything other than to bring out the fact that Deputy Payne was demoted; there's no other basis for it." Following mistrial, Padgett was retried and convicted approximately five months later.
Padgett argues his subsequent retrial and conviction resulted in a violation of the constitutional prohibition against double jeopardy. "The Fifth Amendment prohibition against double jeopardy applies to the states via the Due Process clause of the Fourteenth Amendment." Keeling v. Commonwealth, 381 S.W.3d 248, 257 n.10 (Ky. 2012) (citing Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969)). "[T]he Fifth Amendment specifically prohibits the government from prosecuting an individual for the same crime twice. Accordingly, a mistrial after jeopardy attaches must result in dismissal of the charges, and further prosecution is barred unless (1) there is a manifest necessity for a mistrial or (2) the defendant either requests or consents to a mistrial." Id. at 257-58 (citing Cardine v. Commonwealth, 283 S.W.3d 641, 647 (Ky. 2009) (citation and internal quotation marks omitted)). Jeopardy had unquestionably attached in Padgett's first trial, because his jury had been empaneled and sworn. Id. at 257 n.11 (citing Cardine at 646-47). Furthermore, Padgett did not consent, but objected to the Commonwealth's motion for mistrial.
The only remaining question is whether there was a "manifest necessity" for a mistrial. Padgett argues the trial court granted the Commonwealth's motion for mistrial in the absence of any manifest necessity, and therefore his second jury trial resulted in a double jeopardy violation. We agree.
In Cardine, the Supreme Court of Kentucky thoroughly examined the concept of manifest necessity as a limiting factor on a court's decision to grant a mistrial:
Broadly speaking, "[w]hether to grant a mistrial is within the sound discretion of the trial court, and 'such a ruling will not be disturbed absent . . . an abuse of that discretion.'" Bray v. Commonwealth, 177 S.W.3d 741, 752 (Ky. 2005) (quoting Woodard v. Commonwealth, 147 S.W.3d 63, 68 (Ky. 2004)). However, "[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." Id. "[T]he trial judge, in making a mistrial decision, must use 'sound discretion' in declaring a mistrial because a constitutionally protected interest is inevitably affected." Radford [v. Lovelace], 212 S.W.3d [72,] 79 (Ky. 2006) (quoting Grimes v. McAnulty, 957 S.W.2d 223, 225 (Ky. 1997)). And "[a]lthough a trial court is vested with discretion on granting a mistrial, the power to grant a mistrial ought to be used sparingly and only with the utmost caution, under urgent circumstances, and for very plain and obvious causes." Commonwealth v. Scott, 12 S.W.3d 682, 685 (Ky. 2000) (citing Glover v. McMackin, 950 F.2d 1236, 1240 (6th Cir. 1991)). Simply put, "[t]he 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 grant of a mistrial].'" Bray, 177 S.W.3d at 752 (quoting Gould v. Charlton Co., Inc., 929 S.W.2d 734, 738 (Ky. 1996)) (emphasis added).Cardine at 647.
Although the trial court undoubtedly has discretion on whether to grant a mistrial, there must be an adequately-supported threshold finding of manifest necessity in order to reach the point at which such a decision should be made. The Supreme Court of Kentucky has held that "manifest necessity for a mistrial [may be] 'found to exist when the defendant introduces improper evidence which prejudices the Commonwealth's right to a fair trial.'" Id. at 648 (quoting Grimes v. McAnulty, 957 S.W.2d 223, 224 (Ky. 1997)); Sneed v. Burress, 500 S.W.3d 791, 793 (Ky. 2016). Here, however, the Commonwealth objected and stopped the questioning of Deputy Payne regarding his rank before the jury could hear any improper evidence. For all the jury knew, Deputy Payne could conceivably have been promoted rather than demoted, and in any event the trial court could have admonished the jury that questions regarding his rank were not relevant.
Because the jury did not hear improper evidence prior to the Commonwealth's motion for mistrial, there was no prejudicial effect "of such character and magnitude that [the Commonwealth was] denied a fair and impartial trial[.]" Cardine at 647 (citations omitted). As a result, the trial court abused its discretion in finding manifest necessity supporting the Commonwealth's motion. "[R]etrial is barred unless there [is] manifest necessity for the mistrial." Sneed at 793. "Therefore, [Padgett's] second jury trial violated Section 13 of the Kentucky Constitution and the Double Jeopardy Clause of the Fifth Amendment, as applied to the states by the Fourteenth Amendment." Cardine at 653.
III. Conclusion
For the foregoing reasons, we VACATE Padgett's judgment and conviction entered by the Daviess Circuit Court on April 29, 2015, and order that the Indictment in this matter be dismissed as retrial is barred.
ALL CONCUR. BRIEF FOR APPELLANT: Emily Holt Rhorer
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Thomas A. Van De Rostyne
Assistant Attorney General
Frankfort, Kentucky