James L. Sneed Jr v. Hon Rodney Burress Judge, Bullitt Circuit Court

RENDERED: MARCH 17, 2016
TO BE PUBLISHED

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2015-SC-000169-MR

JAMES L. SNEED, JR. APPELLANT

ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2014-CA-001786
BULLITT CIRCUIT COURT NO. 12-CR-00292

HON. RODNEY BURRESS, JUDGE APPELLEES
BULLITT CIRCUIT COURT, ET AL.

OPINION OF THE COURT BY JUSTICE CUNNINGHAM

AFFIRMING

In 2012, Appellant, James L. Sneed, Jr., was indicted by the Bullitt

County grand jury and charged with first-degree rape, first-degree sodomy, and

first-degree incest. The alleged victim was Sneed's granddaughter, referred to

herein as Sarah.' The matter proceeded to trial on July 29, 2014. During her

opening statement, Sneed's attorney commented that Sarah's father—a

scheduled witness for the Commonwealth—used untruthfulness as a

mechanism for revenge. The Commonwealth objected and moved for a mistrial

on the basis that defense counsel-had characterized the witness as a liar. 2

I A pseudonym is being used to protect her anonymity.

2 This portion of defehse counsel's opening statement has not been presented to
this Court. Therefore, it is unclear the extent to which defense counsel characterized
the witness as a liar.
 After a lengthy and thorough discussion of relevant case law outside of

the presence of the jury, the trial court denied the mistrial motion. The court

then admonished the jury to disregard defense counsel's characterization of a

particular witness as a liar and that only the jury can make credibility

determinations. Sneed's attorney continued her opening statement,

commenting as follows:

The other way we can look back now and think to ourselves maybe
this isn't very reliable is that in this counseling that [Sarah] has
been involved in, that we've talked about, there are notes about
[Sarah's] trouble with lying. This is a known issue.

The Commonwealth objected and again moved for a mistrial. After another

lengthy discussion of the matter outside of the presence of the jury, the court

granted the mistrial motion. The case was subsequently scheduled for retrial.

Sneed filed a Motion to Prohibit Retrial and Dismiss the Indictment. He

argued that there was no manifest necessity for granting the mistrial and that

retrial would violate his constitutional right to be free from double jeopardy.

The trial court denied the motion to dismiss. Sneed filed a writ of prohibition

with the Court of Appeals requesting an order prohibiting the trial court from

retrying him. The Court of Appeals denied the writ and Sneed appealed to this

Court. Having reviewed the facts and the law, we affirm the Court of Appeals'

denial of the writ and remand this case to the trial court for retrial.

Analysis

An appellate court has discretion to grant a writ where a trial court is

proceeding within its jurisdiction upon a showing that the court is: 1) acting or

is about to act erroneously; 2) there exists no adequate remedy by appeal or
2
otherwise, and 3) great injustice and irreparable injury will result if the petition

is not granted. Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004). We review the

Court of Appeals' determination under an abuse of discretion standard.

Sowders v. Lewis, 241 S.W.3d 319, 322 (Ky. 2007).

The first issue to be addressed is whether a writ of prohibition is the

appropriate form of relief in this case. We held in St. Clair v. Roark that

"although double jeopardy is an appropriate subject for a writ of prohibition, it

is not mandatory that it be addressed in that context." 10 S.W.3d 482, 485 (Ky.

2000). The Court continued as follows:

The court in which the petition is filed may, in its discretion,
address the merits of the issue within the context of the petition for
the writ, or may decline to do so on grounds that there is an
adequate remedy by appeal. Neither approach is mandatory and
the exercise of discretion may well depend on the significance of
the issue as framed by the facts of the particular case. Because of
the importance of the issue raised by St. Clair, and because the
issue is well framed by the facts of this case, the majority of this
Court deems it appropriate to address the issue now rather than
delay resolution until a possible appeal. Id.

Like in St. Clair, it is appropriate here to address the issue now rather than

delay resolution.

Jeopardy attaches when the jury is impaneled and sworn. Cardine v.

Commonwealth, 283 S.W.3d 641, 645-47 (Ky. 2009). It is undisputed that the

jury was impaneled and sworn here. Once jeopardy attaches, Cardine

instructs as follows:

[the] prosecution of a defendant before a jury other than the
original jury or contemporaneously-impaneled alternates is barred
unless 1) there is a 'manifest necessity' for a mistrial or 2) the

3
 defendant either requests or consents to a mistrial. Id. at 647
(citation omitted).

It is also undisputed that Sneed did not request or consent to the mistrial.

Thus, retrial is barred unless there was manifest necessity for the mistrial.

When determining whether there was manifest necessity to declare a

mistrial, we must consider whether the statements made by Sneed's attorney

constitute "improper evidence which prejudice[d] the Commonwealth's right to

a fair trial." Grimes v. McAnulty, 957 S.W.2d 223, 224 (Ky. 1997) (citations

omitted). It is also critical to note that "a finding of manifest necessity is a

matter left to the sound discretion of the trial court." Commonwealth v. Scott,

12 S.W.3d 682, 684 (Ky. 2000).

Sneed contends that his defense was that Sarah was lying and that the

rules of evidence permit him to demonstrate Sarah's history of lying.

Therefore, Sneed argues that by not allowing his counsel to comment on the

credibility of a witness, the trial court denied him the right to present a

defense. The contested comments made by Sneed's counsel in her opening

statement referenced notes from Sarah's therapist concerning Sarah's alleged

untruthfulness. These sealed records documented Sarah's treatment at Seven

Counties Services. The issue of lying was noted in two separate documents

detailing two separate treatment sessions. One of those reports indicates that

Sarah's aunt expressed concern about Sarah's alleged untruthfulness

regarding minor matters.

It is unclear whether the victim's aunt was scheduled to be called as

character or fact witnesses for either party, or whether the therapist would
4
have qualified as an expert if called to testify. See KRE 405; KRE 702; and

KRE 703. However, Sneed argues that the victim's "aunt and the therapist

were under subpoena in the event that they were needed for impeachment."

Sneed further asserts that Inlo rules would have stopped defense counsel from

asking Sarah if she had a history of lying about things as simple as what she

had for breakfast." If Sarah denied this, Sneed contends that Sarah's "aunt or

the therapist could have been called for purposes of impeachment."

Sneed specifically cites KRE 608(b) as a mechanism for introducing this

evidence. However, KRE 608(b) "limits the attack . . . to cross-examination,

meaning that the cross-examiner is bound by the witness's answer and is not

authorized to contradict that answer by introduction of what the Rule calls

`extrinsic evidence."' Robert G. Lawson, The Kentucky Evidence Law

Handbook 4.25[4][c], at 319 (5th ed., 2013). Therefore, if Sarah denied any

alleged specific instances of conduct relating to the information contained in

the therapist's notes, then Sneed would not have been able to "impeach" Sarah

by introducing testimony of the therapist or the aunt in order to contradict

Sarah's answers.

It is also critical to note that "KRE 608(b) does not give parties a 'right' to

cross-examine on specific acts found to be probative of

truthfulness/untruthfulness . . . ." Robert G. Lawson, The Kentucky Evidence

Law Handbook § 4.25[4][e], at 320 (5th ed., 2013). Rather, introduction of

specific acts evidence on cross-examination is at "the discretion of the [trial]

court." Id. citing KRE 608(b). Therefore, it is unlikely that the court would

5
have even permitted Sarah to be cross-examined in such a manner under KRE

608(b). In other words, it would seem illogical for the court to admonish

defense counsel's reference to the victim's history of lying during opening

statements, only to allow the same or similar evidence to come in later under

KRE 608(b). In any event, it would have been inadmissible to elicit testimony

from the therapist or Sarah's aunt in order to contradict Sarah's testimony

concerning her alleged history with lying. KRE 608(b).

And although it was not addressed by either party, introduction of the

therapist's notes and testimony would have been barred by either the

counselor-client privilege or the psychotherapist-patient privilege. KRE 506

and KRE 507. More precisely, that information would have been inadmissible

unless Sneed satisfied at least one of the exceptions enumerated in either KRE

506(d) or KRE 507(c). See also Commonwealth v. Barroso, 122 S.W.3d 554 (Ky.

2003) (providing circumstances in which defendant's right to compulsory

process must prevail over the witness's psychotherapist-patient privilege.).

None of the KRE 507 exceptions apply here and the record does not indicate

that a Barroso hearing was ever conducted. Also, there is no indication that

the trial court considered, or was ever asked to consider, the exceptions

presented in KRE 506(d). Thus, there was no way that this evidence could

have been admissible at trial.

Because defense counsel's statements constituted improper evidence

which prejudiced the Commonwealth's right to a fair trial, we cannot say that a

mistrial was an inappropriate remedy here. Grimes, 957 S.W.2d at 224. As

6
previously noted, this determination was within the sound discretion of the

trial court. Scott, 12 S.W.3d at 684.

And while it is well-settled that lolpening and closing statements are not

evidence and wide latitude is allowed in both" Wheeler v. Commonwealth, 121

S.W.3d 173, 180 (Ky. 2003), the law is also clear that In'either expert nor lay

witnesses may testify that another witness or a defendant is lying or faking."

Moss v. Commonwealth, 949 S.W.2d 579, 583 (Ky. 1997) (citation omitted).

This restriction applies to attorneys as well.

It is equally impermissible for an attorney to phrase her remarks so as to

indicate that a witness is lying based on the evidence presented. Of course,

pointing out inconsistencies in a witness's statements and other evidence—and

drawing reasonable inferences therefrom—is entirely permissible to the extent

that it otherwise comports with our rules of practice and procedure. However,

counsel is not permitted to make affirmative conclusions as to the credibility of

a witness. Determining witness credibility "is within the exclusive province of

the jury." Id. (citation omitted).

It is also critical to consider the specific context in which defense

counsel's impermissible statements were received by the jury here. The

remarks by Sneed's attorney that triggered the Commonwealth's second

mistrial motion occurred within minutes after the jury was admonished to

disregard counsel's previous statement indicating that one of the

Commonwealth's witnesses was lying. Prior to that admonition, defense

counsel was instructed by the court not to comment on the truthfulness of any

7
witness and was specifically told not to use the word "lied" when referring to

witnesses. Trial courts must be afforded wide latitude in controlling the

discipline of their own court rooms and orderly trial proceedings. Declaring a

mistrial is an extreme, but sometimes necessary measure available to the trial

arbiter.

An additional factor weighing in favor of sustaining a mistrial is whether

the defendant created the circumstances necessitating the mistrial. United

States v. Gantley, 172 F.3d 422, 430 (6th Cir. 1999). In Gantley, the court held

that there was manifest necessity for a mistrial where defendant, in direct

violation of a court order, introduced evidence that he had taken a polygraph

test which "obviously was to bolster his own testimony, to the prejudice of the

government." Id. Similar to Gantley, defense counsel's disregard for the trial

court's admonition in the present case created the circumstances necessitating

a mistrial.

Furthermore, it is unlikely that a second admonition would have been

effective under these circumstances. Defense counsel's disregard for the

court's ruling likely confused the jury and certainly brought additional

attention to the disputed matter.

An isolated or discrete statement erroneously impugning the credibility of

witnesses may be considered harmless. Cf. Meece v. Commonwealth, 348

S.W.3d 627, 664-65 (Ky. 2011) (witness's testimony concerning defendant's

experience with lying was held to be harmless error where defense was

premised upon taped statements "having been successful lies, and considering

8
the other evidence produced . . . ."). In the context of the present case,

however, defense counsel's statements concerning Sarah's history of lying were

based on evidence that was inadmissible, highly prejudicial, and in direct

contradiction to the court's previous admonition not to characterize any

witness as a liar. This prejudiced the Commonwealth's right to a

fundamentally fair trial and, thus, created the manifest necessity for a mistrial.

It is also necessary to briefly address the argument presented by the

dissent. Notably, the dissent provides the relevant factual summaries of three

cases, Bartley, Parker, and Johnson, in support of the contention that this

Court routinely affirms the denial of mistrial motions raised by the defense. In

each of these cases, however, we determined that the trial court's admonition

was sufficient to cure the respective error. In contrast, Sneed's counsel directly

defied a previous admonition, thus creating the circumstances in which a

second admonition would not suffice.

Remiss from the dissent's analysis are three cases in which this Court

has held that a mistrial was necessary in order to preserve the

Commonwealth's right to a fair trial. Grimes, 957 S.W.2d at 224; Chapman v.

Richardson, 740 S.W.2d 929 (Ky. 1987); and Stacy v. Manis, 709 S.W.2d 433,

434 (Ky. 1986). In Chapman and Stacy, the circumstances necessitating the

mistrial were based on a single improper question posed by defense counsel to

a prosecution witness. Although we clearly dispute the dissent's

characterization of the contested statement by Sneed's counsel as a "run-of-

the-mill routine misstep," there is nevertheless authority supporting the

9
proposition that a mistrial may be appropriate even when the error is based on

a single improper question or statement posed by counsel. Of course, such

determinations must be analyzed on a case-by-case basis.

Some trial judges may have handled the situation differently. But we

cannot declare that the trial court here abused its discretion by granting the

Commonwealth's motion for a mistrial, or that the Court of Appeals abused its

discretion by denying the writ.

Conclusion

For the foregoing reasons, we affirm the Court of Appeals' denial of the

writ of prohibition and remand this case to the trial court for retrial.

All sitting. Minton, C.J.; Hughes, Keller, and Wright, JJ., concur.

Hughes, J., concurs with separate opinion in which Minton, C.J., joins.

Venters, J., dissents by separate opinion in which Noble, J., joins.

HUGHES, J., CONCURRING: I agree completely with the Court's

conclusion that the declaration of a mistrial in this case was not an abuse of

the trial court's discretion. I write separately in hopes that a fuller account of

the trial court's proceedings and this Court's standard of review will serve as a

response to the concerns raised by the dissent.

RELEVANT FACTS

Near the outset of her opening statement, counsel for Sneed explained to

the jury that the defendant denied the sex-offense allegations that had been

leveled against him and contended that the alleged victim, the defendant's

granddaughter, had fabricated them. Counsel acknowledged that that was a

10
contention the jury would not, and should not, entertain lightly. The

granddaughter had alleged serious crimes, and the jury would rightly be

reluctant to believe that someone might lie about something so grave.

Nevertheless, defense counsel continued, evidence along several different fronts

would show that in this case there was plenty of reason to doubt the veracity of

the granddaughter's accusations. Counsel then proceeded to outline the

different types of evidence which, she asserted, would give the jury pause.

First, counsel promised evidence tending to show that the victim's father,

Jimmy (the defendant's son), was an inveterate liar and manipulator ("Jimmy

used lying as a way to retaliate against people. He did it against James [the

victim's grandfather]."). That was important, counsel said, for a couple of

reasons, one general and one more specific. The general reason was that the

father, by example, had passed his penchant for deceit and manipulation on to

his daughter ("She learned that that was a way to get back at people."), who

was also a liar and manipulator. And, more specifically, the granddaughter's

present accusations illustrated both her and her father's tendencies. She

accused her grandfather, counsel said, at a time when she was mad at her

grandfather for interfering in her relationship with an older boy. It was also at

a time, counsel said, when the father was feuding with the grandfather, and he,

the father, had manipulated his daughter into siding with him in the feud.

Another sort of evidence also suggesting false accusations, counsel

continued, was evidence tending to show that the granddaughter's accusations

had changed over time. She had given a number of statements to different

11
investigators, and those statements included, according to counsel, significant

discrepancies. One such discrepancy concerned the granddaughter's

statement to one investigator that the sexual assaults had been preceded by

the defendant's forcing upon the victim white, prescription pills which had put

her to sleep.

At that point the Commonwealth objected. From the ensuing bench

conference (which expanded into a sort of hearing when the jury was excused),

it appears that prior to trial the Commonwealth had sought clearance under

Kentucky Rule of Evidence (KRE) 404(c) to introduce evidence concerning the

pills, but at the hearing on the Commonwealth's motion the granddaughter

testified and essentially recanted her prior statement. She acknowledged that

her grandfather had occasionally given her white pills, but only, she testified at

the KRE 404 hearing, at her request when she had a headache, and never as a

prelude to any sort of sexual contact. In light of that testimony, the trial court

had denied the Commonwealth's motion for leave to introduce pill evidence

prior to trial, ruling all such evidence irrelevant. Defense counsel's reference to

the pills, the Commonwealth now complained, violated that pretrial ruling.

Defense counsel responded by pointing out that she was not interested

in the pill evidence as such, but rather in the granddaughter's glaringly

inconsistent statements to the investigator and to the court. After considerable

discussion, the court agreed with defense counsel that the inconsistent

statements were relevant to the defense and overruled the Commonwealth's

objection.

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 Before recalling the jury and allowing defense counsel to continue with

her opening, the court gave the parties a brief recess. When the record

resumes, the jury is still absent and the Commonwealth is renewing its

objection to any reference to the pills, but this time is moving for a mistrial on

the ground not only that defense counsel's reference to the pills was a blatant

violation of a prior evidentiary ruling, but also on the ground that defense

counsel's earlier remarks about the victim's father, remarks characterizing him

as a liar, ran afoul of a general rule against that sort of witness

characterization.

The court gave the parties thirty minutes to look for pertinent authority

on this latter issue, and when the hearing recommenced the Commonwealth

referred the court to Moss v. Commonwealth, 949 S.W.2d 579 (Ky. 1997), for

the proposition that no witness, expert or otherwise, should be asked to

characterize the testimony of another witness as a lie or lying. Although

acknowledging that Moss did not apply directly to the present situation, the

court agreed with the Commonwealth that Moss's general solicitude for the

jury's role as credibility determiner was pertinent, and that defense counsel's

opening statement references to key prosecution witnesses as liars were at

odds with that fundamental principle. The trial court also referred to KRE 608,

the rule governing evidence about a witness's character for truthfulness, and

expressed concern that defense counsel's characterizations were not consonant

with the limitations that rule imposes on how and when a witness's character

for truthfulness can be attacked.

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 The court thus agreed with the Commonwealth that defense counsel's

references to the victim's father as a liar were improper. It did not agree,

however, that a mistrial was the appropriate remedy. The Commonwealth

argued in effect that by characterizing them as "liars" defense counsel had

tainted beyond recall the victim's and the victim's father's characters for

truthfulness such that the jury could not be relied upon to give their

testimonies a fair hearing. The trial court rejected that argument. Reading

from Cardine v. Commonwealth, 283 S.W.3d 641 (Ky. 2009), concerning the

standard for granting and the potential double jeopardy consequences of

mistrials, the court ruled that the Commonwealth's interest in a jury not

improperly biased against its witnesses could, at that point at least, be

adequately protected by an admonition. Accordingly, once the jury had

reassembled, the court admonished it as follows: "Statements made by counsel

that a particular witness is a liar are to be disregarded. The credibility of any

and all witnesses during the course of trial is within the exclusive province of

the jury and is for you to decide."

The jury thus advised, defense counsel resumed her opening. She briefly

recalled her earlier remarks about the granddaughter's inconsistent statements

concerning the present allegations, and then asserted that yet a third sort of

evidence cast doubt on the granddaughter's veracity. This evidence, counsel

said, included notes compiled by the girl's counselor during or soon after

therapy sessions, notes that, defense counsel continued, made reference to the

14
fact that the granddaughter's "issues with lying" had emerged as a concern in

therapy.

The Commonwealth promptly objected and renewed its motion for a

mistrial. The counselor's notes were inadmissible hearsay, the Commonwealth

argued, and so could not be referred to during opening statement. Even more

importantly, the reference to the granddaughter as, in essence, "a liar" was

grossly improper in light of the admonition the court had given the jury not five

minutes before.

The court allowed defense counsel to respond. She maintained that

hearsay was not an issue because the counselor would testify. She further

maintained that a counselor's characterization of a person as having "issues

with lying" was not the same as characterizing the person as "a liar," which is

what she had understood the court to have forbidden. She also objected to a

mistrial and offered her view that such a ruling would bar further prosecution.

The court did not this time ask for more research and it did not rehash

the mistrial standards it had noted just a few minutes earlier. It observed that

defense counsel's characterization of the victim as one who, in the eyes of her

counselor, had "issues with lying" raised the same sort of Moss and KRE 608

concerns as the earlier characterization of the victim's father as "a liar." Moss

deplored, the court noted, the characterization of another witness's testimony

as lying, even characterizations by experts. The court did not expressly rule

that an admonition could no longer assure the Commonwealth an unbiased

jury, but given the court's clear awareness of the mistrial standard and its

15
prior decision to admonish, that is a fair interpretation of its decision not to

give a second admonition. The court instead declared a mistrial.

Sneed contends that by declaring a mistrial the trial court erred in either

of two ways. Either there were no grounds for a mistrial, because there was

nothing improper about defense counsel's opening statement, or, even if there

was some impropriety, counsel's opening statement did not provide adequate

grounds for a mistrial because the presumed impropriety would have proved

harmless: regardless of counsel's statements the evidence at trial would

eventually have made the same points. 3

The dissent raises similar concerns. It, too, finds nothing particularly

objectionable in defense counsel's riding roughshod over the rules governing

not only what evidence is admissible, but how and when certain types of

evidence may be admitted. That is not the dissent's main concern, however.

Rather, even if defense counsel did exceed somehow the bounds of a proper

opening statement, the dissent maintains that the trial court misapplied the

standard for granting a mistrial, and that error, the dissent maintains, if this

Court is to be consistent with other mistrial rulings, implicates the double

3 Sneed thus would require trial courts to adopt the wait-and-see approach the
trial court employed in Lickliter v. Commonwealth, 249 Ky. 95, 60 S.W.2d 355 (1933),
whenever counsel refers in his or her opening to evidence that might become
admissible—as impeachment or rebuttal evidence, say—depending on the course of
trial. Neither Sneed nor the Commonwealth develops this idea, however, and so the
Court correctly does not address it. Tying the trial court's hands in that way seems a
bad idea to me, one at odds with what is supposed to be a genuine discretion in the
trial court, but in any event such a rule would not apply in cases like this one, where
counsel did not simply identify potentially admissible evidence, but rather used merely
potential (and highly dubious) evidence to infer and argue—activities appropriate to
closing argument, but not appropriate to opening statements.

16
jeopardy clauses of the federal and state constitutions so as to bar Sneed's

further prosecution. It is this latter concern of the dissent that I want in

particular to address, as it seems to me to misconceive our standard of review.

Before turning to that question, I will briefly address and second the majority

Opinion's conclusion that defense counsel's opening was indeed improper.

DISCUSSION

I. Defense Counsel Exceeded the Proper Bounds of Opening Statement.

In establishing the order of proceedings at a criminal trial, Kentucky

Rule of Criminal Procedure (RCr) 9.42 provides that once the jury has been

sworn "(a) The Attorney for the Commonwealth shall state to the jury the

nature of the charge and the evidence upon which the Commonwealth relies to

support it; (b) The defendant or the defendant's attorney may state the defense

and the evidence upon which the defendant relies to support it or the

defendant may reserve opening statement until the conclusion of the evidence

for the Commonwealth." Referring to the prosecutor's role under part (a) of this

rule, this Court has observed that "the only legitimate purpose of an opening

statement is so to explain to the jury the issue they are to try that they may

understand the bearing of the evidence to be introduced.' . . . Further, 'it is

never proper in an opening statement for counsel to argue the case or to give

his personal opinions or inferences from the facts he expects to prove."' Kiper

v. Commonwealth, 399 S.W.3d 736, 748 (Ky. 2012) (citations omitted). The

Court has held that under the rule, a prosecutor's use of inadmissible evidence

17
regarding a disputed fact during his opening statement is improper. Fields v.

Commonwealth, 12 S.W.3d 275 (Ky. 2000).

Although the Court appears never expressly to have held that the rule

imposes like restrictions on opening statements by the defense, I concur in the

majority's apparent presumption that it does. Cf. Supreme Court Rule (SCR)

3.130-3.4(e) ("A lawyer shall not . . . in trial, allude to any matter that the

lawyer does not reasonably believe is relevant or that will not be supported by

admissible evidence, assert personal knowledge of facts in issue except when

testifying as a witness, or state a personal opinion as to the justness of a

cause, the credibility of a witness, the culpability of a civil litigant or the guilt

or innocence of an accused."). 4 Under these rules, the opening statement by

either side is limited to outlining what counsel in good faith expects to prove or

support by evidence that is available, relevant, and admissible.

4 And see, Arizona v. Washington, 434 U.S. 497 (1978) (upholding grant of
mistrial based on defense counsel's references during opening statement to the fact
that the defendant's prior conviction had been reversed on the ground that the
prosecutor had violated Brady v Maryland, 373 U.S. 83 (1963)); Simmons v. State, 57
A.3d 541 (Md. Ct. Spc. App. 2012) (upholding grant of mistrial based on defense
counsel's disclosure during opening statement that the defendant had offered to take a
lie detector test); United States v. Shaw, 829 F.2d 714 (9th Cir. 1987) (upholding grant
of mistrial based on defense counsel's opening statement anticipating testimony by a
witness who had already indicated that she would invoke the Fifth Amendment);
Pavey v. State, 764 N.E.2d 692 (Ind. App. 2002) (upholding grant of mistrial based on
defense counsel's opening statement to the effect that a key prosecution witness had
been "bought and paid for" by plea agreement with the State); Commonwealth v.
Murray, 496 N.E.2d 179 (Mass. App. 1986) (upholding grant of mistrial based on
defense counsel's references during opening statement to prejudicial evidence some of
which was irrelevant and some was not supported by counsel's good-faith belief in its
existence); but see United States v. Sloan, 36 F.3d 386 (4th Cir. 1994) (holding that
defendant's decision not to testify did not necessitate a mistrial notwithstanding
defense counsel's limited anticipation of that testimony during opening statement).

18
 As the majority opinion notes, defense counsel's characterization during

her opening statement of the victim and her father as "liars" ran afoul of those

rules because under Moss no witness at trial would have been allowed to

characterize the victim's or her father's testimony as "a lie," and under KRE

608 no witness would have 'been allowed to characterize the victim herself or

her father as "a liar." To be sure, depending on the impeachment evidence

ultimately introduced, it may have been a tolerable tactic for defense counsel to

label the victim and/or her father as "liars" during closing argument, but that

disparagement was improper during opening. It was plainly intended,

furthermore, to create a presumption in the jury, prior to any testimony,

against the Commonwealth's key witnesses, and as such the trial court was

well within its discretion when it admonished the jury not to make that

presumption.

As the majority opinion also notes, defense counsel's reference, on the

heels of the trial court's admonition, to notes by the victim's Seven Counties

Services counselor to the effect that the victim had "issues with lying," was

improper for a number of reasons. As with any other witness, the counselor

would never have been allowed to characterize the victim's testimony as a lie or

the victim as a liar. If Sneed's claim is that the victim's "issue[] with lying" is

something different from the character issue addressed by KRE 608, then

questions of expertise under KRE 702 and 703 must be addressed. The

counselor's notes, moreover, were not only hearsay but were subject to KRE

506, the counselor-client privilege. Under that rule, "a client has a privilege to

19
refuse to disclose and to prevent any other person from disclosing confidential

communications made for the purpose of counseling the client, between

himself, his counselor, and persons present at the direction of the counselor,

including members of the client's family." KRE 506(b). All of these rules, of

course, allow for the admission of otherwise inadmissible evidence under

certain circumstances. See, e.g., KRE 506(d), exceptions to the counselor-

client privilege; Cf., e.g., Commonwealth, v. Barroso, 122 S.W.3d 554 (Ky. 2003)

(discussing the limited admissibility of evidence subject to KRE 507, the

psychotherapist-patient privilege). However, the burden of establishing the

exception is unquestionably on the proponent of the evidence, and that burden

includes raising the issue in a timely manner. I concur fully in the majority

opinion's conclusion that defense counsel's reference to the victim's counselor's

notes without having secured a ruling on their admissibility was highly

improper, and the impropriety was only compounded by the fact that the notes

referred to the victim's "issues with lying." Here again, defense counsel's

purpose, plainly, was to prejudice the jury against the victim prior to her

testimony, and the question thus becomes did that impropriety and the

immediately preceding one "manifestly necessitate" a mistrial. They clearly did.

II. The Trial Court Did Not Abuse Its Discretion By Declaring a Mistrial.

Actually, the manifest need for a mistrial is not exactly the question

before us. That was the question that confronted the trial court, which, as

noted above, initially denied the Commonwealth's motion for a mistrial, but

granted its subsequent motion when defense counsel persisted in her

20
premature and improper efforts to impugn the veracity of key prosecution

witnesses. The precise question before this Court, however, is not whether

defense counsel's improper opening statement manifestly necessitated a

mistrial, but rather whether the trial court abused its discretion in deciding

that it did. Cardine v. Commonwealth, 283 S.W.3d at 641. The United States

Supreme Court addressed these related but distinct questions in Arizona v.

Washington, 434 U.S. at 497, which, like this case, involved the declaration of a

mistrial following what the state trial court deemed unduly prejudicial

comments by defense counsel during his opening statement.

As the majority Opinion explains, under the Double Jeopardy clauses of

both the federal and our Kentucky constitutions, when a mistrial has been

declared, retrial of the defendant is not allowed unless the defendant consented

to the mistrial, Cardine, 283 S.W.3d at 647 (citing United States v. Dinitz, 424

U.S. 600 (1976), or unless the mistrial was compelled by "manifest necessity."

Cardine, 283 S.W.3d at 647; Arizona v. Washington, 434 U.S. at 505-06 (citing

United States v. Perez, 22 U.S. 579, 9 Wheat. 579, 580 (1824)). In Washington,

the United States District Court and the Court of Appeals for the Ninth Circuit

agreed that the mistrial had been entered over the defendant's objection and in

the absence of "manifest necessity," and so granted and upheld, respectively,

the defendant's petition for and award of habeas corpus relief. Reversing, the

Supreme Court explained that the Court of Appeals had "applied an

inappropriate standard of review to mistrial rulings of this kind." 434 U.S. at

503.

21
 The Supreme Court acknowledged the appropriateness of the "manifest

necessity" standard as a guide to trial courts confronted, in a variety of cases,

with requests for mistrials. "Nevertheless," the Court observed,

those words ["manifest necessity"] do not describe a standard
that can be applied mechanically or without attention to the
particular problem confronting the trial judge. Indeed, it is
manifest that the key word "necessity" cannot be interpreted
literally; instead, contrary to the teaching of Webster, we
assume that there are degrees of necessity and we require a
"high degree" before concluding that a mistrial is appropriate.
The question whether that "high degree" has been reached is
answered more easily in some kinds of cases than in others.

434 U.S. at 506-07 (footnotes omitted).

Thus, the Court explained, the degree of appellate scrutiny given to a

trial judge's finding of manifest necessity will vary depending on the underlying

facts. At one end of the spectrum, a trial judge's finding of manifest necessity

is entitled to the "highest degree of respect" when juror bias or a hung jury is

involved. 434 U.S. at 510-11. At the other end of the spectrum, the "strictest"

appellate scrutiny is appropriate when the finding of manifest necessity is

premised on "the unavailability of critical prosecution evidence, or when there

is reason to believe that the prosecutor is using the superior resources of the

State to harass or to achieve a tactical advantage over the accused." 434 U.S.

at 508 (footnotes omitted).

With respect to cases, such as Washington, in which potential jury bias

was the problem confronting the trial court, the Court recognized that

the extent of the possible bias cannot be measured, and that
the [federal] District Court was quite correct in believing that
some trial judges might have proceeded with the trial after
giving the jury appropriate cautionary instructions. In a strict,
22
 literal sense, the mistrial was not "necessary." Nevertheless,
the overriding interest in the evenhanded administration of
justice requires that we accord the highest degree of respect to
the trial judge's evaluation of the likelihood that the
impartiality of one or more jurors may have been affected by
[defense counsel's] improper comment. . . . An improper
opening statement unquestionably tends to frustrate the public
interest in having a just judgment reached by an impartial
tribunal. Indeed, such statements create a risk, often not
present in the individual juror bias situation, that the entire
panel may be tainted. The trial judge, of course, may instruct
the jury to disregard the improper comment. In extreme cases,
he may discipline counsel, or even remove him from the trial as
he did in United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075,
47 L.Ed.2d 267. Those actions, however, will not necessarily
remove the risk of bias that may be created by improper
argument. Unless unscrupulous defense counsel are to be
allowed an unfair advantage, the trial judge must have the
power to declare a mistrial in appropriate cases. The interest
in orderly, impartial procedure would be impaired if he were
deterred from exercising that power by a concern that any time
a reviewing court disagreed with his assessment of the trial
situation a retrial would automatically be barred. The adoption
of a stringent standard of appellate review in this area,
therefore, would seriously impede the trial judge in the proper
performance of his "duty, in order to protect the integrity of the
trial, to take prompt and affirmative action to stop .. .
professional misconduct." Id., at 612, 96 S. Ct., at 1082.
.

434 U.S. at 511-13 (citations and footnotes omitted).

To be sure, even in the hung jury and biased jury contexts, where trial

court mistrial decisions are due considerable deference, "reviewing courts have

an obligation to satisfy themselves that, in the words of Mr. Justice Story [in

United States v. Perez, supra], the trial judge exercised 'sound discretion' in

declaring a mistrial." 434 U.S. at 514. This is not, however, a backdoor

invitation to the reviewing court to substitute its "manifest necessity" opinion

for that of the trial court. The reviewing court, rather, is to satisfy itself, "by

close examination of the record," United States v. Sloan, 36 F.3d at 400, that
23
the trial court did not act precipitately, but evinced an appropriate concern for

the possible double jeopardy consequences of an erroneous ruling; gave both

the defense counsel and the prosecutor a full opportunity to explain their

positions; and made a ruling neither irrational nor irresponsible in light of the

particular facts. Washington, 434 U.S. at 514-15.

An examination of the full record in this case makes it clear that the trial

court exercised a sound discretion. Its mistrial ruling was both well informed

and duly deliberate. Indeed, its reading of pertinent passages from Cardine on

the record makes it abundantly clear that it was aware of the mistrial standard

and of the important constitutional interests at stake. The trial court's initial

denial of the Commonwealth's motion and its opting instead for an admonition

makes it equally clear that it was aware of and considered alternatives to a

mistrial. It twice gave both parties a full opportunity to explain their positions.

Its ultimate decision to abort the trial came only after defense counsel ventured

again to paint a witness as a liar, this time by reference to privileged counselor

notes which were inadmissible absent 'a court ruling that they were admissible.

While some judges might have decided differently, this ruling can hardly be

deemed irrational or irresponsible. Defense counsel's persistent attempts—in

the face of an admonition—to bias the jury against the Commonwealth's key

witnesses before their testimonies and the introduction of any evidence, gave

the court reasonable grounds to conclude that the Commonwealth's right to a

fair trial had been compromised. A second admonition, the court could

reasonably have concluded, was apt not to be effective, and, indeed, could have

24
affected the defendant's right to . a fair trial by casting defense counsel in an

unfavorable light.

CONCLUSION

In sum, I concur fully in the majority's conclusion that the declaration of

a mistrial in this case was not an abuse of discretion. The dissent's contrary

position rests, it appears, on a cursory review of the record and a failure to

distinguish the different roles, as emphasized by the United States Supreme

Court in Washington, of trial and appellate courts.

Minton, C.J., joins.

VENTERS, J., DISSENTS: I respectfully dissent. On countless

occasions, this Court has steadfakly held that "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." Dunlap v.

Commonwealth, 435 S.W.3d 537, 604 (Ky. 2013), as modified (Feb. 20, 2014). 5

Wehavinstrucd lohateirdscnoamtril"s

5 Mayse v. Commonwealth, 422 S.W.3d 223, 229 (Ky. 2013), as modified on
denial of reh'g (Mar. 20, 2014); Doneghy v. Commonwealth, 410 S.W.3d 95, 107 (Ky.
2013); Brown v. Commonwealth, 416 S.W.3d 302, 312 (Ky. 2013); Oro-Jimenez v.
Commonwealth, 412 S.W.3d 174, 181 (Ky. 2013); Baumia v. Commonwealth, 402
S.W.3d 530, 541 (Ky. 2013); Slone v. Commonwealth, 382 S.W.3d 851, 858 (Ky. 2012);
York v. Commonwealth, 353 S.W.3d 603, 607 (Ky. 2011); Parker v. Commonwealth,
291 S.W.3d 647, 658 (Ky. 2009); Olson v. Commonwealth, 2005-SC-000592-MR, 2008
WL 746651 at *7 (Ky. Mar. 20, 2008), as modified on denial of reh'g (Aug. 21,
2008)(unpublished); Matthews v. Commonwealth, 163 S.W.3d 11, 17 (Ky. 2005), as
modified (Aug. 25, 2005); Dawson u. Commonwealth, 2003-SC-0363-MR, 2005 WL
1412522 at *3 (Ky. June 16, 2005)(unpublished); Bray v. Commonwealth, 177 S.W.3d
741, 752 (Ky. 2005), overruled on other grounds by Padgett v. Commonwealth, 312
S.W.3d 336 (Ky. 2010); Woodard v. Commonwealth, 147 S.W.3d 63, 68 (Ky. 2004);
Commonwealth v. Scott, 12 S.W.3d 682, 684 (Ky. 2000). Skaggs v. Commonwealth, 694
S.W.2d 672, 678 (Ky. 1985); and others too numerous to list.

25
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). We said in Parker v. Commonwealth,

that a trial court should declare a mistrial "only when there is a fundamental

defect in the proceedings." 291 S.W.3d 647, 658 (Ky. 2009). We said in Brown

v. Commonwealth that a trial court should declare a mistrial only when "the

error 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."' 416 S.W.3d

302, 312 (Ky. 2013) (citation omitted).

In conjunction with the foregoing principles, we have consistently held

that a mistrial is improper when the taint of improper information going to the

jury can be cured with an admonition. Matthews v. Commonwealth, 163

S.W.3d 11, 17 (Ky. 2005). In fact, so strong is our faith in the efficacy of an

admonition to cure the taint of improper evidence that we allow for only two

circumstances in which an admonition will be deemed to be an insufficient

cure: 1) when there is "an overwhelming probability that the jury will be unable

to follow the court's admonition and there is a strong likelihood that the effect

of the inadmissible evidence would be devastating to the defendant;" or 2)

"when the improper question was asked [or other improper information

imported] without a factual basis and was inflammatory or highly prejudicial."

Bartley v. Commonwealth, 400 S.W.3d 714, 735 (Ky. 2013); Parker, 291 S.W.3d

at 658; Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003). Consider

the following recent examples in which, despite obviously improper and

26
seriously prejudicial evidence, we held that a mistrial was properly denied

because the taint could be cured by an admonition.

In Bartley, a trial witness's "disturbing" suggestion that the defendant

inflicted numerous cigarette burns on her severely disabled child was readily

cured by an admonition to the jury "not to consider" the witness's improper

cigarette-burn testimony. 400 S.W.3d 714, 735-36.

In Parker, a witness's improper and highly prejudicial testimony that he

feared he would be killed for testifying against the defendant was cured by the

judge's admonishment of the jury "to disregard the last question and answer."

291 S.W.3d at 657.

In Johnson, the prosecutor's improper questioning of a witness about the

defendant's prior criminal conviction did not warrant a mistrial because the

prejudice was cured by the trial judge's admonition to the jury to "disregard

that particular question and the fact that Mr. Johnson may have pled guilty to

any offense at any other time." 105 S.W.3d at 440-41.

In Olson v. Commonwealth, the prosecutor told the jury in his opening

statement that witnesses would testify that the defendant admitted her role in

the murder. The evidence to support that highly incriminating remark was

never presented. Not only did we conclude that a mistrial was properly denied,

we went so far as to say that the defendant herself could have "removed or

mitigated [the prejudicial effect] through [her] closing argument, by pointing

out that the Commonwealth failed to produce evidence promised in its opening

27
statement." 2005-SC-000592-MR, 2008 WL 746651 at *7 (Ky. Mar. 20, 2008),

as modified on denial of reh'g (Aug. 21, 2008).

The law could not be clearer: a mistrial is an "extreme remedy" to be

granted with "utmost caution" only as a "manifest necessity" when a

"fundamental defect in the proceedings" presents an "urgent or real necessity."

When improper information is heard by the jury, a mistrial is acceptable only if

there is an overwhelming probability that the jury will be unable to follow the

court's admonition and a strong likelihood that the effect of the inadmissible

evidence would be devastating; or if the information presented lacked a factual

basis and was inflammatory or highly prejudicial.

Significantly, in its brief to this Court, the Commonwealth does not

attempt to explain how defense counsel's comment could be "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" 6 but a mistrial. The

Commonwealth says that "defense counsel's blatant disregard for the trial

court's ruling is what necessitated the granting of the mistrial." Yet, we have

never held that violating a court ruling alone is grounds for a mistrial.

Certainly, a serious prejudicial effect arising out of such conduct could compel

a mistrial, but it is the effect that must meet the mistrial standard, not the

audacity of the perpetrator's defiance. The Commonwealth does not explain or

describe any prejudice caused to its case by the defense counsel's conduct; and

neither does the Court of Appeals.

6 Brown, 416 S.W.3d at 312.
28
 The Court of Appeals says that the "repeated disregard of the trial court's

ruling by Sneed's counsel created the need for the trial court to declare a

mistrial." Based on our well-established standards, there cannot be a "need for

the trial court to declare a mistrial" unless there is an "error [] 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." Id. Neither the majority

opinion, the separate concurring opinion, nor the Court of Appeals opinion

explain how the Commonwealth would be denied a fair and impartial trial by

defense counsel's conduct or what "prejudicial effect" was created that could

only be cured by a mistrial.

I fully understand that, as a court of appellate review, we do not

substitute our discretion for that of the trial court. We defer to the trial court's

discretion to determine if, based upon the exacting standards we set, a mistrial

is a manifest necessity. But, to exercise its discretion, a trial court is obliged to

use the standards we set. A discretionary decision that fails to apply the

applicable standard of law is a decision that is "unsupported by sound legal

principles," and thus, is an abuse of discretion. Commonwealth v. English, 993

S.W.2d 941, 945 (Ky. 1999). In other words, a mistrial declared without any

articulable connection to the governing rule of law is unsupported by. "sound

legal principles," and is, therefore, an abuse of discretion.

I do not suggest that this well-respected and experienced trial judge does

not know the standard for declaring a mistrial; I simply point out that he did

not apply the standard for declaring a mistrial and made no findings to indicate

29
the proper standard was applied. In neither the oral ruling from the bench,

nor the written order that later memorialized the declaration of the mistrial, did

the trial court indicate how such prejudice was inflicted upon the

Commonwealth's case that it could not be cured by another admonition. The

trial court offered no explanation for the manifest necessity of a mistrial.

The prosecutor also did not explain the necessity for a mistrial. The only

justification expressed for declaring a mistrial was that defense counsel made

an improper comment during the opening statement. In my view, especially in

the wake of Olson, how such a run-of-the-mill misstep in an opening statement

becomes "an error 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" is a

mystery that requires an explanation.

The harsh ramifications in this case of a decision of this Court adverse to

the Commonwealth is manifest. But the constitutional implication of declaring

a mistrial was also obvious and it was squarely presented in the trial court

before the mistrial was declared. It is no accident that a mistrial is an "extreme

remedy" justifiable only when it is manifestly necessary to cure a "fundamental

defect" that can be fairly addressed no other way. A mistrial in a criminal case

comes at the expense of the defendant's Constitutional right to protection

against double jeopardy. Consequently, we allow the forfeiture of that right

only when no other option is available to avoid injustice. That is why we have

the long litany of cases emphasizing the extraordinary requirements for

granting a mistrial.

30
 Over the years, we have dismissed as harmless error scores of similar

offensive statements by attorneys in both criminal and civil cases because we

could see no perceptible effect at all on the outcomes of the cases. The

majority opinion casts many of those decisions in doubt. We can now expect

that in scores of future cases criminal defendants in cases like Parker,

Johnson, Bartley, and Olsen will remind us how a lawyer's opening statement

claiming that a witness will lie, or is a liar, is now "a fundamental defect in the

proceeding" requiring reversal.

I will not debate with the majority (and separate concurrence) over the

admissibility of evidence alluded to in defense counsel's opening statement.

The majority and separate concurrence postulate various reasons for its

inadmissibility that were not raised, addressed, or decided in trial court or the

Court of Appeals, and thus had no effect on whether a mistrial was necessary.

It suffices to say that the only basis utilized by the trial court and the Court of

Appeals as justification for a mistrial was their perceived violation of the rule

we set forth in Moss v. Commonwealth, 949 S.W.2d 579, 583 (Ky. 1997).

The trial court based the declaration of a mistrial upon this statement

from Moss: "[I]t is improper to require a witness to comment on the credibility

of another witness. A witness's opinion about the truth of the testimony of

another witness is not permitted." The trial court expressly quoted the excerpt

in Moss taken from the Supreme Court of Rhode Island in State v. JameS, 557

A.2d 471, 473 (R.I. 1989): "Neither expert nor lay witnesses may testify that

31
another witness or a defendant is lying or faking. That determination is within

the exclusive province of the jury."

However, Moss does not apply here. Moss prohibits questions that ask

one witness "to characterize the testimony of another witness . . . as lying."

949 S.W.2d at 583. The basis for the rule stated in Moss is that a witness's

opinion about the truth of the testimony of another witness is not relevant to

the jury's determination. Nothing in Moss, or in any other case that I know of,

prohibits a lawyer in his opening statement from telling the jury that the

evidence will show that an adversarial witness will be lying.

We may quibble about the use of such indelicate terms as "liar," and

certainly within some reasonable limits the trial court can preserve the

decorum of the courtroom by moderating the tolerable range of offensive

discourse. But Moss does not apply'o the circumstances of this case and

cannot in this instance form the basis of prejudicial error compelling a mistrial.

For the foregoing reasons, I respectfully dissent.

Noble, J., joins.

32
COUNSEL FOR APPELLANT:

Julie Marie Kaelin

APPELLEE:

Hon. Rodney Burress
Judge, Bullitt Circuit Court

COUNSEL FOR COMMONWEALTH OF KENTUCKY, REAL PARTY IN
INTEREST:

Andy Beshear
Attorney General of Kentucky

William Robert Long, Jr.
Assistant Attorney General

COUNSEL FOR AMICUS CURIAE KENTUCKY ASSOCIATION OF CRIMINAL
DEFENSE LAWYERS:

William G. Deatherage, Jr.

33