lMPORTANT NOT|CE NOT TO BE PUBL|SHED OP|N|ON TH|S OP|N|ON lS DES|GNATED ”NOT TO BE PUBL|SHED." PURSUANT TO THE RULES OF ClVlL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(€), TH|S OP|N|ON lS NOT TO BE PUBL|SHED AND SHALL NOT BE ClTED OR USED AS BlND|NG PRECEDENT lN ANY OTHER CASE lN ANY.COURT OF TH|S STATE; HOWEVER, UNPUBL|SHED KENTUCKY APPELLATE DEC|S|ONS, RENDERED AFTER JANUARY 1, 2003, MAY BE ClTED FOR CONS|DERAT|ON BY THE COURT |F THERE lS NO PUBL|SHED OP|N|ON THAT WOULD ADEQUATELY ADDRESS THE lSSUE BEFORE THE COURT. OP|N|ONS ClTED FOR CONS|DERAT|ON BY THE COURT SHALL BE SET OUT AS AN UNPUBL|SHED DEC|S|ON IN THE F|LED DOCUMENT AND A COPY OF THE ENT|RE DEC|S|ON SHALL BE TENDERED ALONG WlTH THE DOCUMENT TO THE COURT AND ALL PART|ES TO THE ACT|ON. RENDERED: AUGUST 2'4, 2017 NOT TO BE PUBLISHED Snpreme Tonri of Ben ` N AL 2016-SC-OOO488-MR - ' ©ATEMQ;M».M,»¢ KEITH JEROME STOVALL t APPELLANT ` ON APPEAL FROM JEFFERSON CIRCUIT COURTv ’ V. HONORABLE JAMES M. SHAKE, JUDGE ~ . NO. 14-CR-OO_2762 COMMONWEALTH OF KENTUCKY b APPELLEE MEMORANDUM OPINION OF THE CCURT A_F_l"_IR_l\lIH_G_ This is a sex abuse case involving minors in which the events occurred between October 19, 2012 and October 19, 2013. Only one issue is raised on appeal. The specific details of the underlying crimes are not relevant to that issue. As such, only a brief factual background i_s necessary. On one occasion while at his residence, Appellant, Keith Jerome Stovall,- ' exposed his genitals and masturbated While in the presence of a minor child named Stephanie.1 On a separate occasion While driving a_`car, Appellant exposed his genitals and masturbated while in the presence of a minor child 1 l’seudonyms are being used to protect the anonymity of both minor victims. named Barbara. Both girls were less than twelve-years-old at the time. They were the nieces of Appellant’s former live-in girlfriend, Julie Martin. As a result of such conduct, Appellant Was subsequently arrested, indicted, and tried by a Jefferson Circuit Court jury. The jury convicted Appellant of first-degree sexual abuse for the incident involving Stephanie and also convicted him of first-degree sexual abuse for the incident involving Barbara. Appellant was additionally convicted of being a second-degree persistent felony offender (PFO). The jury recommended a sentence of 10 years for each sexual abuse conviction. The sentence was enhanced to be served consecutively for a total sentence of twenty years’ imprisonment The trial court sentenced Appellant in accordance with the jury’s recommendation. Appellant now appeals his judgment and sentence as a matter of right pursuant to § llO(2)(b) of the Kentucky Constitution. Mistrial Appellant argues that the trial court erred for failing to grant his motion for a mistrial. The alleged error here arose as a result of the following trial testimony of Louisville Metro Police Detective Rico Williams:' Commonwealth: Did you ever attempt to make contact With [Appellant] and obtain his version of the facts?” Det. Williams: Yes, I did. Commonwealth: And were you able to . . . . Appellant objected to the Commonwealth’s line of questioning before the prosecutor ended his sentence. During a bench conference, Appellant requested a mistrial and argued that the Commonwealth’s questioning 2 impermissibly referenced Appellant’s right to remain silent. The court sustained Appellant’s objection to the prosecutor’s line of questioning, but denied the mistrial motion. Appellant’s counsel failed to request an admonition. “It is universally agreed that a mistrial is an extreme remedy and should be resorted to only when there is a fundamental defect in the proceedings which will result in a manifest injustice.” Gould v. Charlton Co., Inc., 929 S.W.2d 734, 738 (Ky. 1996). “[A] finding of manifest necessity is a matter left to the sound discretion of the trial court.” Commonwealth 1). Scott, 12 S.W.3d 682, 684 (Ky. 2000). As previously noted, Appellant’s trial counsel objected to the Commonwealth’s questioning before the Detective responded with any level of detail concerning his attempts to contact Appellant. The testimony of the victims in this case was clear and compelling. Therefore, Whatever alleged constitutional error that may have occurred here was harmless beyond a reasonable doubt. Chapman v. Califomia, 386 U.S. 18, 24 (1967). Appellant also claims that an admonition following Detective Wi'lliams’ testimony would have been insufficient to cure any alleged error because of previous statements by jurors during voir dire questioning. More specifically, Appellant’s counsel asked the then prospective jurors whether any of them would try to explain themselves if they were accused of wrongdoing Juror #1637116, who sat on the jury, indicated that he believed every situation would be different and that he understood that it might be against an accused 3 person’s best interests to explain himself, even if he Were innocent. Appellant did not attempt to strike that juror from the panel. We are mystified by the point attempted to be made by Appellant, and only address it because he raised it in his brief. We see no problem with the juror’s answer, nor why it was error to keep him on the jury. Neither do we see how this matter makes the failure of the trial court to give an admonition less important Any attempt by the Appellant to link this voir dire matter with a mistrial issue fails. We are unpersuaded by Appellant’s argument that an admonition following Detective Williams’ testimony would have been insufficient to cure the alleged error arising from his testimony See Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003). To the extent this line of questioning could be deemed in error, an admonition would have been a sufficient cure. See Vincent v. Commonwealth, 281 S.W.3d 785, 789-90 (Ky. 2009) (denying mistrial motion and concluding that an admonition would have cured impermissible testimony that violated defendant’S right to remain silent). Nothing that occurred during voir dire changes this conclusion. Therefore, the trial court did not abuse its discretion in denying Appellant’s mistrial motion. Conclusion For the foregoing reasons, We hereby affirm the judgment of the Jefferson Circuit Court. All sitting. All concur. COUNSEL. FOR APPELLANT: Daniel T. Goyette Louisville Metro Public Defender of Counsel Cicely Jaracz Lambert Deputy Appellate Defender Allison Rief Assistant Public Defender COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky Micah Brandon Roberts Assistant Attorney General
Keith Jerome Stovall v. Commonwealth of Kentucky
Combined Opinion