ROBIN MOSS v. COMMONWEALTH OF KENTUCKY
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RENDERED: August 21, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
No.
97-CA-001022-MR
ROBIN MOSS
v.
APPELLANT
APPEAL FROM BOYLE CIRCUIT COURT
HONORABLE STEPHEN M. SHEWMAKER, JUDGE
ACTION NO. 96-CR-00105
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING AND REMANDING WITH DIRECTIONS
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BEFORE:
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GUDGEL, CHIEF JUDGE; ABRAMSON, and JOHNSON, Judges.
JOHNSON, JUDGE:
Robin Moss (Moss) appeals from a final judgment
entered on April 22, 1997, in the Boyle Circuit Court, convicting
him of driving under the influence (DUI), fourth offense,
(Kentucky Revised Statutes (KRS) 189A.010), and operating a motor
vehicle (OMV) while his license was suspended or revoked for DUI,
(KRS 189A.090(1)).1
We affirm and remand.
The charges against Moss related to conduct which was
alleged to have occurred before noon on November 16, 1996.
He
was indicted on December 20, 1996, on the DUI charge and a charge
of OMV, third or subsequent offense, (KRS 189A.090(2)(c)).
Prior
to the trial on March 10, 1997, the OMV charge was amended to a
first offense, a Class B misdemeanor.
During its case-in-chief,
the Commonwealth offered the testimony of two witnesses, Deputy
James Wilcher (Deputy Wilcher) of the Boyle County Sheriff's
office, and Robin Parks (Parks).
be summarized as follows:
Deputy Wilcher's testimony can
On November 16, 1996, Deputy Wilcher
was dispatched to look for a blue vehicle being operated by a
person possibly under the influence of intoxicants.
Deputy
Wilcher observed a blue car drive to the gas pumps at Mr.
Miser's, a convenient-type store in Perryville.
At that time,
Moss, who was known to Deputy Wilcher, was riding in the front
passenger seat of the vehicle.
identity of the driver.
Deputy Wilcher did not know the
Since Deputy Wilcher was looking for a
blue pick-up truck and not the blue automobile in which Moss was
riding, he left Mr. Miser's.
However, after learning that he was
to look for a blue automobile, he returned a short while later.
1
The final judgment erroneously states that the jury found
Moss guilty of OMV, third offense. The jury was not instructed
to find, nor did it find, Moss guilty of a subsequent offense of
OMV. This is an obvious clerical error that should be corrected
on remand.
-2-
As Deputy Wilcher approached Mr. Miser's, he saw the car being
driven away from the pumps, but he was too far away to determine
who was driving.
The driver parked the car at the edge of the
parking lot and then got out of the car.
When Deputy Wilcher
pulled into the parking lot, he blocked the car and checked the
license plate to determine if it was the vehicle he had been
dispatched to locate.
At that time, Moss was sitting in the back
seat and was wearing clothes similar to those worn by the person
Deputy Wilcher had moments before observed exiting the driver's
seat of the car.
The man Deputy Wilcher had originally seen
driving the car to Mr. Miser's was sitting in the front passenger
seat.
Deputy Wilcher had both men get out of the vehicle.
There were opened and unopened beer cans in the car.
The man
with Moss, Edward Junior Howard (Howard), told Deputy Wilcher
that he was the owner of the car.
Moss told Deputy Wilcher that
at Howard's request he had driven the car the 50 to 75 feet
distance from the gasoline pumps to the parking spot.
He asked
Deputy Wilcher not to arrest him for DUI as he would be sent to
prison, and suggested that his conduct warranted an arrest for
public intoxication.
tests.
Deputy Wilcher gave both men field sobriety
After they failed the tests, Deputy Wilcher arrested both
Moss and Howard and took them to the county jail in Danville.
Parks, an employee of the Danville Police Department,
testified that she performed a breathalyzer test on Moss which
resulted in a reading of 0.155%.
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The Commonwealth closed its case.
Moss moved the trial
court for a directed verdict based solely on the grounds there
was
insufficient evidence to establish Moss as being the driver
of the vehicle.2
The motion was denied.
Moss testified in his own defense.
He told the jury
that he and Howard had been driving around for about an hour and
that he had consumed three or four beers.
He testified that the
car was owned by Howard, and that Howard was the only one who had
driven the car that morning.
He stated that when they arrived at
Mr. Miser's, Howard pumped the gasoline while he went inside to
pay for the gas and to buy cigarettes.
He explained that when he
came out of Mr. Miser's, he could not get the front passenger
door to open so he went around the car and sat in the back seat
behind the driver.3
He acknowledged telling Deputy Wilcher that
he drove the car after getting gas, but told the jury he lied to
the deputy because he was nervous.
He further admitted asking
Deputy Wilcher to charge him with public intoxication instead of
2
The Commonwealth had not presented any evidence bearing on
the OMV charge.
3
The appellant's brief contains the following statements:
"When [Moss] tried to get back into the passenger side he could
not get the door open. [Moss] then opened the driver's side door
and crawled into the back seat behind the driver." The inference
from these statements is that the automobile only had two doors
and that Moss had to go around the car and open the driver's door
to get in. However, Moss testified that the vehicle had four
doors. Thus, the obvious question is, if Moss could not get the
front passenger door open and he was going to get into the back
seat, why would he not enter the back seat from the back door on
the passenger side, instead of going around to the driver’s side?
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DUI and stating to the deputy that he was afraid of going to
prison.
The following testimony elicited from Moss on crossexamination forms the basis for this appeal:
Q.
Do you have a driver's
A.
No, sir.
Q.
Had your license been
A.
Yes, sir.
license?
suspended?
Q. Had they been suspended
for drunk driving?
A.
Yes, sir.
There was no objection to any of these questions.
Immediately
after this exchange between the Commonwealth's Attorney and Moss,
the defense rested its case.
In chambers, Moss' counsel moved
for a mistrial and argued: "The jury now knows, if it didn't
suspect before, that [Moss] has a prior D.U.I. conviction.
was not necessary."
That
The trial court denied the motion stating,
"I think it's part of the evidence to support the separate charge
of operating a motor vehicle with a suspended license. . . ."
The jury found Moss guilty on both charges and fixed
his punishment on the OMV charge at 90 days to serve and a fine
of $250.
During the sentencing phase on the felony DUI, the jury
heard evidence that Moss had been convicted of DUI on three
previous occasions during the last five years.
It found Moss
guilty of DUI, fourth or subsequent offense and recommended a
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sentence of five years.
On April 22, 1997, Moss was sentenced by
the Boyle Circuit Court in accordance with the jury's
recommendation.
In this appeal, Moss contends that he was
"substantially prejudiced" when the prosecutor was "allowed" to
cross-examine him regarding a previous DUI conviction during the
guilt phase of the trial.
Moss argues the questioning offended
both the mandate of Commonwealth v. Ramsey, Ky., 920 S.W.2d 526
(1996), and Kentucky Rules of Evidence (KRE) 404(b).
Moss argues
that he preserved the error for review by moving for a mistrial
at the close of the case.
However, we agree with the
Commonwealth that Moss’ failure to make a contemporaneous
objection has resulted in the waiver of any error.
Kentucky
Rules of Criminal Procedure (RCr) 9.22; and Bell v. Commonwealth,
Ky. 473 S.W.2d 820, 821 (1971).
Even if the alleged error were properly preserved for
our review, we find no error warranting reversal of the judgment.
The trial court is vested with broad discretion in ruling on a
motion for a mistrial.
See Jones v. Commonwealth, Ky. App., 662
S.W.2d 483, 484 (1983),
Adkins v. Commonwealth, Ky. App., 647
S.W.2d 502, 505 (1982).
The decision to grant such a motion is
appropriate only where the circumstances reveal "’a manifest
necessity for such an action or an urgent or real necessity.’"
Skaggs v. Commonwealth, Ky., 694 S.W.2d 672, 678 (1989), cert.
denied, 476 U.S. 1130, 106 S. Ct. 1998, 90 L. Ed. 2d 678
(1986)(quoting Wiley v. Commonwealth, Ky. App., 575 S.W.2d 166
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(1979).
"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., Ky., 929 S.W.2d 734,
738 (1996).
We agree with Moss that Ramsey holds that "previous DUI
convictions are not admissible during the guilt phase of a trial
when offered to enhance the penalty." 920 S.W.2d at 529.
However, the alleged prejudicial testimony elicited from Moss was
not sought to enhance any penalty, but, as the trial court found,
was relevant and necessary to satisfy one of the elements of KRS
189A.090(1).4
In order to obtain a conviction on the OMV charge,
the Commonwealth was required to prove that Moss was driving
while his license was revoked or suspended because of a DUI
conviction.
For this reason, Moss' arguments pertaining to KRE
404(b) and his contention that the proof of the reason for the
license's suspension could wait until the penalty phase, are
flawed.
Clearly, the only way to comply with the dictates of
Ramsey, and allow the Commonwealth to prove all the essential
elements of an OMV offense pursuant to KRS 189A.010, is to sever
the trial of the DUI charge from the OMV charge.
RCr 9.16; see
Hubbard v. Commonwealth, Ky., 633 S.W.2d 67 (1982) (defendant
4
This statute reads: "No person shall operate a motor
vehicle while his license is revoked or suspended for violation
of KRS 189A.010. . . .
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charged with several crimes, including possession of a handgun by
a convicted felon, entitled to have handgun charge severed from
trial on other charges to prevent prejudice from "jury's
knowledge of previous convictions").
for such relief.
However, Moss did not ask
Having failed to request a severance of the
charges, having failed to move for a directed verdict on the OMV
charge at the close of the Commonwealth's case-in-chief, having
failed to object to the questions propounded by the
Commonwealth's Attorney, and having failed to request an
admonition, in short, having failed to take any steps that could
have eliminated or defused the risk of prejudice, Moss would have
us hold that the trial court abused its discretion in denying his
motion for a mistrial.
As recognized by Moss' counsel at the time he moved for
a mistrial, it was apparent from other trial testimony that this
was not Moss' first exposure to criminal sanctions for driving
while intoxicated.
Moss admitted telling Deputy Wilcher that a
DUI conviction would result in him going to prison.
the evidence of Moss' guilt was substantial.
Furthermore,
Under these
circumstances, we can find no "manifest injustice" warranting a
mistrial and thus no abuse of discretion on the part of the trial
court.
Accordingly, the judgment of the Boyle Circuit Court is
affirmed and the matter is remanded with directions to correct
the judgment to conform to the jury's verdict.
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ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF FOR APPELLEE:
Hon. A. B. Chandler, III
Attorney General
Hon. Mark Wettle
Louisville, KY
Hon. Perry T. Ryan
Assistant Attorney General
Frankfort, KY
ORAL ARGUMENT FOR APPELLEE:
Hon. Perry T. Ryan
Assistant Attorney General
Frankfort, KY
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