MICHAEL PENMAN v. COMMONWEALTH OF KENTUCKY
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RENDERED:
September 3, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002648-MR
MICHAEL PENMAN
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES KELLER, JUDGE
ACTION NO. 98-CR-00645
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
KNOPF, MILLER, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This is an appeal from a conviction of three
counts of trafficking in a controlled substance and one count of
second-degree persistent felony offender.
Appellant, Michael
Penman, argues that the trial court erred when it failed to
declare a mistrial after the Commonwealth brought in evidence at
trial that the court had previously ruled inadmissible.
After
reviewing the record and the applicable law, we affirm.
The facts of the case are as follows:
A confidential
informant had provided information to the Lexington Police
Department that Leslie Hurrigan, “Hurrigan”, was selling cocaine
from his residence.
The informant indicated that Hurrigan didn’t
keep the drugs at his residence but would call other persons,
including appellant, who would bring the drugs to him.
The
informant agreed to participate with the police in controlled
drug purchases and was provided with marked drug money and
surveillance equipment.
The first drug transaction was conducted on April 3,
1998.
The informant went to Hurrigan’s residence, and a Kimberly
Lyons transported cocaine to Hurrigan’s home, which was
subsequently sold to the informant.
No arrests were made after
that transaction, and the informant agreed to participate with
the police in further investigations.
On April 6, 1998, the informant contacted Hurrigan for
a second drug purchase.
Hurrigan placed a call to someone,
presumed to be appellant, who indicated they would meet them at
Hurrigan’s residence in approximately twenty minutes.
Appellant
was photographed entering and leaving the residence a short time
later.
The informant purchased a substance, allegedly from
appellant, which was identified by the Kentucky State Police
Forensic Laboratory as one yellow “rock” weighing approximately
442 mg containing cocaine base.
On April 9, 1998, the informant contacted Hurrigan
again for a drug purchase.
The informant was told that a pair of
Nike Air Jordan XIII tennis shoes would be needed for the
transaction, along with $50.00 cash.
The informant went to
Hurrigan’s residence with the requested shoes and cash.
The
inside of the shoes had been marked by Detective Pete Ford so
that he could positively identify them later.
After the
informant arrived, Hurrigan placed a call to a person, presumed
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to be appellant, concerning the transaction.
Appellant drove to
the residence a short time later and was photographed entering
and leaving the residence.
The informant allegedly gave
appellant the tennis shoes and $50.00 cash in exchange for
substances in two plastic bags.
The police lab determined one
bag contained approximately 627 mg of yellow solid and the other
contained approximately 116 mg of white solid; both substances
contained a cocaine base.
On April 16, 1998, the informant contacted Hurrigan for
another purchase.
Upon the informant’s arrival, Hurrigan placed
a call to a person believed to be appellant.
Hurrigan told the
informant that they would have to drive to appellant’s location
on Centre Parkway.
Undercover officers monitored the scene, and
appellant was observed standing on a balcony while John Walker, a
resident of the Centre Parkway area, completed the transaction
with the informant.
The substance purchased by the informant was
identified by the police lab as yellow “rocks” weighing
approximately 363 mg containing cocaine base.
Appellant was arrested on May 6, 1998.
arrested on May 6, 1998.
Hurrigan was
Walker was arrested on May 7, 1998.
Lyons was arrested on May 28, 1998.
After his arrest, appellant
was interviewed at the Fayette County Detention Center by
Detective Ford.
Ford discussed the pending drug trafficking
investigation, and appellant allegedly acknowledged his
involvement in the sale of drugs.
During the interview,
appellant also allegedly confessed to Ford that he had flushed 22
ounces of cocaine down a toilet on a prior occasion, although
this was unrelated to the transactions with which he was charged.
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During a search of appellant’s home in Nicholasville, Kentucky,
police officers found the Nike shoes marked by Detective Ford
that had been used in the April 9, 1998 transaction.
On June 23,
1998, appellant was indicted by the Fayette Circuit Court on
three counts of trafficking in a controlled substance first
degree and one count of persistent felony offender second degree.
Prior to trial, appellant filed a motion in limine,
asking the court to rule that certain evidence not be admitted.
The court ruled that the statement that appellant allegedly made
to Detective Ford, that he had on a prior occasion flushed 22
ounces of cocaine down a toilet, was inadmissible.
Appellant was tried by a jury on September 29, 1998.
The informant did not testify.
Hurrigan and Walker testified
that it was appellant who had sold the drugs.
Detective Ford,
testifying as to the contents of appellant’s post-arrest
interview, stated that appellant, “told me that he does sell
crack cocaine but that he’s not as big a dealer as people make
him out to be,” that appellant claims that “he doesn’t control
the crack cocaine scene in the Centre Parkway area,” and that
appellant stated that he had a source out of Toledo from whom he
has acquired over a kilo of cocaine.
Detective Ford then testified that appellant “stated
that he flushed 22 ounces of cocaine down the toilet in the early
part of 1998 when detectives executed a search warrant that was
meant for . . .”, at which point appellant objected as it
violated the court’s prior ruling that this evidence was
inadmissible.
The Commonwealth argued that previous testimony by
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Walker had “opened the door” to the introduction of this
statement.
Appellant argued that Walker’s testimony had not
“opened the door” and moved for a mistrial.
The judge noted that
there was a break coming up, during which he would decide whether
to grant the mistrial.
After reviewing Walker’s testimony, the
court concluded that it had not “opened the door” as the
Commonwealth had asserted.
The court found that Detective Ford’s
testimony - that appellant “stated that he flushed 22 ounces of
cocaine down the toilet” -
was clearly a violation of the
court’s prior ruling that this evidence was inadmissible.
The
court stated, however, that, taking everything into
consideration, a mistrial was not justified.
The court then
admonished the jury to disregard the statement, and the trial
continued.
Appellant testified in his own defense that he didn’t
use or sell drugs and that he had purchased the marked Nike shoes
from the informant.
Appellant also denied making the statements
to Detective Ford admitting to his involvement with drugs.
Appellant was convicted of three counts of first-degree
trafficking in a controlled substance.
Appellant waived his
right to sentencing by the jury and entered a plea of guilty to
second-degree persistent felony offender.
Appellant was
sentenced to seventeen years’ imprisonment.
Appellant argues that the trial court erred when it
failed to declare a mistrial after the Commonwealth intentionally
violated the court’s previous ruling by introducing the statement
about appellant having flushed twenty-two ounces of cocaine down
a toilet.
Appellant asserts that the evidence against him was
not strong, and the Commonwealth’s introduction of the
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inadmissible statement served only to inflame the jury.
Appellant argues that since his defense was that he didn’t use or
sell drugs, if Detective Ford had not “slipped in” evidence that
appellant had, on a prior occasion, possessed a large amount of
cocaine worth thousands of dollars, the jury might not have found
him guilty.
A motion for mistrial must be reviewed according to the
facts and circumstances of the individual case.
Gould v.
Charlton Co., Inc., Ky., 929 S.W.2d 734 (1996).
A mistrial
should only be granted by the trial court if there is a manifest,
urgent, or real necessity for such action.
Skaggs v.
Commonwealth, Ky., 694 S.W.2d 672 (1985), cert. denied, 476 U.S.
1130, 106 S. Ct. 1998, 90 L. Ed. 2d 678 (1986).
The Kentucky
Supreme Court has stated:
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. The occurrence
complained of 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.
Gould, 929 S.W.2d at 738.
After reviewing the record, we determine that the judge’s
admonishment of the jury not to consider the statement made by
Detective Ford was sufficient to remove its prejudicial effect.
The trial judge admonished the jury as follows:
Ladies and gentlemen, during Officer Ford’s
testimony he made a statement that Penman had
told him that he had flushed twenty-two
ounces of cocaine down the toilet. I had
previously ruled that he would not be able to
make that statement to you, that he could not
state that Penman had told him that . . . and
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the reason why, is there is no evidence of
that, there is no proof that that happened or
didn’t happen. There is no way to prove it
either way and there is no additional proof
of it . . . and so it is irrelevant, and it
only can serve to inflame and prejudice you
in determining his guilt of these other
charges, and that is something that is
completely unrelated and there is no evidence
that it happened or it didn’t happen and so
that’s why I’d excluded it. And the
Commonwealth intentionally violated my ruling
in that regard by bringing that out with that
police officer . . . and so I’m going to
admonish you do not consider that, do not
consider that in any manner whatsoever,
because there is certainly no evidence that
that happened and the only thing that it
could serve is just to inflame you on these
other charges and there’s no evidence that it
happened and it does not have anything to do
with this case. Can each of you disregard
that testimony and not consider that in
reaching the verdicts in this case. Is there
anyone who thinks they cannot, raise your
hand? O.K., thank you.
It is normally presumed that a jury will follow an
instruction to disregard inadmissible evidence that is
inadvertently presented to it, unless (1) there is an
overwhelming probability that the jury will be unable to follow
the court’s admonition; and (2) a strong likelihood that the
effect of the inadmissible evidence would be devastating to the
defendant.
Alexander v. Commonwealth, Ky., 862 S.W.2d 856
(1993), overruled on other grounds by Stringer v. Commonwealth,
Ky., 956 S.W.2d 883, citing Greer v. Miller, 483 U.S. 756, 766,
n. 8, 107 S. Ct. 3102, 3109, n. 8, 97 L. Ed. 2d 618 (1987).
“Absent bad faith, an admonition given by the trial judge can
cure a defect in testimony.”
Alexander, 862 S.W.2d at 859.
See
also Stanford v. Commonwealth, Ky., 734 S.W.2d 781 (1987); Dunn
v. Commonwealth, Ky. App., 689 S.W.2d 23 (1984).
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We adjudge that there is no overwhelming probability
that the jury was unable to follow the trial court’s admonition.
The admonition was lengthy, acknowledged that the Commonwealth
had intentionally violated the court’s ruling, and emphasized
that there was no proof of the cocaine flushing incident to which
Ford had testified.
The judge asked if any of the jurors felt
that they couldn’t disregard the statement.
Furthermore, in
light of Ford’s other testimony, the introduction of the
inadmissible statement was not devastating to appellant.
Ford
had already testified that appellant admitted to being a small
time dealer and that he had a drug source in Ohio from whom he’d
previously acquired up to a kilo of cocaine.
Additionally, the
trial court found that, although the Commonwealth did
intentionally violate the court’s ruling, it did not do so with
malice.
Absent an abuse of discretion, a trial court’s decision
whether or not to grant a mistrial will not be disturbed.
See
Miller v. Commonwealth, Ky., 925 S.W.2d 449, 453 (1996).
Having
determined that the trial court’s admonition to the jury was
sufficient to remove the prejudicial effect of Detective Ford’s
statement, we adjudge that the trial court did not abuse its
discretion in not granting a mistrial.
For the aforementioned
reasons, the judgment of the Fayette Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Elizabeth Shaw
Richmond, Kentucky
A. B. Chandler, III
Attorney General
John E. Zak
Assistant Attorney General
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Frankfort, Kentucky
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