JOHN P. MOORE v. COMMONWEALTH OF KENTUCKY
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RENDERED:
SEPTEMBER 9, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000911-MR
JOHN P. MOORE
v.
APPELLANT
APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE CHARLES W. BOTELER, JR., JUDGE
ACTION NO. 03-CR-00039
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
BARBER AND SCHRODER, JUDGES; HUDDLESTON, SENIOR JUDGE. 1
BARBER, JUDGE:
Appellant, John P. Moore (Moore), appeals his
conviction for three counts of theft by failure to make required
disposition in the Hopkins Circuit Court.
We reverse the
circuit court’s denial of a request for mistrial based on
improper pretrial publicity of a prosecutor’s unrelated claims
about the Appellant.
1
Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and Kentucky Revised Statutes (KRS) 21.580.
Moore was convicted of three counts of theft by
failure to make required disposition of property after a jury
trial.
Moore was the Chief of Police for the City of
Nortonville.
The charges stem from property which allegedly
disappeared after an official search and seizure at the
residence of a suspect.
After the seizure all the items seized
were photographed and cataloged by Moore and his deputy.
Some
of the items were placed in a safe and lockers at the police
department, while others were stored in plain view.
The
suspect, through his lawyer, agreed to forfeit all the property
seized in exchange for an agreement by which the suspect would
not be prosecuted, but would work with police on related cases.
The suspect signed a document forfeiting all the property to the
city.
In addition to personalty, $4,694 in cash was seized in
the search.
Following the forfeiture, Moore placed the cash in
a cash drug fund in a safe at the police department.
Later,
$3,900 of the seized cash was used to make two controlled drug
buys using a confidential informant.
The city Mayor was shown
the result of those drug buys on May 31, 2002.
Moore sold the remaining property to a local jeweler
in two separate buys, one lot for $2,000 and the other lot for
$400.
The property had been valued at $3,000 by a local auction
house, which would have charged a percentage of that sum to
auction the goods.
The funds from those sales were placed in
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the drug fund at the police department.
Moore testified that he
intended to use those funds to purchase a drug dog for the
police department.
Last, Moore sold a $500 bill seized along
with the cash for five (5) $100 bills to a local man, and placed
that money in the drug safe also.
place on April 1, 2002.
All those transactions took
The Mayor testified that the police
department had no drug fund, and that the procedure was for all
cash seized to be deposited in the city’s account by the city
clerk.
The Commonwealth claimed at trial that Moore had used
the proceeds from the sale of the personalty and the $500 bill
to purchase a boat for himself for $3000 on April 1, 2002.
The
seller testified that Moore took possession of the boat
immediately after the purchase.
Moore testified that he bought
the boat on March 28, 2002, the Thursday before Good Friday,
using funds his wife had made selling registered puppies that
she raises.
Moore provided photographs showing that he had
possession and use of the boat over Easter weekend, March 30 and
31, 2002.
The record shows that the check for the sale of the
personalty was not cashed at the bank until April 2, 2002,
meaning that the bank received it either on April 2, 2002, or
after 2:00 p.m. on April 1, 2002.
On May 31, 2002 Moore was suspended from his position
by the city Mayor.
On June 6, 2002 Moore was called to the
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police department by the Mayor.
Moore testified that on that
date all the safes and evidence rooms were open and the
department was “a wreck.”
In June, 2002 it was determined that
the drug fund and the drugs purchased with a portion of those
funds were missing.
Moore’s ledger book containing a record of
drug funds and drug buys was also determined to be missing.
At trial Moore’s defense counsel made a motion for
mistrial.
This motion was made in part due to the one month
delay in the presentation of evidence against him.
The delay
was caused by Moore’s illness and related surgery.
The illness
occurred after presentation of the Commonwealth’s case, but
prior to the defense presenting its case.
Moore complained that
the jurors might have very little memory of the proceedings or
that the jurors might have formed an impression as to guilt
during the delay.
When questioned by the court, various jurors
admitted that they had little memory of the case, but no jurors
complained that they would not be able to make a fair and
informed decision.
Moore contends that the delay prejudiced him
sufficiently that his motion for mistrial should have been
granted.
The Commonwealth argues that the delay was unavoidable
and should not be grounds for a mistrial.
Whether to grant a mistrial is based on the sound
discretion of the trial court.
S.W.3d 897, 906 (Ky. 2000).
Gosser v. Commonwealth, 31
In order to show reversible error,
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the defendant must prove an abuse of that discretion.
Id.
Moore does not show that Kentucky law requires a grant of
mistrial where the trial is temporarily delayed.
have made similar rulings.
See:
551, 570 N.Y.S.2d 147 (1991).
Sister courts
People v. Cooper, 173 A.D. 2d
In People v. Jimson, 135 Ca. App.
3d 873 (Ca. 1982), the court found that a delay caused by
counsel’s illness did not constitute sufficient grounds to
require a mistrial.
Moore also requested that a mistrial be granted due to
improper actions by the local prosecutor.
Moore complains that
the trial court erred in denying his motion for mistrial based
on comments published by the Hopkins County Commonwealth
Attorney.
Although a special prosecutor was appointed in the
present case, Mr. Massamore was the local prosecutor, and one
with whom all the jurors were familiar.
On January 24, 2004 the
prosecutor was quoted in an article published in the
Madisonville Messenger.
In that article Mr. Massamore defended
dismissal of cases by his office stating:
”However, most of the dismissals occurred
following the arrest of a police officer.
The investigation which led to his arrest
caused me to question the integrity of his
cases. I could not, in good conscience,
present his cases to a trial jury without
undermining the credibility of our local
jury system.”
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Although his article did not name Moore, the story was
admittedly discussing Moore, and was available for the jurors to
read during the delay in the case.
During a hearing on the
motion it was admitted that Massamore was concerned about the
effect the article might have on Moore’s trial, and apparently
attempted to delay publication of the piece.
Massamore stated
to the newspaper, “I don’t want anyone to think that we’re
trying to prejudice Mr. Moore or anything else.”
This statement
shows that the prosecution was aware of the damage the article
could do to the trial.
When determining whether a motion for mistrial should
be granted on grounds of improper publicity, the issue is
whether the public opinion was so aroused by the publicity as to
prevent a fair trial.
(Ky. 2000).
Hodge v. Commonwealth, 17 S.W.3d 824, 835
Publicity regarding unrelated bad actions of the
defendant constitutes grounds for a grant of mistrial.
Commonwealth, 789 S.W.2d 748, 749 (Ky. 1990).
Brown v.
The law mandates
that a defendant’s right to fair trial requires that he be
convicted, if at all, based solely on evidence presented at
trial and “not by any outside influence, whether private talk or
public print.”
Patterson v. Colorado, 205 U.S. 462 (1907).
With regard to publication of information in the media
it is not necessary that actual prejudice from the articles be
proven.
Based on the circumstances of the case, the nature of
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the article may require that the court grant a mistrial.
v. United States, 203 F.2d 904, 910-911 (6th Cir. 1953).
Marson
The
Commonwealth asserts that denial of the request for mistrial was
appropriate due to the fact that only one juror admitted reading
Massamore’s article.
When questioned, the other jurors were
equivocal or denied reading the piece.
Due to the extremely
prejudicial and inflammatory nature of the article, the fact
that at least one of the jurors read it and all of them were
exposed to a community that had access to the paper constitutes
grounds for a mistrial.
Even where there is no proof that the article has
actually been read by the jurors, the availability of the
article can create such potential for prejudice that a mistrial
may be granted.
1999).
Nevers v. Killinger, 169 F.3d 352, 363 (6th Cir.
Statements made in the media by a prosecutor regarding a
case or a defendant may constitute grounds for a mistrial.
The
prosecutor may not disseminate evidence about the case not
admissible at trial.
(Ky. 1992).
Bush v. Commonwealth, 839 S.W.2d 550, 554
We recognize that mistrial “is an extreme remedy,
and should be resorted to only where 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).
The focus is not on the prosecutor’s conduct, but
on the overall fairness of the trial.
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Young v. Commonwealth,
129 S.W.3d 343, 345 (Ky. 2004).
In the present case, the
potential for error caused by the article discussing the
prosecutor’s opinion of Moore’s conduct and its result was great
enough that a mistrial should have been granted.
Moore contends that publicity about the case prior to
and during the trial prejudiced him.
During the time in which
the case was delayed due to Moore’s illness various newspaper
articles discussing the case and testimony therein were also
accessible by the jurors who were not sequestered in any way.
At least five jurors admitted having read one or more of the
articles.
Where, as here, the newspaper articles discussed
evidence also presented at trial, and was cumulative rather than
prejudicial, the motion for mistrial may be denied.
United
States v. Williams-Davis, 90 F.3d 490, 499 (D.C. Cir. 1996).
As
a general rule, if the court can determine, through voir dire or
otherwise, that the publicity has either not been read by the
jurors or has not affected the jurors, then publication of
articles about the case does not constitute grounds for a
mistrial.
1992).
Lucas v. Commonwealth, 840 S.W.2d 212, 214 (Ky.App.
In that case the Court stated that “We live in a time
and society where the news media reports freely.
It is
unrealistic to expect to completely sanitize a trial and jury
and the law of the Commonwealth does not require such.
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The
issue is whether the publicity influenced the jury and its
verdict.”
Id., 840 S.W.2d at 215.
At the close of the Commonwealth’s case the defense
made a motion for directed verdict, asserting that the
Commonwealth had failed to prove its case and that insufficient
evidence of guilt had been shown.
This motion was denied.
Moore contends that the evidence of guilt on the three charges
was insufficient to support a verdict of guilty, and that the
conviction must be reversed on that ground.
KRS 514.070
requires that to be found guilty a defendant be shown to have
(1) intentionally failed to make a required disposition of the
property of another, (2) that the defendant intentionally dealt
with the property as his own, and (3) that the defendant failed
to make the required disposition of the property.
In ruling on
a motion for directed verdict the trial court must draw all
reasonable inferences from the evidence in favor of the
Commonwealth.
Questions regarding weight and credibility of the
evidence are properly left for the jury.
Slaughter v.
Commonwealth, 45 S.W.3d 873, 875 (Ky. 2000).
If the evidence
presented is sufficient to induce a reasonable juror to believe
that the defendant is guilty, the case must be presented to the
jury.
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991).
Each of the foregoing allegations of error by the
Appellant when reviewed alone does not mandate a reversal of the
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conviction, but when taken together, we believe, the appellant
did not receive a fair trial and therefore, reverse the
conviction and remand to the trial court for a new trial in
conformity with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jack N. Lackey, Jr.
Hopkinsville, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Samuel J. Floyd, Jr.,
Assistant Attorney General
Frankfort, Kentucky
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