JOE FRANCES BENNETT v. COMMONWEALTH OF KENTUCKY AND MARCELLA MARIE PATTERSON v. COMMONWEALTH OF KENTUCKY
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RENDERED:
DECEMBER 8, 2006; 10:00 A.M.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-002369-MR
JOE FRANCES BENNETT
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
ACTION NO. 04-CR-002460
COMMONWEALTH OF KENTUCKY
APPELLEE
AND
NO.
2005-CA-002370-MR
MARCELLA MARIE PATTERSON
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
ACTION NO. 04-CR-002460
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
1
COMBS, CHIEF JUDGE; WINE, JUDGE; PAISLEY,1 SENIOR JUDGE.
Senior Judge Lewis G. Paisley sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
WINE, JUDGE:
Joe Frances Bennett and Marcella Marie Patterson
appeal from conditional guilty pleas following a mistrial in
their joint trial on drug trafficking charges.
They both argue,
for different reasons, that the trial court erred in denying
their motions to dismiss on double jeopardy grounds.
However,
their motions for a mistrial preclude them from objecting to a
retrial on double jeopardy grounds, and there is no showing that
the mistrial was caused by an intentional action of the
prosecutor.
We further conclude that the trial court acted
within its discretion in finding that a manifest necessity
existed for a mistrial in both cases.
Hence, we affirm.
On August 30, 2004, a Jefferson County grand jury
returned an indictment charging Bennett and Patterson with
first-degree trafficking in a controlled substance
(methamphetamine) and first-degree possession of a controlled
substance (schedule II – cocaine).
The charges arose from a
controlled delivery of a package containing 501 methamphetamine
pills on October 23, 2003.
The package was from a fictitious
address in New York and was addressed to “Marcella Peterson.”
After the package was discovered through screening at a Federal
Express hub, the police obtained a search warrant and then had
the package delivered to the address where Bennett and Patterson
were living.
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Upon delivery of the package, the police entered and
searched the apartment pursuant to the warrant.
Bennett and
Patterson were the only persons in the apartment and a blacklight test revealed that they had opened the package.
During
the search, the police discovered two pills containing suspected
cocaine.
They also discovered a stack of unused Federal Express
boxes in a closet.
The matter proceeded to a joint trial in July 2005.
At the close of the Commonwealth’s case, the trial court
directed verdicts of acquittal on the cocaine charges.
After
the conclusion of all of the evidence, the jury was instructed
on principal/accomplice theories for trafficking in or
possession of methamphetamine.
However, the jury sent a note
out indicating that they had discovered a paper in the stack of
unused Federal Express boxes.
The jury foreman stated that they
considered the paper significant because it was a Federal
Express bill showing Bennett’s name and made out for delivery in
New York City.
The paper had not been introduced at trial.
Co-
counsel for the Commonwealth admitted that he had seen the paper
in the boxes but had not recognized its significance.
At that point, Bennett’s counsel moved for a mistrial
and Patterson’s counsel joined in this motion.
Subsequently,
Patterson’s counsel asked if it would be possible to sever the
cases because the taint only implicated Bennett.
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The trial
court concluded that the cases could not be severed because
Bennett and Patterson were charged as complicitors.
However,
the court found that the inadvertently admitted evidence had
created a manifest necessity for a mistrial.
Thereafter, Bennett and Patterson each filed motions
to bar retrial based on double jeopardy.
their motions.
The trial court denied
The parties then announced that they had reached
a negotiated settlement of the charges.
Bennett entered an
Alford plea to first-degree possession of a controlled substance
and was sentenced to five years’ imprisonment, probated for a
period of five years.
Patterson entered an Alford plea to
facilitation to trafficking and was sentenced to twelve months’
imprisonment, probated for a period of two years.
Bennett and Patterson now appeal from the trial
court’s order denying their motions to bar retrial based on
double jeopardy.
The Commonwealth argues that this issue is not
reviewable in light of their guilty pleas.
Commonwealth, 147 S.W.3d 22, 39 (Ky. 2004).
Thompson v.
We disagree.
The trial court’s judgments do not indicate that
Bennett and Patterson were entering conditional guilty pleas
pursuant to RCr 8.09.
However, the Commonwealth’s plea offer
states that the defendants “reserve[] right to appeal all
pretrial motions.”
Since the motions to dismiss preceded the
scheduled retrial, we conclude that the Commonwealth’s offer
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anticipated an appeal of this issue.
Therefore, Bennett and
Patterson adequately reserved their right to appeal from the
trial court’s order denying their motions to dismiss.
The central question in these appeals concerns the
trial court’s finding that a second trial following the mistrial
was not barred by the constitutional prohibition against double
jeopardy.
A defendant’s motion for a mistrial generally removes
any bar to retrial.
1983).
Stamps v. Commonwealth, 648 S.W.2d 868 (Ky.
However, an exception to this rule exists in cases where
the prosecutor’s conduct was intended to provoke the defendant
into moving for a mistrial.
Martin v. Commonwealth, 170 S.W.3d
374, 378 (Ky. 2005), citing Oregon v. Kennedy, 456 U.S. 667, 102
S. Ct. 2083, 72 L. Ed. 2d 416 (1982).
“[T]he conduct giving
rise to the order of mistrial [must be] precipitated by bad
faith, overreaching or some other fundamentally unfair action of
the prosecutor or the court."
Martin, 170 S.W.3d at 378,
quoting Tinsley v. Jackson, 771 S.W.2d 331, 332 (Ky. 1989).
In this case, the trial court accepted the
prosecutor’s explanation that he did not recognize the
significance of the billing statement.
Consequently, the trial
court concluded that the mistrial was not precipitated by any
intentional action by the Commonwealth.
Neither defendant
points to any evidence or circumstances upon which we could
determine that this finding was clearly erroneous.
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In the alternative, Bennett contends that this Court
should adopt a new standard permitting interposition of the
double jeopardy bar to retrial if the prosecutor’s actions
recklessly create a manifest necessity for a mistrial.
However,
this Court is obligated to follow precedent established by the
Kentucky Supreme Court.
SCR 1.030(8)(a).
Since the Kentucky
Supreme Court has definitely adopted the standard set forth in
Oregon v. Kennedy, supra, this Court is not at liberty to adopt
a less stringent standard.
In Patterson’s appeal, the Commonwealth argues that
she failed to object to Bennett’s motion for a mistrial and is
therefore barred from raising the issue on appeal.
Although the
parties’ briefs are not entirely clear on this point, the record
shows that Patterson joined in Bennett’s motion for a mistrial.
Although Patterson’s counsel explored other possible remedies,
counsel never explicitly withdrew the previous motion for a
mistrial and never expressly objected to the trial court’s
granting of a mistrial to both defendants.
Consequently, we
agree with the Commonwealth that Patterson is also precluded
from raising the issue on appeal.
And even if Patterson implicitly withdrew the motion
for a mistrial, the trial court’s reasoning finding manifest
necessity is sound.
Patterson primarily argues that the trial
court erred in concluding that the jury’s exposure to the
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shipping bill created a manifest necessity requiring a mistrial
as to both defendants.
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.
The error 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.
Commonwealth, 177 S.W.3d 741, 752 (Ky. 2005).
Bray v.
Patterson
correctly notes that the shipping bill implicated only Bennett.
As a result, she contends that there was no manifest necessity
to declare a mistrial in her case.
Nevertheless, the decision to grant a mistrial is
within the sound discretion of the trial court, and such a
ruling will not be disturbed absent an abuse of that discretion.
Woodard v. Commonwealth, 147 S.W.3d 63, 68 (Ky. 2004).
The
trial court concluded that Patterson’s and Bennett’s charges
were so intertwined that there was a strong likelihood that she
would be unfairly prejudiced by the improperly introduced
evidence.
Under the circumstances, the trial court reasonably
found that an admonition to the jury would not have cured the
effect of the error.
(Ky. 1999).
Mills v. Commonwealth, 996 S.W.2d 473, 485
Therefore, the trial court acted within its
discretion in finding that there was a manifest necessity
warranting a mistrial as to both defendants.
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Accordingly, the judgments of conviction by the
Jefferson Circuit Court are affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANTS:
BRIEFS FOR APPELLEES:
Daniel T. Goyette
Louisville Metro Public
Defender
Gregory D. Stumbo
Attorney General of Kentucky
J. David Niehaus
Deputy Appellate Defender
Louisville, KY
Courtney J. Hightower
Assistant Attorney General
Frankfort, KY
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