GUFFEY (PAMELA CATRON) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: MAY 14, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
PAMELA CATRON GUFFEY
APPEAL FROM CLINTON CIRCUIT COURT
HONORABLE EDDIE C. LOVELACE, JUDGE
ACTION NO. 07-CR-00063
COMMONWEALTH OF KENTUCKY
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BEFORE: VANMETER, ACTING CHIEF JUDGE; COMBS AND KELLER,
COMBS, JUDGE: Pamela Catron Guffey appeals from her conviction in Clinton
Circuit Court on the charge of first-degree trafficking in a controlled substance.
Guffey contends that she is entitled to a new trial. We disagree and affirm the
On November 17, 2006, Guffey sold two oxycodone/acetaminophen
tablets to Sharolyn Renee Cross, who was working with the Kentucky State Police
as a confidential informant. Evidence regarding the sale was presented to the
grand jury, and Guffey was indicted on March 2, 2007. The matter proceeded to
trial in which Guffey was convicted on October 26, 2007. She was sentenced by
the court to serve five-years’ imprisonment. This appeal followed.
Guffey argues that the trial court erred by denying her post-verdict
motion for a new trial. In her motion filed on November 5, 2007, Guffey
contended that she was entitled to relief because during voir dire, a juror had failed
to disclose that she (the juror) was related by marriage to the county attorney. In
his motion, counsel acknowledged that he had become aware that this juror was the
mother-in-law of the county attorney before the jury was charged and retired to
On appeal, the Commonwealth contends that Guffey’s allegation of
error is not properly preserved for our review for two reasons. First, the
Commonwealth argues that Guffey’s post-trial motion was filed out of time and, as
a consequence, should not have been addressed on its merits by the trial court.
Second, the Commonwealth argues that any objection to the juror’s participation
was waived since Guffey failed to advise the court of her concerns until after the
proceedings had finally concluded. By failing to raise a timely objection, the
Commonwealth contends that Guffey deprived the court of an opportunity to seat
one of its two alternate jurors, thus avoiding the alleged error.
Kentucky Rules[s] of Criminal Procedure 10.06(1) (RCr) provides as
The motion for a new trial shall be served not later than
five (5) days after return of the verdict. A motion for a
new trial based upon the ground of newly discovered
evidence shall be made within one (1) year after the entry
of the judgment or at a later time if the court for good
cause so permits.
Although a motion for a new trial based upon newly discovered evidence may be
filed within one year of the judgment, a motion based upon any other grounds
must be filed within five days of the verdict. Excluding intermediate Saturdays
and Sundays, Guffey’s post-verdict motion was not filed within five days of the
verdict. Since the verdict was returned on Friday, October 26, the five-day time
period began to run on Monday, October 29. The last day to file the motion in
compliance with RCr 10.06(1) was, therefore, Friday November 2. Because the
motion was filed too late to raise this issue, the court could not have properly
addressed it on the merits. Consequently, we decline to review the trial court’s
order denying the motion.
Alternatively, Guffey argues that she is entitled to a new trial because
the trial court erred by failing to declare a mistrial upon her motion. We disagree.
Sharolyn Cross, the confidential informant, was called by the
Commonwealth to testify at trial. On direct-examination, Cross gave a detailed
account of her purchase of two Percocet tablets from Guffey on November 17,
2006. During cross-examination, defense counsel attempted to show that Cross’s
testimony was inconsistent with the testimony of Albany Police Officer Jimmy
Garner. Garner testified that Cross and Guffey had arranged to meet for a drug
transaction on November 17. After Cross had been searched, wired, and supplied
with “buy money,” Garner and Kentucky State Police Detective Russell Decker
conducted a loose surveillance of the meeting place.
During her cross-examination, Cross told the jury that she had not
spoken with Guffey for several days before November 17 and that the two of them
had not discussed the number of pills that Cross would purchase. With reference
to the “buy money” supplied by Officer Garner, defense counsel asked Cross,
“How did you know how much money to give her [Guffey] when you got to the
house?” Cross replied, “Because I know what she sold them for. I’m not the only
person she sold them to.” Following Cross’s reply, defense counsel objected and
asked to approach the bench. Defense counsel contended that Guffey was entitled
to a mistrial based on Cross’s non-responsive, prejudicial comment to the jury.
The trial court reasoned that defense counsel had invited the response, and the
court denied the motion for a mistrial. Nevertheless, it vigorously admonished the
jury not to consider Cross’s final comment.
On appeal, Guffey contends that the trial court’s admonition to the
jury was insufficient to overcome the unfair prejudice that resulted from Cross’s
non-responsive, gratuitous reply. The Commonwealth argues that the trial court
did not err by concluding that defense counsel’s question invited the response that
Cross gave from the stand; therefore, the court did not err by refusing to order a
mistrial as there was no manifest necessity to declare one.
A trial court’s decision to deny a motion for mistrial will not be
disturbed absent an abuse of discretion. Maxie v. Commonwealth, 82 S.W.3d 860
(Ky. 2002). An admonition is often deemed to be a proper remedy in such an
instance. It is well-established that “[a] jury is presumed to follow an admonition
to disregard evidence and the admonition thus cures any error.” Johnson v.
Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003).
There are only two circumstances in which the
presumptive efficacy of an admonition falters: (1) when
there is an overwhelming probability that the jury will be
unable to follow the court’s admonition and there is a
strong likelihood that the effect of the inadmissible
evidence would be devastating to the defendant [citation
omitted]; or (2) when the question was asked without a
factual basis and was “inflammatory” or “highly
We are not persuaded that there is an overwhelming probability that
the jury was unable to follow the severe admonition given by the court or that
Cross’s comment was “devastating” to Guffey’s defense. The second factor
simply does not apply in this case. Therefore, under the Johnson criteria, there was
no manifest necessity for a mistrial. The trial court did not abuse its discretion by
denying the motion for a mistrial, and Guffey is not entitled to relief on this
We affirm the judgment of conviction of the Clinton Circuit Court.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Linda Roberts Horsman
Assistant Public Advocate
Attorney General of Kentucky
Julie Scott Jernigan
Assistant Attorney General