DENZIL \"PECK\" PRICE V. COMMONWEALTH OF KENTUCKY
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2000-SC-02
DENZIL
V.
“PECK”
ON REVIEW FROM COURT OF APPEALS
98-CA-2549
CLAY CIRCUIT COURT NO. 96-CR-II
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE COOPER
AFFIRMING
Appellant, Denzil “Peck” Price, was convicted by a Clay Circuit Court jury of
assault in the first degree and sentenced to ten years in prison. The Court of Appeals
affirmed. We granted discretionary review to consider the propriety and/or the
prejudicial effect of a demonstration conducted during the prosecutor’s closing
argument in which the prosecutor and the victim reenacted the crime. Although we find
the demonstration to have been improper, we conclude that the trial judge did not
abuse his discretion in denying Appellant’s motion for a mistrial; thus, we also affirm.
On November 30, 1995, Russell Wolfe, a fish and wildlife officer with the
Kentucky Department of Fish and Wildlife Resources, was driving home in his official
state vehicle when he encountered a pickup truck being operated in a reckless manner.
Wolfe activated his blue emergency lights and gave pursuit, ultimately following the
pickup truck into Appellant’s driveway. The owner and operator of the pickup truck was
Earl Dean Fields. Appellant was riding as a passenger. Both were highly intoxicated.
Fields testified at trial that the two had consumed two “fifths” of vodka and an
undetermined quantity of beer that day. Since Appellant was already at his home,
Wolfe directed him to leave the scene and go into his house. Wolfe then used his twoway radio to inquire as to the status of Fields’s driver’s license. Meanwhile, Appellant
armed himself with a .410 caliber shotgun and returned to the driveway. When Wolfe
looked up from his radio, Appellant was standing approximately three feet away with the
barrel of the shotgun aimed directly at his (Wolfe’s) forehead. Wolfe testified that he
instinctively grabbed the barrel of the shotgun with his left hand and pushed it down
away from his head. When he did so, Appellant pulled the trigger and shot Wolfe in the
right thigh. Though he described the incident during his testimony, Wolfe did not
attempt to demonstrate or otherwise reenact the crime. In fact, the shotgun was not
introduced into evidence until after Wolfe testified.
Fields testified that he did not see Appellant point the gun at Wolfe but did see
Appellant and Wolfe struggling over the weapon before the shot was fired. Appellant
did not testify, but the jury heard an audiotaped statement he made to a state police
detective shortly after the shooting. In that statement, Appellant admitted that he would
have shot Wolfe in the head had Wolfe not grabbed the gun. The jury was instructed
on assault in the first degree, i.e, intentionally causing serious physical injury by means
of a deadly weapon, KRS 508.010(l)(a), but not on assault in the second degree, i.e.,
wantonly causing serious physical injury by means of a deadly weapon, KRS
508.020(1)(c). During closing argument, defense counsel argued that despite
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Appellant’s drunken statement to the police detective, the shooting may have been
accidental and might not have occurred had Wolfe not grabbed the gun.
Wolfe sat at the prosecutor’s counsel table during the entire trial, including
closing arguments. A review of the trial videotape reveals that, during the course of his
closing argument, the prosecutor picked up the shotgun, pointed it directly at Wolfe’s
head from the stated distance of about three feet, and remarked: ‘As he tells you,
Officer Wolfe tells you, when he gets back, what does he see? Three feet away from
him?” At this point, Wolfe, as if in slow motion, raised his left hand above his head,
then returned it to his side. The prosecutor continued: “What is he to do?” Wolfe,
again as if in slow motion, raised his left hand above his head. The prosecutor
continued: “Now, Officer Wolfe, you stand right there while I shoot you in the head.”
As this statement was made, Wolfe placed his left hand on the barrel of the shotgun
and pulled it down toward his right thigh, thus completing the reenactment of the crime.
The prosecutor concluded: “He does what anybody else does. He jerked it. What was
he to do?”
Defense counsel immediately objected and moved for a mistrial. At a hearing in
chambers, both Wolfe and the prosecutor vehemently denied that the demonstration
was pre-planned, though Wolfe stated in response to an inquiry from the trial judge that
he did not know whether his act of grabbing the gun was voluntary or involuntary. The
trial judge overruled the motion for a mistrial and admonished the jury to disregard the
demonstration.
Wolfe’s participation in the reenactment of the crime during the prosecutor’s
closing argument, whether planned or unplanned, was highly improper. Case law on
this issue is, thankfully, sparse. In CUDD v Commonwealth, 87 Ky. 35, 7 S.W. 405
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(1888) it was held reversible error for the prosecutor to call the victim of an assault
before the jury and, putting his hands on the face of the victim, say: “Gentlemen, look
at that scar on his face. Is that worth only fifty dollars?” And in Stacy v. Williams, 253
Ky. 353, 69 S.W.2d 697, 707 (1934), it was held improper to permit a personal injury
damages plaintiff to exhibit his injured leg to the jury while his attorney referred to and
commented on it during closing argument. Closer to what occurred here is the case of
Robinson v. Kathryn, 161 N.E.2d 477 (Ill. App. Ct. 1959) wherein a plaintiff who had
been injured in a motorcycle accident was permitted to demonstrate, during his
attorney’s closing argument, the manner in which he was seated and would be driving
the motorcycle, where his arms would be located, and how his arms would be affected
by the approach of the defendants vehicle.
While it would have been proper for attorney for plaintiff to have
seated himself in a chair with his arms akimbo, in typical motorcycle driver
style, and to have used any reasonable technique to demonstrate such
physical fact, the employment of his client in this fashion amounted to a
use of demonstrative evidence which was clearly improper and afforded
no opportunity for cross examination, defense or reply. The place for
demonstrative evidence and the time for demonstrative evidence is during
the course of the trial and prior to final argument. Final argument may
properly employ demonstrations by the attorney, if such demonstrations
are reasonably sustained by the evidence, but the technique of using the
injured plaintiff in a visual demonstration requiring movement and activity
on his part would open the door to strange and completely unsound
demonstrations which in the end would defeat the ends of justice for all
litigants.
Id. at 479.
Nevertheless, it has long been the law in Kentucky that an admonition to the jury
to disregard an improper argument cures the error unless it appears the argument was
so prejudicial, under the circumstances of the case, that an admonition could not cure
it. Knuckles v. Commonwealth, Ky., 261 S.W.2d 667, 671 (1953); Thomas v.
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Commonwealth, 196 Ky. 539, 245 S.W. 164, 166 (1922). Here, both Appellant and
Wolfe agreed that Appellant pointed the shotgun at Wolfe’s head, that Wolfe grabbed
the barrel and pulled it down away from his head, and that Appellant shot Wolfe in the
right thigh. The only issue in dispute was Appellant’s mens rea at the time the shot was
fired, and the demonstration neither proved nor disproved the necessary element of
intent. Thus, the improper demonstration was cured by the trial judge’s admonition and
does not require reversal for a new trial.
The only other issue raised on appeal pertains to a motion for a new trial
predicated upon an alleged incompetent juror. Juror No. 57, who sat as a juror on the
case, had indicated on her juror qualification form that she was “mentally unstable” and
had attached a letter from her psychiatrist who opined that she was “too unstable
emotionally at this time to perform juror duties.” However, Appellant did not ask that
Juror No. 57 be excused for cause, nor could this information be deemed newly
discovered evidence, since Appellant’s attorney had Juror No. 57’s qualification form in
his possession at the time he exercised his peremptory strikes. Except on grounds of
newly discovered evidence, a motion for a new trial must be served within five days
after the return of the verdict. RCr 10.06(l); Johnson v. Commonwealth, Ky., 17
S.W.3d 109, 112 (2000). Appellant’s motion was served nine days after the return of
the verdict; thus, it was not timely served and was properly overruled.
Accordingly, the judgment of conviction and sentence imposed by the Clay
Circuit Court, and the opinion of the Court of Appeals, are affirmed.
Lambert, C.J.; Johnstone, Stumbo and Wintersheimer, JJ., concur. Keller, J.,
concurs by separate opinion with Graves, J., joining that concurring opinion.
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COUNSEL FOR APPELLANT:
Mark Wettle
1916 Kentucky Home Life Building
239 South Fifth Street
Louisville, KY 40202
COUNSEL FOR APPELLEE:
A. B. Chandler, III
Attorney General
State Capitol
Frankfort, KY 40601
Matthew D. Nelson
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
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RENDERED: NOVEMBER 21,200l
TO BE PUBLISHED
2000-SC-02 13-DG
DENZIL “PECK” PRICE
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
98-CA-2549
CLAY CIRCUIT COURT NO. 96-CR-11
COMMONWEALTH OF KENTUCKY
APPELLEE
CONCURRING OPINION BY JUSTICE KELLER
Although I concur in the result reached by the majority, I disagree with its
conclusion that “Wolfe’s participation in the reenactment of the crime during the
prosecutor’s closing argument, whether planned or unplanned, was highly improper.“’
In my opinion, the latitude we grant to attorneys in closing argument* should allow
demonstrations that illustrate evidence previously introduced at trial or reasonable
inferences drawn from that evidence regardless of whether the prosecution’s
complaining witness participates in the demonstration. While I recognize that closing
argument demonstrations which do not illustrate prior evidence and instead attempt to
introduce new demonstrative evidence are improper, the demonstration in this case
clearly illustrated rather than presented evidence. I believe trial courts occupy the best
‘Majority Opinion at - S.W.3d
,
(2OOJ.
*a Bowling v. Commonwealth, Ky., 873 S.W.2d 175, 178-179 (1993); Williams
v. Commonwealth, Ky., 644 S.W.2d 335, 338 (1982).
position to assess whether demonstrations risk prejudice, and this Court should review
their determinations for abuse of discretion. Although I believe the trial court in this
case acted within its discretion when it admonished the jury to disregard this
demonstration, I see nothing inherently improper about it, and I fear that today’s
majority may discourage the use of permissible demonstration during closing argument.
Perhaps my most basic concern with the majority opinion is that it, by failing to
outline any criteria upon which trial courts can assess the propriety of closing argument
demonstrations, appears to condemn all such demonstrations, or at least those in
which the complaining witness participates. I believe this represents a departure from
existing case law in which this Court and its predecessor have found the dispositive
question to be whether the demonstration adhered to trial evidence and reasonable
inferences therefrom.
In Cupp v. Commonwealth,3 the Court emphasized the order of proceedings
when it found improper the Commonwealth’s displaying of the scarred victim during
closing argument: “The Criminal Code, in order to procure fair trials, prescribes the
mode and order in which testimony may be given to jury, and courts cannot afford to
permit a departure therefrom when the object and effect is to give to either party an
undue advantage of the other.‘14
Twenty-five years later, in Balee v. Commonwealth,’
the Court referenced the Cupp decision and again emphasized the need to separate
argument from evidence:
387 Ky. 35, 7 S.W. 405 (1888).
41d. at 407.
‘153 Ky. 558, 156 S.W.147 (1913).
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In his closing argument to the jury the Commonwealth
attorney called the defendant and had the defendant to
stand up before the jury by the side of the prosecuting
witness, Horace Kelley, to which the defendant at the time
objected; and his objection being overruled by the court, he
excepted. It is insisted that this was erroneous and very
prejudicial to the defendant for the very reason that when
they were not standing together, it was not easy to say which
was the larger of the two. The Code of Practice provides
that the Commonwealth attorney after the statement of the
case against the defendant must then offer the evidence in
support of the indictment . . . . It is imoortant to the
defendant that all the evidence which is to be offered aaainst
him shall be offered before the argument of his counsel is
made: and it mav be very prejudicial to him to allow any
additional evidence after his counsel has araued his case to
the jury on the evidence that is before the jury. In Cupp v.
Corn., after the argument to the jury for the defendant had
closed and that attorney for the Commonwealth had begun
his argument, he had the prosecutor to come around where
he was and when he had done so, the attorney put his
hands on the face of the prosecutor and said to the jury,
“Gentlemen, look at the scar on his face. Is that worth only
$50?” . . . .
The error in this case was more prejudicial and serious
than in the case cited; for here perhaps the most convincinq
evidence was aiven after the araument of his case bv his
counsel to the iur-v, and the whole question was one of
identity.6
In Huber & Huber Motor Express v. Martin’s Administrator,7 a case that involves
an issue factually similar to,* and interprets9 the authority cited by the majority, Stacy v.
61d. at 560-561 (citations omitted and emphasis added).
7265 Ky. 228, 96 S.W.2d 595 (1936).
‘See Id. at 234 (“One of the statements of. . . counsel to which they objected
reads: ‘Come around, John, and roll up your pant leg, and show the jury your leg.’
Martin, thereupon, as the record discloses, appeared before the jury, rolled up his pant
leg and exposed to the view of the jury his injured leg.“).
91d. at 235.
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Williams,‘0 the Court emphasized the trial court’s prime position to assess whether the
demonstration prejudiced the defense: “The court knew whether his client had already
exhibited it to the jury and whether his counsel calling for him and having him re-expose
it was only a repetition of evidence already introduced.“”
In Ramev v. Ruth,12 the Court saw nothing improper in trial counsel’s illustration
of the evidence in an automobile accident case with model cars and a blackboard with
the accident scene drawn upon it because his demonstration was based in the record:
[Dluring his final argument to the jury counsel for
appellees produced a blackboard of his own which had
theretofore not been used during the trial, placed toy
automobiles upon the board (which contained a drawing of
the curve in the roadway depicting the scene of the accident)
and used them during the course of his argument. It was
claimed that it wholly misrepresented the evidence in the
case. However. there was no showina made either in the
record or in the brief for aooellants in what manner counsel
alleaedlv deoarted from the evidence which had been aiven
and anv reasonable inferences which miaht be drawn
therefrom. . . . [T]his was a magnetized board along which
the automobiles could be moved easily and thus counsel
could give his interpretation of what actually happened at the
scene of the accident. We find nothing that shows he
departed from the usual practice of using a blackboard or
other device to help illustrate an argument. The board may
have been novel and improved, but we find nothina wronq
so lona as counsel adhered to the evidence and reasonable
inferences. If he departed from that course, it does not
appear of record.13
“253 Ky. 353,69 S.W.2d 697 (1934).
“Huber & Huber Motor Express v. Martin’s Administrator, supra note 7 at 598.
“KY., 376 S.W.2d 292 (1964).
131d. at 294.
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In Smith v. Commonwealth,‘4 we found no error when the Commonwealth,
during its opening argument, conducted a demonstration involving a firearm which was
consistent with the evidence later admitted: “The opening statement by the prosecution,
. . . and the sun demonstration included in it, only directed the attention of the jury to
the evidence which he expected to prove through the testimony. The explanation of the
incident and the demonstration were ultimately supported by the testimony . . . .“I5 And,
in Waaer v. Commonwealth,” we again emphasized that permissible closing argument
demonstrations must relate to evidence already in the record when we reversed the
appellant’s conviction:
The Commonwealth’s attorney told the jury that he had
driven past an old fence on the way to the courthouse, and
watched a man pull a post from the ground. As the post had
brambles growing on it, one could not avoid being scratched
removing the post in this way. This was in reference to
Matthews’ claim that the suspicious scratches found on his
chest were caused by brambles on fence posts and not
fingernails. Not only did the Commonwealth’s attorney
discuss the brambly fence post, but he brought a portion of
the bramble-covered fencepost into the courtroom as a
demonstration to the jury. Although prosecutors have been
consistently granted wide latitude by this court in opening
and closing arguments, certain behavior exceeds the
bounds of what is acceptable and enters the realm of
prejudicial error. The Commonwealth’s attorney went
beyond the evidence presented, and pursued another
agenda, quite apart from the legal constraints of the case at
hand. Althouah the Commonwealth claims that the
fencebost was merely a reasonable inference drawn from
the evidence, we do not aaree. . . .17
14Ky., 734 S.W.2d 437 (1987).
“ld. at 448 (emphasis added).
16Ky., 7 5 1 S.W.2d 28 (1988).
171d. at 30-31 (citation omitted and emphasis added).
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I would also note that courts in other jurisdictions have found no abuse of
discretion when trial courts have permitted closing argument demonstrations supported
by the evidence,” and have applied the same standard when the complaining witness
*‘See State v. Ash, 526 N.W.2d 473, 483 (N.D. 1995) (“The demonstration was
nothing more than a vivid visual summarization of the State’s view of a large body of
evidence that depicted an execution-style killing.“); Gilbert v. State, 951 P.2d 98
(Okla.Crim.App. 1997) (demonstration with firearm); State v. Dowds, 625 N.E.2d 878,
878-880 (III.App. 1993) (“[Tlhe prosecutor’s demonstration merely showed the jury what
seven beers looked like when poured into a container, testimony the jury had already
heard from defendant about how he had poured seven beers into a ‘different container’
- namely, himself.“); State v. Bush, 430 N.E.2d 514, 521-522 (III.App. 1981):
During the State’s closing argument, the prosecutor
conducted a physical demonstration using the same model
to show the position of the victim’s body. This
demonstration was based on a photographic exhibit
introduced at trial and was apparently intended to
demonstrate that the defendant could not have turned over
Ms. Durbin’s body as he had testified he had done. . . .
Admission of demonstrative evidence is a matter within the
discretion of the trial court. In the instant case we find no
abuse of discretion because Ethel demonstrationfl [was]
based on evidence admitted at trial.
(citations omitted and emphasis added); State v. Kroll, 558 P.2d 173, 185 (Wash.
1976):
In final argument the State was allowed to conduct a
demonstration in which one man sat astride another, the
purpose of which was to demonstrate how the defendant
might have sat on the victim, holding her arms and leaving
the marks found thereon. The court restricted the matter to
a simple showing of position, and cautioned the jury that the
demonstration was not evidence. The evidence from the
pathologist indicated that the defendant’s boots could have
caused the marks as indicated. The demonstration merely
showed the jury the manner in which it could have been
physically accomplished.
Argument of counsel is limited to the evidence and to fair
and reasonable deductions to be drawn therefrom. We find
no abuse of discretion in allowina the orosecutor to
demonstrate a reasonable inference from the evidence.
(continued.. .)
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or victim participates in the demonstration.‘g
I can find no warrant in the majority opinion for adopting a blanket rule excluding
complaining witnesses from participating in otherwise permissible closing argument
demonstrations, and I believe our previous opinions have found error in victimparticipation closing argument demonstration cases not because of who participated in
the demonstrations, but because those demonstrations strayed from the record and
thereby introduced new evidence.
Trial courts should always scrutinize demonstrations
during closing argument to prevent the introduction of new evidence, and I believe that
they can avoid prejudice - regardless of who participates in the demonstration - by
limiting demonstrations during closing arguments to those that illustrate the evidence or
reasonable inferences therefrom Here, the demonstration conducted during closing
argument mirrored exactly the sworn testimony given by the complaining witness, and I
see nothing inherently improper about it.
Graves, J., joins this concurring opinion.
18(...continued)
(citations omitted and emphasis added). Collins v. State, 561 P.2d 1373, 1380-1381
(Okla.Crim.App. 1977) (approving demonstration and relying extensively upon a turn-ofthe-last-century published, but “not to be officially reported,” see CR 76.28(4)(c),
Kentucky decision - Herron v. Commonwealth, 23 Ky. 782, 64 S.W. 432 (1901)).
19a State v. Madry, 529 P.2d 463,466 (Wash.App. 1974).
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