DENZIL \"PECK\" PRICE v. COMMONWEALTH OF KENTUCKY
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RENDERED: February 4, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002549-MR
DENZIL "PECK" PRICE
APPELLANT
APPEAL FROM CLAY CIRCUIT COURT
HONORABLE R. CLETUS MARICLE, JUDGE
ACTION NO. 96-CR-00011
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, DYCHE, and McANULTY, Judges.
COMBS, JUDGE:
The appellant, Denzil Price (Price), appeals from
the judgment of Clay Circuit Court convicting him of first degree
assault and sentencing him to ten-years' imprisonment.
Finding
no error, we affirm the judgment of the circuit court.
On November 30, 1995, while driving home from work in
his state vehicle, State Fish and Wildlife Officer Russell Wolfe
observed a vehicle being driven in a reckless and suspicious
manner.
Suspecting that the driver might be intoxicated, Officer
Wolfe turned around and followed the truck, which had pulled into
Price's driveway.
Officer Wolfe asked the driver to exit the
truck and step to the back of the vehicle; he told Price, who had
been a passenger in the truck, to go inside the house.
As
Officer Wolfe was using the radio in his car, Price came outside
with a shotgun, which he aimed at Wolfe's head.
The gun fired as
Wolfe grabbed the barrel of the gun and pushed it down, shooting
him in the leg.
Price retreated inside his house while Officer
Wolfe radioed for assistance.
On February 1, 1996, the Clay County Grand Jury
indicted Price for assault in the first degree.
A trial was held
on January 20 and 21, 1998, and the jury found Price guilty as
charged and recommended that he be sentenced to ten years’
imprisonment.
Subsequently, on January 30, 1998, Price filed a
motion pursuant to RCr 10.06 for a new trial on the ground of
newly discovered evidence.
He asserted that one of jurors, Juror
No. 57, had been incompetent to serve as juror because she was
“mentally unstable.”
After conducting a hearing on the motion,
the court found that the juror in question was competent and
denied Price’s motion for a new trial.
On September 9,1998, the
court entered final judgment, following the jury’s recommendation
and sentencing Price to ten-years’ imprisonment for assault in
the first degree.
This appeal followed.
Price first argues that the court erred in denying his
motion for new trial.
He contends that he was denied a fair
trial because Juror No. 57 was not competent to serve as a juror.
On the juror qualification form, Juror No. 57 indicated that she
was “mentally unstable” and, approximately a week before trial,
her mother submitted a letter to the judge’s secretary from her
doctor, stating that she was too emotionally unstable to perform
the duties of a juror.
The Commonwealth asserts that Price’s
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motion was untimely as it was not served within five days of the
return of the verdict as mandated by RCr 10.06.
Price maintained
that his motion was based upon newly discovered evidence and
that, therefore, it was timely.
RCr 10.06(1) states:
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 permits.
A new trial is not warranted when the "newly discovered
evidence" is cumulative or merely impeaching in nature.
v. Commonwealth, Ky., 809 S.W.2D 835 (1990).
Epperson
It “must be of such
decisive value or force that it would with reasonable certainty,
change the verdict or . . . probably change the result if a new
trial should be granted."
752, 754 (1967).
Coots v. Commonwealth, Ky., 418 S.W.2D
Moreover, the movant must show that he or she
exercised sufficient due diligence to obtain the evidence prior
to trial.
Wheeler v. Commonwealth, Ky., 395 S.W.2D 569(1965).
It is undisputed that Price’s motion for a new trial
was not served within five days.
Price nonetheless contends that
his motion is timely because it is based upon the alternate
ground of newly discovered evidence.
However, the record shows
that at the hearing on his motion, defense counsel admitted that
he had received the qualification form from Juror No. 57 and that
he had it in his possession during the period when he was
deciding how to exercise his peremptory strikes.
He admitted
that he did not read all of the juror qualification forms because
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he did not have sufficient time; he did not request any
additional time in order to do so, and apparently he did not
discover the pertinent information form until more than five days
following completion of the trial.
We find that Price’s motion for a new trial was not
timely served.
Although he asserts that his motion is based upon
newly discovered evidence, the record clearly establishes that
Juror No. 57 indicated on her qualification form that she was
“mentally unstable” and that defense counsel had a copy of that
qualification form.
Information regarding Juror No. 57 could
have been discovered prior to trial and before the impaneling of
the jury.
At the very latest, it could have been discovered
prior to the passage of five days following the trial.
Additionally, we note that despite the fact that
Price’s motion was untimely, the court denied his motion on its
merits.
After an examination in chambers of Juror No. 57 and of
her mother, the trial court specifically found that she had the
mental capacity to serve as a juror.
We can find no grounds that
would entitle Price to a new trial.
Price next argues that he was unfairly prejudiced by
an improper demonstration (reminiscent of a "re-enactment")
during the Commonwealth’s closing argument.
During his closing
argument, the prosecutor for the Commonwealth picked up the
shotgun, which had been previously introduced and admitted into
evidence as the gun with which Officer Wolfe had been shot.
He
pointed it at Officer Wolfe, who was seated at the end of the
prosecution’s table.
The prosecutor was standing only a few feet
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away from Wolfe, and Wolfe reached up and pushed the gun down and
away from his face.
requested a mistrial.
Defense counsel immediately objected and
After conducting a brief hearing in
chambers, the trial judge decided to take the matter under
further consideration and to hold another hearing after the case
had been submitted to the jury.
The trial judge admonished the
jury to disregard the prosecutor’s demonstration, and the
prosecutor was allowed to finish his closing argument.
The case was submitted to the jury, and the court held
another hearing on Price’s motion for a mistrial based upon
prosecutor’s conduct during closing argument.
The prosecutor
stated that the incident was spontaneous rather than a planned
demonstration; Officer Wolfe also testified that the
demonstration was not planned and that his pushing the gun away
from his head had been a reflex developed through years of
training as police officer.
The court found that the
demonstration had not been planned and that his admonition to the
jury sufficed to cure whatever error or defect that may have
resulted from the incident.
“It is ordinarily presumed that an admonition controls
the jury and removes the prejudice which brought about the
admonition.”
(1993).
Clay v. Commonwealth, Ky. App., 867 S.W.2D 200, 204
A mistrial should be granted only where the record
reveals “a manifest necessity for such an action or an urgent
real necessity.”
678 (1985).
Skaggs v. Commonwealth, Ky., 694 S.W.2D 672,
In this case, the court promptly and properly
admonished the jury not to consider the incident between the
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prosecutor and Officer Wolfe as evidence, stating that “closing
arguments are strictly for counsel to make.”
We find that Price
has not overcome the presumption that the admonition cured any
resulting prejudice.
Whether to declare a mistrial is a matter
that is within the sound discretion of the trial court, and its
decision should not be disturbed absent an abuse of discretion.
Jones v. Commonwealth, Ky. App., 662 S.W.2D 483 (1983).
We do
not find the circumstances of this case to be so inflammatory
that the court’s refusal to grant a mistrial amounted to an abuse
of discretion.
We therefore affirm the judgment of the Clay Circuit
Court.
DYCHE, JUDGE, CONCURS IN RESULT.
McANULTY, JUDGE, DISSENTS BY SEPARATE OPINION.
McANULTY, JUDGE, DISSENTING: Respectfully, I dissent.
In order to believe the prosecutor’s position that the gun
display was spontaneous, one would have to believe that without
knowing whether the shotgun was loaded or not, he pointed same at
the head of the victim in a courtroom.
Whether a planned
demonstration or not, the error clearly supports retrial.
As our highest Court has stated, “Representatives of
the Commonwealth in arguing the facts should confine themselves
to the evidence coming from the witness stand.”
Davenport v.
Commonwealth, 285 Ky. 628, 148 S.W.2d 1054 (1941).
While it is a
recognized principle that prosecutors should be granted wide
latitude in closing arguments, the creation of testimony
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(intentional or unintentional) should not be countenanced.
I
would vacate and remand for a new trial.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Mark Wettle
Louisville, KY
Albert B. Chandler III
Attorney General of Kentucky
Matthew Nelson
Assistant Attorney General
Frankfort, KY
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