CLEARY (EVELYN STACY) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: OCTOBER 31, 2008; 10:00 A. M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
ON REMAND FROM THE KENTUCKY SUPREME COURT
APPEAL FROM KNOTT CIRCUIT COURT
HONORABLE JOSEPH F. BAMBERGER, JUDGE
ACTION NO. 04-CR-00023
COMMONWEALTH OF KENTUCKY
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BEFORE: MOORE, STUMBO, AND VANMETER, JUDGES.
VANMETER, JUDGE: This case is on remand from the Kentucky Supreme Court
which granted discretionary review, vacated the Court of Appeals’ opinion, and
remanded to this court for further consideration in light of Shane v.
Commonwealth, 243 S.W.3d 336 (Ky. 2008).
Evelyn Cleary was convicted of first-degree trafficking in a
controlled substance (oxycodone). She was sentenced to five years’ imprisonment.
Cleary raises three claims of reversible error: the trial court abused its discretion
by overruling an objection and denying a motion for mistrial following a statement
about prior complaints against Cleary; the trial court abused its discretion by
denying motions to strike three jurors for cause; and the trial court incorrectly
excluded as evidence a photograph taken of Cleary’s house and property. Having
reviewed the record and the law, we affirm with respect to all issues.
On February 18, 2002, Kentucky State Police troopers Chris Fugate
and Richard Miller were patrolling in Knott County. While the parties disagree
somewhat, the relevant facts appear to be that as the troopers drove past Cleary’s
residence, they saw Cleary walk toward Janice Mosley, who was sitting in her
pickup truck parked in Cleary’s driveway. The troopers decided to investigate the
situation, as the area was known for high amounts of drug trafficking, and they
pulled into the driveway. According to the Commonwealth, Cleary’s hands were
resting on the door of the truck, partially inside the open window and she appeared
to drop something in the truck as the officers exited their car.
Trooper Miller questioned Mosley, who admitted that she had two
partially-smoked marijuana cigarettes in her ashtray. In the course of seizing the
marijuana Miller noticed a tablet, later identified as OxyContin,1 on the floorboard
of the truck. Mosley then admitted that she had come to Cleary’s residence to
OxyContin is a brand name for a tablet containing oxycodone. See
purchase the tablet for $50, which she showed the officer. Cleary, by contrast,
later claimed that Mosley already had the OxyContin tablet and was asking where
she could obtain more.
While Trooper Miller and Mosley were talking outside the house,
Trooper Fugate spoke with Cleary and her husband inside the house. Both denied
any involvement with drugs. Trooper Miller then entered the house with the tablet,
and the officers searched the house with Mr. Cleary’s consent. Although the
officers found no other contraband, they arrested Cleary and charged her with
trafficking in a controlled substance.
Cleary subsequently was indicted, and a jury trial resulted in a
conviction. Cleary waived the penalty phase and accepted the Commonwealth’s
offer of five years’ imprisonment. From this conviction and sentence, she now
Cleary first argues that the trial court abused its discretion in
overruling her objection and motion for mistrial after Officer Fugate stated that he
had received prior complaints about Cleary. More specifically, Officer Fugate
testified as follows:
Prosecutor: I know it has been better than three years
ago, but to the best of your recollection, can you tell the
jury the substance of the conversation, or whatever you
did, when you were inside the defendant’s residence?
Officer Fugate: Well, we basically had, um, I told her
that we had received complaints on them for selling
controlled substance pills.
Defense Counsel: Objection. May we approach?
During this bench conference, Cleary’s counsel moved for a mistrial on the ground
that the defense had not been given notice that evidence of such prior bad acts
would be introduced. The prosecutor stated that this information was not what he
was trying to elicit from the witness, and that he had not been aware of any prior
complaints. The judge overruled the motion for a mistrial but admonished the jury,
The witness testified to a couple of things. One is that
they were in the area because they had complaints – I
think it was – about drug trafficking in the area . . . . But
the jury should disregard the subsequent statement
relative to complaints about the defendant. You need to
put that out of your mind. Mr. Marshall [Prosecutor]
made reference in voir dire to the Rules of Evidence, and
that’s contrary to the Rules of Evidence.
Under KRE2 404(b), evidence of other crimes, wrongs or acts is
admissible only under limited circumstances. Cleary bases her argument on KRE
404(c), which states:
In a criminal case, if the prosecution intends to introduce
evidence pursuant to subdivision (b) of this rule as a part
of its case in chief, it shall give reasonable pretrial notice
to the defendant of its intention to offer such evidence.
Upon failure of the prosecution to give such notice the
court may exclude the evidence offered under
subdivision (b) or for good cause shown may excuse the
failure to give such notice and grant the defendant a
continuance or such other remedy as is necessary to
avoid unfair prejudice caused by such failure.
Kentucky Rules of Evidence.
Here, the testimony apparently was elicited accidentally in the course
of the Commonwealth’s questioning and was an isolated occurrence. As the
prosecutor evidently was unaware of the complaints mentioned by the officer, he
had no duty to give prior notice of the testimony. In any event, the trial court
promptly and appropriately admonished the jury to disregard the testimony.
In Matthews v. Commonwealth, 163 S.W.3d 11, 17-18 (Ky. 2005), the
supreme court stated:
We have long held that an admonition is usually
sufficient to cure an erroneous admission of evidence,
and there is a presumption that the jury will heed such an
admonition. A trial court only declares a mistrial if a
harmful event is of such magnitude that a litigant would
be denied a fair and impartial trial and the prejudicial
effect could be removed in no other way. Stated
differently, the court must find a manifest, urgent, or real
necessity for a mistrial. The trial court has broad
discretion in determining when such a necessity exists
because the trial judge is “best situated intelligently to
make such a decision.” The trial court’s decision to deny
a motion for a mistrial should not be disturbed absent an
abuse of discretion.
. . . We noted in Phillips v. Commonwealth that
“[w]here evidence of other crimes is introduced into
evidence through the non-responsive answer of a witness,
this court must look at all of the evidence and determine
whether the defendant has been unduly prejudiced by that
isolated statement.” In Phillips, a First-Degree Rape
trial, the victim gave unsolicited testimony that informed
the jury that Phillips had previously escaped from prison.
Phillips objected and moved for a mistrial, and although
the trial court found the statement inadmissible, it refused
to declare a mistrial. On appeal, we affirmed the order of
the trial court because we did not believe, “in view of all
of the evidence presented by the Commonwealth, that
Phillips was unduly prejudiced” by the victim’s
(Citations omitted.) Here, in view of all the evidence, the trial court’s admonition
concerning a single, isolated bit of improper testimony was sufficient to cure its
erroneous admission. The court did not abuse its discretion by denying the motion
for a mistrial.
We are not persuaded by Cleary’s argument that a different result is
required by Gordon v. Commonwealth, 916 S.W.2d 176 (Ky. 1995). During
Gordon’s trial for first-degree trafficking in a controlled substance, the
investigating officer testified that in the course of conducting a county-wide
investigation, he developed cause to suspect Gordon of drug trafficking. Thus, the
officer placed under surveillance the particular street corner from which the police
suspected Gordon of selling drugs. The Kentucky Supreme Court found that the
trial court properly admitted the officer’s testimony that Gordon was a suspect in a
county-wide investigation, as such testimony avoided any implication that he had
been unfairly targeted, and it explained why the police gave an informant a
recording device and money for a controlled buy. However, the trial court erred by
admitting testimony implying that Gordon was a drug dealer or that police
suspected him of selling drugs at that particular location, as such evidence was
“utterly unnecessary and prejudicial.” Id. at 179. Gordon does not control the
matter before us, however, as not only are the facts of the instant proceeding much
less egregious than those in Gordon, but the trial court below in fact sustained
Cleary’s objection to the improper evidence and admonished the jurors to put the
evidence out of their minds.
Cleary next argues that the trial court committed reversible error in
denying her motions to strike three jurors for cause. We note that the
determination “to excuse a juror for cause lies within the sound discretion of the
trial court and is reviewed only for a clear abuse of discretion.” Soto v.
Commonwealth, 139 S.W.3d 827, 848 (Ky. 2004). In Wood v. Commonwealth,
178 S.W.3d 500, 515-16 (Ky. 2005), the court noted the rationale behind this rule
is that “[t]he trial court has the opportunity to observe the demeanor of a
prospective juror, and therefore is in the best position to interpret the substance and
nature of that person’s responses to voir dire questioning.” Further, “[t]he central
inquiry is whether a prospective juror can conform his or her views to the
requirements of the law, and render a fair and impartial verdict based solely on the
evidence presented at trial.” Id. at 516. On the other hand, case law recognizes
that some relationships are so close that, irrespective of voir dire answers, the court
should presume bias and excuse the juror. Montgomery v. Commonwealth, 819
S.W.2d 713, 717 (Ky. 1991) (citing Marsch v. Commonwealth, 743 S.W.2d 830
(Ky. 1988), and Ward v. Commonwealth, 695 S.W.2d 404 (Ky. 1985)).
In this case, after the trial court denied Cleary’s motion to strike the
three prospective jurors for cause, Cleary used three of her peremptory strikes so
that they did not serve on the jury. As recently noted by the Kentucky Supreme
Court, the use of peremptory strikes is a substantial right. Shane v.
Commonwealth, 243 S.W.3d 336, 341 (Ky. 2007). Thus, if a defendant is forced to
remove a juror who should have been removed for cause, the defendant’s rights are
violated. Id. at 341. We therefore must decide whether the trial court abused its
discretion in failing to strike for cause any of the three jurors.
The jurors in question below were M.B., the wife of a bailiff at the
Knott County courthouse and the sister-in-law of the local sheriff; D.T., a retired
Indiana police officer; and R.P., a nursing home employee. M.B. and D.T. both
stated they could consider the evidence and be fair. Cleary, nevertheless, argues
that they should have been excused for cause because their respective ties to law
enforcement created a “reasonable ground to believe that [they could not] render a
fair and impartial verdict on the evidence[.]” RCr3 9.36(1).
The Kentucky Supreme Court, however, has not adopted a per se
exclusion of jurors due to connection to law enforcement agencies or personnel.
See Soto, 139 S.W.3d at 848-50 (no error in failing to strike for cause juror whose
daughter and son-in-law were police officers); Sanders v. Commonwealth, 801
S.W.2d 665, 670 (Ky. 1990) (fact that potential juror was law enforcement officer
“was not sufficient reason to excuse him for cause”); Smith v. Commonwealth, 734
S.W.2d 437, 445 (Ky. 1987) (no error in failing to excuse deputy sheriff). In
Shane, by contrast, a prospective juror’s exclusion was required not because he
was a police officer, but because his statements during voir dire “that he was
‘absolutely’ pro-police and that he did not believe an officer would lie under oath
Kentucky Rules of Criminal Procedure.
clearly indicated that a defendant would have little or no chance of challenging an
officer’s testimony in this juror’s mind.” 243 S.W.3d at 338. The challenged
jurors below did not make comparable statements. We further note that the law
enforcement witnesses who testified in this case were officers with the Kentucky
State Police, rather than officers of the agencies with which either M.B. or D.T.
had family or employment connections. The trial court did not abuse its discretion
in denying Cleary’s motion to strike M.B. and D.T. for cause.
The third prospective juror, R.P., indicated that her stepson had a
problem with drugs, that she worked in a nursing home where some patients had
drug problems, and that she agreed with the statement that her negative experience
with drugs could unconsciously affect her decision. Nevertheless, she thought she
could be fair and would not be affected by her personal experiences. As noted by
the court in Wood, “[w]hen ruling on a challenge for cause, it is the probability of
bias or prejudice that is determinative.” 178 S.W.3d at 517 (citing Montgomery,
819 S.W.2d at 718). Having reviewed the record and the totality of R.P.’s
responses, we do not believe her answers demonstrated the probability of bias or
prejudice. Therefore, the trial court did not abuse its discretion in denying Cleary’s
motion to strike R.P. for cause.
Cleary’s final argument is that the trial court erred by excluding from
evidence a photograph depicting her house and surrounding property. We
Part of Cleary’s defense was that because hills and trees partially
shielded her house from the road, the police could not have seen her exit the house
and walk toward the truck. The Commonwealth objected and the trial court agreed
that a photograph, taken two weeks before trial in June 2005, was inadmissible as
it did not accurately depict the scene at the time of Cleary’s arrest in February
Cleary argues that the passage of time and the difference in seasonal
plant growth could have been explained to the jury when the photograph was
introduced into evidence. Indeed, the “mere fact that a photograph was taken at a
time different from the date of the incident in question does not render it
inadmissible if it can be established as a substantial representation of the
conditions as they then existed.” Turpin v. Commonwealth, 352 S.W.2d 66, 67
(Ky. 1961). However, in this case, the vegetation shown in the photograph almost
completely obscures the house. Perhaps more importantly, Trooper Fugate stated
that the officers viewed the house and alleged transaction from an angle opposite
of the location from which the picture was taken.
Our review of the photograph confirms that viewing the scene from an
angle opposite to that used by the officers could have created a substantial danger
of confusing the jury as to whether the officers could have possibly seen Cleary.
KRE 403 states that “[a]lthough relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of undue prejudice,
The trial court permitted the photograph to be introduced into the record to preserve the issue
for appellate review.
confusion of the issues, or misleading the jury, or by considerations of undue
delay, or needless presentation of cumulative evidence.” As the photograph clearly
could have misled the jury, the trial court did not err by excluding it from evidence.
For the foregoing reasons, the Knott Circuit Court’s judgment is affirmed.
MOORE, JUDGE, CONCURS.
STUMBO, JUDGE, DISSENTS.
STUMBO, JUDGE, DISSENTING: Respectfully, I must dissent
from that portion of the majority opinion which finds no error in the refusal of the
trial court to strike a juror whose close ties to law enforcement should have
disqualified her. The juror in question was the wife of a bailiff at the courthouse
where the case was being tried and the sister-in-law of the local sheriff. While it is
true that, upon questioning, she stated that she could be fair and impartial in
deciding the case at bar, I believe that the “conditions may be such that [her]
connection would probably subconsciously affect [her] decision.” Randolph v.
Commonwealth, 716 S.W.2d 253, 255 (Ky. 1986), overruled on other grounds by
Shannon v. Commonwealth, 767 S.W.2d 548 (Ky. 1988). The court there also said
“[i]t is always vital to the defendant in a criminal prosecution that doubt of
unfairness be resolved in his favor.” Id. at 255.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Samuel N. Potter
Assistant Public Advocate
Department of Public Advocacy
Gregory D. Stumbo
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General