U DLr,111 D STEVEN BRAY V 02-C R-237 COMMONWEALTH OF KENTUCKY
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2003-SC-0656-MR
STEVEN BRAY
V
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APPELLANT
APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE DENNIS FOUST, JUDGE
02-C R-237
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE COOPER
AFFIRMING
In the early morning hours of November 8, 1982, a mobile home in Marshall
County, Kentucky, burned to the ground. Inside, police found the bodies of Audrey Bray
and her mother, Effie York, each with a gunshot wound to the head. Appellant, Steven
Bray, who was Audrey's husband and Effie's son-in-law, was charged with the crimes.
In August 1998, a Marshall Circuit Court jury convicted Appellant of two counts of
murder, KRS 507.020(1), and one count of arson in the first degree, KRS 513 .020, and
sentenced him to life in prison for each conviction . In Bray v. Commonwealth , 68
S .W.3d 375 (Ky . 2002), we reversed those convictions and sentences and remanded
for a new trial. Following a change of venue to the Christian Circuit Court, Appellant
was retried and again convicted of two counts of murder and one count of arson in the
first degree . He was sentenced to life imprisonment for each murder conviction and to
forty years imprisonment for the arson conviction . He appeals to this court as a matter
of right, Ky. Const. ยง 110(2)(b), asserting the following claims of error: (1) admission of
certain hearsay statements in violation of his Sixth Amendment right to confrontation ;
(2) insufficiency of the evidence to support his convictions ; (3) denial of his motion for a
continuance for the purpose of obtaining an independent competency evaluation ; (4)
failure to hold a competency hearing after ordering that a competency evaluation be
performed by the Kentucky Correctional Psychiatric Center (KCPC) or its designee; and
(5) failure to declare a mistrial after the prosecutor introduced evidence of Appellant's
other bad acts .
I. CONFRONTATION .
Just before midnight on November 7, 1982, Ernestine Goins, a resident of
Alabama, received a telephone call from her sister, Audrey Bray. Audrey told Goins
that she was "scared" and needed to talk. Audrey told Goins that she was looking out
her front windows and could see Appellant sitting at the bottom of the hill . She said that
he had been sitting there for "quite a while" and that she knew it was Appellant because
she heard him coughing and could see him lighting his cigarettes. She stated that she
could see Appellant carrying a flashlight and that she "feared for her life ." Goins told
her to call emergency services, but Audrey responded "I done called, and they won't
come because it's a domestic problem and the law won't get involved until there has
been someone hurt."
On Appellant's first appeal, we held that Audrey's statements identifying
Appellant as the person sitting near her residence were properly admitted pursuant to
the "present sense impression" exception to the hearsay rule . KRE 803(1) ; Bray , 68
S .W .3d at 381 . During the interim, the United States Supreme Court decided Crawfo rd
v. Washington, 541 U.S . 36, 124 S.Ct. 1354, 158 L.Ed .2d 177 (2004), holding that the
Confrontation Clause of the Sixth Amendment forbids admission of all' testimonial
hearsay statements against a defendant at a criminal trial, unless the witness is
unavailable and the defendant has had a prior opportunity for cross-examination . Id . at
68, 124 S .Ct. at 1374. Thus, the threshold issue under Crawford is whether Audrey's
hearsay statements were testimonial .2
To provide guidance for lower courts, Crawford explained :
The text of the Confrontation Clause . . . . applies to "witnesses" against
the accused - in other words, those who "bear testimony ." "Testimony," in
turn, is typically "[a] solemn declaration or affirmation made for the
purpose of establishing or proving some fact." An accuser who makes a
formal statement to government officers bears testimony in a sense that a
person who makes a casual remark to an acquaintance does not.
Id . at 51, 124 S .Ct. at 1364 (internal citations omitted) . The Court stated that, at a
minimum, the term "testimonial" applies to police interrogations and to prior testimony,
' The Supreme Court recognized that, historically, an exception has been recognized
for testimonial dying declarations . Crawford , 541 U .S. at 56 n .6, 124 S .Ct. at 1367 n .6 .
However, the Court declined to decide whether the Sixth Amendment incorporates such
an exception, noting that if an exception must be accepted for historical reasons, it is
"sui generis ." Audrey Bray's statements to her sister clearly were not dying
declarations .
2 Although the Supreme Court declined to specifically declare that the Confrontation
Clause applies only to "testimonial," as opposed to non-testimonial, statements,
Crawford, 541 U.S. at 61, 124 S.Ct. at 1370, other jurisdictions have uniformly confined
their analysis to the testimonial/nontestimonial distinction, allowing the introduction of
nontestimonial hearsay that fits within a well-recognized ("firmly rooted") exception to
the hearsay rule or contains particularized guarantees of truthfulness . Esc . , State v.
Alvarez, 107 P .3d 350, 355-56 (Ariz. Ct . App. 2005) (admission of nontestimonial
hearsay statements under excited utterance exception); State v. Doe, 103 P.3d 967,
972 (Idaho Ct. App. 2004) (same); People v. Geno , 683 N .W .2d 687, 692-93 (Mich. Ct.
App. 2004) (admission under Michigan's residual hearsay exception of nontestimonial
hearsay statements similar to statements admissible under the "state-of-mind"
exception [KRE 803(3)]) ; State v. Hembertt, 696 N .W .2d 473, 480-86 (Neb. 2005)
(admission of nontestimonial hearsay statements under excited utterance exception) ;
State v. Fisher , 108 P.3d 1262, 1269 (Wash . Ct . App. 2005) (admission of
nontestimonial hearsay statements made for purposes of medical diagnosis); State v.
Ferguson, 607 S.E .2d 526, 528-29 (W. Va. 2004) (admission of nontestimonial hearsay
statements under excited utterance exception) .
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whether at a preliminary hearing, before a grand jury, or at a former trial . Id . at 68, 124
S .Ct. at 1374. However, because the statement at issue in Crawford, a statement given
under custodial interrogation by police, was "testimonial under any definition," id . at 61,
124 S .Ct. at 1370, the Court "[left] for another day any effort to spell out a
comprehensive definition of 'testimonial ."' Id. at 68, 124 S .Ct. at 1374 .
Crawford endorsed the view that statements were testimonial if, e&, they "were
made under circumstances which would lead an objective witness reasonably to believe
that the statement[s] would be available for use at a later trial ." Id. at 52, 124 S.Ct. at
1364 . The circumstances of the case sub judice did not present that situation. In
Crawford , the declarant's statements were directed to police and in response to
questioning . Id . at 38-39, 124 S.Ct. at 1357 . Audrey Bray's statements, on the other
hand, were spontaneous and were directed to her sister . See United States v. Lee , 374
F.3d 637, 645 (8th Cir. 2004) ("[Co-defendant's] statements to his mother do not
implicate the core concerns of the confrontation clause .") ; United States v. Manfre, 368
F.3d 832, 838 n .1 (8th Cir. 2004) (statements were nontestimonial because they "were
made to loved ones or acquaintances and are not the kind of memorialized, judicialprocess-created evidence of which Crawford speaks") ; People v. Butler , 25 Cal . Rptr.
3d 154, 161-62 (Cal . Ct. App. 2005) (statements held not testimonial where "[n]o
government official was present . . . . [and] [t]he statements were made spontaneously
to co-workers .") ; People v. Coleman , 791 N.Y .S .2d 112,113-14 (N .Y . App. Div. 2005)
(statements held not testimonial where, although made to police, "did not result from
structured questioning") ; State v. Staten , 610 S . E.2d 823, 836 (S .C . Ct . App. 2005)
(statements held not testimonial where they were made to declarant's cousin and
roommate) . Audrey Bray's statements were not made under formal conditions that
would give a witness time for reflection ; they bear greater resemblance to "casual
remark[s] to an acquaintance ." Crawford, 541 U.S . at 51, 124 S.Ct. at 1364 .
Many courts have held that statements made to a 911 (emergency) telephone
operator under similar circumstances are not testimonial in nature. See, etc .,, State v.
Wright , 686 N .W .2d 295, 302-03 (Minn. Ct . App. 2004) (statements to 911 operator held
nontestimonial where no evidence suggested the call was handled by the 911 operator
under a formalized investigatory protocol, and the victims were providing information for
immediate intervention and not for eventual prosecution) ; Coleman , 791 N .Y .S .2d at
113 (statements made to 911 operator held nontestimonial where declarant's "primary
motivation was to call for urgent assistance, and not to phone in an anonymous
accusation ,, ) ; State v. Mason , 110 P .3d 245, 249 (Wash Ct. App. 2005) (statements
made to 911 operator held nontestimonial because they were "made while in peril for
the purpose of seeking protection, rather than for the purpose of bearing witness") .
Appellant asserts that because Goins lived in Alabama and could not have
prevented the crime, the only plausible reason for the telephone call was testimonial,
i.e. , to let Goins know that if she (Audrey) were subsequently killed, Appellant was the
perpetrator. We disagree . Both the content and the context of the conversation
indicate that Audrey telephoned Goins in the throes of fear - not to provide evidence for
use at a future trial, but to seek advice and assurance. She had already sought help
from the police to no avail. Her frantic statements to Goins describing her ongoing
observations were not indicative of the calculated reflections engaged in by one seeking
to preserve evidence .
In United States v. Arnold, 410 F.3d 895 (6th Cir. 2005), statements to a 911
dispatcher that defendant had threatened her with a gun were held to be testimonial
under Crawford because the declarant would reasonably expect the statements to be
used to prosecute the defendant. Id. at 903-04 . Arnold explained that, under its facts,
"it would be antithetical . . . to suggest that [declarant] made the statement for any other
reason than to establish that the alleged incidents occurred ." Id. at 903. At first blush,
Arnold appears to support Appellant's contention. However, in United States v. Cromer ,
389 F.3d 662 (6th Cir. 2004), the Sixth Circuit explained that "in the case of a crime
committed over a short period of time, a statement . . . made before the crime is
committed . . . almost certainly is not testimonial ." Id. at 673 (quoting Richard D .
Friedman, Confrontation : The Search for Basic Principles , 86 Geo. L.J . 1011, 1042-43
(1998)) . In this case, Audrey's statements to her sister were made prior to the crime .
A declarant's fearful statements over the telephone that a crime may occur do not alone
establish "circumstances which would lead an objective witness reasonably to believe
that the statement would be available for use at a later trial . . . ." Crawford , 541 U .S . at
52, 124 S.Ct . at 1364 . The statements at issue here were not testimonial in nature, thus
not within the type of hearsay absolutely precluded by Crawford.
11 . SUFFICIENCY OF THE EVIDENCE.
At trial, Appellant moved for directed verdicts of acquittal on all charges. His
motions were overruled . On a motion for a directed verdict of acquittal, all fair and
reasonable inferences are drawn in the Commonwealth's favor. Commonwealth v .
Benham , 816 S .W . 2d 186,187 (Ky. 1991) . On appellate review, we determine
whether, under the evidence viewed as a whole, it was clearly unreasonable for the jury
3 The declarant's post-crime statements in Arnold were made to a 911 dispatcher another significant fact in that court's analysis . Arnold , 410 F .3d at 903.
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to have found the defendant guilty. Commonwealth v. Sawhiil, 660 S .W .2d 3, 5 (Ky.
1983).
A. MURDER .
Evidence at trial established that on October 9, 1982, Audrey Bray filed for a
divorce from Appellant . She began packing clothes and sheets in a foot locker,
purportedly in preparation to move to Alabama . About a week before her death, two of
Audrey's friends, Teresa Hamm and Lisa Colver, accompanied her to the residence she
had shared with Appellant to help her retrieve her belongings. While there, Appellant,
with gun in hand, threatened Audrey that she would "never live long enough to live with
anybody else," nor would she ever "live long enough to see Alabama ." Frightened,
Audrey and her friends immediately left the residence .
November 7, 1982, was to be Audrey's last night of work at the Country
Crossroads Restaurant . She had put in her two weeks notice, explaining her intentions
to move to Alabama . After she left work that day, Audrey returned to the residence of
her mother, Effie York, where she had been staying since her separation from
Appellant . As previously noted, just before midnight, Audrey telephoned her sister,
Ernestine Goins, and told her that Appellant was sitting at the bottom of the hill just
below York's residence holding a flashlight.
The next morning, around 4:00 a.m., Danny Nelson, who lived directly across the
street from York, abruptly awoke to the sound of a gunshot . A few seconds later, he
heard a second gunshot. He looked out the window but could not hear or see anything,
so he lay back down . Several minutes later, he noticed that it had become very bright
outside . He looked out the window again and saw York's residence engulfed in flames.
When police arrived at the mobile home, they found Audrey Bray and Effie York
dead, both with gunshot wounds to the head . An expert testified at trial that the bullets
used to kill the victims were .22 caliber magnum bullets . The Commonwealth proved
that at the time of the murders, Appellant owned a .22 caliber magnum pistol .
Although the police immediately suspected Appellant, they could not locate him.
The ensuing search and investigation led police to the Barkley Regional Airport, where,
on November 11, 1982, they found Appellant's black Chevrolet pickup truck abandoned
with the keys still in the ignition . Also, two tickets had been purchased with cash for the
7:05 a.m . flight to St . Louis . Inside the vehicle, detectives found two operable flashlights
and a box containing squirrel tails. Two days later, on November 13, a janitor reported
finding a partial box of fifteen .22 magnum caliber bullets abandoned in the airport's
men's restroom . Testimony at trial showed that finding ammunition at the airport was
rare ; since 1974, ammunition had been found there on only three or four occasions. On
November 15, the police searched a dumpster at the airport and found another squirrel
tail and a "TVA" patch similar to one Appellant was known to own.
Although the FBI conducted an extensive manhunt, Appellant remained at large
for more than twelve years . On October 26, 1994, police received a tip that Appellant
was residing in Toronto, Canada . On February 2, 1995, police spotted a person fitting
Appellant's description . When asked his name, he responded, "Walter Watkins ." When
asked to produce identification, he produced a Canadian birth certificate in the name of
"Walter George Wilkins ." After further questioning, police substantiated that the person
was, in fact, Appellant and placed him under arrest. Appellant was thereafter extradited
to Kentucky and tried for the murders and arson .
A person is guilty of murder when he intentionally causes the death of another
person. KRS 507.020(1)(a) . Appellant argues that the evidence against him was
insufficient because it was entirely circumstantial . However, circumstantial evidence
can suffice to support a criminal conviction . Baker v. Commonwealth , 860 S .W.2d 760,
761 (Ky. 1993) . A conviction may be obtained upon circumstantial evidence when the
evidence taken as a whole is of such character that a jury would not be clearly
unreasonable in concluding that a person is guilty beyond a reasonable doubt . Bussell
v . Commonwealth , 882 S .W.2d 111, 114 (Ky. 1994) . The same standard applies
regardless of whether a case involves direct or circumstantial evidence .
Commonwealth v. Collins , 933 S.W.2d 811, 815 (Ky. 1996) .
There was sufficient circumstantial evidence to support the jury's conclusion that
Appellant murdered Audrey Bray and Effie York. The murders were committed one
week after Appellant threatened Audrey that she would "not live to see Alabama" and
on the very day Audrey intended to leave for Alabama . There was evidence tending to
show that Appellant was at the crime scene and acting suspiciously just hours before
the deaths were discovered . The bullets used were from a .22 caliber magnum pistol,
and Appellant owned a weapon of that type . Within hours of the crime, Appellant had
abandoned his vehicle at the airport . Bullets matching those at the crime scene were
found discarded inside the airport . Appellant fled to Canada, was at large for more than
twelve years, and concealed his identity upon being confronted by the authorities .
The extradition was obtained under an agreement between Canadian authorities and
the United States Department of Justice that prosecutors would not seek the death
penalty.
Appellant correctly argues that evidence of flight, standing alone, does not prove
guilt beyond a reasonable doubt. Vick v. United States , 216 F.2d 228, 232 (5th Cir.
1954). However, Appellant was not convicted on the basis of flight alone ; as stated
above, substantial other circumstantial evidence tied Appellant to the murders, ec . ,
motive, opportunity, and his prior threats to kill Audrey . Moreover, evidence of flight has
long been considered evidence of a consciousness of guilt. Rodriguez v .
Commonwealth , 107 S .W .3d 215, 218-20 (Ky. 2003) ; Chumbler v. Commonwealth , 905
S .W .2d 488, 496 (Ky. 1995) ; Hord v. Commonwealth , 227 Ky. 439, 13 S.W.2d 244, 246
(1928). A defendant's attempt to conceal his true identity by providing an alias to police
also shows a consciousness of guilt. Adkins v. Commonwealth , 96 S.W.3d 779, 793
(Ky. 2003); Fugate v. Commonwealth , 445 S.W .2d 675, 681 (Ky. 1969), overruled on
other grounds bar Sawhill, 660 S.W.2d at 5. See also United States v. Clark, 184 F.3d
858, 869 (D.C. Cir. 1999) .
Appellant asserts that he gave an adequate explanation of why he fled the
country . He testified that he and Audrey's siblings did not get along . His suspicions that
they would blame him for the deaths of their loved ones and seek retribution compelled
him to leave. He "just walked . Next thing [he] was close to Canada and just went on ."
However, for the purpose of ruling on a motion for directed verdict, the trial court must
assume that the evidence for the Commonwealth is true and reserve for the jury
questions as to the credibility and weight to be given to the evidence . Benham, 816
S.W.2d at 187-88 . A reasonable jury could believe beyond a reasonable doubt that
Appellant murdered Audrey Bray and Effie York . Id. at 187.
B. ARSON.
Appellant asserts that the evidence was insufficient to convict him of arson in the
first degree because the victims died of gunshot wounds to the head before the fire was
started . Thus, he reasons, the statutory requirements for first-degree arson were not
met because the residence was not "inhabited or occupied," and he would not have had
reason to believe it was ; nor was any person seriously injured as a result of the fire .
KRS 513.020(1). On Appellant's first appeal we held that an instruction on first-degree
arson was properly given, because the "evidence was inconclusive as to whether the
victims were living or dead at the time the house was set afire," Bray , 68 S .W.3d at
385, but that Appellant was entitled to an instruction on second-degree arson as a
lesser included offense. Id.
Appellant now asserts that "as distinguished from appellant's first trial, the
evidence left no doubt as to whether the victims were dead or alive when the house was
set on fire ." Brief for Appellant, at 44 (emphasis added) . He argues that neither victim
could have been alive due to the amount of carbon monoxide in the blood stream of
each . Dr. Roberta Conrad, who performed the autopsies of both victims, testified for the
prosecution during the first trial regarding the amount of carbon monoxide in the victims'
bloodstreams. During Appellant's second trial, the prosecution played for the jury the
videotape of Dr. Conrad's testimony given at Appellant's first trial. Obviously, the
evidence regarding the victims' times of death, whether they occurred before or after the
setting of the fire, i .e . , Dr. Conrad's testimony, was exactly the same at the second trial
as it was at the first trial . Thus, our determination on the first appeal that the evidence
was sufficient to support Appellant's conviction of arson in the first degree is the law of
the case . Thomas v. Commonwealth , 931 S .W.2d 446, 450 (Ky. 1996). Furthermore,
the evidence was also not conclusive as to whether Appellant had reason to believe that
both victims were still alive when he set the fire . KRS 513.020(1)(a) .
III. COMPETENCY HEARING .
Prior to his first trial, Appellant moved for a mental evaluation and treatment . Dr.
Robert Sivley conducted the evaluation, diagnosing Appellant with adjustment disorder
and paranoid personality disorder, manifested by a pervasive distrust and
suspiciousness of others . Ultimately, however, he concluded that Appellant was indeed
competent to understand the charges against him and to participate rationally in his own
defense . The trial court agreed, finding Appellant competent to stand trial. RCr 8.06.
The issue of Appellant's competency was not raised on the first appeal. After reversal
and remand of Appellant's first convictions, Appellant notified the Commonwealth of his
intent to present evidence of his paranoid personality disorder, pursuant to RCr
7 .24(3)(B)(i) (notice of evidence of mental disease or defect bearing on the issue of
guilt) . As a result, the Commonwealth requested a mental examination pursuant to RCr
7.24(3)(B)(ii) . The trial court ordered Appellant to be evaluated by the KCPC, but the
form order recited that "[p]ursuant to KRS 504.100, upon motion of the Commonwealth,
and the Court being satisfied that the Defendant should be re-evaluated to determine
his/her competency to stand trial and criminal responsibility at the time of the offense
Dr. Frank Deland conducted the evaluation . He diagnosed Appellant with
"paranoid personality traits" and concluded that Appellant "does not . . . lack substantial
capacity to understand the procedures against him or meaningfully participate in his
own defense ." Appellant immediately filed a motion for a competency hearing, asking
the court to (1) find Appellant incompetent to stand trial, or, alternatively, (2) provide
Appellant with funds to hire an expert on the issue of competency, and (3) continue the
trial date until such evaluation could be completed . The trial court denied the motion
entirely, never holding a competency hearing . On appeal, Appellant argues that it was
error for the trial judge not to grant him funds and a continuance in order to allow him
time to hire an independent expert . Additionally, he asserts that the failure to hold the
competency hearing was reversible error.
KRS 504.1 00(l) requires a court to "appoint at least one (1) psychologist or
psychiatrist to examine, treat and report on the defendant's mental condition," whenever
it "has reasonable grounds to believe the defendant is incompetent to stand trial ." KRS
504 .100(3) states, "After the filing of a report (or reports), the court shall hold a hearing
to determine whether or not the defendant is competent to stand trial ." We have held
that "Section (3) is clearly mandatory ." Mills v. Commonwealth , 996 S.W .2d 473, 486
(Ky. 1999) . However, as in Mills , the trial court's error in this case was obviously
harmless. In the first place, the Commonwealth's request for a mental examination was
not for competency purposes but to obtain evidence to rebut Appellant's intent to
present a defense of mental illness or defect . The trial court did not state a belief that
Appellant might be incompetent to stand trial . He simply signed the wrong form order.
Nevertheless, the standard of review when the trial court fails to hold a
competency hearing is, "Whether a reasonable judge, situated as was the trial court
judge whose failure to conduct an evidentiary hearing is being reviewed, should have
experienced doubt with respect to competency to stand trial ." Williams v.
Bordenkircher , 696 F.2d 464, 467 (6th Cir. 1983) (quoted in Mills , 996 S.W.2d at 486) .
"[E]vidence of a defendant's irrational behavior, his demeanor at trial, and any prior
medical opinion on competence to stand trial are all relevant" facts for a court to
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consider . Drope v. Missouri , 420 U.S. 162, 180, 95 S.Ct. 896, 908, 43 L .Ed .2d 103
(1975) (emphasis added) . To show that he was incompetent to stand trial, Appellant
cites Dr. Deland's report and Appellant's own allegedly bizarre testimony at trial .
However, Dr. Deland's report specifically concludes that Appellant was competent to
stand trial . More importantly, it repeats essentially the same information and
conclusions as Dr. Sivley's report, on which the trial court relied in determining prior to
the first trial that Appellant was competent to stand trial . Where Sivley had reported,
"[Appellant] expresses a strong suspicion of [the] corruptness [of the court system] and
of its determination to punish him," Deland reported, "[Appellant] believes that Judge
Foust's court is necessarily tendentious and will not yield to the principles of fairness
unless forced ." Furthermore, Deland reported,
[Appellant] admits, though that the judicial system in Kentucky, overall, is
as just as one could expect, his citing the successful appeal as evidence .
Thus, Mr. Bray's suspicions do not include the entire judicial process, only
the process specific to his case as it is being conducted at this time. That
Mr. Bray can make such a distinction strongly suggests that his paranoid
thoughts are under some amount of cognitive control and that he is
making a valued iudgment about his course of action at this time.
(Emphasis added .) In another example, Sivley had stated that "he seems to believe
that he cannot have a defense attorney who will act in his own interest." Likewise,
Deland reported, "[He is] overly suspicious of his current attorney," but Deland further
stated :
Mr . Bray states that he has no personal animosity towards his lawyer or
any of the other court personnel, he only objects to their official functioning
as it pertains to his case in particular. Again, that Mr. Bray can make such
distinctions strongly suggests that his judgments about what actions he
will take with regard to his defense strategy are considered ones and not
irreversible .
(Emphasis added .) Appellant correctly points out that Deland's report confines
Appellant's paranoia to his dealings with the court and his attorneys . However, it is that
conclusion that caused Deland to more vigorously conclude that:
[Appellant] has the ability to adjust his stance and strategy such that he
could work with his attorney effectively . His refusal to do so, I believe,
would be a considered action on his part and not one that is mandated by
blind adherence to his paranoid ideations.
Thus, Deland's report does not support Appellant's argument on appeal . Because the
two psychological opinions were virtually identical, except that Deland's was more
emphatic, and because Appellant was deemed competent after a hearing on Sivley's
opinion, a reasonable judge would have no reason to further doubt Appellant's
competency. See Pate v. Commonwealth , 769 S .W.2d 46, 47 (Ky. 1989) ("There is no
right to a continual succession of competency hearings in the absence of some new
factor.") .
Appellant additionally points to an instance during his trial testimony where he
accused a local police officer of assisting him in his escape . The prosecutor, judge, and
defense counsel were equally surprised by the testimony, defense counsel stating that
he had never been apprised of that accusation . Appellant asserts that this bizarre
accusation should have given the judge reasonable doubt as to whether he could
"participate rationally in his . . . defense," RCr 8.06, thus requiring the judge to grant
Appellant a continuance in order to have another evaluation performed. We disagree .
That Appellant was suspicious of his defense counsel was clear after Appellant's first
mental examination by Dr. Sivley and was reinforced by Dr. Deland's examination .
However, it was clear that both doctors viewed Appellant's suspicion as a considered
action on his part, not one "mandated by blind adherence to his paranoid ideations ."
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His accusation at trial did not affect that opinion . Pate , 769 S .W .2d at 47. Furthermore,
though bizarre, there was no proof that Appellant's accusation was untrue .
Accordingly, a reasonable trial judge would have had no factual basis to doubt
Appellant's competence . Therefore, no error occurred in denying Appellant's request
for an additional examination, and it was harmless error for the court to deny Appellant
a competency hearing . Mills, 996 S.W.2d at 486.
IV. OTHER BAD ACTS.
Appellant next alleges that a mistrial was warranted after the prosecutor crossexamined Appellant regarding the following incidents:
Q:
Isn't it true that you weren't supposed to have any contact with Audrey?
A:
No ma'am.
Q:
Do you recall ever crawling out a bathroom window after an officer tried to
talk with you?
A:
No ma'am .
Q:
Who's Bubba Greek?
A:
[no response]
Q:
Isn't Bubba Greek the person that Audrey was going to Alabama to see?
A:
No. That's not the reason she went to Alabama .
Q:
Didn't you call Bubba Greek on the telephone and threaten him?
I didn't. No ma'am.
Thereafter, defense counsel objected and requested a mistrial . He argued that this last
question about a threat made to a person named Greek was irrelevant and prejudicial.
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The prosecutor then withdrew the question, and the trial court denied Appellant's motion
for a mistrial. Appellant did not request an admonition to the jury to disregard the
testimony . On appeal, Appellant incorporates the two immediately previous questions
into his argument, asserting that the three accusations were purposefully interjected into
the case but were never substantiated by proper evidence . We address only the error
involved in the last of the three questions because it was the only issue preserved for
our review, and Appellant does not request palpable error review pursuant to KRE
103(e) .
Whether 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) . 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 . Skaggs v. Commonwealth , 694 S .W .2d
672, 678 (Ky. 1985), habeas corpus granted on other grounds by Skaggs v. Parker, 235
F.3d 261, 275 (6th Cir. 2000) . 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 [except by grant of a mistrial] ." Gould v. Charlton Co., Inc . ,
929 S.W.2d 734, 738 (Ky. 1996) .
This type of error is easily cured by an admonition . In Graves v. Commonwealth ,
17 S .W.3d 858 (Ky. 2000), a witness made reference to the defendant's prior criminal
conviction by stating, "I knew he wasn't supposed to have a gun ." Id. at 865 . We held
that an evidentiary error of that type was easily curable by an admonition, but that an
admonition was not requested . Id . A mistrial, on the other hand, was clearly
unwarranted . Id. In the case sub iuL dice , the prosecutor's question was fleeting . It was
- 1 7-
asked, objected to, and immediately withdrawn . Had Appellant requested an
admonition, any prejudicial effect that may have occurred could have been cured .
Appellant insists that reversal is required pursuant to Coates v. Commonwealth ,
469 S .W .2d 346 (Ky. 1971), and Woodford v. Commonwealth , 376 S.W .2d 526 (Ky.
1964) . The defendant in Coates, an official with access to the State Reformatory, had
been tried for possession of marijuana . During cross-examination of the defendant and
again during closing argument, the Commonwealth's attorney implied that the defendant
had been trafficking illicit drugs into the Reformatory. However, the Commonwealth
never introduced any evidence to support its implications . Our predecessor court held
that the Commonwealth had interjected a "false issue" into the case "which was highly
prejudicial." Coates, 469 S.W .2d at 348. The issue of drug trafficking at that time was a
"highly inflammable matter and the public generally is incensed against those who
induce the use of and supply [of] drugs." Id . No similar prejudice was created here . In
Woodford , the prosecutor asked the defendant repeatedly if he had been pursued by
police officers in a chase . Although defense counsel voiced several objections, the
questioning continued . Woodford , 376 S.W .2d at 527-28 . No such repetition occurred
here . No manifest necessity for a mistrial existed, and no abuse of discretion occurred .
Accordingly, the judgment of convictions and the sentences imposed by the
Christian Circuit Court are AFFIRMED .
All concur.
COUNSEL FOR APPELLANT :
Thomas M. Ransdell
Assistant Public Advocate
Department of Public Advocacy
Suite 302
100 Fair Oaks Lane
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Gregory D. Stumbo
Attorney General
State Capitol
Frankfort, KY 40601
Brian T. Judy
Assistant Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
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