H. DREW MAYO V. COMMONWEALTH OF KENTUCKY
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RENDERED : SEPTEMBER 23, 2010
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H . DREW MAYO
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APPELLANT
ON APPEAL FROM McCRACKEN CIRCUIT COURT
HONORABLE CRAIG Z. CLYMER, JUDGE
NO . 08-CR-00446
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
AFFIRMING
A circuit court jury convicted H . Drew Mayo of one count of first-degree
rape, one count of first-degree sodomy, and of being a second-degree persistent
felony offender (PFO 2) . Mayo now appeals from the resulting judgment as a
matter of right.' Finding no reversible error, we affirm.
I. FACTUAL AND PROCEDURAL HISTORY.
The grand jury indicted Mayo for raping and sodomizing his estranged
wife by forcible compulsion and for being a PFO 2 . The charges proceeded to
jury trial . At trial, the victim testified that she and Mayo had been separated
for about two weeks before the acts in question occurred. According to the
victim, she brought Mayo to her home - the former marital home that Mayo
Ky. Const. § 110(2)(b) .
had vacated - to talk. The victim testified that an argument ensued and that
Mayo became angry and forcibly raped her and forced her to perform oral sex
on him . The victim testified that she did not want to have sex of any kind with
Mayo at that time, but she engaged in the oral and vaginal copulation because
Mayo. threatened her with anal sex if she did not comply. The victim also
testified that Mayo , threatened to "bust" her in the mouth if she did not comply .
Mayo's version of events was different. Mayo agreed that he and the
victim had been separated ; but Mayo testified at trial that he and the victim
had spent time together in the day or so preceding the alleged rape, and he
believed they were going to repair their relationship. According to Mayo, he
and the victim had consensual sexual intercourse several times in the hours
preceding the alleged rape.
Obviously disbelieving Mayo, the jury convicted him of first-degree rape,
first-degree sodomy, and being a PFO 2 . The jury recommended ten years'
imprisonment for the rape to be served consecutively to ten years'
imprisonment for the sodomy. In lieu of these sentences, the jury
recommended that Mayo be sentenced to twenty years' imprisonment for the
PFO 2 conviction . The trial court sentenced Mayo in accordance with the jury's
verdict and recommended sentences, after which Mayo filed this appeal.
II. ANALYSIS.
Mayo raises several interconnected issues, some of which we will
combine in this opinion . Mayo contends the trial court erred by:
*granting the Commonwealth's motion in limine to prevent testimony of
past anal intercourse between Mayo and the victim ;
" failing to grant a mistrial and failing to admonish the jury for remarks
made by the Commonwealth both during its cross-examination of Mayo
and during its closing argument ;
" failing to ask Mayo expressly to waive his right to poll the jury; and
" returning partially completed jury verdict forms to the jury during
deliberations in the penalty phase .
We find no reversible error as to any of Mayo's arguments .
A. No Error in Excluding Evidence of Past Consensual Anal Intercourse.
On the morning the trial was scheduled to begin, the trial court
conducted an in-chambers hearing on motions in limine, including an oral
motion by the Commonwealth to prohibit evidence of the victim's sexual
history. At the conclusion of that lengthy hearing, the trial court seemed to
rule that Kentucky Rules of Evidence (KRE) 412, commonly known as the rape
shield law, prevented testimony about the victim's sexual history because Mayo
had not provided the Commonwealth with the fourteen-day notice required by
KRE 412 (c) (1) (A). During the trial, however, the trial court orally amended its
ruling to permit questioning regarding prior sexual relations between Mayo and
the victim near the time of the alleged rape . But the trial court did not allow
testimony regarding prior anal intercourse between Mayo and the victim.
On appeal, Mayo contends the trial court committed reversible error by
excluding testimony of alleged consensual anal intercourse between him and.
the victim. Mayo admitted to having had sexual relations with the victim on
the day in question and was, thus, relying on a consent defense. So Mayo
contends that the trial court should have allowed testimony about prior anal
intercourse to show that the alleged threat he made to the victim - submit to
oral and vaginal intercourse under threat of anal intercourse - was not really
a threat because anal intercourse had previously been a consensual act
between Mayo and the victim . We disagree that the trial court erred in its
ruling.
Our analysis must begin with a recitation of the relevant provisions of
KRE 412 . That rule provides, in relevant part:
(a)
Evidence generally inadmissible . The following evidence is
not admissible in any civil or criminal proceeding involving
alleged sexual misconduct except as provided in
subdivisions (b) and (c)
Evidence offered to prove that any alleged victim
engaged in other sexual behavior.
(2)
(b)
Evidence offered to prove any alleged victim's sexual
predisposition.
Exceptions:
In a criminal case, the following evidence is
admissible, if otherwise admissible under these rules:
(B)
(c)
evidence of specific instances of sexual behavior
by the alleged victim with respect to the person
accused of the sexual misconduct offered by the
accused to prove consent or by the
prosecution . . . .
Procedure to determine admissibility.
A party intending to offer evidence under
subdivision (b) must:
(A)
(B)
(2)
file a written motion at least fourteen (14) days
before trial specifically describing the evidence
and stating the purpose for which it is offered
unless the court, for good cause requires a
different time for filing or permits filing during
trial; and
serve the motion on all parties and notify the
alleged victim or, when appropriate, the alleged
victim's guardian or representative .
Before admitting evidence under this rule the court
must conduct a hearing in camera and afford the
victim and parties a right to attend and be heard . The
motion, related papers, and the record of the hearing
must be sealed and remain under seal unless the
court orders otherwise .
Although the general thrust of KRE 412 is toward exclusion of evidence
regarding an alleged victim's sexual history, the rule makes an exception for
evidence of past sexual behavior of the alleged victim with the accused if
offered by the accused to prove consent or if offered by the prosecution .
Certainly, we have interpreted KRE 412(b) (1) (B) in an earlier unpublished case
to mean that "past sexual behavior between the alleged victim and the
defendant is relevant and is generally admissible on the issue of consent"
because "evidence of consensual sex or the desire to have consensual sex after
an allegation of rape would tend to prove that consent may have in fact been
given and that no rape occurred."2 Mayo relies upon this exception to argue
that the trial court should not have excluded evidence regarding prior
consensual anal intercourse Mayo allegedly had with the victim .
Before we delve into whether the trial court properly excluded this
evidence, we must address some general principles . Mayo argued to the trial
court, and seems to argue similarly before us, that sexual relationships
between a husband and wife fall outside the protections of KRE 412 primarily
because of a general assumption that spouses engage in sexual relations with
each other. So Mayo's argument goes : any stigma associated with revealing a
victim's sexual history would not apply when the alleged victim was the spouse
of the alleged perpetrator because no juror would think less of a victim after
learning that the victim had engaged in sexual relations with a spouse. But
before we can address whether sex crimes committed against a spouse fall
outside the protections of KRE 412, we must determine whether a spouse can
even commit an inter-spousal sexual offense.
George v. Commonwealth, No . 2001-SC-1007-MR, 2003 WL 22227195, at *2 (Ky.
Sept. 18, 2003) .
Former Kentucky law defined rape and sodomy in such a way as to
preclude one spouse from raping or sodomizing the other spouse .3 Under
modern Kentucky law, however, it is clear that "[seexual intercourse and
deviate sexual intercourse can constitute rape or sodomy, even though the
defendant and victim are married to one another ."4 So having determined that
it is possible for a spouse to be guilty of raping or illegally - that is, without
consent - sodomizing a spouse, we move on to the question of whether
evidence of inter-spousal sexual relations is outside the scope of KRE 412 .
Mayo argues that evidence of sexual relations between a victim and
spouse is outside the scope of KRE 412 because "[t]he obvious purpose of
KRE 412 was to prevent unfair and unforeseen attack by a defendant upon the
character of the victim" ; but "[t]he husband/wife relationship is clearly not the
type of evidence that would be [unforeseen] by the victim to be used at trial ."
But Mayo is unable to cite to any authority to support his contention that
KRE 412 does not apply to inter-spousal sexual relations . The rule contains no
such exception, and we decline to create one in this case. In short, KRE 412 is
See ROBERT G. LAWSON 8s WILLIAM H . FORTUNE, KENTUCKY CRIMINAL LAW § 11 -2 (e)
(1998) ("Kentucky historically defined rape and sodomy as acts with someone other
than a spouse, a definition in accord with both the common law and the Model
Penal Code.") (internal footnotes omitted) . For a convincing rejection of the reasons
underlying the antiquated theory that a husband could not be guilty of raping his
wife, see Warren v. State, 336 S .E.2d 221 (Ga. 1985) .
LAWSON 8s FORTUNE at § 11-2 (e) .
Kentucky Revised Statutes (KRS) 510 .020(1) provides that lack of consent by the
victim is an element of all the offenses contained in KRS Chapter 510, which
includes rape and sodomy .
not rendered inapplicable simply because the victim is the spouse of the
accused.
Having cleared away the procedural underbrush, we now may focus on
the merits of the trial court's decision to exclude evidence of alleged past
consensual anal intercourse between Mayo and the victim . At the hearing on
the Commonwealth's motion in limine, the trial court focused upon the lack of
notice given by Mayo of his intent to introduce evidence of his past sexual
relations with the victim under the rape shield exception codified at
KRE 412 (b) (1) (B) . Since there was admittedly insufficient notice given to
comply with the requirements of KRE 412(c) (1) (A), the trial court had the
discretion to rely upon the lack of notice alone to exclude testimony about the
victim's sexual history with Mayo .
But the trial court did not ultimately rely upon the lack of notice .
Instead, the trial court permitted testimony about the sexual relations Mayo
claims to have had with the victim in the day or so before the rape ; and Mayo
repeatedly - and usually without objection - testified on both direct and
cross-examination about those purported sexual encounters.6
The trial court really only excluded evidence of past alleged anal
intercourse between Mayo and the victim, seemingly because it believed that
such evidence would prejudice the victim in the eyes of the jury. Although it
The trial court conducted no KRE 412(c)(2) hearing before allowing extended
testimony from Mayo regarding past sexual encounters he allegedly had with the
victim . Neither side contemporaneously objected to this lack of a hearing . And
neither side raised the lack of a hearing as an issue on appeal. So we decline to
address the prejudicial impact, if any, of the failure to hold a hearing.
did not frame it as such, the trial court essentially barred the testimony
regarding anal intercourse by applying ARE 403, which permits exclusion of
otherwise relevant evidence if the probative value of that evidence is
"substantially outweighed by the danger of undue prejudice . . . ."
The probative value of the evidence regarding a history of anal sex was
low. Solely for the sake of analysis, we shall assume that the victim did have
consensual anal sex with Mayo in the past. That does not mean, however, that
she consented to having anal sex - or any other type of sex - with Mayo on
the date in question . And the only real issue in Mayo's trial was whether the
victim consented to the intercourse in question, or whether that intercourse
was rape by forcible compulsion .
At most, evidence of past anal sex with Mayo would show a slight
lessening of the fear suffered by the victim when Mayo threatened her with anal
sex if she did not consent to oral and vaginal intercourse. In other words,
because the only real issue was whether the sex in question between Mayo and
the victim was consensual, the fact that the victim and Mayo may have had
consensual anal sex in the past does not make it more or less likely that she
consented to having any type of sex - anal or otherwise - with Mayo at the
time in question, especially since Mayo was permitted to testify repeatedly that
he had had consensual sex with the victim multiple times in the hours
preceding the rape . Adding a detail that those sexual encounters or other more
temporally remote past sexual encounters involved anal intercourse did not
materially add to Mayo's consent defense .
On the other hand, evidence that the victim had engaged in past anal
intercourse with Mayo would have had the potential to embarrass the victim.
Mayo has pointed to nothing concrete to contradict the trial court's conclusion
that the victim would have been unduly prejudiced in the minds of the jurors if
evidence were presented regarding the victim's alleged affinity for, and history
of, anal intercourse.
Of course, evidence is not necessarily inadmissible if it has a stigmatizing
effect.? But the stigma that may have been associated with a history of anal
intercourse is not the only reason to exclude the evidence. As stated before,
the probative value of that evidence in this case was low because it had little
bearing on whether the victim consented to have intercourse with Mayo at the
time in question, especially since Mayo was permitted to testify about his
alleged sexual encounters with the victim in the hours leading up to the rape .$
So permitting testimony about a history of anal intercourse was unnecessary
Smith v. Commonwealth, 904 S.W.2d 220, 223 (Ky. 1995) .
As stated previously, a sexual history between the victim and the accused is
generally relevant . George, 2003 WL 22227195 at *2 . But we perceive little
probative value in letting a defendant testify that the precise sexual history he had
with the victim included anal intercourse . So the trial court did not run afoul of
George because it permitted general testimony about the victim's past sexual
history with Mayo.
and could have distracted the jury from its task of determining whether the
victim consented to oral and vaginal intercourse at the time in question- 9
Determining whether proposed evidence's prejudicial effects substantially
outweigh its probative value under KRE 403 is a delicate, fact-intensive
inquiry. As an appellate court, we may only disturb a trial court's reasoned
decision in this area if that decision is an abuse of the trial court's discretion. to
On balance, we cannot find that the trial court abused its discretion when it
ruled that the prejudicial effects of the anal intercourse testimony substantially
outweighed that evidence's probative value, nor do we conclude that the trial
court's exclusion of this evidence improperly abridged Mayo's rights to crossexamine witnesses and to present a defense to the charges against him.
B. No Reversible Error in Commonwealth's Cross-Examination and
Closing Argument.
Mayo argues that the trial court erred by not granting a mistrial or
admonishing the jury in response to questions asked of Mayo by the
.
Commonwealth on cross-examination and statements made by the
Commonwealth in closing argument . Although we disapprove of some of the
Commonwealth's comments, we disagree with Mayo that the comments or
questions entitle him to relief.
10
We have defined something as being prejudicial when it is unnecessary. Romans v.
Commonwealth, 547 S.W.2d 128, 131 (Ky. 1977) ("Prejudice is a relative term. In
the context of a criminal proceeding it can mean only that which is unnecessarily
or unreasonably hurtful.") (quotation marks omitted) . Although Romans did not
involve a construction of prejudice in the context of KRE 403, we believe our
definition of the term prejudice in Romans is applicable to determinations under
that rule .
See, e.g., Barnett v. Commonwealth, 979 S .W.2d 98, 103 (Ky. 1998) .
Generally, Mayo's objections on appeal follow three broad contours.
First, he contends that he was entitled to a mistrial because the
Commonwealth's improper cross-examination of him regarding other prior bad
acts violates KRE 404 . 11 Relatedly, he contends the trial court erred by failing
to exclude evidence of these purported prior bad acts . Finally, he alleges that
the trial court erred by failing to grant a mistrial or admonish the jury because
of statements by the Commonwealth about a "good jury" during its closing
argument .
1 . Partial Preservation.
Although Mayo's brief is vague on the subject, 12 our review of the record
confirms the Commonwealth's contention that these interrelated issues are
11
12
KRE 404 provides, in relevant part, as follows :
. . . Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith . It may,
however, be admissible:
If offered for some other purpose, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or
accident ; or
(2)
If so inextricably intertwined with other evidence essential to the case
that separation of the two (2) could not be accomplished without serious
adverse effect on the offering party.
Notice requirement. 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 .
Mayo's brief does not comply with Kentucky Rules of Civil Procedure
(CR) 76 .12(4)(c)(v), which requires the argument section of an appellant's brief to
contain "ample supportive references to the record" and also requires "at the
beginning of the argument a statement with reference to the record showing
only partially preserved for appellate review. And Mayo did unsuccessfully
move for a mistrial during the Commonwealth's cross-examination of him. So
the denial of that motion for a mistrial is adequately preserved.
Mayo did object to the Commonwealth's reference to matters ostensibly
covered by KRE 404, but that objection was based upon the alleged
impermissible use of that evidence by the Commonwealth to show Mayo's bad
character. On appeal, however, Mayo contends that the evidence in question
fails admissibility under KRE 404(b) (i.e., that it is facially inadmissible) and,
moreover, that the trial court should have excluded the matters because the
Commonwealth did not give the requisite notice of its intent to introduce
evidence of prior bad acts. The issue regarding the evidence's facial
admissibility under KRE 404 is preserved, therefore ; but any issue regarding
exclusion because of the Commonwealth's failure to provide adequate notice is
unpreserved .
Finally, Mayo did not ask for a mistrial during the Commonwealth's
closing argument ; instead, Mayo asked for the trial court to admonish the
jury - a request the trial court granted . And Mayo expressed no
contemporaneous dissatisfaction with the content of the trial court's
admonition. So because Mayo received all the relief on that point he requested,
his argument on appeal that he was entitled to a mistrial or a further
whether the issue was properly preserved for review, and, if so, in what manner ."
Kentucky Rules of Criminal Procedure (RCr) 12.02 specifically provides that CR 76
applies to criminal actions .
admonition because of the Commonwealth's references to a "good jury" is
unpreserved.
2. No Necessity for Mistrial and No Reversible KRE 404 Error.
In order to understand fully the mistrial issue, we must recount at some
length the underlying testimony and questions . On cross-examination, the
Commonwealth asked Mayo if his substance abuse was one of the "singular"
problems of his marriage with the victim . Mayo admitted that his substance
abuse was one of the "big factors" in his marriage. The Commonwealth then
asked Mayo if he had a "pretty serious drinking problem" during his marriage,
to which Mayo responded: "At that time, no I did not have a big drinking
problem ." The Commonwealth then asked if Mayo's drinking problem had
gotten him "in trouble with the law" on "numerous times ." Mayo responded, "It
has." The Commonwealth then asked Mayo how many times he had been
arrested for "AI" (alcohol intoxication). Mayo's counsel objected . Before the
trial court made a ruling on the objection, the Commonwealth asked Mayo if
the victim had been aware of problems Mayo had been "running into with the
law" because of "alcohol abuse problems ." Mayo's counsel objected to that
question as not being "appropriate ." 13
13
Unfortunately, numerous objections and responses occurred in full view and
hearing of the jury. Better practice would have been for any discussion regarding
an objection (including the grounds for the objection, any response thereto, and
the trial court's ruling) to have occurred at the bench outside the hearing of the
jury. Cf. Allen v. Commonwealth, 286 S.W .3d 221, 232 n.35 (Ky. 2009) ("The
attorneys and trial court dealt with many objections in open court in full hearing of
the jury. Many of the issues in this case would have been eliminated if all
objections had been stated and explained, responded to, and ruled upon at the
bench out of the jury's earshot.") .
The trial court did not specifically rule on Mayo's objection. Instead, the
trial court told the Commonwealth to inquire about whether Mayo "had
problems because of his drinking"; and the questioning would "go from that."
Nevertheless, the Commonwealth immediately asked Mayo if the victim had
had Mayo arrested a week before the rape. Mayo's counsel again objected, and
a bench conference ensued .
During that bench conference, Mayo's counsel moved for a mistrial for
the allegedly incurable prejudice Mayo suffered by the Commonwealth's
repeated references to Mayo's past contacts with law enforcement. Mayo's
counsel also argued that the Commonwealth's questions concerned prior bad
acts for which it had not received notice. The trial court denied the motion for
mistrial and permitted the Commonwealth to ask if Mayo had been arrested at
the victim's behest a week before the rape to rebut Mayo's contention that he
did not have a problem with alcohol during that time period. The trial court
did not permit the Commonwealth to ask if Mayo had been convicted as a
result of that arrest. The Commonwealth then asked Mayo if the victim had
had him arrested for AI a week before the rape, to which Mayo responded yes.
The Commonwealth then asked if Mayo had spent the night in jail, to which
Mayo again responded yes.
Having established the facts surrounding the motion for a mistrial, we
now turn our attention to the legal standard for granting a mistrial. A mistrial
is an extreme remedy that should be granted only upon a showing of manifest
necessity. 14 A reviewing court may only disturb a trial court's decision to
grant, or refuse to grant, a mistrial if the trial court's decision is an abuse of
discretion . 15 We do not believe the trial court abused its discretion by denying
a mistrial in this case .
The victim testified that she did not allow drinking in her home . She also
testified that she knew Mayo had a bottle of vodka on his person in the time
period immediately preceding the rape. The Commonwealth's intent, as stated
in its brief, was to impeach Mayo on cross-examination by casting doubt on his
version of the events surrounding the rape - that the victim did not object to
his drinking and that he and the victim had enjoyed sexual relations in the
hours before the rape as an act of marital reconciliation .
We question, however, the necessity of an inquiry into the particulars of
Mayo's arrest record . In order to impeach Mayo's version of events, the jury
did not need to be informed of the number of AI arrests in Mayo's past,
especially since some of those arrests could have been remote in time to the
rape . And the victim had made references in her testimony to Mayo's alcohol
use. So general questions concerning whether Mayo's alleged drinking problem
had caused marital discord between Mayo and the victim would have been
sufficient for impeachment purposes without raising the specter of KRE 404 .
But even if we accept for the sake of analysis that the Commonwealth's
questions regarding Mayo's arrest record and alleged problems with alcohol
14
15
Graves v. Commonwealth, 285 S.W.3d 734, 737 (Ky. 2009) .
Id.
were improper and contrary to KRE 404, we do not conclude that any error was
so egregious as to necessitate a mistrial . 16 The victim testified that Mayo
purchased vodka shortly before the rape and that he had likely consumed
some of that vodka. Mayo largely corroborated that version of events . In light
of all the properly admitted evidence against Mayo, we do not believe the trial
court erred by determining that a mistrial was not necessitated because any
error in the Commonwealth's questioning was not so egregious as to
undermine the basic fairness of Mayo's trial.
For the same reason, we decline to hold that any error in this regard
entitles Mayo to relief. To the extent the issue of facial admissibility of evidence
is preserved, any error is harmless because we conclude that the evidence in
question did not substantially sway the jury's verdict in light of the strong
16
The Commonwealth contends KRE 404 is inapplicable because the evidence of
Mayo's alcohol consumption and related legal entanglements was not used to show
a propensity that he raped the victim but was, instead, offered only to rebut Mayo's
contention that the victim fabricated her story to punish Mayo. But the precise
nature and number of Mayo's past alcohol-related arrests would appear to be
collateral to the question of whether he raped the victim, especially because Mayo
had admitted to having purchased vodka shortly before the rape . And no one has
cited anything to show that the alcohol-related arrests in question resulted in any
felony convictions . See KRE 609(a) (permitting impeachment of a witness based
upon a past felony conviction) ; Slaven v. Commonwealth, 962 S.W.2d 845, 859 (Ky.
1997) ("Only felony convictions can be used for impeachment in Kentucky. . . .") .
During the bench conference on Mayo's motion for a mistrial, the trial court even
characterized the issue regarding whether Mayo had a drinking problem as being a
"relatively minor point." So it appears that the Commonwealth's persistent
questioning regarding the specifics of Mayo's arrest record was attempted
impeachment on a collateral matter. See, e.g., Rowe v. Commonwealth, 50 S .W.3d
216, 223-24 (Ky.App . 2001) (discussing prohibition on impeachment on collateral
matter) . And we question the Commonwealth's contention that its detailed
questioning about Mayo's history with the criminal justice system falls outside
KRE 404; but we need not definitively so hold because Mayo is not entitled to relief,
regardless of whether the testimony at issue falls nicely under KRE 404.
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court remarked that it did not understand the reason for the objection and
invited counsel to the bench.
At that bench conference, Mayo's counsel stated that the
Commonwealth's intimation to the jury that a good jury would find Mayo guilty
was improper . The Commonwealth responded that it was not sure what the
problem was but that it would "fix it." The trial court did not make a formal
ruling on the objection . And Mayo requested no formal ruling . Instead, the
trial court merely dispatched the Commonwealth forward to "fix it."
Immediately, the Commonwealth addressed the jury and feigned fault for
assuming that this jury was going to be a good jury. Mayo's counsel objected.
Instead of returning to the bench for clarification, the Commonwealth gestured
toward Mayo's counsel and asked her - in full view and hearing of the jury "Is it your belief they are not a good jury?" The trial court then implored
counsel: "Let's don't go into all that. Just, just move on to something else ."
Mayo's counsel, however, approached the bench and asked for an admonition
that a good jury was a jury that considered all the facts and rendered the
verdict it believed was appropriate . The Commonwealth stated it had no
objection to such an admonition, after which the trial court admonished the
jury that it would be a good jury whichever verdict it returned . Mayo requested
no further relief.
Mayo's second basis for relief based upon prosecutorial misconduct
stems from the Commonwealth's cross-examination of Mayo. Although his
brief is thin on the subject, Mayo argues that the Commonwealth erred during
its cross-examination of Mayo by "engag[ing] in a series of question[s] implying
that defense counsel had acted improperly in preparing Mayo to testify."
Mayo has not cited to any specific portions of the record that contain
such statements by the Commonwealth . Instead, Mayo points to his motion for
a mistrial in which one of the stated grounds was the Commonwealth's alleged
references to defense counsel improperly preparing Mayo to testify. Even
though the Commonwealth pointed out Mayo's brief's noncompliance with
CR 76 .12, Mayo did not file a reply brief in an attempt to correct his oversight.
We would be justified in disregarding this claim of error because counsel must
sift through a record to show the reviewing court the basis for a claim for relief.
But we did view Mayo's cross-examination in the course of resolving,other
issues in this appeal and, through that process, observed the Commonwealth
ask Mayo whether he had, in preparation for testifying, been given by his
attorney a copy of the transcript of an interview Mayo had with a detective.
Because Mayo has failed to direct us to anything more specific in the record
underlying this claim for relief, we shall assume that that question by the
Commonwealth is at issue in this appeal. 19 Again, we caution counsel in the
future to comply with all briefing requirements set forth in CR 76 .12 .
19
At the bench conference on Mayo's motion for a mistrial, the Commonwealth did
refer to Mayo's direct testimony as being "pre-prepared ." But that possibly
accusatory statement by the Commonwealth was made outside the hearing of the
jury and could not have caused any prejudice to Mayo .
b. No entitlement to relieffor prosecutor's misconduct.
We begin our analysis by reciting the proper standard required for relief
to be granted because of prosecutorial misconduct occurring during closing
argument . An appellate court may reverse for prosecutorial misconduct
occurring during closing argument only if the misconduct is "flagrant" or if:
(1) the proof of guilt is not overwhelming, (2) an objection is made, and (3) the
trial court failed to admonish the jury after sustaining the objection . 2 o
Mayo cannot meet all three elements of the test for non-flagrant
prosecutorial misconduct. Setting aside the issue of whether the proof of
Mayo's guilt was overwhelming, the trial court did admonish the jury - at
Mayo's request - and Mayo expressed no dissatisfaction with the admonition,
nor did Mayo request additional relief. An admonition is presumed to cure
improper comments, and a jury is presumed to follow such an admonition. 21
And a failure to ask for a mistrial following an objection and admonition from
the trial court indicates satisfactory relief was granted . 22 So Mayo is not
entitled to relief for non-flagrant prosecutorial misconduct for the "good jury"
comments .
Mayo is also not entitled to relief based upon the other comments in
question, which Mayo perceives as having been a veiled accusation by the
Commonwealth that defense counsel had improperly prepared, coached, or
20
21
22
Barnes v. Commonwealth, 91 S.W.3d 564, 568 (Ky. 2002) .
Torrence v . Commonwealth, 269 S .W.3d 842, 845 (Ky. 2008) .
Id.
even scripted Mayo for his trial testimony. There is certainly nothing
inherently improper with defense counsel discussing a case with his or her
client in preparation for that defendant taking the witness stand. And a direct
accusation that an attorney had improperly coached the client may well be
improper unless there was a satisfactory evidentiary basis for such an
incendiary accusation . But we do not construe the Commonwealth's
comments regarding whether his counsel had provided Mayo with a copy of the
transcript of Mayo's conversation with a detective as being a direct accusation
of wrongdoing by Mayo's counsel. 23 To the contrary, the question was part of
an extended attempt by a frustrated prosecutor to get Mayo to say whether he
had reviewed a transcript of his interview with a detective so that the
prosecutor could refer to that transcript while cross-examining Mayo . In short,
we conclude that nothing said in the jury's earshot regarding counsel's
preparation of Mayo for his testimony was misconduct, flagrant or otherwise .
Having found that none of the comments support relief as non-flagrant
misconduct, we now turn to whether they rise to the level of flagrant
misconduct . Although we strongly disapprove of the Commonwealth's asking
defense counsel if she thought the jury was not a good jury, we do not believe
23
The Commonwealth's comment at the bench that Mayo's direct examination was
"pre-packaged" could perhaps be construed as such a direct accusation of
wrongdoing . At best, that comment showed a lack of decorum and civility from the
Commonwealth to defense counsel. But Mayo suffered no prejudice from that
comment because it was uttered outside the jury's earshot . And we trust the
Commonwealth will refrain from making such seemingly accusatory comments in
the future unless it has a compelling evidentiary basis for doing so.
that unfortunate statement merits reversal of Mayo's convictions. So we
conclude the comments are misconduct, but not flagrant misconduct .
We use a four-part test to determine if a prosecutor's improper
comments rise to the level of flagrant misconduct . The four factors of this
flagrancy test are as follows: "(1) whether the remarks tended to mislead the
jury or to prejudice the accused ; (2) whether they were isolated or extensive;
(3) whether they were deliberately or accidentally placed before the jury; and
(4) the strength of the evidence against the accused." 24
Of course, this four-part test applies only if a court has determined that
a prosecutor's comments were improper . The prosecutor's asking defense
counsel within the jury's earshot whether she did not believe the jury to be a
"good jury" was inarguably improper . So we shall apply the four-part test to
determine if the impropriety rises to the level of flagrant misconduct .
As to the first factor, we do not believe the jury was misled by the "good
jury" remarks, especially since the trial court admonished the jury that a good
jury returned whatever verdict it believed was warranted by the evidence. But
the Commonwealth's questioning defense counsel about whether she believed
the jury was a "good jury" would appear to have been prejudicial to Mayo . No
reasonable juror would want to be considered anything but a "good" juror, and
it certainly was not to Mayo's benefit for the Commonwealth to insinuate that
4
Hannah v. Commonwealth, 306 S.W.3d 509, 518 (Ky . 2010) (quotation marks and
citation omitted) .
Mayo's counsel did not believe these jurors comprised a "good" jury. This
factor weighs in Mayo's behalf.
As to the second factor, the comments were isolated . These "good jury"
comments, including the bench conference where Mayo's counsel requested an
admonition, took up only a couple of minutes out of a two-day trial. This factor
weighs in the Commonwealth's behalf.
As to the third factor, we must conclude that the comments were
deliberately placed before the jury. Neither our review of the video record nor
the Commonwealth's brief indicates anything that would even hint, much less
definitively show, that the Commonwealth's direct question to Mayo's counsel
about whether she considered the jury to be a "good jury" was anything other
than deliberate. As Mayo notes in his brief, "[i]t is inconceivable that the
prosecutor had any good faith basis in questioning defense counsel in front of
the jury during closing . . . if defense counsel `thought this was a good jury. "7
This factor weighs in Mayo's favor.
The fourth factor is the weight of the evidence against Mayo . The victim's
testimony was direct and damning. And the Commonwealth produced medical
evidence showing physical injuries to the victim, as well as other witnesses who
testified to Mayo seeming angry and aggressive immediately after the rape . So
we conclude that the evidence against Mayo was strong, meaning that this
factor weighs on behalf of the Commonwealth .
.
We are faced, therefore, with two factors weighing on behalf of Mayo and
two factors weighing on behalf of the Commonwealth . Given this state of
relative equipoise concerning the specialized test for flagrant prosecutorial
misconduct during closing argument, we must use the general test for whether
relief for prosecutorial misconduct is proper: an examination of the trial as a
whole to determine if the improper comments undermined the essential
fairness of Mayo's trial . 25
We have taken into account the fact that the trial court took swift
corrective action by admonishing the jury about what actually constitutes a
"good jury." And Mayo received all the relief he sought from the trial court. So
we decline to find on appeal that the trial court should have taken the initiative
to grant Mayo additional relief. In short, we conclude that the unfortunate
comments of the Commonwealth were not so egregious as to have undermined
the essential fairness of Mayo's trial . But we strongly caution the
Commonwealth in the future to avoid directing these types of personal
comments toward defense counsel or to intimate to any jury that a "good jury"
would return a guilty verdict.
C. No Error in Failure to Ask Defendant if he Desired to Poll Jury.
Immediately after the trial court announced the jury's verdict in the guilt
phase, the trial court asked if either side wanted to review the verdict. Counsel
for both sides approached the bench and viewed the verdict forms . Neither the
as Torrence, 269 S .W.3d at 844 ("our focus in claims of prosecutorial misconduct is
on whether the trial as a whole was fair.") .
Commonwealth nor defense counsel voiced any objection to the completed
verdict forms, nor did either side request to poll the jury. The trial then
proceeded to the penalty phase. On appeal, Mayo claims that he is entitled to
relief because there is no affirmative showing that he waived his right to poll
the jury . We disagree.
Well over one hundred years ago, our predecessor court forcefully held
that "[t]he right to poll the jury in criminal causes has in this state always been
deemed an essential part of the right of trial by jury." 26 That ancient right is
currently codified in RCr 9 .88, which provides, in relevant part, "[w]hen the
verdict is announced, either party may require the jury to be polled, which is
done by the clerk's or court's asking each juror if it is his or her verdict." But
longstanding precedent also clearly holds that "the poll of the jurors is a
permissive right which may be waived." 27
We decline Mayo's invitation to require a criminal defendant to
affirmatively waive his or her right to poll the jury. Nothing in the plain
language of RCr 9 .88 requires a trial court to ask a criminal defendant if the
defendant desires to waive the right to poll the jury, and Mayo has not pointed
to any other authority that would require such an affirmative waiver . In
reality, the general rule seems to be that a right to poll the jury is deemed
waived in the absence of a timely request.28
26
27
28
Temple v. Commonwealth, 77 Ky. 769, 771, 1879 WL 6665 at *2 (1879) .
Powell v. Commonwealth, 346 S.W.2d 731, 733 (Ky. 1961) .
23A C .J.S. Criminal Law § 1886 (2010) ; 21A AmJur .2d Criminal Law § 1214
(2010) ("The right to have the jury polled may be waived, either affirmatively or by
We agree with, and hereby adopt, the consensus viewpoint that a
defendant's right to poll the jury will generally be deemed to have been validly
waived if the defendant does not timely request the polling of the jury . In other
words, a defendant may not sit on his rights only later to ask an appellate
court for relief. Instead, the burden is on the defendant to assert affirmatively
and timely his right to poll the jury. Since Mayo made no request to poll the
jury, despite having had ample opportunity to do so, the trial court did not err
by not asking Mayo if he desired to waive the polling of the jury .
D. No Error in Correcting Verdict Forms During Deliberations.
During penalty-phase deliberations, the jury sent a note to the trial court
stating that the instructions contained typographical errors: incorrect
numbering and a missing signature line. Mayo's counsel stated that she did
not have a copy of the instructions so she could not see what the alleged
problems might be . So, without objection and seemingly at Mayo's counsel's
suggestion, the trial court directed a bailiff to retrieve the instructions from the
jury so that the trial court and all counsel could review them. The review
disclosed that the jury had completed the verdict forms concerning the
penalties for rape and PFO 2 but had not addressed the penalty for sodomy in
the first degree . The trial court corrected the typographical errors and returned
the instructions and verdict forms to the jury so that they could complete their
deliberations .
inaction . Failure to make a timely demand or request for a poll, where there has
been reasonable opportunity to do so, operates as a waiver of the right.") (internal
footnotes omitted) .
Mayo's counsel objected, saying that she had not known the jury verdict
forms were partially completed when she agreed to have the instructions
brought into the courtroom . Mayo's counsel did not make a particularized
objection . Instead, she merely observed that the procedure was "funky" and
"highly irregular."
Mayo's counsel noted that she was unaware of the precise
nature of any error, but she was objecting to preserve whatever error may exist
for appellate review .
On appeal, Mayo contends that he is entitled to relief because the jury
failed to follow their instructions because they recommended a penalty for the
PFO 2 charge without first having recommended a penalty for the sodomy
charge . We disagree.
Mayo's general objection to the trial court was not based upon any
specific legal ground. So he has improperly presented a different basis for
objection on appeal. 29 Since the grounds for the objection were never properly
brought to the trial court's attention, our review is limited to determining if any
error rises to the level of being a palpable error. 30
Even if we assume for discussion purposes that better practice would
have been for the jury to complete the forms for the underlying rape and
sodomy convictions before it turned its attention to the PFO 2 charge, Mayo is
not entitled to relief. Mayo has pointed to absolutely no prejudice stemming
29
30
See, e.g., Commonwealth v. .Duke, 750 S.W.2d 432, 433 (Ky. 1988) ("A defendant
cannot pursue one theory at the trial court level and another on the appellate
review .") .
Mayo would not be entitled to relief even if we deemed this issue to have been
properly preserved.
from the trial court's actions. The jury's recommended penalty for all
convictions was within the legal limits. In fact, the jury's recommendation of a
twenty-year sentence for the PFO 2 conviction was the minimum possible
sentence. So we cannot say that the jury's failure to record a verdict on the
form for the underlying sodomy charge before recording a verdict on the form
for the PFO 2 charge undermined the fairness of Mayo's trial or was such an
egregious error as to be shocking or jurisprudentially intolerable .31 In fact, we
have noted our approval of a trial court similarly correcting erroneous jury
instructions during jury deliberations . 32 Mayo is not entitled to relief on this
issue.
111. CONCLUSION.
For the foregoing reasons, we affirm the trial court's judgment.
All sitting. Abramson, Cunningham, Schroder, Scott, and Venters, JJ .,
concur . Noble, J ., concurs in result only.
31
32
Martin, 207 S .W.3d at 4 .
Garner v. Commonwealth, 645 S .W.2d 705, 707 (Ky. 1983) ("The second error
assigned by appellant arises from the following circumstances. The court had
furnished the jury with erroneous instructions following the PFO phase of the trial.
This error was discovered before the jury returned to give its verdict and amended
instructions were prepared by the court. The jury was then brought out of the jury
room and into open court in order to give them the amended instructions and the
jury informed the judge that they had already fixed a punishment under the
erroneous instruction. The court ordered the jury not to disclose its verdict and
sent them back to the jury room with the amended instructions . The present
verdict resulted . . . . [T]he action of the trial is not only free of error but also
laudatory .") .
COUNSEL FOR APPELLANT:
William F. McGee, Jr.
P. 0. Box 39
Smithland, Kentucky 42081
COUNSEL FOR APPELLEE :
Jack Conway
Attorney General of Kentuc
Heather Michelle Fryman
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601
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