KENIELLE FINCH V. COMMONWEALTH OF KENTUCKYAnnotate this Case
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
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ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
RENDERED : MARCH 24, 2011
NOT TO BE PUBLISHED
ON APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE FREDERIC J. COWAN, JUDGE
COMMONWEALTH OF KENTUCKY
MEMORANDUM OPINION OF THE COURT
While fleeing police in downtown Louisville, Kenielle Finch drove through
an intersection, striking and killing two pedestrians and injuring a third. On
charges arising from this incident, a circuit court jury convicted Finch of two
counts of murder, first-degree assault, and other crimes, including fleeing and
evading police . He was sentenced to life in prison .
Finch now appeals as a matter of right,l contending that the judgment
must be reversed because the trial court (1) abused its discretion when it
allowed the Commonwealth to introduce four prior incidents in which Finch
used a motor vehicle to flee from the police and (2) committed reversible error
for failure to grant a mistrial when a witness testified about a matter the trial
Ky. Const. ~ 110(2) (b) .
court specifically excluded . We disagree with Finch's contentions on appeal
and affirm the trial court's judgment .
I. FACTUAL AND PROCEDURAL HISTORY.
Finch borrowed a 1993 blue Pontiac Grand Am from Keynisha Butler to
run errands. Later that same day, Officer Darrell Hyche attempted to stop
Finch in that vehicle for a traffic violation.
In response to Officer Hyche's signal, Finch stopped at the intersection of
Floyd Street and Central Avenue but sped away on Floyd Street as the officer
approached . Officer Hyche pursued on Floyd Street.
Finch raced straight down Floyd Street toward its intersection with
Warnock Street where three pedestrians waited to cross the street. As the
pedestrians stepped from the curb, Finch ran the red light at the intersection
and struck the three pedestrians: Angela Wadlington, who was walking with
her five-year old daughter, Claudia, and her four-year old niece, Riley
Lawrence . Several people witnessed the incident.
Upon reaching the intersection, Officer Hyche abandoned the chase of
the blue Grand AM to provide assistance to the pedestrians . Both children
died, and Angela suffered multiple broken bones.
Another officer later spotted the blue Grand Am parked one block north
of the scene of the accident. At the time, the Grand Am sat with its doors
closed, engine running, and windshield wipers engaged . The car had visible
damage to the front, right side of the vehicle ; and parts of the car were later
recovered from the intersection at Floyd and Warnock Streets . Police officers
traced the license plate to Keynisha Butler. Officers drove to Butler's
apartment where they heard about Finch's use of the Grand Am that day and
of his possible whereabouts .
As the police were leaving Butler's apartment, observers alerted them to
the fact that Finch was the passenger in an automobile located in the
apartment's parking lot. Finch fled that location in that automobile, and the
police gave chase . At some point, Finch jumped from the automobile and ran.
Eventually, officers found Finch hiding in -a drainpipe . Finch made a final
attempt to flee the officers by running into an open area where he was
discovered lying down in a field of overgrown weeds .
The grand jury indicted Finch on two counts of murder, assault in the
first degree, fleeing or evading police in the first degree, failure to stop and
render aid, tampering with physical evidence, assault in the third degree,
second-degree fleeing or evading police, no insurance, no operator's license,
reckless driving, two counts of disregarding a traffic control device, and of
being a second-degree persistent felony offender (PFO) .
After several days of trial, the jury convicted Finch on two counts of
murder, assault first-degree, fleeing and evading police first degree, tampering
with physical evidence, fleeing and evading police second-degree, failure to stop
and render aid, two counts of disregarding a traffic control device, and being a
second-degree PFO . The jury recommended the maximum sentence, and the
trial court sentenced Finch to life in prison .
A. The Trial Court Did Not Abuse its Discretion by Admitting Evidence of
Four Prior Convictions in Which Finch Used a Motor Vehicle to Flee
From Police .
Before trial, the Commonwealth gave notice of its intention to introduce
seven earlier convictions and a pending charge to show Finch's long history of
fleeing from police . 2 Finch's trial counsel argued these earlier convictions were
not relevant to prove Finch's identity as the driver, fleeing was not Finch's
signature crime, and the prejudicial nature of the convictions outweighed any
probative value. After a hearing, the trial court issued a KRE 404(b) order
permitting the Commonwealth to introduce four of Finch's prior convictions .
The trial court excluded convictions in which Finch did not use an automobile
to flee law enforcement. Finch presents the same arguments on appeal that
were argued before the trial court.
As a general rule, the proper standard of review for evidentiary rulings is
abuse of discretion .3 Specifically, we must consider whether the trial court
abused its discretion 4 when this Court reviews trial court decisions related to
KRE 404(b) . KRE 404(b) provides that evidence an-individual committed other
See Kentucky Rules of Evidence (KRE) 404(c) .
Goodyear Tire and Rubber Co. v. Thompson, 11 S .W .3d 575, 577 (Ky. 2000) .
Commonwealth v. English, 993 S .W.2d 941, 945 (Ky. 1999) ("The test for abuse of
discretion is whether the trial judge's decision was arbitrary, unreasonable, or
unsupported by sound legal principles.") .
crimes is inadmissible unless that evidence falls within an exception to the
rules and states, in pertinent part:
Other crimes, wrongs, or acts . 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
(1) If offered for some other purpose, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident . . . .
This Court developed an analysis that the trial court must utilize when
determining the admissibility of acts that might fall into the KRE 404(b)
category in Bell v. Commonwealth'6 The analysis is three-part and considers
the (1) relevance, (2) probativeness, and (3) prejudicial effect of the evidence at
issue .7 Regarding the matter before us, the trial court properly considered all
parts of the test.
The Bell Analysis.
On the issue of relevance, the trial court found the four convictions in
which Finch fled from the police in a motor vehicle exhibited relevance
concerning the Commonwealth's burden of proof in Finch's prosecution.
Because Finch was charged with murder, the Commonwealth bore the burden
of proving that Finch operated "a motor vehicle under circumstances
manifesting extreme indifference to human life [and] wantonly engage[d] in
conduct which create[d] a grave risk of death to another person and thereby
Bell v. Commonwealth, 875 S .W.2d 882, 889 (Ky. 1994) ; See generally, Tamme v.
Commonwealth, 973 S.W.2d 13, 29 (Ky. 1998) (stating the list of exceptions in
KRE 404(b) is not exhaustive of all permissible uses) .
875 S.W.2d 882 (Ky. 1994) .
Id. at 889 .
cause[d] the death of another person."8 The trial court found that the earlier
incidents of fleeing the police were relevant to the Commonwealth's burden of
proving Finch acted wantonly .9 Specifically, the previous incidents indicated
Finch possessed knowledge about operating a vehicle in flight from law
enforcement, understood the risks related to causing accidents or injury to
others, and may have acted with conscious disregard of the innate dangers
associated with such activity .
The trial court described the probativeness prong of the Bell test as
addressing whether the other crimes evidence was, "probative of the
Defendant's guilt in the other crimes ."lo In Bell, the court needed to determine
the propriety of permitting testimony detailing an uncharged act. ll
Consequently, the analysis developed in Bell was whether the evidence is
sufficiently probative of the uncharged act to warrant its introduction . 12 As a
part of the trial court's analysis of probativeness, it must decide whether the
uncharged act or other crime possesses a sufficient factual background to
Kentucky Revised Statues (KRS) 507 .020() .
KRS 501 .020(3) . ("A person acts wantonly with respect to a result or to a
circumstance described by a statute defining an offense when he is aware of and
consciously disregards a substantial and unjustifiable risk that the result will
occur or that the circumstance exists . The risk must be of such nature and degree
that disregard thereof constitutes a gross deviation from the standard of conduct
that a reasonable person would observe in the situation. A person who creates
such a risk but is unaware thereof solely by reason of voluntary intoxication also
acts wantonly with respect thereto .")
875 S.W.2d at 890 .
Id. See generally, ROBERT G. LAwsON, THE KENTUCKY EVIDENCE LAW HANDBOOK, § 2 .25
(4th ed. 2003) (Professor Lawson generally describes the formula for this balancing
test. Specifically, he alludes that the probativeness prong most often relates to
evidence of uncharged crimes and their admissibility.) .
indicate reliability, not whether it is probative of the current charge before the
The convictions in question possess strong indicia of reliability. Unlike
an uncharged act, a conviction is a methodical result of fact and law. Finch
was charged and convicted for the crimes -the Commonwealth sought to
introduce at trial. Evidence of other crimes can be allowed by the trial judge
upon belief that "the jury could reasonably infer that the prior bad acts
occurred and that [the defendant] committed such acts ."13 Finch's convictions
lead to a conclusion prior bad acts occurred, and Finch was held criminally
responsible for them.
Finally, the trial court was required to engage in a routine balancing test:
does the prejudice to the defendant substantially outweigh the probative
nature of the evidence? Specifically, would the introduction of Finch's prior
convictions be so suggestive to a jury that Finch would be prejudiced to a
degree impairing his fundamental due process rights? To determine whether
the introduction of the evidence would be unduly prejudicial, the trial court
considered whether the Commonwealth would attempt to use the convictions
as evidence that. Finch committed the current charged offenses .
The trial court appropriately concluded the admission of the convictions
was proper for the purposes of showing the defendant's awareness and
conscious disregard of the risk of leading a high-speed chase in an urban area.
Furthermore, the earlier convictions were greatly significant to the
Parker v. Commonwealth, 952 S.W.2d 209, 214 (Ky. 1997) .
Commonwealth's case because it bore the burden of proving beyond a
reasonable doubt that Finch acted in a wanton manner .
The trial court carefully considered the Commonwealth's motion to
present to the jury seven convictions and one pending charge for fleeing from
law enforcement. After applying the three-part analysis detailed in
court imposed restraints on the Commonwealth by limiting admission of othercrimes evidence to Finch's four convictions for fleeing while operating a motor
vehicle. In addition to restricting which convictions could be presented to the
jury, the trial court admonished the jurors to consider the prior convictions
only for the purpose of determining Finch's intent.
Because the court properly evaluated the issues of relevance,
probativeness, and prejudice ; limited the introduction of charges to those
instances in which Finch was convicted of fleeing from law enforcement in a
vehicle; and admonished the jury to consider the convictions in an appropriate
manner, the trial court did not abuse its discretion .
B. The Trial Court Did Not Err by Failing to Grant a Mistrial When a
Witness Testified to a Matter that the Trial Court Excluded .
Finch contends the trial court committed reversible error by not granting
a mistrial when a witness testified in contravention of the trial court's
KRE 404(b) order. As previously discussed, the trial court's KRE 404(b) order
prevented the Commonwealth from introducing three prior convictions of
Finch's in which he fled from the police but did so on foot or bicycle . In its
discretion, the court determined the use of these convictions was not
appropriate in this trial. On appeal, the standard of review for a decision
denying a mistrial is abuse of discretion . 14
Sergeant Hensler was one of the Commonwealth's KRE 404(b) witnesses .
Although any testimony regarding Finch ever fleeing on foot was excluded, 15
Sergeant Hensler made reference during his testimony to an occasion in which
he chased Finch on foot for two and half city blocks . Sergeant Hensler
appropriately testified to an occasion in 2001 when he observed Finch speeding
away from police officers and running red lights . Near the conclusion of his
testimony regarding the incident, Sergeant Hensler mentioned that Finch
leaped from his moving vehicle to attempt an escape on foot while his driverless
car careened into a building. Immediately, defense counsel moved for a
mistrial ; but the trial court chose to admonish the jury as a curative measure
and proceed with the trial. 16
This Court has long accepted the proposition that a proper admonition is
curative of any erroneous admission of testimony or other trial irregularities,
and a jury is presumed to follow that admonition . 17 Two circumstances exist
in which an admonition's adequacy comes into question :
Maxie v. Commonwealth, 82 S.W.3d 860, 863 (Ky. 2002) (citing Gould v. Charlton
Co., Inc., 929 S.W .2d 734 (1996) .)
The Opinion and Order of the Trial Court, p. 6, declared, "[T]he Commonwealth
should be entitled to introduce evidence of behavior in which the Defendant was
fleeing in a vehicle or engaging in reckless behavior in a vehicle in an urban area."
The prosecutor explained she was unaware the KRE 404(b) order excluded a foot
chase subsequent to a vehicle chase.
Though the trial record is difficult to discern, it sounds as though defense counsel
ultimately accepted the trial court's decision to give an admonition.
Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003) ("A jury is presumed to
follow an admonition to disregard evidence and the admonition thus cures any
error." (citing Mills v. Commonwealth, 996 S.W.2d 473, 485 (Ky. 1999))) ; See
(1) when there is an overwhelming probability that the jury will be
unable to follow the court's admonition and there is a strong
likelihood that the effect of the inadmissible evidence would be
devastating to the defendant; or (2) when the question was asked
without a factual basis and was inflammatory or highly
We conclude neither inadequacy circumstance exists here .
Finch argues that the first circumstance is applicable to the matter at
hand because a jury could not ignore Sergeant Hensler's testimony that Finch
continued to flee on foot after exiting the vehicle . Finch believes the acquisition
of such knowledge might lead a jury necessarily to infer he was more likely to
flee and possess a wanton state of mind in the commission of the crimes for
which he was charged .
Unquestionably, the end of Sergeant Hensler's testimony exceeded the
scope of evidence permitted in the trial court's 404(b) order . And the trial court
tacitly acknowledged Sergeant Hensler's statement of gratuitous information by
giving an admonition to the jury, which stated:
I want to admonish you in relation to this witness's
testimony not to consider any testimony that he may have given
with respect to the defendant fleeing on foot in this particular
situation. So do not take into consideration in your deliberations
any testimony or evidence from this witness concerning the
defendant fleeing on foot. 19
Parker v. Commonwealth, 291 S.W.3d at 658 (Ky. 2009) (holding that the trial
court's admonition was a sufficient curative measure given the relatively brief
nature of the improper testimony in the context of a lengthy trial) ; Maxie,
82 S.W.3d at 863-64, (Ky. 2002) (stating that the appellant showed no actual
prejudice so it must be assumed the jury followed the trial court's admonition .) .
Johnson, 105 S .W.3d at 441 (Ky. 2003) (citations omitted) .
V.R. No. 5: 12/14/09; 11 :21 :4 .4 through 11 :22 :15 .
In adhering to precedent, this Court presumes an admonition performs
the curative, remedial function necessary when testimony exceeds admissible
standards during trial. The trial 'court's admonition specifically addressed the
excessive testimony, Sergeant Hensler's description of Finch fleeing on foot,
and advised the jury not to consider it. Taken within the totality of the trial,
the brief and unsolicited statement made by Sergeant Hensler was not
devastating to Finch . The Commonwealth introduced evidence of four
occasions in which Finch fled from law enforcement while operating a motor
vehicle . A reasonable person might conclude that an isolated instance of
fleeing police officers in an urban area sufficiently indicates wanton conduct .
Because the Commonwealth produced four convictions of Finch fleeing in an
automobile and several eyewitnesses of Finch driving the blue Grand Am that
struck the Vi c tims, 20 the brief -bit of information during the course of a multi-
Officer Hyche testified to engaging in high speed chase with Finch and observing
him strike three pedestrians . Barbara Cook testified to seeing a blue Grand Am
become airborne at a speed of around 50 miles per hour crossing a railroad near
the intersection where the accident occurred . At trial, she identified Finch as the
driver of that blue Grand Am. Juanita Landers saw a car strike three pedestrians
in her rearview mirror as she turned south onto Floyd Street on July 25, 2008 .
Shirley Johnson gave testimony that she saw a blue Grand Am driving
approximately 80-90 miles per hour speed through an intersection that three
pedestrians just entered. Ms . Johnson said she waited to see what happened
because she assumed the pedestrians had not reached the other side of the street.
Natalia Bishop testified that she saw a blue Grand Am strike three pedestrians and
drive away as she waited in her vehicle to turn right from Warnock onto Floyd
Street . Margaret Ross was behind Natalia Bishop at the intersection and she also
testified to seeing a blue car come through the intersection and strike a woman
and two children . Finally, Rebecca Jones was at a nearby McDonald's© when the
accident occurred . She heard a screech and a thud and saw a blue car driving
very fast away from the intersection .
day trial about him fleeing on foot cannot be considered devastating to Finch's
defense . 21
A motion to declare a mistrial invokes the sound discretion of the trial
court22 and "should only be granted when there is a `manifest necessity for
such action or an urgent real necessity. "'23 In the present case, the trial court
properly admonished the jury; and no reason exists for this Court to suspect
the admonition was ineffective . Based on the overwhelming amount of
evidence against Finch, the slight amount of information Sergeant Hensler
provided that exceeded the scope of the trial court's KRE 404(b) order did not
create a necessity for a new trial . The trial court acted soundly within its
For the foregoing reasons, the trial court's judgment is hereby affirmed.
All sitting . Minton, C .J . ; Abramson, Cunningham, Schroder, and Scott,
JJ ., concur . Noble and Venters, JJ., dissent.
Although Finch does not take issue with the second circumstance, Sergeant
Hensler responded to an appropriate question but shared too much information
regarding the conviction at issue . In the scope of the trial, Sergeant Hensler's extra
details of the event would not be inflammatory or highly prejudicial . Because the
second circumstance requires a question without a factual basis and an
inflammatory or highly prejudicial answer (Johnson, 105 S .W.3d at 441 (Ky. 2003)
(citations omitted)), we do not need to reach that discussion at this time . It is clear
Sergeant Hensler responded to an appropriately fact-based question by the
Commonwealth with a fact-based answer.
Gosser v. Commonwealth, 31 S .W.3d 897, 906 (Ky. 2000) .
COUNSEL FOR APPELLANT:
Cicely Jaracz Lambert
Assistant Appellate Defender
Office of the Louisville Metro Public Defender
717-719 West Jefferson Street
Louisville, Kentucky 40202
Daniel T. Goyette
Louisville Metro Public Defender
Public Defender Advocacy Plaza
717-719 West Jefferson Street
Louisville, Kentucky 40202
COUNSEL FOR APPELLEE:
Attorney General of Kentuc
Perry Thomas Ryan
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204