Commonwealth v. Padgett, 2017-SC-000441-DG

Decision Date13 December 2018
Docket Number2017-SC-000661-DG,2017-SC-000441-DG
Citation563 S.W.3d 639
Parties COMMONWEALTH of Kentucky, Appellant/Cross-Appellee v. Michael PADGETT, Appellee/Cross-Appellant
CourtUnited States State Supreme Court — District of Kentucky

COUNSEL FOR APPELLANT/CROSS APPELLEE: Andy Beshear, Attorney General of Kentucky, Thomas Allen Van De Rostyne, Assistant Attorney General.

COUNSEL FOR APPELLEE/CROSS APPELLANT: Emily Holt Rhorer, Assistant Public Advocate, Shannon Renee DuPree, Assistant Public Advocate.


After a mistrial, Michael Padgett was tried and convicted by a Daviess County jury for Assault, third degree. At his second trial, he was also charged and convicted as a persistent felony offender (PFO) in the first degree. The jury recommended an enhanced sentence of ten years. The circuit court sentenced Padgett accordingly. On direct appeal, the Court of Appeals vacated his sentence, finding that the second trial violated Padgett’s rights against double jeopardy. The Commonwealth moved this Court for discretionary review, which we granted. After careful review of the record and law, we now affirm the Court of Appeals.


On February 9, 2014, Padgett was housed at the Daviess County Detention Center (DCDC), in the B-pod. He was in a cell alone and covered the window to his cell, so that on-duty deputies could not see inside. He proceeded to kick the door, causing a loud disturbance. Deputies ordered Padgett to remove the obstruction in the window, but he refused. The officers entered Padgett’s cell, handcuffed him, and removed him from the cell to place him in the "Emergency Restraint Chair" (ERC). The ERC is a chair used to restrain prisoners when they are potential dangers to themselves or others; it binds them to their chair at several points (waist, feet, arms) so that the prisoner is prohibited from moving and causing potential damage. Chad Payne, then Sergeant Payne, was the supervising officer on duty. He responded to the scene as Padgett was being removed to the ERC. During the melee, Padgett spit in Payne’s face. Payne ordered another officer to tase Padgett and Padgett was then successfully restrained.

The Commonwealth disclosed two reports to the defense regarding Payne: (1) a report of excessive force with another inmate and (2) a write-up and demotion for making false and unauthorized statements. Payne was demoted from Sergeant to Deputy as a result of the second report. The Commonwealth moved, prior to trial, to exclude "the materials" as irrelevant. The defense objected, arguing that the report of excessive force was relevant to Padgett’s claim of self-defense and that both reports were admissible for impeachment purposes. On September 22, 2014, the court heard arguments on the motion. Relevantly, there was no written order from the court on this motion.1 The hearing itself was an amalgamation of multiple pre-trial issues including jury instructions and the availability of self-protection as a defense to third-degree assault; intertwined within these arguments was reference to the evidence regarding Payne. The trial judge’s order was not abundantly clear; however, at that time, the judge stated:

For impeachment purposes, that may be permitted but I'm just telling you, I don't see it right now. And all I can tell you is that on your motion, I can exclude it up to a point but during trial, depending upon what the testimony is, I very well might allow it. But I can't see it right now. I don't see me allowing that evidence in.

It would seem that what "may be permitted" were the reports on Payne’s disciplinary history. At the parties' questioning, the court continued:

Oh, it might [be relevant] if what he did was improper. I can't see it. I don't see it. But it might come off of the witness stand that somehow this was improper. I don't know. I don't hear-you haven't told me if - right now, I'm not going to admit that ... evidence as we sit here. You know. And I think there has to be something more ... But I don't want to preclude that. At trial, you never know what comes up half the time ...
I'll put it this way. If that evidence - that evidence, that information um will not be permitted at trial unless and the only thing that I think I can see as far as impeachment is somehow during the testimony of Sergeant Payne, maybe somebody else too, but at that point it becomes necessary - I can't see it. I - I don't see it. But I don't want to rule right now with finality, saying there’s no - under no situation or circumstances it’s not coming in -
Right. I'm saying that, unless there is something during the testimony or some evidence that somebody puts on that all of a sudden makes that significant and relevant, it’s not going to be used at trial.

In response to the court’s statements, defense counsel attempted to clarify further:

Judge, if I may address that - I think that you're talking on the disciplinary report? The write-up? Okay. As to the demotion - which is a separate issue, um, I did want to mention that, of course, anytime there’s instances of dishonesty that you cross-examine a witness on, usually it’s about things that aren't necessarily directly connected but you can always question somebody about their veracity and truthfulness ...

The parties then transitioned into discussion on self-protection as a defense to third-degree assault and self-defense in response to law enforcement.

Padgett proceeded to trial over the next two days. On the morning of September 24, 2014,2 the Commonwealth called Chad Payne to the witness stand. The direct examination proceeded without incident. The following exchange occurred during cross-examination, however:

DC3 : So you were a supervising officer at the time of this incident?
CP4 : [Nods ]
DC: And at the time of this incident, what was your rank?
CP: Sergeant.
DC: Are you a sergeant now?
CP: No.
CW5 : Approach, your Honor.
[At bench ]
TJ6 : What was the purpose of that?
DC: I was just inquiring about his rank. I'm not going any further.
TJ: You better not go any further.
DC: I'm not.
CW: Your Honor, you can't un-ring a bell. I have to ask for a mistrial. We have been over this and uh - [defense counsel] - we just went over this. This is totally uncalled for.
TJ: Yeah.
CW: And you cannot un-ring that bell. It is out there. It’s before this jury. And this has wasted two days of everybody’s time let alone a whole lot more.
DC: Judge, every time somebody gets up on that stand, they ask them where they worked, what their position is. We have to—
TJ: [Defense counsel], you know better than that.
DC: I'm not going any further. Judge, it ends right there.
CW: It’s done. That was the whole purpose. We talked about it prior to this before we started, your honor. That was totally [unintelligible ]. It was totally improper. I'm asking that we - I don't have a choice but to ask for a mistrial.
DC: Judge, I believe if the court wants to admonish the jury -
TJ: You know, we've gone over this.
CW: Can we take a recess?
TJ: Excellent idea. Then I can see you all in chambers.

The argument on the Commonwealth’s motion for mistrial was abbreviated:

TJ: [Defense counsel] has violated the conditions of an order I entered earlier and I don't see uh any justification whatsoever for that question. And uh, [the prosecutor] has moved for a mistrial. And uh- now I'm wondering whether I can grant a mistrial or whether an admonition would be appropriate. But uh I don't know what I can do.
DC27 : Your Honor, if I may - I - there’s not been any mention of a demotion or promotion, I think, at this point.
TJ: [laughing ] He just said it was!
DC2: No, what he said was are you - I'll let him—
DC: I asked him if he was a sergeant at the time. And then I asked him if he was no longer a sergeant. I didn't ask him if he’s moved up or down.
TJ: I don't see what the purpose of the question was.
DC: Judge, every single time the Commonwealth puts a deputy on -
TJ: I'm going to grant a mistrial. This is crazy. I - we, we told you from the beginning that we are not getting into that. And uh-well, I don't mean to get upset. But I just hate to waste all the time that we have on something -
DC: That wasn't my intention, Judge and I apologize -
TJ: There is no other - I have no other reason to expect that that question had anything other than to uh bring out the fact that Deputy Payne was demoted. I assume - there’s no other basis for it.
DC2: Your honor, I would respectfully request that we not do a mistrial. We are second day, we're nearly done. I believe an admonition is satisfactory. And we don't even have to go into any more about it. We can simply move on with the rest of this trial. I don't believe that anything more that’s been said is going to harm this jury. I think they just need to see the evidence, weigh it, and make a decision. I-I think that a mistrial is a step we don't need to take. I think that we are able to continue with this trial. DC: And Judge, I would ask, for the record, to be stated, what the implication is. If the implication is that he was demoted because of this incident, that’s simply remedied by them asking, were you sanctioned for this incident? We don't have to get any further for that.
CW: And Judge - we have - we have
TJ: We've already had -
CW: We've had that hearing, your honor - I'm sorry.
TJ: Yeah, yeah, we had. I'm going to grant a mistrial. And uh I don't want to do so. Um mistrials are rare. We um - a lot of time, a lot of expense, a lot of expense. And um this is - this is unnecessary. Inappropriate. Can you call the jury back in?

The court then dismissed the jury and thanked them for their service. After Padgett’s mistrial, the Commonwealth then indicted him as a PFO, first-degree. The parties proceeded to the second trial early the next year, at which Padgett was convicted of one count of third-degree assault. The jury recommended a sentence of one year to serve, but the sentence was enhanced to ten years after Padgett was found guilty on the PFO count. After the conviction was vacated by the Court of Appeals, ...

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