Martin v. Com.

• Decision Date: 25 August 2005
• Docket Number: No. 2004-SC-000718-MR.,2004-SC-000718-MR.
• Parties: Leonard MARTIN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

170 S.W.3d 374

Leonard MARTIN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2004-SC-000718-MR.

Supreme Court of Kentucky.

August 25, 2005.

COPYRIGHT MATERIAL OMITTED

Ned Barry Pillersdorf, Joseph R. Lane, Pillersdorf, Derossett & Lane, Prestonsburg, Counsel for Appellant.

Gregory D. Stumbo, Attorney General of Kentucky, Brian T. Judy, Assistant Attorney General, Criminal Appellate Division, Office of the Attorney General, Frankfort, Counsel for Appellee.

Appellant, Leonard Martin, was convicted of three counts of sexual abuse in the first degree and one count of sodomy in the first degree. The jury recommended a sentence of five years for each count of sexual abuse, for a total of fifteen years, and a sentence of twenty-five years for the sodomy count, the sentences to run concurrently. The court entered a judgment sentencing Appellant to serve twenty-five years. Appellant appeals to this Court as a matter of right,¹ asserting three claims of reversible error: (1) that double jeopardy bars Appellant's retrial; (2) that the Commonwealth's use of prior uncharged bad acts were not so similar to warrant their introduction and therefore prejudiced Appellant; and (3) other errors made by the trial court either alone, or cumulatively with the previous errors, so prejudiced Appellant that his conviction should be reversed. Having considered all of Appellant's claims of error, we affirm the conviction.

Appellant was charged with the sexual abuse and the sodomy of his five year old step-granddaughter L.H.² During the Christmas holiday of 2000-01, L.H. visited her biological grandmother and Appellant in Kentucky. Because L.H.'s grandmother became ill, L.H. spent a significant period of time with Appellant. During this time, Appellant sexually abused L.H. on numerous occasions. The incidents were described as consisting of Appellant rubbing L.H.'s private parts with his finger and his penis. Toward the end of L.H.'s visit, the Appellant coerced L.H. into performing oral sex on him. During each incident, L.H.'s grandmother was either asleep or had gone to the store. To induce L.H. to participate, Appellant always promised L.H. ice cream for allowing him to touch her. Following each occurrence, the Appellant warned L.H. that if she told anyone she would get in trouble. When the visit was over, L.H. returned to her home in Michigan. It was not until May of 2001, when another visit for the summer was arranged, that L.H. told her mother of the sexual abuse that had occurred over the last Christmas visit.

L.H.'s mother promptly contacted the Michigan police. Slowly, in bits and pieces, more accounts of sexual abuse were revealed by L.H. Upon being interviewed by authorities, L.H. told of times, prior to her visit to Kentucky, that Appellant had sexually abused her in Michigan. It wasn't until L.H. and her mother returned to Kentucky to pursue charges against Appellant that L.H. finally informed her mother of the sodomy. In October of 2003 Appellant was tried on three counts of first-degree sexual abuse and one count of first-degree sodomy. That trial ended in a mistrial upon motion by Appellant. When the Commonwealth retried Appellant on all counts the jury returned a guilty verdict and the court imposed a twenty-five year sentence.

I. DOUBLE JEOPARDY

Appellant first argues that he was tried a second time in violation of his rights under the Double Jeopardy Clauses.³ Appellant did not object prior to commencement of his second trial and he admits that his claim of error is unpreserved. However, double jeopardy questions may be reviewed on appeal despite failure to preserve the issue at trial.⁴ And in this case Appellant presents a discrete argument concerning alleged prosecutorial provocation.

Appellant's first trial came to an abrupt end with the trial court's declaration of a mistrial. The mistrial was granted following the Commonwealth's direct examination of witness, David Porter. Porter was called by the Commonwealth as a rebuttal witness to Appellant's cross-examination of the Commonwealth's witness, Iris Martin. Martin is the ex-wife of the Appellant and grandmother of the victim, L.H. Martin testified on cross-examination that she filed for divorce after the Appellant was arrested. Martin asserted that she filed her divorce petition before Appellant filed his. Upon this declaration, the defense introduced the Appellant's divorce petition in order to impeach Martin's testimony. The petition erroneously showed that Appellant was the first to file. Near the close of the Commonwealth's case in chief, the Commonwealth put David Porter on the stand. Porter was Iris Martin's divorce attorney. Through Porter, the Commonwealth presented evidence that Martin did indeed file her divorce petition first. Then, the Commonwealth continued its direct examination, "So if anyone, Mr. Porter, in this trial, including Mr. Patton [the defense attorney], would suggest that Iris Martin did not file for divorce, obviously would that be just completely untrue, patently false?" Mr. Porter responded, "That would be untrue, yes." The Commonwealth continued, "That would be something that clearly would mislead this jury?" Following this question by the Commonwealth, Appellant's counsel properly objected and the parties met in judge's chambers to discuss Appellant's motion for mistrial based on the Commonwealth's comment suggesting the defense was misleading the jury. After arguments were heard from both parties, the trial judge ordered a mistrial.

Appellant's double jeopardy argument is that the Commonwealth's question, which led to the declaration of the mistrial by the trial court, was overreaching and fundamentally unfair. Appellant asserts that the Commonwealth intended to provoke or goad Appellant into moving for a mistrial because the trial had several potential reversible errors. The Commonwealth argues in response that it was only rebutting an untruthful fact that was presented by Appellant and that there was absolutely no intent to provoke a mistrial.

The double jeopardy rule is that a motion for mistrial by a defendant removes the double jeopardy bar to retrial.⁵ However, there exists a limited exception where this bar will not be removed.⁶ The exception allows double jeopardy to bar retrial where the prosecutor's conduct intended to provoke the defendant into moving for a mistrial.⁷ "[T]he conduct giving rise to the order of mistrial [must be] precipitated by bad faith, overreaching or some other fundamentally unfair action of the prosecutor or the court."⁸

In the case before us, due to the requirement that double jeopardy questions be reviewed even if unpreserved,⁹ this Court has reluctantly examined the facts of the first trial in order to discern whether the Commonwealth intended to provoke Appellant into moving for a mistrial. When the mistrial occurred, the Commonwealth had entered its third day of presenting its case in chief. Earlier in the trial, following the cross-examination of Iris Martin, the defense moved for a mistrial based on Martin's continuous failure to refrain from making statements regarding Appellant's guilt. The trial judge overruled that motion and strongly admonished the jury to disregard the witness's comments. The trial judge warned the prosecutor that the issue of a mistrial might have to be revisited. David Porter was the Commonwealth's seventh and last likely witness. It was then that the Appellant made his second motion for a mistrial. In response to the motion, the Commonwealth defended its "misleading the jury" comment as merely rebuttal and clarification for the jury. The Commonwealth repeatedly apologized if the questioning was interpreted as intentional harassment of the defense. The trial judge's consideration of this second and final motion for a mistrial was thorough. The trial judge was quite reluctant to grant the motion but expressed the necessity for a mistrial. The trial court based its decision on the line of questioning, the fact the Commonwealth had named the defense attorney, and that the Commonwealth said that this would "clearly mislead the jury."

The actions taken by the Commonwealth during the questioning of witness David Porter may be described as inappropriate.¹⁰ However, with the proof before this Court, the scale weighs more heavily toward a mistake and not intentional provocation. The conduct by the prosecution does not rise to the level of bad faith, overreaching or such fundamental unfairness as so asserted by the Appellant. There is no indication that the prosecutor did not vigorously resist the defendant's motion for mistrial or that the trial court found the prosecutor intended to goad the defense. It is implausible to suggest that the Commonwealth intended to provoke a mistrial, not because it knew a conviction could not be obtained, but that a conviction would be obtained with attendant reversible error. Based on the actions by the Commonwealth, Appellant was granted the mistrial the trial court thought he deserved. However, there was no double jeopardy violation.

II. PRIOR BAD ACTS

Appellant's second argument surrounds the introduction of evidence of prior uncharged bad acts. The issue was preserved for review by the Appellant's pretrial and trial objections. The Appellant asserts that the trial court committed reversible error when it allowed the testimony of T.M.¹¹ and Lo.H.¹² to be used by the Commonwealth to prove modus operandi. The Appellant argues that the incidences involving T.M., Lo.H., and L.H., the victim in this case, were not strikingly similar. Further, he asserts that any facts the Commonwealth describes as strikingly similar would identify a substantial portion, if not the majority, of all cases involving child sexual abuse.

KRE 404(b) provides that evidence of other crimes, wrongs, or acts are not admissible to prove character. However, an exception to this rule is that evidence of other crimes, wrongs or acts may be admitted...