Radford v. Lovelace

• Decision Date: 15 June 2006
• Docket Number: No. 2005-SC-1024-MR.
• Citation: 212 S.W.3d 72
• Parties: Jimmie R. RADFORD, Appellant, v. Hon. Eddie C. LOVELACE, Judge Cumberland Circuit Court, Appellee, and Commonwealth of Kentucky, Real Party in Interest.
• Court: Supreme Court of Kentucky

212 S.W.3d 72

Jimmie R. RADFORD, Appellant, v.Hon. Eddie C. LOVELACE, Judge Cumberland Circuit Court, Appellee, and Commonwealth of Kentucky, Real Party in Interest.

No. 2005-SC-1024-MR.

Supreme Court of Kentucky.

June 15, 2006.

As Modified August 10, 2006.

Rehearing Denied February 22, 2007.

David A. Lambertus, Louisville, Counsel for Appellant.

Gregory D. Stumbo, Attorney General, Matthew R. Krygiel, Assistant Attorney General, Office of Criminal Appeals, Frankfort, Charlton Clay Hudley, Jr., Tompkinsville, Jesse M. Stockton, Jr., Albany, Counsel for Appellee.

Opinion of the Court by Justice SCOTT.

The Appellant, Jimmie R. Radford, appeals as a matter of right, CR76.36(7)(a), from an order of the Court of Appeals denying his petition for writ of prohibition to prevent his retrial on charges of one (1) count of forgery in the second degree in violation of KRS 516.030 and three (3) counts of theft by failure to make required disposition of property over three hundred dollars in violation of KRS 514.070.The Appellant argues that the trial court erroneously declared a mistrial without the "manifest necessity" necessary to do so, subjecting him to retrial after jeopardy had already attached, thus violating his constitutional right not be tried twice for the same offense under the Fifth Amendment of the Constitution of the United States and Section Thirteen of the Kentucky Constitution.

Based upon the evidence of record, we agree and grant the writ barring the retrial.

I.Facts and procedural background

The Appellant was indicted in the Cumberland Circuit Court on December 19, 2002.¹The jury trial began on July 26, 2004.On the second day, after the jury had been empanelled and the Commonwealth had called several witnesses, the Commonwealth approached the bench and notified the court that the Appellant's sister-in-law, Sherry Radford(Radford), had spoken with three of their forthcoming witnesses sometime before the trial date.The witnesses were Ms. Burchett, Ms. Morrison, and Ms. Rush.All were witnesses whose initials were contained on certain documents the Commonwealth alleged were forged.Apparently, they had told the Commonwealth about the calls.The trial court then took sworn testimony from the witnesses in chambers.

Burchett had worked for the Cumberland County Middle School for approximately four years as an instruction assistant and was one of the teachers that took up tickets during events.Radford also worked for the school.Burchett told the court that before she was interviewed by law enforcement officers, and before she even knew she would be a witness, or subpoenaed to testify by the Commonwealth, Radford had called her on the phone.During the conversation, Radford told her that the Appellant asked her to call and tell her that the "other side" would be contacting her.Radford also told her that all she needed to do, if they called, was answer yes or no to the questions they asked — she did not have to elaborate.²She testified that Radford did not ask her to lie to the Commonwealth, nor was she threatened or intimidated by Radford.She also testified that Radford did not ask her not to come to court or anything of that nature.

Morrison had worked at Cumberland County Middle School as a seventh grade language arts teacher for fourteen years.She had known Radford for a number of years.Morrison received a call from Radford about two weeks prior to trial.She stated that Radford called her on behalf of the Appellant to tell her that if the Commonwealth's Attorney's office called, she did not have to answer more than a simple yes or no to any questions asked of her.Radford also told her that anything that she said could be used against the Appellant in court.However, she was not asked to be absent from court or anything of that nature.Morrison told the court that the conversation was friendly, there were no threatening or intimidating comments, and Radford did not ask her to make up anything or to lie for the Appellant.³She said that she has had no contact with Radford since that phone conversation.

The last witness, Rush, was a cook at the Cumberland County High School.At the time of trial, she had worked for the school for eight years and had also participated in taking up tickets at events held at the school.Rush and Radford were friends and had worked together for seven years.She stated that about two weeks before trial, and before she was subpoenaed, Radford called her, per the request of the Appellant, to tell her she was going to be subpoenaed and, since Rush worked two jobs, she might need to ask off work to be available for trial.Radford also told her if she did not want to talk to the "other side" over the phone, she did not have to.Rush said the conversation was friendly, and that she was not asked to lie or to try to get out of testifying for the Commonwealth.She stated that there were no threats or encouragements to lie or not show up for court, just that she would be contacted and that she did not have to talk to them over the phone.⁴

The judge spoke to Radford last.Without being sworn in, but after being read her Miranda rights, Radford answered questions from the court.First, she denied she had contacted any of the witnesses.Then, she admitted to calling Morrison and Rush and telling them that they may be summoned to court, but denied talking about any specific questions or answers involving the case.⁵

According to the record, following the hearing, the judge took the bench and declared a mistrial on his own motion.Moreover, the briefs disclose that Radford has never been charged with any crime of obstruction of justice relating to her conduct in this case.

As to the declaration of a mistrial, the record does not disclose that the trial court mentioned in chambers that it was going to declare a mistrial.According to the record, the first mention by the trial court of a mistrial was from the bench when the trial court dismissed the jury.Therefore, there is no argument that the Appellant consented to the mistrial because the record does not provide any evidence that a mistrial was even discussed, or moved for by the Commonwealth, before the trial court dismissed the jury.Were it otherwise, one would expect such to be disclosed to the court in the briefs, or by supplementation of the record; it was not.Therefore, the Appellant's first chance to make an objection on the record was when the trial court had already disclosed the substance of the testimony heard in chambers, and concluded that "based upon this allegation that we heard in chambers, I am going to declare a mistrial."By this time, the prejudicial effects on the Appellant outweighed any need to make an objection to the point that the trial should continue.

Furthermore, RCr 9.22 states that if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice that party.This rule is almost identical to Federal Rule of Criminal Procedure 51(b), which provides, in part, that if a party does not have an opportunity to object to a ruling or order, the absence of an objection does not later prejudice that party.Therefore, when "the very first time there was mention of [a mistrial was] when the court[declared a mistrial,][i]t was clear ... that the time for argument was over [and the Appellant] simply could not [have] waive[d][his] opportunity to object when [he] was never given such an opportunity."United States v. Breeding,109 F.3d 308, 310(6th Cir.1997)(citingUnited States v. Hickey,917 F.2d 901, 906(6th Cir.1990)).In regards to an appropriate opportunity, one would not seriously argue for the right to have his client tried in front of the same jury that had listened to the trial court's comments on this matter.

On November 7, 2005, the Appellant filed a petition for writ of prohibition with the Court of Appeals, alleging the trial court lacked the "manifest necessity" necessary to declare a mistrial, and thus, his retrial would violate his constitutional rights of double jeopardy.On November 28, 2005, the Court of Appeals denied the writ.

In its opinion, the Court of Appeals held that the Appellant did not demonstrate that the trial court abused its discretion in granting a mistrial.Furthermore, without citations, it held that Radford's contact and conversations with the witnesses were inappropriate, thus validating the mistrial.

II.Writ of Prohibition

"A writ of prohibition is an `extraordinary remedy and we have always been cautious and conservative both in entertaining petitions for and in granting such relief.'"Grange Mutual Insurance Co. v. Trude,151 S.W.3d 803, 808(Ky.2004)(citingBender v. Eaton,343 S.W.2d 799(Ky.1961)).Writs are generally divided into two classes and are distinguished by "`whether the inferior court allegedly is (1) acting without jurisdiction (which includes "beyond its jurisdiction"), or (2) acting erroneously within its jurisdiction.'"Id.The second class applies to the case at hand because it is argued the trial court is about to act erroneously in allowing a retrial of the appellant.

"In the second class of cases relief ordinarily has not been granted unless the petitioner established, as conditions precedent, that he(a) had no adequate remedy by appeal or otherwise, and(b) would suffer great and irreparable injury."Bender v. Eaton,343 S.W.2d 799, 801(Ky.1961)."As a general rule, if he has an adequate remedy by appeal or otherwise, or will not suffer great and irreparable injury, the petition should be dismissed forthwith."Id.There is a third hybrid class, which is not pertinent here.SeeIndependent Order of Foresters v. Chauvin,175 S.W.3d 610, 615-6(Ky.2005).

The Supreme Court is given very broad supervisory control of lower courts by Section 110 of the Kentucky Constitution.However, its authority is limited by our judicial discretion, and we...