CAPERTON, JUDGE.
Joseph Earl Ratliff appeals from his conviction of arson in the second degree, burglary in the first degree, and felony theft by unlawful taking following a jury trial in Pike Circuit Court. Ratliff was sentenced to a total of fifteen years in prison. After a thorough review of the parties' arguments, the record, and the applicable law, we agree with Ratliff that reversible error occurred; accordingly, we reverse and remand this matter for further proceedings.
On March 9, 2006, Ishmal Ratliff's house burned down. At that time, the Appellant, Joseph Earl Ratliff (not related to the victim) and his grandfather
Kevin Alden, the owner of Matrix Investigation Group, conducted an investigation of the fire at Ishmal's house at the request of Kentucky Farm Bureau Insurance. Alden accessed the scene seven days after the fire; the scene had been unsecured during that time. Alden concluded that the cause of the fire was "undetermined," although he did observe a high energy arcing event in the breaker panel. Alden testified that an arcing event could be caused by a short, by the wires fusing together, a loose wire, or due to faulty equipment. Ishmal had wired his house himself and testified that he was certified in "low, medium, high voltage" for industrial purposes. The inspector who approved his residential work was deceased at the time of the trial. As a part of the report, Alden took statements from Ishmal and Bobby Ray. Ishmal apparently checked the breaker panel for heat by feeling with the back of his hand a couple times per week. Bobby Ray told Alden that he "unlocked front door, smoke and fire, about knocked him down" and "he saw fire in the living room."
Five years after the fire Ratliff was indicted for arson, burglary, and felony theft by unlawful taking. The Commonwealth's initial theory of the case was that Ratliff burglarized and then burned down Ishmal's home in revenge for Ishmal's involvement in the prosecution of Ratliff's brother, Todd. Todd had been convicted of receiving stolen property which had been taken from an outbuilding on Ishmal's property. The Commonwealth later theorized that the burglary had been in revenge but the arson had been motivated by fear that Ishmal had security cameras.
The Commonwealth began its case with Ishmal's testimony. At the time of trial, Ishmal alleged that guns, a game system, and a blue Black and Decker drill had been taken from his house. Ishmal noticed these things missing the day after the fire. He did not inform his insurance company or the police about the missing items. Instead, about three months after the fire, he informed Mr. Burchett, the Commonwealth's prosecutor in this case.
On June 30, 2006, Ishmal went to reclaim his guns; he had been told the guns were at Howard Conn's house and he was accompanied by Kentucky State Police officer Melissa Hampton. At the time of trial, Ms. Hampton had retired from KSP. She testified that Ishmal told her about a burglary and house burning when they went to the Conn's house, but she did not make a report. Ishmal testified that he told the previous KSP investigator, Don Parker, that he believed items were stolen but did not tell him any specifics. Parker did not testify at trial. Ishmal later stated that he could not remember what he told Parker at the time. The subsequent KSP investigator, Gary Sykes, testified that the case file he inherited from Parker was an arson investigation with no mention of burglary in the original case file.
Ishmal explained that he kept the information about what was stolen closely guarded because he wanted to ensure that if any information came back that it was true. Ishmal conducted his own investigation into the crimes and used "informants." He also sat in on the police interviews with two witnesses, Kayla Kelly and Brooke Ratliff.
Brooke was Ratliff's stepmother. She testified that Ratliff had stopped by her house and when she asked him where he got his money he told her it was from selling some guns to Howard Conn that he had obtained from Ishmal's house. Brooke informed Ishmal of Ratliff's statement.
Kayla Kelly, Ratliff's ex-girlfriend, testified that she heard him say that "he burnt the house and stole stuff out of it." On another occasion Kayla heard Ratliff say "[Ishmal] was lucky to have his vehicle and his clothes." Kayla was a convicted felon and was subject to being revoked for absconding from drug court at the time she gave her statement implicating Ratliff in April 2010. She was instead placed on supervised probation. Kayla never saw any guns or tools. She and Ratliff have a child together. Detective Sykes asked Kayla if the possibility that Ratliff was going to try to come take care of the baby gave her some motivation in this case and she said "yup."
Kayla's mother, Sherry Kelly, testified that she knew that Ratliff had sold a blue Black & Decker drill to her husband James Kelly. James Kelly did not testify at trial because he suffered from dementia. Sherry testified that she heard Ratliff say on two or three occasions that he burnt the house. Kayla and her daughter lived with Sherry and James at the time of trial.
Jeffery McCoy, the brother-in-law of Ratliff also testified. He denied having told Ishmal that Ratliff had confessed to him. He denied having any conversations about Ratliff confessing with Bobby Ray or Clay Ratliff. McCoy said he felt pressure to testify from Ishmal. He was impeached by several witnesses: Ishmal, Bobby Ray, Ishmal's son Clay, and two KSP officers, Sykes and Merlow. Ishmal testified that McCoy was one of the lead informants who kept him updated during his own investigation.
After hearing the aforementioned testimony, the jury convicted Ratliff of arson in the second degree, burglary in the first degree, and felony theft by unlawful taking and was sentenced to fifteen years' imprisonment. It is from this conviction that Ratliff now appeals. Additional facts will be discussed as warranted.
On appeal, Ratliff presents four alleged errors which he argues mandate reversal. First, Ratliff argues that the trial court erred in denying his motion for a mistrial when the Commonwealth presented testimony from two witnesses with no personal knowledge of the event in dispute and in violation of his rights to confront the witness against him. Second, the trial court erred in refusing to instruct on his requested lesser-included offense of burglary in the second degree. Third, Ratliff was prejudiced by the prosecutor's misconduct. Fourth and last, Ratliff was unduly prejudiced when the trial court abused its discretion and allowed his brother to be called as a witness against him while shackled and dressed in prison clothing. The Commonwealth disagrees with Ratliff's arguments and asserts that the trial court did not err. With these arguments in mind we turn to the first issue presented.
First, Ratliff argues that the trial court erred in denying his motion for a mistrial when the Commonwealth presented testimony from two witnesses with no personal knowledge of the event in dispute and in violation of his right to confrontation. In support thereof, Ratliff argues that the testimony of Howard Conn, Jr. and Tammy Conn violated his constitutional right to confrontation of a witness because neither had personal knowledge as to where Howard Conn, Sr. had obtained the guns and instead simply testified to hearsay. The trial court overruled Ratliff's multiple motions, including that for a mistrial based on the lack of personal knowledge and the violation of Ratliff's confrontation right under Crawford, infra, and overruled Ratliff's motion for an admonition to the jury to disregard any testimony as to what Howard Conn, Sr. may have said. The Commonwealth argues that the testimony was not hearsay.
Whether or not to grant a mistrial is within the sound discretion of the trial court, and the trial court's ruling will not be disturbed unless its ruling constitutes an abuse of discretion. Woodard v. Commonwealth, 147 S.W.3d 63 (Ky. 2004). Moreover, a mistrial is an extreme remedy and should be utilized only when there appears in the record a manifest necessity for such action. Clay v. Commonwealth, 867 S.W.2d 200 (Ky. App.1993). The error must be "of such character and magnitude that a litigant will be denied a fair and impartial trial and the prejudicial effect can be removed in no other way [except by granting a mistrial]." Gould v. Charlton Co., Inc., 929 S.W.2d 734, 738 (Ky. 1996).
We have long held that an admonition is usually sufficient to cure an erroneous admission of evidence, and there is a presumption that the jury will heed such an admonition. A trial court only declares a mistrial if a harmful event is of such magnitude that a litigant would be denied a fair and impartial trial and the prejudicial effect could be removed in no other way. Stated differently, the court must find a manifest, urgent, or real necessity for a mistrial. The trial court has broad discretion in determining when such a necessity exists because the trial judge is "best situated intelligently to make such a decision." Ultimately, the trial court's decision to deny a motion for a mistrial should not be disturbed absent an abuse of discretion. See Matthews v. Commonwealth, 163 S.W.3d 11, 17 (Ky. 2005)(internal citations omitted).
At trial, the Commonwealth attempted to show the jury how Howard Conn, Sr. had obtained the guns, which Ishmal testified were his and stolen from his house. Howard Conn, Sr. passed away prior to trial. Ishmal testified that he learned that his guns were at the Conns's residence so he and Trooper Hampton went to retrieve them. Ishmal testified that when he went to the Conns's residence and confronted Howard Conn, Sr., Ishmal stated that Howard Conn, Sr. "started hemming and hawing around." Trooper Hampton accompanied Howard Conn, Jr. into the home and returned outside with "a bunch of guns." Ishmal identified one of the guns as his, based on the engraving and scratches on it. Ishmal testified that the gun had been present in his home prior to the fire. Ishmal then testified that about a year after this event at the Conns's residence, he received more of his missing guns from the Conns in an arranged transaction at the law office of Larry Webster.
Then the Commonwealth called Howard Conn, Jr. and Tammy Conn as witnesses. Howard Conn, Jr. recalled the day that Ishmal and Trooper Hampton came to their home. He testified that the one Ishmal identified as his was a gun Howard Conn, Sr. had given him. Howard Conn, Jr. testified that he did not tell Trooper Hampton that the gun came from Ratliff. The Commonwealth then asked "if [Trooper] Hampton comes in here and says you told her that gun came from Joe Ratliff, that you bought it from Joe Ratliff, you or your father, that would be a lie?" Howard Conn, Jr. then stated that "Dad bought the gun from Joe, I didn't." Through more testimony it was established that Howard Conn, Jr. did not purchase the gun from Ratliff, was not present to see anyone else make a purchase of guns from Ratliff, never saw Ratliff with the guns, and was stopped just short of saying that his Dad told him that he bought the gun from, presumably, Ratliff.
Tammy Conn testified that she had signed an affidavit at Larry Webster's office and that this was the same one that her deceased husband, Howard Conn, Sr., had signed. Tammy testified that the affidavit stated that the guns came from Ratliff. When questioned further, Tammy replied that where the guns came from was "as far as my knowledge it is." She stated that she did not know for sure, that her knowledge came from what her husband had said.
Larry Webster then testified that the Conns had signed the affidavits evidencing where they had gotten the guns.
Ratliff argues that this testimony effectively brought in testimonial hearsay, and that he was unable to cross-examine the source of the information, Howard Conn, Sr. The Commonwealth contends that the testimony was not hearsay since Howard Conn, Jr. had stated in the presence of Trooper Hampton that the gun was bought from Ratliff and that Tammy had signed a sworn affidavit that the guns came from Ratliff. We agree with Ratliff that, contrary to the Commonwealth's position, this testimony was clearly in violation of Crawford, infra.
Our Kentucky Supreme Court addressed the impact of the United States Supreme Court decisions in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), in Heard v. Commonwealth, 217 S.W.3d 240 (Ky. 2007), and Rankins v. Commonwealth, 237 S.W.3d 128 (Ky. 2007). Both Heard and Rankins necessarily reached the same conclusion: that our courts must vigilantly protect a defendant's Sixth Amendment right to confrontation by applying Crawford. As held in Heard, supra:
Heard at 243-244 (internal citations omitted).
Our Kentucky Supreme Court went on to further hold in Rankins, supra:
Rankins at 131(internal citations omitted).
In applying Heard, supra, and Rankins, supra, to the case sub judice, we must conclude that the testimony of both Howard Conn, Jr. and Tammy Conn were testimonial in nature and lacked personal knowledge. Fundamentally, the source of knowledge as to where the guns came from was Howard Conn, Sr., whose statements the Commonwealth attempted to introduce through Howard Conn, Jr. and Tammy. Ratliff was not able to cross-examine Howard Conn, Sr.; the statements of his family about "what happened" are testimonial in nature. As to the Commonwealth's contention that the sworn affidavit rendered any statements non-hearsay we find Barnes v. Commonwealth, 794 S.W.2d 165, 168 (Ky. 1990), to be dispositive:
Id.
Clearly the statements in the affidavit met the definition of hearsay. See Kentucky Rules of Evidence (KRE) 801.
Ratliff next argues that the trial court erred in refusing to instruct on his requested lesser-included offense of burglary in the second degree. He contends that a juror may have believed that he had stolen the drill without stealing the guns and, thus, he would be entitled to a burglary in the second degree instruction since the burglary in the first degree instruction was premised on his being armed with the stolen guns taken during the burglary from Ishmal's house. Ratliff argues that the jury may have believed the lesser charge given the different witness for the guns and for the drill. The Commonwealth argues that the trial court correctly determined that it was an all or nothing proposition.
We note that our review of a trial court's rulings with respect to jury instructions is for abuse of discretion. Cecil v. Commonwealth, 297 S.W.3d 12, 18 (Ky. 2009), citing Ratliff v. Commonwealth, 194 S.W.3d 258, 274 (Ky. 2006). The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citing 5 Am.Jur.2d Appellate Review § 695 (1995)).
As stated in Manning v. Commonwealth, 23 S.W.3d 610, 614 (Ky. 2000):
Manning at 614.
However, the trial court's duty to instruct "does not require an instruction on a theory with no evidentiary foundation." Houston v. Commonwealth, 975 S.W.2d 925, 929 (Ky. 1998) (internal citations omitted); Neal v. Commonwealth, 303 S.W.2d 903 (Ky. 1957). See also RCr 9.54. Moreover, "An instruction on a lesser-included offense should be given if the evidence is such that a reasonable juror could doubt that the defendant is guilty of the crime charged, but conclude that he is guilty of the lesser-included offense." Webb v. Commonwealth, 904 S.W.2d 226, 229 (Ky. 1995), citing Luttrell v. Commonwealth, 554 S.W.2d 75, 78 (Ky. 1977).
At issue, KRS 511.020 states:
KRS 511.030 states:
At trial, one witness discussed the drill and that Ratliff sold it to her husband. The jury could certainly have believed that Ratliff had stolen the drill and not the guns; thus, he would not have been armed per KRS 511.020. Therefore, we find that Ratliff was entitled to the lesser-included instruction of burglary, second-degree, pursuant to KRS 511.030, and we reverse and remand on this issue.
Third, Ratliff argues that he was prejudiced by the prosecutor's misconduct. At trial, the prosecuting attorney elicited the testimony of his own advice from Ishmal:
Defense counsel objected that the prosecuting attorney was "making it real close to himself becoming a witness in the case." The Commonwealth replied that, "you can call me if you want to." Defense counsel expressed doubt in the propriety of calling the prosecuting attorney as a witness. The trial court overruled defense counsel's objection. The Commonwealth then proceeded to reinforce what advice he had given Ishmal with further questioning on the same grounds. This error was perpetuated when the Commonwealth asked Detective Sykes to testify that the advice given by him to Ishmal was a good idea; closing argument also reinforced this error. The trial court eventually agreed with defense counsel that it was improper for the prosecutor to tell the jury what advice he gave people. The court overruled the motion for a mistrial, and a motion to disqualify the prosecuting attorney.
We believe Holt v. Commonwealth, 219 S.W.3d 731, 737-38 (Ky. 2007), to offer guidance on this issue:
We agree with Ratliff that the Commonwealth's repeated placement of his advice before the jury effectively made him a witness in the case, serving to bolster the testimony of the prosecution's other witnesses. Such practice was improper, erroneous, and correctible on retrial. Additionally, Ratliff takes issue with the Commonwealth's comment in closing argument regarding Clay's testimony: "I thought it had the ring of reliability when he said [McCoy] flicked his cigarette and said he knew who did it." Ratliff argues that the Commonwealth inserted its own personal opinion on the credibility of a witness.
The law in Kentucky is clear that:
Hannah v. Commonwealth, 306 S.W.3d 509, 518 (Ky. 2010)(internal citations omitted).
We decline to find prosecutorial misconduct in closing argument sub judice as "A prosecutor may comment on the veracity of witnesses." Chumbler v. Commonwealth, 905 S.W.2d 488, 503 (Ky. 1995).
Fourth and last, Ratliff asserts that he was unduly prejudiced when the trial court abused its discretion and allowed his brother to be called as a witness against him while shackled and dressed in prison clothing. The Commonwealth argues that there was no error because the first questions asked by the Commonwealth of their witness, Ratliff's brother, were whether he was presently incarcerated, where he was incarcerated, and for what crimes, thereby mitigating any perceived error of the witness wearing shackles and prison garb because it was explained. After our review of the record we agree with Ratliff that the trial court's denial of his motion, without stated reasons, to permit his brother to testify without shackles and prison garb was error; however, we find such error to be harmless.
Barbour v. Commonwealth, 204 S.W.3d 606, 612-13 (Ky. 2006), while not directly on point to the facts sub judice, offers this Court guidance:
Barbour at 612-613. (Emphasis supplied).
Given that sub judice, the defendant's brother took the stand as a witness for the Commonwealth in prison garb and shackles, trial counsel's fear that the jury may perceive the entire family as criminal has some basis. We believe that the better course of action would be for the trial court to articulate the facts upon which it believed the defendant's brother should appear shackled before the jury. See Barbour. Ultimately, this error was harmless to the defendant because any prejudice would align with the Commonwealth's case and not that of the defendant. Moreover, our review of the record during Ratliff's brother's testimony shows that it is unclear whether the jury would know who was related to whom or for that matter if there was any relation at all because both the victim and the defendant shared the same last name.
In light of the aforementioned, we reverse and remand this matter for further proceedings.
THOMPSON, JUDGE, CONCURS.
MAZE, JUDGE, CONCURS IN PART AND CONCURS IN RESULT ONLY IN PART.
MAZE, JUDGE, CONCURRING.
While I concur with my colleagues on three of the issues raised in this case, on a fourth, I must concur in result only.
Regarding my colleagues' conclusion on the matter of Ratliff's brother's appearance in prison clothing, I am compelled to disagree with, and strongly urge against, any suggestion that a witness for the state is cloaked in the same presumption of innocence as Ratliff. The law of our Commonwealth simply does not support such a contention.
While there seems to be no authority directly relating to a state's witness who is also a relative of the defendant, we can reasonably impute from our courts' handling of other circumstances what the law is. Our Supreme Court has very recently held that four witnesses for the defense did not prejudice the defendant's defense by appearing in prison clothing. See Stacy v. Commonwealth, ___ S.W.3d ___(Ky. 2013), 2012-SC-000065-MR (March 21, 2013).
Rather, I feel the Supreme Court's rule in Stacy is more on-point with this case. Accordingly, if the Supreme Court believes that no constitutional deprivation occurs when a witness for the defense wears prison garb, certainly it would not find that such a deprivation occurred when a witness for the prosecution did the same. My colleagues are correct that any damage to the witness's credibility would seem to prejudice only the prosecution; however, I submit that this, as well as the above analysis, require the conclusion that the "harmless error" my colleagues find to have occurred here was no error at all.
While it may have been more ideal for the trial court to explain its reasoning in denying the defense's motion, Ratliff's motion asserted a constitutional right which I believe does not apply under these facts. Hence, the trial court's decision to overrule the motion, even while failing to explain that decision, cannot be error.
In sum, while I concur with the result to which my colleagues ultimately reach on this point, I express my hope that their opinion was not intended, and will not be read, to expand a defendant's right to a fair trial beyond that very important right's established limits.
(b) Declarant. A "declarant" is a person who makes a statement.
(c) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
A declarant is not unavailable as a witness if his exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.
(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
