lMPORTANT NOT|CE
NOT TO BE PUBL|SHED OP|N|ON

TH|S OP|N|ON lS DES|GNATED ”NOT TO BE PUBL|SHED."
PURSUANT TO THE RULES OF ClVlL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(€),
TH|S OP|N|ON lS NOT TO BE PUBL|SHED AND SHALL NOT BE
ClTED OR USED AS BlND|NG PRECEDENT lN ANY OTHER
CASE lN ANY.COURT OF TH|S STATE; HOWEVER,
UNPUBL|SHED KENTUCKY APPELLATE DEC|S|ONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE ClTED FOR
CONS|DERAT|ON BY THE COURT |F THERE lS NO PUBL|SHED
OP|N|ON THAT WOULD ADEQUATELY ADDRESS THE lSSUE
BEFORE THE COURT. OP|N|ONS ClTED FOR CONS|DERAT|ON
BY THE COURT SHALL BE SET OUT AS AN UNPUBL|SHED
DEC|S|ON IN THE F|LED DOCUMENT AND A COPY OF THE
ENT|RE DEC|S|ON SHALL BE TENDERED ALONG WlTH THE
DOCUMENT TO THE COURT AND ALL PART|ES TO THE
ACT|ON.

RENDERED: AUGUST 2'4, 2017
NOT TO BE PUBLISHED

Snpreme Tonri of Ben ` N AL

2016-SC-OOO488-MR -
' ©ATEMQ;M».M,»¢

KEITH JEROME STOVALL t APPELLANT

 

 

 

` ON APPEAL FROM JEFFERSON CIRCUIT COURTv ’
V. HONORABLE JAMES M. SHAKE, JUDGE ~
. NO. 14-CR-OO_2762

COMMONWEALTH OF KENTUCKY b APPELLEE
MEMORANDUM OPINION OF THE CCURT

A_F_l"_IR_l\lIH_G_

This is a sex abuse case involving minors in which the events occurred
between October 19, 2012 and October 19, 2013. Only one issue is raised on
appeal. The specific details of the underlying crimes are not relevant to that
issue. As such, only a brief factual background i_s necessary.

On one occasion while at his residence, Appellant, Keith Jerome Stovall,- '
exposed his genitals and masturbated While in the presence of a minor child
named Stephanie.1 On a separate occasion While driving a_`car, Appellant

exposed his genitals and masturbated while in the presence of a minor child

 

1 l’seudonyms are being used to protect the anonymity of both minor
victims.

named Barbara. Both girls were less than twelve-years-old at the time. They
were the nieces of Appellant’s former live-in girlfriend, Julie Martin. As a result
of such conduct, Appellant Was subsequently arrested, indicted, and tried by a
Jefferson Circuit Court jury.

The jury convicted Appellant of first-degree sexual abuse for the incident
involving Stephanie and also convicted him of first-degree sexual abuse for the
incident involving Barbara. Appellant was additionally convicted of being a
second-degree persistent felony offender (PFO). The jury recommended a
sentence of 10 years for each sexual abuse conviction. The sentence was
enhanced to be served consecutively for a total sentence of twenty years’
imprisonment The trial court sentenced Appellant in accordance with the
jury’s recommendation. Appellant now appeals his judgment and sentence as
a matter of right pursuant to § llO(2)(b) of the Kentucky Constitution.

Mistrial

Appellant argues that the trial court erred for failing to grant his motion
for a mistrial. The alleged error here arose as a result of the following trial
testimony of Louisville Metro Police Detective Rico Williams:'

Commonwealth: Did you ever attempt to make contact With
[Appellant] and obtain his version of the facts?”

Det. Williams: Yes, I did.

Commonwealth: And were you able to . . . .
Appellant objected to the Commonwealth’s line of questioning before the
prosecutor ended his sentence. During a bench conference, Appellant

requested a mistrial and argued that the Commonwealth’s questioning

2

impermissibly referenced Appellant’s right to remain silent. The court
sustained Appellant’s objection to the prosecutor’s line of questioning, but
denied the mistrial motion. Appellant’s counsel failed to request an
admonition.

“It is universally agreed that a mistrial is an extreme remedy and should
be resorted to only when there is a fundamental defect in the proceedings
which will result in a manifest injustice.” Gould v. Charlton Co., Inc., 929
S.W.2d 734, 738 (Ky. 1996). “[A] finding of manifest necessity is a matter left
to the sound discretion of the trial court.” Commonwealth 1). Scott, 12 S.W.3d
682, 684 (Ky. 2000).

As previously noted, Appellant’s trial counsel objected to the
Commonwealth’s questioning before the Detective responded with any level of
detail concerning his attempts to contact Appellant. The testimony of the
victims in this case was clear and compelling. Therefore, Whatever alleged
constitutional error that may have occurred here was harmless beyond a
reasonable doubt. Chapman v. Califomia, 386 U.S. 18, 24 (1967).

Appellant also claims that an admonition following Detective Wi'lliams’
testimony would have been insufficient to cure any alleged error because of
previous statements by jurors during voir dire questioning. More specifically,
Appellant’s counsel asked the then prospective jurors whether any of them
would try to explain themselves if they were accused of wrongdoing Juror
#1637116, who sat on the jury, indicated that he believed every situation

would be different and that he understood that it might be against an accused

3

person’s best interests to explain himself, even if he Were innocent. Appellant
did not attempt to strike that juror from the panel.

We are mystified by the point attempted to be made by Appellant, and
only address it because he raised it in his brief. We see no problem with the
juror’s answer, nor why it was error to keep him on the jury. Neither do we see
how this matter makes the failure of the trial court to give an admonition less
important Any attempt by the Appellant to link this voir dire matter with a
mistrial issue fails.

We are unpersuaded by Appellant’s argument that an admonition
following Detective Williams’ testimony would have been insufficient to cure the
alleged error arising from his testimony See Johnson v. Commonwealth, 105
S.W.3d 430, 441 (Ky. 2003). To the extent this line of questioning could be
deemed in error, an admonition would have been a sufficient cure. See Vincent
v. Commonwealth, 281 S.W.3d 785, 789-90 (Ky. 2009) (denying mistrial motion
and concluding that an admonition would have cured impermissible testimony
that violated defendant’S right to remain silent). Nothing that occurred during
voir dire changes this conclusion. Therefore, the trial court did not abuse its
discretion in denying Appellant’s mistrial motion.

Conclusion

For the foregoing reasons, We hereby affirm the judgment of the Jefferson

Circuit Court.

All sitting. All concur.

COUNSEL. FOR APPELLANT:

Daniel T. Goyette
Louisville Metro Public Defender of Counsel

Cicely Jaracz Lambert
Deputy Appellate Defender

Allison Rief
Assistant Public Defender

COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Micah Brandon Roberts
Assistant Attorney General

