       JMPORTANT N-0               E
      NOT TO BE PUBLISHEDOPINION




THIS OPINION IS DESIGNA TED "NOT TO BE
PUBLISHED. f' PURSUANT TO THE RULES OF
CIVIL PR 0CED URE PR OMUL GA TED B Y THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOTBE
CITED OR USED AS A UTHORITYIN ANY OTHER
CASE INANY COURT OF THIS STA TE.
                                                      RENDERED : SEPTEMBER 21, 2006
                                                              NOT TO BE PUBLISHED



              ,$uyrrmt Courf of
                                    2005-SC-000792-MR


 WRENDA B. GALLIEN                                                                 APPELLANT


                       ON APPEAL FROM THE COURT OF APPEALS
V.                               2005-CA-001148-M R



HON. F. KENNETH CONLIFFE, JUDGE,
JEFFERSON CIRCUIT COURT, ET AL.                                                    APPELLEES


                        MEMORANDUM OPINION OF THE COURT

                                        AFFIRMING


               In this original action in the Court of Appeals, Appellant, Wrenda B.

Gallien, petitioned for a writ prohibiting the Jefferson Circuit Court from retrying her after

the Circuit Court granted a mistrial . The Court of Appeals denied the writ, holding that

the trial court's decision to declare a mistrial was manifestly necessary. Appellant now

seeks review of the order of the Court of Appeals as a matter of right.' For the reasons

stated herein, we affirm the denial of the writ.

              The facts, as well stated by the Court of Appeals, are as follows:

                     In November 2003, the Jefferson County Grand Jury
              issued an indictment against Wrenda B. Gallien, charging
              her with thirteen (13) counts of prohibited activities relating to
              controlled substances, fifteen (15) counts of complicity to
              obtain or attempting to obtain a controlled substance by
              fraud or deceit, and nine (9) counts of wrongfully filling

' Ky. Const. § 115 .
              prescriptions. The Jefferson Circuit Court selected a jury
              and commenced a jury trial in this matter on September 22,
              2004.
                      The events relevant for this petition occurred on the
              third day of trial. During the trial proceedings on September
              24, 2004, the respondent, Judge F. Kenneth Conliffe,
              counsel for the Commonwealth and counsel for the
              defendants2 were engaged in a conference at the bench . At
              this bench conference, counsel for the Commonwealth
              indicated that it would close its case against the defendants
              after presenting one additional witness to the court. After
              this bench conference, a deputy sheriff requested to speak
              with the respondent in his chambers . At this point, the
              proceedings were recessed and the jury excused from the
              courtroom.
                      Upon his return to the courtroom, respondent
              informed the deputy sheriffs that the jury should remain
              outside the courtroom .      Respondent then proceeded to
              inform counsel that the deputy sheriff had informed the court
             that, during the bench conference, a girl left her seat in the
             gallery, approached Gallien, got her attention and presented
             Gallien with a stuffed animal . Gallien accepted the stuffed
             animal from the girl .       This exchange occurred in the
             presence of the jury and was captured on the video record of
             the trial . Respondent played the video record of these
             events to counsel .
                     After playing the videotape, respondent ordered the
             girl's father, Steven Deluka, to testify concerning the events
             that occurred during the bench conference . Deluka testified
             that his daughter wanted to give a small stuffed dog name
             "Courage" to Gallien for support. Deluka acknowledged that
             he and his daughter are friends of Gallien and that Deluka's
             daughter had no opportunity prior to this bench conference
             in which to give this stuffed toy to Gallien. Deluka denied
             planning this event with defense counsel or with Gallien .
                     Respondent then called Deputy Sheriff Clifford Gagel
             to testify . Deputy Gagel testified that he and Deputy George
             Thornton had observed the girl leave her seat in the gallery
             and approach the courtroom bar, yet neither deputy reacted
             to the girl. Deputy Gagel observed the girl getting Gallien's
             attention during the bench conference and presenting her
             with the stuffed animal. Deputy Gagel informed the court


2 Appellant was being tried with a co-defendant. The co-defendant is not named in this
matter as he was not a party to the original action in the Court of Appeals, nor is he a
party in this appeal.
 that he noticed that members of the jury panel took note of
 this event.
         Deputy Thornton also testified during the court's
 investigation of this matter. Deputy Thornton testified that he
 was helping Deputy Gagel with courtroom security for this
 trial because the court had previously had problems with
 Gallien's family members distracting the proceedings .
 Deputy Thornton stated that he observed Deluka talking with
 his daughter and that Deluka was pointing upward. After this
 conversation, the girl walked to the courtroom's bar and
 ultimately gave the stuffed animal to Gallien.          Deputy
 Thornton further testified that the girl's actions were not
 spontaneous, but were the direct result of Deluka's direction .
 In response to a question from defense counsel, Deputy
Thornton stated that it appeared Gallien did not know that
the girl was going to present her with a stuffed toy during
trial.
        After replaying the videotape and hearing testimony
from Deluka, Deputy Gagel and Deputy Thornton,
 respondent issued the following statement from the bench:
        "There have been difficulties during this week with
some members of the gallery, for a better term, making
audible comments, signs, things of that nature, body
language, while we were presenting matters and many times
typically when we've come to the bench, the deputies have
reported they have had to advise these people to tone it
down so to speak. This individual [Deluka] who was on the
stand has been here from day one, he was in the box during
when we were doing voir dire . We had a little difficulty with
him because, while it was innocent in the sense that I guess
he wanted to use the restroom while we were doing voir dire,
during that time he left the jury box and went back into the
secure area at a time after the secure area had been closed .
There was no staff back there and he apparently just used
the restroom, but was confronted at that point and told about
the rules. And has been here, by the Court's observation,
the deputies' observation, ever since.         I'm extremely
concerned as indicated because there have been issues
raised in this case in opening statement about matters which
the defendant has done good things for people and the
Commonwealth has contended that's not the issue. The
issue is whether or not she violated the law as it relates to
prescriptions, and now we have this action which I do
believe was not brought about as any plan of the defense
team, but certainly has an effect on the jury since they
clearly saw what went on . And I don't know if it was staged
               by this member of the gallery.           It certainly wasn't
               spontaneous since obviously his 10 year old child brought
               along a toy to a courtroom on a day when I would expect
               most 10 year old children to be in school and the jury totally
               saw that."
                      The Commonwealth then moved the circuit court to
               declare a mistrial on grounds that the actions undertaken by
               Deluka's daughter unduly prejudiced the Commonwealth .
               Gallien, by counsel, objected to the motion. The trial court
               granted the Commonwealth's motion for a mistrial over
               Gallien's objection .

               After declaring a mistrial, Judge Conliffe ordered that Gallien be retried .

Thereafter, the Commonwealth re-indicted Gallien, amending the original charges and

adding new ones . At or about the same time, Gallien sought a writ of prohibition from

the Court of Appeals prohibiting Judge Conliffe from conducting a retrial because of

double jeopardy concerns. The Court of Appeals held that Appellant did not have an

adequate remedy on appeal, but that the trial court did not abuse its discretion in

granting the mistrial .

               "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. "4

Writ cases are divided into two classes, whereby a lower court is either acting without

jurisdiction, or acting erroneously within its jurisdiction . Although not specifically stated

by Appellant, we assume'that she contends the case at bar falls into the

aforementioned latter class of cases . A writ of this type will not ordinarily be granted,



3 A new indictment was returned against Gallien in March 2005 to correct errors in
  Counts 10 through 13 of the November 2003 indictment. The March 2005 indictment
also added new charges of obtaining drugs by fraud or deceit as well as tampering with
4pphysical
   hysical evidence .
            Mutual Ins. Co. v. Trude , 151 S .W.3d 803, 808 (Ky. 2004) (gotin Bender v.
  Eaton , 343 S.W.2d 799, 800 (1961)).
  5 Id.
 unless Appellant can show, as conditions precedent, that she "(a) had no adequate

 remedy by appeal or otherwise, and (b) would suffer great and irreparable injury (if error

 has been committed and relief denied) ."6 This Court has "consistently (apparently

without exception) required the petitioner to pass the first test ; i.e ., he must show he has

no adequate remedy by appeal or otherwise ."' Appellant must then satisfy the

requirements of the second test, by showing great and irreparable injury.8

              We agree with the Court of Appeals, in that Appellant would have no

adequate remedy by appeal, because if the trial court's decision to declare a mistrial is

declared erroneous, double jeopardy would attach if Gallien were tried again .

Furthermore, we have held that "double jeopardy is an appropriate subject for a writ of

prohibition ."9 We find no error in this assessment .

              We therefore will examine the Court of Appeals' analysis of the second

prong of the test (great and irreparable injury), and we do so using a clear error

review.' ° The trial court found that the stuffed animal incident, coupled with ongoing

disruptions from the gallery, rose to the level of manifest necessity for a mistrial .

"Whether to grant a mistrial is within the sound discretion of the trial court, and `such a

ruling will not be disturbed absent . . . an abuse of that discretion.""' "A mistrial is an

extreme remedy and should be resorted to only when there appears in the record a




6 Id . (uotin Bender, 343 S.W .2d at 801) (emphasis in original) .
  Bender , 343 S .W.2d at 801 .
8 _Id .
9 St. Clair v. Roark, 10 S .W.3d 482, 485 (Ky. 2000).
"5G-range Mutual Ins. Co. , 151 S .W.3d at 8-10.
" Bray v. Commonwealth , 177 S.W .3d 741, 752 (Ky. 2005) ( uotin Woodard v.
Commonwealth , 147 S .W.3d 63,68 (Ky. 2004)).
 manifest necessity for such action or an urgent or real necessity ."" "The occurrence

 complained of 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." 13

               The trial judge determined that the act of the girl giving the stuffed animal

 to Appellant, at her father's apparent direction, and in full view of the jury created an

 atmosphere in which the Commonwealth could no longer receive a fair trial. We also

 note that the trial judge determined that the cumulative effects of the disruptions from

members of the gallery added to the necessity of declaring the mistrial . The disruptions

were of such an apparent magnitude an extra deputy was brought in to assist in

maintaining order during the trial. A trial court has the authority to grant a mistrial based

on courtroom misconduct, 14 and were this not the rule spectators could influence juries

without a trial court possessing the ability to remedy the situation . "The trial judge was

in the best position to determine whether any remedial action was necessary to

preserve decorum and ensure a fair trial . "15

               Appellant argues that the trial court had a duty to try and remedy the

prejudice to the jury through other alternatives (e.g., an admonition or sanctions against

the offending spectators), before a mistrial should have been granted. However, when

a trial court clearly believes other alternatives will not remedy the prejudice, he has no

duty to attempt such alternatives . In this case the trial judge believed any attempt to

remedy the prejudice would have been futile.




'2
   Id. (citing Skaggs v. Commonwealth, 694 S.W.2d 672, 678 (Ky. 1985)).
13
   Gould v. Charlton Co. , 929 S .W.2d 734, 738 (Ky. 1996) .
14
   See Raney v. Commonwealth , 287 Ky. 492,153 S.W.2d 935 (Ky. 1941) .
15 Wilson v. Commonwealth, 836 S .W.2d 872, 890 (Ky. 1992) .
               The Court of Appeals did not abuse its discretion in denying the writ. Its

opinion is affirmed .

               Lambert, CJ, and Graves, Minton, Roach, Scott, and Wintersheimer, JJ .,

concur. McAnulty, J ., dissents by separate opinion .
COUNSEL FOR APPELLANT :

Kevin C. Burke
125 South Seventh Street
Louisville, KY 40202

Steven R. Romines
ROMINES, WEIS & YOUNG, P.S.C.
600 West Main Street, Suite 100
Louisville, KY 40202



COUNSEL FOR APPELLEES :

Hon. F. Kenneth Conliffe
Judge, Jefferson Circuit Court
Hall of Justice
600 West Jefferson Street
Louisville, KY 40202

Gregory D. Stumbo
Attorney General of Kentucky
118 Capitol Building
Frankfort, KY 40601

Ruth E. Lerner
Jeanne Deborah Anderson
514 West Liberty Street
Louisville, KY 40202-2887
                                                       RENDERED : SEPTEMBER 21, 2006
                                                               NOT TO BE PUBLISHED

                  Q
                 'vuyrrme              Courf of ~irufurhV
                                      2005-SC-0792-MR



WRENDA B . GALLIEN                                                                APPELLANT


                         ON APPEAL FROM COURT OF APPEALS
V.                                2005-CA-1148-MR


HON . F . KENNETH CONLIFFE, JUDGE,
JEFFERSON CIRCUIT COURT, ET AL                                                      APPELLEE


                    DISSENTING OPINION BY JUSTICE McANULTY

       Respectfully, I dissent from the Majority's Opinion affirming the denial of the writ

of prohibition . In my opinion, the trial court's decision to declare a mistrial after a girl

presented a stuffed animal to Gallien during a bench conference in an otherwise calm

courtroom was not manifestly necessary, especially in light of the court's stated belief

that this presentation had nothing to do with the defense team. I believe the prejudicial

effect, if any, of this gesture could have been removed by an admonition to the jury

and/or a jury instruction and/or removal of the girl and her father from the audience.

Such measures should have been sufficient to protect the substantial rights of the

Commonwealth against the influence or cumulative influence of the bystanders . See

Miller v. Commonwealth , 240 Ky. 346, 42 S.W.2d 518, 522 (Ky. 1931) (holding that trial

court's act of sounding of gavel and statements (1) rebuking the audience for

demonstration during the Commonwealth's closing argument, which included hollering,

clapping hands and stamping feet that could be heard a distance of 300 to 400 feet
from the courthouse ; (2) admonishing the audience that courtroom would be cleared if

such behavior continued; and (3) admonishing the jury that such conduct had nothing to

do with the trial were sufficient to protect the substantial rights of the defendant).

       Under the circumstances of this case, I believe the trial court abused its

discretion . As outlined above, the ends of substantial justice could have been achieved

in a number of ways far short of declaring a mistrial. See Gosser v. Commonwealth , 31

S .W.3d 897, 906 (Ky. 2000).
