*1 department” County to Rule employee include Jefferson Merit Board 7.3(l)(a). terminations. This rule is consistent with the authority granted judge- final to a county interpretation trial court’s of the The 67.710(7) by executive KRS remove to See, is KRS very e.g., statute reasonable. county employees. initially This rule was which, in providing 78.405 for the estab- by conjunction issued the Merit Board boards, county police merit lishment of and changed with its creation has not been police authority vests chief of with the since. decisions, personnel subject overturn judicial But review. 67B.060 has no Thus, KRS we hold that the trial court erred bearing Any applica- on the case at bar. finding authority that the final to re- might tion it have vanished with employees move JCCD covered the Jef- County of dissolution the Jefferson Metro- County ferson Merit Board rests with the politan Department Services and, therefore, Correctional merit board we affirm the Board Merit-Personnel in 1988. Appeals. Court express language Under Jefferson All concur. County No. 1988 and Ordinance Series 67B, Chapter subject is KRS Friedman rules and of the regulations Jefferson
County Merit Board: (in JCCD) case, department [ ] possess, subject have
shall and
approval and authorization the fiscal
court, powers necessary all to effectuate To purposes, employ ... including!)] its PRICE, Appellant, Denzil “Peck” employees may as neces- dismiss be sary proper management for the KENTUCKY, COMMONWEALTH OF operation department of the and of the Appellee. governed are correctional facilities which department, subject to the depart- No. 2000-SC-0213-DG. system. ment merit Supreme Kentucky. Court of 67B.050(4) (emphasis As KRS above, Merit County shown the Jefferson Nov. system” charge is the “merit Board employees. JCCD regulations
Under rules Board, Merit the final County
Jefferson
authority employees to remove covered County Judge-
rests with the Jefferson
Executive conditioned on the Jefferson
County approval: Fiscal Court’s appointments, promotions,
All demo-
tions, offs, employ- lay and dismissals County are recommended
ees subject and are
Judge/Executive, of the Fiscal Court.
approval *2 Wettle, Louisville,
Mark Ap- Counsel for pellant. Chandler, III, General,
A.B. Attorney Nelson, Matthew D. Attorney Assistant General, General, Attorney Office of Crim- Division, Frankfort, Appellate inal Counsel Appellee. COOPER, Justice. Price,
Appellant, Denzil “Peck” was con- Clay victed a Circuit Court degree assault in the first and sentenced to years prison. Appeals ten The Court of granted discretionary affirmed. We re- propriety view to consider the and/or prejudicial effect of a demonstration con- prosecutor’s ducted during closing ar- gument in which the and the Although victim reenacted the crime. we find the im- demonstration to have been proper, judge we conclude that the trial denying did not abuse his discretion in mistrial; thus, Appellant’s motion for a we also affirm. 30, 1995, Wolfe,
On November Russell fish and Kentucky wildlife officer with the Department of Fish Wildlife Re- sources, driving home in his official pick- state vehicle when he encountered a up operated truck in a man- being reckless ner. emergency Wolfe activated his blue pursuit, lights gave ultimately follow- pickup Appellant’s ing argument, argued track into drive- defense counsel ing the operator pick- owner and way. despite drunken Appellant’s statement Appellant detective, truck was Earl Dean Fields. police shooting may have riding passenger. were as Both might not accidental have oc- *3 Fields highly intoxicated. testified at trial grabbed curred not gun. had Wolfe the that the two had consumed two “fifths” of prosecutor’s Wolfe sat at the counsel an quantity vodka and undetermined trial, during including table the entire clos- Appellant day. beer that Since al- was ing arguments. A review of the trial vid- home, him ready at his Wolfe directed to that, eotape during the reveals course of go the scene and house. leave into his prosecutor closing argument, his the then his in- two-way Wolfe used radio to up it picked shotgun, pointed the directly quire as to the status of driver’s Fields’s at stated Wolfe’s head from the distance of Meanwhile, Appellant him- license. armed feet, about and remarked: three “As he self with a .410 caliber and re- shotgun you, you, tells tells when Officer Wolfe he driveway. turned to the When Wolfe back, gets what does he see? Three feet radio, Appellant from his was looked Wolfe, away point, from him?” At this as standing approximately away feet three motion, if in slow raised his left hand shotgun with the barrel of the aimed di- head, it above his then returned to his (Wolfe’s) rectly at his Wolfe forehead. prosecutor side. continued: “What The is that he the instinctively grabbed testified Wolfe, if again he to do?” as in slow shotgun with barrel of the his left hand motion, left hand above his raised his head. pushed away it down from his head. “Now, prosecutor The continued: Officer so, Appellant pulled trig- When he did the Wolfe, you there while I right stand shoot ger in right thigh. and shot Wolfe in you the head.” As this statement was Though during he described the incident made, hand placed his left on the Wolfe testimony, attempt did to Wolfe not pulled it shotgun barrel down demonstrate or otherwise reenact right thigh, completing toward his thus fact, shotgun In intro- crime. was not prosecutor the crime. The reenactment of until duced into evidence testi- Wolfe anybody “He what concluded: does else fied. jerked does. He it. was he What to do?” that Ap- Fields testified he did not see pellant gun at point Wolfe but did see immediately objected Defense counsel Appellant and over the struggling Wolfe a At a in hearing and moved for mistrial. Appel- the shot was weapon before fired. chambers, prosecutor and the both Wolfe testify, but the an jury lant did not heard vehemently denied that the demonstration he audiotaped statement made to state pre-planned, though was Wolfe stated police shortly shooting. detective after the trial response an from the inquiry judge to statement, Appellant In that admitted that he not whether his act of did know he have shot Wolfe in head had would voluntary or grabbing gun was invol- grabbed gun. jury not The Wolfe untary. judge trial overruled the mo- degree, instructed on assault the first jury for a and admonished the tion mistrial i.e., intentionally causing physical serious disregard the demonstration. deadly injury by weapon, means of KRS in the 508.010(l)(a), participation reen Wolfe’s but not on assault prosecu ie., actment of the crime degree, wantonly causing second seri- planned or tor’s whether physical injury by deadly closing argument, ous means of a 508.020(l)(c). improper. weapon, During unplanned, highly clos- Case KRS is, In which in the thankfully, sparse. law on this issue unsound demonstrations Ky. justice Cupp S.W. end would defeat the ends of (1888), it was held reversible error for litigants. all call the victim of an Id. at 479. and, putting assault before the Nevertheless, long it has victim, say: hands the face of on “Gen- Kentucky that an admonition to the law tlemen, look at that scar on his face. Is argu disregard improper only fifty worth dollars?” And appears the error ment cures unless Williams, Stacy 69 S.W.2d prejudicial, was so under the (1934), improper was held *4 case, circumstances of the that an admoni permit personal injury damages plaintiff tion could not cure it. Knuckles v. Com injured leg to exhibit his while 667, monwealth, attorney Ky., referred to and 671 commented on S.W.2d (1953); Commonwealth, it during closing argument. Closer to Thomas Here, what occurred here is Robin- the case of 245 S.W. Kathryn, Ill.App.2d son v. Appellant Ap and agreed both Wolfe (1959), plaintiff N.E.2d 477 wherein a who pellant pointed shotgun at Wolfe’s injured had in a motorcycle accident head, grabbed that Wolfe the barrel and demonstrate, permitted was during his head, pulled away from his and down attorney’s closing argument, in the manner Appellant in right shot Wolfe which he was seated and would driving be thigh. only dispute Ap The issue in was motorcycle, where his arms would be pellant’s mens rea at the time was the shot located, and how his arms would be affect- fired, and the demonstration neither by approach ed of the defendant’s vehi- proved disproved necessary nor ele cle. Thus, improper ment of intent. dem
While it would proper have been for judge’s onstration cured the trial was attorney plaintiff for him- to have seated require admonition and does not reversal akimbo, self a chair with his arms for a trial. new typical motorcycle style, driver and to only ap The other issue raised on
have
any
technique
used
reasonable
peal pertains to a motion for a new trial
fact,
physical
demonstrate such
the em-
predicated
incompetent
upon
alleged
ployment
of
client
this fashion
juror.
juror
Juror No. who sat as a
on
amounted to a use of demonstrative evi-
case,
juror
had
on her
qualifi
indicated
clearly
dence which
improper
was
and
“mentally
that she
unsta
cation form
opportunity
afforded no
for cross exami-
from her
ble” and had attached
letter
nation,
reply.
place
defense or
for
opined that
“too
psychiatrist who
she was
demonstrative evidence and the time for
per
emotionally
unstable
at this time to
demonstrative evidence is
However,
juror
Appellant
form
duties.”
trial
final
prior
course of the
did not ask that Juror No. 57 be excused
argument.
argument may proper-
Final
cause,
nor could this information be
ly employ
by the attor-
demonstrations
evidence,
newly
deemed
discovered
since
ney, if such demonstrations are reason-
Appellant’s attorney No. 57’s
evidence,
Juror
ably
sustained
but
possession
in his
at the
qualification form
technique
using
injured plaintiff
peremptory
requiring
time he exercised his
strikes.
a visual demonstration
Except
grounds
newly
on
discovered
activity
part
movement and
on his
would
evidence,
open
completely
a motion for a new trial must be
strange
door to
occupy
position
the best
to assess whether
days
the return of
served within five
10.06(1);
prejudice,
v. demonstrations risk
and this
the verdict. RCr
Johnson
109, 112 Court should review their determinations
Ky., 17 S.W.3d
Although
I believe
Appellant’s
served
for abuse
discretion.
motion was
verdict;
the trial court
this case acted within its
days
nine
after the return of
thus,
timely
not
served and was
discretion when it admonished the
demonstration, I
properly
disregard
overruled.
see noth-
it, and I
ing inherently improper about
Accordingly,
judgment
of conviction
may discourage
today’s majority
fear that
Clay
Circuit
imposed
and sentence
permissible
the use of
demonstration dur-
Court,
opinion
and the
Court
ing closing argument.
Appeals, are affirmed.
Perhaps my most basic concern with the
LAMBERT, C.J.; JOHNSTONE,
it, by failing to
majority opinion is that
JJ„
WINTERSHEIMER,
STUMBO
trial
any
upon
outline
criteria
which
courts
concur.
propriety
closing argu-
can assess the
J.,
*5
KELLER,
separate
by
demonstrations,
concurs
appears to condemn
ment
GRAVES, J., joining that
opinion
demonstrations,
with
at least those
all such
or
concurring opinion.
complaining
partici-
witness
which the
represents
depar-
a
pates.
I believe this
KELLER, Justice, Concurring.
existing
ture from
case law which
Although I concur in the result reached
predecessor
have found the
Court
its
majority,
disagree
I
with its conclu-
by the
dispositive
to be whether
question
participation
the re-
sion that “Wolfe’s
to trial evidence
demonstration adhered
during
prose-
of the crime
enactment
therefrom.
and reasonable inferences
planned
whether
closing argument,
cutor’s
Commonwealth,3
In
v.
the Court
Cupp
improper.”1 In
unplanned,
highly
or
proceedings when
emphasized the order of
opinion,
grant
latitude we
to attor-
my
improper
allow it found
Commonwealth’s
neys
closing argument2
should
displaying
the scarred victim
illustrate
evidence
demonstrations
Code, in
“The Criminal
closing argument:
at trial or reason-
previously introduced
trials, prescribes the
procure
order to
fair
able inferences drawn from that evidence
may
testimony
be
prosecution’s mode and order which
regardless of whether
cannot afford to
given
jury,
in the
to
and courts
complaining
participates
witness
when the
permit
departure
I
a
therefrom
recognize
demonstration. While
party
give
to
to either
object
which do
and effect is
closing argument demonstrations
the other.”4
advantage
an undue
prior evidence and instead
not illustrate
later, in Balee v. Com-
Twenty-five years
introduce new demonstrative
attempt
to
monwealth,5
referenced the
the Court
improper, the demonstration
evidence are
again emphasized
Cupp
than
decision
clearly
in this case
illustrated rather
from evidence:
separate argument
need to
I believe trial courts
presented evidence.
(1888).
Ky.
3. 87
2. See (1993); v. Williams S.W.2d 178-179 S.W. 147 5. 153 Commonwealth, Ky., 644 S.W.2d perhaps convincing In for the most closing argument to the here attorney given argument the Commonwealth called the evidence was and had the defendant to jury, defendant counsel to the his case jury by stand before the side was one of iden- question and the whole witness, Kelley, prosecuting Horace tity.6 to which defendant at the time ob- Express In Huber Huber & Motor jected; objection being and his over- Administrator,7 in a case that Martin’s court, excepted. ruled he It is to,8 and factually volves an issue similar insisted that this was erroneous and interprets,9 authority cited the ma very prejudicial to the defendant for the Williams,10 jority, Stacy v. the Court em very they reason that when were not prime phasized position the trial court’s standing together, easy say it was not preju assess whether the demonstration larger which was the of the two. diced the defense: “The court knew provides Code of Practice that the Com- already whether his client exhibited attorney monwealth after the statement calling and whether his counsel of the case against the defendant must him him having re-expose support then offer the evidence in of the only repetition already intro of evidence indictment .... It important is duced.” that all the evidence which is defendant Ruth,12 Ramey In noth- the Court saw against to be him shall be offered offered ing improper in trial counsel’s illustration his counsel is before evidence in automobile accident made; may and it be very prejudicial with case model cars and blackboard any him to allow additional evidence *6 upon with the accident scene drawn argued his counsel has his case to because his demonstration was based the jury on the evidence that is before the record: Com., In jury. Cupp after the jury [Djuring argument his final for the defendant had closed attorney jury appellees produced and that for the counsel for begun argu- Commonwealth had his blackboard of his own which had there- ment, prosecutor he had the trial, to come during tofore not used around where he was and when he had placed toy upon the board automobiles so, attorney put done (which his hands on a drawing contained of the curve the face of the and said to roadway depicting the scene of “Gentlemen, jury, look at on accident) the scar and used them his face. only Is that worth .... $50?” argument. course of his It was claimed
The error in
preju-
wholly misrepresented
this case was more
that
the evi-
cited;
However,
dicial and serious than in the
case
dence
the case.
there was
560-561,
(citations
leg
exposed
6. Id. at
pated but because strayed
those demonstrations from the thereby
record and introduced new evi- always
dence. Trial courts should scruti- during closing argu-
nize demonstrations prevent
ment to the introduction of new
evidence, I they and believe that can avoid
prejudice regardless participates of who — limiting demon- demonstration —
strations closing arguments poured seven beers into a 'different con- thereon. The court restricted the matter to Bush, himself.”); namely, State v. simple showing position, and cautioned tainer’— Ill.App.3d 58 Ill.Dec. 430 N.E.2d the demonstration was not (1981): 521-522 patholo- evidence. The evidence from the During closing argument, the State's gist indicated that defendant’s boots physical conducted a demon- could have caused the marks as indicated. using stration the same model to show the merely The demonstration showed the position body. of the victim’s This demon- have manner in which could photographic stration was based on a ex- physically accomplished. apparently hibit introduced at trial and was Argument of counsel is limited to intended to demonstrate that the defendant evidence and to fair reasonable deduc- could not have turned over Ms. Durbin’s We tions to be drawn therefrom. no find body as he had testified he had done.... allowing prosecu- abuse discretion in Admission demonstrative evidence is a tor to demonstrate a reasonable inference matter within the discretion the trial *8 the evidence. from court. In the instant case we no abuse find (citations emphasis omitted and Col discretion because [the] demonstra- State, 1373, (Okla. lins v. 561 P.2d 1380-1381 ][was] based on evidence admitted at tion trial. Crim.App.1977) (approving demonstration upon relying extensively a turn-of-the- (citations added); emphasis omitted and State last-century published, but "not to be official Kroll, 173, 87 Wash.2d 558 P.2d 76.28(4)(c), Kentucky ly reported,” see CR (1976): decision—Herron In final the State was allowed (1901)). L.Rptr. 64 S.W. to conduct a demonstration in which one another, purpose man sat astride Madry, Wash.App. 19. See State v. which was demonstrate how the defen- victim, P.2d might holding dant have sat on the leaving her arms and the marks found