RENDERED: JANUARY 20, 2022 TO BE PUBLISHED 

# Supreme Court of Kentucky

2020

- SC

- 0550

- MR

MICHAEL J. LEWIS APPELLANT

ON APPEAL FROM KENTON CIRCUIT COURT V. HONORABLE KATHLEEN LAPE , JUDGE NO. 18

- CR

- 01084

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY CHIEF JUSTICE MINTON
AFFIRMING A circuit court jury convicted Michael J. Lewis of three counts of first

d egree, second

- offense , trafficking in a controlled substance and recommended a sentence of 32 years in prison. The trial court adopted the recommended
sentence and entered judgment accordingly

. Lewis appeals from the judgment as a matter of right, 1 alleging two trial
court errors. First, Lewis argues that the t rial court committed reversible error when , as jury selection began, it inadvertently read the “second offense” portion
of his indictment to the assembled venire. Second, Lewis alleges that the trial court committed reversible error when it allowed the pr osecution to introduce into evidence photos of Lewis taken at the jail after his arrest. We find that the

1 Ky. Const. § 110(2)(b).2

trial court did not reversibly err in either instance, and thus we affirm the trial court’s judgment.

I. FACTS AND PROCEDURAL HISTORY While acting as a police informant, Anthony Sw ei gart met Michael Lewis through a mutual friend. Sweigart and his friend visited Lewis at his residence, and Lewis offered to sell heroin to the two. T he police then organized a controlled buy of heroin from Lewis. Wear ing a body camera that captured each encounter, Sweigart made three separate controlled buys from
Lewis.
As t rial commenced on the charges arising out of these encounters , the
trial court read aloud to the venire the text of Lewis’s indictment. However, t he
trial court failed to omit the words second offense and having previously been convicted of first

- degree trafficking in a controlled substance from her reading of the indictment. Lewis objected immediately , requesting a mistrial , claiming the jury was impermissibly informed of his status as a pr ior offender. The trial court denied the request for a mistrial and instead admonished the jury to disregard what had been previously read to them and re

- read the indictment omitting any reference to the prior c onviction

. T he Commonwealth introduced into evidence a series of photos of Lewis taken at the jail after his arrest

. The Commonwealth introduced the images as
evidence to establish Lewis as the individual selling heroin to Sweigart in the body

- camera footage. Specifically, the photos showed Lewis’s distinctive tattoos that were visible in the body

- camera footage. The jury was not3

informed that the photographs were taken after Lewis had been placed under arrest, and the images were doctored to remove indications that the images
were taken while Lewis was in custody. For example, portions of the images showing Lewi s’s jail garb were cropped out. Lewis objected to the introduction of the se images into evidence, claiming that the jury would recogn ize the photos as having been taken while he was in custody. Lewis argued that the jury would assume that the photos were taken during his incarceration for a previous offense and thus were prejudicial to his

case. The trial court allowed the photographs to be entered into evidence, overruling Lewis’s objection. Upon conclusion of Lewis’s case

- i n
- chief, the jury found him guilty of three counts of trafficking in a controlled substance. In the sentencing phase, the jury was informed of his status as a pre vious offender. The jury then recommended a sentence of 32 years in prison, which the trial court adopted.

II. ANALYSIS A. The trial court did not err in denying Lewis’s request for a mistrial. Lewis contends that the trial court committed reversible error in fa iling to grant him a mistrial after the venire was read his entire indictment, including
the mention of his previous offenses. The trial court read: Commonwealth of Kentucky versus Michael Jamal Lewis and this case number is 18

- CR

- 1084. That on or about August 6, in Kenton County, Kentucky, the defendant committed the offense of first

- degree trafficking in a controlled substance, second offense , a felony, when the defendant knowingly and unlawfully possessed a quantity of heroin, a schedule I narcotic, w ith intent to sell or distribute some amount of said heroin; and/or did, in fact, manufacture, distribute, dispense, or sell a quantity4

of heroin, a schedule I narcotic, in violation of KRS 218A.1412, having previously been convicted of first
- degree traffi cking in a controlled substance. Lewis objected to the inclusion of references to his prior convictions (the bolded portions above). Following a bench conference and a brief break during which the parties each researched the issue, Lewis requested a mist rial on the grounds that the jury had been informed of his previous convictions and would be prejudiced against him as a result

. The trial court denied his request, instead finding that an admonition to the jury would cure any potential error
that occurre d. Lewis now appeals his conviction on, in part, the grounds that
the court committed reversible error in refusing to grant a mistrial. Declaring a mistrial is “an extreme remedy and should be resorted to only when there appears in the record a manifest n ecessity for such an action or an urgent or real necessity.” 2 We review a trial court’s decision to deny a
mistrial under an abuse

- of

- discretion standard. 3 Therefore, we will disturb the trial court’s decision only if we find it unreasonable, unfair, arbitrary, or unsupported by sound legal principles. 4 Before adoption of the Kentucky Rules of Criminal Procedure in 1963,
Section 219 of the Criminal Code of Practice required either the clerk of the court or the Commonwealth’s Attorney to read the indict ment to the jury at

2 Bray v. Commonwealth , 68 S.W.3d 375, 383 (Ky. 2002).

3 Slone v. Commonwealth , 382 S.W.3d 851, 858 (Ky. 2012).

4 Bounds v. Commonwealth , 630 S.W.3d 651, 659 (Ky. 2021) (quoting Commonwealth v. English , 993 S.W.2d 941, 945 (Ky. 1999)).5

some point before the conclusion of the Commonwealth’s evidence. 5 The failure to comply with this rule was grounds for reversal of the defendant’s
conviction. 6 Kentucky has since adopted the Rules of Criminal Procedure, and
RCr 7 9.42 replaced Section 219. RCr 9.42 makes reading the indictment to the jury an optional responsibility of the Commonwealth’s Attorney. However, the trial court’s practice of reading the defendant’s indictment to the jury is one that lingers in some circuit c ourts across the Commonwealth

. In this case, such tradition drove the actions of the trial court in reading Lewis’s indictment to the jury. By including the portions of Lewis’s indictment that mentioned his previous convictions, the trial court committed error. Under KRE 8 404(b), evidence of other crimes or bad acts committed by the defendant is inadmissible for the purpose of proving the defendant’s character “in order to show action in conformity therewith.” KRS 404(b)(1) includes several other
purpose s for which character evidence might be admissible, including “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence
of mistake or accident . . . .” Because the trial court could not offer the
information contained in th e indictment for any of these permissible purposes, the evidence of Lewis’s previous convictions was admitted in error.

5 Calhoun v. Commonwealth , 378 S.W.2d 222, 223 (Ky. 1964).

6 Id . (citing Farris v. Commonwealth , 63 S.W. 615, 617 (Ky. 1901)).

7 Kentucky Rules of Criminal Procedure.

8 Kentucky Rules of Evidence.6

Breaches of KRE 404(b)’s rule against the admission of prior bad acts as
character evidence a re generally subject to admonitory cures. 9 Such an admonition to the jury is deemed to cure an error unless “the argument was so prejudicial, under the circumstances of the case, that an admonition could not cure it.” 10 As such, upon Lewis’s objection and the trial court’s recognition that portion s of the indictment were read in error, it was within the trial court’s discretion to determine whether the jury should be admonished or whether the error was so prejudicial that a mistrial was required.
Lewis likens his case to Clay v. Commonwealth , in wh ich a trial court failed to bifurcate a defendant’s trial for trafficking cocaine and the subsequent offense of being a persistent felony offender. 11 We found that, in that case, the defendant’s case was fatally prejudiced by the mention of his previous off ense during the trial and the testimony of two parole officers at the trial about the defendant’s previous felony conviction. 12 We held that, instead, his trial should have been bifurcated and the previous convictions should not have been
mentioned until t he sentencing portion of the trial. 13 We find Lewis’s case distinguishable from Clay . Lewis’s trial was bifurcated into a guilt phase and a sentencing phase. Outside of the trial

9 Boyd v. Commonwealth , 439 S.W.3d 126, 132 (Ky. 2014); see also Jacobsen v. Commonwealth , 376 S.W.3d 600, 611 (Ky. 2012).

10 Price v. Commonwealth , 59 S.W.3d 878, 881 (Ky. 2001).

11 Clay v. Commonwealth , 818 S.W.2d 264, 265 (Ky. 1991) , abrogated on other grounds by Bratcher v. Commonwealth , 424 S.W.3d 411 (Ky. 2014)

.

12 Id . at 266.

13 Id

.7

court’s error in reading Lewis’s indictment in its entirety , no evidence or
te stimony was admitted during the guilt phase regarding Lewis’s previous convictions. Although Clay mentions the erroneous reading of an indictment as a factor in determining whether a mistrial is required in such a case, this factor alone is not dispositive . We find that the brief mention of Lewis’s previous
conviction and the admoni tion that followed did not seriously prejudice Lewis’s case such that a mistrial was required. Lewis similarly tries to anal ogize his case to Commonwealth v. Ramsey , in which thi s Court held that KRS 189A.010(4) i s a sentencing statute that enhances the penalty for repeat DUI offenders rather than a creation of a new statutory offense (“driving under the influence, fourth offense”). 14 As such, we held that a charge under that statu te required a bifurcated trial: a guilt phase to prove the DUI in the present indictment and a sentencing phase to prove the previous offenses. 15 We determined that the trial court was correct in granting the defendant’s motion in limine to excl ude evidence of the prior convictions from the guilt phase of the trial, so we remanded the case to the trial court to proceed with the bifurcated trial. 16 In the present case, however, Lewis does not allege that the trial court failed to bifurcate the trial , nor did t he Commonwealth attempt to introduce evidence of Lewis’s prior convictions. The error made by the trial court in

14 Commonwealth v. Ramsey , 920 S.W.2d 526, 528 (Ky. 1996).

15 Id . at 528

– 29.

16 Id

.8

reading Lewis’s full indictment to the jury during the guilt phase did not have the prejudicial effect we sought to avoid in Ramsey because the jury in the present case was admonished to disregard the information, and we presume the admonition to be curative. We do not find that this Court’s decision in Ramsey compels us to deem the error committed in Lewis’s case to be gravely prejud icial , requiring a mistrial. Overall, Lewis fails to state how his case was prejudiced in such a way
that necessitates a mistrial rather than an admoni tion

. Instead, Lewis makes hay of the fact that this error occurred at an early stage in the proceedings , before voir dire had been conducted and the jury sworn in. He argues that it is the responsibility of the trial court to err on the side of caution and empanel a new jury when an error occurs so early in the proceedings. We find Lewis’s focus on judici al economy to be immaterial to our analysis. Instead, we consider only the extent of potential prejudice to the defendant resulting from
the error. Because we find no manifest injustice in the trial court’s decision to deny Lewis’s request for a mistrial , we find that the trial court did not err in correcting the error by providing the jury with an admoni tion to disregard the reading of the indictment. 17 We presume that the jury followed such admonition, curing any error that occurred. 18

17 Lewis failed to raise an objection to the language of the admonition itself, so we decline to analyze its efficacy here and instead accept its curative presumption.

18 Johnson v. Commonwealth , 105 S.W.3d 430, 441 (Ky. 2003).9

B. The trial court di d not err in allowing post
- arrest photos of Lewis to be admitted into evidence. During pre
- trial discovery, the Commonwealth provided Lewis with several photographs it intended to introduce into evidence. The photographs were images of Lewis’s tattoos tha t were taken while Lewis was in police custody for the charges in the present indictment. The Commonwealth intended to introduce the images for the purpose of identification

— to prove that Lewis was the individual depicted in the body

- camera footage sellin g heroin to Sweigart. Lewis objected to the introduction of the photos on the grounds that they violated his Fourteenth Amendment right to due process and
a fair trial. We review evidentiary rulings concerning the admission of evidence
under an abuse

- of

- discretion standard. 19 We will disturb the trial court’s decision only if we find it to be “arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” 20 In order to be admissible, evidence must be relevant, meaning that it has a tendency t o either prove or disprove an element of the offense at issue. 21 The determination of relevance is within the discretion of the trial court, and our laws of evidence “tilt[] heavily toward admission over exclusion, for there is an inclusionary thrust in th e law that is powerful and unmistakable.” 22 In this

19 Rucker v. Commonwealth , 521 S.W.3d 562, 569 (Ky. 2017).

20 Commonwealth v. English , 993 S.W.2d 941, 945 (Ky. 1999).

21 KRE 4 02; Tuttle v. Perry , 82 S.W.3d 920, 922 (Ky. 2002).

22 Tuttle , 82 S.W.3d at 922 (quoting R obert G. L awson, The Kentucky Evidence Law Handbook § 2.05, at 53 (3d ed. , Michie Co. 1993) ).10

case, because Lewis pleaded not guilty to the charged offenses, the identity of the person depicted in the body camera footage selling heroin was highly
relevant to the case. In this regard, the trial co urt did not err in admitting the photographs into evidence.
B eyond relevancy, Lewis objects to the admission of the photographs on Fourteenth Amendment grounds, claiming that admission of the photographs
violate s his due process right to a fair trial. Lew is contends that the photos reveal to the jury that he was in jail because they include slivers of his orange prisoner’s clothes and display a background of cement block walls. Lewis likens the admission of the photographs into evide nce to cases in which a defendant is required to attend his own trial in prison clothes or shackles. In such cases, both this Court and the United States Supreme Court have found
that requiring the defendant to be tried while in prison clothes , over the defendant’s objection, i s in violation of that defendant’s right to a fair trial. 23
In Scrivener v. Commonwealth , this Court found that the trial court committed reversible error when it denied a defendant’s request for a
continuance so that the defendant could be tried in street clothing rather than prison clothing. Relying on the United States Supreme Court’s decision in
Estelle v. Williams , we held that requiring a defendant to be tried in prison clothing creates a “possible impairment of the presumption [of innocence] so
basic to the adversary system” such that it would be “repugnant to the concept

23 Scrivener v. Commonwealth , 539 S.W.2d 291, 292 (Ky. 1976); Estelle v. Williams , 425 U.S. 501, 512 (1976).11

of equal justice embodied in the Fourteenth Amendment.” 24 We fail to find Lewis’s case so analogous to Scrivener to come to the same result. Lewis urges us to apply the test set out by the Kentucky Court of Appeals
in Redd v. Commonwealth to determine the admissibility of the photographs

. 25 In that case, the defendant’s mug shots from previous incidents were admitted into evidence and identified to the jury as such. The court held t hat, in order for the introduction of the mug shots to be proper, “ (1) the prosecution must have a demonstrable need to introduce the photographs; (2) the photos themselves, if shown to the jury, must not imply that the defendant had a criminal record; and (3) the manner of their introduction at trial must be such that it does not draw particular attention to the source or implications of the photographs. ” 26 In applying this test, the court found that the admission of the defendant’s mug shots constituted r eversible error because the photographs and their introduction implied that the defendant had a criminal record and drew particular attention to that record. 27 The test applied by the court in Redd was adopted from United States v. Harrington , a Second Circ uit Court of Appeals case in which the court examined the permissibility of introducing a mugshot into evidence. 28 In this case, however, the images at issue are not mug shots , nor are they readily

24 Scrivener

, 539 S.W.2d at 292 (quoting Estelle , 425 U.S. at 504).

25 591 S.W.2d 704, 708 (Ky. App. 1979).

26 Id

. 27 Id

. 28 490 F.2d 487, 494 (2nd Cir. 1973).12

recognizable as having been taken while the defendant was in police custody. To put it simply, the images bear no “badges of custody.” 29 Instead, we find the images to be ordinary depictions of the defendant’s physical attributes. As such, we consider their admissibility not under the Redd test but simply under the KRE 403 balancing test. 30 KRE 403 provides an exception to the admission of relevant evidence: “[E] vidence may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the ju ry, or by considerations of undue delay, or needless presentation of
cumulative evidence. ” In applying this rule, we must consider whether the probative value of the photos of Lewis’s tattoos substantially outweighs the danger of undue prejudice caused by the images.
We first consider the prosecution’s purpose in introducing the photographs into evidence

. Because Lewis contests the trafficking charge against him, photographic evidence proving the identity of the person depicted in the body

- camera footage is highly probative. The Commonwealth did not request Lewis to ex hibit his tattoos at trial, so this evidence is best introduced to the jury through photographic evidence. We find that the photographic

29 Deal v. Commonwealth , 607 S.W.3d 652, 666 (Ky. 2020).

30 If the photos in this case included “badges of custody,” the appropriate test for determining their admissibility would be the test outlined by this Court in Deal v. Commonwealth , 607 S.W.3d 652, 663 (Ky. 2020). Although the test in Deal is similar to th at in Redd , it also incorporates several United States Supreme Court decisions and opinions of this Court published after Redd

. However, because no “badges of custody” existed in the photos in this case, we need not reach that analysis here.13

evidence establishing the identity of the individual depicted in the body

- camera footage is highly probative. Next, we consider whether the photographs of Lewis admitted into evidence imply that he has a criminal record such that his case is prejudiced

. The images in question were modified t o hide Lewis’s prison er’s clothin g as well
his location. Although the images still contain slivers of orange prisoner’s clothing and a background of cement block walls, we do not find these images to communicate that Lewis was in police custody when they were taken. Thus, we do not find the images to prejudice Lewis’s case. Additionally, we recognize that jurors are aware that the defendant on trial was, at some point, arrested and placed in police custody prior to trial. So even if the jurors inferred that these images were generated while Lewis was in custody, we do not find that this created a necessary implication that Lewis had been charged or convicted of crimes prior to those at issue in this case. We find that the probative value of the photogra phs admitted substantially outweighs any possibility of prejudice to Lewis and, as such, the trial court did not err by admitting the photos into evidence.

III. CONCLUSION For the reasons stated, we affirm the judgment. All sitting. All concur.14

COUNSEL FOR APPELLANT : Karen Shuff Maurer Assistant Public Advocate

COUNSEL FOR APPELLEE : Daniel Cameron Attorney General of Kentucky Bryan D. Morrow Assistant Attorney General Office of the Solicitor General