RENDERED: DECEMBER 13, 2018

TO BE PUBLISHED

2017-SC-000441-DG

2017-SC-000661-DG

COMMONWEALTH OF KENTUCKY APPELLANT/

CROSS-APPELLEE

ON REVIEW FROM COURT OF APPEALS

V. 2015-CA-000737-MR

DAVIESS CIRCUIT COURT NO. 14-CR-00306

MICHAEL PADGETT APPELLEE/

CROSS-APPELLANT

OPINION OF THE COURT BY JUSTICE KELLER

AFFIRMING

After a mistrial, Michael Padgett was tried and convicted by a Daviess

County jury for Assault, third degree. At his second trial, he was also charged

and convicted as a persistent felony offender (PFO) in the first degree. The jury

recommended an enhanced sentence of ten years. The circuit court sentenced

Padgett accordingly. On direct appeal, the Court of Appeals vacated his

sentence, finding that the second trial violated Padgett ’ s rights against doublejeopardy. The Commonwealth moved this Court for discretionary review, which

we granted. After careful review of the record and law, we now affirm the Court

of Appeals.

I. BACKGROUND

On February 9, 2014, Padgett was housed at the Daviess County

Detention Center (DCDC), in the B-pod. He was in a cell alone and covered the

window to his cell, so that on-duty deputies could not see inside. He proceeded

to kick the door, causing a loud disturbance. Deputies ordered Padgett to

remove the obstruction in the window, but he refused. The officers entered

Padgett ’ s cell, handcuffed him, and removed him from the cell to place him in

the “ Emergency Restraint Chair ” (ERC). The ERC is a chair used to restrain

prisoners when they are potential dangers to themselves or others; it binds

them to their chair at several points (waist, feet, arms) so that the prisoner is

prohibited from moving and causing potential damage. Chad Payne, then

Sergeant Payne, was the supervising officer on duty. He responded to the

scene as Padgett was being removed to the ERC. During the melee, Padgett

spit in Payne ’ s face. Payne ordered another officer to tase Padgett and Padgett

was then successfully restrained.

The Commonwealth disclosed two reports to the defense regarding

Payne: (1) a report of excessive force with another inmate and (2) a write-up

and demotion for making false and unauthorized statements. Payne was

demoted from Sergeant to Deputy as a result of the second report. The

Commonwealth moved, prior to trial, to exclude “ the materials ” as irrelevant.

2The defense objected, arguing that the report of excessive force was relevant to

Padgett ’ s claim of self-defense and that both reports were admissible for

impeachment purposes. On September 22, 2014, the court heard arguments

on the motion. Relevantly, there was no written order from the court on this

motion. 1 The hearing itself was an amalgamation of multiple pre-trial issues

including

jury instructions and the availability of self-protection as a defense to

third-degree assault; intertwined within these arguments was reference to the

evidence regarding Payne. The trial judge ’ s order was not abundantly clear;

however, at that time, the judge stated:

For impeachment purposes, that may be permitted but I ’ m just

telling you, I don ’ t see it right now. And all I can tell you is that on

your motion, I can exclude it up to a point but during trial,

depending upon what the testimony is, I very well might allow it.

But I can ’ t see it right now. I don ’ t see me allowing that evidence in.

It would seem that what “ may be permitted ” were the reports on Payne ’ s

disciplinary history. At the parties ’ questioning, the court continued:

Oh, it might [be relevant] if what he did was improper. I can ’ t see it.

I don ’ t see it. But it might come off of the witness stand that

somehow this was improper. I don ’ t know. I don ’ t hear

- you haven ’ t

told me if

- right now, I ’ m not going to admit that

... evidence as we

sit here. You know. And I think there has to be something more

... But I don ’ t want to preclude that. At trial, you never know what

comes up half the time

... I ’ ll put it this way. If that evidence

- that evidence, that information

um will not be permitted at trial unless and the only thing that I

think I can see as far as impeachment is somehow during the

testimony of Sergeant Payne, maybe somebody else too, but at that

point it becomes necessary

- I can ’ t see it. I

- I don ’ t see it. But I

1 The Commonwealth cites to the Trial Record at pages 21-22 for the trial

court ’ s order. However, this citation only leads to the Commonwealth ’ s motion; no

such written order from the court is contained anywhere in the record prior to

Padgett ’ s first trial and the order of mistrial.

3don ’ t want to rule right now with finality, saying there ’ s no

- under

no situation or circumstances it ’ s not coming in

-

Right. I ’ m saying that, unless there is something during the

testimony or some evidence that somebody puts on that all of a

sudden makes that significant and relevant, it ’ s not going to be used

at trial.

In response to the court ’ s statements, defense counsel attempted to clarify

further:

Judge, if I may address that

- I think that you ’ re talking on the

disciplinary report? The write-up? Okay. As to the demotion

- which is a separate issue, um, I did want to mention that, of course,

anytime there ’ s instances of dishonesty that you cross-examine a

witness on, usually it ’ s about things that aren ’ t necessarily directly

connected but you can always question somebody about their

veracity and truthfulness

...

The parties then transitioned into discussion on self-protection as a defense to

third-degree assault and self-defense in response to law enforcement.

Padgett proceeded to trial over the next two days. On the morning of

September 24, 2014, 2 the Commonwealth called Chad Payne to the witness

stand. The direct examination proceeded without incident. The following

exchange occurred during cross-examination, however:

DC 3 : So you were a supervising officer at the time of this incident?

CP 4 : [Nods]

DC: And at the time of this incident, what was your rank?

CP: Sergeant.

DC: Are you a sergeant now?

CP: No.

2 At the beginning of proceedings on September 24, the judge stated that the parties

had already discussed two motions in limine in chambers at which he “ reiteratefdj ” his ruling

from the previous day. This discussion was not part of the record and, thus, it is unclear

whether this argument was recorded or preserved. As such, this Court cannot conclude

whether any alleged ruling was made clearer as a part of those discussions.

3 Defense counsel.

4 Chad Payne.

4CW 5 : Approach, your Honor.

[At bench]

TJ 6 : What was the purpose of that?

DC: I was just inquiring about his rank. I ’ m not going any further.

TJ: You better not go any further.

DC: I ’ m not.

CW: Your Honor, you can ’ t un-ring a bell. I have to ask for a

mistrial. We have been over this and uh

- [defense counsel]

- we

just went over this. This is totally uncalled for.

TJ: Yeah.

CW: And you cannot un-ring that bell. It is out there. It ’ s before

this jury. And this has wasted two days of everybody ’ s time let alone

a whole lot more.

DC: Judge, every time somebody gets up on that stand, they ask

them where they worked, what their position is. We have to

—

TJ: [Defense counsel], you know better than that.

DC: I ’ m not going any further. Judge, it ends right there.

CW: It ’ s done. That was the whole purpose. We talked about it

prior to this before we started, your honor. That was totally

[unintelligible]. It was totally improper. I ’ m asking that we

- I don ’ t

have a choice but to ask for a mistrial.

DC: Judge, I believe if the court wants to admonish the jury

-

TJ: You know, we ’ ve gone over this.

CW: Can we take a recess?

TJ: Excellent idea. Then I can see you all in chambers.

The argument on the Commonwealth ’ s motion for mistrial was abbreviated:

TJ: [Defense counsel] has violated the conditions of an order I

entered earlier and I don ’ t see uh any justification whatsoever for

that question. And uh, [the prosecutor] has moved for a mistrial.

And uh- now I ’ m wondering whether I can grant a mistrial or

whether an admonition would be appropriate. But uh I don ’ t know

what I can do.

DC2 7 : Your Honor, if I may

- I

- there ’ s not been any mention of a

demotion or promotion, I think, at this point.

TJ: [laughing] He just said it was!

DC2: No, what he said was are you

- Ill let him

— DC: I asked him if he was a sergeant at the time. And then I asked

him if he was no longer a sergeant. I didn ’ t ask him if he ’ s moved

up or down.

5 Commonwealth.

6 Trial judge.

7 Padgett ’ s second defense counsel, who served as first-chair throughout the trial.

However, it was Padgett ’ s other counsel that questioned Payne.

5TJ: I don ’ t see what the purpose of the question was.

DC: Judge, every single time the Commonwealth puts a deputy on

-

TJ: I ’ m going to grant a mistrial. This is crazy. I

- we, we told you

from the beginning that we are not getting into that. And uh- well,

I don ’ t mean to get upset. But I just hate to waste all the time that

we have on something

-

DC: That wasn ’ t my intention, Judge and I apologize

-

TJ: There is no other

- I have no other reason to expect that that

question had anything other than to uh bring out the fact that

Deputy Payne was demoted. I assume

- there ’ s no other basis for

it.

DC2: Your honor, I would respectfully request that we not do a

mistrial. We are second day, we ’ re nearly done. I believe an

admonition is satisfactory. And we don ’ t even have to go into any

more about it. We can simply move on with the rest of this trial. I

don ’ t believe that anything more that ’ s been said is going to harm

this jury. I think they just need to see the evidence, weigh it, and

make a decision. I-I think that a mistrial is a step we don ’ t need to

take. I think that we are able to continue with this trial.

DC: And Judge, I would ask, for the record, to be stated, what the

implication is. If the implication is that he was demoted because of

this incident, that ’ s simply remedied by them asking, were you

sanctioned for this incident? We don ’ t have to get any further for

that.

CW: And Judge

- we have

- we have

TJ: We ’ ve already had

-

CW: We ’ ve had that hearing, your honor

- I ’ m sorry.

TJ: Yeah, yeah, we had. I ’ m going to grant a mistrial. And uh I don ’ t

want to do so. Um mistrials are rare. We um

- a lot of time, a lot of

expense, a lot of expense. And um this is

- this is unnecessary.

Inappropriate. Can you call the jury back in?

The court then dismissed the jury and thanked them for their service. After

Padgett ’ s mistrial, the Commonwealth then indicted him as a PFO, first-degree.

The parties proceeded to the second trial early the next year, at which Padgett

was convicted of one count of third-degree assault. The jury recommended a

sentence of one year to serve, but the sentence was enhanced to ten years after

Padgett was found guilty on the PFO count. After the conviction was vacated

by the Court of Appeals, this Court accepted discretionary review.

6II. STANDARD OF REVIEW

“ It is well established that the decision to grant a mistrial is within the

trial court ’ s discretion, and such a ruling will not be disturbed absent a

showing of an abuse of that discretion. ” Woodard v. Commonwealth, 147

S.W.3d 63, 68 (Ky. 2004). “ The test for an abuse of discretion is whether the

trial judge ’ s decision was arbitrary, unreasonable, unfair, or unsupported by

sound legal principles. ” Webb v. Commonwealth, 387 S.W.3d 319, 324 (Ky.

2012) (quoting Anderson v. Commonwealth, 231 S.W.2d 117, 119 (Ky. 2007)

(citing Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky.

2000)). Additionally, “ a mistrial is an extreme remedy and should be resorted

to only when there is a fundamental defect in the proceedings and there is a

'manifest necessity for such an action. ” ’ Woodard, 147 S.W.3d at 68.

(emphasis added). The cause of the need for mistrial “ 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. ” Id. (emphasis

added).

III. ANALYSIS

Double Jeopardy and the Mistrial Exception

“ No person shall be subject for the same offence to be twice put in

jeopardy of life or

limb. ” U.S. Const

. amend. V. Kentucky has embodied this

same principle in its own Constitution: “ No person shall, for the same offense,

be twice put in jeopardy of his life or limb

... ” Ky. Const. § 13. Despite these

constitutional provisions, “ there are occasions when a second trial may be had

7although the jury impaneled for the first trial was discharged without reaching

a verdict and without the defendant ’ s consent. ” Downum v. United States, 372

U.S. 734, 735-36 (1963). “ Where, for reasons deemed compelling by the trial

judge, who is best situated intelligently to make such a decision, the ends of

substantial justice cannot be attained without discontinuing the trial, a

mistrial may be declared without the defendant ’ s consent and even over his

objection, and he may be retried consistently with the Fifth Amendment. ”

Wiley v. Commonwealth, 575 S.W.2d 166, 169 (Ky. App. 1978) (quoting Gori v.

United States, 367 U.S. 364, 368 (1978)).

“ Once jeopardy attaches, prosecution of a defendant before a jury other

than the original jury or contemporaneously-impaneled alternates is barred

unless 1) there is a ‘ manifest necessity ’ for a mistrial or 2) the defendant either

requests or consents to a mistrial. ” Meyer v. Commonwealth, 393 S.W.3d 46,

50 (Ky. App. 2013) (quoting Cardine v. Commonwealth, 283 S.W.3d 641, 647

(Ky. 2009) (internal quotation marks and citation omitted)). Thus, “ a retrial is

precluded if the mistrial was granted without the defendant ’ s consent and in

the absence of a manifest necessity to do so. ” Grimes v. McAnulty, 957 S.W.2d

223, 224 (Ky. 1997) (citations omitted).

Jeopardy had clearly and, unrefutably, attached in Padgett ’ s case.

Padgett stringently objected to the granting of a mistrial. Thus, unless there

was a manifest necessity for a mistrial in his case, his retrial was barred by

both the U.S. and Kentucky Constitutions. To understand what may qualify as

8manifest necessity, it is important to understand the exact purpose of a

mistrial and what a mistrial is not intended to do.

Mistrial as an Extreme Remedy

“ [A] mistrial is an extreme remedy and should be resorted to only when

there is a fundamental defect in the proceedings and there is a ‘ manifest

necessity for such an action. ” ’ Woodard v. Commonwealth, 147 S.W.3d 63, 68

(Ky. 2004) (citing Bray v. Commonwealth, 68 S.W.3d 375, 383 (Ky. 2002)). “ 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. ” Woodard, 147 S.W.3d at 68 (quoting Gould v.

Charlton Co., Inc., 929 S.W.2d 734, 738 (Ky. 1996)). A trial court ’ s decision to

grant a mistrial must be supported by a “ manifest necessity ” for that decision

in the record. Wiley, 575 S.W.2d at 168 (citations omitted). This necessity

must be “ an urgent and real necessity. ” Id. (quoting Baker v. Commonwealth,

132 S.W.2d 766 (Ky. 1939)).

A mistrial is reserved for unique circumstances in which the prejudice is

so great that a trial cannot continue fairly for both parties. “ [T]he power to

grant a mistrial ought to be used sparingly and only with the utmost caution,

under urgent circumstances, and for very plain and obvious causes. ” Cardine

v. Commonwealth, 283 S.W.3d 641, 647 (Ky. 2009) (quoting Commonwealth v.

Scott, 12 S.W.3d 682, 685 (Ky. 2000) (citing Glover v. McMackin, 950 F.2d

1236, 1240 (6th Cir. 1991))).

9Mistrial is not a Sanction Tool for the Court

A mistrial is not, however, to be used as a sanction tool by the trial court.

The trial court maintains control over the courtroom through several other

methods, including Kentucky Rule of Evidence (KRE) 611 (a) and through its

contempt power. The discretion to grant a mistrial is not for the purpose of

punishing a party for what the court deems as a willful violation of its order. A

mistrial is intended to cure prejudice, not to punish counsel or parties. “ (I]t is

the effect that must meet the mistrial standard, not the audacity of the

perpetrator ’ s defiance. ” Sneed v. Burress, 500 S.W.3d 791, 805 (Ky. 2016)

(Venters, J., dissenting).

When determining whether to grant a mistrial, the trial court must

examine the ju r

y ’ s reaction to what has actually been uttered or presented to

them. The circumstances must be scrutinized from the jury ’ s point of view, not

the court ’ s. The court has much more information than the jury, often

providing much-needed context to otherwise innocuous statements. It is the

prejudice that is of import in making the mistrial decision; if the ju r y ’ s

perception has been so greatly affected by the conduct that proceeding would

be unfair, then a mistrial would be appropriate. But, if an otherwise flagrant

violation of a court order leaves the jury merely unaffected, or is cured by

admonition, then a mistrial is improper, even given a party ’ s impermissible

breach of court order. Notably, even an attorney ’ s attempt to prejudice a jury

does not always equate to actual prejudice; it is the presence of real and

tangible prejudice that creates the need for a mistrial.

10Manifest Necessity and Abuse of Discretion

As previously stated, the decision to grant a mistrial is within the sound

discretion of the trial court. Woodard, 147 S.W.3d at 68 (citing Bray, 68

S.W.3d at 383). This Court still adheres to the legal rule that a trial court is in

the best position to determine the appropriateness of a mistrial, given the

circumstances of each individual case. See Gray v. Goodenough, 750 S.W.2d

428, 429 (Ky. 1988). “ The interest in orderly, impartial procedure would be

impaired if [the trial judge] were deterred from exercising that power [of

discretion] by a concern that at any time a reviewing court disagreed with his

assessment of the trial situation a retrial would automatically be barred. ”

Grimes, 957 S.W.2d at 225 (quoting Arizona v. Washington, 434 U.S. 497, 513

(1978)). “ Declaring a mistrial is an extreme, but sometimes necessary measure

available to the trial arbiter. ” Sneed, 500 S.W.3d at 795. However, our stance

on review does not require this Court to blindly adhere to a decision made in a

trial court ’ s discretion when such a decision was unsound.

In deciding whether manifest necessity exists, “ the judge must always

temper the decision whether or not to abort the trial by considering the

importance to the defendant of being able, once and for all

, to conclude his

confrontation with society through the verdict of a tribunal he might believe to

be favorably disposed to his fate. ” Grimes, 957 S.W.2d at 224 (quoting United

States v. Jo

rn

, 400 U.S. 470, 486 (1971)). A “ reviewing court

... [should] satisfy

itself, ‘ by close examination of the record, ’

... that the trial court did not act

precipitately, but evinced an appropriate concern for the possible double

11jeopardy consequences of an erroneous ruling; gave both the defense counsel

and the prosecutor a full opportunity to explain their positions; and made a

ruling neither irrational nor irresponsible in light of the particular facts. ”

Sneed, 500 S.W.3d at 803 (Hughes, J., concurring) (quoting United States v.

Sloan, 36 F.3d 386, 400 (4th Cir. 1994); citing Washington, 434 U.S. at 514-

15).

Here, there was no manifest necessity for the mistrial. As Justice

Venters noted in his dissenting opinion in Sneed, “ a mistrial is acceptable only

if there is an overwhelming probability that the jury will be unable to follow the

court ’ s admonition and a strong likelihood that the effect of the inadmissible

evidence would be devastating; or if the information presented lacked a factual

basis and was inflammatory or highly prejudicial. ” Sneed, 500 S.W.3d at 805

(Venters, J., dissenting). Having “ viable options precludes a finding of manifest

necessity[.] ” Cardine, 283 S.W.3d at 650.

In Commonwealth v. Scott, this Court determined there was no manifest

necessity to support the trial court ’ s grant of a mistrial. 12 S.W.3d at 685.

During trial, the prosecutor was showing a BB pistol to the jury; the judge

asked him if it was loaded. Id. at 683. The jury laughed and one juror stated,

“ He dudn ’ t [sic] know. ” Id. He proceeded to make further comments about the

gun, at the expense of the prosecuting attorney. Id. After the lunch break, the

Commonwealth moved for a mistrial, citing the juror ’ s statements as a hostile

attitude, showing it would never receive a fundamentally fair trial. Id. “ [T]he

high degree of necessity required for granting a mistrial was not demonstrated

12by Juror B. ’ s perceived hostility toward the prosecutor. ” Id. at 685. Although

the moment may have made the prosecutor “ feel foolish or inept due to an

unexpected turn of events[,] ” such does not mean the “ event would have

prevented the Commonwealth from receiving a fundamentally fair trial. ” Id.

The parties did not question the juror individually; “ [t]here [was] nothing in the

record

... indicating that the jurors were biased against the Commonwealth or

were unable to assess the evidence in an impartial manner. ” Id. “ [I]n the face

of a mistrial and the potential for a bar to re-trial, other remedies should have

been pursued. ” Id.

The Sixth Circuit determined manifest necessity was similarly lacking in

Taylor v. Dawson, 888 F.2d 1124, 1125 (6th Cir. 1989). Defendant, Taylor,

was placed on trial three separate times for the killing of her boyfriend. Id.

The first trial was reversed; the second trial ended in mistrial. Id. The third

trial ended in Taylor ’ s conviction and affirmed on all direct appeals. Id. at

1130-31. She then appealed to the Sixth Circuit Court of Appeals for a writ,

claiming her subsequent prosecution was in violation of the prohibition against

double jeopardy. Id. at 1125. At the second trial, the prosecutor moved the

court to exclude certain prior bad acts of the decedent. Id. at 1126. The judge

did not make a formal ruling, instead stating that the prosecution could object

after any introduction of the evidence and the court would rule at that time.

Id. at 1126-27.

Of course, at trial, the decedent ’ s prior bad acts were introduced at

various times. Id. at 1127-29. The trial court granted a mistrial at the

13Commonwealth ’ s request, stating that the parties violated the court ’ s

admonition that “ there should be no evidence of any prior criminal acts of

either of the parties involved. ” Id. at 1128. However, as the Sixth Circuit noted

from the record, “ instead of granting the prosecutor ’ s motion

..., the court told

the prosecutor he could object as the evidence came in, with the court ruling

when it was seen how the evidence developed. ” Id. at 1129. The prosecution

made only two specific objections to such prior bad acts and one of the

objections was overruled by the trial court. Id. “ The notion that the defense

was somehow guilty of ‘ misconduct ’ in this respect is simply preposterous. ” Id.

Interestingly, at the third trial, “ the Commonwealth made no attempt to

exclude the evidence that had led to the earlier mistrial, and the evidence all

came in. ” Id.

The Sixth Circuit held there was no manifest necessity for a mistrial. In

so finding, the Court determined there was no clear ruling and no clear error,

creating any need for a mistrial.

If the trial court thought that the testimony about [decedent] ’ s bad

acts was reaching the point where it might unfairly prejudice the

prosecution, it was up to the court to make that determination

known to defense counsel. Fundamental fairness required nothing

less-for otherwise, counsel would have no way of knowing that

further testimony along this line might result in a mistrial.

Id. at 1132. Despite the court ’ s reference to counsel ’ s violation of an order as

grounds for a mistrial, “ [n]o such ruling had been made, as far as the record

discloses, before the court declared a mistrial. ” Id. at 1133. The Court

determined the trial court ’ s grant of mistrial was “ erratic, ” “ out-of-the-blue14mistrial, ” “ irresponsible], ” and “ irrational [ ]. ” Id. (internal citations omitted).

“ One cannot read the transcript of Ms. Taylor ’ s aborted trial without

experiencing a sense of amazement when, without any apparent warning at all,

the trial court suddenly declares a mistrial because the jury has heard a

snatch of testimony which, as we know from the subsequent opinions of

Kentucky ’ s appellate courts, would ordinarily be admissible. ” Id. (emphasis

original).

As in Taylor, the trial court ’ s decision here seemed “ out-of-the-blue. ”

From a bystander ’ s viewpoint, without any reference to prior rulings, the

snippet of testimony between defense counsel and Payne was hardly

objectionable. The information gleaned from those few moments was not

prejudicial to the point of requiring a mistrial. The jury, at most, and

assuming the most negative implication possible, determined that Payne had

been demoted from his former rank of Sergeant. It had no information as to

the reason for such a demotion. Fairly, many lay jurors may not even connect

a change from Sergeant to Deputy as a demotion. It would take a further step

of assumption for this Court to hold that the jury not only, from these

innocuous questions, determined that Payne had been demoted but that he

had been demoted for some conduct that had a bearing on his credibility as a

witness. Even if the jury had gathered some objectionable inference from the

testimony, an admonition would have been more than adequate to remedy any

prejudice.

15In the absence of manifest necessity, the court ’ s decision to grant a

mistrial was an abuse of discretion. “ The test for abuse of discretion is

whether the trial judge ’ s decision was arbitrary, unreasonable, unfair, or

unsupported by sound legal principles. ” Sexton v. Sexton, 125 S.W.3d 258,

272 (Ky. 2004) (quoting Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.

1999) (citations omitted); citing Kentucky Nat. Park Com ’ n ex rel.

Commonwealth v. Russell, 301 S.W.2d 214, 217 (Ky. 1945)). “ Abuse of

discretion in relation to the exercise of judicial power implies arbitrary action or

capricious disposition under the circumstances, at least an unreasonable and

unfair decision. ” Russell, 301 S.W.2d at 217. The court ’ s decision to grant a

mistrial was made in the heat of the moment in trial, admittedly, but it was

made without being supported by firm, sound legal principles. The decision

was arbitrary, without explanation of the prejudice it intended to cure through

this extreme remedy. Without a firm basis from the record to find a manifest

necessity for a mistrial, we must hold that the trial court ’ s decision was an

abuse of discretion.

The Commonwealth attempts to compare Padgett ’ s first trial to the case

of Sneed, in which this Court determined there was manifest necessity for a

mistrial. There, during opening statement, defense counsel stated that one of

the Commonwealth ’ s witnesses was “ us[ing] untruthfulness as a mechanism

for revenge. ” Sneed, 500 S.W.3d at 792. The Commonwealth objected and

moved for a mistrial because of the defense counsel ’ s characterization of the

witness. Id. The court denied the mistrial but admonished the jury. Id. Upon

16continuing with opening, defense counsel again stated that there was evidence

as to the victim ’ s lying and stated her lying was “ a known issue. ” Id. The

Commonwealth again moved for a mistrial; this time, the court granted the

motion. Id.

This Court determined that “ [b ] ecause defense counsel ’ s statements

constituted improper evidence which prejudiced the Commonwealth ’ s right to a

fair trial, we cannot say that a mistrial was an inappropriate remedy here. ” Id.

at 795. It was a clear rule of law that counsel cannot state that a witness or

defendant is lying. Id. (citing Moss v. Commonwealth, 949 S.W.2d 579, 583

(Ky. 1997) (citation omitted)). “ The remarks by Sneed ’ s attorney that triggered

the Commonwealth ’ s second mistrial motion occurred within minutes after the

jury was admonished to disregard counsel ’ s previous statement indicating that

one of the Commonwealth ’ s witnesses was lying. ” Sneed, 500 S.W.2d at 795.

“ [DJefense counsel ’ s disregard for the trial court ’ s admonition in the present

case created the circumstances necessitating a mistrial. ” Id. The Court

determined a second admonition would have been fruitless at that point;

“ [d]efense counsel ’ s disregard for the court ’ s ruling likely confused the jury and

certainly brought additional attention to the disputed matter. ” Id.

“ An isolated or discrete statement erroneously impugning the credibility

of witnesses may be considered harmless. ” Id. (citing Meece v. Commonwealth,

348 S.W.3d 627, 664-65 (Ky. 2011)). However, the defense counsel ’ s

statements in Sneed “ were based on evidence that was inadmissible, highly

prejudicial, and in direct contradiction to the court ’ s previous admonition not

17to characterize any witness as a liar. ” Sneed, 500 S.W.3d at 796. As such, the

statements “ prejudiced the Commonwealth ’ s right to a fundamentally fair trial

and, thus, created the manifest necessity for a mistrial. ” Id.

The case now before this Court is in stark contrast to Sneed. First, like

in Taylor, there was no clear order from the trial court on the Commonwealth ’ s

motion in limine. Second, the information presented to the jury was not of the

same inflammatory nature as in Sneed. The Commonwealth knew the

incidents leading to Payne ’ s demotion, and was thus able to infer the

impugning of his character by the questions. However, that prejudice had not

been displayed to the jury at that point. An unoffending question about rank

did not, under these circumstances, create the prejudicial effect that defense

counsel ’ s statements had in Sneed. In Sneed, additionally, the trial court gave

defense counsel an opportunity to correct her objectionable actions and

defense counsel continued in her conduct. Trial counsel was aware that the

statements made were leading to prejudice and persisted. The prejudice, then,

became too great to overcome through other methods. Padgett, in contrast,

was given no such opportunity. The opportunity was still acutely available,

given the harmless questions asked of Payne prior to the Commonwealth ’ s

motion for mistrial. There was also still ample opportunity for an admonition

as needed.

Additionally, the trial court failed to provide the parties with an adequate

opportunity to address the objection to a mistrial. A trial judge should “ g[i]ve

both defense counsel and the prosecutor full opportunity to explain their

18positions on the propriety of a mistrial. ” Grimes, 957 S.W.2d at 227 (quoting

Arizona, 434 U.S. at 515-16). If, in such circumstances, “ the trial judge act[s]

responsibly and deliberately, and accord[s] careful consideration to

[defendant ’ s interest in having the trial concluded in a single proceeding [, ] ”

then such a decision will comport with a proper exercise of discretion. Grimes,

957 S.W.2d at 227 (quoting Washington, 434 U.S. at 515-16). In the midst of

defense counsel ’ s arguments as to the propriety of a mistrial, the trial judge cut

him off mid-sentence and stated he was going to grant a mistrial. There was no

discussion by the parties of the actual prejudice that had occurred. Defense

counsel even asked for a clarification of the “ implication ” of the line of

questioning with Payne yet nothing was explicitly stated on the record. The

trial judge here failed to give due consideration to the interests of the defendant

and the legitimacy of counsel ’ s arguments.

IV. CONCLUSION

For the foregoing reasons, we affirm the Court of Appeals and vacate the

judgment of the Daviess Circuit Court. Because we affirm the Court of

Appeals, we do not address the remaining issues Padgett has raised in his

cross-appeal. The Court of Appeals correctly determined there was no manifest

necessity for a mistrial in Padgett ’ s case. As such, his retrial was barred by the

Fifth Amendment to the United States Constitution and Section 13 of the

Kentucky Constitution. His conviction must be vacated. A mistrial is an

extreme remedy and should be reserved for the rare occasions in which is it

19manifestly necessary to protect fundamental fairness and the rights of the

parties involved.

All sitting. All concur.

COUNSEL FOR APPELLANT/CROSS APPELLEE:

Andy Beshear

Attorney General of Kentucky

Thomas Allen Van De Rostyne

Assistant Attorney General

COUNSEL FOR APPELLEE/CROSS APPELLANT:

Emily Holt Rhorer

Assistant Public Advocate

Shannon Renee DuPree

Assistant Public Advocate

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