# IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINIONISDESIGNATED "NOTTOBE PUBLISHED." PURSUANT TOTHERULES OFCIVILPROCEDURE PROMULGATED BY THE SUPREME COURT, CR76.28(4)(C), THIS OPINIONISNOTTOBEPUBLISHEDAND SHALLNOTBE CITED ORUSED AS BINDING PRECEDENTINANY OTHER CASE INANY COURT OFTHIS STATE; HOWEVER,
_ UNPUBLISHED KENTUCKYAPPELLATE DECISIONS, RENDERED AFTERJANUARY 1, 2003, MAYBE CITEDFOR CONSIDERATIONBY THE COURTIFTHEREIS NO PUBLISHED OPINIONTHATWOULD ADEQUATELYADDRESS THEISSUE BEFORE THE COURT. OPINIONS CITEDFORCONSIDERATION BY THE COURT SHALLBE SET OUTAS AN UNPUBLISHED DECISIONINTHEFILEDDOCUMENTAND A COPY OFTHE ENTIREDECISION SHALLBE TENDEREDALONGWITHTHE DOCUMENTTOTHE COURTAND ALLPARTIESTOTHE ACTION.RENDERED: APRIL 26, 2018

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### ,l>CPAUL COOK APPELLANT
ON APPEAL FROM CHRISTIAN CIRCUIT COURT V. HONORABLE ANDREW C. SELF, JUDGE NO. 15-CR-00065
COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT AFFIRMING Appellant, Paul Cook, was indicted for three counts offirst-degree incest (victim under twelve), three counts offirst-degree sodomy (victim under twelve), three counts offirst-degree sexual abuse (victim under twelve), and three counts offirst-degree unlawful transaction with a minor (victim under sixteen). Cook's case proceeded to trial in the Christian Circuit Court. In Cook's first trial, his defense counsel referred to Cook's eagerness to take a polygraph test during his opening statement. The trialjudge ultimately granted the Commonwealth's motion for a mistrial. When a second trial was scheduled after the mistrial, Cook filed a motion to dismiss basedupon doublejeopardy. The trial court denied the motion and the second trial began with a different jury. Before the trial courtinstructed thejuryin the second trial, two ?fthe counts ofunlawful transaction with a minor were dismissed. A Christian Circuit Courtjuryconvicted Cook ofthe remaining counts. He was sentencedto twenty-five years' imprisonment. Cook now appeals this conviction 

### a:s a matter ofright, Ky. Const. § 110(2)(b).
I. BACKGROUND The charges against Cook involved his alleged sexual abuse ofhis stepdaughter, Sandy.1 Sandy made the allegations ofabuse while visiting her father and sister, leading to a police investigation. The details ofthose allegations are largely imr.naterial to the current appeal. However, to the extent necessary for our analysis, Sandy's testimony will be discussed below. When police interrogated Cookregarding the abuse, a detective apparently asked ifhe would take a polygraph examination. In his opening statementin the first trial, defense counsel stated: The pqlice aren't really**ther:~** to help you when they've gotyou in a little room askingyou questions. They're there to get evidence, and [Cook] never admitted to doing anything wrong. His story,, never changed. In fact, when the detective asked him ifhe'd take a lie detector test, hejumped on the opportunity. He wants to prove his innocence. The Commonwealth immediately objected to this reference, and a bench conference ensued. During the bench conference, the parties_discussed the appropriate remedyto cure the inadmissible statement regarding the polygraph. The Commonwealth first suggested defense counsel had opened the door to the polygraph results (which were not in**Coo~'s** favor), and the trial court should, therefore, allow the introduction ofthose results. After the trial

1Throughout this opinion, the minpr victim's name has been changed to protect her anonymity. 2judge declined to do so, the Commonwealth agreed to an admonition, but conditioned that agreement upon an opportunityto do more research on the issue and revisit it after the first break.2 The trial'court admonished thejury ! that it: [S]hould disregard any reference to a polygraph test for a number ofreasons. The most important ofwhich is that polygraph test results are not admissible in a court oflaw. You should not conclude that Mr. Cook either took or did not take a polygraph test based upon what has been mentioned at this point. And, certainly, you should disregard in general any reference to a polygraph test. After the admonition, defense counsel gave the remainder ofhis opening statement, and then the.Commonwealth began its case in chief. Although the

. ' ' admonition instructsjurors that polygraphs are inadmissible andthey should ignore any mention ofpolygraph testing, it fails to address defense counsel's statement that Cook "jumped at the chance" to take the polygraph or any ( . inferences thejury may draw therefrom. The admissibility of

# apolygraph is a different issue than Cook's eagerness to take the test and the implication that he had total confidence that itwould establish his innocence. The Commonwealth called Sandy as its first witness, and, at the conclusion ofher testimony, the trial recessed for lunch. During the recess, '

2 During the.bench**~onference,** the Commonwe'alth stated: "Canwe go ahead and get in an option ifmaybe on a break, ifwe can find anything, that would-." At this point, the trialjudge cutthe Commonwealth off.in mid-sentence. At the end of the lunch break, the Commonwealth asked to discuss the proper remedy. The trial dourt, Commonwealth, and defense counsel did so duringa meetingin thejudge's chambers. There, the Commonwealth stated: "I requested, even though youjust admonished thejury, that·on our next breakI'll do research to see ifI have any other remedies." Defense counsel did not contradict or in anywayindicate that this was an incorrect statement ofthe proceedings. 3the Commonwealth indicated to the'trial court that it wanted to address an issue and a meeting between thejudge, the-Commonwealth, and defense counsel took place in the trialjudge's chambers. At the meeting, the Commonwealth stated it had researched the issue and now believed a mistrial
was the appropriate remedy for the polygraph reference. Specifically·, the Commonwealth stated: Yes, Judge. As I made the court aware when we were at the bench earlier after the objection was made regarding the polygraph test, the mention ofit during [defense counsel's] opening, I requested, even though youjust admonished thejury, that on our next break I'll do research to see ifI have any otherremedies. Because, I thought thatwould have opened the door or ·something like that for its introduction. That_'s not true. Pretty much all polygraphs are inadmissible in Kentucky. At this time, due to the research, our onlyrecourse_. .. is to ask for a mistrial. I don't think an· admonition is enough. In the case law
. . ..where there is a clear inference there was a result and-that the result was favorable to the party that mentions it, it's fatal to the case . . . . [A]ll ofus in this room know that polygraphs are inadmissible. We feel like he knowingly misrepresented inadmissible evidence, and the way he framed itwas thatwhen KSP asked [Cook] to take a polygraph test, hejumped at the chance. Now, that"creates an inference that there was a test taken and that itwas favorable because why else would he mention it during his own opening statement. Defense counsel countered that the admonition was good enough, and that thejury could follow the orders ofthe court and disregard the reference to the polygraph test in its deliberations. The trial court granted the Commonwealth's motion for a mistrial. It clarified that it granted the admonition because thatwas the reliefrequested at _the time, but would have granted a mistrial ifthat had been the request. The trial court dismissed thejury aμd set a pretrial date for the second trial. Before the newtrial started,.Cook moved to dismiss, arguing that retrial 4was barred by doublejeopardy. The trial court denied Cook's motion and the
case.proceeded to a second trial. Cookwas charged with three counts ofincest (victim under twelve), three counts ofsodomy (victim under twelve), three ' counts of sexual abuse (victim under twelve) and three counts ofunlawful transaction with a minor (victim under.sixteen). The trial court dismissed two counts ofunlawful transaction with a minor before the case was submitted to thejury. Cookwas convicted ofthe remaining charges. He was sentenced to twenty-five years' imprisonment and now appeals, arguing that the conviction
was barred by doublejeopardy and should be overturned
.. II

..ANALYSIS The doublejeopardy clauses ofthe Fifth Amendment ofthe United States Constitution and Section 13 ofthe Kentl:J.cky Constitution provide that a person may not be placed injeopardy more than once forthe same crime. In examining the doublejeopardy issue in this case, we must first determine whether the mistrialwas properly.granted. "Itis 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 ofan abuse ofthat discretion." 

### Woodard v. Commonwealth, 219 S.W.3d 723, 727 (Ky. 2007), 

### overruled on othergrounds by 

### Commonwealth v.**Prate~,** 324 S.W.3d 393 (Ky. 2010). "[W]hen determiningwhether the trial court abused its discretion in declaring a mistrial, 'it is necessary to examine whether there was manifest necessity to do so, since a mistrial-where no manifest necessity existstriggers a person's constitutional protection against doublejeopardy."' 

### Cardine 5

### v. Commonwealth, 283 S.W.3d 641, 648 (Ky. 2009) (quoting 

### Radford.v. Lovelace, 212 S.W.3d 72, 80 (Ky. 2006)). With that roadmap in mind, we must first de.termine.ifthe trial court abused its discretion in granting the Commonwealth's motion for a mistrial. In order to make that determination, we must examine whether there was a manife_st necessity to declare the mistrial. Ifno such manifest necessity existed, the trial court abused its discretion, thus implicating Cook's right to be free from doublejeopardy. Cook insists there was no manifest necessity for the mistrial. He posits the admonition to thejury cured defense counsel's referenceto the polygraph examination and, therefore, th'e trial court abused its discretion by granting a mistrial. We disagree. The trial court acted within its discretion in determining that the polygraph reference made during opening statements created a manifest necessity for mistrial. In 

### Cardine, 283 S.W.3d at 647-48, this Court quoted the Sixth Circuit Court ofAppeals with approval: "when a mistrial is declared at the behest of

.the prosecutor or on the court's own motion,
... the valued right ofa defendant to have his trial completed by the particular tribunal summoned to sitinjudgment on him, [is balanced] against the public interest in insuring thatjustice is meted out to offenders." 

### Malinovsky v. Court ofCommonPleas of Lorain County, 7 F.3d 1263, 1270-71 (6th Cir.1993). Cook also points this Court to

### Arizona v. Washington, 434 U.S. 497, 508, (1978), which held "[t]hus, the strictest scrutiny is appropriate
... when there is reason to believe that the
6prosecutoris using the superiorresources ofthe State to harass orto achieve ·a tactical advantage over the accused." Cookargues that by declaring a mistrial, the Commonwealth was unfairly given an opportunity to strengthen its case. However, there is no evidence thatwas the case. Cook further argues that the mistrial denied him the opportunity to take advantage ofcircumstances that increased his**cha~ces** ofacquittal and subjected him to a situation where his chances ofbeing convicted were actually increased. Cook's argument in this regard fails. The advantage the Commonwealth might have gained byhaving another chance to procure more favorable testimony from Sandy does not negate the manifest necessity for the ·mistrial-anecessity created by Cook's own trial defense counsel. Furthermore, the defense had the opportunity in the secondtrial to impeach Sandy's testimony based upon any inconsistent statements she made in the first trial. The impeachment ofSandy's testimony would present her original testimony to thejury._ Any inconsistencies in her testimony may weaken the weightthejury gives her testimony ofCook's other criminal acts. ·Therefore, any advantage the Commonwealth may have gained was mitigated by the defense's ability to impeach Sandy. Cook labels Sandy's testimony during the first trial as disastrous for the Commonwealth and insists it left him with a good chance ofbeing acquitted. While Sandy answered some questions differently than in her interview, and denied recalling other specifics, she answered many ofthe Commonwealth's ' questions. Specifically, when the Commonwealth asked her "So he made you 7touch his dick with what? With your hand?" Sandy responded, "Yes." When the Commonwealth asked Sandy, "Did he ever make you-at that time, um, whenyou.were on your parents'bed, did he ever make you putyour mouth on his dick?" Sandy also responded in the affirmative. Another exchange between the Commonwealth and Sandywent as follows: Commonwealth: Didyou ever go with Paul to, um, pick up Caleb at school? Sandy: Yes. Commonwealth: Okay. Can you teJl us ifanything happened during those times? Sandy: Yes. Commonwealth: Tell us about that. Sandy: Well, since we were waiting too long, we went down tQ---,-into a parking lotCommonwealth: Uh-huh ·Sandy: -atthese stores-theywere in the truck and he started to make me put my mouth on his priv;:tte part. Commonwealth: Ok_ay. Did it happenjust one time or·more than one time? Sandy: More. Commonwealth: Okay. Okay. Would he ever touch you,when he would do that? Sandy: N_o. Commonwealth: Okay. Would he touch himselfwhen you did that? Sandy: Yes.

8With this testimony in mind, the Commonwealth's advantage as portrayed by Cook is certainly lessened. >While the evidence may have been

.**~** . \ stronger atJthe second trial, there was certainly not a void of such in the first. There is no evidence the Commonwealth used its motion for a mistrial to gain a tactical advantage. Rather, defense counsel created a manifest necessity ' through its comments regarding the polygraph, which he knew or should have known were inadmissible and highly prejudicial. As noted, the retrial also gave the defense the· opportunity to impeach Sandywith her testimony from'the first

. ' trial. Cook insists that a manifest necessity to**gran~'the** mistrial did r:iot exist here, as an admonitic;m cured any'error brought about. We noted in 

### Johnson**v~** 

### Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003), "[a]juryis presumed to follow

\ an admonition to disregard evidence and the admonition thus cures any error." We went on in tl;at case to enumerate exceptions to that general rule: There are only two circumstances in which the presumptive efficacy ofan admonition·falters: (1) when there is an overwhelming probability that thejurywili'be unable to follow the court's admonition and there is.a strong likelihood that the effect ofthe inadmissible evidence would be devastating to the defendant; or (2) when the question was asked without a factual basis and was "inflammatory'' or "highly prejudicial'."

.Id. (internal citations omitted). In this case, defense counsel stated Cook "jumped at" the opportunity to take a polygraph examination to prove his**i~nocence.** The Commonwealth objected, and an admonition was granted as a remedy. Again, the admonition stated:
9.. · [Y]ou should disregard any reference to a polygraph test for a number ofreasons. The most important ofwhich is that polygraph test results are not admissible in a court**~flaw.** You should not conclude that Mr. Cook either took or did not take a polygraph test based on what had been mentioned at this point. And, certainly, you should disregard, in general, any reference-to a polygraph test. · This admonition was inadequate to address the polygraph reference. Here, the general presumption that the admonition cured the**~rror** is rebutted by "an overwhelming probability that thejurywill be unable to follow the court's admonition and there is a strong likelihood that the effect ofthe inadmissible evidence would be devastating" to the Commonwealth's case. Id. The admonition did not go to Cook's eagerness to take the polygraph, and it was impossible for the Commonwealth to contradictthe inference that Cook, therefore, passed the polygraph. The effect ofthe inadmissible statement was devastating to the.Commonwealth's case. ·Furthermore,**Johnson~s** second exception also applies in the case at bar. The "fact" that Cook took a polygraph was inadmissible. Therefore, so far as this case is concerned, there is no factual basis for defe!}se counsel's statement. Defense counsel knew (or, at the very least, should have known)

·the Commonwealth could ndt rebut the inference thejury could draw from his

statement. The impactwas highly prejudicial. In Ice v. Commonwealth, 667 S.W.2d 671, 675 (Ky. 1984), this Courtheld that the mere mention ofa polygraph examination was prejudicial. Therein we**~eld,** "[w]e have not only excluded the evidence ofpolygraph examiners, but excluded mention ofthe taking ofa polygraph, the purpose ofwhich is to

. ' 10bolster the claim ofcredibility 'or lackofcredibility ofa particularwitness or defendant." Here, trial defense counsel's statement that Cook "jumped at" the opportunityto take a polygraph to prove his innocence raises an inference that notonly did Cook take the polygraph test, butthat the results were favorable to his defense. As the Commonwealth pointed out at trial: why else would defense counsel·bringup the test in his opening statement? This inference prejudiced the Commonwealth's interest in the pursuit ofjustice. I

. Itis clear that a greatpotential forjurybias existed after Cook's attorney's opening statement. "[T[his Court and our predecessor·court have long disapproved evidence not only about theresults ofpolygraph exams, but
even about offers or refusals to take them." Lee v. 'Commonwealth, No. 2012- SC-000796-MR, 2014 WL 4160143, at *4 (Ky. Aug. 21; 2014) citing Roberts v.

. . Commonwealth, 657 S.W.2d 943 (Ky.1983) (citations omitted). "[I]ntroduction ofevidence that a defendant failed a polygraph exam, even evidence merely implying such a failure, we have held to be an error warranting a mistrial." Id. (citing Morgan v. Commonwealth, 809 S.W.2d 704 (Ky.1991)). As noted, "when dete:i:-mining whether the trial court abused its discretion iri declaring a mistrial, 'it is necessary to examine whether there was manifest necessity to do so, since a mistrial-where no manifest necessity exists-triggers a person's constitutional protection against doublejeopardy."' Cardine v. Commonwealth, 283 S.W.3d 641, 648 (Ky. 2009) (citing Radford v.

· Lo,velace, 212 S.W.3d 72 (Ky. 2006)). Cook argues that the polygraph reference ·

did not constitute a manifest necessity for a mistrial as the reference_was not 11clear that a polygraph test had beengiven or that there was

# aclear inference
as to the results ofthe test. However, "[m]anifest necessity has been described
as an 'urgent or real necessity,.' The propriety ofgranting a mistrial is determined on a case by case basis." 

### Commonwealth v. Scott, 12 S.W.3d 682, 684 (Ky. 2000). The requisite degree ofmanifest**n~cessity** for granting a mistrial was satisfied in this case, as the reference created an inference as to the results of the polygraph test. This Courthas held that "[t]here must arise

# aclear inference that there was a result and that the result was favorable, or some other manner in which the inference could be deemed prejudicial." 

### Morgan v. Commonwealth, 809 S.W.2d 704, 706 (Ky. 1991) (citing 

### McQueen·v. Commonwealth, 669 S.W.2d 519 (Ky. 1984)). The manner in which defense counsel referred to the polygraph test and the eagerness ofCookto take the examination, gives rise to an inference that the result ofthe polygraph exam
was favorable to Cook. Furthermore, "[w]hen determining whether there was manifest necessity
.. to declare a mistrial, we must considerwhether the statements made
... constitute 'improper evidence which prejudice[d].the Commonwealth's right 

### t6
. a fair trial."' 

### Sneed v: Burress, 500 S.W.3d 791, 793 (Ky. 2016). Cook's

attorney's statements refer to inadmissible evidence that the Commonwealth is not able to counter. Therefore, the Commonwealth's right to a fair trial is prejudiced.

12In reviewing a mistrial, "we accord the highest degree ofrespect to the trialjudge's evaluation,ofthe likelihood that the impartiality ofone or more jurors may have been affected by the improper comment." 

### Arizonav. Washington, 434 U.S. at 511. Here, defense counsel referred to inadmissible evidence during his opening statement. It is true that "[o]pening and closing statements are not evidence and wide latitude is allowed in both" 

### Wheeler v. Commonwealth, 121 S.W.3d 173, 180 (Ky. 2003), however, this Court cannot extend thatlatitude to include the reference ofa polygraph.test. "[T]he principle ofdoublejeopardy does not prevent re-trial ifthe proceedings are terminated because '[t]he trial court, in exercise ofits discretion finds that the termination is manifestly necessary."' 

### Commonwealth
v. Scott, 12 S.W.3d 682, 684 (Ky. 2000). We hold that the trial court did not abuse its discretion in finding a manifest necessity to declare

# amistrial. Cook's retrial was not barred by doublejeopardy as thetrial court did not abuse its discretion in the declaration ofa mistrial.

. III. CONCLUSION For the foregoing reasons, we affirm Appellant's convictions and corresponding sentence. All sitting. All concur.

13. '

COUNSEL FORAPPELLANT: Michael Thompson Oak Grove, KY Allison Coffeen Mohon Mohon Law
COUNSEL FORAPPELLEE: Andy**Beshe~r** Attorney General ofKentucky Joseph A. Be.ckett

. AssistantAttorney General

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