Kristina Monroy v. Robert Pence ( 2020 )

RENDERED: DECEMBER 4, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0064-MR
KRISTINA MONROY APPELLANT
APPEAL FROM BOONE CIRCUIT COURT
v. HONORABLE JAMES R. SCHRAND, II, JUDGE
ACTION NO. 18-CI-01328
ROBERT PENCE APPELLEE
OPINION
AFFIRMING
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BEFORE: LAMBERT, MAZE, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Kristina Monroy appeals from a jury verdict which
awarded her $1,001.00 for past medical bills. She argues that she was entitled to a
mistrial, and the trial court erred in not granting her one. We find no error and
affirm.
FACTS AND PROCEDURAL ISSUES
The facts in this case are not in dispute. Appellant was involved in a
car accident with Appellee, Robert Pence. Appellant brought suit seeking damages
for past medical costs and pain and suffering. A trial date was set for November 4,
2019. On October 31, 2019, Appellee’s counsel informed Appellant’s counsel that
they intended to introduce photographs taken from the Facebook page of
Appellant’s husband. These photographs showed Appellant in various activities in
the weeks and months following the accident.1
On November 1, 2019, Appellant filed a motion in limine seeking to
exclude the photographs. Appellant argued, among other things, that the pictures
were untimely. The trial court held that the photographs were not timely produced
and granted the motion. The trial court did state that defense counsel could use
them for impeachment on cross-examination.
Prior to the cross-examination of Appellant’s husband, Appellee’s
counsel reaffirmed his desire to use the photographs. The trial judge reiterated his
holding that counsel could not show the photographs to the jury or hold them up to
where the jury could see them. The judge was afraid that if the jury saw the
pictures, they would be expecting to receive them into evidence. The judge
1
Those activities included boating, kayaking, hiking, and swimming.
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allowed defense counsel to reference the activities in the pictures and the dates of
the pictures while questioning Appellant’s husband.
During cross-examination of Appellant’s husband, defense counsel
brought the pictures up to the podium and began his questioning. Counsel began
flipping through the pictures while questioning the husband and stated that there
were pictures on the husband’s Facebook account of the activities. After some
questioning, the trial judge asked counsel to approach and indicated the trial would
go on a break. After the jury left the room, the judge stated to defense counsel that
he was not supposed to be discussing the photographs or even saying the word
“photo,” but he was doing both. After some back and forth, defense counsel stated
that he was almost done with questioning the husband. Appellant’s counsel did not
ask for an admonishment or a mistrial. The judge then brought the jury back and
defense counsel quickly wrapped up his questioning. It is worth noting that
Appellant’s husband did not deny that Appellant took part in the activities depicted
in the pictures.
The morning of November 5, 2019, Appellant’s counsel filed a
motion for a mistrial. The trial court took it under advisement and allowed the trial
to continue. The trial concluded that day, and the jury returned a verdict. The jury
awarded Appellant $1,001.00 for past medical expenses and zero dollars for pain
and suffering. On December 11, 2019, the trial court entered an order denying
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Appellant’s motion for a mistrial. The court stated that defense counsel did utilize
the photographs in a way that was inconsistent with the court’s previous order, but
held that it could not find that “any possible prejudice suffered by the Plaintiff was
of the character and magnitude that would necessitate a new trial.” The trial court
also took into consideration that the jury did not ask to see the photographs or
question if such photographs existed. This appeal followed.
ANALYSIS
“A trial court has discretion in deciding whether to declare a mistrial,
and its decision should not be disturbed absent an abuse of discretion.” Clay v.
Commonwealth, 867 S.W.2d 200, 204 (Ky. App. 1993) (citing Jones v.
Commonwealth, 662 S.W.2d 483 (Ky. App. 1983)). “The test for abuse of
discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair,
or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d
941, 945 (Ky. 1999) (citations omitted).
It is universally agreed that a mistrial is an extreme
remedy and should be resorted to only when there is a
fundamental defect in the proceedings which will result
in a manifest injustice. 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.
Gould v. Charlton Co., Inc., 929 S.W.2d 734, 738 (Ky. 1996) (citations omitted).
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We do not believe that the trial court abused its discretion in denying
the motion for a mistrial. The trial court’s reasoning for denying the motion was
fair and reasonable. The jury was not directly shown the photographs and did not
ask about them at the conclusion of the evidence. While we agree that defense
counsel did violate the court’s order regarding the pictures, we conclude that the
violation was not a fundamental defect in the proceedings or resulted in manifest
injustice.
In addition, Appellant takes issue with the trial court not admonishing
the jury on this issue. Appellant did not request an admonition; therefore, this
issue is waived. Hall v. Commonwealth, 817 S.W.2d 228, 229 (Ky. 1991),
overruled on other grounds by Commonwealth v. Ramsey, 920 S.W.2d 526 (Ky.
1996).
CONCLUSION
Based on the foregoing, we affirm. The trial court did not err in
declining to grant a mistrial because Appellee’s counsel’s actions did not result in
manifest injustice.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Elizabeth L. Acciani Robert B. Cetrulo
Amanda L. Patton Edgewood, Kentucky
Cincinnati, Ohio
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