HERRERA-GARCIA v. Commonwealth
v.
COMMONWEALTH of Kentucky, Appellee.
Court of Appeals of Kentucky.
J. Brandon Pigg, Frankfort, Kentucky, Brief for Appellant.
Jack Conway, Attorney General of Kentucky, Michael L. Harned, Assistant Attorney General, Frankfort, Kentucky, Brief for Appellee.
Before: CAPERTON and THOMPSON, Judges; GRAVES,[1] Senior Judge.
NOT TO BE PUBLISHED
OPINION
GRAVES, Senior Judge.
Javier Herrera-Garcia was convicted of first-degree sexual abuse. He received a sentence of two years' imprisonment. On appeal, Herrera-Garcia argues that he was entitled to a mistrial because of an improper reference to his immigration status. We affirm.
Herrera-Garcia and his 17-year-old son Edgar live in Lexington, Kentucky. They shared a residence with Herrera-Garcia's girlfriend, Elvia Jamiez, and her two children, 11-year-old Rodrigo and 13-year-old G.V. On the night of December 13, 2006, G.V. awoke to someone touching her. She saw HerreraG-arcia kneeling beside her bed with his hand inside her underwear. G.V. said "Javier" and he responded for her to be quiet. He then left the room. HerreraG-arcia returned to the room a few moments later and touched G.V. inside her underwear again. G.V. again said "Javier" and he left the room.
The next morning Jaimez discovered Herrera-Garcia playing with Rodrigo in the children's bedroom. G.V. was crying and hiding under the covers and would not get out of bed. G.V. told her mother that someone had touched her during the night. At first, she would not say who it was, but then stated that it was Herrera-Garcia. Herrera-Garcia and Edgar both denied touching G.V. Jaimez ordered both of them out of the house and sent Rodrigo to notify the police.
Herrera-Garcia maintained his innocence in interviews with the police. Edgar also initially denied committing the crime in interviews with the police. However, after his father was charged, Edgar came forward and told police that he was the one who had touched G.V. Nevertheless, Herrera-Garcia was charged with the offense. At trial, Edgar testified on behalf of his father and continued to state that he had committed the offense. The jury found HerreraG-arcia guilty of first-degree sexual abuse. Herrera-Garcia received a sentence of two years' imprisonment. This appeal followed.
Herrera-Garcia argues that he was entitled to a mistrial because of an improper reference to his immigration status. During the cross-examination of Edgar, the Commonwealth asked him if he knew if his father was an American citizen. Defense counsel immediately objected and the trial court sustained the objection. At the bench, defense moved for a mistrial. The trial court denied the motion for a mistrial, but admonished the jury to disregard the question. HerreraG-arcia argues that the admonition was insufficient to cure the harm.
The decision to grant a mistrial is committed to the sound discretion of the trial court. Martin v. Commonwealth, 170 S.W.3d 374, 381 (Ky. 2005). A mistrial is appropriate only if there is a manifest necessity. Id. It is presumed that a jury will follow the trial court's admonition. Id. There are two exceptions which overcome the rule that admonitions cure possible prejudice:
(1) when there is an overwhelming probability that the jury will be unable to follow the court's admonition and there is a strong likelihood that the effect of the 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."
Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003) (internal citations omitted).
Although Herrera-Garcia asserts that the Commonwealth attempted to inject anti-immigrant or anti-Hispanic prejudice into this case, the context of the cross-examination proves otherwise. The Commonwealth was simply trying to explore any motives Edgar might have had to fabricate testimony in order to save his father. Prior to the question about immigration status, Edgar had already admitted that he had changed his story to the police after his father was charged and that he knew that juveniles are treated differently than adults in courts of law. The question regarding Herrera-Garcia's immigration status was never answered. The record reflects that the trial court carefully weighed the situation. The trial court did not allow the Commonwealth to question Herrera-Garcia's immigration status outright. However, the Commonwealth was permitted to ask Edgar if his testimony was tainted by concern that his father would be treated more harshly than him. Edgar replied "maybe." The Commonwealth's questioning was not without a factual basis nor are we convinced that the jury was unable to follow the trial court's admonition. The trial court properly exercised its discretion in denying Herrera-Garcia's motion for a mistrial.
Accordingly, the judgment of the Fayette Circuit Court is affirmed.
ALL CONCUR.
[1] Senior Judge John W. Graves sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.
