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Commonwealth Of Kentucky Court of Appeals
NO. 2005-CA-002249-MR

HARRY W. HUPP

APPELLANT

v.

APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE F. KENNETH CONLIFFE, JUDGE ACTION NO. 05-CI-006020

COMMONWEALTH OF KENTUCKY, REAL PARTY IN INTEREST

APPELLEE

OPINION AFFIRMING ** ** ** ** ** BEFORE: JOHNSON AND WINE, JUDGES; MILLER,1 SPECIAL JUDGE. Harry W. Hupp has appealed from the September

JOHNSON, JUDGE:

29, 2005, memorandum and order of the Jefferson Circuit Court which denied his motion for a writ of prohibition. Having

concluded that the circuit court did not err by denying the motion, we affirm. This case arose from a decision to retry Hupp in the Jefferson District Court on criminal charges of assault in the
1

Retired Judge John D. Miller, sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.

fourth degree,2 terroristic threatening in the third degree,3 and attempting to intimidate a participant in a legal process.4 These charges originated from an incident occurring on October 2, 2004, when Hupp allegedly choked and threatened his live-in girlfriend. The previous trial had been terminated by the

granting of a mistrial when, during cross-examination of the victim, Hupp's counsel questioned the victim about her having sex in an automobile parked in a restaurant parking lot the night before the October 2nd incident. Hupp claimed that his

cross-examination of the victim was proper impeachment of her credibility because she had lied under oath at a previous family court hearing regarding the incident in the parking lot. The district court, in sustaining the Commonwealth's objection and its request for a mistrial, stated: I don't believe that I was unclear in my ruling previously. There was an objection made when you attempted to elicit, attempted to discuss in the opening statement about her having sex with another man in a parking lot. I indicated at that time that I believed that it would be all right to discuss that she was with someone else, but not what they were expressly engaging in, because, I thought the prejudicial effect outweighed any probative value regarding that.

2

Kentucky Revised Statutes (KRS) 508.030. KRS 508.080. KRS 524.040 and KRS 506.010.

3

4

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Hupp sought a writ of prohibition in the Jefferson Circuit Court on the basis that any retrial would violate the prohibition against double jeopardy because there was no manifest necessity for the district court to declare a mistrial. denied the motion on September 29, 2005. The circuit court

This appeal followed.5

The Fifth Amendment to the United States Constitution and Section 13 of the Kentucky Constitution specifically provide that no person shall be tried twice for the same offense.6 However, the principle of double jeopardy does not prevent a retrial if the previous proceedings were terminated because "[t]he trial court, in exercise of its discretion, [found] that the termination [was] manifestly necessary."7 Manifest necessity

has been described as an "`urgent or real necessity'" [citation omitted].8 A finding of manifest necessity is left to the sound A grant of mistrial will only be

discretion of the trial court.9

5

On December 19, 2005, a panel of this Court granted Hupp's motion for immediate relief and stayed his retrial pending the outcome of this appeal.

6

Commonwealth v. Scott, 12 S.W.3d 682, 684 (Ky. 2000) (citing Tinsley v. Jackson, 771 S.W.2d 331 (Ky. 1989); and Leibson v. Taylor, 721 S.W.2d 690, 693 (Ky. 1987) (overruled on other grounds, Shaffer v. Morgan, 815 S.W.2d 402, 404 (Ky. 1991))).
7

KRS 505.030(4)(b); Grimes v. McAnulty, 957 S.W.2d 223, 224 (Ky. 1997); Nichols v. Commonwealth, 657 S.W.2d 932, 933 (Ky. 1983).

Miller v. Commonwealth, 925 S.W.2d 449, 453 (Ky. 1996) (overruled on other grounds, Garrett v. Commonwealth, 48 S.W.3d 6 (Ky. 2001)).
9

8

Grimes, 957 S.W.2d at 225.

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overturned if the ruling by the trial court was clearly erroneous or constituted an abuse of discretion.10 We conclude that the district court did not abuse its discretion in limiting the questioning of the victim regarding her sexual activity in the parking lot on October 1. A trial

judge has broad discretion in establishing the proper boundaries on cross-examination.11 While Kentucky Rules of Evidence section

611 permits a witness to be cross-examined on any matter relevant to any issue in the case, the trial judge is still allowed discretion to limit cross-examination. Such limitation

is permitted when necessary to further the search for truth, avoid waste of time, or protect witnesses against unfair and unnecessary attack.12 In general, the role of cross-examination is to permit the defendant an opportunity to impeach a particular witness as to credibility. A defendant cannot be denied the opportunity to

impeach a witness for bias, or from presenting facts from which the jury could draw inferences regarding the credibility of the

10

Tinsley, 771 S.W.2d at 332.

11

Commonwealth v. Maddox, 955 S.W.2d 718, 720-21 (Ky. 1997). See also Moore v. Commonwealth, 771 S.W.2d 34 (Ky. 1988) (overruled on other grounds, McGuire v. Commonwealth, 885 S.W.2d 931 (Ky. 1994)).
12

DeRossett v. Commonwealth, 867 S.W.2d 195, 1998 (Ky. 1993) (citing Lawson The Kentucky Evidence Law Handbook

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