CRIMINAL LAW – No prosecutorial error in argument; no mistrial for mention of refusal to be interviewed, no palpable error re victim testimony of years of rape: Earl Vincent. Jr. v. Commonwealth (SC 4/23/2009)

Earl Vincent. Jr. v. Commonwealth      
2007-SC-000413-MR April 23, 2009      
Opinion by Chief Justice Minton. All sitting; Justice Schroder  concurs in result only.

Vincent was indicted on 294 counts of sexual offenses spanning four decades and involving multiple family members. At the close of the Commonwealth’s case, the prosecutor amended the indictment to 29 counts. Vincent was convicted on all 29 counts and was sentenced to 50 years imprisonment. On appeal, Vincent argued that he was entitled to relief under RCr 10.26 because the prosecutor stated in opening remarks that “300 counts were not enough.” The Court rejected Vincent’s argument that the statement was an improper expression of the prosecutor’s personal opinion of Vincent’s guilt and an insinuation to the jury that the prosecutor knew of facts that could not be presented. The Court held that any error was not palpable, and further ruled that it was not prosecutorial misconduct under the facts and circumstances of this case for the prosecutor to seek a nearly 300 count indictment when only a fraction went to the jury. The Court noted that because of the lapse of time, there was difficulty in proving that some of the offenses had occurred in Edmonson County.    

Vincent also argue d that the trial court should have granted a mistrial after a police officer mentioned Vincent’s refusal to be interviewed. The Supreme Court held that the trial court did not abuse its discretion in refusing to grant a mistrial, noting that the prosecution did not elicit the information from the officer and that the trial court had offered an admonition which would have cured any error. Lastly, the Court held that there was no palpable error for investigative hearsay by an officer who testified that the victims told him they had suffered “years of rape, sodomy and incest,” where the victims subsequently took the stand and gave graphic, detailed testimony.

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