IMPORTANT NOTICE ·NOT TO BE PUBLISHED OPINION THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, _ UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS TUE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.

RENDERED:. JUNE 14, 2018 NOT TO BE PUBLISHED

2017-SC-000271-MR [Q)~U~7f'/!P ~.~ rz..rMO~.rx:..

JOSHUA RATLIFF APPELLANT

ON APPEAL FROM HARDIN CIRCUIT COURT v. HONORABLE KEN HOWARD, JUDGE NO. 16-CR-00182

COMMONWEALTH OF K~NTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT AFFiRMING '··

Appellant, Joshua Ratliff, appeals from a judgment of the Hardin Circuit Court based upon jury verdicts finding him guilty but mentally ill on charges of murder, first-degree ·fleeing arid evading, and two counts of first-degree wanton endangerment. He was sentenced to fifty-five years in prison.' On appeal, he contends that the trial court erred (1) by denying his motion to be declared incompetent to stand tri~, and (2) by failing to declare a mistrial when a witness for the Commonwealth mentioned Appellant was being investigated for downloading child pornography. For reasons stated below, we affirm the Hardin Circuit Court's judgment.

I. · FACTUAL AND PROCEDURAL BACKGROUND . Appellant was_ born in 1988 and, as _reflected in the yoluminous medical . records contained in the record; he has been diagnosed as suffering from various psychologicai°disorders throughout his life. In the summer of 20l5, Appellant began working at a restaurant in Elizabethtown. Among his.· . . coworkers were Ryan Birse, De.andre Gaines, arid restaurant m~nager Tiffany . Alfaro. Appellant did not get along with Birse and had asked.not to be scheduled to.work with him·. While working alongside App~llant, Birse and Gaines had complained ·to Alfaro that, in violation of compa:r:iy policy and applicable public health regulations, Appellant would wash dishes .and ·then, without first washing his .hands, help prepare food; On February 25, 2016, {\.ppellarit ~ent to the restaura~t during his off.: work tirrie and entered a food preparation area that was restricted to on·-duty employees. Alfaro told Appellartt.he had to leave, but instead of doing so, · Appel1ant'turned. toward,Birse and shot him several times.. Gaines assisted . · other employees in fleeing the re~taurant. Appellant follpwed him outside, pointed the gun at him, and pulled the trigger .. The gun failed to fire, ' apparently because Appellant had exhausted hfS ammunition shooting at Birse. Appellant fled but was soon captured after a high-speed chase'. Birse died ·on t];J.e scene.

After his indictment, Appellant filed a motion asserting that he was· . . incompetent to stand ·trial. The trial court ordered an evaluation of his competency by the Kentucky Correctional Psychiatric.Center.(KCPC). After the

evaluation, officials at KCPC diagnosed Appellant as having bipolar disorder, _type I, for which they prescribed medication. After an evide.ntiary hearing, the trial court found that with proper mediCation, Appellant was competent to stand trial.

Later, Appellant stopped taking his medications and his mental -condition deteriorated. Upon motion of his counsel, the cu~rt ordered that Appellant be re-committed to KCPC, with directions for KCPC to administer his medications by force, if necessary. Following this second commitment, Appellant was diagnosed with schizoaffective disorder, but he responded well to further medication. Upon review, the trial court once again found Appellant was competent to stand trial.

At trial, Appellant presented an insanity defense. He was found guilty but mentally ill on all counts and sentenced to a total of fifty-five years in prison. This appeal followed.

II. COMPETENCY TO STAND TRIAL "A criminal defendant may not be tried or co:p.victed while !egally incompetent .... " Gilbert v. Commonwealth, 575 S.W.2d 455, 456 (Ky. 1978).

A person is legally incompetent if "he lacks the capacity to understa_nd the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense." Drope v. Missouri, 420 U.S. 162, 171 \

(1975).

The United States Supreme Court held· in Godinez v. Moran, 509· U.S. 389, 396 (1993)~ that a defendant is competent to stand trial if he can "consult with his lawyer with a.reasonable degree of rational understanding'' and has "a rational, as well as, factual° understanding .of the proceedings _against him_." Godinez, 509 U.S. at 397-98, further explains that a competent defendant is_ one who ca11: make a "reasoned choice" among t?-e alternatives available to him when confronte~ with such crucial questions as whether he should testify, waive· his right to a jury trial, cross-examine- witnesses, or put on a defense.

Bishop . v. Caudill, 118 S:W~3d 159, 163 (Ky. 2003). "Evidence . of a defendant's irrational behavior, his demeanor in court, and any prior medical opl.nion on competence to stand trial are all -relevant ~acts for a court to consider" in reaching its decision. Mills v .. Commonwealth, 996 S'.W.2d 473, 486 (Ky. 1999). (citing Drope, 420 U.S. at 180). "Incompetency to stand trial" is defined by KRS 504.060(4) to be the "lack of capacit:j to appreciate the riature ·and consequences of the proceedings against one or to participate rationally in . one's owri defense" due to "a mental condition;". . .

The defendant bears the ultimate burden at a competency hearing of proving that he is incompetent to stand trial. Jacobs v. Commonwealth, 58 · S.W.3d 435, 440 (Ky. 2001) (citing Gabbard v. Commonwealth, 887 S.W.2d . . . . 547, 551 (Ky. 1994)). "A compe~ency determination is based on the preponderance of the evidence standard. We may. disturb a trial court's competency determination only if the· trial court's decision is dearly erroneous . (i.e., not-supported by sµbstantial evidence)." Chapman v. Commonwealth, 265 S.W:3d 156, 174 (Ky.- 2007) .. (citations omitted); . see United States . v. Branham,

97 F.3d 835, 855 (6th Cir: 1996) (competepcy determinations are findings of fact)_.

In conjunction with his motions to be declared incompetent to stand trial, Appellant was twice sent to KCPC for a competency evaluation. Two. evidentiary hearings were held; and extensive testimony was presented· by Dr. Timothy Allen of KCPC; Appellant's parents; Appellant's· forensic psychiatrist, Dr. Douglas Ruth; and a nurse from the Hardin County Detention Center, Lisa Puckett.· At the conciusion of ~ach hearing, the trial court found Appellant to be competent to stand trial. Announcing its decision from the bench after the second hearing, the trfal court emphasized that it was basing its finding of con;ipetency . .Principally . ~ . upon Dr. Allen's report that Appellant was competent to staqd trial: l give weight to br. Allen's testimony bec~use, as he's indicated, KCPC and Dr. Alleri are in a un1.que advantageous position as it relates to Joshua Ratliff in this particular case because he's now been continuously at KCPC for almost seventy.,. five days and has that opportunity to observe, and evaluate, and treat and discern changes in behavior .and response to treatment by not only Dr. Allen but·the rest of the medical. staff at KCPC where he is ob~erved twenty-four seven .

. The trial court further explained its decision by noting that the evidence established that Appellant was highly functionaiwhen properly medicated, and that he became delusional only when he was not being medicated. The trial co~rt noted that Appellant's forensic psychologist .agreed with that assessment . . The trial court further noted that Dr. Allen's testimony confirmed Appellant's comprehension of his legal circumstances. Dr. Allen had t~lked to· Appellant . J. . . .. · about the case and observed that Appellant rationally discussed the relevant legal issues and demonstrated an adequate knowledge of the roles of the attorneys, the judge, the jury, and of the facts of the case, including Appellant's belief that he had a good attorney.

In opposition to the trial court's ruling, Appellant contends that inadequate consideration was given to his life-long mental, emoti9nal, and psychological problems, including depression, nervousness, anxiety, hallucinations about being injected with the HIV virus, paranoia about his medications, diminished hygiene and disrupted sleep patterns caused by ' mental illness, and paranoid delusions abmit the FBI and other government agencies he believed were out to get him. Appellant also contends that his hallucinations persist whether he is medicated or unmedicated.

Upon review of the trial court's competency determination for clear error, we note that the trial court determined twice after extensive evidentiary hearings that Appellant was competent to stand trial. The trial court had ample opportunity to observe Appellant throughout the two hearings and was not persuaded by his claim of incompetence. See Mozee v. Commonwealth, 769 ·s.W.2d 757 (Ky. 1989) (observations of a defendant during two competency hearings indicated that the defendant was able to cooperate with attorneys)..

Appellant's emphasis on his undisputed long-standing mental difficulties, supported by voluminous medical records presented into evidence, was powerful but not so persuasive as to compel a finding of incompetence. The contrary findings of the trial court, largely reliant upon Dr. Allen's opinions, are

W<dl supported by substantial evidence .and are not clearly erroneous.

Accordingly, we affirm the trial court's holding on this issue.

III. FAILURE TO DECLARE A MISTRIAL A few months before Appellant shot and killed Ryan Birse, state police officers detected that child pornography had been downloaded onto a computer belonging to Appellant. As a result, they executed a search warrant and seized . . all electronic devices from Appellant's mother's residence.

In a pretrial motion, Appellant moved the trial court to prohibit any evidence or other statements at trial referencing any criminal conduct Appellant "may be suspected of for which he has not be~n charged, and/ or of any other criminal activity other than charges that were brought in the Indictment of this case." Appellant's objective was to'prevent the trial from being tainted by information relating to the child pornography issue.

The trial court denied Appellant's motion on the grounds that his psychiatric records were replete with references to child pornography, including several references within three months of the shooting. The trial court reasoned that if the trial experts on Appellant's psychiatric defense used this information in their diagnoses and in their written reports, KRE 703 and KRE would allow its introduction during their testimony by way of explaining or challenging diagnoses.

However, the trial court further ordered the Commonwealth "not to reference child pornography in its opening statement ... in its case-in-chief [or] until obtaining the court's approval." The trial court also ordered the . . · parties to.refer to the evidence only as "illegal pornographic images" or "illegal pornography downloads," rather than "child po.rnography." Additionally, the · court directed that ff a witness referred. to the images, a limiting instruction . would be giv~ri to admonish. the jury to consider the pornography investigation . only for the purpose of understanding the expert witness's observations or report and not to consider the investigation for.purposes relating .to Appellcmt's · character.

.Nevertheless,. during . the Commonwealth's . case-in·-chief; .. the detective in charge of the investigation, Sergeant Kelly Slone, testified about her interview of Appellant soon after the ~hooting. A video of the interview was played for the. jury. During the interview, Appellant asked Slone for a psychiatrist. On. cross- examination, Slone testified· that Appellant's request for a psychiatrist was "odd," and that she believed Appellant's purpose for t]J.e request. was to begin . laying the foundation for an insanity defense. Appellant's counsel then asked, "What does he hope to gain by doing-thatr ·In response; Slone an:swered: "He had been u~der investigation for downloading child pornography, and I think that .... " Defense counsel cut-off Slone's answer with an objection and moved for a mistrial based upon the reference to Appellant having downloaded child pornography .

. The triarcourt dismissed the jury from the cm~rtroom and, dur~ng the subsequent discussion, asked Slone.to complete the ariswer that w~s interrupted.· Slone c~ntinued that it was her theory that Appellant shot Birse

because he was paranoid about the child pornography investigation and was in fear of going to prison as a sex offender . \ and pedophile.

After hearing arguments, the trial court denied Appellant's motion for a mistrial. The trial court concluded that defense counsel had asked an "open- ended question," and that Slone's answer was responsive to the question she was asked. The court accordingly declined to declare a mistrial. Upon recalling the jury to the courtroom, the judge admonished the venire to disregard the last question and answer. The judge directed the jury to draw no inferences from the answer and to hold the court's ruling aga,inst neither the Commonwealth nor Appellant.

Of course, "[o]ne who asks questions which call for an answer has waived any objection to the answer ifit is responsive." Estep v. Commonwealth, 663 S.W.2d 213, 216 (Ky. 1983) (citing 1 Wigmore, Evidence, Sec. 18 p. 344 (3rd ed. 1940); West v. Commonwealth, 117 S.W.2d 998 (Ky. 1938)). It is a close call, but Slone's answer to defense counsel's question was fairly regarded as responsive. Moreover, the trial court admonished the jury to disregard Slone's damaging testimony, and a jury is presumed to follow an admonition to disregard evidence. Johnson v~ Commonwealth, 105 S.W.3d 430, 441 (Ky. . . ' 2003).

We recognize two exceptions to the presumptively curative effect of a trial judge's admonition: (1) when there is an overwhelID;ing 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 I .

defendant, Alexander v. Commonwealth, 862 S.W.2d 856, 859 (Ky. 1993), 1 and (2) when the question was asked without a factual basis and was "inflammatory" or "highly prejudicial,'' Derossett v. Commonwealth, 867 S.W.2d · 195, 198 (Ky. 1993); Bowler v. Commonwealth~ 558 S.W.2d 169, 171 (Ky. 1977). The second exception is not applicable here because the prejudicial . comment di_d not arise from a questfon asked without a factual ha.sis. As to the first exception, we see no overwhelming probability that the jury was unable-.to follow the admonition, and :under the circumstances, the information was not devastating to Appellant's insanity defense.

"A mistrial is an extreme remedy and should be resorted to only when there appears in the record a manifest necessity for such an action or an urgent or real necessity." Bray v. Commonwealth, 68 S.W.3d 375, 383 (Ky. 2002) (internal quotation and citation omitted). We review a trial court:s denial of a mistrial for abuse of discretion. Slone v. Commonwealth, . . 382 S.W.3d 851, 858 (Ky. 2012) (citation omitted). We see no abuse of discretion inth~ trial court's d~cision to address the problem by issuing a limiting admonition rather· than declaring a mistrial.

·IV. CONCLUSION For the foregoing reasons, the judgment of the Hardin Circuit Court is affirmed.

All sitting. All concur.

1 Overruled on other grounds by Stringer v. Commonwealth, 956 S.W.2d 883 ·(Ky. 1997).

.COUNSEL FOR APPELLANT:.

Julia Karol Pearson Assistant Public Advocate

COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky Emily Lucas Attorney General's Office Office of Criminal Appeals