TRACY KISENDA PETITIONER v. COMMONWEALTH OF KENTUCKY REAL PARTY IN INTEREST (2026)

OPINION AND ORDER DENYING PETITION FOR WRIT OF MANDAMUS AND PROHIBITION

Petitioner, Tracy Kisenda (“Kisenda”), by counsel, petitions for a writ of mandamus and prohibition to prevent retrial, following a mistrial, in Kenton Circuit Court Action No. 24-CR-01134 and to mandate an order dismissing the case with prejudice. Kisenda asserts that a retrial will violate his right to protection from double jeopardy.

I. BACKGROUND

On May 28, 2025, a jury tried Kisenda on charges of assault in the third-degree (police officer) and obstructing governmental operations. Kisenda had been involved in a traffic stop during which he was asked repeatedly to provide his license. Instead of complying with a lawful request, he refused to provide his identification, declined to roll his window down but a couple of inches, forcibly prevented officers from reaching into his vehicle, and swatted and grabbed at them while on a highway ramp with easy access to flee. Officers tried to remove him from the vehicle for safety and to prevent flight. Due to Kisenda's actions, they resorted to shattering his driver's side window and instructing him to exit the vehicle. He again refused, and officers tried to pull him out forcibly to arrest him. He resisted, grabbed an officer's arm, knocked off his body camera, and kicked him in the groin. Officers then deployed the taser on Kisenda – twice. He would not relent. Officers then used the drive stun, which allowed them to remove Kisenda from the vehicle and arrest him.

During the subsequent jury trial, the Commonwealth first called as witnesses the three officers who had been involved in the traffic stop and arrest. The first two officers introduced video recordings from body-worn and dashboard cameras. The third officer, Specialist Douglas Ullrich (“Ullrich”), had sustained the kick and testified about the fight with Kisenda.

At the beginning of its cross-examination, the defense commenced with a purported question, which was much more akin to a declaration or offer of proof, that led to the following exchange (hereafter referred to as “the Statement”):

Q: You have been a police officer with the Covington Police Department for 14 years, or is it 15 now?

A: I think it's 13 1/212.

Q: OK. So we'll round it up. We'll give you that extra 6 months that you don't need. So in that time, you have had 4 different civil lawsuits filed against you.

Video Record (“VR”) 05/28/25, 4:01:55 – 4:02:21 (emphasis added). Before Ullrich had an opportunity to respond, the Commonwealth immediately objected and asked to approach the bench for a conference. The Trial Court permitted the discussion but first removed the jury from the Courtroom. After a lengthy hearing outside the presence of the jury, the Trial Court declared a mistrial.

On August 1, 2025, Kisenda filed a motion to dismiss the case, alleging that a second trial would violate his protection against double jeopardy. The Trial Court denied the motion on November 24, 2025. Kisenda filed this petition on January 7, 2026.¹ The Commonwealth responded on February 11, 2026.²

II. ANALYSIS

Writs are extraordinary and, therefore, Courts scarcely grant them. Edwards v. Hickman, 237 S.W.3d 183, 189 (Ky. 2007). This Court is constrained to a strict standard on review and will only grant a petition for a writ when either of the following occurs:

(1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.

Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004).

Kisenda does not challenge the Kenton Circuit Court's jurisdiction. He instead seeks a writ of the second class, under which he must demonstrate that: (1) the Trial Court has acted erroneously; (2) there is no adequate remedy by appeal or otherwise; and (3) great injustice and irreparable injury will result if this Court does not grant the writ. Id.; see also Sneed v. Burress, 500 S.W.3d 791, 793 (Ky. 2016). Kisenda asserts that the Trial Court erroneously declared a mistrial and denied his motion to dismiss. He argues that subjecting him to a retrial will violate his constitutional protections against double jeopardy, thus causing him injustice and injury for which there is no adequate remedy by appeal. The Commonwealth responds that retrial is proper, and that the Trial Court exercised its wide discretion soundly.

In Kentucky, “[a]lthough the remedy of a writ remains discretionary with the reviewing court, there is not an adequate remedy by appeal where a defendant contends [successfully] that double jeopardy would bar a second trial following either an acquittal or conviction.” Dunn v. Maze, 485 S.W.3d 735, 742 (Ky. 2016). Furthermore, “[a] meritorious claim that double jeopardy bars retrial satisfies the requirement of great injustice and irreparable injury.” Id. But Kentucky law clearly does not mandate barring retrial and dismissal of criminal charges in every mistrial – especially those opposing a mistrial that they caused.

Our Supreme Court has held that “although double jeopardy is an appropriate subject for a writ of prohibition, it is not mandatory that it be addressed in that context.” Sneed, 500 S.W.3d at 793. In Sneed, the Supreme Court held that an Appellate Court, “rather than delay resolution,” “may, in its discretion, address the merits of the issue within the context of the petition for the writ, or may decline to do so on grounds that there is an adequate remedy by appeal.” Id. (quoting St. Clair v. Roark, 10 S.W.3d 482, 485 (Ky. 2007)). It is well-settled that we may assess directly the Trial Court's declaration of a mistrial and affirm the lower Court's judgment on any ground that is supported by the record. Wells v. Commonwealth, 512 S.W.3d 720 (Ky. 2017).

Importantly, appellate review of a Trial Court's declaration of a mistrial is narrower than the question the lower Court faces at trial, as Supreme Court Justice Hughes insightfully noted:

Actually, the manifest need for a mistrial is not exactly the question before us. That was the question that confronted the trial court ․ The precise question before this Court, however, is not whether defense counsel's [error] manifestly necessitated a mistrial, but rather whether the trial court abused its discretion in deciding that it did.

Sneed, 500 S.W.3d at 801 (Hughes, J., concurring) (citing Cardine v. Commonwealth, 283 S.W.3d 641 (Ky. 2009)). Thus, the Trial Court is afforded sound discretion in finding manifest necessity. Sneed, 500 S.W.3d at 793. This Court will only find an abuse of discretion when “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).

Where a defendant, as Kisenda in this case, did not specifically request or consent to the mistrial, it is appropriate only if there was “manifest necessity” to correct an error, and no other alternatives were feasible. Cardine, 283 S.W.3d at 647; see also Woodard v. Commonwealth, 147 S.W.3d 63, 68 (Ky. 2004). A finding of manifest necessity for a mistrial overcomes double jeopardy concerns and permits retrial. Cardine, 283 S.W.3d at 648.

Significantly, “[a]n additional factor weighing in favor of sustaining a mistrial is whether the defendant created the circumstances necessitating the mistrial.” Sneed, 500 S.W.3d at 795 (citing United States v. Gantley, 172 F.3d. 422, 430 (6th Cir. 1999)). Under such facts, an important function of our review is to avoid incentivizing defense counsel from provoking a mistrial with the intent to prevent the retrial of the case. Id. at 803 (Hughes, J., concurring) (quoting Arizona v. Washington, 434 U.S. 497, 513, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978) (“Unless unscrupulous defense counsel are to be allowed an unfair advantage, the trial judge must have the power to declare a mistrial in appropriate cases.”)). Therefore, it is appropriate for us to consider the fact that Kisenda's counsel unilaterally, deliberately, and without prior discussion or leave of Court, made the Statement that resulted in the mistrial.

Lest anyone forget, the very purpose of a mistrial is to protect both parties’ rights to a fair trial. Cardine, 283 S.W.3d at 648. As our Supreme Court has explained, a mistrial is:

an extreme remedy [that] should be resorted to only when there appears in the record a manifest necessity for such an action or an urgent or real necessity. The error 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.

Dunlap v. Commonwealth, 435 S.W.3d 537, 604 (Ky. 2013), abrogated on other grounds by Abbott, Inc. v. Guirguis, 626 S.W.3d 475 (Ky. 2021) (citations omitted). “[A] single improper question posed by defense counsel to a prosecution witness” may necessitate a mistrial. Sneed, 500 S.W.3d at 796 (citing Chapman v. Richardson, 740 S.W.2d 929 (Ky. 1987) and Stacy v. Manis, 709 S.W.2d 433, 434 (Ky. 1986)). Where “defense counsel's statements constituted improper evidence which prejudiced the Commonwealth's right to a fair trial, we cannot say that a mistrial was an inappropriate remedy here.” 500 S.W.3d at 795 (citing Grimes v. McAnulty, 957 S.W.2d 223, 224 (Ky. 1997)).

The Commonwealth's right to a fair trial is a specific and necessary consideration for this Court's examination of the propriety of a mistrial. Sneed, 500 S.W.3d at 793. “[O]ur system dictates that the Commonwealth has the same right to a fair trial as does a defendant.” Grimes, 957 S.W.2d at 229 (Johnstone, J., concurring). Moreover, it is important to keep in mind that the Commonwealth does not have the avenue of appeal to correct prejudicial errors when a trial results in an acquittal. And when defense counsel causes the mistrial by providing a jury with inadmissible evidence (and failing to bring the issue before the Trial Court before doing so), it cannot thereafter and offensively use the doctrine of double jeopardy to shield its malfeasance.

Here, the Trial Court found that the Commonwealth suffered prejudice when the defense attempted to question Ullrich by making a statement that several lawsuits existed relating to his past use of excessive force against other arrestees. The Trial Court precluded speculation regarding its reasoning when it explicitly declared, “for the record, I [find] manifest necessity and that's based on the Commonwealth's inability to appeal.” VR 05/28/24, 4:35:08-16. Further, as the Trial Court's later orders make clear, the events leading to the mistrial were entirely provoked by the course of action taken, and not taken, by defense counsel. The Trial Court explained in the order of November 24, 2025, that evidence of unresolved civil lawsuits is irrelevant and would only prejudice the jury toward Ullrich who, in addition to being a key witness, was also the victim of Kisenda's alleged crimes.

Unquestionably, the Trial Court did not directly address the issue of double jeopardy orally before granting the motion for a mistrial and dismissing the jury. However, that Court did weigh the effectiveness of a curative admonition to the jury and made some consideration of the potential appropriateness of the Statement under the Kentucky Rules of Evidence (“KRE”). The Trial Court also observed that defense counsel had the opportunity to avoid this series of events entirely by properly filing notice under KRE 404(c) to request permission to use the civil suits as extrinsic evidence to attack the witness's credibility. We recognize that KRE 404(c) is inapplicable here because, by its clear language, it applies only to the Commonwealth and not to the defense's cross-examination. Bratcher v. Commonwealth, 151 S.W.3d 332, 351-52 (Ky. 2004). However, KRE 608(b) explicitly provides that “[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of a crime as provided in [KRE] 609, may not be proved by extrinsic evidence.”

In his petition, Kisenda claims that his counsel's statement – that unquestionably assumed facts not in evidence – was permissible “to highlight why [Ulrich] may lie on the stand,” but concedes that “those specific lawsuits are not admissible as evidence to prove the truth of the subject to those civil lawsuits.” Petition at 15-16. This claim improperly interprets our rules of evidence. Specifically, “KRE 608(b) does not give parties a ‘right’ to cross-examine on specific acts found to be probative of truthfulness/untruthfulness․ Rather, introduction of specific acts evidence on cross-examination is at ‘the discretion of the [trial] court.’ ” Sneed, 500 S.W.3d at 794 (citing KRE 608(b) and Robert G. Lawson, The Kentucky Evidence Law Handbook § 4.25[4][e], at 320 (5th ed., 2013)).

Moreover, the Trial Court correctly found that the Statement was impermissible character evidence under KRE 404(b). The Trial Court revisited these issues in its written order denying the motion to dismiss, noting that the Commonwealth had no recourse to cure the Trial Court's very own and strong visible physical response to the improper Statement. The jurors would likely not be able to disregard the resulting assumption that the still-in-progress lawsuits were damaging to the officer's character or credibility. While the defense claimed that the existence of the lawsuits would reflect upon Ullrich's credibility, the Trial Court pointed out that all of the lawsuits were still pending, and none of them accused Ullrich of conduct involving untruthfulness. The only purpose could be to introduce inadmissible evidence regarding reasonableness of Ullrich's conduct with regard to other people not on trial – which was not at issue – and to show that Kisenda's conduct would then somehow be justified in this case without even showing that Kisenda was aware of the officer's alleged but not-proven, prior conduct. The victim/officer was not on trial here, and the yet-untested allegations of his prior conduct with others were neither admissible nor relevant and yet highly inflammatory – the fact of which defense counsel was undoubtedly aware (or reasonably should have been as a member of the bar entrusted with knowing the law).

The reasonableness of an officer's conduct is irrelevant to a finding of a defendant's criminal culpability. Welsh v. Commonwealth, 641 S.W.3d 132, 139 (Ky. 2022). “Reasonableness of [an officer's] conduct is at best an evidentiary matter which can have relevance only to the extent that it tends to prove or disprove an element of the crime or a recognized defense.” California v. Schmies, Cal. Rptr. 2d 185, 193-94 (1996). The defense never actually identified the manner by which the subject of the lawsuits with other people for different conduct supposedly had bearing upon the officer's credibility, Kisenda's criminal culpability, or the elements of either the assault or obstruction charge.

Furthermore, as the Trial Court noted, the jury had already been shown videos of Ullrich's conduct during the arrest. They could form their own opinions regarding the reasonableness of his behavior. But the jury's ultimate responsibility was to assess Kisenda's conduct.

In his petition, Kisenda claims that the Statement was for the purpose of establishing a motive for Ullrich to lie. However, Ullrich's testimony during direct examination was about his qualifications and professional experience, followed by a description of the events leading up to and including the arrest. Most of Ullrich's testimony was repetitive of the testimony of other officers and, as noted, was already reflected in body-worn camera recordings. Kisenda has still not set forth any specific allegations of fabricated testimony, and Kisenda's counsel refused to provide the Trial Court with any insight into his defense when asked.

Even if Ulrich's credibility was somehow relevant to Kisenda's defense, “[d]etermining witness credibility ‘is within the exclusive province of the jury.’ ” Sneed, 500 S.W.3d at 795 (quoting Moss v. Commonwealth, 949 S.W.2d 579, 583 (Ky. 1997)). The lawsuits that were the subject of the Statement had no connection to Ullrich's character for truthfulness. See, e.g., Welsh, 641 S.W.3d 132 (affirming Trial Court's decision declining admission of character evidence that law enforcement officer had history of reprimands for excessive force). Therefore, the Trial Court did not abuse its discretion in deeming that the Statement was inadmissible character evidence under KRE 404(b) and not probative of the officer's credibility.

Next, in determining whether manifest necessity existed for a mistrial, we must examine the jury's reaction to the statements that were actually uttered and presented to them. The review must be from the jury's perspective and not that of the Trial Court, as the Court will often have far more information and context than the jury. Commonwealth v. Padgett, 563 S.W.3d 639, 647 (Ky. 2018).

Here, the Trial Court immediately and visibly reacted with shock and dismay to the Statement and right in front of the jury, as it noted on the record. The Trial Court took the further and contemporaneous action of immediately removing the jury from the Courtroom after the objection, leaving the unmistakable impression upon the jury that the Statement was something that they should not have heard and that posed a problem. The jurors then waited outside for a lengthy period of time while the Trial Court proceeded with the parties and lawyers, but without them. They thus had a long time to weigh the Statement – the last “evidence” that they heard – on their own and give it weight.

Moreover, from the Trial Court's verbal response on the record, it is clear that it believed that the jury could not be restored to impartiality following the Statement, no matter what instructions or admonitions were given in an attempt to cure the error. The proverbial bell could not be unrung. Both the Commonwealth and the Trial Court had immediate and extreme reactions, which the jury had plainly been able to see. We do not take the jurors for fools. Even without knowledge of evidentiary rules or the existence of the lawsuits, it would be obvious to any reasonable person that a serious, secretive, scandalous subject had been displayed. And that sudden unveiling would not be coverable again, and certainly not with the treatment it was given. An admonition for the jury to ignore the Statement that caused visible consternation and an immediate cessation of the trial would not have sufficiently removed the Statement from the jurors’ minds. Indeed, it likely would have made the Statement even more memorable. Accordingly, the Trial Court did not abuse its discretion in deciding that defense counsel's unannounced decision to make an inadmissible and prejudicial Statement to the jury, as well as the resulting reactions caused by it, manifestly necessitated a mistrial.

Finally, we address Kisenda's claim that the Trial Court used a mistrial as a sanction. Although the Trial Court considered the questions of sanction and mistrial somewhat contemporaneously, we are not mandated to do so. Indeed, our Supreme Court has expressly held that a mistrial should not be used as a sanction because it would remove the defendant's ability to challenge a mistrial granted without establishing manifest necessity. Padgett, 563 S.W.3d at 646. We will not conflate the question of sanction with that of whether a mistrial was a necessary and appropriate response to defense counsel's improper Statement. In cases where a Trial Court confronts potential jury bias, our Supreme Court has recognized that an admonition to the jury or even discipline of counsel “will not necessarily remove the risk of bias that may be created by improper argument.” Sneed, 500 S.W.3d at 802-03 (Hughes, J., concurring) (quoting Washington, 434 U.S. at 511-13, 98 S. Ct. 824). Expounding that point further:

The interest in orderly, impartial procedure would be impaired if [the trial judge] were deterred from exercising that power by a concern that any time a reviewing court disagreed with his assessment of the trial situation a retrial would automatically be barred. The adoption of a stringent standard of appellate review in this area, therefore, would seriously impede the trial judge in the proper performance of his duty, in order to protect the integrity of the trial, to take prompt and affirmative action to stop ․ professional misconduct.

Id. (internal quotation marks and citation omitted). Moreover, we believe that the Trial Court, during its lengthy oral discussion of the entire situation, and its orders, clearly granted a mistrial due to manifest necessity and prejudice to the Commonwealth. While it noted the obviously improper defense conduct, as it should have, it did not grant the mistrial as a sanction for it. And while it would have been well within its purview, it did not even sanction defense counsel with reporting her to the bar association.

III. CONCLUSION

Defense counsel's Statement was improper, inadmissible, and prejudicial under the KRE. The Statement's impact tainted the jury and violated the Commonwealth's right to a fair trial, leaving the Commonwealth without the remedy of appeal in the case of an acquittal. A mistrial was manifestly necessary and the only remedy available for the Commonwealth to preserve its right to a fair trial.

Having reviewed the limited record, finding that the Kenton Circuit Court did not abuse its discretion in declaring a mistrial, and being otherwise sufficiently advised, this Court ORDERS that the petition for a writ of mandamus and prohibition be, and is hereby, DENIED.

I respectfully dissent and would grant the petition for a writ of mandamus and prohibition.

FOOTNOTES

1.   Retrial is currently scheduled for June 24, 2026. Proceedings in the Kenton Circuit Court have been temporarily stayed pending this Court's ruling on this petition pursuant to this Court's order issued on February 5, 2026.

2.   Pursuant to Kentucky Rules of Appellate Procedure (“RAP”) 60(D), Respondent has elected not to file a response. RAP 60(D) (“The party against whom relief is sought ․ may ․ file a response[.]”).

HON. AUDRA J. ECKERLE JUDGE, COURT OF APPEALS

ACREE, JUDGE, CONCURS. COMBS, JUDGE, DISSENTS AND FILES SEPARATE OPINION.