Opinion
NO. 2014-CA-001523-MR
03-04-2016
DANIEL LEE MOSS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Erin Hoffman Yang Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Jason B. Moore Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM SIMPSON CIRCUIT COURT
HONORABLE JANET J. CROCKER, JUDGE
ACTION NO. 13-CR-00049 OPINION
VACATING IN PART, AFFIRMING IN PART AND REMANDING BEFORE: CLAYTON, MAZE, AND THOMPSON, JUDGES. CLAYTON, JUDGE: Daniel Lee Moss, Appellant, brings this appeal of his conviction in Simpson County Circuit Court of Manslaughter in the Second Degree and Tampering with Physical Evidence. He asserts that the trial court erred in the following ways: the introduction of his adoptive admission by silence; the Commonwealth's reference to Moss's pre-arrest silence; the exclusion of the victim's urinalysis; allowing the probation and parole officer to provide inaccurate testimony as to his parole eligibility; and, statements by the Commonwealth in the penalty phase closing arguments which mischaracterized the evidence and referred to the "time and trouble" necessary for trial. We affirm Moss's Manslaughter in the Second Degree (hereinafter "manslaughter") conviction. We vacate Moss's sentence for Tampering with Physical Evidence and remand for a new penalty phase as to that conviction.
Relevant Facts
Moss was indicted by a Simpson County grand jury on April 8, 2013. He was charged with one count each of Murder and Tampering with Physical Evidence (hereinafter "tampering"), resulting from the death of Shawn Thompson on January 25, 2013.
At trial, Sara Sanders testified that her friend, Christina Layle, picked her up from a recovery home in Bowling Green, Kentucky on January 24, 2013, to visit. Sanders and Layle returned to Layle's house where she lived with the Appellant. At some point, Moss, Layle and Sanders began drinking beer and Jägermeister. Sanders testified that Moss and Layle argued throughout the evening. Eventually, Sanders fell asleep on the couch.
Layle woke Sanders up and told her that Shawn Thompson was coming to the house to visit. Thompson was eventually dropped off at the house that night. Sanders and Thompson were sitting in the living room when Sanders saw Moss with his hands around Layle's neck. When Sanders attempted to intervene, Moss pushed her back, and she fell down. When she looked up, she testified that Moss and Thompson were "locked up" fighting each other.
Thompson told Sanders to get her shoes on to leave, and after that Moss began to scream for everyone to leave. Then, Sanders saw Moss come from the kitchen with a gun, and while she was tying her shoe she heard a gunshot. When she walked to the front door, she saw that Thompson was still breathing. He died soon afterwards. She then sat down by Thompson and put his head in her lap. As she was sitting there, Moss placed a samurai sword in Thompson's hand. Sanders testified that she knocked the sword out of his hand.
Moss's version of events differed. He testified that after Thompson arrived, he told him and Sanders to leave, but that Thompson attacked him. Moss then grabbed a rifle from his utility room. Moss testified that Thompson retrieved the samurai sword from Moss's front porch and approached him with it. Moss testified that he then shot Sanders in self-defense.
When the police arrived, they found the body of Thompson on the front steps of the residence with a bullet wound in his back. A shell casing was located inside the house. The officers brought Moss, Layle and Sanders inside the residence, where Sanders stated with a raised voice that Moss had "shot [Thompson] in the back for no reason." That night Moss told his version of events to Detective Eddie Lawson.
According to autopsy reports, Thompson had methamphetamine, alcohol, and several other medications present in his system. Moss also had his blood and urine screened for drugs and alcohol. His blood alcohol content was .01762 grams. The jury convicted Moss of manslaughter and tampering. The jury recommended that Moss serve ten years on the manslaughter conviction and five years on the tampering conviction, to run consecutively for a total of fifteen years. This appeal follows.
Analysis
On appeal, Moss argues: 1) the trial court erred when it allowed the introduction of an adoptive admission by silence made by Moss; 2) the trial court palpably erred when it allowed the Commonwealth to reference Moss's pre-arrest silence, in violation of the Fifth Amendment; 3) the trial court erred when it allowed the exclusion of the victim's urinalysis; 4) the trial court palpably erred when it allowed the probation and parole officer to provide inaccurate testimony as to Moss's parole eligibility; and, 5) the trial court palpably erred when it allowed the Commonwealth to make statements in the penalty phase closing arguments which mischaracterized the evidence and referred to the "time and trouble" necessary for trial. After due consideration of the applicable law, we vacate Moss's sentence for his tampering conviction and remand for a new sentencing phase. We affirm Moss's manslaughter conviction.
I. Adoptive Admissions
Kentucky Rules of Evidence (KRE) 801A(b)(2) provides, in pertinent part:
(b) Admissions of parties. A statement is not excluded by the hearsay rule, even though the declarant is available as a witness, if the statement is offered against a party and is:
...
(2) A statement of which the party has manifested an adoption or belief in its truth[.]
Our Supreme Court has stated that "[w]hen incriminating statements are made in the presence of an accused under circumstances that would normally call for his denial of the statements, and it is clear that the accused understood the statements, yet did not contradict them, the statements are admissible as tacit, or adoptive admissions." Marshall v. Commonwealth, 60 S.W.3d 513, 521 (Ky. 2001).
Moss first alleges that Sanders's statement that Moss "shot [Thompson] in the back for no reason" could not constitute an adoptive admission because Moss never testified that he heard and understood the statement. Moss is correct that an accusatory statement must be made in the defendant's presence in order for his or her silence to constitute an adoptive admission. In Trigg v. Commonwealth, 460 S.W.3d 322 (Ky. 2015), the Kentucky Supreme Court concluded that the adoptive admission should have been excluded on the basis that no accusatory statement was made to the defendant, noting that "[w]ithout the accusatory or incriminating statements, there is nothing that one's silence may be said to have impliedly ratified and adopted as his own." Id. at 332 (citation and internal quotation removed). Similarly, in Terry v. Commonwealth, 153 S.W.3d 794 (Ky. 2005), our Supreme Court held that an adoptive admission should not have been admitted when "[the witness] was not present in the room with [the defendant] when [the declarant] made the statement and did not discover that [the defendant] was still in the residence until after the statement was made." Id. at 799. Therefore, "[the witness] could not and did not testify that [the defendant] agreed or disagreed with the statement, or that he heard it and did not deny it." Id.
Our Supreme Court reached the same conclusion in Blair v. Commonwealth, 144 S.W.3d 801 (Ky. 2004). The court noted that "[the witness] could neither see nor hear [the defendant] when these statements were made[]" in order to determine whether the defendant heard and understood the statements. Id. at 806. In Dant v. Commonwealth, 258 S.W.3d 12 (Ky. 2008), the court held that a nonresponsive answer to an accusatory statement can constitute an adoptive admission, as even a nonresponsive answer would demonstrate an understanding on the part of the defendant:
Goatee testified that in response to April's allegation, Dant replied that he was tired of working forty hours a week to support a child that was not his. If Dant had remained silent after April's accusation, it would have been clearer that he was acquiescing in the truth of her statement. However, Dant's reply nonetheless indicated that he understood April's accusation and chose not to deny it even though it was made under circumstances that would normally call for his denial. Thus, because Dant could have corrected April's statement but chose not to contradict her accusation, we find that the trial court did not abuse its discretion when it admitted April's statement as an adoptive admission.Id. at 18 (citation and internal quotations omitted).
Unlike in Trigg, Terry and Blair, an accusatory statement was actually made in Moss's presence. Even though Moss never affirmatively testified that he "heard and understood" the statement, there was extensive testimony elicited from witnesses establishing that the statement was made loudly within the defendant's close proximity. No Kentucky authority exists that a defendant must testify directly that he understood the accusatory statement was made in his presence, if the circumstances otherwise indicate that he did, and we do not hold so today.
Moss also claims that his statements could not constitute an adoptive admission because his statement was made under "conditions that ... deprived the party of freedom to act or speak with reference to it." Trigg v. Commonwealth, 460 S.W.3d 322, 331 (Ky. 2015) (quoting Commonwealth v. Buford, 197 S.W.3d 66, 74 (Ky. 2006)). In Cessna v. Commonwealth, 465 S.W.2d 283 (Ky. 1971), the Court concluded that a criminal defendant's statements should have been excluded in the following circumstances:
In the instant case, at the time the incriminating statements were made by appellant's wife, the appellant was under arrest and had been given the Miranda warnings. He had the right after that time to remain silent and answer no questions. He had no duty to respond to incriminating accusations made by any police officer or by his wife. The fact that the accused was under arrest and had benefit of the Miranda warnings was sufficient to render inadmissible the accusatory statements made in his presence even though he chose to remain mute. He, whether guilty or innocent, had the right under these circumstances to believe that silence while under arrest was conducive to his welfare.
It was error for the trial court under the circumstances in this case to admit the statements made by appellant's wife and read by the police officer to the jury.Id. at 285.
By contrast, our Supreme Court has held that no Fifth Amendment violation occurred when the trial court permitted the introduction of an adoptive admission by a defendant made to a private citizen, Waldrop, even though the defendant was in custody at the time. "Waldrop was a friend and colleague who decided to try to speak with Appellee, at least in part, as a consequence of their relationship. Although Waldrop ultimately testified on behalf of the Commonwealth during both the trial and the grand jury proceedings, there is nothing suggesting he acted on behalf of or in cooperation with the government on the day he confronted Appellee." Buford, 197 S.W.3d at 73. The circumstances in the present case are analogous to Buford. In the present case, there was simply no indication that Sanders was acting on behalf of the government when she made the accusatory statement.
Though police officers were present at the scene, they did not influence Sanders in any way to speak. Moreover, we cannot say that these circumstances "deprived [Moss] of freedom to act or speak with reference to it[,]" Trigg, 460 S.W.3d at 331, as Moss actually did tell the police a limited version of the events that day. Moss also argues that he was prejudiced by the Commonwealth's repeated characterization of Sanders's statement as an adoptive admission. Because we hold that Sanders's statement did in fact constitute an adoptive admission, this argument is without merit. No error occurred.
II. Pre-arrest Silence
Moss concedes that this argument is unpreserved. An unpreserved error requires reversal only "if a manifest injustice has resulted from the error," which means there "is [a] probability of a different result or [the] error [is] so fundamental as to threaten a defendant's entitlement to due process of law." Cardine v. Commonwealth, 283 S.W.3d 641, 651 (Ky. 2009) (quoting Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006)). In Gordon v. Commonwealth, 214 S.W.3d 921 (Ky. App. 2006), this Court held that a defendant's pre-arrest silence may be used to impeach his testimony on cross-examination. Id. at 925-26.
Moss claims Baumia v. Commonwealth, 402 S.W.3d 530, 536 (Ky. 2013) held that the Commonwealth may not make reference to a criminal defendant's pre-arrest silence in its case-in-chief. However, our Supreme Court later clarified its ruling as follows:
Baumia involves a pre-arrest and pre-Miranda warning situation but unlike the instant case, the defendant in Baumia did not remain silent. She very audibly and colorfully announced her refusal to speak to police. It was that vocal invocation of her right to remain silent, and not her silence, that we held could not be used as evidence of her guilt.Trigg, 460 S.W.3d at 329. As the Commonwealth states in its brief, Moss never asserted his right to remain silent in the present case and so Baumia is inapplicable. Instead, Moss voluntarily spoke to the police until he decided that he no longer wished to talk to them. At trial, the Commonwealth then made several references to the fact that Moss did not provide a complete version of the events that day. Because our Supreme Court has limited its holding in Baumia, but has never affirmatively ruled whether a defendant's pre-arrest silence may be used against him or her as substantive evidence of guilt, we are without binding state authority.
As noted by our Supreme Court, for Miranda purposes:
"custody" is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion. In determining whether a person is in custody in this sense, the initial step is to ascertain whether, in light of the objective circumstances of the interrogation, ... a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave.... And in order to determine how a suspect would have gauged his freedom of movement, courts must examine all of the circumstances surrounding the interrogation.Peacher v. Commonwealth, 391 S.W.3d 821, 846 (Ky. 2013) (quoting Howes v. Fields, 132 S. Ct. 1181, 1189, 182 L. Ed. 2d 17 (2012)). Whether a defendant is in custody for Miranda purposes is a mixed question of law and fact to be reviewed de novo. Commonwealth v. Lucas, 195 S.W.3d 403, 405 (Ky. 2006). Here, Moss has not argued that he was in custody during the time he talked to Detective Lawson. Nevertheless, there is nothing in the record that would lead us to believe that he was. As our Supreme Court has noted, "[s]ome of the factors that demonstrate a seizure or custody have occurred are the threatening presence of several officers, physical touching of the person, or use of a tone or language that might compel compliance with the request of the police." Id. at 405-06.
Deputy Sherriff Joseph Johnson testified that he informed Moss that he was not under arrest, and that Moss was permitted to ride in the front seat of Deputy Johnson's vehicle when he took Moss to receive medical care. Deputy Johnson also testified that Moss voluntarily entered the vehicle and that they made small talk throughout the ride. Though five officers were present inside Moss's home, the record contains no indication that Moss was handcuffed at that point, that the officers used threatening language or that there was otherwise an inherently coercive atmosphere. See Smith v. Commonwealth, 312 S.W.3d 353, 359 (Ky. 2010) (discussing the requirements for a finding that a defendant is in custody). Furthermore, Moss spoke voluntarily to officers and never affirmatively invoked his right to remain silent.
In Salinas v. Texas, 133 S. Ct. 2174, 2180, 186 L. Ed. 2d 376 (2013), the United States Supreme Court examined whether a petitioner's noncustodial silence could be used against him as substantive evidence of his guilt without violating the Fifth Amendment. After noting that a criminal defendant must affirmatively invoke his Fifth Amendment privilege against self-incrimination, the Court concluded that it did not. Id. at 2184.
Our Supreme Court discussed this decision in Trigg and declined to adopt it at that time, noting that "[t]he opinion of three justices does not establish a precedent." 460 S.W.3d at 329. The court then opted to decide the matter on non-constitutional grounds. Id. at 330. We are unable to decide this opinion on those same grounds; because Moss spoke for some length of time and then declined to speak more, the Commonwealth's references to Moss's silence cannot be construed as an adoptive admission.
Moss points us to Combs v. Coyle, 205 F.3d 269 (6th Cir. 2000). In Combs, the United States Court of Appeals for the Sixth Circuit held that "the use of a defendant's pre-arrest silence as substantive evidence of guilt violates the Fifth Amendment's privilege against self-incrimination." Id. at 283. However, the Sixth Circuit distinguished this holding in Seymour v. Walker, stating that:
Unlike Combs, Seymour chose to testify in her own defense and to propound a theory of self-defense. The prosecutor therefore had a legitimate interest in impeaching her testimony and in not allowing Seymour to use the Fifth Amendment as a sword rather than a shield. Despite the prosecutor's description of Seymour's silence as an indication of guilt, the most logical understanding of his remarks is as an attempt to use Seymour's prearrest silence to undermine her theory of self-defense.224 F.3d 542, 560 (6th Cir. 2000) (citation omitted and internal quotation omitted). As in Seymour, Moss also chose to testify at trial and his theory was self-defense. The most reasonable inference of the Commonwealth's attempt to introduce Moss's pre-arrest silence is in anticipation of Moss's testimony that he had been denied the opportunity to give a complete description of the events to police at that time.
Finally, we believe that the reasoning in Salinas, supra, is persuasive. As the Supreme Court has stated,
...silence is insolubly ambiguous. To be sure, someone might decline to answer a police officer's question in reliance on his constitutional privilege. But he also might do so because he is trying to think of a good lie, because he is embarrassed, or because he is protecting someone else. Not every such possible explanation for silence is probative of guilt, but neither is every possible explanation protected by the Fifth Amendment. Petitioner alone knew why he did not answer the officer's
question, and it was therefore his burden ... to make a timely assertion of the privilege.Salinas, 133 S. Ct. at 2182 (citations and internal quotations marks omitted). The factual circumstances in Parrish v. Commonwealth, 581 S.W.2d 560 (Ky. 1979), are highly similar to this case:
Parrish argues that permitting this testimony into evidence is a breach of the rule laid down by the U.S. Supreme Court against commenting on a defendant's Fifth Amendment right to remain silent. The simple answer to Parrish's argument is that he did not remain silent. He was not in police custody and made various statements to bystanders and to the deputy sheriff. In view of the entire testimony of the deputy sheriff, we are of the opinion there was not a violation of the Doyle rule. Parrish did not stand mute; nor did he claim his Fifth Amendment privilege; neither was there an accusation at the time. In short, he responded to a natural question of "What happened?" posed by a deputy sheriff who arrived on the scene. His reasons for his act were given to other bystanders, and these reasons were consistent with his defense at trial.Id. at 562 (citation omitted). We consider Parrish to binding in the present case, even though it was handed down prior to Salinas, supra. As Moss was not in custody in the present case his pre-arrest silence may be used as substantive evidence and no error occurred.
III. Exclusion of Urinalysis
Moss next argues that the trial court erred when it excluded the fact that five different drugs were found in Thompson's urine, because the long-term effects of substance abuse (and particularly methamphetamine) were relevant to Thompson's behavior that night. We disagree.
In Burton v. Commonwealth, 300 S.W.3d 126 (Ky. 2009) the defendant was convicted of second-degree manslaughter for operating a motor vehicle and causing a collision while under the influence of drugs. Id. at 131. The defendant's urinalysis revealed the presence of marijuana and cocaine, although the "the tests could not determine the concentration of these substances in Burton's system or when he had ingested the substances." Id. Dr. Terry Martinez, a toxicologist and pharmacologist, testified that:
[T]he urine test does not indicate whether Burton was under the influence of, or was impaired by, these substances at the time of the test. The effects of cocaine generally last an hour, but a person's urine could test positive from two to four days after its ingestion. The effects of marijuana could last up to six hours, but a person's urine could test positive seven days after its ingestion. Pointedly, Dr. Martinez testified that the urine test indicated absolutely nothing about whether Mr. Burton was impaired at the time of the accident.Id. at 131-32.
Our Supreme Court determined that admitting the urinalysis test under those circumstances constituted reversible error, stating as follows:
[N]either the lab technicians, nor Dr. Martinez could testify what quantities were present or when the substances had been ingested. In fact, the evidence here showed that the cocaine could have been taken as much as four (4) days prior to the urinalysis test and that the marijuana use may have occurred as much as seven (7) days prior to the urinalysis. Moreover, each witness acknowledged that the urine test indicated absolutely nothing about whether Burton was impaired at the time of the accident. Understandably, given the apparent severity of the head-on-collision, the witnesses' testimony about Burton's conduct while his arm was
flopping unnaturally "from side to side," his walking back and forth in a confused state and almost being struck by an arriving ambulance and the testimony concerning his impairment or mental state following the accident was equivocal.Id. at 137-38 (Ky. 2009) (footnote omitted).
...
Absent a proper context within the other evidence, the introduction of urinalysis results only encouraged speculation. As such, the only real affect the urinalysis results could have had was to brand Burton as a user of drugs. This raises the unduly prejudicial value of the evidence too high to be overcome by the minimal relevancy of its potentially remote use as much as two (2) to seven (7) days prior to the accident...
While logic dictates that use of urinalysis results may be accurate to a low or high degree depending upon the conclusions compelled by the supporting evidence, the same logic dictates that its use without such supporting evidence will result in an unreliably higher conviction rate. Thus, once this evidence was introduced to identify Burton as a "known drug user," the jury verdict was a foregone conclusion.
Thus, we must conclude that the trial court abused its discretion in the admission of this evidence and it was error to do so. Within the context of the other evidence we have reviewed and considering the potential result, we cannot say that the error was harmless...
Dr. Tracey Corey testified in the present case as to the poor reliability of urinalysis testing, as substances are found in the urine for a much longer period of time than they are active in the blood. As such, Thompson's urine only had minimal relevance to the day of his death. Furthermore, our Supreme Court considered the admission of a victim's urinalysis sample in Moorman v. Commonwealth, 325 S.W.3d 325, 332-33 (Ky. 2010):
Evidence of Shoulders's habitual drug use was of minimal relevance to any issue in the trial. Since Appellant admitted to stabbing Shoulders, the only real factual issue was whether the stabbing occurred at Bryant's residence with Appellant as the aggressor, or across the street in the housing project in self-defense against Shoulders's hammer attack. The probative effect of Shoulders's history of heavy drug use was slight or non-existent. Accordingly, the evidence was excludable upon relevancy grounds alone.Id. at 333 (internal citations and quotation marks omitted). In the present case, evidence was admitted as to the amount of methamphetamine in Thompson's blood. The trial court did not err in excluding Thompson's urinalysis.
As previously noted, however, the trial court permitted evidence of Shoulders's drug use twenty-four hours prior to the murder. Further, medical evidence was presented demonstrating through post-mortem blood and urine tests that she had recently used cocaine and marijuana. Also, Appellant testified to Shoulders' heavy drug use. In summary, significant evidence of Shoulders's drug use was, in fact, presented, and the jury was aware that she was a habitual drug user. Additional testimony upon the issue would have amounted to a needless presentation of cumulative evidence.
IV. Penalty Phase Comments on Parole Eligibility
Moss next claims that he is entitled to a new sentencing phase because a probation and parole officer gave incorrect testimony during the penalty phase of his trial. Kentucky Revised Statute (KRS) 439.340(3)(a) provides as follows:
A nonviolent offender convicted of a Class D felony with an aggregate sentence of one (1) to five (5) years who is confined to a state penal institution or county jail shall have his or her case reviewed by the Parole Board after serving fifteen percent (15%) or two (2) months of the original sentence, whichever is longer.
The probation and parole officer testified here that Moss would be eligible for parole after serving 15% of his sentence, without clarifying that Moss would have been eligible for parole only if his aggregate sentence was between one and five years. As Moss's aggregate sentence was fifteen years, he would not be eligible for parole until he had served 20% of his sentence. The Commonwealth concedes this error, but argues that we should not deny relief because this claim is unpreserved. We disagree.
Kentucky Rules of Criminal Procedure (RCr) 10.26 provides that:
A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.
In Robinson v. Commonwealth, 181 S.W.3d 30 (Ky. 2005), our Supreme Court stated as follows:
The use of incorrect, or false, testimony by the prosecution is a violation of due process when the testimony is material. This is true irrespective of the good faith or bad faith of the prosecutor. When the prosecution knows or should have known that the testimony is false, the test for materiality is whether there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.Id. at 38 (citations and internal quotations omitted).
The parties cite to the unpublished case McGregor v. Commonwealth, No. 2012-SC-000245-MR, 2013 WL 4680444, at *6-7 (Ky. 2013) and argue as to its applicability. In that case, our Supreme Court held that when a probation and parole officer incorrectly testified as to a criminal defendant's parole eligibility under KRS 439.340 it constituted reversible error, even though this was unpreserved. Id. at *7. The Commonwealth argues that the reasoning in McGregor should not be persuasive to this Court because that case involved other sentencing errors. Id. at *8. However, in the unpublished case Hill v. Commonwealth, No. 2011-CA-001890-MR, 2013 WL 2150697 (Ky. App. 2013), this Court held that a probation and parole officer's incorrect testimony as to this same matter alone constituted reversible error, even though unpreserved. Id. at *6-7. Although not binding, we find the reasoning in McGregor and Hill to be persuasive.
As our Supreme Court stated in Robinson, "[t]he question remains whether the testimony influenced the jury to render a sentence greater than what it might otherwise have given absent the incorrect testimony. We believe it did and, for sure, can't say it didn't." Robinson, 181 S.W.3d at 38.
We need only reverse for a new penalty phase as to Moss's conviction for tampering. As the probation and parole officer testified that his manslaughter charge was subject to 20% parole eligibility, the jury was aware of the correct parole eligibility as to that charge. Therefore, we reverse the sentencing order and remand this matter back to the trial court for a new sentencing phase trial as to Moss's tampering conviction. Moss's manslaughter conviction is affirmed.
V. The Commonwealth's Penalty Phase Closing Argument
Moss's final assignment of error is that Commonwealth improperly requested the jury to punish him for taking up the state's resources in its penalty phase closing argument. He also alleges that the Commonwealth misrepresented the number of experts required to work on his case in the absence of the tampering charge. The testimony complained of by Moss is as follows:
You've got to deal with, people are allowed to have jury trials and exercise their rights and I'm not talking about that. But our case, the shooting happened for the reason that it did, and you all heard about that. He complicated that by taking and doing what he did with the samurai sword. Think about the jury instructions that you went through. If we don't have that samurai sword issue, what is the trial like?
If we don't have the samurai sword issue, do I have to take up forensic chemists, the head fingerprint person for the state of Kentucky, the head doctor for the state of Kentucky and have them all sitting in a room here, where if I've got them all in a room here, how many cases are they not working on? What other jurisdiction are they not available to? Who's responsible for us having to spend all the manpower and time on this case, because of what he did, not just the death, but what he complicated by tampering with the evidence? Do you give him a pass on that? And that factors into your decision on the length of the sentence, and whether or not you're going to give him consecutive or concurrent.
Moss concedes that this error is unpreserved. This Court will reverse for prosecutorial misconduct in a closing argument only if the misconduct is "flagrant" or if each of the following three conditions is satisfied:
1) Proof of defendant's guilt is not overwhelming;
2) Defense counsel objected; and
3) The trial court failed to cure the error with a sufficient admonishment to the jury. Newcomb v. Commonwealth, 410 S.W.3d 63, 88 (Ky. 2013) (quoting Matheney v. Commonwealth, 191 S.W.3d 599, 606 (Ky. 2006)). "It is unquestionably the rule in Kentucky that counsel has wide latitude while making opening or closing statements." Brewer v. Commonwealth, 206 S.W.3d 343, 350 (Ky. 2006).
As this error is unpreserved, we will review for flagrant prosecutorial misconduct. It is true that many of the experts in the case would have had to have been utilized anyway on Moss's murder charges alone. We cannot say that in this context this remark amounts to a "deliberate, or calculated misstatement by the Commonwealth." Mullins v. Commonwealth, 350 S.W.3d 434, 440 (Ky. 2011). Even though the Commonwealth did overstate the necessity of experts needed solely for the tampering charge, it is true that additional work is generally needed as a result of a tampering conviction and there is nothing improper about telling the jury that they may rely on that in fixing punishment.
In Norton v. Commonwealth, 471 S.W.2d 302 (Ky. 1971), our Supreme Court stated that though "the Commonwealth will avoid reference to the time and trouble caused him and the special judge because of the defendant's plea of not guilty[,]" the court found the comments to be "unobjectionable, and clearly nonprejudicial." Id. at 306. In Purdue v. Commonwealth, 916 S.W.2d 148 (Ky. 1995) our Supreme Court stated as follows:
[D]uring the penalty phase, the Commonwealth turned what was a matter of fact concerning appellant's decision to go to trial, supra, into an attack on his character because of his demand for a trial. During the penalty phase closing, the Commonwealth stated that, although Melton took her punishment, "[t]his man didn't do that. He didn't 'fess' up. He didn't come in here and tell you the truth." It is flatly improper to refer to the "time and trouble" occasioned by a plea of not guilty and the resulting trial. This, in combination with other penalty phase errors, requires reversal.Id. at 163-64 (citation omitted).
The situation here is not quite the same situation as the one described in Perdue or Norton. The Commonwealth was not referring to the fact that Moss pled not guilty, but rather was referring to the fact that Moss tampered with evidence and therefore complicated the proceedings. Therefore, there was no palpable error here. However, since there will be a new sentencing phase on this issue, the Commonwealth should refrain from overstating the necessity for expert witnesses.
Conclusion
In sum, we hold that Sanders's statement that Moss "shot [Thompson] in the back for no reason" constituted an adoptive admission, even though no direct evidence was introduced that Moss heard and understood Sanders's statement, as testimony was introduced to the effect that it was highly likely that Moss did. We also hold that the circumstances surrounding that admission did not deprive Moss of the freedom to contradict Sanders's statement, as Moss actually did make a statement to police later. We rely on the United States Supreme Court's holding in Salinas, supra, that a criminal defendant's noncustodial pre-arrest silence may be used as substantive evidence of his or her guilt. We also hold that that incorrect probation and parole testimony as to Moss's parole eligibility constituted palpable error. Finally, we hold that the Commonwealth's comments during penalty phase closing arguments did not amount to palpable error.
Moss's sentence for tampering is vacated. Moss's manslaughter conviction and tampering conviction are affirmed. We remand for a new penalty phase consistent with this opinion.
MAZE, JUDGE, CONCURS.
THOMPSON, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
THOMPSON, JUDGE, DISSENTING: I respectfully dissent as to the portion of the opinion vacating Moss's tampering sentence and remanding for resentencing on that conviction.
Moss sought palpable error review of the probation and parole officer's failure to inform the jury that if Moss was sentenced to an aggregate sentence above five-years' incarceration, he would be required to serve 20% of his sentence before becoming eligible for parole arguing this constituted false testimony. The probation and parole officer testified truthfully that Moss was eligible for parole after serving 15% of his sentence for tampering and 20% of his sentence for manslaughter, and was never asked about the effect of an aggregate sentence upon parole eligibility. The Commonwealth did not recommend any particular sentence or argue how parole eligibility should impact the jury's decision.
The jury sentenced Moss to the maximum sentences available for his convictions, ten-years' incarceration for second-degree manslaughter conviction (class C felony) and five-years' incarceration for tampering conviction (class D felony), to be served consecutively for a total of fifteen-years' incarceration. KRS 532.060(2)(c)(d).
No palpable error occurred because Moss's parole eligibility does not appear to have impacted the length of the sentence the jury assigned. Assuming the probation and parole officer's testimony could be considered false testimony, it would not be material because there is not "any reasonable likelihood that the false testimony could have affected the judgment of the jury." Robinson v. Commonwealth, 181 S.W.3d 30, 38 (Ky. 2005) (quoting United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976)). Considering that the probation and parole officer's error of omission only introduced a possible 5% misconception in the minimum percentage of time needed for parole eligibility and the Commonwealth did not rely on the error to influence the jury's judgment or recommend any particular sentence, there is no reasonable likelihood that it affected the judgment of the jury in recommending the maximum sentence possible. See Karr v. Commonwealth, No. 2013-SC-000413-MR, 2014 WL 2810028, 2 (Ky. 2014) (unpublished) (concluding no palpable error because incorrect testimony about sentencing credit did not create a reasonable likelihood of influencing the jury's judgment where Commonwealth did not emphasize it and jury recommended maximum sentence).
I rely on the reasoning of this unpublished decision pursuant to Kentucky Rules of Civil Procedure (CR) 76.28(4)(c). --------
Accordingly, I dissent in part. BRIEF FOR APPELLANT: Erin Hoffman Yang
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Jason B. Moore
Assistant Attorney General
Frankfort, Kentucky