Opinion
Nos. 2002-SC-0388-MR, 2003-SC-0084-TG.
November 18, 2004.
Appeal from Fayette Circuit Court, Honorable Thomas L. Clark, Judge, 00-CR-865.
Transfer from Court of Appeals, 2003-CA-192, Fayette Circuit Court, 00-CR-865.
William E. Johnson, J. Guthrie True, Johnson, Judy, True Guarnieri, LLP, Frankfort, Ky, Jerry L. Wright, Herren and Adams, Lexington, Ky, Counsel for Appellant.
Gregory D. Stumbo, Attorney General, Frankfort, Ky, Connie Vance Malone, Matthew D. Nelson, Assistant Attorneys General, Office of Attorney General, Criminal Appellate Division, Frankfort, Ky, Counsel for Appellee.
OPINION
Appellant, Shane Layton Ragland, was convicted by a Fayette Circuit Court jury of murder and sentenced to thirty years in prison. He appeals to this Court as a matter of right, Ky. Const. § 110(2)(b), asserting eight claims of reversible error, viz: (1) failure to grant Appellant's motion for a change of venue; (2) failure to declare a mistrial when the prosecutor commented on Appellant's failure to testify at trial; (3) failure to suppress evidence obtained pursuant to search warrants; (4) failure to suppress evidence of statements made by Appellant during a custodial interrogation; (5) admission of hearsay statements made by the victim; (6) admission of ballistics evidence with respect to weapons other than the alleged murder weapon; (7) admission of expert testimony with respect to the results of comparative bullet lead analysis; (8) failure to grant a new trial on the basis of newly discovered evidence. The prosecutor's comment on Appellant's exercise of his Fifth Amendment right not to testify requires reversal for a new trial. Thus, we need not address the claims relating to venue, which can be renewed prior to retrial, or entitlement to a new trial on the basis of newly discovered evidence. We will address other claims of error because they are likely to recur upon retrial. Springer v. Commonwealth, Ky., 998 S.W.2d 439, 445 (1999).
* * *
On the night of July 17, 1994, Trent DiGiuro, a student athlete at the University of Kentucky, was shot in the head and killed as he sat in a chair on the front porch of his residence at 570 Woodland Avenue, Lexington, Kentucky. DiGiuro was celebrating his twenty-first birthday with friends, some of whom were on the porch with him when he was killed. Although one eyewitness heard the shot, no one saw who fired it or from where it was fired. Fragments of the fatal bullet were recovered during the postmortem examination and a firearms expert concluded that the bullet most likely had been fired from a.243 caliber rifle with a four-groves-and-lands, right-twist barrel pattern. Lexington police found two holes in the ground under some bushes near the corner of Woodland and Columbia Avenues, which could have been caused by a bipod rifle stand. Because the spot provided a clear line of sight to the front porch of DiGiuro's residence, the police surmised that it was the spot from where the shot had been fired. Although numerous leads were followed and at least one suspect was identified, six years elapsed before anyone was charged with the murder.
In January 2000, Aimee Lloyd, Appellant's ex-girlfriend, informed Lexington police officers that Appellant confessed to her in April 1995 that he killed DiGiuro because DiGiuro had caused Appellant to be "blackballed" by his college fraternity three years earlier. According to Lloyd, Appellant showed her the rifle he had used to shoot DiGiuro and later told her that he had hidden the rifle at his mother's residence at 501 Capital Avenue, Frankfort, Kentucky. Lloyd also believed the rifle belonged to Appellant's father and that Appellant may have subsequently returned it to his father's residence at 1469 Old Lawrenceburg Road, Frankfort. Appellant resided part-time at both residences. Lloyd also told the police that during her relationship with Appellant from 1994 to 1997, he and one of his friends engaged in a marijuana-growing operation, including cultivating marijuana on his father's Old Lawrenceburg Road property. Because they had no jurisdiction outside of Lexington, the Lexington police referred the information about the location of the weapon and the marijuana operation to the Kentucky State Police and the Federal Bureau of Investigation (F.B.I.).
On July 12, 2000, F.B.I. Special Agent Gary Miller obtained warrants from a United States Magistrate to search the Frankfort residences of Appellant's parents. On July 13, 2000, Lloyd, pursuant to a ruse and in cooperation with Lexington police, met Appellant at a bar in Lexington and attempted to engage him in a secretly recorded conversation about the DiGiuro murder. The Commonwealth claims that during that conversation Appellant expressed regret for having murdered DiGiuro. Appellant claims he only expressed regret for having mistreated Lloyd during their former relationship. The recorded conversation, which prosecutors played for the jury at trial, was arguably ambiguous. On July 14, 2000, Lexington police officers interrogated Appellant at police headquarters and F.B.I. agents executed the search warrants at the Frankfort residences of Appellants' parents. Although Appellant did not confess to the murder of DiGiuro, he made some statements during the interrogation that were inconsistent with other information his interrogators believed to be true.
The search of the 501 Capital Avenue residence revealed a .243 caliber Wetherby Vanguard rifle with three unspent .243 caliber bullets in the chamber. The search of the 1469 Old Lawrenceburg Road residence revealed an ammunition box containing seventeen unspent.243 caliber bullets. A label on the box indicated the Winchester Ammunition Company had manufactured the bullets on April 28, 1994. Kathleen Lundy, a forensic scientist employed by the F.B.I., subjected the three bullets found in the Wetherby Vanguard rifle, sixteen of the seventeen bullets found in the ammunition box, and the fragment of the bullet that killed DiGiuro to a comparative bullet lead analysis. She testified at trial that one of the bullets recovered from the rifle and nine of the bullets found in the ammunition box were "analytically indistinguishable" in metallurgical composition from the bullet that killed DiGiuro, a finding she described as "consistent with" the bullets having originated from the same source of molten lead.
Markings on bullets test-fired from the.243 Wetherby Vanguard rifle found at 501 Capital Avenue matched the markings on the murder bullet. Markings on bullets test-fired from three other.243 Wetherby Vanguard rifles manufactured during the same time period as the Ragland rifle did not match those found on the murder bullet. However, the firearm's examiner was unable to conclusively say that the Ragland rifle fired the murder bullet because of the degree of fragmentation of the bullet.
I. COMMENT ON SILENCE.
The Commonwealth played for the jury during its case-in-chief most of Appellant's July 14, 2000, videotaped interrogation by Lexington police officers. Appellant exercised his Fifth Amendment right not to testify in his own defense. During guilt-phase closing argument, the prosecutor commented as follows on Appellant's silence:
We're not saying that the shot was fired from underneath that bush. You've never heard us say the shot was fired from underneath that bush. . . . That is a place the shot could have been fired from. It's a place that has a line of sight to the porch. It happens to be a place that lines up very well with the idea that Trent is sitting in this chair kind of angled to the center or maybe looking over at his friends and gets shot straight across. So it matches that very well. And it's a place where it has those two marks in the ground. But we're not saying that's where it's fired from. We don't know where that shot was fired from. The only person who knows where that shot was fired from exactly is the person sitting in that chair over there [indicating Appellant] and he hasn't seen fit to tell us.
(Emphasis added.)
Defense counsel objected, moved for a mistrial, and requested, alternatively, that the jury be admonished to disregard the comment. The objection was overruled, the motion for a mistrial was denied, and the requested admonition was not given.
Defense: I want to object, Your Honor. Could I come forward a moment?
[At the bench.]
Defense: He's just commented on the defendant not taking the witness stand.
Pros.: I did not.
Defense: And we, we would accordingly move for a mistrial. Yes, he said, "He didn't tell us." And I'm sure that's what I heard him say.
Pros.: I didn't say anything about testifying. I said he didn't tell. He was interviewed and he gave a statement. And they got up here and relied on his statement today as evidence in this case. And that's what I'm talking about. I'm talking about his statement to the police. Now, I'll clear it up and say about the police if you want.
Judge: Well, I'll overrule the objection.
Defense: We'd ask you to admonish the jury.
. . .
Pros: Whatever you think is appropriate to do Judge. I mean if you want to say that. I'll, I'm going to go back and clarify I'm talking about when he talked to the police about what happened he didn't tell them.
Judge: That will be sufficient.
Pros: [continuing closing argument]:
What I'm talking about ladies and gentlemen, is that the defendant talked to the police about this case and they asked him about it and he didn't say, "You know, I shot it from over here." That's what I'm talking about. He didn't say anything about that.
(Emphasis added.)
The problem with the prosecutor's explanation is that the videotape of the July 14, 2000, interrogation reflects that the police never asked Appellant about the location from where the shot was fired — in fact, they never asked him if he fired the shot or even whether he killed DiGiuro. Instead, the interrogation focused largely on whether Appellant had told Aimee Lloyd that he killed DiGiuro. Thus, there was no basis for the prosecutor's claim that the police "asked" Appellant during his interrogation about the location from where the shot was fired and that he had not "seen fit to tell us." Since the prosecutor's comment could not have referred to Appellant's silence during the police interrogation, it could only have referred to Appellant's failure to testify at trial.
As for the suggestion that defense counsel "opened the door" by relying on the police interrogation during his own closing argument, the only reference made to the interrogation by defense counsel was to Appellant's statement, when informed by the police that his room was being searched as they spoke, that "I have nothing to hide."
The Fifth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, Malloy v. Hogan, 378 U.S. 1, 10-11, 84 S.Ct. 1489, 1495, 12 L. Ed.2d 653 (1964), forbids comment by the prosecution on the accused's silence at trial. Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965). Such was the law of Kentucky long before Griffin was decided:
In any criminal or penal prosecution the defendant, on his own request, shall be allowed to testify in his own behalf, but his failure to do so shall not be commented upon or create any presumption against him.
KRS 421.225 (originally enacted as KS 1645, 1893 Ky. Acts, ch. 227, § 22, at 1167).
The prosecutor's comment in this case was almost identical to the comment that required reversal for a new trial in Bradley v. Commonwealth, Ky., 261 S.W.2d 642 (1953), viz:
There was one person in my opinion who could have told you, but if anybody told you I didn't hear it.
Id. at 643. It was also eerily similar to the comment condemned in Griffin, supra:
These things he has not seen fit to take the stand and deny or explain. And in the whole world, if anybody would know, this defendant would know.
Id. at 611, 85 S.Ct. at 1231.
Compare Dillard v. Commonwealth, Ky., 995 S.W.2d 366 (1999), in which the prosecutor told the jury in closing argument that the defendant lied in his statement to the police. "The focus of the closing argument in that respect was not that Appellant failed to give a statement to the police, but that the statement he gave was untruthful." Id. at 373. Since there was no mention of the location from where the shot was fired during the July 14, 2000, interrogation, the prosecutor was not claiming in this case that Appellant lied about the location during his interrogation by the police.
The prosecutor in Dillard also directly commented on Dillard's failure to testify, but the remark was rendered harmless because Dillard was not convicted of the offense to which the prosecutor referred at that point. Furthermore, unlike here, the trial judge gave the jury a curative admonition reminding them of his previous written instruction regarding the defendant's right not to testify.
The prosecutor's comment on Appellant's failure to testify was intentional and flagrant. His repeated statements that he did not know whether the shot was fired from under the bush served no purpose except to set the stage for the comment that invited the jury to infer Appellant's guilt from his failure to testify. In Barnes v. Commonwealth, Ky., 91 S.W.3d 564 (2002), we held:
[W]e 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.
Id. at 568. Here, the misconduct was both flagrant and satisfied all three of the alternative conditions enumerated in Barnes. This violation of Appellant's Fifth Amendment right not to be a witness against himself requires reversal and remand for a new trial.
II. SEARCH WARRANTS.
Appellant asserts that the evidence recovered during the execution of the federal search warrants should have been suppressed on grounds that (1) the affidavit supporting the warrants was insufficient to establish probable cause; and (2) the warrants were procured by deliberate falsehood or a reckless disregard for the truth.
The affidavit executed by Special Agent Miller alleged that Miller was investigating federal charges of drug trafficking in violation of 21 U.S.C. § 846 and possession of a firearm by an unlawful user or addicted person in violation of 18 U.S.C. § 922(g)(3). In addition to the information obtained from Aimee Lloyd about her knowledge of the location of the rifle and the marijuana-growing operations, the affidavit recited a December 1997 arrest of Appellant for DUI (operating a motor vehicle while under the influence of alcohol), at which time he was in possession of marijuana and a pistol and stated that his address was 501 Capital Avenue, Frankfort; another arrest of Appellant for DUI in November 1999, at which time he was in possession of marijuana and drug paraphernalia and also stated that his address was 501 Capital Avenue; and a third arrest of Appellant for DUI in March 2000, at which time he was in possession of marijuana and drug paraphernalia and stated that his address was 1469 Old Lawrenceburg Road, Frankfort. The affidavit also described the following "trash pulls":
March 3, 2000, at 501 Capital Avenue, finding plastic bags with marijuana residue and pieces of paper with notations of weights, construed to be drug records;
April 7, 2000, at 501 Capital Avenue, finding a marijuana cigarette;
April 14, 2000, at 501 Capital Avenue, finding a plastic bag with marijuana seeds and stems;
April 19, 2000, at 1469 Old Lawrenceburg Road, finding a scrap of paper with a notation from "JR" [Appellant's father] to "Amy" [father's secretary] stating that he would be in court today with Shane [Appellant];
April 21, 2000, at 501 Capital Avenue, finding a plastic bag with marijuana residue;
April 28, 2000, at 501 Capital Avenue, finding marijuana residue;
May 3, 2000, at 1469 Old Lawrenceburg Road, finding a list of names and telephone/pager numbers, at least four of the names and numbers being those of known or suspected drug dealers. The list also contained two entries for "Dad" indicating the list was prepared by Appellant, not his father;
May 5, 2000, at 501 Capital Avenue, finding a marijuana plant [the plant was later determined not to be marijuana, but that information was not obtained until after the warrant was executed];
May 10, 2000, at 1469 Old Lawrenceburg Road, finding an envelope postmarked May 2, 2000, addressed to "Shane Ragland, 1469 Old Lawrenceburg Road, Frankfort, Kentucky," [indicating that to be Appellant's residence];
Finally, the affidavit recited that on June 28, 2000, Aimee Lloyd received an e-mail message from Appellant advising her that he could be reached at either the telephone number for 1469 Old Lawrenceburg Road or the telephone number for 501 Capital Avenue.
1. Probable cause.
A magistrate's determination of probable cause is entitled to "great deference" and should be upheld so long as the magistrate had a "substantial basis for concluding that a search would uncover evidence of wrongdoing." Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983) (internal quotation omitted); Beemer v. Commonwealth, Ky., 665 S.W.2d 912, 914 (1984); see also Massachusetts v. Upton, 466 U.S. 727, 732-33, 104 S.Ct. 2085, 2087, 80 L.Ed.2d 721 (1984) (reemphasizing Gates). Gates established a "totality of the circumstances" approach to probable cause. Gates, 462 U.S. at 230-31, 104 S.Ct. at 2328. Under this test, the issuing magistrate need only "make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." Id. at 238, 103 S.Ct. at 2332. The trial court concluded that the evidence outlined in the affidavit was sufficient to establish probable cause that there was a fair probability that evidence of a crime would be found at either or both of the properties at 501 Capital Avenue and 1469 Old Lawrenceburg Road.
Appellant argues, however, that probable cause cannot be premised upon "stale" information, relying primarily on United States v. Grant, 108 F.Supp.2d 1172 (D. Kan. 2000). Indeed, the federal district judge in Grant found that evidence of one sale of cocaine at a particular location six months prior to the issuance of the warrant, coupled with the defendant's past record of drug activity, was insufficient to establish probable cause. Id. at 1175-76. However, the court also noted:
In reviewing the issue of staleness, it is important to look at the nature of the offense and the length of criminal activity, not simply the number of days that have elapsed. Where the offense in question is ongoing and continuing, the passage of time is not of critical importance. Where the affidavit recites a mere isolated violation it would not be unreasonable to imply that probable cause dwindles rather quickly with the passage of time. However, where the affidavit properly recites facts indicating activity of a protracted and continuous nature, a course of conduct, the passage of time becomes less significant.
Id. at 1175 (internal quotations and citations omitted). See also United States v. Spikes, 158 F.3d 913 (6th Cir. 1998):
[W]hether information contained in an affidavit is stale "must be determined by the circumstances of each case." Sgro [ v. United States], 287 U.S. at 210-211, 53 S.Ct. 138. In judging the "circumstances of each case," the length of time between the events listed in the affidavit and the application for the warrant, while clearly salient, is not controlling.
As this court recognized in United States v. Henson, "[t]he function of a staleness test in the search warrant context is not to create an arbitrary time limitation within which discovered facts must be presented to a magistrate." 848 F.2d 1374, 1382 (6th Cir. 1988). Rather, the question of staleness depends on the "inherent nature of the crime." Id. Instead of measuring staleness solely by counting the days on a calendar, courts must also concern themselves with the following variables: "the character of the crime (chance encounter in the night or regenerating conspiracy?), the criminal (nomadic or entrenched?), the thing to be seized (perishable and easily transferable or of enduring utility to its holder?), the place to be searched (mere criminal forum of convenience or secure operational base?), etc." Andresen v. State, 24 Md.App. 128, 331 A.2d 78, 106 (1975). As these variables demonstrate, even if a significant period has elapsed since a defendant's last reported criminal activity, it is still possible that, depending upon the nature of the crime, a magistrate may properly infer that evidence of wrongdoing is still to be found on the premises. See United States v. Greany, 929 F.2d 523, 525 (9th Cir. 1991) (holding information not stale even though an informant said that two years ago he had remodeled defendant's premises to allow him to grow marijuana on second floor, with the court emphasizing that the information showed "an ongoing criminal business of a necessarily long-term nature"); see also United States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972) (stating the general principle that when "the affidavit properly recites facts indicating activity of a protracted and continuous nature, a course of conduct, the passage of time becomes less significant").
Id. at 923-24. Furthermore, "[w]here recent information corroborates otherwise stale information, probable cause may be found." Id. at 924 (internal quotation omitted).
While Lloyd's information about the marijuana growing operation, standing alone, was arguably "stale," it was corroborated by Appellant's possession of marijuana at the time of his recent arrests and the marijuana and drug-related evidence found during the "trash pulls" at his parents' respective residences. Further, we do not believe the "staleness" test applies to Appellant's continued possession of the.243 caliber rifle at his mother's residence, which could be more accurately categorized as a "secure operational base" than a "mere criminal forum of convenience." One could surmise that if the rifle was the murder weapon and Appellant intended to dispose of it, he would have done so shortly after the offense was committed.
2. Alleged false and misleading information.
Appellant requested and received a so-called Franks hearing on the issue of whether the affidavit contained false and misleading information. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). This issue also pertains to whether the persons executing the warrant, who included the affiant, were entitled to a "good faith" reliance on the warrant, if invalid. United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 3420, 82 L.Ed.2d 677 (1984); Crayton v. Commonwealth, Ky., 846 S.W.2d 684, 688 (1992). At the conclusion of the Franks hearing, the trial court entered a written order finding that the affidavit in support of the search warrant contained no statements that were false or made in reckless disregard of the truth. Without detailing each allegation and the evidence refuting it, suffice it to say that the trial court's finding in that respect was supported by substantial evidence. RCr 9.78.
III. CUSTODIAL INTERROGATION.
Appellant asserts that the statements he made during the July 14, 2000, interrogation should have been suppressed because (1) he received inadequate Miranda warnings; (2) he never waived any of his Miranda rights; and (3) he asserted his right to counsel.
1. Adequacy of warnings.
After obtaining preliminary identification information, i.e., name, address, date of birth, etc., Sergeant Barnard of the Lexington police, the lead interrogator, advised Appellant of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The transcript of the videotaped interrogation seems to support Appellant's claim that the warning was inadequate. The transcript reads:
Barnard: You got the right to remain silent. Anything you say can — do you understand your rights? You have the right to an attorney. If you can't afford one will be appointed to you. Anytime during questioning you want one (unintelligible) just ask me and you can have one. You understand those?
Ragland: (unintelligible).
At the suppression hearing, Barnard explained that he actually said: "Anything you say can be used against you in court," but the videotape operator had inadvertently turned off the volume switch, causing the missing words to be unrecorded. A review of the videotape reveals that Barnard did continue speaking and gesturing after he is heard to say "Anything you say" and before he is heard to say "do you understand your rights?" The trial court accepted Barnard's explanation and found that Appellant had been adequately warned. Miranda does not require a "talismanic incantation" as long as the warnings adequately advise the suspect of his Miranda rights. California v. Prysock, 453 U.S. 355, 359-60, 101 S.Ct. 2806, 2810, 69 L.Ed.2d 696 (1981); Miranda, 384 U.S. at 476, 86 S.Ct. at 1629 ("The warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by the defendant.") (emphasis added). Nor do the warnings have to be in writing, United States v. Stuckey, 441 F.2d 1104, 1105 (3d Cir. 1971), much less audiotaped or videotaped. Cf. Brashars v. Commonwealth, Ky., 25 S.W.3d 58, 60-62 (2000) (no constitutional requirement that confession be recorded). The trial court's finding that parts of Barnard's warnings to Appellant were inadvertently deleted from the audio portion of the videotape was supported by substantial evidence, thus is conclusive. RCr 9.78.
2. Waiver.
Appellant asserts that he neither acknowledged that he understood his Miranda rights nor specifically waived them. However, while the transcript reflects that his response to the inquiry as to whether he understood his rights was unintelligible, the videotape clearly shows him nodding his head in the affirmative. See State v. Flores, 454 P.2d 172, 177 (Ariz.Ct.App. 1969) (suspect shook head "yes"); People v. Crane, 585 N.E.2d 99, 103 (111. 1991) (affirmative nod). Shortly thereafter, he made statements indicating that he knew he had the right to counsel. He then voluntarily answered the questions asked by his interrogators. A suspect may waive his Miranda rights either expressly or implicitly. North Carolina v. Butler, 441 U.S. 369, 375-76, 99 S.Ct. 1755, 1758-59, 60 L.Ed.2d 286 (1979). When a suspect has been advised of his rights, acknowledges an understanding of those rights, and voluntarily responds to police questioning, he may be deemed to have waived those rights. Gorham v. Franzen, 760 F.2d 786, 795 (7th Cir. 1985) ("His failure to invoke clearly those rights, which he knew and understood, amounted to a waiver of his right to remain silent under the fifth amendment."); United States v. Ogden, 572 F.2d 501, 502-03 (5th Cir. 1978) ("After he was given the Miranda warnings, defendant indicated that he understood them, but nevertheless he chose to inculpate himself. There was no evidence that defendant's decision to speak was anything but voluntary."); see also United States v. Ferrer-Cruz, 899 F.2d 135, 141 (1st Cir. 1990) ("The basic governing legal rule is that a court, in considering whether a defendant has voluntarily relinquished his Fifth Amendment rights, must examine the `totality of circumstances surrounding the interrogation.'"). The trial court's finding that Appellant voluntarily waived his Miranda rights was supported by substantial evidence. RCr 9.78.
3. Invocation of right to counsel.
Shortly after Appellant acknowledged that he understood his Miranda rights, the following colloquy occurred:
Ragland: Do I need to get an attorney for this because I'm really concerned?
Barnard: Okay. Well, that, that's your choice.
Ragland: I don't think I need one but you know. . . .
Barnard: Okay, that's, that's your choice. Okay, all I can tell you, I read your rights. . . .
If at any time during a police interrogation the suspect has "clearly asserted" his right to counsel, the interrogation must cease until an attorney is present. Edwards v. Arizona, 451 U.S. 477, 485, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981); see also Miranda, 384 U.S. at 474, 86 S.Ct. at 1627. "But if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning." Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362 (1994). In Davis, the statement, "Maybe I should talk to a lawyer," id. at 455, 114 S.Ct. at 2353, was held not to have been a clearly asserted request for counsel. See also Moran v. Burbine, 475 U.S. 412, 433 n. 4, 106 S.Ct. 1135, 1147 n. 4, 89 L.Ed.2d 410 (1986) ("[T]he interrogation must cease until an attorney is present only [i]f the individual states that he wants an attorney") (citations and internal quotations omitted). In Dean v. Commonwealth, Ky., 844 S.W.2d 417 (1992), we held that the request for counsel must be "unambiguous and unequivocal" in order to have been "clearly asserted" as required by Edwards. Id. at 420. We agree with the trial court that Appellant's quoted statements did not amount to an "unambiguous and unequivocal" request for counsel such as to require cessation of further interrogation. Later in the interrogation, Appellant did request an attorney and the trial court properly suppressed any statements he made after that request.
IV. HEARSAY.
In the fall of 1991, Appellant, DiGiuro, and Matt Blandford were all college freshmen. Blandford and Appellant had pledged the same social fraternity. Blandford and DiGiuro shared the same dormitory room and they had hung a wall calendar containing photographs of female students. One afternoon, while in the dormitory room with Blandford and DiGiuro, Appellant boasted that he had "slept with" one of the female students pictured on the calendar. The student in question happened to be the girlfriend of a senior member of Appellant's fraternity. Shortly thereafter, the senior fraternity member confronted Appellant about the boast and Appellant was subsequently "blackballed" from the fraternity. Blandford testified that he and DiGiuro later encountered Appellant while walking across campus and that Appellant accused him (Blandford) of having told the senior fraternity member about his boast. According to Blandford, DiGiuro intervened and said that he was the one who had reported the boast to the senior fraternity member. This repetition of DiGiuro's statement was not inadmissible hearsay because it was not offered to prove the truth of DiGiuro's statement, i.e., that he was the person who reported Appellant's boast to the senior fraternity member. KRE 801(c) (hearsay defined as an out-of-court statement offered to prove the truth of the matter asserted). It was offered only to prove DiGiuro made the statement that provided the motive for Appellant to kill him in revenge. United States v. Levine, 5 F.3d 1100, 1107 (7th Cir. 1993) (victims' statements, even if false, provided motive for murder); People v. Moss, 792 N.E.2d 1217, 1229 (Ill. 2001) (same); State v. Cox, 472 S.E.2d 760,763 (N.C. 1996) (same).
Sometime later, Blandford and Appellant engaged in a fight at a local bar. Blandford testified that he told DiGiuro about the fight and that DiGiuro told him that he was going to call Appellant. Although this statement was hearsay, it was admissible under the state-of-mind exception to the hearsay rule, KRE 803(3), because it was a statement of future intent. Crowe v. Commonwealth, Ky., 38 S.W.3d 379, 382 (2001).
V. BALLISTICS TESTING.
The ballistics expert who test-fired bullets from the.243 Wetherby Vanguard rifle found at 501 Capital Avenue testified that the markings found on the test bullets were similar to those found on the bullet fragment removed from DiGiuro's body. However, because of the degree of fragmentation of the murder bullet, the witness could not state conclusively that the Ragland rifle fired the murder bullet. There was evidence that 1,418.243 caliber Wetherby Vanguard rifles were manufactured during the period 1986-2000. The police were able to locate three more of those rifles. Ballistics testing of those three rifles revealed that none could have fired the bullet that killed DiGiuro. Appellant asserts this evidence was irrelevant and highly prejudicial. KRE 403. We disagree. The evidence was relevant to dispel a possible claim that any.243 caliber Wetherby Vanguard rifle would have left the same markings on the murder bullet. Evidence demonstrating that other rifles of the same caliber manufactured by the same manufacturer caused different markings on test-fired bullets enhanced the relevancy of the evidence that markings on bullets test-fired from the Ragland rifle were similar to the markings found on the murder bullet. In other words, it provided additional circumstantial evidence that the Ragland rifle fired the fatal shot.
VI. COMPARATIVE BULLET LEAD ANALYSIS.
1. "Daubert" ruling.
Appellant moved to suppress the expert opinion of Kathleen Lundy, an F.B.I. forensic scientist, that the metallurgical composition of the.243 caliber bullet fragment removed from DiGiuro's body was analytically indistinguishable from one of the three bullets in the rifle found at 501 Capital Avenue and nine of the seventeen bullets in the ammunition box found at 1469 Old Lawrenceburg Road, a finding consistent with the bullets having originated from the same source, i.e., the same batch of molten lead. Appellant asserts that Lundy's conclusions in that regard are scientifically unreliable. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); Mitchell v. Commonwealth, Ky., 908 S.W.2d 100, 101-02 (1995) (adopting Daubert in Kentucky), overruled in part on other grounds by Fugate v. Commonwealth, Ky., 993 S.W.2d 931, 937 (1999). This "gatekeeping" role of the trial court, Daubert, 509 U.S. at 527, 113 S.Ct. at 2798, is designed to screen "junk science" out of the courtroom, Elsayed Mukhtar v. Cal. State Univ., 299 F.3d 1053, 1063 (9th Cir. 2002), by requiring a preliminary determination that proffered expert testimony meets the reliability standards of KRE 702.
Faced with a proffer of scientific testimony . . ., the trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. . . .
Daubert, 509 U.S. at 592-93, 113 S.Ct. at 2796. A finding that the reasoning or methodology is scientifically reliable is reviewed for clear error. Miller v. Eldridge, Ky., No. 2001-SC-0628-DG, slip op. at 10 (October 21, 2004). A determination that the evidence will assist the trier of fact is reviewed for abuse of discretion. Id. at ___, slip op. at 12.
Lundy testified at the Daubert hearing that lead bullets are manufactured primarily from recycled automobile batteries. Most bullet manufacturers purchase their lead in bulk from secondary smelters (recyclers), who crush and melt the batteries, then separate the lead to the extent possible from the other battery contents. The molten lead is then cooled and formed into 60-to-100-pound bricks or ingots, 70-to-125-pound cylindrical billets, or 1,000-to-2,000-pound blocks. Each ingot, billet, or block will inevitably contain traces of arsenic, antimony, tin, bismuth, copper, silver, and/or cadmium, elements that were contained in the batteries but did not separate from the lead during the recycling process. The bullet manufacturers only require that the percentages of these trace elements not exceed certain levels. The smelter tests each batch of molten lead as it is poured from its crucible and reports the percentages of impurities to the bullet manufacturer when the product is delivered.
At the bullet manufacturing plant, the manufacturer inserts the lead into an extrusion press that forms it into a "bullet wire" having the diameter of the desired bullets. The wire is chopped into pieces that are then swaged into bullets. If the lead is purchased from the smelter in billet form, it can be inserted directly into the extrusion press. However, if it is purchased in ingot or block form, it must be remelted and reformed at the bullet manufacturing plant. When this occurs, the manufacturer will commonly add lead waste or scraps remaining from earlier extrusion, chopping and swaging processes to the mix, thus changing the percentages of the impurities in that particular batch. Even if the manufacturer buys only billets, it will still remelt lead waste and scraps for reuse.
Because there is no way to know the exact source of the lead used in a particular bullet, i.e., whether it was melted by a secondary smelter, whether it was remelted from waste and scraps by the manufacturer, or whether each bullet in a box contains lead from the same melt, Lundy does not attempt to trace the origin of each bullet to its source. Instead, she uses a machine that measures the percentages of trace elements by a methodology known as inductively coupled plasma-atomic emission spectroscopy, or "ICP." If the percentages of impurities in two bullets are the same, i.e., "analytically indistinguishable," that fact is "consistent with" the bullets having originated from the same batch of molten lead. As applied to this case, that finding constituted circumstantial evidence that the bullet that killed DiGiuro was manufactured at the same time as one of the bullets contained in the rifle found at 501 Capital Avenue and nine of the bullets contained in the ammunition box found at 1469 Old Lawrenceburg Road. From this circumstantial evidence, the jury could infer that the murder bullet, one of the bullets found in the rifle, and nine of the bullets found in the ammunition box were all purchased together and, thus, the murder bullet belonged to Appellant.
Contradicting this inference, however, was the testimony of Paul Szabo, an employee of Winchester Ammunition, that the ammunition box found at 1469 Old Lawrenceburg Road originally contained only twenty bullets. Three bullets were in the rifle and seventeen bullets were in the ammunition box, making the murder bullet one bullet too many. Furthermore, as pointed out at trial, Winchester purchases its lead in billet form and, thus only remelts lead shavings and scraps at its manufacturing plant. The significance of that fact is that Winchester's furnace has only a 15,000-pound capacity whereas some smelters have crucibles with up to 200,000-pound capacities. Thus, literally millions more bullets could have the same "source" if they were last melted by a secondary smelter instead of by Winchester. That, of course, affects only the weight of Lundy's evidence, not its scientific reliability.
Appellant's expert, William Tobin, admitted that ICP is a scientifically accepted method of determining the percentages of trace elements in lead bullets, thus eliminating that element from the Daubert analysis. However, Tobin disagreed with Lundy's reasoning that a finding that any two bullets were analytically indistinguishable was "consistent with" their having the same source, i.e., being traceable to the same "last melt." (Lundy never opined that the analytically indistinguishable bullets did originate from the same source.) Relying on data obtained from secondary smelters, Tobin described instances where the trace elements were not homogeneous, e.g., where the percentage of antimony would be different on one side of an ingot than on the other. In fact, Lundy never claimed that the trace element percentages will always be homogeneous, i.e., the same throughout a particular batch of molten lead. Of course, if the trace element percentages in a particular batch are not homogeneous, bullets manufactured from that batch would not be analytically indistinguishable, thus would not be "consistent with" the two bullets having the same source even though they, in fact, did have the same source. That fact, of course, would redound to the benefit of the accused.
Tobin also described "piggybacking," i.e., filling a mold with molten lead partially from one crucible and partially from another crucible. However, if that occurred and a homogeneous mixture did not result, the bullets again would not be analytically indistinguishable, a result again redounding to the benefit of the accused. It is only when the bullets are analytically indistinguishable that evidence from a comparison bullet lead analysis attains relevancy. Finally, Tobin described several instances when manufacturers have reported identical percentages of impurities from two separate "pours." He did not speculate on the mathematical probabilities of such an occurrence.
The test of admissibility is not whether a particular scientific opinion has the best foundation or whether it is demonstrably correct. Rather, the test is whether the particular opinion is based on valid reasoning and reliable methodology. The analysis of the conclusions themselves is for the trier of fact when the expert is subjected to cross-examination.
Oddi v. Ford Motor Co., 234 F.3d 136, 146 (3d Cir. 2000) (internal quotations and citations omitted). Again, Lundy did not testify that the bullets must have come from the same batch of molten lead but only that their metallurgical composition was consistent with having come from the same batch. Tobin's testimony tended only to prove that it was possible that the analytically indistinguishable bullets did not come from the same batch.
Other jurisdictions have admitted similar evidence of comparative bullet lead analysis. E.g., United States v. Davis, 103 F.3d 660, 673-74 (8th Cir. 1996); Commonwealth v. Dave, 587 N.E.2d 194, 207 (Mass. 1992); State v. Noel, 723 A.2d 602, 605-06 (N.J. 1999); State v. Krumacher, 523 P.2d 1009, 1017 (Or. 1974). Lundy testified that the analysis has been subjected to peer review in a number of scientific journals. We conclude that there was substantial evidence to support the trial court's finding that the methodology used to determine the metallurgical composition of lead bullets and Lundy's reasoning that the fact that two or more bullets have an analytically indistinguishable metallurgical composition is consistent with their having come from the same source were both scientifically reliable. Whether Lundy's evidence would assist the trier of fact was a closer call, given that literally millions of bullets could come from the same source. Nevertheless, because that fact goes more to weight of the evidence than to its relevance, Noel, 723 A.2d at 605 ("the production of a large quantity of comparative samples affects the weight, not the admissibility of the evidence"), we conclude that the trial court did not abuse its discretion in determining that the evidence would assist the trier of fact in determining whether Appellant fired the shot that killed DiGiuro.
2. False testimony.
Lundy testified at the Daubert hearing that Winchester purchased its lead in block form prior to 1996, then remelted it at its manufacturing plant, a fact that would substantially reduce the number of possible bullets traceable to a particular "last melt." At trial, however, Paul Szabo testified that Winchester purchased blocks of lead only for use in manufacturing shotgun shells and purchased lead only in billet form for manufacturing bullets. Thus, Winchester only remelted the lead waste produced by the extrusion, chopping and swaging processes at its manufacturing plant. During cross-examination, Lundy admitted that her testimony at the Daubert hearing was mistaken and that she knew prior to the Daubert hearing that Winchester purchased its bullet lead in billet form in 1994. Her only explanation for the mistake was that she had misunderstood the question that was asked at the Daubert hearing.
After his conviction, Appellant moved for a new trial on grounds that the Daubert ruling had been procured by perjured testimony. The trial judge overruled the motion, concluding that his ruling on the admissibility of evidence of comparative bullet lead analysis would have been the same even if he had known that the analytically indistinguishable bullets had likely been last melted at a smelter rather than at the Winchester plant. As noted supra, whether the lead was melted at a smelter or at the manufacturer's plant only affected the possible number of bullets traceable to the same "melt," not the scientific reliability of comparative bullet lead analysis. In other words, it affected only the weight to be given to the inference created as a result of the analysis. Since the trial court found that the evidence would assist the trier of fact regardless of where the lead was last melted, the false testimony was harmless with respect to the Daubert ruling. Further, Appellant was aware of the error and able to employ it to impeach Lundy's credibility during cross-examination at trial.
Accordingly, Appellant's conviction and the sentence imposed therefor are reversed and this case is remanded to the Fayette Circuit Court for a new trial.
LAMBERT, C.J.; JOHNSTONE, and STUMBO, JJ., concur.
KELLER, J., dissents by separate opinion, with GRAVES, and WINTERSHEIMER, JJ., joining that dissenting opinion.
I dissent from the majority opinion and write separately as to Part I to express my view that, even if we construed the Commonwealth's statement that "[t]he only person who knows where that shot was fired from exactly is the person sitting in that chair over there and he hasn't seen fit to tell us" as a violation of Appellant's rights under the Fifth Amendment's compelled-self-incrimination clause, neither the statement itself nor the trial court's failure to admonish the jury regarding it would warrant reversal of Appellant's Murder conviction. In my opinion, the twenty-nine words in dispute, which were uttered during the Commonwealth's two hour and twenty-two minute summation of the persuasive case against Appellant that had been presented over the previous two weeks, had no effect upon the jury's verdict. Stated differently, the jury would have found Appellant guilty of Murder even if the Assistant Commonwealth's Attorney had never spoken these words. Because there is no "reasonable possibility that the [comment] might have contributed to the conviction," any error in connection with the prosecutor's statement was harmless beyond a reasonable doubt.
U.S. CONST. amend. V ("No person . . . shall be compelled in any criminal case to be a witness against himself[.]"); see also KY. CONST. § 11 ("[The accused] cannot be compelled to give evidence against himself[.]"); Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106, 110 (1965) ("We . . . hold that the Fifth Amendment . . . in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt.").
Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705, 710 (1967) ( citing Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963)).
Chapman, 386 U.S. at 24, 17 L.Ed.2d at 711; see also United States v. Hastin, 461 U.S. 499, 510-511, 103 S.Ct. 1974, 76 L.Ed.2d 96, 107 (1983).
Before elaborating further upon that view, however, I wish to emphasize that, although the Assistant Commonwealth's Attorney's statement might be viewed as "teeter[ing] on the fine line between impermissible comment on the defendant[']s failure to testify and a permissible comment on the lack of evidence[,]" I believe that the remark by the prosecutor was not a comment on the failure of Ragland to testify. "Not every comment that refers or alludes to a nontestifying defendant is an impermissible comment on his failure to testify" and not every comment upon silence will run afoul of Griffin. Historically, courts drew distinctions between "direct" comments upon a defendant's failure to testify, which were usually held to be improper and prejudicial, and "indirect" comments, which were usually found not to warrant reversal. Now, however, "a less formalistic rule" governs such inquiries, and it is generally accepted that a comment violates a defendant's constitutional privilege against compulsory self-incrimination only when it was manifestly intended to be, or was of such character that the jury would necessarily take it to be, a comment upon the defendant's failure to testify that invited it to draw an adverse inference of guilt from that failure.
United States v. Rahseparian, 231 F.3d 1267, 1274 (10th Cir. 2000).
Loggins v. State, 771 So.2d 1093, 1101 (Ala. 2000).
See United States v. Robinson, 485 U.S. 25, 33-34, 108 S.Ct. 864, 99 L.Ed.2d 23, 32 (1988) ("The broad dicta in Griffin to the effect that the Fifth Amendment `forbids . . . comment by the prosecution on the accused's silence,' must be taken in the light of the facts of that case. It is one thing to hold, as we did in Griffin, that the prosecutor may not treat a defendant's exercise of his right to remain silent at trial as substantive evidence of guilt; it is quite another to urge, as defendant does here, that the same reasoning would prohibit the prosecutor from fairly responding to an argument of the defendant by adverting to that silence." (citation omitted)); cf. Dillard v. Commonwealth, Ky., 995 S.W.2d 366, 374 (1999) ("But not every reference to a defendant's failure to testify constitutes reversible error."); Childers v. Commonwealth, 246 Ky. 751, 56 S.W.2d 352, 354 (1933) ("[N]ot every case will be reversed where the commonwealth's attorney in his argument comments on the defendant's failure to testify.")
For an excellent discussion of this historical development of the law in this area, see Moore v. State, 669 N.E.2d 733 (Ind. 1996). "A direct reference to an accused's failure to testify is made when the prosecutor uses words such as `defendant,' `accused' and `testify' or their equivalent. An indirect reference is one reasonably apt to direct the jury's attention to the defendant's failure to testify." State v. Neff, 978 S.W.2d 341, 344 (Mo. 1998) (citations omitted).
Moore, 669 N.E.2d at 737.
Knowles v. United States, 224 F.2d 168, 170 (10th Cir. 1955) ("[T]he test is whether the language used [by the prosecutor] was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify."); Butler v. Rose, 686 F.2d 1163, 1170 n. 6 (6th Cir. 1982) (describing "universal application of Knowles's articulation); Byrd v. Commonwealth, Ky., 825 S.W.2d 272, 275 (1992) ("A prosecutor's comment on the failure of a defendant to testify must be manifestly intended to reflect on the accused's silence or of such a character that the jury would naturally and prejudicially take it as such to constitute prejudice." (citing Bagby v. Sowders, 894 F.2d 792 (6th Cir. 1990))). Prior to Griffin, Kentucky courts applied similar principles in connection with claims that the prosecution indirectly violated Kentucky statutory law by referring to a defendant's failure to testify. Anderson v. Commonwealth, Ky., 353 S.W.2d 381, 386 (1961) ("These comments fall into the class of indirect references, which are not considered prejudicial unless they are reasonably certain to direct the jury's attention to the defendant's failure to testify."); Neal v. Commonwealth, 302 S.W.2d 573, 577 (1956) ("The test, as concerns indirect comments, is whether the comment is reasonably certain to direct the jury's attention to the defendant's failure to testify."); Miller v. Commonwealth, 182 Ky. 438, 206 S.W. 630, 632-33 (1918) (describing the "determining factor" as to whether an indirect reference to the defendant's failure to testify is reversible error as "whether the indirect reference was such as was reasonably liable to have directed the jury's attention to the failure of the defendant to testify, or was so remote as not reasonably liable to have such effect.")
See Robinson, 485 U.S. at 33-34, 99 L.Ed.2d at 32; Moore, 669 N.E.2d at 739 ("The Fifth Amendment privilege against compulsory self-incrimination is violated when a prosecutor makes a statement that is subject to reasonable interpretation by a jury as an invitation to draw an adverse inference from a defendant's silence."); State v. Clark, 292 S.E.2d 643, 648 (W.Va. 1982).
In this case, the Assistant Commonwealth's Attorney said nothing that even resembled a request that the jury should infer guilt from the fact that Appellant failed to take the witness stand and assert his innocence. Accordingly, it is only in the most remote sense that the statement could be characterized as comment upon Appellant's failure to testify at trial. Instead, when considered in context, the statement at issue constituted a concession about and an explanation for uncertainty as to one aspect of the Commonwealth's theory of the case. It was made in response to defense counsel's closing argument, which raised questions about the location from which the fatal shot was fired in an attempt to lend credence to the defense's unevidenced alternative hypotheses regarding the identity of the perpetrator. The location "issue," however, was not a significant component of the Commonwealth's case, and the Commonwealth's evidence and theory of the case identified the disputed site only as a possible location (1) from which the shot could have been fired, i.e., a location that was consistent with the physical evidence in the case, and (2) that corresponded to Appellant's own "theory" of how the crime had been committed, which he had described to his then-girlfriend shortly after the murder was committed.
According to the woman's trial testimony, while she and Appellant were driving along Woodland Avenue in Appellant's vehicle, Appellant pointed out the corner of Columbia and Woodland Avenues as the location from which he believed the fatal shot had been fired, and told her that he believed that the murderer fired the shot using a rifle stand while lying on the ground, concealed a weapon in a bag, used a bicycle for a quick getaway, and sneaked between houses to avoid detection.
During Appellant's closing argument, defense counsel attempted to characterize Appellant's prior statements about the shooting as "speculation" and unfounded boasting rather than confessions and observed that the investigating officers and the Commonwealth itself had engaged in similar speculation concerning the location from which the shot was fired:
They don't know the location of the shot. . . . They don't know where the shot was fired from. They picked out five locations that they thought might be best, but they're just speculating. They don't know where this shot was fired from.
The Assistant Commonwealth's Attorney responded to the defense argument by conceding that the Commonwealth was unable to pinpoint the location with certainty, but clarified that the "where was the shot fired from?" issue was largely a red herring:
Now, I want to be clear about what we're saying about that because this is — this is really something that's I think been blown out of proportion or misleading. And, I'm not backing off of anything we've ever said in this case when I say this. We're not saying that the shot was fired from underneath that bush. You've never heard us say the shot was fired from underneath that bush. What we're saying to you is that is a place the shot could have been fired from. It's a place that has a line of sight to the porch. It happens to be a place that lines up very well with the idea that [the victim] is sitting in this chair kind of angled to the center or maybe looking over at his friends and gets shot straight across. So, it matches that very well. And it's a place where it has these two marks on the ground. But we're not saying that's where it's fired from. We don't know where it's fired from. The only person who knows where that shot was fired from exactly is the person sitting in that chair over there, and he hasn't seen fit to tell US.
Appellant argues that the prosecutor's use of the first-person plural indicated that his statement referred to Appellant's failure to speak to an "us" that included the jury, i.e., a direct comment on Appellant's failure to testify. Earlier in his closing argument, however, the Assistant Commonwealth's Attorney explained that he utilized the term "us" to refer to the parties involved in the prosecution, "[i]t's taken us — and by `us' I mean the police and I mean the Commonwealth of Kentucky — almost eight years now to bring this case to this point." (emphasis added).
Appellant argues that the prosecutor's use of the first-person plural indicated that his statement referred to Appellant's failure to speak to an "us" that included the jury, i.e., a direct comment on Appellant's failure to testify. Earlier in his closing argument, however, the Assistant Commonwealth's Attorney explained that he utilized the term "us" to refer to the parties involved in the prosecution, "[i]t's taken us — and by `us' I mean the police and I mean the Commonwealth of Kentucky — almost eight years now to bring this case to this point." (emphasis added).
When Appellant objected and moved for a mistrial, the Assistant Commonwealth's Attorney immediately and convincingly responded that he had not made or intended to make any comment upon Appellant's failure to testify. The trial court then permitted the prosecuting attorney to contextualize his earlier statement further:
What I'm talking about, ladies and gentlemen, is that the defendant talked to the police about this case and they asked him about it and he didn't say "You know, I shot it from over here." That's what I'm talking about. He didn't say anything about that.
Although the majority is correct in their observation that, during his interview on July 14, 2000 "the police never asked Appellant about the location from which the shot was fired[,]" Slip Op. at 6, the Assistant Commonwealth's Attorney did not declare during his clarification that Appellant had been questioned specifically regarding the location of the fatal shot. The antecedent for the "it" referred to in the Assistant Commonwealth Attorney's clarifying comment that "they asked him about it" is "this case," about which the officers certainly did question Appellant. As such, I disagree with the majority's conclusion that the Assistant Commonwealth Attorney's explanation of his statement had "no basis," id., and with its description of the interview as "focused largely on whether Appellant told Aimee Lloyd that he had killed DiGiuro." Id. Although this might be an accurate description of the first portion of the interview, the character of the interview changed substantially after Appellant was confronted with the audiotape of his conversation with Ms. Lloyd. In fact, defense counsel argued during his closing argument that the officers were attempting to solicit a confession during this interview and referenced statements from Sergeant Barnard and Detective Evans in support of that claim, e.g., "[i]f you ever want to get over what all this stuff you're going through, if you ever want to start new, you're going to have to come forward. You're going to have to tell the truth about things." In addition, Detective Evans unquestionably gave Appellant an opportunity to explain why and how he had committed this crime when he stated, "what we're doing right now is [to] make you understand that we know what happened. We know you did this and give you the opportunity to explain it. . . . there are reasons for it, and it's the same reason you haven't been able to live with yourself all this time and you've got the opportunity. . . . . . In my opinion, the record supports the Assistant Commonwealth Attorney's clarification of what he intended by his statement that Appellant "hasn't seen fit to tell us" the fatal shot's point of origin.
Although the majority is correct in their observation that, during his interview on July 14, 2000 "the police never asked Appellant about the location from which the shot was fired[,]" Slip Op. at 6, the Assistant Commonwealth's Attorney did not declare during his clarification that Appellant had been questioned specifically regarding the location of the fatal shot. The antecedent for the "it" referred to in the Assistant Commonwealth Attorney's clarifying comment that "they asked him about it" is "this case," about which the officers certainly did question Appellant. As such, I disagree with the majority's conclusion that the Assistant Commonwealth Attorney's explanation of his statement had "no basis," id., and with its description of the interview as "focused largely on whether Appellant told Aimee Lloyd that he had killed DiGiuro." Id. Although this might be an accurate description of the first portion of the interview, the character of the interview changed substantially after Appellant was confronted with the audiotape of his conversation with Ms. Lloyd. In fact, defense counsel argued during his closing argument that the officers were attempting to solicit a confession during this interview and referenced statements from Sergeant Barnard and Detective Evans in support of that claim, e.g., "[i]f you ever want to get over what all this stuff you're going through, if you ever want to start new, you're going to have to come forward. You're going to have to tell the truth about things." In addition, Detective Evans unquestionably gave Appellant an opportunity to explain why and how he had committed this crime when he stated, "what we're doing right now is [to] make you understand that we know what happened. We know you did this and give you the opportunity to explain it. . . . there are reasons for it, and it's the same reason you haven't been able to live with yourself all this time and you've got the opportunity. . . . . . In my opinion, the record supports the Assistant Commonwealth Attorney's clarification of what he intended by his statement that Appellant "hasn't seen fit to tell us" the fatal shot's point of origin.
"[P]rosecutorial comment must be examined in context[,]" and, if there is another, equally-plausible explanation for a statement, malice will not be presumed and the statement will not be construed as comment on the defendant's failure to testify. The context of the statement at issue here — and specifically, the fact that it was in response to defense argument — is critical to its interpretation. Here, "[i]n context, the prosecutor's comments were but a small part of a summary of the evidence best understood as conceding the ambiguities therein and were unlikely to be interpreted as comments on [Appellant's] failure to testify." As such, the statement at issue did not violate Appellant's constitutional protections against compelled self-incrimination.
Robinson, 485 U.S. at 33, 99 L.Ed.2d 23 at 31; see also Williams v. Commonwealth, Ky., 464 S.W.2d 244, 249 (1971); Neff, 978 S.W.2d at 345 ("When considering a defendant's claim of an improper comment on his right to remain silent, the appellate court must also consider the comment in the context in which it appears.")
State v. Ball, 675 N.W.2d 192, 200 (S.D. 2004) ("A prosecutor's intent is not `manifest' if there is an equally plausible explanation for the prosecutor's remarks." (citing United States v. Collins, 972 F.2d 1385, 1406 (5th Cir. 1992))); Ranger v. State, 290 S.E.2d 63 (Ga. 1982).
See Robinson, 485 U.S. at 33-34, 99 L.Ed.2d at 32; Montgomery v. Commonwealth, Ky., 346 S.W.2d 479, 482 (1961) ("It seems to us apparent that when the questionable statements of the prosecuting attorney, with their attendant circumstances, are considered, they were provoked by and made in response to previous statements of the defendant's attorney before the jury."); Brooks v. Commonwealth, 218 Ky. 415, 136 S.W.2d 552, 553 (1940) ("[H]e has a right to answer any argument made by defendant's attorney."); Rogers v. Commonwealth, 161 Ky. 754, 171 S.W. 465, 467 (1914); cf. Thompson v. Commonwealth, Ky., 477 S.W.2d 802 1972) (comments about defendant's right to testify if he wished made in response to defendant's outbursts during examination of other witnesses).
Wellons v. State, 463 S.E.2d 868, 879 (Ga. 1995) (finding no prosecutorial misconduct in the prosecutor's culpability-phase closing argument statements that "only two people know what went on in that apartment" and "there's only two people who can tell us how long that horror lasted."); see also Bowling v. Commonwealth, Ky., 873 S.W.2d 175,178 (1993):
During closing arguments of the guilt phase, the prosecution was discussing potential motive. It was stated, "We can't tell you what it is because only the man who pulled the trigger knows." Bowling claims this was a Fifth Amendment violation and interprets it as a comment on his refusal to testify. . . . Given the totality of the prosecution's closing argument, the statement, if indeed it was improper, was merely an inadvertent reference. It was not manifestly intended to reflect on the accused's silence or of such a character that the jury would naturally and necessarily take it as such.
Even if the Assistant Commonwealth's Attorney's comments were construed as an impermissible comment upon Appellant's failure to testify, however, the United States Supreme Court has made it clear that a court may affirm a conviction despite a violation of the defendant's Fifth Amendment rights if it can "declare a belief that [the comment] was harmless beyond a reasonable doubt. In fact, prior to Chapman, our predecessor applied a similar prejudicial-error review to such comments. "Although a reviewing court must consider a counterfactual question — whether the jury would have convicted the defendant absent the comment — courts have developed a number of methods for determining an answer." While different jurisdictions articulate the harmless error analysis in different ways, courts analyze the probability that an improper comment altered the jury's verdict generally by examining three factors: (1) the nature and persuasiveness of the comment itself; (2) the relative strength of the prosecution's case; and (3) the effectiveness of the trial court's response to the comment.
Chapman, 386 U.S. at 24, 17 L.Ed.2d at 711; see also Dillard, 995 S.W.2d at 374 ("Thus, the effect of the comment with respect to his failure to testify was harmless beyond a reasonable doubt."); Haynes v. Commonwealth, Ky., 657 S.W.2d 948, 953 (1983) ("This court is convinced, considering the overwhelming evidence against the appellant, the comments by the prosecutor were at the most, harmless error and did not contribute to the appellant's conviction." (citing Chapman)); Tinsley v. Commonwealth, Ky., 495 S.W.2d 776, 782 (1983) ("We believe in view of the entire record these inferential comments constituted harmless error beyond a reasonable doubt." (citing Chapman)); Caldwell v. Commonwealth, Ky., 503 S.W.2d 485, 494 (1972) ("The comments of the Commonwealth's attorney were perilously close to a violation of the constitutional and statutory safeguards against self-incrimination, but considering the overwhelming evidence we are convinced beyond any reasonable doubt that this particular argument was of negligible and nonprejudicial import."); cf. James v. Commonwealth, Ky., 679 S.W.2d 238 (1984) (applying harmless error beyond a reasonable doubt standard to trial court's failure to give "no adverse inference" instruction); Commonwealth v. McIntosh, Ky., 646 S.W.2d 43 (1983) (same).
See Childers, 56 S.W.2d at 353-54; Sebree v. Commonwealth, 200 Ky. 534, 255 S.W. 143, 145-46 (1923); McDonald v. Commonwealth, 177 Ky. 224, 197 S.W. 665, 668 (1917) ("[T]he facts developed by the prosecution point so unerringly in the guilt of the defendant that we have no doubt that the same verdict would have been returned by the jury had no reference of any kind been made by counsel to the fact that the defendant did not testify in his own behalf.").
Moore, 669 N.E.2d at 739-40.
Baxter v. State, 723 So.2d 810, 815-18 (Ala.Crim.App. 1998) (collecting cases).
In assessing the nature and persuasiveness of the comment itself, courts examine a number of variables to assess the severity of the misconduct, including: (1) whether the prosecution intentionally and directly commented upon the defendant's failure to testify; (2) the extent to which the prosecution emphasized the statement through repetition or otherwise; and (3) the extent, if any, to which the comment solicited an inference of guilt or otherwise addressed itself to a defendant's "exculpatory story." For reasons explained in more depth above, the prosecutor's statement in this case was unlikely to have had any effect upon the jury's deliberations. At worst, the Commonwealth's brief and isolated comment could be construed as an indirect comment upon Appellant's failure to take the stand, but in context, and in light of the Assistant Commonwealth's Attorney's immediate clarification, the statement carried no such implication and certainly did not suggest that the jury should draw an inference of guilt from Appellant's failure to testify.
Moore, 669 N.E.2d at 740 ("Remarks directly referring to a defendant's silence are also more prejudicial than indirect references."); Gray v. Commonwealth, 195 Ky. 307, 242 S.W. 8, 9 (1922) (stating that "there could hardly be a more flagrant violation" than where the prosecuting attorney "repeatedly referred directly to the failure of the defendant to testify in the case."); Roberson v. State, 100 S.W.3d 36, 42 (Tex.Crim.App. 2002) ("The prejudicial effect of a direct comment on the accused's failure to testify may be more difficult to cure than that arising from an indirect comment on his failure to testify.").
Baxter, 723 So.2d at 815 ("The court should also consider whether the remarks were lengthy and repeated or whether they were single and isolated."); Id. at 818 ("[T]he prosecutor's remark was a singular incident and was clearly inadvertent." (emphasis added)); Moore, 669 N.E.2d at 740 ("[E]xtensive or repetitive comments are generally more serious than a single, isolated statement."); Dillard, 995 S.W.2d at 374 (describing comments found harmless as "brief and isolated"); Colbert v. Commonwealth, Ky., 306 S.W.2d 825, 829 (1957) ("[R]epeated comments of this or a like nature, calculated when taken together and in sequence to call attention to the defendant's failure to testify have been held prejudicial."); Gray, 242 S.W. at 9; Neff, 978 S.W.2d at 347 ("[T]he prosecutor's comment is isolated[.]"); Ball, 675 N.W.2d at 203 ("[T]he comments were not a single reference to Ball's earlier statements . . . The comments were also not benign or a `slip of the tongue.' They were extensive and repetitive comments that were more serious than a single isolated statement. (citations omitted)); Roberson, 100 S.W.3d at 42 (examining the prosecutor's "persistence and flagrancy").
Anderson v. Nelson, 390 U.S. 523, 523-24, 88 S.Ct. 1133, 20 L.Ed.2d 81, 83 (1968); Moore, 669 N.E.2d at 740 ("Obviously, statements that implore jurors to infer guilt from silence are the greatest threat."); Clark, 292 S.E.2d at 648 ("The prosecutor was neither attempting to challenge the defendant into taking the stand nor seeking to penalize him for his failure to do so. . . . We find nothing in the prosecutor's remarks which could even obliquely suggest that the jury should draw an adverse inference of guilt because the defendant exercised his constitutional right to testify."); Ball, 675 N.W.2d at 203 ("This type of request of jurors to infer guilt from silence is the most improper.")
State v. Pickens, 466 S.E.2d 364, 366 (S.C. 1996).
Although perhaps not "overwhelming," the Commonwealth's case against Appellant was a compelling one that, when examined relative to the alleged misconduct, eclipses any plausible claim of prejudice. The Commonwealth not only established Appellant's motive for the crime, but also demonstrated that Appellant, who lived a stone's throw away from where the victim was killed and possessed a rifle that the Commonwealth's experts testified could have fired the fatal shot, had the means and opportunity to commit it. The Commonwealth's case contained more than circumstantial evidence, however, and the jury also heard testimony that Appellant admitted on more than one occasion to committing this crime. While the evidence might not have compelled a finding of guilt to the point where I could label the jury's verdict as "inevitable," the Commonwealth's case was sufficiently commanding that a single brief comment made two hours before the jury began its deliberations was without consequence to the verdict.
Although the trial court denied the admonition that Appellant requested, it responded to Appellant's concerns by permitting the Assistant Commonwealth's Attorney to explain the statement in a manner that eliminated any potential uncertainty and clearly distinguished it from a comment on Appellant's failure to take the witness stand. It is also significant that the trial court's jury instructions, which were read and provided to the jury on the same morning that the allegedly improper statement was made, stated: "The Defendant is not compelled to testify, and the fact that the Defendant did not testify in this case cannot be used as an inference of guilt and should not prejudice him in any way." Several decades ago, our predecessor recognized that juries have the ability to contextualize "heat of battle" comments made by counsel and to decide cases pursuant to the trial court's instructions:
See Rahseparian, 231 F.3d at 1276; Dillard 995 S.W.2d at 274 (observing, as part of its harmless error review, that "[t]he jury had been instructed as to Appellant's constitutional right not to testify.").
We cannot believe, however, that every digression of a commonwealth attorney from the strict line of professional and official requirement, though occurring in the presence of the jury, can be treated as necessarily prejudicial to the rights of the accused. We must assume that a jury is composed of that class of men described in the statute as being "citizens of fair character, approved integrity, and well-informed." Such a jury cannot be reasonably expected to forget the solemn and important duty imposed by their position, and to disregard their oaths, and the explicit admonitions of the law contained in the instructions and render their verdicts based upon fugitive and unsupported statements of the prosecuting attorney. The jury must know that he, as others in the zeal of his cause and in the ardor of the prosecution, may be borne on the rule of a moment beyond a position fully warranted by the situation, and they will make allowance accordingly.
Sebree, 255 S.W. at 146 (emphasis added) (quoting an earlier, "not to be officially reported" case, Strutton v. Commonwealth, Ky., 62 S.W. 875, 876 (1901), in which a comment on silence was found not to constitute reversible error).
Sebree, 255 S.W. at 146 (emphasis added) (quoting an earlier, "not to be officially reported" case, Strutton v. Commonwealth, Ky., 62 S.W. 875, 876 (1901), in which a comment on silence was found not to constitute reversible error).
I agree wholeheartedly with this faith in a jury's ability to "see the forest for the trees," i.e., to discern the fundamental point of an argument that has been articulated in a somewhat-overly-dramatic manner. And, I have no reasonable doubt that they did so in this case.
CONCLUSION
I dispute that the Assistant Commonwealth's Attorney crossed the line and invited the jury to draw an adverse inference of guilt from Appellant's failure to testify. Despite the spin placed by the majority opinion on the twenty-nine words uttered by the Assistant Commonwealth's Attorney, that just did not happen — his words speak for themselves. Regardless, after considering the statement itself and the prosecuting attorney's subsequent clarification in context and alongside the strength of the Commonwealth's case and the trial court's jury instructions, I am convinced that any error committed in this case was harmless beyond a reasonable doubt. Accordingly, I would affirm Appellant's conviction.
GRAVES and WINTERSHEIMER, JJ., join this dissenting opinion.