RODNEY T. BIXLER V. COMMONWEALTH OF KENTUCKY
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RODNEY T. BIXLER
V.
APPELLANT
APPEAL FROM SHELBY CIRCUIT COURT
HON. WILLIAM F. STEWART, JUDGE
NO. 2001-CR-00110
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE ROACH
AFFIRMING
Appellant, Rodney T. Bixler, was convicted of murder and theft by unlawful taking
over $300. On appeal, he raises only two claims of error: (1) that the trial court erred by
allowing the prosecution to question him about, and comment during argument on, his
wife's failure to testify for him; and (2) that the prosecutor repeatedly misstated the
evidence during closing argument. Finding no merit in these claims, we affirm.
1. Background
On October 21, 2000, Appellant went to a bar in Lawrenceburg, Kentucky with
several people, including a woman named Daisy Whitaker . The group left the bar
around midnight to go to a party at a private residence . At the party, Appellant and
Whitaker talked and danced together. Some time later, Appellant and Whitaker left the
party together in Whitaker's car. Two other people-Roberta Ragland and Mitchell
Cunningham-left the party at the same time . Ragland and Cunningham followed
Whitaker's car for a short time until it turned toward Whitaker's house. Neither
Cunningham nor Ragland saw the other couple arrive at Whitaker's house.
Early the next morning, Whitaker's car was found abandoned near an apartment
complex in Lexington, which is about a thirty-five to forty-minute drive from
Lawrenceburg . The police officer who found the car recalled having first seen it at
approximately 4:00 a.m. A small crowd was gathered around the car, but the crowd
quickly dispersed when the officer drove up. When he approached the car, he noticed
that its windows were down and the keys were still in the ignition. The officer checked
the glove box and found the bill of sale, which showed the name and address of the
owner. He then reported the car to the Lawrenceburg Police Department and had the
car towed to an impound lot. At approximately 7:00 a.m., Officer Greg Boblitt and
another officer of the Lawrenceburg Police Department went to Whitaker's residence to
check on her in response to the report about her car having been abandoned . No lights
were on and the doors were locked . No one answered the door, so the officers
assumed no one was home and left.
Amanda Hayes, Whitaker's granddaughter, also lived in the house, but she was
not home when the police visited early that morning . Hayes returned home
approximately four hours after the police visit . She found Whitaker dead and called 911 .
Officer Boblitt returned to the scene, where he found the body naked and lying
face-down in the bathtub . The County Coroner pronounced the victim dead at the
scene and attended the autopsy performed by the medical examiner the next day.
From the autopsy, the medical examiner found that Whitaker had died of asphyxia from
strangulation or suffocation . She also found that Whitaker had bruises and abrasions
on her neck, eyes, mouth, shoulders, arms, feet, torso, and left knee.
Appellant claimed he learned of Whitaker's death a couple of days later. He
contacted the police, claiming he had information about the night of Whitaker's death .
He called one of Whitaker's relatives and expressed sorrow over her death . On
October 24, 2000, he gave a statement to the police in which he admitted having been
with Whitaker the night she died and having visited her residence . He claimed that at
approximately 2 :00 a .m . on October 22, 2000, after leaving the party at the private
residence, he and Whitaker had gone to her house and had consensual sex. He
claimed that Whitaker had wanted him to spend the night, but that he had wanted to go
home, so she drove him to his wife's house. He got out of the car and watched
Whitaker drive away, claiming that was the last time he saw her. He noticed that his cell
phone was missing, so he walked a short distance to his parent's house to call his wife.
He then walked back to his wife's house, where he changed his five-month old son's
diaper and fell asleep across the foot of his wife's bed.
Appellant also claimed during the interview with the police that he met Whitaker
on another occasion several weeks before her death, that he had gone home with her
then, and that he knew of Whitaker through his father, who had been 'with" the victim,
implying that they had been in a sexual relationship .
Despite Appellant's claim that he last saw Whitaker alive and well, the
investigation quickly focused on him . Two pubic hairs recovered from the victim's carone from a fitted bed sheet found in the car and one from the door jamb-were similar
to Appellant's hair. DNA testing of the hair found in the door jamb indicated it came
from Appellant . More hair, along with blood and semen stains, was found on bed
sheets in Whitaker's home, though this hair did not match Appellant's, and DNA testing
indicated that the blood and semen on the sheets did not match Appellant . No blood
was found on the shoes and clothing collected from Appellant during the investigation .
DNA testing of semen from a vaginal swab of the victim indicated that it matched
Appellant . A pillow with blood on it was found in the victim's car. Two pairs of panties
were found in the bathroom near the victim's body. These garments were turned over
to the forensics lab, which did not test them . Fingernail clippings were taken from the
victim, but they were never tested because no scratches had been found on Appellant
(or any other suspect) .
Prior to trial, Officer Mike Schell, the police officer leading the investigation
interviewed Appellant's wife, Stephanie Bixler. At trial, Officer Schell testified that Ms.
Bixler had given him a statement in which she claimed her husband had come home in
the early morning hours of October 22, 2000. Appellant's attorney did not object to this
testimony. In fact, on cross-examination, Appellant's attorney questioned the officer
further about Ms. Bixler's statement. Officer Schell again stated he had taken a
statement from Ms. Bixler and that she claimed her husband came to her house early in
the morning on October 22, 2000. Officer Schell also testified about his interview with
Appellant.
Several other witnesses, including Roberta Ragland and Mitchell Cunningham,
testified as to the events the night of Whitaker's death, including the activities at the bar
and the party at the private residence . Ragland also testified that the victim had had
several Hispanic boyfriends. She stated while she had never seen any of these
boyfriends hurt the victim, in the early summer of 2000, she had seen the victim with
bruises. She had also heard that the victim had fought with one of her boyfriends and
that one of the victim's boyfriends had forced her to drive to Lexington and caused her
to wreck her car. She also testified that in 2000, some of the victim's neighbors had
threatened to burn down the victim's house.
The Lexington police officer testified at trial about finding the victim's car in
Lexington.
Two women, Ashley White and Vickie Warren, testified that in the early morning
of Sunday, October 22, 2000, they saw Appellant in Lexington in the area where the
victim's car was found abandoned . Both women admitted to being convicted felons and
to having used drugs that night. White testified that she actually saw Appellant two
times, once at approximately 9:30 to 10:00 p.m. on Saturday night and again at
approximately 7 :00 am on Sunday morning. She stated that Appellant was in a green
sedan, that she had at one point been in the car with Appellant and several other people,
and that Appellant told her there was $500 in cash and eight ounces of crack cocaine in
the car. Prior to trial, White picked Appellant's picture out of a photographic line-up.
She testified at trial that she was familiar with Appellant because he had dated her
cousin .
Warren's testimony contradicted White's testimony in some respects . She stated
that she was with Ashley White and another friend at a crack house in the early morning
of October 22, 2000. She claimed that Appellant approached them at around 4:00 a.m.
and asked for a ride to his car. They drove Appellant in a white car to the parking lot
where he claimed to have left his car, but it was missing. They then returned to the
crack house, and Warren left soon thereafter. Warren admitted that she was a
prostitute and a "crackhead" at the time .
The Commonwealth also presented the testimony of Thomas Ellison, who had
been in the Franklin County Jail with Appellant in December 2000 . Ellison testified that
Appellant discussed the murder of a woman in Lawrenceburg, claiming that Appellant
said that "he had been f---ing around with her," that "he killed the bitch," and that he had
been having marital problems. Ellison testified that Appellant specifically said, "I killed
the white bitch in Lawrenceburg . My daddy used to f--- her. She wasn't nothin' but poor
trash ." On cross-examination, Appellant's attorney asked Ellison if he had spoken with
another inmate while in the Franklin County Jail about concocting a story about
Appellant in order to get out of jail . Ellison denied doing so.
Bill Corn, a former co-worker of Appellant, testified about his contact with
Appellant after the murder. He stated that when he spoke with Appellant in the week
following the murder, Appellant claimed to have seen him driving on the Bluegrass
Parkway on the morning of October 22, 2000 . (The Bluegrass Parkway runs south of
Lawrenceburg to Lexington .) Corn remembered telling Appellant that this was
impossible because he had been in Illinois at the time. Corn also testified that he
overheard Appellant on the phone with his wife while at work. Corn claimed that
Appellant told his wife: "What are they doing there?" ; "You're not supposed to talk to
them." ; and, "Tell them you let me in the house and I just laid across the bed."
In response to Thomas Ellison's testimony, Appellant offered the testimony of
Charles Peffer, who had been in the Franklin County Jail with Ellison . Peffer testified
that while in jail, Ellison had tried to convince him to help fabricate a story about Bixler
so that they could get out of jail early or get a bond reduction .
Appellant also took the stand and testified in his own defense. He denied killing
the victim and stealing her car. He also denied being in Lexington on the night of
October 21, 2000 or the morning of October 22, 2000. He testified in conformity with his
prior statement to the police about the time he spent with the victim immediately prior to
her death and what he did after he claimed to have left her.
The jury convicted Appellant of murder and theft by unlawful taking over $300.
He was sentenced to twenty-five years for the murder and four years for the theft, to be
served consecutively for a total of twenty-nine years in prison . He appeals to this Court
as a matter of right. Ky. Const. § 110(2)(b).
II. Analysis
A. Spousal Testimony Privilege
Appellant claims that the Commonwealth's Attorney's repeated discussion of Ms.
Bixler's failure to testify amounted to improper commentary on the spousal testimony
privilege found in KRE 504(a). The spousal testimony privilege was discussed several
times during the trial.
The issue was first mentioned when Appellant testified . During crossexamination, the prosecutor asked Appellant about his claimed alibi, which had been
supported in part by the statement that his wife had made to the police. The exchange
between the prosecutor and Appellant began as follows:
Prosecutor :
And you told police that you got home at 2 :30 in the morning,
around 2 :30 in the morning?
Appellant :
I didn't tell him at 2 :30. I told him it might could have been, it
was a possibility. I couldn't swear to it.
Prosecutor :
And you told police when you went into your wife's house,
she was already there asleep?
Appellant:
Yes, sir.
Prosecutor: And then you told police you didn't leave again until the next
day, right?
Appellant :
Yes, sir.
Prosecutor:
So the only person that can testify your whereabouts is your
wife?
Appellant :
1 don't know, I don't know .
Prosecutor :
You don't know?
Appellant:
No.
Prosecutor:
Well, was anybody else in the bedroom with you?
Appellant :
No .
Prosecutor :
So, the only person who knows where you were after 2:30 in
the morning is your wife, right?
Appellant:
I don't really know. I don't know if-there's a possibility her
mother knew, it's a possibility that her father knew, it's a
possibility that her cousin that lives right across the street
knew. I can't say. 1 don't know .
Prosecutor:
But your wife knew you were there?
Appellant :
Yes, sir.
Prosecutor :
But she's not going to testify?
Appellant:
No, I don't think she is.
Prosecutor:
Isn't it true she's not going to testify because she doesn't
want to lie again like she did to the police?
Before Appellant could answer this question, his attorney (designated "Def. Atty."
below) asked to approach the bench . The judge replied, "You may." Appellant's
attorney and the two prosecutors moved to the bench for a bench conference out of the
hearing of the jury. They engaged in the following exchange :
Def. Atty. :
That's totally improper and Mr. Hoffman knows that.
Judge:
How do we know she lied, just curiously?
Prosecutor:
Because she wasn't there . Her cell phone records show that
she was out using her phone all night. She was not asleep
there at the house .
Judge:
But that's not in evidence .
Prosecutor:
No .
Def. Atty.:
First of all, we don't have any properly certified cell phone
records .
Judge:
I was going to say, that is not in evidence .
Prosecutor: Yes, we do.
Judge:
But they're not in evidence .
Prosecutor:
No, and I haven't mentioned them .
Judge:
Now, let's be careful here . I mean, all's I'm saying is how
can we characterize something to the jury that's a lie, that
hasn't been established?
Prosecutor:
I'll withdraw the question . I think it might be argumentative .
I'll go back-
Judge:
Well, that's just number one. I mean, all's I'm saying is it's
not, 1 mean, if it had been proven and established, 1 think
you could characterize it, but it's just totally out of the blue. I
mean, nobody's offered any of this stuff in evidence .
Prosecutor: Well, I think I might also go back, I mean part of our reason
for putting Bill Corn on was to show that he had dictated to
his wife what to tell the police and
Judge:
Well, if you've got that and he-
Def. Atty.
If that's your argument.
Judge:
Yeah, he attempted to explain it, but you're right. I didn't say
anything . I'm just suggesting now, that this characterization,
I don't want to do anything about it, I just want to say that
there's no way-
Prosecutor:
I'll move on.
Judge:
So I think you just need to kind of clean it up a little-
At that point, no mention had yet been made of the spousal privilege .
Immediately following the judge's instruction to "clean it up a little," Appellant's attorney
started the following exchange :
Def. Atty. :
And, Judge, you know his wife 1 think has a right to choose
to exercise her privilege not to testify . I don't really think
that's a proper subject for them to be commenting on and I
would object .
Prosecutor:
I would state this. She doesn't have a privilege . He has the
privilege to assert against her. Not vice-versa.
Def. Atty. :
No, I don't think you're right about that, Mister-
Judge:
Well, we haven't talked about privilege . That's number one.
Missing witnesses can be commented on in argument both
ways. Now, that's the rule and everybody's aware of that
and so we really haven't discussed Dri_vilege .
Prosecutor:
And I'll back up and I think-
Judge :
I don't want to give any admonitions in this case.
Def. Atty. :
No, I'm not asking you to do that.
Judge:
I know you're not. I think sometimes I do it. I pride myself
on giving clear and offensive admonitions . I either offend
one side or the other. I don't want to give any admonitions .
But what I'm saying is that's why I'm watching the stuff
minutely, not letting myself be backed into what I feel like
I've got to clean something up. So clean it up, retract it so
that they know you're retracting that characterization .
Because it has to be retracted .
Prosecutor:
I'll just tell them I'm going to characterize that a different way
and I'll--
Judge :
That's good . That's all it takes.
(Emphasis added .)
After this bench conference, the prosecutor continued with his cross-examination
as follows :
Prosecutor:
Let me characterize that differently . Isn't it true she doesn't
want to testify because she doesn't want to testify in here to
the same thing she told the police, because that's what you
told her to tell the police?
Appellant :
No, I can't speak for nobody else.
Prosecutor: Well, she's your wife . Surely you've had conversations with
her about this?
Appellant:
No, we don't talk about it.
Prosecutor: She made a statement to the police about your whereabouts .
Is that correct?
Appellant :
Yes, sir.
Prosecutor :
I mean, she would be your alibi witness for this murder,
correct?
Appellant:
Yeah, but I can't speak for her.
Prosecutor:
She's not going to testify?
Appellant :
No, I can't speak for her. My wife's a real, real nervous type
person and I am too.
The prosecutor paused for about a minute, and then moved on to another subject .
Appellant's attorney did not object to this recharacterized questioning, even though it
still clearly addressed the fact that Appellant's wife was not going to testify .
The spousal privilege was next mentioned during the closing argument of
Appellant's attorney. During his argument, Appellant's attorney noted that Appellant's
wife had told a police officer that Appellant had come to her house the morning of the
murder. He then argued that Bill Corn, from whose testimony it could be inferred that
Appellant asked his wife to lie, had been mistaken about what he heard. Appellant's
attorney then began to speak about Appellant's wife, stating, "Now, Mr. Bixler's wife,
Stephanie Bixler," when the judge interrupted him and asked both attorneys to approach
for a bench conference. The judge began their discussion :
11
Judge:
You know, again, I was worried . I've been looking at the
rules. I just wanted to make sure you were all aware of a
specific Rule of Evidence.
The judge showed the attorneys an open book, presumably containing the KRE
provision he had just mentioned,' and then continued :
Judge:
And I've danced around it. Because 1--you all have never
asked me to . I didn't [unintelligible]
Prosecutor :
It's prohibited .
Appellant's attorney nodded his head in agreement as the prosecutor spoke.
Prosecutor:
I was aware of its--
Judge:
Okay, good. I just didn't want to make sure that my
implication was that I had somehow ruled that this rule
wasn't in effect.
Def. Atty.:
No, Judge. I'm
Judge :
That's fine. I wasn't going to worry about it. This was just
my opportunity to make sure I don't back you into a corner. I
just didn't want to let you misconstrue what I had said .
Prosecutor :
No . I wasn't going to talk about privilege . I'm talking about
the witness.
Judge:
Okay. That's fine.
Appellant's attorney nodded his head in agreement again, and then returned to his
closing argument. He then launched into a discussion about the prosecution having
made a big deal about Appellant's wife not testifying . He noted that if she had testified,
she likely would have testified in conformity with her statement to the police. Appellant's
attorney also noted that the prosecution had the option to call Appellant's wife to testify
but had failed to do so.
' Although the specific Rule of Evidence in question was not mentioned at the
bench conference, the context of the discussion indicates that it likely was KRE 511(a),
which prohibits commentary about a claim of privilege by the judge or an attorney .
12
The privilege was next discussed during a bench conference on another issue
during the prosecutor's closing argument.
Judge:
This brings me back to this other point that's been
concerning me all along. It's what I have been pointing out
to both of you all along here, and I've been trying get it more
concisely . It talks in here about-and I don't know if you all
are [unintelligible] it because of the ex--I think we need to
clear this up. It is improper for the prosecution to argue that
the defendant's failure to call a witness whose testimony is
privileged-okay, just, well.
Def. Atty. :
Well, her testimony would be privileged, Judge.
Judge:
But, he talked, he never invoked the privilege because he
explained he didn't want to, and maybe the explanation-
Defense:
And if they had called her, you know, maybe nobody ever
would have.
Prosecutor :
All I'm saying is she was never called. She-
Judge:
I know that, but what I'm just saying is I just want to make
sure that we dance around this issue. I have ruled the way
I've ruled and let you make those comments because Mr.
Bixler made an alternative explanation . The issue was
nervous. Now, we've never talked about the privilege , but I
think we have to be really careful because I think some of
these items are preserved. Mr. McDaniel may or may not
agree with what's going on here, but some appellate review
might decide that. 1 think we have to be very careful about
this
Prosecutor:
I'm not mentioning privilege or even alluding to it
Judge :
I know you're not, but it's a little bit broader-based than that.
Def. Atty.:
Well, Judge, in view of that, I would object, and I would ask
the Court to admonish the jury that they should disregard
any comments .
Judge:
Well, then I have to talk about this. It talks about the
admonition in here relative to that. And we'll look at it after
you're done. How close are you?
Prosecutor:
Probably within ten minutes, fifteen minutes.
13
Judge:
Okay, make sure that on these items that weren't tested you
explain to them that they weren't tested because there
wasn't anything found .
Def. Atty. :
And, Judge, and I can do this after he finishes but I'm going
to ask for an admonition that they have the burden of proof
in this case, and I think we're getting buried
Prosecutor:
That's in the instructions already . Beyond a reasonable
doubt, and an admonition just, that increases it, you can't get
in
Judge :
I don't know if I'm going to give another beyond a reasonable
doubt admonition . I might remind the jury of their duty to
adopt reasonable inferences and-
Prosecutor: The law is there andJudge:
We're going to talk a little bit about it before they go back
because I saved my lengthy statement to the jury. I didn't
give it as I usually do. It's about a five-page statement that
the AOC has drafted for Judges to read to a jury, and I didn't
do it to see what few things I might have to say
Defense :
And, Judge, let me further object to his argument about all
these witnesses that we didn't call. These witnesses were
equally available to the Commonwealth . They had every
opportunity to call them, and I don't think that's the proper
argument
Prosecutor:
It's a missing witness. They talked about them. They could
establish where he was, and it's a reasonable comment, and
I can say they did not testify and that's all I've done.
Def. Atty. :
They were equally available to them
Prosecutor:
So? That's your problem
Judge :
Yeah . Well, it hasn't shifted the burden any-this is an
interesting-we've got to be really careful so we-I mean we
don't want to have a good trial and have it sunk because of
closing.
Def. Atty. :
And I haven't been able to jump up at everything, 1 mean Dr.
Roth never even examined those pills that he said that she
examine . I mean, really, really-
Judge:
Well, I explained to the jury what I'm supposed to allow for
argument, that's what it is-argument. And there's a certain
latitude in argument. As long as we stay away from those
issues that are-you know, I mean, reviewing Courts are
going tothere is latitude and I just want to be really careful
and each time if you'll go back, it just cleans the latitude
issues up. I mean, I think it's okay.
(Emphasis added .)
The privilege was mentioned again after the prosecutor's closing argument in the
context of the following discussion:
Def. Atty. :
Judge, in addition to the matters that I have raised earlier, Mr.
Ballard later, just at the end of his argument, stated that Mitchell
Cunningham had warned Daisy Whitaker about going home with
Rodney [unintelligible] he's bad . There was no testimony that I
heard to that fact.
Prosecutor:
I wrote it down, quote .
Judge :
Well, I mean, l may or may not remember that Mitchell
Cunningham told her to go home, but I mean, you can look
at the record
Def. Atty. :
There were some things that were in his statement that were
testified to and that wasn't even in the statement.
Judge:
I mean, we would, the only thing the jury would have heard
would have been his testimony .
Def. Atty.:
Yes.
Prosecutor : And that's what I referred to.
Judge:
I mean-
Def. Atty. :
There was no testimony about that.
Prosecutor : I said from-well, you can go back and look at it. But it was
there and I told him that he's, he testified to that. We wrote
down what he said .
Judge:
Well, I mean, 1 don't have any independent memory of
whether or not it was said. If it was said, then everything
you've said about it is a reasonable inference that can be
15
drawn from the evidence . If it wasn't said, if Mitchell
Cunningham didn't say that, then I've got a problem.
Def. Atty.:
[unintelligible]
Judge:
That's all, that's by Mr. Ballard's, you know I've followed
along and--
Prosecutor :
It's the same thing with-
Judge:
I've cleared a couple of the things up that I thought along he
articulated the Commonwealth's position in the case within
the context of reasonable inferences he felt could be drawn
from the evidence, whether or not the jury-the jury is not
going to try this case on the closing arguments .
Def. Atty. :
No, sir. And, I thank God.
Judge:
And I don't really [unintelligible] . Again, I expressed some
issues about latitude, and we got up to some edges, but we
never fell right off into any of those errors that have
classically been problems, you know. So, if this case, and
Mitchell--and this is absolutely not true, and I suggest that
during lunch you review Mitchell Cunningham's testimony.
Prosecutor : That's not Mitchell's, Roberta Ragland .
Judge:
Okay. Or whoever. That Mitchell Cunningham said that.
Then I think that could be cleared up by an admonition .
Now, I do not really think that anything presented itself in
order for me to declare a mistrial. I want to point out also
that on this--I mean, I'm dancing around it, and we have
danced aroundthere was never any
in which Rodney
2
Bixler or his wife invoked the privilege.
Prosecutor :
That's correct.
Def. Atty. :
It wasn't necessary.
Judge:
I didn't say it was. I'm just saying. So the comments that
were made about her not testifying were appropriate
2 We have included the extended discussion leading up to this mention of the
privilege to show the context of Appellant's motion for a mistrial . In his brief to this
Court, he claims that the privilege issue was the basis for the motion. However, the
exchange reproduced above indicates that the motion for a mistrial was based on
Appellant's allegation that the prosecutor had misstated the testimony of several of the
witnesses, which is the basis of the other issue that Appellant has raised in this appeal.
16
inferences to be drawn from the evidence about Rodney
Bixler's testimony about why she didn't testify . So, I really
never think we got into that. If there had been a formal
invocation of the privilege , then I think we wouldn't have
been able to mention her name in closing . Okay? You see
what I'm saying?
Def. Atty. :
Yes, sir.
Judge:
But because it was never invoked , and that's why I was kind
of bringing it up, I felt uncomfortable. You all had had some
maybe even discussions that I wasn't familiar with about her
as a witness.
Prosecutor:
The only discussion, we came one time up here at the bench
and that was the only mention ever made .
Judge:
Okay. Well, that's the first I heard. But no problem . But
what I'm saying is my rulings were predicated ugon the fact
that the privilege was never invoked and whether or not
that's good enough to allow it to be commented on is an
issue for the appellate courts because the Kentucky case
law indicates that the privilege shouldn't be commented on,
the failure of the witness to testify shouldn't be commented
on, but it all is graced with the issue of the invocation of the
privilege .
Def. Atty. :
Judge, I think there's some cases where if a witness is
equally available to the Commonwealth they're not allowed
to comment. That's why I think they were wrong to do that
also.
Judge :
Well, certainly there is that concern about trying to
attempting to shift the burden . I mean, they presented their
evidence through her statement. You both touched on that
in your argument . That was the evidence. And as you said
in your closing argument, that established an alibi. So after
that of course everybody's going to, from their tactical
positions, argue their positions about why they chose to
present that bit of evidence the way they presented it. So,
again-
Prosecutor: And Mr. McDaniel made the comment that they were
available for our subpoena power or call as witnesses
Judge:
Either one of you could have called her and maybe neither
one of you wanted to touch her because of, I don't know .
17
You know what I'm saying? I mean, it was a tactical, the jury
will decide whether or not that matters .
Prosecutor:
That's correct
(Emphasis added .)
The judge then returned to the issue of the defense motion for a mistrial based
on the prosecutor's alleged mischaracterization of the evidence . The judge also
allowed Appellant's attorney to make belated motion for a directed verdict. Both
motions were denied. The spousal testimony privilege was not mentioned again .
Our rules grant what is known as the spousal testimony privilege or the adverse
testimony privilege :
The spouse of a party has a privilege to refuse to testify against the party
as to events occurring after the date of their marriage . A party has a
privilege to prevent his or her spouse from testifying against the party as
to events occurring after the date of their marriage .
KRE 504(a). It is improper for an attorney comment on the claim of the privilege : "The
claim of a privilege, whether in the present proceeding or upon a prior occasion, is not a
proper subject of comment by judge or counsel . No inference may be drawn therefrom ."
KRE 511(a).
Our focus in discussing this issue is whether the spousal testimony privilege was
invoked so as to allow Appellant to enjoy the protections of KRE 511(a).3 The
3 Though the parties have not raised the issue, we note in passing that KRE
511 (c) provides : "Upon request, any party against whom the jury might draw an adverse
inference from a claim of privilege is entitled to an instruction that no inference may be
drawn therefrom ." Appellant's attorney never asked for such an instruction, although we
regularly require litigants to request a limiting instruction or admonition in order to
preserve an error. ,E__g_., Ernst v: Commonwealth , 160 S.W.3d 744, 759 (Ky. 2005)
}
("Appellant never objected to the admission of any of this testimony at trial, much less
requested a limiting admonition . We have held that such admonitions are required only
"upon request" and that the failure to request an admonition is generally regarded as
trial strategy . Certainly, we would not expect a trial judge to sua sponte admonish the
18
Commonwealth's Attorney twice discussed the failure of Appellant's wife to testify-first
during cross-examination of Appellant and later during his closing argument. During the
cross-examination, Appellant's attorney objected to the questioning and mentioned the
existence of the spousal testimony privilege . The trial judge raised the issue
independently three other times, including during and at the end of the Commonwealth's
closing argument. The judge made clear that he was aware of the prohibition in KRE
511 (a) on commenting on the claim of a privilege . But as the judge noted repeatedly,
neither Appellant nor his wife ever expressly invoked the spousal testimony privilege,
thus the privilege, and its incumbent protections, had never been presented squarely to
the court . Rather, the issue that the judge addressed was the prosecutor's comment on
the fact that Appellant's wife, by not appearing at trial, was a missing witness. In so
making these comments, the judge was inviting Appellant's attorney to indicate whether
Appellant had chosen to exercise his privilege . Appellant's attorney, however, did not
accept that invitation, thus there is no evidence in the record that Appellant asserted his
privilege to prevent his wife from testifying .
jury to give a limiting effect to evidence to which there was no objection . The failure to
give an unrequested limiting admonition is not palpable error." (citations omitted));
Soto v. Commonwealth, 139 S.W .3d 827, 861-62 (Ky. 2004) ("Appellant did not request
an admonition to the jury to disregard the evidence ; thus, no error occurred . Absent
countervailing evidence, the failure to request a limiting admonition is regarded as a trial
tactic, intended to avoid calling further attention to the improper evidence."). However,
the error alleged here is not that the jury drew an adverse inference against the
Appellant, but that the prosecutor improperly commented on the privilege . KRE 511 (c) is
designed to allow a party to attempt to prevent the jury from drawing an adverse
inference from the exercise of a privilege . But as Professor Lawson notes, the rule also
includes the right "to have jurors . . . not instructed if an affected party desires to have
no attention drawn to the privilege claim . . . ." Robert G . Lawson, Kentucky Evidence
Law Handbook §5 .30[2], at 397 (4th ed . 2003). It would make little sense to require a
party to request an instruction drawing attention to the exercise of a claim of privilege
where the underlying allegation of error hinges on the other party improperly drawing
attention to the claim of privilege .
19
The closest Appellant or his attorney came to invoking the privilege was the first
mention of it, when the attorney stated as part of his objection to the prosecutor's
questioning that Ms. Bixler had "a right to choose to exercise her privilege not to testify ."
When the prosecutor then suggested that the privilege belonged to Appellant, rather
than his wife, Appellant's attorney claimed this was a mistaken interpretation of the law.4
In light of this subsequent discussion, it is clear that Appellant's attorney's initial mention
of the privilege cannot constitute an invocation of Appellant's privilege to prevent his
wife from testifying. Appellant also asserts that his wife exercised the privilege by
deciding not to testify at trial, although there is no evidence in the record that she ever
invoked the privilege or actually chose not to testify .
We have previously held that a party-spouse cannot exercise the privilege of his
spouse not to testify. See Pate v. Commonwealth , 134 S.W.3d 593, 600 (Ky. 2004)
("[W]hether or not the trial court erroneously refused to allow [Appellant's wife] to assert
her privilege is immaterial; it was her privilege that she was attempting to assert, not his .
Appellant had every opportunity to assert his own adverse testimony privilege under
KRE 504(a) in order to prevent his wife from testifying against him. Appellant made no
effort to do so; thus, Appellant's failure to assert his own privilege precludes review of
this issue. In essence, Appellant contends that the trial court's denial of [his wife's]
spousal testimony privilege was somehow a violation of his rights . We fail to see how
4 In fact, both the prosecutor and Appellant's attorney incorrectly described the
law of the spousal testimony privilege in Kentucky. Appellant's attorney correctly stated
the law of the spousal testimony privilege as it existed before the adoption of the Rules
of Evidence . But KRE 504(a), as adopted in 1992, expanded the spousal testimony
privilege so that it now applies to both spouses : a witness-spouse may avoid testifying
against the party-spouse, and the party-spouse may prevent the witness-spouse from
testifying adversely to the party-spouse . See Robert G . Lawson, Kentucky Evidence
Law Handbook §5.10[3], at 367 (4th ed . 2003) ("The prerogative provided by KRE
504(a)-to preclude adverse testimony-belongs to both spouses .").
20
Appellant has standing to assert his wife's privilege, and Appellant does not offer any
authority in support for this proposition ."). Just as in Pate , Appellant's attempt to claim
the protection of his wife's spousal testimony privilege must fail. A party-spouse has no
standing to claim the protection of the witness-spouse's privilege not to testify.
Appellant must rely instead on his own privilege .
Appellant makes a similar claim regarding the exercise of his privilege . He
argues that his decision not to call his wife to testify, as evidenced by the fact that she
did not testify, was sufficient to constitute an invocation of the privilege . Appellant cites a
single case, McFarland v. Bruening, 299 Ky. 267, 185 S .W.2d 247 (1945), for the
proposition that merely failing to call the spouse as a witness constitutes an assertion of
the privilege . Appellant's reliance on McFarland , however, is entirely misplaced as the
case's only discussion of the spousal testimony privilege is to note that, as of 1940, "a
husband or wife is now a competent witness for the other. . . ." Id . at 270, 185 S.W .2d at
250. McFarland 's only effect was to note that the law of spouses as witnesses had
changed so that the rule of absolute incompetency of either to testify for or against the
other was no longer in effect.
But if Appellant indeed intended his failure to call his wife to be an exercise of his
privilege, we simply cannot approve such a passive-aggressive litigation tactic, even
when Appellant's liberty is at stake. Under such a construction of KRE 504(a), whether
a defendant had exercised the privilege would never become clear until the close of the
defense's evidence. This creates a serious notice problem both for the court and the
prosecutor, and would allow the defendant the advantage of limiting the prosecutor's
opening statement and questioning of witnesses by simply doing nothing . Ultimately,
were we to accept Appellant's claimed exercise of his privilege, the necessarily resulting
21
rule would be that the party-spouse's adverse testimony privilege is in effect by default
unless expressly waived by the party spouse.
This, of course, leads us to the subtler issue of whether the invocation of the
spousal testimony privilege is necessary in order to claim its protection, or put
differently, whether the privilege is in effect automatically . In fact, Appellant's ultimate
argument that his failure to call his wife to testify invoked his privilege, as wanting as it
is, might as well be a claim that an express invocation of the privilege is unnecessary .
Unfortunately, our decisions that approach this issue are inconsistent .
The primary support for the no-invocation thesis comes from Sexton v.
Commonwealth, 304 Ky. 172, 200 S.W.2d 290 (1947), and Gossett v. Commonwealth ,
402 S.W .2d 857 (Ky. 1966). In Sexton, the Court held that it was prejudicial for the
prosecutor to comment on the defendant's failure to call his wife to testify, relying on this
general rule:
Where witnesses, not testifying on a trial, would have been incompetent or
would have testified only as to immaterial or irrelevant matters, if they had
been offered as witnesses, the failure of the accused to produce such
witnesses should not be made the subject of unfavorable comment by the
prosecuting attorney . Sexton's wife, not on trial in her own case, could not
have been compelled to testify as a witness against him. See Sec. 606,
Ky. Civil Code, as amended by Acts of 1940, c. 95.
304 Ky. at 177, 200 S .W.2d at 293. In Gossett, the defendant's wife did not testify, and
the prosecutor commented on this fact. There is no indication that the defendant
invoked his spousal testimony privilege, yet our predecessor court held:
It is written in KRS 421 .210 (old Cr.Code 606) that `neither (husband or
wife) may be compelled to testify for or against the other.' Comments by
the Commonwealth's attorney on failure of the wife to testify or failure of
the husband to call the wife as a witness are improper, prejudicial, and
have been consistently condemned by this court. Cf. Sexton v.
Commonwealth , 304 Ky. 172, 200 S .W.2d 290 (1947); and Coffey v.
Commonwealth , Ky., 256 S.W.2d 379 (1953).
22
402 S .W .2d at 858-59 . Gossett's reliance on Sexton is understandable, but its citation
to Cofev as evidence of the consistent condemnation of the practice of commenting
about the spousal testimony privilege is puzzling as the latter case stands only for the
limited proposition that "neither the husband nor the wife can be compelled to testify for
or against the other" and recognizes that "the refusal so to do is the prerogative of the
witness." Coffe rev. Commonwealth , 256 S .W.2d 379, 381 (Ky. 1953) .
It should be noted that Gossett and Sexton rely on a much older version of the
spousal testimony privilege, one that differs significantly from the one currently
embodied by KRE 504(a). The spousal testimony privilege, like the marital
communications privilege, "originated as [a] common-law rules . . . ." Robert G . Lawson,
Kentucky Evidence Law Handbook § 5.10[2], at 365-66 (4th ed . 2003). It originally
consisted of a pure rule of competency, or more accurately incompetence, as it
prohibited spouses from testifying either for or against each other. It was codified as
early as the first Code of Civil Practice adopted in 1851 . See 1851 Code of Civil
Practice § 568 ("The following persons shall be incompetent to testify : . . . (4) Husband
and wife, for or against each other, or communication made by one to the other, during
the marriage, whether called as a witness while the relation subsisted or afterwards.").
The same provision was included as Section 568 of the second edition of the Code of
Civil Practice published in 1853, and as Section 670 of the Code of Civil Practice
published in 1854 (the first year in which a complete Code of Practice for both civil and
criminal cases was published) . A slightly altered provision--"Neither a husband nor his
wife shall testify while the marriage exists or afterwards concerning any communication
between them during the marriage . Nor shall either of them testify against the other.
Nor shall either of them testify for the other . . . .'=was included as Section 606 in later
23
versions of the Civil Code of Practice . Section 606 was amended by 1940 Ky. Acts Ch.
95 to read : "In all actions between a husband and wife, or between either or both of
them and another, either or both of them may testify as other witnesses, except as to
confidential communications between them during the marriage . . . . and provided
further, that neither may be compelled to testify for or against the other." This appears
to be the privilege provision on which Sexton and Gossett were based . Section 606 was
later codified as KRS 421 .210(1), which has since been repealed, 1992 Ky. Acts . ch .
324, §.30 (effective July 1, 1992), and replaced by KRE 504.
Our more recent cases, most of which were decided since the adoption of the
Rules of Evidence, contemplate that a person claiming the protection of the spousal
testimony privilege must actually invoke it. For example, we have noted that "[t]he party
invoking the marital privilege has the burden of proving its applicability . . . ." Sanders v.
Commonwealth , 89 S .W.3d 380, 391 (Ky. 2002). Explicit invocation would seem to be
the most obvious avenue for proving the applicability of the privilege . And those cases
that discuss the privilege almost always note the defendant invoked the privilege . See,
etc . , Slaven v. Commonwealth, 962 S .W.2d 845, 852 (Ky. 1998) ("[I]f Appellant's wife
had been willing to testify against him, Appellant could have prevented her from doing
so by invoking the privilege ."); Estes v. Commonwealth , 744 S .W.2d 421, 425 (Ky.
1987), overruled in part by Slaven v. Commonwealth , 962 S.W.2d 845, 852 (Ky. 1998)
(noting that the defendant "has invoked a statutory privilege") ; Miller v. Carter, 500
S.W .2d 600, 600 (Ky. 1973) ("Appellant's husband attempted to invoke the privilege of
not testifying, when called by appellee, as provided by KRS 421 .210(1) . . . . The court
compelled him to testify ."); cf. Thurman v. Commonwealth, 975 S.W.2d 888, 896 (Ky.
1998) (noting that "there is nothing in this record to prove that the spousal privilege was
24
ever asserted," but reaching the merits of the issue of alleged improper commentary on
the privilege because of a contemporaneous objection). This constant description of
defendants "invoking" the privilege, while not dispositive of the issue, is at least
evidence that it is the most appropriate, if not only, means by which a defendant can
bring the privilege to the trial court's attention.
More convincing, however, is the fact that we have already read the KRE 504(a)
spousal testimony privilege, which as noted above is quite different from the statute
involved in Gossett and Sexton , as requiring active assertion before its benefits, which
would include the right to bar commentary on its exercise, can be enjoyed . We held in
Pate v. Commonwealth : "Appellant had every opportunity to assert his own adverse
testimony privilege under KRE 504(a) in order to prevent his wife from testifying against
him . Appellant made no effort to do so; thus, Appellant's failure to assert his own
privilege precludes review of this issue." 134 S .W.3d at 600 . Similarly, the Court of
Appeals has held, in an opinion ordered published by this Court, that:
The Rule states that the privilege may only be asserted by the person
holding the privilege. [Appellant's wife] did not assert the privilege at the
hearing, but chose to testify. Appellant did not assert the marital privilege
at the time of her testimony. Thus, appellant cannot complain at this stage
since he thereby waived the spousal privilege by not asserting it.
White v. Commonwealth , 132 S.W .3d 877, 882 (Ky. App. 2004). Though White was
specifically discussing the marital communications privilege, KRE 504(b), its holding
that failure to assert the spousal privilege constitutes a waiver of the privilege is equally
applicable to the spousal testimony privilege .
This interpretation is supported by the language of the privilege rules themselves .
The privilege of the witness-spouse is "to refuse to testify against the party . . . ." KRE
504(a) (emphasis added). The privilege of the party-spouse is "to prevent his or her
25
spouse from testifying against the party . . ." Id . (emphasis added) . In describing the
two aspects of the spousal testimony privilege, the rule employs active verbs, indicating
that the privilege itself consists in doing some act or assertion that prevents the witness
from testifying . Moreover, it is the "claim of privilege . . . [that] is not a proper subject of
comment . . . ." KRE 511 (a) (emphasis added) ; see also KRE 510 ("A claim of privilege
is not defeated by a disclosure which was . . . (2) Made without opportunity to claim the
privilege ."). This emphasis on the claim of a privilege presupposes that a party-spouse
or witness-spouse has actually done some act in order to assert the privilege . Thus,
that the forbidden act is comment on the claim of the privilege, rather than the mere
existence of the privilege, further reinforces this notion of requiring active assertion of
the privilege. We conclude that a plain reading of these rules requires some form of
affirmative invocation of the spousal testimony privilege before a defendant can enjoy its
benefits .
In reaching this conclusion, we are cognizant of the fact that the spousal
privileges, at least those not related to confidential communications within the marriage,
should be strictly construed . See Robert G. Lawson, Kentucky Evidence Law
Handbook § 5.10[2], at 366 (4th ed. 2003) ("Spousal privileges are designed to protect
marital relationships and do so at a cost to the search for truth in the justice system. All
courts tend to say that the privileges should be strictly construed and extended no
further than the need to serve the narrow purposes for which they exist.") . We note that
our reading of KRE 504(x) as requiring active assertion of the privilege conforms with
the modern trend in requiring strict construction of those provisions giving rise to the
spousal privileges.
In light of the foregoing discussion, we conclude that Gossett and Sexton are
anomalous in our case law in that they rely on spousal privilege where the privilege has
not been invoked . As likely as not, this is due to their reliance on the old Code of
Practice, which had only recently been amended from an outright bar on spousal
testimony to create a privilege against compelled testimony. We think the better
approach is embodied in our more recent case law, specifically Pate and White, and a
plain reading of the privilege rules . A party-spouse must assert or invoke the spousal
testimony privilege on the record before he or she can claim the protections of the rule.
No doubt, there will be some concern about the proper method for asserting the
privilege . But it is clear that doing nothing is simply insufficient to invoke the privilege .
Instead, assertion of the privilege can be handled like so many other evidentiary issues.
A party-spouse who wishes to claim the benefits of the privilege simply needs to invoke
it on the record and may do so at any time . For example, prior to trial, the privilege
could be asserted through a motion in limine. Alternately, the party-spouse could wait
until an appropriate moment during trial-perhaps when the witness-spouse is called to
testify or when the other party begins to comment on the witness-spouse's failure to
testify-to assert the privilege.
After all this discussion, we are left with the obvious question of why Appellant's
attorney never invoked his privilege, especially when given so many opportunities to do
so and when doing so would have been a simple matter of, well, speaking up. A close
examination of the record quickly reveals a good candidate for the answer . Appellant's
attorney also wanted to be able to make comments about Ms. Bixler's failure to testify .
The proof of Appellant's alleged alibi came in only one form: the testimony from Officer
Schell about Ms. Bixler's earlier statement . In his closing argument, Appellant's
27
attorney noted that the prosecutor made a big deal about Appellant's wife not testifying .
In response, he claimed that had she testified, she simply would have testified in
conformity with her statement to the police. Appellant's attorney then noted that the
prosecution also had the option to call Appellant's wife to testify but had failed to do so .
This last statement, taken at face value, indicates a waiver of the spousal testimony
privilege in that Appellant's attorney admitted that the prosecutor could have called Ms.
Bixler to testify . At the very least, it shows that Appellant never invoked the privilege
since his attorney was stating that nothing prohibited Ms. Bixler from testifying .
More importantly, this portion of Appellant's attorney's closing argument shows
that the decision not to invoke the privilege was strategic and therefore intentional . By
not invoking the privilege, Appellant's attorney was free to comment on Ms. Bixler's
failure to testify. This is why the trial judge noted repeatedly that he saw the substance
of Appellant's objection not as privilege, but as about the proper scope of comment on a
missing witness. Because the privilege had not been asserted, he allowed both sides to
argue about why the other side had declined to call Ms. Bixler. Appellant's attorney
took full advantage of this to point out that the prosecutor was free to call Ms . Bixler had
he been truly concerned about the validity of her statement to the police. This, in turn,
undercut the prosecutor's attack on Appellant's alleged alibi, thus allowing Appellant's
attorney to bolster his client's alibi without ever calling an alibi witness.
This situation is further proof of why the spousal testimony privilege must be
invoked before its protections may be enjoyed . If it does not have to be invoked,
attorneys would be free to attempt what Appellant's attorney did, that is, to make
competing, and indeed conflicting, claims about privilege in order to gain an advantage
over the prosecutor. Though only a single level of the Court of Justice was faced with
28
Appellant's conflicting claims, the principle underlying the classic formulation that a
party "will not be permitted to feed one can of worms to the trial judge and another to
the appellate court," Kennedy v. Commonwealth , 544 S.W.2d 219, 222 (Ky. 1976), is
nonetheless at play. To hold otherwise, in the parlance of apt cliches, would allow
Appellant to have his cake and eat it too.
Because Appellant never invoked his own privilege and cannot claim the benefit
of his wife's privilege, the prosecutor's comments about Ms. Bixler's failure to testify
were not error.
B. Prosecutor's Closing Argument
Appellant also claims that the prosecutor was improperly allowed to misstate the
facts several times during his closing argument. We begin by noting we have
"repeatedly held that a prosecutor is permitted wide latitude during closing arguments
and is entitled to draw reasonable inferences from the evidence . . . ... Commonwealth v.
Mitchell, 169 S .W .3d 129, 132 (Ky. 2005). We will address the prosecutor's alleged
misstatements in light of this long-running legal principle, and in the order in which they
appear in the prosecutor's closing argument.
The first claimed misstatement occurred when the prosecutor was discussing
what Appellant had told Thomas Ellison .5 When the prosecutor mentioned that Ellison
5 Though it has not been presented on appeal, Appellant's attorney objected at
least one other time before this claimed misstatement . He objected when the
prosecutor was discussing the testimony about Appellant being in Lexington and having
drugs and money. We need not address the accuracy of the prosecutor's
characterization of this testimony, since it has not been raised on appeal . We mention
it, however, because, while the judge did not admonish jury, the prosecutor agreed to
clarify that he was not giving evidence in closing. Immediately after bench conference,
he told the jury, "You will remember the testimony. You will remember where it came
from, and you will remember who said and how it was said and when it was said." The
Commonwealth's brief mistakenly characterizes this statement as an admonition by the
judge.
29
claimed Appellant told him that his father had had sex with the victim, he also said, "and
Rodney Bixler had told it to one other person in this case, Mike Schell ." Appellant's
attorney objected, arguing that Appellant had only made that statement to Ellison .
However, in his statement to the police, which was taken by Officer Schell, Appellant
claimed that his father had been "with" the victim . It is a reasonable inference,
especially in closing argument, that this meant that Appellant's father had been in a
sexual relationship with the victim . As such, the prosecutor did not misstate the
evidence in this respect.
Nevertheless, the trial judge chose to admonish the jury that closing arguments
did not constitute evidence in the case. He stated :
Again, this is closing arguments . You are to decide the facts of the case.
So listen. This does not supplant the evidence . This is the
Commonwealth's argument. It should not take the place of the evidence
you heard . You can use it to guide yourself to the evidence and
understanding the Commonwealth's case. But you are to decide the facts
of this case. Mr. Ballard isn't intending to tell youto re-testify . He is
making an argument. So you are to consider the testimony and Mr.
Ballard's argument.
Appellant objected to another alleged misstatement of the evidence a few minutes later .
Though this specific allegation has not been raised on appeal, we note it because after
the bench conference on the objection, the judge again admonished the jury, stating:
"Again, reasonable inferences from the evidence."
The next claimed misstatement occurred when the prosecutor was discussing
pillows found at the scene . He noted that the medical examiner had testified about
blood on the pillows. He then stated : "[A]nd that blood, if you remember [the medical
examiner] testifying that the patterns on the pillow and what was there could have been
and probably were the result of those being used as the instruments that caused [the
victim's] death, which strangled or suffocated her. The pattern came from the
30
lacerations on the lips." Appellant claims that this was a flagrant misrepresentation of
the evidence because the medical examiner had specifically testified that she could not
tell what instrument had caused the victim's death, only that it was a blunt object,
perhaps a hand or a pillow. We first note that there was no contemporaneous objection
to this part of the prosecutor's argument, though Appellant's attorney did mention it at a
bench conference a few minutes later, when he tried to excuse his failure to object by
noting that he could not "jump up at everything ."
The medical examiner actually testified that the cause of death was the
application of force to the throat and mouth of the victim, resulting in strangulation or
smothering . She testified that the victim had bruises on her face and that her lower lip
was swollen and lacerated. She also testified that if the victim had been smothered with
a pillow, her facial wounds could have left blood on the pillow . On cross-examination,
she described the victim's facial injuries again, and stated that she could not tell "exactly
what object" had been used to smother the victim, but that it was a "blunt object,
whether it was a hand or a pillow." While Appellant is correct that the prosecutor's
description of the medical examiner's testimony was not completely accurate, it did not
constitute a flagrant misrepresentation of the evidence . Certainly, the prosecutor's
claim that the blood on the pillows came from the injuries to the victim's face was a
reasonable inference from the evidence .
The next alleged misstatement by the prosecutor came in his discussion of the
panties found near the victim's body. The prosecutor noted that Appellant's semen had
been found in the victim's vagina. He then recounted Appellant's claim that the victim
had gotten dressed after they had sex before taking him home . The prosecutor then
stated: "[S]ome panties that was found in random places in the bathroom and bedroom
31
were taken, were submitted to the forensic laboratory, and no results were delivered as
to either one of those containing or having semen on them." Appellant's attorney
objected to this statement, arguing at the bench conference, "[H]e knows that those
panties were never tested ." The prosecutor admitted that the panties had not been
tested, but that they had been submitted for testing. He then agreed, at the judge's
urging, to recharacterize his statement. When he returned to his argument, the
prosecutor said : "You can look at and you will see that these two items were submitted
to the forensic laboratory. Nothing was found to be tested, and the reports show that.
Read the reports . Look at the reports. Look at what was established ." He then made
the argument that commonsense dictated that if the victim had put on her panties after
having had sex, semen from the sex-act would be on the panties . Appellant's attorney
objected again and moved for a mistrial, stating that the prosecutor "knows good and
well that those panties were never tested, period, and he's now suggesting that they
tested them." The trial judge noted that as he understood the evidence, the panties
were submitted, examined, and found not to have anything on them that could be
tested .
Thus, the judge stated, as long as the prosecutor was careful in what he said, his claims
were a reasonable inference from the evidence. When he again returned to his
argument, the prosecutor stated, "You will find that the forensic laboratory received
those two pair of undergarments . They were examined . There was nothing found to
test."
Appellant now contends that this portion of the prosecutor's argument was the
most egregious misstatement of the evidence. He argues that the technician to whom
the panties were submitted testified that her job was only to search for trace evidence,
such as hair and fibers, thus it was improper for the prosecutor to imply that she had
32
examined the panties for possible DNA evidence and that, because they had not been
forwarded for testing, she had found no traces that might include DNA. The lab
technician, however, never testified whether she examined items to determine if they
should be tested for DNA testing, although she did testify that several items other than
the panties-pillows and sheets found in the car, and a sheet from the victims bed-had
been sent to be tested for DNA.
Though the prosecutor's characterization of this testimony is more troubling, we
cannot say that it was not a reasonable inference. Obviously, someone at the forensics
laboratory decided some of the physical evidence should be tested for DNA and that
some should not. The testimony at trial, however, did not reveal exactly how this
decision is made. Given the testimony presented, it is possible, and not entirely
unreasonable, to conclude that the panties were not tested because the technician who
received them felt they were unlikely to contain DNA evidence . It is also possible, as
Appellant now argues, that the items were not tested because of sloppy practice in the
laboratory. Such a competing inference is also appropriate for a closing argument. The
mere fact that evidence supports one argument does not foreclose the reasonableness
of a different argument, so long as the evidence is consistent with both propositions .
Thus, we cannot say that the prosecutors characterization of the evidence exceeded
the wide latitude allowed in closing arguments .
Finally, Appellant claims error in the prosecutor's statement near the end of
closing argument that "[e]verything that could be tested that would result in a
determination was done ." Appellant claims that this was patently untrue since the
panties had not been tested, several hairs found at the scene had not been tested, and
the fingernail clippings from the victim were never tested . In light of this recitation of
untested evidence, we agree that the prosecutor's comment was technically incorrect.
However, it is equally clear that the comment was merely a generic and relatively
innocuous rhetorical statement about the overall quality of the scientific evidence. We
also note that Appellant's attorney failed to preserve this alleged mischaracterization of
the evidence because he did not object at trial (the statement was first raised in the
post-verdict motion for a new trial) .
Ultimately, we conclude that the prosecutor's statements during closing argument
did not stray outside the bounds of acceptability. Attorneys are allowed wide latitude in
arguing the facts and drawing inferences from them in closing argument. Moreover, if
the prosecutor's characterization of the evidence could be viewed as even slightly
prejudicial, it was rendered harmless by the judge's repeated admonitions, as echoed
by the prosecutor himself, that the jurors were to consider only the evidence and
reasonable inferences from the evidence and that the attorney's arguments were not
evidence.
For the foregoing reasons, the judgment of the Shelby Circuit Court is affirmed .
Graves, Minton, Scott and Wintersheimer, JJ., concur. Lambert, C.J., dissents
by separate opinion in which McAnulty, J., joins.
6 Appellant also claims that this statement is contradicted by the fact that Officer
Schell failed to investigate the several Hispanic men with whom the victim had been
involved with previously. However, it is clear that the prosecutor's statement referred to
the physical evidence sent to the forensics labs.
34
COUNSEL FOR APPELLANT:
Randall L . Wheeler
Assistant Public Advocate
100 Fair Oaks Lane
Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE :
Gregory D. Stumbo
Attorney General
Michael Harried
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
Samuel J. Floyd, Jr.
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
,Supreme
RENDERED : AUGUST 24, 2006
TO BE PUBLISHED
Courf of 'irufurhv
2004-SC-000215-MR
RODNEY T. BIXLER
V.
APPELLANT
APPEAL FROM SHELBY CIRCUIT COURT
HONORABLE WILLIAM F. STEWART, JUDGE
NO. 2001-CR-00110
COMMONWEALTH OF KENTUCKY
APPELLEE
DISSENTING OPINION BY CHIEF JUSTICE LAMBERT
Respectfully, I must disagree with the majority's analysis of the spousal
testimonial privilege . The majority today holds that the privilege must be "invoked"
before its protections are available . While this is so after the spouse is called as a
witness, here the spouse was never called and a need to invoke the privilege never
arose . Despite this, the Commonwealth was permitted to comment, over objection,
upon the failure of the Defendant's spouse to testify . Under a strict reading of the
majority opinion, a party wishing to prevent the testimony or comment thereon of any
potential witnesses on privilege grounds must invoke all available privileges at the
outset or be held to have committed waiver.
The spousal privilege grants a defendant the right to prevent his or her
spouse from testifying in a criminal case. However, in the instant case, the prosecution
did not call the spouse to testify. Thus, it is perplexing that the majority has placed upon
the Defendant the burden of invoking a privilege to prevent testimony where there was
never any attempt to procure or offer such testimony.
After posing the question of whether the spousal privilege is only a
potential privilege that must be invoked to be cognizable, or whether it is a privilege
conferred and automatically in effect unless it is waived, the majority states that our
decisions approaching the issue are inconsistent . I disagree . Sexton v.
Commonwealth' and Gossett v. Commonwealth 2 are directly on point, and both held
that the failure of a defendant's spouse to testify could not be the subject of unfavorable
comment by the prosecution, precisely what occurred here . Sexton and Gossett are the
only cases cited wherein the spouse's testimony was never sought, but the failure to
testify subjected to unfavorable comment. Both cases were reversed . As in the instant
case, the Court held that there was no need for the defendant to invoke the privilege to
prevent the introduction of testimony and the unfavorable comment on failure of the
witness spouse to testify . The cases relied on by the majority to create a conflict with
Sexton and Gossett are simply inapplicable due to factual dissimilarity . In those cases,
the spouses testified or at least attempted to testify against the defendant spouses .
In other circumstances, where the prosecution calls the defendant's
spouse to testify, the defendant should be required to object on grounds of the spousal
privilege . At that point, a hearing could be held to determine whether the privilege
applied and a ruling rendered based on the evidence produced at the hearing .
However, the need to object or "invoke" the spousal privilege would not arise until and
unless the prosecution sought the testimony the privilege was designed to prevent.
2 304 KY 172, 200 S.W.2d 290 (1947) .
402 S.W.2d 857 (Ky. 1966) .
Thus, I believe that Sexton and Gossett govern this case and I have found
no other cases that abrogate or conflict with them.
McAnulty, J., joins this dissenting opinion .
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