PHILLIP L. BROWN V. COMMONWEALTH OF KENTUCKY
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2006-SC-000654-MR
PHILLIP L. BROWN
V.
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE JAMES G. WEDDLE, SPECIAL JUDGE
NO . 06-CR-00248
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE ABRAMSON
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
Phillip Brown appeals from an August 21, 2006 judgment of the Warren
Circuit Court, convicting him of first-degree burglary, in violation of KRS
511 .020; of first-degree robbery, in violation of KRS 515 .020 ; and of murder, in
violation of KRS 507 .020. Brown was sentenced to consecutive twenty-year
prison terms for both the burglary and the robbery, and he was sentenced to
death for the murder . The Commonwealth alleged, and the jury found, that
during the early morning hours of January 11, 2001, Brown forcibly entered
the residence of Sherry Bland and that in the course of stealing her television
set and possibly money or other items from her purse, he killed Bland, by
stabbing her with a steak knife and beating her repeatedly with a tire iron .
Brown challenges both his conviction and his sentence, alleging some twenty
errors by the trial court and raising several additional arguments against the
death penalty. We reject Brown's claims of error with respect to his conviction,
but we agree with him that he was improperly subjected to the death penalty in
his second trial. Accordingly, we affirm the trial court's judgment to the extent
that it finds Brown guilty of the charged crimes and sentences him to
consecutive twenty-year prison terms for robbery and burglary, but we reverse
Brown's death sentence for murder and remand for resentencing with respect
to that crime .
RELEVANT FACTS
Brown's 2006 Warren County trial was his second trial for the alleged
offenses against Sherry Bland . Bland resided on Pine Tree Street in Columbia,
in Adair County, and it was an Adair Grand Jury that indicted Brown on
August 13, 2002 . Brown was tried in that county and convicted of the same
three offenses in September 2003. At that trial, the jury found two aggravating
circumstances pursuant to KRS 532 .025 but did not recommend the death
penalty. Instead, the first jury recommended a sentence of life in prison
without the possibility of parole for at least twenty-five (25) years. Brown
appealed from the Adair Circuit Court Judgment, and in an unpublished
opinion in August 2005, this Court reversed Brown's conviction because his
Sixth Amendment right to cross-examine certain key prosecution witnesses
had been improperly limited. On remand, the parties agreed to transfer venue
to Warren County, and Brown was retried in the Warren Circuit Court in May
2006.
In addition to the horrific crime-scene evidence, which established
beyond any doubt that Bland had been murdered, the Commonwealth's proof
at trial fell roughly into three categories . There were witnesses-Jerry Kemp,
Charlene Palmer, and Barbara Slater-who connected Brown to the stolen
television set. Kemp, who had been a close friend of Brown, testified that at
3:00 or 4 :00 one morning at about the time of the murder, Brown had come to
his, Kemp's, apartment with a television set similar to the one stolen from
Bland . Kemp testified that he kept the television for a few weeks until he heard
on the news that a similar television had been taken from Bland's residence .
Barbara Slater, Kemp's mother, testified that she too became concerned when
she learned about the theft of Bland's television . She testified that she
confronted Brown with her concerns and told him to remove the set from
Kemp's apartment. Soon thereafter, according to Kemp, he and Brown hauled
the television set to a spot outside of town on Lampton Lane where they
dumped it on the side of the road. Palmer, Kemp's companion at the time,
confirmed Kemp's testimony that Brown had brought the television to their
apartment early one morning and that a few weeks later he and Kemp had
hauled it away. She testified that before removing the set, Brown had wiped it
with bleach and covered it with a baby blanket. Although the police did not
discover a television at the place Kemp said he and Brown had left it, two
residents of that area testified that in late March or early April of 2000 they
found a television matching the description of Bland's set lying beside Lampton
Lane and hauled it to the dump .
The Commonwealth's proof also included witnesses-Eddie Ingram,
Archie Lane, and Stephanie McClain-who testified that Brown had confessed
to the killing. Ingram, one of Brown's friends, testified that several months
after the killing, Brown "just kind of said that he did it." Ingram and Lane,
another friend, both testified that a third friend, Shane Hughes, had told them
that Brown had confessed to him . Lane testified that according to Hughes,
Brown had said, "If you don't believe I did it, go by and the back door will be
open." This statement was particularly significant, because the person who
discovered Bland's body had indeed found the back door open, but the police
had never made that fact public . Lane also testified that when he asked Brown
how his case was going, Brown said that he might be alright if everybody would
quit talking. McClain testified that her boyfriend, another of Brown's friends,
told her that Brown had confessed to the killing to him.
The Commonwealth's third line of proof included forensic witnesses
whose analysis of one of the murder weapons, the tire iron, had isolated a
mixed DNA sample to which Brown was a very likely contributor . The DNA
analyst testified that one of the contributors to the mixture was a male, that
both Bland and Brown were potential contributors, and that the odds that a
person chosen at random from the United States' population would be a
contributor were 1 in 40,000.
The Commonwealth also played for the jury a video recording of Brown's
testimony during his Adair County trial . During that testimony Brown
admitted that in November of 2000, he had falsely told an investigating
detective that Jerry Kemp and his brother, Joseph Kemp, had told him, Brown,
that they had stolen a television set from a woman and that in the course of
the theft things "had gotten rough ." Brown claimed to have fabricated the story
in retaliation for the Kemps' allegations against him.
To counter this formidable evidence, Brown sought to show that the first
group of witnesses were testifying falsely because they bore a grudge against
his uncle; that the second group, all of whom had legal problems of their own,
were testifying falsely in exchange for favors from the Commonwealth ; and that
the third group, the forensic witnesses, were not certain that his DNA was on
the tire iron, and even if it was they could have placed it there themselves by
mishandling the various exhibits given to them for analysis.
As noted, the jury was persuaded by the Commonwealth's proof and
found Brown guilty of all three charges. Brown raises numerous errors on
appeal . His first contention is that because he was sentenced to life
imprisonment without the possibility of parole for twenty-five (25) years and
not to death at his first trial, the Commonwealth was precluded from seeking
the death penalty against him at retrial .
ANALYSIS
I . Brown's Aggravated Sentence of Life Without the Possibility of Parole
for 25 Years at the First Trial Was a Finding That the Commonwealth
Had Not Proved That Death Was the Appropriate Penalty and it
Precluded the Death Penalty at Any Subsequent Trial for the Same
Capital Offense.
Under Kentucky law, murder is a capital offense. KRS 507 .020(2) . This
means that in prosecutions for murder the Commonwealth is authorized to
seek the death penalty, and, if it does, a murder conviction calls into effect KRS
532 .025 . That statute lists various circumstances tending to aggravate or to
mitigate the offense and provides that a defendant convicted of a capital crime
may be sentenced to death if, but only if, at the conclusion of a presentence
hearing, the finder of fact-the jury-finds the existence of at least one of the
listed aggravating circumstances and determines, after considering all the
evidence in aggravation and in mitigation, that death is the appropriate
punishment. Viewing this process, and more particularly, the jury instructions
employed in the sentencing process in this case, in light of controlling Double
Jeopardy Clause precedent, we are convinced that after Brown's first trial
concluded with a verdict fixing his punishment at the aggravated sentence of
life without the possibility of parole for twenty-five (25) years, the
Commonwealth was precluded from seeking the death penalty a second time .
Because this conclusion departs from, indeed overrules, Commonwealth v.
Eldred, 973 S .W.2d 43 (Ky. 1998), and Salinas v. Payne, 169 S .W .3d 536 (Ky.
2005), we must address in some detail the evolution of controlling United
States Supreme Court precedent with regard to this issue .
In Bullington v. Missouri, 451 U .S. 430 (1981), the United States Supreme
Court held that capital sentencing schemes that require the finder of fact to
make specific findings, if death is to be imposed, in addition to those findings
required for conviction of the underlying crime itself, implicate the Double
Jeopardy Clause of the Fifth Amendment. That Clause commands that "[n]o
person shall . . . be subject for the same offense to be twice put in jeopardy of
life or limb." In Bullington, the Court concluded that a defendant who emerged
from his first capital trial with a sentence of life without parole for fifty (50)
years could not be subjected a second time to the death penalty when a retrial
was necessitated by virtue of improprieties in the composition of the jury .
While North Carolina v. Pearce, 395 U.S . 711 (1969) recognized that generally
there is no double jeopardy bar to retrying a defendant who has successfully
challenged his conviction, the "clean slate" rationale is "inapplicable whenever
a jury agrees or an appellate court decides that the prosecution has not proved
its case." Bullington, 451 U .S . at 443 . This holding was a logical extension of
both Burks v. United States, 437 U .S . 1 (1978), which held that a defendant
could not be retried if his conviction was reversed because of insufficient
evidence, and Green v. United States, 355 U .S. 184 (1957), which held that
conviction of a lesser-included offense operates as an implied acquittal of the
greater offense.
By enacting a capital sentencing procedure that
resembles a trial on the issue of guilt or innocence
Missouri explicitly requires the jury to determine
7
whether the prosecution has "proved its case ." Both
Burks and Green, as has been noted, state an
exception to the general rule relied upon in North
Carolina v. Pearce. That exception is applicable here,
and we therefore refrain from extending the rationale
of Pearce to the very different facts of the present case.
Chief Justice Bardgett, in his dissent from the ruling
of the Missouri Supreme Court majority, observed that
the sentence of life imprisonment which petitioner
received at his first trial meant that "the jury has
already acquitted the defendant of whatever was
necessary to impose the death sentence ." 594 S .W.2d,
at 922 . We agree .
451 U.S. at 445 .
Three years later, in Arizona v. Rumsey, 467 U.S . 203 (1984), the
Supreme Court confronted a case in which a trial judge's finding of no
aggravating circumstances and judgment imposing a life sentence without
parole for twenty-five (25) years had been set aside and, following remand on
other grounds, the sentencing judge then found a different aggravating
circumstance and imposed the death sentence . Affirming the Arizona Supreme
Court's holding that the death sentence violated the Double Jeopardy Clause
as construed in Bullington, supra, Justice O'Connor wrote :
The double jeopardy principle relevant to respondent's
case is the same as that invoked in Bullington : an
acquittal on the merits by the sole decisionmaker in
the proceeding is final and bars retrial on the same
charge . Application of the Bullington principle renders
respondent's death sentence a violation of the Double
Jeopardy Clause because respondent's initial sentence
of life imprisonment was undoubtedly an acquittal on
the merits of the central issue in the proceedingwhether death was the appropriate punishment for
respondent's offense . The trial court entered findings
denying the existence of each of the seven statutory
aggravating circumstances, and as required by state
8
law, the court then entered judgment in respondent's
favor on the issue of death. That judgment, based on
findings sufficient to establish legal entitlement to the
life sentence, amounts to an acquittal on the merits
and, as such, bars any retrial of the appropriateness of
the death penalty .
467 U .S . at 211 .
A different, but related, issue arose two years later in Poland v. Arizona,
476 U .S . 147, 148 (1986), when the Supreme Court considered whether there
was a double jeopardy bar to further capital proceedings "when, on appeal from
a sentence of death, the reviewing court finds the evidence insufficient to
support the only aggravating factor on which the sentencing judge relied, but
does not find the evidence insufficient to support the death penalty." In that
case, the trial judge had found the state's "especially heinous, cruel or
depraved" aggravating circumstance present and imposed the death sentence
on two defendants, but the Arizona Supreme Court deemed the evidence
insufficient to satisfy that particular aggravator . Reversing and remanding for
an error in the guilt phase, the Arizona Supreme Court held the defendants
nonetheless could be subjected on remand to the death penalty because there
was ample evidence that the murder was for "pecuniary gain," another
aggravator under Arizona law. After the death penalties imposed were
subsequently affirmed by the Arizona Supreme Court, the United States
Supreme Court upheld them as well, distinguishing Bullington and Rumsey:
At no point during petitioners' first capital sentencing
hearing and appeal did either the sentencer or the
reviewing court hold that the prosecution had "failed
to prove its case" that petitioners deserved the death
9
penalty. Plainly, the sentencing judge did not acquit,
for he imposed the death penalty. While the Arizona
Supreme Court held that the sentencing judge erred in
relying on the "especially heinous, cruel, or depraved"
aggravating circumstance, it did not hold that the
prosecution has failed to prove its case for the death
penalty.
Bullington indicates that the proper inquiry is whether
the sentencer or reviewing court has "decided that the
prosecution has not proved its case" that the death
penalty is appropriate.
476 U.S . at 154-55 (emphasis in original) .
Over a decade later, in Eldred, supra, the Kentucky Supreme Court
confronted for the first time the double jeopardy implications of Kentucky's
capital sentencing scheme and, relying on Bullington and Rumsey, found no bar
to a defendant being sentenced to death following a second trial despite having
received a sentence of life without the possibility of parole for twenty-five (25)
years at the conclusion of his first trial. The fourjustice majority concluded
that Bullington sprang from two sources, Burks and Green, supra, and thus the
first issue was whether there was sufficient evidence introduced to justify the
death penalty in Eldred's first trial. Because the first jury had found the
statutory aggravating factor of "murder for hire" under the "beyond a
reasonable doubt" standard, the majority concluded that "the prosecution had
carried its burden that death was an appropriate sentence ." Eldred, 973
S.W .2d at 47 . Moreover, the majority concluded there had been no implied
acquittal (the Green premise of Bullington) of the death penalty in the first trial
10
because, unlike the sentencing schemes in Arizona and Missouri which give a
sentencing judge or jury a bilateral choice of either death or life without parole
for a specified number of years, in Kentucky "[e]ven if the jury finds the
existence of an aggravating factor, the jury must still recommend a sentence
within the entire range of possible sentences."
532 .030(4)
973
S .W .2d at
47 .
Indeed, KRS
does provide that even in cases where the death penalty is
authorized, the jury may recommend not only the three aggravated sentences
(death, life without parole, and life without parole for twenty-five
(25)
years),
but also the sentences associated with non-aggravated murders, i.e., life or a
term of not less than twenty
view of the
Eldred
(20)
nor more than fifty (50) years. Thus, in the
majority, no "implied acquittal" of the death penalty could be
read into the first jury's verdict.
However, as Chief Justice Stephens wrote in strong dissent for three
justices, the
Eldred
majority's approach really centered on the fact that in
Missouri the jury had only two sentencing options for an aggravated murder,
whereas in Kentucky there was a perceived wide range of options. Focusing
instead on the "hallmarks of a trial on guilt or innocence" language in
Bullington,
the dissent identified the four factors present in that case which
also applied to
Eldred: (1)
a bifurcated sentencing proceeding with (2) the
burden on the state to prove beyond a reasonable doubt that death was the
appropriate sentence, (3) with the state having produced evidence in an effort
to meet that burden in the separate proceeding, and, finally, (4) guidance for
the jury in its deliberations about penalty. Significantly, Chief Justice
Stephens identified the very flaw in the majority's analysis which commands
our re-evaluation:
To obtain a death penalty for Eldred, the
Commonwealth had the burden of proving two things
beyond a reasonable doubt, (1) the existence of an
aggravating factor, and (2) that Eldred should be
sentenced to death. The jury found beyond a
reasonable doubt that the aggravator of murder for
hire existed . Most significantly, the jury was further
instructed, "[i]f upon the whole case you have a
reasonable doubt whether the Defendant should be
sentenced to death, you shall instead fix his
punishment at a sentence of imprisonment."
In my view, and according to Bullington, the jury
acquitted Eldred of the death penalty when it fixed his
punishment for murder at a sentence of imprisonment
for life without benefit of probation or parole until he
has served a minimum of 25 years.
973 S .W .2d at 49 .
This Court revisited Eldred in Salinas, supra, but found no reason to
question its position despite the then-recent decision in Sattazahn v.
Pennsylvania, 537 U .S . 101, 106 (2003), a case in which a capital jury
deadlocked and the sentencing judge imposed a life sentence as required by
state law. The Sattazahn Court, with Justice Scalia writing, found no double
jeopardy bar in that scenario because the jury had not "acquitted" the
defendant; its deadlock was a "non-result" that could not "fairly be called an
acquittal `based on findings sufficient to establish legal entitlement to the life
sentence ." 537 U.S at 109 (citing Rumsey, supra, 467 U .S . at 211) . Justice
12
Scalia further noted that the life sentence imposed by the sentencing judge
(again as required by state law when a capital jury deadlocked) was also not an
acquittal. Notably, five members of the U .S. Supreme Court agreed with these
conclusions giving them the weight of a majority opinion. However, the portion
of Sattazahn quoted by the Kentucky Supreme Court in Salinas, for the
proposition that the critical point is whether the first jury made findings "that
`constituted an `acquittal' of the aggravating circumstances" actually comes
from Part III of Justice Scalia's opinion, a part in which only Chief Justice
Rehnquist and Justice Thomas joined .' In that section of the opinion, Justice
Scalia. opined that after Apprendi v. New Jersey, 530 U .S . 466 (2000) clarified
the need for jury findings on every element of a criminal offense and Ring v.
Arizona, 536 U.S . 584, 609 (2002) established that the aggravators that make a
defendant death-eligible "operate as the `functional equivalent of an element of
a greater offense,` it naturally followed that murder plus an aggravating factor
"is a separate offense from `murder' simpliciter." 537 U. S. at 111-12 (emphasis
in original) . In support of this minority position, Justice Scalia maintained
that the focus is on whether the defendant was acquitted of the aggravating
circumstance at the first trial . The remainder of Justice Scalia's Sattazahn
opinion, which a majority of the Court did join, was not so narrowly focused .
In only one other instance is there reference to an acquittal being synonymous
In Salinas, 169 S .W.3d at 539, the opinion references the "crucial" language from
Sattazahn as appearing at 537 U .S . at 109, which is in the majority portion of
Justice Scalia's opinion . In fact, the language quoted in Salinas comes from 537
U.S. at 112, Part III of the Sattazahn opinion to which only three justices
subscribed .
13
with a failure to prove an aggravator and that occurs in a description of
Rumsey, a case in which the defendant's acquittal did in fact occur when the
government failed to establish an aggravating circumstance beyond a
reasonable doubt . See 537 U .S. at 108.
In essence, the majority holding in Sattazahn is simply that "the
touchstone for doublejeopardy protection in capital-sentencing proceedings is
whether there has been an 'acquittal ."' 537 U.S. at 109. That is the import of
Bullington and its progeny and that is what compels our decision today .
Whatever uncertainty may have existed about the contours of an "acquittal" in
post-conviction capital sentencing prior to Sattazahn, it is now clear that is not
simply and solely about the state's failure to prove an aggravating
circumstance beyond a reasonable doubt in the first trial . Instead, as Justice
O'Connor wrote in Rumsey, 467 U .S . at 211 : "[A] judgment, based on findings
sufficient to establish legal entitlement to the life sentence, amounts to an
acquittal on the merits and, as such, bars any retrial of the appropriateness of
the death penalty ." Justice O'Connor's concurring in part and concurring in
judgment opinion in Sattazahn reiterates this point as well as Poland's simple
observation that a defendant is acquitted of the death penalty "when the
sentencer 'decide[s] that the prosecution has not proved its case that the death
penalty is appropriate ."' 537 U .S . at 117 . That is what happened here.
In the capital sentencing phase of Brown's first trial, the Commonwealth
had the burden of proving an aggravating circumstance and it successfully met
14
that burden, with the jury finding that Bland's murder was committed while
Brown was engaged in the commission of first-degree burglary and first-degree
robbery. However, under the penalty phase instructions, as in Eldred, the jury
was charged as follows: "If upon the whole case you have a reasonable doubt
whether the Defendant should be sentenced to death, you shall instead fix his
punishment at a sentence of imprisonment ."'' The Commonwealth did not
prove its case on this second issue and the jury acquitted Brown of death
under the doublejeopardy principles enunciated in Bullington and its progeny
when they opted for one of the only other two options, i. e., life imprisonment
without the possibility of parole for twenty-five (25) years .
As the Commonwealth correctly notes, this result is contrary to our
holdings in Eldred, and Salinas, which provide that
[a]n "implied acquittal" of the death penalty occurs
only where the jury or reviewing court affirmatively
finds that the Commonwealth has failed to prove the
existence of an aggravating circumstance . If the jury
has found that evidence of an aggravating
circumstance was proven beyond a reasonable doubt,
but nonetheless imposes a sentence of less than
death, the Commonwealth simply cannot be precluded
on double jeopardy grounds from seeking the full
range of penalties, including death, on retrial .
2 Our standard capital-sentencing jury instructions have long admonished the jury
with respect to reasonable doubt just as Brown's first jury was instructed : "if upon
the whole case you have a reasonable doubt whether the Defendant should be
sentenced to death, you shall instead fix his punishment at a sentence of
imprisonment ." See, Cooper and Cetrulo, Kentucky Instructions to Juries, Criminal §
12 .08 5th ed. (2009) . As Justice Cunningham correctly notes in his concurring
opinion, KRS 532.025 does not expressly require that the jury determine beyond a
reasonable doubt that death is the appropriate sentence . Accordingly, a majority of
this Court concludes that juries in capital cases should not receive the instruction
set forth in § 12.08 . To the extent Parrish v. Commonwealth, 121 S .W .3d 198 (2003)
suggests otherwise, it is hereby overruled .
15
Salinas, 169 S.W.3d at 539 . We have reconsidered that holding and are
convinced post-Sattazahn that not only is it not the correct reading of
Bullington and its progeny but, furthermore, it ignores the jury's finding,
beyond a reasonable doubt, that death was not appropriate "upon the whole
case" presented in the first trial.
Eldred and Salinas also fail to distinguish the fundamental difference
between the death penalty, on the one hand, and any sentence of
imprisonment, on the other . In Salinas, we reiterated the concern expressed in
Eldred that
[t]aken to its extreme, the implied acquittal theory
results in any sentence being an implied acquittal of
any higher sentence . . . . We reject any such outcome
out of hand. Thus, had Eldred's jury returned a
recommendation of 20 years' imprisonment, this
recommendation would not have been an implied
acquittal of a term of years greater than 20 or an
implied acquittal of life . Nor would it have been an
implied acquittal of Life-25, even though a sentence of
Life-25, like the death penalty, requires a written
finding of the existence of a least one aggravating
factor beyond a reasonable doubt.
Salinas, 169 S.W.3d at 538 (quoting from Eldred, 973 S .W.2d at 48) . In fact,
however, the death penalty is the only sentence in Kentucky for which jury
instructions have routinely been given directing the jury to determine its
propriety beyond a reasonable doubt.3 The death penalty, moreover, is the
only sentence the United States Supreme Court has held implicates double
jeopardy concerns . There is no risk, therefore, that the Green implied acquittal
3 As noted in footnote 2, a majority of the Court concludes the reasonable doubt
16
theory might be "taken to an extreme" and applied so as to foreclose on retrial
any sentence less severe than death.
In sum, the implicit finding in Brown's first trial that death was not
appropriate, pursuant to a reasonable doubt instruction, amounted to an
acquittal on the merits of that question and thus barred reconsideration of the
death penalty at his retrial. To the extent that Eldred and Salinas hold
otherwise, they are hereby overruled . Because Brown was impermissibly
subjected to the death penalty at his retrial, we must reverse that portion of the
Warren Circuit Court's judgment sentencing him to death and remand for new
penalty proceedings .
II. Ordinary Standards of Review Apply to What is Now a Non-Capital
Case.
The fact that Brown was improperly sentenced to death and will not be
subject to the death penalty on retrial affects slightly our review of his
contention that he was erroneously convicted . As this is no longer a capital
case, Brown's other assertions of error will be reviewed under our ordinary
standards of review. Meadows v. Commonwealth, 550 S .W.2d 511 (Ky. 1977) .
In particular, preserved evidentiary and other non-constitutional errors will be
deemed harmless under RCr 9.24 and Kotteakos v. United States, 328 U.S . 750
(1946) if we can say with fair assurance that the judgment was not
substantially swayed by the error. Our inquiry is not simply "whether there
was enough [evidence] to support the result, apart from the phase affected by
instruction appearing at § 12.08, Kentucky Instructions to Juries, Criminal, is not
required by Kentucky law and should not be given in the future .
17
the error. It is rather, even so, whether the error itself had substantial
influence . If so, or if one is left in grave doubt, the conviction cannot stand ."
Id. at 765; Winstead v. Commonwealth, 283 S.W .3d 678 (Ky . 2009) . As to those
preserved constitutional errors which are subject to harmless error review, they
must be shown to be "harmless beyond a reasonable doubt" in order to be
deemed harmless . Id. at 689 n.1 (citing Chapman v. California, 386 U.S . 18
(1967) .
Unpreserved errors will be reviewed under RCr 10.26, the substantial or
palpable error rule, pursuant to which an unpreserved error justifies relief only
if it is plain, clearly prejudicial, and rendered the proceedings manifestly
unjust. Commonwealth v. Jones, 283 S .W .3d 665 (Ky. 2009) . With these
preliminaries stated, we turn to Brown's other assertions of error.
III . Brown's Jury Was Properly Selected .
Brown contends that the trial court made several errors during the
course of jury selection . He maintains that two venirepersons, A and B, should
have been struck as biased in favor of the Commonwealth but were not . He
maintains that two venirepersons, C and D, were improperly struck for cause
on the ground that they were biased against the death penalty. He maintains
that the trial court abused is discretion under Batson v. Kentucky, 476 U.S . 79
(1986) when it upheld the Commonwealth's peremptory strike of an African
American venireperson . And, finally, Brown maintains that the trial court
abused its discretion when it dismissed from the venire an African-American
panel member who arrived at the courthouse on. the morning of general voir
dire with alcohol on his breath and in his system .
Jury selection in criminal cases in Kentucky is governed by RCr 9 .30
through RCr 9 .40 and Part Two of the Administrative Procedures of the Court
of Justice . Under these provisions the trial court is vested with broad
discretion to oversee the entire process, from summoning the venire to
choosing the petit jury which actually hears and decides the case. Fields v.
Commonwealth, 274 S .W.3d 375 (Ky. 2008) ; Soto v. Commonwealth, 139 S .W.3d
827 (Ky . 2004) . Our review of the rulings Brown challenges is thus limited to ,
determining whether the trial court abused that discretion, that is, whether the
ruling can be characterized as arbitrary, unreasonable, or contrary to sound
legal principles . Commonwealth v. English, 993 S.W .2d 941 (Ky. 1999) .
Because none of the challenged rulings amounted to an abuse of the trial
court's discretion, Brown is not entitled to relief on these grounds .
A. The Trial Court Did Not Abuse its Discretion by Denying Brown's
Motion to Strike For Cause Two Venirepersons on the Ground of
Bias .
Under the Sixth and Fourteenth Amendments to the United States
Constitution and Section 11 of the Kentucky Constitution, a criminal
defendant is entitled to an impartial jury . To help protect that right, RCr 9 .36
mandates that "[w]hen there is reasonable ground to believe that a prospective
juror cannot render a fair and impartial verdict on the evidence, that juror
shall be excused as not qualified ." In making this determination, the trial
court is to consider the prospective juror's voir dire responses as well as his or
her demeanor during the course of voir dire, and is to keep in mind that
generally it is the totally of those circumstances and not the response to any
single question that reveals impartiality or the lack of it. "Impartiality," we
reiterated recently in Shane v. Commonwealth, 243 S.W .3d 336, 338 (Ky. 2007),
"is not a technical question but a state of mind ." Indeed, notwithstanding a
prospective juror's responses during voir dire, whatever his or her protestations
of lack of bias, the juror's close relationship, "be it familial, financial or
situational, with any of the parties, counsel, victims or witnesses," is sufficient
to require the court "to sustain a challenge for cause and excuse the juror ."
Marsch v. Commonwealth, 743 S .W .2d 830, 833 (Ky . 1988) (citing Ward v.
Commonwealth, 695 S .W.2d 404 (Ky. 1985) ; internal quotation marks omitted) ;
Montgomery v. Commonwealth, 819 S .W.2d 713 (Ky. 1991) . This is so because
however sincere and well-meaning such prospective jurors may be, such close
personal relationships are apt "subconsciously [to] affect their decision in the
case." Marsch, 743 S.W.2d at 834 . See also, Ratliff v. Commonwealth, 194
S .W .3d 258 (Ky. 2006) (collecting cases in which we have held that bias should
have been presumed) .
It is this presumptive bias, Brown contends, that required prospective
jurors A and B to be excused. During individual voir dire, juror A
acknowledged that she worked as a Bowling Green police officer and that her
work brought her into contact with the . Warren County Commonwealth
20
Attorney's office and the state police . She acknowledged further that she had
worked previously as a federal law enforcement agent and had taught other
agents investigation techniques as well as how to give testimony in court .
Finally, she acknowledged that her father and her brother had both worked
extensively in law enforcement, including service as Kentucky State Police
troopers . In response to questioning by the court and both parties concerning
her ability to assess the credibility of police officers as she would any other
witness, she stated that she was well aware that police officers could testify
falsely or mistakenly and that her training had impressed upon her the
importance of treating an officer's testimony no differently than anyone else's.
Arguing that juror A's personal and family connection with law enforcement
rendered her implicitly biased in favor of the Commonwealth, Brown moved to
have her struck for cause . The trial court denied the motion in light of the
juror's evident awareness of the realities of police testimony and her manifest
respect for fair proceedings . Brown then used a peremptory challenge to
remove juror A. Brown contends that notwithstanding prospective juror A's
protestations of impartiality, her manifold connections with law enforcement
were apt subconsciously to make her favor the Commonwealth and its police
officer witnesses. We disagree .
We have many times held that "the mere fact that a person is a current
or former police officer is insufficient to warrant removal for cause. . . .
Additional evidence of bias must be shown." Mills v. Commonwealth, 95 S.W.3d
21
838, 842 (Ky. 2003) (citing Young v. Commonwealth, 50 S .W.3d 148 (Ky . 2001) .
Similarly, we have held that a close relationship to a police officer does not,
standing alone, give rise to a presumptive bias. Penman v. , Commonwealth, 194
S .W.3d 237 (Ky. 2006) (wife of former officer) . We have required, rather, such
additional evidence of bias as the prospective juror's personal acquaintance
with the officers involved in the investigation of the case being tried, or his
assertion during voir dire that police officers are less apt than other witnesses
to lie because they take their oaths more seriously . Shane, supra.
Here there is no such additional evidence of bias. Prospective juror A
had no personal acquaintanceship or relation with the Adair County
Commonwealth Attorney who tried this case, or with any of the police officers
who investigated it or were to testify in it. Nor did prospective juror A betray
any tendency to lend heightened credence to police testimony. On the
contrary, she frankly acknowledged that police officers could lie or be mistaken
and expressed a very clear awareness of the jury's responsibility to consider all
the testimony impartially . The trial court did not abuse its discretion by ruling
that prospective juror A was not disqualified merely by the facts that she
worked as a police officer and was related to other officers .
At the close of prospective juror B's individual voir dire examination, she
advised the court that about a year previously she had been the victim of a
burglary. Her house had been broken into when no one was home, and
various household items had been stolen . Although she }dad been only
22
marginally involved in the subsequent investigation, she was aware that two
individuals had been charged with the offense, that one of them had already
been sentenced, and that the other was awaiting sentencing. In response to
questions about the effect of this incident on her ability not to prejudge
Brown, who was alleged to have committed a burglary, she stated that her own
experience would not color her judgment and that she understood that Brown's
case was to be decided solely on the basis of the evidence presented during
trial . Brown moved to have prospective juror B struck on the ground that as a
victim of a crime similar to one of the alleged crimes, she was apt to harbor a
subconscious bias against him. Again, relying on prospective juror B's
demeanor, her candor in volunteering the information about her personal
experience, and her answers to the questions put to her, the trial court denied
the motion. As with juror A, Brown used a peremptory challenge to remove
juror B .
The trial court's decision was not an abuse of discretion . As with police
officers, the mere fact that a prospective juror has been the victim of a crime
similar to the crime being tried does not by itself imply a disqualifying bias.
Additional evidence of bias is required . Woodall v. Commonwealth, 63 S .W .3d
104 (Ky. 2001) ; Hodge v. Commonwealth, 17 S.W.3d 824 (Ky. 2000) ; Sanders v.
Commonwealth, 801 S.W .2d 665 (Ky. 1990) . Obvious factors bearing on the
likelihood of bias are the similarity between the crimes, the length of time since
the prospective juror's experience, and the degree of trauma the prospective
23
juror suffered. It is the totality of all the circumstances, however, and the
prospective juror's responses that must inform the trial court's ruling. Here, a
year had passed since prospective juror B's relatively non-traumatic
experience, circumstances lending credence to her unhesitating assertion that
she could base her decision in Brown's case on the evidence presented . Given
those facts and the absence of any countervailing evidence, the trial court did
not abuse its discretion by refusing to strike prospective juror B.
Finally, even if the trial court had abused its discretion with respect to these
two jurors, it is doubtful that Brown would be entitled to relief. The trial court
gave Brown extra peremptory challenges (a total of fourteen) but allowed the
Commonwealth only the nine peremptory challenges required by RCr 9 .40 .
Whether a defendant's receipt of "extra" challenges not accorded to the
Commonwealth avoids the deprivation of a substantial right discussed in
Shane, supra, is a question best left for another case where it is potentially
dispositive . 4
B. The Trial Court Did Not Abuse its Discretion When it Struck Two
Venirepersons as Biased Against the Death Penalty.
Brown next contends that the trial court improperly struck two
venirepersons, prospective jurors C and D, on the ground that because of their
4
"To shortchange a defendant in this manner (failing to grant a proper for cause
strike) is to effectively give the Commonwealth more peremptory challenges than the
defendant ." Shane, 243 S .W.3d at 339 . Although we need not decide whether the
change applies retroactively to this case, we should also note that Shane has been
modified by Gabbard v. Commonwealth, 297 S .W.3d 844, 854 (Ky. 2009), which now
clarifies that the defendant must identify jurors who would have been challenged
and removed if the defendant had not been required to use a peremptory challenge
on the juror(s) who the trial court erroneously failed to strike for cause .
24
reservations concerning the death penalty they could not give due
consideration to the full range of potential sentences to which Brown was
subject. As the parties correctly note, the United States Supreme Court
recently reviewed its precedents in this area and found them to establish at
least the following four principles :
First, a criminal defendant has the right to an
impartial jury drawn from a venire that has not been
tilted in favor of capital punishment by selective
prosecutorial challenges for cause . . . . Second, the
State has a strong interest in having jurors who are
able to apply capital punishment within the framework
state law prescribes . . . . Third, to balance these
interests, a juror who is substantially impaired in his
or her ability to impose the death penalty under the
state-law framework can be excused for cause, but if
the juror is not substantially impaired, removal for
cause is impermissible . . . . Fourth, in determining
whether the removal of a potential juror would
vindicate the State's interest without violating the
defendant's right, the trial court makes a judgment
based in part on the demeanor of the juror, a
judgment owed deference by reviewing courts .
Uttecht v. Brown, 551 U .S . l, 9 (2007) (citations omitted) . The distinction the
trial court must make under these principles is not the simple one between
potential jurors who oppose and those who favor capital punishment . It is the
much more difficult distinction between potential jurors whose opposition to,
or whose reservations about, capital punishment would "prevent or
substantially impair the performance of [their] duties as . . . juror[s] in
accordance with [their] instructions and [their] oath." Wainwright v. Witt, 469
U .S . 412, 424 (1985) (citation and internal quotation marks omitted), and
25
potential jurors whose reservations about capital punishment are as serious,
perhaps, but who are capable, nevertheless, of considering capital punishment
in circumstances where the General Assembly has deemed it an appropriate
potential sentence . Both kinds of potential jurors are apt to respond
equivocally to voir dire questions about their ability to consider capital
punishment"I don't know." "It depends ." "That would be hard ."-and it is
the trial court's difficult task to distinguish between potential jurors whose
equivocation reflects merely careful thinking and a strong sense of
responsibility in the face of such an important decision and those jurors whose
equivocation signals an impaired ability to abide by the jury instructions and to
give to capital punishment the consideration Kentucky law requires . Because
this distinction will often be anything but clear and will hinge to a large extent
on the trial court's estimate of the potential juror's demeanor, the decision is
one particularly within the trial court's discretion and is subject to reversal on
appeal only for an abuse thereof. Uttecht, supra .
Potential juror C conceded during voir dire that she would have trouble
considering the death penalty. In response to questions by defense counsel,
she stated that she was not categorically opposed to capital punishment and
could imagine circumstances in which she would favor it, but she made clear,
nevertheless, that those circumstances would be extreme and that even having
heard all the evidence she would find the death penalty hard to consider .
Brown maintains that the trial court abused its discretion when it struck
26
potential juror C for cause, because she stated that she would not rule out
capital punishment per se . As noted, however, the standard is not whether the
potential juror would never consider capital punishment, but whether her
reservations about it are such as to "substantially impair" her ability to
consider it. Juror C candidly acknowledged that in all but the most extreme
cases she would find the death penalty "hard to consider." The trial court
could reasonably find such a limited ability to consider capital punishment
"substantial impairment," and thus it did not abuse its discretion by striking
potential juror C for cause.
Potential juror D presents a somewhat more difficult case . When the
court initially asked whether he could consider the death penalty, potential
juror D responded that he did not know, that capital punishment would be a
hard decision, and that he could not know how he would decide until
presented with all the facts . He repeated, "l don't know," several times when
asked if he could consider the death penalty. He also made clear, however,
that he was not opposed to the death penalty, per se, and three times stated
that the evidence might be such that there would be "no problem" with
imposing it. Given these equivocal responses, the Commonwealth attempted to
pin potential juror D down by asking him whether he could sign the death
verdict were the jury to decide on capital punishment and were he to be elected
the jury's foreperson . Juror D replied that signing the verdict would be
"tough," that he would not volunteer for that role, and that he hoped he would
27
not be put in that position . He did not say, however, that he would refuse to
sign the verdict or that that was something he would not be able to do.
In striking juror D for cause, the trial court referred to his reluctance to
sign the verdict, but focused primarily on his repeated uncertainty as to
whether he could consider the death penalty . In the court's view, that
uncertainty disqualified potential juror D . Brown contends that the
Commonwealth's question regarding whether potential juror D could sign a
death verdict was improper, since it deviates from the United States Supreme
Court's carefully balanced standard for assessing juror qualification in this
area. The trial court abused its discretion, Brown maintains, by allowing that
question and by taking potential juror D's response into consideration. The
trial court also abused its discretion, Brown contends, by striking potential
juror D. In Brown's view, when potential juror D said that he did not know
whether he could consider the death penalty, he meant only that it was a
weighty decision which he would not know how to make until he had heard the
evidence, the sort of serious but open-minded response that the Supreme
Court has indicated does not conflict with the State's interest in a jury capable
of dutifully following its instructions and abiding by its oath .
Again, we are convinced that the trial court did not abuse its discretion .
We agree with Brown that there is nothing talismanic about the
Commonwealth's jury foreman/ death verdict question. The standard for
disqualifying a potential juror is whether the juror's views substantially impair
28
his or her ability to consider capital punishment in circumstances where the
General Assembly has allowed for it. Jurors are under no duty to serve as
foreperson, and a potential juror's discomfort with that role, especially when
confronted with it out-of-the-blue during voir dire, sheds little light on the
question of his or her ability to consider capital punishment . Here, for
example, potential juror D's responses that he would find the foreperson role
"tough" and would not volunteer for it, added little to the responses he had
already given when asked directly if he could consider the death penalty. The
trial court appropriately gave the foreperson/death verdict questions little
weight.
The trial court did not, however, abuse its discretion by allowing those
questions. In addition to identifying potential jurors who, for one reason or
another, are disqualified, voir dire is meant to assist the parties identify those
potential jurors to be struck peremptorily . The trial court has broad discretion
in allowing or limiting such questioning . Fields, 274 S.W .3d 392-93. The
Commonwealth's foreperson questions, which were not calculated to elicit a
potential juror's commitment to some specific view of the evidence, were well
within that discretion .
Nor did the trial court abuse its discretion by striking potential juror D
for cause. Although Brown's interpretation of potential juror D's uncertainty
about his ability to consider the death penalty is plausible, that is, that it was
merely the caution of a responsible person unsure until he had heard the
29
evidence whether capital punishment should be imposed, the question is not
whether Brown's interpretation is reasonable but rather whether the trial
court's interpretation was unreasonable . It was not .
Potential juror D indicated that the question of capital punishment was
for him exceedingly morally fraught and that he would not know until actually
confronted with the decision how his feelings would sort themselves out.
Although he may have meant, as Brown contends and as some of potential
juror D's statements suggest, that his hesitation did not concern capital
punishment itself but only its propriety under the facts of the case, he also
made statements suggesting that, when faced with the actual decision, he
might find capital punishment too enormous a penalty even to consider. In
response to one of the Commonwealth's questions, for example, he agreed that
his ability to consider the death penalty was "impaired." At another point when
asked if he could consider it, he said, "I don't know. I might have a problem or
I might not." And, as noted above, virtually every time he was asked directly
whether he could consider the death penalty, he said, "I don't know ." Thus,
although potential juror D's responses were equivocal and ambiguous, they
could lead a reasonable person to conclude that he was substantially impaired
in his ability to consider the death penalty. The trial court cannot be said,
therefore, to have abused its discretion in making that determination .
Indeed, as the United States Supreme Court emphasized in Uttecht,
supra, assessing the potential juror's demeanor plays an important role in
30
determining the potential juror's qualification, and this is especially so where
the potential juror equivocates as earnestly as did potential juror D . The trial
court is in the best position to make that assessment, of course, which is
another reason in close cases such as this one to defer to that court's
judgment .
C. The Trial Court Did Not Violate Batson When it Upheld the
Peremptory Strike of an African-American Venireperson .
Brown next contends that the jury selection process was tainted and his
Fourteenth Amendment right to equal protection violated when the
Commonwealth used one of its peremptory strikes to excuse a potential juror,
juror E, on the basis of her race. Brown, who is an African-American, was
accused of murdering a Caucasian woman . Following the removal of potential
jurors for cause, there remained a venire of forty individuals, four of whom
where African-Americans . The defense used a peremptory challenge as to one
of those African-Americans ; the prosecution used a peremptory challenge as to
one ; one of the African-Americans was removed by lot; and one served on the
jury that ultimately sentenced Brown to death . In response to the
prosecution's peremptory challenge, Brown, citing Batson v. Kentucky, supra,
asserted that the strike was discriminatory and moved for a hearing at which
the Commonwealth would be required to proffer a race-neutral reason for
removing one of the African-American venirepersons.
As is now familiar, Batson provides a three-step process whereby trial
courts are to adjudicate claims that peremptory juror challenges were based on
31
race
First, a defendant must make a prima facie showing
that a peremptory challenge has been exercised on the
basis of race[; second, if that showing has been made,
the prosecution must offer a race-neutral basis for
striking the juror in question[ ; and third, in light of
the parties' submissions, the trial court must
determine whether the defendant has shown
purposeful discrimination.
Snyder v. Louisiana, 552 U.S . 472, 476-77 (2008) (citations and internal
quotation marks omitted) . At the first stage, the opponent of the strike need
only show "that the totality of the relevant facts gives rise to an inference of
discriminatory purpose." Johnson v. California, 545 U .S . 162, 168 (2005)
(citation and internal quotation marks omitted) . If that showing is made, the
burden then shifts to the strike's proponent to present a race-neutral
explanation for removing the juror in question . "Although the prosecutor must
present a comprehensible reason, the second step of this process does not
demand an explanation that is persuasive, or even plausible; so long as the
reason is not inherently discriminatory, it suffices ." Rice v. Collins, 546 U.S .
333, 338 (2006) (citations and internal quotation marks omitted) . The
proponent having articulated a non-invidious reason for the strike, "the
question presented at the third stage of the Batson inquiry is whether the
defendant [the strike's opponent] has shown purposeful discrimination ."
Snyder, 552 U .S . at 484-85 . In making that determination, the trial court is to
consult "all of the circumstances that bear upon the issue of racial animosity,"
Snyder, 552 U.S. at 478, including the proponent's demeanor in explaining the
32
strike, the inherent plausibility of that explanation, inconsistencies in the
treatment of the stricken juror and similarly situated jurors outside the
suspect class, and any history the proponent may have of using peremptory
challenges invidiously. Snyder, supra; Miller-El v. Dretke, 545 U .S . 231 (2005) .
Whether the proponent discriminated is a question of fact, and we review the
trial court's ultimate finding under the clearly erroneous standard . Johnson,
supra. Reviewing courts have also been enjoined, however, to consult "all the
circumstances" bearing upon racial animosity, notwithstanding the fact that "a
retrospective comparison of jurors based on a cold appellate record may be very
misleading when alleged similarities were not raised at trial ." Snyder, 552 U .S.
at 483 .
Here, Brown purported to meet his prima facie burden by noting merely
the racial circumstances of the alleged crime and the fact that the prosecutor
had struck one of the four remaining African-American venirepersons . His
argument, in essence, was that any strike of an African-American venireperson
gives rise to an inference of discrimination if the defendant is AfricanAmerican . In response, the Commonwealth noted that the defense, too, had
struck one of the African-American panel members, and asserted that his
peremptory challenge of only one of the four did not constitute prima facie
evidence of discrimination . In addition, he explained that potential juror E had
expressed serious misgivings about the death penalty, stating that she did not
want that type of responsibility and probably could not sign a death verdict .
33
The Commonwealth reminded the court that it had moved to have potential
juror E struck for cause, and that in denying the motionjuror E stated that
despite her misgivings she could consider the death penalty for a sufficiently
serious crime-the trial court had referred the Commonwealth to its
peremptory challenges . Brown adduced no other circumstances tending to
suggest that the Commonwealth's explanation was pretextual or that its strike
of juror E was discriminatory, and the court not only found in the
Commonwealth's favor on the discrimination question, but ruled that Brown
had failed even to meet his prima facie burden.
On appeal, Brown invites us, as he did not invite the trial court, to
compare the strike of potential juror E with the Commonwealth's treatment of
several white panel members who also expressed reservations about the death
penalty, but whom the Commonwealth did not strike. Two of these other
potential jurors in particular elicited unsuccessful motions for for-cause
strikes, but were not then struck peremptorily, as was juror E . Although these
additional facts could reasonably be thought to give rise to an inference of
discrimination, and thus would likely have satisfied Brown's prima facie
burden, in the circumstances of this case we are not convinced that they
compel a finding of discrimination . In the first place, Brown's failure to adduce
these comparisons at trial denied the Commonwealth an opportunity to provide
racially neutral explanations for them. There are, after all, non-racial
differences between juror E and the jurors the Commonwealth did not strike
34
that may, from the Commonwealth's point of view, have been telling. Both of
the other panel members who elicited for-cause motions, for example,
answered the Commonwealth's voir dire question about signing the death
verdict by saying that although they would find it difficult they could do that.
Potential juror E, on the other hand, stated that she doubted that she could
sign a death verdict. Her response could have made juror E stand out in the
Commonwealth's mind as someone particularly likely to thwart its efforts to
secure a death sentence .
Moreover, although in Snyder and Miller-El the Supreme Court noted that
a prosecutor's inconsistent treatment of similarly situated venirepersons can be
an important factor in identifying a discriminatory peremptory strike, in those
cases the disparate treatment was clear and was only one factor among others
tending to suggest discrimination . The prosecutors in those cases struck all or
nearly all of the African-American panel members, and in both cases their
explanations for at least some of the strikes were highly implausible. Here, on
the other hand, it is not clear from the undeveloped record that juror E was
treated disparately, the Commonwealth did not seek to remove a high
proportion of the African-American panel members, and its explanation for the
strike ofjuror E-her serious reservations about the death penalty-was
entirely plausible. In these circumstances we cannot say that the trial court
clearly erred by finding the peremptory challenge of potential juror E nondiscriminatory, and this is so even in light of the comparisons with other panel
35
members that Brown did not give the trial court an opportunity to consider .
D. The Trial Court Did Not Abuse its Discretion by Dismissing a
Venireperson Who Reported For Duty Smelling Strongly of Alcohol.
Finally with respect to the selection of the jury, Brown contends that the
trial court abused its discretion when it dismissed potential juror F from the
venire. On the morning that group voir dire was to begin, after several days of
individual voir dire, a bailiff reported to the court that potential juror F "reeked"
of alcohol. The court informed the parties, and in their presence questioned
potential juror F. The juror denied having consumed any alcohol that morning,
but admitted having drunk some beer the previous night. He was given a
breath test, which registered 0 .037, a breath-alcohol concentration not strongly
indicative of alcohol intoxication. Cf.. KRS 189A .010 (for the purposes of the
DUI laws, a person with a breath-alcohol concentration less than 0 .05 is
presumed not to be under the influence of alcohol.) . A bailiff testified, however,
that while he was leading juror F from the court house to the jail to administer
the breath test, he observed juror F having difficulty following directions . He
also observed juror F's eyes at close range and saw that they were dilated . In
the bailiff's opinion, juror F was under the influence of something, if not
alcohol then something else .
Because juror F's breath test did not establish that he had consumed
alcohol that morning, the court did not hold him in contempt . It did, however,
dismiss juror F from the venire, explaining that in its view a potential juror's
appearance in court with a strong odor of alcohol on his breath manifested so
36
pronounced a lack of respect for the court and its processes and such a high
degree of unreliability as to render the juror unqualified for service . Brown
objected to the dismissal. Although counsel noted that potential juror F was
an African-American, he disavowed in the next breath any suggestion that the
dismissal was racially motivated . He objected to the dismissal, however,
because juror F's breath test did not establish that juror F was under the
influence of alcohol or that he had broken any law. On appeal, Brown
attempts to characterize juror F's dismissal as "troubling" because of juror F's
race, but as noted trial counsel expressly waived any claim that the dismissal
had to do with race .
Nor did the trial court abuse its discretion by dismissing potential juror
F. Part II of the Administrative Procedures of the Court of Justice concerns
jury selection and management . Section 17 of that Part authorizes the trial
court to hold in contempt any potential juror "who fails to give attention at
court, or . . . who otherwise fails to complete jury service." This section confers
upon the trial court discretion to manage the jury selection process and to
punish by holding in contempt jurors who interfere with that process through
lack of attention or otherwise. This discretion includes the authority to impose
the lesser sanction of dismissal for serious breaches of the court's decorum
where, as here, the breach raises significant concerns that the potential juror
cannot be relied upon to serve attentively and non-disruptively. Juror F's
appearance in court smelling strongly of alcohol, his dilated eyes, and his
37
apparent disorientation while being led to the jail raised such concerns and
justified the trial court's decision to dismiss him from the venire . There was no
abuse of discretion .
IV. The Trial Court Committed No Reversible Evidentiary Errors .
We turn next to Brown's numerous claims of evidentiary error. As errors
of admission, he challenges the Commonwealth's use of his testimony from the
previous trial, its DNA evidence, its cross-examination of him concerning his
numerous tattoos, its use of depictions of the crime scene and of autopsy
photographs, and its introduction of hearsay statements during the testimonies
of Stephanie McClain and Jerry Kemp. He contends that the trial court erred
by excluding evidence of a note written to Bland shortly before her death, by
limiting the cross-examination of Bland's boyfriend, and by excluding evidence
that Jerry and Joseph Kemp were involved in the theft of a television from
another woman about a year after Bland's murder . We review a trial court's
evidentiary rulings for abuse of discretion, Walker v. Commonwealth, 288
S.W.3d 729 (Ky. 2009), and subject to the harmless and palpable error rules
discussed above .
A. The Trial Court Did Not Abuse its Discretion by Admitting Brown's
Testimony From His First Trial. The Court's Failure to Redact
Hearsay Portions of that Testimony Was Error but Harmless.
As noted above, during its case-in-chief the Commonwealth moved to
play for the jury the video recording of Brown's testimony during his first trial.
In that testimony Brown admitted being familiar with Bland's residence
because one of his aunts had lived there ; that he was unemployed in January
2000 ; and that he could not account for his whereabouts during the nights of
January 10, 11, and 12, the period in which the murder occurred . And, as
noted above, he admitted having falsely accused the Kemp brothers of being
involved in the crime . Defense counsel objected on the ground that the
recording would amount to compelled testimony in violation of Brown's Fifth
Amendment privilege not to testify against himself. Counsel also argued both
that the recording was unduly prejudicial, because it made apparent the fact
that Brown had previously stood trial, and also that portions of the recording
were irrelevant or unduly prejudicial, because they referred to witnesses and
testimony presented at the first trial but not at the second. When the trial
court indicated that in its view the Fifth Amendment did not bar the recording,
counsel moved to have the allegedly prejudicial and irrelevant portions
redacted . The court denied that motion and permitted the Commonwealth to
play the recording of Brown's prior testimony in its entirety . Brown maintains
that the trial court erred by refusing to limit the Commonwealth's use of the
recording to rebuttal and by refusing to redact twelve references to the prior
trial, three references Brown made to having been incarcerated, and three
references to witnesses who either did not testify at Brown's second trial at all
or who did not testify at the second trial about an incident raised at the first
trial. Although we agree with Brown that the trial court erred by refusing to
$ Although Brown sought redaction of the other matters about which he complains on
appeal, he did not seek redaction of the references to Cheryl Haskins's hearsay
statements discussed infra.
39
redact portions of Brown's prior testimony, we are convinced that the error was
harmless .
1. Brown's Prior Testimony Was Not Barred Either by the
Constitution or by the Rule Against Hearsay.
As the Commonwealth correctly notes, in Harrison v. United States, 392
U.S . 219, 222 (1968), the United States Supreme Court recognized the "general
evidentiary rule that a defendant's testimony at a former trial is admissible in
evidence against him in later proceedings ." The Court explained that "[a]
defendant who chooses to testify waives his privilege against compulsory selfincrimination with respect to the testimony he gives, and that waiver is no less
effective or complete becauge the defendant may have been motivated to take
the witness stand in the first place only by reason of the strength of the lawful
evidence adduced against him." 1d. Numerous federal and state decisions
support, reiterate, and develop that rule. See, e.g., United States v. Duchi, 944
F .2d 391
(8th
Cir. 1991) ; United States v. Mortensen, 860 F.2d 948 (9th Cir.
1988) ; United States v. Bohle, 475 F.2d 872 (2nd Cir. 1973) ; State v. Low, 192
P .3d 867 (Utah 2008) ; State v. McCoy, 692 N .W.2d (Iowa 2005) ; State v.
Castonguay, 590 A. 2d 901 (Conn. 1991) . See also, W. E. Shipley, Use in
Subsequent Prosecution of Self-incriminating Testimony Given Without
Invoking Privilege, 5, A.L.R.2d 1406 (1949 of 1977 Supp.) . These cases reflect
that unless a defendant's prior testimony was unconstitutionally compelled,
that testimony may be introduced as substantive evidence against the
defendant at a subsequent trial without running afoul of the constitutional
40
privilege against self-incrimination .
Our law has long been in accord . Bess v. Commonwealth, 118 Ky. 858,
82 S .W. 576 (1904) . In Sherley v. Commonwealth, 889 S .W.2d 794, 798 (Ky .
1994), we noted that "[o]nce the defendant decides to . . . testify in open court,
he waives his Fifth Amendment privilege. There was nothing improper about
introducing the prior testimony at the second trial ." The substantive use of
Brown's first-trial testimony was not precluded, therefore, by the Fifth
Amendment.
Nor was Brown's first-trial testimony precluded by the rule against
hearsay. KRE 801A(b)(1) provides that "[a] statement is not excluded by the
hearsay rule, even though the declarant is available as a witness, if the
statement is offered against a party and is: . . . The party's own statement, in
either an individual or a representative capacity." Brown's own first-trial
statements could thus be used against him notwithstanding the fact that they
were hearsay.
2. The Use of Brown's Prior Testimony Was Subject to the Rules
of Relevance and While Redactions Should Have Been Made,
Any Violation of the Relevance Rules Was Harmless .
As Brown correctly notes, however, the fact that his first-trial testimony
was not excluded either by the Constitution or by the hearsay rules does not
mean that it was admissible . The recording of Brown's previous testimony, like
all other evidence, was still subject to the rules of relevance, under which
irrelevant evidence is not to be admitted, KRE 402, and relevant evidence may
41
be excluded if, among other reasons, it is so unduly prejudicial that its
prejudicial effect substantially outweighs its probative value . KRE 403 . See
Aliotta v. National Railroad Passenger Corp., 315 F.3d 756, 763 (7th Cir. 2003)
(Rule 403 "clearly applies" to party-opponent admissions .) ; Williams v. Drake,
146 F.3d 44, 48
(1St
Cir. 1998) ("Even an admission by a party-opponent is
subject to exclusion under Rule 403 .") ; LaSota v. Corcoran, 583 P .2d 229, 238
(Ariz. 1978) ("[`F]ormer testimony' must also meet the tests of relevancy and
absence of overriding prejudice.") . We agree with Brown, therefore, that the
trial court erred by failing to subject Brown's first-trial examination and
testimony to the rigors of the relevance rules . We are convinced, however, that
the error was harmless .
We reject, first, Brown's contention that the first-trial evidence was to be
sanitized of all reference to the fact that Brown had been tried before . He has
cited no case in which such a rule was discussed, much less applied . Instead,
he refers us to two cases, one a pretrial publicity case and the other a jury
instruction case, in which the jury or members thereof were expressly informed
that the defendant had previously been convicted of the current charge and
was being retried as a result of evidentiary error .6 In both cases the court held
that expressly informing the jury that another jury had found the defendant
guilty of the present charge was so inherently prejudicial as to amount to
reversible error. We need not decide how we would address such a case, for
United States v. Williams, 568 F.2d 464 (5th Cir. 1978) ; Arthur v. Bordenkircher, 715
F.2d 118 (4th Cir. 1983) .
42
the situation before us is significantly different. Brown does not contend that
his second jury was informed of either his prior conviction or the reason for his
retrial. Absent such an express invasion of the jury's independence, the fact
that the jury may have been aware that Brown was being retried no more
infringed upon his right to be presumed innocent than does the jury's
awareness that the defendant was arrested, indicted, and put on trial. Hodge
v. Commonwealth, 17 S .W.3d 824 (Ky. 2000) (citing Tamme v. Commonwealth,
973 S.W.2d 13 (Ky. 1998) (no presumption of prejudice arises from the mere
mention of a prior trial where the jury was not informed of prior conviction and
sentence .) . As we observed in Romans v. Commonwealth, 547 S .W.2d 128 (Ky.
1977), there is no doubt that a defendant is prejudiced to some extent by the
mere facts that he has been indicted and brought to trial . That prejudice is
neither unreasonable nor unfair, however, and does not provide a basis for
relief, because it is an inevitable part of the criminal process.
Likewise, when a defendant succeeds in having his conviction overturned
and his case retried, it is very likely, if not inevitable, that the fact of retrial will
in some way be brought to the jury's attention. In this case, for example, one
of the first-trial witnesses, Katherine Williams, was unavailable at the time of
the second trial, and the video recording of her testimony was played in its
entirety by agreement of the parties . Even had the express references to the
jury been redacted from Brown's recorded testimony, moreover, the second jury
was sure to have realized that he had been tried previously from his appearing
43
on the witness stand and from the nature of the questions put to him. Any
consequence so inherently a part of the criminal process, even if some element
of prejudice attaches to it, cannot provide grounds for relief because the
prejudice cannot be deemed unfair or unreasonable . Cf. State v. Cook, 135
P.3d 1147, 1158 (Kan. 2006) (jurors' awareness "of a previous conviction for
the same crime is not inherently prejudicial .") ; State v. Albert, 381 So .2d 424,
428 (La. 1980) (prosecutor's reference to prior trial but not to conviction did not
necessitate a mistrial.) . Although the trial court would certainly have been
within its discretion had it granted Brown's motion to redact his prior
testimony so as to minimize reference to the first trial, its refusal to do so was
no less within its discretion. Had Brown wished to ensure that the jury did not
use the fact of his prior trial against him, he could have requested an
admonition to that effect. Absent such a request, the trial court's refusal to
redact jury references from Brown's first-trial testimony does not entitle Brown
to relief.
We also reject Brown's contention that three references he made during
his first-trial testimony to having been incarcerated should have been redacted
pursuant to KRE 404(b), the rule that generally excludes evidence of other
crimes, wrongs, or acts when offered as mere character evidence. We need not
decide the applicability of the rule, for even if the incarceration references
should have been redacted, the trial court's refusal to do so was clearly
harmless . As Brown himself testified during his direct examination, he is and
44
was at the time of trial a convicted felon, a fact the Commonwealth was entitled
to elicit . That he had been incarcerated, therefore, added very little to what the
jury learned anyway, and did not, we are convinced in light of the entire case,
substantially sway its judgment . Winstead, supra (citing Kotteakos, 328 U .S . at
765) .
We agree with Brown, finally, that the trial court erred when it failed to
redact portions of his first-trial testimony in which he was asked about matters
not in evidence at the second trial . Brown identifies three such instances
during his first-trial examination. We may illustrate the problem with this
evidence by discussing one of them . At Brown's first trial, the Commonwealth
offered testimony from Cheryl Haskins, a woman who lived with a third Kemp
brother or half-brother, Rashad Slater, in the same apartment complex as
Jerry Kemp, to whom Brown delivered the television set. Haskins testified that
after Brown delivered the television set he spent the night with her and told her
that the television was a Christmas present from him, Brown, to the Kemps .
During Brown's direct examination at his first trial, counsel paraphrased
Haskins's testimony and asked Brown to comment. He denied having given a
television to the Kemps or having said that he had to Cheryl Haskins . During
Brown's first-trial cross-examination the prosecutor also referred to Haskins's
testimony and asked Brown whether he knew of any motive Haskins might
have to lie . Brown replied that Haskins was aligned with the Kemps .
The problem here is that, whereas at the first trial the jury heard
45
Haskins's own testimony, which the attorneys could then cross-examine and
comment upon, at the second trial the evidence the jury heard about Haskins
came not from her or from any other second-trial witness, but from the
attorneys' questions on the recording, which in effect introduced Haskins's
hearsay statements . KRE 804(b)(1) excepts from the hearsay rule "[t]estimony
given as a witness at another hearing of the same or a different proceeding,"
but only if "the declarant is unavailable as a witness," and "the party against
whom the testimony is now offered . . . had an opportunity and similar motive
to develop the testimony by direct, cross, or redirect examination ." The burden
of establishing these conditions rests with the proponent of the evidence, St.
Clair v. Commonwealth, 140 S .W .3d 510 (Ky. 2004), and here the
Commonwealth made no attempt to show that Haskins was unavailable to
testify. Even had that burden been met, moreover, the proper method for
introducing Haskins's former testimony would have been to replay it for the
jury, not to introduce counsels' summaries of it during their examination of
Brown . While this was a violation of the hearsay rule, Brown did not draw it to
the trial court's attention by requesting redaction and it does not approach
palpable error.
The same hearsay error occurred with respect to first-trial testimony by
Joseph Kemp and Eddie Ingram to the effect that Brown had threatened them
at about the time that the police seemed to be focusing their attention on
Brown . That evidence was not presented at the second trial, and again the jury
46
learned of it only when Brown's first-trial testimony was replayed and the
attorneys mentioned it during their examinations of him. Although these
portions of Brown's first-trial testimony should have been redacted, we find the
error harmless .
As noted above, at Brown's second trial Jerry Kemp, Charlene Palmer,
and Barbara Slater all testified that Brown had delivered to Kemp and Palmer a
television similar to the one stolen from Bland's residence . They also testified
that Brown disposed of the television when it appeared that the police had
connected it to Bland's murder. Haskins's claim that Brown told her the set
was a gift to the Kemps was merely cumulative of that testimony and was
neither so damning nor so sensational on its own that it could have swayed the
jury's findings. Also, as Brown notes, in the course of his first-trial testimony
Brown was revealed to have had an affair with Haskins . At the second trial,
Brown testified that he had fathered a child as a result of a casual relationship
with a woman he saw for only a couple of months. Thus, his sexual
relationship with Haskins is not likely to have influenced much the jury's
impression of his character or on its own to have affected the jury's decision.
Similarly, the improper evidence that Brown threatened Eddie Ingram
and Joseph Kemp was cumulative of Lane's testimony quoting Brown as saying
that he "might be fine if people would quit talking," and the alleged threats
were not such that on their own they would have swayed the jury. Brown was
alleged to have verbally threatened Ingram and to have thrown a basketball at
47
Kemp . That evidence is not likely to have aroused the jury's passions against
Brown or to have seemed so probative as to bear significantly on the judgment .
In any event, Eddie Ingram testified in the second trial and was available for
cross-examination on this issue . In sum, although the trial court erred when it
refused to apply the rules of relevance to the recording of Brown's first-trial
testimony and to redact portions of that testimony, the error was harmless and
thus does not entitle Brown to relief.
B. The Trial Court Did Not Abuse its Discretion by Admitting the
Commonwealth's DNA Evidence .
Brown next challenges the Commonwealth's DNA evidence, an issue
which, with one exception regarding statistical matters discussed below, was
not preserved at trial and which is now reviewable, again with the exception of
the one preserved statistical issue, only for palpable error, RCr 10.26 .
Although Brown does not address the DNA issue extensively, we examine it in
some detail because unreliable DNA evidence would be clearly prejudicial and
would have rendered Brown's trial manifestly unjust.
As noted above, the state's forensic examiners isolated what the DNA
analyst characterized as a mixed DNA sample from the non-bloody end of the
tire iron used to kill Sherry Bland. The analyst testified that one of the
contributors to the sample was male and that both Sherry Bland and Brown
were potential contributors . The analyst further testified that the odds of
choosing a potential contributor at random from the United States population
were about 1 in 40,000 . Brown contends that the analyst's results in this case
48
were insufficiently probative to be admitted into evidence, and that even if the
results were admissible the Commonwealth exaggerated their significance in a
manner calculated to mislead the jury when it introduced Ad.air County census
data meant to suggest that the county's population was too small to allow for a
potential contributor other than Brown . Brown concedes that his first
contention regarding the admissibility of the DNA analysis was not preserved .?
He did object at trial to the admission of the census data. Notwithstanding
that objection, the Commonwealth maintains that because Brown did not raise
either issue in his first appeal, the admissibility of the DNA evidence and the
census data has become the "law of the case," and is not now subject to review .
Our discussion of these issues, therefore, begins with a consideration of the
related doctrines of "law of the case" and "waiver."
l . The Law-Of-The-Case Doctrine Applies Only to Questions
Actually Decided.
"Law of the case" refers to a handful of related rules giving substance to
the general principle that a court addressing later phases of a lawsuit should
not reopen questions decided by that court or by a higher court during earlier
phases of the litigation . Wright, Miller, and Cooper, Federal Practice and
Procedure, § 4478 (2002) . One of the rules, for example, the so-called mandate
rule, provides that on remand from a higher court a lower court must obey and
give effect to the higher court's express or necessarily implied holdings and
instructions . Id. Buckley v. Wilson, 177 S .W .3d 778 (Ky. 2005) . Where
Brown did not challenge the reliability or admissibility of the DNA evidence at either
his first or second trial.
49
multiple appeals occur in the course of litigation, another law-of-the-case rule
provides that issues decided in earlier appeals should not be revisited in
subsequent ones. Wright, Miller, and Cooper, supra; Inman v. Inman, 648
S .W .2d 847 (Ky. 1982) . These rules serve the important interest litigants have
in finality, by guarding against the endless reopening of already decided
questions, and the equally important interest courts have in judicial economy,
by preventing the drain on judicial resources that would result if previous
decisions were routinely subject to reconsideration .
Law of the case is a prudential doctrine, however, not a jurisdictional
one. "Law of the case directs a court's discretion, it does not limit the
tribunal's power." Arizona v. California, 460 U.S . 605, 618 (1983) ; Sherley v.
Commonwealth, 889 S .W.2d 794 (Ky. 1994) . As such, the doctrine is subject to
exceptions . A court is not bound by the doctrine, for example, where there has
been an intervening change in the law . Id. An appellate court, moreover, may
deviate from the doctrine if its previous decision was "clearly erroneous and
would work a manifest injustice." Arizona v. California, 460 U .S . at 618 n. 8 .
Although in general the law-of-the-case doctrine applies only to matters
the merits of which an appellate court has decided, Davis v. Island Creek Coal
Company, 969 S.W.2d 712 (Ky. 1998), an extension of the core law-of-the-case
doctrine is the rule that precludes an appellate court from reviewing not just
prior appellate rulings, but decisions of the trial court which could have been
but were not challenged in a prior appeal . In Commonwealth v. Schaefer, 639
50
S .W .2d 776, 777 (Ky . 1982), this Court held that an appellate court "has no
power on a second appeal to correct an error in the original judgment which
either was, or might have been relied upon in the first appeal ." In addition to
inaccurately characterizing the law of the case as a limitation of the appellate
court's "power" as opposed to a prudential restraint on its discretion, Schaefer
also mischaracterized this extension of the doctrine as part of the law-of-thecase doctrine . Unlike the core law-of-the-case doctrine, however, this
extension barring issues not raised in a prior appeal is more accurately
understood as a type of waiver. This is so because the extension hinges not on
a previous appellate decision on the barred issue establishing the law of the
case, but instead on the party's inaction in failing to raise the issue in a
manner consistent with the court's general policy against piecemeal appeals .
Crocker v. Piedmont Aviation, Inc., 49 F.3d 735 (D .C . Cir. 1995) . It is this
waiver extension of the law-of-the-case doctrine that the Commonwealth would
erect here against review of its DNA evidence, but the waiver rule applies only
where a "ruling of law is made based on existing law and that ruling has gone
unchallenged during the original appeal." Sherley, 889 S.W.2d at 798 . See
also Crocker, 49 F.3d at 741 n . 2 ("The waiver rule . . . applies only when the
trial court has expressly or impliedly ruled on a question and there has been
an opportunity to challenge that ruling on a prior appeal . . . . If the trial court
has not affirmatively ruled, the waiver doctrine would be inapplicable .") . Here,
the Commonwealth has failed to show that at Brown's first trial the trial court
51
ruled upon the questions Brown now raises concerning the propriety of the
Commonwealth's DNA evidence, and thus the waiver rule does not restrain our
review.
2. To The Extent That Errors May Have Occurred in the
Presentation of the Commonwealth's DNA Evidence, the Errors
Were Either Harmless or Were Not Preserved and Have Not Been
Shown to Have Been Palpable .
As noted above, Brown failed to preserve most of the issues implicated by
his appellate challenge of the Commonwealth's DNA evidence . Thus, we review
the unpreserved aspects of this challenge only for palpable error pursuant to
RCr 10.26.
The Commonwealth's DNA analyst testified that using what have become
standard techniques and kits for analyzing DNA samples, she analyzed
samples taken from Bland and Brown, from Joseph and Jerry Kemp, from
John Thompson, a friend of Brown, and from Eugene Strode, Bland's
boyfriend. She then compared the profiles obtained from these known samples
with the profiles she obtained from samples collected during the course of the
investigation, including blood samples removed from both the knife and the tire
iron, a blood sample taken from Strode's coveralls, a sample collected from
Bland's fingernails, and the sample obtained from the non-bloody end of the
tire iron . She testified that the blood from Strode's coveralls was Strode's and
that except for the sample from the non-bloody end of the tire iron, all the
samples collected from Bland and from the crime scene yielded profiles
matching Bland's.
52
To account for these conclusions, the analyst explained that DNA-short
for deoxyribonucleic acid-is a complex molecule present in all the tissues of
our bodies and hence recoverable from any type of cell-skin cells, blood cells,
cells present in saliva, semen, hair root cells, etc . Ninety-nine percent of the
DNA molecule is identical from person to person, she testified, but there are
locations along the molecule where our DNA sequences differ . The analysis she
performed, a now-standard analysis used by crime labs throughout the
country, isolated thirteen of those variable locations (loci) in the DNA sample,
copied the isolated sequences millions of times through a process known as the
polymerase chain reaction (PCR), and from the resulting magnified genetic
material determined which of the possible genetic variants was present at each
location or locus . 8 A profile, she testified, was the list of variants at all thirteen
sites . Two DNA profiles are said to match-as Bland's profile matched the
profile obtained from several crime-scene blood samples-if they are identical
at all thirteen locations. The significance of a "match", the analyst testified,
could be estimated from statistical data concerning the frequency with which
the possible variants at each site occur within a sample population . For
example, the analyst testified that the odds of choosing an unrelated person at
random from the United States population with Bland's profile were on the
order of 1 in 108 quadrillion, making it highly likely that the crime scene blood
s Although the analyst did not say so expressly, it appears that the tests she
employed examined the thirteen loci which have been adopted as a national
standard for use in the Combined DNA Identification System (CODIS) established by
Congress in 1994 .
53
samples came from Bland .
As noted, the analyst also testified that the sample isolated from the nonbloody end of the tire iron was mixed, that is a sample containing DNA from
more than one person. She did not explain how she reached that conclusion,
nor did she explain why she concluded that the sample came from two people
and not more . She did explain that in addition to the analysis of the thirteen
variable locations, she also conducted a standard procedure to determine
which sex chromosomes were present. That procedure yielded the presence of
one y-chromosome in the mixture, and since only males have a y-chromosome
she could conclude that one of the contributors to the mixture on the nonbloody end of the tire iron was male. She further testified that the successful
analysis of any of the thirteen variable locations depended on a sufficiently
intense indication of the variant present at that location. Analysis of a site that
does not exceed a certain threshold of intensity is deemed inconclusive for that
particular site, although there may be a weak indication of a particular variant.
For the mixed sample from the tire iron, six of the thirteen variable
locations yielded low-intensity, inconclusive results . Seven sites, however,
yielded sufficiently intense results for matching and statistical purposes . The
analyst testified, although again without explaining the reasons for her
conclusions, that the results from the seven statistically relevant sites were
such that neither Brown nor Bland could be excluded as a potential
contributor to the mixture.9 Nor could Brown be excluded as a potential
contributor if the weak indications from the six inconclusive sites were taken
into consideration . Although the analyst's testimony implicitly recognized
Bland to be one of the contributors to the mixture, she did not testify expressly
to that assumption, nor did she proffer any explanation about the difference
between mixtures in which separate profiles can be identified and those in
which separate profiles are not apparent. The analyst did testify, however, that
a different statistical calculation was applied to mixtures than to single source
samples, and that testimony suggests that, for statistical purposes at least, she
treated the mixture as incapable of division into separate profiles . The analyst
testified that on the basis of the seven sites (loci) yielding statistically
meaningful results, the odds of choosing a potential contributor at random
from the United States population were about 1 in 40,000 . Pressed by the
Commonwealth, the analyst agreed that this meant that one would expect to
have to test 40,000 people to find one potential contributor . The
Commonwealth then introduced, over Brown's objection, data from the 1990
United States census to the effect that the population of Adair County was
some 17,000 persons, roughly half of whom were male . The intended
implication, made express during the Commonwealth's closing argument, was
that out of every 40,000 persons only one would be a potential contributor to
the mixture, and Adair County did not have enough people to include a
potential contributor other than Brown and Bland .
This result is referred to in DNA literature as a "non-exclusion ."
55
Brown contends that the analyst's testimony was essentially that the
analysis of the mixture was inconclusive, to and he insists that inconclusive
DNA analyses have no probative value. He also contends that the
Commonwealth misrepresented the statistical significance of the 1 in 40,000
figure by purporting to relate it to irrelevant county census data . Although we
agree that the Commonwealth's statistical arguments were flawed, for the most
part, the challenge to the DNA evidence was not raised and hence not
preserved at trial . It provides a ground for relief, therefore, only to the extent
that it amounts to palpable error. Brown, of course, bears the burden of
establishing palpable error, and as he has failed to show whether and to what
extent he was prejudiced by the Commonwealth's statistical missteps, he has
not met that burden . To the extent that Brown did preserve this issue by
objecting to the introduction of the Adair County Census data, the error was
harmless .
a. The Commonwealth's DNA Evidence Was Sufficiently
Probative to be Admissible .
Before considering the statistics, we first reject Brown's contention that
the analysis of the DNA mixture from the non-bloody end of the tire iron was so
lacking in probative value as to be inadmissible . Although as noted the
to This is an incorrect characterization of the testimony . A DNA analysis that is
"inconclusive" is generally one that provides no information whatsoever due to an
insufficient sample, contamination or some other problem. See Commonwealth v.
Mathews, 882 N.E .2d 833, 844-45 (Mass. 2008) . In this case, the analyst testified
that DNA was sufficiently identifiable at seven of the thirteen loci to be replicated and
tested under the PCR method. The only "inconclusiveness" was at six loci where
there was not a sufficiently intense indication of the genetic variant for matching and
statistical purposes.
56
analyst's testimony was somewhat conclusory, the lack of detail did not render
her testimony meaningless . Numerous courts have addressed the scientific
reliability of PCR-based analyses of mixed DNA samples, as occurred here, and
have upheld the technique as providing reliable, probative evidence concerning
the composition of and potential contributors to such mixtures.
11
See, e.g.,
State v. Bander, 208 P.3d 1242 (Wash . App . 2009) ; Roberts v. United States,
916 A.2d 922 (D .C . 2007) ; United States v. Trala, 162 F.Supp.2d 336 (D . Del.
2001) . Cf. Commonwealth v. Mattei, 920 N .E.2d 845 (Mass . 2010) (DNA
evidence that defendant could not be excluded as a contributor to mixed
sample was more prejudicial than probative because there was no
accompanying testimony explaining the statistical relevance of the nonexclusion results .) Courts are divided on whether results, whether a "match"
or a "non-exclusion," must be accompanied by statistics explaining the
significance of the result in the relevant population, id. at 851-53, 12 but mixed
samples producing non-exclusion results are routinely deemed probative and
By contrast, Brown relies on three cases which do not even purport to address the
probativeness of PCR-based analyses of mixed DNA samples . Berry v. Detroit, 25
F.3d 1342 (6th Cir.1994) warns against "junk science" in the context of a 28 U .S.C.
§ 1983 case involving a retired sheriff's "expert testimony" about law enforcement
training and practices . Roush v. Pari-Mutuel Commission of State of Wyoming, 917
P.2d 1133 (Wyo . 1996), involved the exclusion of inconclusive horse DNA results
obtained at a race track after the winning horse's urine tested positive for banned
drugs . State v. Woodall, 385 S .E.2d 253, 259 (W .Va. 1989), did involve human DNA
but it was at a time when DNA testing was in its infancy and "no state's high court
[had] yet considered the use of DNA forensic tests" although the tests were accepted
in the scientific community . The DNA testing was excluded in Woodall, not for any
reason at all relevant to this case, but because the "laboratory wasn't able to isolate a
DNA print from the semen [taken from the rape victim] . There being nothing to
compare to the Defendant's DNA print, such evidence would not meet the general
relevance test for admission of evidence ." Id. at 260.
12 In Sholler v.
Commonwealth, 969 S.W.2d 706 (Ky. 1998), this Court held that DNA
11
57
admissible .
As these cases indicate, DNA analysis allows an analyst to isolate and
characterize the DNA segments that vary from person to person at the thirteen
polymorphic locations (loci) . These genetic variants are known as alleles. At
each of the thirteen locations, an individual has a pair of alleles, one inherited
from each biological parent. The pair of alleles may be different or it may be
the same, and it is the pattern of twenty-six alleles-two at each of the thirteen
locations-that constitutes an individual's profile . Two profiles are said to
"match" if all twenty-six alleles coincide. The analytic process identifies the
alleles present at each locus. Since each individual has no more than two
alleles at a locus, if the analysis reveals the presence at a given locus of more
than two alleles, it may be concluded that the sample being analyzed includes
DNA from more than one person, i. e., a mixed sample . Evidently that was the
case here . Because the analyst did not couch her explanation in terms of
alleles, it is not possible to know precisely what she meant when she testified
that the results for six of the locations were inconclusive . She may have meant
that at those locations no allele was measured with sufficient intensity, or she
may have meant that while some alleles appeared with sufficient intensity
some did not . In neither case would the inconclusiveness at those six locations
render the entire analysis inconclusive, as Brown contends .
At seven of the locations in the mixed sample from the tire iron, alleles
appeared with sufficient intensity to count for statistical purposes . Again,
match evidence was admissible even in the absence of accompanying statistics .
58
because the analyst did not testify that Brown's alleles appeared at those
locations, but only that those locations did not exclude Brown, one cannot tell
at first glance whether it was the presence of his alleles or merely the absence
of inconsistent alleles that made him a potential contributor. However, the
analyst did subsequently testify that on the basis of the seven statistically
significant locations, Strode, Thompson, and the Kemps could not have been
contributors, and the odds of randomly choosing a potential contributor were
significantly narrowed to 1 in 40,000. These facts make it clear that Brown's
alleles had to appear at several, if not all, of the seven significant locations .
Furthermore, the analyst testified, in effect, that at no location, even the
inconclusive ones, was there the presence, or even the suggestion, of an allele
inconsistent with Brown's being a contributor. The presence in the mixed
sample of DNA consistent with Brown's DNA and the absence of DNA ruling
him out, as the analyst testified, is clearly probative evidence linking Brown to
the murder weapon . Thus, despite the six inconclusive locations, the analysis
of the mixed sample yielded probative results which it was not error, much less
palpable error, for the trial court to admit
b. The Commonwealth's Statistical Errors Do Not Entitle Brown
to Relief.
DNA analysis, of course, never "conclusively" establishes that matching
profiles come from the same source. Such a match establishes only that the
known source is completely consistent with the unknown sample. The
significance of such a match depends on how common or rare the particular
59
DNA profile is in some population of interest, a fact that is estimated from data.
concerning how frequently the various alleles occur within the population.
State v. Bander, supra. Analysts often convey the significance of a match or, as
in this case, of a non-exclusion from a mixture, by calculating the probability
that an unrelated person chosen at random from the given population would
not be excluded. 13 As noted, the analyst testified in this case that the odds of
13
"Once crime-scene and known-source DNA samples have been typed and compared
and the forensic analyst has determined that the samples are sufficiently similar
such that they could have originated from the same source, the analyst must then
determine the statistical significance of the profiles . There are two widely recognized
statistical calculations that can be performed to convey the probative value of a DNA
profile typed according to the PCR-STR process . . . . DNA Advisory Board,
[Statistical and Population Genetics Issues Affecting the Evaluation ofthe Frequency of
Occurrence ofDNA Profiles Calculated from Pertinent Population Database(s), 2
FORENSIC SCI . COMM. NO., 3, %[f 17-18 (2000] . The first type of calculation
estimates the probability of exclusion (PE) or ,probability of a random match, which
expresses the probability that a random person has the same DNA profile as the
evidence profile or, in other words, the probability that a random person is not
excluded by the evidence . Given that the forensic analyst has concluded that a
suspect or known source is a possible contributor to the unknown sample in light of
the consistency between profiles, PE can be "regarded as an estimate of the answer
to the question : What is the probability that a person other than the suspect,
randomly selected from the population, will have this profile?" [Committee on DNA
Forensic Science : An Update, National Research Council, The Evaluation of
Forensic DNA Evidence] 127 [(1996) hereinafter NCR II] .
The PE calculation is based on the product rule. Using this rule, the analyst will
multiply the frequencies at which particular alleles appear at specific loci by each
other to determine the frequency with which the overall genotype of the tested
sample could be expected to appear in the population . The factors used in PE
calculations are derived from population databases that document the frequency
with which particular alleles appear across a number of loci. [The Washington]
Supreme Court illustrated the use of the product rule in a PE calculation :
For instance, allele A may be found in 1 of every 10 people; allele B found in 1 of 20;
and allele C found in 1 of 5. Under the product rule, if there is a match for each
allele, the expert can multiply (1/ 10 x 1/20 x 1/5) to achieve the result that only 1
person in 1,000 will match all three sites.
. . . . PE is typically expressed as 1 in X number of people that could have been the
source of the unknown sample .
The discriminating power of a PE calculation increases according to the number of
60
randomly choosing from the general population of the United States a potential
contributor to the tire iron mixture was 1 in 40,000. She did not explain, nor
was she asked, how she arrived at that figure. Assuming a United States
population of about 280,000,000, she further testified that one would expect
that population to contain about 7,000 potential contributors . In response to
one of the prosecutor's questions, the analyst agreed that one would need to
test 40,000 persons before expecting to find a potential contributor . The
Commonwealth then argued, as noted above, that because the population of
Adair County was only about 17,000 persons it was unlikely that the county
included a contributor other than Brown. Brown maintains that the county
loci at which matching alleles are reported . The greater the number of matching
loci, the greater the number of frequencies that can be multiplied, resulting in a
smaller overall probability . "The smaller that probability, the greater the likelihood
that the two DNA samples came from the same person." NCR II at 127 . Thus, a
very small probability strongly suggests "that either the two samples came from the
same person or a very unlikely coincidence has occurred ." NCR II at 127.
The product rule can be used in a PE calculation for an ambiguous mixed-source
sample, i.e., one whose contributors are not easily distinguishable as either major or
minor . But doing so involves an extra step that is not included in the application of
the product rule to a single-source sample or a sample where major and minor
contributors can be distinguished . The National Research Council explained in
1992 that "[i]f a suspect's pattern is found within the mixed pattern, the appropriate
frequency to assign such a `match' is the sum of the frequencies of all genotypes
that are contained within (i.e., that are a subject of) the mixed pattern ."
COMMITTEE ON DNA TECHNOLOGY IN FORENSIC SCIENCE, NATIONAL
RESEARCH COUNCIL, DNA TECHNOLOGY IN FORENSIC SCIENCE 59 (1992) . The
addition of multiple allelic frequencies at a specific locus captures the probability
that any one person could have contributed DNA to a sample with multi-allelic
markers. The combination of multiple frequencies results in a frequency sum that is
greater than that of the frequency for a single allelic pair. Because the resulting
greater factor will be used in the ensuing multiplication, the final product will also
be greater than if all of the frequencies had been individually multiplied by each
other . The end result is that the probability of a random match will correspondingly
be greater for a mixed-source sample than for a single-source sample . In other
words, it will be more likely that a random member of the population could have
contributed his or her DNA to the unknown evidence sample." Bander, 208 P.3d at
1249-50 (footnote omitted) .
61
population data was irrelevant and that the Commonwealth's argument based
on that data exaggerated the significance of the DNA evidence. Although we
agree with these contentions, they do not entitle Brown to relief.
As noted, DNA analysts frequently express the significance of their
results by observing that there is a 1 in X chance that a non-related member of
the reference population selected at random would be a potential source of the
evidentiary DNA sample. Apparently, this is not the same as saying that there
is a 1 in X chance that the evidentiary sample came from someone other than
the defendant. It is not the same as saying that there is a 1 in X chance that
the defendant is not guilty. It is not the same as saying that there is a 1 in X
chance that there exists another person who matches the defendant's profile .
And it is not the same as saying that X people would have to be tested before
one would expect to find another match. Jonathan J . Koehler, "Error and
Exaggeration in the Presentation of DNA Evidence at Trial," 34 Jurimetrics
Journal 21 (Fall 1993) . See also, McDaniel v. Brown,
U .S.
, 130 S . Ct.
665 (2010) . Although these erroneous extrapolations from the random match
statistic are not uncommon, in each instance the statistical error tends to
overstate to varying degrees the strength of the DNA evidence . Koehler, supra.
Where, as in this case, the evidentiary sample is a mixture of more than one
person's DNA, the calculation of the random match statistic, or perhaps more
accurately the random potential contributor statistic, is somewhat more
complicated than in the case of a single source sample . Again, however, the
62
use of the statistic in the mixed sample case has been widely upheld . See State
v. Bander, supra. Indeed, it appears that in the case of a mixed sample, that
statistic provides a conservative estimate of the probability of choosing a
potential contributor at random from the reference population. Id. (citing
Roberts v. United States, supra) . Hence, the 1 in 40,000 statistic for the tire
iron mixture versus the 1 in 208 quadrillion statistic for samples from various
items at the crime scene which matched Bland's profile and the 1 in 17 trillion
statistic for the sample from Strode's coveralls that matched Strode's profile .
While it appears that the Commonwealth may well have invited its DNA
analyst to testify inaccurately that 40,000 persons would have to be tested
before one would expect to encounter another potential contributor, Brown
posed no objection to this statement at trial and does not even now label it
palpable error. We conclude that it is not palpable error. And while the county
census data was clearly irrelevant to the statistical evidence as presented (since
that evidence was based on a random selection from the general United States
population and said nothing about the non-random selection of Adair County
residents), it is not at all apparent to what extent, if any, Brown was prejudiced
by these errors. Brown has utterly failed to demonstrate the statistical
significance of the errors or to show that accurate testimony would have been
meaningfully less damning than the testimony as given, particularly in light of
the conservative approach the analyst apparently took. Despite the errors,
moreover, the evidence indicated that Brown was far from the only possible
63
contributor to the mixture . Significantly, through cross-examination of the
analyst, Brown established that notwithstanding the Commonwealth's Adair
County census data, the 1 in 40,000 statistic did not rule out the possibility of
finding other potential contributors in Adair County . Under these
circumstances, introduction of the census data was harmless and, otherwise,
Brown has failed to meet his burden of showing that the Commonwealth's
statistical evidence amounted to a palpable error. Cf. McDaniel v. Brown,
supra, (explaining that testimony mistakenly stating the statistical significance
of a DNA match did not nullify the probative value of the DNA evidence) .
In summary, DNA evidence is powerful evidence and for that reason
material misrepresentations of its significance are apt to be prejudicial. Here,
however, where virtually no pertinent objection was raised at trial, Brown has
failed to show that in and of itself the Commonwealth's possible misstatement
of the statistical ramifications of the DNA evidence likely affected the verdict.
Whatever weight the jury may have given this evidence is far more likely the
legitimate effect of the proof that Brown's DNA was consistent with the DNA
mixture obtained from the tire iron and that the odds of randomly choosing a
potential contributor to the mixture were fairly narrow . Although we agree with
Brown, therefore, that the Commonwealth's presentation of its DNA evidence
was not flawless, he has failed to show that the flaws were prejudicial. To the
limited extent that Brown preserved one claim of error by objecting to the Adair
County Census data, that data, though irrelevant, was rendered harmless by
64
the analyst's express testimony that the 1 in 40,000 statistic did not rule out
the possibility of finding other potential contributors to the tire iron mixture in
Adair County.
C. The Trial Court Abused its Discretion by Permitting CrossExamination Concerning Brown's Tattoos, But With Respect to
Brown's Convictions the Error Was Harmless .
Bland's body was discovered on January 12, 2001, and later that same
day a Kentucky State Police detective opened the investigation . During the late
night or early morning hours between January 13 and 14, a Columbia City
police officer stopped Brown for an outstanding traffic violation, and in the
course of his interview noticed that the inside of Brown's left wrist bore cuts
and scratches. He passed that information on to the detective investigating
Bland's murder . On January 15, the detective interviewed Brown and
photographed the cut and scratches on Brown's wrist. At trial the
Commonwealth moved to introduce the photograph on the ground that the
scratches on Brown's wrist were consistent with the Commonwealth's theory
that Brown had lifted and carried Bland's bulky, 27-inch television. The
photograph also depicted a tattoo on the inside of Brown's left forearm . The
tattoo shows a demonic hand with its fingers clutching the earth and its middle
finger raised in a familiar gesture of contempt . Arguing that the tattoo was
unduly prejudicial, Brown objected to the photo, but the trial court overruled
the objection . The Commonwealth introduced the photo without referring to
the tattoo.
The tattoo again became an issue during Brown's testimony. The
Commonwealth's forensic examiners had testified that none of the several hairs
collected from Bland's residence matched Brown's. At the time of trial, Brown's
head was shaved. To counter the impression that his shaved head might
account for the absence of his hair from the crime scene, Brown's counsel
during direct examination introduced a photo of Brown from near the time of
the offense, when his head was not shaved, obviously to advance the defense
theory that he had hair which could have been shed had he been at the crime
scene . The photo had been cropped so as not to show Brown's arms, which
bear several tattoos. When counsel asked Brown if the photo accurately
represented his appearance in January 2001, he testified that it did but
volunteered that it failed to show his tattoos.
On cross-examination, the Commonwealth asked Brown to confirm that
he had tattoos, and when he did, the prosecutor asked him what the tattoos
said and represented. Defense counsel's objection was overruled, on the
ground that Brown's direct testimony had opened the door, and the prosecutor
proceeded to elicit descriptions of several of Brown's tattoos, 14 including the
demonic hand from the Commonwealth's prior exhibit. Asked what that tattoo
meant, Brown replied, "F
k the world." Under further questioning, Brown
described eleven more tattoos on his arms . They included his son's name, a
cross with his father's name, a dog, a six-point star, the word "untouchable",
14
None of the tattoos were displayed to the jury by Brown showing his arms. As
noted, the one tattoo was plainly visible on the photograph of Brown's wrist.
66
the phrase "only God knows why", his grandmother's name, a rose, the name of
his neighborhood, a skull and the word "respect." During closing argument,
the Commonwealth reminded the jury of three specific tattoos-the hand,
"untouchable", and the phrase "only God knows why"-and suggested that the
phrase referred to Bland's murder and that together the three tattoos conveyed
the attitude of one capable of such an apparently senseless crime . Brown
contends that all of the tattoo evidence-the Commonwealth's photograph
showing the hand tattoo and all of the cross-examination concerning that and
his other tattoos-was mere character evidence inadmissible under KRE 404(b)
and further that the tattoo evidence was unfairly prejudicial and so much so as
to be inadmissible under KRE 403 . Although we disagree with Brown's
contention concerning the Commonwealth's photograph, which was introduced
without any mention of the tattoo and served a proper evidentiary purpose, we
agree that he was improperly cross-examined. With respect to Brown's
conviction, we are convinced that the error was harmless . The error was not
harmless with respect to Brown's sentence, however, and would require
resentencing even were resentencing not required on double jeopardy grounds.
Contrary to Brown's assertion, the photograph of his cut and scratched
wrist was relevant evidence tending to show that not long before the photo (i.e.
right at the time of the murder) Brown had carried a heavy, bulky object such
as a large television . Brown's own account that he had scratched himself
moving large stereo speakers out of a friend's car gave credence to this theory
67
of relevancy . As Brown notes, under KRE 403 relevant evidence may be
excluded if it is unfairly prejudicial and if the prejudicial effect substantially
outweighs the evidence's probative value . Ware v. Commonwealth, 537 S .W .2d
174, 176 (Ky. 1976) (Generally under our rules, "'[pjrejudiced' means unfairly
prejudiced .") . Evidence is unfairly prejudicial "if it will induce the jury to
decide the case on an improper basis, commonly an emotional one, rather than
on the evidence presented ." United States v. Thomas, 321 F.3d 627, 630 (7th
Cir. 2003) (citations and internal quotation marks omitted) . When Brown
objected to the photograph depicting his scratched wrist on the ground that the
hand tattoo, also visible in the photo, would unfairly prejudice him, the trial
court noted that tattoos are common in our current society and thus that
Brown's tattoo, if introduced without comment, was not apt to have a
prejudicial effect substantially in excess of the photo's probative value . We
agree with the trial court, and so conclude that its admission of the wrist photo
was not an abuse of discretion .
As Brown also notes, however, several courts have held that where
tattoos are not relevant to a material issue in the case, such as the identity of
the perpetrator or the defendant's membership in a conspiracy, they are
inadmissible as evidence of the defendant's character or for the purpose of
showing that the defendant is the sort of person apt to commit the alleged
crime . See, e.g., United States v. Newsom, 452 F.3d 593 (6th Cir. 2006) ; Brooks
v. State, 903 So .2d 691 (Miss. 2005) ; United States v. Thomas, supra; State v.
68
Steele, 510 N .W.2d 661 (S.D. 1994) . Our rules, too, prohibit mere character or
propensity evidence, KRE 404(b), and, as just discussed, evidence calculated to
do nothing but rouse the jury's emotions against the defendant. We agree with
Brown that the cross-examination concerning his various tattoos and what
they meant violated these rules. The tattoo evidence was not relevant to any
material issue, but merely tended to suggest, in the case of the three negative
tattoos singled out by the Commonwealth, that Brown was the sort of angry,
disaffected person capable of murdering Sherry Bland.
The Commonwealth's contention that Brown opened the door to this
evidence by referring to his tattoos during his direct examination is of no avail .
As we recently explained in Commonwealth v. Stone, 291 S .W.3d 696 (Ky.
2009), "`opening the door' to otherwise inadmissible evidence is a form of
waiver that happens when one party's use of inadmissible evidence justifies the
opposing party's rebuttal of that evidence with equally inadmissible proof."
Stone, at 701-02 (citing Purcell v. Commonwealth, 149 S .W.3d 382 (Ky. 2004)) .
However,
[t]he open door doctrine does not pave the way for
responsive evidence just because it fits in the same
general category as evidence already admitted . For
example, admitting hearsay from one side does not
mean the other side can offer hearsay. . . . The
question in each case is not whether initial proof
shares some common quality with proof offered in
response. Rather, it is whether the latter answers the
former, and whether it does so in a reasonable way
without sacrifice of other important values .
Stone at 702 (quoting from 1 Mueller 8v Kirkpatrick, Federal Evidence, § 1 :12,
69
75-76 (3d ed. 2007)) .
The Commonwealth's tattoo questioning cannot be deemed a reasonable
answer to an assertion by Brown, because Brown had made no pertinent
assertion. His reference to the fact that the photograph of himself did not show
his tattoos asserted nothing, and certainly nothing remotely exculpatory, about
either the tattoos or his character, which might then have been subject to
rebuttal by the Commonwealth . Cf. Metcalf v. Commonwealth, 158 S .W.3d 740,
745 (Ky. 2005) ("The prosecutor may introduce evidence of the accused's bad
character only to rebut evidence of the accused's good character . . . . And
character evidence is admissible only in the form of reputation or opinion, not
specific instances of conduct.") Nor did introduction of the cropped photograph
open the door because, again, it did not amount to an assertion by Brown of
"good" character which might have invited a response .
This case is thus distinguishable from Urbanski v. Commonwealth, 526
S.W.2d 7 (Ky . 1975), on which the Commonwealth relies, a case pre-dating the
current rules of evidence. In that case a defendant accused of drug crimes was
deemed to have made a rebuttable assertion of "good" character, or at least of
anti-drug character, by appearing in court well-dressed and well-groomed . By
flying under such "false colors," our predecessor Court opined, the defendant
invited evidence-a photograph and verbal descriptions-of his "hippy-like"
appearance at other times . Id. at 8 . Even assuming that on its narrow facts
Urbanski remains good law, it does not aid the Commonwealth here because
70
neither the photograph Brown introduced nor his testimony volunteering that
the photo did not show his tattoos amounted to an assertion of character to
which the Commonwealth could respond at all, much less with tattoo evidence
violative of KRE 403 and 404(b) . The trial court abused its discretion by ruling
otherwise .
Although the trial court should not have permitted the Commonwealth to
cross-exam Brown regarding his tattoos, we agree with the Commonwealth that
with respect to Brown's conviction the error was harmless . The
Commonwealth used the tattoo evidence to argue that Brown regarded himself
as an outsider to society and the law and that with the "only God knows why"
tattoo he may have been admitting Bland's murder. On these points, however,
the tattoo evidence added very little to what the jury had already learned . The
jury knew, for example, that Brown was a convicted felon, that many of his
friends were convicted felons and drug users, that he had not been steadily
employed, and that he did not maintain his own residence but lived a seminomadic existence by staying for brief periods at the homes of his
grandmother, his sister, and various friends. That Brown had tattoos reflective
of a rebellious, even crime-tinged, life would have come as no surprise to the
jury and would not have substantially swayed its guilt or innocence
determination . Similarly, the jury had already heard from several of Brown's
friends that he had admitted committing the crimes against Bland. The
Commonwealth's unsupported speculation about the "only God knows why"
71
tattoo added little, if anything, to that evidence . Moreover, the jury heard
about Brown's numerous tattoos, several bearing family members' names, and
thus to the extent those were more humanizing, the jury was not given a totally
skewed impression of the messages on his body. Ultimately, the tattoo
evidence, although improper, was harmless error. See Winstead, 283 S .W.3d
at 689 (the court "can say with fair assurance that the judgment was not
substantively swayed by the error") .
With respect to Brown's death sentence, however, we cannot with
confidence say that the jury was not swayed by the improper tattoo evidence .
The Commonwealth used that evidence to paint the picture of a particularly
remorseless crime and that picture may well have contributed to this second
jury's conclusion that death was the appropriate sentence . Even had Brown
been properly subject to the death penalty in his second trial, therefore, we
would have been compelled to vacate his sentence and remand for
resentencing.
D. The Trial Court Did Not Abuse its Discretion by Admitting Autopsy
and Crime Scene Photographs and a Crime Scene Video.
Bland's body was discovered within two or three days of her murder .
Through four witnesses, the Commonwealth introduced a number of still
photographs and a video recording depicting the body and the scene of the
crime . The fifteen-minute video recording was made by and introduced
through the coroner, who used it to illustrate his investigation of the scene.
Several still photos of the scene were introduced through two of the
72
investigating officers . Several more photos were introduced through the
medical examiner, who used them to illustrate the course and results of his
autopsy examination . Several of the photos and some two minutes total of the
coroner's video show the body's badly beaten and bloodied condition. Although
at trial Brown objected only to the autopsy photos, he contends now that much
of the crime scene depiction as well was cumulative and inflammatory and that
its prejudicial effect substantially outweighed its probative value. We disagree .
Although Brown correctly notes that we have disapproved of the use of
photos depicting badly decomposed or mutilated bodies the condition of which
no longer accurately reflects the results of the crime, Funk v. Commonwealth,
842 S .W.2d 476 (Ky. 1992) ; Clark v. Commonwealth, 833 S .W.2d 793 (Ky .
1992) ; Holland v. Commonwealth, 703 S .W.2d 876 (Ky. 1985), the general rule
has long been
that a photograph, otherwise admissible, does not
become inadmissible simply because it is gruesome
and the crime is heinous. . . . "Were the rule otherwise,
the state would be precluded from proving the
commission of a crime that is by nature heinous and
repulsive . . . . Where the photographs reveal[] nothing
more than the scene of the crime and the person[] of
the victim[], they [a]re not incompetent ."
Funk, at 479 (quoting from Salisbury v. Commonwealth, 417 S .W.2d 244 (Ky.
1967), other citation omitted) . We have applied this rule to crime scene and
autopsy photos, Epperson v. Commonwealth, 809 S.W. 2d 835 (Ky. 1991) ; Dant
v. Commonwealth, 258 S.W .3d 12 (Ky. 2008), and to crime scene videos, Fields
v. Commonwealth, 12 S .W.3d 275 (Ky. 2000) .
73
The general rule applies here, where there is no contention that the
photo and video evidence fails to depict the results of the crime . The autopsy
photos in this case were indeed numerous, but that was because Bland's
injuries were numerous, not because the evidence was cumulative . The extent
and nature of Bland's injuries was relevant, as the Commonwealth points out,
not only to show the cause of Bland's death, but also as tending to show the
murderous intent of her attacker, the likely sort of murder weapons, and even,
because of the extreme brutality of the assault, the likelihood that persons with
knowledge of the crime would be afraid to come forward. The trial court did
not abuse its discretion under KRE 403 by admitting the autopsy photos. The
unobjected-to crime scene depictions were relevant for the same purposes, and
their admission likewise was not erroneous, much less palpably so . Brown is
not entitled to relief on this ground .
E. The Trial Court Properly Admitted Stephanie McClain's Hearsay
Testimony.
At trial, the Commonwealth called Adam Dudley, one of Brown's friends,
and asked him if, in one of their conversations, Brown had not admitted that
he murdered Bland. Dudley denied that Brown had made such an admission
to him or that he had repeated the admission to his girlfriend . Thereupon, the
Commonwealth called the girlfriend, Stephanie McClain, who testified that
Dudley had told her that in a phone conversation with Brown, Brown had
confessed to Bland's murder. Brown contends that the trial court erred by
admitting McClain's testimony, which, by repeating out-of-court statements by
74
both Brown and Dudley, amounted to double hearsay .
The same issue arose at Brown's first trial when another of Brown's
friends, Shane Hughes, similarly denied conversing with Brown about the
murder or repeating Brown's remarks to Archie Lane . Lane then testified that
Hughes had repeated Brown's confession to him, and in Brown's first appeal
we rejected his hearsay objection. We explained that
[a]lthough the testimony of Lane as to what Hughes
said Brown told him was double hearsay, it was
admissible because each part of the combined
statements conforms with an exception to the hearsay
rule . KRE 805. See also, Thurman v. Commonwealth,
975 S .W.2d 888, 893 (Ky. 1998) . Brown's statements
were admissible as admissions of a party. KRE
801A(b)(1) ; Thurman, supra. Hughes could have
testified to those statements because he was the
person to whom the admissions were made . His
statements to Lane were then admissible as prior
inconsistent statements of a witness . KRE 801A(a)(1) ;
Thurman; Jett v. Commonwealth, 436 S .W.2d 788 (Ky.
1969) . The proper foundation was laid for the
admission of Lane's testimony by asking Hughes if he
had made any statements to Lane . KRE 613(a) ;
Thurman. The fact that Hughes was never asked if he
had made the particular statements to Lane is of no
consequence. Hughes denied making any statements
to Lane about what Brown had said to him.
Brown v. Commonwealth, 2003-SC-1023-MR (Aug. 25, 2005) . 15 Clearly
McClain's testimony was admissible pursuant to the same rules and reasoning,
but Brown contends that, while his statement to Dudley (and by implication to
Hughes) would be admissible as the admission of a party, Dudley's (and
15
Lane testified to the same effect at Brown's second trial, and Eddie Ingram also
testified that Hughes repeated Brown's confession to him. Brown does not
challenge Lane's and Ingram's double hearsay, apparently conceding that it is
governed by the law of the case .
75
Hughes's) repetition of that statement, although admissible under our
evidentiary rules, was inadmissible under the Sixth Amendment's
Confrontation Clause as interpreted by the United States Supreme Court in
Crawford v. Washington, 541 U.S . 36 (2004) . We disagree .
In Crawford, the Supreme Court held that if the declarant does not
testify at trial, his "testimonial" hearsay statements are not admissible,
regardless of the hearsay rules, unless he is unavailable to testify and his
hearsay statements were previously subject to cross-examination . Id. at 54 .
The Supreme Court has yet to provide a definition of "testimonial," but in
Crawford it distinguished testimonial statements from casual remarks to
friends . It is highly unlikely, therefore, that Dudley's remarks to his girlfriend,
McClain, are to be deemed "testimonial" for Crawford's purposes . See
Hartsfizeld v. Commonwealth, 277 S.W .3d 239 (Ky. 2009) (spontaneous, informal
statements unsolicited by law enforcement or its surrogate not testimonial
under Crawford .) . As the Crawford Court explained, moreover, "when the
declarant appears for cross-examination at trial, the Confrontation Clause
places no constraints at all on the use of his prior testimonial statements. . . .
The Clause does not bar admission of a statement so long as the declarant is
present at trial to defend or explain it." Id. at 59 (citation omitted) . Dudley, of
course, (and Hughes) did appear for cross-examination at Brown's second trial,
and thus, even if his statements to McClain were to be deemed testimonial,
Crawford would not bar their admission under our rules .
76
Brown also invites us to jettison KRE 801A(a)(1), the rule permitting the
introduction of a witness's prior inconsistent statement as substantive evidence
as well as for impeachment, and urges us to adopt a rule whereby such prior
inconsistent statements would not be admissible unless made under oath .
Brown has offered no reason, much less a compelling one, to depart from a rule
that has served us well for forty years, Jett, supra, and we thus decline his
invitation .
F. Jerry Kemp's Repetition of His Mother's Remarks Was Properly
Admitted for a Non-Hearsay Purpose.
Jerry Kemp testified that in the wee hours one morning at about the time
of the murder, Brown arrived at his, Kemp's, apartment with a television set he
claimed to have acquired from someone on "the Pike ." A couple of weeks later,
Kemp testified, his mother called him and told him of news reports to the effect
that a television had been stolen from Bland's residence . She also told him
that the set described in the reports was similar to the one Brown had given
him . Kemp decided that having the television set in his apartment "was not too
smart," and so insisted that Brown help him get rid of it. According to Kemp,
the two then hauled the set outside of town and dumped it alongside the road .
Brown contends that Kemp's repetition of his mother's statements
concerning the news reports violated the rule against hearsay, the rule that
generally precludes out-of-court statements offered into evidence to prove the
truth of the matter asserted in the statement. KRE 801 ; KRE 802 . The
mother's statements were not hearsay, however, because they were not
77
introduced to prove the truth of the matter asserted . Ragland v.
Commonwealth, 191 S.W .3d 569 (Ky. 2006) ; Slaven v. Commonwealth, 962
S .W .2d 845 (Ky. 1997) . They were not introduced to prove that Bland's
television had been stolen, for the mother was not purporting to have
independent knowledge of that fact. Nor were they introduced to prove that
Bland's television was like the one in Kemp's apartment, for again, the mother
was not purporting to have independent knowledge of what Bland's set looked
like . The statements were introduced, rather, merely to explain why Kemp
insisted that Brown help him get rid of the television set Brown had left with
him . See Robert G. Lawson, The Kentucky Evidence Law Handbook § 8 .05(3)
("The mere making of a statement may be relevant to prove the state of mind of
a person in whose presence the statement was made" and, its use in such
circumstances is non-hearsay.) The trial court did not abuse its discretion by
admitting for that purpose Kemp's repetition of his mother's statements .
G. The Trial Court Did Not Infringe Upon Brown's Right to Present a
Defense When it Excluded Evidence of Bland's Drug Use, the
Relevance of Which Was Not Established.
Brown next contends that the trial court improperly excluded evidence
vital to his defense, evidence, he maintains, suggesting that someone else may
have committed the crimes against Bland . Because the evidence Brown sought
to introduce was marginally relevant at best, however, the trial court did not
abuse its discretion by excluding it.
Bland's body was discovered by Mary Fortner who was the mother of
78
Bland's boyfriend, Eugene Strode . In January 2001, Strode was incarcerated
at the Adair County Jail, but through a work release program he worked
during the day at the Columbia Housing Authority. Apparently Strode and
Bland contrived to see each other at the Housing Authority during his hours of
release . When Bland, who did not have a phone, did not come to the Housing
Authority on Wednesday, January 10, 2001, Strode asked his mother and
another friend, Shannon Wheeler, to visit Bland and ask her to call him.
Strode testified that in response to a note his mother left for her, Bland called
him at about ten-till-four that afternoon. Wheeler testified that she stopped
briefly at Bland's residence at about ten-after-six that same day and that
Bland, who was watching television, seemed fine . On Friday, January 12,
Bland again missed a luncheon engagement with Strode at the Housing
Authority, and again he asked his mother to check on her . Fortner and a
friend went to Bland's residence that afternoon. Fortner died prior to Brown's
first trial, but the friend testified that Fortner had hardly entered Bland's
residence before she returned, screaming that Bland was dead .
At trial, Brown sought to introduce the note Fortner apparently delivered
to Bland on Wednesday afternoon, and he sought to cross-examine Strode
concerning his and Bland's use of illegal drugs. The note included the
following passage : "he [Strode] said he has to talk to you it is very important he
said, so be sure to call him, if not today call tomorrow . Love mom. The
number is . . . . He don't go in till 15, till 4 . Something is going on I don't know
79
what." The trial court excluded the note on hearsay grounds . Strode testified
on avowal that the note was in his mother's handwriting, but that he was not
aware of anything "going on ."
Brown also sought to cross-examine Strode concerning his and Bland's
use of crack cocaine. Apparently the police had initially questioned Strode
about cocaine and he had admitted that he and Bland had used cocaine in the
past, but denied that they had done so for some time prior to Bland's murder.
The Commonwealth presented no drug-related evidence. The trial court
disallowed the cross-examination concerning cocaine as irrelevant .
Brown contends that both Fortner's note and Strode's and Bland's
history of drug use were relevant as somehow suggesting that there might have
been drug debts or perhaps some other drug-related motive for Bland's
murder, and that such a motive might have been the something "going on"
referred to in the note . Strode's drug use was relevant, furthermore, according
to Brown, as somehow giving Strode a motive to testify against Brown. These
vague, speculative suggestions, however, are not enough to make this evidence
relevant.
Brown is correct, of course, that under both the Kentucky and the United
States Constitutions, he has the right to present a complete and meaningful
defense . Beaty v. Commonwealth, 125 S.W .3d 196 (Ky. 2003) ; Holmes v. South
Carolina, 547 U .S . 319 (2006) . This right includes both the right to confront
the witnesses against him with evidence reasonably suggestive of bias, Beaty,
80
supra; Davis v. Alaska, 415 U.S . 308 (1974), as well as the right to present
evidence reasonably suggestive that someone else committed the charged
crimes. Beaty; Holmes, supra. A defendant is not at liberty, however, "to
present unsupported theories in the guise of cross-examination and invite the
jury to speculate as to some cause other than one supported by the evidence ."
Davenport v. Commonwealth, 177 S .W.3d 763, 772 (Ky. 2005) (citing
Commonwealth v. Maddox, 955 S .W.2d 718 (Ky. 1997), internal quotation
marks omitted) . See also Holmes, 547 U.S . at 326 ("Constitution permits
judges to exclude evidence that is . . . only marginally relevant.") (citation and
internal quotation marks omitted) .
The mere fact that a murder victim may have used drugs, does not,
without more, permit a reasonable inference that her murder was drug-related.
Here, aside from Strode's brief testimony at trial that Bland was on prescription
medications and had at some point in the past tried cocaine, there was no
evidence of a drug supplier, of drug debts, or of any other drug connection .
Absent evidence reasonably suggesting Strode's or some other third party's
involvement in Bland's murder, Brown's drug theory was nothing more than an
invitation to the jury to speculate, and the trial court did not abuse its
discretion by disallowing such speculation based on either Fortner's note to
Bland or Bland's history of drug use.
For the same reason, the trial court did not abuse its discretion by
limiting cross-examination concerning Strode's own drug use . There was no
81
evidence, such as pending criminal charges, say, to suggest that Strode's drug
use gave him a reason to favor the Commonwealth, and no evidence remotely
suggesting that Strode had any reason, drug-related or otherwise, to be biased
against Brown. The trial court did not abuse its discretion by foreclosing
speculation on those points.
H. Brown's Right to Present a Defense Was Not Infringed by the
Exclusion of Evidence That the Kemps Were Subsequently
Involved in the Theft of a Television .
Brown further contends that his right to present a defense was infringed
when the trial court excluded evidence that, about a year after Bland's murder,
Jerry and Joseph Kemp were involved in the theft of a television from a woman's
apartment . This evidence, according to Brown, permits a reasonable inference
that the Kemps and not he committed the crimes against Bland . This same
contention was raised and rejected in Brown's first appeal. In our previous
opinion, we discussed the issue as follows:
During Brown's case-in-chief, he presented a witness
who indicated that she had a television stolen from her
home and that the Kemp brothers were involved. This
occurred almost a year after the crime in this case .
The trial judge prohibited the testimony and
admonished the jury to disregard the portion of it they
heard . The witness later testified by avowal that her
television was stolen from her home and that several
individuals, one of whom was Joseph Kemp, had
participated in the theft. She later heard that Jerry
Kemp was in possession of the television and she
attempted to retrieve it from him . Unable to do so, she
had all the participants arrested . Jerry Kemp later
returned the television and the charges were dropped .
A defendant does have a right to introduce evidence
that another person committed the offense with which
he is charged . . . . That right, however, is not
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unlimited . Evidence is not automatically admissible
simply because it tends to show that someone else
committed the offense. . . . For instance, motive
evidence alone is insufficient to guarantee
admissibility. . . . The same can be said for evidence of
opportunity. . . . Evidence that Jerry and Joseph
Kemp were involved with or were in possession of a
second stolen television nearly a year after the present
crime was committed demonstrated neither motive nor
opportunity in this case . Moreover, although Brown
had indicated earlier in a statement to the police that
the Kemps where involved in the present crime, he
recanted that story entirely at trial. He still claimed
that he did not commit the present offenses, but when
he testified, he was no longer casting any blame on the
Kemps. Brown was not denied his right to present a
defense by the exclusion of the "reverse 404(b)"
evidence .
Brown v. Commonwealth, 2003-SC-1023-MR (Aug. 25, 2005) (citations omitted) .
Brown concedes that the exclusion of this evidence is thus the law of the case,
but urges us nevertheless to reconsider our prior ruling. As explained above,
however, we will deviate from the law of the case only where our previous
decision was clearly erroneous and works a manifest injustice . Those concerns
are not present here. Brown's assertions to the contrary notwithstanding, the
Kemps' involvement with others in the theft of a television from an apartment
from which the occupant was absent in no way serves to establish either a
motive or the opportunity for their perpetration a year earlier of the brutal
crimes against Bland. Exclusion of that purely speculative evidence did not
infringe upon Brown's right to present a defense.
V. The Trial Court Did Not Err in Denying a Jury Instruction on Receiving
Stolen Property .
Brown next contends that the trial court erred when it refused to instruct
the jury on what Brown characterizes as the lesser-included offense of
receiving stolen property. He maintains that he was entitled to such an
instruction based on the testimony by Jerry Kemp and Charlene Farmer to the
effect that when Brown brought them the television set in January 2001 he
said that he had obtained it "from a crack head down at the Pike ." The trial
court disallowed the tendered instruction because in its view that slender reed
of evidence was not enough to permit a rational juror to conclude that Brown
notwithstanding his defense of total denial of having anything whatsoever to do
with Bland or her television setwas not guilty of stealing Bland's television
but was somehow guilty of receiving it from someone else . Brown contends
that the trial court erred by refusing to give the jury that option . We disagree.
Brown correctly notes that "it is the duty of the trial court in a criminal
case to instruct the jury on the whole law of the case, RCr 9 .54(1), and this
rule requires instructions applicable to every state of the case deducible from
or supported to any extent by the testimony." Thomas v. Commonwealth, 170
S .W.3d 343, 348-49 (Ky. 2005) (citing Webb v. Commonwealth, 904 S .W .2d 226
(Ky. 1995)) . This does not mean, however, that speculative theories are to be
put before the jury in the instructions merely because the testimony includes
some basis for the speculation. Rather, "an instruction on a lesser included
offense is required if the evidence would permit the jury to rationally find the
84
defendant not guilty of the primary offense, but guilty of the lesser offense ."
Fields v. Commonwealth, 219 S .W.3d at 749 (quoting Thomas, 170 S .W.3d at
349) . The trial court did not abuse its discretion here by ruling that Brown's
statement to Kemp and Farmer about acquiring the television "at the Pike"
provided no more than speculative proof of a theory of the case that was not
suggested by any other evidence and that neither party gave even passing
notice. No rational juror could have concluded from the totality of the evidence
presented that Brown just happened to acquire a television matching Bland's
stolen from her by someone else who happened to sell or give it to Brown .
An additional reason for upholding the trial court's decision, although a
reason not relied on by the trial court itself, is that, as the Commonwealth
points out, while lesser included offenses must be included in the instructions
if adequately supported by the evidence, "the fact that the evidence would
support a guilty verdict on a lesser uncharged offense does not entitle a
defendant to an instruction on that offense ." Hudson v. Commonwealth, 202
S .W .3d 17, 21 (Ky. 2006) . Here, receiving stolen property is not a lesserincluded offense of robbery, Roark v. Commonwealth, 90 S .W.3d 24 (Ky. 2002),
it is a lesser-uncharged offense, and thus even had the evidence supported a
guilty verdict on that offense, Brown was not entitled to a receiving-stolenproperty instruction.
VI. Brown's Trial Was Not Rendered Unfair by Prosecutorial Misconduct .
Brown next complains of several instances of what he characterizes as
85
prosecutorial misconduct . Some of this misconduct took the form of allegedly
improper questions, generally questions asked upon redirect of prosecution
witnesses, and some allegedly occurred during the prosecutor's closing
arguments . Brown objected only twice to the allegedly improper questions and
not at all during the prosecutor's closings. We will reverse for prosecutorial
misconduct where it was objected to if proof of the defendant's guilt was not
such as to render the misconduct harmless, and if the trial court failed to cure
the error with a sufficient admonishment to the jury. Where there was no
objection, we will reverse only where the misconduct was flagrant and was
such as to render the trial fundamentally unfair. Barnes v. Commonwealth, 91
S.W .3d 564 (Ky. 2002) ; Partin v. Commonwealth, 918 S .W .2d 219 (Ky. 1996) .
A. It Was Not Improper for the Prosecutor to Ask a Witness Whose
Veracity Had Been Impeached Whether He Had Testified Truthfully.
One of the questions to which Brown objected was asked during the
redirect examination of Eddie Ingram. Ingram, it will be recalled, testified that
Brown confessed these crimes to Ingram himself and to a mutual friend, Shane
Hughes . During cross-examination, counsel for Brown sought to impeach
Ingram's veracity by suggesting that Ingram was testifying favorably to the
Commonwealth in exchange for leniency with respect to criminal charges of his
own. On redirect, the Commonwealth asked whether Ingram had in fact
received any benefit in exchange for his testimony and whether "what you told
the jury about what the defendant told you has been the truth ." Brown
objected to this latter question, the trial court overruled the objection, and
86
Ingram affirmed that his testimony had been truthful .
Brown observes that the credibility of a witness is generally a matter for
the jury to determine, and insists that the prosecutor's invasion of that
province denied Brown a fair trial . Brown is correct, of course, that one
witness is not permitted, and should not be asked, to comment upon the
truthfulness of another witness's testimony. Moss v. Commonwealth, 949
S .W.2d 579 (Ky. 1997) . Nor is a witness allowed to bolster his or her own
testimony unless and until it has been attacked in some way. See, e.g., KRE
801A(a)(2) (limiting the use of a witness's prior consistent statements) ; State v.
Skipper, 446 S.E.2d 252 (N.C . 1994) (improper during direct examination to
ask if witness is being truthful) . Once a witness has been impeached, however,
"the party introducing him may introduce evidence to corroborate his
testimony or support his credibility." Samples v. Commonwealth, 983 S .W.2d
151, 154 (Ky. 1998) (citations and internal quotation marks omitted) .
Whether under this general rule merely asking the witness if he or she
has been truthful is a proper method of rehabilitation is a question that
appears not to have been widely addressed. A few courts have expressed
disapproval of such questions, e.g., City of Highland Park v. Block, 362 N .E.2d
1107 (Ill . App. 1977) (in light of witness's oath, the question is not meaningfully
rehabilitative), others have approved them, Grayson v. United States, 107 F .2d
367
(8th
Cir. 1939), or found them not to have amounted to plain error. State v.
Chapman, 611 S.E.2d 794 (N.C . 2005) . We are inclined to agree with the Court
87
in People v. Tingle, 665 N.E .2d 383 (Ill. App. 1996), that where the
impeachment has attacked not the witness's perception or memory but has
focused intently on the witness's veracity, it is within the trial court's discretion
to permit the witness on redirect to deny the imputation of dishonesty . It may
be that such testimony adds little to the witness's oath, but for that very
reason it poses little risk of short-circuiting the jury's credibility determination,
the risk that is posed when one witness vouches for another.
Here, Brown's cross-examination of Ingram dealt at length with Ingram's
criminal past and the possibility that he had something to gain from the
Commonwealth by testifying against Brown . The implication, italicized and
underscored, was that Ingram was lying so as to benefit himself. In these
circumstances, the trial court did not abuse its discretion by permitting the
Commonwealth to ask Ingram on redirect whether his testimony regarding
Brown's confessions was the truth.
Brown did not object to similar questions posed on redirect to Archie
Lane and to Stephanie McClain, who likewise testified that they had learned of
Brown's confession and were attacked on cross-examination as having reasons
for currying favor with the Commonwealth . In light of our discussion with
respect to the Commonwealth's efforts to rehabilitate Ingram, we are convinced
that the similar and unobjected-to rehabilitation of Lane and McClain did not
render Brown's trial fundamentally unfair.
B. A Witness's Reference to the Fact That Brown Had Not Consented
to a Search Was Cured by Sufficient Admonition.
During the Commonwealth's direct examination of the lead detective on
the case, the prosecutor asked whether during June of 2002 he had obtained
DNA samples from Strode and Brown . The detective answered that he had,
and added, although he was not asked, that Brown's sample was collected
pursuant to a search warrant. Several questions later, when asked how he had
collected the DNA samples, the detective gave a response that went beyond the
question by noting that Strode volunteered his sample while Brown's involved a
search warrant. At this second mention of a search warrant, counsel objected
on the ground that Brown's exercise of his Fourth Amendment rights was not
relevant. The trial court sustained the objection and at Brown's request
admonished the jury to disregard the search warrant reference .
Notwithstanding the relief he obtained from the trial court, Brown now
contends, apparently, that the reference to the search warrant rendered his
trial fundamentally unfair. We disagree .
As we recently reiterated in Benjamin v. Commonwealth, 266 S .W .3d 775
(Ky . 2008),
[i]t is well-settled law within the Commonwealth that a
"jury is presumed to follow an admonition to disregard
evidence; thus, the admonition cures any error". . . .
Moreover, "[t]here are only two circumstances in which
the presumptive efficacy of an admonition falters: (1)
when there is an overwhelming probability that the
jury will be unable to follow the court's admonition
and there is a strong likelihood that the effect of the
inadmissible evidence would be devastating to the
defendant; or (2) when the question was asked without
89
a factual basis and was inflammatory or highly
prejudicial."
Id. at 788 (quoting Combs v. Commonwealth, 198 S .W.3d 574 (Ky. 2006), other
citations and internal quotation marks omitted) . Neither exception applies
here . It is well-known that search warrants are common in criminal cases.
The passing reference to a warrant here is not at all likely to have affected
Brown's case, much less to have devastated it. There was, moreover, a factual
basis for the detective's non-responsive search-warrant reference, which,
although improper, was neither inflammatory nor highly prejudicial . The trial
court's admonition was sufficient, and Brown, accordingly, is not entitled to
relief on this ground .
C. None of the Prosecutor's Unobjected-To Questions or Remarks
Rendered Brown's Trial Unfair.
Nor is Brown entitled to relief for any of the unpreserved instances of
alleged prosecutorial misconduct . First, the Commonwealth's rehabilitation of
Barbara Slater, the Kemps' mother, who was asked on redirect whether she
regretted not having come forward sooner with her suspicions about the
television set Brown gave to her son, was a fair response to Brown's crossexamination of Slater. Specifically, Brown's questions suggested that Slater
had not come forward because she feared her sons were involved with Bland's
murder .
On redirect, the Commonwealth asked two of its forensic witnesses
whether they and their labs ever performed analyses for defendants and
90
whether Brown had asked for any additional analyses here. Again, the
questions were in response to cross-examination. Brown had posed questions
suggesting that the labs were biased in favor of the prosecution and that they
neglected tests potentially damaging to the prosecution's case . It was certainly
within the scope of redirect to ask about the labs' and the technicians'
neutrality .
With respect to the question about Brown's request for testing, Brown is
correct, of course, that the Commonwealth bears the burden of proving all the
elements of the crime and that it is improper to shift that burden to the
defendant. Commonwealth v. Collins, 821 S .W .2d 488 (Ky. 1991) . In Shabazz
v. Commonwealth, 153 S .W .3d 806 (Ky. 2005), however, a case, like this one, in
which the defendant asserted an inadequate-investigation defense, the
prosecutor responded aggressively that had the defendant wanted further
investigation he was free to request it or to provide it himself. The defendant
objected to that response, but his objection was overruled . On appeal, this
Court acknowledged that to the extent the prosecutor's response tended to
suggest that the defendant bore the burden of proving himself innocent it was
improper, but held that relief was not appropriate because, notwithstanding
the prosecutor's impropriety, it was clear that the defendant had received a fair
trial at which the jury had been instructed and understood that the
Commonwealth bore the burden of proving each element of every charge . The
same can be said here . In fact, given that the prosecutor's questions-which
91
amounted only to momentary asides in a trial that lasted for several dayswere much less troublesome than the prosecutor's remarks in Shabazz, there
was no contemporaneous objection, the evidence against Brown was
substantial, and the jury was correctly instructed as to the Commonwealth's
burden of proof, we are convinced that the prosecutor's impropriety, if any, did
not constitute a manifest injustice or render Brown's trial fundamentally
unfair.
Brown also failed to object to what he now claims were a couple of
improper guilt phase closing arguments . He complains that the prosecutor
improperly vouched for his witnesses by asserting that they "came up here and
told the truth." This remark can be fairly construed, however, not as a
statement of the prosecutor's personal belief but as a comment on the veracity
debate discussed above . It most assuredly did not render Brown's trial
manifestly unjust.
Nor was Brown's trial rendered unfair by the prosecutor's comment
during closing that Brown had not called John Thompson as a witness .
Thompson was a friend or acquaintance of Brown, and at one point in Brown's
testimony he claimed that in November 2001 he learned from Thompson that
Jerry and Joseph Kemp had made accusations that he, Brown, was involved in
Bland's murder. Brown testified that information prompted him to concoct
false accusations against the Kemps. At another point in his testimony, Brown
claimed to have learned of certain of the allegations against him not from
92
Thompson but from his discovery papers. During his closing argument, the
prosecutor argued that Brown's testimony tending to claim that Thompson
gave him his knowledge of the crime (as opposed to having gained it first hand)
was belied by the fact that the defense had not called Thompson to testify.
Brown contends that the prosecutor's comment was improper, but he
has failed to explain why. He refers us to Sexton v. Commonwealth, 304 Ky.
172, 200 S .W.2d 290 (1947), a case largely superseded by Bixler v.
Commonwealth, 204 S .W.3d 616 (Ky. 2006) . Sexton, according to Brown,
makes it improper during closing argument to comment unfavorably on the
opposing side's failure to call a witness who would have been incompetent to
testify or who would have testified only to immaterial or irrelevant matters. He
fails to explain how this rule applies to Thompson . Although Brown's
testimony regarding Thompson was ambiguous, that ambiguity hardly
establishes that Thompson's testimony would necessarily have been
immaterial, and Brown points to nothing to suggest that Thompson would have
been incompetent to testify. When the defendant testifies, the prosecutor is
allowed to comment on the defendant's credibility. Tamme v. Commonwealth,
973 S.W.2d 13 -(Ky. 1998) . Such comment may include noting the absence of
obvious witnesses where the absence tends to belie the defendant's claims .
Maxie v. Commonwealth, 82 S .W.3d 860 (Ky. 2002) . Brown's testimony had
some tendency, however confused or attenuated, to suggest that his
conversation with Thompson accounted for some aspects at least of his
93
knowledge of the crime . He has not demonstrated that the prosecutor's
comments combating that suggestion were improper, much less that they
rendered his trial fundamentally unfair.
Brown also complains that the prosecutor made improper arguments
during his penalty phase closing, but as the alleged misconduct is not apt to
recur on remand our vacation of Brown's sentence renders those complaints
moot.
VII. Reversal is Not Required Because of Cumulative Error.
Finally, Brown contends that his conviction should be reversed on the
basis of cumulative error, the doctrine under which multiple errors, although
harmless individually, may be deemed reversible if their cumulative effect is to
render the trial fundamentally unfair. We have found cumulative error only
where the individual errors were themselves substantial, bordering, at least, on
the prejudicial . Funk v. Commonwealth, supra. Where, as in this case,
however, none of the errors individually raised any real question of prejudice,
we have declined to hold that the absence of prejudice plus the absence of
prejudice somehow adds up to prejudice. Furnish v. Commonwealth, 95 S .W.3d
34 (Ky . 2002) . Although errors crept into this trial, as they inevitably do in a
trial as complex and long as this one, they did not, either individually or
cumulatively, render the trial unfair.
VIII. Brown's Other Claims of Sentencing Error Have All Been Rendered
Moot.
Brown raises several additional arguments challenging the capital
94
sentencing procedures in this case, the trial court's consideration of victim
impact statements, and the constitutionality of capital punishment in general.
Our reversal of Brown's death sentence renders these issues moot.
CONCLUSION
In sum, because the jury who first heard Brown's case found that the
death penalty was not appropriate, Brown should not have been subjected to
the death penalty at his retrial . We vacate, accordingly, Brown's death
sentence and remand in order that Brown may be resentenced for murder .
Otherwise, however, Brown's trial, though flawed in minor ways, was
fundamentally fair. Jury selection, the admission and exclusion of evidence,
the jury instructions, and the prosecutor's conduct during both the
examination of witnesses and closing argument, all adequately comported with
Brown's right to a fair trial . In all respects aside from Brown's death penalty,
therefore, we hereby affirm the August 21, 2006 Judgment of the Warren
Circuit Court.
Noble, J., concurs . Cunningham, J., concurs in result only by separate
opinion in which Minton, C .J ., joins . Abramson, J ., concurring in part and
dissenting in part by separate opinion in which Venters, J ., joins . Scott, J .,
concurring in part and dissenting in part by separate opinion in which
Schroder, J ., joins.
CUNNINGHAM, J ., CONCURRING IN RESULT ONLY: I write to
emphasize that Kentucky law does not require the jury to find as a fact, beyond
95
a reasonable doubt, that the death penalty is the appropriate penalty .
However, in this particular case, such an instruction was given . For that
reason, I am constrained to concur in result only.
When a jury recommends the death penalty, KRS 532 .025(3) requires
only that the jury "designate in writing . . . the aggravating circumstance or
circumstances which it found beyond a reasonable doubt ." This Court has
previously stated that "[t]here is no requirement that the jury be instructed to
find that death is the appropriate punishment beyond reasonable doubt."
Skaggs v. Commonwealth, 694 S .W.2d 672, 680 (Ky . 1985) (vacated in part by
Skaggs v. Parker, 235 F .3d 261 (6th Cir. 2000)) . Because Kentucky's death
penalty statute suitably narrows the class of defendants who are eligible for the
death penalty, then guides and directs the jury's sentencing discretion with
clear and objective standards, it has repeatedly been held constitutional absent
such a requirement. See Kordenbrock v. Scroggy, 680 F . Supp. 867, 898
(E .D .Ky. 1988) ("[T]he Kentucky statute is not in violation of the Eighth and
Fourteenth Amendments .") . See also McQueen v. Scroggy, 99 F.3d 1302, 1333
(6th Cir. 1996) ; Thompson v. Commonwealth, 147 S .W .3d 22, 55 (Ky. 2004) ; Ice
v. Commonwealth, 667 S .W.2d 671, 679 (Ky. 1984) ; Gall v. Commonwealth, 607
S .W.2d 97, 113 (Ky. 1980) .
The U .S . Supreme Court has not specifically addressed what standard of
persuasion is required by the Eighth Amendment in death penalty proceedings .
Rather, its focus has remained on the overall statutory scheme and its ability
96
to reduce capricious or arbitrary imposition of the death penalty . See Gregg v.
Georgia, 428 U.S . 153, 188-95 (1976) . As such, some states employ the
reasonable doubt standard in determining the appropriateness of the death
penalty. See, e.g., State v. Wood, 648 P .2d 71, 83 (Utah 1982) . Others,
however, have rejected the argument that the failure to require the jury to find
that death is appropriate beyond a reasonable doubt renders a death penalty
statute unconstitutional . See, e.g., People v. Benson, 802 P .2d 330, 362 (Cal.
1990) (again rejecting claim that U .S . Constitution requires instruction that
jury must find death is appropriate beyond a reasonable doubt) . See also State
v. Jenkins, 473 N.E .2d 264, 280 (Ohio 1984) (jury need not be statutorily
required to determine death penalty is appropriate where procedural
safeguards ensure appropriateness) .
I am persuaded that the use of the reasonable doubt standard in the
penalty arena would serve little purpose . When the jury is directed to consider
the aggravating and mitigating circumstances, and then to fix punishment, the
jury is essentially determining what it believes to be the appropriate penalty. I
reject the contention that a reasonable doubt instruction underscores, for the
jury, the level of expected certainty in its decision. I trust a capital sentencing
jury has little doubt as to the profound nature of its task. Rather, I agree with
the California Supreme Court that the reasonable doubt standard is a "term[]
associated with traditional factfinding" and not suited to the "inherently moral
and normative" sentencing function . People v. Rodriguez, 42 Ca1.3d 730, 779
97
(Cal. 1986) .
It is unknown to the writer how many people on death row today were
sentenced without instructions requiring the jury to find death beyond a
reasonable doubt. It is unknown how many pled guilty and were sentenced to
death without the court finding that death was appropriate beyond a
reasonable doubt. For that reason, I write to emphasize that no such
instruction is either required or appropriate.
Lastly, and on another issue, I agree that the introduction of the tattoo
evidence in the guilt stage was error, although harmless . However, I believe
that it is admissible for sentencing purposes . Tattoos, like bumper stickers,
are manifestations of a person's attitude toward the world around them . It is
both relevant and probative as to sentencing.
Minton, C.J., joins .
ABRAMSON, J., CONCURRING IN PART AND DISSENTING IN PART: I
respectfully dissent from the majority's view, expressed in footnotes 2 and 3,
that the reasonable doubt instruction set forth at § 12 .08 of Kentucky
Instructions to Juries, Criminal should no longer be given . Although KRS
532 .025 does not require that the propriety of death be found beyond a
reasonable doubt, I believe that an instruction to that effect is consistent with
the Kentucky capital sentencing scheme . KRS 532 .025(2) requires that the fact
finder "shall consider . . . any mitigating circumstances or aggravating
circumstances otherwise authorized by law and any of the following statutory
98
aggravating or mitigating circumstances which may be supported by the
evidence . . . ." This direction of the jury's deliberations in a capital sentencing
phase as to the finding and weighing of aggravating and mitigating
circumstances and the indisputable proposition that "death is different," in my
opinion, render it appropriate to direct the jury to find the propriety of death
beyond a reasonable doubt before that sentence may be imposed. Even if that
particular instruction is omitted, however, I believe that the death penalty
"acquittal" concept enunciated by Justice O'Connor in both Rumsey, 467 U .S.
211 and in Sattazahn, 537 U.S . 117, would still apply to bar the prosecutor's
second attempt at securing the death penalty where the first jury chooses
something less than death as the appropriate sentence.
Venters, J ., joins .
SCOTT, J., CONCURRING IN PART AND DISSENTING IN PART:
Although I concur with the majority on the other issues, I must dissent as to
the majority's finding of an "implied acquittal" in Section I . of the majority
opinion (including their reversal of Commonwealth v. Eldred, 973 S .W.2d 43
(Ky. 1998) and Salinas v. Payne, 169 S.W .3d 536 (Ky. 2005)), as well as their
comment in Section IV. C . that, although they found the error regarding the
tattoo testimony to be harmless, it may not have been harmless as to
Appellant's death sentence .
As to the error regarding the introduction of the tattoo evidence, I fail to
see-given the voluminous evidence-how it could be found harmless in one
99
instance, yet be doubtful in another. Clearly, this error was harmless in all
contexts. As to the majority's "implied acquittal" of the death penalty, this
Court noted in Salinas that:
We are of the opinion that the succession of United States
Supreme Court cases since our decision in Eldred does not change
the effect of its holding. An "implied acquittal" of the death penalty
occurs only where the jury or reviewing court affirmatively finds
that the Commonwealth has failed to prove the existence of an
aggravating circumstance. If the jury has found that evidence of an
aggravating circumstance was proven beyond a reasonable doubt,
but nonetheless imposes a sentence of less than death, the
Commonwealth simply cannot be precluded on double jeopardy
grounds from seeking the full range of penalties, including death,
on retrial .
169 S.W .3d 536, 539 . Thus, we explicitly upheld Eldred.
However, this Court now departs from both. As I do not believe that the
Court was wrong in Eldred in 1998 or in Salinas in 2005 (with all concurring),
and in deference to all who attempt to comply with the decisions of this Court,
when and as we make them, I cannot join the majority here in reversing
course . Thus, I dissent and would affirm the conviction and death penalty
entered in this case consistent with our prior opinions in Eldred and Salinas .
Schroder, J., joins.
COUNSEL FOR APPELLANT:
Emily Holt Rhorer
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
Samuel N . Potter
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
Donna Lynn Boyce
Appellate Branch Manager
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
David Wayne Barr
Assistant Attorney General
Office of Attorney General
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort, KY 40601-8204
William Robert Long, Jr .
Assistant Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
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