KENNETH P. GATEWOOD V. COMMONWEALTH OF KENTUCKYAnnotate this Case
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RENDERED : MAY 19, 2011
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KENNETH P. GATEWOOD
ON APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
NO . 08-CR-001184
COMMONWEALTH OF KENTUCKY
MEMORANDUM OPINION OF THE COURT
A Jefferson Circuit Court jury found Appellant, Kenneth Gatewood, guilty
of murder, for which he received a thirty-year prison sentence . He now appeals
as a matter of right. Ky. Const . § 110(2) (b) .
Appellant now alleges four assignments of error : (1) the trial court
abused its discretion in denying his motion for continuance ; (2) the trial court
erroneously precluded him from cross-examining Rochelle Jackson and from
introducing Christopher McPherson's statement ; (3) the trial court erred by
denying his motion for directed verdict ; and (4) prosecutorial misconduct arose
from the government asking Derrick Small to characterize Detective Hoffman
as a liar, implying that Appellant "bought" Small's testimony with drugs,
shifting the burden of proof onto Appellant, and asking jurors to speculate
about future dangerousness when fixing the penalty . And, in the event this
Court determines none of his allegations merit relief individually, Appellant
claims he should be entitled to relief on the basis of cumulative error.
Appellant was indicted by a Jefferson County grand jury and charged
with one count of murder, first-degree robbery, and tampering with physical
evidence. At trial, the jury heard testimony from Rochelle Jackson, who
indicated that she was in the Sheppard Square area of Louisville on March 17,
2006. Early that morning, Jackson heard two shots ; although she did not see
who fired the first shot, she saw Appellant fire the second shot which struck
the victim, Kerivan Vargas . Jackson further testified that it appeared Vargas
was trying to get out of a car when Appellant shot him. According to Jackson,
she again saw Appellant later that morning, at which time he said he had shot
Vargas because the victim did not heed his instructions.
Nina and Ron Stevenson also testified on behalf of the Commonwealth .
Nina testified that Appellant came to the home she shared with Ron in the
early morning of March 17, 2007, wherein Appellant told Ron that he shot
Vargas because he did not "give up" drugs or money . Although Ron believed
that Appellant's visit did not occur on the day of the shooting, he otherwise
corroborated Nina's testimony. According to Ron, Appellant told him that
"[Vargas] should have gave it up, so I shot him."
Appellant called Derrick Small to undermine the testimony of Jackson .
According to Small, he and Jackson had been on the back porch of his
mother's apartment at the time of the shooting and that, from the porch,
Jackson could not have seen the shooting. Small also testified that he only
heard one shot at the time of this incident .
The Commonwealth rebutted Small's testimony by calling Detective Gary
Hoffman . Detective Hoffman testified that, on two occasions, Small told him
that he was inside his mother's house at the time of shooting. Detective
Hoffman further testified that Small also told him that he heard two shots
when he gave his prior statements.
Concha Robinson testified on behalf of Appellant, who supported Small's
contention that Jackson had been on the back porch at the time of the
shooting. And Appellant offered his own narration at trial, denying his
involvement in the shooting and further testifying that, although he heard
people arguing over money and then a shot, he could not see who was involved
or what was happening, as he was on the porch of a residence away from the
As it had already directed a verdict of acquittal on the charge of
tampering with physical evidence, the trial court submitted the case to the jury
on charges of murder and first-degree robbery. The jury found Appellant guilty
of murder, found him not guilty of first-degree robbery, and recommended a
thirty-year prison sentence . This appeal followed .
A. Motion for Continuance
Appellant argues that the trial court erred when it refused to grant a
continuance of less than one day so that defense counsel could present an alibi
witness.' Because his trial counsel failed to properly follow RCr 9.04, we reject
Appellant's argument .
RCr 9 .04 outlines the requirements. t o move for continuance due to the
absence of a witness :
The court, upon motion and sufficient cause shown by either
party, may grant a postponement of the hearing or trial . A motion
by the defendant for a postponement on account of the absence of
evidence may be made only upon affidavit showing the materiality
of the evidence expected to be obtained, and that due diligence has
been used to obtain it. If the motion is based on the absence of a
witness, the affidavit must show what facts the affiant believes the
witness will prove, and not merely the effect of such facts in
evidence, and that the affiant believes them to be true. If the
attorney for the Commonwealth consents to the reading of the
affidavit on the hearing or trial as the deposition of the absent
witness, the hearing or trial shall not be postponed on account of
the witness's absence . If the Commonwealth does not consent to
the reading of the affidavit, the granting of a continuance is in the
sound discretion of the trial judge .
(Emphasis added) .
In McFarland v. Commonwealth, 473 S.W .3d 121, 122 (Ky. 1971), our
predecessor Court found no basis to evaluate whether there was error in the
denial of the continuance in the absence of an RCr 9 .04 affidavit. Similarly,
Appellant's trial counsel told the trial court that "the gist of [the alibi witness]
testimony is that he was also at the back of the building and observed [Appellant] at
the back of the building, and they both went to investigate, to see, the shooting and
that [the alibi witness] felt that [Appellant] could not have gotten from the location
of the shooting to where he was in the period of time after the shot ."
the Court of Appeals found no abuse of discretion when a trial court denied
continuance in order to secure testimony where no affidavit was filed in
support of the motion. McIntosh v. Commonwealth, 582 S .W.2d 54 (Ky. App.
In this case, Appellant concedes that he did not present the trial court
with an affidavit as required by RCr 9 .04. According to Appellant, though, we
should ignore his counsel's procedural failings because to do otherwise would
elevate form above substance . We find this argument unpersuasive and
decline to remedy Appellant's procedural defects .
Because Appellant failed to submit an affidavit in support of his motion
as required by the rules of criminal procedure, we cannot say the trial court
abused its discretion in denying the motion .
B. Evidentiary Issues
Appellant next alleges that the trial court erroneously precluded him
from cross-examining Rochelle Jackson and from introducing Christopher
McPherson's statement to police .
1 . Cross-Examination of Rochelle Jackson
Appellant contends that the trial court erred by sustaining the
Commonwealth's objection to him cross-examining Jackson -regarding an
altercation with Appellant's girlfriend . According to Appellant, sustaining the
objection denied him his right to confront Jackson and the evidence that
Jackson had been in an altercation with Appellant's girlfriend was relevant to
show her motive for testifying against him.
The Commonwealth responds that Appellant's right to confrontation was
satisfied because Jackson testified and was subject to cross-examination .
According to the Commonwealth, the trial court properly limited crossexamination on the altercation because it was irrelevant and potentially
confusing . We agree .
The Supreme Court has long recognized that "[t]he Sixth Amendment to
the Constitution guarantees the right of an accused in a criminal prosecution
`to be confronted with the witnesses against him .' Davis v. Alaska, 415 U .S .
308, 315 (1974) ; See also Ky . Const. § 11 ; Williams v. Commonwealth, 569
S.W .2d 139 (Ky. 1978) . And, of course, the "primary interest secured by [the
confrontation clause] is the right of cross-examination ." Davis, 415 U .S . at 315
(citing Douglas v. Alabama, 380 U.S . 415 (1965)) .
Via cross-examination, an accused can attack a witness' credibility "by
revealing possible biases, prejudices, or ulterior motives of the witness as they
may relate directly to issues or personalities in the case at hand ." Id. at 316.
However, the scope of such examination is not without limitation :
[O]nce the essential facts constituting bias have been admitted, a
trial court 'may, of course, impose reasonable limits on defense
counsel's inquiry into the potential bias of a prosecution witness, to
take account of such factors as `harassment, prejudice, confusion
of the issues, the witness' safety, or interrogation that [would be]
repetitive or only marginally relevant . . . . ' Olden v. Kentucky, 488
U .S . 227, 232 (1988), quoting Delaware v. Van Arsdall, 475 U .S .
673, 679 (1986) .
Weaver v. Commonwealth, 955 S .W.2d 722, 726 (Ky. 1997) (emphasis added) .
In this case, Jackson testified that Gatewood shot Vargas . On crossexamination, Jackson further testified that she and Appellant's girlfriend had
engaged in an altercation . The trial court, though, prohibited Appellant from
eliciting details of that altercation from Jackson because it believed such
details to be irrelevant.
Jackson's testimony provided evidence that she had been in a prior
altercation with Appellant's girlfriend . As. a result, essential facts constituting
bias were admitted into evidence . Id. Therefore, Jackson gave the jury enough
information to permit a fair appraisal of her possible bias . 2 Id. Based on the
admission of the altercation and the legitimate desire to circumscribe jury
confusion amidst marginally relevant evidence, we believe that the trial court's
ruling was a reasonable limitation on Appellant's attempted exploration into
Jackson's motive or bias . Id.
2. Christopher McPherson's Statement
Appellant also alleges that the trial court erred when it prevented him
from questioning Detective Hoffman as to a statement given by Christopher
McPherson, who did not testify at trial . In support, Appellant cites KRE 803(1),
Appellant points this Court to our decision Barrett v. Commonwealth, 608 S.W.2d
374 (Ky. 1980), to demonstrate that essential facts constituting bias were not
admitted into evidence . Appellant's reliance, though, is misplaced . In Barrett, a
government witness revealed hostility between himself and the appellant, stating
that "every time we get mixed up with them ([the appellant's family}) one of us wind
up in trouble." Id. at 375 . Later, the trial court denied the appellant an
opportunity to set forth the grounds for such familial hostility, which included a
fight, arson, and a shooting. Id. Conversely, in this case Jackson went beyond
making a vague reference to hostility, as she testified that she and Appellant's
girlfriend had engaged in an altercation . Unlike Barrett, wherein a fact-finder could
only speculate as to the cause of the "bad blood" between the families, the jury here
thus enjoyed sufficient facts to fairly appraise potential bias.
argues that he intended to use McPherson's statement to impeach Jackson's
testimony, and, essentially, contends that our state's evidentiary rules must
yield to his right to present a defense . We reject each contention .
a. KRE 803(1)
KRE 803(1) provides that present sense impressions "are not excluded by
the hearsay rules ." A present sense impression is "[a] statement describing or
explaining an event or condition made while the declarant was perceiving the
event or condition, or immediately thereafter." KRE 803(l) (emphasis added) .
Time is thus an important element of the present sense impression exception.
Jarvis v. Commonwealth, 960 S.W.2d 466, 469 (Ky. 1998) .
In Young v. Commonwealth, 50 S.W.3d 148, 167 (Ky. 2001), this Court
deemed a statement by an unavailable witness to a police officer to not be a
present sense impression because it "was not made contemporaneously with
the event she was describing or immediately thereafter ." The witness provided
the statement approximately seven minutes after the incident occurred. Id. at
Here, police interviewed McPherson four hours after the shooting. If a
statement made merely seven minutes after an event cannot be considered
"immediately thereafter" under KRE 803(1), a statement made four hours after
a shooting certainly does not qualify . Thus, McPherson's statement cannot be
admitted pursuant to KRE 803(l) .
Impeachment constitutes an attack upon the credibility of a witness . 81
Am . Jur. 2d Witnesses § 828 (citing State v. Anderson, 364 S .E.2d 163 ) 164
(N.C . Ct. App . 1988) . Therefore, it must be remembered that the purpose of
impeachment is to attack one's credibility - not to prove the facts stated.3 Id.
(citing People v. McKee, 235 N.E .2d 625, 628 (111 . 1968) . Furthermore, the
impeachment of a witness must be conducted as prescribed by law. Id.
In Kentucky, a "witness may be impeached by the use of any evidence
relevant to testimonial credibility ." R. Lawson, Kentucky Evidence Law
Handbook, § 4 .00(A) (2d. ed . 1984) (emphasis added) . For instance, an
ordinary witness may be impeached by introducing evidence of bias, interest,
or hostility, prior inconsistent statements, character evidence, and criminal
convictions . Lawson, §§ 4.10, 4 .15, 4 .20, 4 .25 (4th ed . 2003) ; See also KRE
608 ; KRE 609; KRE 613 .
Unlike evidence showing a witness' interest, bias, hostility, inconsistent
statements, character, or prior convictions, an inconsistency between one
witness' testimony of the events and that of another is not impeachment . Such
a conclusion would blur the distinction between evidence offered for the truth
of the matter asserted and evidence offered to contest testimonial credibility,
thereby rendering our well-established hearsay rules moot . See, e.g., KRE 801 .
3 We acknowledge, though, that a prior inconsistent statement can be used as
substantive evidence . Brock v. Commonwealth, 947 S .W.2d 24, 27 (Ky. 1997); See
also KRE 801A(a)(1) . However, a declarant must at least be questioned regarding
the prior inconsistent statement before evidence of it may be offered, unless the
declarant is absent and the impeaching party acted in good faith. KRE 613(a) .
In this case, defense counsel made an avowal that McPherson's
statement of the events "was significantly different" from Jackson's testimony .
McPherson told detectives that, from the passenger seat of a car, he watched
Vargas go up onto a porch and talk to someone he believed to be a woman. As
the woman shut the apartment door and Vargas began to walk away, he
walked up to the window of a white car and spoke with the occupant.
According to McPherson, the passenger got out of the car, approached Vargas,
and shot him. Admittedly, McPherson's statement contrasts Jackson's
narrative, as she testified that she heard two shots, that she was "right there at
the corner" and saw Appellant shoot Vargas, and that Vargas was shot as he
attempted to get out of his car.
While McPherson's statement may have been "significantly different"
from Jackson's testimony, we cannot say that it was relevant to testimonial
credibility or impeachment . As a result, the trial court correctly recognized
that McPherson's statement was not being admitted to impeach Jackson, as it
was clearly being offered for the truth of the matter asserted therein . KRE
801 (a) . Thus, it was hearsay:
. . . A legitimate nonhearsay use of an out-of-court statement
always involves relevancy in the mere utterance of the words
comprising the statement (i.e., a logical connection between the
utterance of the words and some material element of the case) .
Absent such relevancy, a claim of nonhearsay must be regarded as
nothing more than a pretext for violating the hearsay rule .
Lawson, § 8 .05 (citation omitted) (emphasis in original) ; See also Moseley v.
Commonwealth, 960 S .W.2d 460, 461-462 (Ky. 1997) .
We agree with the trial court and hold that Appellant's claim of a
nonhearsay purpose (i.e. impeachment) in offering McPherson's statement to be
nothing more than a pretext for violating the hearsay rule .
c. Right to Present a Defense
Unable to qualify McPherson's statement under an established hearsay
exception or offer it for another purpose besides the truth of the matter
asserted, Appellant finally argues that the trial court's ruling, excluding
McPherson's statement, violated his right to present a defense . We disagree.
We heed the Supreme Court's repeated exhortation that "the
Constitution guarantees criminal defendants a meaningful opportunity to
present a complete defense ." Holmes v. South Carolina, 547 U .S. 319, 324
(2006) (internal quotations omitted) ; See also Chambers v. Mississippi, 410 U.S .
284, 294 (1973) ("The right of an accused .in a criminal trial to due process is,
in essence, the right to a fair opportunity to defend against the State's
accusations .") . However, "state and federal rulemakers have broad latitude
under the Constitution to establish rules excluding evidence from criminal
trials" because a "defendant's right to present relevant evidence is not
unlimited ." U.S. v. Scheffer, 523 U .S. 303, 309 (1998) (emphasis added) . This
latitude is impermissibly exceeded when an accused's right to present a
defense "is abridged by evidence rules that infring[e] upon a weighty interest of
the accused and are arbitrary or disproportionate to the purposes they are
designed to serve ." Holmes, 547 U .S. at 324 (internal quotations omitted)
(emphasis added) .
Here, Appellant sought to introduce McPherson's statement via a third
party, i .e . Detective Hoffman . Appellant, though, fails to argue that our
hearsay rules are either "arbitrary or disproportionate to the purposes they are
designed to serve." See Harrison v. Commonwealth, 858 S.W .2d 172, 176
(Ky.1993) (explaining that hearsay is inadmissible primarily due to its inherent
unreliability) . Instead, Appellant invites to us accept his bald assertion that
the trial court "significantly undermined fundamental elements of [his] defense"
because the jury deliberated without considering McPherson's statement .
Scheffer, 523 U .S. at 315. Just as we have already rejected Appellant's
invitation to obfuscate the dichotomy between evidence offered for the truth of
the matter asserted and evidence offered to contest testimonial credibility, we
must also decline to obliterate our hearsay rules .
Because McPherson's statement was inadmissible hearsay, the trial
court properly denied Appellant's request to have Detective Hoffman testify as
the differences between his statement and Jackson's testimony . We reiterate
our declaration in Mills v. Commonwealth, 996 S.W.2d 473, 489 (Ky. 1999) that
"Chambers . . . does not hold that evidentiary rules cannot be applied so as to
properly channel the avenues available for presenting a defense ." As in Mills,
exclusion of the testimony in question did not violate Appellant's right to due
process of law.4
C. Directed Verdict
Appellant next argues that the trial court erred when it failed to grant a
directed verdict due to an insufficiency of evidence . Appellant moved for a
directed verdict at the close of the Commonwealth's case and at the close of the
The Commonwealth responds that the trial court properly denied
Appellant's motion. The Commonwealth notes that it is the responsibility of
the jury to evaluate the credibility of witnesses and weigh the evidence . We
The standard of review for the denial of a directed verdict is set forth in
Commonwealth v. Benham, 816 S.W .2d 186, 187 (Ky.1991) :
[T)he trial court must draw all fair and reasonable inferences from
the evidence in favor of the Commonwealth. If the evidence is
sufficient to induce a reasonable juror to believe beyond a
reasonable doubt that the defendant is guilty, a directed verdict
should not be given . For the purpose of ruling on the motion, the
trial court must assume that the evidence for the Commonwealth
is true, but reserving to the jury questions as to the credibility and
weight to be given to such testimony .
For our purposes, "the test of a directed verdict is, if under the evidence
as a whole, it would be clearly unreasonable for a jury to find guilt ." Id. (citing
Commonwealth v. Sawhill, 660 S .W.2d 3 (Ky.1983)) ; See also Beaumont v.
We note that Appellant was permitted to introduce other evidence to both
undermine Jackson's testimony and show that he was not present at the scene of
the shooting via his own testimony, as well as that of Small and Robinson .
Commonwealth, 295 S.W . 3d 60 (Ky. 2009) . Thus, "there must be evidence of
substance, and the trial court is expressly authorized to direct a verdict for the
defendant if the prosecution produces no more than a mere scintilla of
evidence." Benham, 816 S .W.2d at 187-88 . However, we reemphasize that an
evaluation of the sufficiency of evidence depends on "whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable
doubt." Beaumont v. Commonwealth, 295 S .W. 3d 60, 68 (citing Jackson v.
Virginia, 443 U.S . 307, 319 (1979)) .
In this case, Jackson testified that she both saw Appellant with a gun in
his hand and saw him shoot Vargas. Nina and Ron Stevenson also testified
that Appellant confessed to the shooting. Viewing this testimony in the light
most favorable to the prosecution (and abstaining from evaluating the
credibility of these witnesses), we believe the Commonwealth set forth more
than "a mere scintilla of evidence ."
Because the testimony was sufficient to induce a reasonable juror to
believe beyond a reasonable doubt that Appellant murdered Vargas, we must
affirm the conviction .
D. Prosecutorial Misconduct
Appellant alleges four instances of prosecutorial misconduct : (1) asking
Derrick Small to characterize Detective Hoffman as a liar, (2) implying that
Appellant "bought" Small's testimony with drugs, (3) shifting the burden of
proof onto Appellant, and (4) asking jurors to speculate about future
dangerousness when fixing the penalty . We address each instance below and,
based on our analysis of each allegation, ultimately conclude that the
government's conduct did not violate Appellant's right to a fair trial .
1. Cross-Examination of Derrick Small
Appellant argues that the government committed prosecutorial
misconduct by asking Derrick Small to characterize Detective Hoffman's
testimony as a lie. Conceding that this issue was unpreserved, Appellant
requests palpable error review pursuant to RCr 10.26 . 5
The Commonwealth responds that, even if the questions were improper,
they did not amount to palpable error . We agree .
In Moss v. Commonwealth, 949 S.W.2d 579, 583 (Ky. 1997), this Court
held that "[a] witness should not be required to characterize the testimony of
another witness, particularly a well-respected police officer, as lying" because
doing so "places the witness in such an unflattering light as to potentially
undermine his entire testimony ." However, this Court also concluded that
such a line of questioning did not constitute palpable error. Id.
Here, the prosecuting attorney twice requested Small to characterize
Detective Huffman's testimony as a lie. However, Appellant's failure to object
RCr 10.26 reads :
A palpable error which affects the substantial rights of a party may be
considered by the court on motion for a new trial or by an appellate
court on appeal, even though insufficiently raised or preserved for
review, and appropriate relief may be granted upon a determination
that manifest injustice has resulted from the error.
compels us to follow our decision in Moss and again decline to regard such
improper questioning as palpable error, as we do not believe the questions in
this case resulted in a manifest injustice . 6
2. Implying Appellant "Bought" Testimony
Appellant also claims that the government improperly implied that he
"bought" Small's testimony with drugs during its guilt-phase closing argument,
thereby committing prosecutorial misconduct . As Appellant failed to
contemporaneously object during trial, he again requests palpable error review
pursuant to RCr 10 .26.
The Commonwealth responds that the prosecuting attorney's
characterization of Small's motive to testify falls within the wide latitude
afforded parties in making closing arguments . We agree .
In Padgett v. Commonwealth, 312 S .W.3d 336, 350 (Ky. 2010), we
succinctly outlined our precedent with respect to prosecutorial misconduct
during closing arguments :
Counsel has wide latitude during closing arguments . Brewer v.
Commonwealth, 206 S .W.3d 343, 350 (Ky. 2006) . The
longstanding rule is that counsel may comment on the evidence
and make all legitimate inferences that can be reasonably drawn
therefrom . East v. Commonwealth, 249 Ky. 46, 52, 60 S.W .2d 137,
139 (1933) . This Court recently explained the appropriate
standard of review for prosecutorial misconduct during closing
arguments, stating that reversal is required "only if the misconduct
is `flagrant' or if each of the following are satisfied : (1) proof of
We note that this Court repeatedly refused to find palpable error arising from a
Moss violation even when the death penalty has been imposed. See Ernst v.
Commonwealth, 160 S .W.3d 744, 764 (Ky. 2005) ; St . Clair v. Commonwealth, 140
S .W .3d 510, 554 (Ky. 2004); Caudill v. Commonwealth, 120 S.W.3d 635, 662 (Ky.
2004) ; Tamme v. Commonwealth, 973 S.W.2d 13, 28 (Ky. 1998) .
defendant's guilt is not overwhelming; (2) defense counsel objected;
and (3) the trial court failed to cure the error with sufficient
admonishment." Miller v. Commonwealth, 283 S .W.3d 690, 704
(Ky.2009) (emphasis removed, quoting Barnes v. Commonwealth,
91 S.W.3d 564, 568 (Ky. 2002)) . Additionally, this Court "must
always consider these closing arguments `as a whole.'" Id.
(quoting Young v. Commonwealth, 25 S .W.3d 66, 74-75 (Ky. 2000)) .
During his closing argument, the prosecuting attorney in this case
described Small, a witness testifying on behalf of Appellant, in the following
He's a little punk on a crack leash . I could walk into Sheppard
Square right now with a bag of crack and I could have ten people
in here saying whatever you want to hear'em say. I could hear'em,
they'd come in here and tell you it's Sunday, tell you the sky is
green and the grass is blue . And that's exactly what he is. That's
his dealer. That's his armed dealer . That's his street tough dealer.
That's his hood thug dealer. And he depends on him for crack and
doesn't want to cross him, so he's going to get his ass up here on
the chair, and sit down, and say what he wants him to say.
Unquestionably, the prosecution's closing argument sought to
characterize (and thereby attack) Small's motive to testify.? Yet, Appellant does
not contest that evidence had been introduced showing that Appellant had, on
prior occasions, supplied Small with controlled substances . Accordingly,
"enough evidence was introduced to make the prosecutor's inference
According to Appellant, the closing conveyed that, because Appellant was a drug
dealer, he would stoop to anything, including inducing a witness to testify for him,
in order to be acquitted of a crime . As a result, Appellant asserts that the closing
amounts to an introduction of evidence and his argument focuses on probativeness
and prejudicial value . In reviewing the closing, we view the prosecutor's statement
as a general assault on Small's motive, premised upon evidence admitted ; we
cannot say that the prosecutor introduced .evidence of a definitive transaction
between Appellant and Small to "buy" testimony. Accordingly, Appellant's claim of
error encompasses an entirely different review than a claim of evidentiary error .
Because the prosecutor's inference was reasonable, and in light of the
wide latitude afforded parties during closing, we find no error .
3. Improper Burden Shifting
Appellant next contends that the government improperly shifted the
burden of proof onto Appellant during its guilt-phase closing argument in
contravention of KRS 500 .070 .8 Specifically, Appellant argues the government
implicitly suggested that, because Appellant failed to identify the shooter, there
was no alternative suspect, thereby misleading the jury into believing Appellant
bore the burden . We disagree .
We consider "any burden shifting to a defendant in a criminal trial [to] be
unjust ." Butcher v. Commonwealth, 96 S.W .3d 3, 10 (Ky. 2010) . However,
counsel enjoy wide latitude during closing arguments and may comment on the
evidence presented at trial. Padgett, supra. Furthermore, we evaluate closing
arguments "as a whole." Id.
Here, the prosecuting attorney pointed out that, during his initial
statement to Detective Hoffman, Appellant claimed that he knew about the
Vargas shooting but denied any knowledge as to how it occurred, although he
then told Detective Hoffman that he knew who committed the offense after
KRS 500.070(1) states that "[t]he Commonwealth has the burden of proving every
element of the case beyond a reasonable doubt . . . ."
being charged with the crime . Despite this, as the prosecutor noted, Appellant
never told Detective Hoffman or the jury the name of the perpetrator.9
The government's closing did not, in any way, suggest that Appellant
failed to disprove an essential element . Rather, the closing merely recited the
evidence presented at trial, presumably to undermine Appellant's defense .
There was no error .
4. Speculation About Future Dangerousness
Finally, Appellant contends that the government committed error when it
argued for a stiffer penalty based upon what Appellant might do in the future.
However, this allegation of error was not preserved for review by an objection
from trial counsel. As such, any review undertaken by this Court would be
limited to palpable error review pursuant to RCr 10 .26.
Appellant, though, fails to request palpable error review. Accordingly, we
decline to evaluate the government's penalty-phase closing argument .
Shepherd v. Commonwealth, 251 S .W .3d 309, 316 (Ky. 2008) ("Absent extreme
circumstances amounting to a substantial miscarriage of justice, an appellate
court will not engage in palpable error review pursuant to RCr 10 .26 unless
such a request is made and briefed by the appellant.") (citations omitted) .
E. Cumulative Error
Having determined that none of the individual errors merit relief, we
address Appellant's request for relief on the basis of cumulative error .
Appellant's trial counsel told the trial court that "rumor and hearsay" was that
Patrick "LeeLee" Lewis was the shooter, but that counsel could not bring that sort of
hearsay onto the stand.
Although we agreed with Appellant that the prosecuting attorney
committed a Moss violation by twice requesting Small to characterize Detective
Huffman's testimony as a lie, we did not believe those questions resulted in a
manifest injustice and therefore declined to reverse and remand. And with
respect to the other allegations of error pertaining to prosecutorial misconduct,
as well as the denial of continuance, the cross-examination of Jackson,
McPherson's statement, and the denial of a directed verdict, we disagreed with
Appellant and found no error.
In McQueen v. Commonwealth, 721 S.W.2d 694, 701 (Ky. 1986), we held
that, because "the individual allegations have no merit, they can have no
cumulative value." Similarly, because the Moss violation did not warrant relief
individually, we cannot say, then, that it became meritorious when considered
cumulatively with other errors, as no such errors existed .
For the foregoing reasons, Appellant's murder conviction and
corresponding thirty-year prison sentence are affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT :
Julia Karol Pearson
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE :
Attorney General of Kentucky
Jason Bradley Moore
Assistant Attorney General
Office of Criminal Appeals
Attorney General's Office
1024 Capitol Center Drive
Frankfort, KY 40601-8204