Cole D. Ross v. Commonwealth of Kentucky

RENDERED: NOVEMBER 2, 2017
TO BE PUBLISHED

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2016-SC-000287-MR

COLE D. ROSS APPELLANT

ON APPEAL FROM GRAVES CIRCUIT COURT
V. HONORABLE TIMOTHY C. STARK, JUDGE
NO. 10-CR-00272

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE VENTERS

AFFIRMING

Appellant, Cole Douglas Ross, appeals from ajudgment of the Graves
Circuit Court convicting. him of murder and first-degree arson, and sentencing

him to two concurrent terms of life imprisonment. On appeal, Appellant

contends that his co1:1victions must he reversed because (1) he was entitled to a

directed verdict based upon the "inherent unbelievability" of the

Commonwealth's principal witness, Tonya Simmons; (2) the trial court erred by

denying his motion for a mistrial; and (3) the prosecutor engaged in

impermissible closing argument. For the reasons explained below, we affirm

the judgment.
 I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant was indicted for the murder of Keith Colston and first-degree

arson relating to the burning of the Colston residence. His first trial ended
I
. I

with a hung jury. Upon retrial, he was convicted and sentenced to life

imprisonment. On appellate review; th:l.s Court reversed the convictions and

remanded the case for a third trial. See Ross v. Commonwealth, 2015 WL

737573 (Ky. 2015).1

Upon remand, evidence presented at the third trial included the following

facts. Appellant was in a romantic relationship with a married woman named

Tonya Simmons. Tonya lived with Appellant until he lost his job and his home.·

At that point, Tonya returned to live with her husband and children while

Appellant moved into a spare room at the residence of his friends, Lisa and

Keith Colston. Keith had recently undergone hip surgery and still had

difficulty getting around. He also suffered from a respiratory condition that

occasionally required him to rely upon an oxygen tank.

On the day of Keith Colston's death, Lisa left the res~dence early in the

morning to go to work. Appellant spent much of the morning running errands

with Tonya and her two small grandchildren. According to Tonya, they made

several stops before she returned Appellant to· the Colston residence. The time

of their return is disputed. Tonya testified that she got Appellant back to the
)

I The reversal was based upon a violation of Batson v. Kentucky, 476 U.S. 79
(1986). The prosecutor admitted that duringjm:y selection he was intentionally
attempting to exclude women from the jury because he believed that women jurors
would be less likely than men to believe the Commonwealth's main witness.

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residence at 10:00 a.m., but a store receipt indicated that she was still running

errands at 11:15 a.m. Tonya testified that when she returned Appellant to.the

Colston residence, he asked her to go buy some beer for him, and she did so. A

receipt from a nearby store showed that Tonya purchased beer and other items

at 12:54 p.m. Tonya testified that when she returned with the beer, the trunk

of Appellant's car was open and various items belonging to him were packed

inside. As she walked to the back door, she saw flames inside and she heard

Keith inside calling for he.Ip. Tonya testifi~d that Appellant came to the back

door, pushed her away, and assured her that he would help Keith .

.Tonya then returned to the front of the residence, and from that vantage

point, she saw Appellant pick up two bottles of charcoal lighter fluid from the
)

front porch and take them into the burning residence. ·Keith was still calling

for help. Tonya called 911 to report the fire; her call was logged in at 1: 14 p.m.

She testified that Appellant then emerged from the burning residence, got into

his car, and drove away before emergency responders arrived.

Instead of remaining at the scene to tell responders what she had seen,

Tonya testified that she had to pick up her sister and her niece at a local

hospital so she, too, left the scene of the crime she claimed to have witnessed.

Despite numerous· opportunities, Tonya did no~ report what she saw until three

days later, when she told her story to police. Tonya testified that she intended

to contact police sooner but was unable to do so because Appellant was

watching to ensure she did not contact the police.

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 Appellant's version of events differed significantly from Tonya's.

According to his statement to investigators, he last saw Keith around eight or

nine on the morning of the fire when he left to run errands. with Tonya. He
. .
testified that he, not Tonya, bought the beer and that he did so at 1 :41 p.m.

Appellant claimed he first learned about the fire when Lisa Colston contacted

him with the news later that afternoon. He then went to Lisa's grandmother's

home to console Lisa and other family members who gathered there after

learning that Keith's body was found in the charred remains of the home.

Appellant returned to the scene with Lisa to talk to investigators.

Colston's severely burned body was found lying face up in the hallway of

the home. Expert testimony· suggested. that this body position was· inconsistent

with death by smoke inhalation because most smoke inhalation victims are

found in a face-down position. Evidence also indicated that the carbon

monoxide level in Colston's body at the time of death was too low to be fatal

absent other contributing circumstances. Samples of the unburned carpet and

subflooring from beneath Colston's body indicated the presence of "medium

petroleum distillates." Charcoal lighter fluid is classified as a medium

petroleum distillate. The scientific eVidence accordingly indicated that Colston

burned to death and that the fire was deliberately set .

. At the conclusion of the third trial, Appellant was again convicted and

sentenced to life imprisonment. This appeal followed.

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 II. APPELLANT WAS NOT ENTITLED TO A DIRECTED VERDICT BASED
UPON INHERENTLY UNBELIEVABLE TESTIMONY
Appellant first contends that he was entitled to a directed verdict

acquitting him of both charges.· A defendant is entitled to a directed verdict of

acquittal when~ after all fair and reasonable inferences from the evidence are

drawn in favor of the. Commonwealth, the evidence is insufficient to induce a

reasonable juror to believe beyond a reasonable doubt that the defer:idant is

guilty. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991).

Appellant does not dispute that the evidence, when taken at face value

and viewed in the light most favorable to the Commonwealth, satisfies the

Benham standard. He notes, however, that the sufficiency of the evidence to

convict him depends entirely upon Tonya's claim to have been an eyewitness to

his involvement in the crimes, and that without her critical testimony, the

evidentiary calcuius shifts to insufficiency under the Benham standard. He

contends that Tonya, the only witness linking him to the crime, was so utterly

incredible and untrustworthy as a witness that all of her uncorroborated

testimony was unworthy of belief as a matter of law and should have been

disregarded· in the directed verdict analysis,

Appellant bases his characterization of Tonya's credibility upon her

demeanor at trial, the incon~istencies in her testimony at the three trials, and

the inconsistencies in her third-trial testimony and other, more credible

evidence. He also notes that Tonya's words were often "slurred and mumbled."

He directs our attention to the fact several times as she testified, she had to be

reminded to speak clearly and into the microphone. He notes that she had .

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difficulty remembering facts, despite it being her third time to testify at a trial

on the subject, and that the prosecutor frequently had to prompt her with

leading questions to which Appellant's objections were sustained. He also

notes that defense counsel began his cross-examination of Tonya by asking her

if she was thinking clearly and if she had anything to drink that day. Tonya

denied that she had been drinking or taking intoxicants. Appellant also

reminds us that Tonya claimed no knowledge of the crime for three days.

Our review of the record compels us to agree that Tonya lacked many of

the qualities commonly associated with credibility and that she modeled many

of the flaws identified by Appellant. Appellant correctly cites authority which

recognizes that, in exceptional circumstances, a witness's testimony may be so

improbable and implausible that it mu.st be disregarded as having absolutely

no probative value as a matter of law. ·

However, upon examination of those authorities, we conclude that such

exceptional circumstances do not arise because a particular witness is so

lacking in the objective indicators of trustworthiness as to remove from her·

testimony all vestiges of credibility. The exceptional circumstances, which have

authorized the unusual measure advocated by Appellant, arise when the

substance of the testimony, detached from the personal credibility of the

witness who bears it~ is so laden with doubt and implausibility that it cannot

rationally be regarded as a fact capable of supporting a verdict. "It is only

where the testimony is so incredible on its face as to require its rejection as a

matter of law that the jury will not be permitted to consider it." Daulton v.

6.
Commonwealth, 220 S.W:2d 109, 110 (Ky. 1949)·(emphasis added). As the

applicable cases ilh.1strate, it is the inherent lack of probative value in the

testimony itself, not the witness's lack of credibility, that allows the court to

disregard .it.

The point is clearly illustrated by a case cited by Appellant, Coney Island

Co~ v. Brown, 162 S.W.2d 785 (Ky. 1942), in which our predecessor court

reversed a judgment after concluding that the verdict rested upon evidence that

was not worthy of.belief. The plaintiff in Coney Island testified that the

riverboat upon which she was a passenger started into motion with a sudden

jerk, which caused her to fall. The appellate court concluded, however, that it

was not possible under the "laws of physics and mechanics" for a paddlewheel

riverboat to suddenly lurch forward as described by the plaintiff. The Court

explained:

It is, to be sure, ordinarily the function of a jury_ to determine the
weight and effectiveness of the evidence. But ... the jui-y may not
. . . base its verdict upon a statement as to what occurred or how
something happened when it is opposed to the laws of nature or is
clearly in conflict with the scientific principles, or base its verdict
upon testimony that is so incredible and improbable and contrary
to common observation and experience as to be manifestly without
probative value.

Id. at 787-88 (citations omitted).

Similarly, in Louisville & N.R. Co. v. Chambers, 178 S.W. 1041 (Ky. 1915),

a plaintiff claimed that she was injured by the violent force of a train wreck

near her home. The court determined-that the plaintiffs description of being

thrown from her bed and onto a rocking chair was "inherently impossible; there

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was· no force there present and operating upon her which could have produced

such a result; and her testimony in that respect is impeached by all the

physical facts, concerning which there is and.can be no dispute." Id. at 1042.

It is undoubtedly well settled in this jurisdiction that the credibility
of witnesses is for the jury; that upon a motion for a directed
verdict the evidence for the adverse party must be taken as true,
and every reasonable inference fairly deducible therefrom must be
. indulged; ... ; Of necessity, these rules cannot apply where the
only evidence upon which such adverse party rests his right to
succeed consists of a statement of alleged facts, inherently
impossible and absolutely at variance with well-established and
universally recognized physical laws.

Id. at 1043.

Appellant also relies upon Davis v. Commonwealth, 162 S.W.2d 778

(Ky. 1942), but we find that case, too, fails to support his argument. In Davis,

the Court did not strike or disregard testimony it deemed to be incredible.

Instead, it did the opposite. The court determined that the jury had

disregarded the unimpeached evidence of the defendant's "almost conclusively

established" alibi, and so it set aside the jury's verdict as being "against the

weight of the evidence." The case was remanded for a new trial in which a

"fuller development of the facts so that the guilt of the accused, if he is guilty,

may be more certainly determined." Id. at 780.

We summarize the rule in this way: testimony admitted into evidence

must be· disregarded during the directed verdict analysis when the substance of

that testimony is so extrao~dinarily implausible or inherently impossible as to

render it manifestly without probative value or patently unworthy of belief. The

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rule is not, as Appellant posits, that testimony admitted into evidence must be

disregarded due to the witness's extraordinary lack of credibility as

demonstrated by the usual manifestations of untrustworthiness.

Tonya's lack of credibility could have induced a jury to disbelieve her, but

it di~ not render the substance of her testimony "inherently impossible and

· absolutely at variance with well-established and universally recognized

physical laws."2 Unlike the. testimony in. Coney Island alleging the abrupt lurch

into motion of a paddlewheel riverboat, the conduct Tonya attributed to

Appellant was ~ot so "contrary.to common observation and experience as to be

manifestly without probative value;"3 nor was her testimony in conflict with

"almost certainly established" facts like the alibi in Davis.

Appellant gives us plenty of reasons to disbelieve Tonya, but the

substance of her testimony describing Appellant's role in the crime is not so

extraordinarily implausible or inherently impossible that it is manifestly

without probative value or patently unworthy of belief; it could have happened

as she testified. Consequently, we conclude that the credibility and weight to

be given to Tonya's testimony remained within the province of the jury, and

therefore, was necessarily included in the body of evidence to be considered

when deciding whether a directed verdict was proper.

Appellant's argument on this. issue treads very closely to the evidentiary

boundary that distinguishes the credibility of a witness from the competence of

2chambers, 178 S.W. at 1043.
3 Coney Island, 162 S.W.2d at 788.

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 a witness. Credibility relates to the witness's truthfulness and the weight

placed upon that witness's testimony relative to other evidence. Assessing the

credibility of a witness and the weight given to her testimony rests "within the

unique province of the jury [or finder-of-fact]." McDanierl v. Commonwealth, 415

S.W.3d 643, 654 (Ky. 2013). Competence, however, relates to the qualifications

of a person to appear as a witness and testify in a trial or hearing. See KRE

601.4 "It is within the sound discretion of the trial court to determine whether

a witness is competent to testify." Bart v. Commonwealth, 951 S.W.2d 576,

579 (Ky. 1997) (citation omitted).

Striking Tonya's testimony because of her apparent or perceived

untrustworthiness borders very closely upon declaring her incompetent to

testify in violation of KRE 601. It also improperly shifts the credibility

determination from the jury to the judge. As cautioned by Professor Lawson,

the power to disqualify witnesses "should be applied grudgingly, only against

the 'incapable' witness and never against the 'incredible' witness, since the

4 KRE 601 states:
(a) General. Every person is competent ,to be a witness except as otherwise
provided in these rules or by statute.
(b) Minimal qualifications. A person is disqualified to testify as Rwitiless if the
trial court determines that he:,
.
(1) Lacked the capacify' to perceive accurately the matters about which he
· proposes to testify;
(2) Lacks the capacity to recolleCt facts;
(3) Lacks the capacity to express hirriself so as to be understood, either directly
or through an interpreter; or
(4) Lacks the capacity to understand the obligation of a witness to tell the truth.

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 triers of fact are particularly adept at judging credibility." Robert G. Lawson,

The Kentucky Evidence Law Handbook§ 3.00[2][b] at 239 (5th ed. 20_13)

(quoting the Evidence Rules. Study Committee, Kentucky Rules of Evidence-

Final Draft, p. 54 (Nov. 1989)).

In summary, we are confident that whatever deficiencies existed to

detract from Tonya's credibility, her testimony was correctly et?-trusted to the

jury, rather than trial court. We reject Appellant's argument that Tonya's

testimony should have been,· in effect, stricken from the record as inherently

unreliable, and conclude that Appellant was not entitled to a drrected verdict.

III. NEWS REPORT ABOUT THE TRIAL DID NOT WARRANT A MISTRIAL
After the swearing of the jury but before the presentation of any evidence,

Appellant requested a mistrial based.upon a news report about the trial

broadcast by a television station the night before. The broadcast included an

interview with the prosecutor informing viewers that he was "frustrated"

because Appellant's previous trial for these offenses was reversed ·on appeal

due to a violation of jury selection rules, and that "all of the evidence was good. ·

. [The appellate court] upheld every bit of the evidence."

The jury had beeri previously admonished tO avoid any news accounts

about the trial .. We presume jurors follow the admonitions of the trial court.

Tamme v. Commonwealth, 973 S.W.2d 13, 26 (Ky. 1998). When asked if they

. had watched the previous evening's news broadcast, many jurors indicated

that they generally watched television news, but ~one admitted to having seen

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 that particular broadcast. Near the conclusion of the trial, the trial court again

asked the jurors whether they had seen any media coyerage of the trial. All

jurors indicated that they had not.

"The theory of our system is that the conclusions to be· reached in a case

will be induced only by evidence and argument in open court, and not by any

outside influence, whether of private talk or public print." Sheppard v.

Ma.Xwell, 384 U.S. 333, 351 (1966) (quoting Patterson v. Colorado ex rel.
. I '
Attorney General, 205 U.S. 454, 462 (1907)). News coverage of criminal trials,

as in the Sheppard case, can be a disruptive and prejudicial impediment to a

fair trial, but we also recognize that the news media plays a valuable and

important role in our legal system, as reflected in the constitutional right to an

open and public trial. 5 "The press does not simply publish information about

trials but [also] guards against the miscarriage of justice by subjecting the

police, prosecutors, and judicial processes to extensive public scrutiny and

criticism." 384 U.S. at 350. Appellant refers to the news report as "improper"

but we see nothing "improper" about the television station informing the public
'
about the ongoing trial proceedings. Nevertheless, a juror's disobedience to the

trial court's admonition would be improper, as would proceeding to try the case .

after jurors had been improperly influenced by a news account. But that dl.d

not happen here.

s United States Constitution, Amendment VI: "In all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial ...."; Kentucky
. Constitution, Section 11: "In all criminal prosecutions the accused ... shall have a
speedy public trial by an impartial jury of the vi~inage ...."

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 We have held in connection with ajury's possible exposure to press

reports about a case that "the mere fact that jurors may have heard, talked, or

read about a case" does not require a change of venue "absent a showing that

there is a reasonable likelihood that the accounts or descriptions of
. . the

investigation and judicial proceedings have prejudiced the defendant. . ..

Prejudice must be shown unless it may be clearly implied in a given case from

the totality of the circumstances." Brewster. v. Commonwealth, 568 S.W.2d

232, 235 (Ky. 1978).6 Brewster further notes that "a showing of actual

prejudice is unnecessary if the procedure involves such a probability that

prejudice will result that it is deemed inherently lacking in due process." 568

S.W.2d at 235 (citing Estes v. Texas, 381 U.S. 532 (1965)).

Appellant has failed to demonstrat~ any prejudice arising from the

broadcast. All jurors indicated that they had not seen the report, and .

therefore, no prejudice could possibly arise from it. In order for a trial judge to

grant a mistrial the record must reveal a manifest necessity for such an action

or an urgent or real necessity. Skaggs v. Commonwealth,. 694 S.W.2d 672, 678

(Ky. 1985) (citations omitted). 7 Absent actual prejudice, we conclude that the

trial court properly declined Appellant's request to declare a mistrial.

6 Brewster addressed the issue in the context of a change of venue motion, but
the same concern of prejudice arising from exposure to news reports is present here.
1 Vacated in part by Skaggs v. Parker, 235 F.3d 261 (6th Cir. 2000).

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 IV. THE TRIAL COURT PROPERLY ADDRESSED THE PROSECUTOR'S
IMPROPER COMMENT IN CLOSING ARGUMENT
Finally, we .address Appellant claim that his convictions should be

reversed because the prosecutor niade the following comment in his closing

argument suggesting that by imposing ·a life sentence, the jury could control

"how Gqives County feels about these type of crimes." Appellant objected to

the statement and the trial court sustained his objection and admonished the

jury to disregard the statement. Appellant requested no other relief.

Since the trial court granted Appellant all that he requested, there is no

error for us to review. The prosecutor's comment was, as reflected by the trial

court's ruling, improper, but we presume that jurors heed the admonitions of

the trial court. Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003).

Therefore, any prejudicial effect of the improper comment was rendered

harmless.

However, even if we assume that the trial court should have gone further

to eliminate any possible prejudice from the comment, we are satisfied upon

review that manifest injustice required for reversal .under the substantial error
rule, RCr 10.2~, did not occur. Appellant is entitled no other relief on this

issue.

V. CONCLUSION
For the foregoing reasons, we affirm the judgment of the Graves Circuit

Court.

All sitting. All concur.

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 COUNSEL FOR APPELLANT:

Linda Roberts Horsman
Assistant Public Advocate

COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Micah Brandon Roberts
7 Assistant Attorney General

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