RENDERED: NOVEMBER 2, 2017
TO BE PUBLISHED
2016-SC-000287 -MR u
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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 a judgment of the' Graves
Circuit Court
'
convicting
. . him of murder and first-degree arson, and sentencing
him to two concurrent terms of life impri!3onment. On appeal, Appellant
contends that his convictions must be reversed because (1) he was entitled to a
directed verdict based upon the "inherent unbelievability" of the
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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
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with a hung jury. Upon retrial, he was convicted and sentenced to life
imprisonment. On appellate review, this 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 incl:uded 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 arespiratory conditi~n 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
j
i The reversal was based upon a violation of Batson v. Kentucky, 476 U.S. 79
(1986). The prosecutor admitted that duringjury 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.
2
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 item~
at 12:54 p.m. Tonya testified that when she re~urned 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 help. 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, Tortya 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 defendant 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 di~regarded 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 illustrate, 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 jury 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 ahd 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; thatupon·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. testir;riony in Coney Island alleging the abrupt lurch
into motion of a paddlewheel riverboat, the conduct Tonya attributed to
Appellant was not 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]." McDaniel 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." Bari 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 appli~d grudgin~ly, 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· awitness except as otherwise
provided in these rules or by statute.
(b) Minimal qualifications. A person is disqualified to testify as a witiless if the
trial court determines that he:.
.
(I) 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 himself 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 summacy, we are confident that whatever deficiencies existed to
detract from Tonya's credibility, her testimony was correctly entrusted 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 directed 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 tefovision 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 tb 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 none 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 coverage 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 argu_ment in open court, and not by any
outside influence, whether of private talk or public print." Sheppard v.
Maicwell, 384 ~.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
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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 did
not happen here.
5 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 viqinage ...."
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We have held in connection with a jury'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 9f 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 demonstrate 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 u. 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 IIiade the following comment in his closing
argument suggesting that by imposing a life sentence, the jury could control
"how Gq1ves 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 thatjurors 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 10.26, 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
Assistant Attorney General
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Cole D. Ross v. Commonwealth of Kentucky
Combined Opinion