Hasan A. Saxton v. Commonwealth of Kentucky

RENDERED: DECEMBER 15, 2022
TO BE PUBLISHED

Supreme Court of Kentucky
2021-SC-0353-MR

HASAN A. SAXTON APPELLANT

ON APPEAL FROM GRAVES CIRCUIT COURT
V. HONORABLE KEVIN D. BISHOP, JUDGE
NO. 20-CR-00178

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE CONLEY

REVERSING IN PART & AFFIRMING IN PART

This case comes before the Court on appeal as a matter of right1 by

Hasan Saxton, the Appellant, from the judgment and sentence of the Graves

Circuit Court. After a jury trial, Saxton was convicted of first-degree

strangulation, tampering with physical evidence, second-degree persistent

felony offender, criminal mischief, possession of marijuana, and possession of

drug paraphernalia. 2 The jury recommended thirty years, but the trial court

reduced the sentence and imposed only twenty years.3

Saxton now alleges five errors: 1) unauthenticated physical evidence was

improperly admitted; 2) insufficient evidence to sustain a conviction for

1 Ky. Const. § 110(2)(b).
2 Saxton was also charged with first-degree rape but was acquitted. Therefore,
we omit the details pertaining to that charge in our recitation of the facts.
3 KRS 532.080 and 532.110.
tampering with physical evidence; 3) error in failing to direct a verdict on the

strangulation charge; 4) error in failing to declare a mistrial; and 5) a due

process violation by denying effective cross-examination of the victim. For the

following reasons, we reverse the convictions for tampering with physical

evidence and strangulation, as well as the concomitant convictions for

persistent felony offender based upon them, and the possession of drug

paraphernalia conviction. We affirm the conviction for possession of marijuana.

Saxton has made no argument regarding his conviction for criminal mischief.

We affirm that conviction to the extent it was appealed. Early v.

Commonwealth, 470 S.W.3d 729, 734 (Ky. 2015) (“[I]t is an appellant's burden

to present a complete record and to establish that an error is preserved for our

review.”). Because of our affirming some convictions, we address the failure to

declare a mistrial. We also address the cross-examination argument since it is

a novel constitutional issue and has ramifications beyond Saxton’s own case.

I. Facts
Hasan Saxton and Unique Robinson were engaged to be married. On

July 8, 2020, after spending the day together, the couple retired to their home.

Robinson did not feel good, so she laid down to sleep. Per Robinson’s

testimony, Saxton announced he was leaving to purchase weed. When

Robinson awoke, Saxton had yet to return so she phoned him. He informed her

he would be home shortly but inquired if anyone was at the home with her.

She answered no, the call ended, and she went back to sleep.

2
 Robinson then testified she awoke to Saxton screaming at her,

demanding to know who had been in the house. He tore the covers off her and

stood over her— “breathing hard and mad[,]” his eyes “kinda [sic] crazy”—

Robinson answered several times that no one had been in the house. Saxton

was recalcitrant. Robinson testified he slapped her, accused her of lying and

demanded she have sex with him to prove her fidelity. Robinson refused.

Saxton then grabbed her throat with his hand, squeezing, so that, as Robinson

testified, she could not scream nor breathe. Saxton then released her, spun her

around and locked her neck in his forearm, pinning her to the bed. Once more

he squeezed. Robinson testified she feared she would pass out. In desperation,

she managed to bite Saxton on his arm, and he released her. Robinson grabbed

her phone and dialed 911. When she began reporting the incident to the

operator, Saxton left the room, and eventually the home.

Among the responding police officers were Officers Rogers and Copeland

of the Mayfield Police Department. Officer Copeland encountered Saxton on a

public street not far from his home. He detained Saxton, placed him in the

back of his cruiser, and drove to the home to further aid the investigation. After

arriving, Officer Copeland went to speak with another officer. He returned and

noticed that Saxton was leaning forward in his seat. Saxton stated he was

trying to stretch his legs. Officer Copeland did not believe him and removed

Saxton to another cruiser. He then performed a search of the backseat and

body cam footage shows that, approximately eleven seconds after beginning the

search, he found a bag of marijuana under the driver’s seat. The video is not

3
clear, but Officer Copeland testified the bag was only partially under the

driver’s seat and that his cruiser was designed with a “blocker” under the

driver’s seat to prevent items from being hidden from sight by the seat. At some

point, a black plastic container and a burnt cigar containing marijuana were

also allegedly found on Saxton in a search incident to arrest performed by

Officer Rogers. Officer Rogers never testified to this, however, and the only

definitive proof such a search incident to arrest occurred is a citation report

completed by Officer Rogers. Officer Copeland’s testimony was only that the

plastic container “may have been” found on Saxton in a search incident to

arrest, and he only testified to that after reading the citation report to refresh

his memory. The report stated, “A search of the patrol vehicle and Saxton’s

person incident to arrest also revealed a small plastic container with a burnt

marijuana cigar inside.” The Commonwealth, however, clearly believed the

plastic container had been recovered during Officer Copeland’s search of the

vehicle. After playing Officer Copeland’s body cam footage showing that search

to attempt to refresh his memory, Officer Copeland still testified that he could

not recall finding the plastic container.

At trial, a multitude of incidents occurred which form the basis for

Saxton’s appeal. We address each in more detail in our analysis below. But

generally, the morning trial began, as Saxton and his counsel attempted to

walk past the front row of jurors to their table, the Commonwealth’s

investigator intervened and told them to approach the table by another

direction. It seems after a brief back-and-forth between the investigator and

4
defense counsel, Saxton and counsel were able to get to their table as originally

planned. During trial, Saxton attempted to cross-examine Robinson as to

whether she was ever informed of her rights under Marsy’s Law. The trial court

prohibited the line of inquiry twice; once during the cross-examination itself

and second, after a written motion and arguments in chambers were heard the

second morning of trial. Saxton argues this was a denial of his right to effective

cross-examination.

Saxton also objected to the introduction of several pieces of evidence;

namely, eight DNA swabs and accompanying reports, as well as the plastic

container and marijuana cigar. Saxton did stipulate to one swab, taken from

his bloody left forearm. The stipulation included that there was an injury on

his left forearm, it was bloody and a swab was taken, and transported to the

relevant lab for testing. For the other DNA swabs, as well as the plastic

container and cigar, Saxton argues a fatal flaw at the inception of the chain of

custody—no one testified to collecting the drug evidence from his person or

taking the swabs from Saxton and Robinson. Thus, he claims a basic failure to

link him to the evidence at the foundation. Because of this, Saxton requests

reversal of his convictions for strangulation, tampering with physical evidence,

and his two PFO and possession convictions.

The jury convicted Saxton of strangulation and tampering with physical

evidence, recommending ten and five years in prison respectively. But finding

him guilty of being a persistent felony offender (second degree), the jury

enhanced the sentences to twenty and ten years, respectively. The jury then

5
recommended the sentences be served consecutively for a total of thirty years;

with the misdemeanor sentences all being served concurrently with the thirty-

year felony sentences. The trial court, however, reduced the sentence to twenty

years. Saxton appealed, and we now address the merits.

II. Analysis

A. Marsy’s Law and Denial of Effective Cross-Examination
The first issue we address, because novel and most consequential,

regards Saxton’s allegation that Robinson’s testimony was coerced by threats of

the Commonwealth to charge Robinson with contempt of court if she did not

testify, which, if convicted, would necessarily impact her ability to regain

custody of her children.4 Importantly, Saxton frames this argument as

Robinson being forced to testify “under duress[,]” but not that Robinson was

forced to testify falsely or not testify at all. At the trial court, Saxton stated he

wished to investigate whether Robinson had been informed of her rights under

Marsy’s Law. Ky. Const. § 26A. The trial court prohibited that line of inquiry.

The next morning of trial, after filing a written motion, Saxton argued in

chambers

I should be able to inquire whether or not the victim was given her
constitutional rights under Marsy’s Law in order to be able to
consult with her about whether or not she was consulted as to how
she wanted the case to proceed, whether she wanted the charges to
go on, whether she wanted to go forward.

4 Robinson had been arrested at some point prior to Saxton’s trial. A special
prosecutor had been appointed to handle Robinson’s case because of the conflict
resulting from her being a testifying witness in this case.
6
Saxton then linked this to a larger issue of duress, wherein prior to trial

Robinson had expressed her feelings to Saxton that she was being “bullied” by

the Commonwealth and forced to testify against him. Trial counsel argued that

Robinson, by virtue of Marsy’s Law, had a “right to remain silent” in the same

manner as Saxton and that is what she wanted to investigate on cross-

examination.5 The trial court denied the motion and again prohibited that line

of questioning. Before proceeding with our analysis, we reiterate that a

witness’s credibility is always relevant. Myers v. Commonwealth, 87 S.W.3d

243, 246 (Ky. 2002). But there is no allegation that the Commonwealth coerced

Robinson to give false testimony, only that she was compelled to testify at all.

We will not analyze this issue under Marsy’s Law. That constitutional

provision explicitly states, “The accused shall not have standing to assert the

rights of a victim.” Ky. Const. § 26A. Moreover, it is only “[t]he victim, the

victim's attorney or other lawful representative, or the attorney for the

Commonwealth upon request of the victim [who] may seek enforcement of the

rights enumerated in this section . . . .” Id.6 Finally, “Nothing in this section or

any law enacted under this section shall be construed as creating: (1) A basis

for vacating a conviction; or (2) A ground for any relief requested by the

defendant.” Id. The plain, indubitable meaning of these three sentences is that

an accused defendant has no standing to assert the rights of his victim, and

5 This specific contention was not mentioned in the briefing before this Court,

and we will not address it.
6 It is also worth noting that the jury is not constitutionally empowered to

enforce the victim’s rights at the defendant’s trial either.
7
even if the victim’s rights are violated in the course of the criminal justice

process, said violation can never afford the basis for vacating a conviction on

direct appeal, a basis for collateral attack, or “any relief” whatsoever. We reject

the proposition that the defendant has a right to inquire into whether a victim

has been apprised of her rights under Marsy’s Law or that the defendant may

“consult” with the victim about whether those rights were being fulfilled to the

victim’s satisfaction during cross-examination, or indeed at any point in the

criminal justice process.

Saxton’s attempt to inquire into whether Robinson was informed of her

rights under the guise of witness credibility is nothing more than a subterfuge

to get around the explicit prohibitions of our constitution. In all cases, the

defendant has no valid interest to inquire into whether a victim has been

apprised of her rights under Marsy’s Law, or whether those rights are being

violated, because first, the constitution prohibits such a power being exercised

by the defendant; and second, because there is no relief available to the

defendant should a victim’s rights prove to be violated in any given case. We

cannot be clearer: the defendant has no authority to inquire into Marsy’s Law

matters and trial courts should not hesitate to squelch such a line of inquiry

from the defendant the moment it presents itself.

This does not mean, however, that the issue of whether Robinson’s

testimony was coerced cannot be analyzed under traditional rules. But because

the issue was framed under Marsy’s Law at the trial court, this argument is

unpreserved, and we review for palpable error. Only if there is a manifest

8
injustice will reversal of the conviction be warranted. RCr.7 10.26. “[T]he Sixth

Amendment right to confrontation must be analyzed whenever the accused is

prohibited from cross-examining a witness about his motive or bias.”

Commonwealth v. Armstrong, 556 S.W.3d 595, 602 (Ky. 2018). The right to

cross-examination is not absolute, however, and trial courts have wide latitude

to enforce reasonable limitations. Id. “To state a violation of the Confrontation

Clause, the defendant must show that ‘he was prohibited from engaging in

otherwise appropriate cross-examination designed to show a prototypical form

of bias on the part of the witness[.]’” Id. (quoting Delaware v. Van Arsdall, 475

U.S. 673, 680 (1986)).

There was no constitutional violation here because the use of the

coercive power of the state via subpoena to compel a witness’s presence at a

judicial proceeding is uncontroversial. It is in fact a guaranteed right. Ky.

Const. § 11. “To ensure that justice is done, it is imperative to the function of

courts that compulsory process be available for the production of evidence

needed either by the prosecution or by the defense.” United States v. Nixon, 418

U.S. 683, 709 (1974). Thus, even if Robinson did truly feel pressured or

“bullied” into testifying, that is the inherent nature of the subpoena power.8

Additionally, the line of inquiry Saxton sought to pursue per Marsy’s Law was

not “otherwise appropriate,” but rather constitutionally inappropriate. Nor

could it have revealed a “prototypical form of bias” on Robinson’s part because

7 Kentucky Rules of Criminal Procedure.
8 The word subpoena literally means “under penalty.”
9
being subpoenaed to testify does not in and of itself reflect on a witness’

credibility. It is a common practice throughout the Commonwealth. This is

especially true given Saxton has not alleged that Robinson was pressured to lie

on the stand. To the extent his argument might encompass a claim the

Commonwealth threatened Robinson with further prosecution, such an

argument is mere speculation and does not support the conclusion a violation

of Saxton’s right to confrontation occurred. Armstrong, 556 S.W.3d at 603. We

find no error in the trial court prohibiting Saxton from inquiring into

Robinson’s rights under Marsy’s Law.

B. Directed Verdict Rulings
Next, Saxton argues there was insufficient evidence to sustain the

tampering with evidence charge and the strangulation charge. Both come as

arguments that the trial court erred in failing to direct a verdict in his favor.

“On appellate review, 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, only then the

defendant is entitled to a directed verdict of acquittal.” Commonwealth v.

Benham, 816 S.W.2d 186, 187 (Ky. 1991). At the trial level, considering a

motion for directed verdict,

the 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.

10
Id.
On the tampering with physical evidence issue, Saxton argues our

recent case in Commonwealth v. James, 586 S.W.3d 717 (Ky. 2019) controls.

The Commonwealth argues Taylor v. Commonwealth, 987 S.W.2d 302 (Ky.

1998) controls. In accordance with our decision in Commonwealth v. Bell, __

S.W.3d __ 2022 WL 12196438 (Ky. 2022), Taylor is overruled as incompatible

with James. We, therefore, agree there was insufficient evidence to sustain a

tampering with evidence conviction. “[W]here a defendant merely drops, throws

down, or abandons drugs in the vicinity of the defendant and in the presence

and view of the police, and the officer can quickly and readily retrieve the

evidence, the criminal act of concealment or removal has not taken place.”

James, 586 S.W.3d at 731.

In this case, the bag of marijuana found in the police cruiser was placed

there in the presence of Officer Copeland, who observed Saxton’s movement in

the rear seat to drop the bag; the bag was only partially hidden from view by

the driver’s seat; and was easily recoverable as it only took approximately

eleven seconds for Officer Copeland to find the bag after beginning his search

of the vehicle. Additionally, Officer Copeland testified the cruiser had blockers

installed below the front row seats specifically to prevent items from being

concealed. This constitutes mere abandonment, not concealment, and cannot

predicate a charge of tampering with evidence under KRS9 524.100(1)(a). As

9 Kentucky Revised Statutes.
11
such, the conviction of Saxton for tampering with physical evidence and being

a persistent felony offender based on that conviction is reversed.

As to the strangulation charge, we first note that Saxton’s brief is filled

with alleged inconsistencies in Robinson’s account of the attack. But

inconsistency goes to credibility of a witness, and credibility determinations are

the prerogative of the jury. Ross v. Commonwealth, 531 S.W.3d 471, 476 (Ky.

2017). The jury believed her testimony that Saxton did strangle her by grabbing

her throat with his hand and by placing her in a headlock with his forearm to

her throat. In the first instance she testified she could not breathe or struggled

to breathe, and the second instance she testified she thought she would pass

out.

Strangulation in the first degree occurs when the defendant, without

consent, “intentionally impedes the normal breathing or circulation of the blood

of another person by: (a) Applying pressure on the throat or neck of the other

person. . .” or by blocking the nose or mouth. KRS 508.170(1)(a). “Impede” is

defined as “to interfere with the progress of.” Webster’s New Dictionary of the

English Language 259 (2001). It is more traditionally defined as “to hinder” or

“to obstruct.” Samuel Johnson, A Dictionary of the English Language 374

(Barnes & Noble Books 1994) (1756). Saxton’s testimony that she could not

breathe and that she felt she would pass out as a result of Saxton squeezing

her neck with his hand and forearm easily satisfies the elements required by

law thus, we find no error in the trial court’s refusal to grant a directed verdict

as a matter of law. Moreover, the trial court was required to take Robinson’s

12
account as true. Therefore, under the evidence as a whole, it was not clearly

unreasonable for the jury to find guilt.

C. Physical Evidence under KRE 901(a)
Saxton argues unauthenticated evidence was improperly admitted

against him, specifically a black plastic container and burnt cigar with

marijuana, as well as eight DNA swabs and their test results. Evidentiary

questions are addressed for an abuse of discretion. Ross v. Commonwealth, 455

S.W.3d 899, 912 (Ky. 2015). “The requirement of authentication or

identification as a condition precedent to admissibility is satisfied by evidence

sufficient to support a finding that the matter in question is what its proponent

claims.” KRE10 901(a). The proponent of the evidence must demonstrate the

evidence at trial was the same as that involved during the events in question

and that it has not been materially changed. Ross, 455 S.W.3d at 912. For

drugs and drug paraphernalia—items which are fungible and not readily

identifiable or distinguishable—a stronger foundational showing is required

than for non-fungible or readily identifiable evidence, but a perfect chain of

custody is not required. Id. “Instead, the proponent need only show that ‘the

reasonable probability is that the evidence has not been altered in any material

respect.’” Id. (quoting United States v. Cardenas, 864 F.2d 1528, 1532 (10th

Cir. 1989)). Nonetheless, “[a] complete chain of custody of this evidence tracing

its possession from the time it was obtained from the defendant to its final

10 Kentucky Rules of Evidence.
13
custodian must be established or the samples may not be admitted.” Harrod v.

Commonwealth, 552 S.W.2d 682, 684 (Ky. 1977). “For purposes of

authentication, the condition of fact which must be fulfilled by every offer of

real proof is whether the evidence is what its proponent claims.” Hunt v.

Commonwealth, 304 S.W.3d 15, 39 (Ky. 2009).

i. The Plastic Container and Marijuana Cigar
We agree the Commonwealth’s failure to have Officer Rogers testify that

he did in fact find the black container and marijuana cigar on Saxton’s person

is fatal to establishing a sufficient chain of custody. The Commonwealth has

failed to establish the necessary link between the real evidence offered and

Saxton at the foundation. Officer Copeland’s testimony was only that the

plastic container “may have been” found on Saxton in a search incident to

arrest, and he only testified to that after reading a citation report to refresh his

memory that was completed by Officer Rogers. Since Officer Copeland’s

testimony was qualified—“may have been”—it was in fact the citation report

which ended up being the only definitive “evidence” of how the plastic container

was found. Of course,

For the purpose of refreshing his recollection the party doing the
examining (whether direct or cross) may show to the witness a pre-
trial statement, but may not for that purpose introduce it in
evidence or read it to the jury. The statement cannot be read under
the pretext of refreshing the recollection of the witness.

Payne v. Zapp, 431 S.W.2d 890, 892 (Ky. 1968) (Emphasis added). That is

precisely what the Commonwealth had Officer Copeland do here—read the

citation report to the jury, ostensibly to refresh his memory, but said memory

14
was never refreshed. We must again note the Commonwealth originally

believed the plastic container was recovered by Officer Copeland in the police

cruiser. The testimony elicited that it may have been found in a search incident

to arrest was apparently a last resort, and perhaps explains why the

Commonwealth did not have Officer Rogers testify to whether he recovered the

plastic container and marijuana cigarette. But if true, that only underscores

our conclusion the Commonwealth has failed to sufficiently link the real

evidence to Saxton. The Commonwealth itself apparently does not know who

discovered the plastic container and cigar, when they were discovered, or how.

Because the Commonwealth failed to definitively link the real evidence with

Saxton by failing to have any police officer simply testify to recovering the

evidence from his person, we reverse the conviction for possession of drug

paraphernalia and the $100 fine.

As to the marijuana cigar, the issue is a red herring. Although allegedly

found inside the plastic container, it supported the possession of marijuana

charge. If it had been the only drug allegedly found in Saxton’s possession,

then reversal of the possession conviction would be required. But Saxton fails

to account for the fact that the bag of marijuana he abandoned in the police

cruiser also supports that possession charge as well.

No error in . . . the admission or the exclusion of evidence . . . is
ground for granting a new trial or for setting aside a verdict or for
vacating, modifying or otherwise disturbing a judgment or order
unless it appears to the court that the denial of such relief would
be inconsistent with substantial justice.

15
RCr. 9.24. “A reviewing court should ask ‘whether the error itself had

substantial influence. If so, or if one is left in grave doubt, the conviction

cannot stand.’” Brown v. Commonwealth, 553 S.W.3d 826, 836 (Ky. 2018). We

do not have a “grave doubt” that admitting the cigar into evidence had a

substantial influence on the jury in light of the evidence that Saxton possessed

a bag of marijuana, which he abandoned in the police cruiser. Although we

have reversed his tampering with evidence conviction, that does not mean the

bag of marijuana as an evidentiary matter cannot support a possession charge,

a result similarly reached in Commonwealth v. James, 586 S.W.3d 717, 721-24

(Ky. 2019). The jury instruction—and Saxton has not made any argument

regarding any jury instructions—stated in pertinent part,

You will find the Defendant guilty of Possession of Marijuana
under this instruction if, and only if, you believe from the evidence
beyond a reasonable doubt all of the following:

1. That in this county on or about July 8th, 2020 and
within 12 months before the finding of the Indictment
herein, he had in his possession a quantity of
marijuana;

AND

2. That he knew the substance so possessed by him was
marijuana.

The facts adduced at trial were that a bag of marijuana was recovered in the

police cruiser after Saxton had been detained inside it. Officer Copeland

testified that the bag was not present in the cruiser prior to his detaining

Saxton as he routinely searched his vehicle after a person had been inside it to

search for items or contraband. Moreover, Saxton must have possessed the bag

16
at one point in order for him to abandon it. Finally, Robinson’s testimony that

Saxton had told her he was leaving the house to go get marijuana, all support

the possession conviction.

Saxton has argued that the “green leafy substance” found in the bag was

never chemically tested to prove it was marijuana. But we rejected that

argument in Jones v. Commonwealth, 331 S.W.3d 249, 252 (Ky. 2011), noting

that virtually every court, state and federal, throughout the Union had similarly

rejected chemical testing as an absolute prerequisite for conviction of a drug-

related offense. Id. at 253. Here, Officer Copeland testified to his belief that the

bag contained marijuana. His testimony was sufficient compared to the

previous case where we sustained a conviction for a drug-related offense on the

testimony of a known drug user identifying the substance by eyesight, despite

a State Trooper contrarily testifying that laboratory analysis was necessary to

identify the substance. Miller v. Commonwealth, 512 S.W.2d 941, 943 (Ky.

1974).

ii. The DNA Swabs – Left Forearm and Two Buccal Standards
As to the DNA swabs, Saxton’s hands and arms were swabbed, and

control swabs for Saxton and Robinson each were taken, as well as buccal

swabs for each. We decline to review the swabs of Saxton’s hands. These went

to the rape charge. Since the jury acquitted him on that charge, any error was

harmless. Butler v. Commonwealth, 516 S.W.2d 326, 328 (Ky. 1974). For

similar reasons, we decline to review the swabs for the right arm or control

swabs. The latter were not even tested so it cannot be said they improperly

17
influenced the jury. The right arm, though tested, had no relevance to the

attack since it was consistently maintained by the Commonwealth that

Saxton’s left arm had choked Robinson and was bitten by her. The

Commonwealth concedes in its briefing the right arm swab’s relevance to any

specific charge is unclear. But being irrelevant, we conclude its erroneous

admittance was harmless and did not substantially sway the result. Davis v.

Commonwealth, 620 S.W.3d 16, 31 (Ky. 2021).

As for the three remaining DNA swabs and test reports (the left arm swab

of Saxton and the two buccal swabs), it must first be noted that Saxton

stipulated at trial that his left forearm had an injury and there was blood, that

a swab was taken of the blood, and the swab was sent to the state lab.11 This

stipulation obviates any perceived deficiencies of the Commonwealth either in

not having a person testify when and where he or she collected the swab or as

to the chain of custody from collection to deliverance of the swab to the lab.

Saxton cannot stipulate that the swab was taken and sent to the lab, then

complain the chain of custody is incomplete due to lack of testimony about

how the swab was originally taken and sent to the lab.12 Stone Coal Corp. v.

11 The trial court erroneously told the jury the swab was delivered to the lab on
July 9, 2020. The report states the Western lab received it on August 3, 2020. In any
event, the discrepancy in the date goes to weight and credibility. It does not negate the
substantive agreement reached by the parties pertaining to the existence of an injury
on Saxton’s left arm, that the left arm was bloody, and a swab was taken of that blood
and delivered to the lab.
12 At this point it is also worth noting that officer body cam footage does exist,

as the Commonwealth represented, showing the injury and the swab of Saxton being
taken. It was to prevent this video being played in court that Saxton stipulated to the
collection of the swab.
18
Varney, 336 S.W.2d 41, 42 (Ky. 1960) (finding stipulation that deposition could

be read into record precluded review of alleged error in allowing the deposition

to be read into record).

The problem to be resolved upon review is no one testified to collecting

the two buccal swabs of Saxton and Robinson, and these swabs were not

covered by the stipulation. Although the Commonwealth may have argued the

Saxton buccal swab was taken at the same time as the left forearm swab, the

stipulation read by the court to the jury did not encompass such a fact. The

stipulation clearly pertained only to the left forearm. But absent the two buccal

swabs, which were tested, there is no basis to establish the DNA found on

Saxton’s left forearm belongs to Saxton and Robinson.

Lyle Hall, the DNA analyst for the Kentucky State Police Crime Lab in

Frankfort, testified, “a buccal standard is where they swab the inside of your

cheek to get a DNA profile, so we know it came from that person. It would have

to be a blood standard or buccal standard.” Hall also testified the buccal swab

was a key part of determining the occurrence of a particular DNA profile in the

general population as it serves to rule out any possibility of extraneous DNA in

any given sample. In other words, Hall analyzed the left forearm sample and

concluded two people had contributed to the DNA mixture and comparing it to

the two buccal standards was able to determine that Saxton and Robinson

were those two contributors. He then concluded that, based on relevant United

States populations, he would expect to see the same DNA profile once in 16

sextillion tests.

19
 We have previously cited our harmless error rule in RCr 9.24, and,

reviewing a non-constitutional claim, we will deem an error in the admittance

of evidence harmless “if we can say with fair assurance that the judgment was

not substantially swayed by the error.” Brown v. Commonwealth, 313 S.W.3d

577, 595 (Ky. 2010). “Our inquiry is not simply ‘whether there was enough

evidence to support the result, apart from the phase affected by 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. (quoting Kotteakos

v. United States, 328 U.S. 750, 765 (1946).

The error below occurred when the trial court admitted the buccal

standards without any foundational testimony from any person that he or she

collected the buccal standards from Saxton and Robinson. Although we do not

require a perfect chain of custody, that rule does not apply when the

foundational link in the chain is lacking. Here, there was no testimony the DNA

swabs meant to establish that the DNA found on Saxton’s left forearm belonged

to him and Robinson were in fact taken from Saxton and Robinson prior to

being tested. This is a lack of foundation, pure and simple. Nor can we say this

error was harmless. Robinson testified to Saxton choking her and biting him to

escape. The improper DNA evidence substantiated her testimony. We have no

way of knowing how much the jury relied upon this improper evidence nor

whether without it they would have believed Robinson at all.

The Commonwealth has pointed to police body camera footage showing

Robinson with a hoarse voice as additional physical evidence confirming the

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attack, but that is unpersuasive. Hoarseness of voice can be explained by the

two having an argument beforehand, which would be consistent with

Robinson’s own testimony. Thus, we have serious concerns the erroneous

admission of the buccal swabs substantially influenced the jury in determining

guilt on the strangulation charge. Consequently, we must reverse the

strangulation conviction as well as the PFO II conviction concomitant with it.

D. No Error in Failing to Declare Mistrial
Finally, there is Saxton’s argument that the trial court erred for failing to

grant a mistrial due to the Commonwealth’s investigator confronting defense

counsel prior to voir dire in the presence of the venire. The investigator

presumptuously took it upon himself to prevent counsel from walking past the

first row of jurors and informed her she and Saxton had to get to their table by

another route. From Saxton’s arguments in chambers though, it seems he and

counsel walked to the table by their chosen route despite the interference. The

Commonwealth argued to the trial court that the confrontation was minor and

being dramatized by the defense. The Commonwealth told the court there were

no raised voices, and that they would not have even known the incident

occurred but for it happening in their line of sight. Saxton argues this

confrontation created an inherently prejudicial environment, calling for a

mistrial citing Holbrook v. Flynn, 475 U.S. 560 (1986), but notably defense

counsel never sought to voir dire the jurors on this incident.

Recently, in Deal v. Commonwealth, 607 S.W.3d 652, 663-65 (Ky. 2020),

we undertook to explain the Holbrook standard. But neither Deal, nor the

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Supreme Court of the United States cases it relied upon are apposite here. Deal

addressed the issue of a video being shown of the defendant in custody and

wearing jail attire, an inherently prejudicial circumstance. Id. at 667. And all

the cases it relied upon for this holding dealt with routine, repetitive,

customary, and prolonged practices as opposed to single incidents beyond the

direction of the trial court. Holbrook, supra, at 570-71 (four additional

uniformed officers in first row during trial not inherently prejudicial); Deck v.

Missouri, 544 U.S. 622, 626 (2005) (routine use of visible shackles during guilt

phase unconstitutional); Estelle v. Williams, 425 U.S. 501, 512-13 (1976) (state

cannot compel a defendant over his objection to wear prison attire at trial). In

contrast, the complained of event below was a Commonwealth’s investigator

interrupting the progress of Saxton and his counsel to their table for only a few

moments. The Commonwealth’s cases in support of its argument are not

helpful in analyzing this issue either, as they deal with spectators wearing t-

shirts displaying sympathetic messages for the victim. Hammond v.

Commonwealth, 504 S.W.3d 44 (Ky. 2016); Allen v. Commonwealth, 286 S.W.3d

221 (Ky. 2009).

The facts presented by this case are more analogous to an outburst and

ought to be addressed under the well-established standards regarding

outbursts. “A mistrial is an extreme remedy and should be reserved for the rare

occasions in which is it manifestly necessary to protect fundamental fairness

and the rights of the parties involved.” Commonwealth v. Padgett, 563 S.W.3d

639, 651 (Ky. 2018). Moreover, we have found in the context of emotional

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outbursts of a victim’s family members, that an admonition is “more than

sufficient to cure any possible prejudice” resulting from such outbursts.

Coulthard v. Commonwealth, 230 S.W.3d 572, 577 (Ky. 2007). In Boyd v.

Commonwealth, a juror committed an outburst during voir dire by suggesting

hanging should be brought back, which elicited the laughter of several other

jurors in the court room. 439 S.W.3d 126, 130 (Ky. 2014). We upheld the trial

court’s refusal to dismiss the venire, reasoning the trial court had properly

admonished the venire and there was no demonstration of actual prejudice. Id.

In Carter v. Commonwealth, the previous Court of Appeals upheld a trial court’s

refusal to grant a mistrial based upon the conduct of a sheriff and his deputy,

who were seated behind the defendant whilst he was testifying and laughing

and sneering at him. 128 S.W.2d 214, 217-18 (Ky. 1939). It concluded “[t]here

is no showing that the attention of the jury was attracted to them or that the

conduct complained of was of a nature calculated to in any wise prejudice or

influence the jury against appellant.” Id. at 218. In other words, no prejudice

was intended by the officers nor demonstrated by the defendant. It is

noteworthy, however, that the defendant related the trial court had

admonished the two officers and ordered them to sit in another area. Id.

“[W]here an admonishment is sufficient to cure an error and the

defendant fails to ask for the admonishment, we will not review the error.”

Coulthard, supra, at 578 (quoting Lanham v. Commonwealth, 171 S.W.3d 14,

28-29 (Ky. 2005)). The cases above demonstrate that admonishment is an

adequate remedy when dealing with an outburst. Here, the Commonwealth

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conceded an admonishment might be appropriate, but Saxton did not agree

and instead sought a mistrial. Moreover, he has not shown actual prejudice

despite having the opportunity to do so during voir dire. Like in Carter, no

showing has been made that the Commonwealth investigator’s action was

meant to prejudice the venire or that the venire even noticed the incident.

Therefore, no basis exists to hold the venire was prejudiced to such a degree as

to make the subsequent trial inherently prejudicial. The court did not err in

refusing to declare a mistrial.

III. CONCLUSION
For the aforementioned reasons, we reverse the tampering with evidence

conviction, the strangulation conviction, the PFO II convictions based upon

them, and the possession of drug paraphernalia conviction. We affirm the

possession of marijuana conviction. We remand to the trial court for further

proceedings consistent with this judgment.

All sitting. Minton, C.J.; Hughes, and Keller, JJ., concur. VanMeter, J.,

concurs in part and dissents in part by separate opinion in which Nickell and

Lambert, JJ., join.

VANMETER, J., CONCURRING IN PART AND DISSENTING IN PART:

While I concur in much of the majority’s well-considered opinion, I respectfully

dissent from the reversal of the strangulation conviction and its resulting PFO

conviction. Under RCr 9.24, we disregard errors in the admission or exclusion

of evidence unless denial of relief is inconsistent with substantial justice.

While the Commonwealth’s chain of custody on the buccal swabs may have

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been insufficient, my view is that Robinson’s testimony, including her biting

Saxton’s left arm, together with the admitted bloody injury to his arm were

sufficient corroboration of the facts for which Saxton was convicted.

Nickell and Lambert, JJ., join.

COUNSEL FOR APPELLANT:

Erin Hoffman Young
Sarah D. Dailey
Assistant Public Advocate

COUNSEL FOR APPELLEE:

Daniel Cameron
Attorney General of Kentucky

Jenny Lynn Sanders
Assistant Attorney General

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