RENDERED: APRIL 27, 2023
TO BE PUBLISHED
Supreme Court of Kentucky
2021-SC-0579-MR
ANSHANIQUE M. LEAVELL APPELLANT
ON APPEAL FROM CHRISTIAN CIRCUIT COURT
V. HONORABLE JOHN L. ATKINS, JUDGE
NO. 19-CR-00522
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE KELLER
AFFIRMING
A Christian County jury convicted Anshanique M. Leavell of one count
each of murder, receiving stolen property—firearm, and tampering with
physical evidence. Leavell received a total sentence of twenty-eight years in
prison. This appeal followed as a matter of right. See KY. CONST. § 110(2)(b).
Having reviewed the record and the arguments of the parties, we affirm the
Christian Circuit Court.
I. BACKGROUND
Late on the night of June 6, 2019, Rajiana Tandy drove Leavell to meet
Amareya Freeman so that Leavell could purchase marijuana from Freeman.
When Leavell and Tandy arrived at the apartment complex where Freeman was
located, Leavell contacted Freeman who then came out to the car. Freeman
walked away from the car and then came back. Leavell and Freeman spoke
through Leavell’s rolled down passenger window. Leavell never left the car. At
some point, Tandy, while looking in her rearview mirror, saw Freeman run past
her car. She then heard a gunshot. When Tandy heard the gunshot, Leavell
was partially in the car and partially hanging out of the passenger side window.
Tandy and Leavell then left the apartment complex. Tandy never saw a gun but
later that night found out via social media that Freeman had been shot. Tandy
sent a screenshot of the social media post to Leavell but could not remember
what Leavell’s response had been. After seeing the post, Tandy went to the
police station with her mother to provide a statement.
While investigating the scene, police searched Freeman’s apartment. In
that apartment, police found a Glock handgun case that did not contain a gun.
They also found a receipt for the purchase of a Glock 27 .40 caliber handgun
and a box of .40 caliber ammunition. The purchaser listed on the receipt was
Freeman. The gun had been seized during a police raid of the apartment the
previous January. A box of .40 caliber ammunition, however, was found in the
apartment on the night of the shooting, but nine rounds were missing. Police
also found two bags of marijuana—one containing twenty-five grams and the
other containing two grams.
Police also conducted a cursory search of the apartment next door to
Freeman’s, where Dedrick Brodie, Brodie’s girlfriend, and Brodie’s son lived.
Brodie and Freeman had been hanging out together a short time before the
shooting, and police were looking for Freeman’s phone. Police did not find the
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phone and did not look for any other specific item in Brodie’s apartment,
including a gun.
Approximately one to one and a half hours after the shooting, police
conducted a traffic stop on a vehicle in which Leavell was a passenger. Upon
smelling marijuana, police searched the vehicle. Police found a handgun in the
vehicle. The gun was wrapped in a t-shirt and in a pink bag in the center
console of the vehicle. The gun had been reported stolen on June 6, 2019, from
Livingston County, Kentucky. Leavell was then taken into custody and
interviewed.
During her police interview, Leavell denied any involvement in Freeman’s
death for approximately the first thirty minutes of the interview. Police
detectives eventually told Leavell that guns have a “signature” and that the
“signature” of the gun found in the car was found at the scene of Freeman’s
shooting. At that point, Leavell admitted that the gun was hers and that she
fired it at Freeman. Leavell explained that she had met with Freeman to
purchase marijuana. She stated that Freeman was acting “strange” and trying
to get her to come into his apartment. She also stated that Freeman grabbed at
his waistband, like he was reaching for something, but that it was dark
outside. Although Leavell said that she acted in self-defense, she also explained
that Freeman took her $50, and asked rhetorically, “What was I supposed to
do?”
Leavell was indicted and tried before a jury on the charges of murder,
receiving stolen property—firearm, and tampering with physical evidence. At
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trial, Leavell asserted that she acted in self-defense. Leavell relied heavily on
the medical examiner’s testimony to support her claim of self-defense. The
medical examiner testified that the bullet entered the upper middle of
Freeman’s chest, slightly to the right of the breastbone. The bullet hit a rib and
exited through Freeman’s upper left back. The medical examiner also testified
that Freeman had what appeared to be gunshot graze wounds on the back of
his right foreman, near the wrist. Based on the wounds, the medical examiner
testified that Freeman was most likely predominately facing the shooter with
his right arm stretched out straight in front of him with his palm facing down.
Leavell argued that Freeman could have been holding a gun in his right hand
and pointing it at her at the time he was shot.
Leavell further asserted a theory that Brodie, after finding Freeman shot,
took Freeman’s gun and the $50 Leavell had given Freeman, prior to the police
arrival on scene. The jury, however, found Leavell guilty of all charges. This
appeal followed.
II. ANALYSIS
Leavell alleges several errors by the trial court and urges this Court to
reverse her conviction. First, she alleges that the trial court erred in admitting
testimony that Leavell did not act consistently with someone who truly acted in
self-defense in violation of Ordway v. Commonwealth, 391 S.W.3d 762 (Ky.
2013). Second, she alleges that the trial court erred in denying her motions for
a directed verdict on the charges of murder and tampering with physical
evidence. Third, she alleges the trial court erred in admitting evidence that
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Leavell was potentially affiliated with a gang. Fourth, she alleges the
Commonwealth’s Attorney engaged in prosecutorial misconduct. Finally, she
urges this Court to reverse her convictions based on cumulative error. We
address each of Leavell’s arguments in turn.
A. The trial court did not err in admitting testimony that Leavell did not
act consistently with someone who acted in self-defense.
Leavell first argues that the trial court erred in admitting testimony from
Hopkinsville Police Detective Jason Sears. In this testimony, Detective Sears
opined that generally when a person has acted in self-defense, he or she
immediately discloses to police that his or her actions were taken in self-
defense. In stating this, Detective Sears implied that Leavell did not act
consistently with someone who truly acted in self-defense. Leavell asserts that
this testimony violated our holding in Ordway v. Commonwealth, 391 S.W.3d
762.
In Ordway, the defendant was convicted of capital murder related to the
fatal shooting of two of his acquaintances. Id. at 771–72. Ordway claimed at
trial that he had acted in self-defense. Id. at 771. Responding to questioning
from the Commonwealth, an investigating detective testified that Ordway “did
not act like those who had lawfully protected themselves but, had instead acted
like those who were fabricating a self-protection defense.” Id. at 775. We held
that “a party may not introduce evidence of the habit of a class of individuals
either to prove that another member of the class acted the same way under
similar circumstances or to prove that the person was a member of that class
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because he acted the same way under similar circumstances.” Id. at 776
(citation omitted).
We explained that in Ordway, “[t]he opinion of an experienced and
respected police detective that [Ordway]’s conduct did not match the
stereotypical conduct of an innocent person acting in self-defense
authoritatively portrayed [Ordway]’s defense as a fabrication.” Id. at 777. We
further explained that the detective’s testimony “in effect, urged the jury to
depend upon his apparent expertise as a police officer and his perception and
opinion about matters outside the realm of common knowledge.” Id. at 776–77.
Finally, we held that it was improper for a police detective “to authoritatively
suggest how innocent persons behave after they lawfully engage in an act of
self-defense, and to then, with some measure of certainty, exclude Appellant
from that class of persons based upon his conduct following the shooting.” Id.
at 775–76.
The context of Detective Sears’s testimony in this case, however, is
distinguishable from the context of the testimony elicited in Ordway. In this
case, the Commonwealth first called Detective Sears to testify during its case-
in-chief. Leavell then recalled Detective Sears during her case-in-chief. During
re-re-direct of Detective Sears, the following exchange occurred between
defense counsel and the detective:
Defense Counsel (Defense): Detective Sears, you said you’ve been
doing this for, been an officer for, twenty plus years? Is that
correct?
Detective Sears (Detective): Yes, yes sir.
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Defense: Ok. And you’ve done so many interviews that you can’t
remember how many, correct?
Detective: I’ve done several. I’ve done a bunch.
Defense: Ok. Is it common for people when they start interviewing
you [sic] to kind of downplay what happened, or put it in the best
light?
Detective: Is it common for people, or me?
Defense: Is it common for people you interview?
Detective: People, uh, people want to minimize their—they do a lot
of times want to minimize their action that’s involved in the, the
crime, or [unintelligible] they got times they wanna give a, portray
themselves in a different mannerism, I should say.
Defense: Ok. That doesn’t make what they say later untrue, does
it?
Detective: Well, they leave out critical parts of it though, and just
sometimes they leave out the, um, I don’t know, I guess the meat
‘n taters of the real story.
Defense: Ok. So, when she said, “I know I acted in self-defense,”
what did she leave out?
Detective: Well, that’s down the, along the interview along the
ways, I mean, we’ve been into for a while, about thirty minutes,
because I had to go over the signature of the gun and everything
before she said that. No, that’s what she stated.
Defense: Ok. There’s nothing left out of that statement; that’s a
pretty clear declaration, “I acted in self-defense.”
Detective: It’s a—
Defense: That’s the meat and potatoes, correct?
Detective: It’s a declaration, but does that mean that it’s something
that’s not minimized, too?
Defense: Nothing further.
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Immediately after, the Commonwealth began its re-re-cross as follows:
Commonwealth’s Attorney (Commonwealth): When people are
interviewed routinely, that self-defense is their defense, they start
off with that?
Defense: Objection, speculation.
Trial court: Overruled.
Commonwealth: Is that not true, from your experience?
Detective: Most times, when somebody comes in, that they had to
be forced into a situation, that’s their first, that’s the first thing
they’ll bring up. Now I’m not saying—
Commonwealth: That’s right, they get it out quick?
Detective: They get it out quick.
Commonwealth: They don’t wait?
Detective: Yes, they ain’t going to hold on to it until you have to pry
it—bring it out.
While the testimony elicited by the Commonwealth from Detective Sears would
ordinarily violate Ordway, because Leavell first elicited testimony about the
way a typical suspect behaves, the trial court did not err in allowing the
Commonwealth to elicit similar testimony to rebut the evidence Leavell elicited.
Ordway’s directive is equally applicable to any party. Id. at 776 (“[A]
party may not introduce evidence of the habit of a class of individuals either to
prove that another member of the class acted the same way under similar
circumstances or to prove that the person was a member of that class because
he acted the same way under similar circumstances.” (emphasis added)). As we
noted, “The determination of an individual’s guilt or innocence must be based
upon the evidence of the particular act in question; it cannot be extrapolated
8
from an opinion, that his behavior after the event comports with some
standardized perception of how the ‘typical’ suspect behaves.” Id. This rule
applies with equal force to both a criminal defendant and the Commonwealth.
When the defendant attempts to extrapolate from a witness’s opinion about
suspects in general, it clears a path for the Commonwealth to fully rebut that
evidence. See Blair v. Commonwealth, 144 S.W.3d 801, 806 (Ky. 2004)
(‘“Opening the door’ . . . occurs when one party introduces an inadmissible fact
that opens the door for the opponent to offer similar facts whose only claim to
admission is that they negative, explain, or counterbalance the prior
inadmissible fact.”) (citations omitted). Here, the Commonwealth’s elicited
testimony did not exist in a vacuum. Instead, it was permissibly responsive to
similar testimony immediately preceding it. Based upon the foregoing, the trial
court did not err in admitting the testimony of Detective Sears.
Finally, even if the trial court erred in admitting Detective Sears’s
testimony, this error was harmless. An error is harmless if a “reviewing court
can say with fair assurance that the judgment was not substantially swayed by
the error.” Winstead v. Commonwealth, 283 S.W.3d 678, 689 (Ky. 2009)
(citation omitted). In this case, evidence admitted at trial showed that Leavell
was evasive for the first thirty minutes of her interview. It further showed that
when telling Detective Sears what happened on the night of the shooting,
Leavell said, “He took my $50. What was I supposed to do?” Leavell did not
definitively state that she saw Freeman with a gun, and no gun was found on
the scene. The jury also heard that Leavell was potentially affiliated with a gang
9
that had perpetrated other shootings in the area. Finally, Leavell only asserted
self-defense after being told that the police were able to match the gun found in
the car with her to the shooting. Given this evidence, we can say “with fair
assurance that the judgment was not substantially swayed by the error.” Id.
B. The trial court did not err in denying Leavell’s motions for a directed
verdict.
Leavell next argues that the trial court erred in denying her motions for a
directed verdict on the charges of murder and tampering with physical
evidence. Our directed verdict standard was described in Commonwealth v.
Benham:
On 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 purposes 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.
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.
816 S.W.2d 186, 187 (Ky. 1991) (citation omitted). “So long as the
Commonwealth produces more than a mere scintilla of evidence to support the
charges, a defendant’s motion for directed verdict should be denied.” Taylor v.
Commonwealth, 617 S.W.3d 321, 324 (Ky. 2020). With these standards in
mind, we address each of Leavell’s arguments in turn.
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1. Murder
Leavell argues that the trial court erred in denying her motion for a
directed verdict on the charge of murder. Under Kentucky Revised Statutes
(KRS) 507.020(1) and 503.050, a person is guilty of murder if (1) he or she
causes the death of another person, (2) “with intent to cause the death of
another person” or while “wantonly engag[ing] in conduct which creates a grave
risk of death to another person,” and (3) while not privileged to act in self-
protection. Regarding self-protection, under KRS 503.050,
(1) The use of physical force by a defendant upon another
person is justifiable when the defendant believes that such
force is necessary to protect himself against the use or
imminent use of unlawful physical force by the other person.
(2) The use of deadly physical force by a defendant upon another
person is justifiable under subsection (1) only when the defendant
believes that such force is necessary to protect himself against
death, serious physical injury, kidnapping, sexual intercourse
compelled by force or threat, felony involving the use of force, or
under those circumstances permitted pursuant to KRS 503.055.
Leavell argues that the Commonwealth presented insufficient proof that
she was not privileged to act in self-protection. However, this Court has
previously explained, “Rarely is a defendant relying upon self-defense entitled
to a directed verdict. Only in the unusual case in which the evidence
conclusively establishes justification and all of the elements of self-defense are
present is it proper to direct a verdict of not guilty.” West v. Commonwealth,
780 S.W.2d 600, 601 (Ky. 1989) (emphasis added). In this case, we cannot say
that the evidence “conclusively establishe[d]” that Leavell acted in self-defense.
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The evidence admitted at trial that supported a self-defense claim came
mostly from the medical examiner as described above and Hopkinsville Police
Department detectives who either interviewed Leavell after the shooting or who
had watched a video recording of this interview. Through the testimony of those
detectives, the jury heard Leavell’s statements that Freeman reached towards
his waistband and possibly pulled something out. However, nothing was found
at the scene to indicate that Freeman actually pulled anything out of his
waistband, let alone that he pulled out a gun. Further, Tandy testified that she
did not see or hear anything that caused her to believe that Leavell had a
reason to shoot Freeman.
This Court has previously
held that a defendant’s statement that he acted in self-defense or
his description of events which show such to be the case need not
be accepted at face value where the jury may infer from his
incredibility or the improbability of the circumstances that one or
more of the elements necessary to qualify for self-defense is
missing.
Id. (citing Taul v. Commonwealth, 249 S.W.2d 45 (Ky. 1952)). We have also
“held that if the evidence relied upon to establish self-defense is contradicted or
if there is other evidence from which the jury could reasonably conclude that
some element of self-defense is absent, a directed verdict should not be given.”
Id. (citing Townsend v. Commonwealth, 474 S.W.2d 352 (Ky. 1971)).
Given the conflicting evidence presented to the jury in this case, the trial
court did not err in denying Leavell’s motion for a directed verdict on the
charge of murder.
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2. Tampering with Physical Evidence
Leavell next argues that the trial court erred in denying her motion for a
directed verdict on the charge of tampering with physical evidence. Under KRS
524.100(1)(a), as relevant to Leavell’s case,
A person is guilty of tampering with physical evidence when,
believing that an official proceeding is pending or may be
instituted, he . . . conceals . . . physical evidence which he believes
is about to be produced or used in the official proceeding with
intent to impair its verity or availability in the official proceeding.
Leavell argues that the Commonwealth failed to prove both that she concealed
the handgun and also that she intended to impair the gun’s availability in an
official proceeding.
Regarding concealment of the gun, Leavell relies in part on KRS
527.020(8), a subsection of the statute which defines the crime of carrying a
concealed deadly weapon. Under that subsection,
A loaded or unloaded firearm or other deadly weapon shall not be
deemed concealed on or about the person if it is located in any
enclosed container, compartment, or storage space installed as
original equipment in a motor vehicle by its manufacturer,
including but not limited to a glove compartment [or] center
console . . . .
(emphasis added). We need not determine the relevance of KRS 527.020 to our
tampering with physical evidence statute, however, because the handgun was
not found merely lying in the center console. Instead, it was found wrapped in
a t-shirt inside of a pink bag in the center console. The additional actions
required to wrap the gun in a t-shirt and place it in a bag before placing it in
the center console of the car make KRS 527.020 inapplicable in this case.
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Leavell further argues that the detective who conducted the traffic stop
during which the gun was found did not testify that Leavell made any furtive
movements during the stop or that she wrapped up the gun and placed it in
the bag during the stop. She also argues that the center console is not an
“unconventional” location such that the gun was concealed there.
Finally, Leavell argues that the Commonwealth presented no evidence
that she intended to impair the gun’s availability in an official proceeding. She
asserts that there is no indication that she knew Tandy would report the events
of that night to the police. She argues that because there was no evidence that
she knew there was a pending official proceeding, there was no evidence that
she intended to impair the gun’s availability in that proceeding.
“It is well-settled that a jury may make reasonable inferences from the
evidence.” Blades v. Commonwealth, 957 S.W.2d 246, 250 (Ky. 1997) (citations
omitted). In this case, the evidence was undisputed that the gun used in the
shooting was found wrapped in a t-shirt, in a pink bag, in the center console of
a car. Given the multiple layers the police were required to unwrap in order to
find the gun, the jury could have reasonably inferred both that the gun was
concealed, and that Leavell did so with the intent to impair its availability in an
official proceeding. Accordingly, the trial court did not err in denying her
motion for a directed verdict on the charge of tampering with physical evidence.
C. The trial court did not err in admitting testimony that Leavell was
potentially affiliated with a gang.
Leavell next argues that the trial court erred in admitting testimony that
she was potentially affiliated with a gang because it was improper character
14
evidence. Specifically, she argues that the trial court erroneously admitted
testimony that her Facebook username was associated with a local gang
suspected of shootings in Christian County, that she was related to someone in
the gang, and that she had posted a music video on Facebook in which she
rapped about robbers and killers. Regarding the music video, Leavell failed to
object at the trial court, leaving this allegation of error unpreserved. Because
Leavell did not request palpable error review of the admission of this specific
piece of evidence, we will not review it standing alone. See 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.”) (citation omitted).
Instead, we will only consider the admission of the rap video as an additional
piece of evidence suggesting Leavell was associated with a local gang.
This Court reviews a trial court’s decision on the admission of evidence
for an abuse of discretion. Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky.
2007); Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). “The test for
abuse of discretion is whether the trial judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” Goodyear Tire
& Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000) (citing English, 993
S.W.2d at 945).
Leavell argues that the gang affiliation testimony violated Kentucky Rules
of Evidence (KRE) 403 and 404(b). Under KRE 403, relevant evidence “may be
15
excluded if its probative value is substantially outweighed by the danger of
undue prejudice . . .” Under KRE 404(b), “[e]vidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to show
action in conformity therewith” unless it falls within certain exceptions.
Additionally, under KRE 404(a), “[e]vidence of a person’s character or a trait of
character is not admissible for the purpose of proving action in conformity
therewith on a particular occasion.” One exception to that general rule,
however, allows for admission of “[e]vidence of a pertinent trait of character or
of general moral character offered by an accused, or by the prosecution to
rebut the same.” KRE 404(a)(1).
In this case, Leavell—not the Commonwealth—first injected the issue of
gang affiliation into the trial. Before the Commonwealth ever introduced any
evidence of Leavell’s potential gang affiliation, Leavell herself asked Tandy if
Leavell had any gang relations. Tandy responded in the negative. Leavell then
further elicited from Tandy that if Leavell was in fact in a gang, Tandy would
have known that information. Thus, by attempting to show her “good”
character, Leavell opened the door and “cannot complain if the Commonwealth
walked through that door and introduced character evidence not to [her]
liking.” Stansbury v. Commonwealth, 454 S.W.3d 293, 301 (Ky. 2015).
Accordingly, the trial court did not abuse its discretion in admitting the
evidence of Leavell’s potential gang affiliation.
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D. The Commonwealth’s Attorney did not commit prosecutorial
misconduct.
Leavell next argues that the Commonwealth’s Attorney committed
prosecutorial misconduct. Leavell asserts he did so in four ways. First, she
alleges that the Commonwealth’s Attorney committed prosecutorial misconduct
when he elicited testimony purportedly in violation of Ordway. See discussion
supra Subsection A. Second, she alleges the Commonwealth’s Attorney
committed prosecutorial misconduct when he elicited testimony about her
potential gang affiliation. See discussion supra Subsection C. Third, Leavell
asserts that the Commonwealth’s Attorney committed prosecutorial
misconduct when he posed hypotheticals to both the medical examiner and a
detective about the bullet trajectory, improperly implied the medical examiner
was not an expert on bullet trajectory, and used a detective that he never
qualified as an expert to discredit the medical examiner. Leavell asserts that
these actions were taken in order to mislead the jury and prejudice her.
Finally, Leavell argues that the Commonwealth’s Attorney committed
prosecutorial misconduct when he elicited testimony from a detective that
Freeman did not have a reputation in the community for violence and did not
have a reputation for carrying a gun. Leavell asserts that because that detective
did not even know if Freeman had ever purchased a gun, the prosecutor sought
to mislead and create a false impression for the jury by eliciting this testimony.
“Prosecutorial misconduct is ‘a prosecutor’s improper or illegal act
involving an attempt to persuade the jury to wrongly convict a defendant or
assess an unjustified punishment.’” Commonwealth v. McGorman, 489 S.W.3d
17
731, 741–42 (Ky. 2016) (quoting Noakes v. Commonwealth, 354 S.W.3d 116,
121 (Ky. 2011)). One way in which the misconduct can occur is through
improper questioning. Duncan v. Commonwealth, 322 S.W.3d 81, 87 (Ky. 2010)
(citation omitted). Any allegation of misconduct must be viewed in the context
of the overall fairness of the trial. McGorman, 489 S.W.3d at 742 (citing St. Clair
v. Commonwealth, 451 S.W.3d 597, 640 (Ky. 2014)). To justify reversal, the
Commonwealth’s misconduct must be “so serious as to render the entire trial
fundamentally unfair.” Soto v. Commonwealth, 139 S.W.3d 827, 873 (Ky. 2004)
(quoting Stopher v. Commonwealth, 57 S.W.3d 787, 805 (Ky. 2001)).
“If the misconduct is objected to, we will reverse on that ground if proof
of the defendant’s guilt was not such as to render the misconduct harmless,
and if the trial court failed to cure the misconduct with a sufficient admonition
to the jury.” Duncan, 322 S.W.3d at 87. However, if no objection is made, the
Court “will reverse only where the misconduct was flagrant and was such as to
render the trial fundamentally unfair.” Id. (citations omitted).
Leavell’s first two claims of prosecutorial misconduct—the purported
Ordway testimony and the gang affiliation testimony—are repetitive of other
issues already raised in this appeal. Having determined that the trial court did
not err in admitting the testimony Leavell now complains of, we cannot hold
that the Commonwealth’s Attorney committed prosecutorial misconduct in
eliciting said evidence. Further, as we have previously held, “Despite a
defendant’s characterization, ‘[i]ssues involving the admission of evidence or
18
testimony, when ruled upon by the trial court, do not constitute prosecutorial
misconduct.’” Noakes, 354 S.W.3d at 122 (quoting Stopher, 57 S.W.3d at 806).
Leavell’s third claim of prosecutorial misconduct relates to questions the
Commonwealth’s Attorney asked to the medical examiner and to a detective
regarding the bullet trajectory and the positioning of Freeman’s body when he
was shot. Leavell asserts that when the Commonwealth’s Attorney posed
hypotheticals to both the medical examiner and a detective about the bullet
trajectory, implied the medical examiner was not an expert on bullet trajectory,
and used a detective that he never qualified as an expert to discredit the
medical examiner, he did so in order to mislead the jury. Most of this
questioning was not objected to, and the trial court overruled the single
objection Leavell made to the Commonwealth’s questioning of the detective.
Regarding the single objection, we hold there was not prosecutorial
misconduct, as it was merely an issue “involving the admission of evidence or
testimony” and was “ruled upon by the trial court.” Id. Regarding the rest of the
questioning that comprises this claim of prosecutorial misconduct, we hold
that the questioning and presentation of evidence did not cross the line from
zealous advocacy to misconduct.
Leavell’s final claim of prosecutorial misconduct relates to testimony
from a detective that Freeman did not have a reputation in the community for
violence and did not have a reputation for carrying a gun. Leavell asserts that
because the detective did not even know if Freeman had ever purchased a gun,
the prosecutor sought to mislead and create a false impression for the jury by
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eliciting this testimony. Leavell could have objected on the basis that the officer
had insufficient knowledge to provide such an opinion on Freeman’s reputation
or could have cross-examined the detective about the basis of his opinion.
However, Leavell did neither. Further, there was nothing improper about this
question that would cause it to cross the line from zealous advocacy to
misconduct.
Accordingly, all of Leavell’s claims of prosecutorial misconduct fail.
E. There was no cumulative error.
Finally, Leavell argues that her conviction should be reversed due to
cumulative error. Under the cumulative error doctrine, “multiple errors,
although harmless individually, may be deemed reversible if their cumulative
effect is to render the trial fundamentally unfair.” Brown v. Commonwealth, 313
S.W.3d 577, 631 (Ky. 2010). Because we have found no errors, there cannot be
cumulative error. To the extent the admission of evidence that Leavell did not
act consistently with someone who truly acted in self-defense may have been
error, we found such potential error to be harmless. That potential error alone
did not render Leavell’s trial fundamentally unfair, and there are no other
errors to accumulate. “Where, as in this case, however, none of the errors
individually raised any real question of prejudice, we have declined to hold that
the absence of prejudice plus the absence of prejudice somehow adds up to
prejudice.” Id. (citing Furnish v. Commonwealth, 95 S.W.3d 34 (Ky. 2002)).
Accordingly, we hold there was no cumulative error in this case.
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III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the Christian
Circuit Court.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Robert Chung-Hua Yang
Department of Public Advocacy
COUNSEL FOR APPELLEE:
Daniel J. Cameron
Attorney General of Kentucky
Harrison Gray Kilgore
Assistant Attorney General
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