Andrew Dean Coulthard v. Commonwealth of Kentucky

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
 RENDERED : AUGUST 23, 2007
TO BE PUBLISHED

,oupremr Courf of
2005-SC-000804-MR

ANDREW DEAN COULTHARD APPELLANT

ON APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. CLARK, JUDGE
V. NO. 04-CR-000647

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE SCOTT

AFFIRMING

Appellant, Andrew Dean Coulthard, was convicted by a Fayette County

jury of manslaughter in the first degree and tampering with physical evidence .

For these crimes, Appellant was sentenced to a total of twenty-five years in

prison . Appellant now appeals to this Court as a matter of right. Ky. Const. §

110(2)(b) . For the reasons set forth herein, we affirm Appellant's convictions .

On November 13, 2003, Appellant fatally shot eighteen-year-old Brian

Brown in the neck. At trial, Appellant claimed he went looking for Brown that

night because he believed that Brown burglarized his home earlier in the month .

Eventually, Appellant found Brown in his vehicle at a stop sign in the trailer park

where Brown lived with his grandmother . Appellant testified that he drove his

vehicle in front of Brown's, forcing Brown to stop . Appellant then exited his
 vehicle and confronted Brown about burglarizing his home . During their brief

conversation, Appellant's passenger, Robbie Burns, moved from the passenger

seat and maneuvered Appellant's vehicle so that it was facing Brown's vehicle.

When Appellant heard a truck coming towards their vehicles, Appellant testified

that he quickly attempted to punch Brown through the half-open window of

Brown's car . Upon walking back toward his car, Appellant claimed that Brown

suddenly started driving towards him in an attempt to run him over. In fact,

Appellant stated that Brown actually collided with his vehicle . In reaction and out

of fear for his life, Appellant testified that he pulled a gun from his pants and shot

towards Brown's vehicle . Appellant admitted fleeing the scene and disposing

evidence related to the crime .

At trial, the Commonwealth presented a slightly different version of events.

The Commonwealth's evidence tended to show that Appellant did indeed

confront and attempt to assault Brown by forcing his way into Brown's vehicle.

However, when Brown drove away from Appellant in an attempt to flee, Appellant

opened fired and instantly incapacitated Brown with a bullet to the neck. Once

incapacitated by the bullet, Brown's vehicle sideswiped two neighborhood

vehicles before crashing into and stopping against a third vehicle . It was the

Commonwealth's position that the evidence did not support a suggestion that

Brown may have collided with Appellant's vehicle prior to sideswiping and

crashing into the three other vehicles located at the scene.

Appellant was subsequently apprehended, arrested, and charged with the

murder of Brown . On September 1, 2005, a Fayette County jury found Appellant

guilty of manslaughter in the first degree and tampering with physical evidence .
 A final judgment was entered against Appellant on October 5, 2005. Appellant

now appeals directly to this Court as a matter of right and we affirm .

I. There was no error regarding victim "propaganda," emotional reactions

from spectators, or evidence regarding victim impact / background .

In his first assignment of error, Appellant attempts to lump several alleged

errors which he claims, in accumulation, amount to reversible error. These

alleged errors include the use of "victim propaganda," the refusal of the trial court

to grant a mistrial after the jury witnessed emotional reactions from spectators,

and the improper utilization of victim impact evidence. Upon review of each of

these issues, we find no errors, either individually or cumulatively, which entitle

Appellant to a new trial.

Appellant first argues the trial court erred when it overruled his motion to

eliminate "propaganda" from the courtroom during Appellant's trial . Notably,

Appellant's counsel claimed that he saw family members wearing t-shirts

portraying the victim's photograph prior to trial and license plates in the parking

lot which supported the victim . Appellant also stated that he was forced to ask

the Court for escorts to assist in the arrival and departure of his family members

due to harassment and aggressive behavior from spectators .

During a hearing on the matter, Appellant asked the trial court to ban the t-

shirts from the courtroom and to order the Commonwealth to talk with the victim's

family members regarding appropriate courtroom attire . Although noting that it

had not seen any of the t-shirts or inappropriate behavior, the trial court complied

with Appellant's requests and asked the Commonwealth to ensure that the

victim's family members dress appropriately for the trial. The trial court noted
that although it was not granting Appellant's motion at that time, the issue would

remain "open" and "subject to change" should he encounter any inappropriate

conduct. Eventually, the trial court issued an order overruling Appellant's motion

regarding "propaganda."

Appellant now complains that he was denied his right to a fair trial by the

trial court's "refusal to exclude propaganda from the courtroom." See Norris v.

Risley , 918 F.2d 828, 832 (9th Cir. 1990) ("Where fair trial rights are at significant

risk, however, the first amendment rights of trial attendees can and must be

curtailed at the courthouse door. ")(Emphasis added) . Appellant's argument

could possibly have merit if he were able to cite to any "propaganda" displayed in

the courtroom during the trial or which was viewed by the trial jury at any time .

Yet, he cannot do so . Rather, Appellant's argument is based on the alleged

presence of such propaganda "at one time prior to trial" and speculation as to

whether cars outside the courthouse contained the aforementioned license

plates . Thus, no error occurred .

Appellant next alleges he was unduly prejudiced by emotional outbursts in

front of the jury from spectators in the courtroom . The alleged "outbursts"

occurred during the Commonwealth's direct examination of Evidence Technician

Tim Russell . Russell testified about the evidence collected at the crime scene .

Approximately thirty minutes into Russell's testimony, the Commonwealth rapidly

introduced a series of five photographs which depicted the victim as he was

found in his vehicle . Upon review of the record, soft sobbing can be heard during

the brief period of time when photographs of the victim are displayed . The record
also seems to depict spectators leaving the courtroom as they were instructed to

do if they became overwhelmed during the trial.

After the brief series of photographs, Russell continued to testify regarding

additional photographs and evidence found at the scene . Eventually, the

Commonwealth displayed another picture of the victim in which blood is seen on

the back of his neck. Soft sobbing once again can be heard and Appellant's

counsel asked to approach the bench . Due to the emotional nature of the

situation, Appellant's counsel requested a recess, which the trial court granted .

Upon return from the recess, Appellant made a motion for mistrial based

not on the sobbing which occurred in the courtroom prior to the recess, but on an

incident which Appellant's counsel stated he witnessed after the recess . He

reported that he saw several family members on the floor sobbing outside of the

courtroom. Unfortunately, the jury had walked past these family members and

according to Appellant's counsel, some of the jury members began "busting up"

themselves.

The trial court overruled Appellant's motion for mistrial, noting that

Appellant himself was sobbing and weeping in front of the jury to a far greater

extent than any of the spectators or family members and that he witnessed no

"substantial outbursts" from the family. The trial court stated that in the future,

the jury would be taken out the back of the courtroom to avoid any further

problems. Finally, the trial court addressed the audience and advised them that

if they could not maintain their composure during the presentation of the

evidence, they must leave the courtroom . After this admonition to the audience,
there were no additional emotional displays during the remainder of the

presentation of the evidence .

Appellant argues that the cumulative effect of the aforementioned

emotional displays entitled him to a mistrial. However, it is important to note that

Appellant's motion for mistrial was not based on the soft sobbing which occurred

during the brief series of photographs that depicted the victim. In that instance,

Appellant asked for and received his requested remedy - a recess . Rather,

Appellant's motion for mistrial was based solely on the emotional display which

Appellant's counsel stated he witnessed in the hallway outside the courtroom . It

was the jury's reaction to that display which Appellant's counsel argued entitled

his client to a mistrial.

When there is some kind of emotional display by victims or their family

members, this Court has held that an admonition to the jury to disregard the

display is more than sufficient to cure any possible prejudice that might occur

from the situation . See Blackburn v. Commonwealth, 247 S.W .2d 528, 530 (Ky.

1952) (admonition sufficient to cure any prejudice resulting when clothing worn

by victim was displayed, victim's widow screamed, cried, became hysterical and

was escorted from the courtroom) ; Belt v. Commonwealth, 2 S.W.3d 790, 793

(Ky. App. 1999) (admonition remedied any prejudice caused during cross-

examination when victim screamed at and shouted obscenity at defendant while

jurors were being led from courtroom) . In holding as such in these cases, we

have noted the following:

It is a frequent occurrence in homicide cases that the next of kin or
other close relatives, under the stress of testifying, or when
confronted with personal belongings of the deceased, become
emotionally upset, cry, and lose their composure. These are
6
 matters that cannot be anticipated and cannot be prevented by
denying such persons the right to be present in the courtroom
during the trial.

Jackson v. Commonwealth, 275 S .W .2d 788, 789 (Ky. 1955), see also

Blackburn, 247 S.W.2d at 530. Thus, the trial court did not err in overruling

Appellant's motion for mistrial because a mistrial was not the appropriate remedy

in this situation . Rather, the appropriate remedy, if Appellant had asked for it,

would have been an admonition to the jury.

Appellant complains that since the trial judge did not issue such an

admonition, he was prejudiced and deserves a new trial . However, this exact

argument was made and rejected in Jackson, supra . In that case, the Court held

as follows :

Had counsel for [A]ppellant requested the court, it would have been
the duty of the court to admonish the jury concerning such
disturbance . . However, since no such request appears to have
been made, the failure to give the admonition and the conduct
complained of are not considered prejudicial . The court properly
refused to discharge the jury.

Id . at 789.

We find similar holdings in Lanham v. Commonwealth, 171 S.W .3d 14, 32

(Ky. 2005)(no reversible error where several members of victim's family began

crying when photos detailing the crime scene and the victim's injuries were

introduced, even in spite of lack of admonition from trial judge) and Merrifield v.

Commonwealth , 268 S.W.2d 405, 408 (Ky. 1954)(weeping by victim's widow and

corresponding "histrionics" by Commonwealth's attorney did not create reversible

error in case where trial judge failed to admonish the jury to disregard the

emotional displays) . In fact, in Lanham , the case whose facts most closely align

with the facts in this case, this Court held accordingly:
7
 The victim's family members were understandably upset by the
presentation of the crime scene photos, but as the trial judge
recognized, the family members were 'being fairly restrained under
the circumstances.' As such, their crying was not the sort of
emotional outburst that would inflame the jury's passions, and thus
it did not rise to the level of error.

171 S .W.3d at 32 .

In hindsight, we agree with Appellant that an admonition to the jury would

have been desirable in this case. However, an admonition was never requested

and thus, any claim that Appellant was prejudiced by the lack thereof was

waived . See, e.g ., Lanham , 171 S .W.3d at 28-29 ("where an admonishment is

sufficient to cure an error and the defendant fails to ask for the admonishment,

we will not review the error") .

Next, Appellant argues that victim impact and background evidence was

erroneously admitted during the guilt phase of his trial . Because he did not

object to any of these alleged improper admissions of evidence, Appellant asks

this Court to engage in palpable error review regarding this argument. RCr

10.26.

The Commonwealth is not permitted to introduce evidence which serves

little or no legitimate evidentiary purpose other than to engender sympathy for the

victim and his or her.family. See, etc ., Ice v. Commonwealth , 667 S.W.2d 671,

676 (Ky. 1984) . In interpreting this general prohibition, we have explained :

A murder victim can be identified as more than a naked statistic,
and statements identifying the victims as individual human beings
with personalities and activities does not unduly prejudice the
defendant or inflame the jury. Just as the jury visually observed the
appellant in the courtroom, the jury may receive an adequate word
description of the victim as long as the victim is not glorified or
enlarged .
Bowling v. Commonwealth , 942 S.W.2d 293, 302 -303 (Ky. 1997) (internal

citation omitted) .

Appellant claims the following evidence was admitted improperly at trial

and that, either individually or in accumulation, such error is substantial enough

to entitle him to a new trial :

1. Ray Martin, the individual who discovered Brown's body in his car,

briefly volunteered during his testimony that he was emotionally

impacted by the discovery of Brown's body and that he wished he

could have forgotten about it.

2. In response to tearful statements of remorse from Appellant during

direct examination, the prosecutor stated during cross-examination, "so

everyday his family wakes up, they wake up with reminders that he's

not there anymore ." Also, she made comments regarding the victim's

life as compared to Appellant's life during closing arguments . Brown

was described as a young man "loved by his family and friends ."

Appellant was described as a man without a job who possessed lots of

guns and carried one on his person at all times.

3. Josh Farrell, Brown's cousin, testified that he received a telephone call

from Brown's mother who was in "hysterical shock" after learning of

Brown's death and that he was in shock also regarding the death.

4. Witnesses were permitted to testify that Brown had a family, had lots of

friends, and had just graduated high school. The jury further heard

testimony that Brown was attending Lexington Community College,
 that he played basketball with his father, and that he moved in with his

grandmother to help her out.

5. Brown's mother and grandmother were tearful during their testimony .

Additionally, Brown's mother informed the jury that she was very close
with her son and that he told her that he "loved her very much" on the

night he died .

A review of the record demonstrates that the witness testimony cited

above was brief, scattered, and not significant in light of the fact that the

overwhelming bulk of the testimony from these witnesses not cited by Appellant

was relevant and served legitimate evidentiary purposes other than to engender

sympathy.' Testimony from Brown's family members describing Brown's life,

their reaction to his death, or their felationship with Brown was brief,

unembellished, and none of it enlarged or glorified the victim. A review of the

record reveals that Ray Martin's brief statement was spontaneous and

volunteered . Finally, the prosecutor's comments are not significant or substantial

enough to create manifest injustice affecting Appellant's substantial rights . On

balance, we find this evidence to be proper in light of the context in which it was

admitted or inadvertently admitted through legitimate examination . In any event,

even if a portion of it was improper, it certainly does not rise, either individually or

cumulatively, to the level of palpable error.

' Brown's family members offered probative testimony regarding the case in
addition to their brief descriptions of the victim's personal characteristics . For
example, family members testified regarding the following : (1) the timeline of
Brown's actions that night and why he happened to be in that particular trailer
park ; (2) how Appellant became acquainted with Brown through Brown's friends
and family; and (3) that Brown's family did not see or come across any
belongings in Brown's possession which did not belong to Brown or which
matched the items reportedly stolen from Appellant's residence .
10
 11. The trial court did not err regarding the introduction of photographs.

Appellant next argues the trial court erred in admitting (1) photographs of

the victim; and (2) photographs of guns found in Appellant's home . Appellant

contends that photographs of the victim were inflammatory and overly prejudicial.

As for the photographs of Appellant's guns, Appellant argues they are irrelevant

and also unduly prejudicial . For the reasons set forth herein, we disagree .

During Evidence Technician Tim Russell's testimony, the Commonwealth

reviewed a brief series of photographs which depicted the victim in his vehicle as

he was found on the night of his death . During this testimony, the trial court

ordered a recess in order to allow the parties to take a break. Upon return from

the recess, Appellant's counsel made two motions. First, he asked for a mistrial

due to an emotional display that he stated he saw in the hallway. Second, he

asked the trial court to prohibit the Commonwealth from displaying two additional

photographs depicting a close up view of the victim's neck wound at autopsy.

Appellant's counsel argued that these pictures would be "overkill ." The

Commonwealth explained that the two additional pictures were required to prove

the following : (1) the cause of death ; (2) the location of the bullet wound ; and (3)

the direction the bullet traveled before piercing the victim.

"The rule prohibiting the exhibition of inflammatory evidence to a jury does

not preclude the revelation of the true facts surrounding the commission of a

crime when these facts are relevant and necessary ." Adkins v. Commonwealth,

96 S.W.3d 779, 794 (Ky. 2003) . Here, the trial court ruled that the photographs

in general were not overly gruesome and were relevant and necessary to prove

the location of the victim's injury and how it caused his death . Appellant counters
that since he admitted killing the victim, it was unnecessary to prove the cause

and nature of his death . However, we agree with the trial court that the probative

value of the photographs was far outweighed by any potential prejudice caused

by their display . See Barnett v. Commonwealth , 979 S.W.2d 98, 103 (Ky. 1998)

("[T]he prosecution is permitted to prove its case by competent evidence of its

own choosing, and the defendant may not stipulate away the parts of the case

that he does not want the jury to see ."). Thus, no error occurred .

Appellant also cites as error the admission of photographs depicting

several guns found in his home . He claims such photographs are irrelevant and

highly inflammatory . The Commonwealth points out that the photographs were

not introduced during its case-in-chief, but rather they were introduced during the

cross-examination of Appellant . Without objection, the Commonwealth

questioned Appellant's knowledge of firearms, his collection of various types of

guns, his frequent trips to the firing range for target shooting, and the fact that he

took "safety" classes in preparation for a "concealed carry" permit. The purpose

of these questions, and the corresponding admission of photographs depicting

Appellant's guns into evidence, was to prove Appellant's keen knowledge and

skill with firearms, and thus, refute the likelihood of Appellant's claim that he did

not intend to' shoot Brown when he fired at Brown's vehicle . We agree that such

questioning is relevant and that photographs used to assist the Commonwealth's

questioning were probative enough to outweigh any counterbalancing prejudicial

effect . KRE 403.

III . The trial court did not err when it overruled Appellant's motion for a

missing evidence instruction .

12
 Appellant claims that he was entitled to a missing evidence instruction

because police released the victim's Pontiac Sunbird to his family approximately

three weeks after the victim's death . Prior to releasing the vehicle, police

conducted extensive processing on the vehicle, including taking numerous

photographs / video, paint samples, projectile collection, and fingerprints . The

contents of the vehicle were also documented and stored. Appellant claims that

the vehicle was important to his case because it might have supported his

testimony that the victim crashed into his vehicle prior to crashing into the other

vehicles .

A missing evidence instruction is necessary "only when the failure to

preserve or collect the missing evidence was intentional and the potentially

exculpatory nature of the evidence was apparent at the time it was lost or

destroyed." Estep v. Commonwealth , 64 S .W.3d 805, 810 (Ky. 2002). At a

hearing on the matter, the trial court received testimony indicating that the police

did not act outside of their ordinary procedures when they released the vehicle.

Testimony also revealed that the vehicle was released because police believed

that it had no additional evidentiary value after processing . The trial court thus

found no bad faith on the part of the officers and determined that both the police

and the Commonwealth were unaware that a collision -might have occurred

between the victim's vehicle and Appellant's vehicle at the time the Sunbird was

released to the family . See Mills v. Commonwealth , 170 S .W.3d 310, 332 (Ky.

2005) (lack of bad faith precluded requiring a missing evidence instruction) ;

Roark v. Commonwealth , 90 S.W.3d 24, 38 (Ky. 2002) ("absent some degree of
'bad faith,' the defendant is not entitled to [a missing evidence] instruction") . In

light of these findings, a missing evidence instruction was clearly not warranted .

IV. Opinion evidence was properly admitted.

Appellant argues the trial court erred in permitting Sergeant Jay

Postlewaite to testify as an expert regarding his opinions on how damage

occurred to the victim's vehicle . Of primary importance to Appellant, Officer

Postlewaite opined that damage to the victim's vehicle was consistent with hitting

the parked cars found at the scene of the crime. During rebuttal, Postlewaite

was also permitted to opine, based on an examination of a photograph of

Appellant's vehicle, that damage on the left front bumper of the vehicle appeared

consistent with damage that is typically caused by forces acting from below the

vehicle . Postlewaite then offered several examples in which damage can be

caused from below the vehicle - such as "backing over a curb ." Finally,

Postlewaite opined that he would have expected to see more paint transfer on

both vehicles and more parallel damage located higher up on Appellant's vehicle

if the damage in the photograph was caused by the fender of another vehicle

running into Appellant's vehicle.

Appellant complains that Postlewaite's testimony was unreliable and thus,

inadmissible . See Ragland v. Commonwealth , 191 S.W .3d 569, 574 (Ky. 2006)

(expert testimony not admissible unless it meets reliability standards of KRE

702) . We review reliability determinations for clear error. Miller v. Eldridge , 146

S.W.3d 909, 916 (Ky. 2004) . Upon review of the record, we find no clear error in

the trial court's determination that Postlewaite's testimony met the threshold

reliability standards set forth in KRE 702.

14
 Appellant does not challenge whether Postlewaite is generally qualified,

based on his significant training and experience, to offer opinions in the area of

accident reconstruction . Rather, Appellant challenges whether Postlewaite

conducted a sufficient investigation and analysis to support his opinions in this

particular case. Notably, Postlewaite testified that since the fatality in this case

was not caused by a vehicle collision (but rather a firearm), a formal accident

reconstruction was not performed . His purpose at the scene of the crime,

therefore, was not to perform an accident reconstruction but to collect evidence

and document the scene for the purpose of conducting a homicide investigation .

Appellant argues that since all of the documentation and analysis

generally performed in a formal accident reconstruction were not performed in

this case, Postlewaite was not qualified to offer opinions regarding how any of

the vehicles may have been damaged . Appellant further argues that a simple

photograph of damage to Appellant's vehicle was not sufficient to allow

Postlewaite to speculate as to how the damage may have been caused . We

disagree .

Although he was at the scene for other purposes, Postlewaite testified that

he was nonetheless qualified to offer opinions in the area of accident

reconstruction since he was able to personally observe and analyze the scene,

photographs, and other evidence. On cross-examination, Postlewaite noted that

most, but not all, of the documentation and analysis involved in a formal accident

reconstruction were performed in this case. Finally, Postlewaite testified that it

was not unusual for him to be able to analyze and draw conclusions regarding

the cause of damage to vehicles based on photographs alone .

15
 The trial court concluded that although Postlewaite's investigation was not

as extensive as it might have been had he performed a formal accident

reconstruction, it was extensive enough to satisfy the minimum threshold

requirements of KRE 702. It further ruled that Postlewaite's significant training

and experience were sufficient to allow him to analyze and draw conclusions

based on the photograph alone . We find no error in these admissibility

determinations . As the trial court noted, Appellant's objections were appropriate

to address the weight of Postlewaite's opinions, but were not sufficient to render

his testimony completely inadmissible .

V. There were no violations of constitutional rights .

Appellant next argues that his constitutional right to be free of warrantless

searches was violated when the Commonwealth introduced evidence that

Appellant refused to consent to fingerprint sampling. In Deno v. Commonwealth,

177 S.W.3d 753 (Ky. 2005), this Court held that it is unconstitutional to penalize a

defendant for exercising his right to be free of warrantless searches . Id . at 762.

"In determining whether a constitutional right has been burdened

impermissibly, it also is appropriate to consider the legitimacy of the challenged

governmental practice ." Jenkins v. Anderson , 447 U .S . 231, 238, 100 S. Ct.

2124, 65 L.Ed .2d 86 (1980). The facts in this case differ from those set forth in

Deno , supra, in that Appellant's refusal to consent to fingerprint sampling was

relevant for purposes other than to simply penalize him for the exercise of a legal

privilege . Rather, the government utilized this evidence for the legitimate

purposes of rebuttal and impeachment of a self defense claim advanced by

Appellant at trial .

16
 Specifically, the Commonwealth argued that Appellant's claim of self

defense was not credible in light of the circumstances which transpired in this

case . These circumstances included evidence which tended to show that

Appellant initially did everything in his power to deny involvement, destroy

evidence, and avoid prosecution . Only when these attempts failed, the

Commonwealth argued, did Appellant change his story and claim self defense.

The evidence regarding Appellant's refusal to consent to fingerprint sampling

was introduced during a string of testimony which suggested that not only did

Appellant fail to come forward with his claim of self defense despite several

opportunities to do so, but also he took affirmative steps to undermine the

investigation . Police testified that Appellant was initially cooperative with them,

readily agreeing to talk and denying any knowledge of the circumstances

surrounding the victim's death . However, when police mentioned that they

recovered fingerprints from the scene and asked whether Appellant would mind

providing fingerprint samples, Appellant suddenly became evasive and

uncooperative .

Once Appellant submitted himself to cross-examination after claiming self

defense at trial, it was not only appropriate but necessary for the Commonwealth

to impeach Appellant's credibility and rebut his allegations . As the traditional

truth-testing devices of the adversarial process, impeachment and rebuttal

are vital to ensuring a just and fair trial. Thus, preserving each party's right

to utilize such devices at trial should weigh heavily when considering

counterbalancing claims of "constitutional privilege ." See Jenkins , 447 U.S .

at 238 ("Once a defendant decides to testify, '[t]he interests of the other party and

17
 regard for the function of courts of justice to ascertain the truth become relevant,

and prevail in the balance of considerations determining the scope and limits of

the privilege against self-incrimination ."') (quoting Brown v. United States, 356

U .S. 148, 156, 78 S.Ct. 622, 627, 2 L.Ed.2d 589 (1958)).

Indeed, a similar governmental practice was condoned by the U .S.

Supreme Court in Jenkins , supra. On trial for murder, the defendant testified that

he killed in self defense. In an attempt to impeach the defendant's credibility, the

prosecutor introduced evidence demonstrating that he failed to voluntarily come

forward with his story until after he was apprehended by police two weeks after

the murder. The U .S . Supreme Court held that use of the defendant's prearrest

silence against him at trial was not unconstitutional since "impeachment follows

the defendant's own decision to cast aside his cloak of silence and advances the

truth-finding function of the criminal trial." Jenkins , 447 U .S. at 238 .

In United States v. Robinson, 485 U .S . 25, 108 S.Ct. 864, 99 L .Ed.2d 23

(1988), the defendant's attorney argued several times during closing argument

that the Government never allowed the defendant (who did not testify) to explain .

his side of the story. 485 U .S. at 26. In response, the prosecutor commented

during his closing argument that the defendant "could have taken the stand and

explained it to you." Id . The defendant's convictions were subsequently

reversed on grounds that the prosecutor's comment regarding the defendant's

failure to take the stand in his own defense violated the defendant's privilege

against self-incrimination . Id. at 29 . On appeal, the U .S. Supreme Court found

no violation of any constitutional rights since the prosecutor's "reference to the

defendant's opportunity to testify [was] a fair response to a claim made by

18
defendant or his counsel ." Id. at 32. In so holding, the Court quoted Justice

Stevens for the following principle: "the protective shield of the Fifth Amendment

should [not] be converted into a sword that cuts back on the area of legitimate

comment by the prosecutor on the weaknesses in the defense case ." Id.

(quoting United States v. Hasting, 461 U .S . 499, 515, 103 S.Ct. 1974, 1984, 76

L.Ed.2d 96 (1983) (Stevens, J ., concurring) (citation omitted)).

Although Jenkins and Robinson involved the privilege against self-

incrimination and whether arguments regarding its use violated either the Fifth or

Fourteenth Amendments, the principles set forth therein aptly apply to this case

and the determination as to whether these facts violated the Fourth Amendment

and Section 10 of the Kentucky Constitution . Generally, such as in Deno ,

exercising one's privilege to be free of warrantless searches is simply not

probative (or has low probative value) to a determination of guilt, and thus, the

defendant's right to not be penalized for exercising such a privilege is paramount .

See , e.g United States v. Thame , 846 F .2d 200, 207 (3rd Cir. 1988), United

States v. Prescott , 581 F.2d 1343, 1350-51 (9th Cir. 1978) . However, in

circumstances when such evidence is probative for some purpose other than to

simply penalize the defendant for exercising a constitutional right, then notions of

fair play and the need to preserve the truth-testing functions of the adversarial

process may outweigh the defendant's interest in suppressing the evidence. See

United States v. McNatt, 931 F.2d 251, 256 (4th Cir. 1991) (no Fourth

Amendment violation where comments regarding defendant's refusal to permit

search were in fair response to defendant's argument that drugs were planted by

police in his vehicle) ; United States v. Dozal , 173 F.3d 787, 794 (10th Cir. 1999)

19
 (no Fourth Amendment violation where comments regarding defendant's refusal

to permit search were admitted for proper purposes and were not meant to

simply penalize defendant for exercising a constitutional right - in this case, the

evidence helped establish that defendant had dominion and control over the

premises), Leavitt v. Arave , 383 F.3d 809, 828 (9th Cir . 2004) (comments

regarding one's exercise of Fourth Amendment rights are generally improper

unless such comments fairly rebut a claim by defendant - in this case, evidence

showing that defendant was the only suspect who refused to voluntarily give a

blood sample was properly admitted to rebut defendant's claim that he

cooperated with the investigation) . See generally , Kenneth J . Melilli, The

Consequences of Refusing Consent to a Search or Seizure: The Unfortunate

Constitutional ization of an Evidentiary Issue, 75 S . Cal. L. Rev. 901, 937 (2002)

(arguing that the best approach to determining the admissibility of "refusal to

consent" evidence is the rules of evidence).

On balance, we believe the facts in this case do not demonstrate a

violation of Appellant constitutional rights under the Fourth Amendment or

Section 10 of Kentucky's Constitution . The circumstances surrounding

Appellant's refusal to voluntarily consent to fingerprint sampling were fairly

admitted for the proper purposes of rebutting and impeaching Appellant's claim of

self defense . Since we find that Appellant was not unfairly penalized for

exercising a constitutional right, Appellant is not entitled to relief on this issue .

In any event, were one to argue error occurred, we find it to be harmless

beyond a reasonable doubt. This case did not turn on the palm and fingerprints

recovered from the victim's car. Appellant admitted placing his prints on the car

20
 during an altercation with the victim . Also and most importantly, an integral part

of Appellant's explanation of the evidence was that he initially took steps to

destroy evidence, cover up the crime, and evade police. In addition to admitting

that he was uncooperative in providing a sample of his fingerprints to police due

to the fact that he knew his prints matched those found on the victim's vehicle, he

testified that he fled the scene, disposed of his gun, canceled his cell phone,

cleaned red paint off of his car, and removed glass from a partially shattered turn

signal on his vehicle so that it could not be matched to glass found at the scene .

Thus, not only were the circumstances surrounding Appellant's refusal to provide

fingerprint samples undisputed, but also the evidence was cumulative in the

sense that the jury already heard a plethora of evidence regarding evasive

actions taken by Appellant . Under these circumstances, we simply cannot see

how there is any reasonable possibility that this evidence contributed to the jury's

verdict. See Jarvis v. Commonwealth , 960 S.W.2d 466, 471 (Ky. 1998) .

In a related argument, Appellant claims his Fifth Amendments rights were

also violated during the following cross-examination of a detective conducted by

Appellant's counsel :3

Q. Now, you did have a couple of interviews with [Appellant],
did you ever ask if there was anyone sitting in the vehicle
with him?

2 Appellant's actions after the crime were never disputed at this trial, but rather it
was the motive behind Appellant's actions which were disputed . Appellant
claimed that his actions were motivated by fear for his life and fear that police
would not believe his story; the Commonwealth claimed that Appellant's actions
were motivated by a desire to hide his guilt .
3 Appellant also complains that the prosecutor made an issue of his refusal to
speak with police during opening statement, during the examination of another
detective, and during closing argument. However, a review of the record proves
that this is not accurate . Appellant's citations refer solely to his evasive actions
regarding his reluctance to provide fingerprint samples .
21
 A. No.
Q. You did not?
A. No.
Q. Did you ask Starla if there was anyone sitting in the vehicle,
if she knew?
A. Yes.
Q. You did?
A. Yes, May 19th, May 19th.
Q. But in both interviews with [Appellant] you never asked him
that?
A. He had no knowledge of how Brian Brown was killed.
Q. Okay. So you took it upon yourself to not ask that question
then?
A. He refused to talk to me the second time .
Q. The first time he talked to you?
A. Yes.

Appellant contends that the detective's reference to his "refus[al] to talk to

me the second time" was unconstitutional and constituted reversible error. We

disagree . The detective's comment was in fair and direct response to

questioning by Appellant's attorney . While the Commonwealth commented on

Appellant's failure to come forward with his self defense claim sooner, it at no

time made an issue of Appellant's specific refusal to talk with police after their

initial interviews with him . In light of the case law set forth above, we find no

violations of Appellant's Fifth Amendment rights in this case . See , e .g_, Jenkins ,

supra; Robinson, supra .

Finding no error, the judgment and sentence of the Fayette Circuit Court

is affirmed .

All sitting . Lambert, CJ ; Cunningham, Minton, Noble, Schroder and Scott,

JJ ., concur .
COUNSEL FOR APPELLANT :

Shannon Dupree
Assistant Public Advocate
Department for Public Advocacy
100 Fair Oaks Lane, Suite 301
Frankfort, KY 40601

COUNSEL FOR APPELLEE:

Gregory D. Stumbo
Attorney General

Matthew R. Krygiel
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601