IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: APRIL 18, 2024 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2023-SC-0098-MR
ANTONIO TYREE GASKIN APPELLANT
ON APPEAL FROM FAYETTE CIRCUIT COURT V. HONORABLE THOMAS L. TRAVIS, JUDGE NO. 20-CR-00180
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Antonio Gaskin was convicted following a jury trial in Fayette Circuit
Court of two counts of murder and two counts of failure of a person to report a
death. Upon receiving a sentence of life imprisonment, he now appeals as a
matter of right. 1 Following a careful review, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Just before 11 a.m. on the morning of October 16, 2019, an anonymous
caller informed the Lexington Police Department (“LPD”) that a person or
persons may have been shot inside an apartment on Alexandria Drive in
Lexington, Kentucky. Responding officers made entry into the apartment
where they located the bodies of Marquis Harris and Sharmaine Carter in the
1 KY. CONST. § 110(2)(b). kitchen. Both had been shot multiple times in the head and chest. Harris was
wearing a backpack and had a travel pillow around his neck.
Further investigation revealed the apartment was rented to Harris and
was likely used as a location to traffic narcotics. The front door had been fitted
with a mechanism by which a 2x4 wood plank could be installed and locked
into place as a barricade. Officers located a security camera in a back
bedroom, and it appeared another had been removed from the kitchen above
where the bodies were found. Several items were collected from the scene
which were sent for fingerprint analysis and DNA testing. Gaskin’s fingerprints
were found on a Sprite can and Solo cup while his DNA was present on the
same Sprite can and a cigarette butt.
In the first few hours of the investigation, LPD officers obtained cellphone
records revealing Gaskin’s phone was at the apartment on the night of October
15. Officers discovered Harris called Gaskin at 9:05 p.m. and 9:09 p.m. that
night. The latter call was the last activity on Harris’s phone. Carter’s final call
was to Harris at 7:46 p.m. Video surveillance from a neighboring business
showed a white passenger car pulling up in front of the apartment at
approximately 9:10 p.m. that evening and two figures moving around it. No
positive identification could be made of either of the individuals based on the
distance of the vehicle from the camera’s location.
The day after the bodies were discovered, police were contacted by
George Heard who had seen news coverage of the murders. Heard told officers
he was a Lyft driver who also provided his driving services outside the
2 parameters of his usual work as a “side gig.” He had given Harris rides on
several previous occasions. Heard said he had picked Harris up in Detroit,
Michigan, and driven him back to the Alexandria drive apartment on October
15. He recalled Harris was traveling with a backpack and routinely wore a
neck pillow on long car rides. Upon arriving at the apartment, Harris was
short on the fare, so he called someone to bring him the remaining $50. A man
came to the car and handed Heard the cash before walking with Harris back to
the apartment. Heard would later identify Gaskin as the man who paid him
after being shown a single photograph by the investigating officer.
Around this same time, LPD received an anonymous tip that Gaskin was
responsible for the murders, prompting a search for connections between
Gaskin and the victims. Detectives obtained search warrants for cellphone
records and were able to locate an individual who occasionally gave Gaskin
rides in exchange for favors, commonly in the form of drugs. He indicated he
knew Gaskin and Harris and that he had dropped Gaskin off at the Alexandria
Drive apartments on October 15 between 8:50 p.m. and 9:00 p.m. Gaskin
called him back at around 9:20 p.m. but he did not answer. Additional
searches of Gaskin’s cellphone records and more in-depth investigation
revealed he had contacted a taxicab service on October 16 seeking a ride from
the Greyhound bus station in Cincinnati back to Lexington. The driver took
Gaskin to the apartment where Harris and Carter were found later that
morning. Gaskin went into and out of the apartment several times and
appeared to be putting things in his pockets.
3 Sometime in the morning hours of October 16, Gaskin contacted Harris’s
mother and told her she should get the family together and travel to Lexington.
Shortly thereafter, Harris’s sister called Gaskin and he informed her Harris and
Carter were dead. Gaskin was asked to contact police to report the deaths, but
he refused. Another family member made the anonymous call to LPD which
was received at 10:55 a.m. At some later time, Gaskin told Harris’s family
members he had entered the apartment and found the dead bodies.
Gaskin was subsequently indicted for two counts of murder, two counts
of failure of a person to report a death, and being a persistent felony offender in
the second degree (PFO II). A five-day jury trial commenced on July 18, 2021.
During the guilt phase, the Commonwealth called eighteen witnesses and
Gaskin called six; almost seventy exhibits were entered into the record. The
jury convicted Gaskin on the charges of murder and failure to report a death
and recommended a sentence of life imprisonment. 2 This appeal followed.
II. ANALYSIS
Gaskin raises several assignments of error in seeking reversal. First, he
contends the trial court erroneously denied his pretrial motion to suppress the
out-of-court identification by Heard as unduly suggestive and lacking in
reliability. Second, Gaskin contends the Commonwealth was improperly
permitted to present rebuttal testimony from a witness who had not been
separated and had been in the courtroom during testimony by other witnesses
2 Prior to sentencing, the Commonwealth moved to dismiss the PFO II charge.
The jury was not charged to consider sentencing on the misdemeanor offenses.
4 in violation of KRE 3 615. Third, he alleges the Commonwealth engaged in
prosecutorial misconduct during closing arguments by violating multiple
pretrial rulings. Finally, Gaskin seeks reversal under the cumulative error
doctrine.
A. Suppression of the out-of court identification was unwarranted.
The day after the murders, Heard contacted police and provided
information about occurrences close in time to the murder, specifically that he
had dropped Harris off at the apartment and an African American man whom
he had seen before had come out of the apartment to pay a portion of the fare
for Harris’s trip to Lexington from Detroit because Harris was short on cash.
Approximately twenty-eight days later, Heard gave a video-recorded interview
with investigators in which he reiterated the information he had previously
provided. During the interview, Heard was shown a single photograph and
asked if it looked like the man who had paid him the $50 on the night of the
murders. Heard indicated the photograph “looked like him” and he had seen
the person who paid him “once or twice” before.
Prior to trial, Gaskin moved to suppress Heard’s out-of-court
identification of him, asserting the procedure used by police was unduly
suggestive and the identification was otherwise unreliable. He argued the
encounter on the night of the murders was brief and nothing about the
circumstances of a simple money exchange would trigger a heightened need for
3 Kentucky Rules of Evidence.
5 attention to detail. Gaskin highlighted the fact that Heard’s initial description
of the man he saw was generic and vague, and he expressed no level of
certainty at the time he was shown the single photograph. He also contended
the nearly-month-long delay before the identification, when coupled with the
inherently suggestive nature of the police procedure used, made his out-of-
court identification unreliable. Following a suppression hearing, the trial court
issued a six-page order wherein it determined the single-photo procedure “may
have been unnecessarily suggestive” but concluded the totality of the
circumstances rendered the identification reliable and suppression was not
required. Gaskin disagrees with that holding and now urges reversal.
A trial court’s findings of fact on motions to suppress evidence are
subject to the “clearly erroneous” standard of review. Neil v. Biggers, 409 U.S.
188, 199 (1972). Rulings on the admissibility of evidence are reviewed for an
abuse of discretion. Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575,
576 (Ky. 2000). An abuse of discretion occurs when a “trial judge’s decision
was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”
Id. at 581 (citing Commonwealth v. English, 993 S.W.2d 941 (Ky. 1999)).
We employ a two-pronged test to determine whether identification
testimony violates a defendant’s due process rights. Commonwealth v. Parker,
409 S.W.3d 350, 352 (Ky. 2013) (stating “[t]he determination of whether
identification testimony violates a defendant’s due process rights involves a
two-step process.” (citations omitted)). The Court must first determine whether
the procedure used for the identification was unnecessarily suggestive. Perry v.
6 New Hampshire, 565 U.S. 228, 238-39 (2012) (“[D]ue process concerns arise
only when law enforcement officers use an identification procedure that is both
suggestive and unnecessary.”). “If so, ‘the identification may still be admissible
if under the totality of the circumstances the identification was reliable even
though the [identification] procedure was suggestive.’” Dillingham v.
Commonwealth, 995 S.W.2d 377, 383 (Ky. 1999) (quoting Stewart v.
Duckworth, 93 F.3d 262, 265 (7th Cir. 1996)).
Heard’s in-person identification was based on a single photograph, rather
than the preferred methods of using photo arrays or “mug books” containing
multiple photographs.
This procedure is similar to a showup and is similarly received by the courts. . . . The most circumspect identification is where a single photo is presented. Where this occurs, courts assume suggestiveness and then inquire as to the totality of circumstances to see if the identification was otherwise reliable.
Leslie W. Abramson, 8 Ky. Prac., Crim. Prac. & Proc. § 20:24 (6th ed.).
Although showup identifications are inherently suggestive, they may be
necessary to “aid the police in either establishing probable cause or clearing a
possible suspect.” Savage v. Commonwealth, 920 S.W.2d 512, 513 (Ky. 1995).
Here, because a showup procedure was utilized which is inherently
circumspect, we conclude it was both suggestive and unnecessary. See Sweatt
v. Commonwealth, 550 S.W.2d 520, 522 (Ky. 1977) (a showup is not a generally
approved method of securing an identification).
7 Having concluded the identification procedure was suggestive, we turn to
the second prong of the analysis to determine if Heard’s identification was
otherwise reliable. In Neil, the United States Supreme Court stated an out-of-
court identification would not be held to violate due process if under the
“‘totality of the circumstances’ the identification was reliable even though the
confrontation procedure was suggestive.” 409 U.S. at 199. Assessing the
totality of the circumstances requires consideration of the five factors
enumerated in Neil. Those factors are: 1) the opportunity of the witness to
view the criminal; 2) the witness’ degree of attention; 3) the accuracy of prior
descriptions of the criminal; 4) the level of certainty demonstrated at the
confrontation; and 5) the time between the crime and confrontation. Id. at
199-200. Therefore, the emphasis in Neil was on the reliability of the
identification itself.
It is, first of all, apparent that the primary evil to be avoided is ‘a very substantial likelihood of irreparable misidentification.’ Simmons v. United States, 390 U.S. [377, 384 (1968)]. While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of ‘irreparable’ it serves equally well as a standard for the admissibility of testimony concerning the out-of- court identification itself. It is the likelihood of misidentification which violates a defendant’s right to due process, and it is this which was the basis of the exclusion of evidence in [Foster v. California, 394 U.S. 440 (1969)]. Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous. But as [Stovall v. Denno, 388 U.S. 293 (1967)] makes
8 clear, the admission of evidence of a showup without more does not violate due process.
Id. at 198 (footnote omitted). Furthermore, even if a suggestive and
unnecessary procedure is utilized, “suppression of the resulting identification
is not the inevitable consequence.” Perry, 565 U.S. at 239 (citing Manson v.
Brathwaite, 432 U.S. 98, 112-13 (1977)). Thus, an identification will be
excluded on due process grounds only when “improper police conduct created
a ‘substantial likelihood of misidentification.’” Id. (quoting Neil, 409 U.S. at
201).
Turning to the five totality of the circumstances factors, we conclude they
weigh in favor of the reliability, and thus the admissibility, of Heard’s
identification. The trial court found all five factors weighed in favor of
reliability and we agree. First, it is undisputed Heard had an opportunity to
view an individual at the Alexandria Drive apartment complex. He engaged in
a hand-to-hand cash transaction at a distance of less than two feet under the
illumination of streetlights. Second, Heard was able to give a detailed account
of the events of the evening and his attention would have been drawn to the
person paying the remainder of the fare for which his passenger was short.
Third, although his initial description was somewhat vague, it was accurate,
and he stated he had seen the individual on previous occasions. Fourth, while
he was not asked to give a precise level of confidence or certainty in his
identification, Heard did not equivocate when stating the photograph looked
like the man he saw the night of the murders. Finally, the delay of thirty days
9 between the crime and the identification does not taint its overall reliability. 4
In Neil, the victim did not identify the perpetrator for seven months. 409 U.S.
at 194-95. In Beecham v. Commonwealth, 594 S.W.2d 898, 899 (Ky. App.
1979), the Court of Appeals noted the five years between the offense and
photographic identification was a “weak point” in the case, yet ultimately
concluded the identification evidence was properly admitted. And in
Kordenbrock v. Scroggy, 919 F.2d 1091, 1103 (6th Cir. 1990), a delay of
approximately one month was deemed “relatively short” and was not a negative
factor in the reliability calculus.
Although the showup procedure was unduly suggestive, we hold that,
under the five factors set out in Neil, the identification was nonetheless reliable.
There is always a possibility of mistaken identity. But “[t]he accuracy of an
identification, though it is based on memory and the senses alone, still lies
within the inherent province of the jury to assess.” Stephens v.
Commonwealth, 489 S.W.2d 249, 252 (Ky. 1972) (quoting Burton v.
Commonwealth, 442 S.W.2d 583, 585 (Ky. 1969)). Gaskin would only be
denied due process if the “photographic identification procedure was so
4 As Gaskin correctly notes, the trial court’s suppression order erroneously found the delay to be less than forty-eight hours. However, the error was not brought to the trial court’s attention for correction or modification. Almost all issues are subject to waiver from inaction or consent, even in a criminal case, and “[a] new theory of error cannot be raised for the first time on appeal.” Springer v. Commonwealth, 998 S.W.2d 439, 446 (Ky. 1999). Furthermore, in spite of the trial court’s erroneous finding, this Court “may affirm a correct result upon any ground supported by the record” even if the lower court “reaches its judgment for the wrong reason.” Wells v. Commonwealth, 512 S.W.3d 720, 721-22 (Ky. 2017) (citing Jarvis v. Commonwealth, 960 S.W.2d 466, 469 (Ky. 1998)).
10 impermissibly suggestive as to give rise to the very substantial likelihood of
irreparable misidentification.” Simmons, 390 U.S. at 385. No such likelihood
was shown in this case. Thus, under the circumstances presented, we discern
no abuse of discretion in the trial court admitting Heard’s out-of-court
identification of Gaskin and the evidence was properly allowed to go to the jury.
B. No abuse of discretion occurred in allowing rebuttal testimony.
Second, Gaskin asserts the trial court erroneously permitted the
Commonwealth to present rebuttal testimony from Lance Collins who was in
the gallery during testimony from other witnesses after a motion had been
made under KRE 615 for separation of witnesses. 5 He contends the
Commonwealth concealed knowledge of Collins to ambush the defense and
resulted in undue prejudice.
On the third day of trial, a detective was cross-examined extensively by
the defense about a death threat sent via text message to Carter approximately
fourteen days prior to her murder. The detective did not recall ever seeing the
message and admitted he was unaware of the identity of the sender, nor had he
5 KRE 615 states: At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses and it may make the order on its own motion. This rule does not authorize exclusion of: (1) A party who is a natural person; (2) An officer or employee of a party which is not a natural person designated as its representative by its attorney; or (3) A person whose presence is shown by a party to be essential to the presentation of the party’s cause.
11 investigated the threat. The following morning, the Commonwealth informed
the trial court and Gaskin that Collins had approached during the previous
day’s lunch recess and claimed to be the author of the threatening message.
Collins was directed not to reenter the courtroom or have any contact with the
victims’ families. He was placed in an anteroom for the remainder of the day
until the Commonwealth could interview him to determine whether he should
be called in rebuttal. Gaskin raised no objection to the disclosure.
After Gaskin closed his case, the Commonwealth called Collins in
rebuttal. He testified he was Carter’s boyfriend in 2019 and had been present
in the courtroom when the detective was asked about the threatening text
message. Gaskin immediately objected to Collins testifying as his presence in
the courtroom the previous day during the testimony of other witnesses
constituted a violation of KRE 615. He argued that even an inadvertent
violation of the rule requires exclusion of the offending witness’s testimony.
After hearing the parties’ positions, the trial court concluded whether to allow
Collins to testify was discretionary. Because he was previously unknown to all
parties, his testimony would be limited to factual rebuttal, and neither party
would gain an undue advantage or prejudice from his testimony, the trial court
ruled Collins could testify.
Collins confirmed he had sent the threatening messages and stated he
and Carter were merely “bickering” rather than actually fighting. He stated he
was in Detroit, Michigan, at the time and was not in Lexington on the date of
the murders. Collins stated he and Carter were back on good terms before her
12 death and denied any role in the killings. Gaskin asserts the violation of KRE
615 required all of Collins’ testimony to be excluded. Alternatively, he
contends the testimony should have been disallowed because Commonwealth
acted in bad faith by concealing Collins’ presence. We discern no error.
The purpose of separating witnesses is “to insure (sic) the integrity of the
trial by denying a witness the opportunity to alter his testimony.” Reams v.
Stutler, 642 S.W.2d 586, 589 (Ky. 1982). “We have uniformly interpreted the
separation rule as providing a trial judge broad discretion to permit or refuse to
permit a witness to testify who has violated the rule and have refused to
intervene in such matters except in cases where that discretion has been
abused.” Jones v. Commonwealth, 623 S.W.2d 226, 227 (Ky. 1981). “The test
for abuse of discretion is whether the trial judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.”
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Further, an
appellant must show he was prejudiced when a rebuttal witness was called
after hearing other witnesses testify. As we have previously held, “a violation
without prejudice would not entitle a party to any relief.” Smith v. Miller, 127
S.W.3d 644, 647 (Ky. 2004).
Gaskin’s defense relied in large part on attempting to show the
investigation into the murders was superficial and incomplete, and in pointing
the finger at an unknown alternate perpetrator. To further the defense, Gaskin
introduced the threatening texts when cross-examining the investigating
detective and keyed in on the fact that the sender was unknown to police
13 because of a failure to investigate. Unbeknownst to anyone, Collins was in the
gallery and recognized the texts as being his own. As the trial court noted,
until that point Collins “wasn’t on anyone’s radar” nor was there any indication
he would be a potential witness. Thus, the trial court concluded there was no
“mischief” afoot and that permitting Collins to testify in rebuttal was
appropriate under the specific circumstances presented.
Rebuttal testimony responds to something brought up in a defendant's
case that the Commonwealth could not reasonably anticipate. However,
“[r]ebuttal does not offer a protective umbrella, under which prosecutors may
lay in wait.” Chestnut v. Commonwealth, 250 S.W.3d 288, 297 (Ky. 2008).
Such was simply not the case here. Nothing in the record supports a finding
the Commonwealth acted in bad faith or willingly or knowingly concealed
Collins’ presence or potential testimony. We discern no strategic violation of
any rules by the Commonwealth or any attempt to surprise Gaskin with an
undisclosed witness. Collins was previously unknown to law enforcement or
the Commonwealth, potentially due to the incomplete investigation as argued
by Gaskin in his defense. He was present in the courtroom of his own volition
to watch the trial of the person accused of killing his former girlfriend. It was
not until the detective spoke of the threatening messages that he recognized
them as his own and approached the Commonwealth to claim ownership.
To borrow an analogy used by our predecessor Court, “the appellants,
having opened the book on the subject, were not in a position to complain
when their adversaries sought to read other verses from the same chapter and
14 page.” Harris v. Thompson, 497 S.W.2d 422, 430 (Ky. 1973). It was within the
sound discretion of the trial court to allow Collins to testify in rebuttal. Gaskin
attempted to cast blame on an unidentified person who had threatened Carter’s
life shortly before she was killed. Collins came forward to identify himself and
explain the context of the threats. The threatening messages were clearly
unflattering to him and placed his own credibility and potential culpability into
question. There is nothing in the record to indicate Collins tailored his
testimony after listening to other witnesses. Although there had been a
technical violation of KRE 615 by Collins being present in the courtroom while
other witnesses were testifying, we cannot say the trial court abused its
substantial discretion in allowing his limited rebuttal testimony. See Pilon v.
Commonwealth, 544 S.W.2d 228, 231 (Ky. 1976). Gaskin has shown no
prejudice and is therefore entitled to no relief. Smith, 127 S.W.3d at 647.
C. Commonwealth’s closing argument did not constitute misconduct.
Next, Gaskin contends the Commonwealth engaged in prosecutorial
misconduct during closing argument. Specifically, he complains the
Commonwealth, in violation of the trial court’s explicit pretrial rulings, made
improper inferences regarding his exact location based on cell tower data
adduced at trial. He concedes this argument is unpreserved for appellate
review and requests palpable error review pursuant to RCr 6 10.26.
6 Kentucky Rules of Criminal Procedure.
15 Although not properly preserved, a palpable error “affects the substantial
rights of a party” and “relief may be granted upon a determination that
manifest injustice has resulted” from the error. RCr 10.26. A palpable error
must be “easily perceptible, plain, obvious and readily noticeable.” Brewer v.
Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006). To obtain a reversal based
on an alleged palpable error, a defendant must show the error was “shocking or
jurisprudentially intolerable.” Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky.
2006). “When an appellate court engages in a palpable error review, its focus is
on what happened and whether the defect is so manifest, fundamental and
unambiguous that it threatens the integrity of the judicial process.” Id. at 5.
Prosecutorial misconduct has been defined as an “improper or illegal act
. . . involving an attempt to . . . persuade the jury to wrongly convict a
defendant or assess an unjustified punishment.” Noakes v. Commonwealth,
354 S.W.3d 116, 121 (Ky. 2011) (citing Black’s Law Dictionary (9th ed. 2009)).
The misconduct can occur in a variety of forms, including improper closing
argument. Dickerson v. Commonwealth, 485 S.W.3d 310, 329 (Ky. 2016) (citing
Duncan v. Commonwealth, 322 S.W.3d 81, 87 (Ky. 2010)). Any allegation of
misconduct must be viewed in the context of the overall fairness of the trial.
Commonwealth v. McGorman, 489 S.W.3d 731, 742 (Ky. 2016). For reversal to
be justified, the prosecutorial misconduct must be “so serious as to render the
entire trial unfair.” Soto v. Commonwealth, 139 S.W.3d 827, 873 (Ky. 2004)
(quoting Stopher v. Commonwealth, 57 S.W.3d 787, 805 (Ky. 2001)).
16 “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 v. Commonwealth, 322 S.W.3d 81, 87 (Ky. 2010).
However, as occurred here, where the defendant raised no objection this Court
“will reverse only where the misconduct was flagrant and was such as to render
the trial fundamentally unfair.” Id. (citing Barnes v. Commonwealth, 91 S.W.3d
564 (Ky. 2002); Partin v. Commonwealth, 918 S.W.2d 219 (Ky. 1996)).
At a pretrial hearing, Gaskin raised concerns about his historical
cellphone location evidence and its use at trial. He asserted the recent decision
in Torrence v. Commonwealth, 603 S.W.3d 214 (Ky. 2020), operated to prohibit
a police officer from testifying about a cellphone’s specific location based solely
on historical cell tower data. Gaskin argued officers could plot the locations of
cell towers with which a phone was communicating but go no further. The trial
court agreed and stated its expectation the Commonwealth would stay within
the bounds of binding caselaw. In its ruling, the trial court noted it was the
province of the jury to draw inferences from any testimony regarding the
generalized and approximate location of Gaskin’s phone based on a ping to a
cell tower site. Officers could testify only to which tower his phone was
communicating at a particular time and the general location of the tower itself.
At trial, the trial court reminded the Commonwealth of its earlier ruling when
the historical cell tower data testimony began. The Commonwealth ensured
the testimony conformed to the trial court’s rulings. Exhibits provided to the
17 jury showed the dates and times Gaskin’s phone was communicating with a
tower and where the particular tower was located.
During closing arguments, the Commonwealth referenced the historical
cell tower location data testimony to show Gaskin’s movements before and after
the murders. Gaskin’s phone primarily connected with two towers during that
time period, one near a hotel where he had rented a room and the other near
the Alexandria Drive apartment complex. The Commonwealth referenced other
corroborating testimony and evidence to argue Gaskin was at the apartment
when the two murders occurred. In urging reversal, Gaskin now contends
these arguments went beyond the scope of the trial court’s explicit limitations
and the Commonwealth made improper inferences exceeding the bounds of
witness testimony and argued facts not in evidence as to his exact location. He
asserts this equated to prosecutorial misconduct. We disagree.
“[P]rosecutors are allowed wide latitude during closing arguments and
may comment upon the evidence presented.” Maxie v. Commonwealth, 82
S.W.3d 860, 866 (Ky. 2002) (citing Derossett v. Commonwealth, 867 S.W.2d
195 (Ky. 1993); Houston v. Commonwealth, 641 S.W.2d 42 (Ky. App. 1982)).
Such latitude is allowed during closing arguments because argument is not
evidence. Slaughter v. Commonwealth, 744 S.W.2d 407, 412 (Ky. 1987). As
previously stated, in the absence of a contemporaneous objection, we will only
reverse if flagrant misconduct rendered the entire trial fundamentally unfair.
Dickerson v. Commonwealth, 485 S.W.3d 310, 329 (Ky. 2016). To determine
whether improper comments amount to flagrant prosecutorial misconduct, we
18 must examine: “(1) whether the remarks tended to mislead the jury or to
prejudice the accused; (2) whether they were isolated or extensive; (3) whether
they were deliberately or accidentally placed before the jury; and (4) the
strength of the evidence against the accused.” Id. (quoting Mayo v.
Commonwealth, 322 S.W.3d 41, 56 (Ky. 2010)).
Upon review of the Commonwealth’s argument in full, we cannot
conclude it mischaracterized the evidence or otherwise misled the jury. The
Commonwealth reviewed the testimony regarding the cell tower location
testimony and the maps produced from the raw data. It further referenced
witness testimony which placed Gaskin at the apartment complex close in time
to the murders to show that each corroborated the other. The Commonwealth
then drew fair and reasonable inferences from all of the evidence to argue
Gaskin was present when Harris and Carter were killed. During the
Commonwealth’s nearly forty-minute-long summation, less than four minutes
was devoted to the cell tower location data and testimony. The three instances
Gaskin references which he asserts crossed the line were fleeting at best and
were certainly not extensive. Nor did the prosecutor specifically state the cell
tower location information alone placed Gaskin in the apartment as he claims.
The Commonwealth’s argument tracked the evidence and fell within the
bounds of reasonable inferences and comments on the evidence. No
prosecutorial misconduct occurred.
19 D. There was no cumulative error.
Finally, Gaskin urges this Court to reverse his convictions under the
cumulative error doctrine. We decline his invitation to do so.
The cumulative error doctrine provides that “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). “We have found cumulative error only where the
individual errors were themselves substantial, bordering, at least, on the
prejudicial.” Id. (citation omitted). In addition, “[w]here . . . 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. (citation omitted). A criminal defendant “is guaranteed a fair
trial[,]” but “[t]his does not mean, however, a perfect trial, free of any and all
errors.” McDonald v. Commonwealth, 554 S.W.2d 84, 86 (Ky. 1977). Having
concluded a singular error occurred related to one finding by the trial court in
its order denying Gaskin’s suppression motion, we are confident such error
lacked any prejudicial effect. “Although errors crept into this trial, as they
inevitably do in a trial . . . they did not, either individually or cumulatively,
render the trial unfair.” Brown, 313 S.W.3d at 631. Gaskin is not entitled to
the relief he seeks.
III. CONCLUSION
For the foregoing reasons, the judgment of conviction and sentence of the
Fayette Circuit Court is affirmed.
20 All sitting. All concur. Thompson, J., concurs with separate opinion in
which Conley, J., joins.
THOMPSON, J., CONCURRING: I write separately to emphasize that the
presentation of a single photograph to Heard to identify Gaskin as the man
who paid part of Harris’s fare on the night of the murders was unduly
suggestive, highly inappropriate, and violated police procedure. For more than
forty years, it has been established that presenting a witness with a single
photograph of a suspect for identification purposes is unduly prejudicial and
suggestive. Moore v. Commonwealth, 569 S.W.2d 150, 153 (Ky. 1978). Standard
police procedure dictates that a six-pack of similar photos be presented to the
witness. See Oakes v. Commonwealth, 320 S.W.3d 50, 57-58 (Ky. 2010)
(reviewing proper photo arrays). There is no reason that this standard
procedure could not have been followed in this case, where Heard was
interviewed by the police nearly a month after his initial report to police. The
Commonwealth is very fortunate that in this particular case there was
sufficient independent indicia of reliability to save Heard’s later in-court
identification of Gaskin and that, therefore, reversal of Gaskin’s criminal
conviction is not required based on this substantive misstep by the police.
Conley, J., joins.
21 COUNSEL FOR APPELLANT:
Jennifer Wade Assistant Public Advocate
COUNSEL FOR APPELLEE:
Russell M. Coleman Attorney General of Kentucky
Thomas A. Van De Rostyne Assistant Attorney General