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Supreme Court of Kentucky 2024-SC-0120-MR
CHAD BURTON APPELLANT
ON APPEAL FROM GREENUP CIRCUIT COURT V. HONORABLE BRIAN CHRISTOPHER MCCLOUD, JUDGE NO. 20-CR-00128
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A Greenup County jury convicted Chad Burton (“Burton”) of one count of
first-degree sodomy, two counts of first-degree sexual abuse, one count of use
of a minor in a sexual performance, and one count of third-degree unlawful
transaction with a minor. Burton was sentenced to twenty-four years of
imprisonment. 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 judgment of the Greenup Circuit Court.
BACKGROUND
On September 10, 2020, a Greenup County Grand Jury indicted Burton
on three counts of first-degree sodomy, one count each of use of a minor in a sexual performance, third-degree unlawful transaction with a minor, and being
a convicted felon in possession of a handgun. 1
This case was first tried in November 2022 but ended in a mistrial. A
second trial began on July 17, 2023, and the following facts were learned:
On May 27, 2020, the minor victims, M.T. 2 (13) and M.O. (15) were
spending the night with M.O.’s older sister. Earlier that day, M.T., M.O., and
their two friends, who were also minors, James 3 (17) and Matthew (13), met at
a creek near M.O.’s house to swim and hang out. M.O.’s little sister (age
unknown); her cousin, Daniel (10), and another young boy named Charles (8)
were there.
While the kids were playing and swimming, Burton, who lived in the
neighborhood and was 34 years old at the time, came by. M.T. and M.O. did
not know Burton, but James and Matthew introduced them.
Burton spent about twenty minutes with the kids. M.T. testified that
while she and Matthew were swimming, Burton told them they should get into
bed together and make videos of it. Burton also offered to take pictures of her
1 The circuit court severed the convicted felon in possession of a handgun
charge from the other charges, but the disposition of that charge is not included in the appellate record. 2 We use initials to protect the anonymity of child victims. Counts 1, 2, and 3 of
the indictment (the sexual offenses) refer only to M.T. Count 4 of the indictment (unlawful transaction with a minor) lists “two juvenile girls.” However, the jury was instructed only as to M.T. on all counts. Throughout the course of discovery and trial, both M.T. and M.O. were referred to as victims. 3 We use pseudonyms to protect the anonymity of all the other minor children.
2 and Matthew. The comments left M.T. feeling uneasy since Burton was a
“grown man.”
Later, Burton offered to buy the minors alcohol and let them choose what
type of alcohol they wanted. When Burton left to buy alcohol, M.T. and M.O.
went to M.O.’s mother’s house to shower. The group planned to meet back at a
nearby church parking lot to drink together. After showering, the two girls were
on their way back to M.O.’s older sister’s house when Burton drove by with
James, Matthew, Daniel, and Charles in his vehicle and picked the girls up.
Instead of heading to the church, Burton drove to his house. Burton said
he needed to get something, but once they were there, everyone started
drinking. Burton got out his handgun and let the boys shoot it outside. He also
offered bedrooms to James and M.O. and Matthew and M.T. While James and
M.O. were in the bedroom talking, Burton stuck his head in to talk to James
about M.O. and what they were doing. Burton also walked in on M.T. and
Matthew, telling them he was bored and wanted to join in. Then, the children
decided it was time to leave.
Matthew texted a relative who came to pick up him, James, and Charles.
The others planned to walk home, but as they were leaving, M.T. realized her
phone was missing. Burton suggested it might be in his bedroom. When the
girls went in to look for the phone, Burton followed them in, shut the door
behind him, and shoved M.T. into the door frame.
Burton made M.T. perform oral sex on him and M.O. at gunpoint. Burton
also performed oral sex on M.T.’s vagina and anus. After about ten minutes,
3 Daniel banged on the door and ran into the bedroom. Burton jumped up and
pushed Daniel out, slammed the door, and said, “We’re busy.” Burton then
pushed M.T. back down and put his mouth on her anus again.
Daniel burst through the door again and yelled, “You guys are getting
raped.” The girls jumped up and ran with Daniel. M.T. testified that Burton
chased them with his gun and threatened to kill them and hurt their family.
The three kids ran back to M.O.’s older sister’s house and ran into Matthew on
the way back. When they arrived at the house, they saw the older sister’s
neighbor standing in her driveway.
The neighbor testified that the kids were scared as they ran up. The girls
went into the older sister’s house. The older sister testified that the girls were
visibly drunk. Daniel told the older sister what happened, and the girls started
crying hysterically. The older sister took the girls to her mother’s house. When
they got there, Burton was in the driveway with a gun, so the sister drove off in
the other direction and called 911.
M.T. went to the hospital for injuries she sustained during the incident.
Her ribs were bruised when Burton pushed her into the doorframe. Burton also
bruised M.T.’s inner thigh when he held her down on his bed and her arm
when he grabbed her.
The jury found Burton guilty of one count of first-degree sodomy, two
counts of first-degree sexual abuse, one count of use of a minor in a sexual
performance, and one count of third-degree unlawful transaction with a minor.
4 The circuit court followed the jury’s recommendation and sentenced Burton to
twenty-four years in prison. This appeal followed.
ANALYSIS
On appeal, Burton argues: (1) the circuit court erred in failing to grant a
mistrial; (2) the circuit court palpably erred in allowing victim impact testimony
during the guilt phase of the trial; (3) the circuit court palpably erred in
allowing the Commonwealth to present evidence and comment on his
invocation of rights; (4) the Commonwealth engaged in prosecutorial
misconduct; and (5) cumulative error occurred.
I. The circuit court did not abuse its discretion in denying Burton’s motion for a mistrial.
First, Burton argues the circuit court erred in denying his motion for a
mistrial due to the prejudicial conduct of M.T. and a supporter in the
courtroom. We review the denial of a motion for a mistrial under the following
standard:
“It is well established that the decision to grant a mistrial is within the trial court’s discretion, and such a ruling will not be disturbed absent a showing of an abuse of that discretion.” Woodard v. Commonwealth, 147 S.W.3d 63, 68 (Ky. 2004). “The test for an abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Webb v. Commonwealth, 387 S.W.3d 319, 324 (Ky. 2012) (quoting Anderson v. Commonwealth, 231 S.W.3d 117, 119 (Ky. 2007)) (citing Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000)). Additionally, “a mistrial is an extreme remedy and should be resorted to only when there is a fundamental defect in the proceedings and there is a ‘manifest necessity for such an action.’” Woodard, 147 S.W.3d at 68 (emphasis added). The
5 cause of the need for a mistrial “must be of such character and magnitude that a litigant will be denied a fair and impartial trial and the prejudicial effect can be removed in no other way.” Id. (emphasis added).
Commonwealth v. Padgett, 563 S.W.3d 639, 645 (Ky. 2018).
During the trial, Burton first moved for a mistrial when the
Commonwealth called M.T. to the witness stand. M.T. was escorted to the
stand by three women. She was upset and audibly sobbing when she entered
the courtroom. Defense counsel moved for a mistrial, arguing M.T.’s sobbing
was prejudicial, but the circuit court denied the motion.
The circuit court excused M.T., so she could compose herself. M.T. was
still sobbing when she exited the courtroom. The court admonished the jury,
stating that the emotional display was not evidence and should be disregarded.
About thirty minutes later, during M.T.’s direct examination, defense
counsel objected to the foundation the Commonwealth laid for admitting some
pictures. Defense counsel said an audience member blurted out a response to
the Commonwealth’s question about who took the pictures that was probably
loud enough for the jury to hear. Though the comment was not audible on the
video record, the circuit court appeared to acknowledge it. Defense counsel
renewed his motion for a mistrial, but the circuit court denied it because the
identity of the photographer was inconsequential.
A few minutes later, the circuit court spontaneously addressed the
audience member for her outbursts. A woman in the audience was shaking her
head and making comments, and the court told her to stop or she would be
removed from the courtroom. Defense counsel approached the bench and 6 asked the court to exclude the woman from the courtroom. The court said it
had addressed the problem and then admonished the jury sua sponte. The
circuit court instructed the jury to disregard the outburst, stating it was not
evidence and should not be considered during deliberation.
In Coulthard, which established the admonition for the rule on emotional
outbursts, there were multiple emotional outbursts by multiple family
members. Coulthard v. Commonwealth, 230 S.W.3d 572, 576-77 (Ky. 2007).
“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.” Id. at 577; Saxton v. Commonwealth, 671 S.W.3d 1, 15 (Ky.
2022). Admonishing the jury is the appropriate remedy because:
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 matters that cannot be anticipated and cannot be prevented by denying such persons the right to be present in the courtroom during the trial.
Coulthard 230 S.W.3d at 577-78.
Here, defense counsel moved for a mistrial two times during M.T.’s direct
examination—once for M.T.’s emotional outbursts and once for outbursts from
an audience member. Despite acknowledging on appeal that admonishment is
the appropriate remedy for emotional outbursts, Burton never asked the circuit
court for an admonition. However, the circuit court admonished the jury each
7 time and instructed M.T. and the audience member to compose themselves
following the outbursts. Burton argues the court’s admonitions were
insufficient.
Burton makes no specific argument regarding how the circuit court’s
admonitions were insufficient to cure any prejudice that might have resulted
from the outbursts. He complains that M.T. had repeated emotional outbursts
during her testimony, but he cites no case law in support of this argument
because there is none.
Granting a mistrial is only appropriate when prejudice can be removed
no other way. It is well-established that an admonition is more than sufficient
to cure potential prejudice resulting from an outburst. The circuit court
admonished the jury for M.T.’s and the audience member’s outbursts, even
though Burton never requested one.
Burton also speculates that the audience member’s outbursts amounted
to gesturing or signaling to M.T. during her testimony. The circuit court
addressed the audience member sua sponte for shaking her head and making
comments aloud. When counsel approached the bench moments later, defense
counsel merely asked for the woman to be removed from the courtroom and
made no argument about whether the woman signaled or gestured to M.T.
Even though defense counsel did not request an admonition, the circuit court
admonished the jury again. This argument is unpreserved, and Burton does
not request palpable error review for this argument. Burton attempts to
“violat[e] our long-standing prohibition against presenting a new theory of error
8 at the appellate level—the overwrought but irresistibly descriptive prohibition
against feeding a different can of worms.” Henderson v. Commonwealth, 438
S.W.3d 335, 343 (Ky. 2014).
Preservation issues aside, the circuit court did not err in declining to
grant a mistrial for the audience member’s conduct. Burton relies on Sharp v.
Commonwealth, 849 S.W.2d 542 (Ky. 1993) in support of this argument. In
Sharp, it was undisputed that a family friend in the audience gestured to a
child witness to tell “the child whether to answer yes or no to the questions
asked and whether she approved of the child’s answers.” Id. at 546. The family
friend also “communicated the substance of some testimony from the
courtroom to one or more separated witnesses.” Id. at 547. The circuit court
denied the defendant’s motion for a mistrial, but this Court held the circuit
court abused its discretion and reversed the judgment. Id. at 547-48.
Conversely, in Graham v. Commonwealth, 571 S.W.3d 575 (Ky. 2019),
this Court held that although the child victim on the stand was a crucial
witness in the Commonwealth’s case, a mistrial was not warranted. Id. at 583-
84. Unlike Sharp, “there [was] no assertion here that any improper gestures
occurred while [the child] was on the witness stand.” Id. at 583. In Graham, the
witness “was on his way out of the courtroom during a recess when a
bystander made a single gesture—a thumbs up.” Id. This Court noted, “[t]he
facts of Sharp were extreme.” Id.
“Such an interaction, if in sight of the jury, is unacceptable, as it may
boost the credibility of the witness in the eyes of the jury. However, in the
9 present case, the jury was not polled even to determine if they had viewed the
gesture.” Id. at 584. In Graham, the appellant rejected an offered admonition.
Id.
Here, there was no request for a jury poll. This argument was not raised,
and Burton did not request or reject an admonition. Defense counsel did not
renew its motion for a mistrial after the circuit court addressed the woman for
shaking her head and making comments aloud. Instead, counsel asked for the
woman to be excluded from the courtroom. Despite failing to request an
admonition, the circuit court, in its sound discretion, admonished the jury to
cure any prejudice. A mistrial was unwarranted because the circuit court gave
an admonition to cure any prejudice. Thus, the circuit court did not abuse its
discretion in failing to grant a mistrial due to alleged improper gesturing.
II. The circuit court did not palpably err in allowing victim impact testimony on direct examination because the victim’s credibility was at issue.
Second, Burton argues the circuit court palpably erred in allowing M.T.
and M.O. to give victim impact testimony during the guilt phase of the trial.
Burton concedes this error is unpreserved and requests palpable error review
under RCr 4 10.26.
To establish palpable error, Appellant must show “the probability of a different result or error so fundamental as to threaten his entitlement to due process of law.” Brooks v. Commonwealth, 217 S.W.3d 219, 225 (Ky. 2007) (citation omitted). On appellate review, our focus is on whether “the defect is so manifest, fundamental
4 Kentucky Rules of Criminal Procedure.
10 and unambiguous that it threatens the integrity of the judicial process.” Martin v. Commonwealth, 207 S.W.3d 1, 5 (Ky. 2006).
Huddleston v. Commonwealth, 542 S.W.3d 237, 245 (Ky. 2018).
Burton’s defense was that M.O. and M.T. were lying. Defense counsel put
their credibility at issue in his opening statement when he told the jury the
victims and witnesses, who were all minors that had been out late drinking,
made up a cover story to avoid getting in trouble.
During M.O.’s direct examination, the Commonwealth asked her about
how Burton’s abuse affected her. M.O. testified that she was on a high dosage
of anxiety and depression medications, had PTSD 5, and went to therapy. She
testified that she was homeschooled for two years, missed two years of high
school, and was homebound because she could not handle being around a lot
of people. M.O. said she had panic attacks, had had issues keeping a job, and
had not had a boyfriend or many friends.
M.T. also testified about how the assault affected her. She said she could
not go to school, see her friends, go out in public places, or talk to her dad.
M.T. testified that she could not go to school because she shuts down around
men she does not know. She said she could not go anywhere because she was
afraid grown men would look at her.
Burton argues that permitting this testimony was reversible error under
Alderson v. Commonwealth, 670 S.W.3d 884 (Ky. 2023). In Alderson, the
5 Post Traumatic Stress Disorder.
11 Commonwealth elicited similar testimony from the minor victims when it asked
how the sexual assaults affected them. Id. at 891. Alderson objected and
argued it sounded like the Commonwealth “was soliciting victim impact
evidence that was not appropriate at [that] stage of the proceedings.” Id. The
Commonwealth argued the testimony went to the victim’s credibility because
defense counsel questioned the victim’s credibility during his opening
statement. Id. The victims’ testimony in Alderson was similar to M.O.’s and
M.T.’s. Id.
This Court applied three intersecting rules: “(1) victim-impact evidence is
typically inadmissible until the penalty phase of the trial; (2) victim background
evidence is generally admissible; and (3) a witness can generally bolster her
own testimony after her credibility has been attacked.” Id. at 893. This Court
held the victim’s testimony “by its very nature it constitutes victim impact
testimony because it established the terrible consequences of the defendant's
actions on her life going forward and was likely to arouse the jurors’
sympathy.” Id. at 893-94.
Then, this Court considered “whether this question was nevertheless
appropriate to bolster [the victim’s] credibility because, as the Commonwealth
argued, Alderson attacked her credibility during his opening statement on the
basis that this case was a ‘she said, he said’ type of case.” Id. at 894. There, the
appellant preserved the issue, and this Court held, “[v]ictim impact testimony
is not appropriate for bolstering credibility. Instead, another method of
bolstering credibility could have been used.” Id.
12 Because Burton failed to preserve this argument, we turn to Tackett v.
Commonwealth, 445 S.W.3d 20 (Ky. 2014) for our analysis. In Tackett, the
defendant argued the victims “gave victim impact testimony during the guilt
phase of the trial.” Id. at 33. Tackett argued the following amounted to
impermissible victim impact testimony: that the female victim had “an
extremely sensitive gag reflex, making medical examinations, brushing her
teeth, and sometimes even eating, difficult; that the examination at Hope's
Place was unpleasant and embarrassing; and that she had been seeing a
psychiatrist during the preceding year.” Id. Tackett also contested the male
victim’s “testimony that the examination at Hope's Place was unpleasant.” Id.
There, this Court determined that the female victim’s “testimony was
relevant to show that she was not fabricating the allegations.” Id. This Court
also determined the male victim’s “testimony about the nature of the Hope's
Place examination contained elements of both victim impact and credibility
evidence and was admissible for that later purpose.” Id. at 34. This Court held
that Tackett failed to show how “the result would have been different” without
this evidence, so there was no palpable error. Id. The Alderson opinion noted
that under the circumstances in Tackett, “it would have been very difficult for
any defendant to establish manifest injustice or a different result at trial in the
absence of this evidence.” Alderson, 670 S.W.3d at 894.
M.O. and M.T.’s testimony was relevant to demonstrate their credibility,
even though it also contained elements of victim impact testimony. Though
Burton argues this evidence was highly prejudicial, he fails to establish “that
13 admitting the evidence caused a manifest injustice or that, absent this
evidence, the result would probably have been different.” Tackett, 445 S.W.3d.
at 33. Thus, we discern no palpable error.
III. The circuit court did not palpably err in allowing the Commonwealth to present evidence and comment on his invocation of rights.
Third, Burton argues the circuit court erred in allowing the
Commonwealth to present evidence about the invocation of his right to an
attorney 6 and commenting on the same during its closing argument. Burton
concedes this argument is unpreserved and requests palpable error review.
During the Commonwealth’s case-in-chief, Trooper Jones testified about
his investigation. Trooper Jones had some difficulty locating Burton. About
three weeks after the alleged incident occurred, Trooper Jones found Burton in
the parking lot of his workplace while Burton was on a break. The trooper
introduced himself and asked Burton if he would talk to him. Burton
responded that he did not mind and asked Trooper Jones for a ride to the
Greenup County courthouse. The trooper gave him a ride to the courthouse.
At the courthouse, Trooper Jones told Burton the interview was
noncustodial, and Burton did not have to speak to him, could leave at any time
or get a ride back to work, and was not under arrest. The trooper also talked to
Burton about telling the truth and told Burton it would be better to end the
interview than lie. About fifteen minutes into the interview, Trooper Jones and
6 During Trooper Charles Jones’ testimony, the Commonwealth played Burton’s
entire interview, which contained Burton’s invocation of his right to counsel.
14 Burton discussed the events of the day, including their visit to the creek and
the children's visit to his house. When Trooper Jones asked for more
information about when the kids came to his house, Burton said, “I probably
better get a lawyer.” The trooper asked whether Burton wanted to speak to him
anymore, and Burton said no. Trooper Jones immediately terminated the
interview.
“The Commonwealth is prohibited from introducing evidence or
commenting in any manner on a defendant’s silence once that defendant has
been informed of his rights and taken into custody.” Ordway v. Commonwealth,
391 S.W.3d 762, 777 (Ky. 2013). However, the fact of a “pre-arrest, pre-
Miranda warning invocation of rights by a suspect” is only “inadmissible in the
Commonwealth’s case-in-chief if official compulsion was present in extracting
the invocation.” Spears v. Commonwealth, 448 S.W.3d 781, 786 (Ky. 2014)
(citing Baumia v. Commonwealth, 402 S.W.3d 530, 538 (Ky. 2013)).
Burton’s silence was briefly mentioned again during Trooper Jones’s
cross-examination. Defense counsel asked Trooper Jones about the interview.
The trooper responded that he tried to get Burton’s side of the story, but
Burton did not want to speak to him.
Additionally, the Commonwealth commented on Burton’s silence during
its closing argument. The Commonwealth reviewed the evidence and argued
that Burton continually lied to the police because he did not want to get
caught. The Commonwealth then argued that Burton stopped the interview
because he could not talk his way out of it.
15 “While the fact of Appellant’s refusal is fully admissible at trial . . . the
Commonwealth sought, and the trial court allowed the introduction of
Appellant’s entire statement.” Baumia, 402 S.W.3d at 539. In Baumia, this
Court determined “[t]he phrasing and language employed by Appellant in
refusing the breathalyzer test was not indicative of guilt and was both
irrelevant and unduly prejudicial[,]” so the circuit court abused its discretion in
allowing the Commonwealth to introduce the entire statement. Id.
There was no official compulsion present when Burton invoked his right
to counsel. Burton asked Trooper Jones for a ride to the courthouse. At the
beginning of the interview, Burton agreed that the interview was voluntary and
noncustodial. Trooper Jones informed Burton he was free to terminate the
interview and leave at any time. Burton continued with the interview until
Trooper Jones asked Burton what occurred when the kids visited his house.
The fact of Burton’s invocation was admissible, but allowing the phrasing and
language of the invocation would likely have been an abuse of discretion had
this issue been preserved.
Because Burton’s argument is unpreserved, we examine whether the
circuit court palpably erred in allowing the Commonwealth to play the video
recording of Burton’s full statement during Trooper Jones’ testimony and
commenting on the same during its closing argument. Burton is required to
show the “probability of a different result or error so fundamental as to
threaten [his] entitlement to due process of law.” Martin, 207 S.W.3d at 3. In
Baumia, the Commonwealth played the appellant’s entire statement invoking
16 his right to counsel, but no other comments were made during “closing
argument, or elsewhere.” Baumia, 402 S.W.3d at 540. The evidence in Baumia
was also extensive and included the appellant’s blood alcohol level, accident
reconstruction, and autopsy results. Id. at 540-41.
Here, the Commonwealth made one brief comment regarding Burton’s
silence during the closing argument, and defense counsel elicited one
statement from Trooper Jones about Burton’s silence during cross-
examination. Though Burton’s silence was mentioned three times, the
Commonwealth did not belabor the point to infer guilt. Each instance was brief
in the context of the three-day trial. Additionally, the testimony against Burton
was strong. M.O. and M.T. gave detailed testimony about Burton sexually
abusing them at gunpoint. Daniel testified to his observations about what he
saw when he entered the room where Burton held the girls. The older sister
and neighbor testified about the state the children were in when they arrived at
the sister’s house.
Burton’s argument failed to demonstrate how the result would have been
different without it or that his trial was manifestly unjust. Thus, there was no
palpable error.
17 IV. There was no prosecutorial misconduct.
Burton argues the Commonwealth eliciting victim impact testimony from
M.T. and M.O during the guilt phase was prosecutorial misconduct. He
concedes this argument is unpreserved and requests palpable error review.
“Because this issue is unpreserved, we will reverse only if the conduct was both
flagrant and constitutes palpable error resulting in manifest injustice.” Barrett
v. Commonwealth, 677 S.W.3d 326, 333 (Ky. 2023) (citing RCr 10.26; Matheney
v. Commonwealth, 191 S.W.3d 599, 606, 607 n.4 (Ky. 2006)). This Court
weighs the following four factors in determining whether the Commonwealth’s
conduct was flagrant:
(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. [Brafman v. Commonwealth, 612 S.W.3d 850, 861 (Ky. 2020)] (footnotes omitted). We look at the claimed error in context to determine whether, as a whole, the trial was rendered fundamentally unfair. Id. (footnote omitted).
Barrett, 677 S.W.3d at 334.
Burton argues the Commonwealth engaged in prosecutorial misconduct
in: (1) eliciting victim impact testimony from M.O. and M.T., and (2) introducing
testimony about Burton’s silence and commenting on it during the closing
argument. The Commonwealth argues this is a repackaging of Burton’s
arguments about victim impact testimony and invocation of his rights. We
agree that Burton’s claim “is, at best, an attempt to repackage an evidentiary
claim as prosecutorial misconduct.” St. Clair v. Commonwealth, 451 S.W.3d
18 597, 641 (Ky. 2014). “[U]npreserved claims of error cannot be resuscitated by
labeling them cumulatively as ‘prosecutorial misconduct.’” Noakes v.
Commonwealth, 354 S.W.3d 116, 122 (Ky. 2011).
First, the Commonwealth did not attempt to mislead the jury about the
facts of the case. The victim impact testimony was more probative than
prejudicial because it was relevant to prove the victims did not fabricate the
allegations against Burton. Playing the entire video where Burton invoked his
rights to silence and counsel may have been somewhat prejudicial and perhaps
an abuse of discretion had Burton objected and the trial court overruled his
objection, but he did not object. Thus, the error was not preserved. We hold it
was not palpable.
Second, the remarks about the victim’s quality of life after the incident
and Burton’s silence were isolated in the context of the entire trial. In its
closing argument, the Commonwealth argued that the victim impact testimony
bolstered M.T. and M.O.’s credibility. The Commonwealth argued they gave the
same account three times and discussed the girls’ trauma in conjunction with
their credibility.
Third, the Commonwealth admits that the remarks about Burton’s
silence and the testimony obtained from the victims were deliberate. Finally,
the other evidence against Burton was compelling. M.O. and M.T.’s testimonies
were consistent and detailed. Daniel also provided eyewitness testimony about
what he observed, and M.O.’s older sister’s neighbor testified about seeing the
girls immediately after the incident. Although two of the factors favor Burton,
19 overall, the trial was not fundamentally unfair. This is supported by the fact
that Burton recharacterized evidentiary issues as prosecutorial misconduct.
Therefore, the Commonwealth’s comments during the closing argument did not
constitute flagrant misconduct.
V. There was no cumulative error.
Finally, Burton argues his conviction should be reversed because of
cumulative error. Cumulative error is the “doctrine under which 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). This Court has “found
cumulative error only where the individual errors were themselves substantial,
bordering, at least, on the prejudicial.” Id. None of the issues Burton raised
rendered his trial fundamentally unfair. Thus, there was no cumulative error
that affected the fairness of Burton’s trial.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the Greenup Circuit
Court.
Lambert, C.J.; Bisig, Goodwine, Keller, Nickell, and Thompson, JJ.,
sitting. All concur. Conley, J., not sitting.
20 COUNSEL FOR APPELLANT:
Sarah D. Dailey Assistant Public Advocate
COUNSEL FOR APPELLEE:
Russell M. Coleman Attorney General of Kentucky
Jenny L. Sanders Assistant Attorney General