IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: FEBRUARY 14, 2019 NOT TO BE PUBLISHED
2017-SC-000554-MR
CHESTER KEITH COOGLE APPELLANT
ON APPEAL FROM HARDIN CIRCUIT COURT V. HONORABLE KELLY M. EASTON, JUDGE NO. 17-CR-00246
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A Hardin Circuit jury convicted Chester Keith Coogle of third-degree
assault, first-degree fleeing or evading, first-degree possession of a controlled
substance, and use or possession of drug paraphernalia. The jury also found
Coogle guilty of being a persistent felony offender (“PFO”) in the second degree.
The jury recommended an enhanced sentence of ten years on third-degree
assault and first-degree fleeing or evading, along with sentences of three years
on possession of a controlled substance and twelve months on possession or
use of drug paraphernalia. The court ordered both ten-year sentences to run
consecutively for a total sentence of twenty years to serve. Coogle was
sentenced accordingly and he now appeals his conviction as a matter of right. I. BACKGROUND
Sergeant Taylor Miller, with the Hardin County Sheriffs Office, was on
patrol the evening of March 21, 2017 in a rural area of Hardin County near a
small cemetery. Sgt. Miller saw two vehicles pull onto the road leading into the
cemetery; they pulled up to the top of the road, in a small loop that leads back
around so vehicles can leave on the same road leading into the cemetery. The
vehicles then turned their headlights off. The cemetery was not lit and was
fairly secluded and quiet. Sgt. Miller pulled into the same road and, before
reaching the loop, stopped and turned on his emergency lights. Sgt. Miller
noticed that one of the vehicles was fairly beaten up with a broken windshield.
One of the drivers made a motion with his hand out the window to wave Sgt.
Miller out of the way. Sgt. Miller did not move, however. The driver then
floored his vehicle and drove around Sgt. Miller, back onto the main road,
going up onto the grassy area to get around Sgt. Miller’s vehicle. Sgt. Miller
initiated a pursuit of the vehicle that had fled; he saw the driver as he passed
and identified him later as the defendant, Coogle. Sgt. Miller activated his
lights and sirens as he pursued Coogle’s vehicle.
Coogle led Sgt. Miller down a path of country roads. The speed limit was
35 to 45 miles per hour; the road was sometimes curvy. Sgt. Miller estimated
Coogle to be driving at 55 to 70 miles per hour during the pursuit. Coogle
turned off the road into a property with a barn. Sgt. Miller knew there was no
exit in the back of the property, so he stayed in front of the barn on the
roadway as Coogle drove around from behind the barn. Sgt. Miller stated there
2 was a security light near the barn, so the area was more well-lit than the other
areas during the pursuit. Sgt. Miller turned his vehicle around and watched as
Coogle reemerged from behind the barn.
Coogle paused for a moment in the driveway. Sgt. Miller got out of his
vehicle, drew his weapon, and yelled at Coogle to stop while making stopping
gestures with his hand. Coogle paused and then turned his car towards Sgt.
Miller and slammed on the gas, revving straight towards Sgt. Miller. Sgt. Miller
ran for cover behind his vehicle; Coogle drove by closely. Sgt. Miller testified
Coogle was close enough to his vehicle that he would not have been able to fit
between the two vehicles. Coogle drove off down the road. Sgt. Miller
discharged his gun at the retreating vehicle, worried that Coogle would turn
around and attempt to drive over him again. After getting back into his vehicle,
Sgt. Miller attempted to relocate Coogle but did not see his vehicle again at that
time.
Eventually, officers, including Sgt. Miller, found the vehicle further away
where Coogle had crashed into a tree on the side of the road. Officers searched
the vehicle and found a couple of glass pipes, one of which had residue later
identified as methamphetamine, a cut straw, and other small baggies. There
was also a bullet hole in the trunk of the vehicle and the bullet was found
inside the trunk of the car, identified as the bullet discharged by Sgt. Miller.
Sgt. Miller also later discovered that Coogle had an active warrant for his arrest
at the time of this incident and the ensuing pursuit, presumably leading to his
flight after Sgt. Miller first approached his vehicle.
3 II. ANALYSIS
A. Double Jeopardy
Coogle was indicted on several charges. The jury was presented with
instructions on the following crimes: (1) attempted murder with lesser included
offenses of: attempted first-degree assault; third-degree assault; first-degree
wanton endangerment; and second-degree wanton endangerment; (2) first-
degree fleeing or evading with a lesser included offense of second-degree fleeing
or evading; (3) first-degree possession of a controlled substance; and (4) use or
possession of drug paraphernalia. Based on the instructions, the jury found
Coogle guilty of: (1) third-degree assault; (2) first-degree fleeing or evading; (3)
first-degree possession of a controlled substance; and (4) use or possession of
drug paraphernalia. Coogle now alleges that, by instructing the jury on both
third-degree assault and first-degree fleeing or evading, the trial court violated
the constitutional proscription against double jeopardy.
Under Kentucky Revised Statute (KRS) 508.025:
(1) A person is guilty of assault in the third degree when the actor: a) Recklessly, with a deadly weapon or dangerous instrument, or intentionally causes or attempts to cause physical injury to: 1. A state, county, city, or federal peace officer; ...
The jury instruction on third-degree assault allowed the jury to find guilt on
that charge if:
A. That on [szc] this county on or about March 21, 2017, and before the finding of the Indictment herein, he attempted to cause physical injury to Sergeant Taylor Miller by driving his motor vehicle at him; AND B. That Sergeant Taylor Miller was a police officer acting in his course of his official duties and the Defendant knew that he was acting in the course of said official duties. 4 KRS 520.095 states that:
(1) A person is guilty of fleeing or evading police in the first degree: a) When, while operating a motor vehicle with intent to elude or flee, the person knowingly or wantonly disobeys a direction to stop his or her motor vehicle, given by a person recognized to be a police officer, and ... 4. By fleeing or eluding, the person is the cause, or creates substantial risk, of serious physical injury or death to any person or property ...
The instruction to the jury stated that Coogle could be found guilty of fleeing or
evading, first degree, if the jury determined beyond a reasonable doubt:
A. That in this county on or about March 21, 2017, and before the finding of the Indictment herein, he operated a motor vehicle with the intent to flee or elude; AND B. That he knowingly or wantonly disobeyed a direction to stop his motor vehicle, which direction was given by a person whom he recognized to be a police officer; AND C. That his act of fleeing or eluding caused or created a substantial risk of serious physical injury or death to any person or serious injury to property.
Coogle argues that his constitutional right1 to be free of double jeopardy was
violated because the convictions required two conflicting states of mind.
Coogle concedes this issue is unpreserved and requests palpable error review
under Rule of Criminal Procedure (RCr) 10.26. “To establish palpable error,
[Coogle] must show ‘the probability of a different result or error so fundamental
1 See Ky. Const. § 13 (“No person shall, for the same offense, be twice put in jeopardy of his life or limb, nor shall any man's property be taken or applied to public use without the consent of his representatives, and without just compensation being previously made to him.”) and U.S. Const, amend. V (“No person shall be subject for the same offence to be twice put in jeopardy of life or limb[.]”).
5 as to threaten his entitlement to due process of law.’” Huddleston v.
Commonwealth, 542 S.W.3d 237, 245 (Ky. 2018) (quoting Brooks v.
Commonwealth, 217 S.W.3d 219, 225 (Ky. 2007) (citation omitted)). Appellate
reviews focus “on whether ‘the defect is so manifest, fundamental and
unambiguous that it threatens the integrity of the judicial process.’”
Huddleston, 542 S.W.3d at 245 (quoting Martin v. Commonwealth, 207 S.W.3d
1, 5 (Ky. 2006)).
Inconsistent Findings of Fact
Coogle alleges that his convictions for both third-degree assault and first-
degree fleeing or evading violate the double jeopardy ban codified in KRS
505.020(l)(b). The statute states that a defendant cannot be convicted of two
offenses if “[i]nconsistent findings of fact are required to establish the
commission of the offenses[.]” The gist of Coogle’s argument is that, under the
instructions, the jury could have convicted Coogle of first-degree fleeing or
evading under the theory that he “wantonly” created a risk of injury while also
convicting him of third-degree assault under the theory that he “intentionally”
attempted to injure Sgt. Miller. Coogle argues that finding he acted both
wantonly and intentionally violates KRS 505.020(l)(b).
In Spicer v. Commonwealth, we determined that the defendant’s
convictions for both attempted murder and first-degree assault violated this
statutory, and constitutional, restraint. 442 S.W.3d 26, 30-31 (Ky. 2014).
“[T]o convict a defendant of attempted murder, the jury must find that [the
defendant] specifically intended during the attack to kill the victim. ... On the
6 other hand, and quite inconsistently, for the jury to convict the same defendant
of first-degree assault for engaging in the same course of conduct, it must
determine that his specific intent was not to kill, but merely to cause serious
physical injury to the victim.” Id. at 30 (quoting Kiper v. Commonwealth, 399
S.W.3d 736, 744-45 (Ky. 2012)). “These inconsistent and mutually exclusive
findings of fact regarding [the defendant’s] mens rea at the moment he fired the
shots at [the victim] lead precisely to the same result that KRS 505.020(l)(b)
prohibits.” Spicer, 442 S.W.3d at 31 (quoting Kiper, 399 S.W.3d at 744-45).
In Montgomery v. Commonwealth, the Court of Appeals was faced with a
similar question. 505 S.W.3d 274, 279-80 (Ky. App. 2016). In that case, there
was an altercation between Montgomery and a police officer and Montgomery
charged at the police officer with a baseball bat. Id. at 277. Montgomery was
convicted of both second-degree wanton endangerment and third-degree
assault based on this incident. Id. at 279. The Court of Appeals determined
that:
The jury could have found Montgomery’s charge against [the officer] was intentional, resulting in assault, or it was wanton, resulting in wanton endangerment. Allowing both convictions, however, requires the jury to make inconsistent findings—that Montgomery was motivated by two different mental states for the same act against the same person.
Id. at 279-80.
The heart of Coogle’s argument is that he could not have both wantonly
and intentionally created a risk of injury to Sgt. Miller. However, he misreads
the statute on first-degree fleeing or evading. The “knowingly or wantonly”
7 element refers to disobeying a police officer’s directive. The statute states: “the
person knowingly or wantonly disobeys a direction to stop his or her motor
vehicle” and then lists several conditions, only one of which must be met to
substantiate a first-degree fleeing or evading conviction. One of these
conditions is that “the person is the cause, or creates substantial risk, of
serious physical injury or death to any person or property[.]” This particular
condition has no “wanton” element. Thus, there is a fatal flaw in Coogle’s
argument here. The instructions did not require that the risk of injury was
both wanton and intentional. Instead, it allowed a conviction if Coogle
wantonly disobeyed a direction from the police officer (first-degree fleeing or
evading) but then also intentionally attempted to cause that same officer injury
(third-degree assault).
In both Spicer and Montgomery, the juries found two mental states in the
same actions by the defendant. In Spicer, the jury made findings that the
defendant acted with intent to kill and with intent to only injure in the same
attack. In Montgomery, the jury’s findings resulted in the defendant having
acted both wantonly and intentionally in attacking the police officer with a
baseball bat. However, here, the wanton and intentional conduct were
separate acts. Thus, the two mental states here were not referring to the same
action. Even under the instruction, the jury could have determined Coogle
wantonly disobeyed directives from Sgt. Miller but then intentionally attempted
to cause Sgt. Miller injury. As such, inconsistent findings were not required for
8 both of Coogle’s convictions. Coogle’s right to be free of double jeopardy was
not violated here.
B. Unanimity
Coogle also argues that the jury instructions were erroneous and led to a
non-unanimous verdict. Coogle argues that the Commonwealth’s evidence
proved two separate acts that could have been the basis for the fleeing or
evading substantial risk element. First, Sgt. Miller provided testimony of the
risk to his own life as Coogle fled the scene. Second, Sgt. Miller also testified
that he witnessed Coogle almost running another vehicle off the road during
the pursuit. Coogle states that because the Commonwealth’s proof
substantiated the conviction in two ways, but the jury instructions failed to
specify the act, his right to a unanimous verdict was violated. Again, Coogle
failed to preserve this error and requests palpable error review.
The actual instruction in question allowed the jury to convict if it
determined that “[Coogle’s] act of fleeing or eluding caused or created a
substantial risk of serious physical injury or death to any person or serious
injury to property.” Coogle argues that this instruction led to the same kind of
unanimity error that this Court described in Martin v. Commonwealth, 456
S.W.3d 1, 6 (Ky. 2015). A unanimity error “occurs when a jury instruction may
be satisfied by multiple criminal acts by the defendant.” Brown v.
Commonwealth, 553 S.W.3d 826, 838 (Ky. 2018) (quoting Martin, 456 S.W.3d
at 7).
9 However, when an instruction allows conviction under multiple theories,
this is not necessarily the same kind of unanimity error as described in Martin.
The Commonwealth argues that evidence at Coogle’s trial proved several
instances showing that Coogle created a serious risk of injury or death to other
people, establishing multiple theories or means of committing the crime of
fleeing or evading, first degree.
[A] ... jury need not always decide unanimously which of several possible sets of underlying brute facts make up a particular element, say, which of several possible means the defendant used to commit an element of the crime ... But ... a disagreement about means ... would not matter so long as all 12 jurors unanimously concluded that the Government had proved the necessary related element[.]
Brown, 553 S.W.3d at 839 (quoting Richardson v. United States, 526 U.S. 813,
817-18 (1999)). Thus, if a jury could disagree on the “means” as opposed to an
element of the crime, there is no unanimity violation.
In Brown, the Court determined the instruction allowing the jury to
determine Brown had committed theft by stealing “money or jewelry or car” was
not a unanimity error. Brown, 553 S.W.3d at 840. “The jury instructions
forced the jury to unanimous agreement on the fact that movable property was
taken, simply identifying three pieces of movable property that the jury could
have found to be taken.” Id. The jury agreed on the element of the crime: that
movable property was taken. Id. Hence, no unanimity error occurred. Id.
In Dunlap v. Commonwealth, the Court examined “instructions [that]
permit the juiy to find aggravating circumstances based upon arson, burglary,
or rape for the murder, and arson, burglary, rape, or murder for the
10 kidnapping charges, but it is unclear from the verdict forms whether the jury
unanimously based its verdict upon the same aggravator or aggravators.” 435
S.W.3d 537, 608 (Ky. 2013). The Court contrasted “jury instructions regarding
multiple instances of the same crime” and “multiple theories, all of which
support a conviction for the same offense and are therefore punishable by the
same penalties.” Id. at 609 (citations omitted). The Court held that the
different possible aggravators were “all different ‘theories’ that support a
conviction of the same ‘offense,’ i.e., the aggravating circumstance.” Id. This
Court has previously emphasized that “a ‘conviction of the same offense under
either of two alternative theories does not deprive a defendant of his right to a
unanimous verdict if there is evidence to support a conviction under either
theory.’” Shively v. Commonwealth, 542 S.W.3d 255, 264 (Ky. 2018) (quoting
Conrad v. Commonwealth, 534 S.W.3d 779, 784 (Ky. 2017) (quoting Miller v.
Commonwealth, 77 S.W.3d 566, 574 (Ky. 2002))).
Here, the jury was permitted to determine within a series of incidents
and events whether that conduct constituted a substantial risk of serious
physical injury or death to any other person. The specific incidents listed by
both Coogle and the Commonwealth are all “brute facts” and ways of
establishing the means of committing the crime. The Commonwealth
presented evidence of several acts that would qualify as being sufficient to
create a substantial risk of danger: nearly running another person off the road,
attempting to run over Sgt. Miller, driving at high speeds when there were other
cars present on a curvy road, etc. All of these specific acts are means of
11 committing the crime. The element itself—the substantial risk—was
unanimously determined to be present. As such, no unanimity violation
occurred.
C. Admissibility of Drone Video
Coogle next alleges error in the trial court’s admitting a video showing
the barn area where Sgt. Miller testified Coogle drove at him. The video was
created after the crime occurred. Sgt. Miller returned to the scene with an
aerial drone and recorded the route Coogle took around the barn, from Sgt.
Miller’s observation, that evening. The recording took place during the day, at
various heights to see the scene in full. Coogle argued the video was
inadmissible because it was (1) irrelevant; (2) unduly prejudicial; and (3) not
substantially similar to the actual incident that took place with Coogle. “As
with other types of evidence, the admissibility of experiment evidence is
discretionary; the trial court’s ruling will be disturbed on appeal only if that
discretion is abused.” Rankin v. Commonwealth, 327 S.W.3d 492, 499 (Ky.
2010) (citing Cecil v. Commonwealth, 297 S.W.3d 12, 20 (Ky. 2009) (citing
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999))).
The parties discussed the admissibility of the drone video before opening
statements on the first day of trial.2 Defense counsel objected, stating the
footage was not an adequate representation of the events the night of the
incident. She argued that there were “lush greens” and “lush lawns”, affecting
2 The parties addressed this drone video as well as another recording of a reenactment of the pursuit at the same time prior to trial.
12 the scene overall and the effect on the jury’s interpretation of this pursuit; the
recording was made four months after the March incident. She also clarified
that this was a daytime video and the pursuit occurred at night. Defense
counsel also argued that Sgt. Miller waited on the road while Coogle went
around the barn so the “route” taken by the drone was based on Sgt. Miller’s
assumption of the route that Coogle took when he was out of Sgt. Miller’s sight.
The Commonwealth stated it sought to admit the video to show the scene and
give context to where these events occurred.
The trial court, in a well-explained evaluation, held that the video was
not a reenactment, it was simply a video of an area where the events occurred.
It determined that there was no appreciable prejudice in showing a video rather
than a photograph, there was clearly probative value to show the intent to flee
from Coogle’s route that evening, and the differences in foliage were not
germane to the probative value. The trial court stated: “The point is, it shows a
path... This danger of undue prejudice does not substantially outweigh that
probative value.” The trial court delved into the differences but found those
differences did not impact the prejudicial or probative value of the drone
evidence.
In Rankin v. Commonwealth, this Court adopted the rule from the federal
courts that “experiment evidence is generally admissible if it bears upon a
material issue and if the proponent establishes a sufficient similarity between
the conditions of the experiment and those of the event in question.” 327
S.W.3d at 498 (citations omitted). The Court explained:
13 If the experiment is offered as a simulation of actual events, then there must be substantial similarity between the experimental conditions and those which are the subject of the litigation. [However, if] the experiment is not meant to simulate what happened, but rather to demonstrate some general principle bearing on what could or what was likely to have happened, then the similarity between the experimental and the actual conditions need not be as strong. [No matter the purpose of the experiment,] the similarities must be such as to afford a fair comparison, and the court should be mindful of the significant risk of undue prejudice inherent in dramatic presentations offered to the jury as reenactments.......... If the experiment evidence is sufficiently similar to be probative and if its probative value is not outweighed by undue prejudice, then differences between the experiment and the event at issue go to the weight of the evidence, not its admissibility.
Id. at 498-99 (citations omitted).
“Generally speaking, the results of out-of-court experiments are generally
admissible in evidence if such evidence tends to enlighten the jury and enable
them to more intelligently consider the issues or if they provide evidence more
satisfactory or reliable than oral testimony.” Stevens v. Commonwealth, 462
S.W.2d 182, 185 (Ky. 1970) (citing Lincoln Taxi Co. v. Rice, 251 S.W.2d 867 (Ky.
1952)). “Such evidence is never admissible, however, unless the conditions
under which the experiment was performed were substantially similar to the
case under consideration.” Stevens, 462 S.W.2d at 185-86 (citing Ohio County
Drug Co. v. Howard, 256 S.W. 705 (Ky. 1923)).
Here, the probative value under Kentucky Rule of Evidence (KRE) 401 is
clear. Describing the geographic area of this rural scene was difficult for any
officer or witness; it was even harder to appreciate and picture as a listening
juiy member. The aerial footage was extremely helpful in assisting the jury to
14 understand all the testimony presented in the context of where the parties were
on the evening described. This was not a reenactment video and was not
purported to be. The drone video only attempted to show the scene itself, not
what occurred between Coogle, Sgt. Miller, and anyone else on the road that
evening. As such, the similarities do not need to be quite as substantial as a
reenactment video.
We agree with the trial court that the differences here (foliage, season,
and timing) are simply not germane to the probative value the video had for the
jury. “[T]he experiment’s obvious limitations can reasonably be deemed to go
to its weight as evidence, not to its admissibility.” Rankin, 327 S.W.3d at 499
(see also United States v. Metzger, 77S F.2d 1195, 1204 (6th Cir. 1985) (quoting
Szeliga v. Gen. Motors Corp., 728 F.2d 566, 567 (1st Cir. 1984)) (“Indeed, most
‘[dissimilarities between experimental and actual conditions affect the weight
of the evidence, not its admissibility.”’). The parties clarified to the jury that
this was not a reenactment or live footage; they clarified that the events took
place in the night rather than during daytime lighting. We cannot hold that
the court abused its discretion in allowing this video. The probative value was
high; the prejudicial value was low. The video showed nothing outlandish or
offending; it merely showed the scene of the crime. Additionally, the video was
similar enough to be probative and admissible under KRE 401, 403, and
Rankin. The trial court did not err in admitting the video.
15 D. Prosecutorial Misconduct
Coogle also alleges that the Commonwealth committed prosecutorial
misconduct by asking him questions on cross-examination that implied he was
a drug trafficker. Coogle testified on the second day of trial; he was the
defense’s only witness. The Commonwealth conducted an extensive cross-
examination. In relevant part, the following exchange occurred between the
prosecutor and Coogle.
CW:3 Now, you had a pipe that day, correct? CC:4 Yes, sir. CW: And you also had baggies? CC: Yes, sir. CW: Okay. Some of those baggies were unused, is that correct? CC: Yes. CW: Okay. What do you use an unused baggie for? CC: You can use it for many things - DC:5 Objection. TJ:6 Mmm, I’m going to overrule that objection. Um I see where he’s going with this. It’s relevant to the intent to flee. Uh - why - so what was going on, what did he suspect he might be arrested for, so overruled. Go ahead. CC: What did I use them for? [Shrug] Uh puts meth in, put - uh, uh, they’re used for all kinds of things. You can buy them at smoke shops. CW: Buy them at smoke shops? CC: Yes, sir. CW: And the scales - how about scales? Would you agree with me that an individual-typically a user doesn’t carry scales, correct? DC: Objection, your honor, may we approach? TJ: No, you may not. Overruled. Go ahead. CW: Typically a user doesn’t have scales, correct? CC: No, pretty much everybody I know owns a set of scales.
3 Commonwealth 4 Coogle 5 Defense Counsel 6 Trial judge
16 CW: Traffickers do too, correct?7 CC: I don’t know. CW: You don’t know if a - you ever seen anybody weigh dope out? CC: No. CW: When you would buy your dope, would they weigh the dope out? CC: No. CW: They just give it to you? CC: [No answer]
The Commonwealth asked further questions about who Coogle was with that
evening but refrained from further references to trafficking. The remainder of
the cross-examination focused on Coogle’s intent that night and the danger he
created to other people.
“Prosecutorial misconduct is ‘a prosecutor’s improper or illegal act
involving an attempt to persuade the jury to wrongly convict a defendant or
assess an unjustified punishment.”’ Dickerson v. Commonwealth, 485 S.W.3d
310, 329 (Ky. 2016) (quoting Noakes v. Commonwealth, 354 S.W.3d 116, 121
(Ky. 2011) (citation omitted)). “It can take a variety of forms, including
improper questioning and improper closing argument.” Dickerson, 485 S.W.3d
at 329 (citing Duncan v. Commonwealth, 322 S.W.3d 81, 87 (Ky. 2010)).
“Although the Commonwealth is granted latitude in presenting its argument
and raising objections, the prosecutor must nonetheless ‘stay within the record
and avoid abuse of defendants and their counsel.’” Caudill v. Commonwealth,
374 S.W.3d 301, 309 (Ky. 2012) (quoting Whitaker v. Commonwealth, 183
S.W.2d 18 (Ky. 1944)). “While it is the duty of the prosecutor to advance the
7 We must note that the Commonwealth asserted in its brief that “the Commonwealth never used the word trafficker.” This was clearly incorrect from review of the record.
17 Commonwealth’s case with persuasiveness and force, he or she has a
concomitant duty not to derogate from a fair and impartial criminal
proceeding.” Caudill, 374 S.W.3d at 309 (quoting Commonwealth v. Mitchell,
165 S.W.3d 129, 132-33 (Ky. 2005)).
This Court will “reverse for prosecutorial misconduct only if the
misconduct is ‘flagrant’ or if each of the following three conditions is satisfied:
(1) Proof of defendant’s guilt is not overwhelming; (2) Defense counsel objected;
and (3) The trial court failed to cure the error with a sufficient admonishment
to the jury.” Caudill, 374 S.W.3d at 312 (citing Bames v. Commonwealth, 91
S.W.3d 564, 568 (Ky. 2002) (citing United States v. Carroll, 26 F.3d 1380, 1390
(6th Cir. 1994) and United States v. Bess, 593 F.2d 749, 757 (6th Cir. 1979))).
The Court utilizes a “four-factor test to determine whether a prosecutor’s
improper comments constitute reversible flagrant misconduct.” Dickerson, 485
S.W.3d at 329.
(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, 55 (Ky. 2010) (quoting
Hannah v. Commonwealth, 306 S.W.3d 509, 518 (Ky. 2010))). The “review
must center on the essential fairness of the trial as a whole, with reversal being
justified only if the prosecutor’s misconduct was ‘so improper, prejudicial, and
egregious as to have undermined the overall fairness of the proceedings.”’
Dickerson, 485 S.W.3d at 329 (quoting Brewer v. Commonwealth, 206 S.W.3d
18 343, 349 (Ky. 2006) (citing Soto v. Commonwealth, 139 S.W.3d 827, 873 (Ky.
2004))). Thus, the first issue is whether there was error in this line of
questioning. If so, then we must consider whether that misconduct was
“flagrant” or if the three-part test is satisfied to warrant reversal.
KRE 404(b) prohibits admission of “other crimes, wrongs, or acts ... to
prove the character of a person in order to show action in conformity
therewith.” There are certain exceptions allowing such admission, but the rule
is “exclusionary in nature” and “any exceptions to the general rule that
evidence of prior bad acts is inadmissible should be ‘closely watched and
strictly enforced because of the dangerous quality and prejudicial
consequences of this kind of evidence.’” Clark v. Commonwealth, 223 S.W.3d
90, 96 (Ky. 2007) (quoting O’Bryan v. Commonwealth, 634 S.W.2d 153, 156
(Ky. 1982)). “There are three inquiries, which together, provide a useful
framework for determining the admissibility of other crimes evidence.” Bell v.
Commonwealth, 875 S.W.2d 882 (Ky. 1994) (citation omitted). A court should
ask: (1) “Is the other crimes evidence relevant for some purpose other than to
prove the criminal disposition of the accused?”; (2) “Is evidence of the
uncharged crime sufficiently probative of its commission by the accused to
warrant its introduction into evidence?”; and (3) “Does the potential for
prejudice from the use of other crimes evidence substantially outweigh its
probative value?” Id. at 889-90.
19 Although the trial court did not reference KRE 404 in its decision, it did
address these concerns generally. In holding these questions permissible, the
trial court stated:
What [the prosecutor’s] trying to do is to show uh if someone - is there a difference between the intent of someone who may have possession of meth and the difference in the intent of someone who believes they may be arrested for trafficking activity - would that weigh into their intent as to what they would do to get away? Would that weigh into their intent as to whether they would or would not attempt to strike an officer? That is relevant and probative evidence. So, if he is with someone and you know if he wants to show that there is evidence of trafficking then he can present that. It doesn’t matter that he didn’t charge him with it. It’s relevant to the charges that are being tried right now.
My point is that it is relevant, it is germane, it is particularly relevant to intent that night, which is the issue in the case. So, in terms of relevance, I will overrule any objection to that um -
The probative - because intent is the issue we’re all talking about and what he’s thinking - you know, if this police officer gets me, he’ll see I’m trying to get away, I had warrants, I had that, and if there was evidence of trafficking, that figures in to what was his intent that night. It is highly probative and is not unduly prejudicial because it’s evidence of what happened that night. I think we already know about scales, we already know about baggies. So, I’m going to overrule the objection.
Had this issue been presented to the Court as a trial error, we would review its
decision under an abuse of discretion standard. See Anderson v.
Commonwealth, 231 S.W.3d 117, 119 (Ky. 2007). Were we to view the
questions through this lens, we would be hard-pressed to find an abuse of the
trial court’s discretion here. The trial court examined the relevance of the
evidence, its probative value, Coogle’s defense (lack of intent), the main issues
20 presented to the jury, the potential prejudice resulting from the admission, and
made a well-reasoned and sound decision. The decision is also firmly rooted
within the case law of KRE 404(b).
Generally, it will be a unique and rare circumstance when evidence of
uncharged trafficking crimes is admissible in a trial for unrelated crimes. In
Gordon v. Commonwealth, this Court found “no legitimate need to say or imply
that appellant was a drug dealer or that he was suspected by the police
department of selling drugs in a particular vicinity.” 916 S.W.2d 176, 179 (Ky.
1995). “Admission of this evidence branded appellant a drug dealer, violated
his right to confront and cross-examine witnesses, denied his right to be tried
only for the crime charged, and in general, bolstered the credibility of the police
informant to the point where appellant’s denial of criminal conduct would have
appeared preposterous.” Id. (see also Graves v. Commonwealth, 384 S.W.3d
144, 148-51 (Ky. 2012)). In contrast, however, we determined evidence of
uncharged undercover drug buys was admissible “to demonstrate Appellant did
in fact have knowledge of the drugs recovered from” his home. Muncy v.
Commonwealth, 132 S.W.3d 845, 847 (Ky. 2004). It also proved his “intent to
sell the drugs.” Id. at 847-48. Recognizing that “it would typically be improper
for the Commonwealth or a testifying witness to refer to the undercover buys” if
the defendant is not on trial for those charges, this Court still determined that
the circumstances of that case made the previous buys admissible. Id. at 847-
48. Given Coogle’s defense and the evidence presented at trial, we cannot say
that the trial judge’s decision here was necessarily an abuse of discretion. As
21 such, we cannot say that the Commonwealth committed prosecutorial
misconduct. However, given the highly prejudicial nature of implying that a
defendant is a drug trafficker, we would caution both prosecutors and trial
courts to conduct a thorough examination and colloquy before admitting such
Even if these statements were admitted in error, we cannot hold that the
questions rose to the level of reversible prosecutorial misconduct. “Reversal is
only justified when the alleged prosecutorial misconduct is so serious as to
render the trial fundamentally unfair.” Wheeler v. Commonwealth, 121 S.W.3d
173, 189 (Ky. 2003) (citing Summit v. Bordenkircher, 608 F.2d 247 (6th Cir.
1979)). The Commonwealth’s cross-examination of Coogle was extensive. But
the reference to trafficking was isolated and fleeting. Coogle admitted to most
of the crimes charged; he merely argued he never intended to harm Sgt. Miller
that evening. Given these circumstances, these comments did not render
Coogle’s trial fundamentally unfair.
E. Sentencing Exhibits
Pursuant to KRS 532.055(2)(a), the Commonwealth may introduce
evidence at sentencing about a defendant’s prior convictions. This Court has
held that “[i]t is clear from the statute that the legislature intended for juries to
be able to consider more information about a defendant’s prior criminal history
than just the identification of ‘prior convictions.’” Mullikan v. Commonwealth,
341 S.W.3d 99, 108 (Ky. 2011). However, this Court has also clearly held that
“the evidence of prior convictions is limited to conveying to the jury the
22 elements of the crimes previously committed.” Id. at 109. Coogle alleges that
the jury was inadvertently given access during sentencing to the certified
copies of his prior convictions, which included in-depth and clearly
inadmissible information about those convictions. The Commonwealth seems
to concede that, had such information been given to the jury, it would have
been error. However, the Commonwealth asserts that the only information
given to the jury was a two-page summary of prior convictions and none of the
certified records (which contained the details, citations, etc.) were ever given to
the jury. They were, instead, supplied to the trial court to maintain in the
record.
In reviewing the record, the prosecution handed the probation and parole
officer a thick file of papers that he identified to the court as the certified
records at the beginning of her testimony. In reviewing the convictions with
the officer, the prosecutor identified the forms the witness was reviewing as
Commonwealth’s Exhibit 8.8 The Commonwealth specifically asked whether
the records were certified, and the officer said, yes. The Commonwealth moved
to enter Commonwealth’s Exhibit 8 into evidence and it was admitted without
objection from the defense. After preparing jury instructions and awaiting the
jury’s return, the judge asked the Commonwealth, holding up what appeared
8 Coogle’s allegation of error here stems from this Exhibit in the record. Included with the trial exhibits is a packet of pages marked as Commonwealth’s Exhibit 8 and includes the two-page summary and all the certified records. However, once again, we cannot tell whether this was attached before or after sentencing. From the video record, the parties and judge seem to treat these as two separate collections rather than one exhibit.
23 to be one or two pieces of paper, “So you intended - this is the exhibit?” The
prosecutor responded, “I intended for the certified copies to go in the record for
- for the record.” The judge responded, “That’s fine.” The prosecutor made a
comment that is not clearly audible, and the judge added, “Well without the
extraneous information.” After closing arguments, the judge told the jury that
there was one additional exhibit, holding up what again appeared to be one or
two pieces of paper, and handed it to the bailiff to take back during the jury’s
deliberations along with the original set of sentencing instructions.
From this Court’s review of the record and sentencing proceedings, it is
unclear what exactly was given to the jury during its sentencing deliberations.
Such a lack of clarification creates a conundrum for this Court to address on
appellate review. But, “[i]t is the responsibility of the appellant to present a
complete record to this Court for review.” Graves v. Commonwealth, 283
S.W.3d 252, 255 (Ky. App. 2009) (citing Chestnut v. Commonwealth, 250
S.W.3d 288, 303 (Ky. 2008)). “When the record is incomplete, we assume the
omitted record supports the trial court’s decision.” Graves, 283 S.W.3d at 255
(citing Commonwealth v. Thompson, 697 S.W.3d 143, 145 (Ky. 1985) (citing
Commonwealth, Dept. of Highways v. Richardson, 424 S.W.2d 601, 604 (Ky.
1968))). “This Court is not in the business of making baseless presumptions.
It is incumbent upon Appellant to present the Court with a complete record for
review.” Chestnut, 250 S.W.3d at 303 (citations omitted). “When the record is
incomplete, this Court must assume that the omitted record supports the trial
court.” Id. (citing Thompson, 697 S.W.2d at 145). “We will not engage in
24 gratuitous speculation as urged upon us by appellate counsel, based upon a
silent record.” Chestnut, 250 S.W.3d at 303 (citing Thompson, 697 S.W.2d at
145).
We note that Coogle has not asserted any proof from the record that the
jury actually reviewed these certified records during its deliberations. It was
quite possible for defense counsel to obtain affidavits from the jury members as
to whether those documents were sent back during deliberations. We have no
such evidence. The video record shows the trial judge handing documents to
the bailiff but it is impossible to tell exactly what those documents are,
although it appears to be fewer papers than all the certified records. Without
more,9 we cannot presume that the trial court erred. We are “not in the
business of making baseless presumptions.” See Chestnut, 250 S.W.3d at 303.
“We will not engage in gratuitous speculation [.]” See id. Thus, we must hold
that there is no reversible error as Coogle suggests.
III. CONCLUSION
For the foregoing reasons, we hereby affirm, in all respects, the judgment
and sentence of the Hardin Circuit Court.
Minton, C.J.; Hughes, Keller, Lambert, VanMeter and Wright, JJ., sitting.
Minton, C.J.; Keller, Lambert, VanMeter and Wright, JJ., concur. Hughes, J.,
concurs in result only without opinion.
9 We also note that relief is not necessarily foreclosed if Coogle determines that this error did, in fact, occur. Should counsel obtain affidavits as described or some further evidence to support the allegation that the jury reviewed these documents during deliberations, then Coogle may pursue reliefunder CR 60.02. Our decision today is made with the limited information presented to us.
25 COUNSEL FOR APPELLANT:
Brandon Neil Jewell Assistant Public Advocate Department of Public Advocacy
COUNSEL FOR APPELLEE:
Andy Beshear Attorney General of Kentucky
Jesse Robbins Assistant Attorney General