IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: APRIL 24, 2025 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2024-SC-0081-MR
COCINA PENN APPELLANT
ON APPEAL FROM MCCRACKEN CIRCUIT COURT V. HONORABLE WILLIAM ANTHONY KITCHEN, JUDGE NO. 22-CR-01038
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Cocina Penn was convicted of murder and sentenced to life in prison.
Penn now appeals the decision of the McCracken Circuit Court. For the
following reasons, we affirm.
I. BACKGROUND
On October 4, 2022, at 4:44 a.m., 911 dispatchers received a call from
Carl Penn, the adult son of Penn and her husband, Robert Penn. Carl, who
was living with his parents at the time, told the 911 dispatchers that his
mother had awakened him because his father was laying in the street outside
of their residence in Paducah, Kentucky and he appeared to have been
stabbed. After waking Carl, Penn went over to Tony Jones’ neighboring residence and asked Tony to call 911, because her cell phone was missing. 1
Tony’s mother called 911.
Police officers quickly arrived on the scene and found Robert in the street
surrounded by large amounts of blood. Penn was also on the scene, having
returned after asking Tony to call 911. Officer Julia Cross began to perform
CPR on Robert. Ofc. Cross noted that Robert was not responding to her CPR
efforts, his eyes were unmoving, and his extremities showed signs of rigor
mortis. 2 The EMTs 3 arrived on the scene soon after Ofc. Cross started CPR on
Robert. They took over CPR and were about to place a defibrillator on Robert
when they lifted his shirt and discovered that he had been eviscerated. 4
Nonetheless, the EMTs continued to administer CPR, because it was their
protocol to continue CPR until paramedics arrive at the scene.
Kenny Wilson, a paramedic with Mercy Regional EMS Ambulance of
Paducah, testified at trial that there were obvious signs Robert was already
deceased: he was not breathing, he suffered a severe injury to his abdomen,
1 There was testimony at trial from multiple officers that they were informed
they were responding to a suspected robbery, that cell phones were missing, and that someone had been stabbed. Based on certain objections made at trial, we believe that Penn was the one who reported the scene as a robbery. There was no testimony at trial that explicitly discussed this, however. 2 Rigor mortis is the third stage after death, in which the muscles harden and
become stiff, caused by the lack of adenosine triphosphate (ATP), which gives energy to the muscles. Medicine Net, What is Rigor Mortis?, https://www.medicinenet.com/what_are_the_stages_of_rigor_mortis/article.htm (last visited March 24, 2015). 3 Emergency Medical Technicians.
4 Robert’s small intestine was protruding from a large gash on his abdomen.
2 his neck had been severely cut, his wrists were deeply wounded, his body
showed signs of rigor mortis, and he was pale and cold to the touch.
Police officers began to secure the surrounding area. They discovered a
security camera mounted on the residence of another neighbor, Michael
Waters. The camera pointed towards the street where Robert had been found.
The officers asked Michael if his security camera had been recording that early
morning, and Michael told them that the camera recorded motions and audio.
He stated that he could use his cell phone to view any activity the security
camera might have picked up. After checking his cell phone, Michael told the
officers that his camera had recorded activity around 3:10 a.m.—about an hour
and a half before either of the 911 calls were made. The recording ended
around 3:13 a.m. Detective Dylan Cook later returned to Michael’s residence,
and had Michael send him the video via e-mail. The video depicted two figures
running into the frame from the right moving towards the left in the direction of
the Penn residence. The figure in front was much larger than the figure in the
back. A man’s voice can be heard screaming either “don’t, baby, don’t . . . no,
baby, no” or “run, baby, run.” 5 Later in the video, the same male voice can be
heard pleading for help. At trial, Kevin Penn, Robert’s and Penn’s second adult
son, testified that the male voice in the recording was his father’s and that
Robert always called Penn “Baby.”
5 The audio is somewhat unclear. The Commonwealth presented to the jury during its opening argument that the voice was yelling “don’t, baby, don’t” while the defense asserted during its closing argument that the voice was yelling “run, baby, run.”
3 In addition to their investigation of the scene, officers began the process
of “pinging” 6 Penn’s and Robert’s missing cell phones. 7 The officers made an
inquiry to Verizon, the carrier of the phones, as to where the phones were
located. Verizon then tracked the phones and sent the officers any “pings” the
phones made, indicating their location. Robert’s cell phone was not able to be
located, but Penn’s cell phone was located within the vicinity of a landfill in
Mayfield, Kentucky—about 30 minutes away from Paducah. However, the
officers did not search the landfill because over 100 tons of waste had been
dumped that day by the time they received the phone’s location.
Detective Kevin Wilson testified that Robert’s body had been found
approximately 154 feet south of a footbridge that led from the Penns’
residential neighborhood into a semi-wooded area. Det. Wilson began his
investigation at the footbridge because he had been informed by other officers
on the scene that there was blood found on the footbridge. He walked south
away from the footbridge towards where Robert had been found, noting that
there was blood on the leaves and grass near the footbridge. Det. Wilson then
walked back towards the footbridge, crossed it, but found no evidence on the
other side of the footbridge.
6 Pinging a cell phone involves sending a signal to it in order to determine the
cell phone’s location. 7 The initial 911 dispatch message had informed officers that they were
responding to a potential robbery where cell phones had been stolen and that someone had been stabbed. That information prompted the officers to ping the cell phones, which can only be done in life threatening situations.
4 After investigating the footbridge, Det. Wilson and other officers executed
a search warrant on the Penn residence. They found blood smeared on the
front exterior door, and on a kitchen cabinet. A single wet washcloth was
found in the washing machine, and a knife was discovered in the bathroom. 8
Officers searched the P-trap 9 located underneath the kitchen sink and noted
that it smelled like bleach. Swabs and samples were taken from all the blood
found in the Penn residence, on the street near Robert, the footbridge and
surrounding area.
K-9 Officer Andrew Parish responded to the scene around 5 a.m. He
testified that he was responding to what was initially a suspected robbery,
which is why the K-9, who was trained to track people, was used. Ofc. Parish
started his search for a potential suspect on the south side of the footbridge,
and then tracked across it to the north side. His K-9 stopped tracking once
they crossed the bridge. Ofc. Parish testified that if there had been any human
scent on the north side of the footbridge his K-9 would have kept tracking the
area.
While the police officers were conducting their investigation of the scene,
Penn was taken to the hospital to be evaluated. Detective Chelsee Breakfield
testified that she spent most of October 4, 2022, at the hospital with Penn.
Det. Breakfield took pictures of Penn while at the hospital to document Penn’s
8 It is not believed that this was the knife used to kill Robert.
9 The detachable U-shaped portion of a pipe located underneath a sink that
catches debris or other foreign objects.
5 appearance. Penn had cuts on her fingers and hands. Penn also had a cut on
her back—however, there was no corresponding cut to Penn’s shirt where the
cut was located on her back. 10 Penn also had blood in her left ear and blood
stains on her pants. After officers obtained a search warrant for DNA, multiple
swabs were taken from Penn, including the blood in Penn’s ear, the inside of
her cheeks, and her fingernails. Samples from her bloody clothes were also
taken for testing. Penn was arrested around 10 a.m. on October 4, 2022.
The swabs and samples taken from the scene and Penn were sent to a
laboratory for DNA testing. The blood found on Penn’s pants matched samples
that were taken from Robert, as did the blood found on the footbridge and the
door frame of their residence. The blood swab from the street and the kitchen
cabinet matched Penn. The blood swab taken from Penn’s ear matched both
herself and Robert.
It was not until after Penn’s arrest that officers received information
regarding a potential romantic affair occurring between Penn and a man
named William Tabor. At the time of Robert’s murder, Tabor was living with
his now ex-girlfriend, Kathleen Krencis, in Paducah, Kentucky. Ms. Krencis
testified at trial that she had started to have suspicions that Tabor was hiding
something from her because he began to hide his phone. About two days prior
to Robert’s murder, Ms. Krencis decided to check Tabor’s phone while he was
asleep. She found messages and sexually explicit photos and videos sent to
10 In its closing argument, the Commonwealth presented the theory that Penn
had used the knife in the bathroom to cut herself to stage the scene.
6 Tabor from Penn. On October 2, 2022, Ms. Krencis sent Penn a text message
detailing that she was aware of the affair between Penn and Tabor, and
threatened to tell Robert about it if Penn did not tell him herself. Ms. Krencis
testified that Tabor was home with her the entire night and early morning of
October 4, 2022, because she was taking a medication at the time that had her
up every hour of the night and Tabor was there each time she woke up.
Tabor testified at trial that the affair between him and Penn began in
January 2022. They would meet on his lunch breaks and at Penn’s place of
work in the early mornings. Tabor stated that he thought he always deleted
any evidence of the affair off his phone every day after work. However,
Sergeant Jordan Murphy was able to extract information from Tabor’s cell
phone which included a screenshot of a message that was sent on Facebook
Messenger from Penn to Tabor. The message read
I sure can’t stand his ass I hate his fucking guts[.] I’m saving up money[.] There was me and you [t]o get together because it won’t be long[.] I’m hoping I will eventually find somebody, you know, you know what I mean, and then he’ll be gone[.] I love you so much baby.
Det. Breakfield conducted an interview with Tabor at some point after the
officers were notified of the affair. Tabor testified that he told Det. Breakfield
during his interview with her that Penn told him she was going to hire someone
to “bump him off.” Penn did not specify to Tabor who she meant by “him,” but
it was implied she meant Robert. Tabor also told Det. Breakfield about a time
when Penn had approached him at his place of work and said that she would
find someone to “do away with him”— “him” meaning Robert. Tabor testified
7 that he thought Penn was just joking when she made those comments, but he
never mentioned that in the interview he gave to Det. Breakfield.
Tabor testified that he was home during the time of Robert’s murder, but
around 6 a.m. that morning he had gone to Penn’s place of work to meet her.
When she did not show up, he proceeded to drive to Penn’s residence but saw
that there was a white sheet covering what appeared to be a body in the road
near her house. Tabor testified he thought that the sheet was covering Penn at
first but later found out that it had been Robert. When asked if he had
anything to do with Robert’s murder, Tabor responded that he did not. Tabor
testified that he knew Robert, that he had an amicable relationship with
Robert, and that he was not the person Penn was referring to in the statements
she made about finding someone to kill Robert.
The Commonwealth presented additional testimony at trial from a friend
of Penn’s, Michael Overby. He testified that Penn had approached him at his
place of work in early September 2022. Penn asked him if he knew how to
obtain a firearm, and he told her that he did not mess with guns. Michael
testified that was the extent of the conversation.
While Penn exercised her right to not testify during her trial, defense
counsel argued during its closing argument that someone had attacked and
robbed both Robert and Penn, and the police officers failed to sufficiently follow
that lead during their investigation. Defense counsel suggested to the jury that
the person responsible for Robert’s death was a third party who wanted Robert
“out of the picture”—a third party like Penn’s secret lover, Tabor. The jury was
8 instructed on murder and found Penn guilty. She was sentenced to life
imprisonment and now appeals her conviction. Additional facts will be
developed as necessary.
II. ANALYSIS
On appeal, Penn raises three issues, each is unpreserved. Penn has
requested review under our palpable review standard. She first argues that Dr.
Christopher Kiefer, the medical examiner who performed Robert’s autopsy,
gave improper opinion testimony during trial and the Commonwealth
improperly relied on that testimony in its closing argument. Second, Penn
argues that the Commonwealth committed prosecutorial misconduct when it
rebutted her defense during its closing argument. Lastly, Penn asserts that the
alleged errors amount to cumulative error.
1. It was not palpable error for Dr. Kiefer to testify about the significance of the facial wounds he examined on Robert, or for the Commonwealth to discuss Dr. Kiefer’s testimony in its closing argument.
Penn argues that the trial court erred when it allowed Dr. Kiefer to testify
that if a victim sustains injuries to the face that is indicative of a long term or
romantic relationship between the victim and the perpetrator, or that there was
charged energy between the two. She contends that the testimony was
improper opinion testimony pertaining to the habits of a particular subset of
individuals, and that the Commonwealth improperly emphasized that
testimony during its closing argument. Because Penn failed to preserve this
9 argument for appellate review, she asks this Court to review the argument
pursuant to RCr 11 10.26 for palpable error.
A palpable error is one that affects an individual’s substantial rights and
“may be considered by the court on motion for a new trial or by an appellate
court on appeal, even though insufficiently raised or preserved for review, and
appropriate relief may be granted upon a determination that manifest injustice
has resulted from the error.” RCr 10.26. “A palpable error must be so grave in
nature that if it were uncorrected, it would seriously affect the fairness of the
proceedings.” Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006).
“That means that if, upon consideration of the whole case, a substantial
possibility does not exist that the result would have been different, the error
will be deemed nonprejudicial.” Graves v. Commonwealth, 17 S.W.3d 858, 864
(Ky. 2000).
At trial, Dr. Kiefer described the process he followed while performing
Robert’s autopsy on October 5, 2022. All throughout the autopsy, Dr. Kiefer,
or someone else at his direction, took photographs to document Robert’s body
and injuries. Dr. Kiefer described the injuries Robert sustained, including
extensive stab wounds and multiple defense wounds to his hands and wrists. 12
11 Kentucky Rule of Criminal Procedure.
12 While some of the injuries Robert suffered to his wrist could have been self-
inflicted, there was nothing else from Robert’s autopsy or the crime scene that indicated Robert had died by suicide.
10 Dr. Kiefer determined that Robert’s immediate cause of death was either the
severing of his windpipe or carotid artery, 13 as either injury would be fatal.
Dr. Kiefer testified about the multiple injuries Robert had suffered to his
face, particularly to his forehead and lower lip. The Commonwealth asked Dr.
Kiefer several questions regarding those injuries, including these two:
The Commonwealth: Is there anything significant in your practice, your profession, as far as injuries to the face, as far as the work that you do and the conclusions that you draw?
Dr. Kiefer: There is a connection between stab wounds or sharp force trauma in the face and the two people, the person performing or committing the act and the recipient, so the victim.
The Commonwealth: How so? What is that relationship, or what does it suggest in your professional opinion?
Dr. Kiefer: It usually suggests that they’ve been a couple for years, or they’ve got some very highly charged . . . they’re in a relationship is what that means.
This testimony did not elicit an objection at trial. During its closing argument,
the Commonwealth referred to the testimony given by Dr. Kiefer when it stated,
“This is no robbery. What did Dr. Kiefer say? These injuries? These are
injuries of passion. The injuries to the face? What did he say about that? He
says, ‘This suggests intimacy. This suggests familiarity. This suggests a
relationship, a relationship that had lasted for some time.’” Defense counsel
did not object to the Commonwealth’s argument.
13 The carotid artery is a major artery located in the neck. It supplies blood and oxygen to the brain. Cleveland Clinic, Carotid Artery, https://my.clevelandclinic.org/health/body/21492-carotid-artery (last visited March 20, 2025).
11 “A party may not introduce evidence of the habit of a class of
individuals either to prove that another member of the class acted the same
way under similar circumstances or to prove that the person was a member of
that class because he acted the same way under similar circumstance.”
Ordway v. Commonwealth, 391 S.W.3d 762, 776 (Ky. 2013) (citing Miller v.
Commonwealth, 77 S.W.3d 566, 572 (Ky. 2002)). In Ordway, the Appellant was
convicted of capital murder for the deaths of two men. Ordway, 391 S.W.3d at
762-63. He claimed he killed the two men in self-defense. Id. At the
Appellant’s trial, an investigating detective testified that the “Appellant did not
act like those who had lawfully protected themselves but, had instead acted
like those who were fabricating a self-protection defense.” Id. at 775. This
Court determined that the detective’s testimony “was clearly devastating to
Appellant’s claim of self-defense.” Id. at 777. “Detective Wilson’s testimony
contrasting his opinion on the habits of suspects who, as a class, have
truthfully invoked the defense of self-protection against the class of those who
have lied about it, and how Appellant’s post-shooting conduct was consistent
with the latter, should have been excluded as improper opinion testimony and
irrelevant.” Id. at 776. The Detective’s testimony was not harmless, and the
Appellant’s murder conviction was reversed. Id. at 776-77.
Penn urges this Court to take the stance it did in Ordway. However, her
case is distinguishable from Ordway for multiple reasons. First, the Appellant
in Ordway objected to the detective’s testimony, but the trial court overruled
his objection. Id. at 775. Therefore, the question in that case was whether the
12 trial court erred when admitting the detective’s testimony and whether that
error was harmless. Id. The question here is whether the admission of Dr.
Kiefer’s testimony constituted palpable error—a much higher standard than
harmless error. Commonwealth v. Rieder, 474 S.W.3d 143, 146 (Ky. 2015).
Second, the detective’s “testimony in Ordway was more extensive than in
the present case.” Id. It was permissible for the detective in Ordway to testify
about “how persons who legitimately exercise the right of self-protection
typically behave,” but he took that testimony a step too far by concluding that
the Appellant did not act like a person who had lawfully protected himself but
rather as someone who had fabricated a self-protection defense. Id.; Ordway,
391 S.W.3d at 775. The testimony “in effect, urged the jury to depend upon
[the detective’s] expertise as a police officer and his perception and opinions
about matters outside the realm of common knowledge.” Ordway, 391 S.W.3d
at 776-77. Thus, the testimony was improper. Id.
Here, Dr. Kiefer did not give his opinion regarding Penn’s guilt like the
detective did in Ordway. He never gave any specific testimony regarding
Penn—he only testified that his professional training usually suggests a
correlation between certain facial wounds inflicted on a homicide victim and
the relationship between the victim and the perpetrator. Compare Nugent v.
Commonwealth, 639 S.W.2d 761, 764-65 (Ky. 1982) (reversing the defendant’s
murder conviction due to erroneously admitted opinion testimony from a
witness who was asked if the defendant “dropped the hammer on the victim”
and replied, “I think he did, you know if you want the honest to God truth.”);
13 McGuire v. Commonwealth, 595 S.W.3d 90, 95 (Ky. 2019) (holding that a police
officer’s opinion, based on his experience, that the evidence recovered was
consistent with drug trafficking and not personal use was admissible because
his testimony did not discuss the defendant’s guilt).
Third, Dr. Kiefer testified about his process for conducting Robert’s
autopsy and what his findings were in the context of his specialized knowledge
as a forensic pathologist. According to KRE 14 702, expert testimony is
admissible when the expert’s “scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue.” While Penn would argue that Dr. Kiefer’s testimony
was inherently incompetent because it suggested that Penn specifically
targeted Robert’s face due to their relationship status, Dr. Kiefer only testified
about the pattern that facial stab wounds present based on his forensic
training and experience conducting autopsies. His testimony indicated that, in
the context of a homicide, injuries to the face demonstrate that a high amount
of charged energy would have been present in the situation, and that indicates
the victim and the perpetrator have a relationship. 15 The information provided
by Dr. Kiefer would assist the jury pursuant to KRE 702.
14 Kentucky Rule of Evidence.
15 In Turner v. Commonwealth, the Appellant was convicted for the murder of
his father. 5 S.W.3d 119, 121-22. While in the emergency room, Appellant’s father made a statement that identified Appellant as his killer—his statement was overheard by Patricia Keen. Id. Based on the testimony of Patricia, the statement was admitted into evidence as a dying declaration. Id. On appeal, Appellant further asserts that Patricia Keen was not qualified to express an opinion that Bill Turner knew he was going to die when he identified 14 Lastly, the Commonwealth presented substantial evidence of Penn’s
guilt. Rieder, 474 S.W.3d at 146. There was a video, albeit poor quality, that
showed two figures running south in the direction of the Penn residence where
one figure was clearly larger than the other figure giving chase. There was
discussion at trial detailing how Robert was a larger man and Penn was a
smaller woman. Penn’s own son testified that the man’s voice heard in the
video belonged to Robert, and that Robert called Penn “Baby.” Robert’s voice in
the video is arguably saying “don’t, Baby, don’t!”. Det. Breakfield testified that
the wounds Penn had on her hands were consistent with the wounds found on
other assailants who stab their victims—the presence of blood and the amount
of force an assailant uses while stabbing would cause their hands to slip up to
the sharp part of the knife. Det. Breakfield also testified that while she had
expected to find more wounds on Penn, it would be very unlikely that the two
people in the video would be anyone other than Robert and Penn. The jury was
free to believe that the two figures in the video were Robert and Penn.
The Commonwealth also presented evidence that suggested Penn not
only disliked Robert but had contemplated his murder in the months leading
Appellant as his assailant. The decision as to the qualifications of an expert rests in the sound discretion of the trial court. Ford v. Commonwealth, Ky., 665 S.W.2d 304, 309 (1983), cert denied, 469 U.S. 984, 105 S.Ct. 392, 83 L.Ed.2d 325 (1984). In fact, the qualification requirement is itself a rule of evidence, KRE 702; and, to reiterate, a trial judge is not bound by the rules of evidence in ruling on the admissibility of evidence. KRE 104(a). Any possible error arising from the fact that Keen rendered her opinion in open court was harmless, since her opinion did not go to the issue of Appellant's guilt or innocence, but only to whether Bill Turner's statement was a dying declaration, an issue to be decided by the judge, not the jury. Id. at 123.
15 up to October 4, 2022. Furthermore, Ms. Krencis had threatened to tell
Robert about Penn’s affair just two days before his death. Therefore, Dr.
Kiefer’s testimony was not palpable error as it did not result in manifest
injustice and “did not create the ‘probability of a different result or error so
fundamental as to threaten [Penn’s] entitlement to due process of law.’” Id. at
147 (quoting Martin, 207 S.W.3d at 3).
Penn contends that it was error for the Commonwealth to rely on Dr.
Kiefer’s testimony during its closing argument. This issue is also unpreserved
and will be reviewed under RCr 10.26 for palpable error. “[A] prosecutor is
permitted wide latitude during closing arguments and is entitled to draw
reasonable inferences from the evidence.” Commonwealth v. Mitchell, 165
S.W.3d 129, 132 (Ky. 2005). “The longstanding rule is that counsel may
comment on the evidence and make all legitimate inferences that can be
reasonably drawn therefrom.” Padgett v. Commonwealth, 312 S.W.3d 336, 350
(Ky. 2010) (citing East v. Commonwealth, 249 S.W.2d 137, 139 (Ky. 1933)).
The Commonwealth was free to use what was discussed during trial in
its closing argument. Additionally, much of its closing argument rested on the
other substantial evidence it presented during trial. The Commonwealth
explained how Tabor was not involved in Robert’s murder, how Ms. Krencis
had no reason to lie for her ex-boyfriend, and how Robert would never have
expected his wife to attack him despite the measures she took seeking to
facilitate his murder. The Commonwealth also focused much of its closing
argument explaining how the surveillance video showed two figures running,
16 one of which was too small to ever be Tabor. It was free to suggest to the jury
that it did not believe the reason behind Robert’s murder was a robbery. There
was no manifest injustice created by the Commonwealth’s comments on Dr.
Kiefer’s testimony, and, therefore, we find no palpable error in its comments
during closing argument.
2. It was not palpable error for the Commonwealth to discuss the fact that it was waste pick-up day the same day Robert was murdered during its closing argument.
Next, Penn argues that the Commonwealth committed prosecutorial
misconduct when it rebutted Penn’s robbery defense in its closing argument
rather than using witness testimony by stating “it was trash pick-up day.” At
trial, Det. Cook explained how the initial 911 dispatch call indicated there had
been a robbery where cell phones were stolen. Based on that information, and
the fact that someone had been murdered, the cell phones were tracked in
order to determine their locations. Penn’s cell phone was located near a
landfill.
Steve Harrison, head of Paducah’s sanitation department, testified at
trial that he gave police officers a record of what was dumped in the landfill
where Penn’s phone had pinged the day of Robert’s murder. Specifically, 185
tons of waste entered the landfill on October 4, 2022. Most was from Paducah,
but the landfill accepts waste from surrounding areas. In other words, it would
have been impossible for police officers to find Penn’s phone in the landfill.
During its closing argument, the Commonwealth stated
[Penn] had time to do other things. Get rid of the cellphones. Again, this was no robbery. It happened to be trash pickup day. I 17 wonder if that had anything to do with the plan to kill [Robert] that morning. She had plenty of time to get those cellphones into the trash.
The Commonwealth further stated, “I suggest to you that the knife that was
probably used to kill, not the knife that [Penn] used to cut herself, was
probably in that landfill but, again, knives don’t ping. She had time to get stuff
thrown away.” Penn argues that the above statements amount to flagrant and
reversible misconduct, because they improperly rebut her defense that a
robbery had occurred and resulted in Robert’s murder. Penn failed to preserve
this argument; thus, we will review it under RCr 10.26 for palpable error.
“When reviewing claims of prosecutorial misconduct under our palpable
error standard, ‘we must focus on the overall fairness of the trial and may
reverse only if the prosecutorial misconduct was so improper, prejudicial, and
egregious as to have undermined the overall fairness of the proceedings.”’
James v. Commonwealth, 681 S.W.3d 60, 74 (Ky. 2023) (quoting Brewer , 206
S.W.3d at 349). A prosecutor is afforded wide latitude during closing
argument, including its ability to draw reasonable inferences from the evidence
presented during trial. Mitchell, 165 S.W.3d at132; Padgett, 312 S.W.3d at
350.
The Commonwealth did not commit prosecutorial misconduct when it
suggested during closing arguments that it was trash pickup day. There was
evidence presented at trial that new waste from Paducah had been dumped
into the landfill the day Robert was murdered, which reasonably suggests that
the waste had been collected that same day. It was not unreasonable for the
18 Commonwealth to make the comment about trash pick-up day considering the
evidence presented.
Furthermore, the Commonwealth’s comments did not improperly rebut
Penn’s robbery defense as there had been testimony during trial that suggested
police officers stopped treating the situation as a potential robbery in favor of
treating it as a homicide. Detective Casey Steenbergen testified that, based on
his experience as a Detective, the scene appeared to be a homicide and not a
robbery due to the obvious amount of force used against Robert as robbers do
not typically use a significant amount of force against their victims. Det.
Steenbergen testified that the video footage from Michael’s security camera
made that notion even more evident in this case. Therefore, it was reasonable
for the Commonwealth to present during its closing argument its theory that
Robert’s murder was not the product of a robbery gone bad. As previously
discussed, the Commonwealth had presented a substantial amount of evidence
that supported the jury’s guilty verdict. As no manifest injustice resulted from
the Commonwealth’s statements, we find no palpable error.
3. There is no cumulative error.
Lastly, Penn contends that her murder conviction should be reversed
based on cumulative error. An appellant’s conviction may be reversed when
individual harmless errors have the cumulative effect of rendering her trial
“fundamentally unfair.” Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky.
2010). Here, because there were no errors, cumulative error is not applicable.
19 III. CONCLUSION
For the foregoing reasons, we affirm.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Steven J. Buck Assistant Public Advocate
COUNSEL FOR APPELLEE:
Russell Coleman Attorney General of Kentucky
Courtney J. Hightower Assistant Attorney General