RENDERED: DECEMBER 15, 2022 TO BE PUBLISHED
Supreme Court of Kentucky 2021-SC-0353-MR
HASAN A. SAXTON APPELLANT
ON APPEAL FROM GRAVES CIRCUIT COURT V. HONORABLE KEVIN D. BISHOP, JUDGE NO. 20-CR-00178
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE CONLEY
REVERSING IN PART & AFFIRMING IN PART
This case comes before the Court on appeal as a matter of right1 by
Hasan Saxton, the Appellant, from the judgment and sentence of the Graves
Circuit Court. After a jury trial, Saxton was convicted of first-degree
strangulation, tampering with physical evidence, second-degree persistent
felony offender, criminal mischief, possession of marijuana, and possession of
drug paraphernalia. 2 The jury recommended thirty years, but the trial court
reduced the sentence and imposed only twenty years.3
Saxton now alleges five errors: 1) unauthenticated physical evidence was
improperly admitted; 2) insufficient evidence to sustain a conviction for
1 Ky. Const. § 110(2)(b). 2 Saxton was also charged with first-degree rape but was acquitted. Therefore, we omit the details pertaining to that charge in our recitation of the facts. 3 KRS 532.080 and 532.110. tampering with physical evidence; 3) error in failing to direct a verdict on the
strangulation charge; 4) error in failing to declare a mistrial; and 5) a due
process violation by denying effective cross-examination of the victim. For the
following reasons, we reverse the convictions for tampering with physical
evidence and strangulation, as well as the concomitant convictions for
persistent felony offender based upon them, and the possession of drug
paraphernalia conviction. We affirm the conviction for possession of marijuana.
Saxton has made no argument regarding his conviction for criminal mischief.
We affirm that conviction to the extent it was appealed. Early v.
Commonwealth, 470 S.W.3d 729, 734 (Ky. 2015) (“[I]t is an appellant's burden
to present a complete record and to establish that an error is preserved for our
review.”). Because of our affirming some convictions, we address the failure to
declare a mistrial. We also address the cross-examination argument since it is
a novel constitutional issue and has ramifications beyond Saxton’s own case.
I. Facts Hasan Saxton and Unique Robinson were engaged to be married. On
July 8, 2020, after spending the day together, the couple retired to their home.
Robinson did not feel good, so she laid down to sleep. Per Robinson’s
testimony, Saxton announced he was leaving to purchase weed. When
Robinson awoke, Saxton had yet to return so she phoned him. He informed her
he would be home shortly but inquired if anyone was at the home with her.
She answered no, the call ended, and she went back to sleep.
2 Robinson then testified she awoke to Saxton screaming at her,
demanding to know who had been in the house. He tore the covers off her and
stood over her— “breathing hard and mad[,]” his eyes “kinda [sic] crazy”—
Robinson answered several times that no one had been in the house. Saxton
was recalcitrant. Robinson testified he slapped her, accused her of lying and
demanded she have sex with him to prove her fidelity. Robinson refused.
Saxton then grabbed her throat with his hand, squeezing, so that, as Robinson
testified, she could not scream nor breathe. Saxton then released her, spun her
around and locked her neck in his forearm, pinning her to the bed. Once more
he squeezed. Robinson testified she feared she would pass out. In desperation,
she managed to bite Saxton on his arm, and he released her. Robinson grabbed
her phone and dialed 911. When she began reporting the incident to the
operator, Saxton left the room, and eventually the home.
Among the responding police officers were Officers Rogers and Copeland
of the Mayfield Police Department. Officer Copeland encountered Saxton on a
public street not far from his home. He detained Saxton, placed him in the
back of his cruiser, and drove to the home to further aid the investigation. After
arriving, Officer Copeland went to speak with another officer. He returned and
noticed that Saxton was leaning forward in his seat. Saxton stated he was
trying to stretch his legs. Officer Copeland did not believe him and removed
Saxton to another cruiser. He then performed a search of the backseat and
body cam footage shows that, approximately eleven seconds after beginning the
search, he found a bag of marijuana under the driver’s seat. The video is not
3 clear, but Officer Copeland testified the bag was only partially under the
driver’s seat and that his cruiser was designed with a “blocker” under the
driver’s seat to prevent items from being hidden from sight by the seat. At some
point, a black plastic container and a burnt cigar containing marijuana were
also allegedly found on Saxton in a search incident to arrest performed by
Officer Rogers. Officer Rogers never testified to this, however, and the only
definitive proof such a search incident to arrest occurred is a citation report
completed by Officer Rogers. Officer Copeland’s testimony was only that the
plastic container “may have been” found on Saxton in a search incident to
arrest, and he only testified to that after reading the citation report to refresh
his memory. The report stated, “A search of the patrol vehicle and Saxton’s
person incident to arrest also revealed a small plastic container with a burnt
marijuana cigar inside.” The Commonwealth, however, clearly believed the
plastic container had been recovered during Officer Copeland’s search of the
vehicle. After playing Officer Copeland’s body cam footage showing that search
to attempt to refresh his memory, Officer Copeland still testified that he could
not recall finding the plastic container.
At trial, a multitude of incidents occurred which form the basis for
Saxton’s appeal. We address each in more detail in our analysis below. But
generally, the morning trial began, as Saxton and his counsel attempted to
walk past the front row of jurors to their table, the Commonwealth’s
investigator intervened and told them to approach the table by another
direction. It seems after a brief back-and-forth between the investigator and
4 defense counsel, Saxton and counsel were able to get to their table as originally
planned. During trial, Saxton attempted to cross-examine Robinson as to
whether she was ever informed of her rights under Marsy’s Law. The trial court
prohibited the line of inquiry twice; once during the cross-examination itself
and second, after a written motion and arguments in chambers were heard the
second morning of trial. Saxton argues this was a denial of his right to effective
cross-examination.
Saxton also objected to the introduction of several pieces of evidence;
namely, eight DNA swabs and accompanying reports, as well as the plastic
container and marijuana cigar. Saxton did stipulate to one swab, taken from
his bloody left forearm. The stipulation included that there was an injury on
his left forearm, it was bloody and a swab was taken, and transported to the
relevant lab for testing. For the other DNA swabs, as well as the plastic
container and cigar, Saxton argues a fatal flaw at the inception of the chain of
custody—no one testified to collecting the drug evidence from his person or
taking the swabs from Saxton and Robinson. Thus, he claims a basic failure to
link him to the evidence at the foundation. Because of this, Saxton requests
reversal of his convictions for strangulation, tampering with physical evidence,
and his two PFO and possession convictions.
The jury convicted Saxton of strangulation and tampering with physical
evidence, recommending ten and five years in prison respectively. But finding
him guilty of being a persistent felony offender (second degree), the jury
enhanced the sentences to twenty and ten years, respectively. The jury then
5 recommended the sentences be served consecutively for a total of thirty years;
with the misdemeanor sentences all being served concurrently with the thirty-
year felony sentences. The trial court, however, reduced the sentence to twenty
years. Saxton appealed, and we now address the merits.
II. Analysis
A. Marsy’s Law and Denial of Effective Cross-Examination The first issue we address, because novel and most consequential,
regards Saxton’s allegation that Robinson’s testimony was coerced by threats of
the Commonwealth to charge Robinson with contempt of court if she did not
testify, which, if convicted, would necessarily impact her ability to regain
custody of her children.4 Importantly, Saxton frames this argument as
Robinson being forced to testify “under duress[,]” but not that Robinson was
forced to testify falsely or not testify at all. At the trial court, Saxton stated he
wished to investigate whether Robinson had been informed of her rights under
Marsy’s Law. Ky. Const. § 26A. The trial court prohibited that line of inquiry.
The next morning of trial, after filing a written motion, Saxton argued in
chambers
I should be able to inquire whether or not the victim was given her constitutional rights under Marsy’s Law in order to be able to consult with her about whether or not she was consulted as to how she wanted the case to proceed, whether she wanted the charges to go on, whether she wanted to go forward.
4 Robinson had been arrested at some point prior to Saxton’s trial. A special prosecutor had been appointed to handle Robinson’s case because of the conflict resulting from her being a testifying witness in this case. 6 Saxton then linked this to a larger issue of duress, wherein prior to trial
Robinson had expressed her feelings to Saxton that she was being “bullied” by
the Commonwealth and forced to testify against him. Trial counsel argued that
Robinson, by virtue of Marsy’s Law, had a “right to remain silent” in the same
manner as Saxton and that is what she wanted to investigate on cross-
examination.5 The trial court denied the motion and again prohibited that line
of questioning. Before proceeding with our analysis, we reiterate that a
witness’s credibility is always relevant. Myers v. Commonwealth, 87 S.W.3d
243, 246 (Ky. 2002). But there is no allegation that the Commonwealth coerced
Robinson to give false testimony, only that she was compelled to testify at all.
We will not analyze this issue under Marsy’s Law. That constitutional
provision explicitly states, “The accused shall not have standing to assert the
rights of a victim.” Ky. Const. § 26A. Moreover, it is only “[t]he victim, the
victim's attorney or other lawful representative, or the attorney for the
Commonwealth upon request of the victim [who] may seek enforcement of the
rights enumerated in this section . . . .” Id.6 Finally, “Nothing in this section or
any law enacted under this section shall be construed as creating: (1) A basis
for vacating a conviction; or (2) A ground for any relief requested by the
defendant.” Id. The plain, indubitable meaning of these three sentences is that
an accused defendant has no standing to assert the rights of his victim, and
5 This specific contention was not mentioned in the briefing before this Court,
and we will not address it. 6 It is also worth noting that the jury is not constitutionally empowered to
enforce the victim’s rights at the defendant’s trial either. 7 even if the victim’s rights are violated in the course of the criminal justice
process, said violation can never afford the basis for vacating a conviction on
direct appeal, a basis for collateral attack, or “any relief” whatsoever. We reject
the proposition that the defendant has a right to inquire into whether a victim
has been apprised of her rights under Marsy’s Law or that the defendant may
“consult” with the victim about whether those rights were being fulfilled to the
victim’s satisfaction during cross-examination, or indeed at any point in the
criminal justice process.
Saxton’s attempt to inquire into whether Robinson was informed of her
rights under the guise of witness credibility is nothing more than a subterfuge
to get around the explicit prohibitions of our constitution. In all cases, the
defendant has no valid interest to inquire into whether a victim has been
apprised of her rights under Marsy’s Law, or whether those rights are being
violated, because first, the constitution prohibits such a power being exercised
by the defendant; and second, because there is no relief available to the
defendant should a victim’s rights prove to be violated in any given case. We
cannot be clearer: the defendant has no authority to inquire into Marsy’s Law
matters and trial courts should not hesitate to squelch such a line of inquiry
from the defendant the moment it presents itself.
This does not mean, however, that the issue of whether Robinson’s
testimony was coerced cannot be analyzed under traditional rules. But because
the issue was framed under Marsy’s Law at the trial court, this argument is
unpreserved, and we review for palpable error. Only if there is a manifest
8 injustice will reversal of the conviction be warranted. RCr.7 10.26. “[T]he Sixth
Amendment right to confrontation must be analyzed whenever the accused is
prohibited from cross-examining a witness about his motive or bias.”
Commonwealth v. Armstrong, 556 S.W.3d 595, 602 (Ky. 2018). The right to
cross-examination is not absolute, however, and trial courts have wide latitude
to enforce reasonable limitations. Id. “To state a violation of the Confrontation
Clause, the defendant must show that ‘he was prohibited from engaging in
otherwise appropriate cross-examination designed to show a prototypical form
of bias on the part of the witness[.]’” Id. (quoting Delaware v. Van Arsdall, 475
U.S. 673, 680 (1986)).
There was no constitutional violation here because the use of the
coercive power of the state via subpoena to compel a witness’s presence at a
judicial proceeding is uncontroversial. It is in fact a guaranteed right. Ky.
Const. § 11. “To ensure that justice is done, it is imperative to the function of
courts that compulsory process be available for the production of evidence
needed either by the prosecution or by the defense.” United States v. Nixon, 418
U.S. 683, 709 (1974). Thus, even if Robinson did truly feel pressured or
“bullied” into testifying, that is the inherent nature of the subpoena power.8
Additionally, the line of inquiry Saxton sought to pursue per Marsy’s Law was
not “otherwise appropriate,” but rather constitutionally inappropriate. Nor
could it have revealed a “prototypical form of bias” on Robinson’s part because
7 Kentucky Rules of Criminal Procedure. 8 The word subpoena literally means “under penalty.” 9 being subpoenaed to testify does not in and of itself reflect on a witness’
credibility. It is a common practice throughout the Commonwealth. This is
especially true given Saxton has not alleged that Robinson was pressured to lie
on the stand. To the extent his argument might encompass a claim the
Commonwealth threatened Robinson with further prosecution, such an
argument is mere speculation and does not support the conclusion a violation
of Saxton’s right to confrontation occurred. Armstrong, 556 S.W.3d at 603. We
find no error in the trial court prohibiting Saxton from inquiring into
Robinson’s rights under Marsy’s Law.
B. Directed Verdict Rulings Next, Saxton argues there was insufficient evidence to sustain the
tampering with evidence charge and the strangulation charge. Both come as
arguments that the trial court erred in failing to direct a verdict in his favor.
“On appellate review, the test of a directed verdict is, if under the evidence as a
whole, it would be clearly unreasonable for a jury to find guilt, only then the
defendant is entitled to a directed verdict of acquittal.” Commonwealth v.
Benham, 816 S.W.2d 186, 187 (Ky. 1991). At the trial level, considering a
motion for directed verdict,
the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.
10 Id. On the tampering with physical evidence issue, Saxton argues our
recent case in Commonwealth v. James, 586 S.W.3d 717 (Ky. 2019) controls.
The Commonwealth argues Taylor v. Commonwealth, 987 S.W.2d 302 (Ky.
1998) controls. In accordance with our decision in Commonwealth v. Bell, __
S.W.3d __ 2022 WL 12196438 (Ky. 2022), Taylor is overruled as incompatible
with James. We, therefore, agree there was insufficient evidence to sustain a
tampering with evidence conviction. “[W]here a defendant merely drops, throws
down, or abandons drugs in the vicinity of the defendant and in the presence
and view of the police, and the officer can quickly and readily retrieve the
evidence, the criminal act of concealment or removal has not taken place.”
James, 586 S.W.3d at 731.
In this case, the bag of marijuana found in the police cruiser was placed
there in the presence of Officer Copeland, who observed Saxton’s movement in
the rear seat to drop the bag; the bag was only partially hidden from view by
the driver’s seat; and was easily recoverable as it only took approximately
eleven seconds for Officer Copeland to find the bag after beginning his search
of the vehicle. Additionally, Officer Copeland testified the cruiser had blockers
installed below the front row seats specifically to prevent items from being
concealed. This constitutes mere abandonment, not concealment, and cannot
predicate a charge of tampering with evidence under KRS9 524.100(1)(a). As
9 Kentucky Revised Statutes. 11 such, the conviction of Saxton for tampering with physical evidence and being
a persistent felony offender based on that conviction is reversed.
As to the strangulation charge, we first note that Saxton’s brief is filled
with alleged inconsistencies in Robinson’s account of the attack. But
inconsistency goes to credibility of a witness, and credibility determinations are
the prerogative of the jury. Ross v. Commonwealth, 531 S.W.3d 471, 476 (Ky.
2017). The jury believed her testimony that Saxton did strangle her by grabbing
her throat with his hand and by placing her in a headlock with his forearm to
her throat. In the first instance she testified she could not breathe or struggled
to breathe, and the second instance she testified she thought she would pass
out.
Strangulation in the first degree occurs when the defendant, without
consent, “intentionally impedes the normal breathing or circulation of the blood
of another person by: (a) Applying pressure on the throat or neck of the other
person. . .” or by blocking the nose or mouth. KRS 508.170(1)(a). “Impede” is
defined as “to interfere with the progress of.” Webster’s New Dictionary of the
English Language 259 (2001). It is more traditionally defined as “to hinder” or
“to obstruct.” Samuel Johnson, A Dictionary of the English Language 374
(Barnes & Noble Books 1994) (1756). Saxton’s testimony that she could not
breathe and that she felt she would pass out as a result of Saxton squeezing
her neck with his hand and forearm easily satisfies the elements required by
law thus, we find no error in the trial court’s refusal to grant a directed verdict
as a matter of law. Moreover, the trial court was required to take Robinson’s
12 account as true. Therefore, under the evidence as a whole, it was not clearly
unreasonable for the jury to find guilt.
C. Physical Evidence under KRE 901(a) Saxton argues unauthenticated evidence was improperly admitted
against him, specifically a black plastic container and burnt cigar with
marijuana, as well as eight DNA swabs and their test results. Evidentiary
questions are addressed for an abuse of discretion. Ross v. Commonwealth, 455
S.W.3d 899, 912 (Ky. 2015). “The requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in question is what its proponent
claims.” KRE10 901(a). The proponent of the evidence must demonstrate the
evidence at trial was the same as that involved during the events in question
and that it has not been materially changed. Ross, 455 S.W.3d at 912. For
drugs and drug paraphernalia—items which are fungible and not readily
identifiable or distinguishable—a stronger foundational showing is required
than for non-fungible or readily identifiable evidence, but a perfect chain of
custody is not required. Id. “Instead, the proponent need only show that ‘the
reasonable probability is that the evidence has not been altered in any material
respect.’” Id. (quoting United States v. Cardenas, 864 F.2d 1528, 1532 (10th
Cir. 1989)). Nonetheless, “[a] complete chain of custody of this evidence tracing
its possession from the time it was obtained from the defendant to its final
10 Kentucky Rules of Evidence. 13 custodian must be established or the samples may not be admitted.” Harrod v.
Commonwealth, 552 S.W.2d 682, 684 (Ky. 1977). “For purposes of
authentication, the condition of fact which must be fulfilled by every offer of
real proof is whether the evidence is what its proponent claims.” Hunt v.
Commonwealth, 304 S.W.3d 15, 39 (Ky. 2009).
i. The Plastic Container and Marijuana Cigar We agree the Commonwealth’s failure to have Officer Rogers testify that
he did in fact find the black container and marijuana cigar on Saxton’s person
is fatal to establishing a sufficient chain of custody. The Commonwealth has
failed to establish the necessary link between the real evidence offered and
Saxton at the foundation. Officer Copeland’s testimony was only that the
plastic container “may have been” found on Saxton in a search incident to
arrest, and he only testified to that after reading a citation report to refresh his
memory that was completed by Officer Rogers. Since Officer Copeland’s
testimony was qualified—“may have been”—it was in fact the citation report
which ended up being the only definitive “evidence” of how the plastic container
was found. Of course,
For the purpose of refreshing his recollection the party doing the examining (whether direct or cross) may show to the witness a pre- trial statement, but may not for that purpose introduce it in evidence or read it to the jury. The statement cannot be read under the pretext of refreshing the recollection of the witness.
Payne v. Zapp, 431 S.W.2d 890, 892 (Ky. 1968) (Emphasis added). That is
precisely what the Commonwealth had Officer Copeland do here—read the
citation report to the jury, ostensibly to refresh his memory, but said memory
14 was never refreshed. We must again note the Commonwealth originally
believed the plastic container was recovered by Officer Copeland in the police
cruiser. The testimony elicited that it may have been found in a search incident
to arrest was apparently a last resort, and perhaps explains why the
Commonwealth did not have Officer Rogers testify to whether he recovered the
plastic container and marijuana cigarette. But if true, that only underscores
our conclusion the Commonwealth has failed to sufficiently link the real
evidence to Saxton. The Commonwealth itself apparently does not know who
discovered the plastic container and cigar, when they were discovered, or how.
Because the Commonwealth failed to definitively link the real evidence with
Saxton by failing to have any police officer simply testify to recovering the
evidence from his person, we reverse the conviction for possession of drug
paraphernalia and the $100 fine.
As to the marijuana cigar, the issue is a red herring. Although allegedly
found inside the plastic container, it supported the possession of marijuana
charge. If it had been the only drug allegedly found in Saxton’s possession,
then reversal of the possession conviction would be required. But Saxton fails
to account for the fact that the bag of marijuana he abandoned in the police
cruiser also supports that possession charge as well.
No error in . . . the admission or the exclusion of evidence . . . is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order unless it appears to the court that the denial of such relief would be inconsistent with substantial justice.
15 RCr. 9.24. “A reviewing court should ask ‘whether the error itself had
substantial influence. If so, or if one is left in grave doubt, the conviction
cannot stand.’” Brown v. Commonwealth, 553 S.W.3d 826, 836 (Ky. 2018). We
do not have a “grave doubt” that admitting the cigar into evidence had a
substantial influence on the jury in light of the evidence that Saxton possessed
a bag of marijuana, which he abandoned in the police cruiser. Although we
have reversed his tampering with evidence conviction, that does not mean the
bag of marijuana as an evidentiary matter cannot support a possession charge,
a result similarly reached in Commonwealth v. James, 586 S.W.3d 717, 721-24
(Ky. 2019). The jury instruction—and Saxton has not made any argument
regarding any jury instructions—stated in pertinent part,
You will find the Defendant guilty of Possession of Marijuana under this instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
1. That in this county on or about July 8th, 2020 and within 12 months before the finding of the Indictment herein, he had in his possession a quantity of marijuana;
AND
2. That he knew the substance so possessed by him was marijuana.
The facts adduced at trial were that a bag of marijuana was recovered in the
police cruiser after Saxton had been detained inside it. Officer Copeland
testified that the bag was not present in the cruiser prior to his detaining
Saxton as he routinely searched his vehicle after a person had been inside it to
search for items or contraband. Moreover, Saxton must have possessed the bag
16 at one point in order for him to abandon it. Finally, Robinson’s testimony that
Saxton had told her he was leaving the house to go get marijuana, all support
the possession conviction.
Saxton has argued that the “green leafy substance” found in the bag was
never chemically tested to prove it was marijuana. But we rejected that
argument in Jones v. Commonwealth, 331 S.W.3d 249, 252 (Ky. 2011), noting
that virtually every court, state and federal, throughout the Union had similarly
rejected chemical testing as an absolute prerequisite for conviction of a drug-
related offense. Id. at 253. Here, Officer Copeland testified to his belief that the
bag contained marijuana. His testimony was sufficient compared to the
previous case where we sustained a conviction for a drug-related offense on the
testimony of a known drug user identifying the substance by eyesight, despite
a State Trooper contrarily testifying that laboratory analysis was necessary to
identify the substance. Miller v. Commonwealth, 512 S.W.2d 941, 943 (Ky.
1974).
ii. The DNA Swabs – Left Forearm and Two Buccal Standards As to the DNA swabs, Saxton’s hands and arms were swabbed, and
control swabs for Saxton and Robinson each were taken, as well as buccal
swabs for each. We decline to review the swabs of Saxton’s hands. These went
to the rape charge. Since the jury acquitted him on that charge, any error was
harmless. Butler v. Commonwealth, 516 S.W.2d 326, 328 (Ky. 1974). For
similar reasons, we decline to review the swabs for the right arm or control
swabs. The latter were not even tested so it cannot be said they improperly
17 influenced the jury. The right arm, though tested, had no relevance to the
attack since it was consistently maintained by the Commonwealth that
Saxton’s left arm had choked Robinson and was bitten by her. The
Commonwealth concedes in its briefing the right arm swab’s relevance to any
specific charge is unclear. But being irrelevant, we conclude its erroneous
admittance was harmless and did not substantially sway the result. Davis v.
Commonwealth, 620 S.W.3d 16, 31 (Ky. 2021).
As for the three remaining DNA swabs and test reports (the left arm swab
of Saxton and the two buccal swabs), it must first be noted that Saxton
stipulated at trial that his left forearm had an injury and there was blood, that
a swab was taken of the blood, and the swab was sent to the state lab.11 This
stipulation obviates any perceived deficiencies of the Commonwealth either in
not having a person testify when and where he or she collected the swab or as
to the chain of custody from collection to deliverance of the swab to the lab.
Saxton cannot stipulate that the swab was taken and sent to the lab, then
complain the chain of custody is incomplete due to lack of testimony about
how the swab was originally taken and sent to the lab.12 Stone Coal Corp. v.
11 The trial court erroneously told the jury the swab was delivered to the lab on July 9, 2020. The report states the Western lab received it on August 3, 2020. In any event, the discrepancy in the date goes to weight and credibility. It does not negate the substantive agreement reached by the parties pertaining to the existence of an injury on Saxton’s left arm, that the left arm was bloody, and a swab was taken of that blood and delivered to the lab. 12 At this point it is also worth noting that officer body cam footage does exist,
as the Commonwealth represented, showing the injury and the swab of Saxton being taken. It was to prevent this video being played in court that Saxton stipulated to the collection of the swab. 18 Varney, 336 S.W.2d 41, 42 (Ky. 1960) (finding stipulation that deposition could
be read into record precluded review of alleged error in allowing the deposition
to be read into record).
The problem to be resolved upon review is no one testified to collecting
the two buccal swabs of Saxton and Robinson, and these swabs were not
covered by the stipulation. Although the Commonwealth may have argued the
Saxton buccal swab was taken at the same time as the left forearm swab, the
stipulation read by the court to the jury did not encompass such a fact. The
stipulation clearly pertained only to the left forearm. But absent the two buccal
swabs, which were tested, there is no basis to establish the DNA found on
Saxton’s left forearm belongs to Saxton and Robinson.
Lyle Hall, the DNA analyst for the Kentucky State Police Crime Lab in
Frankfort, testified, “a buccal standard is where they swab the inside of your
cheek to get a DNA profile, so we know it came from that person. It would have
to be a blood standard or buccal standard.” Hall also testified the buccal swab
was a key part of determining the occurrence of a particular DNA profile in the
general population as it serves to rule out any possibility of extraneous DNA in
any given sample. In other words, Hall analyzed the left forearm sample and
concluded two people had contributed to the DNA mixture and comparing it to
the two buccal standards was able to determine that Saxton and Robinson
were those two contributors. He then concluded that, based on relevant United
States populations, he would expect to see the same DNA profile once in 16
sextillion tests.
19 We have previously cited our harmless error rule in RCr 9.24, and,
reviewing a non-constitutional claim, we will deem an error in the admittance
of evidence harmless “if we can say with fair assurance that the judgment was
not substantially swayed by the error.” Brown v. Commonwealth, 313 S.W.3d
577, 595 (Ky. 2010). “Our inquiry is not simply ‘whether there was enough
evidence to support the result, apart from the phase affected by the error. It is
rather, even so, whether the error itself had substantial influence. If so, or if
one is left in grave doubt, the conviction cannot stand.’” Id. (quoting Kotteakos
v. United States, 328 U.S. 750, 765 (1946).
The error below occurred when the trial court admitted the buccal
standards without any foundational testimony from any person that he or she
collected the buccal standards from Saxton and Robinson. Although we do not
require a perfect chain of custody, that rule does not apply when the
foundational link in the chain is lacking. Here, there was no testimony the DNA
swabs meant to establish that the DNA found on Saxton’s left forearm belonged
to him and Robinson were in fact taken from Saxton and Robinson prior to
being tested. This is a lack of foundation, pure and simple. Nor can we say this
error was harmless. Robinson testified to Saxton choking her and biting him to
escape. The improper DNA evidence substantiated her testimony. We have no
way of knowing how much the jury relied upon this improper evidence nor
whether without it they would have believed Robinson at all.
The Commonwealth has pointed to police body camera footage showing
Robinson with a hoarse voice as additional physical evidence confirming the
20 attack, but that is unpersuasive. Hoarseness of voice can be explained by the
two having an argument beforehand, which would be consistent with
Robinson’s own testimony. Thus, we have serious concerns the erroneous
admission of the buccal swabs substantially influenced the jury in determining
guilt on the strangulation charge. Consequently, we must reverse the
strangulation conviction as well as the PFO II conviction concomitant with it.
D. No Error in Failing to Declare Mistrial Finally, there is Saxton’s argument that the trial court erred for failing to
grant a mistrial due to the Commonwealth’s investigator confronting defense
counsel prior to voir dire in the presence of the venire. The investigator
presumptuously took it upon himself to prevent counsel from walking past the
first row of jurors and informed her she and Saxton had to get to their table by
another route. From Saxton’s arguments in chambers though, it seems he and
counsel walked to the table by their chosen route despite the interference. The
Commonwealth argued to the trial court that the confrontation was minor and
being dramatized by the defense. The Commonwealth told the court there were
no raised voices, and that they would not have even known the incident
occurred but for it happening in their line of sight. Saxton argues this
confrontation created an inherently prejudicial environment, calling for a
mistrial citing Holbrook v. Flynn, 475 U.S. 560 (1986), but notably defense
counsel never sought to voir dire the jurors on this incident.
Recently, in Deal v. Commonwealth, 607 S.W.3d 652, 663-65 (Ky. 2020),
we undertook to explain the Holbrook standard. But neither Deal, nor the
21 Supreme Court of the United States cases it relied upon are apposite here. Deal
addressed the issue of a video being shown of the defendant in custody and
wearing jail attire, an inherently prejudicial circumstance. Id. at 667. And all
the cases it relied upon for this holding dealt with routine, repetitive,
customary, and prolonged practices as opposed to single incidents beyond the
direction of the trial court. Holbrook, supra, at 570-71 (four additional
uniformed officers in first row during trial not inherently prejudicial); Deck v.
Missouri, 544 U.S. 622, 626 (2005) (routine use of visible shackles during guilt
phase unconstitutional); Estelle v. Williams, 425 U.S. 501, 512-13 (1976) (state
cannot compel a defendant over his objection to wear prison attire at trial). In
contrast, the complained of event below was a Commonwealth’s investigator
interrupting the progress of Saxton and his counsel to their table for only a few
moments. The Commonwealth’s cases in support of its argument are not
helpful in analyzing this issue either, as they deal with spectators wearing t-
shirts displaying sympathetic messages for the victim. Hammond v.
Commonwealth, 504 S.W.3d 44 (Ky. 2016); Allen v. Commonwealth, 286 S.W.3d
221 (Ky. 2009).
The facts presented by this case are more analogous to an outburst and
ought to be addressed under the well-established standards regarding
outbursts. “A mistrial is an extreme remedy and should be reserved for the rare
occasions in which is it manifestly necessary to protect fundamental fairness
and the rights of the parties involved.” Commonwealth v. Padgett, 563 S.W.3d
639, 651 (Ky. 2018). Moreover, we have found in the context of emotional
22 outbursts of a victim’s family members, that an admonition is “more than
sufficient to cure any possible prejudice” resulting from such outbursts.
Coulthard v. Commonwealth, 230 S.W.3d 572, 577 (Ky. 2007). In Boyd v.
Commonwealth, a juror committed an outburst during voir dire by suggesting
hanging should be brought back, which elicited the laughter of several other
jurors in the court room. 439 S.W.3d 126, 130 (Ky. 2014). We upheld the trial
court’s refusal to dismiss the venire, reasoning the trial court had properly
admonished the venire and there was no demonstration of actual prejudice. Id.
In Carter v. Commonwealth, the previous Court of Appeals upheld a trial court’s
refusal to grant a mistrial based upon the conduct of a sheriff and his deputy,
who were seated behind the defendant whilst he was testifying and laughing
and sneering at him. 128 S.W.2d 214, 217-18 (Ky. 1939). It concluded “[t]here
is no showing that the attention of the jury was attracted to them or that the
conduct complained of was of a nature calculated to in any wise prejudice or
influence the jury against appellant.” Id. at 218. In other words, no prejudice
was intended by the officers nor demonstrated by the defendant. It is
noteworthy, however, that the defendant related the trial court had
admonished the two officers and ordered them to sit in another area. Id.
“[W]here an admonishment is sufficient to cure an error and the
defendant fails to ask for the admonishment, we will not review the error.”
Coulthard, supra, at 578 (quoting Lanham v. Commonwealth, 171 S.W.3d 14,
28-29 (Ky. 2005)). The cases above demonstrate that admonishment is an
adequate remedy when dealing with an outburst. Here, the Commonwealth
23 conceded an admonishment might be appropriate, but Saxton did not agree
and instead sought a mistrial. Moreover, he has not shown actual prejudice
despite having the opportunity to do so during voir dire. Like in Carter, no
showing has been made that the Commonwealth investigator’s action was
meant to prejudice the venire or that the venire even noticed the incident.
Therefore, no basis exists to hold the venire was prejudiced to such a degree as
to make the subsequent trial inherently prejudicial. The court did not err in
refusing to declare a mistrial.
III. CONCLUSION For the aforementioned reasons, we reverse the tampering with evidence
conviction, the strangulation conviction, the PFO II convictions based upon
them, and the possession of drug paraphernalia conviction. We affirm the
possession of marijuana conviction. We remand to the trial court for further
proceedings consistent with this judgment.
All sitting. Minton, C.J.; Hughes, and Keller, JJ., concur. VanMeter, J.,
concurs in part and dissents in part by separate opinion in which Nickell and
Lambert, JJ., join.
VANMETER, J., CONCURRING IN PART AND DISSENTING IN PART:
While I concur in much of the majority’s well-considered opinion, I respectfully
dissent from the reversal of the strangulation conviction and its resulting PFO
conviction. Under RCr 9.24, we disregard errors in the admission or exclusion
of evidence unless denial of relief is inconsistent with substantial justice.
While the Commonwealth’s chain of custody on the buccal swabs may have
24 been insufficient, my view is that Robinson’s testimony, including her biting
Saxton’s left arm, together with the admitted bloody injury to his arm were
sufficient corroboration of the facts for which Saxton was convicted.
Nickell and Lambert, JJ., join.
COUNSEL FOR APPELLANT:
Erin Hoffman Young Sarah D. Dailey Assistant Public Advocate
COUNSEL FOR APPELLEE:
Daniel Cameron Attorney General of Kentucky
Jenny Lynn Sanders Assistant Attorney General