Jody Scott v. Commonwealth of Kentucky

• Court: Kentucky Supreme Court
• Decided: December 15, 2020
• Docket: 2019 SC 0348
• Status: Unknown

Opinion

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: DECEMBER 17, 2020 NOT TO BE PUBLISHED

Supreme Court of Kentucky 2019-SC-0348-MR

JODY SCOTT APPELLANT

ON APPEAL FROM PIKE CIRCUIT COURT V. HONORABLE EDDY COLEMAN, JUDGE NO. 18-CR-00289

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Jody Scott appeals as a matter of right1 from the Pike Circuit Court final

judgment sentencing him to twenty years’ imprisonment for his convictions of

nine counts of first-degree trafficking in a controlled substance. Scott’s sole

claim on appeal is that palpable error resulted from the prosecutor’s alleged

flagrant misconduct during closing argument. Finding no palpable error, we

affirm.

I. Factual and Procedural Background

From July 31, 2017 through September 13, 2017, a confidential

informant conducted a total of eight recorded undercover drug buys from Scott

on behalf of Kentucky State Police (“KSP”). On September 14, 2017, KSP

1 Ky. Const. § 110(2)(b). 1 detectives executed a search warrant of Scott’s home and discovered

incriminating evidence. Scott cooperated with police and called his supplier,

Lonnie Kerr, to have him bring over cocaine with the understanding that Scott

would sell it, as usual. Kerr was then arrested and later pled guilty.

During trial, Scott called Kerr to testify in his case-in-chief. Kerr testified

to two facts: (1) he received a call from Scott on September 14, 2017 and (2) he

lived about two miles from Scott. At this point, the trial court sua sponte called

a bench conference and inquired as to who represented Kerr. The trial court

then recessed so Kerr could consult with his counsel. Upon retaking the

stand, Kerr invoked his Fifth Amendment right against self-incrimination. The

court then excused Kerr from the witness stand.

The conduct which Scott takes issue with on appeal occurred during the

Commonwealth’s guilt phase closing argument, when the prosecutor

commented on the quality issues with the video and audio recording of Scott’s

sales to the confidential informant and how the cameras did not capture

everything perfectly. The prosecutor stated that the recordings are

corroborating evidence, as no witness was going to come in and testify to being

at Scott’s house and watching Scott sell drugs directly to the confidential

informant. The prosecutor then stated, “You saw it. His own supplier got on

the stand and wouldn’t say anything. Not me, I know nothing.” The

prosecutor remarked that the audio and video recording, albeit imperfect, is the

best documentation they have.

Scott did not object to the prosecutor’s remarks. He now claims those

remarks amounted to flagrant prosecutorial misconduct which resulted in

palpable error and requires reversal. We disagree. 2 II. Standard of Review

RCr2 10.26 provides that “[a] palpable error which affects the substantial

rights of a party may be considered . . . 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.” “Palpable error relief is available under RCr 10.26 only upon a

determination that manifest injustice has resulted from the error. ‘Manifest

injustice’ is ‘error [that] so seriously affect[s] the fairness, integrity, or public

reputation of the proceeding as to be ‘shocking or jurisprudentially

intolerable.’” Davidson v. Commonwealth, 548 S.W.3d 255, 261 (Ky. 2018)

(citations omitted).

III. Analysis

Prosecutorial misconduct is defined as a prosecutor’s “improper or

illegal” attempt to persuade the jury to wrongly convict or assess an unjustified

punishment. Noakes v. Commonwealth, 354 S.W.3d 116, 121 (Ky. 2011).

Appellate consideration of alleged prosecutorial misconduct focuses on the

overall fairness of the trial. Id. (citations omitted).

With respect to allegations of prosecutorial misconduct during closing

arguments, we note that counsel is afforded wide latitude during those

arguments. Padgett v. Commonwealth, 312 S.W.3d 336, 350 (Ky. 2010). “The

longstanding rule is that counsel may comment on the evidence and make all

legitimate inferences that can be reasonably drawn therefrom.” Id. (citations

omitted). This Court will reverse on grounds of prosecutorial misconduct in a

2 Kentucky Rules of Criminal Procedure. 3 closing argument “only if the misconduct was ‘flagrant’ or if we find all of the

following to be true: (1) the proof of guilt is not overwhelming, (2) a

contemporaneous objection was made, and (3) the trial court failed to cure the

misconduct with a sufficient admonition.” Dickerson v. Commonwealth, 485

S.W.3d 310, 329 (Ky. 2016) (citation omitted).

Scott does not argue that the three-prong test for non-flagrant

misconduct was met. Rather, he seeks reversal on grounds that the

prosecutor’s conduct was “flagrant.” In determining whether a prosecutor's

improper comments constitute reversible flagrant misconduct, we use a four-

part test: “(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. (citation omitted).

As to the first prong, the comment by the prosecutor here did not serve

to mislead the jury. Indeed, the prosecutor’s statement was accurate: no

witness testified to seeing Scott sell drugs to Kerr and Kerr refused to testify.

And in context, the prosecutor’s comments were more along the lines of an

explanation as to what weight to afford certain evidence. Further, Scott points

to no prejudice resulting from the prosecutor’s comment on evidence of record.

Secondly, the comment by the prosecutor was isolated. Third, while the record

is unclear as to whether the comment was made deliberately or accidentally, it

was at most an offhand, explanatory remark. Lastly, the evidence against Scott

was overwhelming: proof was presented that he sold drugs to a confidential

informant on numerous occasions, incriminating evidence was seized from his

4 home, and he admittedly cooperated with police to set up Kerr after police

searched his home.

As none of the Dickerson factors weigh in Scott’s favor, and considering

the totality of the prosecutor’s closing argument, we find that this single,

isolated offhand remark does not rise to the level of flagrancy so as to require

reversal. Scott has presented no legitimate reason to believe that the jury

convicted on anything but the evidence of his guilt. Finally, given that Scott

failed to contemporaneously object at trial, we are unable to say that palpable

error resulted.

IV. Conclusion

The judgment of the Pike Circuit Court is affirmed.

All sitting. All concur.

5 COUNSEL FOR APPELLANT:

Karen Shuff Maurer Assistant Public Advocate Department of Public Advocacy

COUNSEL FOR APPELLEE:

Daniel J. Cameron Attorney General of Kentucky

Kenneth Wayne Riggs Assistant Attorney General