Khalil Coleman v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: March 22, 2024
• Docket: 2022 CA 001040
• Status: Unknown

Opinion

RENDERED: MARCH 22, 2024; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2022-CA-1040-MR

KHALIL COLEMAN APPELLANT

APPEAL FROM KENTON CIRCUIT COURT v. HONORABLE PATRICIA M. SUMME, JUDGE ACTION NO. 21-CR-00294-001

COMMONWEALTH OF KENTUCKY APPELLEE

AND

NO. 2023-CA-0454-MR

APPEAL FROM KENTON CIRCUIT COURT v. HONORABLE PATRICIA M. SUMME, JUDGE ACTION NO. 21-CR-00294-001

COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING

** ** ** ** **

BEFORE: CALDWELL, CETRULO, AND JONES, JUDGES.

CETRULO, JUDGE: Appellant Khalil Coleman (“Coleman”) was convicted of

complicity to robbery in the first degree and sentenced to ten years of

imprisonment by the Kenton Circuit Court. In this consolidated appeal, Coleman

appeals his conviction, an order denying his Kentucky Rule of Civil Procedure

(“CR”) 60.02 motion, and an order denying his motion for a new trial.

Coleman asserts the following claims of error: (1) the trial court

failed to make sufficient inquiry regarding whether Joshua Clarey (“Clarey”) was

invoking his right not to testify and whether limited questioning was possible; (2)

the trial court permitted evidence regarding Coleman’s out-of-state arrest and

handgun possession, which was irrelevant and unduly prejudicial; (3) the trial court

permitted evidence that portrayed Coleman as a bad father, which was unduly

prejudicial; (4) the Commonwealth’s closing argument impermissibly shifted the

burden to the defense; (5) there was not sufficient evidence to convict Coleman of

complicity to robbery in the first degree; (6) the trial court improperly denied an

instruction on robbery in the second degree as a lesser included offense; (7) the

errors in this case amounted to cumulative error; (8) the trial court improperly

-2- denied Coleman’s motion for a new trial; and (9) the trial court improperly denied

Coleman’s CR 60.02 motion.

Despite finding some error, we affirm Coleman’s conviction and

affirm the July 2022 order denying a new trial. However, finding the trial court did

not fully address Coleman’s CR 60.02 motion, we reverse and remand for an

evidentiary hearing and/or additional findings related to this motion.

I. BACKGROUND

On February 15, 2021, Coleman drove south from the Milwaukee,

Wisconsin area with Clarey in the passenger seat. Coleman drove to Indiana and

picked up Johnny Hubbard (“Hubbard”). Hubbard and Coleman did not know

each other prior to this meeting.1 The three men then traveled to Elsmere,

Kentucky. Coleman parked on Bridgegate Court in Elsmere, and Hubbard exited

the vehicle. Hubbard walked up to a man standing outside a home two doors down

from where Coleman parked. Hubbard threatened the resident with a handgun and

the resident ran inside his home. With the help of others inside, the resident shut

the door and locked it. A person inside the home called 9-1-1. No shots were

fired, and no injuries were reported. Hubbard returned to the vehicle, and Coleman

drove away.

1 Both later testified to this fact.

-3- Shortly thereafter, police pulled over their vehicle and arrested all

three men without incident. Coleman, Clarey, and Hubbard were all charged with

attempted robbery. Clarey and Hubbard entered plea deals, and Coleman

proceeded to trial. Coleman, Hubbard, law enforcement officers, and the victims

of the attempted robbery testified at Coleman’s trial. Clarey was called by the

defense to testify, but after a bench conference with the prosecutor, Coleman’s

attorney, and Clarey’s attorney, Coleman’s counsel withdrew his request to have

Clarey testify.

During trial, Coleman and Hubbard’s testimonies conflicted regarding

the planning and attempted robbery. According to Hubbard, the plan to rob the

house transpired because he needed between $10,000 to $20,000 to help with his

mother’s legal problems. So, around February 7, 2021, Hubbard reached out to

Clarey’s uncle, his drug supplier, and asked for marijuana to sell. Hubbard

testified that instead of sending him the marijuana, Clarey’s uncle offered Hubbard

a “better opportunity,” a robbery that would garner him, individually, at least

$10,000 to $20,000. Hubbard testified that he did not know the address of the

target home, but Clarey knew the address2 and planned the robbery details.

2 The men went to the wrong house. Coleman stated that Clarey put the Bridgegate address in his navigation system; however, the address entered was not the address that Hubbard attempted to rob. The address in the navigation system was two houses further down the street.

-4- The targeted home supposedly belonged to someone in Clarey’s

uncle’s drug network and was supposed to have substantial amounts of drugs and

cash inside. Hubbard testified his role was to be a lookout during the robbery, but

once they drove past the house, Coleman decided that Hubbard should be the one

to “get in the house” because he would look less suspicious if seen by the

neighbors. Hubbard testified that Coleman handed him a loaded 10-millimeter

Glock handgun to use in the robbery. Hubbard stated that Clarey had a 9-

millimeter Glock handgun with a 50-round magazine. According to Hubbard,

those were the only two handguns in the vehicle.

Further, Hubbard testified that on Coleman’s directive, he exited the

vehicle and approached a resident of what he believed to be the target home. As he

approached, Hubbard put his hand on the handgun in his front waistband and told

the resident they needed to talk business in the house. The resident ran toward his

front door. Hubbard testified that he “froze up” after the resident ran, but Clarey

chased him. Hubbard stated that Clarey tried to catch the door before it closed, and

repeatedly kicked the front door in an attempt to get into the home. Hubbard

testified that he followed Clarey and also kicked the front door. After the residents

successfully locked the door, Hubbard stated that he and Clarey ran back to the car.

Hubbard got in the backseat; Clarey got in the front passenger seat; and Coleman

calmly drove away. After they got back into the vehicle, Hubbard stated that he

-5- handed the 10-millimeter handgun back to Coleman, and Clarey put his handgun in

a bag on the backseat next to Hubbard. Hubbard testified that the men decided to

return to the home later that day for another robbery attempt because they believed

the target home, being involved in the drug trade, would not call the police.

In complete contrast to Hubbard’s account, Coleman denied all

knowledge of the planned robbery. He testified that he thought he was driving

Clarey to Atlanta to sell a high-end watch. Both men had contacts in the Atlanta

area who could help sell the $20,000 watch that Clarey had purchased after

receiving a large legal settlement. Coleman believed Clarey was going to pay him

something for his assistance with a percentage of the watch sale. Coleman testified

that he used a vehicle rented by a friend for the trip, and Clarey rode in the

passenger seat. On the way south, Clarey asked Coleman to stop in Indiana to pick

up Hubbard and to drop him off in Kentucky with his kin. Coleman did not know

Hubbard and did not want to make the detour, but eventually agreed. After

Coleman picked up Hubbard, Clarey put the Kentucky destination in the

navigation application on Coleman’s phone. Upon arriving at the Kentucky

address, Hubbard got out, ostensibly to be with his family, and Coleman remained

parked to discuss the route to Atlanta and another possible unrelated detour with

Clarey. Coleman testified that he did not watch where Hubbard walked, and

Clarey did not exit the vehicle. Coleman testified that he thought Hubbard got

-6- back into his car after being dropped off because they had somehow gotten the

address incorrect, and Hubbard’s family did not live there. Coleman stated he

intended to drop off Hubbard at a nearby gas station, but before he could do so,

police stopped his vehicle.

During Coleman’s trial, the residents testified that they did not see

Coleman or Clarey. The residents only saw Hubbard and the vehicle. The resident

whom Hubbard approached later testified that he only saw “a black pistol,” an

“average looking gun.” When the Commonwealth asked the resident if the

handgun he saw had a 50-round magazine on it, he stated, “I couldn’t really tell

right off the bat.” Upon further questioning, the resident stated the handgun he

saw was “normal” but did not clarify if he did or did not see a 50-round magazine.

A law enforcement officer testified that the police immediately

responded to the resident’s 9-1-1 call. Shortly after receiving the call, an officer

spotted the vehicle, and the backseat passenger matched the description of the

assailant. The officer stated that when he first saw the vehicle, it looked like the

occupants were arguing with each other. Hubbard testified that Coleman and

Clarey were angry at him for freezing up and not getting in the house. Coleman

testified that he was angry and arguing with Hubbard and Coleman because both

had just admitted to him – after seeing the police cruiser – that they had active

warrants.

-7- An officer testified that police recovered two handguns during the

arrest. Police did not fingerprint either handgun. One handgun was located in

Coleman’s hip holster. Police stated that Coleman immediately alerted them to

this weapon. Coleman told police that he legally purchased the handgun, and he

had a conceal carry permit for it. This testimony was not contested. The second

handgun3 was a 9-millimeter Glock handgun with a 50-round magazine, and it was

located in a bag in the backseat of the vehicle. Coleman testified that Hubbard had

a bag when he got into the vehicle; Hubbard said he did not have a bag when he

got into the vehicle. Hubbard admitted that there were pictures on his phone of

him holding guns, but he said those weapons were all confiscated when his mother

was arrested on murder charges. Hubbard stated that he did not have access to, nor

possess, guns since the police confiscated those weapons months prior to the

attempted robbery.

Coleman, Clarey, and Hubbard were all charged with first-degree

robbery.4 Prior to Coleman’s trial, both Clarey and Hubbard pled guilty to second-

degree robbery.5 A condition of Hubbard’s plea deal was that he testify against

3 It is not clear to whom this handgun with a 50-round magazine was registered. 4 First-degree robbery carries a sentence of 10 to 20 years, with a requirement of serving at least 85% of the sentence. 5 Second-degree robbery carries a sentence of 10 to 20 years, with a requirement of serving at least 20% of the sentence.

-8- Coleman at his trial. As will be discussed further, Clarey did not testify at trial.

Neither Hubbard nor Clarey had been sentenced at the time of Coleman’s trial.

After a two-day trial, a jury found Coleman guilty of complicity to

first-degree robbery and not guilty of unlawful transaction with a minor. The jury

recommended the minimum sentence of ten years. Following the verdict, Coleman

filed a motion for a new trial, which the trial court denied. Coleman then filed a

CR 60.02 motion, which the trial court also denied. By order of this Court,

Coleman’s direct appeal (KY. CONST. § 115) was held in abeyance pending the CR

60.02 motion. We now address Coleman’s consolidated appeal. Further facts will

be developed as necessary.

II. ANALYSIS

A. There was sufficient evidence to convict Coleman of complicity to first-degree robbery.

“[T]o preserve an error based upon the insufficiency of the evidence

the defendant must move for a directed verdict at the close of the Commonwealth’s

proof and must renew his motion at the close of all evidence[.]” Commonwealth v.

Jones, 283 S.W.3d 665, 669 (Ky. 2009) (footnote and citation omitted). With each

motion, the defendant “must state specific grounds for relief and should identify

which elements of the alleged offense the Commonwealth has failed to prove.” Id.

“Merely moving summarily for a directed verdict or making a general assertion of

insufficient evidence is not enough.” Id. (citations omitted).

-9- Here, defense counsel moved for a directed verdict at the close of the

Commonwealth’s case but did not state grounds for that relief. At the close of

rebuttal evidence, the defense moved again to dismiss the case, but only cited

“significant doubt” as to Coleman’s guilt as the grounds. As Coleman failed to

preserve the sufficiency-of-the-evidence issue, we limit our review to palpable

error. Jones, 283 S.W.3d at 668 (citation omitted). Palpable error is one which

“affects the substantial rights of the party” and relief may be granted if that error

resulted in “manifest injustice.” Kentucky Rules of Criminal Procedure (“RCr”)

10.26.

Here, the jury was instructed on complicity (Kentucky Revised Statute

(“KRS”) 502.020) to attempted robbery first degree (KRS 515.020) and, in order to

find guilt, the jury needed to believe Coleman intended for Clarey or Hubbard to

take property and Coleman intended to aid them or stand ready to aid them. On

appeal, Coleman argues that the Commonwealth failed “to present sufficient

evidence of Coleman’s intent that Hubbard and/or Clarey commit a robbery.” He

asserts that a “review of the evidence presented does not support the argument that

Coleman had any idea what the two men were planning.”

For example, Coleman points out that none of the victims saw him.

Only three men were in the vehicle; Clarey did not testify, and Coleman’s

testimony directly refuted Hubbard’s. Coleman asserts that Hubbard’s testimony

-10- did not match his statements to investigators, and that Hubbard had “powerful

motive to cooperate with the Commonwealth.” Additionally, Hubbard testified

that there was no conversation about a robbery on the drive to Kentucky, and none

of the written communications between Coleman and Hubbard presented at trial

included “robbery” or “theft.” Finally, throughout his testimony, Coleman

vehemently denied knowledge or intent.

To rule on a motion for directed verdict, a trial court “must assume

that the evidence for the Commonwealth is true, but [reserve] to the jury questions

as to the credibility and weight to be given to such testimony.” Commonwealth v.

Benham, 816 S.W.2d 186, 187 (Ky. 1991). A defendant is entitled to a directed

verdict of acquittal only “if under the evidence as a whole, it would be clearly

unreasonable for a jury to find guilt[.]” Id. (citation omitted).

Here, the Commonwealth’s evidence, assuming it to be true, showed

Coleman acquired a rental car, drove Hubbard and Clarey to Elsmere, Kentucky,

where Hubbard (and possibly Clarey) exited the vehicle. After Hubbard threatened

to rob a resident with a handgun, he got back in the vehicle, and Coleman drove

away. Coleman admitted to driving the men to Elsmere and then driving away

after Hubbard reentered the car. Hubbard admitted to attempting to rob the

resident and threatening him with a handgun. Hubbard implicated Coleman in the

planning of the crime and stated Coleman handed him the handgun to use in the

-11- attempted robbery. The Commonwealth introduced text messages that indicated

Coleman needed money but no one introduced messages about selling a “watch” or

a trip to “Atlanta.”

In Kentucky, “[i]ntent can be inferred from the actions of an accused

and the surrounding circumstances. The jury has wide latitude in inferring intent

from the evidence.” Anastasi v. Commonwealth, 754 S.W.2d 860, 862 (Ky. 1988)

(citing Rayburn v. Commonwealth, 476 S.W.2d 187, 189 (Ky. 1972)). Here, a jury

could reasonably believe from this evidence that Coleman intended for Clarey or

Hubbard to take property from the resident and Coleman intended to aid them or

stood ready to aid them. The trial court did not err by denying Coleman’s motion

for acquittal based on the sufficiency of the evidence.

B. The trial court did not err in denying an instruction on second- degree robbery as a lesser-included offense.

The trial court instructed the jury on the elements of first-degree

robbery. Coleman does not fault the trial court’s instructions on that offense but

argues that the trial court committed reversible error in denying his request for

instructions on the lesser-included offense of second-degree robbery. We

disagree.

A person is guilty of second-degree robbery when “in the course of committing theft, he uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft.” [KRS 515.030(1).] A person is guilty of first-degree robbery when the elements

-12- of second-degree robbery are met and the prosecution proves that either the perpetrator:

(1) is armed with a deadly weapon,

(2) uses or threatens immediate use of a dangerous instrument, or

(3) causes physical injury to the victim. [KRS 515.020(1)].

Johnson v. Commonwealth, 327 S.W.3d 501, 505-06 (Ky. 2010) (emphasis added).

The Commonwealth presented evidence sufficient to find the incident

constituted second-degree robbery: the evidence showed that in the course of

committing theft, Hubbard threatened the resident with the immediate use of

physical force with the intent to accomplish a theft. Additionally, the

Commonwealth presented evidence sufficient to find the incident constituted first-

degree robbery: the evidence showed that in the course of committing theft,

Hubbard threatened the resident with the immediate use of physical force with the

intent to accomplish a theft, while armed with a deadly weapon.

An instruction on a lesser included offense is required only if, considering the totality of the evidence, the jury might have a reasonable doubt as to the defendant’s guilt of the greater offense, and yet believe beyond a reasonable doubt that he is guilty of the lesser offense.

Houston v. Commonwealth, 975 S.W.2d 925, 929 (Ky. 1998) (citing Wombles v.

Commonwealth, 831 S.W.2d 172, 175 (Ky. 1992)).

-13- Here, proof the perpetrator was armed with a deadly weapon

(Hubbard’s handgun) is the difference between second-degree robbery and first-

degree robbery. However, the use of a handgun was never contested. Coleman did

not argue that Hubbard did not threaten the resident with a handgun. He

maintained he did not have knowledge or involvement in the attempted robbery. If

the jury believed Coleman – that he was not involved in the attempted robbery – he

could have been found not guilty of both charges. If the jury did not believe

Coleman – and thought he had knowledge and/or involvement in the attempted

robbery – then the jury had enough evidence, as presented by the Commonwealth,

to find guilt of both charges. Here, an instruction on a lesser included offense was

not required because the jury could not have had reasonable doubt about the

greater offense yet believe beyond a reasonable doubt that he was guilty of the

lesser offense. See id. Therefore, the trial court did not err when it denied jury

instructions of the lesser-included charge of second-degree robbery.

C. Any possible error regarding Clarey’s Fifth Amendment rights was waived when Coleman withdrew his request to have Clarey testify.

On appeal, Coleman challenges the trial court’s treatment of Clarey’s

Fifth Amendment rights as an all-or-nothing proposition, which then prevented

Coleman from exercising his Sixth Amendment right to compel Clarey to testify as

a witness. Coleman argues that “[a] witness can be called to testify about relevant

-14- matters that do not involve the invocation of the privilege, or the scope of cross

examination could be limited to avoid the invocation of privilege.” Coleman

argues that the trial court should have conducted further questioning to ascertain

whether and upon what questioning Clarey intended to take the Fifth.

Clarey was put in the witness box before the jury was present in the

courtroom. However, the trial court held proceedings, with Clarey remaining in

the witness box, until Clarey’s defense counsel could be summoned. After

Clarey’s defense counsel arrived, the court asked Clarey’s attorney if he knew how

his client intended to testify. The conversation moved to a bench conference with

the prosecutor, Coleman’s defense counsel, and Clarey’s defense counsel. The

court aptly stated that Clarey could not use his Fifth Amendment rights regarding

facts he had already stated on the record, but he could “take the Fifth” for other

matters from his past. Clarey’s defense counsel appeared unaware of how Clarey

intended to testify, but stated Clarey had been warned against making statements

inconsistent with previous testimony.

Also, during the bench conference, there was disagreement as to what

Clarey had already stated on the record. It appeared that Clarey had already pled

guilty but had not elocuted as to the details of the crime nor been sentenced. It is

unclear from our record if Clarey implicated Coleman in the crime or merely

placed him as the driver. The trial court stated that, although Clarey “did not go

-15- into a great deal of detail” during his guilty plea, Clarey could “put himself in

jeopardy” if he testified at Coleman’s trial contrary to anything he had stated under

oath during that guilty plea. The trial court could not remember everything Clarey

testified to during his guilty plea but wanted his counsel to be aware of his risk of

perjury. The prosecutor and Coleman’s defense counsel then disagreed as to what

Clarey did or did not state during his guilty plea. The prosecutor asserted Clarey

implicated Coleman in the attempted robbery and admitted that they were “all in

on it.” However, Coleman’s counsel stated that he was present at Clarey’s guilty

plea and Clarey did not inculpate Coleman. According to Coleman’s defense

counsel, Clarey only placed Coleman as the driver and nothing more; he claimed

that saying Coleman was the driver was not the same as saying he had knowledge

of the crime.

Coleman’s counsel asked for a moment to confer with his client.

After a short conversation, Coleman’s counsel stated to the court, “my client will

agree to withdraw the request for Mr. Clarey to testify. That should resolve that

issue.” However, on appeal, Coleman asserts that the trial court should have

ascertained whether and upon what questioning Clarey might have “taken the 5th.”

In Combs v. Commonwealth, 74 S.W.3d 738 (Ky. 2002), the Supreme

Court indicated that the trial court should conduct a “preliminary inquiry” or “dry

run of [witness’s] testimony” to determine if limiting the scope of questioning

-16- could allow both the witness’s Fifth Amendment protections and the defendant’s

Sixth Amendment rights. The Court also found “it improper to simply assume that

[the witness] would invoke the privilege as to questions she was never asked.” Id.

at 744-45; see also McLemore v. Commonwealth, 590 S.W.3d 229, 236-40 (Ky.

2019);6 see also McRae v. Commonwealth, 635 S.W.3d 60, 66-67 (Ky. 2021).7 It

is argued that the trial court should have either held a “dry-run” questioning, or

minimally, sought further clarification from Clarey to determine what he intended

to testify to and if the scope could have been limited. See Combs, 74 S.W.3d at

744-45; McLemore, 590 S.W.3d 238-40; and McRae, 635 S.W.3d at 66-67.

However, this alleged error was waived when Coleman withdrew his

request to have Clarey testify. Forgoing the opportunity to question a witness is an

“invited error” that is not subject to appellate review. Gray v. Commonwealth, 203

S.W.3d 679, 686 (Ky. 2006); Quisenberry v. Commonwealth, 336 S.W.3d 19, 38

(Ky. 2011) (citing United States v. Perez 116 F. 3d 840, 845 (9th Cir. 1997))8

6 McLemore, 590 S.W.3d 238-40 (affirming Combs and reiterating the need for the trial court to move past speculation as to what the witness might testify to). 7 McRae, 635 S.W.3d at 66-67 (affirming Combs and reiterating that the trial court should use its discretion to allow, but limit, the scope of questioning to permit the witness’s Fifth Amendment protections and the witness’s Sixth Amendment rights to questioning). 8 In Perez, the U.S. Court of Appeals for the Ninth Circuit distinguished between a “forfeited” right and “waived” right. Perez, 116 F.3d at 845-46. A forfeited right is one that was not objected to at trial, not deliberately relinquished, and is reviewed only for plain error. Id. at 846. A waived right is one that was known to the defendant but abandoned, “intentionally relinquished,” and therefore unreviewable. Id. at 845. Our Supreme Court applied this Perez rule in Quisenberry, 336 S.W.3d at 38. In Quisenberry, the defendant asked for facilitation jury

-17- (“[I]nvitations that reflect the party’s knowing relinquishment of a right, are not

subject to appellate review.”). Here, Coleman clearly knew about his right to call

Clarey as a witness (as there was much conversation about it during a bench

conference), but advised his attorney to withdraw that request. As such, we find

Coleman waived his claims regarding Clarey’s testimony, or lack thereof, at trial.

D. The trial court abused its discretion by admitting into evidence a handgun confiscated from Coleman during an out-of-state arrest, but that error was harmless.

During cross-examination, the prosecutor asked Coleman about an

arrest in Wisconsin that took place months after the attempted robbery. In

response, Coleman explained that a letter informing him of his next court date was

sent to the wrong address, so he never received the notice and missed his court

date. As a result, the U.S. Marshals located him in Wisconsin, arrested him, and

confiscated a handgun found on his person at that time. The prosecutor asked,

Despite the fact that you’d just been arrested for a class B felony in Kentucky, you’re out on bond for that class B felony, robbery first degree charge, a very serious offense, with all the disruption in your life that this caused, you went back out and got another gun?

...

instructions to be included as a lesser included charge. Id. at 37. The jury found him guilty of facilitation, then he argued on appeal that the evidence did not support the finding of guilt as to facilitation. Id. However, our Supreme Court found that the defendant waived any claim that the evidence was insufficient as to facilitation because the defendant was the party who requested the facilitation jury instructions. Id. at 38 (“[The defendant’s] express representation to the trial court that the evidence of facilitation was sufficient, waived his right to claim on appeal that it was not.”).

-18- Did you or did you not go back out and arm yourself again?

To which Coleman answered, “Yes, sir. I did.”

Coleman’s counsel objected and argued this arrest was irrelevant to

the crime charged, the handgun was legally in Coleman’s possession,9 and

questioning about this handgun should not be allowed. The prosecutor argued that

it was relevant as character evidence, i.e., to show Coleman was not the upstanding

citizen he claimed to be, to show he was the type of person who commits crime.

The court ruled that the handgun “is obviously evidence” and admitted the

handgun into evidence.

This matter is properly preserved due to the defense’s relevancy

objection, and we review the trial court’s decision to admit this evidence for an

abuse of discretion. Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007)

(citation omitted). The test for abuse of discretion is whether the trial court’s

decision “was arbitrary, unreasonable, unfair, or unsupported by sound legal

principles.” Id. (internal quotation marks and citation omitted).

9 During cross-examination, the prosecutor did not challenge the truthfulness of Coleman’s recitation of the facts, e.g., the fact that the letter was sent to the wrong address; Coleman legally purchased and owned the handgun; Coleman possessed a current concealed carry permit; and at that time, his pretrial bond did not disallow gun possession (although it subsequently became a condition). In its appellee brief, the Commonwealth states that Coleman admitted his Wisconsin handgun possession was in violation of his bond conditions, but the record does not support that statement. Coleman testified that he had no knowledge of a bond condition preventing gun possession at that time, and the Commonwealth did not put forth any evidence of such a bond restriction.

-19- On appeal, Coleman argues the trial court should not have permitted

the prosecutor to question Coleman about the post-arrest handgun purchase

because it was irrelevant and prejudicial.10 The Commonwealth asserts that it

questioned Coleman on the stand about the post-arrest handgun purchase to refute

the defense’s portrayal of Coleman as an upstanding citizen and social-justice

activist.

Here, the handgun later confiscated in Wisconsin should not have

been admitted because it was not relevant. See KRE 402. It was not relevant

because it did not “hav[e] any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than

it would be without the evidence.” See KRE 401. The Commonwealth was not

attempting to connect the handgun confiscated in Wisconsin to any element of the

attempted robbery in Kentucky; the Commonwealth was using the confiscated

handgun to show Coleman had the propensity to arm himself with handguns. The

10 Questions involving the Wisconsin arrest resulted in two admissions: the handgun confiscated in Wisconsin and the character testimony. The briefs on appeal conflate those two admissions. On appeal, Coleman briefly notes the dual admission: “The trial court abused its discretion in allowing the introduction of this evidence, both testimonial and physical.” However, Coleman’s legal argument, relying almost solely on Harris v. Commonwealth, 384 S.W.3d 117, 123 (Ky. 2012), appears focused on the handgun admission alone, not the testimonial admission. In this section, Coleman does not mention Kentucky Rule of Evidence (“KRE”) 404(a) (excluding, with exceptions, character, or trait evidence) or KRE 404(b) (excluding, with exceptions, testimony about prior bad acts and propensity arguments). As Coleman focuses on the handgun admission, so shall we. Indeed, we cannot create an argument for an appellant; Kentucky Rule of Appellate Procedure (“RAP”) 32(A)(4) requires the appellant to present a legal argument for our review.

-20- prosecutor asked Coleman, “Did you or did you not go back out and arm yourself

again?”

Further, “[w]eapons that are known to have no connection to the

crime . . . are generally not admissible.” Harris v. Commonwealth, 384 S.W.3d

117, 123 (Ky. 2012) (citing Major v. Commonwealth, 177 S.W.3d 700, 710-11

(Ky. 2005)). In Harris, the defendant was found guilty of murder. Id. at 122.

During the trial, the court admitted into evidence two handguns the defendant

owned, which were similar to the murder weapon but not used to commit the

crime. Id. The trial court admitted the two handguns – not because they were

connected to the crime alleged – but, rather, “on the grounds that they tended to

show [the defendant] preferred and was familiar with this type of weapon.” Id. On

appeal, our Supreme Court stated that in order for weapons to be admitted, there

needed to be a nexus between the weapons and the crime being alleged. Id. at 123.

“Weapons may be admitted where there is a possible connection to the crime but

that connection is not definitively established.” Id. By way of example, the Court

cited three cases in which there was the requisite connection:

In Sweatt v. Commonwealth, 550 S.W.2d 520 (Ky. 1977), the Court admitted a gun found in the defendant’s bedroom that matched the victim’s description of the gun used in the crime, though the gun could not definitely be identified as the weapon used in the crime. In Barth v. Commonwealth, 80 S.W.3d 390 (Ky. 2001), the Court admitted wooden window slats whose size and shape matched marks on the victim’s body, though the victim

-21- was blindfolded during the attack and could not identify the weapons used. And in Grundy v. Commonwealth, 25 S.W.3d 76 (Ky. 2000), the Court admitted a piece of concrete the victims claimed to have found near the scene of the crime, though it could not be conclusively ascertained the concrete was used in the crime. In all of these cases, it was possible the weapon was used in the crime and there was sufficient identification and nexus to justify admitting the weapon.

Id. However, the handguns that the prosecution attempted to admit in

Harris had no nexus or connection to the crime. Id. at 124. Therefore, the Court

ruled their admission was improper. Id. There, the admitted handgun evidence

was “evidence of ownership and nothing more, certainly not a personal habit that

was relevant to proving his conduct on a particular occasion.” Id. The Court

stated that “in cases where it is shown the weapon was not used in the crime, the

weapon is irrelevant and, consequently, inadmissible.” Id. at 123 (citing

Commonwealth v. Marshall, 743 A.2d 489, 492 (Pa. Super. Ct. 1999)).

Similarly, the handgun on Coleman’s person, which law enforcement

in Wisconsin subsequently confiscated, was in no way connected to the

February 15 attempted robbery. As in Harris, this handgun was irrelevant to the

crime alleged and should not have been admitted at trial.

However, our analysis next turns on whether this error was harmless;

RCr 9.24 requires us to disregard harmless error. Harmless error is that which

“would be inconsistent with substantial justice” and affects the “substantial rights

-22- of the parties.” RCr 9.24. This requires us to determine “with fair assurance that

the judgment was not substantially swayed by the error.” Winstead v.

Commonwealth, 283 S.W.3d 678, 689 (Ky. 2009) (citation omitted). “Our inquiry

is not simply whether there is 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.” Ordway v. Commonwealth, 391 S.W.3d 762, 774 (Ky. 2013).

In Harris, our Supreme Court found that, although the admission of

the handguns was error, it was harmless because of the breadth of additional

evidence to support the jury’s finding of guilt. Harris, 384 S.W.3d at 124-25. The

crime in Harris had an eyewitness who had personal knowledge of the alleged

shooter; the defendant was on a surveillance video in the vicinity of the shooting;

and another witness testified the defendant told him he had shot the victim. Id. at

125. The Court concluded that the judgment “was not substantially swayed by the

admission of the handguns, and the error is therefore harmless.” Id.

Here, while we certainly do not have the same breadth of evidence as

in Harris, we cannot say with fair assurance that the judgment was substantially

swayed by the error. See Winstead, 283 S.W.3d at 689. The jury was not led to

believe this handgun confiscated in Wisconsin was connected to the attempted

robbery of February 15. Also, this handgun admission was not the sole connection

-23- between Coleman and guns. Prior to the improper handgun admission, Coleman

testified that he purchased guns legally and generally carried them on his person in

a hip holster. The jury saw bodycam video reflecting his revelation to police of his

concealed carry permit. Admission of this handgun later confiscated in Wisconsin,

while not relevant, confirmed gun ownership to which he had already admitted. As

such, the jury was not likely swayed by the improper admission of this handgun

evidence. Thus, we find this error was harmless because it did not affect

Coleman’s substantial rights. See RCr 9.24. We can say with fair assurance that

the judgment was not substantially swayed by the error. See Winstead, 283 S.W.3d

at 689; see also Ordway, 391 S.W.3d at 774.

E. The trial court did not err by allowing testimony about Coleman’s familial relationships.

Next, Coleman argues the trial court erred by allowing unduly

prejudicial evidence that portrayed Coleman as a bad father. While Coleman was

testifying, the prosecutor asked him questions about the timing of his trip by

walking him through his text messages to Clarey, and messages to his daughter’s

mother. The prosecutor asked whether Coleman was going to miss his daughter’s

birthday. Coleman stated that he wanted to be back in time for her birthday but

brought a present to his daughter’s house before he left. Coleman stated that he

arrived at his daughter’s mother’s house and asked over text if his daughter could

come out of the house so he could give her a present and a hug. His child’s mother

-24- stated that the child was sleeping, and she did not want to wake her. A

disagreement over text ensued, and Coleman left the present at the front door.

After this admission, the Commonwealth continued to ask questions about this

argument; Coleman’s counsel objected; and the parties approached the bench.

At the bench conference, Coleman’s counsel stated, “He’s asked and

answered. Seems like beating a horse to death here.” The prosecutor replied that

Coleman was avoiding answering the question directly, but Coleman’s counsel

disagreed. The trial court asked the prosecutor about the line of questioning. The

prosecutor responded that he was trying to show that Coleman was “so desperate

for money” that he was planning to skip Valentine’s Day and was willing to miss

his daughter’s birthday. The trial court overruled the objection and told the

prosecutor, “You’ve made your point,” but allowed the prosecutor to ask another

follow-up question. At no point during the bench conference did Coleman’s

attorney make an argument regarding the prejudicial effect of the questioning.

Now, Coleman raises a new rationale: that this line of questioning

was unduly prejudicial and inadmissible character evidence. Though Coleman’s

counsel did timely object, counsel did so because the question had been asked and

answered. A party claiming error on appeal may not present a different argument

from what was raised at the trial court. Elery v. Commonwealth, 368 S.W.3d 78,

97-98 (Ky. 2012) (citation omitted). As such, we must limit our review of this

-25- claim for palpable error. Id. at 98. Again, palpable error is one which “affects the

substantial rights of the party” and relief may be granted if that error resulted in

“manifest injustice.” RCr 10.26.

We cannot conclude that the Commonwealth’s questions regarding

the timing of Coleman’s trip south, and the events he may or may not have missed

while gone, resulted in manifest injustice. As the Commonwealth correctly argues,

evidence showing Coleman’s need to make money was relevant as to motive to

commit the robbery and was admissible under KRE 404(b). See Meredith v.

Commonwealth, 164 S.W.3d 500, 506 (Ky. 2005) (concluding that evidence of the

defendant’s unpaid child support was admissible pursuant to KRE 404(b) to show

his motive to commit robbery). We cannot say that this line of questioning was

unduly prejudicial as that knife could have cut both ways. On one hand, it showed

Coleman was willing to miss events important in his daughter’s life, but on the

other hand it showed that he attempted to see his daughter before he left town and

left her a present. Keeping our focus on the law, and not parenting preferences, we

cannot find this testimony to be more prejudicial than probative. See KRE 403.

We find no palpable error in this evidence because it did not result in manifest

injustice.

-26- F. The prosecutor improperly shifted the burden of proof during closing arguments, but that error is not reversible.

During the closing arguments, the prosecutor argued that the lack of

evidence was evidence. The prosecutor stated, “I’m not suggesting it’s their

burden; it’s not, it’s my burden,” then continued to shift the burden. The

prosecutor stated:

There is no corroboration; there is no mention of a watch. There are tons of unanswered questions like what to do with Johnny Hubbard. But, the defense would just have you believe that you have to follow this convoluted story that doesn’t have corroborating evidence, that should exist if it were true they want you to believe it because they want you to believe that Mr. Coleman is an upstanding member of the community that he is involved in social justice, and that he works with kids and he does volunteer services has a company and goes to schools and maybe he does, I don’t know. What I do know is that they have not called a single witness that can verify or corroborate statements that have only been made by []Coleman. Not a single person has traveled down here from Milwaukee and taken this witness stand and verified yes, he is an upstanding member yes he is a leader in our community, yes he is a part of the social justice movement. I’m not knocking any of those things. I’m not knocking social justice. I’m not knocking people who work with kids if he’s actually doing that, that’s great, but I put to you that they’re the ones that claimed that’s why you should believe him yet they haven’t brought a single person to corroborate Mr. Coleman’s testimony[.]

Coleman’s counsel objected, arguing “you can’t bring witnesses down

just for collateral purposes.” Coleman’s counsel did not specifically object due to

-27- the prosecutor’s burden-shift; however, that shift is the foundation of the argument

on appeal.11

[KRS] 500.070 states that “[t]he Commonwealth has the burden of proving every element of the case beyond a reasonable doubt . . . .” Further, “[a]s the presumption of innocence mandates that the burden of proof and production fall on the prosecution, any burden-shifting to a defendant in a criminal trial would be unjust.” Butcher v. Commonwealth, 96 S.W.3d 3, 10 (Ky. 2002). In reviewing a claim of an improper closing argument, this Court must keep in mind “the wide latitude we allow parties during closing argument,” Dickerson v. Commonwealth, 485 S.W.3d 310, 331 (Ky. 2016), and must consider the closing argument as a whole, Miller v. Commonwealth, 283 S.W.3d 690, 704 (Ky. 2009).

Mulazim v. Commonwealth, 600 S.W.3d 183, 194 (Ky. 2020).

Here, the prosecutor essentially argued in closing that Coleman

needed to prove his innocence: he needed to present witnesses showing he was a

social activist; he needed to demonstrate he was an upstanding member of his

community; he needed to corroborate his own testimony in order for it to be

believable. Based on these closing remarks, the jury could have assumed that

Coleman had a duty to prove his innocence through witness testimony, instead of

11 Again, a party claiming error on appeal may not present a different argument from what was raised at the trial court. Elery, 368 S.W.3d at 97-98 (citation omitted). When an issue is not properly preserved in this manner, we limit our review to palpable error. Id. at 98. Palpable error is one which “affects the substantial rights of the party” and relief may be granted if that error resulted in “manifest injustice.” RCr 10.26. However, here, this palpable error review is integrated into the prosecutorial misconduct analysis below. See Brafman v. Commonwealth, 612 S.W.3d 850, 861-63 (Ky. 2020).

-28- the prosecutor bearing the burden of proving his guilt beyond a reasonable doubt.

Therefore, the burden-shift was improper. However, such shift is reversible only if

proof of the defendant’s guilt was not overwhelming, if defense counsel objected,

and if “[t]he trial court failed to cure the error with a sufficient admonishment to

the jury.” Barnes v. Commonwealth, 91 S.W.3d 564, 568 (Ky. 2002) (citations

omitted).

First, proof of Coleman’s guilt was not overwhelming. The jury did

have sufficient evidence for a finding of guilt because, as discussed previously,

Hubbard admitted to the elements of first-degree robbery, and Coleman drove

Hubbard to and away from the scene of the attempted robbery. The jury could

have simply believed Hubbard and not Coleman. And yet, this evidence is “not

overwhelming.” Coleman’s guilt was established by Hubbard’s testimony and not

much else. For example, the residents did not see Coleman, Clarey did not testify,

and the police did not fingerprint the handguns found in the vehicle on

February 15. Therefore, Hubbard’s fingerprints were not found on the handgun

taken from Coleman’s waist holster – to prove Hubbard used that handgun during

the attempted robbery – and Coleman’s fingerprints were not found on the

handgun located in the bag in the backseat. Further, evidence showed Clarey, not

Coleman, searched for the Elsmere address prior to leaving Milwaukee. The

Commonwealth admitted that Clarey, not Coleman, showed Hubbard a picture of

-29- the man they were supposedly going to rob. While the prosecutor spent time

discussing Coleman’s phone, there were no text messages from Coleman

discussing a robbery, theft, drugs, or Kentucky.

However, the absence of a pertinent objection – a specific burden-

shift objection – is crucial to our Barnes analysis. The Barnes conditions require

an opportunity for the trial court to cure through admonition; implicit in that

requirement is the need for the objection to be timely and on-point, in order for the

trial court to have that opportunity to fashion a remedy. See Winstead, 283 S.W.3d

at 688 (finding the defendant was not entitled to relief due, in part, because the

objection was neither timely nor specific and “did not direct the trial court’s

attention to the ground of objection advanced on appeal”); see also Lanham v.

Commonwealth, 171 S.W.3d 14, 29 (Ky. 2005) (characterizing an objection

without a request for an admonition as “incomplete,” and noting that a defendant

must “ask for a remedy in order to get the remedy”); see also Robinson v.

Commonwealth, No. 2009-SC-000278-MR, 2010 WL 3722789, at *4 (Sep. 23,

2010).12 Here, Coleman did not object to the burden-shift, thereby failing to give

the trial court the opportunity to rule on those grounds or correct through

admonition. While Coleman’s guilt was not overwhelming, the prosecutorial

12 This case is not published; therefore, it is not binding precedent. RAP 41. We cite to it merely as persuasive because it is more factually similar to the situation before us than other published decisions we reviewed.

-30- misconduct does not warrant reversal under Barnes, as there was not a relevant

objection.

Furthermore, the misconduct was not flagrant. Barnes, 91 S.W.3d at

568 (citations omitted). To determine if the misconduct was flagrant, the Court

weighs four factors:

(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. We look at the claimed error in context to determine whether, as a whole, the trial was rendered fundamentally unfair.

Brafman v. Commonwealth, 612 S.W.3d 850, 861 (Ky. 2020) (citations omitted).

Applying Brafman, the prosecutorial burden shift may have misled the

jury, but, likely not for long. Shortly after closing arguments, the jury was

presented with instructions, which clarified the jury’s duty. Specifically, Jury

Instruction No. 2 stated that

The law presumes a defendant to be innocent of a crime, and the indictment shall not be considered as evidence or as having weight against the defendant. You shall find the defendant not guilty unless you are satisfied from the evidence alone, and beyond a reasonable doubt that he is guilty. If upon the whole case you have a reasonable doubt that the defendant is guilty, you shall find him not guilty.

Finally, the remarks were isolated to closing arguments and were not

emphasized throughout the trial. The improper burden-shift comments appeared to

-31- be unintentional as they followed an admission by the Commonwealth that it

retained the burden. The prosecutorial misconduct was not flagrant, did not render

the trial fundamentally unfair, and therefore does not warrant reversal.

G. We decline to find cumulative error.

On appeal, Coleman argues the cumulative effect of the preceding

errors was to render his trial fundamentally unfair.13 This was largely a case in

which the jury was asked to weigh the credibility of Coleman against Hubbard as

to intent and knowledge.

Admission of irrelevant evidence was harmless. The prosecutor

improperly shifted the burden of proof during closing arguments, but that error was

not reversible and did not render the trial fundamentally unfair. Cumulative error

is “the doctrine under which multiple errors, although harmless individually, may

be deemed reversible if their cumulative effect is to render the trial fundamentally

unfair.” Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010).

We do not find that Coleman’s trial was fundamentally unfair.

“Although errors crept into this trial, as they inevitably do in a trial . . . they did

13 Coleman also argued that “[t]he acquittal on one charge demonstrates that the jury did believe part of Coleman’s testimony, and they would have believed all of it but for the preceding errors.” We note this statement is not necessarily accurate. Both Hubbard and Coleman testified that they did not know each other prior to Hubbard getting into the car on February 15. As such, the jury could have believed Hubbard, Coleman, or both, in determining Coleman was not guilty of an offense that required him to have knowledge of Hubbard’s age (KRS 530.065).

-32- not, either individually or cumulatively, render the trial unfair.” Brown, 313

S.W.3d at 631.

For the foregoing reasons, we affirm Coleman’s conviction and

sentence.

H. The trial court did not err in denying Coleman’s motion for a new trial.

Following the trial, the defense filed a motion for a new trial

requesting “all witnesses [] be permitted to testify without threat of prosecution.”

Coleman stated that Clarey’s plea agreement included language that prevented him

from testifying at Coleman’s trial. Moreover, he argued:

At the Coleman trial, [] Coleman was deprived of his right to call witnesses in his favor by the threats made against a witness with exculpatory evidence. [] Coleman did not know how [] Clarey would testify when he called him to the stand. However, it was made quite clear in front of the Court that [] Clarey could not offer exculpatory testimony or he would face additional charges which gave the impression that no exculpatory evidence could be obtained from [] Clarey. It is now known that the contrary is true. [] Clarey could have, in fact, provided exculpatory evidence which may very well have persuaded the jury that [] Coleman was not guilty of the charge of which he was convicted.

With this motion, Coleman attached a handwritten statement that was

titled “Affidavit Statement” and signed by Clarey. In that statement, Clarey

explained that he lied to Coleman about the robbery and Coleman was unaware of

the robbery plan. The Commonwealth opposed the motion and stated that Clarey’s

-33- plea agreement did not prevent him from testifying at Coleman’s trial. The

Commonwealth challenged the characterization of Clarey’s handwritten statement

as an “affidavit” and argued the statement did not qualify as newly discovered

evidence.

Next, Coleman filed a supplement and claimed that Clarey’s plea

agreement “deliberately suppressed exculpatory evidence,” a clear Brady14

violation. Coleman attached to that supplement Clarey’s CHIRP15 activity – copies

of text messages sent by Clarey while in jail through a monitored system – that

exculpated Coleman. Additionally, Coleman argued that Clarey’s handwritten

statement did legally qualify as newly discovered evidence. Finally, Coleman

argued that improper threats and intimidation occurred during the Fifth

Amendment bench conference held during Coleman’s trial which essentially

forced Clarey not to testify, and this resulted in a violation of Coleman’s

constitutional rights.

14 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). “In Brady, the United States Supreme Court held that ‘the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.’” Commonwealth v. Parrish, 471 S.W.3d 694, 697 (Ky. 2015) (quoting Brady, 373 U.S. at 87). 15 The Commonwealth stated, Jail (CHIRPS) are effectively text messages inmates use to communicate with friends and relatives on the outside. Every inmate has access to the system, which is maintained by a communications contractor doing business with the detention center.

-34- The Commonwealth filed a response in opposition arguing that

Clarey’s plea agreement “neither required [Clarey] to testify against his co-

defendants, nor prohibited [him] from testifying either.” The Commonwealth

argues preservation concerns in Coleman’s argument – specific to the Fifth

Amendment bench conference during Coleman’s trial – due to Coleman’s

withdrawal of his request for Clarey to testify. Further, the Commonwealth

challenged the admissibility of Clarey’s CHIRPS messages and the weight they

should carry if deemed admissible.

The trial court entered an order denying the motion without an

evidentiary hearing. The court denied that any threats or impropriety occurred

during the Fifth Amendment bench conference in Coleman’s trial. The trial court

admitted there was a “distinct possibility” that Clarey overheard the bench

conference but that “[a]s Clarey was leaving the witness stand he did not show any

signs of being intimidated or threatened.”

Additionally, the trial court stated it reviewed the CHIRPS messages.

The court acknowledged the Commonwealth was required to turn over exculpatory

evidence to the defense, but taking the Commonwealth’s statement as true, stated

that the Commonwealth did not have the CHIRPS prior to trial and therefore could

not have turned them over to the defense. The court stated that either party could

have obtained the CHIRPS, and the Commonwealth was not obligated to provide

-35- them to the defense. As such, the trial court ruled that there was no Brady

violation, and the CHIRPS were not newly discovered evidence because the main

exculpatory CHIRP (“bro is innocent of everything”) was actually dated prior to

Coleman’s trial. Finally, the trial court found Clarey’s handwritten statement to be

unpersuasive and “untrustworthy.”

This Court will “review the trial court’s denial of [an] Appellant’s

new trial motion for abuse of discretion.” Hall v. Commonwealth, 337 S.W.3d

595, 613 (Ky. 2011) (internal quotation marks and citation omitted).

On appeal, Coleman argues the Commonwealth had a duty under

Brady to obtain and disclose Clarey’s CHIRPS. He challenges the trial court’s

finding that the Commonwealth was not obligated to turn over the messages

because those CHIRPS could be obtained by either party. Coleman argues that the

Commonwealth can be imputed with constructive knowledge of materials from

other government agencies, including the police, and the prosecutor had a duty to

learn of the CHIRPS messages and to share them with the defense.

Coleman argues that the trial court abused its discretion in denying his

motion for a new trial because there was “a reasonable probability that Coleman

would have been acquitted if he had received the CHIRPS pretrial.” Under Brady,

a violation of a defendant’s due process rights occurs when the prosecution

withholds evidence that tends to exculpate the accused. Brady, 373 U.S. at 87-88.

-36- Our Supreme Court has clarified that “Brady concerns those cases in which the

government possesses information that the defense does not and the government’s

failure to disclose the information deprives the defendant of a fair trial.” Bowling

v. Commonwealth, 80 S.W.3d 405, 410 (Ky. 2002). Brady is rooted in principles

of “fair disclosure and does not create the right to discovery in a criminal trial.” Id.

As such, if the defense “could have – without the Commonwealth’s assistance or

permission” – discovered the evidence, there is no Brady violation. Id.

Here, the Commonwealth responded that inmate CHIRPS are

available to anyone with an open records act request to the jail, or by issuing a

subpoena to the jail. Coleman did not contest that fact, and it was repeated in the

trial court’s order denying Coleman’s motion for a new trial. If Coleman could

have obtained the CHIRPS from the jail at any time before, during, or after the

trial, it was not an abuse of discretion for the trial court to find that the CHIRPS

did not constitute a Brady violation. Moreover, we note, “reversal is required only

where ‘there is a “reasonable probability” that, had the evidence been disclosed to

the defense, the result of the proceeding would have been different.”’ Id. (citing

United States v. Bagley, 473 U.S. 667, 682 (1985)). This high bar was not reached;

there is no argument to support the presumption that a few texts from Clarey would

be so strong as to create a “reasonable probability” that the trial result would have

been different.

-37- I. The trial court erred in denying an evidentiary hearing on Coleman’s CR 60.02 motion, and we remand for an evidentiary hearing and/or additional findings.

In August 2022, Coleman submitted a notarized CR 60.02 motion for

an evidentiary hearing citing newly discovered evidence. With this motion,

Coleman attached a personally verified statement from Shawn Thompson

(“Thompson”), a former inmate housed with Hubbard, Clarey, and Coleman. In

his statement, Thompson recounted a conversation he had with Hubbard about the

attempted robbery in which Hubbard did not implicate Coleman. In his motion,

Coleman explained he attempted to submit a notarized version of Thompson’s

statement but was unable to get a notary while incarcerated before Thompson’s

release. Coleman also made explicit legal arguments – pursuant to KRE 801, 803,

804, and KRE 613 – that asserted Thompson’s statements were excepted from the

evidentiary hearsay rule and thereby admissible.

In January 2023, Coleman supplemented his CR 60.02 motion with

two affidavits from Thompson gathered by a DPA investigator. Thompson’s first

affidavit repeated the assertions he made in his previous statement – that Hubbard

did not implicate Coleman when he discussed the crime. In a second affidavit,

Thompson recounted a conversation he had with Clarey in which Clarey admitted

planning the robbery and that Coleman did not know Hubbard had a handgun.

Again, Coleman made legal arguments as to admissibility of the two affidavits.

-38- In February 2023, Coleman again supplemented his CR 60.02 motion

and included an affidavit from Clarey gathered by a DPA investigator. In this

affidavit, Clarey admitted to planning and perpetrating the attempted robbery with

Hubbard, but stated Coleman “did not know the robbery was going to take place.”

In March 2023, the trial court overruled the CR 60.02 motion without

an evidentiary hearing. This order stated that

[Coleman] has submitted an affidavit from co-defendant, [] Clarey, stating that [Coleman] did not participate in the planning of the robbery, and a statement of a former cellmate of co-defendants stating that [] Clarey told him that [Coleman] did not participate in the planning of the robbery.

The statements of co-defendant Clarey do not qualify defendant for the relief requested under CR 60.02. The court does not find defendant’s arguments to be sufficient reason to modify the judgment in this case.

We review the denial of a CR 60.02 motion under an abuse of

discretion standard. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000)

(citing Brown v. Commonwealth, 932 S.W.2d 359, 361 (Ky. 1996)). “The test for

abuse of discretion is whether the trial judge’s decision was arbitrary,

unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v.

English, 993 S.W.2d 941, 945 (Ky. 1999) (citation omitted).

-39- The affidavit from Clarey and the second affidavit from Thompson

referencing a conversation with Clarey support Coleman’s claims of innocence.

However, they are not “newly discovered” evidence. During his trial, Coleman

called Clarey to testify, then as discussed above, withdrew that request. “Newly

discovered evidence is evidence that could not have been obtained at the time of

trial through the exercise of reasonable diligence.” Foley v. Commonwealth, 425

S.W.3d 880, 887 (Ky. 2014) (internal quotation marks omitted) (citing

Commonwealth v. Harris, 250 S.W.3d 637, 642 (Ky. 2008) and Sanders v.

Commonwealth, 339 S.W.3d 427, 437 (Ky. 2011)). Clearly, Clarey’s testimony

could have been obtained at the time of trial. Further, CR 60.02 motions afford

special and extraordinary relief not available in other proceedings. McQueen v.

Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997). Again, Clarey’s testimony was

available at Coleman’s trial but not utilized. The trial court did not abuse its

discretion in finding the statements from Clarey and the statements referencing

conversations between Clarey and Thompson did not qualify Coleman to post-

conviction relief pursuant to CR 60.02.

However, the order overruling Coleman’s CR 60.02 motion did not

address Coleman’s originating argument dealing with the conversations between

Thompson and Hubbard, i.e., the order did not mention or discuss Thompson’s

personally verified statement filed in August 2022, Thompson’s first affidavit filed

-40- in January 2023, nor Coleman’s legal arguments as to why both those statements

qualify as exceptions to the hearsay rules of evidence. The order only referenced

the second affidavit filed in January 2023 (that pertained to conversations between

Thompson and Clarey) and Clarey’s affidavit filed in February 2023.

Coleman’s CR 60.02 claim was in part rooted upon conversations

with Hubbard, not conversations with Clarey. We cannot review the trial court’s

findings and conclusions for an abuse of discretion without first having those

findings and conclusions. Here, the trial court did not address Coleman’s original

argument comprised of statements impeaching Hubbard.

Therefore, we remand for further findings and/or an evidentiary

hearing on Thompson’s personal statement filed August 2022 and Thompson’s

first affidavit relating to a conversation with Hubbard filed in January 2023, and

Coleman’s contention that those statements are admissible exceptions to the

hearsay rules of evidence.

III. CONCLUSION

In light of the foregoing, we AFFIRM Coleman’s conviction and

sentence. We AFFIRM the July 2022 order denying a new trial. However, finding

the trial court did not fully address Coleman’s CR 60.02 motion, we REVERSE

and REMAND for an evidentiary hearing and/or additional findings related to that

motion.

-41- ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Molly Mattingly Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky

-42-