IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: AUGUST 18, 2022 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2020-SC-0573-MR
VINCENT BERNARD FICKLIN APPELLANT
ON APPEAL FROM WARREN CIRCUIT COURT V. HONORABLE JOHN GRISE, JUDGE NO. 17-CR-00479
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Vincent Ficklin appeals his conviction for the murder and first-degree
robbery of Tim Massey. He claims the trial court erred (1) by denying his
motion in limine to exclude the testimony or limit the conclusions of the
firearm examiner and (2) by failing to grant a directed verdict on the first-
degree robbery charge. Upon review, we affirm the Warren Circuit Court’s
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Massey was killed early in the morning of February 10, 2017, in a house
in Bowling Green, Kentucky, which Massey and others used to sell drugs. A
Warren County jury found Ficklin guilty of intentionally murdering Massey by
shooting him and of the first-degree robbery of Massey. The robbery charge stemmed from Ficklin also stealing Massey’s Ford Expedition, later found
abandoned in Alabama. The Commonwealth presented multiple witnesses’
testimony in support of Ficklin’s guilt. The witnesses’ testimony, corroborated
by GPS data from Massey’s vehicle, cell phone tower data from Ficklin’s phone,
and security footage from nearby businesses, provided a timeline for Ficklin’s
whereabouts on the night of February 9, 2017, up through his arrival in
Alabama on February 10 driving Massey’s vehicle.
One witness testified that he was in the house with Ficklin and Massey
and that he had gone to a bedroom to rest. The witness saw Ficklin walk past
the bedroom and shortly afterward heard a loud noise in the kitchen, followed
by the sound of the front door closing. The witness went into the kitchen and
found Massey shot in the head. The witness then saw Massey’s vehicle pull
out of the driveway. Ficklin was gone. Police recovered a 9mm shell casing
near Massey’s body.
A second witness testified that he was in Franklin, Kentucky, near the
American Legion Hall on the night of February 9, 2017, when he was
approached by Ficklin about a drug debt. This witness testified that someone
shot at him and upon retreating to his vehicle, the witness saw Ficklin up the
street. A third witness saw Ficklin on the Franklin street just before the shots
rang out. Police also recovered shell casings from the Franklin shooting scene.
The Commonwealth submitted the shell casings from the two crime
scenes to the Kentucky State Police lab for comparison. Ficklin moved pretrial
to exclude or to limit the firearm and toolmark examiner’s testimony. The
2 motion was denied. The examiner testified that he compared the shell casings
and determined that they had been fired from the same gun.
At the close of the Commonwealth’s case and of all the proof, Ficklin
moved for a directed verdict on the robbery charge.1 The trial court denied
both motions.
Upon finding Ficklin guilty, the jury recommended the maximum
sentence for each crime, fifty years for the murder and twenty years for the
robbery, and that the sentences run consecutively. The trial court, following
the jury’s recommendation, sentenced Ficklin to seventy years in prison.
Ficklin raises two arguments on appeal. These claims are addressed in
turn.
ANALYSIS
I. The Trial Court Did Not Err by Denying the Motion in Limine.
Ficklin moved to exclude the firearm examiner’s testimony or limit the
testimony so that the examiner did not convey to the jury that he was able to
determine with “certainty” that the casings from Massey’s shooting and the
Franklin shooting were fired from one particular firearm. Ficklin, citing the
2009 National Research Council’s report titled Strengthening Forensic Science
in the United States (NRC Report) and the President’s Council of Advisors on
Science and Technology report titled Forensic Science in Criminal Courts:
Ensuring Scientific Validity of Feature-Comparison Methods (PCAST Report),
1 Ficklin also moved for a directed verdict on the murder charge, but the trial
court’s denial of that motion was not appealed.
3 argued that the analysis performed by the firearm examiner is no longer
deemed scientifically reliable. Criticism of firearm examination includes no
definite guidelines or standards for examination, reliance on subjective rather
than objective analysis, and no scientific validity to the assertion that any
specific firearm produces unique identifiable markings. Prior to trial, the trial
court conducted a Daubert2 hearing as to the firearm examiner’s qualifications
and experience.
The firearm examiner explained the process the Kentucky State Police
Forensic Laboratory uses to determine whether two shell casings were likely
fired from the same gun, a process which involves the examiner’s subjective
analysis. The examiner looks at the shell casings through a comparison
microscope to identify individual characteristics caused by the firing process.
Under the Association of Firearm and Toolmark Examiners (AFTE) guidelines,3
the examiner should comparatively examine the two casings’ surface contour
patterns. If the examiner, based upon his experience and training, finds
“significant agreement” between corresponding individual characteristics on
both casings that “significant agreement” supports the conclusion that the
casings were discharged from the same firearm.
2 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). 3 The PCAST Report examined a 2011 AFTE journal article and scrutinized the
examiner’s subjective conclusions.
4 The examiner also testified to the scientific reliability of the process. The
Kentucky State Police Forensic Laboratory is accredited by the ANAB4 to
perform firearm and toolmark analysis. The examiner stated that the analysis
is supported by over 100 years of research and that peer review studies and
research papers had found that firearm and toolmark examination had an
error rate of near zero percent. The examiner testified that although the
Kentucky State Police Forensic Laboratory established protocols for its
comparative analysis, AFTE had not created uniform standards to be employed
in every laboratory.
A number of factors derived from Daubert are recognized as helpful to the
trial court when determining whether the expert’s testimony rests on a reliable
foundation before allowing its admission. Futrell v. Commonwealth, 471
S.W.3d 258, 282 (Ky. 2015). “These [factors] include whether the principle,
theory, or method in question ‘can be (and has been) tested,’ whether it ‘has
been subjected to peer review and publication,’ whether it has a ‘known or
potential rate of error,’ and whether it enjoys acceptance within ‘a relevant
scientific community.’” Id. (quoting Daubert, 509 U.S. at 593-94). Here, the
trial court found a sufficient scientific basis for the jury to consider the firearm
examiner’s testimony. The trial court ruled that any weaknesses of the
approach, including its methodology and reliability, could be presented
through the cross-examination of the Commonwealth’s firearm examiner or
4 ANSI (American National Standards Institute) National Accreditation Board (ANAB).
5 examination of an expert for Ficklin. The trial court further concluded that the
firearm examiner could express his opinions “to a reasonable degree of
scientific certainty” or “reasonable degree of certainty in the field of firearm and
toolmark identification.”
At trial, the firearm examiner testified that he microscopically compared
the shell casing found near the scene of the Franklin shooting to the casing
found near Massey’s body. The examiner found significant agreement of
individual characteristics observed in the breech markings. Accordingly, he
identified the shell casings as having been fired from the same unknown
firearm.
In Garrett v. Commonwealth, 534 S.W.3d 217 (Ky. 2017), this Court
recently concluded that a trial court did not err by allowing a firearm examiner
to testify that she examined two bullets from two murder scenes visually and
microscopically and made the determination that they were fired from the same
firearm. Like in this case, a Daubert hearing was held. Garrett primarily relied
on the NRC Report, which calls into question the validity of the assumptions
about toolmarks that underlie firearms identification. Id. at 222. This Court
considered the trial court’s application of the Daubert factors to Garrett’s
arguments and United States v. Otero, 849 F. Supp. 2d 425 (D.N.J. 2012), aff'd
557 Fed. Appx. 146 (3rd Cir. 2014), which addresses Daubert arguments
similar to Garrett’s. Otero recognized that the AFTE theory of identification
contains a subjective component in determining “sufficient agreement” which
“must necessarily be based on the examiner’s training and experience.” Id. at
6 432. The Otero court found that “the AFTE theory is testable and has been
tested.” Id. Acknowledging the NRC Report’s criticisms, the Otero court found
that while the toolmark identification procedures “do indeed involve some
degree of subjective analysis and reliance upon the expertise and experience of
the examiner” the methodology is reliable. Id. at 438.
Ficklin seeks to persuade this Court that Daubert is not satisfied and his
argument in part is that we must reconsider Garrett because Otero’s analysis is
flawed. However, as the trial court in this case pointed out at the pretrial
hearing, it did not consider Garrett dispositive of whether a firearm examiner
may testify at trial about the examination of the shell casings and the
conclusions from that examination. Rather, the trial court’s role is to rule on
the evidence presented whether Daubert is satisfied and if so, to exercise
discretion as to whether the expert’s testimony may be admitted at trial.
Garrett, 534 S.W.3d at 221. Ficklin himself made this point during the pretrial
hearing.
At the pretrial hearing, Ficklin’s arguments mirrored those presented in
Garrett. After hearing the expert’s testimony, the trial court acknowledged that
controversy exists in regard to the firearm and toolmark examination
assumptions and methodology, but that controversy did not preclude finding
that the testimony was admissible under Daubert. Consequently, based upon
the expert’s testimony, the trial court concluded the firearm examiner’s
testimony could be admitted and the defense could expose at trial the
weaknesses of the firearm and toolmark examination.
7 Ficklin argues before this Court that the Garrett decision missed the
mark and accepted too much at face value from the firearm examiner
community. Quoting Meskimen v. Commonwealth, 435 S.W.3d 526, 535-36
(Ky. 2013), a hair comparison case in which a Daubert hearing was not held
because the trial court took judicial notice that hair comparison evidence is
scientifically reliable, id. at 534-35, Ficklin points out that “what is
scientifically acceptable today may be found to be incorrect or obsolete in the
future” and “even though caselaw may be in acceptance of a certain method of
analysis, it is the trial court’s duty to ensure that method is supported by
scientific findings, or at least not seriously questioned by recent reputable
scientific findings, before taking judicial notice of its acceptability.” Ficklin
contends that the trial court’s acceptance of the firearm examiner’s testimony
was clear error. Stated another way, Ficklin contends that substantial
evidence did not support the trial court’s findings of fact at the Daubert
hearing. Garrett, 534 S.W.3d at 221.
Even though this is not a case in which the trial court took judicial
notice of the shell case examination technique as reliable, we view the Daubert
hearing in this case as not being at odds with Meskimen’s guidance. As
discussed above, when conducting the Daubert hearing, the trial court
explained that it did not consider Garrett dispositive, but rather heard
testimony and made its ruling based upon the evidence presented. In short, it
took a fresh look at the issue. Upon review of the hearing testimony, we
8 conclude the trial court did not clearly err when ruling that the expert’s
testimony satisfied Daubert and was admissible at trial. Id.
Ficklin also argues that the trial court erred by not requiring the firearm
examiner to conform his testimony to the scientifically defensible position
contained in the 2009 NRC Report: that the cartridges displayed similarities
and could not be excluded as having been fired from the same firearm. Ficklin
does not explain how the accepted “reasonable degree of scientific certainty”
standard differs from the requested language and prejudices him. Regardless,
even though the firearm examiner did not express his opinion in terms of a
“reasonable degree of scientific certainty” in compliance with the trial court’s
ruling, Ficklin did not object to the firearm examiner’s testimony that he
concluded the two cartridges came from the same unknown firearm. This
specific claim of error regarding how the firearm examiner phrased his
conclusion is not preserved for this Court’s review.
II. The Trial Court Did Not Err by Denying a Directed Verdict.
Ficklin’s second and final claim is that the trial court erred by denying
his motion for a directed verdict on the first-degree robbery charge.
Pertinently, the Commonwealth’s burden was to prove that in the course of
committing theft, Ficklin used or threatened the immediate use of physical
force upon Massey with intent to accomplish the theft and when he did so,
Ficklin was armed with a deadly weapon. Kentucky Revised Statute (KRS)
9 515.020(1).5 At the close of the Commonwealth’s proof, Ficklin moved for a
directed verdict on the basis that the Commonwealth did not produce sufficient
evidence to prove that Ficklin used physical force against Massey and that
Ficklin stole Massey’s truck. At the close of evidence, Ficklin renewed the
motion with the general statement that the Commonwealth had not met its
burden beyond a reasonable doubt.
In order to preserve a directed verdict issue for appellate review, the
defendant must identify the particular element(s) of that charge the
Commonwealth failed to prove. Ray v. Commonwealth, 611 S.W.3d 250, 266
(Ky. 2020). Here, in support of his appellate argument, Ficklin concedes that
the evidence was sufficient for a jury to find that Ficklin shot Massey and that
thereafter Ficklin stole Massey’s truck. However, he argues that there was no
evidence to prove that it was Ficklin’s intent when he shot Massey to do so in
order to steal Massey’s truck. Ficklin seeks palpable error review if this Court
agrees with the Commonwealth that Ficklin’s “intent” argument is not
preserved.
Under Kentucky Rule of Criminal Procedure (RCr) 10.26, if an
unpreserved error is found to be palpable and if it affects the substantial rights
of the defendant, the appellate court may grant appropriate relief if manifest
injustice has resulted from the error. An error is palpable when it is “easily
5 The first-degree robbery instruction findings were pertinently: 1) Ficklin stole a vehicle from Massey; 2) in the course of doing so and with the intent to accomplish the theft, he used, or threatened the immediate use of, physical force upon Massey; and 3) that when he did so, he was armed with a deadly weapon.
10 perceptible, plain, obvious and readily noticeable.” Brewer v. Commonwealth,
206 S.W.3d 343, 349 (Ky. 2006). The error must be “so manifest, fundamental
and unambiguous that it threatens the integrity of the judicial process.” Martin
v. Commonwealth, 207 S.W.3d 1, 5 (Ky. 2006). Ficklin contends that a
conviction without sufficient evidence is a violation of due process, and
therefore necessarily palpable error.
As noted above, Ficklin asserts that the Commonwealth adduced no
evidence to prove that it was his intent when he shot Massey to do so in order
to steal Massey’s truck. Ficklin points to the testimony he elicited from one of
the Commonwealth’s witnesses about Ficklin’s motive for the shooting—that
Ficklin may have believed Massey to be a police informant—as evidence of his
intent to shoot and kill Massey. Ficklin nevertheless argues that he also had
another intent, the intent to steal Massey’s truck for the unrelated purpose of
effecting an escape.
Ficklin cites Hobson v. Commonwealth, 306 S.W.3d 478, 482 (Ky. 2010),
as an example of when a threat or use of force is distinct from the commission
of a theft, the elements of robbery are not met, the statute requiring that the
use of force or threat of force be contemporaneous with an intent to accomplish
the theft. With it being undisputed in Hobson that the defendant neither used,
nor threatened to use, force against another until after the defendant fled the
store, abandoning the merchandise he had intended to steal at the checkout
counter, this Court concluded the defendant was entitled to a directed verdict
on the first-degree robbery charge because the defendant’s use of force was not
11 “with intent to accomplish the theft” and a reasonable jury could not conclude
otherwise. Id. at 483. Here, the facts are unlike those in Hobson because the
use of force occurred and then the theft of the vehicle occurred. As addressed
in Hobson, the underlying question is whether there was sufficient evidence
from which the jury could find at the time of the use of force the defendant had
a contemporaneous intent to rob.6
“[A] person is presumed to intend the logical and probable consequences
of his conduct and ‘a person’s state of mind may be inferred from actions
preceding and following the charged offense.’” Parker v. Commonwealth, 952
S.W.2d 209, 212 (Ky. 1997).
In assessing evidence as to sufficient proof of intent in criminal cases, the requisite intent may be determined from surrounding circumstances. All elements of a crime, including intent, can be proven by circumstantial evidence. Hardly is the Commonwealth ever fortunate enough to present direct proof as to the thought process in a defendant’s mind.
Commonwealth v. O’Conner, 372 S.W.3d 855, 857 (Ky. 2012) (internal citations
omitted). “The jury has wide latitude in inferring intent from the evidence.”
6 As part of its argument that the trial court properly denied the directed verdict, the Commonwealth cites Ray v. Commonwealth, 611 S.W.3d 250, 267 (Ky. 2020), for the premise that the offense of first-degree robbery is committed even when the robber decides to steal the property after he kills the victim, so long as the theft and the murder are part of the same criminal episode. Ficklin disagrees that Ray stands for that proposition but nevertheless argues that Ray and Bowling v. Commonwealth, 942 S.W.2d 293 (Ky. 1997), which Ray cites, are cases which stand in direct contrast to KRS 515.020’s requirement that at the time the force is used, the perpetrator must have formed the intent to commit the theft. We find Ray factually distinguishable and we need not and do not consider Ficklin’s assertion that Ray perpetuated an error made in Bowling.
12 Anastasi v. Commonwealth, 754 S.W.2d 860, 862 (Ky. 1988) (citing Rayburn v.
Commonwealth, 476 S.W.2d 187 (Ky. 1972)).
“When presented with a motion for a directed verdict, a court must
consider the evidence as a whole, presume the Commonwealth’s proof is true,
draw all reasonable inferences in favor of the Commonwealth, and leave
questions of weight and credibility to the jury.” Acosta v. Commonwealth, 391
S.W.3d 809, 816 (Ky. 2013) (citing Commonwealth v. Benham, 816 S.W.2d 186,
187-88 (Ky. 1991)). A trial court should deny a directed verdict when the
“Commonwealth has produced . . . more than a scintilla [of evidence] and it
would be reasonable for the jury to return a verdict of guilty based on it.” Id.
“On appellate review, the standard is slightly more deferential; the trial court
should be reversed only if ‘it would be clearly unreasonable for a jury to find
guilt.’” Id. Here, the evidence included that upon shooting Massey, Ficklin
immediately stole Massey’s vehicle. It was not clearly unreasonable for the jury
to find that Ficklin had the intent to steal Massey’s vehicle at the time he shot
Massey. The trial court did not err by refusing to grant Ficklin’s motion for a
directed verdict of acquittal.
CONCLUSION
For the foregoing reasons, the Warren Circuit Court’s judgment is
affirmed.
All sitting. All concur.
13 COUNSEL FOR APPELLANT:
Aaron Reed Baker Assistant Public Advocate
COUNSEL FOR APPELLEE:
Daniel J. Cameron Attorney General of Kentucky
Robert Lee Baldridge Assistant Attorney General