IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4){C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: FEBRUARY 14, 2019 NOT TO BE PUBLISHED
2017-SC-000622-MR
WILLIAM TERRY JAMISON APPELLANT
ON APPEAL FROM FULTON CIRCUIT COURT V. HONORABLE TIMOTHY A. LANGFORD, JUDGE NO. 16-CR-00113
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
William “Terry” Jamison appeals as a matter of right from his murder
conviction and twenty-year sentence of imprisonment.1 On appeal, Jamison
raises seven claims of error: (1) the prosecutor committed prosecutorial
misconduct, (2) his Fifth Amendment right to remain silent was violated by the
prosecution’s repeated comments regarding Jamison’s post-Miranda election
not to comment at the scene, (3) the trial court should have allowed additional
testimony that would have bolstered Jamison’s self-defense theory, (4) his
Sixth Amendment Confrontation Clause rights were violated, (5) the
1Ky. Const. § 110(2)(b). Commonwealth failed to establish venue, (6) the jury instructions were
improper, and (7) his right to a “presumption of innocence” was violated when
a video was shown of him in handcuffs. Finding no reversible error, we affirm
in all respects the sentence and judgment of the Fulton Circuit Court.
I. BACKGROUND
In late September 2016, Jamison was driving on a highway when Mark
Williams drove up on his bumper chasing him at speeds over 80 to 90 miles
per hour. Jamison immediately reported the incident to the Lake County,
Tennessee, Sheriffs Department. Even before the incident, the Jamison and
Williams’ families did not get along. On October 1, 2016, Jamison shot and
killed Williams when Williams drove up on a tract of farmland where Jamison
was working in Fulton County, Kentucky. No one witnessed the shooting.
Jamison called 911 and reported “a guy [had] come up to kill [him].” When
local law enforcement arrived, Jamison stated that “Mark Williams pulled in
behind me, raised his hand with a piece of metal and said he was going to kill
me. He’s down here under his truck sir.” After seeing Williams’ body, Deputy
Thomas read Jamison his Miranda rights and asked whether he would like to
speak with officers. Jamison invoked his right to remain silent until he had
spoken with an attorney. Deputy Thomas then handcuffed Jamison and took
him to the Hickman Police Department.
Jamison was subsequently tried by a Fulton Circuit Court jury. The
jury was instructed on murder, first-degree manslaughter, second-degree
2 manslaughter, reckless homicide, and the self-protection statute, KRS2
503.050, respectively. Jamison was convicted of murder, and the trial court
imposed a punishment of twenty years’ imprisonment. This appeal followed.
II. STANDARD OF REVIEW.
Almost all the issues raised by Jamison were not preserved below.
Therefore, to reverse, this Court must find palpable error. RCr3 10.26. In
Commonwealth v. Jones, 283 S.W.3d 665 (Ky. 2009), the Kentucky Supreme
Court discussed the palpable error rule of RCr 10.26, and stated
An unpreserved error that is both palpable and prejudicial still does not justify relief unless the reviewing court further determines that it has resulted in a manifest injustice, unless, in other words, the error so seriously affected the fairness, integrity, or public reputation of the proceeding as to be “shocking or jurisprudentially intolerable.”
283 S.W.3d at 668 (quoting Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky.
2006)). “A finding of palpable error must involve prejudice more egregious than
that occurring in reversible error, ... and the error must have resulted in
‘manifest injustice.’ ” Webb, 387 S.W.3d at 329 (quoting Ernst v.
Commonwealth, 160 S.W.3d 744, 758 (Ky. 2005) (citing Brock v.
Commonwealth, 947 S.W.2d 24, 28 (Ky. 1997))).
III. ANALYSIS.
A. Prosecutorial Misconduct/Closing Argument.
Jamison asserts that actions taken by the prosecution throughout trial
amounted to prosecutorial misconduct and warrant reversal. These include (1)
2 Kentucky Revised Statutes. 3 Kentucky Rules of Criminal Procedure.
3 references in opening statement to Jamison’s choice not to comment to police;
(2) the prosecutor’s conduct during cross-examination of Jamison; and (3)
several statements made during closing argument. As a preface, we must note
that “(u)npreserved claims of error cannot be resuscitated by labeling them
cumulatively as prosecutorial misconduct.” Noakes v. Commonwealth, 354
S.W.3d 116, 122 (Ky. 2011) (citation omitted). Accordingly, Jamison’s waived
Fifth Amendment claims, discussed infra, will not be reviewed under the guise
of prosecutorial misconduct. However, even though no objection was made, we
may still review statements made by the prosecution during closing argument,
and the circumstances surrounding those statements, to determine whether
the statements require reversal.
“Prosecutorial misconduct is ‘[a] prosecutor’s improper or illegal act. . .
involving an attempt to . . . persuade the jury to wrongly convict a defendant or
assess an unjustified punishment.’” Noakes, 354 S.W.3d at 121 (quoting
Black's Law Dictionary (9th ed. 2009)). We must first decide “if the misconduct
is flagrant or if each of the following three conditions is satisfied: (1) proof of
defendant’s guilt is not overwhelming; (2) defense counsel objected; and (3) the
trial court failed to cure the error with a sufficient admonishment to the jury.”
Bowling v. Commonwealth, 553 S.W.3d 231, 242 (Ky. 2018). Defense counsel
did not object to any of the statements Jamison alleges constituted
prosecutorial misconduct. Therefore, the misconduct must have been flagrant
to warrant reversal. Four factors are used to determine whether misconduct is
flagrant: “(1) whether the remarks tended to mislead the jury or to prejudice
4 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. at 243. If the conduct is deemed flagrant,
this Court will reverse only if the statement resulted in manifest injustice.
Matheney v. Commonwealth, 191 S.W.3d 599, 606-07 n.4 (Ky. 2006).
Jamison contends, and the Commonwealth acknowledges, that during
closing the prosecutor misstated the law regarding the level of proof needed for
self-defense. The prosecutor stated, “[t]hey have to prove, like I have to prove
murder, beyond a reasonable doubt. They can’t prove self-defense, ladies and
gentleman. There’s no facts there to support their allegation of self-protection.”
We review this statement under the four “flagrancy” factors from
Bowling. 553 S.W.3d at 243. First, we acknowledge that this statement was
an inaccurate recitation of the law. A defendant’s belief that self-defense is
necessary does not equate to proof that such force is necessary “beyond a
reasonable doubt.” KRS 503.050. Although the prosecutor’s statement here
was misleading, that factor is not dispositive to our analysis.
We must also consider that this single comment by the prosecution was
extremely isolated. It is critical to note that the actual instructions provided to
the jury during deliberations contained a proper recitation of the relevant law
concerning self-protection. In fact, after reading the instructions to the jury,
the trial judge urged the jury to read them on their own once in the jury room.
Also, after the misstatement of the law by the prosecutor, he subsequently
picked up the correct instructions and re-read them to the jury on his own. As
5 such, it strains credulity to claim that the jury was influenced by the
prosecutor’s brief misstatement.
Third, the misstatement of law was not deliberately placed in front of the
jury. As previously discussed, the prosecutor misspoke during closing
argument. Nothing from the record indicates that the prosecutor intended to
mislead the jury.
The jury was presented with arguably the best evidence in Jamison’s
favor—his own testimony. The jury was afforded the opportunity to consider
the veracity of that testimony. We cannot conclude that the prosecutor’s error
here was flagrant. In that same vein, we cannot say that this misstatement of
law was “shocking or jurisprudentially intolerable.” Martin v. Commonwealth,
207 S.W.3d 1, 4 (Ky. 2006). Therefore, there was no palpable error.
Similarly, the prosecutor’s comments during his opening statement
concerning the “pure, cold, mean, [and] agonizing” nature of the crime were
neither flagrant nor palpable. We recognize that prosecutors must be cautious
in their words, as “[a]n attorney for the commonwealth should never forget his
high position; should never forget it is his duty to protect the innocent just as
much as it is his duty to prosecute the guilty.” Taulbee v. Commonwealth, 438
S.W.2d 777, 779 (Ky. 1969) (quoting Goff v. Commonwealth, 44 S.W.2d 306, 308
(Ky. 1931)). However, it is also a prosecutor’s duty to zealously and ethically
advocate for the state’s interests. “Great leeway is allowed to both counsel in a
closing argument. It is just that - an argument. A prosecutor may comment on
tactics, may comment on evidence, and may comment as to the falsity of a
6 defense position.” Slaughter v. Commonwealth, 744 S.W.2d 407, 412 (Ky. 1987).
We cannot say here that the prosecutor’s characterization of the evidence went
beyond advocacy into flagrant misconduct or palpable error.
B. Fifth Amendment Challenge.
Before trial, defense counsel became worried about what the jury might
think if it learned that Jamison did not give a statement to police. The trial
court assured counsel that if it became an issue, it would admonish the jury.
The prosecutor stated that he only intended to demonstrate that Jamison did
not give a statement to police, and nothing further. When the trial court asked
if defense counsel wanted an admonition if the issue arose, defense counsel
stated, “I think it’s in my client’s best interest to [let the jury know about
Jamison not giving a statement].” Later in the pre-trial hearing, regarding the
same issue, the trial court stated:
Trial Court: Are you going to acknowledge [that Jamison did not give a statement]?
Defense Counsel: Yes.
Trial Court: Alright, so it sounds like a non-issue at this point.
Defense Counsel: Right.
Trial Court: If it develops into an issue, gentlemen, bring it to my attention and I’ll rule accordingly.
Defense Counsel: Okay.
During trial, Jamison’s refusal to give a statement at the scene turned
into a focal point for the prosecution. On eight separate instances, the
7 prosecutor stated or elicited a statement from a witness regarding the lack of a
statement by Jamison; specifically, the prosecutor elicited testimony from law
enforcement officers that the first thing a police officer would do if he was
involved in a shooting would be to give a statement. These statements and
elicited responses occurred at every stage of trial; once during opening
argument, four times during the Commonwealth’s case in chief, once on cross-
examination of Jamison, and twice during closing argument.
During his opening statement the prosecutor stated, "We don’t know
what happened [to the trailer hitch] because he declined to comment to police.”
During re-direct of Officer Joey Adams:
Commonwealth: He talked to you about an officer shooting, which has absolutely nothing to do with this case. But, the fact of the matter is, what’s the first thing that happens when an officer is involved in a shooting? Does he give a statement?
Sgt. Adams: Yes. I gave a statement to my lieutenant at the time.
Commonwealth: So you gave a statement?
Sgt. Adams: Explaining what happened yes.
During direct examination of lead Detective Hamby:
Commonwealth: Were you able to talk to [Jamison] at any time?
Det. Hamby: I did attempt to talk to him later in the evening, but not immediately, no.
Commonwealth: Did you receive any information when you talked to [Jamison]?
Det. Hamby: No, he chose not to make a statement.
8 On re-direct of Detective Hamby:
Commonwealth: What is the first thing that happens when an officer is involved in a shooting?
Det. Hamby: They are typically interviewed.
Commonwealth: They give a statement about what happened is that what you are saying?
Det. Hamby: That’s correct.
Commonwealth: The very first thing?
Det. Hamby: In probably 99% of the cases, yes.
On cross-examination of Jamison
Commonwealth: Why did you need time before you made your statement?
Jamison: Sir, my mind wasn’t clear and I was scared.
Commonwealth: Of Deputy Thomas?
Jamison: No, just from the incident.
Commonwealth: But you didn’t give a statement to Deputy Thomas of what happened?
Jamison: They read me my rights, and told me to I had the right . . .
Commonwealth: So, you exercised your right not to say anything?
Jamison: Yes sir, I remained silent, yes sir.
Commonwealth: After you shot a man down in cold blood.
Jamison: No sir.
Commonwealth: Nothing further.
During closing argument, the prosecution drew an analogy between what
law enforcement officers do and what Jamison did not do after involvement in a
shooting:
9 Commonwealth: What is the first thing an officer is required to do [when involved in a shooting]? Give a statement. We didn’t have a statement here. So, Det. Hamby had to go on what information he had.
And finally, later in closing:
Commonwealth: And then he met Deputy Thomas. Deputy Thomas read him his rights, and he declined to talk any further, and he had that right. Cory Hamby began his investigation on what he had, what information he had that night.
Throughout the entire trial, defense counsel never objected to the
prosecutor’s questions, statements, or elicited testimony regarding Jamison’s
refusal to give a statement. Defense counsel also allowed the Commonwealth
to play a body cam video of Jamison being read his Miranda rights, asking for
an attorney, and being placed in handcuffs. Furthermore, defense counsel
raised Jamison’s refusal to give a statement on his own during his opening
statement, during cross-examination of the Commonwealth’s main witness,
and during direct examination of Jamison.
Defense counsel did not object to any statements made by the
prosecution regarding Jamison’s election to speak with an attorney prior to
giving a statement. In his brief, Jamison seeks palpable error review under
RCr 10.26. The Commonwealth asserts that Jamison waived any review on
appeal because of the above statements made by defense counsel during pre
trial hearings and the lack of objection during trial. Indeed, when not waived
by lack of objection, comments such as those made by the Commonwealth
have been held to have eviscerated a defendant’s Fifth Amendment rights,
requiring reversal. See, e.g., Doyle v. Ohio, 426 U.S. 610, 618 (1976). 10 However, even a constitutional right such as this may be waived if trial
counsel failed to object. West v. Commonwealth, 780 S.W.2d 600, 602 (Ky.
1989). In West, this Court held:
When a defendant’s attorney is aware of an issue and elects to raise no objection, the attorney’s failure to object may constitute a waiver of an error having constitutional implications. In the absence of exceptional circumstances, a defendant is bound by the trial strategy adopted by his counsel even if made without prior consultation with the defendant. The defendant’s counsel cannot deliberately forego making an objection to a curable trial defect when he is aware of the basis for an objection.
Id. (citation omitted). West further held that “nothing contained in RCr 10.26
precludes the waiver of palpable error or even waiver of a constitutional right.”4
Id.
Jamison’s defense counsel clearly knew of his client’s Fifth Amendment
rights and determined that his strategy at trial was to acknowledge Jamison’s
constitutional right to not give a statement to police. Regardless of our
thoughts concerning this strategy, Jamison’s defense counsel knew of the
curable trial defect—Jamison’s right to silence—and deliberately chose not to
object each time the prosecution raised the issue. Therefore, the issue was
waived.
C. Additional Self-Defense Testimony.
During trial, the trial court sustained objections to the testimony of three
separate defense witnesses. Jamison now asserts that these witnesses should
4 While more recent cases, such as Jones, 283 S.W.3d 665, and Martin, 207 S.W.3d 1, question whether palpable error is subject to waiver, a constitutional right may certainly be knowingly waived.
11 have been allowed to be heard as they had relevant testimony to give regarding
the “state of mind” of the defendant at the time of the shooting. In his brief,
Jamison mentions all three defense witnesses, but only raises claims of error in
his argument section as to two of them. Further, this Court will review only
one of the two remaining claims of error because defense counsel waived
appellate review as to one witness when he proceeded to question the witness
down a different path after a “leading question” objection.5
We review a trial court’s evidentiary rulings for an abuse of discretion.
Walker v. Commonwealth, 288 S.W.3d 729, 739 (Ky. 2009). “Under this
standard, a trial court’s evidentiary ruling will not be disturbed unless its
ruling was arbitrary, unreasonable, unfair, or unsupported by sound legal
principals.” Id. (citation omitted). Additionally, even if an evidentiary error has
been committed, harmless error exists if we can say “with fair assurance that
the judgment was not substantially swayed by the error.” Winstead u.
Commonwealth, 283 S.W.3d 678, 689 (Ky. 2009); RCr 9.24.
At trial, Jamison attempted to call as a witness a Tennessee deputy
sheriff who would have testified that Jameson had related to him the
information about the driving incident that occurred between Jamison and
Williams days before the shooting. The Commonwealth objected to this
testimony on hearsay grounds; the trial court sustained the objection but
5 Jamison asserts in his original brief that it was a “hearsay” objection, but it was actually a “leading question” objection. Had trial counsel wanted to elicit the information Jamison now brings forth on review, he could have simply reworded his question to the proper direct examination form.
12 allowed the defense the opportunity to recall the deputy at a later time after
Jamison testified. The deputy was never recalled.
Hearsay is an out of court statement being offered for the truth of the
matter asserted. KRE6 801 (c).
In self-defense cases, fear by the defendant of the victim at the time of their encounter is an element of the defense and can be proved by evidence of violent acts of the victim, threats by the victim, and even hearsay statements about acts and threats, if such evidence is accompanied by proof that the defendant knew of such acts, threats, or statements at the time of the encounter.
Robert G. Lawson, The Kentucky Evidence Law Handbook § 2.20 at 112 (5th
ed. 2013). The deputy’s testimony would not have been hearsay because it
would have been offered to show Jamison’s state of mind—his fear of
Williams—prior to the shooting. Jamison was not required to raise self-defense
first by taking the stand. Therefore, it was an abuse of discretion for the trial
court to sustain the objection to Deputy Bargery’s testimony.
In the context of this trial, however, this error was harmless. Jamison
did eventually testify and discussed, at length, the incident involving Williams
the week before. The deputy’s testimony would have, therefore, added nothing
but cumulative evidence to the case before the jury. Given that the defense
also made no effort to recall the witness, we find that any error here was either
waived or harmless.
6 Kentucky Rules of Evidence.
13 D. Confrontation Clause.
Jamison also argues that his Sixth Amendment Confrontation Clause
rights were violated when Detective Hamby testified that Jamison’s defense
counsel told him that Jamison had stepped onto the bumper to look inside the
truck bed after shooting Williams. At trial, defense counsel asked to be heard
in chambers, and requested a mistrial but did not further request a ruling
when Det. Hamby clarified his testimony. Defense counsel then told the trial
court that he was not asking for an admonition, but just wanted to review the
testimony, “because obviously I can’t be a witness in this case.” The matter
was not addressed again during trial. “It is the duty of one who moves the trial
court for relief to insist upon a ruling, and a failure to do so is regarded as a
waiver.” Dillard v. Commonwealth, 995 S.W.2d 366, 371 (Ky. 1999). Defense
counsel did not insist upon a ruling here.
Additionally, there is nothing particularly incriminating or inculpatory by
the statement that Jamison simply looked into the truck bed of the victim after
the shooting. Jamison himself spoke of this same fact during his testimony.
Thus, once again, the issue was waived; clearly Jamison felt the fact was
relevant to his defense. Therefore, there is nothing for us to review. To the
extent that this issue was not entirely waived, it is harmless beyond a
reasonable doubt. Sparkman v. Commonwealth, 250 S.W.3d 667 (Ky. 2008).
There was nothing incriminating that would have negatively influenced
Jamison’s defense.
14 E. Establishment of Venue.
This issue arises because none of the Commonwealth’s witnesses ever
stated that the shooting occurred in Fulton County, Kentucky. Jamison
argues that because “Kentucky” was never used when referring to Fulton
County, venue was not established, and thus reversal is required.
In criminal cases, the prosecution must establish that the crime was
committed in the county where it is being prosecuted. Commonwealth v.
Cheeks,. 698 S.W.2d 832, 835 (Ky. 1985). However, direct evidence is not
required to prove “that the crime occurred in the county of its prosecution, but
the fact may be inferred from evidence and circumstances which would allow
the jury to infer where the crime was committed.” Id.
At trial, ample evidence was presented that the shooting took place in
Fulton County, Kentucky. First, Det. Hamby stated that the shooting took
place in Fulton County. Second, Dep. Thomas testified that he responded to
an area near Midway Baptist Church in the Lower Bottom area of Fulton
County, and that a photograph of the scene of the crime was taken two or three
miles away from the Tennessee line. Furthermore, although South Fulton,
Tennessee is located just across the Kentucky-Tennessee line, no Fulton
County, Tennessee exists. Therefore, venue was sufficiently established from
the testimony given by the Commonwealth’s witnesses at trial.
F. Jury Instructions.
Jamison claims multiple errors in the jury instructions given at trial.
Jamison first complains that the instruction titled “Reasonable Doubt” was not
15 adequate to define reasonable doubt, the indictment process, the presumption
of innocence, and self-protection. Notably, the “Reasonable Doubt” instruction
given at trial is an exact replica of the model “Presumption of Innocence”
instruction, and the “Self-Protection” instruction given virtually mirrors its
model instruction. Cooper and Cetrulo, Kentucky Instructions to Juries,
Criminal § 11.07 (6th ed. 2017). Therefore, these instructions are properly
given to the jury regarding the aforementioned issues. Additionally, it appears
from Jamison’s proffered instructions, he did not include an alternate
reasonable doubt or indictment instruction.
Jamison’s imperfect self-defense argument was preserved via the proffer
of alternative instructions, but no error existed in the imperfect self-defense
instructions. The final instructions essentially mirrored those set out by this
Court as proper in Commonwealth v. Hager, 41 S.W.3d 828, 846-47 (Ky. 2001).
Therefore, the trial court gave a proper instruction regarding imperfect self-
defense and no error occurred in the context of this case.
Jamison also argues that the first-degree manslaughter instruction was
improper because it did not include the first-degree manslaughter model
instruction section regarding intent to injure, but not kill the victim. Cooper
and Cetrulo, § 11.07. However, Jamison did not tender an instruction on first-
degree manslaughter in his proffered jury instructions; he included
instructions on murder, second-degree manslaughter, and reckless homicide,
but not first-degree manslaughter. “No party may assign as error the giving or
the failure to give an instruction unless the party’s position has been fairly and
16 adequately presented to the trial judge by an offered instruction or by motion,
or unless the party makes objection before the court instructs the jury, stating
specifically the matter to which the party objects and the ground or grounds of
the objection.” RCr 9.54(2). Jamison failed to preserve any error as to the
first-degree manslaughter instruction. He did not object to the instruction. It
is arguable that the evidence did not even warrant an instruction on first-
degree manslaughter with intent to injure but not kill. We find no palpable
error here warranting reversal.
G. Handcuff Video.
Finally, Jamison argues that his “presumption of innocence” was violated
when a video was shown during trial that included footage of him being
handcuffed. However, at a bench conference prior to showing the video,
defense counsel stated that he did not have any objection to the first “ten or
twenty or thirty minutes” being shown. After the prosecution stopped playing
the video, defense counsel continued to play additional portions of the same
video. Accordingly, Jamison waived this issue through invited error. We have
held that “invited errors that amount to a waiver, i.e., invitations that reflect
the party’s knowing relinquishment of a right, are not subject to appellate
review.” Quisenberry v. Commonwealth, 336 S.W.3d 19, 38 (Ky. 2011) (citation
omitted). Any alleged error here was clearly.invited by defense counsel.
Furthermore, even if not invited error, a video of a defendant being handcuffed,
without more, is not error. See Johnson, 105 S.W.3d at 439 (upheld trial court
decision to allow arrest video to be played for jury); Edmonds v. Commonwealth,
17 906 S.W.2d 343, 346-47 (Ky. 1995) (no palpable error when “dramatic footage
of the persons arrested being handcuffed by police” was shown at trial). As
defense counsel invited this error, it is not subject to our review on appeal.
IV. CONCLUSION.
For the foregoing reasons, we affirm the Fulton Circuit Court.
Minton, C.J.; Keller, Lambert and Wright, JJ., concur. VanMeter, J.,
dissents by separate opinion in which Hughes, J., joins.
VANMETER, J., DISSENTING: I respectfully dissent from the majority’s
opinion regarding whether the Commonwealth’s Attorney’s misstatement of law
during closing argument amounted to prosecutorial misconduct. The majority
places a heavy emphasis on the fact that the statement shifting the burden of
proving self-defense to Jamison was “extremely isolated.” Although the
statement was isolated, its effects were not.
The defense’s entire case rested on the theory that Jamison acted in self-
defense. Jamison acknowledged that he shot and killed Williams but claimed
that he had acted in self-defense. “Once evidence is introduced which justifies
an instruction on self-protection . . . the Commonwealth has the burden to
disprove it beyond a reasonable doubt, and its absence becomes an element of
the offense.” Commonwealth v. Hager, 41 S.W.3d 828, 833 n.l (Ky. 2001). By
making the above statement, the prosecution shifted the burden to Jamison to
prove the claim of self-protection beyond a reasonable doubt, effectively erasing
any burden from the Commonwealth besides the burden to prove Jamison shot
and killed Williams, something he never disputed. Accordingly, although a
18 single isolated comment, it changed the entire trial by shifting the burden from
the Commonwealth to the defendant, effectively inserting “beyond a reasonable
doubt” into every shred of self-defense evidence presented by Jamison.
Furthermore, the majority’s insistence that the chief prosecutor of a four-
county circuit simply “misspoke” when he stated “[t]hey have to prove, like I
have to prove murder, beyond a reasonable doubt,” strains credulity. The
prosecutor is a seasoned Commonwealth’s Attorney, practicing criminal law on
a daily basis. No law in this Commonwealth states that the defense must prove
self-protection beyond a reasonable doubt. The “beyond a reasonable doubt”
standard is a level of proof placed upon the Commonwealth, not upon the
defendant. All a defendant must do to receive an instruction on self-defense is
put on evidence that “raise[s] the issue[.]” Hilbert v. Commonwealth, 162
S.W.3d 921, 925 (Ky. 2005), superseded by statute on other grounds. And, all
the evidence must do to warrant an instruction on self-defense is “justify a
reasonable doubt concerning the defendant’s guilt.” Id. Although the final /
decision is left to the jury, a gross misstatement of the burden of proof of this
nature, after jury instructions have been read, taints an entire trial.
Finally, the majority conveniently skips over the fourth factor in the
Bowling flagrancy analysis: “the strength of the evidence against the accused.”
553 S.W.3d at 243. In some cases, the strength of the evidence may be enough
to minimize the damage of a misstatement of law so as to not make it flagrant.
However, the strength of the evidence against the accused in the present case
was not overwhelming. Jamison admitted to shooting Williams, but no one
19 I
witnessed it. Further, evidence showed (1) a feud between the two farming
families, (2) dangerous behavior by Williams towards Jamison just days prior to
the crime, (3) testimony of similar dangerous behavior by Williams toward
another farmer, (4) evidence that Williams drove up onto the land where
Jamison was working alone, (5) discrepancies in the distance from which the
shots were taken, and (6) testimony by Jamison that Williams, a much larger
man than Jamison, held a trailer hitch above his head, screaming “I’m going to
kill you” when he stepped out of his pickup. To refute this evidence, the
prosecution chose a strategy that consisted of showing that (1) Williams’ body
was mostly under his truck, (2) Williams had a gun in his truck that he would
have used if he had really wanted to kill Jamison, (3) continued attacks against
Jamison’s decision to remain silent, and (4) the irrelevant comparison that in
an analogous situation a law enforcement officer would have given a statement.
The evidence could not have been “overwhelming,” as the prosecution’s main
strategy—commenting on Jamison’s decision to stay silent—was clear
reversible error had it not been waived by defense counsel. Consequently, as
the evidence was not “overwhelming,” the egregious misstatement of law was
“flagrant” as defined by the four factors cited in Bowling. 553 S.W.3d at 242-
43.
In addition, this misstatement of law resulted in a “manifest injustice”
under RCr 10.26 because it violated Jamison’s “substantial rights” by
representing to the jury that Jamison must meet the highest burden of proof,
beyond a reasonable doubt, to be acquitted by self-defense, when in fact the
20 i
Commonwealth had to disprove it beyond a reasonable doubt. Hager, 41
S.W.3d at 833. Although this Court has held that juries are presumed to
follow jury instructions, Johnson v. Commonwealth, 105 S.W.3d 430, 436 (Ky.
2003), the misstatement here was so straightforward and prejudicial that the
jury may have inferred it into the instructions and swayed its decision to
convict in a case with less than overwhelming evidence. See State v. Strommen,
648 N.W.2d 681, 690 (Minn. 2002) (“While we note that in the final
instructions the trial court properly instructed the jury on the state’s burden of
proof, we conclude that the misstatement, in the context of this trial, presented
a source of confusion for the jury and may have played a role in the decision to
convict).]”). Based on the foregoing reasons, I respectfully dissent from the
majority’s opinion and hold the prosecutor’s misstatement of law during closing
argument to be reversible error entitling Jamison to a new trial.
Hughes, J., joins.
COUNSEL FOR APPELLANT:
Rickie A. Johnson Charles S. Kelly, Sr.
COUNSEL FOR APPELLEE:
Andy Beshear Attorney General of Kentucky
John Paul Varo Assistant Attorney General