Opinion
2012-SC-000744-MR
09-18-2014
THOMAS KESSINGER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
COUNSEL FOR APPELLANT: John Gerhart Landon Assistant Public Advocate COUNSEL FOR APPELLEE: Jack Conway, Attorney General of Kentucky James Daryl Havey Assistant Attorney General
IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.
NOT TO BE PUBLISHED ON APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE FREDERIC J. COWAN, JUDGE
NO. 11-CR-0496
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Thomas Kessinger appeals as a matter of right from a judgment of the Jefferson Circuit Court sentencing him to a twenty-four year prison term for murder, tampering with physical evidence, and abuse of a corpse. Kessinger raises three issues on appeal: 1) the trial court erred in denying his motion for a directed verdict on the murder charge; 2) the trial court's combination murder instruction violated his right to a unanimous verdict; and 3) the prosecutor engaged in misconduct during the Commonwealth's closing argument. Following our review of the records and briefs, we affirm the judgment and sentence of the Jefferson Circuit Court.
FACTS
On Friday, April 2, 2010, Rusty Martin called the Louisville Metro Police Department ("LMPD") to report that his girlfriend, Diane Tanselle, was missing. Tanselle had failed to return home that evening after running errands in Martin's pick-up truck. LMPD Detective Antoinette Leish initiated an investigation by interviewing Tanselle's family and friends, including appellant Thomas Kessinger. Tanselle and Kessinger were co-owners of a yet-to-be-opened tanning salon located off LaGrange Road in Louisville, Kentucky. In addition to their business partnership, Kessinger kept property in Tanselle's name, providing her with cash for the purpose of paying his bills. Vehicles, the tanning salon, and a home leased by Kessinger on Deronia Avenue were also in Tanselle's name. As police would soon discover, Kessinger maintained an extensive marijuana growing operation in the basement and on the second floor of the Deronia Avenue residence.
On Sunday, April 4th, Kessinger told Detective Leish that he had last seen Tanselle with her son and daughter at the tanning salon on April 2nd. Tanselle's children confirmed that they had last seen their mother at the tanning salon the day before she was reported missing. Tanselle's phone records revealed that Kessinger called her cell phone at 5:58 p.m. on Friday. Tanselle's niece, Shannon Barnes, spoke to her aunt around 6:00 p.m. that same evening, reporting that Tanselle was upset about a conversation that she had had with Kessinger.
Kessinger would not reveal his whereabouts to Detective Leish, claiming that he was staying in the Fort Knox area and did not have a local address. LMPD detectives eventually received directions to the Deronia Avenue home from Tanselle's daughter. On Monday, April 5th, Detectives Shawn Hamilton and Daniel McNamara travelled to Kessinger's home to continue the investigation into Tanselle's disappearance. Kessinger was in his green Ford Bronco in the driveway when the detectives arrived. He agreed to follow the officers to the police station to be interviewed. While Hamilton spoke to Kessinger in the driveway, McNamara observed what appeared to be a container filled with marijuana in the back of Kessinger's Bronco. Instead of investigating Kessinger's truck at the residence, the detectives asked another officer to take a closer look while they conducted a formal interview of Kessinger at the police station.
As Kessinger followed the detectives to downtown Louisville, he abruptly turned northbound on Interstate 65 towards Indiana. A chase ensued with Indiana State Police Troopers and other law enforcement officers being dispatched to provide assistance. A spike strip was deployed, causing two of Kessinger's tires to deflate. Kessinger changed direction on the interstate highway and began heading south before an Indiana State Trooper ultimately forced Kessinger's vehicle into an emergency lane. As Kessinger exited the vehicle, officers took him to the ground and handcuffed him. A container filled with marijuana was found in the cargo area of Kessinger's vehicle. A search of Kessinger's pockets yielded a Home Depot receipt reflecting the purchase of duct tape and a tarpaulin on April 4th.
In his post-arrest interview with Detective Hamilton, Kessinger admitted, that he grew marijuana inside the Deronia Avenue home but maintained it was for personal use. He claimed that he fled from detectives because of the marijuana, and also because he believed that Tanselle's disappearance would cause people to "come looking" for him. Kessinger had withdrawn the money from his bank account in preparation for leaving. When asked about a phone call to Tanselle on the morning after her disappearance, he stated that his call went directly to her voicemail. Kessinger denied any knowledge of Tanselle's whereabouts.
Officers conducted a search of Kessinger's Deronia Avenue residence where they removed several marijuana plants and equipment for marijuana cultivation. The crime scene unit uncovered spatterings of Tanselle's blood in various locations in the kitchen and on the brush of a vacuum cleaner that had apparently been used to clean the kitchen floor. Using a reactive agent, investigators also uncovered a smear of Tanselle's blood on the kitchen floor near a movable island. Tanselle's broken mobile phone was found in a grove of trees behind the home. On Wednesday, April 8th, officers found a maroon Astrovan parked a half-mile from Kessinger's home at an apartment complex. The van belonged to Kessinger but was registered in Tanselle's name. Inside they found Tanselle's decomposed body wrapped in a blanket and two tarpaulins.
Kessinger was indicted and tried on charges of murder, tampering with physical evidence, abuse of a corpse, as well as being a persistent felony offender in the second degree. At trial, defense counsel admitted that Kessinger found Tanselle's body, wrapped it in a tarpaulin, placed the body in the Astrovan, and moved the van. The defense further conceded that Kessinger admitted to disposing of Tanselle's cell phone in the back yard of the Deronia Avenue residence. Kessinger's general defense to the murder charge was that Tanselle died in Kessinger's home of natural causes or a drug overdose, and he hid the body out of fear that his grow operation would be discovered. The Commonwealth posited that Kessinger assaulted Tanselle in the kitchen and wrestled her to the ground, either intentionally asphyxiating her or attacking her to the point that she succumbed to a heart attack. The Jefferson County jury convicted Kessinger of murder, tampering with physical evidence, and abuse of a corpse. Kessinger was sentenced to twenty-four years in prison. This appeal followed.
A witness testified to seeing Kessinger park the maroon van in the space at the apartment complex where it was ultimately discovered by officers.
Two neighbors testified to seeing a man in the woods behind Kessinger's home looking down at the ground as if he was searching for something. One of the neighbors identified that man as Kessinger.
Kessinger did not testify so the defense theory was advanced through the arguments of his counsel.
The jury fixed Kessinger's punishment at twenty-four years for murder and five years for tampering with physical evidence. The parties agreed to a twelve month sentence for the abuse of a corpse conviction. The trial court sentenced Kessinger to serve the terms concurrently. Although Kessinger was convicted of being a second-degree persistent felony offender, the trial court failed to account for the conviction in its final judgment. In any event, the PFO count would not have increased Kessinger's prison term because the jury only enhanced the penalty for the concurrent tampering charge.
ANALYSIS
I. The Trial Court Properly Denied the Motion For a Directed Verdict.
For his first issue on appeal, Kessinger contends that the trial court erroneously denied his motion for a directed verdict of acquittal given that the Commonwealth failed to prove beyond a reasonable doubt that Tanselle was murdered. Kessinger also argues that a directed verdict was in order because the Commonwealth was unable to prove that he possessed the requisite mental state to support his murder conviction. As this Court has often stated, a directed verdict of acquittal should be denied when the evidence, viewed in a light most favorable to the Commonwealth, is sufficient to induce a reasonable juror to find guilt. Commonwealth v. Benham, 816 S,W.2d 186, 187 (Ky. 1991) {quoting Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983)). On appeal, a reviewing court will reverse a trial court's denial of a directed verdict only when under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt. Id.
We note that Kessinger's challenge to the trial court's denial of a directed verdict on the basis that the Commonwealth could not prove the requisite mental state is unpreserved for appellate review. Kessinger's motion for a directed verdict was based on the Commonwealth's alleged failure to prove Tanselle's medical cause of death. Our rule concerning motions for directed verdict is that the grounds for such motions must be stated specifically. Rule of Criminal Procedure ("RCr") 5.01; Pate v. Commonwealth, 134 S.W.3d 593, 597-98 (Ky. 2004); Daniel v. Commonwealth, 905 S.W.2d 76, 79 (Ky. 1995). See also Potts v. Commonwealth, 172 S.W.3d 345, 348 (Ky. 2005). The issue of Kessinger's state of mind was not raised, and is therefore unpreserved. Kessinger has not requested palpable error review and we decline to undertake such review, Shepherd v. Commonwealth, 251 S.W.3d 309, 316 (Ky. 2008), although we do address state of mind in the context of Kessinger's unanimous verdict argument.
Kessinger did not testify at trial, and the evidence against him is entirely circumstantial. Dr. Amy Burrows-Beckham, the medical examiner who performed Tanselle's autopsy, was the sole medical expert. According to Burrows-Beckham, Tanselle's body exhibited "moderate to marked" decomposition which made it difficult to detect signs of external trauma. She described discoloration of multiple body surfaces, extensive bloating of the body, blistering and ruptures of the skin, and significant changes in the body's vasculature.
Dr. Burrows-Beckham observed what appeared to be abrasions over both of Tanselle's cheek bones, injuries consistent with rug burn or road rash. She testified that such injuries could have resulted in bleeding. Other than the abrasions to Tanselle's face, there were no "bloodletting" injuries or penetrating trauma, such as gunshots or stab wounds, found on her body. While alcohol, hydrocodone, and oxycodone were found in Tanselle's body, Burrows-Beckham testified that "post-mortem redistribution," the leaching of drugs from bodily organs, may have artificially elevated the level of these readings. She further testified to having reviewed Tanselle's medical history, which included hypertension, chronic obstructive pulmonary disease, and emphysema. She observed a hardening of the small arteries of the heart, although decomposition had prevented her from determining whether Tanselle's heart was enlarged due to hypertension.
Dr. Burrows-Beckham offered three possible causes of death based on the autopsy results: drug overdose/polysubstance toxicity, natural causes (to wit, a heart attack), or asphyxia. Dr. Burrows-Beckham could not conclude with great certainty that one of the three possible causes was the likely reason for Tanselle's death. Kessinger moved for directed verdict on the murder charge on the grounds that the Commonwealth failed to prove the cause of death, and therefore failed to prove that Tanselle was murdered. The trial court denied the motion.
During her testimony, Dr. Burrows-Beckham stated the following in regards to Tanselle's cause of death: "Since she is mixing alcohol with the narcotic medication, I cannot say with great certainty that she did not die as a result of this mixture of medications with alcohol."
Dr. Burrows-Beckham testified that "due to circumstances of how [Tanselle's] body was found, I did not feel comfortable enough saying yes, she definitely died of an overdose or yes, she definitely died of heart disease . . . So, therefore, I called it undetermined."
Concerning asphyxia, Dr. Burrows-Beckham answered in the affirmative when asked by the Commonwealth if "heart attack, overdose, or asphyxia" would be a possible cause of Tanselle's death.
A defendant is guilty of murder under Kentucky Revised Statute ("KRS") 507.020 when "[w]ith intent to cause the death of another person, he causes the death of such person or of a third person[.]" As the Commonwealth failed to prove a specific cause of Tanselle's death, Kessinger argues, his conviction cannot stand. In response, the Commonwealth asserts that the presence of Tanselle's blood in Kessinger's home, as well as Kessinger's behavior before and after Tanselle's death, prove corpus delicti. "Corpus delicti," literally "the body of the crime," requires proof of (1) a death, and (2) that the death resulted from the criminal agency of another. Dolan v. Commonwealth, 468 S.W.2d 277, 282 (Ky. 1971). With the first corpus delicti element satisfied by the discovery of Tanselle's dead body, we must determine whether the Commonwealth's proof would induce a reasonable juror to find that Kessinger's "criminal agency" caused Tanselle's death. We agree that it would.
The Commonwealth argued that the presence of Tanselle's blood suggested that a struggle or assault took place in the kitchen. Visible drops of blood were observed on the edge of a movable island, as well as on the refrigerator, oven, and on the door leading outside from the kitchen. Crime scene investigators also uncovered a smear of Tanselle's blood on the floor and on the brush of a vaccum cleaner. At trial, the Commonwealth suggested that Tanselle may have suffered a nose bleed or the abrasions about her face and cheeks may have caused the blood spatters.
In addition to the blood evidence, there was proof of a sometimes acrimonious relationship between Kessinger and Tanselle. The parties had known each other for nearly a decade. They both abused alcohol. Property owned by Kessinger was kept in Tanselle's name for the purported purpose of evading taxes. The tanning business was also kept in Tanselle's name, and the jury heard testimony that the pair often quarreled, specifically concerning their business dealings. Tanselle's niece testified that she spoke with Tanselle on the last evening she was seen alive and that her aunt was upset with Kessinger. Phone records revealed that Kessinger was one of the last two people to place a call to Tanselle's phone.
The most compelling circumstantial evidence was the proof regarding Kessinger's conduct after Tanselle's death. At trial, Kessinger's defense counsel conceded that Kessinger attempted to conceal Tanselle's body by wrapping it in a tarp and placing it in the back of a van, (which he parked at an apartment complex a half mile from the Deronia Avenue residence) and that he had purposely disposed of Tanselle's cell phone in the back yard of his home. There was also evidence that someone had used a vacuum cleaner at the Deronia Avenue home to clean areas of the kitchen floor where investigators found Tanselle's blood. These actions were not the result of a spur of the moment decision on Kessinger's part. To the contrary—Kessinger purchased items used in the concealment of the body two days after she was last seen alive and four days before her body was found. When Detective Leish first asked Kessinger for his address, he reported that he did not have a local address, and that he was staying in the Fort Knox area. He further refused to reveal his whereabouts to Detective Leish at that time. Officers only became aware of the Deronia Avenue residence when Tanselle's daughter provided directions. Kessinger withdrew money from his bank prior to leading officers on a high speed chase into Indiana. He later explained that he fled because he feared that his marijuana growing operation would be discovered. Kessinger candidly admitted that he was concerned that Tanselle's disappearance would likely cause the authorities to "come looking" for him, and he that intended to flee but did not know to where he would go.
Flight and attempts at concealment are circumstantial evidence of guilt as they "suggest a guilty state of mind." Fugate v. Commonwealth, 445 S.W.2d 675, 681 (Ky. 1969) (overruled on other grounds by Sawhill, 660 S.W.2d 3); see also Murtaugh v. Commonwealth, 579 S.W.2d 619, 621 (Ky. 1979). Moreover, corpus delicti may be established by circumstantial evidence. Dolan, 468 S.W.2d at 282; see also Witt v. Commonwealth, 202 S.W.2d 612, 615 (Ky. 1947). In Timmons v. Commonwealth, 555 S.W.2d 234 (Ky. 1977), this Court examined the facts surrounding the drowning death of a young child. The defendant in Timmons exposed himself to a young boy and girl inside of his vehicle before leaving with the boy. Id. at 236. The boy's badly decomposed body was found on a river bank several days later, and the cause of death was determined to be drowning. Id. At trial, the defendant argued that the evidence was insufficient to establish corpus delicti as the Commonwealth could not prove that the child's drowning death was the result of criminal agency. Id. at 237. This Court rejected the defendant's argument, holding that the evidence raised a strong likelihood that the child was murdered by the defendant, to wit:
A sex-degenerate whose proven purpose is to engage in lascivious activities with a small child, spirits that child away from home, and later the child is found dead in a secluded area. Perhaps, indeed, he is never found at all, but we need not consider what inferences might reasonably be drawn in that case. In any event, when it is determined that the death resulted from drowning, or from some other form of suffocation, common sense suggests a definite probability that in one way or another it was brought about by the abductor.Id. at 237.
There is little doubt that the circumstantial evidence presented by the Commonwealth provided ample proof of Kessinger's guilty state of mind. As noted by defense counsel at trial, Kessinger's flight and concealment of evidence may be associated with the crimes which he admitted committing— cultivating marijuana and moving Tanselle's body. However, that evidence when coupled with other evidence, such as the destruction of Tanselle's cell phone, the blood in the home, the calculated manner in which Kessinger concealed the body, and his brazen attempt to evade capture, can also reasonably suggest something more sinister. As the Commonwealth notes, it is not plausible that Kessinger would have gone to such lengths to conceal the evidence of Tanselle's death had she simply died of natural causes or an overdose in the Deronia Avenue home when he could have simply driven her to a hospital or emergency care center.
This Court has long held that state of mind may be inferred from the circumstances surrounding the crime, including actions preceding and following the commission of the crime. Commonwealth v. Wolford, 4 S.W.3d 534, 539 (1999); Parker v. Commonwealth, 952 S.W.2d 209, 212 (Ky. 1997). To that end, discerning an intent to kill remains a "subjective matter." Smith v. Commonwealth, 737 S.W.2d 683, 688 (Ky. 1987). The jury was entitled to accept or reject the medical examiner's evidence tending to prove that Tanselle was either asphyxiated intentionally or died as a result of a physical altercation with Kessinger. See Hudson v. Commonwealth, 979 S.W.2d 106 (Ky. 1998). The Commonwealth was under no obligation to abandon one theory of guilt in favor of the other, nor was it required to produce evidence that could authoritatively foreclose all other possibilities. See Timmons, 555 S.W.2d at 237-38. ("It is not necessary that the evidence exclude other possibilities."). Even cases that lack physical evidence should be submitted to the jury if "when the various items of evidence are added together, a mosaic appears upon which a reasonable jury could look and conclude that the [defendant] is guilty." Davenport v. Commonwealth, 177 S.W.3d 763, 774 (Ky. 2005) (internal citations and quotations omitted). Such an evidentiary "mosaic" is present here. The Commonwealth provided strong circumstantial evidence that, when weighed as a whole, would lead reasonable minds to find Kessinger guilty. We conclude that the trial court properly denied Kessinger's motion for a directed verdict as the evidence was sufficient for submission to the jury.
Specifically, the Commonwealth presented a "homicide by heart attack" theory, where a fatal heart attack results from the stress of a fight or struggle between the victim and the attacker. Dr. Beckham-Burrows explained the "homicide by heart attack" theory in her direct examination: "We would call a homicide by heart attack if somebody is in some sort of an altercation or maybe if someone is breaking in and robbing a person or putting somebody under stress to the point where they have a heart attack. Now the person, the offender may not even touch the person but if they are creating enough stress in this environment that can cause somebody to have a heart attack and die, then we would call it a homicide by heart attack." This Court recognized "homicide by heart attack" as a cognizable theory of guilt in Bakara v. Commonwealth, 194 S.W.3d 313 (Ky. 2006).
II. The Combination Murder Instruction Did Not Violate the Appellant's Right to a Unanimous Verdict.
For his second argument on appeal, Kessinger contends that the trial court erroneously instructed the jury on intentional and wanton murder. The jury was given the following instruction:
You will find the defendant, THOMAS LEE KESSINGER, guilty of Murder under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That in Jefferson County between April 2, 2010 and April 7, 2010, he killed Diane Tanselle;
AND
B. That in so doing:
(1) He intentionally caused the death of Diane Tanselle; OR
(2) He was wantonly engaging in conduct which created a grave risk of death to Diane Tanselle and thereby caused the death of Diane Tanselle under circumstances manifesting an extreme indifference to human life."
Kessinger objected to the instruction on wanton murder, and further objected to the giving of all of the instructions. He now argues that the Commonwealth failed to offer proof sufficient to allow the jury to convict him under either theory of murder. He claims that the giving of the above-quoted instruction violated his right to a unanimous verdict because the evidence presented could not support a finding of guilt under both an intentional and a wanton theory.
"A unanimous verdict is required in all criminal trials by jury." KRS 29A.280. An instruction like the one offered in the case at bar, often referred to as a "combination" instruction, will not violate a defendant's right to a unanimous verdict if the evidence supports both theories of the crime. Malone v. Commonwealth, 364 S.W.3d 121, 130 (Ky. 2012). However, if either theory lacks proper evidentiary support and the jury did not specify under which theory it found guilt, a violation of the unanimous verdict requirement has occurred and reversal is warranted. Id. at 130-31.
Kessinger claims that the Commonwealth failed to present evidence of wantonness, specifically, evidence of conduct manifesting extreme indifference to human life. In Malone v. Commonwealth, we held that a combination instruction similar to the instruction in the present case was appropriate where a victim was shot at close range in the torso. Id. at 131. This Court concluded that the shots were "not so inherently lethal . . . as to rule out other possibilities," and that the jury could have rationally believed that the victim was either wantonly killed in a fit of rage, or intentionally murdered by the defendant. Id.
In Kessinger's case, the evidence was not such that the only permissible inference was that of intentional murder or aggravated wantonness. But cf. Foster v. Commonwealth, 827 S.W.2d 670 (Ky. 1991) (holding that no rational basis existed to support an unintentional homicide instruction where the victims were shot, repeatedly stabbed, and run over by a vehicle); Moore v. Commonwealth, 771 S.W.2d 34 (Ky. 1988) (holding that the trial court properly denied a manslaughter instruction where victim was shot in the head four times at close range). We need not fully recount the facts except to say that circumstantial evidence concerning Kessinger's concealment of evidence and flight, coupled with the medical examiner's testimony that Tanselle may have been intentionally asphyxiated or died from a heart attack induced by the stress of a physical assault, supports the issuance of the combination instruction. Despite Kessinger's argument to the contrary, a rational juror could have inferred from the evidence either that Kessinger assaulted Tanselle in disregard of the grave risk to her life or that he intentionally killed her. Therefore, we agree that the trial court's issuance of the combination instruction was proper, and it did not violate Kessinger's right to a unanimous verdict.
III. The Prosecutor Did Not Engage in Misconduct During Closing Argument.
During the Commonwealth's closing argument, the prosecutor suggested that the tanning business was a "front" created for the purpose of laundering money for Kessinger's marijuana business. She went on to state Tanselle "had the power in the relationship" because Kessinger's utilities bills for the Deronia Avenue home were kept in Tanselle's name. She posited that Tanselle told Kessinger that she wanted "out" of the operation and threatened to disconnect the water and electric service to the home, leading Kessinger to panic and kill her as a means to "keep his business going."
Although Kessinger did not object at trial, he now claims that the Commonwealth's closing argument contained factual assertions not supported by the record. Specifically, Kessinger objects to the Commonwealth's claim that Tanselle threatened to leave the partnership. He concedes that this argument is unpreserved and requests palpable error review pursuant to RCr 10.26 which allows an appellate court to consider an issue that was not preserved if it deems the error to be a palpable one which affected the defendant's substantial rights and resulted in manifest injustice. In determining whether an error is palpable, "an appellate court must consider whether on the whole case there is a substantial possibility that the result would have been any different." Commonwealth v. Mcintosh, 646 S.W.2d 43, 45 (Ky. 1983). After a careful review, we agree that the Commonwealth's remarks, reflecting its theory of the crime, did not constitute palpable error.
It is well settled that attorneys are afforded great latitude in their closing arguments to explain their respective theories of the case provided that they rely only on facts in evidence or reasonable inferences based on the evidence. Tamme v. Commonwealth, 973 S.W.2d 13, 38-39 (Ky. 1998); Coates v. Commonwealth, 469 S.W.2d 346 (Ky. 1971); Garrett v. Commonwealth, 48 S.W.3d 6 (2001). If a prosecutor engages in misconduct during closing argument, we will reverse if the conduct is "flagrant" or if all of the following three conditions are satisfied: 1) proof of the defendant's guilt was not overwhelming; 2) defense counsel objected, and; 3) the 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) (citing United States v. Carroll, 26 F.3d 1380 (6th Cir. 1994)).
The Commonwealth's closing argument did not constitute prosecutorial misconduct because the challenged remarks reflected a permissible inference buttressed by evidentiary support. Both Tanselle and Kessinger were unemployed and attempting to start a tanning business, having no prior experience in that industry, with one operable tanning bed. Not only were Kessinger's utility bills maintained in Tanselle's name, the grow house was leased under her name as well. Witnesses testified that the pair argued frequently over their business dealings, and probably engaged in such a disagreement on the night that Tanselle disappeared, given the testimony from Tanselle's niece. Based on this evidence, it is certainly plausible that the business relationship between Tanselle and Kessinger had so soured that it lead to Tanselle's killing. See Tamme, 973 S.W.2d at 39 (prosecutor was permitted to state an opinion based on his view of the evidence). Notably, defense counsel also relied on inferences that could be drawn from the evidence in his closing argument. Specifically, he suggested that Tanselle died of natural causes or a drug overdose, that she was later found by Kessinger at the Deronia Avenue residence, and that Kessinger panicked and disposed of her body. The circumstantial evidence of the case certainly allowed for these inferences drawn by the defense and, in the same vein, the prosecutor did not engage in misconduct by similarly relating the Commonwealth's theory of the crime to the jury through reasonable inferences based on the evidence.
Finally, even if the Commonwealth had engaged in misconduct, the conduct was not flagrant. The statements comprised roughly three minutes of the thirty-eight minute closing argument. The challenged statements were not delivered in an inflammatory manner, nor were they repeated. In short, the argument was not flagrant conduct. Moreover, Kessinger did not object. Thus any prosecutorial misconduct analysis must end there, as one of the three requirements for reversal on prosecutorial misconduct grounds cannot be established. Barnes, 91 S.W.3d at 568. In sum, the prosecutor made a permissible closing argument and there was no palpable error.
For the reasons stated herein, we affirm the judgment and sentence of the Jefferson Circuit Court.
All sitting. All concur. COUNSEL FOR APPELLANT: John Gerhart Landon
Assistant Public Advocate
COUNSEL FOR APPELLEE: Jack Conway, Attorney General of Kentucky James Daryl Havey
Assistant Attorney General