Opinion
2023-SC-0261-MR
06-13-2024
AVREN SCOTT APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
COUNSEL FOR APPELLANT: Jennifer Elizabeth Hubbard Louisville Metro Public Defender COUNSEL FOR APPELLEE: Russell M. Coleman Attorney General of Kentucky James Grant Burdette Assistant Attorney General
NOT TO BE PUBLISHED
ON APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE JULIE KAELIN, JUDGE NO. 21-CR-002042
COUNSEL FOR APPELLANT:
Jennifer Elizabeth Hubbard
Louisville Metro Public Defender
COUNSEL FOR APPELLEE:
Russell M. Coleman
Attorney General of Kentucky
James Grant Burdette
Assistant Attorney General
MEMORANDUM OPINION
A Jefferson County jury found Appellant Avren Scott guilty of attempted murder, being a convicted felon in possession of a handgun, and being a persistent felony offender in the first degree. As recommended by the jury, the trial court sentenced Scott to fifty years in prison. Scott claims on appeal that the trial court committed four errors warranting reversal of his conviction. He claims the trial court erred (1) by denying his motion to strike a potential juror for cause; (2) by allowing the victim to display his gunshot scars to the jury; (3) by not sua sponte declaring a mistrial; and (4) by allowing the prosecutor to improperly testify through a witness. Upon review, we affirm the Jefferson Circuit Court's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On July 13, 2021, Ashley was out with her friend Kaitlyn and "Avo," later identified as Avren Scott. Ashley got intoxicated to the point she passed out in her car. While passed out, Ashley's money was taken from her. The next morning Ashley called her best friend Jordan and told him about her money being stolen. Ashley explained that she had been with Kaitlyn. Jordan suggested that Ashley and Kaitlyn come by his apartment, and he would talk with Kaitlyn to see if she was involved.
Ashley drove to Jordan's apartment accompanied by Kaitlyn, Scott, and an individual named Trey. Trey was in the front passenger seat and Kaitlyn and Scott were in the back seat, with Scott being on the passenger's side of the car. When Jordan walked out, he headed to the rear passenger door, expecting to be able to get in. When he opened the door, he noticed a man he did not recognize. Ashley instructed Jordan to come to her window to talk to her. Scott told Jordan to get in the car. Jordan could sense something was not right and told Scott "No." Jordan began walking to his apartment. Scott exited the vehicle and shot Jordan in his left arm, by his spine, and in his left hip.
The bullet in Jordan's hip remained lodged in his body at the time of Scott's trial.
Scott got back into the car, grabbed a change of clothes and fled along with the other male. Ashley parked her car and ran to check on Jordan. The detective who arrived on the scene immediately started rendering first aid to Jordan. Jordan was taken to the hospital. The detective obtained surveillance video showing the incident and the shooter hiding the gun and later coming back to retrieve it. Ashley identified Scott as the shooter.
A Jefferson County Grand Jury indicted Scott for criminal attempt to commit murder, assault in the first degree, possession of a handgun by a convicted felon, and being a persistent felony offender in the first degree. Scott proceeded to trial. The Commonwealth called three witnesses, the detective, Ashley, and Jordan. The jury found Scott guilty as charged, except for assault in the first degree, a lesser included offense of attempted murder. The jury recommended that Scott serve fifty years in prison. The trial court sentenced Scott accordingly. This appeal followed.
The jury recommended a sentence of twenty (20) years, enhanced to thirty-five (35) years, on the attempted murder charge. The jury recommended a sentence of ten (10) years, enhanced to fifteen (15) years, on the handgun possession charge. The jury recommended both sentences run consecutively.
Additional facts pertinent to the claims raised in Scott's appeal are set forth below.
ANALYSIS
I. The trial court did not abuse its discretion by denying Scott's motion to strike Juror 3057560 for cause.
Scott's first claim of error is that the trial court abused its discretion by not striking Juror 3057560 for cause. While Scott views this claim of error as preserved, he requests palpable error review if the Court does not agree. Based upon the facts of this case and the procedure required to properly preserve for appeal the question of whether the defendant was denied a peremptory challenge by a trial court's erroneous failure to grant a for-cause strike, we agree with the Commonwealth that the issue was not preserved. We further conclude that palpable error relief is not warranted.
"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).
Kentucky Rule of Criminal Procedure (RCr) 10.26 states in full:
A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.
At the beginning of voir dire, the trial court introduced the parties. When introducing the individuals representing the Commonwealth, the trial court asked the venire if anyone knew any of those individuals. Juror 3057560 responded that he knew one of the prosecutors. The trial court asked Juror 3057560 how he knew the prosecutor. Juror 3057560 stated that "he used to work with him." The trial court nor counsel asked Juror 3057560 any further questions.
Defense counsel moved to strike Juror 3057560 for cause. The trial court denied the motion, explaining that there was not sufficient questioning of Juror 3057560 to warrant the strike. Defense counsel supplemented his argument, citing Sholler v. Commonwealth, 969 S.W.2d 706 (Ky. 1998). The trial court again denied the motion on the same basis, explaining that the questioning did not provide information about the work-related relationship which would indicate Juror 3057560 was biased. The prosecutor added that he did not have any cases with Juror 3057560, he might see him a couple of times a year, and he had not worked with him in ten years directly or thereabouts. The trial court maintained its ruling.
After challenges for cause, the parties determined their peremptory challenges. The trial court read aloud both parties' peremptory strikes from their strike sheets and then laid them to the side. Defense counsel struck Juror 3057560. After it was determined which jurors remained in the pool and before the announcement of which jurors would be struck randomly, in relation to the strike of Juror 3057560, defense counsel stated:
Pertinently, RCr 9.36(2) states in part:
After the parties have been given the opportunity of challenging jurors for cause, each side or party having the right to exercise peremptory challenges shall be handed a list of qualified jurors drawn from the box equal to the number of jurors to be seated plus the number of allowable peremptory challenges for all parties. Peremptory challenges shall be exercised simultaneously by striking names from the list and returning it to the trial judge.
Judge I think, at this time, the defense, since we used one of our peremptories for one of them that we used a "for cause" strike for, I have to put that on the record before we do the random [draw to empanel the jury], I think is the procedure on that.
Defense counsel explained that he made a for-cause strike of Juror 3057560, the trial court denied the strike, and if the defense had not been required to use the peremptory strike on Juror 3057560, it would have struck the juror in seat number forty-three, Juror 3127441. Juror 3127441 was seated on the jury.
The video record indicates that the juror in seat forty-three was Juror 3127441.
Scott alleges that he was denied his right to an impartial jury guaranteed by the Sixth Amendment to the United States Constitution, as well as Section Eleven of the Kentucky Constitution. Before reaching the merits of Scott's argument, we consider the Commonwealth's argument that Scott's for-cause challenge to Juror 3057560 was not properly preserved.
Commonwealth v. Douglas, 553 S.W.3d 795, 799-800 (Ky. 2018), explains:
Denial of a defendant's right to an impartial jury is a structural error. Hayes v. Commonwealth, 175 S.W.3d 574, 586 (Ky. 2005). It is therefore not subject to harmless error analysis, as prejudice is presumed. See Shane v. Commonwealth, 243 S.W.3d 336, 341 (Ky. 2007) ("Harmless error analysis is simply not appropriate where a substantial right is involved."). "[T]he defining feature of a structural error is that it 'affect[s] the framework within which the trial proceeds,' rather than being 'simply an error in the trial process itself.' For the same reason, a structural error 'def[ies] analysis by harmless error standards.'" Weaver v. Massachusetts, ___U.S.___, 137 S.Ct. 1899, 1907-08, 198 L.Ed.2d 420 (2017) (internal citations omitted). For instance, "[f]ailure to remove biased jurors taints the entire trial," Wolfe v. Brigano, 232 F.3d 499, 503 (6th Cir. 2000), and prejudice is presumed from such a deprivation of a defendant's right to an impartial jury.
In 2019, this Court rendered Floyd v. Neal, 590 S.W.3d 245 (Ky. 2019), which explains proper procedure for preserving for review the complaint that the litigant was denied a peremptory challenge by a trial court's erroneous failure to grant a for-cause strike. That procedure, in contrast to the decision in Sluss v. Commonwealth, 450 S.W.3d 279 (Ky. 2014), does not allow the litigant to substantially comply with Gabbard v. Commonwealth, 297 S.W.3d 844, 854 (Ky. 2009). Specifically, the litigant may not use oral identification, instead of written identification on the strike sheet, of additional jurors he would have struck peremptorily if the allocated strikes were not used to remove jurors unsuccessfully challenged for cause.
Although not at issue in the case, due to circumstances presenting a less-than-clear record as to the issue's preservation, Ward v. Commonwealth, 587 S.W.3d 312, 327 (Ky. 2019), also explained the proper procedure for preserving the issue of whether a litigant was denied a peremptory strike due to the trial court erroneously denying a strike for cause. While recognizing Sluss as precedent allowing a party to substantially comply with Gabbard's requirement "that the defendant must identify on the strike sheet other jurors he would have struck" by instead identifying those jurors orally on the record, precedent applicable to Ward's circumstances, 587 S.W.3d at 327 n.41, the Ward Court stated:
Moving forward, however, this Court finds it necessary to instate a new rule with respect to juror errors: To complain on appeal that a party was forced to use one of the party's peremptory challenges because of the trial court's erroneous failure to grant a for-cause strike, the defendant must use a peremptory strike on that juror and show that the peremptory strike was used on their strike sheet. The defendant must then designate, again on his peremptory strike sheet, the jurors he would have struck had the peremptory strike been available to him. We recognize trial practice varies across the Commonwealth, but we find it necessary to require each of these designations to appear clearly on the party's strike sheet to achieve for appellate review a precise preservation of alleged jury-selection errors.Id. at 327.
In Floyd, the question of whether the for-cause challenge was properly preserved was squarely before the Court. Floyd argued, in part, that Neal did not indicate on her strike sheet the jurors she would have used peremptory strikes on if she had not been required to use them on Juror A, and instead stated them orally on the record. 590 S.W.3d at 247. Floyd's survey of caselaw provided clarity of the procedure required to properly preserve the argument that a trial court erred by failing to strike a potential juror for cause. That review highlighted that Sluss was a departure from Gabbard's holding that "in order to complain on appeal that he was denied a peremptory challenge by a trial judge's erroneous failure to grant a for-cause strike, the defendant must identify on his strike sheet any additional jurors he would have struck," Floyd, 590 S.W.3d at 249, and Gabbard's progeny recognizing that the procedure must be strictly complied with, id. at 248-29. Floyd plainly expressed that Gabbard's requirement must be strictly complied with in order to preserve the question whether the trial court erred by failing to strike a juror for cause and overruled Sluss's contrary holding that a litigant may substantially comply with Gabbard by identifying other would-be peremptory strikes orally on the record. Id. at 250.
In this case, for unknown reason, the jury strike sheets were not included in the record for review on appeal, see Rule of Appellate Procedure (RAP) 24(A)(1) and RAP 26(B), and the record has not been supplemented to include them, see RAP 25. Rather than arguing that defense counsel followed procedure and indicated on the strike sheet that he would have struck Juror 3127441 if he not had to peremptorily strike Juror 3057560, Scott relies on his oral statements on the record to show that he preserved the issue for appeal. To rebut the Commonwealth's argument that Floyd reaffirmed the strict construction of Gabbard and Scott's argument is unpreserved, Scott argues that the circumstances of his case are distinguishable from Floyd.
RAP 24(A) identifies the composition of the record on appeal. As to the written record, subsection (1) provides that:
The entire original written record on file in the office of the clerk of the trial court, including juror strike sheets made pursuant to RCr 9.36, designations or stipulations of the parties with respect to the record, and a copy of the certification of record on appeal, including a copy of the case history and docket shall be included.
RAP 26(B) deals with the duties of the circuit court clerk when preparing and certifying the record. As to the written record, subsection (1) states in pertinent part:
The circuit court clerk shall prepare and certify the entire original written record on file in the clerk's office. All parts of the written record on appeal shall be arranged in the order in which they were filed or entered, including juror strike sheets made pursuant to RCr 9.36.
RAP 25 pertains to unavailable or omitted proceedings. It states in pertinent part:
(B) Effect of Omitted Record. The appellate court shall not consider any claim or contention which is based upon a portion of the record below that has not been made part of the record before the appellate court. The record may, however, be corrected or modified as set forth in the following sections (C), (D), and (E).
(C) Circuit Clerk May Correct Record. If material properly designated by a party is omitted from the record by error or accident, the party may notify the circuit clerk who shall file a supplemental certification and transmit that omitted portion of the record to the appellate court without further order of that court.
(D) Power of the Court to Correct or Modify the Record.
(1) If any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by the trial court.
(2) If anything material to either party is omitted from the record on appeal by error or accident or is misstated therein, the parties by agreement, or the trial court, either before or after the record is transmitted to the appellate court, or the appellate court, on a proper suggestion or of its own initiative, may direct that the omission or misstatement shall be corrected, and if necessary that a supplemental record shall be certified and transmitted by the clerk of the trial court.
(3) All other questions as to the content and form of the record shall be presented to the appellate court.
Intentional or not, the argument is seemingly in accordance with RAP 25(B).
In Floyd, the appellant presented three arguments. In addition to complaining that Neal did not indicate on her strike sheet, but orally identified the jurors she would have used peremptory strikes on if she had not been required to use them on Juror A, Floyd made two related complaints. Floyd also complained that Neal identified the juror she would have otherwise used her peremptory strikes on after both parties discussed their peremptory strikes with the court and that Neal moved the trial court for removal of one juror for cause, yet identified two jurors she would have used peremptory strikes on. 590 S.W.3d at 247.
With regard to the last of the three arguments, Scott contends that because it could not be known which juror Neal really would have picked to use a peremptory strike on, the Court emphasized that a party must clearly identify on the strike sheets the prospective juror that the party would have struck. Scott further argues, that here, in contrast, the video record supports and proves defense counsel indicated which prospective juror he would have struck with a peremptory challenge but for using one on Juror 3057560. Scott relies on the fact that what is seen and heard on the video is unambiguous. That is, there is no confusion about which juror defense counsel moved to strike for cause, the trial court's denial of that motion, defense counsel utilizing all his peremptory strikes, and defense counsel stating clearly that if he did not have to use a peremptory strike on juror in seat 6 (Juror 3057560), juror in seat 43 (Juror 3127441) would have been struck.
We cannot agree that Floyd may be parsed to disregard its clear enunciation of the procedure to preserve the question of whether the trial court erred by failing to strike a juror for cause, see id. at 252, and its overruling of Sluss's holding that stating would-be peremptory strikes verbally on the record constitutes substantial compliance with Gabbard, id. As Floyd reminds us, "[Requiring both sides to make their peremptory strikes concrete by writing them down prior to the parties discussing their strikes with the court safeguards the fairness of [the jury selection] process." Id. at 251. We agree with the Commonwealth that the issue was not preserved. However, at Scott's request, we review for palpable error.
Floyd explains that in order to preserve the issue of whether the trial court erred by failing to strike a juror for cause, the litigant must: (1) move to strike the juror for cause and be denied; (2) exercise a peremptory strike on said juror, and show the use of that peremptory strike on the strike sheet, and exhaust all other peremptory strikes; (3) clearly indicate by writing on her strike sheet the juror she would have used a peremptory strike on, had she not been forced to use a peremptory on the juror complained of for cause; (4) designate the same number of would-be peremptory strikes as the number of jurors complained of for cause; (5) the would-be peremptory strikes must be made known to the court prior to the jury being empaneled; and (6) the juror identified on the litigant's strike sheet must ultimately sit on the jury. Id. at 252.
Kentucky Rule of Criminal Procedure (RCr) 9.36(1) establishes the standard by which the trial court decides whether a juror must be disqualified for cause. It states: "When there is reasonable ground to believe that a prospective juror cannot render a fair and impartial verdict on the evidence, that juror shall be excused as not qualified."
As described above, at trial, based on a relationship between Juror 3057560 and the prosecutor, defense counsel asked the trial court to strike Juror 3057560. In support, defense counsel cited Sholler for the premise that a potential juror may be disqualified from service because of connection to the case, parties, attorneys, and that bias will be implied as a matter of law. Sholler states:
Bias is implied from any close relationship, familial, financial or situational, with any party, counsel, victim, or witness, Ward v. Commonwealth, Ky., 695 S.W.2d 404 (1985), which, though not so close as to cause automatic disqualification, nevertheless transgresses the concept of a fair and impartial jury. Montgomery v. Commonwealth, Ky., 819 S.W.2d 713 (1991); Marsch v. Commonwealth, Ky., 743 S.W.2d 830 (1987). This definition does not encompass a mere social acquaintanceship in the absence of other indicia of a relationship so close as to indicate the probability of partiality.969 S.W.2d at 709. In Ward v. Commonwealth, 695 S.W.2d 404, 407 (Ky. 1985), this Court stated: "Once that close relationship is established, without regard to protestations of lack of bias, the court should sustain a challenge for cause and excuse the juror."
As the trial court explained, voir dire had not established a close relationship between Juror 3057560 and the prosecutor. With that being so, Scott contends that Paulley v. Commonwealth, 323 S.W.3d 715 (Ky. 2010), is a case that supports a conclusion that the trial court erred despite the limited record and no in-depth questioning done by either party. That is, Scott argues that there is nothing in the record that indicates Juror 3057560 could be fair and impartial. However, the facts in Paulley are not comparable to those in this case.
In Paulley, the challenged juror was a victim of a crime, her son had been a victim of a crime, and she had previously been an instructor for the Indianapolis Police Department. Id. at 719. When asked about bias due to these experiences and relationships, the juror only expressed doubt about being impartial due to her son being a crime victim. See id. The Court explained:
But far more troubling is the fact that prospective juror # 220248 was unable to disclaim any bias stemming from being the mother of a crime victim. . . . When asked directly whether she could be fair and impartial, the juror stated she was not sure. . . . Unfortunately, this issue was not deeply explored by follow-up questions. The last word on this crucial subject was the juror's honest-seeming expression of doubt about her ability to be fair and impartial. . . . As stated previously, however, we must afford a criminal defendant the benefit of the doubt as it pertains to a juror's ability to be impartial.Id. at 721. Unlike in this case, the Paulley Court was addressing circumstances in which the challenged juror was questioned about bias, and doubt was raised and unresolved as to the juror's impartiality.
Under 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 perceptible, plain, obvious and readily noticeable." Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006). "When an appellate court engages in a palpable error review, its focus is on what happened and whether the defect is 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).
Under this standard, we conclude that the Court did not commit palpable error. RCr 9.36(1) mandates the removal of a prospective juror if there is "a reasonable ground to believe" that the juror cannot render a fair and impartial verdict. "To determine whether a reasonable ground existed to doubt the challenged juror's ability to render a fair and impartial verdict, the trial court 'must weigh the probability of bias or prejudice based on the entirety of the juror's responses and demeanor.'" Sturgeon v. Commonwealth, 521 S.W.3d 189, 196 (Ky. 2017) (quoting Sluss, 450 S.W.3d at 282). Nothing in the trial court's analysis of the voir dire and case law reveals an "easily perceptible, plain, obvious and readily noticeable" error. But furthermore, even if Scott's challenge to Juror 3057560 were properly preserved, under the circumstances of this case, it is apparent that the trial court's decision was not arbitrary, unreasonable, unfair, or unsupported by sound legal principles, when it denied Scott's motion to strike Juror 3057560 for cause.
II. The trial court did not abuse its discretion by allowing the victim to display his gunshot scars to the jury.
Scott's second claim of error is that the trial court erred when it allowed the Commonwealth to exhibit the victim's gunshot wounds and scars to the jury. Scott argues that the trial court failed to properly weigh this evidence under Kentucky Rule of Evidence (KRE) 403. Scott views this claim of error as preserved, but seeks palpable error review if the Court finds otherwise. The Commonwealth contends that Scott's second claim of error is not preserved because Scott's theory of error on appeal is different from the theory presented to the trial court. We conclude that the claim is preserved and that the trial court did not abuse its discretion by allowing the victim to display his gunshot wounds and scars to the jury.
At trial, the Commonwealth called the victim to testify. Jordan testified to the events of the shooting, how many times and where he was shot, and the effects of being shot, including almost bleeding to death, difficulty holding objects, tingling in his hands, and the related mental stress becoming physical. As part of its proof that Scott committed assault in the first degree, the Commonwealth then asked Jordan to exhibit his scars to the jury. When defense counsel objected, the Commonwealth explained at a bench conference that it was not going to put on medical proof and wanted to show Jordan's significant scars and the location of where he was shot to prove that Jordan suffered serious physical injury. The trial court ruled that showing Jordan's scars was relevant and the Commonwealth could prove its case by showing Jordan's scars or photos of the scars. When defense counsel expressed concern with Jordan taking off his clothes in the courtroom and that pictures would be more appropriate to prove serious physical injury and that photos were anticipated, the trial court asked defense counsel if he was worried that the jury would be offended and to clarify the objection. Defense counsel stated that, "I don't think its probative for the witness to be taking his clothes off and photographs would be more appropriate." The trial court overruled defense counsel's objection, explaining Jordan's display of his body where the wounds were located was not evidentiarily improper for the jury to see.
KRS 500.080(18) defines "serious physical injury" as "physical injury which creates a substantial risk of death, or which causes serious and prolonged disfigurement, prolonged impairment of health, prolonged loss or impairment of the function of any bodily organ, or eye damage or visual impairment."
Photos were not introduced into evidence.
On appeal, Scott argues that the trial court abused its discretion in allowing the Commonwealth to exhibit Jordan's gunshot wounds to the jury. He particularly argues that the trial court automatically deemed this evidence relevant without doing the KRE 403 balancing test. He argues that the gunshot wounds, while they may be relevant, had low probative value, and the probative value was substantially outweighed by undue prejudice and needless presentation of cumulative evidence. The Commonwealth contends, citing Springer v. Commonwealth, 998 S.W.2d 439 (Ky. 1999), and Tucker v. Commonwealth, 916 S.W.2d 181, 183 (Ky. 1996), that Scott's second claim of error is not preserved because this KRE 403 argument isn't close to the objection Scott made at trial. The Commonwealth asserts that while Scott complied with KRE 103(a)(1) and stated specific grounds for his objection, the explanation did not involve any concern with the jury seeing the scars and a KRE 403 complaint was not apparent from the context.
Overruled on other grounds by Lanham v. Commonwealth, 171 S.W.3d 14 (Ky. 2005).
KRE 103(a)(1) provides that as to the effect of an erroneous ruling on evidence,
Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected; and . . . [i]f the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context.
Scott disagrees with the Commonwealth and citing Downs v. Commonwealth, 620 S.W.3d 604, 615-16 (Ky. 2020), in which the Commonwealth presented a similar argument but did not prevail, argues that after his objection, the context of the discussion at the bench conference made the objection apparent. Scott argues that following the trial court's ruling that the evidence was relevant, Scott responded specifically to the trial court that his objection was that the evidence was not probative. Scott asserts that from the context, this would signal to the trial court to undertake the proper balancing under KRE 403, which the trial court did not do. Upon review, we agree with Scott that the objection and the bench conference discussion provided the context for a KRE 403 analysis, but disagree with Scott that the trial court failed to perform a proper KRE 403 balancing test.
The trial court, the gatekeeper of evidence, is guided by Kentucky Rules of Evidence. See Burdette v. Commonwealth, 664 S.W.3d 605, 615 (Ky. 2023). Under these rules, evidence which is not relevant is not admissible, but all relevant evidence, evidence having 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, is admissible. KRE 401, 402. However, KRE 403 describes certain circumstances which may make relevant evidence inadmissible. Specifically, KRE 403 authorizes exclusion of relevant evidence when "its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Pursuant to these rules, the trial court's first determination is whether the evidence is relevant. Burdette, 664 S.W.3d at 615.
"Evidence that is unduly prejudicial is that which 'appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish, or otherwise may cause a jury to base its decision on something other than the established propositions in the case.'" Breazeale v. Commonwealth, 600 S.W.3d 682, 693-94 (Ky. 2020) (quoting Richmond v. Commonwealth, 534 S.W.3d 228, 232 (Ky. 2017)).
Here, the trial court concluded that based on the definition of "serious physical injury," the display of the location and scars from Jordan's gunshot wounds was relevant, and defense counsel did not object to the relevancy of the display. Instead, defense counsel argued that the Commonwealth should introduce photos of the wounds and that the display was not probative. Based upon these objections, the trial court ruled that the Commonwealth could introduce its evidence through the display or through photos, a ruling in accordance with the principle that the Commonwealth may prove its case by competent evidence of its own choosing, see Pollini v. Commonwealth, 172 S.W.3d 418, 424 (Ky. 2005), and indicated that the display of Jordan's scars did not involve a display of body parts which would evoke an emotional reaction or otherwise cause the jury to base its decision on an improper basis. It is evident that the trial court understood defense counsel's objection as shorthand and to be one which had the potential to exclude the relevant evidence, that the probative value of the display of the scars was substantially outweighed by the danger of unduly prejudicing the jury.
In Hall v. Commonwealth, dealing with the trial court allowing multiple gruesome photos into evidence without performing the KRE 403 balancing test, this Court explained, "When there is already overwhelming evidence tending to prove a particular fact, any additional evidence introduced to prove the same fact necessarily has lower probative worth, regardless of how much persuasive force it might otherwise have by itself." 468 S.W.3d 814, 824 (Ky. 2015). Hall also explained that when the evidence is highly inflammatory and prejudicial, evidentiary alternatives may play a role in the balancing test. Id. Under those circumstances, "the trial court should consider whether evidentiary alternatives would sufficiently prove the fact at issue without a comparable risk of prejudice." Id. (quoting Ratliff v. Commonwealth, 194 S.W.3d 258, 271 (Ky. 2006) (citing Old Chief v. United States, 519 U.S. 172, 184-85 (1997); Norris v. Commonwealth, 89 S.W.3d 411, 416 (Ky. 2002)).
Based upon Hall, Scott argues that the display of Jordan's scars had low probative value as other evidence already introduced, in particular, the video surveillance showing Jordan being shot and Jordan's direct testimony, was more competent to prove serious physical injury. The Commonwealth, on the other hand, asserts the evidence of Jordan's scars, consisting of their severity and their location to Jordan's spine and vital organs, made them highly probative to prove serious physical injury. The probative value of the display of Jordan's scars cannot be denied. While the display of Jordan's scars may have been of lesser probative value following introduction of the surveillance video and Jordan's testimony regarding his injuries, the question ultimately is whether undue prejudice might flow from the evidence if admitted and if so, it outweighed the probative value of the evidence. In this case, the trial court considered defense counsel's argument that Jordan's removal of his clothing was inappropriate and concluded that the jury viewing parts of Jordan's body to see the scars - his arm, back, and hip - was not unduly prejudicial.
On appeal, Scott compares his case to Thorpe v. Commonwealth, 295 S.W.3d 458 (Ky. App. 2009). In that case, Thorpe was convicted of fraudulently obtaining a prescription for a controlled substance from her mother's doctor. Id. at 460. At trial, the Commonwealth's witness testified that Thorpe's mother was not receiving proper care while living with Thorpe and that Thorpe's mother looked "as if she had been released from a concentration camp." Id. The Court of Appeals concluded that the comments about Thorpe's mother's "condition in no way related to Thorpe's drug charge and were calculated to arouse the animus of the jury against her," id. at 462, and that the comments "very likely could have tainted the jury," id. at 463. The Court of Appeals further concluded that "the accusations and innuendoes of Thorpe's faulty caretending of her mother outweighed and overshadowed the scant evidence offered by the Commonwealth as to her criminal intent to fraudulently obtain the prescription at issue." Id. The Court of Appeals ultimately concluded that Thorpe was denied a fair trial, in part, because of the trial court's error of admitting the testimony about Thorpe's mother's condition, which the Court of Appeals determined could not have been cured by the offered but declined admonition. Id. at 463-64.
Scott argues that his case is similar to Thorpe, in that the Commonwealth, by requesting Jordan to show his gunshot wounds and scars to the jury, did nothing more than cause the jury to feel sympathy toward him and arouse animus toward Scott. Scott further argues that these feelings were further amplified by the Commonwealth's statements regarding how close the scars were to Jordan's spine, how large the scars were, and how Jordan still has a bullet in his body today.
The question of whether the probative value of the evidence outweighs the prejudicial effect is within the discretion of the trial court. Rake v. Commonwealth, 450 S.W.2d 527, 528 (Ky. 1970). "Indeed, in reviewing the trial judge's balancing under KRE 403, the appellate court must view the evidence in the light most favorable to its proponent, giving the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value." Major v. Commonwealth, 177 S.W.3d 700, 707 (Ky. 2005) (citing Turpin v. Kassulke, 26 F.3d 1392, 1399, 1400 (6th Cir. 1994)). Furthermore, although Scott complains that other evidentiary alternatives, photos, were sufficient to prove Jordan's serious physical injury, as long as the evidence is not highly inflammatory and unduly prejudicial, the Commonwealth will not be compelled to rely on evidentiary alternatives. Ratliff, 194 S.W.3d at 271.
Upon review, we do not agree with Scott that Thorpe leads to the conclusion that the trial court erred by allowing Jordan to display his scars rather than requiring the Commonwealth to rely on photos of his scars to prove serious physical injury. Even when admitting gruesome photos when a heinous crime is at issue, rarely does a trial court abuse its discretion under KRE 403. Hall, 468 S.W.3d at 827. "In order for a jury to be able to size up a case fairly and wisely it must be allowed to gain a reasonable perspective . . . ." Gall v. Commonwealth, 607 S.W.2d 97, 107 (Ky. 1980). There is no dispute that Jordan's gunshot wounds and scars were relevant and of probative value to proving Jordan suffered serious physical injury. While Jordan's testimony was evidence that he suffered serious physical injury, the visual display of the gunshot scars, whether through Jordan himself or through photos, was part of the reasonable perspective of the injury Jordan suffered. We cannot conclude that the trial court abused its discretion by determining that Jordan's display of his gunshot scars was not inflammatory and unduly prejudicial and allowing Jordan to display his scars to the jury.
Overruled on other grounds by Payne v. Commonwealth, 623 S.W.2d 867 (Ky. 1981).
Scott also argues that the scar display was duplicative and a needless presentation of cumulative evidence, which additionally outweighed any probative value. While we do not view this argument as evident based upon the context of the objection and discussion at the bench conference, we conclude that even if this argument were preserved, the trial court did not err. Specifically, the trial court did not abuse its discretion by not finding the display of Jordan's scars duplicative or cumulative to the photographs at the crime scene, depicting the amount of blood at the scene; the surveillance video of the shooting; the still photos of the surveillance video of the shooting; the detective's testimony about the number of times Jordan was shot, the amount of blood at the scene, and that he immediately began rendering first aid; and Jordan's own testimony about the number of times and places he was shot, that he nearly bled to death that day, and the since the incident he has had both physical and mental issues. As discussed above, presentation of Jordan's wounds and scars allowed the jury to see a fuller perspective of the nature of the injuries Jordan suffered.
III. The trial court did not commit palpable error by not declaring a mistrial sua sponte.
Scott's third claim of error is that the trial court erred when it failed to declare a mistrial sua sponte after the detective testified that the man in the surveillance video that shot Jordan was Scott. Scott requests palpable error review of this unpreserved claim. The Commonwealth disagrees that the trial court erred by not declaring a mistrial on its own motion and further asserts that the Court should not review Scott's claim for palpable error because Scott received the relief he requested when he objected to the detective's testimony. We conclude that under the circumstances of this case - defense counsel did not move for a mistrial or seek other relief following the trial court's admonishment to the jury to disregard the detective's testimony - no palpable error occurred.
At trial, the detective was the first of the three witnesses to testify. The detective testified that his office obtained from the apartment complex the surveillance video that captured the shooting. When the Commonwealth played the video, the detective stated, "Up at the top here is an unidentified male running, and in this white shirt here is Avren running away from the scene." Defense counsel objected on the grounds that the detective did not have personal knowledge that the man in the white shirt was Scott. The trial court agreed the testimony was improper and instructed the detective to only refer to the man in the white shirt as "the shooter." The trial court then asked, "Anything else?" Defense counsel requested an admonition. The trial court admonished the jury to disregard the detective's reference to the person in the white shirt being Scott. Defense counsel did not request a mistrial at that point, and now seeks palpable error review, claiming the trial court erred by not declaring a mistrial on its own.
With regard to appellate review, it is understood that counsel must make timely objection to an error to be raised on appeal. Generally, the failure to object to an error is viewed as a forfeiture of the error, making the error unappealable. See Tackett v. Commonwealth, 445 S.W.3d 20, 29 (Ky. 2014). However, there are times when a litigant may intentionally not object to an error. When those actions clearly indicate a conscious choice on the part of the litigant to forego an objection, those actions amount to "waiver." "[Forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right." Gasaway v. Commonwealth, 671 S.W.3d 298, 314 (Ky. 2023) (citing Kontrick v. Ryan, 540 U.S. 443, 458 n.13 (2004)). The opportunity for appellate review differs under those circumstances. "The valid waiver of a known right precludes appellate review while a forfeited claim of error may be reviewed for palpable error." Id. (citing United States v. Olano, 507 U.S. 725, 733 (1993)).
RCr 10.26 palpable error review is a tool which permits the appellate court to further the interests of justice if counsel fails to make proper objections and to bring to the trial court's attention to an egregiously prejudicial issue. As often cited Brewer informs, there are multiple requirements which must be met before relief may be granted under RCr 10.26. 206 S.W.3d at 349. Consequently, if one requirement is not met, it is not necessary for the RCr 10.26 analysis to evaluate the other elements. The requirement that the error be obvious or clear under current law, see Lamb v. Commonwealth, 510 S.W.3d 316, 325 (Ky. 2017) ("Implicit in the concept of palpable error correction is that the error is so obvious that the trial court was remiss in failing to act upon it sua sponte."), is the primary element undergirding the Commonwealth's arguments that Scott's claim should not be reviewed.
RCr 10.26 was adopted in 1981. It appears that our jurisprudence didn't incorporate Black's Law Dictionary's definition of "palpable" - "easily perceptible, plain, obvious and readily noticeable" into a published criminal case until Brewer in 2006. See Brewer, 206 S.W.3d at 349 n.8 (citing Burns v. Level, 957 S.W.2d 218, 222 (Ky. 1997) (citing Black's Law Dictionary (6th ed.1995)); Smith v. Commonwealth, 2002-SC-0759-TG, 2004 WL 535975, at *2 n.3 (Ky. Mar. 18, 2004).
"Trial judges are not expected to detect and correct sua sponte every obscure and subtle error that escapes the attention of trial counsel, but when an error at trial is easily perceptible, obvious, and readily noticeable, and is so egregiously prejudicial as to cause manifest injustice, then the trial court has a duty to take corrective action." Nami Res. Co. v. Asher Land & Min. Ltd., 554 S.W.3d 323 (Ky. 2018).
West v. Commonwealth, 780 S.W.2d 600 (Ky. 1989), is instructive of the use of palpable error review in cases like this when there is not a contemporaneous motion for a mistrial following the trial court's admonishment of the jury. In West, like here, upon defense counsel objecting to testimony, the trial court sustained the objection, and upon request, admonished the jury and defense counsel did not move for a mistrial. Id. at 602. West explained that while relief may be available in a proper case under RCr 10.26, RCr 10.26 does not preclude waiver of palpable error. Id.
West, relying on principles which remain unchanged, explained:
If a party claims entitlement to a mistrial, he must timely ask the court to grant him such relief. Jenkins v. Commonwealth, Ky., 477 S.W.2d 795 (1972). Further, we have held that failure to move for a mistrial following an objection and an admonition from the court indicates that satisfactory relief was granted. "It is well within the realm of valid assumption that counsel was satisfied with the court's admonition to the jury." Hunter v. Commonwealth, Ky., 479 S.W.2d 4, 6 (1972).Id.
West also relied upon Salisbury v. Commonwealth, 556 S.W.2d 922 (Ky. App. 1977), which concluded that the Commonwealth's comment on the defendant's post-arrest silence did not necessarily result in reviewable palpable error. West, 780 S.W.2d at 602. Salisbury states:
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.556 S.W.2d at 927. Because the Court of Appeals could not determine the basis of defense counsel's lack of objection - "whether the defendant's trial counsel failed to object as a matter of trial tactics, whether he deliberately withheld making an objection in the hopes that reversible error would slip into the record, or whether he was unaware that there was a possible objection" - the Court of Appeals concluded that the appellant had "not demonstrated that there was palpable error." Id. at 928.
West, 780 S.W.2d at 603, further considered Cosby v. Commonwealth, 776 S.W.2d 367 (Ky. 1989), a case in which the Court considered treatment of unpreserved errors in capital cases. In Cosby, the Court stated:
"[Prejudicial error" must be reviewed regardless of contemporaneous objection, and we hasten to reaffirm that this means errors where there is no reasonable justification or explanation for defense counsel's failure to object, tactical or otherwise, . . . .776 S.W.2d at 369.
Similar to West, without defense counsel's motion for a mistrial after receiving the agreed to admonition, the assumption that defense counsel was satisfied with the court's admonition weighs against a conclusion that Scott did not waive palpable error review. West's analysis is easily adapted to the facts of this case:
From the record before the Court it is clear that appellant recognized the remarks of the [detective] to be prejudicial. Objections were timely made and admonitions were requested and given by the trial court. . . . [I]t is reasonable to conclude that appellant, based on his failure to request a mistrial, believed the admonitions were sufficient, or despite the improper [testimony by the detective], desired to have the jury as impaneled render a verdict in his case. Certainly the record does not suggest that appellant was unaware of the prejudicial effect of the [detective's] remarks and strongly suggests that defense counsel's failure to move for a mistrial was a tactical decision.780 S.W.2d at 603. Nevertheless, it is clear that palpable error relief is not warranted for Scott's claim that the trial palpably erred by not sua sponte granting a mistrial.
Scott argues that the trial court's admonishment was insufficient and, essentially, the trial court should have recognized it as so. "We have long held that an admonition is usually sufficient to cure an erroneous admission of evidence, and there is a presumption that the jury will heed such an admonition. " Matthews v. Commonwealth, 163 S.W.3d 11, 17 (Ky. 2005) (citing Price v. Commonwealth, 59 S.W.3d 878, 881 (Ky. 2001); Alexander v. Commonwealth, 862 S.W.2d 856, 859 (Ky. 1993); and Knuckles v. Commonwealth, 261 S.W.2d 667, 671 (Ky. 1953); internal footnotes for these citations omitted).
There are only two circumstances in which the presumptive efficacy of an admonition falters: (1) when there is an overwhelming probability that the jury will be unable to follow the court's admonition and there is a strong likelihood that the effect of the inadmissible evidence would be devastating to the defendant; or (2) when the question was asked without a factual basis and was "inflammatory" or "highly prejudicial."Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003) (internal citations omitted).
Scott relies upon the first of these listed circumstances to argue that the trial court palpably erred. In support of his argument that there was an overwhelming probability that the jury would be unable to follow the court's admonition, Scott asserts that the first evidence the jurors heard linking Scott to the incident was an inadmissible statement and that the surveillance video was blurry and grainy, and without the detective's statement, it would be up to the jury to determine whether the individual in the video was in fact Scott. With regard to the strong likelihood that the effect of the inadmissible evidence would be devastating to him, Scott argues that it is more likely that the jurors found the detective more credible and his testimony more persuasive than the victim and the eyewitness who was driving the vehicle from which Scott exited to shoot the victim. Scott contends that as such, citing Bartley v. Commonwealth, 400 S.W.3d 714, 736 (Ky. 2013), there was an overwhelming probability that the jurors could not "perform that common mental feat [of disregarding what they heard] and meaningfully ask themselves whether 'apart from the forbidden testimony, do I believe the defendant guilty or not guilty.'"
Scott's brief describes Jordan as not identifying Scott as the shooter. While it is clear that the victim did not desire to directly identify Scott, the victim addressed Scott, stating that he forgave him. The Commonwealth also presented still photos to Jordan and he agreed that the photos depicted Scott shooting him.
As discussed in Bartley, "[p]eople disregard what they know or what they think they know all the time." Id. at 736. As to there being an overwhelming probability that the jury will be unable to follow the court's admonition, we have recognized that it may happen when there is something so uncommon or shocking as to interfere with a juror's ordinary mental abilities. See id. Here, Scott relies upon the fact that the jury heard the detective's improper testimony first and the video being blurry and grainy as reasons the jury would not be able to follow the admonition. It is not evident that these circumstances would interfere with a juror's ordinary mental abilities to disregard the detective's testimony. Accordingly, we conclude that the trial court did not commit palpable error. There was no palpable - "easily perceptible, plain, obvious and readily noticeable" - error as to the efficacy of the admonition to serve as a basis for RCr 10.26 relief in this case. Brewer, 206 S.W.3d at 349.
IV. Even if the trial court erred by allowing the Commonwealth to make statements about the victim's scars, the error did not result in manifest injustice.
Scott's last claim of error is that the trial court palpably erred by permitting the Commonwealth to testify through the victim in an attempt to meet its burden to prove that Scott caused serious physical injury to the victim. The Commonwealth disagrees and asserts that it did not insert itself as a witness during the victim's testimony. Upon review, we conclude that even if the prosecutor's actions in this case fell within the realm of statements of fact outside of the record or evidence, the circumstances of this case do not support a conclusion that manifest injustice resulted.
After the victim testified during direct examination about how many times and the locations of where he was shot, the Commonwealth asked the victim to show his gunshot wounds and scars to the jury. Defense counsel objected. The trial court overruled the objection. The victim then stood in front of the jury and showed each of his scars as a result of being shot by Scott. During this, the Commonwealth stated, "As you can see, the size of the wound on his spine, and how close it is to his spine," and "then on his arm, as you can see, the size, on his arm."
More than a century ago this Court stated:
It is the duty of a commonwealth's attorney to represent the interest of the commonwealth fully and fairly, with his utmost ability; but it is not his duty to make a statement of fact, the credence of which is always more or less strengthened by his official position, outside of the record or evidence, which may tend in the least degree to prejudice the rights of the accused.See Commonwealth v. Cook, 7 S.W. 155, 156 (Ky. 1888). Scott now argues that the Commonwealth commented on the victim's wounds, and the seriousness and location of them, in attempting to prove serious physical injury. Scott asserts that the statements by the Commonwealth were statement of facts inserted in the victim's testimony, a plain and obvious error, and that the trial court erred by allowing the Commonwealth to make them and violated Scott's right to a fair trial, a manifest injustice.
Scott primarily relies upon Holt v. Commonwealth, 219 S.W.3d 731 (Ky. 2007), to support his argument. In Holt, the Commonwealth called the defendant's jail mate to testify. Id. at 733. When the witness did not give testimony consistent with his prior statement to the Commonwealth and denied that the defendant told him that he committed the charged crimes, the prosecutor's questions included: "Do you remember talking with me this morning?" and "Do you remember telling me that he told you that he did it?" Id. The Holt Court concluded that the effect of the prosecutor's questions, asserting what the witness had said to her, placed the prosecutor in the position of making a factual representation. Id. at 734. The Holt Court explained that it was error for the Commonwealth "to make a statement of fact, the credence of which is always more or less strengthened by [its] official position, outside of the record or evidence, which may tend in the least degree to prejudice the rights of the accused." Id. at 735 (quoting Cook, 7 S.W. 155). The Holt Court concluded that by the Commonwealth's assertions, statements attributed to the defendant were placed before the jury without any witness saying that the defendant confessed, an error which goes to the heart of fundamental fairness and due process of law. Id. at 734-39. Holt's conviction was reversed and his case was remanded for a new trial. Id. at 739.
The Commonwealth argues that the facts in the instant case are unlike the fact pattern in Holt. The Commonwealth contends that while the prosecutor's statements in Holt contradicted the witness's testimony, here, following the victim's description of the number of times and location of where he was shot, the prosecutor simply pointed to the injuries and scars that the victim sustained and acknowledged their size and location.
In order to prevail on his claim of error under RCr 10.26, Scott must show that the alleged error resulted in "manifest injustice," which we have described as requiring a showing that there "is probability of a different result or error so fundamental as to threaten a defendant's entitlement to due process of law." Martin, 207 S.W.3d at 3. Upon review, we conclude that any harm to Scott from the Commonwealth pointing to the scars and stating, "As you can see, the size of the wound on his spine, and how close it is to his spine," and "then on his arm, as you can see, the size, on his arm," did not rise to the level of manifest injustice. While Scott complains that it is clear that the Commonwealth's statements contributed to the jury's finding of guilt, Scott was convicted of attempting to commit murder, a crime which does not require a finding of serious physical injury. The Commonwealth presented more than sufficient evidence to convict Scott of attempted murder. We agree with the Commonwealth that Scott has not made a showing that he would not have been convicted of attempted murder if the Commonwealth had not made the statements at issue.
CONCLUSION
For the foregoing reasons, the Jefferson Circuit Court's judgment is affirmed.
All sitting. All concur.