Brian Ramsey v. Commonwealth of Kentucky ( 2017 )


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    2016-SC-OO4 13-MR
    BRlAN RAMSEY APPELLANT
    ON APPEAL FROM KENTON CIRCUIT COURT
    V. HONORABLE PATRICIA M. SUMME, JUDGE
    NO. 16-CR-00172
    COMMONWEALTH OF KENTUCKY APPELLEE
    MEMORANDUM OPINION OF THE COURT
    AFFIRMING
    Appellant, Brian Ramsey, appeals from a judgment of the Kenton Circuit
    Court convicting him of second-degree robbery; two counts of tampering with
    physical evidence; being a first-degree persistent felony offender; and
    sentencing him to a total of twenty years in prison. As grounds for relief,
    Appellant contends that he is entitled to a reversal of the trial court’s judgment
    because the prosecutor made improper statements during the Commonwealth’s
    closing arguments. For the reasons stated below, we affirm.
    In December 2015, Appellant entered a bank in downtown Covington and
    passed a note to the teller demanding money and indicating that_ he had a gun.
    The teller handed over approximately $2,000.00.
    Through a series of eye-witnesses, police easily traced Appellant’s
    getaway path from the bank, and he was captured a short time later at the
    Florence Mall, where he had spent much of the stolen money. A portion of the
    stolen cash was recovered from his person at the time of his arrest. About a
    week after his arrest, and while incarcerated awaiting trial, another $250.00 of
    the robbery proceeds was discovered concealed inside Appellant’s anal cavity.
    Appellant was charged with second-degree robbery, two counts of
    tampering with physical evidence, and of being a first-degree persistent felony
    offender. One charge of tampering with evidence involved the money removed
    from Appellant’s rectum.
    As his only ground for relief, Appellant contends that the prosecutor
    engaged in misconduct when he said the following during his guilt-phase
    closing argument:
    A week after the robbery, he’s still got evidence shoved up his own
    backside. Again, still a week later, after he’s been arrested, hiding
    the evidence from police. I can only imagine hoping to take that
    money off so he can spend it in prison somewhere I suppose.
    [Objection overruled.] Whatever he was going to do with it, by
    where he put it, he was hoping no one was going to find it there.
    Appellant contends that this argument is improper because it mentions prison,
    and he further contends, “if [the improper comment] did not lead to his
    conviction, it could have led to the harsh sentence that the jury recommended.”
    In that vein, Appellant points out that he received the maximum available
    sentence for the crimes.
    “The parties have wide-latitude during closing statements to argue their
    respective cases, to comment on the evidence and draw reasonable inferences
    2
    therefrom, and to draw attention to the weaknesses in the opposing party’s
    case.” Ordway v. Commonwealth, 
    391 S.W.3d 762
    , 796 (Ky. 2013). Further,
    “In order to justify reversal, the misconduct of the prosecutor must be so
    serious as to render the entire trial fundamentally unfair.” Stopher v.
    Commonwealth, 
    57 S.W.3d 787
    , 805 (Ky. 2001) (citation omitted). In addition,
    “we reverse for prosecutorial misconduct in a closing argument only if the
    misconduct is ‘flagrant,’ or if each of the following three conditions is satisfied:
    (1) proof of the 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.” Bames v. Commonwealth, 
    91 S.W.3d 564
    , 568
    (Ky._ 2002).
    We are persuaded that the prosecutor’s statement under review falls well
    within the permissible range of commentary on the evidence. We see nothing
    in the statement that rendered the trial fundamentally unfair, and since the
    evidence of Appellant’s guilt was overwhelming, we fail to see how the
    prosecutor’s comments adversely affected the verdict.
    We adhere to the long-settled standard of our predecessor court that “in
    making their arguments to the jury, [prosecutors] should confine themselves to
    the law and the evidence, and should not go outside of the record for the
    purpose of bringing to the attention of the jury matters which have no bearing
    whatever on the questions at issue, and which are conveyed to the jury for the
    sole purpose of inflaming their passions and exciting their prejudice.” Chicago,
    St. L. & N.O.R. Co. v. Rowell, 
    151 S.W. 950
    , 955 (Ky. 1912) (citations omitted).
    3
    As with any matter, prosecutors may not include references to prison in their
    closing arguments in order to inflame the passions and prejudices of the jury.
    However, we have no bright line rule similar to our rule against commenting on
    a defendant’s right to remain silent that prohibits the mere mention of “prison”
    in a prosecutor’s guilt-phase closing argument.
    In context, the prosecutor was plainly inferring from the evidence a
    plausible motive that might explain Why Appellant would'try to conceal and
    retain some of the stolen cash after his arrest. We see nothing unfair or
    improper about the comment. Accordingly, we are persuaded that no error
    occurred.
    In any event, even if the comment were deemed to have crossed the
    bounds of propriety, it was harmless. Eye-witnesses allowed police to quickly
    identify and find Appellant and arrest him with some of the stolen money in
    hand, and more of the stolen money concealed on his person under
    circumstances that he could not plausibly refute. Furthermore, he admitted
    his guilt in a telephone call from the jail. In light of this overwhelming evidence
    of guilt, the prosecutor’s fleeting reference to “prison” in Appellant’s future
    could not possibly have swayed the verdict in this case. Evidentiary and other
    non-constitutional errors will be deemed harmless if we can say with fair
    assurance that the judgment Was not substantially swayed by the error.
    » Winstead v. Commonwealth, 
    283 S.W.3d 678
    , 689 (Ky. 2009) (citation omitted).
    For the foregoing reasons, the judgment of the Kenton Circuit Court is
    affirmed.
    All sitting. All concur.
    COUNSEL FOR APPELLANT:
    Linda Roberts Horsman
    Assistant Public Advocate
    COUNSEL FOR APPELLEE:
    Andy Beshear
    Attorney General of Kentucky
    Kenneth Wayne Riggs
    Assistant Attorney General
    

Document Info

Docket Number: 2016 SC 000413

Filed Date: 9/18/2017

Precedential Status: Precedential

Modified Date: 9/21/2017