Jason Dickerson v. Commonwealth of Kentucky , 2016 Ky. LEXIS 109 ( 2016 )

RENDERED: MARCH 17, 2016
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JASON DICKERSON APPELLANT
ON APPEAL FROM FLOYD CIRCUIT COURT
V. HONORABLE JOHNNY RAY HARRIS, JUDGE
NO. 14-CR-00070
COMMONWEALTH OF KENTUCKY APPELLEE .
OPINION OF THE COURT BY JUSTICE NOBLE
AFFIRMING
The Appellant, Jason Dickerson, was convicted of murder and four
counts of first-degree criminal abuse, and was sentenced to life in prison. On
appeal, he complains about the admission of evidence of his abuse of his
spouse, the admission of hearsay statements made to an examining
pediatrician and to an investigating detective, and several instances of alleged
prosecutorial misconduct during cross-examination of his expert witness and
in closing arguments. We affirm.
I. Background
On September 29, 2011, two-year-old Watson Adkins died as a result of
severe physical trauma to his abdomen, among other parts of his body. The
parties dispute the nature of the injury or injuries that ultimately caused the
boy's death, but it is largely indisputable that he suffered severe physical abuse
in the weeks or months leading up to his death.
The events leading to Watson's tragic death began earlier that year when
he and his four siblings—Braxton (the oldest, then age 6), 1 Cameron, Alyssa,
and Mary (the youngest, then an infant)—were temporarily removed from the
custody of their mother, Rhoda Lewis, by the Cabinet for Health and Family
Services due to poor living conditions in the home and Lewis's issues with
substance abuse. Lewis cooperated and helped the Cabinet arrange for the
children to be placed in the custody of her sister and brother-in-law, Gladys
and Jason Dickerson, 2 in February 2011.
When the children first moved in with the couple, the Appellant was
employed on a full time basis, and Gladys was their primary, day-to-day
caregiver. But when Dickerson lost his job in April, Gladys obtained full-time
employment with a nursing home, where she worked nightly shifts from
6:00 p.m. to 6:00 a.m. The children began attending day care, although
Dickerson, who remained at home during the day, would keep some or all of
them home on occasion.
On the morning that Watson died, Dickerson left their house in
Prestonsburg and went with his parents to work on renovations to a trailer in
Johnson County that the couple was planning to move into. Throughout the
I Braxton's father (the other four children have a different father) eventually
took custody and removed him from the Dickersons' care in June 2011.
2 For ease of reference, this opinion will typically refer to Gladys Dickerson by
her first name and Jason Dickerson by his last name or as the Appellant.
2
course of the day, the three laid new tile in the kitchen and carpet in a living
room, mounted a mirror in a bathroom, and repaired a sink and bathtub.
Shortly after 5:00 p.m., Gladys called 911) about Watson. During the
lengthy call, she told the dispatcher that a big "white-headed boy" had attacked
and hurt him the previous day while they were playing outside near the
Johnson County trailer. Gladys can also be heard on the 911 recording
purporting to attempt CPR on the child, stating she had heard "some whistling"
and felt two heartbeats while doing so. It would eventually become clear that
the child had already died before this call was made.
The statement Gladys initially gave to police essentially mirrored the two
her husband would later give police. But her statement differed significantly
from the testimony she later gave at his trial, which is summarized below.
Notably, she initially rehashed the story about the "white-headed boy" to police,
which she later admitted was made up (according to her, at her husband's
insistence). She also stated that she had seen no significant bruises on the
child prior to her administration of CPR while on the phone with the 911
dispatcher, with any bruising purportedly having been caused by her CPR
attempts.
Jason Dickerson's first interview with police took place the same day. He,
too, identified a "little white-headed boy" at the trailer park in Johnson County
as the source of most of Watson's injuries, which he claimed included only
small bruises on his knees and back. The child also had a cut on the back of
his head that, Dickerson told police, he received by accidentally hitting his own
3
head on a towel rack. 3 He stated that the child had not complained of any pain
before going to bed the previous night. He explained that he disciplined the
children only with time-outs, no television, and smacks on the hand, and he
told police that neither he nor Gladys ever hit the children. When advised that
Watson's body had been severely bruised all over, he replied, "No child should
have to go through that." He also told police that Lewis had been making two or
three anonymous calls per day to social services about them.
A couple days later, police arrested Dickerson and interviewed him a
second time. Continuing to deny any wrongdoing, he told police that Lewis had
"mind control" over her children and had made the anonymous calls to social
services because she wanted to make their life a "living hell." He claimed she
did not want her children to remain in their care because she did not want
them to be happy. Contrary to his first statement, he said Watson actually had
complained about stomach pain the night before his death and that Gladys had
given the child a stool softener in response; he also stated that Watson fell
asleep after taking the stool softener. He stated his wife had told him that when
she found the boy's body, she had administered CPR, performed the Heimlich
maneuver, smacked his face, and felt his heart beat. He claimed she had thus
been the cause of Watson's bruises and that they had "talked about that over
and over and over." He reiterated his and Gladys's disciplinary techniques and
3 Linda Sammons, the children's day care provider, testified that when she
asked about the cut on Watson's head, Dickerson told her that he had hurt himself by
hitting his head on the coffee table after he jumped and fell off the couch.
4
denied ever hitting them with a belt, even if that's what the children might have
claimed to child-advocacy personnel.
The interviewing detective told Dickerson that he did not believe his story
and that "the kids said you stomped that little kid, and they are covered in
bruises." Dickerson responded, "I never stomped or hit them. I will admit that I
have whipped them. I have never done anything to hurt one of them." He
added, "I have whipped them, and Gladys has whipped them."
Police also followed-up on the story about the white-headed boy by
interviewing neighbors who lived in the Johnson County trailer park and who
had witnessed (and supervised) Watson and his siblings playing on the
playground with other children. All those interviewed apparently refuted the
story, or at least none could confirm that there was any truth to it. Four of the
Johnson County neighbors interviewed by police testified at trial to this effect.
Both the Appellant and his wife were charged with Watson's murder and
four counts of first-degree criminal abuse of Watson and the other children.
(Unlike her four older siblings, the infant Mary was spared from any abuse.)
They were tried separately, with Dickerson's trial being held first. Gladys
testified against him at his trial, where she recanted her statements to police as
being lies. She testified about Dickerson's physical abuse of the children and of
Watson in particular (consistent with both Braxton's testimony and the medical
evidence described below), and she explained that she had given false
statements, and otherwise failed to report the child abuse, because she was
scared of her husband, who physically abused her as well.
5
The evidence of Watson's and the other children's injuries—including
autopsy reports, photographs, and medical examinations—was extensive.
Dr. Cristin Rolf performed Watson's autopsy and testified at Dickerson's trial.
According to Dr. Rolf, her autopsy of Watson revealed widespread, devastating
internal and external injuries that were most notable and unusual in their
location and severity. Dr. Melissa Currie, who is board-certified in child-abuse
pediatrics, also provided expert testimony about Watson's injuries. Her findings
were consistent with Dr. Rolf's testimony; and she testified without reservation
that Watson's injuries and death were definitely caused by extreme, chronic
physical abuse. Physical examinations of Cameron and Alyssa following
Watson's death also showed evidence of extensive, widespread injuries
consistent with physical abuse.
Perhaps the most compelling testimony came from Watson's oldest
sibling, Braxton, who was ten years old at the time of trial. He testified about
the abuse he and his siblings (and Gladys) endured before his father removed
him from the Dickersons' care.
Braxton testified that the abuse began with Dickerson forcing the
children to stand for extended periods of time, sometimes exceeding an hour,
and that he would "throw the children in a corner" if they sat down or moved.
He also testified that Dickerson would force the children to march around him
with their hands in the air while he sat on the couch and that, either to mark
the completion of laps or if he felt they were slowing down, he would strike
them with the end of a "pool noodle" on which he had attached a hard object.
6
Braxton also testified that Dickerson would force the children to take
long showers or baths in cold water that "felt like a swimming pool of ice."
According to Braxton, he would closely monitor the children to make sure they
"weren't turning the knob to warm or hot water," and he would "put his arm
against [their] throats" and would hold the boys' heads underwater until they
"ran out of breath" and Braxton "thought [he] was going to drown."
And he testified that Dickerson would force the boys to swallow dish-
detergent and would not allow them to rinse. And at meals, according to
Braxton, he would use his hands to shove food into their mouths and grab
their throats and, immediately afterward, would punch them in their stomachs
and cause them to vomit. Braxton testified that Dickerson would often strike
them with his hands and feet and punch them in the stomach. And he
physically demonstrated this for the jury in the courtroom and explained, "He
would put his fist low, and then when we were on the ground, he would kick us
while he grabbed something to hold onto. He would kick us until we were on
our backs, and then he would stomp us."
Lewis, the children's mother, also testified at Dickerson's trial. According
to her, she first suspected her children were being abused in March upon
finding bruises on Watson's backside. She testified that thereafter she began
noticing bruises on all her children (except the infant), with Watson reportedly
exhibiting the worst of it. Although she took photographs of her children's
injuries and reported her suspicions to social workers and the family court
presiding over her case, her persistent complaining was to no avail. Instead, it
7
apparently eventually resulted in the family court finding that she was a
destructive influence on her children and suspending her visitation rights.
One of the Dickersons' neighbors, Janet Owens, also testified to having
been concerned about the children's treatment, specifically noting that there
often appeared to be no adult supervision of them during the day. She, too,
reported her concerns to social services on numerous occasions, and her
complaints were no more successful than Lewis's. Owens also testified about
seeing Dickerson shoving the children and roughly grabbing them by their
shoulders on numerous occasions. And days before his death, she saw
Dickerson outside with Watson spouting profanity while the boy cried and was
bending over and "seemed hurt, like his stomach was hurting."
In his defense, Dickerson claimed he was innocent of Watson's death and
sought to cast blame on his wife instead. To do so, he presented the testimony
of forensic pathologist Dr. Charles Wetli, a retired former coroner from Florida
who, since 2006, had worked solely as a testifying expert witness. According to
Dr. Wetli, contrary to the opinions of the other medical experts in the case,
Watson's death was caused by an acute trauma to the abdomen (rather than
chronic trauma sustained over an extended period of time) inflicted between
two and six hours before death. Dickerson (unsuccessfully, as it turned out)
argued that this opinion, coupled with the irrefutable evidence that he was
away from the children in Johnson County during the period of time in which
Dr. Wetli said the fatal injury must have occurred, exonerated him of the
child's death and proved Gladys was instead responsible. The Commonwealth
8
cross-examined Dr. Wetli extensively. It is unclear what, if any, defense
Dickerson raised against the criminal-abuse charges.
Ultimately, the jury found Dickerson guilty of murder and all four counts
of first-degree criminal abuse, and recommended consecutive prison sentences
of life for the murder conviction and ten years for each abuse conviction. Partly
adopting the jury's recommendation, the trial court sentenced Dickerson to life
imprisonment, with the forty-year sentence for the abuse convictions to run
concurrently.
Dickerson now appeals as a matter of right. See Ky. Const. § 110(2)(b).
Additional facts will be developed as needed in the discussion below.
II. Analysis
A. Admission of other-bad-acts evidence was not error.
Dickerson first complains about the admission of evidence of his prior
bad acts—namely, his history of domestic violence against his wife—arguing
that it should have been excluded by KRE 404(b)'s prohibition against evidence
of prior acts to prove action in conformity with those acts. The complained-
about evidence involves the testimony of two witnesses: Gladys Dickerson and
her sister, Crystal Howard. While his arguments with respect to Gladys's
testimony are not entirely clear, Dickerson appears to generally claim that this
evidence was not relevant for a proper "other purpose" to be admissible under
KRE 404(b)(1) and that, in any event, the trial court failed to inquire into and
weigh the probative value and prejudicial effect of the evidence as required by
Bell v. Commonwealth, 875 S.W.2d 882, 889-91 (Ky. 1994). As to Howard's
testimony—which was that their mother believed that Dickerson was abusing
9
Gladys—he argues that the trial court's admonition failed to cure the error and
that he was entitled to a mistrial. We address each claim in turn.
1. The trial court did not abuse its discretion in allowing Gladys
Dickerson to testify about being abused by her husband.
On appeal, we review KRE 404(b) admissibility decisions for an abuse of
discretion. Anderson v. Commonwealth, 231 S.W.3d 117,' 119 (Ky. 2007). A trial
court abuses its discretion when its decision to admit or exclude evidence was
"arbitrary, unreasonable, unfair, or unsupported by sound legal principles."
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
Dickerson claims the trial court erred in allowing Gladys to testify about
his physical abuse of her. Unfortunately, he failed to cite where the actual
testimony forming the basis of this claim of error appeared in the record, as
required by our rules. See CR 76.12(4)(c)(v) (requiring argument sections
include "ample supportive references to the record"); RCr 12.02 (applying
CR 76.12 to criminal appeals). Accordingly, "[w]e would be justified in
disregarding this claim of error because counsel must sift through a record to
show the reviewing court the basis for a claim for relief." Mayo v.
Commonwealth, 322 S.W.3d 41, 54 (Ky. 2010). "It is well-settled that an
appellate court will not sift through a voluminous record to try to ascertain
facts when a party has failed to comply with its obligation under [our rules of
procedure] ... to provide specific references to the record." Parker v.
Commonwealth, 291 S.W.3d 647, 676 (Ky. 2009).
That said, the Commonwealth neither pointed out nor otherwise
protested Dickerson's noncompliance with the briefing requirements and,
10
instead, responded to his claim on its face. We will do the same, but again
caution appellate counsel to comply with all briefing requirements under
CR 76.12 to guarantee a full review on appeal.
Moving to the substance of his claim, Dickerson argues that because he
had not been charged with abusing Gladys, this evidence only served to
demonstrate that he was a "bad and violent person to other people" to show
action in conformity with that bad character to prove he was violent against the
children, in violation of KRE 404(b).
Although KRE 404(b) prohibits admitting proof of other bad acts as
propensity character evidence, KRE 404(b)(1) allows such evidence to be
admitted if offered for some "other," non-character purpose—such as to show
motive, opportunity, knowledge, absence of mistake, etc. For such evidence to
be admissible, however, it must be relevant for at least one of these other
purposes, and its probative value on that issue must exceed the prejudicial
effect of its character-proving aspects. Bell, 875 S.W.2d at 889.
Here, Gladys's spousal-abuse testimony was offered for the relevant
"other purpose" of showing that she was afraid of Dickerson. It was because of
that fear, she claimed, that she had never reported his abuse of the children,
had lied to social workers and others investigating the children's mother's
reports of suspected abuse, and had given false exculpatory statements to
emergency responders and law enforcement immediately following Watson's
death.
Dickerson, however, argues that this offer of other-bad-acts evidence as
such was nothing but improper "bolstering" of Gladys's trial testimony, which
11
under KRE 608, could only be introduced on rebuttal following an attack on
the witness's truthfulness. This argument misses the mark, however, because
Gladys's truthfulness was at issue in this case from the very beginning. That is,
the truthfulness of her statements to police (and the related failures to report
abuse) was put in issue as early as voir dire, when counsel introduced the
defense theory of the case—namely, a sort of he-said-she-said situation where
the "true culprit," Gladys, was merely pointing the finger at Dickerson to avoid
punishment for her own criminal acts. The complained-about testimony, then,
was rehabilitative proof that tended to rebut the direct and implied charges of
fabrication leveled against Gladys from the outset as part of the defense's guilt-
shifting trial strategy.
So, because the testimony was relevant for that purpose, it was
admissible if its probative value in explaining why she lied to police and failed
to report Dickerson's abuse of the children (because she was scared of him)
outweighed the unfair prejudice arising from its tendency to prove Dickerson's
violent-character. We agree with the trial court that it did.
The trial court acted well within its discretion in allowing Gladys's
spousal-abuse testimony to be admitted, especially given the other evidence
introduced in this case. For example, by the time Gladys testified, the jury had
already heard testimony from Braxton about instances of Dickerson abusing
her (along with the other children) during the period that he lived with the
couple. And the jury had also heard testimony about past observations of
Gladys's peculiar injuries and behaviors—e.g., bruises on her arms and neck
and her habit of wearing turtlenecks and long sleeves, even in the heat of
12
summer—that, circumstantially at least, tended to show Dickerson physically
abused his wife. Dickerson has not argued that this other testimony was
erroneously admitted. And it influenced the probative-value-versus-prejudicial-
effect analysis insofar as it was both corroborative (thereby increasing
probative value) and cumulative (thereby decreasing prejudice) of the
complained-about testimony.
Dickerson also argues that reversal is required because of the trial
court's alleged failure to inquire whether Gladys's spousal-abuse testimony was
sufficiently probative to allow for admission and whether its prejudicial effect
nevertheless outweighed that probativeness to require exclusion. However, in a
motion to exclude this testimony made immediately before Gladys took the
stand at trial, defense counsel argued these exact points to the trial court in
support of his request for exclusion. The video record of the in-chambers
discussion makes clear that the trial court carefully considered his arguments
and the Commonwealth's response before overruling the motion. Thus, the
argument, as a separate ground for reversal, that the trial judge "never gave
specific consideration" to these issues is refuted by the record.
In sum, Gladys's testimony about Dickerson's prior abuse was relevant
to explain that her failures to report his abuse of the children and her initial
statements to authorities following Watson's death, which sought to minimize
or hide her husband's culpability, were driven by her fear of being abused
herself. And the trial court did not abuse its discretion in admitting the
testimony, concluding that any prejudicial effect did not outweigh its probative
value in explaining Gladys's behavior.
13
2. Dickerson was not entitled to a mistrial for his sister-in-law's
testimony about her mother's suspicion of domestic violence.
Finding no error in the admission of Gladys's spousal-abuse testimony,
the related claim of error involving the testimony of Crystal Howard, Gladys's
sister, requires little discussion. Specifically, Dickerson claims that the trial
court erred in refusing to grant a mistrial when, in testifying about how the
relationship between Gladys and their mother had been "strained," she
explained that their mother had a low opinion of Dickerson "because she
suspected abuse towards Gladys and the children." Defense counsel
immediately objected to this testimony on hearsay and character grounds, and
requested a mistrial. While agreeing that the statement was not competent
evidence, the trial court overruled the motion for a mistrial and, instead,
admonished the jury to disregard the statement in its entirety.
Mistrials are an extreme remedy that should be granted only sparingly
and upon a showing of manifest necessity. Graves v. Commonwealth, 285
S.W.3d 734, 737 (Ky.2009). Thus, trial courts are afforded broad discretion in
deciding whether to grant a mistrial, and we review such decisions for abuse of
that discretion. Id. Furthermore, a jury is usually presumed to follow
instructions to disregard evidence erroneously presented to it. Alexander v.
Commonwealth, 862 S.W.2d 856, 859 (Ky. 1993), overruled on other grounds by
Stringer v. Commonwealth, 956 S.W.2d 883, 891 (Ky. 1993). Such admonitions
are thus deemed to cure any error unless (1) "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
14
devastating to the defendant," or (2) "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 quotation marks and emphases
omitted). The second circumstance is inapplicable here.
As to the first exception to the presumption of admonition effectiveness,
we are convinced neither that it was probable that the jury would disregard the
admonition nor that the evidence was devastating to Dickerson, particularly in
light of the other evidence that he abused his wife. Therefore, to the extent
there was any error in the introduction of Howard's testimony, the admonition
cured it. And because we can conceive of no manifest necessity for mistrial,
there was certainly no abuse of discretion in declining to order one.
B. Introduction of hearsay was not reversible error.
Dickerson next alleges error in the admission of hearsay testimony.
Specifically, he raises two claims of error: first, he claims it was error to allow
"medical hearsay" testimony from the pediatrician who examined Cameron and
Alyssa after Watson's death; and second, he complains about "investigative
hearsay" elicited from the detective who interrogated witnesses at the trailer
park in Johnson County about the "white-headed boy" story.
1. Pediatrician's testimony about statements to her made during
examination does not require reversal.
Dickerson claims that the trial court erred in allowing Dr. Kate Shutts, a
pediatrician who had previously treated the Adkins children, to testify about
statements made by the children during her medical examinations following
Watson's death allegedly identifying the cause of their injuries (presumably, at
15
first blush, this means Dickerson's abuse). He further contends that it was
error for the trial court, in overruling his hearsay objection, to summarily
conclude that statements identifying abusers fall under KRE 803(4)'s exception
for statements made for the purpose of medical treatment or diagnosis.
Although the Commonwealth provided no response to this claim in its brief, we
will not treat it as conceded.
At the outset, we note, yet again, that defense counsel did not cite to the
record, complicating our review of the alleged error. Having nevertheless
reviewed the video recording of the bench conference on defense counsel's
contemporaneous objection to Dr. Shutts's testimony, as well as the portion of
her testimony we believe the objection covered, it is apparent that the
arguments in Dickerson's brief are overbroad regarding Dr. Shutts's testimony
and the trial court's ruling.
Dickerson's argument conspicuously fails to make clear that the
testimony by Dr. Shutts, which he alleges repeated "the various children's
statements as to the identity of those who caused their injuries," in fact
involved only two statements, both of which were attributed to Cameron. First,
Dr. Shutts testified that Cameron told her that Dickerson had hit him with a
belt (but apparently was unable to say where it hit him or to attribute any
particular injury to it). Second, the doctor testified that the only other thing
Cameron said was that the "big white boy" at their new trailer had "hurt his
nose." (And according to Dr. Shutts, Cameron otherwise answered, "I don't
know," when she asked him about his various injuries.) In our review of
16
Dr. Schutt's testimony, there is no mention of any statement by Alyssa
identifying Dickerson or anybody else as the cause of any of her injuries.
And as to the trial court's ruling, Dickerson's contention that the judge
overruled his objection by "stating without further analysis that the identity of
the perpetrator was information necessary for medical treatment" is wholly
refuted by the video record. Instead, it is clear the judge considered the parties'
arguments (even asking defense counsel to clarify his objection) before advising
the Commonwealth that he was getting close to exceeding the scope of the
KRE 803(4) exception—that he was "starting to teeter."
And it is also notable, although Dickerson failed to mention it as well,
that the Commonwealth asked no further questions of Dr. Shutts following the
bench conference. Simply put, there is no error, and even if there were, it
would certainly be harmless.
2. Admission of detective's hearsay testimony in violation of
Dickerson's confrontation rights was harmless beyond a
reasonable doubt.
Next, Dickerson claims that it was error to allow the Commonwealth to
elicit so-called "investigative hearsay" testimony from Detective Ryan Hamilton.
Detective Hamilton investigated the statements both Dickersons gave to
authorities attributing Watson's fatal injury to physical attack by the "white-
headed boy" on the playground or swing-set at the Johnson County trailer
park, and Dickerson contends that it was error to allow the detective to testify
that nothing he was told by the fourteen witnesses he interviewed provided any
evidence that there was any truth to that story.
17
In its case-in-chief, the Commonwealth questioned Detective Hamilton
about the Dickersons' recorded statements involving the white-headed boy, in
which they had claimed the boy had attacked and injured Watson two days
before his death. After having the detective recount the story, the following
exchange took place:
Commonwealth: Now this swing-set, playground, white-headed
boy thing, story, did you investigate that?
Det. Hamilton: Yes.
Commonwealth: And how did you investigate that?
Det. Hamilton: I went to the trailer park and interviewed the
residents in the trailer park. I located the boy
they referred to as the "white-headed boy." I
spoke to him and to his parents. I also located
the swing-set and photographed it, and the
owners of the swing-set and interviewed them.
Commonwealth: And how many people in all, if you know, did
you interview investigating this swing-set, white-
headed-boy story?
Det. Hamilton: At the trailer park, approximately fourteen
different people.
Commonwealth: Okay. And after you concluded your
investigation into that, into that claim about
Watson or Cameron being injured by a white-
headed boy—
At that point, defense counsel interjected, objecting that the Commonwealth
was preparing to ask Detective Hamilton to testify as to hearsay statements by
his investigation interviewees in violation of his confrontation rights. The
Commonwealth's Attorney responded that the testimony he was going to elicit
would not be hearsay because he was not going to ask about any specific
statements of any of the witnesses. The trial court overruled the objection, and
18
the Commonwealth concluded the exchange with Detective Hamilton by asking,
"After investigating the claims about the playground incident, did you find any
evidence at all to suggest that anything like what the defendant described ever
occurred?" Detective Hamilton responded, "No."
On appeal, the Commonwealth maintains that the detective's response
did not constitute hearsay, and was therefore properly admitted, because the
testimony did not repeat any express statements from the interview subjects.
According to the Commonwealth, because the detective was merely responding
to a question posed by the prosecutor that called for a summary of all of, his
interviews, it was "impossible for the detective to be repeating statements made
by fourteen ... different persons." The Commonwealth claims that Detective
Harhilton's testimony thus involved a conclusion he drew from his investigation
of the story about the white-headed boy and not any statement made by an
out-of-court declarant that might otherwise be objectionable hearsay.
The flaw in this argument is that it is premised on a much-too-couched
understanding of hearsay. "Hearsay" is an out-of-court statement "offered in
evidence to prove the truth of the matter asserted." KRE 801(c). Here, the
fourteen interviewees made the out-of-court statements asserting the matter
offered into evidence—that the story about the white-headed boy was untrue.
And the in-court testimony relaying those out-of-court statements to the jury,
albeit by summarizing them, was certainly offered to prove the truth of the
matter they asserted. Merely summarizing hearsay statements does not change
19
their hearsay character. 4 Indeed, allowing a witness to recount the substance
of a statement and avoid the hearsay bar by omitting the magic words "he said"
or "she said" would essentially kill the hearsay rule. And even that approach
would violate other rules, such as KRS 602's requirement that a witness may
testify only to matters of which he or she has personal knowledge, unless the
statements were admissible under a hearsay exception.
It is a witness's testimony about the substance of an out-of-court
speaker's statement, and not merely a verbatim recitation of the statement,
that is problematic and barred by the hearsay rule. A police officer's
"conclusion" or "summary" of information gleaned from investigatory
interviews, such as Detective Hamilton's testimony here, is no less hearsay
than the interviewees' statements on which it is based. Cf. Hodge v.
Commonwealth, 287 S.W.2d 426, 428 (Ky. 1956) (holding opinions and
conclusions of state trooper in official auto-accident report were "pure
hearsay").
And this understanding of hearsay is implicit to this Court's holding in
the seminal case Sanborn v. Commonwealth, 754 S.W.2d 534 (Ky. 1988),
overruled on other grounds by Hudson v. Commonwealth, 202 S.W.3d 17 (Ky.
4 While we have not been provided with, nor found through our own research,
any prior cases in which this Court has expressly stated as much, we have at least
hinted at it in dicta. See Barshars v. Commonwealth, 25 S.W.3d 58, 64 (Ky. 2000)
(noting that "the Kentucky Rules of Evidence contain no requirement that ... testimony
relating to a declarant's oral statement must be a verbatim recitation of that
statement," and "by paraphrasing, witnesses may communicate relevant evidence
regarding the substance of a declarant's statement").
20
2006), which debunked once and for all (or at least attempted toy) the myth of
the so-called "investigative hearsay" exception. Id. at 541. In Sanborn, this
Court held, among other things, that a police officer's testimony about
conclusions that were drawn from interviewing dozens of people—in substance,
that "he did not obtain any information from the people whom he interviewed
verifying the appellant's alibi"—was inadmissible hearsay. Id. at 542. There, as
here, the officer was merely regurgitating information furnished to him by the
people he had interviewed, namely, that the defendant's version of events was
not true. The out-of-court statements by which that information was conveyed
to the officer were inadmissible hearsay, and repackaging them into the
officer's "conclusion" or "summary" did not make that information any less
objectionable.
It is no different here, where Detective Hamilton's testimony was
essentially that the fourteen or so people he interviewed during his
investigation stated that there was no truth to the Dickersons' story. That is
hearsay.
Having rejected the Commonwealth's contention that Detective
Hamilton's testimony about the results of his 'trailer-park interviews was not
hearsay, we turn now to the merits of whether its admission was error. On that
point, and citing Sanborn, Dickerson disputes the admissibility of this
testimony as non-hearsay (or "verbal-act") evidence of the actions taken by the
5 See Ruiz v. Commonwealth, 471 S.W.3d 675, 680-81 (Ky. 2015) (lamenting the
dogged persistence of the false "investigative hearsay" exception among the bench and
bar, despite Sanborn and its progeny's clear condemnations of it).
21
detective in response to the out-of-court statements, where the detective's
actions were not relevant to any issue in the case. His insistence on this point
is somewhat curious, however, since nobody in the trial court below or now on
appeal has ever suggested otherwise. In any event, we agree that the detective's
testimony here was not admissible for that (non-hearsay) purpose; the
detective's actions were in no way at issue.
The real problem with the complained-about testimony, which
Dickerson's argument hints at but fails to fully develop, is that it implicates his
Sixth Amendment confrontation rights. See U.S. Const. amend. VI ("In all
criminal prosecutions, the accused shall enjoy the right ... to be confronted
with the witnesses against him."). The Confrontation Clause forbids the
"admission of testimonial statements of a witness who did not appear at trial
unless he was unavailable to testify, and the defendant had had a prior
opportunity for cross-examination." Crawford v. Washington, 541 U.S. 36, 53-
54 (2004); see also Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309 (2009)
("A witness's testimony against a defendant is ... inadmissible unless the
witness appears at trial or, if the witness is unavailable, the defendant had a
prior opportunity for cross-examination." (citing Crawford, 541 U.S. at 54)). So
whether Detective Hamilton's testimony summarizing his interviews with the
trailer-park witnesses violated Dickerson's confrontation rights turns on
whether (1) the out-of-court statements were testimonial, (2) the out-of-court
speakers were unavailable to testify, and (3) Dickerson had an opportunity to
cross-examine them.
22
First, it is beyond dispute that the hearsay statements here were
testimonial; they were made to law enforcement in the course of an
investigation that was undertaken solely to discover facts and evidence that
might prove relevant in a subsequent criminal prosecution, and thus were
prototypical of testimonial hearsay. As the Supreme Court initially noted in
Crawford, testimonial hearsay "applies at a minimum ... to police
interrogations." 541 U.S. at 68. Despite the Supreme Court's subsequent cases
qualifying that broad assertion, see, e.g., Davis v. Washington, 547 U.S. 813,
822 (2006) (holding that statements to police are non-testimonial when their
primary purpose was to assist in responding to an ongoing emergency), it
nevertheless remains the arguably self-evident rule that statements to police
"are testimonial when the circumstances objectively indicate that there is no ...
ongoing emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal
prosecution," id.; see also Ohio v. Clark, 135 S. Ct. 2173, 2180 (2015) ("In the
end, the question is whether, in light of all the circumstances, viewed
objectively, the primary purpose of the conversation was to create an out-of-
court substitute for trial testimony." (internal quotation marks and brackets
omitted) (quoting Michigan v. Bryant, 562 U.S. 344, 358 (2011))).
Here, there is no dispute that the purpose of Detective Hamilton's
interrogations of the trailer-park residents was to investigate past events—the
white-headed boy's alleged role in Watson's death—for later criminal
prosecution. There is little doubt that their primary purpose, then, was to
create an out-of-court substitute for in-court testimony; and this forbidden
23
result was, in fact, obtained through the detective's summary at trial of the
out-of-court interviewees' statements. Thus, it is clear that the out-of-court
statements to the detective—presented, as they were, to the jury through
Detective Hamilton's summary testimony about their content including nothing
that substantiated Dickerson's white-headed-boy allegations—were testimonial
in the truest sense of the word.
Whether the Confrontation Clause barred this testimonial hearsay thus
turns on whether the out-of-court interviewees were unavailable and Dickerson
had an opportunity to cross-examine them. Neither of these points is seriously
contested, at least with respect to the lion's share of the interviewees. The
Commonwealth showed neither that non-testifying witnesses interviewed by
Detective Hamilton at the trailer park were unavailable nor that Dickerson had
a prior opportunity to cross-examine them.
That said, four of those witnesses were called by the Commonwealth to
testify at Dickerson's trial. With respect to those four witnesses, there is no
confrontation violation because they actually testified at trial (and, thus, were
available and subject to cross-examination). While the detective still should
have been barred from summarizing what these witnesses told him—at least
until they first appeared as witnesses and had been cross-examined, after
which he might have then been allowed to testify to their prior consistent
statements for rehabilitation purposes, see KRE 801A(2)—the constitutional
error with respect to them, at least, "was erased by subsequent legitimation of
the incompetent testimony." Garland v. CoMmonwealth, 127 S.W.3d 529, 540
(Ky. 2004), overruled on other grounds by Lanham v. Commonwealth, 171
24
S.W.3d 14 (Ky. 2005) (quoting Summitt v. Commonwealth, 550 S.W.2d 548, 550
(Ky. 1977)).
That is not to suggest, however, that the confrontation violation was
cured altogether. Because the detective's testimony, by virtue of its summary
nature, also encompassed the out-of-court testimonial hearsay of the other
nine or so witnesses he interviewed, it still violated Dickerson's right to
confront those out-of-court witnesses under Crawford.
But finding a violation of Dickerson's confrontation rights alone does not
necessarily require reversal of his convictions, which is required only if the
error was not harmless. See RCr 9.24. Because this was a constitutional error,
the harmlessness threshold is much higher than for non-constitutional errors;
the standard here is whether we are convinced "beyond a reasonable doubt
that the error complained of did not contribute to the verdict obtained."
Chapman v. California, 386 U.S. 18, 24 (1967); see also Taylor v.
Commonwealth, 175 S.W.3d 68, 72 (Ky. 2005) (applying constitutional-
harmless-error analysis to Crawford violation).
As this Court has explained, the analysis "involves considering the
improper evidence in the context of the entire trial and asking whether there is
a 'reasonable possibility that the evidence complained of might have
contribUted to the conviction."' Staples v. Commonwealth, 454 S.W.3d 803,
826-27 (Ky. 2014) (quoting Talbott v. Commonthealth, 968 S.W.2d 76, 84 (Ky.
1998)). "The question ... is whether the improper evidence was of a weight, was
of a striking enough nature, or played a prominent enough role in the
25
Commonwealth's case to raise a reasonable possibility that it contributed to
the conviction." Id. at 827.
With this standard in mind, examining the nature of the constitutionally
offensive evidence in the context of the entire trial, and in light of the
overwhelming evidence of Dickerson's guilt, we must conclude that this is just
such a case where the improper evidence was harmless beyond a reasonable
doubt. Simply put, we are convinced that no reasonable juror would have relied
on the unconstitutional evidence in convicting Dickerson. Thus, there was no
reasonable possibility that it contributed to his conviction:
Again, four of the trailer-park witnesses interviewed by Detective
Hamilton testified at trial. At trial, their testimony fleshed out and solidified the
speciousness of the story about the white-headed boy. In that respect, then,
Detective Hamilton's short summary of the other, non-testifying witnesses'
statements was not only cumulative to the in-court witnesses' testimony, but
also was much less compelling. The boiled-down hearsay information was
conveyed to the jury by Detective Hamilton with his one-word response, "No,"
to a largely unremarkable, albeit improper, question. It was hardly a salacious
or climactic moment of the trial.
But what further, and most definitively, demonstrates the harmlessness
of the error is defense counsel's own closing arguments. Toward the beginning
of his argument, defense counsel spent almost ten minutes arguing to the jury
about why it should disregard Gladys's trial testimony (that Dickerson, alone,
had inflicted the fatal abuse) and should, instead, believe his theory that it was
26
Gladys who had caused the child's death and who was now trying to pin it on
him.
To this end, defense counsel brought up how Gladys, in the midst of the
911 call and unprompted, had cut in with the story about a bigger boy
attacking and kicking Watson at the trailer-park playground. He then asked,
"Does that sound like the kind of person who respects the truth, offers the
truth? Or does that sound like a person who will say anything to get
themselves in a better situation?" This implicit acknowledgement that the story
was untrue became explicit a few minutes later, when he called it a "made-up
piece of business."
Given that his counsel made these arguments at trial, the manifest
futility of now arguing on appeal that the detective's testimony regarding the
made-up story prejudiced him is apparent.
For the sake of completeness, however, we conclude by again noting the
other voluminous evidence introduced against Dickerson, which was as
compelling in its quantity and consistency as it was horrific in its heart-
breaking and graphic detail. It would not be a stretch to say that there would
have been little chance of acquittal based on the evidence of Watson's and the
other children's injuries alone. But along with the photographic evidence and
the testimony from the medical examiner, the children's pediatrician, and the
child-abuse-pediatrics specialist, the Commonwealth also introduced direct
eye-witness testimony of Dickerson's physical abuse of the children, both from
one of his child-abuse victims (Braxton) and from his wife.
27
In addition to their detailed accounts of the almost unfathomably severe
physical and emotional trauma Dickerson inflicted on the four children, what
is perhaps most remarkable about these two witnesses is how well each
witness's testimony about the abuse corroborated the other's. The significance
of this is apparent, of course, especially given that Braxton and Gladys had not
had any contact since Braxton's father took custody of him three months
before Watson's death. (And neither witness heard the testimony of the other
because, as would be expected, the parties invoked "the rule" for sequestration
of witnesses during trial.) This marked corroboration, which was further
substantiated by the medical proof, not only significantly bolstered their
credibility, but rendered their testimony about Dickerson's abuse of the
children largely, if not wholly, unassailable.
In summation, the detective's testimony about his interviewees'
statements was testimonial hearsay, and since they did not testify at trial and
Dickerson was not afforded an opportunity for cross-examination of the
unavailable witnesses, the admission of that testimony violated his Sixth
Amendment confrontation rights under Crawford. However, because the harm,
if any, that flowed from the admission of the improper evidence was minimal at
best, and in light of the great strength and extent of the evidence of Dickerson's
guilt, it is abundantly clear that the constitutional error was harmless beyond
a reasonable doubt.
28
C. Prosecutorial misconduct does not justify reversal.
Finally, Dickerson claims that reversal is required for several instances of
alleged prosecutorial misconduct during the Commonwealth's cross-
examination of the defense's medical expert and during closing argument.
Prosecutorial misconduct is "a prosecutor's improper or illegal act
involving an attempt to persuade the jury to wrongly convict a defendant or
assess an unjustified punishment." Noakes v. Commonwealth, 354 S.W.3d 116,
121 (Ky. 2011) (alterations omitted) (quoting Black's Law Dictionary (9th ed.
2009)). It can take a variety of forms, including improper questioning and
improper closing argument. Duncan v. Commonwealth, 322 S.W.3d 81, 87 (Ky.
2010).
We will reverse for prosecutorial misconduct only if the misconduct was
"flagrant" or if we find all of the following to be true: (1) the proof of guilt is not
overwhelming, (2) a contemporaneous objection was made, and (3) the trial
court failed to cure the misconduct with a sufficient admonition. Mayo v.
Commonwealth, 322 S.W.3d 41, 55 (Ky. 2010). As to the second ground for
justifying reversal, the three-part test for,non-flagrant errors, none of the
alleged misconduct here will satisfy that standard because the evidence against
Dickerson was overwhelming (as we have already explained above). In other
words, no non-flagrant misconduct, even if it was objected to, will justify
reversal here because "proof of the defendant's guilt was ... such as to render
the [non-flagrant] misconduct harmless." Duncan, 322 S.W.3d at 87.
As a result, whether any of the alleged prosecutorial misconduct here
requires reversal turns solely on whether it was "flagrant" so as to have
29
"render[ed] the trial fundamentally unfair." Id. We use the following four-factor
test to determine whether a prosecutor's improper comments constitute
reversible flagrant misconduct: "(1) whether the remarks tended to mislead the
jury or to prejudice the accused; (2) whether they were isolated or extensive;
(3) whether they were deliberately or accidentally placed before the jury; and
(4) the strength of the evidence against the accused." Mayo, 322 S.W.3d at 56
(quoting Hannah v. Commonwealth, 306 S.W.3d 509, 518 (Ky. 2010)). In the
end, our review must center on the essential fairness of the trial as a whole,
with reversal being justified only if the prosecutor's misconduct was "so
improper, prejudicial, and egregious as to have undermined the overall fairness
of the proceedings." Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006)
(citing Soto v. Commonwealth, 139 S.W.3d 827, 873 (Ky. 2004)); see also
Slaughter v. Commonwealth, 744 S.W.2d 407, 411-12 (Ky. 1987) ("The required
analysis ... must focus on the overall fairness of the trial, and not the
culpability of the prosecutor." (citing Smith v. Phillips, 455 U.S. 209 (1982)).
With those principles in mind, we address the allegations of misconduct
in turn.
1. Cross-examination of defense expert witness was not flagrant
prosecutorial misconduct.
First, Dickerson alleges prosecutorial misconduct during the
Commonwealth's cross-examination of his medical expert, Dr. Charles Wetli.
Specifically, he complains about the following statement by the prosecutor: "All
the evidence in this case has been that Watson was severely assaulted by
Jason Dickerson the night before he died." Although he failed to acknowledge
30
as much in his brief, defense counsel immediately objected to this statement,
and following a very brief bench conference, the Commonwealth rephrased that
assertion of fact into a hypothetical before proceeding with questioning the
witness. 6 No additional relief was requested or provided. While we agree that
the prosecutor's initial statement was improper—because it was hyperbole that
invaded the jury's fact-finding role by asserting as fact the prosecutor's own
conclusions about the weight and credibility of the evidence—we disagree that
it requires reversal because application of the four-factor test laid out above
leads us to conclude that it did not rise to the level of flagrant misconduct.
As to the first factor, it is unlikely that the jury was misled by the
remark. When the remark was made (on the fifth day of a five-day trial), the
jury had already heard all of the Commonwealth's and almost all of the
defense's evidence and would have easily recognized the prosecutor's
hyperbolic assertion for what it was and to what degree it may or may not have
aligned with their view of that evidence. Plus, insofar as the prosecutor
rephrased the comment before continuing questioning, the jury would have
considered it less as an assertion of fact than as the hypothetical premise on
which the prosecutor based his continued questioning of the witness, thus
curing any misleading effect the assertion may have had when made. This
factor, therefore, weighs against finding flagrancy.
6 In relevant part, the Commonwealth's rephrased question asked, "Doctor, if
there's evidence that's been presented in this case to say that Watson was severely
assaulted the night before he died, perhaps as late as midnight or later—and that ...
he was not assaulted th[e] afternoon [of the day he died] ..., you're saying that the
autopsy results are not consistent with that?"
31
The second factor requires little discussion. The prosecutor's improper
comment was undoubtedly isolated as it was made once, objected to, and not
repeated. This factor, too, weighs in favor of non-flagrancy.
As to whether the comment was made deliberately or accidentally, the
fact that the prosecutor responded to the objection by voluntarily agreeing to
rephrase the statement as a hypothetical, we believe, tends to demonstrate that
his utterance of the objectionable assertion was more accidental than
deliberate. Again, he did not repeat the improper remark. Thus, while perhaps
less clear than the first two factors, we believe that this factor too weighs
against finding the improper comment flagrant.
Lastly, as to the fourth factor concerning the strength of the evidence, we
have already made clear how strong the evidence of Dickerson's guilt was. This
is yet another factor weighing in favor of finding non-flagrancy.
With all four factors thus weighing in the Commonwealth's favor, it is
clear that the improper comment did not rise to the level of flagrant misconduct
and does not warrant reversal accordingly.
Additionally, Dickerson alleges misconduct in "numerous statements of
personal opinion" by the prosecutor and "unfairly attack[ing] Dr. Wetli during
cross, rapid-firing multiple questions at the doctor, while refusing to allow him
to answer." He does not elaborate any further, however, on the substance or
character of any such alleged personal-opinion statements or purported
machine-gun style questioning, nor does he cite where this questioning
appears in the record. Worse still, he did not endeavor to point out any other
specific statements or lines of questioning to substantiate these broad,
32
unsupported claims. Again, we reiterate it is the appellant's obligation under
Civil Rule 76.12 to sift through the record and provide adequate citation
thereto to provide this Court with the basis for a claim of relief. Dickerson
failed to do so here. Therefore, we find this aspect of his claim of prosecutorial
misconduct wanting.
2. Improper closing argument statements did not rise to the level
of flagrant misconduct to require reversal.
Dickerson's remaining allegations of prosecutorial misconduct relate to
numerous statements made during the Commonwealth's closing argument. In
reviewing such claims, "we must always consider these closing arguments 'as a
whole' and keep in mind the wide latitude we allow parties during closing
arguments." Miller v. Commonwealth, 283 S.W.3d 690, 704 (Ky. 2009) (quoting
Young v. Commonwealth, 25 S.W.3d 66, 74-75 (Ky. 2000)).
First, he complains about the prosecutor's statement toward the
beginning of his argument: "I've been doing this for going on 16 years, and I've
seen a lot, but I've never seen anything like this." Defense counsel immediately
objected to this statement of personal opinion and experience, and following a
brief bench conference, the trial court directed the Commonwealth's Attorney
to "move it along." The prosecutor made no further reference to his personal
experience, and no additional relief was requested.
Applying the four-factor test above, we conclude that this did not
constitute flagrant misconduct. It did not tend to mislead the jury and was not
particularly prejudicial. The personal sentiment behind the statement was
uttered only this one, isolated time and was not revisited. And even if it were
33
deliberate, the strength of the damning evidence against Dickerson militates
against finding that it was flagrant misconduct.
Next, Dickerson complains about what he characterizes as the
prosecutor's closing-argument statements "repeatedly interjecting his personal
opinions that the Defendant [wa]s 'stupid,' a ``moron,' evil,' 'bogus,' and 'full of
crap."' Again, he failed to include any specific citations to the record to point
out the actual statements that formed the basis of his claim. However, because
our full consideration of the prosecutorial misconduct claims necessitated our
independent review of the entirety of the Commonwealth's closing argument,
we came across the statements his claim appears to allude,to. However, upon
listening to the full comments in context, it is clear that Dickerson's argument
is somewhat misleading.
Despite Dickerson's characterization of them as such, none of the
prosecutor's remarks specifically attached those complained-about terms to
Dickerson himself. Instead, the prosecutor argued that "what this man did [to
the children] was evil"; that Dickerson, in his responses to police upon first
being questioned, had not sounded like someone that was innocent but,
instead, had sounded like someone that already knew what had happened and
was trying to think of "some kind of crap" to get out of it; that during
questioning by police a second time following arrest, "any moron" would have
understood they were talking about murder and not just abuse; and that the
swing-set story was "stupid," "bogus," and a "bunch of crap" (which, as
34
discussed above, were sentiments already raised by defense counsel during his
closing argument to attack the credibility of Gladys Dickerson 7).
We need not reach the question whether these alleged "interject[ions] of
personal opinion" rise to the level of flagrant misconduct because we do not
believe they constituted misconduct at all. First, all of the comments must be
viewed through the lens of the wide latitude counsel is afforded in closing
arguments. They are, after all, just that—arguments. "A prosecutor may
comment on tactics, may comment on evidence, and may comment as to the
falsity of the defense position." Slaughter v. Commonwealth, 744 S.W.2d 407,
412 (Ky. 1987). As this Court has previously held, the prosecutor does not
exceed the proper bounds of closing argument by characterizing the defense
theory as "stupid." See Stopher v. Commonwealth, 57 S.W.3d 787, 805-06 (Ky.
2001); see also Slaughter, 744 S.W.2d at 412 (approving criticism of defense
counsel for presenting a "great octopus" defense and pulling a "scam," and
questioning counsel's intelligence). And we have long recognized that it is
permissible for prosecutors to comment on the veracity or credibility of
witnesses. Chumbler v. Commonwealth, 905 S.W.2d 488, 503 (Ky. 1995) (citing
Cavins v. Commonwealth, 272 S.W.2d 656 (Ky. 1954)). Finally, this Court has
consistently held it is proper for prosecutors to express personal opinions
about defendants' guilt that are based on the evidence in the case. See, e.g.,
7 And, for a little context, it is clear from the prosecutor's statements during
closing that the only reason he even mentioned the "bogus" story during closing was
because defense counsel himself had brought it up during his argument to attack
Gladys's credibility. The prosecutor then smartly pointed out to the jury, although it
was unlikely that it was lost on any of them, that the defendant himself had tried to
sell the same "stupid" story to police during both of his recorded statements.
35
Slaughter, 744 S.W.2d at 412 (holding reference to defendant as a "bit of evil"
permissible). It follows, then, that the comments at issue here were not
improper, let alone misconduct, flagrant or otherwise.
Finally, Dickerson alleges misconduct in certain closing-argument
statements disparaging the credibility of Dr. Wetli. Specifically, after pointing
out how the two-part conclusion in the expert's report regarding the timeframe
of Watson's fatal injuries was inherently self-contradictory—and labeling the
expert's opinion thus "illogical" and "worthless"—the prosecutor's closing-
argument criticism of Dr. Wetli continued as follows:
Commonwealth: If anybody thought I was being too rough, being
too hard on him [during cross-examination], I'm
sorry. But it offends me—and it ought to offend
you—when a man comes in here and takes facts
and twists them for a dollar, when we have a
dead child here. And if I acted outraged, it's
because I was outraged. He's a hired gun that
says whatever the person paying him the money
to say, that's what he says.
Defense Counsel: For the record, your honor, we object to this.
Trial Court: Noted.
The prosecutor then shifted to discussing the fee Dr. Wetli was paid to testify in
this case and how much he had been paid in total per year (about $500,000)
doing nothing but testifying as an expert witness since he retired from being a
coroner in 2006. The argument then turned to comparing Dr. Wetli to the other
medical experts who testified in the case, Dr. Rolf and Dr. Currie, noting their
qualifications and perceived lack, of bias, before asking the following:
Commonwealth: "Who you gonna believe? ... You gonna believe
[Dr. Rolf and Dr. Currie]? Or some hired whore
who comes in here and tells you all this crap
and has become a multimillionaire on the backs
36
of dead children like Watson Adkins, is that who
you're gonna believe?
Defense Counsel: Note our objection, your honor.
Trial Court: Sustained. Ladies and gentlemen of the jury,
you are to disregard [the Commonwealth's
Attorney's] description of Dr. Wetli regarding the
term "whore."
No further relief was requested. And the prosecutor moved on to discuss other
evidence in the case without further comment on Dr. Wetli.
We agree with Dickerson that the foregoing closing-argument remarks
were improper. While counsel is permitted to comment on the credibility of
witnesses and perceived weaknesses in the other party's case, these comments,
in their totality, exceeded the bounds of permissible commentary.
To be sure, it is not improper, as a general matter, to comment on a
witness's credibility and possible bias through, for example, pointing out how
much he was paid to give his opinion in this and other cases, if such comments
are supported by the evidence. Indeed, several of these comments, taken alone,
were certainly proper. We have no intention, for example, for the commonly
used phrase "hired gun" to be eliminated from the lexicon of our trial lawyers
out of fear of violating this opinion. Cf. Hale v. Commonwealth, 396 S.W.3d
841, 850-51 (Ky. 2013) (characterizing "no harm done" defense as "offensive"
was not improper).
But when considered as a whole, the prosecutor's remarks here went too
far in conveying inflammatory, emotional expressions of personal offense and
"outrage," as well as particularly provocative claims that the witness had gotten
wealthy at the expense of murdered children. This is inarguably outside the
37
bounds of proper argument and is unbefitting of a prosecutor who, above all
else, is tasked with seeking a fair and true verdict based on the evidence in the
case. "[I]t is his duty to see that no statement that is calculated to ... stir up
prejudice in [the jurors'] minds is made." BoWling v. Commonwealth, 279
S.W.2d 23, 25 (Ky. 1955). It is clear that the prosecutor violated that duty here.
That these remarks were improper alone does not end our inquiry,
however, because again reversal is justified only if the improper closing-
argument comments were flagrant and, as such, rendered the trial
fundamentally unfair. So to determine whether the improper comments require
reversal, we must again refer back to the four-factor test for flagrancy.
As to the first factor, while we do not believe the remarks mislead the
jury, they did tend to prejudice Dickerson. They contained incendiary
expressions of the prosecutor's personal ire towards the defense expert and
were certainly geared towards evoking a similar emotional response in the jury.
Their probable effect, then, was to encourage the jury to summarily reject the
expert's opinion—which was, of course, the tenuous foundation on which the
viability of Dickerson's "alibi" defense depended—as not only incredible, but
worthy of scorn. Obviously, this factor weighs in Dickerson's favor.
As to the second factor, the prosecutor's improper closing-argument
comments about Dr. Wetli were isolated. Of the Commonwealth's
approximately one-and-one-half-hour closing argument at the conclusion of
the five-day trial, the prosecutor's entire discussion of Dr. Wetli lasted only
about five minutes. And the improper comments, including defense counsel's
38
objections and the trial court's admonition, constituted only about one minute
of that time. So this factor weighs in the Commonwealth's favor.
The third factor, on the other hand, weighs against the Commonwealth
because there can be little, if any, doubt that the prosecutor put them before
the jury quite deliberately. It cannot be reasonably argued that it was only by
accident that the prosecutor let slip in front of the jury his belief that the
defense expert had gotten rich on the "backs of dead children" and that they
should be as "outraged" about it as him. Thus, this factor too weighs in
Dickerson's favor.
Finally, as we note throughout this opinion, the fourth factor—the
strength of the evidence of Dickerson's guilt—greatly weighs in the
Commonwealth's favor.
Therefore, the results of the four-factor test for flagrancy are a relative
wash: two factors weigh in Dickerson's favor, and two weigh in the
Commonwealth's. When faced with such a "state of relative equipoise," to
determine whether relief is appropriate, we must revert to the overarching
focus of appellate review of prosecutorial misconduct: "an examination of the
trial as a whole to determine if the improper comments undermined the
essential fairness of [Dickerson's] trial." Mayo, 322 S.W.3d at 57.
In assessing whether the prosecutor's improper statements about
Dr. Wetli rendered Dickerson's trial fundamentally unfair, the significance of
the mountainous evidence against him cannot be understated. The
fundamental-fairness inquiry, in essence, turns on whether the prosecutor's
comments risked causing the jury to convict Dickerson based on inflamed
39
passions or prejudice, rather than the evidence. In this regard, we are
convinced that the jury based its guilty verdict on the detailed and essentially
irrefutable medical, photographic, and testimonial evidence of the extensive
physical trauma incurred by Watson and the other children; the expert
opinions from Drs. Rolf and Currie explaining how those injuries could have
reasonably only been caused by severe physical abuse; and the testimony of
Braxton describing (and acting out), in graphic detail, the various means by
which Dickerson had exacted such abuse.
In addition to this overwhelmingly compelling proof of guilt, there was
substantial other testimony elicited from numerous other sources—neighbors,
family members, friends, etc.—that, while being less direct or only
circumstantial evidence of guilt, was nevertheless highly incriminating and
corroborative of the direct proof. We are unconvinced that the jury's verdict was
based on anything other than this voluminous, compelling body of evidence of
Dickerson's guilt.
In addition, it is also relevant that the trial court took corrective action,
admonishing the jury to disregard the "whore" descriptor. While this
admonition, standing alone, would likely have been insufficient to wholly cure
the improper comments, it is nevertheless a factor to consider when evaluating
how the comments affected the overall fairness of the trial. This is especially so
given that Dickerson received all (or, rather, more) relief from the trial court
than he sought in making his contemporaneous objection (which, as it were,
was none). As in Mayo, we decline to find on appeal that the trial court should
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have taken even more initiative than it did here to grant Dickerson more relief
than he requested. See 322 S.W.3d at 57.
In conclusion, while the improper remarks about Dr. Wetli were certainly
troubling, they were not so egregious or prejudicial to have undermined the
fairness of Dickerson's trial as a whole. That notwithstanding, counsel should
take caution not to replicate the prosecutor's error here. Our holding is
particular to this case and should not be read as allowing these kinds of
personal, emotive attacks on witnesses to be made with impunity; such
comments are undoubtedly improper, far-exceed the permissible bounds of
closing arguments, and will often justify reversal in future cases.
III. Conclusion
Because none of Dickerson's claims of error require reversal, the
judgment of conviction and sentence of the Floyd Circuit Court is affirmed.
Minton, C.J.; Cunningham, Hughes, Keller and Venters, JJ., concur.
Wright, J., not sitting.
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COUNSEL FOR APPELLANT:
Ned Barry Pillersdorf
Pillersdorf, Derossett & Lane
124 West Court Street
Prestonsburg, Kentucky 41653
COUNSEL FOR APPELLEE:
Andy Beshear
Attorney General
Leilani K. M. Martin
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601
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