Jody Scott v. Commonwealth of Kentucky ( 2020 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.”
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED: DECEMBER 17, 2020
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2019-SC-0348-MR
JODY SCOTT APPELLANT
ON APPEAL FROM PIKE CIRCUIT COURT
V. HONORABLE EDDY COLEMAN, JUDGE
NO. 18-CR-00289
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Jody Scott appeals as a matter of right1 from the Pike Circuit Court final
judgment sentencing him to twenty years’ imprisonment for his convictions of
nine counts of first-degree trafficking in a controlled substance. Scott’s sole
claim on appeal is that palpable error resulted from the prosecutor’s alleged
flagrant misconduct during closing argument. Finding no palpable error, we
affirm.
I. Factual and Procedural Background
From July 31, 2017 through September 13, 2017, a confidential
informant conducted a total of eight recorded undercover drug buys from Scott
on behalf of Kentucky State Police (“KSP”). On September 14, 2017, KSP
1 Ky. Const. § 110(2)(b).
1
detectives executed a search warrant of Scott’s home and discovered
incriminating evidence. Scott cooperated with police and called his supplier,
Lonnie Kerr, to have him bring over cocaine with the understanding that Scott
would sell it, as usual. Kerr was then arrested and later pled guilty.
During trial, Scott called Kerr to testify in his case-in-chief. Kerr testified
to two facts: (1) he received a call from Scott on September 14, 2017 and (2) he
lived about two miles from Scott. At this point, the trial court sua sponte called
a bench conference and inquired as to who represented Kerr. The trial court
then recessed so Kerr could consult with his counsel. Upon retaking the
stand, Kerr invoked his Fifth Amendment right against self-incrimination. The
court then excused Kerr from the witness stand.
The conduct which Scott takes issue with on appeal occurred during the
Commonwealth’s guilt phase closing argument, when the prosecutor
commented on the quality issues with the video and audio recording of Scott’s
sales to the confidential informant and how the cameras did not capture
everything perfectly. The prosecutor stated that the recordings are
corroborating evidence, as no witness was going to come in and testify to being
at Scott’s house and watching Scott sell drugs directly to the confidential
informant. The prosecutor then stated, “You saw it. His own supplier got on
the stand and wouldn’t say anything. Not me, I know nothing.” The
prosecutor remarked that the audio and video recording, albeit imperfect, is the
best documentation they have.
Scott did not object to the prosecutor’s remarks. He now claims those
remarks amounted to flagrant prosecutorial misconduct which resulted in
palpable error and requires reversal. We disagree.
2
II. Standard of Review
RCr2 10.26 provides that “[a] palpable error which affects the substantial
rights of a party may be considered . . . 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.” “Palpable error relief is available under RCr 10.26 only upon a
determination that manifest injustice has resulted from the error. ‘Manifest
injustice’ is ‘error [that] so seriously affect[s] the fairness, integrity, or public
reputation of the proceeding as to be ‘shocking or jurisprudentially
intolerable.’” Davidson v. Commonwealth, 548 S.W.3d 255, 261 (Ky. 2018)
(citations omitted).
III. Analysis
Prosecutorial misconduct is defined as a prosecutor’s “improper or
illegal” attempt to persuade the jury to wrongly convict or assess an unjustified
punishment. Noakes v. Commonwealth, 354 S.W.3d 116, 121 (Ky. 2011).
Appellate consideration of alleged prosecutorial misconduct focuses on the
overall fairness of the trial. Id. (citations omitted).
With respect to allegations of prosecutorial misconduct during closing
arguments, we note that counsel is afforded wide latitude during those
arguments. Padgett v. Commonwealth, 312 S.W.3d 336, 350 (Ky. 2010). “The
longstanding rule is that counsel may comment on the evidence and make all
legitimate inferences that can be reasonably drawn therefrom.” Id. (citations
omitted). This Court will reverse on grounds of prosecutorial misconduct in a
2 Kentucky Rules of Criminal Procedure.
3
closing argument “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.” Dickerson v. Commonwealth, 485
S.W.3d 310, 329 (Ky. 2016) (citation omitted).
Scott does not argue that the three-prong test for non-flagrant
misconduct was met. Rather, he seeks reversal on grounds that the
prosecutor’s conduct was “flagrant.” In determining whether a prosecutor's
improper comments constitute reversible flagrant misconduct, we use a four-
part test: “(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.” Id. (citation omitted).
As to the first prong, the comment by the prosecutor here did not serve
to mislead the jury. Indeed, the prosecutor’s statement was accurate: no
witness testified to seeing Scott sell drugs to Kerr and Kerr refused to testify.
And in context, the prosecutor’s comments were more along the lines of an
explanation as to what weight to afford certain evidence. Further, Scott points
to no prejudice resulting from the prosecutor’s comment on evidence of record.
Secondly, the comment by the prosecutor was isolated. Third, while the record
is unclear as to whether the comment was made deliberately or accidentally, it
was at most an offhand, explanatory remark. Lastly, the evidence against Scott
was overwhelming: proof was presented that he sold drugs to a confidential
informant on numerous occasions, incriminating evidence was seized from his
4
home, and he admittedly cooperated with police to set up Kerr after police
searched his home.
As none of the Dickerson factors weigh in Scott’s favor, and considering
the totality of the prosecutor’s closing argument, we find that this single,
isolated offhand remark does not rise to the level of flagrancy so as to require
reversal. Scott has presented no legitimate reason to believe that the jury
convicted on anything but the evidence of his guilt. Finally, given that Scott
failed to contemporaneously object at trial, we are unable to say that palpable
error resulted.
IV. Conclusion
The judgment of the Pike Circuit Court is affirmed.
All sitting. All concur.
5
COUNSEL FOR APPELLANT:
Karen Shuff Maurer
Assistant Public Advocate
Department of Public Advocacy
COUNSEL FOR APPELLEE:
Daniel J. Cameron
Attorney General of Kentucky
Kenneth Wayne Riggs
Assistant Attorney General
6