Donald M. Lynch v. Commonwealth of Kentucky ( 2022 )

RENDERED: MARCH 24, 2022
TO BE PUBLISHED
Supreme Court of Kentucky
2021-SC-0022-MR
DONALD M. LYNCH APPELLANT
ON APPEAL FROM OHIO CIRCUIT COURT
V. HONORABLE THOMAS O. CASTLEN, SPECIAL JUDGE
NO. 18-CR-00219
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE LAMBERT
AFFIRMING
Donald Lynch (Lynch) was found guilty of first-degree rape, murder,
abuse of a corpse, first-degree trafficking in a controlled substance, and
tampering with physical evidence. He was sentenced to life in prison without
parole after the jury found he committed murder during the commission of
rape. He now appeals the resulting sentence as a matter of right.1 After
review, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Amanda Riley (Amanda) took her daughter to the doctor on the morning
of December 16, 2016. Amanda’s mother, Sharon Ellis (Ellis), gave Amanda
the child’s insurance card before she left. Amanda stopped by the house of her
1 Ky. Const. § 110(2)(b).
estranged husband, Heath Riley (Heath), to get the child’s health-care debit
card. They argued, he refused to give it to her, and she left. Amanda then took
her daughter to the doctor, returned home, left again to run some errands, and
then returned home again. Amanda left home once more that evening. Ellis
did not see who had picked her up.
Amanda’s body was found floating in the waters of the Peabody Wildlife
Management Area early the next morning by a trapper. Her daughter’s
insurance card was discovered in her pocket after police retrieved her body
from the water. The insurance card led police to Heath, who identified her
body. Amanda’s cell phone and a pack of cigarettes were located at the top of a
boating ramp near where her body was discovered.
Police notified Ellis that Amanda had died. While the police were still at
Ellis’s home, Amanda’s boyfriend, Joshua Estep (Estep), called Ellis because he
was concerned that he had not heard from Amanda. Ellis informed him that
Amanda had died. Estep was in Florida at the time. He belonged to a local
chapter of a motorcycle club.
Police immediately started investigating the details of Amanda’s life.
Lynch’s name came up several times during the course of their investigation.
One of Amanda’s friends provided police with Lynch’s phone number. Lynch’s
phone number was in Amanda’s phone under the name “Matt Dodge.”
Amanda’s cellphone contained text messages between the two. She had
texted Lynch early on the evening of the 16th and asked him if he had
2
methamphetamine, and offered him gas money if he would come pick her up.
Lynch texted Amanda when he arrived at her house. Lynch had deleted the
texts between him and Amanda and had attempted to delete all other data from
his cell phone, including a text message from James Johnson, which said
“hope you ain’t been out at your usel [sic] nighttime hangout in the last couple
days.”
Lynch gave a statement to police several days after Amanda’s death. He
claimed that he and Amanda had been together on the night she died, but that
he had smoked methamphetamine with her and then left her in the middle of
the road, though he was not certain where.
An autopsy was performed on Amanda’s body. She died from blunt force
trauma to the head. She had lacerations to her scalp, bruising and contusions
on her arms, and broken bones in her right arm and hand. Post-mortem
testing revealed that Amanda had methamphetamine in her blood. The
examiner also completed a rape kit, which revealed that Lynch’s DNA was
present. Subsequent testing performed on Lynch’s clothing would show that
Amanda’s blood was present on Lynch’s right shoe.
Cell location data analysis was completed on Lynch and Amanda’s
cellphones. The data reflected that Lynch and Amanda’s cellphones were in
close proximity for much of the night. Between 7:30 p.m. and 9:00 p.m.
Lynch’s phone left the wildlife management area. Amanda’s did not leave the
area, and her phone did not move at all for the remainder of the night.
3
In January 2017, about a month after the murder, Joseph Cox (Cox) was
walking along Rochester Road—which runs near the Peabody Wildlife
Management Area—when he found a purse under a bridge. Cox testified that
when he found it, the purse was soaking wet and he put it on a sheet to dry
and waited until the next day to go through it. Cox found Amanda’s
identification in the purse, and, after recognizing her name from the news,
notified the police. He did so not by calling the police, but instead by riding
around in search of a patrol car. He stopped for food and saw a Kentucky
State Trooper nearby. He gave the purse to police at that time.
The Commonwealth theorized that Lynch had raped Amanda, she got out
of his truck, and then he murdered her. The Commonwealth pointed to the
bruising and defensive wounds on Amanda’s body, the semen present in her
vagina, anus, and underwear, and the sheer amount of trauma to her head and
body when arguing that the murder occurred in the course of rape.
At trial, Lynch chose not to testify. Defense counsel asked the trial court
to allow Lynch’s waiver of his right to testify to be on the record. The record
reflects that the following exchange occurred after the trial court dismissed the
jury for a brief recess and asked everyone present to step out of the courtroom:
Court: [Defense counsel], you wanted to put
something on the record?
Defense Counsel: Yes, sir. Mr. Lynch is choosing to
exercise his right not to testify. And, uh. . .
Court: You want to ask him some questions [on the
record] and make sure he . . .?
Defense Counsel: Yes, sir.
4
Court: Okay. Go right ahead.
[. . .]
Defense Counsel: Are you Donald Matthew Lynch?
Lynch: Yes, sir.
Defense Counsel: And do you understand that you
have a right to testify here today, and that’s only
something you decide?
Lynch: Yes, sir.
Defense Counsel: Has it also been explained to you
that you have a right not to testify?
Lynch: Yes, sir.
[. . .]
Defense Counsel: Now, Mr. Lynch, based on this
knowledge you have—that you have a right to testify or
right not to testify—that is completely your choice.
What are you choosing to do?
Lynch: I am choosing not to take the stand and testify
due to the fear of retaliation on certain things or, say,
things come out.
Defense Counsel: Okay, so you’re choosing not to
testify?
Lynch: Yes, sir.
Defense Counsel: Judge, I think that’s all I have of
this witness.
Court: What was the reason?
Lynch: Fear of retaliation due to certain affiliations of
witnesses and relations to motorcycle clubs. Physical
health reasons that might arise later if I do [testify].
5
Court: I don’t quite follow the logic of that. So, you’re
being tried for murder here, and you’re saying that for
fear of retaliation you don’t want to testify in your
defense?
Lynch: Fear and retaliation by certain people who
have been called to the stand. Their affiliation with
certain clubs and relations to a lot other people
around based on knowledge I have of that person and
the club, he’s affiliated with, I choose not to testify. It
puts my life and the family of mine that is still alive in
danger, because he has been to a state where my
family is living, the surviving members of my family.
Based on the facts and the evidence I know of his
affiliation, it is detrimental to me and my family if I do
get up there and disclose certain stuff and also that I
don’t feel that at this time that it it’s going really
change anything that’s been presented.
Court: Alright. Okay, alright, thank you very much.
The jury then convicted Lynch on all counts. This appeal followed. Additional
facts are discussed below as necessary.
II. ANALYSIS
Lynch alleges three errors on appeal. First, that the trial court erred by
failing to inquire about Lynch’s waiver of his constitutional right to testify.
Second, that the trial court erred by failing to direct a verdict of acquittal on
rape in the first degree. Third, that the trial court erred by failing to direct a
verdict of acquittal on tampering with physical evidence.
A. The trial court did not commit reversible error during Lynch’s
waiver of his right to testify.
Lynch asks this Court to broaden the scope of a trial court’s duty to
protect a defendant’s right to testify. He argues that, because he stated on the
6
record that he was waiving his right to testify due to fear of retaliation from the
witness and his motorcycle club, the trial court should have inquired further
regarding the voluntariness of his waiver. He does not articulate what
actionable result further inquiry would have ultimately taken the form of.
Instead, he states that the lack of further inquiry so severely impeded his
constitutional rights that he is now entitled to a new trial. And, he asks this
Court to adopt a new rule that requires trial courts to engage in an in-depth
questioning of the defendant regarding the waiver of the right to testify to
assess voluntariness if the trial court is aware of any impediment to the
defendant’s ability to exercise that right. Such a rule is impractical and prone
to inconsistent application. For the reasons discussed below, we decline his
invitation to adopt that rule.
1. Standard of Review
This issue is unpreserved.2 Though defense counsel moved for Lynch’s
waiver to be on the record, defense counsel did not object to the limited
colloquy that did occur, nor did counsel question Lynch further concerning the
voluntariness of the waiver. And, neither did defense counsel object when the
trial court accepted Lynch’s waiver. Because this issue is unpreserved, Lynch
has requested review pursuant to RCr 10.26.3 This Court’s review of an
2 Kentucky Rule of Criminal Procedure (RCr) 9.22.
3 This Court employed the palpable error standard of review to the question of
whether a trial court must engage in colloquy to determine if a defendant’s waiver of
the right to testify is voluntary and knowing in Florence v. Commonwealth, 120 S.W.3d
699 (Ky. 2003).
7
unpreserved error that affects substantial rights is limited to whether palpable
error was committed by the trial court.4 A palpable error, which must be
However, we note that which standard of review to apply in cases concerning
the right to testify is hotly contested. See Arthur v. United States, 986 A.2d 398, 415
(D.C. 2009) (stating that, because the right to testify has been declared a
“‘fundamental right,’ . . . harmlessness analysis is ‘entirely misplaced. To apply such
an outcome-determinative analysis at worst denigrates the position of the individual
with respect to his own defense and trial and at best exhibits an unthinking
paternalism toward criminal defendants.’”); Frey v. Schuetzle, 151 F.3d 893, 898 n.3
(8th Cir. 1998) (“[W]e note that it is unclear if harmless error analysis applies to the
denial of a defendant's right to testify.”); See also United States v. Butts, 630 F. Supp.
1145, 1148 (D. Me. 1986); But cf. Brown v. Artuz, 124 F.3d 73, 80 (2d Cir. 1997)
(applying harmless error review and noting that where defendant would have testified
only “to demonstrate that the prosecution failed to disprove his defense of justification
beyond a reasonable doubt,” argument for prejudice is weaker); Martinez v. Ylst, 951
F.2d 1153, 1157 (9th Cir. 1991) (holding that it was not harmless error for the court to
refuse to exclude evidence of prior convictions, which resulted in defendant's decision
not to take the stand); United States v. Leo, 941 F.2d 181, 195 (3d Cir. 1991) (stating
that although “[w]e believe that the district court abused its discretion when it ruled
that [defendant] could not testify in his own defense . . ., that error does not provide
the basis for a new trial if the error was harmless beyond a reasonable doubt.”); Ortega
v. O'Leary, 843 F.2d 258, 262-63 (7th Cir. 1988) (holding that trial court's refusal to
reopen evidence to include defendant's testimony was constitutional error, and that
“the context of the case will indicate whether the error was harmless beyond a
reasonable doubt”) (citation omitted); United States v. Phillips, 664 F.2d 971, 1042 (5th
Cir. 1981) (“[E]ven if we assume that [defendant] did not waive his right to testify when
he stated to the trial court that he no longer planned to take the stand, we conclude
that the deprivation of [defendant's] right to testify in his own behalf was error that
was harmless beyond a reasonable doubt . . . because the evidence of [defendant's]
guilt was overwhelming.”) overruled on other grounds by United States v. Huntress, 956
F.2d 1309, 1317 (5th Cir. 1992).
Either way, the United States Supreme Court has yet to address whether denial
of the right to testify is a structural error, which would result in automatic reversal, or
a “trial-type” error that is subject to harmless error review. This Court, absent that
guidance, has employed the harmless error review to this issue, where we were
cognizant of this ongoing debate. Quarels v. Commonwealth, 142 S.W.3d 73 (Ky.
2004). But, because the error is unpreserved, we need not and will not wade back
into the contentious debate of which standard to employ.
4 RCr 10.26.
8
obvious and serious,5 exists where there is “a probability of a different result or
error so fundamental as to threaten due process.”6
2. Defense counsel—not the trial court—has a duty to act when he
or she is aware of an impediment to their client’s free exercise of
the right to testify.
The United States Supreme Court has held that a defendant’s right to
testify on his or her own behalf at trial springs from the Fifth, Sixth, and
Fourteenth Amendments to the United States Constitution.7 And, Kentucky
law protects the defendant’s right to testify.8 Of course, the corollary right of
the right to testify is the right not to testify—i.e. to remain silent.9 Only the
defendant may exercise the right to testify or refuse to exercise that right, free
from improper influence by the court and without undue encumbrance by
counsel.10 In short, the right to testify is a right to choose between the
competing rights of testifying and remaining silent, both of which are rooted in
the state and federal constitutions and, in the Commonwealth, buttressed by
statute. The choice of one right inherently means the surrender of the other.
The defendant’s waiver of the affirmative right to testify, whether
through silence or statement on the record, must be “knowing and
5 Brock v. Commonwealth, 947 S.W.2d 24, 28 (Ky. 1997).
6 Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006).
7 See Rock v. Arkansas, 483 U.S. 44, 51-52 (1987).
8Ky. Const. § 11; Kentucky Revised Statute (KRS) 421.225; See Quarels, 142
S.W.3d at 78 (Ky. 2004); Woolfolk v. Commonwealth, 339 S.W.3d 411, 419 (Ky. 2011).
9 Rock, 483 U.S. at 52-53.
10 Quarels, 142 S.W.3d at 78–79.
9
voluntary.”11 If a defendant says nothing to the trial court concerning his or
her wish to testify against advice of counsel, then the court is to infer that the
defendant has waived this right as part of trial strategy, and the court is under
no obligation to inquire about a waiver.12 This “no-inquiry”13 rule is, generally,
employed regularly across the Commonwealth as standard practice.14
However, if the court knows a defendant wishes to testify and his or her
counsel is attempting to prevent that defendant from testifying, then it is
incumbent upon the court to ensure the defendant’s right to testify is protected
through direct colloquy, on the record, and out of the presence of the jury.15
The trial court must be careful not to intrude on the attorney-client
relationship16 and must also avoid language so stern as to persuade a
defendant into exercising or waiving the right.17
This Court has held that a direct colloquy with the defendant is best
practice when a trial court is aware of a dispute between the defendant and
11 Watkins v. Commonwealth, 105 S.W.3d 449, 453 (Ky. 2003) (citing United
States v. Joelson, 7 F.3d 174, 177 (9th Cir. 1993)).
12 United States v. Webber, 208 F.3d 545, 551 (6th Cir. 2000); United States v.
Stover, 474 F.3d 904, 908 (6th Cir. 2007).
13 Some courts call this the “demand” rule, because a defendant must demand
their right to testify, or it is waived. See, e.g., Boyd v. United States, 586 A.2d 670,
676 (D.C. Cir. 1991).
14 Riley v. Commonwealth, 91 S.W.3d 560, 562 (Ky. 2002) (quoting United States
v. Pennycooke, 65 F.3d 9, 13 (3d Cir. 1995), “Where the trial court has no reason to
believe that the defendant's own attorney is frustrating his or her desire to testify, a
trial court has no affirmative duty to advise the defendant of the right to testify or to
obtain an on-the-record waiver of such right.”)).
15 Crawley v. Commonwealth, 107 S.W.3d 197, 199 (Ky. 2003).
16 Riley, 91 S.W.3d at 562-63.
17 Woolfolk, 339 S.W.3d at 421.
10
defense counsel concerning the right to testify,18 but we have yet to establish
exactly what a trial court is to do in a situation as the one presented here,
where it is not defense counsel, but a witness, who has allegedly inhibited the
defendant’s right to testify. The United States Supreme Court has, to date,
been wholly silent on whether or when it is appropriate for a trial court to
engage in direct colloquy with a defendant, or what measures a trial court
should take to ensure that defendant’s right to testify is satisfied. Lower
federal courts disagree as to precisely what procedure trial courts are to
follow.19 And, state courts take even more disparate approaches as to when a
18 See Crawley, 107 S.W.3d at 199.
19 A majority of federal circuits follow some version of the “no-inquiry” or
“demand” rule. See United States v. Ortiz, 82 F.3d 1066, 1069 n.8 (D.C. Cir. 1996)
(holding that the trial court has no duty to sua sponte conduct an on-the-record
colloquy regarding defendant's waiver of the right to testify, but the situation may
arise where it should do so); Siciliano v. Vose, 834 F.2d 29, 30 (1st Cir. 1987) (“[A]
criminal defendant ‘must claim’ his privilege or right to testify ‘by attempting to take
the stand or it is waived.’”); Brown v. Artuz, 124 F.3d 73, 79 (2d Cir. 1997) (“We agree
with those courts that place no general obligation on the trial court to inform a
defendant of the right to testify and ascertain whether the defendant wishes to waive
that right.”); United States v. Leggett, 162 F.3d 237, 246 (3d Cir. 1998) (finding no
error in trial court's failure to ascertain whether defendant had waived right to testify,
collecting cases); Webber, 208 F.3d at 550–51 (“Waiver is presumed from the
defendant's failure to testify or notify the trial court of the desire to do so.”); Arredondo
v. Huibregtse, 542 F.3d 1155, 1165–66 (7th Cir. 2008) (stating that a colloquy
regarding defendant's waiver of the right to testify is not required, but is within the
court’s discretion); United States v. Ehrmann, 421 F.3d 774, 783 (8th Cir. 2005) (“A
district court is not required to obtain from a defendant an express, on-the-record
waiver of his right to testify.”); United States v. Edwards, 897 F.2d 445, 447 (9th Cir.
1990) (stating that a defendant's “silence at trial effectively waived his right to testify
on his own behalf”); United States v. Teague, 953 F.2d 1525, 1533 n.8 (11th Cir. 1992)
(en banc) (holding “[d]efense counsel bears the primary responsibility for advising the
defendant of his right to testify,” and “it would be inappropriate to require the trial
court to discuss this choice with the defendant”).
11
trial court must step in to protect a defendant’s right to testify, and even then
what the trial court is obligated to do to defend that right.20
20 Some state courts require the trial judge put the waiver colloquy on the
record, regardless of whether there is a conflict between the defendant and defense
counsel. See LaVigne v. State, 812 P.2d 217, 222 (Alaska 1991) (stating “judges
should make an on-the-record inquiry after the close of the defendant's case, although
out of the jury’s hearing, into whether a non-testifying defendant understands and
voluntarily waives his right”); People v. Curtis, 681 P.2d 504, 514 (Colo. 1984) (holding
“[a] trial court exercising appropriate judicial concern for the constitutional right to
testify should” conduct a colloquy with the defendant); Tachibana v. State, 900 P.2d
1293, 1299–1305 (Haw. 1995) (stating that a colloquy must be conducted at the trial
court level because burden imposed by post-trial challenges absent on-the-record
waiver was significantly higher); Culberson v. State, 412 So.2d 1184, 1186 (Miss.
1982) (stating that “in any case where a defendant does not testify, before the case is
submitted to the jury, the defendant should be called before the court out of the
presence of the jury, and advised of his right to testify”); State v. Neuman, 371 S.E.2d
77, 82 (W. Va. 1988) (adopting the reasoning and procedures outlined by the Colorado
Supreme Court in Curtis, supra); State v. Anthony, 860 N.W.2d 10, 20 (Wis. 2015)
(holding “we require that a circuit court ‘conduct a colloquy with the defendant in
order to ensure that the defendant is knowingly and voluntarily waiving his or her
right to testify.’”).
Other state courts only require a trial court to engage in direct colloquy with the
defendant regarding the waiver when the court is aware that the waiver is somehow
constitutionally deficient. See Momon v. State, 18 S.W.3d 152, 162 (Tenn. 1999), reh’g
granted (Mar. 30, 2000) (stating “[u]nder normal circumstances, therefore, the trial
judge should play no role in this procedure, unless the judge believes there is evidence
that the defendant is not making a valid waiver of the right to testify”); Torres-Arboledo
v. State, 524 So.2d 403, 409–11 (Fla. 1988) (collecting authority and concluding that
the right to testify “does not fall within the category of fundamental rights which must
be waived on the record by the defendant himself”); Sanford v. State, 695 S.E.2d 579,
584 (Ga. 2010) (stating “there is no requirement that the trial court have an on-the-
record colloquy with a non-testifying defendant in order to inform the defendant of the
right to testify and to obtain a knowing and intelligent waiver of that right”); Aragon v.
State, 760 P.2d 1174, 1178–79 (Idaho 1988) (“[T]he defendant's right to testify at trial
does not require an on-the-record waiver.”); State v. Breeden, 304 P.3d 660, 673 (Kan.
2013) (“‘A trial court has no duty sua sponte to address a silent defendant and inquire
whether he or she knowingly and intelligently waives the right to testify.’”);
Commonwealth v. Smith, 924 N.E.2d 270, 276–77 (Mass. 2010) (stating “[i]t is within
the judge's discretion whether to conduct such a colloquy”); State v. Thomas, 910 P.2d
475, 478 (Wash. 1996) (en banc) (“[A] trial judge is not required to advise a defendant
of the right to testify in order for a waiver of the right to be valid.”).
12
The higher duty to protect a defendant’s rights, including the inverse
rights to testify or not testify, rests with defense counsel. As the United States
Supreme Court stated:
The Sixth Amendment recognizes the right to the
assistance of counsel because it envisions counsel’s
playing a role that is critical to the ability of the
adversarial system to produce just results. An accused
is entitled to be assisted by an attorney, whether
retained or appointed, who plays the role necessary to
ensure that the trial is fair.21
The role that defense counsel has in ensuring the fairness of trial, in our view,
includes taking appropriate action when defense counsel believes the
defendant’s rights are not respected. In Pennycooke, the Third Circuit Court of
Appeals made clear that the duty of providing such advice and of ensuring that
any waiver is knowing and intelligent rests with defense counsel, not with the
trial court.22
Further, the appropriate remedy for a defendant being intimidated from
testifying is seeking criminal prosecution for the intimidator. Any defendant
threatened specifically should seek the full protection of the law, alert the court
hearing the criminal proceedings against him or her, and seek to exclude the
testimony of the intimidator, or ask the court to take other protective
measures.
With the foregoing in mind, it was, at worst, unwise for the trial court to
engage in a direct colloquy with Lynch concerning his right to testify and it
21 Strickland v. Washington, 466 U.S. 668, 685 (1984).
22 Pennycooke, 65 F.3d at 13.
13
should have followed the “no-inquiry” rule. But, as is apparent from the
exchange, it was defense counsel—not the trial court—that elicited Lynch’s
statement that he was fearful for his life due to a witness’s affiliation with a
biker club. Importantly, Lynch did not specifically state that any covert or
overt threat had been made against him. Just that, because he had some
awareness of the witness’s “affiliation with certain clubs and relations to a lot
other people around based on knowledge,” he “chose not to testify.” And, the
trial court had taken steps to ensure that anything Lynch said on the record
would be kept in the confines of the courtroom. The court dismissed the jury
and asked the public to leave the room. The trial court also placed law
enforcement officers outside the doors to ensure no one entered while Lynch
spoke on the record. Further, the exchange makes apparent that the trial
court did not express any improper opinion about whether Lynch should or
should not testify. Obviously, the trial court was concerned that Lynch was
not aware of the seriousness of the charges against him, and, reminding him of
that, stated: “you’re being tried for murder here, and you’re saying that for fear
of retaliation you don’t want to testify in your defense?” Lynch answered
affirmatively, and concluded: “I don’t feel that at this time that it it’s going
really change anything that’s been presented.”
In his brief, Lynch does not assert that he did, in fact, desire to testify,
nor does he argue that his trial counsel prevented him from testifying. To be
clear, there was no state action that deprived Lynch of exercising his right to
testify. Lynch has made no allegation that any threat levied against him,
14
whether real or imagined, was made on behalf of the Commonwealth. And,
Lynch’s counsel did not impermissibly inhibit that right. Lynch knew he had
the right to testify and chose not to. The trial court did not prevent or limit
him from exercising that right. Though under no obligation to do so, the trial
judge sought briefly to confirm Lynch’s decision to waive his constitutional
right to testify. We cannot say this was error, let alone an error that resulted in
manifest injustice. The short of the matter is that Lynch invites us to find a
constitutional violation (separate and distinct from a claim of ineffective
assistance of counsel) in the infringement of an accused's right to present a
defense by a private party alone, due to the fact that the trial court and defense
counsel were aware that he was afraid of retaliation.
Based on the foregoing, we reiterate that, generally, a trial court should
refrain from engaging in direct colloquy with a defendant regarding the right to
testify, unless the trial court is aware that trial counsel is overriding the
defendant’s wish to exercise the right to testify. We will not foreclose the
opportunity for a defendant to seek review of the actions of a state actor
working to prevent the defendant from exercising the right to testify. But,
where the alleged impropriety lies with a private actor, we cannot say that the
trial court did not, under either the federal or state constitutions, do enough to
protect the defendant’s right. And, we cannot say that the trial court should
have done more than what it did when it had not been asked to do more. As a
result, we likewise cannot say that palpable error occurred in the instant case.
15
In conclusion, assuming for the sake of Lynch’s argument that the threat
against him was real,23 we hold that where a private actor has worked to
impede a defendant’s right to testify, no constitutional violation occurs. A trial
court should hold steadfast to the “no-inquiry” rule, unless that court is aware
of an impediment to a defendant’s right to testify that has been impermissibly
exercised by defense counsel or the Commonwealth.
B. Lynch was not entitled to directed verdict on the charges of first-
degree rape or tampering with physical evidence.
Lynch argues next he was entitled to directed verdict on the charge of
first-degree rape.24 Ultimately, the trial court determined that there was
enough evidence to submit the charge to the jury after hearing argument from
both parties concerning Lynch’s motion for directed verdict. The trial court
stated:
I think that the evidence is sufficient for a jury to infer
that from those circumstances, from the
circumstances that occurred at that time, that she was
beat up and bludgeoned and found with his semen in
her, that a reasonable jury could infer that it was a
non-consensual sexual act, and that the bludgeoning
occurred for the purpose of keeping her from reporting
that, so I’m going to deny the motion.
In Commonwealth v. Benham, this Court explained:
[o]n a motion for directed verdict, the trial court must
draw all fair and reasonable inferences from the
evidence in favor of the Commonwealth. If the
23 Lynch did not state with specificity on the record what the threat was, or
whether it was real or perceived. A perceived threat is, on an absent record, an
imagined one. We cannot just assume that because Lynch says he was threatened
that he was.
24 This issue was preserved by Lynch’s motion for a directed verdict. RCr 9.22.
16
evidence is sufficient to induce a reasonable juror to
believe beyond a reasonable doubt that the defendant
is guilty, a directed verdict should not be given. For
the purposes of ruling on the motion, the trial court
must assume that the evidence for the Commonwealth
is true, but reserving to the jury questions as to the
credibility and weight to be given to such testimony.25
“To defeat a directed verdict motion, the Commonwealth must only produce
‘more than a mere scintilla of evidence.’”26 “On appellate review, the test of a
directed verdict is, if under the evidence as a whole, it would be clearly
unreasonable for a jury to find guilt, only then the defendant is entitled to a
directed verdict of acquittal.”27
KRS 510.040 provides:
(1) A person is guilty of rape in the first degree when:
(a) He engages in sexual intercourse with another
person by forcible compulsion.
KRS 510.010 states:
(2) “Forcible compulsion” means physical force or
threat of physical force, express or implied, which
places a person in fear of immediate death, physical
injury to self or another person, fear of the
immediate kidnap of self or another person, or fear
of any offense under this chapter. Physical
resistance on the part of the victim shall not be
necessary to meet this definition.
We now examine the evidence adduced at trial related to rape in the first
degree. The jury heard testimony and saw photos of bruising on Amanda’s
25 816 S.W.2d 186, 187 (Ky. 1991).
26Lackey v. Commonwealth, 468 S.W.3d 348, 352 (Ky. 2015) (quoting Benham,
816 S.W.2d at 187).
27 Benham, 816 S.W.2d at 187.
17
body. Dr. Christopher Kiefer (Dr. Kiefer), who performed the autopsy on
Amanda, could not say definitively whether the bruises on Amanda’s body
occurred before or after death. He noted, however, that bruising after death,
while uncommon, can occur. Dr. Kiefer offered no testimony relating to
injuries to the vagina or anus. There was no medical testimony that would say
definitively that any bruising to Amanda’s arms, shoulders, or back was due to
force applied by Lynch’s hands, or whether they were caused by him
bludgeoning her to death. However, the Commonwealth specifically identified
the bruising on Amanda’s arms, back, and shoulders, and pointed to the
semen present in Amanda’s underwear, vagina, and anus to argue that all of
this was evidence that Lynch held Amanda down to rape her, and then
murdered her to cover up the rape. With the foregoing evidence in mind, we
cannot say that “it would be clearly unreasonable for a jury to find guilt”28 on
the charge of first-degree rape. We agree with the trial court that “a reasonable
jury could infer that it was a non-consensual sexual act, and that the
bludgeoning occurred for the purpose of keeping her from reporting” the rape.
Lynch contends next he was entitled to directed verdict on the charge of
tampering with physical evidence. This issue was unpreserved.29 Lynch has
requested review for palpable error.30 As this Court explained in Wahl v.
Commonwealth:
28 Id.
29 RCr 9.22.
30 RCr 10.26.
18
Palpable error is one “easily perceptible, plain, obvious
and readily noticeable.” “[T]he required showing is
probability of a different result or error so fundamental
as to threaten a defendant's entitlement to due process
of law.” Our “focus is on what happened and whether
the defect is so manifest, fundamental and
unambiguous that it threatens the integrity of the
judicial process.”31
KRS 524.100 states:
(1) A person is guilty of tampering with physical
evidence when, believing that an official proceeding
is pending or may be instituted, he:
(a) Destroys, mutilates, conceals, removes or
alters physical evidence which he believes is
about to be produced or used in the official
proceeding with intent to impair its verity or
availability in the official proceeding.
We now examine the evidence adduced at trial related to tampering with
physical evidence. The jury heard from Ellis that Amanda had her purse with
her when she left the house with Lynch on the night she died. Cell phone data
placed Lynch and Amanda’s phones together where her body was found. Both
cell phone data and his own statement place Lynch in the approximate area
that the purse was found on the night she died, but did not reflect whether he
traveled along the exact path where Amanda’s purse was found by Cox. The
jury was allowed to consider Cox’s story on how the purse was found and no
claims against his credibility were made at trial. Lynch recognizes that a jury
is allowed to make reasonable inferences from circumstantial evidence.32
31 636 S.W.3d 484, 501 (Ky. 2021) (internal citations omitted).
32 Commonwealth v. James, 586 S.W.3d 717, 722 (Ky. 2019).
19
Lynch argues that the circumstantial evidence in the case was weak because
the purse was found by Cox over a month later in a creek and no forensic
testing was possible, therefore, he should have been entitled to a directed
verdict. The Commonwealth theorized that, after Lynch raped and murdered
Amanda, he threw the purse in the river in an attempt to delay identification of
Amanda’s body. Though there was no physical evidence that linked Lynch to
the purse, the cell phone data placing Lynch in the area as well as his own
admission, coupled with the time and nature of Amanda’s murder, as well as
the physical evidence on Lynch’s shoes and Amanda’s body, all amount to
“more than a mere scintilla of evidence.”33 Considering the whole body of
evidence, it was not error—let alone palpable error—for the trial court to allow
the jury to hear and consider the charge, because it would not be clearly
unreasonable for the jury to find guilt beyond a reasonable doubt based upon
that evidence.
III. CONCLUSION
For the foregoing reasons, we affirm the Ohio Circuit Court.
All sitting. All concur.
33 Benham, 816 S.W.2d at 187.
20
COUNSEL FOR APPELLANT:
Jennifer Wade
Assistant Public Advocate
Department of Public Advocacy
COUNSEL FOR APPELLEE:
Daniel J. Cameron
Attorney General of Kentucky
Jenny L. Sanders
Assistant Attorney General
Office of the Attorney General
21