Timothy Ganther v. Commonwealth of Kentucky ( 2023 )

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NOT TO BE PUBLISHED OPINION
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RENDERED: AUGUST 24, 2023
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2022-SC-0237-MR
TIMOTHY GANTHER APPELLANT
ON APPEAL FROM FAYETTE CIRCUIT COURT
V. HONORABLE ERNESTO SCORSONE, JUDGE
NO. 17-CR-01297
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Timothy Ganther appeals as a matter of right1 from a Fayette Circuit
Court judgment sentencing him to 25-years’ imprisonment for a murder
conviction and various drug offenses. On appeal, Ganther alleges prosecutorial
misconduct by the Commonwealth in relation to a misstatement of law made
during closing arguments of the trial, and also improper questioning by the
Commonwealth. Ganther argues that these issues amount to error that
demands reversal of his conviction. We hold that neither the statement nor the
questions amount to prosecutorial misconduct, and thus affirm Ganther’s
convictions.
1 KY. CONST. § 110(2)(b).
I. Facts and Procedural Background
On September 3, 2017, Ganther picked up the victim,
Jerome Wadsworth, from a Greyhound bus station in Cincinnati. Wadsworth
had travelled from Detroit, Michigan and had been in contact with Ganther
regarding his visit to Lexington. Wadsworth brought with him 100 grams of
heroin from Ganther’s alleged drug supplier, Gaige Phillips. Ganther sold some
of the drugs that evening with Wadsworth. Later that night, the men were
involved in an altercation with one another that left Wadsworth dead, shot in
the back of the head. Ganther testified that Wadsworth attempted to take
money and drugs from Ganther’s pockets, and a scuffle ensued. Ganther
struck Wadsworth in the back of the head, knocking him to the ground. As
Wadsworth began to get up, Ganther fired a single shot into the back of
Wadsworth’s head, killing him. Ganther confessed to shooting Wadsworth
during the confrontation, but alleged he acted in self-defense with the intent
only to injure him.
After a 3-day trial, the jury was given the option of convicting Ganther of
murder or of the lesser included offense of first-degree manslaughter, as well as
the various drug charges. After deliberations, the jury returned with a guilty
verdict as to murder as well as to the drug counts and recommended Ganther
be sentenced to a total of 25-years’ imprisonment. The trial court adopted the
jury’s recommendation. Ganther now appeals to this Court as a matter of
right.
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II. Standard of Review
Neither issue presented by Ganther on appeal was preserved at trial.
Accordingly, we review for palpable error as set forth in RCr2 10.26. Ganther’s
claims may only succeed if the “error is clear and plain, affects the substantial
rights of a party, and is more likely than other ordinary errors to affect the
outcome of the case.” McCleery v. Commonwealth, 410 S.W.3d 597, 605 (Ky.
2013).
III. Analysis
a. The prosecutor’s misstatement did not result in flagrant misconduct.
Ganther first alleges that the Commonwealth’s explanation of intent as to
murder amounts to prosecutorial misconduct. Upon review for palpable error,
we reverse “a conviction based on prosecutorial misconduct during closing
argument only if that misconduct was flagrant.” Lewis v. Commonwealth, 475
S.W.3d 26, 37 (Ky. 2015). After first identifying an error, we utilize a four-part
test to determine whether a misstatement results in misconduct that is
flagrant:
(1) whether the remarks tended to mislead the jury or 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.
Hannah v. Commonwealth, 306 S.W.3d 509, 518 (Ky. 2010), superseded by
statute on other grounds.
2 Kentucky Rules of Criminal Procedure.
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This Court has further stated that for palpable error review of alleged
prosecutorial misconduct during closing arguments,
[We] begin with an examination of both the amount of punishment
fixed by the verdict and the weight of evidence supporting that
punishment. Other relevant factors, however, include whether the
Commonwealth's statements are supported by facts in the record
and whether the allegedly improper statements appeared to rebut
arguments raised by defense counsel. Finally, we must always
consider these closing arguments “as a whole" and keep in mind
the wide latitude we allow parties during closing arguments.
Young v. Commonwealth, 25 S.W.3d 66, 74-75 (Ky. 2000).
Ganther’s argument that the prosecutor misrepresented the mental state
required for murder is well taken. During closing arguments, the prosecutor
stated that “. . .[the mental state] doesn’t have to be the intent to kill him
either, it’s just the intent for that action of shooting Jerome in the back of the
head.” This is a misstatement of the specific intent necessary for a conviction
of murder. As laid out in KRS3 507.020: “(1) A person is guilty of murder
when: (a) With intent to cause the death of another person, he causes the death
of such person[.]” Thus, the intent needed for a murder conviction is not
simply the intent to shoot a person as the prosecutor declared, but rather the
intent to cause that person’s death. See Paulley v. Commonwealth, 323 S.W.3d
715, 726 n.43 (Ky. 2010) (prosecutor’s statement that intentional murder only
required proof of intent to shoot, not intent to kill, was erroneous). Indeed, the
mere intent to pull the trigger lends itself to a number of possible offenses,
from wanton endangerment to murder, although we acknowledge that Ganther
3 Kentucky Revised Statutes.
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could hardly have anticipated the outcome of his shooting Wadsworth in the
back of the head would lead to anything less than Wadsworth’s death.
Nevertheless, the prosecutor’s description lacked sufficient precision to
comport with the law.
A prosecutor may discuss the law applicable to the facts at hand during
a closing argument but may not misstate the law. Padgett v. Commonwealth,
312 S.W.3d 336, 351 (Ky. 2010). An unobjected to misstatement of law is
treated in the same way as a misstatement of fact with regard to the
assessment of alleged prosecutorial misconduct. Matheney v. Commonwealth,
191 S.W.3d 599, 606 (Ky. 2006). Thus, we must analyze if this misstatement
of law satisfies the four-part test set forth in Hannah.
Given the nature of the misstatement, it likely misled the jury regarding
the definition of murder and/or the mental state required for the conviction.
The comment made by the prosecutor invited the jury to conflate the intent to
kill with the intent to merely shoot Wadsworth in the back of the head. The
existence of an accurate statement of intent as to murder in the jury
instructions does not by itself persuade us that the jury would have been able
to parse the difference between the instructions and the comment sufficiently
to realize the prosecutor had erred in his closing. We conclude, therefore, that
the comment had a reasonable probability of at least confusing, and at worst
misleading, the jury.
Proceeding to the remaining elements of the four-part test, the statement
was isolated, constituting only a small portion—roughly ten seconds—of the
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Commonwealth’s hour-long closing. The third element, whether the comment
was deliberate, cuts in favor of Ganther. We presume that the Commonwealth
is aware of the elements of murder and in the absence of evidence to the
contrary—an attempt to correct himself, for example—the comment appears to
have been deliberately placed before the jury.
Finally, the evidence against Ganther was strong. No party contests that
Ganther shot Wadsworth in the back of the head. The act of shooting the
victim in the back of the head was itself compelling evidence that Ganther’s
intent was not merely to injure Wadsworth, but rather to cause his death. The
jury’s finding in accordance with this reasoning was imminently reasonable.
In sum, given the isolation of the statement and the weight of the
evidence against Ganther, the prosecutor’s misstatement does not rise to the
level of flagrancy required under Hannah. See White v. Commonwealth, 544
S.W.3d 125, 146 (Ky. 2017) (as modified) (vacated on other grounds by White v.
Kentucky, 139 S.Ct. 532 (2019)). Even though the jury was conceivably
misinformed as to the nature of the intent required to find murder, whatever
misconception existed in the minds of the jury did little to effect the outcome of
Ganther’s case. Ganther shot Wadsworth in the back of the head, an act with
very few outcomes outside causing the death of the victim. Further, we note
that, as to the murder charge, Ganther was given 20 years, the statutory
minimum for murder and the maximum for first-degree manslaughter, one of
the lesser-included offenses presented to the jury. As a result, whether
Ganther received a harsher sentence upon conviction of the more serious
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offense is unclear, another factor cutting against reversal pursuant to Young.
Accordingly, we do not believe there was a “’substantial possibility’ that the
result in the case would have been different without the error.” Brewer v.
Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006).
b. The Commonwealth’s questioning regarding Phillips was proper.
Ganther next argues that alleged improper questioning by the
Commonwealth and misleading testimony from a witness had a prejudicial
impact on his conviction and sentencing. Specifically, Ganther argues that
questioning by the Commonwealth as to whether Ganther acted under orders
from Phillips—the individual in Detroit who provided drugs for Ganther and the
victim—to kill Wadsworth diminished the likelihood of the jury finding Ganther
guilty of the lesser offense of manslaughter. After thorough review of the
record, we do not find error, much less palpable error.
Ganther directs us to two instances in support of his argument. First, a
statement by Sergeant Tyson Carroll elicited during Ganther’s cross-
examination:
Defense: In the course of talking to him about the event, you tell
him, something to the effect of, “after it happened, I bet you were
scared as hell afterwards.”
Sgt. Carroll: [nods head “yes”].
Defense: Do you believe that to be true?
Sgt. Carroll: I can’t imagine a scenario where if anybody is in a
traumatic situation, intentionally or otherwise, and they shoot
somebody, that they wouldn’t be scared. Even a seasoned
hitman’s going to have some fear running through them.
Defense: He’s not charged with being that.
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Sgt. Carroll: He’s not. He’s not charged with being a hitman.
Second, Ganther directs us to questioning from the Commonwealth
during its cross-examination of Ganther:
Commonwealth: From your testimony here today, it sounds like
Gaige [Phillips] calls the shots in the drug dealing. You’re part of
the drug dealing business, is that correct?
Ganther: Yes.
Commonwealth: Did he tell you to get rid of Jerome [Wadsworth]?
Ganther: No, he didn’t.
Commonwealth: That was your decision, wasn’t it?
Ganther: What are you asking?
Commonwealth: It was your decision to kill Jerome? Nobody told
you to do that? It was your choice, right?
Ganther: Yes.
We can discern no error in either instance. Sgt. Carroll’s testimony was
perhaps intemperate and speculative, but it did not result in a fundamental
unfairness that would merit reversal. His intent was to underscore the amount
of fear a person would feel after taking the life of another. Further, Sgt.
Carroll’s non-responsive comment arose from a question posed by defense
counsel and to which defense counsel apparently felt could be cured by
subsequent clarification rather than an objection. Given the isolated nature of
the comment and the subsequent clarifying questioning by Ganther, no
palpable error resulted from the statement.
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The Commonwealth’s questioning of Ganther similarly did not result in
palpable error. Although we have cautioned litigators against asking questions
that lack a factual predicate, Pace v. Commonwealth, 636 S.W.2d 887, 889 (Ky.
1982),4 the questioning in this case was not mere speculation by the
prosecutor, but rather flowed from the contextual facts of the case adduced at
trial. Little dispute exists that Phillips was the orchestrator of the drug dealing
operation, having provided the drugs to Wadsworth and sent him to Lexington
to pass along to Ganther for sale. Given the existence of this arrangement, the
prosecutor’s question as to Phillips’ role, or lack of role, in Wadsworth’s death
was not the sort of “out of the blue” question we disapproved of in Pace. See,
e.g., Owsley v. Commonwealth, 743 S.W.2d 408, 409 (Ky. App. 1987).
Ultimately, the question was useful for establishing Ganther’s singular
involvement in the shooting of Wadsworth and Ganther’s responses reinforced
his narrative of the events that the killing was the unfortunate result of
Wadsworth’s attempt to rob him. The questions, at most, were unnecessary,
but they were not error.
In sum, the evidence does not reflect that either line of questioning or
testimony had an impact on the conviction and sentencing of Ganther. Cross-
examination is the “greatest legal engine ever invented for the discovery of
truth,”5 and here, the respective cross-examinations and the responses elicited
4 Overruled on other grounds by Commonwealth v. Harrell, 3 S.W.3d 349 (Ky.
1999).
5 5 John Henry Wigmore, Evidence in Trials at Common Law § 1367 at 32
(James H. Chabourn ed. 1974).
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thereto served that truth-finding function, even if the questions or responses
went beyond that which was strictly necessary. Because neither Sgt. Carroll’s
response nor the Commonwealth’s questions rose to the level of palpable error,
Ganther is not entitled to relief.
IV. Conclusion
For the foregoing reasons, the judgment of the Fayette Circuit Court is
affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Kayley Valentien Barnes
Jennifer Leigh Wade
Department of Public Advocacy
COUNSEL FOR APPELLEE:
Daniel J. Cameron
Attorney General of Kentucky
Stephanie Lynne McKeehan
Assistant Attorney General
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