David Albert Soloway v. Commonwealth of Kentucky

lMPO_RTANT NOT|CE
NOT TO BE PUBL|SHED OP|N|ON
THls oplNloN ls DEslGNATED "NoT fo BE PuBLlsHED."
PuRsuANT To THE RuLEs oF clvlL PRocEDuRE
PRoMuLGATED BY THE suPREME couRT, cR 76.28(4)(€),
THls 0PlNloN ls NoT To BE PuBLlsHEn AND sHALL NoT BE
clTED oR..usED As BlNDlNG PREcEDENT lN ANY oTHER
cAsE lN ANY_couRT oF THls sTATE; HoWEvER,
uNPuBLlsHED l555 S.W.2d 241, 243 (Ky. 1977).
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event, we only reverse if misconduct is flagrant7 Flagrant misconduct requires
evaluating the following four factors: (1] whether that 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.
in terms of Soloway’s questioning on cross-examination, the
Commonwealth correctly identifies that this line of questioning centered on his
pre-arrest silence. And sure enough, this silence can be appropriately used by
the prosecution in certain circumstances8 Though it may not be used to prove
substantive guilt, the prosecution may use a defendant’s pre-arrest silence for
impeachment purposes.9 The Commonwealth accordingly asserts that this line
of questioning is used to undermine Soloway’s alleged willingness to participate
in the criminal investigation. And in this instance, we agree. Defense counsel
did not object to this line of questioning, and we are persuaded that the
prosecution only explored this issue after Soloway volunteered a willingness to
talk to police before hi``s arrest. So we see no error during cross-examination
As for the Commonwealth’s closing argument, that is a different story.
We hold that these statements, despite the considerable leeway we allow for
closing arguments, are inappropriate commentary on Soloway’s assertion of his
constitutional right to refrain from self-incrimination. To the extent the
7 Hannah v. C,``omm_omuec¢'.lth7 306 S.W.3d 509, 518 (Ky. 2010].
8 see Jenkin,s v. Anderson, 447 U.s. 23 1, 239 (1930).
9 see id. see also combs v. coyze, 205 F.ed 269, 283 (61;11 cir. 2000).
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Commonwealth merely commented on Soloway’s own testimony on the stand
`` relating to his pre-arrest silence, we find no error; the prosecution is certainly
free to comment on testimony and the weight of the evidence.10 But when the
argument continued to equate his refusal, even after larrest, to speak to law ``
enforcement,. to behaviors inconsistent with those of an “innocent man,” the
Commonwealth flagrantly abused its authority in prosecuting the case. We
consider an accused’s right against self-incrimination sacred. And we take any
assault on invocation of this right seriously. The prosecutor erred significantly
in making these statements that misled the jury on the nature of Soloway’s
silence, and deeply prejudiced his defense. Despite Soloway failing to preserve
this specific issue in the record, because this misconduct is flagrant and
palpable, we have no choice other than to overturn the judgment below and
remand for new trial.
As part of his appeal, Soloway raised a number of oth_er issues. Because
those claims are capable of repetition in the event of retrial, we now consider
those issues in turn. l
B. The Trial Court Did Not En'oneously Allow Joyce to Testify Outside
the Courtroom.
Soloway contends that the trial court abridged his right to confront
witnesses guaranteed by the ``Fifth, Sixth, and Fourteenth Amendments to the
United States Constitution and Sections One, Two, and Eleven of the Kentucky
Constitution, by allowing Joyce’s testimony to be introduced by closed-circuit
19 See Mullins v. Commonwealth, 350 S.W.3d 434, 439 (Ky. 2011].
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television rather than live testimony in open court. The trial court issued the
same ruling with respect to Joyce’s brother’s testimony as well. At trial,
Soloway objected to the Commonwealth’s motion to allow the closed-circuit
testimony, which the trial court overruled.
n The decision to allow testimony through closed-circuit television is
governed by Kentucky Revised Statutes (KRS) 421.350. The statute applies
only to criminal prosecutions when the alleged crime involves a child twelve
years old or younger.11 Upon motion by any party and after finding a
f‘compelling need,” the trial court may order the child’s testimony be taken in
another room and televised through closed-circuit television, with only the
attorneys, people necessary to operate equipment, and those necessary to the
child’s welfare present12 The statute defines compelling need as a “substantial
probability the child would be unable to reasonably communicate because of
serious emotional distress produced by the defendant’s presence.”13 And we
have articulated that the proper standard of reviewing the trial court’s
determination is the abuse-of-discretion standard.14 So we will not overrule the
lower court’s decision absent a finding that the ruling was “arbitrary,
unreasonable, unfair, or unsupported by sound legal -principles.”15
11 st 421.350(1).
12 st 421.350(2).
13 KRS 421.350(5).
14 See Kurtz v. Commonwealth, 172 S.W.3d 409, 41 1 (Ky. 2005}.
15 Commonwealth v. English, 993 S.W..’Zd 941, 945 (Ky. 1999].
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In Commonwealth 1). Willis, we outlined some non-exhaustive factors to
aid trial courts in making this “compelling need” determination16 We said that
“the age and demeanor of the child witness, the nature of the offense, and the
likely impact of testimony in court or facing the defendant” are relevant ``
considerations in determining compelling need.17 At the time of'the offense,
Joyce was seven years old; she was only eight at the time of her testimony. The
acts Soloway allegedly performed on Joyce were intensely personal. The _trial
court noted that after being informed of the number of other people that would
be in the courtroom with her, Joyce bowed her head and reiterated that she did
not Want to see Soloway. l y
Soloway contends that this compelling need was not satisfied. He argues
that Joyce’s reluctance to testify is more related to the “stress” of testimony
than any true mental anguish.l*3 He further contends that his presence in the
courtroom had no bearing on her actual testimony; he highlights her
trepidation recounting the full account of her private interactions with Soloway
with the‘child therapist in a non-courtroom setting. This, he articulates, shows
that his presence, while perhaps upsetting Joyce, would not affect her actual
testimony.
16 716 s.w.2d 224 (Ky. 1986).
17 Id.
18 See George v.. Commonwealth 885 S.W.2d 938, 941 (Ky. 1994) [“The
Kentucky statute does not provide a blanket process for taking the testimony of every
child witness by TV simply because testifying may be stressful.”].
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n On its face, we cannot say the trial court committed reversible error.
From all we can gather, ample evidence supports the finding a compelling need
existed for Joyce to testify by closed-circuit television, We recognize that``the
United States Supreme Court has taken on a more robust interpretation of the
Confrontation t')lause in recent case law, holding that defendants enjoy
expansive rights under the Sixth Amendment’s protections And no doubt that
as this constitutional jurisprudence develops, statutes like KRS 421.350 will
present more and more difficult decisions in cases of this kind. But for now, we
are confident lthe trial court did not abuse its discretion in allowing Joyce to
testify remotely.'
Though we do not consider this reversible error, we must also stress the
importance of following the statutory guidelines in the event of retrial, Years _
have passed since the original trial and, in turn, both Joyce and her brother
have aged and matured during that time. The trial court should therefore
n evaluate each child separately to determine whether the need for closed-circuit
testimony still exists and to make separate findings for each witness in
accordance with the strictures of the statute.
C. Other Instances of Prosecutorial Misconduct.
Soloway’s final issue on review centers on_va_rious statements and
actions that occurred dudn§closing-Mguments. He contends that the
Commonwealth’s characterization of the events as “escalating"’ in intensity
amounted to prosecutorial indiscretion. Because Joyce could not identify the
order in which the acts took place, it was impossible to determine whether
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f
Soloway’s behavior escalated. And accordingly, the trial court ordered the
prosecution to avoid characterizing his behavior in those terms. Additionally,
Soloway also takes issue with the prosecution’s emotional display during
closing arguments.
His various additional claims of prosecutorial misconduct are preserved
for review while others remain unpreserved. We will address each in turn.
z 1.`` The Commonwealth’s characterization that Soloway’s behavior
was “escalating.”
This first instance of alleged misconduct, and the one in which Soloway
is most offended, remains unpreserved. The trial court did instruct the
Commonwealth to avoid making statements characterizing Soloway’s sexual
acts as “escalating,” but defense counsel failed to object to the
Commonwealth’s invocation of this phrase during closing arguments. So we
will treat this issue as unpreserved, and we will only reverse upon finding that
this alleged misconduct was flagrant
It appears the use of “escalating” was an- isolated incident in the closing
statement The record indicates that the Commonwealth only used the phrase
once during the course of its argument We fare unpersuaded that the use of
this phrase was part of some attempt t'o mislead the jury or mischaracterize the
_ nature of Soloway’s actions. And we agree with the Commonwealth that proof
of Soloway’s guilt was strong. The Commonwealth should have, of course,
heeded the trial court’s order to avoid labeling this conduct as escalating
behavior, and the prosecution doubtlessly erred to do so anyway. But
considering all of the factors before us,``l we cannot say this mistake was
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reversible error as flagrant prosecutorial misconduct So we agree with the trial
court’s ruling, though we caution the Commonwealth t_o heed the trial court’s
instructions regarding permissible statements in the event of retrial.
2. The Commonwealth’s display of emotion.
Soloway also critiques the prosecutor’s emotive actions during closing
arguments as she recounted the acts Soloway was accused of committing
According to Soloway, the prosecutor became very emotional during her closing
argument crying when talking about the fact that [Joyce] was seven years old.
Somewhat relatedly, he also takes issue With the prosecution’s language in
describing the acts underlying his criminal accusations This issue was
properly preserved for appeal.
In Byrd v. Commonwealth, we recognized that ‘f’l``rials are conducted by
humans, who often show indignation, anger or sadness. This does not mean
that real emotion is misconduct.”19 Here the allegedly criminal acts giving rise l
to this case are undoubtedly tragic-a seven year old girl was molested and
abused in a disturbing manner. We cannot say it is misconduct for a
prosecuting attorney to become overcome with emotion when attempting to
recount these incidents to a jury. And the record appears clear that the
prosecutor’s tears were not shed to inflame the passions of the jury or
deliberately to impact the outcome of the case but were the result,of an-
uncontrollable surge of emotion in th_e midst of a multi-day jury trial. In fact,-
19 825 s.w.2d 272 (Ky. 1992).
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the prosecutor even momentarily paused to regain her composure before
continuing the argument There was no prosecutorial misconduct by this
display of emotion.
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3. The Commonwealth’s description of the physical acts.
As for the prosecution’s vivid description of the acts themselves, we
likewise see no error. The prosecution described the nature of the offenses as
folloWs:
I-le’s not putting his penis in her anus or putting it in her vagina.
There’s no allegation of that What he’s physically doing to her
doesn’t hurt her. That’s why she’s not telling. It’s not hurting her.
There’s no bleeding. There’s no ripping, there’s no tearing.
Soloway objected to this language and was overruled. The Commonwealth
continued:
So there’s no ripping, there’s no tearing, there’s no bruising,
there’s nothing like that. ``
Soloway argues that this language was overly graphic and unduly prejudicial to
his defense. We-disagree.
One of Soloway’s defenses at trial was the lack of physical evidence
proving he committed the crimes. So naturally, in response to that argument
the Commonwealth is within its right to distinguish the particular crimes
before the jury and explain why Soloway may still be found guilty without the
physical evidence acquired in a host of other sex crimes. ln Muliins v.
Commonwealth, we reaffirmed the “longstanding rule...that counsel may
comment and make all legitimate inferences that can reasonably be drawn
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from the evidence presented at trial.”20 Prosecutors a_re extended considerable
leeway in conducting a closing argument She may “comment on tactics, may
comment o'n evidence, and may comment as to the falsity of a defense
position.”21 We cannot review this statement in a vacuum_it must be
evaluated within the context of the argument as a Whole. However disturbing
this language may seem to an average listener, we agree With the trial court
that it is not overly prejudicial and did not undermine Soloway’s right to a fair
trial.
rrr. . ' coNcLUsroN.
Because we hole that the Commonwealth committed prosecutorial
misconduct in its commentary relating to Soloway’s post-arrest silence, we
reverse the trial court judgment and remand for new trial.
All sitting. All concur.
20 350 S.W.3d 434, 439 (Ky. 2011).
21 Slaughter v. Commonwealth, 744 S.W.2d 407, 412 (Ky. 1987}. _
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coUNsEL FoR APPELLANT:
Shannonl Renee Dupree
``Assistant Public Adv,ocate
COUNSEL FOR APPELLEE:
Andy Beshear
Attorney General of Kentucky
Joseph Todd Henning
' Assistant Attorney General
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