Gregory Dean Roe v. Commonwealth of Kentucky

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RENDERED: SEPTEMBER 22, 2022
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2020-SC-0150-MR
GREGORY DEAN ROE APPELLANT
V. ON APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. TRAVIS, JUDGE
NO. 18-CR-01472
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
In a case involving two separate incidents and victims, Gregory Dean Roe
was convicted at a jury trial in Fayette Circuit Court of two counts each of
rape, sodomy, kidnapping, assault, and terroristic threatening, and a single
count of tampering with physical evidence. He was sentenced to a total of forty
years’ imprisonment and appeals from the trial court’s judgment to this Court
as a matter of right.1 After a careful review, we affirm.
N. B. testified she had known Roe for twenty years. He was a friend of
her boyfriend, Mark Chaffins, and she had previously taken drugs with Roe.
On the evening of June 3, 2018, she was walking to a nearby Thornton’s
1 Ky. Const. § 100(2)(b).
convenience store located on 7th Street with her cousin, who was a prostitute.
A pickup truck pulled up beside them. Roe was seated in the passenger seat.
He asked about her boyfriend, whom she said was in jail, then asked if she
wanted to get high. She declined but he responded by grabbing her arm and
pulling her into the truck. He seemed to be holding a pocketknife. The truck
drove away, eventually turning into an alley where she and Roe exited. They
were arguing but she did not scream for help. After the driver of the truck
drove off, they walked up a hill to a parking lot behind a nearby business,
Powers Transmission on Winchester Road, where Roe had indicated his
girlfriend’s inoperable car was parked.
N.B. testified Roe’s demeanor suddenly changed. He grabbed her arm
and pulled her into the back seat of a gray Nissan Maxima, telling her to “[t]ake
off your clothes.” He pulled down his pants and made her perform oral sex.
When he reached to take mace out of the glove compartment, his elbow hit the
left side of her eye causing her nose to bleed. He performed oral sex on her,
penetrated her vagina with his hands and penis, and touched her anus. Roe’s
actions continued for hours, all the while he continued to brandish his knife.
On a few occasions, Roe let N.B. step naked next to the vehicle’s back door to
urinate. When she tried to break free and call for help, he grabbed her hair
and pulled her back into the parked car. She feared being stabbed. Finally,
she broke free and ran to the sidewalk in front of the transmission shop. Roe
got her clothes and flip flops, ran to where she was standing, spit in her face,
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and threw the items at her, shouting, “Here bitch. Go tell your daddy. Go tell
Mark.” She put on her clothes and ran home.
Upon arriving at her residence, N.B. told her father to call 911 because
she had been kidnapped and raped. Her father testified another female had
helped his daughter to their house. A short while later, at the University of
Kentucky Hospital, a sexual assault nurse examiner (SANE) used a sexual
assault kit to collect evidence.
Roe’s version was markedly different. He testified he and N.B. had
engaged in consensual sex intermittently for sixteen years, including ten times
for money. On the night of June 3, 2018, he had purchased some cocaine. An
unnamed man with a truck then agreed to drive him to Powers Transmission
for $5. While the two men were en route to Powers Transmission, Roe
encountered N.B. and two other girls at a street corner. N.B. yelled for Roe to
stop and asked where he was going. He told her he was working security at
Powers Transmission. N.B. asked if she could join him and whether he had
anything. He advised he had some drugs and a little money but, as in the
past, expected a sexual favor in return. N.B. then got into the truck and
accompanied Roe to the transmission shop. After being dropped off, the two
walked up a hill to a Nissan automobile parked in the rear lot of the business.
They both climbed into the back seat of the car where they smoked crack
cocaine and she used heroin. N.B. then offered several favors for $80, but he
counteroffered with $30 plus some drugs. She agreed and the two engaged in
consensual, contractual oral sex. He denied any kind of vaginal or anal sex,
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nor touching her private areas. After thirty-five minutes, N.B. said she had
been there too long, her boyfriend was going to get mad, and she had to go.
She then ran off. Roe watched her until she got about two and a half blocks
from her house. Fifteen minutes later, Roe said N.B. came back with two black
men and demanded $75. When Roe refused, N.B. swung a metal object at him
but he was able to duck to avoid the blow. Roe struck N.B. with his palm and
produced pepper spray to defend himself. The two men intervened, telling him
not to spray them. They told N.B. to leave. As the three departed, N.B. told
Roe he was going to jail. He responded by threatening to call the police, which
he did. When the police arrived at the lot, Roe did not tell them about the oral
sex, because he did not want his fiancée to find out.
S.K. alleged she was raped on September 7, 2018. She was a self-
professed drug addict who drank. Her now-deceased roommate, Robin Rose,
was an alcoholic. That evening, after using drugs and alcohol, the two women
decided to walk to a nearby Thornton’s convenience store. The business was
located about one mile from Powers Transmission. As they were walking, S.K.
testified a man pulled up on a moped and asked if the two women wanted to
smoke crack cocaine and get high. S.K. responded affirmatively. The man
identified himself as “Greg,” and S.K. subsequently picked him out of a police
photo line-up, identifying him as Roe. S.K. and her roommate invited Roe to
their residence, but he declined. Instead, he insisted the three proceed to a
location up the road.
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Rose continued to walk toward Thornton’s, but S.K. got on the back of
the moped, seated behind Roe. She quickly became scared and wanted to get
off after he ran some traffic signs or lights, but the two ultimately arrived at an
alley located behind Powers Transmission. Roe drove the moped up a hill,
stopping near some vehicles parked in the rear lot. Roe told her he had left his
wallet in one of the cars. He then got into a sports utility vehicle, grabbed what
looked like a crack pipe, lit it, and they both smoked its contents. When she
joined him, she immediately realized the substance in the pipe was not crack.
S.K. was seated beside Roe in the back seat of the vehicle with her feet still
touching the ground outside of the vehicle. When she tried to pull away and
stand up, Roe pulled her back into the car by her ponytail and began punching
her head, shouting, “You crack whores and prostitutes think you’re just going
to get free drink and drugs off of everybody. Well, it’s not going to be me
anymore, and I’m not putting up with it. You are going to pay for yours today,
whore.”
Roe then told S.K. to get naked as he opened a knife and demanded oral
sex. He said, “If you bite me, I will cut you.” S.K. took her dentures out, and
Roe made her perform oral sex several times in addition to putting his fingers
inside her vagina and anus. Afterward, Roe opened a beer, poured some for
S.K., and started to relax a bit before laying the knife down. S.K. grabbed the
knife, jumped out of the back seat, and threw the knife under another vehicle.
Roe caught her, beat her, and said, “If you just get dressed right now, I’ll give
you $100, and you won’t have to say anything happened right now.” S.K.
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broke away and ran naked to a nearby Speedway convenience store. She had
noticeable bruising on her face and a man called 911. Even so, she refused
medical treatment and examination.
Again, Roe’s version of the evening’s events differed significantly. He
testified he had purchased $50 of crack cocaine and a $5 scouring pad for use
in smoking crack. When he stopped his moped to pack his cigarettes, two
females ran over from a nearby Thornton’s convenience store asking for a
cigarette. S.K. asked, “You looking?” He replied, “Well if it looks something
like you, I might be.” S.K. then pulled up her long summer dress. She was not
wearing any underwear and offered, “You looking for something like this? For
$100, me and my girlfriend will both do you.” Roe replied he had only $50,
was not looking for sex, but might be interested in oral sex. S.K. got on the
back of his moped and the two left together, leaving Rose behind.
Roe and S.K. proceeded on the moped to Powers Transmission, where he
took out his knife, cut the scouring pad, and tossed his knife under a vehicle.
Roe then climbed into the driver’s side back seat of a Nissan belonging to his
girlfriend. S.K. walked to the other side, sat down beside him, and they
smoked some crack. At some point, Roe pulled down his pants and handed
S.K. $40. S.K. took out her dentures and engaged in oral sex for approximately
forty seconds. At that point, she pulled out a needle from her breasts and
injected herself with what she said was crystal meth. She then took another
hit from the crack pipe before yelling, “Ahhhh, I’ve got bugs on me. I’ve got
bugs on me.” She thereupon jumped out of the parked vehicle, fell, ran down
6
the hill, and turned right before he lost sight of her. He had no further contact
with her that night. He left five to ten minutes later, throwing away S.K.’s
dentures because he did not want his fiancé to find them in her car.
Three months later, S.K. reported the rape, and police found the knife
under a vehicle still parked in the transmission shop’s back lot. Roe was
arrested on charges from both incidents.
Prior to trial, the Commonwealth’s motion to introduce evidence of Roe’s
alleged attempted sexual attack on a third victim, A.N., was granted. At trial,
Officer Alex Holland testified he was dispatched to a Speedway on Winchester
Road on May 27, 2018, eight days before N.B.’s rape. A.N. reported she was
assaulted behind Powers Transmission but escaped to seek help at the
Speedway. After Officer Holland arrived, he asked to be taken to the location of
the assault. A.N. took him to a gray Nissan Maxima parked behind Powers
Transmission. It was the same vehicle N.B. described when she reported her
assault the next week. Roe was on the scene when Officer Holland and A.N.
arrived. In his own defense, Roe told Officer Holland that he had previously
confronted A.N. and two black males and that one of the men had stuck a gun
in Roe’s face. Officer Holland testified Roe told a similar story about two black
males the next week during the investigation of the incident with N.B.
When Roe presented trial testimony inconsistent with his prior
statements, the Commonwealth called Ben Coolbear, the foreman of the grand
jury, for the purpose of impeaching Roe with his own grand jury testimony.
Coolbear indicated the grand jury had heard testimony from Roe about the
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incidents involving both N.B. and S.K. The Commonwealth then played an
audio recording of Roe’s grand jury testimony, which Coolbear testified was a
fair and accurate representation of his testimony. Coolbear stated that after
hearing other testimony, the grand jury indicted Roe relative to both incidents.
After hearing all the evidence, the jury found Roe guilty of all charges. It
recommended a sentence of twenty years on each count of rape, kidnapping,
and sodomy, five years on tampering, and twelve months on the remaining
charges. The jury recommended the sentence on one count of rape run
consecutive to the other, with all the remaining sentences to run concurrently,
for a total of forty years’ imprisonment. The trial court imposed the
recommended sentence. This appeal followed.
Roe alleges five errors in seeking reversal. First, he contends the trial
court erred by failing to enter a directed verdict on the kidnapping charges in
accordance with the kidnapping exemption statute.2 Second, he argues the
trial court erred in failing to enter a directed verdict on the rape and sodomy
charges. Third, he alleges the trial court erred in allowing the Commonwealth
to present KRE 404(b)3 evidence. Fourth, he contends the trial court erred in
allowing the grand jury foreman to testify. Fifth and finally, he avers improper
2 Kentucky Revised Statutes (KRS) 509.050.
3 Kentucky Rules of Evidence (KRE) 404(b) provides evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a person in order to show
action in conformity therewith but may be admissible if offered for some other
purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
8
comments and questioning by the Commonwealth were substantially
prejudicial and denied him due process.
Roe first argues he should have been granted directed verdicts on the
kidnapping charges because of the kidnapping exemption statute, KRS
509.050. Specifically, he contends any interference with the liberty of N.B. or
S.K. occurred incidental to and contemporaneously with alleged acts of rape
and sodomy. Consequently, he believes the kidnapping charges should have
merged with the other charges.
KRS 509.050 provides, in pertinent part:
A person may not be convicted of . . . kidnapping when his
criminal purpose is the commission of an offense defined outside
this chapter and his interference with the victim's liberty occurs
immediately with and incidental to the commission of that offense,
unless the interference exceeds that which is ordinarily incident to
commission of the offense which is the objective of his criminal
purpose.
The purpose of the statutory exemption “is to prevent misuse of the
kidnapping statute to secure greater punitive sanctions for rape, robbery, and
other offenses which have as an essential or incidental element a restriction of
another’s liberty.” Gilbert v. Commonwealth, 637 S.W.2d 632, 635 (Ky. 1982).
We approach the application of the exemption statute on a case-by-case basis.
Id.Generally we have determined that if the victim of a crime is going
to be restrained of his liberty in order to facilitate its commission,
the restraint will have to be close in distance and brief in time for
the exemption to apply. Otherwise the offender will be guilty of a
kidnapping charge as well. Id. (citation and internal quotation
marks omitted).
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We apply a three-pronged test to determine whether the kidnapping
exemption statute is applicable.
First, the underlying criminal purpose must be the commission of
a crime defined outside of KRS 509. Second, the interference with
the victim's liberty must have occurred immediately with or
incidental to the commission of the underlying intended crime.
Third, the interference with the victim's liberty must not exceed
that which is ordinarily incident to the commission of the
underlying crime. All three prongs must be satisfied in order for
the exemption to apply.
Wood v. Commonwealth, 178 S.W.3d 500, 515 (Ky. 2005) (citation
omitted). The kidnapping exemption statute is to be strictly construed with the
burden upon a defendant to show that it should apply. Murphy v.
Commonwealth, 50 S.W.3d 173, 180 (Ky. 2001).
Assault and related offenses are defined in KRS Chapter 508, while sex
offenses are in KRS Chapter 510. Thus, there is no dispute the first prong is
satisfied.
Under the second prong, the interference with the liberty of N.B. and S.K.
must have been concomitant with the underlying crime. Roe restrained N.B.
and S.K. immediately with and incidental to the other crimes involved under
the facts of this case so that those other underlying crimes could be committed.
The two women were restrained by force when Roe assaulted them and by
implied force when he threatened them with a knife. Further, “[t]he restraint
was ‘close in distance and brief in time,’ which seems to satisfy the
immediately-with-and-incidental-to requirement.” Stinnett v. Commonwealth,
364 S.W.3d 70, 78 (Ky. 2011) (quoting Timmons v. Commonwealth, 555 S.W.2d
10234, 241 (Ky. 1977) (emphasis added)). But the statute requires a third
determination.
Under the third prong, the interference with the victim’s liberty must not
go beyond “that which is ordinarily incident to commission of the offense which
is the objective of his criminal purpose,” KRS 509.050, for the exemption to
apply and preclude the kidnapping charges.
The third prong of this test presents a more nebulous
consideration . . . . However, it would appear that the drafters of
KRS 509.050 envisioned for prong three to be read in conjunction
with prong two of the test. When read together it seems evident
that the intent of the latter two prongs is to ensure that the means
of restraint effectuated in committing the underlying crime are of
such a nature that they are a part of, or incident to, the act of
committing the crime itself and, as such, temporally coincide with
the commission of the crime. If the deprivation of liberty segues
into a more pronounced, prolonged, or excessive detainment, then
such restraint should no longer be within the confines of the
exemption statute and the accused should be held separately
accountable for those actions. See Murphy v. Commonwealth, 50
S.W.3d 173 (Ky. 2001) (restraint of 10 hours exceeded that
necessary for defendants to commit burglary); see, e.g., Griffin v.
Commonwealth, 576 S.W.2d 514 (Ky. 1978) (restraint of victim one
and a half hours after victim dragged from vehicle exceeded what
was ordinarily incident to commit sodomy).
Hatfield v. Commonwealth, 250 S.W.3d 590, 600 (Ky. 2008).
In Stinnett, evidence showed the defendant had multiple intents. This
Court noted, “[i]n analyzing application of the exemption, a defendant’s actions
will define whether the exemption applies, not his intentions.” 364 S.W.3d at
79. We held a trial court, on a case by case basis, “must actually apply the
exemption statute to determine whether the restraint that was a part of the
other crime . . . was such that it exceeded the restraint necessary to commit
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the other crime.” Id. at 77. We ultimately held Stinnett “could have killed [the
victim] without taking an extended time to terrorize her. . . . Appellant engaged
in substantial detours from his other crime—the ultimately deadly assault—to
humiliate and degrade his victim.” Id. at 78. Thus, there was sufficient
evidence to support charges for both kidnapping and murder.
We turn now to N.B.’s encounter with Roe. He transported her to the
crime scene against her will, both by physical force and by implying he had a
knife. The restraint of the victim for hours, or “hours and hours” as N.B.
testified, interfered with her liberty and exceeded the scope of what was
ordinarily incident to commit the underlying crime, making the kidnapping
exemption statute inapplicable. Even though the exact timeline is uncertain,
the restraint of N.B. was somewhere between the ten hours the victim was
restrained in Murphy, 50 S.W.3d 173, and the one and a half hours the victim
was restrained in Griffin, 576 S.W.2d 514.
Roe had multiple intents regarding his plans with N.B. N.B. was forcibly
restrained before being transported to Powers Transmission. Roe drank and
used drugs with N.B. while she was not free to leave. The jury also viewed
photographic evidence of a battered N.B. who had a fractured nose, a black
eye, and bruises and swelling on both sides of her head. The partying and
assault were detours from the underlying crimes of rape and sodomy. Thus,
Roe was not entitled to application of the kidnapping exemption statute.
Turning next to S.K.’s encounter with Roe, she voluntarily got on the
back of his moped to go with him to get high. When Roe lit the crack pipe
12
inside the vehicle at Powers Transmission, S.K. testified she immediately
realized it was not crack and attempted to leave the crime scene. At that point
Roe grabbed her hair, pulled her back into the vehicle against her will, beat
her, and brandished his knife, thereby restraining her by express or implied
force for the rest of the encounter.
When the prosecutor asked what went through S.K.’s head, S.K.
answered:
He had beat my head the whole time I was in that car, the whole
time I was in that car, pretty much. I didn’t know if he was trying
to kill me, or he’s just going to beat me up, or what. I mean there
never was no intent. The intent was just to go party, you know?
S.K. later testified she escaped when Roe started to relax a little bit and she
saw her chance to escape, running naked to a convenience store.
As the perpetrator did in Stinnett, Roe even spoke about forcing S.K. to
make some real money, presumably through prostitution. With Roe’s remarks
about no longer putting up with “you crack whores and prostitutes” in
conjunction with his extended beating of her, the drug use, and conversations
with S.K., her detention was clearly longer than necessary to accomplish rape
and sodomy. Roe took substantial detours from the crimes of rape and sodomy
to assault, humiliate, and degrade S.K. Notably, one of the elements that can
constitute kidnapping is when the perpetrator’s intent is “[t]o inflict bodily
injury or to terrorize the victim.” KRS 509.040(1)(c). Based on the foregoing,
evidence existed to support kidnapping in addition to the other crimes. Again,
Roe was not entitled to the benefit of the kidnapping exemption statute.
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Second, Roe argues the trial court erred in failing to enter a directed
verdict on the rape and sodomy charges. He contends no underlying facts
support he sexually touched or engaged in sexual intercourse or deviate sexual
intercourse by forcible compulsion with anyone, and inferences suggested by
the Commonwealth are unsupported by the record. He further argues S.K.’s
refusal of a SANE examination and attempt to run when arrested on a warrant
days before her testimony undermines her credibility.
On motion for directed verdict, the trial court must draw all fair
and reasonable inferences from the evidence in favor of the
Commonwealth. If the 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 purpose 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.
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.
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). “It should be
remembered that the trial court is certainly authorized to direct a verdict for
the defendant if the prosecution produces no more than a mere scintilla of
evidence. Obviously, there must be evidence of substance.” Commonwealth v.
Sawhill, 660 S.W.2d 3, 5 (Ky. 1983).
Roe’s attack on the weight and credibility of the witnesses does not form
a basis for granting a directed verdict. Both N.B. and S.K. testified Roe forced
each of them to perform oral sex and penetrated their vaginas and anuses with
his fingers, penis, or both. Their testimony satisfied all the elements of first-
14
degree rape and first-degree sodomy. Roe admitted to having sexual
encounters with both women. In N.B.’s case, the SANE examination collected
evidence which indicated a presumptively positive test result for N.B.’s saliva
on Roe’s penis. Both women provided forceful testimony with similarities in
their stories although they had not met.
“[T]he Commonwealth need only produce more than a ‘mere scintilla’ of
evidence to defeat a defendant's motion for a directed verdict.” Commonwealth
v. James, 586 S.W.3d 717, 721 (Ky. 2019) (quoting Sawhill, 660 S.W.2d at 5).
Here, there was evidence of substance, and, under the evidence as a whole, it
was not clearly unreasonable for a jury to find guilt. Benham, 186 S.W.2d at
187.
Third, Roe argues the trial court erred in allowing the Commonwealth to
present KRE 404(b) evidence regarding a prior act between Roe and another
female, A.N., on May 27, 2018. When the Commonwealth filed a motion to
introduce evidence of Roe’s alleged attempted “sexual assault” on A.N., it
alleged Roe saw A.N. in the parking lot of Powers Transmissions, grabbed her,
forcibly pulled her to the same gray car in which N.B. was attacked one week
later, and assaulted her before she was able to escape and run to the Speedway
convenience store. Although Roe was never charged with any crimes
perpetrated upon A.N., the Commonwealth argued this prior act was
admissible and relevant. Particularly, the Commonwealth asserted the
evidence from the prior incident with A.N. was indicative of Roe’s criminal
pattern or “signature crime” and established his intent and identity.
15
Roe objected but failed to state his objection with any particularity and
filed no written response. Instead, Roe’s counsel merely affirmed the defense
was familiar with how KRE 404(b) works and asked that their objection be
noted on the record absent further explanation. The trial judge acknowledged
Roe’s objection and, “to the extent” an objection was being made, overruled it.
Roe now complains the Commonwealth’s motion to allow KRE 404(b)
evidence regarding his purported prior “sexual assault” of A.N. failed to
mention use of a brick though Officer Holland thereafter testified at trial that
his investigation of the earlier occurrence revealed A.N.’s assertion of Roe
having assaulted her using a brick. Though not raised at trial, Roe complains
the Commonwealth’s motion referenced a “sexual assault” when no such
evidence was proffered at trial. He further complains A.N.’s alleged assault
involved an additional element—use of a brick—which was not alleged in
relation to his assault charges relating to N.B. and S.K.
Under KRE 103(a)(1), to challenge a ruling admitting evidence as
erroneous, a timely made objection or motion to strike must appear in the
record, “stating the specific ground of objection, if the specific ground was not
apparent from the context.” “[A]ppellants will not be permitted to feed one can
of worms to the trial judge and another to the appellate court.” Kennedy v.
Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976), overruled on other grounds by
Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 2010). In other words,
[a]n objection made in the trial court will not be treated in the
appellate court as raising any question for review which is not
within the scope of the objection as made, both as to the matter
objected to and as to the grounds of the objection, so that the
16
question may be fairly held to have been brought to the attention
of the trial court.
Richardson v. Commonwealth, 483 S.W.2d 105, 106 (Ky. 1972) (internal
quotation marks and citations omitted). Although Roe objected to the
introduction of the KRE 404(b) evidence regarding A.N., the record is devoid of
any specific ground for the objection. Roe’s argument on appeal does not
mirror what was asserted to the trial court. Thus, the argument will be treated
in this appeal as unpreserved.
“Ordinarily, when an issue is unpreserved at the trial court, this Court
will not review it unless a request for palpable error review under RCr4 10.26 is
made and briefed by the appellant.” Webster v. Commonwealth, 438 S.W.3d
321, 325 (Ky. 2014) (citing Shepard v. Commonwealth, 251 S.W.3d 309, 316
(Ky. 2008)). Roe did not request review for palpable error. Therefore, further
analysis of his argument is unwarranted.
Fourth, Roe argues the trial court committed reversible error when it
allowed the grand jury foreman to testify for the Commonwealth. He contends
the grand jury proceedings should have been kept secret, the jury improperly
heard the grand jury had indicted Roe, and “it is always improper for a
prosecutor to suggest that a defendant is guilty merely because he is being
prosecuted or has been indicted.” United States v. Bess, 593 F.2d 749, 754
(6th Cir. 1979).
4 Kentucky Rules of Criminal Procedure.
17
Roe concedes this argument is unpreserved and requests review for
palpable error under RCr 10.26. “[W]hat a palpable error analysis boils down
to is whether the reviewing court believes there is 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) (citation and internal
quotation marks omitted).
An error is palpable only if it is shocking or jurisprudentially
intolerable. In order to demonstrate an error rises to the
level of a palpable error, the party claiming palpable error
must show a probability of a different result or [an] error so
fundamental as to threaten a defendant's entitlement to due
process of law.
Allen v. Commonwealth, 286 S.W.3d 221, 226 (Ky. 2009) (internal quotation
marks and citations omitted).
Coolbear’s testimony that the grand jury indicted Roe did not affect the
fairness of the proceedings. Roe’s grand jury testimony was probative of his
credibility because it contained details either omitted or contradicted by other
statements he made to his sister on a recorded jail call, to law enforcement
investigating the case, and in testimony at trial. Further, Roe’s counsel
clarified during cross-examination that the standard to indict was only
probable cause, and the prosecutor did not say or suggest Roe was guilty
simply because he had been indicted or was being prosecuted.
While RCr 5.24 promotes the policy of keeping grand jury proceedings
and testimony secret in most instances, such secrecy is “subject to the
authority of the court at any time to direct otherwise.” RCr 5.24(1). The
general purpose for
18
keeping secret the proceedings in the grand jury room is to
insure a full and free investigation of all offenses, and that
the witnesses who appear before that body may know that
what they say will be held in confidence. 12 R. C. L. p.
1039, states the rule to be that it is the policy of the law to
require the utmost secrecy as to the grand jury's proceedings
while the grand jury is in session; but the purposes of this
policy of the law are largely accomplished, so far as concerns
the evidence adduced, after the indictment has been found
and the accused has been taken into custody and the grand
jury finally discharged. The witness has no privilege to
have his testimony treated as a confidential
communication, and his testimony may be disclosed,
whenever it becomes material to the administration of
justice.
Turk v. Martin, 232 Ky. 479, 23 S.W.2d 937, 939 (1930) (emphasis added).
Admitting Coolbear’s testimony was not improper. No palpable error occurred.
Fifth and finally, Roe argues various comments and questioning by the
Commonwealth relating to Roe’s prior silence and his opportunity to have
heard other witnesses testify prior to offering his own testimony were
substantially prejudicial and amounted to a denial of due process. Roe admits
this issue is unpreserved, and requests palpable error review.
At the start of Roe’s cross-examination, the prosecutor challenged Roe
about being “the first witness who’s had the privilege of hearing all the other
witnesses testify” and being “the first person that got to sit there and listen to
all the other witnesses testify and then . . . get to testify after all of that.” Roe
asserts this was improper because he has a right not to testify and, if he
chooses to testify, does not control the order of presentation of proof. Roe
alleges “[t]he Commonwealth made it sound like it was a strategic decision to
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wait until after everyone else testifies and then change his testimony
accordingly.”
However, other than asserting the fundamental unfairness of these
statements, Roe offers nothing of substance nor any case law in support of his
contentions. We will not search the record to construct Roe’s argument for
him, nor will this Court undergo a fishing expedition to find support for
underdeveloped arguments. “Even when briefs have been filed, a reviewing
court will generally confine itself to errors pointed out in the briefs and will not
search the record for errors.” Milby v. Mears, 580 S.W.2d 724, 727 (Ky. App.
1979). Bald assertions of error, totally lacking in support in the law or record,
are insufficient to justify relief. We discern no palpable error.
Roe further argues his silence was improperly used against him when he
was cross-examined on three separate matters, namely to confirm: he had not
told police or his sister he had ten prior sexual encounters with N.B.; he had
not mentioned he was partying and drinking with N.B.; and he “didn’t stick
around” to speak to police about the incident involving S.K. but he instead left
town. Roe argues “[t]he Commonwealth is prohibited from introducing
evidence or commenting in any manner on a defendant’s silence once that
defendant has been informed of his rights and taken into custody.” Hunt v.
Commonwealth, 304 S.W.3d 15, 35 (Ky. 2009) (citing Doyle v. Ohio, 426 U.S.
610 (1976), and Romans v. Commonwealth, 547 S.W.2d 128, 130 (Ky. 1977)).
However, we have indicated
not every isolated instance referring to post-arrest silence will be
reversible error. It is only reversible error where post-arrest silence
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is deliberately used to impeach an explanation subsequently
offered at trial or where there is a similar reason to believe the
defendant has been prejudiced by reference to the exercise of his
constitutional right.
Id. at 36. Further, the United States Supreme Court has recognized the Fifth
Amendment is not violated when a defendant testifies in his own defense and is
impeached with his prior silence, concluding a defendant was subject to cross-
examination and impeachment of his credibility just like any other witness.
Jenkins v. Anderson, 447 U.S. 231, 235-36 (1980).
Moreover, Roe never invoked his right to remain silent. Instead, he
offered numerous conflicting statements. The Commonwealth’s questions were
properly tailored to challenge Roe’s credibility and were not aimed to prejudice
him for exercising a Constitutional right. We discern no error.
Lastly, although Roe failed to object at trial, he now argues it was
improper for the prosecutor to ask him whether other witnesses were lying.
The prosecutor asked Roe if he recalled stating “there was no knife involved?
Everybody’s lying? Do you remember that?”
In Moss v. Commonwealth, 949 S.W.2d 579 (Ky. 1997), the prosecutor
badgered the defendant into answering a question regarding whether a police
officer was “lying.” This Court held “[a] witness should not be required to
characterize the testimony of another witness, particularly a well-respected
police officer, as lying.” Id. at 583. Nevertheless, the claim of error was not
preserved, and this Court declined to find palpable error.
Here, after Roe finally admitted at trial there was a knife, the prosecutor
merely asked if he remembered giving contrary prior statements and claiming
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everyone else was lying when they had asserted he had brandished a knife.
Roe was not badgered into characterizing another witness as being untruthful,
but instead was questioned regarding his own conflicting testimony. This is
substantially different from the situation presented in Moss. However, like in
Moss, Roe’s “failure to object and our failure to regard this as palpable error
precludes relief.” Id.
For the foregoing reasons, the judgment of the Fayette Circuit Court is
affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Roy A. Durham II
Assistant Public Advocate
COUNSEL FOR APPELLEE:
Daniel Cameron
Attorney General of Kentucky
Robert Baldridge
Assistant Attorney General
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