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Ross v. Commonwealth

Supreme Court of Kentucky

February 19, 2015


Released for Publication March 12, 2015.

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FOR APPELLANT: Linda Roberts Horsman, Assistant Public Advocate.

FOR APPELLEE: Jack Conway, Attorney General of Kentucky; Heather Michelle Fryman, Assistant Attorney General.

Minton, C.J.; Abramson, Cunningham, Keller, Noble, and Venters, JJ., sitting. All concur.


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A circuit court jury convicted Cole Douglas Ross of murder and first-degree arson for killing Keith Colston and burning down the trailer where he lived. The jury recommended a life sentence for each conviction to be served concurrently. The trial court accepted that recommendation and sentenced Ross accordingly. Ross appeals the resulting judgment as a matter of right.[1]

Ross raises five arguments on appeal. He claims the trial court erred by: (1) allowing the Commonwealth to use its peremptory challenges to strike female jurors over a Batson challenge; (2) admitting gruesome photographs of the victim's body depicting injuries he did not cause; (3) allowing the Commonwealth to admit a television purported to belong to Ross without first laying a proper foundation; (4) denying him access to exculpatory evidence contained in the psychotherapy records of witness Tonya Simmons, thereby limiting his ability to cross-examine her on those topics; and (5) rendering the trial fundamentally unfair due to cumulative error.

We conclude that the trial court erred in its application of Batson and impermissibly allowed the Commonwealth to use its peremptory challenges to dismiss jurors on the basis of gender. Because such an error is of constitutional and structural magnitude, we reverse Ross's convictions and remand for further proceedings. We analyze the remaining issues only insofar as they are likely to recur in the event of retrial.


Ross moved in with his friends Keith and Lisa Colston when he could no longer

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afford to maintain his residence after losing his job. The Colstons lived in an improved singlewide trailer located in Melber, Kentucky, not far from Ross's former residence. The trailer's improvements included an addition on the back of the trailer that had its own outside entrance. This addition became Ross's room.

On the day of Keith Colston's death, Ross spent the morning running errands with his former girlfriend, Tonya Simmons, and her two grandchildren. They made multiple stops in Mayfield, Kentucky, and Paducah, Kentucky, with the latest receipt showing a purchase time of 11:15 a.m. Simmons then dropped off Ross at the Colstons' trailer.

According to Simmons, Ross then asked her to buy him beer. When she returned to the trailer with the beer, which was purchased at 12:54 p.m., she parked her vehicle and approached the separate entrance into Ross's room. On her way, she noticed the trunk to Ross's car was open and linens and other of Ross's belongings were packed inside. Upon reaching the backdoor, Simmons noticed a fire inside the trailer and heard Colston screaming for help. Ross pushed Simmons away from the door and assured her he would help Colston.

Allayed by Ross's reassurances, Simmons returned to the front of the trailer. She saw Ross reach out the front door, grab two full bottles of charcoal lighter fluid from the porch, and reenter the trailer. Colston's screams for help still echoed outside, and Simmons retreated to her car in a panic to call 911 and report the trailer fire. Simmons's report of the fire came in at 1:14 p.m. Ross then emerged from the trailer, got in his car, and left the scene before emergency responders arrived. Simmons followed suit and went to the hospital because she promised to pick up her niece and sister following an outpatient procedure.

Ross's version of events is different. According to the statement Ross gave to investigators at the scene, after running errands he left the trailer to buy beer, and he did so at 1:41 p.m. He claims he had not seen Colston since eight or nine that morning, and did not find out about the fire until Lisa Colston called him. He then went to Lisa's grandmother's home to console Lisa and other family members because they had been informed of Colston's body found in the burnt remains of her trailer. Ross and Lisa later returned to the trailer to meet with investigators.

Simmons intended to contact police to explain what she witnessed at the Colstons' trailer following her niece's discharge from the hospital. But she was prevented from doing so by Ross, who appeared at Simmons's sister's house when Simmons was dropping her off. Ross followed Simmons for the rest of the day to ensure she did not contact police. Two days after the incident, the weight of what she had witnessed became too much for Simmons to handle, and she went to the hospital because of anxiety. Once there, she informed the doctor she had witnessed a murder and later gave her version of the events to the police.

Colston's body was found severely burnt, lying face up in the hallway of the trailer. It was explained at trial that this body position was inconsistent with death by smoke inhalation because most such victims are found positioned face down. The medical examiner also testified that the carbon monoxide level in Colston's body at the time of his death-14.8 percent--was too low to be fatal absent contributing circumstances. Arson investigators were able to obtain samples of the carpet and subfloor that were preserved from fire damage underneath Colston's

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body. Three of the four samples tested positive for " medium petroleum distillates." Charcoal lighter fluid is one such accelerant considered a medium petroleum distillate. On the basis of this evidence, it was concluded that Colston burned to death.

Ross was indicted for murder and first-degree arson in the aftermath of the fire. His first trial in 2011 resulted in a mistrial because of a hung jury. At this, the second trial, the jury convicted Ross of all charges and recommended a life sentence for each crime, to be served concurrently. The trial court entered judgment consistent with this recommendation. This appeal involves only the second trial and the resulting judgment.


A. The Trial Court Erred in its Application of Batson.

The Commonwealth used two of its nine peremptory challenges to strike African-American jurors, one male and one female. Ross invoked Batson and challenged those strikes as racially discriminatory. The Commonwealth justified the strike of the African-American male by explaining the Commonwealth had prosecuted his brother in the past and that there was another case then pending against the brother in which the juror was a victim and potential witness. As justification for striking the African-American female, in a moment of surprising candor and with his hand raised as if swearing an oath, the ...

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