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Moss v. Commonwealth

Supreme Court of Kentucky

November 2, 2017



          COUNSEL FOR APPELLANT: Erin Hoffman Yang Assistant Public Advocate.

          COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky Jason Bradley Moore Assistant Attorney General.



         Appellant, Daniel Lee Moss, appeals from a decision of the Court of Appeals which affirmed the judgment of the Simpson Circuit Court convicting him of manslaughter in the second degree and tampering with physical evidence.[1] We granted discretionary review to address Appellant's claims that the trial court erred by: 1) allowing the prosecutor to use his silence as an adoptive admission of guilt, and to expressly portray it as such in the Commonwealth's opening statement and closing argument; and 2) allowing his pre-arrest silence to be used as substantive evidence of his guilt and to rebut his anticipated testimony. For the reasons stated below, we affirm the Court of Appeals' decision, but we do so on different grounds.


         Shawn Thompson was shot and killed while he and Sarah Sanders were visiting the Simpson County residence of Appellant and Christina Layle. Appellant informed the 911 operator that he had been attacked in his home and had to shoot his assailant (Thompson). Officers from the Simpson County Sheriffs office responded quickly. Deputy Jones arrived first to find Thompson lying face up on the porch with his head at the bottom of the front steps. Sanders was kneeling over Thompson, hugging him and screaming.

         Deputy Johnson arrived next on the scene. In order to calm what was described as a chaotic scene, the officers took Appellant, Layle, and Sanders into the residence and seated them in the living room. As they did so, Deputy Jones conversed with them. Appellant was explaining to Jones what had happened when Sanders screamed, "You shot him in the back for no reason." Appellant made ho reply; he remained seated with his hands partially covering his face and mouth. Deputy Johnson took Sanders to a patrol car to separate her from the others at the scene.

         Detective Lawson then arrived on the scene and began questioning Appellant about the shooting. Appellant later went voluntarily with officers to the sheriffs office where he made a more formal statement.

         Appellant was indicted for the murder of Shawn Thompson and for tampering with physical evidence.[2] At trial, the jury found him guilty of tampering with evidence, but acquitted him of murder and instead convicted him of the lesser charge of second-degree manslaughter based upon an imperfect self-defense theory: Appellant had an actual but mistaken and wantonly-formed belief that he had to shoot Thompson in order to protect himself (or others) from harm threatened by Thompson. Appellant's sentence was fixed at the maximum term of imprisonment for each crime: 10 years for second-degree manslaughter and five years for tampering with evidence, to be served consecutively.

         The Court of Appeals agreed with the Commonwealth that Sanders' accusatory statement along with Appellant's failure to deny it, qualified for introduction into evidence under KRE 801A(b)(2) as an adoptive admission, or as it is sometimes called, an admission by silence. Correspondingly, the Court of Appeals rejected Appellant's argument that he was improperly prejudiced by the Commonwealth's repeated characterization of Sanders' statement as an adoptive admission. The Court of Appeals also rejected Appellant's claim that a manifest injustice resulted from the Commonwealth's reference to Appellant's pre-arrest silence.

         II. ANALYSIS

         A. Appellant's silence in the face of Sanders' accusation was not an adoptive admission under KRE 801A(b)(2).

         Appellant argues that the trial court and the Court of Appeals erred in their respective applications of KRE 801A(b)(2) leading those tribunals to the erroneous conclusion that Sanders' accusation that Appellant "shot [Thompson] in the back for no reason, " coupled with Appellant's failure to respond, were admissible as Appellant's admission that Sanders' statement was true. Appellant preserved the issue for appellate review with an appropriate objection during the trial. Upon review, we agree with Appellant that the fundamental requirements for the application of KRE 801A(b)(2) were not present here. But, we further conclude that the error was harmless.

         At trial, Deputy Jones, Deputy Johnson, Sanders, and Appellant all testified to the circumstances surrounding Sanders' accusation. Deputy Johnson testified first. He testified that after he arrived on the scene, Appellant, Layle, and Sanders were taken into the residence. Johnson said he listened as Deputy Jones talked to them. Sanders, seated in close proximity to Appellant, loudly exclaimed, "You shot him in the back for no reason." Johnson testified that Appellant's hands partially covered his face and mouth and he said nothing.

         Deputy Jones testified that the scene was chaotic when he arrived, with Sanders screaming and yelling. To get control of the situation and determine what happened, Sanders, Layle, and Appellant were taken inside and seated in the living room. Jones testified that Sanders shouted out, "You shot him in the back for no reason, " but he could not say to whom she directed her accusation. Jones confirmed that Appellant sat there holding his head in his hands and did not reply.

         Sanders testified that when the officers took her and the other witnesses into the house, Appellant began explaining his version of the events. Sanders said she got "so worked up from everything, [and] immediately started telling what had happened." She did not specifically testify about ...

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