REVIEW FROM COURT OF APPEALS CASE NO. 2014-CA-001523-MR
SIMPSON CIRCUIT COURT NO. 13-CR-00049.
COUNSEL FOR APPELLANT: Erin Hoffman Yang Assistant Public
COUNSEL FOR APPELLEE: Andy Beshear Attorney General of
Kentucky Jason Bradley Moore Assistant Attorney General.
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. 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
FACTUAL AND PROCEDURAL BACKGROUND
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.
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.
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.
was indicted for the murder of Shawn Thompson and for
tampering with physical evidence. 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.
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
Appellant's silence in the face of Sanders'
accusation was not an adoptive admission
under KRE 801A(b)(2).
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.
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.
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
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