COLE D. ROSS APPELLANT
COMMONWEALTH OF KENTUCKY APPELLEE
APPEAL FROM GRAVES CIRCUIT COURT HONORABLE TIMOTHY C. STARK,
JUDGE NO. 10-CR-00272
COUNSEL FOR APPELLANT: Linda Roberts Horsman Assistant Public
COUNSEL FOR APPELLEE: Andy Beshear Attorney General of
Kentucky Micah Brandon Roberts Assistant Attorney General.
Cole Douglas Ross, appeals from a judgment of the Graves
Circuit Court convicting him of murder and first-degree
arson, and sentencing him to two concurrent terms of life
imprisonment. On appeal, Appellant contends that his
convictions must be reversed because (1) he was entitled to a
directed verdict based upon the "inherent
unbelievability" of the Commonwealth's principal
witness, Tonya Simmons; (2) the trial court erred by denying
his motion for a mistrial; and (3) the prosecutor engaged in
impermissible closing argument. For the reasons explained
below, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
was indicted for the murder of Keith Colston and first-degree
arson relating to the burning of the Colston residence. His
first trial ended with a hung jury. Upon retrial, he was
convicted and sentenced to life imprisonment. On appellate
review; this Court reversed the convictions and remanded the
case for a third trial. See Ross v. Commonwealth,
2015 WL 737573 (Ky. 2015).
remand, evidence presented at the third trial included the
following facts. Appellant was in a romantic relationship
with a married woman named Tonya Simmons. Tonya lived with
Appellant until he lost his job and his home. At that point,
Tonya returned to live with her husband and children while
Appellant moved into a spare room at the residence of his
friends, Lisa and Keith Colston. Keith had recently undergone
hip surgery and still had difficulty getting around. He also
suffered from a respiratory condition that occasionally
required him to rely upon an oxygen tank.
day of Keith Colston's death, Lisa left the residence
early in the morning to go to work. Appellant spent much of
the morning running errands with Tonya and her two small
grandchildren. According to Tonya, they made several stops
before she returned Appellant to"the Colston residence.
The time of their return is disputed. Tonya testified that
she got Appellant back to the j residence at 10:00
a.m., but a store receipt indicated that she was still
running errands at 11:15 a.m. Tonya testified that when she
returned Appellant to the Colston residence, he asked her to
go buy some beer for him, and she did so. A receipt from a
nearby store showed that Tonya purchased beer and other items
at 12:54 p.m. Tonya testified that when she returned with the
beer, the trunk of Appellant's car was open and various
items belonging to him were packed inside. As she walked to
the back door, she saw flames inside and she heard Keith
inside calling for help. Tonya testified that Appellant came
to the back door, pushed her away, and assured her that he
would help Keith.
then returned to the front of the residence, and from that
vantage point, she saw Appellant pick up two bottles of
charcoal lighter fluid from the front porch and take them
into the burning residence. Keith was still calling for help.
Tonya called 911 to report the fire; her call was logged in
at 1:14 p.m. She testified that Appellant then emerged from
the burning residence, got into his car, and drove away
before emergency responders arrived.
of remaining at the scene to tell responders what she had
seen, Tonya testified that she had to pick up her sister and
her niece at a local hospital so she, too, left the scene of
the crime she claimed to have witnessed. Despite numerous
opportunities, Tonya did not report what she saw until three
days later, when she told her story to police. Tonya
testified that she intended to contact police sooner but was
unable to do so because Appellant was watching to ensure she
did not contact the police.
version of events differed significantly from Tonya's.
According to his statement to investigators, he last saw
Keith around eight or nine on the morning of the fire when he
left to run errands with Tonya. He testified that he, not
Tonya, bought the beer and that he did so at 1:41 p.m.
Appellant claimed he first learned about the fire when Lisa
Colston contacted him with the news later that afternoon. He
then went to Lisa's grandmother's home to console
Lisa and other family members who gathered there after
learning that Keith's body was found in the charred
remains of the home. Appellant returned to the scene with
Lisa to talk to investigators.
severely burned body was found lying face up in the hallway
of the home. Expert testimony suggested that this body
position was inconsistent with death by smoke inhalation
because most smoke inhalation victims are found in a
face-down position. Evidence also indicated that the carbon
monoxide level in Colston's body at the time of death was
too low to be fatal absent other contributing circumstances.
Samples of the unburned carpet and subflooring from beneath
Colston's body indicated the presence of "medium
petroleum distillates." Charcoal lighter fluid is
classified as a medium petroleum distillate. The scientific
evidence accordingly indicated that Colston burned to death
and that the fire was deliberately set.
conclusion of the third trial, Appellant was again convicted
and sentenced to life imprisonment. This appeal followed.
APPELLANT WAS NOT ENTITLED TO A DIRECTED VERDICT BASED UPON
INHERENTLY UNBELIEVABLE TESTIMONY
first contends that he was entitled to a directed verdict
acquitting him of both charges. A defendant is entitled to a
directed verdict of acquittal when, after all fair and
reasonable inferences from the evidence are drawn in favor of
the Commonwealth, the evidence is insufficient to induce a
reasonable juror to believe beyond a reasonable doubt that
the defendant is guilty. Commonwealth v. Benham, 816
S.W.2d 186, 187 (Ky. 1991).
does not dispute that the evidence, when taken at face value
and viewed in the light most favorable to the Commonwealth,
satisfies the Benham standard. He notes, however,
that the sufficiency of the evidence to convict him depends
entirely upon Tonya's claim to have been an eyewitness to
his involvement in the crimes, and that without her critical
testimony, the evidentiary calculus shifts to insufficiency
under the Benham standard. He contends that Tonya,
the only witness linking him to the crime, was so utterly
incredible and untrustworthy as a witness that all of her
uncorroborated testimony was unworthy of belief as a matter
of law and should have been disregarded in the directed
verdict analysis, Appellant bases his characterization of
Tonya's credibility upon her demeanor at trial, the
inconsistencies in her testimony at the three trials, and the
inconsistencies in her third-trial testimony and other, more
credible evidence. He also notes that Tonya's words were
often "slurred and mumbled." He directs our
attention to the fact several times as she testified, she had
to be reminded to speak clearly and into the microphone. He
notes that she had difficulty remembering facts, despite it
being her third time to testify at a trial on the subject,
and that the prosecutor frequently had to prompt her with
leading questions to which Appellant's objections were
sustained. He also notes that defense counsel began his
cross-examination of Tonya by asking her if she was thinking
clearly and if she had anything to drink that day. Tonya
denied that she had been drinking or taking intoxicants.
Appellant also reminds us that Tonya claimed no knowledge of
the crime for three days.
review of the record compels us to agree that Tonya lacked
many of the qualities commonly associated with credibility
and that she modeled many of the flaws identified by
Appellant. Appellant correctly cites authority which
recognizes that, in exceptional circumstances, a
witness's testimony may be so improbable and ...