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Ross v. Commonwealth

Supreme Court of Kentucky

November 2, 2017

COLE D. ROSS APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

         ON APPEAL FROM GRAVES CIRCUIT COURT HONORABLE TIMOTHY C. STARK, JUDGE NO. 10-CR-00272

          COUNSEL FOR APPELLANT: Linda Roberts Horsman Assistant Public Advocate.

          COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky Micah Brandon Roberts Assistant Attorney General.

          OPINION

          VENTERS, JUSTICE

         Appellant, 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Appellant 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).[1]

         Upon 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.

         On the 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.

         Tonya 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.

         Instead 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.

         Appellant's 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.

         Colston's 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.

         At the conclusion of the third trial, Appellant was again convicted and sentenced to life imprisonment. This appeal followed.

         II. APPELLANT WAS NOT ENTITLED TO A DIRECTED VERDICT BASED UPON INHERENTLY UNBELIEVABLE TESTIMONY

         Appellant 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).

         Appellant 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.

         Our 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 ...


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