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Date: 11-07-2017

Case Style:


Case Number: 2016-SC-000165-DG

Judge: Daniel J. Venters

Court: Supreme Court of Kentucky

Plaintiff's Attorney: Andy Beshear
Attorney General of Kentucky

Jason Bradley Moore
Assistant Attorney General

Defendant's Attorney: Erin Hoffman Yang
Assistant Public Advocate

Description: 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 i:i;i the second degree and tampering with physical
I evidence.I 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
I The Court of Appeals upheld both of Appellant's convictions, but vacated the sentence imposed for tampering with evidence and remanded for retrial of the penalty phase pertaining to that charge.
his anticipated testimony. For the reasons stated below, we affirm the Court of
Appeals' decision, but we do so ori different grounds. ) \_
Shawn Thompson was shot and killed while he and Sarah Sanders were I
I visiting the Simpson County residence of Appellant and Chdstina 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.
Defective Lawson then arrived on the scene and began questioning
Appellant about the shooting. Appellant later went voluntarily with officers to
the ~heriffs 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
I 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 ~eny 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
manifost injustice resulted from the Commonwealth's reference to Appellant's
pre-arrest silence.
2 The tampering with evidence charge stemmed from the allegation that after the shooting, Appellant repositioned a sword to make it appear that Thompson was armed with. the sword at the time of the shooting.
I "'
A. Appellant's silence in the face of Sanders' accµsation 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
errm:;1eous 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 circ\lmstances 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. Johnsoh 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 I
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] immediate~y started telling
what had happened." She did not specifically testify about her accusation; nor
did she mention Appellant's failure to respond.
Appellant. testified that when he was taken into the residence, ·he tried to
explain to the deputy what happened, but that Sanders was screaming
accusations and interrupting him. He acknowledged that his initial description
of the incident to police may have been incomplete because he was in shock
arid the chaotic situation caused by Sanders' screaming was not conducive t6
that type of communication. He stated his statements were getting confused
with what others, including Sanders, were saying.
KRE 80 lA(b) governs· the hearsay rule exception pertaining to admissions
of parties .. Even though Sanders' accusation might otherwise be inadmissible
hearsay, KRE 801A(b)(2) would permit its introduction into evidence if, under
the circumstarices, Appellant's.conduct including his failure to reply
"manifested [his] adoption or belief in its truth."3 KRE_ .. 801A(b)(2) is the rnodern
expression of a well-established common law rule of evidence:
3 KRE 801A(b) states in pertinent part: "Admissions of parties. A statement is · not excluded by the hearsay rule, even though the declarant is available as a witness,
When accusatory or incriminating statements are made in the presence and hearing and with the understanding of the accused person and concerning a matte.r within his knowledge, under such circumstances as would seem to call for his denial and none is made, those statements, and the fact that they were not contradicted, denied, or objected to, become competent evidence against the defendant.
Griffithp. Commonwe~lth, 63 S.W.2d 594, 596 (Ky. l933).4
Like many common law rules of evidence that have been included in
modern codes of evidence, KRE 801A(b)(2) derives its wisdom from an -, elementary rule of human nat~re that was long ago woven into the fabric of the
common law. Griffith explains the rational basis for the rule:
· Admissibility of [an out-of-court accusatory statement] as not being tainted by the hearsay stigma is based upon the crystalization [sic] of the experience of men that it is contrary to their nature and habits· to permit statements to, be made in their hearing and presence tending to connect them with an offense for which they may be made to suffer punishment without entering an objection or denial unless they are in some manner repressed or restrained or there is seemingly no natural and proper call for such contradictions. The occurrence is a fact for the jury to 'interpret as throwing light upon the question of guilt or innocence. Its probative force may be great or little according to the particular, circumstances and the general mental and moral fiber of the person charged. Such is the rationale and the rule in this state.
63 S.W.2d at 596.
if the statement is offered against a party and is ... (2) A statement of which the party has manifested an adoption or belief in its truth." 4 Overruled on other grounds in Colbert v. Commonwealth, 306 S.W.2d 825, 828 (Ky. 1957).
Recently, in Cunningham v. Commonwealth, we reiterated that "[t]o
qµalify as an adoptive admission through silence under.KRE 801A(b)(2}, the
defendant's silence must be a response to 'statements [of another person, the
declarant] that would normally evoke denial by the party if untrue. m 501
S.W.3d 414, 419 (Ky. 2016) (citing TrifJg v. Commonwealth, 460 S.W.3d 322,
331 (Ky. 2015), quoting Robert G. Lawson, The Kentucky Evidence Law
Handbook§ 8.20[3][b] at 597 (5th ed. 2013)). A trial court has broad discretion
in determining the facts regarding the admission of evidence under KRE
801A(b)(2) and we review its determination in that regard for abuse of
discretion. Dant v. Commonwealth, 258 S.W.3d 12, 18 (Ky. 2008) (citation
omitted). Nevertheless, when reviewing an application of KRE 801A(b)(2}, we
remain mindful of Professor Lawson's warning that "[s]ilence with respect to a
statement will always have some ambiguity, which creates a need for cautious
use of the concept and thoughtful consideration of th.e circumstances
surrounding that silence." Trigg, 460 S.W.3d at 332 (quoting Lawson, The
·Kentucky Evidence Law Handbook§ 8.20[3][b] at 597).
Against this background of basic principles, we review the circumstances
surrounding Sanders' accusation and Appellant's corresponding conduct to see
if one could reasonably infer that Appellant "manifested an adoption or belief in
[the] truth" of Sanders' exclamation so as to constitute his adoption of her
statement, thereby allowing its admission into evidence. Ragland v.
Commonwealth, 476 S.W.3d 236, 251 (Ky. 2015) ("Determination [of an
adoptive admission under KRE 801A.(b)(2)] should be made with consideration
of the contemporaneous circumstances surrounding the making of the
statement and the silent response to it.").
Of.immediate significance in our review of the relevant circumstances is
the fact that Appellant had been conversing with Deputy Jories about the
shooting when Sanders interrupted. Appellant, therefore, was not silent.
According to Sanders, her accusation was itself a reaction to what she
perceived as Appellant's exculpatory statement to Deputy Jones. Deputy
Johnson, Sanders, and Appellant all confirm that Appellant was talking to
\ Deputy Jones about the incident before Sanders uttered her accusation. ' ' ·As derived from the rational basis for the rule noted above, a suspect's /
failure to deny an incriminating accusation is not an admission of guilt under
circumstance in which "there is seemingly no natural and proper call" to
contradict the accusation. Griffith, 63 S.W.2d at 596. Appellant would have
had no "natural and proper call" to contradict Sanders' outburst when he was
then and there in the process of telling his side of the story to the police,
especially after his explanation had provoked Sanders' accusation. Engaging
Sanders l.n a. debate about the shooting would not be a reasonable option
under such circumstances and would not have been helpful to police trying to
quiet a chaotic situation. Given those circumstances, it cannot reasonably·or
fairly be said that Appellant was naturally called to contradict Sanders'
accusation, and it appears that the trial court did not take this factor into
account. Appellant's failure to verbally protest Sanders' accusation did not . ( "manifest an adoption or belief in its truth." KRE 801A(b)(2). We are satisfied
that admitting Sanders' accusation under such circumstances was an abuse of
discretion, and therefore the corresponding inference that Appellant had tacitly
adopted her accusation as his own truthful statement was improperly.-allowed. . .
Appellarit argues that the jury's decision to foe his sentence at the
maximum penalty for both offenses proves that the error in admitting his
silence as his affirmation of Sanders' accusation cannot be dismissed as
·harmless. We disagree. Appellant was charged with murder; he did not deny
shooting Thompson, but he claimed that he did so in self-defense. To prove the
murder charge, including the element that ,Appellant was not acting in self-i
d~fense, the Commonwealth urged the jury to construe Appellant's silent
response to Sanders'.accusation as an admission of guilt that he had, in fact,
shot Thompson "in the back for no reason~"
As established by the verdict convicting Appellant of second-degree
manslaughter, the jury necessarily rejected the inference that Appellant
admitted by his silence that he shot Thompson for no reason. s The jury was
evidently persuaded that Appellant's reason for shooting Thompson was his
/ . actual, but mistaken, belief that he needed to use deadly force to protect
himself from Thompson. That verdict indicates that the jury recognized, as we
explained above, that Appellant's silence under these circumstances did not
. signify his agreement with the accusation. The verdict dispels our concern that
' . s As constructed in this case, the jury instructions did .not provide for a theory of second-degree manslaughter other than one based upon imperfect self-defense in wantonly forming the belief that he had to act with deadly force to protect himself or others.
the jury was influenced by the error and allows us to "say with fair assurance
that the judgment was not substantially swayed by the [evidentiary] error."
Winstead v. Commonwealth, 283 S.W.3d 678, 689 (Ky. 2009) :(citation omitted).
The erroneous application of the adoptive admission exception to the hearsay
rule was harmless in this instance. RCr 9.24.6
B. The prosecutor improperly explained to the jury the adoptive admission rule.
Appellant further complains on appeal that the prosecutor improperly
expounded upon the legal theory of adoptive admissions in the opening
statement and in his closing argument. The alleged error in the opening
statement was preserved by an appropriate objection, which the trial court
sustained .. The alleged error in the closing argument was not preserved, and
Appellant requests palpable error review.
In the opening statement, the prosecutor told the jury:'
[W]e're going to talk about a thing called adoptive admissions, that's a legal term for . . . when someone says something incriminating about you that nonnally calls for you to respond, you need to respond negatively and deny it, and if you don't, you 're adopting it, you 're agreeing to it.
During closing arguments, the prosecutor again explained to the·
jury: "We call it an adoptive admission. Under the law, if some.body says
something that you've got to respond to, and you don't, you 're taking it as
. 6 RCr 9.24 states in pertinent part: "No error in either th~ admission or the exclusion1 of evidence ... is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order unless it 'appears to the court that the denial of such relief would be inconsistent with substantial justice."
your own statement." After providing examples of circumstances in
which an accusatory statement would demand a response, the
prosecutor repeated: "I/someone walks up to you and says . .. 'You're a
murderer, you shot someone in the back for no reason, ' you have to
respond, or else you're adopting it as· theit telling you the truth."
We agree that the prosecutor overreached by attempting to explain the
law to the jury. To the extent that the jury needs to understand the law, the
presentation of the law to the jury is exclusively within the province of the
court. See RCr 9.54(1); Broyles v. Commonwealth, 267 S.W.2d 73, 76 (Ky.
1954) ("The only law which the jury should be interested in is that contained in
the court's instructions."). In closing argument, trial counsel may emphasize
legal principles found in the jury instruction but may not assume the role of
teaching the law or applicable legal principles to the jury. Broyles, 267 S.W.2d
at 76 ("The argument of an attorney should be confined to a discussion of the
facts of the case and to the instructions as they apply to those facts." "A
dissertation on abstract rules of law has no place in an argument to a jury
from a procedural standpoint.").
The Commonwealth insists that even if the comments called into
question were improper, prejudicial error did not occur because the prosecutor
did not misstate the law. We do not agree that the prosecutor accurately
explained the law, and we take this opportunity to identify the common
misperception about adoptive admissions reflected in the prosecutor's
The prosecutor's comments to the jury that "You need to respond . . .
, and deny [the incriminating accusation], and if you don't, you're adopting it, ~~
you're agreeing to it" and "You have to respond, or else you're adopting it as
their telling you the truth" suggests that one has a legal duty to respond, to an
accusation. That is incorrect. There is no legal duty to respond to an
accusat.ion, and the law does not ordain that one who fails to deny an
accusation has legally admitted it.
Neither the common law rule of adoptive admissions nor KRE 801A(b)(2)
creates the duty suggested by the prosecutor. In further contradiction of the
prosecutor's argument, there is no presumption that in failing to deny an
accusation, "you're adopting it, you're agreeing to it." The law of adoptive
admissions is nothing more than an exceptiqn to the hearsay rule that allows
in applicable circumstances an otherwise inadmissible out-of-court assertion \
(i.e., the accusation) to be admitted as evide·nce for whatever probative value it
may have against a party whose conduct has "manifested an adoption or belief
in [the] truth" of the out-of-court statement. KRS 801A(b)(2). As we
emph,~sized in Trigg, "it is not the silence itself that constitutes the 'statem,.en.t' to
be admitted into evidence. The 'statement' that the rule admits into evidence is
the audible expression of another person [which] the defendant heard and to
which the defendant's silence 'manifested an adoption or belief in its truth."'
460 S.W.3d at 331.
/ As noted in Griffith and other cases, the common law of evidence . .
embracing the collective societal knowledge of human nature teaches that, in
certain Circumstances after hearing a statement, a person's conduct (including
his silence) can look and sound very much like a manifestation of his belief
that the statement is true. At most, the law allows the fact finder to hear the
out-of-court accusation and then draw from the listener's conduct any
reasopable inference their wisdom and common-sense permits, including the
inference that the listener agrees with the accusation. Upon a proper
application of KRE 801A(b)(2}, trial counsel may encourage a jury to interpret a
party's silence as an admission; but telling the jury as a matter of law that the
party's silence is an admission is inaccurate and impermissible.
' / The trial court correctly sustained Appellant's objection during the opening
statement, and no other relief was requested. The similar remark made during
the prosecutor's closing argument was equally improper, but that error was not
preserved. Upon reviewing. it, we find that no manifest injustice resulted from
the error for the same reason we found the erroneous admission of Sanders'
statement to be harmless. The jurors clearly found that Appellant's silence was
not his admission that h.e shot Thompson "for no reason." The jury accepted
Appellant's testimony that he believed his use of force was .necessary in self
defense, but further concluded that Appellant was wantonly mistaken in that
belief. RCr 10.26 bars appellate relief for unpreserved errors which do not
result in manifest injustice.
C. Comparing the inconsistencies .or Appellant's pre-trial statements was not an improper comment upon his pre-arrest silence. ' In his testimony during the Commonwealth's case-in-chief, Detective
Lawson described the account of the incident Appellant provided at the scene
of the crime. Lawson. testified that, although Appellant had the opportunity at
the scene to explain in detail "everything that happened," he only provided "a I i partial story," le8:ving out many .details. Lawson testified that.the statement
Appellant gave later at the sheriffs office included details omitted from their
earlier discussion.
Appellant claims that this line of direct examination was improper: (1)
because it constituted comment upon Appellant's pre-arrest ~xercise of his
right to remain silent; and (2) because this testimony during the
· Commonwealth's case-in-chief was admissible only as rebuttal testimony.
Since neither of these alleged errors was preserved for appellate review,
Appellant seeks palpable error review under RCr 10.26.
We agree, having so held in Baumia v. Commonwealth, 402 S.W.3d 530,
536 (Ky. 2013), that a suspect retains his Fifth Amendment right to remain
silent during the pre-arrest phase of a case and that an invocation of that right
by remaining silent cannot be used against him. Contrary to Appellant's ·
argument, his silence before arrest was not used against him. Appell~nt's pre
trial voluntary statements fo police were admis~ible, and La~son's testimony
describing the differences in Appellant's· statements was not a reference to
Appellant's invocation or exercise of his right to remain silent.
In Anderson v. Charles, 447 U.S. 404, 408-409 (1980), the United States.·
Supreme Court .held that a police officer's testimony abou.t the inconsistencies
' . between a defendant's trial testimony and his pre-trial statement was not
"designed to draw meaning from silence, but to elicit an explanation for a prior
inconsistent statement," and that the omission of facts, when comparing two
inconsistent statements, will not be viewed as silence under Doyle v. Ohio, 426
U.S. 610 (1976). Anderson's rationale applies equally well to a comparison of
two pre-trial statements made by the accused at different times.· Detective
·Lawson's testimony on this point was not improper.
We also reject the claim that Lawson's testimony was calculated to
impeach Appellant before he testified and that he was unfairly compelled to
defend his credibility by testifying when he might otherwise have preferred not
to. Identifying the inconsistencies in Appellant's pre-trial statements was not a
comment upon his right to remain silent. fyloreover, pointing out such
inconsistencies is not limited to impeachment purposes. Inconsistent
statements are properly introduced as substantive evidence. Jett v.
Commonwealth, 436 S.W.2d 788, 792 (Ky. 1969);.KRE 801A(b)(l). Under Jett,
the inconsistencies in Appellant's pre-trial statements were properly taken into
evidence as substantive proof. It was reasonable to infer that the differences in
Appellant's voluntai:y pre-trial statements indicated an effort to exculpate
himself, which as substantive evidence could be construed as probative of
guilt, notwithstanding its effect upon his perceived credibility. See Fisher v. ~
Duckworth, 738 S.W.2d 810, 814 (Ky. 1987). We find no error in admitting
Detective Lawson's testimony and no basis upon which to grant palpable error

Outcome: For the reasons set forth above, we affirm the Court of Appeals' decision,
although we do so on different grounds.·

Plaintiff's Experts:

Defendant's Experts:


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