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RENDERED: APRIL 27, 2017
NOT TO BE PUBLISHED

Supreme Tnuri of Benfnckg

2016-SC-000290-MR
DAVID ALBERT SOLOWAY \ APPELLANT

ON APPEAL FROM CAMPBELL CIRCUIT COURT
V. HONORABLE JULIE REINHARDT WARD, JUDGE
NO. lS-CR-OO469

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT
REVERSING AND REMANDING

A circuit court jury convicted David Soloway on two counts of first-degree
sodomy, one count of sexual abuse, and first-degree persistent-felony offender
(PFO), for which he was sentenced to forty-five years’ imprisonment He now
appeals that judgment as a matter of right.1 Because we hold that the
prosecution’S comment in its closing argument on Soloway’s post-arrest silence
constitutes a palpable error that substantially undermines the fairness of the

trial, we reverse the judgment below and remand for further proceedings not

inconsistent with this opinion.

 

1 Ky. const § 110(2)(b).

I. FACTUAL AND PROCEDURAL BACKGROUND.
In 2014, Amanda Lanthorne moved in with Soloway. She had three

children-two sons and a daughter-who, at the time of trial, were thirteen,
nine, and eight, respectively. At the time Lanthorne moved, her children were
in foster care because of a domestic violence incident between Lanthorne and
an ex-boyfriend. But within months, the children returned to Lanthorne’s
custody and joined her in Soloway’s residence.

Soloway owned a three-bedroom residence. He shared a bedroom with
Lanthorne, the boys shared a room, and Joyce2 had her own room, Both
Lanthorne and Soloway were employed and worked outside the home, so
Soloway would take responsibility for the children while Lanthorne was at
work. During these times, the two boys would often play video games with each
other in their room while Soloway took Joyce to his room, As far as the boys
were concerned, Joyce and Soloway were “napping'” those times when
Lanthorne was at work. But according to Joyce, Soloway molested her'when
they were alone in his bedroom.

Joyce Was able to describe two instances of sodomy and one instance of
sexual abuse. She claimed that she touched Soloway’s private part while sitting
on his bed. Recounting another incident, she said Soloway told her to lie on the
bed with her legs hanging off. Soloway then got on his knees and proceeded to

lick her vagina. Joyce claims he did this multiple times. And one final incident

 

2 Joyce is a pseudonym.

occurred when Soloway put his private part in Joyce’s mouth. Soloway
instructed Joyce to never tell anyone about the things he did to her.

Though frightened by Soloway’s warnings, Joyce eventually told her
brother about what was happening He told Lanthorne, who instructed him not
to talk about it and that they would move from Soloway’s residence. Lanthorne
confirmed this account with Joyce, yet again instructed her to say nothing
until Lanthorne figured out what to do. This led Lanthorne to contact Soloway’s
niece, Christina, who took Joyce to her home for the evening.

The next morning, Joyce’s brother informed a teacher at school about the
situation. This report caused the Cabinet for Families and Children and the
police to become involved. When interviewed by the police, Lanthorne lied and
omitted much of what Joyce had disclosed to her. And, despite being warned
not to tip off Soloway, Lanthorne told Christina that Soloway was to be
arrested, who then texted him “911.” Soloway immediately fled to a motel and
got drunk. But the next day, after coming to his senses, Soloway turned
himself in.

The grand jury indicted Soloway on two counts of first-degree sodomy,
three counts of first-degree sexual abuse and for being a first-degree PFO. A
circuit court jury convicted him of two counts of first-degree sodomy, one count
of first-degree sexual abuse, and of being a first-degree PFO. The trial court
sentenced him to forty-five years’ imprisonment and entered a conforming

judgment. Soloway now appeals to this Court as a matter of right.

II. ANALYSIS.

A. The Commonwealth’s Commentary On Soloway’s Post-Arrest Silence
During Closing Argument was Prosecutorial Misconduct.

Soloway draws our attention to the Commonwealth’s statements related
to his refusal to speak with law enforcement I-Iis argument stems from two
encounters First, during his cross-examination, after confirming he instructed
Christina not to speak with police and to invoke her Fifth Amendment right
against self-incrimination, he volunteered that he would have spoken with the
investigating detective had he been approached. The Commonwealth followed
up this revelation With a line of questioning related to his silence and the
detective’s inability to question him because he had an attorney. Defense
counsel never objected during cross-examination.

The second instance arises during the Commonwealth’s closing
argument when the prosecutor commented on this encounter. Specifically,
Soloway takes issue with the following excerpt from the prosecutor’s argument:

[Soloway said] “[w]ell, they could have, they could have, they could
have talked to me.” And when [he]... got to the jail, “Yeah, they
could have come talked to me.” He had a lawyer. Detective can’t
talk to him.

So he said he had a lawyer. And when I asked him if he tried to
talk to law enforcement after he got his lawyer, what did he say?
No, I did not. If you Were an innocent man, if you think law
enforcement can talk to you, would you talk to law enforcement?
Even after you got a lawyer. Because you’re not an innocent man,
Ladies and gentleman of the jury, an innocent man, when he hears
he’s accused of child sex abuse, does he-_what does he do? He
tells everybody he knows. He goes to law enforcement and says, “I
didn’t do it. What do I need to do? Who do I need to talk to?” No,
what did he do? What did he tell you? “I went to a motel and got
drunk.” Those are the actions of a guilty man that knows he

should be going to jail.

Soloway’s counsel objected, but only to state that it was unestablished that he
had a lawyer at the time, and not to the line of questioning from the cross-
examination. He argues on appeal that this portion of the closing argument
was inappropriate and abusive conduct unbefitting a prosecuting attorney,
rendering his trial fundamentally unfair. l

When reviewing a question of prosecutorial misconduct, our relevant
question on appeal is whether the defendant received a fundamentally fair
trial.3 Finding prosecutorial misconduct during closing argument requires
proof that the conduct is flagrant, or a determination that each of the following
is satisfied: (l) proof of the defendant’s guilt is not overwhelming; (2) defense
counsel objected; and (3) the trial court failed to cure the error with a sufficient
admonishment to the jury.4

But we employ another, slightly different standard if defense counsel fails
to timely object to alleged prosecutorial misconduct, After all, a party who
desires an issue to be reviewed must make a timely objection during trial.5
‘Failing to abide by this simple rule of evidence consequentially results in the
issue being unpreserved for appellate review.6 This failure to object removes the

trial court’s ability to admonish the jury to cure the potential error. In such

 

3 Ma.xie v. Commonwealth, 82 S.W.3d 860, 866 (Ky. 2002).

4 Barnes v. Commonwealth, 91 S.W.3d‘564, 568 (Ky. 2002).

5 See West v. Commonwealth, 780 S.W.2d 600, 602 (Ky. 1989).

6 'See Bowers v. Commonwealth, 555 S.W.2d 241, 243 (Ky. 1977).

5

event, we only reverse if misconduct is f`lagrant.7 Flagrant misconduct requires
evaluating the following four factors: (1) whether that remarks tended to
mislead the jury or prejudice the accused; (2) whether they were isolated or
extensive; (3) whether they were deliberately or accidentally placed before the
jury; and (4) the Strength of the evidence against the accused.

In terms of Soloway’s questioning on cross-examination, the
Commonwealth correctly identifies that this line of questioning centered on his
pre-arrest silence. And sure enough, this silence can be appropriately used by
the prosecution in certain circumstances8 Though it may not be used to prove
substantive guilt, the prosecution may use a defendant’s pre-arrest silence for
impeachment purposes.9 The Commonwealth accordingly asserts that this line
of questioning is used to undermine Soloway’s alleged willingness to participate
in the criminal investigation. And in this instance, we agree. Defense counsel
did not object to this line of questioning, and we are persuaded that the
prosecution only explored this issue after Soloway volunteered a willingness to
talk to police before his arrest. So we See no error during cross-examination

As for the Commonwealth’s closing argument, that is a different story.
We hold that these statements, despite the considerable leeway we allow for
closing arguments, are inappropriate commentary on Soloway’s assertion of his

constitutional right to refrain from self-incrimination. To the extent the

 

7 Hannah v. Commonwealth, 306 S.W.3d 509, 518 (Ky. 2010).
8 See Jenkins v. Anderson, 447 U.S. 231, 239 (1980).
9 See id. See also Combs v. Coyle, 205 F.3d 269, 283 (6th Cir. 2000).

6

Commonwealth merely commented on Soloway’s own testimony on the stand
relating to his pre-arrest Silence, we find no error; the prosecution is certainly
free to comment on testimony and the weight of the evidence.10 But when the
argument continued to equate his refusal, even after arrest, to speak to law
enforcement, to behaviors inconsistent with those of an “innocent man,” the
Commonwealth flagrantly abused its authority in prosecuting the case. We
consider an accused’s right against self-incrimination sacred. And we take any
assault on invocation of this right seriously. The prosecutor erred significantly
in making these statements that misled the jury on the nature of Soloway’s
silence, and deeply prejudiced his defense. Despite Soloway failing to preserve
this specific issue in the record, because this misconduct is flagrant and
palpable, we have no choice other than to overturn the judgment below and
remand for new trial.

As part of his appeal, Soloway raised a number of other issues. Because
those claims are capable of repetition in the event of retrial, we now consider
those issues in turn. y

B. The Trial Court Did Not Erroneously Allow Joyce to Testify Outside
the Courtroom.

Soloway contends that the trial court abridged his right to confront
witnesses guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the
United States Constitution and Sections One, Two, and Eleven of the Kentucky

Constitution, by allowing Joyce’s testimony to be introduced by closed-circuit

 

10 See Mullins v. Commonwealth1 350 S.W.3d 434, 439 (Ky. 2011).

7

television rather than live testimony in open court. The trial court issued the
same ruling with respect to Joyce’s brother’s testimony as well. At trial,
Soloway objected to the Commonwealth’s motion to allow the closed-circuit
testimony, which the trial court overruled.

The decision to allow testimony through closed-circuit television is
governed by Kentucky Revised Statutes (KRS) 421.350. The statute applies
only to criminal prosecutions when the alleged crime involves a child twelve
years old or younger.11 Upon motion by any party and after finding a
“compelling need,” the trial court may order the child’S testimony be taken in
another room and televised through closed-circuit television, with only the
attorneys, people necessary to operate equipment, and those necessary to the
child’s welfare present.12 The statute defines compelling need as a “substantial
probability the child would be unable to reasonably communicate because of
serious emotional distress produced by the defendant’s presence.”13 And we
have articulated that the proper standard of reviewing the trial court’s
determination is the abuse-of-discretion standard.14 So we will not overrule the
lower court’s decision absent a finding that the ruling was “arbitrary,

unreasonable, unfair, or unsupported by sound legal principles.”15

 

11 KRS 421.350(1).

12 KRS 421.350(2).

13 KRS 421.350(5).

14 See Kurtz v. Commonwealth, 172 S.W.3d 409, 411 (Ky. 2005).
15 Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).

8

In Commonwealth v. Willis, we outlined some non-exhaustive factors to
aid trial courts in making this “compelling need” determination.16 We said that
“the age and demeanor of the child witness, the nature of the offense, and the
likely impact of testimony in court or facing the defendant” are relevant
considerations in determining compelling need.17 At the time of the offense,
Joyce was seven years old; she was only eight at the time of her testimony. The
acts Soloway allegedly performed on Joyce were intensely personal The trial
court noted that after being informed of the number of other people that would
be in the courtroom with her, Joyce bowed her head and reiterated that she did
not want to see Soloway.

Soloway contends that this compelling need was not satisfied. He argues
that Joyce’s reluctance to testify is more related to the “stress” of testimony
than any true mental anguish.18 He further contends that his presence in the
courtroom had no bearing on her actual testimony; he highlights her
trepidation recounting the full account of her private interactions with Soloway
with the child therapist in a non-courtroom setting. This, he articulates, shows

that his presence, while perhaps upsetting Joyce, would not affect her actual

testimony,

 

16 716 s.W.2d 224 (Ky. 1986).

17 Id.

18 See George 1). Commonwealth 885 S.W.2d 938, 941 (Ky. 1994) (“The
Kentucky statute does not provide a blanket process for taking the testimony of every
child witness by TV simply because testifying may be Stressful.”).

9

On its face, we cannot say the trial court committed reversible error.
From all we can gather, ample evidence supports the finding a compelling need
existed for Joyce to testify by closed-circuit television. We recognize that the
United States Supreme Court has taken on a more robust interpretation of the
Confrontation Clause in recent case law, holding that defendants enjoy
expansive rights under the Sixth Amendment’s protections And no doubt that
as this constitutional jurisprudence develops, statutes like KRS 42 1.350 will
present more and more difficult decisions in cases of this kind. But for now, we
are confident the trial court did not abuse its discretion in allowing Joyce to
testify remotely.

Though we do not consider this reversible error, we must also stress the
importance of following the statutory guidelines in the event of retrial. Years
have passed since the original trial and, in turn, both Joyce and her brother
have aged and matured during that time, The trial court should therefore
evaluate each child separately to determine whether the need for closed-circuit
testimony still exists and to make Separate findings for each witness in
accordance With the strictures of the statute.

C. Other Instances of Prosecutorial Misconduct.

Soloway’s final issue on review centers on various statements and
actions that occurred during closing arguments. He contends that the
Commonwealth’s characterization of the events as “escalating” in intensity
amounted to prosecutorial indiscretion. Because Joyce could not identify the

order in which the acts took place, it was impossible to determine whether

10

Soloway’s behavior escalated. And accordingly, the trial court ordered the
prosecution to avoid characterizing his behavior in those terms Additionally,
Soloway also takes issue with the prosecution’s emotional display during
closing arguments

His various additional claims of prosecutorial misconduct are preserved
for review while others remain unpreserved. We will address each in turn.

1. The Commonwealth’s characterization that Soloway’s behavior
was “escalating.”

This first instance of alleged misconduct, and the one in which Soloway
is most offended, remains unpreserved. The trial court did instruct the
Commonwealth to avoid making statements characterizing Soloway’s sexual
acts as “escalating,” but defense counsel failed to object to the
Commonwealth’s invocation of this phrase during closing arguments So we
will treat this issue as unpreserved, and We will only reverse upon finding that
this alleged misconduct was flagrant

lt appears the use of “escalating” was an isolated incident in the closing
statement The record indicates that the Commonwealth only used the phrase
once during the course of its argument. We are unpersuaded that the use of
this phrase was part of some attempt to mislead the jury or mischaracterize the
nature of Soloway’s actions And we agree with the Commonwealth that proof
of Soloway’s guilt was strong. The Commonwealth should have, of course,
heeded the trial court’s order to avoid labeling this conduct as escalating
behavior, and the prosecution doubtlessly erred to do so anyway. But

considering all of the factors before us, we cannot say this mistake was

11

reversible error as flagrant prosecutorial misconduct So we agree with the trial
court’s ruling, though We caution the Commonwealth to heed the trial court’s
instructions regarding permissible statements in the event of retrial.

2. The Commonwealth’s display of emotion.

Soloway also critiques the prosecutor’s emotive actions during closing
arguments as she recounted the acts Soloway Was accused of committing
According to Soloway, the prosecutor became very emotional during her closing
argument, crying when talking about the fact that [Joyce] was seven years old.
Somewhat relatedly, he also takes issue with the prosecution’s language in
describing the acts underlying his criminal accusations This issue was
properly preserved for appeal.

In Byrd v. Commonwealth, we recognized that “Trials are conducted by
humans, who often show indignation, anger or Sadness. This does not mean
that real emotion is misconduct.”19 Here the allegedly criminal acts giving rise
to this case are undoubtedly tragic_-a seven year old girl was molested and
abused in a disturbing manner. We cannot say it is misconduct for a
prosecuting attorney to become overcome with emotion when attempting to
recount these incidents to a jury. And the record appears clear that the
prosecutor’s tears were not shed to inflame the passions of the jury or
deliberately to impact the outcome of the case but were the result of an

uncontrollable surge of emotion in the midst of a multi-day jury trial. In fact,

 

19 825 S.W.2d 272 (Ky. 1992).

12

the prosecutor even momentarily paused to regain her composure before
continuing the argument There was no prosecutorial misconduct by this
display of emotion.

3. The Commonwealth’s description of the physical acts.

As for the prosecution’s vivid description of the acts themselves, we
likewise see no error. The prosecution described the nature of the offenses as
follows:

He’s not putting his penis in her anus or putting it in her vagina.

There’s no allegation of that What he’s physically doing to her

doesn’t hurt her. That’s Why she’s not telling It’s not hurting her.

There’s no bleeding. There’s no ripping, there’s no tearing,

Soloway objected to this language and was overruled. The Commonwealth

continued:

So there’s no ripping, there’s no tearing, there’s no bruising,
there’s nothing like that `

Soloway argues that this language Was overly graphic and unduly prejudicial to
his defense. We disagree.

One of Soloway’s defenses at trial was the lack of physical evidence
proving he committed the crimes So naturally, in response to that argument,
the Commonwealth is within its right to distinguish the particular crimes
before the jury and explain why Soloway may still be found guilty without the
physical evidence acquired in a host of other sex crimes In Mullins v.
Commonwealth, we reaffirmed the “longstanding rule...that counsel may

comment and make all legitimate inferences that can reasonably be drawn

13

from the evidence presented at trial.”20 Prosecutors are extended considerable
leeway in conducting a closing argument She may “comment on tactics, may
comment on evidence, and may comment as to the falsity of a defense
position.”21 We cannot review this statement in a vacuum-it must be
evaluated within the context of the argument as a whole. However disturbing
this language may seem to an average listener, we agree with the trial court
that it is not overly prejudicial and did not undermine Soloway’s right to a fair

trial.

III. CONCLUSION.

Because we hold that the Commonwealth committed prosecutorial
misconduct in its commentary relating to Soloway’s post-arrest silence, we
reverse the trial court judgment and remand for new trial.

All sitting. All concur.

 

20 350 s.w.sd 434, 439 (Ky. 2011).
21 Slaughter v. Commonwealth, 744 S.W.2d 407 , 412 (Ky. 1987). _

14

COUNSEL FOR APPELLANT:

Shannon Renee Dupree
Assistant Public Advocate

COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Joseph Todd Henning
Assistant Attorney General

15

