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                                                    RENDERED: APRIL 27, 2017
                                                       NOT TO BE PUBLISHED




                                                          l!E~2'1/17 f<rrn 0ab,won,
                                   2016-SC-000290-MR[Q)ffi\                           1)C..


DAVID ALBERT SOLOWAY                                                APPELLANT


                  ON APPEAL FROM CAMPBELL CIRCUIT COURT
V.                HONORABLE JULIE REINHARDT WARD, JUDGE
                              No. 15-CR-00469

COMMON\!{EALTH 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 thatjudgment as a matter of right.I Because we hold that the

prosecution's comment in its closing argument on Soloway's pos_t-arrest silence

constitutes a palpable error that substantially undermines the fairness ofthe

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.

                                       2
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 Lanthome, who instructed him not

to talk about it and that they would move from Soloway's residence. Lanthome

confirmed this account with Joyce, yet again instructed her to say nothing

until Lanthome figured out what to do. This led Lanthome 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, Lanthome 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.



                                        3
                                   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. His 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.

                                        4
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 inapprop.riate and abusive conduct unbefitting a prosecuting attorney,

rendering his trial fundamentally unfair.

      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: (1) proof of the defendant's guilt is n.ot overwhelming; (2) defense

counsel objected; and (3) the trial court failed to cure the error with a sufficient

admonishment to thejury.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   Maxie v. Commonwealth, 82 S.W.3d 860, 866 (Ky. 2002).
      • Eames v. Commonwealth, 91 S.W.3d·564, 568 (Ky. 2002).
      s   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 rf misconduct is flagrant. 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 circumstances.a 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



      1   Hannah v. Commonwealth, 306 S.W.3d 509, 518 (Ky. 2010).
      a 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 oth_er issues. Because

those claims are capable of repetition in the event of retrial, we now consider

those issues in tum.

   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. Commonwealth, 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 a.nd 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).
      1a   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).
      11    Id.
       1aSee George v.. Commonwealth, 885 S.W.2d 938, 941 (Ky. 1994) ("The
Kentucky statute does not provide a blanket process for talcing 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 421.350 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'c!osing 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.

   l. 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 deferise 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.

         It 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 ruHng, 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."1 9 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 e_motion i.vhen 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 descril)ed 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 o·n 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.3d 434, 439 (Ky. 2011).
         21   Slaughter u. Commonwealth, 744 S.W.2d 407, 412 (Ky. 1987).

                                                14
COUNSEL FOR APPELLANT:

Shannon Renee Dupree
Assistant Public Adv:ocate


COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Joseph Todd Henning
Assistant Attorney General




                               15
