                                                  RENDERED: NOVEMBER 2, 2017
                                                             TO BE PUBLISHED




                                  2016-SC-000165-DG



DANIEL LEE MOSS                                                          APPELLANT


                     ON REVIEW FROM COURT OF APPEALS
v.                      CASE NO. 2014-CA-001523-MR
                   SIMPSON CIRCUIT COURT NO. 13-CR-00049


COMMONWEALTH OF KENTUCKY                                                  APPELLEE


                                                                                   \

                OPINION OF THE COURT BY JUSTICE VENTERS

                                      AFFIRMING

     1
         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.
                          )
                                           \_



                    I. FACTUAL AND PROCEDURAL BACKGROUND
        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.




                                          2


                                                                                  .I
      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
                                                                                     I

                                                                                     "'-
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.

                                          3
                                    II. ANALYSIS

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

                                            4
  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,
                                             5
      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).

                                            6
      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

                                        7
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

                                         8
 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.

                                             9
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."
                                           10
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

comments.
        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

                                             12
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

                                          13
    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

                                            14
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

relief.




                                          15
                                 · III. CONCLUSION
      For the reasons set forth above, we affirm the Court of Appeals' decision,

although we do so on different grounds.·

      All sitting. All concur.



COUNSEL FOR APPELLANT:

Erin Hoffman Yang
Assistant Public Advocate

.COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Jason Bradley Moore
Assistant Attorney General




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