         IMPORTANT NOTICE
    NOT TO BE P UBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE ; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE,
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
                                                       CORRECTED : AUGUST 23, 2007
                                                          RENDERED : JUNE 21, 2007
                                                             NOT TO BE PUBLISHED

                                                             e


              ,*uPrenve %ujaurf of it'

                                     2005-SC-000815-MR


ROBERT FLANDERS                                                               APPELLANT


                     ON APPEAL FROM LAUREL CIRCUIT COURT
                     HONORABLE GREGORY ALLEN LAY, JUDGE
                       NOS . 04-CR-000193 AND 05-CR-000089


COMMONWEALTH OF KENTUCKY                                                       APPELLEE


                       MEMORANDUM OPINION OF THE COURT

                                        AFFIRMING


       Robert Flanders was sentenced in Laurel Circuit Court to consecutive terms of

imprisonment of forty (40) years for Wanton Murder' and five (5) years for Tampering

with physical evidence .2 Appealing as a matter of right,3 Flanders argues that the trial

court committed reversible error by: (1) denying his motion for a directed verdict; (2)

allowing the Commonwealth to misrepresent evidence in its closing argument; and (3)

denying his motion to exclude a photograph of the victim's body. For the following

reasons, we affirm Flanders' convictions .

       This case began on April 1, 2004, when Flanders killed Ray Coleman . Coleman,

Flanders' friend from childhood, was staying in Flanders' trailer. On the evening in

       '   KRS § 507.020(b).
       2 KRS § 524.100.
       3 Ky . Const. § 110(2)(b) .
question, Flanders and his girlfriend, Paula Cheek, were in the trailer when the victim

returned . Tension soon developed between Flanders and Coleman regarding

Coleman's use of the telephone . At this point, Cheek exited the residence and Flanders

followed . After Flanders persuaded Cheek to return, they both re-entered the trailer.

Inside the trailer, Flanders noticed that his pocketknife was missing. Flanders asked

Coleman if he had the knife, and he responded affirmatively .

       Flanders then picked up a nearby butcher's block of kitchen knives, slammed it

on the counter, and told Coleman that if he wanted a knife he could have any one of

them. Flanders then turned to walk toward the bedroom . Coleman stood up with a

cane in one hand and the pocketknife in the other and told Flanders if he wanted the

knife he could come and get it. However, Cheek was unable to remember if the

pocketknife was open or closed. The two men then engaged in a physical altercation

involving pushing and shoving . During the altercation, Flanders jumped on Coleman,

put one arm around his neck, and grabbed a knife from the butcher block with his other

hand. Cheek then ran into the master bedroom and shortly thereafter heard a thump.

When she returned to the kitchen area, she saw Flanders standing over the dying

Coleman .

       Flanders and Cheek then went to see Harold Cornett . Cornett returned with

Flanders and Cheek to the crime scene and helped to clean up the scene and dispose

of the body. Cornett testified that he noticed the pocketknife lying closed on the ground

near the victim's body. Cornett and Flanders wrapped the victim in plastic garbage

bags and disposed of the body a few days later. A few months after the incident, Mrs .

Cheek and Flanders ended their romantic relationship . After Cheek informed the local
authorities of Coleman's death, the police recovered the body with Flanders' assistance.

Flanders' primary defense at trial was that he was acting in self-defense when he

stabbed the victim. However, the jury found Flanders guilty of Wanton Murder and

Tampering with physical evidence . The trial court sentenced Flanders to forty-five (45)

years in prison .

       Flanders' first argument on appeal is that the trial court committed reversible

error by denying his motion for a directed verdict on the charge of wanton murder . "On

appellate review, the test of a directed verdict is, if under the evidence as a whole, it

would be clearly unreasonable for a jury to find guilt. ,,4 In doing so, we must draw all fair

and reasonable inferences from the evidence in the Commonwealth's favor.5

       A person is guilty of wanton murder when "under circumstances manifesting an

extreme indifference to human life, he wantonly engages in conduct which creates a

grave risk of death to another person and thereby causes the death of another person."6

Although Flanders admits to stabbing Coleman, he argues that his belief in the need to

act in self-defense precludes a jury from finding him guilty of wanton murder .

       Under KRS § 503 .050(1), "[t]he use of physical force by a defendant upon

another person is justifiable when the defendant believes that such force is necessary to

protect himself against the use or imminent use of unlawful physical force by the other

person ." As we enumerated in Commonwealth v. Hager, "any actual belief in the need

for self-protection, even if wantonly or recklessly held, also precludes a conviction for

wanton murder, because such belief negates the aggravating element of `extreme


       4 Commonwealth v. Benham, 816 S.W.2d 186,187 (Ky. 1991) .
       5
         Id.
       6 KRS § 507 .020(1)(b) .
indifference to the value of human life ."'' Thus, if Flanders subjectively believed in the

necessity of self-defense, even if that belief was wantonly or recklessly held, he could

not be convicted of wanton murder .

       Additionally, KRS § 503 .060(3) provides that the use of physical force in self-

defense is not justifiable if "[t]he defendant was the initial aggressor." In such a

situation, self-defense is not applicable unless (a) the initial physical force was

nondeadly and the force returned by the other is such that he believes himself to be in

danger of death or serious physical injury or (b) the defendant withdraws from the

encounter.

       A directed verdict would not have been proper if the evidence, viewed in the light

most favorable to the Commonwealth, provides a reasonable basis for the jury to

conclude that Flanders did not actually believe that he was acting in self-defense or, in

the alternative, that Flanders was the initial aggressor . Upon viewing the evidence as a

whole, we cannot say that the jury's determination was clearly unreasonable. First,

there was sufficient evidence for the jury to conclude that Flanders did not subjectively

believe in the need for self-defense. Testimony at trial detailed that the victim had

trouble walking, that the pocket knife in the victim's possession was not open, and that

Flanders took extensive measures to conceal the victim's death . Further, there was

testimony that the victim was not intoxicated and that Flanders may have been the initial

aggressor or may have escalated the violent encounter. Moreover, the trial court

properly instructed the jury on the justification of self-defense, including the fact that an

actual belief in the need for deadly force, even if wantonly or recklessly held, precludes

       7 41 S.W.3d 828, 842 (Ky. 2001) .
       8 KRS § 503 .060 .
a wanton murder conviction. Properly instructed, the jury determined that self-defense

did not justify Flanders' conduct. Under the evidence, we cannot say that this

determination was clearly unreasonable . Therefore, the trial court properly denied

Flanders' motion for a directed verdict on the charge of wanton murder.

       Flanders' second argument on appeal is that during its closing argument, the

Commonwealth misrepresented the testimony of the medical examiner, Dr. Greg Davis .

At trial, Flanders introduced evidence that the victim may have been intoxicated prior to

his death . Dr. Davis testified that while he did not find any alcohol in Coleman's

spleen, he could not say with certainty whether or not Coleman had alcohol in his

body at the time of his death. During its closing argument, the Commonwealth

referred to Dr. Davis' testimony by commenting that he expected to find alcohol in

Coleman's spleen if he had been drinking, but did not find any.

       On appeal, Flanders alleges that the prosecutor's comments were a

misrepresentation of the evidence and warrant a reversal of his conviction . In analyzing

Flanders' claim, we must "determine whether the conduct was of such an `egregious'

nature as to deny the accused his constitutional right of due process of law."9 Further,

we have repeatedly noted that "prosecutors are allowed wide latitude during closing

arguments and may comment upon the evidence presented ."' ° Moreover, Flanders

failed to object to the Commonwealth's statement at trial . Thus, this issue is

unpreserved and we review under RCr 10 .26's palpable error standard .

       Flanders alleges that the Commonwealth effectively told the jury that if Coleman

was drinking, Dr. Davis would have found alcohol in his spleen . However, the

      9 Folev v. Commonwealth , 953 S.W.2d 924, 939 (Ky. 1997) .
      10 Maxie v. Commonwealth , 82 S.W .3d 860, 866 (Ky. 2002).
Commonwealth said that if Coleman was drinking, Dr. Davis expected to find alcohol in

his spleen . The difference is significant in that the Commonwealth's statement did not

preclude the possibility of Coleman's intoxication . The jury previously had the

opportunity to hear the actual testimony of Dr. Davis - that he was uncertain

whether Coleman had alcohol in his body at his time of death based in part

because he did not find alcohol in Coleman's spleen . The prosecutor's statement

only implied that had Dr. Davis found alcohol in Coleman's spleen he would have

known with certainty that Coleman had been drinking . This is certainly a

permissible comment based upon the evidence for a prosecutor to make, and did

not so misrepresent Dr. Davis's testimony to cause manifest injustice . Thus, we

find no error, palpable or otherwise, in the Commonwealth's closing argument.

            Flanders' final argument is that the trial court denied him due process by

allowing the Commonwealth to introduce into evidence, over objection, an 8 1/2" x 11"

color photograph of Coleman's decomposed body lying on an autopsy table. Flanders

argues that the picture was inflammatory and unnecessary as the defense was willing to

stipulate to the nature of the injuries .

       We have held that "[t]he general rule is that a photograph, otherwise admissible,

does not become inadmissible simply because it is gruesome and the crime is

heinous."' 1 Further, "the defendant may not stipulate away the parts of the case that he

does not want the jury to see . "12 We have deviated from this general rule when

photographs show mutilation, decomposition, and decay not directly related to the



       11
            Funk v. Commonwealth , 842 S .W.2d 476, 479 (Ky. 1992) .
       12
            Barnett v. Commonwealth , 979 S .W.2d 98, 103 (Ky. 1998) .
crime.. In reliance on Funk, Flanders argues that the picture was not relevant and

unnecessarily gruesome given the decomposed state of the body.

       Flanders' argument fails, however, because the decomposition he complains of

resulted from his own efforts to conceal Coleman's death . As discussed in Folev ,

photographs of this nature are especially relevant to show the measures taken to

conceal the crime . 14 Moreover, the Commonwealth introduced only one (1) photograph

and chose the least gruesome photo available . Upon viewing the photograph, we

confidently conclude that the trial court did not abuse its discretion in admitting this

evidence . Thus, the introduction of the photo did not deny Flanders due process of law.

       For the aforementioned reasons, we affirm Flanders' conviction .

       All sitting . All concur.




       13
            Funk, 842 S.W.2d at 479.
       14
            Folev, 953 S.W .2d at 935 .
COUNSEL FOR APPELLANT:

Randall L. Wheeler
Assistant Public Advocate
Department of Public Advocacy
Suite 302, 100 Fair Oaks Lane
Frankfort, KY 40601



COUNSEL FOR APPELLEE:

Gregory D . Stumbo
Attorney General of Kentucky

William Robert Long, Jr .
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
         ' $ixpreme ~Vurf a£                           Rrufurhv
                               2005-SC-000815-MR


ROBERT FLANDERS                                                       APPELLANT


                    ON APPEAL FROM LAUREL CIRCUIT COURT
                    HONORABLE GREGORY ALLEN LAY, JUDGE
                      NOS. 04-CR-000193 AND 05-CR-000089


COMMONWEALTH OF KENTUCKY                                                APPELLEE


                 ORDER DENYING PETITION FOR REHEARING
                        AND MODIFYING OPINION


       The petition for rehearing filed by the Appellant, Robert Flanders, is

hereby denied.

       The Opinion of the Court rendered herein on June 21, 2007, is modified by

changes to pages 5 and 6 of that opinion . Due to pagination, the attached

unpublished opinion substitutes in full for the previously rendered opinion . Said

modification does not affect the holding .

       All sitting . Lambert, C.J. ; Cunningham, Minton, Noble, Schroder and Scott,

JJ ., concur.

                ENTERED : August 23, 2007 .
