Cole D. Ross v. Commonwealth of Kentucky, 531 S.W.3d 471

Background

Cole D. Ross was tried three times for the murder of Keith Colston and first‑degree arson; earlier convictions were reversed on Batson grounds and the case was remanded for a third trial.
Victim Keith Colston was found burned to death in his home; fire evidence showed deliberate ignition and presence of medium petroleum distillates consistent with charcoal lighter fluid.
Commonwealth's key eyewitness was Tonya Simmons, a former romantic partner of Ross, who testified she left Ross at the Colston home, saw flames, heard Keith call for help, observed Ross carry bottles of lighter fluid into the burning house, and saw Ross drive away; she did not report her observations until three days later.
Ross gave a conflicting statement: he said he left earlier, bought beer later, first learned of the fire from Lisa Colston, and did not witness or participate in setting the fire.
At the third trial Ross was convicted and sentenced to life imprisonment; he appealed arguing (1) trial court erred by denying a directed verdict based on the alleged inherent unbelievability of Tonya, (2) trial court should have granted a mistrial for media coverage, and (3) prosecutor made improper closing remarks.

Issues

Issue	Plaintiff's Argument (Commonwealth)	Defendant's Argument (Ross)	Held
Whether a directed verdict was required because the Commonwealth's sole eyewitness testimony was inherently unbelievable	Tonya's testimony, if credited, sufficiently linked Ross to the arson and murder; credibility is for the jury	Tonya was so implausible/untrustworthy that her testimony had no probative value and must be disregarded as a matter of law	Denied: testimony was not inherently impossible or manifestly without probative value; credibility questions belonged to the jury (Benham standard applies)
Whether a mistrial was required because of a local TV news report about the case	Media report did not reach jurors and did not prejudice the trial	News broadcast quoting the prosecutor could have prejudiced jurors and warranted mistrial	Denied: jurors indicated they had not seen the report; no actual prejudice shown; mistrial not required unless manifest necessity exists
Whether prosecutor’s closing argument improperly urged jurors to consider community sentiment and required reversal	Comments were improper but trial court sustained objection and instructed jury to disregard	Comment improperly appealed to community feelings and risked prejudice	No reversible error: trial court admonished jury and presumption that jurors follow instructions made error harmless; no manifest injustice under RCr 10.26
Whether trial court erred by not striking witness or disqualifying her as incompetent due to demeanor and inconsistencies	Witness was competent to testify; demeanor/ inconsistencies go to weight not competence	Witness was effectively incompetent/unreliable and should have been disallowed or her testimony stricken for directed verdict analysis	Denied: competence under KRE 601 was not shown to be lacking; witness competency and credibility are distinct and credibility is for the jury

Key Cases Cited

Benham v. Commonwealth, 816 S.W.2d 186 (Ky. 1991) (standard for directed verdict and viewing evidence in Commonwealth's favor)
Daulton v. Commonwealth, 220 S.W.2d 109 (Ky. 1949) (testimony inherently impossible may be disregarded as matter of law)
Coney Island Co. v. Brown, 162 S.W.2d 785 (Ky. 1942) (verdict cannot rest on testimony contrary to laws of nature or manifestly without probative value)
Louisville & N.R. Co. v. Chambers, 178 S.W. 1041 (Ky. 1915) (credibility for jury; inherently impossible testimony may be excluded)
Davis v. Commonwealth, 162 S.W.2d 778 (Ky. 1942) (discussing weight of evidence and when verdict may be set aside)
Sheppard v. Maxwell, 384 U.S. 333 (U.S. 1966) (prejudice from media coverage and need for fair trial)
Brewster v. Commonwealth, 568 S.W.2d 232 (Ky. 1978) (change of venue and prejudice from publicity requires showing of likely prejudice)
Johnson v. Commonwealth, 105 S.W.3d 430 (Ky. 2003) (presumption that jurors follow court admonitions)
McDanierl v. Commonwealth, 415 S.W.3d 643 (Ky. 2013) (credibility determinations lie with the jury)
Bart v. Commonwealth, 951 S.W.2d 576 (Ky. 1997) (trial court discretion on witness competency)
Estes v. Texas, 381 U.S. 532 (U.S. 1965) (when publicity inherently denies due process)
Skaggs v. Commonwealth, 694 S.W.2d 672 (Ky. 1985) (mistrial requires manifest necessity)