Cole D. Ross v. Commonwealth of Kentucky
2016 SC 000287
| Ky. | Nov 29, 2017Background
- Cole D. Ross was tried three times for murder of Keith Colston and first‑degree arson; prior reversal issued for a Batson violation; at the third trial Ross was convicted and sentenced to two concurrent life terms.
- Victim Keith Colston was found dead in a burned home; forensic evidence indicated deliberate arson and presence of a medium petroleum distillate consistent with charcoal lighter fluid.
- Commonwealth’s case relied heavily on eyewitness Tonya Simmons, a former partner of Ross, who testified she saw Ross take lighter fluid into the burning house, leave in his car, and that she delayed reporting for three days.
- Ross presented a different timeline: he claimed he left the house earlier, bought beer later, learned of the fire from others, and had an alibi inconsistent with Simmons’ account.
- Ross appealed, arguing (1) the eyewitness was inherently unbelievable so he was entitled to a directed verdict, (2) a mistrial was required because of a pretrial news broadcast, and (3) the prosecutor’s closing comment was improper.
Issues
| Issue | Plaintiff's Argument (Ross) | Defendant's Argument (Commonwealth) | Held |
|---|---|---|---|
| Directed verdict based on witness incredibility | Tonya Simmons was so unreliable and inconsistent that her testimony should be disregarded as a matter of law, leaving insufficient evidence to convict | Simmons’ testimony, though impeachable, was not inherently impossible and could support a jury verdict; credibility is for the jury | Court held testimony was not inherently implausible or impossible; credibility for jury; no directed verdict owed |
| Mistrial for news report seen by jurors | Broadcasted interview with prosecutor could prejudice jurors and required mistrial | Jurors were admonished and none admitted seeing the broadcast; presumption that jurors follow instructions; no actual prejudice shown | Denial of mistrial affirmed; no manifest necessity or actual prejudice established |
| Prosecutor’s improper closing comment | Comment invited jury to send a message to Graves County, prejudicing deliberations and requiring reversal | Trial court sustained objection and instructed jury to disregard; appellant sought no further relief; judicial admonition presumed effective | Court found admonition sufficient; any error harmless; no reversal warranted |
| Competence vs. credibility boundary | Ross argued witness’ deficiencies effectively rendered her testimony incompetent | Commonwealth argued KRE 601 presumes competence; disqualification should be rare and credibility issues go to jury | Court reiterated competence is narrow; witness remained competent; credibility determinations belong to the jury |
Key Cases Cited
- Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991) (standard for directed verdict of acquittal)
- Daulton v. Commonwealth, 220 S.W.2d 109 (Ky. 1949) (testimony may be disregarded only when inherently incredible)
- Coney Island Co. v. Brown, 162 S.W.2d 785 (Ky. 1942) (evidence contrary to physical laws may be disregarded)
- Louisville & N.R. Co. v. Chambers, 178 S.W. 1041 (Ky. 1915) (jury may not rely on testimony inherently impossible under physical facts)
- Davis v. Commonwealth, 162 S.W.2d 778 (Ky. 1942) (weight of evidence and alibi issues may warrant new trial)
- McDaniel v. Commonwealth, 415 S.W.3d 643 (Ky. 2013) (credibility is province of jury)
- Brewster v. Commonwealth, 568 S.W.2d 232 (Ky. 1978) (prejudice from publicity must be shown absent clear implication)
- Sheppard v. Maxwell, 384 U.S. 333 (U.S. 1966) (media coverage can prejudice fair trial but press plays role in public trials)
- Estes v. Texas, 381 U.S. 532 (U.S. 1965) (procedures inherently prejudicial may violate due process)