Daniel Lee Moss v. Commonwealth of Kentucky
531 S.W.3d 479
Ky.2017Background
- Daniel Moss shot Shawn Thompson at Moss's home; Moss contacted 911 claiming he had been attacked and had to shoot in self-defense.
- Officers separated witnesses; Sarah Sanders loudly accused Moss: "You shot him in the back for no reason." Moss, while talking to a deputy, did not directly reply to that outburst.
- Moss was indicted for murder and tampering with physical evidence; the jury acquitted him of murder but convicted him of second-degree manslaughter (imperfect/self-defense theory) and tampering with evidence.
- Trial evidence included Sanders’ out-of-court accusation introduced by the Commonwealth as an adoptive admission (admission by silence).
- The Court of Appeals affirmed convictions but vacated the tampering sentence’s penalty phase; the Kentucky Supreme Court granted review to address (1) admissibility/use of Moss's silence as an adoptive admission and prosecutor commentary about that rule, and (2) whether pre-arrest silence was improperly used.
- The Supreme Court held the admission of Sanders’ accusation as an adoptive admission was erroneous but harmless, found the prosecutor improperly explained the adoptive-admission rule to the jury (opening sustained; closing unpreserved but not manifest error), and rejected claims that pre-arrest silence was used improperly when the Commonwealth compared Moss’s inconsistent pretrial statements.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Moss) | Held |
|---|---|---|---|
| Admissibility of Sanders' accusation as an adoptive admission under KRE 801A(b)(2) | Sanders’ accusation and Moss’s silence manifested adoption; admissible as adoptive admission. | Moss’s conduct did not manifest adoption because he was already speaking to deputies and had no natural call to contradict Sanders’ interruption. | Error to admit as adoptive admission; abuse of discretion. Error was harmless given jury verdict for imperfect self-defense. |
| Prosecutor's explanation of adoptive-admission law to jury (opening & closing) | Explanation was a correct statement of law and appropriate argument. | Prosecutor improperly instructed jury on legal standard and created a false duty to respond. | Prosecutor overreached; opening statement objection properly sustained. Closing argument error was unpreserved and did not produce manifest injustice. |
| Use of Moss's pre-arrest statements / alleged silence | Comparing Moss’s pre-arrest statements to later statements shows omissions and is substantive evidence of inconsistency. | Use of pre-arrest silence or omissions violated Fifth Amendment and Doyle; testimony improperly commented on silence. | Permissible: testimony described voluntary pre-arrest statements and differences; not a comment on exercise of right to remain silent. No palpable error. |
| Whether evidentiary errors require reversal of convictions | Admission and argument errors prejudiced Moss and affected sentence severity. | Errors undermined fairness and warrant relief. | Errors were harmless; verdict shows jury rejected treating silence as admission. Affirmed on different grounds. |
Key Cases Cited
- Griffith v. Commonwealth, 63 S.W.2d 594 (Ky. 1933) (classic exposition of adoptive-admission rationale)
- Trigg v. Commonwealth, 460 S.W.3d 322 (Ky. 2015) (caution against treating silence as unambiguous)
- Cunningham v. Commonwealth, 501 S.W.3d 414 (Ky. 2016) (silence qualifies only when statements would normally evoke denial)
- Anderson v. Charles, 447 U.S. 404 (U.S. 1980) (police testimony about inconsistent pre-trial statements not treated as commentary on silence)
- Jett v. Commonwealth, 436 S.W.2d 788 (Ky. 1969) (inconsistent statements may be admitted as substantive evidence)