David Albert Soloway v. Commonwealth of Kentucky, 2016 SC 000290

Background

Victim ("Joyce") was 7 at the time of the alleged abuse; testimony described two acts of sodomy and one act of sexual abuse by David Soloway while the child lived with the victim's mother and Soloway.
After disclosure to family and school, police became involved; Soloway briefly fled but later surrendered; grand jury indicted for multiple sexual offenses and PFO status.
At trial, Joyce testified via closed-circuit television under KRS 421.350; her brother similarly testified remotely; defense objected and was overruled.
On cross-examination Soloway admitted he would have spoken to police pre-arrest; questioning touched on his post-arrest silence and presence of counsel; defense did not object at that time.
In closing, the prosecutor commented repeatedly on Soloway’s post-arrest silence (arguing an innocent person would have spoken), used the term "escalating," became emotional, and described the physical nature of the acts; defense objected to some remarks but not all.
Jury convicted Soloway of two counts of first-degree sodomy, one count of first-degree sexual abuse, and first-degree PFO; sentenced to 45 years. Kentucky Supreme Court reversed and remanded due to prosecutorial comment on post-arrest silence.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Prosecutorial comment on post‑arrest silence (closing)	Commonwealth: comment addressed testimony and impeachment value of pre‑arrest silence; fair to argue demeanor and credibility.	Soloway: prosecutor improperly penalized invocation of Fifth Amendment and equated silence after arrest with guilt; deprived him of a fair trial.	Reversed — comments on post‑arrest silence were flagrant misconduct, prejudicial, warranted new trial.
Cross‑examination about willingness to talk to police (pre‑arrest)	Commonwealth: permissible impeachment after defendant volunteered willingness to speak pre‑arrest; explorations of pre‑arrest silence allowed.	Soloway: challenged line but did not timely object at trial.	No error on cross‑examination; questioning of pre‑arrest silence permissible.
Closed‑circuit testimony of child witness	Commonwealth: KRS 421.350 permits remote testimony upon finding "compelling need."	Soloway: remote testimony infringed Confrontation Clause and was unnecessary stress avoidance.	Affirmed — trial court did not abuse discretion; compelling need shown for remote testimony, but court should re-evaluate at retrial.
Other prosecutorial conduct ("escalating," emotion, vivid description)	Commonwealth: emotional display and descriptions were natural, within leeway of closing; word "escalating" was inadvertent.	Soloway: statements were prejudicial, violated trial court order, and improperly inflamed jury.	Mostly no reversible error: "escalating" use was isolated and not flagrant; emotional display and descriptive remarks were within permissible bounds.

Key Cases Cited

Maxie v. Commonwealth, 82 S.W.3d 860 (Ky. 2002) (standards for reviewing prosecutorial misconduct)
Barnes v. Commonwealth, 91 S.W.3d 564 (Ky. 2002) (closing-argument misconduct framework)
West v. Commonwealth, 780 S.W.2d 600 (Ky. 1989) (timely objection rule for appellate review)
Bowers v. Commonwealth, 555 S.W.2d 241 (Ky. 1977) (preservation of issues by objection)
Hannah v. Commonwealth, 306 S.W.3d 509 (Ky. 2010) (definition of flagrant prosecutorial misconduct)
Jenkins v. Anderson, 447 U.S. 231 (1980) (use of pre‑arrest silence for impeachment)
Combs v. Coyle, 205 F.3d 269 (6th Cir. 2000) (post‑arrest silence limitations)
Mullins v. Commonwealth, 350 S.W.3d 434 (Ky. 2011) (prosecutorial latitude in closing arguments)
Kurtz v. Commonwealth, 172 S.W.3d 409 (Ky. 2005) (abuse‑of‑discretion review for closed‑circuit testimony)
Commonwealth v. English, 993 S.W.2d 941 (Ky. 1999) (standards for abuse of discretion review)
Slaughter v. Commonwealth, 744 S.W.2d 407 (Ky. 1987) (limits on argument and permissible inferences)