Appellant Beckham B. (“B.B.”) Barnes was convicted by a Wayne Circuit Court jury of intentionally killing Troy Miller, for which he was sentenced to twenty-two years in prison. He appeals to this Court as a matter of right. Ky. Const. § 110(2)(b). We reverse and remand for a new trial because the prosecutor’s closing argument violated Appellant’s right to a fair trial.
I. FACTS.
Appellant admitted killing Miller but contendеd that he did so in self-defense. Appellant and Miller were friends and had a business relationship. Appellant was a civil engineer and land surveyor, and had hired Miller as an apprentice shortly after Miller graduated from high school. After several years, Miller started his own business. However, he continued to seek Appellant’s assistance and to use the maps, computеr, and other equipment in Appellant’s office. When Miller did seek Appellant’s help on a project, he would pay Appellant a fee of twenty percent.
Appellant was helping Miller with such a project at Appellant’s office on the evening of April 1, 1999. The office computer showed initial activity on that project from 9:45 p.m. until 10:07 p.m. However, whеn the two finished, Appellant would not permit Miller to print the project. Apparently, they had agreed to settle their accounts on a quarterly basis, but Miller had not paid Appellant for his assistance for the last quarter of 1998 and the first quarter of 1999. Appellant told Miller that he could print the project only when he paid Appellant what he owed. According to Appellant, Miller did not seem overly upset by this interdiction and left the office peacefully. Appellant also went home (his residence is across the road from the barn constituting his office) and fell asleep watching television.
Appellant alleged that he was awakened sometime in the early morning hours of April 2, 1999, by the sound of his dog barking. The dog led him to his office. Thе night was foggy, but Appellant saw movement by the light of the office computer screen. He crept towards the office, opened a door, and yelled “freeze.” He heard loud gunshots, returned fire with a rifle that he kept in the office, and ran *566 back to his residence, where he informed his wife, Paula Barnes, that it appeared that he had shot an unidentified intruder. Apрellant claimed that he did not realize that Miller was the intruder until he was informed of that fact sometime later that morning.
Paula Barnes called the “911” emergency operator at 2:13 a.m. She reported to the operator that a male had been shot, but gave little other information. Law enforcement authorities arrived at approximately 2:38 a.m. Deputy Shеriff Garner testified that it was so foggy he had to shine his spotlight on the ditches in order to stay on the roadway. The police described Appellant and his wife as relatively “close-lipped.” Appellant testified at trial that he did not trust one of the investigating officers, Scott Hammond, whose family had had previous disagreements with the Barnes family. In any event, he told the officеrs little more than that the intruder was “in the barn” and that “I saw him go down.” Appellant then informed the police that he would not say anything else until his lawyer arrived. He refused a gunshot residue test. Paula Barnes had also called Appellant’s parents, Wilbur and Margie Barnes, who arrived at their son’s residence shortly after the police.
Police found Troy Miller dead on the floor of Appellant’s office. He had been killed by two shots to the chest from a hunting rifle. Next to Miller’s hand was a .38 caliber pistol, which police later determined was owned by Miller’s girlfriend, Kathy Wade. Three spent rounds from the .38 caliber pistol were found embedded in the walls and shelving of the office, including one in the doorframe where Appellant alleged that he had enterеd the office. The pistol was later determined to be an “emitter,” i.e., it had a tendency to emit antimony, but a gunshot residue expert found an “insignificant” amount of antimony on Miller’s hands. However, she clarified that “this does not eliminate the possibility that [Miller] handled or discharged a firearm.” No fingerprints were found on that pistol. The pistol also appeared to the police to be clean of blood, although no formal test was ever conducted to confirm this observation.
The office computer’s internal log showed that there had been additional activity on Miller’s project beginning at 12:40 a.m. and ending at 1:52 a.m. The police found Miller’s truck parked one-half mile away from the office at a house used by the community, including Miller and Aрpellant, for activities like hunting. Police found a second gun wrapped in a T-shirt in Miller’s truck which had no discernable relevance to Miller’s death except that Appellant had owned a gun of the same make and model 1 and the serial numbers had recently been filed off the gun. A solitary shaving from the filings of that gun was found on a sock Miller was wearing when he died. No shavings were fоund on the clothes Appellant was wearing at the time of his arrest. This gun had not been recently fired.
The Commonwealth’s theory was that Appellant had “cold-bloodedly” killed Miller and afterwards “doctored” the crime scene with the help of his father. Under this theory, Wilbur Barnes arrived before the law enforcement officers. Wilbur then filed the serial numbers off the gun that was eventuаlly found in Miller’s truck with *567 the intention that it would serve as the “throw-down” gun. However, after the filing was complete, they discovered Wade’s pistol in Miller’s truck, and decided to use that as the “throw-down” weapon instead. They then left the first gun in Miller’s truck and went to the crime scene, fired three shots from Wade’s pistol into the walls and shelving of the office, wiped the pistol clean of fingerprints, аnd placed it next to Miller’s hand, being careful not to leave any footprints in the blood pooling on the floor. The two then drove Miller’s truck to the house one-half mile away, and returned together to Barnes’s residence. Wilbur Barnes then drove home to clean up before returning to Appellant’s residence, arriving shortly after the police.
In support of its thеory that Appellant had doctored the crime scene, the Commonwealth offered law enforcement testimony that Wilbur Barnes was alone when he drove into Appellant’s driveway. This was inconsistent with Wilbur and Margie Barnes’s testimony that they drove together and with the fact that Margie Barnes was present at her son’s home that night. Although Margie testified at the grand jury procеeding that she and Wilbur had walked to the house together after parking, both Wilbur and Margie testified at the trial that Wilbur had first dropped Margie off at the house and then parked. The Commonwealth also argued that because Margie Barnes had heard her son invoke his rights to counsel and silence to an officer, and that Appellant had invoked his rights to an officer before Wilbur arrived, Margie must have been present at the house before Wilbur arrived. Defense counsel pointed out that Appellant invoked his rights to several officers that night at several different times.
There was no evidence that Appellant had any motive to kill Miller, although the prosecutor noted during closing argument that Appellant and Miller were business competitors and speculated that Appellant would get more business if Miller were out of the way.
II. CLOSING ARGUMENT.
We need not address every improper argument in the summation. Suffice it to say that the trial judge sustained twenty-nine objections during the prosecutor’s closing argument and admonished the jury eleven times. Many of the sustained objections pertained to misstatements of the evidence. Others inсluded a reference to the fact that the prosecutor’s son was a state trooper, and a comparison of this case to the O.J. Simpson trial. The most egregious, however, and one to which defense counsel’s objection was overruled, was the prosecutor’s statement to the jury that to acquit Appellant would be a crime worse than murder.
Ladies and Gentlemen there would be only one crime greater than this, the brutal taking of the life of Troy Miller. And that would be to allow this man to pull the wool over the eyes of Justice, and walk out of here with his liberty when he took this man’s life.
Our cases have consistently held that a prosecutor may not imply that an acquittal would be equivalent to a criminal act. In reversing becаuse of improper closing argument, our predecessor Court held in
Meland v. Commonwealth,
Ky.,
Such an argument is not an argument on the evidence and serves no purpose other than to inñame the jury. As noted in
Napier,
the Commonwealth’s Attorney is “an officer of the law, who has taken an oath to see that the law is enforced properly.”
[T]he averagе jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently,.improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight. against the accused when they should properly carry none.
Berger v. United States,
The error was not harmless. Following the Court of Appeals for the Sixth Circuit, we reverse for prosecutorial misconduct in a closing argument only if the misconduct is “flagrant” or if each of the following three conditions is satisfied:
(1) Proof of defendant’s guilt is not overwhelming;
(2) Defense counsel objected; and
(3) The trial сourt failed to cure the error with a sufficient admonishment to the jury.
United States v. Carroll,
Proof of Appellant’s guilt was not overwhelming. The prosecutor’s case, in fact, focused largely on the fact that Appellant had invoked his right to counsel and declined to provide police with all the information necessary to their investigation. Indeed, the prosecutor told the jury during closing argument that Appellant’s invocation of his rights had the effect of sending the officers “into harm’s way” (assuming there had been more than one gunman in the barn or that the shooter was still alive), using that occasion to insert the extra-judicial information that his own son was a state trooper.
See Bowler v. Commonwealth,
Ky.,
The theory that Appellant and his father doctored the crime scene, while not inconsistent with the evidence, was also not syllogistic. No telephone records contradicted Paula Barnes’s testimony that she did not call Wilbur and Margie Barnes until after calling the 911 operator. The computer’s internal log showed that the additional аctivity on Miller’s project ended at 1:52 a.m. The 911 call began at 2:13 a.m., and the police arrived at 2:38 a.m. The Barnes families lived six miles apart. Thus, the jury was required to believe that in less than twenty-five minutes, Wilbur Barnes was awakened by Paula’s call, dressed, got in his vehicle along with his wife, drove six miles in a dense fog, helped Appellant (at least) 3 drive Miller’s truck to a location onе-half mile away, then drove back home to clean up, returning to Appellant’s residence a few minutes after the police arrived. Even if Paula had called Wilbur and Margie before she called the 911 operator, only a few more minutes could have been added to the time line.
Nor was a credible motive ever established.' The jury was forced to base its verdict almost entirely upon its disbelief of Appellant’s account of the incident. Accordingly, the evidence of Appellant’s guilt was not “overwhelming,” thus the prejudicial statement made by the prosecutor requires reversal in accordance with Bess and Carroll, supra.
Although we are reversing this case on the “acquittal is equivalent to murder” argument, we choose also to address the prosecutor’s repeated reference to the O.J. Simpson trial. The first reference had occurred during the prosecutor’s cross-examination of Appellant. Defense counsel’s objection to that reference was sustained and the trial judge admonished the jury not to consider it. Nevertheless, the prosecutor made the same referеnce again during closing argument. A similar reference has been held to require reversal.
See DeFreitas v. State,
III. DIRECTED VERDICT.
Appellant also claims that the evidence was insufficient to convict him and that the triаl court should have directed a verdict of acquittal. 4 We disagree.
Rarely is a defendant relying upon self-defense entitled to a directed verdict. Only in the unusual case in which the evidence conclusively establishes justification and all of the elements of self-defense are present is it proper to direct a verdict of not guilty.
West
v. Commonwealth,
Ky.,
Although the evidence against Appellant was not overwhelming, it was sufficient to allow a reasonable jury to believe beyond a reasonable doubt that Appellant did not shoot Miller in self-defensе.
Commonwealth v. Benham,
Ky.,
The cases cited by Appellant are inappo-site.
Holcomb v. Commonwealth,
Ky.,
Accordingly, the. judgment of conviction and the sentence imposed are reversed and this case is remanded to the Wayne Circuit Court for a new trial.
Notes
. Appellant claimed that he had given that gun (of the same mаke and model as the gun found in Miller’s truck) to a woman with whom he had had an affair, that this woman had given the gun to Miller, and that Miller had in turn paid Appellant for the gun. However, while the woman admitted that she had given a gun to Miller, she denied that the gun she had given to Miller was the same gun as the one found in the truck.
. We have not been asked specifically to address the propriety of this аrgument, and therefore avoid deciding this difficult and complicated question. We note, however, that there is a split among the federal Courts of Appeals as to whether the
substantive
use of prearrest silence is constitutionally permitted.
See Combs v. Coyle,
. The prosecutor also declared in summation that he believed that Wilbur Barnes had filed the serial numbers off the gun found in Miller’s truck, and, presumably, planted the shaving that was found on Miller’s sock. Howevеr, the jury might have concluded that Miller had filed the serial numbers for some reason unrelated to the incident, or that Appellant had done so while Wilbur was in transit (though no shavings were found on Appellant’s clothing).
. The trial log and the trial judge’s affidavit make it clear that a motion for a directed verdict was made and denied in addition to &e motion for judgment notwithstanding the verdict, despite the fact that the motion for a directed verdict was not videotaped.