Barrett v. Commonwealth
| Docket Number | 2022-SC-0068-MR |
| Decision Date | 24 August 2023 |
| Parties | JASON BARRETT APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | United States State Supreme Court — District of Kentucky |
An Ohio County grand jury indicted Jason Barrett on ten counts of first-degree sexual abuse for actions perpetrated against his stepdaughter, K.V., a minor at the time of the sexual abuse.[1] K.V.'s mother, Katherine Barrett, was also indicted on multiple counts of complicity to the sexual abuse.[2] Barrett and Katherine were tried jointly. Before the trial commenced, one count of sexual abuse against Barrett was dismissed. A jury found both Barrett and Katherine guilty of all other counts. Barrett was sentenced to 20 years in prison. He appealed his conviction to this Court as a matter of right. See KY. CONST. § 110(2)(b). After careful review of the record, we affirm the Ohio Circuit Court.
This case involves nine incidents of sexual abuse that occurred between February 10, 2016, and December 5, 2018. When Barrett committed these acts, the victim, K.V., was between the ages of 15 and 17. During this period, K.V. lived in the same household as Barrett, Katherine, her older sister E.M., and her three younger siblings. When K.V. was living with Barrett and Katherine she also had an older boyfriend who lived in Georgetown, Kentucky. K.V. told her boyfriend about the sexual abuse and showed him some of her diary entries recalling events surrounding the abuse.
In December 2018, K.V. wanted to stay with her boyfriend for two weeks around the holidays. At first Barrett and Katherine said yes but objected when she wanted to stay longer. Their objection was because she was only 17 years old. Around the same time, K.V.'s boyfriend reported the sexual abuse to his teacher on December 6, 2018.
When K.V.'s boyfriend reported the sexual abuse to his teacher, the teacher contacted the Cabinet for Health and Family Services. The aforementioned report led to a welfare check at the Barrett home by deputies with the Ohio County Sheriff's Department on December 6, 2018. K.V., fearing a truthful disclosure would lead to her and her siblings being placed in foster care, denied that any abuse occurred. The police conducted another interview with K.V. outside of the home on December 7, 2018, where she then told Detective Katie Pate that she was sexually abused by Barrett.
Detective Pate also interviewed Barrett and Katherine. Barrett admitted to touching K.V. on the buttocks but claimed it was not sexual. Katherine initially denied seeing Barrett touch K.V. inappropriately but later admitted seeing him touch her buttocks. Katherine insisted that the touching was not sexual.
At trial, K.V. testified to the nine incidents of sexual abuse and read aloud from her diary entries. Barrett testified in his own defense and denied he sexually abused his stepdaughter. Katherine testified she never knew or saw Barrett touch K.V. inappropriately. E.M. testified she shared a room with K.V. who never told her anything about Barrett sexually abusing her.
After two days of trial, the jury found Barrett guilty of all nine counts of first-degree sexual abuse, and Katherine guilty of two counts of complicity to sexual abuse. The trial court sentenced Barrett to a total of twenty years in prison. Barrett now appeals to this Court as a matter of right alleging multiple errors.
On appeal, Barrett alleges multiple errors by the trial court warranting reversal of his conviction. First, he argues the Commonwealth engaged in flagrant prosecutorial misconduct when the prosecutor told the jury in closing argument, "[t]hat presumption of innocence, I would submit to you is gone because you've heard the proof beyond a reasonable doubt." Second, he argues the trial court erroneously allowed K.V. to read from printed screenshots of her iPad diary. Third, Barrett argues the trial court erred by allowing the Commonwealth to ask a witness to comment on the credibility of another witness. Fourth, he argues the jury instructions violated his right to a unanimous verdict. Finally, Barrett argues this Court should overturn his conviction based on cumulative error. We discuss each argument in turn.
Barrett argues the Commonwealth engaged in flagrant prosecutorial misconduct during its closing argument. Specifically, he argues that the flagrant prosecutorial misconduct occurred when the prosecutor told the jury that the "presumption of innocence, I would submit to you is gone because you've heard the proof beyond a reasonable doubt." Barrett argues that single comment was flagrant prosecutorial misconduct and violated his right to a fair trial.
"Prosecutorial misconduct is 'a prosecutor's improper or illegal act involving an attempt to persuade the jury to wrongly convict a defendant or assess an unjustified punishment.'" Commonwealth v. McGorman, 489 S.W.3d 731, 741-42 (Ky. 2016) (quoting Noakes v. Commonwealth, 354 S.W.3d 116, 121 (Ky. 2011)). "If the misconduct is objected to, we will reverse on that ground if proof of the defendant's guilt was not such as to render the misconduct harmless, and if the trial court failed to cure the misconduct with a sufficient admonition to the jury." Duncan v. Commonwealth, 322 S.W.3d 81, 87 (Ky. 2010). However, if no objection is made, the Court "will reverse only where the misconduct was flagrant and was such as to render the trial fundamentally unfair." Id. (citations omitted).
No contemporaneous objection was made, and Barrett concedes that this issue is unpreserved. Because the issue is unpreserved, Barrett requests we review it for palpable error. See RCr 10.26.
(emphasis added). In support of his argument, Barrett cites to a Washington
Court of Appeals decision that reversed the defendant's conviction because the prosecutor made repeated improper comments in closing, including that the presumption of innocence "kind of stops once you start deliberating." State v. Evans, 260 P.3d 934, 938 (Wash.Ct.App. 2011). Barrett argues that in Kentucky "every person accused of committing a crime is entitled to the presumption of innocence and to have such presumption continue until guilt[] is proven beyond a reasonable doubt." Newkirk v. Commonwealth, 937 S.W.2d 690, 695 (Ky. 1996). Overall, Barrett asserts the Commonwealth's comment was flagrant prosecutorial misconduct because it was a misstatement of the law that "seriously dilutes the State's burden of proof" and "render[ed] the trial fundamentally unfair." See Evans, 260 P.3d at 939; Brafman v. Commonwealth, 612 S.W.3d 850, 861 (Ky. 2020) (citation omitted).
Prosecutorial misconduct can occur through an improper closing argument. Dickerson v. Commonwealth, 485 S.W.3d 310, 329 (Ky. 2016) (citing Duncan v. Commonwealth, 322 S.W.3d 81, 87 (Ky. 2010)). Any allegation of misconduct must be viewed in the context of the overall fairness of the trial. McGorman, 489 S.W.3d at 742 (citing St. Clair v. Commonwealth, 451 S.W.3d 597, 640 (Ky. 2014)). To justify reversal, the Commonwealth's misconduct must be "so serious as to render the entire trial fundamentally unfair." Soto v. Commonwealth, 139 S.W.3d 827, 873 (Ky. 2004) (quoting Stopher v. Commonwealth, 57 S.W.3d 787, 805 (Ky. 2001)).
This Court holds that the Commonwealth's comment in its closing argument "that presumption of innocence, I would submit to you is gone because you've heard the proof beyond a reasonable doubt" is prosecutorial misconduct. Prosecutors have wide latitude in closing and are free to draw any and all reasonable inferences from the evidence. Murphy v. Commonwealth, 509 S.W.3d 34, 50 (Ky. 2017) (citations omitted). However, prosecutors do not have latitude to "shift the burden of proof" or "contravene the presumption of innocence" during closing arguments. See Tamme v. Commonwealth, 973 S.W.2d 13, 38-39 (Ky. 1998); Grundy v. Commonwealth, 25 S.W.3d 76, 82 (Ky. 2000). "[T]he presumption of innocence mandates the burden of proof and production fall on the Commonwealth, any burden shifting to a defendant in a criminal trial would be unjust." Butcher v. Commonwealth, 96 S.W.3d 3, 10 (Ky. 2002).
"Every person accused of committing a crime is entitled to the presumption of innocence and to have such presumption continue until guilt[] is proved beyond a reasonable doubt." Newkirk, 937 S.W.2d at 695. Further the presumption of innocence "remains with the defendant through every stage of trial, most importantly, the jury's deliberations," and it is only extinguished upon the jury's determination of guilty beyond a reasonable doubt. United States v. Marin, 31 F.4th 1049, 1055 (8th Cir. 2022) (quoting Kellogg v. Skon, 176 F.3d 447, 451 (8th Cir. 1999)); see also United States v. Crumley, 528 F.3d 1053, 1065 (8th Cir. 2008) ( the prosecutor...
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