Moss v. Commonwealth - 531 S.W.3d 479 (Ky. 2017)

Rule:

There is no legal duty to respond to an accusation, and the law does not ordain that one who fails to deny an accusation has legally admitted it. Neither the common law rule of adoptive admissions nor Ky. R. Evid. 801A(b)(2) creates the duty suggested by the prosecutor. In further contradiction of the prosecutor's argument, there is no presumption that in failing to deny an accusation, you're adopting it, you're agreeing to it. The law of adoptive admissions is nothing more than an exception to the hearsay rule that allows in applicable circumstances an otherwise inadmissible out-of-court assertion (that is, the accusation) to be admitted as evidence for whatever probative value it may have against a party whose conduct has manifested an adoption or belief in the truth of the out-of-court statement. Ky. R. Evid. 801A(b)(2). It is not the silence itself that constitutes the statement to be admitted into evidence. The statement that the rule admits into evidence is the audible expression of another person which the defendant heard and to which the defendant's silence manifested an adoption or belief in its truth.

Facts:

Shawn Thompson was shot and killed while he and Sarah Sanders were visiting the Simpson County residence of Appellant and Christina Layle. Appellant informed the 911 operator that he had been attacked in his home and had to shoot his assailant (Thompson). Officers arrived at the scene. When appellant was explaining what had happened, Sanders screamed that appellant shot Thompson at the back for no reason. Appellant made no reply. Appellant later went voluntarily with officers to the sheriff's office where he made a more formal statement. Appellant was indicted for the murder of Shawn Thompson and for tampering with physical evidence. At trial, the jury found him guilty of tampering with evidence, but acquitted him of murder and instead convicted him of the lesser charge of second-degree manslaughter based upon an imperfect self-defense theory: Appellant had an actual but mistaken and wantonly-formed belief that he had to shoot Thompson in order to protect himself (or others) from harm threatened by Thompson. Appellant's sentence was fixed at the maximum term of imprisonment for each crime: 10 years for second-degree manslaughter and five years for tampering with evidence, to be served consecutively. The Court of Appeals agreed with the Commonwealth that Sanders' accusatory statement along with Appellant's failure to deny it, qualified for introduction into evidence under KRE 801A(b)(2) as an adoptive admission. Appellant challenged the decision. 

Issue:

1. Did the accusatory statement qualify for introduction into evidence under KRE 801A(b)(2) as an adoptive admission? 
2. If the statement did not qualify as an adoptive admission, was the erroneous application of the adoptive admission exception to the hearsay rule not a harmless error that would necessitate the acquittal of appellant? 

Answer:

1) No. 2) No.

Conclusion:

The Court held that the appellant would have had no natural call to contradict the witness's outburst when he was then telling his side of the story, and appellant’s failure to verbally protest the witness's accusation did not manifest an adoption or belief in its truth for purposes of Ky. R. Evid. 801A(b)(2), such that admitting the witness's accusation was an abuse of discretion. However, as established by the verdict convicting appellant of second-degree manslaughter, the jury necessarily rejected the inference that he admitted by his silence that he shot the victim for no reason, and thus the erroneous application of the adoptive admission exception to the hearsay rule was harmless. According to the Court, upon a proper application of Rule 801A(b)(2), counsel may encourage a jury to interpret a party's silence as an admission, but telling the jury that the party's silence was an admission was impermissible.