IMPORTANT NOTICE

NOT TO BE PUBLISHED OPINION

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PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),

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ACTION.
RENDERED: MARCH 26, 2020

NOT TO BE PUBLISHED

WILLARD FLYNN APPELLANT

ON APPEAL FROM OWEN CIRCUIT COURT

V. HONORABLE REBECCA LESLIE KNIGHT, JUDGE

NO. 18-CR-00015

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Willard Dempsey Flynn was convicted of first-degree assault, unlawful

imprisonment, unlawful transaction with a minor, possession of a controlled

substance and possession of drug paraphernalia. Pursuant to the jury’s

recommendation, the Owen Circuit Court sentenced him to thirty-eight years.

Flynn now appeals as a matter of right,1 raising two claims of error: 1)

prosecutorial misconduct with respect to his cross-examination and 2)

improper admission of evidence. After review of the record and applicable law,

we affirm Flynn’s conviction.

1 Ky. Const. § 110(2)(b).

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I. Background.

The charges against Flynn arose from his co-habitation with, and abuse

of, his girlfriend at the time, Tabatha Propes; their illicit drug use (including

methamphetamine), and the illicit drug use by a minor who was also residing

in the home. Until February 2018, Propes was living with her grandmother,

Patsy Coleman, after which time she left to go live with Flynn at his friend Jay

Risch’s house. Multiple people were staying at the Risch residence, where illicit

drug use, including methamphetamine, was prevalent. Flynn and Propes

stayed in a room together. According to Propes’s testimony at trial, Flynn

would become physically violent towards her after using methamphetamine

and inflicted multiple head wounds, among other injuries; refused to let her

leave the bedroom without him; and forbade her from leaving the residence.

She said Flynn threatened to kill her if she asked for help from anyone else in

the house or tried to leave.

Prior to staying at Risch’s house, Propes had filed her tax return and in

March 2018 was expecting a refund check to arrive at her grandmother

Coleman’s house. Under Flynn’s supervision, Propes phoned Coleman to see if

the refund check had arrived and on March 15, learned that it had. Propes

informed Coleman that Risch would pick up the check, which he did. On

March 16, Propes convinced Flynn to let her leave the house to cash the refund

check. Propes covered her head with a hat and left the house with another

woman named Candace who was also residing there. Propes and Candace

went to the Walmart in Diy Ridge, at which time Propes called Coleman and

asked her to meet her at the Speedway in Dry Ridge. Her grandmother met her

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and gave her a ride to the Dry Ridge Motor Inn and left her there. Once at the

hotel, Propes took pictures of her head wound, sent them to her friend Carla

and asked Carla to pick her up and take her to the hospital.

At the hospital, Propes presented with a very swollen head containing

large areas of necrotic skin caused by a forceful injury. The hospital called the

police and Trooper Kyle Trosper responded. After learning details from Propes,

Trooper Trosper, along with other officers, went to Risch’s house where they

found Flynn on the floor of the living room, hiding under some blankets. A

pipe containing a burnt crystalline substance was found within arm’s reach of

Flynn, and Flynn admitted it was his meth pipe. Trooper Trosper arrested

Flynn and, while at the residence, encountered ajuvenile who was under the

influence of methamphetamine.

Meanwhile, at the hospital, Propes’s head was drained and she had

surgery to excise the dead tissue. She left the hospital twelve days later with

open wounds on her scalp and in possession of a wound vacuum, which a

home nursing service had to help change. Her treating physician testified that

Propes could have skin grafts then surgery to stretch the remaining scalp

tissue with hair; however, those areas will never regrow hair.

Flynn was indicted for first-degree assault, unlawful imprisonment,

unlawful transaction with a minor, possession of a controlled substance and

possession of drug paraphernalia. Ajury convicted him on all counts,

recommending a total sentence of thirty-eight years, which the trial court

imposed. Flynn now appeals as a matter of right.

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II. Analysis.

a. Flynn’s Cross-Examination.

Flynn asserts that the Commonwealth’s cross-examination of him was

improper because it assumed facts not in evidence and mischaracterized

Coleman’s testimony. This claimed error is unpreserved, thus we review it for

palpable error only under RCr2 10.26 which provides:

A palpable error which affects the substantial rights of a party may

be considered ... by an appellate court on appeal, even though

insufficiently raised or preserved for review, and appropriate relief

may be granted upon a determination that manifest injustice has

resulted from the error.

“Palpable error relief is available under RCr 10.26 only upon a determination

that manifest injustice has resulted from the error. ‘Manifest injustice’ is ‘error

[that] so seriously affect[s] the fairness, integrity, or public reputation of the

proceeding as to be shocking or jurisprudentially intolerable.” Davidson v.

Commonwealth, 548 S.W.3d 255, 261 (Ky. 2018) (quoting Miller v.

Commonwealth, 283 S.W.3d 690, 695 (Ky. 2009)).

Specifically, Flynn challenges an exchange that occurred between him

and the Commonwealth on cross-examination in which the Commonwealth’s

questions indicated that Coleman had previously testified that Flynn and

Propes had moved out of her house because of Flynn’s prior abuse of Propes.

Flynn asserts that Coleman never testified about prior abuse as the reason for

their departure, and that the Commonwealth’s line of questioning, including

2 Kentucky Rules of Criminal Procedure.

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asking him to characterize Coleman’s testimony as “mistaken,” amounted to

“flagrant” prosecutorial misconduct rendering his trial fundamentally unfair.

On cross-examination, the Commonwealth asked Flynn if he had struck

Propes in the head with a wrench and he denied it. After that exchange, the

Commonwealth continued to question him as follows:

CW: You hit her, didn’t you?

Flynn: No, I swear I did not hit Tabatha.

CW: You left her grandmother’s house for that exact same thing,

didn’t you?

Flynn: No, that’s not true.

CW: You were present in the courtroom when her grandmother

testified yesterday, weren’t you sir?

Flynn: Yes ma’am, I was.

CW: And you heard her testimony with regard to why you weren’t

there anymore, didn’t you sir?

Flynn: I didn’t hear her say that.

CW: So, is grandmother mistaken?

Flynn: I don’t know, I never heard her say that yesterday.

The Commonwealth concedes that Coleman did not testify that Flynn’s

abuse of Propes was the reason they stopped living at her house; Coleman

simply stated that they moved out of her house in February 2018. However,

prior to Coleman’s testimony, Propes testified that her grandmother did not

want them staying at her house because Flynn had hit Propes previously.

Thus, the Commonwealth maintains that evidence of a prior assault as the

reason Propes and Flynn left Coleman’s house was in evidence, but was

introduced through Propes rather than Coleman. Accordingly, the

Commonwealth asserts that while its line of questioning could have misled the

jury as to who testified about the prior assault, it did not assert entirely new

evidence.

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“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.” Murphy v. Commonwealth, 509 S.W.3d 34,

49 (Ky. 2017) (internal quotations omitted). “If the defendant failed to object,

however, the Court will reverse only where the misconduct was flagrant and

was such as to render the trial fundamentally unfair.” Id. (internal quotations

omitted).

We employ a four-part test to determine whether a prosecutor’s conduct

was “flagrant”:

(1) whether the remarks tended to mislead the jury or to prejudice

the accused; (2) whether they were isolated or extensive; (3)

whether they were deliberately or accidentally placed before the

jury; and (4) the strength of the evidence against the accused.

Bowling v. Commonwealth, 553 S.W.3d 231, 243 (Ky. 2018).

With respect to the first prong of the test, the long-standing rule is that

“[a] witness should not be required to characterize the testimony of another

witness ... as lying.” Duncan v. Commonwealth, 322 S.W.3d 81, 87 (Ky. 2010)

(citation omitted). Notably here, the Commonwealth did not ask Flynn whether

Coleman had lied, it asked whether she was mistaken. While courts have

distinguished between “mistake” and “lie” for these purposes, we need not do

so now since under the palpable error standard of review, it did not amount to

“flagrant” misconduct for the Commonwealth to ask Flynn if another witness’s

version of events differed from his own, especially since Propes’s allegations of

prior abuse were already in the record. See id. at 88 (“Since Duncan’s defense

was precisely that the three victims had mistakenly identified him, it assuredly

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did not amount to flagrant misconduct for the prosecutor to ask him if they

had to be mistaken for his version of events to be true[.]”); see also United

States v. Gaines, 170 F.3d 72, 82 (1st Cir. 1999) (with respect to the distinction

between “mistake” and “lie,” “[wjhether this avoidance [of the “L” word] would

suffice in all situations, we need not decide now. As [the defendant] did not

object in the district court to these questions . . . our review is limited to plain

error. Clearly that standard was not transgressed[]”).

Further, while the Commonwealth mischaracterized Coleman’s

testimony, it does not appear from the record that it intended to mislead the

jury. Rather, as discussed below, the prosecutor more likely accidentally

confused Coleman’s testimony with Propes’s. Regarding any prejudice to

Flynn, he maintains that Propes’s allegations of prior abuse were bolstered by

the Commonwealth’s insinuation that a third party (Coleman) had witnessed

the abuse, especially since no one else testified to witnessing the abuse.

However, any prejudice to Flynn was likely minimal, as the jury had heard

Coleman’s testimony and knew that she had not identified Flynn’s prior abuse

of Propes as the reason they moved out of her house. That the

Commonwealth’s line of questioning created some confusion on this issue does

not render the trial fundamentally unfair, especially considering the other three

factors of the “flagrancy” test.

Regarding the second and third factors, the Commonwealth’s questions

were isolated, not extensive, and again, likely accidentally placed before the

jury. The entire exchange between the prosecutor and Flynn lasted

approximately twenty-five seconds and was not mentioned again. The isolated

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nature of this exchange is distinguishable from Duncan, upon which Flynn

relies, in which the prosecutor’s improper cross-examination concerning DNA

evidence and misrepresentation of an expert witness’s testimony regarding

DNA evidence during closing arguments (to which the defendant objected)

amounted to flagrant misconduct, “given the aura of conclusiveness that

surrounds DNA evidence,” and the prosecutor’s invitation to the juiy “to be its

own expert—to make inferences that it was not qualified to make and which

amounted to pure speculation.” Duncan, 322 S.W.3d at 92. Here, the evidence

at issue neither involved DNA evidence nor was referred to repeatedly by the

Commonwealth. The brevity of the exchange between the Commonwealth and

Flynn, and the fact that the prosecutor did not expound upon it during closing

arguments, suggests that the prosecutor inadvertently confused Propes’s

testimony with Coleman’s regarding the prior abuse and realized it shortly

thereafter.

Lastly, the evidence against Flynn was extensive. Propes testified to the

abuse that occurred at Risch’s house, including the multiple blows to her head;

Coleman testified that when she went to Dry Ridge to pick up Propes on March

16, Propes was driving Flynn’s vehicle with another female as passenger,

Propes’s eyes were bloodshot and swollen, and Coleman knew something was

wrong; Trooper Trosper testified that the bedroom at Risch’s was as Propes

described and that, in his professional opinion, Flynn was high on meth when

arrested; Jason Johnson, who resided at Risch’s house when Flynn and Propes

were there, testified that the entire time he stayed there he never saw Propes

outside ofthe bedroom without Flynn, he had observed Propes with a black eye

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but did not inquire into it as he had been informed by someone staying at

Risch’s house not to get involved, that Propes usually wore a sock

hat/toboggan indoors, that he had heard arguing from Propes’s and Flynn’s

bedroom, that on March 16 Propes left in Flynn’s car with Candace to go to 

Walmart and never returned, and that once Flynn realized Propes was not in

the car when Candace returned he threatened everyone, warning them that if

they did not help find Propes they would get hurt; and Propes’s treating

physician diagnosed Propes’s injury as a forcible injury to the head.

While no one other than Propes testified to witnessing Flynn assault her,

“[i]t is a well-settled rule in this Commonwealth that a conviction may be

obtained on circumstantial evidence.” Pollini v. Commonwealth, 172 S.W.3d

418, 432 (Ky. 2005) (citation omitted). Under the four-part test used to analyze

whether a prosecutor’s behavior amounts to “flagrant misconduct,” the factors

weigh in favor of the Commonwealth. The prosecutor’s cross-examination of

Flynn did not render the trial fundamentally unfair or result in a manifest

injustice amounting to palpable error. Therefore, reversal on this basis is

unwarranted.

b. The Admission of Commonwealth's Exhibits #38-41.

Flynn claims that the trial court abused its discretion by admitting four

photographs of Propes’s head injuries following surgery. Exhibits #38-39 were

taken on March 19, 2018, directly after surgery, and Exhibits #40-41 were

taken a week later on March 26, 2018. Each set of photographs shows a left

and right-side image of Propes’s injuries post-surgery. Flynn argues that all

four photographs should have been excluded as they were not necessary to the

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Commonwealth’s case and only serve to inflame the jury due to their gruesome

nature, resulting in prejudice to Flynn.

A trial court must evaluate “visual media showing gruesome or repulsive

depictions of victims . . . [by] conducting] the Rule 403 balancing test to

determine the admissibility of the proffered evidence.” Hall v. Commonwealth,

468 S.W.3d 814, 823 (Ky. 2015). Further, “[t]he trial judge is always required

to weigh the probative value of the gruesome photo in question against the

harmful effects that might flow from its admission to determine whether the

photo should be excluded notwithstanding the general rule.” Id. Here the trial

court determined that the post-procedure photos’ probative value outweighed

its prejudicial effect because the procedure was “necessitated by the assault

and resulting injuries.” The trial court made this determination by analyzing

our unpublished decision in Campbell v. Commonwealth, No. 2006-SC-000931-

MR, 2009 WL 737004, at *6 (Ky. Mar. 19, 2009). While Campbell is

unpublished, its holding is persuasive. In that case, we held that a photograph

is not inadmissible for simply showing an injury post-surgery. Id. While the

images in Campbell were not gruesome, whereas the images in the present case

most certainly are, the facts of this case only serve to buttress Campbell's

holding that post-surgery photographs may be admissible because the surgery

was “necessitated by the assault” and the post-surgery photographs showed

the “resulting injuries.” Id. Significantly, Propes’s pre-surgery photographs do

not show the extent of the injuries caused by the alleged assault, as her hair

covers many visible markings and her necrotic skin. Additionally, as Flynn’s

jury instructions included first-degree, second-degree and fourth-degree

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assault instructions, the post-surgery photographs were relevant to allow the

jury to determine whether the alleged assault caused a “serious physical

injury” or simply a “physical injury.” See KRS3 508.010; KRS 508.020; KRS

508.030; see also Gardner v. State, 573 So.2d 716, 719 (Miss. 1990) (holding

that “the introduction of [both pre-surgery and post-surgery] photographs in

this case were not only relevant and probative, but absolutely necessary to aid

the jury in its decision of whether the assault with fists constituted aggravated

assault or simple assault[]”). Thus, on balance, the images the photographs

depicted were highly relevant and probative.

Furthermore, the admission of Exhibits #40-41 was not “needlessly

cumulative[,]” as they were introduced to show the severity of the wound and

the lack of healing post-surgery. Hall, 468 S.W.3d at 828. Therefore, the

admission of Exhibits #40-41 was not an abuse of discretion.

III. Conclusion.

After review of the applicable facts and case law, we hold the

Commonwealth’s cross-examination of Flynn did not amount to flagrant

misconduct, rendering the trial fundamentally unfair. We further hold that

Exhibits #38-41 were properly admitted. Thus, Flynn’s conviction is affirmed.

All sitting. All concur.

3 Kentucky Revised Statutes.

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COUNSEL FOR APPELLANT:

Molly Mattingly

Assistant Public Advocate

Department of Public Advocacy

COUNSEL FOR APPELLEE:

Daniel Jay Cameron

Attorney General of Kentucky

Kristin Leigh Conder

Assistant Attorney General

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