Kendall D. Lincoln v. Commonwealth of Kentucky ( 2022 )

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RENDERED: AUGUST 18, 2022
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2021-SC-0033-MR
KENDALL D. LINCOLN APPELLANT
ON APPEAL FROM HARDIN CIRCUIT COURT
V. HONORABLE KEN M. HOWARD, JUDGE
NO. 19-CR-01249
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
As a matter of right,1 Kendall D. Lincoln appeals the judgment reflecting
his convictions for murder, first-degree robbery, and of being a convicted felon
in possession of a handgun. Finding no reversible error, we affirm the
judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
While visiting his grandmother in Hardin County, Lincoln posted on
Snapchat a picture of himself with marijuana as an advertisement to potential
buyers. Cornelius Tory replied. Tory offered to trade Lincoln three bottles of
promethazine in exchange for one ounce of marijuana. The men agreed to
make the exchange in the parking lot of the Radcliff Wal-Mart.
1 Ky. Const. § 110(2)(b).
1
Lincoln rode with his friend Ladarius Archie and Archie’s girlfriend, who
were headed to Wal-Mart to get food. After waiting in the Wal-Mart parking lot
for some time, Tory flashed the lights of his car at the SUV driven by Archie.
Archie drove toward Tory’s vehicle and parked on the passenger side of Tory’s
car.
Lincoln exited Archie’s SUV and approached the passenger side of Tory’s
car. A few seconds later, Lincoln fatally shot Tory. Lincoln then grabbed items
from Tory’s car and returned to Archie’s SUV. Archie then drove Lincoln to the
home of R.J. Mooring, a friend of Lincoln’s. After learning what had happened,
Mooring called Jalen Pendleton and asked Pendleton to take Lincoln to a motel.
The next day, Mooring and his father visited the Radcliff police
department. Mooring identified Lincoln as the shooter responsible for Tory’s
death. Kentucky State Police attempted to locate Lincoln at his grandmother’s
home. While surveilling her home, officers observed Lincoln enter a car. The
police performed an interdiction stop and discovered that Lincoln’s uncle drove
the car and Lincoln was a passenger.
The police arrested Lincoln. At first, police told Lincoln that he was
being arrested for an outstanding warrant on an unrelated charge. During an
interview with Det. Levi Mattingly, Lincoln first denied any knowledge of the
shooting in the Wal-Mart parking lot. After Det. Mattingly confronted Lincoln
about security-camera footage from the Wal-Mart parking lot, Lincoln admitted
that he met Tory at the Wal-Mart parking lot to exchange drugs. Lincoln
claimed that he shot Tory in self-defense.
2
At trial, the Commonwealth posited that Lincoln intended to rob and
murder Tory all along. In support of this theory, the Commonwealth was
permitted to introduce evidence under Kentucky Rule of Evidence (KRE) 404(b)
indicating that, during the same week as the underlying offense, Lincoln
obtained eight ounces of marijuana by robbing an unrelated individual.
Essentially, the Commonwealth theorized that Lincoln engaged in a pattern
and practice of robbing individuals to obtain drugs.
Lincoln maintained his defense of self-defense, arguing that he feared for
his life because Tory pointed a handgun at him during the drug exchange.
The jury convicted Lincoln on all charges. Now, Lincoln makes several
assertions of trial-court error. He urges reversal and remand for a new trial.
We consider each assertion of error below.
II. ANALYSIS
A. The trial court did not abuse its discretion by permitting
introduction of KRE 404(b) information.
KRE 404(b)(1) makes evidence of prior crimes, wrongs, or acts
inadmissible to show the character of a person or action in conformity
therewith. But prior-bad-acts evidence may be offered “for some other
purpose, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.”2
2 KRE 404(b)(1).
3
We review a trial court’s evidentiary rulings for abuse of discretion.3 “The
test for abuse of discretion is whether the trial judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.”4
“[T]rial courts must apply KRE 404(b) cautiously, with an eye towards
eliminating evidence which is relevant only as proof of an accused's propensity
to commit a certain type of crime.”5 “To determine whether evidence of prior
bad acts is admissible, we must decide if the evidence is relevant ‘for some
purpose other than to prove the criminal disposition of the accused[,]’ probative
as to the actual commission of the prior bad act, and not overly prejudicial
under KRE 403.”6
The Commonwealth filed a notice of intent to introduce evidence under
KRE 404(c). Specifically, the Commonwealth planned to introduce evidence
that, during the same week as the charged offense, Lincoln allegedly robbed
another individual, obtaining eight ounces of marijuana. Lincoln objected. The
trial court conducted an evidentiary hearing to evaluate the possibility of
undue prejudice posed by introduction of the prior-bad-acts evidence. During
the hearing, R.J. Mooring testified that he exchanged text messages with
Lincoln in which Lincoln stated, “I was supposed to stain Anthony nobody
3 Kerr v. Commonwealth, 400 S.W.3d 250, 261 (Ky. 2013).
4 Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)
5 Bell v. Commonwealth, 875 S.W.2d 882, 889 (Ky. 1994) (alteration in original
omitted).
6 Kerr, 400 S.W.3d at 260 (quoting King v. Commonwealth, 276 S.W.3d 270,
275 (Ky. 2009)).
4
else.” Mooring testified that he understood the word “stain” to mean Lincoln
was going to “take, rob, or steal” from Anthony. Another text from Lincoln to
Mooring stated, “I do this shit and you know that.” The trial court concluded
that Lincoln’s prior conduct was sufficiently similar to the circumstances
presented in this case to be introduced as “a common scheme or plan, motive,
intent, and/or absence of mistake.”
At trial, R.J. Mooring testified that a few days before the Wal-Mart
parking-lot shooting, Lincoln admitted that he had taken about eight ounces of
marijuana from another dealer. Essentially, the Commonwealth’s theory of the
case was that Lincoln engaged in a scheme or plan to obtain drugs through
robbery. In other words, the Commonwealth argued that Lincoln similarly
planned to rob Tory to obtain drugs.
The trial court did not abuse its discretion by allowing introduction of
this prior-bad-acts evidence under KRE 404(b). First, the evidence of the prior
armed robbery was relevant to the Commonwealth’s theory of Lincoln’s motive,
preparation, and plan. Second, the evidence was probative as to the
commission of the prior-bad act. The Commonwealth’s theory was that Lincoln
engaged in a pattern and practice of obtaining drugs through robbery. The
evidence demonstrates that Lincoln allegedly committed a prior robbery in
which he obtained drugs. Lastly, the evidence was not substantially more
prejudicial than probative under the KRE 403 balancing test. The evidence
introduced by the Commonwealth was that Lincoln committed a robbery close
in time to the shooting at issue in this case and that Lincoln obtained drugs in
5
both incidents. That evidence rebuts Lincoln’s assertion of self-defense and is
probative of the Commonwealth’s theory that Lincoln engaged in a plan or
scheme to obtain drugs through robbery.
Importantly, the trial court gave two limiting instructions regarding the
proper scope of 404(b) evidence. The trial court admonished the jury not to
consider the prior-bad-acts evidence for any purpose except insofar as it
showed a motive or intent on Lincoln’s part to commit the charged offenses.
We presume that jurors follow a court’s admonitions.7
Ultimately, the prior-bad-acts evidence introduced here is directly
relevant to the Commonwealth’s theory concerning Lincoln’s plan, preparation,
and motive. And the trial court admonished the jury twice with limiting
instructions regarding the proper scope of the prior-bad-acts evidence. As
such, the trial court did not abuse its discretion by admitting evidence of the
prior robbery under KRE 404(b)(1).
B. The trial court did not abuse its discretion by precluding hearsay
testimony during the cross-examination of Ladarius Archie.
During defense counsel’s opening argument, counsel stated, “And
[Lincoln] gets back in the car, and you’re going to hear Ladarius Archie, and
[Lincoln] says, ‘He tried to up on me, he tried to rob me.’” Essentially, the
defense planned on eliciting testimony from Archie on cross-examination that
Lincoln told Archie that Tory tried to attack or rob him just before the shooting.
7 Tamme v. Commonwealth, 873 S.W.2d 13, 26 (Ky. 1998).
6
On direct examination, the Commonwealth did not ask Archie about the
statement that Tory “tried to up” on Lincoln. Before the defense’s cross-
examination, the Commonwealth preemptively objected to the defense eliciting
any testimony from Archie regarding Lincoln’s statement when Lincoln
returned to Archie’s vehicle after shooting Tory. The Commonwealth argued
that the prospective testimony did not fit into any hearsay exception. The
Commonwealth also described the statement as “self-serving.” In response,
defense counsel stated that “Archie actually gave testimony previously that the
defendant said this, that Mr. Tory ‘upped’ on him.” Defense counsel argued
that under the old rules of evidence a defendant’s statement against interest
could be admitted but that “any statement by the defendant is admissible”
under the hearsay rules.
Outside the presence of the jury, the trial court explained that under the
current rules of evidence a statement that constitutes hearsay must fit into an
exception to the hearsay rule to be admitted as evidence. The trial court went
on to explain that a defendant cannot introduce the defendant’s own “self-
serving” out-of-court statement through another witness’s testimony without
testifying and being subject to cross examination. The trial court concluded by
saying, “The Commonwealth can object and, unless it’s necessary for context, it
doesn’t come in.”
The defense then cross-examined Archie as follows:
Defense: Okay. So, when Kendall got back into the vehicle, you
testified that he said “go go go” right or –
Archie: Yeah, he was just like “go, don’t say nothing just go.”
Defense: “Don’t say nothing just go.” That was all he said?
7
Archie: Yes.
Defense: He didn’t say anything else to you?
Archie: No.
Commonwealth: Judge, objection.
Judge: What’s the objection?
Commonwealth: I think we’re trying to get in hearsay.
Judge: Well, it hasn’t occurred yet. Overruled.
Defense counsel did not make any additional references to or attempt to
impeach Archie with Lincoln’s statement that Tory “tried to up on him.”
This issue requires two analyses. First, we must determine whether this
issue was properly preserved for appellate review. Then, applying the
appropriate standard of review, we must consider whether reversible error
occurred.
That “[a] new theory of error cannot be presented on appeal” is a well-
settled rule.8 This rule applies “both as to the matter objected to and as to the
grounds of the objection.”9 “It must appear that the question was fairly
brought to the attention of the trial court. . . . One claiming error may not rely
on a broad ruling and thereafter fail to object specifically to the matter
complained of.”10
Lincoln raises this assertion of error for the first time on appeal. It is
true that defense counsel objected to the Commonwealth’s request for
exclusion and that the Commonwealth argued broadly that no exception to the
hearsay rule existed to allow Archie’s testimony regarding Lincoln’s statement.
8 Ruppee v. Commonwealth, 821 S.W.2d 484, 486 (Ky. 1991) (citations omitted);
see also Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1977).
9 Tucker v. Commonwealth, 916 S.W.2d 181, 183 (Ky. 1996).
10 Id.8
Even so, the discussion and analysis before the trial court focused exclusively
on whether Lincoln’s statement could be admitted as a statement against
interest. Lincoln now argues—for the first time on appeal—that his statement
to Archie that Tory “tried to up on him” can be admitted under the excited
utterance exception to the hearsay rule. As a result, the question of whether
the statement could be admitted as an excited utterance was not brought to
the attention of the trial court and is therefore not preserved for appellate
review.
So we review for palpable error. Under Kentucky Rule of Criminal
Procedure (RCr) 10.26, “an unpreserved error may generally be noticed on
appeal if the error is palpable and if it affects the substantial rights of a
party.”11 A palpable error is “easily perceptible, plain, obvious and readily
noticeable.”12 “Even then, relief is appropriate only upon a determination that
manifest injustice resulted from the error.”13 Manifest injustice is present
when a “defect in the proceeding [exists that is] shocking or jurisprudentially
intolerable.”14
We cannot conclude that the trial court committed palpable error by
precluding Archie’s testimony about Lincoln’s statement that Tory “upped on
[Lincoln].” It is not plain, obvious, or readily noticeable that Lincoln’s
11 Martin v. Commonwealth, 409 S.W.3d 340, 344 (Ky. 2013) (internal
quotations omitted) (emphasis in original).
12 Id.13 Id.14 Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006).
9
statement would be admitted as an excited utterance. Even assuming Lincoln
made the statement shortly after shooting Tory, Lincoln stole a bottle of
promethazine before returning to Archie’s vehicle, indicating that some time
elapsed between the shooting and Lincoln’s statement to Archie, which may
contradict Lincoln’s argument that he made the statement under stress or
excitement. Regardless, the preclusion of Archie’s testimony did not result in
manifest injustice because Lincoln himself twice testified that he told Archie
that Tory “tried to up on him.” Since the precluded evidence is cumulative of
other evidence that was introduced at trial, no manifest injustice resulted from
its preclusion during Archie’s cross-examination.
C. Introduction of Lincoln’s status as a convicted felon was not
reversible error.
As the trial began, the trial court noted that Lincoln was charged with
being a convicted felon in possession of a handgun in addition to the murder
and robbery charges. Accordingly, the trial court did not read to the jury the
indictment language naming the felon-in-possession charge and properly
bifurcated the guilt phase of the trial. No parties objected.
Still, the Commonwealth questioned Lincoln on cross-examination as
follows:
Commonwealth: This should’ve never occurred to begin with,
right?
Lincoln: No, sir.
Commonwealth: This whole incident, correct?
Lincoln: Yes, sir.
Commonwealth: You weren’t supposed to have a gun, were you?
Lincoln: No, sir.
Commonwealth: It’s illegal for you to own a gun, correct?
Lincoln: Yes, sir.
10
Commonwealth: Because why? Tell the ladies and gentlemen of
the jury why.
Before Lincoln could answer the Commonwealth’s last question above,
the defense objected. During a bench conference, defense counsel stated that
the Commonwealth could ask whether Lincoln was a convicted felon but
requested a limiting instruction be given to the jury to ensure the evidence was
considered for a proper purpose. In response, the trial court told the
Commonwealth that, “[a]t this stage, the proper procedure is to ask him are
you a convicted felon.”
The Commonwealth’s cross-examination resumed as follows:
Commonwealth: It’s because you’re a convicted felon, correct?
Lincoln: Yes, sir.
Court: Ladies and gentlemen of the jury, I need to advise you, give
you another limiting instruction at this time. The fact that this
defendant has been previously convicted of a felony is not to be
considered by you to any degree as evidence of defendant’s guilt in
this case. That only insofar as it may have a bearing, if it does,
upon the defendant’s truthfulness as a witness and the weight to
be given his testimony.
Commonwealth: So, let me get this straight. Ladarius Archie
testified your kid was not there. You’re saying your kid was there,
right?
Lincoln: Yes, sir.
...
Commonwealth: You left your child there to do a drug deal,
correct? You not only left your child to go do a drug deal, you left
illegally carrying a firearm? Can you agree with me that if you did
not have a firearm that night that Cornelius Tory would still be
here?
Lincoln: Yes.
Then, during closing arguments several days later, the Commonwealth
said, “He’s a convicted felon carrying a 45 loaded Glock 30. It is a felony for
him to even be in possession of it.”
11
Lincoln contends that the prosecution committed reversible error by
introducing evidence of the bifurcated felon-in-possession charge during
Lincoln’s cross-examination and during the Commonwealth’s closing
arguments in the initial guilt phase of the trial.
Regarding the Commonwealth’s questions asked on cross-examination,
KRE 609(a) permits a party to ask witnesses if the witness is a convicted
felon.15 And the trial court gave a proper limiting instruction admonishing the
jury that the fact that Lincoln was a convicted felon was not to be considered
as evidence of guilt but only insofar as it may have bearing on Lincoln’s
truthfulness as a witness and the weight to be given to his testimony. As such,
any prejudice to Lincoln because of the Commonwealth’s cross-examination
was cured by the trial court’s limiting instruction.16
Even so, Lincoln contends that the Commonwealth’s statement during
cross examination, that it was “a felony for [Lincoln] to even be in possession of
[a firearm],” constitutes flagrant prosecutorial misconduct. In examining
alleged prosecutorial misconduct, “any consideration on appeal of alleged
15 “General rule. For the purpose of reflecting upon the credibility of a witness,
evidence that the witness has been convicted of a crime shall be admitted if elicited
from the witness or established by public record if denied by the witness, but only if
the crime was punishable by death or imprisonment for one (1) year or more under the
law under which the witness was convicted. The identity of the crime upon which
conviction was based may not be disclosed upon cross-examination unless the witness
has denied the existence of the conviction. However, a witness against whom a
conviction is admitted under this provision may choose to disclose the identity of the
crime upon which the conviction is based.” KRE 609(a).
16 See Tamme, 873 S.W.2d at 26 (“Jurors are presumed to have followed an
admonition.”).
12
prosecutorial misconduct must center on the overall fairness of the trial.”17
“We may reverse only if the prosecutorial misconduct was so improper,
prejudicial, and egregious as to have undermined the overall fairness of the
proceedings.”18 “We must determine 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 court failed to cure
the error with a sufficient admonishment to the jury.”19
Because defense counsel did not object to the Commonwealth’s closing
argument at trial, we must determine whether the Commonwealth’s conduct
was “flagrant.”20 “We consider four factors in making this determination: (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.”21
First, the remarks did not tend to mislead the jury or prejudice the
accused. Lincoln’s theory of the case was that he shot Tory to death with a
handgun in self-defense. So the fact that Lincoln possessed a firearm was not
in dispute. The only new information elicited and highlighted by the
17 Bowling v. Commonwealth, 553 S.W.3d 231, 242 (Ky. 2018) (internal
quotations and alteration omitted).
18 Id.19 Id.20 Id.21 Id.13
Commonwealth was that Lincoln was a convicted felon. The Commonwealth
was entitled to elicit this information under KRE 609. That evidence is
insufficient to demonstrate that the Commonwealth’s reference to this fact
prejudiced Lincoln. So this factor weighs against a finding of flagrant
prosecutorial misconduct.
Second, there were three references to Lincoln’s illegal possession of a
firearm during the entire trial. As such, the remarks made by the
Commonwealth, while not necessarily fleeting or isolated, were also not
repetitive and did not pervade the entire trial. So this factor is neutral on a
finding of prosecutorial misconduct.
Third, the Commonwealth deliberately placed the fact that Lincoln was a
felon in possession of a firearm in front of the jury. This is evidenced by the
fact that the Commonwealth initiated its cross-examination of Lincoln with the
fact that he was a convicted felon, highlighted the fact that he illegally owned a
firearm later during cross-examination, and mentioned the fact during closing
arguments. So the third factor weighs in favor of a finding of flagrant
misconduct.
Fourth, and finally, evidence of Lincoln’s guilt was strong. Lincoln did
not dispute that he shot and killed Tory with a firearm during a drug deal in
the Radcliff Wal-Mart parking lot. And Lincoln claims that he shot Tory in self-
defense. So the only question for the jury was whether they believed Lincoln’s
assertion that he shot Tory in self-defense. As such, the final factor weighs
against a finding of flagrant prosecutorial misconduct.
14
In sum, only one factor weighs in favor of finding flagrant prosecutorial
misconduct. On balance and considering the evidence, while we do not
condone the Commonwealth’s references to Lincoln’s illegal use of a firearm, we
cannot conclude that the Commonwealth engaged in flagrant prosecutorial
misconduct that would necessitate reversal.
D. The Commonwealth’s misstatement regarding the duty to flee or
retreat under Kentucky law was not flagrant prosecutorial
misconduct.
During closing arguments, the Commonwealth stated, “Because you have
a duty to flee, you have a duty to retreat in the state of Kentucky if you can.”
Lincoln concedes that this issue is not preserved, so we review here for
palpable error.
The Commonwealth’s statement regarding a duty to flee was an easily
perceptible, plain, obvious, and readily noticeable misstatement of Kentucky
law.22 Kentucky’s common law is well-settled that one has no duty to retreat
before using physical force for self-protection.23 The common law rule is
codified in Kentucky Revised Statutes (KRS) 503.050(4), which states, “A
person does not have a duty to retreat prior to the use of deadly physical force.”
The Commonwealth conflates two related but distinct legal concepts in
arguing that the prosecutor’s comment was a correct statement of Kentucky
22 See Martin, 409 S.W.3d at 344 (Ky. 2013) (explaining that a palpable error is
one that is “easily perceptible, plain, obvious and readily noticeable”).
23Commonwealth v. Stone, 291 S.W.3d 696, 703 (Ky. 2009) (quoting Gibson v.
Commonwealth, 34 S.W.2d 921, 926 (Ky. 1931) (“It is a tradition that a Kentuckian
never runs. He does not have to.”)).
15
law. The Commonwealth correctly notes that criminal defendants are not
entitled to a “no duty to retreat” jury instruction when engaged in unlawful
activity at the time force was used.24 But Lincoln does not argue he was
entitled to a “no duty to retreat” jury instruction. Instead, he argues that the
Commonwealth misstated Kentucky law during closing arguments by telling
the jury that Lincoln had an affirmative duty to flee or retreat under Kentucky
law. On that point, Lincoln is correct. This Court has recently explained that
Kentucky’s no-duty-to-retreat rule is a creature of statute that is distinct from
a “no duty to retreat” jury instruction.25 As a result, the Commonwealth’s
comment regarding Lincoln’s duty to retreat constituted a misstatement of
Kentucky law.
But that does not end our analysis. “As we review for palpable error, we
will reverse only if the alleged misconduct was flagrant or, where a
contemporaneous objection was made, the proof of guilt is not overwhelming
and the trial court failed to cure the misconduct with a sufficient
admonition.”26 Here, since the defense made no contemporaneous objection to
24 See KRS 503.055(3) (“A person who is not engaged in an unlawful activity and
who is attacked in any other place where he or she has a right to be has no duty to
retreat and has the right to stand his or her ground and meet force with force,
including deadly force, if he or she reasonably believes it is necessary to do so to
prevent death or great bodily harm to himself or herself or another or to prevent the
commission of a felony involving the use of force.” (emphasis added)); see also Curry v.
Commonwealth, 620 S.W.3d 563, 567–68 (Ky. 2020); Jackson v. Commonwealth, 481
S.W.3d 794, 796–97 (Ky. 2016).
25 See Curry, 620 S.W.3d at 570.
26Brafman v. Commonwealth, 612 S.W.3d 850, 861 (Ky. 2020) (citing Dickerson
v. Commonwealth, 485 S.W.3d 310, 329 (Ky. 2016); Duncan v. Commonwealth, 322
S.W.3d 81, 87 (Ky. 2010)).
16
the Commonwealth’s misstatement during closing arguments, “we must find
the misconduct flagrant in order to reverse on this claim of error.”27 “We
consider four factors in making this determination: (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.”28
First, while the Commonwealth misstated the law during its closing
argument, the trial court instructed the jury on the law regarding self-
protection and informed the jurors that they were to follow the trial court’s jury
instructions as the law of the Commonwealth. So any conceivable error that
misled the jury as to the applicable law or prejudiced the defendant was
remedied by the trial court’s affirmative statement of the law of the
Commonwealth.
Second, the Commonwealth appears to have only made one
misstatement regarding the duty to retreat under Kentucky law. As a result,
we cannot say that one discrete misstatement over the course of a lengthy trial
constitutes extensive remarks that would support a finding of flagrant
prosecutorial misconduct.
Third, the Commonwealth’s misstatement regarding Kentucky law was
made during closing arguments, which the prosecution almost certainly
27 Id.28 Bowling, 553 S.W.3d at 242.
17
planned and rehearsed before the closing arguments were given. As a result,
this factor weighs in favor of a finding of flagrant misconduct.
Fourth, as previously mentioned, there was strong evidence of Lincoln’s
guilt. Again, Lincoln did not dispute that he shot and killed Tory with a
handgun during a drug deal in the Radcliff Wal-Mart parking lot. Instead, he
argued that he shot Tory in self-defense. Even so, the prosecution introduced
evidence to the contrary, which suggested that Lincoln engaged in a pattern
and practice of committing robbery to obtain drugs. As a result, the only
question for the jury was whether they believed that Lincoln shot Tory in self-
defense. So the fourth factor weighs against finding flagrant prosecutorial
misconduct.
On balance, three of the four factors weigh against finding flagrant
prosecutorial misconduct arising from the Commonwealth’s misstatement of
Kentucky law. As a result, the Commonwealth’s misstatement of law regarding
the duty to retreat was not flagrant prosecutorial misconduct, and reversal is
inappropriate.
E. The trial court’s failure to instruct on self-protection was not
palpable error.
Lincoln argues that the trial court erred by failing to provide a separate
jury instruction on self-protection under Kentucky law. This error is not
preserved for appellate review. Lincoln argues that the error is preserved
because both parties tendered proposed jury instructions to the trial court.
Additionally, Lincoln notes that the trial court reviewed instructions with
counsel on Friday afternoon and that defense counsel renewed previous
18
objections to the jury instructions when trial reconvened the following Monday
morning but only specifically mentioned the inclusion of the initial-aggressor
instruction.
After review of the record, other than submitting proposed jury
instructions to the trial court, Lincoln did not specifically request that the trial
court separate the instruction on self-protection. Again, new theories of error
cannot be presented for the first time on appeal.29 Objections must be “fairly
brought to the attention of the trial court. . . . One claiming error may not rely
on a broad ruling and thereafter fail to object specifically to the matter
complained of.”30 Here, the fact that Lincoln included a separate jury
instruction for self-protection in his proposed jury instructions does not
constitute a specific objection to the trial court’s failure to set that instruction
out as a separate jury instruction. Defense counsel had ample opportunity to
review and object to the trial court’s proposed final draft of the jury
instructions. By Lincoln’s own admission, the only specific objection that
defense counsel made was to the trial court’s proposed initial aggressor
instruction. As a result, this claim of error is unpreserved, and we review for
palpable error.
The trial court’s failure to set out a separate jury instruction for self-
protection is not a plain or obvious error.31 Lincoln does not contend that the
29 Ruppee, 821 S.W.2d at 486.
30 Tucker, 916 S.W.2d at 183.
31 See Martin, 409 S.W.3d at 344 (Ky. 2013) (explaining that a palpable error is
one that is “easily perceptible, plain, obvious and readily noticeable”).
19
jury instructions included an incorrect definition of self-protection under
Kentucky law. Instead, he argues that the court erred by failing to set out a
separate jury instruction on self-protection. It is true that Commonwealth v.
Hager discusses a separate jury instruction on self-protection.32 Even so,
Hager did not hold that a self-protection instruction must be provided
separately. As a result, we cannot conclude that the trial court committed
palpable error by failing to set out a separate self-protection instruction when
the court included the definition of self-protection as part of Instruction No. 2.
F. The trial court did not abuse its discretion in admitting the
testimony of Lt. Davis.
Lincoln argues that the trial court abused its discretion in permitting
opinion testimony from Lt. Davis that Lincoln did not exhibit any symptoms of
shock. During opening statement, defense counsel mentioned that Lincoln was
“shocked” by Tory’s attempt to rob him. Subsequently, the Commonwealth
questioned Lt. Davis, who transported Lincoln from the site of the interdictory
stop to the police station, about Lincoln’s demeanor. Lt. Davis testified that he
was trained to recognize whether someone is suffering from shock. The
Commonwealth asked Lt. Davis if, during the time he spent with Lincoln,
Lincoln exhibited any symptoms of someone suffering from shock. The defense
objected because Lt. Davis was not an expert witness and on the grounds that
the testimony was improper because it would require Lt. Davis to testify about
Lincoln’s state of mind. The trial court overruled the defense objection. Lt.
32 41 S.W.3d 828, 846 (Ky. 2001).
20
Davis then said, “[Lincoln] did not exhibit any signs of shock that I have been
familiar with or exposed to.”
“As a general rule, a competent witness may testify concerning matters of
which he [or she] has personal knowledge, including events he has personally
observed and perceived.”33 Furthermore, “a witness may describe another
person's ‘conduct, demeanor, and statements based upon his or her
observations to the extent that the testimony is not otherwise excluded by the
Rules of Evidence.’”34 And “[w]e have long allowed lay witnesses to testify as to
their opinion on a defendant’s sanity or mental state” so long as “the witness
[has] a sufficient basis on which to form his or her opinion.”35
The trial court did not abuse its discretion in permitting Lt. Davis to
testify about his observation that Lincoln was not exhibiting signs of shock. Lt.
Davis spent at least a half-hour with Lincoln. Moreover, Lt. Davis testified that
he was trained to recognize symptoms of shock. These facts provide a
sufficient basis on which Lt. Davis could form an opinion on whether Lincoln
was exhibiting symptoms of shock. Ultimately, Lt. Davis’s observation that
Lincoln was not exhibiting symptoms of shock was within the realm of Davis’s
common personal knowledge.
This case is dissimilar to Ordway. Contrary to the testimony in Ordway,
which involved the opinion of an experienced police detective that a defendant’s
33 Ruiz v. Commonwealth, 471 S.W.3d 675, 683 (Ky. 2015).
34 Id. (quoting Ordway v. Commonwealth, 391 S.W.3d 762, 777 (Ky. 2013)
(alteration omitted)).
35 Hall v. Commonwealth, 468 S.W.3d 814, 833 (Ky. 2015).
21
conduct did not comport with the stereotypical conduct of one acting in self-
defense, Lt. Davis was neither asked to comment on matters outside the realm
of his common knowledge nor to testify about Lincoln’s guilt or innocence.36
Additionally, unlike the testimony in Ordway, Lt. Davis’s testimony was more
limited and subject to an important qualifier. Lt. Davis ultimately testified that
“[Lincoln] did not exhibit any signs of shock that I have been familiar with or
exposed to.” As such, Lt. Davis only testified that Lincoln was not exhibiting
any symptoms of shock with which he was familiar. That does not foreclose
that Lincoln was not exhibiting symptoms of shock outside of Lt. Davis’s
common knowledge and is a far cry from the testimony in Ordway, where a
detective opined that the defendant did not exhibit the stereotypical conduct of
a person acting in self-defense.37
Finally, any error resulting from Lt. Davis’s testimony was harmless
because it was cumulative of other evidence presented at trial. Det. Mattingly
testified, without objection, that Lincoln was initially lighthearted and jovial
before his police interview. More importantly, Det. Mattingly testified, without
objection, that Lincoln exhibited no signs of shock. Since “the erroneous
admission of cumulative evidence is a harmless error,”38 admission of Lt.
36 See Ordway v. Commonwealth, 391 S.W.3d 762, 776–77 (Ky. 2013).
37 See id.38 Torrence v. Commonwealth, 269 S.W.3d 842, 846 (Ky. 2008); see also Wells v.
Commonwealth, 206 S.W.3d 332, 335–36 (Ky. 2006) (Minton, J., concurring, joined by
three other justices, stating that the erroneous admission of cumulative evidence is
harmless error) (citing Meadows v. Commonwealth, 178 S.W.3d 527, 538 (Ky. App.
2005); Combs v. Commonwealth, 965 S.W.2d 161, 165 (Ky. 1998)).
22
Davis’s testimony that Lincoln was not exhibiting signs of shock was, at most,
harmless error.
G. Admission of the Wal-Mart asset-protection employee’s testimony
was not palpable error.
Gina Nichols worked for Wal-Mart asset protection at the time of the
shooting but was employed by the Radcliff Police Department at the time of
Lincoln’s trial. Nichols made a recording of the surveillance video from the
Wal-Mart parking lot. She testified that she only made a recording of events
during the crime. The recording stopped after the second vehicle drove away.
The Commonwealth asked Nichols to tell the jury what she saw on the
video after the recording stopped. Nichols testified that she saw two men
walking to the store hesitate, continue into the store, and upon leaving the
store, one man walking toward Tory’s car. Nichols testified that the man
looked toward Tory’s car, then turned and ran. Police arrived a few minutes
later. Nichols testified that neither of the men on the video opened the door of
Tory’s car but acknowledged that the passenger side of Tory’s vehicle was not
visible on the video. She said she watched the video until police arrived on
scene.
Lincoln concedes that this error is unpreserved; thus, we review for
palpable error. KRE 701 limits opinion testimony by a lay witness to opinions
and inferences that are: “(a) Rationally based on the perception of the witness;
(b) Helpful to a clear understanding of the witness' testimony or the
determination of a fact in issue; and (c) Not based on scientific, technical, or
23
other specialized knowledge within the scope of Rule 702.” And KRE 602
requires a witness to have personal knowledge before testifying about a matter.
Admission of Nichols’s testimony regarding her observations of events on
the surveillance video after the video recording stopped was not an “easily
perceptible, plain, obvious and readily noticeable error.”39 This Court
explained that “[w]hile a witness may proffer narrative testimony within the
permissible confines of the rules of evidence, we have held he [or she] may not
‘interpret’ audio or video evidence, as such testimony invades the province of
the jury, whose job is to make determinations of fact based upon the
evidence.”40 The problem here, however, is that during the portion of Nichols’s
testimony at issue, she was not interpreting or narrating video evidence.
Instead, Lincoln takes issue with Nichols’s explanation of the portion of the
Wal-Mart surveillance video that was not shown to the jury. Nichols testified
that she personally observed the video surveillance evidence from the time the
second car (presumably Archie’s vehicle) drove off until police arrived. And
Nichols testified that she was familiar with the Wal-Mart parking lot and the
video surveillance system. So it appears that Nichols personally observed the
video and had personal knowledge about the video surveillance system and the
layout of the Wal-Mart parking lot. On these facts, we cannot say that it was a
palpable error to allow Nichols to testify about her observations on the
surveillance video after the recording that was shown to the jury stopped.
39 See Martin, 409 S.W. 3d at 344 (providing the standard for a “palpable” error).
40 Cuzick v. Commonwealth, 276 S.W.3d 260, 265–66 (Ky. 2009).
24
Furthermore, even if Nichols’s testimony constituted error, it did not
result in manifest injustice.41 Again, it was undisputed that Lincoln met Tory
in the Radcliff Wal-Mart parking lot to conduct a drug transaction, that he shot
Tory, and that he left the scene. The only issue at trial was whether the jury
believed that Lincoln shot Tory in self-defense. Lincoln states that the medical
examiner thought one bullet-entrance wound was on Tory’s back, which would
have been the fatal wound. And Lincoln argues that the Commonwealth failed
to demonstrate how Tory could have been shot in the back from the passenger
seat. Still, Lincoln made no serious contention at trial that someone else shot
Tory, causing his death. As a result, we cannot say that the admission of
Nichols’s testimony resulted in manifest injustice where there was no evidence
suggesting another shooter shot Tory or disturbed the crime scene.
H. The trial court did not err in denying suppression of Lincoln’s
statement to Det. Mattingly.
Lincoln argues that the trial court erred in denying his motion to
suppress his statement given to Det. Mattingly at the police station. Lincoln
contends that he was ostensibly arrested on a violation related to a case on
pretrial diversion and he had counsel related to that case. Lincoln’s attorney in
that case testified that he called the Radcliff Police Department two or three
times but was not allowed to speak to Lincoln.
41 See Martin, 409 S.W. 3d at 344 (explaining that manifest injustice occurs
when a “defect in the proceeding [exists that is] shocking or jurisprudentially
intolerable[]”).
25
The trial court was correct in denying Lincoln’s motion to suppress.
During the suppression hearing, Officer Sawyer Bruce testified that he advised
Lincoln of his Miranda rights, that Lincoln acknowledged that he understood
these rights, that Lincoln signed a waiver, and that Lincoln never invoked the
right to counsel. Lincoln does not dispute these facts. As a result, Lincoln’s
statement, given after he was read his Miranda rights but before invoking the
right to counsel, is admissible.42
Moreover, there was no violation of RCr 2.14(2)43 because “[s]imply
making a telephone call to the police station is not enough to effectuate RCr
2.14(2).”44 “The attorney must be denied access to the defendant for RCr
2.14(2) to be violated.”45 “Consistent with this Court's interpretive
methodologies, this applies the common usage of ‘visit’ found in RCr 2.14(2).”46
Lincoln acknowledges our holding in Terrell but contends that “[w]hile in-
person attorney visits are a crucial part of representation, the past year of
pandemic restrictions makes the case for flexibility in defining ‘visits’ in order
to effectuate representation.” Still, we see no reason to disturb our previous
42 See Ragland v. Commonwealth, 191 S.W.3d 569, 586 (Ky. 2006) (“A suspect
may waive his Miranda rights either expressly or implicitly. . . . When a suspect has
been advised of his rights, acknowledges an understanding of those rights, and
voluntarily responds to police questioning, he may be deemed to have waived those
rights.”).
43 “Any attorney at law entitled to practice in the courts of this Commonwealth
shall be permitted, at the request of the person in custody or of some one acting in
that person's behalf, to visit the person in custody.” RCr 2.14(2).
44 Commonwealth v. Terrell, 464 S.W.3d 495, 502 n.22 (Ky. 2015).
45 Id.46 Id.26
interpretation of the term “visit” as it is used in RCr 2.14(2). Thus, since
Lincoln’s attorney was not denied access to Lincoln, no violation of RCr 2.14(2)
occurred.
I. The trial court did not abuse its discretion by admitting
Commonwealth Exhibit No. 33.
Lincoln contends that admission of Commonwealth Exhibit No. 33 was
unnecessarily or unduly prejudicial. In the photograph submitted as
Commonwealth’s Exhibit No. 33, Tory’s head and face are fully visible, his eyes
are open and staring, and his mouth is open, with blood trickling out.
Generally, “the Commonwealth may ‘prove its case by competent
evidence of its own choosing, and the defendant may not stipulate away the
parts of the case that he does not want the jury to see.’”47 And “general
gruesomeness by itself, while prejudicial, is an insufficient ground to keep out
relevant evidence; rather, the gruesomeness must be such that it creates
substantial undue prejudice or other harmful consequences that outweigh the
probativeness of the evidence.”48
But, “the Commonwealth's prerogative in dictating the specific evidence
used to prove its case is not without limit.”49 “Like all evidence, [photographs]
are subject to the balancing test of KRE 403[.]”50 “Although relevant, evidence
Hall v. Commonwealth, 468 S.W.3d 814, 825 (Ky. 2015) (quoting Pollini v.
47
Commonwealth, 172 S.W.3d 418, 424 (Ky. 2005)).
48 Id. at 824.
49 Id. at 825.
50 Id. at 823.
27
may be excluded if its probative value is substantially outweighed by the
danger of undue prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, or needless presentation of cumulative
evidence.”51
The trial court must engage in three basic inquiries when engaging in
KRE 403 balancing.52 “First, the trial court must assess the probative worth of
the proffered evidence; second, it must assess the risk of harmful
consequences (i.e., undue prejudice) of the evidence if admitted; and last, it
must evaluate whether the probative value is substantially outweighed by the
harmful consequences.”53
We cannot say that the trial court abused its discretion54 by allowing
admission of the Commonwealth’s Exhibit No. 33. Of course, “[w]hen there is
already overwhelming evidence tending to prove a particular fact any additional
evidence introduced to prove the same fact necessarily has lower probative
worth regardless of how much persuasive force it might otherwise have by
itself.”55 But this evidence was not so duplicative that it was only introduced to
inflame the jury. Instead, as the Commonwealth argued, the photograph of
Tory’s body showed the holes caused by the gunshot wounds inflicted on Tory’s
51 KRE 403.
52 Hall, 468 S.W.3d at 823.
53 Id. (citing Webb v. Commonwealth, 387 S.W.3d 319, 326 (Ky. 2012)).
54 “[T]he balancing required by Rule 403 is ‘a task properly reserved for the
sound discretion of the trial judge’ and is thus reviewed only for abuse of discretion.”
Id. at 827 (quoting Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)).
55 Id. at 824.
28
body. Lincoln argues that the photograph was duplicative of other evidence.
For instance, the jury had seen bodycam footage from a responding police
officer where Tory’s body is visible on the body cam. The jury also heard the
testimony of the medical examiner, Dr. Greenwell, who explained the injuries to
Tory’s body. And the jury saw some autopsy photographs of Tory’s wounds.
Even so, Exhibit No. 33, while gruesome, was probative to allow the jury a full
view of the extent of all of Tory’s gunshot wounds and the position of his body
after the shooting at the crime scene.
Ultimately, “photographs that are probative of the nature of the injuries
inflicted are not excluded unless they are so inflammatory that their probative
value is substantially outweighed by their prejudicial effect.”56 Here, the
photograph of Tory’s body, introduced as Commonwealth’s Exhibit No. 33, was
not so inflammatory that its probative value was substantially outweighed by
its prejudicial effect. As such, the trial court did not abuse its discretion by
admitting Commonwealth’s Exhibit No. 33 into evidence.
J. The Commonwealth’s preemptory strike of potential Juror No. 422
did not violate Batson.
Lincoln’s last substantive assertion of error is that the Commonwealth’s
preemptory strike of potential Juror No. 422, an African-American man,
constituted racial discrimination in the use of preemptory strikes in violation of
Batson v. Kentucky.57 “A trial court's ruling on a Batson challenge will not be
56 Adkins v. Commonwealth, 96 S.W.3d 779, 794 (Ky. 2003).
57 See 476 U.S. 79 (1986).
29
disturbed unless clearly erroneous.”58 Under the clearly erroneous standard,
we are “obligated to give a great deal of deference to the trial court's findings
and should not interfere with those findings unless the record is devoid of
substantial evidence to support them.”59
Under Batson, claims of racial discrimination in the use of preemptory
strikes are analyzed under a three-part test. First, the defendant must make a
prima facie showing of racial discrimination.60 Second, if the defendant makes
a prima facie showing of racial discrimination, the burden shifts to the
prosecutor to provide race-neutral reasons for the preemptory strikes.61 Third,
the burden shifts back to the defendant to show “purposeful discrimination.”62
At the final stage, a trial judge “must evaluate those reasons as he or she
would weigh any disputed fact. In order to permit the questioned challenge, the
trial judge must conclude that the proffered reasons are, first, neutral and
reasonable, and second, not a pretext.”63
In response to defense counsel’s Batson challenge, the Commonwealth
advanced several race-neutral reasons to explain the preemptory strike of
potential Juror No. 422. First, the Commonwealth stated that on his juror
58 Washington v. Commonwealth, 34 S.W.3d 376, 380 (Ky. 2000).
59 D.G.R. v. Commonwealth, Cabinet for Health & Fam. Servs., 364 S.W.3d 106,
113 (Ky. 2012).
60Thomas v. Commonwealth, 153 S.W.3d 772, 777 (Ky. 2004) (citing Batson,
476 U.S. at 93-98).
61 Id.62 Hernandez v. New York, 500 U.S. 352, 359 (1991).
63 Washington, 34 S.W.3d at 379 (quoting Wright v. State, 586 So. 2d 1024,
1028 (Fla. 1991)).
30
qualification form, potential Juror No. 422 stated that he or his family
members had cases pending in Hardin County, but the prosecutor
acknowledged that he could not locate additional information about those
cases. Second, the Commonwealth claimed that it struck two jurors, potential
Juror No. 426, who was white, and potential Juror No. 422, who was African-
American, who similarly answered a question asked by defense counsel during
voir dire regarding a self-protection issue. Third, the Commonwealth asserted
that potential Juror No. 422 “seemed to know a lot about individuals who had
been wrongly convicted in St. Louis.” Fourth, the Commonwealth stated that
potential Juror No. 422 was working four jobs and had ten children, raising a
question about whether he could serve throughout trial. As such, the
Commonwealth met its burden of stating race-neutral reasons for the strike of
potential Juror No. 422.64
At the final stage of the Batson analysis, the burden shifted back to the
defense to demonstrate that the race-neutral reasons stated by the
Commonwealth were pretext for racial discrimination. First, defense counsel
argued that more than two potential jurors answered in the affirmative to the
Commonwealth’s self-defense question. The defense noted that while it was
true that the Commonwealth also struck potential Juror No. 426, a white man,
64 See id. at 360 (“[T]he issue is the facial validity of the prosecutor's
explanation. Unless a discriminatory intent is inherent in the prosecutor's
explanation, the reason offered will be deemed race neutral.”); see also Purkett v. Elem,
514 U.S. 765, 767–68 (1995) (“The second step of this [Batson] process does not
demand an explanation that is persuasive, or even plausible.”).
31
for answering the self-defense question in the affirmative, potential Juror No.
426 also answered affirmatively to a question regarding marijuana. Third, the
defense stated that potential Juror No. 422 was open with the trial court about
his 10 children and was responsive to all questions, which indicated that
potential Juror No. 422 could serve at trial.
Ultimately, the trial court’s decision to overrule Lincoln’s Batson
challenge was not clearly erroneous. The Commonwealth advanced four race-
neutral reasons for striking potential Juror No. 422. The trial court noted that
potential Juror No. 422 indicated that he or his family had cases pending in
Hardin County and that the Commonwealth struck potential Juror No. 422 on
that basis. The defense failed to respond to or demonstrate that this race-
neutral reason for striking potential Juror No. 422 was pretext for racial
discrimination in the use of preemptory strikes. The trial court also noted that
potential Juror No. 422 was struck because of his response regarding how he
would view a potential self-defense issue. The defense argued that reason was
pretext because, while the Commonwealth did strike a white potential juror for
answering the same question in the affirmative, the white potential juror also
affirmatively answered a question about marijuana. But, without more, the
defense’s response fails to demonstrate purposeful discrimination.
The trial court was in the best position to determine whether the
Commonwealth’s stated reason was neutral, reasonable, and not pretextual.
And there was substantial evidence to support the trial court’s finding that
potential Juror No. 422 was struck because of his affirmative answer to a
32
question regarding how he would view a self-defense issue. As a result, Lincoln
failed to demonstrate that the Commonwealth struck potential Juror No. 422
based on his race.
In sum, in response to the defense’s Batson challenge, the
Commonwealth stated race-neutral reasons for striking potential Juror No.
422. The trial court’s conclusion that two of those race-neutral reasons were
not pretext for racial discrimination is supported by substantial evidence. As a
result, the trial court’s ruling on the Batson challenge to the strike of potential
Juror No. 422 was not clearly erroneous.
K. There was no cumulative error.
Lastly, Lincoln claims his convictions should be reversed based on
cumulative error, “the doctrine under which multiple errors, although harmless
individually, may be deemed reversible if their cumulative effect is to render the
trial fundamentally unfair.”65 Cumulative error has been found “where the
individual errors were themselves substantial, bordering, at least, on the
prejudicial.”66 Here, there are no individual errors that are sufficiently
substantial or prejudicial such that their cumulative effect would render the
trial fundamentally unfair. So Lincoln has not demonstrated cumulative error.
III. CONCLUSION
Finding no reversible error on this record, we affirm the judgment of the
Hardin Circuit Court.
65 Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010).
66 Id.33
All sitting. All concur.
COUNSEL FOR APPELLANT:
Molly Mattingly
Department of Public Advocacy
COUNSEL FOR APPELLEE:
Daniel Cameron
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Office of the Solicitor General
34