Imojean Daniel v. Commonwealth of Kentucky ( 2020 )


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  •                                             RENDERED: SEPTEMBER 24, 2020
    TO BE PUBLISHED
    Supreme Court of Kentucky
    2018-SC-0560-MR
    IMOJEAN DANIEL                                                        APPELLANT
    ON APPEAL FROM BREATHITT CIRCUIT COURT
    V.             HONORABLE FRANK ALLEN FLETCHER, JUDGE
    NO. 17-CR-00098
    COMMONWEALTH OF KENTUCKY                                               APPELLEE
    OPINION OF THE COURT BY JUSTICE LAMBERT
    REVERSING AND REMANDING
    Imojean Daniel was convicted of murder in relation to the shooting death
    of her friend and roommate, Joy Turner. She now appeals her resulting thirty-
    year sentence. After review, we reverse and remand for a new trial consistent
    with this opinion.
    FACTUAL BACKGROUND
    In the months leading up to her death in September 2016, forty-two-
    year-old Joy Turner’s life was turbulent. Her beloved Aunt Eva, whom Joy
    considered to be a second mother, had recently passed away. Then, in
    January 2016, Joy’s parents, Michael and Carolyn Turner, forced Joy to leave
    their home. Their decision to do so was a result of Joy’s lifestyle choices, in
    particular her abuse of prescription medications.
    After Joy left her parents’ home, she was homeless. From January 2016
    until late March or early April of 2016 Joy stayed with her then-boyfriend
    Bobby “B.J.” Thomas, Jr. B.J. told investigating officers that while Joy lived
    with him she cried a lot, slept a lot, and stayed in the bedroom most of the
    time. He believed she was depressed due to her Aunt Eva’s passing. Joy was
    being treated for anxiety and depression, and her medical records
    demonstrated she visited her treating physician frequently.
    In April 2016 Joy moved out of B.J.’s home and began living with the
    Appellant, Imojean Daniel. Joy and Daniel were described by witnesses as best
    friends, and both of Joy’s parents testified that they have known Daniel since
    she was a little girl. When Joy moved into Daniel’s single-wide trailer, Daniel
    and her girlfriend Kim Spicer were already living there. Kim testified that she
    and Daniel have been romantically involved “on and off” for twenty-two years,
    and that they lived together for about eighty percent of that time. Kim said
    that she and Joy got along most of the time, but when Joy took too much of
    her prescription pills, she would “get mouthy” and Kim would leave the trailer
    to avoid altercations with her. Kim further stated that she never saw Daniel
    and Joy argue or fight.
    Beverly Gross, who was very close to Daniel and Kim but did not know
    Joy, was a frequent visitor at the trailer. Beverly said that in the two months
    leading up to Joy’s death, she visited the trailer at least three to four times a
    1
    week. Beverly was very candid about the fact that she, Daniel, Joy, and Kim
    all abused drugs1 at the trailer. Beverly said that two weeks before Joy’s death
    Daniel made Kim move out. It was Beverly’s understanding that Daniel broke
    up with Kim and wanted to pursue Joy romantically. Beverly did not believe
    Joy was romantically interested in Daniel or that Daniel and Joy were in a
    relationship, but that Joy continued living with Daniel because she needed a
    place to stay. Kim stated that she only knew of Daniel and Joy being best
    friends and that they were never romantically involved.
    The night of September 1, 2016, Daniel and Joy were at the trailer by
    themselves. Daniel would later tell lead detective Jeff Browning that she and
    Joy had been drinking and doing drugs that night at a friend’s house, and they
    returned to the trailer sometime after 10 p.m. Joy was passing out, so Joy
    went to bed and Daniel went to the living room to watch a movie. The living
    room and the bedroom were separated by a kitchen area and a short hallway.
    Daniel told Det. Browning that at some point she walked down the hallway
    towards the bedroom. She saw Joy on the floor against the back wall of the
    room between the bed and an old pedal sewing machine. Daniel said she
    thought Joy fell out of bed and hit her head on the sewing machine until she
    tried to move her and saw the gun. Daniel said she pulled Joy away from the
    wall, laid her on her back, and attempted CPR. Daniel told Det. Browning that
    she never heard the gun, a .25 caliber semi-automatic pistol, go off.
    1 Beverly specifically mentioned Suboxone, Percocet and, Methadone. Beverly
    also acknowledged that she was using drugs intravenously during this time period.
    2
    Daniel’s aunt, Gertrude Cole, lived next to Daniel; their homes were on
    either side of a small driveway. Sometime around midnight Gertrude’s
    grandson,2 Dalton Turner, and his friend Tyler Noble were sitting outside on
    Gertrude’s porch. Both Dalton and Tyler testified to suddenly hearing Daniel
    screaming hysterically for someone to call 911 and seeing her banging on the
    side of her trailer with her hand. Prior to this, neither of them heard any
    arguing or screaming from within Daniel’s trailer, and neither of them heard a
    gunshot. One of Daniel’s neighbors called 911, and police arrived on the scene
    soon after. Joy’s mother, father, and sister were also called to the scene that
    night. Daniel was not arrested that day, as the investigating officers did not
    feel they had enough evidence to disprove Joy killed herself.
    Although Daniel’s version of events remained consistent in her
    statements to police, other witnesses claimed that her version of events as told
    to them differed. Joy’s mother and father and Beverly all testified that Daniel
    said she and Joy were in the bedroom and Joy asked Daniel to get her a pop
    from the kitchen. And, when Daniel went back to the bedroom, she saw Joy
    slumped on the floor between the bed and the sewing machine. In addition,
    Joy’s father testified that he heard Daniel say she was asleep and did not hear
    the gun go off. Finally, Deputy Jailer Nelda Fugate testified that she
    transported Daniel shortly after her eventual arrest a year later in November
    2017. Jailer Fugate said she told Daniel that she was charged with murder, to
    which Daniel replied, “it wasn’t murder, it was assisted suicide.”
    2   Daniel’s cousin.
    3
    Dr. Laura Lippincott, the medical examiner and forensic pathologist that
    conducted Joy’s autopsy, testified for the Commonwealth. She determined that
    the bullet entered Joy’s skull through her right parietal scalp. In layman’s
    terms, “above the ear and a bit behind it, but not the back of the head.” The
    bullet then traveled “back to front, right to left, and slightly downward,” and
    never exited Joy’s skull. Further, Dr. Lippincott determined based on the soot
    around the wound that it was a contact wound. This meant that the gun was
    pressed against Joy’s head when it was fired.
    Dr. Lippincott also noted that several different substances were found in
    Joy’s blood: Clonazepam, Tetrahydrocannabinol, Oxycodone, Gabapentin, and
    alcohol. All of the substances were present at therapeutic levels, except for the
    alcohol, the percentage of which Dr. Lippincott could not compare to a blood
    alcohol content level. She testified that, in her opinion, these substances
    would have had an “interactive effect” upon Joy.
    When Dr. Lippincott initially completed Joy’s autopsy, she ruled her
    manner of death to be homicide. However, when she later reviewed the case,
    she changed her opinion. She testified that she could no longer rule out
    suicide or homicide as Joy’s cause of death.
    David McCann, a Forensic Scientist Specialist II with the Kentucky State
    Police’s Central Forensic Lab, testified for the defense. He tested swabs
    collected by investigating officers at the scene for DNA, and tested them against
    DNA samples collected from Joy, Kim, and Daniel. Of particular note, the swab
    from the trigger of the gun contained Joy’s DNA, but Daniel and Kim were
    4
    conclusively ruled out as contributors to the DNA profile. The DNA profile from
    a swab of the grip of the gun was too limited for meaningful interpretation.
    Additional facts are discussed below as necessary.
    I.   ANALYSIS
    Daniel asserts a myriad of alleged errors on appeal. First, that the trial
    court erred by allowing three separate pieces of testimonial evidence to be
    admitted in violation of KRE3 404(b), one of which lacked sufficient pre-trial
    notice under KRE 404(c). Second, that the trial court violated her due process
    right to present a defense when it denied her request for expert funds, and that
    the Commonwealth made a prejudicial statement in its closing in relation to
    the denial of funds. Third, that the trial court erred by allowing a Styrofoam
    head used by the medical examiner during her testimony to be admitted into
    evidence. Fourth, that the trial court failed to instruct the jury on both the
    Commonwealth’s burden of proof and extreme emotional disturbance. Finally,
    that the trial court erred by denying Daniel’s request to suppress her statement
    to Jailer Fugate.
    A. KRE 404(b) Evidence
    Daniel’s first argument on appeal is that the trial court erred by
    admitting three separate items of evidence regarding Daniel’s other bad acts
    into evidence in violation of KRE 404(b). She further asserts that one of those
    pieces of evidence lacked the requisite pre-trial notice from the Commonwealth
    in violation of KRE 404(c). We will address each piece of evidence in turn.
    3   Kentucky Rule of Evidence.
    5
    (i.) Shooting into the Air Incident
    Beverly testified that in all the time she spent at Daniel’s trailer, she
    never saw Daniel and Joy get into a physical altercation. She acknowledged
    that they occasionally fought, but that their fights only involved screaming at
    each other. The worst fight she ever witnessed happened about a week before
    Joy’s death. Daniel had misplaced $7 and accused Joy of having it. Joy
    denied having the money, and the argument escalated. Daniel got her pistol,
    walked outside onto the porch, and fired the pistol into the air several times.
    Daniel argues that this evidence was admitted in error both because the
    Commonwealth did not provide adequate notice of its intention to introduce it
    in accordance with KRE 404(c),4 and because it constitutes other bad acts
    evidence which is not otherwise admissible under KRE 404(b). This alleged
    error was properly preserved for our review by Daniel’s objection to the
    evidence on both KRE 404(c) and KRE 404(b) grounds.5
    On the morning of the first day of trial, during a colloquy on the matter
    the Commonwealth acknowledged the testimony it anticipated eliciting from
    Beverly as recounted above regarding the shooting into the air incident. The
    Commonwealth argued first, that the evidence was not KRE 404(b) evidence,
    and it was therefore not required to disclose is intention to use it. Further, it
    asserted that the information was contained in Beverly’s statement to police
    4 “In a criminal case, if the prosecution intends to introduce evidence pursuant
    to subdivision (b) of this rule as a part of its case in chief, it shall give reasonable
    pretrial notice to the defendant of its intention to offer such evidence.” KRE 404(c).
    5   Kentucky Rule of Criminal Procedure (RCr) 9.22.
    6
    and the defense therefore had adequate notice of its intent to introduce it. The
    trial court ruled that the evidence was admissible because Beverly’s statement
    to police was included in the discovery materials provided to the defense by the
    Commonwealth. Later, after voir dire but before the jury was sworn, the trial
    court and the parties had a discussion in chambers and the trial court again
    found that the Commonwealth provided adequate notice of its intent to use
    Beverly’s statement in its case-in-chief.
    Because we are reversing Daniel’s conviction and remanding for a new
    trial on other grounds, we decline to address whether this evidence is otherwise
    admissible under KRE 404(b). We instead leave that determination to the
    sound discretion of the trial court on remand. But we remind the trial court
    that, as with any evidence, it must conduct the requisite balancing test under
    Bell v. Commonwealth6 before ruling on the admissibility of this evidence.
    Specifically, it must find that the evidence is relevant, and that its probative
    value is not substantially outweighed by its potential prejudicial effect.7
    As for the potential lack of KRE 404(c) notice,8 on remand the issue of
    pre-trial notice will be mooted by virtue of the defense’s actual notice of the
    Commonwealth’s use of the evidence in its case-in-chief during the first trial.
    (ii.) Two Dollar Bill Evidence
    6   
    875 S.W.2d 882
    (Ky. 1994).
    7
    Id. at 889. 8
    See Daniel v. Commonwealth, 
    905 S.W.2d 76
    , 77 (Ky. 1995) (holding “A police
    report alone does not provide reasonable pretrial notice pursuant to KRE 404(c).”).
    7
    Cody Abner testified that he owned a small convenience store in the
    community, and that he knew Joy, her parents, Daniel, and Kim. He stated
    that about a week after Joy’s death, Daniel and Kim came to his store together
    and bought some items. They both exited the store. Then, Kim came back in
    by herself to buy something else and paid with a $2 bill. Cody said customers
    rarely pay with $2 bills, so he was looking at it and noticed Joy’s name on it.
    He immediately informed her family.
    Carol, Joy’s mother, identified the $2 bill as Joy’s and testified regarding
    the significance of the $2 bill to Joy. She said that when Joy was a senior in
    high school, she and two of her friends had a kind of senior skip day, and they
    all signed their names and nicknames and the date, June 3, 1992, on the $2
    bill. Carol said Joy had carried the bill behind her ID in her wallet ever since.
    Carol said Joy would have “walked in the desert” before spending it. The bill
    was also identified by Joy’s sister.
    Daniel argues that the trial court abused its discretion in allowing this
    evidence because it is not relevant, and it is other bad act evidence not
    otherwise admissible under KRE 404(b). This alleged error was preserved for
    our review by her contemporaneous objection to the evidence.9 We review a
    trial court’s ruling on the admission of evidence for abuse of discretion.10 A
    9   RCr 9.22.
    10   
    Holt, 250 S.W.3d at 652
    .
    8
    trial court abuses its discretion when it rules in a way that is arbitrary,
    unreasonable, unfair, or unsupported by sound legal principles.11
    As we have already mentioned, to be admissible every piece of evidence
    must first satisfy the Bell test. That is, the evidence must be relevant, and its
    probative value must not be substantially outweighed by its potential
    prejudicial effect.12
    To begin, we struggle to see what probative value, and by extension what
    relevance this evidence has. Cody testified that Daniel and Kim initially came
    into his store together, purchased items, and then left. Then, Kim returned
    without Daniel and purchased something with Joy’s $2 bill. Kim was not on
    trial for Joy’s murder, Daniel was. So the contention that this evidence could
    somehow demonstrate Daniel’s motive to murder Joy is tenuous, at best. Of
    course, one could speculate that Daniel gave Kim the $2 bill to spend, but
    there was absolutely no evidence to suggest this was the case. Further, the
    evidence showed that Joy’s belongings remained in Daniel’s home for three
    weeks following her death, and that Kim was in Daniel’s home following Joy’s
    death. It is therefore possible that Kim came across the $2 bill and took it
    without Daniel’s knowledge. Accordingly, this evidence has very little probative
    value, if any.
    On the other hand, this evidence’s potential prejudicial effect was great.
    Presenting this evidence to the jury suggested that Daniel was somehow
    11   
    English, 993 S.W.2d at 945
    .
    12   
    Bell, 875 S.W.2d at 889
    .
    9
    responsible for the $2 bill being spent, and, therefore, that Daniel was
    motivated to kill Joy for her belongings.
    The trial court abused its discretion by allowing it into evidence without
    proof of Daniel’s direct misappropriation of the sentimentally significant $2 bill.
    (iii.) Jewelry Evidence
    Beverly testified that about a week after Joy died, she went to Daniel’s
    trailer with her daughter. Daniel was going through a box of Joy’s jewelry, and
    Daniel gave some of the costume jewelry to Beverly’s daughter. Daniel asked
    Beverly if she wanted any of the jewelry, but Beverly declined. Beverly said
    that when she got home, she threw away the jewelry Daniel gave to her
    daughter. She further claimed that Daniel and Kim took the real silver and
    gold jewelry and pawned it. Beverly identified the pawn shop at which Daniel
    and Kim allegedly pawned the jewelry. Beverly was the only witness that
    testified to this, and there was no other evidence that the jewelry was pawned,
    such as a pawn receipt.
    Daniel argues that this evidence was improperly admitted in violation of
    KRE 404(b). While this alleged error was properly preserved for our review, we
    decline to address it on the merits due to our reversal on other grounds.
    Instead, we leave the determination of whether it is admissible to the discretion
    of the trial court on remand. We reiterate that the trial court must conduct a
    balancing test under Bell before ruling on its admissibility.
    B. Expert Funds
    10
    Daniel next asserts that the trial court committed reversible error when it
    denied her motion for expert funds under KRS13 31.110(1)(b) and KRS
    31.185(1). This issue was properly preserved for our review by Daniel’s pre-
    trial, ex parte motion for expert funds and subsequent objections to the trial
    court’s adverse rulings on the issue.14 This Court reviews a trial court’s denial
    of a defendant’s motion for expert funds for abuse of discretion.15 A trial court
    abuses its discretion when it rules in a way that is arbitrary, unreasonable,
    unfair, or unsupported by sound legal principles.16
    Because of the fundamental principle that a defendant’s indigence17
    should not serve to deprive her of her due process right to present a defense,
    KRS 31.110(1) provides that a needy person who is charged with a serious
    crime is entitled
    (a) To be represented by an attorney to the same extent
    as a person having his or her own counsel is so
    entitled; and
    (b) [To] be provided with the necessary services and
    facilities of representation, including investigation
    and other preparation. The courts in which the
    defendant is tried shall waive all costs.18
    In addition, KRS 31.185(1) directs that
    [a]ny defending attorney operating under the
    provisions of this chapter is entitled to use the same
    13   Kentucky Revised Statute.
    14   RCr 9.22.
    15   McKinney v. Commonwealth, 
    60 S.W.3d 499
    , 505 (Ky. 2001).
    16   
    English, 993 S.W.2d at 945
    .
    17   Daniel’s indigent status is not contested by the Commonwealth.
    18   (Emphasis added).
    11
    state facilities for the evaluation of evidence as are
    available to the attorney representing the
    Commonwealth. If he or she considers their use
    impractical, the court of competent jurisdiction in
    which the case is pending may authorize the use of
    private facilities to be paid for on court order from the
    special account of the Finance and Administration
    Cabinet.
    Several decades of case law in this area have distilled the test for whether
    a defendant made a sufficient showing of need for expert funds into the
    following: “1) whether the request has been pleaded with requisite specificity;
    and 2) whether funding for the particularized assistance is ‘reasonably
    necessary’; 3) while weighing relevant due process considerations.”19 Further,
    “our review of a trial court's denial of funds pursuant to KRS 31.110 is limited
    to the reasons actually presented to the trial court.”20
    At the outset, we reiterate that the only issue the jury had to decide in
    this case was whether Joy died as the result of homicide or suicide. On June
    20, 2018, the defense filed an ex parte motion for expert funds. Specifically,
    the defense requested funds to hire a crime scene reconstructionist to help the
    defense review the Commonwealth’s evidence against Daniel, to conduct
    additional testing and analysis of that evidence, to provide expert testimony at
    trial, and to aid the defense in cross-examining and impeaching the
    Commonwealth’s witnesses regarding that evidence. The defense argued the
    following as grounds for the trial court to grant said funds:
    19   Benjamin v. Commonwealth, 
    266 S.W.3d 775
    , 789 (Ky. 2008)
    20   
    McKinney, 60 S.W.3d at 505
    .
    12
    Imojean Daniel is charged in this indictment with
    Murder, a Capital Offense. The case involves an
    accusation that Imojean Daniel killed Joy Turner by
    shooting her in the head. The case was initially
    investigated as a suicide however; Ms. Daniel was
    subsequently indicted for murder. There is significant
    evidence that Ms. Turner was depressed and suicidal
    at the time leading up to her death. In addition, the
    evidence collected and some not collected by the
    Kentucky State Police indicate that suicide cannot be
    ruled out. Ms. Daniel is facing the potential of life in
    prison therefore; she must be afforded this expert
    assistance.
    The defense further identified Shelly Rice as the reconstructionist that it
    intended to retain along with Ms. Rice’s anticipated fees.
    The trial court subsequently entered an order denying the defense’s
    motion. The court cited solely to Davenport v. Commonwealth,21 to be
    discussed infra, and found that the defense’s goals in requesting expert
    funding could be satisfied solely by cross-examination of the Commonwealth’s
    witnesses.
    On June 22, the defense tendered a written motion for reconsideration
    and was heard on the matter during an ex parte hearing on the same day. The
    written motion, in addition to the reasons articulated in the defense’s first
    motion, stated:
    Even the Medical Examiner, when interviewed by
    defense counsel, indicated that she would need to
    know more information to completely rule out
    suicide…Defense counsel needs the assistance of an
    expert to examine the scene, provide information
    about what proper investigation techniques were used
    and what proper techniques were not used. Very little
    evidence from the scene was collected by the Kentucky
    21   
    177 S.W.3d 763
    (Ky. 2005).
    13
    State Police. An expert in this field can provide
    defense counsel the information that is needed to
    conduct a proper cross-examination into what should
    have been done to definitely decide whether a homicide
    or a suicide took place that evening. To adequately
    and ethically represent Ms. Daniel, Defense counsel
    needs access to the funds to hire a crime scene
    Reconstructionist.
    During the hearing on the motion counsel argued verbally to the court that the
    court’s reliance on Davenport in denying its first motion was misplaced because
    the Davenport case says that the reason [the defense]
    did not get the expert funds for the reconstructionist is
    that all they were trying to do is combat, in the
    investigation, what was done and was not done right.
    And [the court] said that could be brought out in
    cross. The issue that we have here is we’re needing
    this reconstructionist for a specific purpose. Our
    theory of the case, as you just stated, has always been
    that Joy Turner [completed] suicide. And, granted that
    it is our position that the Kentucky State Police did not
    do their job correctly with the investigation, in order to
    prove our theory of the suicide it’s going to come down
    to having an expert to show that with the position of
    the body, with the blood splatter that was in the
    photos that we were given by KSP,22 that our theory is
    plausible and correct. So I think the difference
    between this one and Davenport is we’re not just trying
    to say, ‘well this is all the things that KSP did wrong.’
    We’re trying to prove our theory.
    The trial court denied the motion to reconsider and suggested the
    defense talk to the Medical Examiner regarding her conclusions and what they
    were based on. Defense counsel tried to explain that her conversations with
    the Medical Examiner were the very reason she determined a reconstructionist
    was needed; because the Medical Examiner told her that, without more
    22   Kentucky State Police.
    14
    information, she could not rule out suicide. The trial court cut the defense’s
    explanation short and told her those were things that could be argued to the
    jury.
    While both the initial motion and motion to reconsider indicate that Ms.
    Rice’s curriculum vitae was filed with them, a sworn affidavit from Ms. Rice was
    not filed until August 17th.
    Ms. Rice’s affidavit stated the following:
    5. My preliminary review and opinion is this incident
    exhibits characteristics of an equivocal death scene.
    Equivocal death scenes are those that have
    questionable traits of the manner of death.
    6. Equivocal death scenes require careful investigation
    and reconstruction techniques to determine the final
    conclusion of suicide or homicide. In my training,
    these types of deaths, specifically shooting incidents,
    are extensively covered in crime scene reconstruction,
    shooting reconstruction, and homicide investigation
    due to the sensitivity of such cases.
    7. Upon more careful review and reconstruction of this
    case, I could offer further opinions of whether Ms.
    Turner was capable of committing suicide and if the
    scene is more consistent with this manner of death.
    8. Based on the physical evidence in the photographs
    and other discovery materials, there are lingering
    questions as to the manner of death in which the
    fairness of a trial should be brought forth.
    Ms. Rice’s curriculum vitae reflected her extensive training in various areas of
    crime scene investigation and reconstruction.
    On August 27, the first day of trial, after voir dire but before the jury was
    sworn, the trial court had an ex parte discussion with the defense. The court
    said it had since put additional thought into the defense’s motion, and it still
    15
    believed the defense could create reasonable doubt through cross-examination.
    The defense responded that it did not believe this to be a case where cross-
    examination would be enough. Their theory of the case was that Joy’s death
    was the result of suicide, and that the police’s investigation into the case was
    insufficient to prove that she was murdered. The defense attorneys pointed out
    that they are not experts in crime scene investigation, and therefore having
    access to such an expert was crucial to the preparation and presentation of
    their case.
    Indeed, during Det. Browning’s cross-examination, the defense asked
    Det. Browning if he did any blood enhancement testing at the scene. Det.
    Browning said he did not, and that he did not know what blood enhancement
    testing, specifically Luminol,23 was. He further said that he had never heard of
    using blood enhancement techniques to determine the origin from which a shot
    was fired.
    After Det. Browning’s testimony, the defense told the trial court that his
    testimony was precisely why they needed expert funds. The trial court asked if
    there was a learned treatise they could have consulted and cross-examined
    him with. The defense pointed out that learned treatises can only come in
    through a qualified expert, and Det. Browning would not even acknowledge
    that such testing existed and therefore could not be qualified as an expert. The
    Commonwealth acknowledged that it would have objected if the defense had
    23 Luminol is a chemical reagent used to test for the presumptive presence of
    blood. See 
    82 A.L.R. 5th 67
    (Originally published in 2000).
    16
    tried to cross-examine him with a learned treatise. Later, during the
    Commonwealth’s closing arguments, it used Det. Browning’s testimony against
    the defense by stating:
    and then, [defense] counsel asked Detective
    Browning…a question about some kind of a blood
    enhancement test to show where a shot was fired
    from. Det. Browning had never even heard of that.
    State police don’t use that, and I very facetiously asked
    him if the state police were holding that back from
    him, of course they weren’t. That might sound good
    on these TV programs, maybe, CSI or something. But
    in the real world they’re not aware of any kind of tests
    like that. And I submit to you ladies and gentlemen
    that if there were a test like that, the defense would be
    coming in to show how terrible an officer he is because
    he didn’t know about the test.
    The defense objected to this. It argued that it tried to show that such tests
    actually exist through their own expert, but their motion was denied. The trial
    court said that it did not want to get into the merits of that argument and
    allowed the Commonwealth to continue.
    As previously mentioned, our analysis of this issue must focus on
    whether the defense’s claim was pleaded with requisite specificity, and whether
    the funding was reasonably necessary, while considering relevant due process
    considerations.
    To begin, the trial court based its denial of the defense’s motion for
    funding solely on Davenport, but we agree with the defense’s position that case
    Davenport is distinguishable from the case now before us. Davenport was
    convicted of the murder and robbery of Patrick Perkins.24 One of Perkins’
    24   
    Davenport, 177 S.W.3d at 766
    .
    17
    friends discovered his body in his home, which was “in disarray, with blood on
    the wall and furniture overturned.”25 Perkins’ pants pockets were turned out,
    and one of his pistols was missing.26 He was shot four times, and had
    defensive wounds on his arms and wrists.27
    Davenport’s nephew testified that he drove Davenport to Perkins’ home
    on the night he was killed.28 Shortly after Davenport entered the home his
    nephew saw him “bounce off the front door,” and heard a male voice that was
    not his uncle’s cry “please, don’t kill me.”29 Scared, Davenport’s nephew drove
    away, leaving Davenport at Perkins’ home.30 Davenport later instructed his
    nephew to deny leaving him at Perkins’ home that night.31 Davenport
    ultimately admitted being in Perkins’ home on the night he was killed, but
    denied shooting him.32
    On appeal to this Court, Davenport argued that the trial court
    reversibly erred by denying his motion for funds to hire a crime scene expert.33
    The sole basis for Davenport’s motion was that “the investigation into [the
    victim’s] death was insufficient and was not conducted pursuant to commonly
    25
    Id. 26
      Id.
    27 
      Id.
    28
       Id. at 767.
    29 
      Id.
    30
       Id.
    31 
      Id.
    32
       Id. at 766-67.
    33 
      Id. at 773.
    18
    
    accepted standards.”34 In support, the defense pointed to several steps the
    investigating officers failed to take: “Perkins’ core temperature was not taken to
    determine the specific time of death, no effort was made to determine the
    owners of several weapons found in Perkins’ home, and neither fingerprints nor
    blood samples were taken from Perkins’ home.”35
    This Court held that the trial court properly denied Davenport’s motion
    for expert funding, holding:
    [f]unds will not be provided pursuant to KRS 31.110 so
    that defense counsel may conduct a “fishing
    expedition.” Rather, defense counsel must provide
    specific information that he or she expects the expert
    to provide at trial, and the request should be denied
    where defense counsel is only able to express the need
    for an expert in general terms. A “general” request is
    precisely the type made by Appellant in the present
    matter. Despite repeated requests by the trial court,
    defense counsel was unable to provide any specific
    reasons why an expert was needed, or any specific
    information an expert would be able to provide.
    Rather, defense counsel sought funds for an expert
    who would undermine the sufficiency of the
    investigation. We agree with the trial court that this
    purpose could be, and in fact was, reached by cross-
    examination of the investigating officers into what
    procedures were and were not taken in the
    investigation.36
    Again, we believe Davenport is distinguishable from the case at bar.
    First, the victim in Davenport was unquestionably a victim of homicide,
    meaning that the only issue for the jury in that regard was the identity of the
    34
    Id. 35
       Id.
    36 
      Id. (internal citations omitted).
    
    19
    shooter. Here, Joy’s manner of death was such a contestable issue that even
    the medical examiner could not determine whether Joy died as the result of
    homicide or suicide. Further, the evidence against Daniel was not quite as
    overwhelming as the evidence against Davenport. More importantly, Daniel
    was very specific about the expert she wanted and what she believed that
    expert could contribute to her defense. That is, to draw her own conclusions
    about whether Joy’s death was consistent with a suicide—the most critical
    issue in the case—based on her expertise and to explain why the police’s
    investigation into the case was insufficient to prove beyond a reasonable doubt
    that Joy died as a result of homicide. And, as the defense pointed out, their
    lack of expertise in what should have been done, or even what could have been
    done, put them at a great disadvantage.
    We instead feel that this case more closely resembles one of the few cases
    in which this Court has ruled that a trial court erred by denying expert funds:
    Sommers v. Commonwealth.37 Sommers was convicted of murdering two girls,
    a 12- and 13-year old, whose parents had abandoned them in the care of
    Sommers and his wife in the summer of 1988.38 In December of 1988 the
    Sommers’ house burned down, and the girls’ bodies were found in the debris.39
    Forensic tests showed the girls did not die from smoke inhalation or the fire,
    but from suffocation prior to the fire.40 The arson investigators determined the
    37   
    843 S.W.2d 879
    (Ky. 1992).
    38
    Id. at 880. 39
      Id.
    40
       Id.
    20
    
    physical evidence was consistent with the fire being intentionally set.41 The
    Commonwealth’s theory at trial was that Sommers had been sexually abusing
    the girls, killed them to keep them from telling anyone, and then burned his
    house down to cover up the murders.42
    This Court held that the trial court committed reversible error when it
    failed to grant Sommers’ motion for funding for “a pathologist and an arson
    investigator to serve as consultants and/or witnesses for the defense.”43 After
    discussing Hicks v. Commonwealth,44 Smith v. Commonwealth,45 and Simmons
    v. Commonwealth,46 cases in which the denial of expert funding was upheld on
    appeal, this Court concluded that Sommers’ case was “vastly different.”47
    First, in Sommers’ case, “both the cause of death and the genesis of the
    fire were matters of crucial dispute, resolvable only through circumstantial
    41
    Id. 42
       Id.
    43
       Id. at 883.
    44 670 
    S.W.2d 837 (Ky. 1984) (holding defendant failed to demonstrate how a
    defense serologist could assist him, when sophisticated tests performed by a state
    crime lab serologist strongly indicated that blood at the crime scene was the
    defendant’s blood).
    45  
    734 S.W.2d 437
    (Ky. 1987) (holding the defendant failed to demonstrate
    reasonable necessity for a ballistics or crime scene reconstruction expert when his
    stated purpose for those experts was to prove his mental state during the commission
    of his crimes).
    
    46746 S.W.2d 393
    (Ky. 1988) (holding the defendant failed to demonstrate
    reasonable necessity for expert funds for two independent psychiatrists, two
    independent psychologists, and one licensed clinical social worker. Defendant was
    examined at the Kentucky Correctional Psychiatric Center by a psychiatrist and
    consulted with a social worker, both of whom testified on his behalf at trial.
    Defendant stated only in general terms that the requested expert assistance was
    needed to adequately prepare for trial).
    47   
    Sommers, 843 S.W.2d at 884
    .
    21
    evidence and expert opinion.”48 Further, Sommers’ counsel did not fail to
    demonstrate reasonable necessity:
    [i]n a memorandum in support of its motion, the
    defense pointed out that there were no eyewitnesses to
    the alleged offenses, and the defendant denied
    committing either homicide or arson. It advised the
    court that there were material issues as to the cause of
    death and the nature and cause of the fire, and that
    experts from the medical examiner's office, the fire
    marshal's office and the Kentucky State Police were
    witnesses for the Commonwealth. It argued that
    different experts might observe the facts differently, or
    might reach different conclusions even given identical
    facts. Counsel maintained that without expert
    assistance he could not effectively investigate the
    circumstances, choose a course of defense, cross-
    examine the state's witnesses, or challenge the validity
    of their opinions.49
    Accordingly, this Court held it was reversible error for the trial court to deny
    Sommers the requested funding.50
    Again, in this case defense counsel was very specific about what it
    sought to gain through the use of a crime scene expert. It further identified the
    expert it wanted, the qualifications of that expert, a sworn affidavit from that
    expert,51 and her anticipated fee. The issue upon which counsel sought expert
    assistance was the most crucial issue in that case: whether Joy died as the
    result of homicide or suicide. And, based upon the fact that the police’s
    48
    Id. 49
       Id.
    50 
      Id. at 885.
    51 
    Although Ms. Rice’s affidavit was filed relatively late in the game, it was still
    before the trial court to consider before the court made its final ruling on this matter
    on the first day of trial.
    22
    investigation was insufficient to convince the Medical Examiner of Joy’s cause
    of death, there is reason to believe that expert assistance could have helped the
    defense explain why the investigation was insufficient to prove beyond a
    reasonable doubt that Joy was murdered.
    Accordingly, we hold that Daniel’s motion for expert funds was pleaded
    with requisite specificity, and that it demonstrated reasonable necessity for the
    expert funds it sought. The trial court therefore abused its discretion in failing
    to grant Daniel’s motion for expert funds. Accordingly, we reverse Daniel’s
    conviction and remand for a new trial consistent with this opinion.
    As a final note, we feel it is important to point out that the dissent’s
    comparison of this case to Commonwealth v. Ferguson, 
    581 S.W.3d 1
    (Ky.
    2019), is incomplete and misleading. In Ferguson, the victim suffered two
    gunshot wounds to the head.
    Id. at 3.
    Further, the Medical Examiner in
    Ferguson believed that the victim’s gunshot wounds were likely not self-
    inflicted due to the distance from the victim that one of the shots was fired.
    Id. at 15-16. C.
    Styrofoam Head
    Daniel next asserts that the trial court committed reversible error when it
    allowed a Styrofoam head used by Dr. Lippincott for demonstrative purposes to
    be entered into evidence. This alleged error was properly preserved for our
    review by Daniel’s contemporaneous objection to the Styrofoam head being
    admitted into evidence.52 We review a trial court’s ruling on the admission of
    52   RCr 9.22.
    23
    evidence for abuse of discretion.53 A trial court abuses its discretion when it
    rules in a way that is arbitrary, unreasonable, unfair, or unsupported by sound
    legal principles.54
    During Dr. Lippincott’s testimony, she used a Styrofoam head to
    demonstrate both approximately where the entrance wound on Joy’s head was
    and the general trajectory of the bullet after it entered her skull. She
    acknowledged that the Styrofoam head was not to scale, i.e., was not precisely
    the same size and shape of Joy’s head. Dr. Lippincott used the measurements
    of Joy’s wound contained in her autopsy notes to determine approximately
    where the entrance wound was, which she marked on the skull prior to her
    testimony. During her testimony she pushed a stick into the Styrofoam head
    to demonstrate the general trajectory of the bullet.
    Daniel did not object to Dr. Lippincott’s testimony or the use of the
    Styrofoam head as a visual aid. However, Daniel did object to the Styrofoam
    head being entered into evidence as an exhibit, asserting that it was only
    meant to be used for demonstrative purposes. The trial court overruled the
    objection on the grounds that the main issue for the jury to decide was whether
    Joy’s death was the result of homicide or suicide and that trajectory is an
    important consideration in making that decision. Further, Dr. Lippincott is a
    forensic pathologist and is therefore a qualified expert to present that kind of
    evidence.
    53   Ross v. Commonwealth, 
    455 S.W.3d 899
    , 910 (Ky. 2015).
    54   
    English, 993 S.W.2d at 945
    .
    24
    Daniel now argues to this Court, primarily under Rankin v.
    Commonwealth,55 that the Commonwealth’s use of the Styrofoam head was not
    a “fair comparison,” and is therefore reversible error. Daniel contends that the
    Styrofoam head was highly prejudicial because it bolstered the
    Commonwealth’s theory that Daniel shot Joy in the head. In addition, Daniel
    argues that the Styrofoam head was not probative of anything because it was
    not a scale model of Joy’s head. However, this Court is inclined to agree with
    the Commonwealth’s assertion that the Styrofoam head is more akin to the
    visual aid evidence approved of in Stringer v. Commonwealth,56 than the
    experiment evidence of Rankin. But, at any rate, the evidence would still be
    admissible under a Rankin analysis.
    At the outset we note that Daniel’s assertion that this evidence bolstered
    the Commonwealth’s theory of the case is simply incorrect. Dr. Lippincott
    never stated that the location of the entrance wound or the trajectory of the
    bullet was consistent with homicide. And, Dr. Lippincott later stated during
    cross-examination that she was unable to make a ruling on Joy’s manner of
    death; she could rule out neither homicide nor suicide. That said, we will next
    address the parties’ respective arguments under our existing case law.
    Stringer was a child sex abuse case wherein we held that the trial court
    did not err by allowing the victim to use anatomically correct dolls while
    55   
    327 S.W.3d 492
    (Ky. 2010).
    56   
    956 S.W.2d 883
    (Ky. 1997).
    25
    describing the acts Stringer perpetrated upon her.57 We held simply that the
    child’s “use of the dolls was no different than the employment by a witness of
    any other appropriate visual aid.”58
    Rankin, in contrast, was slightly more complex. Rankin was convicted of
    first-degree criminal abuse and wanton murder.59 Rankin was babysitting his
    girlfriend’s children, 6-month-old C.A. and 2-year-old M.A., while his girlfriend
    was at work.60 Rankin claimed that he put the children down for a nap,
    leaving C.A. in her car seat on the floor.61 When he checked on the children
    approximately an hour later, “he found the car seat tipped over and C.A. on the
    floor with M.A. kneeling on her neck.”62 Tragically, C.A. was later pronounced
    dead.63
    One of Rankin’s arguments on appeal to this Court was that the trial
    court erred by allowing the Commonwealth to play a video made by a social
    worker involved in the case.64 The video depicted M.A. “interacting with a
    sand-filled teddy bear weighted to approximate C.A.'s weight and placed in a
    car seat like C.A.'s on the floor of the social worker's interview room.”65 The
    57
    Id. at 886. 58
       Id. at 887.
    59 
      
    Rankin, 327 S.W.3d at 494
    .
    60
    Id. at 495. 61
       Id.
    62
       Id.
    63 
      Id.
    64 
      Id. at 498.
    65 
      Id.
    26
    
    video shows M.A. trying to lift the teddy bear from the car seat, and failing.66
    Rankin argued that the exhibit was prejudicially misleading because, though
    they had the same weight, the teddy bear and C.A.’s body differed in other
    respects and therefore the experiment could not provide a reliable
    comparison.67 This Court disagreed with Rankin’s argument and reasoned
    that
    the Commonwealth did not offer the social worker's
    video of M.A. as a simulation of what happened to
    C.A., but rather as proof tending to show that the two-
    year-old was not strong enough to lift his fourteen-
    pound sister out of her car seat, thus casting doubt on
    Rankin's statement to police that he found the
    children on the floor with M.A. kneeling on C.A.'s neck.
    For this limited purpose, the weighted teddy bear
    was sufficiently like an infant to give the
    experiment some probative value…In short, the
    experiment's obvious limitations can reasonably be
    deemed to go to its weight as evidence, not to its
    admissibility.68
    Accordingly, although we feel the Styrofoam head is more comparable to
    the visual aid evidence in Stringer than the out-of-court experiment evidence in
    Rankin, we hold that it would be admissible through the lens of either case.
    Dr. Lippincott used the Styrofoam head as a visual aid to demonstrate the
    general area where the bullet entered Joy’s skull, and the resultant bullet path
    and nothing more. Thus, it was an appropriate visual aid, and Stringer is not
    violated. Additionally, under a Rankin analysis, because Dr. Lippincott’s
    66
    Id. 67
       Id.
    68 
      Id. (emphasis added).
    27
    
    testimony was clear that the Styrofoam head was not to scale and was meant
    only to be a demonstration of the approximate locations of the entrance wound
    and bullet path, the Styrofoam head was sufficiently similar to Joy’s for that
    limited purpose to give it probative value. And, as previously discussed, the
    evidence was neutral on the issue of homicide versus suicide and therefore was
    not prejudicial. The trial court accordingly did not abuse its discretion in
    allowing this evidence.
    D. Jury Instructions
    Daniel next asserts that the trial court committed two reversible errors in
    relation to the jury instructions given in this case. First, she asserts that the
    trial court erred by failing to give a stand-alone instruction on the
    Commonwealth’s burden of proof. She also argues that the trial court erred by
    failing to instruct the jury on extreme emotional disturbance (EED). These
    alleged errors were properly preserved by Daniel’s tender of instructions on the
    Commonwealth’s burden of proof and EED, respectively.69 We review a trial
    court’s ruling regarding jury instructions for abuse of discretion.70 A trial court
    abuses its discretion when it acts in a way that is arbitrary, unreasonable,
    unfair, or unsupported by sound legal principles.71 With this in mind, we
    address each argument in turn.
    i.) Burden of Proof
    69   RCr 9.54(2).
    70   Ratliff v. Commonwealth, 
    194 S.W.3d 258
    , 274 (Ky. 2006).
    71   
    English, 993 S.W.2d at 945
    .
    28
    Daniel first contends that the trial court abused its discretion by
    declining to give a stand-alone instruction on the Commonwealth’s burden of
    proof. Daniel tendered the following instruction on “Burden of Proof”:
    The burden of proof in this case rests on the
    prosecution from the beginning to the end of trial to
    establish, beyond a reasonable doubt, every fact
    essential to the conviction of Imojean Daniel of a
    particular offense. Ms. Daniel has no burden to
    sustain. If upon the whole case, you have a
    reasonable doubt as to Ms. Daniel’s guilt, you shall
    find her not guilty.
    The trial court declined to give this instruction. It agreed with the
    Commonwealth that, because of the other instructions given, a stand-alone
    instruction on burden of proof was not necessary.72 The instruction ultimately
    given to the jury on “Presumption of Innocence” provided:
    The law presumes Imojean Daniel to be innocent of a
    crime, and the indictment shall not be considered as
    evidence or as having any weight against her. You
    shall find Imojean Daniel not guilty unless you are
    satisfied from the evidence alone and beyond a
    reasonable doubt that she is guilty. If upon the whole
    case you have a reasonable doubt that she is guilty,
    you shall find her not guilty.
    On appeal to this Court, Daniel seems to argue that without the stand-
    alone instruction on burden of proof she proposed, the jury would not know
    that Daniel never had a burden of proof. We disagree.
    72 There is no video record of the conversation between the trial court and
    respective counsel regarding jury instructions. We instead refer to the narrative
    statement provided by the trial court.
    29
    Instead, we believe the reasoning of the Court of Appeals in Patterson v.
    Commonwealth is applicable to this issue. Patterson held that
    [i]t is entirely unreasonable to believe that a juror,
    without benefit of a burden of proof instruction, could
    conclude other than that it is for the Commonwealth
    to bear this obligation. It is clearly evident through
    the presumptions of innocence and reasonable doubt
    instructions upon whom the burden lies without the
    need for a specific, separate instruction.73
    Here, in addition to the “Presumption of Innocence” instruction, the jury
    was informed by the defense once during its opening statement, and three
    times during its closing argument that the Commonwealth bore the burden of
    proof to prove beyond a reasonable doubt that Daniel killed Joy. The
    Commonwealth also acknowledged this during its opening statement. It is
    therefore untenable that the jury did not know that the Commonwealth bore
    the burden of proof absent Daniel’s proposed instruction. The trial court did
    not abuse its discretion by declining to give that instruction to the jury.
    ii.) Extreme Emotional Disturbance
    Daniel next argues that the trial court abused its discretion in failing to
    instruct the jury on EED. Daniel’s tendered murder instruction required the
    jury to find that Daniel was not acting under EED when she shot Joy. The trial
    court declined to give the instruction. It reasoned that the absence of EED was
    not an element the Commonwealth was required to prove, and Daniel had
    73 
    630 S.W.2d 73
    , 75 (Ky. App. 1981). This holding has previously been cited
    favorably by this court. See, e.g., Herp v. Commonwealth, 
    491 S.W.3d 507
    , 513 (Ky.
    2016); Patterson v. Commonwealth, 2005-SC-000831-MR, 
    2007 WL 541923
    , at *8 (Ky.
    Feb. 22, 2007); and Cissell v. Commonwealth, 2004-SC-0487-MR, 
    2006 WL 141613
    , at
    *7 (Ky. Jan. 19, 2006).
    30
    presented no evidence that she acted under EED. We agree with the trial
    court’s ruling.
    Trial courts have a duty to instruct the jury on the whole law of the
    case.74 But that duty does not extend to placing speculative theories before the
    jury merely because the testimony includes some basis for the speculation.75 A
    jury instruction on EED in particular “must be supported by some definite,
    non-speculative evidence.”76 The evidence must show that there was an
    identifiable triggering event77 which caused the defendant to “suffer a
    temporary state of mind so enraged, inflamed, or disturbed as to overcome [the
    defendant’s] judgment, and to cause [the defendant] to act uncontrollably from
    an impelling force of the extreme emotional disturbance rather than from evil
    or malicious purposes.”78
    Daniel contends that one of the motives the Commonwealth proposed
    was that Daniel was jealous of Joy. More specifically, that Daniel was
    interested in Joy romantically, and Joy did not feel the same way about her.
    Therefore, Daniel reasons, if the jury ultimately found that she shot Joy, it
    would have been reasonable for the jury to also conclude that there was a
    triggering event that night that caused the shooting. The Commonwealth itself
    presented no evidence of a triggering event, and Daniel’s theory of the case
    74   RCr 9.54(1).
    75   Lackey v. Commonwealth, 
    468 S.W.3d 348
    , 355 (Ky. 2015).
    76 Padgett v. Commonwealth, 
    312 S.W.3d 336
    , 341 (Ky. 2010) (internal
    quotation marks omitted).
    77   Driver v. Commonwealth, 
    361 S.W.3d 877
    , 888 (Ky. 2012).
    78   
    Padgett, 312 S.W.3d at 341
    .
    31
    from beginning to end was that Joy killed herself. Accordingly, the evidence
    was not sufficient to warrant an instruction on EED, and the trial court did not
    abuse its discretion in declining to give such instruction.
    E. Suppression of Daniel’s Statement to Deputy Jailer Fugate
    Daniel’s final argument is that the trial court erred by failing to suppress
    the statement she made to Deputy Jailer Nelda Fugate. This alleged error was
    properly preserved by Daniel’s pre-trial motion to suppress the statement, and
    subsequent contemporaneous objection to the testimony at trial.79 Our review
    of a trial court’s ruling on the suppression of evidence is a two-step process:
    “[w]e review the trial court's factual findings for clear error, and deem
    conclusive the trial court's factual findings if supported by substantial
    evidence. The trial court's application of the law to the facts we review de
    novo.”80
    As both parties agree about the facts surrounding this issue, we hold
    that the following facts are supported by substantial evidence and the first step
    of our review is therefore satisfied. Jailer Fugate testified during the
    suppression hearing that she had worked for the Breathitt County Fiscal Court
    for four years. Her primary duty was to transport female prisoners to and from
    jail, court, doctor’s appointments, or wherever else they needed to go. When
    she transports a prisoner, she is required to fill out a “body receipt” to be
    79   RCr 9.22.
    
    80 Will. v
    . Commonwealth, 
    364 S.W.3d 65
    , 68 (Ky. 2011).
    32
    signed by the person receiving the prisoner. The body receipt includes things
    like the date, time, and charges against the prisoner. Jailer Fugate said it is
    her practice to read to the person she is transporting the charges against them.
    This is not something required of her by her employer, but she began doing it
    because in her experience most people ask what they are charged with.
    Jailer Fugate said she picked Daniel up from the Jackson Police
    Department after Daniel was arrested. Daniel seemed sober and not in need of
    any medical attention. Jailer Fugate then put Daniel in the back of her
    transport vehicle. While they were still sitting in the parking lot of the Jackson
    Police Department, Jailer Fugate informed Daniel she was charged with
    murder. Daniel immediately replied that “it wasn’t murder, it was assisted
    suicide.” Fugate said that she believed what Daniel said was incriminating and
    she therefore did not say anything else to Daniel. As soon as she dropped
    Daniel off, she wrote down what Daniel said. KSP officers later came and
    interviewed her, and she told them what Daniel said. Based on this testimony,
    the defense argued that Daniel’s statement should have been suppressed
    because Jailer Fugate did not read Daniel her Miranda rights81 and Jailer
    Fugate knew or should have known that reading Daniel her charges would
    elicit an incriminating statement.
    In its order denying Daniel’s motion to suppress the statement, the trial
    court noted that the parties stipulated that Daniel was in custody and that
    Jailer Fugate was a state actor. Therefore, the only legal issue the trial court
    81   See Miranda v. Arizona, 
    384 U.S. 436
    (1966).
    33
    ruled on, and consequently the only issue for our review, was whether or not
    Jailer Fugate’s statement to Daniel was an interrogation or its functional
    equivalent.82 The trial court ultimately found that Daniel’s statement was
    voluntary and was not the result of a custodial interrogation. It is this finding
    that we now review de novo.
    “Interrogation” under Miranda and its progeny means both the colloquial
    understanding of the word, and its broader definition of “any words or actions
    on the part of police (other than those normally attendant to arrest and
    custody) that the police should know are reasonably likely to elicit an
    incriminating response from the suspect…focus[ing] primarily upon the
    perceptions of the suspect, rather than the intent of the police.”83
    Here, it is clear that Jailer Fugate never asked Daniel any questions.
    Therefore, the issue becomes whether Jailer Fugate knew, or should have
    known, that informing Daniel that she was charged with murder was
    reasonably likely to elicit an incriminating response from her. We hold that,
    under the facts of this case, merely telling a prisoner what she was charged
    with was not an interrogation.
    First, most people who are informed that they have been charged with a
    crime will do the exact opposite of saying something incriminating. They are
    82See Smith v. Commonwealth, 
    312 S.W.3d 353
    , 358 (Ky. 2010) (holding that
    Miranda warnings are only required when a person is in the custody of a state actor
    conducting an interrogation).
    83 Wells v. Commonwealth, 
    892 S.W.2d 299
    , 302 (Ky. 1995) (quoting Rhode
    Island v. Innis, 
    446 U.S. 291
    , 301 (1980)).
    34
    likely to say something like “I didn’t do anything” or, in this instance, “I didn’t
    murder anyone.”
    Further, we have held in other cases that similar conduct to that of Jailer
    Fugate did not constitute an interrogation. For example, in Taylor v.
    Commonwealth, officers were holding Taylor in handcuffs and informed him
    that “he was not under arrest and that they had been told he possessed
    drugs.”84 Taylor voluntarily responded that he had illegal drugs in his
    pockets.85 Taylor argued to this Court, as Daniel does now, that his
    incriminating statement should have been suppressed because he was not read
    his Miranda rights prior to making it and the officers’ statement to him was the
    functional equivalent of an interrogation.86 This Court disagreed and held that
    “[t]elling an individual of the reason he is being stopped by police is not an
    interrogation.”87
    In another case, Wells v. Commonwealth, Wells entered the home of a
    man named Charlie Robinson, attempted to rob him, and stabbed him in the
    back.88 Robinson was able to survive the attack long enough to call 911 and
    identify Wells as his attacker, but later died as a result of his injuries.89 After
    84   
    182 S.W.3d 521
    , 522 (Ky. 2006).
    85
    Id. at 522. 86
      Id. at 523.
    87 
      Id. at 524.
    88   
    892 S.W.2d 299
    , 300-01 (Ky. 1995).
    89
    Id. at 301. 35
    Wells left Robinson’s house he stole $500 in government food stamps from a
    bank.90
    Wells was initially arrested for theft, but during his interview with police
    one of the officers “told the other officers that she would need additional time to
    complete paperwork on an expected additional murder charge and to inform
    the jail officials.”91 Wells became irate and demanded to know what she was
    talking about.92 The officer explained that Wells would be charged with first-
    degree assault, which would be elevated to murder if the victim died.93 Wells
    then asked if the officer was talking about “that thing on Iowa (street) with old
    Charlie (the victim).”94 It was this statement that Wells argued should have
    been suppressed, as he believed it was the functional equivalent of an
    interrogation.95
    This Court disagreed and held that the officer’s statement to the other
    officers “cannot be considered the functional equivalent of questioning. Those
    statements may well be considered ‘normally attendant to arrest and custody.’
    Furthermore, such a statement does not evidence a functional equivalent to
    interrogation which would require suppression.”96
    90
    Id. 91
       Id.
    92 
      Id.
    93 
      Id.
    94 
      Id.
    95 
      Id. at 302.
    96
       Id. (internal citation omitted).
    
    36
    While the facts of this case are not precisely on point with those in Taylor
    and Wells, the principles remain the same. First, there is a strong argument
    that, for Jailer Fugate, reading charges to a prisoner she is transporting is a
    statement “normally attendant to arrest and custody,” as she testified that it is
    her practice to do so with every prisoner she transports. But even if that were
    not the case, we can discern no reason why Jailer Fugate knew, or should have
    known, that simply telling Daniel what she was charged with would have
    elicited such an incriminating response. Therefore, we hold that the statement
    was not an interrogation or its functional equivalent, and the trial court did not
    err in declining to suppress Daniel’s statement.
    II.   CONCLUSION
    Based on the foregoing, we reverse and remand for a new trial consistent
    with this opinion.
    Minton, C.J.; Hughes, Keller, Lambert, Nickell, VanMeter and Wright,
    J.J. sitting. Minton, C.J.; Hughes, Lambert, VanMeter and Wright concur.
    KELLER, J., CONCURRING IN PART AND DISSENTING IN PART:
    Although I agree with much of the majority’s opinion, I concur in result only
    regarding the evidence that Daniel shot her gun in the air during an argument
    with Joy. I respectfully dissent from its holdings regarding the evidence of the
    two-dollar bill and the denial of expert funds. Finally, I believe that the
    prosecutor’s comments during closing argument regarding Daniel’s lack of an
    expert, although not warranting reversal, merit further discussion.
    A. Evidence of the Two dollar Bill
    37
    The majority finds error in the trial court’s admission of evidence that
    Kim used Joy’s two-dollar bill at a convenience store about a week after Joy’s
    death. The majority holds that admission of this evidence was an abuse of
    discretion “without proof of Daniel’s direct misappropriation” of the money. It is
    impossible for this Court to predict what evidence will be admitted and how
    that evidence will be admitted in a new trial on remand. For instance, evidence
    of the two-dollar bill may be relevant to Kim’s credibility or to Daniel’s
    credibility should either choose to testify. As such, I would leave the admission
    of this evidence to the sound discretion of the trial court on remand.
    B. Denial of Expert Funds
    The majority holds that the trial court abused its discretion in denying
    Daniel’s motion for expert funding under Kentucky Revised Statutes (“KRS”)
    Chapter 31. I disagree. The majority cites to the correct test for determining
    when an indigent defendant is entitled to receive funding for expert assistance.
    The trial court must consider “1) whether the request has been pleaded with
    requisite specificity; and 2) whether funding for the particularized assistance is
    ‘reasonably necessary’; 3) while weighing relevant due process considerations.”
    Benjamin v. Commonwealth, 
    266 S.W.3d 775
    , 789 (Ky. 2008).
    The majority further notes that appellate review of a trial court’s denial of
    expert funds is “limited to the reasons actually presented to the trial court.”
    Dillingham v. Commonwealth, 
    995 S.W.2d 377
    , 381 (Ky. 1999) (citing Simmons
    v. Commonwealth, 
    746 S.W.2d 393
    , 395 (Ky. 1988)). Because of this, I feel it is
    38
    critical to review exactly what information the trial judge had in front of him at
    the time he denied Daniel’s requests for expert funds.
    Daniel’s initial motion for expert funding was signed by her counsel on
    June 11, 2018. Notably, it was not filed until June 20, 2018. However, the trial
    court presumably was in possession of it prior to that date because the trial
    court’s order denying Daniel’s requested funds was entered on June 18, 2018.
    On June 22, 2018, Daniel filed a motion to reconsider and the trial court held
    an ex parte hearing on that motion.
    Daniel’s initial motion for expert funding requested funding to retain
    Shelly Rice, an accident reconstructionist, to assist in reviewing reports and
    evidence turned over by the Commonwealth, to conduct additional testing and
    analysis, and to assist in cross-examining and impeaching the
    Commonwealth’s witnesses. The motion contained no other details about
    specific assistance sought, such as reports that needed to be reviewed or
    specific tests that could be completed. Further, this motion was not
    accompanied by a supporting affidavit by Rice which could have provided
    details regarding the anticipated content of her testimony. Although an affidavit
    by an expert is not absolutely necessary to receive expert funding, it can often
    be valuable guidance in a trial court’s determination.
    Based on later conversations between defense counsel and the trial court
    that occurred on the record, it seems likely that the trial court had an off-the-
    record conversation with defense counsel about this motion. The trial court
    then entered an order denying Daniel’s request for expert funds, noting that
    39
    the jury must make the ultimate decision on guilt and that effective cross-
    examination could bring out the evidence the defense sought to be admitted
    through its requested expert.
    Subsequently, Daniel filed a motion to reconsider the trial court’s denial
    of her request for expert funds. In that motion, she made the same general
    assertions of necessity that she made in her first motion, but additionally
    stated that Rice:
    would examine the scene, provide information about what proper
    investigation techniques were used and what proper techniques
    were not used….[and] provide defense counsel the information that
    is needed to conduct a proper cross-examination into what should
    have been done to definitely decide whether a homicide or a suicide
    took place.
    Again, Rice’s affidavit did not accompany that motion.
    The trial court held an ex parte hearing on the same date the motion to
    reconsider was filed. At that hearing, defense counsel explained that the
    medical examiner, the only forensic expert to testify for the Commonwealth,
    was unable to determine whether Joy’s manner of death was homicide or
    suicide. She further expressed her view that the police conducted an
    inadequate investigation. Regarding the use of the requested expert, defense
    counsel stated she hoped an expert would opine that “with the position of the
    body and blood splatter, our theory [of suicide] is plausible and correct.” The
    trial court asked defense counsel a direct question about whether the
    requested expert would attempt to testify that it was a suicide based on the
    scene. Counsel did not directly answer the trial court’s question but
    acknowledged that she had not yet given the expert any evidence and did not
    40
    know what conclusions the expert would reach after reviewing the evidence. At
    the end of the hearing, the trial judge told Daniel’s counsel that he would let
    her know if he “changed his mind,” effectively denying Daniel’s motion to
    reconsider his prior denial of her request for expert funds.
    It was not until August 17, 2016, approximately two months after the
    trial court denied Daniel’s request for funding and her request for it to
    reconsider that decision, and a mere ten days before trial, that Shelly Rice’s
    affidavit was filed in the trial court record. The affidavit was accompanied by a
    proposed order but not by a renewed motion for expert funds or any other
    motion. The affidavit was not addressed on the video record until the morning
    of trial and then only a vague reference was made to “things in the record” that
    would show the value of an expert.
    We have previously held that
    the appropriate test for determining when an indigent defendant is
    entitled to receive funding for expert witnesses under KRS
    31.110(1)(b), will consider 1) whether the request has been pleaded
    with requisite specificity; and 2) whether funding for the
    particularized assistance is “reasonably necessary”; 3) while
    weighing relevant due process considerations.
    
    Benjamin, 266 S.W.3d at 789
    . This Court’s review of a trial court’s denial of
    expert funds, however, is limited to abuse of discretion. McKinney v.
    Commonwealth, 
    60 S.W.3d 499
    , 500 (Ky. 2001). This is a deferential standard
    that only allows for a finding of error if the trial court’s decision is “arbitrary,
    unreasonable, unfair, or unsupported by sound legal principles.” Goodyear Tire
    & Rubber Co. v. Thompson, 
    11 S.W.3d 575
    , 581 (Ky. 2000). Given the
    information before the trial court at the time it denied Daniel’s requests for
    41
    expert funds, I cannot hold that the trial court abused its discretion in denying
    the funds, as Daniel failed to show that her requested expert assistance was
    reasonably necessary.
    I acknowledge that, ideally, indigent defendants should have greater
    access to funding to obtain expert assistance than the Commonwealth’s
    current process provides. However, granting funds to indigent defendants costs
    the citizens of the Commonwealth, and the money used for this funding is a
    finite resource. Trial judges have been placed in the position to act as a
    gatekeeper to those funds. Thus, this Court, over years of reviewing this issue,
    has established a test that meets the defendant’s due process rights without
    depleting the Commonwealth’s finite resources. As previously explained, this
    test requires a showing of reasonable necessity. Under the facts of this case,
    with the reasons presented to him, the trial judge did not abuse his discretion
    in finding the funds were not reasonably necessary and therefore denying
    Daniel’s request for expert funds.
    We need look no further than this Court’s opinion just last year in
    Commonwealth v. Ferguson, 
    581 S.W.3d 1
    (Ky. 2019). Before this Court in
    Ferguson was the issue of whether the trial court erred in denying Ferguson’s
    Rule of Criminal Procedure (“RCr”) 11.42 motion for ineffective assistance of
    counsel. Ferguson argued, among other things, that his trial counsel’s
    performance was deficient because he failed to consult with experts in his
    preparation for trial and failed to call any expert witnesses at trial.
    Id. at 6.
    At
    his RCr 11.42 hearing, Shelly Rice testified on Ferguson’s behalf. She opined
    42
    that, based on her review of the evidence, if she had been able to testify at trial,
    she would have testified that it was more likely than not that the victim had
    shot himself, as opposed to Ferguson having shot him.
    Id. This Court, however,
    found Rice’s theories to be “largely fantastical” and held there was not a
    reasonable likelihood the result at trial would have been any different if
    Ferguson’s trial counsel had received expert assistance.
    Id. at 8. I
    acknowledge that the standards by which we review a trial court’s
    denial of expert funds and a trial court’s denial of an RCr 11.42 motion are
    different. However, even when these differences are taken into account, I
    respectfully assert that an inconsistency exists in these two decisions by this
    Court. In both cases, the sole question the jury had to decide was whether the
    victim died by suicide or homicide. In the Ferguson case, we held that expert
    assistance likely would not have changed the result at trial, but in this case the
    majority has held that the very same expert on that very same issue was
    reasonably necessary for the defense. Obviously, the facts of the two cases are
    not exactly the same and the questions before this Court are not exactly the
    same, but our outcomes should be consistent. I do not believe they are. It is
    inconsistent for the majority of this Court to believe that very similar expert
    assistance would not have changed the result in Ferguson’s trial but was
    reasonably necessary for Daniel’s defense.
    Given the deferential standard of review by which we review a trial
    court’s finding that an expert was not reasonably necessary, I cannot find error
    by the trial court. Daniel had more than enough fodder for effective cross-
    43
    examination of the Commonwealth’s witnesses without the assistance of an
    expert. Although the medical examiner initially ruled Joy’s manner of death to
    be homicide, she testified that after further review she could not rule out
    suicide. This fact alone is ripe for cross-examination. The trial court knew of
    this change of heart at the time it denied Daniel’s request for funding. Daniel
    could have questioned the medical examiner about any additional information
    she would have needed from the scene to make a more definite determination.
    Further, Daniel could, and did, cross-examine the Kentucky State Police
    detectives about all of the things they failed to do in their investigation. The
    Kentucky State Police detectives, Detective Stamper and Detective Browning,
    admitted in their testimony that they did not collect various items from the
    scene including Daniel’s clothing, pillows from the floor, clothing found on the
    bed and on the floor including an item with suspected blood on it, and sheets
    and blankets. Also during cross-examination, the detectives admitted that
    gunshot residue testing was not done on Daniel or Joy and that no blood
    spatter analysis was completed. Finally, although Daniel makes much of
    Detective Browning’s testimony that he did not know what Luminol was,
    Detective Stamper, who testified before Detective Browning, admitted during
    his cross-examination that he knew what Luminol was and that it was not
    used in this case. Daniel did not recall Detective Stamper to the stand to
    explain Luminol to the jury.
    This Court has the benefit of hindsight in reviewing everything that
    occurred during the trial and the effect a trial court’s pretrial ruling had on
    44
    that trial. The trial court does not have that advantage, and in determining
    whether a trial court abused its discretion, we must look at the evidence it had
    in front of it at the time it made its decision. Additionally, we must be mindful
    that Daniel was not required to prove that Joy committed suicide in order to be
    successful at trial; she merely had to create reasonable doubt in the jurors’
    minds that it was she who murdered Joy. Given all of the circumstances in this
    case and the information the trial court had in front of it when it made its
    ruling, I cannot hold the trial court abused its discretion in denying Daniel’s
    request for expert funding, and therefore I dissent from the majority’s holding
    otherwise.
    C. Commonwealth’s closing argument
    Finally, I would like to address the Commonwealth’s comment during
    closing argument about Daniel’s lack of an expert on blood enhancement tests,
    as it is very troubling to me. Daniel argues to this Court that the
    Commonwealth’s remark was a misstatement that prejudiced Daniel, denying
    her right to a fair trial under the United States and Kentucky constitutions.
    The majority mentions this issue within its discussion of whether the trial
    court erred in denying Daniel expert funds but does not address this issue on
    its own. I feel it merits more discussion.
    “Great leeway is allowed to both counsel in a closing argument. It is just
    that—an argument.” Slaughter v. Commonwealth, 
    744 S.W.2d 407
    , 412 (Ky.
    1987). However, “the fundamental issue is whether the statement is reasonably
    supported by the evidence.” Murphy v. Commonwealth, 
    509 S.W.3d 34
    , 54 (Ky.
    45
    2017) (internal citations and quotation marks omitted). In this case, the
    Commonwealth’s comment about Daniel’s lack of an expert on blood
    enhancement tests was improper. Although the request for expert funding was
    mentioned at least once during the trial in front of the prosecutor, most of the
    arguments about this issue were, appropriately and pursuant to statute, ex
    parte. Further, although the Commonwealth may not have completely
    understood what expert funding Daniel had requested, its comment during
    closing argument was still improper. Daniel objected to the comment but did
    not request any relief. Despite this, it would have been better practice for the
    trial court to admonish the jury in some way so that it did not hold the lack of
    an expert against Daniel.
    In general, any allegation of prosecutorial misconduct must be viewed in
    the context of the overall fairness of the trial. Commonwealth v. McGorman, 
    489 S.W.3d 731
    , 742 (Ky. 2016). 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)). In this case,
    especially because Daniel did not request any relief from the trial court, I
    cannot hold that the misstatement by the Commonwealth affected the overall
    fairness of Daniel’s trial to the extent outlined in Soto. As such, I would not
    reverse Daniel’s conviction on this issue; however, I discuss it to give some
    guidance for future trial courts and counsel should a similar situation arise in
    the future.
    46
    In conclusion, although I agree with much of the majority’s opinion, I
    dissent from its holdings regarding the admission of evidence of the shooting in
    the air incident and the two-dollar bill, as well as its holding regarding the
    denial of expert funds. Accordingly, I would affirm the judgment of the
    Breathitt Circuit Court.
    Nickell, J., joins.
    COUNSEL FOR APPELLANT:
    Julia Karol Pearson
    Department of Public Advocacy
    Assistant Public Advocate
    COUNSEL FOR APPELLEE:
    Daniel Jay Cameron
    Attorney General of Kentucky
    Kenneth Wayne Riggs
    Assistant Attorney General
    Jesse Robbins
    Assistant Attorney General
    47