IMPORTANT NOTICE
“NOT TO BE PUBLISHED OPINION”
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED” PURSUANT TO RULE OF APPELLATE PROCEDURE (RAP) 40(D). THIS OPINION SHALL NOT BE CITED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE. UNDER RAP 41, UNPUBLISHED OPINIONS OF KENTUCKY APPELLATE COURTS RENDERED AFTER JANUARY 1, 2003, THAT ARE FINAL UNDER RAP 40(G), MAY BE CITED BY A PARTY FOR CONSIDERATION BY A COURT IF THERE IS NO PUBLISHED OPINION THAT ADEQUATELY ADDRESSES THE POINT OF LAW BEING ARGUED BY A PARTY. IF AN UNPUBLISHED OPINION IS CITED FOR CONSIDERATION BY A COURT THE OPINION SHALL BE SET OUT AS AN UNPUBLISHED OPINION IN THE DOCUMENT IN WHICH THE UNPUBLISHED OPINION IS CITED.
RENDERED: AUGUST 20, 2026 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2025-SC-0180-MR
ANTOINE ROACH APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT V. HONORABLE JESSICA E. GREEN, JUDGE NOS. 23-CR-000898-002 & 24-CR-000755
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT AFFIRMING
Antoine Roach was convicted by a Jefferson County jury on charges of murder, complicity to first-degree robbery, tampering with physical evidence, complicity to tampering with physical evidence, second-degree fleeing or evading police (pedestrian), complicity to first-degree fleeing or evading police (motor vehicle), possession of a handgun by a convicted felon, and being a first- degree persistent felony offender (“PFO I”). He received a total sentence of life imprisonment and appeals to this Court as a matter of right. 1 Having carefully considered the law, record, and briefs, we affirm.
1 KY. CONST. § 110(2)(b).
FACTS AND PROCEDURAL HISTORY On the night of April 22, 2023, Roach drove his girlfriend, Melissa Martin, and Marcus Kyle Reid to Algonquin Park in Louisville, Kentucky, in a white Lexus SUV which purportedly belonged to Reid. At the park, Roach and Reid got out of the car, and Roach shot Reid six or seven times before the gun jammed. Roach and Martin left the area in the white Lexus and drove around for a while. Approximately 30 minutes later, they returned to the park, whereupon Roach fired two more bullets into Reid’s head to “finish him off.”
The next morning around 8 a.m., a passerby discovered Reid’s body and called 911. Louisville Metro Police Department (LMPD) officers arrived within 10 minutes and contacted the homicide unit. Police recovered six shell casings from the area around Reid’s body, along with a pawn ticket that was used to identify him. The pawn ticket also led police to Pamela Gibson, an acquaintance of Reid’s, who informed the detectives that Reid had taken her Lexus and jewelry without her permission on the previous day. While the detectives were speaking with Gibson, they had not yet informed her that Reid was deceased. Gibson sent a text message to Reid in their presence and received a response from his phone even though his body had already been discovered.
During their investigation, the police obtained Real Time Crime Center (“RTCC”) video footage from the park. The footage showed a white Lexus pulling into the park at approximately 9:54 p.m. on the evening of April 22, 2023. The vehicle turned around and stopped at the end of the street for
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several minutes. Several muzzle flashes were captured on video a few minutes later. The video captured the white Lexus leaving the park at 9:58 p.m. At 10:27 p.m., the RTCC video showed a person entering the park on foot wearing a toboggan, dark top, and light pants. There was another muzzle flash, and the individual could be seen leaving on foot at approximately 10:30 p.m.
The police also collected evidence from ShotSpotter equipment that had been installed throughout various areas in Louisville. ShotSpotter consists of microphones that capture the sound of gunshots and alerts the police to the general vicinity of the sound. On the date in question, the ShotSpotter captured six gunshots at 9:58 p.m., the same time the RTCC captured the muzzle flashes. The ShotSpotter also captured two gunshot sounds approximately 30 minutes later, the same time the RTCC video showed an individual leaving the park on foot.
On April 23rd, police located the white Lexus using Flock cameras and automated license plate reading devices, which are installed throughout the city. At approximately 5:12 p.m., the Lexus was captured on camera, and the detectives attempted to effect a traffic stop. A high-speed chase ensued after which two individuals fled on foot. The LMPD air unit was tracking and recording the pursuit of the vehicle.
Roach got out of the driver’s side of the vehicle and ran one direction while Martin fled from the passenger side in the other. The pilot from the helicopter relayed real-time information as to the paths of Roach and Martin. Both were apprehended minutes later. Martin was captured with a .380
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Jimenez Arms firearm in her possession. Roach had the keys to the Lexus and Reid’s food stamp card in his wallet.
Shortly after being apprehended, Martin made a statement to Detective Steven Snider implicating Roach in the robbery and murder of Reid. After describing the circumstances leading to Reid’s death, Martin told police that Roach’s shoes were in the garbage can at their house and that his clothes were in the back of the Lexus. Roach’s sweatshirt was eventually recovered from the Lexus and DNA testing revealed the presence of Reid’s blood. Martin also told detectives that Roach had burned the gloves he was wearing during the murder.
Kentucky State Police Firearm and Toolmark Examiner Steven Hughes concluded that the shell casings recovered from the scene matched the .380 firearm police seized from Martin. In Hughes’s opinion, the firearm had a broken firing pin that left highly unique markings on the casings, which corresponded to markings on the casings from the murder scene. The firearm was also sent for DNA testing, which provided “very strong support for the proposition” that Roach was a contributor to the sample taken from the grip.
Roach was indicted for murder, complicity to first-degree robbery, complicity to possession of a handgun by a convicted felon, complicity to tampering with physical evidence, tampering with physical evidence, complicity to first-degree fleeing or evading police (motor vehicle), and first-degree fleeing or evading police (pedestrian). Roach was later indicted separately for PFO I.
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Roach represented himself at trial with the assistance of whisper counsel 2 and testified in his own defense. He denied any involvement with Reid’s murder. After eight days of trial, the jury found Roach guilty of the charged offenses except for the charge for first-degree fleeing or evading police (pedestrian). The jury instead found Roach guilty of the lesser-included offense of second-degree fleeing or evading. The trial court imposed a total sentence of life imprisonment in accordance with the recommendation of the jury. This appeal followed.
LAW AND ANALYSIS
First, Roach argues the trial court erred by failing to grant a mistrial, sua sponte, after Martin experienced a seizure on the witness stand during cross- examination. He concedes this alleged error is unpreserved and requests palpable error review.
RCr 3 10.26 generally authorizes an appellate court to review an unpreserved error as follows:
A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.
2 Whisper counsel refers to a form of hybrid representation whereby the
defendant maintains the primary responsibility for presenting his case but retains counsel as necessary for advice and the handling of certain specifically delineated tasks. See Wake v. Barker, 514 S.W.2d 692, 696 (Ky. 1974) (“[A]n accused may make a limited waiver of counsel, specifying the extent of services he desires, and he then is entitled to counsel whose duty will be confined to rendering the specified kind of services (within, of course, the normal scope of counsel services).”).
3 Kentucky Rules of Criminal Procedure.
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A palpable error is “easily perceptible, plain, obvious, and readily noticeable.” Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006). To demonstrate manifest injustice, a party must show the “probability of a different result or error so fundamental as to threaten a defendant's entitlement to due process of law.” Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006). In other words, a palpable error occurs where “the defect in the proceeding was shocking or jurisprudentially intolerable.” Id. at 4.
“It is well established that the decision to grant a mistrial is within the trial court’s discretion, and such a ruling will not be disturbed absent a showing of an abuse of that discretion.” Woodard v. Commonwealth, 147 S.W.3d 63, 68 (Ky. 2004) (citing Bray v. Commonwealth, 68 S.W.3d 375, 383 (Ky. 2002)). “The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Additionally, “a mistrial is an extreme remedy and should be resorted to only when there is a fundamental defect in the proceedings, and there is a ‘manifest necessity for such an action.’” Id. (quoting Bray, 68 S.W.3d at 383). The cause of the need for mistrial “must be of such character and magnitude that a litigant will be denied a fair and impartial trial and the prejudicial effect can be removed in no other way.” Id. (quoting Gould v. Charlton Co., Inc., 929 S.W.2d 734, 738 (Ky. 1996)).
Our predecessor Court has long recognized the “frequent occurrence in homicide cases [where] the next of kin or other close relatives, under the stress
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of testifying, or when confronted with personal belongings of the deceased, become emotionally upset, cry, and lose their composure.” Jackson v. Commonwealth, 275 S.W.2d 788, 789 (Ky. 1955). Because “[t]hese are matters that cannot be anticipated and cannot be prevented by denying such persons the right to be present in the courtroom[,]” it is the duty of the trial court, upon a proper request, “to admonish the jury concerning such disturbance.” Id. The same rule pertains to medical incidents in the courtroom. See United States v. Bailey, 675 F.2d 1292, 1297 (D.C. Cir. 1982) (noting the trial court is in the best position to determine the prejudicial effect, if any, resulting from a witness’s seizure during cross-examination). Further, when a witness’s conduct does not rise to the level of impropriety, it is within the discretion of the trial court “to allow the proceedings to continue.” Miller v. Commonwealth, 925 S.W.2d 449, 453 (Ky. 1996), overruled on other grounds by Garrett v. Commonwealth, 48 S.W.3d 6, 14 (Ky. 2001). Ultimately, “[t]he trial judge [is] in the best position to determine whether any remedial action [is] necessary to preserve decorum and ensure a fair trial.” Id. (quoting Wilson v. Commonwealth, 836 S.W.2d 872, 890 (Ky. 1992)).
Here, Martin testified on behalf of the Commonwealth and began having a seizure while Roach played a video recording of her testimony from a prior proceeding during his cross-examination of her. The trial court called for medical attention and excused the jurors. After the medical emergency was resolved on the scene, the trial court released Martin for the day. Before the jurors were excused for the day, the trial court admonished them that Martin’s
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medical emergency was not something they should consider during deliberations and that medical emergencies in the courtroom “do not give an inference of guilt or of anything.” Martin continued to testify the next day without further incident. Notably, Roach did not request an additional admonition, mistrial, or any further relief. On these facts, we discern no abuse of discretion as there was no manifest necessity for a mistrial.
Roach further argues the trial court’s admonition was inadequate. We disagree.
Kentucky law presumes a jury will “follow an admonition to disregard evidence and the admonition thus cures any error.” Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003) (citing Mills v. Commonwealth, 996 S.W.2d 473, 485 (Ky. 1999)). However, this presumption may be overcome in two situations: “(1) when there is an overwhelming probability that the jury will be unable to follow the court’s admonition and there is a strong likelihood that the effect of the inadmissible evidence would be devastating to the defendant; or (2) when the question was asked without a factual basis and was ‘inflammatory’ or ‘highly prejudicial.’” Id. (citations omitted).
We cannot conclude that Martin’s seizure produced any “devastating effect” on Roach’s defense. Roach’s claims that Martin’s seizure engendered sympathy from the jury is purely speculative. Martin was not the victim or a family member of the victim. Instead, she was an admitted participant in Reid’s murder, and the jury had been informed she received a plea bargain in
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exchange for her cooperation. 4 Moreover, we discern no basis to conclude that Roach was deprived of the right to fully cross-examine Martin. Indeed, Roach cross-examined Martin for approximately one hour before her seizure occurred, and his cross-examination thereafter lasted for the entirety of the fifth day of trial.
Roach next argues the trial court erred by allowing the firearm and toolmark examiner to testify without limitations relative to whether the casings recovered at the crime scene matched the firearm recovered by police. We disagree.
Kentucky law has permitted the admission of ballistics evidence since at least 1948. Garrett v. Commonwealth, 534 S.W.3d 217, 221 (Ky. 2017) (citing Morris v. Commonwealth, 208 S.W.2d 58 (Ky. 1948)). In Garrett, this Court specifically concluded a firearm toolmark examiner could properly opine that bullets “were fired from the same firearm” as long as the expert testimony did not equate to “‘absolute certainty’ so as to require exclusion.” Id. at 222-23 (quoting United States v. Otero, 849 F.Supp.2d 425 (D.N.J. 2012), (aff’d), 557 Fed. App’x 146 (3d Cir. 2014)). Because such evidence satisfies the requirements of Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), “[t]he proper avenue . . . to address . . . concerns about the methodology and reliability of [the firearm toolmark examiner’s] testimony [is] through cross-
4 Specifically, the jury was informed Martin had been charged with facilitation
to murder, facilitation to robbery, fleeing, and other related charges stemming from Reid’s death and that she had pleaded guilty in exchange for a recommended sentence of ten years’ imprisonment.
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examination, as well as through the testimony of [the defendant’s] own expert.” Garrett, 534 S.W.3d at 223.
While we acknowledge the legal landscape relative to the admissibility of ballistics evidence has been evolving nationwide in light of a 2016 report generated by the United States President’s Council of Advisors on Science and Technology, 5 we decline to reconsider our decision in Garrett at this juncture because Roach failed to request a Daubert hearing. See Tharp v. Commonwealth, 40 S.W.3d 356, 368 (Ky. 2000). Our review of the record indicates that Roach requested a Daubert hearing solely on the separate issue of DNA testing, which is insufficient to preserve the alleged error for review. See Mills v. Commonwealth, 718 S.W.3d 577, 584 (Ky. 2025) (holding “[o]bjections that are specific as to the alleged problem and requesting a specific remedy are necessary” to preserve an issue for appellate review). Roach’s claim that we should treat this alleged error as preserved because he subjectively intended to request a Daubert hearing on ballistics as opposed to DNA testing is without merit. Id.
Roach further argues the firearm examiner’s testimony and the Commonwealth’s references to the ballistics evidence during closing argument exceeded the limits established by Garrett. We disagree.
5 Executive Office of the President: President’s Council of Advisors on Science and
Technology, Report to the President: Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods, 104-14 (Sept. 2016), https://obamawhitehouse.archives.gov/sites/default/files/microsites/ostp/PCAST/p cast_fore nsic_science_report_final.pdf (section relating to the validity of firearm toolmark identification).
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The firearm examiner’s testimony was not expressed with the type of “absolute certainty” prohibited by Garrett. The record reflects that Hughes opined that the six .380 cartridge casings were fired from the .380 firearm recovered by the police. He explained the methods and procedures he employed to arrive at that conclusion. On cross-examination, Roach asked Hughes whether he was “100% correct or 100% sure” that the casings were a match to the firearm. Hughes reiterated that it was his opinion that the casings were fired from the .380 firearm. Similarly, the jury directly asked Hughes the following question, “when you say ‘it is my opinion’ regarding your findings, is it possible to claim 100% certainty?” Hughes replied:
No, it is not. This is not to the exclusion of all other firearms within the world. I apply the science of firearms and toolmark identification and make an inductive inference that allows me to form the opinion. It is my opinion that the same tool that made the markings on my test fires, I see the same pattern of markings on these fired casings, so I make that inductive inference to form the opinion that these were fired in that firearm, using that tool.
We perceive no error in the admission of the firearm examiner’s testimony. Regarding the Commonwealth’s references to Hughes’s testimony during closing argument, we reiterate that “argument is not evidence.” Slaughter v. Commonwealth, 744 S.W.2d 407, 412 (Ky. 1987). Thus, claims of improper argument amount to an assertion of prosecutorial misconduct. Id. Roach did not object to the Commonwealth’s closing argument, and he has not asserted any claims of prosecutorial misconduct on appeal. We decline to address any such alleged errors sua sponte.
Third, Roach argues the Commonwealth’s failure to provide accessible
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cellphone extraction information in discovery deprived him of a fair trial and the right to present a defense. We disagree.
“[T]he State must, as a matter of equal protection, provide indigent prisoners with the basic tools of an adequate defense or appeal, when those tools are available for a price to other prisoners.” Britt v. North Carolina, 404 U.S. 226, 227 (1971). However, “[t]here is no general constitutional right to discovery in a criminal case.” Porter v. Commonwealth, 394 S.W.3d 382, 387 (Ky. 2011) (citing Weatherford v. Bursey, 429 U.S. 545 (1977)). In Kentucky, RCr 7.24 defines the scope of discovery in criminal proceedings. Id. We have explained, “[t]he overarching purpose of our criminal discovery rules is to prevent “‘[a] cat and mouse game whereby the Commonwealth is permitted to withhold important information requested by the accused.’” Stieritz v. Commonwealth, 671 S.W.3d 353, 368 (Ky. 2023) (quoting James v. Commonwealth, 482 S.W.2d 92, 94 (Ky. 1972)). Alleged discovery violations are reviewed for abuse of discretion. Id. at 368.
Pertinent to the present appeal, RCr 7.24(2) states:
On motion of a defendant the court may order the attorney for the Commonwealth to permit the defendant to inspect and copy or photograph books, papers, documents, data and data compilations or tangible objects, or copies or portions thereof, that are in the possession, custody or control of the Commonwealth, upon a showing that the items sought may be material to the preparation of the defense and that the request is reasonable. This provision authorizes pretrial discovery and inspection of official police reports, but not of memoranda, or other documents made by police officers and agents of the Commonwealth in connection with the investigation or prosecution of the case, or of statements made to them by witnesses or by prospective witnesses (other than the defendant).
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(Emphasis added). Unlike CR 6 34.01, which governs civil discovery and specifically mandates the production of responsive documents in a “reasonably usable form[,]” RCr 7.24(2) does not contain any comparably explicit directives relative to the manner and method of criminal discovery.
We have not discovered, and the parties have not cited, any binding Kentucky authority regarding the Commonwealth’s discovery obligations under RCr 7.24(2) in this context. However, when interpreting our procedural rules, we may refer to the interpretations of analogous federal rules for guidance. Hensley v. Haynes Trucking, LLC, 549 S.W.3d 430, 436 n.4 (Ky. 2018).
The Sixth Circuit Court of Appeals has clearly held that Rule 16 of the Federal Rules of Criminal Procedure does not require the government to produce discovery in a particular manner or format preferred by a criminal defendant. United States v. Warshak, 631 F.3d 266, 296 (6th Cir. 2010); United States v. Meredith, 2015 WL 5570033, at *2 (W.D. Ky. Sept. 22, 2015) (“[t]he Government is under no obligation to provide discovery that is searchable by a particular application or in a specific fashion favored by a party.”); see also United States v. Bailey, 2022 WL 1261766, at *2, 5 (N.D. Ohio Apr. 28, 2022) (“Criminal Rule 16 does not require the Government to enable Defendants to conduct sophisticated searches of the electronic discovery.”). The reasoning of Warshak is equally applicable to the present appeal.
6 Kentucky Rules of Civil Procedure.
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Here, in April 2024, well in advance of trial, the Commonwealth provided Roach with a flash drive containing the extractions of the three cellphones seized by police and the application software needed to open the files. After Roach complained in May 2024 that he could not open the files on the computers provided by the jail, the trial court offered to inquire into other arrangements with the jail or to let Roach use one of the court’s computers to view the discovery. In June 2024, Roach still could not access the discovery, and his second whisper counsel offered to assist Roach by sitting next to him with a computer that had the proper software to open the cell phone extractions.
In October 2024, Roach moved to relieve counsel. Counsel responded that he and Roach did not see “eye to eye” on the cellphone discovery issue. Roach desired to review and discuss the discovery in court with whisper counsel and the Commonwealth in order to prove his innocence. Counsel stated he did not believe such a course of action was in Roach’s best interest and moved to withdraw.
The trial court initially ordered counsel to remain as standby counsel in the event Roach could not represent himself at trial. However, after Roach accused counsel of incompetence in open court, counsel again moved to withdraw. The trial court stated it would inquire into whether the Public Defender’s Office would appoint a third attorney for Roach. Toward the end of the hearing, the trial court returned to the cellphone discovery issue.
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Counsel confirmed that the Commonwealth had provided him with the cellphone discovery and that he had provided the discovery to Roach. Counsel advised the court that Roach could not view the discovery because of the limited computer facilities at the jail. Counsel stated he had been in the process of obtaining an independent examination of the cellphones and was prepared to request fees for an expert witness but was unsure how to proceed given the breakdown in the attorney-client relationship. The trial court declined to order the payment of public funds in anticipation of the appointment of alternate counsel.
In November 2024, Roach appeared at a pre-trial hearing with his third appointed whisper counsel and again claimed he could not access the cellphone discovery because the flash drive the Commonwealth had sent was empty. Roach stated he did not need any special software to view the flash drive at the jail. The trial court noted that the Commonwealth had an obligation to provide discovery and if Roach needed another copy, it would like it to be sent “sooner rather than later.” The court also stated that it would make a note to check on the issue about the cell-phone extraction.
On February 24, 2025, the morning of the first day of trial, Roach stated he had been unable to view the cellphone extractions at the jail because the files were too large. For the first time, Roach identified the particular pictures and texts he sought to obtain and which he claimed would demonstrate he did not purchase the .380 firearm, the gun did not belong to him, and that Martin had planned to kill “someone.” The Commonwealth responded that it had
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provided multiple copies of the cell-phone extractions and had offered to help Roach open the extractions.
The Commonwealth offered to allow Roach to inspect the phones and provide his expert with the raw data for review. Whisper counsel responded that his expert had been unable to review the discovery previously provided, so the expert was not present in court that day. The Commonwealth opened one of the cellphone extractions on its computer and said that it was the exact copy that had been provided to Roach. The Commonwealth also noted that it had invited whisper counsel to review the cellphone extractions and go over them together. The trial court ruled that Roach and whisper counsel could inspect the phones in the presence of a detective.
On the morning of the second day of trial, February 25, 2025, the Commonwealth presented the cellphones for Roach and whisper counsel to inspect. Roach stated he could not access his screenshots and pictures because he was not connected to the internet. He also noted certain photographs and videos were blank and asked the detective if he knew the reason why. The detective responded, “it is not my phone.” 7 Roach asked permission to connect to the court’s internet so that he could access his email account where the screenshots had been saved. The trial court denied that
7 Roach notes the detective was later overheard on a hot microphone explaining
the reason why he could not access the photographs and videos was because the phone was in airplane mode and complains the detective should have done more to assist him. We decline to impose any obligation on the detective in this regard as the detective’s role during the inspection was simply to ensure the integrity of the evidence. Moreover, Roach had the complete assistance of whisper counsel at that time.
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request for security reasons and observed Roach could have pursued other options to access his email.
The trial court suggested that Roach give his email account and password to whisper counsel. Roach explained he did not know his password and that it was saved to his phone. The trial court explained such difficulties were part of the risk that an individual assumes when choosing to represent himself, especially when the court had advised Roach that it did not believe such a course of action was in his best interest. The trial court stated it could not allow him to connect to the internet and send information about resetting passwords. Roach explained again that he did not want to reset his password but simply obtain the password that was on the phone. The trial court denied his request.
At the end of the third day of trial, February 26, 2025, whisper counsel informed the court that he intended to locate the information that Roach wanted from the cellphone extraction. Roach confirmed that he wanted text messages and screenshots of photos from March 2023 through April 2023. The Commonwealth sought to clarify which specific items were at issue. Roach responded that he was looking for two screenshots that showed that Martin purchased two guns, including the murder weapon. Roach also said that he was looking for screenshots of text messages in which Martin bragged about having guns and discussed killing someone. The Commonwealth responded that Roach had brought this issue up before and that Martin’s phone did not contain photos of her with guns. The trial court requested the
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Commonwealth to review the discovery one more time with its expert and advised Roach that the Commonwealth could not produce items which do not exist.
On the morning of February 27, 2025, the Commonwealth informed the trial court that it had located a cached photograph on Martin’s phone depicting a black and silver gun and had emailed the photograph to whisper counsel. The Commonwealth also moved to exclude the photograph from evidence because it did not depict the murder weapon. The trial court provided Roach with an opportunity to review the photograph before responding to the Commonwealth’s motion. After Roach stated he had no response to the Commonwealth’s motion, the trial court excluded the photograph from evidence.
We do not perceive the occurrence of a discovery violation in the present matter. The Commonwealth provided Roach with the cellphone discovery and the means to access the information on multiple occasions. The Commonwealth and the trial court also provided Roach and whisper counsel with additional opportunities to physically inspect, view, and document information on the cellphones. As a result, any lack of trial preparation or surprise on Roach’s part is solely attributable to Roach’s knowing, intelligent, and voluntary decision to represent himself as an incarcerated defendant, and not to any failure of the Commonwealth to disclose available information. We cannot conclude Roach was deprived of a reasonable opportunity to review the discovery provided. Thus, the trial court did not abuse its discretion.
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CONCLUSION
For the foregoing reasons, the judgment of the Jefferson Circuit Court is hereby affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Molly Mattingly Kathleen K. Schmidt Assistant Public Advocates
COUNSEL FOR APPELLEE:
Russell M. Coleman Attorney General of Kentucky
Courtney J. Hightower Assistant Attorney General