Daquan N. Lampkins v. Commonwealth of Kentucky

• Court: Kentucky Supreme Court
• Decided: June 13, 2024
• Docket: 2023 SC 0305
• Status: Unknown

Opinion

RENDERED: JUNE 13, 2024 TO BE PUBLISHED

Supreme Court of Kentucky 2023-SC-0305-MR

DAQUAN N. LAMPKINS APPELLANT

ON APPEAL FROM JEFFERSON CIRCUIT COURT V. HONORABLE JULIE KAELIN, JUDGE NO. 18-CR-002490

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE NICKELL

AFFIRMING

Daquan N. Lampkins was convicted by a Jefferson County jury of two

counts of murder, possession of a handgun by a convicted felon, and violation

of protective order. He received a sentence of life imprisonment without the

possibility of parole and appeals to this Court as a matter of right. 1 Lampkins

argues the trial court erred by: (1) excluding the victims’ toxicology reports; (2)

failing to instruct the jury to accept a judicially noticed fact; (3) failing to strike

two jurors for cause; (4) improperly admitting evidence of prior bad acts; and

(5) permitting the Commonwealth to dramatize one of the murders. Discerning

no reversible error, we affirm.

1 KY. CONST. § 110(2)(b). FACTS AND PROCEDURAL HISTORY

Lampkins was involved in a tumultuous “on-again, off-again”

relationship with Delivia Carron. They met sometime in late 2014 or early

2015. Lampkins and Carron briefly lived together in 2015, but she moved out

and eventually got her own apartment in a complex located in the South End of

Louisville, Kentucky.

On May 29, 2016, Carron called 911 to report that Lampkins had

assaulted her. Lampkins was arrested and charged with fourth-degree assault.

Carron subsequently reconciled with Lampkins, but a pattern of abuse

continued.

On February 8, 2017, Lampkins and Carron began to argue while

Lampkins was driving. Carron was sitting in the front passenger seat. Her

friend, Tahaza Shaw, was sitting in the back seat with Carron’s infant son. As

the argument escalated, Lampkins began to punch Carron repeatedly in the

face while the car was still in motion. He stopped the car in the middle of the

road and continued beating Carron who began to bleed. Realizing she could

not help Carron, Shaw took the child and exited the vehicle. Lampkins

proceeded to drag Carron out of the car by her hair. He kept hitting Carron in

the street. After Lampkins completed the assault, he took her cellphone and

keys and drove away leaving the three of them stranded on the road.

Following this incident, Carron did not feel safe to return home because

Lampkins had taken her keys. She went to stay with a friend in Indiana.

While Carron was in Indiana, her close friend and neighbor, Shanisha Jackson,

2 arranged for the locks to be changed at her apartment. Eventually, Carron

returned home and began dating a man named Ricky Jones around this same

time.

On April 9, 2017, Carron sought and obtained an emergency protective

order (EPO) against Lampkins. The EPO was served on him the same day.

Lampkins continued to maintain contact with Carron in violation of the EPO.

The next day, Lampkins communicated with Jones on social media purportedly

seeking advice on the situation with Carron.

On April 12, 2017, Lampkins brought Carron gifts to celebrate her

twentieth birthday and they went to the Louisville Waterfront Park along with

Carron’s son and Jackson. Jackson testified she was angry at Carron for

spending time with Lampkins after the issuance of the EPO and accompanied

them as a chaperone. After the outing, Lampkins spent the night at Carron’s

apartment.

Lampkins left Carron’s residence the next morning. At some point,

Lampkins called and asked Carron if he could see her again that evening. She

refused and instructed him not to return to her apartment because she was

expecting a visit from Jones.

In response, Lampkins redoubled his efforts to contact Carron. He called

her relentlessly. 2 At 9:21 p.m. on April 13, 2017, she told Lampkins to stop

2 Between April 12 and 14, 2017, Lampkins called Carron 46 times with the last

call occurring at 12:52 a.m. Because Carron had blocked his number, Lampkins often called using private numbers. He did not make any additional calls to Carron after the murders took place.

3 calling her. After his calls remained unanswered, Lampkins went to Carron’s

When Lampkins reached Carron’s apartment, Jones opened the front

door. Lampkins fired two shots at Jones from close range. One shot grazed

Jones’s thigh and the other struck him in the back, piercing his left lung and

spleen. Carron fled out the backdoor toward Jackson’s apartment where she

had often sought refuge from Lampkins’s abuse in the past. Lampkins caught

up with Carron as she reached the stairs to the landing outside Jackson’s

apartment. Lampkins shot her thirteen times, with seven of those striking her

in the back. As the gunshots rang out, Carron pounded on Jackson’s door

screaming for help. Upon hearing the gunfire and screaming, Jackson called

911, but she did not see anyone outside and did not open her door until the

police arrived.

Police promptly responded and immediately discovered Carron’s

wounded body. Noticing the police presence, Jackson came outside and

became distraught when she saw Carron lying at her door. She cried out that

“[Carron’s] boyfriend did this.”

Carron was pronounced dead at the scene by EMS personnel. Jackson

informed the police officers that Carron lived nearby with her infant child.

Officers hastened to Carron’s apartment where they found Jones who was

pronounced dead at the scene. Carron’s child was recovered unharmed from

the bedroom.

4 Police collected evidence at the scene and canvassed the apartment

complex, but little direct evidence tied Lampkins to the murders. The murder

weapon was never recovered and there were no eyewitnesses. A DNA sample

matching “John Smith” 3, an alleged local drug dealer, was eventually obtained

from a Swisher Sweets cigar wrapper recovered from the parking lot behind

Carron’s apartment on the night of the murders. However, the police did not

make any connection between Smith and Carron, and he was not considered a

suspect.

The investigation centered on Lampkins who was interviewed twice by

police. Lampkins denied committing the murders and claimed he was with

various family members at the time of the crimes. However, police could not

verify Lampkins’s purported alibi.

During one of the interviews, Lampkins recounted that Adriana

Goodman told him someone named Antwan murdered Carron and Jones.

Goodman was acquainted with Carron through social media and later admitted

concocting this story as a ruse to induce Lampkins to confess. Lampkins did

not confess, but on May 12, 2017, he sent the following message to Carron’s

mother:

Ok so out no wur [where] this girl I had been trying to talk to hmu [hit me up] out of no wur saying she knows what happened to livv [Carron]. I said swear on it. She said I’m not lying! She said the dude named Antwan had beef with Ricky and been trying to Rob him so he followed them back to her house. The dude Antwan knocked on the door and ricky answered I’m guessing and he shot

3 Because the record does not contain verification the named individual was, in

fact, a drug dealer, we refer to him throughout by a pseudonym.

5 him and some how [sic] livv got to get out the house but he chased her and shot her. The girl who told me her brother use [sic] to go with livv. So its [sic] funny to me. And then her brother started hmu talking crazy trying to say I did it.

The Commonwealth argued at trial that Lampkins’s message contained details

only the killer would know. Lead investigator, Detective Yolanda Baker,

testified she did not provide any details of the murders to Lampkins, the media,

or any other person at any time. Goodman also testified she did not know any

details of the crime beyond those reported in the media.

Additional evidence pointed to Lampkins’s involvement in the murders.

Cell-phone data showed Lampkins traveling from the area near his home to the

area near Carron’s apartment just prior to the murders. Surveillance video

also captured a silver car matching the one owned by Lampkins coming to the

vicinity of the apartment complex prior to the murders and leaving the area

just as police were responding to the 911 call.

Lampkins was indicted on two counts of murder, first-degree burglary,

possession of a handgun by a convicted felon, violation of a protective order,

and tampering with physical evidence. The tampering with physical evidence

charge was dismissed prior to trial.

At trial, Lampkins continued to deny his guilt and presented an alleged

alternative perpetrator defense (“aaltperp”) defense. Specifically, he claimed

Smith could have possibly killed Carron and Jones. Lampkins further

attempted to cast doubt on the integrity and thoroughness of the police

investigation.

6 After the Commonwealth concluded its case-in-chief, the trial court

granted a directed verdict on the first-degree burglary charge. The jury

convicted Lampkins on the remaining charges and recommended a sentence of

life imprisonment without the possibility of parole. The trial court sentenced

Lampkins in accordance with the jury’s recommendation. This appeal

followed.

ANALYSIS

A. Victims’ Toxicology Reports were Properly Excluded

Lampkins first argues the trial court erred by excluding evidence that

both victims’ blood contained the presence of marijuana at the time of their

deaths. He further contends the trial court should have revisited its pre-trial

ruling, sua sponte, when a witness’s trial testimony differed from her previous

out-of-court statements. We disagree.

The autopsies of Carron and Jones revealed the presence of marijuana in

their systems. Specifically, Carron’s blood contained 6.3 ng/ml of

Tetrahydrocannabinol (THC) 4 and 70.8 ng/ml of TH-COOH 5, and Jones’s blood

contained 7.1 ng/ml of THC and 9.7 ng/ml of TH-COOH. The Commonwealth

filed a motion in limine to exclude this evidence, which the trial court granted

as irrelevant and potentially confusing to the jury.

4 Tetrahydrocannabinol, commonly abbreviated as THC, is defined as “[t]he

psychoactive isomers present in Cannabis, isolated from marijuana. Stedmans Medical Dictionary 910420 (2014). 5 TH-COOH refers to “the major marijuana metabolite, delta-9-

tetrahydrocannabinol-9-carboxylic acid[.]” David Evans, 1 Drug Testing Law Tech. & Prac. § 4:144 (2023).

7 A criminal defendant’s right to present a complete defense “includes both

the right to confront witnesses against him with evidence reasonably suggestive

of bias as well as the right to present evidence reasonably suggestive that

someone else committed the charged crime.” Malone v. Commonwealth, 364

S.W.3d 121, 127 (Ky. 2012) (internal citations omitted). However, this right

does not permit a defendant “to present unsupported theories in the guise of

cross-examination and invite the jury to speculate as to some cause other than

one supported by the evidence.” Id. (quoting Davenport v. Commonwealth, 177

S.W.3d 763, 772 (Ky. 2005)). This is an issue of basic relevance under KRE 6

401 which defines “relevant evidence” as evidence “having any tendency to

make the existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without the

evidence.”

In Malone, we specifically held “[t]he mere fact that a victim had . . .

alcohol in his blood, or the fact that a witness drank, used drugs, and knew

other people who did, does not, without more, permit a reasonable inference

either that the crime was drug or alcohol related or that the witness was lying

or was involved in the crime.” 364 S.W.3d at 127. We review a trial court’s

ruling to admit or exclude evidence for abuse of discretion. Commonwealth v.

Melton, 670 S.W.3d 861, 866 (Ky. 2023). An abuse of discretion occurs when

“the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported

6 Kentucky Rules of Evidence.

8 by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945

(Ky. 1999).

We cannot conclude the trial court abused its discretion by excluding the

toxicology evidence upon an application of the facts presented at the time of its

ruling. The trial court noted the absence of any evidence to establish the

timeframe in which the drugs were ingested. Additionally, there was no

evidence that Smith sold the victims the drugs within any specific period of

time. Lampkins further failed to produce evidence of any disagreement or

hostility between Smith and the victims. At most, the evidence showed that

Smith was generally known to have sold drugs to residents of the apartment

complex. Under Malone, these facts simply do not establish a relevant

connection between the victims’ use of marijuana and the circumstances of

their deaths. 364 S.W.3d at 127.

Lampkins further argues, however, that the trial court should have

revisited its pre-trial ruling when Jackson testified at trial that Carron knew

Smith and had previously purchased marijuana from him. This issue was not

preserved and Lampkins requests palpable error review under RCr 7 10.26,

which states:

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.

7 Kentucky Rules of Criminal Procedure.

9 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) (quoting Burns v. Level, 957 S.W.2d 218, 222 (Ky. 1997)). In other

words, a palpable error occurs where “the defect in the proceeding was

shocking or jurisprudentially intolerable.” Id. at 4.

Undoubtedly, Jackson’s trial testimony was a surprise to both parties.

Toward the conclusion of direct examination, the Commonwealth asked

Jackson if she knew Smith. Jackson replied she did not. The Commonwealth

then inquired whether Jackson remembered stating that Smith looked familiar

after being shown a photo during a meeting the week before trial. Jackson

testified Smith looked familiar, but that she did not know him. She further

explained, “I think I seen him with [Carron] once.”

At this point, Lampkins approached the bench and stated he was unsure

of what Jackson had said. The Commonwealth repeated Jackson’s testimony

and clarified that it was inconsistent with her prior out-of-court statements.

The trial court then asked Jackson to repeat her answer and speak up.

Jackson stated Smith “just looked familiar. He looked like somebody I had

seen before.” The Commonwealth continued its questioning:

Com.: Now, have you seen him just out and about, have you seen him at the apartment complex, what was it you remember that you told me when we met in my office?

10 Jackson: That he had been around. Like I have seen him around the apartment with her [Carron] before.

Com.: So, you are saying that you had seen him with [Carron]?

Jackson: Yes.

Com.: Are you guessing or are you sure? I just want to make sure.

Jackson: Nah, I said yes.

Com.: Okay, well that’s not what you told me in my office. Do you remember what we talked about?

Jackson: Yeah, I told you that he looked familiar, like somebody that [trails off].

Com.: Sold weed maybe to people in the apartment complex?

Before Jackson could answer, the trial court asked the parties to approach the

bench and informed the Commonwealth it was not proper to question the

witness in that manner. The Commonwealth resumed its questioning and

Jackson eventually testified, “I knew [Smith] sold weed to [Carron], that was it,

that’s why I said he looked familiar.”

The parties again approached the bench where Lampkins claimed the

Commonwealth had withheld exculpatory evidence. The Commonwealth

responded that Jackson’s testimony contradicted her previous statements. It

was then agreed the Commonwealth would be permitted to conclude its

questioning of Jackson and any additional motions would be entertained by the

trial court on the following day.

Subsequently, the trial court granted Lampkins’s request to conduct an

evidentiary hearing outside the presence of the jury for the purpose of

11 determining the substance of Jackson’s prior statements to the

Commonwealth. At the hearing, Jackson affirmed she had previously told the

Commonwealth that Smith sold marijuana to Carron.

After the Commonwealth declined to cross-examine Jackson, Lampkins

moved the trial court to dismiss the indictment for failure to disclose

exculpatory evidence. The trial court did not immediately rule upon the motion

and permitted the Commonwealth to question Mary Forman, a victim’s

advocate, who was present at the meeting with Jackson. Forman contradicted

Jackson’s account of the meeting and stated Jackson had previously denied

ever seeing Carron with Smith or otherwise having knowledge that Carron

purchased marijuana from him.

Lampkins then renewed his motion to dismiss and explicitly informed the

trial court he was not asking for a mistrial. The trial court denied the motion

because it was not persuaded the Commonwealth committed any misconduct.

However, the trial court precluded the Commonwealth from calling Forman as

a rebuttal witness at trial 8 or otherwise referring to its prior meeting with

Jackson. Effectively, the trial court allowed Jackson’s testimony on direct

examination to stand unrebutted. Lampkins subsequently declined to cross-

examine Jackson.

8 Forman had been sitting in the courtroom throughout the trial. Thus, the trial court reasoned her testimony at trial would violate its order requiring the separation of witnesses.

12 Although Lampkins declined to request the trial court to revisit its prior

ruling excluding the toxicology reports, he now asserts for the first time that

the trial court should have reconsidered the issue sua sponte. In our view,

Jackson’s surprise trial testimony does not alter the relevancy analysis.

Jackson’s testimony merely showed Carron knew Smith had purchased

marijuana from him on various unspecified occasions. Jackson did not testify

Carron purchased drugs from Smith on the day of the murders. Again, there

was no evidence of any disagreement or ill will between Carron and Smith.

Lampkins’s bare assertion that “the illicit nature of a drug deal infers a motive

to kill” is purely speculative and does not comport with our reasoning in

Malone. 364 S.W.3d at 127.

Additionally, our decision in Brown v. Commonwealth, 416 S.W.3d 302,

310 (Ky. 2013), refutes Lampkins’s contention that the presence of marijuana

in the victims’ systems was sufficient to indicate recent use. In Brown, we held

the trial court properly excluded evidence of a murder victim’s toxicology report

where an expert witness “could not testify if the victim used marijuana on the

day of the shooting, nor could she testify as to the amount of marijuana

consumed or the effect the marijuana had on the victim.” Id. Here, Lampkins

failed to proffer any evidence on these necessary connective details. Thus, we

cannot conclude the trial court committed error, much less palpable error, by

failing, sua sponte, to revisit its prior evidentiary ruling.

13 B. Trial Court did not Abuse its Discretion by failing to Instruct the Jury to Accept a Judicially Noticed Fact

Lampkins next argues the trial court erred by refusing to instruct the

jury to accept a judicially noticed fact. We disagree.

Following Jackson’s testimony that Carron knew Smith and had

purchased marijuana from him, Lampkins moved the trial court to take judicial

notice that, on March 13, 2023, the Commonwealth disclosed to him that

Smith’s DNA was found in the parking lot outside Carron’s apartment. The

trial court initially questioned the need to take judicial notice of this fact when

the date of disclosure appeared on the face of the record. The Commonwealth

added it did not dispute the date of discovery. Lampkins then informed the

trial court he would be requesting an instruction. No further discussion on the

topic occurred at that time.

After the close of proof, Lampkins tendered the following proposed

instruction:

Lieutenant Donny Burbrink testified that he received a letter from the Kentucky State Police Lab dated September 21, 2021, regarding [Smith’s] DNA on the Swisher Sweets Package collected at 139 East Kingston Avenue on April 14, 2017. The Commonwealth did not provide this information to the Defendant until March 13, 2023. You may draw all fair and reasonable inferences from the fact that the Commonwealth did not disclose this evidence for eighteen (18) months.

The Commonwealth objected to the proposed instruction arguing the date of

discovery had not been placed into evidence. Additionally, the Commonwealth

argued there was no evidence of bad faith which would justify a missing

evidence instruction. Lampkins clarified he was requesting the court to take

14 judicial notice under KRE 201 as opposed to a missing evidence instruction.

The trial court indicated it had taken judicial notice of its records but

nevertheless refused to instruct or otherwise admonish the jury. Instead, the

trial court informed Lampkins he could address the date of disclosure during

closing argument.

The doctrine of judicial notice was known at common law and is founded

on “two maxims, that what is known need not be proved, ‘manifesta non

indigent probatione,’ and it matters not what is known to the judge if it is not

known to him judicially, ‘non refert quid notum sit judici, si notum non sit in

forma judicii[.]’” Riley v. Wallace, 188 Ky. 471, 222 S.W. 1085, 1086 (1920).

This common law rule is now codified in KRE 201. Doe v. Golden & Waters,

PLLC, 173 S.W.3d 260, 264 (Ky. App. 2005) (citing Robert G. Lawson, The

Kentucky Evidence Law Handbook, § 1.00 [5][d], at 19 (4th ed. 2003)). The

purpose of judicial notice

is a rule of convenience that allows a court to use commonly- known assumptions of fact as evidence. In doing so, however, the rule bypasses some of the fundamental requirements for verification and authenticity that otherwise safeguard the integrity of evidence.

Marchese v. Aebersold, 530 S.W.3d 441, 447 (Ky. 2017).

KRE 201(a) explicitly limits the scope of judicial notice to adjudicative

facts. While the Kentucky Rules of Evidence do not define the term

“adjudicative facts,” we have previously looked to interpretations of FRE 9 201

9 Federal Rules of Evidence.

15 for guidance. Clay v. Commonwealth, 291 S.W.3d 210, 218 (Ky. 2008).

Professor Lawson explained the meaning of adjudicative facts by quoting the

Advisory Committee’s Note to Subdivision (a) of FRE 201:

When a court or an agency finds facts concerning the immediate parties—who did what, where, when, how, and with what motive or intent—the court or agency is performing an adjudicative function, and the facts are conveniently called adjudicative facts. . . . Stated in other terms, the adjudicative facts are those to which the law is applied in the process of adjudication. They are the facts that normally go to the jury in a jury case. They relate to the parties, their activities, their properties, their businesses.

Robert G. Lawson, Kentucky Evidence Law Handbook § 1.00[1][c] (2023)

(emphasis added).

Similarly, adjudicative facts have been described as “the ultimate facts in

the case, plus those evidential facts sufficiently central to the controversy that

they should be left to the jury unless clearly indisputable.” Snell v. Suffolk

Cnty., 782 F.2d 1094, 1105 (2nd Cir. 1986) (quoting 21 C. Wright & K.

Graham, Federal Practice and Procedure: Evidence § 5103 at 478 (1977)).

Adjudicative facts are primarily 10 distinguished from legislative facts which “do

not usually concern the immediate parties but are general facts which help the

tribunal decide questions of law and policy and discretion.” McKinstry v. Wells,

10 The law also recognizes a third category of “non-evidence” facts that pertain

to the common process of human reasoning and “the capacity to do this with competent judgment and efficiency, [which] is imputed to judges and juries as part of their necessary mental outfit.” FRE 201, Advisory Committee’s Note, Subdiv. (a). (quoting Thayer, Preliminary Treatise on Evidence 279-80 (1898)). For example, “[w]hen a witness in an automobile accident case says ‘car,’ everyone, judge and jury included, furnishes, from non-evidence sources within himself, the supplementing information that the ‘car’ is an automobile, not a railroad car, that it is self-propelled, probably by an internal combustion engine, that it may be assumed to have four wheels with pneumatic rubber tires, and so on.” Id.

16 548 S.W.2d 169, 173 (Ky. 1977) (quoting 1 K. Davis Administrative Law

Treatise, § 7.02, p. 413 (1958)). Because the circumstances of every legal

dispute invariably differ, the question of whether a particular fact is

adjudicative is necessarily case and context specific. “It is not surprising, then,

to find that a fact may be judicially noticeable in one place and not in another,

for the basic reasons for judicial notice mark its limits.” Keeffe, Landis &

Shaad, Sense and Nonsense About Judicial Notice, 2 Stan. L. Rev. 664, 667

(1950).

Moreover, to properly be the subject of judicial notice, an adjudicative

fact “must be one not subject to reasonable dispute” and constitute information

that is either:

(1) Generally known within the county from which the jurors are drawn, or, in a nonjury matter, the county in which the venue of the action is fixed; or

(2) Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

KRE 201(b). As in Clay, 291 S.W.3d at 217, “[o]nly the latter is at issue in this

case under what has been deemed the ‘authoritative sources’ test.” (quoting

Lawson, at § 1.00[3][c]). Examples of the types of facts which may be judicially

noticed under this test include “scientific principles, dates, locations, historical

facts and the like.” Lawson, at § 1.00[2][c] (quoting Evidence Rules Study

Committee, Kentucky Rules of Evidence—Final Draft, p. 16 (Nov. 1989)).

Additionally, “it is a well-established principle that a trial court may take

judicial notice of its own records and rulings, and of all matter patent on the

17 face of such records, including all prior proceedings in the same case.” M.A.B.

v. Cabinet for Health & Fam. Servs., 456 S.W.3d 407, 412 (Ky. App. 2015).

To determine whether judicial notice should be taken under the

authoritative sources test, “[t]he judge should ask two questions: (1) Does the

source provide the precise fact to be noticed; and (2) Is the source accurate?”

Clay, 291 S.W.3d at 217 (quoting Lawson, at § 1.00[3][c]). Once judicial notice

of adjudicative fact has been taken, “[t]he court shall instruct the jury to

accept” the fact as conclusive. KRE 201(g).

This Court takes a “restrictive interpretation” of KRE 201 and

“construe[s] [it] as setting a high standard for admitting evidence by judicial

notice[.]” Marchese, 530 S.W.3d at 447. Indeed, “[t]he power of taking judicial

notice should be exercised with caution, and any doubt should be resolved in

favor of a refusal to exercise such power.” 2 Wharton’s Criminal Evidence §

5:10 (15th ed.) (footnote omitted). We review a trial court’s failure to instruct

the jury to accept a judicially noticed fact for abuse of discretion. Pozo-Illas v.

Commonwealth, 671 S.W.3d 118, 129 (Ky. 2023).

Here, we do not perceive the timing of discovery to have been an

adjudicative fact for the jury to consider. The focus and “central concern” of a

criminal trial is “the ultimate question of guilt or innocence.” Stone v. Powell,

428 U.S. 465, 490 1976); see also Oakes v. Commonwealth, 320 S.W.3d 50, 56

(Ky. 2010). Facts that are consequential to the determination of a criminal

action include facts “tending to prove an element of the offense” and also facts

“tending to disprove a defense.” Springer v. Commonwealth, 998 S.W.2d 439,

18 449 (Ky. 1999). Additionally, a defendant is entitled to elicit facts necessary to

present a defense. Melton, 670 S.W.3d at 866. This standard of relevancy is

flexible enough to allow both parties “to present a complete, un-fragmented,

un-artificial picture of the crime . . . including necessary context, background

and perspective.” Id. (quoting Major v. Commonwealth, 177 S.W.3d 700, 708

(Ky. 2005)).

Simply put, the date Lampkins received discovery from the

Commonwealth is not relevant to the determination of the present action

because it lacks any tendency to prove whether he committed the charged

offenses or otherwise establish his defense. Certainly, the circumstances

surrounding the police investigation were relevant to Lampkins’s defense that

Smith was the actual perpetrator, and he was permitted to develop evidence in

this regard to cast doubt on the integrity of the investigation. The timing of

discovery, however, is a litigation event which is a step removed from those

facts necessary “to ‘complete the story of the crime[.]’” Id. (quoting Webb v.

Commonwealth, 387 S.W.3d 319, 326 (Ky. 2012)).

Furthermore, if a defendant is aggrieved, prior to the conclusion of trial,

such that the withholding of information by the prosecution “creates a

reasonable doubt that would not otherwise exist[,]” the issue is whether a due

process violation has occurred. 11 See Timmons v. Commonwealth, 555 S.W.2d

11 Notably, Lampkins has not claimed a discovery or other due process violation

in connection with the disclosure of the DNA evidence at any point throughout these proceedings.

19 234, 240 (Ky. 1977) (quoting Romans v. Commonwealth, 547 S.W.2d 128, 131

(Ky. 1977)). When material evidence is wrongfully withheld, “counsel for the

aggrieved party must exhaust all reasonably available means to have the error

rectified (including, for example, a motion that the trial be recessed until the

facts can be ascertained) before he can be in a position to demand a mistrial.”

Id. (quoting Romans v. Commonwealth, 547 S.W.2d 128, 131 (Ky. 1977)).

Thus, the facts attendant to an alleged due process violation inform a legal

question to be resolved by the trial court, rather than a factual question to be

decided by the jury.

Certainly, a trial court may take judicial notice of its own records when

appropriate. 12 However, in the present context, the date of discovery was not

an adjudicative fact for the jury to consider because such information has no

bearing on the ultimate issue of guilt which is the central factual question in

dispute. Therefore, we hold the trial court should not have taken judicial

notice in the manner requested by Lampkins. Moreover, because KRE 201 was

inapplicable, the trial court was under no obligation to instruct the jury in

accordance with the rule’s provisions. See Pozo-Illas, 671 S.W.3d at 131

(holding trial court did not abuse its discretion by failing to instruct the jury on

the legal meaning of road sign despite taking judicial notice because legal

meaning of sign was not an adjudicative fact). Further, any possible error in

12 Had Lampkins asserted a discovery or due process violation, the timing of

discovery would have been an adjudicative fact for the trial court to resolve because, in that context, such date is a fact to which the law is applied.

20 this regard inured to Lampkins’s benefit because, without the inappropriate

taking of judicial notice, he would not otherwise have been permitted to argue

the timing of discovery to the jury. Thus, he cannot demonstrate prejudice.

See Elery v. Commonwealth, 368 S.W.3d 78, 90 (Ky. 2012) (noting “[e]rrors

which inure to the benefit of the defendant are not prejudicial.”).

C. Trial Court Properly Refused to Strike Two Jurors for Cause

For his third contention of error, Lampkins argues the trial court erred

by failing to strike two prospective jurors for cause. 13 Specifically, he argues

these jurors were incapable of accepting the presumption of innocence. We

disagree.

RCr 9.36(1) provides, “[w]hen there is reasonable ground to believe that a

prospective juror cannot render a fair and impartial verdict on the evidence,

that juror shall be excused as not qualified.” This rule “is the only standard for

determining whether a juror should be stricken for cause.” Sturgeon v.

Commonwealth, 521 S.W.3d 189, 193 (Ky. 2017). “To determine whether a

reasonable ground existed to doubt the challenged juror’s ability to render a

fair and impartial verdict, the trial court ‘must weigh the probability of bias or

prejudice based on the entirety of the juror’s responses and demeanor.’” Id. at

196 (quoting Sluss v. Commonwealth, 450 S.W.3d 279, 282 (Ky. 2014)). “When

there is uncertainty about the impartiality of a juror, that juror should be

13 We note this issue was properly preserved for review in accordance with the

six-step procedure established in Floyd v. Neal, 590 S.W.3d 245, 250 (Ky. 2019).

21 stricken.” Moulder v. Commonwealth, 681 S.W.3d 49, 52 (Ky. 2023). We review

a trial court’s refusal to strike a juror for cause for abuse of discretion. Id.

Prior to the commencement of voir dire, the trial court admonished the

prospective jurors that “[a]n indictment does not create any inference of guilt

against the defendant” and Lampkins should be convicted only if the jurors

believe him to be guilty beyond a reasonable doubt based solely on the evidence

at trial. During its examination, the Commonwealth inquired into the venire’s

prior experiences with law enforcement and the following discussion occurred:

Com.: We all have different views because we see things on media, T.V. We see things on social media. We hear things. Is the system right, correct, fair? 2881819, what do you think?

Juror 2881819: I think processes like this gives people a fair chance to prove their innocence.

The Commonwealth continued to examine other jurors regarding their

experiences and perceptions of the legal system. Various responses, both

positive and negative, were elicited before the following exchanged occurred:

Com.: Obviously, we’re on a criminal case. Police are a key part of a criminal case. Thinking about that, who would say that they tend to agree with Juror 3090458 or thinks more along those lines that there are systemic problems? Yes, 3179363. Yes, sir.

Juror 3179363: I think it was said earlier, that we have two different types of people, we have good police, bad police. I’d like to say that I believe in the system. So in my opinion, I mean, of course there are bad actors. However, I like to think that anybody that’s dealing with the law enforcement system, there’s a reason for that. There’s got to be probable cause, otherwise the case wouldn’t be pursued. And I don’t have any law enforcement background or anything like that.

At the conclusion of its examination, the Commonwealth addressed the venire:

22 Does everybody understand that Daquan Lampkins is presumed innocent as he sits there? That’s a bedrock of our system of justice, the presumption of innocence. And the burden of proof on the Commonwealth, here in Kentucky, is proof beyond a reasonable doubt. It’s not beyond all doubt. It is stated as proof beyond a reasonable doubt. Everybody understand that, that he is actually cloaked right now with the presumption of innocence? That is important.

None of the prospective jurors, including Jurors 2881819 and 3179363,

evinced a lack of understanding regarding the presumption of innocence or

otherwise communicated any refusal to accept the presumption of innocence in

response to the Commonwealth’s direct question.

Lampkins returned to presumption-of-innocence issue during his

examination of the venire:

So let’s talk about, we talked about the presumption of innocence and what that means. And I think actually the way [the Commonwealth] described it as this “cloak of innocence,” I like that. I like that image. The cloak of innocence. So, right now, we are going to ask you to deliberate. What is your verdict? Anyone think the verdict is guilty right now?

Again, none of the prospective jurors, including Jurors 2881819 and 3179363,

indicated they had prejudged Lampkins’s guilt or otherwise expressed any

difficulty accepting the presumption of innocence.

The standard for disqualification under RCr 9.36 does not require a trial

court to evaluate a juror’s responses out-of-context or in a vacuum. Sturgeon,

521 S.W.3d at 196. Indeed, in Sturgeon, we recognized “a prospective juror’s

response that appears on its face to be disqualifying may be based upon a

misunderstanding of the relevant facts or circumstances[,] and that “[c]larifying

questions may be used as needed to ascertain the juror’s true attitude about

23 subjects of potential bias.” Id. at 194. Here, the problematic statements were

elicited in response to general questions regarding the jurors’ perceptions of

law enforcement and the fairness of the legal system. Upon direct questioning

pertaining to the presumption of innocence, the prospective jurors expressed

no hesitation pertaining to their ability to impartially apply the law. Without

some additional demonstration of bias or prejudice, we fail to discern a

reasonable ground to doubt the qualifications of these prospective jurors.

Thus, we cannot conclude the trial court abused its discretion by declining to

strike Jurors 2881819 and 3179363 for cause.

D. Trial Court Properly Admitted Evidence of Prior Bad Acts

For his fourth contention of error, Lampkins argues the trial court erred

by improperly admitting evidence of prior bad acts. Specifically, he argues

evidence that Carron would flee to Jackson’s apartment whenever he became

abusive and evidence of the assault in the car as witnessed by Shaw were

inadmissible. We disagree.

Under KRE 404(a), the general rule is that evidence of other crimes is not

admissible to show that a defendant is a person of criminal disposition. KRE

404(b) provides an exception to the general rule and provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible:

(1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; or

24 (2) If so inextricably intertwined with other evidence essential to the case that separation of the two (2) could not be accomplished without serious adverse effect on the offering party.

This list of “other purposes” is “illustrative rather than exhaustive.” Rodriguez

v. Commonwealth, 107 S.W.3d 215, 219 (Ky. 2003) (quoting Colwell v.

Commonwealth, 37 S.W.3d 721, 725 (Ky. 2000)).

Trial courts must cautiously admit evidence of other crimes, wrongs, or

acts under KRE 404(b) “with an eye towards eliminating evidence which is

relevant only as proof of an accused’s propensity to commit a certain type of

crime.” Bell v. Commonwealth, 875 S.W.2d 882, 889 (Ky. 1994). To determine

the admissibility of uncharged acts, courts must ascertain whether the

evidence is relevant for a permitted purpose, probative of the uncharged act,

and not unduly prejudicial under KRE 403. Id. As with other evidentiary

rulings, the applicable standard of review is abuse of discretion. Id.

This Court has long recognized that evidence of a defendant’s prior

threats, violence, and animosity against the victim of the charged offenses is

“‘almost always admissible,’ under KRE 404(b), because it will almost always be

significantly probative of a material issue aside from the defendant’s

character.” Jenkins v. Commonwealth, 496 S.W.3d 435, 458 (Ky. 2016)

(quoting Noel v. Commonwealth, 76 S.W.3d 923, 931 (Ky. 2002)). Although this

“does not mean, of course, that evidence of prior acts against the same victim

is automatically admissible—relevance to a material issue and probativeness

must be shown, and the possibility of undue prejudice must still be

considered—but our experience with these cases has taught that in most of

25 them the Bell inquiry leads to admission.” Jenkins, 496 S.W.3d at 458.

Specifically, “evidence of prior threats and animosity of the defendant against

the victim is admissible as evidence of motive, intent or identity whereas

evidence of prior threats or violence against an unrelated third-party is

generally regarded as inadmissible character evidence[.]” Davis v.

Commonwealth, 147 S.W.3d 709, 722 (Ky. 2005) (internal citations omitted).

In the present appeal, we have no difficulty concluding the evidence of

prior bad acts was properly admitted. 14 Contrary to Lampkins’s argument, the

scope of our caselaw admitting evidence of prior violence by the defendant

against the victim is not limited to situations where the defense is the lack of

mens rea15 as in cases involving claims of self-defense, accident, or extreme

emotional disturbance. In White v. Commonwealth, 178 S.W.3d 470, 476 (Ky.

2005), we recognized the “[n]eed [for this type of evidence] is greatest and

relevance is clearest where the defense is denial of the criminal act[.]” Such

need is evident in the present matter because Lampkins denied committing the

charged offenses thereby placing his motive, intent, and identity squarely at

issue. Sherroan v. Commonwealth, 142 S.W.3d 7, 18 (Ky. 2004).

Additionally, Lampkins’s argument that the Commonwealth failed to

demonstrate a substantial similarity between the charged crimes and the prior

14 In light of our conclusion this evidence was admissible under KRE 404(b), we

need not consider Lampkins’s alternative argument concerning the applicability of KRE 406, which governs evidence of habit. 15 “Mens rea” is defined as “[t]he state of mind that the prosecution, to secure a

conviction, must prove that a defendant had when committing a crime[.]” Mens Rea, Black’s Law Dictionary (11th ed. 2019).

26 bad acts is without merit. The requirement of substantial similarity is a

prerequisite to the use of modus operandi 16 evidence to prove identity.

Woodlee v. Commonwealth, 306 S.W.3d 461, 465 (Ky. 2010). Modus operandi

evidence is not the sole means of proving identity under KRE 404(b), however.

Lawson, at § 2.30[4][f]. Prior bad acts may also be proven to “connect[] [the]

defendant to the charged offense through some object or circumstance that

coincidentally shows commission of some uncharged crime.” Id. We perceive

admissibility of acts of prior violence by the defendant against the victim to be

a prime example of a situation where identity may be proven by a

circumstantial connection without the necessity of showing substantial

similarity.

Here, the trial court properly conducted the Bell analysis before

admitting the evidence of prior bad acts. The evidence of Lampkins’s prior

abuse of Carron was clearly offered for a legitimate purpose other than that of

character as it was probative of his motive, intent, and identity. Further, the

probative value of this evidence outweighed the potential for undue prejudice.

Therefore, we discern no abuse of discretion.

F. Erroneous Admission of Reenactment was Harmless

Finally, Lampkins argues the trial court erred by permitting the

Commonwealth to dramatize the manner of Jones’s death in connection with

16 “Modus operandi” is defined as “[a] method of operating or a manner of

procedure; esp., a pattern of criminal behavior so distinctive that investigators attribute it to the work of the same person[.]” Modus Operandi, Black’s Law Dictionary (11th ed. 2019).

27 the expert testimony of the medical examiner, Dr. Jeffrey R. Springer. We

agree the Commonwealth failed to lay a proper foundation for this

demonstrative evidence but deem any error to have been harmless.

On the weekend prior to trial, the Commonwealth notified Lampkins of

its intent to use a model door as demonstrative evidence in connection with Dr.

Springer’s testimony. On direct examination, Dr. Springer detailed his findings

pertaining to Jones’s autopsy. He testified the cause of Jones’s death was a

gunshot wound to the torso and that the manner of death was homicide. Dr.

Springer further described the nature and location of Jones’s wounds and the

approximate pathway the fatal bullet traversed through his body.

At this point, the Commonwealth was permitted, over Lampkins’s

objection, to perform a demonstration illustrating its theory of how Jones

sustained his fatal injuries. The model door was brought into the courtroom.

An assistant prosecutor assumed the role of Jones, and Dr. Springer stepped

down from the witness stand to mark the approximate location of Jones’s

wounds on the assistant prosecutor’s shirt. The Commonwealth informed the

jury about the relative difference in height between Jones and the assistant

prosecutor. The Commonwealth then proceeded to narrate a reenactment of

how it believed Jones’s shooting occurred.

The primary investigator in the case, Detective Baker, portrayed the

shooter. Unbeknownst at first to the trial court and Lampkins, Detective Baker

was holding a gun. It was not immediately apparent that the gun was not real

and actually a prop. The shooter knocked on the model door and the victim

28 answered. As the door opened, the Commonwealth stated that a shot was fired

and the victim sustained a graze wound to his leg. At this point and for the

remainder of the demonstration, the shooter’s body was obscured from view on

the video record. The Commonwealth described a struggle at the door to shut

it, which was then reenacted before the jury. While the victim was hunched

over at the door, the Commonwealth narrated how the fatal shot occurred. The

Commonwealth then asked Dr. Springer if, based on his findings, the

demonstration reflected a possible scenario to which he replied that it did. The

entire demonstration lasted approximately two minutes.

Lampkins’s initial objection to the demonstrative evidence at trial was

that the proposed demonstration called for Dr. Springer to speculate on how

the shooting occurred. Under similar circumstances, we have distinguished

between an objection to the use of demonstrative evidence, as such, and an

objection to the scope of a witness’s expertise. Hargroves v. Commonwealth,

615 S.W.3d 1, 10 (Ky. 2021). When a medical examiner is otherwise qualified

to testify as an expert witness in a particular case, he or she may properly

opine on the location of wounds and the trajectory of bullets in response to a

party’s questions in connection with the reenactment of a proposed scenario.

Id. at 12. We cannot conclude the trial court abused its discretion by

overruling the objection to the demonstration on the ground it called for the

witness to speculate.

After the demonstration concluded, however, Lampkins also moved the

trial court to admonish the jury to disregard the reenactment in its entirety

29 because the Commonwealth did not provide notice that a gun would be used.

He further objected to the manner in which the use of the gun had been

dramatized. The trial court refused to admonish the jury to disregard the

entire demonstration, but expressed concern regarding the prejudicial effect of

the gun and instructed the jury as follows:

Ladies and gentlemen of the jury, I just want to take a minute to let you know that neither the Court nor the defense was aware that demonstration would involve the use of what I now know was a fake gun. The gun that was used in that demonstration, the fake gun, I know that Detective Baker was not using a real gun, is not the gun that was used in this case. We have no idea if it is even similar to the gun used in this case and there is no gun that you will be presented with in relation to this case.

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).

Here, we do not perceive the trial court’s admonition to have been

effective under the second exception to the general rule. The prop gun was

apparently chosen at random and used without any prior notice or explanation

to the jury. Thus, it lacked a factual basis. Moreover, as discussed in detail

30 below, our precedents recognize the significant potential for undue prejudice

where demonstrative evidence lacks some degree of fair comparison to real-

world circumstances. Rankin v. Commonwealth, 327 S.W.3d 492, 499 (Ky.

2010). In further support of our conclusion regarding the inefficacy of the

admonition, the trial court tellingly remarked on the record that the jury

“would not be able to get [the demonstration] out of their mind anyway.” We

now turn to consider whether the use of the prop gun was appropriate.

This Court has generally permitted the use of a demonstration in the

form of a reenactment “during the presentation of evidence while it is subject to

exploration on cross-examination.” Hargroves, 615 S.W.3d at 10. Despite our

longstanding approval, the admissibility of demonstrative evidence is not

specifically addressed by the Kentucky Rules of Evidence. Rankin, 327 S.W.3d

at 498. Instead, such evidence is subject to the general rules of relevancy

contained in KRE 402 and 403. Id. In Rankin, after noting the relative dearth

of Kentucky caselaw pertaining to experiment evidence, 17 we applied the

standard contained in federal precedents which “have held that experiment

evidence is generally admissible if it bears upon a material issue and if the

proponent establishes a sufficient similarity between the conditions of the

17 While Rankin dealt specifically with evidence of an experiment as opposed to

a demonstration, we note “[t]here is no formal distinction between an in-court demonstration and an in-court experiment, although it might be said that a demonstration becomes an experiment when the witness, particularly an expert witness, attempts to reenact some aspect of an event in order to show a specific result that is at issue in the trial.” 2 McCormick On Evid. § 217 (8th ed.). Notwithstanding any semantic difference between an experiment and demonstration, we conclude the same legal standard applies to both under Rankin.

31 experiment and those of the event in question.” Id. (citing United States v.

Williams, 461 F.3d 441 (4th Cir. 2006); United States v. Baldwin, 418 F.3d 575

(6th Cir. 2005); United States v. Gaskell, 985 F.2d 1056 (11th Cir. 1993); and

Four Corners Helicopters, Inc. v. Turbomeca, S.A., 979 F.2d 1434 (10th Cir.

1992)).

The proponent of demonstrative evidence bears the burden of

establishing sufficient similarity. Lawson, at § 11.15[1] (citing United States v.

Wanoskia, 800 F.2d 235, 237–238 (10th Cir. 1986)). The requisite degree of

sufficient similarity “depends on the purpose for which the evidence is being

offered.” Rankin, 327 S.W.3d at 498. We explained:

If the experiment is offered as a simulation of actual events, then there must be a substantial similarity between the experimental conditions and those which are the subject of the litigation. If, on the other hand, the experiment is not meant to simulate what happened, but rather to demonstrate some general principle bearing on what could or what was likely to have happened, then the similarity between the experimental and the actual conditions need not be as strong.

Id. at 498-99 (citations omitted).

The line demarcating the simulation of actual events and the

demonstration of general scientific principles can be “very difficult to draw.”

McKnight v. Johnson Controls, Inc., 36 F.3d 1396, 1402 (8th Cir. 1994) (citing

Gilbert v. Cosco Inc., 989 F.2d 399, 403 (10th Cir. 1993)). In the absence of a

bright line rule, “the critical point is not one of labels.” Id. (quoting Fusco v.

General Motors Corp., 11 F.3d 259, 264 (1st Cir. 1993)). “Instead, the key

question is ‘whether the demonstration is sufficiently close in appearance to

32 the original [incident] to create the risk of misunderstanding by the jury, for it

is that risk that gives rise to the special requirement to show similar

conditions.’” Id. (quoting Fusco, 11 F.3d at 264). Troublesome cases result

“where some principles of some kind may be demonstrated but in a fashion

that looks very much like a recreation of the event that gave rise to the trial.”

Id. (quoting Fusco, 11 F.3d at 264 n.5). “The more blurred that distinction

[between a simulation and demonstration] becomes, the greater the risk for

prejudice.” Gilbert, 989 F.2d at 403.

Regardless of where certain evidence falls on the spectrum between

simulation and demonstration, the overriding consideration is that “the

similarities must be such as to afford a fair comparison, and the court should

be mindful of the significant risk of undue prejudice inherent in dramatic

presentations offered to the jury as reenactments of the events being litigated.”

Rankin, 327 S.W.3d. at 499. Ultimately, “[i]f the experiment evidence is

sufficiently similar to be probative and if its probative value is not outweighed

by undue prejudice, then differences between the experiment and the event at

issue go to the weight of the evidence, not its admissibility.” Id. As an

evidentiary ruling, we review a trial court’s decision for abuse of discretion. Id.

We cannot conclude the Commonwealth made the requisite foundational

showing of a fair comparison here. The use of the prop gun is especially

problematic because it was chosen at random without any comparison to the

type of weapon believed to have been used in the actual murders. Moreover,

the Commonwealth failed to alert the trial court and Lampkins to its intended

33 use of this dramatic device. Consequently, the jury was unaware that the gun

was merely a random prop at the time the reenactment unfolded. Lampkins

was then left in the position to obtain an admonition after the fact, which the

trial court acknowledged would likely be ineffective. The purpose of an in-court

demonstration is “to illustrate or explain what the witness is trying to

describe.” 2 McCormick On Evid. § 217 (8th ed.). It is not an invitation for the

jury to speculate.

Additionally, our approval of a similar reenactment in Hargroves

accounted for the fact the jury was apprised of relevant differences prior to the

demonstration. 615 S.W.3d at 11; see also Daniel v. Commonwealth, 607

S.W.3d 626, 642-43 (Ky. 2020) (noting demonstration of bullet trajectory on a

model head was admissible under Rankin analysis where, among many factors,

jury was informed model was not to scale). In the present appeal, we are also

troubled that the jury was not informed of other relevant differences between

the conditions of the reenactment and actual events. While the Commonwealth

compared the height of the assistant prosecutor to that of the victim, no

additional comparisons were made to contextualize the reenactment. There

was no comparison between the size of the model door and the actual door of

Carron’s apartment. Similarly, no comparison was made between Lampkins’s

body-type and that of the detective who portrayed him.

To be sure, complete identity of these elements is not required, but where

a demonstration appears to dramatize actual events, some consideration of

sufficient similarity is a necessary precondition to admissibility. See Meredith

34 v. Commonwealth, 959 S.W.2d 87, 92 (Ky. 1997) (holding evidence of out-of-

court experiment inadmissible where no attempt was made to establish

similarity between experiment and actual events). We further note

[t]he ability to cross-examine is not a substitute for the offering party’s burden of showing that a proffered demonstration or experiment offers a fair comparison to the contested events. Particularly where the demonstration unfairly tended to prejudice the jury on the one genuinely contested issue, without providing any significantly probative testimony, neither the cautionary instruction nor the ability to cross-examine was sufficient to cure the error.

Gaskell, 985 F.2d at 1062. Under these circumstances, we cannot conclude

the reenactment was properly admitted. However, although the

Commonwealth failed to establish a proper foundation, this does not end the

inquiry.

It is well-established that “a nonconstitutional evidentiary error may be

deemed harmless if the reviewing court can say with fair assurance that the

judgment was not substantially swayed by the error.” Murray v.

Commonwealth, 399 S.W.3d 398, 404 (Ky. 2013) (citing Kotteakos v. United

States, 328 U.S. 750 (1946)). Under the harmless error standard, we do not

ask simply,

whether there was enough [evidence] to support the result, apart from the phase affected by the error. [The standard] is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.

Id. (quoting Kotteaakos, 328 U.S. at 765.).

An exhaustive review of the present record convinces this Court that the

error in admitting the demonstration did not substantially influence the

35 outcome of this case. In a murder prosecution, “[t]he commonwealth does not

have to show motive, though, in cases where the commonwealth is resting its

case entirely upon circumstantial evidence, it frequently becomes quite

important that motive be shown.” Morgan v. Commonwealth, 228 Ky. 432, 15

S.W.2d 273, 275 (1929).

Here, the circumstantial evidence of Lampkins’s motive, intent, and

identity was particularly compelling. Carron was shot thirteen times at

indeterminate range with seven of those gunshots striking her in the back. The

testimony at trial recounted multiple acts of physical abuse that Lampkins

perpetrated upon Carron. Because of the ongoing abuse and harassment,

Carron obtained an EPO against Lampkins less than five days before the

murders. He continued to contact Carron in violation of the EPO. Lampkins

called Carron repeatedly during the timeframe leading up to the murders yet he

made no further attempts to communicate with her thereafter. The impact of

these events on Lampkins’s motive to commit both murders was further

compounded by Carron’s refusal to allow him to return to her apartment

because of her relationship with Jones. Additionally, Lampkins’s message to

Carron’s mother revealed specific details of the crimes that, presumably, only

the killer would have known.

The Commonwealth also adduced persuasive evidence concerning

Lampkins’s opportunity to commit the charged offenses. Around the time of

the murders, cell-phone data indicated Lampkins was traveling from the area

of his home toward Carron’s apartment. Surveillance videos taken from

36 cameras posted at the apartment complex also showed a silver vehicle

matching the one owned by Lampkins in the vicinity of Carron’s apartment at

the time of the murders.

Further, the Commonwealth produced substantial evidence to refute

Lampkins’s alibi and aaltperp defenses. Detective Baker investigated each of

the various alibis Lampkins offered for the time of the murders and testified

that they did not “pan out.” Police did not uncover any connection linking the

alleged drug dealer Smith to the murders. Lampkins’s reliance on the fact that

Smith’s DNA evidence was found on a cigar wrapper in the parking lot is

unconvincing. The evidence at trial failed to establish any credible motive for

Smith to kill Carron and Jones. In consideration of the evidence as whole, we

cannot conclude the reenactment swayed the jury’s verdict. Therefore, while

the trial court erred by allowing the reenactment without a showing of

sufficient similarity, we conclude the error was harmless.

CONCLUSION

Having considered the briefs, the law, and the record, we discern no

reversible error. Accordingly, the judgment of the Jefferson Circuit Court is

affirmed.

All sitting. All concur.

37 COUNSEL FOR APPELLANT:

Christopher B. Thurman Louisville Metro Public Defender’s Office

COUNSEL FOR APPELLEE:

Russell M. Coleman Attorney General of Kentucky

Joseph A. Beckett Assistant Attorney General