IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: AUGUST 14, 2025 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2024-SC-0332-MR
DAZZAMON R. JONES APPELLANT
ON APPEAL FROM KENTON CIRCUIT COURT V. HONORABLE PATRICIA M SUMME, JUDGE NO. 23-CR-00909
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A jury of the Kenton Circuit Court found Appellant Dazzamon R. Jones
guilty of the murder of Edgar Lopez and recommended the maximum sentence
of life in prison. The trial court sentenced Jones in accordance with that
recommendation. Jones now appeals to this Court as a matter of right. Ky.
Const. § 110(2)(b). Following a careful review, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On August 8, 2023, Brian Gray approached Edgar Lopez from behind on
the street and hit him in the head three or four times with a brick. Lopez
responded to Gray’s attack by slamming Gray’s head into the ground several
times, after which Gray stumbled away bloodied and battered. A witness
testified that as Gray stumbled away, Lopez smashed a bottle on the ground and stated that he knew where Gray lived and that he was going to run Gray
over with his car. Another witness similarly testified that he heard Lopez state
he was going to run over or shoot Gray.
Appellant Jones, who ultimately killed Lopez, testified that he observed
the fight between Gray and Lopez while sitting in his car. According to Jones,
as Gray staggered away from the fight, Gray passed Jones’ car and stated to
Jones that Lopez was trying to kill him. Jones testified that at that time, he
did not actually believe Lopez was trying to kill Gray. However, he then saw
Lopez in a rage, yelling, and throwing a bottle on the ground before pursuing
Gray in his car. Jones testified that he then believed Lopez was in fact trying
to kill Gray, and therefore drove in pursuit of Lopez.
Gray’s aunt and uncle Ramada and Floyd Harris testified they were
checking on a home in the area that they owned when they saw a bloody Gray
stagger out of an alley. Gray then staggered into the yard of the Harris’ home
and lay down behind a low cinderblock wall that surrounded the yard while
Ramada called 911. Witness testimony and crime scene photos entered into
evidence at trial establish that Lopez then pulled his car out from an alley
across the street from the yard where Gray had taken refuge, turned right, and
stopped his car. Lopez’s car was thus stopped in the far lane of traffic parallel
to the wall behind which Gary was lying. Ramada testified she then heard
Lopez saying something to Gray.
Jones drove up shortly thereafter armed with an AR-15 he had
previously purchased from someone at a White Castle. He immediately exited
2 his vehicle and started shooting at Lopez, who was still sitting in his car which
remained stationary in the far lane of traffic parallel to the wall behind which
Gray was lying. Lopez was shot 29 times and died as a result of the shooting.
At trial, Jones testified that when he pulled up behind Lopez, he got out
and saw Lopez saying something while his hand was hanging out of the
window. Jones contended that he thought Lopez had a gun, although he also
testified he did not actually see Lopez with a gun. He told the jury that he felt
Lopez was going to kill Gray, that he shot Lopez to keep him from killing Gray,
and that he had intended only to stop Lopez, not to kill him. He acknowledged
that Gray was lying behind the low cinderblock wall around the yard at the
time of the shooting, but that he believed Gray was pinned in. Jones also
acknowledged that Lopez was sitting in his car, and would have had to exit the
vehicle and go to the yard where Gray was located to harm him. Jones also did
not dispute that he had emptied the entire magazine during the course of the
shooting.
Police responded to a call about the shooting and arrived on the scene
where they discovered Lopez dead inside his bullet-riddled car. No weapons
were located in the vehicle, nor did police discover any weapons on Lopez’s
body. Police reviewed surveillance video of the shooter’s car and determined it
was registered to Jones. They could not locate Jones or his vehicle for several
days, during which they obtained a search warrant for Jones’ house. During
the execution of that warrant police discovered an AR-15 magazine and other
3 rounds of ammunition. Jones turned himself in to police four days after the
Jones was indicted, and the jury was ultimately instructed on charges of
murder as well as lesser-included offenses of first-degree manslaughter either
under extreme emotional disturbance (“EED”) or intended only to cause serious
physical injury, and second-degree manslaughter resulting from wanton
conduct. However, the trial court denied Jones’ request for an instruction on
the defense of protection of another. The jury found Jones guilty of murder
and recommended the maximum sentence of life in prison, which the trial
court imposed. Jones now appeals as a matter of right.
ANALYSIS
Jones raises four issues for our review: (1) whether the trial court erred
in denying his request for an instruction on the defense of protection of
another; (2) whether the trial court erred in admitting statements Gray made to
law enforcement, despite the fact Gray was not called as a witness at trial;
(3) whether the trial court erred in allowing Lopez’s live-in girlfriend to provide
victim impact testimony; and (4) whether Jones was unduly prejudiced by the
prosecutor’s closing argument. We review each issue in turn, providing
additional facts as necessary.
I. The Trial Court Did Not Abuse Its Discretion In Refusing To Instruct The Jury On Protection Of Another.
Jones first argues that the trial court erred in refusing to instruct the
jury on the defense of protection of another. Jones tendered an instruction
that included the defense, and thus his objection is preserved. Brafman v. 4 Commonwealth, 612 S.W.3d 850, 857 (Ky. 2020). Because this allegation of
error is preserved, “we review the trial court’s decision not to give the
instruction for abuse of discretion[.]” Id. Indeed, as we have previously
observed, because a trial court’s decisions in the crafting of jury instructions
“are necessarily based upon the evidence presented at the trial, the trial judge’s
superior view of that evidence warrants a measure of deference from appellate
courts that is reflected in the abuse of discretion standard.” Sutton v.
Commonwealth, 627 S.W.3d 836, 848-49 (Ky. 2021) (quoting Sargent v.
Shaffer, 467 S.W.3d 198, 203 (Ky. 2015)).
“[A]ll criminal defendants have a due process right to present a defense,
including jury instructions that give effect to a defendant’s theory of the case.
It is precisely because of this due process right that trial courts have a duty to
instruct the jury on the whole law of the case.” Breazeale v. Commonwealth,
600 S.W.3d 682, 691 (Ky. 2020). Thus, a trial court must provide “instructions
applicable to every state of the case deducible or supported to any extent by the
testimony.” Gribbins v. Commonwealth, 483 S.W.3d 370, 373 (Ky. 2016)
(quoting Taylor v. Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999). In
determining whether the evidence presented at trial requires the giving of a
requested instruction, “we must ask ourselves, construing the evidence
favorably to the proponent of the instruction, whether the evidence would
permit a reasonable juror to make the finding the instruction authorizes.”
Springfield v. Commonwealth, 410 S.W.3d 589, 594 (Ky. 2013). If so, the
instruction must be given. Brafman, 612 S.W.3d at 858 (“[A] trial court is
5 required to instruct the jury on affirmative defenses and lesser-included
offenses if the evidence would permit a juror reasonably to conclude that the
defense exists or that the defendant was not guilty.”) (quoting Breazeale, 600
S.W.3d at 691).
Here, Jones requested and was denied an instruction that would have
allowed the jury to find that his killing of Lopez was justifiable because it was
undertaken in lawful protection of another. Our protection-of-another statute
provides in relevant part that:
The use of deadly physical force by a defendant upon another person is justifiable when:
(a) The defendant believes that such force is necessary to protect a third person against imminent death, serious physical injury, kidnapping, sexual intercourse compelled by force or threat, or other felony involving the use of force, or under those circumstances permitted pursuant to [the “stand your ground” statute]; and
(b) Under the circumstances as they actually exist, the person whom he seeks to protect would himself have been justified under [the perfect and imperfect self- defense statutes] in using such protection.
Kentucky Revised Statutes (“KRS”) 503.070(2). Thus, the statute sets forth two
elements which both must be satisfied before a defendant’s killing of another in
protection of a third person is justified: first, the defendant must have believed
deadly force was necessary to protect the third person from at least one of the
statutorily enumerated harms; and second, the third person himself also would
have been justified under the circumstances as they actually existed in using
deadly force in self-defense, whether perfect or imperfect. As we have
6 previously noted, while the first element is subjective, the second element sets
forth an objective standard, because “the defender is judged in accordance with
the circumstances as they actually existed with respect to whether the person
being protected would have been privileged to use deadly physical force in self-
protection.” Springer v. Commonwealth, 998 S.W.2d 439, 455 (Ky. 1999)
(emphasis added); see also id. (finding defendant not entitled to protection-of-
another instruction where “[u]nder the actually existing facts, there was no
need to kill [victim] in order to protect [third person] from ‘imminent death,
serious physical injury . . . or [forcible] sexual intercourse’ at his hands”)
(quoting KRS 503.070(2)(a)).
Thus, in determining whether a jury should be instructed on the defense
of protection-of-another in a case involving deadly force, a court must ask two
questions. First, the court must ask whether the evidence presented at trial
could allow a juror to reasonably conclude that the defendant subjectively
believed deadly force was necessary to protect the third person from a
statutorily enumerated harm set forth in KRS 503.070(2)(a). Second, the court
must ask whether the evidence presented at trial could also allow a juror to
reasonably conclude that objectively, the protected third person would himself
have been justified under the circumstances as they actually existed in using
deadly force in either perfect or imperfect self-defense in conformity with the
requirements set forth in KRS 503.050 and KRS 503.060.
Here, as to the first element, the evidence at trial was sufficient to allow a
juror to reasonably conclude that Jones subjectively believed deadly force was
7 necessary to stop Lopez from killing Gray. Indeed, Jones specifically testified
at trial that he believed Lopez was going to kill Gray, and that he (Jones)
believed he needed to stop Lopez from doing so. Thus, the first element was
satisfied.
However, a protection-of-another instruction was warranted only if the
evidence was also sufficient to satisfy the second element of KRS 503.070(2).
That is, the trial court was required to give the instruction only if the evidence
also could have allowed a juror to reasonably conclude that Gray himself would
have been justified under the circumstances as they actually existed in using
deadly force against Lopez in self-defense. KRS 503.070(2)(b). And Gray would
have been justified in using deadly force against Lopez only if he both faced an
actual or imminent use of unlawful force and believed that deadly force was
necessary to protect himself against death or serious physical injury. KRS
503.050(1), (2). 1 We conclude that the trial court did not abuse its discretion
in finding that this standard was not met.
At the time of the shooting, Lopez was not using force against Gray. Nor
could the evidence support a finding that any use of force by Lopez was
1 KRS 503.060 sets forth requirements for the defense of imperfect self-
protection. The statute provides in relevant part that one’s use of force is not justified where he is the initial aggressor, unless either 1) his initial force is nondeadly and is answered with force causing a belief of imminent danger of death or serious physical injury, or 2) he withdraws from the encounter, communicates his intent to do so, and nevertheless is faced with a continuing or threatened use of unlawful force. Here, though Gray was the initial aggressor, Lopez pursued him even after he communicated his intent to cease combat by retreating from the scene of the initial fight. Thus, Gray’s mere status as the initial aggressor alone would not have barred his use of force in self-protection under KRS 503.050. 8 imminent. “Imminent” for purposes of KRS 503.050 is defined as “impending
danger,” a term we have construed to require that the use of force be “[a]bout
to occur at any moment.” KRS 503.010(3); Lickliter v. Commonwealth, 142
S.W.3d 65, 71 (Ky. 2004) (quoting Webster’s II New Riverside University
Dictionary 611 (1984)). However, the evidence could not support a finding that
at the time of the shooting, Lopez was about to “at any moment” strike Gray
with his car. Indeed, when Jones opened fire Lopez was sitting in his vehicle
across the street from where Gray was lying behind a wall. Though the vehicle
was running and was later discovered to be in gear, it remained stationary.
And perhaps most notably, Lopez’s vehicle was in any event across the street
from and parallel to the wall behind which Gray was lying, pointed away from
rather than at Gray. Thus, while witnesses admittedly testified that Lopez had
threatened to run Gray over with his car, to do so Lopez would have had to
press the accelerator and then drive in an arc across the opposing lane of
traffic, up over the curb, around a large tree that was along the curb, and then
finally towards and through the low cinderblock wall behind which Gray was
lying. Under such circumstances, there could be no reasonable finding that
Lopez was about to “at any moment” run over Gray as would be necessary for
Gray himself to have used deadly force against Lopez.
Nor did Lopez brandish a weapon, exit his vehicle, or otherwise engage in
conduct that could support a finding that he was about to use deadly force or
force causing serious physical injury against Gray “at any moment.” Indeed, a
search of Lopez and his vehicle after the shooting revealed no weapons. Thus,
9 because the evidence could not support a reasonable finding that Gray faced
an imminent use of force by Lopez, and because Gray himself therefore could
not have used deadly force against Lopez in self-defense, the trial court did not
abuse its discretion in refusing to provide an instruction permitting a finding
that Jones’ killing of Lopez was justified as protection of another.
Jones argues nonetheless that he was entitled to a protection-of-another
defense given our holding in Mishler v. Commonwealth that even a preposterous
defense theory warrants an instruction. 556 S.W.2d 676 (Ky. 1977). We so
held because “it is the privilege of the jury to believe the unbelievable if the jury
so wishes.” Id. at 680. However, we find Mishler distinguishable from the facts
here.
In Mishler, the defendant was charged with robbing an IGA store. Id. at
678. At trial, the defendant testified that he remembered the events both
leading up to the moment he approached the cash register and his return to
his vehicle in the parking lot, but that he blacked out from intoxication in the
intervening time during which he actually demanded money from the clerk. Id.
at 679. He therefore requested an instruction on the defense of intoxication,
which the trial court refused to give. Id. We held that even though the story
was “preposterous,” it raised an issue of fact for the jury, which may choose to
believe the unbelievable if it so wishes. Id. at 680. As such, the trial court
erred in refusing to give the requested intoxication instruction. Id. Here,
unlike Mishler, there was simply no evidence—preposterous or otherwise—to
10 support the requested jury finding, i.e., that Gray faced an imminent use of
force by Lopez.
Moreover, the physical impossibility of Lopez “at any moment” striking
Gray with his stationary vehicle, which was parked parallel to and across the
street from the wall behind which Jones was lying, also distinguishes this case
from Mishler. In Mishler, it was not impossible as a matter of the physical laws
of nature for the defendant to have blacked out solely at the moment the
robbery was effectuated. Thus, the jury should have been allowed to consider
his intoxication defense. In contrast, here it would have been physically
impossible for Lopez, whose vehicle was across the street and pointed away
from Gray, to have been “about to at any moment” driving his vehicle towards
Gray in a threatening manner. Under such circumstances, we have noted that
the usual reservation of fact-finding to the jury need not be applied in blind
ignorance of the laws of physics:
It is, to be sure, ordinarily the function of a jury to determine the weight and effectiveness of the evidence. But . . . the jury may not . . . base its verdict upon a statement as to what occurred or how something happened when it is opposed to the laws of nature or is clearly in conflict with the scientific principles, or base its verdict upon testimony that is so incredible and improbable and contrary to common observation and experience as to be manifestly without probative value.
Ross v. Commonwealth, 531 S.W.3d 471, 476 (Ky. 2017) (quoting Coney
Island Co. v. Brown, 290 Ky. 750, 162 S.W.2d 785 (1942)); see also id.
(noting that rule reserving factual determinations to the jury “cannot
apply where the only evidence upon which such adverse party rests his
11 right to succeed consists of a statement of alleged facts, inherently
impossible and absolutely at variance with well-established and
universally recognized physical laws.”) (quoting Louisville & N.R. Co. v.
Chambers, 165 Ky. 703, 178 S.W. 1041 (1915)).
As such, Jones was not entitled to a protection-of-another defense
premised on his physically impossible theory that Gray faced an
imminent use of force by Lopez, who was seated unarmed in a stationary
vehicle pointed away from Gray who was lying behind a low wall. Quite
simply, while under Mishler a preposterous but scientifically possible
story supported by the evidence at trial may require the giving of an
instruction, a trial court is not required to instruct the jury on a theory of
the case premised on the physically impossible. As such, we find no
reversible error in the trial court’s refusal to provide a protection-of-
another instruction to the jury.
II. Though Admission Of Gray’s Statements To Law Enforcement Was Error, It Was Harmless.
Jones next argues the trial court erred in admitting recorded statements
that Gray, who was unavailable for trial, made to law enforcement the day after
the shooting. Gray did not testify at trial because he also had pending charges
from his conduct attacking Lopez in the same incident. Jones objected to the
admission of Gray’s statements to law enforcement, and his objection is thus
preserved. Kentucky Rule of Evidence (“KRE”) 103(a)(1). We therefore review
for abuse of discretion. Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007)
(“Since the trial court’s unique role as a gatekeeper of evidence requires on-the- 12 spot rulings on the admissibility of evidence, we may reverse a trial court’s
decision to admit evidence only if that decision represents an abuse of
discretion.”).
At trial, Jones sought to offer testimony that Gray walked by Jones’ car
after the initial fight and said Lopez was trying to kill him. The Commonwealth
objected that the statement was inadmissible hearsay. Jones responded that
the statement was not admitted to actually prove that Lopez was trying to kill
Gray, but rather only to demonstrate Jones’ state of mind upon hearing that
statement. The trial court agreed that the statement was not hearsay because
it went to prove Jones’ state of mind upon hearing the statement rather than
whether Lopez actually intended to kill Gray. The trial court thus allowed
Jones to testify to the statement.
In rebuttal, the Commonwealth sought to play clips of Gray’s interview
with law enforcement the day after the shooting that it contended were
inconsistent with Jones’ testimony that Gray had said Lopez was trying to kill
him. The Commonwealth asserted to the trial court that the statements were
admissible under KRE 806, which permits impeachment of the credibility of a
non-testifying declarant whose hearsay statements have been admitted into
evidence. Jones argued that the statements were not admissible under KRE
806 because the initial statement by Gray had not been admitted as hearsay
but rather to prove Jones’ state of mind.
The trial court allowed the Commonwealth to play several of Gray’s
statements for the jury. Those statements included that 1) Gray did not want
13 Lopez to die because of the fight and would not have shot him simply because
of the fight; 2) the fight arose because Gray and Lopez had an understanding
they would fight one another the next time they met, but the understanding did
not go so far as to include that either would shoot the other; and 3) Gray did
not want Lopez dead simply because of the fighting. The apparent purpose of
the evidence was to persuade the jury that either Gray did not actually tell
Jones that Lopez was trying to kill him, or that Gray himself did not believe
that to be the case.
Jones now argues that the trial court erred in admitting Gray’s
statements to law enforcement, given that Gray did not testify at trial. First,
Jones contends Gray’s statements were not admissible under KRE 806. We
agree.
KRE 806 provides in relevant part that
[w]hen a hearsay statement has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant’s hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain.
(Emphasis added). As this plain language makes clear, KRE 806 permits
impeachment of the credibility of a non-testifying declarant only if other
“hearsay” by that declarant has been admitted into evidence. Our Rules define
hearsay as “a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter
14 asserted.” KRE 801(c) Thus, a statement is hearsay only if it is both 1) not
made by the declarant at the trial or hearing, and 2) offered in evidence to
prove the truth of what was asserted in the out-of-court statement. As a
corollary—and as we have previously noted—an out-of-court statement offered
for some purpose other than to prove the truth of what was asserted in that
statement simply is not hearsay. Luna v. Commonwealth, 460 S.W.3d 851, 872
(Ky. 2015) (“[T]he evidence is admissible because it is not hearsay. Indeed, no
hearsay exception . . . is necessary as [the] statements were not offered for the
truth of the matter asserted.”).
Here, after Jones testified that Gray said Lopez was trying to kill him, the
Commonwealth sought to introduce Gray’s statements to law enforcement
under KRE 806 to contradict that testimony. However, the trial court did not
admit Gray’s statement that Lopez was trying to kill him to prove the truth of
the matter asserted in that statement, i.e., that it was true Lopez was trying to
kill Gray. Rather, the trial court admitted the statement for a different
purpose, namely as proof of Jones’ state of mind upon hearing Gray say that.
As such, because Gray’s statement was not admitted to prove that Lopez was
in fact trying to kill Gray, but rather for a different purpose, it was not
admitted as and did not constitute “hearsay.”
Thus, because KRE 806 applies only where “hearsay” of a non-testifying
declarant has been admitted, and because Gray’s statement that Lopez was
trying to kill him was not “hearsay” because it was admitted for a purpose
other than to prove its truth, KRE 806 was not a permissible basis to admit
15 Gray’s later statements to law enforcement. Indeed, because the statement
was not admitted to prove that Lopez was in fact trying to kill Gray, but rather
only Jones’ state of mind upon hearing that statement, the ultimate truth of
the statement was irrelevant and thus there was no need for the
Commonwealth to impeach Gray or his statement. See Robert G. Lawson, The
Kentucky Evidence Law Handbook, § 4.35[4][d] n.15 (2023) (“KRE 806 has no
application to out-of-court statements admitted into evidence for some purpose
other than to prove the truth of their contents (non-hearsay), for in this
situation the credibility of the declarant is insignificant and beyond attack.”);
see also United States v. Pena, 24 F.4th 46, 68 (1st Cir. 2022) (noting that
analogous Federal Rule of Evidence 806 “allows an attack on a non-testifying
declarant’s credibility if the declarant’s out-of-court statement is admitted into
evidence for its truth. Otherwise, the out-of-court statement would not
constitute admissible hearsay.”) (citation omitted). Thus, the trial court erred
in concluding that KRE 806 authorized the admission of Gray’s later
statements to law enforcement.
The Commonwealth argues that the statements were also admissible
under KRE 803(3). We disagree. That Rule provides that “[a] statement of the
declarant’s then existing state of mind, emotion, sensation, or physical
condition” is not excluded by the hearsay rules. Notably, however, the
statement must be one of a “then existing” state of mind or condition. It does
not permit the admission of statements recalling an earlier state of mind or
condition:
16 The state-of-mind exception is limited to a statement about a then-existing mental state or condition. The “crucial component of this [exception] [i]s contemporaneity of the declarant’s state of mind and the statement describing it,” and it “le[aves] no room for the use of a statement describing a state of mind that existed at some early time.” . . . Thus, the statement “I felt scared yesterday” would not be admissible, but the statement “I feel scared now” would be, if relevant to a given case.
Dillon v. Commonwealth, 475 S.W.3d 1, 22-23 (Ky. 2015) (citations omitted).
Here, each of the statements admitted by the trial court were made by
Gray to law enforcement the day after the killing. Each related to what Gray’s
mental state or condition either before or at the time of his fight with Lopez the
day before. Thus, because the statements did not relate to a “then existing”
state of mind and condition, they also were not admissible under KRE 803(3).
Jones also contends that the admission of Gray’s statements to law
enforcement violated Jones’ rights under the Confrontation Clause. Again, we
The Confrontation Clause of the Sixth Amendment provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him.” 2 U.S. CONST. amend. VI. Admission of an
out-of-court testimonial statement violates this Clause unless the declarant is
unavailable and the defendant has had a “prior opportunity for cross-
examination.” 3 Crawford, 541 U.S. at 68. Here, Gray’s statements were made
2 This provision of the Federal Constitution applies to both federal and state
prosecutions. Crawford v. Washington, 541 U.S. 36, 42 (2004).
3 The out-of-court statement may of course separately be inadmissible hearsay.
Whether introduction of an out-of-court statement violates our hearsay rules however 17 to law enforcement during the course of the post-shooting investigation and
thus were testimonial. Id. at 52 (“Statements taken by police officers in the
course of interrogations are also testimonial under even a narrow standard.”).
In addition, Gray was also unavailable for trial, given that he faced charges
arising out of the same incident. For the same reason, Jones also had no prior
opportunity to cross-examine Gray regarding his statements to law
enforcement. Thus, the admission of Gray’s statements to law enforcement
also violated Jones’ rights under the Confrontation Clause.
While we find the trial court erred in admitting Gray’s statements to law
enforcement, we nonetheless also conclude the resulting error was harmless
and therefore does not warrant reversal. As to the non-constitutional error of
admitting those statements in violation of our hearsay rules, we ask whether
we can nonetheless say with fair assurance that the judgment was not
substantially swayed by that error. Dillon, 475 S.W.3d at 23 (“A non-
constitutional evidentiary error . . . is harmless if the reviewing court can say
with fair assurance that the judgment was not substantially swayed by the
error.”) (quoting Harris v. Commonwealth, 384 S.W.3d 117, 125 (Ky. 2012)). At
trial, there was no dispute that Jones shot Lopez. Indeed, he testified to having
done so, and asserted that he did so in defense of Gray. The task of the jury
was then to determine whether that conduct constituted criminal homicide and
is a separate and distinct consideration from whether its introduction would violate the Confrontation Clause. See Davis v. Washington, 547 U.S. 813, 821 (2006) (noting that out-of-court statements not within the scope of the Confrontation Clause nonetheless remain “subject to traditional limitations upon hearsay evidence.”). 18 if so, whether the appropriate conviction was for murder, first-degree
manslaughter under EED or with intent to cause serious physical injury, or
second-degree manslaughter resulting from wanton conduct. The matters
discussed in Gray’s statements to law enforcement—namely whether Gray
himself would or would not have shot Lopez—were irrelevant to that
determination. In other words, Gray’s statements to law enforcement simply
did not bear in any way on any findings the jury needed to make. Nor were the
statements gruesome, disturbing, or emotionally charged. As such, there is no
basis to conclude that the erroneous admission of those statements in any way
swayed the jury’s verdict.
As for the constitutional error of admitting Gray’s statements to law
enforcement in violation of Jones’ rights under the Confrontation Clause, we
must consider whether the error was “harmless beyond a reasonable doubt.”
Dillon, 475 S.W.3d at 15. An error is harmless beyond reasonable doubt “if
there is no ‘reasonable possibility that exclusion of the evidence complained of
might have contributed to the conviction.’” Commonwealth v. Armstrong, 556
S.W.3d 595, 604 (Ky. 2018) (quoting Talbott v. Commonwealth, 968 S.W.2d 76,
84 (Ky. 1998)). Again, because Gray’s statements to law enforcement were
wholly irrelevant to the factual determinations the jury needed to make, we
likewise conclude there is also no possibility that the error in admitting those
statements might have contributed to Jones’ conviction. Thus, the harmless
admission of those statements does not require reversal.
19 III. Technical Error In Allowing Lopez’s Live-In Girlfriend To Provide Victim Impact Testimony Was Harmless.
Jones next argues that the trial court erred by allowing Ebony Tolliver,
Lopez’s live-in girlfriend of four years and the mother of a child Lopez was
raising as his own, to provide victim impact testimony during the penalty phase
of the trial. Jones objected to Tolliver’s testimony because she did not fall
within the categories of persons permitted to provide victim impact testimony
under KRS 421.500(1)(c). 4 Because Jones objected to Tolliver’s testimony, his
argument is preserved. KRE 103(a)(1).
KRS 421.500 sets forth an enumerated list of relations permitted to
provide victim impact testimony during the penalty phase of a criminal trial
involving a deceased victim. Those persons are limited to a spouse, an adult
child, a parent, a sibling, and a grandparent. KRS 421.500(1)(c); see also KRS
532.055(2)(a)(7) (permitting the Commonwealth to present evidence during the
penalty phase of “[t]he impact of the crime upon the victim or victims, as
defined in KRS 421.500”). Here, because Tolliver was not married to Lopez,
she was not a “spouse.” Nor was she any of the other relations allowed to
provide victim impact testimony under the statute. As such, it was technically
error for the trial court to allow her to provide victim impact testimony. See
Elery v. Commonwealth, 368 S.W.3d 78, 98 (Ky. 2012) (finding that trial court’s
permitting of murder victim’s first cousin to testify was “technically error”
4 The Commonwealth also called Lopez’s mother to testify as a victim, without
objection. 20 because the first cousin “fell outside the statutorily mandated list of potential
witnesses.”).
However, as noted above, non-constitutional errors in the admission of
evidence are subject to harmless error review. Dillon, 475 S.W.3d at 23. We
have previously found that technical violations of KRS 421.500 are harmless if
the non-qualifying witness nonetheless had a sufficiently close relationship
with the victim to provide relevant testimony and did not testify in a manner
that would be unexpected from a qualifying relation listed in the statute. Hunt
v. Commonwealth, 304 S.W.3d 15, 48-49 (Ky. 2009) (finding harmless error
where there was “no doubt” a qualifying relation would have been as emotional
about the loss of the victim as the non-qualifying witness); see also Elery, 368
S.W.3d at 98 (finding no palpable error where “[i]t is clear from the testimony
given that [non-qualifying witness] knew the victim well, and there is little
doubt in this instance that a family member described in KRS 421.500 would
have delivered powerful testimony as well.”).
Here, Tolliver had lived with Lopez for at least four years, and he had
acted as a father to her child. There is little reason to believe she was unable
to provide relevant information to the jury about the impact of his death on
those close to him. Nor is there anything inherent in the lack of a formal
marriage between Tolliver and Lopez that would support a conclusion her
testimony would have differed from that of a lawfully married spouse. Put
differently, Tolliver was sufficiently close to Lopez to provide relevant victim
impact testimony, and her testimony would have been no more or less
21 impactful had she been lawfully married to him. As such, any technical error
in admitting Tolliver’s victim impact testimony was harmless and does not
warrant reversal.
IV. The Prosecutor’s Closing Argument Was Not Prosecutorial Misconduct.
Finally, Jones argues that he was unduly prejudiced by the following
statement made by the prosecutor during closing argument:
Prison sentences, obviously they’re meant to punish, they’re meant to protect the public. They’re also meant as deterrence for anybody out there with an assault rifle that might think about doing the same thing, executing a man who didn’t even see it coming. Let your verdict, the sentence you impose, serve all of those purposes: punishment, public protection, and deterrence. When the public sees that video 5 that you all have watched this week, they’re going to be as shocked as I’m sure you were. Let your sentence deter anyone from committing that same act, engaging in that same conduct. Show [Jones] the same mercy he showed [Lopez] when he splattered brains all over the ceiling of his car and impose a life sentence.
Jones now contends that by coupling a deterrence argument with a reference
to the public’s likely perception of evidence seen during the trial, the
prosecutor made an impermissible “send a message” argument. Jones
acknowledges he did not object at trial and that this allegation of error is
therefore unpreserved. We therefore review for palpable error. Rule of
Criminal Procedure (“RCr”) 10.26.
We first observe that the vast majority of the prosecutor’s statement
consisted solely of wholly permissible references to the punitive and deterrent
effect of criminal sentences. As we have previously noted,
5 The referenced video is of surveillance footage from near the crime scene.
22 [S]o long as the jury is well aware that it is sentencing the particular defendant before it—with his or her good points and bad—on the crime for which he or she has been convicted, there is no prejudice in the prosecutor commenting on the deterrent effect of that sentence. . . . [I]t is essentially illogical, at the sentencing phase, to say that the prosecutor cannot encourage the jury to impose a sentence that speaks to deterrence, as well as punishes the specific crime before it.
Cantrell v. Commonwealth, 288 S.W.3d 291, 299 (Ky. 2009). Thus, the
prosecutor did not engage in misconduct simply by referencing the deterrent
function of sentences in the closing argument.
That said, we have also noted nonetheless that
[a]ny effort by the prosecutor in his closing argument to shame jurors or attempt to put community pressure on jurors’ decisions is strictly prohibited. Prosecutors may not argue that a lighter sentence will ‘send a message’ to the community which will hold the jurors accountable or in a bad light.
Id. Here, however, the sole statement by the prosecutor that referred to the
community in any way was the reference to the community’s reaction upon
seeing video evidence introduced at trial. That mere statement alone in no way
suggested any shame or community pressure on the jurors to reach any
particular verdict. Rather, it merely referred to the nature of the video and that
the community, like the jurors, were likely to be shocked by it. Such a
comment does not rise to the level of an improper invocation of shame or
community pressure on the jury panel. Thus, because the prosecutor’s
statement consisted largely of permissible references to the punitive and
deterrent effect of a criminal sentence, and did not improperly shame or
pressure the jurors, it was not prosecutorial misconduct and does not
constitute error.
23 CONCLUSION
For the foregoing reasons, we affirm the judgment and sentence of the
Kenton Circuit Court.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Molly Mattingly Assistant Public Advocate
COUNSEL FOR APPELLEE:
Russell M. Coleman Attorney General of Kentucky
Courtney J. Hightower Assistant Attorney General