IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: FEBRUARY 20, 2025 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2024-SC-0021-MR
D’CORYA WHITE APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT V. HONORABLE MITCHELL PERRY, JUDGE NO. 22-CR-002427
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
D’Corya White was convicted of first-degree robbery, kidnapping, and
possession of a handgun by a convicted felon and was sentenced to twenty-
seven- and one-half years’ imprisonment. He now appeals his convictions and
sentence as a matter of right. Ky. Const. §§ 110, 115. After review we affirm.
I. FACTS AND PROCEDURAL BACKGROUND
On October 25, 2022, at 4:04 p.m. Keisha Deonarine parked her black
2020 Ford Escape in the parking lot of Simmons College of Kentucky in
Louisville. Keisha’s class did not start until 4:15 p.m., so she remained in her
car and checked emails on her cellphone. Approximately two minutes later,
Keisha opened the driver’s side door of her vehicle to get out and a man she did
not know came up to the driver’s side of the vehicle and pointed a handgun in her face. The man pushed the gun into Keisha’s ribs and told her to “get over.”
He then pushed her over the vehicle’s middle console and into the front
passenger seat. Keisha begged the man to let her go, attempted to appeal to
his humanity by telling him that she had children and a fiancé, and told him
he could have her purse if he let her go. He simply responded, “no.” Keisha
feared that the man was going to rape or kill her.
The man put the car in reverse and backed out of the parking spot. He
then struggled to put the rotary gearshift knob into drive. Keisha recognized
this as an opportunity to escape so she pushed as hard as she could against
the gun and then jumped out of the passenger side door. The man drove off
with her vehicle while Keisha ran into one of the college’s nearby buildings
screaming “He’s got a gun!” One of the college’s security guards and two staff
members heard her screaming and came to her aid; they called 911 at 4:10
p.m.
Keisha did not get a good look at the man and the description she
provided officers was that he was a black male with facial hair wearing a black
hooded jacket made of windbreaker like material. He had the hood of the
jacket pulled up and his hair protruded from under it. She likewise did not get
a good look at the gun the man used. She was certain that it had a black
handle and believed that it had silver somewhere on it, but she could not
remember where.
2 LMPD1 Officer Christen Branan2 was the first officer to respond to the
college at 4:11 p.m. Keisha was hysterical and it took Ofc. Branan several
minutes to calm her down. Once she did, Ofc. Branan learned that Keisha had
an application on her cellphone called FordPass that enabled her to track her
car’s location and that she also had an Apple AirTag on her car keys that
enabled her to track their location. The FordPass application indicated that
the vehicle was parked behind 2303 Magazine Street in Louisville and the
AirTag application indicated that the keys were at 2305 Magazine Street. Ofc.
Branan relayed this information to other on duty officers at 4:21 p.m.
LMPD Detective James Conley arrived at Simmons College at 4:18 p.m.
As Keisha’s description of the suspect was limited, Det. Conley directed
another detective to obtain the college’s surveillance footage of the incident.
From that footage, Det. Conley learned that the perpetrator was a black male of
average build wearing a black, hooded, long-sleeved jacket with a small white
logo on the left cuff; a white t-shirt with a large, colorful, square logo on the
front; light wash, lightly distressed blue jeans; and white tennis shoes. A still
photograph from the surveillance footage was disseminated to the officers
responding to Magazine Street.
1 Louisville Metro Police Department.
2 Ofc. Branan was a detective at the time of her testimony but was a patrol
officer at the time of this incident and investigation.
3 At 4:27 p.m., LMPD Officer Derrick Greene arrived at 2303 Magazine
Street, which is roughly ten minutes away from Simmons College. The
residence at 2303 Magazine Street has homes on either side of it that are mere
feet away. 2305 Magazine Street, where the AirTag indicated Keisha’s keys
were, is to the immediate left of 2303 Magazine Street. To its immediate right
is another residence, 2301, and to the immediate right of 2301 is a publicly
accessible alleyway. That alleyway connects to another alleyway that runs
behind the homes on Magazine Street. When Ofc. Greene arrived he did not
see Keisha’s vehicle in front of the residence, so he drove his cruiser through
the alleyway to the back of the residence. There, he saw a black 2020 Ford
Escape parked directly behind 2303 Magazine Street; the vehicle was backed in
such that the back license plate could not be seen from the alleyway. The
vehicle was later confirmed to be Keisha’s via the VIN number and license
plate. Ofc. Greene also observed a black male with black dread locks in the
backyard wearing a white shirt and a black jacket. When the man noticed Ofc.
Greene, he went into the residence. Ofc. Greene stayed with the vehicle while
other officers cleared the residence.
At 4:29 p.m., LMPD Sergeant Derek Hurley arrived at the residence along
with several other officers and ordered the occupants out over a bullhorn.
White, his adult-aged brother and sister, and his mother, Rochelle Wyatt,
exited the home without incident. White was a black male of average build
with black, shoulder length dread locks and facial hair. Ofc. Greene later
recognized White as the man he had seen when he first arrived at the
4 residence, although White was now wearing a royal blue long-sleeved shirt;
light wash, lightly distressed blue jeans; and white tennis shoes.
Sgt. Hurley’s body camera footage depicted him detaining White as soon
as he exited the residence; White told Sgt. Hurley that he “just woke up.” Sgt.
Hurley instructed White to sit on the stoop of the adjacent residence while the
officers ensured no one else was in the home. After the home was cleared, and
detectives were inside the home speaking to Rochelle, White called Hurley over
three different times to speak with him. The first time, White asked him what
was going on and the sergeant told him they were investigating a vehicle at the
residence that was not supposed to be there. White responded that people
parked cars back there all the time, that it was a “dangerous neighborhood,”
and that people did “dangerous stuff” there all day. The second and third
times White asked Sgt. Hurley what was going on and how long the officers
were going to be there.
Meanwhile, inside the residence, detectives obtained Rochelle’s consent
to search. White was not living in the home and did not have a room of his
own. In Rochelle’s bedroom the officers found a black Champion hooded jacket
made of a windbreaker-like material lying on Rochelle’s bed. The jacket had a
small, white, blue, and red Champion logo on the left cuff. They also found a
black .380 handgun between the mattress and box spring in Rochelle’s room;
areas around the barrel of the gun were worn down such that they were silver
rather than black. In the living room the officers found a white Nike t-shirt
with a large, colorful, square emblem on the front lying on the couch. In
5 addition, Rochelle stated that she had arrived home roughly ten minutes before
the officers got there and White had arrived around the same time. At that
time, he had on a black jacket and blue jeans. She did not know why the black
Ford Escape was behind her house, did not claim ownership of the gun, and
did not know the gun was underneath her mattress.
Keisha’s car was dusted for fingerprints and swabbed for DNA. No
useable fingerprints were recovered, but the DNA results were as follows. The
DNA profile found on the steering wheel was a mixture of at least three people
with at least one male contributor, and White could not be ruled out as a
possible contributor to the profile.3 The profile found on the gearshift was a
mix of at least three persons with at least one male contributor, and White
could not be ruled out as possible a contributor.4 The profile on the driver’s
seat control was a mix of at least two individuals with at least one male
contributor, and White could not be ruled out as a possible contributor.5 The
gun found in Rochelle’s bedroom was also swabbed for DNA. White was ruled
out as a contributor to the profiles on the gun’s grip and trigger, but the results
obtained from swabs of the gun’s slide, sights, buttons, and magazine were
inconclusive.
3 According to the DNA expert’s report, the profile obtained from the sample was
approximately 84,000 times more probable if the sample originated from White and three unknown persons than if it originated from four unknown persons. 4 The profile obtained was approximately 45,000 times more probable if the
sample originated from White and two unknown persons than if it originated from three unknown persons. 5 The profile obtained was approximately 5,700 times more probable if it
originated from White and one unknown person than two unknown persons.
6 At trial, White conceded that the offenses in question had occurred but
asserted that he was not the perpetrator. He argued that law enforcement’s
investigation was rushed and incomplete and highlighted that, even at trial,
Keisha was never able to positively identify White or the gun. White further
argued that no witness ever saw him either driving the vehicle or getting in or
out of it, that the items of clothing the officers found in Rochelle’s house were
mass-produced and common, that his fingerprints were not in the car, that his
DNA was not on the gun, and that there was no cell phone data demonstrating
he had been at Simmons College at the time of the carjacking.
The jury found White guilty of first-degree robbery, kidnapping, and
possession of a handgun by a convicted felon. He now appeals his convictions
and resulting sentence of twenty-seven- and one-half years to this Court.
Additional facts are discussed below as necessary.
II. ANALYSIS
A. The circuit court did not err by admitting still photographs from the surveillance footage.
White’s first argument on appeal is that the circuit court erred by
allowing the admission of what he characterizes as enhanced images captured
from the Simmons College surveillance footage.
At trial, the Commonwealth introduced two surveillance videos that
depicted the carjacking and the moments leading up to it from two different
angles. In one of those videos, White walked directly across the camera’s line
of view, allowing a relatively clear view of his clothing and race, but not his
face. Both videos were admitted into evidence and published to the jury during 7 Keisha’s testimony, as the Commonwealth’s first witness. Prior to the
introduction of the videos, Keisha testified that she had reviewed both videos
and that they were a true and accurate depiction of what occurred. The
defense explicitly stated it had no objection to the videos being introduced.
Det. Conley, the lead detective, was the Commonwealth’s final witness.
He testified that he and two other detectives, Lunte and Hammock, responded
to Simmons College after the 911 call came in. Upon arrival, Det. Conley was
informed by campus staff that the college had a video surveillance system, but
it was held offsite on Fourth Street. Det. Conley directed Det. Hammock to
leave and collect the footage within minutes of their arrival. The
Commonwealth played the surveillance footage a second time during Det.
Conley’s testimony, and he identified them as the videos that were collected by
Det. Hammock. Det. Conley confirmed that prior to his testimony he reviewed
some still photographs captured from the video surveillance footage that were
“close ups” from that footage. He stated that the significance of those
photographs was that they depicted the characteristics of the suspect’s
clothing and that Det. Hammock had distributed one of the still photographs to
the other officers who used it to help identify the suspect when they responded
to 2303 Magazine Street.
Before the Commonwealth moved to admit the photographs into
evidence, the defense preemptively objected and argued that the photographs
“are zoomed in enhancements and there’s not been any foundation from an
expert witness that this is reliable or how this would distort the images.” The
8 defense argued that the images’ probative value was therefore diminished and
that they were unduly prejudicial. The Commonwealth responded that the
photographs were still shots from a video that was already in evidence, that
“the video application itself zooms the video all the way in,” that the
photographs were used by Det. Conley during his investigation, and that they
are a fair and accurate representation of what is in the video. The circuit court
agreed and overruled the objection. The Commonwealth then entered five still
photographs into evidence depicting White as he approached Keisha’s vehicle.
White relies on this Court’s opinion in Gosser v. Commonwealth, 31
S.W.3d 897 (Ky. 2000); the federal circuit court opinions of U.S. v. Roberts, 84
F.4th 659 (6th Cir. 2023) and U.S. v. Seifert, 445 F.3d 1043 (8th Cir. 2006);
and the sister state opinions of Dolan v. State, 743 So. 2d 544 (Fla. Dist. Ct.
App. 1999), Nooner v. State, 907 S.W.2d 677 (Ark. 1995), and English v. State,
422 S.E.2d 924 (Ga. App. 1992), to argue that the trial court erred by
admitting “enhanced images” taken from the surveillance video without
testimony from a witness who could authenticate the images as a reliable and
trustworthy representation of the perpetrator. White contends that these
precedents required the individual who performed the “enhancements” to
testify regarding the specific details of the process of obtaining the photographs
and asks this Court to adopt the two-part test laid out by the Roberts Court
which held that “digitally enhanced still images [and]. . . enhanced video and
recordings are admissible if (1) the enhancements were properly authenticated
9 and (2) the analyst documented his steps when altering the source file.” 84
F.4th at 670.
As a threshold matter, we disagree with White’s assertion that the
photographs at issue were “enhanced” or that the source video was “altered” in
any way. None of the opinions relied upon by White convince this Court that
simply zooming in on a video and capturing a still image from it—a process any
juror would likely understand in this day and age—would result in an
“enhanced” or “altered” image requiring expert testimony that explains step-by-
step how the image came to be.
In Gosser, the only precedent White offers from Kentucky’s
jurisprudence, this Court addressed two different categories of evidence. 31
S.W.3d at 900. The first was “photographs of the crime scene in which the
police had planted colored flags and had made spray-painted marks to show
the locations of individuals and evidence at the time of the shooting” while the
second were computer-generated diagrams of the crime scene. Id. The
evidence at issue in Gosser is therefore clearly distinguishable from the
photographs in this case as the photographs of White are not an after the fact
recreation of the crime scene made by law enforcement either through a
photograph or a computer program. Rather, they are images pulled from
footage of the crimes as they occurred in real-time.
The two federal circuit cases cited by White likewise provide no support
for his contention that the photographs at issue were “enhanced.” Roberts
involved seven still photographs taken from video footage that a forensic audio-
10 video analyst “had applied minor filters to. . .to sharpen and brighten them
before enlarging certain regions in the images by 300%.” 84 F.4th at 666.
Similarly, Seifert concerned a surveillance video tape that was “digitally
enhanced” by Jack Hunter, an expert in electronic surveillance and video
analysis, as follows:
Because the original video is “time lapsed”-slower than normal speed-Hunter “real-timed” the enhanced copy. Hunter also explained that the original video is a “quad image,” with the screen divided into quarters to depict images from four cameras. Hunter enlarged the video from the relevant camera, discarding the output from the three irrelevant ones. Finally, because the original image is dark, Hunter brightened it, additionally brightening the suspect and the surrounding area more than the rest of the image.
445 F.3d at 1045.
The cases White relies upon from our sister states are also clearly
distinguishable. In Dolan, a forensic video analyst made the images from a
VHS tape “bigger, brighter, and better” via the following process:
The process began with identifying the best video recording machine for playback, playing the tape on that machine, and transferring the image electronically to computer as a digital image. . . Next, the most relevant frames of the video images were selected, and computer software used to add, enlarge, darken or lighten pixels in the now-digitized picture in order to clarify and focus the image. Once each image was computer-enhanced, still prints were made.
743 So.2d at 545. Nooner addressed a VHS tape from which still photographs
were made using several private firms as follows:
Rupert Robertson, a video specialist for Arkansas Power & Light Company, testified that he slowed the original videotape down by making an exact duplicate of it in the Betacam format and then freezing each frame for several seconds. Tom Burney of Jones Productions testified that he took a still frame from the duplicate videotape, transferred it to his computer, and softened the pixels 11 on the suspect's face to remove the graininess. . . Tillery of Color Masters testified that he took the computer disk prepared by Tom Burney and made still photographs. He multiplied the pixels per square inch to improve the contrast and adjusted the brightness in one of the still photographs. He also testified that he in no way altered the features in the photographs. Jeff Bishop from Camera Mart testified that he made still photographs from the original videotape. He only adjusted the brightness in the photographs.
907 S.W.2d at 686. Finally, in English, certain frames from a videotape were
“subjected to computer enhancement” by a technician. 422 S.E.2d at 925.
In this case, the video of White was not enhanced or altered in any way
to obtain the photographs. Indeed, from this Court’s review of the evidence,
the quality of the surveillance footage greatly exceeds the quality of the still
photographs, which are blurrier due to the effect of “zooming in.” Meaning the
jury would have gotten a much clearer look at the clothes the suspect in the
footage wore via the unobjected to surveillance video than the photographs.
The Roberts standard for admissibility accordingly has no application in this
case.
Nevertheless, that still leaves us with the question of whether the
photographs were otherwise properly authenticated given that neither Det.
Hammock nor the Simmons College employee that provided the video and still
photographs testified at trial. This Court reviews a trial court’s finding of
authentication for abuse of discretion. Johnson v. Commonwealth, 134 S.W.3d
563, 566 (Ky. 2004). We will accordingly affirm the trial court’s ruling unless
we conclude that it was “arbitrary, unreasonable, unfair, or unsupported by
sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945
(Ky.1999). As always, the touchstone for authentication is KRE 901(a) which 12 states: “The requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence to support a finding that the
matter in question is that its proponent claims.”
This rule treats preliminary questions of authentication and identification as matters of conditional relevance according to the standards of [FRE]6 104(b). The condition of fact which must be fulfilled by every offer of real proof is whether the evidence is what
its proponent claims. The proponent's burden of authentication is slight, which requires only a prima facie showing of authenticity to the trial court.
Johnson, 134 S.W.3d at 566 (internal citations and quotation marks omitted).
KRE 901 goes on to say that “the following are examples of authentication or
identification conforming with the requirements of this rule: Testimony of a
witness with knowledge. Testimony that a matter is what it is claimed to be.”
KRE 901(b)(1).
Here, the circuit court did not abuse its discretion by determining that
the still photographs were properly authenticated through Det. Conley. The
exhibits in question were zoomed in still photographs from a video that had
already been authenticated, admitted into evidence, and played twice. The
photographs themselves clearly demonstrate that they were taken from the
surveillance video. Moreover, Det. Conley had personal knowledge of what the
photographs were and what they depicted because they were the same
photographs that were used in the investigation for which he was the lead
detective.
6 Federal Rules of Evidence.
13 Even assuming for the sake of argument that the circuit court did err,
the error would have been harmless. See RCr7 9.24. The photographs’ sole
evidentiary value was to demonstrate what the suspect was wearing at the time
of the carjacking and, again, that information had already been established by
the admission of the surveillance video. White’s substantial rights would
therefore not have been affected by the admission of the photographs and we
affirm.
B. The circuit court did not err by allowing the jury to see body camera footage of White in handcuffs.
White next asserts that the circuit court violated his right to a fair trial
by allowing the jury to see four clips of body camera footage depicting White in
handcuffs while he was detained. U.S. Const. amend. XIV; Ky. Const. § 11.
In relevant part, the Commonwealth played four different clips from Sgt.
Hurley’s body camera footage. The first clip depicted officers ordering the
occupants of 2303 Magazine Street out of the residence upon their arrival and
showed Sgt. Hurley placing White in handcuffs, telling him that he was not
under arrest, and telling him that he was being detained. By this Court’s
count, Sgt. Hurley told White that he was not under arrest five different times
in the first clip. The footage then showed Sgt. Hurley placing White’s brother in
cuffs, telling him that he was being detained, and telling him that he was not
under arrest at least four times.
7 Kentucky Rule of Criminal Procedure.
14 The subsequent three clips captured each of the three times White called
Sgt. Hurley over to ask him what was going on. Each time, White is shown
with his hands still cuffed behind his back. During the first clip Sgt. Hurley
explained to White that they placed him in cuffs because they did not know if
he was involved in the carjacking or not and the officer again told White that he
is not under arrest. During the second clip, Sgt. Hurley told White that the
officers intended to leave if the detectives concluded no one in the house was
involved.
At trial, defense counsel objected as soon as the portion of the first clip
that showed White being handcuffed upon exiting the residence was played.
Counsel argued that showing White handcuffed was unduly prejudicial. The
Commonwealth responded that the officer clearly says in the footage that White
is not under arrest and that he was being detained. The Commonwealth
further highlighted that White was not being singled out by the police because
his brother was also placed in cuffs and told he was not under arrest. The
circuit court agreed that the footage was not unduly prejudicial and overruled
the objection with instructions to the Commonwealth to ask Sgt. Hurley why
White and his brother were placed in handcuffs. Defense counsel did not
request an admonition to the jury and the circuit court did not provide one sua
sponte. When questioning resumed, the Commonwealth asked Sgt. Hurley why
White and his brother were placed in handcuffs if they were not under arrest.
The officer responded that the crime they were investigating was an armed
carjacking and further explained that “when there’s a possible gun in play and
15 we don’t know who the suspect may be we want to detain them so that
everyone else is safe.” He agreed with the Commonwealth’s characterization of
the practice as “an officer safety issue.”
Before this Court, White argues under Deal v. Commonwealth, 607
S.W.3d 652 (Ky. 2020) that playing the clips of Sgt. Hurley’s body camera
footage of him in handcuffs violated his constitutional right to a fair trial. This
Court reviews a trial court’s ruling on the admission of evidence for abuse of
discretion. See, e.g., Meece v. Commonwealth, 348 S.W.3d 627, 645 (Ky. 2011).
The test for abuse of discretion asks whether the trial court’s ruling was
“arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”
English, 993 S.W.2d at 945. Ordinarily, an error in ruling on the admissibility
of evidence is subject to harmless error review under RCr 9.24 and therefore
may not be a basis to reverse or vacate a conviction unless this Court cannot
“say with fair assurance that the judgment was not substantially swayed by the
error.” Ordway v. Commonwealth, 391 S.W.3d 762, 774 (Ky. 2013); RCr 9.24.
But when the evidentiary ruling is found to be erroneous because it violated a defendant's constitutional rights, the error is still subject to harmless error review but the error may be used as basis to reverse or vacate a judgment if we cannot say the error was harmless beyond a reasonable doubt.
Deal, 607 S.W.3d at 658. The test for whether an error was harmless beyond a
reasonable doubt “is not simply whether there was sufficient evidence to
support the conviction aside from the improper evidence.” Staples v.
Commonwealth, 454 S.W.3d 803, 827 (Ky. 2014). Rather, it is “whether the
improper evidence was of a weight, was of a striking enough nature, or played a
16 prominent enough role in the Commonwealth's case to raise a reasonable
possibility that it contributed to the conviction.” Id.
In Deal, the Commonwealth was permitted to play at trial the entirety of
a thirty-five-minute video of the defendant being questioned, with counsel
present, by an Assistant Commonwealth’s Attorney and the lead detective. 607
S.W.3d at 656. The interview occurred after the defendant had been arrested
and took place at the jail where the defendant was being housed prior to trial.
Id. Throughout the interview, the defendant was handcuffed and wearing an
orange inmate jumpsuit. Id.
The Deal Court first engaged with a thorough discussion of both our own
jurisprudence8 and that of the United States Supreme Court on the issue of a
defendant appearing before a jury in “the badges of custody,” i.e., prison or jail
attire, handcuffs, leg shackles, and the like. Id. at 658-63. This Court found
fault with Kentucky’s existing jurisprudence on the subject as it did not
sufficiently engage with discussion of on point United State Supreme Court
precedents such as Estelle v. Williams, 425 U.S. 501 (1976), Holbrook v. Flynn,
475 U.S. 560 (1986), and Deck v. Missouri, 544 U.S. 622 (2005). The Deal
Court accordingly laid out for the first time the required analysis when “a
8 Specifically, Estep v. Commonwealth, 663 S.W.2d 213, 216 (Ky. 1983) (holding
the introduction of a photograph of the defendant in handcuffs at the time of his arrest was not reversible error); Shegog v. Commonwealth, 142 S.W.3d 101, 109 (Ky. 2004) (holding that several potential jurors inadvertently seeing the defendant in handcuffs while being transported from the jail to the courthouse did not result in prejudice to the defendant); and Bryan v. Commonwealth, 2015-SC-000467-MR, 2017 WL 1102825 (Ky. Mar. 23, 2017) (holding that playing a police interview of defendant wearing a jumpsuit and handcuffs was not an abuse of discretion and in the alternative was harmless error). Deal, 607 S.W.3d at 661-63.
17 defendant challenges a trial event claiming the event undermines the jury’s
ability to decide the case fairly.” 607 S.W.3d at 663. The analysis was stated
as follows:
when a defendant objects to a specific trial event, the trial court, in the exercise of its discretion, has a responsibility under the Fourteenth Amendment to consider whether the practice is “inherently prejudicial.” . . . [A] practice is generally found to be “inherently prejudicial” when it threatens the fairness of the factfinding process by undermining the defendant's right to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial.
In carrying out this responsibility, the trial court must engage in a thorough analysis and “closely” consider any factors relevant in the
specific case, including: the likelihood that the challenged event could be interpreted by the jury as indicating that the defendant has already been adjudged to be particularly dangerous or culpable; the reasoning behind other courts’ decisions when faced with similar cases; and the likelihood that the event would normally operate to the disadvantage only to those defendants who are unable to post bond to be released pending trial.
Id. at 663–64 (internal footnotes and quotation marks omitted). If the trial
court finds that that the challenged event is inherently prejudicial or is
prejudicial based on the particular circumstances of the case, it may only
“allow the proposed event if it finds that the event is nonetheless justified by
some identifiable and essential state interest.”9 Id. at 664. In cases where a
9 The Deal Court expounded that to determine whether the challenged event is
justified by a state interest, the trial court may consider factors such as: “(1) the merits of the asserted state interest; (2) the potential threat posed by the challenged event to the defendant's constitutional rights; and (3) the availability of alternatives that could minimize the risk posed to the defendant's rights while still acting to serve the asserted state interest.” Id. at 664-665 (internal footnotes omitted).
18 trial event is inherently prejudicial and does not serve an essential state
interest prejudice will be presumed for the purposes of appellate review and a
defendant is entitled to reversal of his or her conviction unless the
Commonwealth can show beyond a reasonable doubt that the defendant was
not prejudiced by the challenged event. Id. at 665.
The Court went on to discuss that such a standard had been applied in
cases where a jury viewed the defendant in “badges of custody” either in person
or in a photograph, but neither it nor the United States Supreme Court had
considered a videotaped presentation of the same. Id. at 666. It relied upon a
Tennessee Supreme Court opinion that had addressed the issue, State v.
Taylor, 240 S.W.3d 789 (Tenn. 2007), for guidance. 607 S.W.3d at 666.
Taylor addressed whether the defendant’s constitutional rights were
violated by the admission of a video of the defendant in custody and dressed in
jail clothing that was recorded while the State was working with a jail
informant. Id. The Tennessee Supreme Court held that “the trial court did not
err in admitting the video because it did not result in a violation of the
defendant’s constitutional rights.” Id. The Taylor Court found it significant
that the defendant was not tried dressed in jail attire; the video depicting the
defendant in jail attire was brief; the video was not the source of the potential
prejudice arising from the jury discovering that the defendant was in jail, as
the informant had already provided testimony to that effect; and because the
trial took place over three days while the video was only seven minutes long.
Id.
19 The Deal Court explicitly stated it did not disagree with the Taylor
Court’s conclusion that “admitting evidence depicting a defendant in jail
custody is not ‘inherently prejudicial’ under all circumstances.” Id. at 667.
Nevertheless, this Court went on to state that
[c]ommon sense suggests that the impact of allowing a brief videotaped presentation to the jury depicting the defendant in jail attire or shackles is not as damaging as requiring a defendant to appear that way in person before the jury. But we remain convinced that videos of the defendant “bearing badges of custody” pose a threat to the defendant's right to a fair trial because it tends to suggest to the jury that some official determination has already been made that the defendant needs to be restrained and separated from society. This is especially true when, as in Deal's case, the jury was able to see and hear testimony to the effect that the jail interview was recorded months after the defendant was arrested on the underlying charges.
Id. It then noted that the facts of Taylor were distinguishable because unlike
the defendant in Taylor, Deal was wearing both jail clothing and shackles in
the video, the video was thirty-five minutes long as opposed to seven, and the
video was recorded two months after Deal was arrested as demonstrated by the
video’s prominent time stamp. Id. at 667-68. The Court concluded by holding
that “while not ‘inherently prejudicial,’ the video prejudiced Deal” based on the
specific facts of the case, and the trial court failed to determine whether the
prejudicial nature of the video was justified by an essential state interest or if
the prejudice could be minimized by an available alternative. Id. at 669
(emphasis added). And, as the Commonwealth failed to prove the error was
harmless beyond a reasonable doubt, the Court reversed Deal’s convictions
and remanded for a new trial. Id. at 668-69.
20 Based on the foregoing, we hold that the circuit court did not abuse its
discretion by admitting the body camera clips of White and that his
constitutional right to a fair trial was not violated. As a threshold matter, it
was made abundantly clear through both the footage itself and Sgt. Hurley’s
testimony that White, although handcuffed, was not in police custody. Sgt.
Hurley clearly stated to White at least six times across the four clips that he
was not under arrest and that he was only being detained while the officers
investigated. In that vein, in both the clips and the testimony elicited at the
direction of the circuit court, Sgt. Hurley explained that the only reason White
was being detained was that the officers did not know if he was involved in the
carjacking or not. Sgt. Hurley’s interactions with White throughout the clips
was calm, professional, and cordial. There was accordingly no basis to
conclude that it had been suggested to the jury that an official determination
had been made that White was guilty of the alleged crimes or that he was
otherwise dangerous and needed to be restrained and separated from society.
Id. at 667.
In addition, and as argued before the circuit court, White was not
“singled out” by the officers for detainment. In the footage both he and his
brother were handcuffed, and his brother was likewise told numerous times
that he was not under arrest. Finally, the clips constituted mere minutes of
evidence within the context of a four-day trial. In the first clip, approximately
one-minute passes between Sgt. Hurley handcuffing White and Sgt. Hurley
walking away from him after he sits him down on the stoop of the house next
21 door; the second clip is a total of fifty-four seconds; the third clip is a total of
twenty-six seconds; and the final clip is a total of twenty-one seconds.
Accordingly, as the trial court’s finding that the body camera footage was
neither inherently prejudicial nor prejudicial under the particular facts of the
case, Deal, 607 S.W.3d at 664, was not “arbitrary, unreasonable, unfair, or
unsupported by sound legal principles[,]” English, 993 S.W.2d at 945, we
C. White waived his ability to argue that KRS10 509.050, the kidnapping exemption statute, precluded him from being convicted of kidnapping.
For his final assertion of error, White claims that KRS 509.050 should
have prevented him from being prosecuted for the offense of kidnapping. That
statute, colloquially known as the kidnapping exemption statute, directs that
“A person may not be convicted of . . . kidnapping” when each prong of the
following three-part test is satisfied:
First, the underlying criminal purpose must be the commission of a crime defined outside of KRS [Chapter] 509. Second, the interference with the victim's liberty must have occurred immediately with or incidental to the commission of the underlying intended crime. Third, the interference with the victim's liberty must not exceed that which is ordinarily incident to the commission of the underlying crime.
Stinnett v. Commonwealth, 364 S.W.3d 70, 76–77 (Ky. 2011) (quoting
Hatfield v. Commonwealth, 250 S.W.3d 590, 599 (Ky. 2008)); KRS 509.050.
White concedes this argument was not preserved for this Court’s review but
requests palpable error review pursuant to RCr 10.26. We decline to do so.
10 Kentucky Revised Statute.
22 For decades, this Court has held steadfast to the tenet that if a defendant
requests a jury instruction before the trial court, he or she may not complain
on appeal that the instruction was given in error. See, e.g., Rudd v.
Commonwealth, 584 S.W.3d 742, 746 (Ky. 2019) (holding “Rudd affirmatively
proposed the instruction that contained the very defect he now opposes, and
thus, invited the error. . . Invited errors amount to a waiver and are not subject
to appellate review.”) (cleaned up); St. Clair v. Commonwealth, 451 S.W.3d 597,
642 (Ky. 2014) (holding “St. Clair cannot claim he was prejudiced by the giving
of an instruction that he requested.”); Webster v. Commonwealth, 438 S.W.3d
321, 324 (Ky. 2014) (holding “[W]hen an appellant affirmatively proposes an
instruction that contains the very defect he now opposes, that appellant invites
error. Invited errors amount to a waiver and are not subject to appellate
review.”) (cleaned up); Thornton v. Commonwealth, 421 S.W.3d 372, 376-77
(Ky. 2013) (holding “[I]f the instruction given was actually erroneous, Appellant
not only failed to preserve the error by making the concern known to the trial
court, he invited the error by affirmatively proposing an instruction that
contains the very defect he now opposes.”); Commonwealth v. Southwood, 623
S.W.2d 897, 897-98 (Ky. 1981) (holding “It is still the law that an objection
must be made in order to preserve an error in the instructions.”); Mason v.
Commonwealth, 565 S.W.2d 140, 140 (Ky. 1978) (holding “[T]he insanity
instruction offered by the defense was identical to that given by the trial court.
Having requested the instruction Mason is now precluded from complaining of
its content.”).
23 Here, White’s requested jury instructions included an instruction for
kidnapping that was substantially similar to the instruction ultimately given to
the jury.11 See Webster, 438 S.W.3d at 324. He is accordingly precluded from
arguing on appeal that the circuit court erred by instructing the jury on
kidnapping pursuant to KRS 509.050.
III. CONCLUSION
Based on the foregoing, we affirm.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Christopher Barrett Thurman Assistant Public Advocate
COUNSEL FOR APPELLEE:
Russell M. Coleman Attorney General of Kentucky
Stephanie Lynne McKeehan Assistant Attorney General
11 White’s requested instruction proceeded under the theory that White’s intent
in unlawfully restraining Keisha was to either “inflict bodily injury or to terrorize her.” See KRS 509.040(1)(c). The jury instruction the circuit court provided proceeded under the theory that White’s purpose in unlawfully restraining Keisha was “[t]o accomplish or advance the commission of Robbery in the First Degree” or “to terrorize Keisha[.]” See KRS 509.040(1)(b),(c).