IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
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Supreme Court of Kentucky 2023-SC-0125-MR
FESS POLLY APPELLANT
ON APPEAL FROM HARLAN CIRCUIT COURT V. HONORABLE KENT HENDRICKSON, JUDGE NO. 21-CR-00034
COMMONWEALTH OF KENTUCKY APPELLEE
AND
2023-SC-0135-MR
DERRICK POLLY APPELLANT
ON APPEAL FROM HARLAN CIRCUIT COURT V. HONORABLE KENT HENDRICKSON, JUDGE NO. 21-CR-00033
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Fess Polly and Derrick Polly 1 are brothers and were jointly tried and
convicted by a Harlan County jury of murder by complicity. Each received a
1 For clarity, we will refer to Fess and Derrick by their first names. total sentence of twenty years’ imprisonment and separately appeal to this
Court as a matter of right. 2 Because the underlying facts and legal issues
overlap, we have elected to address these appeals together in a single opinion.
Discerning no reversible error in either appeal, we affirm the judgment of the
Harlan Circuit Court.
FACTS AND PROCEDURAL HISTORY
Destiny Stamper shot and killed Wilmer Perez upon Fess’s threat to her
own life. Derrick was present at the scene and the extent of his involvement in
the murder was disputed at trial. The circumstances surrounding the murder
are obscure: Perez’s body was never recovered, and the police did not discover
any physical evidence.
Perez was last seen in Cumberland, Kentucky, on April 1, 2020. The
next day, Perez’s brothers reported him missing after he did not return home
from work at a local restaurant. Sergeant Tyler Hensley 3 began to investigate
and received information that he should speak with Christopher 4, a juvenile,
who was dating the daughter of Crystal Eads. Eads is the sister of Amanda
Whitehead who was in a relationship with Derrick at the time. Sgt. Hensley
also learned Christopher was friends with Perez and that an incident occurred
between them at Perez’s house on March 31, 2020, the day before his
disappearance.
2 KY. CONST. § 110(2)(B).
3 By the time of trial, Sgt. Hensley had been promoted to the rank of Chief.
4 Because this individual is a minor, we refer to him by a pseudonym.
2 Sgt. Hensley went to look for Christopher at Eads’s residence. Eads told
him that Christopher was at her father’s trailer. When he thereafter arrived at
that location, Sgt. Hensley could not locate Christopher, but observed Derrick
and Whitehead taking items from the trailer and placing them into a car.
Believing this to be a family matter, Sgt. Hensley dismissed the possibility of
any possible criminal activity. He then returned to Eads’s residence where he
located and spoke with Christopher.
During this conversation, Christopher downplayed his relationship with
Perez as a mere acquaintanceship. Sgt. Hensley then informed Christopher
that Perez was missing. When asked if he had seen Perez, the color left
Christopher’s face and his jaw began shaking uncontrollably. After a few
seconds, Christopher regained his composure and said he did not know
anything about Perez’s disappearance.
Sgt. Hensley returned to Eads’s residence later that night and discovered
Derrick and Whitehead inside. Whitehead gave Sgt. Hensley permission to
speak with her daughter the next day. At that meeting, Whitehead’s daughter
mentioned Stamper’s name.
On April 7, 2020, Sgt. Hensley returned to Eads’s residence where he
spoke with Derrick, Whitehead, Whitehead’s daughter, Christopher, and Eads
at the same time. Whitehead showed Sgt. Hensley some messages from social
media to establish their whereabouts on the night of Perez’s disappearance.
Sgt. Hensley noticed certain messages had been deleted and later obtained a
warrant to conduct a thorough search of Derrick’s social media accounts.
3 Subsequently, Sgt. Hensley went to the residence of Brittany Williams to
locate Stamper. Williams told Sgt. Hensley that Stamper lived in an apartment
downstairs. Stamper provided Sgt. Hensley with what he believed was helpful
information before he left to continue his investigation. Some time later that
evening while on traffic patrol, Sgt. Hensley observed Williams driving
erratically as if she was trying to get his attention. Sgt. Hensley then followed
Williams into a nearby parking lot.
Before Sgt. Hensley approached her vehicle, Williams immediately got out
and fell to the ground crying in terror. She told Sgt. Hensley he had to “get”
Stamper because “she killed that boy.” Sgt. Hensley took Williams to a quiet
place to talk. Based on the information provided, Sgt. Hensley went to the
residence of Alex Jenkins and discovered a .22 caliber handgun, which Jenkins
admitted having stolen from Stamper.
On April 9, 2020, Sgt. Hensley spoke with Stamper for the second time
and pressed her for information. Stamper denied knowing anything about
Perez and claimed she was in Lexington at the time of his disappearance. The
next day, Sgt. Hensley conducted a formal interview with Stamper. Stamper
maintained that she was not involved in Perez’s disappearance. While Sgt.
Hensley believed Stamper did a “good job” establishing her whereabouts up to
March 31, her story began to “melt” in relation to the timeline thereafter. Sgt.
Hensley concluded that Stamper was not being truthful in the interview.
4 After the interview, Angie Burke 5 contacted police to report that Stamper
had shot and killed someone. Realizing that Stamper was comfortable
speaking with Burke, Sgt. Hensley suggested that Burke record a conversation
with Stamper. Burke would later act on this suggestion and obtain a recording
of Stamper.
In the meantime, after learning Fess was in a relationship with Stamper,
Sgt. Hensley returned to Eads’s residence to speak with him. Fess voluntarily
accompanied Sgt. Hensley to another location where he showed Sgt. Hensley
some messages indicating he was not with Stamper on April 1 and 2. Sgt.
Hensley stated these messages led him to believe Stamper was not present at
the time of Perez’s initial disappearance.
On April 12, 2020, Burke played Sgt. Hensley a recording of Stamper,
which he characterized as a confession. Then, at a subsequent interview on
April 15, 2020, Stamper confessed to shooting and killing Perez. She told Sgt.
Hensley in late March 2020, she traveled to Lexington, Kentucky, with a friend
to do some “running around.” At some point, she went to stay with another
individual. Stamper proceeded to steal that individual’s car and drove back to
Harlan County to visit Fess a couple of days later. Upon her return, Stamper
went to Eads’s residence where Fess and Derrick were staying.
Fess declined Stamper’s offer to use drugs and told her that he needed
her to give him a ride “to take care of something.” Stamper drove Fess in the
5 Burke is a close friend of Williams and was referred to as Stamper’s aunt, but
it is unclear if she is actually a family relation.
5 stolen car while Derrick and Whitehead traveled ahead of them in Derrick’s
truck. After a journey of only a few minutes, the four arrived at an old mining
site called the Blue Gates that was frequently used as a gathering place. As
Stamper exited the vehicle, she immediately noticed Perez on the ground. He
was badly beaten and bloodied. She asked Fess what was going on to which he
replied he would take care of it.
Fess began to kick Perez while Derrick swung a machete nearby. The
two brothers derided and mocked Perez as Stamper protested to no avail.
Whitehead stayed beside the vehicles. Fess sent Stamper back to the car to
retrieve his gun. He had already taken Stamper’s .22 handgun when they
arrived at the Blue Gates. When Stamper returned with Fess’s .40 caliber gun,
he pointed the .22 at her and commanded her to shoot Perez. Stamper said
she would not shoot him for no reason to which Fess replied that he would
shoot her if she refused.
Stamper closed her eyes and fired two shots. She did not see whether
Perez was struck but heard him groan which ended after a minute. Stamper
then took Whitehead back to Eads’s residence while Fess and Derrick remained
at the Blue Gates. Some time later, Fess explained to Stamper that the
boyfriends of Whitehead’s daughters had robbed Perez and when Perez came to
recover his property things “just got out of hand.”
In May 2020, Stamper changed her story and told Sgt. Hensley that
Perez had been stabbed to death in the bathroom of a trailer. Sgt. Hensley
searched the trailer but did not find any evidence consistent with this scenario.
6 During his investigation, Sgt. Hensley did not discover any physical evidence
connected with the death of Perez whose body was never recovered. However,
the search of Derrick’s social media account revealed he sent a message near
the time of Perez’s disappearance pertaining to two possible robberies.
Additionally, Derrick sent a message on April 10, 2020, stating, “the polic3
[police] is investigating me over a murder. I may need u to let th3m [them]
know we was with u [you] in that house.” 6 Sgt. Hensley testified he was struck
by the use of the word “murder” because, at that time, Derrick could have only
known about a missing person investigation.
On March 17, 2021, Fess, Derrick, and Stamper were each indicted for
murder. Additionally, Fess and Derrick were each charged with tampering with
physical evidence and being first-degree persistent felony offenders (PFO). The
murder charge against Stamper was dismissed after she reached an agreement
with the Commonwealth to testify “consistently with her previous statements to
the police, including that she did, in fact, shoot Wilmer Perez twice in the
chest, and that she did so only because Fess Polly was holding a gun to her
head.” 7 Stamper’s trial testimony was consistent with the version of events she
provided Sgt. Hensley at the interview of April 15, 2020.
6 The record does not reveal to whom this message was sent.
7 We note duress does not constitute a defense to intentional homicide under
Kentucky law. Kentucky Revised Statutes (KRS) 501.090(1). Similarly, because intentional homicide cannot be considered a lesser evil, the defense of choice of evils is not available as a justification for intentional murder. KRS 503.030(1).
7 Fess and Derrick were tried together. The Commonwealth called Sgt.
Hensley and Stamper as witnesses. Additionally, James Randall Nantz, a
convicted felon with eight pending felony charges, testified on behalf of the
Commonwealth and corroborated Stamper’s testimony. Nantz claimed Fess
told him the details of the crime while they shared a jail cell over an eight-
month period. Perez’s brothers also testified they had not seen or heard from
Perez since his disappearance and that Perez had felt threatened by Fess and
Derrick.
Fess and Derrick called Derrick Moore, the Chief Deputy Jailer, who
testified that Nantz was “hard to house” and had to be moved frequently
because of conflicts with other inmates as he was a known informant among
the jail population dating back to 2007. Moore also stated it was possible for
inmates to read each other’s court papers. Additionally, the defense called
Kenneth Layne, a retired Sergeant with the Kentucky State Police, to testify
regarding the assistance he provided to Sgt. Hensley in the investigation. To
confirm the lack of physical evidence, Fess and Derrick also called Meghan
Mae, a forensic scientist employed by the Kentucky State Police.
At the conclusion of the Commonwealth’s case-in-chief, the trial court
granted a directed verdict in favor of Fess and Derrick on the charge of
tampering with physical evidence. Following trial, the jury found Fess and
Derrick guilty of murder. The Commonwealth declined to present evidence on
the PFO charges during the sentencing phase because a murder conviction is
8 not subject to enhancement. 8 The jury recommended a total sentence of
twenty years’ imprisonment, which the trial court ultimately accepted. These
appeals followed.
LAW AND ANALYSIS
1. Trial court properly denied a directed verdict on murder charges.
Fess and Derrick first argue the trial court erred by denying their
motions for directed verdict on the charge of murder by complicity. We
disagree.
The denial of a motion for directed verdict will not be reversed unless the
appellate court determines “it would be clearly unreasonable for a jury to find
guilt.” Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). When
confronted with a motion for directed verdict, the trial court must assume the
truth of the Commonwealth’s evidence and “draw all fair and reasonable
inferences from the evidence in favor of the Commonwealth.” Id. A conviction
must be based on “evidence of substance, and the trial court is expressly
authorized to direct a verdict for the defendant if the prosecution produces no
more than a mere scintilla of evidence.” Id. at 188. Ultimately, the directed
verdict standard depends on “the statutes creating the offense[,]” and “is not
controlled by the law as described in the jury instructions[.]” Acosta v.
8 “Murder is a capital offense and a murder conviction is not subject to PFO
enhancement.” Berry v. Commonwealth, 782 S.W.2d 625, 627 (Ky. 1990), overruled on other grounds by Chestnut v. Commonwealth, 250 S.W.3d 288 (Ky. 2008).
9 Commonwealth, 391 S.W.3d 809, 816 (Ky. 2013), overruled on other grounds
by Ray v. Commonwealth, 611 S.W.3d 250 (Ky. 2020).
KRS 507.020 defines murder in pertinent part as follows:
(1) A person is guilty of murder when:
(a) With intent to cause the death of another person, he causes the death of such person or of a third person; except that in any prosecution a person shall not be guilty under this subsection if he acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be. However, nothing contained in this section shall constitute a defense to a prosecution for or preclude a conviction of manslaughter in the first degree or any other crime.
Additionally, “[a] finding of guilt by complicity requires: ‘(1) proof of commission
of an offense by another person and (2) proof of the defendant's participation in
commission of that offense.’” Stieritz v. Commonwealth, 671 S.W.3d 353, 360
(Ky. 2023) (quoting Parks v. Commonwealth, 192 S.W.3d 318, 327 (Ky. 2006)).
We have recognized two distinct theories of accomplice liability under KRS
502.020:
The primary distinction between these two statutory theories of accomplice liability is that a person can be guilty of “complicity to the act” under KRS 502.020(1) only if he/she possesses the intent that the principal actor commit the criminal act. However, a person can be guilty of “complicity to the result” under KRS 502.020(2) without the intent that the principal's act cause the criminal result, but with a state of mind which equates with “the kind of culpability with respect to the result that is sufficient for the commission of the offense,” whether intent, recklessness, wantonness, or aggravated wantonness . . . . The most common examples of offenses having a prohibited result are homicide, with the death of another as the prohibited result.
10 Tharp v. Commonwealth, 40 S.W.3d 356, 360-61 (Ky. 2000). “Complicit
conduct may be proven through either the existence of a basic conspiracy, or
aid and counsel, or failing to make a proper effort to prevent the commission of
an offense when the defendant has a legal duty to do so.” Stieritz, 671 S.W.3d
at 360.
Fess and Derrick both argue entitlement to a directed verdict based on
the lack of any physical evidence connecting them to the crime, e.g., neither
the body nor the murder weapon was recovered. Additionally, they argue the
testimony of Stamper and Nantz was so obviously biased and improbable as to
have been inherently unbelievable and altogether lacking in probative value.
In every criminal prosecution, the Commonwealth bears the burden of
proving the corpus delicti, which is defined as “the body of the offense, the
substance of the crime.” Warmke v. Commonwealth, 297 Ky. 649, 180 S.W.2d
872, 873 (1944). Specific to the offense of homicide, “[p]roof of the corpus
delicti . . . involves two principal facts, namely, that the person is dead and
that he died as a result of the injury alleged to have been received.” Id. In
other words, “there must be proof of a death and proof that such death was
caused by the criminal agency of the accused.” Id.
Although we have consistently recognized “the typically onerous burden
of proving the corpus delicti beyond a reasonable doubt,” Carpenter v.
Commonwealth, 681 S.W.3d 36, 43 (Ky. 2023), “the law does not subscribe to
the rigid formula that the body must be found or seen after death.” Warmke,
11 180 S.W.2d at 873. Indeed, a murder conviction may be supported entirely by
circumstantial evidence. Id. For example, death may be proven
by proof of criminal violence adequate to produce death and which accounts for the disappearance of the body. In short, the body must be found or there must be proof of death which the law deems to be equivalent to direct evidence that it was found.
Id. (internal quotation marks and citation omitted).
Here, Stamper’s testimony placed Fess and Derrick at the scene of the
crime. She admitted she shot Perez at the behest of Fess and stated she did
not hear Perez make any sound after his groaning ceased. Fess and Derrick
remained alone with the body. Perez has never been seen or heard from again.
Stamper’s version of events was largely corroborated by Nantz. Additionally,
Perez’s brother testified, without objection, that Perez had previously felt
threatened by Fess and Derrick. Assuming the truth of this evidence and
indulging all fair and reasonable inferences therefrom, we conclude the
Commonwealth carried its burden of proving the corpus delicti, and thus, the
trial court properly denied the motion for directed verdict.
As for the credibility of Stamper and Nantz, this was clearly a matter for
the jury to decide. The general rule in Kentucky is that “[i]t is only where the
testimony is so incredible on its face as to require its rejection as a matter of
law that the jury will not be permitted to consider it.” Ross v. Commonwealth,
531 S.W.3d 471, 475 (Ky. 2017) (quoting Daulton v. Commonwealth, 310 Ky.
141, 220 S.W.2d 109, 110 (1949)). This unusual circumstance arises “when
the substance of the testimony, detached from the personal credibility of the
12 witness . . . is so laden with doubt and implausibility that it cannot rationally
be regarded as a fact capable of supporting a verdict.” Id. (emphasis added).
In other words, “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.” Id. at
476 (quoting Coney Island Co. v. Brown, 290 Ky. 750, 162 S.W.2d 785, 787-88
(1942)). We acknowledge Fess and Derrick provide “plenty of reasons to
disbelieve [Stamper and Nantz], but the substance of [their] testimony
describing [Fess and Derrick’s] role in the crime is not so extraordinarily
implausible or inherently impossible that it is manifestly without probative
value or patently unworthy of belief; it could have happened as [they] testified.”
Id. at 477.
Derrick further argues his murder conviction cannot stand because the
Commonwealth failed to prove his specific conduct was more consistent with
guilt than innocence. He is correct that “absent a showing of other facts and
circumstances connecting a defendant with the crime, mere presence at the
scene of the crime is not sufficient to attach guilt to defendant.” Rogers v.
Commonwealth, 315 S.W.3d 303, 310 (Ky. 2010) (citation omitted). However,
“[c]onspiracy, as envisioned by the statute governing complicity” merely
requires “that defendants agree to act in concert to achieve a particular
13 objective and that at least one of them commit that objective.” Id. (citation
omitted).
Viewing the evidence in the light most favorable to the Commonwealth,
we cannot credit the assertion that Derrick was merely present at the scene or
that his behavior was as consistent with innocence as with guilt. Nantz
testified Derrick and Fess lured Perez to a remote area to rob him of drugs or
money and that Derrick had “roughed him up pretty tough.” Derrick
subsequently left Eads’s residence together with Fess, Stamper, and
Whitehead. At the time they arrived at the Blue Gates, Stamper testified that
Perez was already severely beaten to the point where he could not stand. While
Fess kicked Perez on the ground, Derrick remained nearby swinging a machete.
Derrick joined Fess in cursing and mocking Perez as he suffered. Derrick also
stayed with Fess at the scene after the shooting. Additionally, he sent a
Facebook message which referenced a murder investigation before he
reasonably could have known such information, thereby suggesting
consciousness of guilt.
While we agree with the trial court that the directed verdict issue is a
closer call pertaining to Derrick, we also recognize the scope of complicity
under KRS 502.020 is “broad enough to embrace acts, words, agreements,
encouragement, incitement, and every form of participation in concerted
criminal activity.” Young v. Commonwealth, 426 S.W.3d 577, 582 (Ky. 2014)
(quoting George G. Seelig, Kentucky Criminal Law § 3–3(b)(4) at 107 (2d. ed.
2008)). Further, the manner of complicity is “definitional, not substantive[,]”
14 meaning the various types of conduct listed in KRS 502.020 are “not to be
viewed as a separate or alternative theory.” Finney v. Commonwealth, 638
S.W.2d 709, 710 (Ky. App. 1982), overruled on other grounds by Hibbard v.
Commonwealth, 661 S.W.2d 473 (Ky. 1983). In other words, “the acts giving
rise to accomplice liability are not so readily defined and may encompass a
continuum of events.” Mills v. Commonwealth, 44 S.W.3d 366, 371 (Ky. 2001).
On these facts, we cannot conclude it was clearly unreasonable for the jury to
find Derrick guilty of complicity to murder by conspiring with Fess or otherwise
aiding, counseling, encouraging, or attempting to aid in the commission of the
crime. KRS 502.020(2)(a).
2. Trial court properly instructed the jury on complicity to murder.
For their second contention of error, Fess and Derrick argue the jury
instructions were inconsistent with the indictment. Specifically, they contend
the indictment charged them with conspiracy to murder, a Class B felony,
instead of complicity to murder, a Class A felony. Thus, they assert the trial
court erred by instructing the jury on complicity. We agree with the
Commonwealth that Fess and Derrick are mistaken about the character of the
indictment.
Fess and Derrick concede this issue is unpreserved for review and
request palpable error review. RCr 9 10.26 authorizes an appellate court to
review an unpreserved error as follows:
9 Kentucky Rules of Criminal Procedure.
15 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.
A palpable error is “easily perceptible, plain, obvious, and readily
noticeable.” Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006). To
demonstrate manifest injustice, a party must show the “probability of a
different result or error so fundamental as to threaten a defendant's
entitlement to due process of law.” Martin v. Commonwealth, 207 S.W.3d 1, 3
(Ky. 2006). In other words, a palpable error occurs where “the defect in the
proceeding was shocking or jurisprudentially intolerable.” Id. at 4.
As the Commonwealth notes, Fess and Derrick both tendered proposed
instructions on complicity to murder. Typically, this Court will refuse to
address alleged defects in the jury instructions under the invited error doctrine
where the defendant proposed an instruction “virtually identical to the one
given by the trial court.” Rudd v. Commonwealth, 584 S.W.3d 742, 746 (Ky.
2019). Here, however, the issue is not confined merely to the propriety of a
given instruction; it is whether the complicity instruction permitted Fess and
Derrick to be convicted of an uncharged crime. We have long considered such
an error to be jurisprudentially intolerable and thus subject to palpable error
review. Caretenders, Inc. v. Commonwealth, 821 S.W.2d 83, 86 (Ky. 1991).
Count 1 of the indictment against Fess charged as follows:
On or about the 2nd to the 4th day of April 2020, in Harlan County, Kentucky, the above-named defendant committed the offense Murder, KRS 507.020, by participating in a conspiracy pursuant
16 to which Wilmer Perez was shot and killed by one Destiny Stamper[.]
Count 1 of the indictment against Derrick was identically worded.
The law “has long been settled . . . that a ‘conspiracy to commit a crime
is a different offense from the crime that is the object of the conspiracy.’”
Fulton v. Commonwealth, 849 S.W.2d 553, 555 (Ky. App. 1992) (quoting
American Tobacco Co. v. United States, 328 U.S. 781, 789 (1946)). Indeed,
while Kentucky law recognizes criminal conspiracy as a standalone offense; for
the purposes of complicity, “[t]he conspiracy merely constitutes the factual
basis supporting the agency relationship which imposes criminal liability[.]”
Tribbett v. Commonwealth, 561 S.W.2d 662, 663 (Ky. 1978). In other words,
“‘complicity’ is not a separate crime; rather, it is a means by which a crime may
be committed.” Smith v. Commonwealth, 370 S.W.3d 871, 873 n.1 (Ky. 2012).
Further, under KRS 502.020(1)(a) and (2)(a), accomplice liability may be
properly imposed where a person engages in a conspiracy which results in a
completed offense.
While the indictments in the present matter could have perhaps been
more precisely worded, we read the pertinent language to have unmistakably
charged Fess and Derrick as accomplices in the completed offense of murder
under KRS 507.020 by means of participation in a conspiracy whereby
Stamper shot and killed Perez. The indictment charged that Fess and Derrick
were guilty of murder “by participating in a conspiracy.” Guilt by complicity
through participation in a conspiracy is distinct from a charge that a defendant
committed the crime of conspiracy. In other words, the act of conspiracy 17 provided the factual basis by which Fess and Derrick were complicit in the
completed offense of murder. See Tribbett, 561 S.W.2d at 663. Thus, the trial
court did not instruct the jury on an uncharged crime. The rule in Kentucky is
that “the indictment and jury instructions need not be perfectly matched so
long as they describe the same offense: ‘If the guts are there the feathers are
inconsequential.’” Johnson v. Commonwealth, 105 S.W.3d 430, 443 (Ky. 2003)
(quoting Maddox v. Commonwealth, 349 S.W.2d 686, 693 (Ky. 1961)).
Moreover, we cannot conclude that Fess and Derrick were seriously
misled by the indictment to their prejudice despite numerous references to a
charge of “conspiracy to commit murder” on various docket sheets and other
documents throughout the present record. Notably, neither Fess nor Derrick
moved for a bill of particulars. The trial court read both indictments to the jury
at the conclusion of voir dire without objection or additional discussion. In
their opening statements, Fess and Derrick both acknowledged they were
charged with murder. Additionally, Fess and Derrick submitted their own
tendered instructions on complicity to murder yet they did not submit any
proposed instructions on conspiracy as a standalone offense. Ultimately, when
a defendant claims a prejudicial variance from the terms of the indictment, it is
the language contained in the body of the indictment that controls. Johnson,
105 S.W.3d at 445. Thus, we perceive no error, much less palpable error,
pertinent to the instruction on complicity.
3. Trial court properly instructed on lesser-included offenses of murder.
18 Fess and Derrick next argue the trial court erred by instructing the jury
on the lesser-included offenses of complicity to second-degree manslaughter
and complicity to reckless homicide over their objection. We disagree.
The trial court originally agreed to strike the instructions on these lesser-
included offenses at the request of Fess and Derrick, and the Commonwealth
voiced no objection. However, the trial court subsequently reconsidered, and
informed the parties, over Fess and Derrick’s objection, that it would instruct
the jury on complicity to second-degree manslaughter and complicity to
reckless homicide.
RCr 9.54(1) imposes a duty upon the trial court “to instruct the jury in
writing on the law of the case[.]” The law of the case encompasses “every state
of the case deducible or supported to any extent by the testimony[,]” including
lesser-included offenses and any available affirmative defenses. Hargroves v.
Commonwealth, 615 S.W.3d 1, 6 (Ky. 2021) (quoting Taylor v. Commonwealth,
995 S.W.2d 355, 360 (Ky. 1999)). Thus, “[t]he jury instructions must be
complete and the defendant has a right to have every issue of fact raised by the
evidence and material to his defense submitted to the jury on proper
instructions.” Hayes v. Commonwealth, 870 S.W.2d 786, 788 (Ky. 1993). “It
follows that the giving of an instruction on lesser-included offenses when the
evidence would permit a jury to rationally find a defendant guilty of the lesser-
included offense and acquit him of the greater offense is not erroneous, even if
given over the defendant's objection.” Smith v. Commonwealth, 737 S.W.2d 683,
688 (Ky. 1987) (emphasis added).
19 In Commonwealth v. Wolford, 4 S.W.3d 534, 538-39 (Ky. 1999), we
further explained,
[t]his is not an issue of first impression. For over one hundred years, the rule has been that when the defendant testifies to facts showing how the killing occurred and where there is no room for any possible theory except that he is guilty of murder or he is innocent, there is no reason for the court to instruct the jury on lesser offenses; but when the evidence is entirely circumstantial and only establishes the corpus delicti and other circumstances from which the defendant’s connection with the crime might be inferred, the jury should be instructed on all degrees of homicide and, if there is evidence of a struggle, on self-defense.
The basis of this well-established rule is our recognition that “even though a
jury may legitimately find intent to cause death from actions of which death is
a natural and probable consequence, it is not always required to so find.”
Smith, 737 S.W.2d at 688 (emphasis added). “Even when death is a natural
and probable consequence of an act, there may exist circumstances which
make it reasonable for the jury not to be convinced beyond a reasonable doubt
that the defendant intended to cause death.” Id. Consequently, “the jury can
rationally convict a defendant of a lesser-included offense and acquit him of the
greater offense of intentional murder.” Id.
In the present appeal, the circumstances surrounding Perez’s death were
disputed and obscure. There was no physical evidence, and no body was
produced. Neither Fess nor Derrick testified and both relied upon a general
denial of the charged offenses. While Stamper’s testimony concerning the
shooting of Perez was highly suggestive of intentional conduct on the part of
Fess and Derrick, it was by no means definitive, particularly with respect to
20 their respective states of mind. Stamper also stated Fess told her the events
leading up to Perez’s death began with a confrontation over a robbery that “just
got out of hand.”
Based on this evidence, we are convinced the jury could have reasonably
found Fess and Derrick guilty of complicity to second-degree manslaughter 10
upon a finding that they wantonly caused Perez’s death. Likewise, the evidence
supported the instruction on reckless homicide 11 because the jury could have
rationally found Fess and Derrick guilty of recklessly causing Perez’s death.
Therefore, the trial court properly instructed the jury on these lesser included
offenses despite the objections of Fess and Derrick.
4. Derrick invited error pertaining to definition of complicity.
Derrick also argues the jury instruction on complicity to murder failed to
conform to the evidence. Because the trial court determined the jury could
only be instructed on a complicity to the result theory under KRS 502.020(2),
Derrick argues the instructions were defective because the definition of
complicity contained the word “commanded” which only pertains to complicity
to the act under KRS 502.020(1). 12 He concedes this argument is unpreserved
and requests palpable error review.
At the conference on the instructions, the trial court informed the parties
that it would only instruct on complicity to the result as to Derrick to which he
10 KRS 507.040.
11 KRS 507.050.
12 As to Fess, the trial court determined the evidence warranted instructions on
both complicity to the act and complicity to the result.
21 replied, “I’m fine with the instruction, Judge, but we too would like any lesser-
includeds removed.” Further, Derrick’s tendered instruction on complicity to
murder also contained the word “commanded,” the phrasing on which he now
predicates error. Thus, we conclude Derrick has invited any error in this
regard and waived appellate review. Rudd, 584 S.W.3d at 746.
5. Trial court did not abuse its discretion by allowing witness to hold a stuffed animal.
Next, Fess and Derrick argue the trial court erred by permitting Stamper
to hold a stuffed animal during her testimony. Specifically, they argue the use
of this item improperly bolstered Stamper’s testimony and otherwise unfairly
portrayed her as an innocent child. We disagree.
On the morning of the second day of trial, the parties discussed various
preliminary matters with the court outside of the presence of the jury. At one
point, Derrick inquired into the purpose of a stuffed animal 13 that was placed
on either the bench or the witness chair. 14 To the amusement of the parties
and court personnel, the trial court quipped, “That’s mine, it’s a comfort thing
for me.” Derrick responded that was fine if it was for the trial court, but he
objected to Stamper being permitted to hold the stuffed animal during her
testimony. The trial court stated, “It’s not a prop, if it makes her comfortable.
You know, people carry those things on airplanes, and they end up carrying
13 In their respective briefs, Fess and Derrick continue to refer to the item as a
stuffed animal while the Commonwealth variously describes it as a toy or stuffed animal. From our review of the record, we cannot discern any additional defining characteristics and thus accept the parties’ terminology. 14 The object in question was not visible on the video record at this time.
22 little dogs and pets on airplanes . . . to ease any stress.” The trial court further
offered “to explain to the jury it’s just a stress reliever.” Fess and Derrick then
asked for their objections to be preserved for the record.
As a general matter, Kentucky trial courts possess “the inherent
authority and discretion to control the decorum and conduct of those in the
courtroom to ensure that neither the defendant nor the Commonwealth is
denied a fair trial.” Allen v. Commonwealth, 286 S.W.3d 221, 230 (Ky. 2009)
(citing State v. Speed, 961 P.2d 13, 29-30 (Kan. 1998)). KRE 611(a) pertains
specifically to the examination of witnesses and provides:
The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to:
(1) Make the interrogation and presentation effective for the ascertainment of the truth;
(2) Avoid needless consumption of time; and
(3) Protect witnesses from harassment or undue embarrassment.
“This provision requires ‘reasonable control’ by the trial judge over these
matters and identifies objectives that the judge must pursue in exercising that
control, namely ascertaining truth, conserving time, and protecting witnesses
from harassment or undue embarrassment.” Robert G. Lawson, Kentucky
Evidence Law Handbook § 3.20[1][b] (2023). Because “[m]odern litigation
creates a wide variety of problems related to interrogation of witnesses,
production of evidence, and general trial management,” trial judges are given
“broad discretion . . . to deal with problems and situations associated with the
23 production of evidence.” Disabled American Veterans, Dept. of Kentucky, Inc. v.
Crabb, 182 S.W.3d 541, 550-51 (Ky. App. 2005) (quoting Lawson, at § 3.20 [2],
238 (4th ed. 2003). The “test for abuse of discretion is whether the trial judge's
decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
Fess and Derrick cite Brown v. Commonwealth, 983 S.W.2d 513 (Ky.
1999), as controlling authority for the proposition an adult witness 15 should
not be permitted to hold a prop while testifying. We perceive Brown to be
distinguishable from the present appeal.
In Brown, we held it was reversible error to bolster the credibility of a
witness by allowing the witness to hold a Bible while testifying. Id. at 516.
Our conclusion resulted from an analysis of the proper use of character
evidence under KRE 404(a) and KRE 608. Id. at 515. The crux of the matter
was that “the effect of [the witness’s] testimony while holding a Bible likely
served to bolster his credibility with the jury and it did so prior to any attempt
by Appellant’s trial counsel to impeach [the witness].” Id. We further
concluded the rules of evidence only permit the bolstering of a witness “in the
form of opinion or reputation[.]” Id.
Because of its manifest spiritual authority in our culture, the Bible
“carries the historical and inherent connotation that one who testifies while
15 We note child victims and witnesses are entitled to various accommodations
under KRS 26A.140.
24 holding it is telling the truth.” Jackson v. Commonwealth, No. 2002–SC–0097–
MR, 2003 WL 22415621 at *2 (Ky. October 23, 2003). By contrast, “[t]he
presence of a teddy bear, in and of itself, does not emanate truthfulness or
bolster a witness’s credibility.” Id. We endorse and adopt the reasoning of the
unpublished Jackson decision in this respect. 16
We recognize the jury’s determination of Stamper’s veracity and
credibility was central to the verdict. Under the present circumstances,
however, we cannot conclude the trial court abused its broad discretion.
In regard to Stamper’s age and the nature of her testimony, she was
clearly an adult, being 21 years of age at the time of trial. However, the
traumatic events to which she testified occurred when she was 18, and her
relationship with Fess began while she was still a minor. We acknowledge that
Fess and Derrick dispute the degree of Stamper’s culpability and her level of
participation in the murder. Regardless, Stamper testified she killed Perez to
avoid her own death by Fess’s hand. She also testified Fess had previously
abused her. Stamper’s difficulty in testifying was evident. She immediately
began to cry on the witness stand prompting a brief expression of concern from
the trial court. Her voice was quavering and low at times, and she broke down
as she related the details of Perez’s murder. Given the disturbing nature of the
crime and the other surrounding circumstances, we have little trouble
16 We could not locate any published Kentucky decisions on this point and rely
upon Jackson as persuasive, rather than mandatory, authority. See Kentucky Rules of Appellate Procedure (RAP) 41(A)(3).
25 concluding that the use of the stuffed animal assisted with presentation of
Stamper’s testimony.
Importantly, Stamper’s use of the comfort item was unobtrusive. Indeed,
as noted above, from our review of the record, we cannot determine with any
degree of certainty what type of stuffed animal or toy was used. The item was
not visible when Stamper approached the stand and took her oath. It was not
clearly visible during her testimony, although at certain times, Stamper was
evidently clutching the item on her lap. The stuffed animal was completely
visible on the video record for approximately 15 seconds after the conclusion of
Stamper’s testimony while the parties debated whether she was subject to
recall or could be excused. Stamper stood up holding the item and turned to
leave through the door immediately adjacent to the witness chair. From this
vantage point, the stuffed animal simply appeared to be a blue cushion with
purple markings. We cannot discern any disruption or undue focus on its use
by Stamper.
Based on our review of the record, we cannot conclude the trial court
abused its broad discretion by allowing Stamper to hold a stuffed animal while
testifying. The surrounding circumstances amply justified the use of a comfort
item, and the exposure of the item to the jury was minimal. We do not perceive
any indication the use of this item was calculated to cause, or did in fact result
in, any undue prejudice to Fess and Derrick.
6. References to prior bad acts did not amount to palpable error.
26 Fess and Derrick next argue the trial court improperly allowed various
references to prior bad acts in violation of KRE 404(b). Neither of their claims
are properly preserved and they request palpable error review.
The general rule is well-established “that evidence of other crimes is not
admissible to show that a defendant is a person of criminal disposition.”
Gasaway v. Commonwealth, 671 S.W.3d 298, 333 (Ky. 2023) (citing KRE
404(a)). However, such evidence may be admissible when offered for a purpose
other than criminal predisposition “such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or
accident; or . . . [i]f 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.” KRE 404(b)(1)-(2). “The
admissibility of evidence under KRE 404(b) is evaluated under a three-part
test: (1) relevance; (2) probativeness; and (3) prejudicial effect.” Gasaway, 671
S.W.3d at 334.
Fess argues the trial court improperly allowed Stamper to testify that he
was “dangerous” and had previously placed his hands on her thus implying
physical abuse. He further contends it was improper for the Commonwealth to
elicit testimony suggesting that Fess and Stamper engaged in an age-
inappropriate relationship. We disagree.
In murder cases, we have previously permitted reasonable inquiry into
the dynamics of intimate relationships between co-defendants provided there is
a sufficient connection between the relationship and the charged criminal
27 conduct. Murray v. Commonwealth, 399 S.W.3d 398, (Ky. 2013); Chumbler v.
Commonwealth, 905 S.W.2d 488 (Ky. 1995). Here, the charge of complicity to
murder was based on the allegation that Fess forced Stamper to kill Perez by
threatening to shoot her if she refused. In his opening statement, Fess
attacked Stamper’s credibility by declaring “she was charged with murder as a
co-defendant.” Because Fess and Stamper each participated in Perez’s murder,
their respective states of mind were similarly relevant to the ultimate issue of
Fess’s guilt. Thus, the nature of their personal relationship, including prior
acts of violence, was relevant to explain the development of their criminal
relationship.
Evidence of prior bad acts “is sufficiently probative if the trial judge
believes ‘the jury could reasonably infer that the prior bad acts occurred and
that [the defendant] committed such acts.’” Leach v. Commonwealth, 571
S.W.3d 550, 554 (Ky. 2019) (quoting Parker v. Commonwealth, 952 S.W.2d 209,
214 (Ky. 1997)). The probative value of evidence is distinct from issues
pertaining to its weight and credibility. Ross, 531 S.W.3d at 476. Here,
Stamper’s direct testimony that she credited Fess’s threat to kill her based on
prior abuse in their relationship and her observations of his explosive temper
was sufficiently probative. Any additional lack of explanatory detail is a
question of weight and credibility, not of probative value.
KRE 404(b) evidence “is, of course, prejudicial to [the defendant] as all
evidence of culpability is in a criminal proceeding.” Luna v. Commonwealth,
460 S.W.3d 851, 873 (Ky. 2015). However, the pertinent inquiry is not whether
28 such evidence is merely prejudicial but whether it is “unduly prejudicial
because it is not unnecessary or unreasonable.” Id. (footnote omitted). Indeed,
“[t]he prejudice must go beyond that which is merely detrimental to a party’s
case and be of such character that it ‘produces an emotional response that
inflames the passions of the triers of fact or is used for an improper purpose.’”
Kelly v. Commonwealth, 655 S.W.3d 154, 165 (Ky. 2022) (quoting Lawson, at §
2.25[3][d], at 135 (4th ed. 2003)). We have little difficulty concluding the
probative value of Stamper’s testimony in this regard outweighed its prejudicial
effect. Certainly, “[t]he jury was entitled to see the entire picture, not just the
self-serving portion [Fess] sought to reveal.” Murray, 399 S.W.3d. at 410
(footnote omitted).
For his part, Derrick argues the trial court improperly allowed evidence
of his participation in a robbery. Specifically, he contends Sgt. Hensley should
not have been permitted to recount Eads’s allegation that he and Whitehead
were robbing a trailer. Additionally, Derrick asserts Sgt. Hensley should not
have been allowed to read the Facebook message that Derrick sent a few days
prior to the murder, stating, “I know two good licks. And when I say licks I
don’t play around like everyone one else. I’m talking some money.” Sgt.
Hensley clarified that “lick” is a slang term for a robbery. We cannot conclude
the admission of this evidence amounted to palpable error.
We perceive the incident at the trailer to have provided relevant
background and context to Sgt. Hensley’s investigation. Additionally, the
evidence was sufficiently probative as the circumstances surrounding this
29 alleged robbery were within Sgt. Hensley’s personal knowledge. Further, we
cannot conclude Derrick was unduly prejudiced considering Sgt. Hensley’s
testimony that he did not believe any criminal activity to have occurred.
We also regard the Facebook message to have been clearly relevant to
Derrick’s motive, opportunity, intent, identity, and plan. Dooley v.
Commonwealth, 626 S.W.3d 487, 494 (Ky. 2021) (“Motivation and identity thus
become the independent, non-propensity bases for offering the evidence, so
proof should be allowed, even if the evidentiary foundation depends on
speculation to some extent.”). The Commonwealth’s theory relied on evidence
suggesting that Perez’s murder directly resulted from a robbery or from Perez’s
attempt to recover his property following a robbery. Additionally, we deem this
evidence to be relevant and necessary for the presentation of “a complete, un-
fragmented, un-artificial picture of the crime committed by the defendant,
including necessary context, background and perspective.” Major v.
Commonwealth, 177 S.W.3d 700, 708 (Ky. 2005).
Although the message does not specify the intended target of the
robberies, we consider the evidence to have been sufficiently probative. The
Commonwealth laid the proper foundation for the admission of the evidence
and no challenge was made to its authenticity. Moreover, given the close
temporal relation to Perez’s death, we conclude this evidence could support a
reasonable inference that Perez was the target of Derrick’s robbery scheme.
Here, again, any lack of detail in connection with this evidence goes to the
weight rather than the admissibility. Further, because this evidence was
30 clearly relevant to provide necessary context to the charged crimes, we cannot
conclude the prejudicial effect outweighed the probative value.
7. Trial Court Properly Imposed Court Costs.
Fess and Derrick next argue the trial court erred by imposing court costs
in the amount of $140.50 despite their status as indigents. We disagree.
In Chadwell v. Commonwealth, 627 S.W.3d 899, 902 (Ky. 2021), we
rejected the argument that finding of indigency under the “needy person”
standard contained in 31.100 necessarily implies that a defendant is a “poor
person” thus exempted from the payment of courts under KRS 23.025. In
other words, a defendant “is not deemed to be a ‘poor person’ who is exempt
from court costs, simply because he was determined to be a ‘needy person’
eligible for the services of a public defender as these determinations have two
different statutory standards.” Id.
“The onus is ‘on the part of a defendant to raise and show poverty
status.’” Id. (quoting Hall v. Commonwealth, 551 S.W.3d 7, 23 (Ky. 2018)). In
the absence of a specific request and explicit finding relative to whether a
defendant qualifies for the exemption under KRS 23A.205, “we cannot say a
judgment imposing court costs was ‘an illegal sentence’ subject to correction on
appeal despite its lack of preservation.” Id. (citing Spicer v. Commonwealth,
442 S.W.3d 26, 35 (Ky. 2014)).
Fess and Derrick seek to avoid the holding in Chadwell by claiming the
trial court had sufficient, independent knowledge of their respective financial
situations to exempt them from the payment of court costs. However, this
31 argument is based primarily on findings contained in the trial court’s order on
bond reduction. In setting the terms of bond, the trial court specifically noted
Fess and Derrick did not provide “one iota” of evidence on their financial ability
to pay bail and instead relied entirely on their affidavits of indigency for the
appointment of counsel. Because a finding of indigency cannot be used to
directly prove entitlement to the exemption for court costs in the absence of an
explicit request for a determination of status as a “poor person,” we likewise
hold a finding of indigency cannot indirectly be used as proof in this regard.
Derrick further argues the trial court had knowledge he was a state
inmate on other charges at the time of sentencing in this case. While the
record does contain evidence of Derrick’s prior imprisonment, there is no
indication this information was presented in the context of a request for a
financial determination under KRS 23A.205.
Here, the trial court expressly imposed court costs without finding,
implicitly or explicitly, that either Fess or Derrick was a “poor person” under
KRS 23A.205. Moreover, neither Fess nor Derrick made any request for such a
determination. Thus, reversal is unwarranted because the imposition of court
costs was facially valid under Chadwell.
8. No Cumulative Error Occurred.
Finally, Fess and Derrick argue their convictions should be reversed
under the cumulative error doctrine. We disagree.
The cumulative error doctrine provides that “multiple errors, although
harmless individually, may be deemed reversible if their cumulative effect is to
32 render the trial fundamentally unfair.” Brown v. Commonwealth, 313 S.W.3d
577, 631 (Ky. 2010). “We have found cumulative error only where the
individual errors were themselves substantial, bordering, at least, on the
prejudicial.” Id. (citing Funk v. Commonwealth, 842 S.W.2d 476 (Ky. 1992)).
Further, “[w]here . . . none of the errors individually raised any real question of
prejudice, we have declined to hold that the absence of prejudice plus the
absence of prejudice somehow adds up to prejudice.” Id. (citing Furnish v.
Commonwealth, 95 S.W.3d 34 (Ky. 2002)). A criminal defendant “is guaranteed
a fair trial[,]” but “[t]his does not mean, however, a perfect trial, free of any and
all errors.” McDonald v. Commonwealth, 554 S.W.2d 84, 86 (Ky. 1977). In the
present appeal, we fail to discern any multiplicity of errors that would render
the joint trial fundamentally unfair.
CONCLUSION
Accordingly, we affirm the judgment of the Harlan Circuit Court in No.
2023-SC-0125-MR and No. 2023-SC-0135-MR.
All sitting. VanMeter, C.J.; Bisig, Conley, Keller, Nickell, JJ., concur.
Lambert, J., concurs in part and dissents in part by separate opinion, in which
Thompson, J., joins.
LAMBERT, J., CONCURRING IN PART AND DISSENTING IN PART:
Respectfully, while I concur with much of the majority, I must dissent as to the
holding that it was not error to permit the adult shooter to hold a stuffed
animal as she testified. Stamper, who admittedly shot the victim, was
permitted to hold a stuffed animal as she testified. While I do not think this
33 error was reversible, we should not endorse the use of “comfort items” which
could easily be abused by witnesses in an attempt to bolster credibility and/or
convey youthful innocence or vulnerability. This holding, will lead to further
use of such devices in attempts to garner sympathy from the jury. Thus, I
must dissent from such theatrics before a jury.
COUNSEL FOR APPELLANT FESS POLLY:
Steven J. Buck Assistant Public Advocate
COUNSEL FOR APPELLANT DERRICK POLLY:
Jennifer Wade Assistant Public Advocate
COUNSEL FOR APPELLEE:
Russell M. Coleman Attorney General of Kentucky
Christopher Henry Assistant Attorney General