COOPER, Justice.
During the early morning hours of August 19, 1993, Bess Horton was murdered in the bedroom of her home in Grayson, Kentucky. Her throat was slashed, and she was stabbed in the head with such force that the knife buried to the hilt in her right temple and the point of the blade protruded from her left temple. Officers Ron Lindeman and Larry Green of the Grayson Police Department were in the neighborhood investigating a suspected burglary when they saw a light in the Horton residence. Lindeman entered Mrs. Horton’s bedroom through an open window and discovered her body lying in her bed. He also encountered Appellant Samuel Fields in the bedroom in possession of a knife, two razor blades, and numerous items of Mrs. Horton’s jewelry. Following a trial by jury in the Rowan Circuit Court, Appellant was convicted of Horton’s murder and sentenced to death. He appeals to this Court as a matter of right. Ky. Const. § 110(2)(b). We reverse for a new trial, because (1) the jury was permitted to hear the recorded narrative of a staged videotaped reenactment of Lindeman’s investigation of the crime scene, and (2) the trial judge erroneously failed to instruct the jury on manslaughter in the second degree as a lesser included offense of murder.
I. FACTS.
Appellant’s girlfriend, Minnie Burton, acted as a chauffeur for Mrs. Horton and ran errands for her when requested. In exchange, Horton allowed Burton to live rent-free in a duplex apartment located near Horton’s residence. There was evidence that Horton decided to evict Burton and that she cut off the water to Burton’s apartment, forcing her to spend nights at the homes of friends. There was also evidence that Burton had remarked that “someone ought to kill (Horton),” and that [278]*278she had told a friend, Phyllis Berry, that Horton kept a metal box containing $4,000.00 in her bedroom. This latter information became significant when another witness testified that Berry had confessed to him that she and Minnie Burton went to Horton’s residence to steal the metal box and that she (Berry) killed Horton when Horton awoke during the burglary and recognized Burton.
From about noon on August 18, 1993 until after midnight, Appellant, Minnie Burton, Phyllis Berry, and others drove around Carter and Boyd Counties, consuming large amounts of alcohol, mostly beer. The group made two separate trips to Ashland to purchase several cases of beer. They stopped at the residence of Phyllis Berry’s brother in Boyd County, where Appellant drank some whiskey and ingested some “horse tranquilizers.” Appellant and Burton finally returned to Grayson with the intention of spending the night at a residence occupied by Appellant’s mother and brother. After entering the residence, Appellant continued drinking beer and began quarreling with Burton. When he began throwing food, furniture and other objects, including knives, around the kitchen, Burton fled the residence and told Appellant she was going to her apartment. After destroying some more personal property and threatening his brother with a knife, Appellant broke the glass on the kitchen door with his fist, causing lacerations of his right arm. After retrieving several more cans of beer, Appellant proceeded to Burton’s apartment.
Burton had been unable to gain entry to her apartment, because Elmer Prichard, the other resident of the duplex, had locked the doors. Appellant arrived and. told Burton that he had killed his brother (which he had not), and asked her if she would dispose of the alleged murder weapon. He gave Burton a knife, which she threw into some nearby bushes. Appellant then went into “a frenzy” and attempted to gain entry to Burton’s apartment by ripping the screens off of the windows. Burton again fled. Elmer Prichard called the police and Officers Lindeman and Green responded to the call. Appellant testified that he then proceeded to the Horton residence looking for Burton, because Burton had told him of her intention to “rob” Horton. He sat on Horton’s porch for a while drinking beer, then entered Horton’s bedroom through an open window. He turned on his cigarette lighter for illumination and saw that the room had been ransacked. However, he did not notice Horton’s body on the bed. He then began pocketing whatever he could find, including jewelry and a knife.
While investigating the attempted burglary of the duplex, Officers Lindeman and Green noticed a light inside the Horton residence. They found the garage door open, but the inside door locked. Linde-man then discovered the open window and climbed inside, where he found both Horton’s body and Appellant. Some jewelry, a knife, and two razor blades either fell from or were removed from Appellant’s pockets. According to Lindeman, he offered to read Appellant his Miranda rights, but Appellant was able to recite them verbatim. Appellant then stated: “Kill me, Ron. Kill me. I stabbed her and I’m into it big this time.” Lindeman testified that when he asked Appellant why he had killed Horton, Appellant replied: “I don’t know. Kill me Ron. I’m going to prison for the rest of my life this, time.” Appellant denied uttering these statements. His version was that Lindeman jumped on him and knocked him to the floor, then put a gun to his head, accused him of killing Horton, and threatened to shoot him.
Appellant was arrested and transported by Kentucky State Trooper Roy Wolfe to King’s Daughters’ Medical Center in Ash-land for treatment of injuries to his right arm. Wolfe testified that in his opinion, Appellant was intoxicated.
After Appellant was removed from the crime scene, Officer Lindeman and an unidentified cameraman staged a lengthy and dramatic videotaped reenactment of the [279]*279investigation leading up to Appellant’s arrest and alleged confession. The cameraman filmed Lindeman as he retraced his route from the duplex apartment to the Horton residence, to the open garage door, then through the open window and into the bedroom. As he led the cameraman through the reenactment, Lindeman narrated where he was, what he was doing, and why. He also described Officer Green’s locations and activities. After entering the bedroom during the reenactment, Lindeman used his flashlight to demonstrate how he drew his gun on Appellant. He narrated how the jewelry, the knife, and the razor blades had either fallen or been removed from Appellant’s pockets, and repeated verbatim Appellant’s confession to murdering Mrs. Horton. The camera was then panned around the bedroom to the jewelry, the knife, and the razor blades, then to some blood on the carpet which Lindeman described as Appellant’s blood. Finally, the camera was focused on the bed where Mrs. Horton’s body still lay, her throat slashed and the knife still buried in her right temple. The camera continued to focus on Mrs. Horton’s wounds for approximately forty seconds until the video was concluded.
Appellant was treated in the emergency room at King’s Daughters’ Medical Center for some minor lacerations of his right arm. No stitches were required. Appellant was examined by Jason Dobson, an emergency medical technician (EMT), who opined at trial that there was too much blood on Appellant’s arms and clothing to have been caused by such minor injuries. Dobson also testified that he asked Appellant how he got the blood on him and that Appellant responded: “You stupid s.o.b., if you had just killed some lady, you would be covered with blood, too.” The blood on Appellant’s arm was washed off at the hospital. Subsequent blood typing and DNA testing revealed that none of the blood found on Appellant’s clothing was traceable to Mrs. Horton and none of the blood found on Horton’s bed was traceable to Appellant.
II. VIDEOTAPED EVIDENCE.
Appellant moved in limine to suppress the videotaped reenactment of Lindeman’s investigation, or, in the alternative, to suppress the audio narrative portion thereof, especially Lindeman’s repetition of Appellant’s alleged confession. The motion was overruled and the videotape was played to the jury in its entirety, both video and audio, not only during Lindeman’s direct testimony, but also during both the prosecutor’s opening statement and his closing argument.
A videotape of a crime scene, including the position of the victim’s body and the location and nature of the victim’s injuries, is just as admissible as a photograph, assuming a proper foundation is laid. Bedell v. Commonwealth, Ky., 870 S.W.2d 779 (1993); Milburn v. Commonwealth, Ky., 788 S.W.2d 253 (1989). If relevant and probative of an issue in the case, a videotape of a crime scene, like a crime scene photograph, is admissible even though gruesome. Mills v. Commonwealth, Ky., 996 S.W.2d 473, 489 (1999); see also Dillard v. Commonwealth, Ky., 995 S.W.2d 366, 370 (1999) and cases cited therein. While we have some reservations with respect to the propriety of focusing the camera on the victim’s wounds for as long as forty seconds, we conclude that jurors would be no more inflamed by this lengthy depiction than by being exposed to a crime scene photograph for the same duration of time. Thus, we conclude that there was no error in admitting the video portion of the taped reenactment. The admission of the audio portion, however, significantly implicates the hearsay rule.
The audio narration on the videotape was undoubtedly an out-of-court statement offered to prove the truth of the matter asserted, ie., hearsay. KRE 801(c). The narration did not fall within any exception to the hearsay rule. It was not a present sense impression, KRE 803(1), because it did not describe events [280]*280as they were happening, but events which had already occurred. It was not within the recorded recollection exception, KRE. 803(5), because Lindeman did not claim to have insufficient recollection of the facts as to be unable to testify without reference to the videotape. In fact, he had already testified to the exact same facts which were repeated in the recorded narration. Appellant’s brief characterizes the audio portion of the videotape as a “verbal police report,” which is inadmissible under the public records exception, KRE 803(8)(A). No effort was made to qualify the videotape as a business record. KRE 803(6); Prater v. Cabinet for Human Resources, Ky., 954 S.W.2d 954, 957-59 (1997). The maker of the record, i.e., the cameraman, was never identified, and there was no proof that it was the regular practice of the Grayson Police Department to videotape reenactments of criminal investigations. Rabovsky v. Commonwealth, Ky., 973 S.W.2d 6, 10 (1998).
The audio narration on the videotape was, in fact, a prior consistent statement offered to bolster Lindeman’s in-court testimony. KRE 801A(a)(2). A pri- or consistent statement generally is admissible only to rebut an express or implied charge of recent fabrication or improper influence or motive, id., neither of which is present in this case. In fact, the videotape was not offered as rebuttal, but was first played during the prosecutor’s opening statement, which occurred not only prior to the introduction of any evidence, but prior to defense counsel’s opening statement. Professor Lawson enumerates some other circumstances when a prior consistent statement could possess “probative value beyond mere repetition,” i.e., to cast doubt on whether or not an alleged prior inconsistent statement was uttered, to refute a claim of inaccurate recollection by the witness who made the prior statement, to amplify or clarify an alleged prior inconsistent statement, or to reflect upon the seriousness of alleged inconsistencies between testimony and a prior inconsistent statement. R. Lawson, The Kentucky Evidence Law Handbook § 8.10 II, at 379-80' (3d ed. Michie 1993). None of those circumstances exist in this case.
In overruling the motion to suppress the audio portion of the videotape, the trial judge relied on language from our opinion in Milbum v. Commonwealth, supra:
[Appellant] particularly objects to a portion of the tape which focused on a large pool of blood, and the simultaneous commentary of the investigating police officer.
This videotape evidence does not fall outside of the broad category of photographs which we have found admissible under a liberal approach recognized in Gall v. Commonwealth, Ky., 607 S.W.2d 97, 106 (1980), and continued through Wager v. Commonwealth, Ky., 751 S.W.2d 28, 31 (1988). The narrative supplied in no way measures up to a grotesque “Poe-like description” as appellant has so characterized it. We uphold the competent ruling of the trial court to admit probative evidence.
Id. at 257.
The trial judge interpreted the first quoted sentence to mean that the “simultaneous commentary of the investigating police officer” was an audio recording accompanying the videotape. The Commonwealth concedes that, in fact, the videotape in Milbum was played with the audio portion muted and that the “simultaneous commentary” was provided by the investigating officer from the witness stand describing the contents of the videotape as it was being played. Milbum provides no authority for allowing a jury to hear an unsworn out-of-court narration of videotaped evidence.
The Commonwealth does not assert that the pre-recorded narration of the videotape falls within an exception to the hearsay rule, but relies solely on the cases of Lee v. State, 526 N.E.2d 963 (Ind.1988), overruled on other grounds, Rita v. State, 674 N.E.2d 968 (Ind.1996) and State v. [281]*281Van Tran, 864 S.W.2d 465 (Tenn.1993), cert. denied, 511 U.S. 1046, 114 S.Ct. 1577, 128 L.Ed.2d 220 (1994) in both of which the admission of similar evidence was held not to be reversible error. That reliance is misplaced.
In Lee v. State, supra, the Indiana Supreme Court noted that, “Officer Trenner-ry’s narration in no way connected appellant with the case nor did he draw any conclusions concerning appellant. His narration was purely factual as to what was being depicted on the tape at the time.” 526 N.E.2d at 965. Here, the audio portion of the videotape included not only a description of what was being depicted on the tape, but also Lindeman’s repetition of Appellant’s alleged confession to the murder. In State v. Van Tran, supra, the Tennessee Supreme Court in fact found that it was error to permit the jury to hear the audio portion of a videotape which described a crime scene as it was being filmed. “The better practice would have been for the trial court to have turned off the volume and had Officer Garner narrate the tape from the witness stand.” 864 S.W.2d at 477. However, the error was deemed harmless, because the narrative pertained mainly to minor matters or facts established elsewhere in the record, and because of the clear evidence of the defendant’s guilt. Here, the narrative included a repetition of Appellant’s alleged confession, and the evidence of Appellant’s guilt of murder was not overwhelming, given the results of the blood tests and Phyllis Berry’s alleged admission that she was the person who killed Mrs. Horton.
In Scott v. State, 559 So.2d 269 (Fla.Dist.Ct.App.1990), the execution of a search warrant by police was videotaped by a national television film crew. The videotape, including the audio portion, was played to the jury during the defendant’s subsequent criminal trial for trafficking in a controlled substance. The audio portion included statements by police officers that a number of complaints had been filed against the residents of the searched premises, that cocaine trafficking had occurred on the premises, and that the property was not zoned for a “supermarket for cocaine.” Admission of the audio portion was held reversible error because the un-sworn statements of the officers were inadmissible hearsay. In Scott, the inadmissible hearsay occurred in a recording of events as they were occurring. Here, the inadmissible hearsay occurred in a recording of a reenactment of events which had already occurred. Either way, the legal principle is the same.
Compounding the error in this case is the fact that the videotape was played to the jury in its entirety not only during the Commonwealth’s case-in-chief, but also during both the prosecutor’s opening statement and his closing argument. RCr 9.42(a) states that, “[t]he attorney for the Commonwealth shall state to the jury the nature of the charge and the evidence upon which the Commonwealth relies to support it.” Thus:
The only legitimate purpose of an opening statement is so to explain to the jury the issue they are to try that they may understand the bearing of the evidence to be introduced.
Lickliter v. Commonwealth, 249 Ky. 95, 60 S.W.2d 355, 357 (1933); see also Brummitt v. Commonwealth, Ky., 357 S.W.2d 37 (1962); Turner v. Commonwealth, Ky., 240 S.W.2d 80 (1951); Mills v. Commonwealth, 310 Ky. 240, 220 S.W.2d 376 (1949).
While we have allowed prosecutors to display admissible items of real evidence to the jury during opening statement, Sherley v. Commonwealth, Ky., 889 S.W.2d 794 (1994) (photograph of the victim), Shelton v. Commonwealth, 280 Ky. 733, 134 S.W.2d 653 (1939) (bloody coat worn by the defendant), we have never sanctioned the playing of a witness’s prerecorded testimony during opening statement, much less a witness’s prerecorded unsworn statement. As for closing argument, attorneys are generally allowed to replay excerpts from recorded testimony, which is analogous to [282]*282reading excerpts from the record. Hodges v. State, 194 Ga.App. 837, 392 S.E.2d 262 (1990); People v. Gross, 265 Ill.App.3d 74, 202 Ill.Dec. 250, 637 N.E.2d 789 (1994). Here, however, the replay of the videotape was but a repetition of Lindeman’s entire testimony, tantamount to recalling Linde-man to the witness stand in the middle of summation. Compare Egan v. Dotson, 36 S.D. 459, 155 N.W. 783 (1915), overruled on other grounds, Hackworth v. Larson, 83 S.D. 674, 165 N.W.2d 705. (1969), in which a pro se litigant attempted to give unsworn testimony regarding a disputed fact during his opening statement.
The right of a person to try his own case does not contemplate the privilege of giving testimony three times in the same case, viz: As an unsworn witness in the “opening statement;” as a witness under oath; and again in his closing argument.
Id. at 790.
Officer Lindeman actually testified four times with respect to his investigation and Appellant’s alleged confession in this case, viz: As an unsworn witness during opening statement, both sworn and un-sworn during the Commonwealth’s case-in-chief, then again as an unsworn witness during closing argument. We do not decide here whether the repetition of admissible evidence could so prejudice a defendant as to entitle him to a new trial. We do decide here that the repetition of inadmissible evidence regarding a disputed fact was so prejudicial in this case as to preclude any finding of harmless error.
III. INTOXICATION DEFENSE.
There was evidence that during the hours preceding Bess Horton’s murder, Appellant consumed a substantial quantity of beer, whiskey, “horse tranquilizers,” and possibly marijuana. His drunken, out-of-control behavior after arriving at his mother’s residence on the night of the murder was well documented. Minnie Burton testified that the two began quarreling because Appellant was attempting to cook “crazy stuff, like pickles, stuff you really don’t cook,” in a frying pan; and that Appellant told her that, “I don’t have any control over anything I do.” Phyllis Berry described Appellant as “highly intoxicated.” Appellant’s brother testified that Appellant was “wired up and ready to fight.” Officer Wolfe described Appellant as being intoxicated when he transported him from the crime scene to King’s Daughters’ Medical Center. From this evidence, the trial judge could and did conclude that Appellant was entitled to an instruction on the defense of intoxication. Slaven v. Commonwealth, Ky., 962 S.W.2d 845, 856 (1997); Brown v. Commonwealth, Ky., 575 S.W.2d 451, 452 (1978); Jewell v. Commonwealth, Ky., 549 S.W.2d 807, 814 (1977), overruled on other grounds, Payne v. Commonwealth, Ky., 623 S.W.2d 867 (1981), cert. denied, 456 U.S. 909, 102 S.Ct. 1758, 72 L.Ed.2d 167 (1982). However, he refused Appellant’s request to instruct the jury on second-degree manslaughter as a lesser included offense of murder.
As pointed out in Slaven v. Commonwealth, supra, at 857, the defense of voluntary intoxication does not authorize an acquittal if the jury finds the defendant was so intoxicated that he could not form the requisite intent to commit murder. Rather, its effect is to reduce the offense from the intentional crime of murder (or first-degree manslaughter) to the wanton crime of second-degree manslaughter. The definition of “wantonly” provides that a person who acts wantonly “solely by reason of voluntary intoxication also acts wantonly with respect thereto.” KRS 501.020(3). This means that if a defendant was so voluntarily intoxicated that he killed another without the intent to do so, the-fact of his voluntary intoxication, itself, constituted the element of wantonness necessary to convict of second-degree manslaughter. Thus, if a jury is instructed on voluntary intoxication as a defense to intentional murder or first-degree manslaughter, it must also be instructed on second-degree manslaughter as a lesser included offense; and the failure to do so [283]*283is prejudicial error. Springer v. Commonwealth, Ky., 998 S.W.2d 439, 454-55 (1999); Slaven v. Commonwealth, supra, at 856-57. Having determined that Appellant was entitled to an instruction on the defense of voluntary intoxication, the trial judge’s refusal to instruct on second-degree manslaughter was reversible error requiring a new trial.
IV. DOBSON’S OPINION TESTIMONY.
Appellant asserts it was error to permit the EMT, Dobson, to express an opinion that there was too much blood on Appellant’s arms and clothing to have resulted solely from Appellant’s relatively minor injuries. The trial judge found that Dobson had sufficient training and experience to express such an opinion, KRE 104(a), KRE 702, and we conclude that his finding in that regard was not an abuse of discretion. Fugate v. Commonwealth, Ky., 993 S.W.2d 931 (1999); Ford v. Commonwealth, Ky., 665 S.W.2d 304 (1983), cert. denied, 469 U.S. 984, 105 S.Ct. 392, 83 L.Ed.2d 325 (1984).
V. APPELLANT’S STATEMENT TO DOBSON.
Appellant asserts it was error to permit Dobson to repeat the incriminating response which Appellant made to Dob-son’s inquiry about the origin of the blood on his body and clothing, because Appellant had not been readvised of his Miranda rights before the inquiry was made. We note at the outset that Miranda was concerned with “the protection which must be given to the privilege against self-incrimination when the individual is first subjected to police interrogation.” Miranda v. Arizona, 384 U.S. 436, 477, 86 S.Ct. 1602, 1629, 16 L.Ed.2d 694 (1966). Miranda does not require that the warnings be repeated each time the interrogation process is resumed after an interruption. United States v. Delay, 500 F.2d 1360, 1365 (8th Cir.1974); Evans v. Swenson, 455 F.2d 291, 296-97 (8th Cir.1972), cert. denied, 408 U.S. 929, 92 S.Ct. 2508, 33 L.Ed.2d 342 (1972); Miller v. United States, 396 F.2d 492, 496 (8th Cir.1968), cert. denied, 393 U.S. 1031, 89 S.Ct. 643, 21 L.Ed.2d 574 (1969). “In each case, the ultimate question is: Did the defendant, with a full knowledge of his legal rights, knowingly and intentionally relinquish them?” Miller v. United States, supra, at 496. At the time of his arrest, Appellant told Officer Lindeman that he was aware of his Miranda rights and, in fact, recited them verbatim to Lindeman. He does not claim and there is no reason to assume that he suddenly forgot them while being transported from the crime scene to the hospital.
Furthermore, Dobson was not a police officer, but an employee of the hospital. There was no evidence to support a conclusion that he was a state actor as is required to support a claim of a violation of a constitutional right.
Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law.
Colorado v. Connelly, 479 U.S. 157, 164, 107 S.Ct. 515, 520, 93 L.Ed.2d 473 (1986); see also Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); Commonwealth v. Cooper, Ky., 899 S.W.2d 75, 76-77 (1995), cf. Coolidge v. New Hampshire, 403 U.S. 443, 487-90, 91 S.Ct. 2022, 2048-50, 29 L.Ed.2d 564 (1971); Brock v. Commonwealth, Ky., 947 S.W.2d 24, 29 (1997).
Appellant relies on Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), in which incriminating statements made by a defendant to a psychiatrist during a competency examination were held inadmissible against him, because the statements were elicited absent preliminary Miranda warnings. The psychiatrist was deemed a state actor, because he had been appointed by the court to conduct the examination. Here, there was no evidence that EMT Dobson was requested or ap[284]*284pointed by any state agency to interrogate Appellant about the origin of the blood on his body and clothing. The mere fact that the police transported Appellant to King’s Daughters’ Hospital for treatment of his wounds did not, ipso facto, transform Dob-son from a hospital employee into a state actor.
VI. EXCLUSION OF EXCULPATORY EVIDENCE.
An arguably exculpatory investigative report was discovered in the records of the Grayson Police Department and furnished to defense counsel prior to trial. The report was unsigned and consisted primarily of hearsay information obtained by its unidentified author from witnesses who implicated Minnie • Burton, Phyllis Berry and Berry’s boyfriend, Scott Trent, in the murder of Mrs. Horton. The report concluded:
I, myself, believe after talking with these people and listening to their stories, that the burglary and murder took place earlier that evening and that the other people had ran off and left Sammy because he had gotten to (sic) wild for them and that Sammy had returned to Minnie Burton’s apartment and broke in there looking for her. Not finding her there, he returned to the crime scene of Mrs. Horton’s home.
Officer Lindeman speculated that the report had been authored by Appellant’s father, Ronald Fields, a former employee of the Grayson Police Department who was employed by the Olive Hill Police Department on the date of Mrs. Horton’s murder. Ronald Fields admitted that he had conducted his own investigation and prepared a report which he furnished to the Grayson Police Department, though he was never called upon to identify this particular report. The report consisted almost exclusively of the kind of “investigative hearsay” which we have consistently condemned. Slaven v. Commonwealth, supra, at 859; Bussey v. Commonwealth, Ky., 797 S.W.2d 483, 486 (1990); Sanborn v. Commonwealth, Ky., 754 S.W.2d 534, 541 (1988), cert. denied, 516 U.S. 854, 116 S.Ct. 154, 133 L.Ed.2d 98 (1995). This kind of evidence is no more admissible when offered by the defendant than when offered by the Commonwealth. Nor does the report fall within the business records exception to the hearsay rule, since there was no proof that the person who prepared the report was under a business duty to do so. KRE 803(6); Rabovsky v. Commonwealth, supra, at 10; Prater v. Cabinet for Human Resources, supra, at 959; Lawson, supra, § 8.65 V, at 465-66. If it was, indeed, prepared by Ronald Fields, he did so at a time when he was not an employee of the Grayson Police Department. Finally, the author’s opinion would not have been admissible under this exception. KRE 803(6)(B).
VII. MISCELLANEOUS ISSUES.
Appellant cites several instances in which he believes the Commonwealth introduced evidence of “other bad acts” in violation of KRE.404(b). We have examined each of these claims and disagree with Appellant’s characterization of this evidence. Specifically, the fact that Officer Lindeman knew Appellant did not imply prior bad conduct, since Appellant’s father was a police officer and had formerly worked for the Grayson Police Department.. The fact that Minnie Burton was afraid of Appellant logically followed the facts that Appellant had thrown knives at her while at his mother’s residence and had told her that he had just killed his brother. The fact that Phyllis Berry testified that her brother was now in prison cast no reflection on Appellant’s character just because Berry’s brother was an acquaintance of Appellant.
The crime scene photographs were admissible for the same reasons as the video portion of the crime scene videotape. The prosecutor’s inquiry of Officer Lindeman as to whether Appellant denied killing Mrs. Horton was not a comment on Appellant’s silence. According to Lindeman, [285]*285Appellant did not exercise his right to remain silent, but admitted killing Mrs. Horton. The trial judge did not abuse his discretion or deny Appellant a public trial by removing spectators from the courtroom prior to hearing legal arguments concerning jury instructions, particularly in the absence of any objection. See generally Lexington Herald-Leader Co., Inc. v. Meigs, Ky., 660 S.W.2d 658 (1983). Except for the failure to include an instruction on second-degree manslaughter, the trial judge’s instructions accurately framed the law of the case. It was not error to admit evidence of Appellant’s five prior convictions during the penalty phase of the trial. KRS 532.025(l)(b). Use of the burglary as an aggravating factor authorizing imposition of the death penalty did not constitute double jeopardy. Bowling v. Commonwealth, Ky., 942 S.W.2d 293, 308 (1997), cert. denied, 522 U.S. 986, 118 S.Ct. 451, 139 L.Ed.2d 387 (1997).
Since this case is being remanded for a new trial, there is no need to discuss the claimed errors relating to jury selection, Appellant’s temporary absence from the courtroom during voir dire, or other matters which are unlikely to recur upon retrial.
Accordingly, the judgment of conviction and sentence imposed in this case are reversed and this case is remanded to the Rowan Circuit Court for a new trial in accordance with the contents of this opinion.
LAMBERT, C.J.; JOHNSTONE, and STUMBO, JJ., concur.
KELLER, J., dissents by separate opinion, with GRAVES and WINTERSHEIMER, JJ., joining that dissent.