IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: DECEMBER 15, 2022 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2021-SC-0465-MR
HARLAN EDDIE MCINTOSH APPELLANT
ON APPEAL FROM POWELL CIRCUIT COURT V. HONORABLE LISA HAYDEN WHISMAN, JUDGE NO. 20-CR-00101
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Harlan Eddie McIntosh was convicted following a jury trial of kidnapping in
the first degree (minor), rape in the first degree, robbery in the first degree, and
of being a persistent felony offender in the first degree (PFO I). While the jury
recommended an aggregate sentence of 150 years, the trial court imposed a
sentence of seventy years to comply with KRS1 532.110. McIntosh now appeals
as a matter of right2 raising four allegations of error. Following a careful
review, we affirm.
On July 13, 2020, 16-year-old H.T. and two of her male friends left
Cincinnati to travel to Red River Gorge to meet a friend of one of the boys for an
overnight campout. The trio arrived between 1:00 a.m. and 2:00 a.m. on July
1 Kentucky Revised Statutes.
2 Ky. Const. §110(2)(b). 14, and, being unable to locate the appropriate campsite because of the
darkness and their unfamiliarity with the area, they decided to sleep in the car.
After consuming a quantity of alcohol, the boys sought out an adult to
purchase more for them. They observed McIntosh leaning against a truck
nearby and engaged him in conversation. McIntosh agreed to buy the kids
more beer and got into the rear passenger seat of their car.
During the drive, McIntosh produced a firearm and ordered the driver to
pull to the side of the road. He then made the boys get out of the car and lie on
the ground, aggressively pointing the gun at H.T. to get them to comply with
his commands. McIntosh drove away with H.T. still in the car, telling her he
would release her when they returned to the lot where they had first met. After
driving for a period of time, McIntosh stopped the car and forcibly raped H.T.
on the hood of the vehicle. Afterwards, McIntosh dropped H.T. at a gas station
and drove away. H.T. reported the attack to a police officer who happened to
be parked across the street. McIntosh fled to Tennessee. The stolen vehicle
was located in Gatlinburg, Tennessee, later that same day and McIntosh was
found shortly thereafter in Pigeon Forge, Tennessee, carrying a backpack and
identification belonging to one of the boys.
A grand jury subsequently indicted McIntosh on charges of kidnapping
in the first degree (minor), rape in the first degree, robbery in the first degree,
possession of a handgun by a convicted felon, and PFO I. In December 2020,
one month after his arraignment, McIntosh was granted leave to act as his own
2 counsel (with hybrid counsel) following a Faretta3 hearing wherein the trial
court found him competent to represent himself. At the hearing, McIntosh
voiced his desire for a speedy trial. Throughout the pretrial period, McIntosh
was keenly focused on expediting the process and objected to any activity
which could delay his trial.
The following month, appointed counsel unsuccessfully sought to have
McIntosh released on bond to “get him in treatment” to prepare for trial. In
March 2021, defense counsel filed an ex parte request for funding to retain a
physician to complete an independent psychological evaluation.4 In late June,
McIntosh swallowed razor blades in an unsuccessful suicide attempt. The trial
court ordered McIntosh be sent to Kentucky Correctional Psychiatric Center
(KCPC) for a competency evaluation. McIntosh objected to the trial court’s
order, arguing an evaluation would delay his trial which was set for
approximately three weeks later. He was adamant he did not want a
continuance of any kind. The trial court assured McIntosh the evaluation
would be completed expeditiously and would not impact his trial date. KCPC
conducted the evaluation and found McIntosh competent to stand trial.
3 Faretta v. California, 422 U.S. 806 (1975).
4 For reasons unclear from the record, no action was taken on the motion until an order was signed on July 14, 2021, granting the requested funds. However, the trial court and defense counsel appear to have proceeded under the assumption the order had, in fact, been signed shortly after the motion seeking funding was filed. Although the order was not signed until close in time to the trial, it does not appear that failure was a hindering factor for the defense as evidenced by defense counsel’s affirmative statements that contact was made with a physician around the time the motion was filed, and the sole reason offered for any delay in obtaining an evaluation centered on “scheduling issues.”
3 At a subsequent hearing convened six days prior to trial, defense counsel
asserted an independent evaluation and a competency hearing were necessary.
Although competency had never been placed in issue, counsel asserted
because the trial court had sua sponte raised the matter, a competency hearing
was mandatory. The trial court was informed a defense expert could not
examine McIntosh until the middle of September, which was nearly five weeks
after trial was scheduled to begin. Defense counsel indicated discussions had
been ongoing with the expert since March 2021, but he had no availabilities in
his schedule prior to September. Because the examination could not be
completed prior to trial, defense counsel suggested a continuance was
necessary as a practical matter, although counsel specifically indicated she
was not seeking a continuance. McIntosh vehemently objected to any delay of
the impending trial. The trial court concluded no sufficient cause had been
shown necessitating a competency evaluation and hearing and denied the
defense motion.
Trial began on August 9, 2021, as scheduled. On the fourth day of trial,
McIntosh again swallowed razor blades and was transported to the hospital
where he refused treatment. Defense counsel sought a mistrial and reiterated
the need for a psychological examination. The trial court refused to declare a
mistrial and the case resumed the following day.
At the close of the case, as the jury was retiring to deliberate, McIntosh
stood up, threw a water bottle toward the panel, and yelled at an unknown
juror “When are you going to tell them you know me man? When are you going
4 to tell them you know me?” Security personnel immediately tackled McIntosh
and the jury was ushered out of the courtroom. Defense counsel’s motion for a
mistrial was denied, and McIntosh participated in the remainder of the
proceedings via video conference. The jury convicted McIntosh of kidnapping,
robbery, rape and being a PFO I, and recommended an aggregate sentence of
150 years’ imprisonment. The trial court reduced the sentence to the statutory
maximum of 70 years in compliance with KRS 532.110(c). This appeal
followed.
McIntosh raises several allegations of error in seeking reversal. First, he
asserts the trial court erred in refusing to grant a continuance to hold a
competency hearing and permit him time to obtain an independent
psychological evaluation. Second, he contends he was entitled to a mistrial
after he yelled at and threw a water bottle toward the jury. Third, McIntosh
argues the trial court erred in failing to exclude H.T.’s pretrial identification of
him. Next, he claims the trial court erroneously permitted the Commonwealth
to present rebuttal evidence that was more prejudicial than probative. Finally,
McIntosh alleges cumulative error. For the reasons that follow, and discerning
no reversible error, we affirm.
McIntosh first contends the trial court erred in not granting his request
for a continuance to have an independent psychological examination completed
and a competency hearing convened. He argues the trial court’s failure
resulted in identifiable prejudice as he was unable to pursue any mental health
defense or mitigation.
5 Our review of the record reveals McIntosh never requested the
continuance he now alleges was erroneously denied. In fact, quite the opposite
is true. A competency hearing was first requested less than one week prior to
trial but counsel made clear no request for a continuance was being made.
McIntosh voiced his desire that trial move forward as scheduled and opposed
any continuance. Defense counsel indicated their expert would be unable to
evaluate McIntosh in the short time remaining before trial. Although several
months had passed since requesting expert funding, apart from indicating the
preferred psychologist had not had any availability, no explanation was
proffered as to what efforts had been made to obtain the requested evaluation
or procure another expert who had scheduling availability. McIntosh reiterated
his opposition to delaying trial. The Commonwealth likewise opposed a
continuance.
The trial court stated McIntosh had made clear he did not desire a
continuance and confirmed with defense counsel no continuance was being
requested. It further noted competency had never before been raised, KCPC
had found McIntosh competent, and, citing Padgett v. Commonwealth, 312
S.W.3d 336, 348 (Ky. 2010), because no substantial evidence of incompetency
had been presented, a competency hearing was unwarranted. The trial court
then denied the only motion pending before it—a request for a competency
hearing.
6 This Court finds McIntosh’s present challenge was not preserved. He has
requested review for palpable error under RCr5 10.26. However, a review for
palpable error is not appropriate because McIntosh waived his claim to raise
this issue as error. Not only did the trial court not deny a requested
continuance, both McIntosh and his counsel affirmatively stated no such relief
was being requested.
As this Court stated in Quisenberry v. Commonwealth, 336 S.W.3d 19, 37
(Ky. 2011), “[t]hese alleged errors, therefore, were not merely unpreserved, they
were invited.” We further noted other courts had distinguished “forfeited
errors, which are subject to [palpable] error review, and waived errors, which
are not . . . [and] ha[ve] held that invited errors that amount to a waiver, i.e.,
invitations that reflect the party’s knowing relinquishment of a right, are not
subject to appellate review.” Id. at 38 (citing United States v. Perez, 116 F.3d
840 (9th Cir. 1997)). The rationale behind this rule is to prevent a defendant
from committing an act and later complaining on appeal the trial court erred to
his detriment. See Gray v. Commonwealth, 203 S.W.3d 679, 686 (Ky. 2006).
Simply stated, “[a] defendant cannot complain on appeal of alleged errors
invited or induced by himself[.]” Id. (quoting United States v. Lewis, 524 F.2d.
991, 992 (5th Cir. 1975)). “Generally, a party is estopped from asserting an
invited error on appeal.” Quisenberry, 336 S.W.3d at 37 (citing Gray, 203
S.W.3d at 686). Otherwise, a party would be permitted “to take advantage of
5 Kentucky Rules of Criminal Procedure.
7 an error produced by his own act.” Wright v. Jackson, 329 S.W.2d 560 (Ky.
1959); United States v. Myers, 854 F.3d 341, 355 (6th Cir. 2017) (“Challenges
to such invited errors are forfeited.”). Because McIntosh specifically asked that
no continuance be allowed and asserted multiple times that he wished for his
trial to be held as scheduled without further delay, he waived his right to claim
on appeal that he was entitled to a continuance.
Even were we to consider the merits of McIntosh’s claim, we discern no
error. As the trial court correctly noted, no substantial evidence of a lack of
competency was ever presented and the defense did not raise the issue until
the eve of trial and only after KCPC had issued a report finding McIntosh was
competent. Based on the utter lack of evidence of incompetency, the trial court
correctly determined no competency evaluation and hearing were required. See
Padgett, 312 S.W.3d at 347. Further, McIntosh was not deprived of the
opportunity to obtain an independent psychological evaluation. Funds were
requested to obtain such an examination, yet months passed without apparent
action. No indication was given of why a different doctor could not have been
procured in the months leading up to trial, especially when McIntosh had made
it very clear that he did not wish to delay his trial for any reason. If
competency was, in fact, going to be placed in issue, steps could have been
taken to obtain an independent evaluation sufficiently ahead of the scheduled
trial so that his competency could be fully and fairly explored McIntosh was
granted sufficient opportunity to pursue a mental health defense or mitigation
8 but failed to do so. Any alleged error cannot be laid at the feet of the trial court
for McIntosh’s own failure to act in a timely fashion.
Second, McIntosh argues the trial court should have granted a mistrial
after he threw a water bottle toward jurors and yelled at an unidentified juror
accusing him of hiding the fact of knowing McIntosh. He contends the
outburst created the manifest necessity of granting a mistrial because the jury
had been placed in such fear it could therefore not remain unbiased, resulting
in an unfair trial.
“It is well established that the decision to grant a mistrial is within the
trial court’s discretion, and such a ruling will not be disturbed absent a
showing of an abuse of that discretion.” Woodard v. Commonwealth, 147
S.W.3d 63, 68 (Ky. 2004) (citing Bray v. Commonwealth, 68 S.W.3d 375, 383
(Ky. 2002)). Additionally, “a mistrial is an extreme remedy and should be
resorted to only when there is a fundamental defect in the proceedings and
there is a ‘manifest necessity for such an action.’” Id. (quoting Bray, 68 S.W.3d
at 383). The cause of the need for mistrial “must be of such character and
magnitude that a litigant will be denied a fair and impartial trial and the
prejudicial effect can be removed in no other way.” Id. (quoting Gould v.
Charlton Co., Inc., 929 S.W.2d 734, 738 (Ky. 1996)).
“[W]here a defendant’s own intentional conduct creates the basis for the
allegations of error, we have long recognized an exception to general rules for
reasons that ‘[a] court must guard against allowing a defendant to profit from
his own wrong in this way.’” Meece v. Commonwealth, 348 S.W.3d 627, 711
9 (Ky. 2011) (quoting Illinois v. Allen, 397 U.S. 337, 345 (1970)). “[I]t is essential
to the proper administration of criminal justice that dignity, order, and
decorum be the hallmarks of all court proceedings in our country. The flagrant
disregard in the courtroom of elementary standards of proper conduct should
not and cannot be tolerated.” Id. (quoting Allen, 397 U.S. at 343). “This
reflects the interest of society in an orderly judicial process and is necessary to
prevent the paralysis of criminal proceedings and turning them into a farce.”
Scott v. Commonwealth, 616 S.W.2d 39, 43 (Ky. 1981).
Here, McIntosh had acted appropriately before the jury throughout the
multi-day trial and had actively assisted with his own defense. It was not until
the jury was retiring to decide his fate that McIntosh engaged in any
misconduct. He now attempts to blame his “spiraling mental health” for the
outburst and claims his actions irretrievably biased the jury against him.
Were such the rule, then, of course, a defendant could control the course of a trial by intentionally creating disturbances that caused juror excusals, necessitated continuances, and terminated trials, at their discretion, by mistrial. Such a rule would give to a defendant the right to control the trial, rather than the right to a fair trial. Thus, such a rule would not further the interests of society in an orderly judicial process—a process that is necessary to ensure that each and every person receives a constitutionally mandated fair trial.
Meece, 348 S.W.3d at 711-12. We discern no abuse of discretion in the trial
court’s refusal to grant a mistrial based on McIntosh’s own voluntary bad
behavior.
10 Next, McIntosh argues the trial court erred in denying his pretrial motion
to suppress H.T.’s in-court6 and out-of-court identification of him as the
perpetrator. He avers the actions of Kentucky State Police Detective Justin
Flannery surrounding H.T.’s out-of-court identification were unduly suggestive
and deprived him of due process. We disagree.
During a suppression hearing, the following facts were elicited. On the
day of the attack, Detective Flannery interviewed H.T. at the Kentucky River
Medical Center. During the interview, H.T. described her attacker and the
firearm he had used. Hearing these descriptions, Detective Flannery recalled a
robbery which had occurred a few days earlier and believed the same person
may have committed both crimes. McIntosh was already a suspect in the
robbery so Detective Flannery stepped out of H.T.’s room to request a photo
lineup be prepared which included McIntosh. Knowing the lineup would take
some time to assemble, Detective Flannery proceeded with the interview but
did not indicate to H.T. that he had a suspect in mind.
As he neared the end of the interview, Detective Flannery turned his
back to H.T. and accessed McIntosh’s Facebook profile from his mobile phone.
He indicated his intent was to determine if McIntosh had any distinguishing
characteristics about which he could question H.T. While he was looking at a
photograph of McIntosh on his phone, H.T. leaned up from the hospital bed
and said, “That’s him.” Upon further questioning by another detective present
6 McIntosh makes no argument regarding H.T.’s in-court identification of him as being erroneous. Thus, further discussion of that issue is unwarranted.
11 in the room, H.T. confirmed she was certain of her identification.
Approximately 10 to 15 minutes later, Detective Flannery received the photo
lineup and H.T. picked out McIntosh as her rapist.
Following the suppression hearing, both parties briefed the issues. In a
detailed, eleven-page order denying McIntosh’s motion, the trial court utilized
the two-part test set forth in Neil v. Biggers, 409 U.S. 188 (1972), to determine
whether H.T.’s identification of McIntosh was sufficiently infirm to violate
McIntosh’s due process rights. First, the trial court concluded H.T.’s “seeing”
of McIntosh’s photograph was unduly suggestive based on the circumstances.
Next, the trial court looked to the totality of the circumstances to determine
whether the identification was reliable in spite of the suggestive identification
procedure. In so doing, the trial court again looked to Neil for guidance.
[T]he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.
Id. at 199-200.7 After discussing each factor, the trial court determined there
was no substantial likelihood of a misidentification and the weight of the
factors was sufficient to overcome any suggestiveness in H.T.’s original
identification of McIntosh from the Facebook photo. Thus, suppression was
denied.
7Although not mentioned by the trial court, we adopted the Neil test in Savage v. Commonwealth, 920 S.W.2d 512, 513 (Ky. 1995).
12 McIntosh disagrees with the trial court’s assessment and urges us to
overturn his conviction based on what he believes was an impermissibly
suggestive procedure which resulted in an unreliable identification. We decline
to do so.
When reviewing the denial of a motion to suppress, a clearly erroneous
standard applies to a trial court’s factual findings and they will be deemed
conclusive if supported by substantial evidence. Davis v. Commonwealth, 484
S.W.3d 288, 290 (Ky. 2016).
We review a trial court’s ruling on a motion to suppress an out-of-court
identification for an abuse of discretion as we do a ruling regarding the
admissibility of any evidence. King v. Commonwealth, 142 S.W.3d 645, 649
(Ky. 2004). An abuse of discretion occurs when the trial court’s “decision [is]
arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”
Commonwealth v. English, 993 S.W.2d 941 (Ky. 1999).
When a defendant questions the validity of an out-of-court identification,
the trial court must first determine if that identification was unduly or
impermissibly suggestive. Grady v. Commonwealth, 325 S.W.3d 333, 353 (Ky.
2010). If it was not, then the analysis stops. Id. However, if the trial court
determines the procedure was infirm, as did the court below, it must then turn
to the second prong of the Neil test to determine whether an independent basis
of support exists for the identification. We agree with the trial court that the
five Neil factors were met.
13 The first Neil factor in the “totality of the circumstances” test is the
opportunity to view. H.T spent a considerable amount of time with her
assailant, as she was with McIntosh for over two hours, interacting with him at
the parking lot, in the vehicle, and outside the vehicle during the rape.
Although McIntosh argues it was too dark for H.T. to see her attacker and H.T.
remarked she closed her eyes during the encounter, it is clear she had ample
opportunity to observe him in the course of her ordeal. Nothing in the record
indicates McIntosh tried to conceal his identity or that his features were not
observable. The second factor is the witness’s degree of attention. As the trial
court noted, during the rape, H.T. would not have been a “casual observer, but
rather the victim of one of the most personally humiliating of all crimes.” Neil,
409 U.S. at 200. McIntosh’s bald assertion the stress and trauma of a rape
impairs the victim’s attention is without merit. The third factor is the accuracy
of prior descriptions. Before viewing McIntosh’s Facebook photo, H.T. gave a
detailed description of her attacker including hair color and length,
approximate height and weight, approximate age, location and amount of facial
hair, and skin tone. Although some of her descriptions were not entirely
accurate and she failed to mention any of McIntosh’s tattoos, the overall
description was a close match for McIntosh and any discrepancies were subject
to impeachment on cross-examination. The fourth factor is the level of
certainty at confrontation. H.T. never wavered in her identification. Upon
seeing the Facebook photo, she immediately and unequivocally said, “That’s
him” and responded “Yes” when asked if she was positive. The fifth factor is
14 time between the crime and the confrontation. The time period between the
rape and the identification was a matter of a few hours.
Analyzing the Neil factors, the totality of the circumstances indicate
H.T.’s identification was reliable, and there was no substantial likelihood of
misidentification, in spite of the suggestive nature of H.T.’s viewing of the
Facebook photograph. McIntosh’s due process rights were not violated. The
trial court did not abuse its discretion in permitting the out-of-court
identification to be presented to the jury.
For his fourth allegation of reversible error, McIntosh avers the trial court
erred in permitting the Commonwealth to introduce rebuttal evidence which
was more prejudicial than probative. Prior to trial, the Commonwealth
provided notice of its intent to introduce evidence of McIntosh’s alleged
involvement in an uncharged armed robbery which occurred less than two days
before the events at issue in this case. The trial court granted McIntosh’s
motion to exclude the evidence as the robbery was unrelated to the crimes
charged. However, during his testimony, McIntosh stated he did not pull a gun
on the victims and that he had found the pistol in a backpack after he stole
their vehicle.
The Commonwealth moved to provide rebuttal evidence from Detective
Flannery that McIntosh had possessed the handgun during the armed robbery
two days prior to stealing the vehicle. The trial court concluded McIntosh had
opened the door to the rebuttal but excluded any reference to an alleged
robbery as being more prejudicial than probative. It permitted the
15 Commonwealth to elicit testimony only that on a particular date, after viewing
a particular video, a person appearing to be McIntosh was in possession of
what appeared to be the same gun used in the instant crimes.
Detective Flannery testified he believed McIntosh possessed the gun on
July 12, 2020, based on his knowledge and review of camera footage. In a
follow-up question, the Commonwealth asked Detective Flannery if McIntosh
pulled a gun in the video. Defense counsel immediately objected and requested
a mistrial. The trial court concluded the question went beyond its ruling but
declined to order a mistrial. No admonition was requested. Detective Flannery
was subsequently permitted to confirm McIntosh had a gun in the video
footage.
McIntosh now claims the trial court erred when it failed to use neutral
language to describe the video footage, instead using the prejudicial and loaded
term “surveillance camera” which was subsequently copied by the
Commonwealth, and further erred in failing to take action to correct the
Commonwealth’s statement McIntosh “pulled a gun” in the “surveillance video.”
He asserts he was unduly prejudiced by these errors and reversal is required.
Again, we disagree.
Trial courts are granted broad discretion in determining the admissibility
of rebuttal evidence and we review for an abuse of that discretion. Peters v.
Commonwealth, 345 S.W.3d 838, 844 (Ky. 2011). “Rebuttal evidence is
evidence that ‘tends to counteract or overcome the legal effect of the evidence
for the other side.’” Fraser v. Miller, 427 S.W.3d 182, 184-85 (Ky. 2014)
16 (quoting Reserve Loan Life Ins. Co. v. Boreing, 157 Ky. 730, 163 S.W. 1085,
1087 (1914)).
McIntosh concedes he opened the door for rebuttal testimony to counter
his direct testimony claiming he had not possessed a gun prior to his
interactions with H.T. and her friends. Thus, McIntosh does not argue the trial
court erred in permitting the rebuttal. Rather, he posits the Commonwealth
exceeded the parameters laid down in the trial court’s ruling allowing the
rebuttal testimony, thus entitling him to relief.
As previously stated, whether to grant the extreme remedy of a mistrial is
within the trial court’s discretion, and we will not disturb such rulings absent
an abuse of that discretion. Woodard, 147 S.W.3d at 68. “[T]he trial court, in
its discretion, may choose to admonish the jury instead of granting a mistrial;
this is so because an admonition is presumed to cure a defect in testimony.”
Major v. Commonwealth, 275 S.W.3d 706, 716 (Ky. 2009). No request for an
admonition was put to the trial court and the failure to do so is generally
regarded as trial strategy. Ernst v. Commonwealth, 160 S.W.3d 744, 759 (Ky.
2005).
The trial court did not abuse its discretion in refusing to grant a mistrial
as that was not the appropriate remedy under the circumstances. Instead, the
appropriate remedy, had it been requested, would have been an admonishment
to the jury. Breaches of KRE8 404(b)’s rule against the admission of prior bad
8 Kentucky Rules of Evidence.
17 acts as character evidence are generally subject to admonitory cures. Boyd v.
Commonwealth, 439 S.W.3d 126, 132 (Ky. 2014). The sole reasoning behind
McIntosh’s request for a mistrial was the Commonwealth’s question posed to
Detective Flannery of whether McIntosh “pulled a gun,” which he asserts was a
thinly veiled reference to the robbery. Although the Commonwealth’s question
arguably impermissibly contravened the parameters of the trial court’s ruling,
it was not inflammatory or highly prejudicial, nor did the question lack a
factual basis. Since McIntosh did not request an admonition to the jury, “the
failure to give the admonition and the conduct complained of are not
considered prejudicial. The court properly refused to discharge the jury.”
Coulthard v. Commonwealth, 230 S.W.3d 572, 578 (Ky. 2007) (quoting Jackson
v. Commonwealth, 275 S.W.2d 788, 789 (Ky. 1955)).
Finally, McIntosh claims his convictions should be reversed due to
cumulative error. Under the cumulative error doctrine, “multiple errors,
although harmless individually, may be deemed reversible if their cumulative
effect is to render the trial fundamentally unfair.” Brown v. Commonwealth,
313 S.W.3d 577, 631 (Ky. 2010). Cumulative error has been found “only where
the individual errors were themselves substantial, bordering, at least, on the
prejudicial.” Id. (citation omitted). Here, as we have found no individual
errors, there can be no cumulative error.
For the foregoing reasons, the judgment of the Powell Circuit Court is
affirmed.
All sitting. All concur.
18 COUNSEL FOR APPELLANT:
Erin Hoffman Yang Jennifer Wade Department of Public Advocacy
COUNSEL FOR APPELLEE:
Daniel Cameron Attorney General of Kentucky
Kristin L. Conder Assistant Attorney General