RENDERED: JUNE 20, 2025 TO BE PUBLISHED
Supreme Court of Kentucky 2024-SC-0112-MR
JEREMY DANIEL MILLS APPELLANT
ON APPEAL FROM ALLEN CIRCUIT COURT V. HONORABLE MARK A. THURMOND, JUDGE NOS. 23-CR-00009 & 23-CR-00122
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT JUSTICE CONLEY
REVERSING AND REMANDING
This case is before the Court as a matter of right from Allen Circuit Court
upon the Appellant’s, Jeremy Mills, conviction for one count each of Unlawful
Transaction with a Minor (Controlled Substances, Victim Under 18); Second-
Degree Unlawful Transaction with a Minor (Illegal Sexual Activity); Possession
of Matter Portraying Sexual Performance by a Minor; and being a Persistent
Felony Offender in the First Degree. Mills was sentenced to twenty years in
prison. He argues before this Court three claims of error. First, a failure to
grant a directed verdict on all charges based on a mistake of age defense.
Second, a failure to dismiss the case when a Brady v. Maryland, 373 U.S. 83
(1963), violation occurred during trial. Finally, error in the sentencing phase
based on an erroneous instruction misidentifying an amended conviction as a felony and the Commonwealth’s cross-examination of Mills that exceeded the
legitimate scope of establishing a previous felony.
We agree a Brady violation occurred, and the trial court erred. We do not
agree, however, the trial court should have dismissed the case. Because the
trial court failed to remedy the tardy mid-trial disclosure of material evidence,
reversal is now warranted. We decline to discuss the other alleged errors and
remand to the Allen Circuit Court for further proceedings consistent with this
opinion.
I. Facts Mills met the victim, A.C., 1 through Facebook in December 2022. A.C.
told Mills she was eighteen at the time as she believed Mills could provide her
marijuana. The two communicated through Facebook, including Mills sending
a picture of his penis and propositioning A.C. for sex in exchange for money.
The two agreed to meet.
Mills picked up A.C. in front of her house at approximately 2:00 am on
December 16, 2022. Mills told her he was twenty years of age 2 and A.C. told
him she was eighteen years of age. When Mills drove her to his house, however,
A.C. testified she informed Mills she was in fact thirteen years of age. 3 At the
house, Mills and A.C. used methamphetamine and marijuana. Mills performed
1 We use initials to protect the identity of the victim.
2 Mills was in fact forty-three years old.
3 There is contrary evidence in the record as to when precisely A.C. informed
Mills of her true age. It either occurred when she got in the van or when the two got to Mills’ house (if it occurred at all). In either case, both occurred prior to sexual contact. 2 oral sex upon A.C. at least once, and she performed oral sex upon Mills twice.
The two also had vaginal sex. Mills recorded A.C. performing oral sex upon him
on his phone, as well as other sexual acts in numerous videos. A.C. testified
she did not want to have any kind of intercourse with Mills but could not
remember if she told Mills that. She did testify he compelled her to do so.
The next day A.C. was unable to leave and she testified she felt stuck
with Mills. She testified Mills had threatened her though she could not recall
the specific details; her memory had to be refreshed with the report from the
Children’s Advocacy Center to even recall a threat had occurred. She testified
Mills grabbed her by the throat, choking her, at least once but perhaps a
number of times. The two apparently had sex again. Mills then took them both
to Kentucky Fried Chicken to eat and visited a friend’s house. Mills and the
friend departed for a period of time. A.C. eventually told Mills she wanted to go
home. After mocking her, he did indeed take her home. A.C. immediately told
her family, and she was taken to Vanderbilt University Hospital. Dr.
Koscienski, who treated A.C. at the hospital, testified she did not report
strangulation, and no petechial bruising was observed. He also testified there
was no evidence of trauma to her vaginal or pelvic areas, and that A.C. had in
fact reported only consensual sex with her boyfriend.
Detective Jay Costello was the lead investigator. He testified to
interviewing Mills, wherein Mills admitted the two were together but denied any
intercourse. After showing Mills two messages from Facebook between he and
A.C. related to sex, Mills admitted the two had oral sex but nothing else. Mills
3 denied ever knowing A.C. was thirteen years old. During the interview he
pointed Det. Costello to A.C.’s photos online which, she conceded at trial, used
a filter; the presence of multiple piercings; and multiple tattoos, at least one of
which was real, to support his belief she was eighteen years of age. Mills did
admit that at one point he thought she was sixteen or seventeen, but dismissed
the thought because of her affirmation that she was eighteen.
Mills was indicted for numerous crimes but through the process of trial
and negotiation, the only counts remaining for the jury to decide were two
counts of first-degree unlawful transaction with a minor; one count of first-
degree sodomy; two counts of first-degree rape; two counts of first-degree
strangulation; one count of kidnapping; one count of possession of a matter
portraying a minor in a sexual performance; and the PFO count.
Mills maintained his defense at trial that he never knew A.C. was
underage. A.C. testified to the contrary as well as Edward Troutt, a man who
shared a jail cell with Mills for a week. We will further detail Troutt’s testimony
and his relation to the trial below in our analysis. It suffices for now to say
Troutt testified Mills confessed to him he knew A.C. was thirteen prior to the
two having sexual relations. Mills sought to undermine this testimony by
suggesting Troutt fabricated the confession after reviewing his case file, which
Troutt had access to when both lived in the same jail cell.
During jury deliberations, the jury sent a note requesting clarification
upon the word “knew” in the jury instructions. The parties agreed to direct the
jury to the definition of “knowingly” contained in the instructions. The jury
4 eventually returned a verdict as described above, acquitting Mills on the rape,
strangulation, and kidnapping charges.
II. Standard of Review The Supreme Court of the United States’ ruling in Brady did not create a
constitutional right to discovery in criminal cases but instead established the
minimal disclosure requirements a defendant is entitled to as a matter of Due
Process. “There is no question that a defendant's due process rights are
violated when a prosecutor, either in good or bad faith, knows of and fails to
disclose material evidence to the defense.” Nunley v. Commonwealth, 393
S.W.3d 9, 13 (Ky. 2013). There is no distinction between exculpatory evidence
and impeachment evidence, and the Commonwealth is charged with
constructive knowledge of all such evidence even if known only to the police
and not the individual prosecutor at trial. Strickler v. Greene, 527 U.S. 263,
280-81 (1999). “[R]egardless of request, favorable evidence is material, and
constitutional error results from its suppression by the government, ‘if there is
a reasonable probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different.’” Kyles v. Whitely, 514
U.S. 419, 433-34 (1995) (quoting United States v. Bagley, 473 U.S. 667, 682
(1985) (Blackmun, J., concurring)). Therefore, a Brady violation is established
when three elements are met: “[t]he evidence at issue must be favorable to the
accused, either because it is exculpatory, or because it is impeaching; that
evidence must have been suppressed by the State, either willfully or
inadvertently; and prejudice must have ensued.” Strickler, 527 U.S. at 281-82.
5 “[T]his Court reviews de novo whether the conduct of the Commonwealth
pertaining to the evidence at issue constitutes a Brady violation.”
Commonwealth v. Parrish, 471 S.W.3d 694, 697 (Ky. 2015). Under the third
element of “prejudice” courts have also used the term “materiality.” Jamison v.
Collins, 291 F.3d 380, 385 (6th Cir. 2002). Whether evidence is material is also
a legal conclusion reviewed de novo. Rosencrantz v. Lafler, 568 F.3d 577, 587
(6th Cir. 2009). “[A] showing of materiality does not require demonstration by a
preponderance [of the evidence] that disclosure of the suppressed evidence
would have resulted ultimately in the defendant's acquittal[.]” Kyles, 514 U.S.
at 434. “The question is not whether the defendant would more likely than not
have received a different verdict with the evidence, but whether in its absence
he received a fair trial, understood as a trial resulting in a verdict worthy of
confidence.” Id. Nor does our review include a sufficiency of the evidence test
but for the undisclosed evidence. Id. at 434. “A defendant need not
demonstrate that after discounting the inculpatory evidence in light of the
undisclosed evidence, there would not have been enough left to convict.” Id. at
434-35. Importantly, the harmless error test is inapplicable to Brady violations
of the sort alleged here. Id. at 435. 4
Finally, we note that this Court has never definitively confined its
understanding of Brady violations to only that evidence which is discovered
4 At least some federal circuits recognize the harmless error test still applies
when the Brady violation is predicated upon a prosecutor’s knowing use of perjured testimony. Gilday v. Callahan, 59 F.3d 257, 267-68 (1st Cir. 1995); Rosencrantz, 568 F.3d at 587. As that circumstance is not present here, we only note the issue in passing. 6 post-trial. In Parrish, we stated regarding Brady evidence that “when such
information is disclosed at trial and the defense actively cross-examines on it,
there is no Brady violation.” Parrish, 471 S.W.3d at 698 (emphasis added). The
same occurred in Nunley, 393 S.W.3d at 13. Thus, we left open the possibility
that tardy disclosures of exculpatory or impeachment evidence mid-trial which
leave no reasonable opportunity for the defendant to cross-examine the witness
could support a Brady violation. To that end, every federal circuit court has
held a Brady violation can be supported by tardy disclosures of evidence pre-
trial or during trial. 5 Although we are not obligated to follow federal circuits as
we are the Supreme Court of the United States, we cannot think of any reason
not to align ourselves with the universal practice of the federal circuits in this
instance.
III. Analysis The specific issue before the Court is whether the video interview of
Troutt, which was in the Commonwealth’s possession but not disclosed prior to
trial, violated Brady. The Commonwealth argues this issue is not properly
preserved. There is also the question of whether the trial court applied the
5 United States v. Mathur, 624 F.3d 498, 506 (1st Cir. 2010) (during trial); Leka
v. Portuondo, 257 F.3d 89, 100 (2d Cir. 2001) (pre-trial); United States v. Higgs, 713 F.2d 39, 44 (3d Cir. 1983) (day of trial); United States v. George, 95 F.4th 200, 209 (4th Cir. 2024) (during trial); United States v. McKinney, 758 F.2d 1036, 1050 (5th Cir. 1985) (during trial); United States v. Word, 806 F.2d 658, 665 (6th Cir. 1986) (during trial); United States v. O'Hara, 301 F.3d 563, 569 (7th Cir. 2002) (during trial); United States v. Tyndall, 521 F.3d 877, 882 (8th Cir. 2008) (during trial); United States v. Cloud, 102 F.4th 968, 979 (9th Cir. 2024) (during trial); United States v. Ahrensfield, 698 F.3d 1310, 1319 (10th Cir. 2012) (during trial); United States v. Knight, 867 F.2d 1285, 1289 (11th Cir. 1989) (during trial); United States v. Borda, 848 F.3d 1044, 1067 (D.C. Cir. 2017) (pre-trial). 7 appropriate analysis from its perspective mid-trial. Finally, there is the
standard Brady analysis from an appellate court’s perspective. We address
each issue in turn.
A. Preservation The Commonwealth contends Mills has not properly preserved his
argument that Brady applies since he only mentioned it briefly in passing and
never developed his argument fully; and, additionally, because the specific
relief requested to the trial court at the conclusion of his argument was
dismissal of the case with prejudice for prosecutorial misconduct. It is true “the
appellant has the duty to make timely objections and if he wants to preserve
his issues for review by this court the objections must be specific enough to
indicate to the trial court and this court what it is he is objecting to.” Bell v.
Commonwealth, 473 S.W.2d 820, 821 (Ky. 1971). This requirement is not a
formalistic anachronism. Objections that are specific as to the alleged problem
and requesting a specific remedy are necessary “in fairness to the party offering
the evidence and to give the trial court the opportunity to remedy any errors in
the proceedings.” Winstead v. Commonwealth, 283 S.W.3d 678, 688 (Ky. 2009).
Preservation is necessary but it is not a high bar. “[T]he litigant need only
object or otherwise bring the issue to the trial court's attention.” Miller v.
Commonwealth, 391 S.W.3d 801, 807 (Ky. 2013). He must request specific
relief, and we have found where the trial court only implicitly denies that relief,
there is preservation. Id.
8 Upon review of the record, we find this issue properly preserved. When
the Commonwealth informed the trial court of the interview and its failure to
disclose, Judge Thurmond was justly frustrated and laconically declared, “That
is a problem.” He then looked to defense counsel and asked if this was the first
she had heard of it, and if she had any position to take. Defense counsel
affirmed she was learning about the video simultaneously with the trial court
and said, “Your honor, that may be a Brady violation.” The trial court replied,
“That is a significant issue.” After opportunity to watch the video had been
given, oral arguments were heard, and Mills’ arguments focused on the
significance of the video as a source of impeachment to attack Troutt’s
credibility, which is a prong of Brady.
Specifically, Mills’ counsel argued there were three “inconsistencies” she
would have cross-examined Troutt upon had the video been known. First, that
Troutt in the video says Mills told him A.C. informed him she was a “juvenile,”
as opposed to his trial testimony that Mills said she informed him she was
thirteen. 6 Second, that Troutt failed to mention the circumstances of when and
where A.C. informed Mills of her true age in the video interview, whereas at
trial he testified Mills admitted she told him when she got into his van. Third,
Troutt’s allegation that Mills admitted to having anal sex with A.C. Mills argued
that while legal practitioners are generally aware that sodomy includes both
6 Defense counsel explained to the trial court that “juvenile” is a term that
encompasses all minors up to age 17, therefore, it was an inconsistency. Defense counsel also argued “juvenile” is not a normal term for teenagers to refer to themselves as but is more commonly used by lawyers and police officers.
9 anal and oral sex, the average person colloquially understands sodomy to refer
to anal sex. Thus, Mills argued the video in fact supports his contention that
Troutt reviewed his case file and fabricated the confession.
Additionally, the trial court specifically asked defense counsel to explain
how this interview, had it been available, would have altered her cross
examination. This goes directly to Brady’s materiality prong. After arguments
were heard, the trial court recessed for approximately ninety minutes to
consider the issue. When he returned, the trial court declined to dismiss the
indictment with prejudice as requested by Mills because he could not find any
evidence of bad faith on the part of the Commonwealth. The trial court
continued,
The real question to the court, in the court’s mind here, is whether there has been a violation of the rights under Brady v. Maryland which has occurred, which so prejudices the rights of the defendant to be able to make his defense that there creates a manifest necessity for a mistrial and perhaps dismissal of the charges.
The trial court answered in the negative. The trial court stated it viewed the
test of materiality as being if the video interview been disclosed prior to trial,
would it have altered the results of the proceeding. It held the results of the
proceeding were unlikely to have been altered had there been disclosure
because it believed Troutt was unlikely to change his testimony had he been
confronted with his statements made in the video.
Thus, we have all elements necessary for preservation: an objection on a
specific issue; with specific argument, so as to make the trial court aware; a
10 request for relief; and a ruling upon that objection granting or denying said
requested relief.
B. The Proper Test for Trial Courts for Tardy Mid-trial Disclosures Having demonstrated above the universal rule in the federal circuits that
Brady does apply to tardy disclosures of evidence pre-trial or mid-trial, we can
proceed to announcing the correct test trial courts are to apply when
confronted with such an occurrence. The trial court below believed it could not
conclude the video was material unless it could find the evidence would have
altered the results of the proceedings. The trial court made a finding that
Troutt’s testimony would not have changed, nor the outcome of the proceeding
been altered, had Troutt been confronted with his statements in the video,
therefore, the video was not material. This is an incorrect test for trial courts to
apply.
As recognized and elucidated upon by the Ninth Circuit, the typical
Brady test is “retrospective” and focuses on the reasonable probability of a
different outcome at trial. United States v. Cloud, 102 F.4th 968, 979 (9th Cir.
2024). That test “is a poor fit in cases like this one, where the suppression is
discovered during trial and before a ‘look back’ is possible.” Id. Because the
typical “retrospective definition of materiality is appropriate only in the context
of appellate review,” trial courts confronted with a tardy pre-trial or mid-trial
disclosure of evidence should confine themselves to analyzing “whether the
evidence is favorable to the defense, i.e., whether it is evidence that helps
bolster the defense case or impeach the prosecutor's witnesses.” Id. at 979
11 (quoting United States v. Olsen, 704 F.3d 1172, 1183 n.3 (9th Cir. 2013)). As
one federal district court has put it:
The only question before (and even during) trial is whether the evidence at issue may be “favorable to the accused”; if so, it must be disclosed without regard to whether the failure to disclose it likely would affect the outcome of the upcoming [or on-going] trial.
United States v. Safavian, 233 F.R.D. 12, 16 (D.D.C. 2005). This test is not a
high bar or heavy burden; it is satisfied “if there is indication that it may play
[an] ‘important role in uncovering admissible evidence, aiding witness
preparation, corroborating testimony, or assisting impeachment or rebuttal.’”
Id. at 15 (quoting United States v. Lloyd, 992 F.2d 348, 351 (D.C. Cir. 1993)).
Factors to aid this determination have also been identified.
[T]he materiality inquiry should evaluate the relative value of the withheld evidence “on the basis of the indictment, the pretrial proceedings, the opening statements, and the evidence introduced up to that point.” We also suggested that the materiality analysis could consider whether, had the evidence been timely disclosed, it might have altered the prosecution or defense strategy.
Cloud, 102 F.4th at 980 (quoting United States v. Bundy, 968 F.3d 1019, 1033
(9th Cir. 2020)) (internal citations omitted). The trial court’s instincts were
correct when it asked defense counsel to explain how her cross examination of
Troutt would have differed. But the trial court’s ultimate resolution was not
that it did not believe defense counsel’s cross examination would have
changed, but that Troutt’s testimony would not have changed. This is pure
speculation and is an inappropriate test for materiality from the trial court’s
perspective.
12 Moreover, because the evidence below would have been used for
impeachment purposes to attack Troutt’s credibility, that his testimony might
have changed is only one facet of a credibility analysis. As long recognized by
every court, “the primary purpose” of in-person testimony is so that a witness
must “stand face to face with the jury in order that they may look at him, and
judge by his demeanor upon the stand and the manner in which he gives his
testimony whether he is worthy of belief.” Campbell v. Commonwealth, 671
S.W.3d 153, 158 (Ky. 2023) (quoting Mattox v. United States, 156 U.S. 237,
242–43 (1895)). It is not merely the words a witness says that determines his
credibility, but his demeanor and his body language. 7 How Troutt would have
reacted non-verbally in cross-examination if confronted with his statements in
the video is also entirely speculative and cannot provide a firm foundation to
judge materiality.
Finally, “[t]he customary remedy for a Brady violation that surfaces mid-
trial is a continuance and a concomitant opportunity to analyze the new
information and, if necessary, recall witnesses.” United States v. Mathur, 624
F.3d 498, 506 (1st Cir. 2010); cf. Cloud, 102 F.4th at 981 (holding no abuse of
discretion when district court excluded witness and sanctioned attorneys for
Brady violation). Here the video was only ten minutes long and the trial court
7 Indeed, it is well-accepted that “[b]ody language is the single most important
credibility factor. Communication research has demonstrated time and time again that when a speaker's body language conflicts with his or her words, the observer will always believe the body language.” Noelle Nelson, Enhancing Credibility Through Body Language, Prac. Law., July 1994, at 73, 74.
13 did briefly postpone bringing in the jury to allow Mills and his lawyer to review
the video, evaluate how to proceed, and make arguments before the court.
When the Commonwealth suggested playing the video at trial, the trial court
correctly noted that Mills’ argument was the prejudice to his ability to fully
attack Troutt’s credibility on cross-examination; merely playing the video would
not be a remedy and would likely have inured to the Commonwealth’s benefit.
When the Commonwealth suggested recalling Troutt, however, the trial
court demurred. Troutt was incarcerated in Tennessee at the time and the trial
court apparently went through some difficulties (which it noted was really the
responsibility of the Commonwealth) to get Troutt to trial. The Commonwealth
does not point us in its briefing to what exactly these difficulties were, and the
trial court did not elucidate upon them during the hearing. We may safely
assume it involved some kind of negotiation with the custodial authorities in
Tennessee to arrange transportation. We have, however, rejected similar
arguments in the Confrontation Clause analysis where the Commonwealth
sought to justify remote testimony by citing the cost, $10,000 to $15,000, to
transport the witnesses. Faughn v. Commonwealth, 694 S.W.3d 339, 347 (Ky.
2024). We held, “a savings of ten to fifteen-thousand dollars cannot outweigh a
defendant's constitutional rights.” Id. There is no citation to the record of the
cost to transport Troutt to Allen County for trial. While the trial court and
Commonwealth may have found arranging that transportation difficult,
inconvenience “cannot outweigh a defendant's constitutional rights.” Id.
14 Therefore, the trial court erred by applying the typical retrospective
Brady test that is only appropriate for appellate courts. By applying such test,
the trial court actually engaged in a speculative inquiry that federal circuit and
district courts have condemned as inappropriate. The trial court should only
have made a legal conclusion as to whether the video evidence was exculpatory
to Mills or impeaching of a witness based on the factors identified above. If so,
then it should have recalled Troutt so the video could have been played and
cross-examination conducted. If that necessitated a continuance of trial, then
so be it.
C. Appellate Review under Brady of the Video Evidence Though the trial court erred in the test it applied, that does not demand
reversal if only because the proper test has never been explicitly endorsed by
this Court until now. This Court is still in a position to apply the traditional
Brady analysis appropriate for appellate review. The three elements are
favorability, suppression, and prejudice/materiality. Strickler, 527 U.S. at 281-
82. That the video was suppressed by the Commonwealth is not in doubt.
“There is no question that a defendant's due process rights are violated when a
prosecutor, either in good or bad faith, knows of and fails to disclose material
evidence to the defense.” Nunley, 393 S.W.3d at 13. The Commonwealth
possessed the video via the police, and the Commonwealth Attorney is charged
with constructive knowledge of evidence in the state’s possession. Id.; Kyles,
514 U.S. at 437 (“[T]he individual prosecutor has a duty to learn of any
favorable evidence known to the others acting on the government's behalf in
15 the case, including the police.”). The failure to disclose results in suppression
under Brady.
As to the first prong, we conclude the video is favorable as impeachment
evidence. Impeachment evidence is that which has “the potential to alter the
jury's assessment of the credibility of a significant prosecution witness.” Leka,
257 F.3d at 98 (quoting United States v. Avellino, 136 F.3d 249, 255 (2d Cir.
1998)). Mills maintained his defense at trial that he never knew A.C. was
underage. A.C. testified to the contrary as well as Troutt. Troutt testified Mills
confessed to him that he knew A.C. was thirteen years old, they had sex, he
gave her methamphetamine, and that she performed oral sex on him. Mills
sought to attack Troutt’s credibility by insinuating Troutt had access to Mills’
case file which was kept in the cell they shared. To summarize, Mills sought to
show Troutt fabricated his confession by reviewing Mills’ case file to learn the
charges against him, and then approached investigators with a concocted
confession based on what Troutt had seen in the file. 8
There was, however, no direct evidence this occurred. Mills could only
suggest it and Troutt obviously denied it. The video interview, however, shows
Troutt informing investigators that Mills confessed to him that he had anal sex
with A.C. There was never an accusation that anal sex had occurred from A.C.
either before or during trial; there was no medical evidence of such; and the
8 There is evidence in the record to suggest Troutt acted with ulterior motives.
Although he testified he had not received any promises from the Commonwealth in exchange for his testimony, he admitted he initially asked for shock probation. He also conceded that he reported Mills for bullying which got the latter transferred to a different jail. Thus, it is clear Mills and Troutt were not friendly. 16 sodomy charges against Mills were related to the allegation of oral sex with A.C.
The video interview therefore can plausibly be understood as supporting Mills’
argument that Troutt read through his case file, saw the charges against him,
and fabricated the confession based on that information. See Bundy, 968 F.3d
at 1033 (holding “[w]hether a jury would ultimately find the evidence
convincing and lead to an acquittal is not the measuring rod here.”).
Mills’ argument that sodomy is colloquially understood as anal sex
compared to its legal definition in Kentucky, which is more expansive, is not
implausible. Indeed, this Court has recognized “there is likely to be little
colloquial distinction in the mind of a lay juror between ‘anal rape’ and
‘sodomy.’” Behrens v. Commonwealth, 677 S.W.3d 424, 435 (Ky. 2023). In other
words, sodomy and anal sex are practically synonymous in the popular mind.
Even our laws reflect this for despite the variety of different definitions of
sodomy amongst the states, “[o]ne act that is almost universally prohibited by
sodomy statutes is anal intercourse[.]” In re B.H., 138 A.3d 774, 780 (R.I. 2016)
(quoting 70C Am. Jur. 2d Sodomy § 3 at 644 (2011)). Even our common law did
not consider oral sex to be sodomy but confined it to anal sex between men or
sex between a man and animal. Commonwealth v. Wasson, 842 S.W.2d 487,
491 (Ky. 1992) (quoting Commonwealth v. Poindexter, 118 S.W. 943, 944
(1909), overruled on other grounds by Calloway Cnty. Sheriff's Dep't v. Woodall,
607 S.W.3d 557 (Ky. 2020). 9 Therefore, we conclude the video is favorable
9 It is worth noting that in the last hundred years even this definition has
changed. The average person would not colloquially understand sex with an animal as sodomy but instead would use the term bestiality. 17 evidence to Mills for impeachment purposes based on his third argument made
to the trial court.
Finally, we conclude this evidence is material. We highlight again that “a
showing of materiality does not require demonstration by a preponderance that
disclosure of the suppressed evidence would have resulted ultimately in the
defendant's acquittal[.]” Kyles, 514 U.S. at 434. Our review does not take into
account the sufficiency of the evidence at trial, nor do we review for harmless
error. Id. The probability of a different result test under Brady focuses on
whether “he received a fair trial [with the absence of the evidence], understood
as a trial resulting in a verdict worthy of confidence.” Id. “[T]he probability that
a defendant must show does not have to be an ‘actual probability that the
result would have differed’; it may be ‘a merely theoretical (but still reasonable)
probability.’” Mathur, 624 F.3d at 504 (quoting United States v. Connolly, 504
F.3d 206, 213 (1st Cir. 2007)).
Two factors control our conclusion that without this evidence and the
ability to impeach Troutt based upon it Mills did not receive a verdict worthy of
confidence. First, the manifest fact that the jury did not believe A.C. in all her
testimony. The jury acquitted Mills on all counts of rape, strangulation, and
kidnapping. If the jury believed A.C. was a perfectly credible witness, then it
would not have done this. Second, the equally manifest fact that the jury was
debating the knowledge element of the crimes. We know without doubt the jury
requested the trial court give it further clarification on the word “knew”
contained in the jury instructions. We will never know exactly the contents of
18 the debate amongst the jury, but it is obvious Mills’ knowledge of A.C.’s true
age was a topic of discussion to such a degree that the jury desired
clarification. From our retrospective vantage point, it is sufficiently clear that
Troutt’s testimony was crucial to the Commonwealth to corroborate A.C.,
whose own credibility was called into question. It was, therefore, equally crucial
to Mills’ defense to undermine Troutt’s credibility. A reasonable juror could
view the video, listen to the cross-examination, and be persuaded by Mills’
argument that it is direct evidence tending to prove that Troutt fabricated Mills’
confession. Consequently, reversal of the convictions is the required remedy.
Bowling v. Commonwealth, 80 S.W.3d 405, 410 (Ky. 2002). Because we reverse
Mills’ convictions on this basis, we need not address his other claims of error
and decline to do so.
IV. Conclusion For the aforementioned reasons, we hold a Brady violation occurred
which calls into doubt our confidence in the verdict below. The trial court erred
by applying the typical Brady test that is only appropriate in an appellate court
context. Nonetheless, we conclude the trial court erred in its conclusion under
that test, as the video interview of Troutt, a crucial corroborating witness for
the Commonwealth, was favorable evidence; was suppressed by the
Commonwealth; and was material to the case as a reasonable juror could view
the video and believe it to be direct evidence supporting Mills’ argument
regarding Troutt’s alleged fabrication of his confession. Accordingly, Mills’
19 convictions are reversed, and we remand to Allen Circuit Court for further
proceedings consistent with this opinion.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Molly Mattingly Assistant Public Advocate
COUNSEL FOR APPELLEE:
Russell Coleman Attorney General of Kentucky
Courtney J. Hightower Assistant Attorney General