IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: JANUARY 18, 2024 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2022-SC-0278-MR
JORDAN G. ALFORD APPELLANT
ON APPEAL FROM SIMPSON CIRCUIT COURT v. HONORABLE MARK A. THURMOND, JUDGE NO. 18-CR-00305
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Following a jury trial, Jordan Alford was found guilty of wanton murder
by a Simpson County jury and sentenced to twenty years’ by the trial court in
accordance with the jury’s recommendation. Alford now appeals his murder
conviction as a matter of right, asserting errors regarding: (a) the exclusion of
certain “state of mind” evidence; (b) improper opinion testimony by an
investigating detective; (c) jury instructions allowing for rejection of his self-
protection defense if Alford was the “initial aggressor;” (d) the refusal of the trial
court to give a missing evidence instruction; and (e) the denial of Alford’s
motion for a directed verdict. Lastly, Alford argues that this Court should
determine that he was immune from prosecution based upon our
Commonwealth’s self-defense statutes. Finding none of his contentions
meritorious, we affirm his conviction and sentence. I. FACTUAL AND PROCEDURAL HISTORY
Damian Cook was nineteen years old when he was beaten to death by
Alford. Alford admitted striking Cook, but it was disputed whether Alford acted
in self-defense or to intimidate or enact revenge on Cook based on threats Cook
made to Alexis Olliphant and Willa Jean Davenport.
For three weeks, Cook had been living in a garage in a trailer park in
Franklin, Kentucky that belonged to the mother of a friend. His friend’s mother
had allowed him to stay there after Cook’s own mother had “put [him] out on
the street.”
Olliphant testified extensively about her interactions with Cook. She
explained that Cook had been her friend but had gotten “back on drugs.” She
heard that Cook had told people he was responsible for breaking into the trailer
she shared with her boyfriend, and he had taken their money, a watch, a
marijuana plant, and her boyfriend’s car.
During the late evening of August 6, 2018, Olliphant and her boyfriend
went out on the streets of their trailer park looking to confront Cook. When
they found him, Olliphant put him in a chokehold while her boyfriend hit him
repeatedly while wearing mixed martial arts (MMA) gloves. Following this
assault, Olliphant immediately started taunting Cook on Facebook messenger
with offensive language inviting Cook to come to her residence for another
confrontation. Cook ignored both the early messages and a phone call made by
Olliphant but finally started to respond with threats including stating he had
“30 rounds” implying he had a firearm he would use and messaged a picture of
2 himself in dark clothes, a hood and a bandana over his face. Olliphant decided
to tell her roommate Davenport about these threats. Davenport in turn called
her uncle Alford and spoke to him about what was happening. The next day,
August 7, 2018, Alford and his sister Amie Alford (who is Davenport’s mother),
drove from Tennessee to Franklin, Kentucky.
Olliphant testified that after Amie and Alford arrived, she showed them
the threatening messages from Cook and Amie and Alford armed themselves
with a stick and a bat from their car’s trunk. Olliphant further testified that the
three women (Olliphant, Davenport and Amie) together with Alford walked to
the garage where Cook was living but that she stayed up on the roadside with
Davenport while Amie and Alford went down the driveway to Cook’s garage.
Olliphant did not hear any dialogue and did not see Cook. She did however
hear “two loud thuds.”
Davenport testified that after Alford and Amie arrived at the mobile home
park, they discussed the messages Olliphant had received from Cook.
Afterwards, Alford was approached by a neighbor, Jimmy Hoskins, who spoke
with him. According to Davenport, Alford only knew Cook based on pictures
and messages that Olliphant showed Alford on her phone. According to
Davenport, Amie grabbed a “tire thumper” from her car’s back seat and Alford
had taken “a stick” from the trunk prior to being given a bat by Hoskins. At the
garage where Cook was living, Amie told Davenport and Olliphant to stay on
the road while she and Alford went towards the garage. Alford entered the
garage and Davenport stated that she could see Alford raise his arm, she heard
3 but did not see two strikes. After leaving the garage, Davenport testified that
Alford said, “I’ve been hit like that a few times and pulled through” and gave
the bat back to Hoskins.
Amie testified that Alford had informed her that Davenport and Olliphant
had been trying to reach her, they were being threatened by a neighbor in their
trailer park and Alford volunteered to go with her to Kentucky since he did not
want her going alone. Upon arriving in Kentucky, Amie found the two young
women to be distraught, stating they had been up all night in fear over the
messages. After Olliphant and Davenport pointed out the garage where Cook
was staying, Amie testified she told the young women to stay on the road.
According to Amie, the entrance to the garage was open wide enough for
someone to walk through; Alford went in first and told Amie to wait outside
because Cook might have a firearm. Amie stated she heard Alford tell Cook that
he had “f----ed with the wrong family.” Amie explained that she then went
inside the garage and saw Alford swing at Cook but did not see him strike Cook
because of where Alford was standing. She admitted that she struck Cook in
the leg while he was seated on a sofa and knocked a stereo off a table. While
walking back, Alford told Amie “I got him good a couple of times.” When
questioned regarding seeing a knife, that was later photographed at the scene
by police, Amie testified that she had not seen one.
Alford in turn testified that while he had looked at Cook’s Facebook page,
he had never met Cook and knew nothing of him other than what he was told
by Olliphant, Davenport and Hoskins. According to Alford, Hoskins told him
4 that Cook was known for having a knife or a gun on him and gave him the bat
to defend himself. Based upon what he knew at the time, Alford testified he
believed he would be in danger when he met with Cook, but he did not intend
to harm Cook.
Alford explained that when he arrived at Cook’s garage, Cook was seated
on a couch and Cook “waved him in.” Alford testified that after he asked Cook
to stop intimidating his family and stealing from them, Cook lunged off the
couch at Alford with a knife trying to kill him. In response, Alford struck Cook
with the bat. Alford did not believe he had hit Cook very hard and Cook didn’t
fall to the ground but sat back on the couch. After leaving Cook’s, Alford
testified he returned the bat to Hoskins.
None of these four participants contacted the police, called for medical
assistance, or went back to check on Cook’s condition. Amie and Alford drove
home to Tennessee. Approximately two hours later, two of Cook’s neighbors
found him on the floor of the garage. According to the men, Cook was breathing
but unconscious and it looked like he had been “beaten half to death.”
Detective Amos investigated the circumstances surrounding Cook’s death
and personally observed the position of Cook’s body in the garage and the
location of Cook’s wounds before Cook was transported to the hospital. He later
attended Cook’s autopsy.
External signs of Cook’s injuries included a large hematoma that
projected out approximately three inches from his skull and another on the
right side of the crown of his skull. Cook was transported to the Franklin
5 Medical Center and then flown to a trauma center in Nashville, but he never
regained consciousness. In Nashville he was pronounced brain dead and life
support was subsequently withdrawn on August 11, 2018. Cook’s autopsy
showed a centerline skull fracture, orbital bone fracture, bleeding on the brain
and herniation of the brain all resulting from blunt force injuries to the head.
Olliphant was charged with complicity to commit murder; she pled guilty
to first-degree wanton endangerment and was sentenced to five years’
imprisonment. Davenport was also charged with complicity to commit murder;
she pled guilty to first-degree wanton endangerment and was sentenced to five
years’ imprisonment. Amie was charged with murder but eventually pled guilty
to first-degree manslaughter and received a fifteen-year sentence.
A five-day jury trial on Alford’s charges was conducted and concluded on
March 15, 2022. The trial court instructed the jury on wanton murder and the
lesser included crimes of second-degree manslaughter and reckless homicide.
The trial court also instructed the jury on self-defense albeit with an “initial
aggressor” qualification. The jury found Alford guilty of wanton murder.
During sentencing, the jury was provided with a sentencing range of
twenty to fifty years’, or life. The jury recommended a sentence of twenty years’.
The Simpson Circuit Court sentenced Alford in accordance with this
recommendation with credit for time served.
6 II. LEGAL ANALYSIS
A. Did the trial court err by excluding certain “state of mind” evidence as hearsay? - Preserved
Alford asserts that the trial court committed reversible error on two
separate occasions by: (1) not allowing Alford to testify about what he had been
told about Cook by Hoskins, the man who had allegedly given him the bat
which he used to kill Cook; and, (2) not allowing him to admit a photograph
from Cook’s Facebook profile which showed him wearing a bandana around his
face.
Alford argues that this evidence should have been admitted as it went to
his state of mind and, given his claim of self-defense, he should have been
allowed to fully establish the basis for his fear of Cook and the reasonableness
of his actions. Prior to confronting him, the only things Alford knew about Cook
were what he had been told by others including Hoskins, the messages shown
to him, and, allegedly, the photograph on Cook’s Facebook profile.
1. Did the trial court err by excluding Alford’s testimony restating what he had allegedly been told by Hoskins? - Preserved
Alford was not able to call Hoskins as a witness as he died prior to the
trial. Therefore, Alford was the only one who could testify about the warnings
he received from Hoskins about Cook.
Alford testified that Hoskins had stated to him, “[l]ook man you should
probably take something with you,” that “[Cook] has been known to have a
knife or a gun, he is known to have a weapon on him,” and “[y]ou [Alford]
should probably take something with you.” 7 The Commonwealth objected to Alford’s obvious hearsay testimony, and
the trial court admonished the jury to disregard it. The trial court ruled that
Hoskins’s statements could only come in under Kentucky Rules of Evidence
(KRE) 803(3) to show the declarant’s (Hoskin’s) state of mind but that Alford
could testify to his own state of mind, and why he believed what he did, without
restating the hearsay statements made by Hoskins.
While Alford is correct that the impression Hoskins’s statements made
upon him may have helped form his opinion of Cook and made him fearful of
Cook, therefore making this hearsay conversation relevant to his defense of
self-preservation, we do not need to analyze the hearsay statements in that
context since, in this instance, there was ultimately no prejudice to Alford.
The trial court allowed Alford to testify on direct that, based on his
conversation with Hoskins concerning Cook, Alford believed he needed a
weapon to defend himself. Additionally, while being cross-examined by the
Commonwealth, Alford testified that Hoskins told him he should probably take
something for protection, handed Alford the bat, and told him he should take it
to protect himself from Cook. Following Alford’s written motion for a new trial
which contained this present argument, the trial court determined that given
the abundance of subsequent testimony that Alford provided to the jury
regarding what Hoskins had told him, and how he reacted to such information,
the issue of the original hearsay ruling and admonishment had become moot.
After considering Alford’s testimony, we agree that any error by the trial court
in precluding Alford’s hearsay testimony was harmless.
8 2. Did the trial court err in excluding a photograph of Cook which Alford alleged to have viewed on Cook’s Facebook profile? - Preserved
At trial, Alford attempted to introduce a photograph of Cook found on
Cook’s Facebook profile, which showed Cook wearing a bandana as a mask.
The Commonwealth objected on the basis that this photograph was hearsay.
Alford explained that because he had not met Cook earlier, he looked him up
on Facebook while he and his sister were traveling to Kentucky. Alford argued
he was not offering the photograph for the truth of the matter asserted but for
the fact that Cook was wearing the bandana as a mask, which confirmed
Olliphant and Davenport’s statements that he wore a mask, thus giving Alford
a basis for believing they were telling the truth. Alford also argued that Cook’s
“demeanor and his pictures caused [Alford] concern.”
The trial court ruled that the photograph constituted hearsay evidence
and for it to come in, the photograph would have to be reflective of the
declarant’s (Cook’s) state of mind, not the listener’s (Alford’s) pursuant to KRE
803(3). Determining that the photograph was not pertinent to Cook’s state of
mind, the trial court excluded its admission.
Alford now argues that the admission of the Facebook photograph would
have allowed the jury to infer: Alford should have reasonably been in fear of
Cook; Cook was prone to violence; Cook was armed; and/or Cook was more
likely to have been the initial aggressor necessitating Alford striking him in self-
defense.
9 Online social media has become an ever-present fact of life in
contemporary society serving to record, accurately or not, both everyday
activities and tragic events. As such, it can be a treasure trove of evidence for
use in both criminal and civil proceedings.
We must address this Facebook photograph in two ways, considering the
content of the photograph itself and as a piece of digital media associated with
Cook by being on his Facebook profile. For the latter issue, we must first
discern the photograph’s relevancy and then give consideration to its
authenticity.
a. Should the photograph have been admitted?
We initially consider whether the trial court was correct to determine that
the photograph constituted hearsay. Hearsay is defined in KRE 801(c) as “a
statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.”
KRE 801(a) defines statements as being: “(1) An oral or written assertion; or
(2) Nonverbal conduct of a person, if it is intended by the person as an
assertion.”
Photographs are generally not hearsay since they usually do not contain
or represent a “statement” or “assertion,” but instead are the memorialization
of a particular moment in time.
The next consideration is whether the photograph could properly be
admitted based on Alford’s justifications, that it was relevant for understanding
his state of mind when he confronted Cook and helped to justify Alford’s
10 actions. Evidence is admissible only if it is relevant. KRE 402. Evidence is
relevant if it is material and probative. KRE 401. It is material if it goes to a fact
of consequence in the case, and it is probative if it tends to make a matter of
fact even marginally more or less likely. Id. Furthermore, the standard for
admission of evidence is only whether it makes a relevant issue more or less
probable, not whether it compels a conclusion. Bush v. Commonwealth, 839
S.W.2d 550, 557-58 (Ky. 1992).
We have addressed these issues in specific regard to self-defense
matters.
“In self-defense cases, fear by the defendant of the victim is an element of the defense and can be proved by evidence of violent acts of the victim, threats by the victim, and even hearsay statements about such threats, provided that the defendant knew of such acts, threats, or statements at the time of the encounter.” Robert G. Lawson, The Kentucky Evidence Law Handbook, § 2.15[4][d] (4th ed. 2003). Such evidence is admissible because it is not offered to prove the victim’s character or to show action in conformity therewith, but to prove the defendant’s state of mind— his fear of the victim—at the time he acted in self-defense. Saylor v. Commonwealth, 144 S.W.3d 812, 816 (Ky. 2004).
Ordway v. Commonwealth, 391 S.W.3d 762, 779 (Ky. 2013) (footnote omitted).
The photograph’s effect on Alford is a valid consideration as it supported
his impression, mistaken or not, that Cook could be a threat and added
credence to his impression that Olliphant and Davenport were being truthful
about the threat that Cook posed. This provided context for Alford’s later
encounter with Cook and could have contributed to the lens through which
Alford viewed Cook. The trial court erred in not allowing the admission of the
11 photograph on hearsay grounds as it was not hearsay and was otherwise both
relevant and probative.
If the photograph’s content had been properly deemed admissible, the
next hurdle would have been a determination of whether the photograph was
actually Cook’s. To do that, material posted to social media must be properly
authenticated. 1
b. How should a social media photograph properly be authenticated prior to admission?
The next area of inquiry is the ability of the trial court to reliably
authenticate what is being proffered. Meaning, is the item presented (as
originally found online) actually what the party claims it is?
Traditional authentication rules apply to Facebook posts, whether such
posts consist of a profile page entry, message, photograph or video.
Under KRE 901, a document must be authenticated before it can be
admitted into evidence. While the proponent’s burden is slight, it is
nonetheless real and requires a showing “sufficient to support a finding that
the matter in question is what its proponent claims.” KRE 901(a); Johnson v.
Commonwealth, 134 S.W.3d 563 (Ky. 2004).
In our pre-internet opinion in Beason v. Commonwealth, 548 S.W.2d
835, 837 (Ky. 1977) (quoting 2 McCormick on Evid. § 212, 527 (1972)), we held
1 In the context of this case, unless there was a claim that the photograph was
not publicly accessible on Facebook, the necessity of authenticating the photograph would be limited. Alford’s alleged subjective fears did not depend on the photograph’s authenticity, only on its existence and how it depicted Cook.
12 “[i]f the offered item possesses characteristics which are fairly unique and
readily identifiable and if the substance of which the item is composed is
relatively impervious to change, the trial court is viewed as having broad
discretion to admit merely on the basis of testimony that the item is the one in
question and is in a substantially unchanged condition.” However, if the offered
evidence “is of such a nature . . . to be susceptible to alteration by tampering or
contamination, sound exercise of the trial court's discretion may require a
substantially more elaborate foundation.” Id. (quoting 2 McCormick on Evid.
§ 212, at 527 (1972)).
These principles still hold and as we have stated “are perhaps stronger
today, in light of technological advancements.” Brafman v. Commonwealth, 612
S.W.3d 850, 866–67 n. 67 (Ky. 2020). In Brafman we stated that “[t]rial courts
must understand how easy it is for anyone to present themselves as someone
they are not on social media, in anonymous online forums, or through cell
phone communication, or to use such technology to manufacture a profile in
someone else’s name” and “texts and chats can be selectively solicited or
deleted by the recipient at will.” Id.
Such concerns become even more imperative given the constant
advancement and ubiquity of software which now allows the most
unsophisticated of users to manipulate images with professional-quality
results. The emergence of artificial intelligence, with the capacity and initiative
to manipulate digital images—without user input—will only serve to further
13 compromise our determinations of authenticity unless such advancements are
both recognized and addressed by our courts.
When it comes to materials found on the web, one commentary on
Federal Rules of Evidence 901, which essentially mirrors our own KRE 901,
suggests:
To authenticate a printout of a web page, the proponent must offer evidence that: (1) the printout accurately reflects the computer image of the web page as of a specified date; (2) the website where the posting appears is owned or controlled by a particular person or entity; and (3) the authorship of the web posting is reasonably attributable to that person or entity. Evidence that may corroborate these points could include testimony of others who saw the posting on the website, continuation of the posting on the website so that it is available to be seen by the court, or evidence that the party to whom the posting is attributed made similar postings or published the same information elsewhere.”
Christopher B. Mueller and Laird C. Kirkpatrick, 5 Federal Evidence § 9:9 (4th
ed.) (updated May 2014).
While it does not appear that either the trial court or the Commonwealth
questioned whether or not the Facebook profile photograph of Cook was
authentic, care must be taken when a court is faced with items which allegedly
were taken from the internet.
c. The error in excluding the photograph was harmless as it was cumulative of other admitted evidence
The photograph, if properly authenticated as existing online and being
viewed by Alford, should have been admitted not for any message it may have
communicated, but for the effect the photograph had upon Alford. The
photograph should have been considered relevant given Alford’s testimony that
he acted in self-defense and his viewing of the arguably threatening photograph 14 occurred in proximate time to his encounter with Cook. However, even
assuming Alford could have, if given opportunity, properly authenticated the
photograph as being online and available to viewing by him, we can still not
find reason to set aside his verdict because the photograph was cumulative.
Regarding the issue before the jury of Alford’s alleged fear of Cook, and
his apprehension at confronting him, any error by the trial court in refusing to
allow the Facebook profile photograph was harmless. Alford was able to put on
his full theory of defense: Davenport and Olliphant were in fear of Cook, Cook
had sent messages and a photograph that Olliphant found threatening, Alford
was apprehensive of meeting Cook because of what Davenport, Olliphant and
Hoskins had told him, Alford had feared Cook based upon what he saw on
Cook’s Facebook profile, Hoskins was the source of the bat used by Alford, and
Alford had reason to believe Cook was possibly armed. Even without placing
Cook’s Facebook profile into evidence, Alford was able to testify that his viewing
of the profile made him apprehensive of Cook.
In sum, while the trial court erred in excluding the photograph as
hearsay when it should have appropriately been admitted for its effect on
Alford, the excluded evidence was cumulative, and its exclusion was not so
prejudicial to Alford as to necessitate a retrial.
B. Did the trial court err by allowing a detective to testify regarding matters where he was not qualified to give an opinion? - Partially Preserved
Alford next claims that on four separate occasions, Detective Amos gave
impermissible testimony when he: (1) opined that Cook was sitting when
15 struck; (2) opined Olliphant’s boyfriend could not have struck the fatal blow
while wearing MMA gloves; (3) described what defensive wounds are; and (4)
answered hypotheticals involving when self-defense was appropriate.
In the first instance, the Commonwealth asked the investigating detective
if, “based on your training and experience would Jordan Alford be able to strike
[Cook] on the top of his head while he was standing?” Alford’s counsel objected
that this called for expert testimony. The trial court overruled the objection but
asked that a foundation be laid. Detective Amos was asked if he had any
training where he “would be able to determine where someone would strike
somebody else based upon their heights?” Detective Amos responded in the
affirmative and stated that he had at the police academy during baton training.
Alford did not renew his objection, nor did he ask for a Daubert 2 hearing.
The Commonwealth then restated his initial question and asked “based
on your training and experience, and looking at this investigation would
[Alford] be able to strike [Cook] on the top of his head while [Cook] was
standing?” Detective Amos answered, “no.”
KRE 702 “permit[s] opinion evidence from experts providing ‘scientific,
technical, or other specialized knowledge’ if it will ‘assist the trier of fact’ in
understanding the evidence or determining a fact in issue.” Gray v.
Commonwealth, 480 S.W.3d 253, 269 (Ky. 2016). In order to testify as an
2 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)
16 expert, “a witness [must be] qualified as an expert by knowledge, skill,
experience, training, or education[.]” KRE 702.
In Alexander v. Swearer, 642 S.W.2d 896, 897 (Ky. 1982), we said that
“[e]ssential fairness in a trial requires that the trial court carefully scrutinize
the qualifications and the testimony of the officer before permitting his opinion
testimony to be submitted to a jury[,]” and in this instance we are satisfied here
that Detective Amos’s qualifications and personal observations were sufficient
to allow him to testify as to what he believed were the relative positions of the
two parties at the time Cook was struck based upon what he saw regarding the
position of Cook’s body, the location of Cook’s head wounds, and the relative
heights of Alford and Cook. Furthermore, such testimony falls more towards
general lay testimony where a witness would understand what wounds can be
inflicted based on whether the person is sitting or standing. Even were we to
determine that Detective Amos’s testimony in this area had been expert
evidence, the trial court was not requested to hold a Daubert hearing before the
testimony was admitted and such was not required here. 3
Next, the trial court also overruled Alford’s objection that there was a
lack of foundation to Detective Amos testifying that he did not believe the MMA
3 See City of Owensboro v. Adams, 136 S.W.3d 446, 451 n.1 (Ky. 2004)
(“Nevertheless, a court need not always hold a Daubert hearing even when the evidence is offered in a jury trial, Clay v. Ford Motor Co., 215 F.3d 663, 667 (6th Cir. 2000), though it should do so when admissibility is not obvious from the record. Commonwealth v. Christie, Ky., 98 S.W.3d 485, 488 (2002).”); Tharp v. Commonwealth, 40 S.W.3d 356, 367-68 (Ky. 2000) (holding that trial court’s failure to conduct Daubert hearing sua sponte is not palpable error).
17 gloves worn by Olliphant’s boyfriend—when he had previously assaulted
Cook—could have caused Cook’s fatal injuries.
The Commonwealth argues that the detective’s opinions were admissible
because each was rationally based upon his own perceptions drawn from his
personal investigation of the crime. Alford argues that Detective Amos was not
qualified to give his opinions on matters actually falling under KRE 702.
However, in this instance we determine that Detective Amos’s testimony
as to whether the MMA gloves worn by Olliphant’s boyfriend could have caused
Cook’s ultimately fatal injuries would more reasonably fall under the detective’s
generalized capacity to testify. “The degree to which a witness may give an
opinion, of course, is predicated in part upon whether and the extent to which
the witness has sufficient life experiences that would permit making a
judgment as to the matter involved.” Mondie v. Commonwealth, 158 S.W.3d
203, 212 (Ky. 2005) (citing Richard H. Underwood & Glen Weissenberger,
Kentucky Evidence 2004 Courtroom Manual 343 n. 24 (Anderson Publishing Co.
2003).
Alford presented no testimony and no evidence whatsoever that
Olliphant’s boyfriend’s act of hitting Cook while wearing padded MMA gloves,
the day before Alford repeatedly struck Cook in the head with a bat, could have
been the actual cause of the horrific head injuries or the brain injuries that
resulted in Cook’s death. There was no issue presented in this matter as to
who, or what instrument, caused Cook’s death and we will not entertain such
new notions on appeal.
18 Next, Alford argues that it was improper for the trial court to allow the
detective to offer testimony regarding defensive wounds. On direct examination,
the Commonwealth asked Detective Amos what defensive wounds were to
which Alford’s counsel objected stating that a foundation based on his training
would first need to be laid. The trial court overruled the objection and Detective
Amos testified that defensive wounds were wounds someone could sustain if
they were being attacked and stuck their hands up to stop the attack resulting
in injuries to their hands or arms. Detective Amos further testified that when
he attended Cook’s autopsy, he saw no defensive injuries. No objection was
made to the detective’s testimony as to whether he observed defensive wounds
on Cook’s body.
We find no error in the trial court allowing the detective’s limited
testimony regarding what constitutes defensive wounds and further find no
error in Detective Amos testifying whether Cook’s body showeds signs of
defensive wounds. Both of these areas of inquiry fall readily within the training,
experience, and personal observations of this detective and no further
qualifications were necessary.
Lastly, Alford argues that Detective Amos’s opinions in response to
hypothetical questions posed regarding self-defense were improper. On re-
direct, the Commonwealth asked the detective, “[i]f someone comes into the
homeowner’s home, one with a baseball bat and the other with a stick or some
sort of wooden object, would, in that scenario, would the homeowner have the
right to protect themselves?” No objection was made by Alford and the detective
19 agreed the homeowner would have that right. The Commonwealth then asked,
“[i]f the homeowner had protected themselves in that situation would the
attacker have a right to self-defense?” At this juncture Alford’s counsel did
object stating the Commonwealth was getting “off” and was venturing into
“legal stuff.” The trial court overruled this objection because Alford’s own
counsel had been allowed to ask similar types of questions regarding self-
defense on cross examination. The detective went on to answer that if an
armed attacker were in a homeowner’s house and the homeowner was
defending himself, “then the attacker would not have the self-defense right.”
We agree with the trial court that Alford “opened the door” to this line of
questioning by the Commonwealth when his own counsel asked the detective
hypothetical questions during cross-examination about self-defense including
regarding a scenario where one person was lunging at another with a knife. See
Commonwealth v. Stone, 291 S.W.3d 696, 701-02 (Ky. 2009).
On appeal, Alford argues that Detective Amos’s testimony constituted
legal opinions which invaded the province of the jury. That is true and we do
find the entire line of questioning, by both Alford and the Commonwealth, to
have been inappropriate and unnecessary to the jury’s understanding of the
issues or the law in our Commonwealth. It is not the province of law
enforcement officers to inform the jury as to what our laws are or how they are
to be applied. Tamme v. Commonwealth, 973 S.W.2d 13, 32 (Ky. 1998).
We note that the jury was correctly instructed by the trial court
regarding the right to self-defense, the detective’s opinions regarding the right
20 to self-defense, although abridged, were not inconsistent with our law or the
instructions given to the jury, and the detective’s cursory responses to the
hypothetical questions posed did not indicate that Alford was guilty or that the
detective had himself determined Alford to be guilty.
While it would have been proper to exclude the detective’s hypothetical
testimony regarding what actions constitute either lawful or unlawful self-
defense, we may confidently determine here that neither the questioning nor
the detective’s responses substantially swayed the jury’s judgment in this
matter and we are satisfied that the error was harmless. Winstead v.
Commonwealth, 283 S.W.3d 678, 688-89 (Ky. 2009).
C. Did the trial court erroneously instruct the jury? - Preserved
Alford argues that the trial court erred by giving the jury an instruction,
in addition to a self-defense instruction, which allowed for the jury to reject his
defense by finding him the initial aggressor. In this case, the trial court
instructed the jury on the allowable defense of self-protection in accord with
KRS 503.050 but added the initial aggressor qualification found in KRS
503.060(3) which states:
Notwithstanding the provisions of KRS 503.050, the use of physical force by a defendant upon another person is not justifiable when:
(3) The defendant was the initial aggressor, except that his use of physical force upon the other person under this circumstance is justifiable when:
(a) His initial physical force was nondeadly and the force returned by the other is such that he believes himself to be in imminent danger of death or serious physical injury; or
21 (b) He withdraws from the encounter and effectively communicates to the other person his intent to do so and the latter nevertheless continues or threatens the use of unlawful physical force.
“Instructions must be based upon the evidence and they must properly
and intelligibly state the law.” Howard v. Commonwealth, 618 S.W.2d 177, 178
(Ky. 1981). “When the question is whether a trial court erred by: (1) giving an
instruction that was not supported by the evidence; or (2) not giving an
instruction that was required by the evidence; the appropriate standard for
appellate review is whether the trial court abused its discretion.” Sargent v.
Shaffer, 467 S.W.3d 198, 203 (Ky. 2015), overruled on other grounds by Univ.
Med. Ctr., Inc. v. Shwab, 628 S.W.3d 112 (Ky. 2021). “The test for abuse of
discretion is whether the trial judge’s decision was arbitrary, unreasonable,
unfair, or unsupported by sound legal principles.” Commonwealth v. English,
993 S.W.2d 941, 945 (Ky. 1999).
Alford cites to our opinion in Conley v. Commonwealth, 599 S.W.3d 756
(Ky. 2019), for the proposition that the initial aggressor instruction should not
have been given because there was no evidence presented at trial that Alford
was an initial aggressor. In Conley, unlike in this case, there was simply no
evidence, circumstantial or otherwise, of the defendant being an initial
aggressor.
In Stepp v. Commonwealth, 608 S.W.2d 371 (Ky. 1980), this Court
decided that in determining whether a limitation to a self-defense instruction is
22 proper, the trial court must consider the circumstances surrounding the
incident as a whole:
It is not every assertion of such belief that is adequate to support a plea of self-defense. It is the whole circumstances which surround the incident that must be considered by the trial judge in deciding whether an instruction on self-defense is proper or whether an instruction on self-defense with limitations is proper. We have held that before such qualifying instructions are proper there must of course be evidence to justify it. In other words, the trial judge must find as a matter of law that there is sufficient evidence to justify such limitations before instructing the jury.
Id. at 374 (citing Mayfield v. Commonwealth, 479, S.W.2d 578 (Ky. 1972); Crigger v. Commonwealth, 225 S.W.2d 113 (Ky. 1949)).
For a defendant to be the initial aggressor, the defendant must use
physical force prior to any act of purported self-protection. KRS 503.060(3)(a).
Alford claims the Commonwealth presented no evidence that he used physical
force on Cook prior to Cook, allegedly, lunging towards him with a knife, and
therefore there was no evidence to support giving a limiting initial aggressor
instruction. We disagree. It is undisputed that Alford armed himself prior to his
meeting with Cook and approached the garage, without any advance notice to
Cook, intending to confront him. Alford never mentioned being assaulted by
Cook at the scene of the incident. The only evidence of Cook lunging at Alford
came from Alford’s own testimony. There was ample evidence from which a jury
could, and ultimately did, determine that Alford was not acting in self-defense
and was the initial aggressor when he repeatedly struck Cook. Therefore, the
trial court did not act erroneously in providing the qualifying instruction.
23 D. Did the trial court err in denying Alford a missing evidence instruction regarding a knife found at the scene? - Preserved
Alford tendered a “missing evidence” instruction to the trial court relative
to a knife which had been photographed at the scene, but which was not
collected by law enforcement. Generally, we review a trial court’s decision to
provide certain jury instructions under an abuse of discretion standard and
reverse only if its decision is arbitrary, unreasonable, unfair or unsupported by
sound legal principals. Downs v. Commonwealth, 620 S.W.3d 604 (Ky. 2020).
The knife in question was a large folding knife that, rather uniquely, had
a blade which was longer than the grip into which the blade folded. Therefore,
the knife, even when folded as this one was, would be dangerous and able to
stab a person up to the area of the blade which was not encased in the handle.
A paramedic witnessed Cook on the ground beside his sofa and found
the folded knife under Cook when he was rolled onto a backboard. A trooper
later photographed the knife and noted its presence in a report but did not
collect it into evidence. At trial, the trooper explained that if there was no
evidence an item had been used in a crime, it would not be collected. At the
time of his investigation, there was only a badly beaten victim and Alford had
yet to allege that he had defended himself from a knife attack. The lead
detective in this case also testified that law enforcement would have been
looking for a weapon that could have caused Cook’s injuries, not a knife or a
gun, since Cook had only blunt force wounds.
Despite not having the knife to show the jury, Alford was able to
introduce two separate photographs of the knife taken at the scene. 24 Alford sought a lost or destroyed evidence instruction which stated:
If you find that law enforcement intentionally failed to preserve the knife, as seen in the Defendants Exhibit “F”, as evidence in this case, or that law enforcement knew or should have known that it could have been evidence in this case, you may infer, but are not required to infer, that this evidence was unfavorable to the Commonwealth and favorable to the Defendant.
The trial court rejected the instruction believing that law enforcement
may have been negligent but did not exhibit bad faith and noted the jury was
able to view photographs of the knife in the context of Alford’s testimony.
Following Alford’s conviction, he made a motion for a new trial, adding to
his argument that he lost the opportunity to have the knife tested for DNA or
fingerprints.
We only find a due process violation regarding missing or destroyed
evidence when “evidence was intentionally destroyed by the Commonwealth or
destroyed inadvertently outside normal practices”. Estep v. Commonwealth, 64
S.W.3d 805, 809 (Ky. 2002) (citing Tamme v. Commonwealth, 579 S.W.2d 51,
54 (Ky. 1988)). Accordingly, a failure to preserve potentially useful evidence
does not rise to a violation of due process absent a showing that law
enforcement acted in bad faith. Collins v. Commonwealth, 951 S.W.2d 569, 572
(Ky. 1997).
On appeal, Alford recognizes our precedent but argues that this standard
is too stringent and the alleged negligence of law enforcement in failing to
secure and preserve the knife “critically prejudiced” him. There very well could
be instances where negligent police investigation, and their failure to secure
25 obvious or relevant evidence, could work just such an injustice to a defendant
as to require either a missing evidence instruction or reversal. However, due
process does not require such an outcome here.
The knife was photographed, those photographs were seen by the jury,
and Alford was able to show that the knife was dangerous even while folded. It
was also acknowledged that the knife was in close proximity to Cook, under his
body, when he was found, giving ample credence to Alford’s testimony that
Cook had it in his hand and later collapsed onto the knife after being struck by
Alford. Since there was no testimony questioning who owned the knife, and no
testimony that either Alford or Amie possessed a knife when they entered
Cook’s garage, there was no reason to presume the knife belonged to anyone
other than Cook. Furthermore, to the extent that law enforcement was
negligent in not securing the knife, such negligence was practically invited by
Alford since he neither summoned medical assistance nor informed law
enforcement that Cook had lunged at him with a knife and initiated their
melee. Under the circumstances, the trial court did not commit an abuse of
discretion in refusing to provide the instruction.
E. Was Alford entitled to a directed verdict? - Preserved.
Alford argues that the trial court erred when it denied his motion for a
directed verdict as to the wanton murder charge alleging that “a reasonable
juror could not conclude beyond a reasonable doubt that Alford was the initial
aggressor and attacked Cook for a purpose rather than acting out of fear for his
life.”
26 In considering whether a motion for directed verdict should be granted,
“[t]he trial court must draw all fair and reasonable inferences from the evidence
in favor of the party opposing the motion, and a directed verdict should not be
given unless the evidence is insufficient to sustain a conviction.”
Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky. 1983).
As stated in Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991):
If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.
On appeal, the denial of a directed verdict motion is reviewed to
determine whether “under the evidence as a whole, it would be clearly
unreasonable for a jury to find guilt, only then is the defendant is entitled to a
directed verdict of acquittal.” Lamb v. Commonwealth, 510 S.W.3d 316, 325
(Ky. 2017) (quoting Benham, 816 S.W.2d at 187).
KRS 507.020(1)(b) provides in relevant part that a person is guilty of
wanton murder when: “[U]nder circumstances manifesting extreme indifference
to human life, he wantonly engages in conduct which creates a grave risk of
death to another person and thereby causes the death of another person.”
The jury was further properly instructed that to engage in wanton
conduct, one must be aware of and consciously disregard “a substantial and
unjustifiable risk that the result will occur or that the circumstance exists. The
risk must be of such nature and degree that disregard thereof constitutes a
27 gross deviation from the standard of conduct that a reasonable person would
observe in the situation.” KRS 501.020(3).
A wanton mental state alone is not enough to justify a conviction under
KRS 507.020(1)(b) for wanton murder, as evidence of further circumstances
manifesting extreme indifference to human life must accompany an actor’s
wantonness. Brown v. Commonwealth, 174 S.W.3d 421, 425 (Ky. 2005). This
element has been described as “aggravated wantonness.” Graves v.
Commonwealth, 17 S.W.3d 858, 863 (Ky. 2000).
The jury here could infer Alford’s intent “from the act itself or from the
circumstances surrounding it.” Talbott v. Commonwealth, 968 S.W.2d 76, 86
(Ky. 1998). Alford was also “presumed to intend the logical and probable
consequences of his conduct,” and his intent could also be inferred from his
actions preceding and following the charged offense. Stopher v. Commonwealth,
57 S.W.3d 787, 802 (Ky. 2001). Based upon the evidence presented, including
Alford’s own testimony, we cannot say that the jury was unreasonable in
concluding that Alford’s conduct manifested an extreme indifference to human
life. The Commonwealth produced ample evidence of substance proving that
Alford sought out Cook while armed with a bat, struck Cook at least twice in
the head with the bat, and then left him unattended and unaided while his
brain swelled from the blows ultimately resulting in his death. Alford
disregarded the grave risk of injury or death associated with his actions, and
we find that the trial court did not err in denying Alford’s motion for a directed
verdict on wanton murder.
28 F. Was Alford entitled to statutory immunity? - Unpreserved
Lastly, Alford argues that he is entitled to immunity from criminal
liability under our Commonwealth’s self-protection statutes. This error is
unpreserved and Alford therefore requests palpable error review which would
require that this Court find the error resulted in manifest injustice.
Alford asserts that he “subjectively believed that his life was in danger”
and cites to Hatcher v. Commonwealth, 310 S.W.3d 691, 700 (Ky. App. 2010),
for the proposition that “the doctrine of self-protection turns upon a
defendant’s subjective belief of the need to use force[.]”
According to Alford, “the totality of the circumstances and the
‘probabilities’ support the conclusion that [Alford] was placed in sudden mortal
fear for himself, that he responded reasonably by using a bat in self-defense,
considering the size of [Cook], his reputation for always having a knife or a
gun, and the apparent threats of the knife before.” In sum, Alford recounts the
details of the defense he offered at trial and asks us to reject the
Commonwealth’s evidence and the jury’s determination.
KRS 503.085 states in relevant part:
(1) A person who uses force as permitted in KRS 503.050, 503.055, 503.070, and 503.080 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom the force was used is a peace officer, as defined in KRS 446.010, who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law, or the person using force knew or reasonably should have known that the person was a peace officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.
29 (2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1) of this section, but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.
In Commonwealth v. Lemons, 437 S.W.3d 708, 715 (Ky. 2014), we
subsequently determined that a de novo standard of review is not appropriate
in a determination of probable cause in a self-defense/defense of others
immunity case and instead would look to whether the trial court had a
“substantial basis” for not dismissing the case, utilizing our probable cause
standards which have been “defined as ‘reasonable grounds for belief,
supported by less than prima facie proof but more than mere suspicion.’” Id. at
715. (quoting Commonwealth v. Jones, 217 S.W.3d 190, 200 (Ky. 2006)). The
evidence of record herein was, to say the least, inconsistent and does not
categorically lead to a determination that Alford acted in self-defense.
Therefore, there was no error in the trial court failing to act on its own volition
to dismiss the criminal action.
III. CONCLUSION
We affirm Alford’s conviction and his sentence by the Simpson Circuit
Court.
All sitting. All concur.
30 COUNSEL FOR APPELLANT:
Kayley Barnes Kathleen K. Schmidt Assistant Public Advocates
COUNSEL FOR APPELLEE:
Russell M. Coleman Attorney General of Kentucky
Kristin L. Condor Assistant Solicitor General