Joshua Cotton v. Commonwealth of Kentucky

• Court: Kentucky Supreme Court
• Decided: September 18, 2025
• Docket: 2024-SC-0192
• Status: Unpublished

Opinion

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: SEPTEMBER 18, 2025 NOT TO BE PUBLISHED

Supreme Court of Kentucky 2024-SC-0192-MR

JOSHUA COTTON APPELLANT

ON APPEAL FROM CHRISTIAN CIRCUIT COURT V. HONORABLE JOHN L. ATKINS, JUDGE NO. 22-CR-00190

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

REVERSING IN PART AND REMANDING

Joshua Cotton was convicted of murder and sentenced to 45-years’

imprisonment after a two-day trial. Cotton now appeals his conviction and

sentence as a matter of right. 1 On appeal, Cotton alleges six claims of error: (1)

improper admission of the victim’s identification of Cotton as the shooter; (2)

improper testimony by a law enforcement witness; (3) improper admission of

gruesome autopsy photos; (4) prosecutorial misconduct; (5) failure to consider

probation at sentencing in violation of the youthful offender statutes; and (6)

cumulative error. Finding the trial court erred in failing to consider probation

as a possible sentence, we reverse and remand for resentencing.

1 Ky. Const. § 110(2)(b). FACTUAL AND PROCEDURAL BACKGROUND

On March 2, 2022, Alijah Watts was shot in the abdomen as he sat in his

vehicle in front of a convenience store in Hopkinsville, Kentucky. His

consciousness fading after the shooting, Watts attempted to drive away, but

was unable to maintain his awareness and his vehicle crossed an intersection,

striking two cars and coming to rest in some bushes at the side of a home.

Officers encountered Watts in the vehicle, barely conscious. To keep Watts

awake, officers engaged him in conversation, the conversation eventually

turning to the identity of Watts’s assailant. Watts was able to answer the

question, telling officers it was Cotton, whom Watts knew from the

neighborhood, and who did not like Watts. Emergency medical services arrived

in short order and transported Watts to the hospital. Sadly, Watts died from

the gunshot injury while en route.

Detective Keith Flick began investigating the homicide. He obtained

security footage from the convenience store that viewed the scene and also an

insurance company next door. That footage revealed the driver of another car

had exited his vehicle and entered Watts’s car. After the driver left Watts’s car,

two additional men approached the car from behind the store and then fled on

foot. The two men on foot later rendezvoused with the driver of the other car,

and all three left the scene in the other vehicle.

Local law enforcement posted a picture of the driver on their Facebook

page seeking an identification. An anonymous tip identified the driver as

Christian McKeel. McKeel was arrested and promptly confessed, naming

2 Cotton and a third person, Johnathan Weston, as members of the conspiracy.

Weston and Cotton lived together and were half-brothers. Weston, too,

promptly confessed, and confirmed what McKeel told law enforcement. Cotton

was a juvenile, so police contacted the court designated worker and requested

a pickup order.

Police also obtained a search warrant for the apartment where Cotton

and Weston had been staying. The owner of the apartment told police the pair

had left some items in the apartment that the owner did not want around. In

the apartment, officers located a blue lockbox and when Weston was arrested,

he was in possession of the key. The lockbox contained a .40 caliber handgun

with a shell casing lodged in the gun’s slide. Detectives surmised the shell

casing may have become jammed when a hand, presumably Watts’s, blocked

its ejection.

Officers confirmed McKeel and Weston’s confessions, and by the time

Cotton’s trial began, the two had already resolved their cases. Cotton was tried

before a jury over a two-day period, the details of which will be expanded upon

below as needed. Generally, however, Cotton did not deny his involvement in

the crime, but argued that he did not intend to kill Watts, only to rob him. The

jury found Cotton guilty of murder and recommended 45-years’ imprisonment,

which the trial court imposed.

ANALYSIS

Cotton alleges six points of error in his appeal. First, he argues the trial

court erred by admitting Watts’s hearsay identification of Cotton as the shooter

3 as a dying declaration. Second, he contends some statements made by

Detective Robert Stucki, most notably those relating to dying declarations and

Cotton’s invocation of his right to remain silent, rendered the trial unfair.

Third, Cotton argues the trial court erroneously allowed the admission of

gruesome autopsy photos that prejudiced the jury against him. Fourth, Cotton

finds issue with some statements made by the prosecutor, specifically those

relating to general crime statistics in Hopkinsville, Cotton invoking his right to

silence, and Cotton’s co-defendants taking responsibility for their actions by

accepting plea deals. Fifth, Cotton alleges the trial court erred in failing to

consider probation during sentencing in contravention of the violent youthful

offender statute and Thomas v. Commonwealth, 605 S.W.3d 545, 547-48 (Ky.

2020), abrogated on other grounds by Abbott, Inc. v. Guirgus, 626 S.W.3d 475

(Ky. 2021). Finally, in the event that no one issue creates error sufficient to

warrant reversal, Cotton asks us to reverse based on the cumulative effect of

any errors we identify. We take each argument in turn.

I. Alijah Watts’s statement was properly admitted.

Cotton first argues that the trial court erred in admitting one of the most

damning pieces of evidence against Cotton: the victim’s identification of him as

the shooter. Prior to his death, Watts affirmatively named Cotton as the

perpetrator and briefly described their relationship acrimoniously. That

statement was admitted at trial under the dying declaration exception to our

hearsay rule. Cotton contends this was error because at the time Watts made

the statement, Watts was not “under a sense of impending death.” Turner v.

4 Commonwealth, 5 S.W.3d 119, 122 (Ky. 1999) (quoting Petty v. Commonwealth,

178 Ky. 483, 485, 199 S.W. 20, 21 (1917)). This alleged error is preserved and

so we review for abuse of discretion. Mason v. Commonwealth, 559 S.W.3d

337, 339 (Ky. 2018). Under this standard we reverse only if “the trial judge's

decision was arbitrary, unreasonable, unfair, or unsupported by sound legal

principles.” Id. (quoting Lopez v. Commonwealth, 459 S.W.3d 867, 872-73 (Ky.

2015)). We ultimately hold the statement was a dying declaration properly

admitted under KRE 2 804(b)(2).

Hearsay, “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(c), is generally inadmissible. KRE 802. However,

where, as here, the declarant is unavailable, our rules provide a number of

exceptions to the general rule. KRE 804(b). Among those exceptions is the

“statement under belief of impending death,” or, as it is more colloquially

known, the dying declaration. KRE 804(b)(2). Such statements are “made by a

declarant while believing that the declarant's death was imminent, concerning

the cause or circumstances of what the declarant believed to be his impending

death.” Id.

The proponent of a dying declaration need prove only three elements: (1) the declarant is unavailable as a witness as that term is defined in KRE 804(a); (2) the declaration was made at a time when the declarant believed that his death was imminent; and (3) the declaration concerned the cause or circumstances of what the declarant believed to be his impending death.

2 Kentucky Rules of Evidence.

5 Turner, 5 S.W.3d at 121. (citing Robert G. Lawson, The Kentucky Evidence Law

Handbook § 8.40, at 412–14 (3d ed. Michie 1993)). Here, the controversy

centers upon the second element, whether Watts was aware of his imminent

death. If Watts was aware that he would soon die from the gunshot to his

abdomen, then the statement was admissible. If Watts believed he would live,

then the statement was not a dying declaration.

As Lawson writes, the “core component” to the exception has been set

forth by the U.S. Supreme Court thusly: “’There must be a “settled hopeless

expectation”. . . that death is near at hand, and what is said must have been

spoken in the hush of its impending presence. . . . The patient must have

spoken with the consciousness of a swift and certain doom.’” Robert G.

Lawson, The Kentucky Evidence Law Handbook § 8.40, at 777 (2024 ed.

LexisNexis Matthew Bender 2024) (quoting Shepard v. United States, 290 U.S.

96, 100 (1933)). “In most of the cases in which statements have been admitted

as dying declarations, the declarant either expressed a belief in his impending

death, . . . or a witness testified that the declarant had been told that he was

going to die.” Turner, 5 S.W.3d at 122 (citations omitted). But the declarant

need not make explicit his belief that he is soon to die, nor have it explained to

him; rather, “a declarant's belief in his own impending death can be inferred

from circumstantial evidence.” Id. (citing Wells v. Commonwealth, 892 S.W.2d

299, 302 (Ky. 1995)); see Shepard, 290 U.S. at 100 (“Despair of recovery may

indeed be gathered from the circumstances if the facts support the inference.

6 There is no unyielding ritual of words to be spoken by the dying.” (citation

omitted)).

It is enough if it satisfactorily appears in any mode that the declaration was made under [a sense of impending death], whether it be directly proved by the express language of the declarant, or be inferred from his evident danger or the opinions of the medical or other attendants stated to him, or from his conduct or other circumstances of the case, all of which are resorted to in order to ascertain the state of his mind.

Turner, 5 S.W.3d at 122 (quoting Petty, 178 Ky. at 485, 199 S.W. at 21).

Turner illustrates how a sense of impending death can be inferred from

the circumstances in the absence of either a statement from the victim to that

effect or evidence that the victim was told he would soon be dead. There, Bill

Turner (the father of Joe Turner, for whom Turner gets its name) was found

severely beaten in an apartment in Scottsville, Kentucky. He arrived conscious

at the emergency room, and while there an officer asked who had assaulted

him, to which Turner replied, “my son, Joe.” Turner was transferred to another

hospital, but died shortly after from his injuries. Our opinion makes no

mention of Turner expressing his belief in his imminent death, or of anyone

telling him that he would soon be dead.

At trial, several witnesses testified to the severity of Turner’s injuries.

The officer who found Turner saw him covered in blood and did not believe

Turner would survive. A nurse at the first hospital testified to the severity of

the injuries and also to her belief that when Turner identified his son as his

assailant, he would have been aware that he would soon be dead. Finally, the

doctor who performed Turner’s autopsy testified at the KRE 104(a) hearing that

7 “[his] opinion is that it is more likely than not that a person who received the

injuries that [he] observed both during the autopsy and from reviewing the

medical records would have felt that his death was imminent.” Turner, 5

S.W.3d at 121. Taken together, all of this “was sufficient to support the trial

judge's finding that when Bill Turner identified Appellant as his assailant, he

believed that his death was imminent.” Id. at 122.

The context of the final moments of Watts’s life also support an inference

that Watts would have believed that he would soon be dead. Watts was shot in

the abdomen. Although the wound produced very little blood, Watts

experienced significant internal bleeding that ultimately led to his death.

Although he would have been unaware of the bleeding itself, symptoms of such

blood loss would have been equally alarming. Specifically, the wound caused

him to begin to slip in and out of consciousness, resulting in his crashing his

car into two other vehicles before it came to a rest in the yard of a nearby

residence. When officers found Watts, he was awake, but again frequently

losing consciousness. Only after officers roused him were they able to elicit the

identification of Cotton as the shooter. At other times, Watts was disoriented

and unsure of where he was. Although EMS rushed him to the hospital within

15 minutes, Watts did not survive the journey. Dr. Christopher Keefer, a

forensic pathologist for the Commonwealth, testified as to the extensive

internal bleeding that quickly led to Watts’s death.

Taken together, we do not find error in the trial court’s conclusion that

the identification was made as Watts believed his death was imminent. When

8 he identified Cotton, Watts, in that moment of lucidity, was aware at minimum

that he had been shot and perhaps that he was losing consciousness. Whether

or not in this state he could form a coherent assessment of his condition is

unclear, but we do not begrudge Watts for being unable to keep his wits about

him after being shot in the abdomen and crashing his car. Were we to do so,

we would undermine the dying declaration exception in cases such as this

where a victim with clearly life-threatening injuries, is in a mental state that

impedes self-assessment. In all, then, Watts was sufficiently aware of the

severity of the injury to him, officers who attended to him after the crash were

aware of his rapidly fading degree of consciousness, and the forensic

pathologist testified to the critical nature of the wound Watts sustained. Taken

together, the context in which Watts made his declaration supports a finding

that Watts was operating under a sense of his impending death. The statement

was therefore properly admitted.

II. Det. Stucki’s testimony was not improper.

Cotton’s second claim of error arises from alleged improper testimony

given by Det. Stucki. Cotton identifies four instances where in his view Det.

Stucki’s testimony veered into impermissibility. The first and second are

instances where Det. Stucki stated that one witness confirmed the statement of

another. The third involves Det. Stucki’s defining “dying declaration” for the

jury. And the fourth involves a reference to Cotton’s invocation of his right to

remain silent as well as another instance of hearsay. The details of each

statement will be elaborated upon below. The first two instances were objected

9 to and are preserved, thus we review for harmless error. Carson v.

Commonwealth, 621 S.W.3d 443, 450 (Ky. 2021). “[E]rrors ‘will be deemed

harmless . . . if we can say with fair assurance that the judgment was not

substantially swayed by the error.’” Id. (quoting Brown v. Commonwealth, 313

S.W.3d 577, 595 (Ky. 2010)). The third and fourth instances are not preserved,

so Cotton asks us to review the alleged errors for palpable error under RCr 3

10.26. Under our palpable error standard, “an error is reversible only if a

manifest injustice has resulted from the error. That means that if, upon

consideration of the whole case, a substantial possibility does not exist that the

result would have been different, the error will be deemed nonprejudicial.”

Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006) (quoting Graves v.

Commonwealth, 17 S.W.3d 858, 864 (Ky. 2000)).

The first two statements are of a similar character and will be treated

together. When discussing Det. Stucki’s conversations with Cotton’s co-

defendants, Det. Stucki stated,

Prosecutor: Did you have, based on your investigation and based on what you found, did you have an inkling to believe that they were together during that day and time, sir?

Det. Stucki: I had an inkling, but I had no way to move forward with it until we did speak with Mr. McKeel.

Prosecutor: And once you spoke to Mr. McKeel, the inkling became?

Det. Stucki: Yeah, it became a surety, became-

Defense Counsel: Objection, Judge, it’s going down hearsay.

3 Kentucky Rules of Criminal Procedure.

10 Trial court: Overruled.

Prosecutor: Based on the conversation you had with Mr. McKeel, did it lead to other suspects?

Det. Stucki: It led to Mr. Weston.

Prosecutor: Okay, and then once you spoke with Mr. Weston, did that lead to another suspect or confirmation?

Det. Stucki: Mr. Weston confirmed what Mr. McKeel had said.

Later, Det. Stucki stated the co-defendants confirmed the substance of Watts’s

dying declaration:

Prosecutor: So everything that you had been told from that point was related to the dying declaration, is that correct?

Det. Stucki: That's correct.

Prosecutor: Okay, now dying declaration led to other information, other people to actually confirm-

Defense Counsel: Judge, objection. If she wants to call McKeel and Weston, she can.

Prosecutor: I understand that, Judge. I'm asking that Mr. Detective Stucki, what led him to arrest Joshua Cotton, so there’s clarity provided in this case because so much is at stake regarding Mr. Cotton's life and also the victim.

Trial Court: Overruled.

Prosecutor: So the information that you obtained from the dying declaration led you to McKeel who also confirmed the dying declaration who also, which led you also to the blue box here with the gun with a gun in there with the magazine and the bullets where the keys were found on Mr. Weston, the codefendant. Is that correct?

Det. Stucki: Mostly. It didn’t lead to Mr. McKeel. The investigation followed the trails of the location and the dying declaration. All the evidence and interviews that we conducted did corroborate the dying declaration. Then, yes, ma’am, it did lead us to the location 11 where the homeowner acknowledged that Mr. Weston and Mr. Cotton had been there previously and had left the items there. We did eventually take them into custody and Mr. Weston did have the keys to that safe [blue lockbox] on his person.

Cotton’s point of contention with these statements is that when Det. Stucki

stated that Weston confirmed the statements of McKeel or that Weston and

McKeel’s statements both corroborated Watts’s dying declaration, he

introduced impermissible hearsay. The Commonwealth counters by arguing

the statements fall within the verbal act doctrine. We agree with Cotton, but

hold the statements were harmless.

Hearsay is a concept well known in the legal community, from the

neophyte to the seasoned professional. As our rules define it specifically,

hearsay is “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(c). Prior to the promulgation of our rules of evidence,

frequent reference was made to the concept of “investigative hearsay,” an

apparent exception to the hearsay prohibition for statements made to law

enforcement officers. Robert G. Lawson, The Kentucky Evidence Law Handbook

§ 8.90[4], at 907 (2024 ed. LexisNexis Matthew Bender 2024). Although this

exception has at no time been recognized by this Court, it has proven difficult

to eradicate. See Ruiz v. Commonwealth, 471 S.W.3d 675, 680-81 (Ky. 2015)

(“Lest our repetition of the term ‘investigative hearsay’ be misconstrued, we

state here without equivocation: there is no such thing in our jurisprudence as

‘investigative hearsay.’ There is no special rule of evidence known as

‘investigative hearsay.’ The term simply is not a part of the evidentiary 12 lexicon.”). Perhaps some confusion arises from our acceptance of the verbal

act doctrine, which may look like investigative hearsay and talk like

investigative hearsay, but is not the same as that much discredited concept.

The fundamental difference between impermissible investigative hearsay

and the permissible verbal act doctrine is, “[a]n extrajudicial statement has a

proper nonhearsay use when its utterance (not its substance) is a part of the

issues of the case.” Brewer v. Commonwealth, 206 S.W.3d 343, 351 (Ky. 2006)

(quoting Sanborn v. Commonwealth, 754 S.W.2d 534, 541 (Ky. 1988) (plurality

opinion), overruled on other grounds by Hudson v. Commonwealth, 202 S.W.3d

17, 22 (Ky. 2006)). Under the doctrine, otherwise impermissible statements

can be admitted so long as they are,

“not admitted for the purpose of proving the truth of what was said, but for the purpose of describing the relevant details of what took place.” [Preston v. Commonwealth, 406 S.W.2d 398, 401 (Ky. 1966)]. Importantly, however, the “relevancy [of such statements] does not turn on whether the information asserted tends to prove or disprove an issue in controversy, but on whether the action taken by the police officer in response to the information that was furnished is an issue in controversy.... The rule is that a police officer may testify about information furnished to him only where it tends to explain the action that was taken by the police officer as a result of this information and the taking of that action is an issue in the case.” [Sanborn, 754 S.W.2d at 541.]

Brewer, 206 S.W.3d at 351-52. Accordingly, to determine whether Det.

Stucki’s testimony falls under the verbal act doctrine, we must assess whether

the hearsay statement tends to explain an action Det. Stucki took and whether

that action is an issue in the case.

13 In the first statement, when Det. Stucki discussed Weston’s confirmation

of McKeel’s statement, neither of whom testified at trial, he did so to explain

the course of his investigation. In that instance, no suggestion of what was

being confirmed was given, such that Det. Stucki’s report of Weston’s

confirmation exists on the very outskirts of hearsay generally. But, because

the content of the confirmed statement is unknown, we are unable to say it

was being offered for anything other than to explain the actions of Det. Stucki

in investigating the shooting.

The second statement presents a different issue. There, Det. Stucki

testified that Weston and McKeel corroborated a statement of which the

contents were known to the jury, Watts’s dying declaration. At this point in his

testimony, Det. Stucki had already laid out the path of his investigation and

the jury was aware how Cotton was reached only after interviews with other

suspects. By testifying that Weston and McKeel backed up the dying

declaration, Det. Stucki was indicating to the jury that the hearsay statements

made by the co-defendant’s were true and consistent with the Commonwealth’s

theory of the case; in other words, it was offered to prove the truth of the

matter asserted, not to lay out the steps of the investigation.

As to the second part of the doctrine, both statements find the same

conclusion. Cotton’s defense at trial was not that he was innocent and that the

police arrested the wrong man. Rather, Cotton acknowledged his role as the

shooter, but disputed how the shooting occurred. Although the

Commonwealth may have found setting out the path of the investigation played

14 a valuable narrative function for its case-in-chief, the investigation itself was

not at issue. Because Cotton was not challenging the investigation, the verbal

act doctrine does not apply and the statements remain impermissible hearsay.

Nevertheless, we find the error harmless in large part for the same

reason we found the verbal act doctrine to not apply: Cotton conceded that he

was the shooter. The impermissible statements went to the identity of the

shooter, the very question that had been firmly established by Watts’s dying

declaration and by Cotton’s defense at trial. Given that the hearsay would not

have induced the jury to find anything that was not already established by

other permissible evidence or by Cotton’s own acknowledgment, the

statements’ erroneous admission was harmless.

We next address the unpreserved claims. First, Det. Stucki’s definition

of “dying declaration” to the jury:

Prosecutor: Okay, and I know that this may be a legal term but and most people may know this but just in case they don't, when you say dying declaration, can you explain what a dying declaration is, sir?

Det. Stucki: When someone is in a situation where they believe they might be dying, courts have recognized that they’re much less likely to be lying under those circumstances. The circumstances that their life is ending gives credence to what they're saying.

Although Det. Stucki’s definition generally captured the concept behind why

courts permit an exception to the hearsay rules for dying declarations, the

rationale behind the law is not an appropriate way to frame the declaration

before the jury. Couching his investigation of the dying statement within the

legal framework allowed Det. Stucki to impermissibly bolster the value of

15 Watts’s declaration to the jury. In essence, Det. Stucki told the jury that, as a

matter of law, the jury should place more weight upon the dying declaration

than perhaps they would have otherwise have been inclined to do. The recent

opinions of this Court have taken a strong position against impermissible

bolstering. See, e.g., Boggs v. Commonwealth, ___ S.W.3d ___, 2025 WL

1717814, at *7 (Ky. 2025) (“We have spoken strongly on this issue because we

declared more than thirty years ago that ‘the law in Kentucky [on improper

bolstering] should be clear.’” (quoting Hall v. Commonwealth, 862 S.W.2d 321,

322 (Ky. 1993)). While the normal bolstering scenario involves one witness

supporting the credibility of another, Det. Stucki’s recitation of the dying

declaration concept was of the same kind. By placing the imprimatur of the

state upon the declaration—stating, "courts have recognized that they’re much

less likely to be lying under those circumstances”—Det. Stucki impermissibly

vouched for the credibility of Watts.

Though the testimony may have been error, we do not hold that it was

palpable error. Again, when we look to what was being bolstered, Watts’s

declaration that Cotton was the shooter, we find that any impermissible

bolstering of that statement had little effect on the trial. Cotton did not contest

his role as the shooter, so Det. Stucki’s comment would have done little to

establish what had already been conceded. In the context of the trial, the

discussion of dying declarations did not amount to manifest injustice.

Finally, we address Det. Stucki’s reference to Cotton’s invocation of his

right to remain silent:

16 Det. Stucki: Mr. Cotton invoked his Miranda [v. Arizona, 384 U.S. 436 (1966),] rights and didn't answer any questions. Mr. Weston did confirm everything that we’d already been told to that point.

Prosecutor: So everything that you had been told from that point was related to the dying declaration, is that correct?

Det. Stucki: That’s correct.

“In general, ‘[t]he Commonwealth is prohibited from introducing evidence or

commenting in any manner on a defendant's silence once that defendant has

been informed of his rights and taken into custody.’” Manning v.

Commonwealth, 701 S.W.3d 478, 508 (Ky. 2024) (quoting Hunt v.

Commonwealth, 304 S.W.3d 15, 35 (Ky. 2009)). However,

not every isolated instance referring to post-arrest silence will be reversible error. It is only reversible error where post-arrest silence is deliberately used to impeach an explanation subsequently offered at trial or where there is a similar reason to believe the defendant has been prejudiced by reference to the exercise of his silence as a prosecutorial tool. The usual situation where reversal occurs is where the prosecutor has repeated and emphasized post- arrest silence as a prosecutorial tool.

Id. at 508-09 (quoting Wallen v. Commonwealth, 657 S.W.2d 232, 233 (Ky.

1983)).

In Manning, we found a witness’s reference to the defendant’s post-arrest

silence to be acceptable where the comment was not made in response to a

direct question and no attempt was made to draw attention to that silence.

701 S.W.3d at 509. Such is also the case here. Stucki’s comment was made

as the Commonwealth continued to establish the path of the investigation. The

reference to Miranda was made in passing and not dwelled upon. The mention

of Cotton’s invocation of his Miranda rights, then, was not reversible error,

17 palpable or otherwise. To the extent the broader statement also contains

impermissible hearsay similar to that already discussed, we will not find an

error palpable where we have already found it harmless.

In sum, although some of Det. Stucki’s testimony was given in error,

those errors were either harmless or did not rise to the level of manifest

injustice. We will not reverse Cotton’s conviction on this issue.

III. The autopsy photos were properly admitted.

Cotton next argues that the trial court erred in admitting two autopsy

photos over Cotton’s objection. Both photos partially depicted Watts’s body in

an attempt to illustrate the path of the bullet. The first shows the inside of the

body after the ribs were cut through, and with the heart and lungs removed. A

metal probe shows the direction of the bullet’s path. The second photo is a

closeup of the first, showing in detail the metal probe as it passes through a

large vein and terminates at a large flat bone in the back of the pelvis. As

before, this issue is preserved and so we review for harmless error. Because

these photos come nowhere near the degree of gruesomeness required to find

error as to their admission, we decline to reverse on this issue.

Relevant evidence “may be excluded if its probative value is substantially

outweighed by the danger of undue prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, or needless

presentation of cumulative evidence.” KRE 403. As Cotton acknowledges,

“prior decisions of this Court have generally approved of the admission of

graphic photos,” Hall v. Commonwealth, 468 S.W.3d 814, 822 (Ky. 2015),

18 though “such photographs are not automatically admissible.” Id. at 823. But,

in large part, “our case law has been interpreted as laying out a bright line rule

that gruesome victim photos are per se admissible subject only to clearly

delineated exceptions, such as when the body had been mutilated or has

decomposed.” Id. at 822-23.

Instances where we have found gruesome photos to have been

improperly admitted are typically those where a plethora of images were shown

to the jury. In Hall, for example, the Commonwealth sought to introduce 28

photos, many “depicting the same scene or subject merely from different

vantage points” and “some photos were left displayed, and magnified, on the

digital projector while testimony was elicited about details that did not concern

the photos.” Burdette v. Commonwealth, 664 S.W.3d 605, 617 (Ky. 2023)

(discussing Hall). In addition, the photos were admitted as a group, with the

trial judge neglecting to assess the merits of each image. Hall, 468 S.W.3d at

827.

The alleged error here is far from the situation presented in Hall. At trial,

the Commonwealth sought to admit only four photos from the autopsy into

evidence and Cotton objected to only the two described above. Though the

photos were gruesome, they were no more gruesome than the autopsy photos

we regularly allow to be admitted during trial. And the photos did assist the

jury to understand how Watts was killed. As Cotton notes when discussing the

dying declaration, the wound did not seem as serious on the outside as it

actually was. There was an entry wound, but no exit wound, and very little

19 blood. The autopsy photos were useful in illustrating how the bullet was able

to pierce a vein and cause the catastrophic internal bleeding that led to Watts’s

death. Though the second photo was largely duplicative, being a closeup of the

first, it was nevertheless helpful in showing that otherwise invisible internal

injury. Finally, we are satisfied that the trial judge gave due consideration to

each photo and appropriately weighed its probative value against its prejudicial

effect.

Lastly, although Cotton primarily describes this error as one related to

prejudice, he also makes an argument as to their probative value. Although

Cotton notes that the manner of Watts’s death was never at issue, at its heart,

this error is alleged to stem from what the Commonwealth asked the forensic

pathologist to do after discussing the photos, to wit, stand and point on his

body the path of the bullet. In Cotton’s view, this demonstration was of far

greater illustrative value than the photos, rendering their admission

superfluous.

As we have already stated, the photos were indeed probative of the

internal injuries Watts sustained when he was shot. We would add only that

“the prosecution is permitted to prove its case by competent evidence of its own

choosing, and the defendant may not stipulate away the parts of the case that

he does not want the jury to see.” Pollini v. Commonwealth, 172 S.W.3d 418,

424 (Ky. 2005) (quoting Johnson v. Commonwealth, 105 S.W.3d 430, 438–39

(Ky. 2003)). The value of the photos was not only in showing the trajectory of

the bullet, but also in showing how that trajectory impacted Watts’s body to

20 lead to his death. They were certainly unpleasant for the jury to view, but they

were more probative than prejudicial. We hold the trial court committed no

error in admitting the autopsy photos.

IV. The prosecutor’s statements did not create manifest injustice.

Next, Cotton argues that the prosecutor’s improper statements or

improper questions violated his right to a fair trial. Cotton identifies three

instances of alleged prosecutorial misconduct: (1) the prosecutor’s recitation of

local crime statistics in her opening; (2) questioning that drew attention to

Cotton’s invocation of his right to remain silent; and (3) questions that drew

attention to Cotton’s co-defendants’ willingness to take plea deals and take

responsibility. Cotton did not make contemporaneous objections to the

statements and asks us to conduct palpable error review under RCr 10.26.

Accordingly, we review for manifest injustice, seeking an “error . . . so grave in

nature that if it were uncorrected, it would seriously affect the fairness of the

proceedings.” Johnson v. Commonwealth, 680 S.W.3d 814, 824 (Ky. 2023)

(quoting Brewer, 206 S.W.3d at 349).

“Prosecutorial misconduct is ‘a prosecutor's improper or illegal act

involving an attempt to persuade the jury to wrongly convict a defendant or

assess an unjustified punishment.’” Murphy v. Commonwealth, 509 S.W.3d 34,

49 (Ky. 2017) (quoting Commonwealth v. McGorman, 489 S.W.3d 731, 741–742

(Ky. 2016)). “Prosecutorial misconduct may result from a variety of acts,

including improper questioning and improper closing argument. ‘Any

consideration on appeal of alleged prosecutorial misconduct must center on the

21 overall fairness of the entire trial.’” Noakes v. Commonwealth, 354 S.W.3d 116,

121 (Ky. 2011) (quoting Partin v. Commonwealth, 918 S.W.2d 219, 224

(Ky.1996)) (internal citations omitted). If we determine the prosecutor

committed an act of misconduct, under our palpable error standard, we will

only reverse if the misconduct was flagrant. Brafman v. Commonwealth, 612

S.W.3d 850, 861 (Ky. 2020). To aid our determination, we weigh four factors,

“namely (1) whether the remarks tended to mislead the jury or to prejudice the

accused; (2) whether they were isolated or extensive; (3) whether they were

deliberately or accidentally placed before the jury; and (4) the strength of the

evidence against the accused.” Id.

We take each alleged incident of misconduct in turn. First is the

prosecutor’s opening statement which included the following:

In 2021, the Hopkinsville Police Department responded or had 263 shots fired calls. 263 shots fired calls. In 2022, the Hopkinsville Police Department had 188 shots fired calls. Nineteen people were shot in 2022, fourteen people were shot in 2021. This year alone, as of the end of July, they’ve had over 133 shots fired calls. And out of those, thirteen people were shot.

So, let’s go back to 2022. Unfortunately in 2022, one of those nineteen people was Alijah Watts. On March the 2nd, 2022, at the Casey’s General Store right there on Fort Campbell Boulevard, a shooting took place and it ended his life. He was only nineteen years old and what our evidence is going to show is that Joshua Cotton pulled the trigger to end his life.

So, that’s it. We’re going to have officers to come and testify. You’re going to hear from Alijah’s own mouth who shot him because they asked him who shot him and he said Joshua Cotton. We have two other accomplices who were a part of that issue who are going to say it was Joshua Cotton who pulled the trigger. So, what we’re looking at here is whether or not we’re going to deem those 188 shots fired calls that our Hopkinsville Police Department had to respond to if we’re going to take any more. 22 When the prosecutor provided crime statistics and then asked the jury,

“if we’re going to take any more,” she engaged in “send a message”

argumentation that we have long disapproved of. See Benjamin v.

Commonwealth, 266 S.W.3d 775, 792 (Ky. 2008) (“It is true that this Court has

repeatedly indicated that ‘send a message’ statements are improper in the

Commonwealth and prosecutors should not engage in such argument.”).

However, though the statement may have been error, it is not necessarily

reversible error. Hall v. Commonwealth, 551 S.W.3d 7, 19 (Ky. 2018). Under

our palpable error standard, we will only reverse if the misconduct was

flagrant.

Thus, we apply our four factors. As to the first, the remarks did

prejudice Cotton to the jury. When the prosecutor asked the jury to make an

example of Cotton as a sign that the community would no longer suffer gun

violence, she asked the jury to convict him for reasons other than the evidence

against him. To do so is undoubtedly prejudicial, and so that factor weighs in

Cotton’s favor. Second, in the context of the Commonwealth’s opening

statement, the remarks were extensive. The excerpted portion transcribed

above constitutes two minutes of the roughly three-minute-long opening given

by the prosecutor. Of that portion, only a little less than half was improper.

This was an extensive share of the opening and so that factor also weighs in

favor of Cotton. Third, the prosecutor clearly made the statement deliberately

to the jury. The statement was not an off-the-cuff digression; these were

23 prepared remarks that formed the core of the opening statement. The third

factor, then, also falls in Cotton’s favor.

Finally, and perhaps most crucially, we reach the fourth factor: the

strength of the evidence against Cotton. Cotton was positively identified as the

shooter by the victim and was seen on the security recording walking in the

direction of Watts’s car with his co-defendants. McKeel was later seen picking

up Cotton and Weston as the two left the scene. McKeel led police to Weston,

and Cotton was staying with Weston at the time of the murder. Police located

the lockbox in Weston and Cotton’s residence and inside the safe was the gun

police believed was used to shoot Watts. In short, the Commonwealth

presented strong, nearly incontrovertible evidence that Cotton approached

Watts’s car with a gun, entered that car, drew the gun, and pointed it at Watts.

The presence of a round stuck in the firearm’s slide indicates a struggle for the

weapon ensued and Watts was fatally shot. Although Cotton asks us to believe

the jury had a choice between two options—intentional murder or

manslaughter—the jury was also able to find Cotton guilty of wanton murder

under the instructions as given. Whatever force there may be to Cotton’s

argument as to the establishment of the requisite mens rea for intentional

murder, Cotton would be at pains to show how pointing a loaded gun at Watts

with his finger on the trigger while in close proximity to the victim during a

robbery would not constitute “wantonly engaging in conduct which created a

grave risk of death to another and thereby caused the death of Alijah Watts

24 under circumstances manifesting extreme indifference to human life.” The

fourth factor, then, strongly favors the Commonwealth.

The weight of the evidence ultimately proves the deciding factor. While

the factors guide the Court in its determination, we must always return to the

core of the prosecutorial misconduct standard, the “overall fairness of the

entire trial.” Noakes, 354 S.W.3d at 121. Here, while three of the four factors

favor Cotton, the strength of the evidence against him leads us to hold that the

impermissible opening statement did not “so seriously [affect] the fairness,

integrity, or public reputation of the proceeding as to be shocking or

jurisprudentially intolerable.” Barrett v. Commonwealth, 677 S.W.3d 326, 336

(Ky. 2023) (quoting Miller v. Commonwealth, 283 S.W.3d 690, 695 (Ky. 2009)).

The Commonwealth’s statements were unnecessary and undeniably outside

the purview of proper argumentation, and, if repeated, will inevitably lead to

reversal in some future case. But today, the specific context of the case against

Cotton does not call for that result. The Commonwealth’s unforced error is

saved by the quality of the police work that built the case against Cotton.

Although the Commonwealth’s opening is the most egregious allegation

of prosecutorial misconduct Cotton makes, it is not the only allegation. Cotton

also alleges misconduct for comments related to Cotton’s invocation of his right

to remain silent and comments on Cotton’s co-defendants’ decision to resolve

their cases. As to the references to Miranda, Cotton alleges two instances,

although our review of the case reveals only one instance of the prosecutor

25 specifically mentioning Cotton’s invocation. 4 As noted above, “In general, ‘[t]he

Commonwealth is prohibited from introducing evidence or commenting in any

manner on a defendant's silence once that defendant has been informed of his

rights and taken into custody.’” Manning, 701 S.W.3d at 508 (quoting Hunt,

304 S.W.3d at 35). But if the comment was minor and not dwelled upon, we

have not found reversible error. Manning, 701 S.W.3d at 508-09. Unlike the

instance with Det. Stucki, this reference to Miranda is more offensive because

the prosecutor specifically asked about Cotton’s invocation. But, after Det.

Stucki’s short response of “yes,” the prosecutor moved on. The question was

error, but not flagrant. The question and response were prejudicial and

deliberate, but were not extensive, and, as already set forth, the strength of the

evidence against Cotton was strong. The analysis weighs more strongly for the

Commonwealth than with the opening statement. Since we declined to reverse

for the improper opening, we will not do so here.

Finally, we address the prosecutor’s references to Cotton’s co-defendants’

resolutions of their own cases. Generally, “[i]t has long been the rule in this

Commonwealth that it is improper to show that a co-indictee has already been

convicted under the indictment.” Parido v. Commonwealth, 547 S.W.2d 125,

127 (Ky. 1977) (quoting Martin v. Commonwealth, 477 S.W.2d 506, 508 (Ky.

1972)). But the core issue we have found with such testimony is not its

mention per se, but rather its use as substantive evidence against the

4 The other instance comes from the testimony of Det. Stucki in response to a

general question about the investigation. That comment is addressed in part II, supra.

26 defendant on trial. See Tipton v. Commonwealth, 640 S.W.2d 818, 820 (Ky.

1982) (“To make such a reference and to blatantly use the conviction as

substantive evidence of guilt of the indictee now on trial is improper regardless

of whether the guilt has been established by plea or verdict, whether the

indictee does or does not testify, and whether or not his testimony implicates

the defendant on trial.”). Here, discussion of the co-defendants’ cases was not

a blatant attempt to use their guilt as evidence of Cotton’s guilt. Rather,

discussing them served to fill in a hole highlighted by Cotton at trial, namely,

where were the other two individuals involved in the shooting? Cotton made

this a central theme in his closing and when the Commonwealth spoke in

response, they answered that question by explaining the co-defendants had

resolved their cases. What resolution they reached is ambiguous, the jury only

knew they were not at trial because they did not need to be. In this context, we

do not believe the Commonwealth ran afoul of the proscription identified in

Parido because the comments did not go to the substantive question of Cotton’s

guilt. Cf. Manning, 701 S.W.3d at 503-04 (holding comments about a co-

defendant’s guilty plea were not error when they were made to impeach co-

defendant). Accordingly, the comments were not error.

To summarize, although Cotton was correct in alleging error in two of his

three claims, we hold none of the errors amounted to flagrant prosecutorial

misconduct. But we cannot ignore that the Commonwealth was playing fast

and loose with our rules during this trial and would do well to reign in their

commentary in the future. As we have said,

27 Prosecutors have a special role in the judicial system. Unlike other attorneys, “[a] prosecutor has the responsibility of a minister of justice and not simply that of an advocate.” See Model Rules of Prof'l Conduct R. 3.8 cmt. 1. The sovereign, represented in a criminal trial by the prosecutor, has an interest “not that it shall win a case, but that justice shall be done.”

Commonwealth Attorneys should not rely on the hope that known errors they make will not be considered palpable on appeal but should instead engage in best practices.

Stephens v. Commonwealth, 680 S.W.3d 887, 911 (Ky. 2023) (quoting Caudill v.

Commonwealth, 374 S.W.3d 301, 309 (Ky. 2012)). Our holding today rests

largely on the specific circumstances presented to us. Where the evidence is

weaker, similar comments may not survive the searching review of the

appellate process. But today, we will not reverse Cotton’s case on this basis.

V. The trial court erred in failing to consider probation at sentencing.

The penultimate issue we address is whether the trial court erred in

indicating in its final judgment that Cotton was “ineligible for probation. . .

because of the applicability of KRS 5 532.080, KRS 439.4301, or KRS 533.060.”

Cotton argues that in doing so, the trial court violated Thomas v.

Commonwealth and mistakenly applied statutes only applicable to adult

offenders to a minor. The Commonwealth contends that the box checked on

the final judgment form was simply a clerical error and that the trial court did

indeed consider probation and elected not to impose it. 6 Because the record

5 Kentucky Revised Statutes.

6 The Commonwealth also suggests it takes issue with Cotton raising the issue

for the first time on appeal, but this question is squarely resolved by Thomas: “even though Thomas himself failed to raise the issue of probation eligibility before the trial 28 provides no indication the incorrect box was marked or that probation was

considered, we vacate and remand for resentencing.

The legal basis underlying this appeal is presented to us almost exactly

as it was in Thomas—indeed, both Thomas and this case arise from a final

judgment entered by the same trial judge. In Thomas, Layw Thomas pled

guilty to a variety of violent crimes committed when he was 17 years old. In its

final judgment, the trial court marked the box indicating Thomas was “not

eligible for probation” and did not state for the record its reason for finding

Thomas ineligible.

We held, “the trial court erred by failing to follow the directives of

Kentucky's Juvenile Code by imposing a sentence of imprisonment in violation

of KRS 533.010, which requires consideration of probation, conditional

discharge, or an alternative sentence before imposing imprisonment.” Thomas

605 S.W.3d at 560-61. Our analysis is pertinent here:

KRS 533.010(1) provides that “[a]ny person who has been convicted of a crime and who has not been sentenced to death may be sentenced to probation, probation with an alternative sentencing plan, or conditional discharge as provided in this chapter.” KRS 533.010(2) provides that “[b]efore imposition of a sentence of imprisonment, the court shall consider probation, probation with an alternative sentencing plan, or conditional discharge. Unless the defendant is a violent felon as defined in KRS 439.3401 or a statute prohibits probation....” And KRS 533.060(1) provides, in part, that “[w]hen a person has been convicted of an offense or has entered a plea of guilty to an offense classified as a Class A, B, or C felony and the commission of the offense involved the use of a weapon from which a shot or projectile may be discharged that is readily capable of producing death or other

court, sentencing issues may be raised for the first time on appeal.” Thomas, 605 S.W.3d at 561.

29 serious physical injury, the person shall not be eligible for probation....”

These statutes establish that a trial court must consider probation for an adult defendant before imposing a sentence of imprisonment unless: (1) the defendant has been sentenced to death; (2) the crime of which the defendant stands convicted falls within one of the categories outlined in KRS 533.060; or (3) the defendant is considered a violent offender as defined in KRS 439.3401. But this standard is different when the defendant being sentenced committed the underlying crimes before he or she reached the age of majority and was transferred to circuit court to be prosecuted as a youthful offender.

The crimes for which Thomas entered pleas would certainly render him ineligible for probation consideration by operation of either KRS 533.060(1) or KRS 533.010(2) if the crimes had been committed after he reached the age of majority. But, as the parties agree, even though Thomas was transferred to the circuit court to be tried as an adult under KRS 635.020, he was still entitled to the protections provided for youthful offenders under Kentucky's Juvenile Code. With respect to KRS 533.060, Kentucky's Juvenile Code explicitly states that the probation limitations contained in KRS 533.060(1) are inapplicable to youthful offenders like Thomas. With respect to KRS 533.010(2), while none of the provisions of Kentucky's Juvenile Code explicitly states that KRS 533.010(2) is inapplicable to youthful offenders, based on our holdings in Commonwealth v. Merriman,[7] Buckner v. Commonwealth,[8] and Edwards v. Harrod,[9] it is perhaps unclear whether the statute is applicable to youthful offenders who are sentenced after they reach age eighteen.

. . . [T]hese cases did not decide the precise issue now before us: whether the probation limitation for violent offenders contained in KRS 533.010(2) applies to youthful offenders sentenced after they reach the age of majority? As explained below, we now hold, consistent with our holdings in Merriman, Buckner, and Edwards, that considering “statutory interpretation, logic, and belief in the good sense of the legislature,” the violent offender statute is not

7 265 S.W.3d 196, 198–201 (Ky. 2008).

8 No. 2006-SC-000479-MR, 2008 WL 5051578 (Ky. Nov. 26, 2008).

9 391 S.W.3d 755, 760–62 (Ky. 2013).

30 applicable to youthful offenders who are convicted or sentenced after they reach the age of majority.

....

There are other subsections of KRS 640.030, as well as other provisions of KRS Chapter 640 that were not relevant in Merriman that indicate that the legislature intended for probation to be available as a sentencing option for youthful offenders, even when such offenders qualify as a violent offender and are sentenced after they reach the age of majority. Again, under KRS 640.030(2), when a youthful offender reaches the age of majority and is returned to the trial court for resentencing, “the length and all other conditions of the Youthful Offender's sentence remain the same except for whatever statutory determinations the trial court makes at that review.” The “determinations” available for youthful offenders who reach the age of majority are “to place the Youthful Offender on probation or conditional discharge, incarcerate him in adult prison, or return him to the Department of Juvenile Justice to complete a treatment program of up to five months.” KRS 630.030(3) provides that those youthful offenders who have “attained the age of eighteen (18) years but less than eighteen (18) years and five (5) months prior to sentencing” shall also be returned for resentencing when they are eighteen years and five months old, and the trial court is again directed to make the same “determinations,” including whether the defendant is a good candidate for probation.

Also, KRS 640.075(1) provides that youthful offenders who were committed to the Department of Corrections under KRS 640.030(2)(c) may, until age twenty-one, remain in the custody of the Department of Juvenile Justice under some circumstances. KRS 640.075(4) then provides that the “youthful offender whose custody has been retained under subsection (1) of this section ... may, on one (1) occasion and after the completion of a minimum twelve (12) months additional service of sentence, petition the sentencing Circuit Court for reconsideration of probation and, except as provided in KRS 439.3401, may be considered for early parole eligibility.”

[T]oday we merely hold that trial courts must consider probation for youthful offenders who also qualify as violent offenders before committing them to the Department of Corrections. This Court's current holding does not undermine the trial court's ample 31 discretion to hold youthful offenders fully accountable for their actions but simply provides for an additional avenue for rehabilitating delinquent youth.

Thomas, 605 S.W.3d at 561-66.

The record in this case is on all fours with that in Thomas. No party

disputes that Cotton was transferred to the circuit court as a youthful offender

pursuant to KRS 635.020. The only reference to probation in the record, either

written or video recorded, is the checked box indicating that the trial court

found Cotton to be ineligible for probation. We are given no indication why or

how the trial court came to this conclusion. Perhaps the Commonwealth is

correct that the trial court considered the victim impact statements in the

context of probation and the box checking was done in error, but the silence of

the record is deafening. As in Thomas, the trial court marked Cotton as

ineligible for probation when it was statutorily obligated to consider probation

and the record provides no indication that probation was ever contemplated as

a sentencing option. 10 And so, as in Thomas, we hold the trial court erred in

neglecting to do so. Accordingly, we vacate the judgment against Cotton and

remand for resentencing to give the trial court the opportunity to consider

probating Cotton’s sentence.

10 Cotton’s failure to seek probation at sentencing did not obviate the trial

court’s responsibility to consider it for youthful offenders. Thomas, 605 S.W.3d at 561.

32 VI. No cumulative error occurred.

Finally, Cotton argues that even if no single error suffices to reverse his

conviction, then the cumulative effect of those errors should do so.

“[C]umulative error, the doctrine under which multiple errors, although

harmless individually, may be deemed reversible if their cumulative effect is to

render the trial fundamentally unfair.” Brown, 313 S.W.3d at 631.

We have found cumulative error only where the individual errors were themselves substantial, bordering, at least, on the prejudicial. Where. . . none of the errors individually raised any real question of prejudice, we have declined to hold that the absence of prejudice plus the absence of prejudice somehow adds up to prejudice.

Id. (internal citations omitted).

This court has reversed convictions for cumulative error only in

exceedingly rare circumstances. Indeed, our research reveals only two

published cases where the doctrine has been successfully argued: Funk v.

Commonwealth, 842 S.W.2d 476, 483 (Ky.1992) and Peters v. Commonwealth,

477 S.W.2d 154, 157 (Ky.1972). Funk is not particularly instructive on the

question of when application of the doctrine is appropriate, because that case

was not reversed on the basis of cumulative error; rather, the Court found

three individual instances of reversible error, but nonetheless opined in dicta

“that if each of these errors were not, in and of itself, sufficient to require a

reversal, the cumulative effect of the prejudice from all three would certainly so

require.” Funk, 842 S.W.3d at 483. Our current approach to the cumulative

error doctrine would have prevented us from addressing the issue, see, e.g.,

Brafman, 612 S.W.3d at 870 (“There are multiple errors in this case, but the

33 prosecutorial misconduct was enough to warrant reversal. Therefore, we have

no reason to determine whether the cumulative effect of the other errors would

require reversal.”), but Funk did so and has become a common citation for our

cumulative error analyses. See, e.g., Brown, 313 S.W.3d at 631 (citing Funk for

the principal that “[w]e have found cumulative error only where the individual

errors were themselves substantial, bordering, at least, on the prejudicial.”) 11

Peters is only slightly more instructive. Although the case apparently

predates our current nomenclature for cumulative error, the Court’s concept of

the doctrine was the same. In Peters, Jesse Peters was sentenced to death for

the murder of his mother. On appeal, we reversed his sentence of death

because of improper voir dire procedures before addressing defects in the guilt-

phase of the trial. Peters, 477 S.W.2d at 157 (reversing based on the U.S.

Supreme Court decision in Jaggers v. Kentucky, 403 U.S. 946 (1971)). The

Court then addressed a large number of trial errors in cursory fashion without

finding any of them individually sufficient to merit reversal. However, we

reversed Peters’s conviction because “a number of trial errors were made,

neither of which taken alone would have justified a reversal; but the

accumulation of these errors inclines this court to also reverse the conviction

with directions to grant appellant a full, new trial.” Id. at 158. Of course, the

brief nature with which our predecessor court treated the trial errors leaves a

great many questions as to the severity of those errors; certainly the

11 Brown’s cumulative error analysis has been cited in 137 opinions, not

including this one

34 descriptions we are given do not paint the picture of errors “bordering, at least,

on the prejudicial.”

All of this is to say that our jurisprudence affords very little guidance as

to when cumulative error justifies reversal. Our review of the cases reiterates

that the errors must be significant, although ultimately non-prejudicial by the

specific circumstances of the case, as the well-worn words of Brown attest.

But the doctrine of cumulative error by its very nature also suggests that we

must find more than one nearly-prejudicial error. To rephrase another well-

worn adage regarding cumulative error, we decline to hold that a single

borderline error plus other minor errors adds up to prejudice. That is the case

here.

The prosecutor’s misstep in her opening was a significant error, deemed

nonprejudicial because of the strength of the evidence against Cotton. The

most serious of the other errors we identified, the prosecutor’s reference to

Miranda, was not bordering on the prejudicial. The remainder did not nearly

approach the level of severity needed to justify reversal. In Cotton’s case, one

serious error without others of similar severity does not justify reversal under

the cumulative error doctrine.

CONCLUSION

For the foregoing reasons, we affirm Cotton’s conviction for murder, but

reverse Cotton’s sentence and remand for proceedings consistent with this

opinion.

All sitting. All concur.

35 COUNSEL FOR APPELLANT:

Robert C. Yang Assistant Public Advocate

COUNSEL FOR APPELLEE:

Russell M. Coleman Attorney General of Kentucky

Stephanie L. McKeehan Assistant Attorney General